Vogel v. Los Angeles County

• Decision Date: 21 December 1967
• Citation: 64 Cal.Rptr. 409,68 Cal.2d 18
• Court: California Supreme Court
• Parties: , 434 P.2d 961 Robert S. VOGEL, Plaintiff and Respondent, v. COUNTY OF LOS ANGELES et al., Defendants and Appellants. L.A. 29515.

Page 409

64 Cal.Rptr. 409

68 Cal.2d 18, 434 P.2d 961

Robert S. VOGEL, Plaintiff and Respondent, v.COUNTY OF LOS ANGELES et al., Defendants and Appellants.

L.A. 29515.

Supreme Court of California, in Bank.

Dec. 21, 1967.

Harold W. Kennedy and John D. Maharg, County Counsel, Robert C. Lynch, Assistant County Counsel, and Donald K. Byrne, Deputy County Counsel, for defendants and appellants.

A. L. Wirin, Fred Okrand and Laurence R. Sperber, Los Angeles, for plaintiff and respondent.

Albert M. Bendich, Berkeley, Coleman A. Blease, Sacramento, Richard Jennings, Robert M. O'Neil, Berkeley, Marshall W. Krause, San Francisco, and Paul N. Halvonik as amici curiae on behalf of plaintiff and respondent.

PETERS, Justice.

Defendants appeal, in this taxpayer's action, from a summary judgment enjoining them from expending public funds (Code Civ.Proc. § 526a), for administering or enforcing the second paragraph of the oath required of public employees by section 3 of article XX of the California Constitution.The trial court held that the second paragraph of the oath is invalid, and granted the injunction.We agree with this determination.

Section 3 of article XX of the California Constitution provides:

'Members of the Legislature, and all public officers and employees, executive, legislative, and judicial, except such inferior officers and employees as may be by law exempted, shall, before they enter upon the duties of their respective offices, take and subscribe the following oath or affirmation:

"I, .........., do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter.

"And I do further swear (or affirm) that I do not advocate, nor am I a member of any party or organization, political or otherwise, that now advocates the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means; that within the five years immediately preceding the taking of this oath (or affirmation) I have not been a member of any party or organization, political or otherwise, that advocated the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means except as follows: ..........(If no affiliations, write in the words 'No Exceptions') and that during such time as I hold the office of .......... (name of office) I will not advocate nor become a member of any party or organization, political or otherwise, that advocates the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means.'

'And no other oath, declaration, or test, shall be required as a qualification for any public office or employment.

"Public officer and employee' includes every officer and employee of the State, including the University of California, every county, city, city and county, district, and authority, including any department, division, bureau, board, commission, agency, or instrumentality of any of the foregoing.'

In 1952, this court in Pockman v. Leonard, 39 Cal.2d 676, 249 P.2d 267, upheld the validity of the substantially similar oath found in sections 3100--3109 of the Government Code, known commonly as the Levering Act.In that casethe petitioner claimed several violations of federal constitutional guarantees, and it was held that nearly all such claims were answered adversely to him by then recent decisions of the United States Supreme Court.The principal case relied upon was Adler v. Board of Education of the City of New York, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517.

Subsequent decisions of the United States Supreme Court, however, have established constitutional doctrines not recognized in Adler, and the holding in that case has since been rejected by the United States Supreme Court.(Keyishian v. Board of Regents of University of State of New York, 385 U.S. 589, 595, 87 S.Ct. 675, 17 L.Ed.2d 629.)Accordingly we must re-examine Pockman v. Leonard, supra, 39 Cal.2d 676, 249 P.2d 267, in the light of the recent decisions of this court and the United States Supreme Court.

It is now well settled that, although an individual can claim no constitutional right to obtain public employment or receive any other publicly conferred benefit, the government may not condition public employment or receipt of such benefit upon any terms that it may choose to impose, and that the power of government to withhold benefits from its citizens does not encompass a 'lesser' power to grant such benefits upon an arbitrary deprivation of constitutional rights.(Keyishian v. Board of Regents of University of State of New York, supra, 385 U.S. 589, 602, 87 S.Ct. 675;Sherbert v. Verner, 374 U.S. 398, 404--406, 83 S.Ct. 1790, 10 L.Ed.2d 965;Speiser v. Randall, 357 U.S. 513, 518--519, 78 S.Ct. 1332, 2 L.Ed.2d 1460;Bagley v. Washington Township Hospital Dist., 65 Cal.2d 499, 504, 55 Cal.Rptr. 401, 421 P.2d 409;Fort v. Civil Service Commission, 61 Cal.2d 331, 334, 38 Cal.Rptr. 625, 392 P.2d 385;Syrek v. California Unemployment Insurance Appeals Board, 54 Cal.2d 519, 532, 7 Cal.Rptr. 97, 354 P.2d 625;Danskin v. San Diego Unified School Dist., 28 Cal.2d 536, 545--546, 171 P.2d 885.)

When the government seeks to require a limitation of constitutional rights as a condition of public employment, it bears the heavy burden of demonstrating the practical necessity for the limitation.The conditions annexed to the publicly conferred benefit must reasonably tend to further the purposes of the government in granting the benefit, and the utility of imposing the conditions must manifestly outweigh the impairment of constitutional rights.(Sherbert v. Verner, supra, 374 U.S. 398, 406--409, 83 S.Ct. 1790;Bates v. City of Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 4 L.Ed.2d 480;Bagley v. Washington Township Hospital Dist., supra, 65 Cal.2d 499, 505--508, 55 Cal.Rptr. 401, 421 P.2d 409;Fort v. Civil Service Commission, supra, 61 Cal.2d 331, 337--338, 38 Cal.Rptr. 625, 392 P.2d 385.)

Even where a compelling state purpose is present, restrictions on the cherished freedom of association protected by the First Amendment and made applicable to the states by the Fourteenth Amendment must be drawn with narrow specificity.First Amendment freedoms are delicate and vulnerable and must be protected wherever possible.When government seeks to limit those freedoms on the basis of legitimate and substantial governmental purposes, such as eliminating subversives from the public service, those purposes cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.Precision of regulation is required so that the exercise of our most precious freedoms will not be unduly curtailed except to the extent necessitated by the legitimate governmental objective.(Keyishian v. Board of Regents of University of State of New York, supra, 385 U.S. 589, 602--603, 87 S.Ct. 675;Elfbrandt v. Russell, 384 U.S. 11, 15 et seq., 86 S.Ct. 1238, 16 L.Ed.2d 321;N.A.A.C.P. v. Button, 371 U.S. 415, 432--433, 83 S.Ct. 328, 9 L.Ed.2d 405;Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 5 L.Ed.2d 231;Bagley v. Washington Township Hospital Dist., supra, 65 Cal.2d 499, 506--509, 55 Cal.Rptr. 401, 421 P.2d 409;Fort v. Civil Service Commission, supra, 61 Cal.2d 331, 337--338, 38 Cal.Rptr. 625, 392 P.2d 385.)

Two recent decisions of the United States Supreme Court control this case.They make it clear that the oath required by the second paragraph of section 3 of article XX of the California Constitution is invalid because it bars persons from public employment for a type of association that may not be proscribed consistently with First Amendment rights.These cases determine that the paragraph is invalid.

In Elfbrandt v. Russell, supra, 384 U.S. 11, 86 S.Ct. 1238, the oath had been interpreted by the Supreme Court of Arizona to proscribe knowing and willful membership in the Communist Party or any other organization having for one of its purposes the overthrow of the government of Arizona or any of its political subdivisions where the employee had knowledge of the unlawful purpose.The United States Supreme Court reasoned that quasi-political parties or other groups may embrace both legal and illegal aims (Scales v. United States, 367 U.S. 203, 229, 81 S.Ct. 1469, 6 L.Ed.2d 782); that in such a situation there is a danger that one in sympathy with the lawful aims of the organization, but not intending to accomplish them by violence, might be punished for his lawful adherence to lawful and constitutionally protected purposes (Noto v. United States, 367 U.S. 290, 299--300, 81 S.Ct. 1517, 6 L.Ed.2d 836); and that, since nothing in the Arizona oath or its construction excluded association by one who does not subscribe to the organization's unlawful purpose (cf.Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992), the oath was invalid.(Elfbrandt v. Russell, supra, 384 U.S. at pp. 15--16, 86 S.Ct. 1238.)

The United States Supreme Court also pointed out that persons who join an organization but do not share in its unlawful activities pose no threat either as citizens or as public employees, that a law which applies to membership without the specific intent to further the illegal aims of the organization infringes unnecessarily on protected freedoms and rests on the doctrine of guilt by association, and that such a law cannot stand.(Elfbrandt v. Russell, supra, 384 U.S. at pp. 17--19, 86 S.Ct. 1238.)

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