Otten v. Schicker, 80-1710

• Decision Date: 27 July 1981
• Docket Number: No. 80-1710,80-1710
• Citation: 655 F.2d 142
• Parties: Walter R. OTTEN, Appellant, v. John SCHICKER; Suzanne Hart; James Crowe; James Conway as the Board of Police Commissioners of the City of St. Louis; Eugene J. Camp, Chief of Police, City of St. Louis, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 142

655 F.2d 142

Walter R. OTTEN, Appellant, v. John SCHICKER; Suzanne Hart; James Crowe; James Conway as the Board of Police Commissioners of the City of St. Louis; Eugene J. Camp, Chief of Police, City of St. Louis, Appellees.

No. 80-1710.

United States Court of Appeals Eighth Circuit.

Submitted April 17, 1981.

Decided July 27, 1981.

Stephen Gilmore, Mark H. Neill (argued), St. Louis, Mo., Robert H. Dierker, Jr., Asst. City Counselor, St. Louis, Mo., for appellees.

London, Greenberg & Fleming, Lawrence J. Fleming (argued), St. Louis, Mo., for appellant.

Before HEANEY, STEPHENSON and McMILLIAN, Circuit Judges.

HEANEY, Circuit Judge.

This is an appeal from an order of the United States District Court for the Eastern District of Missouri upholding a St. Louis Police Department regulation that prohibits employees of the Department from running for elective public office. We affirm the judgment of the district court, 492 F.Supp. 455.

I

On April 21, 1980, Walter Otten, a commissioned member of the St. Louis Police Department assigned to the Ninth Police District, filed for nomination on the Democratic ticket for the office of Missouri State Senator in the Third Senatorial District. A portion of the political district extends into the Ninth Police District.

On May 12, 1980, Otten was temporarily suspended from the Department without pay for violating the Department's Manual Rule 7.010A. That Rule prohibits members of the Department from, inter alia, "becoming a candidate for, or campaigning for, an elective public office." Otten was called to appear before the Department's Suspension Advisory Board the next day and address the charge alleged against him. After the hearing, the Board recommended to the Chief of Police that Otten be suspended without pay. The Chief thereupon suspended Officer Otten.

On May 20, 1980, Otten filed a complaint in federal district court seeking injunctive, declaratory and monetary relief. Three days later, the Department's Board of Police Commissioners conducted an administrative hearing and reviewed the Chief's dismissal. The district court conducted its own hearing on Otten's motion for preliminary injunctive relief on June 5, 1980. The trial court issued its memorandum opinion and order on July 2, 1980, denying the motion. Otten appeals from the district court's July 2, 1980, order. ¹

Two months after Otten had filed his notice of appeal to this Court, on October 3, 1980, the Board of Police Commissioners issued its final order. The Board lifted Otten's suspension, demoted him to the rank of probationary police officer for not less than a year and ordered that he forfeit his salary and other benefits during the period of his suspension. ²

On appeal, Otten challenges the constitutionality of the Department's Rule 7.010A on the grounds that: (1) it impermissibly infringes his First Amendment rights; (2) it is vague and overbroad; and (3) it violates his equal protection rights.

II

We cannot agree that the Department Rule challenged here violates Officer Otten's First Amendment rights of free speech and association. The Supreme Court has held that "(n)either the right to associate nor the right to participate in political activities is absolute in any event." United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548, 567, 93 S.Ct. 2880, 2891, 37 L.Ed.2d 796 (1973); see Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 999, 31 L.Ed.2d 274 (1972). In Letter Carriers, the Court reaffirmed its holding in United Public Workers of America v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947), that Congress has the power to prohibit certain classified federal employees from holding a party office or working at the polls. The Court opined that "(a)n Act of Congress going no farther would in our view unquestionably be valid. So would it be if, in plain and understandable language, the statute forbade activities such as * * * becoming a partisan candidate for, or campaigning for, an elective public office * * *." United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, supra, 413 U.S. at 556, 93 S.Ct. at 2886. The Court concluded that "neither the First Amendment nor any other provision of the Constitution invalidates a law barring this kind of partisan political conduct by federal employees." Id.

In a companion case decided the same day, Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), the Court held that a state can restrict the political activities of its classified civil servants much in the same way that the Hatch Act proscribes partisan political activities of federal employees. The state statute sustained in Broadrick prohibited, inter alia, employees in the classified service from becoming "candidate(s) for nomination or election to any paid public office." Broadrick v. Oklahoma, supra, 413 U.S. at 606, 93 S.Ct. at 2912. It follows, without serious dispute, that the St. Louis Police Department has a similar power to place evenhanded restrictions on the partisan political conduct of its employees. See, e. g., Muller v. Conlisk, 429 F.2d 901 (7th Cir. 1970); Gray v. City of Toledo, 323 F.Supp. 1281 (N.D.Ohio 1971); cf. Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) (school board policy); Wisconsin State Employees Ass'n v. Wisconsin Nat. Res. Bd., 298 F.Supp. 339 (W.D.Wis.1969) (Board of Natural Resources policy).

The Department may determine that political restrictions of the kind involved in this case serve several valid and important state interests, including attracting qualified persons through guaranteeing job security free from the political arena, and ensuring the impartial execution of the laws. United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, supra, 413 U.S. at 565, 93 S.Ct. at 2890.

The Department's ban on certain political activities is not directed at any particular parties or any specific political points of view. The Rule at issue here has not been applied discriminatorily on the basis of race, color or creed. The Rule applies equally to all partisan activities of the type described. The Rule does not control any of the employee's personal political beliefs; nor does it restrict their right to voice such. Neither does it infringe the officers' rights or abilities to effectuate those beliefs at the polls. ³ Moreover, the President of the St. Louis Metropolitan Police Board unequivocally testified that Otten would have been granted a leave of absence to run for state senator had he only requested such.

In United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, supra, the Court reasoned that the government has an interest in regulating the conduct and "the speech of its employees that differ(s) significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the (employee), as a citizen, in commenting upon matters of public concern and the interest of the (government), as an employer, in promoting the efficiency of the public services it performs through its employees."

United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, supra, 413 U.S. at 564, 93 S.Ct. at 2890 (quoting Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968)).

Here, the Department has sought to strike a balance favorable to both itself and its employees. While it is free to formulate a Rule more favorable to the members of the Force, we feel that the present Rule is sustainable by the important governmental interests that the Department has found it serves. Accordingly, we determine that the Department Rule which forbade Officer Otten from running for State Senator did not unconstitutionally infringe his First Amendment rights. ⁴

III

Appellant Otten argues alternatively that Rule 7.010A is vague and overbroad and may not be enforced consistent with the United States Constitution. We disagree. First, there is nothing vague about the Rule. It explicitly states which types of political activity are permissible, and which are not. It cannot be seriously argued that "men of common intelligence must necessarily guess at its meaning." Broadrick v. Oklahoma, supra, 413 U.S. at 607, 93 S.Ct. at 2913 (quoting Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926)); see Grayned v. City of Rockford, 408 U.S. 104, 108-114, 92 S.Ct. 2294, 2298, 2302, 33 L.Ed.2d 222 (1972).

Regarding Rule 7.010A, we recognize that "there are limitations in the English language with respect to being both specific and manageably brief, and * * * although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest." United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, supra, 413...