# Motion to Dismiss — Speiser v. Randall

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Motion to Dismiss
- **Published:** January 1, 1958
- **Citation:** 357 U.S. 513

## Text

- Office - Supres\: Court, U.S.
FIL MD
Rak iv
a Sapau Ge OCT 13 i857

‘ 1 it FE sat

JOHN T. FEY, Clerk

In the Supreme Court |

Rnited States

-OcToBER TERM, 1957

| Nos. | re

LAWRENCE SPEISER, A py tant,

, |
vs. |
Justin A. RANDALL, as Assessor of C ontra | Ne 48 3
|

Costa County, State’ of California,
Apype Mee,

Pasir, Priser, oe | Appellant, [
484

City AND County oF SAN FRANCISCO,
a Mimeinal Corporation,

|
‘

Appelle ( |

Appeal from the Supreme Court of the State of California.
| MOTION TO DISMISS.

Dion R. Hom,
City Attorney of the (its an! Mounty of San Francisco,
State of Cabfornin, 7 ;
2M City Hull, San Francisco 2, California, .
Adtorncy for A pope My en,

’ 4 ° -

Francis Wy. Connins,

Distriet Atrornes of the © ounty of Contra Costa,

State of California, °.

Grornae WL MeCnerr,
Deputy Dietriet Attorney of the County of Contra Costa,
Ntate ot Culite rey, y
Hatl of Records, Mise nev, talifornin, ‘
Roserr M. Desxy,
Deputy City Attorney of the City and Connty of San Prancisco
State of California,
wis City Hall, san Fran ise 2, Cali fernmin,

Of Cloitaie f.

Subject Index

aa Page
Opinions below ...... Je eChd sawn ceevcueceinekagde? fences 2
Jurisdiction ..... J aduawedutwe’ odie ee sei cece bes 3
Questions presented ... Ramee ner Sat Ch eea cel oar kee saies 3
Statement ..... SP yee ee ARE Tre renee a pay FS Sa are

- The Federal meee presented by appellants are not sub-
PSG eee erie rere oe saul d se OL. Cea ee ou edwaes 10
Preliminary ts, Cor ma ces cae hei Pree “10

“I. Provisions of the’ oath, as properly interpreted by the

' California Supreme Court in line with the decisions

of this court, are directed to*only that speech which
ean be properly regulated ..... oF ee Sen agen ae 11

II. The only issue in the present case is the constitutional
ity of the application of the oath requirement to ap-
er ere ry : 14

oeeee Pree ee reeeweneene

III. The inclusion of “advoeacy of the support of a foreign _
government against the United States in event of hos-
tilities” within the California constitutional provision
and statute presents no substantial Federal question 18

IV. The decision of the California Supreme Court prop-
erly upholds a permissible regulation of that speech
advocating foree and violence in a proper peiadetites
to permissible publie objectives ...........-.0.5 0000. 21°

V. There is no conflict among any courts, State or Fed-
eral, as to whether an oath properly restricted to pres-
ent, personal advocacy of violent overthrow and destruc-
tion of our government may be a condition to quali-
fication for tax exemption awarded specifically for pub-
lie purposes imperiled by sueh advocacy -.......,.... 23

CN oc ea coca cdee des cavcenteeeren Pie ye Se Ae oe 28

Table of Authorities Cited

ar
. ~ Cases . Pages
Abrams v. United eaten SEP TO Geis ick eccdvscsvates - 20
Adler v. Board of Education, 342 US. EE OI ner HIE 18, 27
American Communications Association v. Douds, 339 U.S
382 . Rs ht AS ee ee em eee awras 14, 16, 17, 18, 21, 22, 23, 97
Appeal of Albert, & Se Fe | err 26
Board of Ranistion v. Cooper. 136 Cal: App. 2d 513, 289 P.
7 Wh eases PLOT LEE OTT OCTET OR ETT TEL EEL 25
Burger v. Employees’ Retirement System, 101 Cal. App. od
700 PEE rae ere GUL ieee uated oe boo eked 6 ee O04 21
Chesney v. Byram, 15 Cal. 2d 460, 101 P. 2d 1106........ 27

Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497.... 27

Communist Party v. Peek, 20 Cal. 2d 536, 127 P. 2d 889.. 25

County of Los Angeles v. Rieterry, 131 Cal. 461, 63 Pac.
WP aac take sce OA ioe ee Pre Pr eer eer Tee 15

Danskin v. San Diego Unified School @istriet, 28 Cal. 24d 536 = -24
Davis v. University of Kansas, 129 F. Supp. 716 ......... - 26
Debs v. United States, 249 U.S. 211.......0..0.. 0.06 ueee. 20
Delonge v. Oregon, 299 U.S. 353 .. 1... cc cee tees 3
Dennis v. United States, 341 US. 494 Se 13, 14, 16, 18, 19, 27 |

First Unitarian Church of Los Angeles v. County of Los
Angeles, 48 Advance California Reports 417 and unoffi-

Cee I OP ED OB, BD DO ccc cvccedecesersveners 2,15
Fitzgerald v. City of Philadelphia, 376 Pa. 379, 102 A. 2d

ee ee eee eee ceesdesbaeceFuceee
Frohwerk v. United States, 249 U.S. 204 ..00..000...0..... 20
(farner v. Board of Publie Works of Los Angeles, 341 U.S.

ee de esa cede beciaedvicecrevrs 13, 14, 18, 27
(ierende y. Board of Supervisors, 341 U.S. 56 00.2.2... 14, 18, 27,
a SS ee a,

Hamilton v. Regents of the University of California, 293
gE eS raed ete degpetase saat 19 -

Hirsehman v. County of Los Angeles, 39 Cal. 2d 698, cert.
denied as Petherbridge v. Los Angeles County, 345 U.S.
1002 :

. Tape or AuTHoritizs Crrep ii
Pages
Ilousing Authority of the City of Los Angeles v. Coan,

130 Cal. App. 2d Supp. 883, 279 P. 2d 215 ...........6. 24
Huntamer v. Coe, 40 Wash. 2d 767, 246 P. 2d 489 ..... ‘eee «6D
In re Anastaplo, 3 Ill. 2d 471, 121 N.E. 2d 826, cert. den.,
| ee eee 19, 26, 27
In re Summers, 325 U.S. 561 ............ bkvecn va seetee ae
Kaiser v. Hopkins, 6 Cal. 2d 537 ........:........ Gaeer. 21
Konigsberg v. State Bar of California, 354 US. ,1LEd .°
PT cell Stake apeded codes hs Oks eheasrecnsthacens 26
Kuteher v. Housing Authority of Newark, 20 N.J. 181, 119

1% 2 eee eeptserpeccovesedebeveccosecevonssesoos «6am
Lawson v. Housing Authority of City of Milwaukee, 270

Wis. 269, 70 N.W. 2d 605, cert. den. 350 U.S. 882 ...... 23
Lockhart v. United States, 264 Fed. 14, cert. den. 254: U.S.

BE Ce. dances a cieea eae inaeeNaneecces caus snneenss oa, @
Milasinovich v. Serbian Progressive Club, 369 Pa. 26, 54 A.

ME si). dca gs anys hee er sean bas Chee ewexeaeneise. 26
Parker v. County of Los Angeles, 338 U.S. 327............ 15

People v. Perry, 212 Cal. 186, 298 Pac. 19, 76 ALR 1331. 15
Piekus v. Board of Edueation of the ( ity baud Chieago, 9 tl.’

ke @ 2 £ fs Aree eee rer ee 25.
Pockman v. Leonard, 39 Cal. 2d 676, fai dismissed for ©
want of a substantial federal question, 345 US. 962..... 14

Prince vy. City and County of San Francisco, 48 Advance
California Reports 472 and unofficially reported in 311. P.

ea ee en wa ad eke aes aka 2,5, 6,15

Rudder v. United States, 226 F. 2d 51............ Segoe 24
a ; . , j

Samuels v. United Seamen's Serviey, Inc., 165 F. 2d 409.... °° 21
Schoborg v. United States, 264 Fed. 1 ..................: # 2
Slochowert v. Board of Edueation, 350 UUS. 551.......0..... 27
Speiser v. Randall, 48 Advance California Reports 476 and

unofficially reported in 311 P. 2d 546.................. 2.6

Steinmetz v. Board of Education, 44 Cal. 2d 816, 285 P.. 2d
re ee eS eh Sb oc Ge Bick eae eu eels oe 25

iv Tas_e oF AwrHoritizs Crrep
. Pages
United States v. an 255 U.S. 407..... (inaueaheons 20
United States v. Schulze, 253 Fed*°377, aff'd as Sehulze 1 v.
United States, 259 Fed. 189........... SS Nae unin bac a ine ie 20
Wimmer v. United States, 264 Fed. 11, cert. den. 253 US.
494 CHOCO H OCHO HHREREC ACO OREO RS OOS i Y) 20
Yates v. United States, 354 US. wong J L.Ed. 2d 1356 ....
Se ee kta nant a aavtadaanceres 11, 12, 13, 18, 19
oe,
Constitutions
United States Constitution :°
First Amendment ...:.. 0.0.26. see cere cence cere eeees 4, 22
Fourteenth Amendment .......<............ Aya ee! 4,5
Article I, Section 9, Clause 3, Bill of Attainder ....... 5
BE WE I © ogo oa a vp dean uieavecedenvcns 5
California Constitution :
Article XIII, Section 1 ............ ey Leia nie et
- Article XIII, Section 14% ...... uuwe Caweekeearwe tae 7
Article EX, Sestion 19 2.2... cescvesccsccccvessevees 8.
Statutes

Espionage Act of 1917, Section 3 (Act of June 15, 1917, e.
30, 40 Stat. 217, as amended by Act May 16, 1918, ¢. 75,
a Se ee Og gs cs voce ue cancccekuaees 20

California Revenue and Taxation Code :

Section 26 ..... PS I eee Se ee ces ort 15
Section 32 (1953). et wee ae Pe ee Say Cree anaes 9
I ae errr ants a
Smith Act (recodified as 18-U.S.C., Section 2385, 62 Stat:
| ht eh le pay nee mRNA Fit lye BS | SPE gone
Sr ees EE ED - So ond) aaa bata cen ee deeehnae 3
Rules
Rules of the Supreme Court:
IN SN oo re ee ouevens weds 3

ae SS) es cece OP AR 8 Mee Penile a feel a eed hee 1

.

In the Supreme Court

OF THE

" Muited States Fn,

OCTOBER een 1957

Nos.

|. LAWRENCE SPEISER,
- Appellant,

Vs. Pty ;
Justin A. RANDALL, as Assessor of Contra No.
Costa County, State of California, |
‘ Appellee.

my

DANIEL PRINCE,
. Appellant,

VS. . | No:

City aNp County oF SAN FRANCISCO, — -
a Municipal Corporation, ’

Ap pellee. ;

Appeal from the Supreme Court of the State of California.

_ MOTION TO DISMISS.

Appellees City and County of San Francisco and
Justin A. Randall move, pursuant to Rule 16(1), that
the appeals from the final judgments of the Supreme:
Court of the State of Califormia be dismissed for want

2

of jurisdiction on the ground that the appeals do not
present a substantial federal question.

A dite

. OPINIONS BELOW.
The Superior Court of the County of Contra Costa.
in the case-of Speiser v. Randall issued an. unreported
opinion, which is set forth as Appendix A of the Ju-
risdictional Statement. The opinion of the Supreme
Court of the State of California in said case appears |
as Appendix C of the Jurisdictional Statement and is
officially reported in 48 Advance California Reports
476 and unofficially reported in 311 P. 2d 546.

The Superior Court of the City and County of San
Francisco in the case of Prince v. City and-County of
San Francisco issued an unreported opinion, which is ©
set forth as Appendix B of the Jurisdictional State-
ment. The opinion of the’ Supreme Court of the State
of California in said case appears as Appendix D of
the Jurisdictional Statement and is officig)ly reported
in 48. Advance California Reports 472 and unofficially
reported in 311 P. 2d 544. Pade

The opinions of the California Supreme Court in
the causes at bar meorporate the reasoning and the
conclusions of that Court in a companion case, First
Unitarian Church of Los Angéles v. County of Los
Angeles, which appears as Appendix E of the Juris-
-dictional Statement and which is officially reported
in 48 Advance California Reports 417 and unofficially
reported in 311 P. 2d 508.

3

_ JURISDICTION. _

The judgments of the Supreme Court of the State
of California in these causes were filed on April 24,
1957. Notices of Appeal were filed with the Supreme.
Court of the State of California on May 27, 1957.
Appellants seek to invoke the jurisdiction ‘of this
Court under Title 28, U.S.C., Section 1257(2).

‘Since, pursuant to Rule 15(3) of the Rules of the
Supreme Court; appellants have filed a single Juris-
dictional Statement for both causes, motions to dis-

miss for want of a substantial federal question are

similarly consolidated.

QUESTIONS PRESENTED.
The State of California by action of its Legislature

-and a vote of its people, in 1952, enacted a constitu-
tional amendment providing, in part, that no person

or organization advocating forcible overthrow of the
federal or state government .or:support of a foreign
government against the United States in the event of

hostilities would receive any tax exemption from the

state or subordinate agencies. The Legislature, in

~ 1953, enacted procedural legislation requiring estab-

lishment of this requisite fact by a declaration under
oath in certain cases involving property tax exemp-
tion.

California by a constitutional provision exempts

. one thousand dollars of the property of each ‘veteran

of certain specified wars and campaigns from state

4

property taxation. In these cases, two veterans, plain-
tiffs in the trial court and appellants in this Court,
sought the stated property tax exemption without exe-
euting the required declaration of non-advocacy ap-
_ pended to the property tax return. The appellee asses-
sor, Justin A. Randall, of Contra Costa County, and
the Assessor of the appellee City and County of San
Francisco denied the exemptions. After appellants
. brought separate actions to challenge said rulings, the
action of the assessors was ultimately upheld by the
judgments and opinions of the California Supreme
Court. |
_ The questions presented are, with one. exception,
related to the asserted invdlidity, under the United
States Constitution, of the state constitutional pro-
vision precluding grants of tax exemption to those
who advocate violent overthrow of the government
and of the procedural statute which implements said
provision, as applied to the property tax exemption
given under California law to a veteran by reason of
his military service.

‘Briefly stated, thése issues are raised:

1. Does an oath declaration requirement applying.
- only to present, personal advocacy of forcible over-
throw of the federal and state governments and sup-
port of a foreign government in event of hostilities,

as a condition to the award of a tax exemption ‘to vet-
erans for military service, violate freedom of speech
and assembly or equal protection of the laws as pro-
tected by the First and Fourteenth Amendments to
the United States Constitution ?’

5

2, “Does such requirement violate procedural due
process under ‘the Fourteenth .Amendment or con-
_stitute a Bill of Attainder, under Article I, Section 9,
Clause 3?

3. Does such requirenrent violate the privileges and
immunities clause of the Fourteenth Amendment?

4. Does such requirement violate . Article VI,
Clause 2, either by invading a field pre-empted by or
by being in conflict with the federal criminal statutes
defining and prov iding criminal or for subver-
sion and sedition ?:

°

STATEMENT.
The facts in both of these eases are hased solely on
stipulations introduced: in the respective trial ‘Courts.
While there is no factual conflict, these is no such eon-_
cession as claimed by appellants, on pages seven and
eight of their Jurisdictional Statement, that appel-
lants were in all respects properly qualified to receive
tax exemptions except for their failure to execute the
non-advoeacy declaration. Since the respective stipu-
jJations merely covered fulfillment of such require-
ments as veteran status, residence and possession of
no more, than the requisite amount of property and
did not extend to the fact of advocacy or non-advo-
eacy by the appellants, there i nothing in the record -
constituting any such concession, Rather, the conclu-
sions of law of the trial court in the Prince ease
found that that appellant did not qualify under the
oath provisions ‘‘in that he has not shown himself

s

_ tobe a person entitled to receive the said exemption.”’
- (Clerk’s transcript, proceedings in the San Francisco

Superior Court, page 45, line 20 through page 46, line

2.) As the California Supreme Court held, an ‘‘as-

sumed fact’’ as to the non-existence of advocacy is not |
enough for the purposes of taxation. (Appendices to’
Statement, page 47. )

In the Prince case, the Superior Court of the City

and County of San Francisco rendered judgment

against Prince in an action brought by him. against
the City and County of San Francisco to reéover
taxes paid under protest, together with a full and
carefully documented opinion of, Judge William T.
Sweigert which appears as Appendix B to the Juris-

. dictional Statement (page 6 of Appendices);

In the Speiser case, the Siperior Court of Contra

' Costa County rendered judgment in favor of appel-

lant Speiser in an action for declaratory relief against
Justin A. Randall, the Assessor of said county, with
an opinion of five judges sitting en bane pursuant to —
a local practice, which appears as Appendix A of this
Statement (page 1 of Appendices).

Appeals were taken to the California Supreme

Court in both cases, where the court, after exhaustive
’ briefing and full oral argument, decided that no fed-

eral or state constitutional. provision is. violated by re-
quiring a veteran to take a narrowly .drawn oath

_ limited to present, personal non-advoeaey of forcible

overthrow of the United States and State govern-

ments and of support of a foreign government against |

the United States in the event of hostilities as a rea- .

7

sonable condition to qualification for a tax exemption
given specially to veterans by-reason of their veteran _
status alone, as a reward for and incentive to patriot-
ism.

There is no question that the asserted federal ques-
_> tions were timely claimed and- a pre-
‘served.

The. velevank provisions of the state Constitution
and state law are the following :

California Constitution, Article XIII, Section 1,
states the: general rule of the taxability of all prop-
erty in the state: .

‘All property in the State except, as otherwise
in this Constitution provided, not exempt under
the laws of the United States, shall be taxed in
proportion to its value, to be ascertained as pro-.
vided by law, or. as hereinafter provided... .”’

Section 201, Revenue and Taxation, Code of the
State of California constitutes a legislative imple-
mentation of the foregoing mile: | ; .

‘All property in this. State, not exempt under
“the laws of the United States or of this State, 1s
: Syubjeet to taxation under this code.”

California Constitution, Article XIIT, Section 114,
creates the veterans” exemption:

“The prope arty to the amount of 1, OOO of every
resident of this Staite who has served in the army,
navy, Marine corps, coast guard or revenue ma-
rine (revenue cutter) service of the United States
(1) in time of war, or (2) in time of peace, ina
campaign or expedition. for service in which a

*

_ medal has been issued by the Congress of the
. United States, and in either case has received an
-honorable discharge therefrom, or who after such
‘4. service of the United: States under such condi-
‘tions, has continued in.such service, or who in
time of war is in such service, or who has been
released from active duty because of disability f
resulting from’ such service in time of peace or f
under other honorable conditions, or lacking such }
amount of property in his own name, so much of |
the property of the wife of any such person as
shall be necessary to equal said amount; ... [
shall be exempt from taxation; provided, this.ex- [|
emption shall not apply to-any person named °
herein owning property of the value of $5,000 or
-more, or where the wife of such soldier or sailor
owns property of the value of $5,000 or more. No
- exemption shall be made under the provisions of
this secfion of the property of a person who is not
‘legal resident of the State; ...”’

(Deletions cover other cnians of the exemp-
tion not relevant to this case. )

-
.

The provision of the State Constitution which au-
thorizes the loyalty qualification requirement before
this Court is Article XX, Section-19: 4

‘Notwithstanding any other provision of this
Constitution, no person or organization which
advocates the overthrow of the Government of the
United States or the State by foree or violence
or other unlawful means or who advocates the
sipport of a foreign government against the
United States in the event of hostilities shall: |
(a) Hold any office or employment under this
State, including but not limited to the University

i |
7

9

of California, or with any county, city or county,
city, district, political subdivision, authority,
hoard, bureau, commission or other public agency
of this State: or .
(b) Receive any. exemption from any tax im-
posed by this State or any county, city or county,
city, district, political subdivision, authority,
‘ board, bureau, commission or other public agency

of this State. . aan

The Legislatiire shall enact Such laws as may be
necessary to enforee che provisions, of this sec-
tion.”’

kD ee ee i BO A ee se

The 1953 session of the Legislature enacted Section
_° 32 of the Revenue and Taxation Code as a procedural
measure implemeyting the constitutional provision in
the field of property taxation:

Any statement, return, or other document in
which is claimed. any exemption, other than the
householder’s exemption, from any property tax.
imposed by this State or any county, city or
county, city, district, ‘political subdivision, au-
thority, board, burean, commission or other pub-
lie ageney of this State shall contain a declara- -
tion that the person oF organization making thes —
stitement, return, or other dociiment does not
advocate the overthrow of the Government of fhe
United Stites or of the State of California by force
_or violence or other unlawful means nor advocate
the support of a foreign government against the
United States in event of hostilities. -If any such
statement, return, or other document does not
contain such a declaration, the person or organi-
gation making such statement, return,’ or other
‘document shall not receive any exemption from

Gy

10

fy

the tax to which the statement, return, or other
document pertains. Any person or organization
who makes such declaration knowing it to be false
is guilty of a felony. This section shall be con-
strued so as to effectuate the purpose of Section
19 of Article XX of the Constitution.”

THE FEDERAL QUESTIONS PRESENTED BY

APPELLANTS ARE NOT SUBSTANTIAL.

. PRELIMINARY STATEMENT. .
Appellees, the City and County of San Franciseo
- and Assessor of the County of Contra Costa, State of
California, have made this motion on the basis that the
declaration included as part of the affidavit required
for the veterans’ exemption is a narrowly drawn form
of oath limited to language judicially approved by
this Court. In prescribing only present, as distin-
guished from past advocacy, in touching personal con-
duct, ‘as differentiated from mere affiliations, or be- .
liefs, and in being limited to that narrow class of
speech eliciting forcible overthrow of our government
and war support of fereign governments, this: form of
declaration is justified as a reasonable condition for
qualification for civil benefits of tax exemption not

_ extended to all citizens, but merely to veterans as a

reward for and incentive to the patriotism which the
Legislature and People have determined and the Su- |
preme Court of California has found will-be thus
stimulated and fostered and which advocates of de-
struction ef the government derogate.

11

As only the Jurisdictional Statement in the instant
causes has been served on appellees, appellees will
merely refer to same and will not discuss the Juris-
dictional Statement in First Methodist Church of San
Leandro v. Hortsmann and First Unitarian Church
v, Horstmann, sought to be incorporated on page ten
of the Jurisdictional Statement. Appellees will answer
appellants’ contentions seriatim.

I PROVISIONS OF THE OATH, AS PROPERLY INTERPRETED
BY THE CALIFORNIA SUPREME COURT IN LINE WITH THE
DECISIONS OF THIS COURT, ARE DIRECTED TO ONLY THAT
SPEECH WHICH CAN BE PROPERLY REGULATED.

In contending that this form of oath transgresses
the rule of Yates v. United States, 354 U.S...
1 L. Ed. 2d 1356, that advocacy of ideas.as distin- -
euished from action may not be inhibited, appellants
make a fundamental error, Appellants fail to reeog-
nize that the effect of. the particular regulation on
speech must be measured by the effect of the language
of the oath, as properly interpreted.

In the Yates case, this Court held that the broad
language of the Smith’ Act (recodified as 18 U.S.C.
(2385, 62 Stat. 808), which ce vers not only advocating,
but also abetting, advising and teaching the. ‘duty,
‘" necessity, desirability or propriety” of forcible ovet-
_ throw would he properly interpreted so as to he
limited te advocacy directed at promoting unlawfil |
action”: | Pe | |

“We are thus faced with the question whether
the Smith Act prohibits advocaey and teaching of

12

forcible overthrow as an abstract principle, di-
voreed from any effort to instigate action to that
end, so long as such advocacy or teaching is en-
mere in with evil intent. We hold that it does
not .

“Ww e — not, however, decide the issue before
us in terms of constitutional compulsion, for our
first duty is to construe this statute. In doing
so we should not assume that Congress chose to

- disregard a constitutional danger zone so clearly.
marked, or that it used the words ‘advocate’ and —
‘teach’ in their ordinary dictionary meanings
when they had already been construed_as terms of
art carrying a special and limited connotation. . .
The statute was aimed at the advocacy and teach-
ing of concrete actjon for the forcible overthrow
of the Government, and not of principles divorced
from action.”’

sos U8; at , | L.Ed. 2d at 1304 1376.

Further, the opinion held that a purpose to cause
others to engage in resistance to the government “* per-
haps during war or during attack upon the United
States from without” would be covered bad the statute --
and, stated: |

“It is not necessary for convietion here that
advocacy of ‘present violent action’ be proved.”

354 U.S. at ...., 1 L.Ed. 2d at 1382, 1386;
See also 1384.—

The opinion of the California Supreme Court is in
full compliance with the mandate of this Court in
the Yates case. The California opinion (Appendices,
page 39) states that the oath requirement ‘*is not a-

13

limitation on mere belief but is a limitation on ac-
tion—the advocacy of certain prescribed conduct.”’
The state opinion significantly adds, ** Advocacy con-
stitutes action and the instigation of action, not mere
belief or opinion.”’ Further in the opinion (Appen-
dices, pages’ 46-47 ), the California Supreme Court, in
a discussion of Dennis v. United States, 341 U.S. 494,
directly defined and thus limited. the oath require-
ment to only that activity prescribed. by the Smith
Act (italies added) : )

‘‘In that case [Dennis v. United States] the
court upheld an instruction to the jury that if
the defendants actively advocated governmental
overthrow by force and violence as speedily as
eircumstances would permit, then as a ‘matter
of law... there is sufficient danger of a sub-
stantive evil that the Congress has aright to pre--
vent to justify the application of the statute un-
der the First Amendment of the Constitution.’
In the present case the constitutional provision
is concerned with those who advocate the same
prohibited activity.’’ (italics added)

Thus the Ci. ifornia Supreme Court has placed the
same interpretation and the same limitations on the -
application of the tax exemption qualification require-
ment as this Court has done in regard to the Smith ‘
Act ‘in the Yates and Dennis cases. See (rarner ve
Board of Public Works of Los Angeles, 341 US.
716, 723-724 (oath containing similar wording.)

‘The reversal of the judgments of conviction in the
Yates ease was hased merely on faulty instruction of
the jury and* represented an upholding and not a

14 P
repudiation of the statutory language condemning the
proscribed advocacy. Similar or broader language
than that used in the California Constitution and stat-
utory provisions has been consistently upheld by this
Court, in criminal prosecutions as: well as in oath
cases revoking civil benefits as well as conditioning
qualification for same. -
Dennis v. United States, swpra; -
American Communications ° Association v.
. Douds, 339 U.S. 382;
Gerende v. Board of Supervisors, 341 U.S. 56
(oath form covered “advising”? and ‘‘teach-
ing’’, in addition) ; |
Garner v. Board of Public Works, supra, (simi-
lar form) ;
Pockman v. Leonard, 39 Cal. 2@ 676, appeal dis-
missed for want of a substangial federal ques-
tion, 345 U.S. 962;
Hirschman v. County of Los Angeles, 39 Cal.
2d 698, cert. denied as Petherbridge v. Los
Angeles County, 345 U.S. 1002.

Said cases have all: upheld regulations expressly

' directed to ‘‘advocacy”’ of forcible overthrow.

Il. THE ONLY ISSUE IN THE PRESENT CASE IS’ THE CONSTI-
TUTIONALITY OF THE APPLICATION OF THE OATH RE-
QUIREMENT TO APPELLANTS.

On pages thirteen and fourteen of their Statement,
appellants raise contentions not made in the lower

15

courts. They thus ignore California Revenue and
Taxation Code Section 26:.

“If any provision of this code, or its applica-
tion to any person or circumstance, is held in-
valid, the remainder of the code, or the applica-
tion of the provision to other persons or circum-
stances, is not affected.”’ :

Moreover, under state law, particularly in tax cases,
only the person injuriously affected by the provision
may complain.
County of Tes Arigeles v. Eikenberry, 131 Cal.
461, 468, 63 Pae. 766, 768 ;
See alvo, People v. Perry, 212 Cal. 186, 193,
298 Mae. 19, 22, 76 ALR 1331. :

‘Since the applieation of the challenged provisions
to other taxpayers is neither at issue, nor in any man-
ner indicated in the record, no question is presented to
this Court at this time as to’such applications. Cf.
Parker v. County of Los Angeles, 338 U.S. 327.

Rather, the California Supreme Court specifically
indicated that there are special reasons for the valid-

ity of i a ‘ation « the oath ad sidan th to veterans.

dix D ae. ndices, page 23) and First Vaan:
Church of Los Angeles +. County of Los Angeles
(discussing the veterans’ tax exemption) Appendix E
(Appendices, page 45.) These reasons are found to be
that veterans as the recipients of such. special bene-
fits, are intended to be rewarded for past partriotism,
to be encouraged as to their present loyalty and to
serve as an example of dedicated service. These rea-

ry ‘ee cole

sons, found by the California Supreme Court to be
the public purposes involved, justify as the only issue
at bar, the. application of the property tax exemption
qualification to veterans, as distinguished from others
who qualify not by reason of a special personal status
_ but by reason of the nature or ty pe of property owned
or, as organizations, by the nature of their purposes
or activities. :

-. .

While appellants rely on American Communications
Association. v. Douds, 339 U.S, 382, as limiting *he
use of the oath procedure to situations involving a
few individuals, the full holding of that ease: expresses
the broader test that in a case of an ‘‘indirect, condi-
tional, partial abridgmérit,” the effect of the regu-
lation is to be weighed as against the public interest
served.

‘‘When particular conduct is yeeuleied 1 in the.
interest of public order; and the regulation re-
sults in an indirect, conditional, partial abridg-

‘ment of speech, the duty of the courts is to deter-
mine which of these two confhcting interests de-
mands the greater protection -’ der the particular
circumstances presented... °9 U.S. at 399. -

Further language in the Dowds case fully supports
our position that, the clear and present danger test is
applied differently to a limited abridgment of speech
protecting a substantial public interest other than —
hasie national security.

“Bnt in suggesting that the substantive evil
must be serious and substantial, it was never the
intention, of this Court to lay’ down an absolutist
test me: asured in terms of danger to the Nation.

“y

+ ie
When the effect of a statute or ordinance upon
the exercise of First Amendment freedoms is re-
latively small and the’public interest to be pro-
tected is substantial, }t-is: obvious that a rigid
» test requiring a showing of imminent danger to
the security of the Nation is an absurdity. . .”’
339 U.S: at 397. © )

In the present, cases the California Supreme Court
has determined from the subject-legislation that sub-
stantial public interests are served thereby. In Dennis
r. United States, supra, 341 U.S. at 506, this Court
analyzed and approved its prior holding in Gitlow v.
New York, 268 U.S. 652,.as to the effeet to be given to
a state regulation specificalf¥ directed. at that narrow
type of speech involved in 1 those cases, as in the causes
at bar.

*Gitlow, however, presented a different ques-
tion. There a legislature had found that a certain
kind of speech was, itself, harmful‘and unlawful:
The constitutionality of such a state statute had to
be adjudged by this Court just as it: determined
the constitutionality of any state statute, namely,
whether the statute was ‘reasonable’: Since it
was entirely reasonable for a state to atterhpt, to
protect itself from violent overthrow, the statute
was perforce reasonable.” .

| Dennis v. United States, supra, 341 U. S; at 506:

Also see:
American Communications Association v. Douds,
339 U.S. at 401 (effect of legislative deter-
mination.) | |

cen

5 18

J naijed by these standards, this narreéw Sean of.
oath, couched i in language approved by this Coust. (see
Sections I, supra, and III, infra), is permissible as
an ‘‘indirect, conditional, partial abridgment of
speech”’ since-it operates not as a criminal, sanction,

as a revocation of public employment rights or ‘as a

* ¢ondition to holding elective office (all of which bave -
_? been approved by this Court), but rerely | as a condi-
_« tion to the qualification for the awaru of a ‘limited tax
exemption benefit dedicated to securing the: very’ ob-
‘giectives | “of patriotism. which the oath ‘has: been
“expressly found to serve. Judged by its limited impact

‘ ds* contrasted wjth the public purpose served, the
constitutionality of this legislation is affirmatively

established. . * ;
American Communications Association v. Douds,
supra; .

“- “Dennis v. United States, supra; ;

Garner v. Board of Public Works of Los |
Angeles, supra; _ i

~ Gerende v. Board of Supervisors, supra;

Adler v. Board of Education, 342 U.S. 485.

!

IJ. THE INCLUSION OF ‘‘ADVOCACY OF THE SUPPORT OF A-
FOREIGN. GOVERNMENT AGAINST THE UNITED STATES

IN, EVENT OF HOSTILITIES’’ WITHIN THE CALIFORNIA |

aes STITUTIONAL PROVISION AND STATUTE PRESENTS
YF assaraas FEDERAL QUESTION. .

Appellants misread the decision of this Court in

| 7 Ygtes v. United States, supra, which, contrary to their
‘ & o . ao’? .

. %

i ’
. A wie +; f

a

contenti eferred to and reaffirmed the holding of

the Dennis case “‘that advocacy of violent action to be .
taken at some. future time was enough.’’ 354 US. at...

ES , 1.L.Ed. 2d at 1376; ‘The- Dennis. case—held, as

noted by the’ Yates case, that the future»action need .

only be:‘‘at a propitious ’time”’ or ‘‘when thie leaders
feel the circumstances .permit.” 341 U.S. at 507.

a Henee, we contend that advoeacy, as'an accepted
concept of action by the way of support of a foreign -
government in the future contingency of war between ©
“it and the United States, is subject to regulation as

conduct similar to and closely allied with advocacy of
forcible overthrow, as a form of ‘accomplishing same
through destruction of the government. The Califor-
nia Supreme Court (Appendices, page 46) similarly

held that such conduct would frustrate the state's
program of tax exemption,.as found by that Court to

have been so limited as'to exclude advocacy of such
conduct, in’ the attainment of public purposes by the
Legislature and the. electorate, It is noteworthy that
even the privileges of law practice and of a university

education have been denied by reason of failures,
‘respectively, to take an oath of allegiance and sup-

port of: federal and state governments and to engage

in compulsory, military training. In re Summers 325

U.S. 561; also see In re Anastaplo (Supreme Court,
Illinois), 3 Til. 2d 471; 121 N.E. 2d 826, appeal dis-
missed for want of a substantial federal question and

- eetts den., 348 U.S. 946; Hamilton v. Regents of the

University of scapes 293. U.S. 245.

+ FI

*

weet ee ee
Likewise; when appellants contend that the langu- .
. age dealing with support of a foreign government, is.
judicially unconstrued, they ignore those puthorities,
cited by appellees to the California. Supreme Court,
which upheld Section 3 of the Espionage. Act ef 1917
‘(Act of June 15, 1917, ¢. 30, 40 Stat. 217, as amended
by Act May 16, 1918, c. ‘75, $1, 46 Stat. 553). which
imposed pelt senelionn on ‘‘Whoever shall by word.
_ or act support or favor the cause of any country with
which the United States is at war, or by word or day
| oppose ‘the cause of the United States therein. .
_. Lockhart v. United States,
264 Fed. 14, cert. den. 254 U.S. 645;
Wimmef v. United States, .
264 Fed. 11, cert. den. 253 USS. 494 ;

See also, upholding the Eaaionnas Act of 1917,
. in its entirety ; :
_-—>Prohwerk v: United States, 249 US. 204:
Debs wv. United States, 249 U.S. 211;
Abrams v. United States, 250 U.S. 616;
~” “United States v. Burleson, 255 U.S, 407.

‘Moreover, ‘in view of the fact of prior judicial
definition of the words “Support”? and “‘hostilities’’, —
there can be no just claim that. the,terms in question —
are unconstitutionally vague. -

United States v. Schulze, 253 Fed."377, 379-380,
aff’d as Schulze v: United States, 259 Fed.
189 (definition of ‘‘support’’) ; | .

psec: v. United — 264 Fed.. 1, at Ss
, (Same) ;

21°
. @

* Samuels v..United Seamen’s Service, Inc., 165°.
- F.2d 409, 411-412 (definition of hostilities as
“open and hostile warfare activity”);;
Burger v. Employees’ Retirement Seton, 101
_ Cal. App. 2d 700, 702 (definition of “*hostili- .
ties’”’; accord. )
See also: - |
| Kaiser v. Hopkins, 6 Cal. 2d 537 (definition ,
- of “‘war’’ for purpose of veterans’ property
Toe exemption as active conduct of hostili-
ties.) :

IV. THE DECISION OF THE CALIFORNIA SUPREME ‘COURT
PROPERLY UPHOLDS A PERMISSIBLE. REGULATION OF -
THAT SPEECH ADVQOCATING FORCE’ AND VIOLENCE IN A

o>? ee a oe

TIVES.

As the California Suprenie ‘Court has found (also |
see Section II, supra), the limitations on the state’s
tax exemption program are justified on the basis of
preservation of the purpose of the tax exemptien as

-a reward for past and. an. incentive to continued -
patriotism and «in discouraging participatién in the -
violent overthrow or destruction of our government
by limiting-rewards to those who. ate net so engaged.

“In view of the limited application of the clear and
present danger test to regulations with a “relatively
-small’’ effect on First Amendment. freedoms and a
substantial, public interest at stake ( AmericanCom-
munications Association v. Douds, wupra, 339 US.

nl

Pr bo 22

. Pre ;
at 397, Section Il, supra), this this conditional non-perial |
‘limitation on that type of speech otherwise subject to
criminal. proscription fulfills the test stated both as .
aiding to prevent advocacy of destruction of the gov-
e ernment and perversion of the fundamental ee
purpose | f the tax exemption.

sro the extent possible for a self-executing state
constitutional amendment submitted to and enacted by.
vote of the people,. there is a clear intendment of these
substantial purposes, as, found by the. California .

| Supreme Court.

It need hardly be vointed out that, properly con-
sidered from the individual, standpoint, denial of a’
’ limited tax exemption, awardable in the reasonable
discretion of the state, has far less effect on the extent
\ ‘of free speech than criminal convietions and denials
_* of private and public offices and employment upheld,
“en some occasions, -on provisions in-terms more re-
strictive of First ‘Amendment freedoms than the
narrow language, at bar. (See casés cited Section IT,
supra.) Thus, the limited effect of the provisions ©
before this Court, weighed against the. substantial
public interest protected by the enactreents, justifies
the. determination of the California Supreme Court,
made on examination of the precedents of this Court, _
that the public interest “demands the greater: ‘pro- -
_tection*under the particular circumstances presented.’’
_ American , Communications Association v. Douds,
supra, 339 v. S. at 399.

Thus distinguished are conclusions of ie state
courts as to whether other public interests are served
2

2

°

by. other (and incidentally broader) types of oath
- regulations, Cf. Lawson v. Housing Authority of City
of Milwaukee (Supreme Court, Wisconsin) 270 Wis.

269, 70 NW 24-605, cert. den. 350 U.S. 882 (dealing ©.
with an oath of non-membership in organizations.

listed as subversive.

td rs

v. THERE Is NO. CONFLICT AMONG ANY COURTS, STATE OR
-PEDERAL, ‘AS TO WHETHER AN OATH PROPERLY BE-
STRICTED TQ PRESENT, PERSONAL ADVOCACY OF VIO-
LENT OVERTHROW AND DESTRUCTION OF OUR GOVERN-
- MENT MAY BE A CONDITION TO QUALIFICATION FOR TAX
EXEMPTION AWARDED SPECIFICALLY FOR PUBLIC PUR-
POSES IMPERILED BY SUCH ADVOCACY. —
As appellants themselves admit, whether it is a
_ privilege or a right which is concerned is not control-
ling. As pointed out in the previous section, there is
no basic distinction in any event in the test by which
_ the interests of free speech are to be balanced, in the
ease of an ‘‘indirect, conditional,. partial abridgment”’
as against the substantial quality of ‘the public pur-
pose to be served. American Communications Associa-
_.tion v. Douds, supra, 339 U.S. at'399. As this Court
also there stated, after listing numerons instances in
which First Amendment rights have ‘been held pro-
perly infringed -to protect the public from various
evils of conduct, prejudicing privacy, municipal

government, health, moral standards, the publie ser- _

vice, or the bar:

“We have never held that ie freedoms are
absolute. The reason is plain. As Mr.‘ Chief

Justice Hughes put it, ‘Civil liberties, as guar-

y

=.

anteed by the Constitution, imply the existence
of an organized society maintaining public order
without which liberty itself would be lost. in the
“excesses of unrestrained abuses.’ Cox v. New
Hampshire, supra (312 U.S, at 574, 85 L.Ed. 1052,

61 S. Ct. 762).”’
339 U.S. at 399.
ts Appellants do not cite one case th:t holds an oath
‘¢ or other qualification requirement invalid when same

has been based upon a personal pledge of present non-
advocacy of forcible overthrow of the government.

In the public housing oath cases cited by appellants,
there was involved not only a different public pur- :
pose——i.e., providing better housing that was not

‘served, but the oath mechanism also not only pro- °
scribed affiliation but extended the proscription to
organizations loosely ‘named by mete administrative
fiat. Indeed, Rudder v. United States, 226 F. 2d 51, -
53-54 and. Housing Authority of the City of Los
1 Angeles v. Cordova, 130 Cal. App. 2d Supp. 883, 884, —
- -- 299 P, 2d 215, and Kutcher v. Housing Authoritg of
e Newark, (Supreme Court, New Jersey), 20 N. J. 181,
119 A. 2d 1, 4, cited by appellants, all expressly
except . from the decisions situations where tenants. -
of housing sprojects are ° sought to be evicted because
engaged in advocating violent overthrow or are sub-
versive.

Likewise the decision of Danskin v. San Diego
Unified School District, 28 Cal. 2d 536, to the extent |
it is not superseded by the decisions of the California
Supreme Court: in the present cases, similarly ex-

cluded from consideration personal advocacy of over-

throw

and also involved a complete prohibition of

speech on all topics, not confined to such advocacy.
Cf. DeJonge v. Oregon, 299 U.S. 353.
Appellants ignore the state cases which by forms
of oaths and regulations much closer to those at bar
have upheld renunciation of. present advocacy of de-
struction of the government as a condition to appro-

priate.

civil benefits.

Huntamer v. Cée, (Supreme Court, Washing-

ton) 40 Wash. 2d 767, 246 P. 2d 489 (oath -
—elected officials) ; ;

Fitzgerald v. City of Philadelphia (Buprene

Court, Pa.) 376 Pa. 379, 102 A. 2d 887 (oath
——dismissal of staff nurse in city hospital) ; :

~~ Pickus v. Board of Education, of the City of

Chicago (Supreme Court, Tilinois), 9 Ill. 2d
599, 138 NE 2d 532 Socal of
teacher) ; :

Communist Party v. Peek, 20 Cal. 2d 536, 127.
P. 2d 889 (denial of participation in primary —
election to party advocating or nae
forcible overthrow) ;

Steinmetz v. Board, of Education, 44 Cal. 2d

- 816, 285 P. 2d 617, cert. den., 351 U.S. 915 ~

(dismissal of state college professor for fail-
ure to answer before .Board re subversive
affiliations) ; | |
Board of Education v. Cooper, (District Court
of Appeal, California) 136 Cal. App. -2d 513,
289 P. 2d, 80 (dismissal of teacher=failure
to reply as to ‘‘present personal advocacy’’) ;

26 . aia o

, Appeal of Albert iiss Court, Pa) 372
“Pa, 13, 92 A. 2d 663. (dismissal of teacher
- involved in advocacy and subversion) ;' -

' Milasinovich v, Serbian Progressive Club (Su--

preme Court, Pa.), 369 Pa. 26, 84 A. 2d 571
(corporate charter revoked for advocacy of

_ overthrow of government) ; F

Davis v. University of Kansas,. 129 F. Supp.
716, 718 (dismissal of professor for failure
to answer as to subversive affiliation and
activity) ; “s

In re Anastaplo, supra, appeal dis. for want of
a substantial federal question, supra (denial
of admission to baz applicant who refused
to answer as to affiliations and stated belief
in forcible overthrow) ; ce

Cf. Konigsberg v. State Bar of California, 354 .

USS. ...., at... 1 L.Ed. 2d 810 at 824-825
where it was expressly determined that the
bar applicant not only did not and had not
advocated violent overthrow but had testified

under oath to and previously stated dis- -

avowal of and active opposition to advocacy
of force and _violence.),

The above cases, where advocacy of forcible over-
throw and failure to give duly constituted adminis-
trative authority information as to same allowed re-

vocation of benefits, constitute a large body of state .
authority that even more amply justifies. reasonable

refusal of a benefit for which the applicant. must
affirmatively qualify as part of a civil administrative
“9 a = /

process subject to judicial t review. St. In n re Anastaplo,

supra. Under California law, the ‘burden of prpof for

qualificatiofi fdr a tax exemption is on the taxpayer.

“Chesney v. Byram, 15-Cal. 2d 460, 101 |. 2d 1106
(veterans” exemption.)

Combined with the: sanction of the restriction and .
‘oath form at bar as a permissible speech regulation
by this Court in the Dennis, Douds, Garner, Gerende
and Adler cases, which also fully answer other con-
tentions as to due process, equal protection, privileges
and immunities, and bill of attainder which are raised
but not briefed by appellants, the authorities lend
strong support to our contention that no- substantial
federal . question is raised by appellants. The only
other question, that, of asserted federal supersession .
by virtue of the laws providing penal sanctions for
sedition, we assert to be likewisée insubstantial’ since,
as the California Supreme Court observed, there _
would be no supersession of a civil regulation control-
ling the. subjects of state taxation, where the federal
government, has obviously not entered, .much less
oceupied the field, nor have the decisions of this Court
‘upholding state civil loyalty regulations been deemed
affected, in more recent opinions of this Court, by the
decision of Commonwealth of Pennsylvania v.' Nel-
son, 350 U.S. 497. See Slochower v. Board of ‘Edu-
cation, 350 U.8. 551. -: wen) thee a,

ene

Since all federal questiong have been resolved in
precedent or in principle by this Court and since
appellants have thus not complied with California. .
_ law as to qualification for the subject tax exemptions,
we ‘respectfully: ask that the motion to amis the °
appeals in these causes be granted.
- Dated, San Francisco, California, ::
_. October 16, 1957.
ms Respectfully submitted,

. Dion R. Hot,

. City Attorney of the City and County of San Ditton:
“State of California,

a | Attorney for A ppellees.
Francis W. CoLiins,.
District Attorney of the sted of Contra i deacaes
. State of California,

Grorce W. McCuvre, ;
Deputy District Attorney of the omer of Contra Costa,
. State of California, “a a
Rosert M. DEsky, * i
Deputy City Attorney of the City and County of San Francisco,
State of California;

Of Counsel.

CN.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0094%3A4. Public record. Not legal advice.