Petition for Writ of Certiorari — Hill v. City of Chester

Supreme Court, u.s.

ri LE D

95-236 AUC 9 1995

UFFICE” OF “TTTE CLERK

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

ROBERT HILL,

PETITIONER

v.

CITY OF CHESTER, PENNSYLVANIA;

THE CITY COUNCIL OF THE CITY OF

CHESTER; ANNETTE BURTON, INDIVIDUALLY

AND IN HER OFFICIAL CAPACITY AS

COUNCILWOMAN OF THE CITY OF CHESTER;

AND CHARLES McLAUGHLIN, INDIVIDUALLY AND

IN HIS OFFICIAL CAPACITY AS COUNCILMAN

OF THE CITY OF CHESTER,

RESPONDENTS

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Alan B. Epstein, Esquire

Attorney for Petitioner

Jablon, Epstein, Wolf & Drucker

The Bellevue, Ninth Floor

Broad Street at Walnut

Philadelphia, PA 19102

(215) 790-0300

QUESTIONS PRESENTED FO!’ REVIEW

1. Do persons convicted of crimes,

who paid their debt to society and

returned to the community, constitute a

"suspect class" for equal protection

purposes in light of the historical record

of discrimination against such persons and

the complete political powerlessness and

vulnerability that they suffer, unique

among all minorities?

2. Has Petitioner met the "rational

basis" standard of equal protection

analysis where the Respondent City

Council voted to oust Petitioner from his

secretarial job with the City of Chester

ie SHEE REG PRET tne A cE RR

because of public pressure brought against

them regarding Petitioner’s criminal

record as a young man two decades

earlier, thereby giving effect to the

unsubstantiated stereotyping and prejudice

of their constituents in violation of this

Court’s teachings in City of Cleburne, Tex.

v. Cleburne Living Center, 473 U.S. 432

(1985)?

3. May conspiracies motivated by

other than racial bias be actionable under

42 U.S.C. §§ 1985(3) and 1986, a question

left open by this Court in Griffin v.

Breckenridge, 403 U.S. 88 (1971)?

TABLE OF CONTENTS

OPINIONS BELOW l

JURISDICTION 2

CONSTITUTIONAL PROVISION

INVOLVED 3

STATEMENT OF THE CASE 4

ARGUMENT 15

I. CONVICTED FELONS

SHOULD BE DEEMED A

SUSPECT CLASS UNDER

EQUAL PROTECTION

ANALYSIS. 15

II. PETITIONER HAS MET THE

RATIONAL BASIS STANDARD

OF EQUAL PROTECTION

REVIEW AS A MATTER OF

LAW. 28

III. CLASSES OTHER THAN RACE

CAN BE THE PREDICATE

FOR A CLAIM UNDER

42 U.S.C. §§ 1985(3)

AND 1986. 53

CONCLUSION 59

APPENDIX:

Memorandum of the Honorable

J.M. Kelly dated March 18,

1993

Order of the Honorable

J.M. Kelly dated June 10,

1993

Memorandum of the Honorable

J.M. Kelly dated August 26,

1994

Judgment Order of the United

States Court of Appeals for

the Third Circuit dated

May 5, 1995

A-1

A-91

TABLE OF AUTHORITIES

PAGE

Americans United for Separation

of Church & State

v. City of Grand Rapids,

980 F.2d 1538

(6th Cir. 1992) 42

Baer v. City of Wauwatosa,

716 F.2d 1117

(7th Cir. 1983) 22

Butts v. Nichols,

381 F.Supp. 573

(S.D. Iowa 1974) 46,47

Cammermeyer v. Aspin,

850 F.Supp. 910

(W.D.Wash. 1994) 33-34

Carbonaro v. Reeher,

392 F.Supp. 753

(E.D. Pa. 1975) 40

Christian Knights of the KKK

v. District of Columbia,

919 F.2d 148

(D.C.Cir. 1990) 42

City of Cleburne, Tex. v. 11,14,19,

Cleburne Living 29,31,32,33,

Center, 34,36,37,39,

473 U.S. 432 (1985) 44,53

Cornelius v. NAACP

Legal Detense

& Educ. Fund, Inc.,

473 U.S. 788 (1985) 42

Davis v. Bucher,

451 F.Supp. 791

(E.D. Pa. 1978) 51

de Botton v. Marple Ip..,

689 F.2d 477

(E.D. Pa. 1988) 57

DeVeau v. Braisted,

363 U.S. 144 (1960) 24

vi

Furst v. New York City

Transit Authority,

631 F.Supp. 1331

(E.D. N.Y. 1986)

Glasson v. City of Louisville,

518 F.2d 899

(6th Cir.),

cert. denied

423 U.S. 930

Gregg v. Lawson,

732 F.Supp. 849

(E.D. Tenn.

1989)

Griffin v. Breckenridge,

403 U.S. 88

(1971)

Griffin High School v.

Illinois High School

Ass’n., 822 F.2d 671

(7th Cir. 1987)

Hilliard v. Ferguson,

30 F.3d 649

(Sth Cir. 1994)

Vii

58

5]

il

39

i,

ne

Hobson v. Wilson, 737 F.2d 1

(D.C. Cir. 1984),

cert. denied

470 U.S. 1084

(1985)

Hunter v. Port Authority of

Allegheny Cty.,

277 Pa.Super. 4,

419 A.2d 631

(1980)

Keating v. Carey,

706 F.2d 377

(2d Cir. 1983)

Kindem v. City of Alameda,

502 F.Supp. 1108

(N.D. Ca.

1980)

Larson v. Miller,

No. 94-2691,

1995 WL 322525

at *6 (8th Cir.,

May 31, 1995)

viii

58

26,46

58

48

54

Lewis v. Alabama Dept. of

Public Safety,

831 F.Supp. 824

(M.D. Ala.

1993) 50

Logan v. Zimmerman Brush Co.,

455 U.S. 422

(1982) 36

Loving v. Virginia,

388 US. 1

(1967) 17

Massachusetts Bd. of Retirement

v. Murgia,

427 U.S. 307

(1976) 25,59,60,62

NAACP v. Alabama,

357 U.S. 449

(1958) 17

NAACP Legal Defense &

Fduc. Fund, Inc.

v. Devine,

727 F.2d 1247

(D.C.Cir.1984),

rev'd on other grounds

sub nom 42

ix

Owens v. Barnes,

711 F.2d 25

(3d Cir. 1983)

Palmore v. Sidoti,

466 U.S. 429

(1984)

Plyler v. Doe,

457 U.S. 202

(1982)

Price v. Cohen,

715 F.2d 87

(3d Cir. 1982)

Richardson v. Miller,

446 F.2d 1247

(3d Cir. 1971)

Richardson v. Ramirez,

418 U.S. 24

(1974)

Roe v. Operation Rescue,

710 F.Supp. 577

(E.D.Pa 1989)

43,44

18

19

58

20,21,23

58

Schware v. Board of

Bar Examiners.

353 U.S. 232

(1957)

secretary of Revenue v.

John’s Vending Co1y.,

453 Pa. 488.

309 A.2d 358

(1973)

Shapiro v. Thompson,

394 US. 618

(1969)

Smith v. Fussenich.

440) F.Supp. 1077

(D. Conn.

1977)

Steftan v. Perry,

41 F.3d 677

(D.C.Cir.

1994)

Terminiello v. Chicago,

337 U.S. 1

(1949)

27,28

49,50

35

4]

United Brothers of Carpenters

& Joiners of America,

Local 610, AFL-CIO,

et al. v. Scott, et al.,

463 U.S. 825

(1983) 56

United States Department

of Agriculture v.

Moreno, 413 U.S. 528

(1973) 31,39

Upshaw v. McNamar,

435 F.2d 1188 (1st Cir.

1970) 21-22

Weber v. Aetna Casualty &

Surety Co.,

406 U.S. 164

(1972) 3]

Weinberger v. Salfi,

422 U.S. 749

(1975) 39

Statutes

18 Pa.C.S.A. §9125 26,49

Le)

28 U.S.C. $1254(1)

xil

28 U.S.C. §1331 3

28 U.S.C. §1343 3

42 U.S.C. §1985 ii,53,54

55,56,58,63

42 U.S.C. §1986 1,53

323 Pa.Code

§11.3-305 4

Other Authority

"Disenfranchisement of

Ex-Felons, A Reassessment,"

25 Stanford L.Rev.

845 (1973) 23

"The Collateral Consequences of

a Criminal Conviction,"

23 Vanderbilt L.Rev.

929 (1970) 24

xiii

Kenneth W. Simmons,

Overinclusion and

Underinclusion:

A New Model,

36 UCLA L. Rev. 447

(1989) 36

Harry Kalven, Jr.,

The Negro and the

First Amendment

140-160 (1965) 42-43

XIV

OPINIONS BELOW

On March 18, 1993, the Honorable

James McGirr Kelly of the United States

District Court for the Eastern District of

Pennsylvania granted defendants’ Motion

to Dismiss in an unreported Opinion

[C.A.No. 92-CV-4357]. That Order was

vacated on June 10, 1993, in response to

plaintiffs Motion to Alter or Amend the

Judgment. Finally, by Order of August

26, 1994, Judge Kelly granted defendants’

Motion for Summary Judgment in an

unreported Opinion. See Opinion and

Order at Appendix, p. A-45.

The Court of Appeals for the Third

]

Circuit affirmed the decision in an

unreported Judgment Order of May 11,

1995 [App. No. 94-1955]. See Judgment

Order of the Court at Appendix, p. A-90.

JURISDICTION

On May 11, 1995, the United States

Court of Appeals for the Third Circuit

affirmed the grant of summary judgment

to defendants [here respondents] in the

court below by a Judgment Order.

This Court has jurisdiction to review

the judgment of the Court of Appeals

pursuant to 28 U.S.C. § 1254(1).

Subject matter jurisdiction existed in

the District Court pursuant to 28 U.S.C.

$§ 1331 and 1343.

CONSTITUTIONAL PROVISION INVOLVED

AMENDMENT XIV, SECTION 1:

All persons born or naturalized in the

United States, and subject to the

jurisdiction thereof, are citizens of the

United States and the State wherein they

reside. 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 within its jurisdiction the equal

protection of the laws.

STATEMENT OF THE CASE

In 1992, following her fall election,

Barbara Bohannan-Sheppard, the first

African-American Mayor of the City of

Chester, appointed Petitioner Robert Hill,

to serve as her Administrative Assistant, a

secretarial position. Pursuant to §305 of

the Chester Home Rule Charter, 323

Pa.Code §11.3-305:

The Mayor may appoint an assistant

to assist in the administration of the

functions of the Mayor. The

4

Administrative Assistant will serve at

the pleasure of the Mayor, shall be

qualified by education and/or

experience to carry out the duties of

the office, and shall be compensated by

a Salary which shall be set by Council

in the Administrative Code or other

ordinance.

Before the appointment, Robert Hill

had informed the Mayor that he had a

prior criminal record arising from a

second degree homicide conviction when

he was fourteen (14) years old and a

statutory rape conviction approximately

twenty (20) years before his appointment.

Robert Hill had reformed himself in

prison, had earned his high-school

equivalency diploma, and had learned

mn

administrative and secretarial skills. After

his release from prison 16 years before his

appointment, Robert Hill gained a

reputation as an excellent legal secretary

and administrator, and became an

ordained minister in the faith of Islam.

Because she knew of, and believed in, his

reformation, Mayor Bohannan-Sheppard

asked that he accept the position despite

his prior criminal record.

The functions of the appointed

position of Administrative Assistant were

Secretarial: Robert Hill helped develop

the infrastructure of the Mayor’s office,

calendared her events, typed her

correspondence and answered her

telephone. He was not a liaison, nor did

he act in the Mayor’s place as her

representative.

Shortly after the election, it was

revealed through a few newspaper

accounts in two local papers that plaintiff

had a criminal past. Plaintiff's former

criminality was only further raised by a

veteran Chester gadfly, the Reverend

Horace Strand, who protested plaintiff's

appointment at a Council meeting on

January 30, 1992. While no

documentation of any other protest or

interference with local political

functioning has been produced, the record

reflects that there were some complaints

about plaintiff being employed in the

Mayor’s office.

On March 26, 1992, a regular meeting

of the Council of the City of Chester was

convened. Respondent Councilwoman

Burton moved, without prior notice, for

the removal of Robert Hill as an

employee of the defendant, City of

Chester. Mayor Bohannan-Sheppard

protested, stating that only the Mayor had

the right of appointment or removal and

that the suggested action was immoral:

Mayor Bohannan-Sheppard said

Section 305 in the Home Rule Charter

States the Mayor has the power to hire

the Chief of Police and her

Administrative Assistant to serve at the

pleasure of the Mayor. Shall be

qualified by education or experience to

Carry Out the duties of the office. Shall

be compensated by a salary which shall

be set by Council in the Administrative

Code or other Ordinances. Mayor

Bohannan-Sheppard said show me the

justification of this action of dismissal

of my Administrative Assistant.

Robert Hill is qualified to hold this

position, he is in the Mayor’s Office,

he is not in Parks and Recreation or

Public Safety. The judicial system of

the law of the land states that once a

person has been convicted of a crime.

then, that person has met the

requirement of the law, then, that

person has served the requirement and

is to be considered to have paid his or

her debt to society. That person is

afforded the same right as other

citizens of the land. What message is

the City Council sending to the citizens

of the judiciary system that we said we

would uphold if elected to office.

What Council seems to be saying is

that if your child makes a mistake and

is convicted of a crime and pays his or

her debt to society, he or she will

never be accepted in society, at least

not by them. I believe that if anyone

who satisfactorily serves time under

our system are [sic] entitled to be

viewed as a citizen in good standing of

the society in which that debt was

payed [sic]. We are here to serve you,

Council is not here to project what

they want to do.

Minutes of the Chester City Council

Meeting of March 26, 1992.

Contrary to the requirements of the

Home Rule Charter, no advance notice

was given regarding these actions and the

10

action was effected by mere motion

instead of ordinance, which requires a ten

day notice and publication in two

newspapers of general circulation. Robert

Hill was not advised that the action was

going to be taken against him, and his

supporters were not allowed to express

their views on the matter.

After being advised by the City

Solicitor that the Mayor was correct, that

Council could not fire Robert Hill,

Respondents, Councilpersons McLaughlin

and Burton, moved to eliminate plaintiff's

Salary by setting it at zero dollars. Of the

1]

three persons present and voting, the

Mayor voted No and Respondents Burton

and McLaughlin voted Yes. The motion

was thus passed and Robert Hill

effectively removed from his position.

The stated purpose of the individual

Respondents of setting Petitioner’s salary

at zero dollars was to force Robert Hill to

leave his employment with the City. The

only reason given by the individual

Defendants for their action was that the

government of the City was being harmed

by the perceived uproar over Petitioner's

criminal past if he continued in the

position of Administrative Assistant.

However, neither individual Defendants

believed the position to be a powerful or

sensitive one, only that the public

perceived it to be so.

The District Court agreed with

Respondents and found Petitioner’s

criminal record of twenty years earlier and

the public reaction to it to be the reason

for Petitioner’s firing. The Court of

Appeals for the Third Circuit affirmed.

Petitioner has brought this matter to

this Court to decide the issue of whether

convicted felons are a suspect class for

equal protection analysis and, if they are

not, whether the District Court and the

Court of Appeals erred in finding that

Respondents violated Petitioner’s equal

protection rights by putting into effect the

prejudices of their constituents in

violation of the "rational relationship"

standard of equal protection analysis as

set forth in City of Cleburne, Tex. v.

Cleburne Living Center, 473 U.S. 432

(1985), in that effectuating the prejudices

of constituents would not be a legitimate

governmental purpose.

14

ARGUMENT

I. CONVICTED FELONS SHOULD BE DEEMED

SUSPECT CLASS UNDER EQUAL

PROTECTION ANALYSIS.

Under the terms of the Fourteenth

Amendment to the United States

Constitution, "No State shall ... deny

to any person within its jurisdiction the

equal protection of the laws." It is.

therefore, contrary to Constitutional

mandates for any state or political

subdivision thereof to deny to any

individual the same protections afforded

to others based upon his or her inclusion

in a class of persons having a common

identity.

1S

To establish a violation of the Equal

Protection Clause, a plaintiff must show

that the categorization used by defendants

to deny him or her equal rights provided

to others invidiously discriminates against

a disfavored group to which he belongs,

without legitimate governmental purpose.

A court’s examination and balancing of

individual and governmental interests

requires different levels of deference to be

shown to the state-created categories

according to the group discriminated

against and the right or interest infringed.

The highest level of scrutiny, known as

16

"strict scrutiny," applies to classifications

infringing upon fundamental rights, such

as freedom of association, NAACP v.

Alabama, 357 U.S. 449 (1958), and to

those which are inherently suspect

because they inordinately burden a group

of citizens traditionally victimized by

discrimination. The archetypal examples

of this sort of group are racial minorities.

Loving v. Virginia, 388 U.S. 1 (1967).

Under this level of scrutiny, the denial of

equal protection will not pass

constitutional muster unless it is necessary

to advance a "compelling state interest."

17

Shapiro v. Thompson, 394 U.S. 618

(1969).

The next level, "intermediate scrutiny,"

applies to classifications affecting less

fundamental rights, such as commercial

speech, and to classifications which are

not so suspect. Actions affecting these

sensitive categories must be "substantially

related to the achievement of

governmental objectives" to pass

constitutional muster. Plyler v. Doe, 457

U.S. 202 (1982). Classes considered

suspect under "intermediate" or "middle

tier" levels of scrutiny include alienage,

18

gender or illegitimacy. See Price vy.

Cohen, 715 F.2d 87, 92 (3d Cir. 1982).

The third level, employing the least

scrutiny, requires the application of the

‘rational relationship" test. It applies to

all other governmental classifications. To

be protected under minimal scrutiny,

classifications "must be rationally related

to a legitimate governmental purpose."

City of Cleburne, Tex. v. Cleburne Living

Center, 473 U.S. 432 (1985).

Petitioner strongly urges that

convicted felons should be considered a

suspect class and that strict scrutiny is

19

necessary to any equal protection analysis

in regard to them.

This Court has never determined the

issue of the status of convicted felons

under equal protection analysis. In

Richardson v. Ramirez, 418 U.S. 24

(1974), the disenfranchisement of

convicted felons was found not to be

unconstitutional. That decision, however,

was based upon Section 2 of the

Fourteenth Amendment, which provides

for reduced representation "when the

right to vote at any election...is

denied...except for participation in rebellion,

or other crime" (emphasis supplied). This

Court rested its conclusion that the state

may disenfranchise felons on

the demonstrably sound proposition

that §1, dealing with voting rights as it

does, could not have meant to bar

outright a form of disenfranchisement

which was expressly exempted from the

less drastic sanction of reduced

representation which §2 imposed for

other forms of disenfranchisement.

Richardson v. Ramirez, 418 U.S. at 55.

See also Owens v. Barnes, 711 F.2d 25, 26

(3d Cir. 1983).

While several lower courts have stated

that convicted felons are not within a

suspect class for equal protection

purposes [Upshaw v. McNamar, 435 F.2d

21

ee Ca Ne ey a ee Te

1188, 1190 (1st Cir. 1970); Baer v. City of

Wauwatosa, 716 F.2d 1117, 1125 (7th Cir.

1983); Hilliard vy. Ferguson, 30 F.3d 649,

652 (5th Cir. 1994)], the statement of that

status is made flatly and without any

stated reasoning behind the decision. It is

respectfully suggested that contrary to the

holding of the court below and of the

other lower courts who have stated the

proposition without analysis, Petitioner

Hill was a member of a suspect class

entitled to the highest level of protection.

Robert Hill is a member of that class

of persons convicted of felonies who have

22

paid their debt to society and are now

again members of the community. He is a

member of a class of persons traditionally

among the most politically powerless in

the most fundamental of ways, often being

constitutionally denied the right to vote.

Richardson v. Ramirez, 418 U.S. 24

(1974). See Note: "Disenfranchisement of

Ex-Felons, A Reassessment," 25 Stanford

L.Rev. 845 (1973). In addition to the

right to vote, ex-convicts may lose

passport rights, the ability to hold public

office, the capacity to testify, the capacity

to serve as a juror, and the capacity to

serve aS a court-appointed fiduciary or

guardian. They may suffer the loss of

domestic rights of various kinds, and

possibly the loss of insurance, pensions, or

workers’ compensation benefits, or even

the right to inherit. See "The Collateral

Consequences of a Criminal Conviction,"

23 Vanderbilt L.Rev. 929 (1970). See also

DeVeau v. Braisted, 363 U.S. 144, 158-159

(1960) (listing further handicaps and

deprivations).

This Court’s definition of a suspect

class for purposes of equal protection

analysis is a broad one:

24

A suspect class is one "saddled with

such disabilities, or subjected to such a

history of purposeful unequal

treatment, or relegated to such a

position of politica] powerlessness as to

command extraordinary protection

from the majoritarian political

process[,]". . . for those that have]

been subjected to unique disabilities on

the basis of stereotyped characteristics

not truly indicative of their abilities.

Massachusetts Bd. of Retirement y.

Murgia, 427 U.S. 307, 313 (1976) (internal

citations omitted).

Ex-convicts are exactly a group of this

sort. They probably are the last group

whom it is considered respectable to

disrespect. Indeed. in Pennsylvania, ex-

convicts are considered so in need of

protection in finding and Keeping

employment that they are the specific

object of a statute making employment

discrimination against them illegal. See

18 Pa.C.S.A. § 9125 which is rooted in

Article 1, Section 1 of the Constitution of

the Commonwealth of Pennsylvania:

Felony and misdemeanor convictions

may be considered by the employer

[re: employment] only to the extent to

which they relate to the applicant’s

suitability for employment in the

position for which he has applied."

18 Pa.C.S.A. § 9125(b).

See also Hunter v. Port Authority of

Allegheny Cty., 277 Pa.Super. 4, 419 A.2d

631 (1980) (discrimination against ex-

26

convict by public employer found

unconstitutional in Pennsylvania) and

Secretary of Revenue v. John’s Vending

Corp., 453 Pa. 488, 309 A.2d 358

(1973)(convicts as victims of stereotyping):

[T]he deeply ingrained public policy of

this State [is] to avoid unwarranted

stigmatization of and unreasonable

restrictions upon former offenders.

This State in recent years has been

unalterably committed to rehabilitation

of those persons who have been

convicted of criminal offenses. To

forever foreclose a permissible means

of gainful employment because of an

improvident act in the distant past

completely loses sight of any concept

of forgiveness for past errant behavior

and adds yet another stumbling block

along the difficult road of

rehabilitation.

Secretary of Revenue Vv. John’s Vending

27

Corp., supra, at 362.

The District Court below, affirmed by

Judgment Order of the Court of Appeals

for the Third Circuit, found as a matter of

law that "[Robert Hill’s] status as a

convicted felon does not place him in a

suspect class." Memorandum of Judge

Kelly at pp. 12-13 [App. p. A-74].

Petitioner respectfully suggests that this

conclusion is improper and urges this

Court to examine and resolve the issue.

Il. PETITIONER HAS MET THE RATIONAL

BASIS STANDARD OF EQUAL PROTECTION

REVIEW AS A MATTER OF LAW.

Assuming arguendo that the court

28

cca aaa

below was correct that ex-felons are not a

“suspect class" requiring the higher "strict

scrutiny" standard of equal protection

analysis, it is still clear that the actions

against Robert Hill as an ex-felon in this

case do not satisfy even the minimum

standard of equal protection, the "rational

basis" standard, as set forth in this Court’s

decision in City of Cleburne, Tex. v.

Cleburne Living Center, 473 U.S. 432

(1985).

The "rational basis" argued by

Defendants and accepted by the court

below was that Defendants reasonably

"did not want a convicted felon and highly

controversial figure to be in the sensitive

position of Administrative Assistant to the

Mayor" [Memorandum of Judge Kelly at

pp. 13-14][App. p. A-76], and that "the

substantial or motivating factor in [Robert

Hill’s] termination . . . was [his] prior

criminal record and the public reaction

thereto" [Memorandum of Judge Kelly at

p. 6][App. p. A-57]. Respondent

Councilwoman Burton clearly testified

that it was the view of her constituents

and not her own perceptions which

controlled her actions.

30

—”

3

a ee)

In defining the basic inquiry of the

rational basis test, this Court has stated

that to be protected under minimal

scrutiny, classifications "must be rationally

related to a legitimate governmental

purpose." City of Cleburne, Tex. v.

Cleburne Living Center, 473 U.S. 432

(1985). However, simply discerning any

legislative reason will not serve to satisfy

the rational basis requirement. See

United States Department of Agriculture

v. Moreno, 413 U.S. 528 (1973): Weber v.

Aetna Casualty & Surety Co., 406 U.S.

164 (1972). Accordingly, the

31

Respondents’ adherence to the irrational

views of the voters of the City of Chester

cannot be condoned. In City of Cleburne,

Tex. v. Cleburne Living Center, 473 U.S.

432 (1985), this Court took exception to

the City’s contention that the exclusion of

group homes for the retarded from the

City through zoning regulations was

necessary because of the public’s

perception of retarded persons:

First, the [City] Council was concerned

with the negative attitude of the

majority of property owners located

within 200 feet of the [group home], as

well as with the fears of eiderly

residents of the neighborhood. But

mere negative attitudes, or fear,

unsubstantiated by factors which are

32

:

properly cognizable in a zoning

proceeding, are not permissible bases

for treating a home for the mentally

retarded differently from apartment

houses, multiple dwellings and the like.

It is plain that the electorate as a

whole, whether by referendum or

otherwise, could not order city action

violative of the Equal Protection

Clause . . . and the city may not avoid

the strictures of that Clause by

deferring to the wishes or objections of

some fraction of the body politic.

"Private biases may be outside the

reach of the law, but the law cannot,

directly or indirectly, give them effect"

... [D]enying a permit based on such

vague, undifferentiated fears is again

permitting some portion of the

community to validate what would

otherwise be an equal protection

violation.

City of Cleburne, Tex. v. Cleburne Living

Center, supra, 473 U.S. at 448-449

(citation omitted).

See also Cammermeyer vy. Aspin, 850

33

F.Supp. 910, 917 (W.D.Wash. 1994)(‘If

the policy is shown to be based solely on

prejudice, it cannot survive rational basis

review’ ):

"[t]he State may not rely on a

classification whose relationship to an

asserted goal is so attenuated as to

render the distinction arbitrary or

irrational. See Zobel v. Williams, 457

U.S. 55, 61-63 (1982); United States

Dept. of Agriculture v. Moreno, 413

U.S. 528, 535 (1973). Furthermore,

some objectives --such as "a

bare...desire to harm a politically

unpopular group," id., at 534--are not

legitimate state interests.

Cleburne, 473 U.S. at 446-447.

Indeed, were this not the case

"rationality review would be tantamount

to no review at all -- a result manifestly

34

inconsistent with Supreme Court

precedent." Steffan v. Perry, 41 F.3d 677,

709 (D.C.Cir. 1994) (Wald, J., dissenting).

As Justice Blackmun has reminded.

the standard, while not difficult to meet.

prohibits irrational objectives:

[flor over a century, the Court has

engaged in a continuing and

occasionally almost metaphysical effort

to identify the precise nature of the

Equal Protection Clause’s guarantees.

At the minimum level, however, the

Court "consistently has required that

legislation classify the persons it affects

in a manner rationally related to

legitimate governmental objectives.”

This is not a difficult standard for a

State to meet when it is attempting to

act sensibly and in good faith. But the

"rational-basis standard is ’not a

toothless one,”; the classificatory

scheme must "rationally advance] a

35

reasonable and identifiable

governmental objective."

Logan vy. Zimmerman Brush Co., 455 U.S.

422, 439 (1982)(citations omitted)

Cleburne, supra, and its progeny

indicate that a rational basis for a

discriminatory action against a Petitioner

will not be found where the classification

is likely to stigmatize or where the lack of

fit between the means and the ends

sought evidences the existence of an

impermissible prejudice. See Kenneth W.

Simmons, Overinclusion and

Underinclusion: A New Model, 36 UCLA L.

Rev. 447, 452-453 (1989).

36

Here, the City Council of Chester and

the other Respondents admittedly

succumbed to the views of their

constituents that a former convict should

hold no position as a clerical assistant to

the Mayor. These views reflect

unsubstantiated fear and prejudice of the

kind found impermissible in Cleburne.

They represent today’s passing wave of

meanspiritedness and intolerance in

regard to convicts. Succumbing to the

unsubstantiated prejudices of

Respondents’ constituents and giving them

the imprimatur of the State is

37

impermissible because it rests upon, and

in turn reinforces, the stigmatizing

stereotypes. Such State imprimatur

against convicts acts to perpetuate

habitual assumptions by blocking the

exposure of the community involved to

the experiences that might have led them

to conclude that convicted felons who

have paid their debt to society and have

returned to the community can be

responsible citizens and can be fine

workers in private or public employment:

... If the Constitutional conception

of ‘equal protection of the laws’ means

anything, it must at the very least mean

that a bare Congressional desire to

38

harm a politically unpopular group

cannot constitute a /egitimate

governmental interest [under the

rational basis test].

U.S. Dept. of Agriculture v. Moreno, 413

U.S. 528, 534 (1973)(emphasis in

original).

Similarly see City of Cleburne, Tex. v.

Cleburne Living Center, supra (re: the

retarded); Weinberger v. Salfi, 422 U.S.

749, 772 (1975); Griffin High School v.

Ilinois High School Ass’n., 822 F.2d 671,

675-76 (7th Cir. 1987)("Even under the

rational basis test, however. a regulation

may violate the Equal Protection Clause if

it can be shown that the sole purpose of

the regulation was the desire to injure a

39

particular class of persons").

The United States District Court for

the Eastern District of Pennsylvania has

specifically held that the public’s desire

that ex-felons not be granted a

governmental benefit could not constitute

a legitimate state purpose under the

rational basis test:

The state argues that, as a political

~Teality, the legislature would not

establish any assistance program at all

unless it contained the provisions

allowing the agency [the PHEAA] to

deny felons aid. We reject this...

basis, since political considerations do

not constitute a legitimate state

purpose.

Carbonaro v. Reeher, 392 F.Supp. 753,

757 (E.D. Pa. 1975).

40

Giving State sanction to the prejudices

of their constituents, as Respondents did

here, parallels the "heckler’s veto" usually

noted in the First Amendment context.

The First Amendment forbids the

government to silence speech based on

the reaction of a hostile audience, unless

there is a "clear and present danger" of

grave and imminent harm. See, €.2.,

Terminiello v. Chicago, 337 U.S. 1, 4

(1949). Otherwise, a vocal minority (or

even majority) could prevent the

expression of disfavored viewpoints--a

result contrary to the central purpose of

41

the First Amendment’s guarantee of free

expression. See Christian Knights of the

KKK vy. District of Columbia, 919 F.2d

148, 150, 152-53 (D.C.Cir.1990) (Edwards,

J., concurring; Wald, J., dissenting);

NAACP Legal Defense & Educ. Fund, Inc.

v. Devine, 727 F.2d 1247, 1261-62

(D.C.Cir.1984), rev’d on other grounds

sub nom.; Cornelius v. NAACP Legal

Defense & Educ. Fund, Inc., 473 U.S. 788

(1985); Americans United for Separation

of Church & State v. City of Grand

Rapids, 980 F.2d 1538, 1553 (6th

Cir.1992); Harry Kalven, Jr., The Negro

42

ae—

and the First Amendment, 140-160 (1965).

These constitutional principles mandate

that government may not disadvantage a

person on the basis of his status or his

views solely for fear that others may be

offended or angered by them. This

Court’s decision in Palmore y. Sidoti, 466

U.S. 429 (1984) set forth a parallel

principle. There, the court below gave

custody of a white child to the child’s

father when the mother married a black

man. The lower court’s reasoning was

that it was in the best interests of the

child that he not be subjected to the

43

prejudices of others were he to remain in

an interracial family. This Court

disagreed:

[t]he Constitution cannot control such

prejudices but neither can it tolerate

them. Private biases may be outside

the reach of the law, but the law

cannot, directly or indirectly, give them

effect.

Palmore v. Sidoti, 466 U.S. at 433.

Courts cannot, as a matter of law, give

effect to irrational private biases under

Cleburne and Palmore. Since that is

exactly what was done by respondents

here, the affirmance by the Court of

Appeals of the District Court’s allowance

of respondents’ acts, should be vacated

4a

2

4

4

and the case remanded.

Robert Hill has also demonstrated that

the rational relationship test was not met

since his criminal record had no rational

relationship to the secretarial job at issue.

Certainly the rational relationship

Standard is not met where an individual’s

Status aS an ex-convict can have no

rational connection to his secretarial

duties as an aid to a municipality’s

executive officer. Several Pennsylvania

decisions, and several federal decisions

elsewhere, have determined that there is

no rational relationship between a former

criminal conviction and the duties of most

occupations. See Hunter v. Port Authority

of Allegheny County, 277 Pa.Super. 4, 419

A.2d 631, 638 (1980) (denial of

employment to ex-convict as bus driver

was unconstitutional, holding that "when a

public employer denies employment to an

individual because of his criminal record,

the employer’s denial of employment must

be reasonably related to the furtherance of

a legitimate public objective"); Butts v.

Nichols, 381 F.Supp. 573 (S.D. Iowa 1974)

(unlimited prohibition against employment

of convicted felons in civil service

46

positions in the state was a violation of

equal protection):

[t]here is no doubt that the State could

logically prohibit and refuse

employment in certain positions where

the felony conviction would directly

reflect on the felon’s qualifications for

the job (e.g., conviction of

embezzlement and a job requiring the

handling of large sums of money). ...

[Here] there is simply no tailoring in

an effort to limit these statutes to

conform to what might be legitimate

State interests.

. . No consideration is given to the

nature and seriousness of the crime in

relation to the job sought. The time

elapsing since the conviction, the

degree of the felon’s rehabilitation, and

the circumstances under which the

crime was committed are similarly

ignored.

Butts v. Nichols, 381 F.Supp. at 580, 581.

47

See also Kindem vy. City of Alameda,

502 F.Supp. 1108 (N.D. Ca. 1980)(re: city

charter which prohibited municipal

employment of all ex-felons. The court

stated that even under the "low threshold"

of rational basis evaluation, it could not

accept the ex-felon prohibition).

Again evaluating a statute which

barred ex-felons from employment with

licensed private detective agencies and

security guard agencies under the rational

basis test, the United States District Court

for the District of Connecticut has found

the statute violative of equal protection:

48

[the statute] fails to consider probable

and realistic circumstances in a felon’s

life, including the likelihood of

rehabilitation, age at the time of

conviction, and other mitigating

circumstances relating to the nature of

the crime and degree of participation.

Smith v. Fussenich, 440 F.Supp. 1077,

1080 (D. Conn. 1977).

That court largely posited its decision on

the Connecticut statute which prohibited

employers (other than law enforcement

departments) from rejecting applicants

solely because of a prior conviction of a

crime, a statute very similar to the

controlling provisions of 18 Pa.C.S.A.

$9125 herein:

The irrationality of the enactment

ae

becomes most pronounced when it is

compared with [the statute noted

above].

Smith v. Fussenich, 440 F.Supp. at 1080.

See also Furst v. New York City Transit

Authority, 631 F.Supp. 1331 (E.D. N.Y.

1986)(policy of discharging ex-felon

violative of equal protection under

rational basis test); Lewis v. Alabama

Dept. of Public Safety, 831 F.Supp. 824,

826 (M.D. Ala. 1993)(noting that "simply

discerning any regulatory reason, however

plausible, will not serve to satisfy the

rational basis requirement," court found a

violation of equal protection in a statute

50

which disallowed the placement of ex-

felons on a list of wrecker operators to be

called on a rotating basis by the state

troopers); Gregg v. Lawson, 732 F.Supp.

849, 854 (E.D. Tenn. 1989) (citing

Schware v. Board of Bar Examiners, 353

U.S. 232 (1957) -- "any qualification or

requirement must bear a rational relation

to the person’s fitness to engage in the

occupation or business [at issue]"); and

Davis v. Bucher, 451 F.Supp. 791 (E.D.

Pa. 1978)(City of Philadelphia refused to

hire applicants with prior histories of drug

abuse, without regard to the applicant’s

qualifications, present rehabilitative status,

or nature of the job for which they had

applied. The court held that equal

protection was violated because no

consideration was given to individual

factors such as recent employment history,

successful maintenance on a methadone

program, or evidence of freedom from

drug use and declared the policy

overbroad and irrational).

As the several decisions cited indicate,

the District Court in this case, and the

Court of Appeals for the Third Circuit in

affirming, took too narrow a view of this

$2

Court’s teachings in Cleburne, supra, and

the standard under Cleburne as it applies

to the claims of Robert Hill should be

clarified.

ITI. CLASSES OTHER THAN RACE CAN BE

THE PREDICATE FOR A CLAIM

UNDER 42 U.S.C. §§ 198 AND 1986.

There is a split in the Circuit Courts of

Appeal on the issue of whether §1985(3)

liability can be based on actions

demonstrating bias against a class other

than one based on race. In

contradistinction to the holding of the

District Court in this case, affirmed by

Judgment Order of the Third Circuit, the

$3

Court of Appeals for the Eighth Circuit

has recently held that "Sec. 1985(3)’s

reach extends beyond racial animus."

Larson vy. Miller, No. 94-2691, 1995 WL

322525 at *6 (8th Cir., May 31, 1995).

The Court there found that the class of

handicapped females was a class of

persons reached by §1985(3). Petitioner

believes that the class of convicted felons

who have paid their debt to society and

returned to the community is also entitled

to the protections of that statute.

The provisions of 42 U.S.C. §1985(3)

state in applicable part as follows:

54

If two or more persons in any state or

territory conspired . . . for the purpose

of depriving, either directly or

indirectly, any person ox class of

persons of the equal protection of the

laws, or of equal privileges and

immunities under the laws; . . . [and] in

any case of conspiracy set forth in this

section, if one or more persons

engaged therein do, or cause to be

done, any act in furtherance of the

object of such conspiracy, whereby

another is injured in his person or

property, or deprived of having and

exercising any right or privilege of a

citizen of the United States, the party

sO injured may have an action for the

recovery of damages, occasioned by

such injury or deprivation, against any

one or more of the conspirators.

42 U.S.C. §1985(e).

The four elements of a cause of action

for a claim brought pursuant to the

provisions of 42 U.S.C. § 1985(3) are

55

(1) a conspiracy; (2) for the purpose of

depriving, either directly or indirectly,

any person or class of persons of the

equal protection of the law or equal

privileges or immunities under the law;

and (3) an act in furtherance of the

conspiracy; (4) whereby a person is

either injured in his person or property

or deprived of any right or privilege of

a citizen of the United States.

United Brothers of Carpenters & Joiners

of America, Local 610, AFL-CIO, et al. v.

Scott, et al., 463 U.S. 825, 829 (1983).

Petitioner Hill charged that there was

a conspiracy against him as a member of

the class of persons who had been Ya

convicted of a felony and who had paid

their debt to society and returned to the

community.

Unlike a § 1983 claim, a § 1985

56

ae

conspiracy must arise from a racial or

otherwise class-based motivation. While

discriminatory purpose is not presumed

and intentional discrimination must be

shown [de Botton y. Marple Tp., 689 F.2d

477, 482 (E.D. Pa. 1988)], claims based on

other than racial discrimination will be

allowed:

[a]lthough the Supreme Court in

Griffin [v. Breckenridge, 403 U.S. 88

(1971)] left open the question whether

conspiracies motivated by something

other than racial bias would be

actionable under § 1985(3), the Third

Circuit answered this question in the

affirmative in Novotny v. Great

American Fed. Sav. & Loan Ass’n, 584

F.2d 1235, 1243-44 (3d Cir. 1978),

vacated on other grounds, 442 U.S. 366

(1979). In Novotny, the Third Circuit

$7

held that sex discrimination falls within

the categories of animus condemned by

§ 1985(3).

Roe v. Operation Rescue, 710 F.Supp.

577, 581 (E.D.Pa 1989).

See also Richardson v. Miller, 446 F.2d

1247 (3d Cir. 1971)(person who criticized

employer for discriminatory practices

protected under §1985(3)); Hobson v.

Wilson, 737 F.2d 1 (D.C. Cir. 1984), cert.

denied 470 U.S. 1084 (1985)(anti-war and

civil rights political organizations);

Keating v. Carey, 706 F.2d 377 (2d Cir.

1983)(Republicans); Glasson v. City of

Louisville, 518 F.2d 899 (6th Cir.), cert.

denied 423 U.S. 930, 975 (political

58

protestors).

The class of ex-convicts is certainly a

suspect class as defined by the United

States Supreme Court in Massachusetts

Bd. of Retirement v. Murgia, 427 U.S.

307, 313 (1976). The issue remains open

and ripe for resolution at this time.

CONCLUSION

Ex-convicts should be considered a

Suspect class entitled to strict scrutiny of

any discriminatory action against them by

a governmental actor because they have a

history of purposeful unequal treatment

based on stereotyped characteristics and

59

have been relegated to a position of

powerlessness within the political system

since it is constitutionally permissible to

deny them even the right to vote. As

such, they should command extraordinary

protection from the majoritarian political

process as noted in Massachusetts Bd. of

Retirement v. Murgia, 427 U.S. 307

(1976).

Petitioner Robert Hill was terminated

from his employment as the

Administrative Assistant to the Mayor of

Chester, Pennsylvania, because he had a

record of criminal activity almost twenty

60

ee Te ee

years before his discharge. The members

of City Council of Chester improperly

voted to terminate his employment

because of political pressure by a small

but vocal minority of the voters of Chester

who suggested that Robert Hill, an

admittedly skilled worker, should not be

the Mayor’s assistant solely because he

had a criminal record, unrelated to the

job he was hired to perform. This

violated Petitioner Hill’s right to equal

protection.

Even if ex-convicts are not found to be

a Suspect class, the termination of an ex-

61

convict based on the unsubstantiated

fears of the constituents of a

governmental actor is not a /egitimate

governmental purpose. Further, the

termination of an administrative secretary

because of a thirty year old second degree

homicide conviction bears no rational

relationship to any governmental purpose.

Certainly, the issues raised regarding the

level of constitutional scrutiny to be

applied to the class of tens of thousands

of American felons who are released from

prisons each year is one which requires

prompt resolution by this Court.

62

Lastly, the class-based animus

necessary to a §1985(3) claim can be

| based upon a class other than a racial

one, é.g., the class of convicted felons.

The decisions of the Circuit Courts of

Appeal are divided on this issue which

can be resolved by the consideration of

es ee en Y

this Court.

. JABLON, EPSTEIN, WOLF & Fo

yo B. — in

i ome ng etitioner,

i Robert Hill

| Ninth Floor

The Bellevue

| Broad Street at Walnut

Philadelphia, PA 19102

(215) 790-0300

Dated: August 9, 1995

| 63

APPENDIX

A-]

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT HILL : CIVIL ACTION

v. .

CITY OF | NO, 92-4357

CHESTER, et al. :

MEMORANDUM

J. M. KELLY, J. MARCH 18, 1993

Presently before the court is

Defendant’s Motion to Dismiss Plaintiff's

Complaint Pursuant to Federal Rule of

Civil Procedure 12(b)(1) and (6). This

court has jurisdiction over this matter

pursuant to 28 U.S.C. §§ 1331 and 1343.

Plaintiff, Robert Hill, a former

Administrative Assistant to the Mayor of

A-2

the City of Chester, brought this action

against the City of Chester, Pennsylvania

("Chester"), the City Council of Chester

(the "City Council"), and Annette Burton

and Charles McLaughlin, both members of

the City Council.

In 1992, Barbara Bohannan-Sheppard,

the Mayor of Chester (the "Mayor"),

appointed Plaintiff to be one of her

Administrative Assistants pursuant to the

Mayor’s power under the Chester Home

Rule Charter.’ An Administrative

' In the context of a motion to dismiss

pursuant to Federal Rule of Civil Procedure

12(b)(6), this court is required to view the facts

in the light most favorable to the nonmoving

A-3

Assistant’s duties included organizing the

office infrastructure, scheduling, answering

telephones, attending and taking notes at

meetings, and _ supervising the word

processing work of the Mayor’s office. The

Mayor was aware at the time of the

Plaintiffs appointment as an Administrative

Assistant that Plaintiff had served a ten-

year prison sentence for homicide charges

brought when Plaintiff was fourteen years

old, and that Plaintiff had also served a

sixteen month prison sentence resulting

party. Thus, this statement of facts was taken

largely from Plaintiff's Complaint.

A-4

from charges of engaging in intercourse

with a minor. While incarcerated, Plaintiff

earned a G.E.D. (the equivalent of a high

school diploma) and became proficient in

typing and other office skills. In the years

following Plaintiffs incarceration, he

successfully pursued a career as a legal

secretary/office manager and earned respect

in the legal community in which he was

employed. Plaintiff also married, had three

children, and became a minister in the

religion of Islam.

After Plaintiff's appointment as an

Administrative Assistant, ministers of

A-5

various religions in Chester and other

individuals protested the appointment,

pressuring members of the City Council to

terminate Plaintiffs employment. On

March 26, 1992, Councilwoman Annette

Burton ("Councilwoman Burton"),

presented a motion before the City Council

to remove Plaintiff from the City’s payroll.

This motion was seconded by Councilman

Charles McLaughlin ("Councilman

McLaughlin"). Councilwoman Burton

withdrew her motion, however, after the

Solicitor of Chester advised that the

Administrative Assistant to the Mayor

A-6

served only at the pleasure of the Mayor,

and therefore, the City Council did not

have the authority to terminate Plaintiff.

Subsequently, Councilwoman Burton moved

instead to set Plaintiffs salary at zero,

thereby effectively eliminating Plaintiff's

continued employment with Chester.

Councilwoman’ Burton’s’ motion’ was

seconded by Councilman McLaughlin, and

the City Council voted two to one in favor

of eliminating Plaintiff's salary. In addition,

without any authority to do so, Defendants

withheld Plaintiff's pay for work performed

up to the time Defendants introduced and

Ce ee a ae ee ee me 2 ADM. sebS wane

A-7

passed the motion which eliminated his

salary. Plaintiff subsequently resigned from

his position with the Mayor.

A motion to dismiss under Federal

Rule of Civil Procedure 12(b)(6) tests the

legal sufficiency of a complaint. See,

Conley_v. Gibson, 355 U.S. 41, 45-46

(1957); Johnsrud v. Carter, 620 F.2d 29, 33

(3d Cir. 1980). A court must determine

whether the plaintiff would be entitled to

relief under any set of facts which could be

established in support of his claim. Conley,

355 U.S. at 45-46; Markowitz v. Northeast

Land Co., 906 F.2d 100, 103 (3d Cir. 1990).

A-8

In reviewing a motion to dismiss, all

allegations in the complaint and _ all

reasonable inferences that can be drawn

therefrom must be accepted as true and

viewed in the light most favorable to the

nonmoving party. See, Jenkins _v.

McKeithen, 395 U.S. 411, 421 (1969); D.P.

Enterprises, Inc. _v. Bucks County

Community College, 725 F.2d 943, 944 (3d

Cir. 1984).

Defendants argue that Plaintiff's

Complaint fails to state a claim for

violations of Plaintiffs right to freedom of

association under the first and fourteenth

A-9

amendments to the United States

Constitution. The United States Court of

Appeals for the Third Circuit addressed the

issue of a violation of a government

employee’s right to freedom of association

in Rode v. Dellarciprete, 845 F.2d 1195 (3d

Cir. 1988). The court stated:

Government employment does

not require an employee to

forego the exercise of the right

to freedom of association. . .

Employees, however, who claim

that adverse employment action

was taken against them based

upon the exercise of their

associational rights must show

that they were engaged in

constitutionally protect conduct,

which conduct was a "substantial"

or "motivating factor" in the

government employer’s decision.

A-10

Mt. Healthy City School District

Board of Education v. Doyle, 429

U.S. at 287, 97 S.Ct. at 576.

Two sometimes overlapping

types of protected association

have been recognized:

associations founded on intimate

human relationships in which

freedom of association is

protected as a _ fundamental

element of liberty, and

associations formed for the

purpose of engaging in activities

protected by the first

amendment, such as the exercise

of speech, assembly, and religion.

Roberts v. United States Jaycees,

468 U.S. 609, 617-18, 104 S.Ct.

3244, 3249, 82 L.Ed.2d 462

(1984).

In light of the above law, this court

finds that Plaintiff's Complaint fails to state

a cause of action for breach of Plaintiff's

A-11

right of freedom of association. As

indicated above, Plaintiff must assert that

he was engaged in constitutionally protected

conduct and that such conduct was a

"substantial" or "motivating factor" in the

decision to terminate Plaintiff’s

employment. It appears from Plaintiff’s

Complaint that the substantial or motivating

factor in Plaintiff's termination was not

Plaintiff's association with the Mayor, but

instead, was Plaintiff's prior criminal record.

In addition, even if this court were to

find that Plaintiff's Complaint adequately

pleaded that Plaintiff's association with the

A-12

Mayor was a substantial or motivating

factor in Plaintiff's termination, Plaintiff has

failed to demonstrate that he was engaged

in activities protected by the Constitution.

In order to fulfill this requirement, Plaintiff

must assert that Plaintiff's employment by

the Mayor was an association afforded

constitutional protection. Not _ all

associations are protected by the

constitution. As indicated in Rode, two

types of associations have been recognized

as requiring constitutional protection:

associations founded on intimate human

relationships, and those formed for the

A-13

purpose of engaging in activities protected

by the first amendment, such as exercise of

speech, assembly, and religion. Id.

Plaintiffs employment relationship

clearly does not fall within the category of

an association founded on an intimate

human relationship. Moreover, Plaintiff's

employment relationship with the Mayor

implicates none of the protections afforded

by the first amendment. Plaintiff's

association with the Mayor was an

association in the literal sense, but not an

association "for the advancement of beliefs

and ideas." NAACP vy. Alabama, 357 U.S.

A-14

449, 460 (1958). Plaintiff was employed as

an administrative assistant engaging in

scheduling and office-related activities.

Because Plaintiff performs’ these

administrative functions for a_ political

figure does not make plaintiff's job an

association involving political expression, as

the Plaintiff argues. This court finds that

Plaintiff has failed to allege a breach of his

right to freedom of association under the

first and fourteenth amendments.

Accordingly, Count I of Plaintiffs

Complaint will be dismissed.

Defendants argue next that Counts II

ee

A-15

and III of Plaintiff's Complaint fail to state

a claim for violation of Plaintiff's liberty

and property rights protected by the 14th

amendment.’ Plaintiff claims that the

Defendants violated his liberty interest by

violating his "personal privacy and

reputation at the hands of persons clothed

with the authority of the state.’ This court

must determine whether the claimed

interests are within the 14th amendment’s

protection of liberty and property.

‘ The Due Process Clause of the 14th

Amendment provides: "... nor shall any State

deprive any person of life, liberty, or property

without due process of law;....” U.S. Const.

amend. XIV.

, Plaintiffs Complaint at 1 46.

A-16

In Board of Regents of State Colleges

v. Roth, 408 U.S. 564 (1972), the United

States Supreme Court determined that the

14th amendment did not require a hearing

prior to the nonrenewal of a nontenured

state teacher’s contract unless the plaintiff

could demonstrate that the nonrenewal

deprived plaintiff of a liberty or property

interest. The court held that the

nonrenewal of plaintiff's contract was not

tantamount to a deprivation of liberty,

absent charges against him implicating his

good name, reputation, honor, or integrity;

and absent any stigma or _ disability

A-17

foreclosing other employment. Id. at 573-

74. The Court stated that "[i]t stretches the

concept too far to suggest that a person is

deprived of ‘liberty’ when he is simply not

rehired in one job but remains as free as

before to seek another." Id. at 575 (citing

Cafeteria Workers v. McElroy, 367 U.S.

886, 895-96 (1961)). See Bishop v. Wood,

426 U.S. 341 (1976) (police officer’s liberty

interest not violated where false explanation

given for dismissal and where reasons for

discharge never made public).

In our case, Plaintiff claims that the

City Council voted to reduce his salary to

A-18

zero because of Plaintiff's prior criminal

record. Plaintiff does not allege that any of

the Defendants accused Plaintiff of

wrongdoing while employed by the Mayor.

Plaintiff also does not claim that

Defendants impugned his name, reputation,

honor, or integrity in any way as a result of

wrongdoing in Plaintiffs position as an

Administrative Assistant. Also, there is no

suggestion that the Defendants imposed a

stigma on Plaintiff that foreclosed his

freedom to seek other employment

opportunities. The only stigma that may

have resulted from Plaintiff's discharge was

A-19

based on Plaintiffs prior criminal record.

Plaintiff has not alleged any facss which

demonstrate that Defendants claimed

improprieties on Plaintiff's part while

employed as an Administrative Assistant

that may have acted as a stigma to Plaintiff

affecting his ability to obtain future

employment. Thus, this court finds that

Plaintiff has failed to state a claim for

violation of Plaintiff's liberty interests

guaranteed by the 14th amendment.

Accordingly, Count II of Plaintiff's

Complaint will be dismissed.

Plaintiff also claims that his due

A-20

process rights under the 14th amendment

were violated because he had a property

interest in his position as Administrative

Assistant to the Mayor. In Roth, the

Supreme Court defined a property interest

protected by the 14th amendment as

follows:

To have a property interest in a

benefit, a person clearly must

have more than an abstract need

or desire for it. He must have

more than a_e utiateral

expectation of it. He must,

instead, have a legitimate claim

of entitlement to it.

* * *

Property interests, of

course, are not created by the

Constitution. Rather, they are

created and their dimensions are

defined by existing rules or

A-21

understands that stem from an

independent source such as state

law-rules or understandings that

secure certain entitlement to

those benefits.

Roth, 408 U.S. at 577. Thus, whether

Plaintiff had a property interest recognized

by the 14th amendment is determined by

reference to state law. Id.; Bishop v. Wood,

426 U.S. 341, 344 (1976).

In Perry v. Sinderman, 408 U.S. 593,

601 (1972), the Court said that a "person’s

interest in a benefit is a ’property’ interest

for due process purposes if there are...

rules or mutually explicit understandings

that support his claim of entitlement to the

A-22

benefit and that he may invoke at a

hearing." In Pennsylvania, absent an

express statutory or contractual right

granting tenure in public employment, a

public employee remains "an employee at

will who could be discharged at any time."

Hoffman _v. Montour County, 411 A.2d

1319, 1320 (Pa. Commw. Ct. 1980). In

addition, Pennsylvania law provides that

public employees have no_ contractual

entitlement to dismissals only for cause

unless the legislature has expressly provided

tenure for a given class of employees.

Rosenthal v. Rizzo, 555 F.2d 390, 392 (3d

A-23

Cir.) (citing Mahony v. Philadelphia

Housing Auth., 320 A.2d 459 (1974), cert.

denied, 419 U.S. 1122 (1975)), cert. denied.

434 U.S. 892 (1977).

In the case at bar, Plaintiff served in

his position as Administrative Assistant at

the "pleasure of the Mayor" and his salary

was to be set by the City Council.’

. Section 305 of the City of Chester

Home Rule Charter provides:

The mayor may appoint

an assistant to assist in

the administration of the

functions of the Mayor.

The Administrative

Assistant will serve at

the pleasure of the

Mayor, shall be qualified

by education and/or

expertise to carry out

A-24

Plaintiff had no property interest in

continued employment under the Chester

Home Rule Charter because, serving at the

"pleasure of the Mayor," Plaintiff had no

legitimate claim of entitlement to continued

employment with the Mayor. In addition,

the City Council acted within its rights

under the Chester Home Rule Charter in

reducing Plaintiffs salary. To the extent

that the City Council reduced Plaintiff's

salary to an unreasonable level, Plaintiff can

the duties of the office,

and shall be

compensated by a salary which shall be set by

Council in the Administrative Code or other

ordinance.

323 Pa. Code § 11.3-305 (1980)

A-25

pursue state law claims for relief. The City

Council’s reduction of Plaintiff's salary does

not ipso facto grant Plaintiff a property

right to continued employment protected by

the Constitution. On the contrary, Plaintiff

can pursue whatever remedies are available

for unreasonable reduction in Plaintiff's

Salary by the City Council. This court finds

that Plaintiff did not have a property

interest in his employment as an

Administrative Assistant with the City of

Chester. Count III of Plaintiff's Complaint

will be dismissed.

Defendants argue that Count IV of

A-26

Plaintiff's Complaint fails to state a claim

for a violation of Plaintiff's equal protection

rights under the 14th amendment.

Plaintiff's Complaint alleges that Plaintiff

was a member of a class of "persons

convicted of felonies who have paid their

debt to society and are now again members

of the community," and that Defendants

intentionally discriminated against Plaintiff

because of his membership in that class.

The first step in evaluating an equal

protection challenge to certain state action

is to identify the level of scrutiny that must

be applied. "Unless a statute provokes

A-27

strict judicial scrutiny’ because it interferes

with a ‘fundamental right’ or discriminates

against a ‘suspect class,’ it will ordinarily

survive an equal protection attack so long

as the challenged classification is rationally

related to a _ legitimate government

purpose." Kadrmas v. Dickenson Public

Schools, 487 U.S. 450, 457-58 (1988) (citing

San Antonio Indep. Sch. Dist. v. Rodriguez,

411 U.S. 1, 16-17 (1973); Plyler v. Doe, 457

U.S. 202, 216-217 (1982); Lying v.

Automobile Workers, 485 U.S. 360, 370

(1988)).

This court finds that Plaintiff’s

A-28

employment with the Mayor did not

implicate a fundamental right guaranteed by

the Constitution, and Plaintiff, being a

convicted felon, was not a member of a

suspect class. Thus, the rational basis test

is the applicable level of scrutiny to the

state action involved here. See Schanuel v.

Anderson, 546 F.Supp. 519, 524 (S.D. II.

1982) (rational basis test applied to

challenge of state statute prohibiting

employment in certain jobs of convicted

felon for period of ten years following

conviction), aff'd, 708 F.2d 316 (7th Cir.

1983); Carbonaro v. Reeher, 392 F.Supp.

A-29

753, 757 (E.D. Pa. 1975) (rational basis test

applied to challenge of state statute that

required former felons to prove satisfactory

character to receive financial assistance for

postsecondary education); Butts v. Nichols,

381 F.Supp. 573, 579 (S.D. Iowa 1974)

(rational basis test applied to challenge of

State statute prohibiting employment of

convicted felons in civil service positions).

The rational basis test is defined as

"whether the challenged state action

rationally furthers a legitimate state purpose

or interest." Rodriguez, 411 U.S. at 55.

Thus, to withstand review, the Defendants

A-30

need only demonstrate that their actions in

reducing Plaintiff's salary to zero because of

his prior felony convictions, were rationally

related to a legitimate state purpose.

Defendants argue that the purpose for

reducing Plaintiff's salary was because the

Defendants did not want a convicted felon

and "highly controversial! figure" to be in the

"sensitive position of Administrative

Assistant to the Mayor." Defendants

argue additionally that because the Chester

Home Rule Charter required that the

Mayor "should not have been convicted of

Def.’s Mem. Supp. Mot. Dismiss at

12.

A-31

a crime classified as a misdemeanor of the

second class or higher," it was reasonable to

apply this same requirement to the Mayor’s

Administrative Assistant.°

This court finds that the Defendants

had a legitimate purpose of promoting high

standards of professional conduct in the

position of Administrative Assistant to the

Mayor because of the sensitivity of the

position. This court also finds that the

reduction of Plaintiffs salary was rationally

related to that purpose because persons

who have committed serious crimes in the

6

Id. (citing City of Chester Home

Rule Charter, 323 Pa. Code § 11.2-202).

A-32

past have demonstrated a "greater potential

for abuse" of rights and _ privileges.

Schanuel, 546 F.Supp. at 525 (citing Dixon

v. McMullen, 527 F.Supp. 711, 722 (N.D.

Tex. 1981)); see, Upshaw v. McNamara, 435

F.2d 1188, 1190 (1st Cir. 1970) (person who

has committed felony lacked the qualities of

self control or honesty that the sensitive job

of policeman requires). Thus, having found

that Defendants’ reduction of Plaintiff's

salary was rationally related to a legitimate

purpose, this court will dismiss Count IV of

Plaintiff's Complaint.

Defendants argue next that Count V

A-33

and VI of Plaintiff's Complaint which allege

claims under 42 U.S.C. §§ 1985(3) and

1986, respectively, should be dismissed for

failure to state a claim for which relief can

be granted. Count V of Plaintiff's

Complaint alleges that "Defendants joined

together in a conspiracy against Plaintiff to

wrongfully and intentionally deny him a

position in city government, because of

Plaintiff's membership in the class of those

who have paid their debt to society for

prior criminal acts."" Count VI _ of

Plaintiff's Complaint alleges: "Knowing of

Pl.’s Complaint at 1 76.

cate i,

A-34

the conspiracy to perform the unlawful acts

described hereinabove, Defendants .. . did

nothing to prevent said acts, though having

the power to do so."

In order to state a cause of action

under 42 U.S.C. § 1985(3), Plaintiff must

allege four elements:

(1) a conspiracy; (2) for the

purpose of depriving, either directly or

indirectly, any person or class of

persons of the equal protection of the

laws, or of equal privileges and

immunities under the laws; and (3) an

act in furtherance of the conspiracy;

(4) whereby a person is either injured

in his person or property or deprived

of any right or privilege of a citizen of

the United States.

Pl.’s Complaint at 1 79.

ee

A-35

United Bd. of Carpenters & Joiners v.

Scott, 463 U.S. 825, 828-29 (1983) (citing

Griffin v. Breckenridge, 403 U.S. 88, 102-03

(1971)). The United States Supreme Court

has interpreted the language of the second

element requiring proof of intent to deprive

equal protection, or equal privileges and

immunities under the laws to mean "that

there must be some racial, or perhaps

Otherwise class-based, invidiously’

discriminatory animus' behind the

9 "we : 7 " ~

The word "invidious" as used in the

context of the term "invidious discrimination:

means arbitrary, irrational and not reasonably

related to a legitimate purpose. Black’s Law

Dictionary 826 (6th ed. 1990).

A-36

conspirators’ action." Griffin, 403 U.S. at

102.

It appears from Plaintiff's Complaint

that Plaintiff is unable, as a matter of law,

to state a cause of action under § 1985(3).

Plaintiff alleges that Defendants

discriminated against him because he was a

member of a class he defined as "those who

have paid their debt to society for prior

criminal acts." The Supreme Court has

never held that animus based on prior

felony convictions satisfied the class-based

invidious discriminatory practice necessary

to state a cause of action. This court finds

A-37

that discrimination allegedly based on

Plaintiff being a prior felon fails to satisfy

the requirement that there be some racial,

or perhaps otherwise class-based, invidiously

discriminatory animus behind the

conspirators’ action.

Additionally, Plaintiff has failed to

plead a conspiracy with sufficient factual

particularity. In order to support a claim

for conspiracy, plaintiff must allege facts

showing particularly what acts a defendant

performed to carry the conspiracy into

effect, how these acts fit into the

conspiracy, and how injury to the plaintiff

A-38

was foreseeable therefrom. Watson v.

Clark, 716 F. Supp. 1354, 1358 (D. Nev.

1989), aff'd, 909 F.2d 1490 (9th Cir. 1990).

Plaintiff has failed to allege facts indicating

who were members of the conspiracy, when

the parties agreed to the conspiracy, what

acts the Defendants performed to carry out

the conspiracy, and how these acts fit into

the conspiracy. Additionally, Plaintiff has

failed to allege precisely what laws of which

he was denied equal protection or equal

privileges or immunities. Count V of

Plaintiffs Complaint will be dismissed.

Because this court finds there is no basis

A-39

for Plaintiff's § 1985 claim, Plaintiff's § 1986

claim must likewise be dismissed. Brawer v.

Horowitz, 525 F.2d 830, 841 (3d cir. 1976).

Thus, Counts V and VI of Plaintiff's

Complaint will be dismissed.

Counts VII through XI of Plaintiff's

Complaint allege state law causes of action.

In the absence of _ extraordinary

circumstances, this court should refrain to

exercise jurisdiction over pendent state law

claims where federal claims have been

dismissed under Fed. R. Civ. P. 12(b)(6).

United Mine Workers v. Gibbs, 383 U:S.

715, 725-27 (1966); Cito _v. Bridgewater

A-40

Twnshp. Police Dept., 892 F.2d 23, 25-26

(3d Cir. 1989). There are no extraordinary

circumstances in this case justifying

retention of pendent jurisdiction over

Plaintiff's state law claims. Thus, counts

VII through XI of Plaintiff's Complaint will

be dismissed without prejudice to Plaintiff's

refiling these claims in an appropriate state

court action.

An appropriate Order follows.

A-41

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT HILL CIVIL ACTION

v.

CITY OF NO. 92-4357

CHESTER, et al.

ORDER

AND NOW, this 18th day of March,

1993, in consideration of Defendants’

Motion to Dismiss Plaintiff's Complaint

Pursuant to Fed. R. Civ. P. 12(b)(1) and

(6), Plaintiffs Answer thereto, and the

foregoing Memorandum, it is hereby

ORDERED that:

(1) Defendants’ Motion as to Counts

| through VI of Plaintiff's Complaint is

A-42

GRANTED;

(2) Counts VII through XI of

Plaintiffs Complaint are DISMISSED

without prejudice to Plaintiff's refiling these

claims in an appropriate state court action;

and

(3) This action is DISMISSED.

BY THE COURT:

JAMES McGIRR KELLY, J.

'

A-43

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT HILL CIVIL ACTION

Vv.

CITY OF : NO. 92-4357

CHESTER, et al. :

ORDER

AND NOW, this 10th day of June,

1993, in consideration of Plaintiff's Motion

to Alter or Amend the Judgment,

Defendants’ Answer thereto, and the

United States Supreme Court’s decision in

Leatherman v. Tarrant County Narcotics

Intelligence and Coordination Unit, 113 S.

Ct. 1160:(1993), and in consideration of this

court believing that it applied = an

A-44

inappropriate standard to Defendants’

Motion to Dismiss, it is hereby Ordered

that:

(1) Plaintiffs Motion to Alter or

Amend the Judgment is GRANTED:

(2) this court’s Memorandum and

Order dated March 18, 1993 is VACATED;

(3) judgment in favor of Defendant

is VACATED; and

(4) Plaintiff’s Complaint is

REINSTATED.

BY THE COURT:

JAMES McGIRR KELLY, J.

A-45

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT HILL : CIVIL ACTION

v.

CITY OF : NO. 92-4357

CHESTER, et al.

MEMORANDUM

J. M. KELLY, J. AUGUST 26, 1994

Presently before the Court is

Defendants’ Motion for Summary

Judgment. This Court has jurisdiction over

this matter pursuant to 28 U.S.C. §§ 1331

and 1343.

On March 18, 1993, the Court granted

Defendants Motion to Dismiss_ the

A-46

Complaint. However, on June 10, 1993, the

Court vacated this order, and reinstated the

Plaintiff's complaint in its entirety.

' The Court took such action in

response to the Plaintiffs Motion to Alter or

Amend eh Judgment, in light of the United

States Supreme Court’s decision in Leatherman

v. Tarrant County Narcotics Intelligence and

Coordination Unit, 113 S. Ct. 1160 (1993).

In his response to Defendants’ Motion for

Summary Judgment, Plaintiff claims that the

instant motion is "unsupported and

unreasonable", purportedly because this motion

consists of similar arguments as the Defendants’

Motion to Dismiss. However, this Court has the

ability to consider evidence outside of the

pleadings in the instant Motion for Summary

Judgment, applying a completely different

standard of law than that applied to the

pleadings in deciding the Motion to Dismiss. A

careful analysis of this motion is certainly

proper, as well as necessary under the law.

. os

A-47

FACTS

Plaintiff, Robert Hill, a former

Administrative Assistant to the Mayor of

the City of Chester, brought this action

against the City of Chester, Pennsylvania

("Chester"), the City Council of Chester

(the "City Council"), and Annette Burton

and Charles McLaughlin, both in their

official capacities as members of the City

Council and individually.

In 1992, Barbara Bohannan-Sheppard,

the Mayor of Chester (the "Mayor"),

appointed Plaintiff to be her Administrative

Assistant pursuant to the Mayor’s powers

A-48

under the Chester Home Rule Charter.

The Administrative Assistant’s duties

included: organizing the _ office

infrastructure, scheduling, answering

telephones, attending and taking notes at

meetings, supervising the word processing

work of the Mayor’s office, and following

up matters for the Mayor with other

governmental agencies. The Mayor was

allegedly aware at the time of Plaintiff's

appointment that Plaintiff had served a ten-

year prison sentence for homicide charges

brought when Plaintiff was fourteen years

old, and that Plaintiff had also served a

A-49

sixteen-month prison sentence resulting

from charges of engaging in intercourse

with a minor. While incarcerated, Plaintiff

earned a G.E.D. (the equivalent of a high

school diploma) and became proficient in

typing and other office skills. In the years

following Plaintiff's release, he successfully

pursued a career as a legal secretary/office

manager and earned respect in the legal

community in which he was employed.

Plaintiff also married, had three children,

and became a minister in the religion of

Islam.

After plaintiff's appointment, ministers

A-50

of various religions in Chester and other

individuals protested the appointment,

pressuring members of the City Council to

terminate Plaintiffs employment. On

March 26, 1992, Councilwoman Annette

Burton ("Councilwoman Burton") presented

a motion before the City Council to remove

Plaintiff from the City’s payroll. This

motion was seconded by Councilwoman

Charles McLaughlin ("Councilman

McLaughlin"). Councilwoman Burton

withdrew her motion after the Solicitor of

Chester advised her that the Administrative

Assistant to the Mayor served only at the

A-5]

pleasure of the Mayor, and therefore, that

the City Council did not have the authority

to terminate the Plaintiff. Subsequently,

Councilwoman Burton moved instead to set

Plaintiffs salary at zero, thereby effectively

eliminating Plaintiff’s continued

employment with Chester. Councilwoman

Burton’s motion was seconded by

Councilman McLaughlin, and the City

Council voted two to one in favor of

eliminating Plaintiff's salary. In addition, it

is alleged that Defendant’s withheld

Plaintiff's pay for work performed up to the

time Defendants introduced and passed the

A-52

motion which eliminated his salary.

Plaintiff subsequently resigned from his

position with the Mayor.

STANDARD OF LAW

Under Fed. R. Civ. P. 56(c), summary

judgment "shall be rendered forthwith if the

pleadings, depositions, answers to

interrogatories, and admissions on file,

together with the affidavits, if any, show

that there is no genuine issue as to any

material fact and that the moving party 1s

entitled to a judgment as a matter of law."

This court is required, in resolving a motion

for summary judgment pursuant to Rule 56,

A-53

to determine whether "the evidence is such

that a reasonable jury could return a verdict

for a nonmoving party." Anderson _v.

Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). In making this determination, the

evidence of the nonmoving party is to be

believed, and the district court must draw

all reasonable inferences in the

nonmovant’s_ favor. See id. at 255.

Furthermore, while the movant bears the

initial responsibility of informing the court

of the basis for its motion, and identifying

those portions of the record which

demonstrate the absence of a genuine issue

a

A-54

of material fact, Rule 56(c) requires the

entry of summary judgment "after adequate

time for discovery and upon motion, against

a party who fails to make a_ showing

sufficient to establish the existence of an

element essential to that party’s case, and

on which that party will bear the burden of

proof at trial." Celotex Corp. v. Catrett,

477 U.S. 317, 322-13 (1986).

COUNT I - FIRST AMENDMENT

Defendants argue that Plaintiff has

failed to provide adequate support for his

claim of violation of his right to freedom of

association under the First and Fourteenth

A-55

Amendments to the United States

Constitution. The United States Court of

Appeals for the Third Circuit addressed the

issue of a violation of a government

employee’s right to freedom of association

in Rode v. Dellarciprete, 845 F.2d 1195 (3d

Cir. 1988). The Third Circuit stated:

Government employ-ment does

not require an employee to forego the

exercise of the right to freedom of

association. Employees, however, who

claim that adverse employ-ment action

was taken against them based upon

the exercise of their associational

rights must show that they were

engaged in constitutionally protected

conduct, which conduct was a

"substantial" or "motivating factor" in

the government employer’s decision.

Two sometimes overlapping types

of protected association have been

A-56

recognized: associations founded on

intimate human relationships in which

freedom of association is protected as

a fundamental element of liberty, and

associations formed for the purpose of

engaging in activities protected by the

first amendment, such as the exercise

of speech, assembly, and religion.

Id. at 1204 (citations omitted).

In light of this standard, this Court

finds that Plaintiff has not sufficiently

supported the claim of violation of his

freedom of association. Plaintiff must

assert that he was engaged in

constitutionally protected conduct and that

such conduct was a "substantial" or

"motivating factor" in the decision to

terminate Plaintiff's employment. It

A-57

appears to this Court that the substantial or

motivating factor in Plaintiff's termination

was not Plaintiff's association with the

Mayor, but instead was Plaintiff's prior

criminal record and the public reaction

thereto. Hill claims that the action taken

against him was _ motivated by his

relationship with Bohannan-Sheppard, yet

he provides no support for such a claim. In

fact, Hill himself refers to such a claim as

"rumors".’

Even if this Court were to find that

Plaintiff's association with the Mayor was a

Dep. of Hill at 53.

A-58

substantial or motivating factor in Plaintiff's

termination, Plaintiff has _ failed to

demonstrate that he was engaged in

activities protected by the Constitution. In

order to fulfill this requirement, Plaintiff

must assert that his employment by the

Mayor was an_ association afforded

constitutional protection. Not all

associations are protected by the

Constitution. As indicated in Rode, two

types of associations have been recognized

as requiring constitutional protection:

associations founded on intimate human

relationships, and those formed for the

A-59

purpose of engaging in activities protected

by the First Amendment, such as exercise

of speech, assembly, and religion. Id.

There has been no demonstration that

Plaintiff's employment relationship with the

Mayor falls within the category of an

association founded on an intimate human

relationship.” Moreover, Plaintiff's

relationship with the Mayor does not

implicate the protections afforded by the

. Only relationships "distinguished by

such attributes as relative smallness, a high

degree of selectivity in decisions to begin and

maintain the affiliation, and seclusion from

others in critical aspects of the relationship" are

likely to implicate protection. Rode, 845 F.2d at

1204-05. Hill admits that his only relationship

with Bohannan-Sheppard was as employee and

friend. Dep. of Hill at 59-60.

A-60

First Amendment.’ In addition, the mere

fact that Plaintiff performed functions for a

political figure does not necessarily make

his job an association involving political

expression. Accordingly, Defendants’

Motion for Summary Judgment is granted

for Count I of Plaintiff's Complaint.

, As one court stated, "The court

seriously doubts that the first amendment right

to freedom of association is designed to protect

employer-employee relationships; if it did, every

firing of an at will employee, every breach or

tortious interference with an employment

contract, and every aspect of employer-employee

relationships would have constitutional

dimensions, and no court has adopted such a

proposition." Fort Wayne Patrolmen’s

Benevolent Assoc. v. City of Fort Wayne, 625

F.Supp. 722, 728 (N.D. Ind. 1986).

A-61

COUNT _II_ - DUE PROCESS LIBERTY

INTEREST

Defendants argue that Plaintiff has not

sufficiently supported Count II of his

Complaint, which alleges a violation of

Plaintiffs liberty rights as protected by the

Fourteenth Amendment.’ Plaintiff claims

that Defendants violated his liberty interest

by violating his "personal privacy and

reputation at the hands of persons clothed

with the authority of the state."®

? The Due Process clause of the

Fourteenth Amendment provides: "... nor shall

any State deprive any person of life, liberty, or

property, without due process of law; ... ."

U.S. Const. amend. XIV.

' Pl.’s Compl. at 1 46.

A-62

In Board of Regents of State College

v. Roth, 408 U.S. 564 (1972), the United

States Supreme Court determined that the

Fourteenth Amendment did not require a

hearing prior to the nonrenewal of a

nontenured state teacher’s contract unless

the plaintiff could demonstrate that the

nonrenewal deprived the plaintiff of a

liberty or property interest. The Roth

Court held that the nonrenewal of

Plaintiff's contract was not tantamount to a

deprivation of liberty, absent charges

against him implicating his good name,

reputation, honor, or integrity, and absent

A-63

any stigma or disability foreclosing other

employment. Id. at 573-74. The Court

further stated that "[i]t stretches the

concept too far to suggest that a person is

deprived of ‘liberty’ when he is simply not

rehired in one job but remains as free as

before to seek another." Id. at 575 (citing

Cafeteria Workers v. McElroy, 367 U.S.

886, 895-96 (1961).

Injury to one’s reputation alone does

not state a cause of action under the liberty

interest of the Due Process Clause. See

Paul v. Davis, 424 U.S. 693, 712 (1976). A

liberty interest is only implicated when a

A-64

public employee is dismissed based upon

charges or allegations which stigmatize the

employee, and the employer creates and

disseminates a defamatory impression about

the employee in connection with the

termination. Id. at 709-10.

In this case, Plaintiff claims that the

City Council voted to reduce his salary to

zero because of his prior criminal record

and his association with the Mayor. He has

not set forth any evidence that Defendants

were responsible for his criminal record

being publicized in the media. In addition,

Plaintiff has not demonstrated that

A-65

Defendants have stigmatized his reputation

in a manner which has harmed his ability to

obtain future employment. In fact, soon

after this incident, Plaintiff obtained

employment similar to that which he

maintained prior to employment with the

City of Chester.’ Thus, this Court finds

that Plaintiff's liberty claim does not survive

summary judgment. Accordingly, summary

judgment is granted for the Defendants for

Count II of Plaintiff's Complaint.°

: Dep. of Hill at 5-9.

8

In addition, there has been no

evidence set forth to prove that Hill made a

timely request for a hearing to clear his name,

and that such request was denied. Dep. of Hill

at 74-75. A request for such a hearing is a

A-66

COUNT III - DUE PROCESS

PROPERTY INTEREST

Plaintiff also claims that his due

process rights under the Fourteenth

Amendment were violated because he had

a property interest in his position as

Administrative Assistant to the Mayor. In

Board of Regents of State Colleges v. Roth,

the Supreme Court defined a property

interest protected by the Fourteenth

Amendment as follows:

To have a property interest in a

prerequisite to making a claim under the liberty

interest of the Due Process Clause. See

Freeman v. McKellar, 795 F. Supp. 733, 739

(E.D. Pa. 1993).

A-67

benefit, a person clearly must have

more than an abstract need or desire

for it. He must have more than a

unilateral expectation of it. He must,

instead, have a legitimate claim of

entitlement to it.

* * *

Property interests, of course, are

not created by the Constitution.

Rather, they are created and their

dimensions are defined by existing

rules or understandings that stem from

an independent source such as state

law -- rules or understandings that

secure certain benefits and that

support claims of entitlement to those

benefits.

Roth, 408 U.S. at 577.2. Thus, whether

? In Perry v. Sinderman, 408 U.S. 593,

601 (1972), the United States Supreme Court

held that a "person’s interest in a benefit is a

‘property’ interest for due process purposes if

there are ... rules or mutually explicit

understandings that support his claim of

entitlement to the benefit and that he may

invoke at a hearing."

A-68

Plaintiff had a property interest recognized

by the Fourteenth Amendment is

determined by reference to state law. Id.:

see also Bishop v. Wood, 426 U.S. 341, 344

(1976). In Pennsylvania, absent an express

Statutory or contractual right granting

tenure in public employment, a_ public

employee remains "an employee at will who

could be discharged at any time." Hoffman

v. Montour County, 50 Pa. Commw. 101,

102, 411 A.2d 1319, 1320 (1980). In

addition, Pennsylvania law provides that

public employees have no_ contractual

entitlement to be dismissed only for cause

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unless the legislature has expressly provided

tenure for a given class of employees.

Rosenthal v. Rizzo, 555 F.2d 390, 392 (3d

Cir.) (citing Mahoney v. Philadelphia Hous.

Auth., 13 Pa. Commw. 243. 320 A.2d 459

(1974), cert. denied, 419 U.S. 1122 (1975));

cert. denied, 434 U.S. 892 (1977).

In the case at bar, Plaintiff served in

his position as Administrative Assistant at

the "pleasure of the Mayor" and his salary

was to be set by the City Council.'°

“ Section 305 of the City of Chester

Home Rule Charter provides:

The Mayor may appoint an assistant

to assist in the administration of the

functions of the Mayor. The

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Plaintiff had no property interest in

continued employment under the Chester

Home Rule Charter because, serving at the

"pleasure of the Mayor," Plaintiff had no

legitimate claim of entitlement to continued

employment with the Mayor. In addition,

the City Council acted within its rights

under the Chester Home Charter in

reducing Plaintiffs salary. To the extent

Administrative Assistant will serve at

the pleasure of the Mayor, shall be

qualified by education and/or

experience to carry out the duties of

the office, and shall be compensated

by a salary which shall be set by

Council in the Administrative Code

or other ordinance.

323 Pa. Code § 11.3-305 (1980).

=

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that the City Council reduced Plaintiff's

salary to an unreasonable level, Plaintiff can

pursue state law claims for relief. The City

Council’s reduction of Plaintiff's salary does

not ipso facto grant Plaintiff a property

right to continued employment protected by

the Constitution. On the contrary, Plaintiff

can pursue whatever remedies are available

for unreasonable reduction in Plaintiff's

salary by the City Council. This Court finds

that Plaintiff did not have a property

interest in his employment as an

Administrative Assistant with the City of

Chester. Defendants’ Motion for Summary

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Judgment is granted for Count III of

Plaintiff's Complaint.

COUNT IV - EQUAL PROTECTION

In Count IV of the Complaint,

Plaintiff alleges a violation of his equal

protection rights under the Fourteenth

Amendment. Plaintiff's Complaint alleges

that he was a member of a class of "persons

convicted of felonies who have paid their

debt to society and are now again members

of the community," and that Defendants

intentionally discriminated against Plaintit

because of his membership in that class.

The first step in evaluating an equal

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protection challenge to a certain state

action is to identify the level of scrutiny that

must be applied. "Unless a_ statute

provokes ’strict judicial scrutiny’ because it

interferes with a ‘fundamental right’ or

discriminates against a ’suspect class,’ it will

ordinarily survive an equal protection attack

so long as the challenged classification is

rationally related to a_ legitimate

government purpose." Kadrmas _ Vv.

Dickinson Public Schools, 487 U.S. 450,

457-58 (1988) (citing San Antonio Indep.

Sch. Dist. v. Rodriguez, 411 U.S. 1, 16-17

(1973)).

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Fhis Court finds that Plaintiff’s

employment with the Mayor did not

implicate a fundamental right guaranteed by

the Constitution, and Plaintiff's status as a

convicted felon does not place him in a

suspect class.’ Thus, the rational basis

test is the applicable level of scrutiny. See

Schanuel v. Anderson, 546 F.Supp. 519, 524

(S.D. Ill. 1982) (rational basis test applied

to challenge of state statute prohibiting

"3 See Talley v. Lane, 13 F.3d 1031,

1034 (7th Cir. 1994); Hill v. Gill, 703 F.Supp.

1034, 1037 (D.R.I. 1989) ("In this case, it is

clear that the class in question (i.e. persons

convicted of felonies) is not a protected one. It

is equally clear that public employment is not a

fundamental right. Therefore, the applicable

standard is the rational basis test.") (citations

omitted), aff'd, 893 F.2d 1325 (1st Cir. 1989).

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employment in certain jobs of convicted

felon for period of ten years following

conviction), aff'd, 708 F.2d 316 (7th Cir.

1983); Carbonaro v. Reeher, 392 F.Supp.

753, 757 (E.D. Pa. 1975) (rational basis test

applied to challenge of state statute that

required former felons to prove satisfactory

character to receive financial assistance for

postsecondary education); Butts v. Nichols,

381 F.Supp. 573, 579 (S.D. Iowa 1974)

(rational basis test applied to challenge of

State statute prohibiting employment of

convicted felons in civil service positions).

The rational basis test is defined as

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"whether the challenged state action

rationally furthers a legitimate state purpose

or interest." Rodriguez, 411 U.S. at 55.

Thus, to withstand review, Defendants need

only demonstrate that their actions in

reducing Plaintiff's salary were rationally

related to a legitimate state purpose.

Defendants argue that the reasoning behind

the reduction of Plaintiff's salary was that

the Defendants did not want a convicted

felon and highly controversial figure to be

in the sensitive position of Administrative

Assistant to the Mayor. In attempting to

raise the business reputation of the City of

aii a

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Chester to outsiders, Defendants felt that

this issue may have hurt the City in its

business dealings.’

This Court holds that the Defendants

had a legitimate purpose of promoting high

standards of professional conduct in the

os During a public meeting on March

26, 1992, Councilwoman Burton stated:

Over the past few months there has been

one issue that has been allowed to linger

much too long. In order for us to sell the

City of Chester to outside business and

industry, we must not allow a single issue

to cloud the decisions that are made to

stop us from becoming that great city that

I know we can be. Robert Hill has

become a single issue. I strongly support

rehabilitation and employment of ex-

offenders, but, that does not mean that

one is entitled to any position that they

want.

Dets.’ Mot. for Summ. J., Ex. J.

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position of Administrative Assistant to the

Mayor because of the sensitivity and

importance of the position. The Court

finds that public protests to _ the

appointment of Hill and the Council’s

concern regarding the protests’ effect on

the functioning of Chester city government

motivated the Council’s action.” In

a When the media began to report

Hill’s prior convictions, the Defendants received

telephone calls and requests for interviews from

news organizations across the country, including

"A Current Affair". Defendants received

between approximately twenty and fifty phone

calls every day from the media for a period of

between three or four weeks. Dep. of

McLaughlin at 21-27. In addition, each local

television news program and "A Current Affair"

were present at the City Council meeting of

March 26, 1992. Pl.’s Resp. to Mot. for Sum. J.,

Ex. D at 4.

Cn

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addition, persons who have committed

serious crimes in the past have

demonstrated a "greater potential for abuse"

of rights and privileges. Schanuel, 546 F.

Supp. at 525 (citing Dixon v. McMullen,

527 F. Supp. 711, 722 (N.D. Tex. 1981));

see also Upshaw v. McNamara, 435 F.2d

1188, 1190 (1st Cir. 1970) (person who has

committed felony may lack the qualities of

self control or honesty that the sensitive job

of policeman requires)."

14

There is significant caselaw

addressing the equal protection rights of ex-

convicts. In rare instances, violations of

employees’ equal protection rights have been

found in cases where employers have fired

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employees due to their criminal record. See

Furst v. New York City Transit Auth., 631

F.Supp. 1108 (N.D. Ca. 1980). However, in

such cases, the employers’ alleged reasons

supporting the firings were overly general and

not rationally related to any legitimate state

interest.

For example, in Kindem, municipal janitor

was discharged pursuant to a specific provision

of the City Charter prohibiting any municipal

employment of ex-felons. The court held that

such a general policy violated the Equal

Protection Clause. It stated:

The City unquestionably has a legitimate

interest in hiring qualified, competent and

trustworthy employees, and in employing

persons who will inspire the public’s

confidence. But it has not been

demonstrated that the sole fact of a single

prior felony conviction renders an

individual unfit for public employment,

regardless of the type of crime committed

or the type of job sought. This is not to

say that a prior felony conviction can

never be a factor in public employment

decisions. It is reasonable to assume, for

example, that a prior conviction might be

highly relevant or properly determinative

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Thus, having found that Defendants’

reduction of Plaintiff's salary was rationally

related to legitimate purposes, this Court

will grant Defendants’ Motion for Summary

with respect to hiring decisions involving

certain sensitive jobs.

It may also be reasonable to assume

that convictions for certain crimes may

indicate that an individual is unfit for any

future municipal employment. But the

city’s policy is not tailored along any lines

to conform to what might be considered

legitimate government interests.

502 F.Supp. at 1112 (citations omitted). The

instant case does not involve such a general

policy. Specific reasons were set forth

supporting the decision to dismiss this specific

employee from a specific paid position. In this

case, the reasoning behind the action is rational,

and satisfies the applicable constitutional

Standard. See, e.g., Darks v. City of Cincinnati,

745 F.2d 1040 (6th Cir. 1984); Schanuel v.

Anderson, 708 F.2d 316 (7th Cir. 1983); Dixon

v. McMullen, 527 F.Supp. 711 (N.D. Tex. 1981).

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Judgment for Count IV of Plaintiff's

Complaint.

COUNTS V, VI - 42 US.C. §§ 1985(3), 1986

Defendants argue _ that summary

judgment should be granted in their favor

for Counts V and VI of Plaintiff's

Complaint, which allege claims under 42

U.S.C. §§ 1985(3) and 1986, respectively.

Count V of Plaintiff's Complaint alleges

that "Defendants joined together in a

conspiracy against Plaintiff to wrongfully

and intentionally deny him a position in city

government, because of Plaintiff’s

membership in the class of those who have

i

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paid their debt to society for prior criminal

acts.""" Count VI of Plaintiffs Complaint

alleges, "Knowing of the conspiracy to

perform the unlawful acts described

hereinabove, Defendants . . . did nothing to

prevent said acts, though having the power

to do so.""®

In order to state a cause of action

under 42 U.S.C. § 1985(3), Plaintiff must

allege four elements:

(1) a conspiracy; (2) for the purpose

of depriving, either directly or

indirectly, any person or class of

persons of the equal protection of the

¥ Pl.’s Compl. at 9 76.

ig Pl.’s Compl. at 9 79.

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laws, or of equal privileges and

immunities under the laws; and (3) an

act in furtherance of the conspiracy;

(4) whereby a person is either injured

in his person or property or deprived

of any right or privilege of a citizen of

the United States.

United Bd. of Carpenters & Joiners, Local

610 v. Scott, 463 U.S. 825, 828-29 (1983)

(citing Griffin v. Breckenridge, 403 U.S. 88,

102-03 (1971)). Section 1985 (3) provides

a cause of action where it is shown that a

conspiracy existed to deprive a plaintiff of

her constitutional rights.’’ Because no

sg In addition, § 1985 only provides for

liability when a conspiracy is based on racial or

otherwise class-based discriminatory motives.

Carchman v. Korman Corp., 594 F.2d 354, 355

(3d Cir.) (citing Griffin, 403 U.S. at 102), cert.

denied, 444 U.S. 898 (1979).

Oe

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such deprivation of constitutional rights

occurred in this case, summary judgment is

granted to all Defendants for Count IV.

This Court will also grant the

Plaintiff alleges that Defendants

discriminated against him because he was a

member of the class he defined as "those who

have paid their debt to society for prior criminal

acts." The Supreme Court has never held that

animus based on prior felony convictions

satisfies the class-based invidious discriminatory

practice necessary to state a cause of action.

Moreover, it has been held in this district that

"[section] 1985(3) may be invoked only as a

remedy for discrimination which is based upon

the plaintiffs immutable characteristics, such as

race or gender." Rourke v. United States, 744

F.Supp. 100, 105 (E.D. Pa. 1988) (rejecting

‘former arrestees as class member § 1985(3)),

aff'd, 909 F.2d 1477 (3d Cir. 1990). This Court

finds that discrimination allegedly based on

Plaintiffs status as a prior felon fails to Satisfy

the requirement that there be some racial, or

perhaps otherwise class-based, invidiously

discriminatory animus behind the alleged

conspirators’ action.

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Defendants’ motion for Count V _ of

Plaintiffs Complaint. Because this court

finds there is no basis for Plaintiff's § 1985

claim, summary judgment will likewise be

granted for Count VI. See Brawer_v.

Horowitz, 535 F.2d 830, 841 (3d Cir. 1976).

COUNT VII-XI_ - STATE LAW CAUSES OF

ACTION

Counts VII through XI of Plaintiff's

Complaint allege state law causes of action.

This Court may refrain from exercising

jurisdiction over pendent state law claims

where all federal claims have been

dismissed. 28 U.S.C. § 1367(c)(3) (Supp.

1993). There are no_ extraordinary

A-87

circumstances in this case justifying

retention of pendent jurisdiction over

Plaintiff's state law claims. Thus, Counts

VII through XI of Plaintiff's Complaint will

be dismissed without prejudice to Plaintiff

refiling these claims in an appropriate state

court action.

An appropriate order follows.

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT HILL : CIVIL ACTION

v. |

CITY OF | NO. 92-4357

CHESTER, et al. :

GRDER

AND NOW, this 26th day of August,

1994, in consideration of Defendants’

Motion for Summary Judgment, Plaintiff's

Response, Defendants’ Supplemental

Memorandum, and Plaintiff's Supplemental

Response, and for the reasons stated in the

foregoing memorandum, it is_ hereby

ORDERED that:

1. Defendants’ Motion for Summary

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Judgment is GRANTED for Counts I

through VI.

2. Counts VII through XI of

Plaintiffs Complaint are DISMISSED

without prejudice to Plaintiff refiling these

claims in an appropriate state court action.

3. Judgment is entered in favor of

Defendants City of Chester, City Council of

Chester, Annette Burton and Charles

McLaughlin and against Plaintiff Robert

Hill for Counts I through VI.

BY THE COURT:

JAMES McGIRR KELLY,

tS

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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 94-1955

ROBERT HILL,

Appellant

v.

CITY OF CHESTER; THE CITY COUNCIL OF THE

CITY OF CHESTER; ANNETTE BURTON, Individually

and in her official capacity as Councilwoman of the City

of Chester; CHARLES McLAUGHLIN, Individually and

in his official capacity as Councilman of the City of

Chester

Appeal from the Order of the United States District

Court for the Eastern District of Pennsylvania

(D.C. Civ. No. 92-4357)

District Judge: Honorable James McGirr Kelly

A-9]

ARGUED May 5, 1995

Before: MANSMANN, SCIRICA and McKEE,

Circuit Judges

JUDGMENT ORDER

After consideration of al] the

contentions raised by the appellant, to wit,

that:

1. the district court erred in making

the credibility determination that

appellant’s affiliation with Chester Mayor,

Barbara Bohannan-Sheppard, was not

sufficient to implicate First Amendment

rights in appellant’s discharge;

2. _ the district court erred in finding

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that persons convicted of crimes who served

their sentences for such crimes do not

constitute a "suspect class" for equal

protection purposes;

3. the district court erred in

granting the appellees’ Motion for Summary

Judgment as to appellant’s equal protection

claims, based upon an improper credibility

determination that appellant’s secretarial

duties constituted a "sensitive" position in

Chester government, thereby supplying a

"rational basis" for appellees’ discharge of

appellant;

4. the district court erred in finding

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that appellees did not violate appellant’s

right of due process; and

5. the district court erred in holding

that appellant was not entitled to the

protections of the Enforcement Act of

1871, 42 U.S.C. §1985(3) and the Civil

Rights Act of 1871, as amended, 42 U.S.C.

$1986, it is,

ADJUDGED AND ORDERED that

the judgment of the district court entered

August 26, 1994, be and is hereby affirmed.

Costs taxed against the appellant.

BY THE COURT,

Circuit Judge