Rosenfield v. Malcolm

• Decision Date: 04 January 1967
• Docket Number: S.F. 22352
• Citation: 65 Cal.2d 559,55 Cal.Rptr. 505,421 P.2d 697
• Court: California Supreme Court
• Parties: , 421 P.2d 697, 1 Empl. Prac. Dec. P 9760, 54 Lab.Cas. P 9035 Gerald ROSENFIELD, Plaintiff and Appellant, v. James MALCOLM, as County Health Officer, etc., Defendant and Respondent

Page 505

55 Cal.Rptr. 505

65 Cal.2d 559, 421 P.2d 697, 1 Empl. Prac. Dec. P 9760,

54 Lab.Cas. P 9035

Gerald ROSENFIELD, Plaintiff and Appellant, v. James MALCOLM, as County Health Officer, etc., Defendant and Respondent.

S.F. 22352.

Jan. 4, 1967.

Marshall W. Krause, San Francisco and James R. McCall, Jr., Oakland, for plaintiff and appellant.

J. F. Coakley, Dist. Atty., Richard J. Moore, Asst. Dist. Atty., and Thomas J. Fennone, Deputy Dist. Atty., for defendant and respondent.

TOBRINER, Justice.

Like Bagley v. Washington Township Hosp. Dist., Cal., 55 Cal.Rptr. 401, 421 P.2d 409, the present case requires us to consider the constitutionality of restraints imposed upon the political activities of employees. In the present case, however, unlike Bagley, the employing agency does not even attempt to demonstrate that the restrictions imposed upon plaintiff's political activities were necessary to maintain its efficiency and integrity but boldly asserts that it may dismiss for any reason whatsoever an employee who has not attain ed protected civil service status. For the reasons set forth at length in the Bagley opinion, we conclude that the right asserted by the agency cannot be confirmed.

Plaintiff, Dr. Gerald Rosenfield, appeals from a judgment of dismissal entered pursuant to an order of the trial court sustaining defendant's demurrer to his petition for a writ of mandate to compel his reinstatement with back pay. In his amended petition Dr. Rosenfield stated that his employment commenced on September 1, 1964, when defendant, the Alameda County Health Officer, 'provisionally appointed' him to the post of assistant district health officer. Dr. Rosenfield further alleged that defendant thereafter advised him that his membership in an organization known as the 'Ad Hoc Committee to End Discrimination' 'was incompatible' with his continued occupancy of his post.

The petition describes the committee as a 'lawful, voluntary, unincorporated association devoted to the eradication of racial discrimination.' Defendant does not challenge this characterization of the committee or attempt to prove that participation in its activities would be incompatible with the satisfactory performance of the duties of an assistant district health officer.

The petition further states that, although Dr. Rosenfield indicated his willingness to cease his participation in the activities of the committee and to change his membership to an inactive status, he declined to resign entirely from the organization. Thereupon, according to the petition, defendant discharged plaintiff from his post 'for the express reason that (plaintiff) refused to resign from membership in the Ad Hoc Committee to End Discrimination.'

In the Bagley opinion we reviewed the cases which bear on the power of a governmental agency to restrict the political activities of its employees. On the basis of that analysis we held that, 'a governmental agency which would require a waiver of constitutional rights as a condition of public employment must demonstrate: (1) that the political restraints rationally relate to the enhancement of the public service, (2) that the benefits which the public gains by the restraints outweigh the resulting impairment of constitutional rights, and (3) that no alternatives less subversive of constitutional rights are available.' (Bagley v. Washington Township Hosp. Dist., Cal., 55 Cal.Rptr. 401, 403, 421 P.2d 409, 411.)

In the present case defendant makes no attempt to sustain such a burden. Rather, he calls attention to the fact that Dr. Rosenfield had not yet attained protected civil service status at the time of his dismissal and hence, under the applicable rules of the Alameda County Civil Service Commission, remained subject to dismissal without notice or hearing. From this fact defendant asks us to conclude that Dr. Rosenfield could be dismissed for any reason whatsoever, including his superior's disapproval of his political activities. Alternatively, defendant urges that even if Dr. Rosenfield could not properly be dismissed for his political activities, the reasons which motivated that dismissal are not subject to judicial scrutiny. Finally, and somewhat inconsistently with the foregoing contentions, defendant raises the claim that plaintiff failed to exhaust available administrative remedies.

Defendant's first contention that he could dismiss plaintiff without regard to plaintiff's constitutional rights cannot stand. The mere fact that plaintiff had not yet attained the security of a protected civil service position does not mean that he could be summarily dismissed for political activities displeasing to his superior. The ultimate boundaries of plaintiff's rights are set not by the rules of the Alameda County Civil Service Commission but by the Constitution of the United States. When defendant urges that the absence of any statutory restriction on his freedom to dismiss plaintiff vested him with the right to dismiss plaintiff for any reason whatsoever, he reverts to the hoary fallacy that government possesses an unbounded power to condition public employment upon a waiver of constitutional rights. (See Bagley v. Wash ington Township Hosp. Dist., Cal., 55 Cal.Rptr. 401, 421 P.2d 409.)

Nor can we accept defendant's alternative contention that even if plaintiff's dismissal for political activities was unconstitutional, this court cannot properly inquire into the considerations which in fact led to that dismissal. In support of this contention defendant argues that the discretion which governmental agencies must exercise in determining whether to retain provisional employees would be impaired by judicial review, even if such review were confined to cases disclosing violations of constitutional right. Defendant thus asserts a broad power to shield from judicial scrutiny administrative actions which, he presently concedes, may involve violations of the state and federal Constitutions.

Unquestionably, a broad discretion reposes in governmental agencies to determine which provisional employees they will retain. Considerations of comity and administrative efficiency counsel the courts to refrain from any attempt to substitute their own judgment for that of the responsible officials. Nevertheless, when the record in a given case clearly establishes that unconstitutional conditions have been imposed upon the retention of public employment, we cannot permit the deference which we would otherwise accord administrative determinations to bar us from discharging our obligation to protect overriding constitutional rights.

In the present case plaintiff's petition alleged that the sole ground for his dismissal was his superior's disapproval of his membership in the Ad Hoc Committee to End Discrimination, an activity not shown to derogate from the efficient performance of his duties as assistant district health officer. Defendant demurred to that petition and has neither sought to challenge plaintiff's allegation regarding the reason for his dismissal nor undertaken to indicate why membership in the designated committee might properly be made a basis for discharge.

'In ruling on the sufficiency of the petition for mandate as against demurrer, the court will assume to be true all material and issuable facts properly pleaded * * *.' (Stanton v. Dumke (1966) 64 Cal.2d 199, 201, 49 Cal.Rptr. 380, 382, 411 P.2d 108, 110, Flores v. Arroyo (1961) 56 Cal.2d 492, 497, 15 Cal.Rptr. 87, 364 P.2d 263.) Accordingly, we must assume for present purposes that defendant is asserting a broad power to discharge his subordinates whenever their involvement in political or social activities becomes displeasing to him, whether or not that involvement threatens in any way to impair the efficiency or subvert the integrity of the agency which he directs. Under such circumstances we cannot accept defendant's contention that we are bound by his discretion.

Our recent decision in Stanton v. Dumke, supra, 64 Cal.2d 199, 49 Cal.Rptr. 380, 411 P.2d 108, clearly vindicates the power of this court to review the dismissal of provisional or probationary employees in cases which indicate a violation of constitutional right. In the Stanton case certain former state college teachers urged that their dismissal "was based upon non academic reasons such as (their) participation in uncovering the secret 'gentlemen's agreement' of State College Presidents * * * to exclude southern sit-in students from California's state colleges, and other activities such as (their) membership in and activities on behalf of' a teacher's labor union.' (64 Cal.2d 199, 205, fn. 7, 49 Cal.Rptr. 380, 384, 411 P.2d 108, 112.)

If their petition had stated no more, it would have been invulnerable to demurrer; however, the plaintiffs annexed to their petition the 316-page transcript of the hearing which the state college chancellor had held on their complaints. 'Since it is made a part of their petition,' we declared, 'we have read the entire transcript of the hearing, which reflects lengthy questioning * * * by or on behalf of plaintiffs * * *.' (Stanton v. Dumke, supra, 64 Cal.2d 199, 206, 49 Cal.Rptr. 380, 385, 411 P.2d 108, 113.) Our review of that transcript persuaded us that, '(T)he record fully supports the chancellor's conclusion that neither union activities nor participation in uncovering the alleged secret agreement * * * contributed to the decision not to employ plaintiffs * * *.' (64 Cal.2d 199 at p. 206, 49 Cal.Rptr. 380, at p. 385, 411 P.2d 108, at p. 113.) Accordingly, we affirmed the judgment of dismissal, holding that: 'No cause of action is stated when, as in this case, an administrative hearing has been accorded, the record of which demonstrates that the charges of impropriety are illusory.' (64 Cal.2d 199 at p. 207, 49 Cal.Rptr. 380, at p. 385, 411 P.2d 108, at p. 113.)

Since, in the present case, plaintiff received neither notice nor hearing, we have no transcript to...