Syrek v. California Unemployment Ins. Appeals Bd.
| Decision Date | 21 January 1960 |
| Citation | 2 Cal.Rptr. 40 |
| Parties | Marion R. SYREK, Jr., Petitioner and Appellant, v. CALIFORNIA UNEMPLOYMENT INSURANCE APPEALS BOARD, Harry W. Stewart, Director of Employment, Respondents. Civ. 18443. |
| Court | California Court of Appeals Court of Appeals |
Albert M. Bendich, Staff Counsel, American Civil Liberties Union of Northern California, San Francisco, for appellant.
Stanley Mosk, Atty. Gen., Iring Perluss and B. Abbott Goldberg, Asst. Attys. Gen., William L. Shaw and Herschel T. Elkins, Deputy Attys. Gen., for respondents.
J. Richard Glade, Sacramento, amicus curiae in support of respondents.
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 corporation; 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: ; (2) On March 9, 1956, a reviewing offical of the department made a note at the bottom of the statement,
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:
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:
'
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 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 that it converts the law into a bill of attainder and ex post facto law.
We thought it likely that the problem could be solved, and ought to be solved, upon an interpretation of the statutes without delving into constitutional questions. The power of a court to declare a statute unconstitutional is an ultimate power; its use should be avoided if a reasonable statutory construction makes the use unnecessary. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346, 56 S.Ct. 466, 80 L.Ed. 688; Estate of Johnson, 139 Cal. 532, 535, 73 P. 424. Although in this case it is the constitutionality of the application of the statutes, rather than the constitutionality of any statute itself, which is challenged, the reason for judicial abstention from deciding constitutional questions is at least as strong in this particular case. For it is not contended by appellant that he was singled out from others in an identical position with him, nor that there was procedural abuse in the case save that of the requirement of the oath. Therefore, for the court to decide that there was an unconstitutional administration of the law would be tantamount to declaring that if a statute were to require expressly that a loyalty oath be taken as a condition to receiving unemployment insurance benefits, the statute itself would be invalid. In recognition of the rule of judicial abstention from passing on constitutional issues, save in cases of necessity, we required additional briefs on the subject of the construction of the Unemployment Insurance Code.
We have come to the conclusion that denial of unemployment insurance benefits to appellant is not justified; first, because of the absence of any law requiring an applicant for such benefits to accept a position that is conditioned upon the taking of a loyalty oath or to forego the benefits; and second, because we regard the term 'good cause,' for declining employment, as the term is used in the code, as including conscientious objection to a required loyalty oath. The latter reason, in turn, is supported by considerations related to the public interest and to the individual's rights.
No law of this state requires a loyalty oath as a condition for receiving unemployment insurance benefits, and no law declares that an applicant must apply for a position conditioned on the taking of such an oath. The Constitution of California does not require an oath in...
To continue reading
Request your trial