476 F.

2d 187

Kenneth R. MANCUSO, Plaintiff, Appellee,

v.
James L. TAFT, Mayor, et al., Defendants, Appellants.
No. 72-1180.

United States Court of Appeals,

First Circuit.
Argued Sept. 13, 1972.
Decided March 20, 1973.

Peter Palombo, Jr., City Sol., with whom Jeremiah S. Jeremiah, Jr., Asst.
City Sol., was on brief, for appellants.
Ralph J. Gonnella, Providence, R. I., for appellee.
Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit
Judges.
COFFIN, Chief Judge.

Kenneth Mancuso, a full time police officer and classified civil service
employee of the City of Cranston, Rhode Island, filed as a candidate for
nomination as representative to the Rhode Island General Assembly on October
19, 1971. On the same day the Mayor of Cranston began the process of
enforcing Sec. 14.09(c) of the City Home Rule Charter which prohibits
"continuing in the classified service of the city after becoming a candidate for
nomination or election to any public office." Mancuso promptly filed suit in the
district court seeking relief pursuant to 42 U.S.C. Secs. 1981, 1983, and 1988
and asserting jurisdiction under 28 U.S.C. Sec. 1343 and 28 U.S.C. Secs. 2201
and 2202.1 Pursuant to an agreement of the parties, enforcement of the charter
was restrained pending resolution of the issue. The appellant mayor
subsequently advised appellee that he would impose only a tenday suspension
and not dismissal if the suit were unsuccessful. The appellee lost the election.
The district court granted appellee's motion for summary judgment on the
merits, finding Sec. 14.09(c) violative of the First Amendment, 341 F.Supp.
574 (D.R.I.1972). The city officials appealed. Although we choose to analyze

the charter provision in equal protection terms, rather than the First
Amendment terms employed by the district court, we affirm its
judgment.2 Standing
2

At the outset, we acknowledge that our first impression was that while assault
on the charter might be made by other city employees seeking office, appellee
was in a poor position to complain. He is a policeman, an official called upon
for important exercise of discretion, and he ran as a candidate for a partisan
nomination for the position of state representative for the very district in which
he served as policeman. But several independent reasons, which we deem
persuasive, singly and collectively, have led us to the conclusion that appellee's
right to raise this equal protection challenge does not depend on the possibility
of his conduct being properly proscribed by a more narrowly drawn provision.

First, we are of the opinion, for reasons stated subsequently, that the charter
provision significantly affects the exercise of First Amendment rights by
Cranston's public employees. In such circumstances, binding precedentGooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972);
Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L.Ed.2d 22 (1965);
United States v. Raines, 362 U.S. 17, 22, 80 S. Ct. 519, 4 L.Ed.2d 524 (1960);
Goguen v. Smith, 471 F.2d 88 (1st Cir. Dec. 14, 1972); see also Muller v.
Conlisk, 429 F.2d 901 (7th Cir. 1970)-as well as the sound underlying policy of
avoiding the chilling impact of piecemeal adjudication of fundamental rights
require consideration of a facial attack by one affected by the regulation. We
see no reason why this standing rule should change when First Amendment
rights are analyzed in an equal protection context. Grayned v. City of Rockford,
408 U.S. 104, 106-107, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).3

Second, we believe that both candidates and voters may challenge on its face on
equal protection grounds a candidacy restriction because of its impact on
voting rights. A candidate for public office, such as the appellee, is so closely
related to and dependent upon those who wish to vote for him and his litigation
will so vitally affect their rights that courts will relax the rule of practice (which
is designed to assure vibrant representation of the vital interests of non-parties)
and will permit a candidate to raise the constitutional rights of voters. Bullock
v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); Green v. McKeon,
335 F.Supp. 630 (E.D.Mich.1971), aff'd, 468 F.2d 883 (6th Cir. 1972); see
generally Eisenstadt v. Baird, 405 U.S. 438, 444-446, 92 S.Ct. 1029, 31
L.Ed.2d 349 (1972); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14
L.Ed.2d 510 (1965). Moreover, we note that under Sec. 17-14-2, General Laws
of Rhode Island, a candidate must himself be a qualified voter in the district
which he seeks to represent. Hence, in one sense, appellee seeks only to assert

the rights of his own class. That voters and candidates may attack candidacy
restrictions affecting voting rights on their face seems indisputable. Bullock,
supra; Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971);
Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968); Green,
supra; Manson v. Edwards, 345 F.Supp. 719 (E.D.Mich.1972); McKinney v.
Kaminsky, 340 F.Supp. 289 (M.D.Ala.1972); Mogk v. City of Detroit, 335
F.Supp. 698 (E.D.Mich.1971) (three-judge court). In this regard, the dissent's
disagreement seems to be only with the standard, not the propriety, of review.
5

Finally, we believe that in any case, whether or not the regulation implicates
First Amendment or voting rights, one within the terms of a classification may
challenge it facially on equal protection grounds. Although the language of the
Raines rule, 362 U.S. at 21, 80 S.Ct. 519, would seem to cover equal protection
claims, we find that both precedent and sound policy reject its application. We
know of no case in which the Supreme Court has refused to consider a facial
equal protection challenge by one within the affected classification.4 Nor has
the Supreme Court explicitly considered whether the claimant could properly
be subject to a narrower regulation. Rather, in all cases, the Court has simply
analyzed the challenged classification on its face.5 We believe the Court has
eschewed "hard core" analysis in this area because of its invitation to judicial
legislation. Facial consideration forces a court to analyze and approve (or
disapprove) only one regulation-that written by the legislative body. To close
the courthouse door on hard core plaintiffs requires a precise determination
(and necessarily approval) of the permissible outer limits of narrower
legislation. The number of such determinations would be limited only by the
number of differently situated plaintiffs. In contrast, facial adjudication requires
only consideration of the various factors which suggest the possibility of less
drastic alternatives, without forcing specific definition of the permissible limits.
Moreover, unlike disorderly conduct, breach of peace, or other roughly defined
proscriptions, statutory classifications subjected to equal protection challenge
usually leave no question as to the persons subject to the regulation. Individual
adjudications would therefore appear unnecessarily to impose repetitive judicial
scrutiny and possibly intervention. Ironically, then, in equal protection
litigation of broad, unambiguous classifications, judicial restraint would seem
to us to require facial rather than individual adjudication. 6 We therefore hold
that the appellee has standing.

Standard of Scrutiny
6

Appellee's complaint, simply put, is that Cranston has divided its citizenry into
two groups for purposes of candidacy for public office: in one group, all
classified civil servants, who are prohibited from filing as candidates; and, in

the other, all other citizens, free to run for office, subject only to general age
and similar requirements. In determining the propriety of this discrimination,
we must first examine the nature of the interests infringed by Sec. 14.09(c) to
ascertain the proper standard of review.
7

The Supreme Court has tended to use one of two standards for review when
determining whether a particular state action violates the equal protection
clause of the Fourteenth Amendment. For state action concerning economic
regulation and taxation, the Court has employed a relaxed review, upholding
the challenged action if it is sustained by some rational and legitimate state
interest. See Kotch v. Bd. of River Port Pilot Comm'rs, 330 U.S. 552, 67 S.Ct.
910, 91 L.Ed. 1093 (1947). For state action which substantially infringes
fundamental interests, however, the Court has subjected the state action to
stricter scrutiny, requiring the state to show that its action is necessary to
promote a compelling state interest.7

In evaluating candidacy restrictions there are two interlocking interests, both

fundamental, that must be considered. We naturally consider the rights asserted
by the plaintiff in claiming the opportunity to become a candidate for public
office. But whenever a state or city regulates the right to become a candidate for
public office, it also regulates the citizen's right to vote; the person or persons
whose candidacy is affected may be the voters' choice for public official. As
Chief Justice Burger stated in the recent case of Bullock v. Carter, 405 U.S.
134, 143, 92 S.Ct. 849, 856, 31 L.Ed.2d 92 (1972), "[T]he rights of voters and
the rights of candidates do not lend themselves to neat separation; laws that
affect candidates always have at least some theoretical, correlative effect on
voters." Therefore, in order to properly consider the impact of the Cranston
charter provision and hence to arrive at a standard of review, we consider also
the public interest in an unhampered, unconditioned vote, as reflected here by
the voters' interest in having a broad pool of candidates from which to select
their public officials. Because guidance from the Supreme Court on this matter
is more recent and direct, we turn to this latter dimension of the candidacy
problem first.

A. Voting Rights
9

In Bullock, the Chief Justice stated that not every candidate restriction affects
the right to vote sufficiently to require a strict equal protection review of the
restriction. The task of the federal courts is to "examine in a realistic light the
extent and nature of their impact on voters." 405 U.S. at 143, 92 S.Ct. at 856.
The Bullock Court cited two factors which persuaded it to use strict review on a
law which required potential candidates to pay filing fees totalling upwards of

$1000 before they would be placed on the primary ballot: the pool of
candidates available for selection by the voters was substantially diminished
and the impact of the restriction fell on citizens according to their economic
status. Although we face a somewhat different situation from that in Bullock,
we find similar factors here indicating a substantial and significant effect on
voters' rights.
10

We note initially that while in Bullock the filing fees were so large that they
indirectly limited the pool of candidates, here the pool is directly and
substantially limited by a prohibition on the candidacies of a specific class of
people-the public employees of Cranston. As the district court noted, 341
F.Supp. at 576-577, and as other courts have recognized, see, e. g., Bagley v.
Washington Township Hospital District, 65 Cal.2d 499, 55 Cal.Rptr. 401, 421
P.2d 409 (1966), the number of citizens who find employment in the public
sector has grown tremendously over the years.8 To prohibit these citizens from
seeking public office constitutes a substantial contraction of the potential
candidacy pool.9 Moreover, this significant number of people who are covered
by the Cranston rule are deterred from seeking office in a very effective
manner. Cranston does not have a system which makes it easy for the public
employee to accommodate his interest in his job and his interest in seeking
elective office. Rather, Sec. 14.09(c), by requiring resignation "after becoming
a candidate for nomination or election" necessitates an extremely difficult
decision by the potential candidate: he must either give up his public job or he
must give up his candidacy.

11

Secondly, the Cranston charter excludes a specific group with unique

qualifications for public office. City employees have made government their
daily work. They see the work of government within their department and as
their department deals with the public and other parts of government, local,
county, state, and national. They ought to be able to pinpoint problems and
formulate solutions much more effectively than many other citizens. The
experience and insight garnered from day-to-day grappling with the
bureaucracy could well make these individuals particularly attractive to the
voters. For these reasons, then, we find that the fundamental interest of the
right to vote is significantly affected by Sec. 14.09(c) of the Cranston charter
and that therefore strict equal protection review must be applied.10B. First
Amendment Rights

12

We now inquire whether the interest of the individual in running for public
office is an interest protected by the First Amendment, so that any law which
significantly infringes that interest must be given strict review.11 The Supreme
Court has never directly decided this point. However, Williams v. Rhodes,

supra, strongly suggests that the activity of seeking public office is among
those protected by the First Amendment. Moreover, two state supreme courts
have found, in facially invalidating flat bans on public employee candidacies
challenged by deputy sheriffs, that the right to run for office is a First
Amendment right. Minielly v. State, 242 Or. 490, 411 P.2d 69 (1966) (en
banc); Kinnear v. City and County of San Francisco, 61 Cal.2d 341, 38 Cal.
Rptr. 631, 392 P.2d 391 (1964) (en banc). See also Fort v. Civil Service
Comm'n, 61 Cal.2d 331, 38 Cal.Rptr. 625, 392 P.2d 385 (1964) (en banc); DeStefano v. Wilson, 96 N.J.Super. 592, 233 A.2d 682 (1967). We come to the
same conclusion.
13

The right to run for public office touches on two fundamental freedoms:
freedom of individual expression and freedom of association. Freedom of
expression guarantees to the individual the opportunity to write a letter to the
local newspaper, speak out in a public park, distribute handbills advocating
radical reform, or picket an official building to seek redress of grievances. All of
these activities are protected by the First Amendment if done in a manner
consistent with a narrowly defined concept of public order and safety. See Cox
v. Louisiana, 379 U.S. 536, 554-555, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). The
choice of means will likely depend on the amount of time and energy the
individual wishes to expend and on his perception as to the most effective
method of projecting his message to the public. But interest and commitment
are evolving phenomena. What is an effective means for protest at one point in
time may not seem so effective at a later date. The dilettante who participates in
a picket line may decide to devote additional time and resources to his
expressive activity. As his commitment increases, the means of effective
expression changes, but the expressive quality remains constant. He may decide
to lead the picket line, or to publish the newspaper. At one point in time he may
decide that the most effective way to give expression to his views and to get the
attention of an appropriate audience is to become a candidate for public officemeans generally considered among the most appropriate for those desiring to
effect change in our governmental systems. He may seek to become a candidate
by filing in a general election as an independent12 or by seeking the nomination
of a political party. And in the latter instance, the individual's expressive
activity has two dimensions: besides urging that his views be the views of the
elected public official, he is also attempting to become a spokesman for a
political party whose substantive program extends beyond the particular office
in question. But Cranston has said that a certain type of its citizenry, the public
employee, may not become a candidate and may not engage in any campaign
activity that promotes himself as a candidate for public office. Thus the city has
stifled what may be the most important expression an individual can summon,
namely that which he would be willing to effectuate, by means of concrete

public action, were he to be selected by the voters.

14

It is impossible to ignore the additional fact that the right to run for office also
affects the freedom to associate. In Williams v. Rhodes, supra, the Court used
strict review to invalidate an Ohio election system that made it virtually
impossible for third parties to secure a place on the ballot. The Court found that
the First Amendment protected the freedom to associate by forming and
promoting a political party and that that freedom was infringed when the state
effectively denied a party access to its electoral machinery. The Cranston
charter provision before us also affects associational rights, albeit in a slightly
different way. An individual may decide to join or participate in an
organization or political party that shares his beliefs. He may even form a new
group to forward his ideas. And at some juncture his supporters and fellow
party members may decide that he is the ideal person to carry the group's
standard into the electoral fray. To thus restrict the options available to political
organization as the Cranston charter provision has done is to limit the
effectiveness of association; and the freedom to associate is intimately related
with the concept of making expression effective. See Williams v. Rhodes, 393
U.S. 23 at 41-42, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968) (Harlan, J., concurring); cf.
NAACP v. Button, 371 U.S. 415, 429-431, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963).
Party access to the ballot becomes less meaningful if some of those selected by
party machinery to carry the party's programs to the people are precluded from
doing so because those nominees are civil servants.

15

Whether the right to run for office is looked at from the point of view of
individual expression or associational effectiveness, wide opportunities exist for
the individual who seeks public office. The fact of candidacy alone may open
previously closed doors of the media. The candidate may be invited to discuss
his views on radio talk shows; he may be able to secure equal time on television
to elaborate his campaign program; the newspapers may cover his candidacy;
he may be invited to debate before various groups that had theretofore never
heard of him or his views. In short, the fact of candidacy opens up a variety of
communicative possibilities that are not available to even the most diligent of
picketers or the most loyal of party followers. A view today, that running for
public office is not an interest protected by the First Amendment, seems to us
an outlook stemming from an earlier era when public office was the preserve of
the professional and the wealthy.13 Consequently we hold that candidacy is
both a protected First Amendment right and a fundamental interest. Hence any
legislative classification that significantly burdens that interest must be
subjected to strict equal protection review.14

16

Our conclusion that Sec. 14.09(c) of the Cranston charter must receive strict

equal protection scrutiny is made with full cognizance of the city's assertion
that United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed.
754 (1947), in which the Supreme Court upheld a provision of the federal
Hatch Act, requires a more relaxed "reasonableness" standard of review. We
deem Mitchell not controlling on this question for several reasons. First, and
most important, is the fact that the Mitchell Court was not faced with, and did
not rule on, an equal protection challenge. Indeed, until the Supreme Court's
decision in Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954),
it was not clear that the equal protection clause was fully applicable, through
the Fifth Amendment's due process clause, to legislation such as the provision
of the Hatch Act which was considered in Mitchell. Moreover, although the
Court, in response to the petitioner's First, Fifth, Ninth, and Tenth Amendment
claims considered rights of expression and political activity, there was no
discussion of the impact of the restrictions on voting rights.
17

Second, we note that even in the First Amendment area, the Mitchell case may
have been drained of its vitality by the development of constitutional doctrine in
the past twenty-five years. As the district court pertinently observed, 341
F.Supp. at 577-581, the expanded use of the overbreadth doctrine in evaluating
statutes which touch areas protected by the First Amendment casts serious
doubt on the validity of employing a "reasonableness" standard for review of
provisions regulating the expressive activity of public employees. See Hobbs v.
Thompson, 448 F.2d 456, 471-475 (5th Cir. 1971); Fort v. Civil Service
Comm'n, supra; National Ass'n of Letter Carriers v. United States Civil Service
Comm'n, 346 F.Supp. 578 (D.D. C.1972), prob. juris. noted, 409 U.S. 1058, 93
S.Ct. 560, 34 L.Ed.2d 510 (Dec. 11, 1972). But see Broadrick v. Oklahoma,
338 F.Supp. 711, 716 (W.D.Okl.1972), prob. juris. noted, 409 U.S. 1058, 93
S.Ct. 550, 34 L.Ed.2d 510 (Dec. 11, 1972). To the extent, moreover, that the
Mitchell Court relied on the notion that public employment is a privilege rather
than a right, and that the constitutional validity of legislative regulation turns on
proper pigeon-holing of the rights and the privileges, 330 U.S. at 99 n. 34, 67
S.Ct. 556, its precedential value is even more questionable. Since Mitchell, the
Court, in an unbroken line of decisions, has abolished the right-privilege
distinction. See Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d
1460 (1958); Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20
L. Ed.2d 811 (1968); Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29
L. Ed.2d 534 (1971). See generally Van Alstyne, The Demise of the RightPrivilege Distinction in Constitutional Law, 81 Harv.L.Rev. 1439 (1968). In
addition, we note factual distinctions between Mitchell and the present case
which we deem of legal significance. Mitchell treated the United States Hatch
Act where appellee challenges the charter provision of the city of Cranston and
hence strict stare decisis is not involved, cf. Flood v. Kuhn, 407 U.S. 258, 92

S.Ct. 2099, 32 L.Ed.2d 728 (1972); the Hatch Act provision prohibited only
partisan political activity while the Cranston charter covers both partisan and
nonpartisan activity; and the provision at bar specifically limits the right to
become a candidate for public office while in Mitchell the Court was faced only
with restrictions on the arguably less significant right of routine political
participation. Finally, we note that the constitutionality of the Hatch Act and an
analogous state statute is presently before the Court. National Ass'n of Letter
Carriers and Broadrick, supra.
Interest of the Community
18

In proceeding to the second stage of active equal protection review, however,

we do see some contemporary relevance of the Mitchell decision. National
Ass'n of Letter Carriers, supra. In order for the Cranston charter provision to
withstand strict scrutiny, the city must show that the exclusion of all
government employees from candidacy is necessary to achieve a compelling
state interest. Kramer v. Union Free School District, 395 U.S. 621, 627, 89
S.Ct. 1886, 23 L.Ed.2d 583 (1969). And, as stated in Mitchell and other cases
dealing with similar statutes, see Wisconsin State Employees, supra; Broadrick,
supra, government at all levels has a substantial interest in protecting the
integrity of its civil service. It is obviously conceivable that the impartial
character of the civil service would be seriously jeopardized if people in
positions of authority used their discretion to forward their electoral ambitions
rather than the public welfare. Similarly if a public employee pressured other
fellow employees to engage in corrupt practices in return for promises of postelection reward, or if an employee invoked the power of the office he was
seeking to extract special favors from his superiors, the civil service would be
done irreparable injury. Conversely, members of the public, fellow-employees,
or supervisors might themselves request favors from the candidate or might
improperly adjust their own official behavior towards him. Even if none of
these abuses actually materialize, the possibility of their occurrence might
seriously erode the public's confidence in its public employees. For the
reputation of impartiality is probably as crucial as the impartiality itself; the
knowledge that a clerk in the assessor's office who is running for the local
zoning board has access to confidential files which could provide "pressure"
points for furthering his campaign is destructive regardless of whether the clerk
actually takes advantage of his opportunities. For all of these reasons we find
that the state indeed has a compelling interest in maintaining the honesty and
impartiality of its public work force.

19

We do not, however, consider the exclusionary measure taken by Cranston-a

flat prohibition on office-seeking of all kinds by all kinds of public employees-

as even reasonably necessary to satisfaction of this state interest. Bullock v.

Carter, 405 U.S. at 144, 92 S.Ct. 849. As Justice Marshall pointed out in Dunn
v. Blumstein, 405 U.S. 330, 343, 92 S.Ct. 995, 1003, 31 L.Ed.2d 274 (1972) "
[s]tatutes affecting constitutional rights must be drawn with 'precision'. NAACP
v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); United
States v. Robel, 389 U.S. 253, 265, 88 S.Ct. 419, 19 L.Ed. 2d 508 (1967)". For
three sets of reasons we conclude that the Cranston charter provision pursues its
objective in a far too heavy-handed manner and hence must fall under the equal
protection clause. First, we think the nature of the regulation-a broad
prophylactic rule-may be unnecessary to fulfillment of the city's objective.
Second, even granting some sort of prophylactic rule may be required, the
provision here prohibits candidacies for all types of public office, including
many which would pose none of the problems at which the law is aimed. Third,
the provision excludes the candidacies of all types of public employees, without
any attempt to limit exclusion to those employees whose positions make them
vulnerable to corruption and conflicts of interest.
20

As to approaches less restrictive than a prophylactic rule, there exists the device
of the leave of absence. 15 Some system of leaves of absence would permit the
public employee to take time off to pursue his candidacy while assuring him his
old job should his candidacy be unsuccessful. Moreover, a leave of absence
policy would eliminate many of the opportunities for engaging in the
questionable practices that the statute is designed to prevent. While
campaigning, the candidate would feel no conflict between his desire for
election and his publicly entrusted discretion, nor any conflict between his
efforts to persuade the public and his access to confidential documents. But
instead of adopting a reasonable leave of absence policy, Cranston has chosen a
provision that makes the public employee cast off the security of hard-won
public employment should he desire to compete for elected office.

21

The city might also promote its interest in the integrity of the civil service by
enforcing, through dismissal, discipline, or criminal prosecution, rules or
statutes that treat conflict of interests, bribery, or other forms of official
corruption. By thus attacking the problem directly, instead of using a broad
prophylactic rule, the city could pursue its objective without unduly burdening
the First Amendment rights of its employees and the voting rights of its
citizens. Last term in Dunn v. Blumstein, the Supreme Court faced an
analogous question when the State of Tennessee asserted that the interest of
"ballot box purity" justified its imposition of one year and three month
residency requirements before a citizen could vote. Justice Marshall stated,
inter alia, that Tennessee had available a number of criminal statutes that could
be used to punish voter fraud without unnecessary infringement on the

newcomer's right to vote. Id. at 353-354, 92 S.Ct. 995.16 Similarly, it appears

from the record in this case that the Cranston charter contains some provisions
that might be used against opportunistic public employees.17
*****
22
***
23
24

Even if some sort of prophylactic rule is necessary, we cannot say that

Cranston has put much effort into tailoring a narrow provision that attempts to
match the prohibition with the problem. The charter forbids a Cranston public
employee from running for any office, anywhere. The prohibition is not limited
to the local offices of Cranston, but rather extends to statewide offices and even
to national offices.18 It is difficult for us to see that a public employee running
for the United States Congress poses quite the same threat to the civil service as
would the same employee if he were running for a local office where the
contacts and information provided by his job related directly to the position he
was seeking, and hence where the potential for various abuses was greater. Nor
does the Cranston charter except the public employee who works in Cranston
but aspires to office in another local jurisdiction, most probably his town of
residence. Here again the charter precludes candidacies which can pose only a
remote threat to the civil service. Finally, the charter does not limit its
prohibition to partisan office-seeking, but sterilizes also those public employees
who would seek nonpartisan elective office. The statute reviewed in Mitchell
was limited to partisan political activity, and since that time other courts have
found the partisan-nonpartisan distinction a material one. See Kinnear, supra;
Wisconsin State Employees, supra; Gray v. Toledo, supra. While the line
between nonpartisan and partisan can often be blurred by systems whose true
characters are disguised by the names given them by their architects, it seems
clear that the concerns of a truly partisan office and the temptations it fosters
are sufficiently different from those involved in an office removed from regular
party politics to warrant distinctive treatment in a charter of this sort.

25

The third and last area of excessive and overinclusive coverage of the Cranston
charter relates not to the type of office sought, but to the type of employee
seeking the office. As Justice Douglas pointed out in his dissent in Mitchell,
330 U.S. at 120-126, 67 S.Ct. 556, restrictions on administrative employees
who either participate in decision-making or at least have some access to
information concerning policy matters are much more justifiable than
restrictions on industrial employees, who, but for the fact that the government
owns the plant they work in, are, for purposes of access to official information,
identically situated to all other industrial workers. Thus, a worker in the

Philadelphia mint could be distinguished from a secretary in an office of the

Department of Agriculture; so also could a janitor in the public schools of
Cranston be distinguished from an assistant comptroller of the same city. A
second line of distinction that focuses on the type of employee is illustrated by
the cases of Kinnear and Minielly, supra. In both of these cases a civil service
deputy decided to run for the elected office of sheriff. The courts in both cases
felt that the no-candidacy laws in question were much too broad and indicated
that perhaps the only situation sensitive enough to justify a flat rule was one in
which an inferior in a public office electorally challenged his immediate
superior. Given all these considerations, we think Cranston has not given
adequate attention to the problem of narrowing the terms of its charter to deal
with the specific kinds of conflict-of-interest problems it seeks to avoid.
26

We also do not find convincing the arguments that after-hours campaigning

will drain the energy of the public employee to the extent that he is incapable of
performing his job effectively and that inevitable on-the-job campaigning and
discussion of his candidacy will disrupt the work of others. Although it is
indisputable that the city has a compelling interest in the performance of
official work, the exclusion is not well-tailored to effectuate that interest.
Presumably the city could fire the individual if he clearly shirks his
employment responsibilities or disrupts the work of others. Also, the efficiency
rationale common to both arguments is significantly underinclusive. It applies
equally well to a number of non-political, extracurricular activities that are not
prohibited by the Cranston charter. Finally, the connection between after-hours
campaigning and the state interest seems tenuous; in many cases a public
employee would be able to campaign aggressively and still continue to do his
job well.

27

Since Sec. 14.09(c) of the Cranston charter is not necessary to further any
compelling state interest, it cannot be upheld under the equal protection clause.
The judgment of the District Court is affirmed insofar as the District Court
granted relief against Sec. 14.09(c) of the charter and part 3(c) of Civil Service
Rule X.

28

CAMPBELL, Circuit Judge (dissenting).

29

I respectfully dissent from the Court's opinion.

30

I am completely unable to see how the plaintiff, a police officer, can be said to
have been denied equal protection of the law as against persons not in the
classified service of the City of Cranston. The City (as I believe my brothers

would concede) had a legitimate interest, even a compelling one, in keeping its
law enforcement personnel (at least) out of local politics. Thus, given the nature
of his office, he was not improperly treated. That other civil servants holding
less sensitive offices may have a stronger case (the point largely relied upon by
the court) seems wholly irrelevant to the issue here, which is simply whether or
not this plaintiff was denied rights guaranteed to him by the Constitution.
31

This is not a case of irrational underinclusiveness-as it would be, for example,

had uniformed police been barred from candidacy but detectives allowed to run.
See Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33
L.Ed.2d 212 (1972); Grayned v. City of Rockland, 408 U.S. 104, 92 S.Ct. 2294,
33 L.Ed.2d 222 (1972); Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86
L. Ed. 1655 (1942). Being placed in a class drawn so as to exclude others
similarly situated would be a denial of equal protection since one is subjected to
burdens from which others are irrationally excused.

32

But it does not necessarily follow that being placed in a class which may also
include persons not identically situated, gives one constitutional cause for
complaint. The others' misfortune may, as here, constitute no conceivable
unfairness to the person legitimately classified.1 Plaintiff (and what might be
considered his sub-class, law enforcement personnel) would seem to have no
right to a windfall simply because we speculate that others within the classified
service (librarians, if any, etc.) might have better reason to object to being
barred from politics. I do not see how their hypothetical complaints-which are
not before us-demonstrate that plaintiff was in any respect denied equal
protection.2

33

In Collins v. Texas, 223 U.S. 288, 295-296, 32 S.Ct. 286, 288, 56 L.Ed. 439
(1912), where an unregistered osteopath challenged state registration laws for
doctors, Mr. Justice Holmes said, "On these facts we are of the opinion that the
plaintiff in error fails to show that the statute inflicts any wrong upon him
contrary to the 14th Amendment. . . . If he has not suffered, we are not called
upon to speculate upon other cases, or to decide whether the followers of
Christian Science or other people might in some event [ever] have cause to
complain." See United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 4
L.Ed.2d 524 (1960).

34

Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) is
likewise a case of arbitrary underinclusiveness (contraception could not be
denied to the single but allowed to the married). Baird's being allowed to raise
the rights of the unmarried raises a different issue-analogous to the present
plaintiff's right, which I do not question, to raise the rights of those who might

vote for him.

35

Thus I would limit the inquiry to whether a civil servant like the plaintiff can
constitutionally be barred by law from seeking political office of the type
plaintiff has been seeking; and I would hold that he can be so barred, just as
judges may appropriately be barred from politics.

36

Admittedly if the case is analyzed on First Amendment rather than equal

protection grounds, there is precedent for an "overbreadth" approach. To the
rule that a plaintiff may not assert the rights of others, Raines, above, 362 U.S.
at 22, 80 S.Ct. 519 notes the exception in cases of "freedom of speech." Thus a
statute burdening freedom of speech may properly be attacked on grounds of
overbreadth by one who might be regulated by a more narrowly drawn statute.
Goguen v. Smith, 471 F.2d 88 (1st Cir. 1972). The strongest statements that
political candidacy may be a First Amendment right are in Williams v. Rhodes,
393 U.S. 23, 89 S.Ct. 5, 21 L. Ed.2d 24 (1968). But as recently as Bullock v.
Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972), the Court has limited
its analysis of candidacy restrictions to equal protection grounds. It is by no
means yet clear that every restriction on candidacy is such a burden on
"freedom of speech" as to warrant First Amendment (much less overbreadth)
analysis. Free speech, in its direct and usual sense, is presumed to facilitate the
working of free government. I question the majority's implicit assumption that
the political candidacy of one in the full-time employ of the taxpayers is
entitled to the benefit of the same presumption. Simply because political
candidacy has an ultimate effect upon free speech does not mean that it is free
speech, or that it reflects values which are in all respects indistinguishable.

37

In the present case, we deal with several interests, all of importance to the
working of free government: the right of a citizen to seek office (and of voters
to elect him), and the right of the body politic to control, and to ensure the
faithfulness, of those in its employ. I see no constitutional reason to exalt the
one over the other, and hence I see no reason to favor overbreadth analysis in
this situation. By so doing we judicially establish a priority as to which the
Constitution is silent.

38

For the same reason that I do not favor overbreadth analysis, I question
application of the "compelling interest" standard. Bullock v. Carter, above,
indicates that that standard is applicable where an invidious economic burden is
placed upon an otherwise qualified candidate. It does not go so far as to apply
the standard to non-invidious restrictions based upon reasonable civic notions
of eliminating politics from the civil service. 3

39

Here, the compelling standard is immaterial so long as we focus upon plaintiff's

case; even under that test, the City was plainly warranted in restricting the
candidacy of police officers. Yet my brothers are assisted by one aspect of the
standard when they come to deal with the putative "others" within the classnon-law enforcement officers. They argue that since the challenged legislation
can stand only to the extent there is a "compelling interest", the City must
follow the least restrictive alternative when regulating all its civil servants. I
would hold, instead, that normal equal protection analysis, based upon
determining whether or not the charter provision has a rational basis, should be
applied.

40

I would reverse the decision of the district court and dismiss the complaint.

Mancuso also sought relief against enforcement of Sec. 14.09(f) of the city
charter, which prohibits "making directly or indirectly if a member of the
classified service any contribution to the campaign funds of any political
organization or candidate for public office or taking any part in the
management of any political organization or in the conduct of any political
campaign further than in the exercise of the rights of a citizen to express his
opinion and to cast his vote." This city challenged appellee's standing to attack
subsection (f) since it had neither attempted nor threatened to enforce that
section against Mancuso. See Wisconsin State Employees Ass'n v. Wisconsin
Natural Resources Bd., 298 F. Supp. 339, 344-345 (W.D.Wis.1969)
[hereinafter Wisconsin State Employees]. Mancuso argued that since he had
violated the terms of that subsection and since the city had already "noticed"
his conduct by attempting to enforce a related provision against him, he should
be able to attack subsection (f). The district court ruled Mancuso had standing
and proceeded to find subsection (f) unconstitutional. Whether or not the
actions of the parties have so crystallized as to present a justiciable controversy
as to subsection (f) is a very close question. Laird v. Tatum, 408 U.S. 1, 92
S.Ct. 2318, 33 L.Ed.2d 154 (1972); Epperson v. Arkansas, 393 U.S. 97, 89
S.Ct. 266, 21 L.Ed.2d 228 (1968); Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct.
1316, 12 L.Ed.2d 377 (1964)
However, another factor has made it unnecessary for us to decide that difficult
issue. At oral argument the city represented to this court that subsection (f) is
designed to cover the activities of employees who participate in the campaigns
of other people and that only subsection (c) is intended to cover the activities of
the candidate employee. While not as authoritative as an official construction of
the statute, this clarification has persuaded us that Mancuso should not have
been allowed to attack subsection (f). The city's interpretation is reasonable. It

makes sense out of both subsections and renders neither surplusage. The
interpretation is bolstered by the existence of another subsection, (e),
proscribing the solicitation of funds, which stands in the same posture as (f), i.
e., a more specific functional prohibition, which is necessarily embraced,
insofar as candidates are concerned, by the flat ban of (c). It seems entirely
reasonable to conclude that these narrower controls are not designed for the
major offender. In addition, the city's action in this case, threatening
enforcement only of (c), is consistent with this interpretation. These factors,
taken together, render Mancuso's challenge to subsection (f) too speculative for
federal judicial resolution at this time.
Appellee also challenged, and the district court invalidated, the city's Civil
Service Rule X, parts 3(c) and (f) which implement the charter provision. For
the reasons just noted, we do not adjudicate the validity of part 3(f). We see no
barrier, however, to our consideration of the challenge to both subsection (c) of
the charter and part 3(c) of the Rules, although for convenience we refer
hereafter only to the charter provision. Since the appellee clearly has a cause of
action under 42 U.S.C. Sec. 1983, we need not consider whether he also could
have proceeded under the other provisions he invoked.
2

The appellee below attacked the Cranston charter provision on both First
Amendment and equal protection grounds. We recognize that some basic issues
must be faced under either analysis but choose to review the provision under
the equal protection clause. We do this because Sec. 14.09(c) of the charter
treats the right to run for public office, a right implicating not only First
Amendment principles but also the principles established in the cases dealing
with the public's right to an unfettered and meaningful vote, cases usually
framed in an equal protection context. See Bullock v. Carter, 405 U.S. 134, 92
S.Ct. 849, 31 L.Ed.2d 92 (1972); Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5,
21 L.Ed.2d 24 (1968). As our discussion of the First Amendment interests
indicates, we would reach the same result were we to use direct First
Amendment analysis

We do not read Judge Campbell's dissent as denying the existence of a First

Amendment right here, or the charter provision's serious impact on the exercise
of that right, and thus appellee's standing to mount a facial attack. Rather his
balancing of the interests of municipality and citizen indicates to us an
adjudication of the merits

In Wade v. Wilson, 396 U.S. 282, 90 S.Ct. 501, 24 L.Ed.2d 470 (1970), the
Court refused to consider an equal protection challenge to a court rule
furnishing co-defendants only one transcript to be shared on appeal. Although
the Court cited Raines, its reasoning was that claimant, who had been loaned a

separate copy by the State Attorney General, could not attack the classification
which had not adversely affected him. Id. at 286, 90 S.Ct. 501
Collins v. Texas, 223 U.S. 288, 32 S.Ct. 286, 56 L.Ed. 439 (1912), from which
the dissent quotes language suggestive of a hard-core exception, seems to us to
represent only the Wade principle. There an osteopath challenged on due
process and equal protection grounds a Texas statute making criminal the
practicing of medicine for money without having registered with the
appropriate Board. The Court held that his challenge to the statutory definition
of medicine need not be considered since he had never tried to get a license
which the Court assumed would have been granted had he submitted his
professional diploma. The case thus seems to stand for the proposition that one
arguably eligible for statutory benefits may not challenge the statute as
unconstitutional until he has sought and been denied the benefits, i. e., is within
the deprived class. See Morf v. Bingaman, 298 U.S. 407, 413, 56 S.Ct. 756, 80
L.Ed. 1245 (1936); Hendrick v. Maryland, 235 U.S. 610, 621, 35 S.Ct. 140, 59
L.Ed. 385 (1915); Standard Stock Food Co. v. Wright, 225 U.S. 540, 550, 32
S.Ct. 784, 56 L.Ed. 1197 (1912).
5

See, e. g., Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655
(1942); Railway Express Agency v. New York, 336 U.S. 106, 69 S.Ct. 463, 93
L.Ed. 533 (1949); Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461,
99 L.Ed. 563 (1955); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed.
891 (1956); Morey v. Doud, 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed.2d 1485
(1957); McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393
(1961); Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620
(1966); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491
(1970); Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231
(1971); James v. Strange, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972);
Eisenstadt v. Baird, supra. Even the Chief Justice's lone dissent in Baird was
only on the grounds that the respondent there was not within the affected class,
i. e., authorized distributors, see n. 4 supra, not on the grounds that one within
the class but possibly subject to less broad rules cannot complain
We note that the Court has recently permitted and upheld a facial attack on the
Texas abortion statute based on due process grounds despite a dissenting
member's objection that the plaintiff may not have had standing to challenge
the statute on its face since she may have been, as of the time of the filing of
the complaint, within her third trimester as to which the Court permitted
regulation even to the point of prohibition. Roe v. Wade, 410 U.S. 113, 93 S.Ct.
705, 35 L.Ed.2d 147 (U.S. Jan. 22, 1973). Since the Court there used the same
analysis we employ here, i. e., whether the regulation which affects a
fundamental interest is narrowly drawn to promote a compelling state interest,

we deem the facial consideration in Doe supportive of our reading of past equal
protection cases.
6

Judge Campbell's suggestion of a standing rule in equal protection cases

dependent upon the nature of the attack-i. e., allowing a hard core plaintiff to
challenge if his attack is based on underinclusiveness but denying standing
generally if his claim is that the prohibition is overinclusive-seems to us,
wholly apart from the prudential reasons noted above and the difficulty of
apply his formula for overinclusiveness challenges, to be without authority and
an unnecessary straitjacketing of the court and the parties. As to the authorities,
Grayned, supra, involved an overinclusiveness claim-that the picketing
ordinance banned peaceful as well as non-peaceful, non-labor picketing-raised
by an admitted hard core offender. 408 U.S. at 106, 92 S.Ct. 2294. Skinner was
admittedly decided on underinclusiveness grounds, but came to the Court-and
won the concurrence of the Chief Justice-primarily on overinclusiveness claims
(not all three-time thieves are parents of potentially dangerous offspring),
though phrased in due process terms. Barid was explicitly decided on both
over- and underinclusiveness, 405 U.S. at 450-454, 92 S.Ct. 1029. See also
United States v. Bishop, 469 F.2d 1337 (1st Cir. 1972)
Skinner and Baird, moreover, reveal the problems of practicality of the
proposal. Many cases involve both underand overinclusiveness claims. Concern
for mere judicial efficiency, not to mention fairness to the parties (including the
affected government) would dictate adjudication of all of an individual's claims
at once. This case is an example. Although we find overinclusiveness problems
regarding the integrity rationale-the ban covering many whose candidacy
would pose no danger to the system's honesty-we see the charter provision as
underinclusive in relation to the efficiency rationale-not covering many other
outside activities which could also drain employee energy and distract coworkers. Were the appellee to be limited to an underinclusive complaint, the
municipality would be deprived of its strongest defense, its compelling interest
in the integrity of its civil service. Moreover, had appellee known that he was to
be so limited, he might have been able to show that others working for the city,
but designated by Civil Service Rule XV as being in the unclassified servicesuch as independent real estate appraisers, engineers, management consultants,
and even political appointees-exercised discretionary functions and possessed
confidential information, and hence presented risks of abuse of power similar to
those posed by the employees subject to the ban. We do not see the gain in so
circumscribing a plaintiff, a defendant, or, for that matter, a court.

It is not entirely clear whether the allegation of any infringement of a

fundamental interest triggers strict review or whether the infringement must be
substantial before the statute requires more than a "reasonableness" review.

Compare Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 856, 31 L.Ed.2d
92 (1972) ["Of course, not every limitation or incidental burden on the exercise
of voting rights is subject to a stringent standard of review", citing McDonald v.
Board of Election, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969)] with
Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506
(1964) ["Especially since the right to exercise the franchise in a free and
unimpaired manner is preservative of other basic civil and political rights, any
alleged infringement of the right of citizens to vote must be carefully and
meticulously scrutinized."] Since a substantiality requirement might be read
into the word infringement, the matter may be of no moment. Nevertheless, we
need not decide this issue because we find that, after considering the matter
before us, there is here a substantial burden on both voting and First
Amendment rights sufficient to invoke the rigor of strict equal protection
review
8

According to latest census figures, there are approximately 2,700,000 federal

employees and 9,900,000 employees of state and local government, excluding
personnel of the armed forces. U.S. Bureau of the Census, Statistical Abstract
of the United States 221 (1971)

We do not know if the number of potential candidates excluded by the

Cranston charter provision would be as large as the number excluded by the
filing fees required by a statute like that considered in Bullock. The Court there
found that the fees were so large that many candidates would be effectively
precluded from access to the ballot. 405 U.S. at 143, 92 S.Ct. 849. On the other
hand, the Chief Justice noted that undoubtedly some candidates of modest
means could secure ballot positions by soliciting contributions from friends and
supporters. In contrast, because of the flat exclusion of civil servants this
charter may effectuate a greater proportional contraction of the candidacy pool.
Regardless of how one compares the scope of the exclusion here with that in
Bullock, however, we conclude that the exclusion in the present case is a
substantial one

10

The dissent, although not denying that the candidacy ban here effects a
substantial contraction of the potential candidacy pool and thus of voter choice,
focuses upon the lack of an "invidious economic" burden, such as that in
Bullock, in finding strict scrutiny inapplicable. Although the Court in Bullock
considered the economic impact as one of the two factors triggering strict
scrutiny in that case, it did not say, and we do not believe that it could have
meant, that only economic restrictions with a substantial effect upon voter
choice demand rigorous review. In Williams v. Rhodes, supra, the Supreme
Court found that state statutes restricting minority party access to the ballot
heavily burdened the right to vote and thus required strict equal protection

review. We note that other courts have held that durational residency, Mogk v.
City of Detroit, 335 F.Supp. 698 (E.D. Mich.1971) (three-judge court);
McKinney v. Kaminsky, 340 F.Supp. 289 (M.D. Ala.1972); Gangemi v.
Rosengard, 44 N.J. 166, 207 A.2d 665 (1965), and age restrictions, Manson v.
Edwards, 345 F. Supp. 719 (E.D.Mich.1972), on candidacy require strict
scrutiny even without consideration of whether another fundamental interest,
such as the right to travel, was involved
11

In Williams v. Rhodes, supra, the Court held that First Amendment rights were
"fundamental" for purposes of equal protection review. See also Police
Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212
(1972)
As noted above, the Supreme Court in Bullock stated that only candidate
restrictions with substantial impact on voters would receive the strict review
appropriate for legislation which affects the right to vote. We need not decide
whether a similar threshold determination is required with regard to an
individual's right to run for office, since we find that the provision here at issue
imposes a severe hurdle to appellee's candidacy and hence to his exercise of his
First Amendment rights. As noted above, it does not merely present the wouldbe candidate with minor requirements before being entitled to a place on the
ballot; it forces the public employee to make an all-or-nothing choice between
his job and his candidacy.

12

While independent candidates may often be unsuccessful in partisan elections,

we take judicial notice of the fact that local elections are often nonpartisan in
nature, and that even in partisan contests, independent candidates do
occasionally win

13

Thus we cannot concur with the court in Johnson v. State Civil Service Dept.,
280 Minn. 61, 157 N.W.2d 747 (1968), when it states that public office is
usually sought "for the purpose of earning a living or advancing one's political
career."

14

The appellant refers to Snowden v. Hughes, 321 U.S. 1, 7, 64 S.Ct. 397, 400,
88 L.Ed. 497 (1944), for the proposition that "[t]he right to become a candidate
for state office, like the right to vote for the election of state officers . . . is a
right or privilege of state citizenship, not of national citizenship." In Snowden,
the plaintiff sought relief under the Fourteenth Amendment and the Civil
Rights Act, claiming that election officials had improperly certified the results
of a primary election in which he had been a candidate. The part of the opinion
quoted dealt with the interpretation of the first clause of the Fourteenth
Amendment and ruled that the right to become a candidate for state office was

not a privilege or immunity under the national Constitution. Proceeding to

subsequent clauses of the Amendment, the Court found that an equal protection
claim could not be grounded in the statutory classification made by the
legislature, for the legislation on its face was harmless; rather it held that any
denial of equal protection in the case before it had to be proved by showing
arbitrary application of the statute by the election board. Thus the Court did not
reach the question of whether the First Amendment, through the Fourteenth
Amendment, protected the right to run for office against unjustified legislative
classifications. A second reason why Snowden is not controlling is that it is a
product of an outlived theory of the division of federal and state
responsibilities. The very quote which speaks of the right to run for state office
also speaks of the right to vote in state elections, and cites Breedlove v. Suttles,
302 U.S. 277, 283, 58 S.Ct. 205, 82 L.Ed. 252 (1937) as support. But in 1966
the Supreme Court, in Harper v. Virginia Bd. of Elections, 383 U.S. 663, 669,
86 S.Ct. 1079, 16 L. Ed.2d 169 overruled Breedlove, holding that the
Constitution protected the right to vote in state elections from the state's
imposition of a poll tax. Finally, the charter provision in question in this case is
not limited to the right to run for state office but also prohibits candidacies for
national offices
15

See Gray v. City of Toledo, 323 F.Supp. 1281 (N.D.Ohio 1971); Wisconsin
State Employees, supra

16

Cf. Schneider v. State, 308 U.S. 147, 164, 60 S.Ct. 146, 84 L.Ed. 155 (1939)
(fear of fraudulent solicitations cannot justify permit system since "frauds may
be denounced as offenses and punished by law.")

17

The following practices are prohibited by section 14.09 of the city charter:
"(b) wilfully or corruptly making any false statement, certificate, mark, grade,
rating or report to any examination or test held or certification or appointment
made under the provisions of this chapter or in any manner committing or
attempting to commit any fraud preventing the impartial execution of such
provisions or the rules and regulations established thereunder.
(d) giving, rendering or paying any money, service or other valuable thing for,
or account of or in connection with an appointment, promotion or proposed
appointment or promotion."

18

See Stack v. Adams, 315 F.Supp. 1295 (N.D.Fla.1970) where the court struck
down a similar provision because it added a qualification to run for the national
Congress, in violation of Article I, Section 2 of the United States Constitution.
Cf. Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491
(1969). See also Storer v. Brown (N.D.Cal. Sept. 8, 1972), prob. juris. noted,

410 U.S. 965, 93 S.Ct. 1441, 35 L.Ed.2d 700 (U.S.Mar. 5, 1973)

1

I do not say that overinclusion, particularly if coupled with a definition of a

simple class which is patently objectionable, may never give rise to an equal
protection attack by one otherwise subject to appropriate regulation. Here,
however, we are dealing with a very complex overall class made up of
numerous sub-classes of employees each of which has its own unique position.
I do not think that judicial analysis in one fell swoop, in a case which shows no
impropriety in plaintiff's classification, is either necessary or desirable, since it
places us in a position of deciding issues which have not been fully aired by
interested parties. I believe that a court should resolve constitutional questions
only to the extent necessary to deal with the rights of the real litigants before it.
I think that this is a particularly unfortunate case in which to resolve the broad
issues considered by the majority

I do not, moreover, yet concede the validity of such hypothetical complaints.

There are many different job categories in the classified service of the City of
Cranston; I think a much better record is necessary before we attempt to decide
whether or not the broad candidacy restriction is warranted with respect to the
many differing positions. The reason for dealing with plaintiff's, not someone
else's, case is that we are not well informed as to the latter

I have not attempted to discuss the many reasons which can be advanced to
support the statute in issue. I think it not entirely beside the point that the
federal Hatch Act was sustained twenty-five years ago. United Public Workers
v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947). Its validity (and
that of certain similar state legislation) are again under attack and will soon be
redetermined. See National Ass'n of Letter Car. v. United States C. S. Com'n,
346 F.Supp. 578 (D.D.C.1972); review granted, 409 U.S. 1058, 93 S.Ct. 560,
34 L.Ed.2d 510 (1972). The decision in the latter case seems likely to control
what we do here. I see no small principle at stake: the right of the citizens and
taxpayers to attempt to deal as best they can with the frustrating and difficult
problem of how to regulate and control those who, ostensibly, "serve" them
(and whose salaries they pay). Many issues are involved; the possible conflict
of interest between one who, for example, teaches at a school and is also on the
school board; the impact on fellow civil employees of one who engages in
politics. If one can run, then one should also be able to promote another's
candidacy. There are states where the personnel of a state agency customarily
spend their time before elections promoting candidates. I seriously doubt the
wisdom of judicial decisions removing from the citizenry and their legislatures
much of their power to deal practically, if imperfectly, with such matters
The difficulty of judicial intervention in this field is suggested in Broadrick v.

Oklahoma State Personnel Board, 338 F. Supp. 711 (W.D.Okl.1972), review

granted, 409 U.S. 1058, 93 S.Ct. 550, 34 L.Ed. 2d 510 (1972), where one issue
before the Supreme Court is an alleged denial of equal protection because the
employees of some but not all state agencies were precluded from political
activity. If an attempt is made to reduce the scope of the legislation here in
issue, one can foresee further equal protection attacks based upon the argument
of arbitrary underinclusiveness.