*3 BROWN, GEE, Before GOLDBERG and Judges. Circuit GEE, Judge: Circuit appeal grows This out of a class action injunctive for declaratory against relief provisions enforcement of certain of Louisi- Holding ana’s Dual Office and Dual Em- Law, ployment Act No. 700 of La.Rev. (West 1981). 42:61-66 Supp. Stat.Ann. The prohibitions public employ- Act’s on dual ment are set forth in La.Rev.Stat. 42:6s.1 specifically, More subsections A and E of section 63 were as violative of the Louisiana Constitution and of the protection, process, due and contract clauses of the United Constitution. Section Guste, Jr., William Gen., J. Atty. Patricia government 63A forbids state or local em- Nalley Bowers, Atty. Gen., Asst. Ron- ployees working part from full or time for Davis, Orleans, La., ald C. New for defend- government either the federal or for anoth- ants-appellants. government. er state 63E forbids Section Murov, Orleans, La., i.e., Mark employment, G. M. dual “full-time” Gelfand, Plains, Y., per David than 35 White N. hours week at each sec- job.2 plaintiffs-appellees. tor government politi- of this state or in the of a 63. Prohibitions person office, holding person A. No cal an elective subdivision thereof. No such appointive office, employment any employment оr shall hold the same time government state, the political government branches of state or of a the political of this or in the same subdivision thereof shall at the same subdivision in which he holds an office, appointive time hold another elective sheriff, elective office. addition no asses- office, employment government sor, or in the of a any or clerk of court shall hold office or foreign country, government in the of the employment parish governing under a au- States, government United or in the board, of anoth- thority any or school nor shall mem- er statе. any parish governing authority ber of Except provided by B. as otherwise any employment school board hold office or constitution, person holding any sheriff, assessor, of- with or clerk of court. employment fice or in one branch of the state person holding appoin- E. No a full-time government shall at the same time hold an- employment tive office or full-time government in the employment any other office or other political of this state or of a government. branch of the state subdivision thereof shall at the same time person holding No C. an elective office in appointive hold another full-time office or government of this state shall at the same employment government full-time in the office, time hold appointive Louisiana, another elective a full-time government the state of in the of a office, employment thereof, political subdivision or in combina- a government of this state or in the tion of these. political ment of a subdivision thereof. “ provides: person 42:62(4) holding D. No La.Rev.Stat.Ann. ‘Full- an elective office in political period a time’ means the normally of time which a subdivision of this state shall at еxpected the same works or is to work in an time hold another elective office or appointive employment appointive government office or which is full-time office in the (A) injunc- permanent claims for a Subsection un-
Plaintiffs’ La.Rev.Stat. 42:63 declaratory judgment for a were tion and applied holding constitutional as to those court, along to the district with a submitted (as opposed employment holding to those preliminary injunction pursu- for a motion appointive elective or office with the 65(a)(2). ant Fed.R.Civ.P. court de- government political or a subdivi- сonsideration ferred of class certification thereof) (E) sion . .. subsection of La. pending injunctive its decision and de- 42:63 ap- unconstitutional as Rev.Stat. claratory January relief. Trial was held on plied holding employ- to those full-time 16, 1980. The court certified a class consist- opposed (as ment to those full- holding ing of office) time appointive with the State (not All holding employment Louisiana and full-time including office) appointive full-time thereof; political subdivision and as branches of those holding two em- full-time *4 of Louisiana political State or of a subdi- ployments рolitical with a subdivision of thereof employ- vision and who also hold the state. in the government foreign ment aof governor The and attorney general of the country, government of the United States, here appeal. or in the State of Louisiana We reverse of another state; persons and all holding finding full-time of a the court’s violation of employment with the Louisiana State of equal protection clause.
who also hold
with
full-time
political
thereof,
a
subdivision
and those
Equal Protection
holding full-time employment with two
equal protection
The
clause mаn
political subdivisions.
treatment
simi
dates similar
plaintiffs
The named
were
hold-
at all times
lar
It
situations.4
hornbook law that
low-level,
jobs
ers of dual
nonelective
equal protection analysis
traditionally
state,
the city,
governments.3
federal
against
the backdrop
made
stan
two
plaintiffs
govern-
None of
named
were
dards,
scrutiny
strict
and minimum ration
officials,
ment
and none held two full-time
ality.
scrutiny, requiring that
Strict
positions with the State of
The
Louisiana.
compelling
statute
further
a
challenge was therefore
neither at
directed
interest,
state
is “strict” in
usu
theory and
the Act’s ban on multiple
appoin-
elective or
ally
fact5
“fatal” in
and “has been reserved
positions
tive
nor
prohibition,
at its
at sec-
race,
involving
religion,
tion
for matters
holding
63B
nation
jobs
of two
within
branches of the
origin,
impinging
al
characterizations
”
ment.
rights.’
‘fundamental
v. Or
Seoane
Pharmaceuticals, Inc.,
146,
tho
149
The district court held that section 63A
1981) (footnotes omitted).6
Ra
and E violated the
protection clause
scrutiny requires only
tional basis
the fourteenth amendment to the United
legislative
rationally promote
States Constitution.
classification
Specifically,
court
declared:
legitimate governmental objective.
Un
per day
Protection,”
1,
seven
least
hours
of work and at
Newer
86
8
Harv.L.Rev.
per
least
hours
(1972).
invariably
35
week of
scrutiny
work.”
But strict
is not
See, e.g.,
States,
fatal.
Korematsu v. United
included,
They
example,
a United States
214,
193,
(1944).
323
65
U.S.
S.Ct.
der the wide
in the area of
discretion afforded
test,
states
equal protection analysis.
under this
the constitutional
The Court has
safeguard
only
that,
is “offended
if the classifica
allegation
reaffirmed
absent an
that a
grounds
tion rests on
wholly irrelevant
legislative
classification scheme burdens
objective.”
the achievement of the state’s
rights
suspect/qua
fundamental
or creates
Maryland,
v.
McGowan
classifications,
si-suspect
economic and so
1101, 1105,
S.Ct.
Rational-basis
ble
ceptions
public employment.
here. Plaintiffs
allege
The Louisi-
belong
suspect
to a
quasi-suspect class,
ana statute is obviously aimed at the wide-
right
public employment
hold
spread
perception
public
employment—
recognized
See,
not a
right.
fundamental
federal, state,
whether in
or local
e.g., Massachusetts Board of Retirement v.
merely
ment offices —is
a sinecure and that
Murgia,
307, 313,
it is
give persons
intolerable to
two slices of
(1976)
(upholding man
pie.
public
datory
retirement from
service
50;
age
It was
tested
also reasonable for Louisi
under mini
rationality
mum
scrutiny).
legislators
ana
We must there
to believe that dual low-level
apply
fore
two-stage inquiry
outlined in
sector
creates an im
Insurance,
Western & Southern Life
proper appearance
impropriety.
Section
*6
equal protection challenge to a New Orleans
interests of eаch other. The attainment of a
prohibiting pushcart
ordinance
high
by
food sales in
level of confidence and trust
city, despite
the French
general citizenry
public officials,
Quarter
employ-
“grandfather
provision” of the
ees,
ordinance that
governmental
and
decisions
is further
exempted pushcart
operated
vendors who had
by
impaired
the excessive accumulation of
eight years.
Supreme
Quarter
governmental power
which
result from
city
Court concluded that “the
could reason-
public
employees holding
officials or
two or
ably decidе” that the older vendors had become
public
public jobs.
offices or
part of the distinctive charm of the Quarter.
purpose
imple-
B.
It is the
of this Part to
Id. at
63’s have a reasonable Clause does not basis. that a State The district court held subsection 63A over attacking every must choose between as- inclusive because it does “not bear rea pect problem attacking of a or not purported objec sonable relation” to the problem at all. promoting public tives of confidence (Citations omittеd). We therefore conclude government. According to the district challenged provisions of Louisiana court, Legislature the Louisiana should law withstand the strictures of the public have employment restricted dual protection clause. instances in which conflicts of interest are obvious, e.g., to cases in which the hours of employments
the two conflict. We do not Other Constitutional Claims doubt that the Legislature could challenges Plaintiffs’ other to sub have drawn narrower definitional As lines. E, invoking proc sections 63A and the due out, pointed however, has often been courts ess and contract clauses of the United equipped judge are ill the wisdom of such Constitution, require such ex legislative See, drawings. e.g., line argue tended treatment. Plaintiffs City Beazer, Authority York Transit v. they legitimate expectation have a of con 568, 592-93, 1355, 1369-70, U.S. tinued positions in their (1979); L.Ed.2d 587 City Alford v. of Lub process that under the due clause of the bock, 1266-1268 fourteenth they amendment were entitled 1982). Similarly, 63E, applicable subsection to notice only hearings and individual before positions two full-time politi within Louisiana, cal subdivisions of the discharged, relying State of could be on Board a rational means of maintaining employee Roth, Regents v. S.Ct. efficiency and avoiding those conflicts of 2701, Perry L.Ed.2d 548 v. interest likely to be public destructive of Sindermann, government. confidence in L.Ed.2d 570 plaintiffs Yet the do
The district court’s concern
allege
that subsec- not
that subsections 63A and E have
tions 63A and E lacked a “close fit” with
been discriminatorily applied. The chal
purported
their
justifications was answered
lenge
here is to
general
long ago
in Dan-
application
employees
spec
all
within the
dridge Williams,
v.
471, 485-87,
class,
ified
not with the dismissal of individ
1153, 1161-62,
(1970):
ual
employees. As the district court
In the area of economic and social wel- discerned, plaintiffs’ arguments
state an
fare, a State does not
violate the
equal protection,
process,
not a due
chal
Protection Clause merely because the
lenge.
Sindermann,
Perry
Cases such as
classifications made
its law are imper- Roth,
Gosney
Independent
v. Sonora
fect.
If the classification has some “rea-
*7
District,
1979),
School
power unreasonable, been to shown to be impose upon either on its the states their views of Seoane, what applied.” constitutes wise economic face or as F.2d or social policy. ... Protec- inquiry. 151. That concludes our public employees. We have difficulty next contend that cer in
Plaintiffs of the provisions rejecting argument. tain Louisiana Constitut this statutes,14 ion,13 of state and of collective
bargaining agreements constitute contrac Louisiana Constitution agreemеnts tual the state that Finally, plaintiffs pendent assert a plaintiffs’ positions in will not be dismissed upon claim based the Louisiana Constitu “just cause” and that Louisiana without X, article § La.Stat.Ann. impair in obligations cannot its violation of (West 1977), provides: Const. 2 “The the contract clause of the United States legislature defining shall enact laws and proper Constitution.15 This contention was regulating defining, dual ly by the court. As the dismissed district regulating, prohibiting dual officehold pointed district court out: ing government.” in state and local Ac assuming arguendo pro- Even that those tp cording plaintiffs, the the framers the state, they are visions contracts the Louisiana Constitution intended clearly prohibit were not meant to employment, opposed of dual definition as passage subsequent enforcement of officeholding, narrowly to dual be drawn. pro- the Act These involved in this ease. properly The district court dismissed this designed protect are visions individuals argument: against arbitrary discharges. They were narrowly delegates However to the designed protect plaintiffs from convention would have drafted the stat- legislative defining quali- future acts ute, it is clear the enactment of placing upon fications for or limitations great section left a deal of discre- public employment. legislature. tion to the state We do not argument, Plaintiffs’ contract clause read this section of the Louisiana Consti- short, sweeps broadly. nothing too There is tution, legislature a clear mandate to the meager interpreting ease law “defining regulat- a statute enact contract clause suggest it can be ing employment,” prohibiting dual as statutes, regulations, invoked to invalidate legislature passing particular from this policies change conditions or tеrms act. of employment for employees.16 stated, arguments For go pre- Plaintiffs’ would far to the reasons above we reverse vent enacting any finding Louisiana from future district court’s on legislation, rational, placing protection disposition however new clause and affirm its qualifications limitations of its plaintiffs’ process due and contract XIV, facts, 15(N)(1), appointing as to the La.Const. of art. La. shall be on the § (West 1977): authority. Stat.Ann.Const. 3 Employees rights obligations; dismiss- 17:462-64, (West 14. La.Rev.Stat.Ann. 521-25 al, etc., for cause. No in the State or Supp.1981). 1963 & Service, having acquired perma- Classified status, demoted, nent Civil Service shall be I, pass any 15. Art. 10: “No State shall ... § dismissed, against, except or discriminated impairing Obligation . . . Law of Contracts cause, expressed writing by ap- pointing authority, (a) proof The burden of appeal, facts, as to the shall .be on the Spannaus, 16. Neither Allied Structural Steel v. employee. X, 8(A), La.Const. of art. La.Stat.Ann. (1978) (applying salvage contract clause to (West 1977): Const. 2 private agreement contractual *8 between em Disciplinary Actions. No who has ployer employee), nor U.S. Trust Co. v. gained permanent status in the Classified Jersey, 1, 1505, 52 City subjectеd State or Service be shall to (1977) (contract L.Ed.2d 92 clause to disciplinary except action for cause ex- obligation in state’s to bondholders connection pressed writing. employee in A Classified compact), cases that interstate two recent subjected disciplinary to such action shall clause, long have revived the dormant contract right appeal appropriate have the of to the regulation dealt with a state’s of the conditions proof appeal, commission. The burden of employment. of state I that hope my few clauses Louisiana constitutional claims words of concurrence by verjuice, are not animated but I for relief. feel register my that I must dismay pros- at the part AFFIRMED in and REVERSED in pect being of bound Dukes. While sub- part. servient and to obedient the hierarchical Court, superiority Supreme I sound GOLDBERG, Judge, specially Circuit con- no proposition retreat from the that the curring: in ordinance that case was viola- appellees urged The have this Equal court to tive the of Protection Clause. How- ever, provisions my question strike down certain of beliefs on this are not Louisi- controlling equal there pro- here. If is an law,1 dual employment arguing ana’s problem presented by tection this Process, the statute violates Due Con- statute, provides isit Dukes which the stan- tract, and Equal Protection of Clauses woefully dard which we must act. I Judge Constitution. I concur with Gee and sorrowfully concede under the rule set pass find that law Louisiana’s does indeed progeny, forth in Dukes and its Louisiana’s However, constitutional I muster. wish to equal dual employment pro- law withstands add a few support panel words tection scrutiny. decision. But an Equal 2. ... Is There Protection Assuming Equal 1. There is an Protec- ? Problem Issue, Any- Dukes Controls and a question There is this threshold case thing Goes parties which to be needs addressed. The equal To the extent pro- that there is an and the District Court have assumed that problem case, presented tection in this poses this dual statute an resounding reverberating words of equal protection problem. extent To the Dukes,2 Judge cited in Gee’s footnote analytical dispute, has there been imprison my its holding concurrence. With controversy proper has focused Dukes, the Supreme Court has made it equal protection to be standard review this, clear that in a case such as we must However, applied. question I would wheth- apply the test of rationality”3 “minimum issue, er we even need to reach this for it and that this test means little more than “equal pro- this not be seems that an “anything goes.” case tection” at all. A, (West city reasonably Supp. exempt- 1. La.Rev.Stat.Ann. 42:63 E §§ could decide” that 1981). part ed “had vendors themselves become distinctive and charm that character distin- City Dukes,
2. of New Orleans v. guishes the Vieux Carre.” L.Ed.2d In that 2513, 2518, L.Ed.2d case, Supreme upheld Court a New Orleans purported pushcart ordinance which all ban decade, past Over course of the peddlers from the streets of the French Quar- protection something review has become of an ter, provided exemption but which an for two opthamological looking For exercise. chal- operating sellers who had been for more than statutes, lenged Supreme pre- has Court years. eight exemption conferred virtual cases, special scribed trifocals. In certain we monopoly upon these two vendors. others, scrutiny;” are to use “strict “interme- Court, Writing panel for a of this I held that this, scrutiny,” аs diate and in cases such we absolutely was there basis for rational be- are limited the test of “minimum rationali- lieving specially hot-dog the two favored ty.” “scrutiny” Of course the word connotes a (one appropriately vendors of whom was process whereby we make a examina- careful “Lucky Inc.”) Dog, named would be anything wrong. tion to see if fact the picturesque vintage. than sellers more recent case, for in mini- standard review called this We therefore concluded that the ordinance’s rationality, hardly mum can be termed special exemption viоlated the Protection Rather, at all. it is a standard invites us City Orleans, Clause. Dukes v. of New eyes cup imag- hands our then our over 1974). However, F.2d anything right with the ine there could be uphold officially this chose statute. cartel, opining sanctioned wiener that “[t]he *9 majority. How- question addressed mandates clause equal protection “The ever, majority in similar situ- has chosen to treat persons since similar treatment presents equal In an ante, at 131. this cause as one which ations.” scrutiny, it protection equal order to invoke issue, I in the alternative protection would challеnged established that must be finding concur people unequally; statute treats “anything goes” test survives the statute group or class singles particular out a law in Dukes. mandated However, special treatment. persons for group what we never been told have specially penalized or
class of is law.
advantaged by operation of this provides 42:63 E
La.Rev.Stat.Ann. simultaneously two shall hold jobs. government state or local
full-time deny any person not
The statute does job. sector right any one full-time TAYLOR, Jeffrey Byron every person denies Similarly, the law Plaintiff-Appellant, jobs. government full-time right to two unequal treat- being singled is out for Who CARLSON, Etc., al., foolish or et may ment? A statute indеed be Norman A. analysis considered, Defendants-Appellees. equal protection ill but legislative folly is dis- only triggered No. 81-1320 pensed unequally. Summary Calendar. any may indeed af- This law—like law — Appeals, Court of United States people ways, in different but fect different Fifth Circuit. an does not in and of itself make for this problem. majority As the equal protection 22, 1982. March out, pointed question the crucial has similarly whether the statute treats situat- This not people unequally.
ed statute does merely has said that no
do that. Louisiana simultaneously two full-time may
one hold jobs. Although it government
state or local in different people affect different single the law itself does not out
ways,4 penalty.
group special for a benefit equal I there is no
Because believe problem presented by this stat-
protection
ute, not reaсh the level of I would equally think of it m.p.h. highway speed provides as and we therefore limit The 55 protection problem. example posing equal familiar of a law that affects different an limit, ways, people speed em- which is not Louisiana’s dual in different but Like the thought equal protection prob- groups posing ployment of as an different statute also affects speed ways. people lem. The new limit has had a dramatic who hold Those in different jobs who were accustomed to government effect those most dra- are full-time two group peoplе driving m.p.h. job affected, has at 65 That matically the “one exceed contrast, something. give up limit; government had to only” who hold one those group always af- traveled at 55 is less affected; job who do not and those are less all, Finally, those who do not drive fected. job government unaffected. How- are hold a aren’t affected at all. applies ever, rule the dual because “right” everyone speed denying equally limit affects differ- is a rule which to all — ways, pose groups people jobs but the an ent in different does two —it special single a class for protection problem. law itself does not out applies to all drivers treatment. The rule