Kenneth R. Mancuso v. James L. Taft, Mayor

MANCUSO, Kenneth R. Plaintiff, Appellee, al., TAFT, Mayor, L. et

James Defendants, Appellants.

No. 72-1180. Appeals,

United States Court

First Circuit.

Argued Sept. 1972.

Decided March Palombo, Jr., City Sol.,

Peter Jeremiah, Jr., whom Jeremiah S. Asst. City Sol., brief, appellants. Gonnella, Ralph Providence, I., J. R. appellee. COFFIN, Judge, Before Chief Mc CAMPBELL, ENTEE and Circuit Judges.

COFFIN, Judge. Chief Mancuso, police Kenneth a full time officer and civil em- classified service ployee City Cranston, Rhode Island, filed as a for nomina- representative tion as to the Rhode Is- ]_§Q Assembly land General on October pending ap resolution of the The issue. day Mayor On same ap pellant mayor subsequently advised began enforcing process impose Cranston pellee only a ten- he would Home Char- day Rule if the suspension and dismissal “continuing prohibits ter which appellee suit were unsuccessful. classified service of the after be- court lost the election. district coming a candidate for nomination or summary granted appellee’s motion for any public to election office.” finding Mancuso judgment merits, 14.- on the § promptly filed in the Amendment, suit district court 09(c) of the First violative seeking pursuant relief to 42 city U.S.C. §§ The (D.R.I.1972). asserting ju- and 1988 and Although choose appealed. we officials risdiction under 28 U.S.C. and 28 equal analyze § to the charter U.S.C. 2201 and 2202.1 to Pursuant terms, §§ First protection the rather than agreement parties, an of the enforce- employed dis Amendment terms ment of was charter restrained judgment.2 court, trict affirm against sought employee. relief en also 1. Mancuso as While the candidate (f) city- of of 14.09 § forcement as an official construction authoritative “making directly charter, prohibits per- which statute, this clarification has indirectly if a member of classified or not have Mancuso should suaded us any campaign (f). service contribution to attack to subsection allowed been organization any political interpretation city’s funds of reasonable. is any taking for of both subsections It makes sense out political any part management surplusage. in the The inter- renders neither organization pretation or in the' conduct existence of bolstered political campaign (e), proscribing subsection, further than in the another rights funds, of the a citizen ex exercise in the which stands solicitation opinion press e., specific (f), posture and to cast his vote.” i. as a more same city appellee’s challenged standing prohibition, This is neces- which functional (f) embraced, sarily since it to attack subsection had as are insofar candidates attempted (c). concerned, nor threatened neither to en the flat ban of against entirely that section Mancuso. force reasonable to conclude seems Employees designed State Ass’n v. Wisconsin controls are not these narrower Bd., addition, major Wisconsin Natural Resources Supp. 298 F. offender. for the (W.D.Wis.1969) case, threatening city’s 344-345 in this en- action Employees]. (c), only [hereinafter ’Wisconsin State consistent with forcement argued factors, interpretation. Mancuso that since he had vio These taken this challenge together, lated the of that subsection and terms render Mancuso’s already speculative (f) since the had “noticed” federal too for subsection by attempting judicial a conduct to enforce related this resolution time. provision against him, challenged, Appellee he should the dis- be able n (f). invalidated, city’s attack subsection district Civil trict court standing parts 3(c) (f) X, ruled court proceeded Mancuso had which Service Rule (f) provision. implement to firid subsection For uncon the charter noted, just stitutional. Whether or not actions ad- we do not reasons parties crystallized judicate validity part 3(f). have so as to We present justiciable controversy barrier, however, a as to see no our considera- (f) very question. challenge subsection is a close tion both subsection Tatum, (c) part 3(c) Laird v. 2318, S.Ct. charter and ; (1972) Epperson Rules, although 33 L.Ed.2d 154 for we refer convenience Arkansas, only provision. hereafter charter (1968) ; Baggett appellee clearly a cause of Since the Bullitt, action under we need U.S.C. L.Ed.2d 377 not consider whether he have 'also could' However, proceeded provisions another factor has made it . under the other he unnecessary for us decide that difficult invoked. argument city repre- At oral issue. (f) this appellee sented to court that subsection 2. The below attacked the Cranston designed to cover the activities of em- on both Amend- First ployees participate campaigns grounds. who in the ment and We people recognize of other and that subsection that some basic must issues (c) is analysis intended to cover the activities faced under either but choose analyzed Standing First Amendment Grayned equal protection an City context. acknowledge outset, we At the 104, 106-107, Rockford, impression that while first that our (1972).3 might be made on the charter assault office, seeking ap city employees other pellee Second, that both we believe poor position to com inwas may challenge on voters candidates and plain. official policeman, He is grounds its face candidacy important upon exercise of called im restriction because discretion, as candidate for and he ran voting rights. pact A candidate position partisan for the nomination office, appellee, is so such as the very representative for dis of. state dependent upon closely related to and policeman. trict served for him and his those who wish to vote litigation reasons, independent But several vitally their will so affect singly persuasive, deem collec we rights will relax rule courts tively, the conclusion that have led us to (which designed practice to assure vi right pro appellee’s equal to raise this representation of the vital inter brant depend challenge on the tection does non-parties) permit a ests of and will being proper possibility of his conduct candidate to raise the constitutional ly narrowly proscribed a more drawn rights Carter, v. 405 voters. Bullock provision. 134, 849, 92 L.Ed.2d 92 U.S. S.Ct. 31 (1972); McKeon, F.Supp. First, opinion, v. 335 for rea Green we are of the aff’d, (E.D.Mich.1971), subsequently, 630 468 F.2d that the sons stated char (6th 1972); generally significantly Ei see the 883 Cir. ter affects Baird, 438, 444-446, rights by senstadt v. 405 U.S. of First Amendment exercise 1029, (1972); 92 public employees. S.Ct. 31 L.Ed.2d 349 In such Cranston’s 479, circumstances, binding Connecticut, precedent Griswold v. 381 U.S. —Good (1965). 1678, ing Wilson, 518, L.Ed.2d 85 S.Ct. 14 510 v. 405 U.S. 17-14-2, Moreover, (1972); 1103, we under L.Ed.2d Dom note that 31 408 § Island, Pfister, 479, General Laws of a candi v. Rhode browski 380 U.S. 85 S. (1965); 1116, qualified date must himself be a voter 14 L.Ed.2d 22 United Ct. Raines, represent. the district which seeks to v. 362 80 States U.S. S. Hence, (1960); Goguen sense, only 519, appellee in one seeks Ct. 4 L.Ed.2d 524 rights Smith, (1st 14, to assert v. 1972); 471 F.2d Dec. his own class. 88 Cir. may Conlisk, That voters and see also Muller v. 429 candidates attack affecting 1970) voting (7th restrictions F.2d 901 well as the Cir. — as rights avoiding underlying policy indisputable. sound chilling impact on their seems face Bullock, supra; Fortson, piecemeal adjudication v. Jenness 403 431, 1970, require of fundamental 91 29 L.Ed.2d considera S.Ct. 554 (1971); Rhodes, tion Williams v. of a facial attack one affected 393 U.S. 23, regulation. why 5, (1968); 21 L.Ed.2d 24 We see no reason standing change this rule should when Green, supra; Edwards, Manson v. 345 equal to review the under our discussion of the First Amendment protection indicates, clause. We do this because interests we would reach the of the charter treats same result were we to use direct First public office, implicat analysis. to run for Amendment only prin First Amendment Judge Campbell’s 3. We do not read dissent ciples principles but also the established denying existence First dealing public’s right in the cases with the right here, Amendment the charter meaningful vote, to an unfettered provision’s impact serious on the exer- usually equal pro cases framed in an right, appellee’s cise of and thus Carter, tection context. Bullock v. standing to mount facial attack. 134, 849, 405 92 S.Ct. balancing Rather his of the interests of (1972) ; Rhodes, 92 Williams v. 393 U.S. municipality and citizen indicates to us 23, 5, adjudication 89 21 S.Ct. L.Ed.2d 24 As an of the merits. (E.D.Mich.1972); F.Supp. protection Mc- equal claims, find that both Kaminsky, F.Supp. Kinney precedent reject ap- policy and sound Mogk (M.D.Ala.1972); plication. of De- know We of no case (E.D.Mich.1971) troit, Supreme Court has refused to con- court). regard, (three-judge this In sider a facial chal- disagreement to be lenge seems dissent’s one within affected standard, propriety, not the classification.4 Nor has explicitly review. considered whether subject properly claimant could to a Finally, we believe regulation. Rather, cas- narrower all regulation case, im or not analyzed es, simply the Court has voting plicates Amendment First challenged classification face.5 rights, of a the terms classi one within eschewed We believe the Court facially challenge fication analysis area “hard in this because core” Although grounds. equal legislation. judicial rule, invitation language of’its the Raines 362 U.S. at cover would seem a court S.Ct. forces Facial consideration Wilson, 93 L.Ed. Wade S.Ct. Optical ; (1949) Lee Williamson pro Co., consider L.Ed. Court refused challenge Illinois, ; (1955) a rule court furnish 351 to Griffin v. tection U.S. 563 12, only transcript ; 585, (1956) ing to 891 one 100 L.Ed. co-defendants S.Ct. 76 appeal. Although 457, Doud, Morey the Court shared on 354 77 S.Ct. be v. U.S. reasoning (1957) ; Raines, 1344, that claim 1485 McGowan cited 1 L.Ed.2d separate copy ant, 420, 1101, Maryland, a had been loaned who 366 81 S.Ct. v. U.S. General, Attorney (1961) ; could not v. Baxstrom State 393 6 L.Ed.2d 107, 760, Herold, had not ad which attack the classification versely 15 U.S. 86 S.Ct. 383 286, Dandridge (1966) ; 90 him. Id. at S.Ct. affected v. 620 L.Ed.2d 1153, 471, Williams, 501. 90 S.Ct. 288, Texas, (1970) ; 223 32 S.Ct. Collins v. U.S. v. 491 Richardson 25 L.Ed.2d 286, 254, Belcher, 78, 56 439 from which the L.Ed. 30 404 U.S. suggestive quotes language (1971) ; Strange, of a dissent v. 231 James L.Ed.2d repre exception, 2027, 128, us to hard-core seems to 92 32 L.Ed.2d 407 S.Ct. U.S. principle. only Baird, (1972) ; supra. There an sent osteopath challenged the Wade Eisenstadt v. 600 process on due Justice’s lone dissent Even the Chief protection grounds equal only grounds Texas statute on- the Baird was making, practicing respondent criminal there within the af was not money having e., distributors, class, medicine for without i. fected authorized registered appropriate supra, grounds with the Board. 4 not on the see n. challenge possibly subject The held that his Court the class but one within statutory complain. need definition medicine not rules to broad cannot less recently since he never tried be considered had to has We note Court get permitted upheld a license assumed which the Court a facial attack on granted would have been had he submitted the Texas abortion statute based- process grounds due professional diploma. despite dissenting case thus mem- proposition objection plaintiff may seems stand for the to not ber’s eligible statutory arguably standing challenge one bene for have had to statute may challenge been, fits the statute as have face since she as sought filing complaint, until unconstitutional he has the time of benefits, e., i. been denied the is within the her third trimester as to which within deprived Bingaman, permitted regulation v. class. See Morf the point even to the Court 756, prohibition. Wade, U.S. S.Ct. 80 L.Ed. Roe (1936) ; Maryland, 705, 113, Hendrick (U.S. 22, 1973). S.Ct. L.Ed. Jan. Since Court (1915) ; analysis employ Standard Stock Food Co. v. the same there used here, Wright, regulation e., i. whether the 56 L.Ed. 1197 a fundamental narrow- affects ly promote compelling drawn to See, g., Oklahoma, interest, 5. e. Skinner we deem the facial consideration ; reading (1942) supportive past 86 L.Ed. 1665 in equal protection Doe our Express Railway Agency York, New cases. protec Ironically, then, equal (or disapprove) analyze approve tion. unambiguous litigation broad, regulation tion only written one —that classifications, judicial would body. court- restraint legislative To close require than plaintiffs to to facial rather re- seem us hard core door on house adjudication.6 therefore (and individual We nec- precise quires determination standing. appellee permissible hold that has essarily approval) legislation. of narrower outer limits determinations such The number Scrutiny Standard of only by the number limited complaint, simply put, Appellee’s differently plaintiffs. In con- situated citizenry divided its Cranston only requires adjudication trast, facial groups purposes of candida- two for into factors the various consideration group, cy in one all for office: suggest possibility of less servants, prohib- classified civil who forcing spe- alternatives, without drastic candidates; and, filing ited from permissible limits. cific definition citizens, other, free to run all other conduct, disorderly Moreover, unlike general age office, subject roughly de- peace, or other breach of requirements. determin- and similar statutory proscriptions, classifica- fined discrimination, ing propriety of this subjected chal- tions nature of the first examine the we must lenge usually question as to the no leave infringed by to as- interests subject regulation. persons Indi- proper of review. certain the standard ap- adjudications would therefore vidual repetitive pear unnecessarily impose has tended scrutiny judicial possibly interven- review of two one standards use standing Judge Campbell’s suggestion judicial efficiency, mention mere dependent parties (including rule in upon cases af- fairness to the e., allow- government) the nature of the attack —i. ad- would dictate fected plaintiff challenge if judication a hard core individual’s claims of all of an example. on attack based underinclusiveness Al- an at once. This case is though denying standing generally problems if his claim but find overinelusiveness we prohibition regarding integrity is that the is overinclusive— ban the rationale —the us, wholly apart candidacy covering many seems from the to would whose prudential honesty— pose danger system’s reasons noted above and the to the no apply difficulty his formula for over- as under- wo see the charter challenges, efficiency inelusiveness be to without in to the inclusive relation authority unnecessary many covering and an strait- other out- rationale —not jacketing parties. the court and As em- which could also drain side activities authorities, Grayned, supra, ployee energy in- co-workers. and distract appellee volved an overinelusiveness claim—that an to be limited to Were the picketing peaceful complaint, municipality the ordinance banned the underinclusive defense, non-peaeeful, picket- deprived strongest as well as non-labor of its would be ing by compelling integrity an admitted hard core in the interest —raised appellee Moreover, offender. 408 U.S. at 2294. had S.Ct. its civil service. admittedly limited, Skinner was decided on under- that he was to be so known might grounds, inclusiveness but came to the able show others have been to designated by city, working Court —and won the concurrence of the for the but primarily being Chief on overinelusive- in the Bule XV as Service Civil Justice — (not independent ness claims all three-time thieves as service—such unclassified parents potentially dangerous engineers, appraisers, manage- off- real estate spring), though phrased process political ap- consultants, in due even ment and explicitly discretionary pointees terms. Baird was func- decided on —exercised underinclusiveness, possessed both over- confidential informa- tions and tion, presented 1029. S.Ct. See also and hence risks of abuse posed Bishop, power by United States v. 469 F.2d similar to those (1st 1972). employees subject Cir. the ban. We do not Baird, moreover, gain circumscribing plain- Skinner a reveal see the so problems practicality matter, pro- tiff, defendant, or, a a for that posal. Many cases involve both under- court. and overinelusiveness claims. Concern for particular Cranston determining a when review, to arrive at a hence standard of violates state action public we consider also Amendment. the Fourteenth clause of unhampered, vote, concerning unconditioned economic action For state reflected here the voters’ interest regulation taxation, the Court has having pool review, upholding a broad of candidates from employed relaxed to select their challenged officials. it is sustained action guidance legitimate Because in- state rational some on this matter is more recent and of River Port Kotch v. Bd. terest. See direct, turn to this latter Comm’rs, we dimension Pilot candidacy problem first. For state 91 L.Ed. 1093. infringes substantially fun- action which interests, however, Voting Rights the Court damental A. subjected the state to stricter action Bullock, In the Chief Justice scrutiny, requiring the state to show every that not restric stated necessary promote its action is right sufficiently tion affects the vote compelling interest.7 state require a strict re view of restriction. task evaluating candidacy restric federal courts to “examine a realis interlocking inter are two

tions there light tic the extent and nature of their fundamental, ests, that must be both impact on voters.” 405 U.S. at naturally consider considered. We S.Ct. at The Bullock Court cited rights plaintiff in claim asserted persuaded two it factors which to use opportunity to a candi become required strict review a law But whenever date for office. filing potential pay candidates fees regulates to be totalling they upwards of before $1000 office, a candidate for come placed primary be ballot: vote; regulates the citizen’s pool of candidates available for person persons whose substantially the voters was selection choice for is affected voters’ impact diminished and the of the re Burger As Justice official. Chief according fell on striction citizens of Bullock v. stated the recent case Although their economic status. Carter, face somewhat different situation “[T]he Bullock, from that we find similar rights of candi- voters and the indicating here substantial and factors sep- dates do not lend to neat themselves rights. significant effect voters’ aration; laws that affect candidates al- theoretical, ways initially have at least some cor- in We note that while Bullock Therefore, filing large they relative effect on in voters.” fees were so impact properly indirectly pool candidates, of order to consider the limited the entirely right 7. is not clear whether since the franchise in to exercise allegation any infringement preserva- unimpaired of a funda- a free and manner is triggers political mental interest strict review or tive of other basic civil and infringement any alleged infringement rights, must be sub- requires right stantial before the statute more citizens must be care- to vote Compare fully meticulously than a “reasonableness” review. and scrutinized.”] Carter, 134, 143, substantiality requirement might Bullock U.S. Since a 849, 856, (1972) infringement, L.Ed.2d 92 into the be read word course, every in- [“Of limitation or of no moment. Never- matter be voting theless, cidental burden on the exercise of we need not decide this issue be- rights subject stringent considering that, standard cause we find after review”, citing us, McDonald v. here a sub- Board of matter before there is Election, voting and First stantial burden on both (1969)] Reynolds 22 L.Ed.2d 739 with Amendment sufficient to invoke Sims, rigor strict review. [“Especially potential directly by cult candidate: pool decision and substantial- here the give up public job or by either his ly prohibition on the candi- he must limited give candidacy. up people he must specific class dacies —the employees of Cranston. As Secondly, the Cranston F.Supp. noted, at district court group specific unique with excludes a recog- other have and as courts City qualifications office. nized, Bagley Washington see, g., e. government employees their have made District, Hospital Township 65 Cal.2d gov They daily the work of work. see Cal.Rptr. P.2d 409 department as ernment within their and find of citizens who the number department with the their deals employment in the sector local, government, parts and other years.8 grown tremendously To over ought state, They county, national. seeking pub- prohibit these citizens from pinpoint problems for to be able a substantial con- lic office constitutes effectively mulate solutions much more candidacy pool.9 potential traction of the many experi than other citizens. significant Moreover, this number insight garnered day-to ence people who are the Cranston covered day bureaucracy grappling seeking in rule deterred from are partic could well individuals make these very does effective manner. Cranston ularly For voters. attractive system easy not have a which makes it reasons, then, these we find that public employee for the to accommodate fundamental to vote job his interest and his interest significantly affected § seeking Rather, 14.- elective office. the Cranston charter and that therefore resignation 09(c), by requiring “after becoming nomination or strict must review be extremely applied.10 election” necessitates an diffi- According figures, potential to latest census stfmtial didacy there contraction of the can approximately 2,700,000 pool choice, federal em- thus of voter ployees 9,900,000 employees upon of state focuses lack of “invidious government, excluding personnel burden, and local economic” loch, such as that in Bul finding scrutiny inapplica of the armed Census, forces. Bureau strict Although Statistical Abstract of the United ble. Bulloch con impact States sidered the economic as one of the triggering scrutiny two factors strict 9. We do not know the number of case, say, it did not and we do potential candidates excluded meant, believe that it could have Cranston charter only economic with a restrictions sub large filing as the number excluded upon stantial effect voter choice demand required by fees a statute like that con- rigorous Rhodes, review. In Williams v. sidered Bulloch. The Court there supra, Court found large found that the fees were so restricting minority party statutes access many effectively pre- candidates would be heavily to the ballot burdened the cluded from access to the ballot. 405 U.S. required equal pro to vote and thus strict hand, 92 S.Ct. 849. theOn other tection review. We note that other courts undoubtedly the Chief Justice noted that residency, Mogk have held durational some candidates of modest means could (E.D. Detroit, v. Mich.1971) positions by soliciting secure ballot con- (three-judge court); McKin supporters. tributions from friends and ney Kaminsky, (M.D. v. 340 289 contrast, because the flat exclusion Ala.1972) ; Gangemi Rosengard, 44 may civil servants this charter ef- 166, age N.J. restrictions, A.2d 665 and greater proportional fectuate con- Edwards, Manson v. F. candidacy pool. Regard- traction of the Supp. (E.D.Mich.1972), candidacy on compares scope less of how one the require scrutiny strict even without con Bulloch, exclusion here with that how- sideration of whether another funda ever, we conclude that the exclusion in the interest, right mental such as the present case is a substantial one. travel, was involved. dissent, although denying 10. The the ban here effects a sub- protected by Rights activities are All these Amendment B. First man- First if done in a the Amendment inquire in nowWe narrowly defined ner consistent with a running for the individual terest safety. concept public and order protected public interest office is an Louisiana, 536, 554-555, Cox v. Amendment, law so the First 453, (1965). infringes inter significantly depend likely The of means will choice given review.11 strict est must be energy on the amount of time directly Supreme decid has never Court expend individual wishes to and on his However, point. Williams ed this perception to the meth- most effective suggests Rhodes, strongly supra, message pub- projecting od of his seeking activity public lic. But commitment are among protected First those evolving phenomena. What is an effec- Moreover, two state su Amendment. protest point tive means at one for facially found, in preme courts have may time not seem so effective at lat- validating employee public on flat bans participates er date. The who dilettante challenged by deputy sher candidacies picket may in a line to devote ad- decide iffs, right for office that the run ditional ex- time resources to his right. Minielly v. First Amendment pressive activity. As his commitment (1966) State, P.2d Or. increases, expres- the means effective County (en banc); City and Kinnear v. changes, expressive quality sion but the Francisco, Cal. of San 61 Cal.2d may remains constant. He decide to (en (1964) Rptr. 392 P.2d 391 picket line, publish lead the or to banc). Fort v. Civil Service See also newspaper. point At in time one Comm’n, Cal.Rptr. 61 Cal.2d may way most decide effective banc); (en De 392 P.2d 385 give expression to his views and to Wilson, N.J.Super. Stefano get appropriate audi- attention of an (1967). 233 A.2d 682 We come public ence tois become a candidate for same conclusion. generally office—means considered among appropriate most for those for to run desiring govern- change in to effect our free office touches on two fundamental systems. may mental to become He seek expression freedom individual doms: general by filing in a elec- a candidate Freedom of freedom association. seeking independent12 as an tion guarantees expression to the individual political party. the nomination opportunity a letter to the to write instance, individu- And in the latter newspaper, speak local in a out activity expressive dimen- has two al’s advocating park, distribute handbills urging views that his sions: besides reform, picket an official radical official, grievances.

building redress of the views of elected seek appellee’s Rhodes, poses supra, can- hurdle to In Williams v. severe Court didacy his his exercise and hence to held First Amendment were above, rights. purposes equal pro As noted “fundamental” First Amendment merely present Depart would-be review. Police does not tection See also requirements Chicago Mosley, before minor ment of candidate with ballot; place being to a entitled employee above, to make As noted it forces job all-or-nothing between Bullock stated that choice re- candidacy. impact strictions substantial ap- voters would receive the strict review propriate legislation independent often candidates 12. While affects elections, partisan We vote. need not be unsuccessful decide judicial fact that local the a notice of similar threshold determina- take nature, nonpartisan required regard often tion is with an in- elections are to contests, partisan inde- right office, run for and that even dividual’s to since we occasionally provision pendent win. the do that here at im- candidates find issue making expression concept effec attempting a the is to become he also Rhodes, political party See Williams spokesman whose tive. for a beyond the program at extends substantive ; J., concurring) (Harlan, question. particular But Cran- office cf. Button, type 429- of its a NAACP that certain ston said may L.Ed.2d public employee, not citizenry, engage Party may less access to the ballot becomes not become a candidate meaningful promotes of those any campaign activity selected that some carry party’s machinery party to public office. himself a candidate for as may people precluded programs to the are be has stifled what Thus the doing nominees important expression from because those an indi- so the most namely summon, servants. that which civil vidual can willing effectuate, by to he would be right run for to Whether action, he were means of concrete point of from the is looked at office be to selected the voters. expression or associa of individual view ignore impossible to is effectiveness, opportunities wide tional right to run that additional fact for the individual who seeks exist to asso office affects freedom also may candidacy alone office. fact supra, Rhodes, ciate. In Williams previously me open doors of the closed an invalidate used strict review to may to be invited dia. The candidate system vir made Ohio election shows; on radio talk discuss his views tually parties to se impossible for third may equal time on be to secure he able place The Court cure a on the ballot. pro campaign his television gram; elaborate pro found the First Amendment may newspapers cover form tected ing freedom associate may candidacy; to debate be invited promoting political party and a groups that thereto before had various infringed when that freedom himof or his views. fore never heard effectively party ac the state denied short, up candidacy opens the fact of In machinery. cess its electoral variety possibilities communicative us Cranston before charter most that are diligent available even rights, albeit associational affects loyal picketers or the most slightly way. in a different An individ today, party A view followers. may join participate in ual decide to or running is inter not an organization political party that an or Amendment, protected by the First est may shares He even form his beliefs. stemming us outlook seems to group new to forward And his ideas. public office was an earlier era when juncture supporters some fellow preserve professional party that he is members decide wealthy.13 Consequently we hold that carry person group’s ideal the fray. stand protected is First both into ard the electoral To thus re right in Amendment and a fundamental options political strict organization available to legislative terest. Hence classifica Cranston significantly in tion that burdens effec has done to limit the subjected association; terest must strict tiveness and the freedom intimately associate related protection review.14 (1944), Thus we cannot concur proposition with the court L.Ed. for the Dept., in Johnson v. Civil right State Service that “[t]he to become a candidate office, 280 Minn. 157 N.W.2d 747 for state like the to vote for usually when it states office is the election of state officers ... sought purpose earning “for a liv- privilege citizenshij), advancing political one’s career.” citizenship.” Snowden, of national plaintiff sought appellant relief under 14. The the Four- refers to Snowden Hughes, 397, 400, Rights teenth Amendment Civil

197 years. twenty-five past in the of the doctrine conclusion that § Our pertinently the ob As district court receive strict must Cranston charter served, scrutiny F.Supp. ex 341 the made with panded use of the overbreadth doctrine cognizance city’s assertion the full of Mitchell, evaluating which areas in protected statutes touch v. Workers Public that United 556, the casts First Amendment 75, L.Ed. 754 91 67 S.Ct. 330 U.S. up- validity employ Supreme on (1947), Court serious doubt ing the of in the which re for provision Hatch a “reasonableness” standard the federal a of held Act, requires regulating expres provisions of the relaxed “reasona- view a more activity public employees. of We deem sive of review. bleness” standard controlling question Thompson, 456, on this 448 F.2d 471- Hobbs v. Mitchell not First, (5th 1971); im- most and Fort v. Civil Serv for reasons. 475 Cir. several Comm’n, supra; Mitchell of portant, that the the fact National Ass’n ice with, not and did Civil not v. States Court was faced Letter Carriers United challenge. on, protection (D.D. equal Comm’n, F.Supp. an 346 578 rule Service Supreme 1058, Indeed, deci- juris. Court’s C.1972), prob. noted, until the 409 U.S. 497, Bolling Sharpe, (Dec. 11, 560, in 347 sion 93 S.Ct. Oklahoma, 693, 1972). it was 98 L.Ed. see 74 S.Ct. But Broadrick v. protection equal clause 711, (W.D.Okl.1972), the clear through fully applicable, 1058, the Fifth juris. noted, prob. was leg- clause, process 1972). 550, 11, due (Dec. Amendment’s To the moreover, extent, such as the islation the Mitchell the in which was considered Hatch Act relied on the notion that Court Court, although Moreover, employment the privilege Mitchell. rather than a First, petitioner’s response right, in validi and that the constitutional Fifth, Ninth, legislative regulation Tenth Amendment ty on turns rights expression proper pigeon-holing claims considered activity, political dis- there was no privileges, 330 99 n. the U.S. at impact of the restrictions cussion precedential even value is voting rights. Mitchell, questionable. the more Since decisions, Court, in an unbroken line Second, in note that even area, right-privilege Mitchell the distinc the First Amendment the abolished Randall, Speiser its vitali been drained of have tion. See case ty development of L.Ed.2d constitutional 78 S.Ct. claiming unjustified Act, legislative against classi election officials had why pri- improperly Snowden the results of A reason certified second fications. product mary controlling it is election had been a is that is not part opinion quoted theory of the division candidate. an outlived interpretation responsibilities. dealt with the first state federal speaks right very quote clause the Fourteenth Amendment and right speaks also ruled that to become run state office for elections, privilege right cites state office was not or im- vote for state munity Suttles, under national Constitution. Breedlove sup Proceeding subsequent clauses of the 82 L.Ed. Court, Amendment, port. found But Elections, protection equal Harper Virginia Bd. of claim could not statutory grounded L. in the classification holding Breedlove, legislature, legislation made for the Ed.2d 169 overruled harmless; protected right rather face held the Constitution the state’s denial of in state elections from to vote poll Finally, proved by showing imposition tax. it had of a case before to be question arbitrary application in this case statute for to run election Thus the Court did is not limited board. question prohibits candidacies reach the of whether the First office but Amendment, through Fourteenth national offices. Amendment, protected run 198 of the civil service tial character Pickering Educa- (1958); v. Board of po- seriously people jeopardized 1731, if 20 L. be 563, tion, 88 S.Ct. U.S. 391 authority used discretion sitions their (1968); of v. Richard- Graham Ed.2d 1848, electoral ambitions 365, L. to forward their son, 91 S.Ct. 403 U.S. public Similar- generally than the welfare. (1971). Van rather Ed.2d 534 employee pressured ly public other Right-Privi- if a Alstyne, of the Demise corrupt Law, employees engage fellow lege in Constitutional Distinction promises practices for (1968). in return In addi- Harv.L.Rev. 81 tion, post-election reward, employee or be- factual distinctions we note power the he was invoked seeking office present case the Mitchell and tween special legal significance. favors from extract we deem superiors, the civil service would be Hatch the Mitchell treated United States injury. Conversely, irreparable done appellee challenges char- Act where public, fellow-employees, city provision members Cranston ter might involved, supervisors request themselves hence strict decisis stare is might im- Kuhn, 258, favors from properly adjust 407 U.S. 92 S.Ct. Flood cf. 2099, own their official behav- (1972); Hatch L.Ed.2d 728 ior towards him. Even if none of these provision only prohibited partisan Act political activity actually materialize, possibili- abuses while the Cranston seriously might ty of their occurrence partisan nonpar- charter covers both public’s pub- erode the confidence its activity; provision bar tisan and the at employees. reputation im- lic For the specifically limits the to become partiality probably as crucial is candidate for while itself; impartiality knowledge that

Mitchell the Court was with faced signifi- in the run- clerk assessor’s office who is arguably restrictions on the less zoning ning ac- local board has political participa- cant of routine could Finally, cess confidential files tion. we note that the constitu- furthering provide “pressure” points for tionality of the Hatch Act analo- and an campaign regardless gous is presently destructive state statute before actually advan- the clerk takes Court. National Ass’n Letter Car- tage opportunities. supra. of his For all of Broadrick, riers and find in- these reasons we that the state compelling deed has in main- Community Interest taining honesty impartiality proceeding In to the second its work force. stage protection review, of active however, not, however, contempo do do see We consider some rary exclusionary deci measure taken Cran relevance the Mitchell prohibition Carriers, flat on office-seek sion. National Ass’n ston—a ing Letter supra. all of all kinds kinds of order char Cranston necessary employees reasonably ter to withstand even strict scruti —as city ny, this interest. to satisfaction of state must show the exclu government Carter, 144, 92 of all Bullock v. employees sion candidacy necessary pointed Marshall achieve a com S.Ct. As Justice pelling Blumstein, out in Dunn 343, interest. Kramer Union District, 995, 1003, Free School 31 L.Ed.2d affecting constitu “[s]tatutes And, ‘pre as stated in Mitchell other cas tional must be drawn dealing statutes, Button, es with similar see cision’. NAACP v. Employees, supra; Wisconsin State L.Ed.2d 405 Broadrick, supra, government (1963); Robel, at all lev United States protect els has a substantial interest in 19 L.Ed. integrity (1967)”. of its civil service. 2d 508 For sets of rea three obviously impar- conceivable that the sons we conclude the Cranston employment objective should pursues of hard-won compete office. heavy-handed and he for elected manner desire in a too far equal protec- fall under hence must might promote inter- First, the nature we think tion clause. integrity est civil service regulation prophylactic broad —a through dismissal, enforcing, disci- unnecessary may to fulfillment be rule— of the granting pline, prosecution, or or criminal rules Second, city’s objective. even interests, statutes that treat conflict of prophylactic rule some sort bribery, or other of official cor- forms pro- may required, provision here be By attacking ruption. problem thus types for all hibits candidacies office, using directly, pro- instead a broad pose including many would phylactic rule, city pursue its could problems the law is at which none of the burdening objective unduly without Third, provision excludes aimed. rights its em- First Amendment types em- all the candidacies of ployees voting rights and the of its citi- any attempt ployees, to limit ex- without Blumstein, zens. Last term in Dunn v. posi- employees to whose clusion those analogous Court faced an corrup- to make them vulnerable tions question when the Tennessee State of interest. tion conflicts of asserted that the of “ballot box purity” justified imposition of one approaches than less restrictive As to year residency require- and three month rule, prophylactic exists the de there ments before a citizen could vote. Jus- of absence.15 vice of leave Some stated, alia, Marshall inter that Ten- tice per system would of absence of leaves had of crimi- nessee available a number employee off to take time mit the punish nal statutes that could used to be assuring candidacy pursue to while unnecessary in- voter fraud without job be him his old should his fringement on the newcomer’s Moreover, a leave of ab unsuccessful. vote. Id. at 995.16 many policy sence would eliminate Similarly, appears from the record engaging ques opportunities in the for charter con- this case that the Cranston practices de that the statute is tionable signed might provisions tains some used be prevent. campaigning, While against opportunistic public employees.17 feel no be the candidate would conflict tween publicly for election and his his desire prophylactic Even some sort rule discretion, any nor entrusted necessary, say that we cannot Cran- persuade conflict between his efforts to tailoring put ston much effort into and his access confidential attempts narrow to match adopting documents. But instead of prohibition problem. with the policy, of absence Cran reasonable leave public em- a Cranston forbids running any office, any- ployee that makes ston has chosen a for prohibition security where. The is not limited public employee cast off the 17. The 15. Employees, supra. denounced law.”) justify permit (fear Cf. false section “ (b) wilfully (N.D.Ohio Gray Schneider of fraudulent following practices statement, certificate, 14.09 of the as offenses and system 1971) ; State, corruptly since Toledo, solicitations L.Ed. 155 Wisconsin State “frauds punished by mark, grade, charter: making any prohibited cannot be visions tablished tempting test held or certification or ter or made for, money, appointment rating ^[*] (d) giving, appointment, or account of or under the or or impartial service any thereunder. ^[*] report the rules commit manner rendering or other valuable promotion.” provisions promotion execution of such ^[*] any any in connection with committing examination or or regulations fraud ^[*] of this appointment or paying proposed prevent- or at- chap- thing ^[*] pro- es- Cranston, em- rather restrictions administrative but offices loeal ployees participate in even to who either deci- offices and to statewide extends sion-making us or at least have some for access is difficult offices.18 national running concerning policy public employee to information matters see ' Congress poses justifiable than are much more restric- United States employees, who, quite civil service tions on industrial but threat to the the same government employee were for the fact that the owns if he the same in, are, purposes running plant they the con- work for a local office where information, provided to official identi- access and information tacts cally position situated to all other industrial job directly related Thus, poten- Phila- seeking, workers. worker and hence where was distinguished greater. delphia Nor mint could for various abuses tial secretary from a in an office the De- except of does the Cranston charter partment Agriculture; employee of so also could a in public who works Cranston janitor ju- in schools of Cranston aspires in another local but to office distinguished be comptroller from an risdiction, probably of assistant his town most city. again pre- of the same A second Here the charter residence. only line of distinction that pose focuses can a cludes candidacies which type employee by is illustrated Fi- to the service. remote threat nally, civil supra. Minielly, pro- cases of Kinnear and not the charter does limit office-seeking, both these cases a civil partisan service but hibition to deputy public employees decided to run for the elected of- sterilizes those also fice sheriff. The in nonpartisan courts both cases elective of- who seek no-candidacy ques- felt in Mitchell laws fice. The statute reviewed activity, tion were much too partisan political broad indicated was limited to perhaps situation sensitive other courts have and since time enough justify a flat partisan-nonpartisan rule was one in distinc- found the Kinnear, which an inferior office su- elec- a material one. See tion pra; torally challenged superi- Employees, supra; his immediate Wisconsin State considerations, or. Gray Toledo, Given all supra. line these While v. given think adequate Cranston has nonpartisan partisan can between problem narrowing attention to by systems true often be whose blurred disguised the terms of by its charter to deal with the characters are given the names specific architects, kinds of conflict-of-interest them their it seems problems truly it parti- seeks avoid. clear that concerns temptations san office and the fosters convincing not find We also do the ar- sufficiently different those in- from guments campaigning after-hours regu- volved an office removed from energy will drain em- party politics lar distinctive warrant ployee incapable to the extent that he is treatment in a charter of this sort. performing effectively job on-the-job campaigning The third inevitable and last area of excessive coverage candidacy discussion of his dis- overinclusive of the Cran- will Although rupt type ston the work of others. it is not to the relates sought, indisputable city compel- type that the but em- ling seeking ployee performance of offi- the office. As Justice Douglas pointed work, cial out in the exclusion is not well-tai- his dissent Mitchell, lored to effectuate that interest. Pre- 330 U.S. 67 S.Ct. 486, McCormack, Adams, 395 See 315 1295 Powell Stack Cf. 1944, (N.D.Fla.1970) L.Ed.2d where the court struck (N.D.Cal. Sept. v. Brown down a similar because it added Storer 8, 1972), prob. juris. noted, qualification 965, run for national (U.S.Mar. Congress, I, S.Ct. in violation of Article Sec- 1973). tion States United Constitution. hold- sumably the individu- That civil servants fire treated. other could employment clearly less have a sensitive offices if he shirks al stronger point disrupts (the largely relied responsibilities work of case Also, efficiency upon court) wholly irrele- rationale seems others. signifi- arguments here, simply vant to which is to both the issue common cantly applies equally plaintiff denied whether or not this rights underinclusive. guaranteed non-political, extra- number to him the to a Consti- well prohib- that are activities tution. curricular Finally, charter. the Cranston ited under- This is not a case of irrational cam- the connection between after-hours be, it would for exam- inclusiveness—as paigning interest seems and the state police ple, barred had uniformed been tenuous; many em- cases detectives allowed but ag- campaign ployee would be able to Chicago Department run. See Police gressively and still continue do his Mosley, job well. (1972); Grayned L.Ed.2d the Cranston char- Rockland, Since necessary further (1972); is not com- ter L.Ed.2d 222 v. Okla- Skinner interest, pelling up- homa, ’state it cannot be 86 L. (1942). Being held under placed clause. Ed. in a judgment of the District Court is The class drawn so as to exclude others simi- larly insofar District affirmed equal be a situated would denial against granted relief of the protection subjected since one to bur- part 3(c) charter and of Civil Service irrationally dens from which others are Rule X. excused. necessarily

But it does not follow that being may placed CAMPBELL, (dissent- in a class Judge Circuit situated, persons identically include gives not ing). com- one constitutional cause respectfully I from the dissent Court’s plaint. may, as The others’ misfortune opinion. here, conceivable unfair- constitute no completely I am unable to see how the legitimately person to clas- ness plaintiff, police officer, can be said might (and be sified.1 Plaintiff what protection equal denied have been of the sub-class, enforce- considered law against persons law as not in the classi- personnel) ment would no seem to have City fied service of Cranston. simply to a windfall because (as my speculate I believe brothers that others within the classi- legitimate etc.) concede) (librarians, any, inter- fied service if had est, might compelling one, object keeping even a its reason to have better (at personnel least) politics. being law enforcement out I do not see barred Thus, given complaints— politics. hypothetical of local the nature how their office, improperly of his he was not not before are us—demonstrate say overinclusion, particu plaintiff’s impropriety 1. I do not that which .shows no larly coupled necessary classification, with definition of a is either or desir- sim ple patently objectionable, position able, places which is class us since it fully give equal deciding never to an have been rise issues which subject ap parties. one that attack otherwise I believe aired interested Hero, ques- regulation. propriate however, we resolve constitutional court should complex dealing very necessary with a overall to deal tions to the extent litigants up rights real before class made sub-classes of the numerous employees particularly each its is a un- of which own I this it. think unique judi position. in which resolve think that case I do not fortunate analysis majority. swoop, in a cial fell case one broad issues considered burdening speech any respect freedom denied statute plaintiff inwas grounds may properly attacked protection.2 be might regu- by one who overbreadth Texas, 223 U.S. In Collins v. narrowly statute. a more drawn lated 286, 288, 56 L.Ed. 439 (1st Smith, Goguen v. F.2d 88 Cir. unregistered osteopath (1912), where an strongest 1972). statements that challenged registration laws candidacy may political be a First doctors, said, Mr. Holmes “On Justice Amendment Rhodes, are Williams opinion these facts we are L. plaintiff in error fails to show recently as Ed.2d 24 But as wrong upon him statute inflicts Carter, Bullock v. 849, S.Ct. contrary 14th Amendment. to the L.Ed.2d 92 the Court has suffered, . If he has we are candidacy analysis limited restric- speculate upon upon not called cases, other grounds. tions to by It is toor decide whether the followers yet every no restric- means clear people of Christian Science or other tion on is such a burden might in some event have cause [ever] speech” “freedom of First as warrant complain.” See United States v. (much overbreadth) Amendment analysis. less Raines, U.S. (1960). speech, in direct Free L.Ed.2d 524 sense, presumed usual to facilitate the Baird, Eisenstadt working government. question of free I majority’s implicit assumption arbitrary likewise a case of underindu.- political candidacy of one (contraception could not siveness be de- employ taxpayers full-time is en- single nied to the but allowed to the pre- titled to the benefit of the same being married). Baird’s allowed to sumption. Simply political because can- raise the of the unmarried raises didacy upon has an ultimate effect free analogous a different issue— speech does not mean that it is free present plaintiff’s right, which I do not speech, or that it reflects values which question, to raise the of those respects indistinguishable. are in all might who vote for him. present case, In the we deal with sev- inquiry Thus I would limit interests, importance eral all of to the whether a plaintiff civil servant like the working government: of free constitutionally can be barred law (and of a citizen to seek office of voters seeking political from type office of the him), body to elect plaintiff seeking; has been and I would politic control, and to ensure hold barred, that just he can be so faithfulness, employ. those I judges may appropriately be barred see no constitutional reason exalt the politics. from other, one over the and hence I no see analysis reason to favor overbreadth Admittedly analyzed if the case is By doing judicial- this situation. ly so First equal pro- Amendment rather than priority establish a as to which the grounds, tection precedent there is Constitution is silent. an approach. “overbreadth” To the rule plaintiff that rights not assert For the same reason that I do not fa- others, Raines, above, analysis, question vor ap- overbreadth I exception notes the plication “compelling interest” cases speech.” of “freedom of Thus a Carter, above, standard. Bullock v. indi- not, yet moreover, 2. I do concede the va- whether or not the broad re- lidity hypothetical complaints. of such respect striction is warranted with many job categories There are many different differing positions. The reason for City the classified service of dealing plaintiff’s, else’s, with not someone Cranston; I think a much better record case is that we are not well informed as to necessary attempt is before we to decide the latter. applicable standard cates burden economic invidious where al., et Plaintiffs- Albert C. TONEY qualified can- upon an otherwise placed Appellees, apply go far as not so does didate. restric- non-invidious the standard al., Defendants- WHITE et N. A. notions upon civic reasonable tions based Appellants. eliminating the civil politics America, STATES UNITED service.3 Plaintiff-Appellee, im- Here, compelling standard plain- upon long focus as we so material Myrtis al., BISHOP et Defendants- test, case; under even tiff’s Appellants. in restrict- plainly City warranted No. 72-3307. police officers. candidacy of as- one assisted my Appeals, Yet brothers United States Court they Fifth Circuit. come pect of the standard when putative within “others” deal March officers. enforcement the class —non-law 1, 1973. Rehearing June Granted challenged argue They since legislation to the extent can stand interest”, “compelling there is a restrictive alterna- follow the least

must regulating civil serv- all

tive when hold, instead, normal

ants. I would upon analysis, de- based

termining the charter basis, should be has a rational

applied.

I would reverse the decision complaint.

district court and dismiss many engages politics. attempted If one one can 3. I who have not to discuss run, support then one should also be able reasons can be advanced to candidacy. promote There are I think it en another’s the statute tirely issue. personnel point where the of a state beside the the federal states twenty-five agency customarily qpend their time before Hatch Act sustained years ago. promoting I serious- Public Workers elections candidates. United judicial Mitchell, ly the wisdom decisions doubt citizenry validity (and removing (1947). flics L.Ed. 754 Its from their legislation) power legislatures their deal of certain similar state much of again practically, imperfectly, be re mat- under will soon such attack determined. National Ass’n of Letter ters. Com’n, difficulty judicial Car. v. United States C. S. intervention grant (D.D.C.1972) ; suggested review this field is Broadrick ed, Board, Personnel 338 F. Oklahoma State Supp. grant (W.D.Okl.1972), The decision the latter review likely ed, case seems to control what we do 34 L.Ed. principle here. I see small at stake: 2d 510 where one issue before no taxpayers alleged of the citizens and is an denial they employees attempt equal protection deal as best can with because the frustrating problem agencies were and difficult of some but not all state activity. who, political regulate precluded If an how to ostensibly, and control those (and attempt scope of “serve” them whose sal to reduce the is made issue, they Many legislation pay). in here one can aries issues are possible : attacks volved conflict of foresee further arbitrary argument upon who, example, between one teaches at based board; a school and is also on the school imderinclusiveness. impact employees of on fellow civil

Case Details

Case Name: Kenneth R. Mancuso v. James L. Taft, Mayor

Court Name: Court of Appeals for the First Circuit

Date Published: Mar 20, 1973

Citation: 476 F.2d 187

Docket Number: 72-1180

Court Abbreviation: 1st Cir.