IN RE: Robert F. Webb. et al.

Reset A A Font size: Print

IN RE: Robert F. Webb. et al., Petitioners.

Nos. 14528, 14539

Decided: October 27, 1975

Before MOLINARI, PJ, SIMS and ELKINGTON, JJ.

Opinion

Petitioners seek review by way of a petition for habeas corpus of an order finding them in contempt of court in pursuance of which they were sentenced to be punished by serving five days in jail.

For some time prior to the instant contempt adjudication petitioners, other than petitioner Webb, had been employed and served in the capacity of court clerks for the Superior Court of the State of California in and for the County of Santa Clara. Webb had been employed and served in the capacity of court reporter for said court. Petitioners were also members of a labor union which had called a strike against the County of Santa Clara. When the strike was called they did not appear for work. However, they voluntarily appeared in open court with counsel before Honorable H. Bruce Allen, the presiding judge of said superior court. Judge Allen advised petitioners that he expected them to perform their duties and that their absence had interfered with and disrupted the work of the court. Petitioners took the position that they had a right to withhold their services. When Judge Allen ordered petitioners to return to work they refused. Judge Allen thereupon found them in contempt.

The basis of the finding of contempt was that petitioners had committed acts and omissions, constituting a direct contempt, which are proscribed by subdivision 3 and 8 of Code of Civil Procedure section 1209. That statute, in pertinent part, provides as follows: ‘The following acts or omissions in respect to a court of justice, or proceedings therein, are contempts of the authority of the court: . . . 3. Misbehavior in office, or other wilful neglect or violation of duty by an attorney, counsel, clerk, sheriff, coroner, or other person, appointed or elected to perform a judicial or ministerial service; . . . 8. Any other unlawful interference with the process or proceedings of a court; . . .’

It is undisputed that petitioners were public employees who performed ministerial services for the Superior Court of the County of Santa Clara. It is also undisputed that their refusal to work was solely predicated on the basis that as members of a union which was on strike against the county they were justified in their refusal to work because they were in sympathy with the strike and its objectives and because, as union members, they were precluded by their union from crossing the picket line which the union had placed at the entrance to the courthouse.

Petitioners contend that the order adjudicating them in contempt was beyond the court's jurisdiction, was in excess of law and without judicial authority or legal basis of any kind whatsoever. In considering these contentions I first observe that the court's order was based on the rationale that the absence of petitioners constituted wilful neglect of their duties, causing a serious interference with court proceedings, and that the trial judge did not indicate that his order was based on the principle that public employees do not have a right to strike. However, in its return to the order to show cause issued herein respondent court asserts, in addition to the principle relied upon by Judge Allen, that public employees do not have the right to strike and therefore a valid excuse did not exist for the withholding of their labor.

It is significant to note that neither in their petition for habeas corpus nor at the oral argument on the order to show cause did petitioners assert or urge that they have a ‘right to strike.’ The thrust of the position taken by them is that they have a constitutional right to withhold their labor under the Thirteenth Amendment to the federal Constitution and section 6 of article I of the California Constitution prohibiting slavery and involuntary servitude.1

Notwithstanding the seeming reluctance of the parties to focus upon the question whether a public employee has a right to strike, I apprehend this question to be the fulcrum upon which the resolution of the instant case turns. The other issues are peripheral to this question.

At first blush it appears that the distinction between the ‘right to strike’ and the ‘right to withhold one's labor’ is purely metaphysical-that it is a distinction without a difference. Upon closer scrutiny I perceive that there is a valid distinction between the two concepts. The ‘right’ to withhold one's labor means purely and simply that a person cannot be compelled to perform labor against his will. This is a constitutional right. (U.S. Const., 13th Amend., § 1; Cal. Const., art. I, § 6; Pollock v. Williams, 322 U.S. 4, 17 [88 L.Ed. 1095, 1103, 64 S.Ct. 792]; Jennings, The Right to Strike: Concerted Activity Under the Taft-Hartley Act, 40 Cal.L.Rev. 12, 14.) On the other hand, there is no constitutional right to strike. (Auto. Workers v. Wis. Board, 336 U.S. 245, 259 [93 L.Ed. 651, 665-666, 69 S.Ct. 516]; Dorchy v. Kansas, 272 U.S. 306, 311 [71 L.Ed. 248, 269, 47 S.Ct. 86]; City of L.A. v. Los Angeles etc. Council, 94 Cal.App.2d 36, 41 [210 P.2d 305]; ‘The Right to Strike,’ supra.) Nor does the common law confer the absolute right to strike. (Auto. Workers v. Wis. Board, supra; Dorchy v. Kansas, supra.) Accordingly, the ‘right to strike may be regulated and controlled in the public interest.’ (‘The Right to Strike,’ supra, at p. 15; Auto Workers v. Wis. Board, supra.) Moreover, although not constitutionally protected, the ‘right to strike’ may be given statutory protection. ‘The Right to Strike,’ supra.)

The general concept of ‘withdrawal of labor’ is that the employee who withdraws his labor quits his employment. (See Trustees of Cal. State Colleges v. Local 1352,) S.F. State etc. Teachers, 13 Cal.App.3d 863, 867 [92 Cal.Rptr. 134]; ‘The Right to Strike,’ supra, 40 Cal.L.Rev., 12, 14.) However, employees who ‘strike’ do not quit, they merely cease their work and not their employment. (‘The Right to Strike,’ supra.) When employees ‘strike’ the relation of employer and employee continues, the ‘strike’ being only a means of enforcing compliance with some demand made on the employer. (Motion Picture Mach. P.P.U., etc. v. Rialto Theatre Co., 25 Del. Ch. 347 [[3 LC ¶60,275] 17 A.2d 836, 842]; Kitchen v. G.R. Herberger's, Inc., 262 Minn. 135 [114 N.W.2d 64, 67]; ‘The Right to Strike,’ supra.) As succinctly stated in Fontaine v. Board of Review of Dept. of Emp. Sec., 100 R.I. 137 [210 A.2d 867, 870], ‘In employer-employee relationships the word [‘strike’] in general connotes a controversy of some degree where there is a cessation of work by employees in an effort to get compliance with demands made upon their employer.' (See Pierce v. Stablemen's Union, 156 Cal. 70, 75-76 [103 P. 324].)

The ‘right to strike’ contemplates a lawful strike. (Auto. Workers v. Wis. Board, supra, 336 U.S. 245, 259; Dorchy v. Kansas, supra, 272 U.S. 306, 311; City of L.A. v. Los Angeles etc. Council, supra, 94 Cal.App.2d 36, 41.) In this state a lawful strike may be conducted against an ordinary employer in private industry. (McKay v. Retail Auto. S.L. Union No. 1067, [3 LC ¶60,098] 16 Cal.2d 311, 319 [106 P.2d 373]; Shafer v. Registered Pharmacists Union, [30 LC ¶60,103] 16 Cal.2d 379, 382 [106 P.2d 403]; Pierce v. Stablemen's Union, supra, 156 Cal. 70, 75-76.) However, absent an authorizing statute, a public employee has no right to strike.2 (Los Angeles Met. Transit Authority v. Brotherhood of Railroad Trainmen, 54 Cal.2d 684, 687 [8 Cal.Rptr. 1, 355 P.2d 905]; Los Angeles Unified School Dist. v. United Teachers, 24 Cal.App.3d 142, 145 [67 LC ¶52,802] [100 Cal.Rptr. 806]; Trustees of Cal. State Colleges v. Local 1352, S.F. State etc. Teachers, supra, 13 Cal.App.3d 863, 867; City of San Diego v. American Federation of State etc. Employees, [63 LC ¶52,349] 8 Cal.App.3d 308, 310-311 [87 Cal.Rptr. 258];3 Almond v. County of Sacramento, 276 Cal.App.2d 32, 35-36 [[61 LC ¶52,146] 80 Cal.Rptr. 518]; Pranger v. Break, 186 Cal.App.2d 551, 556 [9 Cal.Rptr. 293] [cert. den., 366 U.S. 964 (6 L.Ed.2d 1256, 81 S.Ct. 1919)]; see In re Berry, 68 Cal.2d 137, 151 [65 Cal.Rptr. 273, 436 P.2d 273]; and see Newmarker v. Regents of Univ. of Cal., [35 LC ¶ 71,629] 160 Cal.App.2d 640, 646 [325 P.2d 558], where the holding appears to be that a strike against a public entity is unlawful and no qualification is recognized that such a strike could be lawful if sanctioned by legislative authority;4 and City of L.A. v. Los Angeles etc. Council, supra, 94 Cal.App.2d 36, 47-48.)

There is no legislative enactment by the California legislature which expressly authorizes strikes by public employees. (See Trustee of Cal. State Colleges v. Local 1352, S.F. State etc. Teachers, supra, 13 Cal.App.3d 863, 867; Almond v. County of Sacramento, supra, 276 Cal.App.2d 32, 36-38.) Statutory authority was found to exist in Los Angeles Met. Transit Authority, supra, 54 Cal.2d 684. But this was a unique situation which applied to a public corporation operating facilities for the transportation of passengers in four counties and organized under the Los Angeles Metropolitan Act (Stats. 1957, ch. 547, as amended in 1959 [Stats. 1959, ch. 519]), where private transit companies were acquired by the public corporation which was organized pursuant to the Act. The Act provided for the right of employees to, among other things, “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” (At p. 687.) This provision was held to include the right to strike. (At pp. 687-693.) Los Angeles Met. Transit Authority distinguishes City of L.A. and Newmarker by pointing out that in those cases the public employees did not have the benefit of the legislation enjoyed by the public employees in the case at bench. (54 Cal.2d at p. 691.)

The rationale of the rule against strikes by public employees has been variously stated. (See 37 A.L.R.3d 1147, 1150-1151 and cases there cited.) It is grounded on public policy with due consideration to the paramount obligation reposing in public employees to perform necessary and vital governmental functions, and generally relates to the fundamental differences between private and public employment in the manner in which the employment is obtained, the terms and conditions of employment are fixed, and labor demands and disputes are processed and settled. (See City of San Diego v. American Federation of State etc. Employees, supra, 8 Cal.App.3d 308, 312-313.)

Suffice it to say, public employees do not have the right to strike in this state. Strikes by public employees have been declared to be illegal and unlawful by the highest courts of this state through a succession of decisions dating back to 1949. Petitioners in this case are presumed to have known the law as so declared. They do not contend otherwise. Certainly the union to which petitioners belong, its attorneys and petitioners' attorneys were or should have been acquainted with the law of this state as respects the right of public employees to strike.

Petitioners were clearly engaged in a strike against their public employer. Their work stoppage was undeniably for the purpose of obtaining compliance with their demands upon their employer to obtain higher wages and other concessions, or in sympathy with similar demands by other public employees who were also on strike. Notwithstanding the fact that their strike was illegal and unlawful, petitioners nevertheless ceased their work in a concerted effort to compel their employer to meet their demands and those of the other striking public employees. In view of the indisputable facts they may not now assert that they were not engaged in a strike. They were at liberty, however, to withdraw their labor by quitting their employment. (Trustees of Cal. State Colleges v. Local 1352, S.F. State etc. Teachers, supra, 13 Cal.App.3d 863, 867; see Auto. Workers v. Wis. Board, supra, 336 U.S. 245, 251 [93 L.Ed. 651, 661].) ‘The right of a public employee to do so, however, does not mean that he has a right to strike. [Citation.]’ (Trustees of Cal. State Colleges v. Local 1352, S.F. State etc. Teachers, supra.)

When petitioners undertook to withdraw their labor by engaging in a strike they effectively terminated their employment. Since a public employee does not have the right to strike his cessation or withdrawal of his labor by way of a strike is tantamount to a termination of the employment relationship. (Trustees of Cal. State Colleges v. Local 1352, S.F. State etc. Teachers, supra, 13 Cal.App.3d 863, 867; Newmarker v. Regents of Univ. of Cal., supra, 160 Cal.App.2d 640, 647.) As observed in Newmarker, ‘The common-law rule which applies here is that a strike terminates the employment relationship.’ (At p. 647.)

When petitioners terminated their employment by virtue of their strike against their public employer the employer was at liberty to employ and engage other persons to perform work previously performed by petitioners.5 However, since petitioners had quit their employment they were no longer under the control or direction of their employer. Hence, they could not be ordered to perform the duties incident to their former employment because, having elected to exercise their constitutional right to withhold their services, they were no longer employees of the County of Santa Clara. Accordingly, since the employment relationship no longer existed they could not be found in contempt for refusing to perform duties which they were not obliged to perform. Code of Civil Procedure section 1209 contemplates that the person wilfully neglecting or refusing to perform the duty enjoined upon him must be an officer or employee of the court.

We apprehend that had the court employed other persons to perform the duties previously performed by petitioners, any unlawful interference by any person with the employees replacing petitioners in the performance of such duties and the process or proceedings of the court would come within the purview of the proscription provided for in Code of Civil Procedure section 1209.

The recent case of City and County of San Francisco v. Cooper, 13 Cal.3d 898 [120 Cal.Rptr. 707, 534 P.2d 403], is not dispositive of the issue before us. That case holds that the illegality of a strike does not necessarily taint any agreement entered into by a public employer to end the strike. (At pp. 911-918.) We perceive, therefore, that absent any constitutional, statutory or charter limitations, a public employer may, through its legally constituted authority, enter into an agreement as a part of a strike settlement, reinstating employees who lost their employment because they engaged in a strike against the public employer. In East Bay Mun. Employees Union v. County of Alameda, 3 Cal.App.3d 578 [83 Cal.Rptr. 503], cited with approval in Cooper, the Court of Appeal held that an agreement which a public employer was authorized to make reinstating, without prejudice and in accordance with civil service regulations, employees who had engaged in a strike against their public employer was valid and binding on all parties. (At p. 584.) As pointed out in Cooper, the manner in which legislators respond to demands voiced through an illegal strike is a matter of policy judgment for which the legislator is directly responsible to the electorate. (13 Cal.3d at p. 918.)

In view of the conclusion reached I will not consider the several alleged infirmities in the contempt proceedings asserted by petitioners.

(1) The order to show cause is discharged. Petitioners' request for a writ of habeas corpus is granted and they are hereby released from the restraint of the judgment against them.

I concur in the decision that the petitioners MENIKTOS, BENNETT and MEDINA in proceeding No. 1 Crim. 14518, and petitioner NICHOLAS in proceeding No. 1 Crim. 14539, should each be released from the restraint imposed upon him by the respective orders of the superior court.1 I do not, however, subscribe to the proposition that ‘the question of whether a public employee has a right to strike [is] the fulcrum upon which resolution of the instant case turns.’

In my opinion the contempt power or other criminal sanctions cannot be used to force a person to work under the circumstances appearing in the record of this case. If the employee violates a condition of his employment by refusing to work without just cause the remedy of the employer is to terminate his employment, and if appropriate, to seek and have or have not employee for any loss thereby occasioned. (See Jennings, The Right to Strike: Concerted Activity Under the Taft-Hartley Act (1952) 40 Cal.L.Rev. 12, 46-47.) This case does not involve withdrawal from employment in a situation whereby the terms of the contract of employment the employee has agreed not to strike, and a court has sought to impose sanctions for breach of that agreement. Nor does it involve a breach of a court imposed prohibition against concerted picketing or other strike related activity which the employee agreed to forego in the contract of employment, or which is prohibited by an express penal statute. (See Auto Workers v. Wis. Board (1949) 336 U.S. 245, 251 [93 L.Ed. 651, 661, 69 S.Ct. 516]; and Trustees of Cal. State Colleges v. Local 1352, S.F. State etc. Teachers (1970) 13 Cal.App.3d 863, 867 [92 Cal.Rptr. 134].) The sole question is whether the summary contempt power may be used to compel the unwilling performance of a contract of employment, or to punish failure to perform. It may be assumed for argument that the withholding of their services by the petitioners was unlawful and without justification. It is unnecessary to determine whether public employees not have or have a right to strike.

The orders in each case purport to be predicated upon the provisions of section 1209 of the Code of Civil Procedure which provide: ‘The following acts or omissions in respect to a court of justice, or proceedings therein, are contempts of the authority of the court: . . . [¶] 3. Misbehavior in office, or other wilful neglect or violation of duty by an attorney, counsel, clerk, sheriff, coroner, or other person, appointed or elected to perform a judicial or ministerial service; . . . [¶] 8. Any other unlawful interference with the process or proceedings of a court; . . .'2

In support of the orders it is urged that a clerk as an officer of the court is subject to punishment either summarily or, if the contempt was not committed in the immediate view and presence of the court, after notice and hearing. (See Code Civ. Proc., §§ 1211, 1211.5, 1212-1216, 1217 and 1218.) Reliance is placed upon those precedents in which punishment for contempt has been upheld under the foregoing provisions with respect to an attorney (Arthur v. Superior Court (1965) 62 Cal.2d 404, 409-412 [42 Cal.Rptr. 441, 398 P.2d 777]; Hawk v. Superior Court (1974) 42 Cal.App.3d 108, 116-117, 126-127, 127-128, 128-129, 129-130 and 130 [116 Cal.Rptr. 713]; and Thorne v. Municipal Court (1965) 237 Cal.App.2d 249, 251-252 [46 Cal.Rptr. 749]), and a reporter (Williams v. Davis (1946) 27 Cal.2d 746, 751 [167 P.2d 189]; and Rappaport v. Superior Court (1940) 39 Cal.App.2d 15, 21-22 [102 P.2d 526]).

Analysis of the foregoing provisions and precedents indicate to me that the act or omission involved must refer specifically to the person presiding over the court of justice or to particular proceedings pending therein, and that they are not to be applied to the general employment of the persons mentioned in subdivision 3 of section 1209. In like vein the withholding of his labor by anyone or several clerks, although it interferes with the process or proceedings of the court, only does so in the general sense that any absence for illness or other cause does. A replacement must be secured if the business of the court is to go on. As pointed out above, if it is necessary to secure a general proscription against concerted activity appropriate proceedings should be taken to enjoin that activity, but section 1209 is not designed to that end.3

The foregoing conclusion renders it unnecessary to consider the contention of the petitioners in the first action that the procedure followed was inadequate because the court did not power to punish the clerks summarily for failure to appear in another courtroom, and because the affidavit of the assistant court executive officer reporting the absence of the petitioners was inadequate to form the basis for contempt charges. (See Arthur v. Superior Court, supra, 62 Cal.2d 404, 407-409; and Thorne v. Municipal Court, supra, 237 Cal.App.2d 249, 252.)

The situation here is governed by the Thirteenth Amendment to the United States Constitution which provides: ‘Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.’ A similar restraint is recognized in section 6 of Article I of the Constitution of this state which reads, ‘Slavery is prohibited. Involuntary sertivude is prohibited except to punish crime.’ The general principle is recognized in section 3390 of the Civil Code which provides in part: ‘The following obligations cannot be specifically enforced: [¶] 1. An obligation to render personal service; . . .'4

In Parkinson Co. v. Bldg. Trades Council (1908) 154 Cal. 581 [98 P. 1027], the court observed, ‘To enjoin men from not working would be wholly ineffective unless there resides in the courts a power to compel them to go to work. But there is no such power. A court of equity cannot even enforce specifically a contract for personal services, and much less can it enforce the performance of such services in the absence of any contract.’ (154 Cal. at p. 603.) In Poultry Producers etc. v. Barlow (1922) 189 Cal. 278 [208 P. 93], the court in adopting an opinion of the District Court of Appeal, recognized: “The rule that equity will not specifically enforce an obligation to render personal service has been assigned three distinct reasons for its existence. Some courts have based the rule upon the fact that it would be an invasion of one's statutory liberty to compel him to work for, or to remain in the personal service of, another. It would place him in a condition of involuntary servitude-a condition which the supreme law of the land declares shall not exist within the United States, or in any place subject to their jurisdiction. . . .” (189 Cal. at p. 288. See also Trustees of Cal. State Colleges v. Local 1352, S.F. State etc. Teachers, supra, 13 Cal.App.3d 863, 867; 7 Witkin, Summary of Cal. Law (8th ed. 1974) Equity, § 48, p. 5270.)

The United States Supreme Court has construed the Thirteenth Amendment as follows: ‘The undoubted aim of the Thirteenth Amendment as implemented by the Antipeonage Act was not merely to end slavery but to maintain a system of completely free and voluntary labor throughout the United States. Forced labor in some special circumstances may be consistent with the general basic system of free labor. For example, forced labor has been sustained as a means of punishing crime, and there are duties such as work on highways which society may compel. But in general the defense against oppressive hours, pay, working conditions, or treatment is the right to change employers. When the master can compel and the laborer cannot escape the obligation to go on, there is no power below to redress and no incentive above to relieve a harsh overlordship or unwholesome conditions of work. Resulting depression of working conditions and living standards affects not only the laborer under the system, but every other with whom his labor comes in competition. Whatever of social value there may be, and of course it is great, in enforcing contracts and collection of debts, Congress has put it beyond bebate that no indebtedness warrants a suspension of the right to be free from compulsory service. This congressional policy means that no state can made the quitting of work any component of a crime, or make criminal sanctions available for holding unwilling persons to labor. The federal statutory test is a practical inquiry into the utilization of an act as well as its mere form and terms.’ (Pollock v. Williams (1944) 322 U.S. 4, 17-18, fns. omitted [88 L.Ed. 1095, 1103-1104, 64 S.Ct. 792]. See also Auto Workers v. Wis. Board, supra, 336 U.S. 245, 251. Cf., in addition to instances referred to above, Robertson v. Baldwin (1897) 165 U.S. 275 [41 L.Ed. 715, 17 S.Ct. 326] [merchant seamen who are treated ‘as deficient in that full and intelligent responsibility for their acts which is accredited to ordinary adults . . ..’ (165 U.S. at p. 287 [41 L.Ed. at p. 719]).]

I would relieve the petitioners of the restraint ordered by the contempt orders because the orders violate the above principles.

I dissent: In my respectful opinion, this group has now developed a sort of rationalization which allows a group of court attachés, by agreement and concerted action, to deny to the state's superior courts the ability to perform their constitutionally prescribed duties.

During a strike against the County of Santa Clara certain of its employed had agreed, not to quit their employment, but instead to ‘withdraw their services' until the strike's termination. Fifteen court clerks, together with ‘deputy clerks and file clerks' and court reporters, without warning to the court, did not appear for work. As a result there was a ‘total disruption of trials in progress,’ pending cases could not be filed, writs were not issued and records were not kept. Citizens were denied effective access to the courts, and judges, and persons called for jury service, remained idle. The situation was described by the presiding judge of the superior court as ‘chaos.’

Until now the universal rule has been that: ‘A court set up by the Constitution has within it the power of self-preservation, indeed, the power to remove all obstructions to its successful and convenient operation.’ (Italics added; Millholen v. Riley, 211 Cal. 29, 33 [293 P. 69]; Rivas v. County of Los Angeles, 195 Cal.App.2d 406, 409-410 [15 Cal.Rptr. 829]; and see Brydonjack v. State Bar, 208 Cal. 439, 442 [281 P. 1018, 66 A.L.R. 1507]; Bloniarz v. Roloson, 70 Cal.2d 143, 147-148 [74 Cal.Rptr. 285, 449 P.2d 221]; Kirstowsky v. Superior Court, 143 Cal.App.2d 745, 753 [300 P.2d 163]; 20 Am.Jur.2d, Courts, §§ 78, 79, pp. 439-441.)

The power of a constitutional court to ‘remove all obstructions to its successful and convenient operation’ rests upon the sanctions of contempt. It is said that the ‘[court's] very existence depends upon the exercise of such power.’ (Italics added; In re Garner, 179 Cal. 409, 411 [177 P. 162] [disapproved on unrelated point by In re Lynch, 8 Cal.3d 410, 424, fn. 15 [105 Cal.Rptr. 217, 503 P.2d 921]]; and see In re McKinney, 70 Cal.2d 8, 10-12 [73 Cal.Rptr. 580, 447 P.2d 972].)

Code of Civil Procedure section 1209 provides, as relevant here: ‘The following acts or omissions in respect to a court of justice, or proceedings therein, are contempts of the authority of the court: . . . 3. Misbehavior in office, or other wilful neglect or violation of duty by [a] clerk . . . or other person, appointed or elected to perform a . . . ministerial service.’

Upon appointment to his office each of the petitioning court clerks took an oath ‘. . . that I will well and faithfully discharge the duties upon which I am about to enter.’ (Italics added; Cal. Const., art. XX, § 3; Gov. Code, § 3103.)

And it has long been held that court clerks, as with all public officers, ‘should be held to a faithful performance of their official duties, . . .’ (Lick v. Madden, 36 Cal. 208, 213.)

This court holds today that petitioners are not to be bound to the sworn and promised ‘faithful performance’ of their duties as officers of the court. The rationale is accomplished by indulging in the pretense (1) that having quit their employment, petitioners ‘were no longer under the control or direction’ of the court, and (2) that holding them to their pledge of faithful performance would subject them to the ‘involuntary servitude’ proscribed by the Thirteenth Amendment.

With abundant clarity, the record establishes that the striking court clerks did not intend to, and did not, quit their valued civil service positions. Each, the presiding judge of the court found, wanted ‘to keep his job and not work’ during the strike. They declined the judge's suggestion, ‘if you desire to terminate your employment you can’; and his statement that as long as they were clerks ‘of the Civil Service status,’ ‘you have an obligation to be here on duty,’ went unheeded. They, and their attorney, reiterated that they had but ‘withdrawn their labor.’ Each was characterized by the attorney, not as having quit his employment, but instead as one ‘who is considered to have withdrawn his labor or is a striker.’ The attorney also promised that ‘some day [i.e., at the strike's end] everybody will return to work.’

The fiction that the striking court clerks had quit their jobs and were accordingly permitted to withhold their labor, seems to me to be wholly unrelated to reason and reality. In my respectful opinion it furnishes no legal excuse for the disruption by planned and concerted action, of the superior court's business, and the blatant defiance of settled law and the presiding judge's orders. Nor does it somehow validate the repudiation by the petitioning court clerks of their oath of fidelity to the court.

It seems equally clear to me that the Thirteenth Amendment offers no justification for the court clerks' contemptuous action.

The court in United States v. Shackney, 333 F.2d 475, 486, said: ‘[A] holding in involuntary servitude means to us action by the master causing the servant to have, or to believe he has, no way to avoid continued service . . ..’ In Wicks v. Southern Pacific Co., [29 LC ¶69,810] 231 F.2d 130, 138 (cert. den., 351 U.S. 946 [100 L.Ed. 1471, 76 S.Ct. 845]), the court held: ‘The essence of . . . involuntary servitude is that the worker must labor against his will for the benefit of another. . . .’ In that case, there being ‘no contention that appellants cannot freely leave their employment,’ the court concluded, ‘the fact remains that appellants are not being compelled or coerced to work against their will for the benefit of another.’ And, summarizing this and other authority, the editors of American Jurisprudence, Second edition, have written: ‘The essence of involuntary servitude is that a worker is compelled by law or force to labor against his will for the benefit of another. He must have, or justifiably believe that he has, no way to avoid continued service or confinement; servitude is not involuntary if the servant knows that he has a choice between continued service and freedom, even though the master has led him to believe that the latter choice may entail dire consequences. . . . [¶] The term ‘involuntary’ attached to the word ‘servitude’ applies only to the inception of the servitude, and therefore a servitude knowingly and willingly entered into cannot be termed involuntary.' (Fns. omitted; 45 Am.Jur.2d, Involuntary Servitude, § 4, pp. 931-932, and see authority there collected.)

It follows that the Thirteenth Amendment is inapposite to the issue before us. Here the court clerks were permitted, indeed invited, if they so chose, to quit their jobs. And having ‘knowingly and willingly entered’ upon their civil service offices, they are reasonably bound by their oath that they ‘will well and faithfully discharge the duties' of such offices.

Stripped of its invalid justification, the conduct here at issue may simply, and properly, be described as a planned and successful disruption of the judicial functioning of the superior court by a combination of officers of that court. This conduct, beyond any doubt, amounted to ‘misbehavior in office’ and a ‘violation of duty’ by a ‘clerk’ appointed to perform a ‘ministerial service’ to the court. It was ‘contempt of the authority of the court’ as proscribed by Code of Civil Procedure section 1209, subdivision 3.

I have found no reported instance where such lawless activities of a court's attachés have been declared beyond the reach of judicial sanctions. In my opinion we have legalized a form of anarchy, and have encouraged its future repetition. I regret that this court has been the first to do so.

THE COURT: In its petition for rehearing respondent court contends that material facts in the record are incorrectly stated in the majority opinion and that the substantial legal issue of the court's duty and power to remove all obstructions to its operation was not considered in that opinion. In support of those contentions it is alleged, ‘The ‘withdrawal of their labor’ by those court personnel at the time of their illegal strike does not necessarily mean that such court personnel could not have been guilty of earlier contempts upon the court by their failure to report for duty, in concert, without any advance notice to the court'; and ‘Once having undertaken certain duties as officers of the court, such persons, whether attorneys, clerks or reporters cannot withdraw their services in a manner calculated to interfere with the court's orderly process.’ Those principles were recognized in the concurring opinion of Sims, J. The fact is that no clerk or reporter was punished for any prior withdrawal of services or failure to perform duties which they had previously undertaken. The petitioners were singled out because they alone refused to return to work and undertake new duties to be assigned by respondent court. The petition acknowledges as much. It states, ‘Since no suitable explanation for their earlier unauthorized absences was forthcoming, the court could have held them in contempt whether or not they were willing to return to work at that moment.’ Whether that be true or not in the absence of a prior court order entered in appropriate proceedings, the court did not in fact punish anyone for a prior contempt. The effect of its orders was to single out the petitioners and threaten all others who refused to return to work. As stated in the petition for rehearing. ‘The judge's strong action did have the salutory effect of getting all but three court clerks back to their posts.’ The issues raised in the petition for rehearing are not new nor are they dispositive.

Rehearing denied. Elkington, J. is of the opinion that the petition should be granted.

FOOTNOTES

1.  Section 1 of Amendment Thirteen to the Constitution of the United States provides: ‘Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.’Section 6 of article 1 of the Constitution of California provides: ‘Slavery is prohibited. Involuntary servitude is prohibited except to punish crime.’

2.  In some of the decisions it is stated that public employees not only do not have the right to strike but also that they do not have the right to bargain collectively. (See City of San Diego v. American Federation of State etc. Employees, 8 Cal.App.3d 308, 310 [87 Cal.Rptr. 258]; Almond v. County of Sacramento, 276 Cal.App.2d 32, 36 [80 Cal. Rptr. 518].)

3.  In City of San Diego, the rule is referred to as the ‘California common law rule’ and citations are made to the many jurisdictions in this country that follow the same rule. (8 Cal.App.3d at p. 311.) In Trustees of Cal. State Colleges v. Local 1352, S.F. State etc. Teachers, supra, 13 Cal.App.3d 863, 867, it is stated that California ‘follows and applies the common law rule . . .’ (See Los Angeles Unified School Dist. v. United Teachers, 24 Cal.App.3d 142, 145 [100 Cal.Rptr. 806].

4.  In all of the Court of Appeal cases, with the exception of the Newmarker case, a petition for hearing was denied by the Supreme Court.

5.  We do not deem the nature of petitioners' work to be such as to render it indispensable to the function of the superior court. We apprehend that other persons would be available to serve in the place and stead of petitioners from other sources. Court clerks would be available from the civil service lists and the private sector, and court reporters could be obtained through the services of private reporting agencies. It should be noted here that the record does not disclose that the work of the court was impeded of frustrated because these petitioners quit their employment. The court clerks and court reporters who remained in employment continued to perform their duties during the strike. Not withstanding the inconvenience caused the court by petitioners' having terminated their employment, the court continued to function.

1.  Proceeding No. 1 Crim. 14518 was commenced on behalf of Robert F. Webb, and 20 others. Although oral orders finding petitioners Ballah and Campbell in contempt were pronounced, sentence was suspended and no formal order was entered against either. The attorney for petitioners has advised the court the petition is moot as to all petitioners except those named in the text.

2.  The respective forms of order used in each case are set forth as an appendix, post, pp. 985-986. Exhibit ‘A’ for action 1 Criminal 14518 and Exhibit ‘B’ for action 1 Criminal 14539.

3.  The answer in opposition to the petition for writ of habeas corpus in 1 Criminal 14518, served and filed in accordance with rule 56(b) of California Rules of Court, indicates that on July 1, 1975, the Director of the Administrator of the Courts released a staff memorandum discussing possible measures that might be taken by the courts in the event of a strike by court personnel. This memorandum takes a contrary review and recommends ‘that whenever a court anticipates a possible voluntary work stoppage by its employees . . . it should advise the employees . . . that their voluntary refusal to work would subject them to punishment for contempt of court.’ The memorandum continues, ‘It would seem that these warnings would generally be sufficient to ensure the continued performance of duty by court personnel, public defenders and others who are under a duty with regard to the operations of the court. A question might arise as to whether the clerical employees of the public defender's office are subject to the sanction of contempt and it might therefore be necessary to consider whether an action should be instituted to enjoin those employees from striking (see Trustees of the Calf. State Colleges v. Local 1352, S.F. State etc. Teachers (1970) 13 Cal.App.3d 863).’ For reasons expressed in this opinion, I consider the discretion expressed in the second quotation more appropriate than the valor expressed in the first, and erroneously applied in this case.

4.  The foregoing constitutional and procedural provisions control section 1126 of the Labor Code which reads: ‘Any collective bargaining agreements between an employer and a labor organization shall be enforceable at law or in equity, and a breach of such collective bargaining agreement by any party thereto shall be subject to the same remedies, including injunctive relief, as are available on other contracts in the courts of this State.’

MOLINARI, P.J.