Com. ex rel. Specter v. Moak

• Decision Date: 02 July 1973
• Citation: 452 Pa. 482,307 A.2d 884
• Parties: COMMONWEALTH of Pennsylvania ex rel. District Attorney Arlen SPECTER et al., Appellants, v. Lennox L. MOAK, Finance Director of the City of Philadelphia, Appellees.
• Court: Pennsylvania Supreme Court

307 A.2d 884

452 Pa. 482

COMMONWEALTH of Pennsylvania ex rel. District Attorney Arlen

SPECTER et al., Appellants, v. Lennox L. MOAK, Finance Director of the City of

Philadelphia, Appellees.

Supreme Court of Pennsylvania.

July 2, 1973.

Arlen Specter, Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., Milton M. Stein, Asst. Dist. Atty., Chief Appeals Div., Arthur R. Makadon, Martin H. Belsky, Asst Dist. Attys., Philadelphia, for appellants.

Martin Weinberg, City Solicitor, Sheldon L. Albert, Chief Deputy City Solicitor, Philadelphia, for appellees.

Daniel I. Murphy, Anita G. Cella, Philadelphia, for amicus curiae, The Committee of Seventy.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY NIX and MANDERINO, JJ. OPINION OF THE COURT

ROBERTS Justice.

On March 7, 1973, appellants, Alessandroni, Brereton, Cohen, Stevens, Jr., Sweeney, and Sylvester--assistant district attorneys in the City of Philadelphia--became candidates for nomination for judge of the court of common pleas for the May, 1973, primary. Appellant Lundy, also an assistant district attorney, became a candidate for nomination for judge of the municipal court.

On the following day, Martin Weinberg, City Solicitor, directed the Finance Director, appellee Lennox Moak, to withhold appellants' pay. In Formal Opinion No. 343, the City Solicitor explained that assistant district attorneys are city employees and, as such, are subject to Section 10--107(5) of the Philadelphia Home Rule Charter. ^[*] That section provides:

'No officer or employee of the City, except elected officers running for re-election shall be a candidate for nomination or election to any public office unless he shall have first resigned from his then office or employment.'

Pursuant to the City Solicitor's direction, appellee withheld appellant's compensation.

Appellants filed a complaint in mandamus seeking an order declaring appellants the rightful holders of positions as assistant district attorneys and requiring appellee to compensate them. On March 27, 1973, the complaint was dismissed. This appeal followed and we now affirm. ^[1]

I.

Initially, appellants contend that they are 'quasi-judicial state officers' and, thus, not affected by Section 10--107(5) of the Home Rule Charter which applies only to officers and employees of the City of Philadelphia. While on prior occasions this Court has discussed the applicability of the Charter to the district attorney, ^[2] we have not previously been confronted with the status of assistant district attorneys. Indeed, on one occasion it was said:

'In the present case, we do not mean to or need to intimate a view as to whether employees of the District Attorney's office are subject to the civil service provisions of the Charter, since that issue is completely distinct from the question as to whether the Charter affects the duties and functions of the district attorney.'

Commonwealth ex rel. Specter v. Freed, 424 Pa. 508, 516 n. 7, 228 A.2d 382, 386 n. 7 (1967). Cf. Schultz v. Philadelphia, 385 Pa. 79, 122 A.2d 279 (1956).

Appellants maintain that since they perform functions primarily on behalf of the Commonwealth, they should be classified as state employees, rather than employees of the City of Philadelphia. See Lennox v. Clark, 372 Pa. 355, 93 A.2d 834 (1953). We are unable to agree with this contention. The function an employee performs is only one factor in determining whether that individual is a City employee within the meaning of the Charter.

Certainly, it could not be argued that the Mayor is a state officer merely because he has the duty to 'cause the ordinances of the city And the laws of the State to be executed and enforced.' Act of June 25, 1919, P.L. 581, art. II, § 6, 53 P.S. § 12127 (emphasis added). As the City Solicitor properly noted in Formal Opinion No. 343:

'Many officials perform state functions. The Sheriff of Philadelphia performs duties solely on behalf of the courts of Philadelphia County, whose judges are officers of the Courts. See Dwyer v. Dilworth, 392 Pa. 123, 139 A.2d 653 (1958). The Police Commissioner of the City of Philadelphia enforces the criminal laws of the Commonwealth of Pennsylvania. Under the Home Rule Charter Section 440(d), the City Solicitor is empowered

"With the approval of the Mayor, . . . (to) . . . investigate any violation within the City of the statutes of the Commonwealth of Pennsylvania or the ordinances of the City which may come to its notice, and shall take such steps and adopt such means as may be reasonably necessary to enforce within the City such statutes and ordinances." ^[3]

Other indicia of employment lead us to conclude that assistant district attorneys are City employees and subject to the provisions of the Charter. The City Council of Philadelphia, for example, fixes the number of assistant district attorneys, as well as their salaries. The operating budget for fiscal year 1974 reveals that the District Attorney 'Department' has been allotted, by City Council, over $2,300,000 to pay the more than 140 assistant district attorneys. Additionally, the Council has budgeted over $1,100,000 for other office personnel and more than $250,000 for materials, supplies, equipment, and purchase of services. It would be anomalous, indeed, to conclude--as appellants urge--that, although the City establishes the number of assistant district attorneys and fixes their salaries, the assistants are not employees of the City of Philadelphia.

In reaching our determination that appellants are City employees, we are also persuaded by the fact that assistant district attorneys are included in the City's pension plan. Moreover, it is noteworthy that the Philadelphia Code § 20--207 specifically exempts 'all assistant district attorneys . . . from the civil service.' Obviously, the Philadelphia Code would not include within its provisions references to those who are not City employees. In view of these circumstances, we are persuaded that assistant district attorneys are City employees within the meaning of Section 10--107(5) of the Home Rule Charter.

II.

Appellants further urge that the prohibition against political candidacy for public office--expressed in Section 10--107(5)--is an unconstitutional infringement upon their First Amendment rights.

Manifestly, appellants are correct in their assertion that freedom of political expression and activity is embodied in the First Amendment. As the United States Supreme Court said in Sweezy v. New Hampshire, 354 U.S. 234, 250, 77 S.Ct. 1203, 1212, 1 L.Ed.2d 1311 (1957):

'Equally manifest as a fundamental principle of a democratic society is political freedom of the individual. Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. This right was enshrined in the First Amendment of the Bill of Rights. Exercise of these basic freedoms in America has traditionally been through the media of political associations.'

So, too, it is now beyond cavil that public employees may not be denied constitutional rights on the theory that public employment is a privilege, not a right. "(T)he theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected." Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968) (quoting from Keyishian v. Board of Regents, 385 U.S. 589, 605--606, 87 S.Ct. 675, 685, 17 L.Ed.2d 629 (1967)). Accord, Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960); Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956); Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952); Chalk Appeal, 441 Pa. 376, 272 A.2d 457 (1971). See also Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963).

However, the United States Supreme Court has specifically recognized that the State does have certain interests, as an employer, in regulating to activity of its employees. In Pickering v. Board of Education, supra, 391 U.S. at 568, 88 S.Ct. at 1734--1735, the Court said:

'At the same time it cannot be gainsaid that the State has interests as an employer in regulating the . . . (activity) of its employees that differ significantly from those it possesses in connection with regulation . . . of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the . . . (employee), as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.'

In striking this balance, we are guided by further principles enunciated by the Supreme Court. In United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947), for example, the Court rejected a constitutional attack on portions of the Hatch Act and held that Congress may 'regulate the political conduct of Government employees 'within reasonable limits,' even though the regulation trenches to some extent upon unfettered political action.' Id. at 102, 67 S.Ct. at 571. See also Oklahoma v. United States Civil Service Commission, 330 U.S. 127, 67 S.Ct. 544, 91 L.Ed. 794 (1947).

Since the Court's decision in Mitchell, some additional tests have emerged to determine the constitutionality of restrictions of First Amendment rights. The 'reasonableness' test employed by the Court in Mitchell has been amplified by the 'compelling interest' standard. 'Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating...