Motion to Dismiss or Affirm — Baggett v. Bullitt (No. 220)

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BUBREME COURT. u. & IN THE

SUPREME Cot

| OF THE ~

UNITED STATES

48 1963

-JOHN F, DAYIS, CLERK

-. * Qeroper ‘Term, 1962

- Lawrence W. Baccett, Rocky Bauer, Z. W: cnncanae

Joost E. Bustncer, IsaBet. S. Caro, ‘GIOVANNI Cosrican,

J. G. Dasx, Witiam A. Dawson, Jay Patrick Donatry, ;

Davin M. Eaves, JOHN M. EMLEN, T. SAUNDERS ENGLISH, eng

Victor Eauicn, Roser G. Fuzacie, RONALD GEBALLE, Pat.

rick T. GotpswortHy, Mitton P. Gorpon, ALvin D. Green-

BERG, Ropert-E. Greenco, Gorton GrirrirHs, W. Mary ee

GrurviTus, Isaac HALPERN, ARNOLD Hanson, W. Strutt Hott, . -: -:

Wrutam H. MatTcHETT, Karu P. Mavzey, Trevor J.

Minn, Invixc Mrtowe, ROBERTA MitoweE, Wayne C. cca.

RHOADS Murpuey, Davin S. Newman, Howarp Nostranp,

Gorpon H. Ortans, Simon Orrenserc, Jacx R. PARSONS, =

‘Eugene C. Przzuto, Mervin Raper, Kenner Eyre Reap,

S Max Savetite, Annick Smiru, C. A.- VALENTINE, Leste = ©

° Warner, JAMES B. Watson, WALTER B. Watson, Purr E. :

Wrcox, THeopdke W. Wizcox, Wii1am B. ‘Woour, Pau.

‘ Drerricuson, Jon BriocMan, Borts A. JACOBSOHN, PATRICIA _

J., KELLER, Luce L. Curtis, A.Bert NUJENHUIS, RICHARD

: - Morrii, "Wiis Konlick, ROBERT G. CLARKE, THEODORE

on LaNE, Pet Appellants, rs

‘ Vv.

' Dororiy Buturrr, Josern. DRUMHELLER, Joun L. Kuve,

- be Hersert S. Litrie, AtsertT Murpuy, Joun J. O’ConneELL,

° owe Cuastas ©. Ovscaanp, Hanoyp S. Suaretman, Roneer J,

Wits, Appellees. —

| ON DIRECT APPEAL FROM THE FINAL ORDER OF .A

THREE-JUDGE UNITED STATES DISTRICT.COURT

* SITTING IN THE WESTERN DISTRICT QF WASH-

INGTON, NORTHERN DIVISION .

MOTION TO DISMISS ORINTHE: ~~

ALTERNATIVE TO AFFIRM

JOHN J.’ O’CONNELL, :

: Attorney General,

; _'_, HERBERT H. FULLER, ~

= Deputy Attorney General, :

. DEAN A. FLOYD,. 4

: . Assistant Attorney General. ‘-

Office and Post Office Address: Fenple of Justice, Comehe, | Wash.

/ ‘

STATE PRINTING PLANT, OLYMPIA, WASH

iter nisi MELE SER ENED CISA ELE SANS EOE LOG AIT

IN THE -

" SUPREME COURT

. | _UNITED STATES

Ocronix TeRM, 1962 =’

ns No. ater prone y

Lawrences W. Baccert, =, Rocey Baum, 2.” W. BimmNBAUM,

' Joosr E. Businorr, Isasex S. Caro, Giovanni CosrTican,

J. G. Dasn, Wui1am A. Dawson, Jay Parrick Dona.ey,

—_ > M. Eaves, Joun a EMtEN, T. Saunpers ENGLISH,

sack ice . Futacie, Ronatp Gesaiie, Pat-

rick T. GotpswortHy, Miuton P. Gorpor, ALvrn D, GreEn-

BERG, og E. GREENGO, to Ane Grirrirus, W. Mary

es Wiiuiam H. Meciennn, DY. >: Mamet, tancs 3. a

| Moon, InviNG MrLowe, ROBERTA MroweE, Wavne C. MULLER,

RHOADS. Murruey, Davin S. Newman, "Howarp NOSTRAND,

Gorpon ' H. ORIANS, SImon OTTENBERG, Jack R. Pansons,

' Evcene C. Pizzvto, Mexviw Raper, KewnetH Eyre Reap

Max Savette, Annick Smirn, C. A. VALENTINE, Lesure /

WARNER, James 8. Watson, Watrer B. Wartson,. Puuur- |

Wricox, THropore W. Wu.cox, Wiu1aM B. Wootr, Pavt -

DrerricHson, Jon BripGMAN, Boris A. JACOBSOHN, PATRICIA .

J. KELLER, LuciiE LeCurnis, ALBERT NUJENKUIS, RICHARD |’

Moral, “Wiis Konick, Ronee G. CLARKE, THEODORE: ”

Lanz, . Appellants, .

} Vv.

Dorothy Deuter, Josern DRUMHELLER, ‘ten L. Ke,

Hersert S. Lirrie, Apert Murpuy, JoHN J. O’ConneELL;

Cuartes E. OpEGAARD, vanes S. SHEFELMAN, Rosert J.

~ Wis, : Appellees.

‘ON DIRECT APPEAL FROM. THE FINAL ORDER OF A

THREE-JUDGE UNITED STATES DISTRICT COURT

SITTING IN THE WESTERN DISTRICT OF WASH-

INGTON, NORTHERN DIVISION .

MOTION TO DISMISS OR IN THE.

: mmteinacaateseic TO AFFIRM

B+ 5 7 Foun. J. O°CONNELL,

se uf pe cay & Attorney General.

s ie, ‘eet HERBERT, H.. FULLER,

<a, Deputy Attorney Generat,

‘DEAN A. FLOYD,

° : Assistant Attorney General.

Office and Post Office Address: Temple of ‘Justice, Olympia, Wash,

. ¢

wo : ‘© Page

INTRODUCTION ee — EE SS EEE a ee WO DE ee ee '8

PART I. ADDITICNS AND CORRECTIONS TO EMPLOYEES’ ;

Eon Sn ae ae PE bees eeeeeese teens 4

“The ere

Peer TON bos ol Secs eae oaks EN is ae pele BNW SES 1

Factual Basis of the Case: the “Refusal * * *” ...:.... 17

‘PART I. THE 1951 STATUTE IS NOT BEFORE THE COURT... 18

“PART on. Le ee ee

Oe ee

The Case Law is to the Effect’ That the

Provision of the 1! Act Does Not Violate

CG ee, III ono 0 hn. bes 02-05,04- 6 bavhennds eeéeve- 22

The 1955 Act is Not sn Unconstitutional Prior Restraint 26

The Interest to be Protected is Substantial ..........:.....

PART IV. = ACT DOES NOT VIOLATE THE FOUR-

RET Serer ee reer

The Employees are Probably Entitied vo « Hearing ideas uss 32

The 1955 Act is Not Unconstitutionally Vague .............

The 1955 Act Does Not Involve an ‘Unconstitutional Shift- ‘

ing of Sy GE IGG io ooo hbida wind bEakiusnne vee iu

PART V. CONTENTIONS OF EMPLOYEES, CONSID-

"” BRED 45

Complaint with Prej : 5t

The District Court was Correct in Dismissing the Students... 52

PART VI. THERE IS NO ACTUAI, CONTROVERSY IN THIS

DECLARATORY JUDGMENT. PROCEEDING wer

TACKING AN AMENDATORY ACT....... ee hacen

PART VII. THE 1931 OATH OF ALLEGIANCE STATUTE 5 ieee as

CONCLUSION ...... EAS TELE By Es APSO Cao et CEE A 5S SOP ee %_. fae

APPENDICES OR RS, NaC yo PO biegesues SE ewecw ews cbecctes BB

beaters OF AUTHORITIRS. CITED |

CASES a

Adamson v. California, 32 U.S. 46 ......... aes yee ae Swear 55

‘Adler v: Board of Education, a Rees Ree ete +23, 25

‘Alabama Federation of Labor v. McAviory, 325 Te OG swee 54, 55

‘ Alabama Power Co. v. Ickes, 302 U.S. 464................ Naeleke .. 60

/ American: Communications Assn: v. Douds, 339 U. S. Seer is

Sok Re khe os eh ER EUC ES ND RE LK Naas ea eees oS 40, 42, 46, a

Arkasigns Posi Gil Co. 9: La.o% rel. Muslow, 304°U.S. 197 2.2...

Barenblatt v. United States, 360 U. S Phan Ss Pea oS ae be iene s 25

Bates v. Little Hock, 361 U.'S. 516 ..... os OST exes Lee river 23

Beilan v. Board of Education, 357 U.S. 399 ............ pee 25, 50

ees | 4 Governors of Federal Reserve —— v. Agnew, Ses

| BROS SIRES aes ee aay Gn eR et Irae 37

Braden v. United States, 365 U.S. 431.11... Ppuamebomn eine

Bridges v. California, 314 U.S. 252 ......2.. 6000.6. e seu. weseeees 29

BP " |

. 4

. California, 366 U.S. 36 ; 53

’ Cases, 79 U.S. (12 Wall.) | REFS eeseecsee

Minerals, Inc. v. United States, 352 U. S. 220° sakkd oaks Scice Oe

Lerner v. Casey, 867. U. S. 466... 2. ccc ccc ce ee ees enns sume wae 50

v.. HR § 2 Ree rr earer ekaen sah aewe® §1, 61

Massachusetts v. Mellon, 262 U.S. 447 ............ edentnincwnac

Melieel wv. Colwae, BOB U..%. 100 onion ck cece st vncsccccteevsees <.21

ae Cow Any Advancement ot Colored teak a v. Alabama, wa

Nee Putads yA Line v. Dept. of Public Works, 170 Wash. 217, o

Nostrand’ Be ~~ Pao 53 Wn. (2a) 460, 335 P. (2) 1 Foose hae ie

Dred Old ak ess ene COR S Odd hike ak ae so er 22, 45, 49, 55, 60

Nostrand v. Littie, $é Wan. (2d) 111, 361 P. (2d) 531 ‘ncekiabue cows

Sad ERE SE ee Mle ees cc eee ce 16, 32, 33, 35, 55, 60

Nostrand vy. Little, 362 U. oA are er ne 16, 51, 55

Nostrand v. Little, 368 U.S. 436 .............; epee Mexes 1 6, 5), 55

‘Noto v. United States, 367 U.S: 290 ......... Civ teddies do chee ba 19

Pennsylvania v. Nelson, 350 U. S. 497 ......... 2.64650 505- eee 47/48 .

eye Ss £ EY Rene eee Pee Fee 52, 60

Re IE I eg et PAA ee oa ds aa wkeedel ven Shurks

Seales v. United States, 367 U.S. 203 2... Teo ccc tee eee 19

Shelley v. Wraemer, 386 U.S. F no. cbc cc ewe cc scce wees reek: we

Shelton v. Tucker, 364 U.S. 479 . 2... 2... cc cee eee 25, 26, 27, 28.

Shub v. Simpson, 196 Md. 177, 76 A. (2d) 322, 340 U. S. 861..... 39, 89

Shuttlesworth -v. Birmingham Board of Education, 358 U.S. 101.. 41

Speiser v. Randall, 357 U. S. 513 ................ 15, 26, 41, 42, 43, 90

State ex rel. Robinson v. Fluent, 30 Wn. (2d) 194, 191 P. (2d) 241,

ee Fe SS Se errr fs . 10

State 'v. Gundlach, State v. Forschmiedt, State v.

Otienheinfr,

State v. James, 36 Wn. (2d) 221 P. (2d) 502, 341 U. S. $10

_ (cert. den. in Forschmiedt and James) 341 U. ‘Ss. 937 (rehear-

S| ee eee Tee ERT eT eee MTree eT eee eee eT eee 10

-Sta Foe ames, 36 Wn. Bo 221 P. (2d) 462, 341 U. S. 911 .-

. den.) 341 U. S. 937 (rehearing den.) ...............+> 10

Fae *

ly i s

z $8 .

a v 72 °

~~ af eae 4 o

MS. .

st, . a eee

P Sweeny ¥. ter Pat meer: ¥ :

v. Chicago. 365 U.S. 43-2... 0 2.60.22. eae

[oe woe tere 211 U.S. ESR Sor ee ee nestesrs SE

Nab Pipe Line Co. v. Ideal ne Oy a a

‘United Public Workers v. Mitchell’ 330 U.S. 75...” . | 124,375.54

United States v. Lovett, 328 U. S. 303......... juesesves> Serene ', 43, 44

United States v. Johnson, eae a inte vessessseceess aeewese =

v. Spector 2 _ * eee e eer eer weer wer evr err ere

U us v. W $00 U.8.72 «2s Steee e Seseerseeueenuvane 47, 48

eiman v: Ne Wi ae ME Sa ch nca'san td ccciusene 12, 15; 91 |

est Virginia tate Board of Education v. ‘Sane 319 U. S. 624: . 28

tney v. Me Be FBR pee ce ee Ce eres rere

rilkinson v United States, $08 U.S. 900 0°00000000.0000 EERO 25

Wong Yang . McGrath, 339 U.S. 33 ...... eer rere ae 35

Yates v. United tates, 354 U.S. 298 ..... 2.2... ae een gewdees a See

% 5 s . ,

pe ; WASHINGTON STATUTES’

Laws of 1910, Chapter 38° peck onebee te Scie Reawe en ee Srey eae °

Laws of t931, Ghia 08222000000 0000 Ge i 8, 58,87, 58,

snc id RO ET CRT TET EEL EET YE ie” ia ae

“Laws of 1947, I NE eg 65 So oe ch ricr ta eeh tees eT ee

“ Section 2, p? 1334 SS SR ate ER EYRE ep ep Se Ss cao eka

Se < gaekia ve ea ss aa Ri eFEs kon ebchd ana cance ee

Laws of 1949, Chapter 32 cae bun eck sapetyeted tube uceekianvins 58

_ Laws of 1949, Chapter 242.......... woewe onke Fn pei EE A My Ae GAN ene ae

Section 2 ER AIDS PAPO PSF EL Bey MDS, 4 eres pe Py ee 30

Laws of 1951, Chapter 254 .......... 11, 18; is, 20, 21, ae, 40, 55, e

Section 6 ....... don te PEs Cand Nea sGREoE TOE RES COREE chorus

Section 7 Moai aa ae Gre awh eee CB ag peer te Op ee Peek Opener a

Section 8. a ee ee ee ee a ae ee ee es .

Section 10 ....... CEES ake eto each earn aes hacia licarhnaa 2

Sch ae Ie RE GE SNe 8 a Sea a A 14

NEE ee gas ok baila tee da Ou iG vo da CRE AST Cas he ons 14

EE Sr ae kb Ke RUA EAE CORR ROOT REE Re Nae Se aee yewe 14, 18

PE Pca baie eee MENS Wo Ss d hae een ese hie Oh eee

DOG Se ek di ev esyatereetssv%* FOES e oP REPR NEVE SS gaas

VO A eae dine ei ocee ee eG Ck eh OM & Os Ob eine Uae ee HES 12

ROE: Ge Rs, SRN BIE 5s kb pic ves eae bak ee Re ee eats 12; 15, 83

Laws of 1955, . SEN oo teacus ks 9, 12, 13, 14, 15, 16, 18, 20, 21, 22, .

¢ 25, 26, 28, 33, 38, 41, 49, 50, 51, 55.

IN ke ro 8k ey eect be eens sues tcueeee 15

Laws of 1980, Chapter 234 perio a atlas Gey gs weer |

eR ee ae lp ie eee erate: 33, 34, $5

Chapter 18. 85 Revised Code of Washington ..................... 36

Revised Code of Washington 9.81.083 ............ 00.600 cp cme eeee 18

Revised Code of ‘Washington 9.91060 ............... 0.00 cccue ees 18

Revised Code of Washington 28.67.010 et seq. ....... SS Poke Oks 58

Revised Code of Washington 28.67.020 ........ Lue deh 64 sb weve a se 58

eRe ised Code of Washington 28.70.150 ........... BLES ee arr sea hg 56-

Re ised Code of Washington 28.76.230 ..... li-gye Be op det baxctiwes x ’ 56

Poalreiy a hieeiag he hmemeA then ee 33

_ Rewised Code,of. Washington ee rete v, m

/ exe

FAME EES. ry -

fis é =, t

+ 4 * ”

~ e ?

: * = i z #7 .6

eo .

”

m ft ete Noe UNirED ‘STATES CONSTITUTION. MORE

4 “, Pepe.

‘United States Constitution, First Amendment Oi cnt 17, 24; 25,

United States Constitution, Fifth Amendment’........:. 16, 26,°49,

United 5 Sigler Conmpatien, acne Amendment pode wea

+e . - é 5 y. <

. é i . : ee 4.

2 “MiSCELLANROUS.

. — . . oo

A S A

_ *.° Califotnia Constitution Art. 20, §19 ....00..00 62 eye Paci 91

/ .+. <€ramnton, 43 Mimn. L. Rev. 1025 ................4. chekanbekesen ae

54 Stat. 767, 5 USS.C. § 188) (Hatch Act) cakoeinas pean’ hace neg ee.

Bava, SE Dechy Bi. E. Rev. S08 «+. <>. :- sWsbndude ecu juvnds M2

. House Bill 264 (Washington) ...... GS FE SALI pape Veacea Sauce “hl

a " House Journal, 1949, p. 1095 et seq. (Washington) Sivene cere: ae

House Journal, 1951, p. 23 (Washington) ......, NPR Le ee wee.

te oe Laws bay! erred, 1949, Chapter 86, 1949 ‘Anno: Code of Md. Arti-

, ° c sey Coe weer ese seeweereereeesicceeenateoves ee ¢ ee

Second Report Un-American Activities ia Washitigton (1988). 7”

: hited yet ea cea eRe 5 aes os 16, 28,29, 31

"_ ..Senate Bills 361, 378, 356 (Washington) |.... 00.0.0 .ess-.s/.

“Senate Journal, 1955, —p. 34. (Washington). -...... 8.0.2. 8.002... 12

+. ° 61 Stat.346, Chapter 120 (Taft-Hattley Act) .........5...: th 46, 86"

4i Sutherland, Statutory Construction, 442 § 1937, 3rd ed. 1943..... 21

ey G

7 Sight -g i o iy

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First Report Un-American Activites i Washington 948). 10, 28, 31 -

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SUPREME. om

OFTHE

UNITED STATES,

we! ocrourn Trem, 1962:

_ Laiomatice Ww. Seahorse Roéxy Batizn, Zz. Ww: een,

. Busmncer, [sap S? Caro,. Gaovayni OSTIGAN,

5. G. ASH, WriaM A. Dawson; Jay Patrick Dona.ey,

Davip. M. Eaves, Jouw M. Emten, T..Satnovers ENGLISH,

7 Victor Erxicn, ROBERT Go Rie@ce, Ronarp GEBARLE; Pat-_

Rick T. GOLDSWORTHY, Mixton P. Gorpon, ALvin D- Greén-

4! BERG, Rosert. ©. ‘GREENGO, Gorpon Mary "

a GRIFFITHS, Isaac HALPERN¢ARNOLD Hanson, W‘ Stu. Hott, ~~

- ! Rosgkr W. M

‘2

”

ABRAHAM C. for ooo ag We a KoBLer, Scorr ‘LYTLE,

_Minn, Inviyc Mz+owe, Ropegra MiLowE, ‘Waynt C: Mutter,

Ruoaps Muprsey, Davin S. NEWMAN, Howarp NostRanp:.

Gorpon .H: Orians, Srmon OTTENDER cK Rv, Pagsons,

Eucsve ,C. Pywzvutop MELvViN ‘Raper, KiyajerH Eyre Reap,:

Max SAVELLE;' ‘Annick Smirn, C. A’ VaALenTine, LESLIE *

Warner, Jamss B. Watson, WALTER B. WATSON, Purp E.

Witcox, THropore W. Wicox, WitLiaM B. Wooiy, PaAuL ©

DIETRICHSON, JON MAN* Boris A. JACOBSOIIN, PATRICIA °

J. Keuter, Lucitre L.Curtis, ALBERT NUJENHUIS, RICHARD

'Morrttt, Wiis KonrcK,/ Rovert G. CLABKE, THEODORE

LANE, $ a: Heed Nene

. « ig ae % y ;

Doniyniy ByLurrr,’ JosgrH Dinieuncion Joun L. Kine,

Herpert S. LirrLe, ALBERT Murpeny, Joun J. O’Conynent;

‘CHARLES. E. ‘ODEGAARD, beg S. ‘SHEFELMAM, RopeERT «J:

WILLIs,. : i Appellees.

“OND SECT APPEAL FROM. THE: FINAL ORDER OF a

. THREE-JUDGE UNITED STATES DISTRICT COURT

SITTING IN THE WESTERN DISTRICT OF WASH-

INGTON, NORTHERN caVEnie

“

whe

| ‘ONALD, D: °F. Macge, Henry W. Marer,*< ~

-Wi1am H. Mavcuerr> Kart P, Mavuzey, Trkvor J. Mc- ‘ae

fe bee

oe eee

MOTION TO DISMISS OR IN THE <

_ ALTERNATIVE TO AFFIRM ict

Pursuant to the provisions. of ele Court

Rule. 16 (1), appellees respectfully move the above

“em “entitled court-to dismiss this appeal, or in the alter-

native to affirin on. the gtounds that the epee. and a

sents’ no. substantial fedgral question.

The appellants shall be referred to ‘in this brief °

as “‘the employees” and the appellees as “the regents.”

_ The: jurisdictional statement shall be referred to

oe as “statement.” . aga ar Nat toe

. This Court should be advised that E. A. Adding-

_ ton appears as an appellee-in the caption’ of the

statement in place of Albert Murphy. Mr. Addington

has, in fact, filled the. vacancy on the Board.of Re-

_ gents caused" ‘by Albert Murphy’s death. However,

to our knowledge, no motion has been made changing a

ahe parties. kegs i Sati

Part 1

‘ADDITIONS AND CORRECTIONS TO EM-

‘PLOYEES’ STATEMENT, OF THE CASE

Employees’ Stz+ement of the Case (Statement,

. D 11). contains so: much material that. is frgumen-.

tative, omits so much and, in fact, contains so much

erroneous information ‘that —_ at ‘the. outset,

must corr ect-it and add to it.

Because this litigation has a‘long history, is

ofa degaratory nature, and because the key statute

e e t 7 3 a Shy ; °

; | s; -involved i is amendatory i in soters, we heive included :

me certain ‘appendices. Appendix A sets. out much of

the legislation passed. since World War II relating -

- ae subversive activities: _ Appendix. B' sets out the.

oath ‘forms, | or the ‘statutes-on which the oaths are

based, involved in ‘the — cases’ to come before

oe this Court.

Lieaent BACKGROUND |

‘For these same reasons, it is necessary to'con-

sider chronologically the statutes and the litigation

_ involving subversive activities sihce World War II. —

- Chapter 377, Laws.of. 1955 cannot be viewed in a

"vacuum. It is amendatory and. it is only one of a

rfumber of: acts passed over a period of years since

‘ World.War Ti» It is necessary to examine these other,

acts as well and to- consider their legislative back-

ground. (See Nostrand v. Balmer, 53.Wn, (2d) °

460, 335 P.:(2d) 10, at p. 465 et seq.) (The statute . .._

requiring an oath of allegiance, chapter 193, Laws

"of 1932, will, be considered in Part VII, infra.)

_ In 1947, the. levislature passed the first of these

a measures. (Laws of *¥947,. chapter 287, section: 2, a

p. 1334.) It was‘a proviso in the appropriation act

forbidding public funds from reaching publie em-

ployees who advocated, or‘ who were members of aoe

organizations which advocated, the overthrow of |

the government of the United States by force ex vio-

- _ lence. During the. same session, the -legisiature,

through Houge Concurrent Résojution No.-10 cre-

28,

10°

ated a joint fact-Anding: committes on un-American

activities. (Laws of 1947, p. 1378, set out in —

pendix A, infra.) A petitioner asked this ten

‘review this resolution. State ex’ rel. Robi ;

“Fluent, 30 Wn. (2d) 194, 191 P. (2d) 241, “S85

U.S. 844 (Cert. den.). This cornmittee held ex- .

" -tensive’ hearings, involving a great many witnesses.

Litigation resulted from -these hearings. - State v.

James, 36 Wn: (2d) 882, 221 P. (2d) 482, 341

aU..§. 911 (Cert. den.), 341 U. S. 937. (rehearing

_- den.), State v. Gundlach, State v. Forschmiedt, State

. Ottenheimer, State v. James, 36 Wn. (2d) 918, |

pies P. (2d) ‘502+ 341 U. S. 910 | (cert. den. ee

’ Forschmiedt & Jamés) ; 341 U. S. 937 crenenr ine

AES 5 Bake -

The committee sonia its extensive dndings

and recommendations to the 1949 session of the leg-

Si islature. (House: -Journal 1949, p.. 1095.) This was

“not included in the appendices because of its length. —

-.. On page 1095, the committee. incorporated by refer-

_ ence two lengthy printed reports containing:a stend

graphic transcript of the hearings, the First-Repprt

Un-American Activities in Washington State; 1948,

and The Second Report, Un-American Activities in

‘Washington State, 1948. The First Report and Sec-

ond Revort are a part. of the record i in this case.

In 1949 the Jegisiature’ enacted a proviso, ‘as

. partof its appropr iation act, similar to that. adopted

by the legislature in. 1947. This is set forth in Ap-

pendix A, infra. . During that session four separate

e u /

| bills ‘ilies Laiileted to ‘pibitlions this ‘jeiidiatiee ae

- (House Bill No. 264, Senate Bills.361, 378 and 356,

- ‘this last by title only). Not one | became law.

= In 1951 the Governor in his message to the

legislature urged the legislature to “give thought to

. enactment of. appropriate provisions for the curbing

of subversive activity, and te protect our free in-

stitutions. from pervérsion into weapons of aggres-

"sion against - ‘us ins the . hand of, our enemies.” He

further pointed out that, ._

Biri! Concurrent Resslution No. 10, the

- 'S@- Phirtieth Legislaturé created the Joint Legis- |

lative Fact Finding Committee on Un-American

Activities. Through the labors of thig commit-

tee much was learned of the de to: Which

‘disloyal groups had infiltrated into organiza-

fions of our senior: citizens, into various eco-

- nomic and educational groups. As the result .

of these disclosures, some’ remedial action was

taken but.in the light. of the grave emergency

which we now face, ‘additional action must. be

taken immediately.. Therefore a bili ‘is being

-. prepared calcelated to give support at the state -

level to the ts of our various federal agen-: :

cies charged With the responsibility of combat-.

ting these’ forces of.tyranny and enslavement.

> “>: Crouse Jourees 1951, beginning at

p. 23). ° . . 3

A Bill. was’ ‘introduced by executive request

WW hich later became chapter 254, Lawsof 1951. This

actis very'similar to Maryland’s Ober- Act. (Chap-

see ter 86,-Laws of Md. 1949, Anno? Code-of Md., Article

85A.) “It is set ouit ih full i in Appendix A, infra. Five .

of the orjgihal tw enty-tv7o sections, namely, sections

on Wes ae oe

son 2 ay eoseae ae See

, 6, 7, 8, 10 and 21 were vetoed. The Court will note

that it is a broad act-relating to many matters in

-addition to publié? employees. Section 16, of this

‘act, which requires an oath as a condition precedent

fe to filing a declaration of candidacy for public offite, x a

* "was unsuccessfully challenged in Huntamer v. Coe,

40 Wn. (2d) 767, 246 P. (2d

Ses In 1953, after this Cicely dace in Wieman .

eg .. Updegraff, 344 U. S. 183, the legislature pagsed

chapter 142, Laws of 1953, ainending the definition ~

of “subversive person,” to make the element of -sci-.

enter‘more clear. This is set out in full i in Appendix

ee Ve. 7 -_—

In 1955, the Governor, in his message to the

legislature; pointed out that ** * * the ménace —

eens communism looms’ as .an ever greater’ threat to -

* the future of thesfree world than the ‘isms’ of the

_past. The United States is giving, and must con-' -

"tinue to give, leadership to the nén-communist World.

To do so, with ever increasing confidence and vigor,

our nation must lead from strength, the strength

from within that comes from a free” people, spirit-

vally strong and functioning through the soundest

set of government®] institutiéhs yet developed by — .

man. s* * *” (Senate Journal, 1955, p. 34.)

; During this sessien chapter 377, Laws of 1955, one

_ of the acts in question, was passed. (See Statement;

Appendix 'B, p. 37.)

In the years since World War II, the bilitakin’,

- responding to grit conditions, has er sev everal

. meastthes relating to subversive activities. The ap-

-proach has been pragmatic. It began with a proviso -

in the budget, followed by a fact-finding committee -

which was discontinued two years later. After the

cian aaa Riana Salgetbande aged

passed, which in turn has been twice amended, ‘The .

pattern was formed over. many years based-upor - ~

- experience. No such legislation has béen: passed ‘in.

_the last.eight year It is not “scare legislation” ~.

passed in a moment.of hysteria. There is no perma-

nent fact-finding -committee. (There has been no.

such committee for almost a decade and a half.)

It is not perféct. It is eontroversial. Many doubt .

’* its wisdom. But we shall endeavor to show that it

‘ violates no constitutional provision and that, the

route is open to legislative action.: The wisdom ‘of

the statute is, of course, a matter for the legislature,

not the courts. See Daniel y. Family Security Li fe

Tes. Co., 336U. S, 220, at/p. 224.

Q, 3

THE OaTH e,

“The 1955 stat tute does not prescribe’ iny par-"

ticular oath forms. The state attorney general has ~

provided a suggested form te the state printer. This

suggested oath form has been revised at ‘least twice

"by: the state attorney general. The state printer in

turn supplies the oath forms to. various ,agencies.

Some large agencies print their ewn-vath fornis,

other agencies combine the oath. form with an ap- .

‘ plication gicw Fegrence are kept on file with the em-

—

‘ viens agency. We are unaware of any discharge

based on is to sign the oath. |

is usually called a “loyalty :

oath: "Tt is unfortunate. ‘that this term with its’

~. many-layeted connotations should denote this oath.

While we have used this terminology on_ occasion

_ ourselves because ‘of its widespread currency, this.

should nét: obscure the fact that the oath- is not a

loyalty oath at all but is in fact a negative disclaimer ee

oath. (It is suggested that this court examine oath:

form B. (Statement, Appendix, p.°40) rather than’.

oath form A which is confusing in that it also con-

tains the oath required by the 1931 act.) %

A person | taking ‘the oath swears to two facts:

that,he isnot a subversive’ person as defined in the

Act, and that -hé is not a member of the ‘Communist -

Party or knowingly of any other subversive organiza- .

tion. Only the second fact is required by the 1955 -

_~—Act_The former stems from sections 11 aad R of

: non-sensitive.

the 1951 Act.

Eaaployane blur this distinction and lump the

entire oath inio the 1955 ‘Act, Thus on p. 23 of their

statement, they state that “Oath form B * * *

carries an oath designed solely to satisfy the require-

_ments of the 1955 statute.” ‘(Emphasis supplied. y-

7 Section 13 of the 1951 Act concerns-non-sensi-.

tive positions. No claim is made by employees that

the. positions involved in this case are, or should be,

yee ea

The at requirement contemplated by*section

- of the 1955 Act looks to the present. Thus, it is

“possible. for a communist to resign from’ the Com- --

munist Party today and take’ the oath tomorrow.

Unlike other oath requirements before this court

ae (See Appendix B where several of these oath forms

have been set out), past membership is not involved.

The oath so clearly satisfies the ‘seienter re

quirement as a result of statutory amendment (chap-

ter 142, Laws of 1953), judicial interpretation ({Nos-

*- trand v. Balmer, supra, at p. 460,.470, 476'and 484) —

‘which this court must “actept without question” *

Cramp v. Florida, 368'U. S. 278, and the form of the ae

dath itself, that Employees have made no claim that.

scienter is lacking. Wieman v.. Updegraff, 344 U. S.

‘183 is, aS a result, not applicable.

. The-oath requirement is pinpointed to a -par-

ticular group: Officials and employees of state and

local government. No attempt was’ made to cover

a_ person without regard to his employment as: in

Speiser v. ‘Randall, 357 U. 8. 513.

a”

PRIOR LITIGATION

Fhe 1955 Act was unsuccessfully attacked in *

1955 by two University of Washington professors.

They pr evailed in-the State Superior Court, but the |

federal constitutional questions which they raised .

in that case were decided. adversely to them by the ;

Washington State Supreme: ‘Court. Nostrand v. Bal--

--- mer, 53 Wn. (2d) 460, 335 P. (2d): 10. The plain- -

tiffs there; ‘who were professors with tenure at the

“

3 peay ti ee 6-: eh eR Pek

-. - university, appealed to this Court. This Court va- | __

ee the decision of the State, Supreme Court and _

paved the case for consideration of the question

- of whether state employees required to sign such. _

an oath are entitled to a hearing at which refusal ~

. to“take the oath. could -be explained or defended.’

= Nostrand 2. Little, 362 U. S..474. Pursuant to’ this

remand, the Washington Supreme Courteanswered <

‘ the Yuestion in the affirmative. Nostrand v. Little,

58 Wn. (2d) 111, 361 P. (2d), 551. As to all other ~

_issues involved in the case, the State Supreme Court

: adhered. to the views expressed in its earlier opinion.

- An ai peal was again taken to this Court: On

January 2 , 1962, this Court granted the State At- _

“borney Getieral’s motion +o dismiss. This Court dis-

-“ tnissed the appeal “for want of a substantial federal

“question. ” Nostrand v. Little, 368 U. S. 436.

. The great bulk of the Employees’ “substantial” by

questions relating to the 1955.Act is thus being

“served up to this Court for the third time. Included

“in this group are the First ahd Fifth Amendment

- arguments. Allvof this litigation has been declara-. °

_. tory in nature. No-one, to our knowledge, has re-

fused to sign in the sense that discharge proceedings

could be started against the-one refusing. No one, to:

our know ledge, has been discharged for not signing.

Seldom has there been so much litigation over so fe ?

concrete facts. Ses |

ae 17

ALS “THE REFUSAL TO Sig :

Stripped of biographical data, statements of se oF

tention, background on the University of Washing-

ton, and other matter of less relevance, the operative ‘

facts are few in number. The University has prof-_

fered the caths and gave the recipients until October:

- 1, 1962 to Sign them. Prior to October 1, 1962. the

lower court enjoined the University from demanding

: > the completion of the oaths, this injunction being

' .- presently in force. Hence, as the lower court ‘noted,

“Enforcement of the statutes by University officials,

: “while clearly intended, .is still prospective as a ‘result

of this litigation.” (Statement, p. 9, Appendix.) -

. Thus, there’is nothing preventing all of the. Em-

ployees from changing their mind today and deciding

to take the oath, despite their vehement statements

of intention. (See P.T.O. p.-99.) ‘Thus, the word

: “réfugal” when. it occurs in the pre-trial order and -—

_ in. the ower court opinion must be seen in the light

of a threat, avowal, or statement of intention, sub-

* ject to change at any. moment, not’as an actual

irrevocable-refusal. This being true, the “refusal” -

-of the Employees is not an operative fact. ‘except,

perhaps, in.a Pickwickian sense. In other words, ,

the demand for jnformation,is a certainty (and the

First, Améndment argument should be*seen in this —

light): and the continued refusal and possible dis-

charge with or without a hearing is only a possibil- .

ity: (and the. Fourteenth Amendment argument

should be seen in this light). The question of w *hether

- there is an actual controv ersy is considered in Part

VII, infra.

Eres ‘3 - Part Il. :

THE i951 ACT. ‘AND THE PORTION OF THE.

OATH BASED THEREO , ARE NOT PROP:

EREY BEFORE THIS COURT )

We asstime that only the 1931 Act and the 1955

s Amendatory Act: are being challenged. There is.

some venfusion . in Employees’ Statenient, in this

regard. On page 79 they may be referring ‘to the

1951 Act. On page. 11 they: refer to “several ‘stat-

utes” but on page’ 4 and’ page 81 ‘they refer un- _

equivocally to the 1931 Act and the 1955 Act. This ..

confusion sometimes takes the form of-an erroneous ©

statement as on p. 13 where we learn that the 1955:

Act “sets forth a requirement in addition to those

imposéd by the 1951 Subversive Activities Act: that

‘the official heads of each’ state agency -* °°?

shall require that each and every employee, oF appli-

cant for employment shall state — oath whether

or not he or she knowingly * ° ’ ‘is a subver- ‘

sive person * *. °:” In fact, this. provision _

- , existed for ‘years prior to the passage of the 1955.

Act in the form of Section 12 of the 1951 Act. On.»

page 15 we learn that Row. 9.81. 083 is part of the

1951 Act while in fact it is part of tite 1955 Act. On

page 88 reference is made to 9,91.060 which relates

to leaving children unattended in a parked auto--

’ mobile. °

oa While the last tat errors are ‘admittedly oe) ;

nical’ in nature, thuch of the; “confusion as to the

y ie

Se é ake Paap

- statutes: involved, ‘being endemic § in the Stateinent,

is ndt so simply‘segregated.

| Another aspect of this confusion is ‘presented

by the Employees’ treatment of criminal sagictions.

| One is protected against ‘the imposition of a

’ criminal sanction by a panoply of constitutional -

_ guarantees which ‘are not applicable to ‘the i imposi-

tion of a civil disability such as loss of public em-

a. : &. ployment. This is true even though the latter may,

on occasion, be more ‘drastic than the former.

Quite apart from the crime of perjury, the 1951

statute contains certain criminal provisions based on“

knowing ‘membership in.a subversive organization

~ Which; to be candid,: would pose constitutional ques- ae

tions if they were before this Court, in view of Noto ~~

_ v. U. 8.3 367 U.S. 290 and Scales v. U. S., 367 U. 8,

203... Employees have made ‘frequent reference. - to

them as if they had somehow attainted-the statutory

provisions in question. (See Statement, pp. 13, 16,

_ and p. 54 where Employees cite the criminal cases

. of Scales, Noto, ‘both’ supra, Yates'¥. U. S., 354 U.S.

298; and Dennis v. ‘Uz S., 341 U. S. 494, as authority.

. for the proposition that 4 civil disability may not’ be

imposed. See also pp..47-49 where the criminal sanc+

tion is blended with the civil sanction. The question

is not whether. a state, has “arty power to prevent”

something.. The question is whether a:civil disability ae

can be imposed ih certain situations.

In addition to creating confusion, Employees’

failure .to challenge the 1951 Act directly creates

: 5 id

ace : wii 20 ~w

ieee serious questions. First, can a8; on this

“5 record invalidate the 1951 ahr Second, —,.

that the Court cannct, ‘how would invalidation of the

" 1956 Act affect the 1951 Act?

‘We submit that the Court okanet inivalidate the’ Bee

1061 Act. Rgnployees“have challenged % an adminis-

trative measure, namely, the oath as formylated, a

without challenging ‘the: statute upon which the ad-

ministrative action is based. While this type.of chal-_

‘lengeis comrfon: enoughw here adtninistrator has,

exceeded the ‘bounds. of. his: authority, and is not.

acting within the scope of his statutory authority,

itis surgly, a rarity. where, as here, no claim is made.

that thé. action of the administrator i is without statu- :,

tory foundation. To. the contrary, they have, by ©

- way of argument, attempted , fo challenge. the defiiiie

-tional provisions of ‘the 1951 Act (Statemenit, p.

1002). It wotlld be a bizarre’ decision which struck:

down an administrative méasure clearly baséd upon -

an urfchallenged statute ; it avould be an even more

bizarre decision which invalidated. a statute not Be-

_ fore the court on the basis of, an administrative act.

A portion of the oath is sé directly bdund to the 1951

. Act, as pointed out earlier, that ‘to chaljenge* this

_ « portion of the oath,: the Employees must challenge’.

the 1951 Act. This they have not dene. Thi they -

| eannot do for two. reasons. : -

; * In the first plaee, Employees did not. challenge

the 1951 Act in. the lower.court and may riot do so_

for the first time on appeal. Shelley y v. Kraemer, 334

| page 220: hee eight

2g re 3 : . .

, - - °

. 5 .

¢ ° .

‘ . tp

vo , &

: ° ° wk oe

\ e r . . 5 .

. oe

: 21 ee. Ee

; & ee, . wtf

e iver.

"US. 1. In addition, Employees have not directly.

a challenged: the 1951 Act in their appeal to this Court. -

The questioft is thus not raised. U.'S. v. Spector, 343

p, - Us B. 169. The. question, at best, lurks in the record,

and this ig not sufficient. ‘McNeal v. Culver, 365°

S58 U. S. 190. This Court: is rightly reluctant to pass

27. pon. constitutional: issues. which are> not squarely

" *. presented by the ecord:. Arkansas Fuel Oil Co, v. |

La, €x rel. Muslow, 304 U.S. 197. a

a The other question to Be ccieaidanesti| is, on

. Act?. 2.

' The general ik su} iar by Washington

- cases is: ak the--amendator# act. is wholly ‘invalid,,

“the statute sought to be. amgided is held to remain

in full force. and effect. 1 Sutherland, Statutory Con-_-

struction, 442, § 1937, 3rd ed. 1943. See North Bend

Stage. Line vu. Dept. Publie Works, 170 Wash. 217,

16 P. (2d) 206, where the state highécourt said | “2

‘These rie: as s unamended,

provide for review of orders of ‘the department

si * *

€ superior court substantially as, by -these

pide they prov ide mes such review in

‘ this <— rise : "9

| And at page 228. after ‘holding the’ grants of

. .. . iret appeal. from the depar tment to the state su- .

amended statutes “* - y Ye: remain unsuperseded

: and unrepealed by chapter 119, Tgqws of 19315 p. 363) .

? .

‘

> preme cqurt, unconstitutional, the court said that the —

‘. -

: would invalidation of the 1955 Act affect the 1951 |

if %

if Swe WG ee . - 992

teal nasal -eiting Corwin Frvestgrent Co. v. White, 7

2 166 Wash: 195, 6 P. (2d) 607.

. Indeed, in the previous a BEM at Nostrand.

v. Balmer, supra, the Employees admitted as much

poner on. page 85 of their brief t6 the state high court °

“they unequivocally stated that, “To declare the entire

_ 1955 Act unconstitutional al is toy leave the 1951:Act

. totally” effective and to ‘Gliminate the problems = -

" interpretation.’ we ae $

Viewed in this light, the Employees’ siliaidens

* to the 1951: Act apd to the portion of the oath derived

~ from the 1951 Act seem indeed wide of the mark.

- Part nig

one 1955 ACT DOES’ NOT VIOLATE THE ©

‘IRST AMENDMENT

THE CASE LAW IS-QVERWHELMING TO THE EFFECT

THAT THE DISCLAIMER PROVISION .OF THE 1955

Act Dogs Nor VIOLATE THE First AMENDMENT © >

This Court has ‘decided no one. case involving

every . issue and every. fact presented_ here but the.

* ease. law sup rting Regents’ position is-so. strong

that. they almost have an embarras des richesses. The

strength of precedent favoring the Regents is even.

apparent from the Employees’ Statement i in that they ~

ust make fine distinctions, distinctions without

meaning, or ask the Court to disregard prevedent..

_. This‘lack of case authority does not.mean that

the appeal is frivolous. It does mean, as we will

endeavor to show, that the Court must pverrule, or |

pee 3

BST nike 23

worse, ignore several cases to hold-for the aitneabieiions ne

on the merits. It does mean, also, ns rang es

ry presented are not substantial.

. Thus, Employees write off Konigsberg ' v.: Cali

fornia, 353 U. S. 252, and 366 U.S, 36, It re Anas-

taplo, 366 U.S. 82, and Adler v. Bd. of Ed., 342 U.S.

485, as having been decided on the basis of “priy-

ilege.” (Statement, p. 41.) It is true that, taken

alone, certain language on p. 492. of Adler and p. 90 .

of Anastaplo seems to speak in- terms of “right-

privilege,” but the cases certainly are not decided - __

en this basis. This Court did not décide that a state -,”

could deny the right to practice law to-members.of -°

a particular race or religion on the theory that state

employment is a “privilege” which could be limited

in any way, however arbitrary. —

Nor can Employees - successfully . show that

N.A.AC.P. v. Alabama, 357 U. S. 449, or Bates v.

i Little Rock, 361 U. S. 516, corrodes Adlér.u. Bd. of --

Ed.; 342:U. §S. 485; for underlying the N.A. A. CP.

decision, where this Court held that a state may not

r compel the disclosure of N.A.A.C.P. membership~

lists, is the prenfise that the nature of the organ-

ee: ization is decisive. The Court was careful to dis-

tinguish Bryent v. Zimmerman, 278 U: 8. 63,

upholding a New York statute -requiring disclosure

‘ of Ku Klux Kian membership.. » .

*Gerende oy. Bd. of Superyisors, gat U. S: 56,:

involving, as “it does, _the summary’ imposition of a

civil disability upon a refusal to take an oath is Fs

fe)

F 4 ‘ : 24 : ’

such strong siete weateak Silesia’ ‘position

that they are driven to relying upon the differences .

Zam,

. in the wording of the oaths. (Statemerit,. p. 39)

Parenthetically, on the same page, Employees er- _

roneously state that the language eran: subversive

person in me Ober Act is identical. to that in ‘this

_ ease. |

Beiian v. Ba. of eg 357 U.S. 399, is

certainly authority against Employees’ position on

_ the First Amendment argument, although it‘is not -

$ applicable to the procedur al due pricey argument.

(Statement, p. 39) aca

" Most startling of all is Employees’ attempt ie

"distinguish Garner v. Bd. of Public Works, 341 U.S.

716. On page 38 Employees claim “* * * this

Court did not explore: and ‘adjudicate the First

Amendnient question presented by this case.” The

" fact is that thé petitiovfers in Garner argued the —

E First. Amendment points extensively. But this Court,

before epming to grips with the bill of attainder

point, conchided on page 721 that, “This Court has

held that Congress °may reasonably restrict the

political activity. of federal civil sertice employees

for such a purpose; United ,Public Workers v.

) Mitchell, 330 U. S. 75; and q State is not without

power to do as much.” Of course, Mitchell revoly ed

largely around a First Amendment argument and .

the court, discussed it extensjvely begining on p. 95 D.

It was not necessary for tite court to repeat this :

- entire discussion i in‘ Garner.

Ep.

ig , Hence, Employees’ attempts to distinguish a

foregoing cases are, we submit, unsuccessful.

_~~May. the state make. the in liry required by

. hi 1955 Act without violating the public employee’s

‘ First Amendment rights? The answer mutt be in

the affirmative. Adler v. Board of Education, 342 :

US. 485, Beilan ». Board of Edueation, 357 U. Sas

* 399: Nor does Shelton v. Tucker, 364 U. S. 479 cast:

a shadow on: these cases; fer/in that case, on page

485, footnote 4, this Court said, “The actual holdings ©. .

in Adler and Beilan, involving the validity. of teach- -

ers’ discharges, are not relevant to the present case.”

. (See our discussion of thise case and Sweezy v. New -

: Hampshire, in Part IV, infra. ) }

The. Employees’ only: hope is for a reversal of

- these cases. But the trend is against them. Barenblatt -

v. U. S., 360 U.S. 109, 125-184; Wilkinson v.-U. S.

365 U.S. 399; Braden v. U. S., 365 -U: S. 431; Com-

munist Party v. S.A.C.B., 367 U: 8. 1, 96-103. The

lower court was correct: in: pointing out that, “It

cannot be questioned that a state has power. to safe-.

guard the public service from disloyalty ; and the

right of the state to inquire ofits employees | con-

‘cerning their loyalty’ has been récognized in a.

number of cases.” (Statement, page 10, Appendix.)

' Regarding the forri of the inquiry, the lower

court held (Statement, .page. 13, Appendix}, that

there is no violation of. Firsg-

| mendment rights.

. simply because a written form \s4used rather: than (

—— ne

ee ee

questidn is whether the written form to be signed

is limited to the area of legitimate state concern. The .

lower court added, “In ay institution as large as

the University of ‘Washington, to conduct personal

interviews of all present and prospective employees

concertiing their loyalty, would be administratively

burdensome and might be subject to abuses. In lieu --

of such _inguiry the university officials. have elected

to require a sworn statement, narrowly limited to

the precise matters of legitimate state concern. So

‘limited, the oath serves the same purpose as indi-

vidual inquiry.” (Statement, pp. 18-14, Appendix. )

ae First Amendment argyment of whether the

inquiry can he made should: be treated separately

from ‘the Fifth Amendment argument of whether

dismissal can ‘be ‘carried out on the basis of- the

answer or lack of answer given. Sn See

THE 1955 Act Is NOT AN UNCONSTITUTIONAL PRIOR

RESTRAINT :

Citing Shelton v. Tucker,. 364 U. S. 479 as ©

authority, Employees claim that the 1955 Act is

void as an unconstitutional prior restraint on the

' -grounds that thé legitimate state interest could be

more narrowly achieved by less drastic means. It is

not clear whether Employees are relying on Speiser

v. Randall, 357 U.S. 533, as well, when they cite it .

in their Statement on: page .77. If so, this feliarice

‘ig misplaced for on page 517, footnote ed this Court |

stated: Sess a Es

eee Ronee te 27

“Appellants also argue that these pro- z

isions are invalid *- *. *. as invading lib-

erty of speech * Qur disposition | of

the cases rnakes consideration of these questions

3 unnecessary.’ ” .

-A prior restraint is, not, ipso ‘facto, unconsti-

tutional. Times Film Corp. v. Chicago, 365 U.S. 43.9.

But it is true’ that this Court will not allow a state’

to abridge certain liberties where no substantial.

state interest is involved, and. where the attempted

abridgement i is done in the guise of combating sub- -

yersion. Thus a declaration that an Arkanéas statute

is justified ‘because. of the right of a state to investi-

gate the competence and fitness of those whom it:

. hires to, teach in its schools cannot be used as a’cloak

to cover the attempt of a state to discover whether.

a teacher is a member of the N. A.A.C.P. Shelton

v. Tucker, 364 .U. S. 479." Nor can one making in-

_ . quiry sureutint to the investigative powersgof, a

‘ legislature,.and again in the guise of combating

_ Subversion, force an answer as to belief, abstract

advocacy of Marxism, and the like..Sweezy v. New

Hampshire, 354 U.S. 234. |

Certainly Shelton is vot. authority. for the -

preposition that every statute and oath are invalid

where ,it is possible in any regard to. narrow the

“seope of the-statute or the oath without impairing.

_ its effectiveness. To go to such extremes would be

to place an impossible burden 'on the legislative

bodies. Not one of the daths upheld by this Court

would be valid if this ‘Were the. test, sinee ‘a few ~~.~

. 2

pate ing.

2 ae "28

moments | eeliestion are changes which would

ities them into sharper focus.

The gath and the statute involved in this case

are a far ery from the statute eye in Shelton.

THE inrenest To Be Prorcrep Is SUBSTANTIAL s

- Perhaps the most crucial part of Employees’

First Amendment argument concerns the lack of a.

societal’ interest to justify the 1955." Act. _The

Employee? must show that the societal interest is

~. Ketivities. (The Joint Fact-Findin ing Committee on

net substantial, as in West Virginia State Board of

Education 1: Barnette, 319-U. S. 624.: Employees —

must somehow: get around the two reports of: the

Joint’ Fact-Finding Committee .on Un-American

Un-American Activities was omitted’ from ‘Em- -

ployees’. index, but is discussed in their statement

_ beginning .on p, 65.)- ‘This they have attempted to

~ do. by claiming that parts of the report are false

(Statement, p. 64) and by claiming that the-lapse

of six years from the -report’s filing to the 1955 Act

is too long for the findings to support the 1955. Act

(Statement, ’p. 66).

_ The Second Report Un-American Activities: in

W ashington, 1948, deals, in the main, with’ the

re University of Washington. It-would-serve no pur-

_ pose’to belabor this point. It is'a part of the reeord

and the Court may: there examine not: only. the

* testimony—of - the. ‘six faculty 1 members who were.

' discharged or ‘placed on probation, | but also: the

pes '

REO

testimony of the deiner veterans sincebialing tiiseend

° eee p. 804), the couple who ran‘a legitimate

theater near the University (Sétond Report, yp, 265,

267), and .the attorney who described how. his fon

"was influenced by faculty members (Second 22e, ‘

p. 298).

There is no blanket requirement that every —

piece of legislation dealing with subversion he pre-

- ceded by legislative findings, but it cannot be doubted

_ that valid findings strengthen the legisiation when

_ its constitutionality is called into question. After

reciting certain legislative findings on the nature

of the communist movement too lengthy to be re--

__ ported here, this Court in_ Communist Party v.

§.A.C.B., 387 U. S. 1, 94, said:

— “Tt is not. for the courts to re-examine the

validity. of these legislative findings, and re-

ject them. See Harisiades v. Shaughnessy, 342°

US 580. They are the product-of extensive in--

vestigation “by committees of Congress over

more than a decade and a half. Cf. Nebbia 7.

ew York, 291 US 502. We certainty cannot |

gmiss them as’ unfourided or irrational im-

zinings. See Galvan v. Press, 347 WS 522;

~ rican Communications Assi. v. Douds, 339

382. | .. ” _* of

of state tegislature which come to ‘the Court “en-

~ eased in the armor w rought by prior legislative

* deliberation. ” Bridges v. Calif, 314 U. S. 252, 2617 -

-Conceding, arguendo, - that conditions could

change to such a degree as to vitiate a legislative

30 :. 3

gees we need not’ belabor | the peint that the ;

. "dangers resuiting ‘from the communist movement

» yeferred to in the Joint Committee’s report (House

Journal 1949, p. 1095 et seg.) have not disappeared.

This court has, in effect, recognized this fact by de-

ciding the Communist Party case, supra, on June 5,

1961, although it was based on legislation, dating

from 1950 and.1954. Subversive activities legislation

was passed, in 1947, 1949, 1951, 195% and 1955. _

Argument that any of titis legislation is invalid-be-

cause additional legislative findings were not made

after 1949 seems strained, to say the least.

oe Employees claim, “* * :* ap the District

Court failed to note, the 1949 session of the legis- ~

lature enacted no ‘anti-subversive legislation.” “it

was not until 1951 * * - that such legislation

was enacted.” (Statement, p. 66). This is erroneous

in view of section 2, chapter 242, Laws of " 948, set”

out in Appendix A, infra. ;

- But Employees. have even more difficulty ‘at-

tacking the’ validity of: the ‘legislative findings. ,

They claim, “At the time when that [1949]

legislative session was beginning, the University of .

Washington was concluding its separate and im-.

and’ otherwise, who might have’ been subversive

came only after the public disclosures of the Joint -

Fact-Finding Committee, which held hearings dur-

ing: 1948, Employees show no action on. this score —

eo.

in the years preceding 1948, nor do they aut that ;

* any action would ever have been taken j in the absence

of the legislative prod. aes

_A more surprising statement is found. later. on

the samé page: “During the hearings of the legis-

lative committee, only ten members of the University"

of Washington faculty of [0 ‘full-time members,

were named, but not proved, as "being or having

_ been, members of the communist party.” In view of

— the admissions of faculty witnesses on past member- **

ship (Second Repert, 305,199, 18, 131, 104, 243).

the statement is plainly erroneous, if. the word |

“proof "is still to haye any ‘Meaning. :

+ ‘

Eimployees apparently feel that - six faculty a

. \ members: dismissed," or .placed on probation, is a -

\ modest number. That the committee felt the number“ _

3 significant is apparent from the féreword . to the |

: Second Report. 7 Be

' "+ From this sort of argument, Exaployees. con-

clude that it is. . “extremely doubtful’’ whether the ri

legislature . in 1949 could “convincingly show a -

- substantial relation ‘between the information sought ~

- and ‘a ‘subject. ‘of overriding and compelling state

‘interest. me (Statement, -p. 66.) *

The’ ‘Reports of the Joint Fact-Finding Com-

mittee reinforce what this court should decide ‘in .

any event: There is an interest of the state in self-

‘ preservation. which justifies: the action oft the Keeis-

lature.. ° : Bae toe & a ;

ee? .

at :

: 32° ae

* Employees ‘knock down: the same straw man

they knocked down in their trial court brief when |

«they say, “It is ‘no answer to argue that ‘state em- | s a

ployment is a ‘privilege’ and not a ‘right’ and then ,

infer that the infringements:here are permissible ° oe

because they infringe = no rights. ad (s Staterhent,

p. 54. ) =

Regents gave no such answer in trial court and

give no such answer here. (See. the trial court’s

memorandum opinion, Dp. 24, Appendix, Statement. ')

Certainly, the wealth of material showing a sub-

stantial: interest to be protected. makes any such

\ argument unnecessary. | 3 \ :

Part IV

_ ‘FOURTEENTH AMENDMENT

THE EMPLOYEES ARE PROBABLY ENTITS#2D TO A

3 HEARING. — /

' After. Nostrand v. Little, supra, was remanded

by this Court to the Withinaton high court for de-

termination of whether the professors in this case

Yrould be accorded a hearing, counsel for the pro-

-_fessors argued that under law no hearjng could be

accorded to the professors. The state attorney argued -

to the contrary. In its decision the court held: ;

‘ “We are of the opinion that the provision in

the subversive activities act to the effect that re-

fusal to”take the oath ‘on any grounds’. ‘shall

be cause for ‘immediate termination of employ-

ment,’ should not be interpreted in the ¢ase

before us as menting that a full prctoeior hav-

24 . . sf € 4 . z : F.

‘ &. gee - 6 »

b- =

7 >", — «B83 ae

ing tenure rights under his contract of employ- .

_ ° merit is deprived of the right to a.hearing as -

*. -* university. In othey’ words, if the professors.

_ .-? ‘should refuse’to sign the affidavit (which they _

, «+ have not yet refused to'do), they, in our opinion, ~~

~ will be entitled to the hearing before the tenure —

* committee and to the other procedures relating ‘*:

. _.; ., to termination of employment prescribed in: the

“*» university’s rules and regulations, set forth in __

$s the appendix to this opinion.” §8, Wn. (2d) ate ,

pssl. | ea ae

. The matter of whether a person without tenure

‘ would ‘be accorded a hearing was not before the

court. ee ee A a te

-_ Three factors make it likely that, under Wash- .

ington law,; the Employees Anvolved;in this . case ?

would be accortled a hearing should they refuse to

sign and request a hearing. These three factors are:

-the court's decision on remand in Nostrand v. Inttley

supra ; the existence of two important pieces of legis-

lation, the Administrative Procedures Act (chapter

234, Laws of 1959) and the State Civil Service Act

(chapter 1, Laws of 1961); and.the administrative |

practices followed by state .agencies: of allowing ‘a

‘hearing, even though a hearing is not specifically Aas

provided by. statute. PR Bis :

eo -

on hg With regard to the first,of thése factors, the |

' + veal thrust of Nostrand v. Little, supra, is the fact“

that the court there held that a professor with tenure

could not be discharged “under the 1955 Act alone

“ “and without reference to any other statutes. If the

——.court tonstrued the 1955 Act with RCW 28.77.120 Te

+ : a ck, Spa

nate: reasonable notice.

} ;

2 q .

34 Ree

3 i"

’

and 28.77.130 there is every likelihood that it would ::

consider other statutes if the last quoted statutes. -

were not appligable, as would be the case of a person

“ without tenure. 9.

With regard to the eset Mites the Court

_ by allowing : a hearing. The first of these filters.is the

tenure code. This would afford many: of sa Sesgcat

_ ployees involved in this appeal a heaving...

- The second filter is the Civil Service ave ‘It is :

true that according to section.7 of the Act the pro-

‘visions-do not apply to academic personnel of the in-

‘stitutions of higher learning as well as to certain

. . other employees. Thus, we cannot say for a certainty

that it would not apply to certain non-academi¢

- _ personnel such as Annick Smith who is an assistant 7s

‘editor ‘of the University of Washington Press. The :

Art has never been construed in this regard. — me

* The third filter would seem to be “fine enopgh é

_a hearing by some other statute. This is the State

Administrative Procedures Act. The Washington Ad-

‘ministrative Procedures Act in section 9 provides in

part as follows: “In any contested case all parties —

shall-be afforded an opportunity for hearing after

_ contested case as‘““* * * a proceeding before an

agency in which the legal rights, duties, or privileges

of specific parties ‘are’ required by law or constitu-

Se)

_ -ghould be mindful of the-fact: that there is a series :

of “filters” desi esigned’ to guarantee due’ process of law

_* * *” Section 1 defines a -

St.. «

: tional right to be determined after a an agency ‘rear

ing. ” (Emphasis supplied.) :

: Gnece’ v. ‘State of Washington, 58 Wn. (28): Fes

467, 364'P. (2d) 225; a case decided en banc afew _

_” months after Mostrand*v. Little, supra, indicates that. :

_/ under the State Administrative Procedures:Act, such. _

.an employee would be provided a hearing if the lack*:

‘of a hearing would deprive him of a constitutional

right. The court seemed to be following the lead of

, this Court. (See Wong Yang'Sung v. McGrath, 339° °°

U.'S..33.) Moreover, this Court will assume that a.

statute will be interpreted by the highest state court

in sucha way as to ayoid raising constitutional prob: »

lems where sucli interpretation is possible. Fox v,

_ Washington, 236 US. 273.. Se a ‘ ,

« Itis true that the Siihoees ar gue on pages 96 -

“and 91 of their Statement. that under Nostrand v.

Little, supra, neither the Civil Service Act aor the

‘the Administrative Progedures Act could be used to

So ” Jaccord the employees in this case a hearing but,

ry @ &%

|, poms

om)

in fact, the question of whether nontenured personnel

.could utilize either of these ‘acts was not before the

~~ court. On page 121 of Nostrand v. Little, suprg, our

high court tried to preclude such claims by saying,

“We, of eourse, limit our congidération of the pyob-.

lem to the facts before us.” ~

In regard.to the third fhetor, state agencies have, f ;

upon the advice of. the. state attorney general, : ee

\ numerous occasions accorded: a\hearing to a party. ° 7

. on the basis, of the Administrative Procedures ‘Act.

, e

. t

meee 36. ae *

_ where no’specific hearing is provided by statute.“An

"example of ‘this is In re Christensen, No. 34575.

: Thurston County Superior Court, State of Washing: ° _

_’ ton. In this case the director of licenses granted a

hearing to an applicant. who ‘had been refused 4

‘broker’ s license even though such’a hearing was. not '

specifically provided by the Real Estate Licensing’.

‘Act (chapter 18.85 RCW). If an individual at-

tempted to resign from a subvgrsive organization

by. coinmunicating ' with one of the members, it is

possible this individual would not be sure whether

his resignation was effeetive, many of ‘such organiza- _

‘tions not having membership cards. If such an indi-

- vidual. were to ask-for'a hearing so that he might

explain the steps he had taken to attempt to resign

it seems most probable that the hearing would be

‘allowed under Washington’ law and administra-

tive p: -actice. :

With regard to the hearing issue our burden

is light. We need not show for a certainty that a

hearing would be granted. We need only- show that

under the statutes there is a possibility. “Wise ju-

‘ dicial administration counsels that decision of the:

federai question be deferred until! the potentially

, controlling staté law issue is ‘authoritatively put to

rest.” United Gas Pipe. Jamas Co. v. Ideal — Co.,

369 U. S. 134, 186.—

Since a hearing. is probally accorded under

Washington law, it is probably not necessary for us

“to rely upon cases upholding the imposition of a civil

Z &

‘ is : ’ 37 | ; :

“disability with no right toa henzinn such as Boat -

’ of Governors of Federal Reserve System v. Aqnew;

329 U. S. 441, Gerende v. Board of Supervisor of

“Elections, 341 U. S. 56, United Public Workers v.

-. Mitchell, 330 U. S. 75, and, American Communica-

tions Association v. Douds, 339.U..S: 382. This last

‘cage, in. which this court upheld the validity of the

-non-communist ‘disclaimer’ of the Taft-Hartley Act.

(61 Stat. 136, chapter 120) .is so plainly against.the

Employees that they have made little we to dis-

_ tinguish it. ck Dox

The difficulties which the Risplajent have ens.

| countered i in arguing that no hearing will be accorded °

them are evidenced by their argument. Thus, on page

3 of their Statement the Employees quote a pertion

. a the District Court’s opinion out of context and .

- give the word “substantial” quite a different mean- —

ing. Certainly the District Court was not passing

upon. what would be a substantial question for the

purposes of this appeal; rather from the context of

the entire opinion it is apparent that the District

Court was pointing out that. an oath requirement

which would not allow for a peeeeny is of question-

able constitutionality.

The difficulty is further maaileied by the man-

_ner in-which the Employ ees have emphasized certain

~ portions of the Regents’ statement. A reading of the

document simply indicates that the Regents intend |

to follow the law, it does not.indicate that under the -

law no hearing would be accorded an employee. Like-

—

wee

__, Wise on page’ 87, the Employees havé italicized the _

words “on any grounds” found in |the 1955 Act.

The effect would have been very. different if they had

- italicized the following three words, \to wit, “shall

be. cause for immediate termination *

_ (Emphasis supplied.) There ig, of course, a great

difference between a matter being ‘a ¢ause for im-

_.mediate termination and a matter which must result

absolutely in immediate termination. Finally, the

difficulty Employees encounter has forced them to_

_ claim that our state high court has gone so far as

to allow only a sham hearing. (Statement, pp. 86,

89. ) This our court would. not do and has not done.

- ‘THE 1955 Act Is Nor UNoonstitut IONALLY VAGUE

In dealing with this question (Statement, start-

ing en page 100), Employees’ difficulty comes not —

from stating the general rules but from attempting

' to apply the genera! rules to this particular case.

. ome oath required, and the statutes on which

it is based, are not unconstitutionally vague; _the

terms used therein are susceptible of objective: meas-

is before the gpurt in Part I and that discussion Ww kn

not be repeated here. ) \

| Employees have quoted no cases which militate

against the validity of, this oath. Surely the reference "

pone Cramp,v. Florida, 368 U.S. 278 on page 101 of

the Statement was only to set forth the genera! rule;

for thé, oath involved in Cramp can hardly be com-

pared with‘the oath in the present case. It provides

o * See.

39 see

in part,“ * * * that I have not and will not‘lend .

my aid, support, advice, counsel or influence to the

. Communist’Party * * *” (This is set-forth |

more fully in Appendix B): The.Court, itself, seems —

to have é stinguished. this case from Cramp when,

on page. 286 it pointed out that:

“The provision of the oath here i in ‘iniieation.

it is to be noted, says nothing of advocacy of

violent overthrow of state or Federal Govern-

ment. It says nothing of. membe or affilia-.

_ tion with the Communist iy inoieg = present.

- The provision is ee ee n these or,

any other terms susceptib objective meas-

urement. ”. (Emphasis supplied. )

we This Court denied certiorari in a case involving

. alleged vagueness of the Ober Act which, as pointed

- out earlier, i is very similar to the 1951 Act. Shub v.

Simpson, 196 ‘Md. 177, 76 A. (2d) 322, 340 U. S..861. |

_ Also significant, is the fact that this Court affirmed

Gerende v. Bd. of Supervisors, 341 U. S. 56, a de-

cision based upon the interpretation of the Shub in-

terpretation. But even more significant is the fact »

_ that this Court has affirmed prison sentences—a fat --

_ ery from this declaratory judgment procedure—

‘stemming from statutes which make these upon

which this. oath-is ‘based seem clear by comparison.

While to set forth these statutes would make. this

motion unduly ‘prolix, the Court is referred to the

statutes involved in Dennis v. U. S., 341 U. S. 494;

Gitlow v. N.-Y., 268 U. S. 652, and Whitney v. Calif.,

274 Uz S. 357. Added to this is the fact that this

’ Court’ refused to strike down oaths, and ‘the statutes

“upon .which they are based, which are.much more

questionable than those in this case: (See. the oath

forms of Garner v. Bd, of Public Works, 341 U.S

716 and American Communications Association v.

Douds, 339 U.S. 382, set forth in Appendix B.)

At is not necessary to-set forth the lower court’ ¥'. 7

discussion relating to vagueness. - (See, Statement,

Appendix beginning at page 16.)"The fact: that a

unanimous three-judge court found that the mean-

ing was not “uncertain or vague—in: any event not nes

‘to the extent that the statute must be held unconsti-

‘tutional * * *” is itself persuasive that the stat-

_ utes are not void on their face. On page 17 the lower

court painted out that a -person taking the oath,

nie * * *° *is not required to speculate concerning

the applicability of every conceivable or rare mean- -

_ ing of the words employed.” He meer only apply them f

to his own case.. Sai 4 a

Although the subject of subv er sion is susceptible ,

-. to’ coverdramatization, it should be pointed out that -

-based upon. the history of other nations, a statute

would be of little use which included within its ambit —

"only those who participate in the putsch itself. It

must also include those who pr ovide assistance by .

} supplying weapons and the like. Second, an insurrec-

tion is not the work. of one man and,‘ds 4 result a

statute, to be of any use, cannot - include ‘only those

- who alone carried out the attempted ¢gup d’etat.

In their. Statement, Employees did not attack

the word “revolution,” found in the 1951 statute as

. 4 : r ; ; . ;

being ambiguous by claiming -that “revolution” |

. could involve a peaceful and constitutional change. |

Perhaps it is because even if this word were found

unconstitutional, only the word would ‘be stricken ~

under our state high court’s ruling in Household ~

Finance Corp. v. State, 40 Wn. (2d) .451, 244 P.

(2d4 260. The epee words “force « or violence”

would remain. , :

Ve Onée it is determined that “ai halite are not

__ void on their face, For v. Washington, 236 U.S. 273,

__ is applicable, holding that the Court will assume that |

a statute w ill be interpreted by the highest state’ court

- in such a way as to avaid raising: difficult constitu- -

tional problems where any such interpretation is pos-.

sible. See also Shuttlesworth ¢. Birmingham Bad. of

Ed., 353 U. S. 101. Our state high court would of

course, be guided by Section-19 of the 1951 Act which

provides in part that, “Nothing in’ tIfis act shall be.

construed *-* *. to-limit or.infrir_e upon free- —

dom of the press or freedom of speech or assembly,

within the meaning and the manner as guaranteed

by the Constitution-of the United PE Sas:

THE 1955 Act Dogs Nor INVOLVE AN UNconstitt -

'TIONAL SHIFTING OF THE BURDEN OF. PROOF

4 Citing Speiserv. Randall,357 U: St513, as au-

thority, Employees claim that the 1955 Act involves —_

a-denial of proceduraldue prodegs in that“it shifts

the burden of procf to the public employeeix W hile

‘the Employees’ argument might have merit were the

oath demanded of the public in general, it has no,

"merit aha here the oath requirement i is directed

toa ‘specific group, to wit, public employees. A much

_ more substantial societal interest.exists-where a state

: inquires into the loyalty and- fitness: of its public

employees than where a state i inquires into the loyalty- -

and fitness of the public veterans, or members of a

particular race or religion. |

The petitioner in Speiser prevailed i in 1 this Court -

because of an unconstitutional allocation ef: the bur-

den of proof in a ‘tax exemption proceeding. This —

Court went to great lengths to distinguish certain

disclaimer oath cases involving a ‘specified group

where the ‘oath requirement is backed up by a sub- .

stantial state interest.. Specifically, this Court on

page 527, with reference to Garner'v. Bd. of Pub.-

Wks., 341U. S. 716, Gerende v. Board of Supervisors,

341 U. S. 56, and American Communications, Asso- }

: ciation v. Douds, 339 U. S. 382, said, “In these cases,

- however, there was no attempt directly to control’ —

speech but rather to protect, from an evil shown to be.

grave,.come interest clearly within the sphere of. gov-

ernmental concern.” On page 528 the Court said,

“The State argues that veterans as a class occupy a

position of special trust and influence i in the commun-

ity, and therefore any veteran who engages in the

proscribed advocacy constitutes a special danger. t@

‘the State. ‘But while-a union official or publie em-

ployee may be deprived of his position and thereby re-

moved from the place of special danger, the State is

‘powerless to erase the service which the veteran has:

: ‘rendered his country we he be denied a tax

exemption, he‘rernains a veteran. The State; conse-

- quently, ca® act. against the veteran only as it can

. act against any other citizen, by imposing penalties

to deter unlawful conduct.” The Speiser case, then,

~ catinot be used as authority to support the claim that.

the 1955 Act involves a deprivation without b iciees

ural due process, 3 Z

: Part V