Fort v. Civil Service Commission of Alameda County

Citation61 Cal.2d 331,392 P.2d 385,38 Cal.Rptr. 625
CourtUnited States State Supreme Court (California)
Decision Date28 May 1964
Parties, 392 P.2d 385 Joel FORT, M.D., Plaintiff and Respondent, v. CIVIL SERVICE COMMISSION OF the COUNTY OF ALAMEDA et al., Depfendants andAppellants. S. F. 21609.

Page 625

38 Cal.Rptr. 625
61 Cal.2d 331, 392 P.2d 385
Joel FORT, M.D., Plaintiff and Respondent,
CIVIL SERVICE COMMISSION OF the COUNTY OF ALAMEDA et al., Depfendants andAppellants.
S. F. 21609.
Supreme Court of California, In Bank.
May 28, 1964.

Page 626

[392 P.2d 386] [61 Cal.2d 332] J. F. Coakley, Dist. Atty., Douglas R. Dunning, richard J. Moore, Asst. Dist. Attys., Thomas J. Fennone and John W. Noonan, Deputy Dist. Attys., for defendants and appellants.

Bertram McLees, Jr., County Counsel (San Diego), Robert G. Berrey, Asst. County Counsel, andLawrence Kapiloff, Deputy County Counsel, as amici curiae on behalf of defendants and appellants.

[61 Cal.2d 333] Albert M. Cooper, Los Angeles, Thomas and respondent.

Leon M. Cooper, Los Angeles, Thomas E. Headrick, Marvin S. Shapiro, Beverly Hills, Arthur Brunwasser, Marshall W. Krause, Gerald D. Marcus, Daniel N. Loeb, Schofield, Hanson, Bridgett, Marcus & Jenkins, Rt. Rev. James A. Pike, San Francisco, and Lemaire & Mohi, Los Angeles, as amici curiae on behalf of plaintiff and respondent.

GIBSON, Chief Justice.

This case involves the validity of section 41 of the charter of Alameda County, which provides: 'No officer or employee of the County in the classified civil service shall directly or indirectly make, solicit or receive, or be in any manner concerned in making, soliciting or receiving any assessment, subscription, or contribution for any political party or any political purpose whatsoever. No person holdinga position in the classified civil service shall take any part in political management or affairs in any political campaign or election, or in any campaign to adopt or reject any initiative or referendum measure other than to cast his vote or to privately express his opinion. Any employee violating the provisions of this section may be removed from office.'

Joel Fort, M.D., is the Director of the Center for Treatment and Education on Alcoholism, County of Alameda, a position within the county's classified civil service system. His salary is budgeted and paid by the county, which is then fully reimbursed by the state for this expenditure. The board of supervisors has jurisdiction over the hiring and dismissal of a person in Fort's position.

In April 1962 Fort, who was aware of section 41 of the charter, became chairman of a speakers' bureau for the Contra Costa committed to reelect Governor Brown, and this fact was reported to the board by Fort's superior, the medical director of the county. 1 After a hearing in June 1962 the board dismissed Fort, determining that his activity constituted taking part in political management and affairs in a political campaign or electon in violation of section 41 of the charter. 2 In July the county civil service commission, after a hearing, affirmed the board's resolution.

[61 Cal.2d 334] Fort then commenced this proceeding in the superior court for a writ of mandate,

Page 627

[392 P.2d 387] and the trial court concluded that section 41 is unconstitutional and directed that Fort be reinstated to his position. Defendants have appealed. We have concluded that the portion of section 41 invoked against Fort is unconstitutional in that it unreasonably abridges fundamental rights of the county's classified civil service employees.

It is unquestionable that section 41 imposes restrictions upon public officers and employees which substantially affect their rights as citizens. It is true that the provision does not directly prohibit a person from engaging in the proscribed activities, but he may do so only at the penalty of losing his employment and its attendant benefits. Although it has been held that one employed in public service does not have a constitutional right to such employment (Board of Education of City of Los Angeles v. Swan (1953) 41 Cal.2d 546, 556, 261 P.2d 261), it is settled that a person cannot properly be barred or removed from public employment arbitrarily or in disregard of his constitutional rights (Cramp v. Board of Pub. Inst., Orange County, Fla. (1961) 368 U.S. 278, 288, 82 S.Ct. 275, 7 L.Ed.2d 285; Torcaso v. Watkins (1961) 367 U.S. 488, 495-496, 81 S.Ct. 1680, 6 L.Ed.2d 982; Wieman v. Updegraff (1952) 344 U.S. 183, 191-192, 73 S.Ct. 215, 97 L.Ed. 216; cf. Danskin v. San Diego Unified Sch. Dist. (1946) 28 Cal.2d 536, 545-546, 171 P.2d 885 (holding that privilege of using state property could not be withheld upon the basis of a condition amounting to an unconstitutional restraint of speech and assembly); Sherbert v. Verner (1963) 374 U.S. 398, 404-406, 83 S.Ct. 1790, 10 L.Ed.2d 965). The court stated in Wieman that 'constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory' and it was said in Torcaso, 'The fact, however, 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.'

The freedom of the individual to participate in political activity is a fundamental principle of a democratic society and is the premise upon which our form of government is based. Our state Constitution declares, '(a)ll political power [61 Cal.2d 335] is inherent in the people' (Const., art. I, § 2), and the First Amendment of the federal Constitution establishes the right of every citizen to engage in political expression and association. (See New York Times Company v. Sullivan (1964) 376 U.S. 254, 84 S.Ct. 710, 720-721, 11 L.Ed.2d 686; Sweezy v. State of New Hampshire (1957) 354 U.S. 234, 250 et seq., 77 S.Ct. 1203, 1 L.Ed.2d 1311.) In this state both statutes and judicial decisions have recognized the fundamental right of citizens generally not only to vote but also to hold office (Gov.Code, §§ 274, 275, Carter v. Comm. on Qualifications, etc. (1939) 14 Cal.2d 179, 182, 93 P.2d 140; People v. Washington (1869) 36 Cal.658, 662), and the fundamental right of employees in general to engage in political activity without interference by employers (Lab.Code, § 1101; Lockheed Aircraft Corp. v. Superior Court (1946) 28 Cal.2d 481, 486, 171 P.2d 21, 166 A.L.R. 701). 3

The restrictions appearing in section 41 of the charter are framed in broad language and cover a wide range of activities. As we have seen, the section declares that a person holding a position in the classified civil service shall not take 'any part in political management or affairs in any

Page 628

[392 P.2d 388] political campaign or election,' including a campaign to 'adopt or reject any initaiative or referendum measure.' Thus the section applies not only to all activities during a political campaign which amount to managerial direction, for example acting as chairman of a campaign, but, in view of the word 'affairs,' is broad enough to prevent employees from running for public office or from campaigning on behalf of other candidates. The prohibition is also of sufficient breadth to apply to political activity concerning all propositions on the ballot, even including measures which would directly and personally affect the employee such as one relating to his own salary or working conditions. Because of the broad and general terms of the section, it is not clear what additional conduct[61 Cal.2d 336] may be proscribed, for example membership in a political organization or attendance at political gatherings, and...

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