Hetherington v. State Personnel Bd.

• Citation: 147 Cal.Rptr. 300,82 Cal.App.3d 582
• Parties: , 27 Fair Empl.Prac.Cas. (BNA) 1182, 17 Empl. Prac. Dec. P 8606 Dennis Paul HETHERINGTON et al., Plaintiffs and Appellants, v. CALIFORNIA STATE PERSONNEL BOARD et al., Defendants and Respondents. Civ. 16513.
• Decision Date: 07 July 1978
• Court: California Court of Appeals

Page 300

147 Cal.Rptr. 300

82 Cal.App.3d 582, 27 Fair Empl.Prac.Cas. (BNA) 1182,

17 Empl. Prac. Dec. P 8606

Dennis Paul HETHERINGTON et al., Plaintiffs and Appellants, v. CALIFORNIA STATE PERSONNEL BOARD et al., Defendants and Respondents.

Civ. 16513.

Court of Appeal, Third District, California.

July 7, 1978.

Rehearing Denied Aug. 1, 1978.

Peter E. Sheehan, Henry S. Hewitt, Clifford C. Sweet, Legal Aid Society of Alameda County, Oakland, for plaintiffs and appellants.

Paul Perrett, Susan Spurlark, Employment Law Center, San Francisco, amicus curiae in support of plaintiffs and appellants.

Evelle J. Younger, Atty. Gen., Anthony S. DaVigo, Deputy Atty. Gen., for defendants and respondents.

REGAN, Associate Justice.

In this appeal from a judgment of the trial court denying plaintiffs injunctive and declaratory relief we consider the constitutionality of Government Code section 1029, which prohibits the employment of an ex-felon in any governmental positions classified as peace officers.

Government Code section 1029 reads as follows: "(a) Except as provided in subdivision (b), any person who has been convicted of a felony in this state or any other state, or who has been convicted of any offense in any other state which would have been a felony if committed in this state, is disqualified from holding office or being employed as a peace officer of the state, county, city, city and county or other political subdivision, whether with or without compensation and is disqualified from any office or employment by the state, county, city, city and county or other political subdivision whether with or without compensation, which confers upon the holder or employee the powers and duties of a peace officer.

"(b) Any person who has been convicted of a felony, other than a felony punishable by death, in this state or any other state, or who has been convicted of any offense in any other state which would have been a felony, other than a felony punishable by death, if committed in this state, and who demonstrates the ability to assist persons in program of rehabilitation may hold office and be employed as a parole officer of the Department of Corrections or the Department of the Youth Authority if he has been granted a full and unconditional pardon for the felony or offense of which he was convicted. Notwithstanding any other provision of law, the Department of Corrections or the Department of the Youth Authority may refuse to employ any such person as a parole officer regardless of his qualifications.

"(c) Nothing in this section shall be construed to limit or curtail the power or authority of any board of police commissioners, chief of police, sheriff, mayor, or other appointing authority to appoint, employ, or deputize any person as a peace officer in time of disaster caused by flood, fire, pestilence or similar public calamity, or to exercise any power conferred by law to summon assistance in making arrests or preventing the commission of any criminal offense." (Amended by Stats.1971, c. 1616, p. 3476, § 1.)

Plaintiff Hetherington (a white male) was informed in 1975 and in 1976 by defendant Personnel Board that due to his prior unpardoned felony convictions he was ineligible to file an application or take an examination for the positions of Parole Agent I, Group Supervisor, or Youth Counselor with the California Youth Authority. He had been convicted of grand theft in 1963 (Pen.Code, §§ 484, 487) and of issuance of a check without sufficient funds in 1967 (Pen.Code, § 476a). He had been paroled from prison in 1969. ¹

Plaintiff Johnson (a black male) was convicted of grand theft in 1968. He has attempted to obtain employment in a peace officer position but has been, and presently is, dissuaded from doing so by the knowledge of the defendant Personnel Board's practice, pursuant to Government Code section 1029, of disqualifying all individuals convicted of any felony.

It was also alleged in the complaint that there are over 40,000 positions in the state defined as peace officer positions; that the felony exclusion of section 1029 has a disproportionate adverse impact against Blacks, Spanish-surnamed, Asian-Americans and American Indians; and that the exclusion is not reasonably related to the ability to perform the duties of the positions, nor justified by any compelling business purpose.

A proposed first amended complaint, which was denied filing by the superior court, would have added as a plaintiff Paul T. Takagi (an Asian male) and would have added allegations of the number of ex-felons (about 120,000) who were barred from the large number of positions (about 100,000) in the peace officer category. Also there were proposed allegations of the nature of many peace officer positions which indicate they do not require carrying weapons; and that some of the positions, such as parole agents and counselors in the Youth Authority were of a nature such that ex-felons would be particularly well suited to perform. It was also alleged that certain positions in the Youth Authority not closed to ex-felons have duties similar to those defined as peace officers which were closed. Moreover, it was alleged that the federal government and the majority of states do not absolutely prohibit employment of ex-felons in positions similar to those of parole agents, youth counselors and group supervisors employed by the California Youth Authority.

Plaintiffs contend it was error to deny the motion for preliminary injunctive relief since Government Code section 1029 is unconstitutional as violative of the equal protection clauses of the United States and California Constitutions.

There are two standards of review applied by the courts in equal protection questions. The first or conventional standard requires only that differential treatment of classes of individuals have some "reasonable basis" or bear ". . . 'some rational relationship to a conceivable legitimate state purpose.' " (Schwalbe v. Jones (1976) 16 Cal.3d 514, 517-518, 128 Cal.Rptr. 321, 323, 546 P.2d 1033, 1035; see also Dandridge v. Williams (1970) 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491, 501.) A second test or standard has been developed to be applied to a classification drawn along lines which renders it "suspect" in constitutional terms or which touches a "fundamental interest". These are matters such as race or sex rights "explicitly or implicitly guaranteed by the Constitution.' " (See D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 17-18, 112 Cal.Rptr. 786, 798, 520 P.2d 10, 22.) In such case strict scrutiny is required and the state bears a burden of establishing that it has a "compelling interest" which justifies the law and that the classification is necessary to further that purpose or interest. (San Antonio School District v. Rodriguez (1973) 411 U.S. 1, 33-34, 93 S.Ct. 1278, 36 L.Ed.2d 16, 43; D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d at p. 17, 112 Cal.Rptr. 786, 520 P.2d 10; Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 16, 95 Cal.Rptr. 329, 485 P.2d 529.)

Plaintiffs contend the classification in Government Code section 1029, based on a criminal record, is a "suspect" classification and that the strict scrutiny, or compelling interest test, should be applied. It is argued by plaintiffs that the broad range of positions encompassed within section 1029 as "peace officers" brings this case within the scope of those occupations called " 'the common occupations of the community' " as to which there may be a fundamental interest in the right to pursue employment. (See, e. g., Sail'er Inn, Inc. v. Kirby, supra, 5 Cal.3d at p. 17, 95 Cal.Rptr. 329, 485 P.2d 529.) We reject his argument. We do not perceive of the various positions encompassed within the term "peace officer" as used in section 1029, applying only to employment by various agencies of government, to be "common occupations of the community." (See D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d at p. 18, 112 Cal.Rptr. 786, 520 P.2d 10; cf. People v. Ryser (1974) 40 Cal.App.3d 1, 6-8, 114 Cal.Rptr. 668.) We know of no explicit or implicit constitutional guarantee of a right to a job with any governmental agency. (See Townsend v. County of Los Angeles (1975) 49 Cal.App.3d 263, 267, 122 Cal.Rptr. 500.) Nor do we consider peace officer positions to be a "major sector of the economy" as claimed by plaintiffs. Even if it could be legitimately said that such positions constitute a major sector of the economy this has never been held to be a critical factor, as such, calling for application of the strict standard test of equal protection.

In short, contrary to plaintiffs' arguments, ex-felons, considered in their posture of exclusion from peace officer employment by section 1029, do not fall within any classification recognized by the courts as "suspect". The alleged discrimination in the complaint does not rise to the level established by court decisions, of discrimination based on sex, race or lineage, or discrimination depriving persons of rights explicitly guaranteed by either the United States or California Constitutions under the equal protection of the laws concept.

It is also urged that the strict scrutiny or compelling interest test should be applied on the basis of race and poverty, due to the asserted fact that racial and ethnic minorities comprise membership in the class of ex-felons at a rate considerably disproportionate to their representation in the adult population of California. Assuming the statute affects a disproportionate percentage of the total minority or ethnic population it would also have to be established that there is a statutorily significant percentage correlation or relationship. We cannot infer such a correlation or relationship and none was alleged in the complaint. In fact, this entire constitutional theory advanced by amicus based on race was not presented below, nor was there any allegation as to an impact of the...