*1 8, 1971.] Bank. Oct. No. 29791. In [L.A. BOGACKI, Plaintiff Appellant,
LEONARD J. al., et COUNTY OF RIVERSIDE OF SUPERVISORS BOARD Defendants Respondents.
Counsel Geram for Plaintiff and
Tony Appellant. Brooks, Sullivan, Jr., Counsel, T. and L. County Tilden Ray County Deputy Counsel, for Defendants and Respondents.
Opinion to as referred SULLIVAN, J. (hereinafter J. Plaintiff LeonardBogacki to a writ of mandate sought from a judgment denying petitioner) appeals of the Board of and Director respondents Supervisors Department compel and to set aside his allegedly of Riverside Building Safety County to his former dismissal from reinstate him wrongful to county employment, and and reim- to restore him to all position, county rights employment for burse him lost compensation.
Prior to his dismissal of the County employee petitioner, permanent Riverside, held the in the county position building inspector depart- and director ment On June building safety. department (Director) to sent him a letter of termination which stated the following for dismissal: and “Insubordination to misconduct grounds your superiors of a nature that would reflect Petitioner adversely upon Department.” review, to the board of which concluded after that appealed county hearing stated not and that in the letter of termination “are sustained grounds However, basis there was not reasonable cause dismissal.” the board of for review, below, for reasons which shall did recommend not appear petition- er’s reinstatement to his former rather it recommended position; only he “be restored to for with the Peti- future eligibility employment” county. to his reinstate him board of supervisors then requested county tioner but that request him for lost compensation, reimburse former position writ of mandate followed. This action for a was denied. had Riverside County period petitioner’s employment
Throughout Code, Under 31100 et (See seq.) a civil Gov. § service adopted system. its county employment resolutions governing the terms of ordinances and heads, cer- of their subject served at the pleasure department employees in relevant Thus, Ordinance No. provided tain limited rights. appeal allowed or all pro- officer shall appoint necessary employees “Every part: demote remove any this ordinance and may for his department vided satisfactory cause without notice and of the department for himself, ordinance to the this requirements subject only provisions (Italics added.) of law.”1 440-805, Ordi-
Resolution No. which was to section of passed pursuant nance No. review of dismissal authorizing promulgation procedures the board set up probationary supervisors, separate procedures with em- permanent employees.2 provisions dealing, permanent when ployees general provided dismissing permanent employee portions procedures provided 1 Other relating Ordinance No. might only eligible appoint that officers the certified as employees persons those director; particular position might appoint personnel “deputies” that officers *5 among employees; employment signed by their an from employing that a written termination of director, giving personnel officer should the the of be filed with date termi therefor; a nation and the reason and that should auto termination matically appointment deputy. terminate as an in full: “Be by It Resolved provided Super 2 ResolutionNo. 440-805 the Board of Riverside, California, County regular visors the State of session assembled pursuant on March to subsection K 3 of of section Ordinance No. 440-776, adopted January following Resolution No. is rescinded and the is substituted therefor: “1. Probation Period “Every employee entering county by regular position service to a appointment the required period year service probation in the classified shall be serve a of one appointment. employee permanent from the date of An status who is promoted with probation he period position pro- shall serve a of 6 months the to which has been dating granting any moted the date leave promotion. from of such The of absence exceeding working days probation pay employee’s period without shall-cause the days the leave to be extended been number of calendar for which such of absence has granted. probation person entering The for a the service a period seasonal working employee days provided year shall be 240 shall not elapsed that one have original probationary provisions applying date the appointment. the The since regular employee category an seasonal identical to that promotion of in the for working days year. employees except period that the shall be 120 within a fulltime employees probation period Temporary are not considered have and do may permanent probationary employee separated A be the achieve status. from any during probation period privilege time or service at the without of review section, hearing. provisions rejected an Notwithstanding any employee of the of this during period position service to probation the the classified which he has may position promoted. be restored to the from which he was promoted been Such the head must direct a letter to the the cause department employee stating dismissal; for dismissed” within 14 file with “employee might days dismissal; the director a personnel written answer to the letter of that within 20 days after of the answer the review board should hold filing hearing wherein both the and the head “have the should employee privi- department to be facts”; heard and lege that within seven after present evidentiary days the review finding board “shall make a written as to hearing . . . whether or not employee was dismissed reasonable cause and shall also make a eligibility recommendation as to the the employee for future iemployment” with the that a of the should be trans- county; finding copy mandatory, restoration is not department but at the discretion of the head within the limits positions. of available authorized Hearing “2. Procedure permanent employee “A following privileges concerning shall have the his dis-
charge or dismissal: “(a) Dismissal, Notice dismissing permanent employee department head immediately shall employee specifically direct a letter to the stating the cause or causes for dismissal. The letter be shall delivered to employee personally if he is otherwise, present; letter shall be it shall be mailed to him at his last copy known address. A Director, promptly furnished to accompanied by the'Personnel a state- signed ment department original head that the employee, delivered to the him, address, or that it was giving mailed to date on which it was mailed copy This delivered. shall available upon request. to the Review Board “(b) Review The Review following Board. Board shall include the members: an department elective head appointed by Supervisors, the Board of appointive de- partment appointed head Board Supervisors, County Administrative Officer, Manager Association, General County Employees the Riverside a mem- County ber Employees of the Riverside appointed by Association the Board of Direc- Association, tors of the and the non-voting Personnel Director who shall abe member secretary and constitute a of the Review Board and shall keep its Three records. members shall quorum, necessary three affirmative votes shall be any action. “(c) may, Answer. dismissed days within 14 after calendar service mailing dismissal, on him or an answer in to him of the letter of file with the Personnel Director writing to the letter of dismissal. The Personnel Director shall forthwith said transmit letter and hearing. answer the Review Board for The Review Board *6 days filing shall within 20 calendar from the the hearing, answer commence the notify and parties shall the interested place hearing of the time and least days in calendar thereof. advance “(d) Hearing Upon and hearing, Decision. such replying both the employee and department the head whose privilege action is reviewed shall have the to be heard and present evidentiary hearing, facts. such At technical rules of evidence not apply. shall shall, Review days Board within hearing, 7 calendar after the make a written finding employee as to whether or not the was dismissed for cause reasonable and shall also make a employment eligibility recommendation as to the of the for future County with the copy finding Riverside. A of the written and recom- head, mendations of the Review Board shall department be transmitted to the the transmit, employee and the Personnel The Review immediately Board shall Director. filing findings, after its all of the records in the matter to the Personnel Director for filing. employee’s eligibility The Personnel Director shall restore the for employment appropriate in county classifications qualified of the service where if the Review Any Board so recommends. action or made decision hereunder shall be final and subject judicial to review.” director; head, to and the personnel mitted the the employee, department em- eligibility employee’s “shall restore that director personnel qualified service where county ployment appropriate in classifications recommends”; the review Review Board so that decision of and if added (Italics throughout.) should not be to board review. subject judicial reinstate or no to Resolution No. 440-805 the review board power gives recommend reinstatement of dismissed employee. that of mandate alleged for a writ petitioner
In his first amended petition at all times during his and diligently had work competently he performed and activ- to his relating membership He facts his also alleged employment. Association in an as the Construction Inspectors ities known organization devoted to (Association), allegedly California an organization Southern and skill and of building inspectors, competency improving professional was and building safety Director —alleging department therein— inimical to activities this and resented organization petitioner’s been manifest detailed several had made occasions on which this hostility and threats by complaints to petitioner’s job. outright of inci- to as follows a series generally then went on allege The petition with meeting At petitioner dents which led dismissal: petitioner’s increase of 1967 the Director May reluctantly granted step in petitioner so. At this the Director refused do meeting in pay, having initially work, but in his incompetent that charged unprofessional petitioner also “revealed his because of petitioner’s he continuing hostility petitioner [Association]”; “warned the Director then peti- continued activity months, tioner would six probation implying [he] have would to refrain from his activities and membership [petitioner] if were to avoid from' his work.” dismissal petitioner [Association] June of had diffi- 1967 number of contractors who learned petitioner’s culties with the several members of Director sent to signed prepared, board “a written statement that their supervisors indicating personal with had shown him to be a building experience petitioner highly competent .” (3) who his as such . . . duties conscientiously performed inspector of said statement contractors on behalf of learning petitioner, “[A]fter Director], his said statement as a and motivated utilizing pretext, [the active long for his standing hostility membership partici- petitioner [Association],” pation dismissed petitioner which, indicated,
means of the letter stated as termination we have *7 dismissal grounds for “Insubordination to and misconduct your superiors of a nature.that would reflect adversely Department.” upon board to the review and appeal finding
After recounting petitioner’s on to of that went body, petition allege peti- and recommendation tioner was not than the other qualified positions county departments and that the effect of the review 'board’s department building safety; recommendation on him the list for future placing, eligibility employment relief; rather than afforded him and that him no he has been reinstating neither nor offered employed since the decision of employment county the review board.
Finally, (1) petition alleged dismissal was in viola- petitioner’s tion of his to free and speech as the state and assembly guaranteed by federal Constitutions “in that he was discharged by because [the Director] and petitioner’s verbal membership activity, solicitation in a including lawful manner on his own time of in the . . . .” membership [Association] and cause, “arbitrary without and therefore in capricious just violation of the Constitution, Fourteenth Amendment U. S. in that it deprived petitioner law, without due his loss property namely of his position and the building it has created as inspector stigma to his professional in this field of competency endeavor in which he has been and skilled qualified for many years.”
An issued, alternative writ return, filed a and there was a respondents full trial on the merits.3 The decision of the trial court is reflected as fol- lows in the clerk’s “In minutes:4 this matter submitted, heretofore heard the Court finds that [plaintiff] has.not carried the burden of that his proving Assoc, was discharge ‘due to his activities in the Construction Inspector’s of Southern California. the alternative writ Accordingly, [Par.] of mandate discharged, for a application writ is denied and the peremptory peti- tion is dismissed. The Court withholds [Par.] any opinion concerning whether mandate would otherwise be available event in the of arbitrary discharge from county such issue not employment, been raised having . petition. . .”5 Petitioner from appeals judgment.
It is now well-settled that even a probationary public employee or one at the serving pleasure not be dis appointing authority may missed for the exercise of constitutional rights absent showing restraints which the would employing body impose those are rights justified (Bagley interest. v. Wash by compelling public ington Township Hospital Dist. 65 Cal.2d 503-505 Cal. 409]; 421 P.2d Rptr. v. Malcolm 65 Cal.2d Rosenfield 562-563 City P.2d Ball v. Council trial; petitioner 3 Six five respondents. witnesses testified for witnesses testified for appear trial does not transcript 4 The court’s announcement of the decision in the proceedings. of the oral findings plaintiff 5 In its formal the trial court listed as conclusion of law: “The proving has not carried burden that his due to his activities in Inspectors the Construction Association of Southern California.”
779 also, Civil Service 139]; Fort v. see 136,141 Cal.Rptr. [60 252 Cal.App.2d 385]; 625, P.2d 392 61 331 (1964) Cal.Rptr. Cal.2d Commission 468, 4 478, Cal.Rptr. fn. (1961) 257 Cal.App.2d Hollon v. Pierce cf. however, clear, text.) It is equally and accompanying 808] in fact dismissed he was burden of showing bears the such sought of restraints in defiance constitutional rights he exercised because 64 Cal.2d Dumke (Stanton v. agency, be placed employing of such 108].) the absence 380, 199, 411 P.2d 205-207 Cal.Rptr. Malcolm, supra, (See will intervene. courts showing v. Rosenfield 563-564.) Cal.2d that he was indicated, to show at trial sought As we have petitioner Association, court but the trial with the because of his activities dismissed Council, City supra, (Cf. Cal.App.2d Ball to the found contrary. in substantial 136.) contention that that lacked support Petitioner’s finding at trial that he testified without merit. The Director the evidence6 is clearly therein on activities the Association or to petitioner’s had no objection As time; in the encouraged own that he in fact participation his employe^ sociation; work for unsatisfactory per and that was dismissed petitioner formance. however, the record
Petitioner further that although may urges, not the that his Association activities were trial court’s finding support dismissal, was his of his it also shows that the dismissal triggered by cause of his free We are directed to exercise First Amendment speech. occurred sub of the trial record which indicate that the dismissal portions to, of, and as a result the testimonial letter sent local contractors sequent to members of the board of after discussed had supervisors petitioner with difficulties one of them. job
However, the that this the trial reveal pleadings theory transcript indicated, raised for the first time on As we have the contractors’ appeal. in letter and circumstances it were mentioned the petition surrounding for mandate—but As- only theory relating petitioner’s support sociation activities. Thus it was was used as a alleged “pre- letter Director, text” whose real for the dismissal was motivation petition- er’s Association activities. the trial contains no Similarly transcript sugges- 6 Although finding placed question among the court’s conclusions of law (see findings 5, ante), clearly finding formal fn. it was of ultimate fact and regarded. (See Linberg bewill so v. Stanto Cal. P. 555]; Department Rees Cal.App.3d A.L.R. Motor Vehicles Egg Petersen v. Cloverdale Cal.App.2d Farms P.2d
tion that in any based his claimed to reinstatement petitioner way upon right the infringement of his First to discuss his Amendment right (See 8, infra.) difficulties with others. fn. No were made as to any findings causal between dismissal and the letter relationship contractors’ petitioner’s Moreover, or the events which it.7 did to not precipitated petitioner object or findings on the issue he now raise. specific seeks to request findings rule that a not be general legal raised for the first theory may time on be is to when appeal the new stringently applied theory depends on controverted factual whose relevance thereto questions was not made to (Panopulos at trial. appear Maderis 47 Cal.2d 340-341 738].) P.2d Here there was an admoni testimony concerning tion by Director to that discuss petitioner he not his with difficulties job others, and there was also which related in testimony way very general petitioner’s letter, conversation with one of the contractors which led to the but petitioner at no time prior to relate this attempted evidence appeal to a contention such as that he now advances.8 As a result respondents made no effort to the factual areas develop In these circum question. stances not may now raise petitioner that his theory dismissal resulted from the exercise of his to free right speech.
Petitioner that we should exercise our urges under section 909 of power 956a) the Code of Civil Procedure9 make a fact § (formerly finding findings, through allegations 7 The incorporation court’s of the selective petition, the only determine “after” the dismissal occurred Director learned of findings attempt impeach by contractors’ Petitioner’s the formal letter. refer suggesting ence to relationship tentative remarks of the court certain trial causal (Baldwin-Lima-Hamilton Corp. Superior must fail. Cal.App.2d Court 798].) argument he raised the oral prior 8 Petitioner asserts that contention at to submis However, argument sion of the apparently case to the court. reported part point. and is not a of the record before We do not us. therefore consider this (See Van Cise v. Lencioni 106 Cal.App.2d 349-350 P.2d by jury provides: 9 Section 909 “In all cases where is not a trial matter of waived, findings by jury reviewing may or where trial has been court make findings may fact contrary to those trial court. to or in addition made Such based on the adduced before the court either with or without evidence trial taking reviewing reviewing may court purpose evidence court. The for the making findings justice, any purpose such fact or for in the interests of other concerning occurring any prior take additional evidence or facts time may give entry any appeal, judgment decision of or order or direct the may be may require. or shall make such further other order as the case This section feasible, that, among may be liberally the end where causes construed to others single trial finally disposed appeal proceedings further in the and without required except justice interests trial is on some all court in the a new where of the issues.” letter and of the contractors’ the effect that he was dismissed because it to say which it. Suffice conversation with the contractor preceded such this a case decline to exercise our under section 909 power we *10 at trial and for find facts of a not raised presented to supportive theory on first time appeal. dismissal his was in violation
Petitioner that finally arbitrary, urges law, in not to county deprived and violation of his constitutional are without due of law. interrelated contentions Two “property” under made this by petitioner heading. the review that law invests county is contended impliedly it
First dismissal, with cause for board, that was no reasonable there finding upon contention is refuted clearly to reinstatement. This recommend power 440-805, set which we have forth 2(d) of Resolution No. subdivision by itself, is set ante, which forth footnote as well Ordinance No. in as by 1, ante. Read together, relevant in the text footnote in part accompanying may that a these law county clearly provide county employee provisions for be dismissed from his without notice and cause satisfactory position board, head, if, it his but that the review is deter department appeal dismissal, that no cause the review board mined there was reasonable for make a be restored to may recommendation that the binding employee eligibility employment. The review provisions give applicable for future board in no to reinstate the absolutely power employee position he was brief, which an absolute dismissed. head is department given dismissal, power with limited in review board to restore power dismissed for county future eligibility employment. his that seeks to erect con
It is this foundation upon petitioner we it the is that absolute argument As understand argument. stitutional forbidden dismissal to public employees power pertaining and insofar as it a dismissal that is “arbitrary capricious permits cause”; is “arbi without that a dismissal such just and pursuant power cause” it is shown substan and and without unless trary just capricious dismissal; in was reason that the record tial evidence that there a valid fails that there was a valid reason this case to show substantial evidence dismissal; trial dis finding that the court’s petitioner’s petitioner’s cause” was there just was not and and without “arbitrary missal capricious was therefore in violation of fore that the dismissal unsupported;10 constitutional rights. petitioner’s allegation petition petitioner’s 10 The trial dis court found untrue the cause, just and therefore violation capricious
missal “was and without of the Fourteenth Amendment . . . .” a whole fails to establish correctly Petitioner out record as points reason for dismissal for his dismissal. two any Although grounds specific (insubordination were the Director in letter of termination assigned by con- conduct neither finds upon reflecting adversely department), Thus, crete the Director testified in that he support record. general insubordination,11 work with but the trial poor court equated performance found that specifically his work at all petitioner performed competently times. There no adduced conduct evidence as to ad- specific reflecting versely upon department. remains, however, whether the record question the fact that fails to
establish a cause specific for dismissal is to this pertinent proceeding. is that a
The em major premise argument public petitioner’s under the terms of his he serves at the though even employment ployee, not be without of the dismissed authority, may judici pleasure appointing is cause. On its face this to num good ally cognizable proposition contrary which hold such an may erous authorities that be terminated employee Council, (See City and Ball v. without cause without notice hearing. true, supra, cited.) and It is cases there Cal.App.2d course, that rule which authorities has been these announce qualified above, discussed that a that of principle, public employment—even or one at the of the probationary serving employee pleasure appointing not be conditioned a constitutional authority—may upon waiver of rights interest, absent a showing and that dismissal for the public compelling exercise of such absent rights interest is requisite in showing (See violation of Bagley Washington Township v. guarantees. Dist., Council, 499;
Hospital supra, City supra, 65 Cal.2d Ball v. 252 Cal. 136, 141, cited, However, and ante.) other cases it App.2d is an quite other thing to assert—as does—that when a dismissed em even petitioner ployee at the of the serving fails to show that pleasure authority appointing his dismissal resulted from the exercise of a constitutional he right, never theless has the to be to appoint reinstated unless the employment ing authority able to demonstrate cause for judicially cognizable good This would dismissal. be tantamount that a cannot saying public agency employ at its subject removal if persons pleasure, judicially cognizable cause is good to removal in all requisite cases there can be no sub wholly jective in power removal the agency.12 11 The specifically Director denied he petitioner’s considered conversation with
the contractor which resulted the contractors’ in letter án instance of insubordination. 12 The record in this case is illustrative. primary Director testified that his unsatisfactory inspection reason for dismissal incompetent was peti work court, however, tioner. The trial petitioner’s competent during found that work California, it Such is not law in nor has ever been. A public employee he serving pleasure authority—whether “per appointing case, non-civil-service this “provi manent” employee county Malcolm, (see in a v. sional” civil service county Rosenfield 559), supra, 65 Cal.2d other kind of on serving or any public employee without this the terms of his to removal subject basis—is employment re cause. broad discretion judicially cognizable good “Unquestionably, which poses governmental agencies they determine employees [such] will retain. Considerations of administrative counsel comity efficiency the courts to refrain from their to substitute own any attempt judgment Malcolm, (Rosenfield supra, officials.” 65 Cal. responsible 559, 562-563.) 2d when such a show can that his Only public employee has been conditioned the waiver of his con unjustifiably stitutional (See will the courts intervene relief. Stanton rights give Dumke, 205-207.) supra, Cal.2d Commission, certain broad in Fort v. Civil
Despite Service language supra, Pierce, 61 Cal.2d supra, and Hollon v. 257 Cal.App.2d 468, 478, those decisions are in no what have we said way contrary today. *12 In Fort the petitioner showed that clearly dismissal resulted from his viola tion of a section of the charter which county his constitu impinged upon tional to right engage In Rollon the sub political was activity! employee to ject removal for cause. only
In the case instant vested vari system county ous heads the to dismiss department their without notice employees power and for cause to the head. A review satisfactory particular department pro cedure was also but that if provided, only procedure contemplated dismissal were considered board that could unjustified review by body recommend that the dismissed for made future employee eligible county of a head remove from his employment. power to department particular deemed department unsuitable him was within employee absolute the terms Petitioner, law. applicable county dismissed from being par ticular board, but restored to department the review eligibility by sought ofwrit mandate reinstatement on the that he ordering was dismissed theory because of the exercise of his constitutional to freedom of association. The trial court found on the basis of substantial evidence that that was not period cognizable employment. judicially good his If requisite cause were to could, dismissal, petitioner therefore claim reinstatement on the basis finding, trial accept employee court’s the Director would be as an required one incompetent he personally solely disagreed whom with him considered because the trial court point. Clearly, power on that “for Director’s remove cause satis- factory to himself” have become would chimerical. must of petitioner head’s dismissal of dismissal. The department
the cause stand. therefore is affirmed.
The judgment J., Burke, J., concurred. McComb, J., Mosk, J., C. Wright, TOBRINER, J. I dissent. as a years
After six working inspector County building Riverside, Leonard was dismissed from his Bogacki petitioner status on the ostensible “insubordination.” ground supervisor, that his was his termi- Contending unjustified, discharge Bogacki appealed review, nation to the board of an administrative established county body resolution review the or dismissal of all by county specifically held After on circumstances employees. hearing permanent dismissal, the that the stated review board concluded Bogacki’s grounds there for dismissal were not the facts and that was no rea- supported cause sonable for dismissal. petitioner’s board, however, “success” is re-
Petitioner’s before the review now for read Pyrrhic governing vealed as a totally victory, relief resolution the board no effective granting authority provide for an the review dismissal. Under the improper majority’s interpretation, board declare future only county may eligible employment, petitioner which he was restore him to may improperly position list, however, futile removed. Placement an eligibility reality who re- Bogacki because the dismissed gesture petitioner, supervisor *13 of same mains the sole him The offering person capable reemployment. led to Bogacki’s which unsupported—perhaps capricious—considerations with dismissal are chances for likely reemployment thus foreclose be- granted The which county hearing perpetuity. petitioner a meaningless fore the review board is thus reduced to largely procedure, dis- and is no factual basis for although there petitioner’s apparently he is former charge, denied reinstatement to his position. of a public employee sanction this dismissal permanent facts on the
without a and on unsubstantiated meaningful hearing totally . . . “may basis of a ordinance which that a county provides supervisor notice cause remove of the without and any employee department himself, satisfactory of this ordinance to the subject only provisions in the requirements (Italics added.) majority’s law.” Evidently, of view, summary of law” no limits on “requirements place dismissal an a of official. employee
785 however, withdrawal in a case also century ago, Nearly involving United States government, opportunity occupational Court terms that federal Constitu unambiguous declared in Supreme not . . . leave room for the action of purely tion play per “do[es] be . sonal . . idea one man very may and arbitrary power. [T]he . . . to the enjoyment hold material essential any compelled life, another, country mere to be in any will seems intolerable (Yick Hopkins (1886) where v. 118 U.S. freedom . . .” Wo prevails. 356, 6 370 L.Ed. S.Ct. And on numerous occasions [30 over is settled decade this court itself has reiterated past “[I]t em that a cannot or removed from public barred person properly ployment arbitrarily (e.g., his constitutional disregard rights” 331, Fort v. 61 Cal.2d 334 (1964) Civil Service Commission Cal.Rptr. [38 625, 385]). 392 P.2d
Moreover, a host of recent decisions of both United States Supreme Court and this court establish the constitutional necessity providing at least the minimal procedural safeguard of a meaningful hearing variety circumstances in which government action causes significantly less than harm the loss of Family (Sniadach Finance job. permanent Corp. (1969) 337, 349, 395 U.S. 352, 339 L.Ed.2d S.Ct. 1820] Bell (wage garnishment); v. Burson U.S. 535 license); of driver’s Blair v. (suspension 1586] Pitchess ante, p. 486 P.2d Cal.Rptr. 1242] (replevin personal prop ; ante, Appellate Randone v. erty) Department (1971) Cal.Rptr. (attachment 488 P.2d To read the 13] property).) clause as requiring hearing when the meaningful sanctions government ante, (see of a repossession refrigerator Blair v. Pitchess (1971) supra, 258, 279), but pp. not when the dismisses a permanent tois foster a set peculiar of constitutional far re priorities moved from the realities of the day. And this interpretation particularly anomalous in light that California courts have special protection traditionally afforded individuals when their employment opportunities have (See, been curtailed. Cason Glass Bottle Blowers Assn. e.g., 37 Cal.2d P.2d 21 A.L.R.2d Pinsker v. Pacific Coast Soc. Orthodontists Cal.3d *14 P.2d Society Kronen Coast (1965) 237 Orthodontists Pacific Cal.App.2d The instant case thus two issues of substantial constitutional presents significance in the field of which the in majority, my public employment view, resolve The initial is the due incorrectly. whether process question clause limits any on the of a to dis- places authority government employer the
miss an the conclude that Constitution arbitrarily; majority not, does and in so the due clause’s basic claim undermines holding process a and not of men. The second to guarantee question laws a is the due clause public employee whether process protects permanent due loss without the minimal procedural the the answers in meaningful again, a hearing; process of contrary in of a trend constitutional negative, spite rapidly burgeoning precedent. decisions which irrationally to “reaffirm” constitutional choosing early due
carved field out of the reach of the process of public employment to clause—cases founded discredited “right-privilege” approach upon the major developments adjudication—the majority ignore decades. more decisions over the two As explained due process past below, I the relevant constitutional considera- fully light believe that tions, Riverside Resolution No. 440-805 must construed County like the review board petitioner, to reinstate permit permanent employee, finds, merits, who on the have been discharged the board after a hearing arbitrarily. government, as retains considerable Although employer,
1. public employees, the determining whether to discretion in dismiss authority permanent limits to dismiss governmental clause arbitrarily. employees in relevant officer “Every ordinance No. 440
County provides part . . . . . without notice . remove may any employee department himself, cause to the only satisfactory subject provisions this ordinance law.” initial which we requirements question law,” the due address whether is “requirements specifically 13; Const., I, clause art. (Cal. of our state and federal Constitutions § Const., XIV), limits on the government’s Amend. any power places arbitrarily. fully As the majority discharge permanent public employee ante, 781), on Mr. recognize Bogacki’s record (majority present opn., al- unfounded grounds; dismissal to have been based on totally appears of “insubordina- though his justified grounds supervisor discharge tion,” and both review board charge factually found that unsupported Bogacki fully the review board and court concluded that the trial for from which he was dismissed. competent position Thus, evidentiary we that can claim no have before us discharge record; such terminology, traditional legal under support present only “Action is “arbitrary.” unquestionably
787
record,
when
is
but also if it lacks
it
in the
capricious,
adequate support
when the facts do not
(Hollon
conclusion.”
v. Pierce
justify
(1967)
468,
808]; see,
257
478
Thompson Cal.App.2d
e.g.,
[64
City
(1960)
654,
Louisville
624];
362 U.S.
L.Ed.2d
80
199
S.Ct.
[4
Schware v. Board
(1957)
Bar Examiners
Although Constitution limits purportedly recognize government’s discharge a power “unconsti- reason,” tutional they no constitutional perceive to the impediment totally arbitrary exercise of this Under the governmental authority. majority’s of a analysis, placement continued public employee’s under the “absolute" and “unfettered” discretion of a government supervisor, where dismissal even at the mere “whim” of the supervisor unchallenge- able is entirely with constitutional strictures. compatible
The due stands, however, clause of process the Constitution as a fundamental to the challenge conclusion. majority’s Historically, primary of the “due clause was to purpose circumscribe the process” government’s to utilize power its authority arbitrarily. early As the United 1819 States Court Supreme acknowledged clause was “intended to secure the individual from the exercise of the arbitrary power (Bank government” Columbia Okely (1819) (4 17 U.S. Wheat.) 235, 559, 244 561]) L.Ed. [4 numerous despite changes in the court’s our nation’s composition judicial throughout philosophy history, Supreme Court has maintained that “there is consistently no in our constitutional place for the system exercise of arbitrary power. . (Garfield . .” v. United States ex Goldsby (1908) 249, rel. 211 U.S. 262 168, 175, L.Ed. 627].)1 Cardozo, [53 29 S.Ct. Justice for a unani writing mous court in Telephone Ohio Bell Co. v. Public Utilities Com. 292,
301 U.S. 1093, 1100, 724], L.Ed. 59 S.Ct. characterized the essence of due as “the protection against individual action.”
The majority do not the fundamental challenge proposition clause, “due process” where arbitrary governmental applicable, precludes action; in that “an absolute finding power dismissal” (majority opn., 1 See,e.g., Hopkins (1886) 356, 220, 226, Yick Wo v. 118 U.S. L.Ed. 1064]; Virginia 114, 623, 626, S.Ct. Dent v. West L.Ed. 231]; (1913 431, 9 S.Ct. 433, ICC v. ) Louisville & Nash. RR 227 U.S. L.Ed. 185]; Meyer S.Ct. v. Nebraska 262 U.S. 399-400 L.Ed. 1045-1046, 43 S.Ct. Nebbia v. New York 291 U.S. L.Ed. Berger, generally See Administrative Arbitrariness: Synthesis (1969) A 78 Yale L.J. 980-984.
788
ante, italics)) is with 781 in a official (original compatible government however, deter- the have constitutional necessarily requirements, majority silentio, mined, “due clause not applicable albeit sub process” no reason the the Although majority suggest of employees. public all as from distinguished this why protection, constitutional particular withheld em- other from rights, public constitutional may totally a re- view their conclusion as simply the majority apparently ployees, however, view, a In my statement of settled constitutional principles. that constitutional decisions reveals the of the careful review applicable eroded substantially the has been “settled relied on by principle” decades. over two past of clause the doctrine that
Historically, protections emerged to the discharge employees are not public applicable a mere which the status of series cases viewed line of This “right.” of constitutional rather than matter “privilege” cases,2 in Justice Holmes’ renowned epigram 3**epitomized McAuliffe 517],3 216, Mayor (1892) v. 220 N.E. New Mass. Bedford had to demand “right” reasoned that since an individual no him, was one that employee” status government “public employ and one which “grace,” been had as matter granted by could, be withdrawn limitations, absence accordingly of statutory the ma which “at the of cases on It is this series pleasure” state. conclusion rests. jority’s inescapably however, past years have been adjudication,
devoted
small
in no
part
disavowing
“right-
discrediting
(See
mode of
these
privilege”
decision-making
earlier cases.
adopted by
Van
The Demise
generally
Alstyne,
Right-Privilege
Distinction
decisions,
Constitutional Law
1439.)
81 Harv.L.Rev.
The modern
affords no
recognizing
distinction
“right-privilege”
reality
conclusion,
but
have uni-
persuasive reasoning
legal
embodies
simply
formula,
this
formly discarded
talismanic
that con-
have recognized
stitutional
general
action,
constitute a
limit
provisions
governmental
on.
whether that action involves
or a
the withdrawal of “government largess”
2 E.g., Barsky
Regents (1954)
442,
v. Board
347 U.S.
L.Ed.
S.Ct.
Adler
Board
Education
342 U.S.
L.Ed.
492 472]; Bailey
A.L.R.2d
Richardson
182 F.2d
App.D.C.
affd.
equally
divided
L.Ed.
court
U.S. 918 [95
1352,
The of majority, are not oblivious to this line of obviously cases; the initial of their the force portion opinion recognizes specifically these of decisions in to limiting government’s authority discharge as the exercising right, constitutional such specific right of free however, fail speech. discrediting recognize, the entire to constitutional “privilege” adjudication approach establishing of restrictions to all of applicability forms governmental this activity, series of decisions also into developing brings the due play process clause’s substantive against protection “arbitrary" governmental (See O’Neill, action. Delayed Justice and Justice generally Denied, 161, 1970 203-207.) Rev. Sup.Ct.
Thus,
although
to be
majority apparently purport
merely reaffirming
settled law
by ratifying
“wholly
subjective” governmental authority
discharge
overlook a
both
employees, they
number
decisions in
United States Supreme
court,
Court and in this
back
20
nearly
reaching
which,
years,
cases,
after
rejecting
early
“right-privilege” analysis
have explicitly recognized that
clause
proscribes
exclusions and dismissals5 from
service.
public
4 See,
1586,
e.g.,
90,
(1971)
Bell v. Burson
78 S.Ct.
of a tax
Dixon v. Alabama State
1332]
150,
193,
(5th
1961)
cation
294 F.2d
cert. den.
Wieman cases series of initial decision sequence. this represents 215] Wieman, of states to dismiss had affirmed the the court prior govern to advocate the overthrow the who been found had employees means, refused relating who to answer inquiries ment unlawful fitness and to their suitability relevant may “matters that prove Education 342 U.S. Board (Adler service.” Angeles Garner v. Los A.L.R.2d L.Ed. *18 Wieman, 909].) U.S. L.Ed. In Board [95 for however, the state by merely had been dismissed public him to oath to swear sign present to which refusing loyalty required front the or in Communist nonmembership any in Communist Party past from all members excluded such organization; automatically the state service, anti-government knew of the of whether they regardless public activity. their in such or had actually partaken activity organization the that its to condition argued right employment state Although public on followed its over authority employees such conditions from broad ****6 decisions,* the court its earlier which the had in recognized seemingly con Wieman court as first the cases carefully involving distinguished prior to ditions on which had some rational relation employee’s service, fitness for that an mere mem then concluded public employee’s in an fitness had no such to his for organization relevance bership public be “innocent” because could as employment, reasonably membership (344 as 222].) at declared: U.S. L.Ed. at The court “guilty.” p. 191 p. “Indiscriminate fall classification innocent with must activity knowing as an arbitrary (Italics assertion of The oath offends due process,” power. added.) (344 222].) U.S. L.Ed. at p. at p.
In the Wieman that the due concluding, court made its holding clause clear prohibits entirely restriction of public employment (exclusion)). Cal.2d 61 under- principles Thus the 761] P.2d lying Moreover, all of the decisions here. even if a distinction were applicable are involving surely discharge, to be drawn discharges, employment, between exclusions added of a “vested” would least factor interest in be entitled at protection employment. much below cannot as an exclusion Thus the cases to be discussed from distinguished validly solely because several from the instant matter employment. them arose the context of exclusion heavily 6 The state relied Adler on court’s declaration in v. Board Education 342 U.S. L.Ed. 72 S.Ct. 27 A.L.R.2d right assemble, “It is our persons speak, clear . . . have the under law to they right equally they think and believe as will. It have no is clear that [Citation.] Adler, System to work ever, State in the on own Even in how School their terms.” qualified by explaining: “They may the court this latter statement work for the upon system school proper reasonable terms laid down authorities in New (Italics added.) (Id.) York.” The dogma. of the “right-privilege” to the “logic” explicitly responding abstract whether an stated, consider need not “We court pause protection that constitutional to say exists. It is sufficient public employment a statute whose exclusion servant pursuant extend to the does added.) (344 U.S. pp. (Italics arbitrary or discriminatory.” patently L.Ed. at 191-192 dismissal exclusion or pub- the arbitrary on limitation Wieman, enunciated first which fully emerged
lic employees, Education Board Slochower v. terms in explicit equally Slochower, had a teacher who L.Ed. 76 S.Ct. 637]. posed to answer several questions Fifth Amendment grounds refused on aat committee, from his position was dismissed a federal Congressional statute which basis of a New York provided state college self- utilized the against who privilege dismissal of any employee automatic chal- The teacher incrimination to avoid governmental answering inquiries. *19 distinct grounds: the of his dismissal on two lenged constitutionality a United States law and as that the abridged immunities” “privileges citizen, Amendment the exercise of his Fifth since on imposed penalty it the mere due . . . because the law “violates rights, process not a reason- claim of under the Fifth Amendment does privilege provide (350 at able basis for the to terminate his U.S. p. State employment.” 698-699].) L.Ed. at did not reach Court explicitly pp. Supreme the the first the alleged statute’s question—concerning privi- impairment on holding self-incrimination—but instead rested its lege against directly its conclusion that dismissal of in the circumstances “summary appellant the case (Id.) violates due of law." Thus Slochower is beyond process a “due decision. peradventure strictly process” the limited very its analysis by recognizing
The Slochower court began declared, formulation; “To the court afforded the aid “right-privilege” em- does not have a constitutional right government state that a person reasonable, lawful with that he must only say comply ployment (Id.) authorities.” down terms laid non-discriminatory proper added.) “public employee” The court then reviewed the series (Italics “em- these decisions had and found that all of cases discussed Wieman State must con- an or dismissing excluding employee] phasized [in at L.Ed. (350 due U.S. form to p. requirements process.” constitu- 699].) under long-established at to due p. Conformity process, or dismissal exclusion government’s tional precedent, required i.e., that the reason or basis not be arbitrary, a particular employee the em- connection to decision must have some rational government v. Los An- (Garner “fitness and for the service.” ployee’s suitability geles Board L.Ed. U.S. this traditional standard of
Using “non-arbitrary,” “rationality” as its the Slochower court concluded that the dismissal of the guide, bar, in the teacher case at on the basis of “events before solely occurring federal committee whose was announced as not directed at ‘the inquiry affairs, or . or . . official conduct of government city, property, ” city bore no reasonable fitness employees,’ the teacher’s relationship reasoned, and thus was violative of due The court process. “Since no inference of from the claim be- guilt possible privilege] [of committee, fore the wholly federal falls of its own weight without support. There has not been ‘protection the individual against arbitrary action’ which Mr. Justice as the Cardozo characterized very essence due process. Telephone Ohio Bell Co. v. Commission (Italics added.) U.S. 302.” (350 L.Ed. at 700-701].) pp.
Indeed, did take with the gen- even the dissenters in Slochower issue eral constitutional that due principle prohibits which the ma- discharging arbitrary grounds, principle dissent, Harlan, in the instant case decline to Justice jority writing accept. relevant most “Does such a statute bear posed question succinctly: reasonable relation to New York’s interest insuring qualifications He, dissenters, its teachers?” the other found the statute nonviolative *20 due after that a teacher’s refusal to answer official only concluding could inquiries bear his fitness for em- said to reasonably upon public ployment. clause
This
general
pre-
precept—that
dismissal or exclusion of
cludes
arbitrary
public employees—recognized
Wieman and Slochower
a decade
has been
articulated
over
ago,
explicitly
City
Angeles
our own state
Wilson v.
Los
courts as well.
applied
The relying recognized which the case the constitutional in majority principle present opinion (cid:127) would that “The which deny. unambiguously right apparently Declaring is, seeks to here—that public petitioner employment preserve that such is available and that she meets all reason- providing protection against deprivation able entitled to at least requirements—is by arbitrary (italics added) (54 63), means” Cal.2d at the court p. thereof viewed the determinative it before as “whether the commission question in acted an manner in arbitrary discriminatory disqualifying peti- (54 64.) tioner.” Cal.2d at This is the same which the p. precisely question Thus, assert cannot be raised the instant case. simply framing it, the issue before the Wilson decision demonstrates the error of the major- ity approach. course, final additional its
The Wilson case guidance, provides that the board’s resolution of the “arbitrariness” issue. In determining city (54 Cal.2d at “arbitrary” exclusion of Wilson from service p. public 66), court that the refusal to sign loyalty this emphasized applicant’s past oath bore no relation fitness for to her reemployment: “[Disquali- present at an then fication earlier date for failure to swear to oath required, has no more on her than would her failure to bearing present qualification (54 meet abandoned.” Cal.2d at educational since prior requirements 65.) that, doubt leaves no concluding overturning paragraph decision, board’s the court relied on the constitutional squarely proscription exclusion from We stated: “It is manifest public employment. subscribe, refusal to for reasons of relevancy petitioner’s conscience, earlier, to a different oath eleven and her years time, office at that too her of consideration at remote deprive *21 . . this time . . the the relied on disqualify petitioner upon ground [T]o arbitrary commission must be and unwar- as regarded therefore (Italics added.) (54 66.)7 ranted.” Cal.2d at p. Wieman, Wilson,
The
Slochower
of
and
as well as the
general teaching
case,
significant
Wilson
particularly
7 The
decision is
the instant
dis
since the
Wilson,
here,
explicit
missal in
as the
was not
an
but
dismissal
mandated
statute
grounded
authority.
was
acted
supervisory
the discretion of the
The court
statutory
single
provision,
simply
Wilson not to invalidate an entire
but
to declare a
employee’s
arbitrary.
provides
as
direct
exclusion unconstitutional
Wilson therefore
precedent
case at bar.
petitioner
for the relief
seeks
decisions,8 is
cases
these
following
numerous
prohibi-
dis-
to the
arbitrary
government’s
tion
action is
governmental
applicable
of a
would
missal or exclusion
Although
employee.
these
based
dismiss
cases as
discharges
simply involving
apparently
exercise
a
constitutional
such as the Fifth
employee’s
specific
right,
self-incrimination,
Amendment
a close
privilege against
reading
decisions
such a limited
Wieman
refutes
In neither
nor
interpretation.
Wilson did the court intimate that the dismissal was
it
because
improper
a
constitutional
instead the courts invalidated the
specific
right;
impaired
state action as
as
no rational
to the
relation
“arbitrary,”
having
employee’s
Slochower,
fitness for work.9 And in
it is
even clearer that the deci-
perhaps
sion rested
on “due
solely
and not on the
grounds
process”
impairment
since,
above,
another constitutional
as noted
both issues were raised
right,
before the
Court and
court
found it
Supreme
expressly
unnecessary
determine if the state action
the teacher’s Fifth
improperly impaired
rights.10
Amendment
8 See,e.g.,
Higginbotham (1971)
Connell v.
285, 292, 275]; (1958) 82 S.Ct. Beilan v. Board Education 357 U.S. 1317]; (1956) Board v. Education Mass County Hofberg Angeles Cal.2d 494 P.2d Los Civil Service Com mission 258 Cal.App.2d Cal.Rptr. 437 [65 759]. 9 In Wieman the court made a no reference to teacher’s constitutional freedom of association, opinion and the proceeds as if the right existence a constitutional of such completely Wilson, were irrelevant to the court’s decision. rely only right, the court not did not on the existence aof constitutional but obviously it determined the it assumption issue before on the that no such noted, was Wilson employee’s involved. As earlier had been expressly dismissal (Hirschman against judicial affirmed a prior constitutional attack decision County Angeles (1952) 287]) Los 39 Cal.2d 698 P.2d the Wilson court absolutely suggestion offered these no that the earlier conclusion had been mistaken. Under circumstances, question there strictly can be no but is that Wilson “due process” decision. 10 In v. Pierce Cal.App.2d Hollon the court similarly recognized discharge, process” “due limit on independent of “specific" right. a more existence of In Hollon a school bus driver discharged tract, after it appeared religious was discovered his name on a passages burning several of which murdering alluded to the school houses Although tract, of school children. not written Hollon had he admitted to believ work, ing board, philosophy advanced hearing, in the and the after a school con curred in the dismissal. brought reinstatement, attacking Hollon suit for upon based dismissal “constitutionally inquiry religious beliefs," falsity forbidden the truth or into of his (257 476-477) pp. Cal.App.2d arbitrary. initially rejecting After dismissal, rights contention that First Amendment continued to review the evidence been were at stake in the the court to insure the school board’s decision had not not stated, arbitrariness, arbitrary. court point “The focal of review here (257 478.) religious Cal.App.2d ultimately upheld discrimination.” *22 at The court dismissal, employee’s finding ample the be there evidence that Hollon “cannot (257 478.) safety p. passengers.” Cal.App.2d trusted with the of his devel- constitutional Thus, the general the majority recognize although doctrine, the the demise of the heralding “right-privilege” opment the emergence that this demise has been accompanied fail to recognize decisions, than the single rather of two strains of constitutional separate of cases the The first cases—exemplified line majority identify. group have exclusions which decisions reviewed—involve dismissals or the just bore no for the action been overturned because reason government instances, at all. In these the government’s rational relation to “job-fitness” found to be a denial of due because it was “arbitrary”; action was of an Slochower reveals that in such a case the existence clearly independent As constitutional is not essential to the constitutional determination. Justice Harlan’s dissent Slochower consti- in the determinative recognizes, state’s tutional in these cases is whether the for the grounds question simply action “bear a in reasonable relation interest insuring [the state’s] (Slochower (1956) of its v. Board Education qualification [employees.]” 551, 692, 704, (Harlan, 350 U.S. dissent- L.Ed. J. [100 637] decisions, Under these the due clause ing).) prohibits or exclusion of dismissal public employees by government. cases, fine of decisions recognized by
The second category
dis
for exclusion or
which the
situations in
encompasses
grounds
majority,
concern for
missal,
to a
government
pub
while
related
rationally
legitimate
entail the
of specific
lic
and hence not “arbitrary,”
impairment
(1964)
Commission
61 Cal.2d
In Fort v. Civil Service
constitutional right.
625,
the con
we addressed
392 P.2d
Cal.Rptr.
example,
of a statute which authorized the dismissal of public employees
stitutionality
we
in
recognized
in
broad
activities. As
engaging
range
political
Fort, does
regulation
political activity
employees frequently
a harmonious
bear at least a rational relation to the
interest in
government’s
338;
Public
(61
Cal.2d at
United
service
cf.
non-corrupt public
75,101
Workers v.
Mitchell
330 U.S.
L.Ed.
67 S.Ct.
556]). Nevertheless,
af
in
of the constitutional
generally
light
protection
forded
the First
citizen’s
Amendment
safeguarding
participation
activities,
we
to show more than
political
required
for dismissal bore a “rational relation” to a
state
grounds
legitimate
purpose
(61
in order to
Cal.
such a limitation on
constitutional
justify
rights.
specific
337; see,
City Carmel-By-the-Sea Young (1970)
2Cal.3d
e.g.,
2d at p.
259,
An
Vogel County
263-265
Los
466 P.2d
Cal.Rptr.
961].)11
geles
Cal.2d
434 P.2d
v. Tucker
11 Shelton
Bagley’s constitutional standard is
more
than the
quite obviously
stringent
“due process” standard which both the
and dissenters
in
applied
Wilson;
Slochower or which
indeed,
in Wieman and
governed
the “rational
standard which
relationship”
criterion,
constitutes the sole “due
process”
only
first criterion which a dismissal or exclusion based on an employ-
ee’s
exercise
a
constitutional
specific
must
satisfy.12
justification. In Shelton a
school
refusing
teacher
dismissed for
comply
public
with a
requiring
state statute
public employees
organizations they
to list all the
had
belonged
the past
years. Although
to in
five
recognized
the court
that disclosure
was at
rationally
legitimate
least
related
government objectives
to two
(avoiding
conflicts of interest and detecting time-consuming commitments),
the court also de-
termined
requirement
inevitably discourage
would
political
controversial
associations
provision’s
teachers. In view of the
potential chilling effect on the
First Amendment freedom
speech,
of association and
and the less restrictive means
open
closure
objective,
to the state to achieve its
the court invalidated this “rational” dis-
requirement.
Pickering
discharged
sending
school teacher was
paper
letter to the local
criticizing the
handling
Board
past
of Education’s
revenue bond elections. The
acknowledged
court
legitimate
has regulating
interest in
its
employees’ public
circumstances;
criticism
superiors
of their
analyzing
under some
in
dismissal, however,
the propriety of the
the court did not confine its examination to
Instead,
whether there was a “rational” basis for the action.
the court viewed the
involving
teacher,
resolution of the issue as
“a balance between the interests of the
citizen,
commenting
as. a
in
upon
public
matters of
concern and the interest of the
State,
employer,
promoting
efficiency
(391
as an
service”
[its]
U.S. at
817]).
p.
public
Although
the court found that several of the teacher’s
false,
that,
balance,
statements were
it nevertheless concluded
on
the dismissal
justified.
not
constitutionally
could
12 The dual constitutional standards which we have
“public
identified in the
em
ployment” cases finds a
parallel
marked
currently employed
the two-level test
legislative
reviewing
protection
equal protection
classifications under the
equal
clause. In the
stringent
standard,
situations,
area the less
applicable
in most
requires only
challenged
that distinctions drawn
statute “bear some rational
relationship
legitimate
(Westbrook Mihaly
to a
state purpose”
conceivable
487]);
2 Cal.3d
precisely
471 P.2d
this is
the same
decisions,
standard of
imposed
“nonarbitrariness”
the above
process”
“due
applicable
standard I believe to be
in the instant case.
standard,
hand,
equal protection
Under
“strict”
other
“the state bears
compelling
burden of establishing
only
that it has a
justifies
interest which
*24
has obscured
of decisions
the latter class
sum,
focus on
the majority’s
pro-
constitutional
earlier,
precedents
fundamental
of the
more
its vision
stem
this confusion may
part
dismissals. Although
scribing “arbitrary”
Wie-
to
decision
Court
subsequent
some
dicta in a
contrary
Supreme
Slachower,13
cited Slochower
as
man and
June 1971
as
as
the court
recently
thus,
believe, the
I
case14 and
in a
controlling
precedent
public
necessary
pur
its
are
to further
that
drawn
the law
the law but
pose.”
the distinctions
255,
100,
473 P.2d
(In
Cal.Rptr.
110-111
Cal.3d
re Antazo
Inn,
ante,
see,
e.g.,
Kirby
pp.
Sail’er
Inc. v.
analogous
therein.)
quite
to the
is
and
This strict standard
P.2d
cases cited
529]
impair
Bagley
governmental dismissals which
analysis
to test
established in Fort and
Indeed,
identical
rights.
almost the
specific
language
spoke
the Fort court
constitutionál
test,
that it has
equal protection
requiring the state to “show
of the current
(61
337),
limiting
rights”
at
‘compelling’
p.
Cal.2d
and
a
interest in
[constitutional]
(Id.)
additionally
specificity.”
that the restriction is “drawn with narrow
congruence
simply
is not
a co-
these two areas
The
of constitutional standards in
course,
incidence,
appraisal
a
of the exercise of
but has resulted from consistent
government
courts have
government authority
general, when
vis-a-vis individual
interests. In
interest,
constitutionally
activity
impair
specific
protected
not
the
does
grants
Legislature
recognized
to the
executive considerable
that the Constitution
act,
legitimate
leeway
When
long
rationally
any
state interest.
so
as the action is
related
rights,
government activity
impair specific
constitutional
how-
threatens
ever,
greater
justification.
equal protection
bears a
burden of
Both the
state
much
however,
recognize,
due
decisions
that the Constitution demands
action,
legislative
origin,
arbitrary.
whether
or executive in
McElroy (1961)
13 In
L.Ed.2d
81 S.Ct.
Workers v.
U.S. 886 [6
Cafeteria
1743],
decision,
early “privilege”
majority
a 5-4
relied on several of the
cases
government employment, in
and declared that: “It has become a settled
principle
legislation,
(367
appointing
the absence of
U.S.
ever,
can be revoked at the will of the
officer.”
itself,
p.
at
p.
L.Ed.2d at
The
Workers decision
how
Cafeteria
authority
commanding
involved
officer to
which civilians
determine
establishment;
stated,
permitted
military
specifically
were
that
“In
enter his
court
traditionally
proprietary military capacity,
Federal Government
. . . has
(Id.)
public
exercised
employee,
case did not
unfettered control.”
involve the
clearly
public employment
and thus the court’s reference to
dicta.
Moreover,
subsequent
opinion,
of the
Workers
in a
section
Cafeteria
dicta,
previous
decision in
drew back from its
broad
conceded that the court’s
Updegraff
governments,
state and federal
Wieman v.
did “demonstrate . .
. that the
constitutionally
operations,
even in the exercise of their internal
complete
do not
have
(367
enjoyed by
employer.”
pp.
action
at
897-
private
freedom of
U.S.
1238].) Thereafter,
p.
employee’s
at
court
a public
898
dismissal would
L.Ed.2d
assumed
.that
grounds
be invalid
the announced
exclusion had been
“if
for [his]
(id.)
arbitrary
assumption
patently
discriminatory,”
and the dissenters viewed this
recognition
majority of a
“not to be arbi-
as a
substantive
(367
(Brennan,
trarily injured by
p.
at
Government.”
L.Ed.2d
1239]
J., dissenting).)
Finally,
activity
Supreme
procedural
the recent
Court in the
area,
below,
validity
discussed
raises serious doubts as to the
to be
continued
(See
Regents (W.D.
closely divided
Workers
also Roth v. Board
decision.
Cafeteria
976-979.)
1970)
F.Supp.
Wis.
Higginbotham
Connell v.
Indeed, over the decade California courts have past recognized explicitly the dual nature of constitutional limitations this area. In Fort Civil *25 Service (1964) Commission 331, 625, 61 Cal.2d 334 P. 392 Cal.Rptr. 2d we declared that is settled that a be cannot person “[I]t properly barred or removed arbitrarily or in disregard public employment of constitutional rights” and-that statement constitutional governing rule has been reiterated in a continually (Bagley host of decisions. v. subsequent Washington Township Hospital (1966) 499, Dist. 65 Cal.2d 507 Cal. 401, 409]; 421 P.2d Rptr. berg County v. Angeles Los Civil Service Hof Commission (1968) 433, 759]; 258 Hollon Cal.App.2d 437 [65 Cal.Rptr. v. Pierce (1967) 468, 257 808]; v. 478 Belshaw Cal.App.2d Cal.Rptr. City Berkeley (1966) 493, 246 496 cf. Cal.App.2d Cal.Rptr. 727]; Purdy Fitzpatrick & v. State (1969) 566, 71 Cal.2d 579 [79 of California 77, 456 P.2d 645].) In the existence of a condoning sub “wholly jective power of removal” in the case, government the instant the majority would apparently dismiss our dis repeated “arbitrary” proscription in the charges Wieman, above cases as inconsequential surplusage; Slochower and decisions, however, Wilson stand in direct to the opposition majority’s narrow rendition of the governing principle.
In allowing public a domain employees purely arbitrary authority, also undermine much majority of the that protection practical they purport to afford to exercise of employees’ specific constitutional rights. The expanse of an “absolute” and “unfettered” discretion to dismiss can be utilized easily uncojnstitutional to cloak a based on clearly (see grounds Cafe teria Workers v. McElroy (1961) 886, 1230, 367 U.S. 901 L.Ed.2d 1239, 81 (Brennan, S.Ct. Note, J. 1743] Arbitrary Teacher dissenting); Dismissals (1969) 44 836, 841-842) and, N.Y.U.L.Rev. as the instant case reveals, an faces a most difficult if task he must establish the forces that motivated “actually” who is supervisor to dismiss permitted him or no any reason at all. In such a case it appears essential particularly supervisor to come required forth with at least some rational basis to dismissal, support not be allowed to hide behind a simply “wholly subjective” Roth decision-making authority. (See v. Board of Regents (W.D.Wis. 1970) 310 F. 981-982.) Supp.
Moreover, in view of the judiciary’s historical
recognition
im-
hearing
without
inquiry required by
or
process.
due
Slochower v. Board
Education,
(1956).” (See
(1971)
U.S. 551
also Bell v. Burson
U.S.
of
[29
1586, 1589].)
L.Ed.2d
S.Ct.
it seems
individuals’ employment opportunities,
protecting
portance
an enclave
should seek
particularly
preserve
perplexing
action, in a case
indeed arbitrary, government
“totally subjective,”
Governmental regulation
the loss of
employment.
involving
permanent
has
been circumscribed
traditionally
employment opportunities
private
of constitutional
including
full
protections,
panoply
Thus,
been established
it has
state action.
long
prohibition
or
licenses
credentials
issuing
revoking
occupational
professional
and therefore cannot
authority
no
subjective”
has
“wholly
Utilities Com.
Telephone Co.
Public
(See,
Ohio Bell
arbitrarily.
act
e.g.,
724];
v. Committee
Willner
L.Ed.
1175]; Schware
L.Ed.2d
83 S.Ct.
on Character
Although its own dismissing employees frequently been distinguished from its on the former grounds licensing activity act, exercise of a use only while latter involves the “proprietary” (see, of state in a “governmental” or authority “regulatory” e.g., capacity 886, 1230, Workers v. 367 McElroy (1961) U.S. 896 L.Ed.2d [6 Cafeteria 1236, 1743]), 81 Van S.Ct. Professor has Alstyne recently emphasized: State, “. . . the Amendment does not that ‘no say except [Fourteenth] rather, when in a it acting shall deny process; proprietary capacity,’ makes no distinction at all state in which the acts.” respecting capacity (Van Right-Privilege The Demise Distinction in Constitu- Alstyne, 1439, 1461.) tional Law (1968) 81 Harv.L.Rev. decisions, the govern
Recent constitutional restraints imposing upon ment’s conduct of such activities as removal of tenant “proprietary” City Authority v. (see Housing Escalera New York housing from public 91, 1970) 861, (2d 853, Cir. 425 cert. U.S. L.Ed.2d F.2d den. 400 853 [27 54]; (E.D.La. New Housing Authority v. Orleans 91 S.Ct. Ruffin 251; 1969) 301 Fuller 315 v. Urstadt 28 N.Y.2d F.Supp. [321 601, 321]; Authority Thorpe Housing N.Y.S.2d 270 N.E.2d cf. v. 394, 1244]),
Furthermore, decision, the majority’s a governmental preserving pre rogative is even arbitrary discharge, more anomalous when viewed in of this light court’s numerous decisions carefully restricting bodies, exercise private such authority by as labor unions profes associations, sional in situations in which the action has a private significant on an individual’s livelihood. In James v. impact Marinship Corp. (1944) 25 Cal.2d P.2d 160 A.L.R. and Dotson v. Intl. 900] Alliance Employes (1949) etc. Cal.2d 362 P.2d example, we held that a labor which organization maintained a closed shop, thus had effective control of the availability for an specific individual, could not “arbitrarily” exclude applicants membership. *27 “Where a union has . . . attained a of labor monopoly supply union, by means of closed . . . such a shop agreements quasi- a occupies practice 15 The applying process” cases,” “due principles “licensing in the but “public employment” has matters also been defended reference to the produced relative harm respective Thus, governmental actions. state action in revoking a license or closing credential is sometimes seen as an entire “field of employment,” discharge while a public from employment is viewed simply as single job. however, loss Initially, of a approach this oversimplistic, is because in practice many positions public employment counterparts do not have in the job market; private case, in the instant example, unlikely for it seems that there will petitioner’s much call housing inspector for work as a private from enterprise. Second, even public employee’s if a occupation theoretically does light exist private in the sector, a public employment, from the current situ ation, will inevitably almost result prolonged in serious and unemployment. In the circumstances, present hardship job differential between the loss of a and the closing of a field of employment largely hypothetical. Third, infra, important, and most Supreme as discussed recent Court decisions operation have not confined the process “injuries" the due clause to individual as Instead, severe as the curtailment of entire profession occupation. an or the cases have indicated that due whenever play comes into a injury, at much lower threshold of “important” (Bell (1971) 90, v. Burson 402 535 [29 91 S.Ct. 1586, 1589]) (Randone ante, Appellate Department (1971) or “substantial" v. 536, 709, at p. Cal.Rptr. 13]) affected; 552 P.2d of an interests individual are below, explained as under the job recent decisions the a permanent clearly loss of sufficiently important constitutes interest warrant due protection. public certain position similar to that of service business it has same It no claim the freedom from obligations. may corresponding longer or associations. asserted legal enjoyed restraint clubs fraternal Its by golf relations; its does not relate to right to choose own members social merely (James Marinship it affects the fundamental to work for a living.” right 721, 329, 900], Corp. (1944) 25 Cal.2d P.2d 160 A.L.R. italics 731 [155 James “an added.) arbitrarily court concluded closed or closed partially (italics added) (id.; with a closed see also union is incompatible shop” Employees v. Intl. (1958) Thorman Alliance etc. Cal.2d Cason v. Bottle P.2d Glass Blowers Assn. Cal.2d 134 America, 6]). And in Directors Guild Inc. v. Court Superior P.2d 64 Cal.2d 53-54 P.2d we Cal.Rptr. expanded this and held that “the . . . ruling grounds for condemnation of rejection to the situation in which the membership forcefully apply union does not have a union contract as to that in which it does.” shop (Italics added.) we have cases
Similarly, these union recently applied principles associations, trade and rejections expulsions and have professional determined that whenever in such would have associations membership livelihood, economic and significant professional bearing applicant’s “an has enforceable to have judicially applicant membership considered in a manner with the fundamentals application comporting showing of due including rejection.” (Italics added.) cause process, (Pinsker Coast Soc. Orthodontists 1 Cal.3d Pacific 495]; see Society 460 P.2d Kronen v. Coast Cal.Rptr. Pacific Orthodontists Cal.App.2d illustrates, unions other business in James clearly
As reasoning our to a of “non-arbitrari- associations are held strict standard and professional have been found to the basis of positions they ness” on the “quasi-public” *28 case, the the instant now It is indeed ironic that in apply majority occupy. all, no to the own standard, public’s standard at less indeed demanding treatment of its employees. constitutional limitation fail to that a recognize
Finally, not, and should dismissals need or “arbitrary” properly “capricious” to discretion not, officials the considerable required withdraw public The an fitness for his job. majority quite determine individual employee’s which of a constitutional balk the establishment reasonably principle instance reason- the first believe would courts in judge they require have our courts discharge; arbitrariness of every governmental ableness or task an The undertaking. for such the resources nor neither expertise em- for continued of and standards generating appropriate qualifications ployment to the individual entities quite properly belongs governmental in and it charge is consonant with particular employment entirely that such bodies be a broad principles delegated discretion within has, which to exercise their A broad discretion expertise.16 similarly course, of been granted administrative with many agencies charged business and regulating professional licensing. I
Although agree we must a “broad discretion” recognize residing or employing agencies it supervisory does not follow that we personnel, must this discretion be similarly acknowledge “absolute” or “unfettered” or that it be may abused at will without (Cf. for review. any opportunity Jaffe, Judicial Control of 586-587.) Administrative Action pp. limited, sure, To be role in this judicial field must be a appropriately one, confined to insuring themselves agencies establish rational recognize, course, 16 We of evaluating continuing that in employment relationship range considered, a wide may properly of factors be and that some of the reluctance require standards for dismissals stems from a fear that preclude such standards will legitimate, criteria, the employee subjective, use of but more “compatibility" such as the employer. employment, Government private employment, encom passes range however, an working enormous relationships, and the reasonableness specific of turns on all judged abstract, criteria for dismissal unavoidably cannot be in the but particular (See employment position. circumstances of a generally Note, Employees—the Dismissal Emerging Federal Judicial Role 719.) Colum.L.Rev. many In undoubtedly areas it is working true that the relationship superior between close, employee necessarily one, and, or even intimate under such circum- stances, simple incompatibility personalities ideologies may or perfectly well be a reasonable, officer non-arbitrary, ground and therefore for The relationship dismissal. of an corporation agency or secretary his confidential clerk is perhaps or paradigm example relationship. of such a Every government position does not involve the same kind working of close re- however, lationship, between and thus in personalities other situations a viewpoints clash of may and a employer not afford a reasonable ground discharge. reversing public of a school teacher for education, statements critical of employer-board Pickering his v. Board Edu- cation example, directed towards 569-570 Supreme the United States Court noted that way statements are “[t]he in no any person applicant normally with whom would be in contact in daily the course ment work as a teacher" and then concluded: “Appellant’s employ- relationships working with the Board . are not . . the kind of close relation- ships necessary p. persuasively it can for which claimed that personal loyalty and confidence are proper functioning.” (See to their also at p. id. fn. L.Ed.2d at light establishment of rational standards for of the characteris- is, job course, particular tics of a properly province within employing of en- *29 tity which is familiar with the creating most duties involved. This task of standards to the positions sensitive working demands of necessity individual has become a familiar in a largely environment upon bargaining agreements founded collective and civil provisions service preclude arbitrary discharge which the employees; process due govern public demands that reasonable criteria employment all decisions as well. Davis, (See 58.) Discretionary Justice such they guidelines continued standards for apply 1970) Regents (See (W.D.Wis. Roth Board in a fashion. non-arbitrary Nevertheless, 972, 979.) when the does discharge 310 F.Supp. discretion, I believe this broad an abusing “arbitrarily,” thereby employee conferred be relief. discretion is the to afford “Where courts must open decision, be decision must officer render a this an administrative upon bad rendered, rendered in and if it is or or honestly capricious faith, the and set it aside.” have the to review decision then courts power Ct.Cl. (Crocker v. United States F. Supp. record, be viewed as On the can Bogacki only the dismissal of present have found him for his fully job, Two tribunals arbitrary. competent review, the board of the local with the agency charged responsibility county concluded that there no reasonable discharges, ground reviewing a for his I that a exercise While believe discharge. employer may public I broad discretion standards for continued establishing employment, cannot the understand of that “discretion” necessitates why preservation of an without whatever. the factual basis justifies discharge any employee above, I the of an government’s As discussed conclude that discharge on what “no is grounds” incompatible employee presently appears strictures; alone, with reason entitled to due for this is petitioner process reinstatement. interpreted by majority, county’s discharge procedure the
2. As by authorizing a dis- procedural process, embodies denial due permanent employee meaningful hearing. a without a charge of whether second raised principal question majority opinion a denial of due suffers permanent procedural public employee course, case, when without he is In this discharged meaningful hearing. resolution, which was afforded to a local at petitioner hearing, pursuant both evidence he and his to the discharge. supervisor presented relating however, Under while eviden- this review majority opinion, procedure, all be termed a on fair in cannot tially respects, “meaningful” hearing discharge, because reso- conclude that the county petitioner’s board remedy discharge lution the review no authority gives improper former in his As by reinstating position. interpreted not a the “discharge” this review thus is on majority, procedure hearing all, future an individual’s eligibility but is simply hearing employment. view are the terms resolution concededly ambiguous,
Although which I are conclude applicable requirements procedural I believe provi- employees, permanent government’s *30 804 be board the
sion must
the review
to order
reinstate-
interpreted
permit
of an
The
ment
dismissed
majority’s contrary
employee.
improperly
denies that a
is entitled
implicitly
interpretation
permanent public employee
when
terminates his
any meaningful hearing
employment.
earlier United States
Court decisions indicate
Although
Supreme
support
I do not believe such a
for such
conclusion can
reconciled
position,17
with recent constitutional decisions in the
due
field.
procedural
process
cases,
two
have witnessed an
of
years
past
unusually heavy flurry
court,
United
in this
both the
States
Court and
Supreme
issue
presenting
of
of
due
to a
of
broad
applicability
procedural
process
range
govern
action. In Sniadach v. Family
Corp. (1969)
mental
Finance
Our following has teachings notice and recently recognized necessity affording when the hearing such, state authorizes repossession prejudgment personal goods, sets, ante, (Blair “television v. refrigerators, stoves” Pitchess [or] 1242]) P.2d Cal.Rptr. p. attachment prejudgment (Randone ante, of all kinds of Appellate Department v. property. 488 P.2d light importance individual’s when interest in continued compared especially employment, cases, involved it the interests in these seems incredible proceeding can now maintain that the minimal requirement meaningful is not when the terminates hearing government permanently applicable (See F.2d Ricucci United States employment. Roth v. (Skelton, 1256-1257 Ct.Cl. J. cf. Board concurring); 1] (W.D.Wis. 972, 981.) Regents Colleges 1970) State 310 F.Supp. 17 See,e.g., McElroy Workers Cafeteria 13, supra. discussed at footnote *31 Sniadach in with the court’s the instant case analysis The of comparison hardships Sniadach court the great In revealing. emphasized is most of the with- a and his as a result family befall earner wage would frequently concluded, “Where and then a of his earnings, holding significant portion obvious, no to con- is so it needs extended argument taking property notice and this hearing clude that absent a prejudgment prior [citation] of due violates the fundamental process.” garnishment principles procedure case, (395 354].) In the instant U.S. at L.Ed.2d at petitioner p. p. has only been but of his entire-liveli- wages, deprived portion hood; the thus in Sniadach are here. emphasized hardships clearly multiplied Moreover, statute, even under the invalidated Wisconsin Snia- the debtor in dach was assured of some the merits before he was hearing permanently case, deprived contrast, of his in earnings; the instant under the major- ity’s view will never receive on the valid- petitioner any meaningful hearing ity his dismissal. in procedural of recent light of majority’s
The full anomaly position decision, Bell v. most due is illustrated recent process developments Bell, an In L.Ed.2d 91 S.Ct. Burson U.S. 535 1586]. notice or hear- driver’s license was without uninsured motorist’s suspended acci- statute, the motorist in an to a after was involved ing, pursuant Georgia Court damages; dent and failed to for claimed in Supreme security post authorized the sus- summary motorist which challenged provision Brennan, on due Justice of his license pension grounds. writing process court,18 reasoned the state could refuse to issue unanimous that although issued, licenses to all are in motorists licenses as petition- “[o]nce uninsured case, possession may pursuit er’s their continued become essential in the Suspension livelihood. issued licenses thus involves state action adjudicates are important interests the licensees. In such cases the licenses not to be procedural process taken without that due the Four- required Amendment. Goldberg.]” (402 teenth Sniadach and U.S. at [Citing p. L.Ed.2d at due invali- p. the court process Applying principles,
dated the statute challenged in of its summary light operation. aof in the incongruity due Bell analysis decisively points up process due the instant
decision the applicability procedural denying affecting case. Bell the of a driver’s license recognized suspension safe- bring of sufficient procedural interest importance licenses become essential “may into because such guards play, precisely 94].) In at (402 of a livelihood.” pursuit p. Burger, with simply 18 Chief Justice Justice Black and Justice Blackmun concurred writing separate opinion; the result Bell without there were no dissenters. interest, instant case we deal not with an incidental the denial of which livelihood, affect one’s may detrimentally but with the question *32 actual termination of the “livelihood” itself. Given Bell the instant matter must be the surely a paradigmatic fortiori case. avoid the force of these recent decisions by falling cannot a which
back on claim that is merely may “privilege” public employment decisions, Goldberg and Bell be withdrawn Of the recent both summarily. involved the termination of interests which could be characterized as “gov- ernment and of due were largess,” yet procedural process requirements case; indeed, held Bell in each the court applicable emphasized specifically that its of the due motorist’s constitutional recognition procedural an of his license “is but of the process suspension gen- upon application eral that relevant constitutional state proposition restraints limit power terminate an entitlement whether the entitlement is denominated a or ‘right’ ” (402 a U.S. at 539 L.Ed.2d at ‘privilege.’ p. p. [29
Moreover, over the
decade lower federal and state courts have re
past
recognized the
peatedly
of
notice and a
affording
necessity
meaningful hearing when the state withdraws
“benefits”
governmental
of
(see,
a student
a
expulsion
suspension19
from
university
e.g.,
150,
(5th
1961)
Dixon v. Alabama State Board Education
Cir.
F.2d
294
of
cert.
193,
den. 368 U.S.
368];
930 L.Ed.2d
Goldberg Regents
82 S.Ct.
[7
the University
867,
248
Cal.
Cal.App.2d
of California
463];
31,
cf. Jones v. Tennessee State Bd.
Ed. (1970)
Rptr.
397 U.S.
27, 28-30,
32-36
Brennan,
L.Ed.2d
dis
JJ.
(Douglas
779]
senting from dismissal of writ as
or the eviction
granted),
improvidently
tenant from
(See,
City
Escalera
York
public housing.
v. New
Hous
e.g.,
ing Authority (2d
1970)
Cir.
425 F.2d
cert. den.
Bell establishes protections (402 interests” “adjudicates important cable whenever values, an individual’s 94]). On scale any L.Ed.2d at p. interest,” an certainly maintaining “important interest for a mean- the minimal due safeguard opportunity thus *33 be must afforded. ingful hearing a dis course, due that the government grant
Of does process require dismissal, he be but a trial on only formal employee charged Constitu fair “Whether the afforded a under all circumstances. hearing tion that a obtain in a right depends proceeding requires particular specific involved, the of The nature right factors. complexity alleged upon are of the on that nature and the burden possible proceeding, proceeding, (Hannah taken v. Larche all considerations which must be into account.” 420, 1502]; (1960) 363 U.S. L.Ed.2d 80 S.Ct. see [4 247, Sokol v. Public Utilities Commission Cal. (1965) 65 Cal.2d 254 [53 673, 265].) 418 P.2d Rptr.
Indeed, case, in the instant most of the traditional administrative objec- tions to the additional in- are expense personnel required hearings since has a full applicable, established county already hearing procedure, before an impartial to review the or dismissal of all body, perma- nent earlier, As noted this employees. does not a “mean- procedure provide ingful because the hearing" only the resolution to majority interpret preclude board review from effective relief. affording
In
of the
above,
canvassed
light
considerations
I believe
Resolution No. 440-805 must be
interpreted
review
county
permit
board to order the reinstatement of
finds has been
any
it
improp-
erly
no
discharged.
of the resolution authorizes
Although
specific language
20 This conclusion finds
support
further
in the
decisions
numerous
discussed
section,
require
procedures,
including
hearing,
earlier
which
due process
meaningful
to be afforded when
professional
business or
be
licenses are to
revoked or when
professional
(See,
unions or
expel
seek to
e.g.,
associations
a member.
v.
Willner
(1963)
224,
1175];
Committee on Character
this
have
to a
consti
hearing
courts
where
frequently
implied
v. Mc
would
Greene
(See,
otherwise
created.
problems
e.g.,
tutional
474,
1396-1397,
Elroy (1959) 360 U.S.
506-508
1400]; Fascination,
Inc. v. Hoover
Cal.2d
269-270
Brotsky
P.2d
cf.
v. State Bar
Cal.
4. Conclusion the due analyzing discharges aspects public employ- ment, I have found it convenient to approach problem terms two distinct categories (the “substantive due of arbi- process” prohibition trary action) state however, “procedural This process.” separation, should not obscure the nature these two due complementary concepts. however,
The majority, have not made the error of affording only single *34 of the “prong” due process case, in the instant but rather have taken concept the drastic approach denying of both. As applicability explained above, is, conclusion majority’s in the final analysis, grounded that the strictures premise “due clause are not process” applicable in any manner to the government’s of a permanent employee. view my this limited opinion of the reach clause is largely remnant the discredited doctrine and is “right-privilege” entirely with incompatible developments recent analysis in years. United States Court Supreme Justice Robert Jackson once declared: “To stand between the individual and action is the highest function the court.”21 decision, the instant majority, by default in that task.
Peters, J., concurred. Knauff, accompanying stay 21 Statement issued as Jus deportation Circuit May Byse, tice Second quoted Circuit Gellhorn & C. Admin W. (4th 1960) p. istrative Law: Case & 814. Comment ed.