Atchison v. CAREER SERVICE COUNCIL OF STATE

THOMAS, Justice,

dissenting, with whom ROSE, Justice, joins.

I have tried very hard to accept the resolution of this case in accordance with the views expressed in the majority opinion, but I am unable to do so. It is my view that we are confronted with administrative action which was contrary to a significant constitutional right of Edward M. Atchison, and that we should hold that agency action unlawful and set it aside. It even may be that I am unduly expanding upon the ambit of this appeal, but my concern over a constitutional right which I regard as fundamental compels me to do so.

My point of departure is language appearing on page 23 of the majority opinion. It there is said:

“It is indisputable that the director of the Department placed an impermissible, improper and unconstitutional condition upon the lateral transfer; namely, appellant was required to abandon his challenge to the determination that he did not qualify for the supervisor position. ‡ * sfc it

The language quoted above was presaged by the following comment found in the statement of facts at page 19 of the majority opinion:

“ * * * On or about February 23, 1978, appellant met with the director of the Department at which time the director asked appellant to remain in the Department and to accept the second supervised position in the developmental disabilities unit on the condition that appellant qualify for the second position for which the minimum qualifications had not, at that time, been established, and on the further condition that appellant abandon his grievance as to his failure to qualify for the supervisor position. * * * ” (Emphasis added.)

The majority of the court choose to treat with this as an issue with respect to whether the agency observed the procedure required by law, which it is mandated to do by § 9^-114(c)(ii)(D), W.S.1977 (now found at § 16-3-114(c)(ii)(D), W.S.1977 Oct. 1982 Rev.). That procedure required the extension of an opportunity for lateral transfer, if possible. The majority then concludes that since as a matter of fact the record demonstrates there was no nexus between the unlawful condition and Atchi-son’s rejection of the offer of lateral transfer the unlawful condition may be disregarded. The majority holds that the court is not confronted with agency action, findings, or conclusions which are “without observance of procedure required by law” because Atchison said he was not subjectively affected by the unlawful condition.

For me this disposition simply fails to recognize the more significant question as to whether this is agency action “contrary to constitutional right,” which would be vio-lative of § 9 — 4—114(c)(ii)(B), W.S.1977 (now found at § 16-3-114(c)(ii)(B), W.S.1977, Oct.1982 Rev.). While at one point this issue was subject to debate, it is the law of this case that Edward M. Atchison was entitled to pursue his grievance. Atchison’s right to pursue that grievance is protected by the due process clauses of both the state and federal constitutions.¹ As this court said in Bulova Watch Company v. Zale Jewelry Company of Cheyenne, Wyo., 371 P.2d 409, 417 (1962):

“Article 1, § 6, Wyoming Constitution, requires that lawful process be employed before a person is deprived of life, liberty or property. The liberty envisioned is not alone a liberty of person such as is offended by enslavement, imprisonment or other restraint. It contemplates a person’s liberty to do all that is not made unlawful. * * * ”

This language would encompass Atchison’s right to pursue his grievance in accordance with the applicable rules.

The chilling effect upon Atchison’s exercise of his constitutional right to pursue his grievance of the “impermissible, improper and unconstitutional condition upon the lateral transfer; namely, appellant was required to abandon his challenge to the determination that he did not qualify for the supervisor position” is obvious. It becomes the paramount consideration in this case. In other contexts the Supreme Court of the United States has spoken against the chilling effect of certain kinds of State action. In Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972), the court said:

“For at least a quarter-century, this Court has made clear that even though a person has no ‘right’ to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to ‘produce a result which [it] could not command directly.’ [Citation.] Such interference with constitutional rights is impermissible.”

Of similar effect is Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274,97 S.Ct. 568, 50 L.Ed.2d 471 (1977). In Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 1799, 52 L.Ed.2d 261, reh. denied 433 U.S. 915, 97 S.Ct. 2989, 53 L.Ed.2d 1102 (1977), the following language is found:

“ * * * Equally clear is the proposition that a government may not require an individual to relinquish rights guaranteed him by the First Amendment as a condition of public employment. * * * ”

In Louisiana ex rel. P.F. Gremillion v. National Association For The Advancement of Colored People, 366 U.S. 293, 81 S.Ct. 1333, 1335, 6 L.Ed.2d 301 (1961), the Court stated with respect to the right of due process:

“It is not consonant with due process to require a person to swear to a fact that he cannot be expected to know (cf. Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519) or alternatively to refrain from a wholly lawful activity.”

As a matter of public policy, the State of Wyoming cannot accept in any form agency action that is so obviously designed to inhibit the exercise of a constitutional right. To prevent such impermissible, improper and unconstitutional conditions from being attached to the exercise of their rights by citizens this court should hold unlawful and set aside the agency action which entails such a chilling effect. Otherwise, who could be expected to resist the temptation to condition agency action required by law upon the relinquishment of constitutional rights? If the offeree succumbed the matter never would be tested, and if he did not there always would be the opportunity to protect such unlawful conduct by asserting that it had no subjective impact upon the citizen’s decision.

It is for this reason that the violation of subsection (B) of our statute cannot be justified in the same manner as that in which the majority opinion has attempted to justify the asserted violation of subsection (D) of the statute. The right to due process is a fundamental constitutional right. In Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 1439, 18 L.Ed.2d 527 (1967), the Supreme Court discusses the primacy of due process in this language:

“ * * * Due process of law is the primary and indispensable foundation of individual freedom. It is the basic and essential term in the social compact which defines the rights of the individual and delimits the powers which a state may exercise. * * * ft

This right cannot be burdened with a requirement that a nexus be shown between the condition of relinquishment of the right in order to accept the State’s offer and the citizen’s decision in refusing the offer. This does, however, appear to be the thrust of the majority opinion in this case. The court is saying, in effect, that if the employee expresses a subjective state of mind, evidencing that the unlawful condition had no impact upon his decision in the circumstances the court then will ignore the constitutional violation.

My thesis is that the right to due process of law is so compelling in our jurisprudence and so essential in our society that we must not suggest that it may be burdened. The right to due process is burdened, however, by a rule to the effect that when the right is chilled by State action this unlawful conduct will be ignored if it had no impact in fact upon the citizen. Without the right of due process the other constitutional rights and privileges of our citizens, and indeed the rule of law, become illusory. The right to due process is the cornerstone of our other rights and liberties, and it must not be undercut. All the other provisions of our constitutions assuring rights to citizens are of no avail if the right to due process can be circumvented or successfully inhibited.

I, therefore, would set aside the agency action in this case on the ground that it is unlawful because it was taken contrary to Edward M. Atchison’s constitutional right to due process of law. The potential chilling effect of the unlawful condition justifies that result for me without regard to its actual effect. The only remaining task should be that of fashioning the appropriate remedy.

1 . Art. 1, § 6 of the Constitution of the State of Wyoming provides:

“No person shall be deprived of life, liberty or property without due process of law.” This provision of the Constitution of the State of Wyoming well may be regarded as implementing the language of the Fourteenth Amendment to the Constitution of the United States of America, which in pertinent part provides as follows:

“ * * * nor shall any State deprive any person of life, liberty, or property, without due process of law; * *