Butts v. Nichols

Citation381 F. Supp. 573
Decision Date04 September 1974
Docket NumberCiv. No. 72-77-2.
PartiesLouis C. BUTTS et al., Plaintiffs, v. Wendell NICHOLS, as Chief of Police, and Richard A. Wilkey, City Manager, both of the City of Des Moines, Iowa, Defendants.
CourtU.S. District Court — Southern District of Iowa

Robert C. Oberbilling, Des Moines, Iowa, for plaintiffs.

Philip T. Riley and William D. Groteluschen, Des Moines, Iowa, for defendants.

Before STEPHENSON, Circuit Judge, HANSON, Chief District Judge, and STUART, District Judge.

HANSON, Chief District Judge.

This class action challenges Section 365.17(5) of the Code of Iowa (1971), as amended July 1, 1973, which prohibits the employment of convicted felons in civil service positions in Iowa. The plaintiffs seek a declaratory judgment that Section 365.17(5) as applied in Iowa is in violation of Title VII of the Civil Rights Act of 1964 (Title 42, U.S. C., Section 2000e et seq.) and 28 C.F.R., Part 42, and is in violation of the plaintiffs' rights to Equal Protection and Due Process under the Fourteenth Amendment to the United States Constitution. The plaintiffs seek injunctive relief restraining the application of this statute to themselves and to other members of their class.

Jurisdiction of this Court is invoked pursuant to Title 42, U.S.C., Section 1983; Title 28, U.S.C., Section 1343(3); Title 42, U.S.C., Section 2000e et seq.; Title 28, U.S.C., Sections 2201 and 2202. Because plaintiffs seek to enjoin the enforcement of a state statute, a three-judge court has been convened pursuant to Title 28, U.S.C., Section 2281.

A hearing was held in this matter on November 1, 1973 before three judges.

The following constitutes the Findings of Fact, Conclusions of Law and Order for Judgment.

FINDINGS OF FACT

Louis C. Butts is a black male convicted of a felony in 1966 in Polk County, Iowa. Plaintiff Butts worked for the City of Des Moines Police Department in the Community Service Aide Program, a federally-funded program to assist in developing police-community relations in low income areas of Des Moines. In December 1972 this program was terminated and Mr. Butts was offered and accepted employment as a sewage treatment plant helper for the City of Des Moines. Although this particular position appears to be exempt from the proscription against hiring convicted felons,1 Mr. Butts would be prevented from advancing to other civil service positions which cannot be filled by a convicted felon.2

William L. Harvey is a black male convicted of a felony in 1961 in Ottumwa, Iowa. Plaintiff Harvey was also employed by the Community Service Aide Program. Mr. Harvey's employment with the City of Des Moines was terminated with the end of the Community Service Aide Program and Mr. Harvey is no longer employed by the City of Des Moines. Mr. Harvey is, however, restricted from seeking and holding certain types of civil service employment because of his felony conviction.

John Doe is a Caucasian male who is presently an employee of the City of Des Moines, Iowa. His position has been classified by the Civil Service Commission of the City of Des Moines as a civil service position and is subject to the provisions of Section 365.17. In 1948 plaintiff Doe was convicted of a felony which would cause his discharge pursuant to Section 365.17(5) and a resolution adopted on March 21, 1972 by the Des Moines City Council directing all employees with prior felony convictions be terminated as required by Section 365.17(5) of the Code.

Defendants Wendell Nichols, Chief of Police of the City of Des Moines, Iowa, and Richard A. Wilkey, City Manager of the City of Des Moines, Iowa, are empowered by Section 365.19 of the Code to enforce the statutory provisions challenged by these plaintiffs.

Following the adoption of the Des Moines City Council resolution, this cause of action was filed and a temporary restraining order was issued. On April 11, 1972 a temporary injunction issued from this Court enjoining the City of Des Moines from terminating these plaintiffs because of prior felony convictions.

One of the arguments advanced by the plaintiffs in support of their Title VII and Equal Protection claims is that Section 365.17(5) has a disproportionate racial impact in the City of Des Moines. The plaintiffs introduced statistics relating to the percentage of Des Moines City employees who are blacks,3 the percentage of black population in the City of Des Moines,4 and the percentage of those incarcerated in the Iowa State Penitentiary who are blacks.5

CONCLUSIONS OF LAW

Three basic issues are presented to the Court by these plaintiffs:

A. Whether Section 365.17(5), Code of Iowa (1971), as amended (1973), which prohibits convicted felons from holding civil service positions, is illegal pursuant to Title VII of the Civil Rights Act of 1964 (Title 42, U.S.C., Section 2000e et seq.) and 28 C.F.R., Part 42.

B. Whether Section 365.17(5) of the Code, standing alone, or when read in conjunction with Section 365.6 of the Code, violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.

C. Whether Section 365.17(5) of the Code creates an irrebuttable presumption in violation of the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States.

TITLE VII CLAIM

The black plaintiffs contend that Section 365.17(5) is in conflict with Title VII of the Civil Rights Act of 1964, in that the statute as applied discriminates against Butts, Harvey, and others similarly situated, on the basis of race and color. Title VII generally prohibits employment discrimination on the basis of race, color, religion, sex or national origin. In support of the allegations of racial discrimination, the plaintiffs cite to the Court statistics relating to the percentage of Des Moines city employees who are blacks, the percentage of black population in Des Moines and in Iowa, and the percentage of inmates of Iowa's penal institutions who are blacks.6

Even if these statistics were conclusive in showing de facto discrimination in employment of blacks by the City of Des Moines, this Court could not reach the merits of the Title VII claim.

Title 42, U.S.C., Section 2000e-5 contains certain jurisdictional prerequisites which require the aggrieved party to file charges with the EEOC prior to initiating suit in this Court. In Local 179, United Textile Wkrs. v. Federal Paper Stock Co., 461 F.2d 849, 850, 851 (8th Cir. 1972), the Eighth Circuit ruled:

It is now settled, however, that a complaining party must satisfy two jurisdictional prerequisites in order to bring suit under Title VII: (a) a charge must be filed with the EEOC, and (b) statutory notice from the EEOC of the right to sue must be received.
Robinson v. Lorillard Corp., 444 F.2d 791 (CA 4 1971); Beverly v. Lone Star Lead Construction Corp., 437 F.2d 1136 (CA 5 1971); Flowers v. Local No. 6, Laborers Int'l Union of North America, 431 F.2d 205 (CA 7 1970); Fekete v. United States Steel Corp., 424 F.2d 331 (CA 3 1970) and Local 186 Int'l Pulp, Sulphite and Paper Mill Workers v. Minnesota Mining and Mfg. Co., 304 F.Supp. 1284 (N.D. Ind.1969). In other words, it is clear that a person seeking redress for employment discrimination may not bypass the EEOC and proceed directly to the federal courts. Miller v. Int'l Paper Co., 408 F.2d 283 (CA 5 1969).

In this case the plaintiffs have not pursued their remedies through the EEOC prior to commencing this suit. Accordingly, this Court cannot entertain the Title VII claims at this time.

EQUAL PROTECTION CLAIM

The next issue before the Court is the plaintiffs' contention that Section 365.17(5) and 365.6 of the Code of Iowa are unconstitutional as violative of their rights to Equal Protection under the Fourteenth Amendment to the Constitution of the United States. Under the statutory scheme at issue here, convicted felons are denied the opportunity to hold civil service positions by Section 365.17(5). Section 365.6, however, exempts certain city employees positions from the requirements of 365.17. Thus, those convicted felons who cannot obtain a job which falls within one of the exemptions of Section 365.6, or who do not wish to hold one of those particular jobs, are in effect barred from city employment. The question before this Court is whether this discrimination against class is permissible under the Equal Protection Clause of the Fourteenth Amendment.

In applying equal protection analysis, the United States Supreme Court has held that where a class is discriminated against on the basis of certain suspect criteria, the State must show a compelling state interest in the statute to uphold it against the proscriptions of the Equal Protection Clause. McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964) (Discrimination on the basis of race); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (Discrimination on the basis of race); Takahashi v. Fish & Game Commission, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948) (Discrimination on the basis of alienage); Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971) (Discrimination on the basis of alienage); Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968) (Discrimination on the basis of illegitimacy).

The state must also show a compelling state interest if a statute discriminates against a certain class of persons where fundamental individual rights are involved. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (Right to travel); Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972) (Right to vote); Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969) (Right to vote).

The plaintiffs, in particular the black plaintiffs, have attempted to invoke the compelling state interest test by urging that Section 365.17(5) has a disproportionate racial impact and thus discriminates on the basis of race, a...

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