*3 Before STEPHENSON, Circuit Judge, LORD, and LARSON and Dis- Judges. trict MEMORANDUM DECISION LARSON, Judge. District brought plaintiffs The herein have They suit as class action. claim this represent various of individu- classes aggrieved op- als who have been Minneapolis, 197.45, Leventhal, eration of Minn.Stats. better Larry B. & Morley known as Preference Friedman and Collins Veterans’ Minn., Paul, Minn., major Orey, Buckley, The statute two Law.1 has Delores St. Annotated, been a resident of the 1. Minnesota state of Minnesota Statutes county, public appointments city, town, village, in and of the Preference district, political 1. Veteran The school or Subdivision subdivision defined. application which “veteran” as used in this section thereof to is made for word immediately any years ap preceding man or and means five his section 197.46 honorably plication, discharged state from or who enlisted from the woman Minnesota, persons navy, corps, army, and in marine who served or Women’s Corps military Auxiliary Army the United the active or naval service of any War, Spanish-Ameri government allied the Civil with United States War, Phillippine Insurrection, China War I States World or World War Expedition, any expedi II, honorably discharged or armed and have been Relief Congress therefrom, and who are has awarded citizens of tion for campaign badge medal, and were at or War States such citizens World United America the time of entrance into active serv the United States of such wherein Prance, England, ice, have been the state allied nations of and residents of and the engaged years immediately pre against in war of Minnesota five and others were ceding application Imperial their who enlisted German Government or any person who, allies, other from the state Minnesota. its 7, 1941, been hon veterans December Subd. war or after orably discharged Preference every pub- separated public appointments. or from That upon department the armed of the United lic all works branch of forces (1) having the coun- after on active the state Minnesota and served States training purposes ties, cities, duty towns, villages, than dis- school disability tricts, political incurred all other reason subdivisions duty, discharged serving agencies thereof, honorably is a on active who while States, preference and 1ms of the United shall be citizen entitled to grants a class of citizens an ab- face creates provisions.2 Subsection extends to it certain —veterans—and preference when to veterans solute expense of other citizens. at the initially appointed benefits service a civil alternative, passing seek job mark (provided score a examination). sever subsection have this Court civil service pro- one-time to veterans for grants a bonus Subsection 3 alone, it, un- motion to be points and declare receives the score veteran however, examination; constitutional. on a only used once history procedural case complex. Initially, each Plaintiffs assert veteran. defendant Jack- unopposed son’s motion to unconstitutional on its dismiss entire statute is ing honorably appointments, employment section to dis- *4 charged veteran, applicants therefor, or a reduction his of over other and compensation bring preferred persons intended to his about the thus be shall not resignation discharge, disqualified any position holding or shall entitle from honorably discharged veteran a such to hereinbefore mentioned on account of his right by any physical age of action therefor court of or reason of disabil- competent jurisdiction damages, provided age disability ity, for and such and persons responsible incompetent per- such officer and the render him does not to properly position for such if such refusal was wilful refusal form the duties of the personally therefor, applied shall liable and be for and when such shall veteran remedy right- apply appointment employment also for for mandamus for a for or un- ing wrong. 197.46, the der sections and the of- 197.45 ficer, person duty is, Subd. 3. Promotional examinations. board or whose any governmental agency having may be, appoint employ an estab- or to or such system person position place, lished civil service or merit where to fill such or shall applicant appointing anyone employing an passed and is a veteran he has before or position place, except examination, the he to fill such or where may points already qualified to have credit of said veteran has elect boon rating. position ap- the to examination The under civil service for plied decision the may for, investigation be to make such election made ei- make an the as to qualifications ther If before or after the examination. of said veteran for such place promotion position, good the made and the or and if election is he is of preclude character, perform gained, such election shall the moral and the du- point preference position applied by him, use of ties of a five further said promotions. provided, officer, name of the veteran as hereinbefore The said augmented person appoint or with such board or shall disabled veteran said veteran rating placed eligi- position place employment. on the list eligible to shall be of such or persons any governmental agency along having bles with other an position place, system, the the or but the name of established civil service or merit inquiry any applicant of a veteran be entered ahead non- no shall be made of shall ratings are the veteran when the same. for examination before such examination rights priv- veteran, to have as to Subd. Widows and whether or not he is nor ileges. giving of deceased veterans shall widows distinction be The made who, grading spouses the examination and the of disabled veterans or results the disability, ap- thereof on because of sucli unable account the fact that the plicant rights privi- qualify, veteran; provided, the and shall have all leges abridge any preference given a veteran this this shall not section to which veteran is or 197.46 entitled. All section governmental 1967, Ex.Sess., agencies notifying As Laws c. when amended May applicant passed, eff. § lie has in- shall right applicant form the of a veter- preference. proper 2. It the durational The be noted civil service should system authority certify residency requirement in sub or merit contained shall appointment appointing was his thority section 1 of declared to au- appoint case of shall Carter such veteran before unconstitutional (D.C.Minn. F.Supp. person appointed Gallagher, is certified v. 1971). appeal position having fill time for run for which the veteran taken, having passed appeal been and no stat has examination. provision pro- if that read as A refusal to allow ute should be longer part of it. and the were vided for next succeed- no unop- granted, as had was failed show a sub- himself Legion posed American motion of the stantial likelihood of success trial at potential injury Department to intervene fa- of Minnesota the balance of defendants, Additionally, there have vored as a defendant. plain- attempts by been several City Minneap- enjoin tiffs to both ACTION CLASS hiring City Paul from olis and St. plaintiffs claim to The numerous reflect- service lists basis civil represent per ing several distinct classes of veterans’ the addition of applica sons who have been harmed points applicants’ Both such scores. op- grounds no tion of There been 197.45.3 requests were denied Union, Minnesota Civil Liberties have been All those non-veterans who Organization solely employment National of Women. of the denied because pro- operations All who active have served on of the Veteran Preference duty Armed within United States within Minnesota Stat- visions contained oppor- pro- regulations Forces been denied the who utes ordinances tunity mulgated pursuant to utilize thereto. This class is advantages Joseph Koelfgren. represented by extended to veterans M. solely because not meet the resi- do who have All those non-veterans dency solely requirement imposed upon promotion, those because denied operation pro- who enlist Min- did not from State of of the Veterans Preference having nesota, been a resident of Stat- visions contained within Minnesota *5 period pro- regulations State of Minnesota for of and and ordinances utes mulgated pursuant years. represented by This N. class is thereto. This class is Lyle Philip Neese, represented by and H. A. Albert Prouse William Walton. who, inequality Singer Hugh All women because of the and D. Rohrbacher. programs opportunities responsi- of and directed who All those individuals bility have by supervision planning, guidance, their members of sex the branches of Military, placed ap- public agencies who, the are at United States the because of of competitive disadvantage operation plicability with men be- and of the Veterans operation provisions the the of Veterans cause of of Stat- Preference Minnesota provisions pro- regulations Preference contained within and ordinances and utes mulgated thereto, provide the Statutes and ordinances Minnesota are unable to regulations promulgated pro- staffing respective and thereto. within represented by solely grams Nel- agencies, This class is Jane com- and based on petence, son. and hence are unable to insure attempted peak efficiency pro- operation All to en- those individuals who at of military gram they agency list in the were United States but share for which and/or rejected physical compromising rea- responsibility, for service due their thus fully physically pride. fit for professionalism sons but who are and This class is public employment membership by are represented their current and the collective solely by hampered City Program, Minneapolis in their advancement Model of operation by Planning Policy of the Veterans Preference and and Committee provisions Gossett, Bond, contained within Minnesota William Dixon Darlene regulations and English, Schnoes, Statutes and ordinances and Robert Esther pursuant promulgated Walz, thereto. This class member of each as an individual by represented and Robert David Olson committee. said organizations Walter Johnson. interested All citizens and military past efficiency governmental All and current members of in maximum fulfilling prop- advancing units while public reserve who bodies and military par- obligation insuring usage taxpayer by their while revenue er approved ticipating respective governmental in a standard are bodies oppor- military program are denied the by personnel; qualified staffed the most tunity employment and to utilize equal employment insuring interested in advantages to veterans be- extended solely opportunities merit and based on duty status does not cause their active competence, affiliation rather than mere beyond period extend of six months. military service; interested with by represented Lester Ben- class is This son, insuring equalization opportunity Gillet, Charmoli, James James regardless positions achieve such of sex. John Sturner. League represented by employees This class are veterans All who Minneapolis, Minnesota as term of Women Voters defined continuing position by class, representa- defendants to of the entire and the fairly this suit in the form of a class action. tives assert that will and ad- determination, However, making equately protect its the interests pursuant 23(c)(1), requirements to wheth Rule as class. Thus the 23(a) of Rule er this action should be continued as a Additionally, are met. the rede- action, requirements class modify plaintiffs’ this Court is inclined fined class meets the 23(b)(2) statement of class Rule in that the defendants plaintiffs’ grounds es. The fact generally definition herein have applicable acted class, of the classes e., needs modification to the i. require given preference Court does not dismissal. to veterans as is Clarke, (D. quired by Thomas plaintiffs F.R.D. 245 Anderson, 197.45. If are Minn.1971); Dolgow successful, injunctive respect 43 F. relief with (E.D.N.Y.1968). appropri- R.D. to the class as a whole will be Therefore, may proceed ate. this suit judgment It is this Court’s a class action. proper definition of the class is set represented by The classes paragraphs plaintiffs’ out in and 6 of plaintiffs paragraphs named 7 and 8 complaint. Thus the class will consist of complaint capable are of clear “All those have been non-veterans who enough con definition and do not thus solely denied of the because proper Dolgow stitute a class. v. Ander operations of the Veterans Preference son, supra. provisions contained within Minnesota persons represented by regulations Those Statutes and Ordinances and paragraphs promulgated pursuant named 9-14 thereto” complaint all included 11those . . . who “[a] promotion, class as defined it is solely Court and denied because unnecessary operation complicate to further of the Veterans Preference having provisions action classes when numerous contained within Minnesota two sufficient. regulations Statutes and Ordinances and *6 promulgated pursuant thereto.”4 JURISDICTION
In a class so defined the number of persons included is so numerous that Plaintiffs assert that this Court joinder impracticable of all jurisdiction pursuant members is has to 28 § U.S.C. questions and 1343(3) there are (4) of law and fact and U.S.C. § common to the class. The claims of the Defendants who are connected with the representatives typical Minneapolis System are of the claims Civil Service have Statute, 197.45, purposes definition, Section but For who are not of the Court’s promotions by any person entitled to will “nonveteran” include who having virtue of used the does not within fall definition 197.45(1). afforded Section “veteran” as it is 197.45 defined § (3) present positions to achieve their Due to the decision in Gal- Carter v. thereby effectively supra, lagher, 2, F.Supp. 626, are excluded from note promotions jobs. persons future in their those whom the named represented paragraph complaint This is class David 9 of seek C. represent Patten and Edwin John Schonnesen. are now included recently All those non-veterans who have term “veteran” in § 197.45. position plaintiffs’ attained their current and whose It should also be noted prospects advancement, salary slightly in definition of the class been crease, seniority (the paragraph credit and third selection of modified word job assignments adversely complaint are affected 6 of the —“nonveterans” —has operation deleted) due to the those Areterans so to include provisions paragraph persons Preference contained within are described who complaint. Minnesota Statutes ordinances 13 of regulations promulgated pursuant thereto. represented by
This class is AVilliam Eck Finney. and AVilliam gives juris- an ab- Subsection 2 the Court is asserted that preference in jurisdic- 1343(3) solute confers since diction veterans, they provided min- involving meet the “personal only in cases applicants, requirements “prop- involving disputes imal rights,” not in passing e., have scored rights.” i. erty grade In other on civil service tests. argued, con this this case When passing words, all who score a subject much contro tention was must be mark on the civil service exam part versy courts of both appointed non-veteran, before However, subsequent events scholars.5 gardless of the relative scores provided au with an this Court individuals. various recent case In the thoritative answer. Corpora Plaintiffs cre- claim section Lynch v. Household Finance ates class citizens —“veterans”— L. tion, 1113, 538, 92 405 U.S. S.Ct. employ- to receive certain Supreme who able (1972), Court Ed.2d rights expense ment at the of all other clearly “personal proper rejected the — legislative classification, citizens. This ty” enunciated distinction first prohibited assert, by the Four- O., Hague v. S.Ct. C. I. U.S. (Stone, J., teenth Amendment in that denies 83 L.Ed. equal protection non-veterans concurring), recently resur and more by Judge laws. Friendly in rected Eisen 1969). Eastman, (2nd Cir. F.2d 560 analyzing equal protec impro This removes doubt as necessary tion claim it is first care
priety of
distinction.
such a
statutory
fully view the
classification.
authority
On
basis of this
general
great
rule
latitude
ju-
be no
doubt that' the Court has
legislatures
making
classifica
allowed
provisions
risdiction under the
U.
of 28
legislation.
in social and economic
tions
1343(3)
S.C. §
Levy
Louisiana,
88 S.Ct.
U.S.
(1968);
William
251 Commissioners, 330 By finding, Board of River Pilot the Court so Constitution. right 552, affecting 910, 91 1093 legislation 67 U.S. S.Ct. subjects L.Ed. (1947). scrutiny, is inimical to The statute situation a closer much only if a classi Amendment courts Fourteenth between invites conflict which grounds wholly type irrele con- fication rests legislature. of This except the state’s to the vant achievement when avoided should be flict right Maryland, objectives. 366 clearly McGowan v. foundation at the is which 1101, L.Ed.2d government 393 involved. 81 S.Ct. 6 system is U.S. our (1961). presumption legislature’s There con- Only then should legislatures subject constitu state have acted judgment sidered despite that, practice, tionally the fact “compelling The interest” test. state inequality. may public fairly a law result some “right for considered to be Statutory legis discrimination in social employment,” is used as the term may clearly lation not be set if “funda- aside set plaintiffs, not such a justify Therefore, it. right.” facts conceived to defend- mental Metropolitan Casualty Insurance v. to show burden Co. ants were under no Brownell, compelling 55 79 U.S. S.Ct. state interest. (1935); Lindsley Natural L.Ed. 1070 v. plaintiffs been un have Since Co., Carbonic Gas attempt to shift their successful (1911). L.Ed. proof, now determine we must burden appear principal There to be three bur sustained their whether have giv- historically reasons which have been pre den and overcome the traditional sumption giving preference justify en to to veter- constitutionality. In order ans. presumption, in it is to overcome the grati- upon owes debt of cumbent State attackers — prove there is no ration tude to those veterans who herein —to served peril. Preference nation in time of State basis for Veterans’ al Kangas words, plaintiffs McDonald, ex In other rel. Statute. legisla showing (1933). that the burden N.W. Minn. arbitrarily capriciously in ture acted likely possess 2. A veteran cour- enacting 197.45, and that the classifi constancy, age, habits of obedience non-veter cation between veterans and fidelity, which valuable Mere ans is without rational basis. qualifications office showing ly ac that the affects the law Mitchell, 68 holder. Goodrich v. groups differently than some tivities (1904). P. Kan. legislature others that the could in reha- 3. Veterans should be aided acted another is not suffi manner bilitation and relocation because legislative By cient to invalidate action. military disrupted service has legislation necessity cer all involves a employment. their normal life and tain amount of classification which Note, L.Rev. 165 26 Wash. & Lee given rights people some or are (1966). carry caused burdens others may not While this Court believe Corrigan, are not. Truax 257 U.S. good granting these are reasons for 42 S.Ct. L.Ed. veterans, the same to- ken,
Although proof, precise absence of it cannot no formula say evaluating vio that the had no rational a claim that a statute concluding equal protection reasons basis for lates the clause has appoint- justified preferring developed by Supreme Court, generally held that a ment to civil service. Minn.Stats. nonetheless it is enacting 197.45(2). much evidence state has wide discretion While *9 showing presented groups effect citi laws which affect some been job market, differently preference zens than others. Kotch v. veterans’ 252 Many the record is previously barren facts State courts have jus- would to show that these three tend constitutionality considered the of simi- 9 preference
tifications
statutes;
are without reasonable basis.
lar veterans’
some
Federal
validity
courts have ruled on the
repaying
Plaintiffs have asserted
preference;10
of Federal
all,
veterans’
gratitude”
pref-
by granting
a “debt
on the basis of
one more of the ra-
employment
erence in
not rational.
is
above,
tionales set out
have found them
They
paid
that a
assert
“debt” could
to have a rational basis.
In the absence
ways. This,
many
however,
any proof
of
tional,
that these reasons are irra-
They
point.
misses the
have the burden
unwilling
this Court is
to rule
showing
legislature could
not of
that the
contrary
weighty
authority.
way
differently, but
have acted
.that the
While
may
analysis
methods of constitutional
legislature
acted was
changed
have
many
since
of these
rationality. They
not met
have
this
decided,
cases were
question
nonetheless the basic
burden.
rationality
always
had to
Likewise,
present-
this
has been
Court
be answered. There
no
is
reason
ed with no evidence from which it can think that reasons which were consid-
military training
not
conclude
does
ered
years ago
rational several
have be-
prepare veterans to be
civil serv-
better
come
age.
less rational with
employees
Again,
ice
than non-veterans.
prevail
In order to
in their at
might
agree that
while we
not
veterans’
2,
tack on
subsection
had the
training prepares them
for civil
better
presenting
burden
showing
evidence
service work than those who have not
justifications
that none of the three
was
trained,
been so
there are no facts
ev-
They
negate
rational.
have failed to
it
un-
idence which would show that was
any of
Therefore,
them.
it is the con
reasonable for
so con-
judgment
sidered
Court
clude.
Minn.Stats,
subsection 2 of
Finally, plaintiffs
come
have failed to
equal protection
violative of the
forward with evidence which would clause of the Fourteenth Amendment of
legis-
show that it was irrational for the
the Constitution of the United States.
preference in
lature to conclude that a
employment would
in a veteran’s
aid
PROMOTIONAL PREFERENCE
readjustment
to civilian life. While
provisions
it
clear-
Unless
are other
shown that
of subsection 2 would not have
ways
been en-
to aid
rehabilitation and reloca-
separately
granting
acted
tion,
from
subsec-
those
not shown that
3,
3,
this Court
find subsection
irrational.
360,
Apparently
Seattle,
P.
Raines v.
134 Wash.
235
all
kind
States have some
giving preference
(1925).
of law
to veterans
968
Additionally,
Supreme
employment.
Kimbrough
Glen,
the Minnesota
Veterans,
Veter-
American
Court has declared
Minnesota
Law of
at 1177-1238.
Statute
be constitu-
ans’ Preference
The courts of several
have ruled on
States
occasions,
general question
on several different
tional
of the constitution
ality
was
ex rel.
latest
of which
State
of veterans’
and without
Kangas McDonald,
157,
exception they
Minn.
246
v.
188
have all
be con
ruled
noted,
(1933).
People
It should be
N.W. 900
stitutional.
ex rel. Sellers v.
however,
Brady,
578,
;
the current statute has
262 Ill.
N.E. 1
105
changed
significantly
Marshalltown,
128,
last
since
v.
Shaw
131 Iowa
104
(1905) ;
Mitchell,
due
the Minnesota Court
considered
N.W. 1121
v.
Goodrich
(1904) ;
to the addition of subsection
P.
Ricks
68 Kan.
75
1034
preference,
Department
Service,
v.
of State
Civil
(1942) ; Opinion of
La.
253
the
reason
that
is no
to believe
alone,
United
unconstitutional.
be
preference provision
570, 585,
added in
20
Jackson, 390
v.
States
much older ini-
(1968);
was so tied to the
1967
1209
88 S.Ct.
L.Ed.2d
preference
severed.
it
be
Corporation
tial
that
cannot
Refining
Champlin
v.
Co.
52
Commission, 286 U.S.
severed
subsection 3
Since
(1932).
It is evident
559,
fundamental hiring circum- would under those *12 subject to the test whether
stances be compelling inter- state is a not there
or
est. or
Likewise, question of whether state, to the feder- contrasted any part government, in the rais- al army ing compensating is sub-
ject to considerable doubt. however, feel, as a matter I returning plight
practicality that he should
veteran is manner, even at the ex- in this warded against discriminating others.
pense of must de- at this result one
To arrive general principles lawof from the
viate situations, applied I there- join I with the shall fore concluded majority opinion. in the
result reached Plaintiff, WIEBOLDT, Jr.,
William H. Stanley al., METZ et Defendants.
M.
No. Civ. Court, States District
United D. New York. S.
Feb.