Jurisdictional Statement — Nostrand v. Little
Supreme Court brief1962
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Office-Supreme Court, U.S.
FILED
NOV 24 196]
no. 57 1 coneoe
eee eee eee eee eee
IN THE
Supreme Court of the United States
Ocroser TERM, 1961
Howarp L. Nostranp and Max SaveELLe, Appellants,
> ; “wo -
Hensert S. Lirrie, HArowp S. SHEFELMAN, Mrs. J. HER-
BERT GARDNER, Cartes M. Harris, Joun L. Kinc and
JoserpH DrumHeELter, as the Board of Regents of the
University of Washington, Caartes E. Opecaarp, Presi-
dent, University of Washington, and Joun J. O’ConnELL,
Attorney General, State of Washington, Respondents.
On APPEAL FROM THE SUPREME COURT OF THE STATE OF
WASHINGTON
STATEMENT AS TO JURISDICTION
KENNETH A. MacDoNALD
LaNnpDon R. Estep
Francis HoAGUE
820 Alaska Building
Seattle 4, Washington
Attorneys for Appellants
See
cnauniiennaeial
AE. METROPOLITAN PRESS AND WESTERN
___ SREEIES DE pees inom .
IN THE
Supreme Court of the United States
OcTosBEerR TERM, 1961
Howarp L. Nostranp and Max SaveELLe, Appellants,
vs.
HERBERT S. Litrce, HARoip S. SHEFELMAN, Mrs. J. HEr-
BERT GARDNER, CHARLES M. Harris, Joun L. Kinc and
JosepH DruMHELLER, as the Board of Regents of the
University of Washington, CHarLes E. Opecaarp, Presi-
dent, University of Washington, and Joun J. O'ConNELL,
Attorney General, State of Washington, Respondents.
On APPEAL FROM THE SUPREME COURT OF THE STATE OF
WASHINGTON
STATEMENT. AS TO JURISDICTION
KENNETH A. MacDonaALp
LANDON R. Estep
Francis HOAGUE
320 Alaska Building
Seattle 4, Washington
Attorneys for Appellants
SUBJECT INDEX
Page
Serrtnatinnnal: Deanna iiss ee
Opinions Below ... pay re ee Beier
I os re ekg Kn eon tG yo
Cs SII os 5
Statement of the Case 00 eae 6
The Questions Are Substantial ......0.00000000000.00000000coe... 9
A. The First, Second and Third Questions
Presented Are Substantial .............. Rida ete. 9
B. The Fourth Question Is Substantial ................... 12
C. The Sixth and Seventh Questions Present
Substantial Problems ................ “ifs eae CLE Ieee 45
D. The Eighth Question Presents a
Samanal PHGNON en. ae. 17
ERR eas 2 on Pie SSO ees Nel SORRY UIE 20 ©
Appendices:
Appendix A. Decision of the Washington
State Supreme Court, 53 Wn. (2d)
460, 335 P.(2d) 10...0..00........ App. p. 1
Appendix B. Decision of the Washington
State Supreme Court, 158
Wash. Dec. 10] .................... App. p. 47
Appendix C. Journal and Judgment in the
Supreme Court of the State
of Washington .............0......... App. p. 86
Page
Appendix D. Journal and Judgment in the
Supreme Court of the State
of Washington ........................ App. p. 88
Appendix E. Statutes Involved .................... App. p. 90
Appendix F. The Oath ..............-.-.-.- App. p. 96
TABLE OF CASES
Adler v. Board of Education, 342 U.S. 485,
72 S. Ct. 380, 96 L. ed. 517 (1952) .......0.0.0.2...... 11, 18
American Civil Liberties Union of Southern
California v. the Board of Education of Los
Angeles, 10 Cal. Rptr. 647, 359 P.(2d) 45
(1961) pet. for cert. granted, U. S. Supreme
Court Docket No. 108 (1961) ...........0...0.0..eeceeeeese 19
Barenblatt v. U. S., 360 U.S. 109, 79 S. Ct. 1081,
SU. OR CR Fe Ce Fira ecicieeececces 12
Beilan v. Board of Education, 357 U.S. 399, 78
S. Ct. 1817, 2 L. ed.(2d) 1414 (1958) 0000... 11
Braden v. U. S., 365 U.S. 48, 81 S. Ct. 584,
Sh. Oe Cee Ce sae... 12
Bridges v. Wixon, 326 U. S. 135, 65 S. Ct. 1443,
Sg GRE SS 1
Danskin v. San Diego Unified School District,
28 Cal.(2d) 536, 171 P.(2d) 885 (1946) ............ 18, 19
Elston v. McGlauflin, 79 Wash. 355, 140 Pac. 396 (1914) 13
#ee
Page
First Unitarian Church of Los Angeles v. County
of Los Angeles, 357 U.S. 545, 78 S. Ct. 1350,
2 L. ed.(9d) 1484 (1058) cele cece ee 19
Garner vc Beard of Public Works, 341 U.S. 716,
71 S. Ct. 909, 95 L. ed. 1317 (1951) 20... 11
Gnecchi v. State of Weshington, 158 Wash.
il PTO 13
In re Young's Estate, 40 Wn.( 2d) 582,
et 1 Bo Bd. : Sanna pete tenet e enemas 14°
Konigsberg v. State Bar of California, 353 U. S.
252, 77 S. Ct. 722, 1 L. ed.(2d) 810 (1957), 366
U. S. 36, 81 S. Ct. 997, 1 L. ed.(2d) 105 (1961)... 12, 16
Larson v. Department of Labor and Industries,
174 Wash. 618, 25 P.(2d) 1040 (1933) 2.000000... 18
Lawson v. Housing Authority of the City of
Milwaukee, 270 Wisc. 269, 70 N.W.(2d) 605 (1955) 18
Lerner v. Casey, 357 U.S. 468, 78 S. Ct. 1311,
2 L. ed.(2d) 1423 (1958) 2... SEE Ee 1]
Nelson v. County of Los Angeles, 362 U. S. 1,
80 S. Ct. 527, 4 L. ed.(2d) 494 (1960).......... _ 11-12, 15
Schware v. Board of Examiners, 353 U.S. 232,
77 S. Ct. 752, 1 L. ed.(2d) 796 (1957) 00... 12
Shelton v. Tucker, 364 U.S. 479, 81 S. Ct. 287,
BF OER) Bee 8 Ce arisen. 10, 16
Slochower v. Board of Education, 350 U.S. 551,
76 S. Ct. 637, 100 L. ed. 692 (1955) ............ 5, 10, 11, 12
Speiser v. Randall, 357 U.S. 513, 78 S. Ct. 637,
2 L. ed.(2d) 1460 (1958) _...5, 10, 18
Swak v. Department of Labor and Industries,
41 Wn.(2d) 51, 240 P.(2d) 560 (1952) 000... 13-14
iv
Page
Sweezy v. New Hampshire, 354 U. S. 234,
77 S. Ct. 1208, 1 L. ed.(2d) 1311 (1957)..10, 12, 16, 19
Uphaus v. W 360 U.S. 72, 79 S. Ct. 1040,
BL. ed.(2d) 1090 (1959) se-ecvseccesessoncseesessceesevenseeee 12
Uphaus v. Wyman, 364 U. S. 388, 81 S. Ct. 153,
S L. ed.(2d) 148 (1960) oocecccccsscccccccncssceeceeseceeceeee 12
West v. Keith, 154 Wash. 682, 283 Pac. 198 (1929). ... 13
West Virginia State Board of Education v. Barnette,
319 U.S. 624, 63 S. Ct. 1178, 87 L. ed.
TO MI ibis rctoesedaaiacticienenthoeceincnpeasircdieacde 17-18
Wieman v. Updegraff, 344 U.S. 183, 73 S. Ct. 215,
eae Ff =| Bana Ree remcnec anata 4-5, 16, 18
Wilkinson v. U. S., 365 U. S. 399, 81 S. Ct. 567,
SL. od. (88) G66 C1900) ..........- ncn... 12
STATUTES
Laws of 1955, Chap. 377, §§ 1, 2,3, 4.0.20... 7, 8,10
Laws of Washington of 1955, Chap. 377, § 1...... 2, 4,5, 10
R.C.W. 2.04.220 (1951 200000000 .. LES a Ree aa 3
Tee Heme nance sino 2
Sn 4
a 17
Fok RR RRR AiR IS eee a nN ek 10
R.C.W. 9.81.070 through 9.81.088 20. cecceeceeen 4
Sie Se 4
i eS ee es
IN THE
Supreme Court of the United States
OcToBER TERM, 1961
Howarp L. Nostranp and Max Save.ie, Appellants,
vs.
Herrert S. Litr_e, HAroip S. SHEFELMAN, Mrs. J]. Her-
BERT GARDNER, CHARLES M. Harris, JoHN L. Kine and
JoserH DruMHELLER, as the Board of Regents of the
University of Washington, CHarLes E. Opecaarp, Presi-
deut, University of Washington, and Joun J. O'ConneLt,
Attorney General, State of Washington, Respondents.
On APPEAL FROM THE SUPREME COURT OF THE STATE OF
WASHINGTON
STATEMENT AS TO JURISDICTION
JURISDICTIONAL STATEMENT
Appellants’ appeal from the Order of the Supreme
Court of the State of Washington entered in this action
on June 28, 1961, whereby it was ordered that the Judg-
ment entered by said Court on March 20, 1959, and
vacated by this Court on June 17, 1960, be reinstated and
from the Judgment entered June 29, 1961, which reversed
in part the Judgment of the Superior Court of the State
of Washington for Thurston County. Appellants submit
this statement in support of their contention that the
2
Supreme Court of the United States has jurisdiction of
this appeal and that substantial questions are presented.
OPINIONS BELOW
The Superior Court of the State of Washington for
Thurston County did not render an official or unofficial
opinion. The first opinion of the Supreme Court of the
State of Washington (January 29, 1959) is reported in 53
Wn.(2d) 460, 335 P.(2d) 10 (1959), and is annexed
hereto as Appendix A. The second opinion of the Court
below (April 20, 1961), rendered subsequent to remand
by this Court has not yet been officially reported; it ap-
pears unofficially at 158 Wash. Dec. 101, 361 P.(2d) 551
(1961), and is annexed hereto as Appendix B.
JURISDICTION
Appellants Howard L. Nostrand and Max Savelle, two
professors employed by the State of Washington under
yearly contract to teach at the University of Washington,
commenced this action pursuant to Section 7.24.010 et
seq., Revised Code of Washington, for the purpose of
obtaining a declaratory judgment adjudicating Chapter
377, Laws of Washington of 1955, which required execu-
tion of a non-subversive oath of all state employees on
penalty of dismissal, to be violative of several provisions
of the Constitution of the United States and of the State
of Washington, and seeking a permanent injunction en-
joining the enforcement thereof (Tr. 1-6). The Superior
Court found that Chapter 377 violated the Constitution
of the State of Washington and issued an injunction per-
manently restraining the enforcement or administration
3
of its provisions (Tr. 29). The Supreme Court of the State
reversed in part, upholding the validity of all of Chapter
377 under both the United States and Washington Con-
stitutions with the exception of Section 3 of said Chapter,
and remanded the case to the Superior Court with direc-
tions to dissolve the permanent injunction except as to
Section 3 and to dismiss the action (Tr. 39). A copy of
the Judgment of the Supreme Court of Washington
is annexed as Appendix C. Judgments of ‘the Supreme
Court of Washington are final as to all parties. RCW
9.04.220 (1951). On February 26, 1959, a petition for
rehearing (Tr. 33-37) was filed with the Supreme Court
of Washington, which was denied on March 20, 1959
(Tr. 38). Notice of Appeal to this Court was filed in the
Supreme Court of Washington on May 28, 1959 (Tr.
84-87). This Court by order dated June 13, 1960 vacated
the Judgment of the Supreme Court of Washington and
remanded the case to it to determine whether Chapter
377 afforded appellants a hearing, and to redetermine
the constitutionality of said Chapter (Tr. 78-79). The
Supreme Court of Washington ordered that the Judgment
entered by said Court on March 20, 1959 be reinstated
and directed the Superior Court to dissolve the permanen:
injunction and to dismiss the action. A copy of the Judg-
ment of the Supreme Court of Washington is annexed as
Appendix D. On May 19, 1961, a petition for rehearing
(Tr. 123-182) was filed with the Supreme Court of Wash-
ington, which was denied on June 9, 1961 (Tr. 183).
Notice of appeal to this Court was filed in the Supreme
4
Court of Washington on September 25, 1961 (Tr. 140-
143). ;
The statute drawn into question on the ground that it
is repugnant to the United States Constitution is Chapter
377, Laws of Washington, 1955, Revised Code of Wash-
ington, Sections 9.81.070 through 9.81.083. The most per-
tinent parts of this Chapter are as follows:
“Sec. 1. Every person and every board, commis-
sion council, department, court or other agency of
the State of Washington or any political subdivision
thereof, who or which appoints or employs or super-
vises in any manner the appointment or emplovment
of public officials or employees . . . shall require
every employee . . . to state under oath whether or
not he or she is a member of the Communist Party
or other subversive organization, and refusal to
answer on any grounds shall be cause for immediate
termination of such employee’s employment. . . .”
(Emphasis supplied. )
“Sec. 4. The Communist Party is a subversive or-
ganization within the purview of RCW 9.81 and
membership in the Communist Party is a subversive
activity thereunder.”
This Act has reference to and is defined by other sec-
tions of RCW 9.81. These Statutory provisions are
lengthy and therefore- are set f in Appendix E. The
oath demanded of appellants is set forth in Appendix F.
The decision of the highest court of the State of Wash-
ington sustained the validity of Chapter 377 under the
United States and Washington Constitutions (with the
exception of Section 3). For this reason, this Court has=
jurisdiction on appeal. 28 USC Sec. 1257 (2): Wieman v.
+
TE a a TTT ie we er “ m4 v
w
5
Updegraff, 344 U.S. 183, 73 S. Ct. 215, 97 L. ed. 216
(1952); Slochower v. Board of Education, 350 U.S. 591,
76 S. Ct. 637, 100 L. ed. 692 (1955); Speiser v. Randall,
357 U. S. 513, 78 S. Ct. 637, 2 L. ed.(2d) 1460 (1958).
QUESTIONS PRESENTED
The following questions are presented by this appeal:
1. Does the State’s requirement of an oath pursuant
to Chapter 377, Laws of Washington, 1955, of non-mem-
bership in the Communist Party or other subversive organ-
ization as a condition for any employment by the state, vio-
late the due process guarantee of the Fourteenth Amend-
ment to the United States Constitution, because no hear-
ing is afforded the employee wherein ap inquiry may be
made as to the character of the subversive organization or
the character of his membership therein, and where the
employee can explain or defend his refusal to take the oath?
2. Does such oath requirement violate the Fourteenth
Amendment of the Constitution of the United States in
that it requires immediate discharge of a state employee
solely upon refusal to subscribe the oath and without
notice, charges and hearing?
3. Does such oath requirement violate the Fourteenth
Amendment to the Constitution of the United States in
that it deprives respondent of property without due process
of law? |
4. Does the consideration by the Supreme Court of
Washington of the 1956 Faculty Handbook as a basis
for the Order and Judgment appealed from, secured
6
sua sponte by that Court after the filing of all briefs and
presentation of oral arguments following the remand of
the case from the United States Supreme Court, violate
the due process guarantee of the Fourteenth Amendment
to the United States Constitution, because of the denial
to the parties of a hearing or opportunity to present evi-
dence concerning the said Handbook?
5. Does such oath requirement violate the Fourteenth
Amendment to the Constitution of the United States in
that it penalizes a state emplovee for membership in a sub-
versive organization rather than for acts constituting a sub-
stantive evil, even in the absence of his knowledge that
the subversive organization has for its purpose the forceful
overthrow of the government?
6. Does such oath requirement violate the Fourteenth
Amendment to the Constitution of the United States in
that it conclusively presumes that membership in a sub-
versive organization is grounds for dismissal of a state em-
ployee?
7. Does such oath requirement violate the First and
Fourteenth Amendments to the Constitution of the United
States in that it abridges freedom of speech, freedom of
association and assembly?
STATEMENT OF THE CASE
The appellants are two professors, employed under
contract by the State of Washington to teach at the
University of Washington (Tr. 26). The respondents,
the University Board of Regents, president of the Uni-
eS .
e3
-
versity, and the State Attorney General are charged
with the duty of establishing, enforcing, carrying out
and administering the provisions of Chapter 377, Laws
of 1955 (Tr. 26-27)°. The respondents have demanded
that appellants sign and swear to an oath, a copy of
which appears at Appendix F hereto (Tr. 27). The ap-
pellants in their petition allege that unless they comply
with such demands, their employment contracts with
the University will be terminated as required by Chapter
377 (Tr. 3). The statute provides no opportunity for
explanation or hearing.
Chapter 377, Laws of 1955 is comprised of four sections
which’ amended the Subversive Activities Act of 1951.
The first section requires every appointing or emploving
official of the State or political subdivision thereof to
“require every employee . . . to state under oath whether
he or she is a member of the Communist Party or other
subversive organization and refusal to answer on any
grounds shall be cause for immediate termination of such
emplovee's employinent.” The fourth section provides as
follows:
“The communist party is a subversive organization
within the purview of RC.W. 9.81 [The Subversive
Activities Control Act of 1951] and membership in
the Communist Party is a subversive activity there-
under.”
The federal questions sought to be reviewed here were
*Because the incumbents in their various offices have changed from time
to time during the course of this litigation. the names of the respond.
ents have been changed by stipulation and order to accord with the
facts
§
first raised in the Complaint (Tr. 3) and the federal
and state constitutional issues were the only matters in
controversy at all stages of the Proceeding in the trial
court and the State Supreme Court. There were no factual
controversies in this action. The trial court found that
Section 4 of Chapter 377 violated the State Constitution
in that it embraced a subject not set forth in the title
to Chapter 377, that Section 3 of the Chapter, which
declared “subversive” all organizations on the U. §. At-
tumey General's list of subversive organizations, was an
"constitutional delegation of legislative authority. That
court held that Sections 1 and 2 were inseparable from
Sections 3 and 4 and that therefore all of Chapter 377
was unconstitutional and void (Tr. 28). An injunction
Was issued restraining the enforcement of the provisions
of this chapter (Tr. 29) From. this injunction the re-
spondents appealed to the State Supreme Court (Tr. 30).
That court after briefs and argument, held that Section
3 was unconstitutional but upheld the constitutionality and
separability of Sections 1. 2 and 4 (Tr. 39). The decision
of the State Supreme Court was appealed to this Court
(Tr. 75-77). This Court vacated the judgment of the State
Supreme Court and remanded the case to it to determine
whether Chapter 377 afforded appellants a hearing and
to see what effect this determination had upon their
initial decision (Tr. 78-79). The Supreme Court of Wash-
ington after briefs and argument, held that Chapter
377 did not afford appellants a hearing, but decided that
they were not denied due Process of law under the United
i]
States Constitution or the Constitv ion of the State of
Washington, because the presently existing rules of the
University of Washington, acquired sua sponte by the
Cuurt after argument by counsel, provided that professors
having employment tenure must be given a hearing before
dismissal. That opinion is annexed hereto as Appendix B.
That Court thereafter ordered that the judgment entered
by it on March 20, 1959 be reinstated (Tr. 134). Due to
a temporary and later a permanent injunction, issued by
the trial court, respondenis have made no efforts to en-
force the provisions of this chapter with reference to
appellants. This final injunction is still in force pending
this appeal (Tr. 73-74, 136-137).
THE QUESTIONS ARE SUBSTANTIAL
A. The First, Second and Third Questions Presented
Are Substantial.
1. Does the State’s requirement of an oath pursuant
to Chapter 377, Laws of Washington of 1955, of
non-membership in the Communist Party or other
subversive organization as a condition for any
employment by the state, violate the due proc-
ess guarantee of the Fourteenth Amendment to
the United States Constitution, because no hearing
is afforded the employee wherein an inquiry may
be made as to the character of the subversive or-
ganization or the character of his membership there-
in, and where the employee can explain or defend
his refusal to take the oath?
2. Does such oath requirement violate the Fourteenth
Amendment of the Constitution of the United States
10
in that it requires discharge of a state oes
solely upon refusal to subscribe the oath and with-
out notice, charges and hearing?
3. Does such oath requirement violate the Fourteenth
Amendment to the Constitution of the United States
in that it deprives respondent of property without
due process of law?
Section 1, Chapter 377, Laws of Washington, 1955 pro-:
vides that refusal “on any grounds” to sign the oath shall be
cause for “immediate termination of employment.” RCW
9.81.060 provides that no subversive person as defined in
the Act, shall be eligible for employment by the state or
political subdivision. This, in connection with Section 4 of
Chapter 377, means that appellants are subject to immedi-
ate discharge without an opportunity to be heard or ex-
plain regardless of why they are unwilling or unable to
execute the oath, nor what reason they have for belonging
to the Communist Party or other subversive organization.
Such preemptory disnussal constitutes arbitrary action
punitive in nature and as such, constitutes a denial of due
process within the meaning of the Fourteenth Amendment.
Slochower v. Board of Education of New York, 350 U. S.
551, 76 S. Ct. 637, 100 L. Ed. 692 (1955); Sweezy v. New
Hampshire, 354 U. S. 234, 77 S. Ct. 1208, 1 L. Ed. (2d) 1311
(1957); Speiser v. Randall, 357 U. S. 513, 78 S. Ct. 1332,
2 L. Fd.(2d) 1460 (1958); and Shelton v. Tucker, 364
U. S. 479, 81 S. Ct. 287, 5 L. Ed.(2d) 231 (1960). For it
should not be presumed that every knowing membership
ll
in a subversive organization is necessarily a hostile or un-
lawful act rendering a member unfit for state employment,
and subject to punitive action. It should be noted that
the oath requirement is not directed at subversive ac-
tivities, but a mere membership in a subversive organiza.
tion. Cf. Bridges v. Wixon, 326 U. S. 135, 65 S. Ct. 1445,
89 L. Ed. 2103 (1943).
This statute requires that appellants, as a condition
of continued university employment, comply with terms
which are unreasonable, unlawful and discriminatory, and
its validity cannot be sustained by Garner v. Board
of Public Works, 341 U. S. 716, 71 S. Ct. 909, 95
L. Ed. 1317 (1951); Adler v. Board of Education, 342
U. §. 485. 72 S. Ct. 380, 96 L. Ed. 517 (1952); Lerner
r. Casey, 357 U. S. 468, 78 S. Ct. 1311, 2 L. Ed.( 2d)
1423 (1958) and Beilan v. Board of Education, 357 U. S.
399, 78 S. Ct. 1317, 2 L. Fd.(2d) 1414 (1958), which
were relied upon by the State Supreme Court in its first
opinion. Each of these cases involved hearings at
which the employee could appear and argue his case.
This factor was considered as distinquishing, by this
court in the Slochower case, supra, in which it was held
that the automatic and summary dismissal of the appel-
lant without an opportunity for explanation constitutes
a denial of due process of law.
The State Supreme Court held that immediate dismissal
of an employee who declines to sign the oath is not a viola-
tion of due process on the basis of Nelson v. County of
Los Angeles, 362 U. S. 1, 80 S. Ct. 527, 4 L. Ed.(2d)
12
494 (1960). That court misinterpreted the Nelson case,
supra, and improperly based its decision in the instant
case upon it. That court also cited Barenblatt v. U. S.,
360 U. S. 109, 79 S. Ct. 1081, 3 L. Ed.(2d) 1115 (1959);
Uphaus v. Wyman, 360 U. S. 72, 79 S. Ct. 1040, 3 L. Ed.
(2d) 1090 (1959); Uphaus v. Wyman, 364 U. S. 388,
81 S. Ct. 153, 5 L. Ed.(2d) 148 (1960); Wilkinson v.
U. S., 365 U. S. 399, 81 S. Ct. 567, 5 L. Ed.(2d) 633
(1960), and Braden v. U. S., 365 U. S. 43, 81 S. Ct. 584,
5 L. Ed.(2d) 653 (1960) as additional authority for their
original decision herein. These decisions concern the in-
vestigative authority of congressional committees and the
requisite concreteness of enabling rules and resolutions,
and do not support the state court's holding.
It is significant that both opinions of the Washington Su-
preme Court in the case at bar, failed to discuss, dis*iu-
guish, or even to refer to holdings of the United States
Supreme Court in the following cascs, although these
cases were cited to the court ..4 discussed extensively
b: the appellants in their brief: ‘hower v. Board of Ed-
ucation, supra; Konigsberg v. : Bar of California, 353
U. §. 252, 77 S. Ct. 722, 1 L. Ea.( 2d) 810 (1957); Schware
v. Board of Bar Examiners, 353 U.S. 282, 77 S. Ct. 752, 1 L.
Ed.(2d) 796 (1957); and Sweezy v. New Hampshire, 354,
U. S. 234, 77 S. Ct. 1208, 1 L. Ed.(2d) 1311 (1957).
In the case at bar, as in Slochower, dismissal is auto-
matic and immediate; due process is consequently denied.
B. The Fourth Question Is Substantial.
4. Does the consideration by the Supreme Court of
j
13
Washington of the 1956 Faculty Handbook as a
basis for the Order of Judgment appealed from,
secured sua sponte by that Court after the filing
of all briefs and presentation of oral arguments
following the remand of the case from the United
States Supreme Court, violate the due process guar-
antee of the Fourteenth Amendment to the United
States Constitution, because of the denial to the
parties of a hearing or op rtunity to present evi-
dence concerning the sai Handbook?
The contents of the 1956 Faculty Handbook of the
University of Washington is not a matter of common
and general knowledge; neither is it an indisputable fact
so that the Supreme Court of Washington is justified in
taking judicial notice of it sua-sponte.—~
The Supreme Court of Washington must look only to
the record to obtain factual material upon which to base
its decision. Gnecchi v. State of Washington, 158 Wash.
Dec. 475 (1961), and West v. Keith, 154 Wash. 682, 255
Pac. 198 (1929). Similarly the decision of a trial judge
will be rejected on appeal if it is based upon his own
investigation of the facts. Elston v. McGlauflin, 79 Wash.
355. 140 Pac. 396 (1914). The appellate court will not
take judicial notice of the rules of the superior court,
Larson v. Department of Labor and Industries, 174 Wash.
618, 25 P.(2d) 1040 (1933), or of the proceedings of
the county commissioners even though recorded in the
County Auditor's Office, West t. Keith, 154 Wash. 682,
283 Pac. 198 (1929), or of records and decisions in other
actions between the same parties. Swak v. Department
of Labor and Industries, 41 Wn.(2d) 51, 240 P.(2d)
14
560 (1952); In re Young's Estate, 40 Wn.(2d) 582, 244
P.(2d) 1165 (1952).
Respondents, in answer to appellants’ request for ad-
missions of fact, which referred to the 1948 and 1952
Faculty Handbooks, denied that the handbooks were ap-
proved by the Board of Regents or that they governed
the relationship between the faculty and the administra-
tion of the University. Since that was denied, the cause
was thereafter tried without reference to such faculty
handbooks. The court below gave greater authority to
the handbooks than does the University.
The handbook provides that a professor may be re-
moved only “for cause,” which is defined as one or more
of the following:
(1) incompetency, (2) neglect of duty, (3) physical or
mental incapacity, (4) dishonesty or immorality, (5)
conviction of a felony. The refusal to sign the oath does
not appear to be within the ambit of any of these specifi-
cally enumerated causes. Accordingly, it is submitted that
the handbook causes do not contemplate the situation of
a professor who has refused to sign the necessary oath.
The Supreme Court of Washington, having averted
to the faculty handbook when it was not in the record
or argued by the parties, has caused endless confusion
and raised numerous unanswered questions such as: (a)
Are the tenure rights, once retained by the professors,
enduring? (b) May they be reviewed, modified, or elimi-
nated? (c) Is it important that the 1956 Faculty Hand-
15
book relied upon by the court below was promulgated
after the effective date of the 1955 Act? (d) Can the re-
gents, by the tenure code, modify the mandate of the
statute so that any person who refuses to sign the oath
“on any grounds” is not immediately discharged? (e) Does
the handbook prevent the discharge of a professor for any
reason other than the five stated grounds?
It is to be noted that neither the statute nor the hand-
book include a provision that a state employee refusing
to comply with the requirements of the Subversive Ac-
tivities Act is guilty of insubordination or any other vio-
lation of his employment contract, as was the case in
Nelson v. County of Los Angeles, supra. It is apparent
that the action by the court below securing the 1956
Faculty Handbook sua sponte denied appellants due proc-
ess of law by violating most basic and sacred rules of evi-
dence and procedure.
C. The Fifth and Sixth Questions Present Substantial
Problems.
5. Does such oath requirement violate the Fourteenth
Amendment to the Constitution of the United States
in that it penclizes a state employee for member-
ship in a subversive organization rather than for acts
constituting a substantive evil, even in the absence
of his knowledge that the subversive organization
has for its purpose the forceful overthrow of the
government?
6. Does such oath requirement violate the Fourteenth
Amendment to the Constitution of the United States
16
in that it conclusively presumes that membership
in a subversive organization is grounds for dismissal
of a state employee?
In Konigsberg v. State Bar of California, 353 U. S. 252,
77 S. Ct. 722, 1 L. Ed.(2d) 810 (1957), this court held
that an appellant's refusal to answer questions concerning
affiliation with the Communist Party without anything
more is not a ground for denying him admission to the
Bar. The court stated that such membership alone is
not an adequate basis for concluding that the member
is disloyal or a person of bad character. This holding was
not reversed or qualified by this court’s second opinion
in that case. 366 U. S. 36, 81 S. Ct. 997, 1 L. Ed.(2d)
105 (1961).
The statute provides that a member of the Communist
Party or other subversive organization is conclusively
unfit and ineligible to hold public employment. It goes
far beyond what is necessary to accomplish any legitimate
governmental purpose. Sweezy v. New Hampshire, 354
U. S. 234, 77 S. Ct. 1208, 1 L. Ed.(2d) 1811 (1957)
[concurring opinion by Justice Frankfurter], Shelton v.
Tucker, 364 U. S. 479, 81 S. Ct. 287, 5 L. Ed.(2d) 231
(1960).
This law presumes that any member no matter what
the qualifications or extenuating circumstances is disloyal
and unfit for government employment and that he must be
summarily discharged. The Act is directed at the clothing
of the traitor rather than his traitorous activity. It is thus
an indiscriminate and unreasonable classification upon
7
which to deny public employment. Wieman v. Updegraff.
supra. It must fall as an assertion of arbitrary power
offending due process.
Prior to 1955, the Subversive Activities Act specifically
required knowledge of the voluntary purposes of the
organization before one could be found to be a subversive
person through membership. RCW 9.81.010 (5). Section
4 of the 1955 Act specifically eliminated scienter (i.e.,
knowledge of the revolutionary nature of the organiza-
tion as distinguished from knowledge of his membership
in the organization) from the definition of a subversive
person. Even though the Supreme Court of Washing-
ton states that it finds that the element of scienter “is
implied in every clause (of the oath) and of the pertinent
statutory provisions,’ that court appears to hold that
since it is “common knowledge” that the Communist
Party is a subversive organization (Tr. 59), specific knowl-
edge of the Communist Party's purposes or activities is
universal and therefore to be presumed conclusively. It
is submitted that this holding is contrary to the specific
holding of this Court in Wieman v. Updegraff, supra.
D. The Seventh Question Presents a Substantial Prob-
lem.
7. Does such oath requirement violate the First and
Fourteenth Amendments to the Constitution of the
United States in that it abridges freedom of speech,
freedom of association and assembly?
Mr. Justice Jackson in West Virginia State Board of
Education v. Barnette, 319 U. S. 624, 63 S. Ct. 1178, 87
18
L. Ed. 1628 (1943), which sustained the religious con-
victions of school children against saluting the flag, stated:
“If there is any fixed star in our constitutional
constellation it is that no official, high or petty,
can prescribe what shall be orthodox in politics, na-
tionalism, religion or other matters of opinion or
force citizens to confess by word or act their faith
therein. If there are any circumstances which per-
mit an exception, they do not now occur to us.”
319 U. S. 642
The freedoms protected by the First Amendment to
the Constitution can be limited or abridged only to correct
substantial evils with which the legislature has power io
deal. Adler v. Board of Education, 342 U. S. 485, 72
S. Ct. 380, 96 L. Ed. 517 (1952); Lawson v. Housing Au-
thority of the City of Milwaukee, 270 Wisc. 269, 70 N. W.
(2d) 605 (1955) Danskin v. San Diego Unified Sckool
District, 28 Cal.(2d) 536, 171 P.(2d) 885 (1946).
As applied to educators, as in the case at bar, the
need for freedom of expression and association is a funda-
mental requisite. Freedom of inquiry, advocacy and
association is probably more essential to the growth and
spread of academic knowledge than to any other area
of human activity. See concurring opinion of Mr. Justice
Frankfurter in Wieman v. Updegraff, supra; Sweezy v.
New Hampshire, 354 U. S. 234, 77 S. Ct. 1203, 1 L. Ed.
(2d) 1311 (1957); Speizer v. Randall, 357 U. S. 513,
78 S. Ct. 1332, 2 L. Ed.(2d) 1460 (1958).
The need for protecting college students from subver-
sive propaganda must be viewed in relation to legislative
19
steps taken to afford such protection. Here no effort is
made to inquire into the professor's loyalty, merely his
associations. While his associations may have bearing on
his loyalty, standing alone without more they are not
decisive. First Unitarian Church of Los Angeles v. County
of Los Angeles, 357 U. S. 545, 78 S. Ct. 1350, 2 L. Ed.
(2d) 1484 (1958) and American Civil Liberties Union of
Southern California v. The Board of Education of Los
Angeles, 10 Cal. Rptr. 647, 359 P.(2d) 45 (1961) pe-
tition for certiorari granted, U. S. Supreme Court Docket
No. 108 (1961).
The legislature attempts to deny employment to every-
one refusing to sign this oath not because it believes
that their employment would create a clear and present
danger to the community, but because it believes the
privilege of public employment should be denied to
those whose convictions and affiliations it does not choose
to accept or tolerate. “What it does not tolerate itsseeks to
censor.” Danskin v. San Diego Unified School District, 28
Cal.(2d) 536, 171 P.(2d) 885 (1946), at page 891. It is
submitted that this is an unwarranted abridgement of
freedom of association and assembly.
CONCLUSION
Appellants submit that the disregard of Federal con-
stitutional rights by the Legislature of the State of Wash=
ington and by the Supreme Court of Washington is clear
and that this appeal presents substantial questions re-
quiring consideration by this Court.
Respectfully submitted,
KENNETH A. MACDONALD
LANDON R. Estep
FrANcis HOAGUE
320 Alaska Building
Seattle 4, Washington
Attorneys for Appellants —
APPENDIX
. '—Q5500 2) Ae ea 4
SG Be BS ae
|
APPENDIX A
DECISION OF THE WASHINGTON STATE SUPREME
COURT
(53 Wn.( 2d) 460, 335 P.( 2d) 10]
[No. 34451. En Banc. January 29, 1959. |
Howarp L. Nosrranp et al., Respondents, v. “HoMAs
Baer et al., Appellants.
Appeal from a judgment of the superior court for
Thurston county, No. 28814, Wright, J., entered April
29, 1957, upon findings in favor of the plaintiffs, in an
action for a declaratory judgment and for injunctive relief.
Reversed.
The Attorney General and Michael R. Alfieri, Assist-
ant, for appellants.
Solie M. Ringold and Francis Hoague, for respondents.
Donwortn, J.—This action was commenced by two
professors (respondents), employed by the state of Wash-
ington to teach at the University of Washington for the
purpose of obtaining a declaratory judgment? adjudicating
Laws of 1955, chapter 377, p. 1545,’ to be violative of
several provisions of the constitutions of the United States
and of this state, and seeking a permanent injunction
enjoining the enforcement thereof.
*Pursuant to the provisions of RCW 7.24.010. et seq.
This act consists of four sections. the first two of which are amendatory
of provisions initially enacted in the subversive activities act. Laws of
1951. chapter 254. p. 793. and the last two of which are entirely new
legislation.
PRD EL EP
2
In their complaint, respondents alleged their employ-
ment under contract as professors of the University of
Washington; that appellants (the university board of re-
gents, president, and vice-president, and the state attorney
general) are charged with “the duty of establishing, en-
forcing, carrying out and administering the provisions of
...the Act”; that appellants have demanded that re-
spondents sign and swear to an oath; that, unless respond-
ents comply with such demands, their employment con-
tracts with the university will be terminated by appellants:
that, unless appellants be restrained from enforcing the
act and insisting upon the execution of the oath, respond-
ents will suffer irreparable injury not compensable in
monctary damages; and that respondents have no ade-
quate remedy at law.
In so far as is presently material, the affidavit which
appellants demanded that respondents subscribe, upon
oath, recites above the jurat and place provided for
signature:
“(2) That I am not a subversive person or a member
of the Communist Party or any subversive organization,
foreign or otherwise, which engages in or advocates,
abets, advises, or teaches the overthrow, destruction or
alteration of the constitutional form of the government
of the United States, or of the State of Washington, or
of anv political subdivision of either of them by revolution,
force or violence;
“That this statement is voluntarily made by me, pur-
suant to the provisions of Chapter 377, Laws of 1955,
3
with full knowledge that the same is subject to the
penalties of perjury.”
Prior to trial, respondents requested, in writing, and
obtained certain admissions of fact. Other facts which
respondents requested appellants to admit were denied.
The record before us does not reveal what disposition,
if any, the trial judge made of these disputed factual
matters.
Trial to the court resulted in the entry of findings
of fact (substantially in accord with the averments con-
tained in the complaint), conclusions of law, and a final
decree holding the entire act of 1955 to be violative of
the constitution of this state, and permanently restraining
appellants from administering and enforcing any of the
provisions therein contained.‘ This appeal followed.
Before considering the respective contentions advanced
by the parties, and because chapter 377, Laws of 1955,
is amendatory legislation, it is necessary, in order to place
it in its proper perspective, to analyze the act amended
thereby, i.e., the subversive activities act of 1951,” and
to consider its background and legislative history.
The 1951 act was a comprehensive statute enacted by
“It Is Heresy Orperep. Apjupcep avo Decreep that Chapter 377.
Laws of 1955 violates the Constitution of the State of Washington, and
is therefore void and of no effect; and
“Iv Is Further Orperep. Apjupcep anp Decreep that the above-
named defendants [appellants| be and they are hereby permanently
restrained from establishing. enforcing. carrying out. and administering
the provisions of Chapter 377. Laws of 1955 and from requiring the
plaintiffs [respondents | to execute any oath pursuant to said Chapter.”
*Chapter 254. Laws of 1951. p. 793.
4
result of the report of the joint fact-finding committee on
un-American activities in the state of Washington (other-
wise referred to as the Canwell committee). This com-
mittee was created by house concurrent resolution No.
10,6 adopted by the legislature at its 1947 session, and
was directed to investigate subversive activities in the
State of Washington and to file a report wth the thirty-
first (1949) legislature.
Acting pursuant to authority vested in it by this reso-
lution, the committee conducted its investigation and
held extensive public hearings in 1948.” As directed, the
committee reported its findings. conclusions, and recom-
mendations to the legislature at its 1949 session."
SLaws of 1947. p. 1378. Pertinent provisions of this resolution are quoted
at length in appendix A. The complete text of house concurrent resolu-
tion No. 10 may also be found in State ex rel. Robinson v. Fluent, 30
Wo.t2d) 194. 19) Pe2dd 2H (1948) Ccert. den. 355 U.S. 844, 93
1. Fed. 394. 69S. Ct. 66). wherein we upheld the validity of this
resolution.
"Other litigation resulted from these hearings. notably State v. James.
46 Wnt 2d) 882. 221 P.f2d) 182: 341 U.S. 911. 95 L. Fd. 1348. 71
S. Ct. 615 (cert. den.) : 341 US. 937. 95 L. Ed. 1365. 71S. Ct. 851 (re-
hearing den.). The defendant therein was charged. tried and convicted
for willfully refusing to answer a proper and material question put to
him by the committee after being duly summoned to give testimony. In
rejecting appellant's attack upon the constitutionality of house concur- |
rent resolution No. 10. we adhered to our prior decision in State ea rel.
Robinson v. Fluent. supra. Other cases involving witnesses before the
commitice who were similarly charged. tried. and convicted, were con-
solidated on appeal to this court: State v. Gundlach, State v. For-
schmiedt. State v. Ottenheimer. State v. Janes, 36 Wn.i2d) 918. 221
P.i2d) 502: cert. den. in Forschmiedt and James cases; 341 U.S. 910.
95 L. Ed. 1347. 71S. Ct. 615. rehearing den. 341 U.S. 937, 95 L. Fad.
1365.71 )S. Ct. 851.
®House Journal of the thirty-first legislature of the state of Washington
(1949). p. 1095. This report incorporated by reference two prior re-
ports (First Report. Un-American Activities in Washington State, 1948.
and Second Report. Un-American Activities in Washington State. 1948)
of the committee which contained testimony adduced at its hearings. to-
gether wi'h findings and conclusions drawn by the committee from that
EES =
5
After receiving and considering the committee's report,
the thirty-first (1949) legislature adopted, as part of its
general appropriations act, a proviso’ (similar to that
adopted by the 1947 legislature )'® designed to prevent
public funds from reaching public employees who ad-
vocated, or who were members of organizations that ad-
vocated, the overthrow of the government of the United
States by force or violence.
In his message to the thirty-second legislature at the
commencement of its regular session in January, 1951,
the governor pointed out the national emergency then
existing, its causes and potential effects, and the stra-
tegic geographical position of the state of Washington
in any such emergency.'' He further urged that appro-
oo —
testimony which appears as prefatory remarks therein. Pertinent ex-
cerpts from the committee's final report to the legislature. including
the committee's conclusions prefacing these prior reports, are set out
in appendix B,
*t aws of 1949, chapter 242. § 2. p. 948. thereof provided, in part:
. That no part of any enevepriation contained in this act shall he
used to pay the salary or wages of any person who . . . advocates, or is
a member of an organization that advocates. the overthrow of the gov:
ernment of the United States by force or violence... .”
Laws of 19147, chapter 287, § 2. p. 1534.
"House Journal of the thirty-second legislature of the state of Washing:
ton (1951). p. 23:
“Again we meet in a time of great national emergency.
“All of us had fervently hoped for a long respite from the v iste and
sacrifice of war and preparation for war. Our country had placed chief
reliance in the United Nations to maintain world peace and order. We
had disbanded our armies, decommissioned our fleets of ships and
planes, dismantled our war plants, and turned our attention to the
pressing problems of our civilian economy.
“But the evil menace of expanding communism would noth.» it
so. While the rest of the world pursued a peaceful path. the forces of
communism, bent upon a wholly different course. were gathering vast
strength and power. Their method was regimentation. suppression. in-
filtration. intimidation and aggression. Their purpose was to push the
6
priate legislation be immediately enacted in order to curb
subversive activities in this state, particularly in view of
the then existing national emergency and the disclosures
made through the efforts of the joint fact-finding commit-
tee on un-American activities (Canwell committee) cre-
ated by house concurrent resolution No. 10."
frontiers of that ideology so deeply into the territory and institutions
of free nations, that all the world would fall an easy prey. Then came
the day when the principles and authority of the United Nations were
openly defied in the halls at Lake Success, and physically challenged
on the Korean fields of battle.
“This nation and the world are now awake to the danger. We still
hope to avert World War III. But it is so perilously close that our na-
tion has already come virtually to a war footing. This is bringing with
it a fundamental change in our civilian economy, with resulting bur-
dens and sacrifices for all of us. If the emergency becomes more acute,
developing into a global war, we all face the risk of great loss and
suffering. We face these possibilities, not cheerfully, but with the
determination to do what must be done to preserve, for our children,
the way of life all of us so deeply cherish.
“It is in this setting that the Thirty-second Legislature of the State
of Washington meets to discharge its legislative duties.
“Our state occupies a position of great importance in this emer-
gency, as it did throughout World War II. It is a tremendous arsenal
for military might. Its strategic geographical location, moreover, has
special military signficance in any war with communism. .. .”
'2/ bid. p. 30:
“To further strengthen our civil defense program, we also must be
mindful of that small group of traitors within our citizenry «ho
would destroy our freedom from within. In this connection I strongly
urge that the legislature give thought to enactment of appropriate
provisions for the curbing of subversive activity, and to protect our
free institutions from perversion into weapons of aggression against
us in the hands of our enemies.
“By Concurrent Resolution No. 10 the Thirtieth Legislature created
the Joint Legislative Fact Finding Committee on Un-American Activ-
ities. Through the labors of this committee much was learned of the
degree to which disloyal groups had infiltrated into organizations of
our senior citizens, into various economic and educational groups. As
the result of these disclosures. some remedia! action was taken but in
the light of the grave emergency which we now face. additional action
must be taken immediately. Therefore a bill is being prepared calcu-
lated to give support at the state level to the efforts of our various
federal agencies charged with the responsibility of combating these
forces of tyranny and enslavement. . . .”
‘
The subversive activities act originally passed by the
legislature in 1951 consisted of twenty-two sections. Five
of these (§§ 6, 7, 8, 10, and 21), containing administrative
provisions, were vetoed by the governor.'’ The remain-
ing seventeen sections became effective on March 19.
1951, upon executive approval.'* Each of these sections
falls into one of three general classifications: pena!, ad-
ministrative, or regulatory.
Sections eleven, twelve, thirteen, fourteen and seven-
teen bear directly upon the problem before us and are
set out in the margin.’ These sections impose conditions
upon eligibility for public employment in sensitive oc-
cupations and require that all such state employees, or
applicants for state employment, take an oath, subject
to the penalties of perjury, as a prerequisite of public
employment or the continuance thereof.
“Laws of 1951. chapter 254. $$ 6. { and 8. pp. 797, 798. $ 10 p. 798.
$ 21. p. 802. Senate Journal of the thirty-second legislature of the
state of Washington, p. 842.
Laws of 1951, chapter 254. § 22. p. 803.
Laws of 1951. chapter 251;
“Sec. 11. No subversive person. as defined in this act. shall be
eligible for employment in. or appointment to any office. or any
position of trust or profit in the government. or in the administration
of the business. of this state. or of any county, municipality, or other
political subdivision of this state. (cf. ROW 9.811.060)
“Sec. 12. Every person and every board, commission, council, de-
partment, court or other agency of the state of Washington or any
political subdivision thereof. who or which appoints or employs or
supervises in any manner the appointment or employment of public
officials or employees shall establish by rules, regulations or other.
wise, procedures designed to ascertain whether any person is a sub
versive person. In securing any facts necessary to ascertain the infor.
mation herein required. the applicant shall be required to sign a
written statement containing answers to such inquiries as may he
material. which statement shall contain notice that it is sulsject to the
penalties of perjury. (Italics ours.) +ef. RCW 9.811.070)
§
The terms “subversive person,” “subversive organiza-
“Sec. 13. The inquiries prescribed in preceding sections, other than
the written statement to be executed by an applicant for employment,
shall not be required as a prerequisite to the employment of any per-
sons in any case in which the employing authority may determine.
and by rule or regulation specify the reasons why, the nature of the
work to be performed is such that employment of such persons will
not be dangerous to the health of the citizens ur the security of the
governinents of the United States. the state of Washington. or any
political subdivision thereof. (cf. RCW 9.81.080)
“Sec. 14. Every person who, on June 1, 1951, shall be in the em-'
ploy of the state of Washington or of any political subdivision
thereof. other than those now holding elective office shall be required
on or before July 1, !951. to make a w ‘ten statement which shall
contain notice that it is subject to the pena.ties of perjury, that he or
she is not a subversive person as defined in this act; namely, any
person who commits, attempts to commit, or aids in the commission.
or advocates, abets, advises or teaches by any means any person to
commit, attempt to commit, or aid in the commission of any act in-
tended to overthrow. destroy or alter. or to assist in the overthrow.
destruction or alteration of. the constitutional form of government
of the United States, or of the state of Washington, or any political
subdivision of either of them. by revolution, force, or violence; or
who is a member of a subversive organization or‘a foreign subversive
organization, as more fully defined in this act. Such statements shall
he prepared and execution required of and by every person and every
hoard. commission, council. code department, court or other agency
of the state of Washington or any subdivision thereof responsible
for the supervision of other employees. for the employees under the
jurisdiction thereof. Any such person failing or refusing to execute
such a statement or who adinits he is a subversive person as defined
in this act shall immediately be discharged. . . .
“Sec. 17. Every written statement made pursuant to this act by an
applicant for appointment or employment. or by any employee. shall
be deemed to have been made under oath if it contains a declaration
preceding the signature of the maker to the effect that it is made under
the penalties of perjury. Any person who wilfully makes a material
misstatement of fact (a) in any such written statement, or (b) in any
afidavit made pursuant to the provisions of this act. or (c) under
oath in any hearing conducted by any agency of the state. or of any
of its political subdivisions pursuant to this act, or (d) in any writ-
ten statement by an applicant for appointment or employment or by
an employee in any state aid or private institution of learning in this
state, intended to determine whether or not such applicant or em-
ployee is a subversive person as defined in this act, which statement
contains notice that it is subject to the penalties of perjury, shall be
subject to the penalties of perjury, as prescribed in chapter 9.72.
R.C.W.” (ef. RCW 9.81.110.)
9
tion,” and “foreign subversive organization” (used in
these five sections) are particularly defined in section
one of the act. The definition of “subversive person”
was amended in 1953'° to specifically provide that a
person must have knowledge that an organization is a
“subversive organization” or “foreign subversive organiza-
tion” (as elsewhere defined in section one) before such
person becoming or remaining a member thereof can be
deemed to be a “subversive person.” (This 1953 amend-
ment is a complete answer to respondents’ argument in
their brief concerning the alleged lack of scienter as an
essential element in this section.) Cf. Wieman v. ('pde-
graff, 344 U.S. 183, 97 L. Ed. 216, 73 S. Ct. 215 (1952).
With this legislative history and background in mind,
we now turn to the consideration of Laws of 1955, chapter
377, which was held by the trial court to be unconstitu-
tional in its entirety. As previously stated, this act con-
sists of only four sections, of which the first two purport
to amend sections twelve and thirteen of the 1951 act
(RCW 9.81.070 and .080), and the latter two purport
to add new sections thereto (cf. RCW 9.81.082 and .083).
These latter two sections will be considered in the order
ruled upon by the trial court and discussed by the re-
spective parties in their briefs.
Section three of the amendatory act provides:
“For the purpose of this act, membership in a sub-
versive orgenization shall be membership in any organ-
ization after it has been placed on the list of organizations
6] aws of 1953. chapter 142. p. 273.
10
designated by the attorney general of the United States
as being subversive pursuant to executive order No. 9835."
The trial court concluded that:
“Section 3 of chapter 377, Laws of 1955, constitutes an
unconstitutional delegation of legislative authority to an
officer of the United States over which the state govern-
ment has no control and without adequate standards
being set forth to guide such officer in the exercise of
such delegation.”
[1] Appellants first assign error to this conclusion. They
argue that section three was merely an adoption by our
legislature of a factual determination made by a foreign
administration agency (U.S. attorney general). This argu-
ment is unappealing for at least three reasons:
(1) Executive order No. 9835, promulgated by the
president of the United States on March 21, 1947 (5
U.S.C.A., § 631; 12 F.R. 1935; 3 C.F.R. 1943-1948 Comp.
p. 627), was specifically revoked by executive order No.
10450 (5 U.S.C.A., § 631, 18 F.R. 2489, 3 C.F.R., 1953
Supp., p. 72), issued April 27, 1953 (almost two years
prior to the enactment of § 3.
(2) The method followed by the attorney general
for listing subversive organizations pursuant to executive
order No. 9835 was held by the supreme court of the
United States to be violative of the due process clause
of the fifth amendmen: to the United States constitution
in Joint Anti-Fascist Refugee Committtee v. McGrath,
341 U.S. 123, 95 L. Ed. 817, 71 S. Ct. 624 (April 30,
1]
1951), which was almost four years prior to the enact-
ment of § 3.
‘
(3) Section three purported to include “membership
in any organization after it has been placed on the list
of organizations designated by the attorney general of
the United States as being subversive.” This would in-
clude organizations listed by him in futuro ad infinitum
Statutes attempting to adopt by reference future Federal
rules, regulations or statutes are unconstitutional. State
ex rel. Kirschner v. Urquhart, 50 Wn.(2d) 131, 310 P.
(2d) 261 (1957).
Thus it is apparent that section three purported to
adopt unconstitutional findings of the attorney general,
promulgated pursuant to an executive order, which had
been revoked and superseded long prior to the enact-
ment of the 1955 act. We cannot, under the guise of
judicial interpretation, interject executive order No. 10450
(and the due process procedure provided for the listing
of subversive organizations thereunder) into section three.
contrary to the express terms théreof. This section is,
therefore, unconstitutional and void. State ex rel. Kirsch-
ner v. Urquhart, supra. For these reasons, the result
reached by the trial court is correct, and appellants’ first
assignment of error cannot be sustained.
Appellants next assign error to the trial court’s con-
clusion that: S
%
“Section 4 of chapter 377, Laws of 1955, amends § 1,
chapter 254, Laws of 1951, in that it adds a new category
12
_ of subversive organization and of subversive activity. This
section, therefore, embraces subjects not set forth in the
title to chapter 377, Laws of 1955, and is, therefore, un-
constitutional.”
(It must be noted that the court’s reference in this
conclusion to “§ 1, chapter 254, Laws of 1951” is inac-
curate, in that it overlooks the fact that section one was
previously amended by Laws of 1953, chapter 142, § 1,
p. 273.)
Section four of the 1955 act provides:
“The communist party is a subversive organization
within the purview of RCW 9.81 and membership in
the communist party is a subversive activity thereunder.”
Apparently, the above quoted conclusion of the trial
court is based on Art. II, § 19, of the Washington con-
stitution, requiring that:
“No bill shall embrace more than one subject, and
that shall be expressed in the title.”
If section four is in fact amendatory of a prior section
of the subversive activities act, as the trial court concluded,
it would also violate Art. IT, § 37 of the Washington con-
stitution, which provides:
“No act shall ever be revised or amended by mere
reference to its title, but the act revised or the section
amended shall be set forth at full length.”
[2] Respondents’ argument is that section four amends
the definition of “subversive organization” (Laws of 1953,
13
chapter 142, § 1; RCW 9.81.010) by establishing con-
clusively that the communist party is such an organiza-
tion, thereby creating a “new and different crime” under
Laws of 1951, chapter 254, § 3 (RCW 9.81.030). This
contention is untenable.
Section four of the 1955 act is nothing more than the
legislature's declaration of its recognition that the com-
munist party falls within the definition of “subversive
organization” contained in Laws of 1953, chapter 142,
§ 1. As such, it is supplementary rather than amendatory.
Therefore, the sections of the act which it supplements
need not be set out in full in order to satisfy the last
mentioned constitutional requirement, because:
“... If the amendatory act only adds a new section to
the old act, only the new section need be set forth in
the body of the amendatory act.” 1 Sutherland, Statu-
tory Construction (3d ed.), 407, § 1928.
See, also, State v. Lawson, 40 Wash. 455, 82 Pac. 750
(1905); State ex rel. Washington Toll Bridge Authority
v. Yelle, 32 Wn.(2d) 13, 200 P.(2d) 467 (1948): Bell-
ingham v. Hite, 37 Wn.( 2d) 652, 225 P.(2d) 895 (1950).
[3] Laws of 1955, chapter 377, is entitled:
“An Act relating to subversive activities; requiring state,
county and municipal employers to ask employees under
oath concerning memberships in the communist party or
”
other subversive groups; and amending .. .” (Italics ours. )
The single subject of the entire act, “subversive activi-
ties,” is “expressed in the title” as required by Art. II,
14
§ 19, of the state constitution. That part of the title
above italicized characterized the communist party as
a “subversive group” and gives sufficient notice of the
contents of section four.
We are of the opinion that the title of the 1955 act
does not violate either of the constitutional provisions
above discussed and that the trial court’s conclusion,
holding to the contrary, is erroneous.
Error is next assigned to the trial court's conclusion that:
“Chapter 377, Laws of 1955, is unconstitutional in its
entirety ... because... §§ 3 and 4 of the chapter are
not separable from the first two sections.”
[4] In In re Hendrickson, 12 Wn.(2d) 600, 123 P.
(2d) 322 (1942), we recognized that the ultimate test
of separability is the intention of the legislature, as de-
termined by the court, and restated the rule to be:
“.. that the entire statute will fall where the con-
stitutional and unconstitutional provisions are so connected
and interdependent in subject matter, meaning, and pur-
pose that it cannot be believed that the legislature would
have passed the one without the other, or where the
portion eliminated is so intimately connected with the
rest of the statute as to make it useless to accomplish
any of the purposes of the legislature. [Citations. ]”
[5] Applying these principles to the 1955 act, we find
that when sections one and two thereof are substituted
for sections twelve and thirteen of the act of 1951.
15
which they amend, the legislature has stated its intention
in section eighteen of the original act that these sections
be considered separable. While such a saving clause is
not conclusive, it does give us assurance that the legis-
lature would have passed the act even though it knew
that section three were to be eliminated. See State ex rel.
King County v. State Tax Comm., 174 Wash. 336, 24
P.(2d) 1094 (1933). But apart from this, our analysis
of the purpose of the several sections of the 1955 act
clearly manifests the intention of the legislature that
these sections be separable and are capable of function-
ing independently of each other.
[6] Sections one, two, and four of the 1955 act relate
to subversive activities generally, and to the communist
party particularly. Section three, however, pertains to
subversive activities generally and, in particular, is noth-
ing more than an abortive attempt on the part of the
legislature to designate by reference about 250 other
organizations as subversive within the definition con-
tained in section one of the 1951 act, as amended by
Laws of 1953, chapter 142, § 1 (cf. RCW 9.81.010). By
designating the communist party as a subversive organ-
ization in section four, the legislature supplied the rea-
son why it required in section one, as a condition of
public employment, that every present and prospective
public employee state, under oath, whether he or she
was then a member of the communist party, except in
nonsensitive occupations, as provided in section two Ob-
viously, sections one and four were designed to prevent
16
any claim (which the legislature found to be entirely
unfounded in fact) that the communist party was not, and
is not, a “subversive organization” as defined in the 1951
act, as amended.
It is thus apparent that the invalidity of section three
does not vitiate the remainder of the 1955 act. Absent
section three, the entire subversive activities act (in-
cluding the amendments made by section one, two, and
four of the 1955 act) can be administered in precisely
the same manner as with section three, with the single
exception that no list of alleged subversive organizations
prepared by the United States attorney general may be
used to designate membership in proscribed organiza-
tions. Since section three of the 1955 act is clearly sep-
arable and a workable statute remains after its severance,
we cannot sustain the above quoted conclusion of the
trial court.
[7] Respondents further argue that “the state has no
power to enact a subversive activities control statute.”
They cite Pennsylvania v. Nelson, 350 U. S. 497, 100 L. Ed.
640, 76 S. Ct. 477 (1956), wherein the defendant was
charged and convicted in the Pennsylvania state court
with an attempt to overthrow the government of the
United States by force and violence contrary to the Penn-
sylvania sedition act of 1949. The United States supreme
court (affirming the decision of the supreme court of
Pennsylvania) there held that certain Federal legislation
had pre-empted the field of sedition against the United
17
States." As we understand that case, the court did not
hold, either expressly or by implication, that a sovereign
state was precluded from enacting laws designed to sup-
press acts of sedition against the state itself. Moreover,
the Nelson case had no relation whatever to, and did
not involve, the power of a state to enact state laws and
regulations prescribing qualifications prerequisite to pub-
lic employment. But even if we assume, arguendo, that
Federal legislation has pre-empted the field of sedition
against both Federal and state governments, stil] that
which has just been said above concerning separability
of the 1955 act applies with equal force to the separabil-
ity of the penal sections (§§ 2 and 3) of the 1951 act
from those sections (§§ 1 and 2 of the 1955 act) pre-
scribing qualifications for public employment.
Respondents complain that the statute’® which requires
them to execute the oath in question is a bill of attainder
and, as such, contravenes Art. I, § 23, of the state con-
stitution and Art. I, § 10, of the United States constitu-
tion.’ Their argument is substantially the same as that
rejected in this court in Huntamer v. Coe, 40 Wn.( 2d)
767, 246 P.(2d) 489 (1952), wherein we held that sec-
tion 16, as implemented by section 1(e), of the act of
/
"See State v. Diez ( Fla.) 97 So.1 2d) 105 (1957) for a comprehensive
discussion of the inapplicability of the Velson case to state statutes
prescribing conditions precedent to public employment.
'8Laws of 1951. chapter 254. § 12. as amended by Laws of 1955, chap-
ter 377. § 1.
'*No bill of attainder. ex post facto law . . . shall ever be passed.”
Art. L. § 23. of the Washington constitution.
“No state shall .. . pass any bill of attainder, ex post facto law.
..” Art. TE § 10. of the United States constitution.
18
1951 (requiring a similar oath as a condition precedent
to filing a declaration of candidacy for any public office )
was not unconstitutional for these reasons.
[8] Section twelve of the 1951 act, as amended by
Laws of 1955, chapter 377, § 1, requires only that every
present or prospective public employee state, under oath,
whether he or she is “a member of the communist party
or other subversive organization” at the time the oath
is taken. No punishment for past conduct or political
activity is involved. Only one qualification precedent to
public employment is imposed. In short, this section is
clearly neither ex post facto nor in the nature of a bill of
attainder. Huntamer v. Coe, supra; Garner v. Board of
Public Works of Los Angeles, 341 U. S. 716, 95 L. Ed.
1317, 71 S. Ct. 909 (1951); American Communications
Ass'n v. Douds, 339 U. S. 382, 413, 94 L. Ed. 925, 70
S. Ct. 674 (1949); Pickus v. Board of Education of
Chicago, 9 Ill.(2d) 599, 1388 N. E.(2d) 532 (1956).
[9] Nor do we find merit in respondents’ assertion
that section twelve, as amended, violates Art. I, § 9, of
the Washington constitution”? or that clause of the fifth
amendment to the United States constitution which pro-
vides that no person “shall be compelled in any criminal
case to be a witness against himself.” Respondents are
not compelled by section twelve to do anything. But,
if they desire to remain in public employment, they
must comply with the standards of eligibility established
20Ny person shall be compelled in any criminal case to give evidence
against himself, or be twice put in jeopardy for the same offense.”
Art. 1. § 9. of the Washington constitution.
19
by the legislature, and their refusal to do so renders them
ineligible for further employment.
Respondents also attack the oath requirement of the
act, contending that it abridges their rights of freedom
of speech and assembly protected by Art. I, §§ 4 and 5,
of the Washington constitution,”' and the first and four-
teenth amendments to the United States Constitution.”
Pickus v. Board of Education of Chicago, supra, was
an action for a declaratory judgment and an injunction
holding unconstitutional, and restraining the enforcement
of, that section of the Illinois finance act of 1955 which
required all public employees to execute a “non-com-
munist affidavit” as a condition precedent to receiving
compensation for their services from the state or its
political subdivisions. In the course of its opinion, hold-
ing the section involved to be constitutional, the Illinois
supreme court, speaking through Chief Justice Kling-
hiel, said:
“Plaintiffs assert that section 30b is an unwarranted
denial of the right to speak. They fail to point out,
however, the respect or way in which they consider such
right to be involved here. The statute simply provides
21The right of petition and of the people peacefully to assemble for
the common goud shal! never be abridged.” § 4.
“Every person may freely speak. write. and publish on all subjects.
heing responsible for the abuse of thet right.” § 5.
22“(Congress shall make no law respecting an establishment of religion
or prohibiting the free exercise thereof: or abridging the freeden of
speech, or of the press: or the right of the people peaceably to assem-
ble. and to petition the government for a redress of grievances.”
Art I.
20
for the execution of an affidavit of fact. It does not
purport to limit or restrict the right of employees to
speak or assemble.”
And, in Albert Appeal, 372 Pa. 13, 92 A.(2d) 66% (1952),
a teacher in the Pittsburgh public school system was
dismissed and her contract terminated by the board of
education after a hearing on charges preferred by the
superintendent of schools of Pittsburgh that she was a
communist, and for “advocation of or participating in
un-American or subversive doctrines.” In affirming the
decision dismissing the teacher's appeal, the court said:
“All persons born or naturalized in the United States. and subject
to the jurisdiction thereof. are citizens of the United States and of
the state wherein they reside. No state shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the
United States; nor shall any state deprive any person of life. liberty.
or property. without due process of law. nor deny to any person
within its jurisdiction the equal protection of the laws.” Art. XIV.
$1.
“There is no question of the right of free speech in-
volved in this case. Miss Albert is not being penalized
in her capacity as a private citizen because of any po-
litical, economic or social views she may entertain or
any expression she may care to give to those views. The
concern here is with her rights as a teacher, and the
legislature can certainly prescribe qualifications for teach-
ers in the public schools with respect not only to their
academic attainments but also to their moral characters
and their loyalty to the state and federal governments.
Judge (later Mr. Justice) Holmes, in a characteristically
epigrammatic phrase, said in McAuliffe v. Mayor of New
Bedford, 155 Mass. 216, 220, 29 N. E. 517: ‘The pe-
2!
titioner may have a constitutional right to talk politics,
but he has no constitutional right to be a policeman. To
the same effect, Mr. Justice Minton, speaking for the
United States Supreme Court, said in Adler v. Board
of Lducation of the City of New York, 342 U. S. 485,
492 [96 L. Ed. 517, 524, 27 A. L. R.(2d) 472, 476
(1952)]: ‘It is clear that such persons [employed or
seeking employment in the public schools} have the right
under our law to assemble, speak, think and believe as
they will....It is equally clear that they have no right
to work for the State in the school system on their own
terms. ...If they do not choose to work on such terms,
they are at liberty to retain their beliefs and associations
and go elsewhere. Has the State thus deprived them of
any right to free speech or assembly? We think not.”
After stating the matter just quoted, the United States
supreme court, in the Adler case, went on to say:
“If, under the procedure set up in the New York law, a
person is found to be unfit and is disqualified from
employment in the public school system because of mem-
bership in a listed [subversive] organization, he is not
thereby denied the right of free speech and assembly.
His freedom of choice between membership in the organ-
ization and employment in the school system might be
limited, but not his freedom of speech or assembly,
except in the remote sense that limitation is inherent
in every choice. Certainly such limitation is not one the
state may not make in the exercise of its police power to
protect the schools from pollution and thereby to defend
22
its own existence.”
In Fitzgerald v. Philadelphia, 376 Pa. 379, 102 A.(2d)
887 (1954), a nurse, who had been dismissed from her
employment in the Philadelphia General Hospital for
declining to take the oath required by section five of the
Pennsylvania loyalty act of 1951,?’ sought reinstatement.
In affirming a judgment adverse to her, the supreme
‘ court of Pennsylvania said:
“We do not understand that appellant ai gues—or indeed
could argue—that the Commonwealth or any of its po-
litical subdivisions cannot refuse employment, or discon-
tinue it, in the case of anyone who is knowingly a
member of a subversive organization. It would be in-
tolerable for any government to retain in its employ one
who advocates its overthrow by force or violence or
knowingly consorts with others in an organization having
such an ubjective. What we held in Albert Appeal, 372
Pa. 13, 92 A.(2d) 663, and what the Supreme Court of
the United States held in Adler v. Board of Education of
the City of New York, 342 U. S. 485, in regard to teach-
ers applies equally to all public employees, namely, that
the legislature, as a condition of their employment, may
prescribe qualifications with respect not only to their
general attainments but also to their moral character
and their loyalty to the state and federal government,
and, to that end, may deny them public employment
if they are knowingly members of a disloyal and seditious
?5It is significant to note that the statute there involved is strikingly
similar to section twelve of the subversive activities act which is
involved in this case.
23
organization.... That being so, the oath prescribed by
the 1951 Act is obviously justified for the purpose of in-
forming the appointing authority as to whether the em-
plovee is in fact a member of an organization which he
knows is subversive in character and therefore is not a
fit person to be entrusted with the duty of supporting
and advancing the interests of the very government whose
destruction he is seeking to accomplish.” °
Shortly after this case was argued in this court, the
supreme court of the United States rendered its decisions
in Beilan v. Board of Education, 357 U. S. 399, 2 L. Ed.
(2d) 1414, 78 S. Ct. 1317 (1958), and Lerner v. Casey,
357 U. S. 468, 2 L. Ed.(2d) 1423, 78 S. Ct. 1311 (1958).
In the former, a teacher was discharged by the board of
education on its finding of “incompetency” because of his
refusal to answer questions relating to his past com:
munistic affiliations and activities. In upholding the de-
cision of the Pennsylvania supreme court, sustaining the
board’s action, the United States supreme court carefully
pointed out that the teacher was discharged not for
disloyalty, but for “incompetency,” and that such dis-
charge did not violate the due process clause of the
fourteenth amendment.
In the Lerner case, the court upheld a judgment of
the New York court of appeals, which had the effect of
sustaining the dismissal of a subway conductor, em-
ployed by the New York City Transit Authority, who,
when asked (by the commissioner of investigation of
New York City) whether he was then a member of the
24
communist party, refused to answer, claiming his priv-
ilege against self-incrimination under the fifth amend-
ment. He was subsequently suspended, and later dis-
charged. A finding “ ‘that, upon all the evidence, reason-
able grounds exist for belief that, because of his doubtful
trust and reliability . . .’ [his] continued employment would
endanger national and state security,” was based on his
refusal to answer the question asked. The supreme court
acepted the reasoning of the court of appeals that the
city employee had been discharged neither
“... because of any inference of Communist Party mem-
bership which was drawn from the exercise of the
Fifth Amendment privilege [which, the court pointed
out, was not available to appellant through the four-
teenth amendment in this city investigation], nor be-
cause of the assertion of that constitutional protection=
but rather because of the doubt created as to his ‘reli-
lity by—hi s relevant question-
put by his employer, ...” -
Like the Lerner case, supra, the question which sec-
tion twelve of our 1951 act, as amended in 1955, re-
quires respondents to answer is whether or not they
are members of the communist party, or other subversive
organization. :
That the communist party was, in fact, a subversive
organization, as defined in the 1951 act, at the time that
our legislature designated it as such (by § 4 of the 1955
act) can scarcely be doubted. (See appendix C. )
[10] Even prior to the commencement of hostilities
25
in Korea in 1950, numerous judges had recognized the
communist party as a part of a world conspiracy having
as its prime objective the overthrow of the United States
government by force and violence, or whatever means
possible, constitutional or otherwise.** Since then, Con-
gress, in 1950, enacted legislation designed to control
the communist party.?* and, in 1954, proscribed it.“* The
courts of New Jersey?” and Pennsylvania’ take judicial
notice of the fact. We can, and do now, hold likewise.
hecause the fact that the communist party is a subversive
organization is now a matter of common knowledge.
[11} It is settled law that the state may inquire of its
employees regarding matters .that may prove relevant
to their fitness and suitability for public service. Adler
v. Board of Education, supra; Garner v. Los Angeles
Board of Public Work, supra. Particularly is this true with
respect to the employment of teachers in its public schools
and institutions of higher learning. The reasons compell-
ing this conclusion are aptly pointed out by the New
Jersey supreme court in Laba v. Newark Board of Edu-
cation, 23. N. J. 364, 129 A.(2d) 273 (1957), which
4 g., Concurring opinion of Mr Justice Jackson in) Imerican Com
munications Assno+. Douds. 39 Us. 382. OLE. Fd. 925. TOS. 4
674; dissenting opinion of Mr. Chief Justice Stone in Schnerderman
vr. United States. 320 1. 8S. 118. 87 LL. Rd. 1796, 68 8. Ot. 1533
(1942); dissenting opimons in State ox rel. Huff +. Reeves. 5 Wo
(2d) 637, 106 P.t2dy 729. 130 ALL. RL 1405 1 1904)
25Title | ithe subversive activities control act of 19500 of the internal
security act of 1950 «the MeCarran act) of September 23. 1950. 64
Stat. 987. 50 | se i N 781. et seq.
26Communist control act of 1954 of August 24, 1054. 68 Stat. 775. 50
a. ae ees A. 8 Stl. et seq. ’
2?Laba v. Newark Board of Education. 23 N. J. 364. 129 A.t2ds 273
(1957).
28 4lhert Appeal, 372 Pa. 13. 92 A2d) 663 11952).
26
quoted with approval from Thorp v. Board of Trustees of
Schools for Industrial Education, 6 N. J. 498, 79 A.(2d)
462 (1951), judgment vacated as moot, 342 U. S. 803,
96 L. Ed. 608, 72 S. Ct. 35 (1951), as follows:
“The maintenance of the purity of the educational
process against corruption by subversive influences is of
the highest concern to society. It is in no real sense a
denial of academic freedom to require of a teacher, as a
condition to employment, a sworn disavowal of allegi-
ance to the doctrine of force or violence as a mode of
overthrowing government. That would seem to be axi-
omatic. Loyalty to government and its free democratic
institutions is a first requisite for the exercise of the teach-
ing function. Freedom from belief in force or violence
as a justifiable weapon for the destruction of government
is of the very essence of a teacher's qualifications. The
apprehended danger is real and abiding. We have long
had evidences of the pressure here of a godless ideology
ruthlessly fostered by a foreign power which has for
its aim the violent overthrow of government and free
society. And one of its weapons is the debasement of
teaching as a softening measure in the consummation
of the subversive process. The school system affords
the opportunity and means for subtle infiltration. There
is no intrusion upon personal freedoms « hen government
intervenes, as it has here, to avert this peril to its very
existence. A teacher who is bereft of the essential quality
of loyalty and devotion to his government and the fun-
damentals of our democratic society is lacking in a basic
qualification for teaching. The teacher is not obliged to
27
take the oath; but if he refuses to do so he is not entitled
to teach. In the current struggle for men’s minds, the
State is well within its province in ensuring the integrity
of the educational process against those who would per-
vert it to subversive ends.” (Italics ours. )
In Adler v. Board of Education, supra, the supreme
court said:
“...A teacher works in a sensitive area in a school-
room. There he shapes the attitude of young minds
towards the society in which they live. In this, the state
has a vital concern. It must presereve the integrity of the
schools. That the school authorities have the right and
the duty to screen the officials, teachers, and employees
as to their fitness to maintain the integrity of the schools
as a part of ordered society, cannot be doubted. One's
associates, past and present, as well as one's conduct,
may properly be considered in determining htness and
loyalty. From time immemorial, one’s reputation has been
determined in part by the company he keeps. In the
employment of officials and teachers of the school sys-
tem, the state may verv properly inquire into the com-
pany thev keep, and we know of no rule, constitutional
or otherwise, that prevents the state, when determining
the fitness and loyalty of such persons, from considering
the organizations and persons with whom they associate.”
(Italics ours. )
In this case, because of their positions in a “sensitive”
area, each respondent is required, by section twelve of
the 1951 act, as amended in 1955, to state, upon oath,
28
whether he is a member of the comumnist party or other
subversive organization.
[12] The foregoing authorities clearly hold that, with-
out violating any of the constitutional rights here invoked
by respondents, the state is entitled to ask this question
and to demand an answer as a condition of continued
employment. Refusal to answer is sufficient grounds for
discharge, whether it be for “incompetency” (Beilan v.
Board of Education, supra), or because by his lack of
candor he provides evidence of his “doubtful trust and
reliability.” (Lerner v. Casey, supra.)
[13] Respondents also contend that the form of oath
which appelants demanded that they sign violates the
due process clause of the fourteenth amendment” to the
United States constitution, and Art. I, §§ 3 and 12,” of
the state constitution, in failing.to include the element
of scienter of the subversive character of a subversive
organization on the part of the prospective affiant. As
we interpret the form >f oath, we find that this element
is implied in every clause thereof and of the perticnt
statutory provisions. See Garner v. Board of Public Works
of Los Angeles, supra. As so construed, the case for
Wieman v. Updegraff, supra, on which respondents rely.
has no application.
29See note 21. supra.
‘No person shall be deprived of life. liberty, or property without due
process of law.” Art. I. § 3. of the Washington constitution.
“No law shall be passed granting to any citizen. class of citizens. or
corporation, other than municipal, privileges or immunities which.
upon the same terms, shall! not equally belong to all citizens or cor-
porations.”” Art. I, § 12. of the Washington constitution.
29
Conclusion
No authority, state or Federal, has been called to our
attention (and we have discovered none from our own
research) holding either:
(a) That the states have been deprivec of their con-
trol over public schools or institutions of higher learning
operated by them, including the power to protect the
students therein against the possible exertion of sub-
versive influence by their teachers or other instructors; or
(b) That the states have been deprived of the right
to investigate the qualifications (including loyalty) of
their employees who are paid by public funds.
{14} In the absence of such authority, this court must
hold that all of the provisions of the Laws of 1955,
chapter 377, except section three thereof, are a valid
exercise of the sovereign power of the state for the pro-
tection of the state of Washington and its existing edu-
cational institutions, and their respective students, under
the tenth amendment to the United States constitution,
reading as follows:
“The powers not delegated to the United States by the
constitution, nor prohibited by it to the states, are reserved
to the states respectively, or to the people.”
We are further of the opinion that the 1955 act (ex-
cept for § 3) does not in any respect contravene any of
the provisions of our state constitution or of the United
States constitution which have been invoked by respond-
ents.
30
It follows from what has been said herein that the
action of appellants in demanding that respondents sign
the form of oath attached to the complaint was correct.
The decree of the trial court is reversed with direc-
tions to dissolve the permanent injunction restraining
appellants from performing their official duties under the
1955 act (except § 3) with respect to respondents and
to dismiss their action.
Neither party shall be allowed costs in this court.
ALL Concur.
APPENDIX A
Excerpts from House Concurrent Resolution No. 10,
Laws of 1947, p. 1378.
“Wuereas, These are times of public danger, subver-
sive persons and groups are endangering our domestic
unity, so as to leave us unprepared to meet aggression,
and under cover of the protection afforded by the bill
of rights these persons and groups seek to destroy our
liberties and our freedom by force, threats and sabotage,
and to subject us to the domination of foreign powers; and
“WuereEas, Recent announcements by responsible of-
ficers of the federal government indicate the seriousness
of the problem. J. Edgar Hoover, Director of the Fed-
eral Bureau of Investigation,’ recently said: ‘During the
*In 1957, after nearly forty years’ experience in dealing with commu-
nist activities in the United States. Mr. Hoover reported to the Amer-
ican public on this subject in “Masters of Deceit” (Librarw of Con-
gress Catalog Card No. 58-7643). For a description of communist
party operations in the United States. see parts IT. [1I. and IV.
31
past five years American Communists have made their
deepest inroads upon our national life. Their propaganda,
skillfully designed and adroitly executed has been pro-
jected into practically every phase of our national life.
The Communist influence has projected itself ‘nto some
newspapers, books, radio and the screen, some churches,
schools, colleges and even fraternal orders have been
penetrated, not with the approval of the rank and file,
but in spite of them’; and
“Wuerras, State legislation to meet the problem and
to assist law enforcement officers can best be based on
a thorough and impartial investigation by a competent
and active legislative committee;
“Now, Therefore, Be It Resolved, That there is here-
by created a Joint Legislative Fact-finding Committee
on Un-American Activities in the State of Washington
which shall investigate, ascertain, collate and appraise
all facts concerning individuals, groups or organizations
whose activities are such as to indicate a purpose to
foment internal strife, discord and dissension; infiltrate
and undermine the stability of our American institutions;
confuse and mislead the people; and impede the normal
progress of our state and nation either in a war time or
a peace time economy; and
“Be It Further Resolved, That in addition to other
duties imposed upon the committee, the committee shall
investigate the activities of groups and organizations whose
membership includes persons who are communists, or
any other organization known or suspected to be dom-
ot ee
5 fy 2 ‘
32
inated or controlled by a foreign power, which activities
affect the conduct of this state, the functioning of any
state agency, unemployment relief and other forms of
public assistance, educational institutions of this state sup-
ported in whole or in part by state funds, or any political
program; and
“Be It Further Resolved, That the Committee shall con-
sist of four members of the House of Representatives,
appointed by the speaker thereof; and three members
of the Senate appointed by the president thereof and
they shall be subject to confirmation of their respective
bodies. The speaker of the House of Representatives shall
appoint the chairman of the board; and
“Be It Further Resolved, That the committee hereby
created ... shall have ... all powers necessary or conveni-
ent to accomplish the objects and purposes of this reso-
lution, including but not limited to the following duties
and powers: ...
“(5) To hold public hearings at any place in the State
of Washington at which hearings the people are to have
an opportunity to present their views to the committee;
“(6) To make a complete study, survey and investi-
gation of every phase of the subject of this resolution,
including but not limited to the operation, effect, ad-
ministration, enforcement, and needed revision of any
and all laws in anywise bearing upon or relating to the
subject of this resolution;
“(7) To meet at any and all places in this state, in
33
public or executive session;
“(8) To act during this session of the legislature, in-
cluding any recess hereof, and after final adjournment
hereof until commencement of the thirty-first legislature.
“(9) To file a report with the thirty-first legislature .
APPENDIX B
I.
Pertinent prefatory remarks of the Joint Fact-finding
Committee on Un-American Activities in the State of
Washington addressed to the Speaker of the House of
Representatives and the Thirtieth Legislature, contained
in the First Report, Un-American Activities in Wash-
ington State, 1948, are as follows:
“The testimony and evidence in the first hearings prove
conclusively, in the judgment of your Committee, that:
“1. Communists in the State of Washington operate
under, and undeviatingly follow, policies laid down for
them by the Soviet government.
“2. These policies are promulgated on a nation-wide
basis and that the activities of Communists in the State
of Washington are coordinated with Communist activities
in the other states of the union.
“3. The dovetailed nation-wide program is designed
to create distrust of their form of government in the
minds and hearts of the American people; create unrest
and civil strife, and impede the normal processes of
34
state and national government, all to the end of weak-
ening and ultimately destroying the United States as
a constitutional republic and thereby facilitating the
avowed Soviet purpose of substituting here a totalitarian
dictatorship.
“Fantastic as this may appear to the uninitiate and
the naive, the testimony produced at the public hearings
clearly brings into view the extreme danger of the Soviet
directed Communist conspiracy to the peace and security
of the people of the State of Washington and the United
States.”
Il.
Salient prefatory remarks of the above mentioned com-
mittee address to the Thirty-first Legislature of the State
of Washington, contained in the Second Report, Un-
American Activities in Washington State, 1948, are:
“The hearing, conducted by a legally appointed com-
mittee of the legislature, met with much resistance and
actual sabotage in its proceedings. Under the guise of
a ‘picket line’ Communist inspired marchers surrounded
the 146th Field Artillery Armory, scene of the hearing,
and raised their voices in shouting in an obvious attempt
to drown out the testimony of witnesses.
“Seattle police arrested ringleaders of the demonstra-
tions on charges of disorderly conduct. Joint efforts of
Seattle police and the State Patrol were necessary to
quell the disturbances so that your Committee could carry
on its hearings in an orderly manner.
f
35
“While the number of University faculty members ex-
posed as having or having had Communist Party affilia-
tions was relatively small compared with the actual size
of the faculty, the hearing developed that the pattern
of Communist infiltration was identical with that employed
by the Communists in other fields.
“In virtually every fief in which they ultimately have
been the dominating influence the Communists start with
a small but active minority who almost invariably con-
ceal their affiliations and operate as so-called ‘liberals.’
“Your Committee wishes to direct particular attention
to the testimony concerning not only the University of
Washington but to the proven Communist domination of
the Repertory Playhouse, an off-campus school of the
drama, which has drawn many of its students from the
University. Testimony concerning the affiliation of the
leadership of this school with Communist activities is pre-
ponderant, and, to the uninitiate, startling in the extreme.”
Il.
Excerpts from the Report of Un-American Activities
Committee to the Thirty-first Legislature of the State
of Washington (House Journal, 1949, P. 1095, et seq.):
“'..The State of Washington is acraw] with trained
and iron disciplined Communists. They have operated
here with seeming immunity. Many of them hold almost
impregnable positions of confidence and trust in their
communities. They have successfully infiltrated their con-
stant objectives, education, government, labor and mu-
36
nicipa! services. They effectively operate and manipulate
an incredible maze of propaganda outlets known as Com-
munist Front Organizations.
“If the Communists are permitted to work unhampered
a short time more in American education, the significance
of our historic background will be almost completely
lost to a generation of Americans. Our endeavors in un-
covering Communist activity in education were largely
confined to disclosure of evidence showing that Com-
munists agents are being employed by this state in :tax
supported institutions.
“We did not at this time investigate to any great ex-
tent the substance of any teaching. We felt it sufficient
to disclose the aims of the Communists in education and
point out the rigid discipline and control held by the
Party over its members. It then becomes obvious that a
member of the Communist Party could not possibly shed
his communism on entering the classroom. That as a Com-
munist he is dedicated to the overthrow of the system
and state employing him. That as a Communist he has
subordinated his belief in academic freedom to the will
of the Communist Party. By his own consent he is no
longer a free agent and when he talks of academic freedom
and civil rights it becomes the rankest hypocrisy. . . .
“Early in our investigations it became apparent that a
large and well-organized group of disciplined Communists
are operating in the State of Washington and have been
for many years. These Communists are agents of Soviet
37
Russia through their membership and strict loyalty to
the Communist Party. Some are aliens, more are Ameri-
can bom, but all are alike in their undeviating obedience
to the dictates of the Kremlin laid down to them in what
is known as the Party Line.
“Every Communist and Communist syinpathizer is a
a potential saboteur and spy and it is the rankest non-
sense to finance this program of self-destruction with
public funds. An alarming number of Communists are
on federal, state and municipal payrolls.
“The predatory nature of the world Communist Party
is well attested to by many former Communists in the
transcripts of our two public hearings which are ap-
pended to and made a part of this report. They are
identified as ‘First Report on Un-American Activities in
Washington State’ and ‘Second Report on Un-American
Activities in Washington State.’ /
,
“In addition to the printed reports of testimony taken
at our two public hearings, the Committee has accumu-
lated an index file of approximately 40,000 subjects deal-
ing with Communists, their Front Organizations and ac-
tivities and related materials. In the case of notorious
Communists such as... [certain persons named], their
cards may have scores of individual notations and cross ref-
erences. We have found a pattern of Communist intrigue
and conspiracy of alarming proportions extending over
the State of Washington and the Pacific Northwest like
a huge spider web. The cables of this web are imbedded
deep in federal, state, and municipal government, all levels
38
in education, state welfare programs, labor organizations
and religion. ...
“While engaged in an intensive investigation in these
two fields of Communist activity, it became increasingly
apparent that all Communist activity in all fields is inter-
related. That Communist agents while assigned to dif-
ferent projects are all dedicated to the same objective;
the softening up of our people for the eventual violent
overthrow of our government. That they work as a team
taking their orders from the top, and that they do not devi-
ate in the minutest detail from the Party Line and Party
instructions. This may involve the following out of some
minor Party assignment in a labor organization, outside
speaking engagements for a university professor, or obedi-
ence to accepted Party conduct before a legislative hear-
ing. No deviation from Party instructions is permitted—
”
none occurs....
(For the committee's remarks concerning “Academic
Freedom,” particularly with reference to its investiga-
tion of subversive activities at the University of Wash-
ington, see that subheading in its report commencing on
page 1110 (House Journal, 1949), and the letter of
Raymond B. Allen, then president of the University of
Washington, set out at length therein. )
Continuing the quote from the aforementioned report,
at page 1117 of the House Journal (1949):
“]. Edgar Hoover is one of the outstanding and most
vocal enemies of the Communists and has repeatedly
39
stated that the members of the Communist Party in Amer-
ica are fifth column agents representing a hostile govern-
ment....
“In reply to a question regarding the initiation of crim-
inal prosecutions by the FBI in cases where federal em-
ployees failed to disclose Communist Party affiliations,
Mr. Hoover stated:
““Criminal prosecutions are initiated in proper cases,
but not by the FBI. That is a responsibility of the
prosecuting officials of the Department of Justice and the
various United States attorneys. It’s not a simple matter
to prove that one is a Communist. In fact, the most
dangerous Communists in the nation today are not the
open, avowed card-carrying Party members. They seek
to attach themselves to liberal and progressive move-
ments. They conceal their real Communist affiliations,
because they know that once exposed they will outlaw
themselves in the hearts and minds of Loyal Americans.
A real Communist supporter can be identified by his acts
—he follows his party line, espouses the Party’s causes and
often furthers its aims by his overt acts.
““The Communist Partv has long regarded infiltration
of the government service as a project carrving highest
priority. They have sought to accomplish this under the
guise of secrecy. The menace of Communists in govern-
ment service is a threat to our national security because
of (1) opportunity to engage in espionage to the detri-
ment of our national defense; (2) opportunity to in-
fluence the formulation and carrving out of governmental
40
policies; (3) opportunity to promote Communist prop-
aganda, creating disruption and undermining public con-
fidence; (4) opportunity to recruit Party members in
government service, or soliciting the aid of innocent co-
workers in assisting them to carry out Party assignments;
and (5) opportunity to place other Communists in gov-
ernment service. One person whose loyalty to the Com-
munist cause exceeds his loyalty to the United States
could, if properly placed, do irreparable harm to our
security.
The committee recommended, inter alia:
“(11) To press with all vigor and energy and all its
resources the investigation into Communism in our tax-
supported schools, both common schools and institutions
of higher learning. Communists already have made salu-
tary inroads into our education system. Testimony, in-
cluding that of high ex-Communists, in the first and second
committee reports, disclose the alarming progress that
has been made.
“In the blue print for Communist infiltration the Com-
munist objective is summed up in these simple words:
““In destroying the capitalist monoply of the means
of production, the working class must also destroy the
capitalist monoply of education; that is, it must take
possession of all the schools.” *( Program of the Commu-
nist International, adopted by the Sixth World Congress,
Sept. 1, 1928, Moscow. “Blue Print for World Conquest,
page 206.)
4]
“As heretofore stated, your Committee had opportu-
nity merely to scratch the surface of Communist infiltra-
tion in our tax-supported school system.
“(12) The successor committee, or a separate com-
mittee be authorized to fully investigate the manner in
which textbooks and all other reading matter in our
schools is chosen and approved, and that the Legisla-
ture make it mandatory to either delegate existing agen-
cies or create a separate agency with the responsibility
of stemming the flow of subversive reading matter that
is finding its way into some of the classrooms of our
schools.
Appenpix C
I. ne
Schwartz, the Supreme Court, chapter 9, page 317:
“Perhaps the most striking judicial statement of the
actual character of the American Communist Party is
to be found in a 1950 opinion of Justice Jackson [con-
curring opinion in American Communications Ass'n vt.
Douds, 339 U. S. 382, 413, 94 L. Ed. 925, 70 S. Ct. 674
(1949)], which is remarkable for the breadth of its lan-
guage and its judicial notice of data not in evidence
before the Court.
“From information before its several Committees [reads
the opinion referred to], and from facts of general knowl-
edge, Congress could rationally conclude that, behind its
political partv facade, the Communist Party is a conspira-
torial and revolutionary junta, organized to reach ends
42
and to use methods which are incompatible with our con-
stitutional system. A rough and compressed grouping of
this data would permit Congress to draw these important
conclusions as to its distinguishing characteristics.
“1. The goal of the Communist Party is to seize pow-
ers of government by and for a minority rather than to
acquire power through the vote of a free electorate. . . .
“2. The Communist Party alone among American par-
ties past or present is dominated and controlled by a for-
eign government... .
“3. Violent and undemocratic means are the calculated
and indispensable methods to attain the Communist
Party's goal. It would be incredible naivete to expect the
American branch of this movement to forego the only
methods by which a Communist Party has anywhere
come into power.
“4. The Communist Party has sought to gain this lev-
erage and hold on the American population by acquiring
control of the labor movement. . . .
“5. Every member of the Communist Party is an agent
to execute the Communist program.
“Although unsupported by the kind of evidence that
would usually be required in a law court, the broad in-
dictment of the Communist Party in Justice Jackson's
“opinion comports with the common sense of the sub-
”
fect...
43
II.
Report of (United States) House of Representatives
Committee on Un-American Activities relative to the In-
ternal Security Act of 1950 (House Report No. 2980,
dated August 22, 1950):
“NECESSITY FOR LEGISLATION
“The need for legislation to control Communist activ-
ities in the United States cannot be questioned.
“Over 10 years of investigation by the Committee on
Un-American Activities and by its predecessor commit-
tee has established (1) that the Communist movement
in the United States is foreign-controlled; (2) that its
ultimate objective with respect to the United States is
to overthrow our free American institutions in favor of
a Communist totalitarian dictatorship to be controlled
from abroad; (3) that its activities are carried on by
secret and conspiratorial methods; and (4) that its activ-
ities, both because of the alarming march of Communist
forces abroad and because of the scope and nature of
Communist activities here in the United States, constitute
an immediate and powerful threat to the security of the
United States and to the American way of life.
“The Communist program of conquest through treach-
ery, deceit, infiltration, espionage, sabotage, corruption.
and terrorism has been carried out in country after coun-
try and is an ever-growing threat to the national security
of this and other countries. There is ample evidence that
one of the primary objectives of the world Communist
movement, directed from within the most powerful exist-
44
ing Communist totalitarian dictatorship, is to repeat this
pattern in the United States.
“There is incontrovertible evidence of the fact that the
Communist Party of the United States is dominated by
such totalitarian dictatorship and that it is one of the=
principal instrumentalities used by the world Communist
movement, in its ruthless and tireless endeavor to advance
the world march of communism.
“The findings which support these conclusions, and
the vast quantity of evidence on which they are based,
are set forth in detail in the numerous reports which this
committee and its predecessors have printed and circu-
lated. Corroboration has been supplied by independent
and exhaustive research by other committees of Congress.
“Concern over this threat is not limited to the legisla-
tive branch of our Government. At the present time 30
of the 70 major countries in the world have outlawed the
Communist Party. Many other countries have adopted
various legislative decrees against communism, and since
1947 the trend has been toward declaring all Communist
activities illegal. Panama was the latest to take such
action. This action came in April of this year. . . .
“Concern over the Communist threat has not been
overlooked by the different State legislatures. At the
present time 33 States have iaws against the displaying
of the ‘Red’ flag: 12 States have criminal anarchy laws;
16 have criminal svndicalism laws; 22 have sedition laws:
16 have laws against the Communist Party candidates
45
appearing on the election ballot; 19 States exclude Com-
munists from public employment; 28 States require loy-
alty oaths of all employees; and 20 States require teach-
ers to take loyalty oaths.”
ITI.
Communist Control Act of 1954, August 24, 1954, chap-
ter 886, § 2, 68 Stat. 775, 50 U. S.C. A., § 841.
“Sec. 2. The Congress hereby finds and declares that
the Communist Party of the United States, although pur-
portedly a political party, is in fact an instrumentality of
a conspiracy to overthrow the Government of the United
States. It constitutes an authoritarian dictatorship within
a republic, demanding for itself the rights and privileges
accorded to political parties, but denying to all others the
liberties guaranteed by the Constitution. Unlike political
parties, which evolve their policies and programs through
public means, by the reconciliation of a wide variety of
individual views, and submit those policies and programs
to the electorate at large for apnroval or disapproval, the
policies and programs of the Communist Party are secretly
prescribed for it by the foreign leaders of the world Com-
munist movement. Its members have no part in deter-
mining its goals, and are not permitted to voice dissent
to party objectives Unlike members of political parties,
members of the Communist Party are recruited for in-
doctrination with respect to its objectives a..d methods
and are organized, instructed, and disciplined to carry
into action slavishly the assignments given them by their
hierarchical chieftains. Unlike political parties, the Com-
46
munist Party acknowledges no constitutional or statutory
limitations upon its conduct or upon that of its members.
The Communist Party is relatively small numerically, and
gives scant indication of capacity ever to attain its ends
by lawful political means. The peril inherent in its opera-
tion arises not from its numbers, but from its failure to
acknowledge any limitation as to the nature of its activ-
ities, and its dedication to the proposition that the pres-
ent constitutional Government of the United States ulti-
mately must be brought to ruin by any available means,
including resort to force and violence. Holding that doc-
trine, its role as the agency of a hostile foreign power
renders its existence a clear present and continuing dan-
ger to the security of the United States. It is the means
whereby individuals are seduced into the service of the
world Communist movement, trained to do its bidding,
and directed and controlled in the conspiratorial perform-
ance of their revolutionary services. Therefore, the Com-
munist Party should be outlawed.”
47
APPENDIX B
DECISION OF THE WASHINGTON STATE SUPREME
COURT
[158 Wash. Dec. 101]
[No. 34451. En Banc. April 20, 1961]
Howarp L. Nostranp et al., Respondents, v. HERBERT
S. Lrrtte et al., Appellants.
This case was originally decided by this court January
29, 1959, and was then entitled Nostrand v. Balmer. Our
decision is reported in 53 Wn.(2d) 460, 335 P.(2d) 10,
to which reference is made for a preface to the present
opinion.
Thereafter, the case was appealed to the Supreme Court
of the United States and, after being argued and con-
sidered by that court, a per curiam opinion was filed
May 2, 1960 (two justices dissenting), which is reported
in. 362 U. S. 474, 4 L. Ed.(2d) 892, 80 S. Ct. 840.
The mandate of the Supreme Court received June 13,
1960, directed that our judgment, entered March 20, 1959,
be vacated and the cause remanded for further proceed-
ings not inconsistent with the per curiam opinion.
Accordingly, this court, by order entered Juae 17, 1960.
vacated its judgment of March 20, 1959, and set the
cause for further hearing en banc at its September, 1960,
session for a consideration of the following issues:
1. Whether the plaintiffs have raised, either in the
trial court or in this court, the claim that they should be
afforded such hearing to explain or defend their refusal
to take the oath; and |
4S
2. If such claim is properly before this court, whether
the pertinent statutes of the state of Washington do or
do not afford them such a hearing; and
3. If said statutes do not afford them such a hearing,
whether plaintiffs are thereby denied due process of law
under the constitution of the United States or the consti-
tution of the state of Washington.
For convenience, we shall in this opinion refer to the
plaintiffs Nostrand and Savelle as “the professors,” and
to the defendant state officers as “the regents.”
At this hearing which was held September 21, 1960.
counsel for the parties submitted briefs and presented
oral arguments bearing on these issues.
Before considering the issues above referred to, we
wish to refer to the per curiam opinion of the Supreme
Court, in which the reasons for remanding the case to
this court are stated.
We think that it will be helpful to have in mind the
circumstances under which this case has been remanded
to this court and, therefore, we quote the per curiam
opinion in full (omitting only the reference to Seattle v.
Ross, 54 Wn.(2d) 655, 344 P.(2d) 216 (1959), referred
to below):!
"In our opinion. our recent decision in the case of Seattle v. Ross, supra,
has no hearing on the issues involved in the present case. The reasons
therefor are stated in the dissenting opinion of Mr. Justice Douglas
(concurred in by Mr. Justice Black). Furthermore, the Seattle ordj-
nance defined a criminal offense of which Ross was convicted. The in-
stant case is a purely civil proceeding involving the right of a public
employee to continue his employment without signing the affidavit re-
quired by the statute. The act before us prescribes no presumption
a2
49
“Washington requires every public employee to
subscribe to an oath that he is ‘not a subversive per-
son or a member of the Communist Party or any
subversive organization, foreign or otherwise, which
engages in or advocates, abets, advises, or teaches
the overthrow, destruction or alteration of the con-
stitutional form of the government of the United
States, [or of the State of Washington], or of any
politica! subdivision of either of them, by revolution,
force or violence; ° °.°.’ Refusal so to do ‘on any
grounds shall be cause for immediate termination of
such employee’s employment.
“Appellants brought this declaratory judgment action
claiming the Act to be violative of due process as
well as other provisions of the Federal Constitution.
One of the claims is that no hearing is afforded at
which the employee can explain or defend his refusal
to take the oath. The Supreme Court of Washing-
ton did not pass on this point. The Attorney General
suggests in his brief that prior to any decision thereon
here, ‘the Supreme Court of Washington should be
first given an opportunity to consider and pass upon’
it... . In the light of these circumstances we cannot
say how the Supreme Court of Washington would
construe this statute on the hearing point.
“The declaratorv nature of the case, the fact that
the State’s statute here under attack supplements
previous statutory provisions raising questions con-
cerning the applicability of the latter, together with
the comity that should be afforded the State with
regard to the interpretation of its own laws, bring
us to the conclusion that we must remand the case
for further consideration. Cf. Williams v. State of
than an emplovee who fails to take the oath is a subversive person.
His refusal to answer the required question in afidavit form is ground
for discharge from public employment either for incompetency or in-
subordination or doubtful trust and reliability.
50
Georgia, 1955, 349 U. S. 375, 75 S. Ct. 814, 99 L. Ed.
1161.°? (Italics ours. )
We have italicized certain words in the foregoing quo-
tation because they have been erroneously construed by
some news commentators as implying that this court
did not do its full duty in the premises, and that the
remand was made necessary because we had negligently
failed to decide all the questions before us on the first
hearing. We do not so read the per curiam decision, but,
since the public has been so advised, we wish to take this
opportunity to record the fact that (as will more fully
appear below) we decided in our original opinion every
justiciable issue which was then before us for consideration.
2We have examined the case of Williams v. Georgia, to which our at-
tention has been called in the per curiam opinion of the Supreme
Court. The majority opinion in that case remanded it to the state
supreme court to reconsider the extraordinary motion for new trial
of a defendant convicted of first degree murder. The final paragraph
of the opinion stated the Supreme Court’s reasons for remanding the
case as follows:
“The facts of this case are extraordinary, particularly in view of
the use of yellow and white tickets by a judge of the Fulton County
Superior Court almost a year after the State’s own Supreme Court had
condemned the practice in the Avery case. That life is at stake is of
course another important factor in creating the extraordinary situa-
tion. The difference between capital and non-capital offenses is the
hasis of differentiation in law in diverse ways in which the distinction
hecomes relevant. We think that orderly procedure requires a remand
to the State Supreme Court for reconsideration of the case. Fair re-
gard for the principles which the Georgia courts have enforced in
numerous cases and for the constitutional commands binding on all
courts compels us to reject the assumption that the courts of Georgia
would allow this man to go to his death as the result of a conviction
secured from a jury which the State admits was unconstitutionally im-
paneled. Cf. Mooney v. Holohan, 294 U. S. 103.”
On the remand, the supreme court of Georgia declined to recon-
sider the case. Williams v. State, 211 Ga. 763, 88 S.E.(2d) 376. The
United States Supreme Court then denied a petition for certiorari to
review that decision, 350 U. S. 950, 100 L. Ed. 828, 76 S. Ct. 326. A
petition for rehearing was subsequently denied by the Supreme Court.
350 U. S. 977, 100 L. Ed. 847. 76 S. Ct. 443.
5l
I.
In order to determine whether the constitutional ques-
tion, which is the subject of the Supreme Court's opinion,
was presented to us for decision at the original hearing
in this court, it is necessary to review the record from the
beginning.
The professors instituted this action under our declar-
atory judgment act (RCW 7.24.010 et seq.) by filing their
complaint, in which they alleged that the action was
brought
.for the purpose of testing and determining
the constitutionality of the Act, and the right of the
defendants (the regents ) to establish, enforce, carry
out, and administer the provisions thereof through
the insistence that plaintiffs and other state employees
execute the oath, or otherwise.” pfrownsta 9 of
the complaint. )
As to their status and rights as state emplovees to
challenge the act, the professors alleged, in paragraphs
1 and 2, that:
“They are residents of King County, Washington,
and are presently employed under contract as pro-
fessors by the University of Washington, hereinafter
called the University, an institution of higher learn-
ing owned and operated by the State of Washing-
ton, through the Sitiedeat Board of Regents.
“Through plaintiffs: employment contracts and pur-
suant to the terms of R.C.W. 28.76 and the rules and
regulations of the University, plaintiffs have employ-
ment tenure and certain retirement benefits.”
The allegations wherein they raised federal questions
52
are found in paragraphs 6 and 7, reading as follows:
“Pursuant to the Act, defendants have demanded
that plaintiffs sign and swear to an oath, a copy of
which is attached hereto, marked Exhibit ‘A’; and
unless plaintiffs comply with such demands, their
employment contracts with the University will be
terminated by the defendants.
“The terms, provisions, and requirements of the
Act and the oath are in violation of plaintiffs’ rights,
privileges and immunities under the Constitution of
the United States in the following particulars:
“1. They violate the rights guaranteed under the
First Amendment as made applicable to the States
by the Fourteenth Amendment:
“2. They violate the rights guaranteed under the
Fifth Amendment as made applicable to the States
by the Fourteenth Amendment;
“3. They deprive the plaintiffs of their rights with-
out due process of law and deny them the equal
protection of the laws as guaranteed by the Four-
teenth Amendment; and
“4. They constitute a Bill of Attainder contrarv
to Article I, Section 10.”
The regents, in their answer, denied all the allegations
of the complaint above referred to.
After the trial of the cause, the trial court entered
certain findings of fact and conclusions of law. The find-
ings which are pertinent to our present inquiry are:
“I. The plaintiffs are residents of King County,
Washington, and are presently employed under con-
tract as professors by the University of Washington,
hereinafter called the University, an institution of
53
higher learning owned and operated by the State ot
Washington, through the defendant Board of Re-
gents.
“II. Through the plaintiffs’ employment centracts
and pursuant to statute and the rules and regulations
of the University, plaintiffs have certain tenure rights
and certain retirements benefits.
“V. All defendants are charged with the duty of
establishing, enforcing, carrying out and administer-
ing the provisions of Chapter 377, Laws of 1955.
hereinafter called the Act, enacted by the Legislature
of the State of Washington on March 9, !955, ap-
proved by the Governor on March 21, 1955. The
Act provides that each department head in the State
of Washington must require that each emplovee
under his charge state under oath whether or not
he is a member of the Communist Party or other
subversive organization, or upon failure to execute
such oath, his employment be terminated.
“VI. Pursuant to the Act, defendants have de-
manded that plaintiffs sign and swear to an oath, a
copy of which is attached to the complaint herein.
marked Exhibit A, and have stated that unless the
plaintiffs complied with such demands, their em-
ployment contracts with the University would be
terminated by the defendants.”
The trial court, in its conclusions of law, held that the
act was invalid because it violated certain provisions of
the constitution of the state of Washington, and declared
that the professors were entitled to the declaratory relief
and the injunction prayed for. No federal question was
decided by the trial court.
The final decree granted the following declaratory relief:
54
“IT IS HEREBY ORDERED, ADJUDGED AND
DECREED that Chapter 377, Laws of 1955 violates
the Constitution of the State of Washington, and is
therefore void and of no effect; .. .”
The decree also permanently enjoined the regents from
enforcing the act and from requiring the professors to
execute any oath pursuant thereto.
From this final decree the regents appealed to this
court, and, etter our consideration of the briefs and oral
arguments, we rendered the unanimous decision of Jan-
uarv 29, 1959, referred to above.
In this posture of the case, we turn to a consideration
of the first of the three questions set forth above, to wit,
whether the professors raised the “hearing” issue either
in the trial court or in this court.
We can find nothing in the complaint or elsewhere in
the record in the trial court indicating that this issue was
ever called to the court's attention. The portions of the
record which we have just quoted make it plain that the
issue was not raised or considered. The trial court's decree
granting declaratory relief to the professors is specifically
limited to the basis that the act violated certain pro-
visions of the state constitution. Neither the decree nor
the conclusions of law on which it was based mention
any federal question whatsoever. The only reference to
the United States constitution anywhere in the trial court
record is found in the allegations of paragraph 7 of the
complaint, quoted above. These allegations raised fou:
points, wherein it was claimed that their rights, privileges
and immunities under the United States constitution were
55
impaired by the act and the oath. However. these were
general in scepe and nothing was said about the lack
of a hearing being one of them.
Parenthetically, there is neither allegation nor finding
that the professors have ever refused to take the oath or
that they intend to do so in the future. In the absence
of such a showing it would seem premature, even in a
declaratory judgment action, for a court to rule on a hypo-
thetical situation. At least until the professors show that
they have refused to sign the oath, or intend to do so,
they are not entitled to de:nand an administrative hearing
on any ground.
Assuming that when the case first came to this court
the professors were in a position to raise the hearing
issue, the question remains: What did they do to alert
this court at that time as to their contention (now made
in the Supreme Court) that the act was violative of the
United States constitution upon the ground that no hearing
was afforded at which the emplovee could explain or
defend his refusal to take the oath.
In their brief on the last hearing before this court,
counsel for the professors frankly stated:
“As to presentation of this basis of unconstitution-
ality in the appeal to this Court, we acknowledge
that in respondents’ brief we did not present this
with the precision and definiteness that in retrospect
we would have liked. But this matter was sufficiently
presented in our brief to alert the Court to the prob-
6
lem of a ps due process as —— to the Act.
In our brief we cited and discussed Adler v. Board
of Education, 342 U. S. 485, 96 L. ed. 517, 72 S. Ct.
380, 27 ALR (2d) 472 (1952) (Resp. Br. 23, 24,
27-28, 31, 35, 36, 48, 53, 55); Slochower v. Board
of Education, 350 U. S. 551, 76 S. Ct. 637, 100 L. ed.
692 (1955) (Resp. Br. 35-36), and Rudder v. United
States, (C.A. D.C. 1955) 226 F.(2d) 51 (Resp. Br.
21-28)...”
It seems to us that, in a case which involved many
constitutional issues, both state and federal, the citation
of these three cases in connection with other points can-
not reasonably be held to be adequate notice that the
hearing issue was being relied upon.
In this connection, the professors further assert that,
because at that time the validity of another section of
the act was also challenged (Section 3, relating to the
United States Attorney General's list of subversive or-
ganizations), we should have, sua sponte, applied to sec-
tion 4 of the act the rule adopted by the Supreme Court
in Joint Anti-Fascist Refugee Committee v. McGrath, 341
U. S. 123, 95 L. Ed. 817, 71 S Ct. 624, relating to the
indispensability of hearings.
We do not think that we were called upon, after hav-
ing held that section 3 was invalid, to search the record
for other possible applications of the McGrath case to
situations not called to our attention by counsel. It is
the duty of counsel to be specific in presenting their con-
tentions to an appellate court. In the present case, this
was not done with regard to the hearing issue until
after we had decided the case.
57
The professors then filed a petition for hearing in
which, for the first time (as far as we were aware),
they raised the question of the invalidity of section 4
of the act on the ground that there was no provision
for a hearing at which an employee could explain or
defend his refusal to sign the oath (if he had refused
to do so).
This court has for many years adhered to its rule that
it will not consider questions presented to it for the first
time in a petition for rehearing. State v. Hazzard, 76
Wash. 586, 137 Pac. 143 (1913), and cases cited therein.
Were it not for the fact that this case has been re-
manded to this court by the Supreme Court with the re-
quest that we interpret the act with respect to the hear-
ing issue, we would dismiss the professors’ claim as not
being timely raised. That would, of course, terminate
our consideration of the case.
Nevertheless, as a matter of comity, we desire to com-
ply with the Supreme Court's request that we consider
the claim that the act does not provide for a hearing
‘at which the employee can explain or defend his refusal
to take the oath. We, of course, limit our consideration
of the problem to the facts before us. Even in a declara-
tory judgment action, there must be a justiciable contro-
versy. Washington Beauty College v. Huse, 195 Wash.
160, 80 P.(2d) 403 (1938).
The Supreme Court has also held that the requirements
58
for a justiciable case or controversy are no less strict in
a declaratory judgment proceeding than in any other type
of litigation.
Alabama State Federation of Labor v. McAdory, 325
U. S. 450, 89 L. Ed. 1725, 65 S. Ct. 1384.
Congress of Industrial Organizations v. McAdory, 325
U. S. 472, 89 L. Ed. 1741, 65 S. Ct. 1395.
In these two cases the Supreme Court had granted
writs of certiorari to review the decisions of the Supreme
Court of Alabama in declaratory judgment proceedings in-
stituted to obtain adjudications as to the constitutionality
of the Bradford Act (which regulated the conduct of
labor unions “functioning” within the state).
The state supreme court had upheld the validity of
certain portions of the act (and had held othe> vortions
unconstitutional). On reviewing the record ir case,
the Supreme Court dismissed the writ of ce ai be-
cause there was no concrete set of facts prese. a to the
court to indicate which statutory provisions were to be
applied. In dismissing the writ of certiorari in the case
first cited above, the Supreme Court said, in a unanimous
opinion by Chief Justice Stone:
“,..In advance of an authoritative construction
of a state statute, which the state court alone can
make, this Court cannot know whether the state
court, when called on to apply the statute to a
defined case or controversy, may not construe the
statute so as to avoid the constitutional question.
For us to decide the constitutional question by antici-
pating such an authoritative construction of the state
59
statute would be either to decide the question un-
necessarily or rest our decision on the unstable foun-
dation of our own construction of the state statute
which the state court would not be bound to follow.
— Motor Co. v. McLaughlin, supra, 105; see
also Vandenbark v. Owens-Illinois Co., 311 U. §
538, 543; Huddleston v. Dwyer, 322 U. §. 232. Such
is not the function of the declaratory judgment.
“The extent to which the declaratory judgment pro-
cedure may be used in the federal courts to control
state action lies in the sound discretion of the Court.
See Great Lakes Co. v. Huffman, supra. It would
be an abuse of discretion for this Court to make a
pronouncement on the constitutionality of a state
statute before it plainly appeared that the necessity
for it had arisen, or when the Court is left in un-
certainty, which it cannot authoritatively resolve, as
to the meaning of the statute when applied to anv
particular state of facts. In any event the parties
are free to litigate in the state courts the validity
of the statute when actually applied to any definite
state of facts, with the right of appellate review in
this Court. In the exercise of this Court's discretionary
power to grant or withhold the declaratory judgment
remedy it is of controlling significance that it is in
the public interest to avoid the needless determina-
tion of constitutional questions and the needless ob-
struction to the domestic policy of the states by fore-
stalling state action in construing and applying its
own statutes. See Great Lakes Co. v. Huffman, supra.
300, et seq.”
The reasoning of the Supreme Court in its opinion dis-
missing the writ in the second case above cited is seeming- —
ly applicable by analogy to the situation presented in the
case at bar. The court said:
“Further the contention that § 16 conflicts with
60
the National Labor Relations Act, cf. Hill v. Florida,
post, p. 538, was not passed on by the Circuit Court,
was not raised by assignment of error in the Ala-
bama Supreme Court, and that court did not pass
on that question either in its opinion in this case
or in its opinion in the Alabama State Federation of
Labor case which it adopted as controlling. The
Alabama Supreme Court will not consider errors
which have not been assigned, Rowland & Co. vt.
Plummer, 530 Ala. 182, 197, Pettibone-Taylor Co. v.
Farmers Bank, 156 Ala. 666, 46 So. 751; Malaney v.
Ladura Mines Co., 191 Ala. 655, 65 So. 666; Nichols
v. Hardegree, 202 Ala. 132, 79 S. 598; Halle v. Brooks,
209 Ala. 486, 96 So. 341, or which have not been
specifically and precisely raised in the assignments
of error, Kinnon v. Louisville & Nashville R. Co..
187 Ala. 480, 65 So. 397; Carney v. Kiser Co., 200 Ala.
527, 76 So. 853; Hall v. Pearce, 209 Ala. 397, 399,
96 So. 608; Jackson Lumber Co. v. Butler, 244 Ala.
348, 13 So. 2d 294, 298. Since the State Supreme
Court did not pass on the question now oat and
since it does not appear to have been properly
presented to that court for decision, we are without
jurisdiction to consider it in the first instance here.
Caperton v. Bowyer, 14 Wall. 216, 236; Hulbert v.
Chicago, 202 U. S. 275, 280, 281: Dorrance v. Penn-
sylvania, 287 U. S. 660; Chandler v. Manifold, 290
U. S. 665; see also Flournoy v. Wiener, 321 U. S.
253; Charleston Assn. v. Alderson, 324 U. S. 182,
185, and cases cited.”
The material facts shown by the record in the present
case as to this hearing issue are that these two professors
(who have never refused to take the oath) are presently
employed under contract as full professors by the Uni-
versity of Washington, which is operated by the regents.
Through their employment contracts, and pursuant to
‘61
statute and the rules and regulations of the university,
they have certain tenure rights.’ The regents have de-
manded that the professors sign and swear to an oath
(a copy of which is attached to their complaint), and
have further stated that, unless the professors complied
with such demand, their employment contracts with the
“university will be terminated by the regents.
This court has very recently held, in Yantsin v. Aber-
deen, 54 Wn.(2d) 787, 345 P.(2d) 178 (1959), that, in
the absence of civil service or other tenure rights, public
employees may be discharged by their employers without
any reason being assigned therefor. There is no vested
right to public employment in the state of Washington
unless the employee has some tenure rights provided by
law. Since the power to discharge is absolute except for
such tenure rights, the discharged public employee is
not entitled to a hearing regarding the reason for his
discharge.
As pointed out in our original decision, the definition of
subversive person in the 1951 act was amended in 1953
to provide that a person must have knowledge that an or-
ganization is a subversive organization before he can be
deemed to be a subversive person. Hence, the element
of scienter is essential to prove perjury in taking the oath.
This interpretation of the act and the oath is now the law
of the case. Therefore, the decision in Wieman v. Upde-
graff, 344 U. S. 183, 97 L. ed. 216, 73 S. Ct. 215, has no
application.
*For applicable rules and regulations regarding tenure rights, see ap-
pendix to this opinion. These are discussed later in this opinion.
62
It should be further noted that, under the Washington
act, there is no inquiry as to past acts or past associations
of the employee. The affidavit speaks in the present tense
only as of the date the employee takes the oath. If he is
now a member of the Communist party or other subver-
sive organization, he may resign today and execute the
affidavit tomorrow without incurring any penalty or risk-
ing a charge of perjury. Apparently, the New Jersey edu-
cational oath statute likewise applies only to the present
status of the teacher.‘
‘The supreme court of New Jersey recently rendered a unanimous deci-
sion in the case of Lowenstein v. Newark Board of Education, 33
N. J. 277. 163 A.(2d) 156, which concerned one of the same teachers
whose dismissal was set aside in Laba v. Vewark Board of Fducation,
23 N. J. 364, 129 A.42d) 273. (We ciied the Laba case in our orig-
inal opinion as holding that New Jersey took judicial notice that the
Communist party was part of a world.conspiracy whose prime objec-
tive was the overthrow of the United States government. )
In the Lowenstein case, Justice Hall. speaking for the court. referred
to the New Jersey educational oath statute as requiring present, not
past. allegiance. On this point. the policies of Washington and New
‘ersey appear to he the same. The opinion stated. in part. as follows:
“Here the inquiry was to aid in determining whether there was
sufficient basis to charge that appellant was unfit to teach because
subject to the ideologies and disciplines of Communism. Subjection
connotes such belief in the overthrow of our government by force or
other unlawful means and in the substitution of a totalitarian state
with destruction of all of our heritage of individual freedoms as to
he subservient to commands to act in any way directed to carry out
these nefarious purposes. It is essentially a state cf mind. admittedly
dificult to determine extrinsically hut generally evidenced sufficiently
by knowing membership and participation in true Communist organ-
izations and activities designed to further the basic aim of such violent
overthrow of our government.
“The focal point of the inquiry in the instant case was such subjec-
tion now rather than in the past. It is not suggested by the Board that
any past conduct of appellant would be of a nature that in itself
would justify dismissal even if there were no present subjection, so
we are not called upon to determine under what circumstances. if any.
the right to discipline would exist in such a situation and what we
are about to say further is directed particularly to the precise situa-
tion before us. In fact. the Board’s brief specifically says that the
‘fitness inquiry . . . involved not only the question of present party
63
Instead of being called in by his superior and being
asked orally if he belongs to a subversive organization,
the legislature has adopted the policy of asking each pub-
lic employee to state in writing, i.e. by affidavit, whether
he is at that time a member of such an organization. If
he signs the affidavit, that is the end of the matter. If he
declines to sign, the employee is subject to immediate dis-
charge. If he has no tenure rights, he has no vested right
to public employment, and the act affords him due proc-
ess. Nelson v. County of Los Angeles, 362 U.S. 1, 4 L.
Ed. (2d) 494, 80 S. Ct. 527. On the other hand, if he has
membership but also the question of present subservience to the
Party’s ‘ideologies and disciplines’ ‘emphasis supplied) and at oral
argument the board’s counsel expressly agreed with the proposition
that no right to dismiss exists merely because a teacher was a member
of the Communist Party in the past when it is clear that he is not
presently. Such a view follows state policy as expressed in the educa-
tional oath statute (N.J.S.A. 18:13-9.1 and 9.2) where the criterion
is present allegiance. . . .” (Last italies ours.)
It should also be noted that the court in that case approved its
1951 decision in Thorp v. Board of Trustees of Schools for Industrial
Education. 6 N. J. 498. 79 A.(2d) 462 (which we cited in our orig:
inal decision). stating as follows:
“Passing over the matter of any effect to be given to the fact
that the refusal did not extend to all prior event questions. it seems
clear that mere alleged invasion of privacy and personal dignity can
constitute no bar to an inquiry of this type. ifthe questions posed are
otherwise proper and appropriate. The subject is much too vital today
to depend upon such personal views, however sincerely held. The
matter is not simply one of academic freedom of thoucht and expres-
sion. As was so well said by Justice Heher in Thor, v. Board of
Trustees of Schools for Industrial Education, 6 N. J. 498 (1951):
‘The maintenance of the purity of the educational process against
corruption by subversive influences is of the highest concern to society.
. Loyalty to government and its free democratic institution: is a
first requisite for the exercise of the teaching function. Freedom from
helief in force or violence as a justifiable weapon for the destruction
of government is of the very essence of a teacher's qualifications’ (at
p. 513). See also Adler v. Board of Education. 342 U.S. 485, 493.
06 L. Ed. 517. 524. 72 S. Ct. 380 (1951). Any concept of individual
privilege against intrusion on privacy and conscience must give wav
in these times and these situations to the greater public interest.”
64
tenure rights, he must be accorded such a hearing as his
contract of employment calls for.
The Nelson case involved the dismissal of two county
employees because of their refusal to answer questions
put to them by a congressional subcommittee concerning
subversion. They both had been previously ordered by
the county board of supervisors to answer such questions.
The California district court of appeal had upheld the dis-
charges and the United States Supreme Court granted
certiorari. It should be noted that one employee (Nelson)
had a civil service status, and had been given a hearing
before the civil service commission; the other (Globe )
was a temporary employee and was not entitled to a
hearing under the civil service rules.
The decision of the Supreme Court affirmed the dis-
charge of Nelson by an equally divided court. Hence,
his case was not discussed in the opinion. As to Globe's
discharge, the majority upheld his dismissa] for insub-
ordination, three justices dissenting.
Since the majority opinion appears to have a pertinent
bearing on the problem presented for decision in this
case (especially because of the professors’ reliance on the
Slochower case discussed therein), we quote the follow-
ing portion of that opinion:
“We, therefore, reach Globe’s contention that his
summary discharge was nevertheless arbitrary and
unreasonable. In this regard he places his reliance on
Slochower v. Board of Education, 350 U.S. 551
(1956). However, the New York statute under which
Slochower was discharged specifically operated ‘to
65
discharge every city employee who invokes the Fifth
Amendment. In practical effect the questions asked
are taken as confessed and made the basis of the dis-
charge. Id., at 558. This ‘built-in’ inference of guilt,
derived solely from a Fifth Amendment claim, we
held to be arbitrary and unreasonable. But the test
here, rather than being the invocation of anv consti-
tutional privilege, is the failure of the employee to
answer. California has not predicated discharge on
any ‘built-in’ inference of guilt in its statute, but
solely on emplovee insubordination for failure to give
information which we have held that the State has
a legitimate interest in securing. See Garner v. Board
of Public Works of Los Angeles, 341 U.S. 716 (1951);
Adler v. Board of Education, 342 U. S. 485 (1952).
Morecver it must be remembered that here—unlike
Slochower—the Board had _ specifically ordered _ its
employees to appear and answer.
“We conclude that the case is controlled by Beilan
v. Board of Education of Philadelphia, 357 U.S. 399
(1958), and Lerner v. Casey, 357 U. S. 468 (1958).
It is not determinative that the interrogation here
was by a federal body rather than a state one,
as it was in those cases. Globe had been or-
dered by his employer as well as by California's
law to appear and answer questions before the
federal subcommittee. These mandates made no
reference to Fifth Amendment privileges. If Globe
had simply refused, without more, to answer the Sub-
committee’s questions, we think that under the prin-
ciples of Beilan and Lerner California could certainly
have discharged him. The fact that he chose to place
his refusal on a Fifth Amendment claim puts the
matter in no different posture, for as in Lerner, supra,
at 477, California did not employ that claim as the
basis for drawing an inference of guilt. Nor do we
think that this discharge is vitiated bv any deterrent
effect that California’s law might have had on Globe's
66
exercise of his federal claim of privilege. The State
may nevertheless legitimately predicate discharge on
refusal to give information touching on the field of
security. See Garner and Adler, supra. Likewise, we
cannot say as a matter of due process that the State's
choice of securing such information by means of tes-
timony before a federal body can be denied. Finally,
we do not believe that California’s grounds for dis-
charge constituted an arbitrary classification. See
Lerner, id., at 478. We conclude that the order of
the County Board was not invalid under the Due
Process Clause of the Fourteenth Amendment.”
The Supreme Court also declined to pass upon Globe's
contention as to the privileges and immunities clause of
the fourteenth amendment, “since it was neither raised in
nor considered by the California courts.” It seems to us that
the quoted phrase is applicable to the professors’ conten-
tions regarding the hearing issue in the case at bar.
Before discussing the professors’ tenure rights, we de-
sire to refer to two companion cases decided by the
Supreme Court on December 12, 1960. They both in-
volved the validity of an Arkansas statute requiring all
public school teachers and professors in institutions of
higher learning supported by public funds, as a condition
precedent to their employment, to file an affidavit “as to
the names and addresses of all incorporated or unincor-
porated associations and organizations” to which they are
presently paying dues or are making contributions, or to
which they have paid dues or have made contributions
“within the past five years.”
One of these cases, Shelton v. Tucker, ——— U. §. ——--.
5 L. Ed. (2d) , 81 S. Ct. 247, was appealed from the
67
decision of a three-judge United States district court, 174
Fed. Supp. 351. The other case, Carr v. Young, ——— Ark.
———, 331 S.W.(2d) 701, was an appeal from the deci-
sion of the supreme court of Arkansas. The two lower
courts upheld the statute and the Supreme Court reversed
the decision in each case, four justices dissenting.
The majority opinion held that the Arkansas statute was
invalid because it was too broad.
“The question to be decided here is not whether
the State of Arkansas can ask certain of its teachers
about all their organizational relationships. It is not
whether the State can ask all of its teachers about
certain of their associational ties. It is not whether
teachers can be asked how many organizations they
belong to, or how much time they spend in organiza-
tional activity. The question is whether the State
can ask every one of its teachers to disclose every
single organization with which he has been associ-
ated over a five-vear period. The scope of the in-
quiry required by Act 10 is completely unlimited.
The statute requires a teacher to reveal the church to
which he belongs, or to which he has given financial
support. It requires him to disclose his political party,
and every political organization to which he may
have contributed over a five-vear period. It requires
him to list, without number, every conceivable kind
of associational tie—social, professional, political, avo-
cational, or religious. Manv such relationships could
have no possible bearing upon the teacher's occupa-
tional competence or fitness.
«“
“The unlimited and indiscriminate sweep of the
statute now before us brings it within the ban of our
prior cases. The statute's comprehensive interference
with associational freedom goes far beyond what
68
might be justified in the exercise of the State's a gol
oO
mate inquiry into the fitness and competence of its
teachers. The judgments in both cases must be re-
versed.”
Two separate opinions were written, in both of which
all four dissenting justices joined. Mr. Justice Harlan
stated in his dissent:
‘
‘. . . Where official action is claimed to invade
these rights [free speech and association], the con-
trolling inquiry is whether such action is justifiable
on the basis of a superior governmental interest to
which such individual rights must yield. When the
action complained of pertains to the realm of in-
vestigation, our inquiry has a double aspect: first,
whether the investigation relates to a legitimate gov-
ernmental purpose; second, whether, judged in the
light of that purpose, the questioned action has sub-
stantial relevance thereto. See Barenblatt v. United
States, 360 U.S. 109; Uphaus v. Wyman, 360 U. S. 72.
“In the two cases at hand, I think both factors are
satisfied. It is surely indisputable that a State has the
right to choose its teachers on the basis of fitness.
And I think it equally clear, as the Court appears to
recognize, that information about a teacher's asso-
ciations may be useful to school authorities in deter-
mining the moral, professional, and social qualifica-
tions of the teacher, as well as in determining the
type of service for which he will be best suited in
the educational system. See Adler v. Board of Edu-
cation, 342 U. S. 485; Beilan v. Board of Higher
Education, 357 U. S. 399; see also Slochower v. Board
of Education, 350 U. S. 551. Furthermore, I take the
Court to acknowledge that, agreeably to our previous
decisions, the State may enquire into associations to
the extent that the resulting information may be in
aid of that legitimate purpose. These cases therefore
69
do not present a situation such as we had in
N.A.A.C.P. v. Alabama, 357 U. S. 449, and Bates tv.
Little Rock, 361 U. S. 516, where the required dis-
closure bears no substantial relevance to a legitimate
state interest.
“Despite these consideratiun.s this statute is stricken
down hecause, in the Court's view, it is too broad,
because it asks more than may be necessary to eflec-
tuate the State’s legitimate interest. Such a statute.
it is said, cannot justity the inhibition on freedom
of association which so blanket an inquiry may en
tail. Cf. N.A.A.C.P. v. Alabama, supra; Bates v. Little
Rock, supra.”
We note parenthetically that the Arkansas statute does
not provide for a hearirg at which the teacher or the pro
fessor may explain or defend his refusai to file the re-
quired affidavit, nor is there any reference in any of the
opinions as to any constitutional necessity therefor
The Washington statute involved here is tailored to
the legislative determination as to what is necessary in
the premises to protect the state and its educational insti-
tutions from activities of subversive persons who are being
financially maintained by the state and its municipalities
Unlike the Arkansas statute, our act is not too broad in its
scope.
The Supreme Court. in remanding this case, has in
effect asked us to construe the subversive activities act of
1951 (as amended in 1953 and in 1955) with reference
to the hearing issue.
Since the professors in the present case (as the tra!
court found) are emploved by the regents under contract
70
as full professors and have certain tenure rights, we must
construe the subversive activities act in the light of the
tenure rights which they possess under the rules and
regulations adopted by the regents. The pertinent por-
tions of these rules and regulations are set forth in the
appendix to this opinion.
Briefly stated, the tenure rights of a professor include
the right to be given written notice of the alleged grounds
for his discharge from his position, a “trial” before a stand-
ing committee composed of eleven members of the faculty
known as the tenure committee, the right to be repre-
sented by any person of his choice, the right to be present
during the taking of testinony, to call witnesses, and to
cross-examine opposing ‘witnesses. The procedure pre-
scribed in the rules and regulations for the conducting of
the hearing is substantially the same as an accused per-
son ordinarily would receive in a court of law, except a
jury trial.
The committee, at the conclusion of the hearing, makes
written findings and recommendations, which, t: gether
with a transcript of the testimony, are filed with the presi-
dent of the university (who also attends the hearing but
not the deliberations of the committee ).
A professor may be removed from his position only “for
cause, which is defined as one or more of the following
reasons: (1) Incompetence, (2) neglect of duty, (3)
physical or mental incapacity, (4) dishonesty or immor-
ality, (5) conviction of a felony.
The president, after reviewing the findings and recom-
71
mendations of the tenure committee, makes his decision
as to whether or not a cause for removal has been estal-
lished in a particular case and reports to the regents.
We are of the opinion that the provision in the subver-
sive activities act to the effect that refusal to take the oath
“on any grounds” shall be cause for “immediate termina-
tion of employment,” should not be interpreted in the
case before us as meaning that a full professor having ten-
ure rights under his contract of employment is deprived
of the right to a hearing as provided in the rules and regu-
lations of the university. In other words, if the professors
should refuse to sign the affidavit (which they have not
vet refused to do), they, in our opinion, wil! be entitled
to the hearing before the tenure committee and to the
other procedures velating to termination of employment
prescribed in the university's rules and regulations, set
forth in the appendix to this opinion.
Counsel for both parties, in their respective briefs (filed
subsequent to the last argument in this court), referred
to the hearing provided for in § 15 of the 1951 act (RCW
9.81.090). In our opinion, this hearing provision does not
applv to persons refusing to sign the oath, because, under
Laws of 1957, chapter 377, § 1 (which amends § 12 of
the 195] act), refusal by a public emplovee or applicant
for public employment to sign the oath on any grounds
shall be cause for immediate termination of such emplov-
ment or refusal to accept an application therefor.
Declining to take the oath does not stamp a public
emplovee as a subversive person. There is no stain of dis-
72
loyalty attached thereto. If he does not wish to sign the
oath, he may seek private employment. On the other
hand, if he takes the oath and subsequently his superior
has bona fide grounds for investigating his qualifications
(including a charge that he is a subversive person), then
such employee is entitled to a hearing as provided in
§ 15 of the 1951 act. Such a hearing was afforded in the
Beilan, Lerner, Nelson and Lowenstein cases, supra.
We conclude that the professors are not entitled to a
hearing under § 15 of the 1951 act, but, as stated above,
are entitled to a hearing before the tenure committee,
because the rules and regulations adopted by the regents
(which form a part of their contracts of employment)
so provide.
The regents have urged, in their reply brief, that the
professors are entitled to a hearing under the model
state administrative code (Laws of 1959, chapter 234,
RCW 34.04.010 et seq.), citing Wong Yang Sung v. Mc-
Grath, 339 U.S. 33, 94 L. Ed. 616, 70 S. Ct. 445. How-
ever, we are of the opinion that this 1959 statute was
not intended to supersede established procedure adopted
by the regents pursuant to RCW 28.77.120 and 28.77.1390.
There is nothing in the administrative code which indi-
cates to us a legislative intent to amend or repeal the
statutes relating to the operation of the University of
Washington which have been in effect for fifty years.
Pursuant to the mandate of the Supreme Court received
by this court June 13, 1960, we construe the 1951 sub-
versive activities act of this state (as amended), with
73
reference to the question of whether it affords a hearing
to the professors in this case at which they may explain
or defend their refusal to take the oath required by the
act, as follows:
Assuming (a) that the professors timely raised this
hearing issue in the Washington courts, and (b) that
they have refused to take the oath or have proved that
they will refuse to do so, we are of the opinion that, before
they can be discharged for such refusal, the professors,
under their contract of employment, are entitled to a
hearing before the tenure committee conducted in the
manner prescribed in the applicable rules and regulations
adopted by the regents (see appendix) for the termina-
tion of the tenure of full professors emploved by the
University of Washington.
- As to all other issues involved in this case, we adhere
to the views expressed in our original opinion of January
29, 1959, and reported in 53 Wn.(2d) 460, 335 P.( 2d)
10,°*¢
Pursuant to the mandate of the Supreme Court, we
direct that the clerk of this court forthwith transmit to
that court a certified copy of this opinion.
5Mher decisions of the Supreme Court which have been rendered since
our original decision of January 29, 1959, and have a hearing on the
questions decided therein are: Barenblatt v. United States, 360 U.S.
109, 3 L. Ed.i2d) 1115, 79'S. Ct. 1081: Uphaus v. Wyman, 360 U.S.
72. 3 L. Ed.(2d) 1090. 79'S. Ct. 1040; Uphaus v. Wyman, U.S
. 5 L. Fd.i2d) . 81S. Ct. 153: Wilkinson v. United States
U. S. ; L. Fd. . 81S. Ct. 567; Braden +. United
States. U_S. ‘ L. Fad. . 81S. Ce. 584.
®The dissenting opinion (see below). as we read it. implies that the
rights of all state employees. in addition to those of the two profes-
v4
We Concur:
ROSELLINI, J.
SI ircpcck: be teten mec ass
WEaveER, J. FosTER, J.
HUvnTER, J.
sors who instituted this action, should be considered in this opinion.
Those questions are not before us. In the first place. the professors
alleged, and the trial court found, that they had employment con-
tracts and that, under the rules and regulatio
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