Opposition Brief — Louisville Lodge No. 6, Fraternal Order of Police and Bert J. Heuser v. George Burton, Director of Public Safety and Louisville Civil Service Board

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Table of Authorities. .....ccccccccccccccccsvcccccses ii-iii

Statement of the Case...........cccccscccccccccens 1

Lack of Jurisdiction.............-scccccesceeccees 2- 6

Questions Presented ............seeeceseecececeens 6-10

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TABLE OF AUTHORITIES

Cases:

Memphis Natural Gas Company v. Roy H. Beeler,

PAGE

315 U. S. 649, 86 L. Ed. 1090, 62 8. Ct. 857 (1941) 3, 5

Murdock, et al. v. The Mayor and Aldermen of

Memphis, et al., 87 U. S. 583, 22 L. Ed. 429, 20

EE ina y 6-o909 545 sndbedeeheveva ss

Levy v. Superior Court of the City and County of

San Francisco, 167 U. S. 175, 42 L. Ed. 126, 17

ED iis cls bd eee eh inne e dk Fes

Seudder v. New York, 175 U. S. 32, 44 L. Ed. 62,

I Ca sc ccnwd adie s stasaseeeus

Mellon v. O’Neil, 275 U. S. 212, 72 L. Ed. 245 (1927),

EE SATE cw bkc cade cto tok 08a ks honetees

Republic Natural Gas Company v. State of Okla-

homa, 334 U. S. 62, 92 L. Ed. 1212, at page 122,

Pes SE BE i cccsccnatdads ssubsauseees

Edelman v. California, 344 U. S. 357, 97 L. Ed. 387,

Se Ss ES o's Sno duacda cscncesceans

Michigan Central R.R. Co. v. Michigan Southern

R.R. Co., 60 U. S. 378, 19 How. 378, 15 L. Ed.

toca cobs din nova bannscdeccnrcuessss

Jett Brothers Distilling Co. v. City of Carrollton,

251 U. S. 1, 64 L. Ed. 421, 40 S. Ct. 255 (1919).

U. S. Civil Service Commission v. National Associa-

tion of Letter Carriers, 413 U. S. 548, 37 L. Ed.

2d 796, 93 S. Ct. 2880

Pickering v. Board of Education, 391 U. S. 563, 20

L. Ed. 2d 811, 88 S. Ct. 1731 (1968)...........

Oklahoma Tax Commission v. Texas Company, 336

U. S. 342, 93 L. Ed. 721 and 69 S. Ct. 561 (1948). .

Great Northern Railway Company v. Sunburst Oil

and We Co., 287 U. S. 358, 77 L. Ed. 358

Supreme Lodge, K. P. v. Meyer, 265 U. S. 33, 68

L. Ed. 888, 44 S. Ct. 432 (1923)

SHheoe0es eons d's 66

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| Statutes:

BUR, Si occ hoses cehnpocnseedicnivesie

Kentucky Revised Statutes 90.220(2)

Kentucky Revised Statutes 95.015...............-

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A PRD I NF BEE PE POSIT LE LIE BDI LCL Dt ND

SUPREME COURT OF THE UNFTED STATES

LOovuISVILLE LopcEe No. 6, FRATERNAL ORDER

oF POLicE, and

Bert J. HEUSER - - - - - Petitioners

G.

— Burton, Director of Publie Safety

an

LovIsvILLE Crvit Service Boarp - Respondents

BRIEF IN OPPOSITION TO PETITION FOR

CERTIORARI TO THE KENTUCKY

COURT OF APPEALS

The Respondents, George Burton, Director of

Public Safety, and Louisville Civil Service Board,

respectfully pray that the writ of certiorari petitioned

for in the above styled case be denied.

STATEMENT OF THE CASE

Respondents agree with Petitioners’ Statement of

the Case except for that which states that, ‘‘An appeal

was taken to the Louisville Civil Service Board which

refused to act on the matter and the lawsuit herein was

commenced.”’ It is the impression of Respondent that

the Petitioner elected a remedy through the State Court

rather than the Civil Service Board.

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LACK OF JURISDICTION

The Respondent respectfully submits that this

Honorable Court is without jurisdiction to grant a

writ of certiorari. The Petitioners, Louisville Lodge

No. 6, Fraternal Order of Police, and Bert J. Heuser

invokes jurisdiction under 28 U.S.C. §1257(3). Such

statute states: ‘‘Final judgments or decrees rendered

by the highest court of a state in which a decision could

be had, may be reviewed by the Supreme Court as fol-

lows: . . . (3) By writ of certiorari, where the

validity of a treaty or statute of the United States is

drawn in question or where the validity of a State

statute is drawn in question on the ground of its being

repugnant to the Constitution, treaties or laws of the

United States, or where any title, right, privilege or

immunity is specially set up or claimed under the Con-

stitution, treaties or statutes of, or commission held or

authority exercised under, the United States.”’

In Petitioners’ Brief to the Court of Appeals of

Kentucky it is stated: ‘‘ Appellant wishes to emphasize

that the constitutionality of KRS 90.220 or 95.015 is

not being questioned, but rather that these statutes

specifically indicate which activities civil service em-

ployees are precluded from engaging in; and had the

legislature desired to prohibit civil service employees

from being candidates in public elections they would

have included such clause in KRS 90.220.”

The Opinion of the Jefferson Circuit Court,

Chancery Branch, Fourth Division, in deciding the case

in favor of Respondents, states: ‘‘Suffice it to say that

LEMS GALS NIG LE TEES CLLEGE OLE NG LOI LAL LAL IONS ELBIT

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constitutionality of the statutes at issue in this action

have not been challenged by the plaintiff and, therefore,

should not be decided by this court.’’ (Page 23 of

Petitioner’s Petition for Certiorari.) And in the Opin-

ion of the Court of Appeals of Kentucky affirming, it

is stated: ‘‘The appellants do not in terms argue that

KRS 90.220(2) is unconstitutional’. (At page 26 of

Petitioner’s Petition for Certiorari.)

The following are a list of cases in which the

Supreme Court has held lack of jurisdiction under

28 U.S.C. 1257(3) because the constitutionality of the

statute in issue was not raised in the lower courts.

1. Memphis Natural Gas Company v. Roy H.

Beeler, 315 U. S. 649, 86 L. Ed. 1090, 62 S. Ct. 857

(1941) (at 315 U. S. 649 page 651). ;

‘Since it does not appear that the validity of the

statute was either drawn in question or passed upon in

the trial court or deemed by the state Supreme Court

to be in issue, we must dismiss the appeal for want of

jurisdiction.”’

2. Murdock, et al. v. The Mayor and Aldermen of

Memphis, et al., 87 U. S. 583, 22 L. Ed. 429, 20 Wall

590 (1874).

This case discusses the original of 28 U.S.C. 1257(3)

passed in 1867 entitled ‘‘An Act to Amend an Act to

Establish the Judicial Courts of the United States’’.

14 Stat. at L., 365, at 22 L. Ed. 441.

‘But we have not yet considered the most important

part of the statute, namely, that which declares that it

is only upon the existence of certain questions in the

ease that this court can entertain jurisdiction at all.

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Nor is the mere existence of such a question in the case

sufficient to give jurisdiction—the question must have

been decided in the State Court. . . .”

3. Levy v. Superior Court of the City and County

of San Francisco, 167 U.S. 175, 42 L. Ed. 126, 17 8. Ct.

769 (1896). Court dismissed writ of error for want of

jurisdiction.

‘*. . . he did not, in the State court, draw in ques-

tion any statute of the state upon the ground that it was

repugnant to the Constitution of the United States, nor

specially set up or claim in that court any right, title,

privilege, or immunity under the Constitution of the

United States . . . Ifthe plaintiff intended to claim

that the statute in question was repugnant to the Con-

stitution of the United States, he should have so de-

elared.”’ (at pages 126-127).

4. Scudder v. New York, 175 U. S. 32, 44 L. Ed.

62 (at 63-64), 20 S. Ct. 26 (1899).

‘No mention of the Constitution of the United

States or of any provision thereof, by the plaintiff in

error, or by the Court, is to be found at any stage of the

case while it was pending in the courts of the state of

New York . . . In order to give this court jurisdic-

tion of a writ of error to review a judgment which the

highest court of a state has rendered in favor of the

validity of a statute of or an authority exercised under

a state, the validity of the statute or authority must

have been ‘‘drawn in question . . . on the ground of

their being repugnant to the Constitution, laws or

treaties of the United States.”’” When no such ground

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has been presented . . . this court has no jurisdic-

tion.”’

5. Mellon \ v. O’Neil, 275 U. 8. 212, 72 L. Ed. 245

_ (1927) at U. S. 214.

“Tt has long been settled that this court acquires no

jurisdiction to review the judgment of a state court of

last resort on writ of error, unless it affirmatively ap-

pears upon the face of the record that a federal question

constituting an appropriate ground for such review

was presented in and expressly or necessarily decided

by such state court.”’ |

6. Republic Natural: Gas Company v. State of

Oklahoma, 334 U.'S. 62, 92 L. Ed. 1212, at page 122,

68 S. Ct. 972 (1947). Citing Memphis Natural Gas Co.

v. Beeler, the court says: ‘‘Appellant, of course, has

the burden of affirmatively Te this court’s

jurisdiction.”

7. Edeiman v. California, 344 U. 8. 357, 97 L. Ed.

387, 73 S. Ct. 293 (1952) at page 391.

“It is clear that this court is without power to

decide whether constitutional rights have been violated

when the federal questions are not seasonably raised in

accordance with the requirements of state law.’’

8. Michigan Central R.R. Co. v. Michigan South-

ern R.R. Co., 60 U. 8. 378, 19 How. 378, 15 L. Ed. 689

(1856) (at page 689).

‘In order to give this eourt jurisdiction anor the

25th section of the Judiciary Act, the record of the

case must show by direct averment or necessary intend-

ment, that one of the questions enumerated in that

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decided

section did arise, and was diridedt by the state court, as

required. ”

9. Jett Brothers Distilling Co. v. City of Carroll-

ton, 251 U.S. 1, 64 L. Ed. 421, 40 S. Ct. 255 (1919)

(at page 423) (Ky. case). |

‘*In order to give this court jurisdiction by writ of

error, under, amended §237, Judicial Code, it is the

validity of the statute or authority which must be

drawn in question. The mere objection to an exercise

of authority under a statute whose validity is not

attacked cannot be made the basis of a writ of error

from this court. There must be a substantial challenge

of the validity of the statute or authority, upon a claim

that it is repugnant to the Federal Constitution,

treaties, or laws, so as to require’ the state court to

decide the question of validity in disposing of the con-

tention.”’

QUESTIONS PRESENTED

1. Whether Kentucky Revised Statutes 90.220(2)

prohibits a police officer employed by a city of

' the first-class from becoming a partisan eandi-

date for the office of Alderman on the Board of

Aldermen of the City of Louisville?

2. Whether the actions of the City of Louisville

-. Chief of Police in suspending the Petitioner,

Bert J. Heuser, because he became a candidate

for the office of Alderman was arbitrary, caprici-

ous, and a violation of his rights under the Con-

stitution of the United States or under other

laws?

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Even if this Honorable Court had jurisdiction in

the above styled case, the case of U.S. Civil Service

Commission v. National Association of Letter Carriers,

413 U.S. 548, 37 L. Ed. 2d 796, 93 S. Ct. 2880, would be

controlling in this situation. In U. S. Civil Service

Commission v. National Association of Letter Carriers,

supra, there was in question that portion of the Hatch

Act (codified in 5 U.S.C. §7324(a) (2) ), which prohibits

federal employees from taking ‘‘an active part in

political management or in political campaigns’. The

provisions have been attacked on grounds of (1) in- ©

fringement on First Amendment rights of federal em-

ployees and (2) vagueness and overbreadth.

In upholding the constitutionality of the Act from

a First Amendment standpoint, the Court quotes from

Pickering v. Board of Education, 391 U. 8. 563, 20

L. Ed. 2d 811, 88 S. Ct. 1731 (1968). This Court has

recognized a balancing test weighing the interests of

the employer in regulating the political activities of its

employees as against the individual rights of said

employees.

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‘‘The problem in any case is to arrive at a balance

between the interest of the (employee) as a citizen,

in commenting upon matters of public concern and

the interest of the (government), as an employer,

and promoting the efficiency of the public services

it performs through its employees.’’ 20 L. Ed. 2d

811, at 817.

Insofar as precisely where this balance should be

struck, the Court does not, of course, set the boundaries

between what is permissible regulation of activities and

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what would be an impermissible infringement on the

First Amendment rights of the citizen. The Court

does, however, state:

‘**Although Congress is free to strike a different

balance than it has, if it so chose, we think the

balance it has so far struck is sustainable by the

obviously important interests sought to be served

by the limitation on partisan political activities

now contained in the Hatch Act.’’ 37 L. Ed. 2d

796, at 808.

We would thus appear to be presented with a two-

faceted fact question of (1) whether the balance which

has been struck by the General Assembly in KRS

90.220(2) ‘‘is sustainable by the obviously important

interests sought to be served by the limitations’’, and

(2) whether the Court of Appeals’ decision in holding

that the statute prohibits a Civil Service employee from

campaigning for and holding office as well as the activi-

ties expressly prohibited, was a proper construction of

the statute.

As to the latter question, it has been held a number

of times that the Supreme Court will not question the

construction given to a state statute by the highest state

court. Oklahoma Tax Commission v. Texas Coimpany,

336 U.S. 342, 93 L. Ed. 721, and 69 S. Ct. 561 (1948),

Great Northern Railway Company v. Sunburst Oil and

Refining Co., 287 U. S. 358, 77 L. Ed, 358, —— S. Ct.

—__., Supreme Lodge, K.P. v. Meyer, 265 U. 8. 33, 68

L. Ed. 888, 44 S. Ct. 4282 (1923). Therefore, unless

the statute is held to violate the federal constitutional

rights of an individual or group of individuals, the

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Supreme Court will not strike down the construction

of a state statute by the highest court of the state.

Consequently, if the state statute here in question is

found to be constitutional by the balancing test men-

tioned in the Letter Carrier case, then the Supreme

Court must uphold the decision of the Court of Appeals.

Neither the express wording of the statute in question

nor the construction of the statute by the Kentucky

courts infringe any more upon the rights of the indivi-

dual employees than did the federal statute in the

Letter Carrier ease, the Hatch Act. There is, however,

a fact question as to whether or not the Kentucky

statute does infringe further upon the right of the em-

ployee than the Hatch Act, and the answer will depend

upon the Supreme Court’s comparison of the wording

of the two statutes. The Kentucky Court of Appeals

deals with this question in the final penultimate para-

graphs of their opinion, and their conclusion is that the

statute may ‘‘in plain and understandable language

forbid a civil service employee from becoming a

partisan candidate for, or for campaigning for, an

elective public office.’’ The Court of Appeals has thus

construed the statute as being in compliance with the

holding in the Letter Carrier case, and therefore

constitutional.

In regard to the objection as to the vagueness or

overbreadth of the Kentucky statute, the Kentucky

Court of Appeals has stated:

“This Court is of the opinion that the implication

in KRS 90.220(2) of the prohibition against

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candidacy is so obvious that the prohibition may

be considered to be expressed in plain and under-

standable language within the requirements of the

Letter Carrier case.’”’ 518 8. W. 2d 777, at 779.

CONCLUSION

It is obvious from the above cited cases concerning

the court’s jurisdiction and the case of U. S. Civil

Service Commission v. National Association of Letter

‘Carriers, supra, that this court is without jurisdiction

and even if so, the law clearly favors the respondent in

this case. Therefore it is respectfully submitted that

this Honorable Court deny the writ of certiorari.

Respectfully submitted,

Burt J. DevTscH

Director of Law

JOHN V. HANLEY

Asst. Director of Law

MartTIn R. GLENN

Asst. Director of Law

200 City Hall

Louisville, Kentucky 40202

Counsel for Respondents