Reply Brief for Petitioners — Nelson v. County of Los Angeles

Supreme Court uf the Hnited States

October Term, 1959

THOMAS W. NELSON,

Petitioner,

sie -V.-

COUNTY OF LOS ANGELES. br at.

Ie spoudents,

ARTHUR GLOBE,

; i ig faficraee i

¥; A :

COUNTY OF LOS ANGELES, por ot.

. Responds nfs,

On Writs of Cartiorari to the District Court of Appeal of the

State of California, Second Appellate District, Division One

-REPLY BRIEF: FOR PETITIONERS —

A. L. Warts,

FRED OKRAND,

Winiiam VT. Pinussery,

coo Ameriean Civil Libe ties Lonien

od Southern California,

257 South Spring Street,

Los Angeles 12, California.

Naxetre Demir,

RownLanp Warts,

¢ o American Civil Liberties Union,

170 Fitth Avenue,

New York 10, New York.

Afforneys for Petitioners,

a a a

ree

ti.

a.

" INDEX

The Primary Issue in this Case is Whether the

(‘alifornia Statute, As Here Applied to Peti- -

tionérs, Provides for Their Discharge From Em-

ployment by the County of Los Angeles on an

Arbitrary Ground :

See 8 € ee £ eV Ot 6 OT MO 6.0 OS eee Oe 8 es

Petitioners’ Discharges Cannot Be. Justified on

the Basis of the State’s Interest in Determining

Fitness of Its Employees or Any Other Basis

Suggested by Respondents (Reply te Respond-

ents’ P oint 1) ee

SUCCESS EVE DS £8 Hu S.C OE OBS 6 6 EE SC

The Civil Service Commission Hearing AccordedL

Petitioner Nelson Didi Not Meet the Reanbicatis

of Due Process (Reply to Respondents? Point hI).

Petitioner Globe Is Protected*by the Due Process

Clause’ Xgainst Deprivation of Employment. on

anu Arbitrary Ground, Regardless of his Tempo-

rary Status Under the Civil Service Regulations

(Reply to Respondents’ Point IID) .0... 2.2.2...

The Court Below Interpreting the Statate As .

Requiring The Committee*s Compliance with this

Court's Watkins Ruling, Erred in Holding that

the Subject of the Inve stigation was Suflicre ‘ntly

Specitie (Reply to Respondents’ Point IV)

The Court) Below Interpreted the. Statute As

Authorizing Petitioners’ Discharge Even It Their

Objections Under the First Amendment To -the

Committee's Questions Were Valid: the Issue of

Whether the Committee in Facet Was Violating

the First Amendment Is Therefore Not Presented

to this Court (Reply to Respondents’ Point V) ..

The California Statute, As Here Applied to

Petitioners, Was an Unconstitutional Interference

with The? Privilege Against Self-Incrimination

Seeured by the Fifth Amendment As Well As

Other Federal Rights and Privileges (Reply to

Respondents’ Points VI and VIT) ......2.... P

~

PAGE

Table of Cases

Beilan v. Board of Education, 867 U.S. 399 ...0..

Bomar v. Keyes, 162 F. 2d 136, 139 (C. A. 2, 1947)...

‘Garner v. Los Angeles Board, Bal .. 716 eee rn

Lerner v. Casey 357 U4 8 ....... . eo ah pe

Quinn v. United peetes, F009 UB, 190 og cece se tes

Slochower v. Board of Edueation, 350 U.S. Spl...

United Publie Workers v. Mitchell, 380 Ua S. 75 2...

Watkins v; United States, 354 U.S. 178 0.0.20...

Weiman v. U poegratl, 344°U. 8. USS ow ccc eens

Rules and Regulations

Rule 7.04(g) of Los Angeles County Civil Service -

rt eg rida ca cw ees

Scetion 3.5(1) of Rules and Regulations of the Board

of Civil Service Commissioners of the City of Los

re Seva ia sew e rhNKR eRe KH Rees ees ;

PAGE

7.

=

-

. c IN THE

Supreme Court of the United States

October Term, 1959 |

No. 152 _

fay

Vv

Tuomas W. NELSON,

: Petitioner,

—yV —

COUNTY OF Los Antetes, et al.,

Respondents.

Artuur GLosr,

: Petitioner,

ene cena

County op los ANGELES, ef al/.,

; Ri spondevits.

On Writs of Certiorari to the District Court of Appeal of the

State of California, Second Appellate District, Division One

REPLY BRIEF FOR PETITIONERS

1. The primary issue in this case is whether the Cali-

fornia statute, as here applied to petitioners, pro-

vided for their discharge from their employment

by the County of Los Angeles on an arbitrary

ground. |

Respondents misstate the issue whew they elevate to

primary position’ in this case the question of the charac ter

of the hearing accorded petitioner Nelson by the ( ‘ounty

Civil Serviee Commission and the question of whether peti-

Pp 3

tioner Globe should have been aceorded such a hearing

(Resp. Br., p. 4). While the court of original jurisdiction

invalidated Globe's discharge on the ground that he had not

been accorded a hearing, petitioners have at no, time bot-

tomed their argument that the discharges are unconstitu-

tional on the natare of the*hearing in Nelson's case or its —

absence in Globe’s.!

Both petitioners were diséharged, pursuant to a Cali-

fornia statute, for their refusals on grounds ‘of the First

and Fifth Amendments to answer questions in appearances

before the Committee on Un-American Activities of the

House of Representatives (Petr. Opening Br., .pp. 13-i4).

“The primary issue is whether the California court's justi-

fication of the discharges on the-grounds of the State's

interest in determining the loyalty of its employees (R. 136,

159-40, 190, 191-2) is arbitrary, considering that petitioners’

refusals to answer oceurred before a Federal body which

Was not empowered or secking to determine the fitness of lo.

cal government employees; considering: that the County ef-

fected the discharges on the bare basis of the refusals with-

out considering its own elaborate lovalty program and

petitioners’ compliance with it (Petr. Br., pp. 16-17); and

considering that the discharges interfered with the assertion

of Federal Constitufional rights before a Federal hody.

2. Petitioners’ discharges cannot be justified ‘on the

basis of the State’s interest in determining fitness

of its employees or any other basis suggested by re-

_. spondents (Reply to Respondents’ Point 1).

Respondents attempt to support the discharges in part

on the basis adopted by the Conrt below, that the State has ,

a legitimate interest in ee the loyalty of its em.

' See R. 10-11, 109, 131-2, 141-9, 168-9, 202-9; Petition to thi-

Court for Writ of Certiorari, pp. 12-14, with reference to briefs filed

in California courts, and p. 3, Questions Presente d;—Questions Pre-

sented, Petitioners’ Opening Brief, p. 4.

»

»

ployees. In doing s6 respondents, like the Court below,

argue as if the County had been conducting an investigation

of petitioners in which they ‘refused. to give information

(Resp. Br. pp. 1445). When, on the contrary, the re

fusals in fact oeeurred before a Federal body whieh was not

eyerempowered to determine the fitness of local employees,

and when in fact the State did not even consider the em-

plovees’ compliance with its own loyalty program or

whether there was any deficiency in it before discharging

ther for the Federal refusal, their discharges. cannot be

deemed reasonably related to the State's need to determine

fitness (see Petr. Br., pp. 16-17).

Respondents attempt to inject: an additional basis of

justification for the discharges which has never before been

suggested—that the petitioners’ invocation of their Con-

stitutional rights and refusals to answer before the House

Committee destroy confidence in public employees (Resp. °

Br., p. 16).

But it is the judgment of the Californiaccourt, present-

ing the issue of whether, petitioners’. discharges are eon-

stitutional on the ground. of the State's interest in deter-

mining loyalty,? which is before this Court for review.

Further, there is a clear answer to respondents’ argu-

nent: it assumes disrespect for Federal Constitutional

rights. Here the refusals were on Federal Constitutional

erounds before a body which was not charged with deter-

mining the fitness of local governmental employees. Re-

spondents’ argument that petitioners’ refusals under these

_circumstances cause a loss ef confidence and that they there-

fore ean be discharged, would permit the State to stimulate

a vicious circle. For a lack of ‘confidence in employees

2 The Court belgw adopted this ground rather than lack of con;

fidence, even though this Court’s Beilan decision, stressing the re-

_ quirement of candor by the employee to the employer, was brought

“to its attention (R. 130-2).

who invoke their Federal Constitutional.rights would result

if the State can diséharge employees for such invocation.

It is such discharges which indicate te the public that asser-

tion of these rights should not be regarded in good faith,

and should instead be attributed to a purpose to conceal

and view ed With suspicion.

In any event, an Interest which has only’a shadowy and

speculative connection with the discharges—so speculative .

‘that it did not even oceur.to either of the California courts

—is insufficient to justify discharges which inflict a sub-

stantial deprivation on ap aga abridge First Amend.

ment freedoms (see Petr. Br. p. 31), and—perhaps most

important,—interfere with a asse rtion of. Federal Con

stitutional rights. | ,

Such an interference has net been countenanced by this

Court. See Lerner v. Casey, 397 U.S. 468, at p. 479; Beitlan

v. Board of Education, 357 UL S. 309, at p. 405. Respond-

ents overlook an important factor in this Court’s Lerner

decision (see Resp. Br. p. tT). There the Court. said:

‘The federal privilege against self-inerimination was not

available to appellant * * * in this state‘investigation. * * ~

Ilenée we are not here concerned with the protection, as

a matter of policy or Constitutional requirement, to) be

accorded persons who under. similar circumstances, in a

Federal inquiry, validly invoke the Federal privileges.”

(357 U.S. at pp. 478-9). :

This Court has rejected over and over again respond-

ents’ statement and implication from the WéeAuliffe dictum

3 Respondents denen the seriousness of petitioners’ depriva-

tien on the basis that they may not be permanently barred from em-

ployment (Brief, .p. 23). While the termination of one’s present

means of livelihood is in itself a serious: deprivation, it may also he

noted that both the City and County of Los Angeles have rules against

- hiring .of persons previously discharged -from public employment ¢ see

Rule-7.04(g) of the Los Angeles County Civil Service Commission

and Section 3.5(f£) of Rules and Regulations of the Board of Civil

Service Commissioners of the City of Los Angeles).

—=—=e,r

5. areagh

(Resp. Br., pp. 16, 24) that the- State is free to condition:

public employment on whatever terms it chooses. See

United Public Workers vy. Mitchell, 8330 U.S. 75, 100: Garner

v. Los Angeles Board, 341 U.S. 716; Wieman v. Updeaqraff,

344 U.S. 183; Slochower v. Board of Education. 350 TLS.

ool. The established doctrine that the State cannot con-

dition the grant of privileges on the ‘waiver or suppression -

of Federal Constitutional rights (see Petr. Br.. pp. 28-30)

ix here applicable; respondents havg shown no justification

for disregarding it. The State tgnnot so expand the con-

cept of the employee's duties as to abrogate his Federal

righfs. '

3. The Civil Service Commission hearing accorded

petitioner Nelson did not meet ‘the requirements

of due process (Reply to Respondents’ Point II).

Respondents argue that Nelson's discharge met the re- =

quirements of due process because he was given a hearing

at which he conld have explained the reasons, for his

refusals to answer before the House. committee (Resp. Br.,

p. 21). Assuming arguendo that the hearing is in issue in

considering the validity of petitioner's gischarge (see Petr,

ir, p. 14), we have shown that it could not in any event be

deemed to accord with due process because petitioner was

viven 140 notification of his duty at such hearing; of what

charges, if any, he was to answer; or of how he could

defend hintself (see Petr. Br., pp. 20-23). Respondents con-

tinue to refer to petitioner as ‘‘refusing’’ to explain his

‘reasons’? (Br., pp. 12, 22), whereas in fact he was never

informed that he had this duty. Indeed even in respond-

ents’ after-the-event discussion of the hearing, they still

vive no indication of what petitioner Nelson was supposed

to do there. Apparently referring to some reasons other

than petitioners’ constitutional objections, they still leave

us in the dark as to what type of reasons an employee

should produce in his defense. Even at this late date, there

is no indieation of how petitioner Nelson could -have pro-

tected himself at the hearing. besides introdueing as he d

his personnel record, which included data on the lovalt

investigation undertaken of him by the County of Li

Angeles, and the opening statement of the chairman of i

House subcommittee. | ,

4. Petitioner Globe is protected by the due proce:

clause against deprivation of employment on a

arbitrary ground, regardless of his temporary stat

under the Civil Service regulations epty to R

spondents’ Point III). .

Petitioners have not argued, as respondents Ww ould ha’

cit (Resp. Br., p. 24), that.the Counfy must use the same pr

cedure in discharging a temporary as a permanent e1

ployee. “As.we pointed out above (supra, p. 2), wheth

or not. petitioner Globe was accorded: a hearing is not t]

issue here.

In G @: x case, like Nelson's, the issue is whether

dise charge for refusal on Federal Constitutional grounds

~ alswer questions before a Congregsional committee ¢

be justified in terms of the State’s interest. in determinn

the lovalty of its employeés (sev opinion of Court belo

‘He 190, 191-2; Resp. Br., p. 25). We maintain, contrary

_ respondents, that due process affords petitioner Globe pr

tection against the State's depriving him of employment «

this arbitrary ground regardless of the particularities

his employment status and regardless gf whether he w

entitled to the particular, prerequisites conferred by Sta

law on employees with permanent civil service, stati

Indeed, he would have been protected by due process fro

arbitrary exclusion from employment.even if he had mere

been a new applicant for it” (see Petr..Br., p. 27, seh

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5. The Court below, interpreting the statute as requir-'

-ing-the committee’s compliance ‘with this Court’s

Watkins ruling, erred in holding that the subject

of the investigation was sufficiently specific (Reply

‘to Respondents’ Point: IV).

The Court below deemed this Court’s ruling in WP iaiiéibe

United States, 394 U.S. 178, that the subject of the inves.

Paseo must be clearly re veated to the witness, applicable

in determining whether the questions petitioners refused to

answer were ‘‘duly authorized’? within the meaning ofthe

California statute (R. 139; see R. 189). We therefore do

not believe that it is open to respondents to argue before

this Court that the Watkins doctrine should not apply.

Respondents still have not attempted, despite their as-

_sertion that there were ‘‘multiple soirces of information’’

as to the subject of inquiry before the Committee (Br., p.

30), to state what that subject was. We submit that the.

remark of Repr esentative Jackson as to Federal employees,

quoted by respondents, only indicates one possible concern

of the committee. In any event it-cannot be deemed to.

define the subject of investigation, considering’ that. peti-

‘tioner Globe was never a Federal employee. Moreover,

the remarks of Congressman Doyle, cited by respondents

(Br., p. $1), indicate quite a different concern. . In sum,

there fe nothing either im the statements of the chairman

of the Subeommittee or its members or in the questioning '

of petitioners or-in any other source of information Which

clearly defines the subject under inquiry (see Petr. Br., ”

pp. 32-4). ine

iw 8)

6. The Court below interpreted the statute as authoriz-

ing petitioners’ ‘discharges even if their objections

under the First Amendment. to the Committee's

questions were valid; the issue of whether the Com-

mittee in fact was violating the First Amendment

is therefore not presented to this Court (Reply to

Respondents’ Point V).

As we have pointed out in our main brief (pp. 27-28),

the authoritative interpretation of the California statute i-

that it directed petitioners?’ ise} ‘harges regardless of the

Validity of their constitutional objections to the House

Committee's questi#is. The constitutionality of the Cali

fornia statute as here applied must therefore be determined

on the assumption that petitioners had a right under the

First Amendment to refuse to answer the Committee's

questions,

7. The California statute, as here applied to “peti-

tioners, was an unconstitutional interference with

the privilege against self-incrimination secured by

the Fifth Amendnient as well as other Federal rights |

and privileges Cmapry to Respondents’ Points VI

and Vil).

-Petitioners have at. all Stages of this proceeding argued

that their-discharges were an unconstitutional interference

with the exereise of the privilege against: self-merimina

tion guaranteed by the Fifth Amendment in Federal pro-

ceedings.4. Respondents have offered no cogent reply to

this argument. They state that petitioners cannot main:

tain that California interfered with and curtailed exer

‘See Petition to this Court for Writ of Certiorari, p. 3: ay to

previous stages of proceeding, R. 10-11, 109. 108, ane Petition ter

Certiorarn, pp. 13-14. While we believe that the question of ped.

eral supremacy can be deemed incidental to the questions raised fy

the, Petition for Certiorari (compare Kesp. Br. footnote 1), imelusion

of this question ts net essential te pettraners’ Constitutional argument

-

cise of the privilege because they’ in fact. invoked the

privilege before the House Committee (Resp. Br., p. 35).

If this rather disingenuous approach were followed there

could be no challenge to unconstitutional state action of

this type: if the employee failed to assert his constitu-

tional rights before the Committee, he certainly would have

. no ease; and if he asserts his rights, he cannot, according

to respondents, contest: the deprivation inflicted on him

asa result of his assertion. Fortinately, however, respond-

ents* view does not accord with judicial proeedare. (Peti-

tioners can claim the unconstitutionality of the deprivation

imposed on them because of their invocation of their con-

stitutional oe in the same way as in Wathins v. United

. States, SO4 US. 178 to take one of innumerable possible

examples— thin ‘ourt considered whether Watkins, who had

invoked his constitutional rights in a Congressional inves.

tigation, could for that reasgn be punished for contenspt.

As Judge Learned Hand said in reply to an argument

similar to respondents’: Tt would ‘temasculate’’ the Fifth

Amendment, privilege “to deny protec tion weainst re eee

Tw aes whom threats did ‘not deter.’ * Bomar vy. Nees,

2B. 2d 136, 189-00. AL 2, 1947).

es also argue that petitioners were dismissed

not‘ beeause of the exercise af constitutional rights but

because of the mere fact of their refusal tocanswer'! (Resp.

Br, p. 35). The attempted distinetion is impossible, Pe-

titioners’ constitutional right under the First and Fifth

Amendments was-the right to refuse to answer questions

violating the First Amendment or within the scope of the

Fitth Amendment privilege; their refusals to answer con-

stituted the assertion of these rights. Again-respondents”

“novel approach would destroy the process of ad jndivating

constitutional rights.- In any of the éases involving. a re-

fusal to testify on grounds of the Fifth Amendment, such

as Slochower or Quinn? it could have been argued that the

5 Sochower-v. Bogrd of Education, 3 350 U. S.-55); Ouwinn v.

United States, 349 U. Ss. 155

'

10

constitutional basis for the refusal should be ignored and

the discharge or contempt penalty, respectively, viewed a-

if imposed for the bare physical act of refusing to answer.

Finally respondents indicate that petitioners are view-

ing the privilege of State employment as a Federal priv-

ilege (Resp. Br., pp. 36-38). Petitioners are not ehargeable

with this error: It is of course the privilege against.

self-inerimination before a Federal body, granted by the.

Fifth Amendment, ‘to which petitioners refer as a Fed-

eral privilege, and not State employment. Petitioners’

point is that the State, by, conditioning the privilege’ of

employment on the sacrifice of this Federal privilege,

interferes with its exercise. Respondents ignort, rather

than answer, the precedents that support petitioners (see

Petr. Br, pp. 28-29). Even absent preeedent, it could

not be doubted that the realistie effeet of California’s threat

to discharge an-.enmiplovee who invokes his constitutional

rights before a Congressional committee, is to coerce em.

“plovees to forego exercise of the Federal right to refus:

to answer. on Federal constitutional grounds.

Respectfully submitted,

A. L. Wirts;

Krep OKRAND,

Witniam T. Pinussery, *

¢ 0 American Civil Liberties Union

of Southern California,

“aia & 257 South Spring Street,

5 in Los Angeles 12, California.

NaNetTTE Demoirz,

RownLanp Warts, :

¢ o American Civil Liberties Union,

“176 Fifth Avenue,

New York 10, New York,

: <9 Attorneys for Petitioners,

January, 1960. . aor

.

SUPREME COURT OF THE UNITED STATES

No. 152.— Ocrorer Tere, 1950,

On Writ of Certiorari to

Thomas W. Nelsoft and Arthur | >” an . :

the Distriet Court) of

Globe, Petitioners,

ie ' “Appeal of Califorria,

; , Second Appellate Dis-

County of Los Angeles, et al. s Dt

; 1) CP.

| February: 20, 1960. | of yl

Mr. Justice CLark delivered the opinion of the Court.

Petitioners, when employees of the County of Los

Angeles, California, were subpoenaed by and appeared

before a Subeomimittee of the House Un-American Activ-

ities Committee, but refused to answer certain questions

concerning subversion... Previously, each petitioner had

heen ordered by the County Board of Supervisors to

answer any questions asked by the Subcommittee relating

to his subversive activity, and $ 1028.1 of the Government

Code of the State of California ' made it the duty of any

'Califorma Gevernment Code, § 1028.1:

“Tt shall be the duty of any pubhe emplovee who may be sib.

poensed or ordered by the gevermmng body of the State or loed

weney by whieh such emplovee is emploved to appear before such

governing body, or a committee or sub-committee: thereof, or bys

duly anthonzcd committee of the Congress of the United states, or

of the legislature of this State, or any subeommittee of any such

colnmittee, to appear before such committee or subcommuttes, ame

to answer under oath a question. or questions proponnded by such

governing body, committee or subcommittee, or atmember or counsel

thereat, relating to: .

(a) Present personal advocacy by the emplovee ot the foreetul

or violent overthrow ef, the Government of the United States or of

MV state.

“(by Present knowing membership in any organizationsnow advo-

cating the forceful or violent overthrow-of the Government ‘of the

luted States or of anv state. + ; i

tc) Past knowing membership at any time since Oetober 5, 145,

in any organization Which, to the Snowledge of such emplovee, during

2° NELSON v. COUNTY OF LOS ANGELES.

public employee to give testimony rélating to such activity

on pain of disehargé “in the manner provided by law.

Thereafter the County discharged petiticuers on eet

ground of insubordination and violation of § 1028.1 «

: the Code. Nelson, a permanent social worker na hae

by the County's Department of Charities, was, upon his

request, given a Civil Service Commission hearing whici

resulted in a confirmation of his discharge. Globe was :

temporary empioyee of the same department and was

denied a “hearing on his discharge on the ground that, «+

such, he was not entitled to a hearing under the Civil

‘Service Rules adopted pursuant to the County Charter

Petitioners then filed these. petitions for mandates seeking -

reinstatement, contending that the California statute and

their discharges violated the Due Process Clause of the

Fourteenth Amendment. Nelson's discharge was affirme:

by the District Court of Appeal, 163 Cal. App. 2d 607.

320 P. 2d 978. and Globe's summary dismissak was like-

wise affirmed, 163 Cal. App. 2d 595, 329 P. 2d 971. A

petition for review in each of the cases was denied without

opinion by the Supreme C ourt of California, three judge

dissenting. 163 Cal. App. 2d 614, 329 P. 2d 983; 163 Cal.

the time of the employee's membership advocated the. foreeful 0

violent overthrow of the Government of the United States oro!

any “state.

“(d) Questions as to present knowing membe rship ot such em

plovee in the Communist Party or as to past. knowimg membershi;

in the Communist Party .at any time since*October 3, 1945.

“(e) Present personal advocacy by the emplovee of the suppor

_of a foreign government against the U nited States in the event «

hostilities between said foreign government and the United State-

“Any emplovee who fails or refuses to appear or to dinswer under

oath om any ground whatsoever any such questions so propoundes:

shall be guilty of insubordination and guilty of violating this seetion

and shall be suspended and dismissed from his employment in th

manner provided by law.”

oi

t

i

j

i.

3

NELSON v. COUNTY OF LOS ANGELES. 3

App. 2d 606, 329 P. 2d 978. We granted certiorari. © 360

U8. 928. The judgment in Nelson's case is affirmed by |

an equally divided Court and will not be discussed. We

conclude that.Globe’s dismissal was valid. a.

On’ April 6, 1956, Globe was served with a subpoena to

appear before the Subcommittee at Los Angeles. On the

same date, he was served with a cc oy of an order of the

County Board of Supervisors, originally issued February

19, 1952. concerning appearances: before the Subcom-

mittee. This order provided, among other things, that it

was the duty of any employee to appear before the Sub-

committee when so ordered or subpoenaed, and to answer

questions concerning subversion. The order specifically

stated. that eny “employee who disobeys the declaration

of this/duty and order will be considered to have been in-

subordinate . . . and that such insubordination shall con-

stitute grounds for discharge ... .”.* At the appointed

time, Globe appeared before the Subcommittee and was

interrogated by its counsel concerning his familiarity with -

the John Reid Club. He claimed that this was a matter

which was entirely his “own business,” and, upon being

pressed for an answer, he stated that the question was

“completely out of line as far as my rights as a citizen are

concerned, [and] I refuse to answer this question urder -

the First and Fifth Amendments of the Constitution of

the United States.” On the same grounds he refused to.

answer further questions concerning the Club, including

‘one relating to his own membership. Upon being asked

if he had observed any Communist attivities on the part

of members of the Club, Globe refused to answer, and

suggested to committee counsel “that you get one of your

‘ This original order was the forerunner of § 1028.1 of the Cahi-

fornia Government Code, enacted in 1953, which with certain retine-

ments embodied the requirements of the order into state law. It”

Is against: this. Section that petitioner levels his elaims of uncons

stitutionalitv. See note 1, supra.

+ NELSON -v. COUNTY OF LOS ANGELES

trained seals up hefe and ask them.” He refused to tes-

tify whether he was “‘a member of the Communist Party

now” “on the same grounds” and “as previously stated for

previous reasons.” On May. 2, by letter, Globe was «s-

charged, “without further notice,” on “the grounds’ that

[he had] been guilty of insubordination and of violation

of Section 1028.1 of the Government Code of the State ot

California... .” - The letter reeited the.fact that Globe

had been served with a copy of the Board order relating

to his “duty to testify as a County emplovee . . . before

said Committee” and that. although appearing as directed.

he hac refused to answer the question, “Are you a mem-

ker of the Communist Party: now?” Thereafter Globe

requested a hearing before the Los Angeles County Civil

Service Commission, but it found that, as a temporary

employee, he was not entitled to a hearing under the Civil

Service Rules.’ This the petitioner does not dispute. ;

However, Globe contends that, despite his temporary

status, his summary discharge was arbitrary and unrea-

sonable and, therefore. violative of due process. He rea-

sons that his discharge was based on his invovation before

the Subcommittee of his rights under the’ First and Fifth

Amendments. But the record does not support even ar

+ 100%. ae Period Following First A ppointme nt

“fn employee who has not yet completed his first) probationary

“period may be discharged or reduced:in accordance with Rule 109

by the appomting power by written notice, served on the employer

and copy filed with the Commission, specifying the grounds and tl

particular facets on which the discharge or reduetion vis based. Such

an employee shall be entitled to answer, explain, or deny the eharge-

in writing within ten business days but shall not be entitled te

hearing, exeept in ease of fraud or of discrimination beesuse of polity

eal or religious Opinions, racial extraction, or organized laber

membership.” : .

“TOO, Consent of Commiissroli

“No consent need be secured to the discharge or reduction of .

temporary or recurrent emplovee.”

NELSON ». COUNTY OF LOS ANGELES. 5

inference in. this regard, and beth the order and the statute

upon which the discharge was based avoided it. In fact,

California's court has held to the contrary, saying, “At

no time has the cause of petitioner's discharge been

alleged to be anything but insubordination and a violation

of § 1028.1. nor indeed under the record before’ us could

ithe.” 163 Cal. App. 2d. at- 599, 3290 P. 2d. at 974.

Moreover, this finding is buttressed by ithe language

of the order and of California's statute. Both require—

the employee to answer any interrogation in the field

outlined. Failure to’ answer “on any ground whatsoever

any such questions” renders the emplovee “guilty of

insubordination” and requires that he “be suspended and

dismissed from his employment in the manner provided

by law.” California law in this regard, as declared by its

court, Is that Globe “has no vested right to county em-

ployment ‘and m: iv therefore be discharged summarily.’

We take this interpretation of California law as binding

HpOon Us, . -

We. therefore. reach Globe’s-contention that his sum-

mary discharge was nevertheless arbitrary and unreason-.

able. In this regard he places his reliance on Slochower

v. Board of Education, 350 U.S. 551 (1956). However.

the New York statute under which Slochower was dis-

charged. specifically operated/ “to discharge every city

employee who invokes the Fifth Amendment. In practi-

cal effeet the questions asked\are taken ds confessed and

made the basis of the discharge.” Jd., at 558. This

“built-in” inference of guilt, derived solely from a Fifth

Amendment claim, we held to be arbitrary and unreason-

able. But the tést here, rather than being the invoeation

of any constitutional privilege, is the failure of: the

employee to answer. California has not predicated dis-

charge on any “built-in” inference of guilt iin its statute,

hut solely “on emplovee insubordination for failure to

give.information which we have held that the State has

me,

6° NELSON v. COUNTY OF LOS ANGELES.

‘a legitimate ‘interest in securing. See Garner vy. Board

of Public Works of Los Angeles, 341 U.S. 716. (1951):

Adler vy. Board of Education, 342 U.S. 485 (1952).

»Moreover it must be remembered that here—unlike

Slochower—th® Board had specifically ordered its em- |

ployees to appear and answer.

We conclude that the case is controlled Ay? Beilan vy.

Board of Education of Philadelphia, 357 U’S. 399 (195s).

and Lerner v. Casey, 357 U. S. 468 (1938). It is not

determinative that the interrogation here was by a fe:l-

eral body rather than a state one, as it was in those cases.

Globe had been ordered by his employer as well as by

California’s law to appear and answer questions betore .

the federal Subcommittee. These’ mandates made no

reference to’ Fifth ~Amendment privileges. If Globe had

simply’ refused, without more, to answer the Subcon-

littee’s questions, we think that under the princip!es ot

Beilan and Lerner California could certainly. have dis-

charged him. The fact that he chose to place his refusal

on a Fifth Amendment -claim puts the matter in no dit-

ferent posture, for as in Lerner, supra, at 477, California

did not employ that claim as thé. basis for drawing a)

inference of guilt. Nor do we tiaink that this discharge ~

is vitiated by any deterrent effect that California's hiw

might have had on Globe's exercise of his federal. claim ot

privilege. The State may nevertheless legitimately pred-

icate discharge on refusal to give information touching co

the field of security, See Garner and Adler, supra

Likewise. we cannot say as a matter of due process that

the State's choice of securing such information by means

of testimony before a federal body‘ can be denied

Finally, we do not believe that California's grounds for

discharge was an_arbitrary classification. See Lerner

id.. at 478. We conclude that the order of the County

‘It is noteworthy that the California statute requires suc!

information to. be given before both state and federal bodies.

.

NELSON v. COUNTY OF LOS ANGELES. 7

» ;

Board was not invalid under the Due Process Clause of.

the Fourteenth Amendment.

_ Nor do we beheve that the remand on procedural

grounds required in Vitarelli v. Seaton, 350 U. 8. 535

(1959), has any bearing here. First. we did not reach’ the

constitutional issues raised in that case. Next, Vitarelii

was a Federal Department of Interior émployee who

“could have been summarily discharged by the Secretary

at any time without'the giving of a reason.” 7d., at 539.

The Court held. however, that. since Vitarelli was dis-

missed on the grounds of national security rather than by

summary discharge, and his dismissal “fell substantially

short of the requirements of the appheable departmental

regulations,” it was “illegal and of no effect.” Id., at 545.

But petitioner here raises no such point, and clearly asserts

that “whether or not petitioner Globe was accorded a hear-

ing is not the issue here.” ° He bases his whole case on the

claim “that due process affords petitioner Globe protection

against the State’s depriving him of employment on this

arbitrary ground” of-his refusal on federal constitutional

_ grounds to answer questions of the Subcommittee. Hav-

ing found’ that on the -ecord here the discharge for

“insubordination”. was not arbitrary, we need go no‘

further. .

We do not. pass. upon petitioner's contention as to the

Privileges and Immunities Clause of the Fourteenth—

Amendment, since its was neither raised i nor considered’

by the California courts. The judgments are

Affirmed.

Mr. Cuter Justice Warren took no, part in the

cofsideration or decision of this case.

‘Nor does petitioner make any attack on the failure of Calitorma’s

statute to afford temporary emplovees such as he san opportunity

to exphun his failure to answer questions. Tt will be noted that.

permanent emplovees are granted such a privilege ; .

SUPREME COURT OF THE UNITED STATES

/ No. 152.—-Ocroper TerM, 1959.

-

’

Thomas W. Nelson and Arthur Pure: a ‘

; ee re . the Distriet Court: of

Globe. Petitioners,

- Appeal of California.

fr

. ase Sece Appellate Dis-

COqutv of Los Aigeles, et al. trict :

\ :

| February 29." 1960. |

Mik. Justice BLACK, whom Mr. JUSTICE E Dor GLAS JOINS,

“dissenting. og:

‘Section 1028.1 of the California Code, as here applied,

provgdes that any California employee who retuses to in-

crinmnate himself when asked to do so by a Congressional

(Committee “shall be suspended and dismissed from his

employment in the manner provided by law.” The Fifth.

Amendment, which is a part of the Bill of Rights. provides

that no person shall be compelled to ineriminate (“to be

a witness against”) himself. The petitioner, Globe, an

employee of the State of California, appeared before the

House Un-Anmierican Activities Contmittee of the United.

States Coc a and claimed: this federal constitutional

priyitege. California promptly discharged) him, as the

Court's opinion says, for “insubordination and violation

of § 1028.1 of the Code.” The “insubordination and vio-

lation” consisted*exclusively of Globe's refusal to testify

‘hefore the Congressional Committee; a ground for his

“refusal was that his answers might incriminate him. - It

“Ng hevond doubt that the State took Globe's Sob away |

frotwhin only because he claimed his privile ge under the

Federal Constitution, |

Here, thet, is a plain conflict hetween the Federal Con-

stitution and § 1028.1 of the California Code. * The Fed-

eral ConstituNon told Globe he could, without penalty,

‘

.

On Writ of Certiorari to

——,

2. ‘NELSON ve COUNTY OF LOS ANGELES.

refuse -to incriminate himself before any arm of the

Federal Government; California. however, has. deprive:

him of his job solely because he exercised this federal cou-

stitutional ‘privilege. In giving supremacy to the Cali-

fornia law, I think the Court approves a plain violatior,

of Article VI of the Constitution of the United-States .

which makes that Cofstitution “the supreme Law of the

Land... any Thing in the Constitution or Laws of anv

State to'the Contrary notwithstanding.” I also think

that. this discharge under state law is a violation of the

Due Process Clause of the Fourteenth Amendment in its

authentic historical sense: that a State may not encroach

upon the individual rights of people except for violation

of a law that is valid under the “law of the land.” “Law

of the land” of necessity includes the — jaw, the

Constitution itself.

The basic purpose ofthe Bill of Rights was to protect _

individual liberty: against governmental procedures that

the Framers thought should not be used. That‘great pur-

pose can be completely frustrated by holdings like this.

I would: ‘hold that no State can put any kind of penalty

on ‘any person for claiming a privilege authorized by the

Federal Constitution. The Coiurt’s holding to the con-

trary here does not bode well for individual’. liberty in

America.

ee é

is ve ™ . .

o— *

-

SUPREME COURT OF THE upite STATES

No. 152.—OcTOBER TERM, 1959. -

On Writ of Certiorari to

“the District Court of

Appeal of California..

Second ‘Appellate Dis-

trict.

Thomas W. Nelson and Arthur

Globe, Petitioners,

|

County of Los haere. et ad.

7 | February 29, 1960,]_

. Me Justice BRrENNan, with whom Mr. Justice

DoUGLAS joins, dissenting.

This is another in the series of cases involving discharges .

of state and local employees from’ their positions after

they claim their constitutional privilege against self-

incrimjnation before investigating committees. See Sloc-

_hower<v. Board of Higher. Education, 350 U. S. 531:

Beilan v. Board of Public Education, 357 U. S. 399:

Lerner v. Casey, 357 U. S. 468. While I- adhere on this

matter of constitutional law to the views.I expressed in:

dissent in the latter two cases, 357 U. S.. at 417, it is

enough to say here that I believe this case to be governed

squarely by Slochower, and on that basis I put my dis-

sent. Of course this opinion is limited solely to Globe's

discharge. ,

-California has commanded that its employees answer

certain broad categories of questions when propounded

to them by investigating bodies, including federal. bodies

such as the Subcommittee of the Un-American Activ-

ities Committee involved here. Cal. Government Code

+ 1028.1. Invocation of the privilege against self-incrim-

ination before such a body, in response to questions of

those sorts, is made a basis for discharge.’ In the case

' The Court appears ‘to treat the fact that the California statute

“Is not in terms directed at the exercise of the privilege ‘against -self-

inerimination, but rather covers all refusals to answer, as a factor

¢

a)

.

é

2 | NELSON +. COUNTY OF LOS ANGELES

“of a permanent employee, it is held that discharge may

come only after a hearing at which the employee is given.

at least, an Opportunity to explain his exereise of the priv-

lege... Board of Education v. Mass, 47 Cal. i 494. 304 P.

24 1015. But for a temporary or probationary emplovee.

like Globe, as interpreted authoritatively’ by the Cal-

fornia courts below, the state law requires a dischargesot

the empl6vee upon his elaim of the privilege. wifhout

further “ado. 320 P. 2d. at 978. Opportunity for an

explanation by the employee or for administrative con-

sideration of the circumstances of the claim of privilege

are foreclosed under the state law.

In Slochower, this Court had a substantially identical

situation before it. There a local law which made a

claim of ‘the constitutional - privilege “equivalent to a

muilitating in favor of its validitv. The Court seems to view thy

privilege against self-inerimination as a somewhat strange and singu-

lar basis on which to decline to answer questions put in an invest

gation, or at most as an individual private’ soldier im a large arms

of reasens that might commonly be given for deeliming to respond

Tam afraiud Tomust view the matter more reabstieally. | But, even

if the statute were taken as wholeheartedly at faee value a the

Court does, the consequetice would not be that at Was more reason:

able, but rather that it was more arbitrary. Tt hardly avoids th:

‘rationale ‘of this Court's decision in-the Slochower ease if the State

adds other constitutional privileges to the hst, exereise of which result

per sein discharge.” Such oa statute would be even the more undi-

ferentiating and arbitrary in’ its basis for discharge than the oo

involved in Slochowers And of course the crowning extent of arbi

trariness is exposed y the contention that the faet that dischurgy

would have followed-a refusal to answer predicated on no reason a!

all justities diseharge upon elaim of a constitutional privilege 1

Would appear of the essence of arbitrarimess for the State to lump

together refusals’ to) answer based on good reasons and those by rsed

oon ne reason atall, and make discharge automatically ensue on

"What was struck down in Slochower as unconstitutionally arbitrary

undifferentiating treatment merely among those pleading the seil-

Inerimination privilege—seem~ almost reasonable by comparivon

NELSON +. COUNTY OF LOS ANGELES. | 3

resignation” was struck down as Vielative of the: Due

Process Clause of the Fourteenth Amendinent. Only one

word is necessary to add here to the Court's stateme nt

there of its reason for voiding the provision: “As inter-

preted and applied by the state courts, its Operates to

discharge every [temporary] . 2. e inployee who invokes

the Fifth Amendment. In practical effect the questions

asked are taken as confessed and made the basis-of the

discharge. No consideration is give to such factors. as

the subject matter of the questions, remoteness of the

period to which they are directed: or justification for

exercise of the privilege. It matters not whether the

plea resulted from mistake, inadvertence or le ‘gal advice

conscientiously given, whether wisely or. unwisely. The

heavy hand of the statute falls alike on all who exercise.

their consfitutional privilege, the full enjoyment of which

every person is entitled to receive.” 350 U.S... at 358.

The Court distinguished instances in which the employing

government itself might be conducting | an investigation

into the “fitness” of the’ emplovee, :

As applied, then, to temporary or probationary eni-

ployees, the California statute contains the identical vice.

of automatic discharge for a Fifth Amendment ple:

made before another body, not concerned -with investi-

gating the “fitness” of the employee involved. It. is

sought here to equate Globe's case with those of Beilan

and Lerner. But in the latter cases the Court took the

view that the state discharges were sustainable because

the employees’ pleas of sclf-incrimination before local

administrative agency investigations of their competence

and reliability prevented those employing bodies from

having an adequate record on which to reach sn affirma-

tive conelusion as to their competence cand reliability.

This failure to cooperate fully (styled lack’ of candor)

within the framework of the employer's own “proceed-

ing to determine. fitness. was said to be a) constitu-

4 NELSON v. COUNTY OF LOS ANGELES. *

tional basis for discharge. 357 Y S.. at 405-408; 357

Uo S.. at 475-479: and see 357 U.S., at 410 (concurring

opinion). But here there was not _ aguest semblance:

of any local administrative procedure designed to detér-

mine the fitness of Globe for further employment.*: It

has not-heen-hitherto suggested that the ¢ authorizing reso-

lutions of the Un-American Activities Committee extend

to enabling it to perform these functions on a grant-in-aid

Hhsis to the States. Accordingly there is presented here

the very same arbitrary action—the drawing of an inter-

ence of unfitness for employment from exercise of the

privilege before another. body, without opportunity to

explain on the part of the employee, or duty on the part

of the employing body to‘attempt to relate the employee's

conduct specifically te his fitness for employment—as was

involved in. Slochower. There is. the same announced

abdication of the local administrative body's own fiunc-—

tion of determining the fitness of its employees. im favor

of an arbitrary antl per se rule dependent on the behavior

of the employee before another body not charged with

determining his fitness. °

_Jt is said that this case differs from Slochower herauie

that case involved a determination, -based on his invocs-

tion of the privilege. that the employee was guilty of sub-,

stantive misconduct, while this one simply involves a case

of “insubordination” in the emplovee's failure to answer

questions asked by the Congressional Committee which

the employing agency has ordered be answered. In thie

first place, Slochower did not involve any finding by the

2 In Slachower it was-said, “It is one thing for the city author»

themselves to inquire into Slochower's fitness, but quite another tor

his discharge to be based entirely on events occurring before a feder!

committee whose inquiry was. announced as not directed: at tle

property, affairs, or = of the eitv, or . | . offieral condi’

of city emplovees.” 350; UL S., at 558. This distinction was asserte!

mn Beilan and Lerner. 357 r s » at 40s; 347 «U2 S., at 4797.

\

\

>

NELSON vy. COUNTY OF LOS ANGELES. 3

New York authorities that the employe was guilty of

‘the matters as to which he claimed the privitege. | The

claim of the privilege was treated by the State as equiva-

lent to a resignation, 350 U. 8. at 554.and it was only:

“in practical-effect.” id., at 558, that the questions asked

: were taken as confessed ; *.that is. the State claimed the

power to take the same action. discharge of the employee

froin employment, upon a plea of the privilege, as it could

have taken upon a confession of the matters charged.

The case involved an inference of unfitness for office, then,

drawn arbitrarily and without opportunity to explain.

from the assertion of the privilege. The same is involved

here, and the thin patina of “insubordination” that the

statute exerusts on the exercise of the privilege does not

change the matter. If the State labeled as “insubordina-

tion” agd mandatory ground for a discharge every failure

by an igtoees to respond to questions asked him by

strangers on the street, its action would be as pointless as

it was arbitrary. The point of the direction given to all

cinployees here to answer the sort of questions covered by

the statute must have been that the State thought that

the matters involved in the questions bore some generic

relationship to the “fitness” of the employee to hold his

position, But on this basis the ease is again indistin-

guishable from Slochower, *Tf it is unconstitutionally

arbitrary for the State to treat every invocation of the

privilege as conelusive on his fitness and in effect an suto-

matic discharge, then the command of the State that no

temporary employee shall claim the privilege under pain

of automatic discharge must be an unconstitutionally

arbitrary command. <A State could not. I suppose, dis-

charge an employee for attending religious services on

The ‘opmion in the New York Court. of Appeals abo makes at

quite clear that Slochower was not being discharged as guilty of the

Inatters inquired about. Daniman vy Board ‘of Higher Education,

DOH NOY 382. 538 : ios

6. NELSON v. COUNTY. OF LOS ANGELES.

Sunday, see Wireman v. U pdegraff, 344 US. 188, 192; and

equally: so it could net enforce, by-diseharges for “insub-

ordination.” a general command to its emplovees not to -

attend such services. oe .

The state courts distinguished this case from Slochower

on the grounds that Slochower was a state emplovee with

-tenure. but Globe was 4 temporary or probationary

emplovee not entitled to a hearmg on discharge. On

this basis, it concluded that the requirement that this

Court outhned m= Slochower—that he could not be dis-

charged spso facto on his claim of the privilege. but only

cafter al more particularized inquiry administered by his

emplover -did not apply, 320 P. 2d. at O75. O76. But

this Court has sethimg to do with the civil, service sys-

tems of the States, as such. And Globe does not here

contend that he could not have been discharged without

ao hearing: but he does attack the specified basis of his

discharge. Doubtless a probationary emplovee can con-

Stitutionally be-diseharged without specifieat ion of reasons

at allscand this Court has not held that it would offend

the Dae Process, Clause. without more. for a State to

put its entire civil serviee on such a basis, fo as a matter

of internal polity it could stand to do so. Buterf a state

disehiarged even a probationary einplovee because he was

a Negro ora Jew. giving that expheit reason, its aetion

could not be squared with the Constitution. So with

Slochower's ease: this Court did not reverse the pudgment

of New York's highest court because it had disrespected

Slochower's state tenure rights. but because it had sane-

tioned administrative action taken expressly on an un-

constitutionally arbitrary basis. So here California could ,

have summarily discharged Globe. and that would liave *

been an end to the matter: without more appearing: its

action would be taken-to rest on a permussible: judgment

by fis superiors as to his fitness. But if at chooses ex-

pressly to bottom his discharge on a basis—like that

NELSON > COUNTY OF Los ANGELES.

of an automate. unpartieularized reaction to a plea of

self-inerimination-—whieh cannot. by itself be sustamed

constitutionally, it cannot ese ape its constitutional obh-

gations on the ground that as acgeneral matter it could

shave effected his discharge sige a tninimiun of fort: ality.

~Vetarelti v. Seaton, 3 U. 8..035, 530.

Pu these reasons the ju puke nt as to-G lobe should bie

reversed.

:

wv.

.