against political activities by court-appointed employees has been upheld in the face of First Amendment challenges brought by a probation officer seeking to run for district justice. See Giglio v. Supreme Court of Pennsylvania, 675 F. Supp. 266, 270-71 (M.D.Pa. 1987).
Government has an even more substantial interest in restricting the political activities of police officers. Pollard v. Board of Police Comm'rs, 665 S.W.2d 333, 339 (Mo. en banc 1984), cert. denied, 473 U.S. 907, 87 L. Ed. 2d 657, 105 S. Ct. 3534 (1985) (citing Otten v. Schicker, 492 F. Supp. 455, 457 (E.D.Mo. 1980), aff'd, 655 F.2d 142 (8th Cir. 1981)). The integrity and discipline of the force is a primary public concern. Gasparinetti v. Kerr, 568 F.2d 311 (3d Cir. 1977), cert. denied, 436 U.S. 903, 56 L. Ed. 2d 401, 98 S. Ct. 2232 (1978). Public confidence in the law enforcement institution is a very important factor. Id. As the Supreme Court noted in United Public Workers v. Mitchell, supra, the legitimate authority of government to regulate the political activity of police officers has been recognized since before the turn of the century. United Public Workers, 330 U.S. at 99 n.34; see also Pollard, 665 S.W.2d at 339.
Against the above backdrop of authority, the plaintiff challenges the instant statute asserting that the prohibition -- "engaging or participating in conducting of any political or election campaign otherwise than to exercise his own right of suffrage" is vague and overbroad.
A statute is vague when it "either forbids or requires the doing of an act in terms so vague that men of ordinary intelligence must necessarily guess at its meaning and differ as to its application." Connally v. General Construction Co., 269 U.S. 385, 391, 70 L. Ed. 322, 46 S. Ct. 126 (1926); Broadrick, 413 U.S. at 607; Aiello v. City of Wilmington, Delaware, 623 F.2d 845, 850 (3d Cir. 1980). A vague statute violates due process because it neither affords fair notice to potential violators nor provides appropriate standards for enforcement. Aiello, 623 F.2d at 850. Statutory vagueness is problematic where it may chill the exercise of protected First Amendment rights. Rode v. Dellarciprete, 845 F.2d 1195, 1199 (3d Cir. 1988) (citing Baggett v. Bullitt, 377 U.S. 360, 372-73, 12 L. Ed. 2d 377, 84 S. Ct. 1316 (1964)).
A party must have standing to bring a vagueness challenge against an otherwise properly enacted statute. "When a litigant's conduct clearly falls within the permissible purview of a statute, such an individual lacks standing to challenge the statute for vagueness, even though the statute may be vague as applied to others." Aiello, 623 F.2d at 850; Rode, 845 F.2d at 1200. There is no question that the instant statute seeks to prohibit the political activity of actively participating in a campaign for elected office. Here the plaintiff wishes to engage in active candidacy for public office. The plaintiff seeks this injunction on the basis that it is necessary to gain a party endorsement in order to wage a successful campaign. The plaintiff's actions of contacting the township solicitor immediately after indicating his intention to seek the office of district justice in 1992 evidence plaintiff's understanding that the conduct which he seeks to engage in falls directly within the 'hard core' of the statute's proscriptions. Thus, plaintiff lacks standing to challenge the statute on vagueness grounds because it clearly prohibits the active candidacy for elected office in a partisan election.
The standing requirement for overbreadth is somewhat more relaxed. "Overbreadth challenges may be brought even by claimants whose conduct is not constitutionally protected where hypothetical third parties might be chilled in the exercise of their First Amendment rights by the statute." Id. (citing Aiello, 623 F.2d at 860). A statute is overbroad if it "does not aim specifically at evils within the allowable area of state control but, on the contrary, sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech." Rode, 845 F.2d at 1200 (quoting Thornhill v. Alabama, 310 U.S. 88, 97, 84 L. Ed. 1093, 60 S. Ct. 736 (1940)). Where the statute regulates both conduct and speech, as in the matter sub judice, the Supreme Court has held that the "overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick, 413 U.S. at 615; see also Rode, 845 F.2d at 1200.
In Broadrick, the Court noted that the Oklahoma statute need not be discarded in toto merely "because some persons' arguably protected conduct may or may not be caught or chilled by the statute." The court noted that the statute attempted to regulate in an even-handed manner, its scope had been narrowed by administrative interpretation and the litigant's conduct was clearly within the statute's permissible scope. Broadrick, 413 U.S. at 616-18. Thus, in the present context the overbreadth doctrine is applicable if "the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail." Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 71 L. Ed. 2d 362, 102 S. Ct. 1186 (1982) (emphasis added).
The plaintiff argues that the phrases "engaging in," "participating in" and "any political or election campaign" sweep far too much within the statute's ambit of prohibition.
However, in the context of a facial overbreadth challenge, a court will not declare a statute invalid where a limiting construction has been or could be placed on the challenged statute. Broadrick, 413 U.S. at 613. No state court has construed the statute in the face of a constitutional challenge.
Here the statute permits first class townships to sanction police officers for actively engaging in election campaigning. The plaintiff's anticipated conduct clearly falls within the legitimate sweep of the statute. The statute is aimed at the particular evils that active involvement in election campaigns may visit on the appearance of police services to the community. The statute clearly prohibits active campaigning in a political or election campaign. The wording of the statute indicates that it is only aimed at political or election campaign activities, an activity which can be legitimately regulated. This construction renders the statute constitutional.
Moreover, where the possible impermissible application of a statute is likely to be relatively low, "it may be more appropriate to guard against the statute's conceivably impermissible applications through case-by-case adjudication rather than through facial invalidation." Aiello, 623 F.2d at 854. Beyond the prohibition against election campaigning, the plaintiff has presented no evidence that the statute has been used to suppress other forms of constitutionally protected speech. At this juncture, it appears that a case-by-case approach would be the appropriate course.
Plaintiff argues that there are more narrowly tailored regulations available to protect the state's interest in regulating campaigns for district magistrate. Plaintiff cites the ethical rules embodied in 42 Pa. C.S. District Justices Standards of Conduct Rule 15: Public Office and Political Conduct, which curtail the partisan activity in which a candidate for district justice may engage and Pennsylvania's "mini-Hatch Act" which prohibits certain political conduct by classified civil service employees. Pursuant to its authority to implement legislatively granted powers, the defendant enacted a resolution on January 24, 1993, adopting the prohibitions and permissive conduct of 71 P.S. § 741.905(b)
as its interpretation of the challenged statute's purview. Plaintiff argues that the township code provision is in conflict with the restrictions in the civil service code and therefore the township code must be discarded.
Plaintiff contends that because the township code contains a prohibition on all campaign activities, while the civil service code contains a listing of permissible First Amendment activities, the township code is too restrictive.
The issue raised by the above argument is that the legislature does not possess the authority to extend the ability to limit active campaigning by police officers who enjoy a form of civil service protection, or that it is unnecessary to do so. However, it is clear that all police officers in first class townships, incorporated towns and boroughs (except those subdivisions employing fewer than three officers) are treated as civil service employees. Police officers of these subdivisions are granted special police civil service protection; the general civil service code is not applicable to this class of police officers. It follows that the legislature can extend the concomitant authority to protect against one of the prime political influences which corrupt the merit system. Furthermore, because the legislature's power to proscribe political campaigning for elective office by general civil service employees has been clearly upheld, it appears that the legislature can likewise legitimately determine which forms of local government possess the state's interest and need such authority to regulate employees who are similarly situated.
The plaintiff also challenges the statute on equal protection grounds. The plaintiff presents affidavits which attest to the fact that certain police officers have been permitted to run for the minor judiciary while remaining chief of police or patrolman in a first class township. Plaintiff points to the fact that only first class townships, incorporated towns and boroughs are provided with the express authority to sanction officers for campaigning for elected office, and for subdivisions with fewer than three officers, there is no such expressed authority. Although third class city police officers are subject to the civil service restrictions, plaintiff points to the fact that the legislature placed no direct prohibition on third class city officers. The result, the plaintiff argues, is unequal treatment of a class which is not rational and results in discriminatory enforcement.
The plaintiff is a member of a class of officers employed by first class townships. These officers and officers of boroughs and incorporated townships employing three or more officers are given civil service protection. Within this legislatively created class, all officers are treated equally. Subdivisions with fewer than three officers do not fall within the police civil service system. Those officers are only granted tenure protection. See Act of June 15, 1951, P. L. 586, 53 P.S. §§ 811-815. Thus, the legislature has extended the authority to prevent active political or election campaigning to those officers which enjoy the attributes of police civil service protection. This distinction can hardly be labeled as arbitrary or irrational.
Furthermore, the Supreme Court has noted that "the legislature must have some leeway in determining which of its employment positions require restrictions on partisan political activities and which may be left unregulated." Broadrick, 413 U.S. at 607 n.5 (citing McGowan v. Maryland, 366 U.S. 420, 6 L. Ed. 2d 393, 81 S. Ct. 1101 (1961). "A state can hardly be faulted for attempting to limit the positions upon which such restrictions are placed." Id. The legislature has not expressly provided second class townships and boroughs with the authority to limit the political campaigning of their police officers. There is, however, no mandated police civil service system employed in those types of subdivisions either. This is precisely the type of deference that the Supreme Court noted in Broadrick. The plaintiff fails to explain why the legislature's determination that those forms of local government which are required to provide civil service protection to their police officers may not exercise the state's interest in prohibiting the effects of political campaigning from affecting this type of civil service system. Every officer within plaintiff's class is provided with the protection and is equally restricted from campaigning for public office.
Therefore, the court believes that plaintiff is not likely to succeed on the equal protection claim.
C. Harm to the Defendant and the Public Interest
The adverse effect upon the opposing party will be great if the court grants a preliminary injunction. Granting such relief would also not be in the public interest.
In deciding whether to grant injunctive relief, the court should consider whether issuing a preliminary injunction would cause greater harm to the other party. The defendant notes that its interest and the public interest are the same. This court agrees.
Plaintiff contends that granting the injunction will not harm the defendant and therefore only a nominal bond should be required. The defendant contends that the issuance of a preliminary injunction will effectively undermine the interest of the township and the public in maintaining the integrity of the township's police force. The appearance of impropriety with regard to the integrity of the administration of police protection is a compelling governmental interest. The favoritism and partisan support inherent in a campaign can create an atmosphere for the improper distribution of police services and inject political influences into the internal administration of the defendant's police services. It is this appearance of impropriety that the statute in question is designed to protect against. The case law adequately establishes the validity of this interest. Thus, the defendant has a sufficient interest in avoiding the appearance of impropriety created by the activity in question. If this court were to grant injunctive relief, the very evils the statute is designed to protect against will be visited upon the defendant. Thus, the defendant will be irreparably injured and the public interest will not be served.
For the reasons stated above, this court finds that plaintiff has not established imminent irreparable harm or a likelihood of success on the merits. Also, if the relief requested is granted, the harm to defendant and the public interest will be great. Therefore, the motion for emergency injunctive relief will be denied.
An appropriate order will follow.
Date: February 11, 1993
ORDER OF COURT
AND NOW, this 11th day of February, 1993, for the reasons stated in the opinion filed this day, IT IS ORDERED that plaintiff's motion for emergency injunctive relief (Document No. 2) be, and the same hereby is, denied.