Zekas v. Baldwin, Civ. A. No. 70-C-115.
Citation | 334 F. Supp. 1158 |
Decision Date | 27 December 1971 |
Docket Number | Civ. A. No. 70-C-115. |
Parties | Joseph ZEKAS et al., Plaintiffs, v. Joseph BALDWIN et al., Defendants. |
Court | U.S. District Court — Eastern District of Wisconsin |
John S. Williamson, Jr., Milwaukee, Wis., for plaintiffs.
Robert G. Polasek, Asst. Corp. Counsel, Milwaukee, Wis., for defendants.
This is a § 1983 action challenging the suspension of a government employee and the regulations under which he was suspended. Jurisdiction is grounded upon 28 U.S.C. § 1343.
The individual plaintiff in this action, Joseph Zekas, was employed as a case worker by the Milwaukee County Department of Public Welfare on April 29, 1968. On February 13, 1970, administrative proceedings were commenced to permanently discharge Mr. Zekas from employment. Simultaneously he was suspended without pay. The cause for this suspension and attempt to discharge the plaintiff was his alleged violations of paragraphs (e), (f), and (k) of Section 4, Rule VII, of the Milwaukee County Civil Service Commission:
The conduct asserted to constitute the violations of these provisions is as follows:
Zekas subsequently filed this action to enjoin the suspension and administrative proceedings for discharge on the grounds (1) that paragraphs (e), (f), and (k) are unconstitutional on their face because of vagueness and over-breadth, and (2) that in any case the conduct alleged to constitute violation of those paragraphs is protected by the First and Fourteenth Amendments. On March 20, 1970, after the submission of written and oral arguments by both sides, I entered a temporary restraining order. Zekas v. Baldwin, 310 F.Supp. 575 (E.D.Wis.1970). Presently there is before me a motion for summary judgment brought by the plaintiffs. I find that it should be granted.
Plaintiffs' first avenue of attack is that the Civil Service regulations Zekas is charged with violating are vague and overbroad. The "vague and overbroad" test generally comes into play in two types of situations: (1) because the Fifth or Fourteenth Amendment due process requires a prior warning of culpable conduct in certain situations before a penalty may be imposed, and (2) because the First Amendment demands that protected conduct shall not be deterred by vague or overbroad attempts to prohibit unprotected conduct. I deal with the test only in the second setting.1
It is clear, in the Seventh Circuit at least, that (1) employment regulations may be attacked by employees as vague or overbroad deterrents of their First Amendment rights, and (2) that an attempt to discipline an employee under a vague or overbroad regulation must necessarily fail without regard to whether the specific conduct prompting the discipline is in fact protected by the First Amendment. Muller v. Conlisk, 429 F.2d 901 (7th Cir. 1970); Soglin v. Kauffman, 418 F.2d 163 (7th Cir. 1969).2 While perhaps employment regulations may not be required "to satisfy the same rigorous standards as criminal statutes," I think that the amorphous regulations which the individual plaintiff was charged with violating are both vague and overbroad under even a substantially less rigorous standard.3
I found in my earlier opinion in this matter that:
None of the challenged regulations are by their terms limited to "on the job" situations or are directed toward job performance. Rather, each is directed at controlling an employee's conduct both on and off duty.4 While there is no doubt that some conduct which would be a legitimate basis for discharge or discipline might be termed "wantonly offensive," "insubordinate," "disgraceful," or "unbecoming," it is equally as obvious that some conduct which is protected from employer interference by the First Amendment might also be so termed. For example, in Pickering...
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Thompson v. City of Minneapolis
...Arnett v. Kennedy, 416 U.S. at 142, 94 S.Ct. at 1638. 12 Appellant suggests that the pre-Arnett holding of Zekas v. Baldwin, 334 F.Supp. 1158 (E.D. Wis.1971) should guide us here. There, three provisions of a Milwaukee County Civil Service rule, one of which was phrased much like rule 12.02......
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Herzbrun v. Milwaukee County, s. 72-1625
...and before the decision in this case, the district court held the paragraph unconstitutionally vague and overbroad. Zekas v. Baldwin, 334 F.Supp. 1158 (E.D.Wis.1971). In Zekas, the predecessors of defendants were enjoined from using paragraph (k) against Zekas on account of his public state......
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State ex rel. Momon v. Milwaukee County Civil Service Commission
...warning. . . .'14 Civil Service Comm., City of Hamtramck v. Pitlock (1973), 44 MichApp. 410, 205 N.W.2d 293, 294, 295; Zekas v. Baldwin (E.D.Wis.1971), 334 F.Supp. 1158; Soglin v. Kauffman (7th Cir. 1969), 418 F.2d 163.15 In re Bithoney, 486 F.2d 319 (1st Cir. 1973).16 Avrech v. Secretary o......
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Herzbrun v. Milwaukee County, Civ. A. No. 70-C-601.
...Service Commission. I declared this rule unconstitutionally vague and overbroad in light of the First Amendment in Zekas v. Baldwin, 334 F.Supp. 1158 (E.D.Wis., 1971). Defendants' arguments at the hearing largely centered around the alleged unfairness and unworkability of the Soglin-Conlisk......