Connell v. Higginbotham

• Decision Date: 30 October 1969
• Docket Number: Civ. No. 69-34.
• Citation: 305 F. Supp. 445
• Parties: Stella CONNELL, individually, and on behalf of all persons similarly situated, Plaintiff, v. James M. HIGGINBOTHAM, Superintendent of the Orange County Board of Public Instruction; Louise Breeze, Chairman of the Orange County Board of Public Instruction; and Lowell Clements, Raymond H. Bassett, William D. LaRue, Harley Thompkins, Mrs. Lee K. Davies and Stewart M. Schaffer, Defendants. Floyd T. Christian, Commissioner of Education, State of Florida, Intervenor.
• Court: U.S. District Court — Middle District of Florida

305 F. Supp. 445

Stella CONNELL, individually, and on behalf of all persons similarly situated, Plaintiff, v. James M. HIGGINBOTHAM, Superintendent of the Orange County Board of Public Instruction; Louise Breeze, Chairman of the Orange County Board of Public Instruction; and Lowell Clements, Raymond H. Bassett, William D. LaRue, Harley Thompkins, Mrs. Lee K. Davies and Stewart M. Schaffer, Defendants Floyd T. Christian, Commissioner of Education, State of Florida, Intervenor.

Civ. No. 69-34.

United States District Court M. D. Florida, Orlando Division.

October 30, 1969.

COPYRIGHT MATERIAL OMITTED

Jerome J. Bornstein, Orlando, Fla., Tobias Simon, Miami, Fla., for plaintiff.

John Motsinger, Jr., George W. Johnson, III, Orlando, Fla., for defendants.

Earl Faircloth, Atty. Gen., Rivers Buford, Jr., Asst. Atty. Gen., Tallahassee, Fla., for intervenor.

Before SIMPSON, Circuit Judge, and YOUNG and SCOTT, District Judges.

SCOTT, District Judge.

The plaintiff in this case, a teacher in the Orange County, Florida, school system, seeks on behalf of herself and others similarly situated to have Section 876.05 of the Florida Statutes, F.S.A. declared unconstitutional. In addition, plaintiff requests that a permanent injunction be granted restraining the defendants, their agents, officers and employees from executing or enforcing the provisions of this alleged unconstitutional section. Plaintiff alleges violation of her rights, privileges and immunities as a citizen of the United States, as secured by the First, Fifth and Fourteenth Amendments to the United States Constitution.

Jurisdiction exists under 28 U.S.C. § 1343(3), 28 U.S.C. § 2201 and 42 U.S.C. § 1983.

Plaintiff alleges that (1) the loyalty oath contained in Section 876.05 of the Florida Statutes, F.S.A., which all state employees are required to execute as a condition of employment, is so vague and ambiguous that it cannot be interpreted with any reasonable degree of certainty and, since a purported violation of this section can subject one to criminal prosecution under Section 876.10 of the Florida Statutes, F.S.A., plaintiff is denied due process of law as guaranteed by the Fifth and Fourteenth Amendments, and (2) the oath abridges plaintiff's rights to freedom of speech, assembly and association as guaranteed under the First and Fourteenth Amendments.

This case was heard by a three-judge panel pursuant to 28 U.S.C. §§ 2281, 2284.

FACTS

On or about January 16, 1969, plaintiff made application for a teaching position with the defendant Orange County school system. After interviewing the plaintiff, the principal of Callahan Elementary School, Orlando, Orange County, Florida, recommended that the plaintiff be considered for employment as a substitute teacher for the fourth grade at that school. Plaintiff was told that she could begin her teaching duties on January 27, 1969, pending routine recommendation by the superintendent and approval by the Board of Public Instruction of Orange County.

At no time prior to her employment was the plaintiff informed by the defendants of the necessity that she sign a loyalty oath; it appears, however, that the plaintiff had some knowledge of Section 876.05 of the Florida Statutes, F.S.A. at the time she commenced employment. On February 7, 1969, plaintiff was asked to execute the oath prescribed by the statute. Plaintiff declined, informing the defendants that the particular oath had been declared unconstitutional in Cramp v. Board of Public Instruction of Orange County, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961). Defendants later asked plaintiff to sign a version of the oath as judicially amended by Cramp v. Board of Public Instruction, 137 So.2d 828 (Fla.1962). Plaintiff also refused to sign this oath. At this point processing of plaintiff's employment papers was halted, prior to their consideration by the Board of Public Instruction of Orange County.

Defendants then informed the plaintiff that they were barred by Section 876.08 of the Florida Statutes, F.S.A. from paying the plaintiff for any past or future services rendered by plaintiff until the oath was executed. Plaintiff related to defendants that she anticipated filing suit in the United States District Court and defendants informed plaintiff that she could remain in her teaching post without pay, pending decision on the matter.

On February 26, 1969, the plaintiff filed her complaint against the defendants seeking a hearing and determination of the federal constitutional issues before a three-judge court, a permanent injunction and an interlocutory injunction pending final determination restraining the defendants from discharging the plaintiff as a teacher in the Orange County school system or refusing to pay her salary as a teacher. After the Court denied plaintiff's motion for a temporary restraining order plaintiff was dismissed on March 18th by defendants from her substitute teaching position. Plaintiff worked a total of seven weeks and has received no compensation from defendants for her services.

Subsequent to the denial of the plaintiff's request for a temporary restraining order, Floyd Christian, as Commissioner of Education for the State of Florida, requested and was granted leave to intervene in this action as a party defendant.

STANDING

Defendants contest the standing of the plaintiff to bring this action. They base this claim on the fact that plaintiff's application for employment was never considered by the Board of Public Instruction. Defendants contend that the plaintiff was merely a prospective employee being allowed to teach on a temporary basis pending final approval by the Board of Public Instruction. Defendants claim that plaintiff's application might have been rejected by the Board for a number of reasons based on plaintiff's qualifications as a teacher. The defendants conclude that, since plaintiff was never finally employed by the Board, she cannot now properly petition this Court for an injunction to prevent her dismissal and other appropriate relief.

Defendants' argument must fail. It is apparent from the outset that defendants' administrative agents contemplated no reason why plaintiff would not be approved by the Board of Public Instruction. Defendants admit that final approval by the Board is in reality a routine matter after a recommendation by the superintendent and that permanent teachers are normally allowed to begin their teaching activities prior to approval by the Board. Neither have defendants come forward with convincing evidence of other valid grounds upon which plaintiff's dismissal might have been predicated.

The Orange County school system is an arm of state government and its agents, officers and employees are applying state law. Plaintiff is alleging that action by these state employees applying a state statute violates her constitutional rights. Plaintiff also claims that the application of this alleged unconstitutional statute will result in injury to her, i. e., denial of state employment and withholding of her salary for services rendered to the school system.

We shall not engage in a semantical argument concerning whether state employment is a "right" or a "privilege", but suffice it to say that the essence of due process is contained in the principle that, once the state has made available the benefit of state employment, it cannot predicate that employment on grounds which the state has no right to dictate. "The fact * * * that a person is not compelled to hold public office cannot possibly be an excuse for barring him from office by state-imposed criteria forbidden by the Constitution". Torcaso v. Watkins, 367 U.S. 488, at 495-496, 81 S.Ct. 1680, at 1684, 6 L.Ed.2d 982 (1960). "We need not pause to consider whether an abstract right to public employment exists. It is sufficient to say that constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory". Wieman v. Updegraff, 344 U.S. 183, at 192, 73 S.Ct. 215, at 219, 97 L.Ed. 216 (1952). If the statute in question is unconstitutional, then plaintiff is injured by the defendants' refusal to employ her based on her failure to execute the oath, and this injury exists quite apart from the question of whether she was a "permanent" or a "temporary" teacher. Plaintiff, therefore, has the requisite standing to bring this action. See Cramp v. Board of Public Instruction, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961); Gilmore v. James, 274 F.Supp. 75 (N.D. Texas 1967), affirmed 389 U.S. 572, 88 S.Ct. 695, 19 L.Ed.2d 783, rehearing denied 390 U.S. 975, 88 S.Ct. 1027, 19 L.Ed.2d 1195; Heckler v. Shepard, 243 F.Supp. 841 (E.D.Idaho 1965).

CLASS ACTION

Plaintiff requests that she be allowed to maintain this action on behalf of all state employees who are required to execute a loyalty oath as a condition of their employment with the state. Defendants argue that plaintiff is not a proper representative of a class of state employees since her application had not been ruled upon by the Board of Public Instruction and, therefore, plaintiff was not a fullfledged state employee.

In order for a class action to be maintained under Rule 23 of the Federal Rules of Civil Procedure, there must be an ascertainable class and a proper representative. Hamer v. Campbell, 358 F.2d 215 (5th Cir. 1966). Plaintiff in this case has gone through the application process for securing employment with a state-operated school system. As a condition to her employment with the school system, she was required to execute an oath in accordance with Section 876.05 of the Florida Statutes, F.S.A. If the section is enforced, any person seeking employment with a state agency would be required to execute such an oath as a condition of employment. Therefore, plaintiff's situation is one which is common to an ascertainable class of persons. That class is all persons seeking employment with any state agency. Se...