Steinmetz v. California State Bd. of Ed.
| Decision Date | 05 July 1955 |
| Citation | 285 P.2d 617,44 Cal.2d 816 |
| Court | California Supreme Court |
| Parties | Harry C. STEINMETZ, Petitioner, v. CALIFORNIA STATE BOARD OF EDUCATION, Roy E. Simpson, as State Director ofEducation, California State Personnel Board, Repondents. Sac. 6530. |
Wirin, Rissman & Okrand, A. L. Wirin and Fred Okrand, Los Angeles, for petitioner.
Edmund G. Brown, Atty. Gen., and Richard L. Mayers, Deputy Atty. Gen., for respondents.
Petitioner was dismissed from his position as an associate professor at San Diego State College because of his refusal, at a hearing before the State Board of Education, to answer two questions as to whether he was or had been a member of the Communist Party, and he seeks a writ of mandate to compel his reinstatement.
The state board acted pursuant to section 1028.1 of the Government Code, which is part of a statute commonly known as the Luckel Act. Section 1028.1 provides that it shall be the duty of any public employee, when ordered to do so, to appear before the governing body of the state or local agency by which he is employed and to answer under oath questions relating to:
'(a) Present personal advocacy by the employee of the forceful or violent overthrow of the Government of the United States or of any state.
'(b) Present knowing membership in any organization now advocating the forceful or violent overthrow of the Government of the United States or of any state.
'(c) Past knowing membership at any time since September 10, 1948, in any organization which, to the knowledge of such employee, during the time of the employee's membership advocated the forceful or violent overthrow of the Government of the United States or of any state.
'(d) Questions as to present knowing membership of such employee in the Communist Party or as to past knowing membership in the Communist Party at any time since September 10, 1948.'
The section further provides that 'Any employee who fails or refuses to appear or to answer under oath on any ground whatsoever any such questions so propounded shall be guilty of insubordination and guilty of violating this section and shall be suspended and dismissed from his employment in the member provided by law.'
At the hearing petitioner was examined by William Blair, president of the State Board of Education, as follows:
'Mr. Blair: * * * Are you knowingly a member of the Communist Party?
'Dr. Steinmetz: Mr. Chairman. I am sorry, but I find it necessary to refuse to answer this question as I would if you asked me if I were a member of any other party because I do not believe that there is authority in the act under which you are proceeding for asking such a question.
'Mr. Blair: * * * Have you at any time since September 10, 1948, knowingly been a member of the Communist Party?
'Dr. Steinmetz: In all good conscience I must give you exactly the same answer now that I gave you a moment ago, sir.
'Mr. Blair: That is, that you decline to answer.
'Dr. Steinmetz: Yes, sir.
'Mr. Blair: * * * Do you know whether or not the Communist Party advocates the forceful or violent overthrow of the government of the United States or of any state?
* * *
* * *
'Dr. Steinmetz: Mr. Blair, I have no such knowledge.
* * *
* * *
'Mr. Blair: Have you at any time since September 10, 1948, to and including today, knowingly been a member of the Communist Party when, to your knowledge, it advocated the forceful or violent overthrow of the government of the United States or of any state?
'Dr. Steinmtz: Mr. Blair. I have in part answered this question when I disclaimed knowledge. I should like further to answer it by saying that I have never in my life, now, in the past, and so long as I would be a state employee, would never belong to an organization that advocated force and violence against the United States, this state, or any subdivision thereof. I took an oath, the Levering Act oath, and signed it honestly, * * *. (Here petitioner recited in substance, the Levering oath, Gov.Code, § 3103.)
'Mr. Blair: That was intended to be an answer to the question 'Have you at any time since September 10, 1948, to and including today, knowingly been a member of the Communist Party when to your knowledge it advocated the forceful or violent overthrow of the government of the United States or of any state?' What would be your answer directly to that question, Dr. Steinmetz?
'Dr. Steinmetz: Mr. Blair, in part I answered that when I disclaimed knowledge, and in further part I have just answered it by reaffirming the Levering Act oath.
'Mr. Blair: I have repeated the question and I would feel obliged to direct you to answer it 'yes' or 'no' or 'I refuse to answer.' After that you may explain your answer, if you have not already explained it.
* * *
* * *
'Dr. Steinmetz: May I say that I have answered a question with regard to membership by saying that I would not answer any question with regard to membership, and that was very straightforward, and I have answered a question with regard to knowledge by disclaiming that I had the knowledge, and I have answered a question with regard to advocacy with an emphatic 'No.'
'Mr. Blair: Your 'no' applies to what part of the question?
'Dr. Steinmetz: To my advocacy, and to my knowledge, and to membership with knowledge.
'Mr. Blair: These questions were all framed in the belief that they could be in all fairness answered 'yes' or 'no.'
'Dr. Steinmetz: You consider a question like that fair, Mr. Blair?
'Mr. Blair: It seems that it simply wishes to inquire whether you have knowingly been a member of the Communist Party when to your knowledge it advocated the forceful and violent overthrow of the government. Now can you answer that by you can answer that by 'yes' or 'no' or by refusal to answer it. If you take objection to the form of it you can refuse to answer.
'Dr. Steinmetz: Under protest in principle on account of my belief with my attorney that this is a duplicitous question, pressed as I feel I am, I answer it then 'no.'
'Mr. Blair: * * * Do you presently advocate the forceful or violent overthrow of the government of the United States or of the government of any state of the United States?
'Dr. Steinmetz: Mr. Blair, as a teacher and a free American, I trust, who distinguishes between incitement and advocacy, I like no question pertaining to advocacy, but I have already answered it 'no,' and therefore, of course, answer it the same way now.
'Mr. Blair: * * * Are you knowingly a member of any organization which to your knowledge now advocates the forceful or violent overthrow of the government of the United States or of the government of any state of the United States?
'Dr. Steinmetz: No, sir. * * *
* * *
* * *
'Mr. Blair: Have you at any time since September 10, 1948, knowingly been a member of any organization which to your then knowledge advocated during the time of your membership the forceful or violent overthrow of the government of the United States or of the government of any state of the United States?
* * *
* * *
'Dr. Steinmetz: * * * I should like to answer the last question with a very decided 'no' * * *.
The foregoing shows that, although petitioner answered questions asked under subdivisions (a), (b) and (c) of section 1028.1 relating to his personal advocacy of violent overthrow of the government and his membership in organizations advocating violent overthrow of the government, he refused to answer two questions asked under subdivision (d), namely, (1) 'Are you knowingly a member of the Communist Party?' and (2) 'Have you at any time since September 10, 1948, knowingly been a member of the Communist Party?' His discharge was based upon this refusal.
Petitioner argues that, in effect, he answered the questions as to whether he was knowingly a member of the Communist Party when, at a later point in the examination, he replied to the inquiry as to knowing membership in the party with knowledge of its objectives. However, he refused to answer inquiries which omitted the qualification of knowledge of the nature of the organization and were directed only to knowledge of membership. The word 'knowingly' as used in the questions which he declined to answer did not refer to knowledge of the aims of the party but merely to whether he knew that he was a member, and it is clear from the record that he so understood the word at the time he refused to answer. In a memorandum submitted to the board at the beginning of he hearing, petitioner stated, Petitioner also showed that he so understood the questions when he said, 'I have answered a question with regard to membership by saying that I would not answer any question with regard to membership * * * and I answered a question with regard to knowledge by disclaiming that I had the knowledge * * *.'
Section 1028.1, considered as a whole, shows on its face that the Legislature, in suing the words 'knowing membership,' was referring to a person's knowledge of his membership, rather than to his knowledge of the character of the organization. In subdivision (c), when the Legislature intended to specify knowledge of the nature of the organization, as well as knowledge of the fact of membership, it explicitly referred to 'knowing membership' in an organization which 'to the knowledge of such employee * * advocated' violent overthrow of the government. In the next subdivision, on the other hand, when the Legislature spoke of 'knowing membership' without mention of knowledge of advocacy, it obviously was referring...
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