Koelfgen v. Jackson
| Decision Date | 19 March 1973 |
| Docket Number | No. 4-71-Civ. 314.,4-71-Civ. 314. |
| Citation | 355 F. Supp. 243 |
| Parties | Joseph M. KOELFGEN, on behalf of himself and all other non-veterans similarly situated, et al., Plaintiffs, v. John JACKSON, Individually and as Director of the Minnesota Civil Service Department, et al., Defendants, and American Legion Department of Minnesota, Intervening Defendant. |
| Court | U.S. District Court — District of Minnesota |
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Larry B. Leventhal, Minneapolis, Minn., Morley Friedman and Collins & Buckley, Delores Orey, St. Paul, Minn., and Sheldon Evidon, Minneapolis, Minn., for plaintiffs.
Arvid M. Falk, Asst. City Atty., City of Minneapolis, for defendants Gallagher, Glover, Canfield, Cotsunomiya, and Proctor.
William Young, Asst. Hennepin County Atty., Minneapolis, Minn., for defendants Gray, March, Moore, Van Valkenberg, Truax and Hanson.
R. Scott Davies, Asst. Corp. Counsel, City of St. Paul, Minn., for defendants Haiden and Gleason.
John G. Kressel, Minneapolis, Minn., for intervening defendant American Legion Dept. of Minn.
Before STEPHENSON, Circuit Judge, and LARSON and LORD, District Judges.
Judgment Affirmed March 19, 1973. See 93 S.Ct. 1502.
The plaintiffs herein have brought this suit as a class action. They claim to represent various classes of individuals who have been aggrieved by the operation of Minn.Stats. § 197.45, better known as the Veterans' Preference Law.1 The statute has two major provisions.2 Subsection 2 grants an absolute preference to veterans when they are initially appointed to a civil service job (provided they score a passing mark on the civil service examination). Subsection 3 grants a bonus of five points to the score any veteran receives on a promotional examination; however, the preference may be used only once by each veteran. Plaintiffs assert that the entire statute is unconstitutional on its face in that it creates a class of citizens —veterans—and extends to it certain benefits at the expense of other citizens. In the alternative, plaintiffs seek to have this Court sever subsection 3, the one-time preference to veterans for promotion and declare it, alone, to be unconstitutional.
The procedural history of this case is not complex. Initially, defendant Jackson's unopposed motion to dismiss as to himself was granted, as was the unopposed motion of the American Legion Department of Minnesota to intervene as a defendant. Additionally, there have been attempts by several of the plaintiffs to enjoin both the City of Minneapolis and the City of St. Paul from hiring on the basis of civil service lists reflecting the addition of veterans' preference points to applicants' scores. Both such requests were denied on the grounds that plaintiffs had failed to show a substantial likelihood of success at trial and that the balance of potential injury favored defendants.
The numerous plaintiffs claim to represent several distinct classes of persons who have been harmed by application of § 197.45.3 There has been no opposition by defendants to continuing this suit in the form of a class action. However, in making its determination, pursuant to Rule 23(c)(1), as to whether this action should be continued as a class action, this Court is inclined to modify plaintiffs' statement of the classes. The fact that plaintiffs' definition of the classes needs modification by the Court does not require dismissal. Thomas v. Clarke, 54 F.R.D. 245 (D. Minn.1971); Dolgow v. Anderson, 43 F. R.D. 472 (E.D.N.Y.1968).
It is this Court's judgment that the proper definition of the class is set out in paragraphs 5 and 6 of plaintiffs' complaint. Thus the class will consist of "All those non-veterans who have been denied employment solely because of the operations of the Veterans Preference provisions contained within Minnesota Statutes and Ordinances and regulations promulgated pursuant thereto" and "all those . . . who have been denied promotion, solely because of the operation of the Veterans Preference provisions contained within Minnesota Statutes and Ordinances and regulations promulgated pursuant thereto."4
In a class so defined the number of persons included is so numerous that joinder of all members is impracticable and there are questions of law and fact common to the class. The claims of the representatives are typical of the claims of the entire class, and the representatives assert that they will fairly and adequately protect the interests of the class. Thus the requirements of Rule 23(a) are met. Additionally, the redefined class meets the requirements of Rule 23(b)(2) in that the defendants herein have acted on grounds generally applicable to the class, i. e., they have given preference to veterans as is required by § 197.45. If plaintiffs are successful, injunctive relief with respect to the class as a whole will be appropriate. Therefore, this suit may proceed as a class action.
The classes represented by the named plaintiffs in paragraphs 7 and 8 of the complaint are not capable of clear enough definition and thus do not constitute a proper class. Dolgow v. Anderson, supra.
Those persons represented by the named plaintiffs in paragraphs 9-14 of the complaint are all included in the class as defined by the Court and it is unnecessary to further complicate this action by having numerous classes when two are sufficient.
Plaintiffs assert that this Court has jurisdiction pursuant to 28 U.S.C. § 1343(3) and (4) and 42 U.S.C. § 1983. Defendants who are connected with the Minneapolis Civil Service System have asserted that the Court is without jurisdiction since § 1343(3) confers jurisdiction only in cases involving "personal rights," not in disputes involving "property rights."
When this case was argued, this contention was the subject of much controversy on the part of both courts and scholars.5 However, subsequent events have provided this Court with an authoritative answer. In the recent case of Lynch v. Household Finance Corporation, 405 U.S. 538, 92 S.Ct. 1113, 31 L. Ed.2d 424 (1972), the Supreme Court clearly rejected the "personal—property" distinction first enunciated in Hague v. C. I. O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939) (Stone, J., concurring), and more recently resurrected by Judge Friendly in Eisen v. Eastman, 421 F.2d 560 (2nd Cir. 1969). This removes any doubt as to the impropriety of such a distinction.
On the basis of this authority there can be no doubt that the Court has jurisdiction under the provisions of 28 U. S.C. § 1343(3) and (4).
Plaintiffs have made a broad attack on veterans' preference, challenging both the initial absolute preference given by subsection 2 and the five point promotional preference granted by subsection 3. In the event we are not prepared to rule so broadly, they have proposed, as an alternative, that subsection 3 be considered separately and declared unconstitutional. Thus, for purposes of our analysis, the two subsections will be considered independently of each other.
Subsection 2 of § 197.45 gives an absolute preference in public employment to veterans, provided they meet the minimal requirements for other applicants, i. e., that they have scored a passing grade on civil service tests. In other words, all veterans who score a passing mark on the civil service exam must be appointed before any non-veteran, regardless of the relative scores of the various individuals.
Plaintiffs claim that this section creates a class of citizens—"veterans"— who are able to receive certain employment rights at the expense of all other citizens. This legislative classification, they assert, is prohibited by the Fourteenth Amendment in that it denies non-veterans equal protection of the laws.
In analyzing an equal protection claim it is first necessary to carefully view the statutory classification. The general rule is that great latitude is allowed legislatures in making classifications in social and economic legislation. Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968); Williamson v. Lee Optical, 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955). Because of the broad discretion given the legislature, the proponent of a constitutional attack on a statute usually has the burden of proving the statute denies him equal protection. Madden v. Kentucky, 309 U.S. 83, 88, 60 S.Ct. 406, 84 L.Ed. 590 (1940). However, when a statutory classification is either based upon "suspect criteria"6 or affects a "fundamental right,"7 the burden of proof shifts and such a classification will be held to deny equal protection unless it can be justified by a "compelling governmental interest." Shapiro v. Thompson, 394 U. S. 618, 627, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).
It is in this context that this Court must analyze § 197.45 of the statute. Plaintiffs would have us view § 197.45 as a statute which affects a "fundamental right," "the right to be fairly considered for public employment." On the other hand, it is defendants' contention that the statute is merely social legislation, much like any legislation which is designed to help a class which the Legislature has determined needs assistance, such as workmen's compensation or aid to dependent children.
We are inclined to agree with defendants. Plaintiffs have not convinced us that "the right to be fairly considered for public employment" is a "fundamental right," in the equal protection sense. In fact, none of the cases cited by plaintiffs involve equal protection issues.8 All plaintiffs' cases stand for is the proposition that:
". . . whenever there is a substantial interest, other than employment by the state, involved in the discharge of a public employee, he can be removed neither on arbitrary grounds nor without a procedure calculated to determine whether legitimate grounds do exist." Birnbaum v. Trussel, 371 F.2d 672,...
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