Cases by Issue - Loyalty Oath

Communist Party Of Indiana v. Whitcomb - Oral Argument

Tue, 03 Feb 2009 02:40:22 +0000

Case:

Communist Party Of Indiana v. Whitcomb

Media File:

72-1040_19731016-argument.mp3

Featured:

Socialist Labor Party v. Gilligan - Oral Argument

Thu, 23 Aug 2012 18:17:43 +0000

Case:

Socialist Labor Party v. Gilligan

Media File:

70-21_19720323-argument.mp3

Related Transcript:

70-21_19720323-argument

Transcript:

Argument of Sanford Jay Rosen

Chief Justice Warren E. Burger: We’ll hear arguments next in Number 70-21 Socialist Labor Party and others against Gilligan.

Mr. Rosen, you may proceed whenever you’re ready.

Mr. Sanford Jay Rosen: Mr. Chief Justice and may it please the Court.

This case involves the constitutionality of Ohio Revised Code Section 3517.07 which imposes political tests on access to the ballot in Ohio.

The statute is set out in the appendix in pages 12 through 13.

But it precludes from the ballot in Ohio Elections, and if I may quote briefly from the statute, “Any political party or group which advocates, either directly or indirectly, the overthrow, by force or violence, of our local state or national government or which carries on a program of sedition or treason by radio, speech or press or which has in any manner, any connection with any foreign government or power or which in manner has any connection with any group or organization so connected or so advocating the overthrow by force or violence of these various governments.

Exempted from this requirement of the statute, that the party to get on the ballot actually meet these tests, are parties and groups that have a place on the ballot in each national and gubernatorial election in Ohio since 1900.

Those two parties -- there are only two parties that meet that tests. Of course, those are the Democratic and Republican parties.

Under the statute to secure a ballot position --

Unknown Speaker: You certainly are not suggesting that in the absence of the exception, they couldn’t get on the ballot of this?

Mr. Sanford Jay Rosen: Of course not, Your Honor.

I am implying an argument that I’ll get to some what later which is an equal protection argument that by exempting any parties from this requirement, the State is drawing invidious classification.

And I will come to that argument if I may, Your Honor.

But under the statute, parties that do have to meet this test in fact have to submit an affidavit signed by 10 members of the party or group, three of whom are to be executive officers of the party.

After the affidavit in the form of the statute is executed and filed to the Secretary of State.

The Secretary of State is required to conduct his own investigation of the facts appearing on the affidavit and to make his own determination of whether the party or group should be on the ballot.

Now the plaintiffs brought suit in 1970, challenging this provision as well as any number of other Ohio provisions, but those provisions which were in the litigation have all been washout of this suit by subsequent action of the legislature of Ohio.

We sought an injunctive and declaratory relief from a prejudge statutory Court and on May 5, 1970, the District Court declared the provision, the statute of Ohio unconstitutional on its face, but reading the controlling and only decision of the Ohio Supreme Court on the statute, the State ex rel. Beck v. Hummel case, excuse me, to narrow the statute.

The Court upheld the statute as construed and thus the Court held that the statute now means and this is quote in the appendix of page 62, that an oath is required that; one, the party is not engaged in an attempt to overthrow the Government by force or violence.

Two, the party does not carry on a program of sedition or treason as defined by criminal law.

And three, the party is not knowingly associated with a group attempting to overthrow the Government by force or violence.

Plaintiffs appealed from the denial of their injunction upholding the statute is construed, defendants have cross appealed from so much of the decision of the three-judge District Court holding the statute unconstitutional on its face.

Plaintiffs request this Court to reverse and remand with directions to the District Court to declare entire statute unconstitutional and to enjoin its enforcement in the future.

There are several reasons why the statute is unconstitutional.

Some of these reasons go to the statute on its face, some go to the statute as construed and interpreted by the District Court with the assistance in Ohio Supreme Court and some relate to both.

It’s the position of plaintiffs that the starting point for analysis of this statute is an appreciation of the importance of the right to vote and to gain access to the ballot.

This Court in numerous decisions over the last decades has held for example as in Wesberry versus Sanders, that no right is more precious in a free country than not of having a voice in the election of those who make the laws unto which its good citizens we must live.

Other rights even the most basic are elusory if the right to vote is undermined.

It is our first position in this case, Your Honors that there is an absolute right on the part of the electorate to vote for candidates for public office without the State interposing any kind of a screen between that right to vote and access to the ballot.

Unknown Speaker: This wasn’t a three-judge District Court, was it?

Mr. Sanford Jay Rosen: Yes, it was Your Honor.

It was a three-judge Court.

You recall the case did come up as one of two consolidating cases involving a broad gauge attack to a number of Ohio election provisions, and as I suggested, most of those provisions have been mooted out of the case by a legislative --

Unknown Speaker: (Inaudible)

Mr. Sanford Jay Rosen: Right.

And this is the only provision that appears to remain.

Okay, we think that there is a very substantial, first amendment component to the right to vote.

We believe that this Court has recognized that substantial First Amendment component.

In the predecessor to this case, Williams versus Rhodes for example, the decision by Justice Black on equal protection grounds started of from an appreciation of the fact the right of individuals to associate for advancement of political beliefs and the right of qualified voters regardless of their political persuasion to cast there votes effectively is a fundamental right and was the issue involved in that particular case and indeed remains the issue in this case.

For our first position on this law is that Ohio has no right to interpose any kind of a political test for the vote itself and for access to the ballot.

The question of what Ohio may do in terms of qualifying elected officials when it comes time for them to take their oath of office is not a question before this Court, we don’t even act that point.

So we would submit that not even the oath of office contemplated in Article 6 of the Constitution in the United States is appropriate.

Now, on the other hand, should the Court be reticent about taking this particular step in this case.

Our second position is, that Article 6 of the Constitution which provides for a constitutional oath of office for elected officials in the United States read together with Amendment Number 1 has to mean that at most in terms of political credentials, speech and association credentials of candidates for public office, parties on about, all that can be required is a test basically in the form of in Article 6 affidavit or oath of office.

We believe that this, although is not the holding of the Court in the case of Bond versus Floyd involving access to the legislature in the State of Georgia and it is not of course the holding of the case in this Court’s decisions in Powell versus McCormack involving the Court’s ability to review a determination by the Congress that a member should be refused his sit and holding that the house is limited in its consideration only to those constitutional requisites which the member must meet and which are set forth.

These two decisions do imply very strongly at the most that the State may require the Article 6 kind of test.

We would refer the Court as well to a number of state court decisions, the leading one of which -- although dealing with state constitutional law is Imbrie versus Marsh.

It is not cited in brief unfortunately, it is a decision of Chief Justice Vanderbilt of the New Jersey Supreme Court and its reference is 71 Atlantic second 352, three New Jersey 578, in which Chief Justice Vanderbilt faced with a State law of New Jersey which added to the qualifications for ballot access and for office as an elected official, things that were not contemplated in the constitutional oath provided under federal and state constitution.

The Court ruled quite clearly that the constitutional oath requirement brooked no additions, whatsoever.

On this point, the Court might also refer to Shub v. Simpson which is cited in our brief.

The Maryland Court of Appeals decision, although it disavowed the Imbrie case so far as state offices are concerned, it clearly accepted the Imbrie rationale on a preemption basis so far as federal elected officers are concerned.

Now, in addition to our first two points, we have a number which are perhaps more fully briefed in our brief.

The third point on constitutionality of this Ohio provision pertains to the statutes invasion of the right to political association.

The statute does not even screen candidates as such.

It is not a requirement that a candidate execute an oath which was precisely the question before this Court in the Guinn case of which the District Court below made much.

That’s not the case, the question in this case.

What we have here is a statute which presumes to screen political congeries, associations, groups and parties and to keep them off of the ballot.

We will submit the cases like Gibson v. Florida Legislative Investigation Committee and NAACP v. Alabama would suggest that such a statute is at least constitutionally presumptively unconstitutional.

In addition, since the statute requires that 10 members of the party whether candidates or not, only three of whom are to the offices of the party must execute the affidavit, there is a direct invasion of the associational rights of those individuals as indicated in the Shelton and Bates decisions and the decisions involving the Subversive Activities Control Act and the registration requirements for communist action organizations, Albertson v. CP and the like.

This statute in addition is unconstitutionally overbroad.

It is perfectly clear the statute on its face if all the Court had before was the statutory language is unconstitutionally broad.

With fully briefed that point and I won’t go over the statute on its face in terms of the overbreadth.

The State does suggest that the statute is still constitutional on its face, but the District Court below certainly held to the contrary.

We submit that even as construed by the Supreme Court of Ohio in the Beck case, the statute is unconstitutionally broad and indeed the District Court below misread the Supreme Court of Ohio’s decision.

It is our position that the Supreme Court of Ohio in narrowing the statute only narrowed it to the point of drawing a distinction between violence or engaging in violence, but including in that category mere advocacy of violence or violent overthrow, and on the other hand, peaceable change as through use of the amendment process.

A careful reading of the decision of the Supreme Court of Ohio, I think, will make that clear.

In addition, I think that although there are no other Ohio Supreme Court decisions on point, there are a number of Ohio lower court decisions dealing with analogous statutes which seemed to indicate as well that their understanding of the law in Ohio was -- that the distinction being drawn is between violence including mere advocacy and peaceable change.

Even as construed as interpreted by the District Court below, however, the statue remains unconstitutionally broad.

Again, to a large extent, this point has taken up in our argument I just mentioned the two most notable aspects of the overbreadth statute as construed by the District Court.

Fourth, the District Court in its narrowing construction of statutes speaks of the party knowingly associated or associating with a group attempting to overthrow Government by force or violence.

We submit that the use of the term knowingly associated is two-open ended even though this term itself two-open ended, in addition, we submit that this criterion established by the District Court does not take account of numerous decisions of this Court which hold that mere knowing association membership in or participation in a group which is engaged in or advocating violent overthrow is not enough.

There must be specific intent on the part of the person or in this case party associating to further or fulfill the unlawful goals of the organization which is engaged in the unlawful act or advocacy.

Unknown Speaker: Not when I gather Mr. Rosen, you don’t extend your overbreadth argument to either elements one or two of the District Court’s construction.

Mr. Sanford Jay Rosen: We don’t extend the overbreadth argument to such.

I do extend the next point which of course is a vagueness point to points one and two.

I must say to the extent that I understand what number one means, the party is not engaged in an attempt to overthrow the Government by force or violence.

It would be difficult for us to argue that that is overbroad, assuming that this inquiry can be made or this investigation can be made and we do not conceive that.

It seems a silly thing to ask somebody to make an affidavit about since it is speaking of the immediate present and this instant and has no reference to future behavior activity, but I suppose we couldn’t say it is overbroad if anything, it is incredibly narrow.

However, we do think that there may be some vagaries involved in that particular language.

Excuse me.

Less in a point one, except this red with the statute itself than in the point two, the party does not carry on a program of sedition or treason as defined by the criminal law.

Well, I supposed we know what treason means under the criminal law.

I assume, and I think the Court would assume that treason would be limited by Article 3 of the Constitution to mean making war on the United States or any of them or adhering to their enemies proven according to the two-witness rule or open confession.

And indeed, I believe there is an Ohio statute on treason though I don’t know that it has ever been enforced.

However, there is no sedition law in Ohio.

The closes thing to a sedition law in Ohio was the Criminal Syndicalism Act which this Court declared was unconstitutional in Brandenburg versus Ohio.

There is no referent in Ohio jurisprudence at all for meaning for the term sedition and of course this Court has recognized – I’ve had the reference to your language Mr. Justice Brennan on the difficulty the Court has with you, so those two words, sedition and treason and the difficulty of the defining them.

But that is quoted in the brief and we would rest on that proposition so far as the construction by the District Court is concerned, these are the primary vague provisions in this newly construed statute.

But again, we do not agree that the District Court was correct in its construction in light of the Supreme Court of Ohio’s view.

We think it’s perfectly clear further that the vagueness that’s found on the statute and the overbreadth is incredibly magnified by the deprivations of due process of law in a procedural sense that are found in the statute.

First is a burden of going forward which is placed immediately upon the party.

The statute requires that an affidavit be submitted on behalf of the political party or group.

It seems to us that that kind of a requirement is interdicted by this Court’s decision in Speiser versus Randall, once you’re in the First Amendment area.

Further, the affidavit isn’t enough.

It is not even presumptively dispositive of the facts of not being subversive or not fitting within the statute.

The statute provides that the Secretary of State shall undertake an independent investigation, and the evidence of the kind of an investigation the Secretary of State is likely to conduct is presented in the opinion of the Supreme Court of Ohio in the Beck v. Hummel case.

It was cursory and anti First Amendment at best.

And so the Supreme Court of Ohio itself found in that particular case.

In the course of the investigation, the Supreme Court of Ohio ruled that the Secretary of State need, provide no hearing, none whatsoever, he can do his own ex parte investigation.

Clear offense to procedural due process and further, the Supreme Court of Ohio ruled that once he made his findings and certified that the party or group should not have access to the ballot, it should not be placed upon the ballot.

The Supreme Court ruled they would review, they and the other Ohio courts review according to a test of substantial evidence.

Whether there is substantial evidence, I assume the Court meant on the record as a whole to support the decision of the Secretary of State, although the test may not be even as generous to the party or group as a substantial evidence rule because the Court also speaks about reviewing according to a determination whether will overrule the Secretary of State, only if his finding is manifestly against the weight of the evidence.

Much too stringent and evidentiary test onto this Court’s decisions in Speiser versus Randall, Kernel versus Hagen Buffin, and Law Students Association versus Wadmond, so again, another constitutional infirmity in the scheme.

And finally, to return to the point that Justice Stewart brought out in his question.

We think all of these defects are further magnified by the fact that there is an exemption for parties with a great deal of continuous longevity on the ballot in the State of Ohio, those two parties of course being the democrats and Republicans.

We do not imply at this time that either of those parties would have difficulty securing the ballot position under the test of this statute even as construed assumingly quite understand what they are.

What we do mean to imply is your observation Justice Stewart in Jenness versus Fortson where you said time after time, established political parties at local state and national levels has while maintaining their old labels, change the ideological direction because of influence and leadership of those with unorthodox or “radical” views.

The history of this United States is replete with examples of changes of ideological direction on the part of political parties in the United States.

I just reviewed a document that had been prepared by the former Secretary of State of Ohio on the election experience in Ohio over a long period of time from the beginning of the republic to the present.

I counted 37 separate political parties of whom I know at least 10 engaged in one type of metamorphosis or another of which several were more or less revolutionary for their time including the evolutionist part.

Presumably that party might not be able to secure ballot position in Ohio today if it attempted to go on the ballot.

On the basis of this various defects, it is the appellants’ position that the decision of the Court below should be reversed, the case remanded and with instructions to enjoin the operation of statute.

I would like to reserve for rebuttal.

Thank you.

Chief Justice Warren E. Burger: Very well Mr. Rosen.

Mr. Guittar.

Argument of Donald J. Guittar

Mr. Donald J. Guittar: Mr. Chief Justice and may it please the Court.

I would like to answer the first objection which has been raised which is a question of the violation of due process, procedural due process.

I think if the Court will examine the Ohio case of Beck versus Hummel.

They will find out that the Ohio Court and the Ohio law does not run a fall of the previous decisions of this Court such as Speiser for this reason.

The Secretary of the State of Ohio makes a determination on the basis of the affidavit.

It is true that that is a unilateral determination.

The next step is he then refuses to certify and put the party on the ballot.

The next step then is that the person or I mean the party must go to Court.

At this point and in the Beck case, the Ohio Supreme Court held that the affidavit has a presumption in its favor of good faith and truth and that the Secretary of State in answering that has got to overcome that presumption and further that the Secretary of State has got to come forward with substantial evidence, so this is not the usual situation.

This is not the situation which the Court had before such as in the Speiser case in which the entire burden of overturning and adverse administrative determination was put on the part of the taxpayer.

Justice Potter Stewart: So, how did this case arise as -- or how far does a case with controversy did they -- if somebody refused to put this people on the ballot because of the lack of an affidavit?

Mr. Donald J. Guittar: No, Mr. Justice Stewart.

The Socialist Labor Party refused to execute the affidavit.

If you will examine the pleadings, they sought that they have just plead as their third course of action, just the alleged conflict, the statute and then they applied the conflict.

Unfortunately, I can not give you the fullest factual answer that I would like to Mr. Justice Stewart because I was not present at that time or at the trial.

Justice Potter Stewart: This is a third course of action is it not for you, beginning on page 12 of the appendix?

Mr. Donald J. Guittar: That’s correct.

Justice Potter Stewart: Alright.

And they recite, they quote the language of the statute and they say it’s unconstitutional and they say at paragraph 21 as they granted relief, they’ll be irreparably injured but they don’t say how or why, do they?

Mr. Donald J. Guittar: No, they do not.

Justice Potter Stewart: I wondered if they refuse to file an affidavit and for that reason denied a place in the ballot or filed an affidavit that the Secretary of State found deficient?

Mr. Donald J. Guittar: As to my understanding, based upon a transcription which I had made of the oral argument from the Statement of the Attorney for the Socialist Labor Party that they had refused to execute the affidavit.

Unknown Speaker: I don’t think they alleged that, do they?

Mr. Donald J. Guittar: No, it is not alleged in the petition.

Unknown Speaker: The case is kind of a search and destroy of the complaint lead. Here is the statute on the --

Mr. Donald J. Guittar: That’s right.

Unknown Speaker: -- and brought some of the Ohio General Code and we do not like, so that is about what they said.

Mr. Donald J. Guittar: That’s correct.

Unknown Speaker: I’m not going to say more than that.

They say it’s unconstitutional.

Mr. Donald J. Guittar: That’s right and invoked.

Unknown Speaker: But they do not say how they are harmed?

Mr. Donald J. Guittar: Oh, they do not.

Justice William H. Rehnquist: The case was decided on summary judgment, wasn’t?

Mr. Donald J. Guittar: Yes, it was Mr. Justice Rehnquist.

I think that -- I do not recall whether any harm is alleged in the prayer subsequent to the pleading of the third cause of action.

I believe you’re correct Mr. Justice Stewart.

I believe that the standard of substantial evidence which the Ohio Supreme Court in the Beck case plays upon the Secretary of State of Ohio is sufficient to meet the procedural defective allegations which the plaintiffs have raised here.

I would like to pass on next to the question of the statute itself.

I believe it’s fair to say that if this Court has spoken out against any words or any particular words and condemned them for vagueness, the word advocacy and its use in loyalty oath.

The Court has repeatedly condemned the use of that language.

If the Court wishes to apply that to a political party statute, a political party oath then certainly, this statute of the State of Ohio is unconstitutionally vague and the ordinary person could not tell from use of the words advocacy and so on, whether he was in fact violating that statute.

With the reservation that we deal here with a political party and the practicalities of the matter is, not that any individual is punished, but it is solely that a political party label or mean does not go on the ballot.

I think, in examining the cases which the Court has decided in the area of loyalty oaths.

I think it would be well to take in mind that there is no discharge and no dismissal problem here as the Court has had before at so many times, particularly in the academic freedom cases.

I would like to point out to the Court that we also are dealing with a matter of what the state legislature has deemed the self-preservation and the self defense of the state through requiring the oath as restricted by the District Court.

Justice Thurgood Marshall: What is the interest of the state?

Mr. Donald J. Guittar: The interest is --

Justice Thurgood Marshall: Then, if I understand in correctly, it is not this man will hold office, right?

Mr. Donald J. Guittar: That’s correct in the statute, Mr. Justice Marshall and the statute really does not operate against the man.

The man can go on the ballot but he cannot have a party label on it if the affidavit is not the next --

Justice Thurgood Marshall: Even if the man is the most loyal citizen in the world, and he wants to run on that label, he can’t.

Mr. Donald J. Guittar: Well, I believe that, Mr. Justice Marshall, that an examination of the Beck decision by the Ohio Supreme Court, so as that, if the communist party itself would attended this oath, that the Ohio Supreme Court is recognized that the fact that someone is a communist, it does not necessarily mean that they believe in force or violence.

Justice Thurgood Marshall: But my point is that, a man who is not a member of this party and who does not advocate anything but good, solid Americanism close-motherhood who wants to run on that label, he can not.

Mr. Donald J. Guittar: I believe he can.

Justice Thurgood Marshall: Well, how could he, if they do not file the affidavit?

Mr. Donald J. Guittar: Well, yes you would have to file the affidavit.

You would have to file --

Justice Thurgood Marshall: There is no way that they can run, unless they filed the affidavit.

Mr. Donald J. Guittar: Under the party label, that’s right.

That’s right.

In other words, let the loyal individual --

Justice Thurgood Marshall: What is the interest that Ohio has in that?

Mr. Donald J. Guittar: Well, Ohio, I think it’s fair to say cannot have any interest in keeping loyal American citizens and citizens of Ohio of the ballot and I do not believe that it is.

Justice Thurgood Marshall: (Inaudible)If loyal party has talked about?

Mr. Donald J. Guittar: Well, my use of the word disloyal was unfortunate.

That is not part of the District Court’s reading.

Justice Thurgood Marshall: Well, I am still trying to find out, what is the interest in the state in not letting the party use his name on a ballot?

Mr. Donald J. Guittar: If a party is committed to the overthrow, to attempting to overthrow the government --

Justice Thurgood Marshall: What if before he is not let the men have the name on the ballot?

Mr. Donald J. Guittar: Well, if they become elected through the use of the name --

Justice Thurgood Marshall: Then you can keep them out by the oath.

Mr. Donald J. Guittar: That’s right, but if they also were not there --

Justice Thurgood Marshall: What is the interest in not letting him run?

Mr. Donald J. Guittar: It is, to my understanding, it is not an interest in not letting him run.

It is an interest in not letting them run without the party label, to my understanding.

Justice Thurgood Marshall: Is he not having the party label on the ballot, Does it contaminate the ballot or something?

Mr. Donald J. Guittar: No, it does not.

Justice Thurgood Marshall: Well, then what’s the reason for it?

Mr. Donald J. Guittar: Well, unfortunately, Mr. Justice Marshall, I cannot refer you to legislative history, this statute which was passed in 1941.

There are no debates.

There is no legislative intent to refer to that I can give for further explanation other than that --

Justice Thurgood Marshall: Do you feel any responsibility of the Assistant Attorney General of Ohio to give to this Court a reason that the state has for the statute?

Mr. Donald J. Guittar: Yes.

Justice Thurgood Marshall: Do you have any responsibility for it?

Mr. Donald J. Guittar: Yes, I do.

Justice Thurgood Marshall: That’s all I am asking.

Mr. Donald J. Guittar: I know Mr. Chief Justice Marshall.

I am endeavoring as best as I can to answer you.

I believe what you’re asking me is what difference, so long as someone can be on the ballot.

Justice Thurgood Marshall: My question is, what is the state’s interest in enforcing this statute?

Mr. Donald J. Guittar: I think it is in keeping off the ballot individuals who are members of a party who could be elected through the use of a party name which party attempts to overthrow the government by force and violence, to thereby become elected and to use the offices of the state in an attempt to overthrow the government by force or violence.

Unknown Speaker: I don’t see anything in the oath that says that.

I mean in this thing, this says that.

But I guess it’s the best you can do.

Mr. Donald J. Guittar: With respect to the state’s interest in avoiding that which I just referred, I believe this Court has implicitly recognized or explicitly recognized this interest in the Gardner case, in the Doyle case, and implicitly in the Duren case.

Moving along to the Court’s opinion below, in the restricted reading which the Court gave the statute below with respect to item number one, this Constitution, I believe is fully constitutional.

There are no cases cited, nor can there be any which do anything other than sustain the constitutionality of the language required namely, that one, should not be attempting, that the party should not be attempting, engage and attempt to overthrow the government by force and violence.

Chief Justice Warren E. Burger: I think we will resume right after lunch on that point.

You may proceed Mr. Guittar.

Mr. Donald J. Guittar: Thank you Mr. Chief Justice and may it please the Court.

With respect to, going to the second limitation which the District Court below placed upon of the Ohio Statute 3517.07, the second limitation, the first being that the party is not engaged in an attempt to overthrow the government by force or violence.

The second one, the party does not carry on a program of sedition or treason as defined by the criminal law.

As my brother points out in his brief, there is no Ohio Criminal Law defining sedition, but there is for treason and that is substantially the same as the treason which is provided by the Federal Law.

And the treason citation is 2921.01 of the Ohio Revised Code has to do with the levying of war.

With respect to, I would like to point out to the Court that in the Keyishian case, this Court has specifically validated from vagueness the treason, the use of the word treason with respect to oaths.

With respect to the third provision, which is that a party is not knowingly associated with the group attempting to overthrow the government.

I believe that there is sufficient scienter in there, from both from the decision of the Ohio Supreme Court and the scienter which can be implied from this Court’s case in Duren which was approved in Bengate and also Whitehill.

At page 137 of the Beck case, the Ohio Supreme Court, with respect to this question stated that the individuals involved must be personally, personally engaged, in these activities.

But further, if the Court should find that there is not sufficient scienter in the third limitation placed on the oath, we suggest that the Keyishian Case which requires you must have a specific intent to further the illegal aims of the organization would be a proper and further limitation.

We believe, for all the reasons that the oath as limited is not unduly vague and can be understood by those who required to sign it on behalf of a party.

With respect to the Equal Protection claims violations thereof, I believe, it is a legitimate state interest and can reasonably be a legislative by a state legislature, that parties who have perpetually participated in the election process over the years and parties who have not had anyone utilize the state in attempting to overthrow the state by force or violence, that is a perfectly proper and natural use of the power and does not violate the Equal Protection.

I would like to point one citation which is not in our brief, which the Court may wish take in consideration in its deliberations and decision on this case and that is Lisker vs. Kelley which was affirmed just last year, 401 U.S. 928.

That case involved candidates and the use of a candidate’s oath.

That oath was found proper in that case.

In summation, I urged that the Court approve defining a decision of the District Court, I believe that the interest of the State in self-preservation are sufficient to require this party oath.

We believe that the grounded decision is still the law of the land and is controlling in this case.

I thank the Court very much, Mr. Chief Justice.

Chief Justice Warren E. Burger: Mr. Rosen, do you have anything further?

Rebuttal of Sanford Jay Rosen

Mr. Sanford Jay Rosen: If I may Mr. Chief Justice.

Unknown Speaker: Mr. Rosen, may I ask you a question.

Justice Stewart asked Mr. Guittar as to the steps that the party had actually taken to get on the ballot on Ohio.

I know it as they pointed out in David's file in connection with the motion for summary judgment that I don’t find in the appendix.

Did those affidavits make an offer in the institutional information other than the pleadings this Court has been done by the party towards getting on the ballot?

Mr. Sanford Jay Rosen: Your Honor, I cannot honestly say, I have not seen those affidavits in a while myself and I do not recall what they are in the file but your question, it seems to me is a broader question addressed to, precisely the consideration that Mr. Justice Stewart was raising and that was the first point that I did wished to make on rebuttal.

And that is, how was the issue raised and why is it in such a rather thin status?

It may well be that the affidavit still allege additional harm.

The issue was raised in the following form, Your Honors.

The complaint was filed on January 28, 1970.

Now, for complaint to be filed on that day, it was impossible under the statute for my clients to execute the affidavit.

The statute provides that the affidavit must be filed with the Secretary of State between nine months prior to the next election and six months prior to the next election.

Conceivably, they might have waited a few more weeks to actually submit the affidavit or to make a request for consideration on the ballot, for placement on the ballot, without an affidavit or they might have try to fulfill all other requirements for inclusion on the ballot without an affidavit but you have to recall this case has a history.

That case has been before this Court once, twice, the Ohio Election Laws have been before this Court.

This is the third time there was a small portion that the Ohio Election Law has dealt within the Zepalady case, I believe, which this Court did resolved in summary fashion earlier this term, and of course Williams versus Rhodes.

And my clients, reading Williams versus Rhodes, and being cognizant of the fact that they were denied, injunctive relief by you, Mr. Justice Stewart, and then confirmed by the Court in William versus Rhodes for failure to prosecute their cause of action quickly, can hardly be faulted for moving at the earliest possible opportunity to challenge as many as the provisions of the interconnected, into tangled web of Ohio Election Laws which they believe were inhibiting their ability to get ballot position.

Unknown Speaker: Are they in the position to challenge the ones they can test until they’ve complied with the ones that they do(Inaudible)?

Mr. Sanford Jay Rosen: Now, on an oath type-provision, it has not been the understanding of this Court that there is any requirement that efforts be made to comply with the oath requirement first.

Unknown Speaker: I do not mean to comply with the oath, but I mean to comply with presumably, administerial type of filing regulation that may existed that you do not quarrel.

Mr. Sanford Jay Rosen: Well, but you see as the case was formulated, this was one of ten provisions engaged in two separate lawsuits that were consolidated in order to try to bring to an end the questions over the Ohio Elections Laws, our clients, decided to go in one lawsuit and to bring all of their challenges at once.

It doesn’t seem to me possible that they could have attempted to comply by registration requirements.

They could not register because they did not have the requisite number of signatures at that point.

They weren’t in the position yet to attempt to certify that they wanted to have a primary yet.

They were challenging the primary provisions.

They were challenging an entire range of provisions.

Some of which had some bearing on the rightness, with the pure rightness of the way in, which the affidavit provision might be dealt with.

Now, in order to bring their challenge to the affidavit provision early enough to get complete relief before the 1970 election, they have to bring it all in one lawsuit, and it seems to me that’s the reason why there wasn’t a kind of pleading that Justice Stewart was alluding to, which would focus on the specific harm of this kind of an affidavit.

It is my understanding further that the appellees intend to enforce the statute as construed in the future.

It is my understanding that my clients intend to occupy a ballot position in the 1972 Election and presumably will attempt to have a ballot position in subsequent elections as well.

So, they are still operating under the gun of this affidavit requirement and the statute itself.

For this election, the appellees or, well I guess he is not a successor at this point, presumably could refuse that position on the ballot for failure to file the affidavit.

I know that he is, in fact, precluding them at this election but he could certainly do it in a subsequent election.

So, for those various reasons, we do believe that the pleadings are a little bit skimpy, do assert or an alleged irreparable harm and do meet the test of pleading and state before this Court and adequately right controversy for this position by the Court.

I just wanted to address two other points that came up in argument on the part of the appellees.

The first, perhaps the minor or more minor point, is appellee represents to this Court, to the Supreme Court of Ohio in ex parte Beck versus Hummel, adopted a rule that the affidavit when filed are presumed to be true and made in good faith.

Now, I have been re-reading the language of the Supreme of Ohio on that particular point and perhaps I believe something, but I find that the Supreme Court of Ohio says, there is no showing in the record before the Secretary that anyone connected with the Ohio Wallace for President Committee advocates the overthrow of Government by force.

And the fact that some members among the many thousands made along to the Communist Party, or the Communist may advocate the election of Wallace is no proof that the affidavit is in accordance with the statute were was not filed in good faith or that it is not efficacious for the purpose for which it was filed.

All the Supreme Court of Ohio presumable is saying is once that the affidavit is filed, the burden of going forward shifts to the Secretary and he must take some steps to investigate.

It does nothing about the ultimate burden of truth.

Justice Thurgood Marshall: But isn’t an affidavit presumed to be true?

If not, why do you have and affidavit?

I don’t see how this material in this case goes?

Mr. Sanford Jay Rosen: Perhaps initially, it is presumed to be true. But the next point is, Mr. Justice Marshall, once the Secretary conducts his investigation, his findings are sustained unless they are not supported by a substantial evidence or are against the weight of the evidence which is hardly the kind of test that this Court has applied in cases like Speiser and other cases involving scrutiny of administrative determinations behind upon First Amendment Rights.

Unknown Speaker: Was there any allegation in the complaint or in the affidavits of the party that your clients would refuse to execute the affidavit?

Mr. Sanford Jay Rosen: The complaint certainly does not specifically allege that they would refuse to do so.

But, I do not think that is a fatal flaw in pleading because presumably even if they executed the affidavit, they are still subject to the burden of the statute and that does not get them on the ballot automatically.

The other flaws in the Ohio provision and procedure are still clearly before the Court.

I am sorry that I am not talking with the affidavits that supported the motion for summary judgment.

Chief Justice Warren E. Burger: When you speak of the other requirements, are you referring to the 7%?

Mr. Sanford Jay Rosen: No, I am sorry Mr. Chief Justice.

I am referring to the investigation that is to be conducted by the Secretary of State for him to make a determination of whether the party should have a ballot position.

The statute does not just let it rest on affidavits.

It charges the Secretary of State to go forward and conduct an investigation, quite exclusively charges him to conduct an investigation.

And there is nothing in the opinions of any of the Courts to deal with this statute to indicate --

Chief Justice Warren E. Burger: Can you state how can you, how do you come to the conclusion that the Secretary of State would not find you eligible to get on the ballot provided that you signed the affidavit?

Mr. Sanford Jay Rosen: Well, in the context of the First Amendment of course and the vagueness in overbreadth doctrine, according to the decisions of this Court, it is not necessary for us to put ourselves precisely in the position of being denied of ballot position.

In fact, in Speiser versus Randall, the procedure is infirmed from beginning to end, we do not have to take the first step to conform to that procedure, we can stop at the door and say this is bad, we go no further and we have adequate standing and right enough controversy to raise of all of those issues.

Chief Justice Warren E. Burger: At this stage and on this record, we have no way of knowing, (Inaudible) clients would decline to sign the affidavit, do we?

Mr. Sanford Jay Rosen: Unless there is something in the affidavit in support of the motion for summary judgment, we don’t.

And I am sorry, I am just not cognizant, that may be on the record --

Chief Justice Warren E. Burger: We really [Voice overlap] the case as you bring it here though?

Mr. Sanford Jay Rosen: Yes, but the record, of course, the case includes the record and the record includes the affidavit in support of motion for summary judgment.

I am just not familiar with that portion of the record.

Unknown Speaker: Mr. Rosen, except for what is the affidavits may contain, all we have, as I understand it, is paragraphs 18, 19, 20 and 21 appearing on page 12, 13 and 14 of the appendix, is that correct?

Mr. Sanford Jay Rosen: That is correct.

We also have of course page 18 of the appendix, the answers of the defendants.

Unknown Speaker: After in which 19 is submitted and 20 and 21 are denied.

Mr. Sanford Jay Rosen: 20 and 21 are denied.

That is all that we have.

That end the determination of the District Court that it felt it had a lie of controversy before it at the time and certainly in view of the decision of the Supreme Court of Ohio in the Beck case, it certainly feels like a lie of controversy.

The highest Court of Ohio said this is a viable operational statute.

The only other decision are in point of that particular statute also sustained it as a lie of viable statute, on that case is State ex rel. Beck versus Hummel, 59 N.E. 2d 238 as a Court of Appeals decision in Ohio.

But so far, as the record is concerned, you are quite right, Mr. Justice Stewart, as I have suggested, I do think that this does still present the case.

Unknown Speaker: Well, I gather you don’t prefer, you prefer not to sign a loyalty oath or to subject yourself to investigation.

That is because you don’t like it or would it be like, do you allege this is going to chill you in some way.

Mr. Sanford Jay Rosen: Yes, the allegation is that they would be a irreparable harm, that it will subject the plaintiff in this case to an investigation of whether they are engaged --

Unknown Speaker: How about the affidavit?

Mr. Sanford Jay Rosen: The affidavit itself puts them on record in terms of their political views and their political position.

None of the other loyalty of the case is required the actual presentation of the affidavit, the request for the affidavit itself is adequately chilling.

I beg your pardon?

Unknown Speaker: If I am not mistaken, the loyalty of the cases involved people who refused to sign a loyalty oath, didn’t they?

Mr. Sanford Jay Rosen: Yes.

Unknown Speaker: And there’s no such allegation here.

Mr. Sanford Jay Rosen: I think, I hope that the affidavit in support of motion for summary judgment will bear that out.

Secondly, even if not the statute is still before the Court, even assuming my clients worked to execute such an affidavit, the statutory machinery becomes engaged and that machinery does itself have the kind of chilling effect which they can complain about even after they filed the affidavit.

It still puts upon them the burden of going forward, the burden of ultimate proof and provides them with no procedural safeguards in terms of the investigation and fact finding determination.

Unknown Speaker: But surely, a person can’t just sit down when this law has been some through the code of laws of the state and final end, that he thinks it is unconstitutional and bring at our suit in attacking it, can he?

He has to show somewhere or another that he’s hurt by it.

Mr. Sanford Jay Rosen: But, I’ve just suggested one way in which he has been hurt and I don’t think that this is a case in which somebody has been trying to go through a code and find a law and hunted peck sort of like sorting strawberries.

This case has to be evaluated in context.

The Ohio Election Law has been in litigation for five years now.

This is running into the fifth year, this is the third case to come before the Supreme Court on its merits.

Unknown Speaker: But I don’t see what does has to do with --

Mr. Sanford Jay Rosen: When it’s particular pleading, I am trying to in effect formulate the context in which this suit would be actually --

Unknown Speaker: Well, I am not asking you about the context.

It is just these three paragraphs.

Mr. Sanford Jay Rosen: That’s right.

Unknown Speaker: The context to this claim, the three --

Mr. Sanford Jay Rosen: Yes, in that fact.

Unknown Speaker: Because whatever the affidavits may show?

Mr. Sanford Jay Rosen: Right, but I am trying to suggest that it was a complicated lawsuit that was being mounted and that a lot of the energy in terms of the pleadings may have been focused on some of the other provisions as well as upon this provision just as when we formulated our brief to this Court.

But unfortunately we spent some 15 or 16 pages dealing with the issues involved in this particular provision but we focused more on the other provisions that we were attacking as well as this provision and indeed the appellees were found themselves in precisely the same setting in an effort to keep the suit within manageable paper range.

Unknown Speaker: No one is making to file a piece of paper in the District Court the brief here, and then we go and limit to record to find out what the case is all about?

Mr. Sanford Jay Rosen: Well --

Unknown Speaker: Well, at least we have to go and file an affidavit, don’t we?

Mr. Sanford Jay Rosen: The affidavit in support of the motion for summary judgment?

Unknown Speaker: Well, then we had to look for that?

Mr. Sanford Jay Rosen: I would assume it is a yes.

Unknown Speaker: I will do it for you.[Laughter]

Mr. Sanford Jay Rosen: Thank you Your Honor.

Thank you very much.

Chief Justice Warren E. Burger: Thank you Mr. Rosen, thank you Mr. Guittar.

The case is submitted.

Featured:

Cole v. Richardson - Oral Argument

Thu, 23 Aug 2012 18:17:38 +0000

Case:

Cole v. Richardson

Media File:

70-14_19711116-argument.mp3

Related Transcript:

70-14_19711116-argument

Transcript:

Argument of Walter H. Mayo Iii

Chief Justice Warren E. Burger: We will hear arguments next in Cole against Richardson.

Mr. Mayo, you may proceed whenever you are ready.

Mr. Walter H. Mayo Iii: Mr. Chief Justice and may it please the Court.

This is a direct appeal from the decision of a three-judge District Court for the District of Massachusetts, declaring invalid on First and Fourteenth Amendment grounds, the oath required of all state, county and municipal employees in the Commonwealth of Massachusetts, but the facts are not in dispute.

Very briefly they are that the plaintiff was hired as a research sociologist at the Boston State Hospital.

She was on two occasions asked to take the oath required by the statute, and on both occasions she refused.

There upon, she was advised that she could no longer continue her employment at the hospital and the compensation could no longer be paid to her.

Several months later, plaintiff commenced her civil action in the District Court in which she sought a declaration as to the oath’s constitutionality and damages by way of back pay and for breach of contract.

The three-judge court received the stipulation of facts and her arguments of counsel and there upon entered a judgment and injunction declaring that the oath did violate the provisions of the First Amendment of the constitution, but they denied the plaintiff's claim for damages and back pay.

Both the plaintiffs and the defendants appealed to this Court in the 1969 term, and in response to the defendant’s appeal, the plaintiff maintains that that appeal was moot because of a particular job slot for which she had been hired at the Boston State Hospital had been filled subsequent to the District Court’s decision.

The defendants resisted this suggestion of mootness by filing an affidavit of the hospital superintendent, but nevertheless this Court vacated the judgment of the District Court and remanded to that court with directions to determine the question of mootness.

At the hearing on remand before the District Court, the three-judge court received an additional stipulation of facts, and heard oral evidence on the question of damages which it had advised that it would reconsider and at that hearing, the plaintiff retracted her suggestion of mootness which had been made earlier to this Court on the preceding appeal.

There upon, the three-judge court reinstated its judgment and injunction continuing to deny the plaintiff, a claim for damages and back pay.

Now, this time only, the defendant’s appeal, this Court has noted probable jurisdiction and we are therefore here on the narrow issue of whether or not the Commonwealth of Massachusetts may require all of its public employees an oath that they swear or affirm that they will uphold and defend the constitution of United States and of the Commonwealth of Massachusetts, and further they will oppose the overthrow of the government of the United States or of the Commonwealth by force, violence or any illegal or unconstitutional method.

Justice Harry A. Blackmun: Does the back pay issue filed to the case here?

Mr. Walter H. Mayo Iii: No, Mr. Justice.

Yes, it is Mr. Justice Blackmun, it is no longer in the case.

Justice Harry A. Blackmun: How do you characterize the District Court’s opinion here?

Is it based on the First Amendment grounds or on the Fifth and Fourteenth Amendment grounds?

Mr. Walter H. Mayo Iii: Well, the District Court did not mentioned the Fourteenth Amendment in its original opinion on the constitutionality issue and based it entirely on the First Amendment and I believe by virtue of the fact that the First Amendment is applicable to the states or the Fourteenth, we must also characterize it as being a First and Fourteenth Amendment question.

Justice Potter Stewart: You said that this is required to all employees.

The fact is that it is not required of all state employees because physicians or nurses in a hospital or other health care institutions, are not required to take such an oath if there (Inaudible).

Mr. Walter H. Mayo Iii: Yes, excuse me Mr. Justice Stewart, that is correct provision, exception is written in the statute.

Justice Potter Stewart: Yes, even if an Equal Protection argument, based on that exception?

Mr. Walter H. Mayo Iii: No, no equal protection argument.

Justice Potter Stewart: You do not?

Mr. Walter H. Mayo Iii: No.

Plaintiff’s challenge in the District Court was first to the entire oath and the District Court considered this challenge and found plaintiff’s analysis of the language of the first portion of the oath that one will uphold and defend the constitution of the United States and of the Commonwealth to be esoteric.

It said that they could not adopt that argument because any argument after that portion of the oath, had been foreclosed by this Court for carrying an affirmance in Knight versus Board of Regents.

As to the second portion of the oath, the District Court agreed to plaintiff in one respect.

It observed first that plaintiff’s argument, as to this point is equally esoteric, which if the Court would follow it, would make almost any sentence in the English language ambiguous.

However, the Court went on to find the phrase “oppose the overthrow” fairly vague because in the Court of Appeals, the word ‘oppose’ had at least two common meanings, and it therefore concluded the First Amendment was violated in this respect.

Although, the District Court did not suggest in its opinion just how plaintiff’s rights under that amendment were infringed.

Now, it is the defendant’s position in this Court that the oath survives all Constitutional tests.

First it is not void for vagueness and its provisions are easily understood and are intelligible and further even assuming for the purposes of argument that there are some ambiguities in the oath, but the oath is not thereby invalidated because its provisions do not affect or infringe any of the plaintiff’s First Amendment rights.

As to vagueness, we believe that the oath as a whole should be examined to determine what meaning is reasonably conveyed by it.

The oath should not be separated word by word and examined under microscope.

Justice Potter Stewart: Mr. Mayo, I did not demean in my question to ask you, if you are making that Equal Protection argument on that, do you understand that your brother on the other side makes one?

Mr. Walter H. Mayo Iii: No, I do not believe so Mr. Justice Stewart.

Viewing the oath as a whole, we think that it is a promissory oath of the constitutional support which requires action in the future.

The portion which requires “One to oppose the overthrow” as a corollary of the first portion which requires one to support and defend the Federal and State Constitutions.

But the support to Constitutions is at the same time to oppose the overthrow the constitutions.

The second portion therefore clarifies the first portion and delaying the employees' obligation under it and the second portion can also be said to test whether the first portion of the oath is taken without mental reservation or for purpose of the reservation.

Chief Justice Warren E. Burger: Let me ask you Mr. Mayo, under this oath as it is traced with reference to defending, a person could have a private belief, philosophical and political belief of communism and still conscientiously take this oath to defend against those to overthrow the government, could he not?

Mr. Walter H. Mayo Iii: That is correct Mr. Chief Justice.

Chief Justice Warren E. Burger: So in that part of the oath, it is not a case involving belief.

Is that correct?

Mr. Walter H. Mayo Iii: And we would maintain the second portion of the oath likewise.

There is no question to belief which entered into the determination on this point, but there is certainly no question with beliefs in the first portion of the oath.

Now, whatever maybe the contention is on the vagueness question, and even assuming those questions to be colorable as with Mr. Justice Harlan when the case was here on the prior appeal, we think that on the examination of the effect of the oath on First Amendment freedom dispels any doubt that any of the plaintiff’s freedoms under the First Amendment are infringed by the oath.

First of all, the oath is far different from those oaths which had been struck down by this Court in Baggett, and in Elfbrandt, and Cramp.

Now, the oaths in those cases required specific disclaimers of affiliation with so called subversive organizations, and the instant oath has no such thing.

In our view, it is a forward-looking promissory oath of constitutional support that does not require a statement of belief which is a crucial distinction between this case and the Connell case decided by this Court last term.

No statement as to one’s belief at the time he is asked to take the oath is required.

The oath does not describe freedom of association, for an employee is free to join whatever organizations or political parties he desires.

The oath does not prohibit membership in any organization or political party, nor does the oath infringe on anyone’s religious beliefs or associations.

For instance, if an employee is prohibited by reason of his religious group (Inaudible), he might qualify the oath in that regard and I might add that such a qualification was approved by the Attorney General of Massachusetts in 1967, in this respect.

In short, we think that none of the plaintiff’s First Amendment rights are infringed by this oath.

Now, plaintiff attacks in this case things and the names to be concentrated on very speculative and conjectural possibilities concerning speech and association in the event of a possible overthrow of the government.

Justice Potter Stewart: They declare to you that the phrase “by force, violence or by any illegal or unconstitutional method” modifies or overthrow rather than oppose.

As a matter of pure grammar, you can read this is the same as “he will oppose the overthrow and he will oppose it by force, violence or by any illegal or unconstitutional method?”

Mr. Walter H. Mayo Iii: No, I think Mr. Justice Stewart the language modifies the word “overthrow” and not the word “oppose.”

It is the “overthrow by force, violence or any illegal or unconstitutional method.”

Justice Potter Stewart: As a matter of grammar which you read it, it could be read the other way.

He has an obligation to oppose the overthrow by force, by violence or by any illegal or unconstitutional method, any way just to oppose the overthrow of the government?

Mr. Walter H. Mayo Iii: No, I could not agree, as the rule of grammar, that it would modify the word “oppose” because I do not think that an employee would use any illegal or unconstitutional method to oppose the overthrow.

I do not believe that would be permitted.

Now, the Commonwealth of Massachusetts does not believe that remote conjecture can suffice to invalidate the oath on constitutional grounds.

Now, what is required in this case to reach such a determination is a readily apparent constitutional infirmity.

In other words, it must be clear beyond third dementia that the oath will restrict the plaintiff’s First Amendment freedom and a precise identification of those freedoms must be made.

The Court must be able to say that the inhibiting effect on speech or association is real and not illusory and we submit that such an inhibiting effect cannot be gleaned from the extremely remote possibilities as to what plaintiff maybe required to say or do in the future.

Now, plaintiff goes on to argue that the due process clause invalidates the oath because it requires a summary dismissal without a hearing, cited in the Connell case decided in the last term.

Again, the crucial distinction between the two cases, is that Floyd which was considered by this Court in Connell contains the word “Believe,” I do not believe in the overthrow of the government.

And the opinion of this Court required Floyd to hold a hearing ascertaining suppose whether the beliefs are are firmly held prior to a final discharge of the employee.

In the case at bar there is no necessity for such a hearing because there is no factual inquiry to be made since the oath involves only promises of future action, a hearing in this regard would be meaningless.

Either a person takes the oath or he does not and such a determination can easily be reached without a hearing.

In this case, I would note, that the Court is confronted with a record that it is absolutely barren of any threat of prosecution to perjury or any hint that plaintiff would be discharged for a failure to live up to the terms of the oath, and in fact since the oath was enacted in 1949, no prosecutions have resulted and no public employee has been discharged for failure to perform his obligations under the oath, and therefore, we think that plaintiff is here as to the infringement of her First Amendment rights, under the circumstances are simply without foundation.

We think that the case can be succinctly summarized in the words of Mr. Justice Harlan who said when the case was here on the earlier appeal subscribing to the oath’s objectiveness to Mrs. Richardson to no more than an amenity.

The defendants would ask that the judgment of the District Court be vacated, this case be remanded for that Court, with direction to dismiss the complaint.

Chief Justice Warren E. Burger: Thank you Mr. Mayo.

Mr. Oleskey?

Argument of Stephen H. Oleskey

Mr. Stephen H. Oleskey: Mr. Chief Justice --

Chief Justice Warren E. Burger: Do you agree Mr. Oleskey with the response that Mr. Mayo gave to my hypothetical question, perhaps not hypothetical, that a person could be a philosophical believer in communism and yet take the oath, that he would conscientiously takes the oath that he would oppose the overthrow of the government by the force, violence and so forth?

Mr. Stephen H. Oleskey: Well, I am not sure that I do agree Mr. Chief Justice.

Chief Justice Warren E. Burger: You think he might not be a very conscientious communist, perhaps?

Mr. Stephen H. Oleskey: I think that is one possibility.

I thought originally the question was addressed to clause one of the oath, if in fact we are referring to clause two the “to oppose the overthrow,” I think clearly, it could be much more difficult not only for communist, but for anarchist or anyone else who believe under certain circumstances, that violent overthrow of the government ought to be brought about to take that portion of the oath in good conscience.

Chief Justice Warren E. Burger: Well, does that second part of the oath deal with belief per se or does it deal with the plaintiff with respect to future conduct?

Mr. Stephen H. Oleskey: There is no reference as there was in the Connell concededly to belief.

It is a straightforward promissory oath of future intent.

However, I would argue and do argue that --

Chief Justice Warren E. Burger: Future conduct, is it not rather than intent?

Mr. Stephen H. Oleskey: Well, the oath specifies “I will oppose” I would argue that that requires an affirmation of the time the oath has taken, the instance that the potential employee or is it just as someone about to take the witness stand in a trial will be required to swear to the truth of what he is about to say, that he intends from that time or forward, to act in conformity with the words which he repeated. Otherwise the oath cannot have any meaning.

Chief Justice Warren E. Burger: Do you see much distinction between the oath, the first part of the oath before the conjunctive and, and the oath that you took for example when you were admitted to the bar of this Court.

I think the language almost tracks (Voice Overlap) the oath here, it does not include State of Massachusetts of course?

Mr. Stephen H. Oleskey: I must confess with some slight embarrassment since I am appearing pro hac vice being three days short of eligibility for the admission of bar, the court, I have not yet taken that oath.

Chief Justice Warren E. Burger: Then I suppose that in terms of the oath that you will take three-days hence or thereafter, you heard the oath in this courtroom of course?

Mr. Stephen H. Oleskey: I have not Mr. Chief Justice, frankly.

Chief Justice Warren E. Burger: Well, I think it is essentially the same as the first part of the oath if you take out Massachusetts.

So moving to just the second, the second is really a conduct, it is a future conduct, is it not?

Mr. Stephen H. Oleskey: Well, I have tried to suggest that I feel it is more than conduct insofar as it does require, if the oath has to be taken, it has more than amenity and clearly there are those who like my brother Mr. Mayo feel that it is only an amenity, but if it is to me more than an amenity, it has got to comport with your belief at that time as to how you govern your future conduct and of course we just believe in that sense.

How could you, consistent with a belief in violent overthrow under some circumstances, take the oath part two as required by Massachusetts and I suggest that --

Chief Justice Warren E. Burger: Back on the same theory, I suppose that lawyers, I disagree with an opinion of a court and yet as the officers of the Court be bound to uphold it?

Mr. Stephen H. Oleskey: Yes, I agree that we are bound to uphold a court and a judicial system, but we are not required as this oath suggests on one interpretation to necessarily undertake arms or take any other action to physically or even verbally oppose the overthrow of the State or Federal Government which is what part two purports to say.

Of course, I have recognized that one of the difficulties here in talking about what part two does purport to require or say is that no one can really provide a satisfactory definition of that language.

Mr. Justice Stewart I think, had pointed a very basic grammatical problem which I would never have been able to resolve to my own satisfaction, which is whether or not the reference two “force, violence, illegal, unconstitutional method” modifies the words “oppose” or the word “overthrow.”

I think it is just one example of the vagueness found in the second portion of the oath, the more fundamental problem being exactly what do those illusive words “oppose the overthrow” mean and the very fact that the Commonwealth of Massachusetts in three years of arguments and again today before this Court is basically unable to offer a satisfactory example of what that language means I think suggests how very vague and illusive it is and therefore does bring it within the purview of such cases in Baggett and Bullitt and Cramp and Board of Public Instruction which were struck down similarly for vagueness.

I would like to respond, if I may, to the Commonwealth position that the appellees’ arguments with regard to First Amendment freedom is speculative and conjectural.

I think the Court, this Court has clearly faced that problem many times before.

Mr. Justice White addressed himself forcedly to that in Baggett and Bullitt, particularly at page 373 when he talked about the dangers of conduct which might be deterred by vague oaths, the control which such an oath gives a prosecutor who might wish to deter speech, association and the like.

I suggest that Mrs. Richardson or any other employee of the Commonwealth of Massachusetts in the 1970 census indicates that approximately 167,000 such employees who would have been exposed sometime during the period of their employment, to require them take this oath.

They have no real way to find out whether or not with these fears about First Amendment freedoms and prosecution for violation of the injunction of the oath or speculative or conjectural, except to go ahead and take the oath and take the risk, and that is exactly why this Court has quite properly struck down such oaths in the past.

The other alternative is of course the one that Mrs. Richardson, in this case, chose.

It has caused her to date a three-year wait since she was fired in November 1968, refusing to take the oath, but that is to refuse to take the oath at all.

Of course, in such cases as Wadmond and Updegraff and later cases, this Court had said that, however you style government employment, whether you consider it a benefit or privilege or what, you cannot justify either exclusion or punishment because of such an oath, where it is unduly vague or over broad.

Justice Byron R. White: How does it work?

It is perfectly clear here in the first part of the oath, the oath reads “to obey the oath,” you have purposely to speak out against “violent overthrow” that one have and secondly physically to oppose by an overthrow, suppose those things are stated there?

Mr. Stephen H. Oleskey: I agree that that would clarify, but I feel that it is equally unconstitutional, clearly following the line of such cases as Barnette and West Virginia Board of Education where it was said that consistent with those school children's beliefs in another duty, in another system, they could not be compelled to take the flag salute.

I do not think that Mrs. Richardson or any employee merely because she becomes an employee, is required to take physical action or to speak out.

Justice Byron R. White: Either one?

Mr. Stephen H. Oleskey: Either one.

Justice Potter Stewart: Well, that it is not your -- it is not the thrust of your argument Mr. Mayo that the vice of this oath lies in its vagueness, unconstitutional vagueness?

I thought it was.

Mr. Stephen H. Oleskey: Yes, it is, Your Honor, Mr. Justice Stewart.

Justice Potter Stewart: Then, I do not understand your answer to my brother White’s question?

Mr. Stephen H. Oleskey: My position essentially is this.

First it is so vague that neither Mrs. Richardson nor in fact the Commonwealth knows what is required, but what it would require --

Justice Byron R. White: But, it would not require anymore than one of those things or close to those two things, would it?

Mr. Stephen H. Oleskey: We would grant your question, Mr. Justice White and to say, alright, this is all the oath does mean.

Justice Byron R. White: What more could it mean in those two things?

Mr. Stephen H. Oleskey: I suggest the sliding scale of possibilities, for example.

Justice Byron R. White: (Inaudible) that is I mentioned would be one end of the scale and one on the other, is it not?

Mr. Stephen H. Oleskey: With a whole range and a host of possibilities in between.

Justice Byron R. White: (Voice Overlap) were a constitutional?

Mr. Stephen H. Oleskey: Were a constitutional?

I suggest that under this Court’s construction --

Justice Byron R. White: Do you argue those vagueness (Voice Overlap)?

Mr. Stephen H. Oleskey: I suggest that under this Court’s construction of the cases, none of those things could be required, but I say if the oath read as you have just suggested --

Justice Byron R. White: (Inaudible).

Mr. Stephen H. Oleskey: Well, in my reading of the cases, I think this Court has frequently talked about both of them as different sides of the same coin, that coin being basically First Amendment freedoms, particularly speech and association and the deterrence which very frequently results when an employee like Mrs. Richardson or anyone else is faced with necessity of taking such an oath.

Justice Byron R. White: Do you think “oppose” as declared in their report, I mean, is it anymore vague in the clause?

Mr. Stephen H. Oleskey: Well, the District Court suggested, as my brother Mayo has said, a range of meanings for “oppose” from actively oppose as to do something to merely refraining from some conduct themselves, to get on the different ends of the spectrum.

Justice Byron R. White: What about “support” though, in the first part?

Mr. Stephen H. Oleskey: Support is quite close.

In fact it is the same word that this Court approved in Connell and Higginbotham.

Justice Byron R. White: Well, why is that “oppose” anymore vague than “support” which is not constitutionally vague?

Mr. Stephen H. Oleskey: Well, the line of cases which include Connell and Higginbotham and before that Knight and Ohlson which were both procuring affirmances do not really discuss the question you have read and I admit it is a troubling and puzzling one.

I think that the only real and fair answer is that the constitution itself in Article 6, Section 3 has a general requirement in support of the constitution.

And I think, if in fact as Mr. Mayo appears to argue at one point in his brief, if the oath merely said “and I oppose the overthrow” it would be a tougher case, but it does not say, “I oppose the overthrow.”

It says, “I will oppose the overthrow.”

The key there I think being “will,” meaning that only Mrs. Richardson, perhaps on one construction, got to refrain from action herself or wonder in her-(Inaudible)

Justice Byron R. White: Mr. Oleskey, you said that (Inaudible) required to take an oath that “I oppose,” would that be contrary or not?

Mr. Stephen H. Oleskey: I think that “I oppose” would have the same constitutional defect of vagueness, but I suggest that it might be an easier case than “I will oppose” which requires a public employee in Massachusetts to assess somebody else’s conduct, not just his own, not just to govern his own conduct as “I support the constitution” does, but to go out and make a judgment.

Let us say as he passes the State House of the Boston Common during the day, he is a speaker urging violent revolution.

Is this overthrow of the government, am I required to do something, if so, what is it?

A whole host of possibilities are there.

I do not think any fair choice can be made by that employee consistent with the First Amendment.

Chief Justice Warren E. Burger: You are speaking now the second part?

Mr. Stephen H. Oleskey: Yes.

Chief Justice Warren E. Burger: After the oath?

Mr. Stephen H. Oleskey: Yes.

The problem with the whole oath is that the two parts, at least that the Attorney General argues and this is a plausible construction, do appear to be linked.

There is no indication, but they are particularly separable. I think for that reason, the District Court properly struck down the entire oath.

Chief Justice Warren E. Burger: I think, it is usually separable in this context when they are divided or separated by “and?”

Mr. Stephen H. Oleskey: Grammatically it is separable.

I think in its intent, particularly if the word “defend” in the first portion of the oath is linked with “oppose” in the second portion, they are not necessarily separable.

We are not favoring with any legislative history here by the Commonwealth of the Massachusetts to help us unfortunately.

And the Supreme Judicial Court, in its closet pronouncement, the Supreme Judicial Court of Massachusetts, several years ago suggested that in construing a Teacher’s Oath which was not too dissimilar, it would prefer to leave such ultimate constitutional questions interestingly enough to this Court rather than pronounce on the point itself.

Justice Thurgood Marshall: Mr. Oleskey, for the offset, I am against “the overthrow of the government.”

I am trying to use some plain English?

Mr. Stephen H. Oleskey: The entire oath or the second portion?

Justice Thurgood Marshall: After the “and,” “and that I am against the overthrow of the government” etcetera?

Mr. Stephen H. Oleskey: I think that would clearly conflict with belief Mr. Justice Marshall.

Justice Thurgood Marshall: Why?

Mr. Stephen H. Oleskey: Because the person might or might not in fact be against the overthrow consistent with decisions of this Court including the bar admission cases decided last term.

Justice Thurgood Marshall: As of this moment, which means that immediately I have not taken my oath, I might change my mind, does it not?

Mr. Stephen H. Oleskey: But, it does require and compel expression of belief as of that moment (Voice Overlap) which I do not think.

Justice Thurgood Marshall: That one moment.

Mr. Stephen H. Oleskey: Yes, which I do not think consistent with the First Amendment, it cannot be compelled.

Justice William J. Brennan: May I ask, if Mrs. Richardson were now asked to take the oath for stopping the word Massachusetts state violating the injunction which the District Court granted?

Mr. Stephen H. Oleskey: I believe that it would Mr. Justice Brennan because I believe that the injunction and the decision both go to the entire oath.

Justice William J. Brennan: What if the decision and the opinion seems to treat the two parts separately and indicate that the first part used in the authority in Knight is constitutional and that revises then the “I will oppose” part.

Of course, the injunction that was entered and the declaratory judgment was likewise that the whole oath is invalid, Section is invalid and the injunction is against a prohibition based upon her refusal to take the oath required by the Section, so that the Massachusetts will though say well, we would not ask you to take the oath required by the Section, but only an oath ending up with the word “Massachusetts.”

Do you still think that would violate the (Inaudible)?

Mr. Stephen H. Oleskey: I think it would, because of the specific language, first of all in the judgment injunction, that Section 14 of chapter 264 violates the First Amendment, not Section 14, Clause 2 of the oath.

Justice Byron R. White: What would Massachusetts will be enforcing would no longer be the oath required by Section 14, but a different oath?

Mr. Stephen H. Oleskey: If the legislature reenacted such an oath, it is conceivable that -- it is obvious that Mrs. Richardson could be again asked to do it.

Justice Byron R. White: I guess, what they are really saying is that the injunction is vague?

Chief Justice Warren E. Burger: Do you think there is any impediment to a court amending the oath?

Mr. Stephen H. Oleskey: I think first of all this oath as I suggested is not clearly severable.

Secondly there is no indication --

Justice William J. Brennan: You mean that, that is a matter of the Massachusetts legislature?

Mr. Stephen H. Oleskey: Yes.

Justice William J. Brennan: That said it was, and therefore, it cannot be treated as severable?

Mr. Stephen H. Oleskey: Yes.

I think the most proper course if you are going to sustain the judgment of the three-judge Court as I hope you would and the injunction would be again to affirm striking down the entire oath and let the legislature in Massachusetts do with this oath or any other oath what it chooses in light of the decision.

I think it should be made clear that the second portion of this oath which I suggest is tied firmly to the first portion is constitutionally defective.

I would like to make one more point with regard to freedom of association, which again my brother suggested, is speculative and conjectural.

I think clearly under the -- within the problems created by the part two of the oath, someone like Mrs. Richardson, any state employee in Massachusetts, might well wish to join any group even the so called fun group, which had stated purposes, something very innocent like preserving forest in Massachusetts, one of the other aims of this group could obviously be violent overthrow of the government and the decisions of this Court, as I understand them, Mrs. Richardson could not be convicted of attempting the violent overthrow of the government unless there was Skiyente (ph) precedent, unless she herself had the actual intent to overthrow the government.

But, I think in terms of part two of the oath, the “I will oppose” she could clearly be deemed in conflict by a prosecutor at anytime, notwithstanding what my brother says, the 20-year history of non-prosecution in Massachusetts.

The test is not I think lack of prosecution.

It is deterrence of the First Amendment conduct and I think that is the crucial issue here.

Justice Potter Stewart: That is quite, purely in personal terms.

It is not put at all in associational or membership terms, just as the first part of the oath is put, purely in personal terms and in the future tense?

Mr. Stephen H. Oleskey: I agree that it is personal and future, but I do not think that any bar through a prosecutor going out to Mrs. Richardson for violation of at least the second portion if she were found to be a member of a group like the one I suggested, which in fact had as one of its tenants, though she might be unaware of it, or although she might be a passive or inactive member or not even in favor of it as this Court suggested in United States and Noble (ph) decided several years ago, she can still be prosecuted.

There is an additional --

Justice Potter Stewart: But, you say there are some cases holding that?

Mr. Stephen H. Oleskey: I say that --

Justice Potter Stewart: What is your theory for that.

I think it seems to me quite more appealing from the words of this particular oath?

Mr. Stephen H. Oleskey: My proposition is only that, in terms of the words of the oath requiring a future promise of opposition.

Justice Potter Stewart: What she will do in the future?

Mr. Stephen H. Oleskey: Yes.

Justice Potter Stewart: She personally will do?

Mr. Stephen H. Oleskey: Yes.

A future association or even an association at the time she took the oath which was inconsistent because of some aim of that group which was in fact in favor of a violent overthrow of the government or by illegal unconstitutional methods.

A Massachusetts prosecutor could prosecute Mrs. Richardson under the oath.

I think that she would not, even though she might be sustained by this Court or some other Court, eventually she would not be in very effective position to argue as my brother has suggested that well, after all the oath is only an amenity, it did not mean very much, the state considers it only as an amenity.

So I do not really have an obligation to live up for the terms of that future promise.

If the oath, this oath or any other oath is going to mean anything in this country, then I think that has to be clear, not vague, not broad, and straight forward and this one is not.

Justice Potter Stewart: What do you suggest, what language would you suggest that might meet your standards of clarity and lack of vagueness and lack of broadness?

Mr. Stephen H. Oleskey: The only standards which it would appear to be consistent that this Court has said would be the language of the Connell Oath part one or the language required by the constitution support and uphold.

Justice Potter Stewart: This is “uphold and defend,” do you think those words have any more precise meaning than the word “oppose,” “Uphold and defend?”

Mr. Stephen H. Oleskey: I think that support --

Justice Potter Stewart: Well, that is not in this?

Mr. Stephen H. Oleskey: -- or uphold have come to be traditional words associated with the kind of minimal residual loyalty which we have decided under the constitution, in fact, in Article 6, Section 3 from the very beginning.

We have allowed the constitution to be exacted from public employees and public officers and the like.

Something beyond that, creates clearly under the decisions of this Court in the past, questions of unconstitutionality.

Justice Potter Stewart: But is this a matter of words?

Do you think the words uphold and defend or uphold or defend have more definitive and precise content than the word oppose?

Well, there are antonyms, but it is one more precise than the other?

Mr. Stephen H. Oleskey: I think that uphold or support which have been read by the Court below and by this Court I think is roughly synonymous, have this historical context.

What you are saying is, you believe in the system for which you are working under which you live.

Justice Potter Stewart: Well, that I thought you told us would be very, very constitutionally invalidated, if you are inquiring about somebody’s beliefs.

This is not doing that.

Mr. Stephen H. Oleskey: If the question were open to me for the first time today, I think I would make a strong argument that support and uphold certainly requires, some affirmation of belief.

However, I think this Court's recent pronouncements, including Connell and Higginbotham leave that question closed.

Justice Byron R. White: And that does not involve (Inaudible) “oppose” is a different word?

Mr. Stephen H. Oleskey: I think in terms of the future conduct, in terms of the number of variance of acquired conduct which the state itself has suggested in three years of this case, that “oppose” appears to be much more illusive for all of us than “support or uphold.”

Chief Justice Warren E. Burger: We will try another one on you then Mr. Oleskey.

What would you think of the oath that “I do solemnly swear that as an attorney and a counselor of this Court, I will conduct myself uprightly and according to law and that I will support the Constitution of the United States, do you think that is any less vague than --

Mr. Stephen H. Oleskey: At least the last part of that “That I will support the Constitution of the United States” clearly does not go any farther than the Connell language or the constitutional language which (Voice Overlap)

Chief Justice Warren E. Burger: The language “I will conduct myself uprightly.”

Mr. Stephen H. Oleskey: It seems to me that is a simple promise of conduct consistent with being an officer of the bar.

It does not necessarily go with ultimate philosophical or political beliefs about the utility of this Court or any other Court.

Chief Justice Warren E. Burger: Well, if this doctor -- your client were required to take that oath, would you have any trouble with it?(Voice Overlap)

Mr. Stephen H. Oleskey: I personally would take the oath.

I do not feel it is inconsistent with (Voice Overlap)

Chief Justice Warren E. Burger: (Inaudible) advise her that there was any difficulty about taking that oath “conduct yourself uprightly” as a physician, a surgeon or whatever she may be?

Mr. Stephen H. Oleskey: I do not think that is what it tells us.

I think that goes to your conduct in a particular profession, the rules of the game.

If Massachusetts were suggesting here that they are trying to regulate all employees because of some security sensitivity involved as the Federal Government and other state governments have argued in other cases, it would be a different situation, but there is no suggestion by the Commonwealth today.

I do not find any in this brief that such a broad oath across the board affecting all employees is necessary to security sensitivity or for the effective, orderly working of state government or any other compelling state interest.

Record that the Commonwealth has made seems to be peculiarly bare of any suggestion that the compelling state interest for this oath.

In fact, they suggested it is an amenity as I say, strange things that they require in that case.

Justice Harry A. Blackmun: Let me try another one on you.

What is your reaction to an oath to this effect “That I will to the best to my ability preserve, protect and defend the Constitution of the United States,” preserve, protect and defend?

Mr. Stephen H. Oleskey: Well, I think clearly, in light of our discussion in the last half-hour, that becomes a narrower case, particularly it would be use of the word “defend.”

I see vagueness, difficulty is there as I do in the word “defend” in Clause 1 of the Massachusetts oath.

Justice Harry A. Blackmun: You see vagueness difficulties.

Would it disturb you if I told you that I was reading from Article 2 of the Constitution?

Mr. Stephen H. Oleskey: I think I would elude now to my previous conversation with Mr. Justice White and say that there are certain oaths or general terms of support which had been with us since the beginning.

Justice Potter Stewart: And that certainly is not the only vague provision of the constitution, is it?

Mr. Stephen H. Oleskey: No, it is not.

Chief Justice Warren E. Burger: Justice Blackmun was reading the oath that the Constitution requires of President of the United States to take as you perhaps recognize?

Mr. Stephen H. Oleskey: I can only suggest again that in all honesty, the range of meanings of word “oppose” when set aside as it is here in Clause 2 and not linked by implication with “support and uphold” as in the Presidential oath that you read does create much greater difficulties both in terms of vagueness and in terms of broadness deterring both speech and association.

Justice Byron R. White: So, you are -- if it is just an oath that says “I will defend the Constitution,” you have no vague problems with that at this point?

Mr. Stephen H. Oleskey: I think an oath that says “I will defend the Constitution” is quite close to an oath that simply says “I will support the Constitution,” they are really the same.

Justice Byron R. White: And that you would find trouble if it said, “I will defend the Constitution of the United States against all enemies and against this overthrow by force and violence.”

Mr. Stephen H. Oleskey: Yes.

Justice Byron R. White: Then you have trouble with “defend”?

Mr. Stephen H. Oleskey: Yes, because I think then we have imported more language.

We have imported, as in this case, the government of Massachusetts, the United States government, force, violence, illegal, unconstitutional methods, all of which in the connection like the present one, meaning that someone like Mrs. Richardson, as I say, not only has to assess her own conduct, but has got to make an assessment of somebody else's conduct, and action and speech.

Justice Byron R. White: So really it is the context in which the word “defend” is used?

Mr. Stephen H. Oleskey: Yes, it can be and I think it is in this oath, although it is particularly the words “oppose the overthrow” with which we find fault in this oath, not the word “defend”.

Justice Harry A. Blackmun: You are not suggesting that the Article 2 oath became unconstitutional by the adoption of the First Amendment?

Mr. Stephen H. Oleskey: No, Your Honor.

Justice Harry A. Blackmun: Alright.

Mr. Stephen H. Oleskey: Very briefly, in making our brief, I would make today, two other arguments.

One I have I think touched on essentially the vagueness argument and the difficulty.

For example, in a situation where Mrs. Richardson or any other employees of the state, were to sit in by militants of the State House in Massachusetts or at the Federal Courthouse or the Federal Building in Boston which just happened frequently in the years passed.

Is this an attempted overthrow?

How does she know?

Is she required the act?

Is she required to go and get a policeman?

Just what is she supposed to do?

I think the vagueness problems are clear enough to need, I hope not for just the exposition.

Final point is that the statute violates due process as the Connell case construed in last term and that provides for no hearing for Mrs. Richardson or any other employee show, why she refuses to take the oath.

No opportunity to make a record to show that she is merely a, let us say a scrupulous conscientious woman who feels because the vagueness and overbreadth problem in this oath that she cannot in good conscious take it.

Justice Byron R. White: (Inaudible) in a three-judge Court?

Mr. Stephen H. Oleskey: The particular problem of --

Justice Byron R. White: No hearing?

Mr. Stephen H. Oleskey: No hearing.

I do not think it was, Your Honor.

Justice Potter Stewart: Is there a provision, either explicit or implicit, that under the statute for somebody who objects to take an oath generally to affirm rather than to take an oath?

Mr. Stephen H. Oleskey: The only provisions in the oath are those finally open it.

It does say in the first sentence, “I do solemnly swear or affirm.”

Justice Potter Stewart: Or affirm, so that is not an issue in the case?

Mr. Stephen H. Oleskey: No, it could be an affirmance rather than a swearing, nonetheless as I see it that double penalty under the Massachusetts statute, both for prosecuting for perjury which Section 14 explicitly refers to, and under Section 15 of the same Chapter 264 for violation of the terms of the oath, whatever that may be, still remain.

Thank you.

Chief Justice Warren E. Burger: Thank you. Mr. Mayo, do you have any comments?

Rebuttal of Walter H. Mayo Iii

Mr. Walter H. Mayo Iii: No, Mr. Chief Justice, I do not have rebuttal.

Chief Justice Warren E. Burger: Very well gentlemen, thank you.

The case is submitted.

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Connell v. Higginbotham - Oral Argument

Mon, 13 Jul 2009 19:01:12 +0000

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Connell v. Higginbotham

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Law Students Research Council v. Wadmond - Oral Argument

Thu, 23 Aug 2012 18:14:49 +0000

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Transcript:

Argument of Norman Dorsen

Chief Justice Warren E. Burger: We’ll hear arguments in Number 49, Law Students Civil Rights Council against Wadmond.

You may proceed whenever you’re ready Mr. Dorsen.

Mr. Norman Dorsen: Thank you very much.

Mr. Chief Justice, members of the Court.

This is a third in the succession of Bar admission cases that the Court has been hearing.

It’s an appeal from a decision of a three-judge court to the southern district of New York.

The suit in this case was an affirmative suit brought by three law students, three applicants to the Bar of the state of New York and three organizations, including a Law Students Civil Rights Research Council, challenging the constitutionality of certain statutes and statewide judicial rules governing the admission to the New York Bar.

In addition, the complaint made similar allegations concerning the implementation of the statutes and rules through questionnaires, affidavits, interviews and other practices I shall describe shortly.

A majority of the three-judge court below, Judges Friendly and Bonsal granted the appellants partial relief, but upheld its challenge statutes and statewide judicial rules.

Judge Constance Motley, in an extensive dissenting opinion, took the view that the principle portions of the majority opinion were erroneous and she would have broadly declare unconstitutional one New York statute on its face, and the other as applied.

It’s important for an understanding of this case to perceive the type of personal and political screening program that takes place in the State of New York.

The statutes and judicial rules that are relevant are set out in the appendix to the brief for appellants, starting on page 1a.

Section 90 of the New York judiciary law provides, “the admission to and removal from the practice by the appellate division takes place when the appellate division and the State Board of Law Examiners are satisfied that each person who passes the bar exam, possess the character and general fitness requisite for an attorney and counselor at law.”

Rule 81, immediately underneath Section 90 on page 3a of the appendix provides, this is an implementing rule that has the effect of a statute, “that each applicant to the bar must produce before a committee a character and fitness evidence that he possess the good moral character and general fitness requisite for an attorney.”

On the facing page, page 2a, is Rule 9406 which provides “that no person shall receive a certificate from any committee, any bar committee and no person shall be admitted to practice as an attorney unless he shall furnish satisfactory proof to the effect among other things that he believes in the form of the Government of the United States and is loyal to such Government” and there are three other requirements including citizenship and residence.

Now, these standards for admissions in the State of New York are implemented by a complex procedural mechanisms that delves deeply into the political and personal lives of each applicant.

I shall be more specific about this later.

It will suffice to say now that each applicant must answer extended questionnaires that raise questions regarding every aspect of his life.

Secondly, there are so-called home life affidavits which must be submitted to the bar committee by persons who know the applicant personally and have visited in his home.

Third, there are independent investigations that take place, including inquiries of the applicant’s school and draft board, his former employers and to police and other agencies, as well as the general public through publication in the New York law journal.

Finally, after all the information is reviewed by a committee member, a personal interview takes place.

If there is nothing unorthodox about an applicant, the interview will be perfunctory and admission will follow almost automatically.

But if there some unorthodox political activity or associations, there is an intensified investigation, new interviews, new questions and sometimes a delay in admission at personal and professional cost to the applicant.

All these takes place at a low level of visibility, but the effect on the constitutional rights of the applicant is destructive.

First, it involves an unwarranted intrusion broadly into their political and personal privacy and secondly, it inhibits the exercise of First Amendment rights by law students and applicants because of a fear of delay in admission.

All this is destructive to them, it’s also destructive to the national interest as I shall try to --

Justice John M. Harlan: Is this questionnaire used in all departments?

This is the second department.

Mr. Norman Dorsen: There are -- this case involves the second department and the first department, but there are questionnaires in all four departments.

Justice John M. Harlan: And of the same character?

Mr. Norman Dorsen: Very similar.

The three-judge court below unanimously agreed in an opinion by Judge Friendly that certain practices of the bar committees were invalid.

They held question 27(a), which ask applicants, “Do you believe in the principles of the form of the government of the United States to be impermissibly vague and overbroad?”

It held question 26 also invalid.

That question dealt and currently deals with membership in organizations advocating overthrow of the Government by force and violence.

Judge Friendly held that the question is at formally provided was invalid because it did not require knowledge by the applicant of the illegal purposes of the organization and there was no requirement that the illegal activity of the organization be coincident with the membership of the individual.

Finally, Judge Friendly held invalid question 31, which formally inquired whether there was any incident in your life, the life of the applicant, that was called for by the forgoing questions on the questionnaire, which has any favorable or detrimental bearing on your character or fitness and Judge Friendly held that this kind of soul-searching question was too broad and he struck it down.

At the same time, the defendants themselves deleted certain questions from their questionnaire and what Judge Motley termed the tacit confession of error.

These extremely broad questions, which are found on page 183 of the record, dealt broadly with membership in organizations and societies that the applicant may have joined before and during law school and extra curricular activities that he engaged in or may have engaged in while a student, but the majority below upheld the two relevant New York statutes and the implementing questions.

We have many objections, both to the statutes and the questions and the implementing procedures, but they boil down to two principle points.

The first point is that Section 9 -- Rule 9406, which is on 2a of the appendix, and the implementing question, question 27, are invalid because they compel a declaration of belief and are impermissibly vague.

Second, that Section 90 of the judiciary law, the good moral character standard, which incidentally we do not dispute on its face because we accept Judge, Justice Frankfurter’s for this formulation of the good moral character standard as Mr. Boudin stated yesterday from the Schware case.

But we do maintain that Section 90 has been invalidly applied because it’s been used to test the political ideas of the applicants that are protected by the First Amendment, both because of the invalidity of the revised question 26, which is found in page 6a of the appendix and because of the impermissibly broad pattern of investigation into protected activity that the bar committees undertake.

Now, before turning to my first point, I would like very briefly to make four preliminary comments that are central to an understanding of our position.

The first concerns the deterrent effect on a political activity of students.

I have seen this for 10 years at New York University law school.

This is not an imagination, this is not a product of anyone’s imagination, it is not a chimerical allegation.

There are students who are deterred from political activity.

There are professors who tell students not to engage in political activity until they’re members of the Bar.

Some of the most responsible students, some of the best students are deterred from lawful political activity.

Many of these students and the families of these students have gone to great extent to put them through law school, even a delay of a few months in earning a living is relevant to the prospects of their families and their own prospects.

The two cases that are cited in the brief, the cases of Messrs Rosenberg and Kaimowitz are examples of people who have been delayed by the character committee for engaging an undoubted political activity.

Secondly, nothing that is being urged here in any sense is inconsistent with the ability of the bar and the courts to discipline improper conduct of applicants or members of the Bar.

Mr. Boudin has reviewed four different types of sanctions that are available and I shall not repeat them, but I will deal with one other aspect.

Every one of us is concern by violence, everyone of us is concern by disruption in courtrooms.

In my experience, the bar associations of this country are able to respond to this problem in a constitutional manner.

The ABA has setup a special committee under Judge Murray and who’s a member of the District Court in the First Circuit, to set standards for behavior by judges, by lawyers, by spectators and by defendants.

That committee has already issued a preliminary report.

The bar association of the City of New York has setup a special committee with men like Bruce Bromley, Best Webster, George Lindsey and Burk Marshall on the committee to look into the same matter.

I have the privilege of being the Executive Director of that study.

The bar association has not been delinquent.

The bar associations of this country are able to deal with conduct that is impermissible, conduct that deserves the sanction of either the Bar or the Court.

But this is not conduct we’re dealing with here, it’s the delving into protected political activity.

Third, none of the criticisms of the statute, none of the criticisms of the questions, none of the criticisms of the practices that we’re making here are meant in a slightest to impute a good faith, the integrity of the members of the bar committees, the members of the Courts of New York or any other State.

These men are operating under a system that was handed to them.

They are doing their very best to implement that system, but it’s a system that was setup without full consciousness of the First Amendment problems that are raised.

I want to repeat, we’re not criticizing individuals, we’re not suggesting that there’s a certain venality or arbitrariness on the part of particular people or committees.

But the fact of the matter is a structure has been setup that’s improper and it should be dealt with.

Justice Potter Stewart: Does the record show the history of these questions to which you deal?

Mr. Norman Dorsen: The record shows the history --

Justice Potter Stewart: Other than when the structure was setup and why?

Mr. Norman Dorsen: The history shows -- the record shows the previous questions that were asked and the present questions.

The New York’s system was setup in 1921.

It traces back to 1921 -- questions of this time --

Justice Potter Stewart: That is a whole of character --

Mr. Norman Dorsen: But this kind of investigation.

Justice Potter Stewart: But this -- the record doesn’t show the particularized history of these particular questions?

Mr. Norman Dorsen: It does not.

It does not Mr. Justice.

The final preliminary point I would like to make is there’s no need for this Court to overrule the Konigsberg and estoppel cases to deal with the invalid statutes and practices here.

The question in the Konigsberg was a different kind of question from the question that is being asked of the applicants in New York.

The foundation for the question as Mr. Justice Harlan pointed out in both opinions in those cases had been laid and the committee was trying to fill in gaps.

There are no gaps here, there is no foundation here.

We’re dealing here with questions that are being asked of every single applicant to the New York Bar.

The entire generation of lawyers, they are going to have deal with the problems that all of us are dealing with at the present time.

And finally, Konigsberg and estoppel are distinguishable of course, because the governing constitutional principles that have evolve -- have been evolved by this Court have changed in last decade.

It’s exactly decades as the Konigsberg case was argued in this Court.

Now, what I would like to do is deal with the first principle point that I alluded to earlier, namely Rule 9406, which is found at page 2a of the appendix.

And here we have a rule which is of statewide applicability and has the force of the statute that whatever the doubts may have been in the Arizona case that Mr. Justice White raised, this is a belief question.

It is clear that each person who wants to be a member of the Bar must furnish satisfactory proof to the effect that he believes in the form of the Government of the United States and is loyal to that Government.

And there are many expressions by members of this Court.

Mr. Justice Robert’s memorable quote was referred to yesterday by Mr. Justice Black.

Mr. Justice Jackson on another occasion expressed what seems to me the most cogent terms, the reasons why belief is absolutely inviolable.

Justice John M. Harlan: You think that the oath that you heard these applicants who are admitted and are barred today thought to have raised these questions (Inaudible)?

Mr. Norman Dorsen: No I did not.

The constitutional oath that was raised in the Knight case, it was affirmed pre curiam by this Court, we have to objection to at all, but this is not that case.

This deals with belief and as Mr. Justice Jackson said, “I know of no situation in which a citizen may incur a civil or criminal liability or disability because a Court infers an evil mental state where no act at all has occurred.

Attempts of the Court to fathom modern political meditations would be as futile and mischievous as the efforts of the infamous Heresy trials of old that fathomed religious beliefs.

Chief Justice Warren E. Burger: Do you think Mr. Dorsen, in response to that question if the applicants strongly oppose to the present provisions of the Constitution for the electoral system of selecting President that his affirmative answer that he did believe them while entertaining that reservation about the electoral college would -- well I’ll ask what consequence would that produce in your view?

Mr. Norman Dorsen: That -- I think that’s a very, very basic question and our second objection to this standard is that’s impermissibly vague.

It talks about the form of the Government, a form of the Government of the United States.

Does this mean the electoral system?

Does this mean the capitalist system?

Does this mean the federal system?

The Center for Democratic Studies under Mr. Hudson (ph) has recently proposed a new Constitution, which would divide the country into regions, which would give different powers to the Supreme Court.

That would certainly change our form of Government.

Does an applicant to be in a position where he has to guess if he has unorthodox political views as to what the form of Government of United States really is or what a judge or jury might consider it to be and Judge Friendly dealt with this point.

He said that it was wrong and improper to inquire of an applicant as to whether he was loyal to the principles underlying the form of Government.

He did not explain why the same objections did not apply to the slightly shorter formulation, but it seems to me indistinguishable formulation, a form of Government of the United States.

And Judge Motley in her dissent raised this very question, and as far as I know there’s nothing in Judge Friendly’s opinion which satisfactory deals with this issue for the very reason suggested by the Chief Justice.

Now, the State says that Section 9406 is really like the constitutional oath that Mr. Justice Harlan raised in connection with the members of the Bar who just admitted that one will support the Constitution of the United States.

But that’s not what this says.

That’s just not what it says.

There’s no warrant to revise this formulation in light of what would be a constitutional formulation especially is this true in light of question 27, which implements this section and says among other things, “Can you conscientiously and do you affirm that you are, without any mental reservation loyal to and ready to support the Constitution of the United States?”

Now, the “without any mental reservation” clause is certainly a belief clause.

Mental reservation -- a man may have a question about the bicameral system, about one man one vote, about whether or not in this modern age we need Regional Government rather than State Government.

Now, this section or this Rule 9406, the implementing question are invalid for a wholly distinct reason and that is under Speiser and Randall, it impermissibly places the burden of proof on the applicant.

Judge Motley said on her opinion that this was the very heart of the case and the reason Judge Motley thought this was the very heart of the case is spelled out fully in Justice Brennan’s opinion in the Speiser case.

And that is that the hazard of mistaken fact finding is so great and a potential loss to the applicant and the law student is so great that he will steer far wider of the unlawful zone if he has the burden of proof.

Now in its brief, the State attempts to avoid the thrust of Speiser without even mentioning the case by saying that there’s a distinction between coming forward with evidence, the burden of initial coming forward on the one hand and the burden of ultimate proof on the other.

It seems to us that this is an inadequate answer.

In the first place the language of Rule 9406 says explicitly that the applicant must furnish satisfactory proof.

The burden of proof is built in to the section.

Secondly, the practical implementation of this section in New York as both the Kaimowitz and the Rosenberg cases which are cited incidentally on page 10 of the brief in opposition to the motion to affirm show that the way the mechanism works and very naturally works is that when there’s a question about an applicant, as the gentleman from Ohio said a moment ago, more questions are asked until the Bar Committee is satisfied.

And of course, under Section 90, at the top of page 3a of the Appendix, it says that the State Board of Law Examiners must be satisfied.

Now, that’s burden of proof language and I might add that despite what New York says here, in the Konigsberg opinion itself at 366 US, page 41 in the footnote, Mr. Justice Harlan lists New York State as among the states where the burden of proof is on the applicant.

So, it seems to us that apart from the defects that are inherent in the rule and the implementing question, the burden of proof problems that are raised by Speiser and Randall are all together supportive of our concern.

Justice John M. Harlan: Have you got any figures as you can see the papers that goes with this as to how many applicants to the Bar have been denied admission since this questionnaire (Inaudible)?

Mr. Norman Dorsen: The one case which deals with this is the Cassidy case which is cited in the brief and is unclear whether that person was denied admission because of a political matter or because of a deception that he played upon the committee.

The fact of the matter is that there were very few people who were denied admission to the Bar on political grounds, but that in no way it seems to me Mr. Justice Harlan --

Justice John M. Harlan: Are there any that you could --

Mr. Norman Dorsen: Well the Cassidy case was the one that would come within it.

But there are many cases -- there are many cases that we know of after a personal knowledge and a couple of them are decided, where there is a delay where people are prejudiced, where people’s careers are hurt not only because of the delay in getting a job, not only because of a delay of earning money but because of the notoriety, because of the unfortunate public publicity.

Justice John M. Harlan: Do you go as far as Mr. Boudin does to press the argument when he said that he’d like to see (Inaudible) that there should be no character committee examination?

Mr. Norman Dorsen: I do not believe there should be a character committee investigation that deals with advocacy or membership, or belief.

I believe that certain actions by an applicant maybe relevant certain unlawful actions or certain improper actions of a man that have been convicted of embezzlement from somebody or robbed a bank, or engaged in unlawful activity, I believe that’s a perfectly proper subject for the committee to delve into.

Justice Potter Stewart: How about Fifth Amendment?

Mr. Norman Dorsen: This case of course does not present that issue.

Justice Potter Stewart: Do you have any trouble with the Fifth Amendment -- asking a man if he’d ever robbed a bank?

Mr. Norman Dorsen: I think you’ll be entitled to raise that.

Chief Justice Warren E. Burger: Do you think then that the consequence should be that the Board can stop at that point?

If he takes the Fifth Amendment on whether he’s ever embezzled money from a principal when he acted as agent?

Suppose the question were that specific?

Mr. Norman Dorsen: I think that the Board would then be entitled to make its own independent investigation.

And I might say in the case that Mr. Justice Stewart and the Chief Justice are now putting, the particular objection that Mr. Boudin raised to the Fifth Amendment would be inapplicable because it wouldn’t be a case where the Fifth Amendment would be closely related to first amendment concerns.

And therefore the Fifth Amendment problem would not be as great in the first instance and in the second instance the committee certainly would be able to follow that up.

And I see no problem about considering that as relevant -- not the privilege against Fifth Amendment, but the unlawful activity of the individual should be considered relevant to admission to the Bar.

But I do not see why, I do not see why protected political activity, protected speech and certainly beliefs should be included within the ambit of relevant consideration, a permissible consideration by Bar and let me say that one of the chief reasons --

Justice Hugo L. Black: You mean by that that you think it would be all wrong to ask “Do you believe in committing a murder?

Mr. Norman Dorsen: Yes.

Justice Hugo L. Black: Do you have any of them asked that one yet?

Mr. Norman Dorsen: I have never heard that particular question asked.

But there are -- the questions that might be asked are questions concerning possible crimes.

Justice Hugo L. Black: Well now, you draw a distinction do you not between asking if they’ve been convicted and asking if they have committed robbery?

Mr. Norman Dorsen: That’s right.

If a man has been convicted that’s a matter of public record and that’s not incriminating.

I do draw that distinction.

Justice John M. Harlan: How would you say about a committee asking whether applicants of the Bar believed in courtroom disruption?

Mr. Norman Dorsen: I would say that’s an impermissible question.

Justice John M. Harlan: Impermissible question.

Mr. Norman Dorsen: Impermissible question.

I am against courtroom disruption, I believe all of us are against courtroom disruption.

When people engage in courtroom disruption they should be punished if it’s appropriate to do so by the proper bodies.

But this -- and I’d like to quote here from what Judge -- Justice Treanor said, “When an inquiry begins into advocacy” he said, “it’s a greedy camel and it does not easily take its lead.”

This is a very, very slippery slope to use the law school phrase, we begin asking belief about one thing, we begin asking belief about another thing and there’s no point I can see where a logical line can be drawn if once this line of questioning is opened up.

Justice John M. Harlan: Really, really what you are saying to make it concrete is, you can’t keep a man out of the bar unless you can show he has committed a crime?

Mr. Norman Dorsen: I wouldn’t go that far.

I wouldn’t go quite that far.

I would stop showing to that he’s committed activity which if a man had for example consistently broken up a courtroom and disrupted a courtroom and had never been convicted of it --

Justice John M. Harlan: Well, he wouldn’t get into a courtroom before he is admitted (Inaudible).

Mr. Norman Dorsen: No, I mean as an spectator, for example, as a law student.

If he’d engaged in activity that was -- that the committee properly found was inconsistent, irrelevant to being a lawyer, I wouldn’t go quite as far as you suggested Mr. Justice Harlan.

Chief Justice Warren E. Burger: But you might have that question up very sharply if a man were seeking admission having been admitted in another State where he tried cases and used disruption as a tactic of advocacy has been found in contempt and so forth.

Mr. Norman Dorsen: Quite right.

Chief Justice Warren E. Burger: Would you consider that a proper inquiry?

Mr. Norman Dorsen: Yes, I think I would.

Chief Justice Warren E. Burger: Then wouldn’t you think it’s alright to ask, “Have you ever been found in contempt or subject to any disciplinary proceeding or inquiry concerning that?”

Mr. Norman Dorsen: Yes, absolutely, Your Honor.

There’s one other point I would like to make.

Even more generally than the -- turning now to Section 90 in the implementing question 26, which I won’t deal with specifically, except to say that this question which Judge Friendly found invalid in his opinion is still invalid because it does not qualify membership by requiring active membership and it does not require, as the Scales case requires and it does not qualify advocacy by the standards of the Yates case namely advocacy to do something or the Brandenburg case to incite somebody as Brandenburg could.

Justice John M. Harlan: Those were all criminal cases?

Mr. Norman Dorsen: Those were all criminal cases, that’s correct.

But those are the standards that this Court set down as the standards for deterring speech and association.

Now more generally, more generally even Section 90 is invalid as applied because of the entire mechanism that operates that enables committees to roam at large over people’s belief.

In the Rosenberg case which I’ve mentioned earlier, it was discovered that Rosenberg had taken place in an anti-Vietnam War march.

And a committee member asked him during the investigation, “Why are you against the war in Vietnam?”

That’s a matter of public record.

The Kaimowitz case in which the applicant had engaged in a strike was also asked, “Why did you strike?

What was your reason for doing so?”

This is a bad business when questions of these kind --

Justice Hugo L. Black: Well, neither of those cases of before us though are they?

Mr. Norman Dorsen: That’s correct.

Justice Hugo L. Black: But they were disbarred on those questions?

Mr. Norman Dorsen: They were delayed, their admission was delayed and the specific point I would like to come to in closing is, that nobody should be delayed.

That nobody should be delayed, nobody should be prejudiced because delay, while not a serious as exclusion is also economic and personal prejudice until there’s a specific finding of probable cause by the committee based upon conduct -- based upon conduct in noting moral (Inaudible).

Justice John M. Harlan: Then I go back to something that I understand you were saying at the beginning.

I understood you to say that the effect of this very complicated questionnaire was really to suppress political beliefs, what’s proof of that?

Mr. Norman Dorsen: The proof of that is --

Justice John M. Harlan: Or what proof does the record show?

Mr. Norman Dorsen: The record only shows these two cases, the cases of Rosenberg and Kaimowitz.

But in many First Amendment cases there was -- let me put it in another way.

These questions inquire into protected political activity, as well as belief.

The natural effect of those questions is going to deter activity and as I stated at the outset I have seen it with my own eyes.

I have seen people --

Justice John M. Harlan: Well, I know what you’re -- after all it’s not in the record either. One can imagine those things don’t question your sincerity for the (Inaudible) but still we’re dealing with restriction and broad restriction you’re asking (Inaudible) long traditional system in New York and other places.

Mr. Norman Dorsen: Well, that’s correct that we’re asking that --

Justice John M. Harlan: Therefore, I would suppose if there’s some proof beyond the chilling effect?

Mr. Norman Dorsen: Well, the kind f proof we have is the kind of proof for example that the Court held satisfactory in Baggett and Bullitt and several of the oath cases.

The natural effect of questions of this kind which in many cases Cramp, Keyishian, Baggett, Elfbrandt are all cases where people -- where oaths were struck down based upon the same consideration.

Justice John M. Harlan: Would it be possible, would it be trustful, can you refer to a standing, any compilation that we could get to see how many people, since this questionnaire was introduced, have been refused admission on the basis of their character.

Mr. Norman Dorsen: The most extensive notes on this subject, which contained whatever documentation is available or in the Columbia survey on human rights and in the New York University Intramural Law Review, but the record does not contain the kind of evidence and the answer is that is the answer I think I’ve given, namely that in cases like Elfbrandt, Baggett, and the others, the chilling effect or the inhibiting effect was perceived and it’s here, and in my submission to this Court, I think it also should be perceived here.

Chief Justice Warren E. Burger: You’re suggesting really that we judicially notice that as a fact, even though it is not demonstrated in the record?

Mr. Norman Dorsen: I don’t state it as a fact.

I stated it as the basis of the precedence of this Court in both the belief and speech areas that dealt with virtually the same situation.

I am not asking the Court to deviate at all from the precedent that has been developed over the past decade and more.

Justice Hugo L. Black: The question was asked, I believe by my brother Harlan to somewhat this long practice, how long has it been questions of this kind were asked?

Mr. Norman Dorsen: In New York State, my understanding is perhaps Mr. Peck will -- Judge Peck will correct me, I think it goes back to the early 1920s, questions of this general character.

Justice Hugo L. Black: Well, not as elaborate.

Mr. Norman Dorsen: Not as elaborate as this --

Justice Hugo L. Black: What were they directed at then, what was the expected --?

Mr. Norman Dorsen: Well, after the First World War, as we know, there was a similar concern about Reds or the Attorney General Mitchell Palmer.

Justice Hugo L. Black: Did they ask him -- did they at that time asked about Reds?

Whether they were Reds? [Voice Overlap]

Mr. Norman Dorsen: I could not -- I could not answer that Mr. Justice Black.

Chief Justice Warren E. Burger: Thank you Mr. Dorsen.

Judge Peck, you may proceed whenever you’re ready.

Argument of David W. Peck

Mr. David W. Peck: Mr. Chief Justice, may it please the Court.

I’m not sure that it’s been made clear what the requirements of law and the questions are at the present time.

Mr. Dorsen has sort of gone around about what used to be questions, what was changed at one time or another, and what the Court changed.

I think it should be said that the appellate divisions of the State of New York in the first and second department have been extremely sensitive and conscientious, indeed on their own about these requirements.

As has been indicated there is a long history about these questions and requirements and originally they go back a good many years.

And nobody raised any questions about them.

But before these cases were started, the courts on their own, became concerned about historical record and whether it was up-to-date and modern.

And they went through the requirements and the questions and made substantial changes in them.

Then these proceedings were started and with the matters of complaint here, they looked at them again and made some other changes, before the matter ever got into Court.

And finally, as the third stage, the courts have had the benefit of the statutory court’s review of the procedures and it’s holding as to what was proper and what was improper.

So that what you have now is what I’m going to confine myself to.

I just like to say, preliminarily to that that my friend has said many times here, which there’s no support whatever in this record.

There is nothing to suggest that these committees roam at large over people’s beliefs, not when iota of a suggestion of anything of the kind.

They talk about what -- in their brief, about what happened in Rosenberg and Kaimowitz, there’s nothing in the record about it.

Suffice it to say, both Rosenberg and Kaimowitz which were admitted to the Bar and Mr. Cohen from Attorney General’s office tells me that he has personally gone over the records of the admissions and the first and second department and that no one ever has been refused admission to the Bar at the State of New York on so called “political grounds.”

Now --

Justice Hugo L. Black: That would be a pretty odd thing to state, wouldn’t it?

No one ever has been -- [Voice Overlap]

Mr. David W. Peck: I can only tell you that Mr. Cohen tells me that he is personally examined the records and states that to be a fact.

I wouldn’t think [Voice Overlap].

Justice Hugo L. Black: There was no touch of politics and any other?

No touch of inquiry into belief?

Mr. David W. Peck: Well, this is -- about exclusion, not having been admitted upon those grounds.

I don’t purport to say that he has gone through the record of every question that was asked by a character committee member, but he says that no one has been excluded on political grounds.

Justice Hugo L. Black: You mean expelled from the bar?

Mr. David W. Peck: No, the denied admission.

Justice Hugo L. Black: How many of you had?

Mr. David W. Peck: How many of we had Mr. --

Unknown Speaker: About 1500 a year, who are admitted without question?

Justice Hugo L. Black: I still think it might be pretty odd statement.

Justice Potter Stewart: How many are denied admission on any ground?

Mr. David W. Peck: Could you answer that Mr.--

Unknown Speaker: Probably less than 5 on average, per year.

Justice Potter Stewart: Per year.

And if nobody has every been excluded on the basis of the answers to these questions, what’s point of asking these questions?

Mr. David W. Peck: Well, that is a good question, I suppose, but I would say that the answer is that these are things that you should certainly know the questions as they exist today, things that you should certainly know, in my opinion, about an applicant for member of the bar.

To my thinking, I think it is fundamental, as to whether a man believes in the Constitution of the United States and is prepared to take an oath to uphold it.

I think without being facetious in anyway, Your Honor, it’s the same matter as to whether it’s the formality or reality for the members of the class here this morning, to take the oath.

We know that it’s done everywhere so far as I know for a public officer, for a judge, and a member of the Bar, who is an officer of the Court, I assume starts in this country, as distinguished from some other places in being willing to support the Constitution of the United States and I that it is fair, basic inquiry at the outset of a man as to whether he can conscientiously take that oath and whether he does take it in good faith.

Justice Hugo L. Black: I don’t think there’s anything into the question that we ask any of these members of the Bar that would begin to compare for the broad, expansive questions asked and the question now in the consideration, is it?

I don’t think we had it --

Mr. David W. Peck: Well, let me divide this into two respects, Mr. Justice.

There are really two requirements here, one that a man have of the moral qualifications to be a member of the Bar and the other is whether he can support the Constitution of the United States.

As far as the general moral character is concerned, I think that what the requirements are in the State of New York are no different in substance and the more simple form in this Court, where you call upon two members of this Bar to state that they believe a candidate has the qualifications, which according to the rules of this Court means that he appears to have good character.

Chief Justice Warren E. Burger: But we don’t make any inquiry in this Court, but we rely on state admission, do we not?

Mr. David W. Peck: That’s right, you do not make any inquiry, but you have laid down that as a requisite when a member of this Bar stands before this Court and makes the motion, he is representing that as far as he knows and he believes that this a candidate who has those character -- has that that character.

Justice John M. Harlan: A one man character committee?

Mr. David W. Peck: I think as Chief Justice has said Mr. Justice, this Court of course, has to rely upon the admissions machinery in the states.

But still, I think it is important that this Court has laid down the requisite that a man appeared to have good character, you are interested in.

You are concerned about it.

You do recognize that it is an essential to being a lawyer and should be an essential for admission to this Bar, which I submit recognizes the permissibility of that realm of inquiry at the State level.

Now, what does that inquiry consist of as far as good moral character is concerned? It consists simply of one thing in Rule 8 of the Rules of the New York Court of Appeals for Admission of Attorneys.

It says proof of moral character.

It says every applicant must produce evidence, not about a burden of proof, but be that as it may, must produce evidence that he possesses the good moral character and general fitness, requisite for an attorney and counselor at law, which must be shown by the affidavits of two reputable persons.

Justice Hugo L. Black: I don’t believe that's under attack here, isn't it?

Mr. David W. Peck: I’m not sure your --

Justice Hugo L. Black: I doubt if it’s --

Mr. David W. Peck: It’s under attack in their --

Justice Hugo L. Black: I doubt if there’s a member of this Court that would disagree with you Judge --

Mr. David W. Peck: Thank you.

Justice Hugo L. Black: -- that a necessity of good moral character.

Of course, people would disagree on what good moral character is.

Mr. David W. Peck: The objective is made specifically, I heard from my friend make the objection, to a so-called Home Life Affidavit, which he has somewhat overstated, that the two affiance, are expected to report upon the home life of the applicant, nothing of the kind.

All they are asked is in what ways do they know the applicant, merely professionally or personally and the question is asked, have they visited his home?

Nothing about what they found when ans and if they did visit.

Now --

Justice John M. Harlan: I think Judge Peck, that as far as the rulings of Judge Friendly on the specific questions that he held were improper, you’re not quarreling with those rulings?

Mr. David W. Peck: We’ve changed it.

We’ve done exactly what the Court said.

Now, we come to the question --

Justice Hugo L. Black: May I ask you of this statement, this application here, can you see it in this record, it does contain --

Mr. David W. Peck: Could you tell me what page it is --

Justice Hugo L. Black: It’s page -- right next to page 52.

Is that the one?

Mr. David W. Peck: That’s of the old questionnaire, Mr. Justice.

Justice Hugo L. Black: Is it the questionnaire now?

Mr. David W. Peck: No.

Justice Hugo L. Black: Is it the one we have up before?

Mr. David W. Peck: No.

Justice Hugo L. Black: Why was it put in here?

Mr. David W. Peck: Well, they put in their record here the whole history of this thing.

Justice Hugo L. Black: The history of it?

Mr. David W. Peck: Yes.

Justice Hugo L. Black: So, this is an older.

How many -- where is the present questionnaire?

Mr. David W. Peck: I think just one -- I’m informed that pages 121 and 139.

Justice Hugo L. Black: That’s the one that they’re attacking?

Mr. David W. Peck: No, the present questionnaire.

Justice Hugo L. Black: There are some here that seem to go pretty far up here, I would think?

Mr. David W. Peck: 125, Mr. Justice.

Justice Hugo L. Black: 125.

Mr. David W. Peck: 125.

Now, on the matter of the so-called political activity, which is very narrow indeed, if you want to call it, political activity.

There is the provision of Rule 9406, which if it were standing alone and without any interpretation or implementation would bother me.

Rule 9406 says that a person shall not be admitted, unless he shall furnish satisfactory proof that believes in the form of Government of the United States and is loyal to such Government.

Now, I suppose you can indulge your imagination and say that the form of Government means a bicameral legislature and the electoral college, although of course, we all know that if any applicant said that if he believes in abolishing the electoral college and believes in the unicameral legislature, nobody would ever ask him a second question, let alone be disturbed in the slightest by his answers.

Justice John M. Harlan: I suppose the oath that we take, you probably took it at one stage, that we support -- to support the Constitution of the United States by member reservation purpose of evasion might have the same fairness?

Mr. David W. Peck: That I think it well might, as Judge Friendly says you have to have some generality of language.

You can't pick words always with an exact precision that covers precisely what you want and can't conceivably cover something else.

But as Judge Friendly pointed out, you have to look at this in the way that it has been interpreted and applied by the courts.

And, there is no question at all that’s addressed to an applicant about his beliefs in anything.

If the Court will look at pages 5 and 6 of our brief, Your Honors will find the questions which are asked and there are four of them.

The first, all of which are aimed at testing whether a man can conscientiously take the common oath of supporting the Constitution.

Section 26 (a) says, “Have you ever organized or help organized, have been member of an organization, which you knew, you knew was advocating or teaching the overthrow of the Government by force or by certain unlawful means.”

And that if your answer is in the affirmative, this is 26 (b), “did you, during that period have the specific intent to further the aims of such organization to overthrow or overturn the Government by unlawful means?”

I can't see any that any exception can be taken to those questions and if exception could be taken, I submit that Konigsberg has settled it.

And while Mr. Dorsen says that he has not asking for any overruling of Konigsberg, the brief submitted by his clients, make it perfectly clear that that’s exactly what they’re asking for, an overruling of Konigsberg.

Justice Hugo L. Black: Judge Peck.

Mr. David W. Peck: Yes, Your Honor.

Justice Hugo L. Black: Now, you get down to a question that has little more significance than some of the others, but suppose a man had sworn that he didn’t belong to any organization which believed in the overthrow, indict him for perjury, then would the issue in that case be whether or not that organization was advocating the overthrow of the Government and who would have the burden of proof on it?

Mr. David W. Peck: Well, certainly the prosecution would have the burden that the organization advocated that, that he knew it.

Justice Hugo L. Black: But who would it prove it to?

Mr. David W. Peck: That he knew it.

Justice Hugo L. Black: It Might have a million members.

Well, how would you prove that he advocated it, put that issue to the jury in a man’s trial for perjury, what should be doing is to try the McCarthy line cases in a man’s charge against perjury against him.

Mr. David W. Peck: I can imagine how you might, it might be difficult, but I suppose that you might produce members of the organization, who testified as to its nature, and testified to conversations that they had with this man when they asked him to belong to the organization and that they advised him, that they believed in the overthrow of the Government by force and he said, “That’s right, that’s exactly what I believe in,” and that’s why --

Justice Hugo L. Black: And that would be the issue to be tried on a perjury case?

Mr. David W. Peck: Could be, it could be.

Justice Hugo L. Black: Get right back into the old McCarthy days?

Mr. David W. Peck: Most respectfully Mr. Justice, I really don’t think so.

Justice Hugo L. Black: But, it certainly is a step in that direction, is it not?

Mr. David W. Peck: I wouldn’t say that.

Justice Hugo L. Black: Raising the same question that he was raising and of course, it wouldn’t be difficult to prove that some of the things that might have to prove to convict him with perjury.

If they showed by six witnesses that some of them said that was the purpose they understood the organization was organized for, then he would have to overcome that wouldn’t he, by evidence?

Mr. David W. Peck: Well, I don’t think so.

Justice Hugo L. Black: You don’t?

Mr. David W. Peck: I’ve said that the prosecution would certainly have to go on and show by evidence --

Justice Hugo L. Black: Where’s they showed it?

Mr. David W. Peck: -- beyond the reasonable doubt that he knew perfectly well when he joined this organization, what its precepts were, that he subscribed to them willingly and that when he answered the questions on the questionnaire that he wasn’t forgetful -- [Voice Overlap] deliberately deceitful.

Justice Hugo L. Black: Suppose he had a foreign name and he was tried by jury, they prove by six or seven witnesses that they had told him, what you said they had.

Now how difficult might it be for him to show to the jury that he hadn’t, that they were wrong?

Why does the Bar Associations have to get mixed up and involved in all of that issue and simply determine good character of a human being who wants to be lawyer, which ought to be done?

Mr. David W. Peck: Well, I think it depends upon the embrace of the word good character and whether or not it includes an ability and a willingness to take an oath to support the Constitution, generally in these cases --

Justice Hugo L. Black: But, I haven’t object -- I haven’t asked you about that.

I took oath, I’m glad of it.

I want to do it, on both sides.

Mr. David W. Peck: I think Mr. Justice, if you start with the premise that the oath maybe required, I think it follows that a committee investigating into a qualifications of a candidate for admission to the Bar are entitled to make an appropriate inquiries to ascertain whether or not this man can conscientiously take that oath and when he takes it will mean it.

Justice Hugo L. Black: Well, why should they -- why should in order to show that after subject him to the possibility of a trial for perjury on issues involving the advocacy of a big organization?

How could he involve -- escape having to defend himself on that if someone happen to be after him?

Mr. David W. Peck: He might say, “I don’t know about an organization.”

Justice Hugo L. Black: He might say I have none.

Mr. David W. Peck: He might -- No, but the question is first that he was member --

Justice Hugo L. Black: Have you belong to an organization that advocates --

Mr. David W. Peck: Which you knew, oh, no --

Justice Hugo L. Black: Alright, which knew advocates.

So, they subject him to a trial for perjury on that issue about an organization, as to whether it believed in overthrowing the Government.

Mr. David W. Peck: And he knew it.

Justice Hugo L. Black: Yes, and he knew it, we’ll take them both, take them both, get him on the right environment, with the right jury, in the right locality, with the right prosecutors, and with the right judges.

Mr. David W. Peck: And maybe should be convicted of perjury, --

Chief Justice Warren E. Burger: I suppose Judge Peck it’s true that anytime a man has six witnesses against him, testifying to a fact in a criminal case, he’s got serious problem, doesn’t he?

Mr. David W. Peck: Yes sir, he has problems.

Justice Hugo L. Black: He has more serious ones, when it’s on an issue that a subject to the sharpest political divisions, and while the organization are talking about are some that the vast majority of the people are vigorously against, does he not?

Mr. David W. Peck: We’re trying all the time, Mr. Justice, cases which are in a sensitive area and where a defendant sometimes think they are not apt to get a fair trial, yet.

Justice Hugo L. Black: And they provide for changes of venue and everything.

Mr. David W. Peck: And they provide for changes of venue, but that sometime --

Justice Hugo L. Black: Some of these you couldn’t provide for changes that you hold very easily.

Mr. David W. Peck: Oh, I would think you might get a change of venue if you made a showing that the --

Justice Hugo L. Black: Why would you get into?

Mr. David W. Peck: -- the atmosphere, some other jurisdiction, where they --

Justice Hugo L. Black: Which one are you going to get, when there's a lot of talking about Reds and the communists?

You would expect to have a community that was looking too sharply if they had somebody to say that man had done something to help them.

Mr. David W. Peck: I can only say very respectfully Mr. Justice that I don’t feel that the dangers here are any different from the dangers in the good many cases, where defendants feel justly or unjustly that they have difficulties in coping with the nature of the case as before the Court, but we have to try them, we do the best we can and notwithstanding --

Justice Hugo L. Black: But you don’t have to make certain things a crime, with reference to what a man believes or what organizations he belong to and what they believed and advocated?

Mr. David W. Peck: May I repeat that there is no question here which asks a man’s belief about anything.

The questions are, “Have you been a member of this organization knowing and --

Justice Hugo L. Black: And, and --

Mr. David W. Peck: -- and that you have the specific intent?"

Justice Hugo L. Black: Have you been a member of this organization and an organization which advocated to overthrow the Government?

Mr. David W. Peck: And did you know it?

Justice Hugo L. Black: As you know that there are very, very many people who refuse any political party in this country of being on one side or the other of that issue.

I presume that they would have to deny belonging to the party, political party.

To be safe --

Mr. David W. Peck: I don’t really think they have that problem.

Plus the specific intent and then, I’ll just close by reference on page six of our brief to questions 27 and 28, I mean 27 (a) and 27 (b), which are merely inquiry, “Is there any reason why you cannot take and subscribe to an oath or affirmation that you will support the Constitution of the United States?

If there is please explain, (b) Can you conscientiously and do you affirm what you are without any mental reservation just as the oath taken by a member of this Court loyal to and ready to support the Constitution of the United States?”

It’s my respectful submission that the appellate divisions of the Supreme Court of the State of New York have very conscientiously, with the aid of the District Court here limited these provisions, these requirements, and these questions to what is entirely proper.

Thank you.

Justice Hugo L. Black: May I ask you just one other question?

Mr. David W. Peck: Yes sir, Mr. Justice.

Justice Hugo L. Black: To get ground to the root of the matter?

Do you believe the Bar ought to have a right to deny a man admission, because he’s been a member of the Communist Party, that’s the issue really?

Mr. David W. Peck: No, I don’t think that’s the issue and I would answer that question Mr. Justice by saying that I don’t think that a man should be denied admission merely because he is at one time or another, been a member of the Communist Party --

Justice Hugo L. Black: Or he was a member at the time he applied?

Mr. David W. Peck: No, I wouldn't think that alone properly would be sufficient.

I think it is perfectly clearly indicated here Mr. Justice what the line is and that is belonging to the organization, knowing that it believes in the overthrow of the Government by violence and that the applicant has the specific intent.

Justice Hugo L. Black: Applicant?

Mr. David W. Peck: Yes --

Justice Hugo L. Black: The applicant?

Mr. David W. Peck: The applicant for admission to the Bar has this specific intent to have the Government overthrown by force.

Justice Hugo L. Black: Well now, that’s quite different to the question, I asked you that the applicant has it?

Mr. David W. Peck: Well, that’s how I understood the question Mr. Justice.

Chief Justice Warren E. Burger: Thank you Judge Peck, I believe your time is up.

Does Mr. Dorsen have anymore time?

Rebuttal of Norman Dorsen

Mr. Norman Dorsen: No, Your Honor.

Chief Justice Warren E. Burger: No.

Thank you Mr. Dorsen, thank you Judge Peck.

The case is submitted.

Featured:

In re Stolar - Oral Argument

Thu, 23 Aug 2012 18:11:03 +0000

Case:

In re Stolar

Media File:

18_19691209-argument.mp3

Related Transcript:

18_19691209-argument

Transcript:

Argument of Leonard B. Boudin

Chief Justice Warren E. Burger: Number 75, the application of Martin Robert Stolar.

Mr. Boudin, you may proceed whenever you're ready.

Mr. Leonard B. Boudin: Mr. Chief Justice and may I please the Court, this is a petition seeking review of an order of the Ohio Supreme Court denying the petitioner the right to take the Bar examination there which is a condition to admission to the Bar.

The petitioner was denied that right because of his refusal to answer three questions, a refusal based upon both First Amendment and Fifth Amendment grounds.

Those questions appear at the bottom of page five and the top of page six of the petitioner's brief. Question 12 (g), “States whether you have been or presently are a member of any organization which advocates the overthrow of the Government of the United States by force.

If your answer to any section of the above question is yes, set forth the facts in detail.”

Question 13, these are on two questionnaires says, “List the names and addresses of all club, societies or organizations of which you are have been a member.”

And question seven at the top of page six says, “List the names and addresses of all club, societies or organizations of which you are or have been a member since registering as a law student.”

I should say that the petitioner had been admitted to the New York Bar were then in Ohio working for a branch of the office in the economic opportunity and had applied for admission to the Ohio Bar.

Justice Potter Stewart: Or what he applied for was a permission to take the examination --

Mr. Leonard B. Boudin: Precisely, Your Honor.

Justice Potter Stewart: Quite right.

If he had been a member of the Ohio Bar for a certain number of years he could have been admitted on motion I think, is that still true?

Mr. Leonard B. Boudin: Now, when he appeared before -- when he got this question he declined to answer those questions on the application form on the ground of what he said was the Fifth Amendment and all of us have assumed that that meant for that stage privilege against self incrimination.

Subsequently, in meetings with the character committee members, he indicated that he was also relying upon the First Amendment and that he regarded the questions that were put as not pertinent to it's qualifications as a member of the Bar -- to be a member of the Bar. and when the character committee or the members of the committee eventually wrote their reports, they prayed very strongly the impression that this young man had made on them in their interrogation and one of them said that if the rest if the committee would not the mind the fact he hasn't answered these questions I would have recommend it as admission.

But the committee decided not to recommend his admission -- that is his admission to the examination.

And at that stage while the matter was appearing, was before the Ohio Supreme Court he retained counsel.

And counsel wrote to the Ohio Supreme Court, pointing out that the petitioner had raised First and Fifth Amendment grounds and that a recent decision of Judge Friendly in what we call the LSCRRC case, the Law Students Civil Rights Council case now pending in this Court at 696 and the recent decision by a statutory court headed by Judge Friendly questions of this very type were found by the statutory court to be improper and to impinge upon First Amendment rights and I will develop shortly the respects in which Judge Friendly found questions to this kind to be improper.

And the counsel suggested the desirability of appearing before the Ohio Supreme Court arguing the matter instead of the Supreme Court upheld the committee and to then order appearing at page 56A of the appendix denying the application of Mr. Stolar to appear before the Bar -- to take the examinations.

Now, we -- as I indicated before I am reasonably satisfied to the extent that the council could ever be could prevail in this Court on the grounds indicated by Judge Friendly and in the LSCRRC case and I will turn to those when I address myself specifically to the questions put by Ohio to Mr. Stolar.

We think, however, that there are more important problems, more fundamental problems relating to the entire question of political qualifications if I may use that term for the moment, to admission to the Bar.

And it's for that reason our first point, in our submission is that political belief and political association and political advocacy of any kind are not proper conditions or grounds for this qualification to admission to the practice of law.

As I say I realize the burden that I'm faced in presenting that proposition in the light of several cases in the Court for the assumptions underlining those cases but I want to address myself to that before I begin my argument on the second and third point which are that the test and the questions and the procedures followed by Ohio in this particular case violates the rule of precision which has been set down by this Court in a large series of cases in the last five or 10 years where the First Amendment rights may be impinged upon.

And my third argument is going to be very brief and that will relate to the right to assert the privilege against self-incrimination and answer the questions put by a character committee.

All three --

Chief Justice Warren E. Burger: Do you link those two propositions together in any way?

Mr. Leonard B. Boudin: I think these are completely independent, Your Honor.

The last two.

Chief Justice Warren E. Burger: The last two.

Mr. Leonard B. Boudin: The last two are completely independent.

Chief Justice Warren E. Burger: They're not suggesting the assertion of the privilege against the questions directed to inquiry about the Communist Party.

Mr. Leonard B. Boudin: I am suggesting that too and I will come to that at the last page as I am suggesting the right to assert privilege there.

I want to suggest very briefly because we have elaborated on our brief and that we'll require a -- we hope a reconsideration by the Court of some of the assumptions in Konigsberg and Anastaplo despite the fact that they effectuate distinguished by the element of the question of Communist Party membership which one reason or another has been regarded as sui generis in this Court.

I want to turn to the first proposition which is that it seems to us that those -- that a political test and I may suggest even out conduct which is unlawful, although, obviously we don't have to go that far here, is not related at the proper functions of the Bar.

Now, yesterday it as suggested by some members of the Court that the fact that some political activities might be protected against criminal prosecutions.

Mr. Justice Stewart, I think made a point deciding when Brandenburg against Ohio was mentioned does not necessarily mean that the persons engaging in those activities protected against criminal prosecutions are proper to admissions to the Bar and I wish to suggest that a reading of Keyishian and of Elfbrandt and Robel and Schneider against Smith which we have cited and quoted from in our brief suggest the contrary that those cases emphasized a point and in dealing with what we think with all due respect at least a sensitive and more sensitive occupations and membership of the Bar, namely work in a defense plant, work as a teacher with the young, work on in a merchant marine and in all of those cases the Court has said that these are constitutionally protected activities and the constitutionally protected activities cannot be a ground for disqualification from employment. Now, our submission here and I don't think it has been fully argued obviously on this argument I can't argue with fully either is that the profession of the law is a profession where these standards are less applicable for the following reasons.

First, it is a lawyer is of course not an employee of the State and whatever power the State has over its employees should not be applied to the lawyer and we think to the aspirant lawyer.

The second is it is difficult to conceive precisely what function it is as a lawyer that would be adversely affected by a political viewpoint or to go with political activity.

It seems to us that there is a difference between the questions of a good private character, to go back to ex parte Garland phrase which we quoted in our brief and the question of a bad public character -- a question of a public character which is involved in the questions of conception of whether or not the State should be overthrown by force and violence to take the extreme situation.

In other words, the history of life in this country and in the world generally had shown that the most honorable persons have had conceptions and that sometimes attempted to carry up those conceptions into action.

In the political field, without in the slightest way reflecting upon their good character except when they have failed, I suppose, and without if there being any suggestion of the question of moral servitude and I think back specifically to the case of ex parte Garland where is through the Court based its decision on under the rubrics or on the principles of Bill of Attainder and of ex post facto law and yet in that case and in Cummings against Ohio we were dealing with the most serious of political crime.

We were dealing with matters described I think by Mr. Justice Miller's dissent as reasonable activities by Mr. Garland who, after engaging in the fight against the union on behalf of them sedulously, was admitted Bar here or retained his membership for the Bar, I should say and eventually became the Attorney General of the United States.

Now, In short --

Justice Byron R. White: At all permissible for a committee to ask an applicant to -- if he advocates assassination to right social wrongs?

Mr. Leonard B. Boudin: Well, I think --

I think, when we get to an extreme question of assassination Your Honor it's always one of those extreme problems that are very hard to answer.

Justice Byron R. White: Well then, make it more general, make it more general, do you advocate the general use of violence, violent means to achieve social and economic ends.

Mr. Leonard B. Boudin: I think the answer is, my answer would be consistent with point of view, I suggest that the committee could not ask that kind of question.

Justice Byron R. White: That is a wholly relevant to the --

Mr. Leonard B. Boudin: I think it is relevant, irrelevant to the practice of law.

Justice Byron R. White: You mean if the advocacy of violence, I suppose, you would say then that it would be wrong to ask the person, “Are you now engage in violent activities to rights or for wrongs?”

Mr. Leonard B. Boudin: I would consider that too, but of course we're really dealing here at the moment with three kinds of things, belief, association and advocacy --

Justice Byron R. White: How about my last question?

Mr. Leonard B. Boudin: I would even feel that as far as conduct is concerned that would be an improper question.

Justice Byron R. White: And certainly -- and certainly a fortiori just advocacy of violence.

Mr. Leonard B. Boudin: That is quite right Your Honor.

Now I will say that there is a -- in other words, I regard those as matters which may reflect upon the which -- matters which should be handled where we reach the point of danger to the community.

Handling the ordinary matters of due process by criminal trial I don't regard those as bearing upon the functioning of the lawyer as a lawyer in the process.

I think this is a very different situation for the policeman who was given a gun.

This is a question for the yesterday I think also and whom one would expect because he is given a gun to have a responsibility with respect to the use of the gun.

But I think that there must be a distinction between the function of a lawyer and his private capacity and the lawyer and his function as a lawyer.

Justice Byron R. White: (Inaudible).

Mr. Leonard B. Boudin: Well, I think --

Justice Byron R. White: (Inaudible)

Mr. Leonard B. Boudin: Well, the difficulty is that I am going to answer your questions directly, I hope, but the difficulty is Mr. Justice that we really are not dealing in reality in this field if we analyze the last 20 years with the questions of anarchism or the question of actual violence, we are really dealing --

Justice Byron R. White: Well, I am just trying to (Inaudible)

Mr. Leonard B. Boudin: Well, I would say that even question would respect violence.

If one is talking about advocacy of violence, I'm not talking about conduct yet. Conduct I think if it reaches a point where it's punishable, where it's outside the First Amendment protection and most conduct is of course, then it would be punishable.

Justice Byron R. White: (Inaudible)

Mr. Leonard B. Boudin: Well, that would come in to the question of what a lawyer would advice a client.

I think we're moving into a different area.

I was dealing with a lawyer as a citizen and as I was about to say -- it is very high as I say to hit the extreme situation.

I think we have to recognize that what we are dealing with here, we're dealing with this whole question of membership in organizations having political philosophies because that's what these questions are dealing with.

We really aren't dealing with the extreme situation of conduct.

Justice Byron R. White: (Inaudible)

Mr. Leonard B. Boudin: Well, I think -- I think it's a closer question when we get to the overlapping and to the conduct but I really think that all of these questions Your Honor, if we're talking within the framework of the reality, are questions that are concerned with membership with organizations which have particular political points of view.

We are really never coming down to the question -- nobody ever asked, you are or did you engage in violence, the kind of question put by Your Honor.

But we're always dealing with is, “Are you a member of an organization which has for its purpose, which has the literature behind it advocating the overthrow of the Government by force and violence?”

Because I think your question is a very difficult one when I get down to the question of the actual conduct.

Chief Justice Warren E. Burger: Did I get the impression Mr. Boudin that you thought some of these types of questions might be appropriate to ask a candidate for the police force but not appropriate for the lawyer?

Mr. Leonard B. Boudin: Yes, I do think so Your Honor because then I thought that he had a particular responsibility and a particular danger and that it was his job to enforce the law.

Chief Justice Warren E. Burger: Then you would -- it seems to follow the map that you place the policeman's responsibility on a higher or lower plane.

Mr. Leonard B. Boudin: No, just different that is that the policeman has to do the law enforcement and I consider the lawyer as a matter of fact very often a boardwalk between his client and the Government in reality.

In reality, there's no point am I giving Your Honor the headspring of this thing.

I think it's a difference of function, not one that is higher or lower but I would like because I recognize the difficulty of -- part of this argument, we move to the point suggested by Mr. Justice White pertaining to the particular questions here so as the question here I think clearly for under what this Court has called the rule of precision in the First Amendment cases and clearly are in conflict with the decision of the statutory court which while we have felt that it has not gone so far enough as witnessed by jurisdictional statement in the LSCRRC case we agree with the dissenting opinion of Judge Motley the dissenting occurring opinion are nevertheless one that would call the Court's attention to this particular case.

The questions that we have in this case questions two and three those dealing with all organizations are questions which the Court has really held improper in Shelton against Tucker.

It held that they go so far as to discourage all political associations.

Political association that is completely legitimate.

And Judge Friendly pointed out Your Honors will see in the appendix in this case Judge Friendly pointed out that the New York Court, I think Mr. Justice Harlan probably was aware of that same questions that was put earlier had withdrawn such question with respect to membership at all organizations and at withdrawing them because of what Judge Friendly said the awareness of the need to bring them in line with developing concepts of First Amendment rights and he referred specifically to Shelton against Tucker and Schneider against Smith.

Now, question number one the question relating to membership in an organization advocating the overthrow of the Government has defects that I think were recognized in some of the questions here and that Judge Friendly pointed out, they omit the absence of knowledge concerning the purposes of the organization, they omit the absence of congruence that is membership at the same time that the organization had these purposes.

In addition to the two points made by Judge Friendly, which resulted in New York changing its question to import, to include these two elements.

We suggest that the elements involved in Brandenburg against Ohio was suggested by that namely a specific intent to advance the purposes of the organization with which one and which one is a member are elements that also should be called for in a question of this kind.

And our concern of course is the fact --

Justice John M. Harlan: Am I not right in taking that Judge Friendly upheld the question and so far as the absence of any aspect of knowledge with respect to the Communist Party -- do you upheld that question?

Mr. Leonard B. Boudin: The question of the Communist Party was not involved in the New York questionnaire specifically.

And as I say, this Court had made its decision which we would hope it would reconsider on Communist Party.

Justice John M. Harlan: -- sustains that kind of a question.

Mr. Leonard B. Boudin: It does now --

Justice John M. Harlan: The question there is whether with the passage of time and so forth the element you are arguing before this Court held unnecessarily there is something ought to be (Inaudible).

Mr. Leonard B. Boudin: Exactly, I am also suggesting one more thing Your Honor with respect to Communist Party questions which of course is not the question put here, it's a communist party question is a much more pointed question I'm suggesting that Your Honors' decision Mr. Justice Harlan in opinion and Barenblatt and the opinion in Gibson and perhaps the sound reasons because we are in the First Amendment area now, would indicate that perhaps even assuming that the Communist Party membership question can ever be put and this in the Court we're willing to reconsider whether it should be put.

That kind of a question should not be put in the absence of a foundation, some reason to believe that there's of course can make that particularly inquiry of an individual.

Of course, Your Honor stated that view in reference, in dealing with the question of a draft of that inquiry in Barenblatt in a different context.

But we're suggesting that the deterrent affect upon association here is one which would require that if even that question could be put it should be put --

Justice John M. Harlan: You're taking out an awful great suite of constitutional baggage here that you don't need to prevail in this case.

Mr. Leonard B. Boudin: I must admit that I think that my case could won very easily on the basis of --

Justice John M. Harlan: Well, I thought you are arguing your lawsuit.

Mr. Leonard B. Boudin: Well, because I think that the public problem is quite important and I know that this Court could say not only with the case that I'm bringing here but with the general impact upon membership at the Bar.

And my concern is that the large amount of activities which the Court knows young law students are engaging in today activities in the south, activities with the poor, activities with minority groups, a panoply of activities are going to be discouraged and undiscouraged if questions this kind are submitted to be put.

Justice Byron R. White: You really think that?

Mr. Leonard B. Boudin: I really do think so, Your Honor.

When I argued this matter before the statutory court these Judge Bonsal raised a question. He sounded skeptical also but I may say that if Your Honor will see the array of the opinion in LSCRRC.

The Court eventually recognize that what I have said what the reality thought was we who stand here you who stand there are not as close to these young law students who are engaged in worked in vengeance and even I who have been involved with so many of these cases in the last decade are now regarded as old had as conservatives.

Chief Justice Warren E. Burger: Well, what is the work in the prominent program or the office of economic opportunity got to do with organizations advocating the overthrow of the Government by force and violence?

Mr. Leonard B. Boudin: Well I think one of the -- because Your Honor the distinction is the people who worked among the poor or who works among minority groups are also in fighting against authority I'm using the word fighting at a general sense.

They are regarded as dissidents, they regarded as radicals and if I can suggest Your Honor well I have forgotten to mention here, Your Honor will notice in our briefs what happened when Mr. Stolar appeared before the committee and what the committee said to him.

They're not after having gone through this and the applicant's waiting to answer these generalized question of the fact of nature, Your Honors will see on page six of my brief that the committee pressed him into specific questions and answers and that eventually he answered that he had -- and these are the words from the committee “that he is not now and has never been a member of the Communist Party or any socialist party or of the students for a democratic society and that he has signed the standards of the United States preinduction army oath with respect to a list of organizations on the Attorney General's list.”

In other words, the people who are engaged in work generally and who are members of the student organization after another are met by this kind of specific inquiry under Ohio's program and what reason is there that they should be asked, that a student should be asked whether he is a member of any socialist party.

All of these arises as I say in the context of Ohio's program and all of these is bound to discourage young men from joining organizations, from joining student groups and what we are doing ultimately is we are letting the decisions to be made in these things as they must be made I suppose by character committees who makes for into First Amendment protected activities here and who live in a milieu which is so different from the young men who are in the law schools today and I have talked that recently in the law schools I have been amazed in the different quality of the laws students that exist today than those who existed even 10 years ago.

And these students should not be discouraged by questions that are of this kind and that are put by Ohio as to whether they are members of The Students for a Democratic Society assuming there is such a single organization today.

They should not be discouraged by asking whether they are members of a Socialist Party.

All of these arises and arises in the context, Your Honors will know, that nobody has made any determination such as the Court suggested in a different context that I think applicable here in Joint Anti-fascist against McGrath, a determination that an organization is an organization which one should not belong to.

It gives a freewheeling suite to the committees to make this inquiry.

Now, with respect to the Communist Party although I have suggested that ought to be, should be reconsidered by the Court, the Court has pointed out repeatedly legislative findings, legislative hearings, judicial hearings and so forth.

But with respect to matters other than the Communist Party, then it certainly seems to me that somebody must have a hearing to determine whether an organization is on a particular, should be on a list.

If list had to be permitted before we are to give committee the right to ask questions concerning that.

And of course, when we ask questions concerning any organization you're even going beyond what the Court did at Schneider against Smith when they talked about 250 organizations and are referred to the concurring opinion in that case of Mr. Justice Fortes and Mr. Justice Stewart.

Chief Justice Warren E. Burger: Were these, just one question, Mr. Boudin, if I may. Were these questions formulated by the Supreme Court of Ohio or by the Ohio State Bar Association's Committee or by the Columbus Bar Association?

Mr. Leonard B. Boudin: I do not know, perhaps the Ohio can say. As far as we know that these are the forms used and I suspect --

Chief Justice Warren E. Burger: State wide?

Mr. Leonard B. Boudin: By the states, I suspect used by the character committees in many states in the last 15 to 20 years not before, this is something new.

Chief Justice Warren E. Burger: Mr. Macklin, you may proceed whenever you're ready.

Argument of Robert D. Macklin

Mr. Robert D. Macklin: Mr. Chief Justice and may it please the Court at the outset, it should be understood that the rules of the Supreme Court Of Ohio with respect to the Administration of Bar Admissions place no burden upon the applicants approved his good moral character.

Procedures actually one of the investigation performed by the admission's committees of some 89 Bar associations throughout the State.

There's a sort of a student profession under the Ohio Supreme Court and the procedures of the Bar Association Committees are provided by rule of the Supreme Court of Ohio.

Committees are responsible for investigating the character, reputation, and the moral qualifications of the applicants and to report their findings and their recommendations to the Court which in the ultimate result determines whether the candidate shall be in the first instance, registered as a candidate for admission to the practice of the law or in the second instance, whether he should be permitted to take the Bar examination. One process proceeds to the other.

Each step of the procedure requires on the part of the applicant the submission of the character questionnaire which is utilized from the Local Bar Committee in performing its investigation.

In all the phase of the form the applicant is advised that the information may be used is a guide to further investigation.

Justice Potter Stewart: There are two, one beginning on page 5A on the record in the appendix and the second one beginning on page 14A in the appendix.

Mr. Robert D. Macklin: That's correct Mr. Justice.

Justice Potter Stewart: And now who formulated this questionnaire?

Mr. Robert D. Macklin: It's my understanding that this questionnaire was formulated by the Supreme Court of Ohio.

Justice Potter Stewart: By Court, it's the Supreme Court?

Mr. Robert D. Macklin: Yes, Your Honor.

Justice Potter Stewart: And for the use throughout the State and all 88 counties?

Mr. Robert D. Macklin: Yes Your Honor.

The various Bar Associations from time to time make recommendations to the Supreme Court for changes in its rules affecting this, the admission procedure but to my knowledge there has been no change to the format of the questionnaires at least for the past five years.

Justice Potter Stewart: So, it's not incumbent upon each one of the 88 or you said 89 committees to formulate its own questionnaire to do its job?

Mr. Robert D. Macklin: No Your Honor.

It is incumbent upon the committees to further the information that they obtain from these questionnaires.

As an applicant from other State, the petitioner was -- did not require registration as a law student but the petitioner submitted both forms simultaneously.

When he sought permission to take the Bar examination and the reason for this of course is the second questionnaire is primarily designed merely to bring up to the basic information provided for in the first questionnaire.

The petitioner refused to answer two questions on the first questionnaire, one dealing generally with membership in organizations and the other is to whether he was a member of an organization which advocates to the overthrow the Government of the United States by force.

This refusal was based on this right as guaranteed by the Fifth Amendment of the United States Constitution.

On the second questionnaire which--

Justice Potter Stewart: I don't quite understand why you have to fill up the first questionnaire.

Because the first questionnaire I think as you have told us was for law students and he and it's dated there December of 1968 and he even graduated from law school on June of 1968.

Mr. Robert D. Macklin: That's quite correct Mr. Justice Stewart.

Justice Potter Stewart: So, why was this applicable to him at all?

Mr. Robert D. Macklin: This is applicable as a matter of practice on the part of the Ohio Supreme Court itself for obtaining the basic information.

If you were to study the questionnaire design for admission at the Bar, you will find that it really merely supplements the basic information obtained in the first instance.

And the Ohio Supreme Court treats both questionnaires as a complete application.

On the second questionnaire, the petitioner refused for the same reason as on the first questionnaire to answer a question about the membership in club, societies or organizations since the period registered as a law student.

After being duly warned, duly warned of the effect upon the investigation of a failure to answer these questions, the petitioner persisted in his refusal to answer and based upon this refusal, the Bar Admission Committee recommended to the Supreme Court of Ohio that the petitioner's application for admission to the Bar examination be denied.

The Supreme Court of Ohio approved the recommendation of the Admissions Committee and denied the application of the petitioner to be admitted to the March 1969 Bar examination.

Petitioner has not raised an issue any quarrel with the right of the Supreme Court of Ohio to determine the qualifications of those who they would admit to the Bar including the moral fitness of such persons or such person who is to be entrusted with the faith of clients.

It follows, therefore, that the Supreme Court of Ohio does have a legitimate interest in investigating the moral character of its applicants.

They consider it hand-in-hand a part or in parcel together with the technical qualifications for the admission to the Bar.

And pursuant to this purpose, it must be appropriate to allow the Court to inquire into associations to the extent that the information acquired thereby maybe an aid of such legitimate purpose.

The function of the higher questionnaire, both questionnaires for that matter, is to provide the basic information as a guide in conducting the investigation of applicants nothing more.

There's no political test involved, there's no oath of loyalty involved, and there are no prescriptions in mere membership in any organization.

Now, the first of the petitioner's argument in this aggregate effect is really a conjecture as to what the Supreme Court of Ohio might do with the kind of information it seeks on these questionnaires.

Not what it has done but what it might do.

We submit that it would be unfair to determine this case on the basis of the mere possibilities or potentialities of action by the Supreme Court of Ohio.

Surely, one may not presume that the Supreme Court of Ohio is not acutely aware of the decisions of this Court which are so carefully circumscribed areas of improper infringement by the States upon the First and Fourteenth Amendment rights.

Justice John M. Harlan: How long do we say to the questions hereon that there are recommendations (Inaudible)?

Mr. Robert D. Macklin: We don't feel --

Justice John M. Harlan: Specifically, what do you do, what do you say, how does this case incorporate (ph)?

Mr. Robert D. Macklin: Well, Mr. Justice Harlan we look upon disclosure of these associations as simply an entree into the ability to discuss with all the members of these associations whether or not there are aspects of this person's character, his moral fitness which may or may not have a bearing upon his fitness for the Bar.

It's strictly a matter of inquiry or investigation and nothing more.

We have no history to my knowledge in the state whereby a mere association or mere membership within an association has resulted in an applicant being denied permission to take the Bar examination.

Justice Byron R. White: Can you suggest that this question is primarily directed at enabling an inquiry about the man at the organizations or among the members of the organizations that he was a member?

Mr. Robert D. Macklin: Members of the organizations and the associates whom he may have worked within the organization.

Justice Byron R. White: That maybe a fairly easy question for a man when he is 25 that's a -- when he gets to be 45 that gets to be a more difficult question to answer.

Even if his memory hasn't failed by that time perhaps joined some but he can't remember them all.

Isn't that pretty difficult burden to put --

Mr. Robert D. Macklin: Well, it may be but if there's no dissent intent to deceive upon his part by excluding some organization with purposes to mislead the Bar Associations and their examination, I can't think that an innocent exclusion would militate against his acceptance.

I note that most -- I have been a member of this Admissions Committee, as a matter or fact I am a former chairman and I can recall that some applicants even included the Book of the Month Club which I didn't think was necessarily a bad association.

Chief Justice Warren E. Burger: But the question because of its breadth has a tendency to elicit that kind of an answer in the exercise of the carrier that would be duly this kind of an application.

Mr. Robert D. Macklin: It's quite likely.

The Ohio we think that the application of the principle of the second Konigsberg case is uniquely appropriate here.

The effect of acquisition was pointed out to the petitioner when the investigating committee warned him of the consequence of his refusal to answer.

More importantly, the investigating committee has before it a similar questionnaire filled out by the petitioner in applying for admission to the practice of law in the State of New York just a month before he made application to the Ohio Bar.

In that application, he answered the following question, “State whether you have been or are a member of any party or organization engaged in propagating or pledge to affect changes in the form of Government supported by the United States Constitution or in advancing the interest of a foreign country.

If so, state the facts fully.”

Justice Hugo L. Black: Where is that in the appendix?

Mr. Robert D. Macklin: I beg your pardon.

Justice Hugo L. Black: Where is that in the opinion?

Mr. Robert D. Macklin: That is -- it's contained Your Honor in our brief in opposition to our petition for writ of certiorari that's contained on pages 17A and 18A in the appendix there too.

The petitioner responded no to this question.

Justice Thurgood Marshall: Are there general requirement that (Inaudible) the organizations that he ever belonged to?

Mr. Robert D. Macklin: I don't know that it does sir, but it touches on a great many others.

I don't believe that New York has a type of question exactly like the one on Ohio with regard to the associations.

We really felt in Ohio, that where the applicant or the petitioner had answered this similar question at least it has similar elements and to those which refused to answer in Ohio on the basis of his rights as guaranteed by the Fifth Amendment but he thereby created an area of at least let's say perplexity on the part of those who were charged with the investigation of this moral character.

The question of course would be, “Had something occurred in the intervening (Inaudible) that would cause his answers to the Ohio questionnaire to be possibly incriminating?”

It may well be reasonable to logical explanations but the refusal of the petitioner to answer left a complete void in this particular area of the investigation being performed by the Admissions Committee.

The members of the Admissions Committee were literally unable to complete the full investigation and they could not logically make any recommendation to the Supreme Court of Ohio as to the moral qualifications of the applicant.

We contend that there was no reasonable alternative to the action of the Supreme Court of Ohio in denying the petitioner's application.

We submit that the circumstances of this case which offered inconsistent statements bring the fundamental issue squarely within the principles of the second Konigsberg case.

Justice Hugo L. Black: Does the applicant have to swear to this taken oath?

Mr. Robert D. Macklin: Yes, Your Honor, he does.

Justice Hugo L. Black: For which he could be punished for perjury?

Mr. Robert D. Macklin: Yes, Your Honor.

Justice Hugo L. Black: It might be a little difficult, wouldn't it?

To be able to swear where there's some organization believe in overthrowing the Government by force, I don't think there have been many of them.

Would that be an issue to be tried in the perjury case under your questions?

Mr. Robert D. Macklin: I suppose --

Justice Hugo L. Black: If he swears it means he does not belong to any organization that believe an overthrowing the Government or have that advocacy by force and violence and that would be an issue in a perjury case, wouldn't it?

Mr. Robert D. Macklin: Mr. Justice Black, I think it possibly would be but I conceive of it, it could possibly be.

Justice Hugo L. Black: Well, it would be, wouldn't it?

That's what he's swearing.

Mr. Robert D. Macklin: Yes, but I think in addition of this you would have to show that he had an intent to deceive or to answer incorrectly.

Justice Hugo L. Black: But I'm not talking about the intention to deceive.

I'm talking about whether he belonged to any organization that believes on the overthrowing the Government by force and violence.

And he swears to that, one of the incidents would be, whether he belonged to an organization which did that and wouldn't that make that issue open when the case of trial by perjury.

Mr. Robert D. Macklin: Yes, I would agree with you sir.

Well, the fact -- we felt in this particular case is even more appropriate to the principles of the Konigsberg and Anastaplo cases, we would urge that this be the controlling point from the standpoint of our State and we respectfully urged this Court to affirm the decision of the Supreme Court of Ohio.

Chief Justice Warren E. Burger: Thank you Mr. Macklin.

I think you have about -- I think your time has expired, yes.

Thank you, Mr. Boudin for your submission.

Rebuttal of Leonard B. Boudin

Mr. Leonard B. Boudin: Thank you.

Chief Justice Warren E. Burger: Thank you, Mr. Macklin, the case is submitted.

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Argument of Peter D. Baird

Chief Justice Warren E. Burger: Number 53, Baird against Arizona.

Mr. Baird.

Mr. Baird: Mr. Chief Justice may it please the Court.

My name is Peter Baird and I represent petitioner and this cause.

The case before you is on writ of certiorari to the Arizona Supreme Court and it concerns a refusal to admit petitioner to the practice of law in Arizona.

She has graduated from Stanford Law School, she has passed the bar examination and the refusal stands upon her refusal to completely fill out a questionnaire and affidavit prescribed by the Arizona rules of the Supreme Court of Arizona.

There are two particular questions that are involved in this case.

First is the question she did answer and this was question 25 and we set it for on page three of our brief.

This is and I quote, "List all organizations, associations and clubs other than bar associations of which you are or have been a member since attaining the age of 16 years."

This petitioner did, she listed each and every organization to which she has belonged.

The next question --

Justice Potter Stewart: Mr. Baird, I saw that in the brief and then I looked in the appendix and I found that the form in the questionnaire was there but I didn’t see the answers that she gave to that question or did any other question.

Mr. Baird: Mr. Justice Stewart, we do not have as part of the record the answers to the questions.

That is part of the committees’ files and they were not introduced so far as I know before at the Supreme Court.

Justice Potter Stewart: And how do we not then know so far as the record goes that she did fully answer question 25?

Mr. Baird: We alleged that in our verified petition before the Arizona Supreme Court and so far as I know this was not denied and the refusal to admit petitioner is expressly based by the committee upon her refusal to answer question 27, not question 25.

Question 27 reads as follows --

Justice Potter Stewart: I just think it just appears to me and maybe I'm quite wrong and in the course of your argument, maybe you’ll persuade me so, but that the validity of the refusal to answer question 27 might depend upon what answer was given to question 25 and we don’t know what answer was given to question 25.

Mr. Baird: That is true, as part of the record you do not know the names of the organizations to which she has belong which she did list.

Justice Potter Stewart: Well, I don’t want to throw you off here.

Mr. Baird: Her question, question 27 reads "Are you now or have you ever been a member of the communist party or any organization that advocates, overthrow of the Untied States Government by force or violence."

There is --

Chief Justice Warren E. Burger: Would you say that's one question or more than one question?

Mr. Baird: I would say Mr. Chief Justice that really is two questions, one which overlaps with the first question which she answered.

In other words the reference to communist party would show up in the question which she did answer.

If she had belonged to the communist party, it would have showed up in response to question 25 and there is no contention I might add parenthetically that any of those really is a communist party.

So the essence of her refusal goes to the requirement that she characterized.

The group she belonged to and listed in response to 25 as to whether they do advocate the overthrow of the government.

Chief Justice Warren E. Burger: Your brief as I followed your arguments in the brief places a great deal of emphasizes on the invasion of the petitioners right of free political association but may I ask you this question?

Do you include the second half of that question that is the question addressed to whether there is membership in any organization advocating the overthrow by force of the government as an invasion of politically, constitutionally protected right to political association?

Mr. Baird: Yes, we do Mr. Chief Justice.

Chief Justice Warren E. Burger: Then that means you contend that there is a constitutional right, guaranteed and protected right to overthrow the government by force and violence?

Mr. Baird: That is not correct Mr. Chief Justice.

Chief Justice Warren E. Burger: Does that follow?

Mr. Baird: No, I do not believe it do, I think that --

Chief Justice Warren E. Burger: Well, I hope sometime while you're on your feet you'll explain that to me.

Mr. Baird: I will -- I shall do it right now as a matter of fact.

The question as to forcing her to characterize whether any of the groups that she has belonged to is advocates the overthrow of the government of the United States by force and violence requires her to state whether under the Smith Act as I understand it.

Any of them actually does advocate the overthrow of the government.

Now, the burden upon the petitioner is significant in that respect.

It requires her to make various value judgments under the Smith Act and therefore would make her less likely to join these organizations.

As to whether membership per se, in this kind of an organization is unprotected conduct, I think that under the decisions in Elf Brown and perhaps in Robel that one must actually have a specific content to overthrow the government.

Be an active member, know that the organization advocates the overthrow of the government and share that purpose before that association or status maybe proscribed.

The most significant aspect of question 27 apart from the freedom of association aspect is the purpose for which question 27 is asked and this is extremely important in the freedom of association area where the burden in not upon the applicant to state why she shouldn't have to answer it.

The burden is shifted to the state to come forth with a compelling state interest to say why she should answer it.

The compelling state interest which the state has come forward with in this case and presented to the Arizona Supreme Court is and I quote as follows.

"Unless we are to conclude that one who truly and sincerely believes in the overthrow of the United States Government by force and violence is also qualified to practice laws in our Arizona Courts that an answer to this question is indeed appropriate."

The committee again emphasizes that a mere answer of yes would not lead to an automatic rejection of an application.

It would lead to an investigation and interrogation as to whether the applicant presently entertains the view that the violent overthrow of the government is something to be sought to be sought after.

If the answer to this inquiry was yes then indeed we would reject the application and recommend against submission.

Chief Justice Warren E. Burger: Don't you think that this question would be a similarly inappropriate to ask a candidate, an applicant for a job as a police officer?

Mr. Baird: If the purpose was to seek not the conduct of the police officer but rather his political beliefs and views, I would say that it would be inappropriate.

This Court has almost an unbroken chain of precedence saying that belief is absolute Mr. Chief Justice, and I would submit that in any situations except those involving absolute discretion would be a point to uphold the public service.

The beliefs or brainwaves of an individual are not the concerned or the business of the state.

It seems to us that the case really is controlled by Speiser versus Randall.

In that case where a tax exemption was depended upon the execution of an affidavit stating that the applicant did not advocate the overthrow of the government, this Court inferred in holding that that denial of the tax exemption was unconstitutional.

That there was a frank aim at suppressing dangerous ideas and therefore it was unconstitutional.

We say that our case is even stronger, the right to practice law which has been described by this Court as far back as 1867 as a right is much more precious than a tax exemption.

In our case we need not infer an assault upon political belief, it is frankly out in front of us by the expressed statement and very candid mission of the committee.

The affect upon holding that belief is a valid subject of inquiry for the state bar or for any other government institution seems to be involved in a tremendous amount of deterrence, of thought control.

Of perjury problems if the person is under oath as to how do you known whether an individual is telling the truth with respect to matters of the mind, I guess one of our basic points in this area was made in 1867 in ex parte Garland where a former confederate member of the confederate core sought to be a lawyer and was barred because he could not take the oath of office required of him.

This Court and holding that to be a Bill of Attainder said that the right to practice law can only be deprived of by misconduct consisting of moral or professional delinquency.

This point was also referred in Schware v. Board of Bar Examiners where it was noticed that it would be important that the petitioner there actually participated in some unlawful conduct.

We believe that disbarment in the criminal law sanctions are sufficient to present any sort of threat which is posed by ones mind.

In function, this question 27 is really a test oath because it is not a conduct.

It is not asked for the purpose of finding out whether an individual engaged in unlawful conduct.

It is asked for the expressed purpose of finding out whether one has an intent which is to overthrow the government of the United States.

Justice Potter Stewart: And I understand it Mr. Baird that it's your submission that it's no business at all of the government, either in hiring employees or in qualifying applicants for to follow various professions that it's absolutely no business of government to ask any questions of any kind to such applicants as to those applicants beliefs.

Mr. Baird: As to political beliefs and religious beliefs in particular Mr. Justice Stewart.

Justice Potter Stewart: Well now its -- your narrowing it a bit now.

Mr. Baird: Well now I can see that you might say that a bar examination is to test ones thought processes of some sort because it goes to competency.

I don't believe that --

Justice Potter Stewart: Well apart from merely technical professional in competency, let's take the police officer and let's say he's of the requisite weight and height and these educational qualifications.

But then they -- he comes to their attention, he believes in that all Negroes are inferior, that their all criminals and that there should be absolute segregation in the races -- between the races in the city in which he's applying at as a police officer, either a chance relevant at all, to his ability to act as a police officer representing the public?

Mr. Baird: I think it may be relevant Mr. Justice Stewart but I don't believe that relevancy in this situation can be the subject for can be the substitute for a constitutional ban which I understand under the holdings of this Court.

If belief is absolute as we said in Cantwell v. Connecticut.

If use of the individual are in violent, then I submit that it cannot be in violate in some instances or absolute in other instances.

Take the situation of a lawyer where he believes very strongly in opposing the equal protection clause of the United States Constitution.

He opposes Brown versus Board of Education.

He has a state of mind which is inconsistent with the following of the mandates of this Court and of the constitution.

One could say that is relevant because it maybe transposed into conduct which would obstruct equality and --

Justice Potter Stewart: But it has to do with his belief as to what the Equal Protection Clause of the 14th Amendment means.

Well let's assume that he is very strongly of the belief that the way to solve human problems, controversies between human beings or between that individual in the state is not by law but is by throwing bombs.

Now do you think he ought to be admitted to be a lawyer in the state?

Mr. Baird: In so far as --

Justice Potter Stewart: If all his beliefs are that the law is absolutely a useless mechanism to solve any problems and that the way to do it is by assassination and bombs and machine guns.

Mr. Baird: In so far as that is a thought process and does not approach action, then I say that, "Yes, that is protected just the same as a belief of declaring or fighting wars without congressional declaration."

I think there are sort of thought which are inconsistent which if transposed into conduct post enormous threats to the security of the United States but the converse, the choice is opening a wedge into a freedom of a mans mind.

Justice Potter Stewart: But were not here talking about whether or not such a belief might be protected in the abstract which I suppose that everybody would agree to.

But the question is about whether such a person is the kind of a person who would have the proper ingredients to be a lawyer.

On account of state which does setup standards for to admission to his bar.

Relevantly, make such an inquiry.

Mr. Baird: Not into his mind, into his background, his conduct, his character but not into his mind Mr. Justice Stewart because you could ask that kind of question in any sort of a context.

With respect to any kind of belief which means some bar committee must have a valued judgment in mind as to what is good belief and what is bad belief and as I understand the Flag Salute case in West Virginia v. Barnette this Court said that no official hire pity has the right to prescribe what is orthodox in politics, religion or matters of the conscience and a mans mind really is a very --very highly protected right.

In the abstract or in the concrete either way and it is our contention that this kind of a question which is aimed at belief can be sharply contrasted from the oath which the petitioner is seeking to take.

The oath of office which is sanctioned in Arizona by the rules of this Court and by the constitution to support the laws of the United States and she is willing to do this and that is an oath that is not broken by thought, it is an oath which is broken by conduct for unlawful conduct.

Justice Byron R. White: Well, I take it if you go on and say not only may they not pry into the mind but that the petitioner may -- is constitutionally entitled not only to believe without being barred from admission of the bar, but also to join an organization with others who have similar beliefs.

In the first place and secondly to join an organization of others who have not only similar beliefs but who actively the organization as an entity, actively pursues the overthrow of the government by force and violence.

The petitioners constitutionally entitled to join that organization, still be a member of the bar until the message is proved that by conduct he joins the activity of the organization.

He joins in the activity of the organization.

Mr. Baird: Mr. Justice White I first of all say that isn't the case here but I do wish to meet your point which is when you move from the area of belief.

The continuum into conduct and the closer you come to conduct the more likely I am to say that the bar committee has every right to examine that conduct and make it's determination as to whether it indicates moral turpitude or bad moral character.

I would say that if an individual belongs to the communist party or some very unpopular organization such as that or take it on the right side of the spectrum of the minute man or whatever.

But that person, until he actually violates the law by his conduct, I do not believe that he should be denied the right to practice law.

Justice Byron R. White: Well let's assume that there is some point in which his affiliation with the organization would disqualify.

May the state as a preliminary matter ask him if he's a member of the organization?

Mr. Baird: In our case, I say yes. We have answered every organization to which the petitioner --

Justice Byron R. White: You would say that the state may say to a person "Are you a member of the communist party"?

Mr. Baird: Yes, on the basis of --

Justice Byron R. White: And then disqualify him if he refuses to answer?

Mr. Baird: Well that brings -- well I think that probably is closer to the facts of the case which will follow us than ours but I would say that as in so far as Konigsberg and Anastaplo state the law that the petitioner in this case as she did must answer a question asking for the name of an organization.

She --

Justice Byron R. White: A specific question whether they can disqualify her if she is a member, I understand that.

And you think it's a different question too?

Mr. Baird: You mean if she's already a lawyer?

Justice Byron R. White: No, if she answers yes it's a different question as to what she can be disqualified from practice.

Mr. Baird: If I follow you right, yes.

Justice Hugo L. Black: Where is her answer to 25?

Mr. Baird: Where is her answer?

Justice Hugo L. Black: Is it in the record in around?

Mr. Baird: I do not believe it is Mr. Justice Black.

I don't think that the committee entered that into evidence before the Arizona Supreme Court so it's not --

Justice Hugo L. Black: You mean they didn't put in her answer to question 25?

Mr. Baird: I do not think so; I do not recall that that is actually part of the record.

All I know is that we alleged that she fully and fairly answered the question and that there is no --

Did they say she answered 25?

Mr. Baird: Yes.

Justice Hugo L. Black: Has she been accused of not answering 25?

Mr. Baird: No, she has not been accused of not answering question 25.

Justice Hugo L. Black: And they asked her all the organization she belonged to since she was 16?

Mr. Baird: Since she's 16, under Konigsberg --

Justice Hugo L. Black: We have to take it as though that answered and answered truthfully?

Mr. Baird: Yes, I think so.

We alleged in our verified petition to the Arizona Supreme Court that this question was answered fully and truthfully and this was not really denied at all.

It has been, and as a matter of fact the committee has stated in its position before the Arizona Supreme Court that the only reason that they are keeping the petitioner from practice law is her refusal to answer question 27 thus clearly --

Justice Hugo L. Black: But why doesn't 25 cover it?

Mr. Baird: Well because question 27 asks --

Justice Hugo L. Black: Unless they're trying to get her to swear that the communist party believes in overthrowing the government by force.

Mr. Baird: I think the purpose for the question is that -- well the answer is that she had answered question 25, so in far that as they would need that information to find references to investigate petitioners background and conduct, they can get it because they have all of the groups to which she belonged.

They can use that --

Justice Hugo L. Black: How many are there?

Mr. Baird: Pardon me?

Justice Hugo L. Black: How many were there, do you know?

Mr. Baird: I can't remember, but in so far that is a valid purpose they can use the answer to question 25 and find these references.

Justice Hugo L. Black: You'd give a hundred women's associations and clubs?

Mr. Baird: I think the girl scouts was one of them, was on that list.

In so far there's a valid purpose, it could be served by her answer to question 25 because she was probably required under Konigsberg and Anastaplo to answer a question asking for membership because there is a possible valid purpose but to ask question 27 having already answered question 25.

They needed now to investigate ones beliefs and it is our position here that beliefs are not a legitimate subject for inquiry.

Chief Justice Warren E. Burger: But are you suggesting that on the record as it now stands before us, this case is in the same posture as it would be if she had answered 27 by saying "I have already answered this question and answer 25"?

Mr. Baird: No, it really isn't Mr. Chief Justice --

Chief Justice Warren E. Burger: So it is a different question?

Mr. Baird: It is a different question because question 27 asks --

Justice Hugo L. Black: But it's not a different question about her belonging to associations, is it?

Mr. Baird: Well yes and so far it's a communist party is --

Justice Hugo L. Black: This one, one asked all associations and just picked one out in particular.

Mr. Baird: As well as asking whether in affect are any of those organizations you listed in response to question 25.

Is anyone of them -- does anyone of them advocate the overthrow of the government by force and violence?

This does bring --

Justice Byron R. White: As I understand that do you find belief that that is an inquiry of belief I gather only from the response of the committee itself.

You don't find that facing that --?

Mr. Baird: That is correct; it has been supplemented by the committee, apparently coming forward as it must on your NACCP versus Alabama to come forward with a compelling state interest to move in to the area of freedom of --

Justice Byron R. White: What do you think the state now argues in this Court as to what the reason for the question?

Mr. Baird: I think that the reading of brief of the respondent that the text of their answer has changed somewhat.

Justice Byron R. White: So whom should we believe, the bar committee or their bar committee's views as expressed in the court below or the bar committee's views as it's expressed here now?

Mr. Baird: I think you should probably ask them but I submit that it should be --

Justice Byron R. White: But would accept whatever answer they give?

Mr. Baird: No, I would not.

I think that it should be the committee's answer which was presented to the Arizona Supreme Court which ruled on the basis of that memorandum of points and authorities thereby presumably adopting the position of the committee because I had no opinion.

Justice Byron R. White: Well what if the judgment is sustainable on another ground?

Mr. Baird: You mean that you would just ignore the political belief point and move into some other substantive --

Justice Byron R. White: What would the state now asserts, what sustained the matter --

Mr. Baird: I think that as I understand --

Justice Byron R. White: -- offer for it?

Mr. Baird: I understand the appellate procedure it is the general rule that you must present the issues to the lower court as a normal matter before they can be presented here.

However this is certainly under the digression of this Court to waive, I'm sure.

Justice Byron R. White: But this is the -- they're all First Amendment claims aren't they?

Mr. Baird: Our claims are First Amendment as well as Fifth Amendment.

Justice Byron R. White: Yes, well if the First Amendment claim was presented in the lower court and if the judgment of the lower court on the First Amendment claim is sustainable on another First Amendment ground, is that improper appellate practice?

Mr. Baird: I -- I would say that in so far as this case is concerned, yes because before the Arizona Supreme Court, the attack was clearly on political belief.

Justice William J. Brennan: But what about this Mr. Baird, I noticed Mr. Wilmer's brief in page three.

He says "This committee has made it abundantly clear that regardless of the political beliefs and views of Sara Baird.

It is only if she is found to be actively believed to the notion of the spouse an act of this rule in implementing the notion that our government be destroyed by course of violence that a favorable recommendation will be reputed by the committee."

I gather the argument is that they ask the question only to illicit the answer to something like this and if she doesn't answer that she actively believes in or a spouse as an activist role, but then she be admitted to bar, is that right?

Mr. Baird: Apparently but that statement is a far cry from the statement that the --

Justice William J. Brennan: Well, it certainly is far cry from what they said before, am I right?

Mr. Baird: -- committee stated before the Arizona Supreme Court.

It said that it would lead to an investigation as to whether or not the applicant presently entertains the view and if so then they would reject the application.

Justice William J. Brennan: Now we are opposed or are you with deciding this on the basis of memorandum or deciding this on the basis of the argument of the brief, which?

Mr. Baird: I submit that it should be decided on the basis of the issue as was presented to the Arizona Supreme Court for their decision.

Justice William J. Brennan: I expect you would, but well, let me ask this, do you suppose the committee if indeed the question were directed to what the board is now said that the directives that constitutionally bears and it has any other claims?

Mr. Baird: Yes, I do.

I read the committee's statement as still encompassing belief because it says actively believe I still say that that refers to her beliefs as I suppose to and spouses that at the greatest extent would involve speech and that does not come close to the Brandenburg decision this Court annunciated just last term where it said that "You must espouse directed toward action and is likely to produce action of an imminent violent sort or something to that nature", which is really again a far cry from this statement by the committee.

Justice Potter Stewart: But Mr. Brandenburg wasn't an applicant to the bar of Arizona.

Mr. Baird: That is absolutely correct; there is no question about that.

Justice Potter Stewart: What's the posture of this case procedurally?

I'm thinking I've had in mind concerned about the finality, in other words if this question 27 where it answered no.

I suppose that would be the end of the case?

Mr. Baird: I assume so, yes.

Justice Potter Stewart: And since it hasn't yet been answered at all is it a final judgment over which we can take jurisdiction?

Mr. Baird: I think so, in Konigsberg and Anastopalo, they did not answer the question with respect to their associations and it seemed to be final and Schneider versus Smith where the merchant marine applicant was involved.

He refused to answer questions at that time, if he had answered them I suppose that could've disposed of the case.

Justice Potter Stewart: For sometimes I don't have in mind the precise posture of those cases but sometimes it could resolve in contempt and what not. But that hasn't happened --

Mr. Baird: No.

Justice Potter Stewart: -- here, it's just pending.

It is just pending, if the answer is no to that question then that's the end of it I suppose, she's admitted to the bar is that it?

Mr. Baird: I suppose so.

Justice Potter Stewart: And if the answer is yes then there maybe more proceedings and they might not be admitted to the bar?

Mr. Baird: Yes, that is true.

Justice Potter Stewart: Now why is it anything final over which we have jurisdiction at this juncture?

Mr. Baird: Well because I don't believe that the committee can require and answer to an unconstitutional question which is posed to seek out political belief, to --

Justice Byron R. White: That is what the question asked.

That is what the questioned ask, your just relying on the statement as to what they would do if she answered the question or the reason for the question.

Mr. Baird: The question requires her to make a judgment and the burden presumably is upon her to see whether they advocate the overthrow of the government by force and violence.

This requires her to deal and grapple with the issues of the Smith Act and that kind of a burden was specifically condemned in Speiser v. Randall where it said that the burden in this area should not be applied on the person who seeks a tax exemption.

Justice William J. Brennan: Is this a First Amendment argument?

Mr. Baird: This is -- yes it is because it would make one very much less likely to join an organization if he has to always make judgments as to whether that organization advocates, and if he misses in his judgment as to whether that organization advocates, He could be prosecuted for perjury, I probably wouldn't stand up but he could be prosecuted, this is under oath.

Justice John M. Harlan: Well am I wrong in thinking that Mrs. Baird will not be admitted to the bar if the record shows that you will not be admitted to the bar unless she answers the question?

Mr. Baird: If she answers the question --

Justice John M. Harlan: Unless she answers the questions.

Mr. Baird: Unless she answers the question she will not be admitted to the bar.

Justice John M. Harlan: Didn't the record show that?

Mr. Baird: Yes, it does.

Justice John M. Harlan: Well I would suppose there's plenty of finality on that?

Mr. Baird: Yes, I think that there probably would be.

The very last point is our Fifth Amendment argument and this is simply to the effect that if an answer is required and if the answer were yes it would be an incriminating circumstance and a link in the chain.

If Spivack versus Klein is to be applied to the bar admission area as oppose to the disbarment area.

That seems to us that logically petitioner would be able to be a member of the bar of Arizona solely and entirely upon the Fifth Amendment.

We respectfully request that the decision of the court below be reversed.

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Baird v. State Bar of Arizona - Oral Argument, Part 2

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Case:

Baird v. State Bar of Arizona

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15_19691209-argument-2.mp3

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15_19691209-argument-2.xml

Transcript:

Argument of Mark Wilmer

Chief Justice Warren E. Burger: I think, Mr. Baird you have one minute left and I take it you're reserving that for a rebuttal.

Mr. Wilmer, you may proceed.

Mr. Wilmer: May it please the Court.

I think at the outset it might be appropriate and go serviceable to the Court, if we would first put in proper relationship, proper context the record in the court below.

I would say at the outset that the position of the respondent is not one of an advocate either way so far as this question of finality is concerned.

As we review our responsibility here to simply to bring to the Court the facts with respect to this question and then proceed on to as best we can explain the other proceedings in the Court below.

I think the best way to put the record in proper relationship to the actual facts is perhaps to begin with the response which was filed by the committee in the Supreme Court of the State of Arizona.

Now, it is my understanding from reading rules of this Court that papers that are certified by the clerk of the lower court are part of the record and subject to being considered in this case.

I say that for this reason that the appendix which is part of the petitioners filing with this Court excerpts from the committee's response to our Supreme Court, certain portions of that response, necessarily when this matter was brought to the attention of the committee, the full impact, the full exposure of this case in this Court, was not readily understood, and accordingly we did not enlarge upon the printed portions of the response of the Arizona committee on examinations to the Arizona Supreme Court.

The original, however, is in the record and I would like briefly to refer to that with the Court's permission.

I say that for this reason that we have indicated our position as one of simply here are the facts we made us on the citing of the case now as any other time if in fact this Court has jurisdiction.

The Court will recall that it has been brought to the Court's attention that the proceeding in the Arizona Supreme Court was initiated by a petition for an order to show cause, directed to the Committee on Examinations and Admissions.

And referring to the appendix before I move on, the prayer of that petition read as follows, the Arizona Supreme Court, “Wherefore your petitioners pray that this Court make another its order requiring the Committee on Examinations and Admissions of the Supreme Court of the State of Arizona be in appear before this Court of at to date at a time certain then an order to show cause, if any it may have, quite petitioner should not be forth with recommended for admission by the State to the State Bar or in the alternative show cause like petitioner's applications should not be processed by the committee without requiring the petitioner, any further answer -- of petitioner any further answer to the question 27 of applicant's questionnaire and affidavit.”

The Court would recall this is a question which asked, “Have you ever been a member of the Communist Party or any organizations which supports the overthrowing of the Government of the United States by force and violence?”

The opening portion on the memorandum which the committee filed with the Arizona Supreme Court reads as follows: “Applicant in a main treats the posture of our application to the committee as rejected by the committee, and from this false premise enlarges upon a proposed constitutional rights of the applicant.

Nothing could be chored from the true fact.”

Justice John M. Harlan: Are you reading from the --

Mr. Wilmer: I'm reading Your Honor and then I'm sorry this is not in the printed appendix, Your Honor.

It is in the original of the respond certified by the clerk of the Arizona Supreme Court to this Court.

Justice John M. Harlan: And why isn't this on the appendix?

Mr. Wilmer: Well, Your Honor, I must say it frankly, I didn't suppose it would be needed at the time when I read the appendix as certified.

In other words, we did not have a complete view of the flow of the case in this Court as to what or would not be material.

Because I read your rules and I assume I am correct.

Even though it is not printed in the appendix, nonetheless say for this part of the certified record, it may be referred to before this Court.

Of course if that is not true, I should not do so.

Justice John M. Harlan: Is the paper actually physically in the clerk's office?

Mr. Wilmer: It should be, Your Honor.

Justice John M. Harlan: Oh, thank you.

Mr. Wilmer: This would be the responds of the committee to the petitioner's order to show cause and may I please the Court in this Arizona Supreme Court.

Justice John M. Harlan: (Voice Overlap) I'm reading that again then since we have all have the cause.

Mr. Wilmer: Yes Your Honor, I'm sure.

I'm sorry I have finally realized the moment (Inaudible).

That is if it would have been a better applicant in the main treats the posture of our application to the committee as rejected by the committee and from this fault's premise enlarges upon the supposed in constitutional rights of the applicant.

Nothing could be further from the true fact as this appears from the letter of April 24, 1968 attached to the affidavit of Robert A. Gellin where the Court will recall this chief counsel for a petitioner.

The committee has not rejected the application of Sarah Baird and does not intend to do so, unless and until further facts appear which would warrant this rejection.

I would say in this context, may it please the Court, that this letter of Robert -- to Mr. Robert A. Gellin and antedated the application of the petitioner for an order to show cause to the Arizona Supreme Court.

In other words, this was the discussion of counsel prior to the initiation of this proceeding.

Justice John M. Harlan: Could I ask you a question Mr. Wilmer?

Mr. Wilmer: Yes, Your Honor.

Justice John M. Harlan: Assuming this litigation never been brought and Mrs. Baird simply persisted in her view that she didn't have to answer the question.

What would have happen to her application to the bar, her admission to the bar?

Mr. Wilmer: Her application, Your Honor, which still as it is today sitting on our shelves waiting for her to either move her mandamuses to complete the processing of it or something else would have happen.

In our position of that may I say this briefly Your Honor.

The Committee on Examinations and Admissions is a criterion hand made of the Arizona Supreme Court.

Justice John M. Harlan: Yes.

Mr. Wilmer: We have no authority other than that which the Court gives us and I might say if it should become of consequence, the entire rules of the Arizona Supreme Court that are in volume I believe it is 17 of West Publishing Companies of Arizona revised statues.

They govern, they limit, they set to the extent of our authority.

We have no inherent authority or any kind, the rights other than oath givens by the rules.

Therefore, when the Court says to us, ask these questions and they're set out verbatim and this is one of them.

Get the answers from them and then you proceed to certify to this Court your opinion.

We have no choice as far as we're concerned, we are stymied.

We cannot reject it much more as we could if we want to be arbitrary, perhaps we should.

I don't know but the facts are that in less and until that question is answered or someone tells us that we most do something else that case with that matter we'll say it as it is.

Justice John M. Harlan: In other origin, is it fair to say that in practical effect as far as her position is concern, you're continuing to sit down on the hypothetical premises that no litigation had been brought here will be the equivalent if you're saying, “Well you're required to answer this question, since you won't cooperate with the committee, we won't admit you in to the bar.

Is that accurate?

Mr. Wilmer: Only to this extents, Your Honor.

The committee has no authority one way or the other to admit or reject anyone.

We merely make a recommendation to the Arizona Supreme Court does the admission, does the rejection.

I would say this if it may please the Court that Justice Harlan by interaction between the rule and the committee's action for practical purposes, I would conceive that Mrs. Baird is for the moment at least effectively stymied.

Now, whether she should bring a mandamus and in that faction call upon the Arizona Supreme Court to make an effective ruling that is not automated within our providence.

I would simply say that as are the moment at least, the Arizona Supreme Court has been told by the committee.

We haven't made our decision.

We are unable to make a decision and therefore we submit the matters as it is and the Court simply said, “Well we deny the petition, you should complete due process in this petition.”

Now, whether that amounts to finality or not within the rule of this Court, I don't know, I express the opinion as to it, I simply bring it to the Court's attention.

I might say though for the purpose of my next statement to the Court that this letter of April 24, 1968 which antedated the beginning of this proceeding to Mr. Allen as chief counsel for the petitioner, I believe has some of validity and some value in determining what in effect, what in fact I should say is the actual position of the committee in the court below and the committee here.

This letter said, I also believe, that Mrs. Baird should realize that even though she answered the question, “Did she had at one time been communist or had had otherwise been associated with the organizations not regarded as friendly to the United States Government?”

This would not necessarily cause us to reject her application.

We would undoubtly want to ask you some questions as to her present beliefs and as to the other matters which would bear upon the effect of such membership would have are their qualification to practice law.

The committee is aware that under presence of Supreme Court decisions, mere membership in an organization is not sufficient necessarily to disqualify rank and positions of responsibility and this would be the added through the committee in this matter.

Now, I say that for this position for this reason if it please the Court.

We have had here what I would term some rather fancy steps down the sidelines, so to speak, of what words mean.

I believe that as we proceed, we'll find the committee made it an unequivocally and plainly apparent to Mrs. Baird.

We were not concern with what her beliefs were such.

We are not concerned with looking inside her heart to see what she believe or didn't believe in.

We were concerned with finding out did she have the qualification which should make her a lawyer, which would justify us in certifying to the Arizona Supreme Court that in fact she would be a lawyer that the Court would be proud of having admitted.

Now, a fair reading, I believe if it please the Court of the committee's a letter to Mr. Allen.

The Committee's response to the Arizona Supreme Court have our response here indicates simply one thing whether we use the word "belief" or whether we use the word "view"1 or whatever word we use.

We are concerned with one thing.

I heard yesterday the questioned ask if Mr. Baird would prefer the question he presented here whether the record he's made in the court below or here.

And I believe he said here.

I have to confess surprise.

I wrote them both and I really didn't think I was saying anything different one time than the other.

I thought we were saying to the court below and the thought we're saying to this Court that if Mrs. Baird believes in the sense that she would actively advocate and assist and advance the overthrow of the Government of the United States and the States of Arizona by force and violence, we want no pardon nor will we recommend her for admission to our Arizona Supreme Court unless and until we are told to do so by some higher authority.

Justice Thurgood Marshall: Mr. Wilmer.

Mr. Wilmer: Yes, Your Honor.

Justice Thurgood Marshall: The statement in your brief, you want to know whether not Sara Baird is only if she is found to actively believe.

Mr. Wilmer: That is right.

Justice Thurgood Marshall: What that meant?

Mr. Wilmer: Below?

Your Honor, I meant by that that she was prepared to go out and walk up and down the streets and take other step necessary to advance.

Justice Thurgood Marshall: Well, let's leave it if she's willing to walk up and down the streets.

Mr. Wilmer: Pardon, Your Honor.

Justice Thurgood Marshall: Well, let's take the first one.

Suppose she is willing to walk up and down the street.

Mr. Wilmer: Advocating the Government -- overthrow the Government by force and violence?

Justice Thurgood Marshall: Yes.

Mr. Wilmer: I would say if it please the Court that number one that that would contravene the Canon of Ethics, which said you shall do nothing to bring at disrepute the profession of the law or the Court.

Therefore, I would say that if Mrs. Baird said, I propose to walk up and down the streets out for -- I'm admitted as a lawyer and proclaiming to the world that I a lawyer believed we should blow up the capital, assassinate public officials and otherwise change that form of this Government by force we want no pardon of her unless we're told we must let her in.

Justice Thurgood Marshall: Well, I supposed he catch up at a sign which says I don't like Colorado.

Mr. Wilmer: I don't like which one?

Justice Thurgood Marshall: Colorado or the United States.

Mr. Wilmer: I would have no problem with that at all.

I think that's her privilege.

That's her privilege.

Justice Thurgood Marshall: Where is the line you're going to get on this?

Mr. Wilmer: The line that I draw Your Honor is when you talk about destruction of this Government by force and violence.

Justice Thurgood Marshall: Believe in it or do it?

Mr. Wilmer: Pardon.

Justice Thurgood Marshall: Just to believe in it?

Mr. Wilmer: The committee's position Your Honor was not just a belief.

Your committee, the committee's position was actively accept and actively advanced that philosophy and that solution.

Justice John M. Harlan: Well, I think you get much of this for saying (Inaudible).

Mr. Wilmer: Yes, certainly.

Justice John M. Harlan: Oh, I see.

Mr. Wilmer: We couldn't care a less what are beliefs are in any field except that which endangers directly upon the validity and the utility of her service as a lawyer as to those matters we are concerned and we're critically concerned.

Now, --

Justice Thurgood Marshall: Does this means that you do some act in addition to believe it?

Mr. Wilmer: I would say your (Voice Overlap) the occasion is right, you would do it, yes and I don't believe that person should be a lawyer.

Justice John M. Harlan: Those first statutes that you're talking about are not incorporated in the question.

Mr. Wilmer: They would have been incorporated in the questions asked.

Justice John M. Harlan: You have to take a position that this is preliminary?

Mr. Wilmer: Yes, Your Honor.

Justice John M. Harlan: Preliminary that needs further investigation.

Mr. Wilmer: Our rules provide Your Honor that in making its investigation, the committee can conduct an informal or formal investigation.

It can interrogate a witness in formally with the understanding that if that interrogation is to be made a part of the decision, it must then to conform or it must go on record but I have tried to say numerous times, we would simply call Mrs. Baird and say, “Look what do you really believe about this?

Do you?

Are you prepared if you're admitted to practice should a crisis arrive that the Government is threaten with violence, are your hands completely free and are you as a citizen completely able to stand behind the forces of government which you firmly uphold when you become a lawyer?

Or that point will you retire and negate the oath which you took?

Justice John M. Harlan: Could I ask you another question?

Mr. Wilmer: Sure, Your Honor.

Justice John M. Harlan: How long has this questioned in the present form been part of the process and requirement for admission?

Mr. Wilmer: Your Honor, I can't answer that that other than to say has been there for at least 10 years to my knowledge and I would assume many years prior to that.

I think it is not an --

Justice John M. Harlan: It has not been revised.

Mr. Wilmer: Pardon.

Justice John M. Harlan: Has there been any attempts to revise it?

Mr. Wilmer: No, as far as I know Your Honor.

The rules as they now -- that is these rules as they now stand are those that probably I answered four years ago but I can't swear to that, I don't remember.

It's been a long time, we'll put it that way.

Chief Justice Warren E. Burger: May I ask you another question?

Mr. Wilmer: Yes, Your Honor.

Chief Justice Warren E. Burger: Does this application require an applicant to restate whether he or she has ever been convicted of a criminal act?

Mr. Wilmer: If he has a usual question whether not they have been involved in fraud whether or not they have been bonded and if such, there had a bond claim it against him and have they been involved in any criminal actions?

Chief Justice Warren E. Burger: I suppose if there was an applicant refuses to answer that particular question, with that applicant be done on the same procedure that Mrs. Baird is in at the present time with reference to the board's action?

Mr. Wilmer: Yes.

Yes, I'm sure we're not going to say you refuse to tell us if you stole money somewhere so we're going to admit you anyway.

Chief Justice Warren E. Burger: Now then, if the answer to that question might be yes when I was 14 years old, I was found guilty as a juvenile of some offense, would that in and of itself bar or prevent her admission as a member of the bar?

Mr. Wilmer: I can say this in all honestly, Your Honor, we've admitted people at their younger age have been guilty of burglary, statutory rape or what have she questioned have been rehabilitated?

Do they now measure up to the standards of who or what a person should be or appear she desires to be a lawyer?

Justice Thurgood Marshall: Mr. Wilmer, you also said she had yes to 27, that wouldn't automatically bar.

Mr. Wilmer: To 27?

Justice Thurgood Marshall: To the question in 27.

Mr. Wilmer: No, it would not bar her.

No, no, no Your Honor.

It would not.

Justice Thurgood Marshall: You then have a hearing and sort of hearing then.

Mr. Wilmer: We would then endeavor to find out how deep did that belief lie.

And if it lay on the surface and then simply a childish thing, a passing fancy that's one thing.

If it descended to the depths of an embedded truth, fanatical, getting the Government should be destroyed.

I therefore then feel it that person should not be admitted to practice law.

Now, I would like to simply say then Your Honor that we are told that this belief that Mrs. Berg talks about is a political belief, it's a political matter, its something which is protected by the decision of this Court.

Therefore, we should not be permitted to inquire under thought processes connection with it.

I find it difficult, if it please the Court, to believe that the notion of a bomb dropped at the appropriate time in 17 different places in the United States and then attempt to take over the Government is a political matter and that is what I read into the notion of overthrowing this Government by force and violence.

1I do not read into the notion of assassination of public officials, members of the Congress or other persons which in positions of authority for the bad purpose.

I do not read that as a political activity or as a political belief which is subject to protection.

Some years back, unfortunately we had I suppose what was then considered a form of the administration of justice in the western states and unfortunately in other places commonly known as necktie parties.

But all of these are true that when that unfortunate individual was strung up who is suspected of having been a rapist, suspected of having been a murderer or whatever capital thief, whatever you want to term it.

I suspect that you might turn not the administration of justice but I don't believe that you would term that the administration of justice in the sense that we are speaking of the administration of justice today and by like talking, I do not believe that the notion of violence, a violent overthrow the Government of this country for the very purpose of destroying it as a political belief, if so on smarter than I will have to convince the other.

Now, I should deal briefly if it please the Court to this public versus -- Spevack versus Klein which is of course the -- probably the case that expand many of these things that are now coming to life.

Justice Byron R. White: Do you --

Mr. Wilmer: Yes, Mr. Justice White.

Justice Byron R. White: Do you feel that the Fifth Amendment claim is open in this case?

Mr. Wilmer: Incrimination?

Justice Byron R. White: Yes.

Mr. Wilmer: I would not raise the point that it was not -- that is was not adequately raised Your Honor.

I would not raise that because I think at least we were unnoticed to the fact that she deserves that.

Justice Byron R. White: Was there any indication that at any time during these proceedings at least until it got to the Supreme Court that there was refusal to answer at question 27 on the grounds of self-incrimination?

Mr. Wilmer: The answer to the question as given on the, in their, on the affidavit was not applicable.

I frankly do not --

Justice Byron R. White: Were there any correspondents or any conferences where the --

Mr. Wilmer: Yes, I would have to say Your Honor my recollection is that probably it was raised.

Justice Byron R. White: The Fifth Amendment was raised --

Mr. Wilmer: Yes I would say it.

Justice Byron R. White: Without refusing the answer to the question.

Mr. Wilmer: I think it was Mr. Baird, I'm sure I can qualify my answer one where the other be but my recollection inside in this discussion with Mr. Allen and in related matters that at least to put the point we'd brought up that this amounted to incrimination.

Justice Byron R. White: So, was it -- it was urged in the Supreme Court of Arizona?

Mr. Wilmer: Well, Your Honor the problem with that year that there's the brief, relatively brief petition filed.

The relatively brief response with the memorandum and the argument was not reported.

Justice Byron R. White: Was there a memorandum supporting the petition?

Mr. Wilmer: Yes.

Yes.

Justice Byron R. White: Did that mention the Fifth Amendment?

Mr. Wilmer: Your Honor, I have to confess, which I don't know.

If it would be -- it would be with the file but I don't have a sharp enough recollection at the moment to answer Your Honor and be of service to you.

I would simply say with respect to the Klein case which of course says that the lawyer may not be disbarred for refusing to answer the question that is relative at the Fifth Amendment?

I think that that case is not readily distinguishable.

I would be little optimistic to say that but I would say it is distinguishable and I think it is distinguishable on adequate grounds and that is the Fifth Amendment situation, if it please you, Mr. Justice White.

I don't like to use this illustration but I can't think of none more apt and that is this.

In Arizona and Massachusetts and Florida and Washington, they have what is called dog race and in that particular activity which is per mutual betting situation.

Dogs that have never run are what are called schooled.

In other words they are run through the race as if it was a race.

There time is recorded, the whole thing is recorded just like any race track in which way with desire to know about any dog or horse.

And based on that when they do start running they are (Inaudible).

Well, now the reason that is you has a track record.

You have something to go over and those that have been on the track and have run have already established themselves and I say therefore that when someone comes who has not have a track record as to we have no background, then rightfully a different rule should apply than from a lawyer who has been admitted to practice which established his reputation or his ability relative to practice, who has in all things carry himself such at the bar may property criticized.

And then therefore, I say that when we say that a lawyer who has been admitted to practice who is a practicing lawyer should be permitted to take the Fifth Amendment, I would readily distinguish that from the applicant who is a raw product, if I may use that, that expression, whose qualifications, whose future, whose ability is unknown that then we must judge and therefore we are entitled to ask many questions, we probably should not and could not answer at admitted lawyer.

I would just say and closely if it please the Court that there are some very sound reasons for the formality of this affidavit and the application.

I realized it is perhaps since burdens at some of the outset but without attempting if it please the Court to appear critical of our law schools.

I think one of the biggest problems that is met by the bar today and by the administrative committee is a complete default in many of the law schools of any attempt to teach ethics at all, of any attempt to teach professional responsibility and it is only when we bring these young people up short against an application which indicates, this is a mighty important thing.

This is a type of practice that is very, very important that all these things declared before you may practice.

We think that tends to bring to their mind and perhaps the consciousness of the importance of this.

I might just say it in one more other thing.

Seven or eight years ago, Ohio Supreme Court at the committees request, adopted a rule that says you can't be admitted to practice until you pass the examination of professional ethics.

You can't be admitted until you have passed that examination.

I will say this that we no longer have applicant who spell Canons of Ethics, C-A-N-N-O-N-S then I can spell up.

We do not catch anyone on the basis of that requirement.

We teach them how the lawyers, if it please the Court, that this is an important profession and that ethics is probably the most important part of it and therefore this type of an application, we feel, is highly important as bringing ho1me to the extent we can to the applicant, this is a mighty important thing you're going into.

This was a very, very serious thing that you're going into.

These questions are necessary because unless you live a road of spotless life you don't belong in our profession.

Justice John M. Harlan: Can I actually ask the number of questions perhaps they're a little outside the record that I think it's appropriate to ask them in understanding that in any other way.

In light of what you say your standards would be in Mrs. Baird in answering this question going further in satisfying yourself that this was something more than that belief in the abstract's answer.

Have you ever asked your Court to change the form of that question to incorporate those elements in it?

Mr. Wilmer: No, but I think perhaps that this might be an indication we should Your Honor.

I like to say these are old, old questions and --

Justice John M. Harlan: Yes.

Mr. Wilmer: I'm not at all here defending them.

I'm simply here saying that these are what we lived with.

Justice John M. Harlan: Second question that I wanted to ask you is if this litigation pending what's the fate of that question as it's in present form now or applicants refusing to answer or you're holding up or are they answering it or oops, they are not?

Mr. Wilmer: Your Honor, they are both the management if they're now and raising the question of residency as being a right or any residency in the light of a Shapiro case.

We're now having a span of objections to any requirement of residency because of Shapiro case.

So, that for that as to this one question they seem to have become reconciled answer.

Justice Potter Stewart: As I understand it even on the full record that is here, we do not have Mrs. Braid's answers to question 25, is that --

Mr. Wilmer: No, Your Honor but I would not make a point of that because my recollection is at Mrs. Braid did answered, if she haven't been sure we wouldn't made a point of it.

I cannot recall in detail what her answer was but I know it satisfied us or we would have or should have been but of my recollection is she did list quite a number for organizations but it is not here and I would take responsible --

Justice Potter Stewart: Would there be any objection either of you who is supplementing this record if this is an admitted fact that she answered them and do submit the --

Mr. Wilmer: I'd be glad to Your Honor.

Justice Potter Stewart: Submit the answers.

Mr. Wilmer: No (Voice Overlap).

Justice Potter Stewart: I myself I'd like to see the record supplemented.

Mr. Wilmer: If I had realized it that we would have it here Your Honor but we'd be very happy to do it, supply it ourselves.

Mrs. Baird can supply whatever she can be.

Justice Hugo L. Black: Would she have been required on the answer in answering question 25 to state that she had been a member of the Communist Party, if she had?

Mr. Wilmer: Yes.

Justice Hugo L. Black: That was required by question 25.

Mr. Wilmer: Well, the broadness of the question states all of the decisions.

Justice Hugo L. Black: Well, it was required you said.

Mr. Wilmer: It would do it in my judgment Your Honor.

Justice Hugo L. Black: We could proceed on the assumption that she has been asked if she belong to the Communist Party and has said no.

Mr. Wilmer: We would accept it on its face value among something --

Justice John M. Harlan: Of course your question is a little broader, it's not on communist party but other subversive organizations.

Mr. Wilmer: Correct.

Justice John M. Harlan: And therefore I would suppose that a failure to answer the party wouldn't necessary say address if this question is proper on 27, so that you don't have to bear it true and find out which of the organizations maybe subversive and so forth.

Mr. Wilmer: I'm trying to make that point Your Honor that we do not have the facilities to chase down each organization and we feel that if someone knows it that she tell us but we do disagree with a notion that they are oblige to research and that all they need to say is I don't know if they don't know.

Justice Hugo L. Black: Now I would ask you a question at that.

Mr. Wilmer: Yes Mr. Justice Black.

Justice Hugo L. Black: In view of your answer that further have when she was asked to state all of the organizations that she belong to since she had been 16 years old.

Was that asking her to state if she had been a communist just the same as 27 more on?

Mr. Wilmer: My interpretation of that question Your Honor is really that it is a duplication of 27.

Justice Hugo L. Black: That is a duplication?

Mr. Wilmer: Yes, I --

Justice Hugo L. Black: And she did answer?

Mr. Wilmer: She didn't answer 27.

Justice Hugo L. Black: She stated the things she said she's belong to.

Mr. Wilmer: Yes, I'm sure that is right Your Honor.

Chief Justice Warren E. Burger: I think you have just one minute left Mr. Baird.

Argument of Peter D. Baird

Mr. Baird: One minute I'll take.

I would like to respond to Mr. Justice White's question about the Fifth Amendment.

It was raised in a letter to Mr. Wilmer and the committee and this is part of the record.

It is in June 27, 1968 in a form of a letter were Spevack versus Klein was discussed and there was a memorandum attached to that where the application of the Fifth Amendment to the bar admission process was discussed and Mr. Wilmer's brief that there was a statement that she did not assert the right of self-incrimination but this is in a letter dated July 31, 1969.

Mr. Wilmer sent to Mr. Davis, the clerk of this Court stating that that was an incorrect statement that in fact she had asserted the privilege.

Justice Hugo L. Black: Of what?

Mr. Baird: Pardon me.

Justice Hugo L. Black: Privilege of what?

Mr. Baird: Against self incrimination, the Fifth Amendment right.

Justice Hugo L. Black: Was it at the time she answered this question a crime against the federal Government to belong to an organization which is pledged to overturn the Government by force.

Mr. Baird: By literal reading at the Smith Act I would say yes.

Justice Byron R. White: But she answered the question 25?

Mr. Baird: Answered question 25.

Justice Byron R. White: And why did she refuse to answer that?

Mr. Baird: Because we were required Mr. Justice White under Konigsberg and Anastaplo to answer that question which called for the names of organizations.

She was specifically directed by the mandate in those cases we believe to answer that kind of a question.

Justice Byron R. White: What if the question 25 is to state whether you are a member of the Communist Party and also state all other organizations of which you are a member.

Would you have had the right to assert the privilege in any respect?

Mr. Baird: Not at that point at all, no.

Justice Byron R. White: Why not?

Mr. Baird: Because I think Konigsberg and Anastaplo required the pain of being a --

Justice Byron R. White: Would you take you're entitled to assert the privilege of self incrimination as the first part of question 27?

Mr. Baird: No, I believe the first part with respect to the name of the communist party, she does not have that right however --

Justice Byron R. White: You say that the State may and in spite of the privilege as Mrs. Baird, are you a member of the communist party?

Mr. Baird: Under Konigsberg and Anastaplo.

Justice Byron R. White: Well, that is but I want to know what you're asserting here.

Are you asserting the privilege against self-incrimination to shield Mrs. Baird from having to answer the question, “Are you a member of the communist party?”

Mr. Baird: I would say we cannot stand on that particular basis before this Court because of our answer to question 25.

Justice Byron R. White: Well the, what -- it would respect to what, are you asserting the privilege in this litigation?

Mr. Baird: We are asserting the privilege to question 27 which requires us to make a determination of other groups in that category that she has already listed.

Justice Byron R. White: Was that a Fifth Amendment claim or a First Amendment claim.

Mr. Baird: I, its both.

Justice Byron R. White: And how is it a Fifth Amendment claim?

It is a, you you've said I am.

Let's assume you had answered I am a member of the Communist Party.

Do you think then that -- do you think then that even though you had answered that question you could also assert the privilege and say I am privileged not to characterize the Communist Party?

Mr. Baird: Well, there may be other groups Mr. Justice White such as I can maybe the STS is considered subversive, maybe they are in response to another question.

Maybe there are other organizations which she can draw the line on and question 27 is.

Justice Byron R. White: We have a question 27 only refers to the organizations that you listed in 25?

Mr. Baird: Well, it in effect would have that practical result, yes.

Justice Byron R. White: And so you looked at those questions that those organizations you listed in 25 and you ask yourself are there any of these groups subversive, I have listed them or any of this group subversive, you think that is a, you have a Fifth Amendment right then refuse to answer that question?

Mr. Baird: Yes.

Chief Justice Warren E. Burger: Thank you Mr. Baird.

Thank you for your submission gentlemen.

The case is submitted.

Featured:

Baird v. State Bar of Arizona - Oral Argument

Thu, 23 Aug 2012 18:10:39 +0000

Case:

Baird v. State Bar of Arizona

Related Transcript:

15_19691209-argument

Transcript:

Argument of Mark Wilmer

Chief Justice Warren E. Burger: I think, Mr. Baird you have one minute left and I take it you're reserving that for a rebuttal.

Mr. Wilmer, you may proceed.

Mr. Mark Wilmer: May it please the Court.

I think at the outset it might be appropriate and go serviceable to the Court, if we would first put in proper relationship, proper context the record in the court below.

I would say at the outset that the position of the respondent is not one of an advocate either way so far as this question of finality is concerned.

As we review our responsibility here to simply to bring to the Court the facts with respect to this question and then proceed on to as best we can explain the other proceedings in the Court below.

I think the best way to put the record in proper relationship to the actual facts is perhaps to begin with the response which was filed by the committee in the Supreme Court of the State of Arizona.

Now, it is my understanding from reading rules of this Court that papers that are certified by the clerk of the lower court are part of the record and subject to being considered in this case.

The original, however, is in the record and I would like briefly to refer to that with the Court's permission.

I say that for this reason that we have indicated our position as one of simply here are the facts we made us on the citing of the case now as any other time if in fact this Court has jurisdiction.

Nothing could be chored from the true fact.”

Justice John M. Harlan: Are you reading from the --

Mr. Mark Wilmer: I'm reading Your Honor and then I'm sorry this is not in the printed appendix, Your Honor.

It is in the original of the respond certified by the clerk of the Arizona Supreme Court to this Court.

Justice John M. Harlan: And why isn't this on the appendix?

Mr. Mark Wilmer: Well, Your Honor, I must say it frankly, I didn't suppose it would be needed at the time when I read the appendix as certified.

In other words, we did not have a complete view of the flow of the case in this Court as to what or would not be material.

Because I read your rules and I assume I am correct.

Even though it is not printed in the appendix, nonetheless say for this part of the certified record, it may be referred to before this Court.

Of course if that is not true, I should not do so.

Justice John M. Harlan: Is the paper actually physically in the clerk's office?

Mr. Mark Wilmer: It should be, Your Honor.

Justice John M. Harlan: Oh, thank you.

Mr. Mark Wilmer: This would be the responds of the committee to the petitioner's order to show cause and may I please the Court in this Arizona Supreme Court.

Justice John M. Harlan: (Voice Overlap) I'm reading that again then since we have all have the cause.

Mr. Mark Wilmer: Yes Your Honor, I'm sure.

I'm sorry I have finally realized the moment (Inaudible).

The committee has not rejected the application of Sarah Baird and does not intend to do so, unless and until further facts appear which would warrant this rejection.

In other words, this was the discussion of counsel prior to the initiation of this proceeding.

Justice John M. Harlan: Could I ask you a question Mr. Wilmer?

Mr. Mark Wilmer: Yes, Your Honor.

Justice John M. Harlan: Assuming this litigation never been brought and Mrs. Baird simply persisted in her view that she didn't have to answer the question.

What would have happen to her application to the bar, her admission to the bar?

Mr. Mark Wilmer: Her application, Your Honor, which still as it is today sitting on our shelves waiting for her to either move her mandamuses to complete the processing of it or something else would have happen.

In our position of that may I say this briefly Your Honor.

The Committee on Examinations and Admissions is a criterion hand made of the Arizona Supreme Court.

Justice John M. Harlan: Yes.

Mr. Mark Wilmer: We have no authority other than that which the Court gives us and I might say if it should become of consequence, the entire rules of the Arizona Supreme Court that are in volume I believe it is 17 of West Publishing Companies of Arizona revised statues.

They govern, they limit, they set to the extent of our authority.

We have no inherent authority or any kind, the rights other than oath givens by the rules.

Therefore, when the Court says to us, ask these questions and they're set out verbatim and this is one of them.

Get the answers from them and then you proceed to certify to this Court your opinion.

We have no choice as far as we're concerned, we are stymied.

We cannot reject it much more as we could if we want to be arbitrary, perhaps we should.

I don't know but the facts are that in less and until that question is answered or someone tells us that we most do something else that case with that matter we'll say it as it is.

Is that accurate?

Mr. Mark Wilmer: Only to this extents, Your Honor.

The committee has no authority one way or the other to admit or reject anyone.

We merely make a recommendation to the Arizona Supreme Court does the admission, does the rejection.

Now, whether she should bring a mandamus and in that faction call upon the Arizona Supreme Court to make an effective ruling that is not automated within our providence.

I would simply say that as are the moment at least, the Arizona Supreme Court has been told by the committee.

We haven't made our decision.

We are unable to make a decision and therefore we submit the matters as it is and the Court simply said, “Well we deny the petition, you should complete due process in this petition.”

Now, whether that amounts to finality or not within the rule of this Court, I don't know, I express the opinion as to it, I simply bring it to the Court's attention.

This would not necessarily cause us to reject her application.

Now, I say that for this position for this reason if it please the Court.

We have had here what I would term some rather fancy steps down the sidelines, so to speak, of what words mean.

I believe that as we proceed, we'll find the committee made it an unequivocally and plainly apparent to Mrs. Baird.

We were not concern with what her beliefs were such.

We are not concerned with looking inside her heart to see what she believe or didn't believe in.

Now, a fair reading, I believe if it please the Court of the committee's a letter to Mr. Allen.

The Committee's response to the Arizona Supreme Court have our response here indicates simply one thing whether we use the word "belief" or whether we use the word "view"1 or whatever word we use.

We are concerned with one thing.

I heard yesterday the questioned ask if Mr. Baird would prefer the question he presented here whether the record he's made in the court below or here.

And I believe he said here.

I have to confess surprise.

I wrote them both and I really didn't think I was saying anything different one time than the other.

Justice Thurgood Marshall: Mr. Wilmer.

Mr. Mark Wilmer: Yes, Your Honor.

Justice Thurgood Marshall: The statement in your brief, you want to know whether not Sara Baird is only if she is found to actively believe.

Mr. Mark Wilmer: That is right.

Justice Thurgood Marshall: What that meant?

Mr. Mark Wilmer: Below?

Your Honor, I meant by that that she was prepared to go out and walk up and down the streets and take other step necessary to advance.

Justice Thurgood Marshall: Well, let's leave it if she's willing to walk up and down the streets.

Mr. Mark Wilmer: Pardon, Your Honor.

Justice Thurgood Marshall: Well, let's take the first one.

Suppose she is willing to walk up and down the street.

Mr. Mark Wilmer: Advocating the Government -- overthrow the Government by force and violence?

Justice Thurgood Marshall: Yes.

Mr. Mark Wilmer: I would say if it please the Court that number one that that would contravene the Canon of Ethics, which said you shall do nothing to bring at disrepute the profession of the law or the Court.

Justice Thurgood Marshall: Well, I supposed he catch up at a sign which says I don't like Colorado.

Mr. Mark Wilmer: I don't like which one?

Justice Thurgood Marshall: Colorado or the United States.

Mr. Mark Wilmer: I would have no problem with that at all.

I think that's her privilege.

That's her privilege.

Justice Thurgood Marshall: Where is the line you're going to get on this?

Mr. Mark Wilmer: The line that I draw Your Honor is when you talk about destruction of this Government by force and violence.

Justice Thurgood Marshall: Believe in it or do it?

Mr. Mark Wilmer: Pardon.

Justice Thurgood Marshall: Just to believe in it?

Mr. Mark Wilmer: The committee's position Your Honor was not just a belief.

Your committee, the committee's position was actively accept and actively advanced that philosophy and that solution.

Justice John M. Harlan: Well, I think you get much of this for saying (Inaudible).

Mr. Mark Wilmer: Yes, certainly.

Justice John M. Harlan: Oh, I see.

Mr. Mark Wilmer: We couldn't care a less what are beliefs are in any field except that which endangers directly upon the validity and the utility of her service as a lawyer as to those matters we are concerned and we're critically concerned.

Now, --

Justice Thurgood Marshall: Does this means that you do some act in addition to believe it?

Mr. Mark Wilmer: I would say your (Voice Overlap) the occasion is right, you would do it, yes and I don't believe that person should be a lawyer.

Justice John M. Harlan: Those first statutes that you're talking about are not incorporated in the question.

Mr. Mark Wilmer: They would have been incorporated in the questions asked.

Justice John M. Harlan: You have to take a position that this is preliminary?

Mr. Mark Wilmer: Yes, Your Honor.

Justice John M. Harlan: Preliminary that needs further investigation.

Mr. Mark Wilmer: Our rules provide Your Honor that in making its investigation, the committee can conduct an informal or formal investigation.

Do you?

Or that point will you retire and negate the oath which you took?

Justice John M. Harlan: Could I ask you another question?

Mr. Mark Wilmer: Sure, Your Honor.

Justice John M. Harlan: How long has this questioned in the present form been part of the process and requirement for admission?

Mr. Mark Wilmer: Your Honor, I can't answer that that other than to say has been there for at least 10 years to my knowledge and I would assume many years prior to that.

I think it is not an --

Justice John M. Harlan: It has not been revised.

Mr. Mark Wilmer: Pardon.

Justice John M. Harlan: Has there been any attempts to revise it?

Mr. Mark Wilmer: No, as far as I know Your Honor.

The rules as they now -- that is these rules as they now stand are those that probably I answered four years ago but I can't swear to that, I don't remember.

It's been a long time, we'll put it that way.

Chief Justice Warren E. Burger: May I ask you another question?

Mr. Mark Wilmer: Yes, Your Honor.

Chief Justice Warren E. Burger: Does this application require an applicant to restate whether he or she has ever been convicted of a criminal act?

Mr. Mark Wilmer: If he has a usual question whether not they have been involved in fraud whether or not they have been bonded and if such, there had a bond claim it against him and have they been involved in any criminal actions?

Mr. Mark Wilmer: Yes.

Yes, I'm sure we're not going to say you refuse to tell us if you stole money somewhere so we're going to admit you anyway.

Mr. Mark Wilmer: I can say this in all honestly, Your Honor, we've admitted people at their younger age have been guilty of burglary, statutory rape or what have she questioned have been rehabilitated?

Do they now measure up to the standards of who or what a person should be or appear she desires to be a lawyer?

Justice Thurgood Marshall: Mr. Wilmer, you also said she had yes to 27, that wouldn't automatically bar.

Mr. Mark Wilmer: To 27?

Justice Thurgood Marshall: To the question in 27.

Mr. Mark Wilmer: No, it would not bar her.

No, no, no Your Honor.

It would not.

Justice Thurgood Marshall: You then have a hearing and sort of hearing then.

Mr. Mark Wilmer: We would then endeavor to find out how deep did that belief lie.

And if it lay on the surface and then simply a childish thing, a passing fancy that's one thing.

If it descended to the depths of an embedded truth, fanatical, getting the Government should be destroyed.

I therefore then feel it that person should not be admitted to practice law.

Therefore, we should not be permitted to inquire under thought processes connection with it.

1I do not read into the notion of assassination of public officials, members of the Congress or other persons which in positions of authority for the bad purpose.

I do not read that as a political activity or as a political belief which is subject to protection.

Justice Byron R. White: Do you --

Mr. Mark Wilmer: Yes, Mr. Justice White.

Justice Byron R. White: Do you feel that the Fifth Amendment claim is open in this case?

Mr. Mark Wilmer: Incrimination?

Justice Byron R. White: Yes.

Mr. Mark Wilmer: I would not raise the point that it was not -- that is was not adequately raised Your Honor.

I would not raise that because I think at least we were unnoticed to the fact that she deserves that.

Mr. Mark Wilmer: The answer to the question as given on the, in their, on the affidavit was not applicable.

I frankly do not --

Justice Byron R. White: Were there any correspondents or any conferences where the --

Mr. Mark Wilmer: Yes, I would have to say Your Honor my recollection is that probably it was raised.

Justice Byron R. White: The Fifth Amendment was raised --

Mr. Mark Wilmer: Yes I would say it.

Justice Byron R. White: Without refusing the answer to the question.

Mr. Mark Wilmer: I think it was Mr. Baird, I'm sure I can qualify my answer one where the other be but my recollection inside in this discussion with Mr. Allen and in related matters that at least to put the point we'd brought up that this amounted to incrimination.

Justice Byron R. White: So, was it -- it was urged in the Supreme Court of Arizona?

Mr. Mark Wilmer: Well, Your Honor the problem with that year that there's the brief, relatively brief petition filed.

The relatively brief response with the memorandum and the argument was not reported.

Justice Byron R. White: Was there a memorandum supporting the petition?

Mr. Mark Wilmer: Yes.

Yes.

Justice Byron R. White: Did that mention the Fifth Amendment?

Mr. Mark Wilmer: Your Honor, I have to confess, which I don't know.

If it would be -- it would be with the file but I don't have a sharp enough recollection at the moment to answer Your Honor and be of service to you.

I would simply say with respect to the Klein case which of course says that the lawyer may not be disbarred for refusing to answer the question that is relative at the Fifth Amendment?

I think that that case is not readily distinguishable.

I don't like to use this illustration but I can't think of none more apt and that is this.

In Arizona and Massachusetts and Florida and Washington, they have what is called dog race and in that particular activity which is per mutual betting situation.

Dogs that have never run are what are called schooled.

In other words they are run through the race as if it was a race.

There time is recorded, the whole thing is recorded just like any race track in which way with desire to know about any dog or horse.

And based on that when they do start running they are (Inaudible).

Well, now the reason that is you has a track record.

I would just say and closely if it please the Court that there are some very sound reasons for the formality of this affidavit and the application.

I realized it is perhaps since burdens at some of the outset but without attempting if it please the Court to appear critical of our law schools.

This is a type of practice that is very, very important that all these things declared before you may practice.

We think that tends to bring to their mind and perhaps the consciousness of the importance of this.

I might just say it in one more other thing.

Seven or eight years ago, Ohio Supreme Court at the committees request, adopted a rule that says you can't be admitted to practice until you pass the examination of professional ethics.

You can't be admitted until you have passed that examination.

I will say this that we no longer have applicant who spell Canons of Ethics, C-A-N-N-O-N-S then I can spell up.

We do not catch anyone on the basis of that requirement.

This was a very, very serious thing that you're going into.

These questions are necessary because unless you live a road of spotless life you don't belong in our profession.

Justice John M. Harlan: Can I actually ask the number of questions perhaps they're a little outside the record that I think it's appropriate to ask them in understanding that in any other way.

In light of what you say your standards would be in Mrs. Baird in answering this question going further in satisfying yourself that this was something more than that belief in the abstract's answer.

Have you ever asked your Court to change the form of that question to incorporate those elements in it?

Mr. Mark Wilmer: No, but I think perhaps that this might be an indication we should Your Honor.

I like to say these are old, old questions and --

Justice John M. Harlan: Yes.

Mr. Mark Wilmer: I'm not at all here defending them.

I'm simply here saying that these are what we lived with.

Mr. Mark Wilmer: Your Honor, they are both the management if they're now and raising the question of residency as being a right or any residency in the light of a Shapiro case.

We're now having a span of objections to any requirement of residency because of Shapiro case.

So, that for that as to this one question they seem to have become reconciled answer.

Justice Potter Stewart: As I understand it even on the full record that is here, we do not have Mrs. Braid's answers to question 25, is that --

Mr. Mark Wilmer: No, Your Honor but I would not make a point of that because my recollection is at Mrs. Braid did answered, if she haven't been sure we wouldn't made a point of it.

Justice Potter Stewart: Would there be any objection either of you who is supplementing this record if this is an admitted fact that she answered them and do submit the --

Mr. Mark Wilmer: I'd be glad to Your Honor.

Justice Potter Stewart: Submit the answers.

Mr. Mark Wilmer: No (Voice Overlap).

Justice Potter Stewart: I myself I'd like to see the record supplemented.

Mr. Mark Wilmer: If I had realized it that we would have it here Your Honor but we'd be very happy to do it, supply it ourselves.

Mrs. Baird can supply whatever she can be.

Justice Hugo L. Black: Would she have been required on the answer in answering question 25 to state that she had been a member of the Communist Party, if she had?

Mr. Mark Wilmer: Yes.

Justice Hugo L. Black: That was required by question 25.

Mr. Mark Wilmer: Well, the broadness of the question states all of the decisions.

Justice Hugo L. Black: Well, it was required you said.

Mr. Mark Wilmer: It would do it in my judgment Your Honor.

Justice Hugo L. Black: We could proceed on the assumption that she has been asked if she belong to the Communist Party and has said no.

Mr. Mark Wilmer: We would accept it on its face value among something --

Justice John M. Harlan: Of course your question is a little broader, it's not on communist party but other subversive organizations.

Mr. Mark Wilmer: Correct.

Mr. Mark Wilmer: I'm trying to make that point Your Honor that we do not have the facilities to chase down each organization and we feel that if someone knows it that she tell us but we do disagree with a notion that they are oblige to research and that all they need to say is I don't know if they don't know.

Justice Hugo L. Black: Now I would ask you a question at that.

Mr. Mark Wilmer: Yes Mr. Justice Black.

Justice Hugo L. Black: In view of your answer that further have when she was asked to state all of the organizations that she belong to since she had been 16 years old.

Was that asking her to state if she had been a communist just the same as 27 more on?

Mr. Mark Wilmer: My interpretation of that question Your Honor is really that it is a duplication of 27.

Justice Hugo L. Black: That is a duplication?

Mr. Mark Wilmer: Yes, I --

Justice Hugo L. Black: And she did answer?

Mr. Mark Wilmer: She didn't answer 27.

Justice Hugo L. Black: She stated the things she said she's belong to.

Mr. Mark Wilmer: Yes, I'm sure that is right Your Honor.

Chief Justice Warren E. Burger: I think you have just one minute left Mr. Baird.

Argument of Peter D. Baird

Mr. Peter D. Baird: One minute I'll take.

I would like to respond to Mr. Justice White's question about the Fifth Amendment.

It was raised in a letter to Mr. Wilmer and the committee and this is part of the record.

Mr. Wilmer sent to Mr. Davis, the clerk of this Court stating that that was an incorrect statement that in fact she had asserted the privilege.

Justice Hugo L. Black: Of what?

Mr. Peter D. Baird: Pardon me.

Justice Hugo L. Black: Privilege of what?

Mr. Peter D. Baird: Against self incrimination, the Fifth Amendment right.

Justice Hugo L. Black: Was it at the time she answered this question a crime against the federal Government to belong to an organization which is pledged to overturn the Government by force.

Mr. Peter D. Baird: By literal reading at the Smith Act I would say yes.

Justice Byron R. White: But she answered the question 25?

Mr. Peter D. Baird: Answered question 25.

Justice Byron R. White: And why did she refuse to answer that?

Mr. Peter D. Baird: Because we were required Mr. Justice White under Konigsberg and Anastaplo to answer that question which called for the names of organizations.

She was specifically directed by the mandate in those cases we believe to answer that kind of a question.

Justice Byron R. White: What if the question 25 is to state whether you are a member of the Communist Party and also state all other organizations of which you are a member.

Would you have had the right to assert the privilege in any respect?

Mr. Peter D. Baird: Not at that point at all, no.

Justice Byron R. White: Why not?

Mr. Peter D. Baird: Because I think Konigsberg and Anastaplo required the pain of being a --

Justice Byron R. White: Would you take you're entitled to assert the privilege of self incrimination as the first part of question 27?

Mr. Peter D. Baird: No, I believe the first part with respect to the name of the communist party, she does not have that right however --

Justice Byron R. White: You say that the State may and in spite of the privilege as Mrs. Baird, are you a member of the communist party?

Mr. Peter D. Baird: Under Konigsberg and Anastaplo.

Justice Byron R. White: Well, that is but I want to know what you're asserting here.

Are you asserting the privilege against self-incrimination to shield Mrs. Baird from having to answer the question, “Are you a member of the communist party?”

Mr. Peter D. Baird: I would say we cannot stand on that particular basis before this Court because of our answer to question 25.

Justice Byron R. White: Well the, what -- it would respect to what, are you asserting the privilege in this litigation?

Mr. Peter D. Baird: We are asserting the privilege to question 27 which requires us to make a determination of other groups in that category that she has already listed.

Justice Byron R. White: Was that a Fifth Amendment claim or a First Amendment claim.

Mr. Peter D. Baird: I, its both.

Justice Byron R. White: And how is it a Fifth Amendment claim?

It is a, you you've said I am.

Let's assume you had answered I am a member of the Communist Party.

Do you think then that -- do you think then that even though you had answered that question you could also assert the privilege and say I am privileged not to characterize the Communist Party?

Mr. Peter D. Baird: Well, there may be other groups Mr. Justice White such as I can maybe the STS is considered subversive, maybe they are in response to another question.

Maybe there are other organizations which she can draw the line on and question 27 is.

Justice Byron R. White: We have a question 27 only refers to the organizations that you listed in 25?

Mr. Peter D. Baird: Well, it in effect would have that practical result, yes.

Mr. Peter D. Baird: Yes.

Chief Justice Warren E. Burger: Thank you Mr. Baird.

Thank you for your submission gentlemen.

The case is submitted.

Featured:

Whitehill v. Elkins - Oral Argument

Thu, 23 Aug 2012 18:11:55 +0000

Case:

Whitehill v. Elkins

Media File:

25_19671016-argument.mp3

Related Transcript:

25_19671016-argument

Transcript:

Argument of Sanford Jay Rosen

Mr. Sanford Jay Rosen: -- from the statute, the definitional provisions of which were identical to those voided in the Baggett and Dombrowski cases are unconstitutionally fraud, vague and indefinite.

The facts in this case are comparatively simple.

It's a direct appeal from a final order and judgment of a statutory three-judge court sitting in Maryland, dismissing the appellant's complaint on the grounds of a prior precedent to this Court.

The appellant, a Quaker, is an author of works of fiction and nonfiction, and a teacher of Creative Writing at the Johns Hopkins University.

He was invited in the summer of 1966 to teach Creative Writing at the University of Maryland for the academic year of 1966-1967.

He was to be paid $7,000 over 10 months.

In July, he received by mail a copy of the contract to be signed and certain other documents including the certification of applicant for public employment which if I may I'd like to read to the Court.

It's captioned required by law, Article 85A, paragraph 13 Annotated Code of Maryland 1957.

It appears by the way in the transcript at page 11 in the appendix of the appellant's brief at page 16A.

It states, “I, -- leaving space for the name --, do hereby certify that I am not engaged in one way or another in an attempt to overthrow the government of the United States, or the State of Maryland, or any political subdivision of either of them, by force or violence.

I further certify that I understand the aforegoing statement is made subject to the penalties of perjury prescribed in Article 27, Section 439 of the Annotated Code of Maryland,” -- and there's a space for the date and the signature.

Justice John M. Harlan: (Inaudible)

Mr. Sanford Jay Rosen: The appellant signed the contract, executed the other papers with the exception of the loyalty of.

He returned these documents and advised his correspondent in a separate letter that on conscientious grounds he would not sign the required oath.

He offered to teach by the way without compensation pending adjudication of the constitutional issues.

He received a reply informing him that the university could not accept his services until he had executed and filed the oath.

On August 19, 1966, he filed a class action.

Justice John M. Harlan: 02.44 --

Mr. Sanford Jay Rosen: I beg your pardon sir.

Justice John M. Harlan: Do you think this oath is more or less different from the oath that the (Inaudible).

Mr. Sanford Jay Rosen: More or less specific?

Justice John M. Harlan: Yes.

Mr. Sanford Jay Rosen: I would say in the context to the statute which is the only way that the oath can be read, it's much less specific.

Justice John M. Harlan: Oh, what I am trying to (Inaudible) from the statute.

Mr. Sanford Jay Rosen: Well, it's the appellant's --

Justice John M. Harlan: Is this the only oath that he was required to sign?

Mr. Sanford Jay Rosen: At this time, yes Justice Harlan.

Justice John M. Harlan: (Inaudible)

Mr. Sanford Jay Rosen: However, he has to take this oath as authorized under a specific statute and it's our contention that the Gerende case, if that's what you're referring to Justice Harlan, does not really hold for the proposition that the oath can be read without the statute.

And if it does, the subsequent decisions of this Court will make it quite clear that an oath cannot be considered outside of the context of its statute.

And --

Justice John M. Harlan: And it sort of incorporated all of the statutes in this (Inaudible).

Mr. Sanford Jay Rosen: We believe that that's what the Elfbrandt case indicates.

Justice John M. Harlan: I know, but what about the oath that was sworn?

Mr. Sanford Jay Rosen: The oath itself is quite --

Justice John M. Harlan: The oath in reference to the rest of the statute is (Inaudible).

Mr. Sanford Jay Rosen: It has two references.

It has a caption and it also provides that it's subject to the penalties of perjury and the only way in which this could be subject to the penalties of perjuries on a statutory basis which is also a reference to the statute ultimately.

Justice John M. Harlan: Penalty of perjury in the different statutes --

Mr. Sanford Jay Rosen: Yes, but this would be statutory perjury and the only statute it provides for the oath happens to be the overact itself.

In addition, the phrase in one way or another we contend is unduly broad and vague.

But Your Honor --

Justice Abe Fortas: But suppose this oath stood alone.

Suppose the (Voice Overlap) --

Mr. Sanford Jay Rosen: If it stood alone --

Justice Abe Fortas: -- if we would go along with respect to its relationship to the statute, the implications in that relationship, suppose the teachers just declined to take this particular oath.

Mr. Sanford Jay Rosen: And that's all the statute said Justice Fortas.

Justice Abe Fortas: That's all?

Mr. Sanford Jay Rosen: Well this particular oath to me would still suggest is unduly vague to the extent that it has the phrase in one way or another in it which defies the definition --

Justice Abe Fortas: Yes, but it also got the phrase, overthrow the government by force or violence.

Mr. Sanford Jay Rosen: Certainly.

Justice Abe Fortas: And it didn't relate to overthrowing the Government in any other way, does it?

Mr. Sanford Jay Rosen: Well, but it says in one way or another.

That could --

Justice Abe Fortas: By force or violence.

Mr. Sanford Jay Rosen: By force or violence.

That could be read to mean the “in one way or another” phrase that mere adherence to an organization that's engaged in an attempt or about to be engaged in an attempt to overthrow the government by force --

Justice Abe Fortas: But of course, hasn't been so read?

Mr. Sanford Jay Rosen: It -- it's not clear.

The only judicial determination of the statute and oath other than the Gerende case is the Court of Appeals of Maryland's decision in the Shub case in 1950.

And while -- one could say that the Court of Appeals of Maryland attempted to narrow the construction of the actual statute, it certainly isn't clear and it's our position that the Court of Appeals reading of the statute would contemplate mere advocacy of abstract ideas within the ambit of the statute and therefore the oath.

And also mere membership, mere knowing membership in an organization, not even necessarily qualified to active membership and certainly not qualified to membership with specific intent to support the goals, the unlawful goals of the organization.

Justice Abe Fortas: Well is that your argument that the oath as construed by the highest court of the state, it means something more than it seems to say?

Mr. Sanford Jay Rosen: Well, our argument is that the oath as read with the statute as construed by the highest court of the state clearly contemplates that which this Court declared unconstitutionally broad and vague in Keyishian and Elfbrandt and Baggett.

Justice Abe Fortas: But I believe the statute out as it -- would you perhaps -- what is your presentation to us?

Mr. Sanford Jay Rosen: If the statute is just left out entirely, well --

Justice Abe Fortas: Yes.

Mr. Sanford Jay Rosen: -- we have great deal of difficulty leaving the statute out.

There's no other authority --

Justice Abe Fortas: I understand that.

Mr. Sanford Jay Rosen: -- in the oath.

Justice Abe Fortas: I understand that.

Mr. Sanford Jay Rosen: But leaving the statute out, it's our position that the phrase “in one way or another" which is a phrase admitted -- accepted by the Court of Appeals of Maryland and by this Court in the Gerende case has no definite meaning.

And if it does have a definite meaning, it's too broad.

Justice Abe Fortas: So it come back to reliance on that phrase for all of them on the construction of the act on the Shub case.

Mr. Sanford Jay Rosen: Well, if you insist Justice Fortas that we have to leave the statute out, I --

Justice Abe Fortas: I wasn't trying to insist that; I was trying to --

Mr. Sanford Jay Rosen: I do rely upon that phrase but we also make an --

Justice Abe Fortas: (Inaudible) relied on your (Voice Overlap) --

Mr. Sanford Jay Rosen: We also make another substantive argument with respect to the oath if it's read by itself and that is we believe that these negative disclaimers by themselves, by their very nature, violations of the First Amendment that -- just is across the board requirement that one say, “I am not disloyal”, whatever that means.

But that's a violation of the First Amendment.

In addition, we suggest as the brief amicus curiae of the AAUP did that this kind of an oath, not giving anybody an opportunity to explain or get clarification of the oath or explain his reasons for not stating he is not disloyal that by not giving any opportunity for a hearing or an explanation that the oath violates procedural due process in the First Amendment context.

Justice Abe Fortas: Would you say that if you required a teacher to swear that if he would uphold the constitution of the United States that would be unconstitutional.

Mr. Sanford Jay Rosen: That's a harder case Justice Fortas of course.

I think we might be willing to argue that there's no warrant for an across the board declaration by all persons but I think we might fall back to an intermediate position and suggest that if teachers were singled out as the only group to swear, only group among public employees that that would raise people protection problems for us if --

Justice Abe Fortas: Well, all federal employees have to take an oath to have effect?

Mr. Sanford Jay Rosen: Right.

Justice Abe Fortas: Are you suggesting that that would be unconstitutional for federal employees or in the group of federal employees?

Mr. Sanford Jay Rosen: No.

In this case, we don't think we have to reach the question whether an affirmative declaration of allegiance is unconstitutional.

We certainly see that there's a basis in the text of the constitution itself for this kind of a declaration.

So I can't answer that question so far as my client is concerned.

Definitively, we're faced with a negative disclaimer and it's not an affirmative declaration.

Justice Abe Fortas: (Inaudible)

Mr. Sanford Jay Rosen: We'd have a lot more trouble, I must admit with that affirming --

Justice John M. Harlan: You're not going to affirm (Inaudible).

Mr. Sanford Jay Rosen: Well, we do go so far as to suggest that a loyalty oath that requires a negative disclaimer, I am not disloyal, I am not a subversive person, I am not engaged in, that this carries such encored connotations that it is itself an undue burden on the First Amendment.

So far as an affirmative statement of allegiance is concerned, we don't go so far in this case as to argue that that would be unconstitutional.

We'd like to see that case before we had to address ourselves to the particular issue of course.

If I may proceed --

Justice John M. Harlan: What do you argue on one -- in one way or another the theory that one way or another (Inaudible)?

Mr. Sanford Jay Rosen: It could be taken to mean other than by force or violence and certainly even if read to be modified by force or violence, it could be taken to mean adherence to an organization engaged or about to be engaged and overthrow without any specific --

Justice John M. Harlan: (Inaudible)

Mr. Sanford Jay Rosen: That's right.

Justice John M. Harlan: In Maryland (Inaudible).

Mr. Sanford Jay Rosen: Well, that's not quite accurate Justice Harlan.

Maryland didn't do that and Attorney General of Maryland made a recommendation.

Just as an Attorney General in Gerende stated that he would advise various officials in the state to give the oath that was approved or apparently approved in Gerende.

As a matter of fact Justice Harlan, that oath was never consistently given, there are subdivisions in this -- in the State of Maryland they're still giving the oath in terms of the definitional phrase in Section 1 of the Act.

Justice John M. Harlan: So far as this Act is concerned (Inaudible).

Mr. Sanford Jay Rosen: Right.

Justice John M. Harlan: Do you not?

Mr. Sanford Jay Rosen: That's right.

So far as the oath that Mr. Whitehill was requested or required to sign, it did not include the membership provision.

I will argue further along that the Attorney General probably has no authority or not adequate authority, or power to rewrite the oath and you certainly has adequate authority or power to rewrite the statute which was judicially construed albeit not as clearly as we would like in the Shub case.

Basically, appellant agrees that the first issue before the Court is the current status of the Gerende decision.

However, before addressing or readdressing myself as the case maybe to Gerende, it might be appropriate for me to just outline briefly the four substantive or meritorious grounds on which appellant contends that the oath and the statute are unconstitutional.

First, I suggest that it's our position that the oath and the statute were unconstitutionally broad, vague and uncertain in degradation of the Fourteenth Amendment Due Process Clause.

Second, we contend that this indiscriminate loyalty of or non-disloyalty disclaimer, otherwise unconstitutionally infringes the First and Fourteenth Amendment freedoms of belief, association and academic freedom.

Third, in violation of procedural due process, the oath and the statute further infringe the First and Fourteenth Amendment interests by denying public employment without affording any hearing on questions of loyalty or subversiveness and by shifting burdens of proof with respect to these questions to the applicant.

And fourth, together the statute and the oath constitute an unlawful bill of attainder.

Now this Court's decision in Gerende, the 1951 very brief per curiam decision in Gerende involved Section 15 of the Act, so-called Candidate's Oath.

In Gerende, the Court relied upon the Court of Appeals of Maryland's construction of that provision in Shub versus Simpson.

Perhaps if I could refresh Your Honor's memories with respect to Gerende, in that case you said, “The scope of the state law was passed on -- in Shub".

We read this decision to hold that to obtain a place on a Maryland ballot for candidate need only make oath that he is not a person who is engaged "in one way or another in the attempt to overthrow the government by force or violation,” and that he is not knowingly a member of an organization engaged in such an attempt.

At the bar of this Court, the Attorney General of the State of Maryland declared that he would advise the proper authorities to and accept an affidavit in these terms to satisfying in full the statutory requirement.

Under these circumstances and with this understanding, the judgment of the Court of Appeals is affirmed.

Now appellees insist that the decision in Gerende in effect severs the certification or oath from the statute and insulates it, claimed innocuous on its face as we've just discussed from constitutional attack.

Appellant respectfully disagrees.

First, the certification is not innocuous on its phase.

Both the Supreme --

Justice John M. Harlan: What happened if Professor Whitehill actually (Inaudible)?

Mr. Sanford Jay Rosen: Professor Whitehill is still teaching at the Johns Hopkins University, he recently published a novel as a matter of fact.

But he lives in Maryland.

He was ready, willing and able to fulfill the contract at any time during his term.

He is currently a lecturer in English, teaching Creative Writing at Johns Hopkins.

Justice John M. Harlan: (Inaudible)

Mr. Sanford Jay Rosen: The University of Maryland, the College of Art.

Justice John M. Harlan: How long was he a part of the --

Mr. Sanford Jay Rosen: For the academic year 1966-1967, an academic year which would have ended in June of 1967th.

Justice John M. Harlan: (Inaudible)

Mr. Sanford Jay Rosen: I don't believe so Your Honor.

No more than there was in Bond versus Floyd last term.

Professor Whitehill would have claimed on back wages at very least.

Justice John M. Harlan: How much is his (Voice Overlap) --?

Mr. Sanford Jay Rosen: $7,000.

Justice John M. Harlan: (Inaudible)

Mr. Sanford Jay Rosen: I have no idea.

Justice John M. Harlan: (Inaudible)

Mr. Sanford Jay Rosen: Well this would have been an addition to his job at Hopkins.

There is no real question of mitigation.

This was a one-day or two-day a week operation and it's not the sort of thing that a man could go out and mitigate.

He was filling in for a specific post, you don't have too many instructors of Creative Writing around nor do you in -- in a given state have too many opportunities to teach Creative Writing.

Justice John M. Harlan: The question of mootness (Inaudible).

Mr. Sanford Jay Rosen: The question of mootness has not been raised and as I suggested, the Bond case indicates that it would not appropriately be raised and there's Johnson versus Branch, the Fourth Circuit decision dealing with dismissal of certain school teachers.

It indicate that the damages themselves would be adequate -- of course further there -- this is a continuing situation maybe not directly with respect to Professor Whitehill.

But we have a file of additional people and could be -- we could come in to court tomorrow and file a new suit in the District of Maryland and if need to be there, or continually cases coming up in Maryland at this time.

Now as we suggested, the certification is not innocuous on its face.

First, the Supreme Court and the Maryland Court of Appeals authorized a prohibition of knowing membership in an organization engaged in an attempt to violently overthrow the government --

Justice Thurgood Marshall: Mr. Rosen, suppose you struck one way or another --

Mr. Sanford Jay Rosen: Well if you struck in one way or another Justice Marshall, I supposed that the oath would become comparatively unvague.

However, we would still rely upon our two or three other arguments that first this kind of a negative oath, a negative disclaimer itself violates the First Amendment.

It's taken up on point too in our brief in effect.

And second, that by not affording any procedural --

Justice Thurgood Marshall: You mean, you can't ask somebody welcome after he intend to violate the laws of the United States?

Mr. Sanford Jay Rosen: That might be what we've been forced to ask Justice Marshall.

We -- we're not saying that you can't in all circumstances certainly ask somebody whether he will adhere to the laws of the United States.

The implications of asking the negative as Dr. Glass -- eventually Glass suggested, it's like asking a man whether he's being unfaithful.

The implication carries --

Justice Thurgood Marshall: Would you mind taking the oath when you became a member of the bar?

Mr. Sanford Jay Rosen: Did I mind taking the oath --

Justice Thurgood Marshall: Yes.

Mr. Sanford Jay Rosen: -- when I became a member of the bar?

It was an affirmative oath as I recall.

I might say, I didn't mind taking the oath for my employment with the University of Maryland.

I found that it exceedingly offensive.

Justice Thurgood Marshall: No, I was talking about the bar.

Mr. Sanford Jay Rosen: No, I did not mind taking the oath which as I recall, in Connecticut it was an oath or affirmation to support the laws and constitution.

Justice William J. Brennan: I think, would it be any different to -- do you ask the question (Inaudible)?

Mr. Sanford Jay Rosen: That's true.

And of course, the recent decisions of this Court in the Konigsberg and staff locations indicated that this kind of inquiry might be appropriate.

Argument of Justtice White

Mr. Justtice White: Do you think (Inaudible)

Rebuttal of Sanford Jay Rosen

Mr. Sanford Jay Rosen: Well we have suggest -- we have suggested in our oath that -- I mean, in our brief that the -- that particularly with respect to the question of subversiveness which --

Rebuttal of Justtice White

Mr. Justtice White: (Inaudible)

Rebuttal of Sanford Jay Rosen

Mr. Sanford Jay Rosen: That's a different area.

It doesn't involve the First --

Rebuttal of Justtice White

Mr. Justtice White: (Inaudible)

Rebuttal of Sanford Jay Rosen

Mr. Sanford Jay Rosen: I supposed one can be asked that it's germane to whether or not you're -- you should be admitted to practice.

Rebuttal of Justtice White

Mr. Justtice White: (Inaudible)

Rebuttal of Sanford Jay Rosen

Mr. Sanford Jay Rosen: I beg your pardon?

Rebuttal of Justtice White

Mr. Justtice White: Even if it's a negative oath.

Rebuttal of Sanford Jay Rosen

Mr. Sanford Jay Rosen: It's just a negative oath, Justice White.

It's not in the First Amendment area.

What's you're asking Mr. Whitehill is to say is I am not subversive.

That is, I do not hold or act upon certain political ideals which is purely First Amendment matter.

If you ask a man who is to be admitted to the practice of law, have you ever been convicted of a felony?

That doesn't to me raise very many First Amendment implications.

We're in the area of the First Amendment and this as the Court will notice is a very special area and distinguishable at least on that basis.

Justice Abe Fortas: This is all raised in the present tense to with me.

I am not indeed -- he's got to say --

Mr. Sanford Jay Rosen: Well --

Justice Abe Fortas: -- I'm not indeed in an attempt to overthrow the government of the United States by force and violence.

Mr. Sanford Jay Rosen: Well that raises precisely --

Justice Abe Fortas: (Inaudible)

Mr. Sanford Jay Rosen: -- one of the grounds --

Justice Abe Fortas: -- that this is quite immaterial direct test but it's rather a resilient thing to require a grown man to say as (Inaudible).

But that's not our problem.

We asked him to say whether -- as of this moment of time, is he engaged in attempting to overthrow --

Mr. Sanford Jay Rosen: That's right.

Justice Abe Fortas: -- the Government of the United States by force and violence?

Well, that's very different from asking are you engaged or have you engaged or do you intend to engage in subversive activities.

Mr. Sanford Jay Rosen: Well that's what the oath says and I agree with Justice Fortas, it is rather silly.

Justice Abe Fortas: But you also have said that he is being required to say that he is -- won't engage in a subversive activity --

Mr. Sanford Jay Rosen: Well --

Justice Abe Fortas: -- that's not this one.

Mr. Sanford Jay Rosen: Well, we say of course that the phrase “in one way or another” means subversive activities of course --

Justice Abe Fortas: But all of that is modified, there's a comma and it's modified by the phrase by the course of violence.

Mr. Sanford Jay Rosen: Well, the Court --

Justice Abe Fortas: I suppose you can -- the idea of the question as this with literary product if it overthrow the government by poison, by dum-dum bullets, by machine guns, by --

Mr. Sanford Jay Rosen: Well --

Justice Abe Fortas: -- possession of whisky.

Mr. Sanford Jay Rosen: Of course we don't read that phrase as you do.

At this moment Justice Fortas, further, we suggest that the very narrowness of the oath if that's the way you read it which speaks and as you suggested foolishly of, “Are you at present, this moment, this instant in history, engaged in an attempt to overthrow the government?"

The very narrowness of that inquiry only highlights Section 14 of the statute and Section 10 of the statute.

Section 10 says that no subversive person shall be employed by the state.

Section 14 provides for continual surveillance of persons in the employee of the state, including teachers, including Mr. Whitehill had he been employed by the state.

Continual surveillance of these people to determine whether --

Justice Abe Fortas: Oh, I don't see (Voice Overlap) --

Mr. Sanford Jay Rosen: -- in the future they become subversive persons.

Justice Abe Fortas: I don't see that those are before us.Are you arguing that they're before us (Voice Overlap) --

Mr. Sanford Jay Rosen: Yes we are.

We are arguing -- our basic argument Justice Fortas is that you cannot in the light of the Elfbrandt decision in particular read this oath without its statute.

In Elfbrandt, you'll recall Justice Fortas that the oath on its face was apparently innocuous.

It was even an affirmative declaration of allegiance.

One didn't find out what the defect in the oath was until he read the statute and discovered the legislature had put a specific gloss upon the oath and a gloss that this Court found was unduly broad.

The same thing is true in this case.

We can't conceive of how the oath can be read without the statute, where the Attorney General himself, in his brief suggests that the authority for requiring the appellant to execute the certification is found in Section 11 of the statute.

That's the only authority that the Attorney General that any state agent has for giving this oath.

As Justice Sobeloff suggested in his special concurrence in Whitehill, I am inclined to agree that the prescribed oath or statement is not to be judged in isolation but in conjunction with the statute.

For in the absence of a statute, there would be no authority for demanding any statement under the penalty of perjury.

There is no other basis for this statement to be requested or rather demanded of these people.

That's the only authority the state has to ask the -- it's not possible, we submit to therefore read the oath without its underlying statutory authority.

Justice Potter Stewart: Well, that maybe true but the highest judicial -- not that the -- the highest law enforcement officer of your state as I understand it has said that, "Yes, that's true but it's not for you or for us to read the statute".

And it's not that we -- what we think it might mean, he has told us that it means and requires no more than this oath --

Mr. Sanford Jay Rosen: We submit --

Justice Potter Stewart: -- is that true?

Mr. Sanford Jay Rosen: -- that he has no authority to say that.

Justice Potter Stewart: Well that's not for us to decide, is it?

Mr. Sanford Jay Rosen: Certainly it is.

Justice Potter Stewart: Why?

Mr. Sanford Jay Rosen: Just as in --

Justice Potter Stewart: A matter of Maryland law.

Mr. Sanford Jay Rosen: Just as in the Sweezy case, this Court decided that it could not really tell whether the Attorney General had authority to ask the questions he was asking because he --

Justice Potter Stewart: Well, that's a question of Maryland law, isn't it?

Mr. Sanford Jay Rosen: Whether he has --

Justice Potter Stewart: Whether he has authority --

Mr. Sanford Jay Rosen: -- authority --

Justice Potter Stewart: -- to do that.

That's certainly not a matter of federal law.

Mr. Sanford Jay Rosen: It certainly is in the First Amendment area, that's the Sweezy case indicates.

Justice Potter Stewart: I understand that.

Mr. Sanford Jay Rosen: On the Sweezy case Justice Stewart, the Attorney General was authorized somehow, by the legislature of New Hampshire to make inquiry to investigate subversive activities in the State of New Hampshire.

The Supreme Court, this Court overturned I believe a contempt citation of one called Sweezy basically on the grounds that it didn't know what the authority, the scope of authority of the Attorney General was in the -- in this First Amendment area without some clear -- very clear statement to the authority of the Attorney General.

His activities would therefore abridge First Amendment rights which -- including academic freedom.

Now in this case, --

Justice William J. Brennan: (Inaudible)

Mr. Sanford Jay Rosen: -- the Attorney General is performing --

Justice William J. Brennan: (Inaudible) court in Maryland --

Mr. Sanford Jay Rosen: -- exigent -- I beg your pardon?

Justice William J. Brennan: A three judge court of Maryland has found this enough in it, hasn't it?

Mr. Sanford Jay Rosen: Oh, I --

Justice William J. Brennan: You mean, (Inaudible)

Mr. Sanford Jay Rosen: First, we believe that the three-judge court was in error and their examination of the issue was certainly a very limited one at the time.

Justice William J. Brennan: But they accepted the oath which was construed by the Attorney General.

Mr. Sanford Jay Rosen: Well, they did accept the oath as construed by the Attorney General but only because of the decision in Gerende.

They felt incumbent upon them to accept it on the basis of Gerende.

However, as we've suggested Gerende is dubious authority today.

Justice Thurgood Marshall: Didn't you make the same argument in the three-judge court to making that?

Mr. Sanford Jay Rosen: What?

The Attorney General is without authority?

Justice Thurgood Marshall: Yes.

Mr. Sanford Jay Rosen: Oh, we can't say for sure that he's utterly without authority.

What we're suggesting is that his basis for authority is this Court's decision in Gerende and the Court's -- and the Court of Appeals in Maryland's decision in Shub.

Now both of those decisions presumably upheld an oath in specific terms.

Justice Thurgood Marshall: And you say the Attorney General did not have the authority of the three-judge court as he did.

Mr. Sanford Jay Rosen: Justice Frankfurter in the Garner case --

Justice Thurgood Marshall: No, no, no.

Mr. Sanford Jay Rosen: -- the same term as the Gerende.

Justice Thurgood Marshall: My question is --

Mr. Sanford Jay Rosen: Yes.

Justice Thurgood Marshall: -- is it true that you say they did not have the authority?

Mr. Sanford Jay Rosen: That's right.

He does not have --

Justice Thurgood Marshall: And the three-judge court said he did.

Mr. Sanford Jay Rosen: That's right.

Justice Thurgood Marshall: Is that correct?

Mr. Sanford Jay Rosen: That is in effect correct.

But we would like to buttress this by suggesting in the Garner case, Justice Frankfurter suggested, and that was in the same term as Gerende.

The Attorney General of Maryland did not give this assurance, the assurance he gave in the Gerende case.

As a matter of personal relaxation, I believe a requirement.

He was able to give it on the basis of the interpretation that the Court of Appeals of Maryland, the highest court of that state had placed upon the legislation.

The Court of Appeals of Maryland has not pass upon this legislation since that statement was made.

All he has to go on is the interpretation of the statute and the oath that was made in the Shub case back in 1950, and the operative legal rules with respect to First Amendment interest in the oath area, particularly with respect to vagueness, breadth, and indefiniteness, have been significantly changed.

As he himself recognized by attempting to delete from the oath -- the phrase I -- and I am not a member of -- knowingly a member of an organization engaged in such an attempt.

Now he can try to do that, he can delete it from the oath.

But of course if we're right in our view that the oath can't be read without the statute, that won't get him anywhere.

And we suggest further that it's entirely possible if he has no authority to act.

So, in particularly in this First Amendment area, it's incumbent upon the Court to closely examine whether or not he has such authority to act.

Justice Potter Stewart: Mr. Rosen, you've just referred to this, its (Inaudible) on the bench, as an oath.

Mr. Sanford Jay Rosen: Yes sir.

Justice Potter Stewart: As I read it, it technically at least is a certification --

Mr. Sanford Jay Rosen: Yes sir.

Justice Potter Stewart: -- rather than an oath.

Is there any claim in this case that the petitioner was required to make an oath contrary to his religious scruples against taking an oath as contrasted with an affirmation?

Mr. Sanford Jay Rosen: No.

There was a claim that as a Quaker he had conscientious scruples against making this kind of a declaration but it wasn't necessarily the difference between an oath and affirmation or a certification.

Justice Potter Stewart: This is the equivalent of an affirmation, I see, I should (Voice Overlap) --

Mr. Sanford Jay Rosen: Yes, I believe it is the equivalent of an affirmation but he has conscientious scruples against making this a --

Justice Potter Stewart: Well --

Mr. Sanford Jay Rosen: --affirmation.

Justice Potter Stewart: Religious, conscientious scruples, they are constitutional or they -- or you think this violates his constitutional --

Mr. Sanford Jay Rosen: He thinks that it's a viable --

Justice Potter Stewart: -- rights as a citizen.

Mr. Sanford Jay Rosen: Because he'd -- can't understand what the oath means particularly when read with the statute.

He thinks it may be in violation of his First Amendment free speech rights but also there are some questions --

Justice Potter Stewart: I didn't see that in your brief and that's the (Inaudible).

Mr. Sanford Jay Rosen: Well we didn't make much of a point of it --

Justice Potter Stewart: Because I -- because its my understanding that some -- the disciples of certain religions --

Mr. Sanford Jay Rosen: That's right.

We're not pressing this --

Justice Potter Stewart: Is fine but it violates their religious teachings to take any kind of an oath even though on the witness stand to tell the truth.

Isn't that true, they'd rather affirm than take an oath?

Mr. Sanford Jay Rosen: Yes.

But this -- we agree with the equivalent of an affirmation.

Justice Potter Stewart: Affirmation?

Mr. Sanford Jay Rosen: Yes.

Well, I see that my time is up Your Honors.

Thank you very much.

Chief Justice Earl Warren: Mr. Hawes.

Argument of Loring E. Hawes

Mr. Loring E. Hawes: Mr. Chief Justice, may it please the Court.

I should first like to distinguish this interpretation of Elfbrandt that was presented here with respect to the legislative gloss.

Now in Elfbrandt, the reason that legislative gloss became important was that the perjury portion of the statute incorporated within it that the person who is taking the oath shall not knowingly and willfully become or remain a member of the Communist Party, etcetera.

This is not the case in the Maryland certification situation because the Maryland perjury statute is simply a criminal statute for making a false statement.

Now, the words “in one way or another,” we fail to see how these words could possibly give anyone any trouble.

I mean, in any way.

Its mere surplusage, its additional language was neither adds to nor takes away from the words or meaning of the oath itself.

The Court on a number of occasions has found no constitutional difficulty from the vagueness standpoint in construing the words overthrow the government by force and violence.

These words have been used in federal statutes such as the Smith Act and the vices of vagueness which has been found in other oaths and other laws and not been found in those words.

The oath in Baggett versus Bullitt which was referable to a Washington statute which is identical to that in Maryland is distinguishable also.

In that case, the oath said that, I certify that I'm not a subversive person as defined by the Act and there was no limitation upon the definition of subversive person in that case, in the oath that was taken in the State of Washington.

And so the case of Baggett versus Bullitt does not constitute a precedent for overruling Gerende or making the Maryland oath as presently stated invalid.

Rebuttal of Justtice White

Mr. Justtice White: Could you tell me where the form of oath that is prescribed in the statute?

Rebuttal of Loring E. Hawes

Mr. Loring E. Hawes: Mr. Justice White, the form of oath is not prescribed in the statute.

Rebuttal of Justtice White

Mr. Justtice White: (Inaudible)

What about the --

Rebuttal of Loring E. Hawes

Mr. Loring E. Hawes: I --

Rebuttal of Justtice White

Mr. Justtice White: (Inaudible)

Rebuttal of Loring E. Hawes

Mr. Loring E. Hawes: I believe it was.

I'm not certain of that.

Rebuttal of Justtice White

Mr. Justtice White: Does the latter says the -- in light of the (Inaudible) the Maryland law has been modified by emanating words so and so forth.

(Inaudible) -- of the modified loyalty oath decided by the court.

There's no -- where is the authority in the statute (Inaudible)?

Is there any mention of an oath from the statute or in virtue of (Inaudible)?

Rebuttal of Loring E. Hawes

Mr. Loring E. Hawes: Yes there is.

Rebuttal of Justtice White

Mr. Justtice White: (Inaudible)

Justice John M. Harlan: (Inaudible)

Mr. Justtice White: Do you see any mention of an oath (Inaudible)?

Rebuttal of Loring E. Hawes

Mr. Loring E. Hawes: Well 11 contains the authorization for a state agency to make --

Rebuttal of Justtice White

Mr. Justtice White: Rules and regulations --

Rebuttal of Loring E. Hawes

Mr. Loring E. Hawes: - rules and regulations --

Rebuttal of Justtice White

Mr. Justtice White: (Inaudible)

Rebuttal of Loring E. Hawes

Mr. Loring E. Hawes: -- and procedures.

Rebuttal of Justtice White

Mr. Justtice White: Now, who makes the oath?

Rebuttal of Loring E. Hawes

Mr. Loring E. Hawes: The -- they can set up a procedure and the procedure involved here as I see it would be a written statement intending --

Rebuttal of Justtice White

Mr. Justtice White: Well, that's the last --

Justice William J. Brennan: Containing this is 11 said.

Rebuttal of Loring E. Hawes

Mr. Loring E. Hawes: Containing a notice that it is subject to the penalties of perjury.

Justice William J. Brennan: Well I know what it says -- what's this mean, in securing any facts necessary, the applicant shall be required to sign a written statement.

Is that what we're talking about?

Containing answers to such inquiries is maybe immaterial.

Mr. Loring E. Hawes: Yes.

Rebuttal of Justtice White

Mr. Justtice White: So who -- then who promulgates the form of the employee has to sign whether you -- suppose an oath or a certification or what it is.

Actually, it's just a -- according to the statute it's just a written statement isn't it, containing answers to inquiry?

Rebuttal of Loring E. Hawes

Mr. Loring E. Hawes: That would be true under --

Rebuttal of Justtice White

Mr. Justtice White: As the Attorney General always drafted the form of oaths used in this?

Rebuttal of Loring E. Hawes

Mr. Loring E. Hawes: Well he did in this case.

And -- but whether he did in the initial case, I can't answer it right now because I don't know.

Rebuttal of Justtice White

Mr. Justtice White: And is it your position that he has the authority to do that under this Section?

Rebuttal of Loring E. Hawes

Mr. Loring E. Hawes: No, he would have the authority to do that under his general authority as Attorney General to -- as a legal adviser to the various agencies of state government.

And this would be a function of his rendering legal advice to write or create a -- an oath which would pass the constitutional standards and would also conform with the intent of the Act.

Justice William J. Brennan: Well, at least there's no statutory requirement that the broader -- that is being modified here by the Attorney General because the form was not specified by the statute.

Mr. Loring E. Hawes: That's right, yes sir.

Justice William J. Brennan: Are there any written regulations that you know of, of any department in the state of Maryland with respect to this matter?

Mr. Loring E. Hawes: With respect to University of Maryland, it's not by written regulation.

It's by form which was adopted --

Justice William J. Brennan: But it's a --

Mr. Loring E. Hawes: -- form of the oath.

Rebuttal of Justtice White

Mr. Justtice White: Is there any regulation by any other department that you know of?

Rebuttal of Loring E. Hawes

Mr. Loring E. Hawes: I'd -- possibly in Baltimore City, the school board has affirmed.

This isn't part of this case -- it is not in the record and I couldn't say for certain.

Justice Thurgood Marshall: Mr.(Voice Overlap) --

Chief Justice Earl Warren: Since there are -- pardon me.

Does this certification -- does it apply to the University of Maryland, the school people?

Mr. Loring E. Hawes: No sir.

Chief Justice Earl Warren: Applies to every employee in the State of Maryland?

Mr. Loring E. Hawes: It applies to all employees except the laborers.

Chief Justice Earl Warren: I beg your pardon?

Mr. Loring E. Hawes: Except laborers.

Chief Justice Earl Warren: All, except labors.

Mr. Loring E. Hawes: Laborers.

Chief Justice Earl Warren: Oh, laborers.

Working for the state, is that right?

Mr. Loring E. Hawes: That's right.

Justice Potter Stewart: Mr. Hawes, supposed an employee was a member of the Communist Party of the United States, but he was a completely passive, nominal -- their having been a determination that the Communist Party of United States, is an organization engaged to overthrow by force or violence.

But he safely say, “I am not engaged in any one way -- in one way or another in an attempt to overthrow and so forth the (Inaudible)?”

Mr. Loring E. Hawes: I would think it would be -- the question there as to whether his involvement in the Communist Party was more than just as you stated.

Justice Potter Stewart: Well, I'm giving you the -- I'm giving you the basis.

The hypothetical is he's a purely nominal passive member of an organization which is engaged.

Mr. Loring E. Hawes: That would not be enough under this Court.

Justice Potter Stewart: Would he be sure of that?

Mr. Loring E. Hawes: I think so because this Court said so.

Justice Potter Stewart: Oh, he's engaged in one way or another in the event.

Mr. Loring E. Hawes: Well, this Court --

Justice Potter Stewart: Is that (Voice Overlap) --

Mr. Loring E. Hawes: -- has said that this is not in the Elfbrandt case.

Rebuttal of Justtice White

Mr. Justtice White: And we've stricken out that clause to be a -- an oath that might have covered situation and --

Rebuttal of Loring E. Hawes

Mr. Loring E. Hawes: We struck out the evidence --

Justice William J. Brennan: You struck out the knowing membership provision.

Mr. Loring E. Hawes: Yes.

Justice William J. Brennan: But you're confident that he could sign this without this conformity?

Mr. Loring E. Hawes: With that clause stricken, yes.

Justice Abe Fortas: Well, as I understand the argument of your opponent, perhaps it runs this way that this statement is made pursuant to Section 13 of the subversiveness, Subversive Activities Act of 1949, is that right?

Mr. Loring E. Hawes: The particular oath involved in this case does say that.

Justice Abe Fortas: It's made pursuant to that section of the law.

Mr. Loring E. Hawes: Yes.

No, the (Voice Overlap) --

Justice Abe Fortas: Is that --

Mr. Loring E. Hawes: -- the form has on there -- apparently what happened was that --

Justice Abe Fortas: (Inaudible)

Mr. Loring E. Hawes: -- when it went to the printer, the printer left on that at a reference to Section 13.

Justice Abe Fortas: Well, whoever left it on, its there.

Mr. Loring E. Hawes: In this particular case, yes.

Justice Abe Fortas: And the -- there you are in Section 13, now your opponent asks -- so says that the -- if Mr. Whitehill is charged with knowledge of what's in Section 13.

And that Section 13 says that the Mr. Whitehill and many state employees has to make a written statement which shall contain notice subject to the penalties of perjury, that he is not a subversive person as defined in this Article and then it goes on and that he is not a member of a subversive organization or a foreign subversive organization that is more fully defined in this Article.

Now I suppose if the argument of your opponent is that no matter what this statement says that since it's made, since the statement is made pursuant to Section 13 of the Act with which Professor Whitehill noticed -- what Professor Whitehill is charged, that Professor Whitehill is saying that he is not a subversive person as defined in the Article and not a member of a subversive organization or a foreign subversive organization as defined in the Act.

Our key to that I assume on your -- Attorney General has (Inaudible) in the -- has effectively rewritten Section 13.

Isn't that right -- isn't that what (Inaudible)?

Mr. Loring E. Hawes: I would answer that question in two ways.

One, we could say very recently that Section 13 has been rewritten and modified and (Voice Overlap) --

Chief Justice Earl Warren: Could you speak a little louder please?

Mr. Loring E. Hawes: Yes sir.

That Section 13 has been modified by the oath prescribed by the Attorney General which was presented to this individual.

Now, this gets into the question of severability and so forth which I will reach later.

Rebuttal of Justtice White

Mr. Justtice White: Well, would you concede --

Rebuttal of Loring E. Hawes

Mr. Loring E. Hawes: But secondly --

Rebuttal of Justtice White

Mr. Justtice White: Do you -- but you concede that if -- that Section 13 was at least in part invalidated by Baggett against Bullitt?

Rebuttal of Loring E. Hawes

Mr. Loring E. Hawes: Yes.

Rebuttal of Justtice White

Mr. Justtice White: And that if the oath really did require the professor to -- this term, what Section 13 requires in this term that'd be unconstitutional under Bagget against Bullit.

Rebuttal of Loring E. Hawes

Mr. Loring E. Hawes: If all the words of Section 13 were in the oath, that is correct.

But, secondly I would say this, that if this reference to Section 13 becomes a basis for this Court's decision that this would involve only this one individual and it would not preclude Maryland's requiring him to execute a certification which did not have a reference to Section 13 as a precondition to (Voice Overlap) --

Justice Abe Fortas: I know, but I don't -- we have before us is this case.

That's the one presumably that the (Inaudible).

Mr. Loring E. Hawes: Yes.

Justice Abe Fortas: And that does have the reference to Section 13.

Mr. Loring E. Hawes: That's correct, yes sir.

Justice Potter Stewart: Or whether or not the reference to Section 13 is on a piece of paper that he is required to sign, is there any other authority in Maryland's state law except 13 for anybody to require any certification like this one.

Mr. Loring E. Hawes: Oh, we say that there's authority under Section 11 and there's one under --

Chief Justice Earl Warren: Where do we get the facts in -- for 11?

Mr. Loring E. Hawes: Under 15.

Rebuttal of Justtice White

Mr. Justtice White: On page 10A of the petitioner's brief or the appellant's brief, I think (Inaudible)?

Rebuttal of Loring E. Hawes

Mr. Loring E. Hawes: Yes, it is in the appendix, Section 10A.

Now, in Section 15, there is a requirement for an oath of candidates for office.

That's not the question -- the oath involved here.

And Section 13 only involves those persons who are in employment on June 1, 1949 and that's not the case here because this man is an applicant and not an employee.

Justice Potter Stewart: Of course the statement under Section 11 is only an aid of the termination whether that he was a subversive person.

Mr. Loring E. Hawes: That's correct, but a subversive person --

Justice Potter Stewart: Well, how we -- only further along under 11 on the (Inaudible).

Mr. Loring E. Hawes: Because, first --

Justice Potter Stewart: That's -- that the only authority for the statement at all is in aid of a determination whether he's a subversive person, is that right?

That's the only authority you have to ask any certificate.

Mr. Loring E. Hawes: That's right, for an applicant.

Justice Thurgood Marshall: Mr. Hawes, is that -- this reference in Section 13 is still on defense?

Mr. Loring E. Hawes: No.

Justice Thurgood Marshall: Then he's taken the oath.

Mr. Loring E. Hawes: At that time it was brought up in this case.

Justice Thurgood Marshall: When was that?

Justice Thurgood Marshall: (Inaudible)

Mr. Loring E. Hawes: It would have been at the time of the argument.

I believe it was February last year.

Chief Justice Earl Warren: You may find it (Inaudible).

Continue your argument.

Mr. Loring E. Hawes: Thank you Mr. Chief Justice.

The question of the authority of the Attorney General is apparently still bothering the Court.

And I should once again try to establish where this authority comes from and how it affects this interpretation of the law here.

Now, this may not be in the brief, but in Article 5, Section 3 of the Maryland constitution, it is stated that the Attorney General shall give his opinion in writing on any legal matter or subject.

And in Code Article 32A of the Maryland Annotated Code Section 3, the Attorney General shall have general charge supervision and direction of a legal business of the other state and shall be legal adviser and representative of and perform all legal work for boards, institutions, departments, etcetera of the state.

Now the University of Maryland of course is a department, an institution or an agency of the state.

The applicable part of Section 11 of the overact is that every board in this case would be the Board of Regents or other agency of the state which employs --and so forth employee shall establish by rules, regulations or otherwise procedures designed to ascertain before any person is appointed or employed that he or she as the case maybe is not a subversive person and that there are no reasonable grounds to believe that such persons are subversive persons.

Now, this is quite similar to the charge in Section 15 which was construed by this Court in Gerende where an affidavit was required for a person who is a candidate for election.

That he is -- he or she is not a subversive person as defined in this Article.

And our argument here is that if the oath prescribed here which was the one that this Court said was sufficient under Gerende can be given under Section 15 that certainly the same oath should be able to be given under Section 11 of the Act.

Chief Justice Earl Warren: Where is the direct power of the Attorney General to make rules and regulations that are binding upon any officer of the state?

Mr. Loring E. Hawes: Well, the --

Chief Justice Earl Warren: Or employee?

Mr. Loring E. Hawes: The oath here is not prescribed in that manner Mr. Chief Justice.

Chief Justice Earl Warren: No, but that --

Mr. Loring E. Hawes: The --

Chief Justice Earl Warren: Do you contend that the -- he has a right to make rules or regulations for the department (Voice Overlap).

Mr. Loring E. Hawes: No sir.

Chief Justice Earl Warren: But how does it -- that power, how is that power transferred to this situation?

Mr. Loring E. Hawes: Well, in the letter that is in the appendix to appellant's brief on page 18A, which is a second page to the letter from Attorney General Finan to Governor Tawes dated May 13, 1966.

In that letter, the Attorney General suggested -- and this is giving his legal advice to the agency -- to all of state agencies.

In this case, to the governor, to the Secretary of State, commissioner-personnel, and a copy of course went to the University of Maryland.

And on the basis of this letter, it is up to the state agency involved to prescribe the oath and to give it to its employees.

Now, there is one distinction here with respect to commissioner-personnel -- he does not prescribe the personnel procedures for the University of Maryland because of the Autonomy Act of 1952.

And this clause --

Rebuttal of Justtice White

Mr. Justtice White: So the university took the Attorney General's advice I gather.

Rebuttal of Loring E. Hawes

Mr. Loring E. Hawes: As to the body of the oath, it did.

Rebuttal of Justtice White

Mr. Justtice White: (Inaudible)

Rebuttal of Loring E. Hawes

Mr. Loring E. Hawes: Except -- they made it apparently an error in having it printed with the reference to Section 13 which shouldn't have been in there.

And this is --

Justice William J. Brennan: But I take it that the advice of the Attorney General was never binding in any agencies.

It's only a guide, isn't it?

Mr. Loring E. Hawes: It --

Justice William J. Brennan: But what I have reference that apparently it's a decision of your Court of Appeals, the (Inaudible) case, you're familiar with I'm sure where it says the opinions of the Attorney General are not binding, but are entitled to careful consideration of service guides to those charge of the administration of law.

Is that the rule in Maryland?

Mr. Loring E. Hawes: That is correct because only a court can bind the department to a particular interpretation of law.

However, as a practical matter, the department do follow the Attorneys General -- Attorney General's advice.

Chief Justice Earl Warren: I understood counsel to say that they were giving this oath in various forms throughout the state today.

Mr. Loring E. Hawes: This is not in the record and I have no personal knowledge of this.

If it's true, it's something that's outside of the record.

Chief Justice Earl Warren: Now in this letter that he wrote -- that the Attorney General wrote to the governor he said, “In light of the -- he grant decisions.

The Maryland loyalty pledge has been modified by eliminating the words "and I am not knowingly a member of an organization engaged in such an attempt" to read as follows and then he quotes the present oath.

Now who modified it?

Mr. Loring E. Hawes: Well, the Attorney General did here.

Chief Justice Earl Warren: The Attorney General modified it?

Mr. Loring E. Hawes: Yes sir.

Chief Justice Earl Warren: Now, does he -- where did he have -- where do you get the power to modify any law of the State of Maryland?

Mr. Loring E. Hawes: Well, the oath isn't prescribed in that form by law.

So he is modifying a procedure which a department is using under Section 11 of the Act.

Chief Justice Earl Warren: Who made that procedure?

Who established the original procedure?

Mr. Loring E. Hawes: I -- probably commissioner-personnel or the -- for the regions in the case of the University of Maryland on the advice of the Attorney General.

They actually do the printing of -- at the University with respect to their oaths.

Chief Justice Earl Warren: Well it -- it couldn't be the Secretary of State or commissioner-personnel because you say the offices advised him.

This office is advising the Secretary of State and the commissioner-personnel of the modified loyalty pledge devised by this office to meet the constitutional standards requiring a decision there is on the case, so evidently they didn't do it, did they?

Mr. Loring E. Hawes: Yes, they did.

Chief Justice Earl Warren: Well they might have done it following the modification by the Attorney General.

Mr. Loring E. Hawes: Oh, in other words (Voice Overlap) --

Chief Justice Earl Warren: (Voice Overlap) where is the power of the Attorney General to modify an Act of the legislature which says one thing?

Or do you contend that you have broad general powers to make regulations of this kind of change and it will.

Mr. Loring E. Hawes: Well, the -- let's look at this way.

The -- we're talking about two O's here.

First, the one prior to 1966 which is in identical words of what this Court said in Gerende, the Attorney General could advise the state agencies as conforming with I guess the Maryland law and satisfying its requirements completely.

Now, what the Attorney General has done here is to limit that further.

Now if the department had not taken his advice and used the old pledge, we might be up here on a different case.

But in this case, he did not, the department -- of the Board of Regents took the Attorney General's advice and use this to take the form.

Now with respect to the negative nature of the oath which was brought up, we would say this is -- in the very fact that you could have an oath, this doesn't differ too much from the certifications that the facts are true and correct and so forth that one makes on your income tax forms, employment applications, auto registration, auto licenses and so forth.

And on those -- on certain types of applications, an applicant maybe asked whether he is taking narcotics or his -- a consumer of a certain amount of alcohol or certain other very personnel type of questions which don't reach First Amendment freedoms, beliefs or speech and so forth but nevertheless or in the same type of form that this particular certification is.

Now, with respect to the -- the extent of the oath in reaching the innocent person who is a mere member of an organization or something of this sort, it should be noted that the oath itself -- the title to the other law itself -- the Act itself states that this is an Act to add a new Article making it a crime to commit acts or advocate acts intended to affect the overthrow of the government and so forth by an -- violence and so forth or to attempt or conspire to do so.

Now, this Title and the Act itself which construed by the Maryland Court as set forth in our brief, as its intention is to prevent infiltration into our state, county and municipal governments of person who are engaged in one way or another in the attempt to overthrow the government by force or violence.

And this interpretation of the intent of the Act was taken in by this Court in Gerende to be the full meaning of it.

And it is our contention that a certification in this language therefore is sufficient under all the cases involving loyalty oaths to this time.

And that this Court would have to overrule Gerende and possibly Garner or Cramp and at least distinguish these cases if it were to make an adverse ruling with respect to this oath on the grounds of vagueness.

Chief Justice Earl Warren: Mr. Hawes, just one more thing if you were -- have you finished -- had you finished?

Mr. Loring E. Hawes: Yes.

Chief Justice Earl Warren: I just want to ask you one more thing.

I understood Professor Rosen to say that the -- your Court of Appeals had never passed upon this particular form of the declaration, is that right?

Mr. Loring E. Hawes: Yes, it passed upon a form which was larger than this one.

Chief Justice Earl Warren: Yes.

But has never passed on this interpretation of the Attorney General?

Mr. Loring E. Hawes: Eliminating the --

Chief Justice Earl Warren: Yes.

Mr. Loring E. Hawes: -- words in 1966.

Chief Justice Earl Warren: Yes, yes.

Mr. Loring E. Hawes: That is correct.

Chief Justice Earl Warren: Now, is your Court of Appeals bound to follow the interpretation of the Attorney General?

Mr. Loring E. Hawes: It is not bound to follow it but it would certain (Voice Overlap) --

Chief Justice Earl Warren: So what you've -- what you have been arguing to us is premised upon the interpretation of the Attorney General and not upon the interpretation of your Court.

Mr. Loring E. Hawes: No, because the portion of the oath which is now being used was approved by the Court.

There were just some additional words which were thrown out in 1966, which may or may not be valid or invalid that --

Chief Justice Earl Warren: In which may or may not be valid, wouldn't that be up to this Court to determine?

Mr. Loring E. Hawes: The Maryland Court?

Chief Justice Earl Warren: Yes.

Mr. Loring E. Hawes: If they were still being used.

But if it isn't being used, it doesn't seem to make any difference.

Justice Potter Stewart: Well, it might not be up to the Court of Appeals of Maryland ultimately rather than your State Attorney General to decide whether or not this certification is sufficient in compliance with the Maryland statute.

Mr. Loring E. Hawes: Well, if --

Justice Potter Stewart: That's never been before the Court, has it, the Maryland Court of Appeals?

Mr. Loring E. Hawes: That's correct, it has not.

Justice Potter Stewart: The -- your Attorney General has advised that it is sufficient in compliance but as to what you've just told --

Mr. Loring E. Hawes: That's right.

Justice Potter Stewart: -- the Chief Justice that there's no way binding upon the Maryland Court of Appeals.

Mr. Loring E. Hawes: What the -- this Court can be assured that the Maryland Court will find the law to be constitutional.

Justice Potter Stewart: Well, that's a separate question.

Mr. Loring E. Hawes: (Inaudible)

Justice Potter Stewart: The question that I thought -- the Chief Justice's question is directed to in any event require -- what my question is directed to is whether or not this certification is sufficient in compliance with the Maryland statute.

And that's never been --

Mr. Loring E. Hawes: Yes.

Justice Potter Stewart: -- passed upon by the Court of Appeals of Maryland.

Mr. Loring E. Hawes: That's correct.

Featured:

Keyishian v. Board Of Regents - Oral Argument

Thu, 23 Aug 2012 18:09:52 +0000

Case:

Keyishian v. Board Of Regents

Media File:

105_19661117-argument.mp3

Related Transcript:

105_19661117-argument

Transcript:

Argument of Richard Lipsitz

Chief Justice Earl Warren: Number 105, Harry Keyishian et al., appellants versus Board of Regents of the University of the State of New York.

Mr. Lipsitz.

Mr. Richard Lipsitz: May it please the Court, Your Honors.

This case has come before the Court as a result of a complaint filed on behalf of the class of persons known as the Faculty of the State University of New York at the University of Buffalo, Buffalo, New York.

A complaint was filed following the requirement imposed upon the members of the faculty of that institution when that institution became a state institution in 1962 and previously having done a private plea owned, operated, maintained university at Buffalo, New York known as the University of Buffalo.

When it became a state institution in 1962, the officials of the State University of New York of which this was then a part applied for the first time to these particular faculty persons and others the requirements of what are known as the Feinberg Law of the State of New York.

The Feinberg Law of the State of New York is the subject of course of the Adler decision previously decided by this Court in 1952.

In our complaint, we attack again as was have done in the Adler case but in a much more comprehensive way and in a much broader scope as I might say, the entire complex of statutes administrative regulations procedures and certificates that have become known as the administration and application of Feinberg Law and more specifically we attack in our complaint Section 3021 and 3022 of the New York Education Law, Section 105 of the New York Civil Service Law, Article 18, Section 244 of the Rules of the Regents of the University of the State of New York, the current body over the trustees, the latter whom administered trustee institutions of higher learning, the former of whom the Board of Regents are responsible for the entire state education system.

And also we attack in our complaint the procedures implied -- applied rather by the various defendants to implement the complex statutes known as the Feinberg Law.

The facts of the case are as follows and they have to be, I suppose, discussed on two different levels, if I may.

The first level on which they should be discussed is what happened with the statute following the decision of this Court in the Adler case and in that respect, the facts are these.

As of the time of the decision of the Adler case, the Section 3022, the heart of the Feinberg Law as such was not applicable by its very terms to any employees whether they'd be faculty or other kinds of personnel to institutions of higher education.

The statute was applicable solely and wholly to institutions known as public schools which in New York State and elsewhere in United States are those considered to be elementary and high school.

In 1953 after the Adler decision, the New York State legislature added these words to Section 3022 of the New York Education Law and I quote, “In all other personnel and employees of any college or other institution of higher education owned and operated by the state or any subdivision thereof,” thus, making the statute, for the first time, applicable to university, college and college faculty, professors and other personnel.

Furthermore, this was --

Justice William J. Brennan: Does that make the issue here different than it was in Adler?

Mr. Richard Lipsitz: We say that it makes a different issue.

Yes, Your Honor.

Of course, I think it should be stated at the outset if I haven't made it plain and we are also attacking the entire statutory arrangements even as it was previously before this change in 1953.

Justice William J. Brennan: Yes, but I gather this what you've just said would be the predicate of an argument which you don't have to overrule Adler defined for you as to college --

Mr. Richard Lipsitz: That is -- that is correct.

Yes, sir.

The other changes occurred of which much was made by the decision of the court below, the three men court which heard this case about which we will see more later was that Section 12-a of the New York Civil Service Law that being the statute at the time of the Adler case was in 1958 changed to Section 105 of the New York State Civil Service Law and prior to the time of its change to becoming Section 105, it added a new provision.

That new provision is the second paragraph of 105(c) which may be found, if Your Honors care to look at it, at page 113 of our brief and also of course in the record.

And that Section added these words, “For the purposes of this section, members of the Communist Party of the United States of America or the Communist Party of the State New York shall constitute a prima facie” -- two words prima facie having been emphasized, “evidence of disqualification for appointment to a retention of any officer position in the service of the state or of any city or civil division thereof.”

That section -- that provision rather was not in the then Section 12-a of the Civil Service when the Adler case was before this Court.

It was added to 12-a subsequent to Adler and then was converted in the Section 105 of the Civil Service Law.

At the time it became 105 of the New York State Civil Service Law, there was also added subdivision 3 to formerly 12-a and now 105 and subdivision 3 is found at page 114 of our brief and also of course in the record and rather than quoting it from you, I will tell you that it adds to 105, a provision which -- but for one sentence is almost identical with the provisions of Section 3021 of the New York Education Law.

The one sentence which is added as a reference to a definition of what is meant by any treasonable or seditious act or acts to the New York Penal Law, Sections 160 and 161 but which will not expressly refer to are the sections of the New York Penal Law where the definitions of these terms could be found.

We are not here attacking as such the constitutionality of Section 160 and 161 of the New York Penal Law.

We, however, in our argument will suggest and indeed point out that if the interpretation of this subdivision 3 of Section 105 is dependent upon an interpretation by somebody of this Court or otherwise of 160 and 161 of the Penal Law that Section -- subdivision 3 is of course unconstitutional for being indefinite and a restriction on First Amendment rights.

Now those, Your Honors, are the statutory changes in which I referred to as the level of facts that can be best described in this fashion that have occurred since the Adler case.

I would like to stress one thing which I think -- we do think deserves some mentioned and that is this, that when those words were added to Section 3022, that is to say their application to any personnel or employees of any college or rather institution of higher education, there was no claim by the New York state legislature that there was any present prospective future, potential or otherwise any kind of danger, imminent or about to occur to those institutions.

They didn't even refer to the fact that they have made findings in 1949 relating to the alleged fear, danger and imminence of so called infiltrations of the public schools system by the persons who would be following some subversive course of conduct.

They not only didn't refer to it, they didn't rely upon it.

They just put it in the statute without any legislative reliance, finding or investigation.

Chief Justice Earl Warren: Do they have to do that?

Mr. Richard Lipsitz: As a matter of law.

No, sir.

Chief Justice Earl Warren: Do they have any findings?

Mr. Richard Lipsitz: No, sir.

But as a matter of determining whether or not as we would argue, there is some basis for the state acting in this field that is to say in the field of First Amendment rights, we say that it indicates a lack of any compelling need to allow at the kind of invasion of First Amendment rights which the Court has from time to time allowed because of a demonstration of need but we don't claim that there is any constitutional requirement that a state legislature make a finding.

We say that however that it does have an impact upon whether or not there was any basis for allowing and there is any basis at the present time for allowing an invasion of First Amendment rights of persons who happened to be university and college or teachers and other faculty.

Chief Justice Earl Warren: I suppose you tell us by university students are less subject to submersion and children.

Mr. Richard Lipsitz: If you're suggesting -- if I understand Your Honor, Judge Warren -- Justice Warren, you're asking me to explain it now or you're saying later on?

Chief Justice Earl Warren: Oh, you may take it from due course.

Mr. Richard Lipsitz: No.

Well, we don't make any claim in our brief as such although other briefs do that there is a less susceptibility.

There is no -- I will argue with you and to you that there is less susceptibility.

What I'm saying is that there is no demonstration that there is anybody employed or about to be employed in the state university system from which this alleged danger would have occur that was found to be a fact in regard to the public school system.

It's not a question of whether there is a bigger or less susceptibility on the part of students although that is an issue that can be argued in terms of academic freedom that persons as they grow older become more mature and should be able to accept different points of view much more readily than innocent in younger school children.

Now, the facts that occurred in regard to the particular plaintiffs are these.

Each of these particular plaintiffs had been employed by the then University of Buffalo in one capacity or another at a time when it was the University of Buffalo and private institution.

There were of course was no requirement that they subscribe to anything, signed anything or otherwise provide any information except as to their professional competence or fitness to become employed at the time of hiring.

One of them, plaintiff Starbuck who is treated somewhat differently by the state and therefore has had a different history in respect to what's happened to him was employed as a librarian.

It is claimed by the state and was so found by the court below that his employment was not an academic employment and that therefore his employment was not subject to Section 3021 or 3022 of the Education Law but rather he was in the case of any other civil servant of the State of New York under the provisions of the Civil Service Law to be qualified or disqualified from employment by virtue of the provisions of Section 105 on New York State Civil Service Law.

He was asked after having been employed.

In other words, excuse me, after he became employed, I must show the correction.

He was the one person employed while this institution was a public university.

He became employed after the merger, the only one of the plaintiffs.

And when he was employed, he was employed without any requirement that he signed anything or answer anything but along after several months of employment, he was asked the question that appears at page 65 of our brief and otherwise in the record in which the question based strictly upon the statutory provisions found in Section 105 and that question was, “Have you ever advised or taught or were you ever a member of any society of group of person who taught or advocated the doctrine of the Government of United States or of any political subdivision there shall be -- should be overthrown or overthrown by forced violence or any other unlawful means?”

He declined and refused to answer that question whereupon his employment was threatened to be terminated.

He in fact brought a lawsuit of his own that is as the sole plaintiff in Federal District Court to seek in juncture relief against it.

That lawsuit was thereafter abandoned in favor of his becoming and joining as a plaintiff and this lawsuit which is before the Court.

Justice Potter Stewart: Did he give --

Justice Hugo L. Black: What's the ground of his refusal to answer that question?

Mr. Richard Lipsitz: He stated that he felt it was an infringement upon his conscience and that it was unconstitutional requiring him to answer it.

He did this however not before any --

Justice Hugo L. Black: Unconstitutional under what division?

Mr. Richard Lipsitz: Well Your Honor, I think his answer is in the record.

Justice Hugo L. Black: Well, I just --

Mr. Richard Lipsitz: He gives his own statements which he appended to the answers.

Justice Hugo L. Black: Wasn't that in the Fifth Amendment?

Mr. Richard Lipsitz: No, sir.

That was not the issue at all as far he was concerned.

However, he didn't do to support of any hearing.

On the back -- as I recalled on the back of the form, he put down some reasons why he, George Starbuck declined to answer this question.

Justice Byron R. White: And what was the question?

Mr. Richard Lipsitz: Have you ever advised or taught or were you ever a member of any society of group of persons who taught or advocated the doctrine of the Government of the United States should be overthrown by the course of violence or other unlawful means, and his objections I can point out to you in a minute after we check the record.

The other four plaintiffs --

Justice Potter Stewart: Did he make any request for a hearing on this refusal?

Mr. Richard Lipsitz: He made a request for a hearing.

Yes, sir.

But it was claimed that he's a temporary employee and otherwise that he had no right to a hearing on this issue.

He was temporarily employed, it was claimed by the state and therefore as a temporary employee he had no rights to hearings of any kind.

The answer is it's difficult to read but it's found at exhibit which was contained at portfolio 299 of the record where in his own handwriting, he says that he prefers not to answer or at least into the necessity and relevance of this question is properly explained to me, initials G.S.

That's the answer that he gave them.

The other four plaintiffs, if I may Your Honors, were all persons who are employed as faculty members.

Let us say teachers of one subject or another in the state university and they declined to sign what are known as in this litigation and prior thereto the Feinberg certificates.

Now, the Feinberg certificates, Your Honors, are found in our appendix at pages 122 and 123 and also in the record.

And the Feinberg certificates required when presented to the plaintiffs that they sign after having read the statements which appear thereupon.

Each of the four plaintiffs declined and refused to sign the Feinberg certificates.

They were threatened with the dismissal and I don't use the word threatened in a menacing way, they were told that they were going to be dismissed because there was an obligation on their part to sign this.

They then joined as plaintiffs with Starbuck and this lawsuit was commenced seeking to declare the entire system statutes unconstitutional.

Justice Potter Stewart: Well, is there not?

Justice Byron R. White: Perhaps if you -- do you have a record reference on the Feinberg certificate that you have used everytime --

Mr. Richard Lipsitz: You mean where it's set forth, Your Honor?

Justice Byron R. White: Yes, what the certificate says.

Mr. Richard Lipsitz: It says that at 122 and 123 of the brief, also Your Honor, we reproduced in the appendix.

Justice William J. Brennan: Well, what issues refer this to 212 or it's fully at 125?

Is that one of them?

Mr. Richard Lipsitz: No.

That was the one that Starbuck was required to sandwich the civil service questionnaire.

Justice William J. Brennan: The other one where --

Mr. Richard Lipsitz: It's in our brief which I happened to have the references to page 122 and 123.

Justice William J. Brennan: And?

Mr. Richard Lipsitz: You will also find in the record that the identical documents that you find in 122 and 123.

Justice John M. Harlan: What were the grounds of their refusal to sign certificates?

Mr. Richard Lipsitz: Their grounds are --

Justice John M. Harlan: Same as what --

Mr. Richard Lipsitz: Yes, plus the fact that they felt that it was invasion of First Amendment rights.

Justice John M. Harlan: No claim of the Fifth Amendment.

Mr. Richard Lipsitz: The Fifth Amendment was not involved in this sir.

As a matter of fact Your Honor, to make it perfectly clear, there has never been a claim at any time by anybody in the employment of the state system that there was a fear of apprehension that these people maybe giving evidence against themselves by virtue of having being required to sign this.

They did not rely upon the Fifth Amendment rights except as far as due process of law is concerned and not the self-incrimination.

Now, those are the -- I think perhaps it's really fair to say that the state has through forbearance exercise in its part in taking the position that it would not discharge any of the plaintiffs except Starbuck who was dismissed until this litigation is disposed of through the court system, solely for their failure to have signed the certificates.

Now then, when this action was commenced --

Chief Justice Earl Warren: And they are in the State Service --

Mr. Richard Lipsitz: Well, one of them was an appointment for a year the lead case Keyishian and his employment was not renewed so he is no longer there but it is not an issue in this lawsuit as to whether it wasn't renewed because of his failure to sign it.

The state says that we show under our own procedures not to renew them and one has left voluntarily to take employment at another institution outside of the state system and that's plaintiff Maud and the other two are still there in the sense of any outcome of this lawsuit.

The --

Justice Byron R. White: What are they threatened with, with those two who are still there?

Mr. Richard Lipsitz: They are threatened with discharge but that isn't the whole answer Mr. Justice --

Justice Byron R. White: I thought the state have said -- I thought the state had given up the --

Mr. Richard Lipsitz: I'm going to come to that in a minute.

I'm going to come to that in a minute but nevertheless, they still have this threat discharging over their head.

Justice Byron R. White: On what ground?

Mr. Richard Lipsitz: If I will explain in this fashion.

After this lawsuit was started, it was dismissed for failure to state any substantial question.

It was then appealed to the Court of Appeals of the Second Circuit, a complaint was reinstated by decision written by Justice Marshall and it came back and it was tried before the three men court.

One week before the trial was to have been commenced before the three men court, the state adopted a new policy for administering the so-called Feinberg Law and that new policy is found at pages 124 and 125 of our brief that is also found elsewhere in the record.

And that new policy withdraws the certificates so that as of that time although we don't know and there's no human being can assert with the certainty that the certificate requirement will never again in the future will be reintroduced in the state system.

At that time, the certificates were withdrawn and in there place, the procedure set forth was made -- the manner of administering the Feinberg Law for the state university.

But in answer to your question Justice White, the paragraph which appears in the middle of page 125 reads that and I'm not going to quote it but nevertheless that no presently employed person and that is to say our plaintiffs shall be deemed qualified or ineligible “Solely by reason to such failure”, referring to the failure to sign the so-called Feinberg certificates.

So this isn't out of the case.

This is an element to be considered in terms of their continued future employment when and if the time comes that the state is going to determine as a result of following the conclusion and the decision in this lawsuit what to do with this plaintiffs.

It says it shall not solely be, it doesn't say shall not be so that our answer to the question is they're still threatened and it would be imminence of dismissal if this law should be declared on Constitution.

Justice Byron R. White: Is this paragraph where you rely on now as evidencing an effort of the statement forcibly followed against the particular appellant?

Mr. Richard Lipsitz: No.

We object of course to the new procedure as well as to the old procedure and we claim that the laws are all unconstitutional for the reasons that we will argue in the remaining time and in the brief.

They -- these new procedures, it does not appear on the record have or haven't been applied to the present plaintiffs and if you will remember, they were introduced one week before the case was tried and there's nothing in the record one way or another to indicate what's going to happen to this plaintiffs if the new procedure is to be applied to them.

We don't know what's going to happen to them but they still have to guide themselves according to what they have been told as now the method of enforcing the statute.

That is to say that they must comply with in on all time considered that they are eligible to be retain an employment only if they understand and agree that the rules of the regents in the various statutes are part of their conditions of employment.

That's set forth a new procedure so that we don't rely just upon the words solely.

We rely upon the fact that they too as well as any other employee of the state university is now subjective to this new procedure which we don't claim or it's considered as any as more superior in a constitutional sense in the old procedure.

Now, those if I may Your Honors, are the facts that have been involved in these plaintiffs in these cases.

I like to turn now to the --

Justice John M. Harlan: When you come to -- through your protecting (Inaudible) --

Mr. Richard Lipsitz: If the answer to that question Mr. Justice Harlan is that there has been an expression by a substantial number of faculty members some 300 to 400 out of a total faculty at that institution of approximately a thousand that an expression was took place in the form of a resolution condemning the requirement that they have to comply with the Feinberg Law.

Only these persons, the plaintiffs have refused outright to comply with.

They have exceeded.

They have gone along.

That is to say those employed at the time went along with it and said rather than that we will sign.

Now, we claim in our briefs and we argue before the Court that these statutes certainly should be declared to be unconstitutional as an infringement upon First Amendment rights as a bill of attainder and for lacking of due process in regard to all persons affected by these statutes including the plaintiffs.

We particularly argue in this case of course the current constitution in respect to institutions of higher learning or reasons that there has been no demonstration of any need of going or otherwise to invade First Amendment rights and that there is an expression joined quite imminently by this Court in a number of cases since Adler that academic freedom has a right to cherish and to be fully protected under the First Amendment.

As -- on this -- on the question of whether or not the First Amendment rights of these plaintiffs are violated, we of course, rely upon all of the cases on this subject which had been decided since Adler and which without suggesting to Your Honors although the question was asked that it is necessary to overrule Adler nevertheless indicate that this Court has departed in some substantial measure from the standards of Adler and I don't need only to refer to the acknowledgment of the minority of this Court itself in the Elfbrandt decision were it states and at one portion of the Elfbrandt decision that though the majority did not purport to overrule or delimit Adler, at the end of the decision nevertheless the minority decision in effect says but that's about what they did by virtue of the decision.

Now, in what fashion has this Court departed from what appears to have been what was the law at the time of the Adler decision?

The answer is this, we think.

Firstly, Adler states and it states as plainly as can be that there is no right to public employment, that if the person doesn't like what he's required to submit to as an employer of the state, he has a perfectly free choice to go elsewhere.

This Court and I need not to spend the time going into the decisions that have been written on the subject as quite candidly and expressly stated in subsequent decisions that unconditional, that unconstitutional conditions may not be imposed upon public employment anymore than it can be on any other public right.

In the doctrine that if you don't like what you have to do in order to become employed by the state, you can go elsewhere is no longer we think the law as expressed in a number of cases decided subsequent to Adler.

One of which of course Elfbrandt and other which is the case decided from Oregon on the same subject the Baggett and Bullitt case.

In addition to which in other areas, it has been quite clear that the Court has apparently taken this position.

But more importantly than that and we have attempted to analyze the complex questions that are presented by the Section 105 requirements and we do that starting at page 35 through 37 of our brief.

The requirements imposed by Section 105 in New York State Civil Service law just as much now as I work for the time of Adler though not brief nor argued before this Court as our research indicates when Adler was argued, the requirements of 105 are so vague, are so contradictory and indeed are so overreaching in our view that they cannot add by themselves constitutionally be sustained for instance and I won't go into all of the various considerations that are present in Section 105 but it appears that merely embracing the doctrine, the Marx's if you will, the government should be overthrown by force or violence is a ground for disqualifying a person from public employment not by doing of an act but the embracing of a doctrine and this is as clear as clear can be from the provisions of Section 105 if one carefully reads and analyzes them an I refer to the provisions of Section subdivision 1(b).

Section 1(b) of -- subdivision 1(b) of the Civil Service Law Section 105 also makes it unlawful to print, publish, edit, issue or sell any book in which the doctrine is contained.

Well, at the same time advocating or embracing that is to say having the belief of the duty.

Now, we say for a variety of reasons the whole section is unable to be sustained constitutionally based upon present standards of this Court.

I would turn now to the argument that we think is a key to the decision of which -- when it is made in this case and that is this.

The state has taken the position very proudly that unlike other loyalty complexes from other states, New York State has provided the optimum of due process because all that New York State says is that the person who has been or is a member of the subversive organization, in this case the Communist Party, is only prima facie disqualified from either becoming employed or retaining employment.

And by virtue of those two words Your Honors, the state claims that there's nothing wrong with the entire system provided for under Section 3022.

We claim that this doctrine in a sense imposes an impossible burden upon the persons involved who if some of them were to concede or admit that they are members of the Communist Party could over -- only overcome this burden in the words of the United States -- of the New York State Court of Appeals and one of the three cases which became known as Adler.

They can only overcome it in the following fashion, (a) by proving that the organization is not subversive an impossible burden in any hearing because they don't have acknowledgment against the forces of the state which has already proved this to its own satisfaction, the ability of the individual to prove that it is not subversive as an impossible burden or (b) denying membership or (c) denying knowledge of the aims and goals of the organization.

According to the Lederman decision, one of the three cases involved in Adler, these are the three things that are necessary to overcome the presumption.

There is absolutely had been no consideration given to the facts as evidence by the Elfbrandt decision, the Aptheker decision, the Scales decision the Noto decision of this Court that innocent knowing membership cannot be and should not be the grounds for disqualifying anything neither employment as a teacher Elfbrandt nor ability to obtain a passport, Aptheker.

The State of New York has said in its right in the decision.

Justice John M. Harlan: (Inaudible)

Mr. Richard Lipsitz: No, sir.

Scales and Noto merely stood for the doctrine as we understand that it takes more to convict one of being a member under the membership clause than mere knowledge of the aims of the organization.

It must take activity in pursuance of the unlawful aims.

The State of New York doesn't say that.

It says that you -- to overcome this presumption, you have to prove that the organization wasn't subversive that you were a member of it but that you didn't know its aims and to neglects completely to consider what is now the law as we see it in terms of the rights that have been created by these other decisions that innocent knowing membership cannot be the grounds for disqualification which is the Elfbrandt decision.

Now, we say that the so called doctrine of rational connection in this field which has been used to justify the upholding of prima facie presumptions if you will and shifting the burdens to the person seeking employment as a doctrine which not only should not be applied to the field where the First Amendment rights of speech or association that are involved but indeed there is no rational connection between what has being done by the state here and what we claim as the fact by virtue of the fact that the state has never demonstrated that anything involving membership in any organization is the equivalent of disqualifying or should be the equivalent of disqualifying a person from teaching.

Furthermore, it is our claim, as I mentioned at the outset that the -- under the Brown decision, the effect of the state legislature in 1958 now said that members of the Communist Party are ineligible to all office in the state constitutes a bill of attainder and as such it is constitutionally defective.

While it is true that the Court in Adler upheld the proposition that an administrative agency could make a finding, it did it at a time before it was determined how it was going to be done and what manner of means are going to be used as Justice Frankfurter stated in his dissent before the statute had anything but its bare bones on it.

But in any event when the legislature in 1958 said legislatively no person who is a member of the Communist Party shall be eligible or that is to say membership shall be prima facie evidence of ineligibility.

The legislature said as did the Congress in Brown against the United States that this means a person is ineligible to be employed in the state university.

We thank you very much.

Chief Justice Earl Warren: Ms. Iles.

Argument of Ruth V. Iles

Ms Ruth V. Iles: May it please the Court.

I represent the Attorney General of the State of New York appearing in support of the constitutionality of the statutes which are here challenged.

Mr. Crary, the state university counsel will argue the case on behalf of the state university and the procedures adopted by it to implement these statutes.

It is the position of the state in this case that the constitutionality of these statutes, the Feinberg Law that is Education Law Section 3022 has been upheld by this Court in the Adler case and that there have been no changes in the law since that case which would warrant a different decision here.

The Feinberg Law was first enacted in 1949 to eliminate from the states public school system as teachers, persons willfully and deliberately advocating the overthrow of the government by force or violence.

Such persons were already ineligible for service in the public -- in the state employment but the Feinberg Law was intended to implement the disqualification under Civil Service Section 12-a which had been on the book since 1939 by providing procedures whereby the public school teachers and the Board of Regents would implement Section 12-a of the Civil Service Law.

The only change in the Feinberg Law since 1949 and since the Adler case has been the fact that now instead of just public school teachers being covered employees of the state university institutions of higher education of the state had been covered in and a requirement has been added that the Board of Regents report annually to the legislature in the effectiveness of the Act.

Civil Service Law Section 12-a has been amended once since the Adler case, that was in 1958 when they added to Section 12-a, a provision that membership in the Communist Party would be prima facie evidence of disqualification for state service.

The only other change in Section 12-a is that in a general recodification of the Civil Service Law in 1958, Section 12-a of the Civil Service Law was renumbered as subdivisions 1 and 2 of Section 105 of that law.

Appellants in an attempt to avoid the ruling in the Adler case seek to make this case a challenge to the constitutionality of every statute ever enacted in the State of New York having to do with subversive activity.

For example, they challenge the language of Section 160 and 161 of the Penal Law relating to criminal anarchy but this is not a prosecution for criminal anarchy.

What's more, those sections have been repealed by a general revision of the New York State Penal Law and effective in 1967 they will no longer be the law of New York State.

Appellants also challenged the language of Civil Service Law Section 105 subdivision 3 relating to removal from public office for sedition.

But this is not a charge of sedition and these persons have not been charged with treasonable or seditious acts or words.

Section -- Subdivision 3 of Section 105 was formally subdivision, was formally Section 23-a of the Civil Service Law has been on the books a long time was on the books when the Adler case was decided and is not new to the law of the State of New York.

The Feinberg Law and the rules of the Board of Regents however continue to refer only to Civil Service Section 12-a or subdivisions 1 and 2 of Civil Service Law Section 105.

These relate only to the disqualification of persons for service in the state service for advocating deliberately and willfully the overthrow of the government by force.

We are concerned here only with the hiring of personnel of the State University of New York and whether they are qualified or not and we contend that subdivisions 1 and 2 of that section are the only ones with which we are here concerned.

Thus, our inquiry is only whether a state statute may disqualify a person for employment in a state college if he deliberately and willfully advocates the overthrow of our government by force and violence which is all that the Feinberg Law in Section 12-a do as far as these persons are concerned.

Justice Abe Fortas: Ms. Iles, excuse me.

Do I understand that -- do I understand you to say that New York Penal Law Section 161 is not relevant here?

Ms Ruth V. Iles: I contend that it's not relevant.

On page 16 of my brief in a footnote, you will see a reference to the fact that these -- there has been a general revision of the Penal Law of the State of New York.

Sections 160 and 161 have been repealed effective in 1967 and there will be a new provision relating to criminal anarchy with an entirely different definition as of them.

The definition is in the footnote on the bottom of page 16 of the brief.

For this reason, I feel that in interpreting, I don't feel that subdivision 3 of Section 105 of the Civil Service Law is pertinent but certainly even if it is pertinent, it seems to me since it relates to the removal of the persons for sedition, it would be something which this Court would abstain from deciding under the course of New York have interpreted these new Sections and it would certainly seem premature here where no such question is involved in the controversy.

As I say -- said, all we are concern with is an inquiry as to whether a state statute may disqualify a person for employment if he deliberately and willfully advocates the overthrow of the government by force.

This is exactly the same question which was decided in the Adler case where this Court held that a person may be denied the privilege of working for the school system of the state of New York if he advocates unlawful overthrow of the government.

Justice Byron R. White: What about membership -- what about membership in an organization which gave this advocacy?

Ms Ruth V. Iles: In the Adler case, in construing this section of the law which I might add as exactly the same as it was at the time of the Adler case, this Court said they would rely upon the construction placed upon that section by the courts of the State of New York.

The courts of the State of New York said that it had to be knowing membership in the organization but the person must not only know it, he must know its aims and purposes and they interpreted its meaning that the person subscribe to it and that if a person was a member and could explain his membership, he would not be disqualified.

Justice Byron R. White: You mean mere membership is not enough or mere knowing a membership is not enough.

Ms Ruth V. Iles: No.

In the Adler case, they said it had to be ‘knowing membership' -- knowing the aims of the organization.

Justice Byron R. White: Now, let's say -- assume you know the aims of it, is that enough?

Ms Ruth V. Iles: Then there is a hearing to see -- under the Adler case it said, he would then be given an opportunity to explain whether he had ever been a member, whether he was now a member.

Justice Byron R. White: What if he comes in and says, “Well yes, I know exactly the aims of the party.

I just don't have to agree with them.”

Ms Ruth V. Iles: Well, implicit in Section 12-a and I believe in the Feinberg Law is that they advocate.

They must be active and deliberate advocacy and this is one of the tests for advocacy.

Justice Byron R. White: Do you think -- do you think that New York courts construed this to mean that person not only must know the aims but he agrees with them and furthers them.

Ms Ruth V. Iles: Yes, and they say there is a presumption when a person joins an organization knowing of its aims that he subscribes to its aims and this is something the school authorities would then pursuit further once they determine that he was a member of the organization.

Appellants rely upon cases decided by this Court since Adler were proscribed activities and oaths have been stricken down as an infringement upon constitutional guarantees.

We submit that the cases relied upon are distinguishable from our present case.

For example, this Court had stricken down statutes where there was no overriding state concern in the activity the state sought to limit or where the activities were proscribed in such broad terms that other fundamental rights were unnecessarily interfered with or where as in the Elfbrandt case, a person became liable to criminal penalties for knowing membership in an organization without proof that the person subscribed to its unlawful purposes.

Two cases which -- upon which appellant also relies heavily are the Cramp and Baggett cases where the loyalty also were required in language which is so vague that there was no objective way to determine guidelines for conduct.

We have no such vague language here.

We submit that the New York statute declares ineligible for employment only those person who willfully and deliberately advocate, teach or advice the overthrow of government by force, violence or unlawful means and this has been interpreted by the New York courts to be 'knowing advocacy'.

New York has confined itself to a sphere of legitimate inquiry about conduct which is proscribed in narrow and clear terms to accomplish the desired end and we submit that the right of the state to protect the public service from disloyalty in this manner should be sustained again as it was in the Adler case.

In my opponent's reply brief, he has referred to the fact that 105 is now 12-a.

We submit as I did in the argument that 105 is now only subdivisions 1 and 2 of 12-a, and this appears clearly in the note and table of distribution at the end of the Chapter 790 of the laws of 1958 when it was enacted and in such Section 185 of that Section, there is a provision that where there is a reference in any law as there still is in the Feinberg Law and in the Board of Regents rules to Civil Service Law 12-a, it continues to refer only to the subdivisions which were formerly 12-a when it was recodified into the new Civil Service Law.

Justice Byron R. White: Did you -- what state court opinions do you rely on for the construction of these laws to the effect that you stated awhile ago, is it Adler?

Ms Ruth V. Iles: There was -- Adler case and the Thompson against Wallin, and Lederman and Lamado which were the Court of Appeals decisions which were affirmed in Adler case so construed the statute.

There has also been a case since then -- Board of Higher Education against Allen in 6th New York --

Justice Byron R. White: Is in your brief?

Ms Ruth V. Iles: I don't believe that citation is.

6th New York 127 where --

Justice Byron R. White: 6th New York --

Ms Ruth V. Iles: 127 but the Commissioner of Education sent it back to the Board of Higher Education.

Justice Hugo L. Black: Is that 2nd or –-

Justice Byron R. White: 6th New York 2nd --

Ms Ruth V. Iles: 6th New York 127.

Justice Byron R. White: Do you think the three-judge court agreed with you assuming --

Ms Ruth V. Iles: On the revision of this section?

Justice Byron R. White: On the construction of these sections by the state boards.

Ms Ruth V. Iles: That the three-judge court went further than I believe they had to go because they went into the merits of the controversy and they discussed subdivision 3 of Section 105.

It was raised below.

Justice Byron R. White: As I read the three-judge court opinion, it seemed to me that the court thought that the New York law would justify discharge for mere knowing memberships and you say that is not so.

Ms Ruth V. Iles: I say that is not what the Adler case said.

Justice Byron R. White: How about the --

Ms Ruth V. Iles: But --

Justice Byron R. White: -- but what do you mean -- we were talking about the New York law though.

Ms Ruth V. Iles: Well, the Adler case said that they were bound by the construction placed on the New York by the Court of Appeals and in this case, it has been in the federal courts all along and there has been no construction of that by any of the state courts in this case and this Court has said we are bound by the construction --

Justice William J. Brennan: Now but this not the three-judge court here say that the reach of the decisions of the New York courts was to commit the charge for mere knowing members.

Ms Ruth V. Iles: I believe they did -- I do believe they went that far.

Justice William J. Brennan: Well, then they don't agree with your interpretation of what the decisions of New York court --

Ms Ruth V. Iles: I would say that's experimental.

Justice William J. Brennan: -- are, is that it?

Chief Justice Earl Warren: Mr. Crary.

Argument of John C. Crary

Mr. John C. Crary: May it please the Court.

I -- I am counsel two and represent the State University of New York.

I distinguish the State University of New York from the University of the State of New York because there is often confusion about it even in New York.

Justice William J. Brennan: I'm confused now.

What is it?

Mr. John C. Crary: The Board of Regents is the governing board of the University of the State of New York.

It is a corporation which has existed since 1784 which is the head of New York Education Department under the New York constitution and which in that capacity have supervisory and regulatory authority overall education public, private, elementary, secondary and higher in the state.

The State University of New York on the other hand is a corporation created in the education department.

A public corporation in the year 1948 for the purpose of administering state operated and supported higher education in the state.

It is the Board of Trustees of that corporation which I represent and which administered these statutes in the manner which had brought this case to this Court.

The -- I also represent administrative officers of the university including its new president, Samuel B. Gould who took off as of 1964 after this case had risen.

I apologize for my cold.

My concern is to -- we rely upon the Attorney General's position, who has the duty of defending the validity of New York statutes and we rely upon and support the position which the Attorney General has taken in this case in support of this statute.

My concern here is to attempt to demonstrate to the Court that the university in carrying out the duties which became imposed upon it by virtue of those statutes has carried them out in accordance with their valid purpose and without imposing, super imposing upon them any requirements which in and of themselves could be construed as being beyond the needs of the statutes or in any way unreasonable or violated of personal rights.

In 1953 after this Court's decision in Adler, the Board of Regents proceeded as the statute required it to do to hold hearings upon others and to make listings of those organizations which you'd found to be subversive within the meaning of the New York statute then 12-a of the Civil Service Law now Section 105 because the only thing which the Feinberg Law did was to implement that statute.

The Feinberg Law itself did not make any definition of subversion.

It merely provided a procedure for implementing that disqualification for employment by the State of New York which had long been contained of Section 12-a of the Civil Service Law and it did interest this Court knows from its consideration in the Adler case by providing or upon notice in hearing listing of organizations found to support those illegal objectives of force to overthrow the government.

After the hearing, the listing -- the organizations listed were two, the Communist Party of the State of New York and the Communist Party of the United States.

The regents duly listed them, promulgated them, put it in their circular in which the Feinberg Law was explained to the schools to which it applied and thereafter the presumption which Adler had said was proper.

It was proper to infer the fact from the facts found, the ultimate fact from the facts found.

Thereafter there was a presumption under the New York statute that those organizations -- that member -- knowing membership in those organizations disqualified – this knowing membership disqualified for employment in the public schools.

Now in as much to answer one of Your Honors question, in as much as all the Feinberg Law does is implement the Civil Service Law and the Civil Service Law itself requires knowing advocacy by the individual.

My own feeling and I think the university's construction of the statute has not been that mere membership susceptible of being innocent is sufficient.

It must be a membership which presumptively supports the objective, the illegal objectives of the party but in which the member individually shares because that's what the Civil Service Law dis -- that's the disqualification of the Civil Service Law individual advocacy of the violence or otherwise unlawful overthrow of government.

Justice William J. Brennan: Well, let me see if I understand it.

You start out with a finding that the two organizations, New York and United States advocate and preach the --

Mr. John C. Crary: The finding not made by my university but by the Board of Regents.

Justice William J. Brennan: That's the finding that's been made under the Civil Service Law, is that it?

Mr. John C. Crary: Yes.

Justice William J. Brennan: And then under the Civil Service Law, a disqualification -- this general disqualification not only for teaching but for all employees.

Mr. John C. Crary: For all public employees.

Justice William J. Brennan: Is only of those persons who personally advocate knowing overthrow.

Mr. John C. Crary: Knowingly, deliberately the unlawful overthrow of the government.

Justice William J. Brennan: And I take you have such persons even though they are not members of these or the other two organizations.

Mr. John C. Crary: Of course, Your Honor.

Justice William J. Brennan: And then you go on and say under 105 that if one -- there is a presumption that if one is a member of a particular of one of the two organizations, is it?

Mr. John C. Crary: Knowing of its objectives, he presumptively supports those objections.

Justice William J. Brennan: So this -- so you arrived at the conclusion that he is an individual who advocates violent overthrow on the basis of a presumption from his membership in one of the two organizations.

Mr. John C. Crary: Yes, and because this is a presumption and only a presumption, it's susceptible of being overcome and in the Thompson against Wallin case which was one of those affirmed in Adler, the Court of Appeals of New York specifically said, because it's only prima facie, this imports the hearing at which the countervailing evidence can be given.

And it says that countervailing evidence goes forth, the presumption disappears.

Justice Byron R. White: But if you -- but if in the proceeding for a discharge or removal, you presented evidence of membership, knowing membership and arrested and he presented no evidence, he would be discharged.

Mr. John C. Crary: I think the presumption then would prevail.

Yes, Your Honor.

Justice Byron R. White: But if he came in and explain to the -- or explained in a way that somebody were to believe that he did not engage in advocacy personally why he would not be discharged.

Mr. John C. Crary: If there were affirmative evidence on his part to that effect, then I think Thompson against Wallin says he has overcome the presumption and the presumption disappeared but then if he is still declared ineligible to be appointed or is then held to the -- is then discharged because of this, the burden he is then entitled to a hearing under Section 105 of the Civil Service Law which is expressly provided for him by that statute in the Supreme Court of the State of New York in which the burden is on the removing officer to show that he is disqualified and I think that to show that he was disqualified would require showing that he did those things which you proscribe by 105 --

Justice Byron R. White: You mean you couldn't rely on the presumptions --

Mr. John C. Crary: Namely person -- what if -- as I read Thompson against Wallin, this Court of Appeals has said, the presumption arises once it appears that he is a knowing member of the organization and when it arises, it imports -- one is relying on the statutory hearing under 105, it imports a right to a hearing at which he may produce evidence to overcome the presumption.

Justice Byron R. White: But if --

Mr. John C. Crary: If he does so and if he is still discharged --

Justice William J. Brennan: That's because he doesn't do so?

That's the question.

Just take Justice White's case.

Mr. John C. Crary: Then I think -- then I think --

Justice William J. Brennan: Then 105 does him no good.

Mr. John C. Crary: -- that the New York statute with its presumption which presumes the fact, which disqualifies him and he doesn't overcome it and because this Court has I submit said the presumption is valid, he may permissibly be discharged.

Now, I'm coming Your Honor to the situation with respect to the university employees who even despite this could not be discharge where they have tenure under university procedure -- university policies even so they could only be discharged by being -- by the procedure provided in the university's policies for terminating a tenure as follows.

And that so, they -- I want to say this before my time expires.

They were not threatened with immediate dismissal.

The only thing that was ever said was that here is the thing which the university has the procedure it has done to comply with its own statutory duties under a statute of New York.

You are asked to comply with it, to give us the information we need to determine whether you are qualified.

When we get this information then either we can find that you are qualified or we can make the further inquiry which may be necessary and give you the opportunity to furnish us any further information which you may wish to but unless you give it to us, we cannot comply with our statutory duty and what was said to them was if you do not do this then we will have to make charges against him of insubordination and refusing to comply with the university --

Justice William J. Brennan: But what must not -- must that not that that procedure is a practical matter in the situation that Justice White pointed out.

You'd have no alternative on one basis or another but to terminate him, would you?

Mr. John C. Crary: Well, he would have -- the thing I think I am trying to make clear here is that those faculty employees who had tenure either term or continues would have a hearing and before a university body in which if they chose to refuse to reply and they could explain --

Justice William J. Brennan: That's when they'd be --

Mr. John C. Crary: -- they could explain it.

Justice William J. Brennan: -- I thought, yes.

Mr. John C. Crary: I think if Your Honor please the only other thing that I would wish to add is that the university having adopted this procedure in 1956.

There's been no precipitant haste by the university here.

There's been no drastic action that it has weighed its procedures carefully.

It's done so in an effort to comply with the state law by which its administrative officers by their own knows their bound and it had done so not by asking any oath because the certificate is not an oath.

It's an oath at all.

It didn't ask anyone to forswear his beliefs.

It didn't ask him to conform to any vaguely specify to ask him the very thing which the New York statute of the regents' procedure may have reckoned it.

Justice William J. Brennan: The sanction of one action from the people.

Mr. John C. Crary: Yes.

Yes, there would be Your Honor because I think under the university procedures which provide for hearing in the dismissal only upon notice of hearing which I have notice some hearing in the event of those who have tenure and temporary in terms -- temporary employees do not, term employees do.

They would get a hearing, yes.

Justice William J. Brennan: But there's no criminal penalty for cancelling purpose.

Mr. John C. Crary: I do not believe it would just to two persons under the New York statute but if he lied, I think this would be misconduct of the time which warrant is removed.

Justice William J. Brennan: You take it --

Chief Justice Earl Warren: I just like to ask one question Mr. Crary.

Suppose he admits his membership in a Communist Party and you rely -- relying on the presumption, require him to show that to overcome it that he isn't a knowing member in the sense that he advocates the overthrow of the Government by force and violence and he takes the stand and says, well, I did belong -- I did belong to it but I didn't subscribe to those things.

I just don't belong because there are certain things in the party that I agreed with and the board just said to him, well, we don't believe you.

You're discharged now.

Is it susceptible to that kind of action?

I don't accuse the university of doing it, but could it be done in that way without anymore testimony than that?

Mr. John C. Crary: I just like to think that the university officials would ever be arbitrary but let's assume actually that Your Honor's question that they were.

If that happened then I think 105 of the Civil Service Law itself say, if he is dismissed on that ground that he is a subversive then 105 says that he can go into the Supreme Court of the State of New York, bring in a proceeding, have that decision reviewed and the burden of showing that he is disqualified is on the university.

Justice Byron R. White: Without a --

Chief Justice Earl Warren: Yes.

Justice Byron R. White: (Inaudible)

Mr. John C. Crary: Without a --

Justice Byron R. White: And they have reason that the perfect evidence as to personal --

Mr. John C. Crary: Assuming that he has before the university brought forth countervailing proof.

Justice Byron R. White: I don't understand that the kind of presumption that he's claiming here is that any evidence that you get --

Mr. John C. Crary: It must be evidence in some proof Your Honor and not any.

Justice Byron R. White: Well, I don't think that you understand there and in saying or what did you do, I just when -- maybe what's the --

Mr. John C. Crary: Of course the state of his mind is only he knows but --

Justice William J. Brennan: Or in the course of situation where he has to, where he takes the stand that he said “I am a member of the Communist Party, I don't deny it but I do not agree with its policy of overthrowing the Government.”

Mr. John C. Crary: I think he --

Justice William J. Brennan: But I agree with the social security and all the other objectives.

That's all I agree with but I am a member of the party.

Mr. John C. Crary: He might be subject to some probing of the validity of that statement but ones that stood under it --

Justice William J. Brennan: Of whichever is subject to --

Mr. John C. Crary: I think it would.

Justice William J. Brennan: (Inaudible)

Mr. John C. Crary: I think it would.

Chief Justice Earl Warren: Suppose he goes before the Civil Service Commission, what -- and has this hearing, what do you reply upon to say that the state no longer can use the presumption against him but must prove its case affirmatively.

Mr. John C. Crary: Well, here of course Your Honor, I'm --

Chief Justice Earl Warren: I beg your pardon.

Mr. John C. Crary: -- I'm bound by what the Court of Appeals said in Thompson against Wallin and what it seems to me to say and again, I point out that the Attorney General is here taking the position that he takes in support of this statute but I read Thompson against Wallin that say that the prima facie nature of the assumption imports a hearing in which proof can be brought forth and that when any proof is brought forth to overcome that presumption that disappeared.

That's what I read out -- that's what I read in Thompson against Wallin.

Of course, the Court only -- the Court knows precisely what it meant but that's the way I read it.

Justice Hugo L. Black: Is that the position the Attorney General takes?

Mr. John C. Crary: With that I prefer to let the Attorney General speak for it.

Justice Hugo L. Black: I understood your argument.

Chief Justice Earl Warren: When you finish I would like to ask Ms. Iles if that is the position of the Attorney General.

Though, I do not want to hurry.

Mr. John C. Crary: I would submit that the judgment should be affirmed, Your Honor.

Chief Justice Earl Warren: Very well.

Rebuttal of Ruth V. Iles

Ms Ruth V. Iles: I think the position of the Attorney General is that once the person being hired comes in and testifies that he doesn't subscribe to those parts of the philosophy of the Communist Party which advocate the overthrow of the government by force but just subscribes to it as a doctrine.

This -- immediately, the presumption would then vanish and then the burden would be upon the person disqualifying them to show that he advocates and willfully advocates the overthrow of the Government by force.

Now when the burden is shifted back to the person hiring him and who has disqualified him, they would have to come in with concrete proof either by statements he had made somewhere or by acts or some other kind of concrete proof which would establish a case against him on disqualification.

This would be the Attorney General's --

Justice Byron R. White: Do you -- do you think they agree with him?

Ms Ruth V. Iles: Right.

Then the burden would shift in the Attorney General or in the disqualifying officer would have the burden of coming in and showing some overt proof that this man is lying when he says he doesn't subscribe to this.

Chief Justice Earl Warren: Now, I would like to ask -- thank you Ms. Iles.

I would like to ask Mr. Lipsitz very briefly to respond to that as to whether that is the law and whether it can be sustained,just very brief.

Rebuttal of Richard Lipsitz

Mr. Richard Lipsitz: My answer is very clear, Your Honor.

It is not the law and we rely upon Lederman versus the Board of Education, one of the three cases constituting the Adler case where it barely clearly says that all he can do is (a) deny membership or (b) that the organization advocates the overthrow that is to challenge the finding of the Board of Regents or that he -- or (c) that he has knowledge of advocacy.

It's all he can do to overcome the presumption.

Justice William J. Brennan: Is that the same case --

Mr. Richard Lipsitz: Yes.

Justice William J. Brennan: With the other side of law?

Mr. Richard Lipsitz: I don't know upon what they rely, Mr. Justice Brennan.

Justice William J. Brennan: You get t hide.

Mr. Richard Lipsitz: That's yes.

It's Lederman versus Board of Education.

Justice William J. Brennan: Now, if that suppose to --

Mr. Richard Lipsitz: It's one of the three that's there involved in the Adler case.

Justice William J. Brennan: Is this another case that we have to decide on?

Mr. Richard Lipsitz: No, sir.

Justice William J. Brennan: You have a quite few (Inaudible).

Mr. Richard Lipsitz: I don't think you have to decide what it meant, Your Honors, because it says so in black and white in their decision and it's also stated at Thompson against Wallin.

It's not as they simply put it that once somebody comes in and says I didn't believe an advocacy that the presumption disappears.

That's just doesn't the way it works.

Literally speaking and I quoted from Lederman against Board of Education.

Chief Justice Earl Warren: Leatherman?

Mr. Richard Lipsitz: Lederman, L-E-D-E-R-M-A-N v. Board of Education, Your Honor.

It's cited to 75 of my brief.

It's one of the three Adler cases.

The Court says quote referring to this procedure.

“He may (a) deny membership; (b) that the organization advocates the overthrow of the government by force; and (c) that he has knowledge of such advocacy.”

This not this business about coming in and saying but I don't believe in the doctrine of advocacy or I don't believe in the doctrine or advocate the doctrine and therefore the presumption disappears.

He's got -- he's very limited in what he can do under the New York Court of Appeals interpretation of this Section.

Justice Potter Stewart: The Lederman case was one of those cases which was affirmed in Adler.

Mr. Richard Lipsitz: Yes, sir.

Justice Potter Stewart: And the case of Thompson --

Mr. Richard Lipsitz: Thompson against Wallin also.

Justice Potter Stewart: I beg your pardon.

Mr. Richard Lipsitz: Thompson against Wallin also.

Justice Potter Stewart: So they were contemporary.

Mr. Richard Lipsitz: They were the two -- the three of them constituted to name otherwise the Adler case.

Justice Potter Stewart: The Adler case.

Well now the case on which your adversaries rely and telling us what the New York law is, that's Thompson against Wallin?

Mr. Richard Lipsitz: And Lederman.

The same case.

Justice Potter Stewart: I know that she mentioned as I understood it not --

Mr. Richard Lipsitz: Yes, she mentioned Thompson against Wallin but they also will tell you that they rely upon Lederman because Lederman is one of the three cases in which the Court of Appeals have stated in the --

Justice Potter Stewart: I want to know what -- how they were decided chronologically.

Mr. Richard Lipsitz: Oh, they are decided the same day and in fact you can find them in the New York reports one page after another.

Justice Potter Stewart: The same day.

Mr. Richard Lipsitz: Yes, sir.

There's no -- and there is no inconsistency between them by the way.

Chief Justice Earl Warren: We'll adjourn now.

Featured:

Elfbrandt v. Russell - Oral Argument

Wed, 22 Aug 2012 16:56:37 +0000

Case:

Elfbrandt v. Russell

Media File:

656_19660224-argument.mp3

Related Transcript:

656_19660224-argument

Transcript:

Argument of W. Edward Morgan

Chief Justice Earl Warren: Number 656, Barbara Elfbrandt, Petitioner, versus Imogene R. Russell et al.

Mr. Morgan.

Mr. W. Edward Morgan: Mr. Chief Justice Warren, Justices of the Court.

In 1961, the 25th Legislature of the State of Arizona passed Arizona Revised Statute 38-231, demanding that every employee of every Board, Commission, Agency, and Independent Office of the State in any of its cities, towns, school districts, public institutions, from that point on, not pay any more salary to any employee who failed or refused to sign a disclaimer oath, the general hortatory words known very well to every political office holder, but, adding thereto, a particular and peculiar meaning by subsection (e) of that particular statute.

Any officer or employee as defined in this section having taken the form of oath or affirmation proscribed by this section and knowingly or willfully at the time of subscribing the oath or affirmation or at any time thereafter during his term of office or employment does commit or aid in a commission of any act to overthrow by force or violence the government of this state or of any of its political subdivisions or advocates.

The overthrow by force or violence the government of this state or any of its political subdivisions or during such term of office or employment knowingly and willfully becomes or remains a member of the Communist Party of the United States or its successors or any of its Board and organizations or any other organization having for one of its purposes the overthrow by force or violence the government of the State of Arizona or any of its political subdivisions.

And said officer or employee as defined by this section prior to becoming or remaining a member of such organization or organizations, the knowledge of said unlawful purpose of said organization or organizations shall be guilty of a felony and upon conviction thereof shall be subject to all the penalties for perjury.

In addition upon conviction under this section, the officer or employee shall be deemed discharged from said office or employment and shall not be entitled to any additional compensation or any other emoluments or benefits which may have been incident or pertinent to said officer appointment.

Justice Potter Stewart: Mr. Morgan, the oath is simply the oath that appears on page 9 of your brief.

Mr. W. Edward Morgan: Yes, it is, Mr. Justice.

Justice Potter Stewart: And that's an oath that is very similar to, if not identical with the oath that all federal officeholders taken.

Mr. W. Edward Morgan: It's a traditional oath of our society as --

Justice Potter Stewart: Traditional oath for Government employees?

Mr. W. Edward Morgan: Yes.

I think Helen Silving in the article in Yale, on a history of olds traces this history.

It's a -- even antedates our country in terms of its force.

It's a auditorial containing no penalty.

May not even be essential to employment even if a legislature provides that it is such.

Justice Potter Stewart: But it is the statutorial form (Voice Overlap) --

Mr. W. Edward Morgan: It is.

Justice Potter Stewart: And that's the --

Mr. W. Edward Morgan: One which (Voice Overlap) --

Justice Potter Stewart: -- only oath involved here.

Mr. W. Edward Morgan: It's the only oath.

The question is whether or not when the legislature added to it a specific meaning, which is Section (e).

Justice Potter Stewart: Well, I suppose your case would be the same whether or not there was an oath, if they -- if Section (e) just said “if any” -- or just -- if it just took out “having taking a form of oath or affirmation proscribed by this.”

Mr. W. Edward Morgan: Exactly so.

Justice Potter Stewart: With your case would be exactly the same.

Mr. W. Edward Morgan: Exactly.

Justice Potter Stewart: You're attacking (e).

You're not attacking the oath.

Mr. W. Edward Morgan: Exactly.

Justice Potter Stewart: Is that it?

Mr. W. Edward Morgan: Yes.

Justice Potter Stewart: Yes, fine.

Mr. W. Edward Morgan: At the same time, the state legislature also passed a anti-subversive -- a subversive law which is practically per verbiage of Section (e) of the provisions which I've read to you.

At that time, based with this legislation, the named petitioner herein, Barbara Elfbrandt, a teacher and a Quaker, joined together with two other teachers and refused to sign the oath and brought an action in the Superior Court of Pima County, Arizona, attacking the law in a -- on substantially all of the grounds, constitutional grounds which had been advanced in our two applications for certiorari to this Court.

The statement of facts was agreed to by the Attorney General of the State of Arizona and made part of the lower Court's decision, the Trial Court's decision, denoting it a class action not only for teachers but for every employee of both the state and the county.

Chief Justice Earl Warren: We'll recess now.

Mr. W. Edward Morgan: Yes, (Inaudible).

Mrs. Elfbrandt and two other teachers did not, within the 90-day period filed their renewed oath containing Section (e), which was made mandatory to be printed as part of the same sheet on which the oath was contained and her pay was stopped forthwith and she and her husband have -- since that time to the present, continued to be school teachers without remuneration in the State of Arizona.

One other man, Mr. Delgoff, after the first Arizona State Supreme Court decision, did signed the oath and received back wages for a period of 12 months or 13 months, whatever time it was.

Justice Potter Stewart: She's a Quaker?

Mr. W. Edward Morgan: She is a Quaker.

Justice Potter Stewart: But I gather it wasn't to the taking the oath which she objected because she had the choice of affirming, didn't she?

Mr. W. Edward Morgan: Exactly.

Justice Potter Stewart: So, wasn't she (Voice Overlap) --

Mr. W. Edward Morgan: And, had previously signed an oath, an affirmation, oath in terms of the paycheck because the vouchers contained -- printed on them an affirmation clause.

Justice Potter Stewart: And she has -- she's making no attack here on the basis of the First Amendment, the protection of free exercise of religion, is she?

Mr. W. Edward Morgan: No, not -- and particularly because it's a class action in terms of what would then be available to all the employees of the State of Arizona.

Justice Potter Stewart: And anybody has the choice of affirming rather than taking an oath.

Mr. W. Edward Morgan: Exactly so, yes.

On the other hand, one might suggest that in as much as it is a class action and as much as we have argued this matter to our State Supreme Court, it has been a matter of judicial review on both occasions.

There has been a discussion of the First Amendment Freedom of Religion as applied to all the employees of the State of Arizona and their right to refuse to take an oath or affirmation on the matter.

This has been argued in our Court.

So, though it's not particular to this particular appellant here, as much as it was brought as a class action on behalf of every type and style of employee, not just limited to school teachers and to -- and stipulated as a matter of fact and a matter of condition of the appeal itself.

And as a result, the cause of not receiving any salary, we approach this Court in forma pauperis.

The first issue that must be met is whether or not under the theories of this Court in the balancing of interests which was somewhat discussed in the previous case in oral argument here this morning, a position which we do not share in the Court's view of the balancing of the right of the state purportedly to maintain itself as against the operation of the First Amendment and the Bill of Rights.

However, even within the theory of -- philosophical theory of Doctrine of Relativism of Rights adopted by this Court over a series of cases, like Dennis and etcetera, it's our position that the State of Arizona, in connection with the operation of this statute had no good substance to even pass a statute.

That the statute -- one, that there was no good reason for it, that there was no operation of communist in any broad scale within the State of Arizona, no evidence of that.

There'd been no public hearings.

There were some adoptions of some other hearings by the Federal Government, but none of those hearings or reports indicate that there was any widespread subversion of public employees of the State of Arizona.

And understand the statute does not only apply to employees of the state, but applies in counties, cities, of any affiliate administrative body associated with the state, such as volunteer, administrative committees of cities where there's no pay involved.

There were no hearings on this matter or public lines.

There was no evidence that there was any subversion.

There was no predicate for an insult to the public employees of the State of Arizona that they were subversive in a fretful period of extreme reaction that the state legislature wanted this -- was passed.

And, as usual, when things are pretty feisty and people are in the air, I think with one objection.

The second aspect --

Justice Potter Stewart: But whether or not -- whether or not the State of Arizona had good reason or no reason to pass this law as -- that question as such isn't really the business of this Court, is it?

Mr. W. Edward Morgan: I think when -- yes, I think it is, under -- even under your decisions, on the basis that when the Court sets back and allows the state to operate in a way to place a limitation on freedom of assembly and freedom of speech, then the burden is upon that state to show its -- the need to do this.

Justice Potter Stewart: Well, is this --

Mr. W. Edward Morgan: And where is the need --

Justice Potter Stewart: If the operation of this law results in the violation of some of these constitutional rights then it does and under that extent, pro tanto it's invalid.

But whether or not a state has a good reason or a bad reason or no reason to pass a law is as such no business of this Court because it's no business of the United States Constitution, isn't that right?

Let's say a state passed a law, licensing, snake charmers and you show there are no snakes in the whole state but that's of no -- that's no business of ours, is it?

Mr. W. Edward Morgan: In that light I would agree and concur with you in your interpretation of the matter.

In light of when -- let us -- to say that we establish and concede that each individual within the state is a member by reason of his national citizenship has a right to freedom of speech and freedom of assembly.

I think this statute on its face by proscribing association in particular organizations was purportedly -- are engaged in antisocial behavior puts obviously on the face of it, a restriction on assembly which is a restriction of freedom of speech.

Justice Potter Stewart: Now, that's --

Mr. W. Edward Morgan: Whether it's a junk case.

That being so, then we must measure or not whether or not there was sufficient overall need by the legislature of the State of Arizona to enter into this relatively tender area of limitation of activity.

And in that case -- in this case, there's no showing of the State of Arizona that there was any such need.

Secondly, one of the things that this Court has been careful in the past is to see that -- assuming that a state does have a need and wishes to fulfill that need, whether or not they have used a tool, chosen the proper tool to ex -- to fulfill their need.

The question is whether assuming that they thought that they had a problem dealing with subversion, whether or not the tool that they've chosen is the one least disruptive of the rights of freedom of association and freedom of speech.

And in that regard, the history of -- an examination of the authorities in dealing with the adoption of loyalty oaths, say in California, as set forth in the citations and authorities of review that we've given in our brief on both occasions that we've been to this Court would indicate that the adoption of the technique of disclaimer by so-called loyalty oath with provision similar to Section (e) have been a failure.

In the State of Arizona, there hasn't been one prosecution.

There hasn't -- one person turned up as a subversive.

The evil of it must be also considered in terms of its adverse effect upon the society.

And certainly, I think we've cited within our brief the situation, a study done under the auspices of the Twentieth Century Fund on the effect of these disclaimer oaths, on these loyalty oaths, such as Section (e) of Arizona law and the academic community, in which they were rather disastrous in terms of their attitude and feeling of freedom and their ability to speak out and undertake lines of development.

So, the evidence that's before this Court in terms of this type of legislation is one that in the State of Arizona show no fundamental need for it.

And, secondly, it's adopted a piece of legislation which has demonstrated in its effect over the country, danger and an injury to the academic community.

But assuming for a minute that the legislation on those basis is perfectly constitutional, I think there are certain other aspects that one might consider with this legislation to -- that indicates it's uncons -- that's not constitutional.

What it -- assuming that the State of Arizona has a problem with subversion and a finding out in attempting to get rid of employees of the cities, counties, dogcatchers, garbage collectors, etcetera for being subversive, may that society -- may that legislature throw the burden of dealing with a problem from its own shoulders onto the individual.

I think that's exactly what the State of Arizona has attempted to do in two fundamental ways, one, by denying of hearing and the question of procedural due process.

The second aspect is by framing a piece of legislation that is so vague that the man of ordinary understanding cannot be properly advised of what conduct will allow him to act in safety.

What the State of Arizona does by presenting Section (e) to any employee is to shift the burden, instead of going through an administrative proceedings, with hearings, with accusations, with accusers, with transcripts, the individual must meet the issue all by himself.

Now, the question comes, and I don't think we need too much discussion on the fact that though an employee doesn't have a right to a government job, that the government in dealing with the employee must afford him basic due process in terms of -- with firing and hiring procedures.

I think we've set that forth in a number of different cases before this Court in our brief.

But taking the situation of a right of hearing, what is the individual faced with?

In this case, if he wants to continue to work for income, he wants to continue to receive his salary, he must sign the oath.

If he doesn't, he doesn't get a salary.

On the other case, if he wants employment, he must sign the oath or he may not be employed.

This is a -- fundamentally a denial of procedural due process under the Fourteenth Amendment.

The quality of placing a burden upon the individual to decide all of the terms of this legislation, when we come to the vagueness question itself, but notice the burden that it puts upon the individual.

One, at his penalty, he must determine all of the terms of this particular subsection.

He must determine what knowing is and what advocacy is, and aid is, and what an association that has as one of its purposes the overthrow of the government.

All of this burden is put on the individual.

He stands there by himself, in secret, without any aid, without any really effective aid of counsel, unless he hires himself, all the burden of judging his own conduct and of interpreting the meaning of the statute is thrown upon his shoulders, what to find out.

So the State of Arizona might find out if he is a subversive, might.

Is there enough validity to the --of placing the individual with this type of burden to gain benefit to the State of Arizona in terms of attempting to find out or discriminate or get rid of a subversive, highly doubtful on the basis of the history of this particular legislation.

The -- this Court, in the second Nostrand versus Little case, noted that the -- in the second state decision, after the remand by this Court, noted that their oath was prospective only and it held that where tenure was involved on the University Professors of that State, that there would have to be a hearing.

The Court there, I think, erroneously determined in the State of Wisconsin that there was no right to public employment and therefore no right of hearing on any other employee other than those that have been specifically granted tenure by their reason of being a university professor.

But the -- but this Court in Nostrand versus Little, and the state court recognized in Nostrand versus Little the essential necessity of a hearing to grant a person the right to explain why or why not they're not accepting or taking the oath.

The distinction between a criminal prosecution and the placing of the burden directly upon the individual by confronting him with his decision is that in terms of a criminal prosecution, one, all of the procedure of the state would be that a trained county attorney, or district attorney, prosecuting officer would have to evaluate with his legal training and experience and knowledge the exact meaning of the statute as applied to an individual case.

They have to have a proper and preliminary investigation of the purported facts of the individual.

There'd have to be a conclusion by the prosecution with understanding of the probabilities of success.

There would have to be a preliminary judicial scrutiny of the case in terms of an issuance of a warrant for arrest.

There would then be in nearly every state procedure and certainly in the State of Arizona a preliminary hearing or a grand jury scrutiny.

All of this scrutiny before society would effectively act upon the individual.

By presenting him with an oath and forcing him to sign it at the danger of losing his job or danger of losing his salary, the state short circuits all of the social security of the individual that we have worked out in criminal prosecution and place the whole burden on him.

The issue of giving a man an opportunity to explain his position is fundamental in our society.

It's a fundamental aspect of due process itself.

The opportunity to say where you stand and why you stand before one loses valuable rights is the basic concept of due process, as established by this Court, certainly in Lerner versus Casey and a number of other cases.

Justice Potter Stewart: Are we clear that no hearing is available here?

Mr. W. Edward Morgan: There is no hearing available in the State of Arizona to -- other than a tenured school teacher and we are not here as a tenured school teacher.

There is no hearing available.

Justice Potter Stewart: Your -- the person who brought this suit is a tenured --

Mr. W. Edward Morgan: No --

Justice Potter Stewart: -- school teacher on --

Mr. W. Edward Morgan: -- not at the time --

Justice Potter Stewart: -- on behalf of herself and other similarly situated, isn't it?

On behalf of herself --

Mr. W. Edward Morgan: She was not --

Justice Potter Stewart: -- and all other govern -- Arizona employees.

Mr. W. Edward Morgan: Yes, she was not tenured at the time.

Justice Potter Stewart: She is now.

Mr. W. Edward Morgan: She is now.

She has achieved it.

Justice Abe Fortas: May I ask you this question.

Is there anything --

Mr. W. Edward Morgan: Yes, Mr. Justice Fortas.

Justice Abe Fortas: -- in the record that shows whether at the time a prospective state employee takes this oath, there is any reference to or notice of the statute?

Mr. W. Edward Morgan: Yes.

Justice Abe Fortas: When -- how does that (Voice Overlap) --

Mr. W. Edward Morgan: The law itself establishes the way it will be printed and if you'll -- the statute itself Mr. Justice Fortas provides that the Section (e) will be typed up and printed along with the oath itself and get the law itself.

In your brief, there's nothing else.

Justice Abe Fortas: Well, don't take your time.

Mr. W. Edward Morgan: It's in our brief and it's in the state's brief.

Section 38-231, officers and employees required to take loyalty oath form penalty in order to ensure the statewide application of this section on a uniform basis.

Each board, commission, agency, and independent office of the state and any of its political subdivisions and of any county, etcetera, public educational institutions shall immediately upon effective date, completely reproduce Section 3-231 as set forth herein to the end that the form or written oath or affirmation shall contain all the provisions of said section.

In the -- we cite the case of Heckler versus Shepherd, which is the State of Ari -- in Idaho, three-man federal court deciding the issue of the constitutionality of the same provisions as in the State of Arizona.

The Heckler case has not been appealed.

It's more than a year.

It was a divisible statute.

It provided a prohibition, a future prohibition against advocacy of the -- a forcible overthrow of the government and in substance is the same.

The Court in Heckler versus -- in the Heckler versus Shepherd, there set forth that it was a denial of procedural due process in connection with vagueness that gave rise to the unconstitutionality or lack of constitutionality of such a proscriptive oath.

And the -- both oaths are the same.

The lower court felt that on the same basis, that a man must have the right to publicly say why he is not signing such an oath and the reasons why he is not signing it so that the public may know, so that he may not go about branded in our society without a forum, without a record of his opinions.

And I think that in substance, that when one considers the grave consequences to an individual as to whether or not he signed this oath containing subsection (e) and his inability to create a public forum for his position, except by appeal to this Court, as suggested in the reply brief or answering brief of the state is to place an undue burden upon him.

There are certain questions, questions of whether or not -- if in subsequent prosecution under the anti-subversive law, whether or not the failure of the individual who signed this oath may not be used against him in a future criminal prosecution or at least in cross-examination to show that, at that time he had a bad knowledge of his association.

There's a question of whether or not in fact, this is not in effect self-incrimination because his very failure to take the oath labels him in the community as either of two things, one, a dangerous person by subversive association or, two, that maybe just as dangerous in our society as an unstable person, as a person who may be reckless in their affiliations or reckless in their thoughts.

In either one, the black morale of our (Inaudible) -- of esteem that was upon the individual, he carries it wherever he goes into every other form of employment, particularly this school teacher.

And he leaves the school district because he hasn't signed the oath and attempts to get a job any other place.

The first thing that he's going to be faced with is the fact that he didn't sign the oath and he lost his public employment.

Justice Potter Stewart: Now, I suppose a state can, if it wants to, decide that it doesn't want to have its own employees, people who are either dangerous or unstable, would you agree with that?

Mr. W. Edward Morgan: Yes, and further stay the law.

Justice Potter Stewart: And, if somebody doesn't want to -- if somebody is, falls into one of those categories and for that reason can't take this oath without committing perjury, he doesn't need to refuse to take the oath.

He could just resign and find private employment.

He could find employment in the state which doesn't require those conditions of its employees, can't he?

Mr. W. Edward Morgan: I think that's inaccurate.

I think that it goes back to a position -- well one, I don't think it faces the facts, the reality of it, particularly in the school teaching industry.

About 80% of employment is public employment.

It would be like the same old story before the Norris-La Guardia Act, if you don't like working for me at my 10 cent-an-hour wages, you go to work for anyone else that you want.

To say to an individual, if you don't like public employment and the conditions of it, you can go and just work some other place, is not really a full answer of the question.

Justice Potter Stewart: Well, this person obviously doesn't like public employment under condition of it in Arizona.

Mr. W. Edward Morgan: But, let's as --

Justice Potter Stewart: There are many other states which don't have --

Mr. W. Edward Morgan: Fine.

Justice Potter Stewart: -- have these conditions.

Mr. W. Edward Morgan: But let's assume that with that condition there's due process.

Let's assume that a hearing is afforded where the person can test out whether or not, one, their understanding of the law is correct.

One, it assumes that when a person doesn't sign the oath that they have a competent understanding of the oath.

That's where we'll come to the vagueness issue in a second.

But let's take it on a -- how having a hearing would avoid some of the vagueness problems of this particular legislation because, there the individual could work out what the law actually meant, vis-à-vis his conduct.

Does aid mean aid?

Does advocacy mean advocacy?

And, it would be explained to him.

In this position, the individual has no explanation of what this oath means, nor can they be in a position without jeopardy of saying, “Well, if I belong to the international association of astronomical scientists, though its communist dominated,” and we will presume that every communist organization has one of its purposes the forcible overthrow of the government, “Does this bring me into jeopardy of the law?

If doesn't bring me under jeopardy of the law, then I'm willing to sign the oath and continue my employment.”

But, there is no forum for that.

There is no way that the person can reach a decision, a fact decision, on his loyalty under the present law of the State of Arizona.

Justice Abe Fortas: Well, how about the phrase in the law that says -- requires as a condition to its punitive application or disqualification that the person must have had knowledge of said unlawful purpose of the organization.

It appears on page 10A of your brief.

Mr. W. Edward Morgan: Yes.

This Court, I think, has dealt in Baggett versus Bullitt, which we've cited in our briefs with unknowing guilty -- with knowing guiltless behavior in the Baggett decision and in which you've dealt with this very, very problem, Mr. Justice Fortas, the knowing.

We have many definitions of the word “knowing”.

This is not just as clear a word as one would have it sometimes meant.

The -- in the -- in United States versus Bianco, cited in our brief, the term “knowingly” contains no element of evil purpose but purports -- imports a perception of facts requisite to make up a crime.

In U.S. versus Martinez, cited in our brief, where there's a clue on it that the defendant knew what he was about to do and with such knowledge proceed to do the act.

It means that in Rubenstein, U.S. versus Rubenstein, “knowingly false” means that the party honestly did not believe it to be true.

You have even in your Iberville Land co. versus Amerada Petroleum, knowledge of notice sufficient to excite action and put a person on his God and call for inquiry could be sufficient knowledge.

So, it's not the simple nice knowledge in toto.

It's a knowledge that may be imputed by his conduct and to -- left to the tender mercies of a jury to decide what his basic knowledge was and his basic intent.

It's not sufficient to give the individual security from how his conduct will be in the future interpreted.

And this is the problem of the knowing.

Secondly, when we get into the area of vagueness of the Arizona statute, it's very interesting that the Arizona Supreme Court had to redefine -- in its first decision had to redefine the meaning of advocacy.

Then we go back, after the Baggett versus Bullitt, the Arizona Supreme Court had to redefine the word “aid” in light of Baggett versus Bullitt.

On its question of vagueness, Judge Bernstein, in the second opinion, he was told that there were open questions of vagueness, the question of what the statute means as to membership in an organization which has as one of its purposes the forcible overthrow of the government and how much knowledge is necessary.

There's no definition within the statute or in the determinations of it of how much knowledge an individual has to have of the unlawful purposes.

And, in your Baggett versus Bullitt, and Cramp versus Florida, the standard which you placed in connection with statutes of this type is that the terms of the statute must be susceptible of objective measurement, and there is no objective measurements of the term “had knowledge of”, how much knowledge?

We don't know.

The individual is put on a burden of defining a lot of terms which apparently the Supreme Court of the State of Arizona has had difficulty with in a number of different ways.

If the statute was so clear, it seems rather strange that our Supreme Court had to redefine its terms twice and yet, this is the burden that's put upon the individual and still hasn't decided what some of the terms mean.

And, secondly, and I think as pointed out by Justice Black in his dissent in the Scales case, one of the dangerous things of such legislation is this, is the great amount of judicial operation on the statute of adding new meanings so that in the State of Arizona now aid those no longer mean aid and advocacy does no longer mean advocacy.

It means something different from what it said originally in the statute.

The danger of rewriting this legislation by judicial interpretation to -- in an attempt to make -- come up to constitutional standards is that, one, the individual has no right to rely on it.

If the Court changes its mind five years from now or two years from now, the defendant has no constitutional right that's involved.

Ex post facto provisions of the constitution don't apply.

Stare decisis is not a binding upon the Courts.

All these interpretations may be allowed to be changed and the defendant would have no relief on a charge of perjury in the State of Arizona.

The State of Arizona is as confused as it apparently is in terms of the meaning of its own statute, notwithstanding that the -- that this Court had already determined some of the terms of advocacy.

It seems to be an undue burden to put upon the laymen.

And if you wish to understand the attitude of the State Supreme Court and what the individual is against in the State of Arizona in terms of its own Court and its interpretation, I wish to read to you part of the first decision of our Court written by the same Chief Justice who is now presently Chief Justice.

He said in the first decision on this case.

The breadth and intolerance that -- intolerance of the Arizona Su -- well, let me state it.

The state's interest demands that public employees refrain from associations out of which even unconscious corruption may comfort those who seek world domination.”

It goes on to second.

“The risk that the insidious poison may be spread is not one the people of the state are willing to accept.”

When one's own Supreme Court talks about associations out of which even unconscious corruption may arise and then, we are asked to sign an oath with provisions as vague as past membership in terms of subsidiary organizations, in terms of organizations that have as one of their purposes the forcible overthrow, this statute, I think, fails on vagueness.

One other aspect of the case, I think, very much linked to the same problem is the question of whether or not this type of legislation is in effect a bill of attainder.

I know that the history of bills of attainder concept with this Court, as with the doctrine of mens rea have not receive a great deal of consideration in recent times but there at appears to be at least a growing interest on the part of this Court with the attendant concepts of self-incrimination and bills of attainder.

It seems rather obvious in this matter that when an individual is put to the position without a hearing of having to sign an oath or not sign this type of affirmation, that if for any reason, he feels duty bound not to sign it, on the basis he's guilty, because that would make an assumption, wouldn't it?

We -- we'd be doing the same thing which happens when people take the Fifth Amendment.

We'd be making the assumption that they were guilty and that assumption we may not legally take, but it's the assumption that's taken in our society because our very reaction bespeaks of the reaction in our society.

The minute he doesn't take it, he's proscribed, he's immediately denoted in our society, and this is by legislative quiet.

There's no adjudicatory process and one of the failures of the bill of attainder -- one of the reasons for the bills of attainder is the prohibition against this lack of adjudicatory process.

In essence, it's very similar to the concept of procedural due process or the denial of procedural due process.

The bills of attainder might be forward on that concept and the same sort of concept is a denial of procedural due process because of the historical relationship of denying an adjudicatory process to it.

And, in this sense, Mrs. Elfbrandt and all the other employees of the State of Arizona put into an ambivalent position where either you sign or you don't sign, and if you don't sign, you are considered by our society to be guilty.

On this basis -- on the basis of the previous decisions in this State, in this Court, construction of the constitution, we therefore feel that the statute is unconstitutional as being unconstitutionally vague and for denial of procedural due process.

Chief Justice Earl Warren: Mr. Haggerty.

Argument of Philip M. Haggerty

Mr. Philip M. Haggerty: May it please the Court.

I think it is a good idea to consider as our constitution directs us to return to basic principles and in this case, to return to the law itself.

There are three things which are prohibited which are made crimes.

One is the act of overthrowing the government by force or violence or aiding in the commission of an act to overthrow state government by force or violence.

I think it is admitted but certainly not attacked that this is a valid piece of legislation.

The second prohibition is against advocating the overthrow of government by force and violence.

The statute is limited to the word “advocate.”

The third prohibition is becoming or remaining a member of the Communist Party or any other organization, knowing that it has for one of its purposes, the overthrow of the government by force or violence.

These prohibitions apply to all citizens of the State of Arizona generally and specifically to all public employees by reason of two different statutes.

The statute relative to public employees has been attacked, first of all, on the basis that provides for no administrative due process that a person may lose his possession without having a chance to explain at the administrative and procedural level his reasons why he does not wish to take an oath.

I think it is simply and best put in the dissent in Nostrand versus Little by Mr. Justice Douglas.

The administrative process can serve no purpose.

No Tucson School Board, no Gila Bend City Council, no City of Phoenix Council could excuse a person and say, “Alright, you can work and get paid if you don't take the oath.”

They simply do not have that authority.

This is not a forum in which explanations or defense would do any possible good to either the administrative agency or the person.

There is no function to be served by allowing or requiring that somebody explain or defend to an administrative agency.

Justice Byron R. White: Yes, but it's suggested that's the very vice of the statute.

Mr. Philip M. Haggerty: If nothing can be accomplished by the statute, if no right which previously existed was taken away and no new right is created, thus the status of the person has not changed.

Justice Byron R. White: But if a --

Mr. Philip M. Haggerty: He can be fired from public employment for being a democrat or a republican.

Justice Byron R. White: I gather, after you sign this oath, you sign it and after you -- you not only promise what is stated in the oath and you not only disclaim what is stated in the oath, but you disclaim also that you're not a member, for example, of any of these organizations at that time.

Mr. Philip M. Haggerty: At the time that it is taken.

Justice Byron R. White: It doesn't refer to the future, except in terms of a promise.

But if you -- if you happen to be a member of one of these organizations at the time you signed the oath, you're subject to perjury and prosecution.

Mr. Philip M. Haggerty: If you have a concomitant fact that (Voice Overlap) --

Justice Byron R. White: Now, just what if you didn't know what this was all -- what these organizations really were and you refused to sign the oath because you didn't know and the statute didn't give you a hearing?

Mr. Philip M. Haggerty: What purpose could a hearing do?

For that matter, what could a purpose in a -- could a hearing at a court do?

Is this Court to require that a person has a right to go to a Superior Court and get a declaratory judgment on a organization, the makeup of which or the membership of which or the purposes of which nobody knows?

What can anybody do?

Justice Byron R. White: Well, somebody must know or you wouldn't lose your job over it.

Mr. Philip M. Haggerty: You can't lose your job until you --

Justice Byron R. White: And it's also had at least --

Mr. Philip M. Haggerty: -- have been convicted in a court of law as a part of the criminal process.

Justice Byron R. White: The employee might be put to a little clearer choice though by a hearing.

Mr. Philip M. Haggerty: He can only be fired if he were convicted of committing perjury.

Justice Byron R. White: No, no (Inaudible) --

Mr. Philip M. Haggerty: He can't be fired by the agency.

Justice Byron R. White: Well, if he signs the oath?

Mr. Philip M. Haggerty: If he signs the oath, he can't be --

Justice Byron R. White: Oh, I know but --

Mr. Philip M. Haggerty: -- touched by the agency.

Justice Byron R. White: -- he doesn't sign the oath, he can certainly be fired.

Even if the reason --

Mr. Philip M. Haggerty: They cannot be paid.

Justice Byron R. White: Even if the reason he didn't sign it is that he didn't understand what his choices were, namely --

Mr. Philip M. Haggerty: He cannot be fired.

He can only be suspended from receiving remuneration, but he cannot be fired for refusal to sign the oath.

Justice Byron R. White: You draw the difference, if you want to between those two things.

Mr. Philip M. Haggerty: Well, it have been precisely drawn in this case.

The Tucson School Board was advised that they had no right to discharge Mrs. Elfbrandt.

The most that they could do was suspend her from payment and she is still teaching where she has been.

Justice Hugo L. Black: Isn't there a Communist Party in Arizona?

Mr. Philip M. Haggerty: I frankly do not know.

I think we may have some old Wobblies back and among us.

Justice Hugo L. Black: Isn't that --

Mr. Philip M. Haggerty: But there is no organized party in Arizona.

Justice Hugo L. Black: Do they have a law?

Mr. Philip M. Haggerty: Pardon me?

Justice Hugo L. Black: Is it against the law to have one?

In --

Mr. Philip M. Haggerty: Yes.

Justice Hugo L. Black: -- Arizona?

Mr. Philip M. Haggerty: Yes.

As part of the same statute, it cannot qualify as a legitimate political party.

Justice Hugo L. Black: Well, what Communist Party is --

Mr. Philip M. Haggerty: Pardon me?

Justice Hugo L. Black: What Communist Party is referred to in the statute?

Mr. Philip M. Haggerty: The Communist Party of United States.

Justice Hugo L. Black: Well, is there a Communist Party of the United States now?

Mr. Philip M. Haggerty: There's some question as to that, I suppose, as a factual matter.

I don't know.

But there -- last time, there was a communist party appearing on the ballot in Arizona, I think it was in 1944 or 1948.

I'm not sure.

None has appeared since then even though, in the intervening period, it probably illegal to could have qualified.

Chief Justice Earl Warren: Suppose a man belonged to some organization that had been cited by the Un-American Affairs Committee of the Congress and he was -- he had no knowledge himself as to this being a communist organization, but it was cited by that committee as being a communist front organization or some other communist organization and he was working for the state and he was afraid he might go to jail for perjury if he signed the thing.

How would he know whether he could safely sign that affidavit or not?

Mr. Philip M. Haggerty: He will be in the same position as you placed the Union official in the Douds case.

He can resign from the organization and then sign the oath.

Chief Justice Earl Warren: Well, I know, but it's never been definitely proved in any court that this organization is cited by the Un-American Affairs Committee is a communist organization, is communist-controlled, or anything else.

It just says that it is.

That's all.

Mr. Philip M. Haggerty: He cannot be convicted unless he knows that it is -- well, the fact as it has been cited by a committee is of no bearing.

We do not have the Louisiana situation of any presumption or -- of either the Attorney General opinions of the United States or of any --

Chief Justice Earl Warren: Well, suppose it was --

Mr. Philip M. Haggerty: -- hearing.

Chief Justice Earl Warren: Suppose it was so when it had been put on the list by the Attorney General and he claims that it isn't and he want -- as far as he knows, and he wants to know whether he can continue his employment without taking that oath because there's no one to tell him whether that -- whether he'd be in danger or not.

Mr. Philip M. Haggerty: There are times, I suppose, in any criminal Act where your chance of being proved guilty or innocent depends upon your knowledge and your convincing the jury of your particular knowledge.

If he knows that it's not an organization or, as far as he is concerned, it is not an organization dedicated to the overthrow by force or violence, he is not guilty of a crime.

Chief Justice Earl Warren: Even though the Attorney General of the country has put it on the list as a communist-controlled organization?

Mr. Philip M. Haggerty: That's the Attorney General's opinion nor to be hearsay wouldn't even be admissible in evidence against the man.

Chief Justice Earl Warren: Alright, are you confident that your reports would hold to that view?

Mr. Philip M. Haggerty: I believe they would, yes.

The --

Chief Justice Earl Warren: What --

Mr. Philip M. Haggerty: -- Attorney General --

Chief Justice Earl Warren: What do you do with the statement that Mr. Morgan just read from your Chief Justice out there?

Mr. Philip M. Haggerty: I believe it is --

Unknown Speaker: Looking at a --

Mr. Philip M. Haggerty: -- a different aspect as to whether or not the state had a right to prohibit its members from becoming or being associated with organizations.

The advisability of the possible dangers does not go to the criminal conviction necessarily as determining whether or not there is a reason for the law at all.

That was the argument that was being answered in that particular phraseology, in that particular section.

And I think --

Chief Justice Earl Warren: Do you know --

Mr. Philip M. Haggerty: -- the decision is likely (Voice Overlap) --

Chief Justice Earl Warren: Do you know of --

Mr. Philip M. Haggerty: Always have to be read by their entire Act.

Chief Justice Earl Warren: Do you know of any Act making conduct perjurious which is done in the future even though there was no intent to do it at the time the oath was taken?

Mr. Philip M. Haggerty: The oath which is required of all public employees of the United States is subject to a specific section of the United State Code, Title 18 Section 1621, which report -- which makes it a crime punishable by five years imprisonment, to make a false statement is not perjury, to make a false statement when required to make a statement by law --

Chief Justice Earl Warren: Well --

Mr. Philip M. Haggerty: -- followed by the same (Voice Overlap) --

Chief Justice Earl Warren: Suppose --

Mr. Philip M. Haggerty: -- would include future conduct.

Chief Justice Earl Warren: Suppose I make -- I make one of these affidavits.

I have no communist associations of any kind and two or three years later, I do join some organization.

Is there any comparable law that makes that conduct of that kind perjurious, so far as the original affidavit is concerned?

Mr. Philip M. Haggerty: I can think of none.

Chief Justice Earl Warren: Well, wouldn't this do (Voice Overlap) --

Mr. Philip M. Haggerty: The statute says --

Chief Justice Earl Warren: This would --

Mr. Philip M. Haggerty: -- shall be punished as for perjury, and that just really means --

Chief Justice Earl Warren: This would do that.

Mr. Philip M. Haggerty: -- for 14 years.

Chief Justice Earl Warren: This would do that, wouldn't it?

Mr. Philip M. Haggerty: Yes.

Chief Justice Earl Warren: And, do you think that's alright?

Mr. Philip M. Haggerty: It's simply a definition of what the perjury statute means and our legislature can call any crime by any name.

I don't think --

Chief Justice Earl Warren: Do you think (Voice Overlap) --

Mr. Philip M. Haggerty: -- designating something as perjury means it has to be an oath sworn to an open court.

Chief Justice Earl Warren: Do you --

Mr. Philip M. Haggerty: The law says, “shall be punished as” for perjury.

Chief Justice Earl Warren: Do you think it would be constitutional to say that anyone who does anything in the future which is inconsistent with an oath that he has taken in the past is perjury or will be punished as perjury?

Mr. Philip M. Haggerty: I can say there's no difficulty in that.

Chief Justice Earl Warren: Do you think that's alright?

Mr. Philip M. Haggerty: I think every United States employee is under the same burden, but they take this oath and they then become a member.

They can be subject to the provisions of the Code, which in effect is a punishment for perjury.

By calling it perjury, I think, does not raise a constitutional issue.

If the state has a right to prevent its employees from either advocating or committing acts in the overthrow of the government by force or violence or becoming members, if it can make that a crime, then what they call it or the length of term is hardly a constitutional issue.

Chief Justice Earl Warren: Well --

Mr. Philip M. Haggerty: It's merely a name.

Chief Justice Earl Warren: The only reason I asked that is this, I understood you to say that it was a crime for anyone to do the things that are proscribed by this Act, whether he's a public servant or not.

Mr. Philip M. Haggerty: Yes.

Chief Justice Earl Warren: Isn't that right?

Well, then why, unless they intend to make it in the nature of perjury, do they -- they put -- add this condition to the oath of a public servant?

Why wouldn't he just be --

Mr. Philip M. Haggerty: These I do not know.

Chief Justice Earl Warren: Why wouldn't he just be bound by the other laws of the state in that regard?

Mr. Philip M. Haggerty: They are and the other law has -- contains a higher penalty.

It's up to 20 years and the punishment for perjury is only 14.

Chief Justice Earl Warren: Yes.

Mr. Philip M. Haggerty: The only particular reason I think, is found in subsection (a) so that all employees will have a chance to read this, to present it as a unified thing.

I think it's a matter of legislative draftsmanship and technique.

Everybody is under the same burden.

A choice can try -- the state could prosecute a public employee under either one, but not under both like other statutes in the State of Arizona which we've pointed out.

I think this is just a question of legislative draftsmanship and technique to -- they belong in different sections of the Code.

One is a criminal law, Title 13, the other is Title 38 which applies to public employees.

I think it's merely a question of draftsmanship.

Justice Abe Fortas: Is there any indication as to what the state view is, for purposes of this statute, of these Wobblies that you referred to as being back in the hills by which I understand you to mean the numbers of IWW?

Mr. Philip M. Haggerty: No, I think I doubt it.

I doubt if there even are any now.

I don't know, but there is only a one time we had some trouble in Arizona.

Justice Abe Fortas: Yes, I know you did.

Mr. Philip M. Haggerty: But there's no relationship to that whatsoever.

Justice Abe Fortas: But there is now.

What -- is there anything indicating whether the state would regard that as one of the organizations here, membership in the IWW in the years past?

Mr. Philip M. Haggerty: Well, past activity would be of no bearing anyway, no, they're certainly nothing.

Justice Abe Fortas: Well, when does membership cease some of those fellows that used to be back in the hills if they're not still there?

Wouldn't it -- when do they cease being members of the IWW?

Mr. Philip M. Haggerty: Well, as our Supreme Court said, membership in the Arizona law, is according to what you have said membership means under the Smith Act.

It has to be active membership --

Justice Byron R. White: (Inaudible)

Mr. Philip M. Haggerty: -- and I don't think they've had any chapter meetings for some time.

Justice Byron R. White: Could there be pleadings about now?

Mr. Philip M. Haggerty: I believe you've so said in Scales and Yates.

Justice Byron R. White: Well, how about in Arizona?

Mr. Philip M. Haggerty: We have, in our decision, in effect, tried to incorporate --

Justice Byron R. White: The court didn't --

Mr. Philip M. Haggerty: -- your decision.

Justice Byron R. White: The Court didn't say that in this case, did it?

Mr. Philip M. Haggerty: In the first decision, it specifically mentioned those cases.

It stated that the legislature --

Justice Byron R. White: Do you think (Voice Overlap) --

Mr. Philip M. Haggerty: -- knew of them --

Justice Byron R. White: Do you think -- do you think the law of Arizona is that membership as used in the laws involved in this case, membership means what it means or what it -- what the Smith Act, the meaning is?

Mr. Philip M. Haggerty: Yes.

That is the position the state took before the Supreme Court of the State of Arizona that that is what the meaning should be and that is what we take here.

Justice Byron R. White: Where?

What's the citation of the Supreme Court has actually said that?

Mr. Philip M. Haggerty: It has referred to the case and said --

Justice Byron R. White: I know.

Is that all it said?

Mr. Philip M. Haggerty: In its language, (Voice Overlap) --

Justice Byron R. White: (Voice Overlap)

Mr. Philip M. Haggerty: -- that the legislature was aware of the language of these cases.

Although the legislature did not specifically mention them, it did say that it had considered (Voice Overlap) --

Justice Byron R. White: (Inaudible) you can't cite -- there is any Court holding to that effect, do you say?

Mr. Philip M. Haggerty: No, but they would be so advised by the Attorney General's Office, and they were advised in the state argument that this is the meaning we want, what you have said, and that is what we would say to this Court today, that we would go by your decisions in these matters.

Justice Byron R. White: So which -- do you think we should accept that as a clause on the statute?

I mean, is it -- as a --

Mr. Philip M. Haggerty: As a superimposition --

Justice Byron R. White: As authoritative interpretation of the statute?

Mr. Philip M. Haggerty: Yes, the same way as this Court did for Maryland in the Duran case.

Justice Byron R. White: Just like we should accept what the Supreme Court said about other phrases of this case, about what “aid” means or “advocacy” or --

Mr. Philip M. Haggerty: Aid is -- aid in the commission of an act.

It's not aid as it appears in Baggett versus Bullitt.

Justice Byron R. White: Oh, I understand that.

Mr. Philip M. Haggerty: And advocacy --

Justice Byron R. White: But anyway --

Mr. Philip M. Haggerty: Advocacy wasn't really raised in the first case, I don't believe.

It was only discussed in the remand.

In other words, the vagueness issue was not either strongly argued, it was raised but wasn't considered so much in the first decision as it was in the second in light of the remand of this Court --

Justice Byron R. White: But anyway we are bound --

Mr. Philip M. Haggerty: -- specifically referring to it.

Justice Byron R. White: We're bound by your Court's interpretation of that -- the meaning of that -- of those words, I suppose, and you think we're also -- should accept that -- the membership.

Mr. Philip M. Haggerty: Yes.

Justice Byron R. White: The law is.

Justice William J. Brennan: Mr. Haggerty, I wonder -- is the reference you're making to what appears at 47 of the record?

Mr. Philip M. Haggerty: I'll have to find out which case that is.

Justice William J. Brennan: I think it's -- I understood this was the first case, isn't it?

Mr. Philip M. Haggerty: Yes, this is the first case.

Justice William J. Brennan: Is that what you're talking about?

Mr. Philip M. Haggerty: Yes.

Justice William J. Brennan: What -- is this what you say adopts the Scales test of membership?

Mr. Philip M. Haggerty: Yes.

Justice William J. Brennan: Well, how do you get that out of this, may I ask?

Mr. Philip M. Haggerty: Because if they, there was another decision, there was another (Inaudible) of the case.

Justice William J. Brennan: (Inaudible) on page 47, which I suppose --

Mr. Philip M. Haggerty: No, I think no, it's found on page 44.

We assume that the legislature was not unaware of the decision of the Supreme Court of the United States -- decisions, pardon me.

Justice William J. Brennan: No, I know but look (Inaudible), therefore used the word “advocacy.”

They were talking there about advocacy.

Mr. Philip M. Haggerty: Membership was not considered in that case and perhaps --

Justice William J. Brennan: Now, what --

Mr. Philip M. Haggerty: -- was never been fully considered.

Justice William J. Brennan: What's this mean at page 47?

Speaking of subdivision (e), I'm quoting from the middle paragraph at 47.

“It prohibits any membership in any organization having for one of its purposes the overthrow by force and violence the Government of the State of Arizona or any of its political subdivisions, including passive and nominal membership.”

Cf. Scales v. United States.

It seems to me, the Supreme Court had ruled a contract that said that membership here is much broader than it was in Scales versus United States.

Mr. Philip M. Haggerty: I do not believe it has that right to do so.

Justice William J. Brennan: Well, I'm -- (Inaudible) you've been telling us your Supreme Court has adopted the Scales test and it seems to me what I've just read to you indicates that they rejected the Scales test for a broader one including passive and nominal membership.

Mr. Philip M. Haggerty: I believe it went on in its later decisions, the second one.

Justice William J. Brennan: Oh, I -- well, that maybe so.

I think you referred it to be the first decision.

I don't recall it, the second.

Mr. Philip M. Haggerty: Advocacy was in the first decision.

Membership was more, I believe, in the second.

Justice William J. Brennan: Where is this cited?

Mr. Philip M. Haggerty: There, they go into this guiltless knowing behavior and --

Justice Byron R. White: But certainly what they say about advocacy doesn't mean a whole lot about membership.

Justice William J. Brennan: If this is the second, beginning at page 72, I don't even see a reference to membership and certainly no citation --

Mr. Philip M. Haggerty: No, it does not.

Justice William J. Brennan: -- to Scales.

Mr. Philip M. Haggerty: I'm sorry.

Seven -- the second one is mostly concerned with vagueness.

Justice William J. Brennan: Well, you say the -- do you say the Attorney General took this position before the Court, before his own Court that it (Voice Overlap) --

Mr. Philip M. Haggerty: I cannot recall any specific question.

This is always our approach.

That's the decisions of this Court, first of all, as to advocacy and then it's to act to the membership should be the guidelines.

Justice John M. Harlan: (Inaudible)

Mr. Philip M. Haggerty: I don't know how much of an issue was actually made in membership, frankly, I don't, can't recall.

I have the briefs --

Justice Byron R. White: Are there any adaptations?

Mr. Philip M. Haggerty: Pardon me?

Justice Byron R. White: Are there any adaptations?

Mr. Philip M. Haggerty: In Arizona?

Justice Byron R. White: Yes.

Mr. Philip M. Haggerty: Arising out of this law, no one has been prosecuted and there are no other pending cases.

Justice Byron R. White: Is there no other constructions that (Inaudible)?

Mr. Philip M. Haggerty: No, nobody else has raised the issue, they say, they haven't.

I have no idea how many -- how many persons in the State of Arizona might have left employment because of this or not.

Nobody would have any idea.

I think in the questions, I believe Mr. Justice Stewart pointed out, people might have left and nobody knew why.

And this might very well happened if people did object to it.

Our appendix does show that there was a pretty heavy turnover in state government.

It suggests some of the reasons there for.

I think Mr. Morgan in his opening argument, almost asked this Court to say that the Fourteenth Amendment requires that every public servant in every state have civil service tenure.

I don't think there is any such right.

Public employees in the State of Arizona by enlarge do not.

University professors do not and they'd be fired by the Board of Regents for -- or in the judgment of the Board of Regents seems to be in the best interest of the universities.

Suppose --

Justice Potter Stewart: University professors do not have tenure in the State of Arizona, did you say?

Mr. Philip M. Haggerty: University professors, not by statute.

I am not completely familiar with the regulations of the Board of Regents, but not by statute.

The statute specifically says that they may be discharged by the Board of Regents when it appears to be the Board -- in the judgment of the Board of Regents, in the best interest of the university.

Justice Potter Stewart: They have much trouble in getting faculty down there?

Mr. Philip M. Haggerty: Apparently not and I am not too familiar with it.

But the schools have increased considerably in size and I assume that the staffs had increased in proportion.

We have had bills introduced in the legislature to limit the number of students.

I don't know if that has any relation to the number of faculty members available or just the physical plans involved.

As I've pointed out, most state employees have no tenure rights.Some are required to by virtue of agreements of the Federal Government.

One agency has it pretty much on its own, for no particular reason except they wanted to get out of politics.

And in concurrence with this, they passed a Hatch Act of it's -- of their own.

I think this is of some importance in our consideration.

The Federal Government has severely limited the area of expression and association and activity of Federal Government employees and millions of state government employees by their Hatch Act which prohibits them from talking in an area which is certainly of governmental interest no matter how you look at this clear and present danger argument.

A person is forbidden to take an active part of the political management or in political campaigns.

A government -- Federal Government employee is forbidden to participate in any strike or to assert the right to strike against the Government of the United States or of any agency, both under the Hatch Act -- both in Title V, United States Code, Section 118, one is (i) and the other is (p).

The Congress has saw -- seen fit to regulate the association of many of its employees and their activities in a certainly regulated free speech of governmental employees.

They have allowed exceptions in the area around Washington for local political activity that by enlarged, government employees cannot take an active part in politics.

And any state employee of any agency receiving federal funds is under the same prohibition.

We had state, Damon, Fiche, Welfare and Employment Security, many other state agencies.

I think that that is a clear example of the Court's attitude that every now and then, the best interest of the people have to be placed above the particular interest of a few of the people in either freedom of speech or in freedom of association.

I don't think any of the other cases that this Court has handled in this particular area would be any indication that our law is invalid.

The cases which have been rejected recently Dombrowski versus Pfister from Louisiana.

The language used there was advocate, abet, advice, or teach the overthrow, anyone to overthrow or destroy by revolution, force and violence, or other unlawful meanings.

And later on refers to unconstitutional or illegal means.

Here in Arizona, the acts prohibited are advocacy of the overthrow of the government by force or violence and that's it, beside from actual acts or aiding in the commission of an actual act.

In the Washington case, Baggett versus Bullitt, which this Court apparently was interested in its remand order.

The particular law involved was interpreted and I think reasonably accurately that persons require -- are required to swear that they understand this oath and they might reasonably conclude that any person who aids the Communist Party or who teaches or advices known members of the party is a subversive person because such teaching or advice may now or at some future date aid the activities of the parties.

The Arizona law simply does not have the same language.

It cannot be compared to Baggett versus Bullitt because it is simply not the same law.

It doesn't say the same thing and I think that if there is a comparison between a law and -- one law and another and the comparison fails, the laws must stand.

There are some mentioned of the bill of attainder, both in the brief and in the arguments.

I think the recent decision of this Court in United States versus Brown completely answers the problem.

The federal statute issued then anybody who had been a member of the Communist Party for five years prior to becoming a Union official was guilty of a crime.

The only choice he had was to quit the Union or incur a criminal liability.

This Court compared it to the older Act sustained in the American Communications Association versus Douds where there was no fiver year prior period mentioned and stated that the intention was to forestall future dangerous conduct and that there was no one who by a voluntary alteration of the loyalties which impel him to action can become eligible to sign the affidavit.

We cannot conclude that this action is a bill of attainder.

We have the same thing in Arizona.No past conduct is commented on in any way.

It cannot be the basis for any separation from public employment.

So, we simply do not have a bill of attainder issue.

As I said before, I think there is certainly no court or public opinion.

A person may not re -- sign the oath, may refuse for any number of reasons, and nobody need ever know about it.

The only reason why it is known is, if they choose to make the issue themselves.

And I think having chosen to become a (Inaudible), they cannot complain about it.

I simply think that there are no prior decisions of this Court which would indicate that the very simple and clear language of the Arizona law is unconstitutional.

We have gotten rid of, by anticipation, the words which were found to be vague in Cramp versus the Board of Public Instruction, "aid, abet, advice, or lend counsel or assistance to” is not in our law.

We don't have the words that were found defective in the Washington statute in Baggett versus Bullitt.

We don't have the complicated machinery of presumption of guilt by membership in an organization that might have been cited by non-activity Americans -- not (Inaudible) -- pardon me, the Committee for Un-American Activities that was part of Louisiana law condemned in the Dombrowski case.

We have no machinery whereby the Attorney General or anybody else goes out and investigates or questions people about activities.

The Arizona legislature was quite clear in its -- the statement of a judiciary committee, that's part of our appendix, saying that these things are really the job of the Federal Government and they ought to do it and let them do it.

The only thing that the Arizona legislature created were three simple crimes, the first one, there can be no question about it.

The second one I think is also not subject to any serious doubt whatsoever.

Chief Justice Earl Warren: Could you name those crimes please?

Mr. Philip M. Haggerty: Either acting to overthrow or aiding in the commission of an act to overthrow the government by force or violence.

Chief Justice Earl Warren: That's the first one.

Mr. Philip M. Haggerty: That's the first one.

The other one --

Justice Potter Stewart: The government of -- what government?

That's what --

Mr. Philip M. Haggerty: The State of Arizona or the United States.

Justice Potter Stewart: Either?

Mr. Philip M. Haggerty: Either or.

Justice Potter Stewart: Is that clear?

Mr. Philip M. Haggerty: Well, no.

In our law, it's only State of Arizona.

I'm sorry.

The government of this state or any of its political subdivisions, yes, advocating the overthrow.

Justice Potter Stewart: Excuse me.

I'm sorry to have interrupted you.

Mr. Philip M. Haggerty: Yes, pardon me, a person who (Inaudible) -- knowingly or willfully advocates the overthrow by force or violence of the government of this state or any of its political subdivisions.

And, the third one is a person who knowingly or willfully becomes or remains a member of the Communist Party of the United States, the same somewhat lengthy section that Mr. Morgan earlier read, or it's successors or of any other -- any of its subordinate organizations or of any other organization having for one of its purposes the overthrow by force or violence of the Government of the State of Arizona and said person had knowledge of said unlawful purpose of said Communist Party of the United States or of said subordinate organ -- or other organization.

So, it's actual acts or aiding in the commission of an act.

Justice Abe Fortas: Counsel, do I correctly understand that two of the five Justices -- there are five, aren't they --

Mr. Philip M. Haggerty: Yes.

Justice Abe Fortas: -- in the Supreme Court of Arizona?

That two of the five Justices were of the opinion that a hearing would be necessary, an opportunity for a hearing would be necessary prior to requiring that the affidavit be signed as a condition of public employment.

Mr. Philip M. Haggerty: In the first decision, yes, but they were special concurrences and they're somewhat --

Justice Abe Fortas: (Inaudible) that was there.

That was the basis of the concurrences --

Mr. Philip M. Haggerty: Yes.

Justice Abe Fortas: -- however.

And do I correctly understand that the Chief Justice of the Arizona Supreme Court in his concurrence said that the statute relevant part was saved here because of -- there was an opportunity to petitioner to obtain a hearing under some other law because she was a school -- temporary school teacher, something like that, right?

Mr. Philip M. Haggerty: Yes.

Justice Abe Fortas: Now, as I understand it, the basic premise on which the Chief Justice's concurrence relied was that it cannot constitutionally deprive people of an opportunity for public employment if the basis is discriminatory and reasonable, correct?

Mr. Philip M. Haggerty: By -- it may not in a loyalty oath requirement such as this one, make refusal to take the oath a conclusive basis for exclusion from public service.

That's (Voice Overlap) --

Justice Abe Fortas: And do you disagree with that premise?

Mr. Philip M. Haggerty: Yes.

Justice Abe Fortas: You do?

Is it your proposition -- is it your submission that the state may exclude people from public employment on any basis however discriminatory?

Mr. Philip M. Haggerty: By our own Civil Rights Act, they may not do it on the basis of either sex or color or religion.

Justice Abe Fortas: Otherwise, they may do it?

Mr. Philip M. Haggerty: Unless there is some intervening special statute, some agencies are protected (Voice Overlap) --

Justice Abe Fortas: So, I take it that you do take the issue with the concurring opinion of the Chief Justice of the Supreme Court of Arizona on that point, that is to say, whether a person may be deprived of an opportunity for public service on unreasonable or discriminatory basis?

Mr. Philip M. Haggerty: I would doubt that this is an unreasonable or discriminatory basis.

Justice Abe Fortas: I'm asking about the general proposition.

Mr. Philip M. Haggerty: It would be very difficult to say they would -- that you -- I believe most agencies and public bodies can fire the people and may need -- give no reason.

Justice Abe Fortas: So, if you --

Mr. Philip M. Haggerty: If they could show a pattern of discrimination there might be an issue.

In other words, if people were discriminated against on a continual basis in such a way, there could be a pattern, there might be an equitable remedy.

There's no statutory remedy and the matter has never been decided by our Supreme Court.

Justice Abe Fortas: Well, as I understand it, the Chief Justice of your Court in his concurring opinion here said that petitioner represents that she refuses to take this oath because of the moral teachings of her religion.

And that that has nothing to do with subversion and unless an opportunity is afforded to her for a hearing in which she can be relieved of this disqualification upon the showing that her refusal to sign has nothing to do with subversion.

Unless such an opportunity for a hearing is provided then the statute would not be valid at least as applied to her.

Mr. Philip M. Haggerty: Well, I believe our (Inaudible) -- Chief Justice misinterpreted the state in the record in the pleadings.

As Mr. Morgan has said, it's not here so much because she has any direct personal objection.

I think he went a little bit off on that.

This was brought as a class action but I believe he said here today that it wasn't a personal objection in response to a question by Mr. Justice Stewart.

Justice Abe Fortas: Are you saying that that issue is not before this Court, that is to say, an issue presented by a person who says that she is being deprived of her right, if there is one, to have a crack in government employment on a non-discriminatory basis because she's not being given an opportunity for a hearing in which he can show that her refusal to sign the statute has no connection whatever with subversion but is instead based on religious principles?

Mr. Philip M. Haggerty: Well --

Justice Abe Fortas: Is that question --

Mr. Philip M. Haggerty: The attack was brought on the total statute as part of the religious feeling on the part of the plaintiff even though there was no personal direct religious feelings as far as they -- the specific oath was concerned, if it had been divorced from the rest of the statute.

I think the way Mr. Justice Bernstein felt was that -- I think he believed that her belief was confined solely to her religious objection to an oath, as a religious objection, in other words, personal to her only.

But, I disagree with his conclusions entirely that a person -- I believe it could happen where a person could be disqualified for an employment solely because of religion and that there is nothing particularly unconstitutional in that.

For instance, the only crime in our constitution is one which arose out of a religious belief and is still imposed by people solely on religious ground.

Justice Abe Fortas: Do you think the state --

Mr. Philip M. Haggerty: The only Arizona crime in the constitution is polygamy.

Justice Abe Fortas: Do you think the state could constitutionally provide that no Protestant or no Catholics could hold public office?

Mr. Philip M. Haggerty: No.

But I believe there are some -- there could be religions of such a type of belief that they could not legitimately be allowed to hold office.

There are still perhaps, in India today, people who by their religion believe in ritual assassination.

This is a religious belief.

I don't think just putting the name religion on it immediately removes it from state activity.

There are people whom by religion might say that they can only work one or two days of the week that there should five Sabbaths.

Well, obviously, if everybody else in the state is working five or six days a week, I think this would be sufficient grounds that'll exclude them from employment, that they're inefficient and unworkable having them work only two days a week.

They may say that's because of their religion.

The state can say, “You may have your religion but if it interferes with the government so much, you've got to take your choice.”

Justice Abe Fortas: How about excluding -- state law excluding people who won't work on Saturday?

Mr. Philip M. Haggerty: Well, most don't work on Saturday.

That's getting a little close.

It might be considered unreasonable because the interference with the governmental activity would be minimal.

I think it's just simply a question of balancing the judgment at all times.

I know, in the Army, the Seventh Day Adventists were excused from military duty on Saturdays.

They never showed up in formations or drill or parades, and the Army got along with them.

So, I presume the state could also.

Incident -- I think it's simply a question degree and not of being absolute in one way or the other.

After all, we're not abridging their free exercise of religion, but it goes back to the old statement of Justice Holmes that a person has a right to be -- talk politics but not a right to be a policeman.

There has always been some limitation on public employment activities and many of them approach the area of the otherwise untouchable constitutionally protected principles, but the government has a right to bargain a little bit in the interest of all the people which it is suppose to represent.

And, I don't think the bargaining it has done in this case is in any way unreasonable.

I don't think it even begins to create a problem, much less one that would be serious enough striking down a law such as the one which the Arizona legislature passed.

I believe I have some time and I have nothing further unless the Court has some questions.

Chief Justice Earl Warren: And do -- did I understand you to say that there is a statute which makes it a crime for any person to belong to any of the organizations that are proscribed by this Act?

Mr. Philip M. Haggerty: To belong to any organization if they know that one its purposes is dedicated to the overthrow of government by force or violence.

Chief Justice Earl Warren: Does the Act say, “If they know”?

Mr. Philip M. Haggerty: “Knowingly” it says.

Chief Justice Earl Warren: Knowingly.

Mr. Philip M. Haggerty: Specifically, this is the sedition section in there, as 13-707, and, "Said person had knowledge of said unlawful purpose of said Communist Party or of said subordinate or other organization.”

The unlawful purpose, of course, can only refer to the overthrow by force or violence which is the clause immediately preceding.

So, he'd have to have knowledge.

Chief Justice Earl Warren: They have to have knowledge?

Mr. Philip M. Haggerty: And it applies to everyone.

Chief Justice Earl Warren: I'm just wondering what the -- but real purpose of this is, if all of these things equally applied to other people, why do you -- why do they have this subdivision (e) which makes it perjury for a person to do something years after he takes the oath or perhaps he had no intention of doing that before -- at the time he took the oath, why wouldn't they prosecute a public officer or a public employee for doing these things exactly in the manner that it prosecutes other people?

Why do they have to attach this also to the oath, which is the oath that's commonly taken in all states of the Union?

What purpose does it serve to do that?

Mr. Philip M. Haggerty: It serves practically very little purpose.

I think it serves primarily the purpose of following prior legislative acts, such as, you can be prosecuted under the Smith Act but a federal employee can also be prosecuted by virtue of violation of the oath of office which he takes.

They're just following a legislative habit, a demand on the part of professional legislative council to have everything in league and in order and to get the information to the public employees fairly quick.

But it serves no real practical purpose.

I don't think that is something which the notice would create a constitutional issue.

There are two crimes but you can only be prosecuted for one if you're a public employee.

And of course, if you're a citizen, you can only be prosecuted under the one.

But the burden is no higher.

It does not state so here, but the penalty for perjury in Arizona, the maximum is 14 years.

The maximum for sedition under the other Act is 20 years.

So, there is no higher burden.

Thank you.

Chief Justice Earl Warren: Very well.

Mr. Morgan.

Rebuttal of W. Edward Morgan

Mr. W. Edward Morgan: Mr. Chief Justice.

I think that to one as -- speculations why the statute was created, one may speculate also that it was a time of high tension and feelings within our state with some attempt to discipline its public employees possibly without any real understanding of the problem itself.

In connection with the University of Arizona and tenure of university professors, I think the Justice answered -- maybe who asked that question.

The University of Arizona has been centered for lack of procedural due process to its university professors by the AAUP.

I forget which Justice asked that question.

In the -- I noticed that in the State of Arizona, in terms of any commitments made by the Attorney General here today, several things.

One, its elective office of four years term, our office of the Supreme Court is for six years, changing every two years on a term but the Chief Justice, being Chief Justice by the fact that he has the minimum term still to -- of elective office to run.

Justice Potter Stewart: Is that the way Chief Justiceship goes?

Mr. W. Edward Morgan: Yes.

Justice Potter Stewart: The man with the --

Mr. W. Edward Morgan: It gives him a better break at the polls if he's the Chief Justice.

Justice Potter Stewart: The man whose election comes up next.

Mr. W. Edward Morgan: (Inaudible) for reelection.

It's very nice, practical, political answer though.

The -- I think you get to a problem with this -- with the double legislation in this field and I think this Court dealt in part with it in Cole versus Young in terms of federal statutes in question of whether or not it would allow the Federal Government to go beyond in a particular case and apply a rather ruthless application of a man being fired rather than using a longer and more cumbersome and more protective system for firing.

In Cole versus Young, which I think this Court started to recognize that if there are two ways for the government to accomplish an end, that it should accept the one which does the least violence.

And, in the State of Arizona, here, an undue burden is put upon the individual to sign a loyalty oath or sign this oath without -- when there's no real effective need for it because it would be a crime in any event.

But, it places him in a position where he doesn't know what his conduct may be.

One further matter, don't mistake our position in terms of our claim to the First Amendment in terms of the particular individual appellant, Mrs. Elfbrandt's position, vis-à-vis Section (e).

On hers, it is a religious dissuasion of -- as set forth by Justice Fortas, I believe, your -- an explanation and I wish the record would be very clear that we don't withdraw that claim.

We bring that claim before you that there's a violation by a lack of procedural due process of her ability to explain her position.

One other thing on that matter --

Justice Potter Stewart: What is it?

I asked you right at the outset whether -- because of her religion, she object as to taking an oath as such and you said, “Well no, she didn't.”

Mr. W. Edward Morgan: No, not (Voice Overlap) --

Justice Potter Stewart: She confirmed it.

Mr. W. Edward Morgan: That's right.

The hortatory oath.

Justice Potter Stewart: Right.

Mr. W. Edward Morgan: No objection.

The oath -- as containing Section (e) where she could not explain why, vis-à-vis the provisions of (e), what her position is, she objects to it because there she claims her religious affiliations --

Justice Potter Stewart: Is there any indication --

Mr. W. Edward Morgan: -- may be involved.

Justice Potter Stewart: -- of what particular part of her religious beliefs would --

Mr. W. Edward Morgan: No.

And there's no record in this regard and therefore I may not speak on it.

No record was made on this, not within the statement of facts of this case as set forth.

Notice, vis-à-vis the question of the interpretation by the Supreme Court of the State of Arizona, notice that in the Duran case, what you accomplish was that the Attorney General came back with a representation that the oath -- the wording of the oath submitted to the individuals was changed.

And, this is not the case in the State of Arizona.

What we have is, so far, two changes in the wording by two decisions before the Supreme Court, one on advocacy and the other on aid.

And our statute is very loose in the word of “aid” bringing you within the prescription and all the remainder of the words are still left with vagueness.

What type of organization?

What type of membership?

What type of organization having one of its purposes the forcible overthrowWhat in substance is our position unless the Court has some questions?

Chief Justice Earl Warren: We'll adjourn now.

Featured:

Baggett v. Bullitt - Oral Argument

Wed, 16 Jan 2013 22:48:13 +0000

Case:

Baggett v. Bullitt

Media File:

220_19640324-argument

Related Transcript:

220_19640324-argument

Transcript:

Argument of Arval A. Morris

Chief Justice Earl Warren: Number 220, Lawrence W. Baggett, et al., Appellants, versus Dorothy Bullitt, et al.

Mr. Arval A. Morris: May it please the Court.

Chief Justice Earl Warren: We'll wait a moment until counsel gets --

Mr. Arval A. Morris: Sorry.

Chief Justice Earl Warren: Mr. Morris.

Mr. Arval A. Morris: Mr. Chief Justice, Members of this Court.

This case, Baggett against Bullitt, Number 220, is a loyalty oath case involving test oaths as a condition of academic employment at a state university in United States, the University of Washington.

This case presents many issues but one of them which is of paramount significance and one to which I wish to attract my attention and one to which I shall confine the bulk of my argument is whether or not these test oaths function as a prior restraint on academic freedom , freedom of speech, freedom of association and freedom of conscience.

Specifically, does the State have constitutional power under the First and Fourteenth Amendments to require that all professors give up certain of their rights for academic freedom, free speech, association and conscience as a condition of academic employment at a state university?

The facts of the case can easily be stated.

As to the class action brought by 64 people who are intimately connected with the University of Washington, 64 of the -- of the 64 appellants, 56 of them are professors and members of the academic faculty having teaching and/or research duties.

This is set forth in the record at pages 151 to 156.

Thirty-one of the professors have tenure at the University of Washington and 25 of the professors have academic appointments usually for a three-year duration.

Now, these 25 professors do not have tenure but they are not probationary employees in the usual sense of the term but instead they have a three-year appointment that is renewable for another three years at the end of which they will acquire tenure and this is set forth in the record at page 294.

Many of the professors have security clearances from such agencies of the United States Atomic Energy Commission, the United States Air Force, the Navy and the Boeing Company.

Of the eight remaining appellants who are not members of the academic faculty, four of them are students of the University of Washington, two are secretary typists, one is a micro-meteorologist and another is an assistant editor of the University of Washington Press.

Many of the professors at the University of Washington, three of whom are before this Court today, Professor Usinger, Professor Kenneth Reed and Professor Paul Didrickson are aliens.

As set forth at page 102 of appellants' briefs, these oaths have been demanded of the aliens who were involved in this case.

Chief Justice Earl Warren: What is that last sentence?

I didn't get what you said.

Mr. Arval A. Morris: I say as set forth at page 102 of the appellants' brief, the aliens have been demanded that they execute the oaths involved in this case.

Chief Justice Earl Warren: Yes.

Mr. Arval A. Morris: That's also supported by the record at pages 159, page 303 and page 176.

The context within which the professors assert their rights is, of course, the University of Washington.

It was -- it was early founded in our nation in 1861.

It is now in its 2nd century of academic endeavor.

It is older than the State of Washington having been found prior to that.

At the present time on its Seattle campus, it has the faculty of over 1500 professors, a physical plan of about 100 permanent buildings located in area of about 600 acres.

Beyond its Seattle campus, it --

Justice Byron R. White: Is it involved in the record?

Mr. Arval A. Morris: Yes, sir.

They're -- the educational research activities of University of Washington are fully described in the record on pages 89 to 150.

I should only point out that the size of the University, although it has a total of 32,000 students that the size alone is not a measure of its quality but rather the measure of its quality tends to be in the quality of its graduate students, the quality of its professorial staff and, of course, in the physical plant.

It is the 14th largest at the present time.

It is one of the three on the west coast that happened to be members of the American Association Universities and only 40 universities in the nation can claim this membership.

Before turning directly to the materials with respect to prior restraint, I should like to clarify two points, one, raised by the Attorney General in his reply to our brief, namely, that the definitional sections of this oath are not an issue.

I should like to direct the Court's attention to page 160 of the record.

The Attorney General's brief at page 26 argues that the definitional sections of the oath are not before this Court.

In fact and I quote, he says, "One search is the pleadings and pretrial order in vying for a clear request that the definitional sections be declared unconstitutional."

Now, agreed fact 12 on page 160 states, "The other statutes material to this cause and whose constitutionality are contested here require the oath."

These statutes are here and after referred to as requiring the 1955 oath and it was agreed that this would be a shorthand way of expressing what follows.

And our part of the Subversive Activities Act of the State of Washington being Chapter 377, Laws of 1955, Amending Chapter 254, Laws of 1951.

And then following, as reproduced there, a -- the definitional sections so that it appears very clearly at agreed fact 12 that the definitional sections are before this Court and this Court will not search in vain in order to find a request.

Also, this was supported by paragraph (66) of the complaint as that paragraph is buttressed by the Appendix B of the -- appended to the complaint found on page 15 and also as buttressed by page 165 of the record and the District Court opinion on page 239 where the District Court says that these statutes are in issue.

The second point I should like to make is the general one with respect to be these oaths and that is that these oaths are current and prospective.

At page 245 of the record, there is a paragraph from the District Court's opinion.

I shall quote it, "These plaintiffs here are simply required to state that they do not now and will not, in the future, engaged in the proscribe subversive conduct nor become a remaining members of a subversive organization as defined in the statute."

That means that a professor then must swear that he now and for the future, he will restrict his activities to what's required by the statute.

And that which is required by the statute strikes directly at the teaching functions strikes to the heart of the classroom because these also are not a search for data, they are not a request by the legislator -- pardon me, the Legislature of the State of Washington asking the professors whether or not they might be members of the subversive organizations, but what these oaths do in fact is to require that each professors give the right answer, only one answer, namely, that they are not members of a subversive organization or they are not a subversive person.

And then and then only will they qualify for the possibility of hiring so long as they are further substantively qualified in their disciplines.

So that the point I should like to make here is that distinguishing all of the congressional investigation cases, the Committee cases and the State Committee Investigation cases, these statutes do not present the question of whether or not a State may search for data and it's not before the Court and our position is, of course, the State has large powers, strong powers to search for data in a committee inquiry.

What these statutes do is to strike at the very heart of the teaching function.

Now, if I may direct to the Court's attention at page 15 of the record, I should point out what it is that was circulated to the members of the faculty at the University of Washington, that is the oath in question here, Oath Form A.

There are basically two oaths, one is the 1931 oath, which is reproduced in the first paragraph, and the other one is the disclaimer oath in the second paragraph.

Justice William J. Brennan: What page is it?

Mr. Arval A. Morris: Page 15, sir.

Justice William J. Brennan: Of the record?

Mr. Arval A. Morris: Yes, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Arval A. Morris: Yes, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Arval A. Morris: No, we do not object to taking an oath that the professors will support the Constitution of the United States and repeatedly some professors have hyphenated that answer -- and specifically included the Bill of Rights.

There is no objection there.

Justice Arthur J. Goldberg: Under the -- what -- could you point out specifically the (Inaudible)

Mr. Arval A. Morris: Yes.

The first oath requires that a professor by precept and example will do certain things, that is by doctrine, by his speech, by his classroom lectures.

And this was -- this oath applies only to teachers.

It does not apply to any other state employee.

It's aimed right up the teaching function.

It says that, "I will by precept and example promote respect to the flag, the institutions of the United States of America, State of Washington, reverence for law and order, and undivided allegiance to the Government of the United States."

Justice Byron R. White: (Inaudible)

Mr. Arval A. Morris: Specifically, it requires that a professor must teach certain things irrespective of the truth of those things.

Well, as set forth on page 195 of the record, Professor Stull Holt who is a professor of American foreign policy, requires -- states that this requires that he must teach certain probable untruth with respect to United States conduct in the Mexican War and with respect to the United States conduct in acquiring the Danish West Indies and with respect to United States conduct on the occasion of the revolution in Hawaii in 1893.

Justice William J. Brennan: I don't quite get your basic argument.

You say these strikes at the part of the teaching profession and as a matter of policy, we might -- and we might agree with you that -- but isn't up to a State to -- to prescribe the kind of qualifications its -- it wants for its teachers as teachers?

In others words, if a State were benighted enough to do so as a matter of your views of right policy or mind to say that, "I promise if I take a job in this university, I won't take no more graduate courses."

Is -- isn't that up to a State to do -- to prescribe such qualifications as that?

Mr. Arval A. Morris: Perhaps I can answer your question this way, Your Honor.

Underlying that notion is the idea of an employer-employee relationship, the master-servant relationship, that the master hires a servant, the servant shall do exactly what the master says.

Justice William J. Brennan: (Voice Overlap) a mechanic and I tell him to do a job a certain way and the mechanic thinks it's entirely wrong but if he wants to work as my mechanic, that's the way he's got to do the job.

Mr. Arval A. Morris: Yes.

I believe it's undeniable that the claims of academic freedom, which are recognized by this Court in Sweezy, run counter the usual prerogatives of an employer in the master-servant relationship.

Outstanding example of that is that this Court is hired by the United States by -- by Congress in that sense.

Congress doesn't direct this Court how to decide a case.

And I would suggest to the -- to you that the freedom of universities is just as important as the freedom of judges.

Justice William J. Brennan: The --

Mr. Arval A. Morris: There is -- not --

Justice William J. Brennan: -- (Voice Overlap) --

Mr. Arval A. Morris: -- the usual master-servant relationship here.

In fact --

Justice William J. Brennan: The faculty of this University is not created by United States Constitution.

Mr. Arval A. Morris: No.

The analogy doesn't hold to the -- this Court but it would certainly hold to certain courts of inferior status than this Court that is to the District Courts.

And Congress might very well argue that it had that power.

The -- I think it's clear that the claims of academic --

Justice William J. Brennan: Mr. Morris, would you say that (Inaudible) an example of the fact is (Inaudible) right or wrong?

Mr. Arval A. Morris: Yes, we do say that.

We say that in essence.

Justice William J. Brennan: Where -- where do you find that?

Mr. Arval A. Morris: What it -- what this oath requires is that by precept and example, the teacher --

Justice William J. Brennan: (Voice Overlap) --

Mr. Arval A. Morris: -- shall teach undivided allegiance to the Government of the United States.

Justice Byron R. White: And you object to that?

Mr. Arval A. Morris: Yes, we do.

Justice Byron R. White: Then what is that?

Mr. Arval A. Morris: Because we don't believe that, first of all, that any state agency has power to promote undivided allegiance to the Government of the United States when many appellants in this case, professors are members of religious orders who believe that their undivided allegiance belong to God, other members believe that their undivided allegiance belongs to United Nations, other members of the faculty believe their undivided allegiance belong to mankind generally and we don't believe that the Fourteenth Amendment allows any State that power.

Justice Hugo L. Black: What do you mean by undivided?

Mr. Arval A. Morris: Allegiance to no one other than the Government of the United States.

Justice Hugo L. Black: Can you read that as requiring that a man does not belong to the United Nations, does not belong to something else?

Mr. Arval A. Morris: No, Your Honor.

Justice Hugo L. Black: (Voice Overlap) --

Mr. Arval A. Morris: We believe that he can.

Justice Hugo L. Black: I see.

You believe that he can --

Mr. Arval A. Morris: Belong --

Justice Hugo L. Black: -- would you believe that their oath would prohibit them?

Mr. Arval A. Morris: Well, if he were to promote by example and undivided allegiance to an agency other than United States Government --

Justice Hugo L. Black: Undivided.

Mr. Arval A. Morris: Pardon me.

Justice Hugo L. Black: Well, that again comes under the word "undivided".

Mr. Arval A. Morris: Yes.

Yes, it --

Justice Hugo L. Black: The reason I'm asking about it is because I don't know exactly what it means by that.

Mr. Arval A. Morris: Well, the undivided allegiance --

Justice Hugo L. Black: Does that you mean that you -- you construe that as meaning that a man can't like something else if he wants to?

Mr. Arval A. Morris: No.

That -- that's not our argument.

Our argument is that the allegiance that is undivided means the paramount allegiance, the whole allegiance.

Justice Hugo L. Black: Paramount.

You say that the Government couldn't require paramount allegiance to itself.

Mr. Arval A. Morris: Yes.

Else why with the State of Washington enact this measure.

Justice Byron R. White: Well, it just -- it probably can't require except to the conditions perhaps for employment.

Mr. Arval A. Morris: Well, it would seem that that would be stricken at least by Pennsylvania against Nelson where this Court held that a State did not have power to protect the United States Government from subversion.

Justice Byron R. White: This is -- this isn't quite a subversion here in -- in the (Inaudible) though.

Mr. Arval A. Morris: Well, seeking to promote under by allegiance the United States Government.

Justice Byron R. White: -- (Voice Overlap) I mean in the Nelson case, teaching respect to the flag.

Mr. Arval A. Morris: Well, in fact, it's quite clear that the history of this country sometimes could easily be construed as teaching disrespect to the flag, Your Honor.

Justice Tom C. Clark: I thought Nelson has preemption.

Mr. Arval A. Morris: That's correct, sir.

Justice Tom C. Clark: (Voice Overlap) it's been on statute as you've said (Inaudible)

Mr. Arval A. Morris: Yes.

Well, the basic point here is that not only is the congressional policy at stake with respect to fostering cultural exchanges because aliens have assigned their selves.

So in that sense, I think that congressional policy is at stake.

And so that the basic factors behind Pennsylvania against Nelson would be offered to them.

Justice Tom C. Clark: Nelson is not an employee of Pennsylvania.

Mr. Arval A. Morris: No.

He was convicted felon.

Justice Potter Stewart: This isn't necessary to be viewed as an effort by the State of Washington to protect the United States against subversion but rather, as I suggested earlier, the exercise in Washington's rights to establish what qualifications it may want to establish for its -- the people who teaches in the state university.

And if he wants to establish that we don't want to hire anybody who has a graduate degree for instance, that maybe a very foolish policy in your opinion or in mind but why -- why aren't they authorized to do that?

Mr. Arval A. Morris: Well, I would agree that the State of Washington has a wide latitude to -- in its hiring policy.

However, it cannot condition its policy on the basis of unconstitutional factors and unconstitutional condition.

Justice Potter Stewart: Well, I suppose the person has a constitutional right to go to school and go to college and become a PhD.

But if he wants to work in a -- in a university where the State says, "We don't want anybody here who has anything beyond the bachelor's degree," then, do you think he has a constitutional right to work there nonetheless --

Mr. Arval A. Morris: No, sir.

Justice Potter Stewart: -- if he has a PhD?

Mr. Arval A. Morris: I think you put the clear case.

But suppose they said, "You cannot work here because you're a catholic."

Justice Byron R. White: (Inaudible)

Mr. Arval A. Morris: I know of no occasion which the Nineteenth Amendment been incorporated.

Justice Byron R. White: (Inaudible)

Mr. Arval A. Morris: Well, if this Court were to incorporate the Nineteenth Amendment into the Fourteenth Amendment applicable to the States, there might be an argument but that's a very far appeal decision.

Justice Byron R. White: (Inaudible)

Mr. Arval A. Morris: Maybe I would think that the -- the state power would maybe question of a denial of equal protection then it have to find some rational basis for that classification in relation to the teaching function and I'm not really sure if there is one.

Chief Justice Earl Warren: Do you read this, this -- this requirement as -- as a meaning that a religionist could not conscientiously sign it because -- because it says here that it must be undivided allegiance to the flag of the United States, do you interpret it that way?

Mr. Arval A. Morris: Mr. -- Professor Gordon Orians and Professor William --

Chief Justice Earl Warren: No, I don't care about Professor Jordan.

I'm asking you, you're arguing here.

Mr. Arval A. Morris: Yes, Your Honor.

Chief Justice Earl Warren: You do.

Mr. Arval A. Morris: We argue that the member of the Quaker faith, for example, cannot sign this.

Chief Justice Earl Warren: Has your -- has your Supreme Court so interpreted it?

Mr. Arval A. Morris: No, Your Honor.

TYhis case -- this --

Chief Justice Earl Warren: What interpretation has your Supreme Court put on?

Mr. Arval A. Morris: There has been none before our Supreme Court.

The 1931 oath, which is the first paragraph, has not been construed by the State Supreme Court State of Washington.

Justice Byron R. White: The District Court decided to abstain (Inaudible)

Mr. Arval A. Morris: That is -- that is not true.

The District Court --

Justice Byron R. White: They did dismiss that.

Mr. Arval A. Morris: That's right.

The --

Justice Byron R. White: (Voice Overlap)

Mr. Arval A. Morris: -- the District Court dismissed with prejudice having passed on part of the 1931 oath.

I can direct this Court's attention to where the District Court passed on part of the 1931 oath, page 252.

The District Court opinion is divided first of all dealing with the disclaimer oath and then dealing with the oath of allegiance statute.

The last paragraph that runs over from page 252 to 253 says, "Insofar as the arguments heretofore considered, with respect to the loyalty oath, are advanced also in connection with the attack on the validity of the oath of allegiance statute, the preceding discussion of the points raised is applicable."

It --

Justice Arthur J. Goldberg: I assume that the Attorney General (Inaudible)

Mr. Arval A. Morris: Yes, the Attorney General has argued to the contrary but the statutes, the perjury statutes of the State of Washington are clear.

Revise Code od Washington 5.28.060 states, "A false affirmation of an oath is to be deemed perjury equally with the false oath."

Justice Arthur J. Goldberg: (Inaudible)

Mr. Arval A. Morris: No, this Court has not enlightened as to the exact definition of the term "institutions".

There are other words, however, that we believe are quite clear.

Justice Arthur J. Goldberg: Wouldn't you argue that what the Constitution provision (Inaudible)

Mr. Arval A. Morris: Well, I would assume that since the first part of the oath deals with a promotion by precept and example -- pardon me, the first part of the oath requires that the person will support the Constitution and the laws of the United States --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Arval A. Morris: -- I would assume that the institutions are not the legal institutions of the United States.

Justice Potter Stewart: Well, the Constitution would be one of the institutions of United States, wouldn't it?

Mr. Arval A. Morris: Well, I should think that the first part of the oath would already take care of that and that when construing the term "institutions" that it would not necessarily include legal institutions because the laws of the United States and the Constitution of the United States seemed to be first in that oath, a remainder part would come in underneath the term "institution".

Justice Potter Stewart: What -- what do you suppose that it mean?

Mr. Arval A. Morris: Well, I should imagine it means the American way of life.

Justice Potter Stewart: Well, it might include the state liquor stores, Washington State liquor stores, don't they?

Mr. Arval A. Morris: Yes, it does and it may very well include that as an institution.

Justice Potter Stewart: The private corporations out there?

Mr. Arval A. Morris: I should imagine that this could be all encompassing.

Justice Potter Stewart: And the institutions of marriage?

Mr. Arval A. Morris: It may -- it may well include marriage, it may well include -- to the extent that we're talking about the institutions in the United States, de facto segregation in the North and not so de facto segregation in the South.

Justice Arthur J. Goldberg: Home, church --

Mr. Arval A. Morris: Yes.

Justice Arthur J. Goldberg: -- and --

Mr. Arval A. Morris: I --

Justice Arthur J. Goldberg: Those are the phrase you normally (Inaudible)

Justice Potter Stewart: The right to dissent, isn't that one of our institution?

Mr. Arval A. Morris: It would appear that the purpose of this oath is to require a conformity rather than the right to dissent.

If they -- the right --

Justice Potter Stewart: I don't quite see how you get that because of -- of course, you can -- I can argue it.

I couldn't understand how you can but --

Mr. Arval A. Morris: Well when someone --

Justice Potter Stewart: -- institutions it says not limited to institutions, it doesn't say --

Mr. Arval A. Morris: Well, it's limited to the institutions of the United States of America.

Justice Potter Stewart: One of which I should assume would be our constitutional traditions.

Mr. Arval A. Morris: Yes, the traditional aspects, I would imagine.

Justice Potter Stewart: Including the Bill of Rights?

Mr. Arval A. Morris: I should hope so but we don't really know that.

The purpose in enacting this oath, it seems to me, is to promote a conformity of opinion, a -- an assuredness that professors who are lecturing before classes will have a particular point of view else why requiring.

And that, it seems to me, is absolutely forbidden to the State (Voice Overlap) --

Justice Potter Stewart: I suppose, I -- would -- wouldn't it be within the competence of a State to want to have and were therefore require its students to teach, since these are schools in the United States of America, to teach generally within the broad confines of our culture rather than to teach what might have been taught in the jungle in Africa, some about the tribal organization and that the way to -- and that the way to if you're sick, you go a witch doctor (Voice Overlap) --

Mr. Arval A. Morris: I would agree that this is an attempt to prescribe the substantive content of the curriculum.

Justice Potter Stewart: Within the basic framework of -- of our society rather than, as I say, some tribal society in -- in the jungles of Africa.

Mr. Arval A. Morris: I should think that to an anthropologist and teaching anthropology at the University of Washington, as Professor Valentine does at page 198 in the record, that the institutions of the Africans are quite relevant and they may very well be relevant to his discipline.

Justice Potter Stewart: So you don't think it would be competent to a State to say, "Well, you can make and teach all you want about the way other societies are organized but if you're going to teach here in the University of Washington in the United States of America, we'd rather have you devoted, primarily, to our institutions of -- including all our institutions rather than devoted to a tribal organization and society where -- where the witch doctor is the answer to all of everybody's problem."

Mr. Arval A. Morris: I believe the First Amendment goes far enough to enable a man to have the right to teach that the institutions to this country are wrong.

And I should imagine that a professor would have the right underneath the First Amendment to teach that the institutions in this country are wrong and that they should not --

Justice Byron R. White: (Inaudible)

Mr. Arval A. Morris: Again, we come back to the employment relationship underlying the State's case as the notion that this is a master-servant relationship and this Court need not consider the context within which the rights are exhibited.

And the counsel admits that the claim of academic freedom runs contrary to the usual prerogatives of an -- of an employer but that the claim of academic freedom and freedom of speech being embodied within the First Amendment, limits the State as an employer.

If these were a private school not subject to State action, then we wouldn't see the problem.

But being a public school subject to State action, it appears that the Fourteenth Amendment incorporating the First is a limitation, denying the State's power.

Justice Byron R. White: So the Board of Regents or whoever it is that runs the university cannot -- it says that the provisions for employment for teachers not to -- not to teach -- not to teach their students that the Board of Regents is --

Mr. Arval A. Morris: It's subversive.

Justice Byron R. White: -- it's -- it's running the university law.

Mr. Arval A. Morris: Yes, I would --

Justice Byron R. White: Whether they're making mistake or they are -- that they are not doing their duties.

Mr. Arval A. Morris: I would think that this would control that.

Justice Byron R. White: So that the Board of Regents must employ it's -- continue to employ a teacher even though the teacher refuses to obey the orders of the Regents.

Mr. Arval A. Morris: No, this is not a case where a person can be dismissed for insubordination such as Beilan or Lerner against Casey.

Justice Byron R. White: Well, I don't why -- I mean if it's -- I don't know how you can get insubordination out of it, if the rule as the Board of Regents adopts to which the teacher violates is not constitutional.

Mr. Arval A. Morris: Well, first, it seems to me that this is a case where the initial screen is an attempt to produce a group of people who will be then qualified to teach at the University of Washington.

That initial screen requires that by precept and example, they teach certain doctrines and then that they will not teach by any means to certain other doctrines.

So that we really have two groups, we have the large group from which people may very well be selected but the State, using the condition of freedom of speech, of association, says that on the basis of these conditions, you have to agree that you will do certain things and that you will not teach other things, that you will associate in a certain way and that you will not associate in a certain way, then you will be able to teach at the University of Washington.

Now, it seems that that is our point because it requires that the faculty member have a preordained conception of mind that he has to agree with the -- what might very well be a transit whim of the majority of those Legislatures of the State of Washington as to what is proper and preceptive.

Now --

Justice William J. Brennan: Mr. Morris, getting back to promoting institution, I notice that one of your witnesses at 197 testified, "If I were to sign the oath, I would feel that I had forced -- declared falsely that I hold a number of important beliefs to which, in fact, I do not strike."

For example, although I support the general concept of the law as part of our social system, there are many specific laws which I do not support any sense, this include the McCarran Act, the Smith Act, the stricter immigration and passport laws, the Landrum-Griffin Act and other labor laws and most legal provisions which outlawed gambling, prostitution, abortion, contraception and the use of certain narcotics.

Now, is it your view that if he signed this oath and taught those beliefs to Washington University students, he'd risk prosecution for having falsely stated that he would, by a precept and example, promote the institutions of the United States?

Mr. Arval A. Morris: I believe that he wouldn't -- if he signed this oath, he wouldn't teach those things for fear of a possible prosecution or dismissal.

Justice William J. Brennan: Well, that's only to say then if he did teach them that he would -- that his reluctance of teaching would be because he thought that they did promote, not respect for but disrespect for the institutions of the United States?

Mr. Arval A. Morris: Yes, Your Honor.

Yes.

Chief Justice Earl Warren: Could we put that interpretation on the second part of the -- of the first oath, why wouldn't he be liable in the same way under the first part of it where he says, "I will support the Constitution and laws of the United States of America"?

What's the difference?

Mr. Arval A. Morris: I was very careful in answering Mr. Justice Stewart's question not to say that that second part is not an issue.

The fact, they will swear to support the Constitution of United States.

There are some things --

Chief Justice Earl Warren: And the laws.

Mr. Arval A. Morris: I -- I can't say that Mr. Valentine would swear to support the laws.

Chief Justice Earl Warren: But we're -- I'm not asking for Mr. Valentine.

I'm asking you about -- about your legal theory and principle.

What is the difference between those, in that perspective, between those two parts of that one -- of that one oath because he does say in the first part, "I, the undersigned, do solemnly swear that I will support the constitution and laws of the United States of America"?

Now, you -- you told us in the beginning that you didn't object to that.

Mr. Arval A. Morris: I'm sorry, Your Honor, I said, I only did not object to supporting of the Constitution.

I'd be very specific in restricting myself and not saying that the -- would support the laws.

Now, the only thing --

Chief Justice Earl Warren: Well, are you saying then that you do object to that part of the -- of the first sentence --

Mr. Arval A. Morris: As counsel, I have to represent Mr. Valentine.

Chief Justice Earl Warren: -- "support the constitution and laws of the United States of America"?

Mr. Arval A. Morris: As counsel, I have to represent Mr. Valentine.

He object --

Chief Justice Earl Warren: I beg your pardon.

Mr. Arval A. Morris: As counsel, I must represent Mr. Valentine and he objects.

Chief Justice Earl Warren: Well, I know but --

Mr. Arval A. Morris: The overwhelming bulk of the fact that he did --

Chief Justice Earl Warren: Do you --

Mr. Arval A. Morris: -- not.

Chief Justice Earl Warren: -- support that -- do you support that in -- in legal theory?

Mr. Arval A. Morris: Oh.

Chief Justice Earl Warren: Do you support that as a lawyer here before this Court --

Mr. Arval A. Morris: Yes.

Chief Justice Earl Warren: -- not what your client objects to but --

Mr. Arval A. Morris: I would think that the sit-in demonstrations and the passive resistance movement that we have in our country demonstrate that when need not or could not necessarily be called upon to support the laws of the United States in the usual sense of the term "law".

Justice Hugo L. Black: Do you mean obey the law?

Mr. Arval A. Morris: If it is law, I believe they should obey.

I'm -- and I --

Justice Hugo L. Black: If it's a valid law, do you say that because a man thinks it's bad --

Mr. Arval A. Morris: No.

Justice Hugo L. Black: -- he has a right to try to break it?

Mr. Arval A. Morris: No, Your Honor.

Justice Hugo L. Black: Or did anybody else do it?

Mr. Arval A. Morris: No, we do not take that position.

Justice Byron R. White: What are --

Mr. Arval A. Morris: It's a valid law, he should -- he should follow it.

Justice Byron R. White: (Inaudible)

Mr. Arval A. Morris: Support by precept and example, I take it means support by word --

Justice Byron R. White: Based on law.

Based on law.

Mr. Arval A. Morris: That's not what the oath says, Your Honor, it says by word and example.

Example is to obey the law but here we are coercing speech.

He may very well object to the law.

In fact, you may want to speak against the constitutional validity or against the law by way of repeal but by precept and example, he has to support it in the sense of coercing his word.

Justice Tom C. Clark: You can take the question by the word (Inaudible) supports Constitution and law.

Mr. Arval A. Morris: Well, I know of no objection to that or made by any person.

I should think that be a silly objection.

Chief Justice Earl Warren: What -- now --

Justice Tom C. Clark: What then --

Chief Justice Earl Warren: -- now, we're getting right back to what I asked you.

You said -- I understood you to say to Justice Clark that -- that no one would object to say that's -- support the Constitution and laws of the United States.

I thought you just told me that you didn't agree to that.

Mr. Arval A. Morris: The position I have to maintain here, with respect to Professor Valentine, is that he will take the oath and support the Constitution.

He will not support the laws of the United States if they require him actively to speak in favor of because there are many --

Chief Justice Earl Warren: You -- you are --

Mr. Arval A. Morris: -- that he likes to speak against.

Chief Justice Earl Warren: -- you -- you are supporting legally his position that he does not have to say that he will support the laws as well as the Constitution of the United --

Mr. Arval A. Morris: Yes.

Chief Justice Earl Warren: --States.

Mr. Arval A. Morris: Yes.

However, I want to make it very clear that we are not saying that he has any constitutional right to disobey.

He does not have a constitutional right to disobey.

He must obey the laws of this Republic as I see it and then rely on the orderly processes of Government to reverse them.

But when the statute says by precept, he shall support those laws.

It would seem to me that if he was a member of the legislature, he couldn't speak for reversal.

Pardon me, I --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Arval A. Morris: -- repeal.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Arval A. Morris: Yes, yes, Your Honor, and peaceful speech binds itself in the University campus.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Arval A. Morris: Yes, Your Honor.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Arval A. Morris: That is our argument, Your Honor.

Chief Justice Earl Warren: But you do -- you also argue do you not that -- that if the oath said this and no more, that you would still object to it, "I, the undersigned, do solemnly swear that I will support the constitution and laws of the United States of America."

Mr. Arval A. Morris: Yes, Your Honor, if the word were, "I will obey the -- the constitution and laws of the United States," we would have no objection.

Chief Justice Earl Warren: Well, that isn't the word of -- "support" is the word used.

Mr. Arval A. Morris: Yes, Your Honor.

Justice Hugo L. Black: You're pointing out seemingly that the word "support" is susceptible of a number of meanings.

Mr. Arval A. Morris: It may very well be.

Justice Hugo L. Black: And some of them that -- do you argue that the State can't require you to swear to it?

Mr. Arval A. Morris: Yes, sir.

Justice Hugo L. Black: If one meaning of the word "support" as you say it -- see it, is that it means you would be far and advocate and not recommend the change of the law --

Mr. Arval A. Morris: Yes, Your Honor, the --

Justice Hugo L. Black: -- takes away that freedom and then you say that because you think "support" means that in this sense.

Mr. Arval A. Morris: The District Court passed on the prior restrain argument.

I assume that --

Justice Hugo L. Black: You what?

Mr. Arval A. Morris: The -- the lower court, the District Court passed on the prior restrain argument with respect to this statute.

And I would assume that in the argument made there may here as the same.

Justice Hugo L. Black: Well, the -- does any of your argument, I have listened to it, I don't understand it though, is any of your argument based on the idea that in this country, a man is not required to obey either the Constitution or the laws if he doesn't like them and thinks they are bad?

Mr. Arval A. Morris: No, we would -- that is not our argument in any sense of the term.

In fact, I would argue to the contrary.

Justice Arthur J. Goldberg: Mr. Morris, with reference to Justice Black' question however, you challenge against the word "support" (Inaudible) contrary to Article VI of the Constitution.

The Constitution requires that all Executive and Judicial Officers of the United States and the federal states shall be bound by those affirmations to support this Constitution.

This is a mandatory provision of the Constitution, its binding upon the officers of the State of Washington by virtue --

Mr. Arval A. Morris: Yes, sir.

Justice Arthur J. Goldberg: -- of the Constitution.

Now, the Constitution requires them to enclose upon Executives and Judicial Officer of the United States, certainly (Inaudible).

Mr. Arval A. Morris: I should see no difficulty there but restricted to support of the Constitution of the United States but this reads to the support of the Constitution and laws of the State of Washington and also to the laws of the United States an undivided allegiance to the Government of the United States.

Justice Arthur J. Goldberg: Well, I understand under the -- the other part.

But I was referring now to the concerned about the word "supports" in terms of academic freedom.

It seems to me it's very hard to put to say that constitutional term -- the Constitution imposed in United States off and support the Constitution (Inaudible) as I understand it.

And (Inaudible)

Mr. Arval A. Morris: Yes, sir.

Justice Arthur J. Goldberg: Susceptible to the word "support" of the Constitution and laws.

Wouldn't it be different (Inaudible) a man in the United States (Inaudible)

Mr. Arval A. Morris: If support means obey, then I would see -- and I think your arguments --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Arval A. Morris: I --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Arval A. Morris: We're in a neverland but the term "support" in the United States Constitution I take it would mean that a member of Congress couldn't advocate that amendment would be --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Arval A. Morris: Well, then I would accept the interpretation completely wherein any members of the state university.

Justice Arthur J. Goldberg: (Inaudible) the word "support"?

Mr. Arval A. Morris: Well, basically, I don't believe any professor does with the exception of Professor Valentine and he is the only one that I know of, of all the professors at University of Washington, some --

Justice Byron R. White: (Inaudible)

Mr. Arval A. Morris: Yes, he is -- he's --

Justice Byron R. White: (Inaudible)

Mr. Arval A. Morris: He is before this Court.

Justice Byron R. White: (Inaudible)

Mr. Arval A. Morris: With reference to Professor Valentine, maintained his integrity of his position.

Chief Justice Earl Warren: He's the only one out of these 64 that takes that position?

Mr. Arval A. Morris: That's correct, Your Honor.

He's the only one.

The rest object to the rest of the -- from beginning --

Chief Justice Earl Warren: Beg your pardon.

Mr. Arval A. Morris: -- that I will by precept and example, they all object to the remaining part.

Justice Hugo L. Black: The rest of it.

Mr. Arval A. Morris: The rest of it.

Justice Arthur J. Goldberg: Did you point out further (Inaudible)

Mr. Arval A. Morris: Of --

Justice Arthur J. Goldberg: -- because you mentioned (Inaudible)

Mr. Arval A. Morris: Well, support for reverence for law and order.

As a law professor is sometimes hard to maintain in the sense that you're going to promote a reverence or all or inspirational quality for law and frequently is the -- subjected to the dissecting rationale of the -- the reason.

It seems that this consistent impulse starts.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Arval A. Morris: I would think that the word "reverence" means are inspiring, sort of a -- a religious intonation.

Justice Potter Stewart: Part of the law, I suppose, is the law that permits or changes in repeals and statute, isn't it?

Mr. Arval A. Morris: (Voice Overlap)

Justice Potter Stewart: Is there a reverence for that process?

Mr. Arval A. Morris: I -- I believe --

Justice Potter Stewart: Is there ability of changing, otherwise, statute?

Mr. Arval A. Morris: I would be first to argue, the First Amendment is law but I believe that is an attempt to obviate the broad diversity of dissent that First Amendment protects.

Justice Arthur J. Goldberg: Suppose you mean the word (Inaudible) by reverence of the law an order -- that should be an order in the country?

Mr. Arval A. Morris: In terms of obeying the law, yes, Your Honor, this is fine.

Justice Arthur J. Goldberg: Objecting to that, the professor's object that certain law and order should prevail in a civilized society?

Mr. Arval A. Morris: The professor did not object to that statement for that is not necessarily the construction of the -- these terms.

Justice Arthur J. Goldberg: (Inaudible) reverence to law and order.

Mr. Arval A. Morris: I shouldn't -- I should like to know what a professor of Physics or a professor of Mathematics would have to do in order to comply.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Arval A. Morris: Although, it --

Justice Arthur J. Goldberg: Is there anything with the other sections (Inaudible)

Mr. Arval A. Morris: Oh, well, yes.

I didn't get to the disclaimer oath and I notice that time has passed for rebuttal.

But the subversive person section catches up the assistant to the assistant and this Court pointed out in Sweezy.

It also makes the professor the captive of his student in the sense that it says a subversive person is any professor who teaches by any means, any person to aid in the commission of any act intended to assist in the alteration of Government by revolution, force or violence.

The foreign subversive organization -- organization section is not qualified by the terms "revolution, force or violence" and any student who should listen to a professor teach by any means and then commit an act intended to overthrow, it can basically makes the professor a captive of his student.

Mr. MacDonald.

Chief Justice Earl Warren: Mr. MacDonald.

Argument of Kenneth A. Macdonald

Mr. Kenneth A. Macdonald: Yes, Your Honor.

Honorable Chief Justice and members of this Court, I should like to speak briefly to the religious aspects, which several of you have already inquired about, that is -- is -- either of these oaths, the 1931 oath, which you have been talking about mostly or the 1955 disclaimer oath, in any way invade the free exercise of religion of these plaintiffs or indeed invade their conscience, which I believe is also protected by the -- the First Amendment through the Fourteenth Amendment.

And I suggest, if the Court please, that several cases of this Court point that way, that is first, Barnette, it seems to me which is cast somewhat in the complexion of this case where there was a compulsory oath of allegiance or a compulsory act whereby these children were sought to be patriotic or to be nationalistic and the Court struck this down as a violation of the free exercise of, of course, the religion, the Jehovah's Witness religion, of these children.

It seems to me that this concept has been carried forth recently here, in this Court, in the case of Sherbert against Verner, which we have not cited in our brief, although we did cite Schempp, which I think also carries forth this concept.

And it seems to me that herein, the present context of this case, we have conditioned of employment that the professor will give an undivided allegiance to the United States from oath respect for reverent -- in reverence of law and order, etcetera, that we have talked about earlier.

In addition, under the disclaimer oath, these professors are asked to say that they are not subversive persons or have not knowingly joined a subversive organization or a foreign subversive organization, which we believed, and the professors have stated this on pages 188 and 189 of the record in an agreed statement of fact, on agreed fact, first, that they believe all of the professors, I'm now talking about all of the professors rather than two, to whom I will address myself in a moment, that all of the professors feel that the oaths are a violation of their conscience.

The preceding finding of fact on page 188 relates solely to two professors who are Quakers, one of whom Professor Matchett is tenured, one of whom Professor Orians who is non-tenured.

They have asserted that in an agreed statement -- in an agreed fact that the oath violates their religion specifically, the Quaker religion.

Now, Quakers, as I understand it, don't have an undivided allegiance to temporal power.

These gentlemen have an allegiance if we use that word of that strength or they have a feeling or a devotion or a sympathy for people, for human beings, for human needs.

Justice Potter Stewart: Of course --

Mr. Kenneth A. Macdonald: This --

Justice Potter Stewart: -- wouldn't -- if you get to look at that phrase literally as you do and -- and as your colleague does, nobody could qualify because nobody, I suppose, no -- no rational human being has an undivided allegiance for his -- for his country.

In other words, no matter how loyal a citizen he may be, he also has an allegiance to his parents, to his wife, to his children, to his friends, to his church, to his school, to his clubs.

Mr. Kenneth A. Macdonald: True.

Justice Potter Stewart: No -- no human being could sign that oath if it's to be taken as you literally have construed with it.

Mr. Kenneth A. Macdonald: And I think that that is one of the problems of the oath, if Your Honor please, that no human being can and if this is true, why should the State, as a condition of employment, suggests that human beings do something which is in fact untrue which leads to hypocrisy and particularly when this is based in the framework of teaching young people.

Justice Potter Stewart: I was simply suggesting that the language couldn't rationally be construed the way you construe it.

Mr. Kenneth A. Macdonald: If Your Honor please, I suggest that Barnette, a simple flag salute, which I think most of us would agree with accepting for the religious overtones that people would be able to salute the flag in that case.

These youngsters and their parents stated that it was against their religion that they not have a graven image.

Now, this case as in Barnette, if these gentlemen assert that they cannot sign because of reasons of conscience, their assertions of First Amendment freedoms is not running into or colliding with the assertions of anybody else.

Everybody else, if they wish, can take this oath.

The only persons who would not be taking it would be as in Barnette, those people who felt that it was contrary to their religion.

Now, secondly, I think that the extension, if you -- if I may so call it, of the free exercise in Sherbert takes up this case, that is if the Seventh Day Adventist in North or South Carolina, I -- feels that her free exercise of religion has in anyway been prohibited by reason of her losing her employment and not under state statute being eligible for unemployment compensation benefits, then I suggest that the condition imposed upon these professors is precisely the same type of condition and is indeed a prohibition of the free exercise.

Now, question, of course, is what is religion?

Does religion run over into conscience and is conscience protected?

I suggest that both under Barnette, under Speiser against Randall, certainly under Cantwell against Connecticut that a person's free conscience is protected by the First Amendment as absorbed by the Fourteenth Amendment and applicable to the States.

And I suggest that if this is, if it is indeed, a violation or an intrusion upon the rights of these professors, then I think that the mandate of the First Amendment should takeover even though this Court might think that this is but a limited invasion.

The Court has spoken.

Justice Madison has spoken in the past of the dangers of what is now a limited invasion and later maybe a torrent.

Now, I feel that the literal interpretation of the First Amendment, and I regarded as a charter of our Government, is applicable to this case that we are faced with state action and that the rights of conscience of all of the professors as opposed to the -- were limited, I may call them, religious rights of two of the professors have, in fact, been affected as by what we call an unconstitutional condition of employment.

Now, we are not asking, I am not asking that the oaths should be declared unconstitutional as to all persons, only as to those persons who seek to raise the issue of conscience.

I mentioned to Justice -- Mr. Justice Stewart earlier on the question of what difference does it make and I think that it makes some difference in the environment in which we're acting again --

Justice William J. Brennan: (Inaudible)

Mr. Kenneth A. Macdonald: I am arguing --

Justice William J. Brennan: -- who assert rights of conscience.(Voice Overlap) --

Mr. Kenneth A. Macdonald: Yes, I am arguing -- I am arguing that.

And I am arguing, I believe something further which would be implicit and it is this that there is no hearing that we can see under the statute.

This has come up before this Court, has been sent back for a determination as to whether or not there is a hearing under the disclaimer oath and the Supreme Court of the State of Washington said, "No."

When your remand went down, it asks the Court there to act -- to assert if there was a hearing at which these professors could explain or defend.

The answer was no.

Although the Court said, as Mr. Fuller will advise you that there was a hearing for tenured professors under the University of Washington tenure program.

However, we have asserted in our brief what -- that this is -- in essence a sham hearing because the Board of Regents of the University of Washington acting under their delegated authorities, as pointed out by Mr. Justice White, have said, if the answer is that such a hearing that I will not sign then that the State, through its Regents, will follow the law and will discharge these professors.

Now, I would think, if Your Honor please, that even --

Justice William J. Brennan: You say, there had been hearings or --

Mr. Kenneth A. Macdonald: No.

Justice William J. Brennan: No.

Mr. Kenneth A. Macdonald: There are -- that --

Justice William J. Brennan: It is a ruling that tenure --

Mr. Kenneth A. Macdonald: Yes.

Justice William J. Brennan: -- professors aren't entitled to this.

Mr. Kenneth A. Macdonald: Is that tenured professors are entitled to a hearing consistent, however, with the law of the State of Washington and if the answer is that the professor has not signed the oath, then he shall be discharged.

Justice William J. Brennan: But in fact, nothing like that has just happened?

Mr. Kenneth A. Macdonald: In fact, no hearing has been held at this time, as of -- of -- at this time.

Now, I feel, moreover, if Your Honor please, that if such a hearing, even if it were to be held, even if it were allowable under state law, an interpretation has been to the contrary, I think that under the free exercise cases and even under the establishment cases, that it would be contrary to the First Amendment to have these professors go before that hearing and explain their reason or what is their conscience based upon and what is their religion based upon, which I think is an added defect of the present situation.

I should like to reserve the balance of our time, if the Court please, for Mr. Morris on rebuttal.

Chief Justice Earl Warren: Mr. Fuller.

Argument of Herbert H. Fuller

Mr. Herbert H. Fuller: Mr. Chief Justice, members of the Court, distinguished counsel.

It's true that we must safeguard our constitutionally guaranteed liberties.

It is also true that we must protect ourselves against the dangers of subversion.

Now, having said this, we've said very little toward assisting the Court in determining case before it because what is needed is not generalities, however, true these generalities maybe.

But a detailed analysis of the statutes, a consideration of the context out of which they overruled and an understanding of the statutes and how they've been applied and interpreted by the courts in our State.

Now, the course of my argument, I would like to deal first with the Subversive Activities Act, passed in 1951 as amended in 1955 and devote the latter part of the argument to the 1931 oath requirement.

Well, I don't purport to go into detail in the 1951 Act.

I would like to very quickly present a bird's eye view of what it requires.

As the Court knows, the Washington Legislature did not simply shoot an arrow into the blue when it passed the Subversive Activities Act of 1951.

Prior to this Act, the Governor of the State had requested that it be passed.

Prior to the Governor's request, extensive hearings had been held by a state investigating committee.

Now, when the Act was finally passed, it was patterned in large part after the so-called "Ober Act" in the State of Maryland, consisted of some 22 sections.

The first section is, perhaps, the most important in the entire act, it's the definitional section.

And in a few minutes, because if the importance of this section, I would like to drawback to it.

The next three sections relate to criminal sanctions and they are not before the Court.

The following five sections relate to the appointment of a special assistant attorney general.

Now, these are not before the Court because four out the five have been vetoed by the Governor.

The one remaining of these five sections merely requires that the Attorney General report biannually to the legislature on subversive affairs.

This brings us then to Section 11 which is one of the key sections as far as the state loyalty program is concerned.

I'm not going to attempt to quote directly from the statutes but only to paraphrase them.

Section 11 lays down the base rule that no subversive person shall be eligible for public employment in the State of Washington.

Section 12 establishes an administrative program which places a certain amount of power in the hands of agency officials to determine whether those and their employee are subversive persons within the meaning of the 1951 Act, as amended -- later as amended.

Now, Section 12 is one of two sections, which was amended by the 1955 Act.

Section 13 provides that this requirement as to those who are employed, as opposed to applicants, shall not be applicable to non-sensitive areas of state government.

Now, at this point, I should advise the Court that in the entire State of Washington, I know of not one area which has been declared non-sensitive.

I think we should be frank about that.

We say that this is evidence of the very poor level of enforcement which the Act has received.

Section 14 requires a, what we will call, a one-shoot affidavit requirement, a disclaimer as of -- for all employees who are employed as of June 1, 1951.

In Section 15, sets up a rather elaborate hearing procedure for those who have been accused of being subversive persons under the Act.

Again, I should be frank with the Court and tell the Court that I know of not one instance on Section 15 has ever been employed.

The next section requires an affidavit from a candidate for election.

The last section which I would like to mention is Section 19 of the Act.

This is a key section because it is a mandate.

As we see it, it is a mandate by the legislature that the Act be strictly construed with an idea of not infringing upon a person's constitutionally guaranteed liberties.

This Section is very short.

I'd like to read it.

Unknown Speaker: (Inaudible)

Mr. Herbert H. Fuller: Section 19, page 82, Your Honor, in our motion to dismiss or any alternative to affirm.

Unknown Speaker: Page what?

Mr. Herbert H. Fuller: Page 82, Your Honor, Section 19, "Nothing in this Act shall be construed to authorize, require or establish any military or civilian censorship or in anyway to limit or infringe upon freedom of the press or freedom of speech or assembly within the meaning, in the manner as guaranteed by the Constitution of United States or of the State of Washington and no regulation shall be promulgated hereunder having that effect."

As it --

Justice John M. Harlan: (Inaudible)

Mr. Herbert H. Fuller: By this litigation, do you refer, Your Honor, to Nostrand against Little, Nostrand against Balmer?

Your Honor, it has never been before our Supreme Courtm, except for that litigation to which you've refer, which is really all one series of litigation.

It was a declaratory judgment action.

Again, I can say, being frank with the Court, that in the entire State of Washington, I do not know of one instance when an individual has refused to sign the oath.

There may well be instances, I would be surprised if there weren't, but I know of no instance.

Justice Byron R. White: None of these -- none of these people have refused?

Mr. Herbert H. Fuller: No, Your Honor, not a single one and the reason is this.

The University of Washington has been protected from the operation of the 1955 Amendatory Act which requires the disclaimer requirement almost from the time that the Act came into force.

Before the oaths could actually be distributed and -- and -- in other words, before a person had a chance to make an operative refusal, there was an injunction and there's been an injunction -- prohibiting the University from demanding the oath.

Now, there's been an injunction in effect from that time until the present day or --

Justice William O. Douglas: (Voice Overlap) --

Mr. Herbert H. Fuller: -- prohibiting the University of Washington from demanding the oath required by the 1955 Act.

Justice William O. Douglas: By the three-judge court?

Mr. Herbert H. Fuller: There's been an injunction by the -- first by the -- by the State Supreme Court.

Now, after the case was sent here, remanded back, again appealed to this Court and this Court dismissed for one of the substantial federal question, there was no injunction for a short time.

Now, during that short time, the mechanics were started to demand the oath of the --of the University professors and the other employees but it was such that the they couldn't demand the oath until October, a number of them were away and the mechanics were such that it would've required four or five months to demand that the oath be signed.

So what the University said in effect, and here I'm paraphrasing it, they said, "You shall sign the oath by October 1st, demand is hereby made that you sign the oath by October 1st."

And I believe it was June, possibly July, but I believe it was June, injunction was issued by the three-judge court stating the hand of the University from demanding that they sign the oath.

It's true there are many statements of intentions where some of the appellants, in this case, state that they certainly have no intention of signing the oath but there's nothing to prevent them from changing their mind.

There has been no refusal on which a hearing could be predicated.

Justice John M. Harlan: What question do you raise in the second case, is it Balmer which we dismissed this -- the one of the substantial federal question that is not in here?

Mr. Herbert H. Fuller: Your Honor, that was Nostrand against Little.

The first case was Nostrand against Balmer.

Mr. Balmer passed away and the title of the case was changed.

Justice John M. Harlan: (Inaudible)

Mr. Herbert H. Fuller: The second time that it came before this Court, it was called Nostrand against Little.

Justice John M. Harlan: (Voice Overlap) --

Mr. Herbert H. Fuller: At that time a number of issues were raised in the -- in the brief of the appellants in that case.

There were First Amendment arguments, there were Fourteenth Amendment due process arguments, bill of attainder arguments and I'm not sure about some of the other arguments.

But they were -- I think it's fair to say, substantially, the same as the arguments in this case.

There maybe some others which is religious aspect, but I think it's fair to say that they were substantially the same as the arguments in this case.

I said a moment ago that the University of Washington has had a judicial umbrella in the form of an injunction virtually from the time that the 1955 Act has been passed.

The result of this is that the University of Washington provides a test tube example on how a state agency might operate under the 1951 Act without the 1955 Act.

We submit that the level of enforcement has been sufficiently low.

That checks as to an individual's loyalty have been sufficiently desultory to justify the legislature.

In passing the 1955 Act, I'd like to quote a couple of examples to that effect.

Turning to the record, I would like to quote part of a statement by Professor Reed who is one of the appellants in this case, on page 200.

Now, Professor Reed, the Court will recall was a visiting professor from Australia, who decided to burn his bridges behind him and teach at the University of Washington.

Was he informed of the oath requirement prior to his coming to the University of Washington?

On page 200, before the bottom of the page he says, "When I accepted this visiting appointment, I was not informed that an oath of any nature might be required to me."

Less -- thus, would seem to be a mistake on page 201 about three-quarters of the way down the page, he says, "I was at no time informed that an oath of any nature might be required at me as a condition of my employment by the University."

I now direct the Court's attention to a statement by Professor Birnbaum during the course of his deposition.

The Court will recall that Professor Birnbaum was a member of the personnel committee of the Mathematics Department.

Now, a duty of the personnel committee is to -- is to recruit new members for that particular department.

What sort of checks do we have as far as loyalty or membership in a subversive organization?

Well, on page 62 of the record, in response to counsel -- question from counsel as to the activities of the committee and more particularly Professor Birnbaum's rule, counsel for Professor Birnbaum asked the following question, question, almost to the bottom of that page, "Do you have any knowledge of any instance in which there has been an exploration of a candidate's loyalty to the State of Washington?

Answer: "No."

Question: "Do you have any knowledge of any instance in which there has been an exploration of a candidate's loyalty to the United States of America?"

Answer: "I don't know of any preliminary exploration of that kind."

Question: "Were you directed by anyone at the University of Washington to apply such standard?"

Answer: "A matter of clarification, before the loyalty oath issue or after."

Question: "Well, have you been directed by anyone at the University of Washington at anytime to apply any such standard?"

Answer: "I've not been expressly asked, no."

Now certainly --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Herbert H. Fuller: That is correct, Your Honor.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Herbert H. Fuller: Your Honor, I agree that a -- an alien cannot agree to, by precept and example, promote undivided allegiance to the United States of America by flag, essentially to mean United States of America.

The question is not before us whether if any university or state was so foolish as to not allow aliens to be in its faculty.

The -- we say that there has been no time at which an alien has been excluded from employment because he's been required to take this oath.

Now --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Herbert H. Fuller: This is one of those old interpretations and nobody can find the source of it but the oath has been applied in such a way and interpreted it in such a way as long as we know, perhaps, from the time it was first passed so that it would not apply to aliens.

Now, it is true that a similar oath is requested of aliens.

But in the similar oath as the record will show, I'm sorry, I can't point to the exact page, but there's an example by Professor Aldenderfer in which Professor Aldenderfer in a memo to the people in this department or that one particular alien said, "I will support allegiance -- undivided allegiance to the United States insofar as this is consistent with my citizenship blank country," or something to that effect.

At no time have we ever asked an alien, to my knowledge, to sign an oath that he will provide undivided loyalty to the United States.

It is not done now.

We do not know that it will be done in the future."

Justice William J. Brennan: Mr. Fuller, may I ask, I was wondering if I correctly sensed this, some of the things that you've been saying, an argument that none of this really is wide yet far consideration to the constitutional questions anyway.

Are you suggesting that?

Mr. Herbert H. Fuller: Yes, Your Honor, I am.

I'm not saying that the Court is without power or authority to pass on the constitutional questions.

I do say that it -- it would be much better if we have this factual bedrock --

Justice William J. Brennan: You mean by -- much --

Mr. Herbert H. Fuller: -- with actual hearing.

Justice William J. Brennan: -- much better if we waited an actual demand and the refusal by someone on some basis either at the hearing or otherwise and -- and that we reach this after your courts submits to them an application of the statute?

Mr. Herbert H. Fuller: That is correct, Your Honor.

If there were an actual hearing, if they were an actual, there were actual interpretations of the particular constitutional provisions set forth in the hearing, there was an actual factual bedrock of refusal by somebody, I would say that the posture for decision by this Court would be much better.

Unknown Speaker: (Inaudible)

Mr. Herbert H. Fuller: I'm not sure but I -- as recall in numbers three or four, counsel may correct me on this, but a very small number that there are a number employed by the University of Washington and this is not --

Justice William O. Douglas: (Inaudible)

Mr. Herbert H. Fuller: -- in the record but by other universities of the State as well.

Justice William O. Douglas: Well, as far as those aliens though, who are appellants here, that we are in bedrock.

Mr. Herbert H. Fuller: I do not think we are, Your Honor, because there is no demand that they take the oath.

There has never been a demand that they take the -- my oath, I'm referring to the -- to the 1931 of oaths.

Justice William O. Douglas: You're really saying then that until the University actually picks out Professor Valentine or professor somebody else and says, "Here, if you're going to teach here, sign this," until that happens, there's no reason for us to reach any kind of decision.

Mr. Herbert H. Fuller: That's correct, Your Honor.

I think the whole difficulty --

Justice William O. Douglas: That's -- that's part of an argument against Federal Declaratory Judgment Act.

That's --

Mr. Herbert H. Fuller: That's true.

I think that the -- there's a lot to be said for the federal declaratory judgment action.

But at the same time, I think, one of the difficulties where this entire litigation is a fact that because of very declaratory nature of the case as the decisions of the Washington States Supreme Court indicate is just about impossible to tell the difference between dicta and holding of the case because it doesn't have that factual bedrock.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Herbert H. Fuller: Yes, that's correct.

We do have an oath form before us.

Now, I grant you that this Court does have the -- the power and the authority to find something void on its phase.

We submit, however, that the state high court should be permitted in an actual case to pass upon the definitional sections when there's an actual case before it.

And the same thing is true with the 1931 oath, as I'll try to explain in a few minutes.

We say that a state high court should be able to pass on those definitional sections.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Herbert H. Fuller: What I'm saying, Your Honor, is that there should be an actual refusal by some individual before this matter is decided by this Court.

Justice Arthur J. Goldberg: Let me ask you this.

This oath as I understand it, correct me if I'm wrong (Inaudible)

Mr. Herbert H. Fuller: You're referring to the 1955 oath.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Herbert H. Fuller: With regard to the 1931 oath, a form is prescribed by the statute.

With regard to the 1955 oath, no form is prescribed by the statute.

Justice Arthur J. Goldberg: Now, therefore, referring to page 15 of the record, (Inaudible) the first paragraph, is that the 1931 oath (Inaudible)?

Mr. Herbert H. Fuller: Page 15 of the record, Your Honor?

Justice Arthur J. Goldberg: Yes.

(Inaudible) that says the text was as follows, is that --

Mr. Herbert H. Fuller: 15, page 15.

Justice Arthur J. Goldberg: 15

Chief Justice Earl Warren: Of the record -- of the record.

Justice Arthur J. Goldberg: Is that the record?

Mr. Herbert H. Fuller: Yes.

Justice Arthur J. Goldberg: First paragraph is the 1931 oath?

Mr. Herbert H. Fuller: Yes, that is correct.

However, the -- the pretrial order must be read as a whole and certain portions of the pretrial order explain that this oath is not, as of aliens, in this exact form.

Justice Arthur J. Goldberg: I understand.

But I am not asking it here.

Mr. Herbert H. Fuller: Yes, I'd be happy to, Your Honor, and I had reserved that for latter part of my argument but I would like to come to it or I rather come to it right now, Your Honor, as long as Your Honor has mentioned it.

Let me say first of all that I'm the first to admit that these words are susceptible of different interpretations.

I think that the word "institutions" is particularly susceptible with the number of -- of interpretations.

We feel -- let me start with the word "flag" we feel that word "flag" really means the United States of America.

After all, the flag is nothing but a cloth -- piece of cloth with the insignia of country on it.

As far as institutions --

Justice Arthur J. Goldberg: I think flag is a definite term.

Mr. Herbert H. Fuller: Flag is -- is a definite term.

It's one way the legislature had of referring to the United States of America and to the State of Washington.

Far as institution is concern, we feel that it refers to that which has been instituted, in other words, the foundation, in other words, our basic constitutional republican form of Government.

That is our interpretation of the word "institutions".

We do not think that it includes everything that has been mentioned by counsel and by some members of the Court.

That is our interpretation of the word "institution".

Justice Tom C. Clark: (Inaudible)

Mr. Herbert H. Fuller: Our interpretation has been made known to those assistants who work for the University.I don't know that there is any written interpretation.

There may well have been oral opinions from time-to-time.

Justice Tom C. Clark: Do you make opinion (Inaudible)

Mr. Herbert H. Fuller: No, Your -- no, Your Honor.

That is something that has existed for years and years.

Now, I have searched the files and I found no communication from the Attorney General's Office.

I'm not saying that there has never been any.

After all, this was passed in 1931.

I'm only saying that I know of none.

All we can say is as long as we know or as far as we know, there has never been a request that an alien signed the oath and the statutory form required by the statute.

Justice Tom C. Clark: (Inaudible)

Mr. Herbert H. Fuller: I'm the Deputy Attorney General for the Seattle area.

Now, part of my responsibility in the Seattle area is with the University of Washington.

However, other attorneys are assigned more particularly to the university to --

Justice Tom C. Clark: I meant the attorney --

Mr. Herbert H. Fuller: -- represent them.

Justice Tom C. Clark: -- Attorney General's Office.

Mr. Herbert H. Fuller: Yes, Your Honor.

The Attorney General does provide legal assistance to the University of Washington and to the other state universities.

Justice Tom C. Clark: Universities pass the opinion of the -- your office (Inaudible)

Mr. Herbert H. Fuller: We would advice them as I've just stated and part of our advice will the based upon the long practice.

We think that our Court would give considerable weight to the fact that for a third of a century as far as we know it's been done this way.

Now, the point is that whether it were right or wrong, it's not the important thing.

The important thing is that the Washington State Supreme Court is not passed upon it.

Now, it's done this way, our office would advice that it be done this way and we know of -- there is no indication that it will be done in another way in the future.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Herbert H. Fuller: Yes.

I wasn't really reading anything.

Justice Arthur J. Goldberg: But --

Mr. Herbert H. Fuller: I was just saying what my views aren't are and my views are that the institution means our basic republican form of Government.

Now, I know that this is rubber tied things susceptible to a certain amount of stretch and there could be a lot of questions, does that include the secret ballot?

I would answer yes.

The next question -- the next statement could be, "Well, we didn't have a secret form of ballot when America became a country."

I know that there are number of questions that can be asked regarding institutions.

But I say that is our -- its a little like due process.

It's our basic republican form of Government.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Herbert H. Fuller: Now, of course the term has a particular connotation that's present.

And it's a little difficult for me just, all at once, to give a definition of the term "establishment" but I don't -- I wouldn't pick that pick that definition.

Justice Arthur J. Goldberg: I think it's the leading one.

Mr. Herbert H. Fuller: Well, it maybe the leading one but I submit there are number of other definitions of the word "institutions".

And I think that's one of the difficulties here as we have so many different definitions and the -- the Court that should --

Justice Hugo L. Black: Maybe that's the difficulty with your Act?

Mr. Herbert H. Fuller: I beg your pardon.

Justice Hugo L. Black: Maybe that's the difficulty with your Act?

Mr. Herbert H. Fuller: That might well be, Your Honor.

But we submit that if that is the difficulty, at least, our state high court should have the first opportunity to apply a statutory of laws and perhaps make at least definite.

Justice William J. Brennan: Telling this, I -- I think I heard Mr. Morris said at the outset of his argument that you differed with him whether -- if one made a mistake just to -- just business of institution, he might be prosecuted criminally if he signed this on the -- and then will prosecute -- will be prosecuted for.

Justice Hugo L. Black: I do very definitely differ with him.

We have no illusions about the 1931 oath.

That's not backed up by the sanction of perjury.

The statute he just cited there had used the word "oath" but it doesn't use the word "promissory".

Justice William J. Brennan: Although, what's the meaning of -- I don't know.

Is this a -- the text is as followed that says, "Teaching faculty oath" and that -- what -- if this is it as we reproduced at page 15 encloses with, I understand that this statement in oath are made subject to the penalties of perjury.

Mr. Herbert H. Fuller: Now, the problem is that mechanical difficulty of having the two oaths combined.

And then mechanically, the University has combined the 1931 oath with the 1955 oath.

Justice William J. Brennan: Well, if I didn't know anything about 1931 and 1955 and I were a faculty member, would I read this reasonably as meaning of that last sentence but if I were wrong about something I said as to the first paragraph, I might be prosecuted for perjury?

Mr. Herbert H. Fuller: I think it's got to be conceded that mechanically the way the oaths are mechanically put together, that a person may get the wrong idea and think that the first part would have a sanction of perjury.

We submit that the first part does not have a sanction of perjury.

Chief Justice Earl Warren: Why does --

Justice Byron R. White: At least he got the sanctions of being fired though I suppose if they (Voice Overlap) --

Chief Justice Earl Warren: Why doesn't it have the sanction of perjury?

Mr. Herbert H. Fuller: Because, Your Honor, the first part of the oath, I'm talking strictly about the 1931 oath, is promissory in form.

And traditionally, there's no case in our jurisdiction, Your Honor, I admit, but traditionally, promissory oaths absent some particular statutory mandate have not been held to be the basis for the prosecution for perjury, at least in my --

Justice Byron R. White: (Inaudible) couldn't be fired, don't you?

Mr. Herbert H. Fuller: I think that is correct.

I'm not saying that there is -- there is no sanction.

I am saying that there is no --

Justice Byron R. White: Yes.

Mr. Herbert H. Fuller: -- criminal sanction.

Now --

Justice William J. Brennan: Well, that -- that looks to me or I must suppose the vagueness, the very form of the oath itself.

Mr. Herbert H. Fuller: I appreciate the fact that there are number of objections with regard to vagueness in the oaths.

Our point is that the Washington High Court should have the opportunity to pass upon this vagueness point.

Four years ago, almost to the day, I came before this Court when I was representing the State of Washington in an action, Nostrand against Balmer, it recalled Nostrand against Savelle, stated to this Court that the two professors, Professors Nostrand and Professor Savelle, would very probably be entitled to a hearing which they could explain or defend their refusal to take the oaths required by the 1955 Act.

Now, four years later, I come before this Court and I say that as this case was remanded to the State of Washington for determination of that very question and when the case was argued before the Washington Court, the office of Attorney General argued that the statutes of the State of Washington would seem to allow such a hearing counsel for Professors Nostrand and Savelle argued that the statutes would allow and no such hearing.

Now, the Washington Court held that the professors would be entitled to a hearing.

We, very strenuously, disagree that it will be a sham hearing.

We say at the very least try us, let us see.

We think the Supreme Court of the State of Washington would not sanction a sham hearing.

Justice John M. Harlan: What -- when you say a sham hearing, supposing that there is a hearing and the professor goes before the present committee and he says, "I don't want to sign this oath because I don't believe in oaths.

That's my reason for not signing it."

What would happen?

Mr. Herbert H. Fuller: I can't guess the disposition of the particular committee.

I don't know what the hearing --

Justice John M. Harlan: But what -- what --

Mr. Herbert H. Fuller: -- officer would decide on all the evidence.

Justice John M. Harlan: -- what -- what authorities would I have been to these proceedings, what the hearing really means here?

Mr. Herbert H. Fuller: The precise question --

Justice John M. Harlan: If that was all there was, wouldn't -- wouldn't the University were required to discharge him automatically under the terms of the statute?

Mr. Herbert H. Fuller: I don't think that -- that university in every case is required to discharge an individual if he refuses to sign the oath.

I can't answer your question because of the particular factual basis of it but let me take another example.

Let me take an example of whether an individual belong to the Communist Party, say several years ago.

And the individual attempted to resign from the Communist Party but a number of years had gone by, he no longer had contact with those individuals that he had once known, he did write a letter to somebody and yet he wasn't sure whether he could sign the oath or not.

We say that such an individual came forward, demanded a hearing and at this hearing, stated that he had written a letter to the last person he knew, he did knew whether he was still mailed back his membership card.

He didn't know whether he was still carried on the membership rules.

We say that if such a person would kept for employment that it might well be affirmed by the Washington State Supreme Court that ever came before it.

We say, in other words, that would not be a sham hearing.

It would be a hearing with a very real meaning.

Now, there are two other categories.

Not only those of academic tenure but those with civil service tenure and those who, for one reason or another, have no tenure at all.

The real significance of the Court's decision in Nostrand against Little, the real significance was the fact that the Washington Court held that they could not interpret the 1955 Act without reference to any other act.

They took the 1955 Act on the hand and interpret it along side of the Act which gave the Board of Regent certain powers.

They read them together and came out with the hearing requirement.

We say if the Court did this with that particular statute, they might well compare it with another statute such as the civil service statute passed in 1951 or the Administrative Procedures Act passed in 1959.

They compared it with one statute.

They might well compare it with another.

Justice William J. Brennan: Speaking it now with the non-signee, they might say that they were also entitled with a hearing?

Mr. Herbert H. Fuller: Let me take them one at a time, Your Honor.

Let me take first of all, those who are not teachers at all, those who are non-academic personnel and who would be covered by, let us assume, this classified service of the State Civil Service Act, Section 5 --

Justice William J. Brennan: Because they don't take -- those folks don't take the first paragraph or do they?(Voice Overlap) --

Mr. Herbert H. Fuller: That is correct.

Justice William J. Brennan: Yes.

Mr. Herbert H. Fuller: That is correct.

They would only -- the non-academic personnel would only take the 1955 or if not, the 1951 oath.

The Section 5 of the State Civil Service Act authorize the various institutions of higher learning to set up the personnel committee.

This was done at the University of Washington.

The personnel committee met and it passed rule -- Rule 14, which actually adapted rules and procedure which are set forth in the Civil Service Act, so this would prepare the hearing for those.

Now, the key question is, what about those individuals that have neither civil service tenure nor academic tenure, would they be afforded a hearing?

Now, the going gets rough.

We say that they would be by virtue of the State Administrative Procedures Act passed in 1959.

State Administrative Procedures Act, in Section 9, provides that in any contested case, all parties shall be afforded an opportunity for hearing after reasonable notice.

Now, what did they mean by contested case?

Well, Section 1 defines a contested case as a proceeding before an agency in which the legal rights, duties or privileges of specific parties are required by law or constitutional right to be determined after an agency hearing.

Would there be a constitutional right to a hearing?

We don't know.

We say it would be better to err on the side of allowing too much due process rather than allowing too little due process.

We propose to grant them a hearing and I don't know who can raise the question of a hearing would be improper.

I'd like to add that the office of Attorney General is very much aware of the serious nature to an individual who has been discharged on security reasons.

I don't know that this has ever been done but we recognized that it is serious.

For that reason, along with the mandate contained in Section 19 of the Act, we propose to construe the definitional sections very strictly.

We propose whenever there is a doubt or a question to allow a person a hearing and a fair hearing.

We cannot meet the objections to those who feel that the loyalty act such as this is unwise.

We can meet the objections of those who claim that there is a procedural deprivation.

We can meet the objections of those who claim that we are interpreting the Act in too broader fashion.

Next, I would like to deal with those definitional sections very briefly.

But before I do, I've already discussed the 1951 Act.

I would like to remind the Court that in 1953, the Washington Legislature amended the definition of subversive person to make the element of scienter even more explicit.

In 1955, we say because it may be had been dissatisfied with the level of enforcement, the Washington Legislature amended the Act in two places and added two new sections.

Section 12, if the Court will recall, set up an administrative program.

As the Court knows, the first section of the 1955 Act added to disclaimer requirement that a person must disclaim his present membership.

I emphasized the word "present membership" in the Communist Party or other subversive organization.

The second section brought us into conformity with the non-sensitive provision which was Section 13 of the original act.

Now, the third section was a very harsh section.

It required that those organizations which were on the United States Attorney General's list be deemed subversive organizations within the meaning of the Washington Act.

I hasten to add that this Section was declared unconstitutional by the Washington States Supreme Court.

The last section simply states that Communist Party is declared to be a subversive organization and membership is a subversive activity thereunder.

As far as the oath form itself is concerned, I've already stated in response to a question that the oath, so far as the 1955 portion of the oath is concerned, is made by the Attorney General's Office.

It is, by and large, followed by state agencies even though there is no absolute requirement that they do so.

A city or a county may choose to follow the -- an oath of their own choosing.

We have supplied them with an oath and I can say that by and large, they have adapted our oath form.

Now, an examination of the oath itself shows that not all of the oaths comes from the 1955 Act because the mandatory portion of the 1955 Act only requires that a person state whether he is a member of a Communist Party or other subversive organization while, in fact, more is asked in the oath.

A person is asked, for example, whether he is a subversive person.

This stems from the 1951 Act.

I'll also hasten to add that this is a request for information.

This is not a -- a particular requirement of future behavior.

The State does have a right to request this information.

It is true that under Section 12 of the 1951 Act, the State may, in the future, request more information.

Now, I come to the key part of the 1951 Act, which are the definitional sections.

I think the first thing that is apparent when we consider the definitional sections is the fact that each definition must perform a double duty.

On the one hand, it defines a subversive organization, membership of which maybe a crime.

And on the other hand, it defines a subversive organization membership in which it cause one to lose his public employment.

Now, of course, it's actually a mandate that criminal statutes are strictly construed, although the criminal portions of the statutes are not before the Court.

We say that these strict constructions, since there's only one definition of subversive organization, since there's only one definition of subversive person, since there's only one definition of foreign subversive organization, we say that this strict criminal construction benefits those who come under the loyalty portion of the Act.

The strict construction is, of course, buttress by Section 19 which I read to the Court earlier, the mandate by the legislature that the Act be strictly construed.

What is a subversive organization under the Act?

We did not claim if these terms are self-defining, since they are defined in the Act.

This is one of the difficult areas of this case but I think that it is better to discuss it.

I will paraphrase the definition of "subversive organization" rather than read the expressed statutory definition.

Subversive organization is any organization, purpose of which is to, to do what?

To engage in a type of activities or to advocate, abet or advise a type of activities.

What type of activities?

Activities intended to assist in the overthrow, distraction or alteration.

Alteration of what?

The constitutional form of Government of the United States, of the State of Washington or of any political subdivision of either of them.

Now, the definition of subversive person is a little more involved.

Who's a subversive person?

According to the statute, any person who aids in the commission or advocates, abets, advises or teaches by any means, any person to aid in the commission.

Commission of what?

Any act intended to assist in the overthrow, distraction or alteration.

Alteration of what?

Answer the constitutional form of Government of the United States or of the State of Washington or any political subdivision or either of them.

How?

By revolution, force or violence.

In addition, according to our statute, one is defined for purposes of the Act as a subversive person who with knowledge that the organization is an organization as defined on the section relating to foreign subversive organization, as relating to a subversive organization becomes or remains a member of such an organization.

Perhaps the most controversial is the definition of "foreign subversive organization".

This is quite similar to subversive organization except that it's further defined as an organization directed, dominated or controlled directly or indirectly by a foreign government.

Further, although the Section does speak in terms of overthrow, distraction or alteration, we've got to face the fact that it does not have the qualifying words by revolution, force or violence.

Now, we interpret this to, nevertheless, mean by revolution, force or violence.

And by revolution, we're not talking about a peaceful revolution such as the industrial revolution.

We understand revolution to be a popular armed insurrection in the sense in which it's popularly used.

Where do we base this on?

We based it on the fact that, on the one hand, it is a foreign organization.

In other words, being a foreign organization, it maybe less likely to rely upon normal democratic processes.

It may be more likely to rely upon an army which maybe the fist or the spirit of the foreign organization.

When the foreign niche of the organization and the fact that it may be relying upon a foreign army is combined with the words "overthrow, distraction or alteration", we feel that it is clear enough that this means by revolution, force or violence.

Now, this Court has often held that if will uphold the statute if it can be given a constitutional construction.

This portion was given a constitutional construction, we submit, by the State of Maryland with the Ober Act, which as far as the definitional provisions are concerned, are identical to those in this case.

In the case of Shub against Simpson, Maryland court held that the purpose of the law referring to the Ober Act, was to prevent infiltration in our State, referring to the State of Maryland, county or municipal government by persons who are engaged in one way or another, in the attempt to overthrow the Government by force or violence.

Now, when the Gerende case came before this Court, Attorney General Hammond, I believe it was, gave the Act such an interpretation and seem to require change by violent means.

We say if it was done in the State of Maryland, it could be done on the State of Washington.

Again, our interpretation is buttressed by Section 19 of the Act asking that it be given a constitutional interpretation.

Now, my final point is this, with regard to the 1931 Act, it maybe true that as the (Inaudible) said, most questions eventually come before this Court.

This is also applicable to the 1955 Act.

But that does not mean that legal questions are involved, we submit that the real questions involved are not so much constitutional questions as there are questions of wisdom.

And we say that the solution for the appellants is with the Washington State Legislature, just as a solution for those who've just like Section 9 (h) of the Taft-Hartley Act, was with the Congress of the United States.

We say that the Legislature in the State of Washington is the proper area in which the appellants should seek their remedy.

Thank you.

Chief Justice Earl Warren: Mr. -- who's going to pose?

Rebuttal of Arval A. Morris

Mr. Arval A. Morris: Mr. Morris.

Chief Justice Earl Warren: Mr. Morris.

Mr. Arval A. Morris: Yes, sir.

Chief Justice Earl Warren: Very well.

Mr. Arval A. Morris: Thank you, Your Honor.

The State has argued several points.

I should like to address myself to one or two.

The first, as the State correctly argues, the subversive person section of the disclaimer oath does not originate in the 1955 Legislation but it originates in the 1951 Legislation.

I have it before me.

It states, "Every person who shall be in the employ of the State of Washington shall be required to make a written statement subject to the penalties of perjury that he or she is not a subversive person."

Then it goes on to state, "Any such person failing or refusing to execute such a statement or who admits he has a subversive person, as defined in this Act, shall immediately be discharged."

It does not afford the opportunity of a hearing.

This is further corroborated by the agreed fact on page 169 of the record where the -- the counsels have agreed that execution of the required oaths on Forms A and B, described in the paragraph immediately above as "Oath Form A", is made by statute and action of the defendant regents a condition precedent to any and all employment at the University of Washington.

That means that if a tenure professor should ask for a hearing, he should be granted a hearing.

The only question is who is -- did he signed the oath?

If he failed to sign and if this is, as stated here as it is, an absolute requirement work -- employment, then it is clear that it's a sham hearing.

There simply is no hearing for the tenured professor.

There are --

Justice Potter Stewart: At what stage is this oath required to be signed as you understand it?

Before a person is employed or on his application or what?

Mr. Arval A. Morris: (Voice Overlap) --

Justice Potter Stewart: As I understand it, nobody signed yet.

You just --

Mr. Arval A. Morris: Well, what happened, Your Honor, is that the statute was passed in 1955.

Justice Potter Stewart: Yes.

Mr. Arval A. Morris: It was immediately enjoined by the --

Justice Potter Stewart: Yes.

Mr. Arval A. Morris: -- lower court in the State of Washington.

That was appealed to the Washington State Supreme Court that reversed but they maintained the injunction pending appeal to this Court.

This Court heard argument, had briefs and then sent back the case for decision on the hearing question.

The lower court -- pardon me, the State Supreme Court of the State of Washington wrote a very broad and discursive opinion in which the Section 19 was argued and what have you -- and that the lower -- the State Supreme Court refuse to take that into account.

And then they came back here --

Chief Justice Earl Warren: Would you speak a little louder please?

Mr. Arval A. Morris: Yes, sir.

The -- the net result is that this oath and the statute have been enjoined for the last nine years.

Consequently, there would be a low level enforcement.

Consequently, what would necessarily in suit except for the time when the injunction in Nostrand against Little was dissolved.

Now, that point, then a new demand was made on all faculty on May 28th, 1962, that they execute Oath Form A --

Justice Potter Stewart: All present members of the faculty?

Mr. Arval A. Morris: Yes.

Justice Potter Stewart: With or without tenure?

Mr. Arval A. Morris: Yes.

Justice Potter Stewart: Were asked to sign?

Mr. Arval A. Morris: Yes.

At page 304 in the record --

Justice Potter Stewart: It's -- it's a one shot thing, you sign it once under the provisions of the (Voice Overlap) --

Mr. Arval A. Morris: No, the 1931 oath is an annual oath.

Justice Potter Stewart: Annual oath.

Mr. Arval A. Morris: Yes.

Justice Potter Stewart: That's a promissory one.

Mr. Arval A. Morris: Yes.

This is an annual.

Justice Potter Stewart: The -- the other two are just one -- one shot.

Mr. Arval A. Morris: Well, the -- the oath itself is a one shot arrangement as far as I can tell.

Yes, sir.

Now -- but --

Justice John M. Harlan: Mr. Morris --

Mr. Arval A. Morris: Yes.

Justice John M. Harlan: What questions are being presented now?

Mr. Arval A. Morris: Well, the question I'd like to speak to is --

Justice John M. Harlan: Now -- let me answer my question -- ask my question to you.

What question was being presented now in this appeal that were not raised in the, what I call, the second Nostrand case which we dismissed for lack of a substantial federal question?

Mr. Arval A. Morris: Well, non-tenured member of the faculty before this Court --

Justice John M. Harlan: Is that all?

That -- is that the only difference?

Mr. Arval A. Morris: Aliens are also before this Court quite contrary what the State says.

On page 304, there's an actual demand that alien, Professor Didrickson signed the oath.

Justice John M. Harlan: Well, is it -- is it fair to say that the substantive constitutional questions which are tendering here, all the exceptions that you indicated as to non-tenure employees and aliens that the question is --- were before us then or the one that you are tendering now?

Mr. Arval A. Morris: The State Supreme Court has passed on all of the substantive First Amendment issues that we raised would depend and it -- including other issues as well, the bill of attainder issue and self-incrimination issue.

Justice John M. Harlan: No, I'm talking about the questions that you put to this Court, not to the State Supreme Court, the questions that you put to this Court in the second Nostrand case, if I may use that term, which we dismissed for lack of a substantial federal question.

Mr. Arval A. Morris: I wasn't here in that case.

I believe that this Court, in that second case, had before it the argument of bill of attainder, the argument that underneath the balancing test, vagueness was not raised, preemption was raised.

Justice Byron R. White: (Inaudible)

Mr. Arval A. Morris: Was -- was not raised in the second -- Nostrand against Little --

Justice Byron R. White: (Voice Overlap) --

Mr. Arval A. Morris: -- case on appeal here.

Justice Byron R. White: Alright.

Mr. Arval A. Morris: It was raised in the lower court.

Justice Byron R. White: (Inaudible)

Mr. Arval A. Morris: The vagueness question had been argued in the State Supreme Court but I don't believe counsel pressed that here.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Arval A. Morris: Yes, Your Honor.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Arval A. Morris: It depends whether it's true, if it's true faith and allegiance to a particular Government of the United States, I would --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Arval A. Morris: Oh, well, that's an excellent oath and I would assume that no member of the faculty would be adverse to swearing that, the Constitution of the United States.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Arval A. Morris: Well, true faith and allegiance to the Constitution of United States would include the First Amendment when -- I think that would be.

Justice Arthur J. Goldberg: Could you go back to (Inaudible)

Mr. Arval A. Morris: Yes, Your Honor.

The point I'd like to address myself to now is who has to sign the 1931 oath?

The section of the statute is very clear and by definition it says, "Every professor, instructor or teacher must execute the oath."

It uses the term "professor".

Secondly, on page 303 and 304, there was an actual demand and refusal made upon Professor Didrickson, an alien, a citizen of Norway.

The -- the President of the University of Washington, his testimony was introduced by the State, has stated that the demand of May 28th was a demand that all members of the faculty execute the oath.

And what actually occurred was that we have a new president as of 1958.

I take it that he made the decision not to continue the old policy but this was unknown to Professor Aldenderfer.

Justice William J. Brennan: Does the president have discretion?

Mr. Arval A. Morris: No, Your Honor, there is no discretion here.

It's a statutory oath prescribed by the legislature that the second section says that it will apply to every professor, every instructor.

And as I understand it, the new president, President (Inaudible) came in 1958.

He simply stated that everyone has to sign.

I don't know whether he planned to continue the old practice but it would appear to me that it would be misfeasance of office to have him scratching out the statutory wording of a statute of the State of Washington.

Featured:

Cramp v. Bd. Of Public Instruction - Oral Argument

Tue, 25 Sep 2012 22:37:38 +0000

Case:

Cramp v. Bd. Of Public Instruction

Media File:

72_19611016-argument

Related Transcript:

72_19611016-argument

Transcript:

Argument of Tobias Simon

Chief Justice Earl Warren: Number 72, David Walter -- Walton Cramp, Jr., Appellant, versus Board of Public Instruction of Orange County, Florida.

Mr. Simon.

Mr. Tobias Simon: Mr. Chief Justice, may it please this Honorable Court.

This is an appeal from the final decision of the Supreme Court of Florida, upholding the validity of Fla. Stat. 876.05 against the contention that this statute violated the provisions of the First and Fourteenth Amendments to the United States Constitution.

This is the Act which requires that all public employees in the State of Florida, including David Walton Cramp, who is a teacher, execute a loyalty or expurgatory oath as a condition of his employment.

The pertinent provisions of that oath other than the ones that were in effect prior to 1949 which at that time simply required all public employees to swear loyalty to the Constitution and to the -- and to the United States, now require that the public employee swear that he is not a member of the Communist Party and I quote, “That I have not and will not lend my aid, support, advice, counsel or influence to the Communist Party; that I do not believe in the overthrow of the Government of the United States or of the State of Florida by force or violence; and fourth, that I am not a member of any organization or party which believes in or teaches directly or indirectly the overthrow of the Government of the United States by force or violence.”

Now, the appellant, Cramp, had been employed in Orange County as a teacher for nine years when just prior to the institution of this litigation, it was realized that through some administrative oversight, he had not executed the loyalty oath.

He was approached and requested to sign the oath.

Justice Potter Stewart: How long is this statute been on the books?

Mr. Tobias Simon: Since 1949 sir.

Justice Potter Stewart: So it was there when he first became employed as a --

Mr. Tobias Simon: Yes, that is correct.

Cramp refused to sign the oath on the grounds that the State could not validly and constitutionally require that he execute this oath as a condition of his employment and for no other reason.

He brought an action in Orange County under Florida statutes for declaratory relief to declare the statute invalid and to assert his continuing right to teach school without the necessity of executing this oath.

This relief was denied to him by the Circuit Court and this decision was affirmed by the Supreme Court of Florida and this appeal then followed.

I would like to state that the issue before this Court as I understand it is not whether or not Florida is to be required to keep communists in its roles of public employees nor is the question so ably put by my Brother that Florida cannot establish reasonable qualifications for its teaching personnel or other employees.

Because however, there is always and this Court has always recognized the duty of a State with regard to its public employees to establish only and stipulate only those qualifications which are reasonable and which are reasonably designed to fit the man to the job.

Because of that requirement, we state that the issue before this Court is whether or not the qualifications imposed by Florida are reasonable and whether they bear a reasonable relationship to the position itself.

Irrespective, I wish to point out at this point in the argument whether these qualifications were imposed through the procedural device or vehicle of the loyalty oath or whether they were imposed by statute.

I think there is no issue about the fact that a state cannot impose qualifications for employment which violate due process, equal protection and this Court has unanimously stated on many occasions.

Cons --

Justice Felix Frankfurter: You argue the oath in its entirety beyond the power of the state or you emphasize when calling our attention to the oath, a particular clause?

Mr. Tobias Simon: I will emphasize --

Justice Felix Frankfurter: Is that --

Mr. Tobias Simon: I will emphasize three particular clauses of (Voice Overlap) --

Justice Felix Frankfurter: My question is not merely emphasis but do you say that no clause of this oath could stand or some could but it's mixed up with others that couldn't?

Mr. Tobias Simon: It is conceivable and I do not wish to reach the point necessarily that the first of the clauses that one must not be a communist in order to teach in the public schools.

It is conceivable that under present decisions of this Court, Florida could stipulate a qualification that no communist could be a teacher in the Florida schools.

Justice Felix Frankfurter: Well, the first one is the -- to swear to support the Constitution.

What about that, (Inaudible)?

Mr. Tobias Simon: That of course is -- that is the same oath that I am required to take and I believe that the Justices of this Court are required to take it --

Justice Felix Frankfurter: Oh, (Voice Overlap) --

Mr. Tobias Simon: -- there's no quarrel about that.

Justice Felix Frankfurter: I can conceive of even such an oath that you single out nobody in the community except the particular person or particular class that you might have a basis of proposition or question.

The second clause is I'm not a member of the Communist Party.

Would that pass your scrutiny?

Mr. Tobias Simon: We do not at this point contend that this particular qualification would be unconstitutional.

Justice Felix Frankfurter: The next one, you have indicated that it's beyond the power of the State that I have not -- will not lend my aid, support, advice, counsel, influence, you challenge that?

Mr. Tobias Simon: On at least three grounds, if Your Honor please.

Justice Felix Frankfurter: And the next one, that I do not believe in the overthrow of the Government of United States or of the State of Florida by force or violence.

Mr. Tobias Simon: We challenge that, yes sir.

Justice Felix Frankfurter: You do challenge that.

Mr. Tobias Simon: Yes sir.

Justice Felix Frankfurter: The next one, that I am not a member of an -- any organization or party which believes and/or teaches directly or indirectly the overthrow of the Government of United States or Florida by force, you must challenge that if you did the previous one?

Mr. Tobias Simon: We likewise challenge that on additional grounds to all the others.

Justice Felix Frankfurter: Alright.

Mr. Tobias Simon: If I --

Justice Felix Frankfurter: I just want to get -- focus my mind to what it is that I'm going to listen to.

Mr. Tobias Simon: If I may direct my attention to the first of the clauses which Your Honor has indicated we oppose, and that is the question of that clause of the oath which states that I have not lent aid, support, advice, counsel or influence to the Communist Party?

Now, the State of Florida has specifically interpreted this clause to me that I do not presently lend aid, support, influence, counsel or advice to the Communist Party, but that I have never at any time in the unending test, done such an act.

Now we maintain and contend, regardless of the fact that this is included in a loyalty oath that this particular qualification is beyond the power of the State to require of an employee that he executes and makes such a statement as a condition of employment.

In the first place, it can hardly be alluded to as a qualification of a teacher.

We do not say that a State may not ask to secure this information but Florida has said blanketly that no person who has ever lent aid, support, counsel or advice to the Communist Party is suited to be a teacher or other public employee.

It is immaterial whether 30, 40, 50 years ago, an individual may have joined the Communist Party or lent aid, support, counsel or advice whatever those words mean to the Communist Party for one day and since that time, devoted himself to a program of rabid anti-communism, if you will, spent that time acquiring enumerable college degrees and presented himself on the doorsteps of our capital building in Tallahassee only to be told there that the law of this State disqualifies you from being either a public employee or a teacher.

Justice Felix Frankfurter: May I ask you whether the Communist Party ever appeared on the official voting ballots of Florida?

Mr. Tobias Simon: Not to my knowledge if Your Honor please.

The progressive party was there and that, in some minds, is exactly the same thing in Florida.

Justice John M. Harlan: How do you jump the hurdle, the necessity of your argument of this part, how do you jump the hurdle if the Supreme Court of Florida said in view of the allegations of the complaint, which you said that he has never given any such aid or he had no standing as a matter of state law to raise a question, why isn't that an adequate statement?

Mr. Tobias Simon: Well, Mr. Justice Harlan, what the State of Florida said was that we had no standing to raise this as a matter of ex post facto.

They said that this law was not an ex post facto law with regard to this particular appellant and they may be right.

However, what I am saying here is that this particular qualification cannot be imposed as a matter of due process and he certainly has not waived his rights by merely stating that he has never done this under the Due Process Clause to assume this would mean to say for example that Torcaso had to be an atheist in order to obtain relief from this Court.

Justice John M. Harlan: Yeah, but the Court, the Florida Court as I read its opinion said, you cannot raise your Constitutional objections to this because you have no standing in light of your allegation with your complaint?

Mr. Tobias Simon: I would respectfully submit that this particular question insofar as there is any merit to it and we do not concede that there is merit to the statement, but that any standing to sue is -- we do have standing to sue because this is a matter of due process that a man who states that he is not a communist and has never lent aid, support or counsel or advice to the Communist Party is nevertheless entitled as an American under the Due Process Clause to refuse to execute an oath which requires that he so state this.

A man for example, this Court has stated that a state cannot pass a law that no public employee may go to mass or no person who attends mass can be a public employee.

Now, I may not ever have attended a mass and yet I believe that this law is invalid and that I have a right not to execute such a note and that disqualification cannot be imposed by the State irrespective of my religion.

The fact that a law is bad, the fact that a qualification for employment violates due process, does not depend on whether the individual who is involved in the procedure, so long as he is in the class which is being effective, a non-public employee could not come to this Court and complain, but this man is a public employee.

Justice John M. Harlan: You argue in effect that this certain state ground is not one that we should recognize as an adequate state ground, that's the substance --

Mr. Tobias Simon: That is correct.

Justice John M. Harlan: -- of your argument.

Mr. Tobias Simon: Yes sir.

And I also state that if there is any merit to it whatsoever, it is restricted to the question of whether or not Cramp can claim that he is within the class that can raise the issue that this is an ex post facto law, but we rest primarily on the proposition that the asserted state ground is not a proper one.

Justice Felix Frankfurter: But I think you are casting your net too broadly if I may say so.

This Court has said again and again that if a particular individual himself, a particular individual himself could not be affected by a statute, he can claim injury on behalf of others who might be in the same class, but were not excluded by the record filed.

I think of the case in 204 U.S. I think of a lot of cases to which this Court has said (Inaudible) if somebody who is hurt by this.

I think the ground as you -- as you put it that he represents the class.

He doesn't represent a class if he is in a class by himself.

Why does he put that into his pleading?

I'm not saying -- I'm not suggesting, to be clear about it that -- that an argument can't be made but not your argument.

Mr. Tobias Simon: The --

Justice Felix Frankfurter: That's simply because he is in a class.

The point is he has taken himself out of the class.

Mr. Tobias Simon: No Your Honor.

We submit that he is within the class that is being affected.

He is within the class of public employees who are asked to comply with a particular qualification.

Now, the reason why --

Justice Felix Frankfurter: But to go to the -- perhaps one ought to hear your objection, if you go to the objection of such a class, the objection namely that they can search way back into his life, I don't know how many years back, that's why I asked you when the Communist Party was established.

He is in Florida or he may have been a member of the Communist Party of the United States, suppose he take judicial notice that -- that's got on the way 1919 or 1920 which puts a judicial notice and the litigant party came in to being, your argument then is (Inaudible) that that means that he did anything from 1920.

And thereafter, did everything to oppose that which he did in 1920, he still would be within.

But if a man takes himself out of the class but there's no such danger, then I don't think your answer to Justice Harlan's question is adequate that he is in that class.

The point is he's not in that class because he's taken himself out of that class.

I think there are other objections possibly but not your objection that he's in that class.

Mr. Tobias Simon: Well, we respectfully submit that the mere statement, the mere fact that he has come to this Court as others have not done and have stated what his political beliefs are does not remove him from the protection of the Due Process Clause, Now this Court, I do not believe will take the position that there must be a doubt in the minds of Justices before they will give benefit of the First Amendment and the Fourteenth Amendment to the litigants.

Suppose Torcaso --M

Justice Felix Frankfurter: But there's nothing (Voice Overlap) --

Mr. Tobias Simon: -- had come --

Justice Felix Frankfurter: Isn't a question of doubt in our minds.

It's a question of a litigant asking for a leave on the basis he's hurt by something and he says, “I haven't been hurt by this.”

Mr. Tobias Simon: Well, we submit that we are hurt because this is a man who should not be required to submit to a qualification which offends the Constitution regardless of whether he himself is a person who is being hurt directly.

We submit that there is an indirect hurt to him because he is a public employee.

I refer again to the example of Torcaso.

If Torcaso had come to this Court and stated that he was not an atheist, I suspect that the decision of this Court must necessarily have been exactly the same because Maryland cannot impose a religious test upon public employees whether atheist raised the question or non-atheist raised the question and I suspect that the Due Process Clause under which we are claiming here is as much available to non-communist as it is to those who have a lent aid, influence or support to the Communist Party or to those, I think this is basically the question who do not come and tell this Court as Torcaso did not come, as Garner did not come, as the attorney in the Konigsberg in the following case and test flow did not come and so this Court.

Justice Felix Frankfurter: I don't accept your starting point, you see.

I can well understand that a man like Torcaso can file or his lawyer can file a complaint in which he said this is of no hurt to me.

It couldn't possibly make any difference to me to sign it.

I'd be glad to sign it but I just want to get a ruling from this Court on whether such a statute is constitutional.

Speaking for myself, I have the greatest doubt, but I would think that presents the case of controversy before this Court.

Mr. Tobias Simon: Except that in this case, if Your Honor please, this man did not sign this affidavit and the statements that he made in his complaint were not regarded by the State of Florida as a substitute for this affidavit.

And unless he -- and until he signs this affidavit, he is not in a position to draw on public funds and I would like to add the following.

The statements that he made in his complaint do not foreclose the issue because the language that is used in this particular clause of the oath that he has not lent aid, support, influence, counsel or advice to the Communist Party are so vague, broad, general as to be actually incapable of analysis or interpretation except as in a -- except in a completely subjective manner and the fact that he stated that in his opinion he did not do these things is not a guarantee because of the looseness.

Justice Felix Frankfurter: He's not a guarantee of what?

Mr. Tobias Simon: That some Court will find --

Justice Felix Frankfurter: Now, you're talking so far as I'm concerned (Voice Overlap) --

Mr. Tobias Simon: That some Court would find that he has done exactly the same thing --

Justice Felix Frankfurter: Now, you're talking.

Mr. Tobias Simon: -- or has not done exactly the same thing.

Justice Felix Frankfurter: Now, you talk --

Mr. Tobias Simon: But this another ground why this particular language, the vagueness and Your Honor of course has dissented in both Garner and in the American Communications Association --

Justice Felix Frankfurter: But that's a very different argument --

Mr. Tobias Simon: -- on the same ground.

Justice Felix Frankfurter: -- from the one that you thought was conclusive.

Mr. Tobias Simon: I had not at that point come to that argument Your Honor.

Justice Felix Frankfurter: What you're saying is that he might sign this oath and he might subject himself to prosecution of perjury and then at least would have to litigate whether what he did not 40 years ago but two years ago could be regarded on the appropriate charge by a judge to a jury as bringing himself within these terms support, advice, counsel and influence to deny that and therefore it's a case of perjury.

Now, I understand you.

Mr. Tobias Simon: That is because the language of this particular section is incapable of actual definition and therefore as a matter of due process should not be included among the qualifications for teachers or public employees in Florida or in any other state.

The next clause of the oath is the clause which states that I do not believe in the overthrow of the Government of the United States and also that I am not a member of any organization which believes in, and this of course I think is impossible and so the persons who were at the statute added the words “word teachers, directly or indirectly the overthrow of the Government of the United States by force or violence.”

To my knowledge, there has been but one other case in which the question of belief in terms of violent overthrow of the Government has come before this Court and that was some 10 or 11 years ago in American Communications Association versus Douds.

At that time, the Court by a three-to-three decision affirmed the judgment below.

Nevertheless, Justice Vincent, Mr. Justice Vincent in writing for the majority put a gloss on the word belief and stated that the only thing that this can constitutionally mean is a belief in the objectives of violent overthrow as an immediate objective rather than as a prophecy.

And this concept has come down to us since that time.

In Speiser -- Speiser versus Randall, although that dealt with the question of advocacy, this Court insisted upon and secured from the Attorney General of California the statement that the advocacy therein involved was advocacy not as an immediate objective -- not as a prophecy but as an immediate objective.

And if it is true for advocacy, of course, it must necessarily be true for inner beliefs which this Court Douds and all time subsequently stated are in violence.

This position was urged before the Supreme Court of Florida and was ignored, but we go on to state that regardless in our opinion and we so contend to this Court that regardless of any gloss, any shaving that can be made of this word believe that the concepts of belief and a man's beliefs are not the function or the power of Government to inquire into.

Neither this Court nor any arm of Federal Government, nor the State Government of Florida, can call into play and demand to know what are a man's beliefs as a condition of his employment.

And we submit that any requirement as a qualification for public employment that a man divulge his beliefs must be unconstitutional and invalid under the provisions of the First Amendment.

The old story of Dionysus who had a man killed for dreaming, that he killed somebody would I think follow in this case and I think that this Court should strike down any qualification for employment that requires an individual and especially a teacher fit within a stereotype concept of belief.

And again --

Justice Potter Stewart: Aren't you making a pretty broad argument?

Certainly, if you want to hire a teacher to teach geography, you'd be -- it would be irrelevant if he -- if he happened to believe that the world is flat, wouldn't it?

Mr. Tobias Simon: No sir.

I do not believe and we -- and it's our position that a man's beliefs are in violence.

The State cannot call forth any statement from him as to his beliefs as a condition of employment.

I think that persons, I think that Christian Science practitioners are perfectly capable of teaching medicine in a medical school.

I think that persons who are biblical fundamentalist are perfectly capable of teaching --

Justice Potter Stewart: Evolution.

Mr. Tobias Simon: -- evolution in a college.

I think that a catholic president for example is perfectly capable of expressing the viewpoint that there should not be public aid to education or can support a program of birth control in and throughout the nation.

In other words, I do not believe that there is a necessary corollary that what a man believes will obviate or will excuse him from the sworn duty to follow a prescribe curriculum whether he'd be president or whether he'd be a janitor or a public school teacher.

Justice Felix Frankfurter: Are you saying -- are you suggesting it's far a field that --

Mr. Tobias Simon: Yes sir, I -- I --

Justice Felix Frankfurter: -- what I want to know -- what arguments imply.

You're suggesting that a state university could not avow refusing to employ a conscientious believer in Christian Science to its medical faculty, is that what you're saying?

Mr. Tobias Simon: Yes sir.

And I believe that Your Honor said something to the same effect --

Justice Felix Frankfurter: I hope I didn't.

Mr. Tobias Simon: -- in Garner [Attempt to Laughter] where you stated that man cannot be asked to swear about something they cannot be expected to know, such a demand is at war with individual integrity.

It can be no more justified than the inquiry into belief which Mr. Justice Black, Mr. Justice Jackson and I, deemed invalid in American Communications Association versus Douds.

Justice Felix Frankfurter: That means that the State of Florida can't refuse to employ a plumber on its law faculty because he is expected to know about law, is that it?

Mr. Tobias Simon: No sir.

The qualification of knowledge is an entirely different proposition from the qualification of the --

Justice Felix Frankfurter: In the first -- we'll reject the whole basis on which a medical school is conducted for good or bad reasons, is violating -- the state is violating the First Amendment.

I think you'd --

Mr. Tobias Simon: I do not --

Justice Felix Frankfurter: -- you'd get more mileage if you went down with some another argument.

Mr. Tobias Simon: Well, we state that in this particular instance, a man's beliefs as to violent overthrow, do not serve as a basis for excluding him from the faculty in a public school system in Florida for two reasons which we have stated; one, because the concepts of belief are beyond the power of the state to inquire into, and secondly, and certainly, and this Court has held on this point that the only type of belief in this area which can serve as some basis for inquiry is a type of belief or advocacy into the overthrow of the Government as an immediate objective rather than as a question of prophecy.

Justice Felix Frankfurter: I do not -- I do not understand why on your theory, you do not challenge the requirement of denial to become a member of the Communist Party?

Mr. Tobias Simon: Because, I believe that this Court has already foreclosed that question.

I think that the State has the power to prohibit from its employ and I believe Your Honor did so state that a state can prohibit from its employ, Your Honor stated this in your dissent in Garner, any person who seeks to overthrow the Government by force or violence or is -- or are knowingly members of organizations engaged in such endeavor.

Justice Felix Frankfurter: But you are challenging the force and violence part of this oath.

Mr. Tobias Simon: Not the force and violence part. I challenge the --

Justice Felix Frankfurter: I thought you're (Voice Overlap) --

Mr. Tobias Simon: -- ability of the State of Florida to require that a man express his beliefs as distinguished from his actions in membership, as distinguished possibly from his advocacy, written statements or oral statements but I maintain that it has always been the concept of our Constitution and of this Court that individual integrity requires that an individual's unspoken, unadvocated, unwritten beliefs are his and belong to him privately and solely.

Justice Felix Frankfurter: But did I understand you correctly to say that you challenge the clause that, “I do not believe in the overthrow of the Government of United States by force or violence.”

Mr. Tobias Simon: Yes sir because it states the word ‘believe.'

Now, to state that I do not advocate the overthrow of the Government by force or violence is an entirely different matter provided of course, and I make the same proviso on the belief clause, provided that by advocate both legislature and the courts of Florida mean as an immediate objective as distinguished from a prophecy.

Justice Felix Frankfurter: And so Florida can refrain to appoint somebody to teach civics that it has called in so many institutions who says, “I firmly believe -- I do believe in the overthrow of the Government of United States by force or violence.”

Mr. Tobias Simon: I would say --

Justice Felix Frankfurter: Is that right?

Mr. Tobias Simon: -- that the minute -- no sir, because as soon as this is stated, it now becomes a matter of record, it is a matter then of advocacy.

And on this proposition, I think this Court has ruled that you cannot discharge an individual or refuse to hire an individual where advocacy of an idea, as a matter of long-term prophecy as distinguished from an immediate objective is the criteria.

Justice Felix Frankfurter: Well, I don't understand you quite.

Suppose this oath was submitted to somebody who satisfies all the requirements; all the other intellectual requirements for having him to teach civics to the institutions of Florida but he says, “I cannot conscientiously sign the clause concerning the oath if it contains the clause, I do not believe in the overthrow of the Government by force or violence because I do believe in it.”

Mr. Tobias Simon: That I believe also can be an entirely different matter.

The State has the right to inquire of him as to what his beliefs are as a means of measuring his competency and his ability to act as a teacher but to blanketly state that no person who does not sign this oath can be a teacher, I maintain and here we come of course to the distinction --

Justice Felix Frankfurter: You mean -- let's see if I understand, if it -- if a teacher to be hired for civics could be required to sign this, but a teacher of mathematics could not.

Is that the point?

Mr. Tobias Simon: No sir.

Justice Felix Frankfurter: What is the --

Mr. Tobias Simon: Neither -- neither a teacher -- no teacher and no public employee can be subjected to a state qualification or employment wherein belief is the sole criterion upon which he is to be hired.

Justice Felix Frankfurter: Well then, I am assuming that they've put him through the ropes as to where he studied and what books he's read and all the rest and also this that you must sign an oath that you do not believe in the overthrow of the Government by force or violence.

You say that's alright, don't you?

Mr. Tobias Simon: No sir.

Justice Felix Frankfurter: That's wrong.

Mr. Tobias Simon: That is correct.

That is wrong.

Justice Felix Frankfurter: But when is it alright?

Is any time alright?

Mr. Tobias Simon: It is, in my opinion, never alright for the state to inquire into the man's beliefs as a condition of his employment.

Justice Felix Frankfurter: Well then let me ask you again.

If a person is under consideration to teach and to be employed as a teacher of civics in a Florida institution, high school or college, and he has to sign an oath, I do believe – I do not believe in the oath of the Government of United States by force or violence, may the state exact such an oath or not.

Mr. Tobias Simon: No sir.

Justice Felix Frankfurter: Alright.

Mr. Tobias Simon: Because this involves the man's beliefs.

Justice Felix Frankfurter: Alright.

Mr. Tobias Simon: And these beliefs cannot be for -- cannot form the basis of an exclusion from public employment.

Now, I have stated that these qualifications, the retrospective qualifications, the matter of belief and advocacy which are contained in the Florida oath are bad.

I maintain that these qualifications are invalid and are unconstitutional because they violate due process, there is no place for penitence or return, they violate the guarantees of the First Amendment which keep I believe a man's beliefs and right to advocate in violence and if these qualifications had been enacted by statute, those qualifications would not have been proper.

We further maintain that because these qualifications are embodied in a loyalty oath which is presented to some 40,000 public school teachers and many more times that number of public employees within the State of Florida, that the requirement of the loyalty oath itself as a procedural device is invalid.

Now, the reason why we maintain that position is because the requirement that a man execute and oath as distinguished from complying with certain qualifications, imposes upon him the necessity of submitting his associations, his beliefs, his concepts to the State in order for him to secure a position.

Unquestionably, the execution of a loyalty oath is a restriction upon the privileges and rights of association, thought and belief guaranteed by the First Amendment.

If we are to say that the interest of a state in prescribing qualifications are so important as to outweigh the interests of the individual then it might be contended that the means of achieving these qualifications, the means of establishing these qualifications in gaining this information, can be utilized through the means of the loyalty oath.

But this, I believe, runs afoul of the concept that was established or utilized in Shelton versus Tucker where this Court stated that where there are alternative means of acquiring information, where there are alternative means of achieving an end desired by the State, a second balance must be struck if one method utilizes less danger and less harm or establishes less harm for the individual's rights then that is the method which must be chosen.

Now, we submit that to -- that to turnover to the entire body of public employees in the State of Florida, an oath requiring that they give their associational ties and an expression of their beliefs and concepts even if for example, this Court were to say that they could have this information in the first place, that this is not the proper method of achieving this, that this has a chilling effect upon their rights, upon their associational rights as guaranteed under the First Amendment and this Court I believe has prescribed and has shown the method that can be utilized to prescribe these qualifications and that is the matter of the employer-employee investigation.

And this Court has on several occasions, in Beilan, Lerner versus Casey, Konigsberg, Anastaplo, Nelson and Globe cases has stated that an employee, if challenged or questioned must come forward and give full and frank answers.

And we submit that this is the method that Florida must utilize because if a teacher -- if there is a question about a teacher or a public employee, then it is well within the province of the State to rid itself of communists or other incompetent personnel to call the individual in.

Some due process at least must be observed, some type of hearing must be given; something is afforded this individual.

The interests of the individual can be protected.

The demands upon the state are small and this method can be utilized far better than the blanket loyalty oath because it is our position that if we give at this time, blanket support for the concept of a loyalty oath, then through this device, each and every employee can be required to submit to doctrines in which the school boards or the government officials feel are important.

We can be required to submit in signing oaths involving beliefs or disbeliefs or membership or nonmembership in organizations which are not the Communist Party, organizations which are unpopular in Florida or elsewhere.

Justice Hugo L. Black: May I ask you a question?

Mr. Tobias Simon: Yes sir.

Justice Hugo L. Black: I haven't quite understood some of the lines you've drawn.

Suppose a man was about to be appointed to a job of this Government, he would have to pass on the jobs desired by others.

He should be asked to swear that I believe that no person should be discriminated against on account of race, color or religion.

Would you see a difference between that and the oath you would take that would be required if it said that I will not discriminate on account of race, color or religion, one being a statement of what he believed and one being a statement of what he would do, is that the line you're drawing?

Mr. Tobias Simon: Yes sir.

Requiring a man's actions are of course -- would -- the state can require a man to act, an employee to act in a way in which he desires, but a state cannot require that a man believe a -- in a particular thing.

We also have laws in our -- in Florida, require -- prohibiting certain types of discrimination based on color, but I do not believe that the State has got the power to make this individual swear that he believes that discrimination is bad.

I think his beliefs are his own and so long as he is doing a proper job then this is all that can be constitutionally required of him.

Justice Felix Frankfurter: Do you think of -- do you think a man's conviction of what he promises to carry out -- about what he promises to carry out has no relation to the reliance one can place upon his capacity to carry out or to be subject to carry out.

Mr. Tobias Simon: Mr. Justice Frankfurter, I have not mentioned --

Justice Felix Frankfurter: I thought we've had a great deal of --

Mr. Tobias Simon: I have not mentioned a man's --

Justice Felix Frankfurter: (Voice Overlap) talk about that to the contrary.

We want people actually to believe certain things as an assurance that they will see to it that having power, they will carry that duty into action.

Do you think men are (Inaudible) like that if they say, “I will do this --” you can count on him to do it although he pleaded the opposite?

Mr. Tobias Simon: No sir.

I think when a man promises or undertakes to do a job than he is required to do it.

But I feel that --

Justice Felix Frankfurter: You can count on that no matter what?

Mr. Tobias Simon: I feel that --

Justice Felix Frankfurter: That's ultimately so.

Mr. Tobias Simon: -- that the danger to this country and to our institutions of having government inquire into a man's beliefs and stipulating that a man must believe in a particular manner as a condition of employment can lead to far greater danger than the possibility that a man might not do a job even though he has sworn to do it because he doesn't feel within himself that this is the way he would like the system to be.

We might all feel very well that a man who is going to be a notary public should believe in God because he must administer an oath, but that is not to say that the State has got the power to require that he believe in God as a condition of this.

Justice Felix Frankfurter: There may be a difference of opinion as to what a man's belief regarding the ultimate mysteries of the universe.

That's a very different thing from saying that a man who is charged with a duty shouldn't be expected while legislation is written.

We have a number of enactments of Congress, the PVA I believe is one, Justice Black will correct me, but I think that's one if the person to be appointed by the President should be a man who has faith and conviction in the particular enterprise and therefore as an extra energetic impulse to carry out that enterprise, isn't that true?

I believe that's true.

Justice Hugo L. Black: I don't know precisely what the position is?

Justice Felix Frankfurter: But there are several such things that the appointees by the President should be people who believe in the policy which they're called upon to execute.

Mr. Tobias Simon: I do not say that it is not desirable to achieve this.

What I -- what I do state, however, is that the State, so long as there is no expression of a man's beliefs and as long as there is no reduction of his duties on the particular job that he has to perform, that the question of belief is not within the realm of Government to inquire into or to prohibit.

Justice Hugo L. Black: Without getting into this, the soundness or the unsoundness of your position that I was just trying to clarify; as I understand, what you're saying is that the Congress would have passed a law requiring all candidates for Congress or the Senate to swear that they believe in the operation of Government without any special discrimination against any group that that would not be a good requirement and -- but that it would be quite different if they required him to swear that he would not conduct his office in such way as to deprive that.

That is the line you're drawing whether good or bad.

Mr. Tobias Simon: That is precisely the line we are drawing, yes sir.

We might state also that going back in this picket of the belief in violent overthrow of the Government that one can, I believe, without being a disloyal American believe that if circumstances and conditions obtained that existed were so bad that the only resort to correction was violent overthrow then this does not necessarily make him a bad American.

It does not necessarily make him unfit today when he states that conditions are good and are favorable and that conditions can be rectified in a proper and constitutional manner.

This does not make him a person who is incapable of holding public office or public employment.

Justice Hugo L. Black: I assume you're taking, arguing literally which maybe a wrong way to argue, a statement made by Mr. Justice Roberts in one of the cases, I've forgotten which one, substantially to the effect that a man's beliefs are empowered, but his conduct can be regulated for the good of society.

Mr. Tobias Simon: Absolutely and I'm also taking up the statements that were made in the Anastaplo to exactly the same effect where this young man as an attorney for example, stated that he would not subscribe to the proposition that he did not believe in the overthrow of the Government by force or violence under certain circumstances that might exist at some long time in the future, but it was quite clear that he believed that these circumstances were not present within our society or our civilization at the present time.

Chief Justice Earl Warren: Mr. Simon, we'll reduce it to very simple terms.

You -- you make a distinction I take it that it is perfectly proper to require a public employee to swear that he will support the Constitution of the United States, but that it is improper to compel him to say that he believes in every article of the -- of the Constitution of the United States as a prerequisite to getting a public job.

Mr. Tobias Simon: Yes Your Honor.

Chief Justice Earl Warren: There -- I point that out because there are a great many people today who are in the news all the time, claiming that the provision for an income tax is the work of communism in this country and he could demand who had that belief could hardly take the kind of an oath that is presented here.

Mr. Tobias Simon: I --

Chief Justice Earl Warren: There are others who believe that the provision allowing women to vote is wrong.

There are people who don't yet believe in the direct election of the United States Senators, but if all those people can -- would be debarred because they believe that way even though they conscientiously would take an oath to support the Constitution of the United States, it would debar a lot of people, wouldn't it?

Mr. Tobias Simon: I hardly need to add Your Honor.

I agree with Your Honor's statement, I hardly need to add that in Florida, there are a great number of people who feel that some of the decisions of this Court are in precisely the same light that you have cast under these other amendments to the Constitution.

Chief Justice Earl Warren: Yes.

Mr. Tobias Simon: And it seems to me that there we have persons throughout our state government, sworn to uphold the Constitution and the decisions of this Court interpreting the Constitution who nevertheless do not believe in the decisions of this Court and believe that they are correct or proper or should have been issued in the first instance.

Justice Felix Frankfurter: Mr. Simon does a (Inaudible) -- if one takes an oath to support the Constitution, he takes an oath to support the whole Constitution.

Mr. Tobias Simon: Yes Your Honor.

Justice Felix Frankfurter: And one of the important provisions of the Constitution is the mode by which things you don't like in the Constitution can be taken out of the Constitution and the mode in the Constitution which is set forth is that changes must be made in an orderly way and not by force and violence.

And you say that a state can say that you must at least agree that the changes that you want to have come into being, the things you don't like -- you don't have to like everything in the Constitution, but there's a provision the Constitution which says if you don't like it then get busy and get it repealed.

Mr. Tobias Simon: But you must support it.

You must --

Justice Felix Frankfurter: And therefore, you say a state cannot ask a man to say, “I believe in the Constitution including that provision of it that the things you want to take out, you should take out by reason and votes and not by force,” isn't that right?

Mr. Tobias Simon: I -- I do not feel that that is anymore consistent than requiring that a man working to amend the Constitution be required to support it during the time that he is amending it.

Now, what Your Honor has stated maybe so and the decision of this Court indicated it was so for an applicant to a bar which is of course within the peculiar ability of a Court to set as to the qualifications of membership of attorneys before a bar.

But I do not think that this general requirement should carry over into the hundreds of thousands of public employees throughout the country because I think that then we will obtain and secure a situation in which all manners of beliefs are going to be inquired into and are going to be required to be set forth.

Justice Felix Frankfurter: That's a different argument.

I'm merely suggesting that a man can shout from his -- from the House top that he doesn't like being compelled and he can shout from the House top that he thinks it was a great mistake to give the women to vote, that doesn't mean he can go out and smash things up because the Constitution indicated how he can bring his disagreements with specifics into -- into realization.

Mr. Tobias Simon: I assure Your Honor I am --

Justice Hugo L. Black: I don't understand that you disagree with that.

Mr. Tobias Simon: I'm sorry sir.

Justice Hugo L. Black: I didn't understand if you disagree with that.

Mr. Tobias Simon: No sir.

I --

Unknown Speaker: (Voice Overlap) --

Mr. Tobias Simon: I assure Your Honor that I am not proposing that Mr. Cramp who was a perfectly good teacher until five minutes before he was presented with this oath or five minutes after he go out and smashed things up.

What I am saying is that if he was a good teacher, he was a good teacher for nine years without the state knowing the first thing about his beliefs.

Justice Felix Frankfurter: And knowing everything --

Mr. Tobias Simon: And I --

Justice Felix Frankfurter: -- about Mr. Cramp.

All I'm suggesting is that it doesn't prevent anybody from expressing the most vehement disagreement with any specific provision of the Constitution and yet to require him to say that he wants the change made by the way in which the Constitution has indicated changes should be made.

Mr. Tobias Simon: Well --

Chief Justice Earl Warren: Mr. Simon, but -- also, I think there are some states in -- I'm trying to think my own, I ought to know because I took the oath a good many times, but I think there are a good many of them that require a man to -- to take an oath that he will not only support the Constitution, but the laws of the State of California.

Now, they don't carry, the laws don't carry that implicit thing in them for -- for repeal Mr. Justice Frankfurter has -- has been talking about.

But I suppose that when I took the oath to support the Constitution of the State -- Constitution and laws of the State of California that I wasn't saying that I believe in the wisdom and the policy of every law that was on our statute books.

I took the oath that I would support them because they were on the statute books and there is a difference between belief in what you will -- what you will do as a public official.

Mr. Tobias Simon: I sincerely hope so Your Honor because that is why I am here.

That is what --

Justice Felix Frankfurter: Nobody has been asking you to say that he believes in all the laws of the State but --

Mr. Tobias Simon: But this --

Justice Felix Frankfurter: -- believing in the Constitution is a very different thing because that's an organic document which has the means of some correction within it --

Chief Justice Earl Warren: The dis --

Justice Felix Frankfurter: -- and the statute doesn't.

Mr. Tobias Simon: Oh I --

Chief Justice Earl Warren: So the distinction without a difference.

Justice Hugo L. Black: What percentage of the people do you suppose do believe that every single provision of any state constitution?

Mr. Tobias Simon: I do not understand the -- these concepts of believing it.

Justice Hugo L. Black: I'm not talking about what's supported.

Mr. Tobias Simon: I -- I --

Justice Hugo L. Black: I recall once from the -- many constitutions have provided that there's no liquor should be sold.

I'm just asking what percentage would you make of the people that take an oath soundly and truthfully, they really genuinely believe that every provisions of every state constitution --

Mr. Tobias Simon: Present company excluded of course, Your Honor, I would venture to say that probably nobody does.

I do not think I have much time left.

Justice Felix Frankfurter: Why do you present company?

Mr. Tobias Simon: Well sir I --

Justice Felix Frankfurter: Because every provision the Constitution has an amendment written into it that if you don't like it get it repealed.

That's also part of every provision.

Justice Hugo L. Black: For a man might try to enforce it and still want to -- and get out and try to get it repealed, might he not?

That frequently have been, doesn't it?

Mr. Tobias Simon: Yes Your Honor.

Justice Hugo L. Black: I have known it to happen.

Mr. Tobias Simon: I would like to reserve my final time for rebuttal.

Chief Justice Earl Warren: You may Mr. -- you may Mr. Simon.

Mr. Wells.

We haven't much time but you can get started.

Argument of J. R. Wells

Mr. J. R. Wells: Mr. Chief Justice, may it please the Court.

It will be my purpose to take up the several clauses of this oath one by one but before I do, I want to call particular attention to the fact that we do not have in this case the kind of situation that was involved in the Wieman versus Updegraff where scienter was construed by the Oklahoma Supreme Court as not being implied in the Oklahoma statute because both prior to the time this oath was submitted to Mr. Cramp for execution and in the course of this case, the Supreme Court as well as the trial court here, specifically held that scienter was implicit in the provisions of the statute.

In going back to the Wieman versus Updegraff case, that was in 1952 that this Court held at an Oklahoma statute requiring a specified oath on the basis of -- was in that -- on the basis that the Oklahoma Supreme Court had held that knowledge was not a factor under the Oklahoma statute.

Chief Justice Earl Warren: We'll recess now Mr. Wells.

[Recess]

Mr. J. R. Wells: May it please the Court.

Just before adjournment, I made mention -- excuse me -- of the case of Wieman versus Updegraff decided by this Court in 1952 in which this Court held invalid an Oklahoma statute because scienter had been -- or knowledge had been held by the Oklahoma Court not to be a factor under the statute.

In the -- two times before this Court had decided the Garner case in which this -- in which knowledge was not referred to in the ordinance there under consideration, but the Court had sustained the ordinance stating we assume that scienter is implicit in each clause of the oath.

And in the Wieman case, this Court commented regarding the Garner case of -- that one of the attacks made on the oath in that case, that is the Garner case was that it violated due process because its negation was not limited to organizations known by the employee to be within the prescribed clause and then the Court said that this argument was objected in that case because we thought justified and assumed that scienter was implicit, each clause of the oath.

In 1957, more than two years before the oath was presented to appellant here for execution.

The Florida Supreme Court had before it the case of State versus Diez in which there was involved an indictment for perjury in connection with the making of an oath under a statute.

And in that indictment, there it was not alleged that the statements were willfully false or anything about the employee having the -- particular individual having knowledge of the subversive nature of the activities.

The -- in holding the indictment defective for one of those allegations, the Court said, this conclusion that is that the indictment was defective does not lead us to a decision declaring the act unconstitutional because we think it is inherent in the law that when one takes the oath, that he has not lent aid, advice, counsel and the like to Communist Parties represent an oath he had not done it -- with knowingly.

And the Court in the discussion in the Diez case discussed both the Garner case and the Wieman case when one of the complaints in the -- complaint by appellant here, in his complaint, was that the Florida statute did not have the element of scienter.

The trial judge said that that contention was not well founded and then quoted from the Diez case.

In the --

Chief Justice Earl Warren: Mr. Wells, in that -- in that case, what phase of the oath was alleged to be precarious --

Mr. J. R. Wells: The lend and aid, support and --

Chief Justice Earl Warren: I beg your pardon.

Mr. J. R. Wells: The lending of aid, support and so forth to the Communist Party in the past.

Chief Justice Earl Warren: What did it allege?

Mr. J. R. Wells: What did the indictment allege?

Chief Justice Earl Warren: Yes.

Mr. J. R. Wells: It merely alleged the fact that he had lent aid, support and so forth but there was no allegation regarding the fact that it was knowingly done or the willfully done it.

And --

Chief Justice Earl Warren: What facts were alleged?

Mr. J. R. Wells: Just the --

Chief Justice Earl Warren: The conclusions?

Mr. J. R. Wells: The fact of lending aid and support, but nothing with regard to knowledge or willful.

Chief Justice Earl Warren: Yes, well, was it just conclusory that -- that he lent his aid and support but -- or did they charge -- charge that he had -- had given some specific support.

I just didn't (Voice Overlap) --

Mr. J. R. Wells: My recollection is that it was in general terms, but I have the case here.

Chief Justice Earl Warren: Well, its -- if you don't --

Mr. J. R. Wells: I don't recall exactly but I think it was in general terms.

Justice William J. Brennan: The attack on the indictment alone or was it after a conviction?

Mr. J. R. Wells: It was attack on the indictment.

The indictment is being held to be insufficient by the trial judge and there was an appeal to the Supreme Court from that decision of the trial judge.

And --

Justice Felix Frankfurter: Mr. Wells.

Mr. J. R. Wells: Yes sir.

Justice Felix Frankfurter: Forgive me for interrupting you.

I didn't hear Mr. Simon in the course of the argument raise the question of scienter so I assumed you accept --

Mr. J. R. Wells: That's --

Justice Felix Frankfurter: You accept the state court's decision that scienter is to be read into the statute and therefore the statute comes here with that -- with that authoritative interpretation of your court.

Mr. J. R. Wells: That's my assumption because I don't read any of his -- either his jurisdictional statement or his brief as raising any question of scienter.

Justice Felix Frankfurter: I just wonder whether your appeal must be taking your time to answer an argument that is --

Mr. J. R. Wells: It may be that I am Your Honor.

Justice Felix Frankfurter: Not that it's been abandoned but he just accept (Voice Overlap) --

Mr. J. R. Wells: And if so, I apologize.

I just wanted to make it clear that scienter was not -- the absence of scienter in the Florida statute was not effective.

Chief Justice Earl Warren: But can you apply that rule of scienter to beliefs?

Mr. J. R. Wells: I apply it Your Honor that he's -- it's got to be a willfully and knowingly false.

In other words, that he has not -- that if he does not -- unless he is willfully and corruptly swearing to it that there could be a prosecution on it.

That's a way -- that's the way I apply it Your Honor.

In other words, there has got to be knowledge of the -- the facts that it is a false statement of belief that it's bona fide that there couldn't be a prosecution of it, but turning then to the allegations of the -- of the statements that have to be in the oath under the Florida statute.

I understand no question is raised with regard to the first statement after the support in the Constitution and so forth that I am not a member of the Communist Party that it is conceded by opposing counsel that that is not an invalid requirement in an oath of this kind.

So that brings it to the second clause or the next clause following that that I have not and will not lend my aid, support, advice, counsel and influence to the Communist Party.

Now, as I understand, the question is put -- is quite well eliminated as to any question that could be raised by somebody else, not a party to this suit.

In other words, as to whether this is a bill of attainder on ex post facto law as to somebody else.

It is not involved here where appellant has alleged that he has never lent aid, support, advice, counsel and influence to Communist Party.

But -- and in our brief, we have made the subsidiary contention that even if that were before the Court that that could be sustained but in view of the fact that it is so clear that he can't raise it, I'm not going to take the time on argument of going into that.

But --

Chief Justice Earl Warren: Would it --

Justice Felix Frankfurter: Are you --

Chief Justice Earl Warren: Go ahead please, please.

Justice Felix Frankfurter: Are you going to argue what you call a subsidiary point that in case he is in no position that the stand -- put the standing problem to one side?

Mr. J. R. Wells: Yes sir.

Justice Felix Frankfurter: And assume it weren't in this case, I understood you to say a minute ago that if that were so, you would also defend -- you would defend the power of Florida that as – (Inaudible) anybody else whom it appoint but assume a teacher, but I have not -- will not lend my aid and support, advice to the Communist Party.

Mr. J. R. Wells: I would Your Honor on the same theory on which the Hawker case was decided and the same theory on which --

Justice Felix Frankfurter: In what case?

Mr. J. R. Wells: The Hawker -- the -- involved in --

Justice Felix Frankfurter: New York?

Mr. J. R. Wells: Yes sir, involving the -- not --

Justice Felix Frankfurter: You have to get a license to be a hawker.

Mr. J. R. Wells: He practiced in Madison and he had committed an abortion 15 years before the Act was passed and yet it was held to be valid to prevent him from practicing medicine and on the same theory on which the DeVeau case I believe it was, was decided two or three years ago by this Court involving the union officers on the Waterfront in which ex-felons were precluded from being union officers notwithstanding the fact that they had been convicted many years before.

Now, I realize that the (Inaudible) case involving an attorney in either Illinois, I believe Illinois or one -- some state has to be taken into account in connection with that where there was just the member of the Communist Party many years before.

But I do think that in view of the element of scienter here, and that you can sustain so far as the school teacher is concerned not requiring the pupils around the hazard of whether a reform has been bona fide where he has knowingly aided a subversive organization in years gone by.

Justice Felix Frankfurter: Let me ask you this question Mr. Wells.

Mr. J. R. Wells: Yes sir.

Justice Felix Frankfurter: I suppose your state university is dependent on state funds for its activities.

Mr. J. R. Wells: Largely so, yes sir.

Justice Felix Frankfurter: Well, suppose Mr. Simon said there never was a Communist Party on the electoral ticket in Florida.

Mr. J. R. Wells: I don't recall that definitely but I don't think there was.

Justice Felix Frankfurter: Well, suppose the Communist Party of United States in 1924 or 1925 found out that there was a campaign on to increase the appropriations for the University of Florida, to double the appropriations of the previous years, I don't know whether they did it one year or two years.

Two years?

Mr. J. R. Wells: Two years Your Honor.

Justice Felix Frankfurter: Suppose there was up a referendum to issue bonds to double the appropriations to the University of Florida, and suppose the Communist Party had sent in its most vocal leaders to support such an amendment and made a lot of noise in support of it.

And suppose some members of the faculties in University of Florida were on the same platform with the Communist Party leader, solely -- had a meeting solely restricted to promoting the adoption of that bond issue amendment.

Now it could be argued that thereby he was aiding -- couldn't it be argued that he was aiding or couldn't it be fairly argued that that was an aid of the Communist Party because he lent his prestige and his respectability, etcetera, etcetera, etcetera. Couldn't that be argued?

Mr. J. R. Wells: I felt that Your Honor that that would come within it for the reason that I don't think parallelism of action would -- I think it would --

Justice Felix Frankfurter: Well it doesn't --

Mr. J. R. Wells: -- be an aid to the Communist Party.

Justice Felix Frankfurter: Well, when you say you doubted it, I -- am I -- is it fair to imply that it would raise a question and a conscientious lawyer could argue that's an aid?

Mr. J. R. Wells: Well, it's hard to --

Justice Felix Frankfurter: At all events, it isn't like the Hawker case or the DeVeau case where the Court had before it the consequences that a state may be allowed to draw from a criminal conviction and the relation of such a criminal conviction to a subsequent position of responsibility.

Mr. J. R. Wells: You don't have the element of a conviction.

No, Your Honor.

Justice Felix Frankfurter: But it only meant words like aid or support, for instance, support if a distinguished member of the University of Florida is on the same platform under the auspicious of the Communist Party sponsoring increased appropriations for the university.

It could be a man wouldn't -- wouldn't look ridiculous or wouldn't be left out of the Court if he was totally supporting the Communist Party, would he?

Mr. J. R. Wells: Well, of course it's -- it's hard to say what a -- a man would be left out of (Inaudible) on various things --

Justice Felix Frankfurter: But (Voice Overlap) --

Mr. J. R. Wells: -- but I don't believe that would be a reasonable (Inaudible) --

Justice Felix Frankfurter: But if --

Justice William O. Douglas: If you had -- if he had six of them or eight of them or ten of them of the same quality, you wouldn't hesitate to take your case on that -- on parallelism, would you?

Mr. J. R. Wells: I don't believe that unless there was a direct element of aiding and supporting in connection with a -- contributing toward the subversive aims, I don't believe that that could reasonably come within it.

Justice Felix Frankfurter: But Mr. -- Mr. Wells.

Mr. J. R. Wells: Yes sir.

Justice Felix Frankfurter: The trouble is in your -- in your fair mind and conscientious way, you have a like to say you don't believe it, but the difficulties that I had and why, it has simply been -- what was it, Updegraff and Wieman or the other way around or was it a conscientious man taking an oath wouldn't know what he was taking an oath to.

He might say, well, I'm -- he -- I was once on a platform with Foster or what's the other fellow's name, the leader and I don't know if I swear, I never did.

It might hold me up one of these days and said, “Well, weren't you the chairman of the meeting at which -- with you meeting Foster, you made a (Inaudible) haranguing speech?

He wouldn't know, would he?

I mean a conscientious man, particularly if he isn't a lawyer hasn't the great advantage that you and I have of knowing how we play with words in the law, he might pause, wouldn't he?

Mr. J. R. Wells: Well, of course it's possible Your Honor but there are many matters that come up in connection with laws and indefiniteness where arguments can be made one way or the other and yet the laws can be held to be of sufficient depth.

Justice Felix Frankfurter: Yes.

You're asking him to swear to this thing and I'm just putting it to you.

Mr. J. R. Wells: But the element of scienter is in there Your Honor.

Justice Felix Frankfurter: Yes I know, with knowledge.

He has all the knowledge --

Mr. J. R. Wells: But does he -- and does --

Justice Felix Frankfurter: Yes but I was on that platform (Voice Overlap) --

Mr. J. R. Wells: Well, unless he intends to aid the Communist Party as such.

I don't see how he could possibly come within it.

Justice Felix Frankfurter: Well, I think from personal experience, I was once a chairman at a meeting in Boston way back, and the purpose of the meeting was to urge the Government of United States to recognize the soviet country, the present regime in Russia long before we did.

And we had all the parts of it or mix bag of speakers.

And I can assure you all sorts of inferences that might seem to you and did to me at the time ludicrous could be drawn from such chairmanship, was drawn.

Now, if I have to swear lawyer that I am, if I had to swear that I never hated the Communist Party because of the communist speaker at that meeting, in Nathaniel Hall or it was Faneuil Hall, the cradle of liberties so-called, I would fall even as a lawyer in saying I don't want to be -- oh yes, I know that I could not know sensible juries convict me but then juries aren't always sensible, no Supreme Court would sustain the conviction but then the Supreme Court aren't always sensible at least in the eyes of the various people in distant times.

It's a problem that confronts the man who's asked to take an oath which has these dubious possibilities.

Mr. J. R. Wells: Well, I realize that a contention can be made that the -- that there's too much of an indebtedness in that Your Honor but I -- when you have the scienter as a factor in it, I don't believe that that is sufficient that the oath should be declared unconstitutional on the basis of indebtedness.

Justice Felix Frankfurter: It wasn't your -- it wouldn't -- doesn't it make a difference how -- how needed this is, how essential this is to protect the interest that you have a right to protect from my point of view.

It means at any time.

Suppose you say -- if it's scienter, suppose you say it makes a difference whether its 40 years or two years or three years or five years, doesn't it?

And when you have a territory where conscientious men may forge long before they sign in the affidavit which has potentialities of perjury in the system, I don't mean conscious perjury but you've got a problem, haven't you?

At least that's what -- that's what's we had in Wieman against Updegraff and you have to hurdle that case, don't you?

Mr. J. R. Wells: Well, in that case though, the knowledge was held not to be a factor under the Oklahoma statute by the -- by the Oklahoma Court.

In other words, that was the difference between that case and our situation that is -- that that --

Justice William O. Douglas: It had no --

Mr. J. R. Wells: -- differences in the statute.

Justice William O. Douglas: You haven't -- maybe you have but I have -- I haven't been able to follow.

Disentangle the -- what we call the illegal purposes of the party and the -- what may be the lawful purposes of the party.

The party as far as I know may be for maternity care, against juvenile delinquency, for disarmament, for peace and all sorts of things.

My question is how an association purposes that may be up -- completely lawful, could be used under this statutory scheme.

Mr. J. R. Wells: I don't believe that those purposes could come within the purport of the activeness to Justice Douglas.

Justice William O. Douglas: Tell me again just why.

Mr. J. R. Wells: On account of the fact that the subversive character --

Justice William O. Douglas: But the statute says by aid, support, advice, counsel or influence to the.

Mr. J. R. Wells: Well --

Justice William O. Douglas: -- Communist Party which may have --

Mr. J. R. Wells: That -- that is construed by the Court to have reference to the subversive character.

Justice William O. Douglas: Where is that precisely?

Mr. J. R. Wells: It is on page 13 of the record Your Honor.

Justice Hugo L. Black: Suppose they knew that the Communist Party intended to be subversive, had full knowledge of it, he attended a meeting such as Mr. Justice Frankfurter mentioned where they talked about various things where this man was the chairman of the meeting or made a speech like De Jonge in Oregon, would you say that the fact that he knew about it would take away from him the protection of the First Amendment of the freedom to be there?

Justice William O. Douglas: Where -- where his advocacy or belief or what not promotes a wholly lawful phase of a subversive organizations' activities.

Mr. J. R. Wells: I think it would depend Your Honor on the motive.

In other words, whether there was a motive to advance the party knowing of its subversive character or whether it was a -- purpose of events and cause.

Justice William O. Douglas: Well, the De Jonge, the man, De Jonge undoubtedly knew about the full scope of the purpose of the party but he was held immune there because the purpose of the meeting it had -- which he attended was to aid strikers or to give relief to picket lines or something in that category that was wholly lawful.

Mr. J. R. Wells: Well, I think that that would be that same distinction here Your Honor.

Justice William O. Douglas: But I don't find it in the case of the report that you -- record that you refer to --

Mr. J. R. Wells: Well it --

Justice William O. Douglas: -- because there it says whether he has been or is or has been innocently and knowingly aligned with a subversive.

Now, De Jonge walks into the meeting knowing what the full scope of the Communist Party program is, but they're there that evening not for blowing up things but for promotion of a local cause.

Would he be caught under your statute?

Mr. J. R. Wells: I don't think he would unless his motive was to advance the cause of the party as distinguished from an advancing the cause that the party was also seeking to advance.

Justice Hugo L. Black: Well suppose a speaker had preceded him who advocated the Communist Party in its aims.

He got up and talked on a perfectly lawful subject.

Mr. J. R. Wells: Well, I don't see how unless in other words, unless the -- what he did was done for the purpose of advancing the Communist Party as distinguished from advancing the cause there that the Communist Party was also seeking to advance at the time.

I --

Justice Hugo L. Black: You mean if he had talked on something that was purposely lawful, advocated the cause that many people before (Inaudible) that the jury could convict him if they thought from the evidence of a speaker preceding him had advocated the Communist Party.

Mr. J. R. Wells: I don't think that that would be --

Justice Hugo L. Black: He too wanted -- he too wanted to aid the Communist Party looking to his motives.

Mr. J. R. Wells: I don't think that that would be sufficient Your Honor.

Justice Hugo L. Black: That -- then you wouldn't look to his motives.

Mr. J. R. Wells: I think you look to his motives but I think you'd have to have more than that to establish his motives.

Justice Felix Frankfurter: Mr. Wells, my narrow point is this that if you were defending this man in the hypothesis put, I'm confident if you let me say so that you get them all but you might not, you might not.

A perfectly clear cut case have reached -- have led the men in the jury box to reach a different conclusion and I'm suggesting that a lot of school teachers who aren't versed in the dialectics of the law might feel queasy and (Inaudible) naturally and justifiably queasy about running an affidavit that might lead them into -- into criminal -- into a criminal prosecution even if they're usually the defendant and whereas such a risk -- such a risk can be unfold upon by the state, it is as narrow as that --

Mr. J. R. Wells: Well, I can understand the point that Your Honor is putting and raising and realize that it's a point that has to be faced in the case, but I don't believe that it should be fatal to the -- to the statute.

Justice Felix Frankfurter: If you have -- it shouldn't be fatal to the statute if you can give a really strong weighty counter consideration why this is the way that a reasonable legislature must deal with the problem with which it has a right to deal with, namely, that puts no time limit, refuses voguish words which is susceptible of ambiguous construction etcetera, etcetera.

Mr. J. R. Wells: Of course, I realize Your Honor that the alternatives are to be taken into account to a brief but I think also that the legislature is not bound to consider the best possible alternative.

Justice Felix Frankfurter: I'm with you on that.

Mr. J. R. Wells: And that if this has a reasonable connection with a purpose which they have a right to achieve that it is something that they could have adopted.

Now, what is the purpose that they have a right to achieve so far as school teachers are concerned?

It is that in this sensitive area that persons not be teaching school where there is an undue hazard that they may be disloyal to the United States Government.

Now, this Court held in the Garner case, I think with seven out of eight of the participating justices agreeing that the provision of the affidavit plan to the effect that they were required to state whether they had ever been a member of the Communist Party, and if so, when?

Now, that went back to the indefinite past and yet that was sustained by -- by this Court, by an overwhelming vote of the justices.

Justice Felix Frankfurter: That's much more definite than this, isn't it Mr. Wells?

Mr. J. R. Wells: Well, it --

Justice Felix Frankfurter: Whether a man has been a member of a party -- there isn't much room for a debate about that.

There is some.

I'm not unaware of it but not -- nothing like aid, support, what is it?

Influence --

Chief Justice Earl Warren: Counsel.

Justice Felix Frankfurter: -- counsel.

Those are -- those of (Inaudible) words.

Those are the grab bag words, aren't they?

I don't mean they were grab bag but they're -- they're words of breadth.

Mr. J. R. Wells: Well, they are words of breadth but I think the words like counsel and advice that they have had a long history of having been used in connection with accessories, words of that kind, accessory before it, in fact on crime and things of that kind and I think all that needs to be taken into account in determining in the meaning to be attached to it as to whether the --

Justice Felix Frankfurter: They made an influence on ethnic -- aren't words of ours, are they, influence?

Mr. J. R. Wells: Well, influence is sometimes used in connection as influence in an act in connection with accessory before the fact but advice and counsel are more.

Justice Felix Frankfurter: Mr. Dale Carnegie uses them in a different sense, doesn't he?

Mr. J. R. Wells: I believe it does Your Honor.

Chief Justice Earl Warren: Mr. Wells, may I ask you this --

Mr. J. R. Wells: Yes sir.

Chief Justice Earl Warren: -- this question?

Assuming for the moment that this oath does invade constitutional rights under certain circumstances, just assuming that?

Mr. J. R. Wells: Yes sir.

Chief Justice Earl Warren: Does that lead you to the conclusion that no redress can be given to an admittedly loyal American citizen just because he asserts his loyalty.

But on the other hand, redress is restricted to communists who are admittedly disloyal.

Mr. J. R. Wells: I don't know that the question can be answered strictly that we -- Your Honor.

Chief Justice Earl Warren: Well, we've got the two extremes, two poles and --

Mr. J. R. Wells: Well, I take it for instance as applied specifically to the past, I think it's quite definite that the -- a party cannot raise a question for someone else on a constitutional question.

Chief Justice Earl Warren: That wasn't the question I asked you.

I asked you admittedly, is -- is redress denied to a man who assertedly and admittedly is a loyal citizen, but on the contrary that any redress open to anyone if there is an invasion of constitutional rights is limited to communists who are admittedly disloyal.

Mr. J. R. Wells: If they are -- to a loyal American, if his rights -- if his constitutional rights have been invaded then there certainly is redress.

Chief Justice Earl Warren: Regardless of whether he claims to be loyal or not.

Mr. J. R. Wells: That's as to whether if his constitutional rights have been invaded.

Chief Justice Earl Warren: That's right.

Mr. J. R. Wells: But the -- I think the -- it does affect whether his constitutional rights has been invaded.

What his position is and what -- how he stands with relation to the oath as to --

Chief Justice Earl Warren: In other words --

Mr. J. R. Wells: -- whether his constitutional rights have been invaded.

Chief Justice Earl Warren: Well, I'll put it this way.

In other words, if he is -- if he is a loyal American citizen and that should close the book, shouldn't it on the situation, he can be compelled to take this kind -- kind of an oath but if he is a communist and is disloyal, he need not -- he need not take it, assuming that there is some invasion of constitutional rights.

Mr. J. R. Wells: Well, that would depend on whether there is an invasion of his constitutional rights.

There's an invasion of his constitutional rights then he can't be required to take it.

I think if it --

Chief Justice Earl Warren: Well, tell me this then.

What rights of a communist can be invaded and be subject to redress without the same invasion giving a loyal American citizen a right to redress?

Mr. J. R. Wells: Well, a communist or a person who has lent aid or support to the Communist Party years ago and has reformed then he would be entitled to raise a question as to whether that was a bill of attainder or ex post facto law as to whether how that -- it would be answered, it would be a different question but he would be entitled to raise that question as to whether there was passed to him a bill of attainder or ex post facto law.

But I don't think that a person who says that he has never lent aid, support and so forth to the Communist Party can raise the question as to whether it's an ex post facto law or bill of attainder because it couldn't possibly be as to him.

Chief Justice Earl Warren: Yes, but suppose a man -- a man like Justice Frankfurter was talking about, a man who had supported certain causes that the Communist Party supports.

Suppose he supported a broad program of public housing, a broad program of maternal care, broad program of let us say public medicine and things of that kind, suppose he supported those things permanently but did not support any of their subversive programs, would he then -- would he -- wouldn't he then have a -- have to stop, look and listen before he signed any such affidavit for fear, three or four half a dozen people would say I saw him on the platform with so and so.

I saw him when the communists were advocating this or advocating that.

He spoke from those very, very things in company with them on the same platform.

Wouldn't a man in that position be in a delicate -- delicate position to sign an affidavit of that kind on the question of beliefs and counsel and aid and so forth?

Mr. J. R. Wells: Oh, I think he would -- he would have the right to raise the question as to whether his constitutional rights had been invaded by the unconstitutionally vague statute as -- but I don't believe --

Chief Justice Earl Warren: Where could he -- when -- where could he raise it?

When he's charged with perjury?

Mr. J. R. Wells: I think he could raise it in advance although I do think --

Chief Justice Earl Warren: Do you have procedure for that in Florida?

Mr. J. R. Wells: Well, I think -- I think he could raise it in a type of procedures that is raised – that's invoked here.

But if I say I think he could raise it in a type of procedure that was invoked to him, declaratory decree if his constitutional rights have been invaded.

But I question that his constitutional rights have been invaded and also, I think that if a person is not in a very good position to say that I could not sign that oath as to whether to the effect that I've never lent aid and support because of doubt as to what might be considered aid-support and yet at the same time square that I have never lent aid or support.

Chief Justice Earl Warren: But suppose the man was in this position.

Suppose he said -- he said, “Yes, I was -- I was very much in favor with all of these things and I have -- have enumerated and I did cooperate with the -- with the Communist Party when they were advocating such things but I have no truck at all with their other -- with their other beliefs but I did counsel with them.

I did advice them, I did -- I did talk with them on the -- on the platform.”

What would his position be then?

Mr. J. R. Wells: Well, that gets to the question as to whether it is fatally indefinite and with the scienter in there, I don't think it is fatally in depth because you've got to show a lack of bona fides in connection with it and I don't think that there -- in order to show that it was false and I don't think that that could ever be shown.

Chief Justice Earl Warren: Was there anything in -- in -- in the statute or in the decisions of your Florida Supreme Court which hold that the -- that the cooperation and the -- and the counseling and assistance and so forth that is contemplated by this oath must be as to those facets of the Communist Party that have to do with overthrowing our government?

Mr. J. R. Wells: I don't -- I think that the statement by the Court in this decision substantially holds that Your Honor.

Chief Justice Earl Warren: Where?

Mr. J. R. Wells: In the statements.

Chief Justice Earl Warren: What does it say?

Where -- where can we find that?

Mr. J. R. Wells: At the bottom of page 13 of the record.

Chief Justice Earl Warren: Of the record.

Mr. J. R. Wells: Yes.

Chief Justice Earl Warren: Yes.

Justice Hugo L. Black: May I ask you to get there from my mind about this.

Mr. J. R. Wells: Yes sir.

Justice Hugo L. Black: Is it your argument that no man can raise this who is not affected by it and no man can be affected by it unless he's been guilty of the things which it prohibits?

Mr. J. R. Wells: Not exactly Your Honor.

It is --

Justice Hugo L. Black: But it is your idea that in order to challenge it, he must show -- he comes within the class who have either been a communist, is a communist who has advised, aided and abetted communists.

Mr. J. R. Wells: It is my position that where he shows that he has not --

Justice Hugo L. Black: Suppose he hadn't shown he has not?

Suppose he just comes in and says, “I want to raise the question of the constitutionality of this” and they say, “Well, you've got to show you were within the class by denying that you are -- by admitting that you have done some of these things.”

Mr. J. R. Wells: Well, I think that that would be a more questionable --

Justice Hugo L. Black: More questionable?

But if it's the other way, if -- why wouldn't it be here that if a -- is it your argument that this particular man does not have the right standing because he has denied that he's been a communist or is it your idea that a man must show he comes within the class that it touches, which is it?

Mr. J. R. Wells: Well, I think it's necessary that he show that he come within the class Your Honor.

Justice Hugo L. Black: Suppose he (Voice Overlap) --

Mr. J. R. Wells: However -- but -- certainly if he (Voice Overlap) --

Justice Hugo L. Black: Suppose he didn't come (Voice Overlap) --

Mr. J. R. Wells: -- he doesn't come within the class --

Justice Hugo L. Black: Suppose he just comes and says, “I'm not going to answer this.

The laws are unconstitutional.”

And they say, “Well, does it affect you?”

He said, “I won't say it.”

Mr. J. R. Wells: Well --

Justice Hugo L. Black: Would he have standing?

Mr. J. R. Wells: I doubt that he would but of this situation that he --

Justice Hugo L. Black: In other words, he decided to come in -- when he's got to come in and do as I -- your argument, as I understand it, is to come in first and either admit that he is a communist or has done these things under which -- under which circumstances, he would have standing to challenge.

Mr. J. R. Wells: I think it depends on which standing the question what it would be brought.

Justice Hugo L. Black: Standing the question of this Act.

Mr. J. R. Wells: Well, I think he has standing in the question of the act on certain basis of it without regard to that, but I don't think he's got standing to contend that it is an ex post facto law or bill of attainder.

Justice Hugo L. Black: Why not, what's the difference?

Mr. J. R. Wells: On account of the fact that it cannot be an ex post facto or bill of attainder unless it adversely affects him.

Justice Hugo L. Black: Well, is that the only one you claim that he doesn't have standing to raise here?

Mr. J. R. Wells: Well, I think that it's affected seriously where he -- on the -- in the question of vagueness.

Justice Hugo L. Black: Do you think he doesn't have the right to raise that?

Mr. J. R. Wells: I doubt that he has the right to raise the question of vagueness where he comes in and swears to the facts that he says, the oath is too vague with regard to.

Justice Hugo L. Black: Well, I don't quite get what a man would have the right to challenge.

I've always -- suppose that the only -- that the man had have a right to challenge the law, he's accused of doing something under it and that he wouldn't have to come in and admit that he'd done it before he'd have standing to sue -- to challenge it.

He doesn't have to do that, does he?

Mr. J. R. Wells: No sir, no sir.

I don't think that's been (Voice Overlap) --

Justice Hugo L. Black: But he doesn't have to admit he comes within the class that covers, does he, so far as his conduct is concerned?

Mr. J. R. Wells: I don't think he does, generally speaking, no.

But if he shows that he --

Justice Hugo L. Black: Do you think he does under communist act but not generally, is that it?

Mr. J. R. Wells: No sir.

I don't think that that is our position Your Honor.

Justice Felix Frankfurter: Mr. Wells, there is a difference, isn't there between a man coming in to court and say, “I'm asked to sign a document.

You have no business to ask me.

I signed it and therefore I ask you to strike it down” and a man saying, “You're asking me to sign a document.

I'm perfectly ready to sign it or it doesn't cause me any kind of recognizable harm to sign it but I'd like to have the Court to make a ruling on this question.”

There is a difference between those two situations.

Mr. J. R. Wells: Well, that was the --

Justice Felix Frankfurter: I'm not saying that this is a good situation --

Mr. J. R. Wells: -- the point I was trying to make Your Honor.

Justice Felix Frankfurter: -- I don't think it is but there is a difference.

Justice Hugo L. Black: I -- I was just going to ask you if you don't think that's happened here, do you?

He hadn't come in and said that I can't possibly be touched by this Act.

Mr. J. R. Wells: I think he has to in large measure Your Honor where he says, “I have not lent aid, support and so forth to the Communist Party.

I'm not a communist.

I do not believe in the overthrow of the Government of United States and the State of Florida by force or violence and I'm not a member of an organization or parties that believes in or teaches the overthrow and --”

Justice Felix Frankfurter: Mr. Wells, isn't the truth of the matter just as interpreting what this really means, I haven't -- I don't live inside of the mind or the threat or with the constraints but he's trying, quite understandably, he's trying to ride through horses which is a feat that's not too impossible.

He's trying to say, “It's none of your business to ask me these questions but I don't want to appear -- I want to appear in the best possible life.

So I disavow having done any of the things that are disapproved by the oath.

He decides to do both those things.”

Isn't that right?

Mr. J. R. Wells: Well, to -- I think in large measure Your Honor that is right.

And I think --

Justice Hugo L. Black: Suppose he has -- suppose he has, how does he know that the state must -- that he hasn't done would not be disapproved by a group of informers or group of other people, how could you know?

Mr. J. R. Wells: Well, of course that gets to --

Justice Felix Frankfurter: That's the vice of (Inaudible) --

Mr. J. R. Wells: That gets to the question of whether it is fatally indefinite and if the statute is fatally indefinite then I don't question that the statute is invalid but that gets back to the question as to whether it is fatally indefinite.

Justice Felix Frankfurter: When you say fatally indefinite, I think if I may say so you're conjoining two very different things.

The statute isn't indefinite to defend that -- one doesn't know what it means.

It's often when one does know what it means, it raises difficulties which -- while we're here which raises a constitutional question whether you have a right to put a man in that situation.

It's perfectly plain what it means namely that you mustn't have been guilty of -- you mustn't have conducted yourself or to bring yourself within any of these rubrics.

The trouble is, as is pointed out several times in the course of this argument, this may subject him in a lawsuit and everybody knows that the lawsuit is a gamble.

Mr. J. R. Wells: I realize that there is that possibility Your Honor.

Well, the next clause of the oath --

Justice Charles E. Whittaker: Mr. Wells.

Mr. J. R. Wells: Yes sir.

Justice Charles E. Whittaker: This is the heart of the case for me here.

Here is an averment either that one can or that he cannot make such an affidavit in such a case ever relevant in such a case?

Mr. J. R. Wells: I believe it is Your Honor.

I believe it's relevant.

You mean as to whether he can make the --

Justice Charles E. Whittaker: Whether he could -- whether he is able by reason of his past conduct to make the affidavit or he is not able, is that ever a relevant averment in a complaint in the case like this?

I'm thinking that if it is then one who doesn't say as this plaintiff did say, “I can honestly make the affidavit” would be presumed to be unable to make it.

So is it ever relevant such an allegation?

Mr. J. R. Wells: I don't know.

I'm sorry that I'm --

Justice John M. Harlan: I thought your position was that it might be relevant on the question of the state rule that says that you cannot come in and raise a constitutional claim if this appears in the face of your complaint, the -- if you don't claim here, that'd be personal injury -- personally injured by the claim if it's -- if by the statute if it's enforced against you and all you want is a general declaration of rights under the law.

I thought that's what you state the Supreme Court had said.

Mr. J. R. Wells: I think that that is -- is what enforced.

Justice Charles E. Whittaker: Well, isn't that quite another thing even if these averments of the kind made by here by this petitioner in paragraph 6 on page 2 of this record are irrelevant and are not necessary.

Yet by making them, is it true as I understand your court has held that he has reduced his complaint to a request for an advisory opinion and therefore has shown its non-justiciability?

Mr. J. R. Wells: I think that --

Justice Charles E. Whittaker: That's a different question isn't it?

Mr. J. R. Wells: I would have thought it was at least to the clause and relief question Your Honor.

Justice Charles E. Whittaker: Well, even if such an averment could never be relevant yet one might voluntarily by allegations like those in paragraph 6 of this complaint, show that he could not be injured by them and say, “I can make” as he says he can make this very affidavit and therefore reduced his complaint to a mere request upon the Court to render to him an advisory opinion.

Mr. J. R. Wells: Well, I -- I think that's -- I think that's correct Your Honor.

That's correct.

Justice Hugo L. Black: Suppose it is true that a person has no standing to sue in the Florida Court, do you think he's having a standing to raise this constitutional question in any way?

Mr. J. R. Wells: I think the --

Justice Hugo L. Black: And so where would it be but the federal courts.

Mr. J. R. Wells: I think the Florida rule on that is that has been referred to as a state rule is similar to a rule that this Court has announced as to the necessity of a person injured in -- a necessity of a person being injured in order to get a decision on the constitutional question.

Justice Hugo L. Black: But that's -- that's arguing the merits of the rule not what I understood Justice Harlan to be talking about that this is a Florida rule.

Mr. J. R. Wells: Well, if -- if that is --

Justice Hugo L. Black: What about Mooney and Holohan that Florida won't let him raise?

Mr. J. R. Wells: I beg your pardon.

Justice Hugo L. Black: What about the rule in Mooney and Holohan that Florida will not let him raise this constitutional question?

Mr. J. R. Wells: You mean as to --

Justice Hugo L. Black: The right to raise it in the federal court.

Mr. J. R. Wells: Well, it's entirely possible that there might be the right.

I haven't --

Justice Hugo L. Black: Is it your idea that your Florida rule is intended to be played that whether the federal rule required to be not -- this man shall not be allowed to raise this constitutional question in the Florida Court under the circumstances here?

Mr. J. R. Wells: I think so far as this case is concerned Your Honor that if the -- if the Florida Court has announced a rule which is a sufficient rule of state law to decide this case then as to whether there's any other redress I think would be a question for another case.

Justice Hugo L. Black: Well, are you arguing that it's still the Florida rule or that you're following the federal court to say it has no chance to -- suppose you're wrong on the federal rule --

Mr. J. R. Wells: Well, I'm saying --

Justice Hugo L. Black: -- do you still say that Florida will deny him relief?

Mr. J. R. Wells: I feel like Your Honor that the Florida rule is sufficient to deny him relief.

Justice Hugo L. Black: In Florida.

Mr. J. R. Wells: In Florida.

Now, I'm under the general impression that the federal rule is not too much different from the Florida rule in that regard but I'm --

Justice Hugo L. Black: But that would result in -- meaning that the man can have his constitutional right violated with no possible remedy in the federal or state court.

I thought Mooney and Holohan held different.

Mr. J. R. Wells: Well, I don't --

Justice Hugo L. Black: I thought --

Mr. J. R. Wells: I'm not familiar with those two decisions that the --

Justice Hugo L. Black: Mooney versus Holohan where the question was whether California has failed to give a remedy where there was a charge that the man had been convicted on perjurious evidence knowing that the evidence was -- the state knowing it was fault.

That was (Voice Overlap) --

Mr. J. R. Wells: I remember something out of the case now Your Honor.

I didn't recall it (Inaudible)

Justice Hugo L. Black: And this Court held that it would not have -- as I recall it.

I haven't read it yet, (Inaudible) it would not assume that California would not give a relief in the federal constitution is violated, the man is condemned from the consideration on that basis.

I think that was (Inaudible) --

Justice Felix Frankfurter: Mr. Wells.

Mr. J. R. Wells: Yes sir.

Justice Felix Frankfurter: The -- I think I've been talking a little bit at large as to what the complaint says and what the courts held.

Mr. J. R. Wells: Yes sir.

Justice Felix Frankfurter: To be sure, paragraph 7, the complaint says, the plaintiff is a loyal American and does not decline to execute (Inaudible) oath of fear of the penalty provided by law of false oath.

And then it goes on in the next paragraph and says, “nevertheless he objects to it” because to require him to swear that he has not lent aid, support etcetera, brings him in the violation of the due process of law.

He doesn't spell out why it's a due process of law, but he has a right not to foreclose in making any proper inferences drawn from the (Inaudible) of what he does.

Now, your Supreme Court didn't say, which for me would make a very difference -- it'd be a different case, your Supreme Court doesn't -- hasn't said that in view of paragraph 7, despite his reliance on due process, he has said in effect that I have no concern with the consequences of signing this oath.

I'm not worried that any jury in Florida would -- could construe such an oath by lending aid and support, except to mean that I was a member of the Communist Party, that I have a definite organic relation with the party.

And if he wanted to say that then under Florida law, it should have been more particular.

For myself, I think Florida can -- if he chooses to continue the common law pleading which strict -- with all the strict technicalities of that system of pleading.

All your Supreme Court had said was this, “By the allegations of his complaint, the appellant under oath affirmatively denied any present or past associations which would preclude him from executing the subject oath.”

He stated in his complaint quote, “That he has not, does not and will not lend aid, support or advice, counsel or influence the Communist Party.”

That's all I find in the opinion of the court that you point out some things that I've missed as well I might have.

And therefore, all they gather from his disavow is that he was not -- that he did not have present or past association with the Communist Party.

Now, that for me still leaves open the danger he runs of having perfectly innocent constitutionally allowable conduct interpreted by a jury with the finding that he did give aid or support.

Mr. J. R. Wells: Oh, did Your Honor read from the bottom of page 18 and top of page 19?

Justice Felix Frankfurter: That's what I've been reading from.

Mr. J. R. Wells: I didn't --

Justice Felix Frankfurter: That's just what I've been reading from Mr. Wells and that's all I find.

For myself, I think states can be as pugnacitive as they want to be so long as they don't use pugnacities as a means of defeating federal rights because they can be as exacting as they plead in pleadings, but I don't find that the Supreme Court here has made any such ruling.

Mr. J. R. Wells: Well, I see that my time is nearly up and I'll just briefly refer to the clause of the oath.

I do not believe in the overthrow of the Government of United States and the State of Florida by force or violence.

I would like to call your particular attention to the fact that the language there does not contain the words that Mr. Justice Frankfurter felt to be particularly obnoxious in the Douds case with regard to where -- by unconstitutional or illegal means that they are not in the Florida statute and that this is limited to the violent overthrow by force or violence which I think would go far to eliminate the objections that was dealt in part in the Douds case.

Now, I think the -- on that clause, the validity of the oath might well depend on what is to be meant, considered to be meant by that expression.

In other words, does that refer to a belief in the abstract doctrine of the overthrow of Government by force or violence or does that have reference to the overthrow as an objective of the Government as presently constituted by force and violence.

And I think that it definitely has reference to the overthrow as an objective of the Government by force or violence -- as presently constituted and does not refer to any plea within the -- for some conceivable set of circumstances not now existing or some dictatorship or something of that kind.

Thank you Your Honors.

Chief Justice Earl Warren: Mr. Simon.

Rebuttal of Tobias Simon

Mr. Tobias Simon: The Court will note from the brief that this action was brought in Orange County, Florida pursuant to the provisions of Florida statute 87.01 which under Florida law permits an individual who is in doubt as to his status and his rights under a Florida statute to bring an action for declaratory relief.

Now, this is not a procedure that is available in every state.

It is available within the federal system.

And while this does not give an individual the right to ask for and secure an advisory opinion, it is something very close to that.

It does give him the right to have the Court adjudicate for him whether he is required to sign -- in this case, sign this oath or not.

I think it is important to point out to this Court that there were at least and not less than six points raised on our appeal to the Florida Supreme Court and the Florida Supreme Court answered all six points, five of them in a substantive manner.

They said, for example, that the question of scienter was no longer in the case.

They said that the question of preemption of subversion under the Nelson case is no longer in the case.

They ruled specifically on the question of whether we had to take this oath or whether the Constitution of Florida limited public employees to a constitutional oath.

They ruled and said specifically that anybody who can read English as to the requirements of the statute knows exactly what it means on the question of the so-called vice of vagueness.

They also said that due process and First Amendment provisions were not applicable and then and only then on pages 17, 18 and 19 of the record did they come to the question of ex post facto and bill of attainder and they said with regard to these questions and only these questions do we maintain that there is no standing to sue.

Florida did not say that there was no standing to sue with regard to the other questions.

Justice Charles E. Whittaker: May I ask you Mr. Simon.

Is the effect of that argument to regard paragraphs 6 and 7 of the complaint as surplusage?

What effect have they under this argument?

Mr. Tobias Simon: It is not surplusage according to the Florida Supreme Court with regard to the questions of ex post facto and bill of attainder.

They said that this man cannot raise the question whether -- and they said specifically on page 19 of the record, there could not and I quote, “There could not possibly be a legislative adjudication of guilt for the simple reason that the complaint on which the appellant stands and set up firmly points out.”

They said the same thing that this statute could not constitute an ex post facto law as to this appellant but they did not say that this appellant was not permitted to raise the due process question and they did not say that this appellant -- of course they said that there was no denial of due process, but they ruled on that and they did not answer the other questions on this ground which if they have wanted to, they could have dismissed our entire brief and our entire complaint raising six assignments of error on this last one and they did not do it for the simple reason that the Florida Supreme Court did not hold that there was no standing to sue.

We submit that where this man's rights are being invaded as we maintain they are by forcing him to do something as a condition of his employment which he is not required to do, the fact that he is willing to show himself in a good life to this Court.

To come in as a sheep rather than as a goat does not destroy his rights.

Justice Felix Frankfurter: Mr. Simon before you sit down, in view of the breadth of your argument remain, I would like to ask you namely that no belief can constitutionally be inquired as to anybody who seeks office under the United States or state government, is that right?

Mr. Tobias Simon: Mr. Justice Frankfurter, I do not feel that my argument has to reach that point.

There may be cases wherein a guard of the president may be inquired -- one may require him to express his belief --

Justice Felix Frankfurter: Let me -- let me put a case that is in regard to the President.

The thing I referred to you but I didn't have the text before me.

The TVA Act has this provision, all members of the board shall be persons who profess a belief, just listen in what (Inaudible) this professor believes in, you must profess a belief in the feasibility and wisdom of this Act.

I gather from your argument as an unconstitutional assertion of power by the President -- by the Congress.

Mr. Tobias Simon: I have not represented the TVA nor the (Voice Overlap) of the Act and I would --

Justice Felix Frankfurter: I know but our argument either -- argument either have relevance or they don't have relevance.

Mr. Tobias Simon: And --

Justice Felix Frankfurter: And the lawyer says that a government can't ask its appointees whether they have a belief in the Constitution of the United States and its entirety or a belief in an Act under which they're supposed to act or belief in the law and the members of the law faculty then I have a right to put you a concrete case in order to test your argument.

Mr. Tobias Simon: My answer to that sir is that that particular provision in my opinion and based upon what I understand to be the decisions of this Court is that the federal government nor the government of Florida can reach into a man's mind and require it to be divulged as the condition of any governmental favor or employment.

Justice Felix Frankfurter: So that that's an unconstitutional provision in the TVA.

Mr. Tobias Simon: It was so here sir, yes sir.

Justice Felix Frankfurter: Alright.

Mr. Tobias Simon: Thank you Your Honor.

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