Earl Warren: Number 152, Thomas W. Nelson and Arthur Globe, Petitioners, versus County of Los Angeles et al. Mr. Wirin.
A. L. Wirin: May it please the Court. The petition here involves the validity of a discharge by Los Angeles County of two of its employees and initially very broadly stated the question as whether or not the discharge was that these employees were so arbitrary as to violate the due process guarantee in the Fourteenth Amendment. I think perhaps it maybe helpful if I would state to Your Honors in capsule form and very summarily the factual situation or the basis upon which the discharges were made. It is our position that the discharge -- the discharge of both petitioners by the County was solely because of their appearance under subpoena before a committee of Congress, the House Committee on Un-American Activities upon which appearance both defendants refused to answer certain questions pertaining to affiliation, pertaining to a communist affiliation upon -- based upon the Fifth Amendment as well as the First. It is our further contention that the inquiry conducted by the federal agency, House Committee on Un-American Activities was wholly unrelated to fitness for employment to loyalty in connection with fitness for employment by the County. And our further contention that both the petitioners showed the utmost candor and cooperation so far as their employer was concerned by answering all questions pertaining to their opinion and affiliation when propounded to them by the employer. And that therefore, the rationale if not the decision in Slochower against the Board accompanied by the gloss in Beilan against the Board and in Lerner versus Casey. Results in a conclusion, this is our plain that the discharges here were arbitrary. Let me put the problem a little bit differently. In terms of a statute of California, the validity of which as applied we are challenging here. That statute appears in the petitioners -- in the brief of petitioners, the white brief, on pages 2 and 3. These petitioners were discharged by the County under this statute. And as I say, as enforced against these petitioners, it is our contention that the statute violates due process. The statute appears, as I see on pages 2 and 3. I shall, in a moment, refer particular to page 3 of the last paragraph of the statute about the middle of the page. But let me tell Your Honors what the statute provides. It is a -- it is divisible in two parts, and I make the distinction and the division because we think it’s important to our case. This statute imposes an obligation upon all public employees in California to answer certain questions pertaining to affiliation and requires their dismissal if they do not comply with that mandate. It requires such employees to answer such questions when asked by the governing agency, governing body that appears on page 2. That portion of the statute is not an issue here because as I have already said, these petitioners answered all questions asked by the governing agency and fulfilled every requirement of any kind imposed upon them by the governing agency. But the statute goes one step further and it is in that regard that we are here. The statute additionally imposes an obligation upon all public employees in -- by any governmental agency in California. When appearing was subpoenaed before a committee -- a committee or subcommittee of Congress that appears, Your Honors, at page 2 where the Government Code is being quoted at about the sixth to seventh line of the quotation in the middle of the page.
Felix Frankfurter: Excuse me -- forgive me for interrupting you.
A. L. Wirin: Indeed.
Felix Frankfurter: It started up by saying -- by dealing it's relevant to give the -- what you call in capsule from the situation of the fact -- the fact of this case.
A. L. Wirin: Yes, sir. I intend to develop the facts --
Felix Frankfurter: You are now arguing as though we had nothing before us except the statute.
A. L. Wirin: Oh, no, Your Honor. I merely now calling Your Honors' attention to the text of the statute and then I would like and I maybe want to take some time, if I may, to discuss the factual situation and then apply the statute to the factual situation in this case. And I am not -- we are not challenging the statute on its face. We are challenging the statute as applied. In a moment, I shall discuss the application to these cases. At the moment, I am merely just tell -- telling you --
Felix Frankfurter: What then --
A. L. Wirin: -- what the statute provides so you know what I'm talking about as I move along.
Felix Frankfurter: That enlightened me. But I would get more -- I would get -- I could easily -- more easily in my mind apply the statute before I knew the fact for having the abstract statute --
A. L. Wirin: Will you -- will you forgive me then. Let me just call your attention --
Felix Frankfurter: You're the lawyer not I.
A. L. Wirin: Pardon me.
Felix Frankfurter: I say you're the lawyer who is arguing this case and not I. So go ahead your own way.
A. L. Wirin: Well, all I want to say at this moment is that the statute in addition to requiring a person to answer before the governmental agency of a State also require an answer -- require the employees to answer questions propounded by Congressional Committee. And then and -- and after that, I should be done with the stays of it. Your Honors will note on page 3 --
Felix Frankfurter: I -- do I gather from what you said that if California had to declare your judgment procedures, I assume it has under which you could have gone before the California Court, assuming you're outstanding there, to get declaration is for the constitutionality of the statute and they had to stay there, if I understand you, you would not be coming here finding any difficulty which the stating the statute in abstract.
A. L. Wirin: Please, I --
Felix Frankfurter: (Voice Overlap) --
A. L. Wirin: -- Your Honor understand me correctly --
Felix Frankfurter: All right.
A. L. Wirin: -- completely. I am attacking the statute only as applied to these petitioners and what I want to say now, I'm -- think -- I must say now is that this statute provides that refusal to answer questions before a committee of the Congress on any ground whatsoever and that -- that's in -- now on page 3 in the middle paragraph shall constitute ground toward dismissal. Now, of course, the California courts and -- and the respondent read the phrase on any ground whatsoever as we also are compelled to read it, it includes refusal to answer before a Congressional Committee based upon the Fifth Amendment, that's a ground. And -- and therefore, the courts below have held that the refusal of the petitioners to answer questions falls within the statute even though there isn't any question of what the refusal of the petitioners to answer questions was based upon their invocation of the Fifth Amendment before the Committee. Now, let me turn to some of the facts.
John M. Harlan: And the difference between the statute and the Slochower statute, as I understand it, is that the Slochower statute in terms referred to the Fifth Amendment and this one doesn't on its face.
A. L. Wirin: That's --
John M. Harlan: Is that substantial --
A. L. Wirin: That's substantially correct. Of course, the Slochower statute, if I may recall your -- didn't talk about the Fifth Amendment, it was a state statute. And it talked about the invocation of the privilege --
John M. Harlan: Correct.
A. L. Wirin: -- but Your Honors substantially correct. But what we're saying is that our statute, I was going to say, is worst in a way than the statute of Slochower because of the comprehensive basis upon which an employee must be dismissed on any ground whatsoever, but in any event that we're mistaken about that. We say that as applied in this case, this statute has the same effect as the application of the statute in Slochower because it's applied in this case. The sole reason for the dismissal of these employees is the fact of their invocation of the privilege against self-incrimination when appearing before a federal agency invoking a federal privilege before such federal agency in an inquiry by that agency totally unrelated to fitness for employment by the County of Los Angeles. Now, then, it is conceded and there is no dispute but what these petitioners upon their appearance before this Committee properly invoked the Fifth Amendment. The Committee finally acknowledged that the Amendment was property invoked and the County here concedes that the Amendment was properly invoked by these petitioners.
Charles E. Whittaker: Would it be legally (Inaudible)
A. L. Wirin: Yes. I will accept that settling. I think properly it goes a little -- includes legally and goes a step further, suggest kind of a moral propriety but this case doesn't involve moral so I'll -- I'll talk about this case and not the formal one that my partner's argued. Now, a brief word as to the course of these cases through the California courts and then I must go down to discussing the factual showing made by the petitioners from which we ask this Court to draw a conclusion of that, the action of the County was arbitrary. Petitions for writ of mandate were filed in the Los Angeles Superior Court in behalf of the petitioners except for petitions. The Los Angeles Superior Court ordered the writ of mandate to issue in behalf of one of the petitioner, the petitioner Globe. The petitioner Globe under the classified system in California and by the County was a probationary employee. He was summarily dismissed because of his having refused to answer questions on the grounds I've indicated by the County. He was afforded no hearing of any kind. And the Superior Court took the position that that violated the -- the mandate of the rule in the Slochower case to summarily discharge a person for having invoked a privilege before a federal agency and ordered the writ of mandate to issue. And after the petitioner Nelson, the petitioner was a -- is a permanent employee in the classified system of the County and he was entitled to a hearing and he received it. In a moment, I shall tell Your Honors about that hearing but the Superior Court ruled adversely to him. And then at each losing side, petitioner Nelson on the one hand, the County of Los Angeles in the Globe case took appeals and the District Court of Appeal upheld the discharges as to both petitioners. We then filed a petition for hearing in the Supreme Court of California, the highest court of the State. It precedes somewhat analogous to the -- to certiorari proceedings here, the Supreme Court of California granting a review in its discretion. The California Supreme Court divided narrowly the seven-judge court, four justices voted against the hearing, three justices, Chief Justice Gibson and Justice Traynor and Carter voted in favor of a hearing but it wasn't enough and so a hearing was denied and now we're here.
Hugo L. Black: Who was the third that you --
A. L. Wirin: Justice Clark -- I don't quite I say -- Justice Carter, Jesse Carter who is --
Hugo L. Black: Carter.
A. L. Wirin: Carter who has passed -- no passed away. Justice Jesse Carter and Justice -- Justice Traynor and the Chief Justice, Chief Justice Gibson voted for hearing. Now, I think also we will not be questioned but that the sole reason given by the employer that the County of Los Angeles for the discharge was the appearance of the petitioners before the House Committee. I think it can -- it will not be disputed but what the Civil Service Commission of Los Angeles County which accorded a hearing to Mr. Nelson in its findings ultimately against him made a finding that he was discharged because of his having invoked the privilege of the Fifth Amendment before the House Committee on Un-American Activities.
Charles E. Whittaker: May I ask you right this?
A. L. Wirin: Yes, sir.
Charles E. Whittaker: At that hearing, was Mr. Nelson re-asked by his employer with the County three questions he had declined to answer before the Congressional Committee?
A. L. Wirin: At that hearing, he was not re-asked the questions or any question pertaining to or in anyway in -- in -- connected with the question.
Charles E. Whittaker: Would -- one -- one more question.
A. L. Wirin: Yes, Your Honor.
Charles E. Whittaker: Would you tap then a defense to this discharge proceeding if he had answered -- been asked and answered those questions at that place?
A. L. Wirin: Oh, yes. And it is our claim, and I shall get to -- I've cited quite immediately, as to the showing which he affirmatively made at that hearing pertaining to his loyalty.
Charles E. Whittaker: Well, I thought that the statute said he -- it wouldn't be a defense, really, that he must only explain why he answered as he did to the Congressional Committee and that in fact to answer fully to this Civil Service Commission the very questions he had refused to answer to the House Committee would not be a defense. Am I right or wrong?
A. L. Wirin: Well, I think Your Honor is more right than I. And I think the statute certainly on its face and we have no construction of any -- by the -- by the courts of California to the contrary.
Charles E. Whittaker: Are you going in circle on the District Court decisions?
A. L. Wirin: Oh, no.
Charles E. Whittaker: I notice meager of the cited decision which is by mean in the case of Davis against the University of Kansas City in 127 F.Supp., it has a good deal to do with this question 129 F.Supp.716.
A. L. Wirin: Well, it's just how ignorance not to our -- it's responsible for him. Not that I disrespect for --
Charles E. Whittaker: No, no. I didn't mean -- not at all.
A. L. Wirin: -- for decisions of any court. And we shall read it by tomorrow morning and may have something to say tomorrow morning about that if it's -- if it's helpful to it, well, I hope it is.
John M. Harlan: Can I --
A. L. Wirin: Yes, Your Honor.
John M. Harlan: -- interject one of the remarks you made. You say the statute has never been construed. Do you ever discussed the Mass case?
A. L. Wirin: Yes, I'll discuss it right -- I haven't been -- I know by now.
John M. Harlan: I'll tell you exactly to save your trouble. Let me tell you what's in my mind.
A. L. Wirin: Certainly.
John M. Harlan: The Mass case came down after Slochower and it came down after this client of yours who was discharged under this procedure. And as I read the hearing that he was given before the Civil Service Commission, it was not the kind of a hearing that the Mass case with its gloss on the statute would have required. And my question is whether in light of that later procedure required by the Mass case why this case shouldn't go back for a further hearing in light of the requirements of the Mass case.
A. L. Wirin: Well --
John M. Harlan: In other words why we have to reach the question that you're imposing now.
A. L. Wirin: Well, yes. I -- I see some problems as follows. The Mass case was called to the attention of the District Court of Appeal when we had our appeal before that Court. And the District Court of Appeal in our case refused to read the Mass case. As -- as Your Honor has just -- just suggested and has refused to consider the Mass case as even requiring any kind of a hearing for -- for Globe. He --
John M. Harlan: Globe is the temporary.
A. L. Wirin: For Globe is temporary.
John M. Harlan: He (Voice Overlap) --
A. L. Wirin: And -- and the District Court of Appeal ruled that the hearing accorded to the petitioner Nelson was in accordance with the -- with the Mass case. Now, we disagreed with that and expressed our disagreement to the Supreme Court of California. And all we could get out of the Supreme Court of California on that issue was -- was three votes. So that we do have a situation where the California courts, first, the District Court of Appeal and then the Supreme Court itself by a majority vote seems to take the view that the requirements which the Supreme Court of California suggest that are imposed in Mass have been met here. And therefore, I think, were properly here and I think that this matter should be resolved having -- having exhausted all of our avenues and courts in California should now be resolved by this Court.
William O. Douglas: I understand that. What they say about this case and the Mass case is one -- page 195 that is -- turns on the status, the temporary status of -- of Nelson.
A. L. Wirin: Well, we think the District Court of Appeal was in error in two respects. In the first place --
William O. Douglas: But that's their distinction, was it?
A. L. Wirin: That -- that's one distinction. On the other hand, the District Court of Appeal does not read the -- the decision of the Supreme Court in the Mass case as permitting us to make, including Nelson, to make a complete showing at this hearing with respect to his loyalty and as showing to the effect that the same questions which had been asked of him by the House Committee had been asked by the employer and that he had answered these questions with utmost candor completely and fully and had completely demonstrated his loyalty at the hearing which he was accorded --
William O. Douglas: That's was in the --
A. L. Wirin: -- before the Court.
William O. Douglas: -- other ground for the -- their distinction in the Mass case.
A. L. Wirin: Yes. And therefore, let me then come to the factual showing which was made by the petitioner Nelson at the hearing which he was accorded under California law, a showing which we say discloses complete condor to the employer. Submitting full information concerning his opinions and his associations to the employer followed by the acceptance of his -- of that information by the employer, and we think a recognition by the employer that Nelson was a fit employee. And when I say fit, I mean fitness including loyalty in any -- in any meaning that that word passed or has been given by this Court. Now, here is what happened before the Commission and here is the evidence that he offered to the Civil Service Commission urging that his discharge should not be made final. He became a temporary employee according to the record in 1949. The moment he became an employee of the County, it was necessary for him to begin to comply with an elaborate investigatory and check loyalty system which the County of Los Angeles had been in effect a system which this Court passed upon in the opinion written by Mr. Justice Frankfurter in Parker against the County of Los Angeles, a system which this Court upheld. And he took then a -- what I would call colloquially because it's a shorthand phrase, a -- a loyalty ought but a particular kind of loyalty oath imposed and acquired by the County of Los Angeles. That loyalty oath was not only an -- the conventional oath of support of the Constitution. It had affidavits and it contained an affidavit to the effect that he did not advocate the destruction or govern by violence and that he had not done so, that he did not belong to any organization that so advocates, and that he had not done so, and he was required to list such organizations as he belong to the did and this -- this of course he did not do because he was not a member of any such organization. In addition to that, that list and Mr. Justice Frankfurter had the entire oath attached as an appendix to the opinion of this Court in the Parker case which we referred to in our brief. In addition to that, he was required to state whether or not he was a member of or had directly or indirectly supported any of the following organizations. And then there -- there was a list of 142 organizations consisting of some of the organizations that had appeared on the Attorney General's list of the interstates and a large number about this that a special committee set up by the Los Angeles County Board of Supervisors had considered sufficiently suspect so as to make inquiry as to membership. And he signed that oath and that affidavit and in -- and checked one of those 142 organizations indicating that he was -- had been a member of it, namely, the United Public -- the United Federal Workers. Now, upon his employment, he was expressly questioned pertaining to his loyalty, pertaining to his affiliation, pertaining to his membership in this organization. And Your Honors will find if Your Honors would look at -- for instance, page 58 of the record. It isn't the most -- it -- it is a long -- it is a statement in longhand made by Dorothy E.White as you will see on page 58 if you'll turn the page around. Well, it is an interview by a representative of the County of Los Angeles with the petitioner Nelson. In the course of which he asked him about his membership in the United Public -- United Federal Workers and he, with complete candor, stated he had been a member for two years from 1942 to 1944. And Your Honors will note particularly the less legible portions of this document on page 59 in which he concludes with the statement in -- and this is in her handwriting and her statement that Nelson had said that he was definitely democratic and uphold and against all communistic principles the inter lineation of is by the representative of the County not by the petitioner. And so having -- having told the County about that affiliation and satisfied the County with respect to his loyalty, he was employed.
John M. Harlan: This was before the Un-American Activities (Voice Overlap) --
A. L. Wirin: Oh, this was -- this was in 1949, Un-American Activity is -- is 1956, this is years before. Now, Your Honor, this is -- if you'll excuse me, this is just the beginning of it as to what I'm going to say in connection with the showing he made. This was in 1949. It was --
Potter Stewart: Is this -- is this when he first got the job or --
A. L. Wirin: First got the job in 19 --
Potter Stewart: This is on his job after application or -- or part --
A. L. Wirin: Well -- he -- he first was hired in 1949. And that appears in the record 44 -- at -- at 40 -- 44 and 45. But, Your Honor, he then resigned for personal reasons without any relationship to loyalty and reapplied again in April 1952. And when he reapplied, and I think I -- I -- it wasn't clear in my explanation. When he reapplied, he then had to take another loyalty oath, the same one. And he then indicated again that he would have been a member of this organization and he was at that time in 1952 that he was interviewed and questioned and he made an explanation. And this statement by Ms. or Mrs. White indicates that he had made the same statement about membership in this organization in 1949 when he was first employed. And so, he was employed in 1952 after having passed this test. And the record shows that at or about the time, he -- he filled out a questionnaire, an elaborate questionnaire in the course of which he was asked with respect to former employments. And he indicated, for instance -- pardon me. For instance in the record at 57, he indicated that he had been employed in a civilian capacity by the United States Army and he indicated on -- at 57 concerning that employment. And at 63, page 63 at the same time in April 1952, perhaps this is a little better than the former one.
William O. Douglas: What is that page?
A. L. Wirin: Page 63. He had to indicate who all his employers were or whether he was dismissed or resigned and the reasons for dismissal. And Your Honors will find, for instance, in the -- towards the bottom right hand column with respect to the Army that he was dismissed. And then in the extreme bottom left hand, he indicates that he was dismissed from United States Army giving -- giving the date. And a little bit later, in a questionnaire which he had filled out, he indicated that he had been dismissed from the United States Army because, as he put it, this appears in the record at 74, at the very bottom of the page of 74 towards the left -- left side of the page, he indicates that he was dismissed by the United States Army for alleged -- as the alleged violation of Public Law 808. And later on, he was asked about that and he indicated that it was Public Law 808 of the 77th Congress. And that's the statute which provides for discharge of persons in the employee of -- the agencies of the Government for security reasons and -- and provides for -- for summary dismissal. So he told these things to the County, the County knew these things, and the County thereafter gave him promotions, gave him increase in compensation, gave him ratings, for instance, of -- of excellent.
Hugo L. Black: What is the relevancy of this -- the legal question?
A. L. Wirin: Well, the relevancy to the legal question is this. It is our contention that under the comprehensive loyalty check system invoked and used by the County as to all of its employees including this -- this petitioner, the County knew all about him, made various inquiries from him, pertaining to his loyalty, pertaining to his affiliation, all of which with respect to none of which he disclosed any information, with respect to all of which he showed complete candor. And --
Felix Frankfurter: Did you take judicial notice of that?
A. L. Wirin: No. It's in -- this is in the record.
Felix Frankfurter: What?
A. L. Wirin: Oh, no, not at all. This is a matter which is in the record.
Felix Frankfurter: You mean it was adjudicated that although the truthful statement --
A. L. Wirin: Well --
Felix Frankfurter: -- the mere fact that a man and a questionnaire doesn't need for the answers of the suit, does it?
A. L. Wirin: No. But we think that -- for instance, the statement which Ms. or Mrs. White represented the County made as a result of an interview from him is some evidence from which an inference can be drawn that the employer at least in that situation was satisfied with his fitness. But now --
Felix Frankfurter: But that --
A. L. Wirin: -- but now --
Felix Frankfurter: -- that precludes the County from reexamining himself.
A. L. Wirin: Oh, not at all. And if --
Felix Frankfurter: Can I ask -- I'd like to echo some (Inaudible)
A. L. Wirin: Yes.
Felix Frankfurter: What is the relevance?
A. L. Wirin: Well, the relevance of the matter is this. We fit -- we say that we assume that under Beilan and Lerner, the County was entitled to have answers to the very questions which the petitioner refused to answer before this House Committee. That the County was entitled to had answers to those questions. And that we say the County had received answers to those questions. And that when the County therefore, summarily and discharged the petitioners solely because of their appearance before the Committee --
Felix Frankfurter: But is there -- is that the record solely pure?
A. L. Wirin: That's precisely the record, Your Honors. There is -- there --
Felix Frankfurter: So Justice Whittaker put a question to you to which you say give some label. And to which you said he was more accurately in stating what the record discloses than you were.
A. L. Wirin: Well, I have said that it is probable, that a fair construction of the California statute is to the effect that even though an employee answered all questions of the employer. He nonetheless is subject to discharge if he doesn't answer such questions put by the House Committee and -- and I would -- I would agree with that. And this is what I -- I'm agreeing with.
Felix Frankfurter: This is the sequence of events. He -- he was asked questions, he was put through this so-called loyalty procedure (Inaudible) and he made discloses to satisfy the inquiring officer at the time subsequent even before -- before a Congressional Committee. He refused to answer questions. Thereupon, the County took another look at his words.
A. L. Wirin: No. This is where we defer. We -- we do not say the County took another look in that it --
Felix Frankfurter: Well --
A. L. Wirin: -- made inquiry of him --
Felix Frankfurter: No, no, no. But it said a new situation was created by his refusal to answer questions. And then it put him to explaining or justifying that before the Civil Service Commission. Is that an accurate statement?
A. L. Wirin: Well, no. I wouldn't say it was inaccurate.
Felix Frankfurter: Read correctly --
A. L. Wirin: It isn't, I would say this. This being so when he appeared before the Civil Service Commission, he then, as we claim, took on the challenge as to whether or not he was fit and loyal by offering evidence pertaining to his fitness and loyalty by offering his personnel file which showed not only these matters which I have adverted to, but which showed that as of late -- as late as January 1956, that's three months prior to his appearance before the Committee. At that time, there had been an inquiry made in connection with his affiliation and his loyalty and that he had been checked as -- as satisfactory.
Felix Frankfurter: That means the implication of that answer of yours wherein he --that the County -- that was res judicata and they could make further inquiries.
A. L. Wirin: Not at all.
Felix Frankfurter: They couldn't make further inquiries, to your phrase, the -- the challenge could be taken up by him to explain why, although he made full disclosure according to his -- your view, would satisfy the inquiring of parties when he came down here, he -- he didn't.
A. L. Wirin: Well, let me --
Felix Frankfurter: (Inaudible)
A. L. Wirin: -- let me answer, Your Honor -- I -- I --
Felix Frankfurter: Are those -- are those the facts?
A. L. Wirin: I -- I think not quite for this -- with this -- because of this exception. Had the County, after these employees had appeared before the Committee and refused to answer, called in these employees and said, “Now, look, you have not answered certain questions of the House Committee. We, in order to determine your fitness, now want to ask you some questions.” And had the County asked the same questions which the employees had refused to answer before the Congressional Committee and had the employees refused to answer those questions to the county. In other words, had the County really taken a new -- a new look in the light of what had transpired before the Committee, that would not be our case.
Felix Frankfurter: But -- but the difference between you and me your correction is merely saying the County should have done something which, all I know, I might agree with you, would be a more rational method. What the County did do to -- to act without serving inquiry upon the stated answer before the Congressional Committee and then put him to an explanation for doing so, is that correct?
A. L. Wirin: Yes.
Felix Frankfurter: All right.
A. L. Wirin: But we say that he made the explanation --
Felix Frankfurter: Well, he made --
A. L. Wirin: -- by -- by offering evidence with respect to his loyalty to the County by offering his personnel record which showed that he had answered all these questions to the County before at --
Felix Frankfurter: I will put to you again.
A. L. Wirin: Yes.
Felix Frankfurter: Your claim then is that that res judicata and the County couldn't go about it in the frank movement, namely, you go before the Civil Service Commission and satisfied them that you have good reason for withholding answers before the Congressional Committee. Isn't that it?
A. L. Wirin: Mr. Justice Frankfurter, not quite for this reason. The first -- first place --
Felix Frankfurter: (Voice Overlap) fact --
A. L. Wirin: -- in the first place, I'm not claiming that -- I'm not claiming the doctrine or of any concept of res judicata.
Felix Frankfurter: I'm not using the word but you're claiming it in effect.
A. L. Wirin: I am claiming that this case is like Slochower because I am claiming that where an employer has information concerning an employee and has it as -- as recently as January prior to the April when he's discharged. And then the employees called before a federal inquiry, conducting an inquiry not related to offense. And then the employer summarily discharges the employee solely for that reason. I am claiming that that's a violation of the principle which was laid down in Slochower --
Felix Frankfurter: He would --
A. L. Wirin: -- that -- may I just --
Felix Frankfurter: Now --
A. L. Wirin: -- that an -- that an --
Felix Frankfurter: (Voice Overlap) -- summarily discharged. That's my point. He was not summarily discharged.
A. L. Wirin: Well -- well, he was summarily discharged in the first instance and then he was given an opportunity for a hearing in the second instance. Now, as to --
Felix Frankfurter: (Voice Overlap) in the first instance --
A. L. Wirin: Well --
Felix Frankfurter: -- he was not summarily discharged without having been given the opportunity to explain why he didn't answer before the House Committee what you're saying he so abundantly answered to the lady who inquired him.
A. L. Wirin: Well, my --
Hugo L. Black: Where is the --
A. L. Wirin: Sure.
Hugo L. Black: -- where is the order which would show us whether or not -- what --what the discharge is? Is it in writing?
A. L. Wirin: It is. I'll give it to you.
Hugo L. Black: Where is it?
A. L. Wirin: I'll give it to you in a moment.
Hugo L. Black: Is it the one on page 103?
A. L. Wirin: Let's look at 115.
Hugo L. Black: 115.
A. L. Wirin: Yes, 115. Yes. The order of discharge in the first instance appears at the bottom of page 115. And contained in that order are merely recitals of their refusal of the employee to answer questions before the House Committee and --
Hugo L. Black: Where is that?
A. L. Wirin: This is at the bottom of page 115. It's --
Hugo L. Black: (Voice Overlap) --
A. L. Wirin: It reads Exhibit A to respondent's return.
Hugo L. Black: May 2nd.
A. L. Wirin: Dated May 2nd.
Hugo L. Black: Well, now --
A. L. Wirin: And -- and if Your Honor will look at page --
Hugo L. Black: Is that the only order that's --
A. L. Wirin: Well, if Your Honor --
Hugo L. Black: If you look at the --
A. L. Wirin: If Your Honor will look at page 116 at the bottom, you will see that --
Hugo L. Black: (Inaudible)
A. L. Wirin: At the bottom, you will see the recital which is made by the employer constituting the factual basis, basis for the discharge. But Mr. Justice Black, Mr. Justice Frankfurter is quite right that after Nelson received this notice, he was entitled to a hearing and he received a hearing.
Hugo L. Black: But where is that?
A. L. Wirin: Now, that hearing appears -- begins at page 1.
Hugo L. Black: That's the hearing after this order.
A. L. Wirin: Hearing after --
Hugo L. Black: (Voice Overlap) --
A. L. Wirin: -- this order with -- as to whether or not the discharge should be made final.
Potter Stewart: And he was notified in this order of his right to request a hearing (Voice Overlap) --
A. L. Wirin: Oh, yes. He re -- he requested a hearing and he received a hearing. And as a result of the hearing, the Commission positive its -- its ruling in supporting the discharge on the ground that Nelson had refused to answer questions invoking the Fifth Amendment.
Hugo L. Black: Where is that?
A. L. Wirin: 103.
Hugo L. Black: 103. In other words, the ground on which he was discharged, you say is set out on page 103 --
A. L. Wirin: Well --
Hugo L. Black: -- after the (Inaudible).
A. L. Wirin: Yes.103, 104, 105, perhaps one -- beginning with 104, indeed what the -- what the Commission does is to quote what happened -- the quote of the exact transcript of the proceeding before House Committee and you'll note, for instance, on page 104 --
Hugo L. Black: (Voice Overlap) --
A. L. Wirin: -- paragraph 7 that the -- that it says that the employee refused to answer these questions on the basis of the First Amendment supplemented by the Fifth Amendment of the United States Constitution. And then the Board continues to find that that -- that this -- this action by this employee before this Committee under these circumstances constituted insubordination under the California statute and was ground for and constituted the basis for the discharge.
Hugo L. Black: Is refusal to answer the Congressional Committee.
A. L. Wirin: Precisely. No -- no reason for his dismissal of --
Hugo L. Black: (Voice Overlap) now all the orders that were made in connection with this (Inaudible)
A. L. Wirin: These are all the orders which were made in connection with his discharge by any administrative agency. The Los Angeles Superior Court ruled that the sole reason for the discharge was the appearance before the Committee and unification of the privilege.
Hugo L. Black: What page is that?
A. L. Wirin: All right.
Charles E. Whittaker: (Inaudible) page -- beginning 115 (Inaudible)
A. L. Wirin: Yes. This is the -- this is the discharge.
Charles E. Whittaker: The order.
A. L. Wirin: This is the order. Then there was a review of the order before the -- before the Commission and the Commission confirmed the order. Now, at the -- the record at 123, Your Honor will find the ruling by the Superior Court. But -- but Your Honor -- excuse me for a moment. The Los Angeles Superior Court so construed the matter. If Your Honors will look at record 118.
Hugo L. Black: 118.
A. L. Wirin: Yes, and the beginning of 119.
Speaker: All right.
A. L. Wirin: For instance the Court said in the -- in the last paragraph were in the record 118, in each of the cases before the Court, the petitioner was discharged from county employment upon the ground. What ground? Only one ground.
Hugo L. Black: Where is that?
A. L. Wirin: The ground -- this is the last paragraph on page 118. The ground that he had been guilty of insubordination and the violation of this section which we are challenging as applied.
Charles E. Whittaker: (Inaudible) as clear as the order itself (Inaudible)
A. L. Wirin: I was trying to give Your Honor a few -- an -- a facetious remark, a -- a good opinion by this -- by a Superior Court --
Charles E. Whittaker: (Inaudible)
A. L. Wirin: -- judgement order. Now, then, I -- I do want to say one further word about -- about the record of the hearing before the Committee and that is, Mr. Justice Frankfurter will bear with me, if Your Honors would -- would look at page 96 of the record, you will find a document which we think has a special significance. Your Honors will note that this document on 96 purports to represent that Mr. Nelson's file was taken by the Sheriff's Office of Los Angeles County on January 11, 1956 on the upper right hand column and was examined a file which disclosed this matter of the employment by the petitioner by the Army as well as the interview by Dorothy E. White which I've already called to your attention.
Hugo L. Black: Well, why is that relevant if they didn't discharge him for that ground?
A. L. Wirin: Well, it's only relevant because of our -- our insistence, if you'll forgive me, upon our position that the County was at all times completely satisfied with the loyalty of this employee and that the -- and -- and we're trying to demonstrate beyond any peradventure of the doubt that the sole -- and perhaps we've already done it and now just bringing calls to -- to an unnecessary place that the sole reason for the discharge was because of the conduct of the petitioners before the Committee and not because of any relationship to --
Hugo L. Black: Well, I don't quite understand. If that is the sole ground of dismissal as you it is --
A. L. Wirin: Yes.
Hugo L. Black: -- the -- this Court, they proceed to (Inaudible) --
A. L. Wirin: Yes.
Hugo L. Black: -- what difference does it make about what happened before isn't your legal question where they had a right to discharge him on the ground that they did.
A. L. Wirin: Well, but, you see, the respondent takes the position that somehow or rather the conduct of these petitioners before the Committee is related to their loyalty to the County and to their fitness for employment.
Hugo L. Black: Are you then --
A. L. Wirin: And we are trying to negate that.
Hugo L. Black: Well, did the Board or the Court find it?
A. L. Wirin: No board and no court upon the discharge of either of the petitioners on the ground of lack of loyalty to the County, but solely on the ground that I've indicated.
Charles E. Whittaker: You're making an argument then, as I understand it, which a little bit anticipatory of what your adversary may have to say. Your point really is, as I understand it, if I don't understand it I want to understand it, that this man was discharged as the order says, that's Nelson now, the order at 116 says, namely, for a refusal to answer these questions to the House Committee under the ordinance in question and the question presented to us is, is that result justified by that law on those facts? Isn't that our question?
A. L. Wirin: Precisely.
Charles E. Whittaker: Now, we (Inaudible) are we?
Hugo L. Black: Was there any ground on which he refused to answer except for the Fifth Amendment?
A. L. Wirin: He also said the First Amendment, but he always said the Fifth when he said the First.
John M. Harlan: Supposing he had -- simply he gone before the House Un-American Activities Committee to your own answer when no constitutional right or so, would the -- the California (Inaudible)
A. L. Wirin: Well, I think perhaps so for the following reason.
John M. Harlan: Well, if they could.
A. L. Wirin: Well, I -- I think -- I think perhaps so for the following reason, may I state the reason? This leads me to my -- to my next argument. It seems to us that where a discharge of a county employee would demonstrate this fitness is based because of his refusal to answer for federal agency upon invoking the Fifth Amendment. But certain constitutional considerations and broad policy considerations come into play which might not come into play if the refusal was merely obstinate and adamant and without the use of the privilege for these reasons. In the first place, the use of the privilege before a federal agency is, of course, a right guaranteed by the Constitution. This Court has said recently and for many years, it's one of the great privileges and treasures of our -- in our constitutional system. It is said that no inference of guilt shall -- shall fall as a result of the use of the privilege. And it is said it is available to the innocent as well as the guilty. Now, then, had these petitioners merely stubbornly refused to answer a Congressional Committee? You would not have come into play the -- what we think is an important and ultimately over balancing consideration in favor of these petitioners that all they did is what the Constitution of the United States told them they could do at a place where they had a full right to do it. And that therefore a discharge under such circumstances, whether intended by the County or not, has the inevitable respect of diluting or negating or seriously abridging the force and effect of this great constitutional privilege. And of course, I could have answered your question by saying we needn't come to that because that's not this case. But I do say --
John M. Harlan: Wait a minute. Is there anything in this record that indicates that they were drawing an inference of Communist activities, inference of guilt from his claim of privilege before the House American -- Un-American Activities Committee?
A. L. Wirin: I -- I think not.
John M. Harlan: You think not.
A. L. Wirin: No. I think that the -- the clear absolute unequivocal position which the County was taken was that the refusal to answer questions of the Federal Committee on any ground whatsoever constituted a ground for -- not constituted but made a -- it was a mandatory ground for dismissal under the statute and that --
Hugo L. Black: Well, now, you make -- you state that in a way it causes distinction without any supposed (Inaudible) I thought you said that the only thing they -- the questions they asked him and he refused to answer was based on the Fifth Amendment.
A. L. Wirin: Yes.
Hugo L. Black: Now, you are saying that -- I understood you to say that on any ground whatever.
A. L. Wirin: Well, the statute under which the County function --
Hugo L. Black: And your arguing as it find here.
A. L. Wirin: Yes. The statute said on any ground whatsoever as applied here, the only ground upon which the defendants -- the petitioners now saying they relied is the -- and -- and it is considered by the County is the Fifth Amendment so that this statute broad on its face as narrowly applied to this case involved a discharge of county employees for having invoked the privilege before a federal agency of the Fifth Amendment.
John M. Harlan: Is your argument a due process argument or is it abridging immunity -- federal immunity? Which in --
A. L. Wirin: Well --
John M. Harlan: -- your argument?
A. L. Wirin: -- it's essentially a due process argument. We'd like to make also a privileges and immunities argument out of it but counsel has called our attention to the fact --
John M. Harlan: It isn't raised.
A. L. Wirin: -- we didn't make that in the --
John M. Harlan: And --
A. L. Wirin: -- state court. We raised it for the first time in this Court and this is embarrassing and so we don't press -- press the matter.
John M. Harlan: Well, your -- your due process argument then which you have to stand on is this. That although if he had claimed no federal rights at all but simply it refused to answer, California could've fire him without more.
A. L. Wirin: Well --
John M. Harlan: But since he claimed his federal rights, they can't fire him as a matter of due process -- due process even though the record does not show and there is an expressed disclaimer in the record that they were drawing any unfavorable of -- inference of guilt or anything else from his claim of privilege, is the your argument?
Charles E. Whittaker: Is it really?
A. L. Wirin: Well, it's one of my arguments. I think the -- the broader argument which I make --
Hugo L. Black: (Voice Overlap) due process, what do you press?
A. L. Wirin: The -- the due process which this Court talked about in the Slochower case that a --
Hugo L. Black: What you're talking about? Fourteenth Amendment or federal immunity?
A. L. Wirin: Of course. Well, I am not saying due process, I mean Fourteenth.
Hugo L. Black: Yes.
A. L. Wirin: I -- I mean that --
Hugo L. Black: (Voice Overlap) stated, I am not expert about that.
A. L. Wirin: Well -- well --
Hugo L. Black: Definite -- definite way in which you have to raise the constitutional --
A. L. Wirin: Well --
Hugo L. Black: -- ground --
A. L. Wirin: Well, I --
Hugo L. Black: (Voice Overlap) objection.
A. L. Wirin: Our -- our claim is that an arbitrary dismissal by --
Hugo L. Black: And what was your objection in court order?
A. L. Wirin: This was our -- this is our objection and throughout the California court.
Hugo L. Black: (Voice Overlap) --
A. L. Wirin: Well, yes, we have it in the record. Well, let's take the petition for rehearing. Our complaint is in -- is at page 106, a complaint -- the petition filed in Los Angeles Superior Court and you'll find our federal constitutional grounds listed on page 109 and they are that the discharge was arbitrary and violated due process. Now, we say that, we say, it violates due process and constitutes arbitrariness for an employer to be charge an employee for having refused to answer before a federal agency invoking the privilege against self-incrimination. Now, one -- one further --
Hugo L. Black: Do you have -- do you have other (Inaudible) in the First Amendment?
A. L. Wirin: Oh, yes. But -- distilling our various points and reducing them in this Court to -- to -- as --
Hugo L. Black: I -- I want to know what you raise because I'm interested in your point that whether or not if this is solely a discharge (Inaudible) the constitutional privilege. I want to know if I'm barred from considering it by your failure to object on the right ground.
A. L. Wirin: Well, I -- let me just say this to Your Honor. There's no question but what -- this is our position that's county counsel can help us out, there is no question about what -- throughout the California courts. We took the position that a discharge of this petitioners for having refused to answer before this Committee, whereas the refusal was based on the Fifth Amendment was arbitrary and hence, was a denial of due process --
Hugo L. Black: As far as I'm concern, the Constitution doesn't say anything about arbitrary.
A. L. Wirin: Well, the Slochower does.
Hugo L. Black: (Voice Overlap) --
A. L. Wirin: The Slochower does.
Hugo L. Black: Yes, I understand --
A. L. Wirin: And we think that's the umbrella which -- which covers us. And we think it's the umbrella which covers us for still -- for still another reason. Because in Slochower, this Court took the view that a person subpoenaed before a committee may sometimes find himself in -- in an ambiguous position as a result of which it is appropriate that he -- that he invoked the Fifth Amendment. And Mr. Justice, of course, I'm referring to the language of Mr. Justice Clark in that decision. I'm referring to similar language used by Mr. Justice Harlan in the -- in the Grunewald case as well as I think in -- in Lerner versus Casey. And I'm referring to somewhat similar language, and then I shall sit down by Dean Griswold in his talks on the Fifth Amendment in which he said that often a -- a witness appearing before a -- a Congressional Committee find himself under such circumstances where he may seek the Fifth Amendment as a sanctuary from --
Hugo L. Black: Well, but you have -- one of your grounds for objection is with respect to the Fifth Amendment in that it bridges its right to be free from being a witness against himself.
A. L. Wirin: That is --
Hugo L. Black: That is one of your grounds.
A. L. Wirin: That's one of our grounds, yes. And what I'm developing now is that under these circumstances of this case, the petitioners' appearance before this Committee was an appearance which justified him in using the Fifth Amendment because at one point, the Chairman questioned whether he was properly invoking the Fifth Amendment where they hadn't waived it and at another point, remarks completely unflattering to the witness were made while photographers were present. And so we think this is precisely the kind of a case where the use of a Fifth Amendment by a witness before a committee, when that committee was not investigating his fitness for employment cannot be used as the sole reason for discharging him from county employment.
John M. Harlan: (Voice Overlap) --
Felix Frankfurter: Are you -- before you sit down, Mr. --
A. L. Wirin: Yes, sir.
Felix Frankfurter: -- Wirin. You make no distinction between Nelson and Globe, do you in this case?
A. L. Wirin: I -- we do in our briefs.
Felix Frankfurter: In your briefs.
A. L. Wirin: And our --
Felix Frankfurter: (Voice Overlap) about it.
A. L. Wirin: -- if I -- of course.
Felix Frankfurter: All right.
A. L. Wirin: The time of that (Inaudible).
Felix Frankfurter: But what -- where is the distinction?
A. L. Wirin: -- because tremendous distinction of course. Globe was given no hearing, no opportunity --
Felix Frankfurter: No, I don't --
A. L. Wirin: -- to explain of any kind.
Felix Frankfurter: (Voice Overlap) status of the distinction.
A. L. Wirin: Well, we think the status of Globe that should not disqualify him from relief in this Court because we think Wieman versus Updegraff and Slochower against the Board drew no distinction between temporary employees and permanent employees. The employees in Slochower included both permanent employees.
Felix Frankfurter: Did they -- did the Court address itself to the problem and say there are no distinction?
A. L. Wirin: Oh, no, the courts below took the position that there is a distinction.
Tom C. Clark: Slochower was permanent.
A. L. Wirin: Slochower was permanent. In Wieman, some of the employees were not. And in (Inaudible), of course, he was just an applicant for -- for a license and you --
Felix Frankfurter: Was the point taken into consideration?
A. L. Wirin: Pardon me.
Felix Frankfurter: Is this Court address itself to the problem --
A. L. Wirin: No.
Felix Frankfurter: -- or merely take out that fact in the record?
A. L. Wirin: We -- we dug -- we dug it out from the -- both the record and the opinion.
Hugo L. Black: (Inaudible)
A. L. Wirin: Yes, of course. Yes.
John M. Harlan: Really, the essence of your position lies in that statute? There's no rational connection between the claim of privilege before a federal committee and a finding of insubordination as here, is -- is that it?
A. L. Wirin: Where the Committee is not investigating fitness for employment --
John M. Harlan: Yes.
A. L. Wirin: -- which should be the only consideration that -- that should prompt the employer.
John M. Harlan: Is that -- that's the essence of your --
A. L. Wirin: Yes.
John M. Harlan: -- due process (Voice Overlap) --
A. L. Wirin: It's very -- very strongly putting here but --
Felix Frankfurter: That isn't -- that is all there is to this case. That seems to be. (Inaudible)
A. L. Wirin: All right. My -- my partner --
Hugo L. Black: What your (Voice Overlap) --
A. L. Wirin: -- is going to follow me.
Hugo L. Black: Are you abandoning this ground? The discharge violates the rights of the petitioner under the Constitution of the United States in that with respect to the Fifth Amendment in that it abridges his right to be free from being witness against each other? Are you abandoning that?
A. L. Wirin: We -- we are not abandoning that. We are relying upon it and we are claiming that the discharge by the employer had the effect which Your Honor called my attention.
Charles E. Whittaker: Is it --
John M. Harlan: You didn't raise it.
Charles E. Whittaker: -- is it one thing in your view to refuse to answer a Congressional Committee under an objection of the Fifth Amendment and another thing to refuse to answer to your employer who says now you tell me what facts are?
A. L. Wirin: That's precisely and exactly and completely our position.
Charles E. Whittaker: You better read Davis against the University of Kansas.
A. L. Wirin: Oh, we certainly will and (Inaudible). It could be against us [Laughter].
Wm. E. Lamoreaux: If the Court please. I want to make one correction with reference to Globe. Counsel stated and I think inadvertently that he was a probationary employee. He was not -- he was merely a temporary employee.
William J. Brennan, Jr.: What's the difference?
Wm. E. Lamoreaux: And the difference is that a temporary employee was setup in the rules to take the place of somebody who maybe absent for temporary spasmatic work. A probationer is afforded to a regular position and during a six-month period, he has -- doing which he proves himself then he becomes permanent. And Globe was -- what they call a temporary eligible employee and day to day employee might have been let go on any afternoon at 5 o'clock work thus won't let him go.
Potter Stewart: Is that clear as a matter of tenure or statute under California law (Inaudible) summarily dismissed at anytime?
Wm. E. Lamoreaux: Yes. It -- I don't know whether the -- whether in the record the rules on temporary employees, I have certified copies in here.
William J. Brennan, Jr.: Was that ground taken by the (Inaudible)
Wm. E. Lamoreaux: I beg your pardon.
William J. Brennan, Jr.: Was that ground taken by the (Inaudible)
Wm. E. Lamoreaux: Yes.
William J. Brennan, Jr.: (Inaudible)
Wm. E. Lamoreaux: That's right. These are temporary employees and could be let go at anytime and if they were not entitled to a hearing before the Civil Service Commission. One statement with respect to the hearing which Mr. Nelson had before the Civil Service Commission, we thought we were complying with Slochower in that kind of a hearing and that the purpose of it was for Mr. Nelson if he wished to explain why he had taken the stand he did take before the House Un-American Activities Committee. At the close of the Civil Service hearing, nobody had put on any testimony however it was -- had been these various exhibits which Mr. Wirin has referred to. At the close of the hearing, the Chairman asked Mr. Pillsbury who is Mr. Nelson's attorney whether or not there would be any witnesses. And he said at one place, “Perhaps, Mr. Nelson may wish to testify.” And then at the bottom of page 5 in the record, he said -- Mr. Pillsbury says “There would be no other witnesses.” And again on page 7, Mr. Pillsbury says “The employee does not carried or offered any evidence or testimony at this time. He merely wishes to make a statement through counsel as to his position in regard to his discharge.” And then the -- those sides rested and the counsel win their arguments.
Hugo L. Black: What was he discharged for?
Wm. E. Lamoreaux: He was discharged for insubordination and refusing to obey Section 1028.1 of the Government Code.
Hugo L. Black: Now, getting away -- getting away from the definition of it, the legal definition, what would he be discharged for?
Wm. E. Lamoreaux: Charged for refusing to answer the questions --
Hugo L. Black: Where?
Wm. E. Lamoreaux: -- certain questions before the House Un-American Activities Committee.
Hugo L. Black: Where he had claimed the privilege of the Fifth Amendment?
Wm. E. Lamoreaux: That's correct. He claimed that. He claimed the privilege of First --
Hugo L. Black: Was there any other reason that the order shows on which his discharge was based?
Wm. E. Lamoreaux: None of it.
Hugo L. Black: None of it.
Wm. E. Lamoreaux: No, they -- they can for cause.
Hugo L. Black: What was -- what was his occupation? What's --
Wm. E. Lamoreaux: He was a --
Hugo L. Black: -- what position was he occupied?
Wm. E. Lamoreaux: Medical social worker. What --
Hugo L. Black: Medical social worker.
Wm. E. Lamoreaux: Now, what -- what that is, I don't know but that was the title of his -- his position.
Hugo L. Black: Evidently a very sensitive position.
Wm. E. Lamoreaux: Yes. [Laughs]
Felix Frankfurter: Let me ask you this question.
Wm. E. Lamoreaux: Yes, sir.
Felix Frankfurter: Can -- can a person like this employed by the County to discharge except on some statutory authority for discharge? It must -- in other words whoever is the functionary of -- purview of discharge must he have some statutory authorization.
Wm. E. Lamoreaux: No, Your Honor.
Felix Frankfurter: What?
Wm. E. Lamoreaux: No, he does not.
Felix Frankfurter: But --
Charles E. Whittaker: (Inaudible)
Wm. E. Lamoreaux: No, after he become a permanent tenure, he can still be discharged for -- for cause. The -- the --
Felix Frankfurter: I understand that.
Wm. E. Lamoreaux: (Inaudible) have it but --
Felix Frankfurter: What is the source of authority for discharge? Is it a statute or just --
Wm. E. Lamoreaux: Civil Service Rules.
Felix Frankfurter: Civil Service Rules.
Wm. E. Lamoreaux: Of the Civil Service Commission.
Felix Frankfurter: Well --
Charles E. Whittaker: (Inaudible)
Wm. E. Lamoreaux: I beg your pardon.
Charles E. Whittaker: They have the effect of law?
Wm. E. Lamoreaux: Yes.
Charles E. Whittaker: (Inaudible)
Wm. E. Lamoreaux: Yes. They're --
Felix Frankfurter: He could --
Wm. E. Lamoreaux: They are authorized by the charter of the County, the charter set for the Civil Service System and says that the service -- the Commission shall make rules and the rules shall provide for this and this and this and this.
Felix Frankfurter: And if -- if a person who has tenure as well as protected by the Civil Service law of your State, if he's fired for a reason not sanctioned by the Civil Service law of the State, could he bring a proceeding for illegal discharge?
Wm. E. Lamoreaux: Well, he first -- Justice Frankfurter, the -- the (Inaudible).
Felix Frankfurter: Because I don't like the cut of your hair. I don't like the crewcut.
Wm. E. Lamoreaux: That's true.
Felix Frankfurter: Now --
Wm. E. Lamoreaux: Then he -- within 10 days, he asked for hearing and go before the Civil Service Commission. And then the Civil Service Commission decides whether or not my boss justified and fired me because of the cut my hair.
Felix Frankfurter: Now, the date for justification must be in the rules or legislation. Is that right?
Wm. E. Lamoreaux: That's correct.
Felix Frankfurter: Therefore, you must go back to some California law to justify the charge, is that correct?
Wm. E. Lamoreaux: No. It will be just in the --
Felix Frankfurter: Well, I -- my law, I mean, Civil Service Rule that had defined (Voice Overlap) --
Wm. E. Lamoreaux: That's correct.
Felix Frankfurter: Is that right?
Wm. E. Lamoreaux: But he wouldn't have to necessarily go there to find a particular reason.
Potter Stewart: Just -- just as the (Inaudible)
Wm. E. Lamoreaux: That's right.
Felix Frankfurter: You mean he doesn't --
Charles E. Whittaker: Now --
Felix Frankfurter: -- he -- he wouldn't give the -- he wouldn't give the authorization of such rule so and so?
Wm. E. Lamoreaux: No. There -- there's no -- no such thing as that to --
Felix Frankfurter: Well, how does the man --
Wm. E. Lamoreaux: (Voice Overlap) --
Felix Frankfurter: -- know when he fired within the authority of the rule or he is fired capriciously?
Wm. E. Lamoreaux: He --
Felix Frankfurter: I don't object to the word arbitrarily so I'll use it.
Wm. E. Lamoreaux: The -- that's tested up before the Civil Service Commission. If that -- they will (Inaudible) and still feels aggrieved then he tries by mandate.
Felix Frankfurter: Now --
Wm. E. Lamoreaux: Now, there --
Felix Frankfurter: When -- when, what's the name, Nelson was fired, was there any authorization covering his case?
Wm. E. Lamoreaux: The authorization covering Nelson's case was Section 1028.1 of the Government Code --
Felix Frankfurter: All right. And that's the reason --
Wm. E. Lamoreaux: -- the state law.
Felix Frankfurter: --why he was fired?
Wm. E. Lamoreaux: Because it says in there makes the duty of him to answer questions so that if you don't answer you're insubordinate and subject to discharge the matter provided by law.
Felix Frankfurter: But you said to an answer to Justice Black's question, he was fired because he didn't answer Congressman Miller or some congressman.
Wm. E. Lamoreaux: That is correct.
Felix Frankfurter: Well, it's correct only if that comes within the provision of failure to answer insubordination. You said -- two minutes ago, you said he can be fired for insubordination in not answering questions, is that right?
Wm. E. Lamoreaux: That's correct.
Felix Frankfurter: So that the --
Wm. E. Lamoreaux: Because it would bring to Section 1028 of the Government Code.
Felix Frankfurter: Well, if that's your justification, then he was quiet for not answering questions which constitute insubordination under California law.
Wm. E. Lamoreaux: That's right.
Felix Frankfurter: All right.
Hugo L. Black: You mean then for quiet feeling to answer questions before the Committee.
Wm. E. Lamoreaux: That's correct.
Hugo L. Black: (Voice Overlap) the Committee.
Wm. E. Lamoreaux: Before the --
Hugo L. Black: And that's all.
Wm. E. Lamoreaux: That's right.
Felix Frankfurter: Isn't -- that is all as the California law which says that isn't subordination, isn't that right?
Wm. E. Lamoreaux: That's correct. The -- the -- under the California law --
Hugo L. Black: (Voice Overlap) insubordination to the federal --
Wm. E. Lamoreaux: -- he was insubordinate for not having answered the questions and that's why he was fired.
Hugo L. Black: And the sole basis are that -- is when he is called upon the Congressional Committee he said, “I claimed the benefit of constitutional privilege not to testify.” The California then discharged him by having claimed his privilege.
Wm. E. Lamoreaux: The discharge for not having answered.
Hugo L. Black: Yes, for not having answered. That's right.
Charles E. Whittaker: (Voice Overlap) you would say (Inaudible) question. That's the thing left in the (Inaudible) and that's all the difference involved.
Wm. E. Lamoreaux: The questions give -- or it didn't --
Hugo L. Black: Did he fail to answer?
Wm. E. Lamoreaux: Yes, he refused to fail -- answer the questions which were given by, I think, Mr. Taverner for the --
Hugo L. Black: Did he fail to answer the other questions?
Wm. E. Lamoreaux: Subcommittee of the House Un-American Activities. Yes, he did. Others --
Hugo L. Black: Was he discharged for failing to answer any other questions?
Wm. E. Lamoreaux: No, just the ones that -- which we referred -- which where I referred to when I -- in -- in the record.
Hugo L. Black: Congressional Committee questions.
Wm. E. Lamoreaux: Yes.
Felix Frankfurter: And I suppose --
Hugo L. Black: Can possible in it for you to make it involve of that.
Felix Frankfurter: Well, let me ask you a few questions too.
Wm. E. Lamoreaux: Yes, sir.
Felix Frankfurter: Let's be accurate about these things. When he was before the Civil Service Commission, if the Mass case is the ruling law of California, as I suppose it is, would he have been allowed to explain the Commission why he refused to answer the question?
Wm. E. Lamoreaux: Of course, he would, Your Honor.
Felix Frankfurter: Could he give explanation and certified answer to these questions, these and these and these unfair consequences would follow. Could he have done that?
Wm. E. Lamoreaux: He could have done that.
Felix Frankfurter: Could he explain that in detail if he choses?
Wm. E. Lamoreaux: He could have done, sir.
Felix Frankfurter: He can give them any relevant reasons for not answering --
Wm. E. Lamoreaux: That's right.
Felix Frankfurter: -- in which that Court would have had to respect.
Wm. E. Lamoreaux: That's right.
Hugo L. Black: And if that is -- if he has been discharged on that ground, your order would've said so, wouldn't it? Your order (Voice Overlap) --
Wm. E. Lamoreaux: On what ground?
Hugo L. Black: -- speaks the true (Voice Overlap) --
Wm. E. Lamoreaux: On -- on what ground Your Honor?
Hugo L. Black: If he had been discharged for failing to give a testimony in anyway voluntarily or involuntarily before the Civil Service Board, what was he discharged for?
Wm. E. Lamoreaux: He was discharged for refusing to testify before --
Hugo L. Black: When?
Wm. E. Lamoreaux: -- the House Un-American Activities Subcommittee.
Hugo L. Black: Are you able to see from this record as a representative of California or the city of whatever it is that he was discharged for failing to give any information under any circumstances to your Civil Service Board.
Wm. E. Lamoreaux: No, he wasn't discharged for -- for any failure to give certain information.
Hugo L. Black: Either voluntarily or involuntarily.
Wm. E. Lamoreaux: That's right.
Felix Frankfurter: Well, he was given an opportunity, was he?
Wm. E. Lamoreaux: He was given his opportunity to --
Felix Frankfurter: And he refused --
Wm. E. Lamoreaux: -- to explain.
Felix Frankfurter: -- didn't it? And he refused, didn't it?
Wm. E. Lamoreaux: And he refused.
Hugo L. Black: Why did he refuse?
Felix Frankfurter: Page 7.
Wm. E. Lamoreaux: Page 7 of the record.
Hugo L. Black: And is that the reason they discharge him?
Wm. E. Lamoreaux: No.
Hugo L. Black: It is not, certainly not, the Board shows it.
Felix Frankfurter: Is that part of the record (Inaudible) read?
Wm. E. Lamoreaux: This is -- this is part of the record.
Felix Frankfurter: Must we -- must we give him aid of the record and that -- read the whole of it and get the order of a commission in the same way which you get the meaning of a judgment in the light of the record.
Hugo L. Black: Must -- must we in order to find this man right for the discharge, find the ground [Laughter] that your order didn't rely. Are you defending it on any ground except that he failed to testify before the Congressional Committee?
Wm. E. Lamoreaux: That's the only reason --
Hugo L. Black: That's the only reason --
Wm. E. Lamoreaux: That's the reason.
Hugo L. Black: -- the California depends on.
Wm. E. Lamoreaux: And because he comes squarely within the Barenblatt case.
Hugo L. Black: Yes.
Wm. E. Lamoreaux: That --
Hugo L. Black: (Inaudible)
Wm. E. Lamoreaux: And that there's nothing in Watkins, there is nothing in any other cases which my mind go against the way he was handled. Now, we come to Globe and our position there is that both Mass and Slochower referred to permanent employees. And as to those, they -- both cases are very firm and properly so that they should be entitled to a hearing and cannot be summarily discharged. When it comes to your temporary employee, the case did not cover that situation, that's what Globe was and our position there is that he was not entitled to a hearing and therefore his discharge was also proper.
William J. Brennan, Jr.: (Inaudible) question asked before he could have been discharged by a superior (Inaudible)
Wm. E. Lamoreaux: Oh, yes. That's right. As far as Globe goes, he didn't like the way he dress, the spirit of letting go.
Fred Okrand: May it please the Court. I'd like to address myself first with reference to the Globe discharge which was the discharge that Mr. Lamoreaux concluded on. Our position is that the mere fact that Mr. Globe was a temporary employee, it doesn't dispose of this case. Mr. Justice Brennan asked if he could be discharged for any reason because he was temporary employees and Mr. Lamoreaux answered yes. We suggest that the Constitution doesn't go that far. There is no dispute in this record that he was discharged for refusal to answer before the House Committee, no dispute at all.
Potter Stewart: (Inaudible) discharge --
Fred Okrand: Now --
Potter Stewart: -- for -- for having his haircut --
Fred Okrand: No.
Potter Stewart: (Inaudible)
Fred Okrand: We say not. And we say we have authority for that in the Wieman case where this Court repeated what it had been said in the Mitchell case that Congress could not pass a law which says that no Jew, Republican or Negro could be employed. Now, Congress can't do that. The County of Los Angeles couldn't do it nor could the County of Los Angeles have discharge a temporary employee for being a Jew, a Republican or Negro. And we say that the County of Los Angeles cannot discharge a temporary employee for merely refusing to answer on proper constitutional ground before the (Voice Overlap) --
Potter Stewart: Are the Civil --
Charles E. Whittaker: Now --
Potter Stewart: -- Service regulations in the record?
Fred Okrand: They are not.
Charles E. Whittaker: What are the constitutional grounds (Inaudible) what prohibits one from discharging another when no reason at all admittedly need be given.
Fred Okrand: We think there may be a difference in a case where no reason may be given and a case where it's clearer that the reason that is given is an unconstitutional reason.
Charles E. Whittaker: In other words, though you didn't have to give it all, it'd be given bad when you (Voice Overlap) --
Fred Okrand: Right. If you discharge a person in violation of the Constitution, you can't do that. That's the -- as we read Wieman and that's as we read Slochower. We just -- we think that the Due Process Clause of the Fourteenth Amendment protects the citizen from arbitrary conduct by his government. And it -- to go a little further, it protects an applicant to a job from arbitrary conduct by his government and in this case, it protects an employee from arbitrary discharge by his government.
John M. Harlan: Well, they've fired provided that they didn't give any reason.
Fred Okrand: Well, if -- if they -- if we -- if they didn't give a reason but even if we could prove, if we could prove that it was unconstitutional reason, we would go that far and say that the Due Process Clause would protect him. Usually, it can't prove --
John M. Harlan: Tell me, did you raise or didn't you the privileges immunities point? I understood --
Fred Okrand: Well, as Mr. Wirin --
John M. Harlan: -- your partner (Voice Overlap) --
Fred Okrand: -- said this is embarrassing, we can raise that. We raise it in our petition. It's clear there. It's very clear as clear as any lawyer ought to make it, but, Your Honor, we did not press it in the appellate courts.
John M. Harlan: All right. I see.
Fred Okrand: So it's in the record in the sense that we raised it but we did not press it in the appellate courts.
John M. Harlan: Is there at large incidence?
Fred Okrand: It's there.
Speaker: (Inaudible)
Fred Okrand: We hope so, we think so. We think so.
Speaker: (Inaudible)
Fred Okrand: Well, it's -- it's there in black and white in this record raised by us. But we -- we can't tell this Court that we urged upon the District Court of Appeal or even upon the Supreme Court on petition for hearing.
Speaker: (Inaudible)
Fred Okrand: Yes. We are present. We're permitted to press it, we do press it. I see I'm through just one more thing on this record 7. Let me just say this, Your Honor. In context, well, Mr. Pillsbury said, the employee does not care to offer any evidence or testimony as this time. What he said was and what he meant was the employee does not care to offer any more evidence at this time. He had already offered evidence showing his fitness for employment. So that's the way this sentence should be read.
Charles E. Whittaker: (Inaudible) if I may. One last question (Inaudible) what would the (Inaudible) have said Nelson at this hearing that would have been a defense?
Fred Okrand: I don't know.
Charles E. Whittaker: Would it have been a defense to have answered categorically the questions which he has said to have refused to answer to the House Committee?
Fred Okrand: We have no construction of that face of the case.
Charles E. Whittaker: Well, you have the statute.
Fred Okrand: The statute --
Charles E. Whittaker: What the statute say?
Fred Okrand: -- the statute would say he had to be filed.(Voice Overlap) --
Charles E. Whittaker: The statute says all he can do is explain why he did what he did some place else.
Fred Okrand: Well, the statute doesn't say that.
John M. Harlan: (Voice Overlap) --
Charles E. Whittaker: Well, then, it --
Fred Okrand: The Mass case puts that kind of a gloss on.
John M. Harlan: There is a strong implication or intimation or whatever you chose to call for the Mass case that despite the statute on its face --
Fred Okrand: Yes.
John M. Harlan: -- an explanation might be a defense.
Fred Okrand: That's right.
John M. Harlan: You -- you agree with that.
Fred Okrand: I agree with that. We say however that the Speiser case says that they can't put that burden on us within the Due Process Clause.
Charles E. Whittaker: Now, in -- and I can read. Here is Section 1907 in the Civil Service Rules of the County of Los Angeles it's says, “Such an employee shall be entitled to answer, explain or deny the charge rules in writing within 10 business days but shall not be entitled to a hearing except in the case of fraud etcetera.”
Fred Okrand: That's --
Charles E. Whittaker: Now --
Fred Okrand: -- first to a temporary employee, Your Honor.
Charles E. Whittaker: That's a temporary employee.
Fred Okrand: Yes.
Charles E. Whittaker: But he have a different rule with respect to permanent --
Fred Okrand: Well, the -- the permanent employee has a right to a full hearing. That's the distinct -- that -- they only cite that to show that a temporary employee has no right to a hearing.
Charles E. Whittaker: Now, I see. All right.
Hugo L. Black: I presume that might mean that he's (Inaudible) to deny that he refused to answer (Voice Overlap) --
Fred Okrand: Yes. He's entitled to, he didn't though.
Speaker: Thank you, gentlemen.