Garner v. Board of Public Works of Los Angeles/Dissent Douglas
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK joins, dissenting.

Petitioners are citizens of the United States and civil service employees of the City of Los Angeles. In 1948 the City of Los Angeles passed Ordinance No. 94,004 which requires each of its employees to subscribe to an oath of loyalty which included, inter alia, an affirmation that he does not advise, advocate, or teach, and has not within the five years prior to the effective date of the ordinance 'advised, advocated or taught, the overthrow by force, violence or other unlawful means, of the Government of the United States of America or of the State of California,' and that he is not and has not within that period been 'a member of or affiliated with any group, society, association, organization or party which advises, advocates or teaches, or has, within said period, advised, advocated or taught, the overthrow by force, violence or other unlawful means of the Government of the United States of America, or of the State of California.'

The ordinance also requires each employee to execute an affidavit stating 'whether or not he is or ever was a member of the Communist Party of the United States of America or of the Communist Political Association, and if he is or was such a member, stating the dates when he became, and the periods during which he was, such a member.'

The ordinance was passed to effectuate the provisions of § 432 of the Charter of Los Angeles, Cal.Stat.1941, c. 67, p. 3409, which provides, inter alia, that no person who has within five years prior to the adoption of § 432 advised, advocated or taught the overthrow by force or violence of the government of the United States or of California, or who during that time has been a member of or affiliated with any group or party which has advised, advocated, or taught that doctrine, shall hold or retain or be eligible for any employment in the service of the city. Thus the ordinance and § 432 of the Charter read together make plain that prior advocacy or membership is without more a disqualification for employment. Both the oath and the affidavit are methods for enforcement of that policy.

Fifteen of the petitioners refused to sign either the oath or the affidavit. Two took the oath but refused to sign the affidavit. All seventeen were discharged-the sole ground being their refusal to sign the affidavit or to sign and to take the oath, as the case may be. They had an administrative review, which afforded them no relief. This suit was thereupon instituted in the California court, claiming reinstatement and unpaid salaries. Relief was denied by the District Court of Appeal, 98 Cal.App.2d 493, 220 P.2d 958; and a hearing was denied by the Supreme Court, three justices dissenting. The case is here on certiorari.

The case is governed by Cummings v. State of Missouri, 4 Wall. 277, 18 L.Ed. 356, and Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366, which struck down test oaths adopted at the close of the Civil War. The Cummings case involved provisions of the Missouri Constitution requiring public officials and certain classes of professional people, including clergymen, to take an oath that, inter alia, they had never been 'in armed hostility' to the United States; that they had never 'by act or word' manifested their 'adherence to the cause' of enemies of the country or their 'desire' for the triumph of its enemies; that they had never 'knowingly and willingly harbored, aided, or countenanced' an enemy; that they had never been a 'member of, or connected with, any order, society, or organization inimical to the government of the United States' or engaged 'in guerilla warfare' against its inhabitants; that they had never left Missouri 'for the purpose of avoiding enrollment for or a draft into the military service of the United States' or become enrolled as a southern sympathizer.

The Garland case involved certain Acts of Congress requiring public officials and attorneys practicing before the federal courts to take an oath that they had 'voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility' against the United States and that they had 'neither sought nor accepted nor attempted to exercise the functions of any office whatever, under any authority or pretended authority in hostility to the United States.' The Court amended its rules of admission to require this oath.

Cummings, a Catholic priest, was indicted and convicted for teaching and preaching without having first taken the oath.

Garland, a member of the Bar of the Court, had served in the Confederate Government, for which he had received a pardon from the President conditioned on his taking the customary oath of loyalty. He applied for permission to practice before the Court without taking the new oath.

Article I, § 10 of the Constitution forbids any state to 'pass any Bill of Attainder' or any 'ex post facto Law'. Article I, § 9 curtails the power of Congress by providing that 'No Bill of Attainder or ex post facto Law shall be passed.' The Court ruled that the test oaths in the Cummings and Garland cases were bills of attainder and ex post facto laws within the meaning of the Constitution. 'A bill of attainder,' wrote Mr. Justice Field for the Court, 'is a legislative act which inflicts punishment without a judicial trial.'  Cummings v. State of Missouri, supra, 4 Wall. at page 323, 18 L.Ed. 356; and see United States v. Lovett, 328 U.S. 303, 317, 318, 66 S.Ct. 1073, 1079, 1080, 90 L.Ed. 1252. The Court held that deprivation of the right to follow one's profession is punishment. A bill of attainder, though generally directed against named individuals, may be directed against a whole class. Bills of attainder usually declared the guilt; here they assumed the guilt and adjudged the punishment conditionally, i.e., they deprived the parties of their right to preach and to practice law unless the presumption were removed by the expurgatory oath. That was held to be as much a bill of attainder as if the guilt had been irrevocably pronounced. The laws were also held to be ex post facto since they imposed a penalty for an act not so punishable at the time it was committed.

There are, of course, differences between the present case and the Cummings and Garland cases. Those condemned by the Los Angeles ordinance are municipal employees; those condemned in the others were professional people. Here the past conduct for which punishment is exacted is single-advocacy within the past five years of the overthrow of the Government by force and violence. In the other cases the acts for which Cummings and Garland stood condemned covered a wider range and involved some conduct which might be vague and uncertain. But those differences, seized on here in hostility to the constitutional provisions, are wholly irrelevant. Deprivation of a man's means of livelihood by reason of past conduct, not subject to this penalty when committed, is punishment whether he is a professional man, a day laborer who works for private industry, or a government employee. The deprivation is nonetheless unconstitutional whether it be for one single past act or a series of past acts. The degree of particlarity with which the past act is defined is not the criterion. We are not dealing here with the problem of vagueness in criminal statutes. No amount of certainty would have cured the laws in the Cummings and Garland cases. They were stricken down because of the mode in which punishment was inflicted.

Petitioners were disqualified from office not for what they are today, not because of any program they currently espouse. Cf. Gerende v. Board of Supervisors, 341 U.S. 56, 71 S.Ct. 565, not because of standards related to fitness for the office, cf. Dent v. State of West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623; Hawker v. People of State of New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002, but for what they once advocated. They are deprived of their livelihood by legislative act, not by judicial processes. We put the case in the aspect most invidious to petitioners. Whether they actually advocated the violent overthrow of Government does not appear. But here, as in the Cummings case, the vice is in the presumption of guilt which can only be removed by the expurgatory oath. That punishment, albeit conditional, violates here as it did in the Cummings case the constitutional prohibition against bills of attainder. Whether the ordinance also amounts to an ex post facto law is a question we do not reach. 

Notes

In addition to the history of bills of attainder in England, the draftsmen of the Constitution had before them recent examples of such legislation by the Revolutionary governments of the states. Legislative action against persons of known or suspected Loyalist sympathies included outright attaint of treason or subversion (e.g., Georgia, Act of March 1, 1778; Pennsylvania, Law 1778, c. 49; New York Laws, 1779, Third Session, c. 25); proscription and banishment (e.g., Massachusetts, Act of Sept. 1778, Charters and Gen.Laws, c, 48; New Hampshire, Laws 1778, Fourth Session, c. 9); confiscation (e.g., Delaware, Laws 1778, c. 29b; New Jersey, Act of Dec. 11, 1778, Laws, p. 40); as well as numerous test oaths involving, among other penalties, disqualification from holding office or practicing certain professions. See laws collected in Van Tyne, The Loyalists in the American Revolution, App. B, C; and generally, Thompson, Anti-Loyalist Legislation During the American Revolution, 3 Ill.L.Rev. 81, 147.