Gray v. City of Toledo

Citation323 F. Supp. 1281
Decision Date10 March 1971
Docket NumberCiv. No. C 70-331.
PartiesWilliam J. GRAY et al., Plaintiffs, v. CITY OF TOLEDO et al., Defendants.
CourtU.S. District Court — Northern District of Ohio

COPYRIGHT MATERIAL OMITTED

Harland Britz, Jack Gallon, George Royer, Toledo, Ohio, for plaintiffs.

Frank Pizza, Joseph Goldberg, City Law Department, Toledo, Ohio, for defendants.

OPINION

DON J. YOUNG, District Judge:

This cause came to be heard upon a complaint filed pursuant to the provisions of 28 U.S.C. § 2201 and 42 U.S.C. § 1983. Plaintiffs, individually and as representatives of a class, pray for a declaratory judgment finding Section 143.41, Ohio Revised Code, unconstitutional as applied to their political activity, and for a declaratory judgment finding Toledo City Charter Provision 178, Rule 12 of the Toledo Police Department, and Rule 80.08 of the Civil Service Commission unconstitutional as infringing upon the plaintiffs' first and fourteenth amendment rights to free speech and association.

A hearing was held on January 25, 1971 at which both of the individual plaintiffs testified.

Plaintiff Gray testified that he had served on the police force of the City of Toledo for some thirty-one years and presently held the rank of Captain. He stated that he had to refrain from the following activities for fear of violating Rule 12: rendering opinions to various citizen groups regarding state and local government actions; the making of speeches and publication of a book on crime prevention, both of which would entail criticism of public officials; running for public office; and circulation of nominating petitions.

Plaintiff Caygill testified that he has been a member of the Toledo Police Department for a period of seven years and that he was currently serving as President of the Toledo Patrolmen's Association. He further testified that in his capacity as President of the Association he has consulted with city officials on numerous occasions with respect to economic and working conditions of the Police Department; that such activity occasionally requires the criticism of public officials, and that he has received indications that such activity is in violation of Rule 12. He further testified that he had engaged in certain partisan political activity, including a television appearance in which he endorsed a candidate for state senate, speechmaking, and the circulation of nominating petitions.

Both plaintiffs stated that they desired to engage in additional activity which they had deemed political but had refrained from so acting for fear of violating Rule 12. They further stated that they desired to engage in political activity in the future.

On cross-examination both plaintiffs testified that Rule 12 had never been enforced against them, and that to their knowledge it had never been enforced against any other member of the police department.

Defendants have raised the issue of the plaintiffs standing to maintain this action. Their argument is to the effect that since no official action has been taken against the plaintiffs, there exists no actual controversy between the parties and therefore the Court has no jurisdiction over the subject matter of the action. This argument loses sight of the fact that the requisite showing of adversity is less stringent in first amendment cases because of a possible "chilling effect" on first amendment rights. Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). In Muller v. Conlisk, 429 F.2d 901 (7th Cir. 1970), the court addressed itself to the question of a police officer's standing to challenge the constitutionality of his department's disciplinary Rule 31 and stated at p. 903:

Rule 31 stands as a "threat of sanctions" intended to inhibit the right of policemen to speak as freely as other citizens on matters of public concern. If, as alleged, it sweeps too broadly, it has the effect of inhibiting constitutionally protected speech. Plaintiff is a member of the group at which Rule 31 is directed and, as such, his right to speak is presently subject to curtailment by Rule 31. This is sufficient to establish his standing to challenge the rule quite apart from any specific sanction which has been imposed upon him for its violation. See also, National Student Association v. Hershey, 412 F.2d 1103 (D.C.Cir.1969).

Another matter which warrants preliminary discussion is the propriety of the class action. It appears to the Court that the requisites of Rule 23 of the Federal Rules of Civil Procedure are present and therefore this matter may proceed as a class action.

Pertinent to a discussion of the merits of this controversy is the case of United Public Workers of America v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947), upholding the constitutionality of the Hatch Act which prohibited, to a certain extent, political activities of federal employees. The Court made the following observations:

(1) that Congress has the power to regulate, within reasonable limits, the political conduct of federal employees, in order to promote efficiency and integrity in the public service, 330 U.S. at 96-103, 67 S.Ct. 556;
(2) that the constitutional guarantees of free speech and association are not absolutes — a court must balance the extent of these freedoms against a legislative enactment designed as a safeguard against the evil of political partisanship by governmental employees, 330 U.S. at 95-96, 67 S.Ct. 556;
(3) that the Hatch Act allows federal employees to participate in political decisions at the ballot box and prohibits only the partisan activity that would threaten efficiency and integrity and does not restrict public and private expressions on public affairs and personalities, not an objective of party action, so long as the employee does not channel his activity towards party success, 330 U.S. at 99-100, 67 S.Ct. 556;
(4) that the determination of the extent to which the political activities of governmental employees shall be regulated lies with Congress and courts will interfere only when the regulation passes beyond the permissible limitations, 330 U.S. at 102, 67 S.Ct. 556.

While the first amendment rights have become a front runner of judicial concern since the Mitchell decision in 1947, various courts faced with first amendment challenges to the Hatch Act have had little difficulty in adhering to the holding in Mitchell. See e. g., Palmer v. United States Civil Service Commission, 297 F.2d 450 (7th Cir.) cert. denied, 369 U.S. 849, 82 S.Ct. 932, 8 L.Ed.2d 8 (1962); Fishkin v. United States Civil Service Commission, 309 F. Supp. 40 (N.D.Cal.1969); Democratic State Central Committee v. Andolsek, 249 F.Supp. 1009 (D.Md.1966); Gray v. Macy, 239 F.Supp. 658 (D.Or.1965) rev'd on other grounds, 358 F.2d 742 (9th Cir. 1966). These decisions recognize that the protection of the efficiency and integrity in the public service constitutes a sufficient governmental interest to permit an encroachment upon the first amendment rights of the employees. This Court is constrained to follow these rulings. A government's interest in avoiding the danger of having promotions and discharges of civil servants motivated by political ramifications rather than merit is highly significant, Ex Parte Curtis, 106 U.S. 371, 1 S.Ct. 381, 27 L.Ed. 232 (1882). Where advancement in the public service is predicated exclusively upon merit, the entire society benefits from a more efficient and honest public service. This interest is of such a calibre that it may properly be classified as a compelling governmental interest. A showing of a compelling governmental interest is sufficient to justify an encroachment upon an individual's first amendment rights. Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963); N.A.A.C.P. v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed. 2d 405 (1963); Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed 430, rehearing denied, 323 U.S. 819, 65 S.Ct. 557, 89 L.Ed. 650 (1945).

However, any restriction imposed by the government upon its employees' political activity must be directly related to the goal of prohibiting partisan political activity, the effect of which interferes with the efficiency and integrity of the public service. If no such relationship exists, the regulation must be struck down as violative of the first amendment rights of the employees. The more remote the relationship between a particular activity and the performance of official duty, the more difficult it is for the government to justify the restriction on the grounds that there is a compelling public need to protect the efficiency and integrity of the public service. Fort v. Civil Service Commission, 61 Cal.2d 331, 38 Cal.Rptr. 625, 392 P.2d 385 (1964); Minielly v. Oregon, 242 Or. 490, 411 P.2d 69 (1966). In addition, a government's right to infringe upon first amendment rights must be so circumscribed as not, in attaining a legitimate end, to unduly infringe upon protected rights. Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940).

While the Mitchell decision concerned itself with Congress's right to regulate the political activity of certain federal employees, it is clear that any legislature, be it state or municipal, possesses the same interest and therefore has a similar right to regulate the political activity of its classified employees. See Stack v. Adams, 315 F.Supp. 1295 (N.D.Fla.1970); Wisconsin State Employees Assoc. v. Wisconsin Natural Resources Bd., 298 F.Supp. 339 (W.D.Wis. 1969); Johnson v. Civil Service Dept., 280 Minn. 61, 157 N.W.2d 747 (1968). However, the position taken by this Court is that the Hatch Act limitations sanctioned by the Supreme Court in Mitchell represents the outermost limitation to which any governmental body may restrict the political activities and free speech of its employees. The key concepts are that the promotion, protection and preservation of the efficiency and integrity of...

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