Heckler v. Shepard

• Decision Date: 19 June 1965
• Docket Number: Civ. No. 2398.
• Parties: George HECKLER et al., Plaintiffs, v. Allan G. SHEPARD as Attorney General of the State of Idaho, et al., Defendants.
• Court: U.S. District Court — District of Idaho

243 F. Supp. 841

George HECKLER et al., Plaintiffs, v. Allan G. SHEPARD as Attorney General of the State of Idaho, et al., Defendants.

Civ. No. 2398.

United States District Court D. Idaho, E. D.

June 19, 1965.

Louis F. Racine, Jr., Pocatello, Idaho, for plaintiffs.

Allan G. Shepard, Atty. Gen. of Idaho, Boise, Idaho, Richard Weston, Asst. Atty. Gen. of Idaho, Boise, Idaho, for defendants.

Before KOELSCH, Circuit Judge, TAYLOR, Chief District Judge, and MATHES, District Judge.

PER CURIAM.

This is a class suit for declaratory and injunctive relief challenging the constitutional validity of Chapter 210 of the Idaho Session Laws of 1963. Federal-question jurisdiction under 28 U.S.C. § 1331 is invoked, as is jurisdiction under the Civil Rights Act. 28 U.S.C. § 1343 (3); 42 U.S.C. § 1983.

By Chapter 210 the Idaho Legislature amended § 59-401 of the Idaho Code, adding the italicized portions of the complete statute which now reads as follows:

"59-401. Form of oath — Loyalty oath.—

Before any public officer or employee elected or appointed to fill any office, created by the laws of the state of Idaho, enters upon the duties of his office, he must take and subscribe an oath, to be known as the official oath, which is as follows:

"I do solemnly swear (or affirm) that I will support the constitution of the United States, and the constitution and the laws of this state; that I will faithfully discharge all the duties of the office of ___________ ___________________________________ _________________________ according to the best of my ability.

"I, _______________________________, do further solemnly swear (or affirm) that I will support and defend the constitution of the United States and the constitution of the state of Idaho against all enemies, foreign or domestic; that I will bear true faith and allegiance to the constitution of the United States and the constitution of the state of Idaho; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter.

"And I do further swear (or affirm) that I do not advocate, nor am I a member of any party or organization, political or otherwise, that now advocates the overthrow of the government of the United States or of the state of Idaho by force or violence or other unlawful means; that within the five (5) years immediately preceding the taking of this oath (or affirmation) I have not been a member of any party or organization, political or otherwise, that advocates the overthrow of the government of the United States or of the state of Idaho by force or violence or other unlawful means except as follows:

"(If no affiliation, write in the words `No Exceptions') and that during such time as I hold the office of

I will not advocate nor become a member of any party or organization, political or otherwise, that advocates the overthrow of the government of the United States or of the state of Idaho by force or violence or other unlawful means. So help me God.

"And no other oath, declaration, or test, shall be required as a qualification for any public office or employment, except as otherwise provided by law.

"A failure or refusal to take and subscribe such oath shall make such person ineligible to hold such office or to receive compensation for the same.

"Public `officer' and `employee' includes every officer and employee of the state, University of Idaho, Idaho State College, every other college and every county, city, school district, and authority, including any department, division, bureau, board, commission, agency, or instrumentality of any of the foregoing." Idaho Code, § 59-401, as amended by ch. 210, Idaho Session Laws (1963).

Shortly following enactment of the 1963 amendments, the complaint herein was filed naming as plaintiffs more than one hundred persons, including both faculty and non-faculty personnel at the University of Idaho and Idaho State University, some of whom are alleged to be aliens; also several school principals and teachers of the Pocatello School District, an employee of the Idaho State Hospital, and others.

Joined as defendants are the Attorney General and the Secretary of State of Idaho, the Idaho State Board of Education, the Regents of the University of Idaho, the Presidents of the University of Idaho and of Idaho State University, and the Superintendent of the Pocatello School District.

Because the plaintiffs raise a substantial question as to whether § 59-401, as now amended, fails to meet the "due-process" requirements of the Fourteenth Amendment to the Federal Constitution, and seek to restrain the "execution and enforcement of such statute" upon the ground of claimed unconstitutionality, this three-judge Court was convened pursuant to the mandate of 28 U.S.C. §§ 2281 and 2284. Prior to trial of the merits, a preliminary injunction was issued upon application, restraining enforcement pendente lite of the statute as amended; and this injunction has since remained in force.

It does not appear from the evidence before us, even after hearing the case on the merits, that any of the plaintiffs have been injured by operation of the challenged statute, or that any of them would actually be injured by its enforcement; nevertheless, in view of controlling precedent, the standing of plaintiffs to have the constitutional issues adjudicated here and now is no longer open to question. See Cramp v. Board of Public Instruction, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961); cf.: Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1961), with Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964), and Dombrowski et al. v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). Consequently, as the cause has been presented, we cannot know what dismissal policies or hearing procedures might have been utilized if the statute had ever been executed. The Federal constitutional questions raised must of necessity, therefore, be considered as addressed solely to the validity of the so-called "loyalty-oath" statute on its face, without reference to how the test oath might have been applied by Idaho officials charged with its enforcement.

Confronting immediately, then, the constitutional issue we regard as dispositive, the crucial question may be phrased as follows: Would discharge of an individual under this statute, by making "such person ineligible to hold such office or to receive compensation for the same" for failure or refusal to take and subscribe the test oath, satisfy the due-process requirements of the Fourteenth Amendment? More specifically, is a hearing required; and, if so, is such hearing made available?

It should be noted at the outset that the complete statutory oath has several distinct aspects. First among these is the requirement to swear (or affirm) allegiance to the United States of America and to the State of Idaho. We do not understand that this allegiance aspect of the oath is challenged here by others than the plaintiffs who are aliens.

The next aspect of the mandatory oath is a disclaimer, calling upon the oath-taker to declare that he neither (1) personally advocates, nor (2) is presently a member of any "party or organization" which now advocates, the overthrow of the government of the United States or of the State of Idaho "by force or violence or other unlawful means". With respect to the personal-advocacy category, the oath further requires a covenant that, throughout the period of employment by the State, the employee will never personally advocate such unlawful overthrow.

While the statute declares ineligible to hold State employment any person who fails or refuses to swear or affirm that he does not presently belong in either category (1) or (2) above, the oath goes on to call for (3) a disclaimer of past membership, at any time during the preceding five years, in "any party or organization * * * that advocates the overthrow of the government * * * by force or violence or other unlawful means"; and further calls for affirmative disclosure of all exceptions. Although disclosure of past membership does not appear in so many words to require discharge, any employee who refuses to make the mandatory sworn disclosure is nonetheless declared to be "ineligible to hold such office or to receive compensation for the same". Clearly, then, failure or refusal to take and subscribe any part of the oath works in legal effect an immediate discharge.

Because different constitutional questions are presented by the discharge of one who refuses to disclaim personal advocacy, as contrasted to the discharge of one who refuses to disclose present or past membership in "any party or organization * * *", we shall treat these two hypothetical situations separately, even though the statute unquestionably requires that the oath be taken and subscribed in its entirety, and even though as a practical matter a State employee, who would not or could not embrace both, would almost surely refuse to take or subscribe the oath at all.

Turning first to general principles of the law governing discharge of public employees, we find that these have known continuing development in the courts, and have been articulated by the Supreme Court on a number of occasions. United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947), made it clear that the public servant has no right to work for the State or any public entity on his own terms; and, as the Court observed in Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517 (1952):

"Employees may work for the school system upon the reasonable terms laid down by the proper authorities of New York. If they do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere." 342 U.S. at 492, 72 S.Ct. at 385.

Subsequent elaboration suggests, however, that the public employee has...