Section 1031(a) of the Cal.Gov't Code Ann. (West 1980) requires
"public officers or employees declared by law to be peace officers"
to be United States citizens; § 830.5 of the Cal.Penal Code Ann.
(West Supp.1981) declares probation officers and deputy probation
officers to be "peace officers." Appellees, lawfully admitted
permanent resident aliens, after unsuccessfully applying for
positions as Deputy Probation Officers in Los Angeles County, filed
suit in Federal District Court challenging the statutory
citizenship requirement under,
inter alia, the Equal
Protection Clause of the Fourteenth Amendment and seeking
declaratory, injunctive, and other relief. The District Court held
the requirement unconstitutional both on its face and as applied to
appellees.
Held: The statutory citizenship requirement is valid.
Pp.
454 U. S.
436-447.
(a) While a restriction on lawfully resident aliens that
primarily affects economic interests is subject to strict judicial
scrutiny, such scrutiny is out of place when the restriction
primarily serves a political function. A claim that a particular
restriction on legally resident aliens serves political, and not
economic, goals is to be evaluated in a two-step process.
Sugarman v. Dougall, 413 U. S. 634.
First, the specificity of the classification will be examined: a
classification that is substantially overinclusive or
underinclusive tends to undercut the governmental claim that the
classification serves legitimate political ends. Second, even if
the classification is sufficiently tailored, it may be applied in
the particular case only to "persons holding state elective or
important nonelective executive, legislative, and judicial
positions."
Sugarman v. Dougall, supra, at
413 U. S. 647.
Pp.
454 U. S.
436-441.
(b) The statutes in question are an attempt to limit the
exercise of the sovereign's coercive police powers over the
community to citizens. They are sufficiently tailored in light of
that aim to withstand a facial challenge when reviewed under the
appropriate equal protection standard for such an exercise of
sovereign power. Pp.
454 U. S.
441-444.
Page 454 U. S. 433
(c) Probation officers sufficiently partake of the sovereign's
power to exercise coercive force over the individual that they may
be required to be citizens. Although the range of individuals over
whom such officers exercise supervisory authority is limited, the
officers' power with respect to those individuals is broad. A
citizenship requirement is an appropriate limitation on those who
exercise and, therefore, symbolize this power of the political
community over those who fall within its jurisdiction. Pp.
454 U. S.
441-447.
490 F.
Supp. 984, reversed and remanded.
WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BLACKMUN,
J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and
STEVENS, JJ., joined,
post, p.
454 U. S.
447.
JUSTICE WHITE delivered the opinion of the Court.
In this case, we once again consider a citizenship requirement
imposed by a State on those seeking to fill certain governmental
offices. California Gov't Code Ann. § 1031(a) (West 1980) requires
"public officers or employees declared by law to be peace officers"
to be citizens of the United States. California Penal Code Ann. §
830.5 (West Supp.1981) provides that probation officers and deputy
probation officers are "peace officers." A three-judge District
Court of the Central District of California held the California
requirement unconstitutional both on its face and as applied to the
appellees, who sought positions as Deputy Probation Officers.
490 F.
Supp. 984.
Page 454 U. S. 434
I
Appellees were, at the time the complaint was filed, lawfully
admitted permanent resident aliens living in Los Angeles County,
Cal. [
Footnote 1] Each applied
unsuccessfully for positions as Deputy Probation Officers with the
Los Angeles County Probation Department. [
Footnote 2] With respect to two of the three appellees,
the parties stipulated that the failure to obtain the positions
sought was the result of the statutory citizenship requirement.
[
Footnote 3]
Appellees filed a complaint in the United States District Court
for the Central District of California challenging the
constitutionality of the citizenship requirement under the Equal
Protection Clause of the Fourteenth Amendment and 42 U.S.C. §§ 1981
and 1983. Named as defendants were certain individual county
officials, in their official capacity, and the County of Los
Angeles. [
Footnote 4]
Page 454 U. S. 435
Appellees alleged unconstitutional discrimination against
aliens, impermissible infringement upon their constitutional right
to travel, and unconstitutional interference with Congress' plenary
power to regulate aliens. They sought declaratory and injunctive
relief, as well as attorney's fees and damages for two of the
plaintiffs. A three-judge court was properly convened. 28 U.S.C. §§
2281 (1970 ed.), 2284. [
Footnote
5]
In February, 1977, the District Court concluded that the
statutory citizenship requirement was unconstitutional both on its
face and as applied.
Chavez-Salido v.
Cabell, 427 F.
Supp. 158. That decision rested entirely on appellees'
arguments under the Equal Protection Clause; it did not reach the
right to travel and federal preemption claims. This Court vacated
and remanded that judgment for further consideration in light of
Foley v. Connelie, 435 U. S. 291
(1978), which upheld a New York statute requiring state troopers to
be United States citizens.
County of Los Angeles v.
Chavez-Salido, 436 U.S. 901 (1978). On remand, the District
Court reconsidered its previous position in light of both
Foley, supra, and
Ambach v. Norwick, 441 U. S.
68 (1979),
Page 454 U. S. 436
which held that a State may refuse to employ as elementary and
secondary school teachers aliens who are eligible for United States
citizenship but fail to seek naturalization. With Judge Curtis
dissenting, the court found its prior views still valid and
convincing. It therefore came to the identical conclusion that the
California statutory scheme was constitutionally invalid, both
facially and as applied.
We noted probable jurisdiction, 450 U.S. 978 (1981), and now
reverse.
II
Over the years, this Court has many times considered state
classifications dealing with aliens.
See, e.g., Ambach v.
Norwick, supra; Nyquist v. Mauclet, 432 U. S.
1 (1977);
Foley v. Connelie, supra; Examining Board
v. Flores de Otero, 426 U. S. 572
(1976);
In re Griffiths, 413 U. S. 717
(1973);
Sugarman v. Dougall, 413 U.
S. 634 (1973);
Graham v. Richardson,
403 U. S. 365
(1971);
Takahashi v. Fish & Game Comm'n, 334 U.
S. 410 (1948);
Crane v. New York, 239 U.
S. 195 (1915);
Heim v. McCall, 239 U.
S. 175 (1915);
Truax v. Raich, 239 U. S.
33 (1915);
Yick Wo v. Hopkins, 118 U.
S. 356 (1886). As we have noted before, those cases
"have not formed an unwavering line over the years."
Ambach v.
Norwick, supra, at
441 U. S. 72.
But to say that the decisions do not fall into a neat pattern is
not to say that they fall into no pattern. In fact, they illustrate
a not unusual characteristic of legal development: broad principles
are articulated, narrowed when applied to new contexts, and finally
replaced when the distinctions they rely upon are no longer
tenable.
In
Yick Wo v. Hopkins, supra, the Court held both that
resident aliens fall within the protection of the Equal Protection
Clause of the Fourteenth Amendment and that the State could not
deny to aliens the right to carry on a "harmless and useful
occupation" available to citizens. Although
Yick Wo
proclaimed that hostility toward aliens was not a permissible
Page 454 U. S. 437
ground for a discriminatory classification, it dealt only with a
situation in which government had actively intervened in the sphere
of private employment. In a series of later cases, it became clear
that
Yick Wo did not mean that the State had to be
strictly neutral as between aliens and citizens: the Court
continued to uphold the right of the State to withhold from aliens
public benefits and public resources.
Terrace v. Thompson,
263 U. S. 197
(1923) (ownership of land);
Heim v. McCall, supra,
(employment on public works projects);
Patsone v.
Pennsylvania, 232 U. S. 138
(1914) (taking of wild game).
This distinction between government distribution of public
resources and intervention in the private market was clearly
established as the principle by which state regulations of aliens
were to be evaluated in
Truax v. Raich, supra, which
struck down a state statute requiring all employers of more than
five workers to employ "not less than eighty (80) per cent
qualified electors or native born citizens of the United
States:"
"The discrimination defined by the act does not pertain to the
regulation or distribution of the public domain, or of the common
property or resources of the people of the State, the enjoyment of
which may be limited to its citizens as against both aliens and
citizens of other States."
Id. at
238 U. S.
39-40.
This public/private distinction, the "special public interest"
doctrine,
see Graham v. Richardson, supra, at
403 U. S. 372,
403 U. S. 374;
Sugarman v. Dougall, supra, at
413 U. S. 643,
413 U. S. 644,
was challenged in
Takahashi v. Fish & Game Comm'n,
supra, which held that California could not bar lawfully
resident aliens from obtaining commercial fishing licenses:
"To whatever extent the fish in the three-mile belt off
California may be 'capable of ownership' by California, we think
that 'ownership' is inadequate to justify California in excluding
any or all aliens who are lawful residents
Page 454 U. S. 438
of the State from making a living by fishing in the ocean off
its shores while permitting all others to do so."
Id. at
334 U. S. 421.
As the principle governing analysis of state classifications of
aliens, who are lawful residents, the distinction was further
eroded in
Graham v. Richardson, supra, which read
Takahashi as "cast[ing] doubt on the continuing validity
of the special public interest doctrine in all contexts," 403 U.S.
at
403 U. S. 374,
and held that a State could not distinguish between lawfully
resident aliens and citizens in the distribution of welfare
benefits. Returning to
Yick Wo's holding that lawfully
present aliens fall within the protection of the Equal Protection
Clause, and citing the more recent theory of a two-tiered equal
protection scrutiny,
Graham implied that there would be
very few -- if any -- areas in which a State could legitimately
distinguish between its citizens and lawfully resident aliens:
"Aliens as a class are a prime example of a 'discrete and
insular' minority . . . for whom . . . heightened judicial
solicitude is appropriate. Accordingly, it was said in
Takahashi, 334 U.S. at
334 U. S.
420, that 'the power of a state to apply its laws
exclusively to its alien inhabitants as a class is confined within
narrow limits.'"
403 U.S. at
403 U. S.
372.
The cases through
Graham dealt for the most part with
attempts by the States to retain certain economic benefits
exclusively for citizens. Since
Graham, the Court has
confronted claims distinguishing between the economic and sovereign
functions of government. This distinction has been supported by the
argument that, although citizenship is not a relevant ground for
the distribution of economic benefits, it is a relevant ground for
determining membership in the political community.
"We recognize a State's interest in establishing its own form of
government, and in limiting participation in that government to
those who are within 'the basic conception of a political
community.'"
Sugarman v.
Page 454 U. S. 439
Dougall, 413 U.S. at
413 U. S. 642.
While not retreating from the position that restrictions on
lawfully resident aliens that primarily affect economic interests
are subject to heightened judicial scrutiny,
ibid.; In re
Griffiths, supra; Examining Board v. Flores de Otero, supra,
we have concluded that strict scrutiny is out of place when the
restriction primarily serves a political function:
"[O]ur scrutiny will not be so demanding where we deal with
matters resting firmly within a State's constitutional prerogatives
[and] constitutional responsibility for the establishment and
operation of its own government, as well as the qualifications of
an appropriately designated class of public officeholders."
Sugarman v. Dougall, supra, at
413 U. S. 648.
We have thus
"not abandoned the general principle that some state functions
are so bound up with the operation of the State as a governmental
entity as to permit the exclusion from those functions of all
persons who have not become part of the process of
self-government."
Ambach v. Norwick, 441 U.S. at
441 U. S. 774.
And in those areas the State's exclusion of aliens need not
"clear the high hurdle of 'strict scrutiny,' because [that]
would 'obliterate all the distinctions between citizens and aliens,
and thus depreciate the historic value of citizenship.'"
Foley v. Connelie, 435 U.S. at
435 U. S. 295
(citation omitted). [
Footnote
6]
The exclusion of aliens from basic governmental processes is not
a deficiency in the democratic system, but a necessary consequence
of the community's process of political self-definition.
Self-government, whether direct or through representatives, begins
by defining the scope of the community of the governed, and thus of
the governors as well: aliens are, by
Page 454 U. S. 440
definition, those outside of this community. Judicial incursions
in this area may interfere with those aspects of democratic
self-government that are most essential to it. This distinction
between the economic and political functions of government has,
therefore, replaced the old public/private distinction. Although
this distinction rests on firmer foundations than the old
public/private distinction, it may be difficult to apply in
particular cases.
Sugarman advised that a claim that a particular
restriction on legally resident aliens serves political, and not
economic, goals is to be evaluated in a two-step process. First,
the specificity of the classification will be examined: a
classification that is substantially overinclusive or
underinclusive tends to undercut the governmental claim that the
classification serves legitimate political ends. The classification
in
Sugarman itself -- all members of the competitive civil
service -- could not support the claim that it was an element in
"the State's broad power to define its political community," 413
U.S. at
413 U. S. 643,
because it indiscriminately swept in menial occupations while
leaving out some of the State's most important political functions.
Second, even if the classification is sufficiently tailored, it may
be applied in the particular case only to "persons holding state
elective or important nonelective executive, legislative, and
judicial positions," those officers who "participate directly in
the formulation, execution, or review of broad public policy," and
hence "perform functions that go to the heart of representative
government."
Id. at
413 U. S. 647.
[
Footnote 7] We must therefore
inquire whether the
"position
Page 454 U. S. 441
in question . . . involves discretionary decisionmaking, or
execution of policy, which substantially affect members of the
political community."
Foley v. Connelie, supra, at
435 U. S.
296.
The restriction at issue in this case passes both of the
Sugarman tests.
III
Appellees argue, and the District Court agreed, that Cal.Gov't
Code Ann. § 1031(a) (West 1980), which requires all state "peace
officers" to be citizens, is unconstitutionally overinclusive:
"Section 1031(a) is void as a law requiring citizenship which
sweeps too broadly.'" 490 F. Supp. at 986. [Footnote 8] The District Court failed to
articulate any standard in reaching this conclusion. Rather, it
relied wholly on its belief that,
Page 454 U. S.
442
of the more than 70 positions included within the statutory
classification of "peace officer," some undefined number of them
"cannot be considered members of the political community no matter
how liberally that category is viewed." Id. at 987. The
District Court's entire argument on this point consisted of just
one sentence:
"There appears to be no justification whatever for excluding
aliens, even those who have applied for citizenship, from holding
public employment as cemetery sextons, furniture and bedding
inspectors, livestock identification inspectors, and toll service
employees."
Id. at 986. In believing this sufficient, the District
Court applied a standard of review far stricter than that approved
in
Sugarman and later cases.
We need not hold that the District Court was wrong in concluding
that citizenship may not be required of toll-service employees,
cemetery sextons, and inspectors to hold that the District Court
was wrong in striking down the statute on its face. [
Footnote 9] The District Court assumed that,
if the statute was overinclusive at all, it could not stand. This
is not the proper standard. Rather, the inquiry is whether the
restriction reaches so far and is so broad and haphazard as to
belie the State's claim that it is only attempting to ensure that
an important function of government be in the hands of those having
the "fundamental legal bond of citizenship."
Ambach v.
Norwick, 441 U.S. at
441 U. S. 75.
Under this standard, the classifications used need not be precise;
there need only be a substantial fit. Our examination of the
California scheme convinces us that it is sufficiently tailored to
withstand a facial challenge.
The general requirements, including citizenship, for all
California peace officers are found in Cal.Gov't Code Ann.
Page 454 U. S. 443
§1031 (West 1980). That section, however, does not designate any
particular official as a peace officer; rather, Cal. Penal Code
Ann. §830 (West Supp. 1981) lists the specific occupations that
fall within the general category of "peace officer." Even a casual
reading of the Penal Code makes clear that the unifying character
of all categories of peace officers is their law enforcement
function. Specific categories are defined by either their
geographical jurisdiction or the specific substantive laws they
have the responsibility to enforce. Thus, not surprisingly, the
first categories listed include police officers at the county,
city, and district levels. §830.1. This is followed by various
categories of police power authorized by the State,
e.g.,
highway patrol officers, the state police, and members of the
California National Guard when ordered into active service. §830.2.
After this, the statute includes a long list of particular officers
with responsibility for enforcement of different substantive areas
of the law,
e.g., individuals charged with enforcement of
the alcoholic beverage laws, the food and drug laws, fire laws, and
the horse racing laws. § 830.3. Finally, there are several catchall
provisions that include some officers with narrow geographic
responsibilities --
e.g., park rangers, San Francisco Bay
Area Rapid Transit District police, harbor police, community
college police, security officers of municipal utility districts,
and security officers employed in government buildings -- and some
with narrow "clientele" --
e.g., welfare fraud or child
support investigators, correctional officers, parole and probation
officers. §§830.31-830.6.
Although some of these categories may have only a tenuous
connection to traditional police functions of law enforcement, the
questionable classifications are comparatively few in number.
[
Footnote 10] The general
law enforcement character of all
Page 454 U. S. 444
California "peace officers" is underscored by the fact that all
have the power to make arrests, § 836, and all receive a course of
training in the exercise of their respective arrest powers and in
the use of firearms. § 832.
Foley made clear that a State
may limit the exercise of the sovereign's coercive police powers
over the members of the community to citizens. The California
statutes at issue here are an attempt to do just that. They are
sufficiently tailored in light of that aim to pass the lower level
of scrutiny we articulated as the appropriate equal protection
standard for such an exercise of sovereign power in
Sugarman. [
Footnote
11]
V
The District Court also held that the citizenship requirement
was invalid as applied to the positions at issue here -- deputy
probation officers. In reaching this conclusion, it focused too
narrowly on a comparison of the characteristics and functions of
probation officers with those of the state troopers at issue in
Foley and the teachers in
Ambach. Foley
and
Ambach did not describe the outer limits of
permissible citizenship requirements. For example, although both of
those cases emphasized the community-wide responsibilities of
teachers and police, there was no suggestion that judges, who deal
only with a narrow subclass of the community, cannot be subject to
a citizenship requirement.
See Sugarman, 413 U.S. at
413 U. S. 647.
Similarly, although both
Foley and
Ambach
emphasized the unsupervised discretion that must be exercised by
the teacher and the police officer in the performance of their
duties, neither case suggested that jurors, who act under a very
specific set of instructions, could not be required to be citizens.
See Perkins v. Smith, 370 F.Supp.
Page 454 U. S. 445
134 (Md 1974),
summarily aff'd, 426 U.
S. 913 (1976). Definition of the important sovereign
functions of the political community is necessarily the primary
responsibility of the representative branches of government,
subject to limited judicial review. [
Footnote 12]
Looking at the functions of California probation officers, we
conclude that they, like the state troopers involved in
Foley, sufficiently partake of the sovereign's power to
exercise coercive force over the individual that they may be
limited to citizens. Although the range of individuals over whom
probation officers exercise supervisory authority is limited,
the
Page 454 U. S. 446
powers of the probation officer are broad with respect to those
over whom they exercise that authority. [
Footnote 13] The probation officer has the power both
to arrest, Cal.Penal Code Ann. §§ 830.5, 836, 1203.2 (West
Supp.1981); Cal.Civ.Proc.Code Ann. § 131.4 (West 1954); and to
release those over whom he has jurisdiction. Cal.Penal Code Ann. §
1203.1a (West Supp.1981). He has the power and the responsibility
to supervise probationers and insure that all the conditions of
probation are met and that the probationer accomplishes a
successful reintegration into the community. Cal.Penal Code Ann. §
1203.1 (West Supp.1981). With respect to juveniles, the probation
officer has the responsibility to determine whether to release or
detain offenders, Cal.Welf. & Inst.Code Ann. § 628 (West
Supp.1981), and whether to institute judicial proceedings or take
other supervisory steps over the minor. §§ 630, 653-654. In
carrying out these responsibilities, the probation officer
necessarily has a great deal of discretion that, just like that of
the police officer and the teacher, must be exercised, in the first
instance, without direct supervision:
"Because the probation or parole officer's function is not so
much to compel conformance to a strict code of behavior as to
supervise a course of rehabilitation, he has been entrusted
traditionally with broad discretion to judge the progress of
rehabilitation in individual cases, and has
Page 454 U. S. 447
been armed with the power to recommend, or even to declare,
revocation."
Gagnon v. Scarpelli, 411 U. S. 778,
411 U. S. 784
(1973).
One need not take an overly idealistic view of the educational
functions of the probation officer during this period to recognize
that the probation officer acts as an extension of the judiciary's
authority to set the conditions under which particular individuals
will lead their lives, and of the executive's authority to coerce
obedience to those conditions. [
Footnote 14] From the perspective of the probationer, his
probation officer may personify the State's sovereign powers; from
the perspective of the larger community, the probation officer may
symbolize the political community's control over, and thus
responsibility for, those who have been found to have violated the
norms of social order. From both of these perspectives, a
citizenship requirement may seem an appropriate limitation on those
who would exercise and, therefore, symbolize this power of the
political community over those who fall within its
jurisdiction.
Therefore, the judgment of the District Court is reversed, and
the case is remanded for further proceedings consistent with this
opinion.
So ordered.
[
Footnote 1]
One of the appellees, Chavez-Salido, subsequently became a
citizen. By that time, however, there were no longer any openings
for the job he had previously been denied on the grounds of his
noncitizenship. Appellees, at the time they applied for the
positions in question, were all lawfully present, resident aliens.
Therefore, we do not consider, and intimate no opinion about, any
limits the Constitution may place upon state action directed at
aliens who are here without the permission of the Federal
Government or who, if legally here, are not residents of the
State.
[
Footnote 2]
Under the California statute, the kinds of responsibilities of
deputy probation officers are the same as those of probation
officers, and both are considered "peace officers." Cal.Penal Code
Ann. § 830.5 (West Supp.1981). This opinion, therefore, will refer
simply to "probation officers" in discussing the positions at
issue.
[
Footnote 3]
The third appellee, Bohorquez, claimed only that he failed to
appeal a test score that disqualified him because he had been
informed that, without citizenship, an appeal would be useless. As
relief in this suit, Bohorquez sought only an opportunity to take a
new examination.
[
Footnote 4]
Although the individual defendants did not contest the
jurisdiction of the federal court, the county did. In their
complaint, appellees waived any claim against the county under 42
U.S.C. § 1983 -- the complaint was filed before this Court's
decision in
Monell v. New York City Dept. of Social
Services, 436 U. S. 658
(1978), which held that such an action could be brought against a
county. Appellees argued, and the District Court agreed, that they
did have a claim against the county directly under the Fourteenth
Amendment and under 42 U.S.C. § 1981, with jurisdiction in the
Federal District Court under 28 U.S.C. § 1331(a) because there was
more than $10,000 in controversy. In its second opinion, the
District Court readopted its earlier jurisdictional holdings and
declined to release appellees from their previous waiver of a
possible claim against the county under § 1983. Given our
resolution of the merits, and because jurisdiction over the
individual defendants is clear, we need not evaluate or otherwise
accept the District Court's jurisdictional findings with respect to
the county.
[
Footnote 5]
Congress has since limited the availability of three-judge
courts, The Three-Judge Court Amendments of 1976, Pub.L. 94-381, 90
Stat. 1119. This case, however, is not affected by those changes,
which do not apply to actions commenced before the date of the new
statute's enactment.
[
Footnote 6]
At times, the dissent seems to imply that our cases do not
establish a two-tiered standard of review --
e.g.,
"[
Sugarman] did not condone a looser standard for review
of classifications barring aliens from
political jobs.'"
Post at 454 U. S. 453.
At other times, however, the dissent explicitly refers to the
"Sugarman exception" as requiring
"[l]ess demanding scrutiny . . . for statutes deriving from 'a
State's historical power to exclude aliens from participation in
its democratic political institutions.'"
Post at
454 U. S.
456.
[
Footnote 7]
The full quotation from
Sugarman is as follows:
"'[E]ach State has the power to prescribe the qualifications of
its officers and the manner in which they shall be chosen.'
Boyd v. Nebraska ex rel. Thayer, 143 U. S.
135,
143 U. S. 161 (1892).
See Luther v.
Borden, 7 How. 1,
48 U. S.
41 (1849);
Pope v. Williams, 193 U. S.
621,
193 U. S. 632-633 (1904).
Such power inheres in the State by virtue of its obligation,
already noted above, 'to preserve the basic conception of a
political community.'
Dunn v. Blumstein, 405 U.S. at
405 U. S. 344. And this
power and responsibility of the State applies, not only to the
qualifications of voters, but also to persons holding state
elective or important nonelective executive, legislative, and
judicial positions, for officers who 'participate directly in the
formulation, execution, or review of broad public policy perform
functions that go to the heart of representative government.'"
413 U.S. at
413 U. S. 647.
This language is far-reaching, and no limits on it were suggested
by
Sugarman itself: almost every governmental official can
be understood as participating in the execution of broad public
policies. The limits on this category within which citizenship is
relevant to the political community are not easily defined, but our
cases since
Sugarman --
Foley v. Connelie,
435 U. S. 291
(1978), and
Ambach v. Norwick, 441 U. S.
68 (1979) -- suggest that this Court will not look to
the breadth of policy judgments required of a particular employee.
Rather, the Court will look to the importance of the function as a
factor giving substance to the concept of democratic
self-government.
[
Footnote 8]
Both the District Court and the parties mistakenly refer to this
argument as one based on the constitutional doctrine of
"overbreadth." "Overbreadth" is a doctrine of standing applicable
in certain First Amendment cases and under which litigants may
assert the rights of others not presently before the court.
See
Broadrick v. Oklahoma, 413 U. S. 601,
413 U. S.
611-615 (1973). Appellees do not claim to be asserting
the constitutional rights of others; rather, they claim that
California denies them the equal protection of the laws because the
restriction is so overinclusive that it destroys the State's
asserted justification.
[
Footnote 9]
It is worth noting, however, that, of the categories mentioned
by the District Court, toll-service employees, inspectors of the
Bureau of Livestock, and cemetery sextons were all eliminated from
coverage by amendments to Cal.Penal Code Ann.§ 830.4 (West
Supp.1981), passed in 1980. 1980 Cal.Stats., ch. 1340, p. 4724, §
12, effective Sept. 30, 1980.
[
Footnote 10]
The dissent specifically questions only four positions.
Post at
454 U. S. 455,
n. 7. Three of these -- Dental Board Inspectors, Parks and
Recreation Department employees, and voluntary fire wardens -- are
designated "peace officers" only when their "primary duty" is law
enforcement.
See Cal.Penal Code Ann. §§ 830.3(b), (c), (j)
(West Supp. 1980).
[
Footnote 11]
The dissent accuses the Court of holding that the law
enforcement character of some of the covered positions justifies
application of the citizenship restriction to unrelated positions.
Post at
454 U. S. 455.
We indicate no opinion as to whether noncitizen applicants for
other positions could successfully challenge the statute as applied
to them.
[
Footnote 12]
Appellees also argue that the statute is facially invalid
because it is impermissibly underinclusive. The District Court did
not consider this contention, and the only argument advanced by
appellees in support of this claim is that California fails to
impose a citizenship requirement upon its public school teachers.
Brief for Appellees 29. At various points, the dissent also relies
upon the alleged underinclusiveness of the statute.
Although there is some language in
Sugarman indicating
that such an argument is appropriate, 413 U.S. at
413 U. S. 640,
413 U. S. 642,
and that a statutory exclusion of aliens from a particular form of
public employment will be evaluated in light of the entire
framework of public employment positions open and closed to aliens,
clearly our subsequent cases have not adopted that position. Thus,
in both
Foley and
Ambach, only the specific
governmental functions directly at issue were considered.
Underinclusiveness arguments were relevant in
Sugarman
because there the classification involved -- the competitive civil
service -- swept in a wide variety of governmental functions. Such
a sweeping and apparently indiscriminate categorization raises
legitimate questions of arbitrariness that are not raised when the
State limits a particular and important governmental function --
e.g., coercive police power -- to citizens. When we deal
with such a specific category, underinclusiveness arguments are
relevant only within the category: are there, for example,
individuals who exercise the State's coercive police power that are
not required to be citizens? In this respect, the California
statutory scheme is not substantially underinclusive: Cal.Penal
Code Ann. § 830.7 (West Supp.1981) lists only two categories of
positions which have the power to arrest but are not "peace
officers" -- and therefore are not subject to the citizenship
requirement -- security officers at institutions of higher
education and certain individuals designated by a cemetery
authority.
[
Footnote 13]
Measuring the scope of community contacts is more difficult than
it may appear. Although the probation officer has responsibility
for only a relatively small part of the community, in exercising
that responsibility, the probation officer necessarily comes in
contact with a much broader section of the community. His
supervisory responsibilities will bring him into contact with many
of those with whom those under his supervision must interact --
e.g., employers, teachers, landlords, and family. In this
respect, he is very much like a policeman, who exercises his
coercive authority over a small class of individuals but carries
out his responsibilities through interactions with a much larger
segment of the community.
[
Footnote 14]
Thus, we do not find compelling the statistics presented by
amicus Service Employees International Union, and cited by
appellees at oral argument, Tr. of Oral Arg. 40, which indicate
that, because of a growing caseload, the time a probation officer
has to spend with any individual offender may be minimal.
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUSTICE MARSHALL,
and JUSTICE STEVENS join, dissenting.
Appellees Jose Chavez-Salido, Pedro Luis Ybarra, and Ricardo
Bohorquez are American-educated Spanish-speaking
Page 454 U. S. 448
lawful residents of Los Angeles County, California. [
Footnote 2/1] Seven years ago, each had a
modest aspiration -- to become a Los Angeles County "Deputy
Probation Officer, Spanish-speaking." Each was willing to swear
loyalty to the State and Federal Governments; indeed, appellee
Chavez-Salido declared his intent to become a citizen. By
competitive examination, two of the appellees, and possibly the
third, demonstrated their fitness for the jobs they desired.
[
Footnote 2/2] Appellants denied
them those jobs solely because they were not citizens. The Court
today concludes that appellees' exclusion from their chosen
profession is "a necessary consequence of the community's process
of political self-definition."
Ante at
454 U. S. 439.
The Court reaches this conclusion by misstating the standard of
review it has long applied to alienage classifications. It then
asserts that a lawfully admitted permanent resident alien is
disabled from serving as a deputy probation
Page 454 U. S. 449
officer because that job "
go[es] to the heart of
representative government.'" Ante at 454 U. S. 440,
quoting Sugarman v. Dougall, 413 U.
S. 634, 413 U. S. 647
(1973).
In my view, today's decision rewrites the Court's precedents,
ignores history, defies common sense, and reinstates the deadening
mantle of state parochialism in public employment. I must
dissent.
I
The Court properly acknowledges that our decisions regarding
state discrimination against permanent resident aliens have formed
a pattern.
Ante at
454 U. S. 436.
Since
Yick Wo v. Hopkins, 118 U.
S. 356 (1886), this Court has recognized and honored the
right of a lawfully admitted permanent resident alien to work for a
living in the common occupations of the community. In
Truax v.
Raich, 239 U. S. 33,
239 U. S. 41
(1915), the Court declared that right to be
"the very essence of the personal freedom and opportunity that
it was the purpose of the [Fourteenth] Amendment to secure. . . .
If this could be refused solely upon the ground of race or
nationality, the prohibition of the denial to any person of the
equal protection of the laws would be a barren form of words."
In
Sugarman v. Dougall, supra, we expressly refused to
exempt public employment positions from this general rule.
Sugarman, an 8-1 decision, struck down as facially
inconsistent with the Equal Protection Clause a New York statute
that excluded lawfully admitted aliens from all state civil service
jobs offered on the basis of competitive examinations.
Sugarman directed that permanent resident aliens may not
be barred
as a class from the common
public
occupations of the community. There, as here, the State had
asserted its substantial interest in ensuring "that sovereign
functions must be performed by members of the State." Brief for
Appellants in
Sugarman v. Dougall, O.T. 1972, No.
71-1222,
Page 454 U. S. 450
p. 10. Without denying the weight of that interest, the Court
concluded that, "judged in the context of the State's broad
statutory framework and the justifications the State present[ed],"
413 U.S. at
413 U. S. 640,
the State's chosen means were insufficiently precise to uphold its
broad exclusion of aliens from public employment.
Since
Sugarman, the Court consistently has held that,
in each case where the State chooses to discriminate against
permanent resident aliens,
"the governmental interest claimed to justify the discrimination
is to be carefully examined in order to determine whether that
interest is legitimate and substantial, and inquiry must be made
whether the means adopted to achieve the goal are necessary and
precisely drawn."
Examining Board v. Flores de Otero, 426 U.
S. 572,
426 U. S. 605
(1976).
See also Nyquist v. Mauclet, 432 U. S.
1,
432 U. S. 7
(1977);
In re Griffiths, 413 U. S. 717,
413 U. S.
721-722 (1973);
Graham v. Richardson,
403 U. S. 365,
403 U. S. 376
(1971). "Alienage classifications by a State that do not withstand
this stringent examination cannot stand."
Nyquist v.
Mauclet, 432 U.S. at
432 U. S. 7.
Applying this stringent standard here, I would hold that, on its
face, Cal.Gov't Code Ann. § 1031(a) (West 1980) violates the Equal
Protection Clause. Section 1031(a) makes citizenship one of six
unrelated prerequisites for employment as a "public office[r] or
employe[e] declared by law to be [a] peace office[r]." [
Footnote 2/3] Scattered sections of the
California Code then designate a variegated collection of public
employees as "peace officers," who, by definition must, be
citizens. When appellees first sought their jobs, the "peace
officer" category encompassed more than 70 public occupations,
including such apparently unrelated positions as toll takers,
cemetery sextons,
Page 454 U. S. 451
fish and game wardens, furniture and bedding inspectors,
voluntary fire wardens, racetrack investigators, county coroners,
State Supreme Court and Courts of Appeal bailiffs, messengers at
the State Treasurer's office, and inspectors for the Board of
Dental Examiners.
See Chavez-Salido v.
Cabell, 427 F.
Supp. 158, 169-170, n. 22 (CD Cal.1977) (listing positions). To
this day, the legislature has offered no reason why such divergent
classes of public jobs were gathered under the "peace officer"
umbrella. [
Footnote 2/4]
The history of the statute, reviewed by the District Court,
suggests the answer. Before 1961, California did not require any of
its peace officers to be citizens.
See 490 F.
Supp. 984, 986 (CD Cal.1980). Indeed, in 1851, California
granted only sheriffs, policemen, marshals, and constables
statutory "peace officer" status.
Id. at 986, n. 4. For
more than a century, the State did not reserve even those four
occupations for citizens. Over the decades, dozens of subsequent
enactments added other public positions to the "peace officer"
list, but none required peace officers to be citizens.
Ibid. Some positions were added to the list for reasons
totally unrelated to logic. [
Footnote
2/5]
Page 454 U. S. 452
In 1961, without stating any rationale,
"in one fell swoop, the legislature passed Government Code
Section 1031, which applied the mandatory citizenship requirement
to all of the positions on the list."
Id. at 986. The legislature apparently made no attempt
to include on the "peace officer" list all positions for which
citizenship arguably might be relevant or to exclude all positions
for which it plainly would be irrelevant. Nine years after §
1031(a) was enacted, California's own Attorney General stated:
"It is our opinion that . . . this citizenship requirement can
no longer validly be imposed. . . ."
"[P]rior to 1961, there was no general requirement of
citizenship to be a peace officer. We are aware of no change that
occurred that would justify the change at that date. . . . [W]e are
of the opinion that the classification is not constitutionally
permitted. There does not appear to be a compelling state interest
. . . to justify classifying certain peace officers as to
alienage."
Opinion No. 69-199, 53 Op. Cal.Atty.Gen. 63, 67-68 (1970).
After reviewing this history, the District Court sensibly
concluded, not once, but twice, that § 1031(a) could not survive
the rigorous standard of review mandated by
Sugarman and
its progeny.
See Chavez-Salido v. Cabell, 427 F.Supp. at
169-171;
Chavez-Salido v. Cabell, 490 F. Supp. at 985-986.
Noting that the State's own legal counsel had found the statute
unsupported by a compelling state interest, the District Court
concluded that the California Legislature had never made a reasoned
judgment to exclude aliens from each individual "peace officer"
position.
Id. at 985-987. The District Court then found
that, like the provision struck down in
Sugarman, §
1031(a) "is grossly overbroad and sweeps much too broadly in its
proscription of alien employment." 490 F. Supp. at 987.
Page 454 U. S. 453
Without even a glance at § 1031(a)'s history, the Court today
reverses, reasoning that the District Court improperly "applied a
standard of review far stricter than that approved in
Sugarman and later cases."
Ante at
454 U. S. 442.
The Court reads
Sugarman to hold that "strict scrutiny is
out of place when the restriction [on lawfully resident aliens]
primarily serves a political function."
Ante at
454 U. S. 439.
Based on its "casual reading" of the list of "peace officer"
positions from which aliens are excluded, the Court then decides
that "the unifying character of all categories of peace officers is
their law enforcement function."
Ante at
454 U. S. 443.
Conceding that § 1031(a) also bars aliens from jobs that "may have
only a tenuous connection to traditional police functions of law
enforcement,"
ante at
454 U. S. 443,
the Court nevertheless declares that alienage classifications "need
not be precise; there need only be a substantial fit" between the
classification used and the State's asserted interest.
Ante at
454 U. S.
442.
The Court's analysis fundamentally distorts
Sugarman.
That decision did not condone a looser standard for review of
classifications barring aliens from "political" jobs. In both
Sugarman and
Nyquist, the Court recognized that a
State may name its political community by exercising its
"historical and constitutional powers to define the
qualifications of voters or of 'elective or important nonelective'
officials 'who participate directly in the formulation, execution,
or review of broad public policy.'"
Nyquist v. Mauclet, 432 U.S. at
432 U. S. 11
(footnote omitted), quoting from
Sugarman, 413 U.S. at
413 U. S. 647.
At the same time, however, the Court warned that,
"in seeking to achieve this substantial purpose, with
discrimination against aliens, the means the State employs must be
precisely drawn in light of the acknowledged purpose."
Id. at
413 U. S.
643.
While the subsequent decisions in
Foley v. Connelie,
435 U. S. 291
(1978), and
Ambach v. Norwick, 441 U. S.
68 (1979), have explored the boundaries of a State's
power to define its political community, those cases have not
altered this
Page 454 U. S. 454
stringent standard of review.
Foley tempered the
declaration that a State may entrust "its most important policy
responsibilities" to its citizens with the caveat that a State may
not
"accomplish this end with a citizenship restriction that 'sweeps
indiscriminately,' . . . without regard to the differences in the
positions involved."
435 U.S. at
435 U. S. 296
and
435 U. S. 297,
n. 5, citing
Sugarman, 413 U.S. at
413 U. S. 643.
Similarly,
Ambach declared that judicial tolerance of
citizenship requirements for essential public offices "is an
exception to the general standard applicable to classifications
based on alienage." 441 U.S. at
441 U. S.
75.
Under the
Sugarman standard, a state statute that bars
aliens from political positions lying squarely within the political
community nevertheless violates the Equal Protection Clause if it
excludes aliens from other public jobs in an unthinking or
haphazard manner. The statutes at issue here represent just such an
unthinking and haphazard exercise of state power. The District
Court found, and the Court does not deny, that some of the more
than 70 "peace officer" positions from which aliens have been
barred "cannot be considered members of the political community no
matter how liberally that category is viewed." 490 F. Supp. at 987.
At the same time, California has long permitted aliens to teach in
public schools, to be employed on public works, and to serve in
most state, city, and county employment positions -- all positions
arguably within the political community. [
Footnote 2/6]
Page 454 U. S. 455
Thus, exactly like the statute struck down in
Sugarman,
California's statutory exclusion of aliens is fatally overinclusive
and underinclusive. It bars aliens from employment in numerous
public positions where the State's proffered justification has
little, if any, relevance. At the same time, it allows aliens to
fill other positions that would seem naturally to fall within the
State's asserted purpose.
Cf. Sugarman, 413 U.S. at
413 U. S. 642.
"Our standard of review of statutes that treat aliens differently
from citizens requires a greater degree of precision."
Ibid.
Nor can the Court reconcile its new notion of a "substantial
fit" with the stringent standard of review the Court long has
applied to alienage classifications. Every time the State requires
citizenship for a single "peace officer" position, it excludes
permanent resident aliens from hundreds or even thousands of public
jobs. The Court's novel standard of review condones a legislative
classification that excludes aliens from more than 70 public
occupations although citizenship cannot be even rationally required
for a substantial number of them. [
Footnote 2/7] The fact that many of those positions may
involve law enforcement cannot justify barring noncitizens from any
of the positions that plainly do not. Today's decision thus defies
the Court's earlier holdings that the States may not exclude aliens
from any "harmless and useful occupation" for which citizenship
cannot rationally be required.
Yick Wo v. Hopkins, 118
U.S. at
118 U. S. 374;
Truax v. Raich, 239 U.S. at
239 U. S.
41.
Page 454 U. S. 456
II
While
Sugarman unambiguously proscribed blanket
exclusion of aliens from state jobs, its dictum acknowledged a
State's power to bar noncitizens as a class from a narrowly
circumscribed range of important nonelective posts involving direct
participation "in the formulation, execution, or review of broad
public policy." 413 U.S. at
413 U. S. 647.
Under
Sugarman's exception, States may reserve certain
public offices for their citizens if those offices "perform
functions that go to the heart of representative government."
Ibid.
As originally understood, the
Sugarman exception was
exceedingly narrow. Less demanding scrutiny was deemed appropriate
only for statutes deriving from "a State's historical power to
exclude aliens from participation in its democratic political
institutions" or its "constitutional responsibility for the
establishment and operation of its own government."
Id. at
413 U. S. 648.
Long before
Sugarman, the Court warned that "the power of
a state to apply its laws exclusively to its alien inhabitants as a
class is confined within narrow limits,"
Takahashi v. Fish
& Game Comm'n, 334 U. S. 410,
334 U. S. 420
(1948).
In re Griffiths, 413 U. S. 717
(1973), decided the same day as
Sugarman, further
emphasized the "narrowness of the [
Sugarman] exception" by
asserting that States could not reserve for their citizens every
"vital public and political role."
Nyquist v. Mauclet, 432
U.S. at
432 U. S. 11,
citing
In re Griffiths, 413 U.S. at
413 U. S.
729.
Sugarman's holding made clear that a State's power to
exclude resident aliens from public occupations that entail only
"execution . . . of broad public policy" is limited.
Sugarman, 413 U.S. at
413 U. S. 647.
Foley v. Connelie, 435 U. S. 291
(1978), and
Ambach v. Norwick, 441 U. S.
68 (1979), then clarified that public jobs involving
execution, but not formulation or review, of executive and judicial
policy will meet
Sugarman's exception if they constitute
"one of the basic
Page 454 U. S. 457
functions of government" and "fulfil[l] a most fundamental
obligation of government to its constituency."
Foley, 435
U.S. at
435 U. S.
297.
Even accepting the judgments in
Foley and
Ambach as binding, I cannot embrace the Court's
unsupported assertion that "
Foley and
Ambach did
not describe the outer limits of permissible citizenship
requirements."
Ante at
454 U. S. 444.
From the Court's analysis in
Foley and
Ambach,
one must conclude that a State may not invoke
Sugarman's
narrow exception without making a substantial showing. [
Footnote 2/8]
I read
Foley and
Ambach to require the State
to show that it has historically reserved a particular executive
position for its citizens as a matter of its "constitutional
prerogativ[e]."
Sugarman, 413 U.S. at
413 U. S. 648.
Furthermore, the State must demonstrate that the public employee in
that position exercises plenary coercive authority and control over
a substantial portion of the citizen population. The public
employee must exercise this authority over his clientele without
intervening judicial or executive supervision. Even then, the State
must prove that citizenship "
bears some rational relationship
to the special demands of the particular position.'" Id.
at 413 U. S. 647,
quoting Dougall v. Sugarman, 339 F.
Supp. 906, 911 (SDNY 1971) (Lumbard, J., concurring).
Page 454 U. S. 458
Without such a rigorous test,
Sugarman's exception
swallows
Sugarman's rule. Yet the Court does not apply
such a rigorous test today. Instead, it "look[s] to the importance
of the [governmental] function as a factor giving substance to the
concept of democratic self-government."
Ante at
454 U. S. 441,
n. 7. Applying this nebulous standard, the Court then concludes
that Los Angeles County probation officers perform three "important
sovereign functions of the political community."
Ante at
454 U. S. 445.
Yet on inspection, not one of those functions justifies excluding
all permanent resident aliens from the deputy probation officer
position.
First, the Court declares that probation officers "partake of
the sovereign's power to exercise coercive force over the
individual."
Ibid. Yet the Court concedes that "the range
of individuals over whom probation officers exercise supervisory
authority is limited."
Ibid. Even over those individuals,
a probation officer's coercive powers are carefully conditioned by
statute. Probation officers cannot carry guns.
See 490 F.
Supp. at 985, n. 2. They may arrest only those probationers under
their jurisdiction, and even then only for the purpose of bringing
them before the court for a determination whether they should be
held or released. Cal.Penal Code Ann. § 1203.2 (West Supp.1981).
State statutes authorize probation officers to detain juveniles
only in emergencies and, even then for only brief periods.
Cal.Welf. & Inst. Code Ann. §§ 309, 313, 315 (West
Supp.1981).
The Court claims that § 1031(a) "limit[s] the exercise of the
sovereign's coercive police powers over the members of the
community to citizens."
Ante at
454 U. S. 444.
Yet other statutes
Page 454 U. S. 459
belie that assertion. The State gives the power of arrest to a
number of public employees who are not peace officers, but does not
require that those employees be citizens.
See Cal.Penal
Code Ann. § 830. 7 (West Supp.1981) (describing "[p]ersons not
peace officers but having powers of arrest"). Moreover, California
authorizes any "private person," including permanent resident
aliens, to arrest others who have actually committed felonies or
who have committed or attempted public offenses in their presence.
§§ 834, 837. The Court's hollow assertion that the legislature has
reserved its sovereign coercive powers for its citizens ignores the
reality that the State has already bestowed some of those powers on
all private persons, including aliens.
Second, the Court asserts that probation officers necessarily
have "discretion that . . . must be exercised, in the first
instance, without direct supervision."
Ante at
454 U. S. 446.
Yet to say this is to say very little. Almost everyone who works in
the government bureaucracy exercises
some discretion that
is unsupervised in the first instance. The Court itself observes
that probation officers have discretion primarily to investigate,
to supervise, to evaluate, and to recommend.
Ante at
454 U. S.
446-447. Their primary duties are preparing presentence
reports, supervising probationers, and recommending sentences and
probationary terms.
Chavez-Salido v. Cabell, 427 F. Supp.
at 171.
While I do not denigrate these functions, neither can I equate
them with the discretionary duties of policemen, judges, and
jurors. Unlike policemen, probation officers are not "clothed with
authority to exercise an almost infinite variety of discretionary
powers."
Foley v. Connelie, 435 U.S. at
435 U. S. 297.
[
Footnote 2/9] Unlike jurors who
deliver final verdicts and
Page 454 U. S. 460
judges who impose final sentences, the decisions of probation
officers are always advisory to and supervised by judicial
officers. California probation officers cannot, by themselves,
declare revocation of probation. Cal.Penal Code Ann. § 1203.2 (West
Supp.1981). Furthermore, the investigative and reporting duties of
a probation officer are extensively regulated by statute. §§
1203.2-1203.12. The fact that probation officers play an integral
role in the criminal justice system does not separate them from
prison guards, bailiffs, court clerks, and the myriad other
functionaries who execute a State's judicial policy.
More significantly, California's inflexible exclusion of aliens
from deputy probation officer positions is inconsistent with its
tolerance of aliens in other roles integral to the criminal justice
system. California counties apparently may appoint aliens to the
positions of chief juvenile probation officer or chief adult
probation officer "if . . . the best interests of the county will
be served." Cal.Gov't Code Ann. § 24001 (West Supp.1981).
Furthermore, even before
In re Griffiths, 413 U.
S. 717 (1973), the California Supreme Court had held
that lawfully resident aliens may not be barred constitutionally
from the practice of law.
Raffaelli v. Committee of Bar
Examiners, 7 Cal. 3d 288,
496 P.2d 1264 (1972). Nor are resident aliens barred from becoming
California Superior Court judges or Supreme Court justices.
[
Footnote 2/10]
Page 454 U. S. 461
Thus, a criminal defendant in California may be represented at
trial and on appeal by an alien attorney, have his case tried
before an alien judge and appealed to an alien justice, and then
have his probation supervised by a county probation department
headed by an alien. I find constitutionally absurd the Court's
suggestion that the same defendant cannot be entrusted to the
supervised discretion of a resident alien deputy probation officer.
In the Court's own words, a statutory scheme that tolerates such a
result is sufficiently
"haphazard as to belie the State's claim that it is only
attempting to ensure that an important function of government be in
the hands of those having the 'fundamental legal bond of
citizenship.'"
Ante at
454 U. S.
442.
The Court's third and final claim is that a probation officer
acts as an actual and symbolic "extension" of the judiciary's
authority to set conditions of probation and the executive's
authority to coerce obedience to those conditions.
Ante at
454 U. S. 447.
Yet, by so saying, the Court simply concedes that the ultimate
authority for a probation officer's acts lies elsewhere. In
Griffiths, we held that aliens are not constitutionally
disabled from serving as "officers of the court." 413 U.S. at
413 U. S.
722-727. Given the size of the State's judicial and
executive bureaucracy, little would be left of
Sugarman's
holding if a State could invoke the
Sugarman exception to
exclude probation officers from any position which "extended"
judicial or executive authority. [
Footnote 2/11]
Nor am I convinced by the Court's claim that a probation officer
personifies the State's sovereign powers in the eyes of
Page 454 U. S. 462
probationers and the larger community. This justification knows
no limit. Surely a taxpayer feels the State's sovereign power when
the local tax collector comes to his door; the larger community
recognizes the sovereign power of the government when local
firefighters put out a fire. The State could not also demand
citizenship for those jobs, however, without thoroughly
eviscerating
Sugarman. Nor does the Court deny that the
sight of foreign-born individuals not merely following, but
encouraging others to follow, our laws is an equally powerful
symbol of respect for our society's social norms.
In the end, the State has identified no characteristic of
permanent resident aliens as a class which disables them from
performing the job of deputy probation officer.
Cf. Foley v.
Connelie, 435 U.S. at
435 U. S. 308 (STEVENS, J., dissenting). The State does
not dispute that these appellees possess the qualifications and
educational background to perform the duties that job entails.
See nn.
454
U.S. 432fn2/1|>1 and
454
U.S. 432fn2/2|>2,
supra. Indeed, the State advances
no rational reason why these appellees, native Spanish-speakers
with graduate academic degrees, are not superbly qualified to act
as probation officers for Spanish-speaking probationers, some of
whom themselves may not be citizens.
Cf. Amach v. Norwick,
441 U.S. at
441 U. S. 84,
441 U. S. 87-88
(dissenting opinion).
The State cannot challenge the appellees' lack of familiarity
with local laws or rules. Such a consideration might disqualify
nonresident citizens, but not permanent resident aliens who have
lived in California for much of their lives. Nor can the State
presume that aliens as a class would be less loyal to the State.
The Court's rulings in
In re Griffiths, 413 U.S. at
413 U. S. 726,
n. 18, and
Hampton v. Mow Sun Wong, 426 U. S.
88,
426 U. S. 111,
n. 43 (1976), clearly state that one need not be a citizen in order
to swear in good conscience to support the Constitution. When these
appellees applied for their jobs, they expressed their willingness
to take such oaths. One later declared his intent to become, and
then became, a citizen.
See
Page 454 U. S. 463
490 F. Supp. at 985, n. 2. Finally, the State cannot claim that,
by enacting § 1031(a), it seeks to encourage aliens to become
citizens. That objective is an exclusively federal interest.
Nyquist v. Mauclet, 432 U.S. at
432 U. S.
10-11.
I only can conclude that California's exclusion of these
appellees from the position of deputy probation officer stems
solely from state parochialism and hostility toward foreigners who
have come to this country lawfully. I find it ironic that the Court
invokes the principle of democratic self-government to exclude from
the law enforcement process individuals who have not only resided
here lawfully, but who now desire merely to help the State enforce
its laws. Section 1031(a) violates appellees' rights to equal
treatment and an individualized determination of fitness.
I would affirm the District Court's ruling that § 1031(a) is
unconstitutional on its face and as applied.
[
Footnote 2/1]
Chavez-Salido, born in Mexico, has been a permanent legal
resident of this country for 26 years. He has received all his
formal education in California, including a Bachelor of Arts degree
in Mexican-American studies from California State College at Long
Beach.
Ybarra, born in Spain, has been a permanent resident of this
country since 1972. He possesses a Bachelor of Arts degree in
theology from Camillas University in Spain, and a Master of Arts
degree in African Studies from the University of California at Los
Angeles. He is working for another Master's degree, in sociology,
at California State University at Northridge.
Bohorquez, born in Colombia, has been a permanent resident of
this country since 1961. He has a Bachelor of Arts degree in
Latin-American studies from the University of California at Los
Angeles. App.19-23.
[
Footnote 2/2]
Chavez-Salido scored 95 out of 100 on a qualifying oral
examination for the Deputy Probation Officer (DPO) II,
Spanish-speaking, position and 100 out of 100 on the oral
examination for the DPO Trainee position, but was offered neither
job, solely because of his citizenship. Ybarra was denied
employment after passing examinations for the DPO Trainee and DPO
II positions. Bohorquez did not pass his initial oral examination
for DPO II, but did not appeal his examination results after
appellants told him his alienage made an appeal useless.
Id. at 124.
[
Footnote 2/3]
Section 1031(a) provides that a peace officer must be at least
18, fingerprinted, of good moral character, a high school graduate
(or the equivalent thereof), physically and mentally healthy, and
"a citizen of the United States."
[
Footnote 2/4]
After this litigation began, and the District Court had twice
declared § 1031(a) unconstitutional, the California Legislature
twice amended sections of its Penal Code, removing some positions
from the "peace officer" list and adding others.
See 490 F.
Supp. 984, 986-987, n. 6 (CD Cal.1980) (listing additions to
and deletions from the peace officer list).
See also 1980
Cal.Stats., ch. 1340, effective Sept. 30, 1980 (same). The
legislature still has never declared what criteria it uses to
decide whether a particular government position deserves "peace
officer" status.
[
Footnote 2/5]
A judge of the California Court of Appeal once noted:
"No mystery surrounds extension of the traditional definition of
peace officer to such an unrecognizable degree by the Legislature.
The Legislature must respond to the interests of various groups.
Correctional officers, for example, were granted the status of
'peace officers' in order that they may obtain better group
insurance benefits. . . . [B]ecause peace officers appear to have
enjoyed better benefits in times past, many employee groups, even
tangentially associated with the role of peace officers, have
persuaded the Legislature to include them within the term 'peace
officer.'"
Hetherington v. State Personnel Bd., 82 Cal. App. 3d
582, 600, 147 Cal. Rptr. 300, 311 (1978) (Reynoso, J.,
dissenting).
[
Footnote 2/6]
See Purdy & Fitzpatrick v. State, 71 Cal. 2d
566, 456 P.2d 645 (1969) (invalidating citizenship requirement
for employment on public works); 1970 Cal.Stats., ch. 653, p. 1277,
§ 1, repealing Art. 2, ch. 2, Pt. 7, Div. 2, Cal.Lab. Code Ann. §
1940 (West 1955) (former citizenship requirement for employment in
any department of the State or of any county or city).
See
generally Comment, The California Exclusion of Permanent
Resident Aliens from Appointive Public Office, 11 C.W.L.R. 117,
126-131 (1974) (listing California governmental positions from
which permanent resident aliens have and have not been
excluded).
[
Footnote 2/7]
The Court cannot seriously argue, for example, that the
positions of Dental Board inspector, messenger in the State
Treasurer's office, Parks and Recreations Department employee, and
volunteer fire warden represent "important nonelective positions,"
see Sugarman v. Dougall, 413 U. S. 634,
413 U. S. 647
(1973), of the type the States historically or constitutionally
have reserved for their citizens. Yet even after the legislature's
latest amendments, all remain "peace officer" positions from which
aliens are excluded by § 1031(a).
[
Footnote 2/8]
In
Foley v. Connelie, the Court held that the State may
require policemen to be citizens because they are "clothed with"
what are described as "plenary discretionary powers." 435 U.S. at
435 U. S.
297-298. Policemen exercise those powers "over people
generally" as part of their "pervasive" presence in modern society.
Id. at
435 U. S.
297-299. Because policemen often act "without prior
judicial authority," they require a grant of "prophylactic
authority" from the State.
Id. at
435 U. S. 298.
Exercise of that authority demands a "very high degree of judgment
and discretion, the abuse or misuse of which can have serious
impact on individuals."
Ibid.
Ambach v. Norwick held that a State may bar aliens who
have not declared their intent to become citizens from teaching in
public schools because teachers perform a similarly significant
"governmental function." Schoolteachers, Ambach noted, possess a
high "degree of responsibility and discretion" which they exercise
to fulfill the government's basic obligation to provide public
education. 441 U.S. at
441 U. S. 75.
Furthermore, teachers have "direct, day-to-day contact" with their
students, exercise unsupervised discretion over them, act as role
models, and influence their students' attitudes about the
government and the political process.
Id. at
441 U. S.
779.
[
Footnote 2/9]
Nor can the Court argue by analogy to
Ambach v.
Norwick, 441 U. S. 68
(1979), that probation officers, like teachers, influence their
probationers' "attitudes . . . toward government, the political
process, and a citizen's social responsibilities."
Id. at
79. Such an assertion would ignore the reality of a modern
probation officer's life.
In 1973, the average federal probation officer supervised nearly
100 offenders. Federal Judicial Center, Probation Time Study 3
(Feb. 26, 1973). Each offender under supervision was accorded
between six and eight hours of supervision from his probation
officer in a year, or seven to nine minutes per week.
Ibid. It blinks reality to suggest that a probation
officer subject to these pressures has either the time or the
inclination to give his probationers lessons in civics.
[
Footnote 2/10]
Until 1966, Cal.Gov't Code Ann. §§ 69600, 68804 required that
Superior Court judges and Supreme Court justices be citizens. In
1967, however, those provisions were repealed. 1967 Cal.Stats., ch.
17, pp. 841, 845, §§ 61, 87. As a result, the only remaining
restriction on becoming a judge in California is membership in the
state bar for a certain number of years. Cal.Const., Art. VI, § 15.
After the California Supreme Court's decision in
Raffaelli, aliens became eligible for the bar and, hence,
to become judges.
[
Footnote 2/11]
The Court concedes as much when it notes that "almost every
governmental official can be understood as participating in the
execution of broad public policies."
Ante at
454 U. S. 441,
n. 7.