Minielly v. State

• Decision Date: 09 February 1966
• Citation: 411 P.2d 69,242 Or. 490
• Parties: , 28 A.L.R.3d 705 George MINIELLY, Respondent, v. STATE of Oregon, Hon. Robert Y. Thornton, Attorney General, Multnomah County Civil Service Commission, Wrex Cruse, Chairman, S. Eugene Allen, Commissioner, and Donald Walker, Dommissioner, Appellants.
• Court: Oregon Supreme Court

Page 69

411 P.2d 69

242 Or. 490, 28 A.L.R.3d 705

George MINIELLY, Respondent, v. STATE of Oregon, Hon. Robert Y. Thornton, Attorney General,

Multnomah County Civil Service Commission, Wrex

Cruse, Chairman, S. Eugene Allen,

Commissioner, and Donald

Walker,

Dommissioner,

Appellants.

Supreme Court of Oregon, In Banc.

Argued and Submitted Oct. 28, 1965.

Decided Feb. 9, 1966.

George M. Joseph, Deputy Dist. Atty., Portland, argued the cause for appellants. With him on the brief was George Van Hoomissen, Dist. Atty., Multnomah County, Portland.

Charles V. Elliott, Portland, argued the cause and filed the brief for respondent.

Before McALLISTER, C. J., and PERRY, SLOAN, GOODWIN, DENECKE, HOLMAN, and LUSK, JJ.

HOLMAN Justice.

This is a suit for a declaratory judgment. Plaintiff is a deputy sheriff of Multnomah County and as such is subject to the state civil service law applicable to counties of more than 300,000 population. He announced his intention to become a candidate for sheriff of Multnomah County at the next election. If he were to do so he would violate the provisions of ORS 241.520 and would automatically forfeit his civil service position by reason of ORS 241.990(3). These statutory provisions are as follows:

ORS 241.520:

'Candidacy for public officer prohibited. No person employed under civil service, or registered on the eligible list of the classified civil service, of any county coming under ORS 241.020 to 241.990 shall be a candidate for popular election to any public office, unless such person immediately resigns from the position which he then holds under civil service, or, in the case of persons on the eligible list of the classified civil service, unless such persons immediately have their names stricken from such eligible list.'

ORS 241.990(3):

'Violation of ORS 241.520 results in forfeiture by the offender of all rights to the position he then holds under civil service, or may have on the eligible list, all right to remain on the eligible list of the classified civil service and all right to the public office for which he is a candidate.'

Plaintiff requested that the court declare the statutes void because of unconstitutionality and to grant an injunction against their enforcement. The trial court found the statutes to be unconstitutional. The defendants appeal.

The plaintiff contends that the statutes violate Article I, §§ 8 and 20 of the Oregon Constitution and Amendments I and XIV of the United States Constitution. He argues that he is deprived of his right of freedom of expression, equal privileges and immunities, equal protection of the laws and liberty and property without due process. The trial court found that the statutes were unconstitutional because they deprived plaintiff of 'his right as a citizen to participate in the political life of his mation, county, state and local government, where there is no compelling purpose relating to all the applications of the statute involving efficiency and integrity of the public service.'

This is not a matter of first impression in this state. In the case of Stowe v. Ryan, 135 Or. 371, 296 P. 857 (1931), the chief deputy county clerk of Multnomah County, who was employed under civil service, brought a proceeding to review his dismissal from employment by the Civil Service Commission because he took part in political activity contrary to statute. He complained the statute restrained free expression of opinion and took the property of individuals without due process of law. ¹ The court refused to interfere with petitioner's dismissal, quoting R.C.L. at page 382, at page 861 of 296 P. of the opinion as follows:

"* * * A public office is not the property of an office holder within the constitutional provisions against depriving a man of property, nor does it ever become a vested right as against the right of a state to remove him; * * *and one who desires to serve in an official capacity must submit to the orders and regulations under which he is admitted to the service."

[242 Or. 494] At page 384, at page 862 of 296 P. the court stated:

'Manifestly there is no merit in the contention that the civil service law restrains our ancient liberty by restricting the right to speak, write, or print freely. Or.Const. art. 1, § 8.'

The court also relied on the case of McAuliffe v. City of New Bedford, 155 Mass. 216, 220, 29 N.E. 517 (1892). In this case a policeman was removed from employment for violation of a rule prohibiting members of the force from becoming members of a political committee. It was claimed by him that the rule was constitutionally objectionable. Judge Oliver Wendell Holmes answered the contention by saying: 'The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.'

The United States Supreme Court in United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947), held the acts of a federal employee which violated the provisions of the Hatch Act prohibiting 'active participation in political management and political campaigns' were a constitutional basis for disciplinary action. The court held that Congress had the power to regulate within reasonable limits the political conduct of federal employees in order to promote efficiency and integrity in the public service.

Another section of the Hatch Act, which required that state employees engaged in functions financed 'in whole or in part by loans or grants by the United States' abstain from political activities, was upheld in State of Oklahoma v. United States Civil Service Comm'n, 330 U.S. 127, 67 S.Ct. 544, 91 L.Ed. 794 (1947).

In Garner v. Board of Public Works of City of Los Angeles, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317 (1951), it was held that a requirement that public employees execute affidavits disclosing or denying membership in the Communist party was a reasonable requirement of fitness for employment and not in violation of due process. The court, 341 U.S. at page 721, 71 S.Ct. at page 913, said: 'This Court has held that Congress may reasonably restrict the political activity of federal civil service employees for such a purpose, United Public Workers of America v. Mitchell, 330 U.S. 75, 102-103, 67 S.Ct. 556, 570, 571, 91 L.Ed. 754 (1947), and a State is not without power to do as much.' Concurring in part, Justice Frankfurther added that 'The Constitution does not guarantee public employment.' 341 U.S. at 724, 71 S.Ct. at 915.

In Adler v. Board of Education of City of New York, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517 (1952), the court upheld the New York Feinberg Law which established elaborate procedures for investigating the fitness of public employees. The law was alleged to violate and abridge freedom of speech. The court acknowledged that public employees have First Amendment rights and, at page 492, at page 384 of 72 S.Ct. said:

'* * * It is equally clear that they have no right to work for the State in the school system on their own terms. [citing Mitchell] They may work for the school system upon the reasonable terms laid down by the proper authorities of New York. If they do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere.'

The above cases would indicate that prolitical rights of public employees may constitutionally be severely inhibited. However, after Adler the trend began to move the other way. The first case which initiated the countervailing trend was Wieman v. Updegraff, 334 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952), in which a state law requiring the dismissal of public employees for membership in subversive organizations was held to be an arbitrary violation of due process. The court said:

'But appellee insists that Alder and United Public Workers of America v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947), are contra. We are referred to our statement in Adler that persons seeking employment in the New York public schools have 'no right to work for the State in the school system on their own terms. * * * They may work for the school system upon the reasonable terms laid down by the proper authorities of New York.' 342 U.S. at page 492, 72 S.Ct. at page 384. To draw from this language the facile generalization that there is no constitutionally protected right to public employment is to obscure the issue. * * * We need not pause to consider whether an abstract right to public employment exists. It is sufficient to say that constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory. * * *' 344 U.S. at 191-192, 73 S.Ct. at 219.

In Slochower v. Board of Higher Education of City of New York, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956), the court invalidated for violation of due process the city charter section requiring termination of employment for invocation of the privilege against self-incrimination. The court said:

'* * * To state that a person does not have a constitutional right to govern employment is only to say that he must comply with reasonable, lawful, and nondiscriminatory terms laid down by the proper authorities.' 350 U.S. at 555, 76 S.Ct. at 639.

In Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958), the court held that it was a denial of due process to require veterans to sign loyalty oaths as a condition precedent to obtaining tax exemptions. The court, referring to the Wieman case, said:

'* * * This Court has similarly rejected the contention that speech was not abridged when the sole restraint on its exercise was withdrawal of * * * the opportunity for public employment * * *.' 357 U.S. at 518-519, 78 S.Ct. at 1338.

The court held that a state must meet constitutional standards before it may legally deprive a public employee of his job in Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961). In this case the denial of state...