Hirschman v. County of Los Angeles

249 P.2d 287, 39 Cal. 2d 698, 1952 Cal. LEXIS 295

Opinions

GIBSON, C. J.

Plaintiffs, permanent civil service employees of the county of Los Angeles, were discharged because they refused to execute the oath and affidavits prescribed by orders of the county board of supervisors made in 1947 and 1948.

Footnotes

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* The county civil service commission sustained the discharges after a hearing upon stipulated facts, and plaintiffs sought a writ of mandate in the superior court to compel their reinstatement and the payment of wages retroactive to the date of discharge. This appeal was taken from the judgment denying the requested relief.

The oath and affidavits are as follows:

“A. Oath op Office or Employment

“I,---do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution and laws of the State of California, against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office or employment on which I am about to enter or am now engaged, so help me god.

“B. Affidavit re Subversive Activity

“I do further swear (or affirm) that I do not advocate, nor am I now a member, nor have I been since December 7, 1941, a member of any political party or organization that advocates the overthrow of the Government of the United States or State of California, or County of Los Angeles, by force or violence, except those specified as follows:_ (the organizations here to be listed embrace all organizations advocating the overthrow of government by force or violence including any of the hereinafter named if they should ever be determined by a court of law to advocate the overthrow of government by force or violence); and that during such time as I am an officer or employee of the County of Los Angeles, I will not advocate nor become a member of any political party or organization that advocates the overthrow of the Government of the United States, or State of California, or County of Los Angeles, by force or violence.

“C. Affidavit re Aliases

“I do further swear (or affirm) that I have never used or been known by any names other than those listed as follows:__

“D. Membership in Organizations

“I do further swear (or affirm) that I have never been a member of, or directly or indirectly supported or followed any of the hereinafter listed organizations, except those that I indicate by an X mark.” [Next follows a list of 142 organizations which were selected from those mentioned in one or more of the reports of the Joint Fact-Finding Committee of the California Legislature on Un-American Activities in California.]

All of the facts pertinent to this case were stipulated to by the parties when the matter was before the county civil service commission. It appears that plaintiffs were given an opportunity to take the oath and make the affidavits but did not do so. Thereafter, on April 27, 1948, the board of supervisors ordered all department heads to direct the employees under them to execute the oath and affidavits immediately. Plaintiffs were advised of this order and were informed that refusal to comply would be considered insubordination. On or about May 5th plaintiffs refused to obey the order on the ground that the oath and affidavits were unconstitutional.

On July 20th a new order was adopted by the supervisors which provided as follows: “ (1) That unless the employee executes parts A, B and C of the oath and affidavit attached hereto and made a part of this order, by 5:00 p.m. on the 26th day of July, 1948, that the department head will discharge such employee at that time. (2) That if the employees refuse on the 26th day of July, 1948, to execute paragraph D of said oath and affidavit they will be discharged for such refusal if and when the loyalty test litigation now pending is finally concluded with a determination that the County was justified in requiring from its employees the information embodied in paragraph D.” Thereupon plaintiffs were directed by the heads of their departments to execute “parts A, B and C of said oath and affidavit," and they refused to take “the oath and affidavit or parts A, B and C" within the prescribed time. Plaintiffs were notified that they were discharged as of July 26th on the ground of insubordination because of refusal to execute the oath and affidavits in full on May 5th, and refusal to execute parts A, B and C pursuant to the order of July 20th.

The civil service commission held a hearing to review the discharges, and on November 23,1948, it found and concluded that plaintiffs’ “failure to sign the Loyalty Oath and Paragraphs A, B, and C of the Affidavit, after having been ordered to do," justified their dismissals for insubordination. The decision of the commission makes no reference to paragraph D or to plaintiffs’ failure to take the oath and make all of the affidavits as directed by the supervisors in their order of April 27, 1948. As noted above, the board’s order of July 20, 1948, provided that employees who refused to execute part D “will be discharged for such refusal if and when the loyalty test litigation no-yr pending is finally concluded with a determination that the County was justified in requiring from its employees the information embodied in paragraph D." The “pending" litigation referred to by the supervisors (Steiner v. Darby, 88 Cal.App.2d 481 [199 P.2d 429]) was not finally concluded when the civil service commission rendered its decision sustaining the discharges. Therefore, under the terms of the board’s order, the commission could not properly consider plaintiffs’ failure to execute part D as a ground for dismissal, and the commission’s decision shows that it was based on and restricted to plaintiffs’ refusal to execute paragraphs A, B and C. The trial court concluded that plaintiffs’ refusal to execute parts A, B and C constituted insubordination and sufficient cause for discharge, and in view of the commission’s decision we may’ disregard the further conclusion of the trial court that plaintiffs’ earlier refusal to execute paragraphs A, B, C and D likewise furnished sufficient cause for dismissal. It follows that we need not pass upon the issues raised with respect to part D, and inasmuch as plaintiffs stipulate that they do not have, and never did have, any objection to paragraphs A and C, the validity of paragraph B is all that remains to be considered.

Substantially the same provisions as appear in paragraph B are to be found in the oath prescribed by the Levering Act (Gov. Code, §§ 3100-3109), the validity of which was upheld in Pockman v. Leonard, ante, p. 676 [249 P.2d 267].* There is only one difference between the two which requires discussion. The employee is directed by paragraph B to swear that he is not, and since December 7, 1941, has not been, a member of an organization which advocates the overthrow of the government by force, except those which he lists in a space provided for that purpose, and immediately under this space appears the following: “ (the organizations here to be listed embrace all organizations advocating the overthrow of government by force or violence including any of the hereinafter named if they should ever be determined by a court of law to advocate the overthrow of government by force or violence).” The “hereinafter named” organizations referred to are those listed in paragraph D, and the county concedes that each employee was expected merely to fill out the form in accordance with his information on the date that he executed the document. The quoted language, when properly construed, required plaintiffs to designate only those of the named organizations which they knew advocated overthrow of the government by force, or which to their knowledge had been held by a court to advocate such action. They were not required to speculate upon what the courts might determine in the future. As thus interpreted, the requirement was sufficiently certain to be understood and applied, and it must be sustained under our decision in Pockman v. Leonard, ante, p. 676 [249 P.2d 267], that public employees may properly be required to furnish information regarding their memberships in organizations which, to their knowledge, have advocated the overthrow of the government by force and violence.

The judgment is affirmed.

Shenk, J., Edmonds, J., Traynor, J., Schauer, J., and Spence, J., concurred.

Tlie oath and affidavits as originally adopted in August, 1947, were upheld by the District Court of Appeal in Steiner v. Darby, 88 Cal.App.2d 481 [199 P.2d 429], On December 5, 1949, under the title of Parker v. Los Angeles County, 338 U.S. 327 [70 S.Ct. 161, 94 L.Ed. 144], writs of certiorari were dismissed by the United States Supreme Court on the ground that the federal questions presented were “not ripe for decision. ’ ’

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The Levering Act did not go into effect until after plaintiffs were discharged, and the question of its operation is not involved here. It may be noted, however, that the oath and affidavits which are before us in the present case cannot now be properly required by the county, since the Levering Act has fully occupied the field of legislation on the subject of loyalty oaths for public employees in California. ‘ (Bowen v. County of Los Angeles, post, p. 714 [249 P.2d 285]; cf. Fraser v. Regents of University of California, post, p. 717 [249 P.2d 283].)