Wolstenholme v. City of Oakland

• Decision Date: 24 September 1959
• Citation: 344 P.2d 53
• Court: California Court of Appeals Court of Appeals
• Parties: Rebecca P. WOLSTENHOLME, Petitioner and Appellant, v. CITY OF OAKLAND, a municipal corporation, County of Alameda, State of California; The Board of Library Directors of the Oakland Free Library of the City of Oakland, County of Alameda, State of California; et al., Respondents. * Civ. 17875.

Page 53

344 P.2d 53

Rebecca P. WOLSTENHOLME, Petitioner and Appellant, v. CITY OF OAKLAND, a municipal corporation, County of Alameda, State of California; The Board of Library Directors of the Oakland Free Library of the City of Oakland, County of Alameda, State of California; et al., Respondents. ^*

Civ. 17875.

District Court of Appeal, First District, Division 1, California.

Sept. 24, 1959.

Rehearing Denied Oct. 22, 1959.

Hearing Granted Nov. 18, 1959.

Albert M. Bendich, Staff Counsel, American Civil Liberties Union of Northern California, San Francisco, for appellant.

John W. Collier, City Atty., Frederick M. Cunningham, Deputy City Atty., Oakland, for respondents.

BRAY, Presiding Justice.

Petitioner appeals from a judgment denying her petition for writ of mandate to restore her to her former position in respondents' library department.

Questions Presented.

1. Has the Legislature by the Luckel Act (Government Code, § 1028.1) precluded the imposition of local requirements?

2. Did petitioner satisfy the reuirements of that act?

3. Is the relief sought barred by laches?

Facts.

Petitioner was employed by respondent library board from January, 1949, until her discharge, November 9, 1954, from her position as senior librarian by the Board of Library Directors. The board operates and manages the Oakland Free Library and has jurisdiction over petitioner's employment.

On September 20 and 23, 1954, hearings were had before the board with respect to petitioner's qualifications and suitability for public service. On the 20th, petitioner appeared without counsel and the hearing was continued to the 23rd. At that time, petitioner was sworn and refused to answer directly, on the advice of counsel, the following questions:

1. 'Have you ever been a member of the Communist Party?'

2. 'Prior to September 10, 1948 were you a member of the Communist Party?'

3. 'Prior to September 10, 1948 have you ever attended any meeting of the Communnist Party?'

4. 'In 1944 and 1945 were you a member of the Communist and Political Association of Milwaukee, Wisconsin?'

5. 'In April of 1944 did you attend the Communist Party convention in the North Avenue Auditorium at Milwaukee, Wisconsin?'

6. 'Do you mean to imply from your testimony today that prior to September 10, 1948 you were a member of the Communist Party?'

7. 'Do you mean by your testimony here today that prior to September 10, 1948 you were a member of the Communist Party?'

8. 'Were you associated with the Communist Party, and not a member, since Septmber 10, 1948?'

9. 'Since September 10, 1948 have you been associated with members of the Communist Party?'

10. 'Since September 10, 1948 have you had personal knowledge of any activities of the Communist Party in the City of Oakland?'

11. 'Then I will ask you if within five years immediately preceding the 30th day of October, 1950, you were a member of the Communist Party?'

12. 'At any time within three years immediately prior to your employment by the City of Oakland were you ever a member of the Communist Party?'

13. 'I will ask you if at any time within the three years immediately prior to your employment by the City of Oakland, if you withdrew, resigned or quit the Communist Party for any reason?'

However, petitioner did testify that she was not presently a member of the Communist Party; that she had not been a knowing member since September 10, 1948; that since September 10, 1948, she had not knowingly attended any meetings of the Communist Party; that to the best of her knowledge there had never been any meetings of the Political Affairs Committee of the Communist Party or functionaries of the Party in her home; and that she does not personally advocate or have knowing membership in any organization advocating violent overthrow of the federal government. Mr. McNamara, Deputy City Attorney, then asked:

'Q. Were you associated with the Communist Party, and not a member, since September 10, 1948? * * *

'Mr. Speiser [counsel for petitioner]: I don't see how she can answer that question. I will advise her not to because I don't think the definition of the word 'associated' is such a clear one * * *

'Director Razeto [of the Library Board]: Counsel, I believe the question is improper--the Party is a group. Why don't you ask her if she associates with Communist leaders or persons rather than just the entity of the party? * * *

'Mr. McNamara: That may be. Q. For the purpose of the record, is your answer to my question that you refuse to answer on advice of counsel? A. On advice of counsel.

'Q. Since September 10, 1948 have you been associated with members of the Communist Party? A. On advice of counsel I refuse to answer.'

Petitioner then testified that since September 10, 1948, she had not knowingly performed any services for the Communist Party, but, on advice of counsel, refused to answer whether since September 10, 1948 she had personal knowledge of any Party activities in Oakland. The refusal followed Mr. Speiser's objection to the broadness of the question. Thereafter Director Brown of the Library Board asked:

'Q. Since September of 1948 have you been acquainted with anyone who has of your own knowledge--that you know was a member of the Communist Party? A. Of my own knowledge I have not been acquainted.

'Q. Have you been acquainted with anyone since September 1948 who had espoused the theorites of the Communist Party? A. The answer is an previous: not of my own knowledge.

'Q. * * * Have you ever had a conversation with a person since September 1948 who has advocated or indicated that membership in the Communist Party was a good thing? * * *

'The Witness: No sir.

'Director Brown: Q. Since September 10, 1948 have you ever had a serious discussion with anyone about membership in the Communist Party? A. No sir.

'Q. Since September of 1948 have you personally read any documents, books, pamphlets or anything that has been published by the Communist Party? * * *

'The Witness: To the best of my knowledge I have not.'

Thereafter, petitioner was discharged by resolution of the board on the basis of insubordination and misconduct in refusing to answer the thirteen questions specified above.

Petitioner appealed her dismissal to the

Petitioner appealed her dismissal to the Oakland Civil Service Board and a hearing time petitioner requested permission to answer and answered questions 8, 9 and 10 hereinbefore set out, stating that she had not knowingly since September 10, 1948, associated with the Communist Party or its members or had personal knowledge of its activities in Oakland, or elsewhere.

The Civil Service Board made findings of fact and conclusions of law, sustaining the action of the Board of Library Directors.

The trial court found the decision of the Civil Service Board to be supported by substantial evidence and that petitioner was guilty of insubordination and misconduct. The court also found that all the positions of senior librarian were filled by April 27, 1955; that this action was commenced June 6, 1956; that a vacancy for senior librarian existed June 6, 1956, until August 1, 1956; and that there would be one senior librarian retirement February 1, 1957, for which a replacement was performing the duties and would officially assume the position February 1, 1957. Petitioner was found to have delayed filing this action on counsel's advice that the United States Supreme Court's decision in Steinmetz v. California State Board of Education, 44 Cal.2d 816, 285 P.2d 617, would be determinative. Id., 351 U.S. 915, 76 S.Ct. 708, 100 L.Ed. 1448.

The court then held the Luckel Act does not occupy the field of investigation by local agencies, that petitioner has not been deprived of any constitutional right and that petitioner was guilty of laches and respondents prejudiced thereby.

1. The State Has Invaded the Field.

The Luckel Act provides: 'It shall be the duty of any public employee who may be subpenaed or ordered by the governing body of the state or local agency by which such employee is employed, to appear before such governing body * * * and to answer under oath a question or questions propounded by such governing body * * * or a member or counsel thereof, relating to: * * * (d) Questions as to present knowing memvership of such employee in the Communist Party or as to past knowing membership in the Communist Party at any time since October 3, 1945.' ¹ An employee failing to answer such questions shall be guilty of insubordination and shall be suspended and dismissed from his employment.

If the subject matter of statewide legislation is of statewide concern, local control is impliedly precluded. Eastlick v. City of los Angeles, 1947, 29 Cal.2d 661, 177 P.2d 558, 170 A.L.R. 225. In Tolman v. Underhill, 1952, 39 Cal.2d 708, 249 P.2d 280, it was held: 'There can be no question that the loyalty of teachers at the university is not merely a matter involving the internal affairs of that institution but is a subject of general statewide concern' (39 Cal.2d at page 712, 249 P.2d at page 282) and that a resolution of the Regents of the University requiring additional assurances of nonmembership in the Communist Party to that in the Levering Act, Gov.Code, §§ 3103-3109, oath was void because the state by that act had taken over the filed. In Bowen v. County of Los Angeles, 1952, 39 Cal.2d 714, 249 P.2d 285, the petitioner who had taken a loyalty oath required by the board of supervisors but refused to take the Levering Act Oath, contended that the provisions of the Los Angeles county charter controlled. The court stated that 'there can be no doubt that the loyalty of county employees is not exclusively a local affair but is a matter of general statewide concern,' (39 Cal.2d at page 715, 249 P.2d at page 286) and that therefore by the Levering Act the state had fully occupied the filed of legislation on the subject of loyalty oaths for public employees. It is significant that in both of the above case...