Cabell v. Chavez-Salido – Oral Argument – November 03, 1981

Media for Cabell v. Chavez-Salido

Audio Transcription for Opinion Announcement – January 12, 1982 in Cabell v. Chavez-Salido


Warren E. Burger:

We will hear argument first in Cabel versus Chavez-Salido.

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

William F. Stewart:

Mr. Chief Justice, and may it please the Court, this case involves the validity of state citizenship requirements for certain specified classes of public employees.

It is an appeal from a decision of a three judge federal court holding that it was unconstitutional for California to require its probation officers to be citizens, and that further, California’s statutory scheme which required peace officers in several enumerated categories to be citizens was unconstitutionally overbroad.

The plaintiffs in this case were all applicants for only one peace officer position, that of deputy probation officer with the County of Los Angeles.

This is the second appeal in the case, the Court having granted the appeal and remanded it back to the three judge court for reconsideration in light of its recently published decision in Foley versus Connelie.

The second time around, the District Court again by a two to one vote held that it was unconstitutional to require citizenship of deputy probation officers, and that the statute was unconstitutionally overbroad.

California’s statutory scheme sets forth many enumerated and specific categories of peace officers, and also sets forth the qualification for peace officers, one of which is citizenship of the United States.

The California statutory scheme also considers and imposes certain training requirements on the enumerated categories of peace officers.

This case calls once again on this Court to consider as it did in Foley and Ambach whether certain occupations, public occupations, in this case probation officers, are of such a nature that they can be constitutionally limited to citizens.

The second issue, of course, is whether or not the California statutory scheme was unconstitutionally overbroad.

We believe that the three judge federal court seriously erred when it concluded that the probation officer’s position was not of a nature that citizenship could legitimately be required.

Mr. Stewart, when you say that the scheme was considered overbroad, I take it you are referring to the Court’s language in Sugarman against Dougall that a narrowly tailored scheme would do.

Do you think that has to do with statutory draftsmanship as to what positions are included and what are not?

Or just rather vague language in the statute itself?

William F. Stewart:

I think that the Sugarman language should be limited to the context of that particular case in the sense that in Sugarman the New York statute struck down encompassed all classes of civil service servants in New York without distinction.

That’s the–

Well, didn’t the Court’s language, our Court, our language focus on the fact that it included garbage collectors?

William F. Stewart:

–That is right, Your Honor.

It was overbroad because it included all categories of civil servants, from garbage collectors to clerk typists to perhaps police officers and the like.

The California statutes are just about as bad as New York, aren’t they?

You cover cemetery sextons and toll takers, and demand citizenship for those as well, don’t you?

William F. Stewart:

Well, we no longer demand citizenship of sextons, Your Honor.

Well, I am glad to hear that.

William F. Stewart:

The California legislature in 1980 took another look at the statute, and there were several categories that were eliminated, of which one category was cemetery sextons, custodial officers, and there were several other categories, but the difference between the California statute and that of New York is that they specifically for one thing, it deals with one generic class, that is, a peace officer.

They all possess certain peace officer characteristics.

Secondly, each of the specific peace officer categories is specifically delineated in separate subsections of the code, so we have one section dealing in our case with probation officer, another dealing with sheriffs and police officers, another one dealing with highway patrol and various other categories.

Well, this case just deals with probation officers.

William F. Stewart:

Precisely, Your Honor.

This case–

Why should this person be entitled to say the statute is invalid because it applies to some other people, too?

William F. Stewart:

–That is exactly our point.

The plaintiffs in this case, all three of them are applicants for only one of the classified statutory positions.

Do you thank Sugarman held that somebody had standing to do that, or only that the overbreadth was evidence of… was relevant to whether and what kind of a justification the state might claim?

If you are claiming a certain justification, it is awful hard to say that justification would apply to just everybody.

William F. Stewart:

That is exactly right.


And if it purports to, it tends to impugn the justification.

Isn’t that what–

William F. Stewart:

–That is the position that we… that is the way we read Sugarman, Your Honor.

–Well, Mr. Stewart, if we were to agree that deputy probation officers as police officers cannot be required constitutionally to be United States citizens, do we have to reach this overbreadth argument at all?

William F. Stewart:

I don’t believe you do, Your Honor.


William F. Stewart:

I think that that question–

Even though it says peace officers, the second question, but since the only three applicants here are deputy probation officers–

William F. Stewart:

–That is right.

I don’t think you need to reach the other argument.

–What if we held that they may be excluded?

William F. Stewart:

May be limited to peace officers.

I think then that–

I mean, suppose we hold that the state may require probation officers to be citizens?

William F. Stewart:

–I think then that the Court need not consider the overbreadth question, because in this particular case the applicants were just for the deputy probation officer position.

Deputy probation officers are specifically declined as a precise class of peace officer in the statute.

It is not a generic term.

And that the other categories, if they are constitutionally defective, should be addressed in a separate suit with parties withstanding, and where the evidence could be developed as to the particular tasks involved in that… in those jobs.

In this case, the trial court, by simply saying that the California statute was unconstitutionally overbroad, without consideration in detail of the sub categories of peace officers, concluded that they were not legitimately restricted to citizens, and completely eliminated the citizenship requirements, some of which, for highway patrolman, police, and sheriff, this Court has already held are legitimate qualifications.

Well, then, Mr. Stewart, that is to suggest that no matter how we come out on Question One, we ought not answer Question Two.

William F. Stewart:

I believe that is the position I take, Your Honor.


Mr. Stewart, you have three persons involved here, don’t you?

One of them is now a probation officer.

William F. Stewart:

I don’t believe so, sir.

He left county service.

I thought the briefs indicated he had acquired his citizenship and was employed.

Am I wrong?

William F. Stewart:

No, I believe the second opinion indicated that he had left county service after he had acquired his citizenship.

He is no longer a probation officer.

But the Court in, I believe it was a footnote in their second opinion, stated that his cause was still right because he still had his claim for back pay and other damages.

What about the other two?

Have they acquired citizenship?

William F. Stewart:

No, they have not, Your Honor.

Nor did they indicate any intention to acquire citizenship.

Just as a matter of information, you do have some peace officers in California authorized to carry arms who need not be citizens?

William F. Stewart:

I do not know whether that is a fact, sir.

This Court in the Sugarman case–

I commend to you then California Penal Code Section 830.7.

William F. Stewart:

–Of course, not all peace officers, Your Honor, are authorized to carry weapons in California.

It is up to their particular–

That, of course, is not what it said.

William F. Stewart:

–It is up to their particular jurisdiction or the employer that allows them to carry weapons.

In Foley and Ambach, this Court in a more precise and narrow context applied its guidance in Sugarman.

In Foley, the Court upheld the citizenship requirement for police officers, and in Ambach for teachers.

The question then is whether or not the job characteristics of a probation officer fall on the Foley-Ambach side, which justifies citizenship.

Measured against the criteria the Court considered in Foley and Ambach, we believe that the deputy probation officer positions clearly perform significant governmental functions that would justify the imposition of a citizenship requirement.

This Court perhaps other than attorneys are most familiar with the functions of a probation officer.

Under California law, in practice, do they give the sentencing judge a pre sentence report?

William F. Stewart:

Yes, they do.

They are required to provide a pre sentence report in all cases.

Do they recommend… are they authorized to recommend revocation of probation?

William F. Stewart:

Yes, they are, Your Honor.

William F. Stewart:

They possess in California, I believe, all of the essential probation officer powers that exist in most states and in the federal government.

In fact, I believe on of the amicus for the Appellees indicated that there is really essentially no difference in the probation officer’s powers in California between those exercised generally and also in the federal government.

So they possess the power to–

Mr. Stewart, what is it about being a non citizen, being an alien, that affects one’s ability to prepare a pre sentence report?

William F. Stewart:

–Well, if you zeroed in on just that one facet of the probation officer’s functions, whether he was a citizen or not may not–

Well, then, what about recommending sentence as opposed to probation?

William F. Stewart:

–I think that is a significant factor, because by making that recommendation, it assumes that the court will take some cognizance of it.

The probation officer is exercising a sovereign power of the government, making a recommendation as to the liberty of an individual, and it forms an extremely important part of our criminal justice process, which is bottomed on the concept of rehabilitation.

But do you think there is something about being a non citizen that means that that person can’t do that job effectively?

William F. Stewart:

Not perhaps in a technical sense, but the same type of qualification would apply to a deputy probation officer as the Court found existed in Foley and in Ambach, particularly in Foley, because the probation officers here are involved closely as an integral part of the criminal justice system.

In a sense, they are almost an arm of the court.

In all of the others, the officer involved deals with the whole public.

Isn’t that true?

William F. Stewart:

Involves the entire public, sir?

The officer can involve himself with anybody in the public, but the probation officer is limited to only probationers.

Isn’t that a difference?

William F. Stewart:

I don’t think it is a difference that is constitutionally significant because the probation officer–

Why not?

William F. Stewart:

–because the probation officer performs activities on behalf of society as a whole.

There are many jobs in government that are significant, that perform significant governmental functions which do not on a daily basis meet all of the public.

I think that is too narrow a concept for determining whether or not the job performs significant governmental functions.

In the case of juveniles, the probation officer’s capacity is much broader in California, because they come into contact with juveniles that may not be offenders, or have not got to the stage where they would be charged with some sort of criminal activity.

But they are only juveniles.

William F. Stewart:

Pardon me, Your Honor?

They are only juveniles.

They wouldn’t come in contact with you or me, would they?

William F. Stewart:

Not unless we were–

As long as we stayed out of trouble.

William F. Stewart:

–That’s right, Your Honor.

So it is different from a state trooper.

William F. Stewart:

It is more narrow in the sense of its contacts than a state trooper.

That is correct.


Is he more narrow in his contacts than, say, teachers?

William F. Stewart:

Yes, in the sense that the teacher would address a class or be associated with a class on a day to day basis, whereas a probation officer is directed primarily toward juveniles as a group or adult offenders.

But teachers are addressed primarily to juveniles as groups, too, are they not?

William F. Stewart:

That’s correct.

They do not relate in a broad sense to adults.

They focus primarily on the juveniles and those that are in their class.

But in both instances the probation officer performs a function representing the state on behalf of society as a whole, in attempting to establish rehabilitation, establish guidance for juveniles as well as adults, and I think that this particular function or facet of this position relates very closely to the significant governmental powers that this Court felt were important in determining whether or not citizenship could validly be required.

Mr. Stewart, is there anything in the record to indicate how many probationers in Los Angeles each probation officer is responsible for?

William F. Stewart:

I believe it varies, Your Honor.

There is nothing in the record, but there were some remarks made by one of the amicuses as to the work load, but I believe their case load now is somewhere around 100 offenders.

Why did the amicus think that was relevant to any of the issues in this case?

William F. Stewart:

They apparently felt because their work load was such that they were mere functionaries, and used that statistic to try to buttress their argument.

That is the only relevance that at least was expressed in their brief.

Do you think that is relevant?

William F. Stewart:

No, I don’t, Your Honor.

Mr. Stewart, would you outline the duties of a probation officer with respect to juveniles?

William F. Stewart:


The duties of a probation officer with respect to juveniles can be divided into perhaps two categories, those which could be considered delinquents and those that could be considered to be abandoned, neglected, or abused children in California.

As far as delinquents are concerned, they have jurisdiction to determine whether or not to take a juvenile into custody because of some offense, whether or not to divert him into the criminal justice system or to release him back to his parents or to some informal method of treating the individual.

They can determine whether or not charges should be filed against a juvenile.

The juvenile can be remanded to the custody of the deputy probation officer at the determination of the juvenile judge and put under a program of corrective behavior and restrictions somewhat similar to conditions of parole.

The probation officers in Los Angeles County run juvenile camps, have sole jurisdiction over approximately nine or ten juvenile camps in Los Angeles County.

With regard to the non delinquent children, their powers are very extensive.

They act as sort of a parens patriae concept.

They can come in and seek to remove the child from the custody of its parents because of abuse or neglect.

Once again, the court can remand the juvenile back into the custody of the probation officer to be put under a program or put into his protective custody and moved into a foster home, or under one of the juvenile halls, not the juvenile hall in the delinquent sense, but we have a juvenile hall that has children that have been abandonded or neglected, and they were under the jurisdiction of the probation department up until just a couple of years ago, but in other counties they are still under the control of the probation department.

Isn’t that all under the supervision of the social worker?

William F. Stewart:

The only… only the abandoned, neglected, and abused child does the social worker have a role, Your Honor.

You mean the probation officer can move the child from one status to another on his own?

William F. Stewart:

I was referring to a delinquent child.

Where the child is adjudged to be a delinquent, under a separate section of our code, the social worker does not have any role in that.

It is only in the abandoned, abused, and neglected category that the social worker has a role, and generally it depends on the county that you are in.

In Los Angeles County, the probation… the welfare department is quite extensive, and they do play a substantial role in the placing of the child into foster homes and the like.

Mr. Stewart, does the record tell us anything about the offender population in the county?

I assume there must be some significant number of non citizens, Spanish-speaking non citizens who may be offenders in Los Angeles County.

William F. Stewart:

There is nothing in the record indicating the offender record or what their alien background is.

Does the argument about the citizenship requirement as to most people necessarily apply with the same force if the probation officer’s people with whom he deals, 100 or so offenders, if they are all non citizens, Spanish-speaking, and so forth?

What is the relevance there for insisting that you not have, say, a non citizen who might be more like the people he is responsible for?

William F. Stewart:

Well, the individual, whether he is an alien or not, is still under the jurisdiction of our system of criminal laws and our constitutional protection, so it is not similar to a situation where a probation officer may be acting outside of the country.

The probation officer is representing the court and our criminal justice system.

And secondly, as far as relating, I don’t think that there is a substantial difference between whether he is alien or non alien in terms of relating to a particular offender.

If it is a question of language, then we have the special category of Spanish-speaking probation officers in Los Angeles County that have preference in hiring, as a matter of fact.

They are citizens, but it was… they were designed to address the problem and perhaps some problems in language communication, but I do not feel that a non alien probation officer would relate any better to a non alien offender.

Well, I just was wondering what in that particular category, what is it… does the citizenship requirement in that category perform a useful function?

I suppose it narrows the class of Spanish-speaking persons that are eligible for employment, and is that… One reason I ask the question is that a year or two ago we had a case involving correction officers called Minick, in which the state had an affirmative policy of trying to get different minority groups because they might be able to relate better with the offenders for whom they were responsible.

Here you have kind of a different approach to the problem.

William F. Stewart:

Well, we believe we can do it, but it doesn’t require that he be a… or that citizens of the United States–

Well, which you can’t do.

You can’t take aliens, as I understand your… or is there room for exceptions?

Can there be exceptions?

William F. Stewart:


You have just tied your own hands in this area.

William F. Stewart:

Well, what I am saying is that having an alien probation officer does not in my view enhance the relationship between himself and a non alien offender, that in Los Angeles County in particular there is a large number of citizen Spanish-speaking individuals of Spanish or Hispanic background that can relate very well with the criminal offenders, whether of the Spanish or other race, or whether he is an alien or he is not an alien.

I suppose in Ambach versus Norwick the same argument could have been made that an alien Spanish-speaking Puerto Rican might have related better to students in New York schools than a citizen and nonetheless we upheld the New York requirement that teachers be citizens.

William F. Stewart:

And I believe it would apply equally well to the Foley case, because there have been efforts, of course, for the police department to more adequately or more broadly represent the structure of society, yet you upheld a citizenship requirement for police officers, and they relate as well to non alien offenders.

I find no distinction between Foley and Ambach in that regard.

Mr. Stewart, does the record show how many probation officers there are in the County of Los Angeles?

William F. Stewart:

The record does not show that.

I can represent to the Court what–

It is a matter of public record, isn’t it?

William F. Stewart:

–Yes, it is, and it is approximately 2,500.

Twenty-five hundred?

Do you have any idea what percentage of those are Spanish-speaking citizens?

William F. Stewart:

I believe that the percentage of them are approximately, and this is a guess, in the vicinity of 20 percent, 15 to 20 percent.

I suppose a guess would not be very helpful for us unless counsel on the other side would agree.

William F. Stewart:

Yes, I understand, Your Honor, but there is nothing in the record indicating that.

I can represent that the county does have the Spanish-speaking qualification, which allows a preference in hiring for probation officers.

May I ask this, since I have interrupted you?

One of the Appellees had become a citizen.

May the other two apply for citizenship?

Have they been here long enough or whatever the requirements are that would entitle them to apply for citizenship?

Do you know?

William F. Stewart:

I am sure that they would, and I say that only because this case began in 1975, and it is now 1981, and I believe there is a five year–

The record doesn’t show whether they could have applied in 1975.

William F. Stewart:

–I don’t believe it does.

Mr. Stewart, some of the writers in this field have suggested that the regulation of aliens has really been pre empted by the federal government.

I would like to ask you whether the federal government requires probation officers to be citizens.

William F. Stewart:

As I understand it, the federal government requires all their civil servants to be citizens.

The Court considered the federal government’s restriction to citizenship in the Hampton case, and I understand that the President then issued a directive requiring citizenship of most classifications of civil servants.

I may be wrong, but I believe that they did.

Well, administrative exceptions can be made, can they not, in the federal government to employ aliens?

William F. Stewart:

I am sure that there can, Your Honor, yes.

If the convicted criminal has any rights in the area, is there anything to the notion that an American citizen might think he had some right to have a probation officer supervising him or advising the court about him who was not an alien citizen of another country?

Do you think the criminal defendants have any rights in the matter?

William F. Stewart:

I don’t think the criminal defendants have a right to a particular type of probation officer.

I think that is up to the court and the probation authorities to determine the best qualified probation officer without regard to whether he is an alien or not an alien.

I have emphasized the power of the probation officer with regard to the criminal justice system, but it is clear that in that exercise of power they exert or execute vast discretionary powers, not only with the pre sentencing report and recommendations to the court.

William F. Stewart:

They act in a quasi judicial capacity and have teen held to act in that capacity and are entitled to immunity as a judge would be for acting in a quasi judicial capacity.

They also possess peace officer status, and while it is not exercised to the same extent as a policeman, they can exercise a peace officer status and take a probationer who has violated probation into custody.

They exercise vast discretion in determining whether or not a condition of parole has been violated, and if it has, what should be the disposition.

It does not necessarily follow that he will automatically request a revocation of parole.

I think just by virtue of the extensive, expansive authority of a probation officer over juveniles, that itself would be sufficient to justify the imposition of a citizenship requirement.

They are clearly when you review their entire functions not mere functionaries, but they form the core of the state’s philosophy regarding rehabilitation of criminals.

As the crime rate increases, the function of a probation officer becomes more and more important.

As the ABA announced or stated in their report on probation, that it is one of the central features of our criminal justice system, and more and more the courts have come to rely on probationers, probation officers.

As such, they certainly execute a significant and important governmental function, in my view far expanding in many respects that of a police officer in Foley and a teacher in Ambach.

I would like to reserve my remaining time.

Warren E. Burger:

Very well.

Ms. Burdick.

Mary S. Burdick:

Mr. Chief Justice, and may it please the Court, the state of California by enactment of one simple single section of California law, Government Code Section 1031(A), in one fell swoop has banned over one and one third million legally admitted resident aliens of California from employment in more than 70 different job categories, regardless of whether those aliens are seeking to become citizens.

The jobs from which aliens are excluded include deputy probation officers, the positions which the plaintiffs in this case sought, as well as such jobs as inspectors for specialized boards, such as the boards of dental examiners–

Are we really concerned with anything except probation officers here?

Mary S. Burdick:

–Yes, I believe we are.

The probation officers were prevented from obtaining employment by a statute which sweeps too broadly and which does not comply with the mandate of Sugarman that a statute which limits constitutional rights if challenged under the Fourteenth Amendment must be narrowly drawn and precisely crafted in light of the state’s interest.

I thought overbreadth was limited to freedom of speech.

Mary S. Burdick:

Well, not necessarily.

Of course, in Sugarman, the Court struck down the statute and said it was not precisely crafted and narrowly drawn.

Well, I am probably a poor person to interpret Sugarman since I dissented in that case, but as I read it, it simply said that the state could have excluded certain jobs from aliens but that it simply swept with too broad a brush substantively rather than having conduct which might have been proscribed get off free because you couldn’t tell what it meant.

Mary S. Burdick:

Well, I don’t think that Sugarman indicated that the Court was unable to decide which job classifications were limited to citizens.

The Court said that, and gave examples of jobs that the jobs were too many and that the statutes swept too broadly, and therefore was not precisely crafted, and that is exactly what we have here, a statute–

But, Ms. Burdick, if we agreed that as applied to deputy probation officers the statute was unconstitutional, do we have to go on and deal with the overbreadth issue at all?

Mary S. Burdick:

–You would not have to in order to resolve the case of the three plaintiffs.

However, this Court would be using a prudential limit on standing, not a strict standing requirement to do so, and that would lead to the very unprudential result which the county has urged that we have 69 more cases to decide about the rest of the statute.

Now, if we were suggesting that none of the positions in this statute could ever be limited to citizens, then I would agree that this is an incorrect vehicle.

This isn’t a class action, is it?

Mary S. Burdick:

No, it is not.

Well, are you suggesting that it is time this Court fishes or cuts bait on the question of whether or not alienage may be required, or may be prohibited by a state in state employment, that it come to rest somewhere or other rather than deciding each case on an ad hoc basis?

Mary S. Burdick:

Well, the Court has clearly indicated that in some job positions aliens may be excluded, but I think, yes, this is a case where there is an opportunity to draw the line, and to establish some criteria so that the cases do not have to be resolved one at a time without any standards.

Do you think Judge Hill tried very hard to follow the Ambach and the Foley cases?

Mary S. Burdick:

Well, as the court noted below, Judge Hill and the other two judges on the panel had been California state trial judges.

They were familiar with what probation officer does.

They said in their opinion that they considered Foley, they considered Ambach.

I have to believe that they did so.

And they divided two to one.

Mary S. Burdick:

They divided two to one.

That is correct.

Ms. Burdick, going back to Justice White’s inquiry, was there a reason why this wasn’t brought as a class action?

Mary S. Burdick:

What is reflected in the record is that a first amended complaint was proposed to make this a class action.

What is not reflected in the record is that the Court urged the parties to stipulate that it did not have to be a class action because the Court believed it could reach the overbreadth issue.

There is then a stipulation in the record that the parties would drop the class allegations from the complaint and would proceed with the action.

However, the county did agree to apply the decision to all probation officers, deputy probation officers in the stipulation, whether they were named plaintiffs or not.

We couldn’t decide this as a class action, could we?

Mary S. Burdick:


We could not decide this case as a class action, could we?

Of course not, because it is not here.

Mary S. Burdick:

No, this is not a class action, and I am not purporting to–

Well, if we can’t decide this single class, how can we decide the whole class you want us to decide?

Mary S. Burdick:

–Well, I am not asking the Court to decide that no one, no member of what could have been a class could ever be required to become a citizen to get any of the jobs here.

All we are asking the Court to say is that this statute is not precisely crafted as applied to anyone.

That still leaves the legislature in the position of being able to go back and do what it could have done before, and that is examine each peace officer position and require citizenship for those where it feels it is appropriate.

Maybe this is what Justice White already asked, but whatever reason the legislature had for requiring citizenship for probation officers must also apply to everybody else thrown into this statute, such as cemetery sextons and the like.

They didn’t say, well, there is a special… they didn’t separate this, probation officers, out from the others, and whatever the reason was must be common to the entire group covered by the statute.

Is that your argument?

Mary S. Burdick:

That is correct.

When the California attorney general a decade ago examined this statute, he opined that it was unconstitutional, examined the legislative history, and said he could find no reason for a broad sweeping citizenship requirement.

The citizenship requirement is not contained in a statute which says, probation officers must be citizens, and a separate one that says investigators for the board of dental quality assurance must be citizens.

What we had was one statute enacted that said peace officers must be citizens.

Mary S. Burdick:

The definition of peace officer is contained scattered throughout other parts of California law, has evolved over the years, and there has never been any attempt to attach a citizenship requirement individually to the job categories.

The legislature acted with a broad brush.

And yet you concede, do you not, that you represent only three people here and each of them are applicants for the position of probation officer.

Mary S. Burdick:

Yes, that’s correct.

The Attorney General’s opinion was way back in 1970, wasn’t it?

Mary S. Burdick:

Yes, it was.

That would be before Foley and Norwick, Ambach.

Mary S. Burdick:

That’s correct.

The Attorney General of California anticipated Sugarman, Foley, and Ambach, in his opinion, indicated that under current law even before those decisions the statute violated the Fourteenth Amendment, but even after the Attorney General’s opinion and this Court’s decisions, at least the county of Los Angeles in California has continued to enforce the statute.

Has the Attorney General appeared in this litigation at all?

Mary S. Burdick:


And yet it is his duty to defend the statute under California law, or not?

Is that to be imposed on the county officials?

Mary S. Burdick:

The only obligation that I know of to involve the Attorney General is under this Court’s rules to send him the required notice of the case.

He does not have any obligation that I know of under California law to appear.

This case offers an excellent opportunity for the Court to set some criteria and develop a way to draw lines in future cases where public employees are excluded if they are not citizens.

I offer and suggest three criteria which may help give some meaning to the language of Sugarman, Foley, and Connelie.

This language… these criteria can be used to evaluate jobs that are policy implementation jobs, non elective, non appointive, and I believe that these will give some substance to the language of this Court’s opinions that require that the public be substantially affected by jobs which are limited to citizens, and that those jobs lie at the heart of representative government.

My first suggestion is that we inquire whether public employees have an important public power which puts them in a position of authority and control over a substantial portion of the citizen population.

My second suggested criteria is that we ask if there is any way in which the citizen government buffers the contact between the population in general and the public employee, either by screening the clientele of the public employee or by interposing some direct supervisor.

On your first criteria, Ms. Burdick, do you mean all the people of California, all the people of Los Angeles County, or all the persons criminally convicted in Los Angeles County?

What is your constituency that you have in mind for that first criteria?

Mary S. Burdick:

The constituency of the probation officer in California is that portion of the population which has been arrested by the police–

I want to know what constituency you were talking about when you mentioned your first criteria.

Mary S. Burdick:

–Well, I would say that a job which met the first criteria would require that all of… substantially all or a significant portion of the population within the jurisdiction of the public employee, the geographical jurisdiction, be subject to authority and control.

For example–

Probation officers don’t deal with the populace generally, do they?

Mary S. Burdick:

–No, exactly.

That is my point.

I don’t believe probation officers meet this first criteria.

Their constituency is primarily the convicted defendant, is it not?

Mary S. Burdick:

That’s correct.

Now, their contacts with other people are to acquire information about those convicted defendants.

Is that so?

Mary S. Burdick:

That’s correct.

Did I correctly understand Mr. Stewart to say they have 2,500 probation officers?

Mary S. Burdick:

I have no information and there is no information in the record as to the total number of probation officers.

On that first criteria, as you pointed out, the probation officer deals with a very small population.

The amicus Service Employees Union has offered data which can be found at their Footnote 4 and 11 and the accompanying text that indicates that one tenth of 1 percent of the California population comes under the jurisdiction of a probation officer.

My second suggested criteria was whether there was a buffer between the public and the public employee.

My third suggestion is that we ask if the public employee holds a position which has some symbolic importance in the public mind in terms of what the public would perceive as the meaning of the power and authority of the government to control and to assimilate the general population.

If we apply these criteria to the probation officer functions, I think we will see that there is a distinct difference between a probation officer on the one hand and public employees such as police officers and teachers on the other.

But when you speak of the public, certainly the public speaks through the legislature, does it not?

Mary S. Burdick:

Yes, and it is the legislature which I would suggest is the entity which is properly limited to citizens.

It is the legislature which would control the authority of the court, the court which in turn would control the authority of the probation officer.

The probation officer is very much screened out from the political process by the time a small portion of the population comes under his control.

But when the legislature says that a probation officer must be a citizen, doesn’t that mean that the public perceives that the probation officer ought to be a citizen?

Mary S. Burdick:

I don’t know if that is true.

In this case, the legislature said all peace officers shall be citizens.

What they had in mind at the time they enacted that statute as to what a peace officer might be, I don’t know, but if it is true that there has been a reasoned legislative decision here, then there has been a reasoned legislative decision that messengers have to be citizens, too, and I think at some point the Court has to go behind that decision to see whether it violates the Fourteenth Amendment.

Well, we don’t ordinarily require that all state legislative or for that matter Congressional decisions be “reasoned”, do we?

Mary S. Burdick:

No, but when there is a challenge under the Fourteenth Amendment, particularly when a discrete and insular minority such as aliens is involved, this Court has required that there be a compelling justification for the classification.

If I may apply my criteria to the jobs performed by a probation officer, I think we will see the distinction between a probation officer on one hand and a teacher or a policeman on the other.

Probation officers, the court found, act as advisors to the court by preparing pre sentence and probation reports for juveniles and adults.

The content of that report is factual, and the statute states exactly what is to be included.

Therefore, there is very little discretion in assembling the factual material in the probation report.

The probation officer, of course, does make a recommendation as to probation, but in California only the judge can set probation, set the terms and conditions, revoke probation, or modify it.

In court, the probation officer does act as an advisor to juveniles who do not have legal counsel.

However, in this capacity, they become less and less like decision makers and more like legal counsel, which this Court, of course, has held in In re Griffiths may not be limited to citizens.

In their supervisory capacity, probation officers meet and counsel the population under their control, which I have indicated is very small.

Mary S. Burdick:

The documents relied on by the Appellants to support their argument that probation officers perform an important function indicate that on the average a probation officer can meet with a probationer less than once a month.


Would you concede that citizenship might be made a requirement by the legislature for judges?

Mary S. Burdick:

–In California there is such a requirement, and the criteria that I have offered are for non appointive, non elective positions.

I am not sure they would be generally applicable.

But it would be a very difficult case to argue that judges could not be required to be citizens.

Ms. Burdick, just out of curiosity, is the prosecutor in Los Angeles County required to be a citizen?

Mary S. Burdick:

I don’t know.

Mr. Stewart tells me he is.

He does have to be.

Ms. Burdick, could I… suppose this statute that is here in Section 1 said all school teachers must be citizens, and Section 2, all policemen must be citizens, Section 3, all other peace officers must be citizens, and then the definition of police officer is just as it is in this case, and suppose your clients were either applicants for police positions or as teachers.

Mary S. Burdick:

If you–

Do you think you would be here making the same argument, that because the statute is so broad, it may not be applied to teachers or police officers?

Mary S. Burdick:

–I think if there were a statute that said police–

Well, this is the very statute here.

The only difference is that the first two sections apply to teachers and police officers, and your clients are some of those people.

Mary S. Burdick:

–I believe that I would have standing to raise that issue.

However, for prudential reasons, the Court might find that I would not have enough of a stake in the case and would not be raising it in the proper context, that it would be an inappropriate case to decide the full breadth.

Well, what if we decide that probation officers are more like police officers?

And that if the only section there was in the statute dealt with probation officers, you would lose.

Do you think you should win because the statute applies to some other positions?

Mary S. Burdick:

I think in this case, yes, we should be able to prevail as the three judge court below found on the issue that this statute was not carefully crafted by the legislature in light of the legislature’s legitimate interest in protecting the political community.

That would still leave the California legislature free to go back and enact a narrow statute which applied only to the categories this Court found appropriately limited to citizens.

Supposing the legislature did go back and craft, as you say, a narrowly drawn statute that said all probation officers must be citizens.

Would you feel that was constitutional or unconstitutional?

Mary S. Burdick:

That would be unconstitutional, because I do not believe that probation officers properly fall within the political community and are similar to police officers and teachers.

I believe the probation officer performs more one of the common occupations.

Well, so then you really don’t need the overbreadth argument at all, do you?

Mary S. Burdick:


As I indicated, we could win if this Court only ruled that probation officers cannot be required to be citizens.

Mary S. Burdick:

However, it would then be in the posture that perhaps 69 more cases would be necessary to reach the point that the District Court, the three judge court had already met, and that was that the statute is overbroad, and a citizenship requirement, if enacted, will have to be done so narrowly.

And therefore probation officers would be different from police officers and teachers.

Mary S. Burdick:


Ms. Burdick, do you think the Court should consider a federal pre emption standard in looking at these cases?

Mary S. Burdick:

I know that it has been argued in earlier cases that federal immigration law and federal power pre empts the state imposition of any citizenship requirements.

Although that issue is not directly addressed in Foley and Ambach, because of the existence in Foley and Ambach, we have chosen not to pursue that claim here.

Ms. Burdick, let me ask you one thing.

Mary S. Burdick:


Is there a distinction in the facts, however relevant it may or may not be, between this case and Ambach in that your people were willing to take a loyalty oath and those in Ambach did not go that far?

Mary S. Burdick:

I had thought that the plaintiffs in both Foley and Ambach had indicated their willingness to sign the pre employment loyalty oath.

But in any event, yours are willing?

Mary S. Burdick:

Ours are all willing, and Mr. Chavez-Salido, in fact, had his petition for naturalization pending when he applied for employment and was still denied employment.

If I apply the criteria that I have suggested to the Job of probation officer, I would note that a probation officer does not perform important functions which put him in a position of power and authority over a substantial portion of the population.

As I noted, they deal with approximately one tenth of 1 percent of the population.

They have control of that percentage of the population only during the period of probation, and their contact during that period is intermittent.

How did you arrive at that one tenth of 1 percent?

I missed your calculation.

Mary S. Burdick:

The figures came from the–

Population of Los Angeles County?

Are you starting with that?

Mary S. Burdick:

–I took… the figures are from Footnotes 4 and 11 of the amicus brief of the Service Employees Union, and the figure was 23 million Californians and 23,000 probationers.

Does the record show the total number of persons in confinement in California then?

Mary S. Burdick:

No, it does not.

If we compare then the police officer and the teacher, we see that a police officer has authority and power to intervene in the life of any citizen during the entire life of that citizen.

A teacher has power and authority over substantially all citizens for at least ten to twelve years of their lives, and for substantial periods of time during those ten to twelve years.

Well, that is not true of a student at a private school, nor is it true of a police officer if he makes a warrant, unjustified, warrantless arrest, is it?

Mary S. Burdick:

I can see that public school teachers deal with probably 85 to 90 percent of the population.

I consider that a substantial enough proportion to meet my first criteria.

It is also true, of course, that a policeman can only intervene with one person at a time, and that his decision to do so may eventually be found to have been in error.

However, the policeman has the authority to make the decision on the spot in his own discretion whether to intervene with any citizen at any time.

Mary S. Burdick:

The supervision and the oversight of that decision comes afterwards, and then it is by the court.

Well, don’t you think that supervision and oversight also comes from his lieutenant and his captain?

Mary S. Burdick:

Yes, it does, but at the moment of intervention, the police have the exercise of their own personal understanding of their job and their obligation as their only guidance.

There is no direct supervisor walking with the policeman on a beat.

Well, how about the probation officer who decides to suspend probation or to hold the first of the Morrissey versus Brewer hearings?

Doesn’t he have the initial right to make a determination that there is grounds for holding the second type of hearing on his own?

Mary S. Burdick:

In California, a probation officer cannot alter or revoke, make any changes in probation at all.

He can merely bring the issue before the judge, where the judge makes that decision.

But he has the right to institute the proceeding, doesn’t he?

Mary S. Burdick:

Yes, he can suggest to the court that a change should be made, but only the court can make that change.

Therefore, again, he acts as an advisor, bringing issues to the court, but not as the ultimate decision maker.

My second criteria was that we look to see if there is some buffer between the general population and the public official, either by the intervention of a supervisor or by screening of the clientele of the public officer.

It is the police, the judges, and the juries who winnow out the general population and find that narrow group which should be under the control of a probation officer.

I would suggest that it is then the police, the judges, and the juries who exercise the role of government in the criminal justice system, and that they simply pass on to the probation officer a very small class of people in need of limited supervision under set terms and conditions for a short period of time.

On the other hand, as I have already suggested, the police come in direct contact with the general public, and teachers come in direct contact with all of the general public.

There is no intervention, and there is no supervisor.

My third criteria was that there be some symbolic importance in the job in order to give meaning to the context of what we believe lies at the heart of our representative government.

Police and school teachers are constant, pervasive symbols of what it means to be under the control and authority and the assimilative forces of our society.

A probation officer is an important employee, but he is not a symbolic functionary of government.

Isn’t a probation officer an arm of the sentencing judge in California?

Mary S. Burdick:

Well, he is an advisor to and is present in court, but I don’t think that he rises to the same importance in terms of symbolism as the judge or the jury.

What do you think the probationer or parolee thinks when the probation officer comes around to have a chat with him?

Does he think that had something to do with the Judge?

Mary S. Burdick:

He certainly understands that the probation officer is following the instructions of the judge, but I don’t think that he has the same reaction to the probation officer who is an employee in an office that he would have to the armed police officer or to the judge behind the bench.

Are the probation officers in California permitted to carry arms under some circumstances by administrative leave?

Mary S. Burdick:

Only if their employing authority authorizes it, and to the best of my knowledge, and as far as the record reflects, no such authorization has been given in Los Angeles.

Ms. Burdick, do they wear uniforms?

Mary S. Burdick:

I believe they do not.

In short, a probation officer, like a teacher or a policeman, is an advisor, not a decision maker.

He deals with a very small, carefully screened portion of the population for a short period of time.

Mary S. Burdick:

The three judge court below comprised of former California state trial judges with firsthand knowledge of the operation of the probation system twice concluded based on the evidence presented to them that probation officers do not perform functions that fall within the heart of a representative government.

Ms. Burdick, let me ask you one other question.

Does the record tell us how these people are appointed?

I know there is an examination of some kind.

Who is the appointing authority?

Mary S. Burdick:

I don’t know what the appointing authority is, or whether they are simply employees of the probation department.

And who runs the probation department?

Is that an elected office?

I am just wondering if they are possibly patronage people.

Mary S. Burdick:

I have no information that they are patronage people, no.

They have a competitive examination.

If there are no further questions.

Warren E. Burger:

Mr. Stewart?

William F. Stewart:

Mr. Chief Justice–

Could you answer my last question?

You probably know.

How are they appointed?

William F. Stewart:


They are appointed by competitive examination.

They are not patronage.

A competitive examination, and strictly on merit?

It is part of the civil service–

William F. Stewart:

That is correct.

–Yes, but who appoints them?

The judge?

The state’s attorney?

Doesn’t somebody appoint them?

William F. Stewart:

Appoint the individual probation officers?

Yes, sir.

William F. Stewart:

Yes, they are appointed by the chief probation officer, and based upon a competitive civil service list.

William F. Stewart:

I agree with the Appellees that some lines should be drawn, but I believe that the lines drawn by the Appellees are too narrow and inappropriate for this particular job function.

Probation officers advise their juveniles of constitutional rights.

Moreover, if they act as legal advisors to juveniles, they act as a public legal advisor, in a sense, and this Court, while it held that citizenship could not be required of private attorneys, the Court has not had the opportunity to consider whether or not citizenship could be required of public counsel.

Now, judges and prosecutors also have somewhat limited contact, yet as an integral part of the criminal justice system, of which he probation officer is a part, they can legitimately be required to be citizens.

I believe that the Appellees have failed to articulate any viable reason as to why probation officers should be excluded from that team of judge, prosecutor, and police officer, and could not be limited to citizens.

Incidentally, Mr. Stewart, I know it is not germane, but do you know whether there is any constitutional or statutory provision that requires a member of this Court to be an American citizen?

William F. Stewart:

I don’t know, Your Honor.

Or even a lawyer?

I don’t think you will find it.

Well, perhaps the question is, could Congress pass a statute requiring members of the federal judiciary to be citizens of the United States?

William F. Stewart:

I believe they could, Your Honor.

I believe they could, and I believe California could pass a statute that requires their police officers and their probation officers and their judges and their prosecutors to be citizens as well, because I think the standard here is too narrow that they have articulated, but it is whether or not the individual has been given or cloaked with some aspect of the sovereign power of the state.

This Court has said that the states should be given broad power to structure their political community, and I think probation officers clearly fall within that political community.

They exercise a sovereign–

But isn’t it true that everybody who works for the government exercises some of the government’s sovereign power?

William F. Stewart:

–I don’t believe so, Your Honor.

There are jobs that are government employment, but there are other jobs, and we make this distinction in municipal law between a governmental officer who exercises a sovereign power–

You would differentiate between the governmental functions and the proprietary functions, is your basic distinction.

William F. Stewart:

–Yes, between the type of employment such as a clerk typist or an engineer or an accountant who may work with the government or he may work outside the government.

When you are dealing with–

How about an accountant for the probation department?

William F. Stewart:

–Pardon me?

How about an accountant for the probation department?

William F. Stewart:

I don’t believe that he could be restricted to be a citizen.

Is there a requirement that members of your staff have to be citizens?

William F. Stewart:

Yes, there is, Your Honor.

There is a requirement that–

Statutory, county?

William F. Stewart:

–A statutory requirement that county–

Thurgood Marshall:

I have yet to run across a bureaucrat of the federal or state government who wasn’t the very epitome of all authority in government.

Thurgood Marshall:

Have you?

William F. Stewart:

–Well, I would like to be a little more modest than that, Your Honor.

We do draw a distinction, though, in civil law between a governmental employee and one who is a governmental officer in the sense of possessing and exercising sovereign powers, and here, the state of California has conditioned a grant of some of their sovereign powers upon citizenship, in a bond that is simply an oath will not suffice.

If an oath would suffice, then why even require citizenship?

You have done away with the requirement of citizenship if someone merely can give an oath to uphold the Constitution or to obey the law in lieu of citizenship.

Mr. Stewart, some time ago Justice O’Connor asked you kind of a double question, and I think you didn’t get back to the first one.

Are you persuaded at all by this theory of pre emption that some of the academics have advanced in this area?

William F. Stewart:

No, I do not, because that same point could have been made in Foley and Ambach, and the Court was not concerned about pre emption in those two cases, and I think by virtue of the Court’s–

Did you say the point was made or could have been made?

William F. Stewart:

–Well, I don’t believe that the decision in Ambach or Foley or Sugarman turned on federal pre emption.

The Court, when it articulated the standards that the states had broad power to define their political community and applied that then to the context of Foley and Am Dach, did not say that they were pre empted from that in terms of citizenship because of the federal jurisdiction.

No, but I think the point of the professorial comments is that this is the way out of this wilderness, and line drawing, and the like, to adopt a theory of pre emption.

You wouldn’t like that, of course.

William F. Stewart:

No, Your Honor.

I would recommend that we look more at the exercise of the sovereign powers as a way to draw the line rather than just simply take away completely the state’s power to require citizenship.

Thank you, counsel.

The case is submitted.