Wilson v. City of Los Angeles

• Decision Date: 04 May 1960
• Citation: 4 Cal.Rptr. 489,351 P.2d 761,54 Cal.2d 61
• Court: California Supreme Court
• Parties: , 351 P.2d 761 Virginia WILSON, Petitioner, v. CITY OF LOS ANGELES et al., Respondents. L. A. 25651.

Page 489

4 Cal.Rptr. 489

54 Cal.2d 61, 351 P.2d 761

Virginia WILSON, Petitioner, v. CITY OF LOS ANGELES et al., Respondents.

L. A. 25651.

Supreme Court of California, In Bank.

May 4, 1960.

A. L. Wirin and Fred Okrand, Los Angeles, for petitioner.

Roger Arnebergh, City Atty., Bourke Jones, Asst. City Atty., Weldon Weber and Walter W. Carrington, Deputy City Attys., Los Angeles, for respondents.

WHITE, Justice.

Virginia Wilson petitions for a writ of mandate, seeking to compel the Board of Civil Service Commissioners of the City of Los Angeles, its members and general manager, to vacate an administrative determination that the petitioner lacks qualifications for two civil service positions by reason of her prior discharge from employment by the County of Los Angeles after she had refused to subscribe to a loyalty oath in 1948.

The petitioner made applications in 1958 and in 1959 to the Civil Service Commission of the City of Los Angeles for employment as 'senior Clerk' and as 'medical investigator,' respectively. Inquiry was made as to the petitioner's former employments and her reasons for terminating such employments. In written response thereto she stated in each application that she had been employed by the County of Los Angeles and that in 1948 she had been 'discharged for refusal to sign type of 'loyalty' oath in use by the County at said time.' Thereafter she received notices of and took written professional examinations for the positions for which she had applied. She prepared for and passed both examinations with high marks. She then appeared for an oral examination for the position of senior clerk at which time she stated that she had refused to sign the prior oath as a matter of principle, but that she was quite willing to sign the oath currently required of all public employees in the State of California. Const. art. XX, § 3. She stated further that she was not, and never had been a member of the Communist party, nor a communist. The petitioner was later given an oral examination for medical investigator. She was advised that she had passed both oral examinations, and that she had qualified for both positions. She has not received an appointment to either position.

On March 31, 1959, the petitioner was advised by the general manager of the commission that she was disqualified for appointment to either position by reason of the 'nature of the discharge from another governmental agency', reference being made to the petitioner's discharge from the County of Los Angeles in 1948. On appeal to the commission the ruling of the general manager was affirmed.

It appears that the circumstances of the petitioner's discharge in 1948 was before this court in Hirschman v. County of Los Angeles, 39 Cal.2d 698, 249 P.2d 287, 250 P.2d 145. Her objection to subscribing to the oath at that time appears to have been based upon her disinclination, for reasons of conscience, to disavow membership in particular organizations which, according to her knowledge, did not advocate the overthrow of the government of the United States by force and violence. We affirmed a judgment denying a writ of mandate seeking to compel the county civil service commission to reinstate the petitioner and other plaintiffs in that case to their employment, holding at page 702 of 39 Cal.2d. at page 289 of 249 P.2d that, 'public employees may properly be required to furnish information regarding their memberships in organizations which, to their knowledge, have advocated the overthrow of the government by force and violence.' See also Pockman v. Leonard, 39 Cal.2d 676, 249 P.2d 267.

The right which the petitioner seeks to preserve here that is, the right to public employment providing that such employment is available and that she meets all reasonable requirements is entitled to protection, at least against deprivation thereof by arbitrary means. In Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216, the Supreme Court held that the State of Oklahoma could not exclude public servants from employment for their refusal to take a loyaity oath disavowing membership in certain organizations regardless of such persons' knowledge of the activities of the organizations. The court stated at page 192 of 344 U.S., at page 219 of 73 S.Ct.: 'We need not pause to consider whether an abstract right to public employment exists. It is sufficient to say that constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory.' See also Board of Education of San Francisco Unified School District v. Mass, 47 Cal.2d 494, 498-499, 304 P.2d 1015. The question then arises whether the commission acted in an arbitrary or discriminatory manner in disqualifying the petitioner.

In instances in this state where courts have sustained requirements that those seeking to obtain or seeking to retain public employment or other public benefits are required to subscribe to a so-called loyalty oath they have uniformly done so on the rationale that the state or municipality has a right to inquire into the applicant's qualifications, and that loyalty has a direct bearing on the qualification necessary for the employment or other benefit under consideration. See Board of Education of San Francisco Unified School District v. Mass, supra, 47 Cal.2d 494, 304 P.2d 1015; Steinmetz v. California State Board of Education, 44 Cal.2d 816, 285 P.2d 617; Pockman v. Leonard, supra, 39 Cal.2d 676, 249 P.2d 267; Christal v. Police Commission, 33 Cal.app.2d 564, 92 P.2d 416; see also Garner v. Board of Public Works of City of Los Angeles, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317; Gerende v. Election Board, 341 U.S. 56, 71 S.Ct. 565, 95 L.Ed. 745. But where there is no rational and substantial connection between the nature of the investigation into loyalty and the qualification of the applicant an inquiry which requires that he disclose his political affiliations and beliefs constitutes an unreasonable and capricious infringement on the freedoms protected by the Fourteenth and First Amendments of the federal Constitution and article I, section 9 of the California Constitution. To predicate the granting or withholding of public benefits on such an inquiry has been held a denial of due process. Konigsberg v. State Bar, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810; Wieman v. Updegraff, supra, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216; Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460; First Unitarian Church of Los Angeles v. County of Los Angeles, 357 U.S. 545, 78 S.Ct. 1350, 2 L.Ed.2d 1484.

In the present case there appears to be no question that judging the petitioner on her presently demonstrated qualifications, that she is qualified in all respects. It is to be noted that it is not a change in the petitioner's views which makes her presently qualified insofar as the oath requirement is concerned, but rather a change in the nature of the oath itself which is a prerequisite to qualification. Thus, the question of her disqualification at an earlier date...