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District Court of Appeal, Third District, California.


Civ. 8586.

Decided: June 22, 1954

Wirin, Rissman & Okrand, A. L. Wirin, Fred Okrand, Los Angeles, for petitioner. Edmund G. Brown, Atty. Gen., Richard L. Mayers, Deputy Atty. Gen., for respondents.

Petitioner was an Associate Professor of Psychology at San Diego State College. He asks this Court for a writ of mandate directed to the California State Board of Education and others, commanding them to reinstate him in his position and make him whole for loss of salary upon the ground that the respondents have unlawfully discharged him. We issued an alternative writ of mandate and the matter is now before us for decision.

Purporting to act under the authority of Article 3 of Chapter 1 of Division 1 of the Education Code and Chapter 2 of Division 10 of the Education Code and Section 1028.1 of the Government Code, respondent board directed petitioner to appear before the board and its Director to answer questions relating to:

(a) Present personal advocacy of the forceful or violent overthrow of the Government of the United States or of this State.

(b) Present knowing membership in any organization so advocating.

(c) Past knowing membership at any time since September 10, 1948 in any organization which to his knowledge and during his membership so advocated.

(d) Present knowing membership in the Communist Party or past knowing membership in that party at any time since September 10, 1948. Gov.Code, § 1028.1.

Responsive to questions asked him, petitioner testified that for eighteen years he had been Associate Professor of Psychology at San Diego State College; that he had no knowledge as to whether or not the Communist Party advocates the forceful or violent overthrow of the United States or of any state; that he had never belonged to, and would never so long as he was a State employee, belong to, an organization that advocated force and violence against the United States, this State or any subdivision thereof; that he had taken the Levering oath, art. XX, § 3, Calif. Const., had taken it honestly and that he then reaffirmed it in all of its parts and, specifically, that he did not advocate, never had advocated and never would advocate so long as he was publicly employed, the violent overthrow of government; that he had not at any time since September 10, 1948 knowingly been a member of the Communist Party when to his knowledge it advocated the violent or forceful overthrow of the Government of the United States or of any state. When asked, ‘Are you now knowingly a member of the Communist Party?’ he refused to answer. When asked, ‘Have you at any time since September 10, 1948, knowingly been a member of the Communist Party?’ he refused to answer. The examining board adopted a resolution recommending to the Director of Education that for these refusals petitioner be dismissed from his position. The Director took such action. Petitioner applied to the State Personnel Board for a hearing, which body, after hearing, found that the failure to answer these questions was ground for dismissal under Section 20396(e) of the Education Code and Section 1028.1 of the Government Code and having so found affirmed petitioner's dismissal.

This cause presents questions as to the method, nature and extent of permissible inquiries touching the loyalty of government employees, which questions for some ten or more years have engaged the attention of courts throughout the country. The purpose of the subject legislation under which these proceedings were taken was to statutorily authorize the government and its agencies to inquire from time to time into such matters; and the legislature, after adopting certain legislative findings, declared that it should be the duty of any employee who might be subpoenaed or ordered by the governing body of the state or of any local agency to appear before such governing body or agency to answer under oath questions relating to loyalty in the field of advocacy of, or membership in, organizations that advocate violent overthrow of government.

Petitioner's contentions are broader than the issues presented to us. It is to be noted that petitioner has not been separated from State service because he is or ever was a Communist or a member of the Communist Party or because he is or ever was a member of any organization advocating violence against government or because he does so advocate or ever has so advocated. He was separated from service because he refused to answer two specific questions. Although in his arguments the petitioner makes broad attacks upon the subject legislation, we are not called upon to do more and we do not more than to determine whether or not his refusal to answer these two questions constituted cause for his dismissal. We are not concerned with and do not decide what would be proof of disloyalty in fact, sufficient for dismissal upon that ground.

Government has the right to direct that its employees shall not belong to organizations which they know advocate the overthrow of the government by force or other unlawful means and such employees may be required to make sworn statements similar to the Levering oath as a condition to obtaining or continuing in public employment. Pockman v. Leonard, 39 Cal.2d 676, 686, 249 P.2d 267. A person's associates, as well as his conduct, are relevant factors in determining fitness and loyalty. The State, under its police power, may properly limit a person's freedom of choice in such organizations and employment in the school system. Pockman v. Leonard, supra, citing Adler v. Board of Education of City of New York, 342 U.S. 485, 72 S.Ct. 380, 386, 96 L.Ed. 517. Government, in achieving its object of having in its employ no disloyal person, is not limited to requiring its employees to take loyalty oaths. It may also subject such employees at reasonable times and places and upon reasonable notice to direct inquiry, under oath, and require that they then answer questions relevant to such matters.

We see no substantial difference in requiring sworn affidavits as to membership or non-membership in the Communist Party and in requiring sworn statements at a hearing. And as to the right of government to require the former, the Supreme Court of the Nation said in Garner v. Board of Public Works, 341 U.S. 716, 720, 71 S.Ct. 909, 912, 95 L.Ed. 1317, 1322:

‘The affidavit raises the issue of whether the City of Los Angeles is constitutionally forbidden to require that its employees disclose their past or present membership in the Communist Party or the Communist Political Association. Not before us is the question whether the city may determine that an employee's disclosure of such political affiliation justifies his discharge.

‘We think that a municipal employer is not disabled because it is an agency of the State from inquiring of its employees as to matters that may prove relevant to their fitness and suitability for the public service.’

In such inquiry, since past conduct and loyalty bears a reasonable relationship to present fitness and trustworthiness, information may be required regarding it. Garner v. Board of Public Works, supra, 341 U.S. at page 720, 71 S.Ct. 909; see also Pockman v. Leonard, supra, 39 Cal.2d at page 687, 249 P.2d 267. And the fact that divulging past or present membership in such organizations may under some circumstances amount to self-incrimination does not divest the power of government to require answer as a condition or qualification of employment. Pockman v. Leonard, supra, 39 Cal.2d at page 687, 249 P.2d 267, citing Christal v. Police Commission, 33 Cal.App.2d 564, 92 P.2d 416. It is the duty of an employee to answer questions of the employer touching occurrences in employment affecting the subject thereof and to answer questions touching fitness of the employee to remain in service; and a violation of that duty with or without a specific statutory declaration would constitute cause for dismissal upon grounds of insubordination and conduct unbecoming such employment. Christal v. Police Commission, supra, 33 Cal.App.2d at page 568, 92 P.2d 416. We think the legislature was acting wholly within its well-recognized powers when it enacted Section 1028.1 whereunder it specifically authorized the respondents to order petitioner to appear and to answer questions relating to the subject matter set forth in said section.

The legislature in said section has not attempted to word the questions that may be asked. It has declared as to each subject mentioned therein that questions relevant thereto may be asked and must be answered. Thus, while inquiring as to present personal advocacy by an employee of violent overthrow of government, any question fairly relevant to that subject may be asked. So with the other subjects of inquiry stated in the section; and many questions would be relevant to all alike. It would have been relevant, after petitioner had answered any question which he did answer to have asked this further question: ‘Are you a member of the Communist Party?’, or this question: ‘Have you at any time since September 10, 1948 been a member of the Communist Party?’ We hold further that in this inquiry these specific questions could have been asked without asking the others, for if, as has been held, government may inquire of its employees touching their loyalty to it then government may ask any questions relative to that inquiry and the question as to membership, past or present, in the Communist Party is relevant to such inquiry. It is well known that there is a Communist Party in this country and that it purposely has acted and does act subversively; that it and its purposes have been the subject of legislative findings by the Congress, and by the legislatures of many of the states, as well as of this State; and that, based upon such findings, Congress and the legislatures of the various states have enacted legislation in recognition not only of the existence of the party in this country, but also of its unlawful and subversive activities and purposes. So in promulgating the National Labor Relations Act, Congress made detailed findings upon the matter of that party's existence. In American Communications Ass'n, C. I. O. v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925, the Supreme Court upheld those provisions of the act which required the officers of a union, seeking to utilize the opportunities afforded by the act, to file an affidavit with the board that they were not members of the Communist Party or affiliated therewith and that they did not believe in and were not members or supporters of any organization that believed in or taught the overthrow of government by force. Commenting upon the nature of that party as revealed by the Congressional findings, Mr. Justice Jackson in a concurring opinion stated that from information before it and from facts of general knowledge Congress could rationally conclude that behind its political party facade and Communist Party was a conspiratorial and revolutionary junta organized to reach ends and to use methods incompatible with our constitutional system; that its goal was to seize power of government by and for a minority rather than to acquire power through the vote of a free electorate; that it alone among American parties is dominated and controlled by a foreign government; that violent and undemocratic means are the methods used to attain its goal; and that every member of it is an agent to execute the Communist program. It is not, rightly speaking, a political party. Pockman v. Leonard, supra, 39 Cal.2d at page 686, 249 P.2d 267. While enacting the subject legislation here our Legislature made similar findings. In addition to all of this, many trials have been held in the courts of this Nation wherein the existence and the subversive purposes and activities of the Communist Party have been put directly in issue. The triers of fact in those trials have frequently held that the party does exist in this country and that its purposes and activities are subversive; and these findings have been upheld by the highest courts in the states, and by the Supreme Court of the United States, as having been abundantly supported by the evidence introduced. It is, therefore, proper to say that in an inquiry touching the loyalty of public employees to the government by whom they are employed, with particular reference to whether or not they belong to subversive organizations or advocate their unlawful purposes, they may be asked and required to answer as to whether or not they belong to the Communist Party. Such a question is relevant to the inquiry and the employee is required to answer upon pain or separation from government service for refusal. And in this aspect it is immaterial whether or not the question is limited to membership with knowledge of the party's subversive purposes. It has been held that separation from service cannot be predicated upon innocent membership, that is, membership without knowledge of such unlawful purposes and activities. But we are not now discussing, nor are we required here to discuss, the limitations that must be imposed upon separation from service lest the innocent be discharged as well as the guilty. We are concerned here only with the relevancy to the subject of inquiry of the question: ‘Are you a member of the Communist Party?’ It is relevant to inquire as to membership in the Communist Party without attaching to that question any qualifications whatever. If the answer be that the questionee is not a member of the Communist Party and that answer is by the inquirer accepted as true, further inquiry could be dropped. If the inquirer suspects the good faith of that answer, further questions could properly be asked to develop its truth or falsity. If the questionee answers that he is a member, then further inquiry would be relevant touching the question of whether his membership was innocent or guilty. And if it be that only guilty membership will sustain expulsion from service it nevertheless remains true that the inquirer, in order to develop the inquiry in orderly manner, may ask flatly whether or not the questionee is or has been a member of the Communist Party.

The questions which the petitioner refused to answer were couched in the language of the legislation, that is, petitioner was asked as to present knowing membership in the Communist Party and as to past knowing membership therein. We have said that the question could have been directed to membership, whether guilty or innocent, knowledgeable or otherwise, and of course that means that the question could also be asked in the form in which it was asked. The legislature was not concerned, nor are we, with the wording of the questions. It and this Court were and are concerned only with the relevancy of those questions. The questions as asked in this proceeding were relevant to the inquiry and it was the duty of the petitioner to answer them. This he refused to do and his separtion from the service was, therefore, justified.

In all essentials the proceedings here were like those under attack in Adler v. Wilson, decided by the Appellate Division of the Supreme Court of New York, reported in 282 App.Div. 418, 123 N.Y.S.2d 655, 657–658:

‘The basic question before us is as to the right of the Board or the Superintendent of Schools to question teachers as to their Communist Party membership, past or present, and their obligation to answer. None of the petitioners admits membership in the Communist Party, nor is the latter a party to this proceeding and appeal. The question here posed was answered in Garner v. Board of Public Works, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317. * * *

‘The Garner case remains conclusive as to the Board's right of inquiry concerning a teacher's membership in the Communist Party, as well as his obligation to answer. * * * In a concurring opinion Mr. Justice Frankfurter said, 341 U.S. 716, 725, 71 S.Ct. 909, 915, 95 L.Ed. at page 1325, ‘A municipality like Los Angeles ought to be allowed adequate scope in seeking to elicit information about its employees and from them. It would give to the Due Process Clause an unwarranted power of intrusion into local affairs to hold that a city may not require its employees to disclose whether they have been members of the Communist Party or the Communist Political Association. In the context of our time, such membership is sufficiently relevant to effective and dependable government, and to the confidence of the electorate in its government.’'

Petitioner further contends that he substantially complied with Section 1028.1 of the Government Code by the answers he did give to other questions asked of him. We think it apparent from what has been said that this contention cannot be sustained. Petitioner says that by his answers which were heretofore delineated he did substantially answer the questions: ‘Are you now knowingly a member of the Communist Party?’ and ‘Have you at any time since September 10, 1948, knowingly been a member of the Communist Party?’ If the petitioner believes that contention to be sound we cannot understand why he did not make direct answers to the specific questions asked. Petitioner's questioners were not required to submit to quibbling. They were entitled to have a direct and unconditional answer to the specific questions as to his past or present membership in the Communist Party. His refusal to so answer was a violation of his duty, an act of insubordination and justified his discharge.

The alternative writ heretofore issued is discharged and the peremptory writ is denied.

VAN DYKE, Presiding Justice.

SCHOTTKY and PEEK, JJ., concur.

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