Palmer v. United States Civil Service Commission

• Decision Date: 08 January 1962
• Docket Number: No. 13382.,13382.
• Citation: 297 F.2d 450
• Parties: Glen D. PALMER and the State of Illinois, Plaintiffs-Appellees, v. UNITED STATES CIVIL SERVICE COMMISSION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

297 F.2d 450 (1962)

Glen D. PALMER and the State of Illinois, Plaintiffs-Appellees, v. UNITED STATES CIVIL SERVICE COMMISSION, Defendant-Appellant.

No. 13382.

United States Court of Appeals Seventh Circuit.

January 8, 1962.

Morton Hollander, Chief, Appellate Section, Anthony L. Mondello, Attorney, U. S. Department of Justice, Washington, D. C., Harlington Wood, Jr., U. S. Atty., Springfield, Ill., William H. Orrick, Jr., Asst. Atty. Gen., Edward R. Phelps, U. S. Atty., Springfield, Ill., for appellant.

William C. Wines, Asst. Atty. Gen., William G. Clark, Atty. Gen., Raymond S. Sarnow, A. Zola Groves, Aubrey Kaplan, Asst. Attys. Gen., of counsel, for appellees.

Before DUFFY, SCHNACKENBERG and KILEY, Circuit Judges.

DUFFY, Circuit Judge.

This action was brought to set aside the determination of the United States Civil Service Commission (Commission) that certain political activities of the plaintiff, Glen D. Palmer, while he was Director of the Department of Conservation of the State of Illinois, violated sec. 12 of the Hatch Political Activities Act (Hatch Act).¹ The District Court directed the Commission to set aside its determination and dismiss the letter of charges which had initiated the administrative proceeding.

On June 9, 1958, the Commission issued a letter of charges against the plaintiffs. The charge made was that plaintiff Palmer, from the time of his employment by the State of Illinois, Department of Conservation, on June 28, 1953, had taken an active part in political management and political campaigns. It is not denied in this record that Palmer served actively as Precinct Committeeman and as Chairman of the Kendall County Republican Committee throughout the period of his employment.

The District Court filed a forty-three page opinion (Palmer v. United States Civil Service Commission, 191 F.Supp. 495). The opinion contained a detailed discussion of the applicability of the decision of the Supreme Court of the United States in State of Oklahoma v. United States Civil Service Commission, 330 U.S. 127, 67 S.Ct. 544, 91 L.Ed. 794. The District Court concluded the Hatch Act remedies violated plaintiff Palmer's "legal vested rights." The Court also held the maxim de minimis non curat lex was applicable to the facts in this case.

Pertinent quotations from the Hatch Act are: "No officer or employee of any State or local agency whose principal employment is in connection with any activity which is financed in whole or in part by loans or grants made by the United States or by any Federal agency * * *. No such officer or employee shall take any active part in political management or in political campaigns * * *. The term `officer or employee' shall not be construed to include * * * (3) officers holding elective offices."

It is undisputed that $2,263,661.20 of federal funds under three different federal aid programs were paid to the State of Illinois during Palmer's tenure as Director of the Department of Conservation from 1953 to 1958.

The Pittman-Robertson Act also known as The Federal Aid to Wild Life Act, 16 U.S.C.A. §§ 669-669i, authorizes the Secretary of Interior to cooperate with the states through their respective State Fish and Game Departments in wild life-restoration projects. The federal contribution to the States under this Act is set apart in the United States Treasury as "The Federal aid to wild life-restoration fund," the monies for which were accumulated from federal taxes imposed on firearms, shells and cartridges.

The Dingell-Johnson Act, 16 U.S.C.A. §§ 777-777k contains provisions for the restoration and management of all species of fish which have a material value in connection with sport or recreation in marine or fresh waters of the United States. The federal contributions come from revenues obtained from federal taxes on fishing rods, creels, reels, artificial lures, baits and flies. 16 U.S.C.A. § 777b.

The Clarke-McNary Act, 16 U.S.C.A. §§ 471, 505, 515, 564-570 makes provision for cooperative undertakings between the Secretary of Agriculture and the States or their agencies with respect to systems of forest fire prevention and suppression and the procurement, production and distribution of forest-tree seeds and plants.

The Department of Conservation is the agency designated by the State of Illinois to deal cooperatively with the Federal Government in programs concerning fish, wild life and forestry conservation. Smith-Hurd Illinois Annotated Statutes, Chapter 127, Section 63a, 63b, 63b1.

It was proved and it is without dispute that the separate Fish and Game fund maintained within the General Treasury of the State of Illinois received the federal monies under the Pittman-Robertson and the Dingell-Johnson Acts. Also, that federal monies were paid under the Clarke-McNary Act dealing with the Forestry program, and federal payments also were made under the Federal Soil Bank program.

As Director of the Department of Conservation of the State of Illinois, it was Mr. Palmer's statutory duty to supervise the nine Divisions of his Department and some ten or twelve boards, commissions and councils. He alone had complete responsibility for policy direction and administration of the Department.

Mr. Palmer estimated that fifty percent of his time was spent on the Division of Parks-Memorials, but he could make no specific allocation of the balance of his time among the other Divisions. He did say he spent less than one percent of his time on federal aid projects, and explained this was possible by reason of the activities of two full-time coordinators who supervised the administration of twenty to twenty-five federal aid projects then in the Illinois Department of Conservation. These coordinators are state employees appointed by the Director of the Illinois Department of Conservation subject, by state consent, to qualification approval by federal agencies.

The hearing examiner found the funds paid by the Federal Government under the conservation programs hereinbefore described, were "grants" under sec. 12 of the Hatch Act. He also found that Mr. Palmer, in his office as Director of the Department of Conservation, was a state officer covered by sec. 12 of the Act. However, he recommended that the matter be viewed as de minimis.

The Commission agreed with the examiner that Palmer had, in fact, been engaged in activities which were political; that the State had received substantial grants from the Federal Government, and that Palmer's office as Director was not one of the offices exempted by sec. 12 (a) of the Act. The Commission rejected the examiner's suggestion that the matter was de minimis.

Upon application by plaintiffs, the Commission reconsidered the question of de minimis, but again rejected same. In its order of October 1, 1959, the Commission pointed to Mr. Palmer's position of responsibility for all of the activities of the Department of Conservation, including those financed in whole or in part by federal funds, and noted that these responsibilities were not lessened by the delegation of duties respecting particular projects to particular subordinates. The Commission pointed out that during Mr. Palmer's tenure in office, approximately eight percent of the total expenditures of his Department came from federal grants.

The District Court's lengthy discussion of State of Oklahoma v. United States Civil Service Commission, 330 U.S. 127, 67 S.Ct. 544, 91 L.Ed. 794, strongly indicates the belief that the case was wrongly decided. Several critical references are made to that Supreme Court opinion. At 191 F.Supp. 495, at 520, appears the following quotation from the Supreme Court decision in the Oklahoma case: "`* * * It United States does have power to fix the terms upon which its money allotments to states shall be disbursed.'" The District Court comments: "There is no citation of Constitutional authority to this proposition."

Whether or not the Supreme Court sufficiently documented its holdings in the Oklahoma case by citations, footnotes or otherwise, there can be no doubt that the Court did specifically and definitely decide the Hatch Act was constitutional.²

The Supreme Court said, 330 U.S. at 143, 67 S.Ct. at 553: "The Tenth Amendment does not forbid the exercise of this power in the way that Congress has proceeded in this case. * * * The end sought by Congress through the Hatch Act is better public service by requiring those who administer funds for national needs to abstain from active political partisanship. So even though the action taken by Congress does have effect upon certain activities within the state, it has never been thought that such effect made the federal act invalid. * * *"

The District Court states, 191 F.Supp. at 532: "* * * The Supreme Court * * * has said that the Act in question Hatch Act is constitutional, and this Court is bound thereby * * *." Nevertheless, in the next paragraph the District Court states: "However, the Oklahoma case leaves open the question of the constitutional rights of the state officer."

To try to understand the distinction made by the District Judge, we quote further from his opinion: "* * * Thus it can readily be seen that the Hatch Act, when it points to the executive departments...