*1 PROBATION OFFICER CHIEF ACTING CABELL, COUNTY, ANGELES et LOS al. OF CHAVEZ-SALIDO et al. January 12, 1981 Decided Argued November
No. 80-990. *2 Court, J., J., opinion of the which C. BURGER, delivered the White, JJ., joined. Blackmun, J., and Rehnquist, O’Connor, and Powell, and Brennan, Marshall, Stevens, dissenting opinion, which filed a post, JJ., joined, p. 447. F.
William Stewart for the cause With argued appellants. H. was John Larson. him on the briefs Mary Burdick S. the cause for With argued appellees. was Dan Stormer.* her on the brief the of the delivered Court. opinion Justice White case we once consider a again citizenship require- fill on those certain by seeking gov- ment imposed 1031(a) offices. California Code Ann. ernmental Gov’t (West 1980) officers or declared “public employees requires law to be officers” to be citizens the United peace (West Supp. §830.5 States. California Penal Code Ann. 1981) officers and provides probation deputy probation officers are officers.” A District Court “peace three-judge require- Central District of California held the California ment unconstitutional both on its face and as applied Offi- who Probation appellees, sought positions Deputy cers. 490 F. 984.
*Robert Newman filed a brief for Service Employees International Union, as amicus curiae urging Local affirmance. Schey, Okrand, A. for Mаry Gillespie Peter Fred K. filed a brief curiae. as amicus
League of United Latin American Citizens I filed, was law- the complaint time at the were,
Appellees Ange- Los living aliens resident permanent admitted fully unsuccessfully positions applied Each Cal.1 County, les Los Angeles County with Officers Probation as Deputy of the three to two respect With Department.2 Probation to obtain the that the failure stipulated the parties appellees, statutory citizenship the result was sought positions requirement.3 States District the United complaint filed a
Appellees challenging District of California for the Central under citizenship requirement constitutionality Amendment of the Fourteenth Protection Clause Equal were Named as defendants §§1981 U. S. C. *3 in capacity, their official officials, county individual certain Los Angeles.4 and the of County Chavez-Salido, a citizen. subsequently became appellees,
1 Oneof the job the he however, longer any openings for time, there were no By that noncitizenship. Appel- grounds on the of his previously been denied had lawfully were all lees, they applied positions question, the time for the consider, intimate no Therefore, and we do not present, resident aliens. di may place upon state action about, any opinion limits the Constitution Federal Gov permission of the at aliens who are here without the rected who, here, the legally if are not residents of State. ernment or pro deputy statute, responsibilities of the California the kinds of Under are con and both probation the officers bation officers are same as those 1981). (West Supp. § “peace sidered officers.” Cal. Penal Code Ann. 830-5 in discuss opinion, therefore, simply “probation officers” This will refer to ing positions the at issue. appeal a appellee, he failed Bohorquez, The third claimed that without disqualified him, test score that been informed because he had suit, Bohorquez citizenship appeal in this an would be useless. As relief sought only opportunity an to take a new examination. jurisdiction Although the the individual defendants did not contest waived court, appellees county complaint, federal In the did. their complaint was any against county § 1983—the claim under 42 U. C.S.
Appellees
unconstitutional
alleged
discrimination against
aliens,
their
impermissible
upon
constitutional
infringement
and unconstitutional
right
travel,
interference with Con-
aliens.
gress’ plenary
regulate
They sоught de-
relief,
as well
claratory
fees
injunctive
attorney’s
A
damages
plaintiffs.
two
court
three-judge
was
(1970
§§2281
S.
convened.
28 U.
C.
properly
ed.), 2284.5
District
1977, the
February
concluded that
statutory citizenship
was
requirement
unconstitutional both
Cabell,
Chavez-Salido v.
on its
face and as
applied.
427 F.
158. That decision rested
on
entirely
appellees’ argu
ments under the
it
Equal
Clause;
Protection
did not reach the
to travel and federal
right
claims.
pre-emption
This Court
vacated and remanded
judgment
for further consider
Connelie,
Foley
ation
435 U.
light
S. 291 (1978),
which
a New York
upheld
statute
state
requiring
troopers to
be United States citizens. County
Los
v. Cha
Angeles
vez-Salido,
which are eligible aliens who school teachers secondary and to naturalization. but fail seek citizenship States United its prior court found views dissenting, Judge With Curtis to therefore, came the identi- It, convincing. still valid and con- statutory scheme was that the California cal conclusion and applied. facially invalid both stitutionally (1981), 978 S. jurisdiction, noted probable We reverse. now
II
times
Court has
considered
many
years,
Over
g.,
e. Ambach
See,
with aliens.
dealing
state classifications
supra; Nyquist
Mauclet,
432 U. S.
Norwich,
1
(1977);
v.
v.
Examining
Foley
supra;
Board
Flores de
Connelie,
v.
v.
Griffiths,
In re
Otero,
413
(1976);
U. S. 717
426
572
U. S.
Dougall,
Sugarman
Graham
(1973);
v.
In Yick Wo held both the Court resident Protec- Equal aliens fall within the protection tion Clause of the that the Fourteenth Amendment and could not a “harmless deny aliens the on right carry Yick Wo useful occupation” Although available to citizens. proclaimed that not a permissible was hostility toward aliens
437 ground discriminatory classification, for a it dealt with a actively government which had intervened situation sphere private employment. In a series of of later cases it mean that became clear that Yick Wo did not the State had to strictly be neutral as between aliens citizens: The Court uphold right continued to of the State to withhold from public public aliens resources. benefits Tеrrace v. (1923) land); Thompson, (ownership U. S. of Heim v. supra (employment public projects); McCall, on works (1914) Pennsylvania, (taking v. Patsone U. S. game). wild government public
This distinction between distribution private clearly resources and intervention market was principle by regulations as established state which supra, aliens were to be evaluated in Truax Raich, which requiring employers struck down state statute all of more (80) employ eighty per than five workers to “not less than qualified cent or electors native born citizens of the United States:” pertain
“The discrimination defined the act does not regulation public or distribution domain, property people of the common or resources of the enjoyment may State, the of which be to its limited citi- against zens both aliens and citizens of other States.” at Id., 39-40. public/private “special public
This distinction, interest” supra, see doctrine, Graham v. 372, 374; Richardson, Su garman Dougall, supra, challenged was supra, Takahashi v. Fish & Game held that Comm’n, which lawfully California could not bar obtain resident aliens from ing fishing commercial licenses:
“To whatever extent the belt off fish in the three-mile ‘capable ownership’ by California California, ‘ownership’ inadequate justify we think thаt Califor- excluding any nia in or all residents aliens who are lawful *6 living by fishing making in the a ocean State from of the permitting do Id., all others to so.” shores while off its 421. at analysis governing of state classifications principle
As the the distinction was further residents, who are lawful aliens, supra, which Richardson, read in Graham eroded continuing validity “casting] on the doubt Takahashi as public-interest special contexts,” S., in 403 U. doctrine all distinguish not between a could and held that State at lawfully in and citizens distribution wel- aliens resident holding lawfully Returning Yick Wo’s that to fare benefits. protection Equal present Protec- fall aliens within theory citing of a the more recent two-tiered and tion Clause scrutiny, implied equal protection that there would Graham legiti- any very in which a State could be mately distinguish few—if —areas lawfully its citizens resident between aliens: prime example a 'discrete and
“Aliens as a class are a judicial minority heightened . . ... for whom . insular’ Accordingly, appropriate. is it was said solicitude ‘the of a state Takahashi, S., 334 U. exclusively apply a its alien inhabitants as laws its is atS., class confined within narrow limits.’” 403 U. 372. through part at-
The cases Graham for with dealt the most tempts by ex- the States to retain benefits certain ecоnomic clusively for has con- citizens. Graham, Since the Court distinguishing fronted claims economic between sovereign government. has functions of distinction This supported citizenship argument although been ground anot bene- relevant for the of economic distribution ground membership determining fits, it is relevant political community. recognize interest “We State’s establishing limiting par- government, its own form of ticipation government in that ‘the are within to those who conception political community.’” Sugarman v. basic of a Dougall, retreating While from the position lawfully pri- restrictions on resident aliens that marily subject heightened ju- are affect economicinterests scrutiny, supra; ibid,.; dicial re Examining Griffiths, supra, Board Flores de we Otero, have concluded that scrutiny place primarily strict is out of when the restriction scrutiny “[0]ur serves a function: will not be so de- manding resting firmly where we deal with matters within prerogatives [and] a State’s constitutional constitutional *7 responsibility operation for the establishment and of its own government, qualifications appropriately as well as the of an designated public Sugarman class of office holders.” Dougall, supra, at 648. haveWe thus “not abandoned the general principlе up state some functions are so bound operation governmental entity with the of the as a as to permit persons the exclusion from those functions of all who part process self-government.” have not become of the Ambach Norwich, S.,U. at in 73-74. And those high areas the State’s exclusion of aliens need not “clear the scrutiny,’ [that] hurdle of ‘strict because would ‘obliterate all depreci- the distinctions between citizens and and thus aliens, Foley citizenship.’” ate the historic value of v. Connelie, (citation omitted).6 S., at governmental processes The exclusion aliens from basic deficiency system necessary is not a in the democratic a but consequence community’s process political of the self-defi- Self-government, through repre- nition. whether direct or begins by defining community scope sentatives, of the governed governors and thus Aliens are of the as well: 6At times the a imply dissent do not establish seems to that our cases g., “[Sugarman] two-tiered condone a review —e. standard of not did looser ‘political standard for barring review of classifications aliens ” jobs.’ Post, times, explicitly re however, 453. At other the dissent “Sugarman demanding scrutiny fers to the exception” requiring “[l]ess ... deriving power statutes to exclude aliens from ‘a historical State’s ” Post, from participation in political its institutions.’ democratic community. Judicial incur- of this outside definition those aspects may those of demo- interfere with area sions essential to it. self-government that are most This cratic political functions of the economic distinction between replaced public/private the old government has, therefore, Although on foun- rests firmer this distinction distinction. public/private it diffi- distinction, be than the old dations particular apply cases. cult particular
Sugarman restriction that a claim advised political legally serves economic resident aliens on two-step process. goals First, evaluated is to be specificity will examined: a classifica- the classification substantially overinclusive underinclusive tion that governmental claim that the to undercut the classifica- tends legitimate tion ends. classification serves competitive Sugarman serv- itself—all members civil support the claim that it was an element in ice—could not political community,” its “the broad to define State’s indiscriminately swept in menial 41BU. because it leaving occupations, im- while out sоme of State’s most portant political if Second, functions. even the classification *8 particular sufficiently applied in it case tailored, be “persons only holding important nonelec- state elective or legislative, judicial positions,” offi- executive, tive and those “participate directly formulation, execution, cers who in the “perform public policy” or review of broad func- and hence go representative government.” tions to the heart of “posi- inquire Id., at 647.7 We must therefore whether the 7 Sugarman quotation The full is as follows: “ of its officers power qualifications ‘[E]ach State has the to prescribe the Boyd ex rel. v. Nebraska and the in manner which shall be chosen.’ Thayer, Borden, 7 1, 135, (1892). 41 143 How. See Luther U. S. 161 v. (1904). (1849); Pope Williams, power in- v. Such 193 U. S. 632-633 above, pre- already heres ‘to obligation, virtue of noted its Blumstein, Dunn serve the v. conception political community.’ basic of a S., applies, of the State responsibility And this discretionary tion . . . involves question decisionmaking, or which affects substantially execution of members of policy, Foley supra, Connelie, v. community.” at 296. of the Su- at issue in case both passes restriction garman tests.
Ill and the District Court agreed, that Cal. Appellees argue, 1031(a) (West Gov’t Code which 1980), Ann. all requires state “peace citizens, officers” is unconstitutionally 1031(a) overinclusive: is void law “Section as a citi- requiring F. zenship ‘sweeps broadly.’” which too 986.8 Supp., at The District failed to articulate standard in reach- any this conclusion. relied on ing Rather, wholly it its belief that voters, qualifications persons not to the holding of but also to state important executive, elective or legislative, judicial posi- noneleetive tions, for ‘participate directly formulation, execution, officers who in the public policy perform go review broad rep- functions that to the heart of government.’” resentative 413 U. language reaching Sugar-
This
is far
limits on
suggested by
no
it were
every governmental
man itself: almost
partici
officialcan be understood as
pating
public policies.
execution
broad
The limits on this cate
gory
citizenship
within which
political community
is relevant to the
are not
easily defined,
Connelie,
but
Sugarman Foley
our cases since
—
(1978),
Norwich,
U. S.
(1979) suggest
and Ambach v.
California are Code officers found Cal. Gov’t 9 is noting, however, by It worth mentioned categories Court, District employees, toll-service Bureau Live inspectors of the stock, cemetery coverage sextons were all amend eliminated from (West ments 1981), passed §830.4 Cal. Penal Code Ann. in 1980. Stats., 1340, p. 4724, 1980 Cal. Sept. 30, ch. effective *10 1980). (West § desig- does not section, however, That peace any particular rather, officer; Cal. nate official 1981) (West Supp. specific §830 lists the Ann. Penal Code general category “peace occupations of that fall within reading of the Penal Code Even a makes casual officer.”. categories peace unifying of all of of- that the character clear Specific categories function. is their law enforcement ficers jurisdiction by geographical or either their are defined responsibility specific have en- substantive laws categories surprisingly, the first listed in- Thus, force. county, city, police and district clude officers at the levels. by categories police §830.1. various This followed g., patrol by highway power e. officers, authorized the State: police, state and members the California National §830.2. when into active service. After Guard ordered long particular list officers with this, the statute includes responsibility for enforcement of different substantive areas g., charged e. with enforcement of the of the law: individuals beverage drug lаws, laws, the food and fire laws, alcoholic § racing Finally, the horse 830.3. there are sev- and laws. provisions include with nar- eral catchall some officers rangers, geographic responsibilities g., park row San —e. Bay po- Rapid police, Francisco Transit harbor Area District community municipal college police, security lice, officers utility govern- security employed districts, officers buildings g., ment some with narrow “clientele”—e. —and child-support investigators, of- welfare-fraud correctional probation §§830.31-830.6. parole ficers, officers. Although only categories may some a tenu of these have police enforce ous connection of law traditional functions questionable comparatively few ment, the classifications are general of all number.10 The character law enforcement Post, specifically only 10 Thedissent questions positions. four Recreation Inspectors, n. 7. Three Parks and these —Dental Board designated Department employees, voluntary fire wardens —are “peace See “primary duty” officers” enforcement. when their is law 1980). (West 830.3(b), (c), §§ Penal Ann. (j) Cal. Code “peace is underscored fact that all California officers” and all arrests, §836, have make receive a respective training their in the exercise of arrest course of Foley powers and in the use of firearms. made clear sovereign’s may limit *11 exercise of the that a State the coercive community police powers the members of the to citi over attempt issue here are an zens. The California statutes at to just They sufficiently light in do that. are tailored of that scrutiny pass aim we to the lower level articulated as the appropriate protection equal standard for such an exercise of sovereign power Sugarman.11
hH >
citizenship require-
The District Court also held that the
applied
positions
ment was invalid as
at issue here—
deputy probation
reaching
officers.
this conclusion, it fo-
narrowly
comparison
cused too
on a
of the characteristics and
probation
troop-
functions of
officers with those of the state
Foley
Foley
ers at issue in
and the teachers in Ambach.
permissible
Ambach did not describe the outer limits of
citi-
zenship requirements.
example, although
For
both of those
emphasized
communitywide responsibilities
cases
police,
suggestion
judges,
teachers and
there was no
community,
who deal
with a narrow subclass of the
can-
subject
citizenship requirement.
Sugarman,
not be
to a
See
Similarly, although
Foley
S., both
emphasized
unsupervised
Ambach
discretion that must
police
per-
be exercised
the teacher and the
officer
suggested
jurors,
formance of their duties, neither case
very specific
who act under set of
could not be
instructions,
required
to be citizens. See Perkins v.
370 F.
Smith,
11 Thedissent accuses the
holding
Court of
enforcement
the law
character of some of
positions
justifies application
covered
the citi
positions. Post,
zenship restriction unrelated
no
at 455. We indicate
opinion as to whether
applicants
noncitizen
positions could suc
for other
cessfully challenge the
applied
statute as
to them.
(1976).
(Md
nition of the important necessarily primary responsibility is community subject branches of limited government, ju- representative dicial review.12 at the functions of California probation
Looking officers, Fo like the state they, troopers we conclude that involved ley, of the sovereign’s power to sufficiently partake exercise individual that they coerсive force over the be limited citizens. individuals over Although range whom pro bation officers exercise is supervisory authority limited, the
12Appellees argue facially that the statute is also invalid because it im- permissibly The District underinelusive. Court did not consider this con tention, only argument by appellees and the advanced support of this impose claim is that fails to a citizenship requirement upon California its public Appellees school teachers. Brief for points, 29. At various the dis *12 upon alleged sent also relies the underinclusiveness of the statute. Although language Sugarman there is some indicating that such an argument appropriate, 640, 642, statutory and that a exclu- particular public sion of aliens from a employment form of will be evaluated light public of the entire framework employment positions open and aliens, clearly subsequent closed to our adopted posi- cases have not Thus, tion. Foley only both and specific governmental Ambach the directly functions argu- at issue were considered. Underinclusiveness Sugarman ments were relevant there the classification in- because competitive volved—the swept variety govern- civil in a wide service — mental functions. sweeping apparently Such a and indiscriminate categorization legitimate questions raises are not of arbitrariness raised when the particular a important governmental limits func- g., tion —e. police power coercive with such a citizens. When we deal —to specific category, only within arguments underinclusiveness are relevant category: there, the Are example, for the State’s individuals who exercise police power coercive respect, required that are not In this to be citizens? the California statutory substantially scheme underinelusive: Cal. is not (West 1981) § Penal Code po- Ann. Supp. only categories 830.7 lists two sitions which power have the “peace to officers”—and arrest but are not therefore are subject citizenship officers requirement security— at institutions of higher by a designated education certain individuals cemetery authority. respect probation powers are broad with officer to authority.13 proba exercise those whom over power arrest, both to Cal. Penal Code has the tion officer (West Supp. 1981); 1203.2 Cal. Civ. Proc. §§830.5, 836, Ann. (West 1954); § and to release those over Ann. 131.4 Code § jurisdiction. Penal Code Ann. Cal. 1203.1a whom he has 1981). (West responsibility Supp. the and the He has supervise probationers insure that all the conditions of probationer accomplishes probation the are met and that a community. reintegration into the successful Cal. Penal 1981). (West § Supp. respect ju Ann. 1203.1 With Code responsibility probation has the officer to deter veniles, offenders, mine to release or detain Cal. whether Welf. & (West 1981), in Inst. Code Ann. 628 and whether to judicial proceedings supervisory steps stitute or take other carrying §§630, over the minor. 653-654. out these responsibilities probation necessarily great officer has a just police deal of that, discretion like that of the officer and teacher, exercised, must be in the first instance, without supervision: direct probation parole
“Because the officer’sfunction is not compel so much to conformanceto a strict code of behav- supervise ior as to he has rehabilitation, course of been traditionally judge entrusted with broad discretion progress of rehabilitation in and has cases, individual 13 Measuring scope community than it contacts is more difficult may appear. Although probation responsibility officer has *13 relatively part small community, responsibility of the exercising probation necessarily officer a much broader section comes contact with community. of the supervisory bring His him into responsibilities will contact many with supervision must those with whom under his those g., interact —e. employers, teachers, landlords, re family. this spect very he is policeman, much like author who exercises his coercive ity over a small individuals, responsibilities class of but carries out his through community. interactions with larger segment a much of the power to recommend or even to
been armed with the de- Gagnon Scarpelli, revocation.” U. S. clare (1973). overly idealistic view of the educa- One need not take an during probation period officer of the tional functions recognize probation officer acts as an that the extension of authority judiciary’s conditions to set the under which particular lead their lives and of the execu- individuals will authority obedience to those conditions.14 tive’s to coerce probation perspective probationer, his officer From the of the sovereign powers; may personify per- from the the State’s community, probation may spective larger officer community’s symbolize political control and thus over, responsibility have been found to vio- for, those who have perspec- From both of these lated the norms of social order. may citizenship requirement appropriate seem an tives, a sym- and, therefore, exercise limitation on those who would community over those who bolize this jurisdiction. fall within its judgment
Therefore, reversed, of the District Court is proceedings the case consistent is remanded for further opinion. with this
So ordered. Jus- Blackmun, Brennan, Justice with whom Justice Marshall, tice dissenting. and Justice Stevens join, Appellees Ybarra, Jose Chavez-Salido, Pedro Luis Bohorquez Spanish-speaking Ricardo are American-educated amicus 14 Thuswe do compelling presented not find the statistics ar Employees Union, at oral by appellees Service International and cited growing gument, Arg. 40, Tr. of Oral of a which that because indicate caseload, of any probation the time a individual spend officer has to with fender be minimal. *14 California.1 Seven County, Los Angeles residents of
lawful become a Los aspiration a modest each had years ago, —to Officer, Spanish-speak- Probation “Deputy Angeles County to the State and loyalty swear willing Each was ing.” Chavez-Salido de- indeed, Governments; appellee Federal exami- By competitive a citizen. intent to become clared his the third, demon- possibly appellees, two of the nation, desired.2 they Appellants the jobs their fitness for strated were not citizens. because solely them those jobs denied exclusion from appellees’ concludes The Court today necessary is “a consequence their chosen profession Ante, at self-definition.” community’s process this conclusion by misstating 439. The Court reaches classifica- applied alienage of review it has long standard admitted lawfully permanent It then asserts that a tions. as a serving deputy probation resident alien is disabled from Mexico, Chavez-Salido, permanent legal in has been a resident of born in country years. for 26 He has received all his formal education Cali this fornia, including degree in studies a Bachelor of Arts Mexican-American College Long Beach. California State
Ybarra, country Spain, permanent born has been a resident of this possesses theology from degree since 1972. He a Bachelor of Arts University Spain, degree in African Camillas and a Master of Arts Stud- University working Angeles. ies from the of California at He is for Los University degree, another sociology, Master’s at California State Northridge.
Bohorquez, Colombia, born in resident of permanent has been a country since degree 1961. He has a in Latin-American Bachelor of Arts University App. studies from the 19-23. Angeles. of California at Los Chavez-Salido scored 95 out of examination qualifying 100 on a oral (DPO) Deputy II, position Probation Officer Spanish-speaking, out of 100 on the was position, oral but examination for the Trainee DPO job solely offered neither denied was citizenship. because of his Ybarra employment II passing after DPO Trainee and examinations for the DPO positions. II, Bohorquez for DPO pass did not examination his initial oral but appeal did not him his appellants his told examination results after alienage appeal Id., made an useless. at 19-24. *15 job “‘go[es] represent-
officer because that to the heart of government.’” quoting Sugarman ative at Ante, 440, v. (1973). Dougall, 413 U. 634, S. my today’s prece-
In decision rewrites view, the Court’s ignores history, dents, defies common sense, and reinstates deadening parochialism public employ- the mantle of state ment. I must dissent.
I properly acknowledges The Court that our decisions re- garding against permanent state discrimination resident pattern. aliens have fоrmed a Ante, 436. Since Yick Wo Hopkins, (1886), v. recognized U. S. 356 this Court has right lawfully permanent and honored the of a admitted resi- living dent occupations alien to work for a in the common community. (1915), In Truax v. Raich, U. S. 33, right the Court declared that to be very personal opportu- “the essence of the freedom and nity purpose [Fourteenth] that it was the of the Amend- solely upon ment to secure. If ... this could be refused ground nationality, prohibition of race or of the any person protection equal denial to of the laws would be a barren form of words.” Sugarman Dougall, supra, expressly we refused to exempt public employment positions general from this rule. Sugarman, facially an 8-1 decision, struck down as inconsist- Equal ent with the Protection Clause a York statute New lawfully that excluded admitted aliens from all state civil jobs service competitive offered on the basis of examinations. Sugarman permanent directed that resident aliens occupations be barred public as a class from the common community. There, had asserted its here, the State ensuring sovereign substantial interest functions “that performed by Ap- must be Brief for members of the State.” pellants Sugarman Dougall, 71-1222, T. No. O. p. denying weight of that interest, Without “judged in that, Court concluded the context of the State’s statutory justifications broad framework and the the State present[ed],” the State’s chosen means insufficiently precise uphold were its broad exclusion of public employment. aliens from Sugarman, consistently
Since the Court has held against each case where the State chooses to discriminate permanent governmental aliens, resident “the interest justify carefully claimed to the discrimination is to be exam- legitimate ined in order to determine whether that interest is inquiry and substantial, and must be made whether the *16 adopted goal necessary pre- means to achieve the are and cisely Examining drawn.” Board v. Flores de 426 Otero, (1976). Nyquist 572, U. S. 605 See also 432 Mauclet, (1977); 1, U. S. (1973); 7 In re 413 Griffiths, U. S. 717, 721-722 (1971). Graham v. Richardson, 403 U. 365, S. 376 “Alienage by classifications a State that do not withstand this stringent Nyquist examination cannot stand.” v. Mauclet, 432 S.,U.
Applying stringent this standard I here, would hold that, 1031(a)(West 1980) § on its face, Cal. Gov’t Code Ann. vio- 1031(a) Equal lates the Protection Clause. Section makes citizenship prerequisites employment one of six unrelated for “public office[r] employe[e] as a by [a] declared law to be peace office[r].”3 Scattered sections of the Cаlifornia Code designate variegated then public employees a collection of as “peace by officers,” who definition must be citizens. When appellees sought jobs, “peace category first their the officer” encompassed public occupations, including more than 70 such apparently positions cemetery unrelated takers, toll sex- 1031(a) Section provides peace 18, that a finger officer must be at least printed, good (or moral character, high graduate equivalent school thereof), physically and mentally healthy, and “a citizen of the United States.” game bedding inspec furniture
tons, wardens, fish and voluntary investigators, county tors, wardens, fire racetrack Supreme Appeal Court and coroners, State Courts of bailiffs, messengers inspectors Treasurer’s office, at the State Examiners. for Board Dental See Chavez-Salido v. (CD 1977) Supp. (listing Cabell, n. 158, 169-170, 427F. Cal. legislature positions). day, To this has offered no reason why divergent public jobs gathered such classes were “peace umbrella.4 under officer” history statute, reviewed the District Court, suggests answer. Before 1961, California did not re- any peace quire of its officers citizens. See 490 F. (CD 1980). Indeed, Cal. in 1851, California granted only policemen, sheriffs, marshals, constables statutory “peace status. Id., officer” n. 4. For more century, than the State did not reserve even those four occupations for citizens. Over the decades, dozens of subse- quent public positions “peace enactments other added to the required peace list, officer” but none officers to be citizens. positions Ibid. Some were added list reasons to- tally logic.5 unrelated to litigation After began, and the District had twice declared 1031(a) unconstitutional, Legislature sec California twice amended *17 Code,
tions of its removing “peace Penal positions some from the officer” 1980) (CD and adding list others. Supp. 984, 986-987, See 490 F. n. 6 Cal. (listing list). additions to peace and deletions also from the officer See Stats., (same). Cal. 1340, 30,1980 ch. Sept. legislature effective The still has never declared particular what criteria it uses to decide whether government position “peace deserves officer” status. 5 judge A of the California Court of Appeal once noted:
“No mystery peace surrounds extension of the traditional definition of Legisla- officer to such unrecognizable an degree by Legislature. the The resрond ture must offi- groups. interests of Correctional various cers, for example, granted were ‘peace order status officers’ peace obtain better of- group [BJecause insurance benefits. . . . appear ficers have enjoyed many employee to past, better benefits times groups, officers, even have tangentially peace associated with the role of “in one rationale, swoop, fell any 1961, stating without 1031 which Code Section Government passed the legislature to all of the requirement mandatory citizenship applied Id., legislature appar- on the list.” positions all officer” list “peace include on to attempt made no ently be relevant citizenship arguably might for which positions would be irrele- plainly for which it all to positions exclude 1031(a) enacted, was California’s § after vant. Nine years stated: Attorney own General . . citizenship that. this requirement
“It is our opinion . . . imposed. no validly can longer general there was no requirement to “[PJrior are aware of no to be a officer. We peace citizenship that would at justify change that occurred change that the classifica- opinion date. . . . are [W]e Thеre constitutionally does not permitted. tion is not ... justify be a state interest to compelling appear alienage.” Opin- certain officers classifying peace (1970). Cal. Gen. 67-68 69-199, Atty. No. Op. ion history, sensibly After the District Court reviewing 1031(a) § not sur- concluded, twice, not once but could Sugarman vive the standard of review mandated rigorous Cabell, See Chavez-Salido v. 427 F. Supp., and its progeny. Cabell, Chavez-Salido F. 169-171; Supp., 985-986. counsel had Noting that the State’s own legal interest, found the statute state unsupported compelling aby the District Court concluded that the California Legislature had never made reasoned to exclude aliens judgment each individual Id., officer” at 985-987. “peace position. The District then struck found like the that, provision down in Sugarman, 1031(a) “is overbroad grossly much too in its alien sweeps broadly employ- proscription ment.” F. Supp., at 987. persuaded Legislature ‘peace include officer.’” them within the term
Hetherington Bd., State Personnel 582, 600, 147 Cal. App. 82 Cal. 3d *18 (1978) Rptr. 300, (Reynoso, J., 311 dissenting).
453 §1031(a)’s even at Without glance history, Court that the District reverses, reasoning Court today improperly a standard review far stricter than “applied that approved Sugarman Ante, cases.” at 442. and later The Court Sugarman hold that reads “strict is out of scrutiny place when the restriction resident lawfully [on aliens] primarily Ante, serves a function.” on political Based its “cas- ual of the list of officer” reading” “peace positions from excluded, which aliens are then Court decides “the all character of unifying categories peace officers is their Ante, law at enforcement function.” 443. Conceding that 1031(a) also bars aliens from jobs “may only have a ten- uous connection to traditional functions police of law enforce- ment,” ante, at Court nevertheless declares that classifications “need not alienage precise; need there be a substantial fit” between the classification used and the Ante, at State’s asserted interest. 442. Sugarman.
The Court’s analysis fundamentally distorts That decision did not condone a looser standard for review of classifications aliens barring from “political” both jobs. Sugarman Nyquist, the Court recognized that a State name its its “historical community by exercising and constitutional powers define the of vot- qualifications ers or of ‘elective or important nonelective’ ‘who officials par- ticipate directly formulation, execution, or review Nyquist broad public pоlicy.’” Mauclet, 11 S., v. at U. Sugarman, (footnote omitted), U. quoting 647. At the time, same “in however, warned seeking achieve this with discrimina- substantial purpose, tion against aliens, the means must be pre- the State employs Id,., cisely drawn in light of the acknowledged purpose.” Foley Connelie, While the subsequent decisions and Ambach S. Norwich, (1978), 441 U. S. (1979), have explored the to de- boundaries a State’s power fine its political have not altered community, those cases *19 454 Foley tempered declara- review. standard of
stringent most important policy “its entrust tion that a State that a the caveat with to its citizens responsibilities” restriction citizenship end with “accomplish may not to the dif- regard . . without indiscriminately,’. that ‘sweeps 435 at 296 S.,U. involved.” positions in the ferences Sugarman, at 643. S., Similarly, n. citing 297, 5, re- Ambach declared tolerance citizenship judicial “is an exception offices public for essential quirements based on to classifications alien- applicable standard general 441 age.” Sugarman state standard, a statute bars
Under the the politi- within squarely lying aliens from political positions Protection violates Equal cal nevertheless community in an un- from other public jobs if it excludes aliens Clause at issue here manner. The statutes or haphazard thinking exercise of haphazard such an unthinking represent just found, and the Court does state District Court power. officer” the more than 70 “peace posi- some of deny, have be consid- tions from which aliens been barred “cannot ered matter how lib- community members no F. at 987. At erally that is viewed.” 490 category Supp., time, the same has aliens teach California long permitted schools, works, and public to be on employed public serve in most state, city, employment positions— county all positions community.6 within arguably the political 6 Purdy State, Fitzpatrick (1969) & 566, See P. 2d 2d 71 Cal. works); (invalidating public citizenship requirement employment on for 7, 2, Stats., 2, 653, p. 1277, 1, § Cal. ch. Pt. Div. repealing Art. ch. (West 1955) (former citizenship requirement Cal. Lab. Code Ann. employment any county city). any department of or of the State generally Comment, See of Permanent Resident The California Exclusion (1974) Appointive Office, Aliens from L. 126-131 Public 11 W. R. C. (listing governmental California resident positions permanent from which excluded). aliens have and have not been exactly Sugamnan,
Thus, like the statute struck down statutory fatally California’s exclusion of aliens is overinclu- employment sive and underinclusive. It bars aliens proffered public positions justifi numerous where the State’s any, if At сation has relevance. the same it little, time, al positions naturally lows aliens to fill other that would seem purpose. Sugarman, *20 fall within the Cf. State’s asserted S.,U. 642. of review of at “Our standard statutes that treat greater differently requires degree aliens from citizens a of precision.” Ibid.
Nor its of can Court reconcile new notion a “substantial stringent long fit” with of standard review the Court has alienage applied Every classifications. time the State re- citizenship quires single “peace position, for a officer” it ex- permanent cludes from resident aliens hundreds or even public jobs. thousands Court’s novel standard re- legislative view condones a classification that excludes aliens public occupations although citizenship from more than 70 rationally required cannot be even for a substantial number many positions may of them.7 The fact that of those involve justify barring any law enforcement cannot from noncitizens positions plainly Today’s do not. decision thus holdings may defies the Court’s earlier that the not ex- States any occupation” clude aliens from “harmless for and useful citizenship rationally required. which cannot Yick Wo v. Hopkins, S., 374; at Truax 41. Raich,
7The seriously Court cannot argue, positions of example, Dental inspector, Board messenger office, in the Parks State Treasurer’s Department and Recreations employee, repre warden and volunteer fire “important sent Sugarman Dougall, positions,” nonelective see (1973), U. S. type constitutionally historically the States have reserved for their citizens. latest legislature’s Yet even after amendments, all “peace remain positions are ex officer” which aliens from 1031(a). by § cluded
HH H-4 proscribed unambiguously exclu- Sugarman blanket While acknowledged jobs, its dictum from state sion of aliens narrowly power a class from noncitizens to bar State’s posts involving important range nonelective circumscribed formulation, or re- participation execution, “in the direct public policy.” 413 at 647. Under S.,U. of broad view public exception, of- Sugarman’s certain reserve States “perform if offices functions their those fices for citizens representative government.” go Ibid. heart of Sugarman exception originally understood, the was As scrutiny demanding exceedingly was deemed narrow. Less deriving appropriate only “a his- from State’s for statutes participation its to exclude aliens torical rеspon- its institutions” or “constitutional democratic operation govern- sibility its own for the establishment Long Sugarman, the Court Id., ment.” before *21 apply a its exclu- that of state to laws warned “the sively is nar- to its alien inhabitants as a class confinedwithin Comm’n, Fish 334 U. S. limits,” row Takahashi v. & Game (1948). (1973), 420 In re 413 717 de- 410, Griffiths, U. S. day Sugarman, emphasized the cided the same as further asserting [Sugarman] exception” by that “narrowness of the every public States could not reserve for their citizens “vital Nyquist and cit- Mauclet, S., 11, role.” v. 432 U. at ing In re 413 Griffiths, S.,U. at 729.
Sugarman’s holding power made clear that a State’s public occupations exclude resident entail aliens from that public policy” limited. “execution ... of broad Sugarman, Foley S. S., Connelie, 413 435 U. at 647. v. (1978), (1979), 291 then and Ambach 68 v. Norwich, U. S. public jobs involving for- clarified that but not execution, judicial policy meet mulation will review, and executive Sugarman’s exception they basic if constitute “one government” “fulfilfl] a most
functions of fundamental government constituency.” Foley, obligation to its U. S., at 297. Foley accepting judgments in the and Ambach
Even as binding, unsupported I cannot embrace Court’s assertion “Foley Ambach describe that did not the outer limits of citizenship permissible requirements.” Ante, 444. From Foley analysis in Ambach, the Court’s onе must conclude may Sugarman’s exception that a State invoke narrow making showing.8 without a substantial Foley require I and Ambach to read the State to show that historically particular position it a has reserved executive prerogative].” its its citizens as matter of “constitutional Sugarman, 413 S.,U. Furthermore, State must public employee position demonstrate exer- plenary authority cises coercive and control over a substan- portion population. public employee tial of the citizen authority must exercise over his clientele without inter- vening judicial supervision. or executive Even then, the “ prove citizenship State must ‘bears some rational rela- tionship special particular position.’” demands quoting Dougall Sugarman, Id., F. (SDNY 1971)(Lumbard, concurring). J.,
8 Foley Connelie, require police Court held that men citizens because are “clothed with” are described as what “plenary discretionary powers.” at 297-298. Policemen exer powers cise those people “over generally” part “pervasive” pres their Id., ence in society. modem policemen at 297-299. often act Because prior judicial “without authority,” they require grant “prophylactic au *22 Id., thority” from the State. authority at 298. of demands Exercise “very high degree a judgment discretion, misuse of and the abuse or which can impact have serious Ibid. on individuals.” Ambach v. Norwich held that a not de- bar aliens who have clared their intent to become teaching public schools be- citizens from cause perform teachers a similarly “governmental function.” significant Schoolteachers, Ambach noted, possess responsibility high “degree a Sugarman’s swal- test, exception a rigorous such Without Sugarman’s not does such apply the Court Yet rule. lows importance it Instead, “look[s] today. test rigorous a factor substance giving function the [governmental] Ante, at self-government.” of democratic concept standard, the Court then con- this nebulous n. 7. Applying officers perform County probation Angeles that Los cludes functions of the commu- political sovereign “important three Ante, at one those inspection, 445. Yet on nity.” all resident aliens permanent excluding justifies functions position. officer deputy probation from the officers probation “partake declares First, over the to exercise coercive force sovereign’s power of the Ibid. “the range Yet Court сoncedes that individual.” supervi- whom officers exercise probation over of individuals Ibid. Even over those individ- is limited.” sory authority are condi- carefully officer’s coercive uals, powers probation officers cannot carry guns. tioned statute. Probation F. arrest those They may only at n. Supp., See for under and even then jurisdiction, only their probationers for a deter- them before court purpose bringing Pe- or released. Cal. mination whether should be held they (West 1981). § nal Code Ann. 1203.2 State statutes Supp. in emer- only authorize officers to detain probation juveniles & and, even Welf. gencies then, brief Cal. periods. (West 1981). Inst. Ann. §§309, 313, Code 1031(a) of the Court claims that the exercise “limit[s] coercive members sovereign’s over the police powers Ante, 444. Yet other statutes community citizens.” obliga- government’s discretion” which basic to fulfill the exercise Furthermore, provide public tion teach- education. students, “direct, ers have unsu- day-to-day exercise contact” with their pervised them, models, influence their discretion over act as role Id., process. government students’ attitudes about the 78-79.
459 gives The State arrest to a belie that assertion. peace employees public аre not officers, who but number of employees require those citizens. See Cal. does not (West 1981) §830.7 (describing Ann. Penal Code arrest”). having powers peace “[p]ersons officers but not any “private person,” authorizes in- Moreover, California cluding permanent aliens, to arrest resident others who have actually have felonies who committed or at- committed §§ presence. tempted public in their offenses 837. The legislature that the has Court’s hollow assertion reserved its powers ignores reality sovereign coercive for its citizens already powers that the has bestowed some of those on including private persons, aliens. all probation asserts that Second, the Court officers necessar- ily . . . have “discretion that must be the first exercised, supervision.” without direct at 446. instance, Ante, Yet to say say very everyone little. this is to Almost who works bureaucracy government exercises some discretion that unsupervised in the first instance. The itself ob- probation primarily in- serves that officers have discretion to vestigate, supervise, evaluate, and to recommend. primary preparing Ante, at 446-447. Their are duties presentence reports, supervising probationers, аnd recom- mending probationary sentences and terms. Chavez-Salido Supp., v. Cabell, F. denigrate I I
While do can neither functions, these equate policemen, discretionary them with the duties judges, jurors. policemen, probation officers are Unlike authority not “clothed with infinite va- an almost exercise riety discretionary powers.” Foley Connelie, jurors 297.9 final verdicts Unlike who deliver Norwich, Nor can 441 U. S. analogy to Ambach argue by the Court (1979), probation teachers, probation officers, influence their like citizen’s process, ers’ “attitudes . . . and a government, toward the decisions of sentences, final probation who judges impose *24 and supervised by to offi- advisory judicial officers are always officers cannot by themselves de- cers. California probation Cal. Penal Code Ann. 1203.2 probation. clare revocation 1981). (West Furthermore, the investigative and re- Supp. are officer extensively of a probation regulated duties porting The fact that §§ 1203.2-1203.12. offi- probation statute. by in the criminal justice role does integral system cers an play prison guards, bailiffs, them from court clerks, not separate other functionaries who execute a and the State’s myriad ju- dicial policy. California’s inflexible exclusion of
More aliens significantly, officer positions from inconsistent with deputy probation its tolerance of aliens other roles to the integral criminal counties California justice system. apparently may appoint aliens to the positions juvenile probation officer or chief adult officer “if. . . the probation best interests of the chief county (West §24001
will be served.” Cal.
Ann.
Gov’t Code
1981).
even
In re
Furthermore,
before
Griffiths,
(1973),
U. S. 717
the California
Court had held that
Supreme
resident aliens
lawfully
may
be barred constitutionally
from the
of law.
Bar
practice
Committee
Raffaelli
(1972).
Examiners,
The third and final claim is that a Court’s officer symbolic judiciary’s acts as an actual and “extension” of the authority probation of set conditions and the executive’s authority to coerce obedience to those conditions. Ante, at by saying, simply Yet, so the Court concedes that the authority probation ultimate for a officer’s acts lies else- where. we held that Griffiths, aliens are not constitution- ally serving disabled from as “officers of the court.” 413 judicial S.,U. at 722-727. Given the size of the State’s bureaucracy, Sugarmaris executive little would be left of holding Sugarman exception if a State couldinvoke the ex- probation any position clude officers from which “extended” judicial authority.11 or executive probation
Nor I am convinced the Court’s claim that a personifies eyes sovereign powers officer the State’s the 845, §§61, result, becoming 87. As a the a remaining restriction on judge in California is membership in the certain number state bar for a years. Const., VI, Cal. Supreme Art. Court’s 15. After the California Raffaelli, hence, decision in and, to be- eligible aliens became for the bar judges. come 11 The every govern Court concedes as much when it notes that “almost mental official can be of broad participating understood as in the execution public policies.” Ante, 441, n. 7. community. justification larger probationers This and the Surely taxpayer feels the a State’s sover- limit. knows no eign door; comes to his the localtax collector when the sovereign powеr gov- community recognizes larger the firefighters put out a fire. The State ernment when local jobs, citizenship for those however, not also demand could Sugarman. eviscerating thoroughly Nor does the without foreign-born sight deny individuals not encouraging following, merely follow, others to our laws but symbol respect society’s powerful equally for our so- is an cial norms. per- no characteristic of
In the the State has identified end, class disables them manent resident aliens which probation Foley performing job deputy officer. Cf. dissenting). J., at 308 Connelie, S., (Stevens, appellees possess dispute quali- State does not these background perform fications and educational duties job supra. nn. 1 Indeed, appellees, entails. See why advances no rational reason these native Spanish-speakers graduate degrees, with academic are not superbly qualified probation Spanish- to act as officers for speaking probationers, some of whom themselves not be citizens. Cf. Ambach v. 87-88 Norwich, (dissenting opinion). familiarity challenge appellees’
The State cannot lack of might disqual- with local laws or rules. Such consideration *26 ify permanent nonresident citizens, but resident аliens not who have lived Nor can California for much their lives. presume loyal the that to aliens as a class would be less rulings the State. The Court’s Griffiths, In re Hampton Wong, n. 88, v. Mow 426 U. S. Sun (1976),clearly 111, n. 43 a citizen state that need not be one good support in order to swear conscienceto the Constitu- appellees applied jobs, tion. When these ex- for their pressed willingness their later de- to take such oaths. One clared his intent to a citizen. See become, became, and then cannot claim the State Finally, 985, n.
490 F.Supp., aliens to be- encourage it seeks 1031(a), § by enacting federal inter- exclusively is an That objective come citizens. at 10-11. S., Mauclet, Nyquist est. exclusion of these ap- that California’s
I can conclude only officer stems deputy probation position from the pellees toward hostility foreigners parochialism from state solely I find it ironic lawfully. country to this have come who of democratic self-govern- the principle invokes the Court individ- enforcement process the law ment to exclude here but who now lawfully, resided uals who have its laws. Section enforce the State help merely desire and an treatment 1031(a) equal rights appellees’ violates of fitness. determination individualized 1031(a) Court’s ruling I affirm the District would and as applied. on its face unconstitutional