# Appellees Brief — Baggett v. Bullitt (No. 220) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0063%3A7 ## Record - **Collection:** Supreme Court brief - **Document type:** Appellees Brief - **Published:** January 1, 1963 ## Text 4 uN ° = . : . “+ he : cao te ec A n, cy id . - a —rs + oe ad ae See rs VST i Sy m Fn the je Supreme Court 0 Office-Supreme. Court, U.S. Tt. tie Ee ; FI L-E D MAR 2 1964 N F. DAVIS, CLERK Anited States © ve wee Octoser:. TERM, 1963 \ 0 SHEFELMAN, Rosert- J. Appellees. On Dmect APPEAL FROM-THE FINAL Ofper OF A- THREE-JUDGE’ Untrep States District: Court Srrrinc IN THE WESTERN DISTRICT OF WASHINGTON; ~ NORTHERN Division - BRIEF OF APPELLEES. oy Office and Post Office Aiddress: ‘Remple of Justice, Olympia, Wash. “2 ° o . 4 JOHN J.0’ CONNELL, HERBERT H. FULLER, , - Attorney ; -General, Deputy Attorney Genehal, DEAN A. FLOYD, = Assistant Attorney General, y “Attorneys for Appellees. * " oe le eae Data OCTOBER Term, 1963 ” o = In the. Suprene Court of fthe \ - Gnitede States _ F a ‘ No. 220 aL sree ~ Lawrence. Ww. sammie Rocky Bauer, Z. W. Samnatend. Joost ’ FE. Busrncer, Isaset’S. Caro, GIovANNT Costican, J. G. DAsu,- Wintram A. Dawson, Jay Patrick DONALEY, Davin M. Eaves, JoHun M. EMLEM, T. ‘SAUNDERS ENGLISH, “Victor ERLICH, Rosert G. FLeacie, Ronatp ‘GEBALLE, PATRICK ei Gotps- wortuy, Mitton P. Gorpon, ALvEN D.’ GREENBERG, Ropert FE. GREENGO,’ GoRDON GRIFFITHS, W.:. Mary .GRIFFITHS, ISAAC “HALPERN, ARNOLD Hanson, W. Stutt. Hort, ApraHam C. a Keven, Artuur L.-Kopsier, Scorr Lwtie, Rogerr W. Mac- -» Donan, D. ‘F. Macer, Henry OV; Marer, Writiam =H. .MatcHETT, Kari P:+Mauzey, »TREVon J. McMinn, IRVIN .- .« Mrrowe, Roperta -‘Mitowr, Wayne G. MuLLEeR, Ruoaps . Murpuey, Davin S, NEwMaAn, Howarp Nostranp, GorDON H. Orrans, Smm6n Orrenserc, Jack R. - Parsons, Eucene C. Pizzuto, Metvin Raper, Kennet Eyre Reap, Max SAvELLE, ANNICK SmoiTH, C. A. VALENTINE, LESLIE. WARNER, ‘JAMES B. WaTsSon, WALTER B. Warsonr Puiuip E. Witcox, THEODORE ' -W. Wicex, Wituiam B.” Wootr, Pau: Dietricuson, Jon. Brincman, Boris A. Jacossonn, Patricia J. KeELLer, LucIue L. Curtis,. ALBERT NUJENHUIS, RicHARD MorriLi, - WILLIS KONICK,- Ropert G. CLARKE, THEODORE LANE, Appellants, Za z pide Buuuitr, Joserx DRUMHELLER, JOHN L. Kina, Hersernt S. Lrrtite, K. A. Appincton, Joun J. O'CONNELL, Cuaries E. OREGAARD, Haroip S. SHEFELMAN, Roerrr J. WILLS, : _ Appellees. On Drescr APPEAL FROM THE’ FINAL ORDER OF A THREE-J2'DGE . Unitep States District Court SrittrnG IN THE WESTERN NS. Drsrrict OF ET, NORTHERN DIVISION BRIEF OF APPELLEES JOHN J:.Q’ onenty Attarney Genergl,. HERBERT’ H. FULLER, Deputy Attoyney y Ge ne ral aie A $ _DEAN A. FLoyp, © ae a ee _ Assistant Attorne ‘y General, 27 + + Attorneys for Appellees. ** | Office and Post Office Address: 1 Temple of Justice, Olympia, Wash. . : ” . -" " SUBJECT INDEX Ree ~ INTRODUCTION sa ehd-whains Giese ae ag teal ie seen aa Wasa’ PART I, ADINTIONS. AND CORRECTIONS TO EM- | PLOYEES’ STATEMENT OF THE CASE...... 10 le ve Statutes and Litigation Relating to Papeetnive Ac- , 1 ees. . . tivities Since World’ War Il........... eras ) A. Statutes ...... TRL ge fe, epanaee Pn See uy B. Prior Litigation CEN See Bers vac ie cee SY | BIG aie Sie ae Mi ievsecceseces A ‘D. The. “Refusal” to Sign. aa : reas ey pee C tp ST a 4 The Employees .. 5.0.0.5... 00 i eo a ee 19 PART II. SUMMARY OF ARGUMENT... en ee PART-II. THE 1951. ACT, AND THE PORTION OF hl Bray teeny THE OATH BASED THEREON, ARE NOT PROP- re ERLY BEFORE THIS. COURT..... Aare eens tee 26 ‘2 | ‘ PART IV. THERE ISNO ACTUAL CONTROVERSY\. ee? / The Disclaimer Oath... Desay eG tae ede ke wake ce \.. 0 Ree - The 1931 Oath.......:..... SA hile beregey oes ke Fo hates \ng 34 jue PART V. THE 1855 ACT AND THE 1931 act DO NOT Sie VIOLATE THE FIRST AMENDMENT,........ 35 The Case Law Is Overwhelming to the Efecl that. ? ‘ the Disclaimer Provision of the 1955 Act Does , ‘Not Violate the First Amendment........... MBS The 1931 ActDoes Not. Violate the First sais 41 The 1955 Act Is Not an Unconstitutional Prior ' MI et Fas i ede is Se eeaG kates es ‘41 ~~ ., . The Oaths Do Not Violate the’ First Amendment : _ Gyarantees on Réligion,...;...........4..: +. 45\ ye } - The Interest to Be Protected is Substantial. Pave eet Mt i Raa : PART VI. THE 1955 ACT AND THE 1931 ACT DO NOT *) Baste ae VIOLATE THE FOURTEENTH AMENDMENT. 50 ' The Employees Who Refuse ¢o Sign the Disclaimer . - * Oath Are’ Probably Entitled to a Hearing....... 50 Whether an Employee. Who Refuses to Sign the 1931 _ Oath Would-be Entitled to a Hearing is a Matter SME RNS franc cai ccdes a 58 The 1955 Act Does Not Violate. Constitutional Guar- Leu : The 1931 Act Does Not Violate eran antees as tq Vagueness... Ee Sy Aree p> oh Gee om 67 6 \ '. antees as to Vagueness........°)..:.....50 08.6. 58 , o.- The -1955 Oath Requirement Does Not Constitute a. Bn A) ONIN 76 ou bn a Gnu bi cuss io 0ks ewes ys There Has Been No Pre-emption of the 1955 Act... 77 ‘The 1955 Act Does Not Require Self-Incrimination. . “7 The District Court was -Correct in Dismissing. Em- ° ployees’ Complaint With Prejudice:........... The District Court Was Correet in Dismissing the “students ....... te a Ss saan Delia oe ee aoe ae 81 CONCLUSION LUE Faeiay ee dade ce Cue Re | Se ORS, TABLE oF AUTHORITIES. CITED eee 6: Piste Vv. California, 332 U. S. peices ea EO Ste Fe 80 “Adler, v. Board of Education, 342 U.S. 485....2........2. ee EE oe ge 5 aE, -22, 32,33, 35, 37, 39, 48 American: epee: Assn. v. Douds, 339, U. S. 382 - Nard Ste ok Pe ee ka aie es "....22, 27,44, 48, 57, 61, 69, 7 4 Arkansas Fuel Oil Co. v. La. éxrel. Muslow, 304 U.S. 197. 2 Barenblatt v. United States, 360 U.S. 109.....:,%...2..: . 40 Bates v: Little Rock, ie) ere FeO ere Beilan v. Board of Education; 357 U.S. . SVs WEEE vote So boels o whens Weta 21, 22, 36, 37, 39, 40, 80 Board of Gonsenors of Federal Reserve System v.-Agnew, - $29 U. S: 441...... see Ve teata ey wy et irs «swe ee ue Braden v. United States, 365 U.S 431..........0...... ae AS ae Bridges v. California, 314 U. S. 252... .... “Cnn eae ee Bryant v, Zimmerman, 278 U. eee bee 36 Cafeteria Workers v. McElroy, RE RRs ccs; 57 Carr Woung,-364 U" 5, 479.034.200.050... 000 0a BA -Cohen v. Hurley, 366 U. "S. REP facia s Oak son Seles Sue cas tee - Communist Party’v. Subv ersive Activities Control Hoard, EE, Ba Seder, Apna: Oem «Meme 42°47, 48, 80 Corwin Investment Co. v. White, 166 Wash. 195,” 6 PB BRR ree: eee « ce enact k ewe ee 29 - Cramp v. Flerida, 363 U.S. 278 pibiciewesweess 16, 23,-58, 59, 65 Cummings \ v. Missouri, 71 U.S. (4 Wall.) 277..... Oe aay 73 ’ Daniel v. Family Security Life Ins. Co., 336 U. S.220....73, 82 ae. United mega si oh ee ateads :27, 60 . 5 Page _~ PART. Vil,” OTHER CONTENTIONS OF EMPLOYEES. ke en 73... 80 s oa oer at .& TABLE OF AUTHORITIES CITED—Continuedl ) CASES: ai, Ex parte Garland, 71 U.S. (4 Walls 3, 4, 4 ee ee es ee ", Fox v. Washington, 236 U. S. ee ine ptcsvgs MNES. > » Garner v. Board of Public Works, $41.0. S. 116... v. Simpéon, 196 Md. 177,-76-A. (2d) 322, 340 U.S. 86159. huttlesworth Vv. Birmingham Board of Education, 358 Se Fe TG UR SO POL Rema arias EMRE Mh (Beret he, Cut Re Be 63 State v. McCarthy; 38'N. W: (2d) 679, (255 Wis. 234)... . 67, 68 State v. Wallis, 50 Wn. (2d) "350, 311 P_,(24)/ 659"... \66 3 Stromberg v. Calif., 283 U. S. B59. Fei SPEER A P 62 : Sweezy v. New Hampshire, $54 U. ‘S. 234. :..25, 37; 38, 42,77 | Times Film Cerporation v. Chicago, 365 U. S, 43. LT OPHRS 42 Twining » New Jersey, 211 U. S. Me eg es: aks 80 - United Gas Pipe Line Co. y. Ideal Cement Co., 369 U.S. 1340.5, rer: eet | een ce of 56, ais United Pubtic Workers. v. Mitchell, 330 U.S. 75.. | ..35, 37, 56 | United States v. Lovett, 328 U. S. WR 46 i .73, 74, 75, 76, 77 , United States v. Johnson, 319 U. S. 302 ere ees Pes 81//. United States v. Spector, 343 U.S. 169. Gah ape aks hae are , Uphaus v. Wyman, 360 U..S. 72-..)0.....; ore 77,78 Weiman v: Updegraff; 344 U! OE pone eee xe -1 +13, 16 - "West Virginia State Board: of ,Sducation v. Barnette, iser v. Randall, 357 U. Ss 513. Si eine 17, 21, 24, 41, 42, 69, 70 . 319 U. OM Gtk s Ue Narr ue cakes ht ae 2i, 41, 47 e “ ¢ ¢ Whitney v. California’ 274 U.4s. 357. adc y eee 0 Ol: -Wilkinsog ' v- United States, 365 U. S. 399. Fania ieigs 40 Winters ve New York, 333 U. S. 507.0 0...00..0.0.. MNS 2 _ Wong Yang Sung v. McGrath, 339 U. S. 33. POT Y res Yates v. United States, 354 U.S. 298 es a FA el ee ae eee AE - ; : a : ‘ ‘ ° e ' a si | _ WASHINGTON STATUTES, pee 8 & Paget Laws of 1919, Chapter ARDS ewaeenees oie Pace iting ae at ae pepe ee ar Lata ees Weta Sh Emaar he % Laws of 1931, Chapter 103 “ae Pikah die wbase bihesch new aki ‘10, 19, 21, 22, 24, 25, 34, 35, 58, 67, 68. 69,.70, 72, 80 e ' Chapter 119 ..... AS LA eile ESSE Laws’ of 1947, ‘Chapter’ MET nv iceneveicetanve ds Sah hev a an Section 2, p. 1334... /.. ces saccade cudnt SRR 5 ae PB. 1378... 6.6... eee. cyte he Puaea weber SE _ Laws of 1949, Chapter 32 ......, ee egtivdieey cheick tes nS a 72 : Laws of 1951, Chapter 254... PSEA pg ee ia teascdot es | rede 10, 12, 15, 16, 20, 26, 27, 28, 29, 30, 31, 41, 35, 50, 62. / SOCRIO BE a ctavees pee iaveunaewncie | tere Meceie 16 ee a 2 ree ao hv das Saale es 10, 16, 43 DG oe ercrye tn ee CE ee ee SAE. 3 etc ds ce . Segtion. 19 ......... Aiea tect et arnantens we tees 63 { Leeeg: of ORE, Chapter $48 6.550 ike de hee cans. 13, 16 Laws of 1955, Chapter 377 ..... Pemba ..10, ‘nn, 13,14, 15, 16, 19; 20, 22, 23, 25) 26; 27, 28, 29, 30, 31, 35, 37, 39, 41, Bir e dt GER ASP ROSE Brak lyeieheh cp Puccad wating sia e-a Meee oy Sertide @ 323 es Teel aS NOR AE I 348 fi 57 Laws of 1959, Chaptér 234 eiges eeiyge erection: 23, Bz, 45, 58 , _ Laws. of 1961, ‘Chapter 1 Soba eS ad ea Ra Ne 23, 52, 48 Re _ Section a APES bk ee vb 4 yh poets Fae Sections 18, 19, 20, aha au: Beets tpg ta fae BS 54... Chapter 18.85, kevised. Code’ ‘of. Washington. afar Doe pes Sec nees Revised Code of Washington 28.67.020 /, 6.000.605.0005. va Revised Code of Wasisington 28.70. 150 et seq EE ANG 5 10, 34 Revised Code of Washington BAT... Novel Poi ie “Revised Code6f Washi ngton. 28. 77. 130. (tRp Bray es Bans ee 2,32 ; : ' te L@. s ~ ‘ 8 2 5 - Coe es? UNITED: kh ES CONSTITUTION . " United ter: Constitution, ye Amendment. ede tele ce " Unite States Constit ytioti Vouttnendbs Ahendiient. rene. itt SOR et eee we nt ae eaae ‘YT, 21, 22, 25, 40, 63 M ISCELLANEOUS _ Laws of Maryland, 1949, Chapter 86, 1949 Anno. Code of Md, Article 35A....... VEEN Sob es cvek UE bs eae ONS 12,59" S ‘ond Report “Un-American Actietias: in Washington : (1948) Gh eck mewesdenren 140 Miley 40 «canst ius 11, 22, 47, 48 ‘Senate Bills 368, 378, 356 (Washington) .-........0... 6. 12 hate Journal, 1955, Dp. 34 (Washington) in Wis o UE ch eh 13 Ss winks, OE Valet Jour. 190080) vi. i occ eM 15 54 Stat. 671, 18 U.S.C. 2385 (Supp.) (Smith Act)....... 59, 60 8h Stat. 146, Chapter 120..... 0.0.68. Tee te akc ee | Sutherland, Statutory “Construction, 442 § 1937, 3rd. ed. BOGS ie eek oe Sh Wecuee rate Sihits rege arse t a INO Noo tes i Bievig codosonies) indan ee MOS In the Supreme Court of hie - United States OcToOBER TERM, 1963 No. 220 r) Cavan W: Baccett, Rocky BAvER, Z. W. Buweavm, Jian “ E. Busincer, Isapet S. Caro, Giovanni Costican, J. G, Dasu,. @iciraM A. Dawson, Jay PATRICK Dona.ey, Davin M. “EAVES, Joun M. .EMitrem, T. Saunpers Engiisu, Victor ER IcH, Ropert G.: FLEAGLE, Rowaip GeSsALLE, Patrick T. Go.ps- * wortHy, Mitroxn P. Gorpon, ALVIN D. GREENBERG, Rosert E. -GREENGO, Gordon GarirFITHs, W. Mary GRIFFITHS, IsaAc Hapern, ARNOLD Hanson, W. Stvutt Horr, ABRAHAM te KELLER, ARTHUR L.~ KosLer, Scorr Lytie, Rosert W. Mac- Donato, 9. F. Macee, HENRY W. MAIER WitutiAM =H. Matcuett, Kart - P. .Mauzey, ‘Trevor J. McMinn, Irviz: MILOWE, ROBERTA. Mitowe. Wayne. C. Mutter, Ruoaps MuRPHEY, Davip Ss NEWMAN, Howarp NosTrRanD, Gorpon H. @ORIANS, SIMON Orrenserc, Jack R. Parsons, EvGENE’ C. Pizzuto:; Meivin Raper, KENNETH Eyre Reap, Max SAVELLE, ANNICK SMITH: C. A» VALENTINE, LESLIE WARNER, JAMEs B. a ‘Watson, Watter B. Watson, Purip E. Witcox; THEopoRE™ W. Witcox, Witt1AM B. Woo.tr, Paut DIetTrRIcHson, JON BripGMan, Boris A. JACOBSON, Parricta J. KELLER, LUCILLE L. Curtis; ALBERT NUJENHUIS, RICHARD Morritt, WILLIS Konick, Ropert G.CLARKE, THEODORE Pane, Appellants, Vv. 5 ’ Dorotuy Buuurrr, JosEPH DRUMHELLER, JOHN L. KING, Hersert S. LITTLE, E._A- Appincton, Joun. J. ‘oe “CHarRtes’ E. -OpEGAARD, Haroup S. SHEFELMAN* . Bye Bl WILLIs, arg : fet Appellees - _ On Direct APPEAL FROM THE’ FINAL ORDER OF A THREE-JUDGE Unitep States.:Districr Court SITTING IN THE WESTERN ‘District OF WASHINGTON, NORTHERN IN Division BRIEF OF APPELLEES ee INTRODUCTION -( For conv enience, appellants shall be called “Em- Sioveen* For the same reason appellees shall be ° called ‘Regents’, even though they include, in addition,.the President of the University of Wash- . 10 ington aad the Attorney General. The duty of the Attorney. General i is to defend legislative enactments against -attack on grounds of uncbnstitutionality: ” | The statutory duty of the Regents is to administer — ‘the legislative enactments in question. — ‘ ' The term “1931 oath” refers to the oath re- — - quired by chapter 103, Laws of the State of Wash- ington °1931. (Cf. RCW 28.70.150 et seq.) “Dis- claimer oath” or “1955 oath requirement” refers to _ the oath required by section 12, chapter 254, Laws _ of the State of Washington 1951, as amended by. | chapter 377, Laws of the State of Washington 1955. " . (Cf. RCW 9.81.070) “Subversive Activities Act” refers to t the 1951 act, as twice: e-amended. : PART 1 ADDITIONS AND: CORRECTIONS TO. _ EMPLOYEES’ STATEMENT OF - « THE CASE | It is necessary to deal, in this section, with. the statutes enacted, and litigation relating to subversive activities arising since World War II, the 1955 oath, — the “refusal” of Employees to sign the. oaths. and with the legal status of the Employees. : STATUTES AND LITIGATION RELATING TO i SUBVERSIVE ACTIVITIES SINCE - *WORLD-WAR II | A: STATUTES .. =. * It is necessary to consider chronologically: the ‘statutes and the litigation involving subversive ‘ac-. tivities since World War' II. Chapter 377, Laws of 2 A 11 "© . _ 1955 cannot be viewed in a vacuum. It is amenda- - «tory and it is only one of a number of acts passed over a- period of yeqrs since World War II. It is necessary to. examine thése other atts as well and to eonsider se | their legislative background. ( See Nostrand v. _ Balmer, 53 Wn, (2d) 460, 335 P. (2a) ‘10, at p. 465° vet seq. )s | A In 1947 the ladtalainioe passed the first of. these measures. (Laws of 1947, chapter 287, section 2, p. 1334.) It was a proviso in the appropriation. act : forbidding public funds from reaching public em- ployees who advocated, or who were members of organizations. which advocated, the overthrow of the. government of the United States by. force or violence, During the same session, the legislature, -throygh House _Concurrent Resolution No. “10, created a joint fact-finding committee on un- American activities. (Laws of 1947, p. 1378) This committee held extensive —- involving many — Ww itnesses. “The niles reported its extensive findings and recommendations to. the 1949 session of the legislature. (House. Journal 1949, p. 1095. ) ~ On page 1095, the committee incorporated by refér- ence two lengthy printed reports containing a steno-. graphic transcript of the hearings, the First Report Un-American Activ ities in Washington State, 1948, _ and The Second Report, Un-American Activities in Washington State, 1948. The First Report and Sec-, 7 ‘ond Report are a part of the record in this case, ie though, because of their bet not the printed record, \ ‘Tn 1951 the Governor in his message to the islature urged theegislature to “give thought to poet of appropriate provisions for the curbing subversive activity, and to protect our free in-@ stitutions from perversion into weapons of ager es-' - _ sion against us in the hand of our enemies.” He " further pointed out at Ft. “By Concurrent Resolution - 16 Some large agencies print’ their ‘own oath forms, other agencies combine the oath form with an ap- plication ferm. Oaths are kept on file with the em- ploying agency. Regents are pene of any dis- - charge based on refuSal to sign-the oath. A person, taking the path swears to two facts: that he is not a subversive person as defined in the Act; and that he is not a member of the Communist. * Party or of any other subversive organization. Only the second fact’ is required by the 1955 ‘Act. The |. former stems from sections 11. and 12. of the 19351 Act. | : a Sadie, 13 of. the 199 Act concerns non-sensi- tive positions. No claim, is ‘made by Employees that the positions: involved .i in this case are, or should be, non-sensitive. The oath requirement contemplated by section: | ~ L of the 1955 Act looks to the present. Thus, it is yossiblé for & communist to resign from the Com- p . munist Party today and take’ the oath-toemorrow. _ Unlike other oath requirements before this court: 7 aes membership is not involved. _ The oath so clearly satisfies the scientei" re- quirements as’ a result of statutory amendment | (chapter 142, Laws of 1953), judicial interpretation | (Nostrand v. Balmer, supra, at p. 460, 470; 476 and _ | 484) which this court must “accept without, question” Cramp ¢. Florida, 368 U. S. 278;andthe form of-the oath itself, that Employees have made no:claim that scienter is lacking. Wieman v. Updegraff, 344 U, S: 183 i is, asa result; not applicable. . See: 4m The oink Yequirement is ‘pinpoints to a par- ticular -group, - public employees, with regard to © which the legislature not. only has the right but the duty to set up qualifications. No attempt was made to cover a person not a public employee or officia! as: in Speiser v.. Randall, ‘S57 U. S. 518. pee ae THE “REFUSAL” T@ SIGN. Regents proffered | the oaths to the Employees and allowed them until October 1, 1962 to sign. Prior to October 1, 1962 the low® court enjoined the Uni- . ver sity from demanding the completion of the oaths, an injunction being presently in force.:' Hence, as ~ the lower court noted, “Enforcement of the statutes _ by University officials, while clearly intended, is stil! - prospective as a result of this litigation.” (R 2, 241 ). - Thus, there. is nothing preventing any Employee - from changing his mind today. and deciding to take _. the oath, dispite his vehement statements qi inten- . tion. (See R203.) ‘Thus, the word “refusal” when. ae occurs in the pre-trial order and in the lower court _ opinion must be seen in the light of a threat, avowal, or statement of intention, subject to change at any i moment, not. as an actual irrev ocable refusal. There is, at present, ‘not one refusal on which dischar ge _-eould be predicated. The “refusal” of the Employ ees _ . ; is not an operative fact. In other words the demand for information is a cer ‘tainty (and the First Amend- ment argument should be seen in this light) and the continued refusal and possible diseharge is only a possibility (and the Fourteenth Amendment argu. @ y 1g ee ment should he's seen in this light). The question of . whether there'is an actual controversy is geo in. Part 3. rts : . - On May 28, 1962 a ‘ memoranduin from the office hal the President of the University of Washington to "all members of the staff of that “university was dis- tributed. ‘This memorandum provided. in part ag follows: Saeed ~ babe: To ‘dbable the Board of Regents ‘amis iteclt of the responsibility: placed upon Vv law, hag of the pefsonnel records of the'G ener is in process so. that those per- ses Who have not previously sworn to the re- ' quired ‘gaths may be requested to do‘so. These -, Feqnhests will’ be submitted as soon as possible “but surel}\ no later than September 15, 1962. Since the end of the academic year will be “ ,° reached in a few days and-a substahtial number. of- persons wilt go-off the University payroll for the summer ynd@ may not even be in Seattle, °. _ compliance will with notification t in the event of ‘failure to _ comply, employment will be terminated 30 days . later as of Qetober-34, 1962, unless a delay in ~ taking saction «) fermmate seems reasonable ~ because of causes other than intentional refusal * to sign.” “(R. 173) = This was further elaborated by the rroyost of the University of Washington in\a memorandum a requested by October 1, 1962,..~ of June 4, 1962 directing university deans, directors are ~ and chairmen of departments to beg administer- ing the oaths: \: . “It is evident. that the task -of obtaginig all: of these notarized signatures will be protracted ° and t time consuming. Therefore, 1 am n sending ~ : \ ‘ \ . XN Pr ee 19 to you in this mail a supply of Oath Forme A and B with the suggestion that those who wish . to complete the form prior to the October 1, 1962 deadline be encouraged to do so since it will reduce the costs of administration in meet- ing statutory requirements if as many, persons as possible will complete the form in thé course of the summer and thus reduce the ‘crash’ cierical operation which-would otherwise have. . to be faced near October 1, 1962.” (R. 163) = However, on June 25, 1962—several months ; prior to the “October 1, 1962 deadlines-a temporary. fp Sse: order: was signed ordering that’ the Re- - : gents be “temporarily restrained. from enforcing — Chapter 103,Laws of 1931 and Chapter 377, Laws . of 1955, of the State of Washington, by requiring | ___ the plaintiffs-or others similarly situated to execute , either Oath Form A or Odth Form B, -*) *) *” (R. 36).-On February 26, 1963 the three-judge dis- ‘trict court ‘ordered..that “the enforcement of the judgment heretofore entered will be stayed for sixty... , days; subject to-extension of the stay until final dis- position ‘of.the case by the Supreme -Court: of ‘the - United States Sn yg ee ye f | There can be no legal: refusal as long as there is no. demand. And there can be no demand as long | vas the injunetion is in force. (ce. |B Bag EMPLovees : Me Two observations should be made. The record ‘is silent-as to the contract provisions of any of the Employees, although the Washington Supreme Court . has indi¢ated that thése may be important in deter-_ 3 4 0... - mining. the nature of an employee's heating: rights. : Second, Employees, by the very definition ‘of: the word, are not appliéants. . Thus, the question of.the © — 1931 statute and the 1955 statute with regard to. aPplicants i is not before the Court. « = PART II SUMMARY OF ARGUMENT The Employees cannot challenge the constity- tionality of the provisions of the 1951 Act indirectly by challenging only the 1955 Act and the actions. of administrators acting within the scope . of the 1951 Act, as amended. : Despite the fact that the Washington iil - Court has twice construed the 1955 Act with re- . gard to tenured professors, the number and variety of questions not before that court which Employees are asking this Court to resolve, the declaratory : nature of the case, the fact that, the act under ¢on- sideration is amendatory in nature; and ‘especially the fact*that there Has been no actual refusal to sign, all lead to the gonclusion that the questions relating .* .. to the disclaimer oath are not‘ripe for decision. With regard. to the 1931 oath, this’ Court, should. affirm ‘the lower court’s decision to exercise equitable ab- _ stention. There has never been any litigation in- is volving the validity of this oath, the present case __ alone excepted. € Neither the 1931 oath osiahilawiieant nor the 1955, oath requirement involves a violation of the .First tee ei om “h 4 > a ~~ ' Amendment, as aaa applicable to the states by the Fourteenth / endment. A‘distinction must be made, , between ‘the s ‘ate’s constitutional right. to demand | certain, information on pain of possible: loss. of em- lent: (which involves First Amendment, con-, derations) and ‘the form and method by: which cr “the information ‘is demanded. (which involves the. Fourteenth Amendment considerations). With re- gard to the former, precedent. strongly. supports the | ton of the oaths. The Court’s decisions.in Beat . Rd. of. Education, 357 U. S:.399, Adler v. Bd.-of 2 s a tae 342 U. S. 485, and Garner v. Bd. of Pub- 2 lic Works, 341 U. 3. - 716,— : =k s . - of religion. : ene Pe The two repor ts of the Wadhtigton State Un- - Ye” * : O- 6 5 ud “ : . , $ of proeedural due process since employees with academic tenure certainly are entitled to a hearing. . us 34 , 2 er the'1955 Act nor the 1931 Act violates | _f a8 28. Employees with ciyil service ' tenure or no tenure * at all: are probaby entitled to’a hearing. The former - group would probably be entitled to a hedring as a result of the State Civil Service Agt (chapter 1, Laws of the State of Washington 1961) while the latter-group wouid probably be entitled to a hearing as ‘a result of the Administrative Procedures Act (chapter . 234, Laws of the State of Washington _1959).. There are indications that the Supreme Court © off Washington would construe the Subversive Ac- tivities Act aiong with. these more recent acts. Since . a- hearing will be available te the Employees it is not necessary to rely upon cases involving im- position of a civil disqualification without a right toa ‘hearing. The question of Whether an. employee who refuses to-sign the, oath required by the 1951 Act would be entitled toa hearing is.a matter’ for con- jecture. ri: The 1955 Act is not dinsonatitetiqnally vague. Cramp v. Florida, 368 U.S. 278, is not applicable since the language of the oath jnvalved there -is much broader than the language involved in the present case. This Court has upheld penal statutes containing . language roughly comparable to that ‘involved in the present case. Once it is determined | that the statutes dre not void on their face this Court . will assume that a statute will be interpreted by the ; highest state court in such a Way as to avoid raising - constitutional problems. The wortls used | in the Sub-: versive Activities Act, as.aménded, in no way render iflegal or questionable the activities and associations | yo 7. \ ¢ ' 24 ‘listed by the Employees. This,. combined with the high measure of proof necessary to convict one of perjury, shows that Employees’ fears of conviction of perjury are withaut a reasonable basis. It cannot be argued that the 1931 Act is so vague as to render it unconstitutional since a violation of the oath, it being promissory. in form, i is nota , crime. The 1955 Act and the 1931 Act do not involve an : unconstitutional shifting of the burden of proof, sinee Speiser v. .Randall, 357 U.S. 513, is not ap- plicable; the present case involves public ernployees, - a group specifically excepted by the Court. in Spéiser; it does not involve a segment of the general public, © such as veterans, which bears no r ‘elation to.a specific societa! need such as combating. disloyalty among public employees. The 1931 Act has been interpreted as being not applicable to aliens. However, employees .who are citizens cannot claim.that they are denied’ equal protection of the laws a it would be unfair task aliens as well as citizen¢to “promote * * * undivided allegianee to the. gover nment of - the - United States.” : , Nor are other contentions of: the Employees valid. The oaths are not Bills of Attainder since — they do not involve punishment but rather a quali- fication for employment. In addition. they look to. . the present, they are not’ retrospective. The pre-emption argument Based upen Pennsyl- — vania v. Nelson, 850 W.S. 497, is not valid because that case has been-reduced to its precise facts by ° . o a es pee. Pe ~ Uphaus v. Wyman, 360 U.S. 72; and Sweezy v. New | - Hampshiré, 354 U.S. 234. The 1955 Act does not violate the: spnaiteabbiial pr ohibition against gelf-incrihination ; for the Em-~- ployees are not asked to testify against themselves. . They must, however, comply with the standards of * eligibility established by the legislature. There is no inquiry. into past conduct. Finally, the clause of _ the Fifth Amendment protecting a person against being compelled to he a witness against himself is not made effective by the Fourteenth Amendment. as a protection against state action. The district court was. -eorrect in’ dismissing Employees’ complaint with prejudice since the court ~ decided against Employees on the merits with regard to the 1955 Act. With regard to the 1931 Act the fact: that the court invoked the doctrine of equitable_abstention would only: ‘seem to preclude. 3 - the Employees from bringing; another federal court - action. It would foree them to go .up oe the 7 state cour ts. .Finally, the distr ict court. was correct in dis- missing the students since the statutes involved here ' directly affect the Employees but the effect on the -students is remote and speculative. ‘4 bei es 26° PART Ill THE 1951 ACT, AND THE PORTION OF THE OATH BASED THEREON, ARE NOT PROPERLY BEFORE THIS COURT - The Employees are asking this Court to declare portions of the 1951 Act unconstitutional despite the fact that the 1951. statute is not before the Court. One, searches the pleadings and, the pre-trial order - in vain for a clear request that it be declared un- constitutional. Employees have now tried subtly to. broaden their attack. Thus the statement is made that “the definitional ‘sections of the 1951 Act, set.- forth above: and incorporated into’ the. 1955 Act. ‘oe 1 oa (App. Br. p. 34). (Emphasis ‘supplied ). zf In other portions of this brief the Employees have asked this Court to pass on the constitutionality of those very definitional secticns. (App. Br. p. 67-78, for example) The Employees have thus begged the question of whether, under state law, the portions . -of the original statute set out in the amendatory act along with the new matter fall along with the new matter, if the latter is found unconstitutional. The Employees have begged the question of whether, _ under state law, one may: attack’ the definitional sections “through the: backdoor”. by attacking the words defined as they appear in an amendatory act even though the definitional sections, themselv es, are : not a part of such amendatory act. One. aspect of this broadening: attack is pre- sented by the Employees’ treatment of criminal sanctions. , ; ; oe One is ‘oulnoted against the imposition of. a criminal sanction by ‘a panoply of. constitutional - guarantees which are not applicable to the imposi- tion of a civil disqualification such as loss of public | employment. This is true even though the latter may, on occasion, be more drasti¢ than the former. — Quite apart from the crime of perjury, the 1951 statute contains certain criminal provfsions based on knowing membership in a subversive organizatier which, to be candid, would pose constitutional ques- tions if they were before this Court, in view of Noto ~ my » U.S., 367 U.S. 290 and Scales v. U.S., 367 U.S. | 203. Employees -have made frequent reference to ‘them as if they had somehow attainted the statutory provisions in question. (App. Br. p. 76 where. Em- ployees cite the criminal cases of Scales, Noto, both supra, Yates v. U.S. , 354 U.S. 298, and Dennis °. U.S., 341 U.S. 494, as authority for the proposition that a civil disqualification may not be imposed. ) In addition to creating confusion, Employees” - failure to challenge the 1951 Act directly creates _ two serious questions. First, can this Court on this record invalidate the 1951 Act?’ Second, assuming that the Court cannot, how would invalidation of the 1955 Act affect the 1951 Act? : We submit that the Court cannot invalidate the 1951 Act.. Employees have challenged an -adminis- ‘trative: measure, namely, the oath’ as formulated without challenging the statute upon which the administrative action is based. While this type -of challenge i is common enough w her e the administr ator aes ; | ? oe > + gg | _ has exceeded the bounds of his authority, and is not : acting within the scope of his statutory authority, it is surely a rarity where, as here, no claim is made that the action of the administrator is, without statu- tory foundation. On the contrary, they . have, by way of argument, attempted to challenge the defini- tional provisions of the 1951 Act. It would-be a- bizarre decision which str uck down an administrative measure clearly based tipon an unchallenged statute; ane would be an even more bizarre decision: which | invalidated a statute not before the court on the ‘basis of an ‘administratige act: A: portion ofthe oath is so directly bound to the 1951 Act, as pointed out earlier, that to challenge this ‘portion of the oath, the ag Emplovees must challenge the 1951 Act. This they. have not done. This they ‘cannot do for two reasons. . ' In the first place, Employees did not challenge 3 ' the 1951 Act in the lowe? court and may not do so for the first time on appeal. Shelley v. Kraemer, 334 "U.S. I. In addition; Employees. have not directly - ‘challenged the 1951 Act in their appeal to this Court.’ - The question i is thus not raised. U.S. v. Spector, 34 3 _U.§. 169: The question, at-best, lurks i in the record, and this 1s not sufficient. McNeal v. Culver, 365 U-S. "#190, This Court is rightly reluctant to pass upon constitutional! issues which are not 2a page pre-_ -” sented by the record, Arkansas F uel Oil Co. . La. ex rel. Muslow, 304 U. S. 197: poe Ls The: other question to be considered is, how | would invalidation of the 1955 Act affect the 19: 51 Act? = . 29 a. soe The general: rule, supported by Washington cases is: if the amendatory act is wholly invalid, — the statute sought to be amended is held to remain © in full force and effect. 1 Sutherland, Statutory Construction, 442 § 1937, 3rd ed. 1943. ‘SR North Bend Stage Line v. Dept. Public Works, 170 Wash. - 17, 862. (2d) 206, — the state eine court said ..- "at page 220: _ | ; j “* * * These sections, as unamended, provide for review of orders.of the department. in the superior court substantially as, by thése Brena ly they provide for such review in i Ae OuNG, 88 And @t page. 228 after holding ‘the grant of direct appeal from the department to the state su-- preme court sessierisascpae the.court said that the amended statutes “* * * remain unsuperseded and unrepealed by chapter 119, Laws-of Aigeie p. 363 > > * *” citing Corwin Investment Co. v. White, rt 166 Wash. ere i We: vu. Balmer, 58 Wn. Vea), 160, 335 P. (24) 10, the ‘Employees admittedas much.when on page 85 of. their brief to the state high court they unequivocally stated that, “To declare the entire 1955. Act un- constitutional is to leave the 1951 Act totally effective and to eliminate the problems of interpretation.” This, it might be added, would include Section s bee the basic provision making subversive persons ineligible for state and ‘local, employment. View ed in this light, the Employ ees’ references «- to the 1951 Act.and to the portion of the dath derived ‘fr Oni, the 1951 fst seem indeed w ide of the mark.. Q : oe PART IV THERE IS NO ACTUAL CONTROVERSY ° ‘THe’ DISCLAIMER OATH The two prior decisions by the Washington Su-- “preme Court in no way compensate for the un- certainties created by the pomnstice nature of this” rl Case. - . ; ~ Employees sonantadly ‘refer to the re actiaine, Nostrand. v. Balmer, 53 Wn, (2d) 460, 335 P. (2d) — 10; Nostrand v. Little, 58 Wn. (2d) 111, 361 P. (2d). 554, as if they cleared away any doubt regard- ing the ‘1955. Act, thereby making this case ripe for decision. But, in faet, these decisions are not all-purpose interpretations capable of resolving the kaleidoscopic legal questions which might arise un- ‘der the complicated, twice amended 1951 statute. ' They answer some questions but they raise many ‘more. The decisions illustrate the shortcomings of _ _ the declaratory judgment procedure; these -occur, i through no fault-of the court, where broad, sweep- ‘ing judgments are asked for by counsel even though a substantial bedrock factual basis’ for such broad judgments js lacking. The result,. of course, is that it‘is sometimes difficult to distinguish_the—- holding of the case from. dicta. For example, in the two: Nostrand cases, the court had before it only two plaintiffs, both full professors with tenure. ' The admissions of fact were brief, almost. cryptic. ’The findings of the- state trial court recited that through the professors’ “employment contracts and A —_— —— aoa - 3 Seas $1, _ pursuant “to statute and the rules and regulations of the Cniversity, plaintiffs. have certain . tenure ~ dri * * ** (Emphasis supplied) Nostrand ; Little, 58 Wn. (2d) 111, 117, 361 P. (2d) 551. . “Atter two hearings before the Washington Supreme ‘Court and one before this Court one still knows little - more than that the professors “* * * are.en-': * --titled to a hearing before the tenure committee con- ducted in the manner prescribed-in the applicable réles and regulations *,* *” 58 Wn. (2¢)~at | p. 132. One still does, not know the scope of Wash- — ington Supreme Court’s review. One does not know, whether, under the 1951 and 1955 statutes the Washington Supreme” Court would reverse as con- trary to law a decision on th¢ part of the hearing tribunal and affirmed. by the Board of’ Regents al- lowing a professor to retain his employment even though he refused to sign the disclaimer oath for ~ reasons of consciencé. One knows even less about the result of a refusal to sign-on the part of- those employees, if any there be, who have neither. academic tenure} civil service tenure, nor contract rights as. to tenure. One does not know: the extent to which ' the non-academic tenure system and the Administra- tive Proceduyes Act-wouid-afford hearings to. ‘those - empleyees without academ/e tenure. That the Wash- ~ ington court ap preciatedl the difficulties created, is obvious from ‘the court’s statement that even in a declaratory judgment proceeding: it is-reluctant -, to rule on a hypothetical situation. 58 Wn. (2d). “at p. 119. And, foreseeing how its opinion would . ou | . be a “tes ae prance shaded: “We, of course, | ~ dimit. our consideration of the problem to the facts before us. Even. in a: declaratory. judgment action, , there’ must be a. ‘justiciable controversy.” 5S Wn.’ at -p. 121. Nor does the court | leave: for ee the question of what the facts MPOF ek “The material. facts shown’ by the. record in. the present case as to.this hearing issue are that these two professors (who have never re- ‘fused to take the oath) are presently employed _ under contract as -full professors by the Uni- versity of Washington, which i8 operated ‘by the regents. Through their employment con- tracts, and pursuant to statute and the rules - ‘and regulations of the university, they have ., certain-tenure rights. [Fd8tnote omitted] The | regents Have demanded that the professors sign and swear to an oath (a copy of which is at- . tached to theiy complaint), and have further stated that, unless the professors cornplied with such demand, their employment contracts with the university will be terrhinated by’ the’ re- gents. ” 58 Wn. (2d) at p..123. : is The uncertainties surrounding this case seem ‘ much more. numerous than those pointed out-by Mr. Justice Frankfurter (dissenting ) in Adler u, _ Board of Education; 342 U.S.’ 485; 497: “We are asked to pass on a ‘scheme to coun- . _teract what are currently called ‘subversive’ ‘influences in the public s¢kool system of New _ York. . The scheme is formulated partly ‘in = - _ statutes and partly in administrative regula-- . tions, but all of it is still an unfinished blue- . . print. We are asked to adjudicate claims against its constitutionality before the scheme has been put into operation, before the-limits that imposes upon free inquiry and asseciation, 2? ° oars Ve A te cussion in Garner. Employees are driven to’ arguing ' that the Court erred in relying upon Miteheit-and ' that. the fact that the City of ‘Los Angeles could impose syich an oath on its civil servants. does not mean that .. Washington could impose one on its: state employees. (App. Br. ‘p. 53) The Employees have obscured.the precedential value of American Communications Association v. Douds, 339'U. Sz 382, by” lurgping the two oaths now before the Court together. The 1955 statute has no more “prescribed a state of mind”.( App. Br, p. 122) than has the statute involved in Douds. In fact, if Employees are to satisfactorily distinguish Douds _ they mist be prepared to argue that Congress. can impose a civil disqualification to prevent political — ‘strikes but a state cannot do as much’to combat subversion. Hencé, Employees’ attempts to distinguish the - foregoing cases are, we submit, _ unsuecessful. —~- May the state make the inquiry required , by the 1955 Act without violating the public employee's First Amendment rights? The Answer must ‘be in the affirmative. Adler v. Board of Education, 342 U.S. 485, Beilan v. . Board: of Education, 357 U.S. 399, Garner 1. ‘Board of Public ‘Works,.341 U.S 716, Empioyees’ reliance—see “for example, page 64 "a1 appellants’ brief—upon Sweezy. v. New Hanip- owe shire, 354 U. 5! 234, is strange, since the petitioner, ' Sweezy, wilitnaly answered questions ° which were i to the statements veqnfiréd by the 1955 statute. Sweezy denied that he had ever been a member. of the Communist Party or that he had ever been a part of any. program designed to’ overthrow the Governinent of the United States by force or by. violence.’ Thus, the question. whether a person could ‘be constitutionally compelled to-answer | ‘such questions. was not even before the Caurt. 354 U.S. at 239. Questions which Sweezy was directed to answer and which he declined ta answer did not reiate to his membership in the Communist Party | ‘but to his membership. in other political organiza- tions, his knowledge ‘of the “associations of other ‘ persons, statements he made in his tlassroom, and his belief’ in Communism, Some of the questions ~ were as s follows: eee a as 2. “Was Nancy Sweezy ew: Ww coker with . individuals who’ were therf members of. the ‘ Communist Party? “Was Charles Beebe active in. forming the Progressive Citizens of America? , . “Did-he work with your present wife—Did - Charles Bee&® work with your present wife in '194¥? “Did it: (2a meeting at the home of Abraham ps Walenko i in Weare during 1948) have anything ‘to do with the Progressive Party? “- “What was the subject of your lecture? ‘“Didn’t you tell the class at the Univ ing | of New Hampshire on Monday, Mareh 22, 1 that Socialism was inevitable in this eh Me “Did you advocate Marxism at that time? - ag . “Did you express the opinion, er did you / make the statement at that time that Socialism was inevitahble-in America? : . to aay in Communisrn?” 354 WS. 28,24. 7 | ; Because of his refusal to answer these questions, ; Sweezy was convicted of contempt. His convic- tion was affirmed by the New Hampshire Supreme | Court. On appeal to this Court, the conviction was reversed. This Court did not hold New Hamp- shire’s Subversive Activities stdtute unconstitu- tional on its face. The opinions deal. with the broad nature of the-questions asked by the Attorney | ' Gene e questions, four justices held, were im- - proper neous it was not clear that ‘they were authorized by the New Hampshire legislature. 354 U.S. at 253. No constitutional question was decided ‘in the opinion signed by these four justices. . Two justices held that the questions infringed _upon Sweezy’s constitutionally protected and aca- demic politicat-freedems, but_ they recognized . the .. distinction between questions concerning member-— ship salle Rimage Party and questions concer a- ing meré academic classroom references on Marxism, socialism or even communism. ‘Whatever, on the basit of massive proof _ and in the light of history, of which this Court. “may welP take judicial notice, “be the. justifi- cation for not regarding the Communist Party : as a conventiona! political ying no such justi- \__ fication has -been afforded in regard to the Progressive Party.” 354 U.S. at 266. TAe questions were quite different from the state- ements required “by the 1955 statute. Nor does Skelton v. Tucker, 364 U. S. 479 cast a Shadow on these cases;for, 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 relev ant to the present case.’ Uh tease a q . é ‘ 8. . v ~The Employees’ only hope ‘is for a reversal pf these cases. But the-trend js against.them. Barenblat? . UL S., 366 U.S. 109, 125-134; Wilkinson v. U. S. 365 U. 8. 399; Bradenv, S,,.365 U. S. 431; Com- munist Party tb. S-AC.B., 867 U.S. 1, 96-103. The ‘lower court was correct be pointing out that, “It cannot Fe tjuestioned. that a state has power to safe: guard the public“service from disldyalty ; ang: the. right, of the state to inquire of “its employees con- . cerning their loyalt¥ has. a bee recognized in a num- aN ber of cases:** (KR. O75 SSIS ie oa wae a 7 Regarding the form of the inquiry, the lower court held ( (KR. 244) that there ig.no violation of First: Amendment rights: simply because a written forni is vised rather than an oral form, such. as was used in’ Bedan. The key question is whether the written fort is: limited to the area of legitimate state concern. ‘ ‘The. lower court added, “In an ‘ins stitution as darge as Phe University of, W ashineton, to con- duet personal interviews of ial present and prospec- ; tive employees concerning their loyalty. would be pig iconanisobe burdensome. and nught be subjget & Jabuses. “in heu of such inquiry’ the university saisiais aes elected: to require fj swdrn stateméni, narrowly limited: tg the precise matters of legitimate state concerti. So limited, the oath Serves the sams purpose as individual inquiry. wR. 24h) 0 # The First Aniendmentar gumen tot. " hether me aa sciences and force them to abridgé their con- ° —_— sciences, and that this is particularly true of a appellants Matchett and Or ans.” (App. By Tol jink in 1931 Oath bf Allegiance statute With sew Ze Erte a denial of religious: freedom is also an untenable 9 ; - . ay. oa “eo? : ‘ 0 " : / : ‘ . ae . . P ¥ > . ss : J we }! . bs ore a 2 - : 4 . . . . “ . . bd ; , ~ 4 \ Be, es pit . . argument. The Seclia Court in Engel v v. Vitales - : "370 U.S. 421, carefully distinguished exprihsions : of patriotism from official prayers. | Saag “There is of’ course nothing it the decision . pos ti heré that is inconsistent With the fact that school children arid others are officially en- couraged to express love for our coyntry by . - reciting historical documents such ‘as the Dec- — * laration of Indepentience which contain refer- > “ences to the’ Deity ar “by ‘singing officially ” ‘espoused anthems which includes the Bicaneasr’ ’s . professions of faith in a. ‘Supreme: Being, or, ‘” _ with the fact that there are many manifesta- ‘tions in our public life of belief in God. Such ~~ ° patriotic or ceremonial oecasions bear no° true «. » -. resemblance to.the unquestioned religious exer- ' ‘cise that the State of New York has ‘sponsored «.- > in this instance.”. — U.S at page 435, ‘toot _note 21). | : > Re Summers, 325 U.S. 561, supports the vail S it of the 1931. Act. There, where a bar applicant. a had refused to take an oath to support the state. 3 - constitution, this Court held ‘it was nat. tinconstitus ‘ . tional for the state to deny him-admission to the bar. _ This-Was true even. though the state constitution’ had — ‘a “provision! requiring service in the militia in time “cof war. The applicant had’ ‘refused’ because a hie US 580. .They'are the product of extensive in-. . °. ‘i vestigation’ by‘ committees of . Corigress. over more than decade and a half. Gf. Nebbia v. New York, 291, US.502. We certainly cannot . dismiss ther as unfounded or irrational im- - aginings. See Galvan v.- Press, 347 US 522; American Communications Asso. . Douds, 339° Re: eh et Nor wili;this Court give lens weight té findings ‘of a state legislature which come to the Court ,“‘en- _ cased, in.the armor . wrought by prior: legislative deliberation. ° Br idges vw. Calif., 314 U.S. 252, 261. 3 ~ Conceding, arguendo, that. Zeonditions could a change to such a. degree _ as to vitiate a legislative finditig, the dangers’ resulting from.the communist : “movement referred fo in the Joint Committee's re- port (House Journal 1949, p. 1095 et seq.) have. not disappeared. This court has, in effect, recognized | _ | this “fact by deciding the Communist Party case, supra, on June 5,-1961, although it was based on legislation dating from 1950 to 1954. Subversive activities legislation was, passedin 1947,,1949, 1951, : i963 and 1955 . Argument that any of this legislation’ is invalid because additionatiegislative findings were — not made after 1949 seems strained, to say. the least. ~ The "Reports of the Joint Fact-Finding Com- mittee reinforce what this. Court should decide in “any event: There i is an interest of the. state in self- preservation which justifies the aetion of the legis- lature. After this ‘Court's decision i in G arner, Adler / os » 6 49 and Diuds, all oupre: it is.apparent that Employes ; = do not have a valid argument regarding the lack of © - societal interest to be ‘protected; their argument, if any they- have, must bé that the means sea to pro- tect this interest are unconstitutional. bse at? - Once it is decided that the state has a ‘legitimate interest in not keeping in its employ. subversive per- sons, as they are defined in the Subversive Activities _ One proffered "explanation: for this . change in. tactics is the availability of sufficient gov- ernment witnesses in the current investigation to | make, a criminal prosecution for false swearing _ stick.” Brown, R. S., Loyalty and Security, p. 94. Regents. would not even make reference -to the . - discussion (App. Br. p. 142): of the policy .of ‘the - ‘ at ee 50 University o of £ Washington sapietins sinter onthe . campus—it being not only outside the’ record but . ° irrelevant as. well—were it not for the fact that it is incorrect; the policy referred to was terminated by resolution on January 24, 1964, by the Board of Re- gents, a date subsequent to the publication’ of Appel- lants’. Brief. a9 ee af -PART VI THE 1955 ACT AND THE 1931 ACT DO NOT -" . VIOLATE THE FOURTEENTH. - ° AMENDMENT © THE EMPLOYEES WHO REFUSE TO SIGN THE Dis. _ CLAIMER OATH ARE upreiae ENTITLED TO, A HEARING. - . Employees’ argament that the 1955 Act ‘vio- | lates procedural due process in’ that it does not allow ‘a hearing seems to have three bases: The Washing- . ton Supreme Court allows no heari ing to non- tenured. - personnel and a sham hearing tétenured. personnel; — - no statute allows such a hearing, and the officials chiarged with administering the acts will allow no hearing, save. the sham hearing resulting from the : ‘Washington Supreme. Court’s detision. It is true that the statutes, court decisions, and administrative actions are the key factors, but Re- gents submit that they lead to the opposite. conelu-. sion. The Employees, it t will be noted, fall into th ee’ different categories: those with academic tenure: those with classified civil service tenure, and those with no tenure at all, save possible contract rights. © * : « aa a Peo? ih ae Pi heat “Maas eR ION The Washington : Supreme Court has squarely held that those with academic tenure are entitled. to a hearing. This has driven Employees into the extreme _' position of ciaiming that the Washington Supreme Court sanctioned a sham hearing (App. Br. p. 172), ‘a position which scarcely deserves argument. .— With regard to the other two categories. no such categori ic answer can be given since the Washington or high court haswnot spoken. ‘First, what i js the rule, regarding persons. with — academic-tenure? After Nostrand v. Little, supra, was remanded by this Couft to the Washington. high. court for determination of whether the pr ofessors would be accor ded a hearing, counsel for the profes- - sors argued that under law no hearing could be accorded to the professors. The state: attor ney. ar- ? gued to the contrary. In its decision the court held: “We are of the opinion that the vrovision in the subversive activies act to. the effect that re- “fusal to take the oath ‘on any grounds’ shall be cause for ‘immediate termination.of emyloy-- - ment,’ should not be interpreted in ‘the -case_ - before us as meaning that a full professor hav- ing tenure rights-under his contract of-employ- ‘ * ment is deprived of the right to a. hearing. as provided in the rules and regulations of. the university. ‘In other 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 pres¢ribed jn the - university’s: rules’ and régulations,’ set forth in _ the appendix to this opinion.” 55 Wr. (20) at p. 131. eS + re i y 52 _ But wheat, of leveeuin without: sendentic jimeidt * Employees’ argue that under Nostrand a. Little, supra, neither the Civil Service Act nor the Adminis- t: ative Procedures Act could be used to accord Em- : ployees a "hearing; ‘but ifi fact, . the question of whether persons without academic tenure could — take advantage of éither act was not before. the court. “On page 121, the Washington high court tried to . preclude just such @laims by stating: “We, of course, : Jimit our consideration of tie problem to the facts before us.’ ek The real 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 construed the 1955 Act with RCW. 28- .77.120 and 28.77.130 there is every likelihood that it would eonsider other statutes if the last quoted statutes were not applicable this would be the case if a person were ‘without tenire. ' The two statutes are the Civil Service Act, (chapter 1, Laws of the State of Washington 1961) and the Administrative Procedures. Act (chapter 234, Laws of 1959). It_should be noted that both acts became law somé years after the 1955 amenda- tory act. i. It is well to considet the Civ il Service Act first, since it appears to apply. to some of the non-academic employees who are among the appellants. . (The - record does not show that each non-academic em- . ee Ree See 3 The - Washington Supreme Court has sliced held | that those with academic tenure are entitled toa hearing. This has driven Entployees into the extremé — position of claiming that the Washington Supreme Court sanctioned a sham hearing (App. Br: p. 172), a position which scarcely deserves argument, . With regard to the other two ‘categories: no such categoric answer can be given since the Washi: zton high court has not spoken. ‘First, what is the rule regarding, persons with | academic tenure? After Nostrand v. Little; supra; was remanded by this Court to the Washington high | . court for determination of w hether the professors — would be accorded a hearing, counsel for the profes- « sors argued that under Jaw. no hearing could be ‘accorded to the professors. ‘The State attorney ar; gued to the contrary. In its decision: ‘the court held: . “Weare of the opinion that the provisign in the subversive activies act to the’ effect that re- fusal ta take the oath ‘on ‘any grounds’ shall ’ be cause for ‘immediate ter mination of employ- -ment;’ -shduld not be interpreted in the case before us ds meaning. that a full professor hav- ing: — ‘rights ander his contract of employ- ment is dpprived‘of the right to a hearing as ’ provided the rules and regulations of the university. In other words, if the professors should refuse to sign the affidavit (w hich they . , have not yet aie 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 - . the appendix to this opinion. 58 Wn. (3a) at P. 131, . P . yi) - : before us.” | 52 But what of | persons without academic tenure? °—E Employees’ argue that undér Nostrand v. Little, supra, neitherthe Civil Service Act’nor thé Adminis- “trative Procedures Act-could be used to aceord Em-. -— ployees a hearing; but in fact, the question of _ Whether persons. without academic tenure could | “take advantage of either act.was not before the court. On page 121, the Washington high court tried to preclude just such claims by stating: “We, of cgurse, limit our consideration of the problem. to the” facts . co . \ The real thrust of Nostrand v: Little, inee, is _ the fact that the court there held that a professor with tenure could net be discharged under the 195% Act alone and without r eference to any other statutes, If the eourt construed the 1955 Act with RCW, 28." . 77,120 and 28.77.130 there is eveiy likelihood that - it would consider other statutes if the last quoted , Statutes were not applicable this ‘would be the case if. - a person were without tenure.. : The two statutes are: the Civil Service Act. " (chaptr 1, Laws of the State of Washington.1961) and the Administrative Procedures Act. (chapter 234, Laws of 1959). "It should be noted ‘that both acts beeame law some. years after the 196 55 amenda- sie tory act. (res , . It is well to consider the’ ‘Ciyil Service Act first, e. | ! _ since it appears to apply to some.of- the non-academic | | employees who are. among the appellants. (The © record dees ot show that each non-academic em- . vo ee F : : : AS os : kat - ployee would come under the exceptions to civil serv- ice coverage Kisted in section 5.). Section 5 5 provides “in part as follows: “At each tnatitution of higher iecichen: the ‘o . governing body shall within thirty days after December 8, 1960 designate three of its mem- — . bers as a permanent personnel committee, com- pensated and“reimbursed as provided in RCW 41.06.110, to enforce and perform for all its non- academic personnel, except those in positions - specifically exempted ‘by the governing body on analogy to-the exemptions of * oan! . _ The extract from the minutes of a “meeting of “the Board of Regents on December 16, 1960, shows _ that the following action’ was taken: “It was noted that the civil service ‘initia- - tive whith was approved by the voters on No- vember 8, 1960, became laws on December 8, - 1960, and has legal application to the University of Washington. Under this law the. Béard of Regents is required to appoint three of its mem- ‘bers ‘as a Personnel Committee to administer _ ‘the provisions of the law on the campus. This . . Personnel Committee »will serve as the Univer- sity Civil Service Board. — “Attention was also called to: the fact that there are several items in the law which require action by.the Board at this meeting, since : such | action must be. taken before January 7, 1961. “These are: “That by January 7, 1961, the Board of ~ * Regents shall select three .of ‘its members to serve as a University Personnel Committee for _ terms: of tw o, four and six years (appointments ‘thereafter to be for six-year terms) to admin- | ister the provisions of the Ae 3 “That by’ January 7, 1961, the . Board of as takai shall designate a full time nonac ademic Oh a * Pe og ee ree ; 2 ot STE a SA er employee’ to serve as Director of Personnel to direct‘and supervise the Personnel Department — ‘and to popere for consideration by the. Uni- vérsity Personnel Committee proposed ruiles and _ regulations requiged by the law. ~ _ “Upon the recommendation of ‘President ; Odegaard, the Board appointed Mr. -Reginald _ Root go serve’ as Director of Personnel and. - named the following members of the Board of. . Regents’ to serve as the University . Personnel: ‘Committee for terms of two, four and six years, respectively : - “Regent Robert J. Willis, Chairman (two . years ) “Regent: Hayold S. thiefelean, Vice. Chair . man (four years), “Herbert S. Little (six wean): " The University Personnel Committee adopted. a number of rules on October 27, 1961, including Rule ° ,_ XIV. This rule makes applicable to those under. its’ jur isdiction the provisions of sections 18, 19, 20 and . 21 of the Civil Service Act, which _provide sor: _ hearing procedure. or But what of those Employees who are covered by neither civil service tenure nor academic tenure”. — That the Employees are hard pressed to find a reason. . . why a hearing would not be granted is evidenced by ° the: manner in which the Employees have empha- * . sized certain portions of the Regents’ statement. a App. Br. p. 172.) A.reading of the document simply indicates that the Regents intend to follow the law, it dées not indicate that under the law no hearing ; would be accorded tan employee. Likewise on: page 173 of. their. brief, Employees’ have italicized the oe . . ” 4 ad ’ o”. «6 4 7 7 . SBE 4 ‘ - F r, f BS. . words “on any grounds” found in the 1955 iis: | The effect would have been very different if, they. had sitalicized the following three words, “shall . ~ _be cause for immediate termination . oe (Emphasis supplied. ) There is, ‘of course, a great i difference between a matter being a cause -for im- .- ee mediate termination ahd a matter ‘which must result absolutely:in immediate termination.. ‘These Employees ave probably entitled a ee hearing under the Administrative Procedures Act. It is not a certainty because it has-never: -been passed -- upon by the Washington Supreme Court: This Court. Will, of course, assume that a statute will be inter. preted by the highest state court in such a way gsto - avoid raising constitutional - problems where such interpretation is possible, “Fox, v%. Fox sprites 236 - *. 108 S. 273. - Until this is done it is the inteftition: of the s state to allow a hearing on the assumption’ that it is better to err by allowing too much due process rather than ‘too little. Nor is there anything novel about such an. * approach. In’ regard to the third factor, state agencies ,; have, upon the advi ice of the state attorney general, on numerous: ‘occasions accorded a hearing to a party on the basis of the Administrative Procedures Act:.: where no specific hearing i is proviged by statute. An . -——- example of this is In re. Chrisiensen, No 84575 ' Thurston County Superior Court, State of Washing- ~ ton. In this case the director of-licanses granted! a hearing to an applicant who. had been efused as. broker's license even though such a hearing was not ‘“ eae Ae . 06 specifically provided by the. Real Estate Licensing Act (chapter 18. 85 RCW). There: are undouttedly tingps-wheri a hoitcing wild & seem appropriate. For example, if an individ- ual a ttempted to resign from a subversive organiza- a pe . .. . tion by’ communicating with one- of the members, it _ is possible this individual would not be sure whether : ’ his resignation was" effective, since. many, Oi sich ris organizations not having membership. cards and lists. - If such an individual were to ak for a hearing sb . a3 - tliat he ‘might explain the’ steps he had taken to attempt to resign it seems probable that the hearing would be allowed under Washington law and agmin- ee istrative ‘practice... ; To wired on Yhis point,. Ridnts. ae not an : that-a hearing is, ‘definitely required by the statute.. They need only’ show. that such a Fer ‘cannot. be ruled ‘out, United. Gas Pipe Line Co. -v. Ideal Cement Co., 369 U. §. 134, 136. The Sek bien should not be permitted to profit from the uncertain- | . ties arising from this action pecsuse of its prematur e° ‘nature. -Sinee a héaring is probably ace ae under | Washington law, it is pr obably not neceksary for aes to rely upon cases upholding the inapositipn-of a civil disqualification with no right to a hearing, such as Board: of: Gévernei's of. Federal Reserve. System v.- Agnew, 329 .U. S. 441, Gerende v. Board of. Super- a visor cf Elections, 341 U. S. 56, United Public | Workers v, Mitchell, 330 U.S. 75, American Com- ~~ xo \ ee. a”; s vad eee ef iO 8 ay e : ,; * ad Ne 3 r . a ° § ° oa o, . a |.* 5&7 munications Benet PPL Douds, 339 U. S. 382, and Cafeteria Workers v. McBtroy; 367 US--886____- How. migh this act provide such a hearing?. . ' Section 9 provides. in part: ‘In any contested case all parties shall be affordéd’an an opportunity for hear- ing after reasonable notice. * * *,” Seetion 1” - defines a’ contested case as “** = * +23 proceeding: -before an agen¢y7in which the legal Siete duties, or _ privileges of, specific parties are required by, law or | constitutional right to be determnied after an agency” hearing.” ( Emphasis supplied. ), ' : Gnecchi uv State of Washington, 58 Wn. (2d) ". 467, 864 Py (2d) 225, a case. decided en bane a fer {aout after Nostrand v. Little, supra, went beyond what was strictly necessary to reach its : holding’ to indicate that under thé Administr ative Procedures Act, such an employee-w ould pe provided a hearing ae thre lack of a hear ing would deprive him ‘Of acon: -stitutional right. . The. court seemed to be follwing ‘ the’ Jead of this Court. (See W. Ong Fang Sung v: McGrath, 339 U.S. 33.) | . : One final uncertainty with refésence to ah dis: « ~ claimer’ oath should be: mentioned. The record ‘is + silent as*to the provisions of. any employment con- tract. It is impossible to, determine, : ther efore, whether any of the Employees would. acquire any - hearing rights in this WA 5 ; Wuertiy AN { EMPLOYEE Wuo Revuées TO o SUN THE. ‘OATH WOULD BE ENTITLED TO A Spucaioagisk ip A MATTER, FOR CONJECTURE: “ ~It cannot be denied that® literal reading of the vies statute indicates that there is Jess chance thal __ ‘a person gefusing to sign the oath it requires would : --be afforded a hearing than “would be the case with” -- ’ the disclaimer oathi; yet if the Washington. Supreme . 5° ‘#Court were tp read the 1931 statute in pari materia with some other statute, such as the Civil Service ; would hardly be more surprising than that ‘court’s holding ir Nostrand v. Little, 58.Wn. (2d) 111, 361 P, , (2d) 55 Pon the hearing issue. This leads: again we the question’ ‘of whether the case is ripe’ for de- “cision, w hether there is an actual controversy. (The ao . Act or the Administrative. Procedures ‘Act the result - % Court is referred t#’Part. IV fora discussion of this ; : 0 pha ee : bec, hee Bieter os { “s A . . ‘y / Mag ohn Act Dogs Not VIOLATE Constity TIONAL ; 1UARANTEES | AS TO 'V AGUENESS., In dealing vith this question (App. Br. pp: -186- Age). Employees’ difficulty comes not ‘ffom ‘stating the general rules but froni: attempting to apply we. - general rules to this particular casey . The oath. required, and: ‘the statutes on w which it is based, are not unconstitutionally vague ; the tevin : used therein are susceptible of “objective measure-,, ment: = | ; - Exhplay ees . have quoted no cases W hich ‘militate against the. validity ‘of this oath. Cramp v. Florida, 59 Meaty ie .. 868-U. S: 278, relied, upon by Stuaplapeee on page 192 of their brief is not applicable for the oath involved in .Cramp ‘can hardly be compared with the oath in _the present case.. Fhe former oath provides i in part, “* '* *> that I;have not and will not lend my. aid, support, advice, counsel or infldence to the Com-’ ; - munist Party *.-* *”. The Court, itself, seems to Have. distinguishedsthis case from Cramp. when, - _ on- page 286 it pointed out that: ~" “The provision of the oath here in anton. : 3. it is to be noted, says nothing of advocacy of ‘ . % -* violent overthrow of state or ‘Federal Govern-~ ment. It says. nothing of membership -or affilia- ~ tion’ with the Communist Party, past,or prese Thé‘provision is completely lacking i in these or any’ other terms suscejitible of objective meas- urement.”’” (Emphasis supplied. ) ° This Court denied certiorari ina case ‘involving: alleged vagueness of the Obey Act w hich, as pointed out earlier, is very similar to the 19: 51 Act. Shub’ cision based upon the Shkub interpretation. But even more. Significant is the fact’ that this Court has af-- | firmed prison sentences—a far cry from this declara- | tory’ ‘judgment procedure—stemming from. statutes * yesembling the § Subvepsiyg Activities Act. One ex- ample is the Smith Act, 54 Stat. 671, 18 U:-S; C. 2285 (Supp.), as amended.. The statute reads. in. _ part: Foe ot ae is - “Whoever Sauringty or - willfully adyo- Pad i : a. . ‘ “Simpson, 196 Md. 177, 76 A. (2d) 322, 349 U-S. 861. Also significant, is the fact, that this Court affir med ‘Gerende v. Bd. of Supervisors, 341 U. S. 56,-a. de- Zee cates, abets, advises, or teaches the duty, neces- . 3? Z 60 ; , sity, Bion or propriety of averthrowin * or destroying the goverhment of ‘the Uni States or the government of any State, Terri- District or Possession thereof, or the gov- - GArent of any: political subdivision thertin, by f or violence. * _ * “Shall be fined not more than $20, 000-or - | bots not more than twenty years, or _ Dennis 'v. United States, 341 U. S. 494, sustained © this statute in the face of an allegation, inter alia, that it was unconstitutionaHy vague.- In rejecting : the « contention, the Court said: : | “We: agree that the iniadiad: as defined is not a neat, mathematical formulary. ‘Like all © verbalizations “it is subject ‘to criticism on the scoré of indefiniteness * * “* * © We think [the statute] well serves to indicate to those wh would agvocate constitutionally prohibited conduct that there is --a line beyond which they ‘may not go—a line which they, in full know edge of what they in- tend and the circumstances in which their ac- - tivity takes place, will well as aa and un- . derstand.” Regents submit that if a- aicoinel statute, ae make it “unlawful to— “advocate 56 he abet _ i e * ie 2. eae? et ~ the violent overthrow * * * of the gover ‘nment of the United States, or the gov erriment of any State * *. *” without doing violence to the principle of. uncons itutional statutory vagueness, a state is free re to require an oath in approximately those ternts with- out doing vidlence to that principle. | ; . The point is made that some of the infor mation gained by.a Communist government has possible - military application. (R. 57) Admittedly, if the - test were, does the exchange of information consti- tute, aid, suppdrt, counsel or advice to the Cont- munists, as was true in Cramp v. Florida, 368 U. S.. "278, the constitutionality of. this. statute would be ~ - more’ difficult to defend. This; however, is not the * test, since the 1955 Act sets forth much more specific requirements. . Nor'can it be said that one - engages in the activities set forth by the Employees “aids in the. 66 : conimission or advocates, abets, advises or teaches by any. means, any person to commit; attempt to commit, or aid in the commission of any act intended . . to overthrow, destroy or alter, or to assist in the ° overthrow, destruction or alteration” of our con- Stitutional form of government by “révolution, force, or violence.” (RCW 9.81.010(5)) Where the Flor- ‘ida statute speaks of “lending aid, support, advice, ; _ counsel or influence,” the Washington statute speaks in terms of aiding the commission of specific acts of ; violence. Thus ‘it is clear that the actual threat of gl perjury conviction is very different from the Em- " ployees’ fear of. such convietion. 3 tl ' oS SPerjury requires a higher measure of pinot : than any other crime known to the law, treason alone. “ excepted.’” (State v. Wallis, 50 Wn. (2d)°350, 311. P. (2d) 659 (1957).) After starting its opinion with. . the above quote the Washington Supreme Court pro- ceeded ‘to point out, quoting’ an earlier case, that to conv ‘ict one of perjury: "+ “ “There must be the direct testimony of at ; least one credible witness, and that testimony to - ’ be sufficient must be positive and directly con- tradictory of the defendant’s oath; in additien to such testimony, there must be ejther another such witness or,corroborating circumstances es- _ tablished by independerit evidence, and of such ° a character as clearly to turn the scale and over- come the oath of the defendant and the legal 29% -presumption of his innocence. Otherwise the de- _fendant must be sii ered . (50 Wn. (2d) at p. 353) - ee “This igaioeidl of the Washington ‘Supreme 38 Court .as to the great quantum of proof necessary ~ to convict one of perjury underscores the lack of a reasonable basis for the Employges’ expressed fear. “THE 1931 Act Dogs Not VIOLATE CONSTITUTIONAL : GUARANTEES AS TO VAGUENESS. Employees assert, as if it were a fact, that “iny * affiant who subscribes falsely to ‘the statutory oath ‘of undivided allegiance, in addition to loss of em- ployment, subjects himself to possible perjury prose- _* eution; ‘punishable by imprisonment in the state penitentiary for not more than fifteen years (RCW 9.72.010, et seqg.),” (App. Br. p. 29) The statute’ cited: is. the state’s perjury statute. . But is is not a crime to violate. the oath. The’ * oath provides, “I. * ‘* * will ‘support . ™ ~ + : . ‘and will * ° * promote. * * “*” It is thus’ promissory in form. It is not a disclaimer oath. One promises to, do- certain things in the future. Can a~ .. Man go to jail for. failing. to car¥y out his promises? No, according to any ‘legal authority. fe egy have - | & found. The rule is found in 70 €. 4.3 . 462, Sec. 6, . Perjury: “A promissory statement ordinarily cannot constitute perjury or ‘false swearing *.* * ordinarily it is held that an official »oath cannot be — the subject of perjury in so far as such gath i involves statements purely promissory.” If the’ legislature . had provided a specific penalty for breach of this promissory oath the rule would not apply. The rule _ is set forth in State v. McCarthy, 38 N. W. (2d) 679,686 (255 Wis. 234): i a te 68 Re aes : “The official oath to vilhich | the aesuicdait a subscribed does not affirm the present existence of a fact, and relates to the future conduct of “the affiant. The affiant solemnly promises that. he will support.the constitution of thé* United States and the constitution of the State of ‘Wis- _ eonsin, and that he will administet justice with- - 2out respect to persons, and that he will faithfully — and impartially discharge the duties of his office. Such an oath is called a promissory oath. eS “Violation of an oath of ee does not. constitute perjury as that offens is defined in the law. “In 1 Hawkins, PC, 431, ‘first published in 1716, a standard text-on English criminal ‘law, the rule is tated thus: “ ‘Also from what has been‘said it appear s that the notion of pexjury is confined to such ~ public oaths only as ae of fact contrary to nowledge of. the party ; and therefore, it doth not extend to any promis- sory oaths whatsoever. “*\| ~* *” The. fact that it is no crime for a person to vio- _late this oath is the death of Employees’ argument: “that the 1931 statute’ violates the due process.clatse , because of vagueness. Employees have hot produced one case where this Court struck dow na statute due to vagueness itivolving a ‘sanction or, lack of Sanetibn _ - comparable to the present case. On the contrary, the ; ~*~ eases dealing with vagueness involve a criminal sane-" tion or sanction such as deportation even more di'as- tic than many, if not most, criminal sanctions. (Jordan v. De-George, 341 U.S. 223. See the anno- tation, ‘‘Indefiniteness of language as affecting Valid.” : ity of criminal legislation—Supreme Court cases,” 98 L, Ed. 374.) m or deny some matter es * « omed rie ie alae a Cae THE 1955 ACT AND THE 1931 Aor Do Nort ishjouve _AN UNCONSTITUTIONAL SHIFTING OF THE Bur- 3h _ DEN OF PROOF. * Citing Speier. v. ROndall, 357 U.S 513, as au- thority, Employees claim that the 1955 Act: involves a denial of procedural due process in that it shifts the burden of proof to the public employee. (App... Br. pp. 182-186) - While the Employees’ argument -might have - merit were the oath demanded ofthe public in general, it has no merit where, ‘as here, the oath requirement is directed to a specific. group: ..- to wit, public employees. A much more substantial > societal interest éxists where.a state inquire’ into the loyalty and fitness of its public: employees than ~ where a state inquires into the loyalty and fitness of . vetekans, or members of a particular race or religion. _ The petitioner in Speiser prevailed 7 in this Court ) because of an unconstitutional] alfecation of the bur- - _dengof proot - ina tax exemption proceeding: This Court went to great lengths to distinguish certain . disclaimer oath cases involving a- specified. group ie where the oath fequirement is backed up by a-sub- Stantial state interest. Specifically, this Court on ‘page 527, with reference to‘Garner v. Bd. of Pub. Wks., 341 U.S. 716, Gerende v: Board of Supervisors, 34] U.S. 56, and American Communications Asso- “ciation vx Douds, 339 U. S. 382, said, “In these cases, ’ however, there was no attempt directly to’ contro! - speech: but rather to protect, from an evil shown to be “grave, some interest clearly within the sphere of gov- \ \ . ¢. . x > . j « ° . ° > 4 ¢ p 4 ee, . /* Se ‘ ww? é > ‘ ° o. 4 2 . . . . . 4 , ' ee 4 * . id - fs we : ‘ ‘ “5 2 é . ; 70 “Taga ae oieieiad concern. On. page 528 the Court said, “The State "argues. ‘that: veterans: asa class occupy a ; position of special. trust and influence inthe commun- ity, and, therefore any veteran who engages ‘in. the proscribed advocacy constitutes a special danger to the State. But while a union officiét er rv, publie em- _ ployee may be deprived of his position an¢ thereby re-. moved from the place of special danger, the State is Bi . powerless to erase the service which the veteran has rendered his country; though he be denied a. tax. - exemption, he remaitis a veteran. The State, conse-. quently, can act against the veteran only ‘as it can ZA act against any other citizen, by imposing penalties to deter unlawful ¢onduct.”’ The Speiser case, then,® cannot bé used as authority'to support the claim that the 1955 Act involves 2 deprivation : ‘without proce- -. dural due process. Since violation of the oath requir ed by the 1931 ia Act is nota crime, the very-concept of “shifting the burden of proof?’ would not seem to apply. A bare ‘promise, the breach of which involves no. criminal sanction, would hardly suffice to shift the burden of proof. | 3 ae é ; THE 1931 AcT4NVOLVES NEITHER A DEPRIVATION OF SUBSTANTIVE DUE PROCESS NOR A DE NIAL OF EQUAL PROTEC TION UNDER THE Law. _ By drawing aftention to. certain parts of the ; > pre-trial order, Employees, on pages 102 and 103° . of their brief, have ‘given the impression that aliens are for ged to take the oath required by the 193 1 Act. / ‘\ é 71. ; Zoe i ; This i is “not! in fact, correct. This is not oe pravtice ; of. the University af Washington and nas: nét been — - as the practié. =. 0 vee x ' The pre-trial ‘order must he ‘ read a asa mele Thus the statement of the President of,the Univer- sity of Washington (R. 175-1 79) and another para- ‘graph of the pre-tr ial order (RK. 159) must be read . along with. the portj W here aliens are tr eated spe- cifically. It reads, ‘For many years, the past prac- | tice at the Univer}ity of ‘Washington with regard, to teaching faculty who are aliens, and at all times ‘material to this. cause, has been similar to that sug- ,. #f gested by the memorandum circulated through the ra department of Matheniatics and reproduced below.” (Emphasis supplied. ) The. memorandum “referred to points out. that, “The last clause of the first sen- tence which reads, ‘and undivided allegiance to the ; government of the United States’ may be replaced by the phrase ‘insofar ds it is compatible with my’. , citizenship’ _ Eat ENS ”” (R. 158-159). _ Who can say what ‘other oath form Ww bul he “simi- - lar”? Yet, on page 103’ of their brie , Employees “actublly state, =? -""*. * the record is clear that . an oath, perhaps. a modified 1931 dath,. Has alWays’ - been requirad;of all: alien-professors. ett oes - ‘This Court cannot pass 6n a “modifiél”’ oatl, which wre is ‘‘similar”’ to the one set, for thin the above memo- * penta: One thing is certain. The'very word *modi- | fied” means that..it is*not the 193 loath. | : Thus,sEmploy ees’ claim that, this oath is ‘arbi- ‘trary aml herice void under the, @e process clause, + * an 7 Q.. : & ali s ‘ : 72 mh ‘in that it requires siioa to take i an oath of undivided allegiance to the: United States, thereby placing them’> yin the invonsistent. position, of- averring Jundivided allegitince to one government ‘while retaining the - ; - citizenship of ‘their native country, sam of its: own es ae ot It is’ at least arguabie that ‘the leplaiadats 7 intended ‘the words, “every person applying’ for a. (fcenee to teach: °*. >,” to cover not, “ev per~ fson”.in the ° bindadeit sense but every person who should’ owe allegiance td this couhtry. It is to be. noted that: legislation. was énacted prohibiting aliens -from teaching. in Phe. conimon schools’ (chapter 88, Laws of: 1919, RCW 228. 67.010, et sey.) Three. ‘deeades"thter, chapter 32 Laws of 1949 {RCW 28- 67.020; ‘yart) amended, Section Y of the 1919 att | to allow exchange’ teachers. in the public’ schools . « “Irrespective of reqdirements respecting citizenship and oath of-allegiance.”’ Neither, statute referred: to g° institutions of higher educatign. This- demonstrates “that. the Washington Legislature in 1949 assumed* that the 1931. cact did not’ apply to, institutions. of higher education. But; of courte, W hether the Jong- ‘ standing interpretation of the 193}... act by the ad-..: > " ministuative agencies—even thought? is entitled to. great weight—is the correct intébpretation, is, a _, question for the state courts. Employees claim (App: Br. pp. 100- 101) that ‘if the 1931 oath does not, apply to aliefis as w ell as ac itize ns the latter have been denigd equal protection’, ¢ “ v Re @ . o gh ‘of the jaws. The question in all “equal protection” cases is whether a reasonable basis for an allegedly’ .- unconstitutional classification exists. Phillips Chem- ical To. ve » Dumas Independent School De ict, 361_ | Ba: 336 U. S. 220; N. y. Rapid Prar - of New Yerk, 303 U.S. 573. The th ‘is‘not only reasonable but tends t unfairness to alien employees withovt- in any way derogating from °the-constitutional rights of non- -- alien employees since the oath of allegiance as ap- 6 fe: { ° : . a . plied to them creates fewer problems. : - PART VIL a ee. OTHER CONTENTIONS OF EMPLOYEES TUTE A BILL OF ATTY AINDER,’ _ The omissions made by Employees’ i in intér pret- "ing e Cummings v. Missouri, 71.U. S.. (4 Wall.) 277, | THE 1955: OATH REQUIRENENT Dors Nor Consti- and- United ‘States v. Lovett, 328 Ue S. 303, defnon- re strate the invalidity of their argument that Wash- ington’s -disclaler oath . requirement is a bill of _attainder. + | 7 . "prospective and cite no case in w ‘hich this court has found a prospective uct to be a bill of attainder: The ’ acts struck down. in the Cummin - and Lovett cases and in Bx parte ‘Garland, 71 U, S..(4 Walk.) 333, all involved: punishment for. past sande It is true that the punishment for past. misdeeds was often ) ‘Employees adimit that ‘the oath. ig this case is aoe a conditioned’ ona future act, but: in each case the | individual punished could not have avoided the sanc-. tion. As one writer has pointed out in 28 Rocky Mt. Li. Rey.:258: “Garland and: Cimpsites: could not alter - the fact that they had supported the confederacy - in- the Civil War. Lovett, Dodd, and Watson could never again qualify as governmental em- ployees -whe er thee changed their loyalties or not.” - 3 The Employees’, on page 103 of their brief have "used, completely out of context, a- quote from Justice Frankfurter’ s concurring opinion in United States , , Lovett, supra, to support their argument that a ° bil of attainde. ‘heed not also be ex. post facto’ in » order to be objectionable.. An additional few lines from that opinion demonstrate that the Employees’ quote is nt apposite. At page 323 of U.S. v. Lovett, Justice Frankfurter wrote: “Frequently a bill: of gitaiader was thus. doubly objectionable Secause 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 shal! be . passed.’ No one claims that § 304 is an ex post facto law. Lf it is in substarice a punishment for acts deemed; ‘subversive’ (the statute, of course, 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 lath, the reasons that establish that it is not are. persuasive that’ it cannot be a bill of attainder. No offense is Speci- fied and no declaration ef guilt is made.” (Em- ‘phasis supplied. ) ; . A ‘ tes "5 Whether or ‘not that pialimnints was syplicable in the Lovett casé, we submit that it-is certainly | applicable in the preSent case. In other’ words, the ‘fact that. the statutes involved in the present case are prospective is convincing evidence that the act _~- Was not an act of punishment but rather a regulator y ~~ aétte coritrol the future action of those coming under the act. A member of a subversive organization can- not claim that he is penalized merely because thé State requires him to resign from a subversive | or- ganization as 2 condition” of his employ ment by. the _ ‘state. The requirement. of nommembership is rea- sonably related to the end sought: tr aeeeaeny. = | lic employees. Employees wholly ignore. the iC tes 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), the Washington. Supreme ' Court. followed Garner ». Bd. of Public Work: s, 341 U.S S. 716, where this Céurt said on p. 720: “s *.'* The provisions operating ehus ' prospectively were a reasonable regulation to protect the-municipal service by establishing , ‘an employment ‘qualification of. loyalty to: the Staie and the United States. Cf:-Gerende ‘+. Board of Supervisors of Elections,-341 U.S ' 56, ante. Likewise, as a regulation gf political activity of municipal employees, the amendment - was reasonably’ designed: to protect -the inte g- rity and competency of the service papi aud a State is het wit thout power to do as nmruch." (E mphas sis supplie d. ) ———, - a“ Se 76 ' The fact is that the oath “requirement in the present case works less of a hardship on the person - affected than the erdinance and charter amendment involved in the Garner case, supra; for nere a mem- ber of a subversive: organization may resign today" . and take the oath tomorrow. Justices Burton’s: ‘and Frankfurter’s: objections to the Garner ordinance are “not present here. ! | If the oath was an empliyment qualification in the Garner case, it is an employment. qualification here. In the Douds ease, supr¢, the Court said on page _ 391 in upholding the “non-Communist” affidavit pro-_ vision of the Taft-Hartley Act that voluntary affilia- | tions and beliefs justify an inference concerning’ Auture conduct when drawn by the legislature on the basis of -its investigations. If the oath was valid as regulating future conduct in the Douds case, it is so in.the present case. The Employees’ brief coRttains considerable dis- cussion about Bills of Attainder being prospeetive. How ever, there is a dearth of argument tmshow that . the affidavit requirement constitutes a Bill, ef At- tainder even assuming, arquendo, that one could be prospective. To ‘begin “with, Employees ‘have not shov.n any punishment, and punishment is certainly a prerequisite. Employees have s shown nothing to negate the belief of the lower, court’ that the oath ° | requirement is a reasonable employment: qualifica- tion. ‘As Mr. Justice Frankfurter said in his con- .. curring oninion in United States v. Lovett, supfra, On - page 324: 5 7 By CS ye Be ; 77 z oa “The fact that harm is inflicted by gov- -ernmental authority does not make it punish-— ment. Figuratively speaking alfdiscomforting action may be deemed punishment because ‘it . deprives of what otherwise would be enjoyed. But there may be reasons other than ptinitive for. such deprivation. A man may be forbidden” tc practice medicine because he has been con- victed ‘of a felony, Hawker’ v. New York, 170>. U. S$. 189, or because he is no longer qualified, : Dent v: West Virginia; 129 U.8. 1i,""" Hence, even assuming, arguendo, ‘that a bill of attainder could be prospective, the act in question is not.a bill of atfainder but is an employment qualitica- tion. This being true, it would be gratuitous comment for the ¢ourt to comment-on.the possibility of “pros: pective bills of attainder.”’ It w ould involve over- ruling, in part, several .cases. aa »._ it is submitted ‘that there is no merit to me ployees’ contention. ; oy i, ' A ° ° . THERE Has BEEN No PRE -EMPTION OF THE 1955 Act. “The holding in Pennsylvania v. Nelson 350. U. S. 497, so heavily relied upon by the Employees, has been reduced z its precise: facts by Uphaus ?. > Wynian, 360. U.S. 72, 76&77 and Sweezy v. New Hampshire, 354 4 S. 234. The portion of the State statute involv a in the | pre-emption argument in the Sweezp and Uphaus cases, supra, is the same as. Washington’s. The U 'phaus case in 1959 is the last case to discuss “pre- ‘emption.” There the Court stated that the pre-emp- tion contention “was denied sub silentig” in Sweezy, 78 ances _and thus, with these comparable statutes under con- sideration, the pre-emption argument appears fore- closed to Employees here as.well. In Uphaus, at page’ 76, the court distinguished facts within the Nelson ' case from the case rp consideration andl stated.:’ pple dat: 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 | Government of the United States by force and violence, supersedes the enforceability of the Pennsylvania Sedition Act which proscribed the same conduct,’ (Italics 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: prosecutors a x .* ad rare , the. cour thouse door. - The court proceeded, then, to enumerate areas ° which states could certainly lezislate against. (For an excellent discussion of the Nelson :and U phaus | cases and loyalty oath requirements in general see Professor Cramton’s article in 43 Minn. L: Rev:- 1025, 1959.) a pote ’ The Employees’ confusion to their pre-emption . argument as stated on page 203 of their brief that alien professors must take the Washington. State Oath of Allegiance is an erroneoys statement. dis- proven by the records in this vase, as shown in Part VI of this brief: - ee se In answer to Employees seéond argument on pre-emption (App. Br: p.,198), if the State of Wash- : ington or any other’state chooses to set up require- m ments. for its. employees which do not permit it to accept Federal monies for the teacher or student exchange programs it may be a detriment to the stute; however it is incorrect to state that a refusal i. en the state to accept optional Federal monies for. _ teacher or student ex anges: “SQ interferes - ‘with — American foréign policy as ‘to render the legislation - upon which. the refusal is based unconstitutional. " Ris therefore: submitted that Employees’ argu-- “ment concerning pre-etaption —— be: denied: _——. THE 1955: Ker OES Nor Regu IRE SE LF- INCRIMINATION. — Employees’ contention, |, that the 1955 statute is * void as requiring plaintiffs to 1 o incriminate themselves — With respect to their own disloyalty, is strained, | _ without merit and should be re, ected. The state high court. interpreted this: statute ~ ‘in relation to the Fifth Amendment.priv ilege against peters ge in Nostrand v. Balmer, 53 Wn. . (2d) 460, 477, 335 P. (2d) 10, and found no merit . in a similar contention. -There the court stated: “Respondents are not compelled by section 2° Hare twelve to do anything. But, if they desiré to re- - | -main in public employment, they must ‘comply Se . With the standards of eligibility established by . the legislature, * * - The disclaimer oath ‘would be relevant in & pr esecution for perjury only as the dccasion w hieh Employees used to commit perjury. 2. - Since Employ ees are not being yequired ti to give” « testimons against themselves, Nostrand v. Balmer, ~ ay a) es ae 80 » The three-judge court properly refused to ad- « jyglicate questions involving the 1951 Act. Martin v.* ‘Creasy, 360 U.S. 219. (4959); United: Gas Pipeline. Company v.. Ideal Cement Company, 369 U: S. 134 - (1962); Cf. eunotation, Remission of issues to state court, 3 L. ed.:2d 1827; (compare a similar order by this court in Nostrand v. Little, 362 U.S. 474 (1960) _ and 368 U.S. 436. (1963) ). In any event, the dis- missai with prejudice as‘to thé 1931 Act only pre: _ _ cludes the Employees from bringing another ‘action 96 eae cemeenenee se sees <8 ee nee Seacoast ‘in the federal court until after the state court ine : authoritatively construed that act. | : The lower court upheld the constitutionality of ° “the 1955 Act and the ‘dismissal with prejudice was the proper order with which to terminate the litiga- tion. The Employee’s s contention is without merit. : oe THE Derhicr ‘icons WAS CORRECT IN DISMISSING _ THE STUDENTS. . Allowing the students to. challenge the consti- tutionality of the statutes involved here would do ~ violence to a longstanding judié ial —_ This Court observed in United” States : Johnson, 319 a 302. 308, that it would sort to decide any: dispute which ‘does not assume the ‘honest and actual antagonistic assertion of rights’ to betadjudi- cated——a safeguard essential to the integrity of the judicial process, and one which we have vheld to be indispensable*to adjudication ‘of constitutional : -questions by this Court.”’ Accordingly, in Poe v, Uliman, 367 U.S. 49%, this Court refused-to pass upon the constitutionality of a state statute where the moving party was unable - - to show that he was threatened with its immediate enforcement. wipe« , Beaded A The general principle from thése cases is ap- - plicable here since the statutes challenged in this case have no direct application to ‘atudents; have ~ never been enforced against students and were not | intended te affect stud ents. ‘The students’ cannot _ show even an indirect injury. q . _ regard as well. “CONCLUSION” - The legislation is not perfect. It is controversial. ) Many doubt its wisdom. -But.it violates no constitu- tional provision and. the route is open to legislative amendment and repeal. The wisdom of the statyte is, _ of.course, a matter for the legislature, not the courts. @ See Daniel v: Family Security Life Ins. Co., 336 U. S. 220, at p. 224. There is no reason for Employees to lose faith in the democratic process, a process which repeals oath requirements as well-as creates oath : requirements. They should not be permitted to-avoid the “rough and tumble” of the eae through this ~ cial challenge. ‘ Court should affirm -the. lower court with 3 ion its disposition of the challenge te the 1931 Act. ‘Should this Court. find that a justiciable con- troversy exists with regard to the 1955: Act, _this Court should affirm the lower court’ S decision i in that ; ) Pes Vi Respectfully’ submitted, ! JOHN J. O'CONNELL, Attorney Generul. _ HERBERT: H. Fu LLER, Deputy Attorney General, DEAN ‘A. FLoyp, . . Agsistant Attorney hicaisaae Attoriie, ys for rae: ‘ge Se se --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0063%3A7. Public record. Not legal advice.