Motion to Dismiss or Affirm — Hosack v. Smiley

PHEME COURT.U.& = = |

<4

APR .- -1938

SOHN F. DAVIS, CLERK

(IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1967

ELIZABETH LEWIS HOSACK, et al.

3 ‘e Appellants.

' VS.

JOSEPH R. SMILEY, et al.

. Appellees.

On APPEAL FROM THE UNITED STATES DISTRICT —

FOR THE DtstRICT ¢ OF COLORADO ©

e

MOTION TO AFFIRM OR DISMISS__..

Duke W. Dunpar

Attorney General

State of Colorado

JOHN P. HOLLOWAY

Assistant Attorney General

. Resident Counsel. for the

c University of Colorado

Regent Hall, Box 13 \

University of. Colorado

Boulder. Colorado 80302

- Attorneys for. Appellees.

E. L. Menpenaatt, Inc., 926 Cherry Street. Kansas Citv. Mo. 64196. HArrison.1-8080 ~

eal

LIE OF Aa eee See ee eae eee ee

SR Rr Ne ag te

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INDEX.

_ Argument—_ _ “* |

1. The issues of substantive due process and freedom

of speech presented in questions 1 and 3, re-

spectively, are ‘not so ‘substantial. - aS: ‘to require

- further argument ..........: <ciaiishiaciaageliiiced aan sdiliaubabdicie

_ 2. Appellants have no standing to raise the issue of

‘ procedural due process as presented in question 2 .

3. The factual basis of question 4 is inadequate to

support further argument ctibiesdiedsiamnaiauabiebiunns

4. The factual basis of question 5 is inadequate to

7 support further” argument

"2

Conclusion .......... Bers ens PARE NE RY Ie

TABLE OF CASES

Alabama State Fedération of Labor v. Mosery, 325

US. 450 (1945) ou.

; American Communication Ass’n v. Douds, 339 US. 382

(1950) ssceshaee scion picsnsassioenbaciiiasindiiesiaaddadanaaeagaga nda /eadanie

Arizona v. California, 283 U.S. 423 (1931) siainias SEATEIE

Ashwander v. Tennessee Valley Authority, 297 US. 288°

CED) ove. saieciops< tnt ascnatrtnenciieainapeanaallaenste

Bachtel v. Wilson, 204 US. Be CIPD chtnicieeneitiannctan

Bond v. Floyd, 385. U.S. 116 (1966) | :

Burnside v. Board of Regents, 100 Colo. 33, 64 P.2d 1271

CREE) saicniscinyiicnhcssesniisestteesalebebadiaabaieacas

Buttny, et al. v. Smiley, et al., Civil No. C006 (D.C.

*" IS. IA, DG ID eaccicnansesncniaredacinnenicedeetoniaicivean

Crescent Cotton Oil’ Co. v. Mississippi, 257 U.S. 129

(70at) ...... sinlnctaanicinmaas

Gallagher v. Smiley, 270. ‘F.Supp. 86 (D. _ il Colo. 1967)...

- Giles v. Harris, 189 U.S. 475° (1903) panies eocconneensionenn put

"Re Sie INDEX a

In re Mackey’s Estate,’46 Colo. 79, 102 P. 1075 (1909) -

Knight v. Board of Regents, 269-F.Supp. 339 (1967),

Aff’d (per viaiiuues 88 . S.Ct. 816, 19 L.Ed.2d 812 -

I oe Sica ee

Landwehr v. Regents of Eadiarsiay of Colorado, 156

Colo. 1, 396 P.2d 451 (1964) .

New York v. Illinois, 274 US. 488 (1927) . ae aiietliaiieahincis

People ex rel: Jerome v. Board-of Regents, 24 Colo. 175,

se RE I Dincic ensnsidanesenmnennpnpnenctatennatinanninnne

Sigma Chi Fraternity v. Board of Regents, 288 F.Supp.

515 (D.C. Colo. 1966) Sa Ee icant

Smith v. Cahoon, 283 U.S. 553 (1987): ..... a.

Texas v. Interstate Commerce Comm’ n, 258 US. 188

(1922)

Watson v. Maryland, 218 US. 173 (1910)

} CONSTITUTIONAL PROVISIONS »

Colorado Constitution, Article IX, §§ 12-14 :

Fourteenth Amendment, Constitution of the United

‘States = tie © ae

Q

SUPREME. COURT OF THE UNITED STATES

OCTOBER TERM, 1967

_ ~

No. 1196

- ELIZABETH LEWIS HOSACK, et al.,

a ' Appellants,

ee ee vs.

JOSEPH R. SMILEY, et al,

Appellees.

ie

On APPEAL FROM THE UNITED States DIstTRICT Court

FOR THE DISTRICT OF COLORADO

MOTION TO AFFIRM OR DISMISS

Appellees in the above-entitled action move to dismiss

- or affirm on the grounds that the appeal does not present

_ questions so substantial as to require further argument and

that appellants have no standing to raise certain of the

issues they present on —— |

a

. * .

‘sistas aBite nis ealbaiaiinienella

1. The issues of silaidatbi: lies process and freedom

of speech presented in questions 1 and 3, respectively, are .

not so substantial as to require further argument.

Identical issues were raised and disposed of in a man-

ner directly contrary to appellants’. position here in Knight °

v. Board of Regents, 269 F.Supp. 339 (1967),. Aff’d (per =

_eantenay 88 S.Ct. 816, i9 L.Ed. 2d 812 (1968). |

\

In addition the Court has voiced approval of sieeble

oaths of minimal loyalty to the government on several

other occasions. American Communication Ass’n v. Douds,

339 US. 382, 415 - (1950) ; Bond v. slain 385 US. 116, 132

(1966). ; .2

2. ‘Appellants have no. standing to raise the issue of |

procedural due process as presented in question 2.

The record below shows, on its face, that none of the

appellants have, in fact, been discharged from employment

by the University of Colorado for refusal to take the loyalty

oath or for noncompliance with its terms. Neither have

. any of the appellants soca a hearing or been denied &

hearing. . Bees.

The question of .a hearing remains hypothetical ‘end

_ contingent. It has long been the Court’s practice. “not to

decide -abstract; hypothetical or contingent questions.”

Alabama State Federation of Labor v. McAdory, 325 US.

450, 461.(1945). See also, Giles v. Harris, 189 U.S. 475; 486

(1903); Texas v. Interstate Commerce Comm’n, 258 US.

158 (1922); Ashwander v. Tennessee Valley Authority, 297

U.S. 288, 324 (1936); New York v. Illinois, 274 U.S. 488

(1927); Arizona v. California, 283 U.S. 423 (1931). wo

3. The factual basis of viii 4*is inndoquat to

omppert further argument.

| Appellants contend that.if they were etiaan to ‘ee

the oath in question, they would be denied equal protection

of the laws, as guaranteed by the Fourteenth Amendment, :

_ by virtue of the fact that employees of other Colorado i in-:

stitutions are not required to take similar oaths. ;

As appears in the record below, ‘the University of

~ Colorado is governed by the Board of: Regents of the Uni-

versity of Colorado, a body which is constitutionally vested

with very broad powers. Coro. Consr., Art. “& §§ 12-14,

which provides as follows:

Section 12: Regents of university .—There shall. be

‘ elected by the qualified electors of the state, at the first

_ general election under this constitution, six regents of

the university, who shall immediately after their elec-

tion be so classified by lot, that two shall hold their —

office” for the term of two years, two for four years

. and two for six years; and every two years after the

first election there shall be elected two regents .of the

university, whose term of office shall be six years.

The regents thus elected and their successors,’ shall

constitute 4 body corporate to be known by the name

and style of “The of the University of Colo- .

rado.”

’ Section 13. President of university.-The. regents of

the university shall, at their first meeting, or as soon

' thereafter as practicable, elect a president of the uni-

versity, who shall-hold his office until removed by the

board of regents for cause; he shall be ex officio, a

_ member of the board, with the privilege of speaking,

’ -but not voting, except in cases of a tie; he shall pre-

. side at the meetings of the board, and be the principal

executive officer of the university, and a member of

the’ faculty thereof.

.

9

— an ‘

> ~ Poe ke, ee wee te | -

ss .

4 .

Section 14: Control of university —The board of re-

_ gents shall have the general supervision of the univer-

sity, and the exclusive control” and direction of all

- funds of, and appropriations to, the university.

These powers have been more ‘specifically. defined in the

. following cases: ° In re Mackey’s Estate, 46 Colo. 79, 102 P.

« 1075 (1909); People ex rel: Jerome v. Board of Regents, 24 ~

~ Colo. 175, 49 P. 286: (1897); Burnside v. Board of Regents,

T= 100 Colo. 33, 64 P.2d 1271 (1937); Sigma Ché Fraternity v.

: Board of Regents, 288 F.Supp. 515 (D.C. Colo.. 1966);

4 - Buttny, et al. v. Smiley, et al., Civil No. C008 (D. C. Colo. ”

Feb. 14, 1968).

If the Board of Regents, as an employer, were ridnired

_ to treat all its employees exactly as employees of all other -

~ state agericies are treated, its constitutionally vested powers

would become meaningless. The Colorado Constitution |

- created a potential “class” of employees of the University

4 ‘of Colorado in creating the University and its governing

‘e body. The Regents have my directed that that class be

administered = oath.

It is clearly settled that any classification adopted by

| _- a State, in the exercise of its legitimate ends, which classi-

fication has a reasonable basis and is arbitrary will be ©

sustained against an ‘attack based upon the equal protection

-’ clause of: the Fourteenth Amendment. Crescent Cotton

- Oil Co: v. Mississippi, 257 U.S. 129, 137 (1921); Watson v.

_ Maryland, 218 US. 173' (1910); Bachtel v. Wilson, 204 U.S. ©

36, 41 (1907); Smith v. Cahoon, 283 U.S. 553, 566-67 (1937);

Landwehr v. Regents of University of Colorado, 156 Calo.

1, 396 P.2d 451 (1964). ree

Since the classification involved herein was not made

_ by the Regents but by the Colorado Constitution, appel-

5

lants’ attack on the basis of the .Fourteenth Amendment

guarantee of equal protection amounts to a collateral at-

tack on the Constitution of the’ State of Colorado. This” at-

tack cannot be sustained unless the Court is of the opinion

that it is an-arbitrary ‘and unreasonable classification for |

a state constitution to, create a — governing body for

the state epee -

4 The factual basis of. question 5 is ———s a

support further argument.

The record below indicates that all -the appellants

were hired by the University of Colorado prior to the date

the Regents adopted the presently contested’ oath on Feb-

ruary 17,-1967. Inasmuch as the prior oath was not: in-

validated until April 24, 1967, Gallagher v. Smiley, 270

F.Supp. 86 (D.C. Cola. 1987), appellants were 2) bined

while that oath was in effect and either subscribed to it or

had knowledge that it was a condition of employment.

Since the new oath ‘isa verbatim duplication of the first

’ sentence of the old oath, the former requires nothing of |

appellants which was not required as a condition of their

original employment, Therefore, there can logically be no

— of their contractual rights. _

ot CONCLUSION

In the five. questions presented. in appellants’ Jurisdic-

tional Statement there are no issues raised which require —

: further argument in view of prior decisions of the Court,

ae *

6 ; i

hee ‘ s

lack. of standing and insufficient factual biti’ .Therefore,

plead

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es is Re Facial ee "Attorney. . General ©

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_, Appellees’ Motion to Affirm or Dismiss a be granted..

ts Respectfilly submitted,

oil a ai ae : ‘Dost W. Dunsar

ho aa ee .. *» State of Colorado

te TN a Cn JOHN, HontLowsy,

Or ities ee ne ae _ Assistant’ Attorney Geciepal®

See Ti ae - Retident Counsel. for .the.

er eee — Hall, Box 13. -

vr Be Rats = -. University of Colorado

Py ee ae "Boulder, Colorado 80302

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