Home/D. Kansas/Ehrenreich v. Londerholm

Ehrenreich v. Londerholm

273 F. Supp. 178, 1967 U.S. Dist. LEXIS 8172
CourtDistrict Court, D. Kansas
DecidedSeptember 11, 1967
DocketNo. T-4122
StatusPublished
Cited by2 cases

This text of 273 F. Supp. 178 (Ehrenreich v. Londerholm) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ehrenreich v. Londerholm, 273 F. Supp. 178, 1967 U.S. Dist. LEXIS 8172 (D. Kan. 1967).

Opinion

OPINION

ARTHUR J. STANLEY, Jr., District Judge.

In this action the plaintiffs seek declaratory and injunctive relief, contending that Kansas statutes requiring execution of a “test oath” by state employees (K.S.A. 21-305 and K.S.A. 21-308) are unconstitutional. The statutes attacked are alleged to be violative of:

“The rights of freedom of speech, freedom of belief and conscience, and freedom of association of the First Amendment, as those rights are protected from invasion by the State by the Due Process Clause of the Fourteenth' Amendment.
“The guarantee of the Due Process Clause of the Fourteenth Amendment against enforcement of unconstitutionally vague State statutes and against the denial of procedural due process.
“The protection of Article I, Section 10, Clause 1, against the passage by any State of Bills of Attainder and ex post facto laws.”

The facts as stipulated (Appendix) are adopted as the findings of the court. At the time of argument it was further stipulated that the form of oath identified as Exhibit D is utilized by various departments of the State of Kansas pursuant to K.S.A. 21-305, but not by the Board of Regents of the State, of Kansas.

Jurisdiction of this court is invoked under 42 U.S.C.A. §§ 1983 and 1984; 28 U.S.C.A. §§ 1331 and 1343; 28 U.S. C.A. §§ 2281 and 2284; and 28 U.S.C.A. §§ 2201 and 2202.

Defendants suggest that the court should not grant relief until the questioned statutes have been construed by the courts of the state. They contend that such construction could very well eliminate federal constitutional questions, arguing that the Kansas Declaratory Judgment Act (K.S.A. 60-1701 to 60-1703) provides an adequate and effective means of securing resolution by the Kansas courts of the questions here presented. The abstention doctrine involves discretionary exercise of a court’s equity powers. By its use a court merely declines to decide state law questions and denies immediate relief. It does not dismiss the complaint, but retains jurisdiction pending a decision by the state courts on state law issues. Relitigation of federal issues is not barred even if the state courts have decided them. England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964). Abstention here very likely would be followed by further proceedings in this court after completion of state court action and would result in undue delay in the ultimate adjudication of the case on its merits. See Baggett v. Bullitt, 377 U.S. 360, 375, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964). We decline the invitation to abstain.

No purpose would be served by a recitation here of the long line of decisions of [180]*180the United States Supreme Court approving efforts by the states and their political subdivisions to exercise what Mr. Justice Minton described as “the right and duty to screen the officials, teachers, and employees at to their fitness to maintain the integrity of the schools as a part of ordered society,” (Adler v. Board of Education, 342 U.S. 485, 493, 72 S.Ct. 380, 385, 96 L.Ed. 517), a right and duty the court then (1952) said could not be doubted. Those interested in what now is only history are referred to the dissenting opinion of Mr. Justice Clark, with whom Justices Harlan, Stewart and White joined, in Keyishian v. Board of Regents, 385 U.S. 589, 620, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967). Until the announcement of the Keyishian decision (January 23, 1967), it is likely that we would have held that plaintiffs’ constitutional rights are not violated by the requirement that they subscribe to the Kansas test oath. See Adler v. Board of Education, supra; and Garner v. Board of Public Works of City of Los Angeles, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317 (1951). While Adler has not specifically been overruled, the Supreme Court, speaking through Mr. Justice Brennan, has rejected its major premise. That premise, no longer viable, was “ “ * * that public employment, including academic employment, may be conditioned upon the surrender of constitutional rights which could not be abridged by direct government action.” 385 U.S. at 605, 87 S.Ct. at 685. The “constitutional doctrine which has emerged” since the Adler decision is that “legislation which sanctions membership unaccompanied by specific intent to further the unlawful goals of the organization or which is not active membership violates constitutional limitations.” 385 U.S. at 608, 87 S.Ct. at 686. Measured by this yardstick, K.S.A. 21-305 falls short.

It is our duty to follow the decisions of the Supreme Court and, to the extent that the Keyishian decision is not in harmony with the decision in Garner v. Board of Public Works of City of Los Angeles, supra, still to follow it as the latest pronouncement of the higher court. 21 C.J.S. Courts § 192; R. J. Reynolds Tobacco Co. v. Robertson, 80 F.2d 966 (4th Cir. 1936). We conclude that K.S.A. 21-305, to the extent that it proscribes mere membership in an organization advocating the overthrow by violence of the government of the United States or of the state, without any showing of specific intent to further the aims of such organization, suffers from the “overbreadth” denounced in Keyishian, and is therefore unconstitutional.

K.S.A. 21-308 prescribes the penalty for violation, not only of K.S.A. 21-305, but also that for violation of K.S.A. 21-306 and 21-307. To strike it down, as plaintiffs pray, would emasculate 21-306 and 21-307, not here challenged.

A decree will be entered in accordance with this opinion.

APPENDIX

“Stipulation of Facts

“The parties above named by their respective attorneys do, for purposes of the trial of this action, stipulate and agree that the following facts are true and correct and that no further evidence need be offered or introduced in support of said facts:

“1. Plaintiff, Gerald A.

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Bluebook (online)
273 F. Supp. 178, 1967 U.S. Dist. LEXIS 8172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ehrenreich-v-londerholm-ksd-1967.