Hosack v. Smiley

• Decision Date: 04 December 1967
• Docket Number: Civ. A. No. 67-C-310.
• Citation: 276 F. Supp. 876
• Parties: Elizabeth Lewis HOSACK, Martha Dickinson, Donald E. King, Mallie Truman Harris, Thomas A. Stewart, Patricia Jones, Paul Edward Biagi, Ernest M. Urvater and Bertram Morris, Plaintiffs, v. Joseph R. SMILEY and the Regents of the University of Colorado, Defendants.
• Court: U.S. District Court — District of Colorado

276 F. Supp. 876

Elizabeth Lewis HOSACK, Martha Dickinson, Donald E. King, Mallie Truman Harris, Thomas A. Stewart, Patricia Jones, Paul Edward Biagi, Ernest M. Urvater and Bertram Morris, Plaintiffs, v. Joseph R. SMILEY and the Regents of the University of Colorado, Defendants.

Civ. A. No. 67-C-310.

United States District Court D. Colorado.

December 4, 1967.

William F. Reynard, Denver, Colo., and John D. Herron, American Civil Liberties Union, Denver, Colo., for plaintiffs.

John P. Holloway, Resident Counsel for the University of Colorado and Asst. Atty. Gen., Boulder, Colo., for defendants.

Before LEWIS, Circuit Judge, and LANGLEY and DOYLE, District Judges.

MEMORANDUM OPINION AND ORDER

DOYLE, District Judge.

The Plaintiffs herein, teachers and employees of the University of Colorado, seek injunctive relief against the enforcement of a University requirement that they take an oath to support the Constitution and laws of the United States and the Constitution and laws of the State of Colorado as a condition of their employment. The allegations are that the Plaintiffs are deprived of rights, privileges, and immunities of citizens of the United States secured by the Fourteenth Amendment, Constitution of the United States.

Jurisdiction exists by reason of 28 U.S.C. § 1343(3), and 42 U.S.C. § 1983. In addition to injunctive relief, Plaintiffs also demand a declaration of rights in accordance with 28 U.S.C. § 2201.

The Complaint alleges: (1) That the oath is unconstitutionally vague in violation of the due process clause of the Fourteenth Amendment; (2) That the oath infringes First Amendment freedom of expression contrary to the Fourteenth Amendment; (3) That the oath requirement is deficient in failing to provide hearing procedures for persons who refuse to take the oath; (4) That discrimination exists in the administration of the oath in that persons who took the old oath, which was declared invalid by this Court, are not required to take the new oath—the basis being that only parts of the old oath were condemned, and the part which is now embodied in the new oath remained.

The classes before the Court consist of both teachers and employees. Some had taken the old oath. Others had not taken the old oath and are refusing to take the new one.

The matter was heard by a three judge court convened pursuant to 28 U.S.C. § 2281. Briefs have been filed and the case stands submitted.

The old oath which was prescribed by the Colorado General Assembly, C.R.S. 1963 123-17-6 was struck down in our recent decision in Gallagher v. Smiley, D.C., 270 F.Supp. 86. In that case, speaking through Judge Chilson, we said:

"The Court concludes as a matter of law that the statute requiring the plaintiff to take the oath in question, when construed in the light of Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964) is violative of due process because the oath is unduly vague, uncertain and broad and that a permanent injunction should issue prohibiting the defendants from requiring the plaintiff to take it."

The oath there in question was more extensive than that now before us although it contained the present oath as well. The Regents promulgated the present oath in an effort to comply with the Gallagher decision. This oath simply provides:

"I solemnly swear or affirm that I will support the Constitution of the State of Colorado and of the United States of America and the laws of the State of Colorado and of the United States."

The Regents did not, however, require that all personnel take the new oath. Those who had taken the old oath were not required to take the new one. The reason for this would appear to be that the Regents considered the non-condemned part of the old oath as still standing.

I

Contrary to the contention of the Plaintiffs we hold that the oath in question is not vague and indefinite so as to be in violation of the Fourteenth Amendment. First of all, the act of the Regents in promulgating the oath is legislative. The Supreme Court has enunciated a test for determining whether a statute is unconstitutionally vague. Connally v. General Construction Co., 269 U.S. 385, at 391, 46 S.Ct. 126, 70 L.Ed. 322 and see also Cramp v. Board of Instruction of Orange County, 368 U.S. 278, 287, 82 S.Ct. 275, 280, 7 L.Ed.2d 285:

"* * * a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law."

The oath in question is plain, straightforward and unequivocal. A person taking it is not left in doubt as to his undertaking. The obligation assumed is one of simple recognition that ours is a government of laws and not of men. Such an oath was upheld in Knight v. Regents of the University of the State of New York, 269 F.Supp. 339, 341 (S.D. N.Y.1967) wherein it was said:

"The statutory language of support of the constitutional governments can be substantially equated to that allegiance which, by the common law, every citizen was understood to owe his sovereign."

We have considered the very recent decision of the Supreme Court in Whitehill v. Elkins, 389 U.S. 54, 88 S.Ct. 184, 19 L.Ed.2d 228. That case does not condemn loyalty oaths in general and does not bear on the issues in this case.

II

Nor does the oath have any tendency to curtail freedom of expression as guaranteed by the First Amendment (and incorporated in the Fourteenth). Recognition of and respect for law in no way prevents the right to dissent and question repugnant laws. Nor does it limit the right to seek through lawful means the repeal or amendment of state or federal laws with which the oath taker is in disagreement. Support for the constitutions and laws of the nation and state does not call for blind subservience. Such an extreme concept is not now nor has it ever been accepted.¹

The law applicable to legislators provides what seems to us to be a clear analogy. The Constitution Art. VI, Section 3 requires that they as well as executive and judicial officers must take an oath "to support this constitution." The Supreme Court in dictum at least has said that a legislator can be required to take an oath to support the Constitution of the United States. Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 349, 17 L.Ed. 2d 235. In this case the Supreme Court has indicated that on public issues at least, the freedom of expression of a legislator who is bound by the constitutional support oath is as broad as that of a private citizen who is not restricted by the constitutional oath.²

It is recognized, of course, that the courts are scrupulous in protecting the right of freedom of expression in the academic institution.³ But this right is no less important in legislative bodies where public debate "* * * uninhibited, robust, and wide-open * * *" New York Times v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) is an indispensable ingredient of our law making process.

So we hold that an oath to support the constitution and laws of the state and nation does not and can not run counter to First Amendment freedoms.

III

In support of their contention that the "old oath" was held invalid in part only and that the remainder retains vitality, Defendants argue that since this Court in Gallagher, supra, relied entirely on the decision of the Supreme Court in Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964) wherein the Supreme Court was concerned primarily with the expansive portions of the oath there in question, it was only the expansive parts which were condemned.

It is further argued that persons who subscribed to the old oath need not again swear to support the Constitutions and laws of the United States and of the State of Colorado. This position assumes that an oath, like a statute, is severable whereby the valid portion of it can be salvaged. We seriously question whether the severability doctrine can be applied in this manner. In any event the argument is in other respects invalid. The Supreme Court in Baggett voided the statutes which provided the underpinnings for the oath and in doing so the Court voided the oath in its entirety. Similarly this Court in Gallagher held the Colorado statute which prescribed that oath to be unconstitutional. The result is that the legislative oath became a nullity. Now we have a completely new oath which has been legislated by the Board of Regents. To hold that the old legislative oath retains some vitality so that those who took it are to be excused from taking the new one would be anomalous.

Moreover, great confusion would result from accepting the argument of Defendants. The oath has a personal quality. It is administered by confronting the oath-taker with the precise provisions of his undertaking. To now hold that he is bound by so much of that which he has taken as has not been held invalid would certainly create uncertainty and would threaten the vice of vagueness which we frequently encounter in the oath area. This problem is expressed by the Supreme Court in Baggett as follows:

"The uncertain meanings of the oaths require the oath-taker—teachers and public servants—to `steer far wider of the unlawful zone' * * * than if the boundaries of the forbidden areas were clearly marked. Those with a conscientious regard for what they solemnly swear or affirm, sensitive to the perils posed by the oath's indefinite language, avoid the risk of loss of employment, and perhaps profession, only by restricting their conduct to that which is unquestionably safe. Free speech may not be so inhibited." Baggett v. Bullitt, supra, 377 U.S. at 372, 84 S.Ct. at 1323. See also Keyishian v. Regents of the University of New York, supra, 385 U.S. at 684, 87 S.Ct. 675.

In view of the mentioned considerations, we must hold that the new oath which we have upheld be applied equally to all. To apply it to new employees...