Miller v. Iowa State ASCS Committee

• Decision Date: 14 February 1974
• Docket Number: Civ. No. 74-21-1.
• Citation: 374 F. Supp. 415
• Parties: Ervin MILLER and Joseph McLaughlin, Plaintiffs, v. IOWA STATE ASCS COMMITTEE et al., Defendants.
• Court: U.S. District Court — Southern District of Iowa

374 F. Supp. 415

Ervin MILLER and Joseph McLaughlin, Plaintiffs, v. IOWA STATE ASCS COMMITTEE et al., Defendants.

Civ. No. 74-21-1.

United States District Court, S. D. Iowa, Central Division.

February 14, 1974.

Richard G. Santi, Thoma, Schoenthal, Davis, Hockenberg & Wine, Des Moines, Iowa, for Miller.

D. M. Statton, Mahoney, Jordan & Statton, Boone, Iowa, for McLaughlin.

Allen L. Donielson, U. S. Dist. Atty., S. Dist. of Iowa, Keith E. Uhl, Asst. U. S. Dist. Atty., Des Moines, Iowa and Arnold

J. Grundeman, Shawnee Mission, Kan., for Dept. of Agriculture, Kansas.

MEMORANDUM AND ORDER

STUART, District Judge.

Plaintiffs' motion for preliminary injunction came on for hearing February 6, 1974 pursuant to Order of Court. Mr. Miller was represented by his counsel Richard G. Santi, and Joseph McLaughlin was represented by his counsel D. M. Statton. Defendants appeared by Allen L. Donielson, Keith E. Uhl and Arnold J. Grundeman. It was agreed by the parties that this hearing should constitute the hearing both for the preliminary injunction and the permanent injunction inasmuch as the sole question presented was one of procedural due process under the 5th Amendment to the United States Constitution. After hearing the evidence, listening to statements of counsel and receiving written briefs the Court extended the restraining order pending final ruling, took the case under advisement and is now prepared to render a decision.

Plaintiff Miller is presently the chairman of the Boone County ASCS Committee, an elected position. McLaughlin on the other hand is the executive director for the ASCS in Boone County, a position which he holds at the pleasure of the county committee.

Both plaintiffs were notified by certified mail on January 24, 1974, that they were being suspended from their respective positions effective the close of business on January 25, 1974. On January 28, 1974, both plaintiffs applied to the Court for a temporary restraining order, which was granted.

Plaintiff Miller was suspended from his position pursuant to 7 CFR 7.28, and charged with political activities in the County Office by using county office personnel, equipment and supplies during working hours, consuming alcohol on government leased property while in duty status and charging personal telephone toll calls to the government.

The charges made against plaintiff McLaughlin pursuant to 7 CFR 7.29, include forging the signature of another employee on CCC drafts, illegal use of county office collections, and granting unauthorized activities of counter personnel under his jurisdiction during duty hours.

In both instances the plaintiffs were given 15 days from the date of mailing of the letter to them to request a hearing before the State ASCS Committee to show why the action should not be taken as provided by the Code of Federal Regulations.

Plaintiffs' complaint seeks an injunction restraining and preventing the defendants from suspending the plaintiffs without the benefit of a hearing. Plaintiffs also sought a preliminary injunction against defendants during the course of this lawsuit. The Court has had ample opportunity to read the briefs and cases cited by the parties in this suit. After a review of those authorities the Court is of the opinion that plaintiffs' request for injunctive relief must be denied. The Court is of the further opinion, however, that those portions of 7 CFR 7.28, and 7 CFR 7.29, which relate to a pre-termination "hearing" are unconstitutional, and as such must give way to a hearing procedure to be outlined below.

Pre-Suspension Hearing

For the purpose of this ruling, it is assumed without deciding that the liberty and property rights claimed by both plaintiffs are encompassed within the protection of the 5th Amendment and they are entitled to procedural due process. The question is whether such due process requires a hearing prior to suspension.

The procedural safeguards called for depend upon a balancing of the governmental and private interests involved. The government's interest is in maintaining efficiency through the prompt removal or suspension of employees who presently contribute to inefficiency because of their past conduct. The employee's interest is in avoiding unwarranted dismissal or suspension "for cause" when it is not warranted by the facts. Kennedy v. Sanchez (D.C.Ill., 1972), 349 F.Supp. 863, 865. The theory "for cause" presupposes a right to hearing, notice and appeal. Freeman v. Gould Special School District (CA 8, 1969), 405 F.2d 1153. There is no question that plaintiffs' suspension here has been predicated on "cause" and that as such they are entitled to a hearing that fully conforms with procedural due process.

The Court has found no authority to indicate that a presuspension hearing is guaranteed plaintiffs as a matter of due process. The Court has been cited to a plethora of recent cases that deal with the developing area of procedural due process, however, only two deal with the issue of suspension as it is now before the Court. The remainder of the cases involve procedural due process but they are not determinative of plaintiffs' rights as they pertain to a presuspension hearing.

The issue of suspension of a public official received high court scrutiny very early in the case of Wilson v. North Carolina (1898), 169 U.S. 586, 18 S.Ct. 435, 42 L.Ed. 865. In that case, at page 591, 18 S.Ct. 435, the Court held that the act of a governor in suspending a public official is not a finality. And under the Wilson rationale, there is no inherent right to a presuspension hearing. Fair v. Kirk (D.C.Fla., 1970), 317 F.Supp. 12, 16. Absent special circumstances there has been no definitive determination that anyone deserves a presuspension hearing. Ibid, p. 16.

(1) Cognizant of the definitional differences between "suspension" and "removal", this Court is of the opinion that eradication of corrupt practices in government is such an important responsibility that suspension of a public official prior to a hearing may be consonant with due process. Ibid, p. 17.

(2) In this case the Court has weighed and balanced the nature of plaintiffs' interests and determined that they are such that a presuspension hearing is not necessary because of the fact that they are afforded a pre-termination hearing, and because of the conflicting governmental and private rights. The Court has not found present here an overriding property interest on the part of the plaintiffs, such as was present in Goldberg v. Kelly (1970), 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (welfare recipients); Fuentes v. Shevin (1972), 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (replevined personal property); Bell v. Burson (1971), 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (suspension of drivers license); or Stanley v. Illinois (1972), 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (rights of unwed father as to his children). Plaintiff Miller does not rely on the salary paid him as chairman of the county committee for his livlihood; and while plaintiff McLaughlin does rely on his salary for his support he is not in the dire need contemplated by Goldberg. Neither plaintiff relies primarily on the issue of deprivation of property.

Instead, the plaintiffs alleged, and the Court agrees, that the due process question posed here is one concerning loss of liberty. That issue is crystalized by the fact that injury to reputation is claimed and termination and disqualification from government service would effectively preclude them from ever holding another position with the ASCS. The practical effect, as noted more fully later, would be to seriously affect their future employment or office holding opportunities. The injury to reputation occurred when the charge was made public. A presuspension hearing would not undo that. The important thing is that plaintiffs be afforded an opportunity to clear their names. The disqualification does not become effective until termination.

This Court is not advocating a standard for government employees reminiscent of Cafeteria & Restaurant Workers Union v. McElroy (1961), 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230, nevertheless, in cases involving federal officials in decision-making capacities, suspension prior to a full hearing to determine disqualification or termination when adequate notice of the charges involved is made, comports with the standards as set down in the line of cases involving termination of government employees. See Board of Regents v. Roth (1972), 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548; McNeill v. Butz (CA 4, 1973), 480 F.2d 314; Slochower v. Board of Higher Education (1961), 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692; Cafeteria & Restaurant Workers Union v. McElroy, supra; Fair v. Kirk, supra, and Kennedy v. Sanchez, supra. A full pretermination hearing complying with procedural due process, as it will be set down below, will in the opinion of the Court fully and adequately protect plaintiffs' constitutional rights.

This Court has found no special circumstances present requiring defendants to give plaintiffs a presuspension hearing to conform to procedural due process.

Unconstitutionality of Code of Federal Regulations

This brings the Court to a discussion of just what procedural due process plaintiffs are entitled to prior to any disqualification or removal under Sections 7.28 and 7.29. As noted at the outset of this memorandum, the Court is of the opinion that the hearing process contained in these two sections is unconstitutional on its face.

The Code of Federal Regulations sections under which plaintiffs Miller and McLaughlin were suspended are nearly identical in text. The major difference is that section 7.28 deals with county committeemen, community committeemen; delegates to the county conventions or alternates to those offices. Section 7.29 concerns the removal from office of county executive directors and other employees of the County ASCS Committees. Suspension and...