Chavez-Salido v. Cabell

• Decision Date: 14 March 1977
• Docket Number: No. CV 76-0541-IH.,CV 76-0541-IH.
• Citation: 427 F. Supp. 158
• Parties: Jose CHAVEZ-SALIDO et al., Plaintiffs, v. Clarence E. CABELL, in his official capacity as Acting Chief Probation Officer of Los Angeles County, et al., Defendants.
• Court: U.S. District Court — Central District of California

427 F. Supp. 158

Jose CHAVEZ-SALIDO et al., Plaintiffs, v. Clarence E. CABELL, in his official capacity as Acting Chief Probation Officer of Los Angeles County, et al., Defendants.

No. CV 76-0541-IH.

United States District Court, C. D. California.

February 3, 1977.

Addendum to Opinion March 14, 1977.

Richard A. Paez, Michele Washington, Western Center on Law and Poverty, Inc., Los Angeles, Cal., for plaintiffs.

Philip H. Hickok, Deputy County Counsel, Los Angeles, Cal., for defendants.

Before BARNES, Senior Circuit Judge, CURTIS, Senior District Judge, and IRVING HILL, District Judge.

OPINION

HILL, District Judge:

In this opinion, in a case of first impression, we declare unconstitutional California Government Code § 1031(a). That section provides that one must be a citizen of the United States to hold any governmental position, state, county or local, which is declared by law to be a peace officer or which has the powers of a peace officer. The case is brought by three plaintiffs who applied for, and were denied, appointment to the position of Los Angeles County deputy probation officer solely because of the statutory requirement of American citizenship. Under California Penal Code § 830.5 a deputy probation officer is declared to be a peace officer and is therefore subject to the citizenship requirement of Government Code § 1031(a). We hold § 1031(a) to be both unconstitutional on its face and unconstitutional as applied. We also hold that a county may be held liable for damages in an action brought directly under the 14th Amendment and in an action brought under 42 U.S.C. § 1981.

I FACTS

Plaintiffs, Chavez-Salido, Ybarra and Bohorquez, as of the date the complaint was filed, were lawfully admitted permanent resident aliens living in Los Angeles County. In a single-count first amended complaint seeking both injunctive relief and damages, they sue Los Angeles County, its Chief Personnel Officer, its Acting Chief Probation Officer and the Personnel Officer of the County's Probation Department.¹ The case was tried without live witnesses. Most of the facts were stipulated to and some additional facts were received by uncontradicted affidavits.

Each of the plaintiffs has applied for appointment to the County Probation Department as a Deputy Probation Officer II. This position carries a salary of $1,185 per month. There are some factual differences in the status of the three plaintiffs and in the treatment accorded their applications.

Chavez-Salido has resided here as a lawfully admitted permanent resident alien since 1955. His application to become a Deputy Probation Officer II was filed on March 27, 1975. An oral examination is given for this position, with 70 being the minimum passing grade. Chavez-Salido took the examination May 1, 1975, scored 95, and was notified that he was being placed on the eligibility list. In September, 1975, he was notified that a job opening existed. But shortly thereafter he was told he would have to show proof of citizenship to receive an appointment. Being unable to do so, he was denied employment. The denial is stipulated to have been solely the result of the citizenship requirement of Government Code § 1031(a).

The County also has a position called Deputy Probation Officer Trainee, paying substantially less than Deputy Probation Officer II. The Trainee position does not require citizenship since it is not given by law the status or powers of peace officer. Chavez-Salido was offered the Trainee position on December 1, 1975 and accepted it. He had applied for American citizenship well before applying to become a probation officer. His citizenship petition was granted and he was made a citizen on March 15, 1976. However, by that time, his name had been taken off the eligibility list for Deputy Probation Officer II. In August, 1976, he was promoted to the position of Deputy Probation Officer I. The Officer I position pays more than the Trainee position but less than the Officer II position and citizenship is required for it.

Plaintiff Ybarra has been a lawfully admitted permanent resident alien since 1972. On August 22, 1975 he applied for the position of Deputy Probation Officer II. He scored 70 on the examination. On the same date Ybarra also applied for the Trainee position. On October 8, 1975 he applied for the position of Deputy Probation Officer I. He passed the Officer I examination with a score of 80. He was told that he was qualified for both probation officer positions, that there was a job open in the I category, but no job was open in the II category although he would be placed on an eligibility list for the latter. He was also told that for both probation officer positions he was required to present proof of citizenship. Being unable to do so, he was denied the Officer I appointment and a position on the eligibility list for Officer II. It is again stipulated that these denials were solely the result of the statutory citizenship requirement. Ybarra was employed by the Los Angeles City Housing Authority during the entire application and examination period and apparently is still so employed. Ybarra has not to this date applied for American citizenship.

Plaintiff Bohorquez has been a lawfully admitted permanent resident alien since 1961. At the time the case was argued, he had never applied for American citizenship and, so far as we know, has still not done so. His application for the position of Deputy Probation Officer II was filed January, 1975. He was given the oral examination on May 5, 1975 but during the examination was told that he could not receive an appointment to the position sought because of his lack of citizenship. He was subsequently notified that he had failed to achieve a passing score of 70 on the examination. There is a procedure whereby an applicant can appeal his examination results. Bohorquez was notified that because he failed to meet the citizenship qualifications it would be useless to appeal. He therefore did not appeal and has refrained from filing further applications, though he is still desirous of appointment. Bohorquez was unemployed at the time of his application and examination and has remained unemployed since. It appears that he never sought appointment as a Probation Officer Trainee. Whereas Chavez-Salido and Ybarra seek damages by way of back pay as part of their relief, Bohorquez seeks only the opportunity to take a new examination.

Each plaintiff was at all times willing to take the loyalty oath prescribed in the California Constitution for all public employees. Cal.Const. art. XX, § 3. That oath includes an agreement to support and defend the Federal and State Constitutions.

The first amended complaint, upon which the case was tried,² challenges § 1031(a) and the citizenship requirement therein contained, under the equal protection clause of the 14th Amendment and under two provisions of the Civil Rights Acts, 42 U.S.C. §§ 1981 and 1983. These challenges articulate a claim of unlawful discrimination on the basis of alienage. In addition, the complaint asserts that § 1031(a) unconstitutionally infringes upon plaintiffs' right to travel and upon Congress' power to regulate aliens. The latter claim invokes the supremacy clause of the Federal Constitution. Each plaintiff seeks a declaratory judgment invalidating the statute and injunctive relief prohibiting its application to him. All three plaintiffs seek attorneys fees. As stated, two plaintiffs seek money damages.

Plaintiffs requested the convening of a three-judge court under 28 U.S.C. §§ 2281 and 2284.³ Defendants agreed that a three-judge court should be convened and the Chief Judge of the Circuit appointed the members of the three-judge court on April 26, 1976.⁴ The case was tried and argued August 20, 1976.

II JURISDICTION

The individual defendants do not contest the jurisdiction of this court to entertain the instant action against them. They apparently concur in plaintiffs' assertion that a claim is stated against them which is cognizable under 42 U.S.C. § 1983, with jurisdiction accruing to this Court under 28 U.S.C. § 1343(3). Section 1983 imposes liability on any person who, under color of state law, deprives another of "any rights, privileges, or immunities secured by the Constitution . . .." Section 1343(3) grants to the district courts original jurisdiction to redress any deprivation of constitutional rights of the type described in § 1983.

But Defendant Los Angeles County does contest our jurisdiction. Plaintiffs argue that their complaint states a claim against the County both for violation of their equal protection rights under the 14th Amendment and for violation of 42 U.S.C. § 1981. Section 1981 in relevant part reads:

"All persons within the jurisdiction of the United States shall have the same right in every State . . . to make and enforce contracts, to sue, . . . and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens . . .."

Plaintiffs argue that if a claim is stated under either or both of these bases, our jurisdiction over the County derives from 28 U.S.C. § 1331(a), the general grant to the district courts of federal question jurisdiction. Section 1331(a) confers jurisdiction in all civil actions which arise "under the Constitution, laws, or treaties of the United States" and "wherein the matter in controversy exceeds the sum of value of $10,000 . . .."

Defendant County strongly urges that it, as a political subdivision, is not suable under § 1981. The County unfortunately took no position, either in its brief or in argument, as to plaintiffs' asserted alternative basis of liability, i. e. direct violation of the 14th Amendment. We have examined both bases as well as the question of the existence in the case of the $10,000 amount in controversy requirement under § 1331(a).

We hold that the complaint states a cognizable claim against the County on...