Syrek v. California Unemployment Ins. Appeals Bd.

• Citation: 54 Cal.2d 519,7 Cal.Rptr. 97,354 P.2d 625
• Court: United States State Supreme Court (California)
• Decision Date: 02 August 1960
• Parties: , 354 P.2d 625 Marlon R. SYREK, Jr., Appellant, v. CALIFORNIA UNEMPLOYMENT INSURANCE APPEALS BOARD et al., Respondents. S. F. 20422.

Page 97

7 Cal.Rptr. 97

54 Cal.2d 519, 354 P.2d 625

Marlon R. SYREK, Jr., Appellant, v. CALIFORNIA UNEMPLOYMENT INSURANCE APPEALS BOARD et al., Respondents.

S. F. 20422.

Supreme Court of California, In Bank.

Aug. 2, 1960.

Albert M. Bendich, San Francisco, for appellant.

Stanley Mosk, Atty. Gen., Irving H. Perluss and B. Abbott Goldberg, Asst. Attys. Gen., William L. Shaw and Herschel T. Elkins, Deputy Attys. Gen., for respondents.

J. Richard Glade, Sacramento, as amicus curiae on behalf of respondents.

PETERS, Justice.

Plaintiff, Marion R. Syrek, Jr., appeals from a judgment of the superior court denying his petition for a writ of mandate whereby he sought to compel the defendants, the Unemployment Insurance Appeals Board and its Director of Employment, to pay him certain unemployment insurance benefits that had been refused by defendants. The District Court of Appeal, First District, Division One, reversed the trial court. Because of the importance of the issue involved, and because the problem is one of first impression, a hearing was granted by this court. The single issue presented is whether plaintiff's conscientious objection to the loyalty oath, ¹ which California requires as a prerequisite to governmental employment, constitutes 'good cause' for refusing to apply for employment with a county agency, as that phrase is used in unemployment insurance laws. ² Stated another way, is a position with a governmental agency 'suitable employment,' the refusal of which will bar a conscientious objector from the benefits of the unemployment statutes?

'Good cause,' 'suitable employment,' and 'conscientious objection' are all matters which must be measured in light of the facts of the particular case. The following facts are of particular significance:

1. Although plaintiff refused to apply for employment with a governmental agency on the ground that he conscientiously objected to the loyalty oath required of all government employees, he willingly took the oath required of witnesses at all stages in the proceedings below, and testified without objection or claim of privilege;

2. In partial explanation of his objection to the loyalty oath, plaintiff pointed particularly to that portion which requires a governmental employee to aver that he never will, in the future, advocate the overthrow of the state or federal government by force or violence, and testified, in explanation of his belief, that the established government of the United States was overthrown by force and violence in 1776, and that circumstances might occur in the future whereby the government might again become a dictatorship, in which event it would be the duty of patriotic citizens to advocate force and violence; ³

3. No evidence was produced, and no claim has been made that plaintiff is disloyal, or that he has been connected or associated with any subversive person or organization.

It is our view that the opinion of the appellate court written by the Hon. Preston Devine and concurred in by Bray, P. J., and Tobriner, J., correctly disposed of all issues presented. We adopt that opinion as the opinion of this court. It reads as follows (2 Cal.Rptr. 41):

'Appellant, Marion R. Syrek, Jr., was denied a writ of mandate which he had sought for the purpose of compelling the payment to him of unemployment insurance benefits. He had been denied payment because he had declined to apply for a civil service position which was available. He had declined to apply for the civil service position chiefly because he objected to taking the loyalty oath which is required of all civil service employees.

'It is undisputed that Syrek diligently sought work in his trade as multilith operator elsewhere than in government positions. He applied for work with 12 corporations; he registered with several employment agencies; he was studying certain skills connected with his occupation at a trade school in the daytime, but was willing to shift his studies to the nighttime if he could get daytime employment.

'He registered on January 22, 1956, with the Department of Employment, but he left blank the place where willingness to apply for a civil service position could be checked. His willingness to seek work in several other ways he indicated by checking. On February 24, 1956, the Department of Employment referred him to the Alameda County Civil Service Commission, where there was available a permanent job as multilith operator at wages of $250 per month, which would increase to $264 in six months. It is conceded by the parties to this litigation that the position was compatible with appellant's abilities and, except for matters connected with declarations of loyalty, was acceptable. Appellant declined to make application for the position.

'His first statements were that he 'was prejudiced' and 'was allergic to civil service positions.' He stated his reasons as follows: (1) In a written statement to an interviewer for the Department of Employment, on March 1, 1956: 'I have declined to make application for a civil service job at Alameda County because all Civil Service jobs in this state require an applicant to answer questions involving membership in organizations and political activities. I do not recognize the right of any employer to ask these questions, and I have never answered them in the past. Since I cannot be hired without answering these questions I do not apply for Civil Service jobs'; (2) On March 9, 1956, a reviewing official of the department made a note at the bottom of the statement, 'reviewed and deemed correct. Claimant stated that under certain circumstances government should be overthrown, so will not apply for civil service job.'

'Meanwhile, on March 2, 1956, the department denied unemployment insurance benefits to Syrek. On March 8, 1956, he appealed to a referee, and declared of himself: 'He had good cause to refuse the referral. he is conscientiously opposed to an inquiry by the State into his political opinions and associations. In order to secure State or County employment, he must submit to such an inquiry. Consequently, he cannot accept public employment.'

'At a hearing before the referee for the Department of Employment, Division of Appeals, Syrek was asked what idea he was attempting to convey in his earlier statement about overthrow of the government and he replied: 'The specific opinion that the Levering Act requires is that a person must certify that he does not advocate the overthrow of the government of the United States or the State of California by force or violence, and that he has not done so in the past and will not so in the future. Now there are certain circumstances under which it is my belief that the government of the United States should be overthrown. Specifically, any time that the government turns into a dictatorship which can be done by legal means there have been occasions in American history in the past when the government of the United States has been overthrown by force and violence.

"Q. You don't mean the government of the United States, do you? A. The government that was in existence in 1776.

"Q. I see. A, And I think I certainly uphold that, and would recommend a similar course of action under similar circumstances in the future.

"Q. Do I get your statement correctly then that in the event of a dictatorship in the United States, if one were established, or in the case of tyrannical rule, that you advocate the violent overthrow of the government? A. Yes, sir, that is my opinion, and I advocate and I intend to advocate it in the future. As a result I cannot sign the loyalty oath.'

'Further, he testified, 'The main reason I refuse it is because of the loyalty oath, which all persons in civil service must sign.'

'The referee decided against Syrek's claim, giving in the 'reasons for decision,' the following conclusion: '(T)he claimant's rejection of the referral because of his aversion to signing a loyalty oath would not furnish him with good cause. * * *'

'The decision of the California Unemployment Insurance Appeals Board, which is the highest administrative tribunal in its field, adopted the statement of facts, reasons for decision, and decision of the referee as its own.

'The trial court, upon reviewing the transcript before the referee, found that Syrek had refused the referral on the ground that he refused to take or subscribe the loyalty oath required of all government employees, and concluded that the claimant had not been denied any substantial rights secured to him by law.

'There was no evidence in the record of any acts of Syrek's of a disloyal nature, no evidence of Communist affiliation, and no evidence of public or private statements on his part urging overthrow of the government.

'Whether he conceived the dictatorship which he envisaged as a possibility in this country as being fascism, nazism, communism, or any particular form of government we cannot tell. However, he did state that the dictatorship could be accomplished 'by legal means.' He was willing to take an an oath as witness and did take that oath, and did testify under that oath, that he could not conscientiously, under his convictions, take the loyalty oath.

'The original briefs of the parties and the brief of amicus curiae discussed chiefly the constitutionality of the manner of applying the provisions of the Unemployment Insurance Code, § 1 et seq., to petitioner's claim. It was, and is, the contention of petitioner, the appellant, that, although the applicable statutes are not in themselves unconstitutional, the particular application of the statutes, in requiring petitioner, as an applicant for unemployment insurance benefits, to seek employment which was conditioned on the taking of a loyalty oath to which he had conscientious objections, violates several constitutional rights. He contends that the procedure denies freedom of speech and of assembly, that it denies due process of law and equal protection, and...