Nelson v. County of Los Angeles
Opinion of the Court
delivered the opinion of the Court.
Petitioners, when employees of the County of Los Angeles, California, were subpoenaed by and appeared before a Subcommittee of the House Un-American Activities Committee, but refused to answer certain questions concerning subversion. Previously, each petitioner had been ordered by the County Board of Supervisors to answer any questions asked by the Subcommittee relating to his subversive activity, and § 1028.1 of the Government Code of the State of California
On April 6, 1956, Globe was served with a subpoena to appear before the Subcommittee at Los Angeles. On the same date, he was served with a copy of an order of the County Board of Supervisors, originally issued February 19, 1952, concerning appearances before the Subcommittee. This order provided, among other things, that it was the duty of any employee to appear before the Subcommittee when so ordered or subpoenaed, and to answer questions concerning subversion. The order specifically stated that any “employee who disobeys the declaration of this duty and order will be considered to have been insubordinate . . . and that such insubordination shall constitute grounds for discharge . ...”
We, therefore, reach Globe’s contention that his summary discharge was nevertheless arbitrary and unreasonable. In this regard he places his reliance on Slochower v. Board, of Education, 350 U. S. 551 (1956). However,
We conclude that the case is controlléd by Beilan v. Board of Education of Philadelphia, 357 U. S. 399 (1958), and Lerner v. Casey, 357 U. S. 468 (1958). It is not determinative that the interrogation here was by a federal body rather than a state one, as it was in those cases. Globe had been ordered by his employer as well as by California’s law to appear and answer questions before the federal Subcommittee. These mandates made no reference to Fifth Amendment privileges. If Globe had simply refused, without more, to answer the Subcommittee’s questions, we think that under the principles of Beilan and Lerner California could certainly have discharged him. The fact that he chose to place his refusal on a Fifth Amendment claim puts the matter in no different posture, for as in Lerner, supra, at 477, California did not employ that claim as the basis for drawing an inference of guilt. Nor do we think that this discharge
Nor do we believe that the remand on procedural grounds required in Vitarelli v. Seaton, 359 U. S. 535 (1959), has any bearing here. First, we did not re.ach the constitutional issues raised in that case. Next, Vitarelli was a Federal Department of Interior employee who “could have been summarily discharged by the Secretary at any time without the giving of a reason.” Id., at 539. The Court held, however, that, since Vitarelli was dismissed on the grounds of national security rather than by summary discharge, and his dismissal “fell substantially short of the requirements of the applicable departmental regulations,” it was “illegal and of no effect.” Id., at 545. But petitioner here raises no such point, and clearly asserts that “whether or not petitioner Globe was accorded a hearing is not the issue here.”
We do not pass upon petitioner's contention as to the Privileges and Immunities Clause of the Fourteenth Amendment, since it was neither raised in nor considered by the California courts. The judgments are.
Affirmed.
California Government Code, § 1028.1:
“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, or a committee or subcommittee thereof, or by a duly authorized committee of the Congress of the United States or of the Legislature of this State, or any subcommittee of any such*3 committee, to appear before such committee or subcommittee, and to answer under oath a question or questions propounded by such governing body, committee or subcommittee, or a member or counsel thereof, 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.
“(c) Past knowing membership at any time since October 3, 1945, 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 October 3, 1945.
“(e) Present personal advocacy by the employee of the support of a foreign government against the United States in the event of hostilities between said foreign government and the United States.
“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.”
This original order was the forerunner of § 1028.1 of the California Government Code, enacted in 1953, which with certain refinements embodied the requirements of the order into state law. It is against this section that petitioner levels his claims of unconstitutionality. See note 1, supra.
“19.07. Probationary Period Following First Appointment.
“An employee who has not yet completed his first probationary period may be discharged or reduced in accordance with Rule 19.09 by the appointing power by written notice, served on the employee and copy filed with the Commission, specifying the grounds and the particular facts on which the discharge or reduction is based. Such an employee shall be entitled to answer, explain, or deny the charges in writing within ten business days but shall not be entitled to a
“19.09. Consent of Commission.
“No consent need be secured to the discharge or reduction of a temporary or recurrent employee.”
It is' noteworthy that the California statute requires such information to be given before both state and federal bodies.
Nor does petitioner make any attack on the failure of California’s statute to afford temporary employees such as he an opportunity to explain his failure to answer questions. It will be noted that permanent employees are granted such a privilege.
Dissenting Opinion
dissenting.
Section 1028.1 of the California Code, as here applied, provides that any California public employee who refuses to incriminate himself when asked to do so by a Congressional Committee “shall be suspended and dismissed from his employment in the manner provided by law.” The Fifth Amendment, which is a part of the Bill of Rights, provides that no person shall be compelled to incriminate (“to be a witness against”) himself. The petitioner, Globe, an employee of the State of California, appeared before the House Un-American Activities Committee of the United States Congress and claimed this federal constitutional privilege. • California promptly discharged him, as the Court’s opinion says, for “insubordination and violation of § 1028.1 of the Code.” The “insubordination and violation” consisted exclusively of Globe’s refusal to testify before the Congressional Committee; a ground for his refusal was that his answers might incriminate him. It is beyond doubt that the State took Globe’s job away from him only because he claimed his privilege under the Federal Constitution.
The basic purpose of the Bill of Rights was to protect individual liberty against governmental procedures that the Framers thought should not be used. That great purpose can be completely frustrated by holdings like this. I would hold that no State can put any kind of penalty on any person for claiming a privilege authorized by the Federal Constitution. The Court’s holding to the contrary here does not bode well for individual liberty in America.
Dissenting Opinion
dissenting.
This is another in the series of cases involving discharges of state and local employees from their positions after they claim their constitutional privilege against self-incrimination before investigating committees. See Slochower v. Board of Higher Education, 350 U. S. 551;
California has commanded that its employees answer certain broad categories of questions when propounded to them by investigating bodies, including federal bodies such as the Subcommittee of the Un-American Activities Committee involved here. Cal. Government Code § 1028.1. Invocation of the privilege against self-incrimination before such a body, in response to questions of those sorts, is made a basis for discharge.
In Slochower, this Court had a substantially identical situation before it. There a local law which made a claim of the constitutional privilege “equivalent to a resignation” was struck down as violative of the Due Process Clause of the Fourteenth Amendment. Only one word is necessary to add here to the Court’s statement there of its reason for voiding the provision: “As interpreted and applied by the state courts, it operates to discharge every [temporary] . . . employee who invokes the Fifth Amendment. In practical effect the questions asked are taken as confessed and made the basis of the discharge. No consideration is given to such factors as the subject matter of the questions, remoteness of the period to which they are directed, or justification for exercise of the privilege. It matters not whether the plea resulted from mistake, inadvertence or legal advice conscientiously given, whether wisely or unwisely. The heavy hand of the statute falls alike on all who exercise their constitutional privilege, the full enjoyment of which every person is entitled to receive.” 350 U. S., at 558.
As applied, then, to temporary or probationary employees, the California statute contains the identical vice of automatic discharge for a Fifth Amendment plea made before another body, not concerned with investigating the “fitness” of the employee involved. It is sought here to equate Globe’s case with those of Beilan and Lerner. But in the latter cases the Court took the view that the state discharges were sustainable because the employees’ pleas of self-incrimination before local administrative agency investigations of their competence and reliability prevented those employing bodies from having an adequate record on which to reach an affirmative conclusion as to their competence and reliability. This failure to cooperate fully (styled lack of candor) within the framework of the employer’s own proceed-, ing to determine fitness, was said to be a constitutional basis for discharge. 357 U. S., at 405-408; 357 U. S., at 475-479; and see 357 U. S., at 410 (concurring opinion). But here there was not the vaguest semblance of any local administrative procedure designed to determine the fitness of Globe for further employment.
It is said that this case differs from Slochower because that case involved a determination, based on his invocation of the privilege, that the employee was guilty of substantive misconduct, while this one simply involves a case of “insubordination” in the employee’s failure to answer questions asked by the Congressional Committee which the employing agency has ordered be answered. In the first place, Slochower did not involve any finding by the New York authorities that the employee was guilty of the matters as to which he claimed the privilege. The claim of the privilege was treated by the State as equivalent to a resignation, 350 U. S., at 554, and it was only “in practical effect,” id., at 558, that the questions asked were taken as confessed;
The state court distinguished this case from Slochower on the grounds that Slochower was a state employee with tenure, but Globe was a temporary or probationary employee not entitled to a hearing on discharge. On this basis, it concluded that the requirement outlined by this Court in Slochower — that he could not be discharged ipso facto on his claim, of the privilege, but only after a more particularized inquiry administered by his employer — did not apply. 163 Cal. App. 2d, at 601-603, 329 P. 2d, at 975-976. But this Court has nothing to do with the civil service systems of the States, as such. And Globe does not here contend that he could not have been discharged without a hearing; but he does attack the
For these reasons the judgment as to Globe should be reversed.
The Court appears to treat the fact that the California statute is not in terms directed at the exercise of the- privilege against self-incrimination, but rather covers all refusals to answer, as a factor militating in favor of its validity. The Court seems to view the privilege againsc self-incrimination as a somewhat strange and singular basis on which to decline to answer questions put in an investigation; or at most as an individual private soldier in a large army of reasons that might commonly be given for declining to respond.
I am afraid I must view the matter more realistically. But even if the statute were taken as wholeheartedly at face value as the Court does, the consequence would not be that it was more reasonable, but rather that it was more arbitrary. It hardly avoids the rationale of this Court’s decision in the Slochower case if the State adds other constitutional privileges to the list, exercise of which results per se in discharge. Such a statute would be even the more undif-ferentiating and arbitrary in its basis for discharge than the one involved in Slochower: And of course the crowning extent of arbitrariness is exposed by the contention that the fact that discharge would have followed a refusal to answer predicated on no reason at all justifies discharge upon claim of a constitutional privilege. It would appear of the essence of arbitrariness for the State to lump together refusals to answer based on good reasons and those based
In Slochower it was said, “It is one thing for the city authorities themselves to inquire into Slochower’s fitness, but quite another for his discharge to be based entirely on events occurring before a federal committee whose inquiry was announced as not directed at 'the property, affairs, or government of the city, or . . . official conduct of city employees.’ ” 350 U. S., at 558. This distinction was asserted in Beilan and Lerner. 357 U. S„ at 408; 357 U. S., at 477.
Tlie opinion in the New York Court of Appeals also makes it quite clear that Slochower was not being discharged as guilty of the matters inquired about. Daniman v. Board of Education, 306 N. Y. 532, 538, 119 N. E. 2d 373, 377.
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