Lindenbaum v. City of Philadelphia
| Decision Date | 18 April 1984 |
| Docket Number | Civ. A. No. 83-984. |
| Citation | 584 F. Supp. 1190 |
| Parties | Lesser LINDENBAUM, et al. v. CITY OF PHILADELPHIA, et al. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Steven M. Coren, Fran-Linda Kobel, Kittredge, Kaufman & Donley, Philadelphia, Pa., for plaintiffs.
Pamela L. Perry, Chief Asst. City Sol., Philadelphia, Pa., for defendants.
On February 5, 1981, the Philadelphia City Council enacted Bill 474 which reads as follows:
On May 6, 1982, the Philadelphia City Council enacted Bill 625A which reads as follows:
Plaintiffs, seven retired city employees who had been retired for more than five years as of July 1, 1980, and who had fifteen or more years of credited service with the Municipal Retirement System at the time of their retirement but who have not received the eight percent increase in pension benefits, have brought this action on behalf of themselves and all other similarly-situated individuals seeking declaratory and injunctive relief as well as damages. The complaint alleges claims under 42 U.S.C. § 1983; the United States Constitution, in particular, the protections of speech, association, due process and equal protection found in the First and Fourteenth Amendments; the Pennsylvania Constitution; and the Pennsylvania Public Employee Relations Act (PERA), Pa.Stat. Ann. tit. 43, §§ 1101.101 to .2301 (Purdon's Pamphlet 1983), in particular, §§ 1101.401 and 1101.1201 thereof.
Although plaintiffs have brought this suit as a class action, a class has not yet been certified. The matter is now before me on defendants' motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.
It is important to note that the plaintiffs currently named in the complaint fall into two distinct groups. The challenges raised by each of these two groups of plaintiffs are similar but they have important differences. Thus, the two groups of plaintiffs will be discussed separately in this Opinion.
The first group of plaintiffs consists of Lesser Lindenbaum, Sadye R. Serody, Mary Knodle and Elizabeth Shuman (hereinafter referred to as the "Lindenbaum plaintiffs."). They were all city employees who "were in employment positions represented by District Council 33, although said plaintiffs elected not to be members of said Union." Complaint at ¶ 29. These plaintiffs' claims focus upon Bill 474 which granted the eight percent pension increase to members of District Council 33. These plaintiffs claim that they are indistinguishable from those who were awarded the increased pension benefits except for the fact that they did not join District Council 33. They assert that the City cannot constitutionally distinguish between persons on this basis.
The second group of plaintiffs consists of Louis Kaplan, Louis S. Gansky and Albert Accooe (hereinafter referred to as the "Kaplan plaintiffs"). They allege that they "were in employment positions which were not represented by a union, and which were prohibited from union representation." Complaint at ¶ 34. These plaintiffs' claims focus upon Bill 625A. They argue that, by the terms of the ordinance, they qualify for the eight percent pension increase therein provided. They argue in the alternative that if the ordinance does not cover them it is unconstitutional.
Defendants, the City of Philadelphia, the City Council of Philadelphia, the Board of Pensions and Retirement of the City of Philadelphia, and the former Mayor of Philadelphia, William J. Green, have moved to dismiss the complaint as to all plaintiffs and all counts. The motion to dismiss argues that the complaint fails to state any valid federal claims. In addition, the motion asserts that the pendent state law claims should be dismissed if no federal claims survive this motion and that, without regard to the viability of the federal claims, the state law claim under PERA should fail.
Since the Lindenbaum and Kaplan plaintiffs have advanced somewhat different claims, I will review the issues raised by the motion to dismiss separately for each of the two groups of plaintiffs.
In the "second claim for relief" in the complaint, plaintiffs allege that defendants have deprived them of "the right to freedom of speech as guaranteed by the First and Fourteenth Amendments to the Constitution." Complaint at ¶ 45(a). There are no allegations in the complaint which identify the speech interest in question or explain how that interest has been infringed. These ordinances do not in terms regulate speech and there is no suggestion in the complaint or the response to the present motion that the ordinances were in some manner intended to affect speech.
Defendants' motion to dismiss specifically denies that the ordinances infringe plaintiffs' freedom of speech and plaintiffs have not taken issue with this denial in brief or on argument.2 Accordingly, plaintiffs' freedom of speech claim will be dismissed.
Defendants recognize that although the Constitution does not explicitly protect freedom of association, the Supreme Court has identified an implicit constitutional right of association and a corollary right not to associate. See e.g., Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977); Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). See generally Gaebler, "First Amendment Protection Against Government Compelled Expression and Association," 23 B.C.L.Rev. 995 (1982); Raggi, "An Independent Right to Freedom of Association," 12 Harv.C.R.—C.L.L.Rev. 799 (1977); Note, "Constitutional Law—The Constitutional Right of Nonassociation— Abood v. Detroit Board of Education," 14 Wake Forest L.Rev. 663 (1978). The Lindenbaum plaintiffs allege that Bill 474 violates their right not to associate with a union by denying them benefits because of the decision which each of them made not to join District Council 33.3
The present motion to dismiss argues that the associational interests identified by the Lindenbaum plaintiffs are not constitutionally protected. Defendants' argument in support of this position is not presented with great clarity. Thus, at times it appears that defendants are suggesting that the rights of association and non-association are not constitutionally protected unless the association in question is involved in activities which are "intertwined with the explicit guarantees under the First Amendment." Reply at 4. This form of the argument apparently would not allow plaintiffs to state a claim under the First Amendment unless the association in question is in some way linked to expression, petition, worship or assembly—the only rights explicitly identified in the First Amendment. At other points in defendants' motion, it appears that defendants are suggesting that plaintiffs' rights of association and non-association are not implicated unless the infringement of these rights also infringes the right of speech, press, worship, assembly and/or petition. In order for plaintiffs to state a viable freedom of association claim under this form of defendants' argument, plaintiffs would be required to show that the burden on association either directly or indirectly burdened one of these explicit First Amendment rights.
Although this formulation of defendant's position has some superficial logic, it is not supported by the relevant Supreme Court precedents and does not offer supportable ground for dismissal of plaintiffs' associational claims under Rule 12(b)(6). If an associational interest deserves constitutional protection only when rights of expression, assembly, worship or petition are also affected, the constitutional claim could just as easily be predicated upon the burden upon the explicit constitutional right as upon the burden on association. Thus, defendants' position assumes that the Supreme Court's repeated recognition of distinct rights of association and non-association has been superfluous. It is not, however, the Supreme Court's practice to fashion new labels for existing constitutional rights or to create new constitutional rights which are wholly redundant of long-established rights.
Furthermore, the Supreme Court has recognized that association is itself a form of expression. See, e.g., Griswold v. Connecticut, 381 U.S. 479, 483, 85 S.Ct....
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