Bagley v. Washington Tp. Hospital Dist., S.F. 21831

CourtUnited States State Supreme Court (California)
Citation65 Cal.2d 499,421 P.2d 409,55 Cal.Rptr. 401
Parties, 421 P.2d 409 Nellie BAGLEY, Plaintiff and Appellant, v. WASHINGTON TOWNSHIP HOSPITAL DISTRICT et al., Defendants and Respondents. In Bank
Docket NumberS.F. 21831
Decision Date20 December 1966

Levy, DeRoy, Geffner & Van Bourg, Victor J. Van Bourg, Stewart Weinberg, Davis & Cowell and Robert P. Cowell, San Francisco, for plaintiff and appellant.

Marshall W. Krause, San Francisco, Albert M. Bendich, Berkeley, and Arthur Wells, Jr., San Jose, as amici curiae on behalf of plaintiff and appellant.

Sabraw & Avera and Fred E. Avera, Fremont, for defendants and respondents.

TOBRINER, Justice.

In the present case we consider once again the constitutionality of restraints imposed upon the political activities of a public employee. We once again review the factors which circumscribe the power of the government to exact as a condition of public employment a waiver of constitutional rights.

We have recently held that only a 'compelling' public interest can justify the imposition of restraints upon the political activities of public employees and that, 'It must appear that the restrictions * * * are not broader than are required to preserve the efficiency and integrity of the public service.' (Fort v. Civil Service Commission (1964) 61 Cal.2d 331, 337--338, 38 Cal.Rptr. 625, 629, 392 P.2d 385, 389.) Similarly, in the present case, we hold that a governmental agency which would require a waiver of constitutional rights as a condition of public employment must demonstrate: (1) that the political restraints rationally relate to the enhancement of the public service, (2) that the benefits which the public gains by the restraints outweigh the resulting impairment of constitutional rights, and (3) that no alternatives less subversive of constitutional rights are available.

According to defendants, the particular restraints involved here may be sustained because they do no more than prohibit the public employee from campaigning against his own superior, an inhibition which has been upheld in Fort. We shall explain, however, that these restraints cover a far wider field of political participation than the campaign against one's superior. To the extent that the restraints operate beyond the sphere of the proffered justification they advance no compelling public interest and exact the waiver of constitutional rights without compensating public benefit. Such restraints cannot stand; a dismissal predicated upon them must be reversed.

In April 1960 the defendant hospital district hired plaintiff as a nurse's aide. In this capacity plaintiff performed such tasks as bathing patients, changing beds, and taking temperatures. The record shows that plaintiff consistently performed her assigned duties to the complete satisfaction of her superiors.

Late in 1963 a number of citizens became dissatisfied with the policies of the defendant district and commenced a campaign to recall from office certain of its directors. Plaintiff participated in the activities of this group by attending some of its meetings, circulating recall petitions and distributing literature. The record indicates that plaintiff confined her activities on behalf of the recall campaign to her off-duty hours and that in seeking to influence interested citizens to vote for the recall she did not advise them of her employment by the district.

On February 7, 1964, the hospital administrator issued to all hospital personnel a memorandum entitled 'Political Activities of Public Employees.' The memorandum stated: 'Notice is hereby given that the Board of Directors of the Washington Township Hospital District (has) instructed the Administrator to place all employees on notice that employee participation in any political activity for or against any condidate or ballot measure pertaining to the * * * District is unlawful and will not be acceptable conduct for an employee of this hospital and shall constitute grounds for disciplinary action and/or dismissal.' The memorandum proceeded to state that the employees were 'further advised' of certain sections of the Government Code relating to the political activities of public employees. The memorandum quoted in ful the language of Government Code section 3205 which provides: 'No officer or employee whose position is not exempt from the operation of a civil service personnel or merit system of a local agency shall take an active part in any campaign for or against any candidate, except himself, for an office of such local agency, or for or against any ballot measure relating to the recall of any elected official of the local agency.'

Plaintiff thereupon sought to enjoin the district from representing to its employees that participation in the recall campaign was unlawful and from threatening or instituting reprisals against any employee for participating in that campaign.

While plaintiff's suit for an injunction was pending, the assistant hospital administrator called plaintiff into his office and demanded her assurance that she had withdrawn from participation in the recall movement and that she intended 'to obey the letter and spirit of the directive of the Board of Directors.' He also stated that plaintiff's failure to give such assurance would result in her prompt dismissal 'on the ground that active participation in recall activities by any employee while remaining an employee of the hospital district causes a disruption of employee relations by creating dissension and unrest among employees, which in turn disrupts and impairs the service to the patient and the public.' Plaintiff indicated that she intended to continue her participation in the recall movement. Her employment was thereupon terminated. Plaintiff has since amended her complaint to seek reinstatement, back wages and punitive damages.

In urging us to affirm the action of the trial court in sustaining a demurrer to plaintiff's complaint, defendant district notes that it maintains no civil service or merit system for its employees and that section 32121, subdivision (h), of the Health and Safety Code declares that employees of local hospital districts hold their positions 'at the pleasure' of the hospital board. Since no provision of constitutional or statutory law purports to give plaintiff a right to secure or retain employment by the board, defendant urges that its right to terminate her employment knows no legal limit.

Despite the antiquity of this argument, its reasoning today stands utterly discredited. Although an individual can claim no constitutional right to obtain public employment or to receive any other publicly-conferred benefit, the government cannot condition admission to such employment or receipt of such benefits upon any terms that it may choose to impose. As Professor Thomas Reed Powell long ago observed, 'Logically a thing which may be absolutely excluded is not the same as a thing which may be subjected to burdens of a different kind, even though such burdens would be regarded by all as less onerous than the burden of absolute exclusion. The 'power of absolute exclusion' is a term not identical with the 'power of relative exclusion' or the 'power to impose any burdens whatsoever. " (Powell, The Right to Work for the State (1961) 16 Colum.L.Rev. 99, 111.) 1 Today courts and commentators alike recognize without question that the power of government, federal or state, to withhold benefits from its citizens does not encompass a supposed 'lesser' power to grant such benefits upon an arbitrary deprivation of constitutional right. 2

The faulty logic inherent in defendant's proferred syllogism was rejected by this court in Danskin v. San Diego Unified Sch. Dist. (1946) 28 Cal.2d 536, 171 P.2d 885. That case involved a school district which had undertaken to confine the use of its buildings to organizations whose members gave a satisfactory account of their views. In the course of that opinion we declared: 'The state is under no duty to make school buildings available for public meetings (citations). If it elects to do so, however, it cannot arbitrarily prevent any members of the public from holding such meetings. (Citations.) Nor can it make the privilege of holding them dependent on conditions that would deprive any members of the public of their constitutional rights. A state is without power to impose an unconstitutional requirement as a condition for granting a privilege even though the privilege is the use of state property (citations) * * *. It is true that the state need not open the doors of a school building as a forum and may at any time choose to close them. Once it opens the doors, however, it cannot demand tickets of admission in the form of convictions and affiliations that it deems acceptable.' (Danskin v. San Diego Unified Sch. Dist., supra, 28 Cal.2d at pp. 545--547, 171 P.2d at pp. 891--892.)

Similarly, in Syrek v. California Unemployment Insurance Appeals Board (1960) 54 Cal.2d 519, 532, 7 Cal.Rptr. 97, 354 P.2d 625, 632, this court stated that, '(A)lthough the state need not legally have provided unemployment benefits for anyone, once it has done so it cannot withhold them from one who has good cause for declining a proffered employment.'

On the other hand, we cannot accept the apparent suggestion of some few cases that government may Never condition the receipt of benefits or privileges upon the non-assertion of constitutional rights. (See, e.g., Frost & Frost Trucking Co. v. Railroad Com. (1926) 271 U.S. 583, 593--594, 46 S.Ct. 605, 70 L.Ed. 1101; Terral v. Burke Constr. Co. (1922) 257 U.S. 529, 532--533, 42 S.Ct. 188, 66 L.Ed. 352.) The government employee should no more enjoy the right to wrap himself in the flag of constitutional protection against every condition of employment imposed by the government than the government should enjoy an absolute right to strip him of every constitutional protection. Just as we have rejected the fallacious argument that the power...

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