*1 3600.5 and 5305 of support the Labor Code finds in substan- tial protective evidence effectuates this legislative state’s policy.
The award is affirmed. Traynor, J., J., Comb, C. J., Peters, Me Mosk, J., Burke, J., J., and Sullivan, concurred. 21, 1967.] A. No. 29515. Bank. Dec.
[L. VOGEL, Respondent, ROBERT S. Plaintiff and v. COUNTY al., Appellants. OF LOS ANGELES et Defendants and *2 County Counsel, Kennedy Maharg, and D. Harold W. John County Lynch, Counsel, and Donald K. Robert C. Byrne, Assistant Deputy County Appel- Counsel, for Defendants and lants. Sperber Wirin, for A. L. Fred Okrand and Laurence R. Respondent. and
Plaintiff W. Blease, A. Richard Jen- Bendieh, Albert M. Coleman Paul N. nings, O’Neil, M. Marshall Krause and Robert W. and Re- as Amici of Plaintiff Halvonik spondent. Curiae on behalf — PETERS, appeal, taxpayer’s J. Defendants judgment enjoining action, summary from from them (Code expending public Proc., 526a), funds admin- Civ. § enforcing paragraph istering or second the oath re- employees by XX quired public section 3 of article Constitution. The trial court held that the second California granted injunction. paragraph invalid, of the oath is and agree We with this determination. pro- XX
Section 3 of article of the California Constitution vides : all and Legislature,
“Members of the
and
officers
employees, executive, legislative, and judicial, except such
inferior
officers and
law exempted,
upon
shall, before
enter
respective
the duties of their
offices,
following
and
take
subscribe the
oath or affirmation:
11‘I, -,
solemnly
(or affirm)
do
swear
sup
that I will
port and defend the Constitution of the United States and the
against
Constitution of the State of
enemies,
California
all
foreign
domestic;
that I will bear true faith
allegi
ance
the Constitution of
States
the Consti
tution of the
of California;
obligation
State
that I take this
freely,
any
purpose
without
mental reservation or
of evasion;
discharge
and faithfully
that I will well
the duties
which I am
to enter.
about
(or
‘And I do further
affirm)
swear
that I do not advo
cate,
I
nor am a member of
party or organization,
political
otherwise,
that now advocates the overthrow of the
Government of the United States or of the State of California
by force or violence or other unlawful means; that within the
years immediately preceding
five
taking
(or
of this oath
affirmation) I
have not been
party
member of
organi
zation, political
otherwise,
that advocated the overthrow of
the Government of the United States or of the State of Cali
fornia
force or violence or other
except
unlawful means
follows: - n .
(If
affiliations,
write in the words “No
*3
Exceptions”)
during
and that
such time as I hold the office
-
(name
of
office)
of
I will not advocate nor become a
any party
member
organization, political
of
or
or otherwise,
that advocates the overthrow of the Government of the United
States or of the State of
California
force or violence or
’
other unlawful means.
oath,
“And no other
declaration,
test,
required
shall be
qualification
any public
as a
employment.
officeor
“ ‘Public
employee’
officer and
every
includes
officer and
State, including
University
of Califor-
nia, every county, city, city and county, district, and
authority, including any department, division, bureau, board,
commission, agency, or instrumentality
of
of the fore-
’’
going.
1952,
Leonard,
court
Pockman v.
21 him then recent adversely to decisions of the answered principal upon Supreme case relied States Court. United City York, Board Education New Adler v. was 380, 517, 72 27 A.L.R.2d 485 S.Ct. 342 U.S. 472]. [96 Supreme Subsequent Court, decisions of the United States recog constitutional doctrines not however, have established holding Adler, in that case has since and the been nized rejected Supreme (Keyishian v. by the States Court. United Regents, 629, 636, 595 L.Ed.2d 87 589, 385 Board U.S. [17 Pockman Accordingly must reexamine v. 675].) S.Ct. we light Leonard, supra, 676, 39 Cal.2d of the recent deci court and the States sions of this Court. although that, settled an individual can It is now well employment claim constitutional to obtain government publicly benefit, any other conferred receive public employment receipt may of such bene not condition upon any impose, it choose to and that the fit terms that government power withhold from its benefits citizens encompass power grant does not a “lesser” such benefits deprivation (Key arbitrary rights. of constitutional Regents, supra, 589, ishian v. 385 U.S. 602 L.Ed. Board [17 Verner, 398, v. 374 U.S. 629, 640, ; 2d 87 S.Ct. Sherbert 675] Speiser 965, 970-971, ; 404-406 v. L.Ed.2d 83 S.Ct. [10 1790] 1468-1469, Randall, 1460, 513, U.S. 518-519 L.Ed.2d 78 357 [2 Washington Township Hospital Bagley Dist., 1332]; v. S.Ct. 499, Cal.Rptr. 421 Fort v. 401, 409] ; 65 504 P.2d Cal.2d [55 Com., Cal.Rptr. 625, 331, Civil Service 334 392 Cal.2d [38 ; Syrek Appeals Unemployment P.2d v. Ins. 385] California Cal.Rptr. Board, 97, ; 354 P.2d Cal.2d [7 629] Diego Dist., Danskin v. San School 28 Cal.2d 545- Unified 885].) P.2d require a seeks to limitation of When the public employment, as a condition of demonstrating practical heavy neces burden bears publicly annexed sity limitation. The conditions for the pur reasonably tend to further conferred must benefit benefit, poses granting outweigh manifestly imposing utility the conditions must Verner, rights. (Sherbert impairment of constitutional 971-974, supra, L.Ed.2d 406-409 Rock, 516, 524 L.Ed.2d 1790] ; Bates v. 361 U.S. Little *4 Washington Township Bagley 486, v. 480, 412] ; 80 S.Ct. Hospital Fort v. Civil Dist., supra, 499, 505-508; 65 Cal.2d 337-338.) Com., supra, 331, 61 Service Cal.2d 22 compelling
Even where purpose present, state on protected restrictions the cherished freedom of association applicable First Amendment made states speci Amendment must drawn Fourteenth be with narrow ficity. First Amendment freedoms are delicate and vulnerable protected possible. and must be wherever When legitimate seeks to limit those freedoms the basis on governmental eliminating purposes, substantial such as sub purposes from service, versives pursued by those cannot be broadly personal
means that stifle fundamental can narrowly liberties when the end be more achieved. Preci regulation required sion so that exercise our most precious unduly except freedoms will be curtailed legitimate governmental objective. extent necessitated Regents, (Keyishian supra, 589, v. Board 385 U.S. 602-603 v. Rus 640-641, 629, 675] ; 87 L.Ed.2d S.Ct. [17 Elfbrandt sell, 11, seq. et 321, 324, 384 U.S. 15 L.Ed.2d 86 S.Ct. [16 Button, 1238] ; 415, N.A.A.C.P. v 371 432-433 U.S. 405, 417-418, ; Tucker, 2d 479, 364 S.Ct. 231, 237, Shelton v. U.S. 328] Bagley ; L.Ed.2d v. Wash S.Ct. 247] Hospital ington Township Dist., supra, 65 Cal.2d 506- Com., supra, 509; Fort v. Civil Service 61 Cal.2d 337- 338.)
Two recent Supreme decisions States They control make it this case. clear that the oath required by paragraph the second section 3 of article XX per California is invalid Constitution because bars public employment type from sons for a of association that proscribed consistently with not be First Amendment rights. paragraph These cases that the is invalid. determine Russell, supra, v. oath had Elfbrandt interpreted by Supreme pro been Court of Arizona to membership knowing and willful in the scribe Communist organization having purposes its Party or other for one of the overthrow of Arizona or of its political knowledge where the had subdivisions purpose. unlawful United States Court rea quasi-political parties groups may soned that or other embrace (Scales legal illegal States, both aims v. United 367 U.S. 782, 801, 1469]) ; L.Ed.2d such a danger in sympathy situation there is a that one with organization, intending accomp aims of the but not lawful might violence, punished lish them his lawful adher constitutionally protected (Noto purposes to lawful and ence
23
836, 842-843,
L.Ed.2d
290, 299-300
States, 367 U.S.
[6
United
nothing
oath
Arizona
in the
that, since
1517]) ;
81
and
S.Ct.
not
who does
one
excluded association
or its construction
Ap
(cf.
purpose
organization’s unlawful
subscribe
992, 84
State,
500
L.Ed.2d
Secretary
378 U.S.
[12
theker v.
of
Russell,
v.
(Elfbrandt
invalid.
1659]),
oath was
S.Ct.
324-325, 86
pp.
pp.
L.Ed.2d at
supra,
at
15-16
384 U.S.
[16
1238].)
S.Ct.
pointed out
Supreme
also
States
Court
The United
in its
share
persons
join
organization but do not
who
pub
pose
as citizens or
activities
threat either
unlawful
membership without
applies to
employees,
lic
that a law which
illegal
organiza
specific
intent
to further the
aims
and rests
infringes
protected freedoms
unnecessarily
tion
on
guilt
a law
by association,
on
and that such
the doctrine of
supra,
pp. 17-
Russell,
at
(Elfbrandt v.
384 U.S.
cannot stand.
pp.
1238].)
19
325-326,
at
86 S.Ct.
L.Ed.2d
[16
Keyishian v.
and followed in
was reaffirmed
Elfbrandt
589.
Regents, supra,
Board
385
There
United
U.S.
of
Peinberg
Supreme
parts of
Law
States
Court held invalid
including
knowing
mem
York,
New
a section which made
prima
such,
bership
Party, as
facie evidence
in the Communist
Again
disqualification
the court held that mere
of teachers.
knowing membership
specific
further
intent
without
constitutionally
not
organization
unlawful aims of an
adequate
governmental positions
basis for exclusion from
knowing
pointed
mere
member
involved. The court
out
ship,
Party’s
knowledge
even with
the Communist
(see
goals,
punishment
unlawful
does
warrant criminal
States, supra,
203,
v.
367
228
L.Ed.2d
Scales United
U.S.
[6
782,
supra,
800-801,
States,
81
Noto v.
367
1469] ;
S.Ct.
United
842,
v.
290,
836,
1517] ;
U.S.
299
81
Yates
L.Ed.2d
S.Ct.
[6
1382,
States,
1356,
354
298,
U.S.
331
L.Ed.2d
77
[1
1064]),
justifying
S.Ct.
finding
or a
moral
disbarment
unfitness
(Sc
232,
Examiners,
v.
Bar
353
Board
U.S.
hware
796, 804-806,
752,
244-246
L.Ed.2d
77 S.Ct.
64 A.L.R.2d
[1
288]).
again pointed
applies
The court
out that a law which
membership
specific
to further
without
intent
organization
unlawful aims of the
rests
doctrine of
on the
guilt by
place
association and that
the doctrine has
‘no
’ ”
p.
(Keyishian
Regents, supra,
v.
at
here.
385 U.S.
Board of
p.
607
675].)
L.Ed.2d at
87 S.Ct.
[17
expression
Supreme
The most recent
of the United States
(November 6,
to be found in Whitehill v.
Court
Elkins
24
1967)
54
L.Ed.2d
U.S.
8.8 S.Ct.
where
[19
184]
relying
Keyishian
court,
on
overly
held
Elfbrandt
required Maryland.
broad
reasons,
an oath
For similar
court
ington.
required by
has held invalid oaths
Florida and Wash
(Cramp
Instruction,
v. Board
Public
368 U.S.
285, 292,
Baggett
L.Ed.2d
275];
Bullitt,
S.Ct.
seq.
377, 382,
et
L.Ed.2d
1316].)
On
Keyishian
Elfbrandt,
basis
Hampshire
the New
recently
(Opin
held that state’s oath invalid
Justices,
ion
First area, Oregon Supreme Amendment Court invali required by dated an oath Higher (Brush that state v. State Board of *6 (Ore.) 269-270). Education 422 P.2d Federal courts have held required by invalid oaths Colorado, Georgia, (Gallagher and Idaho. v. Smiley, F.Supp. 86, 87 [three- judge ; Georgia American court] Assn. Uni Conference of of versity Regents, v. Board F.Supp. Professors of Shepard, ; Heckler v. F.Supp. 841, seq. [same] 845 et [same].) The paragraph second required by of the oath section 3 of article XX of the proscribes California Constitution mem- bership, past, present, future, any party organization in which advocates the overthrow of force, violence means, or other unlawful provision and there is no requiring specific a intent to further the unlawful aims of the organization. proscribes only The oath knowing not member- ship with an intent to purposes further the unlawful of the organization but also membership nonactive and knowing membership accompanied which specific is not such intent. Thus, governmental a teacher or may join executive not an international organization, containing some members from countries, purpose communist obtaining knowledge of in his chosen field because should the communist members positions obtain leadership danger is a there that one of the purposes organization be the overthrow our government. Notwithstanding society our value to and our any knowledge experience gained mem- bership organization in such an notwithstanding seeking innocence of ship in membership, the motive such member- (cid:127) proscribed by is language question. in oath county urges The counsel that the paragraph second of required by oath section of XX article of the California Con- stitution proscribe should be construed only to membership specific the member has the organizations parties when group. aims of the intent further the unlawful this to County Hirschman v. Los connection, he relies P.2d 250 P.2d 698, 702-703 Angeles, 39 Cal.2d validity oath, an court, in to sustain the where this order plaintiffs designate requiring the construed only oath as organizations named “knew” of the those ‘‘ government by force, advocated or which to overthrow knowledge” had held a court to advocate such been action. Hirschman reading of a The into the oath involved person
requirement knowledge was reasonable because expected organizations executing list the oath would not be having objectives if unlawful unlawful he was unaware objectives. presented entirely An situation is different regard specific intent to further the unlawful aims of organization. nothing language There of the second paragraph required by 3 of article XX of of the oath section membership hints that the California Constitution which even is proscribed specific has a intent unless the member prospec- organization, further and a the unlawful aims of the employee considering membership organiza- tive in one of the existing seeking therein, tions described join or an may oppose organization, such an however much he organization espouse only unlawful the lawful aims of the language objectives, unqualified will the face of the jeopardizing oath shrink from his chances for future employment. asking county counsel in effect court to write a support
new condition finds oath, into the one which seeking language of the oath. He is not to construe that *7 language, reason, but to rewrite oath. For this there can application if no here of the rule that the terms of a stat subject reasonably meaning ute are to a consistent with the requirements given of the Constitution the statute will be that meaning rather than another conflict with the Constitution. (Cf. County Gendron, 798, Madera 801 v. Cal.2d of Cal.Rptr. 302, 342, 555].) 382 P.2d 6 A.L.R.3d governmental recently regula- This has court considered impermissible tions which suffered from overbreadth that proscribed protected improperly activities the First subject legitimately regu- Amendment as well as activities language permitting absence therein lation. the regulations properly limitation of activities sub- to those .ject governmental restriction, regulations were held invalid, this because court regulations. cannot rewrite the Washington (Bagley Township v. Hospital Dist., supra, 65 499, 509-510; Cal.2d Fort v. Com., Civil supra, Service 331, 340; Cal.2d City Kinnear v. etc. San Francisco, 61 341, Cal.2d Cal.Rptr. 631, 392P.2d 391].) authority Keyislvian On the v. Regents, supra, Board of Russell, supra, U.S. paragraph it Elfbrandt required must be held that the oath second of section XX article of the California Constitution is Leonard, invalid. Pockman v. the supra, 39 676, holding Cal.2d contrary, is overruled.1 judgment The is affirmed. J., Traynor, Tobriner, J., C. J., Mosk, Burke, J., and Sulli- van, J., concurred. McCOMB, J. I I dissent. would judgment reverse the
the trial court.
questions
presented
now
court
previously
have
passed upon.
been
Darby,
In Steiner v.
“ ‘Oath and Affidavit “ ‘Department- Employment ‘A. Oath of Office or “ ‘I, -, solemnly (or do swear affirm) sup- that I will
port and defend the Constitution of the United States California, Constitution and laws against of the State of all foreign enemies, domestic; that I bear will true faith and allegiance same; obligation that freely, I take this with- out purpose mental evasion; reservation or I faithfully will discharge well and the duties of the office emplojunent on which I am engaged. about to enter or am now Help So Me God. unnecessary 1Tkis conclusion it makes to consider the additional con plaintiff curiae, express opinion thereon, tentions of that and amici and we vague, improper prior oath that it constitutes an restraint on freedoms, improperly the exercise of First Amendment that it shifts the proof loyalty, attainder, burden constitutes bill that the provision hearing process absence of a for a results a denial of due Jaw, pre-empted by law, the oath invades a field federal and that privilege against the oath results a violation of the self-incrimination. *8 “ Activity ‘B. Affidavit re Subversive (or advocate, I affirm) that do not further ‘I do swear member, I been since December am a nor have nor I now organization any political party or of 1941, a member United of the advocates the overthrow of the Government County Angeles, California, of of or Los States, or- State specified that dur- violence, except as follows:-and those County of I ing such time am an officer or as of Angeles, I nor become member Los will not advocate overthrow of party organization advocates the or political California, States, of the Government of the or State or County Angeles, of force or violence. Los “ ‘C. Affidavit re Aliases “- (or 'I or affirm) further that I have never used do swear by -any been known than those listed follows: names other paragraph requiring ‘D’ “Also included in the document employees such officers have been to indicate whether organiza- supported any member of or of some named tions. “September 3, plaintiffs, who employees are county complaints of Los Angeles, seeking injunction filed an .prevent requiring defendants from them to execute an affi-
davit -asset forth above. 5, 1948,
“March the Honorable Clarence M. Hanson, trial judge, plaintiffs’ sustained demurrers to complaints amended without leave to amend, and 9, 1948, on March judgments of dismissal of the actions were judgments Prom these entered. plaintiffs appeal. purported There appeals are also from the sustaining orders plaintiffs’ defendants’ demurrers com- plaints as amended.
(‘Question “May Supervisors the Board County Los of of of Angeles proceed fact-finding with a program under which the (1) employees jurisdiction within its are asked-. officers take an oath allegiance and state Consti- federal tutions and the laws against all enemies of California the United States America, California, the State and county Los Angeles-, (2) as such officers to answer their oath affirmation, (a) whether or not they advocate overthrow the force violence and whether or 7,1941, not since December they have any organizations political parties been members Mat
advocate the overthrow or vio- force lence, sign as well as not to advocate the affidavit government by overthrow and violence or to force *9 organization political a member an or party become which of long person county so so advocates as the is a or officer employee; (b) they to state aliases have ever or used been by; (c) they known and to indicate whether have ever been a directly indirectly supported any member the of of organizations listed in the submitted to them ? affidavit 1‘ question This must be answered the The affirmative. asking question points unerringly mere of the to the answer any loyal, sane citizen of the United States of America would give unequivocal to it. It is an ‘Yes.’ people supreme
“The of the State of California are right protect pre- have the undoubted to themselves and to government they adopted serve the form of have against any they and all enemies whether be domestic or for- right eign. people protect It is not alone the of the to government against form themselves their chosen of sources, duty so, attack from all is their to but it do since Repub- guaranteed people ‘a have to the the United States of (U.S. Const., IV, lic Form of Government’ this state. art. Const, 4; Calif., I, 3.) of art. § § “Every minority society, citizen is member of and the government people form of which the the states several adopted guarantees minority member, have to each as well as republican majority, government form of in his own to the government long passed through form state. Such has since experimental proved satisfying stage. It has to the be most aspirations mankind, to the and at the same time the most practical government yet experience Trial and have devised. government it demonstrated to be the best form of that this system Our has maintained world has ever democratic known. improved preserved processes, people, lib- the condition of promoted encouraged sciences, erty, justice, the arts and peoples. spite changing All this in of an served the needs to the Constitution occasional administrative failure to adhere incompetence design States, due or criminal of someindividual. ‘‘ represen- people acting through duly authorized obligation foregoing have have assumed the tatives power perform and all conditions. plenary under people may exercise limit to which “The extreme undisputed require a citizen power in their found time, even sacrifice life in give maimed, his be his country. his defense of States, page Arver v. United U.S. at “In White, speak- 159], Chief Justice 349, 358, 38 S.Ct. Mr. L.Ed. ing States, says: ‘Finally, Supreme Court of United theory the exaction to conceive what we are unable performance of the of his from citizen duty contributing to supreme defense of the and noble result the nation as the of a war declared and honor of representative body people can be said to great involuntary servitude, in imposition violation Amendment, prohibitions the 13th we are constrained to that effect is refuted conclusion that contention ’ its mere statement. Macintosh, 605, 624 et “Again in United States seq. 1302, 1310, 51 Mr. Justice Suther- discussing question citizen’s land, in individual succinctly States, allegiance of the United states the situation follows: *10 “ Massachusetts, L.Ed. 11, ‘In v. 197 U.S. Jacobson speaking of court, this 643, 651, 25 Ann.Cas. S.Ct. 14th Amend- guaranteed the liberties the individual the to victions, his country fense.” shall conclude the against ment, said: God above his own religious States 143 U.S. Christian “ ‘ pecuniary light ‘When interpretation of 511]), his will ’ and risk . freedom, to take his . of his entire people . and . . he according interests, speaks allegiance the and yet .and the (Church government he without place of the will God chance acknowledging statement, to putting to the even one another the of regard of the compelled, of the and his government, his being ranks religious Holy to his stay allegiance [226] the he shot its means to make decisive test Trinity personal reverence hand. force down it equal right to the will of political army evident, if need v. United in its de- We wishes or the 232, 12 of his which are a duty con- be, his of But, also, nation we are a to the will of God. obedience duty a.nation whose con- survive; with the to Constitution go peace; must templates. as well war as whose safely proceed upon can assumption, forward allegiance unqualified to the nation and submission other, land, and obedience to the laws of the as well those made for peace, made for war as those are not inconsistent with the will ; of God.’ 1‘Clearly, government since the the United has States right (a minority force individual citizen member of society) his to surrender life in his country, any defense attempting perpetuate state in loyalty its to the union has unquestioned right duty to exact from its citizens to all purposes adherence measures which for lesser have preservation repres the sion of its enemies. of our form Therefore, person when a enters the employ any thereof, impliedly of this state or subdivision he rights, certain natural surrenders remain would his if ' just private he only, were a as citizen same he would privileges private surrender certain he to enter if were employment. 1‘ This rule is well stated Mr. Justice Holmes in McAul Mayor City Bedford, etc. New Mass. iffe N.E. great .jurist sitting The then was on the 517]. petition He him Massachusetts. had before a for petitioner policeman mandamus to restore the in to the officeof city New Bedford. Petitioner had been removed mayor hearing after a because had he violated a rule department which read:1 “No member of the to solicit shall be allowed money aid, pretense, any political on for purpose There was also evidence that whatever.” he had been political committee, prohib a member which likewise was ited(Italics jurist’s ours.) logic The unanswerable petitioner proceeded: argued by mayor’s ‘It is finding removal; part did not warrant the that the of the rule invading invalid, petitioner’s right violated was express political opinions; argu . his . . One answer nothing in ment is that there is constitution or ... prevent city attaching statute to from obedience to this making policeman, rule condition officeof part good required. petitioner may conduct have a politics, talk but he has no constitu policeman. employments right-to tional be a There are few *11 agree suspend in consti hire which the servant does not to his by speech rights well as idleness tutional as of free implied (Italics ours.) contract.’ terms his analogous “An rule found in the ease of Christal v. Commission, Cal.App.2d Police P.2d In 416]. petitioners formerly policemen city case who were
n by
sought mandamus to be reinstated
county of
Francisco
San
predicated
ivas
cause of their removal
positions. The
their
in
subpoenaed
appear
they were
before the
upon
fact that
to
produce
private
either
their
jury and refused
to
grand
concerning
questions
their
to answer
assets
records
page 567,
seq.:
said at
et
The court
income.
“
question
appellants,
.
main
involved is whether
‘.
.
police
holding positions
officers,
as
could
while
exercise
testify
privilege
refusing
grand
to
before
constitutional
jury
upon
retaining
the circumstances
still insist
under
.
positions
police
.
officers
. We need not
their
further dis-
privilege
here as it is
the nature of said
conceded
all
cuss
privilege
any
proceed-
that
officers could exercise that
said
here
ing.
only
are concerned
with the result
We
holding
position
privilege,
of such
those
exercise
police
oí
officers,
investigation
sought
in an
which it ivas
to
guilty
officers had been
determine whether such
of criminal
police
their duties as
activities
connection with
officers.
privilege
unmindful
of the constitutional
‘We are not
persons,
mentioned
be exercised
all
above
police
any proceeding,
including
officers, in
civil or crimi
situation,
pertinent questions
As we
when
nal.
...
view
appellants
grand jury,
propounded
before the
Avere
questions
them,
to Avhich
would tend to incriminate
answers
they Aroluntarily
Duty
put
made.
they Avere
to a choice Avhich
Privilege permitted them refuse
required them
answer.
They
privilege, but
exercise the
the exer
answer.
chose to
duty
wholly
Avith
privilege was
inconsistent
cise of such
they
They
had
police
claim that
constitutional
officers.
circumstances, but
it is
right
ansAver under
to refuse to
police
to remain
had no constitutional
certain
duty imposed
clear violation of
officers
the face of their
City]
(McAuliffe Mayor
New Bed-
[etc. of
upon them.
ford,
517].)
Mass. opinion
are of
We
N.E.
dis
duty
cause for
Avould constitute
violation of
such
requiring
specific
rule
such
even
absence of
missal
grand jury,
testimony
or of
give
before the
officers to
unbecoming an officer.”
specific
relating to “conduct
rule
unbecoming
offi
conduct constituted “conduct
That such
cer,” there
no doubt........
can
“ ‘
conception
nothing startling a public
There
to,
-employment
rights
should
his office or
retain
servant’s
forego
his
willingness depend
his
*12
privileges
such,
and
to the extent that the
rights
exercise of
privileges may
performance
be
and
inconsistent with the
of
employment.
his office
the duties of
One of
most cher-
the
guaranteed by
rights
ished
the Constitution is
of
freedom
speech, yet
police
of
no one would maintain
a
officer
fully
right
without violating
could
imposed upon
exercise
the duties
acceptance
him
employment
the
of his
as a
right
speech
police
The
of freedom of
might
officer.
be relied
upon by police
persons
a
officer
had
who
disclosed to
conduct-
establishment,
ing
illegal
concerning
plan
information
the
police department
upon
to conduct a raid
such estab-
lishment,
furnishing
but the
of such
would be
information
police
inconsistent
and violative of the duties of such
Such conduct would constitute cause
officers.
for dismissal
any specific
particular subject,
with or without
on the
rule
adoption
providing
the
the
a
and
event of
of
rule
for dis-
making
disclosure,
of
such
missal
officer
claim that
the
right
such rule violated
constitutional
of the officers
’
clearly
would
untenable.
City
Haymam
Angeles,
v.
Los
“In
“Finally,
Chief Justice
speaking
for
Party
Peek,
nist
P.2d
Cal.2d
follows,
California,
the rule as
states
page 551:
1‘ ‘
however,
doubt,
is no
that the remainder of section
There
Legislature’s power
prescribe
within
tests
2540.4 comes
participation
primary
This
conditions
elections.
power certainly
adopt
designed
includes
tests
advocating
political parties
exclude those
overthrow the
government by
parties carrying
or those
on a
means
unlawful
*13
violence,
program sabotage,
and
or treason.
sedition
of
force
groups
Such
constitute
immediate threat to the function
ing
including
institutions,
of our
continued
of
the
exercise
the
suffrage.
power
of
Since it is within the
the
of
state
groups
speech
to such
restrict even the
of
and
free
press (see,
Whitney
California,
free
example,
v.
274 U.S.
1095,
Stromberg
California,
357
L.Ed.
“There is rule or degree plaintiffs’ rights political slightest in the affects religious simply performing belief belief. are Defendants making employees as to duty by proper inquiry their of their employer, loyalty people of to their the State nothing affidavit which There the oath or California. right. If plaintiffs requires to surrender government of they the overthrow of the desire to advocate county States, California, State of or the the United all means Angeles, do so lawful Los public employment. It needs resigning after from their first *14 employer, argument support to the thesis that their California, wait until after an people the State of need not making inquiry employee some overt act before has committed occupy position Cer- fitness to which he holds. as to his tainly justified perfectly private employer would be is clear that a employee questioning requiring an to submit to in leaving place employment in before his and examination property employee stealing was ascertain whether the order to obviously his might question employer, he and of employee destroy the take or to whether he intended to as people is employed employer’s property. A servant standard, people, higher employer, and his held to an even duty through their authorized only may, but it is their for the proper inquiry to his fitness representatives to make and acts and his intentions occupies to position which he people. loyalty to his to relative a that organizations require and other “Many fraternal obligation loyalty neophyte assume an of prior to the attaining America his States of to member- the United ship organization. It questioned, the reasonably never been nor has questioned organization could it be that the had a prior obligation accepting appli- such an to exact membership. rights cant for None of his constitutional is requirement. example, such For invaded no one would prospective claiming a think of member of the Benevolent having and Protective Order of Elks was his constitutional rights order, admitting violated such before a mem- because ber, requires obligation loyal take he an government of the United States of America. private organization lawfully require loyalty
“If a can a question people require obligation, without an such seeking obligation person public posi- a from to remain a prerequisites tion with its attendant and manifold benefits. obligation required “The oath of defendants is substan tially foreign person required is the same as that which a born becoming honor, to take and before entitled to benefits privileges being a naturalized citizen of the United States of America.* a Since naturalized citizen has the same excep born, and a duties as native with certain constitutional tions, any logical why there is not a native born citizen reason object assuming obligation. should a similar Hanson, judge,
“The the trial Honorable Clarence M. sustaining opinion amend, without filed demurrers leave appropriate opinion in which we concur. Such changes adopted part It of this decision. reads made thus: “ primary question presented, ‘The viewed its broadest aspect, supervisors may require is whether the board of jurisdiction (1) officers under its to take an allegiance oath Constitutions, to the federal and state against the laws of all California as enemies the United require state, (2) States and employees such officers and questions upon certain answer their oath allegiance]. touch the oath [of plaintiff ‘The No. 534177 cause civil service County Angeles. alleges of Los in her She complaint is not amended that she a member of the Commu- Party organizations ques- nist or of listed on the *“ (Title (1942) Nationality), 8 U.S.C.A. Stats. Aliens and p. 742, § 735.” *15 avers, however, submitted to her. She
tionnaire requirement that thereby sought imposed upon her, i.e., to be that respond form take the oath tendered and she under questionnaire submitted, oath violates her constitu- rights tional as an American citizen. “ plaintiffs allege ‘The in cause No. in their fifteen complaint they employees that are civil amended service Angeles. They county the requirement of Los sought likewise aver that imposed upon them, i.e., they to be respond form tendered and under oath take the oath questionnaire submitted, violates their constitutional rights American citizens. “ question, part form of the oath here a of the ‘The (Here is questionnaire, reads as follows: recited the oath above forth.) set . . . “ ‘ narrating allegations Without in detail two complaints say they allege, amended will suffice to every way, almost conceivable the defendant board power impose requirements agents its are without manner, application question; that method and of the legal power, power be, if there is without sanction viola- plaintiffs statutory tive of the of the county required defendant all of the to sub- questionnaire question. mit to the and take the oath in “ super- ‘In this it is well established that the state board Constitution, laws and visors under our the state the charter county, powers county, except of the exercises the specifically it is otherwise limited. The board is vested with power appoint county employees, all officers and provided respect However, otherwise the charter. service, appointments to the classified must be made from eligible the so-called civil service list. “ provisions ‘The civil service charter authorize the prescribe, civil service commission amend and enforce service, investigations rules for the classified ing to make concern- rules, and effect its efficiency the enforcement and the empowered Moreover, of the service. ject the commission is to re- placed upon wish candidates who to be civil service rolls up requirements where fail to measure to the reasonable drop per- and likewise it is the commission authorized to eligible list, sons who have attained the for like reasons. appointing power discharge ‘In case wishes to civil employee given and, service the reasons therefor must be if thereupon, so desires is entitled he to hear- *16 ing If the commission before the commission. finds that the sufficient, despite discharge void, not the any- reasons are is thing appointing power the can do about it. “ said, ‘Prom what far been is has so it self-evident that agents discharge neither the employee its can a board nor civil service any for cause that the civil service commission Accordingly, finds insufficient. if in view of the the board of agents supervisors, appointing or its as the power, a civil employee discharged ground service should be on the sole employee “subversive,” discharge attempt the is the or discharge ground if, is on hearing, on of no effect the commissionholds otherwise. “ powers ‘What then agents are the of the board and its respect laying good or discharge a bad for a foundation employee1?Clearly, power—whether an appointing the it public—is private entitled, subject by be or to a review the commission, discharge for cause, and, cause or no as a cor investigate ollary, to seesfit as it as a for such cause, basis save except by itas is restricted law. “ provides person ‘Section 41 charter of the that “no in appointed, classified . . shall the removed or in service . or reduced or any way against favored or discriminated be- political religious opinions cause his or or affiliations.” from this Aside restriction there are restrictions appointing power or charter law on the of the board or its agents appointing in discharging employees, or civil service except as noted. self-evident, then, any ‘It from seems that aside restrain- ing provision, supervisors the board of itself through agents duly may investigate its or authorized to its antecedents, character, heart’s content the view- points employees, including and the affiliations of its service, investigation long in civil those so as the does not religious political opinions touch or affiliations employee. Moreover, it seem to follow that would so long impinge upon as the these it restrictions, board does private employer, demand its may, like response questionnaire oath, chooses, if it a to a as a basis part discharge. person in his fact that a whole for The him civil not insulate from the lawful on the service rolls does appointing power him to actions of the or enable restrict them, except specifically granted him rights for the provisions any private employer charter. Like county employees unquestioned demand may question its loyalty, lays down, except in the manner it as restricted private, law. sure, employer, employer, To be or a than necessary, now and then demand more the view of courts, fact, individuals concerned or of the but that if it be ground slightest fact, is not a interference on the part (United the courts. Public Workers v. Mitchell (1947) [754], 556].) 111 There then action, remains to consider whether the alleged action, agents, threatened the board or its vio rights plaintiffs lates the under the federal or the state plaintiffs contend that their Constitutions. respect provisions are violated view of the of the First and Fourteenth Amendments federal Constitution and the cognate provisions of our state Constitution. “ ‘Shortly stated, plaintiffs contend that the action of requiring agents the board its to take give propounded and the oath answer to the questionnaire, *17 oath, employee’s rights guaranteed an under violates to him and under the federal state Constitutions. These rights, the by plaintiffs, as set forth the are as follows: “ 1 may speak (1) Every freely citizen . . . his senti being responsible subjects, on all ments the abuse that (California right Constitution, 9.) .” I, . . Article Section “ 1(2) right people freely “The shall have the to assemble together good, consult for to the common to instruct petition Representatives, Legislature and to the for redress of (Calif. 10.) grievances.” Const., I,Art. Sec. “ ‘ (3) any “No State shall make or enforce law which abridge privileges or shall immunities of the citizens the States; any deprive any person shall State life, United nor property, process due liberty law; deny or without nor to jurisdiction equal any person protection its within of the (14th Const.) Amendment, laws.” “ viewing mantle ‘In the constitutional thrown around an important individual it is to remember that the mantle is a absolute, qualified. safeguard, not relative but federal Our guarantee provisions, and state constitutional of assembly, which freedom speech opinion, press, freedom of the freedom completely to do are not licenses one chooseswith- fellow, possesses exactly regard out to other who same purports pursue granted When to liberties. one liberties he to Constitution needs remember the other fellow and, liberty is lias equal more, has what he liberties to re- speech opinion right listen to or fuse to another’s to assembly. yield him Conceivably, to his own refuse opinion entirely proper to person may that is is be of the stop light, city streets at 80 miles an through a or on drive setting up ordinance, so, even con- but hour in violation of prove provisions So, will ill-advised. as a defense stitutional the 14th Amendment a defense to too, believe that one sabotage it, but or are subversive acts that provision against quickly will find that the constitutional one treason is modified, least, by not cut down or in the the First provision the federal or state con- Amendment or stitutions. other “ requirements manner, then, ‘In as laid down what do the board, applied agents, impinge con- or as its on the plaintiffs officer or em- stitutional or other jurisdiction ployee subject general of the board? Some them, say plaintiffs, of the objection but not all of do have no require support an oath that would them to question Constitution, state, but that the oatli in federal and goes and, consequently, further violates their constitutional rights. oath, employee only true, it is calls abjure support Constitution, federal, state but to foreign, government, enemies both domestic and but wrong true, is, even if that be it what is "withthat these Moreover, provision States ? where is directly indirectly prohibits or the board from de- manding that an subscribe the oath ? The answer there, is, subject. none, and therefore no more need said on that questionnaire. requires ‘We come next to the It that the employee, taking submitted, aside from the oath answer under (1) oath whether or not he advocates the overthrow' of the government and whether not, 1, 1941, since December he any political party organization has been member of advocates violence; (2) the overthrow of the force or the name names "whichhe has used or been *18 (3) by; known whether or not he has been a member of or directly indirectly supported any organizations the questionnaire. listed on the “ respect particular questions ‘With the to these in the plaintiffs questionnaire, they the contend con- violate their rights, that, stitutional in person- whether do or do not ally the advocate overthrow of the force or belong violence, belong organizations do not to with such provisions objectives, the of the two sustain them constitutions argument in their refusal to answer. This the crux is plaintiffs aspect in Accordingly, case. we proceed now at once a determination of the issue thus made. “ ago year ‘A Court of the United States answered these identical in contentions the ease of United Mitchell, Workers v.
Public U.S. 75 509 [754], L.Ed. 556], Accordingly we may 67 S.Ct. well now turn to that de light it very problem cision for the throws on the similar posed is before us. case, case In that instituted employees, here, civil service as is the case it was contended federal so-called Hatch Act Stats. U.S.C. 61h], prohibiting federal civil employees classified § service taking “any part political from management active or in political campaigns,” violated their constitutional prohibited that it them doing very thing from which an ordinary impunity. citizen could do with Accordingly, in here, plaintiffs sought declaratory that ease relief and injunction. holding was constitutional, the act pointed early the court out that as as 1882 the court had held entirely proper Congress prohibit that was party ac employees tivity by federal in the classified service. The court actively partisan governmental said: The conviction that an personnel good deepened threatens has administration since (196 (1882) Ex Parte Curtis Congress 381]) responsible . and the . . President are If, judgment, efficient service. in their efficiency for an may by prohibiting participation best obtained active employees politics party workers, classified officersor we objection pres ... see no to declare that the supposed political activity beyond power ent evils are Congress impotent to redress would leave Nation many with deal what men is a sincere believe material threat system. to the democratic “ 1 political “. determination the extent to which . . The regulated shall be activities of lies Congress. primarily only will when interfere such Courts beyond general existing conception passes regulation governmental power . . . “ 1 judgment in the servants “When actions civil competency of integrity and Congress menace the danger adequate such service, legislation forestall required. Hatch Act maintain its usefulness say with such a Congress need. We cannot to this answer of unconstitutional.”. . background are . those restrictions just quoted ... it seems clear ‘In the decisions view of
41
agents,
that the acts
they go
defendant
of the
Board and its
whether
by
plaintiffs
not,
extent claimed
are
scope
power
within the
of the
in
board and are
no sense
appointing power
unconstitutional. Whether the
not
will or will
discharge
employees
by
plaintiffs,
as claimed
for
causes of the character enumerated, and whether the civil
uphold
service Commission will
such
speculate
discharges,
any,
such
if
on
causes,
are not
matters
which this Court
”
adjudicate
at this time. . . .’
Accordingly,
Appeal
the District Court of
affirmed the
judgment
superior
court
favor of defendants. Subse-
quently,
Supreme
petition
Court of California denied a
hearing
January 10,1949.
on
In Garner v.
Works,
Cal.App.2d
Board
Public
98
958],1
City
Angeles
P.2d
adopted
[220
Los
a resolution
requiring
employees
its officers and
take an
oath and exe
cute an
required
affidavit similar
County
to those
Angeles
Los
in the Steiner
ease. Seventeen
city refused
comply
with the ordinance and
dis
were
charged. They
petitions
filed consolidated
for writ of man
directing
date
payment
reinstatement and
of salaries from the
discharge.
date of their
superior
peti
court denied the
tion,
appeal
and on
Appeal said,
District Court of
at
pages 495-499:
“The issues
involved
this ease have been set forth and
disposed
Darby
Steiner v.
(1948)
whether were or pertinent were not Communists were and proper; therefore pro- contumacious witnesses were not Rights tected the Bill of answering. from 1Opinion prepared Drapeau by Presiding Justice and concurred Justice White Justice Doran. Regents “L’Hommedieu v. Board University State York, App.Div. New N.Y.S.2d 443]. “In that Court, Appellate case the Division,
Third Department, of the State of New York held that a
provides
statute which
for dismissal from the
school
system
organizations
of members of subversive
does not violate
*20
process
law,
due
infringe upon
nor does it
the freedoms of
speech, press,
assembly.
or
“In that case it is said:
1‘ ‘
right
There is no
any
constitutional
a teacher
more
than
professions.
public
there is to be a
officialor a member of
right
one has a
No
to advocate the
overthrow of
force
violence. The courts
have held
again
time and
guaranteed
time
that the freedoms
by the Constitution
yield
are not absolute but must
to the
public
(Page
welfare.
N.Y.S.2d].)
451
. . .
[95
“
important
‘The
qualification
most
loyalty
of a teacher is
government.
to our
necessarily
It
disqualification
follows that
is advocacy
government.
of the overthrow of that
The statute
under
dealing
review is a
public employment
law
public
teachers in
privilege
our
schools. To avail
oneself
teaching
qualifications
certain
possessed,
must be
certain
rights renounced. This is not an unconstitutional classifica-
cases.)
(Citing
tion.
‘ ‘‘
loyalty
When it comesto
government,
to our
the affirma-
tion
bership
loyalty,
disloyalty,
the denial of
renunciation of mem-
organizations advocating
govern-
overthrow of our
ment
subscribing
tenets,
upheld
to subversive
all have been
qualifications
public employment
holding
or of
office
organizations
availing
privileges.
statutory
themselves of
(Citing cases.) (Pages
N.Y.S.2d].)
452-453
. . .
[95
“ ‘
Constitution,’’
“The
Supreme
said the United States
Court in United
ex
States
rel. Milwaukee Social Democratic
Burleson,
Pub.
v.Co.
414
704, 710,
U.S.
L.Ed.
[65
adopted
preserve
S.Ct.
“was
government,
our
355]
protecting
to serve as a
screen
who,
for those
while
claiming
privileges,
destroy
seek
contemporary
its
it.” A
statement of
principle
the same
in Barksy
is found
v. United
States,
may require or disavowal of beliefs or disclosure argument may exten- ions, acts. The be followed without overt concurring dissenting opinion sively in of Mr. Justice Douds, supra. American Assn. Jackson Communications present question is in this case. The ordinance “That not provides call beliefs. It under consideration does not for not he is ever was a member of the must aver whether or or one party Association; Political or the Communist Communist years within five advocated the overthrow he has not by violence, means; unlawful force, or that he any group, society, not and has not been a member of as- sociation, organization, party which advises or teaches government by and that means; overthrow the such while city belong service of the he will to or become he is a member of group, such such or advocate teach sub- versive doctrines. right people “The of the State of California have state, allegiance their declare destroy- enemies, not advocate or believe are not and do its force,
ing
by
means,
violence or unlawful
is not tram-
the state
infringed,
provision, by
meled,
or denied
ordinance
justice,
natural
common sense.
before
adopted
state
is well
court,
a subdivision of
this
timely
proper
legislative power and
exercise
within the
’’
thereof.
Appeal
denying
affirmed
order
The District Court
Supreme
application for writ of mandate. The
petitioners’
petition
hearing in
for
denied a
of California
13,1950.
September
case on
granted
the United
Thereafter the
Court of
States
after
certiorari,
opinion,
set-
a writ
followed
affidavit, reads:
portions of
oath and
ting forth
relevant
pro-
violative
attack the ordinance as
“Petitioners
that ‘No
1, the Federal Constitution
vision of Art.
§
post
ex
pass any
Attainder,
Bill
. .
[or]
State shall .
de-
They
that the ordinance
facto
. . .’
also contend
Law .
assembly
speech
prives
of freedom of
them
grievances.
petition
redress of
*23
“Petitioners
pro-
have assumed that
oath and
affidavit
present
visions of the ordinance
similar constitutional con-
together.
siderations and stand or fall
We think, however,
separate disposition
that
is indicated.
“1. The affidavit
City
raises
issue whether the
of Los
Angeles
constitutionally
require
forbidden
to
its em-
ployees
past
present membership
disclose their
the Com-
Party
munist
or the Communist Political Association. Not
question
us
city may
before
is the
whether the
determine that
employee’s
an
political
justifies
disclosure of such
affiliation
discharge.
his
municipal
“We think
employer
that a
is not disabled be-
agency
inquiring
cause it is an
of the State from
its em-
ployees
may prove
as to matters that
relevant to their fitness
suitability
may
service. Past conduct
well
present
past loyalty
relate
relationship
fitness;
to
have
reasonable
present
commonly
to
and future trust. Both are
inquired
determining
high
into
fitness for both
and low
positions
private
industry
pub-
are not
less relevant
employment.
requirement
lic
The affidavit
is valid.
“2. In
validity
our view the
of the oath turns
the na
ture
(1941)
of the Charter amendment
and the relation of the
(1948)
ordinance
to this
amendment. Immaterial here is
opinion might
provision
we
have as
the Charter
to
insofar as it
purported
five-year
apply retrospectively
period prior
to
for a
to its effective date. We assume that under the Federal Con
stitution the Charter amendment is valid
to
extent
it
city’s public
from
persons
bars
who, subsequent
service
adoption
advise, advocate,
to its
in 1941,
or teach the violent
overthrow of the Government or who are or become affiliated
any group doing
provisions
operating
pro
so. The
thus
spectively
regulation
protect
were a reasonable
munici
pal
by establishing
employment qualification
service
loyalty to
State
and the United States.
Gerende v.
Cf.
Supervisors
Board
(1951)
Elections
bers Lovett judicial 303, . United States v. them without a trial . . .’ 1252, 1259, 1073], (1946) 315 L.Ed. 66 328 U.S. S.Ct. [90 opinion prerequisite. concurring a Punishment See Lovett, supra (328 318, pp. 324 v. U.S. at United States [90 1073]). 1264, legislative 66 1261, S.Ct. Whether action L.Ed. curtailing privilege enjoyed punish- previously amounts a depends upon attending ment ‘the circumstances and the ’ Cummings deprivation. (1867) v. causes of the Missouri 4 356, 362], 277, 320 L.Ed. We are unable Wall. U.S.] [18 [71 punishment imposed general regula- a conclude that merely qualification provides standards of tion which eligibility employment. for “Cummings 4 (1867) v. Missouri Wall. 277 U.S.] [71 parte 4 356], (1867) Ex Garland Wall. [71 L.Ed. [18 leading ap 366], Court L.Ed. eases 333 [18 U.S.] against prohibitions bills plying the federal against legis guarantees such recognized that the attainder, legislative preclude definition of lation were not intended to
48 qualification public professional standards employ- Carefully distinguishing ment. legislative instance ‘in- punishment’ fliction of from the power exercise ‘the ’ Congress prescribe qualifications, the Court said in Gar- legislature may undoubtedly land’s Case: ‘The prescribe qualifications office,to conform, for the which he must as it may, prescribe it has jurisdiction, qualifica- where exclusive ’ pursuit ordinary tions for the 4 avocations of life. pp. p. 370], Wall. at 380 L.Ed. at See also [71 U.S.] [18 Cummings supra, v. Missouri, 4 pp. 318, Wall at 319 [71 U.S.] 361, 362]). L.Ed. This doctrine was in Dent [18 reaffirmed Virginia v. (1889) West 129 U.S. L.Ed. 9 S.Ct. 231], in Field, which Mr. Justice who had written the Cum- mings opinions, and Garland wrote for a unanimous Court upholding elevating qualification a statute standards of practice medicine. And in Hawker (1898) v. New York 573], upheld U.S. L.Ed. 18 S.Ct. forbidding practice statute by any person medicine felony. who had been convicted of Both Dent and Hawker distinguished Cummings inapplic- and Garland Cases legislature able qualifications when the establishes reasonable pursuit for a vocational necessary disquali- with the effect of fying persons engaged presently some in it. rely “Petitioners heavily States Lovett (1946) which a legislative effectively separating act certain servants positions from their was held to abe bill of attainder. Unlike provisions the petitioners of the Charter and under ordinance removed, were statute the Lovett Case did general prospectively operative not declare standards *25 qualification eligibility public employment. Bather, by prohibited any payment compensa- its further terms employees. tion to named individual Under these circum- against stances, legislative background, viewed the statute imposed penalties judicial was held to have trial. without impressed by “Nor we are contention that the oath de process negation nies due because its is not limited to affilia organizations tions with known to the to be in the proscribed suppose class. We have reason to that the oath is Angeles City or will be construed Los Cali affecting adversely persons fornia courts during as those who proscribed organization their affiliation with a were innocent purpose, of its or those severed their any who relations with organization such when apparent, its character became organizations were affiliated with which at those who one time during period or another covered the ordinance were engaged proscribed activity but not at the time of affiant's implicit affiliation.1We assume that scienter is each clause nothing negative city of the oath. As the has done this in terpretation, granted we take for that the ordinance will be raising problems so read to avoid difficult constitutional application present. Washing which other would Fox v. (1915) 573, ton 383], U.S. L.Ed. 35 S.Ct. [59 appears correspondence It from city of record between the petitioners although city inquiry welcomed as to its oath, interpretation upon construction of the proceeded we explicitly have not have been called to the petitioners attention of before their refusal. We assume that interpretation if our City of the oath is correct the of Los Angeles give petitioners will those who heretofore refused to opportunity take the sume their interpreted oath to take it as and re employment.” (Garner v. Board Public Works Angeles, Los 716, 719-724 1322- of 1325, 909].) 71 S.Ct. Supreme The Court thus reached the same conclusion as Appeal the District Court had reached. Keyishian In Regents, Board 385 U.S. 623-625 629, 652-653, 675], L.Ed.2d Clark, 87 S.Ct. Mr. Justice dissenting opinion Harlan, concurred in Mr. Justice Mr. Justice Stewart, White, and Mr. said: “This Justice again
has
and again,
1951, approved procedures
since at least
either identical
ator
the least similar
ones the Court
today. In
condemns
v. Board
Garner
Public
Los
Works
Angeles, supra,
public employer
we held
pre-
that a
was not
cluded, simply
agency
it was an
State,
because
‘from
inquiring
of its
may prove
to matters
rele-
’
vant to
suitability
their fitness and
for the
service.
p. 720,
p.
U.S. at
50
language
practically
statement
the same
the Starbuck
here
type
inquiry
as was made
and the affidavit reflects the same
1952,
in
condemned here. Then in
in Adler
the old certificate
Education,
517,
485
72
v. Board
342
S.Ct.
U.S.
[96
472], supra,
passed
380, 27 A.L.R.2d
this Court
the iden
It, too,
declaratory judg
tical statute condemned here.
was a
However,
ment action—as
this ease.
there the issues were
abstractly
not so
framed. Our late Brother Minton wrote for
the Court:
"
‘A
area in a
teacher works
sensitive
school-room.
shapes
young
minds
There he
the attitude
toward
so
ciety
this,
in which
has a vital concern.
live.
state
preserve
integrity
It
of the schools. That the school
must
right
duty
officials,
authorities have the
screen the
maintain
in
teachers, and
as to
fitness to
part
tegrity
society,
as a
cannot be
of the schools
ordered
’
p.
p. 496,
At
again
again
Shelton
247],
231, 81
in which
L.Ed.2d
S.Ct.
both
364 U.S.
approval
quoted with
and Garner
and Beilan were
Adler
Cramp
manner;
in a like
likewise
and Lerner
cited
were
(1961)
Instruction
L.Ed.2d
Public
Board
approval;
quoted
and,
twice with
Adler was
discharged
where the
was
for re-
in a
field
related
being
questions
loyalty after
ordered
as to his
fusal to answer
eases which
approval all of the
with
rejected, i.e.,
cited
so,
to do
the Court
*27
Garner, Adler, Beilan
says have been
today it
Angeles County (1960) 362 U.S.
Los
Nelson v.
and Lerner.
1
Konigsberg v. State
Later
S.Ct.
L.Ed.2d
527].
[4
997],
like-
L.Ed.2d
(1961)
Bar
U.S.
And
Beilan and Garner.
approval both
wise cited with
Anastaplo (1961) 366
L.Ed.
U.S.
In re
our decision
2d
Lerner
all re-
Garner,
were
Beilan and
81 S.Ct.
my
ago
Brother White re-
only
Terms
Finally,
two
ferred to.
approval
quoted Adler with
in turn
upon Cramp which
lied
(1964) 377
Baggett v. Bullitt
See
twice.
2d
FRANCES WIRTA et TRANSIT DISTRICT ALAMEDA-CONTRA COSTA Appellants. al., et Defendants