Untitled California Attorney General Opinion ( 1991 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 90-943
of :
: October 8, 1991
DANIEL E. LUNGREN :
Attorney General :
:
RODNEY O. LILYQUIST :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE DAVID ROBERTI, MEMBER OF THE CALIFORNIA
SENATE, has requested an opinion on the following question:
May a charter city prohibit former and retired city employees from serving on the
city's civil service commission without violating the equal protection, due process, and freedom of
expression provisions of the California Constitution?
CONCLUSION
A charter city may prohibit former and retired city employees from serving on the
city's civil service commission without violating the equal protection, due process, and freedom of
expression provisions of the California Constitution.
ANALYSIS
Subdivision (a) of section 2 of article I of the California Constitution states:
"Every person may freely speak, write and publish his or her sentiments on all
subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of
speech or press." Subdivision (a) of section 7 of the same article provides: "A person may not be
deprived of life, liberty, or property without due process of law or denied equal protection of the
laws. . . ."
The question presented for resolution is whether these constitutional provisions
would be violated by a charter city prohibiting former and retired city employees from serving on
the city's civil service commission. We conclude that such a prohibition would be constitutional.
While a charter city has broad powers over its internal affairs, such as establishing
the qualifications for its appointive offices (see Ector v. City of Torrance (1973) 10 Cal. 3d 129, 132-
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133), it must act in accordance with constitutional requirements. (See Johnson v. Hamilton (1975)
15 Cal. 3d 461 [charter's residency requirement for candidates for elective offices ruled
unconstitutional]; Bay Area Women's Coalition v. City and County of San Francisco (1978) 78
Cal. App. 3d 961 [five-year residency required for persons appointed to boards and commissions
ruled unconstitutional].) As the Court of Appeal recently summarized in City of Fresno v. Pinedale
County Water Dist. (1986) 184 Cal. App. 3d 840, 844-845:
"The California Constitution provides that a city may adopt a charter giving
it the power to ``make and enforce all ordinances and regulations in respect to
municipal affairs, ... City charters adopted pursuant to this Constitution ... and with
respect to municipal affairs shall supersede all laws inconsistent therewith.'
(Cal.Const., art. XI, § 5, subd. (a), italics added.) Thus, on municipal affairs (matters
of internal or local concern) the city charter is paramount to any inconsistent laws on
the subject enacted by the Legislature, subject to basic constitutional limitations.
[Citations.]"
Cities are not required to have civil service commissions. We are informed that if they
do have one, it is an administrative review body comprised of persons who are appointed by the city
council. The commissioners hear appeals concerning the dismissal, suspension, and demotion of
city employees. The decisions of the commission are binding on the city but are reviewable by a
court.
1. EQUAL PROTECTION
Pursuant to the guarantees set forth in section 7 of article I of the Constitution, "no
person or class of persons shall be denied the same protection of the laws which is enjoyed by other
persons or other classes in like circumstances in their lives, liberty and property, and in their pursuit
of happiness." (People v. Romo (1975) 14 Cal. 3d 189, 196.) "The purpose of the [equal protection]
clause is to secure every person against intentional and arbitrary discrimination, whether occasioned
by express terms of a statute or by its improper execution through duly constituted agents."
(Hinman v. Department of Personnel Admin. (1985) 167 Cal. App. 3d 516, 525.)
However, "[t]his principle of ``equal protection' ... ``does not preclude the state from
drawing any distinctions between different groups of individuals.'" (In re King (1970) 9 Cal. 3d 226,
232.) "[T]he equal protection clause does not require ``absolute equality' [citation], is not ``a demand
that a statute necessarily apply equally to all persons' [citation] and permits a state to ``provide for
differences so long as the result does not amount to ... an "invidious discrimination."' [Citation.]."
(In re Antazo (1970) 3 Cal. 3d 100, 110.)
"``Generally, to satisfy equal protection requirements the legislative classification need
only rationally relate to a conceivable, legitimate state purpose ....'" (Lucas v. Superior Court (1988)
203 Cal. App. 3d 733, 738, see Vehicular Residents Assn. v. Agnos (1990) 222 Cal. App. 3d 996, 999.)
Only if the "scheme imposes a suspect classification ... or a classification which infringes on a
fundamental interest ... [must] the classification ... be closely scrutinized and may be upheld only
if it is necessary for the furtherance of a compelling state interest." (Weber v. City Council (1973)
9 Cal. 3d 950, 958-959; see Johnson v. Hamilton, supra, 15 Cal. 3d 461, 466.)
The classification made here by the city's prohibition involves former and retired city
employees. These persons do not constitute a suspect classification. (See Burrell v. City of Los
Angeles (1989) 209 Cal. App. 3d 568, 585 [treating police and fire department employees different
from other city employees upheld]; Rittenband v. Cory (1984) 159 Cal. App. 3d 410, 419 [examples
of suspect classifications are national origin or alienage and gender]; Bay Area Women's Coalition
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v. City and County of San Francisco, supra, 78 Cal. App. 3d 961, 966 [recent city residents are not
a suspect class, which is one that "has been ``saddled with such disabilities, or subjected to such
history of purposeful unequal treatment' as to justify extraordinary protection"].)
At one time it may have been argued that the appointment to a city board or
commission affected a fundamental right so as to require application of the strict scrutiny test. (See
Zeilenga v. Nelson (1971) 4 Cal. 3d 716, 720; Fort v. Civil Service Commission (1964) 61 Cal. 2d
331, 335; Helena Rubenstein Internat. v. Younger (1977) 71 Cal. App. 3d 406, 418.) Recently,
however, the courts have treated the appointment to public office, standing alone, as not constituting
a fundamental right, utilizing the test of "strict scrutiny only where barriers to candidacy have a real
and appreciable impact upon other fundamental rights, such as the right to vote." (Rittenband v.
Cory (1984) 159 Cal. App. 3d at 421; see Friendly v. Eu (1982) 131 Cal. App. 3d 100, 104; Bay Area
Women's Coalition v. City and County of San Francisco, supra, 78 Cal.App.3d at 966-968; see also
American Party of Texas v. White (1974) 415 U.S. 767, 780, fn. 11; Bullock v. Carter (1972) 405
U.S. 134, 143-144; Johnson v. Hamilton, supra, 15 Cal.3d at 466; Bill v. Williams (1977) 70
Cal. App. 3d 531, 535; DeBottari v. Melendez 44 Cal. App. 3d 910, 915-916.) Since no "other
fundamental rights" are significantly impacted here, the strict scrutiny test does not control our
inquiry.
Applying the appropriate test, then, the issue is whether excluding former and retired
employees from serving on the city's civil service commission is rationally related to a conceivable,
legitimate government interest. We are informed that the prohibition was adopted to prevent the
appearance of favoritism and personal bias when the commission reviews administrative disciplinary
actions. The city is assured that in this sensitive area of employment relations, the decisions
regarding appeals by employees will be made by a neutral body in a fair and impartial manner.
Undoubtedly a legitimate government purpose is the fostering of public trust and
confidence in a city's administrative review process. (See Wall v. Municipal Court (1990) 223
Cal. App. 3d 247, 250 ["The possibility that citizen confidence in the adjudication of ... cases
increases ... is sufficient to justify the ... requirement here"]; Witt v. Morrow (1977) 70 Cal. App. 3d
817, 823 ["It is not just actual improprieties which the law seeks to forestall but also the appearance
of possible improprieties"].)
Significantly, the city's prohibition may be upheld even though former and retired
employees do not have personal knowledge of each current employee and supervisor. (See City of
Los Angeles v. Shpegel-Dimsey, Inc. (1988) 198 Cal. App. 3d 1009, 1024 ["``"Legislatures are
presumed to have acted within their constitutional powers despite the fact that, in practice, their laws
result in some inequality"'"]; Rittenband v. Cory, supra, 159 Cal. App. 3d 410, 427 ["The evidence
that a statute ... is both over-inclusive and under-inclusive ... warrants only the conclusion that such
a statute will sometimes work unfairly and is, perhaps, unwise. Such a statute may not be set aside
on constitutional grounds, however, if any basis reasonably may be conceived to justify it"]; Park
& Shop Markets, Inc. v. City of Berkeley (1981) 116 Cal. App. 3d 78, 92 ["``Although parties
challenging legislation under the Equal Protection Clause may introduce evidence supporting their
claim that it is irrational, ... they cannot prevail so long as "it is evident from all the considerations
... that the question is at least debatable"'"].) Accordingly, we believe that the prohibition in
question would not violate the appropriate test of California's equal protection provision.
2. DUE PROCESS
The same result must be reached with respect to California's due process constitutional
provision, since the standards that must be met are similar. "The cardinal principle of substantive
due process is that a law which deprives a person of life, liberty or property must not be the product
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of arbitrary legislative judgment. Such a law must be reasonably related to the object sought to be
obtained by its enactment." (Loska v. Superior Court (1986) 188 Cal. App. 3d 569, 580; accord,
Lopez v. McMahon (1988) 205 Cal. App. 3d 1510, 1518; see People v. Armstrong (1985) 163
Cal. App. 3d 660, 664.) "So long as the measure is rationally related to a legitimate state interest,
policy determinations as to the need for, and desirability of, the enactment are for the Legislature."
(American Bank & Trust Co. v. Community Hospital (1984) 36 Cal. 3d 359, 369.) "The wisdom of
the legislation is not an issue in analyzing its constitutionality, and neither the availability of less
drastic remedial alternatives nor the legislative failure to solve all related ills at once will invalidate
a statute." (Hale v. Morgan (1978) 22 Cal. 3d 388, 398.)
Without regard, therefore, to whether a "life, liberty or property" interest is involved
here or required for purposes of a due process constitutional claim, we find that the prohibition
against former and retired city employees is reasonably related to the object of public confidence
in the administrative review of city disciplinary actions.
3. FREEDOM OF EXPRESSION
Finally, as to whether the city's prohibition would unconstitutionally "restrain or
abridge liberty of speech," we first note that the prohibition has no effect upon the right of former
and retired employees to run for public office or be appointed to any board or commission other than
the city's civil service commission. It does not prevent them from attending and expressing their
views at a civil service commission meeting. It does not "``restrict expression because of its
message, its ideas, its subject matter, or its content.'" (McCollum v. CBS, Inc. (1988) 202
Cal. App. 3d 989, 999.)
Freedom of expression is clearly a fundamental and broadly encompassing right under
the Constitution. It is one of the rights that is "accorded a preferred place in our democratic society."
(Olivia N. v. National Broadcasting Co. (1981) 126 Cal. App. 3d 488, 492.) It protects "``citizen
participation in, and ultimate control over, government affairs.'" (Spiritual Psychic Science Church
v. City of Azusa (1985) 39 Cal. 3d 501, 512.) "``"[S]peech concerning public affairs is more than self-
expression; it is the essence of self-government."'" (Hofmann Co. v. E.I. DuPont de Nemours Co.
(1988) 202 Cal. App. 3d 390, 406.)
However, we have found no case applying these general principles in a manner that
would suggest a person may not be excluded from serving on an appointive city commission due
to a government interest in promoting impartiality in the decision making process. For example, a
person does have a freedom of expression right with respect to effective participation in the electoral
process, but even here the restriction on the right to vote must be examined in light of the
justification asserted by the government, and any question of its wisdom must be left to the
legislative body. (See Anderson v. Celebrezze (1983) 460 U.S. 780, 786, fn. 7; Storer v. Brown
(1974) 415 U.S. 724, 728-735; United States v. South-Eastern Underwriters Ass'n (1944) 322 U.S.
533, 562; Erum v. Cayetano (9th Cir. 1989) 881 F.2d 689, 692; Service Employees v. Fair Political
Practices (E.D.Cal. 1990) 747 F. Supp. 580, 584.)
Having determined that the city's prohibition meets equal protection and due process
requirements, we are satisfied that it meets the freedom of expression standard as well. For purposes
of the latter constitutional right, the city's prohibition is similar to the prohibitions upheld in Adams
v. Superior Court (1974) 12 Cal. 3d 55 [one-year residency required for jury duty], Ector v. City of
Torrance, supra, 10 Cal. 3d 129 [city residency required for city employees], and Wall v. Municipal
Court, supra, 223 Cal. App. 3d 247 [district residency required for court commissioners]. In each
case persons were excluded from performing public services without violation of their freedom of
expression rights.
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In answer to the question presented, therefore, we conclude that a charter city may
prohibit former and retired city employees from serving on the city's civil service commission
without violating the equal protection, due process, or freedom of expression provisions of the
California Constitution.
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