Chavez-Salido v. Cabell

• Decision Date: 04 June 1980
• Docket Number: No. CV 76-541-IH.,CV 76-541-IH.
• Citation: 490 F. Supp. 984
• Parties: Jose CHAVEZ-SALIDO, Ricardo Bohorquez, and Pedro Luis Ybarra, Plaintiffs, v. Clarence E. CABELL, in his official capacity as Acting Chief Probation Officer of Los Angeles County; Jacqualine Hasentab, in her official capacity as Personnel Officer for the Los Angeles Probation Department; Gordon T. Nesvig, in his official capacity as Chief Personnel Officer for the County of Los Angeles; and the County of Los Angeles, a body politic, Defendants.
• Court: U.S. District Court — Central District of California

490 F. Supp. 984

Jose CHAVEZ-SALIDO, Ricardo Bohorquez, and Pedro Luis Ybarra, Plaintiffs, v. Clarence E. CABELL, in his official capacity as Acting Chief Probation Officer of Los Angeles County; Jacqualine Hasentab, in her official capacity as Personnel Officer for the Los Angeles Probation Department; Gordon T. Nesvig, in his official capacity as Chief Personnel Officer for the County of Los Angeles; and the County of Los Angeles, a body politic, Defendants.

No. CV 76-541-IH.

United States District Court, C. D. California.

June 4, 1980.

Richard A. Paez, Legal Aid Foundation of Los Angeles, Los Angeles, Cal., Michele D. Washington, Western Center on Law and Poverty, Inc., Los Angeles, Cal., for plaintiffs.

John H. Larson, County Counsel, Eric R. Young, Deputy County Counsel, Los Angeles, Cal., for defendants.

Before PREGERSON,^* Circuit Judge, CURTIS, Senior District Judge, and IRVING HILL, District Judge.

OPINION

IRVING HILL, District Judge:

In an opinion filed February 3, 1977, and published at 427 F.Supp. 158 (C.D.Cal.1977), this Court declared unconstitutional California Government Code Section 1031(a). That section provides that one must be a citizen of the United States to be a peace officer or to occupy any governmental position, state, county, or local, which is declared by law to have the powers of a peace officer. Plaintiffs in the case are three non-citizens, each of whom sought employment by Defendant Los Angeles County as a Deputy Probation Officer II and was refused employment solely because of the citizenship requirement of the statute.

This Court's decision was appealed to the United States Supreme Court. In an order dated May 15, 1978, the judgment of this Court was vacated and the case was remanded to this Court "for further consideration in light of Foley v. Connelie, 435 U.S. 291, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978)." 436 U.S. 901, 98 S.Ct. 2228, 56 L.Ed.2d 398 (1978). The matter was rebriefed and was reargued on December 8, 1979.

The facts are fully set forth in the original opinion of this Court and do not need repetition here. We likewise will not repeat herein the jurisdictional discussion of the original opinion, which we readopt.¹ In the footnote² we discuss the few inconsequential factual changes occurring since the original opinion was filed.

We recognize that the views of the Supreme Court with respect to the general problem of citizenship being required for employment by state and local government agencies, have been much more fully developed and expounded in two recent cases: Foley v. Connelie, supra and Ambach v. Norwick, 441 U.S. 68, 99 S.Ct. 1589, 60 L.Ed.2d 49 (1979).³

Applying the newly developed principles enunciated in Foley and Ambach, we have reached the same result as we reached before. We again hold that Section 1031(a) is unconstitutional. We reach this same result on the same grounds as before: 1) the statute is overbroad and 2) the statute as applied denies these plaintiffs the equal protection of the law.

I OVERBREADTH

In our original opinion, we discussed the status of alienage under the equal protection clause as enunciated by the Supreme Court. We believe that discussion remains valid today. Nothing in the intervening opinions of the Supreme Court would in our view undermine the proposition that citizenship may be required for governmental employment only by a statute which is "narrowly drawn" and which does not sweep "too broadly."

Footnote 5 of the Foley opinion, 435 U.S. at 296, 98 S.Ct. at 1071, reaffirms the continued validity of the overbreadth criterion in the following language:

This is not to say, of course, that a State may accomplish this end with a citizenship restriction that `sweeps indiscriminately', citing Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 without regard for the differences in the positions involved.

In Foley, the statute requiring citizenship was narrowly drawn. It applied only to members of the New York State Police force, "State Troopers." In Norwick the statute was likewise narrowly drawn. It applied only to persons who are employed "to teach in the public schools" of the state. It is noteworthy that the New York statute involved in Norwick did not confine employment as teachers to those who had their citizenship, but permitted the employment of non-citizens who had "made application" to become citizens. The California statute with which we deal permits the employment only of persons who are already citizens and, as we pointed out in our original opinion, covers a whole host of other occupations to which the requirement of citizenship cannot be reasonably related.

We read the new decisions of the Supreme Court as continuing to emphasize that the legislature must make a reasoned judgment as to each occupation in the field of public employment for which it requires citizenship as a prerequisite. The Court's opinions seem to require that the legislature should examine the functions, duties and responsibilities of various public jobs, position by position, and determine for each that the job is so necessarily involved with the essential power of government that it should be confined to citizens.

If these are the requirements, the legislative action of the California legislature with which we are concerned does not meet them. The California legislature has for over one hundred twenty-five years dealt with the subject of who is a peace officer and who, additionally, is deemed to have the powers of a peace officer. The first enactments in this field appear to go back to 1851.⁴ In dozens of subsequent enactments, the legislature had added one or more public positions to the list. Until 1961, all the repeated additions to the list of peace officers were enacted without any requirement that people holding these positions should be citizens.⁵ Then in 1961, in one fell swoop, the legislature passed Government Code Section 1031 which applied the mandatory citizenship requirement to all of the positions on the list. We are cited no legislative history or legislative findings which supply any basis or rationale for this broad new citizenship requirement.

In Footnote 22 of our prior opinion, we set forth the extensive list of positions covered by the California citizenship requirement of Section 1031(a). It is to be remembered that state, county, and local employees are all included if they are within any of the occupational categories on the list. We believe that Section 1031(a) is void as a law requiring citizenship which "sweeps too broadly" under the Court's original holding in Sugarman and the recent Footnote 5 in Foley. There appears to be no justification whatever for excluding aliens, even those who have applied for citizenship, from holding public employment as cemetery sextons, furniture and bedding inspectors, livestock identification inspectors, and toll service employees.⁶ Yet all these are within the proscription of Section 1031(a) along with probation officers.

As will be discussed more fully in part II, infra, certain positions within the "political community" are subject to a less stringent equal protection scrutiny than those positions not within the "political community." For the purposes of this overbreadth analysis, it suffices to say that cemetery sextons, toll collectors, and persons in many other occupations within Section 1031(a) cannot be considered members of the political community no matter how liberally that category is viewed.

Thus, nothing has changed which would alter our original conclusion: Section 1031(a) is grossly overbroad and sweeps much too broadly in its proscription of alien employment.

II THE STATUTE AS APPLIED

In their rebriefing and reargument, defendants again urge us to restrict our examination only to the validity of the statute as applied to deputy probation officers.⁷ Defendants have pointed to nothing in the recent opinions of the Supreme Court which would justify such a limited examination. We therefore again observe that the decisions of the Supreme Court appear to rule out consideration of such a statute as applied. We again determine that the scrutiny to be afforded a statute of this kind must include an examination of whether it is too broad in its scope. This is the approach which the Supreme Court itself undertook in Sugarman, and, as indicated by the footnote in Foley, remains the proper approach to this day. But, out of an abundance of caution, we have again proceeded to examine Section 1031(a) as applied. We again hold the statute to be unconstitutional as applied to deputy probation officers as their functions and powers are defined in California law.

This examination of the statute as applied requires us to determine whether deputy probation officers fall within the group of public service positions which the states and local governments may reserve for American citizens. That group of positions was originally described in Sugarman as involving "members of the political community." The characteristics of positions which fall within the group have been more fully expounded in Norwick and Foley.

In Norwick, which held that school teachers are within the political community, the Court rests the decision upon the important policy and governmental functions which public school teachers perform. The Court specifically relied on the importance of public education in our society, 441 U.S. at 76-78, 99 S.Ct. at 1594-1595, and noted that the function of a schoolteacher is of paramount importance because it includes promoting civic virtues, serving as a role model, and influencing the students' attitudes towards government and the political process, id. at 78-80, 99 S.Ct. at 1595-1596.

We find no difficulty in holding that the function of deputy probation officers is substantially distinguishable. Probation officers do not deal with the bulk of the community. They perform no school teaching functions with respect either to children or...