Kenneth W. SMITH et al., Plaintiffs, v. Cleveland B. FUSSENICH, Commissioner of State Police, et al., Defendants.
Civ. No. B-74-472.
United States District Court, D. Connecticut.
Nov. 3, 1977.
440 F. Supp. 1077
An Order will be entered scheduling a hearing at which additional evidence may be presented, and at which argument will be heard, concerning all of the issues invоlved in this matter.11
that the affidavits only reflect actual costs incurred. Since Amtrak‘s contention is that more should have been spent, it is necessary to ascertain what portion of the hypothetical costs would pass through under the ICC formula, the amended agreement, and the basic contract.
Carl R. Ajello, Atty. Gen., Frank Rogers, Asst. Atty. Gen., Meriden, Conn., for defendants.
Bеfore TIMBERS, Circuit Judge, ZAMPANO and NEWMAN, District Judges.
MEMORANDUM OF DECISION
ZAMPANO, District Judge:
This case, brought pursuant to the provisions of
I
Under Connecticut law,
Under the registration scheme, there is an automatic disqualification of any applicant who has been convicted of a felony. In 1974 alone, there were 103 rejections for registration by the Department of persons
The named plaintiff in the instant case, Kenneth Smith, is a 26 year old white male who was accepted for employment by the Licensee Prudent Investigation Services of Bridgeport, Connecticut. When his application for a license as a security guard was rejected by the Department due to his felony conviction record, this action was instituted.4
II
The main issue before the Court is plaintiff‘s contention that the statute in question is violative of his rights under the Equal Protection Clause of the Fourteenth Amendment.5 In applying equal protection analysis, strict scrutiny of a legislative classification is required only when the statute operates to the particular disadvantage of a suspect class, e. g., Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971) (alienage); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (race); Oyama v. California, 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed.2d 249 (1948) (national origin), or when it impermissibly interferes with the exercise of a fundamental right, e. g., Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969) (vote); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (travel).
Although the right to hold specific employment is a vital and constitutionally protected one, Willner v. Committee On Character, 373 U.S. 96, 102, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963); Greene v. McElroy, 360 U.S. 474, 492, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959), the Supreme Court has emphasized that a standard less than strict scrutiny has consistently been applied to state legislation restricting the availability of employment opportunities. Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1162, 25 L.Ed.2d 491 (1970); see also Massachusetts Bd. Of Retirement v. Murgia, 427 U.S. 307, 314, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976).
The relevant inquiry under the rationality standard of review is whether the challenged state action rationally furthers a legitimate state purpose or interest. San Antonio School District v. Rodriguez, 411 U.S. 1, 55, 93 S.Ct. 1278, 1308, 36 L.Ed.2d 16 (1973); see also Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 64 L.Ed. 989 (1920). In the particular context of occupationаl licensing, the Supreme Court has formulated a test which requires that any qualification must have a rational connection with the applicant‘s fitness or capacity to perform the job. Schware v. Board of Bar Examiners, 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1957).
III
The defendants first contend that the statute‘s across-the-board disqualification of felons as security guards and private detectives is rationally related to the legitimate interest of the State in preventing the criminal element from a business that affects public welfare, morals and safety. In essence, the defendants argue there is an irrebuttable presumption that convicted felons cannot be relied on to exercise traits of honesty, fidelity, integrity and obedience to the law in the performance of their duties as guards and investigators.
For several reasons this justification is unacceptable. While we agree that the State may and should prohibit individuals of bad character from employment as private detectives and security guards, e. g., Lehon v. City of Atlanta, 242 U.S. 53, 37 S.Ct. 70, 61 L.Ed. 145 (1916); Norwood v. Ward, 46 F.2d 312 (S.D.N.Y.1930) (three-judge court), aff‘d mem., 283 U.S. 800, 51 S.Ct. 494, 75 L.Ed. 1422 (1931), the validity of the goal of the statute is not under challenge in this lawsuit. Rather, we are asked to determine whether the method used to achieve that goal is constitutionally defensible. We hold that it is not.
The critical defect in the blanket exclusionary rule here is its overbreadth. The statute is simply not constitutionally tailored to promote the State‘s interest in eliminating corruption in certain designated occupations. The legislation fails to recognize the obvious differences in the fitness and character of those persons with felony records. Felony crimes such as bigamy and income tax evasion have virtuаlly no relevance to an individual‘s performance as a private detective or security guard. In addition, the enactment makes an irrational distinction between those convicted of felonies and those convicted of misdemeanors. Hence, a person is eligible for licensure even though he was convicted of a crime (larceny, false entry, inciting to riot and riot) which may demonstrate his lack of fitness merely because that crime is classified as a misdemeanor under the Connecticut codе. Cf. Butts v. Nichols, supra at 580.
Moreover, the statute‘s across-the-board disqualification fails to consider probable and realistic circumstances in a felon‘s life, including the likelihood of rehabilitation, age at the time of conviction, and other mitigating circumstances related to the nature of the crime and degree of participation. We believe it is fair to assume that many qualified ex-felons are being deprived of employment due to the broad sweep of the statute. Finally, the irrationality of the enactment becоmes most pronounced when it is compared with another Connecticut statute,
In reaching our conclusion that the statute violates equal protection, we have not overlooked the decisions of the Supreme Court in DeVeau v. Braisted, 363 U.S. 144, 80 S.Ct. 1146, 4 L.Ed.2d 1109 (1960) and Hawker v. New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002 (1898). In De Veau, the
Hawker is heavily relied on by the defendants in suppоrt of their argument that a violation of law may be accepted as conclusive evidence of bad character. While language in that case may lend weight to the defendants’ position, the case is distinguishable on the ground that the critical issue under consideration there was whether a law forbidding felons from medical practice violated the ex post facto clause of the Constitution, Article I § 10, when applied to a doctor convicted before the statute was enacted. Moreover, as pointed out in Harris v. Kentucky Board of Barbering, No. C-74-399L(A) at 6 (W.D.Ky. June 13, 1975), recent developments in the law indicate that Hawker no longer has vitality.
IV
Since we find that
If the hearing were to proceed in this manner, with the irrebuttable presumption that a person who has been convicted of committing a crime and who is on probation is unfit to teach in the public schools, it might raise serious constitutional difficulties.
Such irrebuttable presumptions are disfavored under the due process clause, Vlandis v. Kline, 412 U.S. 441, 446, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973), Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (Jan. 21, 1974) and will be overturned if they are found to be neither necessarily nor universally true. LaFleur, [414 U.S. 632, 94 S.Ct. 791]. The Court, however, has upheld the use of a per se rule to exclude a class of persons from a certain occupation, but it did so in the context of a rule which was established after a comprehensive investigation into the relationship between the class of persons excluded (those convicted оf felonies) and the evil sought to be avoided (corrupt practices by waterfront union officials). DeVeau v. Braisted, 363 U.S. 144, 80 S.Ct. 1146, 4 L.Ed.2d 1109 (1960). Where no such legislative finding is present, exclusion from a profession can be justified only after a detailed and particularistic consideration of the relationship between the person involved and the purpose of exclusion. Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957).
V
Finally, we consider the defendant‘s alternative contention that any constitutional infirmity apparent on the face of
There is nothing in the record before us, nor in matter of which we may properly take judicial notice, to indicate that the legislature intended the Board of Pardons to function in any capacity as a licensing authority. All relevant factors point to the conclusion that the Board should not be considered to be part of a licensing process. Traditionally the discretionary power to pardon is a peculiar right of the executive branch of government, the exercise of which is not subject to judicial review. See, e. g., Beacham v. Braterman, 300 F.Supp. 182, 184 (S.D.Fla.) (three-judge court), aff‘d 396 U.S. 12, 90 S.Ct. 153, 24 L.Ed.2d 11 (1969). No rules or regulations govern the Board‘s activities, nor are reasons advanced for its decisions.
Moreover, the plaintiff‘s class consists of all felons affected by
VI
Accordingly, the plaintiff‘s motion for summary judgment is granted; the defendants’ motion for summary judgment is denied. Judgment shall enter declaring
NEWMAN, District Judge (concurring in the result):
I agree that plaintiff cannot be summarily denied registration and thereby employment as a private detective solely because of his prior felony conviction. However, I find it unnecessary to consider the constitutional issue decided by the Court because I believe the pertinent state statutes should
Connecticut‘s scheme for regulating the occupations of private detective and security guard involves two concepts: licensure and registration. No person can engage in the business of (а) a private detective or investigator, or (b) a watchman, guard or patrol service without a license from the Commissioner of State Police.
In 1973, however, the Connecticut General Assembly enacted broad legislation substantially restricting the extent to which a felony conviction can be used as an automatic barrier to employment. Conn.Pub.Acts 73-347. Having made a legislative finding that the public is best protected when criminal offenders are rehabilitated and returned to society prepared to take their places as productive citizens and that the ability of returned offenders to find meaningful employment is directly related to their normal functioning in the community, the legislature announced that it is the policy of this state to encourage all employers to give favorable consideration to providing jobs to qualified individuals, including those who may have criminal conviction records.
Thus, under
The legislative history sheds little light on the scope of the law enforcement agency exception. The floor debates do not consider the issue. See Connecticut General Assembly Proceedings 1973, House Vol. 16, Part 11, pp. 5464-65; id. Senate Vol. 16, Part 5, pp. 2272-73. The record of the Hearings of the Joint Standing Committee on Human Rights & Opportunities, 1973, contains a letter dated March 13, 1973, from the State Police Commissioner to the committee. Id. at 164. In that letter the Commissioner expressed his understanding that the exception applies to hiring by the State Police. He goes on to request that the exception should also extend to licenses and permits issued by the department and he specifically refers to private detectives. That language standing alone might suggest that the Commissioner thought that the exception, as written, did not include licensing and registration. The Commissioner went on to say, however, that [i]f this bill does except the State Police Department in all these areas, we would have no further comment concerning this. It is evident, therefore, that the Commissioner himself was unsure whether or not the exception included licensure and registration. His letter to the committee alerted the legislators to the ambiguity, but they failed to
I think the statute should be narrowly construed to exempt State Police hiring but not licensing and registration. Although the statute exempts any law enforcement agency without specification of agency functions, there are several considerations that point toward a narrow reading exempting only the State Police hiring function. In the first place, the legislature emphatically expressed a broad policy against absolute barriers to employment based on prior felony records. The exception to this policy should be narrowly construed to provide the minimum departure from the legislature‘s rehabilitative objective. Secondly, whatever the public interest in absolute disqualification of felons from employment, that interest is less substantial when the employer is a private detective or private security guard agency than when it is the State Police Department or other State law enforcement agency. Third, reading the exception broadly to include State Police licensure and registration would create anomalies unlikely to have been intended by the legislature. For example, under a broad reading of the exception, a felon would be automatically disqualified from serving as a night watchman for a licensed private agency supplying contract service to a state agency operating sensitive facilities such as the National Guard Armory or Bradley International Airport, but would be eligible for employment if the departments operating these facilities chose to hire him directly. It would also mean that a convicted bigamist would automatically be barred from night watchman employment with a licensed private guard agency, but a convicted embezzler could not automatically be barred from employment as a licensed real estate broker. I doubt that the legislature intended such results. Finally, a broad reading of the law enforcement agency exception would encounter the substantial cоnstitutional objections that a majority of this Court has considered and found to be well taken. Cf. Pordum v. Board of Regents of State of New York, 491 F.2d 1281 (2 Cir.), cert. denied, 419 U.S. 843, 95 S.Ct. 74, 42 L.Ed.2d 71 (1974). Even if some legislators were willing to permit such bizarre results, the statute should make such intention unmistakably clear before a court is called upon to adjudicate its constitutionality. Neither the subsequent practice of the State Police nor the acquiescence of the State Attorney General‘s office in this suit persuades me that the legislature should be relieved of the obligation to make plain the broad authority аsserted by the defendant.
For all these reasons, I conclude that
ZAMPANO
DISTRICT JUDGE