# Petition for Writ of Certiorari — Pranger v. Break (No. 913) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_1013%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1960 ## Text a oA ie | Lc Gator ye - P | e AD o} S, LYu. ‘ 4 Mi ; . IN THE “> are WANING Clerk United. Supreme Court of the Uni e ' phyere? . “2. ] } ) t } 's eo | e N\:, @..ab- ° ‘ 2 \ . ce i \ls ', ~ | \ ' Nt - } ™ \ | \ | ) \ ix | - TCT ty -_ . - ; \ ' ee , 1 4A + Lt te. | 1 T} . ( i rel 4“\ ; ' why ( é$ |) . wt ie STPWAKI “ft biti oe yee 6 ; bi ih Dow Nts Th ae ( ars this ( ‘\ \ t { Y}1} ~* ( ~: a ( , ee rial p ATRL TP vat yet ? ; % * « é / ‘f hada Petition for-Writ of Certiorari to the District Court ot Appeal of the State of Calkiornia, Fourth Appellate District. . e “ ] ‘ > : ww © ~ * . ss la Weis ae ARRETY : Lioxkt Ri MAN ° : [29 Kt . a | . Silt Al er ehh RENCE ASAI a DSTA vt ath Md he sheet DOD AMAL dete AE oe us tte - PNR csi i 5 ales or Atal hlbh ar eb om tk ok ale 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. 0 AL Rd ae ND ia iter ity Nak Net > Bienes ests is! Waa ie eee Na leas TELS ee ee ig RES NR ce LLIN LERS HB MER Dor B + — naaeuenes ~ . e* — 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 » ES Sten tie pity 3 & ere. oe 4 Ce inthe eden sick aie ht aimed POM heii MGs igs BS . ee ee SE ee eee a “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 ON ES he Ne, Mbt its! #55 cl RR Bit swat + 5 . ii cinta swicins OAR eS NEE OY ee iat, SPD. alin Ri rete: 6 e . Jin ei lah Seth eI 2s | - 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 £ ie 4 3 : iti racruss Widnes pein ie 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.’ 4 ¥ x 4 oo] * a eke: Aa Pat ace hep werr a “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 : ' 3 $ a a ESS: ma + 2 2 IL 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. : ? ie * s = z 3 1 2 é 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 , ‘ j 4 4 ° rr ° : & ‘ & . « 4 ° : . ; 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.’ . 4 a 3 iti der PL Fi a & id a = 4 —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 «a ie. Se a ed = 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_1013%3A2. Public record. Not legal advice.