# Motion to Dismiss or Affirm — Baggett v. Bullitt (No. 220) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0063%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Motion to Dismiss or Affirm - **Published:** January 1, 1963 ## Text BUBREME COURT. u. & IN THE SUPREME Cot | OF THE ~ UNITED STATES 48 1963 -JOHN F, DAYIS, CLERK -. * Qeroper ‘Term, 1962 re - 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. * / ‘ 4 ° 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, 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 . :- 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 . - 2 e . = te , & ; &. 2 - he E : v fa + % , . ° P 7 2 ~ a 7 si ? ae £ # Z e Be, ° , 1 ° Me ec * ‘ A bs oe S - 7 & ” , ‘ ; a” : J ol ys 2 ° “ Bee? . ad ay es x. \ pe" ’ a - cs ‘e Mets Waa alee ~ ; ° _*« & ia: 9 7 %& a . : \ X " rt say A \-/ : ° e e. ee \ ’ E : = ne \ i: pc > ‘ : ae ay t a ¢ | a % oy - * . p * . °F D>. ear | ®. : 2 . ° ; é ” : . Kart P, Mavuzey, Trkvor J. Mc- ‘ae fe bee oe eee MOTION TO DISMISS OR IN THE 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 oe . 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- 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 ee 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 Pg Pm oO py i | page 220: hee eight 2g re 3 : . . , - - ° e . 5 . ¢ ° . ‘ . tp o 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 4% a The other question to Be ccieaidanesti| is, on . Act?. 2. ie ' 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 ss ‘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 preme cqurt, unconstitutional, the court said that the — ‘. - : would invalidation of the 1955 Act affect the 1951 | 7 a 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 | q pee 3 @ ft 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 ‘ Nor ,will this a, give ¢ Jess weight to findings © - 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-. - mediate action to rid itself of employees, faculty © and’ otherwise, who might have’ been subversive * * *” (Statement, p.-65). In fact, this action © 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 ’ THE 1955 ACT DOES NOT VIOLATE THE © _ ‘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- / t 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 - ar provided in the rules.and regulations of the © *. -* 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 to catch all of the Employees’ not given the right to © _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) eS _ -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.. « ee : 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 ia . t 3 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 & g ‘ 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- urement. (We discussed*the matter of which: ‘statute © 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 40 “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 - n- -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, re & a? 2) "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 OTHER CONTENTIONS OF EMPLOYEES _. CONSIDERED _. os THE 1955 enne REQUIREMENT Dogs. Nor Soles TUTE A BILL OF ATTAINDER Employees’ construction and interpretation of Cummings v. Missouri, 71 U.S. (4 Wall.) 277; and’ : ‘United States v. Lovett, 328 U. S. 308, demonstrate the invalidity of: their argument that-Washington’ s esc siiaree requirement is a bill of attainder. - Employees admit that the oath in this-ease is prospective and cite no casein which this court ‘has * — . found a prospective act to be a bill of attainder. The + acts struck down in the Cummings and Lovett cases: and i in Ex parte Garland, 71 U. S. (4 Wall:) 333,,all- . ‘involved punishment for past misdeeds. It is true that the punishment for past misdeeds. was often --" conditioned on a future &ct, but in each case the " individual punished could -not have avoided thé sanc- . tion. For example, as one writer has pointed out in . 28 Rocky Mt. L. -Rev. 258: “Garland and Cummings could not alter the fact that they had supported the confederacy in =. a 44 ae the Civil War. Lovett, Dodd, was Watson. evald never again qualify as governmental employees _ whether they changed their loyalties or not.” At page 103 of Employees’ Statement. an out of context quote from J ustice Frankfurter’ s concurring . opinion in United States v. Lovett, supra, is used to _ Support their argument that a bill of attainder need not.alsd be ex post facto in order to be objectionable. A -few more lines of quotation from that opinion ’ demonstrate that the quote is not apposite. At page 323 of U.S. v. Lovett, Justice Frankfurter wroft: “Frequently a bill of attainder was thus doubly objectionable because of its ex post facto features. This. is the historic explanation for uniting the two mischiefs in one clause—No Bill of Attainder or ex post facto Law shall be _ _ passed.’ No one claims that § 304 is ‘an ex post: facto law. [f itis in substance a punishment for makes no such charge) for which no punishment _ had previously been provided, it would clearly be ex post facto. Therefore, «if §-304 is a bill of _-attainder it-is also an ex post facto law. But if it is not an ex post facto law, the reasons that establish that it is not are persuasive that it, cannot be a bill of attainder. No offense is speer fied and no declaration of asi is made, = (Em- phasis supplied. ) : Whether that statement was applicable in the » Lavett case or not, we submit that it -is ‘certainly . applicable in the present case. In other words, the . fact that the action in the present case is prospective is convincing evidence that the act was,not an act 6f punishment but rather a regulatory act to control the future action of those coming under the act. A iP . a : acts deemed ‘subversive’. (the statute, of course, . a 3 Sieg” . 2 , . . A ped: %* ons Boy "45 _ member of a subversive organization cannot claim . that he is penalized merely because the state requires. -him ‘to resign ‘from a subversive organization as a condition of his émployment by the state. The re- quirement of non-membership is reasonably related to the end sought: trustwomthy public employees. a Employees wholly ignore the Washington Su- : preme Court’s interpretation of, the 1955 Act and _ the constitutional, prohibition against™bills ‘of .at- -‘tainder. In Nostrand v. Balmer, 53 Wn. (2d): 460; 335 P. (2d) 10 (1959) ; (which, in this respect, is this same case in an earlier journey to this Court through the state courts) our court said at p. 476: : “Respondents eomplain that the statute’? ¢ which. = ture conduct when drawn: by the legislature on the “basis of its investigations. If the oath was valid as regulating future con-°— duet in the Douds case, it’ is so in the present Case. © orate aS . | uta Mae oe | Hence, evén assuming, arguendo, that a bill of at ” tainder could be prospective, the act in question is we sfiek ‘ving, in ‘part, several cases. * 3 not a bill of attainder but is an employment qualifica-. tion. This being true, it would be gratuitous-comment _ for the court to. comment on the possibility of “pros- - pective bills of attainder.” It would involve overr ul- It is‘ submitted that there is no » feerit to. Em- eae; 2, ployees’ contention. — Has BEEN No PRE-EMPTION OF THE 1955 ACT “The hoiding in Pennsylvania v. Nelson, 350 U.S. 497, so heavily. relied upon by the Employees, has © been reduced to its precise facts By U phaus v. Wy-| ss man, 360°U. S. ‘72, 76-77 and Sweezi y v. New Hamp; shire, 354 U: S. "234. The portion of the state statute laveieel in the ‘pre-emption argument in, the Sweezy and Uphaus cases, supra, is the fame as Washington’s., The Up- haus. case in- 1959 is the last case to discuss ‘‘pre- emption.”: * There the Court stated that the pre-emp- tion contention “was denied sub silentio” in Sweezy,” _and thus, with these comparable statutes under con- ‘sideration, the pre-emption argument appears fore- closed to Emiployees here as well. In Uphaus, at page ¢ 76, the- court distinguished facts. within the Nelson: ‘case from the case under consideration and stated : “~* * * In Nelson itself we said that the « precise holding’of the court * * * is that the Smith Act * .* * which prohibits the knowing advocacy of the overthrow of the oe, 48 EN { eear ty Coe Government of the United States by forée and - Violence, supersedes the enforceability of the Pennsylvania Sedition Act which proscribed the . same conduct,’ .(Italies supplied.) 350: US, at 499. The basis of Nelson thus rejects the notion . that it stripped the States of the right to protect. themselves. All the opinion proscribed was a. . race between federal and State B eiecansin ‘to. the courthouse door. >" * .The-court proceeded, then, to enumerate areas - which states could certainly legislate against. (For | an “excellent discussion of the Nelson and: Uphaus cases and loyalty. oath requirements in general see : -Professor Cramton’s article in 43 Minn* L. Rev.. 1025, | ' 1959.) The irrelevancy of- cases cited in Employees’ Statement’ preparatory to the pre-emption i Ag : may be seen frem the following: In The Exchange, 7 Crarf@, 116, the court bal- ances federa! authority. with foreign syacconia ds and that case has fio relevancy here. ‘In the Legal Tender Cases, 79 U. S. ( 12 Wall. ) _ 457, the court held constitutional the power of Con- gress to prescribe bank notes as legal tender, ahd that debts created before and after such, act can con- - ‘ stitutionally be paid in such legal tender. This case “is wholiy psec to the question here under econ- sideration. Incidently, the quote.on page 111 of the . Statement is taken from a concurring opinion. ‘5 . F , stn _ r : ; A Sn _ Employees chins that this oni is siditenty s : aaa hence veid under the due process clause in that . ~ it requires aliens to- take an oath of undivided al- legiance to the United States, thereby placing them. ~ im the inconsistent position of averring undivided allegiance to one government while retaining the - citizenship of their native country. The answer is that aliens at the University.of Washington are not,. -and for some years ‘past have not been, required to subscribe to the oath of allegiance in ‘the form ‘re- . quired by the 1931 law. It is at least arguable ae the. legisiature intended the words, “every person ap lying: for a license to teach *. * * "to cover not: “every person” in the broadest sensé ‘but every person who should cwe ‘allegiance to this country. It is to be noted that legislation was enacted prohibiting aliens from teaching in the common schools (chapter 38, Laws of 1919, RCW 28.67.010, et seq.) Three | decades later, chapter 32, Laws of 1949. (RCW 28- — .67.020, part) ‘amended Section 1 of the 1919 act. . to allow. exchange teachers in the public schools “irrespective of requiréments respecting citizenship . and oath of allegianee.” Neither statute referred to institutions. of higher education. _ This. demonstrates that the Washington Legislature i in 1949 assumed that the 1931 act did not apply.to institutions ‘of higher education. ‘But, of course, whether: the long- . standing interpretation of the 1931 act by the. ad- ministrative agencies—even’ though it is entitled te > SS a 59 great seas the correct interpretation, is a. abe: ‘question for the state courts. ke o On the meritz, Employees ‘have little or no au- thority to support their claim that the 1931 Act is. invalid. In fact, Re Summers, 325 U. S.564, supports its validity. There, this Court held- that the refusal of a bar applicant to take an.oath to support the state constitution is a ground for denying admission to thé bar and is not a denial of due process under the Four- teenth Amendment. The state constitution had apro- . ' vision requiring service in the militia in time of war. In that vase the applicant refused because of his un- .... ‘willingness based on personal scruples to serve. in a3 the state militia in time of war. - Sete If a state can refuse to allow'a person to practice ~ Jaw on this ground, surely a state can demand of a - teacher,! ¢ as a condition of employment, an oath of undivided allegiance. The Employees, in the court below, raised sev- eval i issues in-regard to alleged vagueriess of the Ian- guage of the prescribed oath of dllegiance. The three- . . Judge distr ict court on page 28, aeatement, Appenatx, | ‘replied as follows: “These contentions of vagueness of the cath . of allegiance statute raise substantial constitu-. ° . tional issues, bringing into question as they do ‘the meaning and intended scope of the statute. Although. statutory construction may resolve ~ ‘these questions in such a way as ‘to remove . doubts concer ning constitutionality, it appears ° that the Supreme Court of. Washington has never had occasion to construe the oath of alle- 4 \n 4) . ts, = \ . . ' > > . ‘ ~ \ | : ‘ . HK : 5 : Si giance ‘eninlieiin of Cha ter 108, Laws of 1 of 1931, ‘although declaratory judgment proceedings are _ available in the, Washington courts. Authorita- tive interpretation of the statute by. the Wash- ington court may avoid the constitutional issue, , or show it in clearer. ‘perspective, or resolve it.” Thus, for three ‘compelling reasons, an attack Se on the oath of allegiance statute by the employees must fail. First, one.may not challenge the validity of a statute which’ does not affect. him. Alabama Power Co. v. Ickes, 302 U. S.°464; Massachusetts ‘ Mellon, 262'U.'S. 447; 488. Second, one may not chal- lenge the constitutional validity of a statute which has never been enforced. Poe v. Ullman, 367. U. ‘s. 497 (statute prohibited sale’ of contraceptives). . Third, one may not challenge the constitutional v alid-. us ity of a.state statute before doubtful questions con- cerning the application of state law have been re- ’- solved by the state coutts. Leiter Minerals, Inc..v. United States, 352 U. S. 220, 228-229; United Gas Pipeline Co. v. Ideal Cement Co., 869 U.S. 134, supra.- as - Again; the 1931 oath of allegiance ‘statute has never * been’ construed by a Washington court. The latter point, regarding state law presents a barrier to non-— alien as well as alien Eniployees. There is no reason to suppose that the Washing- ton courts will not accord full constitutional protec- — tion to the employees. The two Nostrand cases are examples of the length to which our state court will 3 go to protect constitutional rights under thé statutes. - here im question. ° o e . yy Aes : The seeds of this court in Martin uv. tie 360 eas . U.S. 219 (1959) are here pantiolaly applicable. At” page 225 the Court said: : '“Thereeis no reason to ‘suppose » that the Commonwealth of Pennsylvania will not accord’ full constitutional scope to the statutory phrase. ‘actua! taking of property.’ If, after all is said | _ and done in the Pennsylvania courts, any of the paints believe ‘that the Commonwealth haz - - deprived them of their property without .due. . process of law, this — will be here.” ( Foot- : ‘note omitted.) CONCLUSION - : During the past decade and a half, this. Court ; ) arty ‘os . PES ee For these reasons, this Court should dismiss this ne “, court. : ZA appéal for want of a. substantial federal question as : . - tothe 1955 Act, or in the alternative, affirm the lower’. . The 1931 Act ie never. ‘is before any. state’ ‘eiuel of any kind. For this reason alone, this Court : _ should dismiss the appeal for want, of a substantial federal question as to the 1931 Act, or in the alterna- * tive, affirm the lower court. J. oe . es Respectfully submitted, JouN J. or DONNELL, Tm oe General, oe ‘Huanest H. Meher _—s sath ad General” R ) se" “ ‘ i y " iy eS. Deas ore; —- hee Assistar.t Attorney General... Attorneys for the. Appéllees. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0063%3A4. Public record. Not legal advice.