Nostrand v. Little, 34451

• Decision Date: 20 April 1961
• Docket Number: No. 34451,34451
• Parties: Howard L. NOSTRAND and Max Savelle, Respondents, v. Herbert S. LITTLE, Harold S. Shefelman, Mrs. J. Herbert Gardner, Charles M. Harris, John L. King and Joseph Drumheller, as the Board of Regents of the University of Washington, Charles E. Odegaard and John J. O'Connell, Appellants.
• Court: Washington Supreme Court

Page 111

58 Wn.2d 111

361 P.2d 551

Howard L. NOSTRAND and Max Savelle, Respondents, v. Herbert S. LITTLE, Harold S. Shefelman, Mrs. J. Herbert Gardner, Charles M. Harris, John L. King and Joseph Drumheller, as the Board of Regents of the University of Washington, Charles E. Odegaard and John J. O'Connell, Appellants.

No. 34451.

Supreme Court of Washington, En Banc.

April 20, 1961.

Rehearing Denied June 8, 1961.

John J. O'Connell, Atty. Gen Herbert H. Fuller and Timothy R. Malone, Asst. Attys. Gen., for appellants on remand.

Solie M. Ringold, Francis Hoague, Seattle, for respondents on remand.

DONWORTH, Judge.

This case was originally decided by this court January 29, 1959, and was then entitled Nostrand v Balmer. Our decision is reported in 53 Wash.2d 460, 335 P.2d 10, to which reference is made for a preface to the present opinion.

Thereafter, the case was appealed to the Supreme Court of the United States and, after being argued and considered by that court, a per curiam opinion was filed May 2, 1960 (two justices dissenting), which is reported in 362 U.S. 474, 80 S.Ct. 840, 4 L.Ed.2d 890, 892.

The mandate of the Supreme Court received June 13, 1960, directed that our judgment, entered March 20, 1959, be vacated and the cause remanded for further proceedings not inconsistent with the per curiam opinion.

Accordingly, this court, by order entered June 17, 1960, vacated its judgment of March 20, 1959, and set the cause for further hearing en banc at its September, 1960, session for a consideration of the following issues:

1. Whether the plaintiffs have raised, either in the trial court or in this court, the claim that they should be afforded such hearing to explain or defend their refusal to take the oath; and

2. If such claim is properly before this court, whether the pertinent statutes of the state of Washington do or do not afford them such a hearing; and

3. If said statutes do not afford them such a hearing, whether plaintiffs are thereby denied due process of law under the constitution of the United States or the constitution of the state of Washington.

For convenience, we shall in this opinion refer to the plaintiffs Nostrand and Savelle as 'the professors,' and to the defendant state officers as 'the regents.'

At this hearing which was held September 21, 1960, counsel for the parties submitted briefs and presented oral arguments bearing on these issues.

Before considering the issues above referred to, we wish to refer to the per curiam opinion of the Supreme Court, in which the reasons for remanding the case to this court are stated.

We think that it will be helpful to have in mind the circumstances under which this case has been remanded to this court and, therefore, we quote the per curiam opinion in full (omitting only the reference to City of Seattle v. Ross, 1959, 54 Wash.2d 655, 344 P.2d 216, referred to below ¹):

'Washington requires every public employee to subscribe to an oath that he is 'not a subversive person or a member of the Communist Party or any subversive organization, foreign or otherwise, which engages in or advocates, abets, advises, or teaches the overthrow, destruction or alteration of the constitutional form of the government of the United States, or of the State of Washington, or of any political subdivision of either of them, by revolution, force or violence; * * *.' Refusal so to do 'on any grounds shall be cause for immediate termination of such employee's employment.'

'Appellants brought this declaratory judgment action claiming the Act to be violative of due process as well as other provisions of the Federal Constitution. One of the claims is that no hearing is afforded at which the employee can explain or defend his refusal to take the oath. The Supreme Court of Washington did not pass on this point. The Attorney General suggests in his brief that prior to any decision thereon here, 'the Supreme Court of Washington should be first given the opportunity to consider and pass upon' it. * * * In the light of these circumstances we cannot say how the Supreme Court of Washington would construe this statute on the hearing point.

'The declaratory nature of the case, the fact that the State's statute here under attack supplements previous statutory provisions raising questions concerning the applicability of the latter, and the principle of comity that should be afforded the State with regard to the interpretation of its own laws, bring us to the conclusion that we must remand the case for further consideration. Cf. Williams v. State of Georgia, 1955, 349 U.S. 375, 75 S.Ct. 814, 99 L.Ed. 1161.' ² (Italics ours.)

We have italicized certain words in the foregoing quotation because they have been erroneously construed by some news commentators as implying that this court did not do its full duty in the premises, and that the remand was made necessary because we had negligently failed to decide all the questions before us on the first hearing. We do not so read the per curiam decision, but, since the public has been so advised, we wish to take this opportunity to record the fact that (as will more fully appear below) we decided in our original opinion every justiciable issue which was then before us for consideration.

I.

In order to determine whether the constitutional question, which is the subject of the Supreme Court's opinion, was presented to us for decision at the original hearing in this court, it is necessary to review the record from the beginning.

The professors instituted this action under our declaratory judgments act (RCW 7.24.010 et seq.) by filing their complaint, in which they alleged that the action was brought

'* * * for the purpose of testing and determining the constitutionality of the Act, and the right of the defendants [the regents] to establish, enforce, carry out, and administer the provisions thereof through the insistence that plaintiffs and other state employees execute the oath, or otherwise.' (Paragraph 9 of the complaint.)

As to their status and rights as state employees to challenge the act, the professors alleged, in paragraphs 1 and 2, that:

'They are residents of King County, Washington, and are presently employed under contract as professors by the University of Washington, hereinafter called the University, an institution of higher learning owned and operated by the State of Washington, through the defendant Board of Regents.

'Through plaintiffs' employment contracts and pursuant to the terms of R.C.W. 28.76 and the rules and regulations of the University, plaintiffs have employment tenure and certain retirement benefits.'

The allegations wherein they raised federal questions are found in paragraphs 6 and 7, reading as follows:

'Pursuant to the Act, defendants have demanded that plaintiffs sign and swear to an oath, a copy of which is attached hereto, marked Exhibit, 'A'; and unless plaintiffs comply with such demands, their employment contracts with the University will be terminated by the defendants.

'The terms, provisions, and requirements of the Act and the oath are in violation of plaintiffs' rights, privileges and immunities under the Constitution of the United States in the following particulars:

'1. They violate the rights guaranteed under the First Amendment as made applicable to the States by the Fourteenth Amendment; '2. They violate the rights guaranteed under the Fifth Amendment as made applicable to the States by the Fourteenth Amendment;

'3. They deprive the plaintiffs of their rights without due process of law and deny them the equal protection of the laws as guaranteed by the Fourteenth Amendment; and

'4. They constitute a Bill of Attainder contrary to Article I, Section 10.'

The regents, in their answer, denied all the allegations of the complaint above referred to.

After the trial of the cause, the trial court entered certain findings of fact and conclusions of law. The findings which are pertinent to our present inquiry are:

'I. The plaintiffs are residents of King County, Washington, and are presently employed under contract as professors by the University of Washington, hereinafter called the University, an institution of higher learning owned and operated by the State of Washington, through the defendant Board of Regents.

'II. Through the plaintiffs' employment contracts and pursuant to statute and the rules and regulations of the University, plaintiffs have certain tenure rights and certain retirements benefits.

* * *

* * *

'V. All defendants are charged with the duty of establishing enforcing, carrying out and administering the provisions of Chapter 377, Laws of 1955, hereinafter called the Act, enacted by the Legislature of the State of Washington on March 9, 1955, approved by the Governor on March 21, 1955. The Act provides that each department head in the State of Washington must require that each employee under his charge state under oath whether or not he is a member of the Communist Party or other subversive organization, or upon failure to execute such oath, his employment be terminated.

'VI. Pursuant to the Act, defendants have demanded that plaintiffs sign and swear to an oath, a copy of which is attached to the complaint herein, marked Exhibit A, and have stated that unless the plaintiffs complied with such demands, their employment contracts with the University would be terminated by the defendants.'

The trial court, in its conclusions of law, held that the act was invalid because it violated certain provisions of the constitution of the state of Washington, and declared that the professors were entitled to the declaratory relief and the injunction prayed for. No federal question was decided by the trial court.

The final decree granted the following declaratory relief:

'It Is Hereby Ordered, Adjudged And Decreed that Chapter 377, Laws of 1955 violates the Constitution of the State of Washington, and is therefore void and of no effect; * * *.'

The decree...