The opinion of the court was delivered by: HART
HART, J., District Judge:
The plaintiff and intervening plaintiff in this action are staff attorneys of legal services agencies funded by the Legal Services Corporation [Corporation], a corporation created by Congress to provide legal assistance to the poor. They have asked this Court,
by way of a Motion for Preliminary and Permanent Injunction, to declare unconstitutional and enjoin enforcement of a portion of the Legal Services Corporation Act, § 1007(a)(6), 42 U.S.C. § 2996f(a)(6)(Supp. V 1975), [the Act], and regulations promulgated thereunder, 41 Fed. Reg. 25,900-25,901 (1976)(to be codified in 45 C.F.R. 1608.5(c)), that prevent staff attorneys
from seeking election to partisan or nonpartisan political offices during the period for which they receive compensation from the Corporation.
There is no question that both the plaintiff and the intervenor have engaged in political activities that subject them to possible disciplinary action, including termination of employment from their respective legal services agencies.
Plaintiff Smith has sought re-election to the Board of Trustees of the School District of Greenville County, South Carolina,
and intervenor Chassy ran for election to a Justice Court judgeship in Merced County, California.
Although these candidacies occurred in the course of "non-partisan" elections, such activity is clearly prohibited by the Act, which requires the Corporation to
"* * * insure that staff attorneys refrain at any time during the period for which they receive compensation under this subchapter . . . from political activities of the type prohibited by section 1502(a) of Title 5, whether partisan or nonpartisan; . . ." 42 U.S.C. 2996f (a)(6).
The reference to 5 U.S.C. 1502(a) is to a portion of the Hatch Act which provides in relevant part that a person subject to its coverage may not "be a candidate for elective office." 5 U.S.C. § 1502(a)(3).
The constitutional attack on the Act is a dual one, although the issues are interrelated. On the one hand it is claimed that the restriction on nonpartisan candidacies contravenes the staff attorneys' First Amendment rights to free expression. As an independent matter, they assert that the provisions violate their right to equal protection of the law as guaranteed by the Fifth Amendment.
The history of the Supreme Court's interpretation of the Hatch Act makes it abundantly clear that Congress has power to regulate the partisan political activities of government employees. See Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 93 S. Ct. 2880, 37 L. Ed. 2d 796 (1973); United Public Workers v. Mitchell, 330 U.S. 75, 91 L. Ed. 754, 67 S. Ct. 556 (1947). Plaintiffs urge, however, that this line of authority is directed solely at prohibitions of partisan activity, and that the considerations which led to the validation of the Hatch Act are not analogous to a situation involving a nonpartisan election.
We cannot agree with this contention. It is true, of course, that Mitchell and Letter Carriers relied heavily on the dangers that partisan political activity pose to an effective public service. Nowhere in either of these opinions, however, is there any intimation that Congress was limited to controlling only partisan behaviour. In fact, the Letter Carriers decision rather unequivocably reaches the opposite conclusion:
"We agree with the basic holding of Mitchell that plainly identifiable acts of political management and political campaigning on the part of federal employees may constitutionally be prohibited." 413 U.S. at 567.
The general proposition of these cases is that "the government has an interest in regulating the conduct and 'the speech of its employees that [differs] significantly from those it possesses in connection with regulation of the speech of the citizenry in general.'" Letter Carriers, 413 U.S. at 564. Undoubtedly there are limits on the power of the national legislature to control the political activities of federal employees. But, in determining whether a particular prohibition has transgressed the Constitution, we do not direct the inquiry toward determining if a particular type of activity is prohibited. Rather, the question in each case is whether the statutory scheme is "'within reasonable limits,' even though the regulation trenches to some extent upon unfettered political action." Mitchell, 330 U.S. at 102.
In measuring the reasonableness of a statute such as this, great deference must be accorded to the judgment of our elected representatives inasmuch as "the determination of the extent to which political activities of governmental employees shall be regulated lies primarily with Congress." Mitchell, 330 U.S. at 102. And in the case before us there is ample evidence that Congress fully weighed the dangers of both partisan and nonpartisan political activity when it passed the Legal Services Corporation Act.
The considerations relevant to partisan political action are well documented in the Hatch Act cases, and need not be reiterated at this time. In developing the Legal Services Corporation, however, Congress looked to "practice, history, and changing educational, social and economic conditions," Mitchell, 330 U.S. at 102, when it determined that regulation reaching beyond partisan activity was necessary. The congressional debates in both Houses are replete with assertions of concern over the political actions taken by legal services attorneys.
The program, originally funded pursuant to provisions of the Economic Opportunity Act of 1964, 42 U.S.C. § 2809(a)(3) (1970), had become "controversial and embattled,"
119 Cong. Rec. 40475, much to the detriment of the poor whose mission it was to serve. Indeed, the "central objective of the legislation," was "to free the program from outside political influence," 119 Cong. Rec. 40476, and to that end great emphasis was placed upon the creation of a politically independent legal services corporation.
It may be true that many, if not all, of the abuses that were of concern to Congress could have been solved through the prohibition of solely partisan activities. But, "whether there are such differences and what weight to attach to them, are matters of detail for Congress." Mitchell, 330 U.S. at 102. In this respect, it is useful to note the words of Representative Quie, who ...