Amicus Brief — Cabell v. Chavez-Salido

NO. 80-990 AUG ‘@ (981

ALEXANDER L. STEVAS, |

IN THE rangebied

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

CLARENCE E. CABELL, in his official capa-

city as Acting Chief Probation Officer

of Los Angeles County; JACQUALINE HASEN-

STAB, in her official capacity as Person-

nel Officer of the Los Angeles County

Probation Department; GORDON T. NESVIG,

in his official capacity as Chief Person-

nel Officer of the County of Los Angeles;

and the COUNTY OF LOS ANGELES, a body po-

’ litic; |

Appellants,

vs.

JOSE CHAVEZ-SALIDO, RICARDO BOHORQUEZ, and

PEDRO LUIS YBARRA,

Appellees.

On Appeal from the United States District

Court for the Central District of

California

Amicus Curiae Brief

in Support of Respcndents

Cd a

NO. 80-990

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

CLARENCE E. CABELL, in his official capa-

city as Acting Chief Probation Officer

of Los Angeles County; JACQUALINE HASEN-

STAB, in her official capacity as Person-

nel Officer of the Los Angeles County

Probation Department; GORDON T. NESVIG,

in his official capacity as Chief Person-

nel Officer of the County of Los Angeles;

— the COUNTY OF LOS ANGELES, a body po-

litic;

Appellants,

vs.

JOSE CHAVEZ-SALIDO, RICARDO BOHORQUEZ, and

PEDRO LUIS YBARRA,

Appellees.

On Appeal from the United States District

Court for the Central District of

California

Amicus Curiae Brief

in Support of Respondents

i

PETER A. SCHEY*

TIMOTHY S. BARKER

CARLOS HOLGUIN

NATIONAL CENTER FOR IMMIGRANTS' RIGHTS

1550 West 8th Street

Los Angeles, California 90017

Telephone: (213) 487-2531

AMIT PANDYA

NATIONAL CENTER FOR IMMIGRANTS' RIGHTS

1511 K Street, N.W., Suite 931

Washington, D.C. 20005

Telephone: (202) 737-1444

FRED OKRAND

AMERICAN CIVIL LIBERTIES UNION OF

SOUTHERN CALIFORNIA

633 S. Shatto Place

Los Angeles, California 90005

Telephone: (213) 487-1720

ANTONIO RODRIGUEZ

LOS ANGELES CENTER FOR LAW AND JUSTICE

2111 1/2 Brooklyn Avenue

Los Angeles, California 90033

Telephone: (213) 266-2690

MARY K. GILLESPIE

CALIFORNIA RURAL LEGAL ASSISTANCE

2111 Mission Street, Suite 401

San Francisco, California 94110

Telephone: (415) 864-3405

Counsel for Amicus Curiae

*Counsel of Record

TABLE OF CONTENTS

Table OF QGUGROELEICSN « « es we wee ees

I.

II.

IIl.

INTEREST OF AMICUS CURIAE.. .

SUMMARY OF ARGUMENT ..... .«

ARGUMENT *e . . . . * . . . . .

(1)

(2)

(a)

(b)

The District Court

Judgment Should Be

Vacated and Remanded.. .

The Challenged Califor-

nia Statutory Scheme

Sweeps Too Broadly... .

History of California

Discrimination Against

Immigrant Communities. .

The District Court

Properly Considered

Appellees Challenge to

Government Code Section

1031, As Applied to All

"Peace officers" ....

ll

12

16

Table of Contents (Cont.)

IV.

PAGE

(i) Scope of Review of

the Challenged

Statute. . . « © « «© « « 16

(ii) The Challenged Statute

Unjustifiably Precludes

Non-Citizens Employment

in Many Job Classi-

fications. . .. +++. 22

(iii) The Challenged Statute

as Applied to Deputy

Probation Officers . .. 30

CONCLUSION . . « «© © © © © ec © © 34

INDEX OF AUTHORITIES

Cases Page

Ambach v. Norwick, 441 U.S. 68 (1979)...passim

Aptheker v. Secretary of State,

eecocevecvecssive deecesae

Baker v. Carr, 369 U.S. 186 (1962) .....-«+++18

Barrows v. Jackson, 346 U.S. 249 (1953)..20,21

Broadrick v. Oklahoma, 413 U.S. 601

(1973) CCheceeoebeocececsecceceoseseeeconl eae

Chavez-Salido v. Cabell, 427 F.Supp. 158

. . a . evcccveccceccececeoesgeeae

Chavez-Salido v. Cabell, Case No. 76-541l-

. . al. June 4, 1980) TETTrreriie tl.

coopers and Lybrand v. Livesay, 437 U.S.

) ceeCCN Ce Cee el 6b 00 6b 6 ebee es bees

Czaplicki the Hoegh Silvercloud, 351 U.S.

(1956) $0066 abe 0s 6086 08 bebe eee eck

Foley v. Connelie, 435 U.S. 291 (1978)..passim

Graham v. Richardson, 403 U.S. 365 (1971)...34

Henry v. Mississippi, 379 U.S. 443 (1964)...11

In re Griffiths, 413 U.S. 717 (1973) ......29

Lin Sing v. Washburn, 20 Cal. 534 (1862) ...13

Mayer v. City of Chicago, 404 U.S. 189

(L971) nieteocebcatatbeees ’eee shen eee eee

People v. Hall, 4 Cal. 399 (1885) ..........15

eiii-

People v. Hutson, 221 Cal.App.2d 751

(1963) een kes 66660 oe bos wh Eh 06.6 64 be eee

People v. Journey, 129 Cal. Rptr. 478

(1976) Ee eR es yy ee ee re ee en ee er |

Protective Committee for Independent

Stockholders of T.M.T. Trailer Ferry,

Inc. v. Anderson, 390 U.S. 414 (1968) ...11

Sugarman v. Dougall, 413 U.S. 634

(1973) ececavecwesecesbaeaneaeeatiaeenreae

Takahashi v. Fish and Game Commission,

334 U.S. 410 (1948) boss 6408's ol ee oe eee

Truit Payne Co., Inc., v. Chrysler Motors

Corp., U.S. , 49 U.S.L.W. 4516

(May 18, 1981). eee bs 6 2 eee bsO0 eee ee eee

United States v. Raines, 362 U.S. 17

(1960) 6:00 6666665 0000066 de 06 rb eke 6a ee see

Whitcombe v. Yolo County, 141 Cal.Rptr.

L89 (1977) cw 606 Se 5666-0 bee eee Lae

Yick Wo v. Hopkins, 118 U.S. 356 (1886) ...14

CONSTITUTIONS AND STATUTES

Constitution of the United States,

Article ak i ca elae 06.6 66 646 Serene eee

California Constitution, Article XIX

Section 2 (1879) bevvecscecesb ter cheeamaan

California Fish and Game Code, Section

990 (1945) re ae ee hee eae Ne ree

California Government Code, Section

1031 (a) ccc rc cccccccccv cv ccesececen sPasSimM

California Penal Code, Section 179 (1880)..13

California Penal Code, Section 830 ........26

California Penal Code, Section 1203 ....30,31

California Penal Code, Section 1203.10 ....31l

California Statutes 1945, c.181 ...........14

Law of April 26, 1862 (California) ........13

OTHER SOURCES

Annual Report of the Immigration and

Naturalization Service (1979) ....ceeeeeee ef

California State Personnel Board,

Specification, Toll Sergeant, Schematic

ar C540, Revised January 9, 1959 .....24

California State Personel Board,

Classification, Schematic Code VJ25,

PeVaGeG MeEOn 26, ABTS cesccccsccsecsedOsal

California State Personnel Board,

Specification, Schematic Code Vwl0,

Revised December 7, 1972 ..eseeeveeee2d,260

Correctional System Study of Board of

Corrections: Probation, California

Board of Corrections (July 1971) .....32,33

Los Angeles County Probation Department

Union Fact Sheet (June 1981) ........e.. 32

Maloney and Raymond, "A Standardized

Pre-sentence Report", Fed.Prob. 41:2

(June 1977) PIES SOK EE RR Eee |

Wright, Miller and Cooper, Federal

Practice and Procedure: Jurisdiction

Section 3531 Cea edheleroscceevaKbecessaetens

-V-

I.

INTEREST OF AMICUS CURIAE2/

Amicus curiae have obtained the con-

sent of the appellants and appellees for

the filing of this brief. Amicus curiae

the League of United Latin American Citi-

zens (LULAC) is the largest and oldest His-

panic civil rights organization in the

United States. LULAC has chapters and mem-

bers located throughout the United States,

including California. Many members of

LULAC are lawful permanent immigrants re-

siding in California who will be immediate-

ly affected by the outcome of this case.

Amicus curiae the Farm Labor Organizing

Committee (FLOC) will be affected by the

1/ Pursuant to Rule 36.5, Rules of

the Supreme Court of the United States,

amicus curiae will only set forth the in-

terest of amici, summary of the argument,

the argument and a conclusion.

by the outcome of this case. Amicus cur-

iae the Farm Labor Organizing Committee

(FLOC) is a farm-worker union which orga-

nizes workers regardless of their alienage

or immigration status. Members of FLOC

will be affected by the outcome of this

case. Amicus curiae the Social Justice

Commission (Archdiocese of San Francisco)

provides services and assistance to law-

ful permanent resident immigrants who will

be immediately affected by the outcome of

this case. Amicus curiae the National Cen-

ter for Immigrants’ Rights (NCIR), is a na-

tional resource center on immigration mat-

ters representing hundreds of organizations

which have members or assist clients who

will be directly impacted by the disposi-

tion of this case.

II.

SUMMARY OF ARGUMENT

(1) The alienage-employment restric-

tion cases decided by this Court before

Foley v. Connelie, 435 U.S. 291, 98 S.Ct.

(1065 (1978) and Ambach v. Norwick, 441 U.S.

68, 995 S.Ct. 1589 (1979), did not entail

the exhaustive factual examinations found

in the latter two cases into the precise

responsibilities possessed by persons occu-

pying the job categories in question. A

new analytic framework was developed in

Foley and Ambach wherein the Court first

examined the nature of the job classifica-

tion, and then determined the appropriate

level of scrutiny to be applied. The trial

in this case, held before issuance of the

Foley and Ambach decisions, took only one

laay, Chavez-Salido v. Cabell, 427 F.Supp.

158, 161 (C.D.Cal. 1977) (Three Judge Court),

and was "tried on stipulated facts." Chavez-

Salido v. Cabell, Case No. 76-541-IH (C.D.

cal. June 4, 1980) (Civil Minutes at 73).

Upon rehearing following vacation and remand

by this Court, the trial court denied plain-

tiffs' “request for further discovery on the

‘issue of the duties and responsibilities of

o Je

Deputy County Probation officers. . ."

Ibid.

In light of the searching factual in-

quiries conducted in Foley and Ambach, it

was error to deny further discovery in this

case. At this point in the litigation,

only evidence extrinsic to the record can

establish the precise nature of the jobs in

question here. The present record is total-

ly inadequate for purposes of reaching a

reasoned decision in this case, the dispo-

sition of which will substantially impact

tens of thousands of immigrant workers and

their families. The appropriateness of

California's laws, which seek to exclude law-

ful permanent resident immigrants from many

job categories, cannot be carefully evalu-

ated in light of Foley and Ambach because

the record contains only the parties' con-

flicting assertions on the nature of the

job categories in question.

The record in this case does not sup-

port plenary review at this time. Given

the far-reaching consequences that would

accompany a disposition on the merits,

amicus curiae urges that the judgment of

the district court be vacated and the mat-

ter remanded for further factual develop-

ment.

(2) A State may not exclude non-

citizens from public employment by way of

a statute which sweeps indiscriminately,

without regard for the differences in the

job classifications involved. The Califor-

nia statutes at issue here exclude non-

citizens from a wide variety of jobs, many

of which do not involve the performance of

Significant governmental functions and are

not within the concept of a political com-

munity which can be legitimately restrict-

ed to citizens.

IIt.

ARGUMENT

(1) The District Court Judgment

Should be vacated and Remanded

There are avproximately 1,300,00 law-

ful permanent resident immigrants residing

in California. 1979 Annual Report of the

Immigration & Naturalization Service, Table

4, p. 19. Disposition of this case will

have a substantial impact on the ability of

permanent resident immigrants in California

and ultimately throughout the country to

obtain employment. Despite the profound im-

portance of this case, it comes to this

Court in a factual vaccum. Amici believe

that the paucity of the record makes mean-

ingful review of the challenged statutes

difficult, if not impossible. The district

court judgment should be vacated and re-

manded for further factual inquiry.

This Court made clear for the first

time in Foley and Ambach that the thres-

hold examination in state-imposed citizen-

ship public-employment restrictions wouid

focus on whether excluded job classifica-

tions involve significant governmental

-6-

functions. Foley v. Connelie, supra, at

1074; Ambach v. Norwich, supra, at 1596.

The outcome of this initial analysis in

turn would determine the appropriate level

of scrutiny to be applied. Ibid.

In Ambach, which held that school

teachers are within the political commu-

nity, the Court appeared to rest its

analysis upon the important policy and

governmental functions which public school

teachers perform. The Court reviewed the

precise functions of public school teachers,

including the promotion of civil virtues,

their serving as role models, and their in-

fluence over students' attitudes towards

government and the political process. 441

U.S. at 78-80. In Foley the Court specifi-

cally expressed its obligation to "examine

each [job classification] in question to

determine whether it involves discretionary

decision-making, or execution of policy,

which substantially affects members of the

political community." 435 U.S. at 296.

The Court reviewed and discussed the "va-

riety of discretionary powers" held by New

York State Troopers. 435 U.S. at 297.

In contrast, the record in this case

is remarkably barren in terms of the pre-

cise nature of the job classifications

which preclude non-citizen public employ-

ment under California Government Code Sec-

tion 103l(a). The trial in this matter

lasted only one day. Chavez-Salido v. Ca-

bell, supra, 427 F.Supp. at 161. The case

was tried on "Stipulated facts" which vir-

tually ignored the nature of the many job

classifications involved in this litigation.

Chavez-Salido v. Cabell, supra, Civil Min-

utes (July 6, 1978) at 73. While the case

may have been tried on a summary record of

"stipulated facts", the parties now offer

widely divergent views on the actual role

of probation officers in the criminal jus-

tice system, and have virtually nothing to

o§-

offer concerning the nature of the many

other job classifications included in the

challenged statute. Upon rehearing follow-

ing vacation and remand of the district

court judgment, that court denied plain-

tiffs' request "for further discovery on

the issue of the duties and responsibili-

ties of Deputy County Probation officers

- » «" Ibid.; Joint Appendix ("J.A.") at

73.

At this point in the litigation, only

evidence extrinsic to the record can es-

tablish the precise nature of the job

classifications in question here. In short,

this Court would have to reach beyond the

record in order to make the initial deter-

mination of whether the job categories at

issue here fall within the political commu-

nity. Foley v. Connelie, supra, 435 U.S.

at 296-97. In turn, this factual examina-

tion is critical to a determination of

what standard of scrutiny will apply. Id.,

435 U.S. at 295-96; Ambach v. Norwich,

95 S.Ct. at 1596.

This Court frequently vacates and re-

mands cases in which the factual record is

inadequate for a reasoned disposition. See,

e.g., Truit Payne Co., Inc., v. Chrysler

Motors Corp., U.S. , 49 U.S.L.W. 4516,

4519 (May 18, 1981) ("the proper course is

to remand the case so that the Court of Ap-

peals may pass upon respondents' contention

that the evidence adduced at trial was in-

sufficient to support a finding of violation

of the Robinson-Patman Act. . .") Amicus

curiae believe that "a remand for further

factual development" is required in this

case. Coopers and Lybrand v. Livesay, et

al., 437 U.S. 463, 473 (1978). The Court

cannot reasonably decide the legal questions

involved here because the record contains

“only the parties' conflicting assertions"

concerning the precise parameters of a pro-

bation officer's job. Mayer v. City of

Chicago, 404 U.S. 189, 199 (1971) (case va-

-10-

cated and remanded). This record is "de-

void of facts which would have permitted

a reasoned judgment. .. [A] remand is ne

cessary to permit further hearings to be ,

held." Protective Committee for Indepen-

dent Stockholders of TMT Trailer Ferry,

Inc. v. Anderson, 390 U.S. 414, 440-41

(1968). At this point "[(o]nly evidence

extrinsic to the record" can establish the

justification for the challenged statutory

scheme. Henry v. Mississippi, 379 U.S.

443, 452 (1964). The plaintiffs' request

to pursue and present additional facts

should have been granted. Czaplicki The

Hoegh Silvercloud, et al., 351 U.S. 525,

534 (1956).

(2) The Challenged California Sta-

tutory Scheme Sweeps Too Broadly

Footnote 5 of the Foley opinion, 435

U.S. at 296, reaffirms the continued valid-

ity of the overbreadth criterion announced

earlier in Sugarman v. Dougall, 413 U.S.

634, 643 (1973):

This is not to say, of course,

that a State may accomplish

this end with a citizenship

restriction that “sweeps in-

discriminately", [citing

Sugarman] without regard for

the differences in the posi-

tions involved.

The challenged statutory scheme sweeps in-

discriminately against lawful permanent re-

sidents and results from a long California

history of discrimination against non-citi-

zens.

(a) History of California Dis-

crimination Against Immi-

grant Communities

As early as 1879 the Constitution of

California provided that no corporation

formed under the laws of the State shall

in any capacity employ any Chinese or Mon-

gOlian. (Art. XIX, § 2, Constitution of

1879.) In 1880 the State Legislature pass-

ed an ordinance making it a criminal of-

fense for a corporation to hire Chinese or

Mongolian employees. California Penal Code

§ 179 (1880). The California Constitution

further provided that "no Chinese shall be

employed in any State, county, municipal,

or other public work, except in punishment

for crime." California Constitution, Art.

XIX, § 2 (1879). It was not until 1952 that

the people of California repealed Article

XIX of their Constitution.

Prior to that the California Legisla-

ture had already passed "an act to protect

free white labor, and discourage the immi-

gration of the Chinese into the State of

California." Law of April 26, 1862 (em-

phasis added). This legislation placed a

special "Chinese Police Tax" on those em-

ploying Chinese and Mongolian nationals.

Lin Sing v. Washburn, 20 Cal. 534 (1862).

In 1945 the California Legislature

a2 Be

amended the commercial fishing license sta-

tute to the effect that persons ineligible

for United States citizenship could not ob-

tain commercial fishing licenses. Cal.

Stats. 1945, c.181; Fish & Game Code § 990

(1945). This legislation was held uncon-

stitutional in Takahashi v. Fish & Game

Commission 334 U.S. 410, 68 S.Ct. 731 (1948);

see also, Yick Wo v. Hopkins, 118 U.S. 356,

6 S.Ct. 1064 (1886).

Bigotry against non-citizens extended

to the highest levels of the California ju-

diciary:

The anomalous spectacle of a dis-

tinct people living in our commu-

nity, recognizing no laws of this

State except through necessity,

bringing with them their prejudi-

ces and national feuds, in which

they indulge in open violation of

law, whose mendacity is proverbial;

a race of people whom nature has

marked as inferior, and who are

incapable of progress

ole

or intellectual development be-

yond a certain point, as their

history has shown, differing in

language, Opinions, color and

physical conformation; between

whom and ourselves nature has

placed an impassable difference,

is now presented, and for them

is claimed, not only the right

to swear away the life of a ci-

tizen, but the further privilege

of participating with us in ad-

ministering the affairs of our

Government.

People v. Hall, 4 Cal. 399, 404 (1885).

California's history of discrimination

against non-citizens again surfaced in 1961,

when, "in one fell swoop, the legislature

passed Government Code Section 1031 which

applied the mandatory citizenship require-

ment" to a wide list of job categories. J.A.

79-80.

oe) 5=

(b) The District Court Properly

Considered Appellees Chal-

lenge to Government Code

Section 1031, As Applied to

All "Peace Officers"

Appellants’ Opening Brief ("App. Bf.")

argues that because appellees were appli-

cants for only one class of position, deputy

probation officer, they "lacked standing to

assert that Section 103la was overbroad be-

cause it might include some [job] categor-

ies. . .{which] may be found not to justify

a citizenship restriction." App. Bf. 29.

(i) Scope of Review of the

Challenged Statute

In Sugarman this Court examined the full

reach of the citizenship restriction enacted

by New York and struck down the entire statu-

tory scheme. 413 U.S. at 639. The Court did

not limit its inquiry to the particular job

sought by the plaintiffs in that case. Ibid.

In Foley the Court made clear that a State

=i6<

may not accomplish a citizenship restric-

tion with a statutory scheme which sweeps

indiscriminately "without regard for the

differences in the positions involved."

435 U.S. at 296.

Petitioners rely upon United States

v. Raines, 362 U.S. 17 (1960) and Broad-

rick v. Oklahoma, 413 U.S. 601 (1973) in

support of their argument that the plain-

tiffs/appellees lacked standing to chal-

lenge the full scope of Section 1031. App.

Bf. 25.

First it should be noted that Sugar-

man was decided on the same day as Broad~

rick and more than ten years after Raines.

Clearly, neither Broadrick nor Raines li-

mited this Court to an examination of only

the particular jobs sought by the Sugarman

plaintiffs. As noted above, the Court in

Sugarman analyzed the entire statutory

scheme without regard to the particular

jobs sought by the plaintiffs in that

Sh

2/

case .-

The plaintiffs in Broadrick challenged

a statute on First Amendment vagueness and

overbreadth grounds. The challenged statute

was concededly constitutional as applied to

their conduct and the Court held that they

could not challenge the statute on the

grounds that it may conceivably be applied

in an unconstitutional manner in other situ-

ations not before the Court. Here the

plaintiffs/appellees challenge California

Government Code Section 1031(a) which re-

quires that numerous job categories only be

filled by United States citizens. Clearly

they have "standing" under Article III of

the Constitution of the United States.

Baker v. Carr, 369 U.S. 186 (1962).

2/

~ The majority in Sugarman considered

the constitutionality of the challenged New

York statute in its entirety, despite the

urgings of Justice Rehnguist in dissent that

the examination should be confined to the

The question is not one of standing, but

rather whether "good judicial policy” al-

lows plaintiffs to show the full reach of

Section 1031(a) as applied to all covered

job classifications. Wright, Miller and

Cooper, Federal Practice and Procedure: Jur-

isdiction, § 3531, p. 205. Should this

Court reject amici's suggestion that this

case be remanded, sound judicial policy

would mitigate in favor of examining the

total reach of the challenged statute. Sec-

tion 1031(a) is one statute, clearly written,

and applies to a wide variety of job classi-

fications. The Court should not attempt to

artificially divide the statute into compo-

nent parts in order to save it from a Con-

stitutional challenge.

The prudential requirement that a sta-

2/ Continued: particular jobs sought

by the plaintiffs. Sugarman, supra, 413

U.S. at 662 (Rehnquist J. dissenting).

=19<

tute be construed so as to avoid deciding

constitutional issues, explicated by Jus-

tice Brennan in Raines, has no application

in this case. Further, the principle that

statutes should be construed in favor of

constitutionality where possible cannot be

applied in this case because Section 1031

(a) is clear on its face and thus leaves

no room for a limiting construction. This

case is similar to Aptheker v. Secretary of

State, 378 U.S. 500 (1964), which involved

a statute clear on its face and thus not

subject to a saving construction absent a

wholesale rewriting of the statute, 378 U.S.

at 515-16, a task more appropriately left to

the legislature.

The limitation on review suggested by

Justice Brennan in Raines was recognized as

a court rule and not a constitutional re-

quirement. United States v. Raines, supra,

362 U.S. at 21-22. In fact, in Barrows v.

Jackson, 346 U.S. 249 (1953), the case re-

=20<

lied upon by Justice Brennan in Raines, the

Court entertained a constitutional attack

on a judgment enforcing a racially restric-

tive covenant, over the dissent of the then

Chief Justice and despite the fact that the

challenge was brought by white persons in

behalf of black persons not before the

Court. The Court justified its actions

in approving such third party stand-

ing, a departure from what it referred to

as “only a rule of practice", as required

by the “need to protect the fundamental

rights which would be denied" if the Court

refused to act. 346 U.S. at 257. Thus,

neither Raines nor Barrows precludes re-

view of Section 103l(a) on its face.

eae

hi Se

21a

(ii) The Challenged Statute Unjus-

tifiably Precludes Non-Citizens

Employment in Many Job Classi-

fications

Appellees and the district court have

already pointed out the numerous job clas-

sifications included within the reach of

Section 103l(a). Appellees' Brief

at 35-42; Chavez-Salido v. Cabell, supra

at 80 (June 4, 1980). Amici will briefly

examine some of these job classifications

to show that they do not involve important

governmental functions and are not support-

ed »y a compelling state interest.

"[T]oll service employees" must be

United States citizens under the challenged

statute. Chavez-Salido v. Cabell, supra,

at 80 (June 4, 1980). The California

State Personnel Board describes the typ-

ical tasks of a toll sergeant as follows:

Acts as desk sergeant on an

assigned shift or is respon-

Pa, Ly

Sible for a special phase of

the toll collection activities;

assists in determining the

number of toll stations required

to handle traffic effectively

during an assigned shift and

in directing the opening and

closing of stations as needed;

assigns Toll Collectors to

their stations and directs the

taking of relief periods; may

assist with collections in

emergency situations; intructs

new collectors in duties and

works with an intructs them at

their stations; takes charge

in difficult situations and

adjusts complaints; makes

refunds on commute tickets,

accepts checks or makes

change on unusually large

amounts; issue commute books

«23-

to collectors and keeps records

on special permits; checks on

the speed and accuracy of Toll

Collectors; reviews Toll Collec-

tor's reports; sees that toll

stations are neat and orderly

and equipment in proper condi-

tion; acts as a peace officer

as Occasion requires; makes

reports.

California State Personnel Board, Specifi-

cation, Toll Sergeant, Schematic Code

C540, Revised January 9, 1959. A toll

sergeant, in other words, functions as

a supervisor of toll collection activi-

ties on state-operated toll bridges.

Inspectors for the California Home

Furnishings Bureau are also granted the

powers of a peace officer in Section

19206 of the Business and Professions

Code:

No person shall interefere with,

~24<

obstruct or otherwise hinder

any inspector of the bureau

or the department's Division

of Investigation in the

performance of his duties. The

chief, his duties, assistants

and all inspectors in perfor-

mance of their official duties,

shall have the same powers, as

are possessed by peace officers

in this state.

The task of a Home Furnishings Bureau

inspector involves inspecting upholstered

furniture to insure compliance with

California consumer laws. These inspec-

tors conduct "interviews and consult

with licenses to determine causes of

violations and to encourage compliance

- « -" California State Personnel

Board, Specification, Schematic Code

VWw10, revised December 7, 1972. They

make inspections at “retailers of

~25=

upholstered furniture or bedding or those

items containing concealed filling materi-

als. . ." Ibid. They also take "samples

[from upholstered furniture in] barber

shops and schools. . . cosmetology shops»

and schools. . . dry cleaning shops and

plants. . . [and] fur hat renovators. . ."

Ibid.

Also included in the scope of Section

1031(a)'s sweep are various “investigators”

designated as "peace officers." California

Penal Code Section 830. These include

investigators for the Department of

Alcoholic Beverage Control Board, the Board

of Medical Quality Assurance, the State

Division of Forestry, and the California

Horse Racing Board. Ibid. These investi-

gators are classified into three categories:

(1) Investigator assistant; (2) investiga-

tor trainee; (3) special investigator.

California State Personnel Board, Clas-

sification, Schematic Code VJ25, Revised

-26-

March 26, 1975. The “Investigator Assis-

tant", who under Section 1031(a) must be

a United States citizen, works "[u]nder

close supervision as a learner and worker,

to assist with the more routine phases

of licensing and enforcement investigations

- « »" Ibid. They "assist in determining

the character of applicants for specialized

licenses by means of interviews. . . [and]

inspect premises where licenses are to be

located." Ibid.

Public school teachers, who this Court

held in Ambach could be required to seek

United States citizenship, fulfill

"perhaps the most important function of

state and local governments. .. [Educa-

tion] is required in the performance of our

most basic public responsibilities. . ."

Ambach v. Norwick, supra, 441 U.S. at 78.

They are responsible for "inculcating

fundamental values necessary to the

maintenance of a democratic political

o2%e

system. . ." Id., 441 U.S. at 77.

State troopers also perform a funda-

mental government function--enforcement

of the criminal justice system. Their

duties include "the apprehension of

suspected criminals, investigations of

Suspect conduct, execution of warrants

and [they] have powers of search, [and]

seizure and arrest without a formal warrant

under limited circumstances." Foley v.

Connelie, supra, 435 U.S. at 293. This

country "entrusts many of its most impor-

tant policy responsibilities to these

officers, the discretionary exercise of

which can often more immediately affect

the lives of citizens than even the ballot

of a voter or the choice of a legislator.”

Id., 435 U.S. at 297.

In contrast, the job classifications

covered by the challenged statute involve

very limited and basically ministerial

duties. The population they serve is

-28-

miniscule compared with teachers or State

troopers. And, they are not important

symbolic figures. If Leeveis; ho serve

as officers of this nations's courts, may

be non-citizens, In Re Griffitns, 413 U.S.

717 (1973), then certainly toll-bridge

collectors, furniture inspectors, etc.,

cannot be required to acquire citizenship

as a prerequisite to job eligibility.

These positions clearly do not fall within

"the basic conception of a political commu-

nity." Sugarman v. Dougall, 413 U.S. 634,

642 (1973). Section 1031(a) is not "pre-

cisely drawn in light of [its] acknowledg-

ed purpose." Id., 413 U.S. at 642-43.

Foley and Ambach clearly provide that

heightened judicial scrutiny will be

applied to a state statute which excludes

non-citizens from employment in job clas-

sifications which do not fall within the

political community. Foley v. Connelie,

supra, 435 U.S. at 295-96; Ambach v.

py

Norwick, supra, 441 U.S. at 74. California

has shown no compelling, let alone a ratio-

nal, justification for excluding non-cit-

izens from such public employment positions

as furniture inspectors and toll collectors.

App.Bf. 9-23. Appellants address their

arguments exclusively to the constitution-

ality of excluding non-citizens from the

position of deputy probation officer.

Ibid.

(iii) The Challenged Statute as

Applied to Deputy Probation

Officers

One of the probation officer's primary

duties is to submit a pre-sentencing report

to the court for each probationer assigned

to the officer. The report must include

an evaluation of the case history of the

offender, the exact contents of which are

dictated by statute. California Penal

Code § 1203.10. The report also contains

a recommendation for or against probation.

=30-

Offenses which preclude an offender from

receiving probation are clearly delineated

by statute. Id., § 1203. Likewise, juve-

niles not eligible for probation are de-

cribed by statute. California Welfare and

Institutions Code § 628. Because the con-

tents of the report are largely statutory,

probation departments increasingly use

standardized forms for pre-sentencing

reports. Maloney and Raymond, A Standard-

izei Pre-sentence Report, Fed. Prob. 41:2

(June 1977).

A court is not bound in any way by

the probation officer's report. Whitcombe

v. Yolo County, 141 Cal.Rptr. 189 (1977).

California courts refer to use of the

report as "informal and optional",

People v. Hutson, 221 Cal.App.2d 751, 756

(1963), and failure to consider the report

does not deprive the defendant of any

substantial right. People v. Journey, 129

Cal.Rptr. 478 (1976).

ce ie |

A probation officer's opportunity for

shaping a probationer's attitude toward our

nation's institutions is extremely limited.

A State study indicated that a California

probation officer spends, on an average,

less than thirty minutes per month with each

probationer. California Board of Correc-

tions, Correctional System Study of Board

of Corrections: Probation, at 31 (July

1971). More recent figures indicate that a

more accurate assessment is that probation

officers spend approximately eleven (11)

minutes per month in direct contact with

their probationers. Los Angeles County

Probation Department Union Fact Sheet, at

1 (June 1981). The 1971 California study

was forced to conclude that the minimal

amount of time spent in direct contact

between the probation officer and the

probationer resulted in the probationer's

family and job having a much greater

influence on rehabilitation than was

=32<

attributable to the probation officer.

Correctional System Study, supra, at 27.

And, that the probation officer in the end

plays a "rather insignificant role” in

the rehabilitation process. Ibid.

Thus, the position of deputy probation

officer for which the plaintiffs/appellees

applied is not one which carries with it

“broad power over people generally. . ."

Foley v. Connelie, supra, 435 U.S. at 298.

The population they serve is relatively

small, and their personal contact with this

population is minimal. Unlike teachers,

they do not spend enormous amounts of time

molding the attitudes of their probationers.

The vast majority of the probation officer's

time is spent compiling recommendations for

the California courts. And they do not

serve as important symbols or models with

regards the formation of attitudes toward

our democratic institutions.

Deputy probation officers do not fall

«330

within the "political community" as that

concept is conceived in Foley and Ambach.

The challenged statute, Section 1031(a),

therefore should be subjected to strict

judicial scrutiny. Appellants have not

shown that the challenged statutory scheme

is supported by a compelling state interest.

Graham v. Richardson, 403 U.S. 365, 376

(1971). They have not even attempted such

a showing given their belief that the stat-

ute need only be defended as having a

rational basis. App.Bf. 9-22. In short,

appellants have not show sufficient justi-

fication for the sweeping restriction

found in California Government Code Section

1031(a).

IV.

CONCLUSION

Amici first urge that this case be

remanded for a further factual inquiry into

the precise nature of the job classifica-

tions involved in this litigation. In the

=34-

alternative, amici believes that appellants

have failed to carry their burden of

showing that Section 103l(a) is supported

by a compelling governmental interest in

recuiring that all “peace officers" be

United States citizens. The term "peace

‘officer" does not mean "police" officer

or state trooper. In California furniture

inspectors and toll-bridge collectors are

defined as "peace officers." Without a

compelling justification for Section 1031

(a)'s broad citizenship requirement, the

statute should be found to violate the

Fourteenth Amendment equal protection

rights of lawful permanent resident

immigrants.

Respectfully Submitted,

PETER A. SCHEY

TIMOTHY S. BARKER

CARLOS HOLGUIN

NATIONAL CENTER FOR IMMIGRANTS" RIGHTS

1550 West 8th Street

Los Angeles, California 90017

=3S—

AMIT PANDYA

NATIONAL CENTER FOR IMMIGRANTS' RIGHTS

25il K Street, N.W. Suite 931

Washington, D.C. 20005

Telephone: (202) 737-1444

FRED OKRAND

AMERICAN CIVIL LIBERTIES UNION OF

SOUTHERN CALIFORNIA

633 S. Shatto Place

Los Angeles, California 90005

Telephone: (213) 487-1720

ANTONIO RODRIGUEZ

LOS ANGELES CENTER FOR LAW AND JUSTICE

2111 1/2 Brooklyn Avenue

Los Angeles, California 90033

Telephone: (213) 266-2690

MARY K. GILLESPIE

CALIFORNIA RURAL LEGAL ASSISTANCE

2111 Mission Street, Suite 401

San Francisco, California 94110

Telephone: (415) 864-3405

Counsel for Amicus Curiae

* Counsel of Record

“PL,

Dated:

“Peter A. Schey \

Counsel for AML OG"

Curiae

=36-