Broadrick v. Oklahoma

PETITIONER:Broadrick
RESPONDENT:Oklahoma
LOCATION:Allegheny County District Court

DOCKET NO.: 71-1639
DECIDED BY: Burger Court (1972-1975)
LOWER COURT:

CITATION: 413 US 601 (1973)
ARGUED: Mar 26, 1973
DECIDED: Jun 25, 1973

ADVOCATES:
John C. Buckingham – for appellants
Mike D. Martin
Michael Dennis Martin – for appellees

Facts of the case

Question

Audio Transcription for Oral Argument – March 26, 1973 in Broadrick v. Oklahoma

Warren E. Burger:

We’ll hear arguments next in 71-1639, Broadrick against Oklahoma.

Mr. Buckingham, you may proceed whenever you are ready.

John C. Buckingham:

Mr. Chief Justice, and may it please the Court.

This case is on appeal from a three-judge Federal Court decision, denying appellants’ civil class action for injunctive relief to enjoin the deprivation of the civil rights of the appellants and all classified employees in the State of Oklahoma.

The appellees with State Personnel Board, initiated proceedings against the appellants seeking to dismiss said appellants from employment by the State Corporation Commission for alleged political activities under Title 74 going to statute — Section 818.

This action by the State Personnel Board precipitated the filing of the suit in Federal Court.

The questions presented on this appeal maybe briefly stated as follows.

May a state by statute proscribe in broad and general terms First Amendment rights of state employees and two, may a state constitutionally classify the employees of some, but not all of the state agencies and broadly prohibit the employees of those agencies from enjoying First Amendment rights while permitting the unclassified employees of the state, all other public employees and the citizenry at large to freely enjoy the same.

Now we urge to this honorable Court, that such proscriptions by a state statute are wanting in constitutional acceptability are of the First, Fifth and Fourteenth Amendments to the Constitution.

If the political activities prohibition provisions of the Hatch Act in the previous case are found to be subject to successful challenges as being vague and overbroad, a fortiori the political activities prohibition provision of the Oklahoma Merit Act should be determined as constitutionally warranted.

If however, the political activities prohibition provisions of the Hatch Act are found to be constitutionally sound, it does not necessarily follow that the political activities or proscriptions of the Oklahoma Merit Act are constitutionally well found as said proscriptions are inherently distinguishable from the pertinent portions of Federal Hatch Act.

Harry A. Blackmun:

Which would you regard as the more lenient to the two acts?

John C. Buckingham:

I would suggest the Hatch Act is more lenient.

Harry A. Blackmun:

Let me ask you another question while I have you interrupted is the reverse.

When this action was begun, were there not state disciplinary proceedings pending?

John C. Buckingham:

There were, sir.

Harry A. Blackmun:

Could one man say that the Federal Court should have abstained?

John C. Buckingham:

No, sir.

We feel in this particular instance because facially the statutes involved which predicated the action against the state employees are both so vague and broad as to permit the Federal Courts under 1983, because the civil rights in question involved to rules specifically on that statute.

Abstention to make all additional employees who may have conducted, the State Personnel Board feel should warrant some kind of action, prosecutory action under these two Sections we feel it is untenable when you read the two statutes.

William H. Rehnquist:

Well, but then Younger against Harris involved a claim of over facial, over-breadth too, didn’t it?

Isn’t really the only distinction between that and this and that this is civil and that was criminal?

John C. Buckingham:

No, sir.

We feel in our particular case, in this particular statute, as you know in the Hatch Act and further acts, there are some proscribed permitted activities, political activities perhaps non partisan activities.

The Oklahoma statute does not describe any permitted political activities of any kind other than a private expression and the right to vote with the use of such terms as —

William J. Brennan, Jr.:

You may not take but the disciplinary proceedings that were pending, whether they are administrative proceedings?

John C. Buckingham:

No, sir.

They are administrative proceedings insofar as the determination under the Oklahoma Merit Act, that if the charges are valid then they will be discharged from their jobs.

In addition, under the particular act, if they are discharged, criminal actions in the nature of misdemeanor can also be brought against them.

William J. Brennan, Jr.:

Well, what I am not clear about is, what proceedings were pending when this action was brought?

John C. Buckingham:

The proceedings that were pending were an action by the State Personnel Board and in effect have the Corporation Commission show cause why these employees and these employees should not be dismissed from their jobs.

William J. Brennan, Jr.:

Brought where?

John C. Buckingham:

By State Personnel Board, before the State Personnel Board.

William J. Brennan, Jr.:

That is what I say.

It was pending then before an agency?

John C. Buckingham:

That is right.

William J. Brennan, Jr.:

There was no court proceeding pending?

John C. Buckingham:

That is correct, sir.

William J. Brennan, Jr.:

So I gather that if this is 1983 suit, your thought would be that there is no requirement in actions under that Section, to exhaust administrative remedies?

John C. Buckingham:

That is correct, sir.

Byron R. White:

What is the basis for this?

John C. Buckingham:

Sir because —

Byron R. White:

I thought it was normally adapted and exhausted at administrative level?

John C. Buckingham:

Well, sir.

In this particular instance, we feel that under the – well, this question was not the one that an issue raised in this particular case, It was agreed by —

Byron R. White:

Is that jurisdictional matter?

John C. Buckingham:

No sir.

This is not a jurisdictional —

Byron R. White:

So you do not think — you think if it had a defect to disregard or it’s somehow there — it just isn’t here —

John C. Buckingham:

It is not before the Court in this case, yes sir.

If it was, it was agreed to that at the — that question as to whether or not 1983 was appropriate was not raised in the District Court.

The case is up here on the question involved in the curtail of the First Amendment.

Byron R. White:

Now, this came from the Federal Court, didn’t it?

John C. Buckingham:

Yes, sir, it did.

Byron R. White:

And we could notice that it was plainary?

John C. Buckingham:

I would assume —

William J. Brennan, Jr.:

But you brought it under 1983, didn’t you?

John C. Buckingham:

Pardon.

William J. Brennan, Jr.:

Was that your jurisdictional ground in 1983?

John C. Buckingham:

Yes, sir.

John C. Buckingham:

That’s correct.

William J. Brennan, Jr.:

Well, haven’t we in many cases held that in actions under 1983, there is no requirement to exhaust the administrative remedies?

John C. Buckingham:

Yes, sir.

You have.

William J. Brennan, Jr.:

Alright, isn’t that your answer?

John C. Buckingham:

Yes, sir, it is.

Byron R. White:

Do you know of any case that the administrative proceeding like this was disregarded?

You know of any decision of this Court?

John C. Buckingham:

No, sir.

We have not — I think insofar as the State Personnel Board is concerned.

If you are talking about Oklahoma, Mr. Justice I think this maybe the first case that the State Personnel Board has brought under the so-called political prohibition sections.

Harry A. Blackmun:

You never had an authoritative decision from your State Court?

John C. Buckingham:

Sir, we have had two decisions involving Oklahoma Merit Act and these simply were questions raised as of the validity of Merit Act and essentially whether or not they could delegate certain rule making functions to the State Personnel Board.

But insofar as the question of First Amendment rights and the particular Section 818 which is before this Court, there have not been any substantive rules.

Harry A. Blackmun:

Mr. Buckingham, are you challenging the Oklahoma statute on the ground of vagueness?

John C. Buckingham:

And over-breadth, both sir.

Harry A. Blackmun:

I read your questions presented both in the jurisdictional statement and in your brief, and I do not find any mention of the word vagueness anywhere.

Your opposition argues it and I wondered whether you had conceded that the statute was not vague?

John C. Buckingham:

No, sir, we have not, Your Honor.

I thought, that I had used the phrase vagueness and over-breadth, and I specifically direct your attention to, if I may and I think would the Court, if I can read these two short provisions that are involved, the sections that we are actually complained of I think and I can point out the problem.

Some unnumbered Paragraph six states, “no employee in the classified service and no member of the Personnel Board shall directly or indirectly solicit, receive or in any manner the concerned and soliciting or receiving any assessment, subscription or contribution for any political organization, candidacy or other political purpose and no state officer or state employee in an unclassified service shall solicit or receive any such assessment, subscription or contribution from an employee in the classified service.”

Next, unnumbered Paragraph seven, “no employee in a classified service shall be a member of any national state or local committee of a political party or an officer or member of a committee of a partisan political club or a candidate for nomination or election to any paid public office or shall take part in the management or affairs of any political party or in any political campaign except to exercise his right as a citizen, privately to express his opinion and cast his vote.”

I respectfully suggest sir, that you could not hardly get more vague than the use of a phrase “The affairs of a political party.”

Harry A. Blackmun:

That maybe, but I agree with your questions presented, and I find nothing like that in your brief?

Warren E. Burger:

Which of your questions presented perhaps can we can get at more specifically?

Which of the questions presented as you read them, do you think presents that issue?

John C. Buckingham:

Well, I can very honestly state to the Court.

I think that the Court is probably correct that insofar as the not in any word in the brief, in here the brief that I filed or the jurisdictional statement, utilized and specifically pointed out that word of the statute.

I have used generalities in terms of referring to the statutes being over-broad and vague.

The vagueness, I humbly submit to you that by virtue —

William O. Douglas:

But, the third question on page 5 on the jurisdictional statement says, “take part of the management and affairs by the political party.”

John C. Buckingham:

Yes, sir.

Harry A. Blackmun:

But, in any of that, you are not conceding that?

John C. Buckingham:

No, sir.

We feel that it is patently obvious that the political activity proscriptions of the Oklahoma Merit Act impair First Amendment rights of Oklahoma state employees in a classified service.

Warren E. Burger:

Your number three is almost precisely the language of the Hatch Act, is it not or at least its thrust is precisely the same, management or affairs?

John C. Buckingham:

Yes, sir.

That is correct.

Warren E. Burger:

So in that sense, you do not think it is either more broad or less broad than preceding case?

John C. Buckingham:

Well, I would have to agree Your Honor that if it is about same language, it could not be one way or the other.

Potter Stewart:

This language is taken directly from the unnumbered Paragraph seven?

John C. Buckingham:

Yes, sir

Potter Stewart:

It is an exact —

John C. Buckingham:

Yes, sir.

Potter Stewart:

— the same language —

John C. Buckingham:

Yes sir.

William J. Brennan, Jr.:

Well I suppose your state courts might give those words a different reach than where the Federal Court gives the reach of the Federal statute, does it not?

John C. Buckingham:

Yes, sir.

That is a possibility also.

William J. Brennan, Jr.:

So the identity or work something that might do this?

John C. Buckingham:

No, sir.

William H. Rehnquist:

Did the three-judge District Court before whom your case went in Oklahoma have to construe the statute in order to reach the determination that it did? It is hard to tell from their opinion I think?

John C. Buckingham:

Yes, sir.

Insofar as the construction is concerned, the jurisdictional statement has attached the opinion of the three-judge Federal Court and I cannot go beyond what they state there as to what they did as far as construing it.

Additionally, it is obvious that the political activity’s proscription of the Oklahoma Merit Act affecting only those state employees who are in the classified services repugnant to the Equal Protection Clause of the Fourteenth Amendment of the Constitution.

In this regard, we would like to request respectfully that the Court direct its attention to page 29 of the answer brief, of the Attorney General, which seems to suggest that the difference between classified and unclassified employees coincides with the classification of ministerial and policy forming officers.

In other words, it seems to indicate the Attorney General feels that the policy forming officers are generally unclassified.

Then, if you go to the Merit Act involved which sets forth the unclassified employees, I respectfully submit that these are some of the unclassified employees.

Sub-section eight, patient and inmate health in the state charitable, penal, mental, and correctional institutions.

Sub paragraph 13, temporary seasonal foreign labors or other foreign help engaged in single phrase of agriculture production or harvesting, not to exceed 120 calendar days in any year.

John C. Buckingham:

Sub 15; labor, semi-skilled and skilled craftsman, temporarily engaged for purposes of building, renovation or remodeling and paid on an hourly or piece work basis provided the request is made by the appointing authority and is approved by the State Personnel Board.

Warren E. Burger:

Well, doesn’t that mean that the impact of this is as reading the statute as that the people on the very top and the people on the very bottom are not covered for totally different reasons?

John C. Buckingham:

No sir, I have read it a little different insofar as unclassified —

Warren E. Burger:

But you wouldn’t exclude the part-time farm laborer for policy reasons which is kind of —

John C. Buckingham:

I would have to agree.

I can see that that is a policy making determination.

Warren E. Burger:

But, you might want to cover the man who is head of the Agriculture Department as a policy maker?

John C. Buckingham:

Yes, sir.

Warren E. Burger:

The question is whether they have done that as precisely as they should?

John C. Buckingham:

Well, under the act, there are certain designated agencies which are designated as classified, certain employees are classified, then the governor may select certain classified employees.

But, I think as we note in the jurisdictional statement and seeing the section on unclassified employees, there are some 22 different, various exemptions under the statute for unclassified employees.

Now it’s hard for us to conceive how a secretary working at the Corporation Commission as a typist wearing a political button, endorsing a candidate, how this is relevant to some governmental purpose where she should be deprived the Bill of Rights to wear this button, as opposed to a secretary in the Attorney General’s office.

William H. Rehnquist:

Does the term classified in your statute connote job tenure of some sort?

John C. Buckingham:

Well, I would assume sir that classified would connote some kind of tenure insofar as connection with the Oklahoma Merit Act, some kind of a repugnance in that regard, sir.

William H. Rehnquist:

And so what the legislature has basically done it is saying that employees who have that kind of tenure are barred from this type of political activities and employees who do not have that kind of tenure, aren’t barred.

John C. Buckingham:

That would be a rationale.

Harry A. Blackmun:

Incidentally your named plaintiffs were employees of the Corporation Commission?

John C. Buckingham:

That is correct, sir.

Harry A. Blackmun:

Is this a partisan office in Oklahoma?

John C. Buckingham:

No, sir.

It is an elected office.

There are three different commissioners, there is the State Corporation commissioner.

Each elected every two years and they have a race just like any other race, there nominations, Democrats and Republicans or other parties and it usually draws members and amount of candidates, and then a party, a person is elected to that office.

Harry A. Blackmun:

Then it is a partisan?

John C. Buckingham:

Yes, it is a part of the Commissioner’s — yes.

If you say partisan in reference to that they are a Democrat or a Republican, I can’t think we are talking an independent as then elected as such a non-party member.

Harry A. Blackmun:

They run on their party labels?

John C. Buckingham:

Well, it is an open race, sir.

Independents can run and Democrats and, Republicans can have primary.

Potter Stewart:

Say, what a four-year term or six-year term?

John C. Buckingham:

Six-year term, sir.

Potter Stewart:

Six-year term.

What is the salary in the office, do you know?

John C. Buckingham:

$19,500

Potter Stewart:

$19,500?

John C. Buckingham:

Yes sir, Chairman.

Potter Stewart:

For the chairman, $19,000, for the members it’s — and what are the functions of the Commission?

John C. Buckingham:

The Corporation races off as rather broad and extensive functions, generally regulating public utilities as such and next regulating versatile companies and what we refer to as the area of oil and gas conservation and related matters, transportation.

Potter Stewart:

So it has some of the same functions as the Railroad Commission does?

John C. Buckingham:

Yes, sir.

They are very similar.

Lewis F. Powell, Jr.:

Mr. Buckingham?

John C. Buckingham:

Yes sir.

Lewis F. Powell, Jr.:

I think I understood you to say that you would consider the Oklahoma Act more restrictive than the Federal Act?

John C. Buckingham:

Yes sir.

Lewis F. Powell, Jr.:

Did you say to the court the word privately is in the Oklahoma Act and –?

John C. Buckingham:

No, sir.

If I did, I am sorry if I mislead the Court.

Lewis F. Powell, Jr.:

Well, I am not sure.

John C. Buckingham:

The Hatch Act does recognize certain political activity which they recognize that employees could engage in.

In other words, there isn’t affirmative provisions in the Hatch Act if it is non-partisan political activities.

There is no such language in the Oklahoma statute.

There is no recognition of any kind of activity, political activity that you can engage in other than if you would consider the right to vote, and to privately hold an opinion, as being a political activity that you engage in.

In this respect, we’re saying that the Oklahoma is more restrictive.

Lewis F. Powell, Jr.:

(Inaudible) Judge of court in paragraph nine, conclusions of law, there is an interpretation of your act to the effect that it does not restrict public and private expressions on public affairs and personalities, so long as employee does not channel his activity to a party’s success.

Assuming for the moment that it could not have authority to interpret Oklahoma law, would you accept that final interpretation?

John C. Buckingham:

No sir.

I think recently the Attorney General who is in this case actually referring not for its party success, there was a candidate involved in the city election, which was non-partisan, where an activity was taken part as I understand by a Corporation Commission employee and charges were filed, being violative of the political prohibition section of the Oklahoma Merit Act.

That seems to negate that determination in the Federal Court’s finding number nine.

At least, the State Personnel Board did not feel that, that would be a prohibition against them bringing charges against an employee perhaps indicated a preference for a candidate that was running for a city office, not on a partisan political basis.

John C. Buckingham:

The Attorney General throughout his brief and first that the object and/or aim of the Oklahoma Merit Act were directed at the evils of partisan politics, equating part and partisan politics with evil.

Now, the appellants in this case strongly dissent to that type of a conclusion.

The evils the act were directed against were the coercion, intimidation and misuse of authority which might exploit the employees by governmental superiors.

We respectfully suggest the act was not directed against the voluntary participation and partisan political activity by a classified state employee.

In this regard, we point out that the purposed clause of the Merit Act simply sets forth what you would expect a purpose clause to provide all citizens a fair and equal opportunity for public service, to establish conditions and service which will attract officers and employees of character and ability.

Warren E. Burger:

Will isn’t that other factors a legislature takes into account that is that they do not want to put a premium on having a man enlarge his staff for any particular departments in order to have that many more people to work on political activities?

John C. Buckingham:

Well, I have to agree —

Warren E. Burger:

I mean, that is a legitimate factor?

John C. Buckingham:

Yes, sir.

I have to agree with you, yes sir.

That will certainly and undoubtedly has been in mind of many legislators insofar as enacting provisions.

But, what we are saying in this case very simply is that there is a suggestion for what can you do to striking this particular provision, political prohibition provisions.

That is a rather drastic step.

Isn’t there an easier way?

Wouldn’t it be difficult to drop the statute?

I suggest to you that it would be difficult to draft the statute but you could have drafted a statute where you positively set forth what particular political activities could be enjoyed by all employees as opposed to proscribing in “Blanket prohibitions” those acts which they cannot do.

This seems as a possibility as an answer.

I suggest that it appears to me with the vast number of state employees that we have throughout both in Oklahoma and throughout the country.

That they ought to be given the opportunity to voluntarily exercise political expression.

I think, this is without a doubt a foundation of our system of government.

Warren E. Burger:

And you do seem to place some emphasis and I am not sure in what respect on people wearing a button and saying I am for this man or that man.

Now do you think that is a First Amendment right which the legislature cannot prohibit?

John C. Buckingham:

I think the putting on a button is an expression of political opinion.

I would say that, that’s more closely connote a private expression of political opinion as opposed to being an act that should be curtailed. The State Personnel Board has enacted a particular provision interpreting the political prohibition section of the Oklahoma Merit Act, where they say that is partisan political activity.

Bumper stickers are also political activities.

Warren E. Burger:

Then, let us just take that in the office now, wearing a button, “I am for Governor Jones’ reelection or what not” or, “I am for the other man.”

Do you say a legislature is constitutionally barred from saying that, that kind of display during working hours in the office has a tendency to provoke disputes and arguments and evasiveness and disputation among the employees to the disparagement of their work and their duties.

You say the legislature cannot do that?

John C. Buckingham:

Sir, if they can show that there is a compelling need to do that, if there is some legitimate —

Warren E. Burger:

Now I have stated all the need, now do you say that need as I have outlined it, is not a legitimate state interest?

John C. Buckingham:

Well, I think it possibly could be under your hypothetical where you said during office hours, but you see the prohibition is included in the Oklahoma statute are not restricted to during office hours.

Warren E. Burger:

Well, they might be construed that way by the state courts in a particular case, might they not?

John C. Buckingham:

Well, they haven’t been construed by the only other — which is the State Personnel Board and which is adapted rules, they have not put such a restriction in there.

Warren E. Burger:

But you concede that it would be a valid exercise of judicial power for the courts of Oklahoma to say that’s valid as a limitation during office hours and in the building where you work, but it is invalid outside of office hours and outside of the building?

John C. Buckingham:

If they determine that there was actually something that pervasive about it, Your Honor —

Warren E. Burger:

But I thought you conceded that during office hours, this would be divisive?

John C. Buckingham:

I assumed Your Honor correctly or incorrectly that taking your presumption with that determination that it was divisive.

No, I personally do not find that, that is divisive.

Warren E. Burger:

Well then — but do you think, independent of your view of it, do you think a legislature is constitutionally barred from thinking that it is divisive and legislating on that assumption?

John C. Buckingham:

My personal opinion insofar as the position of our case is sir that, that is going too far.

I think —

Warren E. Burger:

Even during office hours?

John C. Buckingham:

Even during office hours, I think the fact that you have a car sitting out in your parking lot with a bumper sticker on it that “I am for x” and you will say well that car is sticking out in that parking lot with that bumper sticker on it, that is so divisive that we’re going to prohibit that.

I think the extension of the curtailment of that activity is going too far.

Warren E. Burger:

Do you think the Federal Court has the power, has the duty constitutionally to say that the legislature of Oklahoma cannot think otherwise?

John C. Buckingham:

No sir, I think the Federal Court has a duty of looking what the state legislatures are trying to accomplish and at the same time, weighing those rights against the First Amendment rights which this Court has so zealously protected and saying there are going to be times, and there are going to be situations where we should establish guidelines of what should be permissible and should not be permissible insofar as the impairment of those rights, and that is where I think we are here at this time.

In conclusion, appellants pray this Court, reverse the judgment of the trial court with instructions to enter an order and enjoining appellees from preceding further in a dismissal action against the named appellants.

Warren E. Burger:

Very well.

Mr. Martin?

Mike D. Martin:

Chief Justice, may it please the Court.

In 1947, this Court upheld in Mitchell case and a companion case, Oklahoma versus Civil Service Commission, you have applied the Federal Hatch Act prohibitions to state employees that are federally funded.

The Oklahoma legislature 1959 in enacting the Oklahoma Merit System Act, the Personnel Administration, Incorporated in that act, political activity prohibitions against classified employees of the Merit System.

This Act is modeled after the Federal Hatch Act.

In fact, the Act provides in one of the sections that the State Personnel Board is required and directed to alter any rules or regulations it has, the conflict with standards or conditions of Federal grants recognizing that the federally funded employees that work for the state are subject to the prohibitions of the Federal Hatch Act.

There are some differences between the Federal Hatch Act, and our state political activity prohibitions.

Basically, it’s a matter of degree.

I believe that the state took the prophylactic approach that was upheld in Mitchell as a method for proscribing political activity on behalf of state employees.

In doing so, they did not incorporate by reference any case decisions, as there were none in Oklahoma.

They did, however, provide that the Personnel Board could by rule enact rules and regulations to carry out the effect and purposes of the Act.

The State Personnel Board has done so, and they continue to enact rules and regulations regarding not only the entire Merit System, but the political activity prohibitions.

Mike D. Martin:

In addition, the language, the facial language of Section 818 has some differences which are not contained in the current Federal Hatch Act.

There are references to privately expressing his opinion and casting his vote which I believe has been raised by my brother counselor.

We would urge that —

Thurgood Marshall:

I have great difficulty with this private expression.

How do you do that?

You pay yourself?

Mike D. Martin:

Well, Your Honor, I might first state that this prohibition is related only to an employee who is taking part in the management or affairs of a political party or political campaign, but it is not restricted to his voicing his opinion on matters of public personalities or affairs.

Thurgood Marshall:

The only explanation I am asking for is my private expression of my opinion, what does that mean?

Mike D. Martin:

This is not defined in the Act.

There have been no —

Thurgood Marshall:

What do you think it means?

Mike D. Martin:

What do I think it means?

That is a good question, Your Honor.

I could not answer that.[Laughter]

Warren E. Burger:

Doesn’t it mean that if he is at a party with his friends at home, he can express it and if he is out on a platform, he can’t.

What’s so difficult about that?

Mike D. Martin:

Well, I think it is a matter of degree, because you can —

Warren E. Burger:

Well, isn’t that a matter of degree?

Mike D. Martin:

Yes, that is Your Honor, but I do not believe that —

Thurgood Marshall:

Well, it depends on the size of the party, wouldn’t it?

Mike D. Martin:

This is true Mr. Justice.

This is my point.

You can certainly have a fact situation where it would be a private expression, but you can certainly find one where it would be a borderline case.

Potter Stewart:

This legislation was enacted in 1959, was it?

Mike D. Martin:

Yes.

Potter Stewart:

And before that time, was there any similar legislation in your state?

Mike D. Martin:

No, there was none.

Potter Stewart:

And this legislation came along at the same time as the creation of a classified service came along?

Mike D. Martin:

Yes, it did.

Potter Stewart:

Prior to that time, had there been any category of public employment in your state that was equivalent to Federal Civil Service?

Mike D. Martin:

No.

Potter Stewart:

Non-political?

Mike D. Martin:

No, there was none.

Potter Stewart:

So, it all came along together in 1959?

Mike D. Martin:

Yes, it did.

Potter Stewart:

And none of it really has been, that is the meaning of these two paragraphs we have before us here, it has never been the subject of construction and interpretation by the courts of the state, have they?

Mike D. Martin:

No, the only authority of interpretation that has been made, has been made in regard to Attorney General’s opinion that has been issued over the years and there have been a number of those.

Potter Stewart:

Has he ever purported to explain what was meant by private expression of opinion?

Mike D. Martin:

No, that question has not been asked.

I might add that the state Attorney General’s opinions have force and effect of law until overturned by Court of competent jurisdiction, and state employees, and state agencies are required to adhere to those opinions.

Potter Stewart:

Who can request for Attorney General’s opinion?

Mike D. Martin:

Attorney General’s opinion can be requested by statute, can be requested by state legislature, an agency head, it cannot be requested by a private citizen, no.

Potter Stewart:

The agency had the legislature as a whole or any legislature?

Mike D. Martin:

Member, any member of legislature.

William H. Rehnquist:

Is there any practice in your state as there was in Arizona where I came from, where a private citizen wanted an Attorney General’s opinion, he would ask his legislator who would in turn ask the Attorney General?

Mike D. Martin:

This is done quite often.

I think what the issue is —

Byron R. White:

Can you tell what that — really cares what that means, at least nobody has, is that it?

Mike D. Martin:

No one has asked.

We cannot on our own issue Attorney General’s opinions.

We have to be asked questions and this question has not been asked.

William J. Brennan, Jr.:

I gather what you said earlier, you are not unhappy it hasn’t been asked?

Mike D. Martin:

Well, I would hate to have to write it, Your Honor.[Laughter]

William J. Brennan, Jr.:

But you are — you don’t object to the (Inaudible)

Mike D. Martin:

No, I do not object.

Byron R. White:

You think (Inaudible) that’s a reasonable construction of the act?

Mike D. Martin:

Yes, I do.

William O. Douglas:

Has the Oklahoma Court ever decided it?

Mike D. Martin:

No, the Oklahoma Court has never construed either these two paragraphs.

I believe what we have before the bench today is the issue of the prophylactic approach adapted by these political activity prohibitions as set forth in Mitchell.

Mike D. Martin:

The alternatives to setting up the prohibitions in terms of a vagueness test would amount to setting out all types of conduct that could possibly be prohibited, a task which would seemingly be impossible.

The prophylactic approach of Mitchell is the current approach that the state has used and has currently adopted.

Another approach would be perhaps to narrow the language of the statute and set out specific prohibitions that would not be as broad and prophylactic.

Byron R. White:

Is the record clear as to what (Inaudible)

Mike D. Martin:

Yes, it is, Justice.

In the original record, contains charges by letter, served by letter to each individual specifying with particularity what conducts he was accused of violating in terms of political activity statute.

Each individual was charged alternatively with soliciting campaign funds, receiving campaign funds, attempting to secure other classified employees to work in the campaign, and I believe there is one charge of hauling campaign materials.

Potter Stewart:

That was for the reelection of an incumbent Commissioner, (Inaudible) Jones?

Mike D. Martin:

Yes, it was, Justice.

Potter Stewart:

Was he elected?

Mike D. Martin:

Yes, he was.

I might add that the question of exhaustion of administrative remedies that the Personnel Board issued a stay of their proceedings pending a determination of the constitutionality of these prohibitions in the Federal Courts.

They were —

William J. Brennan, Jr.:

Could there be a state court proceeding under that stay?

Mike D. Martin:

Well, the state was issued after a complaint had been filed in Federal Court.

William J. Brennan, Jr.:

Does Oklahoma have declaratory judgment proceeding?

Mike D. Martin:

Yes, they did Your Honor.

William J. Brennan, Jr.:

Well, would there be anyway any of these effected people could go to the Oklahoma Courts without having first to go through all of the administrative proceedings?

Mike D. Martin:

I believe it is possible that they could have gone into Federal Court.

William J. Brennan, Jr.:

No, the state courts?

Mike D. Martin:

State court, and challenge the validity of the statute.

William J. Brennan, Jr.:

Without waiting the outcome of the administrative proceedings?

Mike D. Martin:

I think the Personnel Board would have issued a stay in that situation also —

Byron R. White:

Well, was there — in the administrative proceedings that were pending, was there a provision for an answer from the party where the issue is made up?

Mike D. Martin:

At the time the —

Byron R. White:

Were there questions of coverage or violation that were going to be involved or –?

Mike D. Martin:

Well, there were specific charges that were made.

At the time stay was granted, there were a number of motions pending before the board in relation to those charged by the attorneys representing them.

We have not progressed to the point of having a hearing, we have been started — and having a hearing.

We were still in the discovery stage.

Mike D. Martin:

One of the complaints filed in Federal District Court.

Byron R. White:

The disposition by the Commission, is that then immediately subject to judicial reviews or some administrative appeal?

Mike D. Martin:

In regard to the administrative hearing, there is a 10 day provision for a request for rehearing and the party found has 30 days in which to appeal to state court on the record.

Byron R. White:

Has something that he is suspended or does the Court have power to stay a suspension or does the law say nothing of what happened until it completed the —

Mike D. Martin:

Also board and the Court has the power to stay any order of the agency.

Byron R. White:

And what does he do, going to an Oklahoma trial court and to an Oklahoma appellate court?

Mike D. Martin:

He goes into an Oklahoma trial court.

Byron R. White:

And then what, as an intermediate to appellate court before he get to the Supreme Court?

Mike D. Martin:

Yes, sir it is.

Byron R. White:

Is it de novo in the trial court or is it on the record?

Mike D. Martin:

It is on the record.

Byron R. White:

What is the standard of it?

Mike D. Martin:

Substantial evidence.

Warren E. Burger:

Could this Commissioner who benefited by the work presumably of these people have asked the Attorney General for an opinion about these matters?

Is he one of the state officers who has that power?

Mike D. Martin:

Yes, he could have asked for an opinion.

I believe that the vagueness test we have cited out in Grayned versus City of Rockford is controlling in our case, we notice that the state employees have in regard to the prohibitions is given not only by the facial language of the statute itself, but also from rules and regulations set forth by the Personnel Board, circulars that are issued by the Personnel Board to each employee prescribing and setting forth what activities he can be involved in, and what activities he cannot be involved in.

In addition, there are Attorney General’s opinions which as I indicated earlier have force and effect of law and which employees and agencies are required to follow.

These opinions have alternatively down through the years, interpreted the prohibitions to be prohibitions against partisan activity.

The standards which the Personnel Board has to enforce this political activity prohibition is sufficient to meet the test and grant it.

They themselves has set forth rules, and they also guide themselves by the Federal Hatch Act prohibitions through the Oklahoma versus Civil Service Commission case and a provision in the statute itself which requires them to alter the rules and regulations which conflict with those standards that apply to Federal grants.

So they themselves adhere to standards which they set themselves and which are set through the Federal Hatch Act.

The employees themselves have access to advisory opinions from the Personnel Board which is indicated to them in a circular that is distributed.

They have access to the rules and regulations of the Board which further define the prohibition set out in the statute, and under certain conditions they can ask for Attorney General’s opinion if they get someone to ask who has authority to.

The broadness test, over-breadth test that supplied to this case particular in relation to the language of the statute itself.

Appellants contend that it prohibits constitutionally protected speech as well as non-protected.

The three-judge panel correctly held that the prohibitions were against partisan political activity, and were not over-broad while the specific language itself does not with perhaps as certainly as appellants would like, connote that it is only partisan political activity that is prohibited the particular wording of the statute gives that connotation.

In addition, the Attorney General earlier in 1968, in an Attorney General’s opinion that those prohibitions were against partisan political activity only.

The enforcement of those provisions by the Personnel Board and the circulars that they issue to state employees also specify that they are partisan political activity prohibitions.

Potter Stewart:

Well, what does that mean?

Potter Stewart:

We were told earlier that in these election races for the job of Commissioner, sometimes Independents run, and if employees work for that Independent candidate, would that be partisan political activity or would not it?

Mike D. Martin:

Well, I do not really —

Potter Stewart:

It would be on behalf of the party?

Mike D. Martin:

I do not believe we have had an independent run.

Yes, we have, I will take that back.

Potter Stewart:

We were told that some has.

Mike D. Martin:

Yes, in last race.

I think if an Independent is running as an independent and has through his resources a — I would not say party but a organization that espouses his particular beliefs.

Potter Stewart:

At least his candidacy.

Mike D. Martin:

Yes, someone working for that organization would be very similar to working for a party and as they are attempting to espouse to others, the beliefs of that individual through his organization and his platform.

Warren E. Burger:

Suppose it is reasonable to assume that the Democratic candidate and a Republican candidate would consider that partisan political activity since it is aimed against them.

Mike D. Martin:

Yes, I would think so, and I would think that the definition of party politics is broadly that which is aimed at instigating a state government a particular belief or espousing a particular platform, which currently has a two-party system but there are independents, and other parties, actually American party which — are parties because they espouse a particular belief or attempt to set forth particular policies in state government which are unique onto themselves.

So I think in that regard, it would be a prohibition against someone working for an independent candidate via such an organization.

William J. Brennan, Jr.:

In general ruling in your state, are those published and are they available?

Mike D. Martin:

Yes, they are.

They are published.

William J. Brennan, Jr.:

It is not cited in your brief, but I think it is?

Mike D. Martin:

They are published and distributed to all agencies.

Byron R. White:

Are there any Attorney General’s opinion relevant to this case?

Mike D. Martin:

Yes, there are.

There are 68 opinions which interpreted the political activity prohibitions until they were partisan political activities.

There have also been other opinions down through the years.

Byron R. White:

— Well there are citations [Inaudible]

Mike D. Martin:

Other citations?

Byron R. White:

Yes.

Mike D. Martin:

I have a listing of some of the opinions and what they dealt with.

Byron R. White:

Are they in your brief?

Mike D. Martin:

No, they are not, Your Honor.

Warren E. Burger:

Well, are they available in some way?

Mike D. Martin:

Yes, we can make them available and then add them to the record.

Potter Stewart:

Now, they are published, they are not just — ?

Mike D. Martin:

No, they are published.

They are issued to the individual requesting the opinion and also sent to state agencies to distribute, and to inform the employees.

Potter Stewart:

You do not have to know whether they are not there in our library.

Mike D. Martin:

I do not believe we are now putting them in a bound volume but I do not believe in 1968 that they were put any bound volume.

I believe that just occurred several years ago.

They just started six years,excuse me.

Yes, we do have a bound volume I do not know if you have access to it in your library.

Potter Stewart:

Would you with the Chief Justice’s permission make available copies of the Attorney General’s opinions that do bear on the construction of the thought.

Mike D. Martin:

Yes, there are three that are in the record but they are not inclusive of all that were issued.

There are a number of more that were issued.

Now, I will make available as part of the record those opinions.

Of the states, 22,000 employees, approximately 20,000 are under the Merit system as classified employees.

The prohibition specifically apply only to classified employees.

They do apply to unclassified employees to the extent that unclassified employees cannot attempt to solicit funds from classified employees, nor get them involved in partisan politics.

The distinction for the prohibitions are related to the enactment of the Merit system of Personnel administration.

When the Personnel act was put into effect in 1959, these prohibitions were placed in there and applied only to classified employees.

The rationale of the Merit System is to allow the employee to progress in his work free from outside influence including politics.

The decision to exempt certain agencies and employees from the classified system was based primarily on the decision that the populace needs some state individuals to express their will.

In addition, the unclassified employees are not protected by the Merit System are subject to the whims and caprices of their employees so to speak.

They have no recourse in event that they are terminated as to the classified employees.

Not only are specific individuals exempted from the Merit System classification, but agencies as a whole are also exempted.

While the decision of the legislature to allow the populace to express their will to certain individuals was expressed in the act.

They also felt that it was necessary for entire agencies because of the nature of their work to also be exempted, and in this regard, the application of the prohibitions is limitedly applied to them.

We think that this is a valid distinction that under the prophylactic approach of Mitchell, the decision to include some state employees under the prohibitions and exclude others is a judgment that has to be weighed by the state and has experienced over the years of the political activity that they are attempting to prohibit.

The governor in the state of Oklahoma can by executive order place new agencies under the Merit System or existing agencies that are not under the Merit System.

So there is a flexibility as time goes by for the state to continue to combat the evils of partisan politics by placing those unclassified employees and agencies under the prohibitions.

Potter Stewart:

Does the governor has unrestrictive power at anytime to place any or all categories of state employees under the system?

Mike D. Martin:

He has given authority by the Personnel Act to place agencies under the Merit System, and that authority does not exceed the exemptions that are already placed in the statute itself.

There are certain statutory exemptions, but as far as newly created agencies, he has the authority to place them under the Merit System by executive order.

Potter Stewart:

To do so or not to do so.

Mike D. Martin:

Yes.

Byron R. White:

Would you say that the reason for banning political activities by the classified employees is to insulate the employee from political pressure.

Is that the aim of it or –?

Mike D. Martin:

I think that is one of the reasons.

The obvious reason for the enactment of the Merit System is to insulate him from outside influence including politics.

I think, the prohibitions apply only to classified employees.

Byron R. White:

Why apply it to anybody?

Why prohibit political activity by any state employee, what is the purpose of that?

Mike D. Martin:

Well, the state unlike the Federal government did not till 1959 make prohibitions against political activity, and during this long period of years since 1907 since we have become a state, it has been apparent to the legislature that the political activity control of state employees was something which was not good for the state.

Byron R. White:

So it was to insulate the employees from political pressure?

Mike D. Martin:

It was to insulate the employees and to prohibit a party from controlling the state and making its desires and wishes of the state instead of having a neutral state government which was not controlled by a party.

Potter Stewart:

What if an employee becomes a classified employee?

He get certain job protections.

Mike D. Martin:

Yes, it is.

Potter Stewart:

And what are they?

Mike D. Martin:

In a retirement system, he is not subject to dismissal except for cause that is under a statute.

They dismiss, he has a hearing for the Personnel Board and there are specific prohibitions against using influence against him either discriminatory or favorable to effect his promotion or his non-promotion.

So there are basic —

Potter Stewart:

So again to be basically tenure, and can be discharged only for cause if he has to participate in a retirement system that is on the other employees who are employees at will I guess.

Mike D. Martin:

Well, the employees will — non-classified employees also had access to retirement system, but they have no tenure in terms of their dismissal.

Potter Stewart:

Or job security.

Mike D. Martin:

Yes, sir.

Potter Stewart:

Kicking an employee, say I am sorry, I do not want to be a classified employee.

He has no choice, the individual employee.

Mike D. Martin:

He has a choice in terms of where he applies to work.

Potter Stewart:

Yes, but only that.

Mike D. Martin:

Yes.

Lewis F. Powell, Jr.:

Mr. Martin, I understand it is agreed that the Personnel Board has the authority to promulgate regulations.

Mike D. Martin:

Yes, I do.

Lewis F. Powell, Jr.:

In the Appendix, you have as I read it only one regulation, that 1641 that deals with the substance of the issue here today.

Does this mean that council in agreement that no other regulation is relevant to this case?

Mike D. Martin:

No, I do not believe so, Justice.

Specifically, at the three-judge panel level, it was brought out that this constitutional attack included only the statutory language that the rules enacted by the Board were not included in this attack, and on that point since we are dealing with the facial and validation problem, the rules that have been enacted by the Board in regard to this area, were not looked at or included in terms of the record.

Byron R. White:

Are they published and available generally?

Mike D. Martin:

Yes, they are.

There is a publication of the other rules of the Board which are issued to all the agencies and employees.

Byron R. White:

What if rules have evidence to what they actually mean?

Mike D. Martin:

Yes, they are.

Byron R. White:

How can you deal very sensibly with constitutionality without knowing what the act means and they are looking at what, that the evidence of that would be —

Mike D. Martin:

Well, the Personnel Board even though they had the authority to enact rules and regulations to further defining the prohibitions in the Section 818, they have not extensively done so.

The Act has only been in effect 14 years.

Byron R. White:

Well did they — [Inaudible]

Mike D. Martin:

We can make those available to the Court if they desire to look at it.

Warren E. Burger:

That might be useful, will you do that?

Mike D. Martin:

Yes, I will.

Byron R. White:

Well, the three-judge court did not have access to that?

Mike D. Martin:

They had access to the one that was in the record, but they did not have access to all of them since the plaintiffs, appellants here particularly noted that they were not contesting those rules or regulations, just the statute.

The conclusion I would like to point out to the Court that Oklahoma has taken the prophylactic approach of Mitchell and we feel that this is the only classical way of combating the evil that is sought to be prohibited.

An inclusive approach of setting out all the conduct that has to be prohibited by the statute is impossible, a narrowing construction of the statute would not have the effect of combating the evils that are sought to be prohibited.

Now, the prophylactic approach of Mitchell is valid whether it is based upon the rational test, basis test, or the compelling governmental interest test with the least alternative restrictive test, and we feel that the Court should sustain the over court’s holding that set prohibitions are constitutional.

Warren E. Burger:

Mr. Buckingham, I have a question or two if you have the moment on.

I suppose it can be assumed or at least let us assume it anyway, that although there were some employees who assisted this Commissioner under whose general jurisdiction they were, there were these people who helped him get reelected, there may have been others who did not help him get reelected.

That is a reasonable assumption, is not it?

John C. Buckingham:

Yes sir, it is.

Warren E. Burger:

Is it reasonable assumption for the legislature to think that they want to protect employees from being urged by the Commissioner to engage in political activity?

John C. Buckingham:

Very reasonable, Your Honor.

Warren E. Burger:

Perhaps those who are requested and declined might not be so favorite if the Commissioner got reelected?

That is a possibility.

I am not suggesting it is a fact, it is merely a possibility that the legislature might have taken into account.

Warren E. Burger:

Is that right?

John C. Buckingham:

Yes sir.

I will agree with you again.

Warren E. Burger:

So that would tend to sustain the Attorney General’s view that the purposes were prophylactic or to take Mr. Justice White’s term to insulate them from this kind of an influence.

John C. Buckingham:

We do not contest the purpose and the aim and the object.

What we are saying is how was it accomplished, what we are saying in the particular statutes that are involved, they are too broad —

Warren E. Burger:

Well, are you challenging as applied here, the people who solicited money, received campaign contributions, and transported campaign materials?

John C. Buckingham:

What I am saying sir with regard to the statute that is involved is that the jurisdiction of the Court was aimed that the statute itself and so far as it is over-breadth and vague where these are concerned.

Warren E. Burger:

Should anybody who is able to read had any doubt that this statute prohibited the kind of activity involved in this particular case?

John C. Buckingham:

Well, if we are to assume that we are talking about subscriptions and receipt of money there, I would say that you have to agree.

Warren E. Burger:

That is what is involved in this case.

John C. Buckingham:

Yes, and so far as the charges if the court please now, these are charges where we are a long way or insofar as having action on those charges, these are the allegations that they made against the employees.

I do not want the court to feel by virtue as argument in the case that we have not admitted at all that there —

Warren E. Burger:

No, no we are merely talking about allegation, but you concede that these are proper grounds for a state to establish prohibitions, and that if they were found guilty of them, they could properly be disciplined.

John C. Buckingham:

Yes sir.

Most certainly, we think that, that type of conduct is what was obviously aimed at and what we are trying to do with insofar as any kind of proscription of these rights.

But what we are saying is, let us not take all the rights that they have a way with regard to political expression.

A statute could be enacted and could be drafted, we will say from the positive point of view, permitting them to engage in certain partisan political activity on a voluntary basis which would give them an exercise of those rights guaranteed to them under the First Amendment, we are saying.

Under our statute, they have not granted these rights.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.