Weaver v. Shaffer

290 S.E.2d 244, 170 W. Va. 107

• Court: West Virginia Supreme Court
• Decided: April 2, 1982
• Docket: 14415
• Status: Published

Opinions

NEELY, Chief Justice:

The appellant, Clarence Weaver, challenges a provision of the West Virginia Civil Service for Deputy Sheriffs Act which prohibits political activity on the grounds that the statute is vague and overbroad. The Circuit Court of Kanawha County found that the appellant had engaged in proscribed political activities while a member of the classified civil service and concluded that the challenged statute is not so vague or broad as to be constitutionally infirm. We affirm.¹

In 1971 our Legislature enacted W.Va. Code, 7-14-1 [1971] et seq. establishing civil service for deputy sheriffs. The act bars dismissal or reduction in rank for political reasons except that Code, 7-14-15(a) [1971] provides in pertinent part that:

On and after the effective date of this article [July 1, 1971], no deputy sheriff covered by the provisions of this article shall engage in any political activity of any kind, character or nature whatsoever, except to cast his vote at any election or shall act as an election official in any municipal, county or state election. Any deputy sheriff violating the provisions of this section shall have his appointment vacated and shall be removed, in accordance with the pertinent provisions of this section.

The Act provides two methods for removing a deputy sheriff. Code, 7-14-13 [1971] allows private citizens to petition the county civil service commission for removal and Code, 7-14-17 [1971] provides for removal by the sheriff.

On 1 January 1973, the then recently elected sheriff of Boone County, John Pro-tan, discharged the appellant pursuant to Section 17 for unlawful political activity. Mr. Weaver initially demanded a hearing before the Boone County Civil Service Commission, but later decided to abandon the hearing and seek a writ of mandamus in this Court. This Court denied the writ in Hall v. Protan, 156 W.Va. 562, 195 S.E.2d 380 (1973), on the grounds that the facts surrounding the discharge were in dispute and Mr. Weaver had not exhausted his administrative remedies.

A citizens’ petition for the appellant’s removal was filed on 6 July 1973, again alleging unlawful political activity as the grounds for removal. Hearings were held before the Civil Service Commission from June 1973 through April 1974. On 16 April 1974, the Commission ordered Mr. Weaver dismissed from his position as deputy sheriff finding that the appellant had regularly been present in the campaign headquarters of sheriff candidate Albert Gore during the primary election in the spring of 1972; that he attended at least one political dinner during the campaign; and, that appellant transported and/or distributed campaign literature during the same campaign in support of some candidates who were not definitely identified. Appellant sought review in the Circuit Court of Boone County from which the case was transferred to the Circuit Court of Kanawha County where the findings of the Commission dismissing Mr. Weaver were affirmed. This appeal followed.

I

At the outset, the appellant contends that the findings of the Civil Service Commission are clearly wrong and not supported by the evidence. This assignment is without merit. Ample evidence taken at several hearings supports the Commission’s conclusion that Mr. Weaver engaged in political activity by being present in the campaign headquarters of sheriff candidate Gore, attending one political dinner and transporting and/or distributing campaign literature. This Court has held that “ ‘[a] final order of a police civil service commission based upon a finding of fact will not be reversed by a circuit court upon appeal unless it is clearly wrong or is based upon a mistake of law. Point 1, Syllabus, Appeal of Prezkop, 154 W.Va. 759, 179 S.E.2d 331 (1971).’ Syl. pt. 1, City of Logan v. Dingess, 161 W.Va. 473, 242 S.E.2d 473 (1978).” Scott v. Ernest, 164 W.Va. 595, 264 S.E.2d 635 (1980).

II

The essence of the appellant’s other assignments is that W. Va. Code, 7-14-15(a) [1971], denies his constitutional right to free political expression because it is both vague and impermissibly broad in its scope. During the 1960s and 1970s the United States Supreme Court wrestled with the doctrine of overbreadth. Certainly the cases on this subject are not consistent, but there does appear to be a context specific withdrawal from the Rhadamanthine application of the doctrine in civil service cases. The point of entry to the resolution of the challenge at hand, therefore, is the recognition that there is a legitimate governmental interest in restricting political activities of classified employees. United States Civil Service Commission v. National Ass’n of Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973); Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); United Public Workers of America v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947). Such restrictions are designed to insure advancement based on merit in the governmental service and to protect employees from improper political influence. Mitchell, supra. The government, therefore, has an interest in regulating the conduct and speech of its employees that differs significantly from the interest it possesses in regulating conduct and speech of the citizenry in general. Pickering v. Board of Education, supra.

Historically the problem which statutes such as W.Va.Code, 7-14-15(a) [1971] present is that they are so broadly written that they appear to proscribe activity which is protected by the First Amendment to the Constitution of the United States and which, under any set of facts, the government cannot be considered as having a legitimate interest in proscribing. In this regard we do find that W.Va.Code, 7-14-15(a) [1971] is overly broad since it would appear to proscribe activities which the Supreme Court of the United States has indicated are protected by the First Amendment even with respect to employees of a classified civil service.²

III

We must now turn to the remedy which is enjoined upon us by the United States Supreme Court with regard to curing a statute of this type; the issue is whether this statute can be cured by judicial construction or must be struck down in its entirety.

In analyzing Supreme Court authority it is necessary to establish an historical perspective which will lead us to appreciate that in the First Amendment area many holdings are quite context specific. It must be remembered that in the 1960s there was still broad-based, state government supported, militant resistance to Fourteenth Amendment racial equality. Racial equality was indeed inextricably intertwined with problems inherent in wealth discrimination and this led to a confluence of the issue of racial equality with certain issues of social equality (not necessarily related to race) in the area of both civil rights and civil liberties. While the cases which require the strict application of the overbreadth doctrine are not necessarily directly related to efforts towards either racial or social equality, nonetheless, an absolutist interpretation of the First Amendment emerged ineluctably from the judicial mind set of the time.

No effort of judicial imagination is capable of intelligently reconciling the inconsistent precedent generated by the United States Supreme Court in the last twenty years with regard to the overbreadth doctrine. The only reasonable conclusion is that once the Supreme Court began striking broad statutes in highly context specific situations while attempting to sustain their conclusions with general principles, the principles were per force applied to other contexts for which they were not originally conceived, which ultimately required a retreat from the principles themselves.³ This, probably more than anything else, explains the dramatic retreat from overbreadth in Young v. American Mini Theatres, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976) since that case is entirely at odds with Erznoznik v. City of Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 2276, 45 L.Ed.2d 125 (1975).⁴ For example we find in Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965)⁵ that persons have standing to attack overly broad statutes even when their own conduct would be properly proscribed under a constitutionally narrow statute; yet, in Young v. American Mini Theatres, supra, the Court said, “[i]f the statute’s deterrent effect on legitimate expression is not ‘both real and substantial,’ and if the statute is ‘readily subject to a narrowing construction by the state courts,’ the litigant is not permitted to assert the rights of third parties.”

The United States Supreme Court has been increasingly reluctant to apply the overbreadth doctrine since Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973) when the Court stated: “Application of the over-breadth doctrine in this manner is manifestly strong medicine. It has been employed by the Court sparingly and only as a last resort. Facial overbreadth has not been invoked when a limiting construction has been or could be placed as the challenged statute, [citations omitted].” In the cases after Young v. American Mini Theatres, supra, when the Court virtually reversed its prior holdings based on over-breadth analysis, we can find only one instance when the Court used overbreadth to void a statute, Village of Shaumberg v. Citizens, Etc., 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980),⁶ although the Court addressed overbreadth arguments on numerous occasions. In light of the diminished application of overbreadth analysis, we do not feel compelled to apply the doctrine in the case before us.

Instead we are guided by Letter Carriers, Mitchell, and Broadrick which upheld limitations on political campaigning and management, for as the United States Supreme Court stated in Elrod v. Burns, 427 U.S. 347, 371, 96 S.Ct. 2673, 2688, 49 L.Ed.2d 547 (1976), “subordination of these activities was permissible to safeguard the core interests of individual belief and association.” In Elrod, the Court held that a non-policy making government employee could not be discharged on the basis of his beliefs, because in the opinion of the Court delivered by Justice Brennan and concurred in by Justices White and Marshall “if the First Amendment did not place individual belief and association above political campaigning and management, at least in the setting of public employment, the restraints on these latter activities could not have been judged permissible in Mitchell and Letter Carriers.” Thus, in the Elrod opinion written by Justice Brennan, a leader in the Warren Court era of overbreadth analysis, the Court validated restrictions upon the political activities of public employees once again.

In the final analysis the decision concerning the federal question in the case before us must be based upon the most mechanical application of stare decisis: in Letter Carriers, supra and Broadrick, supra, the two cases exactly on “all fours” factually with the one before us, the Supreme Court has held that civil service statutes may be cured by authoritative, narrowing interpretations. Thus in the case before us, we find that the statute’s deterrent effect on legitimate expression is neither real nor substantial and that after today’s decision there will be an adequately narrow, authoritative interpretation proscribing only those activities which the Supreme Court has indicated may constitutionally be proscribed in Letter Carriers, supra. “As we see it, our task is not to destroy the Act if we can, but to constue it ... so as to comport with constitutional limitations.” Letter Carriers, supra 413 U.S. at 571, 93 S.Ct. at 2893.

IV

Having disposed of the appellant’s federal grounds we must now turn to his claim under W.Va.Const, art. Ill, § 7, that the statute is defective on State grounds. We have consistently held that the West Virginia Constitution is at least as solicitous of individual rights as its federal counterpart, State ex rel. Daily Mail Publishing Co. v. Smith, 161 W.Va. 684, 248 S.E.2d 269 (1978), aff'd, 443 U.S. 97 (1979), and we accept the appellant’s argument that W.Va.Code, 7-14-15(a) [1971] is both vague and overbroad under the West Virginia Constitution. In circumstances such as those before us, however, in the last several years this Court has consistently adhered to the “doctrine of the least intrusive remedy,”⁷ an easily understood principle which permits a statute which is unconstitutional on its face to be saved from total destruction by judicial construction. We prefer this approach to a manipulation of procedural rules such as standing. Most appellate courts have recognized in one way or another the problems which can be created for society by striking down for a technical defect a statute which, in general, achieves a worthwhile public goal when there is absolutely no assurance that the Legislature will again pass a similar statute.

Law is a practical scheme designed by practical men to provide a more or less rational and just system of government. That is hardly either a new or a startling conclusion, yet it should be recalled from time to time in order to put a little flesh on the theoretical skeleton of government. The Deputy Sheriffs’ Civil Service Act before us consists of numerous provisions, each of which reflects a delicate political compromise in the legislative process. W.Va.Code, 7-14-21 [1971], however is the “clinker,” since it provides severability. That section says:

If any provision of this article or its application to any person or circumstance is held unconstitutional or invalid, such unconstitutionality or invalidity shall not affect other provisions or applications of this article, and to this end the provisions of this article are hereby declared to be severable.

Now it should not come as any great surprise to the average person that the reasonable proscription of factional or partisan political activity is a quid pro quo of civil service protection; otherwise, the statute would have the direct opposite effect of that intended. Were we to strike the proscription on political activity while leaving intact civil service protection, we would then have a classified civil service which is entirely free to participate in the most robust manner in the political process and, through that process, achieve increases in salary, lavish perquisites, and opulent working conditions through political extortion. Furthermore, all this could be accomplished without the control which forthright spoils system politics exacts by making everyone’s job dependent on the successful management of the senior elected officer, in this case the sheriff. Since by the plain language of Code, 7-14-21, [1971] severability is mandated in the event that any provision of the article is found unconstitutional, we are enjoined either to save the section proscribing political activity or strike it alone, leaving the job security provisions of the article still in force and effect.

It is here that there is a practical divergence between the theory of democratic government and the mechanics of the legislative process. In theory, upon striking the section proscribing political activity the Legislature should, indeed, rush to re-enact that section in such language that it will sustain constitutional scrutiny. In practice, however, there would be almost no pressure by any organized power group to re-enact the political proscription section; in fact, all of the organized pressure would come from the deputy sheriffs who would grind the legislative process to a purposeful halt in their efforts to preserve their rights to political extortion. This is particularly easy since a legislature is an inherently negative institution designed with the primary purpose in mind of prevention of the passage of bad legislation. While the structure of the institution is highly serviceable in this regard, that same structure presents problems when there is a need to re-enact a statute of the type before us.

Originally the medieval parliaments which were the direct ancestors of our modern legislatures were established not to initiate policy but rather to give or withhold assent from policy made by the King. The purpose of parliament was to restrain other institutions of society — King, powerful nobles, judges, and royal officers — from interfering with the complex matrix of interlocking privileges which were usually referred to as “the traditional rights of the subject.” In former times people were more willing than they are today to identify with the forces of conservatism; it is unlikely that any modern political party would echo Simon de Montford’s Thirteenth Century political slogan nolumus leges Angli-cae mutare, traditionally translated, “the laws of England will never change.”

Yet people want security in the continuance of their privileged positions as much today as they did in the Middle Ages at the dawn of parliamentary development. The institutional system which gives security in everyone’s vested interests, namely the Legislature, also gives everyone else security in his vested interests, and it is for that reason that legislatures have organized themselves in such a way that the most powerful force in the institution is inertia. Furthermore, this observation is not intended in any pejorative sense; in fact, it is a monument to the ingenuity of men and women of government that the design of a legislature is quite successful in frustrating the efforts of most powerful predators of the political jungle to subvert the force of government to their own selfish greed.

It is a purposeful inertia which is the primary mechanism for achieving social protection from powerful predators. Such an engine has as its outstanding virtue that to overcome the inertia requires an act of Herculean human will, and this is seldom achieved by either accident or inattention, but rather only through a legitimate blending of political interests in such a way that new legislation receives general approval. It is through inertia that legislators survive intense political pressure from predators without either losing their jobs or destroying the public weal. The unorganized consumer or taxpayer is usually the beneficiary of the inertia machine since organized predators are seldom balanced in the political process by an equally powerful organization of victims. Inertia is designed to protect victims — taxpayers, consumers, and small businesses.

At the time the Deputy Sheriffs’ Civil Service Act was passed there was a unity of interests among the deputy sheriffs themselves, the citizenry seeking a professional, well-trained, continuing law enforcement agency in each county, and the sheriffs, who at the time, could not succeed themselves and wished to provide job security for their appointed employees. The result of the political interaction of all of these forces was a civil service plan which gave each group something important which it wanted while at the same time exacting onerous conditions before conferring the desired benefits. The initiating and lobbying force in the passage of the original statute was the Deputy Sheriffs’ Association which provided the pressure to overcome the inherent inertia of the legislative process. If, however, we were to strike the provision proscribing political activity, what comparable political force would organize itself to re-enact a section proscribing political activities? Certainly not the deputy sheriffs, sheriffs eligible for re-election, and political factions affiliated with the incumbent sheriffs and deputy sheriffs who would all be militantly against such re-enactment. The class of persons who will be injured by political participation by deputies is as yet unknown, unknowable, and certainly unorganized. This, in fact, is almost the direct opposite of the factual pattern in the cases during the 1960s where the Supreme Court struck down overbroad statutes circumscribing First Amendment rights.⁸ In those cases the victims of evil statutes were unorganized and politically impotent while the proponents were organized; here if the statute falls, the victims of the fallen statute are the organized public, while the recipients of the unintentional political bonanza are sufficiently well organized to maintain it in an inherently negative legislative process. In circumstances such as these, sound public policy demands the application of the doctrine of the least intrusive remedy to further the intention of the Legislature and maintain the original political balance.

V

Accordingly, we interpret W. Va. Code, 7-14-15(a) [1971] as proscribing only those political activities which the Supreme Court has decided in Letter Carriers, supra may constitutionally be proscribed. These include: (1) holding a party office; (2) working at the polls; (3) acting as a party paymaster for other party workers; (4) organizing a political party or club; (5) actively participating in fund-raising activities for a partisan candidate or political party; (6) becoming a partisan candidate for, or campaigning for, an elective public office; (7) actively managing the campaign of a partisan candidate for public office; (8) initiating or circulating a partisan nominating petition or soliciting votes (i.e., campaigning) for a partisan candidate for public office; and (9) serving as a delegate, alternate or a proxy to a political party convention. Since the United States Supreme Court has specifically allowed that in circumstances such as the one before us a narrowing interpretation of a broad statute may permit the statute to be saved, and since we find that under the West Virginia Constitution this is a fit occasion for the application of our dbctrine of the least intrusive remedy, we give the statute the appropriate narrow interpretation and, accordingly, the judgment of the Circuit Court of Kanawha County is affirmed.

Affirmed.

1 . This case was originally assigned to another justice but after several attempts at its resolution in a series of decision conferences it was reassigned to this writer in October 1980.

2 . The preeminent statement on this subject is found in Civil Service Commission v. Letter Carriers, supra, 413 U.S. at 556, 93 S.Ct. at 2886 where the United States Supreme Court indicates that a government may proscribe “[Organizing a political party or club; actively participating in fund-raising activities for a partisan candidate or political party; becoming a partisan candidate for, or campaigning for, an elective public office; actively managing the campaign of a partisan candidate for public office; initiating or circulating a partisan nominating petition or soliciting votes for a partisan candidate for public office; or serving as a delegate, alternate or proxy to a political party convention_" Obviously our statute could be erroneously construed to proscribe more than that allowed.

3 . Justice White relied on the differing levels of overbreadth scrutiny in certain contexts for his analysis in Broadrick v. Oklahoma, 413 U.S. 601, 616, 93 S.Ct. 2908, 2918, 37 L.Ed.2d 830 (1973) where he observed that statutes seeking to regulate political activity in an even-handed manner, "have in the past been subject to a less exacting scrutiny.” Similarly in Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), the Court rejected an overbreadth challenge to the Lloyd-LaFollette Act providing for the discharge of federal civil service employees for “such cause as will promote the efficiency of the service.” The Court sustained a statute with comparably broad language in Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974) when the Court upheld the Uniform Military Code of Justice provisions which proscribed "conduct unbecoming an officer and a gentleman,” and a provision prohibiting “all disorders and neglects to the prejudice of good order and discipline in the armed forces.”

4 . In Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975) the Court held a city ordinance overbroad which prohibited the exhibition of films containing nudity by drive-in movie theatres when the screen is visible from a public street or place. The next term, in Young v. American Mini Theatres, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976) the Court sustained against an over-breadth attack, an ordinance prohibiting operation of any "adult” movie theatre or similar establishment within 1000 feet of any other such establishment. To our eyes one of the few distinctions between these cases is that one covers drive-in theatres while the other covers sit-down theatres. As Justice Stewart noted in his dissent "[i]n short, Erznoznik is almost on ‘all fours’ with this case.” Id. at 88, 96 S.Ct. at 2461.

5 .In Dombrowski, supra, the Court invalidated on overbreadth grounds Louisiana’s subversive activities and Communist Control Law and Communist Propaganda Control Law. The Court found the statutory definition of a "subversive organization” so broad that constitutionally protected speech was inhibited.

6 . In Schaumberg, supra, the Court invalidated a village ordinance prohibiting door-to-door solicitations of contributions by charitable organizations not using at least 75% of their receipts for "charitable purposes.”

7 . We originally articulated this doctrine as "least obtrusive remedy" in State ex rel. Harris v. Calendine, 160 W.Va. 172, 233 S.E.2d 318 (1977); Waite v. Civil Service Commission, 161 W.Va. 154, 241 S.E.2d 164 (1977); State ex rel. Whitman v. Fox, 160 W.Va. 633, 236 S.E.2d 565 (1977); and, State ex rel. Alsop v. McCartney, 159 W.Va. 829, 228 S.E.2d 278 (1977); however, upon closer examination of the linguistics it appears that the word "intrusive” is a more accurate reflection of what our Court means notwithstanding the use of “obtrusive" in prior cases.

8 . Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972) (statute prohibiting opprobrious words or abusive language); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967) (which prevented employment of "subversives" in state employment); United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967) (federal law restricting employment of subversives); NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963) (barratry statute held void); and, Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960) (statute requiring teachers to reveal all their associational affiliations).