*1 702; King (2d) 354 P. Jerke, Kerlik v. (2d) Wn. 338 P. 338. Molthan, (2d) 115, v. (2d) Wn. fact.
There as to material Appellant’s was no dispute recovery. bars contributory negligence on except are awarded costs both appeals Respondents items either no taxation of duplicate that there shall be or the record. briefs Affirmed. April 20, En Banc. 34451.
[No. 1961.] et al., L. Nostrand Respondents, Herbert Howard et al., Appellants.* Little *Reported P. in 361
:i General, Herbert Attorney Fuller, H. Assistant, Chief Malone, Timothy R. for Assistant, appellants. Hoague '’'Francis and Solie M. for Ringold, respondents. J. This case was originally decided this Donworth, 29, 1959, and was then January .court entitled Nostrand (2d) reported 460, Our is 53 Wn. Balmer. decision (2d) preface to the 10, P. to which reference made for a present opinion. appealed
Thereafter, the
Court
case was
argued
being
and,
consid-
of the United States
after
May
per
opinion
2,
court,
curiam
was filed
ered
(two
dissenting),
reported
justices
in 362U. S.
which
474,
892,
4 Ed.
The mandate of the judgment, 1959, entered March 1960, directed that our proceedings further and the cause vacated remanded per opinion. curiam not inconsistent with the Accordingly, 17, 1960, entered court, order June judgment of March and set the cause vacated its September, 1960, en banc at session for further its following a consideration of issues: plaintiffs trial raised, either Whether they claim court, court or in this should be afforded *3 hearing explain or refusal to take the such defend their oath; and properly claim this court,
2. If such is whether Washington pertinent do or statutes state of hearing; do not them afford such hearing,
3. If these statutes do not afford them such a thereby process plaintiffs due of law whether denied of the United States or the consti- under the constitution Washington. of the state of tution opinion in convenience,
For we shall this refer to professors,” plaintiffs “the and to Nostrand Savelle as regents.” as “the state officers defendant hearing September 21, 1960, coun- was held At this which argu- presented parties oral submitted briefs sel for bearing on issues. ments these considering referred we wish to, the issues above
Before Supreme opinion per Court, curiam to refer to the remanding the case to this court the reasons which are stated. helpful in mind it will think
We has been remanded this case under which circumstances quote per opin- and, therefore, this court we curiam (omitting only ion in full Ross, reference to Seattle v. (2d) (1959), 54 Wn. 344 P. referred to be- low1) :
“Washington requires every public employee to sub person scribe to an oath that he ‘not a subversive or a Party any member of the or Communist subversive or ganization, foreign engages or which otherwise, or ad vocates, abets, advises, or teaches the overthrow, destruc govern tion or alteration of the form constitutional Washington, ment of the States, United State of any political or of subdivision of either of revo them, ; ’(cid:127) lution, force or . . . Refusal do so to ‘on violence any grounds shall be cause immediate termination of employee’s employment.’ “Appellants brought declaratory judgment action claiming other claims is that no due'process the Act to be violative of as well as provisions of the Federal Constitution. One of the at which the afforded explain can or defend his refusal to take oath. Supreme Washington pass point. Court' did hot on this Attorney suggests prior General in his brief that Washing- here, decision thereon ‘the Court of given opportunity ton should be first consider pass light upon’ . it. . . In the of these circumstances say Washington we cannot how the Court of would hearing point. construe this statute on declaratory case, “The nature of the the fact that supplements previous statute here under attack State’s statutory raising questions concerning provisions ap- plicability principle comity latter, .of the and the regard interpreta- should be afforded the State with bring laws, tion of its own us to the conclusion that we must opinion, Ross, 1In our our .recent decision the case of Seattle v. supra, bearing has no on the issues involved case. The *4 dissenting opinion in the Mr. reasons therefor are stated Justice (concurred Black). Douglas Furthermore, in Mr. Justice the Seattle defined a criminal offense of which Ross was convicted. The ordinance purely proceeding involving public case a civil the of a instant is employment signing employee to continue his without' the affidavit re prescribes presumption quired by the act before us no statute. The person. to take the oath His that an who fails is a subversive required question ground in to answer the affidavit form refusal public incompetency discharge from either for or in for reliability.' or doubtful trust and subordination
115
v.
remand the case for further consideration. Cf. Williams
L.
814, 99
Ed.
Ct.
(1955),
We construed erroneously been they tion because this court did commentators that some news implying remand in and that duty not do its full the premises, had failed necessary negligently made because we was hearing. decide all the on the first questions us decision, but, do read the curiam since the We not so per advised, has take this opportunity been so we wish to public below) (as fully to record the fact will more appear that every in our issue original opinion justiciable we decided which was then before us for consideration.
I.
question,
In order
determine whether
constitutional
which is the
Court’s
was
subject
Supreme
opinion,
Georgia,
v.
to which our
2We
the case of Williams
have examined
per
opinion
Supreme
attention
called in
curiam
Court.
has been
majority
supreme
opinion in
that
remanded it to the
court
case
state
extraordinary
new
of a defendant
to reconsider
motion for
trial
degree
paragraph
opinion
convicted of first
murder. The final
remanding
Supreme
as follows:
Court’s reasons
for
the case
stated
extraordinary,
particularly
in view of
“The
of this case are
facts
County
yellow
judge of
tickets
the Fulton
the use
white
Supreme
Superior
year
Court
Court almost
after
the State’s own
Avery
Georgia,
practice
[Avery
S.
had
v.
345 U.
condemned
important
another
factor
case. That
life is at stake is
course
559]
capital
creating
extraordinary
The difference between
situation.
non-capital
offenses
in law
diverse
basis
differentiation
orderly
ways
that
think
which the distinction becomes relevant. We
requires
procedure
for
Court
recon-
remand
State
Georgia
regard
principles
for
which the
of the case. Fair
sideration
for
constitutional
com-
have enforced
numerous
cases and
courts
reject
assumption
binding
compels
mands
on all courts
us
go
Georgia
would
man to
to his death as
the courts of
allow this
jury
admits was
of a
from a
which the State
result
conviction secured
impaneled.
Mooney
Holohan,
unconstitutionally
tory judgment (RCW seq.) by filing act et 7.24.010 their complaint, they alleged in which the action was brought purpose testing determining "... for the of and constitutionality the Act, and the of the defendants regents] carry [the establish, enforce, out, and admin- provisions through ister thereof the insistence that
plaintiffs employees and state other oath, execute the' (Paragraph complaint.) otherwise.” 9 of the rights employees As to their status and as state to chal- lenge professors. alleged, paragraphs the act, the 1 and . that: . “They King County, Washington, are residents and presently employed professors by are under contract as University Washington, hereinafter called the Univer- sity, higher learning an operated institution owned and by Washington, through the State of the defendant Board Regents.
“Through employment plaintiffs’ pursuant contracts and regulations the terms of 28.76 and the rules R.C.W. and University, plaintiffs employment tenure and retirement benefits.” certain allegations they questions wherein raised federal reading paragraphs 6 and as
found follows: Act, “Pursuant defendants have demanded sign copy plaintiffs oath, and swear to an which plaintiffs hereto, ‘A’; marked Exhibit attached unless comply demands, their with such contracts University will be terminated the defendants. provisions, requirements terms, the Act “The plaintiffs’ rights, privileges in violation of and the oath are the Constitution of the immunities under United States following particulars: rights They guaranteed “1. violate under the First applicable Amendment as made teenth the States the Four- Amendment; rights under the Fifth guaranteed
“2. violate They made States Four- applicable Amendment Amendment; teenth of their They plaintiffs rights
“3. without deprive them deny of law equal protection due process the Fourteenth as guaranteed Amendment; of the laws *6 and a Bill of Attainder
“4. constitute to Article They contrary I, 10.” Section answer, their denied all the regents, allegations referred to.
of the above complaint cause, After the trial of the trial court entered cer- fact and conclusions tain of law. The findings findings are to our are: inquiry which pertinent “I. The residents of plaintiffs King County, Wash- and are under ington, presently employed contract by University professors Washington, hereinafter an institution University, called of higher learning and owned State of operated Washington, through the defendant Board of Regents.
II. Through plaintiffs’ employment contracts and to statute and the rules pursuant University, regulations of the have certain tenure
plaintiffs rights cer- tain retirements benefits. All defendants are charged
“V. with the duty estab- lishing, enforcing, carrying out and administering pro- visions of the Laws of Chapter hereinafter called
Act, enacted Legislature State of Wash- 9, 1955, on March 21, ington March by the approved Governor on The Act that each provides department head in the State must that Washington each require his state under oath charge whether or not he is member Communist or Party other sub- versive failure to execute organization, upon such oath, be terminated. his employment Act, Pursuant
“VI. defendants have demanded oath, that swear to an sign of which plaintiffs copy herein, is attached to marked complaint A, Exhibit unless the stated plaintiffs complied their demands, contracts with the Uni- terminated would be versity defendants.” The trial court, in its law, conclusions of held that the act was invalid provisions because it violated certain Washington, constitution of the state of and declared professors that the declaratory were entitled to the relief injunction prayed and the question for. No federal decided the trial court. granted
The final following decree declaratory relief: hereby Chap- Adjudged “It Is Ordered, and Decreed ter 377, Laws of 1955 violates Constitution of the State Washington, and is therefore void and effect; of no permanently enjoined regents decree also from enforcing requiring act and from to exe- pursuant cute oath thereto. regents appealed
From this final decree the court, to this and, argu- after our consideration of the briefs and oral January ments, we rendered the unanimous decision of 29, 1959,referred to above. *7 posture
In this case, we turn to a consideration questions of the first of the three above, wit, set forth professors “hearing” whether the raised the issue either in the trial court or in this court. nothing complaint
canWe find in elsewhere indicating the record in the trial court that this issue was portions ever called to the court’s attention. just quoted plain record which we have make it that the issue was not raised or considered. The trial court’s decree declaratory granting professors specifically relief to the provisions that limited to the basis the act violated certain of the state constitution. Neither the decree nor the con- any clusions of law on which it was based mention fed- question only eral whatsoever. reference United anywhere constitution in the trial States court record is allegations paragraph complaint, in found 7 of the allegations points, quoted These raised four above. wherein rights, privileges that their claimed it was and immunities impaired' by constitution the United States were general However, oath. act and the these were in
119 hearing nothing lack of scope about the was said being them. one of finding allegation
Parenthetically, nor neither there is professors the oath or ever to take have refused that they In the absence to do so in the future. that intend showing premature, ain declar- it even would seem hypothetical tory judgment rule on a action, for a court to they professors that At least until the show situation. they sign do are not oath, so, or intend to refused hearing on an entitled to demand administrative ground.
II. Assuming the case came court the that when first to this hearing professors position issue, to raise were they question did do to remains: alert court What (now made in at that time as to their contention the Su- Court) preme act that was violative of United ground upon hearing that no constitution State explain at which the could or defend afforded take the oath. his refusal to court,
In their on the last brief before this coun- frankly for the stated: sel presentation “As to of this basis unconstitutional- ity appeal acknowledge Court, to this we respondents’ pre- did not brief we this with the retrospect would have cision definiteness we sufficiently presented liked. But this matter was in our problem procedural due to alert Court to brief process applied Act. our cited In brief we Education, U. Adler Board discussed (1952) (Resp. Ct. L. ed. 72 S. ALR *8 55); 31, 36, 48, v. 23, 27-28, 35, 53, Slochower Board 24, Br. L. ed. Education, 551, 637, 350 U. Ct. 100 692 S. 76 S. (1955) (C.A. 35-36), (Resp. States, United Br. and Rudder v. ” 21-23). 1955) (Resp. . . 226 51 Br. . F. D.C. many con- that,
It in a involved seems to us case which issues, federal, the citation stitutional both state points other cannot these three cases in connection with reasonably adequate hearing held to notice that being upon. issue was relied professors connection,
In this that, further assert validity because at that time of another section of the act (Section challenged relating was also to the United States Attorney organizations), General’s list of subversive we sponte, applied have, should sua to section the act adopted by Supreme rule Court in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 95 L. Ed. relating hearings. 817,71 indispensability Ct. to the We upon, do not think that we were called after having held that section 3 invalid, was search the record possible applications for other of the McGrath case to situ duty not ations called to our attention counsel. It specific presenting of counsel to be their contentions appellate to an In case, court. not done was regard hearing with to the issue until after hadwe decided the case. petition rehearing then filed a for (as aware), they
which, for the first time
far as we were
question
invalidity
raised
of section of the act
ground
provision
hearing
that there
on
no
for
explain
at which an
could
or defend his refusal
sign
(if
so).
the oath
he had refused to do
many years
This court has for
adhered to
ride
its
questions presented
that will
it
not consider
to it for the
rehearing.
petition
Hazzard,
first time
State (1913),
586,
III. comity, a matter of Nevertheless, as we desire to request comply Court’s we con provide act that the does the claim sider
121 explain refusal defend his at which the can of We, our consideration course, of limit take the oath. declaratory problem Even us. facts before controversy. justiciable judgment action, there must be Washington Beauty College 160, 80 P. Huse, 195 v. Wash. (1938). 403 requirements Supreme Court held has also controversy justiciable ain for a case or are no less strict type declaratory judgment proceeding other than litigation. of McAdory, U. Labor v. 325 S.
Alabama Federation State of 1725, 89 L. Ed. 1384. S. Ct. McAdory, Congress Organizations Industrial v. U. Ed. S. 89 L. 65 S. Ct. granted Supreme
In Court had writs these two cases the Supreme of certiorari to review the decisions of the Court proceedings declaratory judgment instituted Alabama constitutionality adjudications obtain as to (which regulated unions Bradford Act the conduct of labor state). “functioning” within the validity supreme upheld cer-
The state had court (and portions portions tain of the act had held other un- constitutional). reviewing case, On the record in each Court dismissed the writ certiorari because presented to the court there concrete of facts was no set statutory applied. provisions to indicate were to be which dismissing In in the case first cited the writ of certiorari opinion in a above, said, unanimous Chief Justice Stone:
“.
.
.
In advance of an authoritative construction
make,
statute,
court alone can
state
which the state
court,
called
Court cannot know whether the state
when
controversy,
apply
on
a defined case or
statute to
may
the constitu-
so as
avoid
not construe
statute
ques-
question.
decide
constitutional
tional
tion
For us to
by anticipating
construction
an authoritative
question un-
the
necessarily
either to decide
state statute would be
foundation
unstable
or rest our decision on
state statute which
of our
construction of
own
Spector Motor
to follow.
state
court would
be bound
McLaughlin, supra,
Co. v.
[323 U.
101] 105;
see also Van-
denbark
Co.,
v. Owens-Illinois
538,543;
U. S.
Huddleston
Dwyer,
“Further, contention 16 conflicts with the Na- post, p. Florida, 538, cf. Hill Act, tional Labor Relations v. by passed on was not Court, was not the Circuit raised assignment Supreme Court, error in the Alabama and pass question opinion that court did not either its on opinion in the Federa- in this case its Alabama State or controlling. adopted it tion Labor case which as will not errors Alabama Court consider which assigned, v. 50 Plummer, have & Co. not been Rowland Pettibone-Taylor 197, Bank, Co. Farmers 156 182, Ala. v. Malaney Co., Mines 191 666, 751; Ala. So. v. Ladura 46 Hardegree, 132, 202 Ala. 79 655, 666; Ala. Nichols v. 65 So. 341, Ala. Brooks, 486, Halle v. 209 96 So. which 598; So. specifically precisely as- raised have not been signments Co., Nashville R. error, v. Louisville & Kinnon Carney Co., 527, v. 200 Ala. 397; 65 Kiser 480, 187 Ala. So. 397, 399, 608; 96 209 Ala. So. 853; Pearce, 76 Hall v. So.
123 294, 2d v. 244 Ala. So. Butler, Lumber Co. Jackson 298. question been pass on the did not the State Since appear urged, to have and since it does not now presented are properly decision, we to that court for jurisdiction here. it in the first instance to consider without Chicago, Bowyer, Caperton Hulbert v. 236; v. 14 Wall. Pennsylvania, 287 U. S. 280, 281; Dorrance v. 202 U. S. Flournoy 665; also Manifold, Chandler v. U. S. see 660; v. Alderson, Wiener, U. Charleston Assn. 253; S. 182, 185, U. cited.” cases
The material facts shown the record professors case to this issue are that these two oath) (who presently have never refused to take the employed professors the Uni- contract as full regents. versity Washington, operated which is Through pursuant contracts, and their university, they regulations statute and the rules regents rights.3 have demanded certain tenure (a sign copy to an oath swear complaint), which is attached to their and have further *11 complied that, de- stated unless the with such employment university mand, their contracts will regents. be terminated very recently has in Yantsin v.
This court held (2d) (2d) (1959), that, Aberdeen, 787, 54 345 P. 178 Wn. rights, public in the of civil service or other tenure absence may discharged by employees employers be their without being assigned no reason There is vested therefor. Washington public in the state of to rights employee provided some tenure unless has discharge power except law. to is absolute Since discharged rights, public not is such tenure discharge. hearing regarding the reason for his entitled to a original pointed decision, the definition of As out in our person act amended in 1953 in the 1951 was subversive knowledge provide person an to that a must have organization organization he can be is subversive person. of Hence, element deemed to abe subversive regulations regarding rights, applicable see tenure rules and 3For opinion. appendix opinion. in discussed later this to These are 124
scienter is essential prove the oath. perjury taking This interpretation the act and the oath is now the law Therefore, the case. the decision in Wieman v. Updegraff, 183, 344 U. S. 97 L. Ed. 216, 73 Ct. has no application. It should further that, noted the Washington act, there is no as to acts or inquiry associations past past employee. affidavit in the speaks tense present as of the date only the employee takes the he oath. If now member of the Communist or other party subversive he organization, resign may today and execute the affi- davit tomorrow without incurring any penalty risking charge perjury. Apparently, New educa- Jersey tional oath statute likewise to the applies only status of the teacher.4 supreme Jersey recently 4The court of New rendered a unanimous Education, decision in the case of Lowenstein v. Newark Board (2d) 156, N. J. A. which concerned one same teachers Education, whose dismissal aside in was set Laba Newark Board of (We original J. A. N. cited the Laba case our Jersey opinion holding judicial as that New took notice that the Com party part conspiracy prime objective munist of a world whose government.) was the overthrow of the United States case, Hall, speaking court, In the Lowenstein Justice re- Jersey requiring to the ferred New educational present, oath statute as allegiance. past, policies point, Washington On this and New Jersey appear opinion stated, part, same. as follows: inquiry determining “Here the was to aid in whether there was charge appellant sufficient basis to was unfit to teach because sub- ject ideologies Subjection disciplines of Communism. con- government notes such belief of our overthrow force or other unlawful means and in substitution totalitarian state with heritage destruction all of our of individual freedoms be sub- any way carry act servient commands directed to out these essentially admittedly purposes. mind, It a state of nefarious difficult sufficiently extrinsically generally to determine but evidenced know- ing organizations membership participation in true Communist designed and activities to further the basic aim of violent over- *12 government. of our throw point inquiry in case “The focal the instant was such sub- jection past. suggested by in It is now rather than the not the Board any appellant past that of would a nature in conduct be of that itself subjection, justify present no dismissal even if there were so would upon circumstances, any, not called to determine what if we are right discipline in such a situation and we the to would exist what say particularly precise further is directed to the situa- are about to fact, specifically says Board’s brief In the that the ‘fit-
tion before us.
125 and being of in by superior called his being Instead if he belongs organization, asked to subversive orally each has the of asking pub the legislature adopted policy affidavit, in i.e. whether to state writing, lic employee If he at that time a such an organization. he is member of affidavit, matter. If he that is the end of the signs immediate dis declines is to sign, to subject no right he has no tenure he has vested rights, If charge. and act him due process. to affords employment, public 1, Los 362 4 L. Ed. County (2d) Nelson v. U. S. Angeles, of hand, has the other if he tenure 494, rights, 80 S. Ct. On of em accorded such a as his contract he must be calls for. ployment inquiry only question present party . . involved of
ness . not membership question present Party’s also the of subservience to but “ideologies disciplines’” (emphasis supplied), argu- oral and and at expressly agreed proposition that ment board’s counsel merely no dismiss exists because teacher was a member of Party past pres- it clear that he the Communist when is is ently. policy expressed view state Such a the educational follows 9.2) (N.J.S.A. where the oath statute 18:13-9.1 and criterion ” (Last allegiance. ours.) . italics . . approved also be noted that court case its It should 1951 Thorp decision in v. Board Trustees Schools Industrial Educa of of for (which tion, original 462 we 6 N. J. 79 A. cited our deci stating sion), as follows: “ Passing given . effect . . over matter to the prior questions, it the refusal did not extend to all event seems fact alleged personal dignity privacy can that mere invasion of clear inquiry questions posed type, to an of this if the constitute no bar subject today proper appropriate. is much too vital otherwise views, sincerely depend upon personal held. The however simply thought expres- of academic freedom of matter is not one Thorp Heher v. Board Trustees well said Justice As was so sion. (1951): Education, J. ‘The mainte- Industrial 6 N. Schools for against corruption process purity of the educational nance society. highest . concern . . is of influences subversive Loyalty government is a first and its democratic institutions free teaching requisite Freedom from exercise function. justifiable weapon as a destruction in force or violence belief (at very qualifications.’ government of a teacher’s essence 485, 493, Education, 513). 342 U. S. p. Adler v. Board also See Any privilege (1951). concept of individual Ct. L. ed. give way in privacy these against conscience must on intrusion greater public interest.” situations and these times *13 126 county
The Nelson case involved the dismissal of two employees questions put because of their refusal answer by congressional concerning them subcommittee sub- They previously version. had both been ordered county supervisors board questions. of to answer such appeal California upheld discharges district court of had granted the United States Court certiorari. employee (Nelson) It should be noted that one had a civil given hearing status, service and had been before the civil (Globe) temporary service commission; other awas employee not was entitled ato under the civil service rules.
The decision affirmed of the dis- charge equally of an Nelson Hence, divided court. his opinion. case was discussed in the As to Globe’s dis- charge, majority upheld his dismissal for insubordina- justices dissenting. tion, three majority opinion appears pertinent
Since bearing problem presented on the decision this case (especially professors’ because of the reliance on the therein), quote following case discussed Slochower we portion opinion: of that therefore, “We, reach Globe’s contention that his sum-
mary discharge
arbitrary
was nevertheless
and unreason-
places
regard
In this
he
able.
Board
his reliance on Slochower v.
(1956).
Education,
350 U.
551
However,
S.
of
discharged
York
New
statute under which Slochower was
specifically operated
discharge every city employee
‘to
who
practical
ques-
the Fifth Amendment. In
invokes
effect the
are taken as
tions asked
the
confessed
made the basis of
discharge.’ Id., at 558. This
‘built-in’ inference of
guilt,
solely
claim,
derived
from a Fifth Amendment
we
arbitrary
here,
held
and unreasonable. But the test
any
privi-
being the invocation
constitutional
rather than
lege,
employee
the failure
to answer. California
predicated discharge
inference
on
‘built-in’
has not
guilt
solely
its statute,
but
on
insubordination
give
have held that
information which we
for failure
the
securing.
legitimate
See Garner
has
interest
State
Angeles,
Los
“We conclude that case is controlled v. Philadelphia, (1958), Board Education 357 U. (1958). Casey, Lerner is not deter- and minative that the U. S. 468 It interrogation body here a federal one, rather than a been ordered state it was in those cases. had Globe *14 employer by as California’s his as well appear questions and law answer federal before Subcommittee. These made no reference to mandates privileges. simply If refused, Fifth Amendment had Globe questions, more, without we to answer Subcommittee’s principles think that under the of Beilan Lerner Cali- certainly discharged him. The fact that fornia could have place he puts supra, to matter his refusal on a Fifth Amendment claim chose posture, Lerner, different for as in no employ at claim the 477, Californiá did as drawing guilt. an inference Nor do we think basis of discharge by any that this is vitiated deterrent effect that might had California’s law have on Globe’s exercise his may privilege. federal claim of The State nevertheless legitimately discharge give predicate refusal to informa- on security. touching tion on the field See Garner say supra. Adler, Likewise, cannot as matter of due we securing process tion means of informa- that the State’s choice body testimony can federal grounds Finally, denied. we do not believe California’s discharge arbitrary See an classification. constituted County id., at 478. conclude that the order of Lerner, We Process Clause of Board was not invalid under Due Fourteenth Amendment.” pass upon Supreme Globe’s declined to also privileges immunities clause
contention as neither raised amendment, “since it was fourteenth It seems to nor considered courts.” California professors’ quoted phrase applicable to the us that the regarding the case at bar. issue in contentions rights, discussing professors’ desire we tenure Before companion decided to refer to cases two They the valid- involved 12,1960. both Court on December public requiring teach- ity school all an Arkansas statute learning higher sup- institutions ers precedent by public to their ported funds, a condition employment, to file an affidavit “as to the names and incorporated unincorporated addresses of all associa- organizations” they presently pay- tions and to which ing making they dues or are contributions, or to which paid dues or have made contributions “within the past years.” five cases,
One of these Tucker, Shelton v. 479, 364 U. S. L. (2d) appealed 231, Ed. 81 Ct. from the decision three-judge aof United court, States district 174 Fed. Supp. Young, case, 351. The other Carr v. 231 Ark. appeal 331 S. W. was an from the decision supreme upheld court of Arkansas. The two lower courts the statute and the Court reversed the decision justices dissenting. each case, four majority opinion held that the Arkansas statute was invalid it was because too broad. question
“The to be decided here is not whether the can State Arkansas ask certain of its teachers about all organizational relationships. their It is not whether the *15 can State ask all itsof teachers about certain of their as- sociational ties. It is not whether can teachers asked many organizations they belong how to, or how much time they spend organizational activity. question is every whether the disclose can State ask one of its teachers to every single organization with which he has been five-year period. scope inquiry associated over a of required by completely Act 10 is unlimited. The statute requires a teacher to reveal the church to which he be- longs, given support. he or to which It has financial re- quires political party, every po- him to disclose his organization may litical to which he have contributed over five-year period. requires list, a every It number, him to without profes- kind social, conceivable of associational tie— religious. Many political, avocational, sional, such rela- tionships possible bearing upon could no the teacher’s occupational competence or fitness.
U sweep “The unlimited and indiscriminate of the statute brings prior now before us The statute’s it our within the ban of cases. comprehensive interference with associational goes beyond might justified in freedom far what legitimate inquiry exercise into State’s the fitness competency judgments of its teachers. The in both cases must be reversed.” separate opinions written,
Two were both which dissenting justices joined. all four Mr. Justice Harlan stated in his dissent: “ . . . Where official action claimed to invade these
rights speech controlling [free association], in- quiry of a justifiable is whether such action is on the basis superior governmental interest which such indi- rights yield. complained vidual pertains must When the action investigation, inquiry to the realm of our has aspect: investigation first, double a whether the relates to legitimate governmental purpose; judged second, whether, light purpose, questioned in the of that action has sub- stantial relevance thereto. See Barenblatt v. United States, Wyman, Uphaus 360U. 109; S. v. 360 U. S.
“In the hand, two cases at I think both factors are satis- surely indisputable fied. It is that a State has the choose its teachers on the of fitness. And basis I think it equally appears recognize, clear, as the Court that in- may formation about teacher’s associations be useful to determining professional, school authorities in the moral, qualifications and social teacher, as well as in deter- mining type of service for which he will be best suited system. Adler educational v. Board See Educa- tion, 342 U. Beilan v. Board 485; S. Public Education, 399; U. S. see also Slochower Board Education, acknowledge 350U. Furthermore, S. 551. I take the court to agreeably previous may that, decisions, to our the State enquire resulting into associations to extent that the may legitimate purpose. information be in aid of that These cases therefore do not a situation such as we had Alabama, N.A.A.C.P. v. 357 U. Bates v. Little required Rock, 361 U. S. where the disclosure bears legitimate no relevance substantial state interest. “Despite these considerations this statute is stricken because, view, broad, down in the Court’s it too because *16 may necessary it asks more than to effectuate the be State’s legitimate justify statute, said, interest. a it cannot Such is the inhibition on freedom of association which so blanket inquiry may supra; an Bates v. Little Alabama, entail. Cf. N.A.A.C.P. v. supra.”
Rock, parenthetically the We note Arkansas statute does hearing provide pro- not for a at the teacher or the which may explain required fessor or defend his refusal the to file any any opinions affidavit, nor is there reference in of the necessity as to constitutional therefor. Washington
The statute involved here is tailored to the legislative necessary determination as to what premises protect the state and its educational institu- persons being tions from activities of subversive who are financially municipalities. maintained the state and its Unlike the statute, Arkansas act is not too our broad its scope. remanding
The Court, in case, has in effect asked us to construe the subversive activities act of (as 1955) amended in 1953 and in with reference to hearing issue. professors (as
Since the case the trial found) employed regents court are contract rights, as full have certain tenure we must light construe the activities act in the of the subversive rights they possess reg- tenure under the which rules adopted by regents. pertinent portions ulations The regulations appendix these rules and forth in the set opinion. to this
Briefly rights professor stated, the tenure include right given alleged grounds written notice of the discharge position, a “trial” for his from his stand- ing faculty composed committee of eleven members right represented committee, tenure known by any present during person choice, of his to be taking testimony, witnesses, call to cross- procedure prescribed opposing examine witnesses. conducting regulations of the hear- the rules and substantially person ing an the same as accused ordi- except jury narily law, trial. receive in court of would hearing, makes committee, at the conclusion of findings together recommendations, which, written testimony, presi- transcript are filed with the with a university (who dent also attends but committee). deliberations *17 professor may A position only be removed from his “for following cause,” which is defined as one or more of the (1) Incompetence, (2) neglect duty, (3) phys- reasons: incapacity, (4) ical dishonesty or immorality, mental or (5) felony. conviction of a president, reviewing findings after and recom-
mendations of the tenure committee, makes his decision as to whether or a cause for removal has been estab- particular lished in reports regents. a case and to the opinion provision We are of the that the in the subversive activities act to the effect that refusal to take any grounds” the oath “on shall be cause for “immediate employment,” termination of interpreted should not be meaning the case professor having before us as that a full rights tenure prived employment under his contract of de hearing provided
of the ato as in the rules regulations university. In other words, if the professors sign (which should they refuse to the affidavit yet do), they, have not opinion, refused to in our will en hearing titled to the before the tenure committee and to the procedures relating other employment to termination of prescribed university’s regulations, rules set appendix opinion. forth in the to this parties, respective (filed Counsel for both in their briefs subsequent argument court), to the last in this referred hearing provided (RCW § for in 15 of the 1951 act 9.81.090). opinion, hearing provision In our does not apply persons refusing sign oath, because, under (which chapter § of § Laws amends 12 of the act), public employee applicant refusal a public employment sign any grounds the oath on shall cause for immediate termination of such accept application or refusal to an therefor.
Declining stamp public to take the oath does not a em- ployee person. aas subversive There is no stain of dis- loyalty sign attached thereto. If he does not wish to may private employment. oath, he seek On the other hand, subsequently superior if he takes the oath and his has bona grounds investigating qualifications (including fide his charge person), he a then such em-
a subversive hearing ployee provided § 15 is entitled hearing Beilan, Lerner, 1951act. afforded in the Such supra. cases, Nelson and Lowenstein conclude that are not entitled to We hearing § above, act, but, 15 of the 1951 as stated committee, entitled to before the tenure be- *18 regulations by regents adopted the cause the rules and employment) (which part a contracts of so form their provide. regents urged, reply brief, have in their that professors hearing a the model are entitled to (Laws chapter 1959, 234, code ROW
state administrative citing Wong Yang Sung seq.), McGrath, et v. 339 34.04.010 33, 616, However, 70 Ct. 445. we are of U. S. 94 L. Ed. S. opinion that was not intended to this 1959 statute procedure adopted regents supersede established pursuant and 28.77.130. There is noth to RCW 28.77.120 legis ing us which indicates to in the administrative code relating repeal to to amend or the statutes lative intent Washington University operation which fifty years. in effect for been Supreme received
Pursuant to the mandate of Court 13, 1951 1960, this June we construe the sub- court amended), (as versive activities act of this state hearing question reference it affords of whether they may explain professors this at case which required by or defend their refusal take the oath (cid:127)act, as follows: (a)
Assuming timely professors raised this that they hearing Washington (b) courts, that in the issue they proved or have have refused take oath they opinion that, so, do we before will refuse to discharged professors, under refusal, can for such employment, contract of are entitled to their manner in the the tenure committee conducted regulations adopted prescribed applicable rules and (see regents appendix) for the termination of the
133 tenure of full University professors employed Washington.
As to all other case, issues involved adhere to we the views in our 29, expressed original opinion January &6 1959; and 460, 53 Wn. 335 P. 10.5 reported (2d) (2d) Court,
Pursuant to the mandate of the we direct that the clerk of this court transmit to that court forthwith a certified of this copy opinion. JJ.,
Hill, Weaver,
Rosellini,
Ott,
Foster,
Hunter,
concur.
5Other decisions of the
which
have been rendered
original
January
29, 1959,
bearing
our
since
decision of
and have
on
questions
States,
therein
decided
are: Barenblatt
v. United
360
Uphaus
109,
1115,
1081;
Wyman,
U. S.
3 L. Ed.
79 S. Ct.
v.
360
Uphaus
72,
(2d) 1090,
1040;
Wyman,
U. S.
3 L. Ed.
79 S.
Ct.
U. S.
(2d) 148,
153;
States,
5 L. Ed.
81 S. Ct.
v. United
Wilkinson
(2d) 633,
567;
States,
U.
5 L.
Ed.
Braden
S. Ct.
v. United
(2d) 653,
U. S.
5 L. Ed.
and trial court that had contracts and that, regulations they university, under the and the rules of had tenure rights. Secondly, the mandate Court directed us to professors’ pass on the claim “that no is afforded at which the explain Thirdly, can or defend his refusal take the oath.” arguments the the neither briefs nor of counsel in either of the two hearings any rights any court have reference this made the of public employees (state, county, municipal) of the thousands of and rights governed category provisions particular in whose each the city have not of other statutes or charters which even been mentioned litigation. this in only question the have answered involved in this case which We for has been referred to us answer the Court. organizations proscribed The dissent refers also the named attorney general. organizations United These have not been the States (Nostrand original opinion Balmer, in since our involved this case years ago. 460, 471) held, there was filed over two We in 53 Wn. (which attempted opinion, that section of act a unanimous proscribed organizations adopt those as subversive named attor- appeal ney general) three unconstitutional for No reasons. was part judgment, of so under from that our the law case taken organizations attorney general’s proscribed list of cannot be con- again. sidered
Appendix Excerpts Chapter II of From Part Faculty Handbook (1956)
University Washington of Faculty Tenure of Relating “Section 2501. Statute to Tenure “ Regents] ‘[The Board of shall have full control of university employ president, . mem- . . and shall faculty, employees bers of the of insti- assistants and during pleasure positions tution, who hold their shall Regents.’ 28.77.130(1)]. [See of said Board of RCW “Reference: see Section 1102. Regents Policy by 2511. University the Board of “Section Statement Regents Washington accept “The principle faculty concept tenure for members of teaching for and sustained
is essential effective productivity scholarship. “They accept principle concept furthermore faculty position privilege with- of a to hold his member salary, discriminatory and not to re- reduction in out abrogated except for cause therefrom,
moved should maintaining through orderly processes, administrative obligations responsibilities retaining, however, the Regents defined in the of the state laws of the Board of of
Washington. 1954 as October Board Regents, “Resolution 19, 1956. amended May of Tenure Definition “Section faculty his to hold member “Tenure is the salary, discriminatory position reduction without discriminatory position,. re- loss of such suffer not to except manner salary, and in the the reasons duction Chapter. provided Tenure 2532. Criteria “Section provision disqualified other he is “A. Unless faculty has tenure member section, a full-time of this if— *20 professor. . . . professor associate or “1. he is Policy Granting Procedure Tenure: 2541. “Section faculty granted members should be “A. Tenure University, ability scholarly that the character such so employ justifiably undertake permit, can resources far as its careers. Such academic of their the rest them for considered granting tenure be policy requires carefully. specific significant act, It be a even should more promotion only rank, than in academic which is exercised scholarly after careful consideration of candidate’s qualifications and character. . . . “Section 2551. for Grounds Removal of Persons Tenure with Faculty having provisions “A. members tenure under the may Chapter positions of this subjected be removed from their or discriminatory salary reduction of for one or following more of the reasons: Incompetence Neglect Physical
“1. “2. “3. duty incapacity
or mental Dishonesty immorality
“4. or felony
“5. of a Conviction Such removal termed ‘a removal for cause.’ reorganization Upon University “B. within for budgetary faculty this policy, or reasons for reasons educational having provisions under the members tenure Chapter may positions, provided be removed from their reorganization, principles “1. that the in its relation to procedure tenure, is a reasonable calling it, circumstances for every possibility placing “2. that reasonable persons University other tenure has exhausted. been reorganization.’
Such a removal is termed a ‘removal for proceedings reorganization, In rules of to effect a removal procedure prescribed in Section shall followed, the Tenure but Committee shall not consider the reorganization budgetary merits of the or as educational policy beyond determining its reasonableness in relation principles of tenure. Necessity Hearing Proceedings “Section 2552. in Tenure faculty having “No member tenure as defined in this Chapter subjected position shall removed from his discriminatory salary given reduction of until he has been opportunity prescribed for a as Section 2562. Tenure “Section 2561. The Committee faculty standing “There committee of the shall be composed known as the Tenure Committee which shall be faculty appointed All of eleven members the Senate. having persons tenure members of this committee shall be Chapter. defined in this Committee Procedure of the Tenure “Section proceedings the Tenure Com- “A. To institute requirement the dean of Section mittee under the *21 college faculty of the question or school which the member employed sign present shall a written statement to the chairman of the Tenure Committee. This grounds pro- the written statement shall set forth all posed the such for faculty position removal of the member from or his salary. proposed discriminatory If reduction of his no by faculty subject dean, action is taken a his member discriminatory position from or to reduction removal his salary may proceedings of by institute the Committee signed presented statement, a in the same written grounds opposing the manner, which shall set forth his impending against action taken or him. Upon receipt
“B. of such a written from the statement copy a dean, chairman of the committee shall cause faculty it delivered mailed to the affected of to be or member by proposed Upon receipt action. of such a written faculty member, the chairman shall cause statement from a a copy of it to or mailed to dean of be delivered college faculty member’s or school. mailing twenty days delivery of after or a “C. Within person copy statement, the it has the written whom of present the chairman mailed of been delivered or shall containing admissions, a
the committee written answer appropri- he deems denials, or other relevant statements as receipt Upon answer, the chairman of ate. written copy cause to be mailed or de- the committee shall it signer of the written statement. livered to upon Upon receipt “D. answer default written hearing fix a the committee shall date thereof, person signer statement and the of the written advise copy served of the time and thereof was to whom place committee. matter be heard which the will at Hearings governed “E. the Tenure Committee prescribed the rules below. shall sit in a case which
“1. member of the committee No department or of his his col- a com- involves a member of lege departmentalized. If if it is not or school upon disqualified, the Senate is so mittee member Committee on Committees recommendation having faculty appoint tenure to act member shall in place disqualified member. judgment passed President, it “2. must be Since a mem- President, ex who is desirable that officio as an committees, with the committee all sit ber findings but, judge auditor, must he because present recommendations, he at the shall not be final deliberations. hearing majority
“3. At the of the committee consti- quorum. tutes party representation
“4. Each is entitled to by any person party his Each shall con- choice. privilege witnesses, shall have the fronted being testi- at all committee sessions when mony being *22 heard, and shall produce witnesses, documents, relevant and call cross-examine opposing witnesses. any charge hearing professional
“5. If the of involves faculty incompetence part member, of a on the testimony field, of scholars in his whether within or University, without the be considered if offered. shall stenographic hearing A shall “6. full record parties to all concerned: made and shall be available hearing, “7. At the of the committee shall conclusion findings promptly make written and recommenda- original together which, the tran- tions, the of testimony hearing, script at filed with of shall be findings Copies recom- the President. mendations shall be sent to of hearing. party each according hearing to such “8. The shall be conducted may supplementary rules the committee establish. necessarily guided, not committee shall The but by rules evidence observed in courts bound, of law.” (concurring specially) United States J.
Finley, C. —The Supreme one case to us answer has remanded this Court logic only plethora question. rhetoric can No or one merely change wants to know whether this fact. The Court (RCW 9.81.070)), chapter (Laws of the state act gives by supreme court, state evaluated our as construed or hearing right ato a Nostrand Savelle to Professors they employment execute if refuse to before termination prescribed the act. the oath majority Donworth, J., opinion for the written act, activities unequivocally that the state subversive
states hearing. provide to a supra, in and of itself does equal vigor opinion that, majority states with However, the employees professor's, as individual event, the University, hearing would be entitled ato tenure provisions committee under the tenure their regulations University contract and Washington pertaining thereto. agree majority
I with the on both scores. (dissenting) J. Court of the Mallery, —The judgment United States vacated the and remanded the cause to this court in order to ascertain whether or not the interpretation hearing act our affords an explain in which he can or defend his refusal to take oath.
Accordingly, purpose opinion of the instant of this contemplates court is to decide whether or not the act such hearing inform the United States of our decision.
Implicit implication in the remand is the that, if hold we act, is not afforded it is “violative process.” due every requires public employee answer, act perjury, penalty person whether not he is a subversive *23 being by party reason of member of the Communist or designated any organizations the as subversive the pursuant attorney general the United States to executive penalty refusing to take the order No. oath discharge. immediate is language interpreted can no that
The act contains as any hearing withstanding providing kind. this, Noth for a posed by opinion majority met the issue has the United the by holding remand the act does afford States hearing contemplated by the United kind of States the majority conclusion, reach this To the Court. hearing opinion available to teachers assumes discharge unrelated teacher under tenure statutes public employees. process to of law I do due not constitutes agree. respondents are teachers, happens teachers
It employees public part comprise this state. do employees that other opinion not hold does can majority hearing statute, a tenure under the teacher tenure hearing explain that even a teacher in a can his tenure act discharge refusal to take the oath as a defense to question quote either the act in or the teacher tenure act. I majority opinion: from the being being superior
“Instead of called in his orally belongs organization, asked he if to subversive legislature asking adopted policy public each has employee is at writing, affidavit, to i. e. he state whether signs organization. If he that time a an member the affidavit, that is the end of the matter. If he declines discharge. sign, employee subject to he If is to immediate rights, public has no tenure he has no vested employment, process. him Nelson v. act affords due County Ct. 527. Angeles, (2d) 494, 4 Ed. Los 362 U. L. S. rights, he must hand, he tenure On other if has be accorded such a his contract of calls for.” rights from exclude teachers
Teachers’ contract do not operation question, the mandate of which of the act in Explanation to take the nature. of the refusal absolute in discharge therefore, oath a defense to not, would constitute oppor- hearing. process requires an in a think due tenure I tunity merely prejudged futile defend, not make statement. purpose act is shield the
While the avowed sovereignty overthrow, an in- from forcible of the states public pay avail- roll shall not be tended is that the result believing principles persons of the Communist able to organizations proscribed party named or of attorney general. United States put qualifications permit an affiant
The act does says: majority opinion affidavit. As in his or limitations matter. If signs the end of the affidavit, that is “If he subject sign, to immediate he declines to *24 (Italics mine.) discharge.” original opinion of this in the mentioned
The scienter accuracy knowledge of affiant’s relate to court does not agreement completeness organizations of his competence only goes affiant’s mental It their tenets. with and his joining being awareness of what acts constitute organizations question. member of the body of the act constitutes rule of evidence, viz., membership proscribed organizations in the constitutes proof respect, unrebuttable of a state of mind. In this it theory harks “Imagining back to the ancient-crime of King,” death of the which was committed a state of mind without the commission of an Thus, overt act. public employee is coerced to reveal his secret abstract thoughts penalty discharge. Scopes of instant teaching convicted of Darwinism. Under the instant kind refusing law, of a he could convicted to reveal his secret belief in Darwinism. process
If due of law the Court of the opportunity United States means of a member organizations proscribed to defend himself on the ground personally individually that he not, does government, fact, believe forcible overthrow of the contemplates accomplish and that he no overt act to a result, our answer to the remand should the act permits affords no such no such defense. I do agree majority opinion’s representation contrary. I dissent. rehearing 8, 1961. Petition for denied.
June