National Ass'n of Letter Carriers v. United States Civil Service Commission

Georgia Georgia, v. Branch Jackson cogently demonstrate, Texas,

v. so penalty

death under such statutes is degrading punish-

unusually severe infrequently arbitrarily

ment; it is by contemporary

applied; rejected it is necessary society; as a and it is not

terrent to crime. therefore, hold, air that the We 1472(i)) (49

piracy statute U.S.C. § permits ei insofar as unconstitutional impose juries judges ther penalty.

death

NATIONAL ASSOCIATION OF LETTER CARRIERS, AFL-CIO, al., et Plaintiffs,

UNITED STATES CIVIL SERVICE al., COMMISSION et Defendants.

Civ. A. No. 577-71. Court,

United States District District Columbia.

July 31, 1972. brought

have this action behalf class employees seeking of all federal a de- judgment claratory that 5 U.S.C. 7324 § (a) provision (2), the so-called prohibits Hatch Act certain which fed- employees taking eral “an active part management political po- or in campaigns,” litical is unconstitutional.1 urging that enforcement the chal- lenged provisions enjoined, plaintiffs vague, overly assert the Act broad, and in conflict with First Amendment to the Constitution of the United States. the Civil Defendants Commission, members, Service its three Secretary Health, and the Education Finding question Welfare. sub- light stantial in constitu- current doctrine, three-judge tional this court pursuant was to 28 U.S.C. convened §§ A 2284. record was voluminous developed by testimony stipulation, some taken, fully was issues been have argued. briefed and obvious, There an well-established governmental restricting po- interest in Matthews, Jr., Washington, Thomas C. employees litical activities federal C., plaintiffs. D. for long which asserted enact- was before Anderson, Dept. Justice, David Many for ment of the Hatch Act. federal defendants. employees prevented from run- ning engaging political office and MacKINNON, Before Judge Circuit po- partisan the more obvious forms PARKER, GESELL and District passage litical since of the Judges. Civil Act in Service 1883.2 pertinent provides The Hatch Act OPINION AND ORDER part any employee Executive an GESELL, Judge: District agency of the District or The National Association of of not take an active Columbia employees management Letter and six Carriers federal cam- or employees The National Association of Letter Car state the re- terests of employees quirements 23(a) riers and six federal Federal ade Rule of the quate representatives Procedure, record the class of all Rules of Civil employees affected the Hatch the six federal does not establish that particular plaintiffs and this class is thus have within cer committee broadly 23(b) (1) (b) sufficiently membership tified under Rules based employees representation of the Federal ade- Rules of of all state Civil Procedure. hand, varying quately protect On the other six local area the diverse and Demo Republican cratic and covered committees interests of state joined plaintiffs Accordingly, 1502(a) this case also as and seek § scope chal- broaden the of this directs action to chal will be considered lenge 1502(a) lenge em- §§ 5 U.S.C. restrictions and 1501 impose ployees, identical restrictions U.S.C. categories employees. on certain of state plaintiffs passage None individual Civil Service or the Since starting Presidents, Carriers, National Association of Letter various however, Arthur, properly represent rules can issued executive the in- President paigns partisan nature and of a is sub- challenged the Act here ject suspension provides: to removal without pay appropriateness for violation. phrase “an active governmental objective was rec- political management ognized by Supreme Court of the campaigns” politi- means those acts of it endorsed ob- United States when cal campaign- jectives Act. of the Hatch United Pub- ing which were on the Mitchell, 75, lic 330 U.S. Workers v. employees competitive in the service 556, (1947); 67 91 L.Ed. 754 S.Ct. July 19, 1940, before by cf. determina- Civil Oklahoma v. United States Service tions of the Civil Service Commission 127, 544, Commission, 67 S.Ct. prescribed rules the Presi- (1947). 91 L.Ed. 794 7324(a). dent. § ambiguous This definition is issue, however, unsat- is A narrower isfactory. incorporates by presented specifically reference here which was left Mitchell,3 3,000 rulings over made litigation Commis- This unresolved sion between objec 1940. rul- These focuses not on merits of ings, Congress which were not before the tive of on manner Hatch Act but passed, when the Act was in have now which defined the conduct been assembled and are in purported the record of prohibit in name of this case.4 “political management When examined cam sweep a meaning paigns.” indefiniteness one that no The and effect of the days against attempt would even in prohibitions to de- First measured analyzed against fend if properly strictures now Amendment standards the First having examples Amendment. A qualified plaintiffs few raised a apparent. Discipli- suffice to matter, make this direct a class in interest as nary against action taken admittedly was federal and this troublesome consti employees longer in situations em- tutional where the issue can no be avoided. Reed, majority speaking listing governmental 3. Justice for the restrictions on em ployees Mitchell, stated, competitive in the federal service We need to examine no at which further enforced Civil Service validity time into the of the definition Commission. President Roose political activity requir velt increased the restrictions 103-104, (emphasis compliance. Act, ed at at stricter added; omitted). August enacted footnote ch. 53 Stat. 1147-49, significantly July amended, And his dissent Justice Black stated 19, 1940, 767-72, ch. Stat. extend restrictions, Furthermore, employees ed the same what with some ex ceptions, consistently employees do, can to all or cannot with the Execu rules, Department regulations, tive civil service Federal various Govern ment, etc., government warnings, great all a is matter of so person Columbia, uncertainty the District that no can and all even em ployees guess. agencies intelligent of state or local make an Id. at “whose principal employment at connection with an financed rulings vary incorporated 4. These part by grants whole or in by loans made penalized employees, vague, gen- lists Aegn the United or a Federal States descriptions political activity eric ” cy. 1501(4), . . . §§ 5 U.S.C. engaged in, descrip- lengthy, narrative 1502, and 1See United States tions of the activities with a discussion Activity CivilService Commission Political penalty at the end of the received. The Reporter (1971) [hereafter Introduction complete compilation rulings of these was Rose, ; cited as A Critical Look P.A.R.] introduced into the record this ease. the Hatch 75 Harv.Rev. general rulings, For a of these see index (1962). 1 P.A.R. iii-xxvi ployee engaged (15) to some extent one’s allowed name to asso- objectionable following: po- ciated with an affair; litical election; wager (1) a made anonymous political authored an (2) offensively “political discussed a communication.5 question”; As if of the latent over- conscious President; (3) disparaged the vagueness rulings breadth and party while denounced hearings, which were never disclosed alcohol; jovial mood due to debates, reports committee the Act engaged (5) publicly in a significant qualifying provi- contains a discussion; states, sion which “An . . letter; wrote a right retains to vote he chooses (7) publicly expressed express and to his opinion; subjects and candidates.” 5 U.S.C. § 7324(b). immediately It is unclear how article; (8) political published a incorporation reference (9) qualifying op- political provision on button intended a while were wore together. glance they duty; ap- erate first At contradictory. pear mutually One fixes (10) facts stated unsubstantiated other makes the definition and the candidate; ancestry aof about definition fluid. remarks; (11) made offensive incorporation prior rulings The discourage (12) spouse’s failed to a seems to intended have been activity; any possible expan- as a serve on brake meaning phrase sion of the “an (13) disapproval of stated treatment active acting a of veterans while as political campaigns” beyond what was Legion Legion in a officer closed generally phrase understood that un- meeting; interpretations der Commission as rulings (14) views; partisan incorporated was 1940.6 The were examples categories specific sys- (using notation

5. For listed above index, suggested (1971), id. in 1 i ii with P.A.R. reference tem iii-xxvi) at see: #63, 160; (1) Atkins, 31 Index AR #24, Hiner, 141; (2) Index 32 AR #24, Dunham, 144; (3) Index 32 AR #24, Brock, 146; (4) Index AR #24, Mure, 148; (5) Index 34 AR #64, Cain, 143; (6) Index 32 AR Chester, 143; (7) #24, 32 AR Index #51, Nihart, 143; (8) 32 AR Index #7, Ratcliffe, 144; (9) 34 AR Index #54, Smith, 343; (10) Index 1922 Min. 151; #24, Edmonds, AR Index 209; #17, Brock, (12) Index 1935 Min. #25, Davis, 154; Min. Index 145; #24, Castleberry, (14) Index 32 AR #35, Woody, 670; (15) Index Min. #9, MacDonald, Index 1933 Min. 293. Act, reported provision that was enacted out substituted the Section 15 of the granted committee, final version as a floor The have amendment. would rule- (Mar. Cong.Rec. Commission, making power was offered 1o 1940). During debate, on the debate after Senator Hatch two weeks recently sponsored a generally upper limit on The Commission as an

to serve the Political expansions of three-volume called interpretations work future Reporter activity. (P.A.R.) Activities which cata- previously prohibited rulings logues in provision in commendable detail the qualifying section 7324 The Analy- subject to made the Act since (b) that indicates rulings the Com- being in some sis of shows or modified cut back ignored many generally way with the mission has consistent more definite rulings questioned “rights” expression. pre-1940 its where Amendment First opinion. appears to involve conduct however, difficulty, is that con- The political opinion Expressions stitutionally acceptable mechanism was permitted except when circum- accomplishing provided this result. discipli- particular stances shown a ambiguities defect Grave remain. finding nary support action underlying purpose lies basic political question ex- was partisan activi- certain to limit pressed the intent but rather ties However, influencing put- others.9 drafting. worded Prohibitions ting enforcement aside the fact generalities precision. lack There any rulings still remains can read the is no No one standard. threat, administrative actions prohibits.7 Act and ascertain what Commission, if un- Civil Service even any nor other Neither the Commission qualifiedly accepted as administra- rulemaking agency given power. was gloss place still fed- tive intimately con- Indeed even those most employee to if he ventures eral at hazard cerned enforcement doubt with its legislative speak he sought political will on matter since a and have clarification.8 justify tegrity version, as to civil service Senator Hatch substituted final rights. political infringement very me of individual to to be said that “it seemed give it to define in that fails It is uncertain not the Commission wise to precision types clarity power interpret of ac- in the and to further more prohibited.” Statement id. at 2937- tivities which are Id. at See future.” 2949. Chairman, Macy, (1939) ; Jr., Cong.Rec. United 50; of John W. 9621-9674 before Rose, Commission at Civil Service Look States and A Critical Activity supra on Political note Commission May (CPA) on Personnel Government points 7. At in the several Senate debates CPA, Report, 15, 1967, at emphatically pointed it was out that none during accompanied Macy was Chairman of the Senators knew what the incor- testimony by members two the other this porated rulings Cong.Rec. said. 86 and its the Civil Service Commission (remarks : Minton “No one Senator Counsel, time the and General Senate, not the Sen- the floor of the even expressly present endorsed Chairman Hatch], [Senator ator from New Mexico Macy’s behalf statement Chairman regula- now knows what these rules and Id. at 24. the Commission. (remarks are.”) ; id. tions at 2947 rulings generally say very Commission See “I it is care- Senator Brown: Digest (1971), Digest legislation Nos. P.A.R. less effect to write into Watson, rulings were pages such Two law rules 268-270. statute of civil-service Digest P-1221-48, interpretations by in which 1 P.A.R. entry and Civil Service opin- expresses knowing Commission, is “Where what we without subjects or candidates doing.”). ions on voters, actions influence order to changed have since 1940. “Conditions opinion expressions constitute such prohibitions prior imposed to that meaning ‘campaigning’ within may pres- light time be not all valid P-1530-55, Wilson, Act,” id. at ent circumstances. entry state- whether is “Test of essence, notwithstanding pres- “In opinion’ ‘expression permitted ment is present provision, qualifying lan- ent expression of mere is a whether there guage is broad and somewhat somewhat premedita- opinion, is a there whether or in the sense that uncertain. is broad political actions influence ted effort to prohibit it be construed to certain could others.” may sufficiently det- activities that not be efficiency neutrality, in- rimental to the or right relating terpretations of the constitutional acts his words not know when persists. opinion subjects to state still offend. will gavé not insufficient standards newspaper letter to a a writes If he authority essential also withheld the program endorsed seeking support for a to create essen- Commission enable the pollution party, such a general, imprecise clarity tial out influence? intend to control, does he prohibition enacted. many hear what people can see How says an intent before he writes sweeping un- capable of The Act is be found? his will fluence consequence application. It is of no even he pollster? respond a Can Can he rulings may be particular prior that partly rally and sit on attend charged ignored by presently those presence platform his will where pub- with enforcement. Conscientious Union, member of a noted? If he is backwards lic servants still lean over lodge, P-TA, he can or a fraternal and, rulings, by these dormant to abide organization urge pass a resolu- say any event, ex- no one can to what appear he issue? Can tion on a interpretations the Constitution tent ques- panel to discuss a on a television changed an an- them.10 Nor have swer, many may political im- that for tion suggest, feebly defendants as the all, are, poli- port? after issues What intelligence people know of common year—China, campaign crime tical in a par- comprehended active and what inflation, foreign aid, streets, na- activity. Uncertainties tisan tional intent to influence debt? Does produce excessive abound will likely pay appear depending on his more caution and stifle and acts words title, grade, he on his or on to whom explicitly prohibited. Small wonder talks? even enforcement concerned with those uncertainty persist un- uncertainty Confusion con- share fusion, sense of der intent-to-influence formula. attests.11 as the record before us Any public con- generalized, vague conscientious servant prohibitions Thus do job security cerned of his misapplied for the become misunderstood power of the latent in his expression conscious millions and serve limit discipline supervisor if employees, him trans- he of Federal and Government gresses questioned families, society po- conduct into areas of even their a where continuously robust, uninhibited, as to must feel doubt speech litical and say politically. The public can do or wide-open what he at issues are debate unacceptable self-government. result is when measured the essence of vagueness and need to eliminate government form of that Ours not a of free sensitive area overbreadth citizens, prosper particularly if Fed- will expression. servants, eral Government must live has The Civil Commission Service sorry” than “better safe mottoes be responsibly attempting im- acted your and stick neck out.” Gov- “don’t possible applying task of the uncertain course, should, employment ernment carry of conflicting provisions Act. upon some limitations well-defined efforts, however, thwarted Its participation partisan political mat- given authority fact no that was ters, may not of reason rigidly under the Act to accommodate objective this large segment such a desirable neutralize rulings incorporated prior rapidly populace ex- evolving interpretations court pressing any any “political” opinion on First Amendment and incon- the basic intent of influ- issue with the somehow sistency rulings prior and, encing every- between else. In end someone Keyishian Regents, supra. v. Board of 1 1. See note 8 Cf. 589, 599-602, 87 S.Ct. L. (1987). Ed.2d 629 political, speech Supreme thing appear all may The Court of United conformity influence, may has intend States left doubt on this score: regi- imposed of more in the fashion emphasize again once We governments.

mented, less democratic regulation “[precision of must be closely touchstone ing an area so touch a statute This is classic case a freedoms,” precious our most “chilling application in its which has permis . standards “[f]or unacceptable the First effect” statutory vagueness strict in sible ex Amendment. The of a shorthand use expression. area free . legal terminology pression such as this in freedoms First Amendment Because signifi sometimes tends to obfuscate breathing gov survive, space need underlying principle. Com cance of the' mencing may regulate the area ernment im series of around 1940 specificity.” narrow . with portant cases, First Su Amendment guess must conduct or one what When “chilling preme evolved effect” Court may position, him his utterance lose deal with of over- doctrine to the vice necessarily “steer far wider will one leg vagueness in attendant breadth and ” . . the unlawful zone. . limiting speech that so islation such as of sanc For threat “[t]he obviously presented here.12 It declared may deter almost as tions . . . intelligence common must men of potently application as the actual meaning guess at the made not be danger of sanctions.” . The . . affecting rights. a statute Some chilling upon the exercise effect involving speech activities and associa rights must Amendment vital First may regulated proper tion governmental purpose be where guarded against by tools sensitive be need and definite clearly inform teachers what with is demonstrated. This interference Keyish being proscribed. . . University carefully privileged conduct must be Regents ian v. Board agency narrowly em drawn. Executive York, 589 at of 603-604, of New State ployees spe entitled to be citizens are L.Ed. cifically informed what the Con as to 2d 629 gress intends to Restrictions forbid.13 less can said of Federal Govern- No by means which not be achieved employees. ment unnecessarily broadly sweep into right Amendment First areas.14 The empha- record before this Court privilege expression associa growing reach of this sizes the unnecessarily invaded tion be so expan- cannot legislation which, dampened the use is and discour grants state sion of federal services, to various aged. despirit, To chill is to encompasses millions now First Amendment will not flourish but Federal Government gradually an suffocated in such can be that what- It is obvious families. now validity atmosphere. may of the have been the ever City past month, ; Papachristou of Jack- 12. Within the the U.S. Su- v. 839, 162, Grayned City sonville, 156, preme of S.Ct. Court v. 405 U.S. 92 Rockford, 104, ; 2294, New 408 U.S. 92 v. S.Ct. 110 Lanzetta 33 L.Ed.2d 32 Jersey, 618, 451, 453, (1972), succinctly 59 S.Ct. U.S. 222 summar- 306 L.Ed.2d (1939). scope both the doc- L.Ed. 888 ized the reach of 83 vagueness of For trine and overbreadth. City Grayned Rockford, 408 U.S. v. of lengthy doc- the more discussion 104, 2294, 222 33 L.Ed.2d 92 S.Ct. overbreadth, vagueness and chil- trine of Robel, ; 389 v. United States Thompson, ling effect, see 448 Hobbs v. 258, 419, 508 L.Ed.2d S.Ct. 19 88 U.S. (5th 1971), F.2d 459-460 Cir. Button, (1967) ; NAACP v. cases cited therein. L.Ed.2d 405 Grayned City Rockford, 33 L.Ed.2d another, argued presently allowed in cannot as be have Hatch it Act unguided leaving interpreted citizen but haz- constitutional withstand the interpre- job. Perhaps challenge contemporary details ard for his could dis- the administrative left to First Amendment. tations of the cretion, Commis- in this the instance recognized already courts have Two rulemaking given power, and sion was no re-examining necessity inAct the the does not state with the precision itself controlling light precedents. the prevent. it seeks to what evils (5th Thompson, 448 F.2d 456 Hobbs v. speech limited, it is is to be Where Taft, 1971); 341 F. Cir. Supp. Mancuso v. -suggests, answer, imply dissent as the 1972).15 (D.R.I. reading Political of the voluminous urge is Defendants Mitchell Reporter Activities visory ad- resort binding. above, this does As indicated rulings by the Civil Com- Service appear to not since the case give mission will one who wants ex- open opinion explicitly Mitchell left guidance. Speech press adequate himself question constitutionality of the subject to must be controlled incorporation-by-reference section respond censure cannot with- so one However, Act. if Mitchell’s hold even prior out clearance to demands of binding, ing is the defend considered ordinary daily expression free affairs. contend, ants inconsistent sub it is with impermissible areas of ac- If there are tivity, delineating sequent First governmental overriding precedents, Amendment freedoms. These marked utmost terest must be with developed the “least restrictive Congress clarity by form in a governmental test” in alternative sophisticated and un- is obvious speech, cursions into the of free area sophisticated alike.17 upon undercut the test “rational basis” Accordingly, the Court declares analysis which Mitchell (2) of the Hatch Act U.S.C. 7324(a) coupled decisions, Act was based.16 provisions in that unconstitutional changes complexity size vague impermissibly and overbroad among public service, place Mitchell against requirements when measured by passage other decisions outmoded Amendment to the Constitu- First time. against injunction enforce- tion. The a statute difficult declare granted stay ment of this Order and a long motivated books and so well granted pending determination arguments unconstitutional. The ad Supreme United States. So Court however, dissent, are not vanced ordered. persuasive. delicate, precious area obligation speech, free PARKER, J., concurs in this possible, if some courts to seek all even right separate to file a and reserves the tortured, uphold what admit means to concurring opinion. tedly congressional fuzzy must action give way Judge MacKINNON, (dissent- to other considerations. Circuit ing) : If the undertakes to pass speech, brought by it circumscribe cannot the National This case is riddles, one, which, Carriers, act like talks six local Association Letter Committees,

prohibiting in breath Republican one what Democratic Contra, Regional Thompson, 15. Northern Va. Park F.2d 16. v. 456 Hobbs 448 Civ.Serv.Com., (5th Taft, 1971) ; Auth. v. United States 341 Mancuso v. Cir. Cir.), (4th denied, (D.R.I.1972). F.Supp. 437 F.2d 1346 cert. 574 936, 403 91 29 L.Ed.2d supra. 17. notes 13 14 See cases cited and (1971), 717 the four cited and cases at also therein 1351. See Broadrick Bd., Oklahoma ex rel. Okla. State Person. 1972). (W.D.Okla., F.Supp. 711 individually prohibited activity “taking any and named federal em- six ployees management part political a class on behalf of action active in or employees political campaigns,” and state covered in all federal is unconstitu- management by political vagueness, and cam- tional for overbreadth and paigning provisions prohibitions of the Hatch Act.2 the such activities declaratory judgment They constitutionally seek are themselves invalid.4 defining Act,3 They enjoin because also seek United 3. Section 15 was added provided: Title Pub.L. amendments to the enacted upon ous incorporated was 1940, find that Hummel does not sent a case or jurisdiction. Mandicino, Gee and Pinho are less immediate. for Health Services Ronald Maryland Legal Analysis Branch, and gomery ment, Department in the National mittee Woman County of the Executive Board of the Union; Jr., Originally ternal Arlington, Virginia; members of the Hummel, gomery County, Charles O. gomery Democratic Republican Democratic Committees Fairfax Counties ual Maryland, The hibit apply controversy. Stat. aspirant provisions an Assistant amended Welfare, United States Postal Service and 53 Stat. plaintiffs ch. political provisions U. S. Postal Service and a member Revenue Service and a resident of persons 89-554, J. into County, and Prince Marie Republican United States formal codification of Title 5 Democratic an executive officer in Wylie, Director, State Senate. enacted Wylie Myers, Central Committee et to the the District Central positive 54 Stat. 767-72. The vari- taking any The claims committee significantly seq. and a 1147-49, Pinho, to whom such in plaintiff Union; controversy are J. Price Gee Library Maryland. Maryland of this Act which Regional scattered locations 1, September 6, 1966, in Research and both post August 2, Georges Act have since been nomination to the Committee, Virginia law resident of Mont- Health, plaintiff Arlington Frank Committee; 54 Stat. Myers Code, letter Systems National Center plaintiffs the Hatch Act active present Field Director precinct Arlington presented by Medicine of Columbia I Political The individ Counties Mandicino, the 1940 carriers provisions Education and find that and were each for Mont July 19, Develop- aspirant plaintiff John O. Analyst and the give are the a ease Mont form Com- pre- and and and ch. In us in in consistent with one another we consider complaint The second contains seek to have declared invalid: The first of these sections and the employees: void 5 U.S.C. tory prohibition “This Court declare the federal guage employees, U.S.C. tion 15 ployees Thus, (5) agency ployee may the rules were ployees July 19, 1940, by means ment (a) A the management As it is now such part ployees in effect campaigns mined the same persons ice political management (a) this form Section 15 ^[*] to be the United States (1970), applying phrase . Commission Civil Service Commission under § is the employees An take an in or appears employees. brought are at the time this section takes prohibited those 7324(a) both sections State or local definition, as the United States Civil Serv- so that campaigns. civil-service rules and as the last sentence of 5 prescribed an individual unconstitutional, 1502(a) political management ^[*] activities prayer the 1940 amendment. not— shall be deemed to “an active . the classified civil service prohibition or in acts of competitive codified, both as' 5 U.S.C. active within the as it . from (2) (1970), and to those state em- ” the two on the ^[*] has for relief asks that: on the both the political campaigns” The' campaigning on the Complaint, is the same: determinations of taking any political manage- provisions by to covered state applies heretofore deter- employed part the former Sec- applied construing officer or em- or operative an Executive ^[*] service before is the statu- part requests part part invalid and President. coverage in prohibition campaigns. applying prohibiting provisions plaintiffs to state 7324(a) prohibit to both of em- of such of em- § of law at 13. ^[*] or active lan- in

587 proportionately. and its creased is Commission accord- States Civil Service Secretary ingly beyond power members, and the of this court to individual the Welfare, challenge plaintiffs’ Health, from consider of enforcing the the Education threatening constitutionality statutory prohi- the or enforce 5 against challenged “taking part portions of Act. This in the bitions political management an active pursu three-judge or in convened cam- court was paigns.” ant 2284 hear 28 & to U.S.C. 2282 §§

the of a case. After consideration However, despite apparent specifi- the documentary aft voluminous record and city complaint, it has clear hearing argument par er ties, from oral the throughout litigation plain- this that the my opinion there validity govern- tiffs concede the challenged in constitutional defect prohibiting mental interest in certain statutes. electioneering poli- blatant forms of ticking part on the of federal and state employees. concern, rather, Their has At the noted that the outset it is two scope prohibition been with complaint statutes here asks us reflected Section 15’s definition of invalidate, 7324(a) (2) U.S.C. §§ prohibited They activities. contend that 1502(a) (3), respectively, the direct since the Court Mitchell found that successors 9 and 12 of the of Sections squarely Mr. Poole’s actions fell within (as 1940). Hatch Act amended These expressly the reach of Section provisions two were found to be constitu- clined to the constitutional lim- examine tionally Supreme valid Court in of the Section definition Mitchell, United Public Workers v. political activity,6 hibited and that this U.S. S.Ct. L.Ed. 754 open. issue overlooks This the fact (1947), and Oklahoma United States majority Mitchell, that supra, Commission, Civil Service sought injunctive which and de- (1947), 67 spectively. re- L.Ed. 794 claratory relief, generally upheld essentially In cases all those against the raised contentions after dis- presented the same issues were de- here cussing background and reasons for adversely present opponents cided its enactment: addition, of the Act. in the inter- vening years number of Government The Hatch Act gress is the answer Con- materially say has increased and to this need. We cannot society background thus the threat to a such democratic with that these re- public to an efficient service in- has strictions unconstitutional. government threatening executing of the District of Columbia enforcement provisions not— [sic] execution of the of 5 1502(a) 7324(a) U.S.C. [sic] ” part Complaint, This, take an active at 14. consistently political campaigns. too, or in we construe purpose prayer subsection, declaratory For the this relief to intend a phrase request enjoin “an active man- enforcement agement campaigns” 1502(a) prohibition portion § and the political manage- 7324(a) means those acts of of § campaigning ment or 103-104, 6. 330 at at 571: on the of em- “We need to no further examine ployees competitive service be- validity time into the definition of July 19, fore determinations political activity 15.” Mr. Paris’ the Civil Service Commission chairmanship the Democratic State prescribed by rules the President. Committee, Central in the Oklahoma surely typo- obviously ease, In what must have been a was even more viola- graphical complaint requests error the Mr. tion Section 12 than Poole’s ac- junctive against tivities, relief enforcement of so that definition 1502(a) remotely all of § : “That each and all was not even under attack preliminarily defendants that case. permanently enjoined enforcing In 67 S.Ct. at 571. plausible cal committees have even a opinion spe- addition held the that the representation claim for of state em- provisions cific which circumscribed ployees. I thus consider this be claim to (the plaintiff-employee) Poole’s conduct too requirements remote to meet the portion valid. This 23(a). the Rule Examination of the com- implicitly upheld allegation also the manner injury mittees’ plaint com- specific against prohibitions cer- that their reveals interest litigation tain activities purely this had is an institutional mulgated through 1236, September, Form interest—they allege organiza- that their deprived gov- tions are the services employees potential ernmental as candi- However, plaintiffs contend that dates, party workers, and con- financial validity of definition in Though question tributors. there is no by open was left for decision the Mitchell par- that the committees are entitled to cases, solely and Oklahoma and it is ticipate in this action on own be- challenge their plaintiffs’ consider to that defi- half,8 it seems clear to in- me that their jurisdic- nition that we have retained litigation separate terest in this and is three-judge tion as a court over this case. employees’ distinct from the individual allegations infringement

II of their First rights expres- Amendment to freedom of 23(c) Federal Rule of Civil Procedure political sion of views. Thus it is not requires consideration of class as- that, 23(a) clear in the terms of Rule pects complaint. of the Plaintiffs assert (4), representative “the [committees] they represent class is fed- “all fairly adequately protect will and employees by and state covered [5 era] U.S.C. employees].” terests Furthermore, the class state [of 1502(a) (3) 7324(a) (2)] and §§ though legal theories presently who desire will in fu- that would entitle re- the committees to engage ture desire to in activities which many respects lief likely to be provi- are or in violation of said be argued by same would be individual Complaint, sions.” 14. This claim to ¶ employees organization state or an whose representation is far too broad. membership or status other was more di- I do not find that class of state em- rectly representative class, of that it is ployees properly represented by readily apparent 23(a) Rule plaintiffs. begin, To member of this (3) requirement “the claims class is before the court. None of the representative of the [committees] employee. named individuals a state typical claims ... The National Association of Car- Letter class” has been met here. represents only Since the federally employed riers Only politi- require- Postal Service committees do workers. not meet these Paragraph Complaint alleges: 19 of the able to become members of Plaintiff Com- Republican Plaintiff Democratic and mittees have been continue be de- and provisions doing Committees have terred from so said been and continue severely adversely general atmosphere and the Hatch Act. The affected and disadvantaged superstition and fear enforcement created management threats of enforcement cam- paigning provision campaigning of the Hatch Act has provision severely against Plaintiff of the Hatch Act hindered Committees fed- important responsibilities employees. particular, eral and for fund state In raising getting Plaintiff out the vote Committees have been deterred terring participating individuals continue to be deterred from seek- ing including kind, desirable activities of candidates who are Fed- voting. eral or donations state covered Hatch Act to run on the Democratic See, Refugee g., e. Anti-Fascist Joint Republican ticket for state and local of- McGrath, Committee v. addition, fices. numerous individuals 157-160, 95 L.Ed. concurring). J., (Frankfurter, who would otherwise desire and be avail- plaintiffs III claim ments, other since no class, case represent I find that the finding, however, my action maintained as a class cannot be action maintainable as a class case is regard em- to the class state with ployees regard federal the class of with by the Hatch Act.9 covered My subject employees Hatch Act. to the denying status to the reason for class employees all federal As to the class of seeking represent parties em- state Act, by that a find covered the Hatch I my par- ployees was concern that those properly maintainable action is class enough closely interests are not ties’ aligned Though indi- a there are but few here. prospective mem- the class with approxi- (with viduals and one union mately 200,000 postal employee-mem- rep- provide adequate bers’ interests to my in- I resentation. Therefore limit nearly representing million the 2.9 bers) examining the quiry in action to this employees Federal civilian of the Gov- validity of definition constitutional the by ernment, are covered most of whom political activity prohibited to of that Act, potential present is not the there 7324(a) employees in federal 5 U.S.C. § representational interest conflicts challenge (2). definition Plaintiffs this regard employees. to state noted with vague- grounds and of overbreadth 9, accompanying supra, note See though concepts ness, close- these are 23(a) requirements of text. The Rule sufficiently ly distinct are related fully representa- met are thus separate analysis. to warrant Com- tives. defendant Civil Service has that it has en- mission admitted A. Overbreadth enforce the forced and will continue including concept provisions of the of over- The essence challenged management campaign- that statute breadth is ing against prohibitions provisions, employees both includes within its legal those 16, illegal activity.10 subject Answer, Overbreadth to its terms. ¶¶[ frequently combined, as requirements This admission meets the contentions allegations (2), here, 23(b) completing Amend- First thus Rule pre-requisites over- of ment the statute’s Rule’s maintenance violations—that for prohibiting, inter a consists of class breadth action. maintaining statutory language applicable “the interest Since Federal effectiveness, integrity impartiality employees state federal identi- cal, might (Defend- why, asked, be aren’t of the Federal Civil Service” might justify closing brief, 6) representatives a ants ade- federal quate representatives scope prohibition than class of broader employees regulating despite Federal interest those state failure govern- allege complaint? Though local so dividuals within state or posi- dispositive Mitchell mental unit’s Civil Service whose and Oklahoma question principally Federal on the tions are funded constitutional payments. express propriety governmental While intend to interest subject prohibiting here, on this I consider on the argument possibility employees, to be such of both state and federal convincing insisting present challenge that reason what here is a presented by employees’ scope prohibition be state interests that so as reflected representative group a more individual or the statute’s definition of the activity. Let- regula- than these federal and the It is conceded infringes tion in area ter union. on First Carriers rights, validity Amendment so that City Cincinnati, 402 See Coates v. prohibition depends large part 611, 1686, 214 L.Ed.2d U.S. 91 S.Ct. 29 showing compelling Government’s (1971) ; York, Street v. New 394 U.S. necessity for the statute. It seems at 576, 1354, 22 L.Ed.2d least feasible to me that the interest of (1969) ; Robel, United v. 389 U.S. States regulating the Federal Government 258, 419, (1967) ; 88 S.Ct. L.Ed.2d might respect this area Keyishian differ with Regents, v. Board of employees—that and state 87 S.Ct. 17 L.Ed.2d protected injustice, oppression, the First alia, to lead to or an activities argue Here, plaintiffs consequence. always, absurd Amendment. will legis- therefore, presumed Com- incorporating the Civil Service interpreting exceptions intended to its lan- mission’s lature guage applying the Commission’s rule which would avoid results hibiting political and cam- this character. The reason of the law imper- paigning, prevail defines as statute such cases should over many political activities such letter. missible First squarely within the fall Holy Trinity States, Church United guarantee opportu- Amendment’s “the ., nity political discussion . . for free (1892). 226 36 L.Ed. security opportunity essential to the construing a not statute we are [I]n Republic, a fundamental of [and] the always reading, confined to literal system.” principle of our constitutional may object pur- and consider its and 359, Stromberg California, 283 U.S. v. things pose, the with is deal- which it 532, 536, 369, L.Ed. 1117 76 51 S.Ct. ing,- and condition which the of affairs (1931).11 led its to enactment so as to effectuate destroy spirit rather than the and underlying assumption the critical legislature force of law enacting which the the argument

plaintiffs’ is that in intended to enact. im intended to Section 15 mutably fix the definition of Company American Tobacco v. Werck- political activity the those meister, 72, as acts 284, 293, 207 U.S. 28 S.Ct. Commission, inter their decisions and in 74, (1907). L.Ed. 208 52 1940, pretations prior had found vio The strict letter of an must act rules. former Civil Service lative yield spirit . evident its contend that some of these Plaintiffs purpose, necessary give when this prior cur determinations would violate Congress. effect to the intent of concepts Amendment’s rent of the First unjust . And or absurd conse- incorpora protections,12 their are, quences possible, if be avoided. pro definition of tion into the statute’s Company Fleischmann Construction v. activity fatally defective to hibited Forsberg, United States to 270 Use entire definition. 349, 360, 284, 289, U.S. 46 L.Ed. S.Ct. 70 assumption plaintiffs (1926). seek 624

With compel rigidity defi- in 15’s statutory However well these rules [of analogous of the Medes nition to the laws to aid construction] serve times rigid has literalness and Persians. This deciphering legislative intent, place interpretation statutes long subordinated to long continuously been and has since doctrine that courts will construe rejected by Supreme Court. our conformity details of an act dominating general purpose, All receive a sensible will should laws light read text of context and construction. General terms should be interpret application will far text so as so limited profound States, See Roth v. United national commitment 354 U.S. principle public 476, 484, 1304, 1308, debate on issues L.Ed. 77 S.Ct. 1 uninhibited, protection given robust, “The should be and wide- 2d 1498 : open ”; Brennan, speech press . . . The Su was fashioned to as preme Meikeljolm interchange and the Inter sure ideas Court unfettered pretation Amendment, bringing the First 79 about of (1965). changes people.”; Harv.L.Rev. social desired Sullivan, New York v. Times Co. Anthony Mondello, See Affidavit L. 710, 254, 270, 721, U.S. 84 S.Ct. 11 L. Counsel, Civil General United States Ed.2d (hereafter : “Thus we consider Commission, Service at 3-4 against background affidavit). this case of a cited as Mondello initially fairly permits inherent Consider absurd- meaning words ity regard plaintiffs’ position with particular carry cases out so toas legislative incorporation pre-1940 pol- expressed those generally interpreting earlier Civil icy. cisions prohibiting partisan Rule both Service Leasing Corpora- C. M. SEC v. Joiner nonpartisan political and all 120, 344, 350-351, tion, private expression personal politi- but (1943). L.Ed. 88 cal The Hatch as amended views. Statutory interpretation requires more explicitly provided for federal upon isolated than concentration employee participation nonpartisan words; rather, must be consideration political campaigns dropped given corpus pertinent to the total prohibiting all vision of former Rule policies inspired os- law and the private political opin- expression tensibly provisions. inconsistent argument ion.14 Plaintiffs’ all of Markets, Boys Retail Clerks Inc. fixed Union, prohibited activity definition would L.Ed.2d 199 absurdity spe- create the that activities long-familiar of our Another doctrine exempted cifically from the Hatch Act judicial system is that: 9(a) were, in Sections and 18 the time, validity prohibited by of the same When the act Section Congress question, Such is drawn in a construction is not tenable. if a even serious doubt constitution- Similarly, compiling index to the ality raised, prin- is it is a cardinal pre-1940 the decisions that contained ciple that ascer- this Court will first Activity in the Commission’s Political tain whether a construction of the Reporter,15 the Commission noted: fairly possible the statute many 1886- cases decided question be avoided. period, particularly 1940 in cases Benson, Reports, 22, 62, found in Crowell Annual 52 285 U.S. 285, 296, specify type po- cision did (1932)13 S.Ct. 76 L.Ed. 598 Following plaintiffs’ litical involved. Because construction of Sec- precedent negli- tion injustice, oppres- value of such 15 would lead to cases sion, gible, they consequences possible absurd been omitted from listing unconstitutionality, nothing set out below.16 and I find legislative history provision of the largely These are en- cases in which the suggest to that such results intend- nothing tire recorded decision contains Congress. ed Moreover, plaintiffs than a more recitation some named that recognize that, notwithstanding fail to disciplined for, g., individual “un- was e. pre-1940 the reference determina- political activity,” prac- “corrupt due tions, provisions the Hatch hardly necessary tices.” It should themselves, they to the that differ extent incomplete state that such decisions are from the law rules under which absolutely elucidating no value made, those determinations were indicate politi- prohibited statute’s definition of Congress incorpo- that did not intend to campaigning. cal many rate of those decisions. again would create an absurd conse- See, g., Thirty-seven e. United States v. 9(a) 14. Sections and 18 of the 5 (37) Photographs, 363, 369, 402 U.S. 91 7324(b), (1970). §§ U.S.O. ; S.Ct. 28 L.Ed.2d 15. I United States Civil Service Commis- Smith, 17, 27, Schneider v. 390 U.S. sion, Activity Reporter Political i-xxvi (1968) ; 19 L.Ed.2d Rumely, 41, 45, United States v. (1953) ; 97 L.Ed. 770 Ash i. Id. at TVA, 288, 348, wander v. S. (Brandéis, Ct. 80 L.Ed. 688 J., concurring). plaintiffs contend, quence hold, as the that Commission’s over-zealous ef- preceden- neutrality with no decisions forts to all obtain incorporated might tial 15’s value are Section Civil Service result in rules regulations Obviously infringe did not definition. would on fun- personal so intend. damental op- liberties.19 sought position congressional thus Plaintiffs seek to demonstrate statement of the activities expressly to fix Section 15 was intended delegation defining rather than the definition in terms power, and a limitation on the Commis- through quotations from the power curtail sion’s individual free- accompanying Senate debates through interpretations doms 15’s inclusion in 1940 amendments Act. quotations to the Act.17 Yet the Hatch offered Senator as a substitute exclusively biased, use are almost to the Committee’s Section section 15 the self-serving declarations of bit- the bill’s substantially the same form as it was terest critics. the context Viewed Having offered, enacted.20 sequently adopted, and sub- history the entire of Section and the response statutory traditional doctrines incor- strong opposition to the Committee’s Sec- poration by reference, I find such in- tion we can assume it was in- wholly tent to create definition objec- two-pronged tended to meet the flexible immune from normal tions former version. Thus Sec- processes judicial of administrative and delegate tion 15 as enacted does not interpretation con- which would ensure congressional power the Commission the subsequent formance with court deci- prohibited activities; to define sions, particularly interpreting the those Congress’ expand does definition— Constitution. through legislative the common tech- reported As bill the to was the Senate incorporation nique by of reference21 Privileges from its Committee encompass —to both the and the statute Elections, the the 1940 Amendments to refinements thereof that be evidenc- Act contained a Section 15 which would by any pre-1940 ed determinations inter- have authorized the Civil Service Com- preting statutory post-1940 relevant to mission define term the “active language. By technique, Com- the inor powers interpretation mission’s of were campaigns” through issuance of rules precise within fixed more limits. How- regulations could also subse- ever, I do not conceive that the result quently by be modified Commission. the fixing an was the defini- immutable During ensuing the two weeks of debate tion but rather amounted to im- the floor, on the Senate Section 15 was bit- ceiling position aof Commission’s the terly grounds: assailed on two that it power to restrict individual ac- delegation was an unconstitutional tivity. The amended section met the congressional power to define activi- the opposition fears of the Commis- that the Act,18 by ties might personal the and the fear sion curtail liberties argument ignores 17. making prevent voluntary This somewhat the the contribu- Representatives fact House tions. I am not sure that would plays equal part any change, ought an. in the enactment of make I think to we legislation. respect. state what we want done in that McKellar, also See remarks Senator See, g., Cong.Rec. (re- 18. e. 2924-27 id. at 2352. Thomas). marks of Senator 20. Id. at 2928. See, g., (remarks e. id. at 2922 of Sena- Brown) generally tor : 21. See 82 C.J.S. Statutes 371- §§ unwilling Statutory (1953) ; Sutherland, I am to authorize the Civil any (3d Horack, Service Commission to make rules of Construction 5207-09 ed. §§ 1943). character which would contravene right speech of free and which would through understanding interpret progressively restrictive useful more existing by ing though they regulations imposing First, in- are Section generally great weight beyond terpretations in con as a limit accorded rulings go. struing statutes, incorporated rea- could find Commission originating son construe this concern with the administrative bodies in the to binding jurisdiction intent an tection of individual freedom as are not considered Second, jurisdiction. adopting prevent from ac- to the Commission in the by knowledging Supreme adopting statute current Court where its terms the by rights incorporated on First Amendment is inconsistent with cisions thereof, receding judicial the re- outer limits of statute or constructions major in the determi- or other strictions set Act. The or where constitutional by ju incorporated public policies incorporating ref- nations which were subject conflict, prior to administrative risdiction construc erence so judicial give way conflicting expres interpretation as same tions though they adopting juris statutes. sions of statute or the policies. diction’s fully con of Section 15 This view major stat traditional doctrines 9 of the Hatch Act is in sistent with Section utory incorporation adoption respects reference.22 of former Civil jurisdiction has a statute Commission and an Where one Rule One Service legis appli- adopted corporation been reference of the reference gen jurisdiction, interpreting provi- of another lature cable being in re- eral rule of construction within sions. The into came jurisdiction, absence adopting sponse even in the various election abuses declaration, involving statutory campaign em- federal adopted juris- presumed ployees that were not within the statute placed the construction on it diction of the Commission. Section originating jurisdiction. incorporated One, modi- courts Rule with some general general govern- fications,23 exceptions rule Two as statute Id. branch the executive Government, any agen- the Federal principal 23. The modifications cy department thereof, take shall enacted, included the extension of manage- active virtually coverage em- all campaigns. All ment or permission ployees, publicly express right persons shall the such retain political opinions, and of an ex- creation express they and to vote as choose press penalty for At violation thereof. “privately” was not their word [the enacted, the was the time Civil Serv- opinions on all here] included One, ice Rule read as follows: subjects. purposes sec- For the of this person No in the executive civil serv- “employee” tion the term “officer” or authority his in- ice shall use official or (1) the not be to include shall construed purpose interfering fluence for the of the of President Vice President affecting with an or election the re- States; (2) persons whose United compensation by sults thereof. Persons who the paid appro- the from visions of these rules in the com- are priation for the the Presi- office petitive service, classified while retain- (3) dent; heads and heads assistant ing right they please the to vote as departments; officers executive express pricately opinions their all on appointed by President, who are the subjects, shall active take no the the and with advice and consent political management or policies Senate, and who determine campaigns. [Emphasis added.] pursued the in its States United enacted, provided as Section : foreign powers relations with (a) any per- It shall be unlawful for Nation-wide administration the employed in son the executive branch of Federal laws. any agen- Government, the Federal provi- (b) Any person violating the cy department thereof, to use his immediately of this section shall be sions authority or official for the influence position held interfering or office purpose removed with an election or affecting by him, the result and thereafter thereof. No officer ing employees. pre-1940 As virtually all federal that decisions which during incorporated in should be noted the debate Section 15 Senator following year: any differently de- treated no than other Section incorporated in cisions which have rules, adopted the civil-service haveWe interpreta- a statute reference. The law, and, rule of a well-known plaintiffs tion of for Section 15 which instance, adopt, stat- for when we wholly with this contend inconsistent adopt State, we ute of .a sister my opinion established doctrine and placed courts construction the improper is an view statute. that statute. assumption regard- plaintiffs’ Without Cong.Rec. incorpora- 2949. Thus the ing immutability defi- Section 15’s pre-1940 deter- tion of the Commission by incorporation, nition over- was, practical minations Section argument breadth must As read fall. recog- statutory effect, little more than incorporates as the Act’s of statu- nition of traditional canon prohibited political activity definition of however, did, tory interpretation. pre-1940 those decisions which: conclusively problem avoid the sufficiently descriptive are to serve exception might posed have been meaningful precedents, (2) are not in- limiting precedential ad- effect of express provisions consistent with the ministrative decisions. portions other of the Hatch evolving which significantly, remain consistent with the statute More concepts politi- individual freedom of Hatch Act—was enacted—the was expression protected by respects cal the First One consistent with Rule Amendment, exception as announced the courts. the second noted above. Thus clearly general rule would call say scope This is the full interpretive ignoring all those protections of the First Amendment’s provi- interpreted those decisions which guaranteed employees— inconsis- which were sions of Rule One recognized for as Mitchell re- substantial Hatch Act. the terms of the tent with concededly necessary strictions are to ef- Similarly, obvi- Amendment is the First objectives fectuate the valid Act’s provision ously both a constitutional maintaining integrity impartial- policy vitally important public our ity of the Service. I would Federal Civil government teaching the doc- applying pre-1940 prece- hold incorporation by reference (and trine of post-1940 dents successor concepts conflict with such where up cisions that have built from these prior prior con- constructions those interpretations) earlier the Commission way. give Finally, structions blindly continuing must rely cannot on their acknowledges doctrine that subse- Instead, also vitality. these decisions are growth quent of such statutes, subject and modification to continu- same as important policies ing in over- judicial scrutiny should result administrative and ruling prior being ap- constructions inconsistent to determine whether originating jurisdiction. I con- from the plied in in conformance individual cases explicit ref- itself, sider that Senator Hatch’s with the terms of the Act of applicable erence to “well-known Amendment, rule[s] First and other Congress recognition by my principles. law” reflects a view constitutional by any exemp- appropriated ; express (Section 12) funds Act of Con- an ments gress position par- for office and for such or shall from both tion ticipation Sections pay compensation political nonpartisan be used to of cam- in person. (Section 18) ; express paigns and an such permission participate grant The 1940 in amendments to the Act added of to campaigning political management in three additional of or modifications Rule ma- further of in One: extension the Act’s cov- areas where local elections employees erage positions jority are federal to state whose of the voters principally pay- (Section 16). funded Rarely, ever, are the so different. if of' is con- this construction Section legislative history precisely in facts two cases alike. So with the sistent both Congress passage, I do could and not know how far intent behind its go, incorporation of how wise it be for Con doctrine would the traditional by gress po Furthermore, pernicious I that what reference. find to define is construed, activity. is not litical . as so sub- . This is such Section ject term, depending for a criticism over- on the facts to constitutional flexible Congress case, of each I breadth. believe by undertaking to include certain Vagueness B. things, might many other not include find things I ought included, Thus Section which to be incorporates reference simply inability think because of to interpreted be administered of all of them at once.25 any statute. I believe that Con- same as gress try them Rather “to think of all of than intended so Commis- Congress body once” turned erroneously contrary con- sion reached developed decisional law the Civil brings problem me to the clusion. This years in Service Commission over 50 vagueness. If definition of practice essentially identical with rules absolutely political not is hibited adopted Having to those the Act. Commis- fixed in terms corporated in the Act the Service Civil decisions, provide does the statute sion taking against prohibition Rule “an One of conduct an ascertainable standard management political active in enough to reasonable fed- inform a clear Congress campaigns,” then participate employee desiring to eral explicitly adopted—by incorporation— process of what conduct is construction Commission’s decisional forbidden him? coining phrase inde- instead of an opponents proponents Both the pendent definition. As I have indicated painfully Section 15 Senate above, nothing inherently im- there is finding difficulty of ade an aware legislative proper technique of about quate definition of the behavior incorporation reference. sought proscribe.24 Amendments statutory The is here standard categor seeking specified to enumerate analogous legislature’s many respects to a political activity were resisted ies against adoption aof criminal statute largely on the that: basis such a common law crime as fraud—no “fraud”; attempt attempted is made to define has never long-existent body judicial rather the to define of its civil-service laws what o,f interpretations concept activity, pernicious political of fraud impliedly incorporated.26 ques variable, are so the facts are situations (remarks Id. Bark- Indeed the Committee version of Section at 2952 Senator ley). attempt 15 had abandoned delegated the Commission would during phrase analogy suggested power 26. The was “an fraud the sole to define colloquy 15 in this debate on Section active George: Brown, campaigns.” Brown and between Senator Senators Now, opponents, read to let me vocal 15’s Mr. BROWN. the most of Section offering upon what Civil Service substitute Senator amendment said: remarked: Commission activity: my The amendment arises out Definition complete attempt define, possibly impossible give list if sire activity. particular can, an em- I drew activities what engage. subject, ployee may long on that amendment certainly is, Why, it with it. Like Mr. GEORGE. I became dissatisfied ages just throughout Hatch], I find it most as the courts [Senator diffi- “political activity” fraud, because define have refused to cult define imagine every they not conceivable could practice Cong.Ree. under which a 86 2922. circumstance

596 resulting practice tion is whether statute mission’s under Rule vagueness. enacting

avoids the In a case One when vice of Section 15. Senator vagueness this, prepared post-card such as issue turns had size list ing eighteen subject principal of the the federal activities whether prohibited given adequate notice under Rule the Act has been One that was widely abjure prior of what he must distributed to consideration activities violating order Act.27 the Hatch Act This to avoid Such itself 1939. warning Congressional necessary, particularly clear card was read into during legislating Record when the area of First Senate’s debate floor following protections, year.30 Amendment that the em Section 15 the so addition, ployee partici portions prevented the substantive of the pating protected 1236, Form activities for fear of Commission’s Political violating prohibition boundary Activities and whose Political Assessments readily is not discernible.28 Employees, Federal Officeholders were discussed and later inserted into vagueness key Since notice is the is, course, Record.31 It true that Sec here, highly I consider relevant incorporated tion 15 the decisions them availability of extrinsic aids to the inter summary selves and not Form 1236’s pretation of the statute.29 Foremost holdings, among legislative their his such aids is the Com extrinsic digest summary tory apparent mission’s own makes can that we they activities have found to violate look to Form 1236 for evidence of the political activity prohibitions. It is clear congressional understanding beyond question relied content of those and in con heavily on such summaries the Com struing enacting intent Sec good would fraudulent or in faith. 1316, ; L.Ed.2d S.Ct. 12 377 They very knew well that when Button, 415, v. NAACP 371 U.S. 432- it, did define who those wanted to de- 433, 328, (1963) ; 83 9 L.Ed.2d S.Ct. 405 advantage fraud would take of the def- Cramp Instruction, v. Board of Public get it; inition and around so the courts supra note 23. always absolute, said that no looking 29. In aids one potential such extrinsic rigid, exhaustive, defini- and exclusive is, course, aware of tion of fraud could be made. aggravation vagueness problem for Cong.Rec. 86 2954. profusion statutes, “prolixity Cramp 27. See v. Board of Public Instruc regulations, and administrative machin- tion, 278, 287-288, 275, 368 U.S. 82 S.Ct. ery, by manifold cross-references (1961) ; L.Ed.2d 7 285 Lanzetta v. to interrelated Keyishian, enactments and rules.” Jersey, 451, 453, New 618, 306 U.S. 59 S.Ct. supra 10, note 385 U.S. ; (1939) Connally 83 L.Ed. v. 888 604, in the at 684. As indicated Co., 385, General Construction text, accompanying Serv- find the Civil 46 L.Ed. S.Ct. ice Commission’s administration Professor Amsterdam’s now-classic com- helpful exceptionally in clari- Hatch Act mentary vagueness on the doctrine finds fying the definition of the notice element one of a broad aggravating problem rather than complex of issues involved the doctrine. potential vagueness. Note, Void-for-Vagueness Doctrine Cong.Rec. 30. 86 Supreme Court, in the 109 U.Pa.L.Rev. (1960). However, having dealt with Minton intro- 31. Id. at 2938—40. Senator closely larger related overbreadth concerns pp. docu- 13-80 of a duced this separately, problems Rules, fed- and absent Act: ment entitled Civil Service judicial Regula- review eral-state relations Statutes, Orders Executive statute, problem of this federal here tions, Sena- to June Amended scope subsequently is much than is called narrower indicated tor Schwellenbach general analysis vagueness. for in a possession in his Form 1236 that he had separate publication, referred and he aas Keyishian Regents, 28. See Board of v. portions in his comments of the Form supra 597-604, note U.S. at Cong.Rec. opposition 629; Baggett 15. 86 to Section 17 L.Ed .2d Bullitt, 366-373, represent present interpreta- Indeed, Supreme their Court tion 15. meaning tion of in extent of the in to Form 1236 Mitchell looked pre-1940 expressing precisely 5 C.F.R. Part without this manner decisions. Thus, (1972).34 any 733.101-402 hesitation or doubts about §§ requisite doing employees permissibility con- notice to federal so.32 The Com cerning similarly a what must do to avoid used Form 1236 as mission taking political guide in “an active in management political campaigns” early or in the Hatch determinations can be derived from the rather both Act.33 straightforward statutory language it- government Today, to em- further aid self, explicitly the more understanding ployees in Form categories scriptive of behavior in listed regula- replaced by 1236 has formal regulations.35 sure, promulgated by these To be these do tions the Commission politically (11) in Be active connec- 32. n. 330 U.S. at 103 & specifi- question tion a which is not 91 L.Ed. 754. cally party, political identified with a affidavit, supra note Mondello amendment, ref- as constitutional such erendum, approval a 2-3. municipal a ordi- any question other or issue nance or applies to federal em- Part 733 character; a similar ployees. Analogous regulations applicable judge (12) an election or Service as government state and em- covered local position per- clerk, in a similar or ployees are in Part contained prescribed nonpartisan as form duties Title C.E.R. by law; and or local State fully (13) participate in principal regulations Otherwise two are as Tlie affairs, except prohibited public as follows: law, not ma- in manner which does a Permissible activi- [5 C.F.R.] § 733.111 efficiency terially compromise or in- his ties. ( n ) neutrality, employee tegrity an or the engage as employees free All integrity agency. efficiency, of his activity or political in ex- widest (a) (b) Paragraph section this tent consistent with the restrictions employee to en- an subpart. does not authorize imposed Each law this activity political gage violation employee right retains the to— duty, law, in a uni- (1) Register any election; while on or while and vote employee. him as an (2) Express form that identifies his as an iádi- may agency prohibit an privately publicly politi- The head of dividual employee participation subjects of an candidates; or limit the cal agency in an of his (3) Display political picture, or class of a stick- (a) permitted by paragraph er, badge, button; or (4) nonpartisan section, participation Participate in the ac- if this civic, community, social, tivity activities a with the efficient would interfere professional labor, organization, or or duties, performance create of official or organization; of a similar apparent conflict of inter- a or conflict (5) political party a a Be member of ests. par- political organization and or other management Political § 733.122 ticipate in its activities to the extent prohibitions. campaigning; law; consistent with (a) take an ac- An not ( n ) convention, ral- Attend a or tive function, politi- ly, fund-raising or other except per- political campaign, gathering; a cal (7) Sign petition subpart. a as an mitted ; dividual (b) paragraph Activities (8) financial Make a contribution (a) but are of this section include organization; political party a limited to— part, inde- Take an active as an Serving as an officer of a support pendent candidate, an State, National, party, of a a member partisan independent candidate, in a party, or local committee 733.124; election covered of a committee or member officer part, as a candi- Take an active being political club, partisan candidate, support in a of a date or positions. nonpartisan election; candidate every form of conceivable not include context I conclude that the rea- finding express action, provided political sonable federal with an an “permissible” applied “prohibited” or ascertainable standard conduct infringe precision impermissibly re- not does not But such on his to each. automatically quired; By not are First Amendment “statutes the face freedoms. vague simply because dif- of the statute is informed invalidated as he that he determining actively ficulty participate not managing, in whether is found in or marginal campaigning for, partisan political fall within certain offenses a language.” By v. Na- published United candidate or States issue. Dairy Corporation, provisions regula- Products tional the Commission’s 594, 597, 29, 32, 9 L.Ed.2d tions he is informed most com- (1963). Furthermore, monly recurring Commis- factual situations in obtaining provides mechanism for sion a Commission has found the prohibitions advisory opinions apply from the Office of the Act to or applicability apply. Certainly General Counsel as to the standards here specific precise situations more the Hatch Act to than the standards which widely challenge used major circumstances which exist without in other employees.36 statutes,37 federal interested violations of which (2) Organizing reorganizing (13) Initiating circulating parti- or a or a party organization political political nominating petition. or san club; Exceptions general prohibitions from the soliciting, (3) Directly indirectly nonpartisan elections, or for local elections handling, receiving, collecting, majority dis- in in areas which a of voters are assessments, bursing, accounting employees, or for and for certain em- contributions, parti- ployees, spelled for a or other funds in out 733.123-24. §§ political purpose; san affidavit, supra 36. Mondello note Organizing, to, pro- selling tickets 1-2, and attachments. Plaintiffs com- actively moting, participating in a or plain advisory opinions are not partisan fund-raising aof can- necessarily binding, affirmative, ap- if nor didate, political club; party or pealable risking without an enforcement (5) Taking an in man- active ignored negative having opin- action for a aging campaign of a three-judge panel ion. Another of this partisan public candidate for office or however, held, court has that even political party office; alleged infringe- area of First Amendment (6) Becoming partisan a candidate judicial ment relief pub- for, campaigning for, or an elective panoply in advance of the full of Civil office; lic procedures Service enforcement is not support Soliciting votes of or Dingess Hampton, called for. 305 F. opposition partisan to a candidate for Supp. (D.D.C.1969) (opinion of Mc- public office; political party office or Gowan, Judge). procedures Circuit These (8) Acting recorder, watcher, chal- expert provide were intended to an forum polls lenger, or at the similar officer resolving frequent for doubts political party partisan behalf of a or volving “applicability of the various- candidate; ly phrased prohibitions of the Hatch Act (9) Driving polls be- voters to particular they conduct,” provide political party partisan half of or a opportunity subsequent judicial re- candidate; presented view of the constitutional issues (10) Endorsing partisan opposing a or fully developed a Id. “on record.” at 174. public candidate for or office party Compare, politidal g., e. office advertise- standards for determin- ment, campaign literature, liability broadcast, ing forms for various of securi- material; 77q, 77www, 78i, fraud, or similar ties §§ 15 U.S.C. (11) Serving delegate, alternate, 78r, violations, as a & anti-trust 15 U.S.C. proxy political party seq., to a the Internal conven- et and violations of ; Code, tion 7201-15. §§ Revenue 26 U.S.C. specifical- Addressing caucus, convention, These statutes are not directed ly rally, gathering protected or similar of a the First at activities party support opposition Amendment, or in more can strike partisan public severely to a other candidate for office in the areas of constitu- political party office; rights. tional offending party would therefore to cutorial discretion.40 generally subject merely order the Commission review severe, criminal, In the more sanctions. decisions which uncertain remains event that he applicability “tak[ing] specific defined an active of the Act pursue, he he seeks to course of action may campaigns,” change any its to advisory opinion obtain interpretations published and codifica- the Com- Counsel Office of the General greater tion to to this material conform I that mission.38 believe any applicable decisions the Su- required order certainty in is than this preme 7324(a) The Commission’s not Office is Court. find to that 5 U.S.C. § already Counsel has en- vague General impermissibly in the constitution- continuing deavored to do this on a to the statute’s notice as al sense—fair basis,41 and it well that amply employee conduct is limitations on publications kept and decisions have been provided. Supreme

in line deci- with Court’s and other sions the First Amendment IV applicable So, in the absence of laws. Having found that the definition any specific showing illegality prohibited political contained strong likelihood that no substantial not, 7324(a) (2) con- U.S.C. § changes necessary, will be I would not unconstitutionally strued, overbroad jurisdiction retain would rather deny request plaintiffs’ vague, I would merely direct the Commission to review declaratory injunctive for against relief regulations procedures published its operation. its IWhile believe opinion. to ensure conformance interpretation that Commission’s regulation any specific This would leave subject years Section 15 over the since its enact- challenge to individual by largely ment has been consistent with future or con- individual cases appropriate I construction here, have found troversies. I would direct the issuance entirely it has clear that this appropriate of an order to that effect. through accomplished explicitly majority opinion To the extent that prosecutorial the exercise discretion foregoing respectfully differs from the I the enforcement of the Act.39 This doubt stage necessity dissent. in this see no erased, must be for constitutional of our national existence to set aside a properly rely prose- tections cannot affidavit, supra 12, note If, See Mondello this, all after he considers that interpretations provided at 3—4: him violate right has pursue The Office of General Counsel his First Amendment to consistently place op to conduct, endeavored course of lie is of course free scope specific Then, within the of both erations act. the Commission seeks to en- if (e. g., against decisions Wilson United court force the Act him will he have the Commission, F. opportunity ju- States Civil Service full of administrative Supp. 104, D.D.C.1955), litigate and discernible dicial review his judicial generally. We oppor- trends First Amendment claims. This certainly great tunity dispositive are aware advances is not of the issue of the vagueness non, of individual liberties the areas statute’s vel but it is rele- place process taken since plaintiffs’ vague- that have due vant to the extent 1940, attempt represents administer depriva- and we ness claim an asserted currently process. procedure the context tion of due does accepted provide doctrine and other specific, constitutional a forum for resolution of legal allegations deprivation doctrines. such doctrine Should concrete of First interpretation rights. with a strict collide Amendment past Rule, administrative supra affidavit, 39. See Mondello note decisions, policy the cur our at 3—4. are bound which we rent doctrines supra prevail. Baggett, note at will U.S. Cramp, 377; 12 L.Ed.2d S.Ct. 286-287, supra note 7 L.Ed.2d 285. soundly in our statute that is as based governmental is the Hatch framework as am au-

Act. And I thority unable find overrule, for this court Supreme

effect, Court a decision accomplish result. SMALL.

In re ESTATE Madeleine B. No.

Admin. 2507-70. Court, MEMORANDUM AND ORDER District United States District of Columbia. May 24, 1972. GESELL, Judge. District attorney

An unrelated to the deceased drew a will which nominated attor- ney he as executor authorized that percent be allowed ten for his services fee as executor which is maximum pursuant to 20 D.C. Court can allow addition, the at- Code 1705 attesting torney wit- was one of the two 18-104(a) the D.C. nesses. Section that, excep- (1967) provides Code relevant, tions not here devise, legacy, estate, A beneficial gift, power appoint- interest, affecting personal ment of or real or attesting estate, given or made to an or codicil is void as witness a will claiming persons to him and him. question presented is whether The thus was, percent within

the ten commission Code, meaning this section given interest to an attest- a beneficial ing of first This a matter witness. impression jurisdiction. in this language of The all-inclusive (a) section 18-104 establishes designed any in financial was to cover regardless its la terest estate give purpose bel. evident was to maximum effect to wills and at the same time to financial incentive eliminate

Case Details

Case Name: National Ass'n of Letter Carriers v. United States Civil Service Commission

Court Name: District Court, District of Columbia

Date Published: Jul 31, 1972

Citation: 346 F. Supp. 578

Docket Number: Civ. A. 577-71

Court Abbreviation: D.D.C.