Mancuso v. Taft

• Decision Date: 17 April 1972
• Docket Number: Civ. A. No. 4751.
• Citation: 341 F. Supp. 574
• Parties: Kenneth R. MANCUSO v. James L. TAFT, Mayor, City of Cranston, Earl Croft, Director of Personnel, City of Cranston.
• Court: U.S. District Court — District of Rhode Island

341 F. Supp. 574

Kenneth R. MANCUSO v. James L. TAFT, Mayor, City of Cranston, Earl Croft, Director of Personnel, City of Cranston.

Civ. A. No. 4751.

United States District Court, D. Rhode Island.

April 17, 1972.

Ralph J. Gonnella, Providence, R. I., for plaintiff.

Peter Palumbo, Jr., Cranston City Solicitor, Providence, R. I., for defendants.

OPINION

PETTINE, Chief Judge.

The right of the City of Cranston to restrict the extra curricular political activities of its classified civil service employees is at issue here. Plaintiff, a full time police officer, became a candidate for nomination for representative to the Rhode Island General Assembly on October 19, 1971, in violation of sections of the Cranston City Charter. Faced with suspension from employment, he seeks declaratory and injunctive relief from this Court, arguing that such sections of the Charter are unconstitutional, being in violation of the First, Ninth, Tenth, and Fourteenth Amendments to the Constitution of the United States.

Relief is sought pursuant to 42 U.S. C.A. §§ 1981, 1983, and 1988. Jurisdiction is founded in 28 U.S.C. § 1343 and 28 U.S.C. §§ 2201, 2202. Plaintiff seeks preliminary and permanent injunctive relief enjoining defendants from suspending or removing him from the classified service and a declaration that the challenged provisions of the City Charter and the Civil Service Rules and Regulations are unconstitutional on their face and as applied to him. Both plaintiff and defendants have moved for summary judgment, there being no genuine issues of fact in dispute. See Besaw v. Affleck, 333 F.Supp. 775 (D.R.I.1971).

Plaintiff, Kenneth R. Mancuso, is a full time police officer and classified civil service employee of the City and Cranston. The City of Cranston Home Rule Charter § 14.09 provides that:

"The following practices are prohibited: ...

c. Continuing in the classified service of the City after becoming a candidate for nomination or election to any public office ...

. . . . . .

Any officer or employee of the City wilfully violating any of the provisions of this section, shall be removed from such office or employment."

Knowing of this Charter provision, plaintiff filed nomination papers to become a candidate for representative from the 28th District to the Rhode Island General Assembly. On October 19, 1971, the Mayor of Cranston took action pursuant to Section 14.09(c) and attempted to remove plaintiff from employment. That same day plaintiff filed his complaint in this Court. A temporary restraining order was entered, restraining the Mayor's action. Plaintiff's nomination attempt was unsuccessful, and he now faces suspension from the police force for having violated the Charter provision.¹

While the City expressly relied on Charter Section 14.09(c) in its attempts to remove or suspend plaintiff, plaintiff challenges the constitutionality of Charter Sections 14.09(c) and (f) and Civil Service Rule 10, subsections 3C and 3F. Charter Section 14.09(f) provides as follows:

"The following practices are prohibited: ...

. . . . . .

(f) Making directly or indirectly if a member of the classified service any contribution to the campaign funds of any political organization or candidate for public office or taking any part in the management of any political organization or in the conduct of any political campaign further than in the exercise of the rights of a citizen to express his opinion and to cast his vote."

Civil Service Rule 10, subsections 3C and 3F are simply restatements of Charter Sections 14.09(c) and (f). None of these provisions are limited to partisan political activity.

Thus, the question arises as to whether plaintiff has standing to challenge section 14.09(f), since there has been, it is argued, no actual or threatened enforcement of that section against him. See Wisconsin State Emp. Ass'n v. Wisconsin Natural Resources Bd., 298 F. Supp. 339, 349 (W.D.Wis.1969). Plaintiff has violated section (f)'s prohibition on taking any part in the conduct of any political campaign and is equally subject to dismissal for violation of section (f) as for violation of section (c). That the City chose one of two alternate grounds for the disciplining of plaintiff does not negate plaintiff's actual controversy with section (f). The facts that plaintiff has actually violated section (f), that he is subject to penalty for this violation, and that he challenges the facial constitutionality of the section establish his standing to attack section (f). See Wulp v. Corcoran, 454 F.2d 826 (1st Cir. 1972).

Defendants argue that United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947) (Mitchell) controls this case both on the facts and on the law and mandates a holding that the Cranston charter sections are constitutional. In Mitchell the Supreme Court upheld the constitutionality of provisions of the Hatch Act, 5 U.S.C.A. § 7324(a) (2), which prohibits officers and employees of the executive branch of the federal government, with certain exceptions, from taking

"any active part in political management or in political campaigns."

This prohibition on political activity in the Hatch Act does not extend to non-partisan political activity.² The opinion by Justice Reed employed a standard of review which gives great deference to the legislative judgment and which is most often employed in economic regulation cases — a rational relationship test:

"For regulation of employees it is not necessary that the act regulated be anything more than an act reasonably deemed by Congress to interfere with the efficiency of the public service."

330 U.S. at 101, 67 S.Ct. at 570.

A pervasive fear that partisan political activity by public employees would corrupt the neutrality of the civil service system and destroy its efficiency resounds throughout Mitchell. The Mitchell Court relied heavily on a history of support for such regulation, 330 U.S. at 96-100, 67 S.Ct. 556, 91 L.Ed. 754, including reliance on the then accepted doctrine that public employment was a privilege and not a right, 330 U.S. at 99 n. 34, 67 S.Ct. 556, 91 L.Ed. 754.

Defendants argue that Mitchell has not been overruled and that federal courts continue to follow it, see Northern Virginia Regional Park Authority v. United States Civil Service Commission, 437 F.2d 1346 (4th Cir. 1971) cert. denied 403 U.S. 936, 91 S.Ct. 2254, 29 L.Ed.2d 717; Wisconsin State Employees Association v. Wisconsin Natural Resources Board, 298 F.Supp. 339 (W.D.Wis.1969), as should this Court.

Plaintiff contends that Mitchell is no longer good law and the challenged sections do not withstand scrutiny under current standards of review in First Amendment overbreadth doctrine. Further, he claims that the ordinance is unconstitutionally vague and violates the Due Process and Equal Protection clauses of the Fourteenth Amendment and the Ninth and Tenth Amendments.

Whatever the current status of Mitchell as law, it appears that the facts of Mitchell's world are not the facts of life today. The passage of time has provided an answer, in part, to the comment of the Mitchell court:

"We do not know whether the number of federal employees will expand or contract; whether the need for regulation of their political activities will increase or diminish."

330 U.S. at 102, 67 S.Ct. at 570-571.

It has been estimated that by 1968 there were, excluding members of the armed forces, some three million federal employees and nine million State and local government employees, representing approximately 15 percent of the total working force. U.S. Bureau of the Census, Statistical Abstract of the United States: 1968 (89th ed) as cited in Emerson, The System of Freedom of Expression, 563. Restrictions on the freedom of political expression of such a large portion of the population³ is a matter of much concern. "While the language of the Constitution does not change, the changing circumstances of a progressive society for which it was designed yield new and fuller import to its meaning." Sweezy v. State of New Hampshire, 354 U.S. 234, 266, 77 S.Ct. 1203, 1220, 1 L.Ed.2d 1311 (1957) (J. Frankfurter, concurring).

The deference given by the Mitchell court to the legislative judgment about restrictions necessary on an individual's First Amendment freedoms for the good running of government has not been subscribed to in subsequent decisions.⁴ In Sweezy v. State of New Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957), a case involving investigation of a university teacher's political associations by a legislative committee, the Court stated:

"Equally manifest as a fundamental principle of a democratic society is political freedom of the individual. Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. This right was enshrined in the First Amendment of the Bill of Rights. Exercise of these basic freedoms in America has traditionally been through the media of political associations."

354 U.S. at 250, 77 S.Ct. at 1212.

Constitutional justification for the restrictions on the teacher's First Amendment freedoms required that the restriction be connected with a fundamental interest of the State. Id. at 251, 77 S.Ct. 1203.

Implicit in the standard of review articulated in Sweezy is the requirement that such restrictions be narrowly drawn. As was said in Elfbrandt v. Russell, 384 U.S. 11, at 18, 86 S.Ct. 1238, at 1242, 16 L.Ed.2d 321 (1966):

"A statute touching those protected rights must be `narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial interest of the State.' Cantwell v. Connecticut, 310 U.S. 296, 311 60 S.Ct. 900, 906, 84 L.Ed. 1213. Legitimate legislative goals `cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.' Shelton v. Tucker, 364 U.S. 479, 488 81 S.Ct. 247, 252, 5

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