# Nelson v. County of Los Angeles/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Brennan
United States Supreme Court
362 U.S. 1
Nelson v. County of Los Angeles
Argued: Jan. 31, 1960. --- Decided: Feb 29, 1960
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 made it the duty of any public employee to give testimony relating to such activity on pain of discharge 'in the manner provided by law.' Thereafter the County discharged petitioners on the ground of insubordination and violation of § 1028.1 of the Code. Nelson, a permanent social worker employed by the County's Department of Charities, was, upon his request, given a Civil Service Commission hearing which resulted in a confirmation of his discharge. Globe was a temporary employee of the same department and was denied a hearing on his discharge on the ground that, as such, he was not entitled to a hearing under the Civil Service Rules adopted pursuant to the County Charter. Petitioners then filed these petitions for mandates seeking reinstatement, contending that the California statute and their discharges violated the Due Process Clause of the Fourteenth Amendment. Nelson's discharge was affirmed by the District Court of Appeal, 163 Cal.App.2d 607, 329 P.2d 978, and Globe's summary dismissal was likewise affirmed, 163 Cal.App.2d 595, 329 P.2d 971. A petition for review in each of the cases was denied without opinion by the Supreme Court of California, three judges dissenting. 163 Cal.App.2d 614, 329 P.2d 983; 163 Cal.App.2d 606, 329 P.2d 978. We granted certiorari. 360 U.S. 928, 79 S.Ct. 1455, 3 L.Ed.2d 1543. The judgment in Nelson's case is affirmed by an equally divided Court and will not be discussed. We conclude that Globe's dismissal was valid.
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 * * *.' At the appointed time, Globe appeared before the Subcommittee and was interrogated by its counsel concerning his familiarity with the John Reid Club. He claimed that this was a matter which was entirely his 'own business,' and, upon being pressed for an answer, he stated that the question was 'completely out of line as far as my rights as a citizen are concerned, (and) I refuse to answer this question under the First and Fifth Amendments of the Constitution of the United States.' On the same grounds he refused to answer further questions concerning the Club, including one relating to his own membership. Upon being asked if he had observed any Communist activities on the part of members of the Club, Globe refused to answer, and suggested to committee counsel 'that you get one of your trained seals up here and ask them.' He refused to testify whether he was 'a member of the Communist Party now' 'on the same grounds' and 'as previously stated for previous reasons.' On May 2, by letter, Globe was discharged, 'without further notice,' on 'the grounds that (he had) been guilty of insubordination and of violation of Section 1028.1 of the Government Code of the State of California * * *.' The letter recited the fact that Globe had been served with a copy of the Board order relating to his 'duty to testify as a County employee * * * before said committee' and that, although appearing as directed, he had refused to answer the question, 'Are you a member of the Communist Party now?' Thereafter Globe requested a hearing before the Los Angeles County Civil Service Commission, but it found that, as a temporary employee, he was not entitled to a hearing under the Civil Service Rules. This the petitioner does not dispute.
However, Globe contends that, despite his temporary status, his summary discharge was arbitrary and unreasonable and, therefore, violative of due process. He reasons that his discharge was based on his invocation before the Subcommittee of his rights under the First and Fifth Amendments. But the record does not support even an inference in this regard, and both the order and the statute upon which the discharge was based avoided it. In fact, California's court held to the contrary, saying, 'At no time has the cause of petitioner's discharge been alleged to be anything but insubordination and a violation of section 1028.1, nor indeed under the record before us could it be.' 163 Cal.App.2d at page 599, 329 P.2d at page 974. Moreover, this finding is buttressed by the language of the order and of California's statute. Both require the employee to answer any interrogation in the field outlined. Failure to answer 'on any ground whatsoever any such questions' renders the employee 'guilty of insubordination' and requires that he 'be suspended and dismissed from his employment in the manner provided by law.' California law in this regard, as declared by its court, is that Globe 'has no vested right to county employment and may therefore be discharged summarily.' We take this interpretation of California law as binding upon us.
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 Higher Education, 1956, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692. However, the New York statute under which Slochower was discharged specifically operated 'to discharge every city employee who invokes the Fifth Amendment. In practical effect the questions asked are taken as confessed and made the basis of the discharge.' Id., 350 U.S. at page 558, 76 S.Ct. at page 641. This 'built-in' inference of guilt, derived solely from a Fifth Amendment claim, we held to be arbitrary and unreasonable. But the test here, rather than being the invocation of any constitutional privilege, is the failure of the employee to answer. California has not predicated discharge on any 'built-in' inference of guilt in its statute, but solely on employee insubordination for failure to give information which we have held that the State has a legitimate interest in securing. See Garner v. Board of Public Works of City of Los Angeles, 1951, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317; Adler v. Board of Education, 1952, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517. Moreover it must be remembered that here unlike Slochower-the Board had specifically ordered its employees to appear and answer.
We conclude that the case is controlled by Beilan v. Board of Public Education, School Dist. of Philadelphia, 1958, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414, and Lerner v. Casey, 1958, 357 U.S. 468, 78 S.Ct. 1311, 2 L.Ed.2d 1423. 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, 357 U.S. at page 477, 78 S.Ct. at page 1316, California did not employ that claim as the basis for drawing an inference of guilt. Nor do we think that this discharge is vitiated by any deterrent effect that California's law might have had on Globe's exercise of his federal claim of privilege. The State may nevertheless legitimately predicate discharge on refusal to give information touching on the field of security. See Garner and Adler, supra. Likewise, we cannot say as a matter of due process that the State's choice of securing such information by means of testimony before a federal body can be denied. Finally, we do not believe that California's grounds for discharge constituted an arbitrary classification. See Lerner, 357 U.S. at page 478, 78 S.Ct. at page 1316. We conclude that the order of the County Board was not invalid under the Due Process Clause of the Fourteenth Amendment.
Nor do we believe that the remand on procedural grounds required in Vitarelli v. Seation, 1959, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012, has any bearing here. First, we did not reach 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., 359 U.S. at page 539, 79 S.Ct. at page 972. 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., 359 U.S. at page 545, 79 S.Ct. at page 975. 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.' He bases his whole case on the claim 'that due process affords petitioner Globe protection against the State's depriving him of employment on this arbitrary ground' of his refusal on federal constitutional grounds to answer questions of the Subcommittee. Having found that on the record here the discharge for 'insubordination' was not arbitrary, we need go no further.
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.
Affirmed.
Mr. Chief Justice WARREN took no part in the consideration or decision of this case.
Mr. Justice BLACK, whom Mr. Justice DOUGLAS joins, 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.
Here, then, is a plain conflict between the Federal Constitution and § 1028.1 of the California Code. The Federal Constitution told Globe he could, without penalty, refuse to incriminate himself before any arm of the Federal Government; California, however, has deprived him of his job solely because he exercised this federal constitutional privilege. In giving supremacy to the California law, I think the Court approves a plain violation of Article VI of the Constitution of the United States which makes that Constitution 'the supreme Law of the Land * * * any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.' I also think that this discharge under state law is a violation of the Due Process Clause of the Fourteenth Amendment in its authentic historical sense: that a State may not encroach upon the individual rights of people except for violation of a law that is valid under the 'Law of the Land.' 'Law of the Land' of necessity includes the supreme law, the Constitution itself.
The basic purpose of the Bill of Rights was to protect individual liberty against governmental procedures that the Framers though 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.
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS joins, dissenting.

## Notes

* ↑ California Government Code, § 1028.1:
* ↑ 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.
* ↑ 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.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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