The opinion
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Painter, Appellant, v. Graley, Appellee.
[Cite as Painter v. Graley (1994), Ohio St. 3d .]
Employer and employee -- Ohio Constitution does not guarantee
an unclassified public employee a right to seek partisan
elected office while holding public employment --
Requirements for stating a claim of wrongful discharge in
violation of public policy -- Sources from which "clear
public policy" sufficient to justify an exception to the
employment-at-will doctrine may be discerned.
1. Neither Section 2, Article I nor Section 11, Article I of
the Ohio Constitution guarantees an
unclassified public employee a right to seek
partisan elected office while holding public
employment.
2. To state a claim of wrongful discharge in violation of
public policy, a plaintiff must allege
facts demonstrating that the employer's act
of discharging him contravened a "clear
public policy." (Greeley v. Miami Valley
Maintenance Contractors, Inc. [1990], 49
Ohio St.3d 228, 551 N.E.2d 981, affirmed
and followed.)
3. "Clear public policy" sufficient to justify an exception to
the employment-at-will doctrine is not
limited to public policy expressed by the
General Assembly in the form of statutory
enactments, but may also be discerned as a
matter of law based on other sources, such
as the Constitutions of Ohio and the United
States, administrative rules and
regulations, and the common law. (Tulloh
v. Goodyear Atomic Corp. [1992], 62 Ohio
St. 3d 541, 548 N.E.2d 729, overruled.)
(No. 93-325 -- Submitted March 30, 1994 -- Decided
September 28, 1994.)
Appeal from the Court of Appeals for Cuyahoga County, No.
61148.
In October 1984, appellant Shirley Painter was appointed
to the position of Chief Deputy Clerk in the Bookkeeping
Department of the Civil Division of the Municipal Court of the
city of Cleveland. The parties agree that Painter was an
unclassified civil servant. Her duties in that position were
primarily clerical in nature, and did not involve policymaking.
In 1985, appellant became a candidate for the office of
member of Cleveland City Council. Appellant ran as a
Democrat. On August 21, 1985, she requested a leave of absence
of undetermined duration from her chief deputy clerk duties.
Her asserted reason for seeking a leave of absence was to "seek
political office in the city of Cleveland."
During 1985, appellee Charles L. Graley held the position
of assistant personnel director in the municipal court clerk's
office. On October 30, 1985, Graley notified appellant that
her employment as chief deputy clerk had been terminated
effective October 1, 1985.
In October 1988, Painter filed an action in the Cuyahoga
County Court of Common Pleas in which she demanded
reinstatement to her chief deputy clerk position in the
municipal court, an award of back pay from the date of her
termination, punitive damages, and attorney fees. The court of
common pleas granted summary judgment in Painter's favor,
finding she was entitled to relief based on precedent
established in Mancuso v. Taft (C.A.1, 1973), 476 F. 2d 187;
Vincent v. Maeras (S.D. Ill. 1978) 447 F. Supp. 775; and
Johnson v. Cushing (D. Minn. 1980), 483 F.Supp. 608. The court
held a hearing at which it received evidence relevant to the
amount of damages suffered by Painter. The court ultimately
awarded judgment to Painter and ordered that she be reinstated
to the post of chief deputy clerk. Painter was also awarded
damages representing back pay.
The Eighth District Court of Appeals reversed, and entered
judgment in favor of defendant-appellee Graley. The appellate
court found that Painter had not established a violation of her
rights under the Ohio Constitution nor had she established a
right to recover damages pursuant to Greeley v. Miami Valley
Maintenance Contractors, Inc. (1990), 49 Ohio St.3d 228, 551
N.E.2d 981. Painter v. Graley (1992), 84 Ohio App.3d 65, 616
N.E.2d 285.
The cause is now before this court pursuant to the
allowance, upon rehearing, of a motion to certify the record.
Joseph R. Compoli, Jr. and James R. Goodluck, for
appellant.
Sharon Sobol Jordan, Cleveland Director of Law, and
Barbara R. Marburger, Assistant Director of Law, for appellee.
Kevin F. O'Neill, urging reversal for amicus curiae,
American Civil Liberties Union of Ohio Foundation, Inc.1
A. William Sweeney, J. The court of appeals held that
appellant did not suffer a violation of her rights under the
Ohio Constitution, and was not entitled to relief under the
doctrine of wrongful discharge in violation of public policy as
established in Greeley v. Miami Valley Maintenance Contractors,
Inc. (1990), 49 Ohio St.3d 228, 551 N.E.2d 981. We agree with
the majority opinion of the court of appeals, per Presiding
Judge (now Justice) F.E. Sweeney, that Painter did not suffer a
violation of rights guaranteed by the Ohio Constitution, and we
affirm its holding that defendant-appellee Graley was entitled
to judgment in his favor.
Asserted Violation of Rights
Protected by the Ohio Constitution
Appellant urges us to hold that Sections 2 and 11,2
Article I of the Ohio Constitution grant her a right to become
a candidate for public office, and asks us to specifically
recognize the existence of a private cause of action to obtain
a remedy for the violation of that right. She argues that a
public employer may not, consistent with the Ohio Constitution,
discharge an unclassified public employee based solely on the
reason that the employee became a candidate for public office.3
We held in Provens v. Stark Cty. Bd. of Mental Retardation
& Developmental Disabilities (1992), 64 Ohio St. 3d 252, 594
N.E.2d 959, that "[p]ublic employees do not have a private
cause of civil action against their employer to redress alleged
violations by their employer of policies embodied in the Ohio
Constitution when it is determined that there are other
reasonably satisfactory remedies provided by statutory
enactment and administrative process." Id. at syllabus.
Provens did not determine whether a private, common-law cause
of action might be available to unclassified public employees
or others asserting violations of constitutional rights for
which statutory or administrative remedies do not exist.
Painter has expressly disclaimed any reliance on rights or
protections provided by the Constitution of the United States,
and has instead confined her arguments to rights arising from
the Ohio Constitution. The trial court granted Painter summary
judgment based on the federal cases of Mancuso v. Taft (C.A.1,
1973), 476 F. 2d 187; Vincent v. Maeras (S.D. Ill. 1978), 447
F. Supp. 775; and Johnson v. Cushing (D. Minn. 1980), 483
F.Supp. 608. Because those cases concerned federal substantive
law, we find them to be of limited value in our interpretation
of the Ohio Constitution, as "[t]he Ohio Constitution is a
document of independent force." Arnold v. Cleveland (1993), 67
Ohio St. 3d 35, 616 N.E.2d 163, at syllabus. We note, however,
that subsequent to the decisions of the Supreme Court of the
United States in United States Civ. Serv. Comm. v. Natl. Assn.
of Letter Carriers, AFL-CIO (1973), 413 U.S. 548, 93 S.Ct.
2880, 37 L.Ed.2d 796, and Broadrick v. Oklahoma (1973), 413
U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830, the very court which
decided Mancuso questioned its continued vitality. Magill v.
Lynch (C.A.1, 1977), 560 F.2d 22, 27. Similarly, Johnson v.
Cushing supra, was later described as containing "undeniably
an incorrect interpretation of the Hatch Act [Sections 1501
through 1508, Title 5, U.S. Code]. *** [I]t is clear from the
statute and the legislative history that a covered state
employee is prohibited from running for public office in a
partisan election, even if on approved leave without pay."
Minnesota Dept. of Jobs & Training v. Merit Sys. Protection Bd.
(C.A.8, 1989), 875 F.2d 179, 183. See, also, Waters v.
Churchill (1994), 511 U.S. , , S.Ct. , ,
L.Ed.2d , , U.S. , , ("Even something as close to
the core of the First Amendment as participation in political
campaigns may be prohibited to government employees. Broadrick
v. Oklahoma, [supra]; Letter Carriers, supra; Public Workers v.
Mitchell, 330 U.S. 75 [67 S.Ct. 556, 91 L.Ed. 754] [1947].").
This court has consistently held that rational
restrictions on a public employee's right to run for office may
be imposed without violating rights arising from the Ohio
Constitution. See State ex rel. Keefe v. Eyrich (1986), 22 Ohio
St.3d 164, 22 OBR 252, 489 N.E.2d 259 (restriction against
becoming candidate for judge on the basis of age upheld); State
ex rel. Vana v. Maple Hts. City Council (1990), 54 Ohio St. 3d
91, 561 N.E.2d 909 (city charter provision prohibiting an
elected official from simultaneously holding other public
office or other public employment upheld). See, also,
Cincinnati v. Ohio Council 8, Am. Fedn. of State, Cty, & Mun.
Emp., AFL-CIO (1991), 61 Ohio St.3d 658, 576 N.E.2d 745 ("[I]t
is unquestionable that the city may limit its employees'
participation in local partisan politics without violating the
Constitution." Id., 61 Ohio St.3d at 670, 576 N.E.2d at
755.). Our holding today is consistent with the precedent
established in these cases.
Although an unclassified employee is not prohibited by
statute or Cleveland ordinance from seeking partisan elected
office,4 that fact does not lead to the conclusion that a
public employer may not himself prohibit his at-will employees
from running for such an office. Stated differently, such an
employer is not constitutionally required to accept his
subordinate's decision to become a candidate for election to
partisan elected office, and maintain the employment of that
subordinate during his candidacy or term of office.
We hold today that neither Section 2, Article I nor
Section 11, Article I of the Ohio Constitution guarantees an
unclassified public employee a right to seek partisan elected
office while holding public employment. Thus, Painter's
dismissal from the employ of the municipal court did not
violate her Ohio constitutional rights.
Claim Under Doctrine
of Wrongful Discharge in
Violation of Public Policy
Both the trial court and the court of appeals analyzed
Painter's claim based on Greeley v. Miami Valley Maintenance
Contractors, Inc. (1990), 49 Ohio St. 3d 228, 551 N.E. 2d 981,
which created an exception to the common-law employment-at-will
doctrine historically followed in Ohio. Traditionally, this
doctrine allowed an employer to terminate the employment of his
worker "'at will for any cause, at any time whatsoever, even if
done in gross or reckless disregard of [an] employee's
rights.'" Phung v. Waste Mgt., Inc. (1986), 23 Ohio St. 3d
100, 102, 23 OBR 260, 261-262, 491 N.E.2d 1114, 1116, quoting
Peterson v. Scott Constr. Co. (1982), 5 Ohio App. 3d 203, 205,
5 OBR 466, 468, 451 N.E.2d 1236, 1239.
In Phung, an employee asserted that his employer
discharged him for the reason that he had reported company
violations of "legal and societal obligations" to his employer,
and had demanded that the company cease the violations. This
court refused to acknowledge the existence of a public policy
exception to the employment-at-will doctrine under those facts,
stating that Phung had "failed to state a violation of a
sufficiently clear public policy to warrant creation of a cause
of action" Id., 23 Ohio St. 3d at 102, 23 OBR at 262, 491 N.E.
2d at 1116-1117.
In dissent, Justice Clifford F. Brown, joined by Justice
A.W. Sweeney, argued that Phung's allegations that his employer
fired him as a direct consequence of his reporting legal
improprieties described conduct in violation of clear public
policy. Justice Brown maintained that "[t]his court, and the
citizenry of Ohio, simply cannot tolerate an employer's
retaliatory discharge of an employee under such
circumstances." Id., 23 Ohio St.3d at 107, 23 OBR at 266, 491
N.E. 2d at 1120. Justice Brown argued that public policy
sufficient to justify an exception to the employment-at-will
doctrine could be found in well-established sources such as
legislation; administrative rules, regulations or decisions;
and judicial decisions. Id.
In Greeley v. Miami Valley Maintenance Contractors, Inc.
supra, we expressly recognized a cause of action in tort for
wrongful discharge in violation of public policy. Greeley, at
paragraph three of the syllabus. We thus expressly
acknowledged an exception to the traditional employment-at-will
doctrine in Ohio common law. Pursuant to Greeley, a discharged
employee has a private cause of action sounding in tort for
wrongful discharge where his or her discharge is in
contravention of a "sufficiently clear public policy." Id., 49
Ohio St.3d at 233, 551 N.E. 2d at 986 (citing Phung, supra).
In Greeley, we recognized that public policy was "sufficiently
clear" where the General Assembly had adopted a specific
statute forbidding an employer from discharging or disciplining
an employee on the basis of a particular circumstance or
occurrence.5 We noted that other exceptions might be
recognized where the public policy could be deemed to be "of
equally serious import as the violation of a statute." Id., 49
Ohio St. 3d at 235, 551 N.E. 2d at 987.
Consistent with Greeley, we hold today that to state a
claim of wrongful discharge in violation of public policy, a
plaintiff must allege facts demonstrating that the employer's
act of discharging him contravened a "clear public policy."
Subsequent to Greeley, the courts of appeals in this state
have differed as to whether an employee has a cause of action
for wrongful discharge in violation of public policy not stated
in a statute.6 In recent years, those courts which refused to
acknowledge the existence of such a claim have had good basis
for doing so in the syllabus in Tulloh v. Goodyear Atomic Corp.
(1992), 62 Ohio St. 3d 541, 548 N.E.2d 729, which reads:
"[a]bsent statutory authority, there is no common-law basis in
tort for a wrongful discharge claim." Id. at syllabus.7
Provisions found in the Ohio Constitution are necessarily
statements of Ohio public policy, if not the most definitive
statements of Ohio public policy. Strict and literal adherence
to the syllabus of Tulloh would lead to the illogical result
that courts could not recognize claims of wrongful discharge in
violation of public policies where those policies arise from
the Constitution of Ohio, unless that public policy was also
incorporated into a legislative enactment.
The syllabus to Tulloh oversimplifies the public policy
exception to Ohio's employment-at-will common-law doctrine, and
is hereby overruled. "Clear public policy" sufficient to
justify an exception to the employment-at-will doctrine is not
limited to public policy expressed by the General Assembly in
the form of statutory enactments. As this court recently
noted, "[w]hen the common law has been out of step with the
times, and the legislature, for whatever reason, has not acted,
we have undertaken to change the law, and rightfully so. After
all, who presides over the common law but the courts?"
Gallimore v. Children's Hosp. Med. Ctr. (1993), 67 Ohio St. 3d
244, 253, 617 N.E.2d 1052, 1059. Today we reaffirm Greeley and
hold that an exception to the employment-at-will doctrine is
justified where an employer has discharged his employee in
contravention of a "sufficiently clear public policy." The
existence of such a public policy may be discerned by the Ohio
judiciary based on sources such as the Constitutions of Ohio
and the United States, legislation, administrative rules and
regulations, and the common law.
We have confidence that the courts of this state are
capable of determining as a matter of law whether alleged
grounds for a discharge, if true, violate a "clear public
policy" justifying an exception to the common-law
employment-at-will doctrine, thereby stating a claim. In
making such determinations, courts should be mindful of our
admonition in Greeley that an exception to the traditional
doctrine of employment-at-will should be recognized only where
the public policy alleged to have been violated is of equally
serious import as the violation of a statute. Id., 49 Ohio
St.3d at 234, 551 N.E. 2d at 987.
We note as well that a finding of a "sufficiently clear
public policy" is only the first step in establishing a right
to recover for the tort of wrongful discharge in violation of
public policy. In cases where this required element of the
tort is met, a plaintiff's right of recovery will depend upon
proof of other required elements. Full development of the
elements of the tort of wrongful discharge in violation of
public policy in Ohio will result through litigation and
resolution of future cases, as it is through this means that
the common law develops.8
In light of the foregoing analysis, it is necessary for us
to determine whether a "sufficiently clear public policy"
exists which precluded Painter's firing from her unclassified
position for the reason that she became a candidate for
partisan elected office. We note that the General Assembly has
not remained silent on the respective rights of unclassified
employees and their employers, but rather has enacted several
statutes as legislative statements of public policy in this
area. Where the General Assembly has spoken, and in so
speaking violated no constitutional provision, the courts of
this state must not contravene the legislature's expression of
public policy. "Judicial policy preferences may not be used to
override valid legislative enactments, for the General Assembly
should be the final arbiter of public policy." State v.
Smorgala (1990), 50 Ohio St. 3d 222, 223, 553 N.E.2d 672, 674.
In adopting R.C. 1901.32, the General Assembly not only
established Painter's office of Chief Deputy Clerk in the
Cleveland Municipal Court as an unclassified position, but also
specifically provided that "any appointee under sections
1901.01 to 1901.37 of the Revised Code may be dismissed or
discharged by the same power which appointed him." In
specifically designating chief deputy clerks to be
unclassified, the legislature expressed the public policy that
they serve at the pleasure of those who appointed them. That
is, Painter's at-will status as a public employee was
prescribed by statute, and is not the result of the common-law
employment-at-will doctrine. In that Painter's dismissal did
not violate her constitutional rights, the existence of this
legislative directive precludes us from finding a "sufficiently
clear public policy" against Painter's dismissal based upon her
becoming a candidate for office.9
Because there is no clear public policy in support of
allowing public employees to become candidates for partisan
elective office, we affirm the court of appeals' finding that
Painter's claim of wrongful discharge lacks merit.
For the foregoing reasons, the judgment of the court of
appeals is affirmed.
Judgment affirmed.
Resnick, J., concurs.
Moyer, C.J., concurs in paragraphs one and two of the
syllabus and in the judgment.
Wright, J., concurs in paragraph one of the syllabus and
in the judgment
Douglas and Pfeifer, JJ., concur in part and dissent in
part.
Brogan, J., dissents.
James A. Brogran, J., of the Second Appellate District,
sitting for F.E. Sweeney, J.
FOOTNOTES:
1 Amicus's motion for leave to file its brief instanter
is granted.
2 Section 2, Article I of the Ohio Constitution provides:
"All political power is inherent in the people.
Government is instituted for their equal protection and
benefit, and they have the right to alter, reform, or abolish
the same, whenever they may deem it necessary; and no special
privileges or immunities shall ever be granted, that may not be
altered, revoked, or repealed by the general assembly."
Section 11, Article I of the Ohio Constitution provides:
"Every citizen may freely speak, write, and publish his
sentiments on all subjects, being responsible for the abuse of
the right; and no law shall be passed to restrain or abridge
the liberty of speech, or of the press. In all criminal
prosecutions for libel, the truth may be given in evidence to
the jury, and if it shall appear to the jury, that the matter
charged as libelous is true, and was published with good
motives, and for justifiable ends, the party shall be
acquitted."
3 Throughout this litigation, Painter has consistently
asserted that she was dismissed for the sole reason that she
sought elected office. Defendant Graley at no point has
disputed this characterization of his motivation in dismissing
Painter. On this record, we accept Painter's assertion that
the sole cause of her dismissal was her decision to become a
candidate for the elected office of member of Cleveland City
Council.
4 R.C. 124.57 provides:
"No officer or employee in the classified service of the
*** cities *** shall directly or indirectly, orally or by
letter, solicit or receive, or be in any manner concerned in
soliciting or receiving any assessment, subscription, or
contribution for any political party or for any candidate for
public office; nor shall any person solicit directly or
indirectly, orally or by letter, or be in any manner concerned
in soliciting any such assessment, contribution, or payment
from any officer or employee in the classified service of the
state and the several counties, cities,or city school districts
thereof, or civil service townships; nor shall any officer or
employee in the classified service of the state and *** cities
*** be an officer in any political organization or take part in
politics other than to vote as he pleases and to express freely
his political opinions." (Emphasis added.)
5 In Greeley, the plaintiff alleged that he had been
fired as the result of a court order to his employer for wage
assignment. The order required the employer to withhold
amounts representing court-ordered child support payments from
plaintiff's pay. Plaintiff claimed that his discharge violated
R.C. 3113.213(D), which provides that "[n]o employer may use an
order to withhold personal earnings [for satisfaction of child
support orders] as a basis for a discharge of *** an employee."
6 See, e.g., Shaffer v. Frontrunner, Inc. (1990), 57 Ohio
App.3d 18, 566 N.E.2d 193; Clipson v. Schlessman (1993), 89
Ohio App.3d 230, 624 N.E.2d 220; cf. Edelman v. Franklin Iron &
Metal Corp. (1993), 87 Ohio App.3d 406, 622 N.E.2d 411; Sabo v.
Schott (Mar. 2, 1994), Hamilton App. No. C-920941, unreported,
1994 WL 59464, discretionary appeal allowed in (1994), 70 Ohio
St.3d 1435, N.E.2d ; Collins v. Rizkana (Nov. 22, 1993),
Stark App. No. CA-9310, unreported, 1993 WL 500478, motion to
certify the record allowed in (1994), 69 Ohio St.3d 1429, 631
N.E.2d 640; Ricciardi v. Babcock & Wilcox Co. (Jan. 27, 1993),
Summit App. No. 15728, unreported, 1993 WL 20999, motion to
certify the record allowed in (1993), 67 Ohio St.3d 1409, 615
N.E.2d 1044, appeal dismissed on joint application in (1994),
69 Ohio St.3d 1420, 631 N.E.2d 160; Eagleye v. TRW, Inc. (Feb.
17, 1994), Cuyahoga App. No. 64662, unreported.
7 The majority in Tulloh consisted of Chief Justice
Moyer, Justice Wright, and two judges of courts of appeals
sitting by appointment. Joining in Justice Douglas's written
dissent were Justices A.W. Sweeney and Resnick, current members
of this court.
8 In reviewing future cases, Ohio courts may find useful
the analysis of Villanova Law Professor H. Perritt, who, based
on review of cases throughout the country, has described the
elements of the tort as follows:
"1. That clear public policy existed and was manifested
in a state or federal constitution, statute or administrative
regulation, or in the common law (the clarity element).
"2. That dismissing employees under circumstances like
those involved in the plaintiff's dismissal would jeopardize
the public policy (the jeopardy element).
"3. The plaintiff's dismissal was motivated by conduct
related to the public policy (the causation element).
"4. The employer lacked overriding legitimate business
justification for the dismissal (the overriding justification
element)." (Emphasis sic.)
H. Perritt, The Future of Wrongful Dismissal Claims:
Where Does Employer Self Interest Lie? (1989), 58 U.Cin.L.Rev.
397, 398-399.
9 Our opinion herein should thus not necessarily be
extended to nonpublic employees. We express no opinion as to
whether public policy would prohibit a private employer from
discharging an employee based on that employee's becoming a
candidate for public office.
Douglas, J., concurring in part and dissenting in
part. I concur with paragraphs two and three of the
syllabus and the well-reasoned discussion supporting these
statements of law. I respectfully dissent as to paragraph one
of the syllabus and the ultimate judgment reached by the
majority. In this regard, I concur in the persuasive excursus
in the dissent of Judge Brogan.
Pfeifer, J., concurs in the foregoing opinion.
Brogan, J., dissenting. I must respectfully dissent from
the lead opinion. I would reverse the court of appeals and
find that Painter was wrongfully terminated for merely
exercising her rights to freedom of speech as guaranteed by the
Ohio Constitution, in Section 11, Article I.
Long ago, the United States Supreme Court held that
Congress had the power to regulate within reasonable limits the
political conduct of federal employees in order to promote
efficiency and integrity in the public service. Ex parte
Curtis (1882), 106 U.S. 371, 1 S.Ct. 381, 27 L.Ed. 232. In
Curtis, the court held that the congressional Act of 1876 which
forbade certain officers of the United States from requesting
from, giving to or receiving from any other officer money or
property for political purposes was constitutional.
In 1947, the United States Supreme Court in United Pub.
Workers of Am. v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed.
754, held that the provisions of the Hatch Act, which
prohibited certain federal employees from taking an "active
part in political management or in political campaigns," did
not violate the fundamental rights of free speech guaranteed by
the First Amendment.
The court held that it was sufficient under the
Constitution that the act of the employee be reasonably deemed
by Congress to interfere with the efficiency of public
service. The court noted that "[w]hatever differences there
may be between administrative employees of the government and
industrial workers in its employ are differences in detail" for
sole consideration of Congress. Id. at 102, 67 S.Ct. at 570,
91 L.Ed. at 774.
Justice Black dissented in Mitchell on the basis that the
provision of the Hatch Act under attack was too broad,
ambiguous, and uncertain in its consequences to be made the
basis of removing deserving employees from their jobs. He
wrote the following, id. at 110-113, 67 S.Ct. at 575-576, 91
L.Ed. 778-780:
"The right[s] to vote and privately to express an opinion
on political matters, important though they be, are but parts
of the broad freedoms which our Constitution has provided as
the bulwark of our free political institutions. Popular
government, to be effective, must permit and encourage much
wider political activity by all the people. Real popular
government means 'that men may speak as they think on matters
vital to them and that falsehoods may be exposed through the
processes of education and discussion ***. Those who won our
independence had confidence in the power of free and fearless
reasoning and communication of ideas to discover and spread
political and economic truth.' Thornhill v. Alabama [1940], 310
U.S. 88, 95 [60 S.Ct. 736, 741, 84 L.Ed. 1093, 1098].
Legislation which muzzles several million citizens threatens
popular government, not only because it injures the individuals
muzzled, but also because of its harmful effect on the body
politic in depriving it of the political participation and
interest of such a large segment of our citizens. Forcing
public employees to contribute money and influence can well be
proscribed in the interest of 'clean politics' and public
administration. But I think the Constitution prohibits
legislation which prevents millions of citizens from
contributing their arguments, complaints, and suggestions to
the political debates which are the essence of our democracy;
prevents them from engaging in organizational activity to urge
others to vote and take an interest in political affairs; bars
them from performing the interested citizen's duty of insuring
that his and his fellow citizens' votes are counted. Such
drastic limitations on the right of all the people to express
political opinions and take political action would be
inconsistent with the First Amendment's guaranty of freedom of
speech, press, assembly, and petition. And it would violate,
or come dangerously close to violating Article I and the
Seventeenth Amendment of the Constitution, which protect the
right of the people to vote for their Congressmen and their
United States Senators and to have their votes counted. See Ex
parte Yarbrough [1884], 110 U.S. 651 [4 S.Ct. 152, 28 L.Ed.
274]; United States v. Mosley [1915], 238 U.S. 383 [35 S.Ct.
904, 59 L.Ed. 1355]; United States v. Classic [1941], 313 U.S.
299, 314 [61 S.Ct. 1031, 1037, 85 L.Ed. 1368, 1377].
"There is nothing about federal and state employees as a
class which justifies depriving them or society of the benefits
of their participation in public affairs. They, like other
citizens, pay taxes and serve their country in peace and in
war. The taxes they pay and the wars in which they fight are
determined by the elected spokesmen of all the people. They
come from the same homes, communities, schools, churches, and
colleges as do the other citizens. I think the Constitution
guarantees to them the same right that other groups of good
citizens have to engage in activities which decide who their
elected representatives shall be.
"No statute of Congress has ever before attempted so
drastically to stifle the spoken and written political
utterances and lawful political activities of federal and state
employees as a class. The nearest approach was the Civil
Service Act of 1883, 22 Stat. 403-4, which authorized the
President to promulgate rules so that, among other things, no
government employee should 'use his official authority or
influence to coerce the political action of any person or
body.' In 1907, the Civil Service Commission, purporting to
act under authority of the 1883 Act, did, as the Court points
out, prohibit civil service employees from taking 'an active
part in political management or in political campaigns.' But
this Court has not approved the statutory power of the
Commission to promulgate such a rule, nor has it ever expressly
or by implication approved the constitutional validity of any
such sweeping abridgment of the right of freedom of
expression. Neither Ex parte Curtis [1882], 106 U.S. 371 [1
S.Ct. 381, 27 L.Ed. 232], nor United States v. Wurzbach [1930],
280 U.S. 396 [5 S.Ct. 167, 74 L.Ed. 508], lend the slightest
support to the present statute. Both of these cases related to
statutes which did no more than limit the right of employees to
collect money from other employees for political purposes.
Indeed, the Curtis decision seems implicitly to have rested on
the assumption that many political activities of government
employees, beyond merely voting and speaking secretly, would
not, and could not under the Constitution, be impaired by the
legislation there at issue. Ex parte Curtis, supra, at 375 [1
S.Ct. at 385-386, 27 L.Ed. at 235].
"It is argued that it is in the interest of clean politics
to suppress political activities of federal and state
employees. It would hardly seem to be imperative to muzzle
millions of citizens because some of them, if left their
constitutional freedoms, might corrupt the political process.
All political corruption is not traceable to state and federal
employees. Therefore, it is possible that other groups may
later be compelled to sacrifice their right to participate in
political activities for the protection of the purity of the
Government of which they are a part." (Footnote omitted.)
In Williams v. Rhodes (1968), 393 U.S. 23, 89 S.Ct. 5, 21
L.Ed.2d 24, 45 O.O.2d 236, the Supreme Court held that Ohio's
restrictive elections laws were invidiously discriminating and
violated the Equal Protection Clause because they gave two
established parties an advantage over new parties. The court
held that the state laws involved heavily burdened the right of
individuals to associate for the advancement of political
beliefs and the right of qualified voters to cast their votes
effectively. The court found that the state had not shown a
"compelling interest" justifying those burdens.
In Pickering v. Bd. of Edn. of Twp. High School Dist. 205
(1968), 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811, the
Supreme Court held that absent proof of false statements
knowingly or recklessly made, a public school teacher's
exercise of his right to speak on issues of public importance
may not furnish the basis for his dismissal from public
employment. The court held that the problem was "to arrive at
a balance between the interests of the teacher, as a citizen,
in commenting on matters of public concern and the interest of
the State as an employer, in promoting the efficiency of the
public services it performs through its employees." Id. at
568, 88 S.Ct. at 1734-1735, 20 L.Ed.2d at 817.
"The Pickering balance requires full consideration of the
government's interest in the effective and efficient
fulfillment of the responsibilities to the public." Connick v.
Myers (1983), 461 U.S. 138, 150, 103 S.Ct. 1684, 1692, 75
L.Ed.2d 708, 722.
In Bullock v. Carter (1972), 405 U.S. 134, 92 S.Ct. 849,
31 L.Ed.2d 92, the United States Supreme Court invalidated a
Texas primary filing fee system as contravening the Equal
Protection Clause of the Fourteenth Amendment. Chief Justice
Burger noted that the "Court has not heretofore attached such
fundamental status to candidacy as to invoke a rigorous
standard of review. However, the 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."10 (Footnote
omitted.) Id. at 142-143, 92 S.Ct. at 855-856, 31 L.Ed.2d at
99.
In Broadrick v. Oklahoma (1973), 413 U.S. 601, 93 S.Ct.
2908, 37 L.Ed.2d 830, the Supreme Court sustained Oklahoma's
"Little Hatch Act" against constitutional attack. The Act
provided that no classified employee shall be a candidate for
paid political office.
In Illinois State Bd. of Elections v. Socialist Workers
Party (1979), 440 U.S. 173, 99 S.Ct. 983, 59 L.Ed.2d 230, there
was a challenge to the state's requirement as to the number of
signatures for nominating petitions. The claim was that the
number established by law was excessive and prohibited new
parties and independent candidates from participating in
elections. Consistent with its previous cases, the Supreme
Court stated the following at 184, 99 S.Ct. at 990, 59 L.Ed.2d
at 241:
"Restrictions on access to the ballot burden two distinct
and fundamental rights, 'the right of individuals to associate
for the advancement of political beliefs, and the right of
qualified voters, regardless of their political persuasion, to
cast their votes effectively.' Williams v. Rhodes, supra
[(1968), 393 U.S.], at 30 [89 S.Ct. at 10, 21 L.Ed.2d at 31, 45
O.O.2d at 239]. The freedom to associate as a political party,
a right we have recognized as fundamental * * *, has diminished
practical value if the party can be kept off the ballot.
Access restrictions also implicate the right to vote because,
absent recourse to referendums, 'voters can assert their
preferences only through candidates or parties or both.' * * *
By limiting the choices available to voters, the State impairs
the voters' ability to express their political preferences.
And for reasons too self-evident to warrant amplification here,
we have often reiterated that voting is of the most fundamental
significance under our constitutional structure. * * *
"When such vital individual rights are at stake, a State
must establish that its classification is necessary to serve a
compelling interest. * * *" (Citation omitted.)
Further in that same vein, the court pointed out:
"However, our previous opinions have also emphasized that 'even
when pursuing a legitimate interest, a State may not choose
means that unnecessarily restrict constitutionally protected
liberty,' * * * and we have required that States adopt the
least drastic means to achieve their ends. * * * This
requirement is particularly important where restrictions on
access to the ballot are involved." (Citations omitted.) Id.
440 U.S. at 185, 99 S.Ct. at 991, 59 L.Ed.2d at 242. "[A]n
election campaign is a means of disseminating ideas as well as
attaining political office. * * * Overbroad restrictions on
ballot access jeopardize this form of political expression."
(Citations omitted.) Id. at 186, 99 S.Ct. at 991, 59 L.Ed.2d
at 242.
In Elrod v. Burns (1976), 427 U.S. 347, 96 S.Ct. 2673, 49
L.Ed.2d 547, a plurality of the United States Supreme Court
recognized that public employees retain a core First Amendment
right to enjoy basic political associations, and the government
must select the narrowest means in regulating that fundamental
interest.
In Clements v. Fashing (1982), 457 U.S. 957, 102 S.Ct.
2836, 73 L.Ed.2d 508, the court held that the Texas
constitutional provision limiting judges from running for the
legislature under certain circumstances did not violate a
judge's First Amendment right as guaranteed by the Fourteenth
Amendment. The court again reiterated that candidacy is not a
fundamental right and classifications need only be drawn as to
bear some rational relationship to a legitimate state end.
In a significant dissent joined by three of his brethren,
Justice Brennan wrote the following:
"It is worth noting, however, that the plurality's
analysis of the level of scrutiny to be applied to these
restrictions gives too little consideration to the impact of
our prior cases. Although we have never defined candidacy as a
fundamental right, we have clearly recognized that restrictions
on candidacy impinge on First Amendment rights of candidates
and voters. See, e.g., Illinois State Bd. of Elections v.
Socialist Workers Party, 440 U.S. 173, 184 [99 S.Ct. 983, 990,
59 L.Ed.2d 230, 241] (1979); Lubin v. Panish, 415 U.S. 709, 716
[94 S.Ct. 1315, 1320, 39 L.Ed.2d 702, 708] (1974); American
Party of Texas v. White, 415 U.S. 767 [94 S.Ct. 1296, 39
L.Ed.2d 744] (1974); Bullock v. Carter, 405 U.S. 134, 142-143
[92 S.Ct. 849, 855-856, 31 L.Ed.2d 92, 99] (1972); Williams v.
Rhodes, 393 U.S. 23, 31 [89 S.Ct. 5, 10, 21 L.Ed.2d 24, 31]
(1968). With this consideration in mind, we have applied
strict scrutiny in reviewing most restrictions on ballot
access; thus we required the State to justify any
discrimination with respect to candidacy with a showing that
the differential treatment is 'necessary to further compelling
state interests.' American Party of Texas v. White, supra,
[415 U.S.] at 780 [94 S.Ct. at 1305, 30 L.Ed.2d at 760]. See,
also, Bullock v. Carter, supra, at 144 [92 S.Ct. at 856, 31
L.Ed.2d at 100]. The plurality dismisses our prior cases as
dealing with only two kinds of ballot access restrictions--
classifications based on wealth and classifications imposing
burdens on new or small political parties or independent
candidates. Ante, [457 U.S.] at 965-965 [102 S.Ct. at
2844-2844, 73 L.E.2d at 517-517]. But strict scrutiny was
required in those cases because of their impact on the First
Amendment rights of candidates and voters, see Storer v. Brown,
415 U.S. 724, 729 [94 S.Ct. 1274, 1278, 39 L.Ed.2d 714, 723]
(1974), not because the class of candidates or voters that was
burdened was somehow suspect. Compare Lubin v. Panish, 415
U.S., at 717-718 [94 S.Ct. at 1320-1321, 39 L.Ed.2d at
709-710], with id., at 719 [94 S.Ct. at 1321, 39 L.Ed.2d at
710] (Douglas, J., concurring) (strict scrutiny demanded
because classification based on wealth). The plurality offers
no explanation as to why the restrictions at issue here, which
completely bar some candidates from running and require other
candidates to give up their present employment, are less
'substantial' in their impact on candidates and their
supporters than, for example, the $700 fee at issue in Lubin.
"In my view, some greater deference may be due the State
because these restrictions affect only public employees, see
Part II, infra, but this does not suggest that, in subjecting
these classifications to equal protection scrutiny, we should
completely disregard the vital interests of the candidates and
the citizens who[m] they represent in a political campaign."
(Emphasis sic.) Id., 457 U.S. at 977, 102 S.Ct. at 2851, 73
L.Ed.2d at 525, fn. 2.
In Johnson v. Cushing (1980), 483 F.Supp. 608, the United
States District Court for the Minnesota District held that the
right to run for political office is a federal constitutional
right and the employee properly stated a claim for relief under
the civil rights statute. Judge Lord wrote the following:
"B. The Right to Candidacy
"Plaintiff also asserts a right to run for office. This
Court is asked to determine whether there is a constitutional
right to run for political office; it is not asked to determine
the importance of the right. Therefore, this Court makes no
determination one way or the other regarding whether the right
to run is fundamental; fundamental or not, it is a federal
Constitutional right.
"The First Circuit Court of Appeals, in Mancuso v. Taft,
476 F.2d 187 (1st Cir.1973), reasoned that the interest of the
individual in running for public office is an interest
protected by the First Amendment. The Court therein stated:
"'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
***. 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 office--means 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 independent 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 [the
defendant city] 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.' Id. at 195-196 (emphasis added)." Id. at 612-613.
In support of its argument that there is no fundamental
right to run for public office, appellee cites this court's
opinion in State ex rel. Keefe v. Eyrich (1986), 22 Ohio St.3d
164, 22 OBR 252, 489 N.E.2d 259. In that case, this court held
that the seventy-year age provision of Section 6(C), Article IV
of the Ohio Constitution did not violate the Equal Protection
Clause of the United States Constitution.
As authority for its statement that there is no
fundamental right to run for public office, this court cited
Snowden v. Hughes (1944), 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed.
497, which merely held that the right to become a candidate for
state office is a right or privilege of state citizenship and
not a federal right.
In dissenting, both Chief Justice Celebrezze and Justice
A.W. Sweeney argued that the majority had misread prior United
States Supreme Court precedent and that they would find the
Ohio constitutional provision unconstitutional because it
undercut the basic and fundamental rights of those who would
vote for judges over seventy without demonstrating that the
provision was necessary to serve a compelling interest of the
state. In short, they dissented because the majority failed to
apply a strict scrutiny analysis to this ballot access case.
While federal precedent is instructive, it must be
remembered that the Ohio Constitution is a document of
independent force. In the areas of individual rights and civil
liberties, the United States Constitution, where applicable to
the states, provides a floor below which state court decisions
may not fall. As long as state courts provide at least as much
protection as the United States Supreme Court has provided in
its interpretation of the federal Bill of Rights, state courts
are unrestricted in according greater civil liberties and
protections to individuals and groups. Arnold v. Cleveland
(1993), 67 Ohio St.3d 35, 616 N.E.2d 163. One court has
pointedly stated that "[w]hen a state court interprets the
Constitution of its state merely as a restatement of the
Federal Constitution, it both insults the dignity of the state
charter and denies citizens the fullest protection of their
rights." Davenport v. Garcia (Tex.1992), 834 S.W.2d 4, at 12.
Professor Cass Sunstein, the Karl Llewellyn Professor of
Jurisprudence at the University of Chicago, embraces the notion
that the First Amendment difficulties should be resolved with
reference to the Madisonian principles of free debate,
political discourse, and civic participation. In other words,
no government regulation of speech that promotes any of these
Madisonian principles should be allowed absent an extremely
strong government interest. Sunstein, Democracy and the
Problem of Free Speech (1993).
I believe that this court should embrace the Sunstein view
and hold that our Ohio Constitution protects the rights of all
of its citizens to seek political office, whether it be as a
part- time village councilman or councilwoman or as a full-time
state office holder, and that any restriction on that activity
by the state must be justified by the demonstration of a
compelling governmental interest.
The city of Cleveland long ago recognized the important
free speech and associational interests which are implicated
when political activity is restricted when its charter
carefully restricted only classified employees from seeking
political office.
I believe that due consideration can be given to the
rights of a public employee to run for political office without
disturbing the efficiency of government. No public employer
need make any special accommodation for the employee who seeks
some political office.
Effective local government depends upon grassroots support
and participation by all interested community members. Given
the limited compensation and part-time nature of many local
elective offices, candidates inevitably find it necessary to
retain full-time employment. Needlessly excluding public
employees from this process strikes at the heart of democratic
government and stifles a vocal segment of the community. Local
government employees such as Painter should not be placed in
the futile position of making an all-or-nothing choice between
their jobs and their candidacies.
Footnote:
10. "The makers of the Constitution recognized that the nexus
between the voter and candidate was practical as well as
theoretical, that the state could restrict the scope of the
franchise by simply imposing severe qualifications for
candidacy.
"During the debates of the fourteenth and fifteenth
amendments, the right to vote and the right to be a candidate
were frequently treated not as distinct constitutional
concepts, but rather as a single broad political right--'the
right to vote and hold office.' Although both the Senate and
House versions of the fifteenth amendment originally contained
a prohibition against denial or abridgment of the 'right to
vote and hold office' on racial grounds, the final version
returned from conference extended protection only to the
franchise. * * * Some Senators were undisturbed by the
alteration because they thought that protection of the right to
vote would effectively protect the right to hold office as
well." (Footnotes omitted.) Comment, Durational Residence
Requirements for Candidates (1973), 40 U.Chi.L.Rev. 357, 366.