Whitehill v. Elkins

• Decision Date: 08 September 1966
• Docket Number: Civ. A. No. 17564.
• Citation: 258 F. Supp. 589
• Parties: Howard Joseph WHITEHILL, Jr., Plaintiff, v. Wilson ELKINS, President University of Maryland, Board of Regents, University of Maryland, J. Jerome Frampton, Jr., President, State Board of Education, Defendants.
• Court: U.S. District Court — District of Maryland

258 F. Supp. 589

Howard Joseph WHITEHILL, Jr., Plaintiff, v. Wilson ELKINS, President University of Maryland, Board of Regents, University of Maryland, J. Jerome Frampton, Jr., President, State Board of Education, Defendants.

Civ. A. No. 17564.

United States District Court D. Maryland.

September 8, 1966.

COPYRIGHT MATERIAL OMITTED

Sanford Jay Rosen, Arnold M. Weiner, Elsbeth Levy Bothe, Joseph S. Kaufman, and Lee M. Miller, Baltimore, Md., for plaintiff.

Thomas B. Finan, Atty. Gen. of Maryland, Robert C. Murphy, Deputy Atty. Gen. of Maryland, Loring E. Hawes and Julius A. Romano, Asst. Attys. Gen. of Maryland, for defendants.

Before SOBELOFF and WINTER, Circuit Judges, and THOMSEN, Chief Judge.

WINTER, Circuit Judge:

This action, brought under the Civil Rights Act, 42 U.S.C.A. § 1983, and invoking the civil rights and declaratory judgment jurisdiction of this Court, 28 U.S.C.A. §§ 1343(3), 2201 and 2202, seeks to enjoin the oath requirements of the Maryland Subversive Activities Act of 1949, 8A Annotated Code of Maryland (1964 Ed.), Article 85A, § 1 et seq., exacted of public employees as a condition precedent to public employment. Defendants' motion to dismiss admits the facts well pleaded, which are as follows:

Plaintiff is a member of the faculty of The Johns Hopkins University, teaching creative writing, an author, and a practicing member of the religious organization known as the Society of Friends. Plaintiff was engaged as a visiting lecturer in English at the University of Maryland, College Park, Maryland, for the academic year of 1966-1967. In July, 1966, a formal contract embodying the conditions of his employment was forwarded to plaintiff. He was also forwarded a document entitled "Certification of Applicant for Public Employment," which contained a loyalty oath.¹ Plaintiff was advised that he must sign it as a condition precedent to his employment. Plaintiff executed his employment contract, but declined to execute the loyalty oath. He was immediately advised by an authorized representative of the University of Maryland that that educational institution would not accept his services without the loyalty oath first having been executed by him. Plaintiff declined to sign this oath and has now brought this suit, seeking a declaration that the oath sought to be exacted from him was unconstitutional and seeking to enjoin defendants from preventing the consummation of his contract with the University of Maryland because of his failure to execute the oath.² Pursuant to prayer in the complaint, a statutory three-judge court was immediately convened, 28 U.S.C.A. §§ 2281 and 2284, and the case heard as promptly as possible, inasmuch as plaintiff's employment was to begin September 19, 1966.

The oath sought to be exacted from plaintiff is as follows:

"CERTIFICATION OF APPLICANT FOR PUBLIC EMPLOYMENT

Required by Law (Art. 85A, Paragraph 13, Annotated Code of Maryland, 1957)

"I, ___________________________ do (Print Name-including middle initial),

hereby certify that I am not engaged in one way or another in the 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 (1957 edition)."

Date _______________________________ Signature __________________________ (Name-including middle initial)

In his complaint plaintiff alleges that the loyalty oath is unconstitutional, because it infringes on his First and Fourteenth Amendment rights, is so vague as to deny him due process, and equal protection of the laws, and constitutes a bill of attainder against him. Additionally, plaintiff obliquely alleged that the oath would deny him freedom of religion, but in argument plaintiff made no contention that any specific religious belief held by him was counter to the certification that he was asked to make.

Article 85A of the Annotated Code of Maryland was enacted in its entirety in 1949 and has never been amended. Of the provisions pertinent to this case, § 10 renders ineligible for employment by the state any person who is a "subversive" person as defined in this Article. Section 13 required state employees who were such on June 1, 1949, the effective date of the Act, to make a written statement, subject to the penalties of perjury, that he or she was not a "subversive" person as defined in Article 85A, and § 11 requires every department, board, commission or other agency of the State of Maryland or any political subdivision thereof in the appointment of new employees, to establish procedures, by rules, regulations or otherwise, to ascertain that any employee "including teachers and other employees of any public educational institution in this State" is not a "subversive" person as defined in the Article. The Attorney General of Maryland, in reliance upon these sections, has expressed the view that persons rendering occasional instructional services to the University of Maryland as part of the formal instruction program are required to execute the loyalty oath pledge. 45 Opinions Attorney General 187 (1960).

The operative words "subversive person" are defined by § 1, which reads:

"`Subversive person' means any person who commits, attempts to commit, or aids in the commission, or advocates, abets, advises or teaches by any means any person to commit, attempt to commit, or aid in the commission of any act intended to overthrow, destroy or alter, or to assist in the overthrow, destruction or alteration of, the constitutional form of the government of the United States, or of the State of Maryland, or any political subdivision of either of them, by revolution, force, or violence; or who is a member of a subversive organization or a foreign subversive organization."

Because one is a "subversive person" if he is a member of a "subversive organization" or a "foreign subversive organization," the definitions of those terms, as set forth in § 1 of Article 85A, should also be stated. They are:

"`Subversive organization' means any organization which engages in or advocates, abets, advises, or teaches, or a purpose of which is to engage in or advocate, abet, advise or teach activities intended to overthrow, destroy or alter, or to assist in the overthrow, destruction or alteration of, the constitutional form of the government of the United States, or of the State of Maryland, or of any political subdivision of either of them, by revolution, force, or violence.

"`Foreign subversive organization' means any organization directed, dominated or controlled directly or indirectly by a foreign government which engages in or advocates, abets, advises, or teaches, or a purpose of which is to engage in or to advocate, abet, advise, or teach, activities intended to overthrow, destroy or alter, or to assist in the overthrow, destruction or alteration of the constitutional form of the government of, the United States, or of the State of Maryland, or of any political subdivision of either of them, and to establish in place thereof any form of government the direction and control of which is to be vested in, or exercised by or under, the domination or control of any foreign government, organization, or individual; but does not and shall not be construed to mean an organization the bona fide purpose of which is to promote world peace by alliances or unions with other governments or world federations, unions or governments to be effected through constitutional means."

While plaintiff asserts a denial of his First and Fourteenth Amendment rights to freedom of speech and freedom of association as well as equal protection of the laws, the first substantive issue we must decide is whether the oath is so broad, vague and indefinite that plaintiff has been denied due process of law. This is so because plaintiff's First and Fourteenth Amendment rights are not violated if the oath is valid under the due process clause; they have been violated only if the oath will not withstand the due process test. Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964); Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321 (1966).³ Of course, the presence of First and Fourteenth Amendment rights buttresses the strictness of the due process requirement. We turn first to whether the oath is so broad, vague and indefinite as to deny due process of law.

The validity of Article 85A under state and federal law was sustained in the state courts in Shub v. Simpson, 196 Md. 177, 76 A.2d 332 (1950); Hammond v. Lancaster, 194 Md. 462, 71 A.2d 474 (1950); and Hammond v. Frankfeld, 194 Md. 487, 71 A.2d 482 (1950). One of the parties in the Shub case sought further review in the Supreme Court of the United States, Gerende v. Board of Supervisors of Elections, 341 U.S. 56, 71 S.Ct. 565, 95 L.Ed. 745 (1951). Technically, the oath found to be valid in the Gerende case was the oath required of candidates for election by § 15 of Article 85A, while the oath to which plaintiff objects is the oath required by §§ 11 and 13 of Article 85A of state employees and appointed officers, but, since the oaths are identical in both situations, what the Supreme Court said in the Gerende case is determinative here. The Court affirmed the decision of the Maryland Court of Appeals in Shub v. Simpson, supra, saying:

"We read this decision to hold that to obtain a place on a Maryland ballot a 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 violence,' and that he is not knowingly a member of an organization engaged in such an attempt. 76 A.2d at 338. At the bar of this Court the Attorney General of the State of Maryland declared that he would advise the proper authorities to accept an affidavit in

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