Baggett v. Bullitt, 5598.

• Decision Date: 09 February 1963
• Docket Number: No. 5598.,5598.
• Citation: 215 F. Supp. 439
• Parties: Lawrence W. BAGGETT et al., Plaintiffs, v. Dorothy BULLITT et al., Defendants.
• Court: U.S. District Court — Western District of Washington

215 F. Supp. 439

Lawrence W. BAGGETT et al., Plaintiffs, v. Dorothy BULLITT et al., Defendants.

No. 5598.

United States District Court W. D. Washington, N. D.

February 9, 1963.

COPYRIGHT MATERIAL OMITTED

Kenneth A. MacDonald, Byron D. Coney, Arval A. Morris, Seattle, Wash., for plaintiffs.

John J. O'Connell, Atty. Gen., Olympia, Wash., Herbert H. Fuller, Deputy Atty. Gen., Ernest M. Furnia, Asst. Atty. Gen., Seattle, Wash., for defendants.

Before JERTBERG, Circuit Judge, and LINDBERG and BEEKS, District Judges.

LINDBERG, District Judge.

This is a class action in which sixty plaintiffs employed at the University of Washington in both teaching and nonteaching positions seek declaratory and injunctive relief against the enforcement of two Washington statutes by defendants, the President of the University, the members of the Board of Regents, and the Attorney General of the State of Washington. The statutes under attack are Chapter 377, Laws of 1955, amending the Subversive Activities Act of Washington, Chapter 254, Laws of 1951, herein sometimes referred to as the "loyalty oath" statute; and Chapter 103, Laws of 1931, herein sometimes referred to as the "oath of allegiance" statute.

It is alleged that, as applied to plaintiffs, these statutes are violative of Article 1, Section 10 and the First, Fifth, and Fourteenth Amendments of the Constitution of the United States. The court is asked to declare these statutes unconstitutional and to issue a permanent injunction against their enforcement.

Upon the filing of the complaint a three-judge district court was convened pursuant to the mandate of 28 U.S.C. §§ 2281 and 2284, and on July 13, 1962 heard arguments on plaintiffs' motion for an interlocutory injunction and defendants' motion to dismiss. The motion to dismiss was denied and a temporary injunction was issued pending a full hearing on the merits.

Pretrial conferences were held and an extensive pretrial order, approved by all parties, has been entered, containing a number of stipulations of fact relating to the events, the background, and academic setting of the controversy. Pursuant to stipulation by the parties no oral testimony was presented but statements of several persons were set forth in the pretrial order and a number of exhibits were admitted without objection. The issues of law have been carefully and extensively briefed and orally argued by counsel. This court has jurisdiction under 28 U.S.C. §§ 1331 and 1343 (3), and 42 U.S.C. § 1983, relating to alleged deprivation of civil rights under color of state law.

BACKGROUND OF THE CASE

Both of the Washington statutes involved require the taking of an oath by employees of the State of Washington. Although the oath of allegiance is required of teachers only, the 1955 statute, which is an amendment to the Subversive Activities Act,¹ provides that every employee of the State of Washington must state under oath whether or not he or she is a member of the Communist party or other subversive organization, and that refusal to answer on any ground shall be cause for immediate termination of such employee's employment or refusal to accept his or her application for employment. The terms "subversive person", "subversive organization" and "foreign subversive organization" as used in the Act are defined therein and the Communist party is declared to be a subversive organization.

While the oath of allegiance statute has not previously been attacked the loyalty oath statute has been the subject of prior litigation² commenced in the Superior Court of the State of Washington by Howard Nostrand and Max Savelle, tenured professors at the University of Washington, who are also plaintiffs in the instant case. The Supreme Court of Washington upheld the constitutionality of Chapter 377, Laws of 1955 against attack under both state and federal constitutions, with the exception of one section not here relevant, which section was declared to be unconstitutional but severable. On appeal to the United States Supreme Court that court vacated the decision of the Supreme Court of Washington and remanded the case for a determination whether state employees who refused to sign the oath would be entitled to a hearing at which the refusal to sign the oath could be explained or defended. On the remand the Washington court held that the statutes requiring the loyalty oath did not afford such a hearing but that professors Nostrand and Savelle, as tenured professors, would be entitled to such a hearing pursuant to the terms of their employment contract and under the rules promulgated by the Board of Regents in accordance with their statutory authority. An appeal was again taken to the United States Supreme Court which, in a per curiam decision handed down January 22, 1962, granted the Attorney General's motion to dismiss "for want of a substantial federal question." Whereupon the injunction staying enforcement of the loyalty oath statute, which had been in effect since 1955, was dissolved.

Thereafter, in a memorandum issued on May 28, 1962, by President Odegaard pursuant to directions from the Board of Regents, notice was given to all University employees that they would be required to sign an oath which would fulfill the requirements of the Washington Subversive Activities Act, and October 1, 1962 was set as the final date for execution of such oath. Printed forms of an oath in the following language, which differs from that involved in the prior litigation, have been distributed to employees of the University:

"I certify that I have read the provisions of RCW 9.81.010(2), (3), and (5); RCW 9.81.060; RCW 9.81.070; and RCW 9.81.083 which are printed on the reverse hereof; that I understand and am familiar with the contents thereof; that I am not a subversive person as therein defined; and

"I do solemnly swear (or affirm) that I am not a member of the Communist party or knowingly of any other subversive organization.

"I understand that this statement and oath are made subject to the penalties of perjury." (Exhibit # 2)

The sections of the statute referred to in the oath are printed on the reverse side of the oath form as set forth in the footnotes.³

The oath of allegiance for teachers is prescribed by Section 1 of Chapter 103, Laws of 1931⁴ and Section 2 of said Chapter,⁵ states that every professor, instructor or teacher employed by any state institution of higher learning or any school supported in whole or in part by public funds shall subscribe to the oath or affirmation required of all public school teachers before entering upon the discharge of his duties.

The President and Board of Regents of the University of Washington have given notice to all teaching personnel that they are required to subscribe to the oath of allegiance in addition to the loyalty oath. It is not disputed that defendants intend to exact compliance with the provisions of both oath statutes; that they have taken administrative steps to effect such compliance; and have given notice to all members of the University staff that in the event of failure of an employee to comply by subscribing to the oath or oaths required of him by October 1, 1962, "employment will be terminated 30 days later as of October 31, 1962, unless a delay in taking action to terminate seems reasonable because of causes other than intentional refusal to sign."⁶ Nor is it disputed that all plaintiffs have refused to sign the oaths required of them, alleging that the statutes are violative of their rights under the United States Constitution. We therefore find that a justiciable controversy exists as to which this court has jurisdiction. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939.

Most of the plaintiffs, including three tenured professors who are aliens, are members of the teaching faculty and are required by the Washington statutes to subscribe to both the loyalty oath and the oath of allegiance. Non-teaching employees are required to sign only the loyalty oath. Some of the plaintiffs are research associates of various ranks — one is a micrometeorologist, another is an assistant editor of the University of Washington Press, two are employed as secretary-typists, and another is a detailer in the cyclotron department. All plaintiffs are suing both for themselves and for others similarly situated.

CONTENTIONS

The basic claims of plaintiffs are as follows:

1. That the statutory requirements of oath-taking as a condition of employment by the state are unjustifiable invasions of rights of freedom of speech, belief, and association, and freedom of religion, all as protected by the First and Fourteenth Amendments to the Constitution of the United States.

2. That the oath requirements operate as a prior restraint upon free speech and free association and are destructive of academic liberty.

3. That the language of the oaths is vague and uncertain.

4. That the statutes violate the Fifth Amendment privilege against self-incrimination; and that the requirement of a positive act of oath-taking on pain of loss of employment, unconstitutionally shifts the burden of proof on the question whether they are subversive persons.

5. That the statutes and administrative action contemplated thereunder provide for summary and automatic discharge on grounds unrelated to fitness for employment and would deprive non-tenured employees of reputation and property rights without the protections of procedural due process, and are therefore an arbitrary and discriminatory exercise of state power.

6. That the 1955 loyalty oath statute is a bill of attainder.

7. Invoking the supremacy clause, plaintiffs argue that these statutes deal with sedition, a subject preempted by the Congress, under the holding of Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640. Plaintiffs further claim that the oath of allegiance statute interferes with the conduct of foreign relations in that it sets a condition for employment as a teacher in the...