Petitioners Brief — Quinn v. Muscare

ie

pec g 19S

JR CLERK

In Tus

Supreme Court of the Anited States

Ocroser Term, 1975

No. 75-130

ROBERT J. QUINN, individually and as Commissioner

of the Chicago Fire Department,

Petitioner,

vs.

FRANCIS MUSCARE,

Respondent.

On Writ Of Certiorari To The United States

Court Of Appeals For The Seventh Circuit

BRIEF FOR PETITIONER

WILLIAM R. QUINLAN

Corporation Counsel of the City of Chicago

511 City Hall, Chicago, Illinois 60602

Attorney for Petitioner

DANTEL PASCALE

EpMUND HATFIELD

Assistant Corporation Counsel

Of Counsel

Midwest Law Printing Co., Chicago 60601, Financial 6-3988

Petition For Certiorari Filed July 24, 1975

Certiorari Granted October 14, 1975

TABLE OF CONTENTS

PAGE

I, I si nacreraebieeniunaienaninitinn 1

tate leanne enciaietiianinanimalee 2

QUESTIONS PRESENTED ...............00::-0-0c-scscecseosnssosneee 3

CONSTITUTIONAL PROVISIONS, STATUTES

AND ADMINISTRATIVE REGULATIONS IN-

SUTEIEET iititnrercceteccupinticinitindenmeseitiieisianemenncnstnnbiennsinttitiion 4

I a aaa el naiscilnitieen 7

iat aaa itintneer iinet ciacinintemnameeniinianianinien 7

The Trial in the District Court ~............02002.2.222....-.. 10

The Opinion of the District Court -.........-............... 12

The Per Curiam Opinion of the Seventh Circuit... 15

SUMMARY OF THE ARGUMENT .....0 2... 17

IONS ccvencernssethsintimisiiliilinbiecniidienansienimarenesectanmennnenees 20

I.

Due Process Does Not Require Pre-Suspension

Hearings = . snseehidiiieiiiaiiaeaty 20

A. The Opinion of the Seventh Circuit Is Based

on Its Misreading of Two Recent Decisions of

this Court: Arnett v. Kennedy and Goss v.

B. The Opinion of the Seventh Circuit Is In Direct

Conflict with the Ruling of the Illinois Su-

preme Court in Kropel v. Conlisk, Which Is

In Accord With the Decisions of this Court ... 26

il

C. In Actual Fact, the Respondent Was Treated

With Fairness, Which Is the Essence of Due

CETTE eee ERD SAY Rie! re Bede Manet le 28

TI.

The Ruling of the District Court, That Limiting

the Length of a Fireman’s Hair, on Safety

Grounds, Is Constitutional, Should Be Affirmed .. 33

UIE CMI, sckisennenssihcciseistecsccnseesceniansessAldessasabenmaibeiainiencnbesmammienage 41

CITATIONS

Cases

Akridge v. Barres, 321 A.2d 230 (N.J. 1974) ................ 34

Arnett v. Kennedy, 416 U.S. 134 (1974) —0000.

isindaieisuideieemiadeeiabbdaiasseimeniaimmiaaiaetiil 16, 19, 20, 21, 23, 24, 25, 27

Arnold v. Carpenter, 459 F.2d 939 (7 Cir., 1972) .......... 34

Bishop v. Colaw, 450 F.2d 1069 (8 Cir., 1971) ................ 34

Board of Regents v. Roth, 408 U.S. 564 (1972) ............ 22

Boehning v. Indiana State Employees Assn., Inc., ......

BE cence GN Cay ED ctecninteaniheaiatbaaibieniaiilnnn 25

Bowles v. Willingham, 321 U.S. 503 (1944) 000... 30

Breen v. Kahl, 419 F.2d 1034 (7 Cir., 1969), cert. denied

eM ee sitceierenihceiitecdecctienecleiinintaainsiaeeniieeaidlipeapliinaasiaiionn 34

Brinkerhoff-Faris Trust and Savings Company v.

RS 8 eee 32

Cafeteria Workers v. McElroy, 367 U.S. 886 (1961) .. 21, 28

Chicago, B. & Q. R. Co. v. City of Chicago, 166 U.S.

Sei TE TIUEE seisciiesaciisensanictainteshaseidlalaiieuideeinitaningdiiiimatazapbianndeisnenmiine 31

Dwen v. Barry, 483 F.2d 1126 (2 Cir., 1973) 000202... 35

iil

Federal Communications Commission v. WJR, the

Goodwill Station, Inc., 337 U.S. 265 (1949) -.0.0........ 29

Goss v. Lopez, 419 U.S. 565 (1975) —............. 15, 19, 20, 21

Hannah v. Larche, 363 U.S. 420 (1960) ~.......02.20..22....... 29

Hordowich v. Board of Police and Fire Commissioners

of Melrose Park, 18 Ill. App.3d 20 (1974) ~.................. 34

Inland Empire District Council, L.S.W.V. v. Mills, 325

Se Se ED srsctintchnnsatandinniadcdincidbaitidinitiniieastiibecaent 29

Jackson v. Dorrier, 424 F.2d 213 (6 Cir., 1970), cert.

I i aaa ciltieallianeaatdaicsie 34

Joint Anti-Fascist Refugee Committee v. McGrath, 341

Ss BET MIIITED ss. iccississttaniemiescnacptntaemesiebuiiatiadimadecbabamaidas 33

King v. Saddleback, 445 F.2d 932 (9 Cir., 1971) .......... 34

Kropel v. Conlisk, 60 I1l.2d 17 (1975) .... 15, 19, 21, 26, 27, 28

Londoner v. City and County of Denver, 210 U.S. 373

IE cesta sitetitisinendacetilelatia ati i cesidanct ada teihilenedettcnies 29

Manco v. Town of Irvington, 313 A. 2d 219 (N.J. 1973),

ge BO FR RF | Ree ae 34

Marshall v. District of Columbia, ...... F. Supp. ......, 43

SR cael 38

Massie v. Henry, 455 F.2d 779 (4 Cir., 1972) ~.............. 34

Michini v. Rizzo, 379 F.Supp. 837 (E.D., Pa., 1974),

aff'd. 511 F.2d 1304 (3 Cir., 1975) ............................ 34, 36

Miller v. School] District Number 167, 495 F.2d 658 (7

RE REE REL NE noon RES RN CRED 35

Morgan v. United States, 298 U.S. 468 (1936) ................ 29

Muscare v. Quinn, 520 F.2d 1212 (7 Cir., 1975) ..0......... 24

Perry v. Sinderman, 408 U.S. 593 (1972) 2000000202000... 23

Phillips v. Commissioner of Internal Revenue, 283 U.S.

kT ERSTED ecco ce Na nee rane a 30

Quinn v. Muscare, ...... USS. ......, 44 L.W. 3222 (1975) .... 2

Richards v. Thurston, 424 F.2d 1281 (1 Cir., 1970) .... 34

iv

Stevenson v. Board of Education, 426 F.2d 1154 (5 Cir.,

1970), cert. denied 400 U.S. 9ST 022... eceeseeesesescseseses 34

Stradley v. Anderson, 478 F.2d 188 (8 Cir., 1973) ...... 34

United States v. O’Brien, 391 U.S. 367 (1968) ................ 35

Yarbrough v. City of Jacksonville, 363 F.Supp. 1176

EE Tk, Wein, CTE cnccsectmacsnncsnsnisintisiviitinimnnsnitisldimiensitiees 34, 37, 38

Constitutional Provisions

United States Constitution:

Ammemdepemt Fo ...2a1....-.cesccersscsecsorecseneccessensneenenensansnns 4, 37

a a al eae 4, 37

Da TE sitnicestsienicccniiticniitinsieesinissihimasiuniitiniatnaenenicinatin 37

Pim Fi ccectescscsesscccinnrererteneninstennennavetnatacinninmsiaiennnee 37

GND TEES cccseetictinssintcitssienianiaemnnipneina 4, 37

Statutes

United States Code:

II Gi SI ccscsinscstnsischissitshinicnieassietiinenineliiiaihidaidinbasiasiate 4

Illinois Revised Statutes:

Che, BE, BR. TN OD cccccosecvecesescncsensesccencansansrne 5, 10, 15, 27

te FY FS, oS 26

Administrative Regulations

Rules and Regulations of the Chicago (Illinois) Fire

Department:

ac ek

Miscellaneous

Prentice-Hall] Public Personnel Administration:

Policies and Practices for Personnel, vol. 2, no. 4,

ae BG RES ee 39

In Tus

Supreme Court of the United States

Octoser Term, 1975

No. 75-130

ROBERT J. QUINN, individually and as Commissioner

of the Chicago Fire Department,

Petitioner,

vs.

FRANCIS MUSCARE,

Respondeni.

On Writ Of Certivrari To The United States

Court Of Appealr For The Seventh Circuit

BRIEF FORK PETITIONER

OPINIONS BELOW

The findings of fact, conclusions of law and judgment

of the district court in favor of the petitioner are un-

reported, but are reproduced in the Appendix (pp. 146-

153).

~~

The opinion of the court of appeals, filed on March 21,

1975, reversing the judgment of the district court, is

reported at 520 F.2d 1212 (7th Cir., 1975), and is

reproduced in the Appendix (pp. 158-166).

JURISDICTION

The judgment of the court of appeals was entered on

May 21, 1975 (App. 167). On June 17, 1975, the court of

appeals entered an order denying the petition of defen-

dant Quinn for a rehearing with suggestions for rehear-

ing in banc (App. 167, 168).

The petition for a writ of certiorari was filed on July

24, 1975. 44 L.W. 3069. It was granted on October 14,

1975. 44 L.W. 3222.

The jurisdiction of this Court rests on 28 U.S. Code

§ 1254(1).

A petition for a writ of mandamus, based on the issue

of the need to convene a three-judge district court

herein, was filed by petitioner together with his petition

for a writ of certiorari. This petition for mandamus was

denied by the Court on October 14, 1975. 44 L.W. 3222.

It is assumed in this brief that the question of a three-

judge district court was disposed of by that denial of

mandamus.

= =

QUESTIONS PRESENTED

(1) Whether, in suspensions for 30 days or less of

civil service employees, due process is satisfied by provi-

sion for post-suspension hearings, with the right to back

pay and deletion of the suspension from the employee’s

service record, in the event the charges against the

employee are disallowed.

(2) Whether a civil service employee, who has been

accorded a suspension of 30 days or less, can complain

that he has been denied due process if he fails to exer-

cise his statutory right to a post-suspension hearing.

(3) Whether, in the event due process requires a pre-

suspension hearing, any administrative hearing must be

held if the civil service employee has actual knowledge

of the charges against him, knows that he is in violation

of a departmental rule and that the charge is based on

that violation, and where the only disputed question is

whether the rule is constitutional.

(4) Whether a city fire department can con-

stitutionally regulate the dress and hair-style of its

firefighters (1) to ensure the efficient operation of gas

masks that all firefighters are required to wear in cer-

tain emergencies, (2) to present a well-groomed and

uniform appearance or image to the public, or (3) to

promote discipline in a paramilitary setting.

(5) Whether a city fire department can con-

stitutionally promulgate general safety rules binding on

all members of the department, even though such rules

may not be actually necessary with respect to certain in-

dividual members.

cation

CONSTITUTIONAL PROVISIONS,

STATUTES AND ADMINISTRATIVE

REGULATIONS INVOLVED

Constitution Of The United States

Amendment I:

“Congress shall make no law ... abridging the

freedom of speech .. .”

Amendment V:

“(Njor shall any person ... be deprived of life,

liberty or property without due process of law.”

Amendment XIV:

“. . . No State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty or property,

without due process of law; nor deny to any person

— its jurisdiction the equal protection of the

aws.”

United States Code

Title 42, § 1983:

“Every person who, under color of any statute, or-

dinance, regulation, custom or usage, of any State

or Territory, subjects or causes to be subjected, any

citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges or immunities secured by the Con-

stitution and laws, shall be liable to the party in-

jured in an action at law, suit in equity, or other

proper proceeding for redress.”

—§—

Illinois Revised Statutes 1973

Chap. 24, par. 10-1-18

“Except as hereinafter provided in this section, no

officer or employee in the classified civil service of

any municipality who is appointed under the rules

and after examination, may be removed or dis-

charged or suspended for more than 30 days, except

for cause upon written charges and after an oppor-

tunity to be heard in his own defense . . . Nothing

in this Division 1 limits the power of any officer to

suspend a subordinate for a reasonable period, not

exceeding 30 days except that any employee or of-

ficer suspended for more than 5 days or suspended

within 6 months after a previous suspension shall

be entitled, upon request, to a hearing before the

civil service commission concerning the propriety of

such suspension. .. .”

Rules and Regulations of the Chicago (Illinois)

Fire Department

Section 51.133:

“All members of the Chicago Fire Department

shall present a clean and proper appearance in per-

sonal care and attire at all times. The face shall be

clean-shaven, except that a non-eccentric mustache

is permissible. Mustaches shall not extend beyond a

line perpendicular to the corner of the mouth and

the full upper lip must be readily visible.

“Sideburns shall be trimmed short and shall be

no lower than a line from the middle of the ear.

“Hair shall be worn neatly and closely trimmed,

and the hair outline shall follow the contour of the

ear and slope of the back of the neck. It will be

gradually tapered overall in order to present a neat

appearance.”

wiles

Part VI:

“OFFENSES, PROCEDURES AND PENALITIES IN

RESPECT TO VIOLATIONS OF THE RULES AND

REGULATIONS, PRACTICES AND PROCEDURES

OF THE CHICAGO FIRE DEPARTMENT.”

*x** *

Section 61.006:

“Disobedience of Orders.”

callin

STATEMENT

The Facts

Respondent Francis Muscare has been a firefighter

with the Chicago Fire Department since 1955. His rank

is that of lieutenant.

From October, 1973, until the trial of this case in

March, 1974, Muscare wore a beard (App. 5, 18). He

did this despite a department rule, the existence of

which he admitted he was well aware, limiting the

facial hair which may be worn by firefighters to at most

a small moustache and precisely limited sideburns, with

no beard (App. 125).

Some three years before, Muscare had worn the same

sort of moustache and beard. He had been ordered to

shave off the beard, but refused (App. 123). In conse-

quence, at a uniform inspection, his superior officers

declined to inspect him and apparently he then at length

brought himself into compliance by shaving.

The following year Muscare again grew a beard (App.

124). This time he was summoned before a departmental

board, where he was told by a fire chief that he did not

know the meaning of discipline and was commanded to

shave off his beard before reporting for duty the next

day. Muscare reluctantly complied on that occasion also

(App. 125).

But in December, 1973, when Muscare appeared with

his company at the Chicago Fire Academy for instruc-

tion in a two-day course in the use of self-contained

breathing apparatus (safety masks), he was again wear-

ing a beard. The instructor, Firefighter Leonard John-

son, later testified that he at that time, on the basis of

atin:

instructional material (App. 60), informed Muscare that

facial hair should not be worn with the safety masks

(App. 53). Muscare disputed this, contending that Boston

and New York permit firemen to wear “long hair,

beards and moustaches.” However, he offered no proof of

that (App. 53, 67, 68).

As Instructor Johnson explained at the trial (App. 62),

the self-contained breathing apparatus consists of an air

cylinder, a face piece, a breathing tube and the harness

on which the tank is mounted. The whole apparatus can

be carried on a man’s back. The cylinder is charged to

2216 pounds of pressure per square inch and the gas

mask can function for 30 minutes. The gas masks cost

about $400 each (App. 100).

Each member of the class was expected to put the ap-

paratus on, charge it and test it to determine whether he

was getting a good facial fit with the appa: etus charged

and with the cylinder and regulator valves open, allow-

ing the high pressure air to flow up through the

regulator into the face piece (App. 53, 54). Johnson

testified that not only facial hair, but eyeglasses, den-

tures, oddly shaped faces and sores and boils could in-

terfere with a fireman getting a proper seal (App. 73).

Johnson stated he could tell, by watching a fireman do

this, whether he had succeeded in obtaining a tight

facial seal. (App. 54).

Muscare failed to charge or test his apparatus in the

class at the Fire Academy (App. 54, 56).

On the second day of the class, each student was ex-

pected to walk up to the fifth floor of the Fire Academy

and then back down to the first floor, with a gas mask

on, sealed and functioning (App. 55, 56), Muscare did

not do this and, in fact, did not even put the apparatus

on (App. 56).

—>—

Instructor Johnson stated at the trial that he did not

know whether Muscare, while wearing his beard, could

get a good seal on a gas mask, because Muscare did not

put the gas mask on and a gas mask can be tested only

by a man putting it on (App. 71, 72).

After the class was concluded, Instructor Johnson

reported Muscare’s conduct in the class to the

drillmaster (App. 70, 71). According to his complaint,

Muscare was “warned” in December, 1973 (App. 5) “that

he would not be permitted to continue working as a

firefighter unless he shaved his beard off.” A few days

later, Muscare was advised that charges had been filed

against him with the administrative authorities of the

Fire Department (App. 19). But, because of the serious

illness of the superior officer in whose jurisdiction it lay

to determine what disciplinary action, if any, should be

taken, the charges against Muscare were not acted upon

until February 27, 1974, by which time they had been

reviewed and authorized by the Fire Commissioner

(App. 105, 108, 110). Meanwhile Muscare continued to

wear a beard.

Muscare was disciplined not only for violating the

facial hair provisions of Section 51.133 of the Rules and

Regulations of the Chicago Fire Department, but also

for refusing to carry out a direct lawful order of his

superior officers, in contravention of Section 61.006 of

the same Rules and Regulations.

On February 27, 1974, three superior officers of

Muscare personally came to the fire station where he

was on duty and informed him he had been suspended

for 29 days, effective immediately.

Muscare did not exercise his statutory right, under I[I-

linois 'aw, to a hearing before the civil service commis-

~"

sion. Illinois Revised Statutes, 1973, ch. 24, par. 10-1-18,

provides:

“. . [AJny employee or officer suspended for more

than 5 days or suspended within 6 months after a

previous suspension shall be entitled, upon request,

to a hearing before the civil service commission con-

cerning the propriety of such suspension... .”

In the event the civil service commission finds the

suspension unwarranted, the employee is entitled to

reinstatement, back-pay and erasure of the suspension

from his employment record.

Instead of seeking this administrative hearing,

Muscare, on March 11, 1974, filed the instant civil

rights action under 43 U.S.C. § 1983.

The Trial In The District Court

At the trial on March 19, 1974, Muscare rested on his

complaint and supporting affidavit (App. 51). The City

put in almost all the testimony (App. 51-121). Muscare

then testified briefly in an attempt at rebuttal (App.

121-131).

Acting Chief Fire Marshall William F. Foley of the

Chicago Fire Department was a witness for the defense

(App. 99-121; 131-136). He explained that the depart-

ment has used self-contained breathing apparatus, or

gas masks, since 1958 (App. 100, 104). They are

employed particularly in rescue operations in a hostile

environment and in an irascible type of atmosphere con-

taining highly toxic, poisonous gas. They are usually

worn at the direction of the company officer. At present

there are two such gas masks on each hook and ladder

truck. All uniformed members of the Chicago Fire

Department are required to be proficient in the use of

such self-contained breathing apparatus (App. 103).

_)

Safety, not appearance, Chief Foley declared, is the

rationale for the departmental rule restricting the facial

hair that may be worn by uniformed firefighters to

small, precisely limited sideburns, with no beard (App.

118). Facial hair in excess of these limitations, Chief

Foley explained, interferes with the operation of the gas

masks. In firefighting mistakes can be fatal.

A fire department is a paramilitary organization,

Chief Foley also stated, because the department has

levels of rank and firemen are expected to carry out

orders. The fire department is a uniformed force, and

cleanliness and neatness are a part of being uniformed.

Another witness for the defendant was Al Lundin, an

officer of the Mine Safety Appliance Company of

Pittsburgh, manufacturers of personal protective devices

and particularly of self-contained breathing apparatus

used by the Chicago Fire Department. Mr. Lundin also

taught a course in the use of such safety devices at the

National Safety Council in Chicago, where he gave in-

struction in the basics of respiratory protection to a stu-

dent body of safety directors of various companies

located throughout the United States (App. 82, 83). Lun-

din declared it to be his expert opinion that facial hair

would adversely affect the obtaining of a facial seal on

self-contained breathing apparatus of the types used by

the Chicago Fire Department. Lundin explained that a

perfect seal is possible, so that, during tests with various

odorants, “it feels like there is absolutely no leakage at

all.” During tests the individual fireman is expected to

be able to carry on normal activities, such as talking

and coughing, with his face sealed in the mask.

But although the gas masks are designed to fit all

faces, the differences in facial sizes and shapes, Lundin

elucidated, can result in facial hair having less effect on

= =

obtaining a seal for some individuals than others. As he

said, “it is very difficult to form a seal to the face under

the best conditions, and facial hair is going to endanger

that,” and, as the fireman engages in various strenuous

activities during the course of a fire, the seal is apt to be

more easily broken if facial hair is worn.

Therefore, it was Lundin’s expert opinion, that facial

hair would adversely affect the obtaining of a facial seal

on self-contained breathing apparatus of the types used

by the Chicago Fire Department (App. 86-88).

Muscare testified briefly by way of rebuttal (App. 121-

131). He stated he had been a member of the Chicago

Fire Department almost 20 years. Muscare admitted he

was familiar with the fire department regulation con-

cerning facial hair and that he had read it at roll call.

In fact, he volunteered the information that he had twice

in the past been formally reprimanded for wearing a

beard in violation of the rule, and that on each occasion

he had complied by shaving it off.

Muscare affirmed he had tested the apparatus while

wearing a beard and that he had gotten a good fit and

the apparatus worked. But he did not attempt to

validate that assertion by a demonstration in court.

Muscare presented no expert witnesses on gas masks.

Nor did he put any other firemen on the witness stand

to recount their experience with the department’s gas

masks while wearing facial hair.

The Opinion Of The District Court

At the conclusion of the hearing on a preliminary in-

junction on March 19, 1974, District Judge Frank

McGarr, in denying the application, entered oral find-

ings of fact and conclusions of law (App. 146-150),

which he later made applicable to his denial of a perma-

nent injunction on March 29, 1974 (App. 151-153).

The district judge affirmatively recognized that the

wearing of facial hair is a form of expression protected

by the First Amendment (App. 147). He found that

Muscare’s appearance, as depicted in the photographs he

introduced into evidence as Plaintiff's Exhibits A and B

was substantially identical with his appearance in the

courtroom (App. 147, 148). The court found that

Muscare’s small moustache was not in violation of

departmental regulations, but that his full goatee, or

small beard, was “clearly prohibited” by Regulation

51.133 of the Chicago Fire Department.

The question presented, the court stated, is “whether

this regulation is a violation of the plaintiff's rights to

First Amendment expression or whether, in fact, it is a

reasonable curtailment of his rights for some justifiable

and good reason which the Department advances” (App.

147, 148).

The district court did not regard as determinative the

evidence as to whether Muscare’s facial hair actually did

or did not interfere with his effective personal use of a

gas mask. The court declared (App. 148):

“What we have before us is the validity of a regula-

tion and its reasonableness generally. And the ques-

tion of whether it is reasonable in terms of the in-

dividual context, which was raised here, I don’t

think is relevant.”

The safety reason for the regulation, which the depart-

ment advanced in its justification, the court found ade-

quate to sustain the regulation’s constitutionality—

whether or not safety was the basic reason for the adop-

tion of the regulation. The district court concluded that

the regulation is merely minor abridgement of personal

unfit

liberty, which is justified by safety requirements (App.

149).

The court expressly refrained from assessing the sub-

stantiality of the public image and the paramilitary dis-

cipline rationales the department also urged.

Nor did the district court rule on the question of

whether the department’s suspension procedure provid-

ed due process. That issue was raised in the complaint

(App. 7). But the plaintiff offered no evidence in support

of that contention and did not urge that issue at the

trial.

However, in a motion, filed March 26, 1975, for recon-

sideration or amendment of the judgment (App. 144,

145), Museare argued that “even where the state can

reasonably assert that a legislative regulation accurately

applies to most people falling into a classification, when

a case-by-case determination is available, the due

process clause requires such an individualized deter-

mination” (App. 141-143). Averring (App. 143) that

“Isjuch a test is not merely available; it is currently in

use,” counsel for plaintiff contended that “where, as

here, the general rule invades a fundamental con-

stitutional right, such a general regulation is un-

constitutional.”

The motion also maintained (App. 144) that Muscare

had been denied due process, on the basis of his un-

substantiated assertion that he had been “cut off from

his job” “|w]ithout notice of the charges against him,

without an opportunity to be heard in his own defense.”

On March 29, 1974, the district court denied plaintiff's

motion for reconsideration or amendment of its judg-

ment (App. 153).

= =

The Per Curiam Opinion Of the Seventh Circuit

The per curiam opinion of the Court of Appeals for

the Seventh Circuit, filed May 21, 1975 [App. 158-166],

refrained from attempting to resolve the question of the

constitutionality of the fire department’s regulation of

the facial hair of firemen, on the ground that it found

Muscare had been “suspended without procedural due

process” (App. 160).

The court of appeals reached this result despite its

findings (App. 161) that Muscare’s superior officer,

Chief Morgan, had in December, 1973, “warned him

that he would not be permitted to continue working as a

firefighter unless he shaved off his beard” and that, a

few days thereafter, Muscare “was informed that

charges had been filed against him with the ada-

ministrative authorities.” The opinion also found (App.

161) that two and a half months elapsed after that

before Muscare was suspended.

Also disallowed in the opinion was the constitutional

adequacy of the provision in Illinois Revised Statutes,

1973, ch. 24, par. 10-1-18, for a post-conviction hearing

before the civil service commission concerning the

propriety of the suspension, available in cases of suspen-

sions of more than 5 days—a right Muscare had failed to

exercise.

The court of appeals ruled that “post-suspension

review is insufficient,” although it specifically admitted

(App. 162) that the Illinois Supreme Court had recently

held to the contrary in Kropel v. Conlisk, 60 Ill. 2d 17

(decided January 30, 1975).

The per curiam opinion of the court of appeals stated

(App. 163) that it considered the decision of this Court in

Goss v. Lopez, 419 U.S. 565 (decided January 22, 1975),

—6—

determinative in resolving the instant case. Recognizing

that Muscare had a protected property interest in his

employment, the court of appeals saw fit to apply the

rationale of Goss in the following terms (App. 163):

“In the circumstances of America’s high schools, the

court thought that notice, an explanation of the

evidence the authorities have, and an opportunity to

present his side of the story were sufficient to

protect the student, and we think that at least this

much is required in the circumstances of a public

employee’s suspension.”

In addition, the per curiam opinion (App. 164) found

confirmation of its opinion in Arnett v. Kennedy, 416

U.S. 134 (1974).

However, the opinion did recognize (App. 165) that, in

a wide variety of emergency situations, “where harm to

the public is threatened, and the private interest is

reasonably deemed to be of less importance, an official

bedy can take summary action pending a later hearing.”

But the court of appeals made no attem; . to clarify in

what sort of specific situations disciplinary action could

be taken without a pre-suspension hearing.

The City’s petition for rehearing, with suggestions for

rehearing in banc, was duly filed on June 4, 1974, and

denied on June 17, 1975 (App. 167, 168).

On June 25, 1975, Circuit Judge Stevens entered an

order staying the mandate of the Seventh Circuit until

July 24, 1975 (App. 168).

The petition for certiorari was filed on the latter date

and granted on October 14, 1975 (App. 170).

= =

SUMMARY OF THE ARGUMENT

Respondent Muscare is a firefighter employed by the

Chicago Fire Department. That agency has a

departmental rule forbidding its firefighters to wear

beards. The reason for the rule is that beards interfere

with the functioning of the safety masks firefighters are

required to wear in emergencies.

Muscare admitted that he was well aware of the rule,

that he had twice before during the preceding three

years worn a beard in violation of the rule, and that he

reluctantly had twice shaved it off on being warned by

his superiors that he would be disciplined if he did not

do so. But from October, 1973, until March, 1974, he

wore a beard in violation of the rule for a third time and

refused to remove it despite warnings that he would be

disciplined because of it and that charges were being

prepared against him. He contended that the rule was

invalid because it violated his First Amendment right to

determine his own appearance. As a result he was

suspended for 29 days.

He did not exercise his right, provided by Illinois

statute, to an administrative hearing, with recovery of

back pay in the event he was vindicated. Instead, he

filed this civil rights action.

In a hearing on Muscare’s application for an injunc-

tion, the district court ruled that the fire department

rule against beards was valid as a safety measure and

denied both temporary and permanent injunctions.

On appeal, attention was focused on the issue of

procedural due process. The court of appeals reversed

the judgment below, ruling that Muscare had been

="

denied due process because he had not been accorded a

hearing prior to being suspended. It disallowed the con-

stitutional sufficiency of the administrative procedure

provided by state statute in short suspensions, pursuant

to which Muscare had been suspended.

Under the decisions of this Court, such broadside

generalization and indiscriminate application with

respect to due process, as the court of appeals has here

indulged in, are improper. The essence of due process is

fairness. Due process does not require any particular

form of procedure. Due process is not a technical con-

ception with a fixed content, unrelated to time, place

and circumstance. In its ultimate analysis, due process

is respect, enforced by law, for that feeling of just treat-

ment which has been evolved through centuries of

Anglo-American constitutional history and civilization.

At most, Muscare’s rights in his job are not more than

property rights. Under the decisions of this Court,

where only property rights are involved, due process

does not require a hearing in advance of, and not merely

after, action taken by a governmental agency. Delay in

the determination of property rights is not uncommon

where it is essential that governmental needs be im-

mediately satisfied.

Muscare was disciplined not only for violating the

facial hair rule, but for his open and contemptuous in-

subordination to his superior officers. Such disruptive

behavior by an employee has an adverse effect on fire

department discipline and efficiency. The governmental

interest in being able to act expeditiously in such cases

is substantial and should be upheld.

=

= S

The opinion of the court of appeals is in conflict with

the decisions of this Court in Arnett v. Kennedy, 416 U.S.

134 (1973), and Goss v. Lopez, U.S. (1975), and the ruling

of the Illinois Supreme Court in Kropel v. Conlisk, 60 Ill.

2d 17 (1975).

The ruling of the district court, upholding the con-

stitutionality of the facial hair regulation of the Chicago

Fire Department is sound, in accord with the great

weight of authority, and should be upheld. The City

produced expert witnesses who testified to the need for

such a rule as a safety measure to safeguard the ef-

ficient functioning of gas masks which firefighters must

wear in emergencies. Muscare presented no expert

testimony. He was corroborated by no other firemen. He

did not even try to demonstrate in court that he per-

sonally could obtain a good seal on a gas mask while

wearing a beard.

——

ARGUMENT

I.

DUE PROCESS DOES NOT REQUIRE :

SUSPENSION HEARINGS. ’ oe

A.

The Opinion Of The Seventh Circuit Is Based On Its

Misreading Of Two Recent Decisions Of This

Court: Arnett v. Kennedy And Goss v. Lopez.

a ) The Seventh Circuit apparently believed that

Goss v. Lopez, 419 U.S. 565 (1975), supported the result

it desired to reach in this case. The per curiam opinion

declares (520 F.2d 1212, at 1215; App. 163):

“Though Goss is a ‘school’ case, it nevertheless

points the way to our resolution of the present case.”

In like manner, in denying the petition for rehearing,

the court of appeals attributed its conclusion to Goss

(520 F.2d at 1216), which it again interpreted as man-

dating a pre-suspension hearing.

Goss, however, actually stands for the proposition that

a public school student cannot be suspended or expelled

unless he is granted a hearing either before or promptly

after suspension or expulsion. In so ruling the court was

affirming a three-judge district court, which had held

that the plaintiff students had been denied due process

because they had been suspended without a hearing

before or after. And Justice Powell, in dissenting, so un-

derstood the opinion of the majority in Goss, which he

described in the following terms (419 U.S. at 585):

“The court . . . justifies this unprecedented intrus-

tion into the process of elementary and secondary

PO ete

_—

education by identifying a new constitutional

right: the right of a student not to be suspended

for as much as a single day without notice and a

due process hearing either before or promptly

following the suspension.”

Indeed, the majority opinion of Justice White in Goss

recognized (419 U.S. at 577) that:

“ .. [T]he interpretation and application of the

Due Process Clause are intensely practical matters

and... ‘the very nature of due process negates any

concept of inflexible procedures universally

applicable to every imaginable situation.’ Cafeteria

Workers v. McElroy, 367 U.S. 886, 895 (1961).”

Actually Goss, in the context of the school situation,

came to a result closely paralleling the conclusion, in an

employment context, of the Illinois Supreme Court in

Kropel v. Conlisk, 60 Ill. 2d 17 (1975), which interpreted

the Illinois statute as requiring a hearing, if the

employee requests it. promptly after the suspension, in

any case of the suspension of a civil service employee for

30 days or less, with the right to back pay and correc-

tion of his employment record, if the employee is vin-

dicated.

2. The opinion of the court of appeals also

endeavored to find this Court’s disposition of Arnett v.

Kennedy, 416 U.S. 134 (1974), confirmation of its own

analysis of the due process question presented here. That

effort was based on a misreading of Arnett v. Kennedy,

with which the opinion of the Seventh Circuit is in

direct conflict.

In Arnett, it will be recalled, a majority of five justices

held that due process is satisfied by administrative

procedures which provide for a post-removal hearing,

with the right to reinstatement and back pay if the

removal decision is later found to have been wrongful.

SE

lien

Kennedy, was a non-probationary federal civil service

employee, who was dismissed from his position in the

Office of Economic Opportunity for allegedly making

recklessly false and de amatory statements about other

employees of that agency. It is true that he was by

federal statute afforded pre-suspension administrative

procedures, including 30 days prior notice, access to the

derogatory material against him, and the right to res-

pond both orally and in writing. But Kennedy contended

that due process required a trial-type hearing, including

the right to counsel and to present witnesses in his own

behalf, together with the right to cross-examine adverse

witnesses. He brought a civil action for declaratory and

injunctive relief to enforce his theory of due process. A

three-judge district court in the Northern District of II-

linois, in the jurisdiction of the Seventh Circuit, agreed

with him.

This Court rejected Kennedy’s contention and reversed

the district court in a 5-4 decision. Of the five justices in

the majority, a plurality of three—the Chief Justice and

Justices Stewart and Rehnquist—were of the opinion

that the employees’ rights were limited to those afforded

by the Lloyd-LaFollette Act of 1915 (5 U.S.C. § 7501),

which expressly states “no examination of witnesses nor

any trial or hearing shall be required except in the dis-

cretion of the officer making the removal.” The plurality

of three, speaking by Justice Rehnquist, felt that the

Due Process Clause does not require any pre-removal

procedure beyond that embodied in whatever statute

created the expectancy of job retention.

This holding was in accord with Board of Regents v.

Roth, 408 U.S. 564 (1972), which concerned, however,

state, not federal, employment. It is of interest in the

ease at bar that Chief Justice Burger, in concurring in

eoliin

Roth, cited his concurring opinion in Perry v. Sinder-

man, 408 U.S. 593 (1972), where he stated (at 603, 604),

that in cases involving state employees, the point should

be underscored that the relationship between a state in-

stitution and one of its employees is essentially a matter

of state concern and state law, and that it is only when

the state employee has employment rights under state

law that he, then, in turn has a right guaranteed by the

Fourteenth Amendment to some form of administrative

hearing on the cause for curtailment of his employment

rights.

In Arnett, two justices—Justices Blackmun and

Powell—reached the same conclusion as the plurality

“on the basis of different reasoning” (416 U.S. at 164).

Balancing the property rights of the _ individual

employees in their jobs against the interest of the

government in having the discretion expeditiously to

remove employees who hinder efficient operation, they

held that the due process requirements of notice and

hearing were satisfied by a post-removal evidentiary

hearing, with reinstatement and back pay should the

removal decision be proven to have been wrongful.

In rejecting the contention that due process requires a

pre-removal hearing, Justice Powell observed (416 U.S.

at 168):

“Prolonged retention of a disruptive or other un-

satisfactory employee can adversely affect discipline

and morale in the work place, foster disharmony,

and ultimately impair the efficiency of an office or

agency. Moreover, a requirement of a prior eviden-

tiary hearing would impose additional ad-

ministrative costs, create delay, and deter

warranted discharges. Thus, the Government’s in-

terest in being able to act expeditiously to remove

an unsatisfactory employee is substantial.”

—24—

In the case at bar, the Seventh Circuit apparently

thought that the two concurring justices in Arnett—

Justice Powell and Justice Blackmun—“concurred in the

result solely because they believed that the statute’s

provision of notice and opportun'ty to be heard prior to

discharge satisfied the minimal requirements of con-

stitutional due process” (Muscare v. Quinn, 520 F.2d

1212, at 1216, fn. 4 (1975). (Empiiasis supplied.) But

Justice Powell’s concurring opinion in Arnett, in addi-

tion to the language already quoted, concerning the need

of the government to act expeditiously in removing an

unsatisfactory employee, contains the following state-

ment in footnote 4 (416 U.S. at 168):

“(T]he fact that some federal agencies may have

decided to hold evidentiary hearings cannot mean

that such a procedure is constitutionally mandated.

The Federal Government’s general practice to the

contrary argues that efficiency is in fact thought to

be adversely affected by prior evidentiary

hearings.”

A sixth member of the Court, Justice White, was of

the opinion that, while a property interest in public

employment is created by statute, the requisites of due

process are defined, not by statute, but by the Constitu-

tion. He was of the view that due process requires a

hearing at some time before the discharge becomes

final, but that this need not be a trial-type hearing and

it need not occur before the discharge becomes effective.

It is sufficient if there is some kind of a hearing at some

time (416 U.S. at 178). However, Justice White conclud-

ed that Kennedy had been denied due process because

the hearing officer was the person Kennedy was charged

with having slandered. On the other hand, the con-

curring opinion considered due process not to require an

impartial pre-removal hearing officer, for the reason

eR en ee

_ =

that “an impartial decision-maker is provided at the

post-removal hearing where the employee’s claims are

finally resolved” (416 U.S. at 170, fn. 5).

Three justices—Douglas, Brennan and Marshall—

wholiy dissented, being of the opinion that due process

requires a trial-type pre-discharge hearing.

Under Arnett, advance notice and the right of the

employee to make an informal written presentation

before discharge becomes effective do satisfy due

process, but they are not constitutionally mandated. We

submit that a careful reading of the several opinions in

Arnett supports this interpretation. So does the very re-

cent decision of this Court in Boehning v. Indiana State

Employees Assn., Inc., ..... USS. ....., 44 L.W. 3275 (decid-

ed November 11, 1975), in which this Court reversed the

Seventh Circuit with the following comment:

“Although the question of respondent’s federal

constitutional right to a hearing at some time in

connection with a discharge for cause may already

have been resolved in respondent’s favor in Perry v.

Sinderman, 408 U.S. 593 (1972), Board of Regents v.

Roth, 408 U.S. 564 (1972), and Arnett v. Kennedy,

416 U.S. 134 (1973), the tenured employee’s right to

a pre-removal hearing has been determined by this

Court only in the context of a statute providing

notice and an opportunity to respond in writing

before removal coupled with a full hearing after

removal. See concurring opinion of Powell, J.,

Arnett v. Kennedy, supra, at 164, 170.”

De facto however, respondent Muscare had at least as

much notice and opportunity to state his case as the

employee in Arnett v. Kennedy, which held that due

process was there satisfied. Twice before, Muscare had

—26—

been directly ordered to bring himself into conformity

with the departmental regulation of facial hair, and he

had twice complied by shaving. The third time he stated

his opinion that the rule was unconstitutional and.

deliberately refused to comply.

For several months before his suspension became

effective, Muscare had full knowledge that charges

against him were being prepared. He knew exactly on

what conduct of his the charges were based. Despite

this, he made no effort either to persuade his superiors

of the justice of his cause or to bring himself into confor-

mity with the regulation. Muscare was treated fairly; he

was accorded due process.

The Opinion Of The Seventh Circuit Is In Direct Con-

flict With The Ruling Of The Illinois Supreme Court in

Kropel v. Conlisk, Which Is In Accord With The Decisions

Of This Court.

The opinion of the court of appeals in the case at bar

is in direct conflict with the opinion of the Illinois

Supreme Court in Kropel v. Conlisk, 60 Ill. 2d 17 (1975),

as the court of appeals itself recognized (520 F.2d at

1215; App. 162, 163).

In Kropel the Illinois Supreme Court authoritatively

reviewed the state civil service statutory provisions

relating to employee suspensions. The court was there

directly concerned with Illinois Revised Statutes (1973)

ch. 24, par. 10-1-18.1, which has to do solely with police

officers in municipalities with populations of 500,000 or

more (i.e. Chicago) and which by its terms permits

Chicago police officers to be suspended for any period of

30 days or less without a hearing. On the other hand the

general statewide civil service statute (Illinois Revised

Statutes (1973), ch. 24, par. 10-1-18) grants all civil ser-

vice employees of Illinois municipalities, with the excep-

tion of Chicago police officers, suspended for 30 days or

less but for more than five days, or twice or more within

six months, the right to a post-suspension hearing, upon

request, with the right to back pay, if vindicated.

The Illinois Supreme Court ruled that par. 10-1-18,

the general civil service provision, established a

statewide policy of granting all civil service employees

of Illinois municipalities, if suspended for any period of

30 days or less, the right, upon request, to a post-

suspension hearing, with the right to recover back pay,

if vindicated, that this statewide policy extended to

Chicago police officers, and that it satisfied due process.

In thus liberally construing these state statutes, the II-

linois Supreme Court was exercising its constitutional

power as the final interpreter of Illinois law. It did so

expressly in order to safeguard the validity of the

legislation in the light of both the state and federal con-

stitutions (60 Ill. 2d at 19, 26). And in so holding the II-

linois Supreme Court reached the same conclusion as

that of the majority of the justices of this Court in Arnett

v. Kennedy, 416 U.S. 134 (1974), who ruled that due

process does not require a pre-discharge hearing (a for-

tiori, does not require a pre-suspension hearing).

Due process is amply safeguarded in short civil ser-

vice suspensions by adherence to the rule of Arnett v.

Kennedy and Kropel v. Conlisk.

Common sense suggests that most civil service suspen-

sions are for short periods of time—most commonly, for

but a few days or even only one day. Common sense

suggests that most such suspensions are justified and

—28—

that, if mistakes occur, they will usually be corrected by

informal means. Usually, indeed, the employee does not

contest the fairness of the discipline and accepts the

penalty without a hearing. Requiring the municipality

affirmatively to establish the correctness of every in-

vocation of managerial authority before meting out any

suspension, no matter how brief, would place a burden

on the municipality disruptive of government efficiency.

It can be presumed that it was in view of these con-

siderations that, in Kropel, the Illinois Supreme Court

concluded (60 Ill. 2d at 36, 37):

“It is clear from all the statutes and rules set

forth above that a major difference between a

suspension for less than 30 days and a suspension

for more than 30 days is that the latter requires a

hearing before the sentence can be imposed. In

effect, the department has the duty to go into a

hearing and prove its case for suspension of more

than 30 days. In the former instance, the burden is

on the employee to seek review and establish why

the suspension is unwarranted.”

C.

In Actual Fact, The Respondent Was Treated With

Fairness, Which Is The Essence Of Due Process.

The very nature of due process negates any concept of

inflexible procedures universally applicable to every im-

aginable situation. Cafeteria Workers v. McElroy, 367

U.S. 886 (1961).

It may well be that, from a management-employee

relations point-of-view, a pre-suspension hearing is, in

most instances, preferable to a post-suspension hearing,

provided the governmental agency has the available

resources. Even so, there are enough emergency

situations, which require immediate action, to preclude

—29—

the feasibility of an ironclad rule enforcing a require-

ment of pre-suspension hearings in all cases. In any

event, even if pre-suspension hearings are usually

preferable, that does not make them a constitutional im-

perative.

As Chief Justice Warren declared in Hannah v.

Larche, 363 U.S. 420, 442 (1960):

“Due process’ is an elusive concept. Its exact

boundaries are undefinable, and its content varies

according to specific factual contexts ... [Al]s a

generalization, it can be said that due process em-

bodies the differing rules of fair play, which

through the years, have become associated with

differing types of proceedings. Whether the Con-

stitution requires that a particular right obtain in a

specific proceeding depends upon a complexity of

factors. The nature of the alleged right involved,

the nature of the proceeding, and the possible

burden on that proceeding, are all considerations

which must be taken into account.”

The requirements imposed by the guarantee of due

process are not technical, nor is any particular form of

procedure required by it. Inland Empire District Coun-

eu, L.S.W.V. v. Mills, 325 U.S. 697, at 710 (1945). Thus,

this Court has held that procedural due process does not

necessarily require an opportunity for oral argument of

a question of law. Federal Communications Commission

v. WJR, the Goodwill Station, Inc., 337 U.S. 265 (1949).

In some situations, the Court has deemed oral argument

essential to a trial hearing. Londoner v. City and County

of Denver, 210 U.S. 373 (1908). In other situations, the

Court has ruled that oral argument may be dispensed

with. Morgan v. United States, 298 U.S. 468, at 481

(1936). Under the decisions of this Court, procedural due

process is “not a matter. . . for broadside generalization

—30—

and indiscriminate application.” Federal Com-

munications Commission v. WJR, 337 U.S. at 277.

In the case at bar the court of appeals has done just

that. It has engaged in “broadside generalization and in-

discriminate application.” It has ruled in so many words

that in the case of “[p]ublic employees facing temporary

suspensions for less than 30 days . . . due process re-

quires at a minimum that they be granted a hearing

prior to suspension where they may be fully informed of

the reasons for the proposed suspension and where they

may challenge their sufficiency” (App. 164).

This broadside generalization is in contradiction of the

principle laid down by this Court in Bowles v.

Willingham, 321 U.S. 5038, at 519, 520 (1944), where,

speaking by Justice Douglas, it held that due process

does not require that, when the legislature delegates a

task to an administrative agency, it shall always provide

for a hearing in advance of, and not merely after, any

action taken by such agency. That ruling was essentially

a reaffirmance of the rationale of Phillips v. Com-

missioner of Internal Revenue, 283 U.S. 589, at 596, 597

(1931), in which, speaking for a unanimous court,

Jus*'ce Brandeis said:

“Where only property rights are involved mere

postponement of the judicial inquiry is not a denial

of due process, if the opportunity given for the ul-

timate judicial determination of the liability is ade-

quate. Springer v. United States, 102 U.S. 586; Scot-

tish Union and National Insurance Co. v. Bowland,

196 U.S. 611. Delay in the 255 Ct. 345 judicial

determination of property rights is not uncommon

where it is essential that governmental needs be im-

mediately satisfied.”

onlin

In determining what is due process of law, regard

must be had to substance, not to form. Chicago, B. & Q.

R. Co. v. City of Chicago, 166 U.S. 226, at 235 (1897)

(Harlan, J.). In actual fact, respondent Muscare was

treated with fairness, which is the essence of due

process. Indeed, his flouting of a fire department rule,

well known to all Chicago firefighters, was dealt with in

a spirit of forebearance and patience. Muscare’s

deficiencies as an employee, in this respect, had a

history of some three years. He admitted that he was

familiar with the departmental safety regulation

governing facial hair and that he had read it at roll call

(App. 125).

According to his own testimony, Muscare had violated

that rule twice before and had twice acknowledged its

meaning and force by grudgingly complying, only to

violate it again. The third time his contemptuous

defiance of the regulation and the orders of his superiors

was open and unmistakable. A few days later he was

informed that charges against him had been prepared

and filed. That was in December, 1973, but, because of

the serious illness of the superior officer in whose

jurisdiction it lay to determine what disciplinary action,

if any, should be taken against him, the charges were

not acted upon until February 27, 1974 (App. 5).

The only actual issue in dispute was the constitutional

validity of the departmental facial hair rule. But that

could not be determined by an administrative hearing.

However, Muscare was disciplined not only for

violating the facial hair rule, but also for refusing to

carry out a direct lawful order of his superior officers

(to shave off his beard), in contravention of Section

61.006 of the Rules and Regulations of the Chicago Fire

—32—

Department. That Muscare violated his superior’s orders

is not disputed; the only issue in dispute as to that is

whether the orders were lawful.

It is also undisputed that, under Illinois law, Muscare

had a statutory right to a post-suspension hearing, with

the right to back-pay and correction of his employment

record, in the event he was vindicated. And it is un-

disputed that he failed to exercise that statutory right.

The procedure followed was appropriate to the case

and just to Muscare. He had every opportunity to defend

his rights. Such fairness of procedure “[is] due process

in the primary sense.” Brinkerhoff-Faris Trust and

Savings Company v. Hall, 281 U.S. 673, at 681 (1930).

As Justice Frankfurter stated, in concurring in Joint

Anti-Fascist Refugee Committee v. McGrath, 341 U.S.

123, at 162, 163 (1958):

“{D]ue process,’ unlike some legal rules, is not a

technical conception with a fixed content unrelated

to time, place and circumstances. Expressing as it

does, in its ultimate analysis respect enforced by

law for that feeling of just treatment which has

been evolved through centuries of Anglo-American

constitutional history and civilization, ‘due process’

cannot be imprisoned within the treacherous limits

of any formula. Representing a profound attitude of

fairness between man and man, and more par-

ticularly between the individual and government,

‘due process’ is compounded of history, reason, the

past course of decisions, and stout confidence in the

democratic faith which we profess. Due process is

not a mechanical instrument. It is not a yardstick.

It is a process. It is a delicate process of adjustment

inescapably involving the exercise of judgment by

those whom the Constitution entrusted with the un-

folding of the process.”

Il.

THE RULING OF THE DISTRICT COURT, THAT

LIMITING THE LENGTH OF A FIREMAN’S FACIAL

HAIR ON SAFETY GROUNDS, IS CONSTITUTIONAL,

SHOULD BE AFFIRMED BY THIS COURT.

The trial of this case in the district court related solely

to the question of the validity of the fire department rule

limiting the amount of facial hair that may be worn by

a firefighter. The district judge upheld the con-

stitutionality of the regulation as a reasonable safety

measure. This disposed of the only issue that would have

been in dispute if a pre-suspension administrative hear-

ing had been held, the only issue that would have been

in controversy if Muscare had exercised his statutory

right to a post-suspension hearing.

But the court of appeals failed to reach the question of

the validity of the facial hair regulation (App. 160),

because it concluded that Muscare had been “suspended

without procedural due process”. In effect, then, the

court of appeals vacated the judgment of the district

court as to the constitutionality of the fire department

rule, without disallowing the validity of the district

court’s findings and conclusion.

If this Court concludes that the court of appeals was

in error in reversing the judgment of the district court

on due process grounds, then it would appear that the

judgment of the district court, upholding the validity of

the rule, would thereby be reinstated.

There is no good reason why this case should be

remanded to the court of appeals, so that it can address

itself to the issue of the validity of the rule. If that were

done, it can safely be predicted that the losing party

affine

would seek certiorari in this Court. Such multiplication

of proceedings is not in the interest of judicial economy.

The decision of the district court that the rule limiting

the length of a fireman’s facial hair is constitutional is

in accord with the great weight of authority, as indeed

is clear from the opinion of the court of appeals itself

(520 F.2d 1213, fn. 2; App. 160), which cites Stradley v.

Andersen, 478 F. 2d 188 (8th Cir., 1973), Yarbrough v.

City of Jacksonville, 363 F. Supp. 1176 (M.D., Fla. 1973),

Akridge v. Barres, 321 A. 2d 230 (N.J. 1974), Hordowich

v. Board of Police and Fire Commissioners of Melrose

Park, 18 Ill. App. 3d 20 (1974), Michini v. Rizzo, 379 F.

Supp. 837 (E.D., Pa. 1974), affd 511 F. 2d 1394 (8rd

Cir., 1975), and Manco v. Town of Irvington, 313 A. 2d

219 (N.J. 1973), affd, 313 A. 2d 204 (N.J. 1974), as up-

holding the validity of such rules.

The various courts of appeal are not in accord as to

whether determination of one’s own appearance is a

right protected by the Constitution. See the summary in

Arnold v. Carpenter, 459 F. 2d 939, at 941 (7th Cir.,

1972), The Fifth, Sixth, Ninth and Tenth Circuits have

held there is no such constitutional right. Stevenson v.

Board of Education, 426 F. 2d 1154 (5th Cir., 1970), cert.

denied, 400 U.S. 957; Jackson v. Dorrier, 424 F. 2d 213

(6th Cir., 1970), cert. denied, 400 U.S. 850; King v.

Saddleback, 445 F. 2d 932, at 940 (9th Cir., 1971). On

the other hand, the First, Fourth and Eighth Circuits

have held that it is a right of constitutional dimension.

Richards v. Thurston, 424 F. 2d 1281 (1st Cir., 1970);

Massie v. Henry, 455 F. 2d'779 (4th Cir., 1972); and

Bishop v. Colaw, 450 F. 2d 1069 (8th Cir., 1971).

The Seventh Circuit appears to have vacillated. In

Breen v. Kahl, 419 F. 2d 1034 (7th Cir., 1969), cert.

—s—

denied, 398 U.S. 937, it ruled that the right to determine

one’s own appearance is a right protected by the Con-

stitution. But in Miller v. School District Number 167,

495 F. 2d 658 (7th Cir., 1974), the Seventh Circuit, by

Circuit Judge Stevens, declared (at 668):

“We therefore hold that even if the individual in-

terest in one’s appearance may be characterized as

an interest in liberty, the denial of public employ-

ment because the employer considers the applicant’s

appearance inappropriate for the position in ques-

tion, does not in and of itself represent a depriva-

tion that is forbidden by the Due Process Clause.”

But all the precedents, even those which most strongly

affirm that the right to determine one’s own appearance

is of constitutional dimension, recognize that that right

is subject to reasonable limitations in the interest of

public safety. Thus, in Dwen v. Barry, 483 F. 2d 1126

(2nd Cir., 1973), the court said (at 1130):

“We hold only that choice of personal appearance is

an ingredient of an individual’s personal liberty,

and that any restriction on that right must be

justified by a legitimate state interest reasonably

related to the regulation.”

For a definition of what constitutes “substantial

justification”, the Second Circuit in Breen drew upon

United States v. O’Brien, 391 U.S. 367 at 377 (1968),

which set the following criteria:

¥ [A] governmental regulation is sufficiently

justified if it is within the constitutional power of

the Government; if it furthers an important sub-

stantial governmental interest; if the governmental

interest is unrelated to the suppression of free ex-

pression; and if the incidental restriction on alleged

First Amendment freedom is no greater than is es-

sential to the furtherance of that interest.”

—3—

The O’Brien criteria are met by a fire department

regulation limiting the amount of facial hair that may

be worn by uniformed and disciplined firefighters who

must be able to wear gas masks. It furthers the impor-

tant and substantial governmental interest in public

safety, and the incidental restriction on First Amend-

ment freedoms is no greater than is essential to the

furtherance of the governmental interest in public safe-

ty.

As the Court stated in Michini v. Rizzo, 379 F. Supp.

837, at 848 (Ed. P 2. 1974), affd. 511 F. 2d 1394 (3rd

Cir., 1975), an action brought by discharged firemen to

establish their right to choose their own hairstyles and

personal appearance: -

“. .. [We] need not be detained by the dispute

between the parties as to whether the right of plain-

tiffs to wear their hair as they choose is a so-called

‘fundamental right’ which can be overridden only

by 2 compelling governmental interest’ or whether

it is 2 non-fundamental right which must defer to

any regulation bearing a rational relationship to a

legitimate governmental purpose.”

The fire department hair regulation is sustainable under

either theory. Safety is a compelling governmental in-

terest. The right and duty of officials to achieve max-

imum safety is determinative. A less restrictive alter-

native which will reduce infringement of a con-

stitutionally protected right will not do so. In Michini v.

Rizzo, 379 F. Supp. at 851, 852, the court also observed:

“...{[F]irefighting is one of the most hazardous oc-

cupations in America. The hazards of firefighting

are such that the issue of safety vel non is measured

in terms of not just cuts or bruises or even broken

limbs, but rather serious burns, asphyxiation, and

life itself. Moreover, the safety factor concerns not

—- =

only the individual fireman, but also his fellow

firefighters and others who may be trapped in a

burning building, for to the extent that a given

fireman is hindered in the performance of his

duties, the risk to others (and to property) is in-

creased. Accordingly, we cannot measure safety in

relative terms. The officials in charge of the

Department have a right-and a duty- to seek to

achieve maximum safety.” (Emphasis supplied.)

Yarbrough v. City of Jacksonville, 363 F. Supp. 1176

(M.D., Fla., 1973), was closely similar in its facts to the

case at bar—save that the plaintiff in Yarbrough put in

a far stronger case than Muscare. It was an action by a

discharged fireman, who was joined by a firemen’s

association. They challenged hair-cut regulations issued

by the fire chief. The plaintiffs invoked the First, Fifth,

Ninth, Tenth and Fourteenth Amendments. The

challenged regulations were similar to those attacked

here. They also provided that “[mjoustaches are per-

missible, provided they are neatly trimmed and non-

eccentric. The moustache shall not extend beyond a line

horizontal with the corner of the mouth.” (at 1178)

Sideburns could not exceed one inch in width and could

not extend beyond the bottom of the ear lobe. As for

beards, the Jacksonville regulation specified:

“Members shall be clean shaven upon reporting for

duty and shall remain clean shaven throughout

their tour of duty. Beards, bushy sideburns, and

eccentric hair styles are forbidden.” (at 1178)

On the basis of conflicting testimony—several in-

dividual firemen contradicting the statements by fire

department officials that beards, bushy sideburns and

long hair tend to interfere with the seal of the gas mask,

are prone to catch fire, and impair firefighting effec-

tiveness and the safety of firefighters and the public—

the court concluded (at 1179):

- =

“The crux of this discussion is simply that no con-

clusive determination can be made as to the effect

of longer hair styles on the personal safety of

firemen and this Court is unwilling to interfere

with the reasonable conclusions of the responsible

officers in the Fire Protection Division that there is

a rational relationship between longer hair and per-

sonal safety of its firemen.”

In Yarbrough the court found (at 1181) the cases in-

volving student hair regulations inapposite, because of

the responsibility assumed by firemen to protect the

public. It recognized (at 1179) that the effectiveness of a

fire department, like that of a police force, depends upon

carrying out orders and that it is necessary to maintain

discipline, as well as public respect. The court acknow!-

edged that those officials who have passed their working

lives in fire prevention and abatement possess far better

empirical judgment of what is essential to achieve an ef-

ficient and disciplined fire fighting force “than the of-

ficers themselves, the public or the predilection of in-

dividual judges.” (at 1182)

The grooming standards also make the identification

of firemen easier. This insures that the public will be

aware of fire department presence, that the commands

of the firemen will be obeyed. The regulation furthers a

substantial governmental interest, namely, the projec-

tion of an image that facilitates the effective functioning

of the fire department. Marshall v. District of Columbia,

sei F. Supp. ....., 48 L.W. 2418 (1975).

Muscare’s assertion (App. 53) that New York and

Boston have long hair and they are not concerned with

the problem of tight face seals was unsupported by any

citation of authority. As to New York, it is certainly in-

correct. The New York City Fire Department’s Health

and Safety Standards for Hair and Beards contain the

following provisions:

“Facial hair

“Moustaches are permitted, but shall conform to the

following: They must be neatly trimmed; they

must not extend beyond the corners of the mouth;

a Sm not extend beyond any portion of the up-

per lip.

“Beards or goatees are not permitted.

“All members shall be otherwise freshly shaven

when reporting fer duty.”

(Prentice-Hall Public Personnel Administration:

Policies and Practices for Personnel, Vol. 2, No.

4, p. 5 (July 30, 1974).)

In the instant case the Chicago Fire Department

presented extensive evidence in support of the

reasonableness of the departmental rule. Acting Chief

Fire Marshall Foley testified as to the use by

firefighters of gas masks with self-contained breathing

apparatus and as to the experience of the department

that beards and other facial hair beyond certain limits

are apt to interfere with sealing out the outside at-

mosphere and toxic fumes in the use of masks. This of-

ficial view of the fire department was corroborated by

the expert opinion of an instructor in the use of gas

masks at the National Safety Council School.

An instructor at the Chicago Fire Academy stated

that the only way to test the effectiveness of a gas mask

on a particular individual is to have the individual wear

it and try out its functioning. He testified that Muscare

on two different days had failed and refused to do this

while wearing his beard.

—40—

Muscare did not contradict that testimony. He merely

asserted that in his (unverified) experience his goatee

did not interfere with the seal of a gas mask on his face.

Muscare offered no expert testimony on the subject

whatsoever. His contentions were not supported by the

testimony of any other firemen as to their experience.

Muscare did not attempt to perform in court a

demonstration that he could obtain and maintain a seal

on a gas mask while wearing a beard and carrying on

strenuous physical activities.

The District Judge correctly concluded (App. 148):

“What we have before us is the validity of a regula-

tion and its reasonableness generally. And the ques-

tion of whether it is reasonable in terms of the in-

dividual context, which was raised here, I don’t

think is relevant...

“After hearing the evidence and examining the ex-

hibits, I find the justification of the Fire Depart-

ment, that is, the requirement limiting facial hair

for reasons of safety related to the fit of the face

mask of self-contained breathing apparatus, is

neither capricious nor arbitrary justification. It

appears to be grounded in reason. And it also

appears to involve a minor abridgement of personal

liberty, which is justified by safety regulations.”

=

CONCLUSION

For the reasons stated, it is respectfully submitted

that the judgment of the court of appeals should be

reversed and the judgment of the district court should

be affirmed.

Respectfully submitted,

WILLIAM R. QUINLAN

Corporation Counsel of the City of Chicago

511 City Hall, Chicago, Illinois 60602

Attorney for Petitioner

DANIEL PASCALE

EpMUND HATFIELD

Assistant Corporation Counsel

Of Counsel