Petition for Writ of Certiorari — Pranger v. Break (No. 913)
Supreme Court brief1960
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Petition for-Writ of Certiorari to the District Court
ot Appeal of the State of Calkiornia, Fourth
Appellate District.
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SUBJECT INDEX
PAGE
_ Opinions below... a ensoseonssoness teseecccosmeeeecenennmeecsssnieecensemessectenensenntsntees 2
The record Lo leak See RO 2
| Questions presented for TOVIEW .----eeneeeeeeteeeenssnenceee SUSER SE Users | 2
Constitutional provisions involved. .....................-c-c---ascsecesneesersee 3 -
Chronology of events and descriptian of the te ee 3 ‘
Staiement . of * St SE. eee no 6
The expressed reason “for the discharge of : ceuceutions
. because of the philosophy contained in his expression of
opinion deprives petitioner of due process of law and
_€quai protection of the law... eeeesseeseeeeceeees eeeeee 12
Il. :
The order of discharge being so broad, vague and uncertain
; deprives petitioner of due process of law... 25
Ill.
- The expression by a public employee of his opinion advocat-
ing the right to strike for public employees is protected
by the Fourteenth A:nendment
Conclusion
Appendix A. at of the District Court of Appeal ian :
senses : : a App. p. 1
»
Appendix °. Copy of Original Record on ‘Appeal... App. p. 13
TABLE ©F AUTHORITIES CITED
: mak Cases . PAGE
Abrams v. United’ States, 250 U2 S. 016..00..20.eceseceescssseeseeeseeee 30
Baumgartner v. United States, 322 U. S. 665.0000... tee 30
Bley v. Board of Dental Examiners, 120 Cal. App. 426........ 27
Board of Education v. . Barnette, 319 U. S. 624 fines 14
Bridges v. California; 314 . S. SRE Sea ale 30.
California v. Taylor, 353 U.S. eae teesscasnccennessstnesssendennnnen 33
Cantwell v. Connecticut, 310 U. $. 96.20.2020 PER otusdibodins 30
Cline v, Frink Dairy, 274 U.S. 445.2cccccccccccssssssse: CHR
Cole v. Arkansas, 338 U.S. 343 cscs Re Neen ear 27
* ‘Caste, a eeats, OO. 6, PR a,
Teoma wv. Covegpomn, BOF UF, G, SOB nasi cscs ensncnctesneconneenenns 13.
Dyment v. Board of Medical Examiners, 57 Cal. App. 266.... 27
Fox y. Washington, 236 U. S. 73...... ; pesch WE de Ree PneSaN Ye 31°
Gitew-s. New Vouk, 08 U.S: 62.8...
Herndon v. Lowery, 391 U. S. Ra. PRR ee ee 14
Jones v. Opelika, 319 U, S. “i Rt SS. AOI 30
; Lanzetta” v. New Jersey, 306 U. S. 451......... "A SAT TERNS . 26
Los Angeles Metropolitan Transit Authority v. Brotherhood
of Railroad Trainmen, 54 Cal. 2d 684.220.000.000. ecco 33
Louthan v. The Commonwealth; 79 Va. Rep, 196......0.0000...004. 24 n
Milk. —* Drivers Union v. Meadowmoor Dairies, 312
ee ee
Near’ vy. Minnesota, 283 U. 5. 697 ihe bi oe. Dano
Railway Employees Department v. Hanson,.351 U; S$. 225...... 33
Schenck v. Unitéd States, 249 U. $.. 47.0.0. ie
Schneider v. State, 308-U. S: 147.000.000.000... SAR POO Ae 30
Stromberg y. California, 283 U.S. 369... ce cesses ae
Terminiello v. Chicago, 337 U. 5. 1... aeanne Sennen 30
Thornhill v. Alabama, 310 U. S. 88...........: licenieannecarmcacceraitin 26, 30
ant 20 a to CAT “CU them | ‘
r :
RAN NA atk ae" A ins. OB SORE cle ncn cont
+
3
é
=
:
iin Nea wha th titan A te OR SIL they Vaid We
a
. . PAGE
Whitney v. California, 274 U. S. 357... MPRA ete AEE
_ Wieman v. Updegraff, 344 U. S. 183, 97 L. Ed. 216... me
Wi inters v. New York, 333 U. . 507 ARBs ecconsscecesisensnnenescsi 14, 27
Vanes v. United tee Be 0e a ee a
| RULES :
Rules of United States Supreme Court, Rule 19(1)(a)......... 2
“Rules of United States Supreme Court, Rule 22(3)........ 2
Revised Rules of United States Supreme Court, Rule 12(4) 2
; STATUTES
California Health and Safety ‘Code, Sec. 24198 ....0.cc.0:ce0- a
California Health and. Safety Code, Sec. 24212........0.0---00- wy,
"United States Code, Title 28, See. 1257(3) cc ccc 2
United States Constitution, First Amendments... 0.0.0... 30, 34
United States Constitution, Thirteenth Amendment.................. 35
_ United States Constitution, Fourteenth Amendment...... ~ 34, “35
United States Constitution, Fourteenth Amendment, Sec. 1... 3
_ San Bernardino County Ordinance No. 580........ Ren
San Bernatdino County Ordinance No. $80, See. Meco 6 .
Texts0oK: :
Chafee, Free Speech in the United States, p. Sol
; IN ‘THE
SS Supreme Court of of the United States
ae os Citar Tenn; 1008
i | TA deenssctancey
. Epwarp PRANGER,
Petitioner,
; US.
| : S. WesLey BrEAk, Macpa Lawson, Paut J. YOUNG,
Nancy E. Smitu, DanieL D. MIKESELL, as mem-
bers of the Board of Supervisors of the County of |
San Bernardino, acting ex officio as the Air Pollution
Control Board of the Air Pollution Control District
_ of the County of San Bernardino; Donan S. C. AN-
DERSON, STEWART B. Mason, Herpert S. BAILEY,
FRANK Downey, Huco WILDE, as members of the
Civil Service Commission of the County of San Ber-
nardino; COUNTY OF SAN BERNARDINO, a municipal
: aE,
Respondent.
Petition for Writ of Certiorari to the District Court
- of Appeal of the State of California, Fourth
Dries District..
so Petitioner, Edward Pranger, respectfully prays for
a Writ of Certiorari to the District Court of Appeal
of the State of California, Fourth Appellate District,
| .in order to review its judgment affirming a judgment
_ of the Superior Court* of the State of California, In
and For the County of San Bernardino, denying the
+ -petitioner a Writ of Mandate.
| =
a Opinions Below.
The date of the judgment sought to be sontunei
es the time of its entry is November 21, 1960.
_ 2. A petition for hearing in the Supreme Court of
the State of California was denied on January 18, 1961.
3. The statutory provisions believed to confer juris-
diction on this court to review the judgment in ques-
tion by, Writ of Certiorari are 28 U. S. C. 1257 (3)
and Rule 19 (1)(a) and Rule 22(3) of this court.
The Record. a
On or about February 9, 1961 petitioner filed with ©
the District Court of Appeal, Fourth Appellate Dis-
trict a notice to prepare and certify the record for use
before this honorable court on a petition for certiorari.
On February 27, 1961 said court made its order ‘pur-
suant to Rule 12(4) of the Revised Rules of the Su-
preme Court of the United States, transmitting the
eritire original: record on appeal to the Clerk of the
Supreme Court of the United States for inspection by .
said court. Copy of that order appears herein as ial
pendix B.
Questions Presented for Review.
1. Does the discharge by a. municipal body of a_
"public employee with Civil Service tenure, solely be-
cause the body objects to the philosophy expressed’ by
the employee in an ‘editorial in a union newspaper, de-
prive such employee of due process of law and equal
protection of the teow? ———
2. Isa public employee, who ~ Civil Service regu-
lation is entitled to a hearing upon discharge, deprived
a BP pat ers.
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— naaeuenes ~ .
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—
of. due process of law by reason of the failure of the
municipality to specify the particular wrongful act, if
any, which it is claimed the employee committed ?
3. Does~the discharge by a municipal body of a
public employee with Civil Service tenure solely .be-
_ cause’ of theexpression of. an editorial opinion in a
union. newspaper advocating the abstract right to strike
for public employees deprive such employee of due
_ Process of law and equal sceueie ‘of the. law?
Constitutional Provisions Involved.
1. Section 1 of the 14th Amendment of the United :
States Constitution provides in part:
6s
. nor shall any state deprive any person of
. property .. . without due process of law.”
2. The 14th Amendment of the United States Con-
stitution provides in- part that all persons shall be en-
titled’to equal protection of the law.
Chveinianie of Events and Description . of the
~ Record.
On iis 20, 1958, by letter addressed to petitioner
-he was notified that he was dismissed effective 5:00
p.m. Friday, August 29, 1958. On August 23, 1958,
in accordance with the Civil Service Ordinance of the
County. of San Bernardino, petitioner answered the
charges made against him and appealed to the Civil
Service Commission.
On September 12, 1958, the appeal of Edward Pran-
ger came before the Civil Service Commission, and, at
- , petitioner’s request, was continued to September 23,
1958. The transcript of that hearing, which was of-
, elie
fered in evidence in the Superior Court below, will be
identified herein as “Civil Service Comm. Reporter’s
Transcript (1)” or “CSC R. Tr. (1).”
On December 10, 1958, the Civil Service Commis--
sion resumed hearings on the issues’ raised by peti-
tioner’s appeal. The transcript of those proceedings,
offered below, will be identified herein as “Civil Serv-
ice Comm. Reporter’s Transcript (2)” or “CSC R.
Tr. (2)’. At the conclusfon of the hearing, the Com-
niission affirmed the dismissal of petitioner.
He commenced a proceeding in mandamus in the
- Superior Court to review this decision of the Civil
‘Service Commission.
Respondents answered and the matter, proceeded to
trial: The cause was submitted.upon the joint pretrial
statement, pre-trial conference order, and the exhibits
listed therein. No further evidence was _ received.
Thereafter the trial court below determined the issues
adversely to petitioner, and petitioner. noticed an appeal.
The Clerk’s Transcript on — will be identified
herein as “Cl. Tr.”
As the parties agreed, and the pretrial order _indi-
cates, respondents were the duly elected and acting
members of the Board of Supervisors of San Ber-
nardino County. Prior to the happening of the events
herein, the Board of Supervisors had established an
Air Pollution Control District pursuant to ‘Sections —
24198 to 24212, inclusive, of the Health & Safety
Code, and the members of the Board of Supervisors —
were at all times acting as ex officio members of the
Air Poilution Control Board of the Air Pollution Con-
trol District.
Se ae ie iaaban ONC al
.
| othe
ilies
At all times there existed a system of Civil Service
in the County of San Bernardino.
Prior to August 20, 1958, George R. Bean was the
duly appointed and acting Air Pollution Control Of-
ficer, and petitioner was employed by the Air Pollu-
tion Control District as a Clerk IV and was paid
therefor the sum: of. $327.00 per month (ch Tr. p.
31].
&»*On August 19, 1958, S. Wesley Break, Chairman
of the Board of Supervisors, wrote petitioner, notify-
ing him that the Board had determined to, and had
dismissed him [CSC R. Tr. (2), p. 10, line 24]. ~
The following day the respondents met at 9:30
~a.m., sitting as the Air Pollution Control Board, and
apparently discharged petitioner again [CSC R. ‘Tr.
(2), p. 11, line 10].
Not satisfied, at 10:00 a.m. respondents met again
this time as the Board of Supervisors and apparently
once again discharged petitioner [CSC R. Tr. (2),
- p. 11, line 1].
This spate of official action of respondents was pro-
voked by the obdurate refusal of the Air ‘Pollution
Control Officer, George Bean, to discharge petitioner.
Bean had met with the Board on August 19. At that
time respondent Break told Bean that if Bean did not
discharge petitioner, the Board would ats m an @
5, line 2]. |
A second meeting was held on the afternoon of the
19th between Bean and all members of the Board. At
that meeting. Break said, “You will not fire Mr. Pran-—
ger, will you?” Bean steadfastly replied, “No, I refuse
to.fire Mr. Pranger.” [SC R. Tr. p. 6, line 16.]
9]
——
On August 20, the Board met again and Mr. Bean’
was again present. Once again he was asked to dis-
charge Mr. Pranger, and once again he refused. Mrs.
Morris, a Deputy County Counsel, was also present on
— this occasion. Some question was raised by Mrs, Mor-
ris as to the propriety of the action which had been
taken thus far to dismiss appellant [SC R. Tr. p. 7,
line 12). +
“Mr. Bgeak then said to Mr. Bean, “Will you aie
our orders write the letter of dismissal?” [SC R. Tr.
p. 14, line 15]. Bean said that he would, under or-
ders [SCR, Tr. p. 15, line 14}. .
Bean reiterated, on the 19th he refused to dismiss.
On the 20th he again refused to dismiss [SC R. Tr.
- p. 16, line 15]. Then, because the Board insisted on
discharging petitioner, Bean resigned as. Air Poilution
- Control*Officer [SC R.°Tr.. p. 18, line, 7].
Statement of Fact.
Prior to igs dismissal petitioner as a permanent em-
ployee of the County of San Bernardino enjoyed Civil
Service tenure. He could not pe discharged except by
an order in writing stating specifically the reasons
therefor. He was entitled to reply in writing to said
order within ten days from the date of its filing and
demand a hearing before the Civil Service Commission.
The petitianer was entitled to appear personally, pro-
duce evidence and to have counsel and a public hear-
ing [Set. 11, Ordinance No. 580, p. 16,-Cl. Tr. on
Appeal]. On August 20, 1958 such an order of termi-
nation purporting to be in compliance with Ordinance”
580 was served upon your petitioner. The. order is
) .
~
er Bis wet add. Nh
=
set forth herein full and at length, and appears at
page
*
20 of the Clerk’s Transcript on Appeal.
“AIR POLLUTION CONTROL DISTRICT |
SAN BERNARDINO COUNTY
172 West Court Street :
San Bernardino, California
August 20, 1958
Mr. Edward Pranger
Air Pollution Control Office
San Bernardino County _
San Bernardino, California
>
-_
“Dear Mr. Pranger:
| “Upon direction of the Board of the Air Pol-_
lution Control District I have been ordered. to
notify you of your dismissal from your Clerk IV
position in the Air Pollution Control District, and
do hereby notify you of your dismissal, effective |
5:00. p.m., Friday, August 29, 1958.
“This action, pursuant to Section u of Civil
Service Ordinance 805, is based upon ‘conduct un-
‘becoming an employee as exemplified by your ac-
tions at a Rialto City Council meeting and your
editorial comments in the August, 1958 issue of .
the San Bernardino County Union Employee news-
; letter.
“The specific dete are that the shitneks ’
expressed in the above-mentioned editorial is inim-
ical to public service, and that you used abusive
language with respect to Mr. Marvin Gray and
- —8—
reporter - Mary Lawrence, at the Rialto City anal
cil meeting. x P fs
“You are also informed that under -Civil Service
Ordinance 805 you have five days to file a request
for an appeal and ten days to file an answer to
these charges. : |
Very truly yours,
j
GEORGE R. BEAN, tees i
_ Air Pollution Control Officer =
GRB:fm a, , ,
cc: Civil Service Commission. :
Board of Supervisors”
The order of discharge refers to the opinions ex- +
pressed by petitioner in a newspaper editorial contained
in the August, 1958 issue of the San Bernardino Coun- G
ty Union Employee Newsletter. “
~ That editorial read as follows:
, EDITORIAL .
- “Newspaper headlines continue to blare out the
fact that the cost oz living is rising. They also
bleat out the assurance that employees in private
_wndustry have received increased wages to meet
this cost of decent Americart survival.
“They need not do it as a means of advertise-
ment.: We in the San Bernardino County employ
are keenly aware of it without the necessity of
‘ .reading about it. When the monthly accounting
time inevitably rolls-around, we ‘kngw that wé are
orphans in a spiralling economic tornado. 9
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POM heii MGs igs
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“Are we in the San Bernardino County employ
some sort of weird exception td recognized stafid-
ards of decent living in our locale? Do Se
‘weirdies’‘ purchase our subsistence from a special
cutraté supermarket? Do «we ‘weirdies’ pay our
_ utility bills at a special discount? Is there a spe-
cial free market for us to pay our rental, pur-
chase our transportation, clothing and sundry ne-
cessities of life? — °
“The answer is an emphatic, ‘No’. We are fish
swimming in the same economic sea as dwells the
entire Southern California populace. With - one
exception. "The majority of us have been relegated,
through the’ Board’s indifference, to play the role :
of bottom fish.
“For the first budgetary time in recent years,
our Board of Supervisors has lent a deaf ear to
the economic facts of life when it comes to the
need of the employees who administer the govern-
ment they supposedly supervise. Our Union has.
appealed to them with supplication, mild agitation,
and arbitration in an effort to nudge. them from
their ‘ostrichized’ head-in-the- sand attitude of ‘hold
the line’ —to fo avail. 2
“"' there aft immediate, or via long range
‘remedy to this situation? Perhaps, but ‘the medi-
cine is bitter. It calls for varied applications of
‘lawsuit, slowdown, sitdown, walkout—or that fi+
nal, bitter dose—the strike. Whatever antidote is
prescribed, it can ‘orily be attained through the
media of strong Unionism.”
3 —10— '
Upon the conclusion of the hearing the Civil Service
Commission made its findings and order [Cl Tr. on
- Appeal, p. 21], which reads as follows:
“This appeal having regularly and duly come
before this Commission for. hearing, and the above
named Appellant having appeared by Counsel and
having presented evidence, and the appeal having
been submitted to this Commisison for decision upon
the a ae (Commissioner
Stewart Masof not participating) having consid-
ered this evidence, the Commission unanimously
finds that the dismissal of Edward Pranger_was— >
_ legal in that it was the- intent of the Air Pol-
lution Control Board to dismiss Edward. Pranger.
and ‘the order ‘dismissing him was ‘transmitted
. through: the Air Pollution Control Officer over
his signature.
“The ‘Conimission further finds, with reference
to the charges filed against Appellant and dated
August 20, 1958, that Edward Pranger is guilty.. ©
as charged, ‘of conduct’ * unbecoming an employee,
. .as exemplified by his editorial comments in the
August, 1958 issue of the San Bernardino County
Union Employee Newsletter.
_ “The ‘Commission having found Appellant guilty
of the charges filed, further’ finds that such acts
of the Appellant constitute cause for dismissal pur-
‘suant to the Rules of the Civil Service Commission
a
+ Stet RY
hae orc te ee
—
of the County of San Bernardino. It is the con-
' sidered opinion of this Commission that Mr. Pran-
ger demonstrated a lack of the essential loyalty,
mature judgment, and the proper spirit of cooper-
‘ ation, so vital to good government in this County, |
NOW THEREFORE, IT’IS HEREBY OR-
DERED that dismissal be andhe same is hereby
affirmed. ; | |
Dated: December 30, 1958.
CIVIL SERVICE COMMISSION OF SAN’
— ~ BERNARDINO COUNTY, CALIFORNIA
| Donald S. C. Anderson
Donald S. c. Anderson, Chairman”
Apparently the Commission eniel in favor of your
petitioner insofar as the Rialto City Council incident
described in the order of discharge i is concerned in view.
of its failure to make findings thereon, ‘and. limited
its entire basis for the discharge of. your petitioner to
the editorial comments in the union newspaper. ;
{ dann
ARGUMENT.
: I.
The Expressed Resta for the Discharge of Your
Petitioner Because of the Philosophy Con- —
tained in His Expression of Opinion :Deprives
> Petitioner of Due Process-of Law and Equal _
Protection of the Law..
7 ‘An ‘examination of both the order of discharge aind
the Findings and Order .of the Civil Service Commis-
sion’ make it crystal clear that petitioner was deprived
of his employment, because. of ‘his beliefs rather than
becausé of any act, action or i ingucement to action.
His employer discharged him because “the philoso-
phy expressed in the above mentioned editorial is inim-
ical to public service”. and the Civil Service Commis-
sion af firmed this discharge, making as a specific find- -
ing that petitioner: was guilty of conduct unbecoming
an employee ‘ ‘as: exemplified by his editorial comments
in the August; 1958 issue of the San Bernardino Coun-
ty, Union Employee Newsletter”.
If this discharge and the affirmance of this dis-
charge’ depriyed. petitioner of a property .right, it is
subject to constitutional attack. - This honorable court
has heretofore said: “We need not pause to consider
whether an abstract right to public employment exists.
It is sufficient to say that constitutional protection
does extend to the public servant whose exclusion pur-
suant to a statute is patently arbitrary or discrimina-
tory." Wieman v. Updegraff, 344 U. S. 183, 97 L
Ed. 216. |
It is difficult to find in the reported cases of our
courts as rank and deliberate an act of censorship as
\
—,
exists in the instant case. That petitioner has been
' deprived of free speech is clear. Does the record indi-
cate such a set of circumstances as would warrant such |
a ‘deprivation? |
What we have here is. not a restriction upon the
exercisé of free speech but its absolute and complete
abolition. Free _speech’ may be absolutely prohibited
only under the most pressing types of emergencies.
Those emergencies must be of. the kind that justify
the suspension of the writ of habeas corpus or the ©
suppression of the right of trial by jury. (Milk Wagon
Drivers Union v. Meadowmoor Dairies, 312 U. 'S.
287, 320.) As this court has cogently noted, the
greater the importance of safeguarding the community
from incitements to the overthrow of our institutions
by force or violence, the more imperative is the need
to preserve inviolate the constitutional rights of free
speech, free press and free assembly in order to main-
tain the opportunity: for free political discussion, to
the end that‘government may be responsive to the will
of the people and that changes, if desired, may be ob-
tained by peaceful means. Therein lies the security of
the Republic, the very foundation of constitutional gov-
ernment. (DeJonge v. Oregon, 299 U. S. 353. )
“The power of a state to abridge freedom. of
‘speech and of assembly is the exception rather
than the rule and the penalizing even of utter-
ances of a defined character must find its justifi-
estion in a reasonable apprehension of danger to
organized government. The judgment of the leg-
islature is not unfettered. The limitation .upon
individual liberty must have appropriate relation
~~
to the safety of the state. Legislation which goes
beyond this need violates the principle of the Con-
stitution. If, therefore, a state statute penalizes
- jrinocent participation in a meeting held with an
innocent purpose merely because the meeting was
held under the auspices of an organization mem-
bership in which, or the advocacy of whose prin-
ciples, is also denounced as criminal, the law, so ©
construed and applied, goes beyond the power to
restrict abuses of freedom of speech and arbi-
: trarily denies that freedom. And, where a statute -
is sO vague and uncertain as to make criminal”
an utterance or an_act which may be, innocently
‘said or done with no intent to induce resort to
violence or on the other hand may be said or’ done
with a. purpose violently to subvert government.
a conviction under such a law cannot be sustain
> Herndon’ v. Lowery, 301 U. S. 242.
To the same effect, see Winters v. New York, 333
U. S. 507; Board of Education v. Barnetic, 319 U. S.
624.
In each of these cases wherein the right of free.
speech was defended and reiterated, there was evidence
of some incitemertt to either action or to discussion
which might lead to action. Here, however, we do
‘ not have the I. W. W. organizer making a speech in .
a southern mill town or a communist organizer shout- —
ing at a street corner in an Oregon timber town, or
a radical agitator standing on a park bench in a New
York park.
We have a civil servant protesting in muted terms
against the unfair treatment which he felt was being
—15—
imposed upon public employees. For this he was sum-
marily discharged. |
It requires little imagination to guess the effect that
this discharge had upon petitioner’s fellow employees.
It requires little imagination to guess that thereafter
the employees of the County of San Bernardino would
docilely accept whatever treatment was given them with-
out murmur or protest. .
As Professor Zechariah Chafee, Jr. noted in his work
on Free Speech in the United States: .
“The effect of suppression extends far beyond
' the agitators actually put in jail, far beyond the
pamphlets physically destroyed. A favorite argu-
ment against free speech is that the men who are
: thus conspicuously silenced had little to say that
i - was worth hearing. Concede for the moment that -
a the public would suffer no serious‘loss if every
communist leaflet were burned or if some promi-
‘nent pacifist were imprisoned, as perhaps might be
under the loose language of the unprecedented fed-
eral sedition law passed last year, for discourag-
ing drafted men by talk about plowing every fourth
* boy under. Even so, my contention is ‘that the
pertinacious orators and writers who get hauled up
‘are merely extremist spokesmen for a mass of more
thoughtful and more retiring men and women, who
share in varying degrees the same critical attitude
toward prevailing policies and institutions. When
you put the hotheads in jail, these cooler people
do not get arrested—they just keep quiet. And
2 aS eh PD eo. eet
-
ER NS eee A Pe
be very advantageous for the future: course of the.
so we lose things they could tell us, which would © —
nation. Once the prosecutions begin, then the
hush-hush begins too. Discussion becomes one-
—Sided and artificial. Questions that need to be
threshed ‘out do not get threshed out.” -
Free Speech in the United States, Zechariah
Chafee, Jr., p. 561.
In recent years the tendency has been to relegate pub-
lic employees to a form of second class citizenship.
The Hatch Act, and similar types of state legislation,
while originally designed to protect the public employee
from political pressure, have been warped into a form
of repressive statute. From time to time, Ex parte Cur-
tis, 106 U. S. 371, has been cited for the proposition
that public employees may be required to give up their
constitutional right to free speech in exchange for their
public employment. That this is not so is patent from
the statute and its history and froma reading of the |
Constitution of the United States. The clearest state-.
ment ot the right.ci public employees to enjoy their
Constitutional privileges appears in a massive opinion
- by the Supreme Court of the State of Virginia.
_ “It-is admitted also that Carter M. Louthan isa
citizen of Virginia, and that he has never in any
wise, abused this inestimable privilege guaranteed to
all her citizens by the state in her organic law.
It is admitted that the said plaintiff in error has
committed no excess in the exercise of his rights
of citizenship, it is only alleged that-he did peace-
_ably assemble together with his fellow-citizens, and —
did advocate a certain set.of electors for president
and vice-president of the United States at the com-
ing election in November next. For this he has
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- been indicted by a grand jury in the City of Rich-
mond, tried for it and convicted, and sentenced
to be punished. Now why may not Carter M.
Louthan do these acts, in themselves so harmless,
and under the supreme law of this land so entirely
lawful? We have-already seen the act in ques- .
tion. which has declared the exercise of these con-
stitutional rights a crime. What is it that makes
the exercise of these rights of the citizen by this
citizen a crime? Because he has been appointed to
and holds the office of county. superintendent of
schools in the County of Clarke. It is concluded
by: the commonwealth that because he is the in-
cumbent of this office, the legislature, in the exer-
cise of its general powers, may impose upon him
such conditions, such restrictions as to it may seem |
for the public good. The learned attorney general —
has presented before this court the case on the side
of the prosecution; and he contends first, that ahe
plaintiff in error being an officer appointed by the
state board-of education does not come within the
‘provisions of the constitution already recited ; in
other words, that being an officer, he is not a citi-
zen within the conteraplation of the constitution;
tht the legislature has the right to exclude the of-
ficers of the state government from incompatible
pursuits; that the legislature felt thatthe active .
participation in politics by school officials was an
evil that should be restrained; and contends that
the legislature has the power to make all needful
laws and regulations to carry into effect the pub-
lic free school system provided for by the constitu- ”
tion; citing the case of Ex parte Curtis, 106 U. S.
Reports (16 Otto), 371.
5 elles
“Tn that case the Supreme Court af the United
States, in construing the act of Congress prohibit- |
ing the employees of the government, under pen-
alty, from giving or receiving moneys for political
purposes, held that act not to be unconstitutional.
' The act of congress under consideration in that
case, provides ‘that all executive officers or em-
ployees of the United States, not appointed by the
president with the advice and consent of the senate,
are prohibited from requesting, giving to, or re-
ceiving from any other officer or employee of the
government any money or property, or other thing
_ of value, for political purposes, and any such offi-
cer or employee who shall offend against the pro-_
visions of this section shall be at once discharged
from the service of the United ‘States, and he shall
also be deemed guilty of a misdemeanor, and, on
conviction thereof, shall be fined in a sum not ex-
ceeding five hundred dollars.’ Mr. Chief-Justice
Waite, delivering the opinion of a majority of the
court, said: “The act is not one to prohibit all
contributions of money or property by the desig-
nated officers and employees of the United States
for political purposes, neither does it prohibit them
altogether from receiving or soliciting money or
property for such purposes. It simply forbids their
receiving from or giving to each other. Beyond
this no restrictions are placed on any of their po-
litical privileges.’ That the evident purpose of con-
gress in such enactments was to promote efficiency
’ and integrity in the discharge of official duties,
and to maintain proper discipline in the public serv-
ice; that those in office can contribute as liberally
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as. they please, provided their payments are not
made to any of the prohibited officers or em-
ployees.
“That being so, that is the political priv tiie of
these officers and employees being unimpaired, the
court held the act in question constitutional. It
is clear from the opinion of the court in this case,
that if the act in question -had debarred the per-
sons included therein from any political privilege,
that the’court would have regarded it as a differ-
ent question altogether. But the chief-justice does
not leave this matter to conjecture, but proceeds
to show, in a strong light, that the act in question
was, in effect, an act to preserve and ‘to protect
the-paliticat privileges of the persons included in
its ‘provisions ; that the effect of the act was to
prevent oppression, and to leave the employees of
the government free to contribute or not to con-
tribute, according to their own uncontrolled desire,
)
to any political party, or to no political party, as.
a free inclination might suggest or dictate; and to
protect such persons from being compelled to con-
tribute their money in a manner contrary to their
own wishes and sympathy.
“He says: ‘A feeling of independence under the
law, condyces to faithful public: service, and noth-
ing tends more to take away this feeling than a
dread of dismissal. If contributions from those in
public empioyment may be solicited by others in of-
ficial authority, it is easy to see that what begins
‘as a request may end as a demand, and that a fail-
ure to meet the demand may be treated by those
having the power of removal as a breach of some
by
supposed duty growing out of ‘the political relations
of the parties. ‘Contributions secured under such |
circumstances will quite as likely be made to avoid
the consequences of the personal displeasure of a
superior, as to promote the political views of the
contributor—to avoid a discharge from service, not
to exercise a political privilege. The. law contem-
plates no restrictions upon either giving or re-
ceiving. EXCEPT SO FAR AS MAY BE NEC-
ESSARY TO PROTECT IN SOME DEGREE
THOSE: IN. THE PUBLIC SERVICE)
AGAINST EXACTIONS THROUGH FEAR
OF PERSONAL LOSS; referring to the act of-
February Ist, 1870, chapter 63, Rev. Stat. 1784,
‘To protect officials in public employ.’
“The court says further: ‘No one. can, for a
moment, doubt that in both these statutes the ob-
ject was to protect the classes of officials and em-
ployees ‘provided for from being compelled: to make
contributions for such purposes through fear. of
dismissal, if they refused.’ And that, ‘political par-
ties must almost necessarily exist under a republi-
can form of government, and when public employ-
ment depends to any considerable extent on party
success, those in office will naturally be desirous
of keeping the party to which they belong in power.
The statute we are now considering oe not inter-
fere with this.’
“This is he: case of Ex parte Curtis, and we
- have thus fully. recited and considered it, because
it is appealed to by the learned attorney-general to
uphold the act of the legislature in this case, which
as we have seen, forbids certain citizens and of fi-
eset fon sitAdlawtrsgitiosinhasie ah A ND
Cy ee
, -—21—
cers of the state government from taking part in
political meetings and speaking their sentiments’ on
political questions freely according to their own un-
trammeled desire. |
“The supreme court of the United. States de-
clared the act of congress constitutional because
it did not destroy but protected the political privi-
leges of these employees of the governinent, and
guaranteed to them the right as freely as all others
if the country, to act on political questions accord-
ing to their Own desire, and support shee a con-
trol, and without let or hindrance, the® —
- party which they preferred.
“We cannot réad that case and regard it as giv-
ing countenance to congress, or to any other legis-
lative body. to seal the lips of citizens, and exclude
them-from the assemblies of the people. unless they
will sit dumb among their fellow mgn, and to for-
bid their holding communion with i a fellow-cfti-_
zens on governmental questions, to direct'y or in-
directly influence the votes of ethers.
“We think we can justly and fairly appeal *to
that decision of our supreme judicial tribunal. as
sustaining the view we have taken of this case.
“There may have been a time in the history of
our country -when the nature of the government was
less understood and less clearly defined, when this
might have been an open and debatable question;
but we cannot now so regard it.
“In the early days of the republic, ambitious
and despotic rulers, seeking to perpetuate their
power or to aggrandize their stations, and finding
—22—
= ° . d a
no express prohibition in. the: organic law, eae
laws placing restraints upon the political privileges
of the people; and in 1798 passed the sedition act,
which trammeled*freedom of speech, and imposed
penalties upon the free discussion of political ques-
_ tions. This brought on a conflict between the peo-
ple and their rulers, which ‘culminated in a change
of rulers, and in the constitutional provisions, both
federal and state, which we have recited - above,
which guarasteed to the citizens of the United
States and of the state of Virginia freedom of
speech, and the right to peacefylly assemble, to”
freely Speak and freely write their sentiments on
all subjects. . an
“Virginia, ninety-six years ago, standing upon
the threshold of the new Union, pausing before she
joined hands with her sister states, and pledged
her faith to form: a more perfect union, declared
‘that among otHer essential rights the liberty of
conscience and of the press*cannot be cancelled;
abridged, restrained or modified by any, eutnorny
of the United States’
“And immediately upon the -formation of the
~ Uncon by. the»ratification of the constitution, we _
' find congress proposing, and the states ratifying
among others, the’ first amendment to the federal
constitution embodying this declaration, which was
.thus set in its place in the national household,
where in the future, as in the past, through all
coming time, let us hope it may remain sacred in-
the eyes of the nation.
“Virginia, as we have seen, ‘has douity written
- this-principle upon her own constitutional tables of
,
RE eee ma | be
Weiicidiinticinicn, tins LAR os Niel
° 23 : -
stone, and it cannot be violated by any department
of her government. But.it is contended that this
act does not affect the citi ns of Virginia, it only. °
affects certait? of i and the legislature has
the right to. regulate the conduct of these. These
officeholders could not be such if they were not
citizens. The citizens of Virginia fill her offices.
And as we have no privileged classes in this state,
o we have no class of citizens outside of the pro-
tection of the constitution: That the legislature
may correct abuses in -official conduct ; that offi-
cial malfeasance is liable to punishment none will
deny; but there is no pretense of such in this case.
The act is not entitled-an act: to correct official
misconduct or the abuse of official station, but is
entitled ‘An act to prohibit the active participa-
tion in politics of certain officers of the state. gov-
ernment.’
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“Y “If the legislature has the power to forbid the
; exercise of one political privilege, why may it not
forbid the exercise of another? If it may forbid
one of the officers of the. government to speak or
3 * write according to his sentiments 6n'‘public affairs,
why make it not forbid the officer from voting
according to his sentiments, and why mafxit not
impose other restrictions and other disqualifica-
tions, until the officer is driven from his office
- because of the exercise of his constitutional privi-
leges? The officer in question: is a constitutional .
officer, and while he may be removed from office
; for malfeasance, or gross neglect of official duty,
3 or for sufficient cause, he cannot be removed for
exercising any right guaranteed to him by the con- vf
e
De RY a
Wilber cin: tsb ty oP9 RY
| on
stitution. without violating that instrument. _ The
constitution provides the method of his removal,
and the legislature cannot remove him in a differ- - @
ent method, by. creating a new. offerice and sub- © *—
mitting the question of his removal to any other
tribunal! than that provided by the constitution,
the senate of the stgte. Far less than the legisla-
ture, in the exercise of its general powers, declare.
that to be a crime, which the constitution has de-
clared to be an inalienable right. ve
Se tg x .
pate le ee
“It is contended that the legislature has this *’
right, as we have said, because this citizen is an ,
officer of the government ; that the constitu-
tional provision applies*to the citizens other than
officers of the government. We do not so read
the constitutiof. These rights are guaranteed to
jill deg Is Spt Ri ARES on NBR 8 ois Ses
all the citizens of the state, not to any portion or ;
class of citizens. And because a deserving man - ;
has been honored with the confidence of his fel- —-
low-men and elevated to a position of honor and’ ~~
trust, is no just cause for his political degrada- :
i : ae Se 2 ep
tion, but the contrary. , »@
Louthan v. The Commonwealth, 79 Va. Rep. —
196, 200-206. ; 2
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The Order of Discharge atin ¢ so Broad, Vague
and Uncertain Deprives aerial of Due
Process of Law.
Ordinance 580 of the County of San Bernardino, in
accordance with the accepted rules of administrative |
law, provides for notice and a hearing before petitioner
could be permanently separated from the Civil Service
‘ position-ijn which he had the vested property right. The —
order of discltarge constituted that notice. It consti-
tuted the information directed to the petitioner inform-
ing him of the basis upon which the County contem-
plated ‘terminating his employmient. However, it did
“not specify°what act of acts on his, part furnished the
foundation for the discharge . other than fe age
. “Rialto City incident.””. Since this inciden s decided
in favor of the petitioner, it may be excluded from ‘the,
—court’s consideration.
This leaves only the broad statement in the order of
discharge that petitioner was being terminated from his
employment because of the opinions expressed by him in
gn editorial contained in the union newspaper.
An examination of the editorial | contained in the un-
* ion newspaper discloses that petitioner expressed him-
self on a substantial variety of subjects. He expressed
resentment over the. high cost of living. He indicated
bitterness at the second-class status of -Civil Service
employees. He emphasized that. the need for income
was no less to a Civil Service employee ‘than it was ta
a person employed in private industry.
He. expressed. some opinions on trade unionism, and
he also. briefly discussed the right to engage in con-
certed union activities.
«3
‘Respondents “arefully--avoided: indicating what por:
tion of the editorial was in question. Upon the con-
clusion of the hearing the Civil Service Commission in
its. Findings and Order apparently followed the lead of
petitioner’s employer, and in similar loose terms upheld
his discharge because of the opinions expressed in the
union newspaper. It is well to note that this discharge
was sustained because of the expression of plural opin-
ions in this editorial. Thus, it. is apparent that the
Civil Service Commission, at least, concluded that pe-
titioner could be discharged for protesting against the
high cost of living, for insisting that Civil Service. ém-
ployees met the same bills, ate the same food and “had
the same expenses as other employees; and, generally,
found that each and every opinion expressed by peti-—
tioner in his editorial constituted grounds for discharge.
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It is clear that both the notice which was. given to
petitiouer and ‘the Findings of the Civil Service Com-
mission did ‘not aim specifically at evils within the al-
lowable area of state control but on the contrary swept
within its ambit other activities that in ordinary cir-
cumstances constitute an exercise of freedom of speech
and freedom of the press. |
It is not the Aunction of the court to determine —
whether any single portion of the ediotrial might have
offered grounds for discharge. Language prohibiting
- conduct that may be prohibited and conduct that may
not affords no reasonable ascertainable standard of
guilt, and is therefore too uncertain and vague. Strom- ;
berg v: California, 283 U. S. 369, 370; .Lanzetta v. aN
New Jersey, 306 U. S. 451; Thornhill v. Alabama, 310
_ U. S. 88, 96; Near v. Minnesota, 283 U. S. 697.
e , ‘
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lied
“Due process” envisages a plain statement to a de-
fendant of the charges against which he must defend.
The dictates of fair dealing between the state and its
citizens require that when the facts are known and are
the basis‘of a charge, there should be a. complete and
plain statement ot those facts made before a citizen is
brought to trial. The, District Court of Appeal of
the State of California in considering an accusation
filed against a doctor stated:
“We are not unmindful of the rule allowing great
liberality in pleadings before ‘the dental and medi-
cal Ft ards, but giving this rule full scope, still an
- "accusation in such a proceeding must state facts
4 showing a violation of the particular: act under
! which the charge is made.” |
4 The court then went on to say:
“The complaint or accusatién must be sufficient
in its statement of fact to show actual unprofes- .
sional conduct by the person charged or it will not
give the board power or jurisdiction to revoke re-
- .. spondent’s license.” it
— Bley v. Board of Dental Examiners, 120 Cal.’
App. 426;
: | Dyment v. Board of Medical Examiners, 57
4 Cal. App. 266.
The broad, vague charge made against petitioner
herein was so indefinite in form so as to faikto give
fair notice of the-acts for which he was charged and
deprived him of procedural due process. Winters ~.
New York, 333 U. S: 507, 509-510, 515. See also-
Cline v. Frink Dairy, 274 U. S. 445: Cole v. Arkansas,
338 U. S. 345, 354: | 4 |
III.
The Expression by a Public Employee of His
Opinion Advocating the Right to Strike for
Public Employees Is Protected by the Four-
teenth Amendment.
As petitioner has heretofore ‘indicated, the order ‘of
discharge and the findings of fact and order of the Civil
Service Commission interdict petitioner because of his
expressions of opinion contained in the editorial. It
is impossible to determine which, particular part of the
editorial gave rise to official disfavor. —
The Department of Labor has recently designated
San. Bernardino County as a distressed area, much to
the annoyance of the Board of Supervisors, so it is en-
—tirely possible that petitioner was discharged because of
his comments about the high cost of living. If this
_ were true, petitioner feels there is no question but that
he is entitled to his immediate reinstatement. For a
citizen to be punished because he complains of the high
cost of living would require a oene abrogation of
the Constitution.
Giving the Board its due, petitioner assumes that the
basis tor his discharge was that portion of the union.
newsletter contained in the last paragraph of -his edi-
torial which reads as follows:
“Is there an immediate, or even long range rem-
edy, to this situation ? Perhaps, but the medicine
is bitter. It calls for vatied applications of law-
suit, slowdown, sitdown, walkout—or that final
bitter dose, the strike. Whatever antidote is pre:
scribed it can only we attained through ‘the media
of strong unionism.’
.
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—29.
It is significant that the County of San Bernar-
dino as employer and the Civil Service Comntfission as
judicial tribunal beth ordered the discharge of. petitioner
because of his expression of opinion, and both clearly
avoided gnaking any finding that the expression of opin-
ion was any more than the abstract recommendation of -
strong trade unionism for municipal employees. There
is no. finding (and no evidence which. would warrant
any finding) that this statement induced anyone to do
anything. | ;
“It is no longer open to doubt that the liberty
of the press and of speech is within the liberty
safeguarded by the due process clause of the Four-
teenth Amendment from invasion by state action..
It was found impossible to conclude that this es-
sential personal liberty of the citizer was left un-
protected by the general guaranty of fundamental
rights of person and property.”
Near v. Minnesota, 283 U. S. 697.
There is no question but that the “clear and present
danger” doctrine is here applicable. A ‘function of free
speech under our system of government is to invite dis-
pute. It may indeed best ‘serve its highest purpose
when it induces a condition of unrest. creates dissatis-
faction with conditions as they are, or even stirs people
to anger. Speech is often provocative -and challenging.
It may strike at prejudice and preconception ‘and have
proven unsettling effects as it, presses for acceptance
of an idea. That: is why freedom of speech, though
not absolute, is nevertheless protected against censor-
ship or punishment unless shown likely to produce ‘a
clear and present’ danger of a serious substantive evil
—30—
that rises far above public in convenience, annoyance
or unrest. .
Terminiello v. Chicago,.337 U. S. 1, 4;
Schenck -v. United States, 249 U. S. 47, 52;
Abrams v. United States, 250 U. S. 616, 630.
Moreover, the likelihood, however great, that a sub-
stantive evil will result cannot alone justify a restric-
tion upon freedom of speech or press. The evil itself
must be “substantial. 2 :
Whitney v. California, 274 ng S. 357, 374;
Schneider v. State, 308 U. S. 147, 161;
Cantwell.-v. Connecticut, 310 U. S. 96;
Thornhill y. Alabama, 310 U. S. 88, 104-105;
Jones v2 Opelika, 319 U. S. 103.
“What finally emerges from the ‘clear and pres-
ent danger’ cases is a working principle that the
substantive evil must be extremely serious and the
degree of eminence extremely. high before utter-
ances can be punished.”
Bridges v. California, 314 U. _ 252, 261.
lest ‘it be forgotten, the. — aay eae is not
limited to opinions which are orthodox or even ‘correct.
One of the prerogatives of American citizenship is the
right to criticize public men and measures, which means
not only informed and responsible criticism, but the
freedom to speak foolishly and without moderation.
Baumgartner v. United States, 322 U. S. 665.
As your honorable court has heretofore said in num-
erous cases, there exists a very definite line ‘between
advocacy of’ an abstract doctrine and advocacy of ac-
2
Pedsrrein:
—3i— 5 Cate
tion. The distinction between advocacy of abstract doc-
_ tfine and advocacy promoting the unlawful action is one
that has been consistently recognized beginning with
Fox v. Washington, 236 U.S. 73 and Schenck v.
United States, ‘supra. This distinction was under-
scored in Gitlow v. New York, 268 U. S. 652, where-.
in your honorable court said:
“The statute does not penalize’ the utterance or 3
publication of ‘abstract doctrine’ or academic dis-.
cussion having no’ "quality of incitement to any
concrete action. . . . It is not the abstract doc-
trine of overthrowing organized government” by
unlawful means which is denounced by the stat-
ute, but the advocacy of action for the accomplish-
ment of that purpose.”
In your latest’ decision upon the subject, your hon-
orable court stated: : 2
“In failing to distinguish between advocacy of
forceable overthrow as an abstract doctrine and
advocacy of action to that end, the District Court
appears to have been led astray by the holding in
Dennis that advocacy of violent action to be
taken at some future time was enough. It seems
to have considered that, since ‘Inciting’ speech is —
usually thought of.as something calculated to in-
duce immediate action, and since Dennis held adyo-
cacy of action for future overthrow sufficient, this
meant that advocacy, irrespective of its tendency to
generate action is punishable, providing only that |
it is uttered with a specitic intent. to accomplish
overthrow. In other words, the District Court ap- ;
parently thought that Dennis obliterated the tradi-
tional dividing line between advocacy of abstract
doctrine and advocacy of action. * * *
“
e
—32—
“The essence of the Dennis holding was that in-
doctrination of a group in preparation for future
violent action as well as exhortation to immediate
action, by advocacy found to be directed to ‘ac- —
tion for the accomplishment’ of forcible over-
throw, to violence ‘as a rule or principle of action,’
and employing ‘language of incitement,’ is not con-
stitutionally protected when the group is of. suffi-
cient size and cohesiveness, is sufficiently oriented -
towards action, and other circumstances are sucht
as reasonably to justify'apprehension that action
“\.will occur. This is quite a different thing from
the view of the District Court here that mere doc-
trinal justification of forcible overthrow, if en-
gaged\in_with the intent to accomplish overthrow,
is punishable per se under the Smith Act. That
sort of advocacy, even though uttered with the hope
that it may ultimately lead to violent revolutian, is °
too remote from concrete action to be regarded as
the kind of indoctririation condemned in Dennis.
As one of the concurring’ opinions in Dennis put
it: ‘Throughout our decisions there has recurred a
distinction between the statement of an idea which
may prompt its hearers to take unlawful action,
and advocacy that such action be taken.’ There-is
nothing in Dennis which makes that historic dis-
tinction obsolete.” el
Yates v. United States, 354 U. S. 298, 320, 321.
Is there anything in the statement of opinion by pe-
titioner which is of such a moving nature that the words
in and of themselves can be expected to cause an il-
legal action in the imminent future? ‘The most that can
be abstracted from petitioner's expression of opinion is
; | a
strike.
Such a contention is not in and of itself so heinous
“as to warrant the immediate discharge of petitioner. It
is significant that the Supreme Court of the State of
| California at about the same time that it was preparing
to deny petitioner’s request for hearing was holding
that the right to strike existed in public employees as
well as in other employees if statutory authority was
given. (/.os <ingeles Metropolitan Transit Authority
| wv. Brotherhood of Railroad Trainmen, 54 Cal. 2d 684.)
|
|
. a contention that public employees have thMright to
In fact, your honorable court has heretofore held that
| public employees of the State of California under cer-
tain circumstances had the right to strike against the
state or a state agency. For, as your honorable court
pointed out in a case involving the California Belt
_ Railroad, a direct instrumentality of the State of Cali-
* fornia: | ' .
.
.
4. tad
“Under the Railway Labor Act, not only did the
employees of the Belt Railroad havea federally pro-
; tected right to bargain collectively with their em-
| ployer but the terms of the collective bargaining
agreement that they have negotiated with the Belt
Railroad would take precedence .over conflicting
provisions of State Civil Service Laws.”
: California v. Taylor, 353 U.-S. 553.
} See also:
7 Railway Employees Department v. Hanson, 351
: Ww, 3S, aan
3 With the right to bargain collectively under the Rail-
» Way Labor Act goes the right to strike. Therefore, it
* ts clear that a consideration of the right to strike by
}
KA scieree
veiiies
public employees does not ipso facto constitute those
“fighting words” which would call for an immediate
strike against the County of San Bernardino sufficient
to warrant setting aside the First and Fourteenth
Amendments to the Constitution. | ,
Conclusion.
Dr. Chafee’s words can be applied with brilliant clar-
ity to the facts presented to your: honorable court.
Liberally paraphrasing the excerpts cited above, the etf-
fect of the suppression of the opinions of your pe-
titioner extends far beyond the discharge of your pe-
titioner. Concede for,the moment. that the public would
suffer no serious loss if Mr. Pranger’s opinions were
suppressed. -Consider, however,’ the impact upon his
fellow employees who have his, discharge as an object
lesson. As Dr. Chafee says, “When you put the hot-
heads in jail, these cooler people do not get arrested—
they just keep quiet. And so we lose things they
could tell us which would be very advantageous for the
future course of the nation.” The very purpose o/
Civil Service is to protect the government employee
from the whims of his political superiors, to give him
a freedom and independence to do his job for the best
‘ interests of the people he serves rather than as a lackey.
of every politician. Here the effect is just to the con-
trasy. What employee of the County of San Ber-
nardino will now dare speak out against his overlords.
i the Board of Supervisors can discharge petitioner
because it does not like his expressions of opinion, is
there any reason why they cannot do the same thing
to an employee who wishes to complain of graft in the
county government, who wishes to complain of incompe-
tence in the county governnient, or who just wishes to
discuss change? Like a rock dropped into a pool, the
ripples of this discharge have widespread effect. Mr.
Pranger’s fellow employees have learned their lesson,
and will henceforth remain silent. The employees of
the County of San Bernardino see the handwriting on
the wall, and they .too Will remain silent. Employees
of every public agency in the State of California hav-
ing read the decison of the court below now realize
that they are in truth and in fact second class citizens,
and they too will remain-silent. In one fell swoop one
arbitrary capricious group of five persons has effective-
ly stripped from over 50,000. people the right to dissent.
We are informed that statistically one out of every
seven persons employed in the United States is an em-
‘ployee of a governmental agency. Unless this honor-
able court intervenes, one-severith of the working public
has been plaeed outside the protection of the Fourteenth
Amendment and, in a way, outside-the protection of the
Thirteenth, too. |
Respectfully submitted,
»
: - Lewis Garrett and
Lionet RIcHMAN, °
By Lionet RicHMAN,
Attorneys for Petitioner.
Pd
APPENDIX A. .
- Opinion of the District Court of Appeal.
In the District Court of Appeal, Fourth Appellate
District State .of California. |
Edward Pranger,:- Appellant, vs. S. Wesley sional et
al., Respondents.. 4 Civil Ne. 6307. ie
Filed, Nov. 21, 1900.
Appeal from a iuilement of the Superior Court of
San*Bernardino County denying a writ of mandate.
_Carl B. Hilliard, Judge. Affirmed.
Lewis’ Garrett and Lionel Richman for- Appellant.
Stanford D. ‘Herlick, County Counsel of San Ber-
nardino County; and Margaret J. Morris, Deputy °
County Counsel, for Respondents.
Petitioner and appellant Edward Pranger, .a_ civil
.Service employee, sought a writ.oi mandate in the Su-
perior Court against respondents S. Wesley Break and __
members of the Board of Supervisors acting as ex of-
ficio members of the Air Pollution Control Board of -
San Bernardino County (hereinafter referred to as
-APCB) and members of the Civil Service Commission,
seeking a judicial review of the administrative adjudica-
tion by the Civil Service Commission under Govern-
ment Code section 11523, which Commission’ sustained
the dismissal of jppellant upon’ grounds of “‘conduct
unbecoming an employee” upon certain. specified
» grounds. ©The trial court upheld the action of the Civil
Service Commission and. denied the writ.. The appeal
is from this judgment.
ne
There is no-material dispute as to the facts. The
case was tried in the superior court predicated on the
~
joint pretrial conference statement and order and ex-
’ hibits listed therein. Accordingly the parties agreed,
and the pretrial order indicates, that the petitioner, an :
ethployee of the APCB in the capacity of Clerk IV,
was dischargéd from such position as of August 29,
1958. The dismissal was accomplished by. means of a
letter dated August ‘20, 1958, addressed to petitioner
over the signature of the Air Pollution Control Officer,
and it is conceded that the power of appointment and
discharge was exclusively within the jurisdiction of such.
officer. This communication stated that the dismissal*
of petitioner was “upon direction” and order of the
board of the Air Pollution Control District and such
action was taken “pursuant to section 11 of Civil Serv-
ice Ordinance 805.” The letter further states that the
dismissal was “based upon conduct unbecoming. an em-
ployee as exemplified by your actions at a Rialto City
Council meeting and your editorial comments . . .” , Pe-
titioner is specifically charged by the terms. of this writ-
ten notice of editorially espousing a philosophy ‘ ‘inimical
to public service” and with the use of ‘ ‘abusive language
with respect to” a newspaper publisher and reporter at
a meeting of the Rialto City Council. —
Under date of August 19, 1958 (the day cenit
‘the date of the letter of dismissal), the chairman of
the Board of Supervisors of San Bernardino County,
acting on behalf of the board, had addressed a letter to
petitioner which purported to dismiss him from his posi-
tion. The.reasons assigned in this letter were substan-
tially the same as those set forth in the letter of August
20. It is. conceded that this letter was ineffectual, since
the board of supervisors; acting either in that capacity
or as cx officio APCB, lacked any jurisdiction or power
—
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to appoint or discharge subordinate émployees of the
Air Pollution Control District. Apparently appellant.
~ appealed to the Civil Service Commission from the order —
of dismissal. A lengthy hearing was had and it filed
written findings on December 30, 1958 and determined
(a) that the dismissal of petitioner was legally effected,
and (b) that the conduct of ‘petitioner “as exemplified
by his editorial comments . . . demonstrated a lack of
the essential loyalty, mature judgment, and the proper
spirit of cooperation so vital to good government: in
this County,” and constituted. “cause for dismissal pur-
suant to the rules of the Civil Service Commission of
the County of San Bernardino.” It should be noted
that Commission made no specific findings with-
respect to charges contained in the letter of dismissal
concerning petitioner’s alleged conduct in appearing be-
fore the Rialto City Council, but elected to base its
order on the conduct exemplified by editorial comments
as authorized by petitioner and published i in the County
Union Employees’ News Letter.
Appellant, as associate editor ‘of that paper, which
is published monthly and circulated among the County
employees, wrote an editorial, in the absence of and
without the consent of the chief editor, the member-
ship or executive committee, referring to the claimed
failure. of the board of supervisors to increase wages
of County employees to meet the claimed cost of living
‘rise. He wrote in part:
“When the monthly accounting time inevitably rolls
around, we. know that we are orphans in a spfralling
economic tornado, Are we in the San Bernardino Coun-
ty employ some sort of weird exception to recognized
standards of decent living i our locale? . . . We are
eiiliass
fish swimming in the same economic sea as dwells the
entire Southern California populace. With one excep-
tion. The majority of us have been relegated, through
the Board’s indifference, to play the role of bottom fish.
“For the first budgetary. time in recent’ years, our
Board of Supervisors has lent a deaf ear to the eco-
nomic facts of, life when it comes to the needs of the -
employees who administer the government they sup-
posedly supervise. Our Union has appealed to them
with supplication, mild agitation, and arbitration in an
effort to nudge them. from their, ‘ostrichized’ head-in-
the- sand attitude | of ‘hold the line’—to no avail. -
“Is there an 5 ieomealnte, or even long range remedy
to this situation? Perhaps, but the medicine is bitter.
It calls for vari pplications of lawspit, slowdown,
sitdown, walkout: that final, bitter dose—the strike.
Whatever antidote is prescribed, it can only be attained
through the media of strong Unionism.”
After the article appeared, the president of Local 122
accepted appellant’s resignation as associate editor. The
executive board, by resolution, disclaimed and disap-
proved the remarks concerning ‘slowdown, sitdown,
walkout or strike . . : which remarks were not author-
ized by the local and do not express its policies.”
As to the Rialto City Council meeting, the transcript
ot evidence before the Civil Service Commission which °
involved the municipal policy in relation to the continu-
ation in office of the city manager, appellant, a property |
owner, attended. There was a large audience present
and many people. including appellant, actively and vo-
cilerously participated in the discussions. Public re-
marks attributable to appellant were there made, .such
¢
hie S Sat A SYREN tte VERE Ri“ aaths O nNe R
| 5
as “Let's throw him out’of office” and “Get back on
your horse and buggy and get on your route.’ In-
referring to the publishing plant of a local newspaper,
‘he was said to have publicly remarked that it, or the
‘reporter, was a .“journalistic prostitute” or “literary
prostitute”. The local paper, the following day, car-.
ried the headlines and story that appellant Pranger,
“County Assistant Air Pollution Control Director” or
“assistant Air Pollution officer in the county”. who
apparently was known to many of the audience as such,
publicly accused the reporter of the local new spaper, of.
—— the néwspaper profession.”
’ As to the publicity in reference to the claimed dale.
ened strike and sitdown, appellant argues that his re-
marks were merely expressions of opinion in his capacity
as Associate Editor of the News Letter ; th * the Con-
stitutional right of tree speech protects his privilege in ;
publicly expressing such opinions, subject only to the
restrictions imposed upon public employees to refrain
from statements: which would induce or incite other em-
ployees to engage in illegal or improper activities to the
detriment of the public agency; that the effect of his
editorial statements must be measured by the ‘clear and
present danger” rule; and that the record is wholly
devoid of evidence to sustain findings of conduct un-
hecoming a public employee. (Citing such authority
as Near v. Minnesota, 283 U.S. 697; Bridges v. Cati-
fornia, 314 U.S. 252, 261; Baumgartner v. United
- States, 322 U.S. 605; Cal. Const. art. 1 sec. 9; Board
ot Education y. Swan, 41 Cal, 2d 546.) / ~~
The. issue is not the right of freedom of speech,
whether petitioner had the right to make such editorial
statements, -or whether such statements were of the
. De ©
nature which presented a clear and present danger, but
the real issue is whether the publication of the state-
ment, under the circumstances and in view of peti-
tioner’s position as a public employee in a sensitive gov-
ernmental office, was, ipso facto, conduct unbecoming
a public employee. This question is fairly well treated
in Hayman v. City of Los Angeles, 17 Cal. App. 2d
674, 679 (hearing denied ad the Supreme Court) where
it is said:
“The right which is sveboed here is not that which
petitioner thinks has been denied him, but is the right
of respondents to exercise a reasonable supervision over
city employees, to the end that proper discipline - may.
be ‘maintained and that activities among employees be
not allowed to disrupt or impair the public service. Such
is not only the right but the duty of the city and its
several departments. Inthe exercise Of this duty, they
- must be allowed a wide discretion and their acts are
not subject to review by the courts until they have
reached ‘the point of illegality . . . If petitioner’s ac-
' tivities hada tendency to create denensiets ‘and unrest
among the city employees and to interfere with the
enforcement of reasonable rules of conduct prescribed ~
by the Board of Public Works, it is not for the courts
to declare that a dismissal based upon these facts would’
be without cat&e and therefore without authority under
the charter of the city.”
This portion of the Hayman decision has been cited
with approval in a number of cases in this state since
the rule itself was announced. See Board of Education
. Swan, supra, 41 Cal. 2d 546, which appears to an-
swer petitioner's claim that the dismissal was based upon
7
Had abe SR Calan ae ee AB os aan AR OC ANE ACA ei ills tai ACU tice i ling
es Cie age
=
an invasion of his right of free speech. It is there
stated, at page 356:
_“Nor can defendant prevail in her claim that affirm-
ance of her dismissal infringes upon the constitutional
guarantee of her freedom of speech, in that she thereby
is denied the right to criticize her superiors upon pain
_ of losing her position. ‘(Citations.) One employed in
public service does not have a constitutional right to
such employment and is subject to reasonable super-
vision and restriction by the authorized governmental
body or, officer. to the end that proper discipline may
_ be maintained, and that activities among the employees
may not be allowed to disrupt or impair the public
service. (Citations.) Because of this dominant public
-interest, the exercise of such control over the public
employee i$ not only a right but is a duty, and in the
discharge thereof a wide discretion is allowed, which
will not be disturbed until ithe — of — i.
reached.”
' See also the dissenting opinion in La Prade v. Depart-
ment of Water & Power, 27-Cal. 2d .47; 54.
In the absence of legislative authority, public em-
, Ployees in general have no right to strike against the
government. (City of L. A. v. Los Angeles Etc. Coun-
cil, 94 wou 2d 36; Newmarker v. Regents of the
» Univ. of Cal., 160 Cal.’ App. 2d 640; Los Angeles
3 Matsopitici Transit Authority ‘v. Brotherhood of Rai l-
‘ road Trainmen, 54 A. C. 689, 692).
3 While appellant subsequently denied that he intended
-_ . to call for a strike, or sit down, it is clear from the
i _ record that the Union News Letter editorial could rea-
: sonably be interpreted; and was so interpreted by ‘some,
~ . as an approval of the strike or other unlawful pres-
‘
a.
-
sures to remedy the situation described in the editorial.
The ‘publication of such sentiments could reasonably be .
found to engender distrust in the public mind as to the
loyalty and integrity of public officers and employees
generally. There is no vested property right in public
employment beyond the right to have statutory proce-
dure for dismissal followed. (Redding v. City of Los
Angeles, 81 Cal. App. 2d 888; Boyd v. Pendegast, 57
Cal. App, 504). The reasons for appellant’s dismissal
were set forth with sufficient certainty. It is not nec-
essary that every act specified in the charges be proved.
The action should.be upheld if there is sufficient evi-
dence from the whole record to support the findings.
(Turner v. Civil Service Commission,. 119 Cal. App. :
2d 640). \
The “clear and present danger” doctrine has no\ ap-
plication to activities of public employees where ‘the
sanctions imposed are suspension or dismissal from the
public service. (Hayman v. City of Los Angeles, supra,
- 17 Cal. App. 2d 674). The cases cited by appellant
were not applying the “clear and present danger” doc-
trine to set aside a dismissal of a public employee.
_ There is no suggestion in them that the ‘public agency
-amust withhold action unless there is immediate ‘danger
of other employees joining in an overt act against the
governmental entity involved. In the absence of some
provisions giying tenure, an officer or employee may ~
be removed at will. (Hackler v. Ward, 105 Cal: App.
2d 615.) It is only by virtue of the Civil Service
Ordinance and rules adopted pursuant thereto that ap-
pellant had any right of tenure. Rule 8, section 2(f) -
thereof provides as a cause for removal “that the em-
ployee has been guilty of any. conduct tinbecoming an
sadn
officer or employee of the County.”- Therefore, the
limit of the right to such employment is the cause
stated in the rule adopted pursuant to the ordinance
giving the right, and not the limit of constitutional
rights guaranteed to individuals generally. While ap-
pellant had‘the same constitutional right:to freedom of
speech and press without restraint by governmental au-
thority as persons generally, as a public employee he
could be held accountable if such action constituted con-
duct unbecoming a. public employee. The commission’s
finding that appellant's conduct was unbecoming a
County employee is supported by substantial evidence.
No abuse of discretion by the administrative agency
appears.
As to the alleged statements made at the public hear-
ing before the Rialto City Council, the City Service
Conmission did not make a direct finding on the
charge. In view of the conclusions reached on the other
charge, such finding is not necessary to support the
Commission’s decision on the general charge of conduct
unbecoming-a public employee. (Turner v. Civil Serv-
ice Commission, suprd, 119 Cal. App. 2d 640; Thomp-
son v. City of Long Beach, 41 Cal. 2d 235; Code Civ.
Proc, sec. 1094.5.) There can be no denial of the right
of petitioner to participate in the public discussion’ dur-_
ing the council meeting: Neither the temperate or in-
temperate nature 6f his remarks, the wisdom or folly
of the cause he advocated, nor the validity of his per-
sonal criticism or approval of the individual council
members, are at issue in these proceedings. There is
substantial evidence that the acts and conduct of peti-
tioner were prominently publicized by the local tews-
paper which referred to. him as “County: Assistant Air
—10—-
Pollution Control Director” or “assistant Air. Pollution
officer-in the county.” The inference which the Com-
mission undoubtedly deduced was that the news value
of the event must have been measured in part by the
‘fact that petitioner was a public official. It is clear
that, such publicity described the public agency involved.
This circumstance alone emphasizes the need for con-
stant vigilance on the part of any public employee to
avoid, in his private concerns, and in the conduct of
his own business °.s a citizen, that type of conduct
which may be the cause of direct criticism of the pub-
lic agency by whom he is employed. |
The remaining point is that appellant was not dis-
charged by the person legally authorized to discharge
him. Health and Safety Code section 24228 provides
that the Air Pollution Control Board shall appoint the
Air Pollution Control officer. The Air Pollution Con-
trol officer in turn shall appoint all of his assistants.
In the first instance, the board of control attempted to
dismiss appellant. Jurisdiction of the board to do so
was submitted. to the Superior Court of San Bernardino
County in an independent action to determine this ques-
_tion and that court held that the authority to dismiss
was solely vested in the Air Pollution Control officer.
_Appasently there was some difference of opinion be-
tween the board and the control officer as to whether
appellant. should be dismissed. However, thereafter a
letter was signed by the control officer stating that
upon direction of the board he was ordered to notify
appellant of his dismissal and he did thereby notify him
of his dismissal; that this action was taken pursuant
to section 11 of Civil Service Ordinance 805 and was.
based upon conduct unbecoming an employee as above
c
_
indicated. It was signed “George R. Bean, Air Pol-
lution Control Officer.” Shortly thereafter, Bean re-
signed his position. The argument appears to be that
- this notice was ineffective because his dismissal was
in fact made by the board and was not the free and
voluntary act of Bean, the control officer. His action
in writing and. signing the letter of dismissal may have
been the result of pressures brought to bear upon him,
but his concurrent resignation as Air Pollution Con-
trol officer (apparently prompted by his disagreement
with the board as to the advisability of discharging
petitioner supports the inference that he exercised his
own personal judgment in the choice between compli-
ance and noncompliance .with the orders and directions
of the board. In any event the letter of dismissal is
unequivocal in stating that “I... do hereby notify you
of your dismissal .. .” The Civil Service Commission
considered this factual question and found that the dis-
missal was legally effected; that the act of dismissal
was accomplished by the person having sole jurisdiction
and authority to discharge petitioner as a civil service
employee; and that his election to comply with direc-
tions or orders of the board does not alter or diminish
the legal effect of his actions. The trial court also
. made similar findings. It has been held that the action
of the removing officer is no less his act because per-
formed at the direction of the governing body. (Brown
v. Board of Police Commissioners, 2 Cai. App. 2d 245;
Christie v. Lueth, 265 Wis. 326; 61 N. W. 2d 338.).
It is the general rule in reference to the review of ad-
ministrative proceedings under Code of Civil Procedure
section 1094.5, that every presumption in favor of the
administrative findings which may’. ordinarily be ac-
=— ;
corded to such determinations of the trier of fact should
be indulged to support the administrative findings on
these factual matters. Up to the point where the court
cannot, in good conscience, say that the administrative
evidence supporting those findings and inference of
fact is substantial, in that there is no.reasonable rela-
tion between the facts and the findings, the-court should
not substitute its judgment for that of the agency, even
though, had the court heard the case de novo it would
not have reached the same findings of fact itself. (See
Netterville, Administrative “Questions of Law” and the _
scope of Judicial Review (1956) 29 So. Cal. L. R. 434, .
465; Thompsen v. City of Long Beach, 41 Cal. 2d
235.) Our conclusion is that the finding of the Com-
mission and the trial court had sfficient evidentiary
support. No abuse of discretion appears.
Judgment affirmed.
Griffin, P. J.
We concur:
Shepard, J.
McMurray, J. Pro tem.
: ; > t Dd i a Lia,
ae ee ee eee eee ee ee ee
_
; APPENDIX B.
District Court of Appeal of the State of California,
in and for the Fourth Appellate District. .
‘Edward Pranger, Plaintiff and Appellant, vs. S.
Wesley Break, -et al.. Defendants and Respondents. 4
Civil No. 6307. |
By the Court:
Defendant and appellant in the above entitled cause
having filed through his attorney a record herein a
notice of petition to the Supreme Court of the United
States for a Writ of Certidrari and request that the
original record in said cause be certified and trans-:
mitted to the’ Supreme Court of the United States,
and it appearing that this is a proper case in which to
apply the provisions of Rule 12(4) of the Revised —
Rules of the Supreme Court of the United States, it is
hereby ordered that the entire original record on ap-
peal be forwarded to the Clerk of the Supreme Court
of ‘the United States for inspection by said Court.
It is further directed that after the original record
has served its purpose in the Supreme Court of the
United States. the Clerk of said Court return the orig-
inal record to the Clerk of the District. Court of Ap-
peal, Fourth Appellate District, State of California, at
106 Sixth Street, San’ Bertiardino, California.
Dated February 1961.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.