*1 POLLARD, Roger Respondent,

BOARD OF POLICE COMMISSION

ERS, al., Appellants. et

(Two cases)

Nos. 65300. Missouri,

En Banc.

Feb. 1984.

Rehearing Denied March *2 Any any employee officer or department such cities who

shall be found board have vio- lated of this section discharged shall be forthwith from said duty service. It shall chief *3 police prefer charges against any Schmidt, J. Logan, Emmett Karl F. offending person such at once.... Maier, Manfred City, appel- Kansas for lants. § Pollard filed suit under U.S.C. 1983 Rosen, Anton,

Gerald H. Richard H. Kan- seeking against injunction an his termina- City, respondent. sas tion, relief, declaratory claiming (i) and also § not could be enforced with BLACKMAR, Judge. regard to federal because the Roger Pollard, The respondent, was a field preempted by had been certain federal sergeant in City, the Kansas Missouri Po- legislation, (ii) prohibition Department. July 5, lice 1982 he On con- by police contributions officers violated his $1,000, ample tributed of his out own § (iii) rights, first amendment 84.- funds, to a committee formed to deprived persons position in his of the promote candidacy of John Carnes for equal protection of the laws. party primary Repre- nomination in a appellant Board of Police Commis- Congress from sentative Missouri’s Fifth sioners introduced substantial evidence District. Pollard’s contribution was not so- leading about the circumstances to the paid licited or to a member of the Police adoption challenge. under statute Department, and not was made on In 1932 this held that existing premises or while was in he uniform. The providing statutes for state control of the contribution reported was to the Missouri City Department Kansas Police were un- Secretary required by of State as law1 and constitutional. State ex rel. Field v. subject was the newspaper comment. Smith, (banc 329 Mo. S.W.2d 74 When news of Pollard’s contribution 1932). city After control reverted to the came to the superiors attention of his in the police department heavily politi- became police department, steps were taken to ter- belonged par- cized. Policemen who pursuant minate his employment to the fol- ty power discharged. out of were Those § lowing portions 84.830, RSMo 1978. * * * remained, hired, newly who and those were employee No officer or obliged profess adherence and to con- service of police department said shall portion tribute a their salaries directly indirectly give, lend, or pay, or support party. the dominant part salary contribute his or com- There followed substantial discoveries of pensation any money or or other valuable corruption touching de- thing of, any person on account or to partment governmental entire to, but applied promotion any politi- club, party, political City cal structure of any political Kansas and Jackson purpose County.2 whatever. 130.086, Graves, provides 1. Section RSMo that a ex inf. McKittrick v. 346 Mo. 1940); (banc candidate for elective federal office shall be 144 S.W.2d 91 State ex inf. McKit- fully complied deemed Williams, to have with Missouri's trick v. 346 Mo. 144 S.W.2d 98 Campaign (Chapter Finance Disclosure Laws (banc 1940); Pendergast, and United States v. 1978) copies if he files all elective (W.D.Mo.1939) F.Supp. 601 for a discussion of reports required by federal law with the Missou- existing political the then conditions in the Kan- Secretary ri of State. City County governmental sas and Jackson structures. Taylor

2. See State ex v. American inf. Insurance Co., (banc 1946); S.W.2d 1 35S Mo. legisla- might have influenced predecessor of 84.830 enacted which was returning the ture. in 1939 as a of the act Department

Kansas Police to state recognizing although judge, The trial the direction of by placing control it under interest in elimi- is “a vital state that there consisting mayor and four a board depart- corruption nating governor. appointed commissioners ment, in eliminating political interference,” Missouri, p. The statute Laws of 1939 545. nevertheless held that the area had been provision enlarged in when the was preempted by legislation, insofar as The evidence now before us was added.3 involved, federal elections are and that the compulsory political contribu- showed that deprived statute Pollard of first amend- (known collo- public employees tions from ment rights. Reinstatement with pay back important to a quially lug”)4 as “the were along ordered attorneys’ with pur- fees political control. scheme of suant to 42 U.S.C. 1988. judge ana- lyzed the issues and stated his sought to demon conclusions appellants *4 thoughtful a argument opinion, that the memorandum by and strate evidence which we have considered carefully. de challenged portion of the statute was disagree nevertheless police and the with his signed protect to officers conclusions and reverse judgments.5 political impaction of the law public from machinery. The law seeks to enforcement Preemption I. in law persons aspiring to careers assure they obliged are not preemption enforcement that The trial court found § 453, public display political reading affiliation as fol- wording make of 2 U.S.C. political dignitar to the or defer wishes lows: guarantee and ies in order to retention Act, provisions of this and of rules they may the full promotion, and that have Act, and supersede this prescribed under meager compensation their often

benefit of law with preempt any provision of State lug. The statute addi by undiminished office. respect to election to Federal police pro proclaim tionally serves form present assumed its 2 U.S.C. 453 public, to the free tection will be available amending a a 1971 as a of bill police that the and from jolitical_overtones, Election the “Federal enactment known as give them impartially with all who will deal Campaign Act of 1971.” legislature may have had the concern. The expressed purpose The 1971 statute ranking police officers thought further follows: political power brokers might function as in the con- practices fair promote To from freely induce contributions they could for Federal election duct of All of these reasons their subordinates. political offices ... of—substantial state interest are matters titles, cover- contained four not con- The statute of course are concern. We and (1) campaign follows: ing subject matter as legislation, cerned with the wisdom communications, treating of relations be- background appropriate factual and the media; campaigns and political tween the considerations only to demonstrate winged guarding south entrance Mo.1943, p. steeds 727. 3. Laws Hall, completed City’s imposing to Kansas 84.830, Only portion RSMo 1978 is of § "Cut” and popularly christened were prohibits a case. The statute material to this they concrete. "Lug” were set in as soon as activities, including variety solicitation officers, solici- from contributions and and use of research has made 5. The writer against police premises, retaliation tation on by Judge employed phraseology sometimes contribute, restric- and other those who fail to an earlier Billings opinion circulated at in an department designed insulate the tions stage. political influence. (codified 92-225, at 2 ‘‘[M]oney by politicians Dic- 4. Lug, ..." 86 Stat. 3-20 exacted Pub.L. No. 1967). (Crowell, (Supp. Slang, II tionary American U.S.C. 431-54 §§ 1972». (2) Code, amendments to the Criminal political committees, Title and but does not 18, U.S.C.; (3) disclosure of federal cam- State laws as to the manner affect funds; paign Provisions,” “General candidate, qualifying as a or the dates including in Section then codified as 2 places elections. § 453, U.S.C. pre- disclaimer of federal S.Conf.Rep. Sess., Cong., No. 93rd 2d emption. None of had the reprinted Cong. in 1974 U.S.Code & Ad. relationship least protection added). (emphasis News political service from influences. The Conference Committee also noted purpose of the 1974 federal statute7 the inclusion of amendments to the expressed as follows: Hatch Act the 1974 amendatory impose To overall limitations cam- act expression was not an of a desire to paign expenditures contribu- preempt state laws in that field of concern. tions; provide that each candidate for report stated: Federal office designate shall principal It is the intent of the conferees that campaign committee; provide for a regulating State law activi- single reporting responsibility with re- ties of State and local officers and em- spect receipts and expenditures by cer- ployees preempted is not superseded political committees; tain change the amendments to title United times filing for the reports regarding Code, States made legislation. this campaign expenditures con- (emphasis added). Id. at 5669 Similarly, tributions; provide financ- Report the House regula- states that “[t]he *5 ing of nominating Presidential conven- political tion of activities of State and local tions and primary elections; Presidential employees largely would be left to the and for other purposes. H.Rep. States.” No. 1239 Cong., 93rd 2d Only 2 Titles and 3 of the 1974 statute FEC, reprinted Sess. Legisla- are amendatory of the 1971 statute. The 197Ip History tive the Amendments 1974 act amends the corresponding section Act, the Federal Election Campaign at of the provide 1971 act to express pre- for emption, in the language set out above. An examination of the Senate debate on Even if a reader of the language bare amendatory the 1974 empha- act further might question have some scope as to the that, by including sizes amendments to the express of the preemption, legislative the bill, federal Hatch Act in legislature the history clearly Congress shows that did not preempt did not intend to regu- state laws § preemption intend the language of 453 to lating political activities of state and annul Acts, state little Hatch and other employees local in federal elections. The § laws, 84.830, state such as having similar following exchange between Senator Ste- purpose. incidence and overwhelming Cannon, vens and Senator manag- the floor concern was revision of the Federal Elec- bill, er of exemplifies point: this tion Campaign Act legislative of 1971. The President, MR. just STEVENS: Mr. 1 history makes it clear that U.S.C. clarify minute. I should like to some- was intended preempt the limited thing, may, if I manager with the of the field of imposing statutes restrictions on bill. candidates for federal office and their cam- paign committees. The provision Conference Com- A of this bill amends section explained mittee purpose that relating of title 5 activity follows: employees State or local in Federal cam- paigns.

It Specifically, is clear that the it occupies Federal takes out subsec- Law (a)(3), respect prohibits field with reporting and which a State or disclosure of employee contributions to local officer or taking from an expenditures by and Federal part management active 93-443, (codi- (1976)). 7. Pub.L. No. 88 Stat. 1263-1304 fied as amended at 2 U.S.C. §§ 431-55 (1974) political campaigns, Cong.Rec. (emphasis add- and substitutes S34386 ed). being a prohibition that a from candidate office. Federal Bill Similarly, summary House prepared by the Center for Public Financ- my understanding, It and I should Elections, ing inserted into the record bill, manager my like to ask during House debates on the Con- floor (Mr. Cannon), if friend from Nevada he Report by Congressman Young of ference agrees that this means that State laws Georgia, “[rjemoves noted that the bill employee, prohibit State or lo- voluntary Hatch Act activi- restrictions on prohibit employ- cal laws which a local employees ties in federal State local ee, engaging in Federal from prohibited by not otherwise campaigns, activities and Federal are State law.” Cong.Rec. still valid? ... added). (emphasis quite I important, think it is because history just legislative The value of the many our States have so-called simply is not diminished discussed because Act, little and it was not our Hatch immediate discussion focused repeal “little Hatch intent those ” amendments Title 5 of the United States Acts, them, modify but to take it or to Code, regulation of contributions while out Federal so that law Federal language preemption codi- activities, prohibit law does not those amendatory fied in Title 2. The 1974 act leaving up to the State do so. modified of Titles The Senator is abso- MR. CANNON: unlikely de- highly and 47. It is lutely correct. Section 401 House mentally provi- baters sorted the several title amendment amended section according to sions the bill before them 5, U.S.Code, relating influencing elec- showing what help title. The debates us tions, taking part political campaigns, Congress trying to do and what it was prohibitions, exceptions, provide to do. trying employ- and local officers apparent foregoing It ees an may take active intend, enacting Congress did not *6 management political campaigns, and in § 453, preempt state to a broad field of they except may that not be candidates rather, legislative history, re law. The for elective office. Congressional purpose of veals a manifest is conference substitute the same The regulating not preempting state laws It as the House amendment. public or political activities of state local

intent State conferees of employees, whether or not related to feder regulating political activity law of amendatory The of 1974 al elections. act employees local State or officers respect with to preempts the field preempted, superseded but [sic].8 and their committees. if We want to make it clear that did § 84.830, conclude, therefore, prohibited State has not those kinds 1978, respect is not “with to a law activities, permissible Fed- it would in be office,” scope within the to federal election eral elections.... §of up It is MR. STEVENS: II. First Amendment they to extent determine in (public employees) may participate respon- court also held that the The trial elections? Federal right make dent had a first amendment cases, in right. MR. CANNON: The Senator is issue. Numerous contribution years, make hold that The that determination. decided over States superseded." superseded" "or phrase, “but seems be in- should read 8. The undoubtedly with the context and consistent

339 support may expression activities of servants be sub- a con evidenced restricted, stantially 21, 96 though even like activ- U.S. at S.Ct. at 635. tribution.” private ities on the citizens United States The strongly protected by be amend- the first recognized government’s that the inter has ment. regulating est both the conduct and Mayor speech employees significant The case of its differs McAuliffe Bedford, ly regulating New 155 Mass. N.E. 517 its interest in those ac citizenry general. dealt with termination of tivities of the United department regula Mitchell, officer for violation Workers America v. Public by membership committee, party tions in a 330 U.S. 67 S.Ct. L.Ed. 754 soliciting (1947); and also contribu United States Service Com Civil tions. Justice ex Oliver Wendell Holmes mission v. National Letter Association pressed CarHers, eloquence, with himself his usual 413 U.S. 93 S.Ct. (1973); as follows: Pickering Education, 563, 568, U.S. Board petitioner may have a constitutional 1731, 1734, L.Ed.2d right politics, to talk but he no con- has governmental strong This is even interest right policeman. stitutional to be a er, anything, application police in its employments There are few hire in emp government compared men to other which the agree servant does not sus- loyees.9 pend his constitutional of free speech as of as well idleness the im- Federal, govern state local plied terms of his contract. The servant right place have the ments restrictions complain, employ- cannot as he takes the their employees conduct of ment on the terms which are offered when “such restrictions serve valid and him. principle city may On the same important state interests.” Broadrick v. impose any upon reasonable condition Oklahoma, 601, 606, holding offices within its control.... jurist undoubtedly goal venerable over- balance the interest em citizen, wrote opinion sug- exercising to the extent that ployee his as a first gests public employees may rights, disci- interest of amendment plined if they simply politics,” “talk government, promoting but his as an employer, words important nevertheless efficiency impartiality illustrate an point. The activities involved in case Pickering services. v. Board Educa before clearly tion, him were of a kind which are U.S. at at 1734. subject regulation, governmental present as the below important citations interests demonstrate, his lesson remains valua- case the instant are described *7 demonstrating ble in public employees introductory opinion. that portion of this may appropriately special subjected Valeo, Buckley supra, making v. after regulations covering political activities. political clear that and ex- contributions on penditures protection Limitations contribu are within the of the first, amendment, tions concededly involve substantial first went on sustain sub- rights. rights compre upheld amendment These restrictions. stantial The hend both of free very freedom association and strict limits on individual contribu- Valeo, tions, 424 expression. Buckley though dom of limitations v. even the would 1, 612, (1976). necessarily preclude persons U.S. 96 S.Ct. affluent from political campaign they might all as using fully Section 84.830 their means as bans prevents “symbolic promotion political the in favored contributions and like the Schicker, 455, (E.D. 1001, (1980); Note, F.Supp. tings Const.L.Q. 9. Otten v. 492 457 1011-14 Cir.1981). 1980), (8th aff'd, 655 F.2d 142 He Second-Class Citi- Mo. The Policeman: Must Be A Finck, Nonpartban Regard Speech Police First See abo in the With To Hb Amendment zen 536, Pickering, Rights? 7 Has- Department: 46 N.Y.U.L.Rev. 537-39 The Aftermath of 340 Garsaud, 1062, 1064 opinion 594 F.2d

causes. The observed a re- Bruno v. Cir.1979), in- (5th analysis pur- striction on is less contributions much contains no and rights trusive a on questioning validity than restriction est dicta its association, assembly, expression and against na- prohibition contributions to which, public employees insofar as are con- local by employees causes tional cerned, concededly subject are to substan- complained of governments. opinion The tial limitation. record before the inadequacy court, present quite record is whereas recognize of course the state’s complete regulation. on need pro establishing, burden of when Dallas, City 704 F.2d 160 v. Wachsman restrict by tected the first amendment are — cert, U.S.-, Cir.1983), denied, (5th public purposes, ed in interest of other 537, dealt 78 L.Ed.2d 104 S.Ct. least re employed that the means are the city prohibition on with a contributions leg appropriate strictive to the task.10 no only, so there was council races however, believed, might islature well have express occasion a conclusion on on statute limitations simply The court issues now us. before suggested byor the trial by respondent not explained dictum did why Bruno' purpose. court would frustrate its not our con- apply. These cases do shake all suggested prohibition is on It clusion. city police officers contributions necessary to is more restrictive than of Missouri The interest the State in- important promote the state interests regulating offi contributions volved, prohibition to local while a limited strong is all the cers to national campaigns, campaigns, or to state and local De City Police er insofar as the Kansas might legislature have stand. depart partment is concerned because good prohibition to think that reason substantially has ment removed been to federal candidates which did extend an instrumen local control and constituted elections would be futile. legislation of tality state -the national major parties operate two on a part. rel. is a See State ex which 84.830 federal, function in state basis and 368, 283 S.W.2d Spink Kemp, v. Mo. dissenting opinion of local contests. See (banc 1955). politics and national Finkel, 445 v. Justice Powell Branti relationship. close very have U.S. three at all Candidates stat judge/found that the The trial August primary levels run in the in that unconstitutionally overbroad ute general A contribu- elections. November “nonparti relating to it restricts activities congressional well candidate to a partisan ones. san” elections as well might politicians have the local who benefit regulating precedent for ample There is made cause with that candidate. common employees activities moreover, integral is an primary, elected, elections which candidates v. process. United States electoral only in the nonpartisan and which are Classic, U.S. appear do not party labels sense that (1941); Allwright, v. L.Ed. 1368 Smith Dallas, the ballot. Wachsman 987, (1944). L.Ed. U.S. (1st 560 F.2d 22 supra; Lynch, Magill Cir.1977). may play substantial Parties for the authority is cited Only scanty their labels *8 roles elections from which contribu- a on suggestion that limitation judicial notice goes are barred. We take too far. tions national 60, 536, 479, 488, Tucker, California, S.Ct. 4 L.Ed.2d U.S. 80 81 362 364 U.S. v. 10. See Shelton (1960); 252, (1960). Associa- 247, also American Communications See 559 231 5 L.Ed.2d S.Ct. 382, 674, 307-08, Douds, 288, 70 S.Ct. 94 Alabama, tion v. 339 U.S. 84 U.S. 377 NAACP v. State, (1950); U.S. 1313-14, (1964); v. 308 1302, Lou- L.Ed. Schneider 925 L.Ed.2d 325 12 S.Ct. 150-52, 146, 293, 147, 161-65, NAACP, 155 84 L.Ed. 60 S.Ct. U.S. v. 366 Gremillion isiana ex rel. (1961); Talley 1333, v. 301 6 L.Ed.2d 81 S.Ct.

341 Charter,11 elections under City’s produce Kansas of small donations could a 1926, which has been in effect sum. for the since are substantial There was reason “nonpartisan,” legislature problems nothing de- conclude that short respond of scribed evidence arose while this charter a total to the evils ban operation. may proper- was in statute shown the evidence.

ly applied to all candi- elections at which ample justification The cases furnish for dates stand office. regulations against serving police officers committees, political on at working determining In claims over- polls, funds, raising political running for breadth, our construction of statute is office, public engaging similar activi- give obliged definitive and are it we a designed promote ties causes valid, construction which will it render and to advance fortunes candidates. possible. Chaplinsky Hampshire, v. New A total on ban contributions is a 568, 766, 315 62 U.S. S.Ct. 86 L.Ed. 1031 nature, restriction the same un- (1942); Rampton, 902, Elder v. 413 U.S. 93 doubtedly regula- less than intrusive some 3062, (1973); S.Ct. 37 Mining L.Ed.2d 1020 consistently tions which have been sus- Wheeler, (W.D.Mo. F.Supp. v. 378 1115 Valeo, Buckley tained. 424 U.S. at 1974). See v. statutory language “political 20, 96 at S.Ct. 635. political club, party, or any political pur pose whatsoever,” with construction aided vary Court has used by the familiar maxims of ejusdem gener- ing language expostulating public 12 sociis,13bespeaks is and noscitur a elec interest justify which must be shown to tions at which public stand on limitations are rights which within The respondent’s appro office. is conduct protection. aura of the first amendment’s priately regulated, held, as we have and the Valeo, 64, Buckley supra, page refers v. at statute does not cast shadow on the law page “exacting 96 S.Ct. -656 at constitu fulness conduct others which is be scrutiny,” places tional and at other yond scope regulation. “weighty gov interests” and “substantial 68,

Least sug 29, substantial of all is the ernmental interests.'” Id. at 96 gestion 640, that the total ban on con S.Ct. 658. at Broaderick v. Oklaho ma, tribution is necessary, speaks more restrictive than supra, pages 413 U.S. at 611- 12, and that a limitation on the page amounts would at “compelling 2915 of sufficiently legislature's purpose. society.” Carriers, serve the supra, needs of Letter The modest contributor 413 page page makes U.S. at 93 S.Ct. at and a sup “important record demonstration mentions interests.” These port. Valeo, 20-21, Buckley supportive v. 96 the we deem U.S. decisions most legislature S.Ct. 635. The properly could our Other recent conclusion. cases use very phrase “compelling conclude that this is the government demonstra interest.” tion a should Press-Enterprise Corporation officer not make. With See v. Su- — U.S.-, large metropol perior number of officers on California, Court of force, —, moreover, itan aggrega- S.Ct. 576, 581, 2524, 2527, ette, judicial 11. Our can take notice of the U.S. Sands, (1981), of the Kansas citing home rule charter. L.Ed.2d 2A Sutherland Const, VI, art. ex 1973). Mo. 19. See State rel. Voss (4th Statutory Construction 47.17 ed. Davis, (Mo.1967); v. 418 S.W.2d Nasta- Cinnamon, (Mo. sio 295 S.W.2d sociis, 13. "The maxim noscitur a that a word ^ 1956). keeps, company not an known while rule, wisely inescapable applied is often where a ejusdem generis, rule of an aid statuto- many meanings capable word order ry problems, suggests construction "that where giving avoid ...” in unintended breadth general specific words follow enumeration of statutory & construction. Jarecki G.D. Searle general person things, or words should be Co., persons things limited to similar to those specifically enumerated." United States v. Turk- *9 WELLIVER,

(1984); Judge, dissenting. Brown v. Socialist Workers ’74 Committee, 459 U.S. Campaign examining I respectfully dissent. After 74 L.Ed.2d 250 Elec- legislative history of the Federal no particularly find discussion which is 1974, I Campaign it is Act of believe helpful showing in in how differences questionable Congress whether intended might phraseology just quan- be described preempt that Act to all state and local tified, say but do not hesitate to that the regulating of state enactments the conduct protecting government employees interest of the state in the metro- and local politan officers. police department campaigns federal elective Nevertheless, I believe we should affirm substantial, domination and influence is judgment the trial court because significant, important compelling. The § 84.830, applied in this opinion quotation Judge Donnelly’s well case, protected impinges rights by on involved, analyzes and the the interests First Amendment. these regulation protect need for inter- developed ests is well in the evidence. as a legislature enacted of Kan- means to eliminate the involvement Bums, Elrod v. City police sas officials (1976), 49 L.Ed.2d 547 cited public prevent and to the abuses office dissent, respondent and in the and the com- power during had an earlier occurred Finkel, supra, panion case of Branti v. city’s history. period of that turbulent distinguishable completely because each designed pur- While to serve meritorious on case limitation freedom poses, also it is manifest that statute discharged employees association of implicates rights expression and as- designed not inter- was serve Amend- protected by the First sociation interest, rather, personal est. The was Valeo, 424 U.S. Buckley ment. See who, office, assuming official on 635-37, 21-25, simply undertook to terminate subordinates statute constitutes Whether the they opposing polit- adhered to the because First permissible infringement these party. ical by weigh- is determined Amendment ing magnitude the state’s interest respondent’s regulating conduct. III. recently articulated a useful Fifth Circuit finally alleged petition It is analysis: method of Equal Protection 84.830 violates the applied ... The standard to Clause of the United States Constitution. severity impairment function argument This relied on amendment interests. As the bur- first appeal. It trial court or briefed on is also impairing core first comes closer to den lacking analogous in merit. Statutes values, impairs some ... amendment here one involved have withstood similar given value more sub- first amendment Schicker, See, 655 F.2d attacks. Otten v. requisite stantially, ... closeness Cir.1981), (8th F.Supp. affing, according- increases fit of means and end (E.D.Mo.1980). 455, 459 po- ly_ partisan [Restrictions are reversed and the judgments activity public employees and litical dis- with directions to are remanded officers, activity cases contains where such elements, petition. miss the ... are nonspeech substantial constitutionally permissible justified necessity ... to burden reasonable C.J., HIGGINS, GUNN, RENDLEN, a compelling achieve those activities to JJ., BILLINGS, concur. public objective. DONNELLY, JJ., Dallas, F.2d dis- Wachsmann WELLIVER — cert, denied, U.S.-, Cir.), (5th opinions filed. separate sent *10 (1983), quot- City police or, matter, sas officer for that ing Commission, Mortal v. Judiciary 565 by judge of this potential Court. The for cert, (5th Cir.1977)(en banc), § F.2d abuses the kind designed 84.830 was denied, simply to correct great is not that in the added). (emphasis case of candidates for federal office. Therefore, I believe the state’s

The United interest States being does not rise to the level of Buckley recognized “compel- v. Valeo that the First ling” permits respect Amendment with to campaigns. reasonable such limitations Giv- right protected to en the contribute to election cam- nature of the at paigns. case, Wachsmann City Valeo, Dallas stake this Buckley supra, provides example an regulation of a which I principal opinion believe the accords the permissibly government restricts a employ- legislature far too much discretion in deter- right ee’s campaign to make a contribution. mining the accomplish means to be used to The Fifth Circuit there sustained a munici- purpose. reasons, its foregoing For the I pal prohibiting ordinance § contributions 84.830, too would hold insofar as it total- city employees to city candidates for the ly prohibits contributions to a candidate for council. The Court spe- identified several office, applied. unconstitutional as present cial circumstances in that case that tended justify to prohibition. First the DONNELLY, Judge, dissenting. proscribed ordinance contributions appeal This is an from an order reinstat- category limited of elective offices. ing respondent as an officer of the Kansas Second, these offices had a close nexus to City, Department. Missouri Police While government employees affected an officer in City Depart- the Kansas Police Finally, ordinance. the ordinance left em- ment, $1,000 respondent made a contribu- ployees with opportunity to exercise tion to the committee of John right their contribute other elections. Carnes, a candidate for election Unit- here, court observed: “But while it is ed Representatives. States House of Re- absolute, the ban is on contributions in a § spondent charged violating with 84.- particular type election, not all elections. prohibits any Kan- It is directly tied City’s interest.” sas contributing officer from 704 F.2d at 174. The Fifth ex- Circuit any political party, purpose: club or pressed a similar view Bruno v. Gar- “No employee officer or in the service saud, (5th Cir.1979). F.2d police department said directly shall or In contrast to the ordinance in Wa- lend, indirectly give, pay, or contribute chsmann, appear prohib- any part salary compensation of his or or it contributions in campaigns, they all be any money or other thing valuable local, for state or federal office. For this of, person to, on account or applied to be reason, I believe we must hold the statute promotion any political party, po- applied unconstitutional as in this case un- club, any political litical purpose what- less the state demonstrates that it is neces- ever.” sary achieving for compelling governmen- affording respondent After hearing objectives. tal my opinion, In the state’s matter, the Board of Police Commis- may sufficiently interest compelling discharged sioners him ordered from the prohibition warrant a on contributions to Respondent petitioned force. office, for state candidates well as candi- Circuit County injunc- Court of Jackson city dates for office. But this is not the declaratory tive and question Respondent relief. before us. Our concern here is challenged finding prohibit- constitutionality state interest in 84.- totally ing campaign alleging contributions to it violates the First Amend- I for federal office. fail to see what delete- ment of the United States Constitution in deprives rious effects would result from a him expres- contribu- that it of freedom of Congress tion to a candidate a Kan- partici- sion and association and freedom to pate process] trial cal political process. The survive constitutional sponte court raised issue challenge, sua of wheth- some must further vital *11 Campaign er the Act Federal Election government by end a means that is least § preempts 84.830. of restrictive freedom belief associa- end, achieving in and the benefit appeal May question The on is: essential gained outweigh must the loss of constitu- § 84.830, deprive a be used tionally rights.” protected right to police Kansas officer of his campaign a a candi- make contribution to government by The asserted “vital end” date for election to the United States in is appellants their brief as follows: Representatives? House political neutrality po “When the of a On Preemption compromised, Issue: November lice is there is department Supreme ad- department the United States tendency a for control of the in question preemption dressed the Al- thereby to be from the transferred Chief Airlines, Taxation oha Inc. Director politicians power the the of Police to at * * * — Hawaii, U.S.-, S.Ct. jeopar time. interest of L.Ed.2d 10 (1983). teaching of Aloha politicalization dized the risk that this a with that when this Court is confronted adversely goals will the of law affect * * * unambiguously federal statute which officials, enforcement law, preempts may this state “avoid community engendered by harm to the by looking beyond the lan- direct conflict reputation of its diminished * * * guage of to Con- statute] [the department. department it gress’s purpose enacting the statute.” suffers, politicalization self this because a is inimical to the maintenance of merit view, my preemption In as to election * * * promotion, system hiring must be found from Federal office § 453, explicit language employment depart which and makes U.S.C. qualified recruits, reads as follows: ment less attractive * * 4 department there and because Act, “The of this and of trust of the Act, loses the confidence and prescribed super- rules under this Permitting partisan political con public. preempt any provision sede and of State debilitating can a respect to election to Federal tributions also have law with morale, discipline, office.” and es- effect on corps department. pirit de ambiguity an This Court cannot create performance of the individual of “The proscriptions where none exists. The partici by his adversely ficer is affected may case. imposed not be this partisan politics, he pation in because It is well set- The Constitutional Issue: un persistent fears conflicts between the tled that a limitation contribu- discharge his official duties and biased First Amendment tions involves substantial partisan politicians interests rights. Valeo, 424 Buckley v. U.S. * 4 * support. pledged he has whom In this S.Ct. particularly danger These conflicts are area, a must constitutionally sensitive light of a officer’s direct ous justify challenged applications of its laws. elec contact with the electorate Burns, 347, 361, 96 In 427 U.S. Elrod process. toral (1976), 49 L.Ed.2d S.Ct. case, “Finally, as in this where States Court addressed United public partisan polit officer who makes may a State force question whether supervi ical functions in a contribution relinquish right to employee to his sory capacity, the contribution has holding price as the political association chilling affect on the First Amendment public job, and articulated test short, his com of those officers under appeal: “In applied on this should be a different public em- mand who are of conditioning retention of 4 politi- persuasion. [non-participation ployment on my view, In suggested no state interests justify sufficient to the restriction on rights challenged

constitutional ap- on this

peal. paint We need not with a broad

brush this case. Liverpool, See New Philadelphia

York and S.S. Co. v. Com- 33, 39, Emigration, missioners 28 L.Ed. 899

need not hold 84.830 unconstitutional. *12 apply”

We can “tailor and 84.830 “in a

manner that avoids” such a result. God-

frey Georgia, 420, 428, I may hold not be deprive

used to respondent right of his

make a contribution to a candidate for elec-

tion to the Repre- United States House of

sentatives. Section 84.830 would remain a

viable constraint on activity not

related to election to Federal office.

I dissent. COMPANY,

ROYAL INDEMNITY

Corporation, Plaintiff-Respondent,

Irving SHULL, al., J. et

Defendants-Appellants.

No. 65401. Missouri, Court of

En Banc.

Feb. 1984.

Rehearing Denied March