Brief for Respondents — Nelson v. County of Los Angeles

Ullive-oupiene Wurl U.S,

F441.

DEC 24 1959

ILE COPY

| IN THE

Supreme Court of the United §

JAMES R. BROWNING, Clerk

October Tefm, 1959

No. 152

Thomas W. NELSON, |

| ae Petitioner,

ati vs.

County oF Los ANGELEs, ef al.,

. . » Respondents,

ARTHUR GLOBE,

2 etitioner,

VS. a

County oF Los ANGELES, et al.,

Respondents, :

.

' On Writ of Certiorari to the District Court of Appeal of the .

State of Califoinia, Second -Appellate District,

Division One.

BRIEF FOR RESPONDENTS.

.

HAROLD Wo KENNEDY,

County Cotsei,

WM. EO LAMOREAUX,

etesistant County Counsel,

; and

RONALD & SCHNEIDER,

Deputy Couny Counsel,

Sy HAROLD W. KENNEDY,

County Counsel,

110 Hall of Records,

Los Angeles 12, Calitorma,

eIttorneys tor Respondents.

Parker & Son, Inc., Law Printers, Los Angeles. Phone MA. 6-9171.

vis 2 wee oe :

= ~ SUBJECT INDEX

\ : .

pe PAGE

Citations to OPH WED IW es snvvonscnsesnnsonesanerinetoonetevennneeed ; aphesosbiies ar

Gonstivutional, wink: Sa charter provisions: and regulations

involved DP ETL EEL. SUED EO TATE ETE I TONE ase 2

: gf Ap. . , >

Questions presented vee cdalslisiahbiedaianderbmsaannince ee a eo é .

Statement of the an. CREO hd Re RIE A Al eM DEC 4

1. Nelson’ s eae ment record and discharge procedure... 4

oa Globe’ s Gpployment record and discharge procedure.......... 8

x i Picceellaes in the courts below......,...... ea a 9

SOURIS GT. GIN cc cecrscstntorremncneremseercinieenl cei iraeaanents of

RII soc cicscaore daretsenneciaeatcon se EEO a EOIN 14

Point 1. The discharge of public employees for insubordina-

tion resulting from ‘refusal tp answer questions before a

Congressional Committee under the claim of the First and

Fifth Amendment privilege’ does not viclate due process of .

SURAT sarmstecveoienetoumigcbanrising sjoidvensdlieippiaddytsn icodnesieaipnaiiaieenemoeions res 14

Due process of law does not prohibit the discharge of pub-

lic employees who, refuse to answer questions under the

MU OE III sisi. sessed nicotene Ae Soha SEEN NRGERE Mere 14

~ Slochower vy. Board of Education, 350 U. S. 551, does not

prohibit a discharge based*on refusals to answer before a

Congressional! Committee sc cceniaitapasanbiastes Sitshakaedaenababeviaeare: 18

Point Il. The discharge procedure accorded, Nelson met all

the requirements of due. Process ete 20

Point III. Due process does ‘not require that temporary pub-

lic: employees must be afforded the same discharge hearing

that is afforded public employees\with Ma ER eer 24

.

-

°* PAGE

Point IV. The questions asked of Nelson and Globe by the

Committee were pertinent to the’ subject matter of the in-

WON: sictipceccnnescesceneiienin anes SS iaedastasanscéeapipmekcnaaiiauasaiabrs pi 26

4

Point V. Petitioners did not have the right to assert the

_ protection of the First Amendment to forestall pertinent

inquiry by the Sub-Committee as to the petitioners’ mem-

bership in the @ommunist Party............ "ROEDER RUAN Jem 31

Point VI. The California statute does not operate as a bar .

or prohibit the exercise of constitutional privileges nor was

it the purpose of the statute to coerce testimony. before the

Federal Committee: ..ccccccccccsssesseeee: at ie Altern Aenea 32

Point VIT.. The California statute does not act to abridge a °

privilege or immunity protected by the Fourteenth Amend- _

ease necuisiasines De aannseenbuanienesh Ielice ceuinin ART OER IRE tet — ,

‘ : : a " ,

ne a csieiicllcdicaensbbansdteheicaisidaioaanisn dia dill leiiaistveunanrsiae ete

a

iil.

TABLE OF AUTHORITIES CITED.

\ * *_ CASES ; _ PAGE

Bailey v. Richardson, 182 F.2d 46, aff'd 341 U. S. 918........24, 27

sarenblatt_v. United States, 300 UL S. (109... £3.26, 27, sid Se, 33

liarsky v. Board of Regents, 7U. S. Smee Sonus ci: ae

Heilan v. Board of Education, 337 U. 5. a. mealaas 11, 15, 22°

Hoard of Education t. Mass, 47 C al. 2d 494... OS aeaaeh ae ‘10

Friedman. v. Schwelle ‘nbach, 159 BF. 2d Beek xi nacctcn tceaeeastoin 24

General ‘T alking Pictures Corp. y. Western Electric Co.. 304

Th tl, Beteeaths tesees SON PR Kod et Ee GE TRO 4

uatos: et al. v. Regents of University of California, 293

Int. Com. Comm. v-. Logisville & Nashville: R.R., 227 U.S. 88%... 22

Irvine v. California, 347° ou. S: 128... ees eae 4

Knapp v. Schweitzer, 7 U. $i... bie ld rabthe ee 33, 34, 36 |

Konigsherg v. Gtate Bar, 353 U.S. 252. ..-.-...-cececseeresccnccsencnerney 16.

_ Ferner vy. Casey, 387 Us S. 468... previvetattte 1 TS

McAuliffe v. New Bedford, 183 “Mass. 216............: Tae en 24

Motes v.-United States, 178 UL S. 4382... eee cence terse: 22

Oliver, In re,°333 U.S. 257. :seccs.scconeeeseennseee iicacnncaeesaces |

"Palko v. Connecticut, 302 U.S. 319:...c ccc AEmsle Donon

OE ee Ee.

Shields. v. Utah Idaho R. Co. 05 VU. S. 77". eeieenicernicn OE CY

“Slaughterhouse Cases, 16 “Wall. 36 Fae a RE EC Ce 35

Slochower v. Board of Edueation,, 350 U. S. 334... eames

St a asabaaiyaeaanionte ewe ee 20, 21, 23, 24, 38

Steinmetz y. Cal. State Board ot Education, 44 Cal. 2d 816, cert.

den, 351 Us. S. DUS.....nceccrorererssteeinesesene: 1 cpcaeiabeninionian pclaientacrinsinns . 14.

United States v. Cruikshank, 92°U. Se S42... esseecneteneetneeeetenesnees a:

Watkins v. United States, 354 U.S. 178...0...5.10, 26, I, 28, 30

Wieman v. Updegraii, I Oa, Re hie nracscearncunrcationteneecinonaienie 38

W ilson v. Cook, 327 % a Miia comeuiaiiamiedennnnaacnenenein 35

iv.

Rues — . . PAGE

Revised Rules of the United States Seance Court, Rule 23/1)

| Fate ese cetecntnescsenenneeseneecs ene soteeestescaseneescsteneneensestnennensteesenseseosterse 4 i

Rules for Los Angeles County Civil Service, Rule 19.07.03, 24 |

Rules for Los ci County Civil Service, Rule 19.02........... 3, 2°

STATUTES

California Constitution, Art. XX, See, 19....ccccsseeenetened7, 25

f Government Code, Sec. 1028 .......c:se:scesceceseeee Ricaaisesabensstciercuaons 17, 25

Government .Code, Sec. 1028.1.......:....4, 5, 7, 9, aS, at, Ge ‘27, 39

Government ie te O.. 5, 28

Los Angeles County Charter, Art. IX, Sec. Sh aenrevencseeeeree senna 2, 24:

United States Code, Title 2,.Set. 192.....ccccccccsscsessseclecssssssseesessssees 27

United States Constitution, First Amendment....6, 9, 10, 13, 31, 32

United States Constitution, Fifth Amendment.....................2... iene

Baan Sty ne ie toe eer em 6, 9, 10, 13, 18, 20, 31, 32, 33, 35

United States Constitution, fourteenth Amendment....34, 35, 36, 38

“@

IN THE

Supreme Court of the United States

8 October Term, 1959

No. 152

THomas W. NEL60ON,

Petitioner,

Of.

County or Los ANGELES, et al.,-

7 | Respondents,

ARTHUR GLOBE,

' se US.

County of Los ANGELES, et al., ,

Respondents,

. On Writ of Certiorari to the District Court of Appeal of the

State of California, Second Appellate District,

Division One.

BRIEF FOR RESPONDENTS.

Citations to Opinions Below.

The Superior Court of the State of California in and.

for the County ot Los Angeles, in which court Nelson

and Globe originated, issued no formal opinion. How-

ever its findings and judgment in each case appears at

R. 123-126 (Nelson), and R. 179- 183 (Globe). The epin-

ions of the District Court of Appeal of the State of Cali-’

fornia in the Nelson ind Globe cases respectively [R.

——

—2— .,

133, 185] are reported at 163 Cal. App. 2d 607, 329 P.

2d_978 and 163 Cal. App. 2d 393, 329 BP. 2d O71. The

denial of hearing by the Supreme Court ot California, .

cases respectively [Ro 159, 214] are reported at 163 Cal,

App. 2d 607 at 614, and 163 Cal. App. 2d 595 at 606.

Constitutional, Statutory and Charter Provisions and

Regulations Involved. ~

In addition.to the Constitutional and> Statutory” pro-

visions set forth in the Brief for Petitioners, certain pro-~

-visions of the Charter of the County of Los Angeles,

State -or California, and Civil Service Rules for the

County of Los Angeles, State of California: are also ap-

plicable and are here set forth in relevant part.

Charter of the County of Los Angeles, State ef Cali-

fornia: 7 : ts

Section 34 of Article IX: | |

“Sec. 34. The Commission shall prescribe. antend

and enforce rules for the classified serviee, which

shall have the force and eftect of law; .

The rules shall provide: .

(7) For a period of probation not to’ exceed six

months before appointment or promotion is made

complete, during which period a probationer may be

discharged or reduced sith the consent of the Com--

>

mission,

( 9) For temporary employinent ot pers Ms on: the

eligible list. es

with three judges dissenting, in the Velson and Globe |

tere {

——

_ Civil Service Rules ‘for the — of Los Angeles,

State of California: _

“19.07. Probationary Period Following First ap

' pointment, ‘

An employee who has-not yet completed his first

probationary period’ may be discharged or reduced

in accordance with Rule 19.09 by: the appointing

power by. written notice, served on the employee and

copy filed with the Commission, specifying _ the

grounds and the particular facts on which the dis-

charge or reduction is based. Such an employee shall

‘2 entitled to answer, explain, or. deny the charges in

writing within ten business days but shall not be en- -

titled to a hearing, except in case of fraud or of dis-

crimination because of political or religious opinions,

racial extraction, or organized labor membership.

19.09. Consent of Commission, |

on

If the Commission has consented prior to the fil-

ing of an answer by the employee and such answer:

alleges fraud; or discrimination as above stated, and

requests a hearing, the Commission shall immediately

set aside its consent. The hearing shall.be limited to

the question of fraud or discrimination. After such

hearing the Commission may consent to the discharge

or may order such employee reinstated, and unless

such order otherwise provides, it shall be effective

as of the date of the discharge or reduction.

No consent.need be secured to the discharge or

_reduction of a temporary or recurrent employee.”

* tion? we ek are

per

Questions Presented.

Two questions are presented’ by the Nelson and Globe

cases: : |

(1) Whether the discharge hearing afforded Nelson

was in accordance with the due process ,guarantee of the

Fourteenth Amendment to the United States Constitu-

-—— (2)-Whether a temporary county employee is entitled

to a hearing regarding his discharge for a violation of

Section 1028.1 of the Government, Code: of the State OL

California."

Statement a the Cases..

1. Nelson’s Employment Record and Discharge Procedure.

Nelson applied for a position with the: County of ‘tn ;

Angeles on March 17, 1952 [R. 56]. He signed the State

and County loyalty oaths [R. 108; 114]. and on April 1,

1952. was hired by the County of Los Angeles as a

social worker with the Department of Charities [R. 107-

. 113).

On June 16, .1953, Nelson became a permanent county

employee in the position of medical social worker, a posi-

tion he held until his discharge on May 2, 1956 [R..107-

113, Find. of Super. Ct., R. 123,- 124].

The Board of Supervisors of the County of Los An-

-geles on February 19, 1952 adopted an order concerning’

. /

"Petitioner's Brief asserts an alleged violati#n of the Federal

supremacy principle of Article V1 of the Federal Constitution as

one of the Questions Presented (Pet. Br. p. 4). This point was not -

ratsed in the Petition for Certiorari (Pét. for Hearing, p. 3).and it

would seem inappropriate to raise the question at this time. Revised

Rules of- the Supreme Court 23¢1)(¢): General Talking Pictures 2

Corp. v Western Electric Co., 304 U. S..175, 177-1783: [reine v.

California, 347 U.S. 128, 129. | ;

a ee

the duty.

t a willis

‘personal appearances of certain county employees before

the “United . States Congressional, House Un-American

Activities. Committee. That order made it the duty of |

every county employee who might be subpoenaed by that —

Committee to appear before .it and to answer certain.

specifically designated questions relating to the Commu-

nist conspiracy. One of these design: ated questi ms related

to membership of the employee in the Communist Party

[Ik. 101]. Refusal to answer these specific questions was

to be considered as’ insubordination, constituting grounds

for discharge [R. 101-102]. This’ Board order was short-

ly thereafter superseded by, but is: in substance the same

as, Section 1028.1 of the Government Code of the State

of California. For example, Section 1028.1(d) provides -

that county employees have the duty to answer questions

relating to “present knowing membership of such em;

ployee in the Gommunist Party or as to, past knowing

membership in the Communist Party.at any time since Oc-

tober 3,°1945." * |

‘The county eee adopted the procedure of per-

‘sonally serving a copy of the Board’s order of February

“19,1952, on ‘every county, employee subpoenaed . by the

‘Committee on Un- Amierican* Activities of the House of

Representatives in order to inform the employee of his

duty to testify before the Committee as to this type of

question if called before it, and to inform him of his

liability to discharge in the event of failure to discharge

‘

Pursuant to this practice, on April 4, 1956, Nelson

"was, personally served with.a copy of the Board’s order of

February 19, 1952 [R. 97] and on April 20, 1956 pur-,

suant to a subpoena and accompanied by cotnsel, Nelson

‘appeared, and_ testified before the Subcommittee of the

House Committee [R. 21- 107, 114). After answering a

few preliminary questions concerning his educational

backgréund and previous employment [R. 21-24]. Nelson _

‘objected to the right of the Subcommittce to. ask ques-

tions concerning the reasons why he was discharged from

i previous government employment on the grounds that

such questions were outside the Committee's jurisdiction

[R. 25, 28, 29]. Thereafter, on the basis of the First

and Fifth Amendments of the United States Consti tution,

* Nelson specifically declined to answer, among others, the

.

following questions:

“Were you a member of the Communist Party at

any time between 1947 and 1949? That was the pe-

riod you were in Japan. ” TR. 20, Find. ot Super. Ct.

R. (124) :

“Have you at any time been na member of the Com-

“munist Party?” [R. 31, Find. of Super. Ct. , R. 124].

“Were you a member of the Communist Party

between 1951 and ’52 when you served as an officer

of* the State parole systém’ for the State of Cali-

fornia?” [R. 36, Find. of Super. Ct.. R. 1241.

“Are you a meinber of the Communist Party to-

day.” [R. 38, Find. of Supss. Ct., R. 124].

On May 2, 1956, Nelson. was notified | in w riting of his

discharge from county services because of his refusak to

answer these questions before the Committee on) Un-

American Activities [R. 114 117. Find. of Super. Ct., R

124}. This notification advised Nelson that he could re-

quest a hearing before the Civil Sérvice C mmission on the

charges placed ‘against him. Thereafter, on June 11,1956.

at Nelson's request, and ‘as required by law, the Civil

Service Comniission of the County of Los Angeles held

——

. —7—

a hedring on Nelson’s discharge. Nelson attended the

hearing in person, accompanied by his counsel [R. 1].

The County of: Los Angeles, by way of stipulation, of-

fered. Nelson's employment record [R., 2-3], evidence of

Nelson's receipt of a copy of’ the order of the Board of

Supervisors relative to his duty as a county employee to

answer questions before the House Committee on Un-_

American Activities [R. 3] and evidence. of his appear-

ance under subpoena before the House Committee [R.

3]. In- addition, the county introduced, by stipulation,

the transcript of Nelson's testimony on April 20, 1956,

before. the House Committee [R. 4-5 ]. and the fact of

Nelson's discharge and request for hearing [R. 5]. The

County then rested.

On Nelson’s behalf, his. counsel introduced, by stipula-

tion, Nelson’ s personnel record and the introductory state-

ment made at the opening of the House Committee hear-

ings. [R.- 6-7]. Nelson indicated through his counsel that

che did not care to offer any evidence or testify before the

Commission. He merely wished to.have his counsel state

his position in regard to his discharge [R. 7]. In response

toethe hearing chairman's question “Now, you just want

<to argue?” Nelson’s counsel stated: “That is all.” [R. 7].

At no time during .the hearing did Nelson offer to take

the stand in his own behalf and he ottered no testimony

and no witnesses [R. 5-7].

Thereafter, the Civil Seryice Commission, on the basis

' of the evidence before it, concluded that Nelson was guilty

of insubordination and guilty of violating: Section 1028.1

of the Government Code‘of the state of California, and

that the facts and reasons justified: Nelson’s discharge

[R. 103-106]:

4

7 m ; eo 8

2. Globe's Employment Record and Discharge Procedure. .

On March 28, 1955, Globe was employed as a non;

eligible, temporary employee jn the’ position. of | soci:

worker in the County of Los Angeles Department ot

Charities. [R. 166, 172, Find. of Super. Ct. R. 180]. In

that position, Globe beeame a temporary eligible employee

on May 1, 1955 [R. 172, Find: of Super Ct.. R. 180], and

continued in county employment until his. discharge on Mav =

2: 1956 [R. 166, 172, Find. of Super.°Ct.. R.. 180]. In

1955, Globe took the State loyalty oath [R. 167, 170].

Globe became eligible for appointment as a permaneiit

county employee on March 24, 1956 [R. 167,170]. How--

ever at no. time. did he attain permanent status.

Pursuant to subpoena served on him on April 6, 1956

‘TR. 106, 172, Find. of Super. Ct. 180], Globe. accompa:

nied by his counsel appeared and testified ori April 20.

1956,:at a hearing of a subcommittee of the Committcée

on Un-American Activities’ of the House of RKepresenta-

tives [R: 166, 172, Find. of Super. Ct..Re180].° After an- .

swering a few preliminary questions, regarding his edu-

cational experience [R. 100].-Globe objected to, but. fi-

nally, answered, questions directed to his past employment

srecord [R. 160-162, 173]. However, Globe refused to an-

swer other questions relating to his personal knowledge of

the existence of, and personal membership in, an organi-

zation at the University.of Southern California know as

the John Reid Club of the Communist, Party [R. 162-

“It should be moted that the letter sent to Globe notifying him

of his discharge, quoted verbatim in the record PR. 177-179], in-°

dicates that Globe, prior to his appearance before the Stibcommittee,

in accordance with established County poligy, was personally sérved

with a copy of the Board order of February 19, 1952, which sets

torth: the «duty of county emplovees to testify. before the House,

Un-American Activities Committee en the liability to discharge -

in the event of failure to perform theirduty [R. 101-102]. :.

a

163, 173-174]. He also refused to answer the direct ques-

tion: “Are you a member of the Communist Party. now?”

[R. 104.175, Find. of Super. €t.. R. 180]. His-refusals

to answer these questions were baséd on the First and

Fifth Amendments to the United States °C onstitution [R.

162 -164, 173-175, Find. of Super. Ct., R. 120}.

On May 2, 1956, Globe was notified in writing that he

was discharged on the grounds that by refusing to an-

swer the question relating to his present membership in

the C mamunist Party he had been guilty of-insubordina-

tion and of. violation of Section 1028.1 of the. Gov ern-

ment Code of the State of California [R. 177- 179: see,

Find. of Super. Ct., R. 180]. Upon his: discharge meee

requested. and was granted a hearing by the County: «

_ Los Angeles Civil Service Commission concerning his i

charge as is provided by law [R. 167, 176, Find. of Super.

Ct., R. 181]. Globe appeared before the Commission on

May 29, 1936 and was denied a discharge hearing [R.

. 167, 176, Find. of Super. Ct.,.R. 181] on the: ground

that ‘he was a temporary employee, and ‘as such. not en-

4 titled‘to. such a hearing [See, R. 176]...

3. Proceedings in the Courts Below.

Nelson’ and Globe each filed a petition for a writ of

mandate in the ‘Superior Court of California, seeking re-

instatement |R. 106, 165]. The Superior Court found that .

Ndlson had been discharged in the manner prescribed by |

lay| and that he had been given a full and fair. héaring

on his discharge during the course of which he was siven:

the lopportunity to explain his reasons for his refusal to

‘testify before the Subcommittee ‘of the House Commit-

tee A %,.125]. Nelson's discharge was upheld and the Su-

| Court. denied the writ ee 126 Ok As to G ‘dlobe, ‘the .°

—10— ; . .

temporary employee, Globe could not be discharged fron

his employment without’ being afforded a full hearing as

to the sufficiency of his reasons for invoking ‘the First

and Fifth Amendments to the United States Constitu-

tion Avhile testifying before the Sub-committee of the-.

House Committee [R. 181]. The writ of mandate was

the Te fore granted as to Globe [R. 183].

Both decisions were appealed to the District Court of

Appeal [R. 127, 183]. The Court of Appeal upheld the

discharge procedures followed inf both cases, affirming

Nelson's discharge [R. 133-140] and reversing: the Su-

pertor Court’s judgment as to Globe [R. 187-198]. Thé

Court determined that the purpose of Nelson's dis-

charge hearing was to afford him an opportunity. to ex-

plain his reasons far exercising the privilege against selt-

incrimination [R. 136-138], thus allowing the county to

decide at that point whether ‘the circumstances were such

as to warrant dismissal ][R. 137]. |

Aftes- reviewing the c\ ‘idence and the applicable law,

the Court of Appeal concluded that Nelson, as a perma-

nent county employee, had been afforded the o ppertunity

for a full hearing on his discharge whic¢h due process re-

quires under the case of Slochower v7. \Board of [dica-

cation, 350.U. S. 551, aud Beard of Education vw. Mass.,

47 Cal. 2d 494 ik 134-138]. Globe, on the other -hand,

heing only a temporary county employee, was held not to

he entitled, by law, ‘to a hearing [R. 192-197].

The Court of Appeal considered and . rejected argu-

ments by Nelson and Globe that the authorizing resolu-

tion of the congressional committee was too broad and

vagne in view ‘of this Court's decision in i ‘atkins o.

United States, 354 U.S. 178. Watkins was held to jhe

factually dissimilar [R. 139, 198],

; . a

é a

The Supreme Court of California, by divided ‘court

and without opinion, denied petitions by Nelson and Globe

requesting a hearing [R. 159, 214].

Summary of Argument.

Petitioners would concede, and we agree, that the State

has a legitimate and real interest in inquiring into the ‘fit-

ness of its employees for continued public emplofment.

This permissible area of- inquiry extends to questions di-

rected at the employee's membership in the Communist

Party. |

Public employees, much like Caesar’s wife, should and

must act above suspicion. Correspondingly, when during

the course of inquiry they are faced with pertinent

questions relative to their fitness to public employment

they have the obligation to be candid and cooperative. (Cf.

Beilan v. Board of Education; 357 U.S. 399-at p. 403.)

If the duties of candor and cooperation are présent as an

underlying basis of the public employer-employee - rela- -

tionship, they are present a fortiort where the State mikes

these duties specific by statute. They have this obliga-

tion and duty even though the answers may, under some

circumstances, amount to self-incrimination.

We submit that the area of ‘candor and cooperation

should not be limited to situations where the questions are

posed in the first/instance by the immediate governmental

employer, The duties of candor and .of ‘cooperativeness’

should. property! extend to areas where pertinent inquiry

is made by other governmental entities such as the Federal

Government. Especially, this is so, where as in the instant

cases, the scope of the federal inquiry was announced as

being directed at Communist Party activities of individuals

in the field of government [R. 19].

.

pa ee

Petitioners, as public employees; could not be + forced

to give answers which may tend to incriminate them but

they could validly be required to choose between the exer-

cise of the privilege against self-incrimination and con-

tinued public employment. Having elected to exercise the

privilege, petitioners cannot now say that they were de-

nied it$ protection.

As‘ refusal to answer certain pertinent questions is de-

fined by statute as ‘insubordination, the public ‘employer

had the duty in the face of the course of conduct taken

by petitioners to discharge them “in the manner provided

by law.” |

Petitioner Nelson, subsequent to his discha irge for statu-

tory insubordination and violation, of the Calitornia: stat-

ute, was afforded a full hearing on his discharge which:

due process. demands. That hearing, held at the réquest

ot Nelson, was for the purpose of giving Nelson an op-

portunity to explain the reason which he “has refused to’

testify before the Federal Committee. The scope of that

hearing admittedly was limited but not through any ac-

tions of the employer. Nelson, by his refusal to testify

or offer any evidence concerning his reasons for his. re-

fusal to testify before the House Sub-committee or mat-

ters germane thereto, voluntarily limited the scope of the

inquiry.

California courts in interpreting the California statute

under which Nelson was discharged have indicated that’

the public employer at the hearing has a discretion to

apyrors the discharge or. reinstate the employee. By his

own acts. Nelson elimin: ited the exercis. of that discretion,

requiring the finding by his employer he was insults irdinate

and in violation of the California statute.

Globe was not aftorded a‘ discharge hearing. because

none was provided by law. As a temporary employee, he

i 3

could be summarily discharged. We submit that the State

has broad, powers in the discharge of its employees and

that there ‘is no arbitrary or unreasonable distinction

when a discharge hearing is given permanent employees

with tenure while-denying such a hearing to temporary —

employees. Such employees have no vested right to con-

tinue in public employment. Globe, by his summary <dis-

charge. was therefore not divested of any right. Even

conceding that a temporary employee may net be dis-

charged for arbitrary or discriminatory grounds still the

point is that Globe was discharged for the violation of his

statutory duty to cooperate by answering pertinent in-

quiries made by a duly authorized Federal Committee.. It

was the fact that he did not answer, rather than the fact

that he exercised a Federal privilege that triggered his’

discharge. ; | 2 |

It*has been conclusively established by this Court that

the Federal Committee, before whom both Nelson and

Globe were stimmoned, is Auly authorized to propound the

particular types of questions which petitioners refused

to answer [| Barenblatt 7, United States, 360 U. S. 109].

Petitioners had the right under the Fifth Amendment to

the United States Constitution to refuse.to answer these

pertinent inquiries, but, on balance, did not have the right

to refuse to answer on the basis of a First Amendment

privilege, |

_ There is no evidence in the record that the California

statute operates or Was used as’an instrument of coer-

cion in an effort to curtail the exercise of any constitu-

tional privilege by petitioners. Nor can it be said that

the California statute abridges any privilege or immunity

of citizens of the United States. If petitioners discharge ,

was not repugnant to the due process clause of the

United States Constitution, it did not violate fhe privilege

and immunities clause. _ :

—_]4—

’ ARGUMENT.

POINT I.

The Discharge. of Public Employees for Insubordina-.

tion Resulting From Refusal to Answer Questions

Before a Congressional Committee Under the

Claim of the First and Fifth Amendment Privilege

Does Not Violate Due Process of Law. ~

Due Process of Law Does Not Prohibit the Discharge of

Public Employees Who Refuse to Answer Questions

Under the Claim of/Privilege.

_ Petitioners contefid that their discharge pursuant. to

statute, based on their refusal on constitutional grounds

to answer questions asked by-a congressional committee

is arbitrary and unreasonable. We submit that this argu-

ment should be rejected by this Court.

It is settled law that a public employer has the right

to make certain inquiries of his employees regarding their

fitness for continued employment. In Stetmmets ov. Cal.

State Board of Education, 44 Cal. 2d: 816, cert. den.

351 U.S. 915, the California. Supreme Court in’ con-

struing the self-same statute under consideration ‘in the *—

instant cases stated at page &23.

“The statute under which petitioner was dismissed

is not rendered invalid by the tact that it) requires

an employee to answer questions as to his :member-

ship in the Communist Party without regard to his

knowledge of the nature of the party. Petitioner's

discharge was not because of membership in the pro-

scribed organization but because of his refusal to an-

swer questions as to whether or not he held member-

ship in the Communist Party. A) governmental body

may, of course, make reasonable inquiries into miat-

ters pertaining to the fitness of its employees. Loy-

9 ee cere tee

- <n

a7

‘alty on the ‘part of those in public employment is im-

“portant to orderly and dependable government and is,

therefore, relevant to fitness for such. employment.

(Pockman v. Leonard, 39 Cal. 2d 676, 687 [249 P.

2d. 267 }.) An employee's associates, as well as his

conduct, are factors which may be considered by a

state agency in determining his loyalty, and informa-

tion on that subject may properly be elicited from

him. (4dler v. Board of Education, 342 U. S. 485,

492-493 [72 S. Ct. 380, 96 L. Ed. 517, 27 A. L. R.

472]: Pockman v. Leonard, 39 Cal. 2d 676, O85-

687 [249 P. 2d 267].) In this c mnection, it has been

held that a public employer may constitutionally re-

quire its employees to disclose “any past or present

membership in the Communist Party. (Garner v.

Board of Public Works, 341 U.S. 716, 720 [71 S.

“Ct. 009, 95 L. Ed. 1317]-)” (Cf. Beilan v. Board of

Public Education, 357 U. S. 399, and Lerner 7.

Casey, 357 U. S. 468.) |

Petitioners, as public employees have: certain obliga-

tions as ‘well as rights. The right to be selected and ap-

pointed for public. employment and in due course, the

right of tenure in that employment imply concurrent ob-

ligations of good citizenship, the performance of em-

ploymental duties, and, where required by statute or other-

wise, cooperation with wernmental bodies making pre per

inquiries into. matters affecting public employme nt,

whether these governmental bodies be local, state or ted- .

- eral. (Cf. Beilan v. Board .of ‘Education, 357 U.S. 399 at

p. 405. In the instant cases the State has been tit to tg

ate and clarify the extent of these obligations through tie

‘use of Section 1028.1 of the Government ‘Code. This was

not a duty in the abstract—it is an absolute duty o1 co-

i

=

16 |

operation directly imposed by the State on all public ny ___>

— —

ployees.

When petitioners obstructed the course of legitimat, -

governmental inquiry they destroyed the facade of conti-

dence which their employer. and the public had ereeted’ .

around them. Petitioners directly and knowingly refused

to embark on a course of conduct which their em-

ployer had every right to expect them to follow. In fail-

ing to stay within certain circumscribed bounds of ¢on-

duct, they were insubordinate as defined .in the statute.

It was then the duty ‘of their employer to consider

whether by their insubordinate refusal to testify their fit-

ness for further public employment had become impaired.

It is at this point that attention must be focused. Peti-

tioners were not ‘dismissed from public employment. be-

cause they Had exercised a legal right to remain sflent in

the face of legitimate inquiry. They were dismissed he-

cause their insubordinate conduct had indicated a lack of

those qualities of candor and cv yperation that the publte

and their public employer had every right to expect from

them as public employees. Even more than the non-per-

formance of an obligation to explain one’s conduct to one’s

superiors in employment, the refusal to perform. a. statu-

tory duty is a means of measuring lack of fitness for em-

ployment. This not because of any unfavorable inference

_ot disloyalty or misconduct, inferences firmly rejected by

the Court below [R. 139, 193 and see. Keitysberg @.

State Bar, 353 U. 8. 252 at p. 270]. but. because the

manifested unwillingness tO. answer proper questions is

in itelf the -disqualitying fact. — hate

Public employment is a privilege which the State can

grant On such terms as it sees fit to impose. When peti-

tioners were first employed, they knew or should have

?

S mn ee -<s0m

—known that as. part of their duties as public. employees

they would be required if the occasion arose, to respond

to a pertinent inquiry by a Congressional .Committee.

When summoned betore the Committee they had’ a choice

between continued public employment and the exercise of

the constitutional privilege against self-incrimination.

Petitioners argue that their discharge had no relation

‘to the determination of thefr fitness for employment be--

cause the applicable California loyalty procedure had al-

ready been applied to cach petitioner,

Obviously, the State does not consider compliance with

the State or county loyalty programs sufficient protection

for the public. Past pledges or oaths-of | walty are not

a sufficient indication of presently held loyalties. The

State’s manifest responsibility to its citizens requires

that public employees stand up and be ceunted. In addi-

tion, public employees have the responsibility. to inaintain

‘continued fitness for employment because the mere tact

of Communist Party mentbership c mstitutes grounds for

dismissal under Section 1028 of the tiovernment Code?

and prohibits the holding of. public employment) under

Article XX, Sc.tion 19 of the Califoraia Constitution.‘

*Section 1028 of the Government Code provides :

“It shall be sufficient cause for the dismissal of any pub lic

emplevee when such public employee alvocates or is know-

Inigly a member of the Communist Party or Of an organization

which during the time of his membership he knows advocates

overthrow of the Government of the United States or of any

state by force or violence.”

‘Article NN, Section’ 19 of the California Constitution, so far

as material, provides :

“Notwithstanding any othér provision of this Constitution,

ho person gr organization which advocates the overthrow of

the Government of the United States or the state by force or

violence or other unlawful means or who advocates the support

ce

Slochower v. Board of Education, . 350 U. S.°551 Does Not.

Prohibit:a Discharge Based on Refusals tc Answer Be-

_. fore a Congressional Committee.

In ‘their constitutional argunient, petitioners rely on

* Slochawer v7. Board of Education, 330. UC. S. 531 as in-

dicating that a discharge based on events occurring be-

fore a congressional committee is‘in itself arbitrary. and

unconstitutional. Slochower, a. teacher in a public college

‘in New York City refused to testify before the Internal

Securities Subcommittee of the United States » Senate

when asked whether he had been a member of the Com-

munist Party prior to 1941. He invoked the privilege ot

the Fifth Amendment. As a teacher in New York City,

che was subject to Section’ 903 of the New York City

‘Charter which provided that any city emplovee who util .

’

ized the privilege against self-incrimination to aveid an-

swering a question relating to his official conduct should —

thereby have his tenure of office or employment. aute-

matically terminated. Sloch wer was discharged sum-

marily without a hearing under this provision. This Court

held that such a swmmary dismissal violated due process

of law and remanded the case for further) proceedings

not inconsistent with its opinion.

The specific gre mnd for setting aside Slochower’s ‘dis-

missal was the summary character of the discharge under

the New York City Charter provision which made:the act

of claiming the privilege against self-inerimination opera-

tive ipso facto to discharge the employee without a hearing.

of a foreign’ government against the United State. in the

event of hostilities shall: eh ae. fe i

(a) Hold any: office or employment under this “State,

including, but not limited tovthe University aot California, or

with any county, city or county, city, district, political subdivi-

sion. authority, board, bureau, commission or other puiblic

agency of this State; * * *." ° ;

.—19- -

_ As indicated above, the fundamental reason for peti-

tioners’ discharge was the fact of their refusal to testify

and not their grounds for refusing. Their silence, ‘their

secrecy, their evasiveness made them by -their own acts

unfit to hold public employment. (Cf. dissenting opinion

ot Mr. Justice Reed-in Slochower v. Board of Education,

350 U. S. 551 at 561- 562.)

In Lerner v. Casey, 357 U.S. 468, this Court indi-

cated that ‘a teacher could be dismissed for incom-

peteney for refusing to answer questions although the

teacher had invoked the privilege against self-incrimina-

tion-as an explanation for his silence. We submit. that .

a Constitutional distinction should not be drawn /based on

where or to whom the refusal to answer is expressed pro-

vided the inquiry is a pertinent one and made in the

course of legitimate investigation. | )

In Slochower this Court remanded the case for further

proceedings in accordance with its opinion, [f this Court

had wished to’make the point that dismissal from) pub-

lie employment -could never be based‘on a refusal to an-

swer pertinent questions propounded by a congressional

~ committee, the proceedings against Slochower would have

been dismissed. We submit that Slochower does not rez we h

this far. The constitutional validity of discharge from

public employment for refusal to answer legitimate ques-

tions does not and should. not depend on whether the re-

fusal occurred in a local, State or Federal proceeding.

The crux of this problem is pointed out in Mr. Justice

Frankfurter’s concurring opinion in Lerner 7. Casey where.

he states (357 U.S. at p. 410): me,

“The services of two public employees have been

terminated because of ‘their refusals to answer ques-

tions relevant, or not obviously irrelevant, to an in-

| —20=

: 2 .

quiry by their supervisors into their dependability.

When these two employees where ‘discharged, they

were not labeled ‘disloyal.’ They were discharged be-

cause governmental authorities, like other employers,

sought to satisfy themselves of the dependability of

employees in relation to their duties. Accordingly,

they made inquiries that, it-is not contradicted, cquid

in and of themselves be made, These inquiries were

balked. The services of the employees were thereby

terminated.”

We submit that the State as an employer has as much

right to require by ‘statute, under pain of dismissal, that

the public employee answer legitimate inquiries made by |

_ the congressional committee affecting their continued fit-

ness for publig employment as it has-the right to require

that they answer proper and. pertinent inquiries directly

made by their employer. |

POINT II.

The Discharge Procedure Accorded Nelson Met All

the Requirements of Due Process of Law.

Petitioner Nelson argues that assuming that his dis-

charge pursuant to statute was not ‘arbitrary or un-

reasonable still he avas not accorded the hearing up m his

discharge which due process requires. In Slochower, supra,

350 U.S. 351, this Court struck down the summary. dis-

missal of a publi¢ employee pursuant. to.a statute which

operated to discharge eco mstante every employee with

‘tenure-who invoked the Fifth Amendment. The summary

dismissal: violated due process because no consideration

was given to such factors as the subject matter of the

questions, remoteness of the period to which they are di-

rected, justification for the exercise of the privilege

a

ell Saas

Whether the plea “resulted from mistake, inadvertence, or

- legal advice conscientiously given, whether ‘wisely or un-

‘wisely. # i

The hearing given Nelson before the Civil Service

Commissjon was contained within the shape of tthe mold

created by Slocltower. Section 1028.1 limits the scope of

the duty to answer questions to*certain questions involv-

ing only one subject matter. Further, the period to which

such questions were to be directed is the present not the in-

definite past. Thus, two of the factors involved in |

Slochower were eliminated at once from Nelson. Addi-

tionally, petitioner was given every opportunity ‘to justify.

his exercise.of the ptivileze. Accordingly the dictates of «

Slochower were conformed with and petitioner had ex-

actly the full scale hearing required by due process.

Nelson argues that the invocation of his constitutional

rights was the conclusive reason under the State statute,

for his discharge. He ‘asserts that the hearing afforded

him was merely pro forma in that, in any event and no

matter what the weight of, evidence marshalled for his de-

fense, he would have been discharged. Not so. The Court:

below stressed the fact: that the California Supreme Court

does not accept this strict interpretation of the California

statute. The public employer at the hearing has a discre-

tion which may be exercised if the employees’ reasons,

for refusing to comply with his statutory duty to an-

swer are deemed sufficient. As the Court below stated:

“or what purpose would the Supreme Court insist on

a full hearing fo give the employee an opportunity elo

explain, his reasons if the statute requiréd a aang

regardless of his explanation for refusing to answer?

[R. 137-138), We submit that this Court is bound by

this interpretation given the California statute, Beilan.7.

-—22—

Sousa a Public Education, yh S. 9, 404: Barsk*¥ =

Board of Re gents, 347 U.S. 442,

448.

Any contention that Nelson did not know the purpose

‘@of his discharge hearing is not sustained by the facts.

The record clearly indicates that Nelson received .a letter

from his employer notifying him of his discharge on the

grounds of insubordination and of violation of Section

1028.1 of the Government Code [R. 115- 116}. In that let-

ter Nelson was specifically advised that he could request

a hearing on these charges [R.-118]. Nelson cannot now

state that he did not know the purpose of the very hear-

ing which he requested be held. The hearing was. called

for the purpose of giving Nelson an opportunity to ex-

plain his conduct—the reasons why he refused to answer

questions asked of him by a. congressional committee.

It is submitted that at the hearing Nelson received all

the requisites of a “fair trial” which. due process, re-

quires. Such requisites include: reasonable notice of the ’

charges; Jn re Oliver, 333 U. 8. 237: United States 7.

Cruikshank, 92°U. S. 542: the right to a_ hearing:

Shields v. tah Idaho ‘R. Co., 305 U. S..177: Palko ¢.

Connecticut, 302.U. S. 319: an:opportunity to examine,

.the evidence and. to cross-examine witnesses supporting —

the charges, to offer testimony on one’s own behalf. and

‘te be represented . by counsel: In re Oliver, s pra, Motes

‘oa. United States, 178 U.S. 458, Int. Com. hatte e° . Louis,

& Nash. RR. 227 U.S.

~ The record is clear that Nelson at his hearing was at-

forded all the fundamental sateguards necessary to as-!

sure a just and fair consideration of his case. If in fact

the scope of the hearing was circumscribed it was so

bounded by his own actions. As the Court below stated.

“Any argument that the county should have ques-

tioned petitioner about his reasons for invoking the

. \

iy

|

,

in ty

privilege is specious. The record discloses that he

was given every opportunity to explain if he wished

to do so and ‘an opportunity to explain’ does not im-

ply that the county must ‘illicit the information from

_ the employee. Whether his éxplanation comes s through

query of the-employer or the employee's own coun-°

sel would seem immaterial as long.as the employee is

given a full hearing in which he is given an op-

portunity to explain his reasons. The hearing is for -

the purpose of giving him the opportunity to. ex-

pli tin. If he chooses to remain. silent and not do so, ,

he cannot now say he: has been denied due process.

If petitioners hearing was limited in any way, it was

limited by his own voluntary choice to remain si-

lent.” [R. 138]. a

Lastly the implication that the loss of his position in

public employment is & permanent deprivation of his

means of livelihood and is improper under the circum-

stances, is unwarfanted. Tt should be ne ited that the stat-

ute involved in Slochower, supra, unlike the statute in-

volved here, by its very terms provided that city emplovees

would be permanently ‘disqualified from “election or

appointment to any office or employment under the

city or any agency.” The California statute nowhere

goes to this extreme and in actual practice on the local

levelat least discharge from) previous government em-

ployment obviously does not bar further public employ-

ment. aa in point of fact, despite notifying the

County of Los Angeles of: his two previous discharges

from gi ae employ [R. 63] was still able to secure

further pyblic employment.

To intimate that it is improper to impose a. civil pen-

alty for exercise of a constitutional right 1s not war-

.

-*

—24—

ee ;

ranted. Mr. Justice Tomes stated the correct principle -in

his frequently quoted statement in Me. aaIS v. New Bed-.

ford, 155 -Mass. 216:

“The petitioner may have a constitutional right to

talk politics but he has no constitutional right tu he

° e

a policeman.” .

And compare Lerner 7. Casey, 357-U. S. 468, where this

Court sustained the dismissal of a public employee for

failure to Answer “pertinent questions under a claim or

the privilege against selt-incrimination. |

‘POINT III.

Due Process Does Not Require That Temporary Public

Employees Must Be Afforded the Same Discharge

Hearing That Is Afforded Public maeleres With

Tenure.

Petitioner Globe's attempts to. equate his constitutional

arguments with those of Nelson ignore the very: essence

“of the difference between temporary public employees

- and those with tenure under the Los Angeles County

Charter (Sec. 34, Art. IX) and the Rules of the Los An-

geles County Civil Service Commission (Sees. 19.07 and

19.09). | ie

Asa temporary employee.*Globe had none of the vested

tights of permanency and C ud bessummarily discharged.

Due process does not require a hearing where one is not be-

ing deprived or-divested of anything to which he has a

right. (Cf. Bailey 7. Richardson, 182 F.2d 46, aff'd 341

U.S. O18; Friedman v, Sehwellenbach, 139 F, 2d. 22).

Petitioners’ reliance on Slochower. is misplaced since Slo-

chower was a permanent employee and entitled to tenure

under the applicable New York state law. Here Globe.

was only in the status of an applicant for public employ-

—— a ~

. . >

—————— Camper —

a

ment. To argue that a person with such a tenuous hold

on the public rolls has, a vested right to such employment

is to allow privilege and to destory the importance of ten-~

ure, abo . .

ven if a vested right were involved, due process does

not always require a hearing. ( ge Anti-lascist Refugee

Committee v. McGrath, 341 U.S. 123 at p. 162.)

__ Slochower indigates that individuals may not have a

constitur. nal right to public employment. |

“ls state that’a person does not have a constitu-

tional right to government. employment is only to say

that he ieust comply with reasonable. lawful, and mn m-

discriminatory terms Ase down by. the proper .au-

thorities.”” (350 U.S. at p. 555).

This Court has not: yet made the broad assertion at-

tributed ‘to it by Globe that there is no ‘real difference

between permanent and temporary employees with respect

to their methods of discharge. To the contrary we sub-

mit that there is a very real and substantial difference.

Even conceding, arguendo, that Globe may not be

discharged) summarily fer arbitrary or discriminatory

reasons, we have shown above that his discharge was not

afbitrary and that it related to a real interest of the State

in informing itself as to the contintied fitness of its

employees for further public service. Globe’ was discharged

for the failure to perform a specific statutory duty—the

duty to answer legitimate and pertinent: inquiries made

by a governmental body relating to activities which if

found to be present could lead to dismissal (Cf. Sec.

1028, Govt. Code; Art. NNJSec, 19 of the State Constitu-

tion ). ln failing to perform this statutary duty, Globe

Was insubordinate and showed himself to be unfit for

anion

further: public employment. His dismissal was therefore

not patently arbitrary or discriminatory. The controlling

provisions of the County: Charter and the Civil Service

Rules do not permit a hearing to persons in Globe's status

except in certain specific instances such as a claim of

discrimination because of political or religious opinion, ra-.

cial extraction or organized labor membership. Since ne

such claim was made by Globe. ’‘no right to ah ‘aring was

present. | |

Any argument that Globe would be penalized ‘in his

search for future employment because he was disc harged

_ because of an inference of disloy: alty is without founda-

tion in the record. The Court below made clear that any

implication of guilt for invoking the privilege against :

self-inerimination was not involvedsin the discharge and

Was not material FR. 195]. .

POINT IV.

The Questions Asked of: Nelson and Globe by the |

Committee Were Pertinent to the Subject Matter

of the Investigation. | .

In the Court below, petitioners, relying on [atkins ¢.

United States, 334 U.S. 178. contended. that the .Con-

gressional Committee was not duly authorized tor the rea-

Son that the authorizing resolution avas tee broad and

vague in its terminology which empowered the commit.»

tee to investigate un-American ‘and subversive activities

[R. 139, 198].

Petitioners apparently have abandoned this tack in view

of the recent holding of this Court. that Rule NT under ;

which the Committee operat®d is not “constitutionally in-

firm on the score of vagueness.” (Barenblatt o. United

States, 360 U.S. 108 at pp. 122-123.) There can be no

doubt now but that the Subcommittee of the House Un-

— a

American Activities Committee, before whom petitioners

appeared was “duly authorized” and as such had the au--

thority to compel testimony. °

Petitioners now lean on Watkins -regarding the=perti-

nency “of the questions asked by the committee. s

| We understand Iutkins to teach that a conviction for

contempt under 2 0. S. C., sec. 192 cannot stand unless the

questions asked are pertinent to the subject matter of the

‘investigation, (MW atkins 7. United States, 354 U.S. 178,

at pp. 214-215; Barenblatt v. United Stattes, 300 U. S.

109, at p. 123). . |

Preliminarily a major difference between [atkins and

the instant cases’ is apparent. Watkins was prosecuted: fore

contempt under a criminal statute because of his’ refusal

to'testity before -the Subcommittee. Petitioners however

were not faced with any criminal sanctions for their re-

fusals to testify. Dismissal pursuant to Section 1028.1 of -

the Government Code is not a penal: action, and discharge

is not a criminal sanction. (Bailey v. Richardson, 182 F,

. 2d 46.)

- Further, Watkins had a difficult choice when faced

with ‘the necessity of answering questions. Since 2

U.S.C. seé. 192 is a criminal statute, Watkins had

the right’ to have available through a sufficiently. reveal-

ing statute, information indicating: the standard of crimi-

nality to which he would be held. Because this statute

defines the crime as refusal to answer “any question per-

tinent to the question under inquiry.” part of the standard

of criminality is athe pertinency of the questions pro%

pounded, According to this Court, this standard requires

a witness confronted with a particular question to pre-

guess at his peril, the’ court's subsequent ruling on its

pertinency.

_ a

Faced with ‘this problem of choice. Watkins was en-

titled to know the pertinency of the questions to the subs

ject matter. “That knowledge must be available with the

same degree of explicitness and clarity that the due proc

ess clause requires in the expression of any element of

a criminal offense.” (I atkins, supra, 334 U. Ss at p.

209; Cf. Scull v. Virgina, 339 Uys. 344).

At the outset, this problem did not contront petitioners

since the questions asked them were not am irphous on

their face. Nelson; for example.; refused to answer the

question: CAE chie,

“Are you a member of the Cymmunist Party to-

day?” [R. 38, Find. of Super. Ct. Ri 124).

-Globe also refused to answer this particular question [R.

164, 175]. Petitioners were not impailed on the [atkins

dilemma because refusal to answer this particular’ ques-

tion is specifically made a ground. for dismissal under

Section 1028.1(d) of the Government Code of California.

Theretore, at the time the questions were propounded to

them petitioners were aware, beyond doubt, of their perti-

nency.

Assuming, arguendo, that although absent the criminal

aspects ot Hfatkins, the principle of that ‘case is appli-

cable in the instant cates, we submit that the Court be-

low was correct in its view that the questions asked were

pertinent. . tdi

An examination vf the fecord discloses with. “undis-

putable clarity” the pertinency of the ‘questions pro-

pounded by the committee. Nelson, at the very least, was

well aware of the “topic under discussion,” since he indi-.

cated by kis remarks at the hearing that he Had been

present at the opening session of the Committee and had

heard the Chairman's introductory remarks [R. 24, 42].°

These remarks consisted of. statements of the Commit-

tee’s function and purpose [R. 17-18] and statements

concerning the subject matter under inquiry. Concern- +

ing the latter, the Chairman stated:

*

“In the course of this investigation Communist

‘Party activities of other individuals in the field of .

labor, business and government, have come to the at-

tention of the start, and’ will also be the subject of

investiation and of this hearing.

The committee took extensive testimony in Chi-

cago during December of 1955, and in the city of

Washington in February and March, rclating. to

Communist Party activities of employees in various

agencies,of the United States Government. During

the course of these hearings testimony was received

divulging the existence of heretofore undisclosed

Conamuyist Party cells which ‘operated in various

government agencies at various locations throughout

the country. |

* There will be heard;-betore the conclusion of these

hearings, certain witnesses whose identity Was dis-

aaa

‘closed during the course of the above hearings.” [R. ~

19-20].

Having this source of information available to him,’

Nelson cannot now say that he was-not aware of the Sub-

committce’s authority and purpose to question him as it

did. *

While Globe testitied the day after the opening session, the

record does not indicate that he was actually present at the first

cession and heard the opening remarks [R. 139. °136]. Therefore,

we do not argue that Glebe knew from personal knowledge et

this source of information. j

Additionally, in both Nelson and. Globe, ether sources

of information were available to petitioners by which per-

tinency can be gleaned. The authorizing res: Hution in light:

of this Court's decision in Barenblatt, supra, cannot be

said to be so vague per se as to be unenlightening to peti-

tioners on the score of pertinency.

Further, it is apparent that the very questions both pe-

titioners refused to answer related to their own. Commu-

-nist Party affiliations, questions “whose” pertinency of

course were clear beyond doubt.” (Barenblatt v7. United

States, 360 U.S. at p. 125, Cf. Watkins v. United States,

354 U.S. at pp. 182-185).

The record in the instant cases, we submit. clearly

* Shows the presence of many of the sources of informa-

tion which [Vatkins requires. These sources made the

subject ‘of the inquiry by the Committee quite ‘clear at

the time the questions were propounded. Therefore, it

would appear that the duty of the committee to explain

_pertinency in the face of a pertinency objection did not

arise (Cf. Barenblatt «. United States, 360 U. S. at p.-

124). .

However while we feel that .these multiple sources of

information leave no room tor a_peftinency objection,

still the responses. of the Committee's members when

faced with such an objection in Velson were more than.

adequate to fulfill any reciprocal obligation to explain

pertinency. For, example, faced with Nelson's pertinency

objection, Representative Donald: 1. Jackson explained:

“If the Congress of the United States, or any ot

its committees, does not have the right to legislate

with respect to federal employees, or. to make in-

quiry into matters concerning federal emplovees. past

or present, who are members or have been members

Cm ne een

—31—

-of the Communist Party, then’ there is | certainly

something very awry: as. far as the investigating

power of the Congress is concerned.

This is one area in which there shouldbe -abso-

| lutely no question as to the jurisdiction of the Con-

gress. © ;

The Congress wotild be derelict indeed if it: per-

mitted a situation to go unnoticed in which there.

were past or present members of the Communist

Party employed, especially in light of the action of the

Congress of the United States in-outlawing the Com-

munist Party.” |R. 27].

Nelson, oof course was a) former employee of /the

Federal Government | R. 47, 57, 63.

As well, the remarks of Congressman Clyde Doyle [R.

38-43] amply illuminate the pertinency, of the questions

propounded to Nelson. | }

| POINT V.

Petitioners Did Not Have the Right to Assert the

Protection of the First Amendment to Forestall

Pertinent Inquiry by the Sub-Committee as to

Petitioners’ Membership in the Communist Party.

Before a duly authorized, Sub-Committee of the House

Committee on Un-American Activities, petitioners re-

fused to answer questions relating to their past and pres-

ent membership in the Communist: Party.” Their “refusals

ty answer were prenised on the First Amendment. sup-

plemented by the Firth Amendment to the Constitution

of the United States.

~ Admittedly, where Virst Amendment rights are as--

serted to prevent’ inquiry by the Government, “resclu--

tion of the issue always involves a balancing by the

v

_) oe

courts of all competing, private and public interests at.

stake in the particular circumstances shown” ( Barenblatt

. United States, 300 U.S. at p. 126).

That reliance on the First Amendment privilege before

a Sub-Committee inquiring as to Communist Party af-

filiations is misplaced was pointed out in) Barenblatt,

supra. There, that precise issue was before this.

Court. Barenblatt indicates that, on balance. the, goy-

ernmental interests at stake in the Sub-Committee’s in-

vestigation are greater than individual interests. and that

therefore the provisions of the First Amendment cannot

be said to have been offended when questions concerning

the individuals Communist Party affiliations are pro-

pounded.

Clearly, then, irrespective of their rights under the

Fifth Amendment. petitioners did not have a right to re-

-sist on the basis of the First Xmendment, pertinent. in-

quiry by a duly authorized Sub-Committee as to their as-

sociational relationships. |

. POINT VI. . :

The California Statute Does Not Operate as a Bar or

Prohibit the Exercise of Constitutional Privileges

nor Was It the Purpose of the Statute to Coerce

Testimony Before the Federal Committee.

Petitioners claim that the State statute in its cttees as

well as ‘its purpose was to coerce testimony before the

Federal Committee and, was created to curtail thee free

exercise of the First°and Fifth Amendment Rights.

Since we have previously pointed out that. this Court

has indicated that an.individual’s right to refuse to tes-

tify before a Federal Committee on the basis of the First

Amendment is subordinate ‘to the rights of the Federal

t

*

efi

Committee to compel such testimony, (Barentblatt v.

United States; 300 U.S. 109), we limit our reply to the

claimed abridgement of. l-iith Amendment rights.

The Court below firmly pointed out that the. California

‘statute does not operate to bar or prohibit: the exercise

ot the privilege against self-incrimination.,

“Any point raised by petitioner .that the statu-

‘tory requirements of section 1028.1 bar or prohibit

his privilege of self-incrimination has heretofore been

decided by the ‘Supreme Court-in the case of Stein-

mets v. Cal. State Board of Education, 44. Cal.

2d 816. The court said, at page 824: ‘Moreover,

a person may properly be required to disclose infor-

‘mation relevant to fitness and loyalty as a reasonable

condition for obtaining or retaining public employ-

ment, even though: the disclosure under some circum-

‘stances may amount to selt-incrimination. (Cita-

tions). A- public. employee, of course, cannot be

forced to give an answer which may tend to incrimi-

nate him, but he may be required to choose between

disclosing information and losing his employment.’ ”

[R. 135-136]. Z

In tracing the history of the privilege against self-

incrimination this Court stated in Auapp wv. Schiveitser,

337 U.S. 371 at pp. 379-380:

“In. coristruing the hiith) Amendment and_ its

privilege against self-incrimination, one must -keep

in mind its essential quality as a restraint upon com-

pulsion of testimony by the newly organized Federal

_ Government at which the Bill of Rights was

‘directed, and not as a gvieral declaration of policy

) ayaist compelling. testimony, It is plain that the

amendment can no more be thought of as restrict-

—' ae

ing action by the States than as restricting the con-,

duct of private citizens. The sole—although deeply

valuable—purposes of the Fifth Amendment privilege

against self-incrimination is the. security of the in-

dividual against the exertion of the power of the

Federal Government .to compel incriminating testi-

mony with a view to enabling that same Govern-

ment to convict a man of his own mouth.” (Em-

phasis ours). ie '

The assertion that the purpose of the California

statute was to coerce petitioners into testifying before a

Federal Committee has no basis-in fact. We submit that

“the record is barren of evidence that the State. statute

was used as an instrument of compulsion of — testi-

mony. In point of fact petitioners’ rights to assert the

privilege of self-incrimination was scrupulously recog-

nized and guarded. The statute was not the basis of

‘Federal. prosecution or investigation nor is that a scin-

tilla of evidence.of any collaboration between Federal.

local or State aie or offices. (Cf. Knapp @.

Schweitger, of U. 371, 380). Petitioners were dis-

missed quite’ see es of their exercise of a Consti-

tutional privilege.

, . _ POINT VII.

The California Statute Does Not Act to Abridge a

Privilege or Immunity Protected by the Four-

teenth Amendment. |

In the Court below, petitioners relied on, and the Court

discussed, the application of the due process clause of the

Fourteenth Amendment to petitioners’ cases. Independent

of that reliance petitioners now argue for the first time ;

in this forum that the California statute abridges the

o

—35— z

privileges and immunities c¢lause of the Fourteenth

Amendmient.®

. Before the Federal Committee, petitioners elected to

‘exercise their privileges against self-incrimination. The

validity of this exereise was receenized on all levels of

the Federal and local proceedings. Having which exer-

cised the privileges, petitioners cannot now maintain they

were deprived of it.

Petitioners. were dismissed not because of the exercise

of constitutional rights but because of the mere fact of

their refusal to answer. -Therefor, the question of cur-

tailment “of a constitutional privilege is academic.

Further, petitioners cannot rely on the “privileges or im-

munities” clause, because the only thing that has been

taken away from them was their public employment.

We submit that. petitioners argument that the Fifth .

Amendment privilege must be deemed part of “privileges

and immunity of citizens of the United States” is tio

broad in its scope and ignores the narrow interpreta-

tions of the “Privileges or Immunities’ * clause by this

Court.

In the Slaughterhouse Cases, 16 Wall. 36, this Court

defined the nature of the Privileges and Immunities pro-

ot ‘

-

*Petitioners did not raise this point in, nor was it considered

‘by the State Court. The question of the applicability of the

“priviléges and immunities” clause was raised by the petitioners

tor the first time in their Petition for Ce riorari: We re ~pectfully,

submit therefore that this Court need not pass upon this question.

Cf. Wilson v. Cook, 327 Us S. V4 where this Court stated at

“page 4832"

“Tn reviewing. the oe of a state court, this Court will

not pass upen any: federal question not shown by. the record to

have been raised in the state court or considered there, whether

it be one arising out of a different or the same clause in the.

Constitution with respect to which other questions are properly

presented.”

p

—36—

tected by the Fourteenth Amendment. It was pointed out

that the Privileges and ‘Immunities guaranteed by the

.clause are those of citizens of the United States as dis-

tinguished from those of citizens of the States. It was

not the purpose of the American C mstitution to transfer

the: protection of fundamental rights from the States to

the Federal -Government. As naps by’ this Court in

Knapp v. Schi veitser, 357 U. . 371 at p. 374 (foot-

e's note No. 1):

“No force or validity 1s added to petitioner's argu-

ment by the. invecation:of the Supremacy Clatise,

Art. VI, cl. 2, and the Privileges ‘and Immunities

Clause of the Fourteenth Amendment... Whatever

» .the applicability’ of the Fifth Amendment, it is.in

no way expanded by those two provisions. Cf. Twin-

ing v. New Jersey, supra, at 99; *[ T]he: exemption

from compulsgry self-incrimination is not a privilege

‘or immunity of National citizenship. . . .””

‘

Petitioners claim that assuming they validly invoked a

- Federal privilege in a Federal proceeding, subsequent dis-

missal from public employment abridges their privileges

and immunities as citizens ot the U nited States.

But this argument blurs the distinction between ‘peti-

‘tioners immunity from self-inerimination under the Fed-

eral Constitution and their “privilege” of being public em-

ployees. This latter “privilege” is not one that alheres in

them as citizens of the United States but ts one create:

solely by the Siate. ;

> =

—Haniilton, ct al. v. Regents of University of California,

293 U. S. 245, supplies the distinction. This Court stated

there at 261-262: . Pate: *

“The clauses of the Fourteenth Amendment ‘in-_

voked by appellants declare: “No State shall, make or

entorce 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.’ Appellants’

contentions are. that the. enforcement of the order

prescribing instruction in military science and tactics

abridges some privilege or immunity coveréd by the

first clause and deprives of liberty safeguarded by

the second. The ‘privileges. and immunities’ pro-

tected are only those that belong to citizens of the

United States as distinguished from citizens of the

States—those that arise from. the Constitution and’

laws of the United States as contrasted. with those

that spring from. other sources. (Citations). Appel-

lants assert—unquestionably in good faith—that all

War, preparation for war, and the training required

by the university, are repugnant -to the tenets and

discipline of their church, to their religion dnd to

their consciences. The ‘privilege’ of attending the

university as a student comes not. from federal

sources but is given by the State. It is not with-

in the asserted protection. The only. ‘immunity’

claimed by these students is freedom from: obliga-

“tion to. comply with the rule prescribing military

‘training. But that ‘immunity’ cannot be regarded.

as mot within, or as’ distinguishable from, the ‘lib-

erty’ of which they claim to have been deprived by

the enforcement:or the regerits’ order, If the regents’

order ds not repugnant to the due process clause.

then it does not. viblate the privileges and immuni-

ties clause.”

It is submitted that the privilege of working for the

County of Los Angeles comes not from Federal Seurces

but from the State arid local government and as such is

not within. the asserted protection of the Privileges and

luemenities Clause of the Pegnecan Amendment.

~ As pointed out above, where this Court has accorded

Constitutional protection to public employment, such pro-

tection is fused solely onto the due process clause of the

Fourteenth Aniendment and not the privilege and imimu-

nities clause. This protection prohibits dismissal from

employment pursuant to a. statute on -patently arbi-

trary.-or discriminatory grounds. (Slochower v. Board

of praia 350 U, S..551; Wieman v. Updegraff,

344 U.'S."183). 0

Since it is not arbitrary to dismiss a public employee

who validly claimed the state privilege against self-

incrimination, Lerner v. Casey, 357° U. S. 68, we sub-

mit that it is no more arbitrary to dismiss an employee

who has claimed a valid privilege in a Federal pro-

ceeding. As petitioners” discharges are not repugnant to.

the due process clause, they do not violate the privilege

and immunitfes clause.

eee —39—

Conclusion.

It is therefore subniitted that petitioners were properly

dischareed from their public employment. for. insubordi-

nation and a violation of Section 1028.1 of the Govern-

ment Code of the State of California, and that the de-

cision of the Court below upholding their discharges

“should be affirmed. -

Pie Respectfully | submitted,

| Haroiy W. KENNEDY,

— County Counsel,

Way FE. LAMoREAUX,

elssistant County. Counsel,

and

RONALD L. SCIENEIDER,

/ ar Deputy County Counsel,

: By Harotp W. KENNEDY,

County Counsel, .

eIttorneys for Respondents.