Wisconsin State Emp. Ass'n v. Wisconsin Nat. Resources Bd.

• Decision Date: 02 April 1969
• Docket Number: No. 68-C-143.,68-C-143.
• Citation: 298 F. Supp. 339
• Parties: WISCONSIN STATE EMPLOYEES ASSOCIATION, COUNCIL 24, AFSCME, AFL-CIO, in its own behalf and in behalf of all its members; Marvin Kaukl, individually and in behalf of those similarly situated, Plaintiffs, v. WISCONSIN NATURAL RESOURCES BOARD, the Wisconsin Department of Natural Resources, and Daniel K. Taylor, Hubert Behnke, Arthur R. MacArthur, Charles F. Smith, John M. Potter, Gerald Rohlich and Russel G. Lynch, individually, and as members of the Natural Resources Board; Lester P. Voigt, individually, and as Secretary of the Department of Natural Resources; R. J. Smith, individually, and as Administrator of the Division of Fish, Game, and Law Enforcement within the Department of Natural Resources, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

298 F. Supp. 339

WISCONSIN STATE EMPLOYEES ASSOCIATION, COUNCIL 24, AFSCME, AFL-CIO, in its own behalf and in behalf of all its members; Marvin Kaukl, individually and in behalf of those similarly situated, Plaintiffs, v. WISCONSIN NATURAL RESOURCES BOARD, the Wisconsin Department of Natural Resources, and Daniel K. Taylor, Hubert Behnke, Arthur R. MacArthur, Charles F. Smith, John M. Potter, Gerald Rohlich and Russel G. Lynch, individually, and as members of the Natural Resources Board; Lester P. Voigt, individually, and as Secretary of the Department of Natural Resources; R. J. Smith, individually, and as Administrator of the Division of Fish, Game, and Law Enforcement within the Department of Natural Resources, Defendants.

No. 68-C-143.

United States District Court W. D. Wisconsin.

April 2, 1969.

COPYRIGHT MATERIAL OMITTED

Richard L. Cates, John H. Bowers, Madison, Wis., for plaintiffs.

Laurence W. Hall, Madison, Wis., for defendants.

Before FAIRCHILD, Circuit Judge, and DOYLE and GORDON, District Judges.

OPINION, ORDER AND JUDGMENT

JAMES E. DOYLE, District Judge.

Plaintiffs have brought this action to challenge § 16.30, Wis.Stats., and the "Policy on Political Activities of Department Personnel" (hereinafter the "Policy") of the Wisconsin Department of Natural Resources (hereinafter the Department). They seek a declaration that the statute and the "Policy" violate the Constitution of the United States, and an injunction against their enforcement.

Jurisdiction is invoked, pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343 (3) and (4). Jurisdiction is present. Defendants, acting under color of state law, have undertaken to deprive plaintiff Kaukl of certain freedom of action. It remains to be determined whether this freedom of action is a right, privilege, or immunity secured to him by the Constitution or Laws of the United States. This three-judge court has been convened pursuant to 28 U.S.C. §§ 2281, 2284.¹

Plaintiffs assert two causes of action with respect to § 16.30 and the Departmental "Policy" (both of which prohibit certain political activities by employees of the Department): (1) that these provisions deprive them of the right of political expression protected by the First and Fourteenth Amendments; and (2) that these provisions deprive them of the equal protection of the laws in violation of the Fourteenth Amendment.

Plaintiff, Wisconsin State Employees Association, Council 24, AFSCME, AFL-CIO (hereinafter WSEA), is a labor organization with its principal office located at 119 Monona Avenue, Madison, Wisconsin. Plaintiff WSEA alleges that, through some 61 local affiliates, it represents approximately 9000 employees of the State of Wisconsin in the classified civil service concerning employee rights and conditions of employment. Plaintiff WSEA undertakes to sue in its own behalf and in behalf of its members, pursuant to Rule 23(a) and Rule 23(b) (2), Federal Rules of Civil Procedure.

Plaintiff Kaukl is a citizen of the United States and a resident of Wisconsin. He is employed by the Department as a poultryman at the game farm, is classified as a Poultryman I in the classified civil service of the state, and is a member of WSEA Local 487. He undertakes to sue in his own behalf and in behalf of all others similarly situated, pursuant to Rule 23(a) and Rule 23(b) (2).

Defendants are the Department; the Wisconsin Natural Resources Board (hereinafter the Board), the policy making body of the Department; and members of the Board and certain officers of the Department, officially and individually.

It appears from the complaint that on July 9, 1968, plaintiff Kaukl filed nomination papers as a Democratic candidate for the office of Sheriff of Columbia County. Thereafter, outside of working hours, he campaigned throughout the county and distributed leaflets. He solicited assistance and contributions from the County Democratic Party. The complaint alleges that such activities are claimed by the Department to fall within the scope of § 16.30 and the Department's "Policy". § 16.30 provides:

"No person holding a position in the classified civil service shall directly or indirectly solicit or receive or be in any manner concerned with soliciting or receiving any assistance or subscriptions or contributions for any political party or any political purpose whatsoever. No person shall orally or by letter solicit or be in any manner concerned in soliciting any assistance, subscription, or support for any political party or purpose whatsoever from any person holding any position in the classified civil service. No person holding any position in the classified civil service shall during the hours when he is on duty engage in any form of political activity calculated to favor or improve the chances of any political party or any person seeking or attempting to hold political office, nor shall he engage in any political activity when not on duty to such an extent that his efficiency during working hours will be impaired or that he will be tardy or absent from his work. Any violation of the provisions of this section shall be adequate grounds for dismissal."

The Department's "Policy" provides:

"It is the policy of the Conservation Commission that all department personnel, permanent or seasonal, while on the payroll, adhere to the requirements of Section 16.30 of the Wisconsin Statutes which relates to political contributions and activities. Each employe shall also refrain from political controversy which might lead to a reasonable belief that he was subverting his position and his authority to further his political aims, and no employe shall run for any partisan elective office, or loan or use any equipment or materials belonging to the Department for political purposes.

"The exercise of the right to decide for one's self, his advocacy of men and measures, and the right of suffrage, is denied no one. No restriction shall be placed on an employe's support or opposition to any conservation bill in the State Legislature except that no employe of the Department shall publicly oppose in any way any conservation bill which the Commission supports, or support in any way any conservation bill to which the Commission is opposed, according to their official action. Also, no employe shall appear on a conservation measure before any legislative body without the approval of the Director."

On July 30, 1968, the Supervisor of the Poynette Game Farm (hereinafter the Supervisor) informed plaintiff Kaukl that in light of the statute and the "Policy" the following choices were open to him: he could withdraw from the race for sheriff; he could take a leave of absence from his job; or he could resign. This conversation was confirmed in a letter from the Supervisor to plaintiff Kaukl, dated August 2, 1968. On August 5, 1968, the Supervisor again met with plaintiff Kaukl to advise him further of the policy of the Department. Plaintiff Kaukl was at that time advised that it would not be necessary for him to resign or withdraw, but that he should file a grievance. He did not file a grievance. He inquired of the Attorney General of Wisconsin about the legality of a state civil service employee running for the office of sheriff. On August 6, 1968, plaintiff Kaukl was advised by letter from the Attorney General that an employee in the Wisconsin classified civil service could run for public office without taking a leave of absence or resigning, as long as all campaigning and political activity were carried on outside working hours. On August 16, 1968, the Board met and adopted a resolution affirming the Department's "Policy". On August 29, 1968, plaintiff Kaukl was notified that, effective September 1, 1968, the Department was placing him on involuntary leave of absence, without pay, until November 6, 1968, or until his candidacy was otherwise terminated.

Thereupon, this action was instituted to declare unconstitutional § 16.30 and the Department's "Policy", and to enjoin their enforcement. On September 18, 1968, a temporary restraining order was entered restraining defendants from enforcing § 16.30 or the Department policy against plaintiff Kaukl by discharging him, by placing him on leave without pay, or by imposing any penalty or punishment on him solely for the reason that he was a candidate or continued to be a candidate for public office, so long as said candidacy did not interfere with the duties of his employment.

Plaintiffs have filed a motion for summary judgment on their first cause of action. Defendants have filed a motion to dismiss the action and a "motion for summary judgment on the pleadings".

Defendants' motion to dismiss, as amended, contains four parts. The first part seeks the dismissal of the action as to plaintiff WSEA on the ground that it cannot properly bring this action in its own behalf and in behalf of its members under Rule 23. Defendants contend that WSEA is not a member of the class which it seeks to represent; that the entire membership of WSEA does not constitute a proper "class" within the meaning of Rule 23; and that there has been no showing that any of the individual members of WSEA has any present interest in this controversy.

This segment of defendants' motion to dismiss appears to raise several issues: (1) the capacity of WSEA to bring this action; (2) the standing of WSEA to assert the rights of its individual members; (3) the ripeness of the issue which WSEA raises in behalf of its members; and (4) the propriety of raising this issue in a class action in which the class includes the entire membership of WSEA. These issues are not easily separable.

Rule 17(b) provides in pertinent part:

"(b) Capacity to Sue or Be Sued. * * * In all other cases capacity to sue or be sued shall be determined by the law of the state in which the district court is held, except (1) that a partnership or other unincorporated association, which has no such capacity by the law of such state, may sue or be sued

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