Elder v. Rampton, C 121-72.

• Decision Date: 19 December 1972
• Docket Number: No. C 121-72.,C 121-72.
• Citation: 360 F. Supp. 559
• Parties: Joseph ELDER, for himself jointly and severally and for all others similarly situated, Plaintiff, v. Calvin L. RAMPTON, Governor of the State of Utah, et al., Defendants.
• Court: U.S. District Court — District of Utah

360 F. Supp. 559

Joseph ELDER, for himself jointly and severally and for all others similarly situated, Plaintiff, v. Calvin L. RAMPTON, Governor of the State of Utah, et al., Defendants.

No. C 121-72.

United States District Court, D. Utah, C. D.

December 19, 1972.

Wendell E. Bennett, Strong & Hanni, Salt Lake City, Utah, for plaintiff.

H. Wright Volker, Asst. Atty. Gen., Salt Lake City, Utah, Vernon B. Romney, Atty. Gen., and Robert B. Hanson, Deputy Atty. Gen., on the brief, for defendants.

Before LEWIS, Chief Judge, BARRETT, Circuit Judge, and ANDERSON, District Judge.

OPINION AND ORDER

PER CURIAM.

Joseph Elder was an appointed employee of the State of Utah serving as deputy state auditor. On May 10, 1972, he filed his candidacy for the partisan elective position of state auditor. Thereupon, defendant Preece offered Elder a leave of absence, which was declined, and then dismissed him in apparent compliance with Utah's so-called Little Hatch Act and the regulations promulgated thereunder which purport to limit the political activities of certain state employees. Utah Code Ann. § 67-13-13 (1968);¹ Merit System and Personnel Regulations, State of Utah, as amended May 20, 1971, Art. II § 4.²

Plaintiff Elder now seeks a judgment declaring Utah's law to be in violation of the First, Fifth, Ninth and Fourteenth Amendments; an injunction reinstating him in his former position (Elder was unsuccessful at the polls); damages equal to his unpaid salary; and the costs of this action. Relief and jurisdiction are claimed under 28 U.S.C. §§ 1331, 1343(3) and (4), 2201-02 and 42 U.S.C. §§ 1983, 1988. A three-judge court was convened in accordance with 28 U.S.C. §§ 2281, 2284.

I

The federal Hatch Act³ is the successor of measures dating from 1883 which have restricted the political activities of government employees.⁴ A broadside constitutional attack upon the act was early rejected by the United States Supreme Court. United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947); Oklahoma v. United States Civil Service Commission, 330 U. S. 127, 67 S.Ct. 544, 91 L.Ed. 794 (1947). More recently, however, the act and its state government progeny have faced a determined barrage of constitutional litigation which has more often than not resulted in invalidation.⁵ Grounds for invalidation have centered upon the overbreadth or vagueness of these enactments.⁶ Essentially unassailed is the underlying proposition that efficiency and integrity in government service legitimately may be promoted by imposing reasonable restrictions on employee political activity. E. g., United Public Workers v. Mitchell, supra at 96-98 of 330 U.S., 67 S.Ct. 556; National Association of Letter Carriers v. United States Civil Service Commission, 346 F.Supp. 578, 579 (three-judge court, D.D.C.1972). In the present case, Utah's reliance upon this proposition is not questioned. Utah's attempt to implement the proposition is attacked upon grounds of overbreadth, vagueness and arbitrariness.

II

As the United States Supreme Court has stated, "a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." Zwickler v. Koota, 389 U.S. 241, 250, 88 S.Ct. 391, 396, 19 L.Ed.2d 444 (1967), quoting NAACP v. Alabama, 377 U.S. 288, 307, 84 S.Ct. 1302, 1314, 12 L.Ed.2d 325 (1964). This principle is the gravamen of a charge of overbreadth. In the case before us, plaintiff claims the Utah law to be overbroad in that it prohibits certain non-partisan political activities, including the campaigning for and holding of non-partisan public office in violation of the First and Fourteenth Amendments.⁷

Plaintiff seeks standing to raise this issue based upon a procedural principle which allows certain "attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity." Gooding v. Wilson, 405 U.S. 518, 521, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408 (1972), quoting Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22 (1965); see Grayned v. City of Rockford, 408 U.S. U.S. 104, 114, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). This salutary procedure has been developed to cut short the chilling effect which overbroad statutes may exert upon the exercise of First and Fourteenth Amendment freedoms. Absent this procedure, those affected by such a statute might feel coerced to refrain from the exercise of constitutionally protected freedoms pending the outcome of protracted, piecemeal litigation brought by their heartier fellows, or by government prosecutors, and only finally resulting in an appropriately truncated statute upon which the public could rely. See, e. g., Dombrowski v. Pfister, supra, at 486-487 of 380 U.S., 85 S.Ct. 1116, and cases cited.

In view of this underlying rationale, the liberal procedures for litigating overbroad statutes are appropriately applied only when "no readily apparent construction suggests itself as a vehicle for rehabilitating the statute in a single prosecution" or litigation. Gooding v. Wilson, supra, at 521 of 405 U.S., 92 S.Ct. 1103, quoting Dombrowski v. Pfister, supra, at 491 of 380 U.S., 85 S.Ct. 1116. See, Zwickler v. Koota, supra, at 250 of 389 U.S., 88 S.Ct. 391; Baggett v. Bullitt, 377 U.S. 360, 378, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964) (both cases applying the test of ready rehabilitation to absention questions). When a statute may be pruned of its overbreadth by one judicial determination, and especially a civil determination, then constitutionally protected prerogatives are relatively easily vindicated without allowing special standing, and special relief, to one whose conduct is not constitutionally protected.

The instant circumstance is unlike that of the typical claim of overbreadth involving vague statutory terms which could be saved only by an extensive judicial gloss.⁸ Plaintiff proposes a case of black or white overbreadth: the term "political" as used in the Utah law either includes partisan and non-partisan or just partisan activities. If it is assumed, as plaintiff assumes, that "political" includes non-partisan activities,⁹ then a single, civil proceeding may be brought by an appropriate plaintiff in state or federal court to decide the constitutionality of such an application. If it is assumed that the breadth of the statute is unclear as to non-partisan activities, the Utah court can appropriately interpret the statute, applying if it choses, the "readily apparent construction which suggests itself as a vehicle for rehabilitating" the statute.¹⁰

We therefore conclude that the statute's coverage of non-partisan activity is an issue not properly raised in this proceeding.

III

Plaintiff sees a pervasive vagueness in the Utah law which exists separately from the question of non-partisan political activities and which renders the law constitutionally infirm.¹¹ Reliance is placed principally in National Association of Letter Carriers v. United States Civil Service Commission, supra, which struck down the Hatch Act on grounds of vagueness and overbreadth.

The Hatch Act purports to prohibit from most government employees the taking of "an active part in partisan political management or in political campaigns" (5 U.S.C. § 7324; see 5 U. S.C. § 7326) which phrase is accompanied, according to the Letter Carriers court, by 3,000 interpretations whose cumulative meaning is inscrutable. In contrast, the Utah law (note 1 supra) contains relatively precise prohibitions which are accompanied by brief, generally understandable regulations (note 2 supra) and a statutory injunction that such regulations shall be "interpreted to protect the officer or employee from political exploitation or abuse and to allow individual state officers and employees the broadest amount of personal political participation consistent with loyal service to their superiors in state government." Note 1 supra. In the process of upholding an antinoise statute against a charge of vagueness the United States Supreme Court recently stated:

Condemned to the use of words, we can never expect mathematical certainty from our language. Footnote omitted. The words of the Rockford ordinance are marked by "flexibility and reasonable breadth, rather than meticulous specificity," Esteban v. Central Missouri State College, 415 F. 2d 1077, 1088 (8th Cir. 1969) (Blackman, J.), cert. denied, 398 U.S. 965 90 S.Ct. 2169 26 L.Ed.2d 548 (1970), but we think it is clear what the ordinance as a whole prohibits.

Grayned v. City of Rockford, supra at 110 of 408 U.S., at 2300 of 92 S.Ct. Plaintiff has not suggested specific areas of confusion with regard to the statute's meaning. We conclude that it is sufficiently express to withstand the claim of vagueness.

IV

The Utah law excludes from its restrictions on political activity approximately nine per cent of the personnel directly employed by the state as well as school staff, administrators, and teachers and the employees of other subdivisions of the state. Utah Code Ann. §§ 67-13-6; 67-13-13 (1968). Plaintiff argues that those remaining employees who are covered by the restrictions comprise an arbitrary class and, as a result, are denied equal protection of the law as mandated by the Fourteenth Amendment. As in all equal protection cases, the merit of this claim depends upon "whether there is an appropriate governmental interest suitably furthered by the differential treatment." Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972).

The class of state employees restricted in their political activities is that class covered by the state merit system, a system which seeks to establish objective, efficient and non-political employment standards for civil servants. See Utah Code Ann. §§...