Mengelkoch v. Industrial Welfare Commission

• Decision Date: 03 May 1971
• Docket Number: No. 23997.,23997.
• Citation: 442 F.2d 1119
• Parties: Velma L. MENGELKOCH, Mary Fazzio, and Dea C. Kaskela, as citizens of the United States and of the State of California, on their own behalf and on behalf of all other citizens of the State of California similarly situated, Appellants, v. INDUSTRIAL WELFARE COMMISSION, and North American Aviation, Inc., a corporation, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

442 F.2d 1119 (1971)

Velma L. MENGELKOCH, Mary Fazzio, and Dea C. Kaskela, as citizens of the United States and of the State of California, on their own behalf and on behalf of all other citizens of the State of California similarly situated, Appellants, v. INDUSTRIAL WELFARE COMMISSION, and North American Aviation, Inc., a corporation, Appellees.

No. 23997.

United States Court of Appeals, Ninth Circuit.

January 11, 1971.

Rehearing Denied March 26, 1971.

As Amended on Denial of Rehearing May 3, 1971.

Syliva S. Ellison (argued); Caruthers G. Berger (argued), Washington, D.C., Evelyn E. Whitlow, Los Angeles, Cal., for appellants.

Stephen E. Tallent (argued), of Gibson, Dunn & Crutcher, Los Angeles, Cal., Edward M. Belasco (argued), Jay S. Linderman, Deputy Attys. Gen., Thomas C. Lynch, Atty. Gen., San Diego, Cal., Evelle J. Younger, Atty. Gen. of Cal., Los Angeles, Cal.; B. Franklin Walker, Deputy Atty. Gen., San Francisco, Cal., for appellees.

Before BARNES, HAMLEY and CARTER, Circuit Judges.

HAMLEY, Circuit Judge:

Velma L. Mengelkoch and two other female employees of North American Aviation, Inc., brought this action for injunctive and declaratory relief against that company and Industrial Welfare Commission (Commission), an agency of the State of California. Suing on behalf of themselves and all female employees in similar employment throughout California, they seek an adjudication that section 1350 of the Labor Code of the State of California is invalid under the Due Process and Equal Protection Clauses of the Fourteenth Amendment and under section 703(a) (1) and (2) of Title VII of the Civil Rights Act of 1964 (Act), 78 Stat. 255, 42 U.S.C. § 2000e-2(a) (1) and (2). In addition, they seek to restrain the Commission from enforcing any of the provisions of section 1350 against the company or any other employer of similarly situated female citizens, and to enjoin the company from violating section 703(a) (1) and (2) of the Act.

Section 1350 of the Labor Code of the State of California, as it existed when the suit was filed, provided that no female shall be employed in enumerated establishments and industries, including manufacturing, more than eight hours during any one day of twenty-four hours or more than forty-eight hours in one week.¹ No California statute similarly limits the hours of labor of male employees.

Section 703(a) (1) and (2) of the Act reads as follows:

"§ 703. (a) It shall be an unlawful employment practice for an employer —

"(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual\'s race, color, religion, sex, or national origin; or

"(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual\'s race, color, religion, sex, or national origin."

Pursuant to 28 U.S.C. § 2281, a three-judge court was convened. That court determined that it did not have jurisdiction and entered an order dissolving itself. Mengelkoch v. Industrial Welfare Commission, 284 F.Supp. 950 (C.D.Cal. 1968). On the same day the single district judge in whose court the case was originally filed, upon consideration of defendants' motions, dismissed the action without prejudice. Mengelkoch v. Industrial Welfare Commission, 284 F. Supp. 956 (C.D.Cal.1968).

Mengelkoch, on her own behalf and on behalf of all persons similarly situated, filed a protective appeal with this court from the decision of the single district judge. She also took an appeal to the Supreme Court from the decision of the three-judge court and from the decision of the single district judge. The Supreme Court dismissed both of those appeals for lack of jurisdiction. A protective appeal was not taken to this court from the decision of the three-judge court dissolving itself. The Supreme Court vacated the latter order and remanded the case to that court so that a timely appeal could be taken to this court from a new three-judge court order dissolving that court. Mengelkoch v. Industrial Welfare Commission, 393 U.S. 83, 89 S.Ct. 60, 21 L.Ed.2d 215 (1968).

Upon remand, the three-judge court entered an order dissolving itself for lack of jurisdiction on the grounds stated in the prior reported three-judge decision. One of the plaintiffs, Velma L. Mengelkoch, appeals from the latter order of the three-judge court. As noted above, she, alone, also appealed from the order of dismissal entered by the single district judge.

We consider first the appeal from the order of the three-judge court disavowing jurisdiction to entertain the suit.

The three-judge court had jurisdiction to entertain the suit if plaintiffs' federal constitutional attack upon section 1350 of the Labor Code of the State of California is not plainly insubstantial. See Swift & Co., Inc. v. Wickham, 382 U.S. 111, 115, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965); Schneider v. Rusk, 372 U.S. 224, 225, 83 S.Ct. 621, 9 L.Ed.2d 695 (1963). A constitutional contention is plainly insubstantial if it is obviously devoid of merit or if its unsoundness so clearly results from the previous decisions of the Supreme Court as "`* * * to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.'" Ex Parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 4, 78 L. Ed. 152 (1933) quoting Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105-106, 53 S.Ct. 549, 77 L.Ed. 1062 (1933). The three-judge court relied upon this latter ground in holding that plaintiffs' constitutional attack upon section 1350 is insubstantial.

Plaintiffs had alleged that section 1350 is invalid under the Due Process and Equal Protection Clauses of the Constitution. For the purpose of providing a factual premise for this constitutional attack, plaintiffs alleged, in some detail, that during the course of their employment with North American Aviation, Inc., overtime employment was made available to male employees doing the same kind of work, but was withheld from plaintiffs because of section 1350. It was further alleged that the hours' limitation served to deny certain positions of employment to the plaintiffs. While plaintiffs invoked the Due Process Clause as well as the Equal Protection Clause, the basis of their grievance is asserted discrimination against females and in favor of males in the matter of employment. It is too late in the day for plaintiffs to invoke the Due Process Clause for the purpose of testing the wisdom of the legislation. See Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963).

The three-judge court held, in effect, that two Supreme Court decisions to which it referred foreclose plaintiffs' contentions and leave no room for the inference that the constitutionality of the statute can be the subject of controversy. The decisions thus relied upon as settling the issue beyond reasonable debate are Muller v. Oregon, 208 U.S. 412, 28 S.Ct. 324, 52 L.Ed. 551 (1908); and Miller v. Wilson, 236 U.S. 373, 35 S.Ct. 342, 59 L.Ed. 628 (1915).

The three-judge court first expressed the view that these decisions settled the issue as of the time they were rendered in 1908 and 1915. The court then noted the lapse of time since these decisions were announced, and reviewed the considerations pro and con on the question of whether modern-day conditions call for a re-examination of Muller and Miller. The three-judge court concluded, however, that unless such changed conditions had led to intervening decisions making it clear that the Supreme Court has abandoned the reasoning of these early decisions, such changed conditions do not lend substantiality to plaintiffs' argued that the state statute is unconstitutional.²

The landmark Muller case was the first Supreme Court decision to uphold the constitutionality of a state maximum hours law. The Oregon statute there in question provided that no female shall be employed in a mechanical establishment, factory or laundry in that state more than ten hours during any one day. Muller owned a laundry and permitted females to be employed therein more than ten hours on September 4, 1905. He was convicted for violating the statute and fined ten dollars. The Supreme Court of Oregon affirmed the conviction and Muller went to the United States Supreme Court on a writ of error.

Muller contended in the Supreme Court that the Oregon statute was unconstitutional on the following grounds: (1) it abridged freedom of contract in violation of the Fourteenth Amendment; (2) it did not apply equally to all persons similarly situated, and is class legislation; and (3) it did not constitute a valid exercise of the police power because there is no necessary or reasonable connection between the limitation prescribed by the Act and the public health, safety or welfare.

In its decision, as defendants here correctly point out, the Supreme Court concerned itself primarily with this third contention pertaining to the state's police power although the Court also dealt, to some extent, with the other arguments. The Supreme Court examined the facts pertaining to the place women then held in society. It found factual support for the view that, by reason of their "physical structure" and their "performance of maternal functions"; their dependence upon man, as revealed by history; the "control" over women which men exert by reason of their superior physical strength; the inequality between men and women "in the struggle for subsistence"; and the disposition of women not to assert their full "personal and contractual rights," women are properly placed in a class by themselves subject to legislative protection "from the greed as well as the passion of man."

Some of the conditions discussed in Muller as...