(concurring) .
While I concur in the decision of the Court that defendants’ motion for summary judgment should be denied, I reach this result by a substantially different path. Since I would conclude that plaintiffs’ constitutional attacks on Section 33 are without merit; I consider it important to trace my steps and delineate the narrow basis for my concurrence.
The defendants have moved for summary judgment on Count I of the complaint asserting that Section 33, in all respects challenged by the plaintiffs, is consistent with the Constitution of the *449United States.1 I agree, nevertheless, I conclude that suminary judgment should be denied because there is a material dispute of fact as to whether the plaintiffs are threatened with a deprivation of liberty without due process of law in violation of the Fourteenth Amendment. More specifically, I conclude that the disparagement of the staff of the Probation and Parole Section inherent in Section 33’s legislative declaration together with the subsequent but immediate attempt by the State to discharge plaintiffs without charge and a hearing provides sufficient evidence of a threatened violation of the Fourteenth Amendment to preclude summary judgment.
Before examining each of the plaintiffs’ challenges to Section 33, it is important to note what is not involved in this case. Count I of the complaint asserts no violation of plaintiffs’ rights of association or free speech, or of any other rights secured by the First Amendment to the United States Constitution. It alleges no facts from which it could be inferred that any of the plaintiffs have been, or will be, discharged, disciplined or otherwise discriminated against because of the exercise of any such rights. In particular, it alleges no facts which shed any light on whether or not plaintiffs are members of a union, or whether or not they desire to join a union. In short, there is no First Amendment issue tendered in this case.
I. EQUAL PROTECTION OF THE LAWS.
Where, as here, a state statute is challenged on equal protection grounds and the alleged infirmity is founded on claims other than that the statute infringes upon a “fundamental right” 2 or creates a “suspect classification,”3 the relevant question for the court is solely “whether the challenged classification rests on grounds wholly irrelevant to the achievement of a valid state objective.” Turner v. Fouche, 396 U.S. 346, 362, 90 S.Ct. 532, 541, 24 L.Ed.2d 567 (1970); Developments in the Law: Equal Protection, 82 Harv.L.Rev. 1067, 1076-1087 (1969). The challenged state law is entitled to a presumption of validity and must be allowed to stand unless the one mounting the attack convinces the court either that the law has no permissible objective or, given a valid objective, that there is no “rational basis” for the means selected. Bullock v. Carter, 405 U.S. 134, 142, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970).
In making this type of evaluation, the court may not “second guess” the state legislature. “A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961).
Section 33, on its face, reflects a legislative finding that the public interest requires an expeditious and “complete reorganization of the staff [of the probation and parole section] including dismissals, replacements, transfers, hirings and new management.” This, as the *450majority apparently recognizes,4 is a valid state objective. Purportedly to permit the “flexibility” necessary to accomplish this valid objective, Section 33 suspends the provisions of the merit system as applied to the Probation and Parole Section for a period of approximately one year. It likewise suspends the Secretary’s duty to engage in collective bargaining during the same period. The crucial question is whether these suspensions with respect to this limited segment of the public employees of the State of Delaware is “wholly irrelevant” to the achievement of the legislative objective of forcing an expeditious and complete reorganization of this section.
If there were no rational connection between these suspensions and the reorganization sought, the resulting discrimination between employees of this section and other public employees with similar responsibilities might, indeed, be impermissible. I am unable, however, to join the majority in holding that no such rational connection exists.
The principal features of Delaware’s Merit System are (1) the establishment of tenure and attendant procedural rights designed to protect tenure in the context of dismissals, discipline and demotion, and (2) uniform job classification throughout all departments covered by the system with uniform pay scales for comparable jobs. The majority concludes that suspension of the latter feature of this system “might aid implementation of a reorganization” since it relates to “responsibilities and duties assigned to an occupational position and those particular characteristics will be in a state of flux during the reorganization.” I concur and note further that, under the Merit System regulations, the creation of a new post or a substantial change in the responsibilities of an existing one triggers a procedure requiring review by the State Director of Personnel and a possible appeal to the State Personnel Commission.5
The majority concludes, however, that there is no rational connection between the suspension of tenure and associated rights and the legitimate objective of an expeditious and complete reorganization of this public service unit. I cannot agree. I do not, of course, pass upon the wisdom of the suspension. I can conceive, however, of a set of facts under which a rational legislator might conclude that the need for urgent reorganization would be better served by the suspensions decreed in Section 33.
When an official having ultimate responsibility for the functioning of a particular government unit determines that an employee should be dismissed, demoted for disciplinary reasons, or suspended, he initiates this action, in most instances, by a written notice. Thereafter, the employee has thirty days to file an appeal with the Director of Personnel, who, within an additional thirty day period, schedules a hearing before the State Personnel Commission for some date thereafter “within a reasonable time.” Preparation of the findings and recommendations of the Commission may take an additional fifteen working days. If the action of the supervisory official is sustained, the employee may appeal to the Superior Court within thirty days of being notified of the final action of the Commission. After such an appeal, a citation issues by the clerk of the court for certification of the record. Twenty days are allowed thereafter for the filing of the certified record. Superior Court Rule 72(e). A minimum of sixty-five days is provided thereafter for briefing and argument. Rule 72(g). The decision of the court follows at some point thereafter. Not until that decision does the responsible official know for certain where he stands in terms of personnel planning. *451There are, of course, other aspects to the merit system. In my judgment many fall in the same category on the current record as tenure and uniform job classification. (E. g. provisions for interdepartmental transfer, competitive examinations for position and criteria for determining promotion). Others, such as the maintenance of performance records, do not. I do not, however, construe Section 33 as precluding the maintenance of such records and, in any event, do not believe that the legislative knife must cut with absolute precision when it finds that a comprehensive and interrelated scheme of personnel management conflicts in a substantial way with the accomplishment of a valid state interest. Finally, I do not construe Section 33 as purporting to cut off any recourse at law other than recourse founded upon statutory rights conferred by the merit system. The defendants apparently construe this statute in a similar fashion since they have raised no objection to this proceeding on the grounds of this language in Section 33.
Finally, the plaintiffs have failed to present any facts or arguments suggesting a lack of rational connection between the suspension of Chapter 13 of Title 19 of the Delaware Code and the expeditious and complete reorganization sought. As I read Section 33 and Chapter 13, the primary effect of this suspension is to relieve the Secretary, for a period of a year, from the duty to pursue the collective bargaining process and, in the event of unsuccessful negotiations, to arbitrate before the Department of Labor.6 Again, without disparaging in any way the benefits to be derived from the collective bargaining process, I cannot say it is irrational to free the Secretary of these obligations during a period of substantial flux and change.
In short, the Delaware Legislature wanted an expeditious and complete reorganization of the Probation and Parole Section. In order to give the Secretary the ability to act freely and quickly it temporarily suspended the operation of statutes which it had theretofore adopted as generally applicable state policy. This may have resulted in personal hardship for some, but it did not deny to plaintiffs equal protection of the laws.
II. THE CONTRACT CLAUSE.
Plaintiffs next allege that their employment during a period in which Delaware’s Merit System was applicable to the Probation and Parole Section created contracts between them and the state which “included the rights, duties and obligations encompassed by the State Merit System . . . ” and that the enactment of Section 33 unconstitutionally impaired the obligations of these contracts.7 This argument is without merit.
When a state enters into a contract with a private person the contract rights *452arising thereunder are protected from impairment by Article I, Section 10 of the Constitution. But such “contractual rights” will not be lightly inferred from the enactment of a statute lest legislative flexibility be unduly impaired. “The presumption is that [a statute conferring a benefit] is not intended to create private contractual or vested rights, but merely declares a policy to be pursued until the Legislature shall ordain otherwise.” Dodge v. Board of Education, 302 U.S. 74, 79, 58 S.Ct. 98, 100, 82 L.Ed. 57 (1937). One who asserts a contract arising from a statute has the burden of overcoming that presumption. Rector of Christ Church v. County of Philadelphia, 65 U.S. 300, 24 How. 300, 16 L.Ed. 602 (1860). If a statute provides for the execution of a written contract, Hall v. Wisconsin, 103 U.S. 5, 26 L.Ed. 302 (1880), or if by reference to the term “contract” it clearly contemplates a contractual relationship, Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 58 S.Ct. 443, 82 L.Ed. 685 (1938), the case for application of Article I, Section 10 is clear. But an act which merely fixes salaries of officers creates no contract in their favor and can be altered at will, Butler v. Pennsylvania, 51 U.S. 402, 10 How. 402, 13 L.Ed. 472 (1850). Similarly, an act fixing the term or tenure of a public officer or an employee of a state agency creates no “contract” in the constitutional sense. Dodge v. Board of Education, supra; Crenshaw v. United States, 134 U.S. 99, 10 S.Ct. 431, 33 L.Ed. 825 (1890). An act which creates a uniform regulated way for the state to deal with its employees cannot, in the absence of clear legislative intent to create a contract, bind the legislature not to repeal or amend the statute in futuro. To hold otherwise would be to needlessly impair the power of the sovereign to adapt its law to changing circumstances.
III. THE EX POST FACTO CLAUSE.
Plaintiffs’ contention that Section 33 is unconstitutional as an ex post facto law is also untenable. It was early laid down that an ex post facto law is one which makes criminal and punishes an act which was done before passage of the law and which was innocent when done. Calder v. Bull, 3 U.S. 385, 3 Dall. 386, 1 L.Ed. 648 (1798). Additionally laws which increase punishment, or alter the applicable proof required to convict may be invalid ex post facto laws. See 16A C.J.S. Constitutional Law § 435. The constitutional prohibition against ex post facto law applies only to criminal or penal matters, Galvan v. Press, 347 U.S. 522, 531 n. 4, 74 S.Ct. 737, 98 L.Ed. 911 (1954). While the prohibition cannot be avoided by giving a civil form to provisions which are criminal in effect,8 that principle has no application here. Section 33 cannot fairly be characterized as penal; it punishes no prior act. Cf. Hess v. Hampton, 338 F.Supp. 1141, 1148 (D.D.C.1972) (three judge court).
IV. PROCEDURAL DUE PROCESS.
Plaintiffs assert that the enactment of Section 33 deprived them of property without procedural due process in violation of the Fourteenth Amendment.
While the range of interests protected by the Fourteenth Amendment is wide, cf. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), not every governmental action which affects the economic position of a citizen is a taking of “property” in a constitutional sense. The initial inquiry here then is whether plaintiffs have been denied a “property” interest protected by the Fourteenth Amendment. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).
In Roth, supra, the Supreme Court held that a non-tenured teacher employed pursuant to a year-to-year contract had no “property” interest in his continued employment sufficient to require the state to give him notice and an opportunity to be heard before it refused to renew his contract. If the teacher had been tenured, Slochower v. *453Board of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956), if dismissal had been during the term of a contract, Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952), or if there had been an implied promise of continued employment, Connell v. Higgenbotham, 403 U.S. 207, 91 S.Ct. 1772, 29 L.Ed.2d 418 (1971), the court clearly intimated that a protected property interest would be present.
In Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2717, 33 L.Ed.2d 581 (1972), decided the same day, the Court held that a non-tenured teacher who was summarily dismissed had been denied procedural due process if he could show, as he alleged, that he had an “expectancy” of continued employment based upon a “de facto” tenure system adopted by the state. Sinderman did not hold that a termination of this “expectancy”, as distinguished from termination of employment itself, would constitute a taking of “property” in a constitutional sense. The situation here is quite different than that present in Sinderman; there a single individual was dismissed without a hearing while an alleged system of “de facto” tenure protected him. Here a class of individuals were deprived not of their employment but of a merit system status which had created an expectancy of continued employment. While a legislative determination that one class of employees ought not continue to enjoy a benefit that others continue to enjoy must meet the applicable equal protection test, the legislature need not, before making such a determination, provide notice and an opportunity to be heard to each affected employee.
Sinderman rests upon the finding of a “property” right to continued employment existent because of a reasonable expectancy flowing from a “de facto” tenure system; plaintiffs here assert a “property” right in the expectancy itself. Sinderman did not go so far as to intimate that the relevant state officers in that case could not affect the existence of the “de facto” tenure system— and thus the expectancy — without notice and hearing to affected employees.
Accordingly, I conclude that the adoption of Section 33 did not deprive plaintiffs of “property” as that term is used in the Fourteenth Amendment. Further, I conclude that, any presently existing threat of discharge without notice and an opportunity for a hearing does not constitute a threat of a deprivation of “property” in the constitutional sense. Since Section 33 effectively eliminated the only basis upon which plaintiffs here claim “an expectancy of continued employment,” a case based upon such a threat is controlled by Board of Regents v. Roth, supra.
This does not end the matter, however. Liberally read, the complaint alleges that a combination of the declaration in Section 33 and the subsequent immediate firing of the plaintiffs has severely injured their reputations and ability to pursue their profession. (Compl. flff 11(f), (g)). While the Supreme Court has made it clear that not every state action that affects one’s reputation or ability to secure employment necessarily impairs a protected “liberty” interest so as to require due process procedural protections,9 it seems settled that, in the proper case, invasion of these interests may amount to a deprivation of “liberty” for Fourteenth Amendment purposes. See e.g. Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971); Parker v. Lester, 227 F.2d 708 (9th Cir. 1955); Birnbaum v. Trussell, 371 F.2d 672 (2nd Cir. 1966).
The circumstances of the enactment of Section 33 followed closely by the dismissal of plaintiffs raises an issue as to *454the extent, if any, of an injury to plaintiffs’ reputational interest. This issue cannot properly be resolved on this motion for summary judgment. If the actions of the state impaired a protected interest in liberty, then any dismissal of plaintiffs without notice and hearing would violate the proscriptions of the due process clause.
The state’s assertion that any procedural due process issue raised by the alleged dismissals is moot because those dismissals were rescinded after the commencement of this lawsuit is not a complete answer. Plaintiffs were reinstated pursuant to a restraining order issued by this Court.10 If this action by the state were held to render the case moot and summary judgment were entered in defendants’ favor, the state would be free thereafter to follow a course similar to the one of which plaintiffs here complain. United States v. Concentrated Phosphate Export Assn., Inc., 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968).
. I assume without deciding that Rule !>4(b) would authorize this Court to grant summary judgment on Count I despite the pendency of Counts II and III. Count I attacks the constitutionality of Section 33 and actions taken by defendants thereunder. Count II of the complaint alleges in conelusory fashion that one of the plaintiffs filed a grievance prior to the adoption of Section 33 and has been denied a hearing thereon. Count III alleges that two of the plaintiffs were discharged after the adoption of Section 33 because they are of Latin American descent.
The defendants have conceded that the plaintiff referred to in Count II is entitled to a hearing on his grievance under Delaware law and perhaps that count is now moot. As to Count III, however, there is a material dispute of fact as to whether the discharges referred to therein were racially motivated.
. E. g. the rights of free speech, association, to vote and to migrate, etc.
. E. g. based on race or economic condition, etc.
. Since the majority ultimately concludes that the means selected is wholly irrelevant to this objective, it is naturally led to conclude that there must have been a purpose other than reorganization.
. Regulations 3.0700, 3.0800, 3.0810, 3.0820, 3.0900, 3.0910.
. Chapter 13 includes a provision for determination of bargaining units, a provision for the election of exclusive bargaining representatives, a mandate that “no public employer shall refuse to engage in collective bargaining” (Section 1309), a provision providing for arbitration upon failure to reach a collective bargaining agreement, payroll deduction of dues, a prohibition against strikes, and a provision that “the right of public employees freely to organize . . . for the purpose of collective bargaining shall not be denied.” (Section 1302).
The rights to compel an employer to bargain with a union did not predate the enactment of the National Labor Relations Act. Employees of the federal govment and of state and local governments were specifically exempted from the coverage of that Act. 29 U.S.O. § 152. The primary purpose of Chapter 13 of Title 19, as I read it, is not to provide statutory recognition of the constitutional right to organize, but rather to grant rights to state employees roughly analogous to the collective bargaining rights granted to employees in the private section by the Labor Management Relations Act. Section 33’s suspension should be read as relieving the Secretary of his duty to bargain collectively with a representative of the employees of the Probation and Parole Section and not as an attempt by the legislature to infringe constitutionally protected rights of association.
. The complaint does not allege the existence of express contracts, written or oral, between the plaintiffs and the state.
. E. g. the state may not limit access to a profession or employment as punishment for those who did an act that was legal when done. Cummings v. Missouri, 4 Wall. 277, 71 U.S. 277, 18 L.Ed. 356 (1866).
. “Mere proof, for example, that [plaintiff’s] record of nonretention in one job, taken alone, might make him somewhat less attractive to some other employers would hardly establish the kind of foreclosure of opportunities amounting to a deprivation of ‘liberty.’ Cf. Schware v. Board of Bar Examiners [353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957)].” Board of Regents v. Roth, 408 U.S. 564, 574 n. 13, 92 S.Ct. 2701 at 2708 (1972).
. It was asserted at argument that certain of the plaintiffs were later dismissed pursuant to the provisions of the merit system. It does not appear of record, however, what procedures were followed in these dismissals and I am, therefore, unable to conclude that these employees were properly terminated from employment thus rendering their present claims of injury moot.