Steinmetz v. California State Board of Education , 44 Cal. 2d 816 ( 1955 )

GIBSON, C. J.

Petitioner was dismissed from his position as an associate professor at San Diego State College because of his refusal, at a hearing before the State Board of Education, to answer two questions as to whether he was or had been a member of the Communist Party, and he seeks a writ of mandate to compel his reinstatement.

The state board acted pursuant to section 1028.1 of the Government Code, which is part of a statute commonly known as the Luckel Act. Section 1028.1 provides that it shall be the duty of any public employee, when ordered to do so, to appear before the governing body of the state or local agency by which he is employed and to answer under oath questions relating to:

“(a) Present personal advocacy by the employee of the forceful or violent overthrow of the Government of the United States or of any state.

“(b) Present knowing membership in any organization now advocating the forceful or violent overthrow of the Government of the United States or of any state.

“(e) Past knowing membership at any time since September 10, 1948, in any organization which, to the knowledge of such employee, during the time of the employee’s membership advocated the forceful or violent overthrow of the Government of the United States or of any state.

“(d) Questions as to present knowing membership of such employee in the Communist Party or as to past knowing membership in the Communist Party at any time since September 10, 1948.”

The section further provides that “Any employee who fails or refuses to appear or to answer under oath on any ground whatsoever any such questions so propounded shall be guilty of insubordination and guilty of violating this section and shall be suspended and dismissed from his employment in the manner provided by law.”

At the hearing petitioner was examined by William Blair, president of the State Board of Education, as follows:

Mb. Blaib : . . . Are you knowingly a member of the Communist Party?

Db. Steinmetz : Mr. Chairman. I am sorry, but I find it necessary to refuse to answer this question as I would if you asked me if I were a member of any other party because I do not believe that there is authority in the act under which you are proceeding for asking such a question.

Mb. Blaib: . . . Have you at any time since September 10, 1948, knowingly been a member of the Communist Party?

Db. Steinmetz : In all good conscience I must give you exactly the same answer now that I gave you a moment ago, sir.

Mb. Blaib : That is, that you decline to answer.

Db. Steinmetz: Yes, sir.

Me. Blaib: ... Do you know whether or not the Communist Party advocates the forceful or violent overthrow of the government of the United States or of any state?

Db. Steinmetz : Mr. Blair, I have no such knowledge.

Me. Blaib: Have you at any time since September 10, 1948, to and including today, knowingly been a member of the Communist Party when, to your knowledge, it advocated the forceful or violent overthrow of the government of the United States or of any state?

Dr. Steinmetz : Mr. Blair. I have in part answered this question when I disclaimed knowledge. I should like further to answer it by saying that I have never in my life, now, in the past, and so long as I would be a state employee, would never belong to an organization that advocated force and violence against the United States, this state, or any subdivision thereof. I took an oath, the Levering Act oath, and signed it honestly, . . . [Here petitioner recited in substance, the Levering oath, Gov. Code, § 3103.]

Mr. Blair: That was intended to be an answer to the question ‘1 Have you at any time since September 10, 1948, to and including today, knowingly been a member of the Communist Party when to your knowledge it advocated the forceful or violent overthrow of the government of the United States or of any state?” What would be your answer directly to that question, Dr. Steinmetz ?

Dr. Steinmetz: Mr. Blair, in part I answered that when I disclaimed knowledge, and in further part I have just answered it by reaffirming the Levering Act oath.

Mr. Blair: I have repeated the question and I would feel obliged to direct you to answer it “yes” or “no” or “I refuse to answer.” After that you may explain your answer, if you have not already explained it.

Dr. Steinmetz: May I say that I have answered a question with regard to membership by saying that I would not answer any question with regard to membership, and that was very straightforward, and I have answered a question with regard to knowledge by disclaiming that I had the knowledge, and I have answered a question with regard to advocacy with an emphatic “No.”

Mr. Blair: Your “no” applies to what part of the question?

Dr. Steinmetz: To my advocacy, and to my knowledge, and to membership with knowledge.

Mr. Blair: These questions were all framed in the belief that they could be in all fairness answered “yes” or “no.”

Dr. Steinmetz: You consider a question like that fair, Mr. Blair?

Mr. Blair: It seems that it simply wishes to inquire whether you have knowingly been a member of the Communist Party when to your knowledge it advocated the forceful and violent overthrow of the government. Now can you answer that by—you can answer that by “yes” or “no” or by refusal to answer it. If you take objection to the form of it you can refuse to answer.

Dr. Steinmetz: Under protest in principle on account of my belief with my attorney that this is a duplicitous question, pressed as I feel I am, I answer it then “no.”

Mr. Blair: ... Do you presently advocate the forceful or violent overthrow of the government of the United States or of the government of any state of the United States?

Dr. Steinmetz : Mr. Blair, as a teacher and a free American, I trust, who distinguishes between incitement and advocacy, I like no question pertaining to advocacy, but I have already answered it “no,” and therefore, of course, answer it the same way now.

Mr. Blair: . . . Are you knowingly a member of any organization which to your knowledge now advocates the forceful or violent overthrow of the government of the United States or of the government of any state of the United States ?

Dr. Steinmetz: No, sir. . . .

Mr. Blair: Have you at any time since September 10, 1948, knowingly been a member of any organization which to your then knowledge advocated during the time of your membership the forceful or violent overthrow of the government of the United States or of the government of any state of the United States?

Dr. Steinmetz: ... I should like to answer the last question with a very decided “no.”

The foregoing shows that, although petitioner answered questions asked under subdivisions (a), (b) and (c) of section 1028.1 relating to his personal advocacy of violent overthrow of the government and his membership in organizations advocating violent overthrow of the government, he refused to answer two questions asked under subdivision (d), namely, (1) “Are you knowingly a member of the Communist Party?” and (2) “Have you at any time since September 10, 1948, knowingly been a member of the Communist Party?” His discharge was based upon this refusal.

Petitioner argues that, in effect, he answered the questions as to whether he was knowingly a member of the Communist Party when, at a later point in the examination, he replied to the inquiry as to knowing membership in the party with knowledge of its objectives. However, he refused to answer inquiries which omitted the qualification of knowledge of the nature of the organization and were directed only to knowledge of membership. The word “knowingly” as used in the questions which he declined to answer did not refer to knowledge of the aims of the party but merely to whether he knew that he was a member, and it is clear from the record that he so understood the word at the time he refused to answer. In a memorandum submitted to the board at the beginning of the hearing, petitioner stated, “The use of the phrase ‘knowing membership in the Communist Party’ does not vitiate the vice of the statute. This is so because the Legislature has made it clear that the ‘knowing’ refers to knowing one is a member of the Party rather than as to the knowledge of the one being questioned as to the subversive nature of the Party. ... In other words, the statute plainly states that knowledge of the improper nature of the Communist Party is not an ingredient.” Petitioner also showed that he so understood the questions when he said, “I have answered a question with regard to membership by saying that I would not answer any question with regard to membership . . . and I answered a question with regard to knowledge by disclaiming that I had the knowledge. ...”

Section 1028.1, considered as a whole, shows on its face that the Legislature, in using the words “knowing membership,” was referring to a person’s knowledge of his membership, rather than to his knowledge of the character of the organization. In subdivision (e), when the Legislature intended to specify knowledge of the nature of the organization, as well as knowledge of the fact of membership, it explicitly referred to “knowing membership” in an organization which “to the knowledge of such employee . . . advocated” violent overthrow of the government. In the next subdivision, on the other hand, when the Legislature spoke of “knowing membership” without mention of knowledge of advocacy, it obviously was referring only to the fact of membership and not to knowledge of the nature of the organization. The choice of language was clearly deliberate, and in both subdivisions the words “knowing membership” were used in the same sense of knowledge of the fact of membership. It thus was proper, under the terms of subdivision (d), to question petitioner as to the fact of membership without reference to his knowledge of the character of the organization, and the questions on this point which he refused to answer were not covered by his denials that he was knowingly a member with knowledge of the nature of the party.

The statute under which petitioner was dismissed is not rendered invalid by the fact that it requires an employee to answer questions as to his membership in the Communist Party without regard to his knowledge of the nature of the party. Petitioner’s discharge was not because of membership in a proscribed organization but because of his refusal to answer questions as to whether or not he held membership in the Communist Party. A governmental body may, of course, make reasonable inquiries into matters pertaining to the fitness of its employees. Loyalty on the part of those in public employment is important to orderly and dependable government and is, therefore, relevant to fitness for such employment. (Pockman v. Leonard, 39 Cal.2d 676, 687 [249 P.2d 267].) An employee’s associates, as well as his conduct, are factors which may be considered by a state agency in determining his loyalty, and information on that subject may properly be elicited from him. (Adler v. Board of Education, 342 U.S. 485, 492-493 [72 S.Ct. 380, 96 L.Ed. 517, 27 A.L.R. 472]; Pockman v. Leonard, 39 Cal.2d 676, 685-687 [249 P.2d 267],)¹ In this connection, it has been held that a public employer may constitutionally require its employees to disclose any past or present membership in the Communist Party. (Garner v. Board of Public Works, 341 U.S. 716, 720 [71 S.Ct. 909, 95 L.Ed. 1317].)²

Statutes, such as the one involved here, which compel disclosure of information concerning a public employee’s membership in proscribed organizations, must be distinguished from those which provide for discharge or disqualification because of membership or refusal to take an oath denying membership. Under the latter type of statute, knowledge of the character of the organizations has been held essential (Wieman v. Updegraff, 344 U.S. 183 [73 S.Ct. 215, 97 L.Ed. 216]), and the legislation has been sustained only when it expressly or impliedly required such knowledge (Adler v. Board of Education, 342 U.S. 485, 494 [72 S.Ct. 380, 96 L.Ed. 517, 27 A.L.R.2d 472]; Garner v. Board of Public Works, 341 U.S. 716, 723-724 [71 S.Ct. 909, 95 L.Ed. 1317]; Gerende v. Baltimore City Board of Supervisors of Elections, 341 U.S. 56, 57 [71 S.Ct. 565, 95 L.Ed. 745]; Pockman v. Leonard, 39 Cal.2d 676, 685 [249 P.2d 267]; Hirschman v. County of Los Angeles, 39 Cal.2d 698, 702 [249 P.2d 287, 250 P.2d 145]). On the other hand, where the statutes provide merely for the disclosure of information, a requirement that the employee have knowledge of the nature of the organizations is not necessary. (See Garner v. Board of Public Works, 341 U.S. 716, 719-720 [71 S.Ct. 909, 95 L.Ed. 1317]; Adler v. Board of Education, 342 U.S. 485, 492-493 [72 S.Ct. 380, 27 A.L.R.2d 472].)

Petitioner’s refusal to answer was not based upon a claim of privilege against self-incrimination under the Fifth Amendment to the federal Constitution or section 13 of article I of the state Constitution, and, accordingly, he is precluded from relying on these constitutional provisions. It is settled that a witness is required to claim this privilege, that it is a purely personal privilege, solely for the benefit of the witness and that it is deemed waived unless invoked. (Rogers v. United States, 340 U.S. 367, 370-371 [71 S.Ct. 438, 95 L.Ed. 344, 19 A.L.R.2d 378].) Moreover, a person may properly be required to disclose information relevant to fitness and loyalty as a reasonable condition for obtaining or retaining public employment, even though the disclosure, under some circumstances, may amount to self-incrimination. (Pockman v. Leonard, 39 Cal.2d 676, 687 [249 P.2d 267]; Christal v. Police Com., 33 Cal.App.2d 564, 567 et seq. [92 P.2d 416]; cf. Garner v. Board of Public Works, 341 U.S. 716, 719-720 [71 S.Ct. 909, 95 L.Ed. 1317]; Adler v. Board of Education, 342 U.S. 485, 492-493 [72 S.Ct. 380, 96 L.Ed. 517, 27 A.L.R.2d 472].) A public employee, of course, cannot be forced to give an answer which may tend to incriminate him, but he may be required to choose between disclosing information and losing his employment.

Section 1028.1 does not violate the provision of the California Constitution which prohibits the passage of special laws in certain enumerated cases and “in all other cases where a general law can be made applicable.” (See Cal. Const., art. IV, § 25, subds. 1-33.) This section does not fall within any of the enumerated categories, and, insofar as any of its provisions are specific, no general law could have been made applicable. The Legislature, desiring to authorize inquiry as to membership in the Communist Party, could do so only by naming it. The designation of that organization was not arbitrary, but was reasonably related to the purpose of the legislation, since, as we have seen, information as to membership in the party is pertinent to fitness for public employment. The case of Communist Party v. Peek, 20 Cal.2d 536 [127 P.2d 889], is readily distinguishable. The statute there held invalid denied the Communist Party a place on the ballot, and regulation of elections is listed in the Constitution as one of the areas where a special law is prohibited. (Cal. Const., art. IV, § 25, subd. 11.) The basis of the decision in that case was that, in the absence of evidence, the court would be required to take- judicial notice of the subversive character of the Communist Party in order to uphold the statute as reasonable and that judicial notice to that effect could not be taken under the conditions then existing.

We need not determine whether there is any merit in petitioner’s attack upon another section of the Luckel Act which provides that it shall be sufficient cause for dismissal when a public employee advocates, or is knowingly a member of the Communist Party or of an organization which during the time of his membership he knows advocates, the overthrow of the government by force or violence. (Gov. Code, § 1028.) As we have seen, petitioner was not dismissed because of membership in any organization but because of his refusal to answer questions concerning matters which were relevant to his fitness for public employment.

The writ is denied.

Shenk, J., Edmonds, J., Traynor, J., Schauer, J., and Spence, J., concurred.

1 In the Adler case it was said: “One’s associates, past and present, as well as one’s conduct, may properly be considered in determining fitness and loyalty. From time immemorial, one’s reputation has been determined in part by the company he keeps. In the employment of officials and teachers of the school system, the state may very properly inquire into the company they keep, and we know of no rule, constitutional or otherwise, that prevents the state, when determining the fitness and loyalty of such persons, from considering the organizations and persons with whom they associate.”

2 In the Garner ease, after stating that the issue was whether a city “is constitutionally forbidden to require that its employees disclose their past or present membership in the Communist Party,” it was said: “We think that a municipal employer is not disabled because it is an agency of -the State from inquiring of its employees as to matters that may prove relevant to their fitness and suitability for the public service. Past conduct may well relate to present fitness; past loyalty may have a reasonable relationship to present and future trust. Both are commonly inquired into in determining fitness for both high and low positions in private industry and are not less relevant in public employment.”