Cooper v. Henslee ( 1975 )

Thomas Harper, Special Justice.

This case is here on appeal from a decree of the Pulaski County Chancery Court. Appellees Frank B. Henslee and twenty-two other members of the Arkansas General Assembly filed their complaint in that Court against appellant Dr. Grant Cooper, Chancellor C. Robert Ross of the University of Arkansas at Little Rock (UALR) and the University’s Board of Trustees (collectively referred to as Ross), and Mrs. Nancy Hall, State Treasurer, seeking to enjoin Mrs. Hall and Ross from disbursing any state funds for the payment of any salary to appellant Cooper, an assistant professor of history at UALR, and seek-¡ng a mandatory injunction ordering Ross to terminate appellant Cooper’s employment in any capacity at UALR.

Appellees alleged that appellant Cooper had (1) violated the provisions of Section 1 of the Acts of Arkansas of 1941 (Ark. Stats. 41-4111) and (2) that because Cooper was an avowed member of the Progressive Labor Party (PLP), an affiliate of the Communist Party, he was ineligible for State employment because of the provisions of Section 3(c) of said Act [Ark. Stats. 41-4113(c)}.

After preliminary pleadings and procedure not particularly relevant here, during which appellees abandoned their prayer for the mandatory injunction to terminate Cooper’s employment, the issues were narrowed to (1) whether the trial court had jurisdiction to grant the relief sought and (2) whether these statutes are constitutionally valid.

Appellants Ross aligned themselves with appellant Cooper on the constitutional issues. The prosecuting attorney of Pulaski County, by an intervention, aligned himself with the appellees and further sought a declaratory judgment, asking the lower Court to declare that the involved statutes are constitutional.

After the issues were drawn the cause was heard by the trial court on oral evidence, following which a decree was entered finding both statutes to be constitutional, that appellant Cooper had violated Section 1 of Act 292 of 1941 (Ark. Stats. 41-4111) and was a member of PLP, “ a communistic organization”, which, as well as Cooper, believes in the necessity of the violent overthrow of the governments of Arkansas and the United States, that Cooper teaches from a communistic viewpoint, and that Cooper’s membership in PLP renders him ineligible for employment by the State of Arkansas. On these findings the lower Court dismissed the State Treasurer as a party to the action and enjoined the Chancellor of UALR and its trustees from paying appellant Cooper any salary from public funds in his capacity as an assistant professor at UALR. The decree, except to the extent of the findings noted above, did not enter the declaratory judgment sought by the intervening prosecuting attorney.

From that decree, appellants Cooper, Ross and the Trustees have appealed to this Court.

Appellant Cooper mainly contends (1) the Chancery Court lacked jurisdiction to grant the injunction and (2) that the statutes involved are unconstitutional because Ark. Stats. 41-4113(c) is a bill of attainder and violates the First and Fourteenth Amendments of the Constitution of the United States, and (3) that both statutes are unconstitutional on their face and unconstitutional as applied to appellant Cooper. The appellants Ross generally adopt these contentions except as to jurisdiction.

Ark. Stats. 41-4111 reads:

“Subversive activities defined and prohibited. — (a) It shall be unlawful for any person; (1) to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or by the assassination of any officer of any such government; (2) with the intent to cause the overthrow or destruction of any government in the United States, to print, publish, edit, issue, circulate, sell, distribute, or publicly display any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence; (3) to organize or help to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any government in the United States by force or violence; or to be or become a member of, or affiliate with, any such society, group, or assembly of persons, knowing the purposes thereof, (b) For the purposes of this section, the term “government in the United States” means the government of the United States, or the government of this state. [Acts 1941, No. 292. §1, p. 754.]”

Ark. Stats. 41-4113 in its entirety reads:

“41-4113. Penalty for subversive activities — Ineligibility for employment. — (a) Any person who violates any of the provisions of this act shall be deemed guilty of a felony and, upon conviction thereof, be fined not more than ten thousand dollars [$10,000] or imprisoned for not more than ten [10] years, or both such fine and imprisonment, (b) No person convicted of violating any of the provisions of this act [§§41-4111 — 41-4113] shall, during the five years next following his conviction, be eligible for employment by the State of Arkansas, or by any department or agency thereof, (c) No person who is a member of a Nazi, Fascist or Communist society, or any organization affiliated with such societies, shall be eligible for employment by the State of Arkansas, or by any department, agency, institution, or municipality thereof.”

Subsection (c), supra, is that portion of this section under attack here.

The facts are not in dispute. At the time this action was commenced and tried below, appellant was employed by the State of Arkansas'as a member of the faculty of UALR. He admitted he was a member of the PLP, that he espoused its aims and principles, which included advocacy of revolutionary change of the government of the United States, by violence if necessary, which change is regarded as inevitable, although not within any specific time, except in the “future”. He admitted that he advocated these principles to his students, and that he taught from a communistic point of view.

We find it necessary to discuss only two of the issues raised by appellants.

Appellees’ complaint, as amended to eliminate the prayer for mandatory injunction, states a cause of action under the “illegal exaction” section of the Arkansas Constitution (Article 16, Section 13). It has long been held a court of equity has jurisdiction to enjoin payment of public funds in violation of law. Revis v. Harris, 217 Ark. 25, 228 S.W. 2d 624 (1950); Rose v. Brickhouse, 182 Ark. 1105, 34 S.W. 2d 472 (1931); Sitton v. Burnett, 216 Ark. 574, 226 S.W. 2d 544 (1950); Starnes v. Sadler, 237 Ark. 325, 372 S.W. 2d 585 (1963); Nelson v. Berry Petroleum Co., 242 Ark. 273, 413 S.W. 2d 46 (1967).

It should be kept in mind that while the trial court found Section 41-4111 was constitutional arid that appellant Cooper had violated its provisions, nevertheless there was no finding he had been convicted for such violation, and the record shows no conviction. The only relief granted appellees in the decree was to enjoin appellants Ross and the Trustees from paying any State funds to Cooper because of his party membership. Accordingly, we do not find it necessary to consider the question of the trial court’s jurisdiction to construe Section 41-4111, but only whether it had jurisdiction to grant this injunctive relief.

By applying the provisions of 41-4113(c) to the uncon-troverted proof in this case, payment of salary to the appellant Cooper would be an illegal exaction if 41-4113(c) can withstand constitutional scrutiny.

After a careful consideration of the decisions of the United States Supreme Court construing state statutes of similar, if not identical, purposes we conclude that Ark. Stats. Ann. 41-4113 Section (c) must be declared unconstitutional on its face as violative of the First Amendment to the United States Constitution.

In United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967), the U.S. Supreme Court held unconstitutional that portion of the Subversive Activities Control Act of 1950 which attempted to bar from any employment in any defense facility a person who was a member of a communist-action organization. The statute in that case was not dissimilar to 41-4113(c) in that it prevented membership and employment without regard to the relationship between the two. Chief Justice Warren, speaking for the Court, stated the problems caused by overbreadth at page 265-266 of Vol. 389 U. S.:

“[12-16] It has become axiomatic that ‘[precision of regulation must be the touchstone in an area so closely touching our most precious freedoms. ’ NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963); see Aptheker v. Secretary of State, 378 U.S. 500, 512-513, 84 S.Ct. 1659, 1667, 12 L.Ed.2d 992; Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960). Such precision is notably lacking in §5(a) (1) (D). That statute casts its net across a broad range of associational activities, indiscriminately trapping membership which can be constitutionally punished and membership which cannot be so proscribed. It is made irrelevant to the statute’s operation that an individual may be a passive or inactive member of a designated organization, that he may be unaware of the organization’s unlawful aims, or that he may disagree with those unlawful aims. It is also made irrelevant that an individual who is subject to the penalties of §5(a) (1) (D) may occupy a nonsensitive position in a defense facility. Thus §5 (a) (1) (D) contains the fatal defect of overbreadth because it seeks to bar employment both for association which may be proscribed and for association which may not be proscribed consistently with First Amendment rights. See Elfbrandt, v. Russell, 384 U. S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321; Aptheker v. Secretary of State, supra; . NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 84 S.Ct. 1302, 12 L.Ed. 2d 325 (1964); NAACPv. Button, supra. This the Constitution will not tolerate.”

41-4113(c), on the basis of Communist or similar party membership alone, bars an individual from employment by the State or any of its agencies, departments and institutions or by a municipality. The State no doubt has an interest in protecting certain areas of State government and sensitive positions of employment from those who might threaten the exercise of governmental functions, but 41-4113(c), as written, indiscriminately and without any precision whatsoever prevents, solely on the basis of association, any such party member from any employment by the State, its agencies, departments and institutions or by a municipality in the State.

Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967), reviewed provisions of administrative regulations and statutes pertaining specifically to teachers at State institutions in New York State which required as a condition of employment that these teachers certify in writing among other things that they had never been a member of the Communist party. Justice Brennan speaking for the majority stated at Page 606 of Vol. 385 U.S.:

“ [1] We proceed then to the question of the validity of the provisions of subdivision 1 of §105 and subdivision 2 of §3022, barring employment to members of listed organizations. Here again constitutional doctrine has developed since Adler. Mere knowing membership without a specific intent to further the unlawful aims of an organization is not a constitutionally adequate basis for exclusion from such positions as those held by appellants.

“[12] In Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321, we said, ‘Those who join an organization but do not share its unlawful purposes and who do not participate in its unlawful activities surely pose no threat, either as citizens or as public employees.’ Id., at 17, 86 S.Ct., at 1241. We there struck down a statutorily required oath binding the state employee not to become a member of the Communist Party with knowledge of its unlawful purpose, on threat of discharge and perjury prosecution if the oath were violated. We found that ‘[a]ny lingering doubt that proscription of mere knowing membership, without any showing of “specific intent,” would run afoul of the Constitution was set at rest by our decision in Aptheker v. Secretary of State, 378 U.S. 500, 84 S. Ct. 1659, 12 L.Ed.2d 992.' Elfbrandt v. Russell, supra, at 16, 86 S.Ct. at 1240. In Aptheker we held that Party membership, without knowledge of the Party’s unlawful purposes and specific, intent to further its unlawful aims, could not constitutionally warrant deprivation of the right to travel abroad. As we said in Schneiderman v. United States, 320 U.S. 118, 136, 63 S.Ct. 1333, 1342, 87 L.Ed. 1796, ‘[U]nder our traditions beliefs are personal and not a matter of mere association, and *** men in adhering to a political party or other organization *** do not subscribe unqualifiedly to all of its platforms or asserted principles.’ ‘A law which applies to membership without the “specific intent” to further the illegal aims of the organization infringes unnecessarily on protected freedoms. It rests on the doctrine of “guilt by association” which has no place here.’ Elfbrandt, supra, at 19, 86 S.Ct., at 1242. Thus mere Party membership, even with knowledge of the Party’s unlawful goals, cannot suffice to justify criminal punishment, see Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782; Noto v. United States, 367 U.S. 290, 81 S.Ct. 1517, 6 L.Ed.2d 836; Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356; nor may it warrant a finding of moral unfitness justifying disbarment. Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S. Ct. 752, 1 L.Ed.2d 796.”

In Cole v. Richardson, 405 U. S. 676, 92 S.Ct. 1332, 31 L.Ed.2d 593 (1972), Chief Justice Burger, speaking for the Court at page 680 of 405 U.S. stated the following principle with reference to loyalty oaths:

“We have made it clear that neither federal nor state government may condition employment on taking oaths that impinge on rights guaranteed by the First and Fourteenth Amendments respectively, as for example those relating to political beliefs. ***

“Employment may not be conditioned on an oath denying past, or abjuring future, associational activities within constitutional protection; such protected activities include membership in organizations having illegal purposes unless one knows of the purpose and shares a specific intent to promote the illegal purpose.”

It might be argued that appellant Cooper’s admitted knowledge of the aims and purposes of PLP and his belief in and advocacy of these aims and purposes would justify upholding Section 41-4113(c) in its prohibition of State employment of a member of PLP who knew, believed in and advocated its aims and principles. But, the statute does not go that far. It proscribes such employment because of mere party membership, and nothing more. This lack of precision and the narrow restriction to party membership only would bar from State employment not only any such party members who knew and advocated the aims and principles of the party, but also any such member of the party who was a member, and nothing more. The validity of the statute in the light of First Amendment rights must be viewed in the light of the effect of the statute on all persons, and not just the appellant Cooper.

Obviously, the philosophy of the Court has not changed during the last few years. See Sugarman v. Dougall, 413 U. S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973), a case involving aliens in civil service positions. It is totally inconsistent to invalidate a loyalty oath provision and allow to stand a statute which punishes a certain class, state employees, for mere membership in a political organization. The philosophy of the loyalty oath cases reinforces the strength of the First Amendment to the U. S. Constitution. See also Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969); Yates v. U.S., 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957); Noto v. U.S., 367 U.S. 290, 81 S.Ct. 1517, 6 L.Ed.2d 836 (1961).

This Court has no choice but to follow these decisions of the Court which is the final arbiter when constitutional interpretation is in dispute. To uphold the provisions of Ark. Stats. Ann. 41-4113(c) as protecting a valid state interest, i.e. teaching in a state institution the communist theory of government, would be to ignore the controlling authority on this issue. This Court cannot accept those arguments made by Henslee with reference to Cooper’s particular position and the interest of the state therein as applicable to justify affirming the constitutionality of a statute that has such a chilling effect on the exercise of valid First Amendment rights such as freedom of speech and freedom of association.

We are not unmindful of Adler v. Board of Education, 342 U.S. 485, 72 S. Ct. 380, 96 L.Ed. 517 (1952), and Beilan v. Board of Education of Philadelphia, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414 (1958), relied on by appellees.

However much one might wish to accept Adler as authority for upholding Sec. 41-4113(c), one must also face the reality that Adler has been so thoroughly eroded, if not overruled by the later cases of Keyishian, Rabel and others, that we cannot view it as an acceptable precedent to uphold this particular statute.

The issue before us is not whether appellant Cooper’s beliefs, his advocacy and teaching of PLP’s aims and principles or his PLP membership merit our approval. The sole relevant issue is whether his membership in PLP constitutionally disqualifies him from employment by the State. We must hold that it did not.

As an example of the overbreadth of the provisions of 41-4113(c) which require the discharge of a state employee regardless of the relationship of his employment to a valid state interest, a person operating a mowing machine for the State Highway Department, or an elevator operator in a State building, would be deprived of his First Amendment rights without any compelling state interest in his political philosophy.

The Constitution of the United States does not permit us to take a contrary view. Article 6, Clause 2, the Supremacy Clause, provides in part:

“This Constitution, and the Laws of the United States .... shall be the supreme law of the land; and the Judges in every State shall be bound thereby .... the Constitution or Laws of any State to the contrary notwithstanding. ”

The federal supremacy granted by this clause applies not only to the Constitution and laws of the United States, but to the interpretation of that Constitution and those laws by the United States Supreme Court. Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5, citing Chief Justice Marshall’s forceful exposition of this point in Marhury v. Madison, 1 Cranch 137. 177, 2 L.Ed. 60.

In view of our holding we find it unnecessary to reach any conclusion as to the validity of Ark. Stats. 41-4111 or any of the provisions of Ark. Stats. 41-4113 other than subsection (c). Subsection (a) provides for the punishment, upon conviction, for violation of the prohibitions of the statute and subsection (b) bars any person so convicted from State employment for a period of five years, but the record here shows no such conviction, thus eliminating any necessity to consider the validity of these subsections. Nor do we find it material whether this subsection is a bill of attainder, for in any event subsection (c) cannot be upheld.

The injunction of the lower court was issued on the basis of subsection (c), and since it must fall, we reverse the decree of the Chancery Court and remand with directions to dissolve the injunction against appellants Ross and the Trustees, to dismiss the complaint and intervention, and for other proceedings consistent with this opinion.

The writer is authorized to state that Justices George Rose Smith, Brown and Jones join in this opinion and in the concurring opinion of Justice Fogleman.

The Chief Justice concurs in part and dissents in part.

Fogleman, George Rose Smith, Brown and Jones, JJ concur. Holt, J. disqualified.