# Brief for Respondents — Nelson v. County of Los Angeles > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0225%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for Respondents - **Published:** January 1, 1960 - **Citation:** 362 U.S. 1 ## Text 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 — — 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 - —————— 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0225%3A4. Public record. Not legal advice.