Gilmore v. James
Decision Date | 15 January 1968 |
Docket Number | Civ. A. No. 3-1777. |
Parties | Everett M. GILMORE, Jr., et al., Plaintiffs, v. Jesse JAMES, Treasurer of the State of Texas et al., Defendants. |
Court | U.S. District Court — Northern District of Texas |
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David R. Richards, American Civil Liberties Union, by Fred O. Weldon, Jr., Dallas, Tex., for plaintiffs.
Crawford C. Martin, Jr., Atty. Gen. of Tex., and W. O. Shultz, Asst. Atty. Gen., Austin, Tex., for defendants Jesse James, Robert Calvert and Board of Regents of University of Texas.
H. P. Kucera, of Strasburger, Price, Kelton, Martin & Unis, Dallas, Tex., for defendant Dallas County Junior College.
Before GOLDBERG, Circuit Judge, and HUGHES and TAYLOR, District Judges.
Judgment Affirmed January 15, 1968. See 88 S.Ct. 695.
Everett M. Gilmore, Jr. was a tuba instructor at Dallas County Junior College when that newly created institution first began its academic curriculum in September, 1966. Upon his refusal to execute the non-subversive loyalty oath required of all instructors at the college,1 Gilmore was dismissed. He thereafter commenced against the trustees of the college this action for a declaratory judgment and injunctive relief,2 alleging that he was deprived of his First Amendment rights of freedom of speech, belief, conscience and association by the enforcement by the college trustees of Article 6252-7, Vernon's Ann. Texas Revised Civil Statutes,3 allegedly an unconstitutionally vague statute.
In plaintiff Gilmore's first amended complaint he is joined by Cameron Cunningham, a second year law student at the University of Texas School of Law in Austin, Texas. As a student in a state supported institution of higher learning, Cunningham has been required to comply with the provisions of Article 2908b, Vernon's Ann.Texas Revised Civil Statutes, by executing a loyalty oath similar to the one required of Gilmore. Cunningham seeks to enjoin the Board of Regents of the University of Texas from enforcing the provisions of the Texas statute requiring the student oath.
By plaintiff's second amended complaint, Robert Palter, Stuart Pullen and Thomas Mantle join the aforementioned duo. Palter is a full professor of philosophy at the University of Texas and has been so employed since September, 1964. Pullen has been an assistant instructor in government at the University of Texas since September, 1965. As a condition of their initial employment, Palter and Pullen were required to execute the oath prescribed by Article 6252-7. They attack that statute on two grounds: first, as a consequence of their signing the oath, unconstitutional restrictions upon their rights of freedom of speech and association have resulted; they are required to conform to a standard of conduct which is not susceptible of accurate determination; and they may not repudiate the oath without facing loss of status and salary. Secondly, the oath was unconstitutionally applied to them and is now and will in the future be so applied to all members of the class which they allegedly represent, to-wit, prospective employees of the University of Texas. They seek to enjoin the Regents of the University of Texas from requiring continued compliance with the provisions of Article 6252-7 and to enjoin the requirement of such oath-taking by such members of their class.
Mantle is a student at the University of Texas. On March 22, 1967, he began employment in the library of the School of Law at Texas University. Subsequent to commencing his duties at the library, Mantle was informed by the personnel office of the university that as a condition of his employment it was necessary that he execute a loyalty oath prescribed by Article 6252-7.4
Mantle was given a list of organizations designated by the Attorney General of the United States as totalitarian, fascist, communist or subversive,5 asked to read the list and sign the oath. Upon discovering that an organization of which he was a member appeared on the list,6 Mantle was compelled to decline to execute the oath and was thereupon dismissed from the employment by the university.
By motion to intervene, Michael Kahn became a party plaintiff. Kahn was an assistant professor of psychology at Yale University in New Haven, Connecticut. Consummating a period of negotiations Kahn was offered, on April 5, 1967, the position of associate professor of psychology at the University of Texas. He seeks to enjoin the regents of that university from requiring of him the Article 6252-7 oath, which has been made a condition of his employment, for the reason that his constitutional rights of freedom of speech and association are threatened to be impaired by the oath requirement.
Jurisdiction of all parties plaintiff is predicated on 42 U.S.C.A. §§ 1983, 1984 and 28 U.S.C.A. §§ 1331, 1343, 2201, 2202, 2281 and 2284.
By their pleadings and by their oral arguments defendants Dallas Junior College and the University of Texas raise a number of issues peculiar to each of the respective plaintiffs which must be disposed of before a consideration of the substantive nature of the oath is undertaken. We turn to these issues.
Dallas County Junior College, hereinafter referred to as El Centro, was created by popular vote of the residents of Dallas County, Texas, in May, 1965, in accordance with the provisions of Article 2815h, Vernon's Ann.Texas Revised Civil Statutes.7 Under the provisions of Article 2815k, Vernon's Ann.Texas Revised Civil Statutes, the newly elected Board of Trustees began to organize academic departments. A music department was established, and the director thereof was commissioned to solicit the employment of qualified musicians to instruct students in the playing of various musical instruments. A list of 25 such individuals was submitted by the director to the trustees, all of whom were approved. Gilmore was on this list.
El Centro's employment of any one of the individuals on the list of qualified musicians was contingent upon a student registering for instruction on the respective instrument to be taught by that individual. One student registered for instruction on the tuba for the fall semester, September, 1966, to January, 1967, and Gilmore's services were engaged.
No written contract was consummated by Gilmore and El Centro; their agreement was wholly oral. Gilmore was to be paid $150 a semester in quarterly installments of $37.50 each.
In his reply to plaintiff's complaints the Attorney General of Texas, representing defendant Texas University, avers that Article 6252-7 did not apply to El Centro for the reason that the college had not at the time of Gilmore's dismissal received funds appropriated by the Texas Legislature.8 Presumably, in reliance on this pleading, and subsequent thereto, El Centro admitted that it had erroneously applied Article 6252-7 to Gilmore and tendered into the registry of the Court $150, representing the full salary Gilmore was to receive for the semester for which he had been retained to render his services.
El Centro defends against Gilmore's claims on three procedural grounds: (1) the oath, which under the terms of the statute did not apply to Gilmore, was erroneously required of him by the college and therefore he has no standing to attack the statute in a three-judge court, but must resort to a state court and seek damages; (2) any claim Gilmore had against the college is moot because he had no right to public employment; his services were wholly contingent upon a student's registering for tuba instruction, and the tender to the court of Gilmore's one semester's salary of $150 rectifies any harm done to him; and (3) Gilmore failed to exhaust his state remedies before entering federal court.
(1) Standing in a Three-Judge Court
Article 6252-7 is explicit in applying only to those individuals who receive state funds as part or all of their salary. Plaintiff Gilmore admits that El Centro was not in receipt of state funds to disburse to its instructors at the time he was dismissed. He nonetheless argues that the application to him of the statutory oath by the trustees of El Centro is sufficient to confer standing upon him to seek an injunction against the enforcement of Article 6252-7. Defendants cite to the court numerous authorities in support of the position that this court is without authority to interpret or construe the meaning of a state statute and urge us to...
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