Wachsman v. City of Dallas, 81-1471
| Decision Date | 02 May 1983 |
| Docket Number | No. 81-1471,81-1471 |
| Citation | 704 F.2d 160 |
| Parties | Richard WACHSMAN, et al., Plaintiffs-Appellants, v. CITY OF DALLAS, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Kenneth H. Molberg, Dallas, Tex., for plaintiffs-appellants.
Joseph G. Werner, Asst. City Atty., Dallas, Tex., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Texas.
Before CLARK, Chief Judge, GEE and GARWOOD, Circuit Judges.
To what extent may a city regulate the political activities of its employees when city elections are conducted on a "nonpartisan" basis? Broadly stated, this is the principal issue we face in the present case.
Dallas fireman Richard Wachsman and the Dallas Police & Fire Action Committee ("Committee") 1 requested injunctive relief against the City of Dallas ("City") and the chiefs of the police and fire departments. 2 At issue were sections 16(b) and 16(c) of "(b) To avoid undue influence of city employees on the outcome of city council elections and to avoid undue influence of city councilmen or candidates for city council on city employees, the following restrictions are imposed:
Chapter XVI of the City Charter of the City of Dallas, Texas, which provide:
Appellants Wachsman and the Committee did not and do not challenge subsections (b)(4), (c)(1), and (c)(4).
The district court held section 16(b)(1) unconstitutional insofar as it prohibited "an employee of the Dallas Police Department or Dallas Fire Department from endorsing a city council candidate before any group of more than 15 people, unless such group is a convention, caucus, rally or similar gathering." 3 The City has not appealed from this holding. The district court upheld the constitutionality of the remainder of the sections
as challenged by the plaintiffs. On appeal Wachsman and the Committee present the following issues:
1. Whether the City can prohibit financial contributions by these city employees or their organization to city council candidates.
2. Whether the City can prohibit public endorsements of city council candidates by these city employees or their organization, even as narrowed by the district court's order.
3. Whether the City can prohibit these city employees from circulating (though not from signing) endorsement petitions for city council candidates.
4. Whether the City can restrict these city employees or their organization from soliciting and/or receiving campaign funds on behalf of city council candidates, or for partisan political campaigns.
5. Whether the City can prohibit these city employees from managing partisan political campaigns.
Entwined in these issues are two novel questions for this Circuit. In the "Hatch Act" cases, United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973), and Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), the Supreme Court approved certain restrictions on the political activities of federal and state employees in a partisan setting. The Hatch Act, 4 however,
does not impose a ban upon campaign contributions. Therefore, we must decide whether the City can impose restrictions in a nonpartisan setting similar to those approved in Letter Carriers and Broadrick, and, if so, whether the rationale of these cases also allows the City to prohibit city employee contributions to city council candidates.
PARTISAN/NONPARTISAN
The parties stipulated that Dallas municipal elections and offices are "nonpartisan," and that "there is no substantial party involvement in the city council elections." 5 Relying on this fact and the emphasis in Letter Carriers and Broadrick on partisan political activity by government employees, 413 U.S. at 557-67, 93 S.Ct. at 2886-2887 and 413 U.S. at 606, 93 S.Ct. at 2912-2913, Wachsman and the Committee argue that the Hatch Act cases do not control this case. Appellants also heavily rely on Morial v. Judiciary Commission, 565 F.2d 295 (5th Cir.1977) (en banc ), cert. denied, 435 U.S. 1013, 98 S.Ct. 1887, 56 L.Ed.2d 395 (1978), and Magill v. Lynch, 560 F.2d 22 (1st Cir.1977), cert. denied, 434 U.S. 1063, 98 S.Ct. 1236, 55 L.Ed.2d 763 (1978). In the latter case, without citation or explanation, the Court stated: "Political oppression of public employees will be rare in an entirely nonpartisan system." 560 F.2d at 29. Magill concerned firemen's political participation in Pawtucket, Rhode Island city elections which were "nominally" nonpartisan. The Court held that "the government may constitutionally restrict its employees' participation in nominally nonpartisan elections if political parties play a large role in the campaigns." Id. (footnote omitted). In Pawtucket parties did play such a role. 6 The Court made no firm pronouncement on whether the employees' first amendment rights would outweigh the city's interests in controlling their political activities in elections in which party involvement was absent, but it did state that in such a situation "the [governmental] interests identified by the Letter Carriers Court [would] lose much of their force." Id.
In Morial, which concerned Louisiana's statutory requirement that judges resign before running for elective nonjudicial office, the Court also found significant party involvement in a "nonpartisan" election. 7 The Court stated, "In any given case, the relevant inquiry must be whether the threat to the state's interests in the impartiality of its public servants stems from party involvement or from political involvement." 565 F.2d at 303-04 n. 8. The opinion also observes that "[i]n the context of the Hatch Act which regulates the activities of federal employees, it was natural for the Supreme Court [in Letter Carriers ] to discuss the dangers of partisanship as if they were substantially identical to the dangers of party domination," and that "[a] faction While each side in the case at bar can derive a measure of comfort from various expressions in the Morial and Magill opinions, we regard neither holding as decisive in the present context. Neither decision invalidated the restrictions there in issue. However, though the New Orleans and Pawtucket municipal elections were legally structured as "nonpartisan," political parties nevertheless played a more significant and overt role in the actual results in these cities than is the case in Dallas. Neither decision purports to definitively address the issue we face here. 8
may form around a man as much as around a party label; the judicial office may be abused by using it to promote the interest of a faction as well as a formal party." Id. Wachsman and the Committee insist that simple political involvement does not raise concerns of sufficient significance to warrant infringement of employees' rights, and that the problems raised by party involvement are what make such infringement constitutionally permissible. This, according to appellants, is why Morial states that courts must distinguish between party and political involvement. The City counters by arguing that Morial means courts should not rely on labels in deciding these cases
We are unwilling to strike down Dallas' Charter provisions merely because of the noted nonpartisan nature of the Dallas city council elections.
Not only did Letter Carriers uphold the Hatch Act, but the Supreme Court's opinion contains no direct statement that the result would have been otherwise had the restrictions not been limited to partisan activities. Admittedly, the opinion stresses the partisan factor, but, consistent with Morial, we believe that this is because political activity at the federal level is partisan, in both an inter-party and an intra-party sense. 9 This is not simply a coincidence, but is rather a factor establishing the requisite closeness of the relationship between the restrictions in question and the legitimate governmental ends to be served thereby. One aspect of this was accurately capsulized by the statement of the City's expert witness at trial that "[w]hat the Hatch Act tries to do is keep the employee from being involved in the politics that elects his boss." Accordingly, even if Hatch Act type restrictions imposed on its employees by the federal government, where the relevant politics are essentially partisan, would be constitutionally invalid if generally extended to nonpartisan political activity, it would not necessarily follow that municipalities whose relevant politics are essentially nonpartisan would not be able to constitutionally impose restrictions applicable to their nonpartisan elections on municipal employees.
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