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District Court of Appeal, First District, Division 2, California.

The BOARD OF EDUCATION OF the SAN FRANCISCO UNIFIED SCHOOL DISTRICT, and John G. Levison, Its President, Mrs. Clarence Coonan, Bert Levit, Joseph L. Alioto, Charies J. Foehn, Mrs. George Hindley and Charies G. Trowbridge, Members of said Board, Plaintiffs and Respondents, v. John W. MASS, Defendant and Appellant.*

Civ. 16495.

Decided: October 17, 1955

Lawrence Speiser, Staff Counsel, American Civil Liberties Union of Northern California, San Francisco, for appellant. Dion R. Holm, City Atty. of City and County of San Francisco, San Francisco, Irving G. Breyer, San Francisco, of counsel, for respondents.

This is one of those cases in which a public officer engages in un-American and anti-social activities denouncing the Constitution and laws of his government while enjoying the emoluments of public employment, and then, when caught, seeks protection of the same Constitution which he had been all too willing to destroy. In an eminently fair trial in the Superior Court he was found to have wilfully and defiantly violated the Constitution and Statutes of the State and was removed from his public employment.

The appeal does not call for extensive treatment. Appellant was cited to appear before the school board to answer specific charges. He made no defense to these charges other than that he was above the law and could not be discharged. Specifically he refused to affirm or deny the charge that when summoned before the Committee of the United States Congress he refused to affirm or deny that he had told the truth in his affidavit of October 1950 relating to his membership in the Communist Party. In that affidavit he had stated that he had been a member of the Communist Party in the years 1947–1949, but that he was no longer connected with it; also, that he had never heard that any person or group in the Party had advocated the overthrow of the government. If this statement were true, it could not have hurt the witness to so state to the Congressional Committee.

It is a fair assumption from all these circumstances that the witness had misled the school department in his affidavit, that he did not dare reaffirm the statement before the Congressional Committee because that would be perjury; and that he did not dare disaffirm his affidavit because that would have been a confession of perjury.

This conduct of the appellant was sufficient to justify the order dismissing him from the school department. That action was taken under the provisions of section 1028 of the Government Code which read:

‘It shall be sufficient cause for the dismissal of any public employees including teachers in the public schools or any state supported educational institution when such public employee or teacher advocates or is a member of an organization which advocates overthrow of the Government of the United States or of the State, by force, violence, or other unlawful means.’

Is the argument that it was necessary under the section to show that he was ‘knowingly’ a member of the Communist Party? The answer is that if he did not know it he was too dumb to be a school teacher. However, it was not necessary to show that appellant knew of the activities of the Communist Party. Membership in the Party since 1948 was sufficient. Section 12604, Education Code, subd. (d).

A fundamental error in appellant's position is that he assumes that the status of a school teacher is contractual. Such is not the case. His position is statutory and all his rights and privileges come from the statutes regulating his position. Taylor v. Board of Education, 31 Cal.App.2d 734, 89 P.2d 148.

But it is useless to give further treatment to the points raised by appellant since all relevant points were fully covered in the opinion filed by the learned trial judge which we quote in full and adopt as the opinion of this court:

‘The Board of Education of the San Francisco Unified School District has filed this proceeding to secure court permission to dismiss John W. Mass as an employee of this District. This proceeding is brought under the provisions of the Education Code (Section 13521 et seq.).

‘There is no dispute as to the facts involved in this proceeding. It is conceded that John W. Mass, a teacher at San Francisco State College, was called before a subcommittee of the United States Congress and refused to answer under oath questions concerning and relating to his past knowing membership in the Communist Party at any time since September 10, 1948.

‘Under the provisions of Section 12604 of the Education Code, such refusal constitutes insubordination and it is required that such employee should be dismissed from his employment.

‘The defendant teacher contends that this act, known as the Dilworth Act, is unconstitutional, and has set up a series of objections to the Act. None of these objections is well founded and all of them have been rejected by our State Appellate Courts or the United States Supreme Court in cases involving somewhat similar situations under other legislative acts. Garner v. [Board of Public Works of City of] Los Angeles, 341 U.S. 716 [71 S.Ct. 909, 95 L.Ed. 1317]; Board of Education [of City of Los Angeles] v. Swan, 41 Cal.2d 546 [261 P.2d 261]; Board of Education [of City of Los Angeles] v. Wilkinson, 125 Cal.App.2d 100 [270 P.2d 82]; Pockman v. Leonard, 39 Cal.2d 676 [249 P.2d 267].

‘This Act does not deprive defendant of his liberty and property without due process of law. ‘A teacher's employment in the public schools is a privilege, not a right. A condition implicit in that privilege is loyalty to the government under which he school system functions. It is the duty of every teacher to answer proper questions in relation to his fitness to teach our youth when put to him by a lawfully constituted body authorized to propound such questions.’ Board of Education [of City of Los Angeles] v. Wilkinson, supra [125 Cal.App.2d 100, 270 P.2d 85]. The defendant employee has had a hearing before the Board of Education and has also had a hearing before a court. All steps taken concerning him have carefully protected his rights.

‘The legislature has determined that there is a clear and present danger to our form of government through the Communist Party and that such party intends to undermine the patriotism of our school pupils through invasion of our School Departments. Certainly, finding as it does, the legislature has a right to ask of all employees in the School Department a full and honest disclosure by those employees when questioned as to their association with the Communist Party.

‘The legislation is not special legislation because the classification is reasonable. It is clearly recognized that school organizations which have the power to mold the thoughts and conduct of children can so greatly affect their lives that the state must have the power to inquire into the beliefs of those connected therewith.

The defendant objects that the law might be construed to warrant dismissal when the legislative committee was not empowered to ask the questions which were not answered. That does not concern this case, for here admittedly the Congressional Committee was empowered to act.

‘The defendant contends that the law is unconstitutional because it does not require him to have knowledge of the disloyal purposes of the Communist Party. In this proceeding he is not being charged with membership in the party, but in refusing to answer whether he was a member. It is the refusal to answer that is the conduct which the legislature has made insubordination or unprofessional conduct.

‘The Dilworth Act is not unreasonable and arbitrary, nor does it make unconstitutional provisions, inferences and classifications. The Act is based on findings as to the nature of world communism made by the legislature which are set forth in the statute. Legislative determination of the need for restriction as to particular forms of conduct is given due recognition by the courts: [American] Communications Association v. Douds, 339 U.S. 382 [70 S.Ct. 674, 94 L.Ed. 925]. In a recent Superior Court case upholding the Dilworth Act, Orange Coast Junior College v. St. John, Judge Gardner Quotes from the opinion of Mr. Justice Jackson in the Douds case as follows: ‘In weighing claims that any particular activity is above the reach of the law, we have a high responsibility to do so in the light of present-day actualities, not nostalgic idealizations valid for a simpler age. Our own world, organized for liberty, has been forced into deadly competition with another world, organized for power. We are faced with a lawless and ruthless effect to infiltrate and disintegrate our society. In cases involving efforts of Congree [sic] to deal with this struggle we are clearly called upon the apply the long-standing rule that an appointive Judiciary should strike down no act produced by the democratic processes of our representative system unless unconstitutionality is clear and certain.’ This quotation aptly applies here, and the effort by the California legislature to meet this problem in our schools should not meet interference by the courts unless unconstitutionality is clear and certain.

‘Defendant urges that no inference should be drawn against him because he invoked the Fifth Amendment and refused to answer. The law does not require any inference to be so drawn. It recognizes the refusal itself to constitute insubordination and so it does. As said in Christal v. Police Commission, 33 C[al.] A[pp.] 2d 564, 92 P.2d 416, 419: ‘We are not ummindful of the constitutional privilege above mentioned which may be exercised by all persons, including police officers, in any proceeding, civil or criminal. In re Lemon, supra [15 Cal.App.2d 82, 59 P.2d 213]; In re Hoertkorn, supra [15 Cal.App.2d 93, 59 P.2d 218]. As we view the situation, when pertinent questions were propounded to appellants before the grand jury, the answers to which questions would tend to incriminate them, they were put to a choice which they voluntarily made. Duty required them to answer. Privilege permitted them to refuse to answer. They chose to exercise the privilege, but the exercise of such privilege was wholly inconsistent with their duty as police officers. They claim that they had a constitutional right to refuse to answer under the circumstances, but it is certain that they had no constitutional right to remain police officers in the face of their clear violation of the duty imposed upon them. McAuliffe v. City of New Bedford, 155 Mass. 216, 29 N.E. 517 [518]. We are of the opinion that such a violation of duty would constitute cause for dismissal even in the absence of any specific rule requiring such officers to give testimony before the grand jury, * * *.’

‘The defendant's contention that the Act constitutes a bill of attainder has no support. The legislature may undoubtedly prescribe qualifications for teachers to which this defendant was required to conform. When the qualifications are reasonable it does not follow that the Act is a bill of attainder because it has the necessary effect of disqualifying some persons presently engaged in a vocational pursuit. Garner v. [Board of Public Works of City of] Los Angeles, supra. The qualifications prescribed insofar as this particular proceeding is concerned are reasonable and defendant should have accorded with the requirements of the statute in answering the questions addressed to him.

‘In reading the transcript of the proceedings before the Board of Education this Court noted that one of defendant's pupils in a plea for his teacher pointed out the motto of the school: ‘The truth shall make you free.’ [T]he Court would ask how can the truth be revealed if he who possesses it refuses to answer when legitimately questioned? This defendant had the opportunity to assist the constituted authorities in ferreting out the steps by which a free government may be undermined, the minds of its citizens captured, and liberties destroyed. The defendant would not cooperate. If he had responded and told the truth, he would not be before this court. As he did not reveal the truth, he is not free to teach American youth, for he has shown himself lacking in the fundamental requirement of acceptance of law, a fundamental so necessary in the preservation of the rights of free people.

‘The Court finds that the charges set forth in the complaint are true and that the defendant is guilty of (1) unprofessional conduct, (2) evident unfitness for service, (3) insubordination, and (4) refusal to obey the school laws of the state.’

After the opinion in the trial court had been written the opinion of the Supreme Court in Steinmetz v. California State Board of Education, 44 Cal.2d 816, 285 P.2d 617 was filed. That case also involved a school teacher who appears to have been just as timid in his allegiance as the appellant herein.

In that case the Court held that the socalled Luckel Act—Government Code, Section 1028.1, which required a State employee to appear before the proper agency and give testimony as to his subversive activities, was a valid exercise of the police power of the State. In that case the employee refused to answer the two questions whether he was then a member of the Communist Party and whether, since a certain date, he had been a member. The Supreme Copurt affirmed the action of the school board in dismissing the teacher for this refusal. The court affirmed the dismissal, not because of his membership in any organization, ‘but because of his refusal to answer questions concerning matters which were relevant to his fitness for public employment.’ 44 Cal.2d 816, at page 825, 285 P.2d 617, at page 622.

Particularly applicable to the issues raised here (and decisive of this appeal) is the following language in the Steinmetz case:

‘Petitioner's discharge was not because of membership in a proscribed organization but because of his refusal to answer questions as to whether or not he held membership in the Communist Party. A governmental body may, of course, make reasonable inquiries into matters pertaining to the fitness of its employees. Loyalty on the part of those in public employment is important to orderly and dependable government and is, therefore, relevant to fitness for such employment. Pockman v. Leonard, 39 Cal.2d 676, 687, 249 P.2d 267. An employee's associates, as well as his conduct, are factors which may be considered by a state agency in determining his loyalty, and information on that subject may properly be elicited from him. Adler v. Board of Education, 342 U.S. 485, 492–493, 72 S.Ct. 380, 385, 96 L.Ed. 517 [27 A.L.R.2d 472]; Pockman v. Leonard, 39 Cal.2d 676, 685–687, 249 P.2d 267. In this connection, it has been held that a public employer may constitutionally require its employees to disclose any past or present membership in the Communist Party. Garner v. Board of Public Works, 341 U.S. 716, 720, 71 S.Ct. 909, 912, 95 LEd. 1317.’ Judgment affirmed.

I concur. Appellant strenuously argues that section 12604, subdivisions (d) and (e), of the Education Code is unconstitutional in requiring a teacher to answer questions concerning his knowing past or present membership in the Communist Party even though he might not have had knowledge of its suvbersive character. Any doubt on of its subversive character. Any doubt on Supreme Court in Steinmetz v. California State Board of Education, 44 Cal.2d 816, 823, 285 P.2d 617, 621, where that court said:

‘Statutes, such as the one involved here, which compel disclosure of information concerning a public employee's membership in proscribed organizations, must be distinguished from those which provide for discharge or disqualification because of membership or refusal to take an oath denying membership. Under the latter type of statute, knowledge of the character of the organizations has been held essential, Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216, and the legislation has been sustained only when it expressly or impliedly required such knowledge, Adler v. Board of Education, 342 U.S. 485, 494, 72 S.Ct. 380, 96 LEd. 517 [27 A.L.R.2d 472]; Garner v. Board of Public Works, 341 U.S. 716, 723–724, 71 S.Ct. 909, 95 LEd. 1317; Gerende v. Board of Supervisors [of Elections of Baltimore City], 341 U.S. 56, 57, 71 S.Ct. 565, 95 LEd. 745; Pockman v. Leonard, 39 Cal.2d 676, 685, 249 P.2d 267; Hirschman v. County of Los Angeles, 39 Cal.2d 698, 702, 249 P.2d 287, 250 P.2d 145. On the other hand, where the statutes provide merely for the disclosure of information, a requirement that the employee have knowledge of the nature of the organizations is not necessary. See Garner v. Board of Public Works, 341 U.S. 716, 719–720, 71 S.Ct. 909, 95 L.Ed. 1317; Adler v. Board of Education, 342 U.S. 485, 492–493, 72 S.Ct. 380, 96 L.Ed. 517 [27 A.L.R.2d 472].’

That court added, 44 Cal.2d at page 824, 285 P.2d at page 621: ‘A public employee, of course, cannot be forced to give an answer which may tend to incriminate him, but he may be required to choose between disclosing information and losing his employment.’

NOURSE, Presiding Justice.

KAUFMAN, J., concurs.