Background
In 1941, the California State Legislature amended the charter of the city of Los Angeles so that no person could obtain or retain public employment with the city if they advocated the violent overthrow of either the state or federal government, belonged to any organization that did so advocate, or had advocated or been a member of an organization which advocated such action in the last five years. In 1948, the city of Los Angeles passed local ordinance No, 94,004, which required all employees to take the loyalty oath.
Fifteen employees with the Los Angeles Board of Public Works refused to execute the required affidavit. At an administrative hearing on January 6, 1949, all 15 individuals were fired. They sued for back pay and reinstatement in their jobs, claiming that the oath and the affidavit they were required to execute constituted a bill of attainder and an ex post facto law. The District Court of Appeals denied relief.
The petitioners then appealed to the U.S. Supreme Court, which granted certiorari.
Decision
Majority opinion
Associate Justice Tom C. Clark wrote the opinion for the majority. [1]
Clark discussed the oath and the affidavit separately. In three sentences, Clark held that since past actions and beliefs may impugn present fitness for duty, the affidavit was justified. [2] The question for the oath (which reached back five years into the past) was its constitutionality, and here Clark relied heavily on United Public Workers v. Mitchell , 330 U.S. 75 (1947), to answer that the oath was valid. [3] Since the charter change had occurred seven years before, and the oath reached back only five years, the oath was also not a bill of attainder or ex post facto law. [4] Clark distinguished United States v. Lovett , 328 U.S. 303 (1946), which was not a general law establishing qualifications for office but which specifically named certain individuals and required their separation from government service. [5]
Petitioners had argued that the charter amendment required scienter (knowledge that the organizations they belonged to did, in fact, advocate the violent overthrow of the government or a communist political philosophy). Clark assumed that the city would not implement the law in such a way as to punish those individuals who lacked scienter, and assumed that scienter was implicit in the ordinance. [5]
The decision of the District Court of Appeals was affirmed.
Frankfurter's dissent
Associate Justice Felix Frankfurter concurred in part and dissented in part.
Frankfurter noted in his dissent that the majority had repeatedly referred to public employment as a privilege, which to his mind invoked the "doctrine of privilege." [6] Invoking this doctrine, he concluded "does not meet the problem." [7]
But Frankfurter was unable to agree that the Los Angeles ordinance implied scienter. He wrote: "To find scienter implied in a criminal statute is the obvious way of reading such a statute, for guilty knowledge is the normal ingredient of criminal responsibility. The ordinance before us exacts an oath as a condition of employment; it does not define a crime. It is certainly not open to this Court to rewrite the oath required by Los Angeles of its employees..." [8] The lack of an explicit requirement for scienter in the law, he concluded, asked the employees "to swear to something they cannot be expected to know. Such a demand ... can no more be justified than the inquiry into belief which [was] invalid in American Communications Association v. Douds , 339 U.S. 382 (1950)." [9]
Frankfurter would have remanded the case back to the state court with instructions that the petitioners be allowed to take the oath under the scienter requirement imposed by the Court.
Burton's dissent
Associate Justice Harold Hitz Burton dissented in part. Under the Court's decisions in United States v. Lovett, Ex parte Garland , 71 U.S. 333 (1867), and Cummings v. Missouri , 71 U.S. 277 (1867), Burton concluded, the oath as currently framed was an ex post facto law and a bill of attainder. [10] However, Burton would have affirmed the lower court concerning the judgment regarding the two employees who had refused to sign the affidavit. The affidavit merely represented an assertion of true facts, Burton said, and as such could be required of the employees. [11]
Douglas' dissent
Associate Justice William O. Douglas dissented, joined by Associate Justice Hugo Black.
Douglas concluded that the entire case was governed by the decisions in Ex parte Garland and Cummings v. Missouri. [12] A bill of attainder as defined in these cases inflicts punishment without a judicial trial, and may be inflicted against an individual or a class (contrary to the majority's conclusion that it applies only to an individual). [13] That Garland and Cummings involved professionals rather than laborers and that Garland and Cummings involved vague accusations of misconduct rather than the single specific accusation in Garner was irrelevant, Douglas said. [14] Since the Los Angeles ordinance permitted no hearing, it was a bill of attainder and not constitutionally valid. [15]
Douglas did not reach the issue of whether the ordinance was an ex post facto law. [16]
Black's dissent
Justice Black further dissented from the majority by making two additional points. First, he argued that the majority mischaracterized the decision in Gerende v. Board of Supervisors. The Maryland law in Gerende was limited to actual acts of violence or overthrow, while the Los Angeles ordinance was not. [17] Second, Black believed that the majority's decision in Garner significantly weakened the Court's holdings in Ex parte Garland, Cummings v. Missouri, and United States v. Lovett. [18]
An affidavit is a written statement voluntarily made by an affiant or deponent under an oath or affirmation which is administered by a person who is authorized to do so by law. Such a statement is witnessed as to the authenticity of the affiant's signature by a taker of oaths, such as a notary public or commissioner of oaths. An affidavit is a type of verified statement or showing, or in other words, it contains a verification, which means that it is made under oath on penalty of perjury, and this serves as evidence for its veracity and is required in court proceedings.
A bill of attainder is an act of a legislature declaring a person, or a group of people, guilty of some crime, and punishing them, often without a trial. As with attainder resulting from the normal judicial process, the effect of such a bill is to nullify the targeted person's civil rights, most notably the right to own property, the right to a title of nobility, and, in at least the original usage, the right to life itself.
Ex parte Garland, 71 U.S. 333 (1866), was an important United States Supreme Court case involving the disbarment of former Confederate officials.
A loyalty oath is a pledge of allegiance to an organization, institution, or state of which an individual is a member. In the United States, such an oath has often indicated that the affiant has not been a member of a particular organization or organizations mentioned in the oath. The U.S. Supreme Court allows the oath to be a form of legal document.
Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951), was a United States Supreme Court case that held that groups could sue to challenge their inclusion on the Attorney General's List of Subversive Organizations. The decision was fractured on its reasoning, with each of the Justices in the majority writing separate opinions.
Article I, Section 10, Clause 1 of the United States Constitution, known as the Contract Clause, imposes certain prohibitions on the states. These prohibitions are meant to protect individuals from intrusion by state governments and to keep the states from intruding on the enumerated powers of the U.S. federal government.
Milan Dale Smith Jr. is an American attorney and jurist serving as a United States circuit judge of the United States Court of Appeals for the Ninth Circuit. Smith's brother, Gordon H. Smith, was a Republican U.S. Senator from 1997 to 2009. Milan Smith is neither a Republican nor a Democrat.
The Ironclad Oath was an oath promoted by Radical Republicans that required federal employees, lawyers, and federal elected officials to swear upon entry of office that they had never supported the Confederacy. The first such law adopted by Congress was in 1862 which attempted to make the oath a requirement for the incoming members of the 38th United States Congress to take the oath. In 1863, President Abraham Lincoln proposed the Ten percent plan, which proposed that a state in rebellion could be reintegrated if a similar oath, with an additional pledge to abide by the nationwide abolition of slavery, was taken by 10% of its voters. Congress then attempted to raise this to 51% of voters in the Wade–Davis Bill of 1864, which Lincoln pocket vetoed on the grounds that is was too harsh. After the assassination of Lincoln in 1865, his successor, Andrew Johnson, opposed the oath altogether. Given the temporary disenfranchisement of the numerous Confederate veterans and local civic leaders, a new Republican biracial coalition came to power in the eleven Southern states during Reconstruction. Southern conservative Democrats were angered to have been disenfranchised.
Dean Milk Co. v. City of Madison, Wisconsin, 340 U.S. 349 (1951), was a United States Supreme Court case dealing with the Dormant Commerce Clause, used to prohibit states from limiting interstate commerce.
MANual Enterprises, Inc. v. Day, 370 U.S. 478 (1962), is a decision by the United States Supreme Court which held that magazines consisting largely of photographs of nude or near-nude male models are not obscene within the meaning of 18 U.S.C. § 1461. It was the first case in which the Court engaged in plenary review of a Post Office Department order holding obscene matter "nonmailable."
Terminiello v. City of Chicago, 337 U.S. 1 (1949), was a case in which the Supreme Court of the United States held that a "breach of peace" ordinance of the City of Chicago that banned speech that "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance" was unconstitutional under the First and Fourteenth Amendments to the United States Constitution.
Kunz v. New York, 340 U.S. 290 (1951), was a United States Supreme Court case finding a requirement mandating a permit to speak on religious issues in public was unconstitutional. It was argued October 17, 1950, and decided January 15, 1951, 8–1. Chief Justice Vinson delivered the opinion for the Court. Justice Black and Justice Frankfurter concurred in the result only. Justice Jackson dissented.
Wieman v. Updegraff, 344 U.S. 183 (1952), is a unanimous ruling by the United States Supreme Court which held that Oklahoma loyalty oath legislation violated the due process clause of the Fourteenth Amendment to the United States Constitution because it did not give individuals the opportunity to abjure membership in subversive organizations. Due process requires that individuals have scienter, and the Oklahoma statute did not accommodate this requirement.
De Veau v. Braisted, 363 U.S. 144 (1960), is a 5-to-3 ruling by the Supreme Court of the United States that an interstate compact restricting convicted felons from holding union office is not preempted by the National Labor Relations Act or the Labor Management Reporting and Disclosure Act, does not violate the Due Process Clause of the 14th Amendment, and is not an ex post facto law or bill of attainder in violation of Article One, Section 10 of the Constitution.
American Communications Association v. Douds, 339 U.S. 382 (1950), is a 5-to-1 ruling by the United States Supreme Court which held that the Taft–Hartley Act's imposition of an anti-communist oath on labor union leaders does not violate the First Amendment to the United States Constitution, is not an ex post facto law or bill of attainder in violation of Article One, Section 10 of the United States Constitution, and is not a "test oath" in violation of Article Six of the Constitution.
Smith v. California, 361 U.S. 147 (1959), was a U.S. Supreme Court case upholding the freedom of the press. The decision deemed unconstitutional a city ordinance that made one in possession of obscene books criminally liable because it did not require proof that one had knowledge of the book's content, and thus violated the freedom of the press guaranteed in the First Amendment. Smith v. California continued the Supreme Court precedent of ruling that questions of freedom of expression were protected by the Due Process Clause of the Fourteenth Amendment from invasion by state action. It also established that in order for one to be criminally liable for possession of obscene material, there must be proof of one's knowledge of the material.
United States v. Lovett, 328 U.S. 303 (1946), was a United States Supreme Court case in which the Court held that Congress may not forbid the payment of a salary to a specific individual, as it would constitute an unconstitutional bill of attainder.
Goldblatt v. Hempstead, 369 U.S. 590 (1962), was a United States Supreme Court case concerning whether a town ordinance regulating a use of a property was unconstitutional under the Fourteenth Amendment, finding the law in question was constitutional as an exercise of the town's police powers.
Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982), is a United States Supreme Court decision concerning the vagueness and overbreadth doctrines as they apply to restrictions on commercial speech. The justices unanimously upheld an ordinance passed by a Chicago suburb that imposed licensing requirements on the sale of drug paraphernalia by a local record store. Their decision overturned the Seventh Circuit Court of Appeals.
Shelton v. Tucker, 364 U.S. 479 (1960), was a case decided by the Supreme Court of the United States. By a 5–4 vote, the Court struck down an Arkansas law imposing disclosure requirements on public schoolteachers, reasoning that they were unconstitutionally overbroad.
