Fishkin v. United States Civil Service Commission, Civ. No. 49102.

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
• Writing for the Court: DUNIWAY, Circuit , and WOLLENBERG and SWEIGERT
• Citation: 309 F. Supp. 40
• Docket Number: Civ. No. 49102.
• Decision Date: 19 May 1969
• Parties: Jerome FISHKIN, an individual, and the State of California, Plaintiffs, v. UNITED STATES CIVIL SERVICE COMMISSION et al., Defendants.

309 F. Supp. 40

Jerome FISHKIN, an individual, and the State of California, Plaintiffs,
v.
UNITED STATES CIVIL SERVICE COMMISSION et al., Defendants.

Civ. No. 49102.

United States District Court, N. D. California.

May 19, 1969.

309 F. Supp. 41

Albert Bendick, Berkeley, Cal., for plaintiff Fishkin.

Thomas C. Lynch, Atty. Gen. State of Cal., Sacramento, Cal., for plaintiff State of Cal.

John A. Nejedly, Dist. Atty., George W. McClure, Chief Deputy Dist. Atty., Martinez, Cal., for County of Contra Costa.

Cecil F. Poole, U. S. Atty., David R. Urdan, Chief Asst. U. S. Atty., San Francisco, Cal., for U. S. Civil Service.

Paul N. Halvonik, Charles C. Marson, San Francisco, Cal., Coleman A. Blease, Sacramento, Cal., for amicus curiae American Civil Liberties Union of Northern California.

Before DUNIWAY, Circuit Judge, and WOLLENBERG and SWEIGERT, District Judges.

MEMORANDUM OF DECISION

SWEIGERT, District Judge.

This is an action brought under the provisions of 5 U.S.C. § 1508, and 42 U. S.C. § 1983, by plaintiffs Fishkin and the State of California to review an order of the United States Civil Service Commission (hereinafter called the Commission), dated March 3, 1968.

309 F. Supp. 42

Plaintiffs pray for declaratory relief to the effect that 5 U.S.C. §§ 1502(a) (3)¹ and 1506² (the Hatch Act) are unconstitutional, and for an injunction enjoining defendants (members of the Commission, Jornlin (Director of the Social Service Department of Contra Costa County), and McBrien (Administrator of Contra Costa County)) from dismissing Fishkin and from applying or enforcing (1) the order of the Commission, (2) a notice of dismissal served on Fishkin, and (3) the statute of 5 U.S.C. § 1502(a) (3).

The case is presently before the court on the parties' cross-motions for summary judgment.

The facts of the case are substantially as follows:

Plaintiff Fishkin had been employed as an Administrative Analyst by the Contra Costa County Social Service Department since August 16, 1965. His job was to arrange for office space, desks, telephones, for use by social workers. On June 7, 1966, while so employed, Fishkin became a candidate for Member of County Central Committee, Third Supervisorial District in the Democratic Primary election held in Contra Costa County and also served as Director, Region Five, California Federation of Young Democrats during this same period of time.

Contra Costa County receives federal grants through the State of California for the operation of its Social Service Department.

On January 19, 1967, the Commission initiated a proceeding under 5 U.S.C. § 1501, charging Fishkin with engaging in prohibited political activity.

On March 3, 1968, the Commission issued its Report and Order, finding that Fishkin had violated 5 U.S.C. § 1052(a) (3), as charged, and that the violation warranted removal. Upon receipt of

309 F. Supp. 43

this Report and Order, Contra Costa County notified Fishkin of his dismissal

Plaintiffs contend that the Hatch Act is unconstitutional on its face and as applied, for the following reasons: (1) it violates the First Amendment by reason of its overbreadth and vagueness; (2) it infringes upon the fundamental right to engage in political activity in violation of the guarantees of the Ninth and Tenth Amendments; (3) it arbitrarily deprives persons of their liberty and property in violation of the Fifth and Fourteenth Amendments by irrationally and invidiously discriminating against publicly as compared with privately employed persons, and against State and local agency employees who are paid in part by federal funds as compared with State and local agency employees who are not so paid; and (4) it deprives persons of their liberty and property in violation of the Fifth and Fourteenth Amendments because its vague and indefinite provisions furnish no sufficiently ascertainable standard of conduct. (See Complaint, par. III, p. 2.)

In United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947), and Oklahoma v. United States Civil Service Comm'n, 330 U.S. 127, 67 S.Ct. 544, 91 L.Ed. 794 (1947), the Supreme Court upheld the constitutionality of the Hatch Act against similar claims that the Act violated the First, Fifth, Ninth and Tenth Amendments.

Plaintiffs claim that Mitchell is no longer good law for the following reasons:

First, plaintiffs argue that Mitchell is based upon the premise that public employment may be conditioned upon the surrender of constitutional rights which could not be abridged by direct governmental action, a premise which, plaintiffs contend, has been since rejected by the Supreme Court in Keyishian v. Board of Regents, 385 U.S. 589, 605, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967), citing a series of decisions.³

Second, plaintiffs argue that Mitchell rests upon the assumption that the substantive due process standard of "reasonableness" is a proper standard for First Amendment adjudication, an approach which, plaintiffs contend, has been rejected in that Justice Black's dissent in Mitchell⁴ has been followed in a line of cases.⁵

Third, plaintiffs argue that the Supreme Court has fashioned new tools for adjudication in this area of constitutional law — tools which were not employed in Mitchell, namely, that where legislation encroaches upon First Amendment rights, (a) the government must prove a compelling need for the legislation, Sweezy v. New Hampshire, 354 U.S. 234,

309 F. Supp. 44

77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957); (b) the restrictions must be drawn with narrow specificity, Shelton v. Tucker, supra; and (c) the government must prove the absence of less onerous alternatives, Sherbert v. Verner, supra.

Defendants, on the other hand, take the position that Mitchell and Oklahoma are still good law and are controlling for the following reasons:

First, defendants contend, lower federal courts have relied upon and cited the Mitchell case to defeat constitutional challenges to the Act, for example, Gray v. Macy, 239 F.Supp. 658, 660 (D.Or. 1965), reversed on other grounds, 358 F.2d 742 (9th Cir.1966); Democratic State Central Committee v. Andolsek, 249 F.Supp. 1009, 1018-1019 (D.Md. 1966).

Second, defendants point out that the Supreme Court denied a request for a writ of certiorari in a Hatch Act case, Utah v. United States, 286 F.2d 30 (10th Cir.1961), cert. den., 366 U.S. 918, 81 S. Ct. 1093, 6 L.Ed.2d 240 (1961); also that in other cases presenting comparable issues, the Supreme Court has cited Mitchell as an example of reasonable restrictions which government may impose upon the exercise of First Amendment rights by its employees.⁶

Third, defendants point out that other federal courts have cited Mitchell as precedent for the government's constitutional power to reasonably restrict the exercise of the right of free speech by government employees.⁷

Fourth, defendants argue that in three recent cases state courts, although invalidating state statutes prohibiting kinds of political activity which are permitted under the Federal Act, have assumed that Mitchell establishes...