Reset A A Font size: Print

District Court of Appeal, First District, Division 1, California.

Rebecca P. WOLSTENHOLME, Petitioner and Appellant, v. CITY OF OAKLAND, a municipal corporation, County of Alameda, State of California; The Board of Library Directors of the Oakland Free Library of the City of Oakland, County of Alameda, State of California; et al., Respondents. *

Civ. 17875.

Decided: September 24, 1959

Albert M. Bendich, Staff Counsel, American Civil Liberties Union of Northern California, San Francisco, for appellant. John W. Collier, City Atty., Frederick M. Cunningham, Deputy City Atty., Oakland, for respondents.

Petitioner appeals from a judgment denying her petition for writ of mandate to restore her to her former position in respondents' library department.

Questions Presented.

1. Has the Legislature by the Luckel Act (Government Code, § 1028.1) precluded the imposition of local requirements?

2. Did petitioner satisfy the reuirements of that act?

3. Is the relief sought barred by laches?


Petitioner was employed by respondent library board from January, 1949, until her discharge, November 9, 1954, from her position as senior librarian by the Board of Library Directors. The board operates and manages the Oakland Free Library and has jurisdiction over petitioner's employment.

On September 20 and 23, 1954, hearings were had before the board with respect to petitioner's qualifications and suitability for public service. On the 20th, petitioner appeared without counsel and the hearing was continued to the 23rd. At that time, petitioner was sworn and refused to answer directly, on the advice of counsel, the following questions:

1. ‘Have you ever been a member of the Communist Party?’

2. ‘Prior to September 10, 1948 were you a member of the Communist Party?’

3. ‘Prior to September 10, 1948 have you ever attended any meeting of the Communnist Party?’

4. ‘In 1944 and 1945 were you a member of the Communist and Political Association of Milwaukee, Wisconsin?’

5. ‘In April of 1944 did you attend the Communist Party convention in the North Avenue Auditorium at Milwaukee, Wisconsin?’

6. ‘Do you mean to imply from your testimony today that prior to September 10, 1948 you were a member of the Communist Party?’

7. ‘Do you mean by your testimony here today that prior to September 10, 1948 you were a member of the Communist Party?’

8. ‘Were you associated with the Communist Party, and not a member, since Septmber 10, 1948?’

9. ‘Since September 10, 1948 have you been associated with members of the Communist Party?’

10. ‘Since September 10, 1948 have you had personal knowledge of any activities of the Communist Party in the City of Oakland?’

11. ‘Then I will ask you if within five years immediately preceding the 30th day of October, 1950, you were a member of the Communist Party?’

12. ‘At any time within three years immediately prior to your employment by the City of Oakland were you ever a member of the Communist Party?’

13. ‘I will ask you if at any time within the three years immediately prior to your employment by the City of Oakland, if you withdrew, resigned or quit the Communist Party for any reason?’

However, petitioner did testify that she was not presently a member of the Communist Party; that she had not been a knowing member since September 10, 1948; that since September 10, 1948, she had not knowingly attended any meetings of the Communist Party; that to the best of her knowledge there had never been any meetings of the Political Affairs Committee of the Communist Party or functionaries of the Party in her home; and that she does not personally advocate or have knowing membership in any organization advocating violent overthrow of the federal government. Mr. McNamara, Deputy City Attorney, then asked:

‘Q. Were you associated with the Communist Party, and not a member, since September 10, 1948? * * *

‘Mr. Speiser [counsel for petitioner]: I don't see how she can answer that question. I will advise her not to because I don't think the definition of the word ‘associated’ is such a clear one * * *

‘Director Razeto [of the Library Board]: Counsel, I believe the question is improper—the Party is a group. Why don't you ask her if she associates with Communist leaders or persons rather than just the entity of the party? * * *

‘Mr. McNamara: That may be. Q. For the purpose of the record, is your answer to my question that you refuse to answer on advice of counsel? A. On advice of counsel.

‘Q. Since September 10, 1948 have you been associated with members of the Communist Party? A. On advice of counsel I refuse to answer.’

Petitioner then testified that since September 10, 1948, she had not knowingly performed any services for the Communist Party, but, on advice of counsel, refused to answer whether since September 10, 1948 she had personal knowledge of any Party activities in Oakland. The refusal followed Mr. Speiser's objection to the broadness of the question. Thereafter Director Brown of the Library Board asked:

‘Q. Since September of 1948 have you been acquainted with anyone who has of your own knowledge—that you know was a member of the Communist Party? A. Of my own knowledge I have not been acquainted.

‘Q. Have you been acquainted with anyone since September 1948 who had espoused the theorites of the Communist Party? A. The answer is an previous: not of my own knowledge.

‘Q. * * * Have you ever had a conversation with a person since September 1948 who has advocated or indicated that membership in the Communist Party was a good thing? * * *

‘The Witness: No sir.

‘Director Brown: Q. Since September 10, 1948 have you ever had a serious discussion with anyone about membership in the Communist Party? A. No sir.

‘Q. Since September of 1948 have you personally read any documents, books, pamphlets or anything that has been published by the Communist Party? * * *

‘The Witness: To the best of my knowledge I have not.’

Thereafter, petitioner was discharged by resolution of the board on the basis of insubordination and misconduct in refusing to answer the thirteen questions specified above.

Petitioner appealed her dismissal to the

Petitioner appealed her dismissal to the Oakland Civil Service Board and a hearing time petitioner requested permission to answer and answered questions 8, 9 and 10 hereinbefore set out, stating that she had not knowingly since September 10, 1948, associated with the Communist Party or its members or had personal knowledge of its activities in Oakland, or elsewhere.

The Civil Service Board made findings of fact and conclusions of law, sustaining the action of the Board of Library Directors.

The trial court found the decision of the Civil Service Board to be supported by substantial evidence and that petitioner was guilty of insubordination and misconduct. The court also found that all the positions of senior librarian were filled by April 27, 1955; that this action was commenced June 6, 1956; that a vacancy for senior librarian existed June 6, 1956, until August 1, 1956; and that there would be one senior librarian retirement February 1, 1957, for which a replacement was performing the duties and would officially assume the position February 1, 1957. Petitioner was found to have delayed filing this action on counsel's advice that the United States Supreme Court's decision in Steinmetz v. California State Board of Education, 44 Cal.2d 816, 285 P.2d 617, would be determinative. Id., 351 U.S. 915, 76 S.Ct. 708, 100 L.Ed. 1448.

The court then held the Luckel Act does not occupy the field of investigation by local agencies, that petitioner has not been deprived of any constitutional right and that petitioner was guilty of laches and respondents prejudiced thereby.

1. The State Has Invaded the Field.

The Luckel Act provides: ‘It shall be the duty of any public employee who may be subpenaed or ordered by the governing body of the state or local agency by which such employee is employed, to appear before such governing body * * * and to answer under oath a question or questions propounded by such governing body * * * or a member or counsel thereof, relating to: * * * (d) Questions as to present knowing memvership of such employee in the Communist Party or as to past knowing membership in the Communist Party at any time since October 3, 1945.'1 An employee failing to answer such questions shall be guilty of insubordination and shall be suspended and dismissed from his employment.

If the subject matter of statewide legislation is of statewide concern, local control is impliedly precluded. Eastlick v. City of los Angeles, 1947, 29 Cal.2d 661, 177 P.2d 558, 170 A.L.R. 225. In Tolman v. Underhill, 1952, 39 Cal.2d 708, 249 P.2d 280, it was held: ‘There can be no question that the loyalty of teachers at the university is not merely a matter involving the internal affairs of that institution but is a subject of general statewide concern’ (39 Cal.2d at page 712, 249 P.2d at page 282) and that a resolution of the Regents of the University requiring additional assurances of nonmembership in the Communist Party to that in the Levering Act, Gov.Code, §§ 3103–3109, oath was void because the state by that act had taken over the filed. In Bowen v. County of Los Angeles, 1952, 39 Cal.2d 714, 249 P.2d 285, the petitioner who had taken a loyalty oath required by the board of supervisors but refused to take the Levering Act Oath, contended that the provisions of the Los Angeles county charter controlled. The court stated that ‘there can be no doubt that the loyalty of county employees is not exclusively a local affair but is a matter of general statewide concern,’ (39 Cal.2d at page 715, 249 P.2d at page 286) and that therefore by the Levering Act the state had fully occupied the filed of legislation on the subject of loyalty oaths for public employees. It is significant that in both of the above cases, while the court was dealing only with loyalty oaths, it based its decisions upon the fact that the question of loyalty of public employees generally was a matter of statewide concern.

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, 1952, 39 Cal.2d 676, 686–687, 249 P.2d 267; Steinmetz v. California State Board of Education, supra, 44 Cal.2d 816, 823, 285 P.2d 617. Information as to membership in the Communist Party is pertinent to fintenss for public employment. Steinmetz case, supra, 44 Cal.2d at page 825, 285 P.2d at page 622.

‘Although the adoption of local rules supplementary to state law is proper under some circumstances, it is well settled that local regulation is invalid if it attempts to impose additional requirements in a filed which is fully occupied by statute. [Citations.] Determination of the question whether the Legislature has undertaken to occupy exclusively a given filed of legislation depends upon an analysis of the statute and a consideration of the facts and circumstances upon which it was intended tneded to operate. [Citations.] Where the Legislature has adopted statutes governing a particular subject matter, its intent with regard to occupying the filed to the exclusion of all local regulation is not to be measured alone by the language used but by the whole purpose and scope of the legislative scheme. [Citations.]’ Tolman v. Underhill, supra, 39 Cal.2d at page 712, 249 P.2d at page 282.

Respondents purported to act under provisions of the Oakland city charter (Stats.1911, p. 1569) empowering the library borad to take testimony concerning any matter pending before the board (§ 20) and to establish rules and regulations for the conduct of its employees (§ 54). Respondents contend that the Luckel Act does not preclude a loyalty investigation by the local agency under this power. Ordinarily the employment of employees on the local level is primarily a municipal matter. See Dept. of Water and Power of City of Los Angeles v. Inyo Chemical Co., 1940, 16 Cal.2d 744, 753, 108 P.2d 410. But it does not appear reasonable to say that fitness for local public employment in respect to loyalty to federal and state government is a matter of purely local concern. The fact that communities differ in population and in geography is no reason for concluding loyalty to be, as contended by respondents, a local matter. Loyalty is not a matter of geography or size of community.

Just as in the Tolman case, supra, 39 Cal.2d at page 712, 249 P.2d at page 282, it was stated that loyalty of teachers at the university is not merely a university matter but a subject of general statewide concern, so is loyalty of librarians whose contract with youth and adults alike place them in a strategic position to spread propaganda, should they so desire, a matter of more than local concern.

Moreover, it would create a rather anomalous situation to hold as the cases hereinbefore cited have held that the Legislature intended to occupy the filed with relation to loyalty oaths, and then to hold that as to investigations of loyalty the Legislature did not so intend. Taking ‘the whole purpose and scope of the legislative scheme’ (Tolman v. Underhill, supra, 39 Cal.2d at page 712, 249 P.2d at page 283), it is clear that the Legislature provided general statutes embodying a general declaration of policy, providing for loyalty oaths, and prescribing the areas in which inquiries concerning loyalty as basis for fitness for public employment may be addressed by their employers to public employees, either state or local.

Therefore it appears that the Legislature intended to limit questions of the kind embraced in the act to those concerning an employee's membership in the Communist Party and connection with it or its members since the date set forth in the act, and all inquirty concerning the employee's situation prior to that date is precluded.

Section 1028.1 added to the Government Code by the Luckel Act (Stats.1953, ch. 1646) is substantially identical to sections. 12604 and 12605 added to the Education Code by the Dilworth Act (Stats.1953, ch. 1632), both acts being adopted in 1953. However, in the Dilworth Act the Legislature inserted the following provision: ‘Nothing in this act is intended or shall be construed to limit or restrict the rulemaking power of governing boards of school districts. Any rule, regulation or order heretofore adopted on this subject by any such governing board is hereby validated and declared to be fully and completely effective to the extent it is consistent with this act and any such rule, regulation or order shall only be superseded by this act to the extent inconsistent with this act.’ Stats.1953, pp. 3343–3344. Thus it appears that as to school employees the Legislature declared, in effect, that it was not completely preempting the filed covered by the Dilworth Act. No such declaration appears in the Luckel Act. The omission of such declaration is significant.

2. Did Petitioner Answer?

Eliminating questions dealing with a time prior to September 10, 1948, which, as we have shown, the board was not empowered to ask, petitioner answered substantially all other questions. Respondents contend that in petitioner's failure at first to answer questions 8, 9 and 10 she was guilty of insubordination. However, it appears that while she did not answer these questions because her attorney advised her that the word ‘associated’ in them was too vague, she, in effect, answered them before the questioning ended. Director Razeto seemed to agree that at least question 8 was vague. Later Director Brown asked more detailed questions about ‘association’ with members of the Communist Party which petitioner answered. Were it not for the board's belief that it was entitled to ask her question upon matters prior to the cut-off date, it is doubtful if it would have found petitioner insubordinate for following the advice of an over-technical counsel when she later answered the questions in another form. Therefore the finding of insubordination is not supported, and petitioner was improperly deprived of her position.

3. Laches.

Petitioner was discharged November 9, 1954. The Oakland Civil Service Board affirmed that action December 14, 1954. This action was filed June 6, 1956, approximately 18 months thereafter. The existence of laches is a factual question and the determination of the trial judge will not be disturbed unless the conclusion is not reasonably supported by the evidence. Brown v. State Personnel Board, 1941, 43 Cal.App.2d 70, 77, 110 P.2d 497. Laches is an unreasonable delay in asserting a right which causes such prejudice to an adverse party as renders the granting of relief inequitable. Butler v. Holman, 1956, 146 Cal.App.2d 22, 28, 303 P.2d 573. Considerations of public policy require that a public employee who claims to have been wrongfully discharged must act with utmost diligence in asserting his rights. If he does not, prejudice from his delay will be presumed. Newman v. Board of Civil Service Com'rs, 1956, 140 Cal.App.2d 907, 909, 296 P.2d 41.

What constitutes a sound excuse must depend upon the circumstances of each case. Petitioner pleaded as an excuse and the court found that the delay was occasioned by the advice of petitioner's counsel that litigation might be entirely avoided in her case if Steinmetz v. California State Board of Education, supra, 44 Cal.2d 816, 285 P.2d 617, certiorari denied 351 U.S. 915, 76 S.Ct. 708, 100 L.Ed. 14482 were decided favorably to petitioner's position. In that case an associate professor at San Diego State College was dismissed under the Luckel Act because of his refusal to answer two questions as to whether he was or had been a member of the Communist Party since September 10, 1948. Since the validity of that act, and, more generally, the scope of loyalty examinations, were in question, it was reasonable for counsel to await the outcome of the Steinmetz case which might have clarified the validity of petitioner's discharge. The fact that a hearing was granted and the outcome was pending constitutes grounds for delay, not as respondents contend, speculation as to the outcome. Further it appears that respondents were not prejudiced by the delay. The court found that all positions of senior librarian were filled by April 27, 1955 (4 1/2 months after the Civil Service Board's determination). One position was open at the time of the filing of this action, although all positions were filled at the time of the trial court's judgment. Thus it appears that the filing of the suit did not deter respondents from filling a vacancy, and that all vacancies would have been filled regardless of when petitioner filed suit. In Duncan v. Summerfield, 1957, 102 U.S.App.D.C. 185, 251 F.2d 896, the discharged employee did not file suit until approximately 2 years 8 months after his dismissal, giving as his excuse that he was awaiting the outcome of a suit by another employee discharged for the same reasons he was discharged. The court held: ‘* * * a dismissed government employee acts reasonably, and is not guilty of laches, if he awaits the result of a suit by another employee who was dismissed in similar circumstances.’ (251 F.2d at page 897. Cited to the same effect in that case are Kaufman v. United States, 1950, 93 F.Supp. 1019, 1021, 118 Ct.Cl. 91; State ex rel. Prior v. Kansas City, Mo.1924, 261 S.W. 112, 114; State ex rel. Kauffman v. Campbell, 1938, 59 Ohio App. 461, 18 N.E.2d 616; State ex rel. Exnicios v. Board of Com'rs, 1923, 153 La. 705, 96 So. 539; People ex rel. Tierney v. Scannell, 1899, 27 Misc. 662, 59 N.Y.S. 679; City of San Antonio v. Castillo, Tex.Civ.App.1956, 293 S.W.2d 691.) As to the contention that the government was prejudiced by the delay because it had replaced him, the court said: ‘But it cannot reasonably be assumed that if a man dismissed for security reasons in 1954 had immediately sued, or given notice that he might sue, his job would have been kept open for him.’ 251 F.2d at pages 897–898. In our case it appears that petitioner's job would not have been kept open for her.

Petitioner did not seek back pay in her position and at the trial offered to make an explict waiver of it. In Ford v. Civil Service Commission, 1958, 161 Cal.App.2d 692, 327 P.2d 148, where 13 months elapsed from the final order of discharge before an effective petition was filed, the court said (161 Cal.App.2d at page 694, 327 P.2d at page 149): ‘Appellant apparently made no claim to back salary, but only for reinstatement, and therefore any defense of laches by the respondents under the particular facts here set forth is not well taken.’ The court referred to cases such as Hayman v. City of Los Angeles, 1936, 17 Cal.App.2d 674, 680, 62 P.2d 1047, where the petition for writ of mandate by the discharged employee was not filed for some 9 months after his discharge. The court said (17 Cal.App.2d at page 680, 62 P.2d at page 1050): ‘It is not the lapse of time so much as it is the consequences of the delay which goes to make up the defense of laches.’ The court then pointed out that if reinstated the petitioner would undoubtedly claim back pay, which would be for services which he had not rendered but which had been performed by others who had been compensated therefor, and that the public would thereby be prejudiced.

In Kimberlin v. Los Angeles City High School Dist., 1953, 115 Cal.App.2d 459, 465, 252 P.2d 344, the court seems to hold that even though a discharged employee waives back pay the public is prejudiced if reinstatement is made because the employee's successor cannot be removed without cause and therefore there would be an additional financial burden due to the addition of the petitioner to the payroll. This, however, is specious reasoning as applied to the facts of our case, because it appears, as heretofore shown, that the board would have filled the vacancy no matter when the court proceeding was filed. It appears here that, as was said in Duncan v. Summerfield, supra, 102 U.S.App.D.C. 185, 251 F.2d 896, 897, the employer is prejudiced by the wrongful discharge of the employee but not by the employee awaiting the result of another suit before bringing his own. Likewise it would appear that the reasoning in Newman v. Board of Civil Service Com'rs, supra, 140 Cal.App.2d 907, 296 P.2d 41, should not be applied to the facts of this case. There a delay of 15 months occurred. The court held that lack of funds was not a sufficient excuse for such delay, and that the petitioner was guilty of laches in that delay. It stated that even though the petitioner waive her claim for back pay, that fact did not entirely eliminate prejudice to the city, in that reinstating her in her old position would displace her successor, who in turn would displace another employee, to the detriment of the morale of the department and to its efficiency and effectiveness. The court then said that inasmuch as the work of the department where the petitioner was employed must go on, the presumption is that the petitioner's position was promptly filled after her discharge. Thus, if the work must go on, someone would have to fill the vacancy, regardless of prompt notice or suit. In any event, in our case the act of the respondents in filling a vacancy after petitioner's suit was filed shows that respondents would not have kept open any position for petitioner, regardless of when suit might be filed or notice of intention to sue given.

Callender v. County of San Diego, 1958, 161 Cal.App.2d 481, 327 P.2d 74, is not in point. There there was a conflict as to whether there was an agreement between the petitioner's attorney and the respondents' attorney to hold in abeyance any further proceedings until the final determination of the Steinmetz case. However, after the ending of that case by the action of the United States Supreme Court, the petitioner sought reinstatement which was denied. He then waited over 5 months before filing suit, making a total period of over 2 years since his discharge. No attempt was made to excuse this latter delay.

The judgment is reversed.


1.  Prior to the amendment of Stats.1957, p. 3731, this date was ‘September 10, 1948.’ Apparently everyone connected with the investigation assumed that the latter date was the cutoff date under the act. Therefore, we will treat it as such for the purposes of this case.

2.  The Steinmetz case was decided by the District Court of Appeal, Third District, June 22, 1954, 271 P.2d 614. A hearing by the Supreme Court was granted August 19, 1954, approximately three months before petitioner's discharge.

BRAY, Presiding Justice.

FRED B. WOOD and TOBRINER, JJ., concur.

Copied to clipboard