A state court dismissed actions by civil service employees for
relief against enforcement of a "loyalty" program by a county,
without considering whether disclosure of information sought by a
prescribed affidavit would have penal consequences, and its
decision left in doubt whether it had passed on the validity under
the Fourteenth Amendment of sanctions (if there were any) for
failure to execute the affidavit. By a subsequent order, not
involved in the judgments now before this Court, the county
explicitly adopted sanctions for failure to execute affidavits, and
the validity of this latter order was attacked for the first time
in litigation still pending in the state courts. Since this latter
litigation may be decided in favor of the employees on grounds of
state law,
held: the constitutional questions raised in
these cases are not ripe for adjudication, and the writs of
certiorari heretofore granted are dismissed. Pp.
338 U. S.
328-333.
88 Cal. App. 2d
481, 199 P.2d 429, certiorari dismissed.
A state trial court dismissed suits by certain county employees
for relief against a so-called "loyalty test" prescribed by the
county's Board of Supervisors. The State District Court of Appeal
affirmed.
88 Cal. App. 2d
481, 199 P.2d 429. The State Supreme Court denied discretionary
review. This Court granted certiorari. 337 U.S. 929.
Writs of
certiorari dismissed, p.
338 U. S.
333.
Page 338 U. S. 328
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
In No. 49, twenty-five classified civil servants of the County
of Los Angeles brought an action in the Superior Court of that
County, and in No. 50, suit was brought by one such employee. The
respective plaintiffs sought relief against enforcement by the
County and its officials of what is colloquially known as a loyalty
test, and they did so for themselves and "in a representative
capacity . . . on behalf of 20,000 employees of Los Angeles County
similarly situated."
The plaintiffs, petitioners here, alleged that, on August 26,
1947, the Board of Supervisors of the County of Los Angeles adopted
as part of its "Loyalty Check" program the requirement that all
County employees execute a prescribed affidavit. It consisted of
four parts, fully set forth in the
338
U.S. 327app|>Appendix. By Part A, each employee is required
to support the Constitution of the United States, and the
Constitution and laws of the California; by Part B, he forswears
that, since December 7, 1941, he has been a member of any
organization advocating the
Page 338 U. S. 329
forcible overthrow of the Government of the United States or of
the California or of the County of Los Angeles, that he now
advocates such overthrow, or that he will in the future so advocate
directly or through an organization; by Part C, he is required to
list his aliases, and by Part D, he is asked to indicate whether he
has ever been "a member of, or directly or indirectly supported or
followed" any of an enumerated list of 145 organizations. Asserting
fear of penalizing consequences from the loyalty program, and
claiming that the law of California and the Constitution of the
United States barred coercive measures by the County to secure
obedience to the alleged affidavit requirement, petitioners brought
these actions. Demurrers to the complaints were sustained by the
Superior Court, and its judgments were affirmed by the District
Court of Appeal for the Second Appellate District.
88 Cal. App. 2d
481, 199 P.2d 429. After the Supreme Court of California denied
discretionary review, we brought the case here because, on the
showing then before us, serious questions seemed raised as to the
scope of a State's power to safeguard its security with due regard
for the liberty guaranteed by the Due Process Clause of the
Fourteenth Amendment. 337 U.S. 929. In view, however, of the
circumstances that became manifest after the cases came to
argument, we are precluded from reaching these constitutional
issues on their merits.
To begin with, the California decision under review does not
tell us unambiguously what compulsion, if any, the loyalty order of
August 26, 1947, carried. It is unequivocally clear that the lower
court refused to decide whether an employee who discloses his
so-called "subversive" activities or connections may, for that
reason, be discharged. It is not clear, however, whether, as
petitioners contend, the lower court meant to hold that the
Page 338 U. S. 330
Board of Supervisors may discharge an employee who refuses to
file an affidavit. [
Footnote 1]
This ambiguity renders so doubtful whether an issue under the
United States Constitution is before us that, at most, we would
exercise jurisdiction to obtain clarification by the State court.
See Honeyman v. Hanan, 300 U. S. 14;
Minnesota v. National Tea Co., 309 U.
S. 551;
State Tax Commission of Utah v. Van
Cott, 306 U. S. 511;
Herb v. Pitcairn, 324 U. S. 117. But
the circumstances which were called to our attention after the
cases reached us leave no doubt that the issues which lead us to
bring them here are not ripe for constitutional adjudication.
American Wood
Paper
Page 338 U. S. 331
Co. v. Heft, 8 Wall. 333;
Id. 131 U.S.Append.
xcii;
Commercial Cable Co. v. Burleson, 250 U.
S. 360.
As of July 20, 1948, nearly a year after the original loyalty
order, all but 104 of the 22,000 officers and employees of the
County had executed the prescribed affidavit. On that day, these
noncomplying employees were advised that the Board of Supervisors
had adopted an order providing (1) that, unless they had executed
Parts A, B, and C of the affidavit by July 26, they would be
discharged, and (2) that, unless they had executed Part D by that
time, they would be discharged
"if and when the loyalty test litigation now pending is finally
concluded with a determination that the County was justified in
requiring from its employees the information embodied in Paragraph
'D.' [
Footnote 2]"
This order was the first explicit announcement of sanctions by
the Board in furtherance of its loyalty program. By July 26, the
entire affidavit had been executed by all but 45 employees. Of
these, 29 had executed only Parts A, B, and C. Sixteen stood their
ground against any compliance. They invoked their administrative
remedy of review before the Civil Service Commission, which decided
against them. On June 24 of this year, these sixteen discharged
employees sought a writ of mandate from the Superior Court of the
County of Los Angeles to review the decision of the Civil Service
Commission, with a prayer for reinstatement and back pay. We are
advised that this litigation is now pending in the Superior Court.
The petitioners here, except one in No. 49, signed Parts A, B, and
C, and that petitioner is a party in the case before the Superior
Court.
Page 338 U. S. 332
From this it appears that the California courts have before
them, for the first time since the inception of the loyalty
program, an order which expressly threatens sanctions. These
sanctions are being challenged under State law, as well as under
the United States Constitution. For all we know, the California
courts may sustain these claims under local law. [
Footnote 3] The present cases are here from
an intermediate State appellate court because the State Supreme
Court did not deem the records before it to present issues
deserving of its discretionary review. The explicit sanctions of
the modified order may lead the Supreme Court of California to pass
on them should the litigation now pending in the lower courts go
against the contentions of these petitioners. It is relevant to
note that, when claims not unrelated to those now urged before us,
but based on State law, have come before the Supreme Court of
California, that tribunal has not been insensitive to them.
See
Communist Party v. Peek, 20 Cal. 2d
536, 127 P.2d 889;
James v. Marinship
Corp., 25 Cal. 2d
721, 155 P.2d 329. If their claims are recognized by the
California courts, petitioners would, of course, have no basis for
asserting denial of a Federal right. It will be time enough for the
petitioners to urge denial of a Federal right after the State
courts have definitively denied their claims under State law.
Due regard for our Federal system requires that this Court stay
its hand until the opportunities afforded by State courts have
exhausted claims of litigants under
Page 338 U. S. 333
State law. This is not what is invidiously called a technical
rule. The best teaching of this Court's experience admonishes us
not to entertain constitutional questions in advance of the
strictest necessity. Decent respect for California and its courts
demands that this Court wait until the State courts have spoken
with knowledge of the events brought to light for the first time at
the bar of this Court. Since the writs must be dismissed because
constitutional questions which brought these cases here are not
ripe for decision, all subsidiary questions fall.
See Rescue
Army v. Municipal Court, 331 U. S. 549,
331 U. S. 585;
Alabama State Fed. of Labor v. McAdory, 325 U.
S. 450;
CIO v. McAdory, 325 U.
S. 472.
Dismissed.
Mr. JUSTICE DOUGLAS took no part in the consideration or
disposition of these cases.
[
Footnote 1]
Clearly enough, some discharges or demotions of classified
employees by the Board of Supervisors are not final. The division
of authority between the Board and the County Civil Service
Commission is thus formulated by the lower court:
"In case the appointing power wishes to discharge a civil
service employee, the reasons therefor must be given, and
thereupon, if the employee so desires, he is entitled to a hearing
before the commission. If the commission finds that the reasons are
not sufficient, the discharge is void, despite anything the
appointing power can do about it."
"From what has so far been said, it is self-evident that neither
the Board nor its agents can discharge a civil service employee for
any cause that the Civil Service Commission finds insufficient.
Accordingly, if, in the view of the Board of Supervisors or its
agents as the appointing power, a civil service employee should be
discharged on the sole ground that the employee is 'subversive,'
the discharge or attempt to discharge on that ground is of no
effect if, on hearing, the commission holds otherwise."
"
* * * *"
"Whether the appointing power will or will not discharge
employees, as claimed by the plaintiffs, for causes of the
character enumerated, and whether the Civil Service Commission will
uphold such discharges, if any, on such causes, are not matters
upon which this Court may speculate or adjudicate at this time. . .
."
88 Cal. App. 2d
481, 493, 497, 199 P.2d 429, 436, 438-439.
See Los
Angeles County Charter, Art. IX, § 34(13) in Cal.Laws 1913, p.
1495, as amended, Cal.Stat. 1939, p. 3147.
[
Footnote 2]
The affidavit in the order of July 20, 1948, differed from the
affidavit in the original order only in that Part B was elucidated
to an extent not here relevant, and a few organizations listed in
Part D were omitted.
[
Footnote 3]
Article IX, § 41 of the Los Angeles Charter provides:
"No person in the classified service, or seeking admission
thereto, shall be appointed, reduced, or removed or in any way
favored or discriminated against because of his political or
religious opinions or affiliations."
Cal.Laws 1913, p. 1496. Article I, §§ 1, 4, 9, 10, 16, 21 of the
California Constitution contains safeguards against infringement of
the rights at which petitioners claim the loyalty investigation
strikes.
|
338
U.S. 327app|
APPENDIX
The affidavit prescribed by the Board of Supervisors of the
County of Los Angeles on August 26, 1947, as part of its "Loyalty
Check" program is as follows:
OATH AND AFFIDAVIT
"Department __________________."
"A. OATH OF OFFICE OR EMPLOYMENT"
"I, _________, do solemnly swear (or affirm) that I will support
and defend the Constitution of the United States and the
Constitution and laws of the California, against all enemies,
foreign and domestic; that I will bear true faith and allegiance to
the same; that I take this obligation freely, without any mental
reservation or purpose of evasion, and that I will well
Page 338 U. S. 334
and faithfully discharge the duties of the office or employment
on which I am about to enter or am now engaged. So Help Me
God."
"B. AFFIDAVIT RE SUBVERSIVE ACTIVITY"
"I do further swear (or affirm) that I do not advocate, nor am I
now a member, nor have I been since December 7, 1941, a member of
any political party or organization that advocates the overthrow of
the Government of the United States, or California, or County of
Los Angeles, by force or violence, except those specified as
follows: ____________, and that, during such time as I am an
officer or employee of the County of Los Angeles, I will not
advocate nor become a member of any political party or organization
that advocates the overthrow of the Government of the United
States, or California, or County of Los Angeles by force or
violence."
"C. AFFIDAVIT RE ALIASES"
"I do further swear (or affirm) that I have never used or been
known by any names other than those listed as follows:
_______________.."
"D. MEMBERSHIP IN ORGANIZATIONS"
"I do further swear (or affirm) that I have never been a member
of, or directly or indirectly supported or followed any of the
hereinafter listed organizations, except those which I indicate by
an X mark."
"
NAME"
Abraham Lincoln Brigade.
Academic and Civil Rights Council of California.
After School Clubs.
Agitprop.
American Artists Congress.
Page 338 U. S. 335
America for Americans.
American Comm'n for a Free Idonesia.
American Comm'n for Democracy and Intellectual Freedom.
American Comm'n for Protection of the Foreign Born.
American Comm'n to Save Refugees.
Americans Communications Assn.
American Communist Party.
American Council on Soviet Relations.
American Federation for Political Unity.
American Friends of the Chinese People.
American Guard.
American League Against War and Fascism.
American League for Peace and Democracy.
American League of Christian Women.
American Peace Mobilization.
American Russian Institute.
American Society for Technical Aid for Spain.
American Student Union.
American Veterans Comm'n
American Writers Congress.
American Youth Congress.
American Writers School.
American Youth for Democracy.
Anti-Axis Comm'n
Anti-Hearst Examiner.
Anti-Nazi League.
Anti-Nazi League of Hollywood.
Anti-ROTC Committee
Arcos Limited.
Artist Front to Win the War.
Arts Advisory Council.
Authors League.
Ballila.
Bay Area Council Against Discrimination.
California Conference for Democratic Action.
California Labor School.
California Youth Legislature.
Centro Anti-Communists.
China Aid Council of American League for Peace and
Democracy.
Citizens Committee for Better Education.
Citizens Comm'n for Defense of Mexican-American Youth.
Citizens Comm'n to Free Earl Browder.
Citizens Comm'n to Support Labors Right.
Citizens No Foreign Wars Coalition.
Civil Rights Congress.
Civil Rights Council for Northern California.
Comintern.
Comm'n for Boycott Against Japanese Aggression.
Comm'n for Defense of Mexican-American Youth.
Comm'n for Support of S.W. Garson.
Comm'n Protesting Attacks Against the Abraham Lincoln
Brigade.
Comm'n to Defend America by Keeping Out of War.
Communist International.
Page 338 U. S. 336
Communist Party's Little Theater.
Communist Workers School.
Communist Political Assn.
Conference for Democratic Action.
Consumers National Federation.
Contemporary Theater.
Co-ordinating Commission to Lift Embargo (To Spain).
Council for Pan American Democracy.
Cultural and Professional Projects Assn.
Congress of Mexican and Spanish-Mexican Peoples of U.S.
Daily Worker.
Democratic Youth Federation.
Elizabeth Curley Flynn Club.
Elizalde Anti-Discrimination Comm'n
Emergency Comm'n to Aid Spain.
Emergency Trade Union Conference to Aid Spanish Democracy.
Ex Combattanti Society.
Farmer Labor Party.
Federation of Architects, Engineers, Chemists and
Technicians.
Field Workers School.
First Congress of Mexican and Spanish-American U.S.
Friends of Soviet Russia.
Friends of Soviet Union.
German-American Bund.
Greater New York Emergency Conference on Inalienable Rights.
Harry Bridges Defense Commn.
Hold the Price Line Commn.
Hollywood Anti Nazi League.
Hollywood Cultural Commission.
Hollywood Community Radio Group.
Hollywood Independent Citizens Comm'n of Arts, Sciences and
Professions.
Hollywood League for Democratic Action.
Hollywood Theater Alliance.
Hollywood Writers Mobilization.
Humanist Society of Friends.
Independent Citizens Comm'n of Arts, Sciences and
Professions.
International Labor Defense.
International Red Aid.
International Workers Order.
Jewish Peoples Committee.
John Reed Clubs.
Joint Committee for Trade Union Rights.
Joint Anti-Fascists Refugee Committee.
League Against War and Fascism.
League for Democratic Action.
League for Peace and Democracy.
League for American Writers.
League for Struggle for Negro Rights.
League of Women Shoppers.
League to Save America First.
Los Angeles County Political Commission.
Los Angeles County Trade Union Commission.
Mooney Defense Commission.
Page 338 U. S. 337
Marine Cooks and Stewards Union.
Maritime Federation of the Pacific.
Mobilization for Democracy.
Motion Picture Cooperative Buyers Guild.
Motion Picture Democratic Committee.
National Citizens Political Action Committee.
National Committee to Abolish the Poll Tax.
National Council on Soviet American Friendship.
National Emergency Conference.
National Federation for Constitutional Liberties.
National Negro Women's Council.
National Negro Congress.
National Students League.
New Masses.
New Theater League.
North American Commission to Aid Spanish Democracy.
Pen and Hammer Club.
Peoples Council of America.
Peoples Front.
Progressive Comm'n to Rebuild the American Labor Party.
Refugee Scholarship and Peace Comm'n
Second Annual California Model Legislature.
Simon J. Lubin Society.
Social Problems Club.
Spanish Relief Committee.
Student Rights Assn.
United Farmers League.
United Federal Workers.
Western Workers.
Workers Alliance.
World Committee Against War.
Workers School.
Young Communist League.
The Young Pioneers.