# Amicus Brief — Cabell v. Chavez-Salido > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1922%3A7 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Brief - **Published:** January 1, 1982 - **Citation:** 454 U.S. 432 ## Text 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- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1922%3A7. Public record. Not legal advice.