Nostrand v. Little

PETITIONER:Nostrand
RESPONDENT:Little
LOCATION:Dry Docks at Reed, WV

DOCKET NO.: 342
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 362 US 474 (1960)
ARGUED: Mar 30, 1960 / Mar 31, 1960
DECIDED: May 02, 1960

Facts of the case

Question

  • Oral Argument – March 31, 1960 (Part 1)
  • Oral Argument – March 31, 1960 (Part 2)
  • Audio Transcription for Oral Argument – March 31, 1960 (Part 1) in Nostrand v. Little
    Audio Transcription for Oral Argument – March 31, 1960 (Part 2) in Nostrand v. Little

    Audio Transcription for Oral Argument – March 30, 1960 in Nostrand v. Little

    Earl Warren:

    Number 342, Howard L. Nostrand et aL., Appellants, versus Thomas Balmer et al.

    Mr. Hoague, you may proceed.

    Francis Hoague:

    Mr. Chief Justice, may it please the Court.

    This is an appeal from a judgment of the Supreme Court of the State of Washington, which judgment sustained or held constitutional, the provisions of a certain statute which I will describe to you shortly.

    The appellants are two full professors at the University of Washington, which is a State University having tenure on — being the professors, have tenure and with certain retirement rights.

    The appellees are the State Attorney General, the president of the university and the Board of Regents in charged of the university.

    Excuse me, did I say the appellants?

    I mean the appellees are the Attorney General and the Board of Regents and the president.

    The facts are established by the findings of fact of the trial court which are set out on pages 8 and 9 of the record.

    They show that in 1955, pursuant to a statute that had been passed shortly before the spring of 1955 by the legislature, the appellants were directed by the appellees to execute an oath that they did not belong to the Communist Party or to any other subversive organization as defined in the statute.

    And they — it was stated that if they did not sign this oath and the oath is set forth in Appendix C into appellants’ brief, they did not sign this oath, they would — they would lose their employment.

    Their employment would be terminated and there would be loss of tenure in retirement.

    Now, they, thereupon, filed a petition in the state court for a declaratory judgment seeking an injunction against enforcement of the Act and restraining the insistence on the signing of the oath.

    In this, the petition, it was asserted that a statute, pursuant to which this oath was presented, violated the State and the Federal Constitution.

    Insofar as the Federal Constitution is involved, it was said that there was a denial of due process of law, that there was a — an abrogation of freedom of speech and assembly and that the statute constituted a bill of a tenure.

    Now, I will describe the statute which is charged that the constitutionality of which is challenged, it is set forth at page 5 — and pages 5 and 6 of our appendix.

    Section 1 of the statute, this is the 1955 statute, says that, “Every department or agency of the State of Washington or of any county or city in the State of Washington, shall require every employee to sign an affidavit as to whether or not he or she belongs to the Communist Party or other subversive organization.”

    Now, this is — this refers to not prior membership, but membership at the time of signing the oath.

    It goes on to say that “Refusal to answer this — this question on any grounds, shall be a cause for immediate dismissal from employment.”

    Section 4 of the 1955 Act provides that the Communist Party is a subversive organization and that membership in the Communist Party shall be a subversive activity within the meaning of the Act.

    Felix Frankfurter:

    And it covered you to tell to us about the two professors, what their status is as of this moment?

    Francis Hoague:

    Yes.

    An injunction, temporary injunction, was issued and they are in full tenure right now.

    Felix Frankfurter:

    But I thought the Supreme Court vacated?

    Francis Hoague:

    We — we obtained a stay —

    Felix Frankfurter:

    Stay —

    Francis Hoague:

    — of the vacation.

    Felix Frankfurter:

    (Voice Overlap) —

    Francis Hoague:

    Yes, Your Honor.

    Felix Frankfurter:

    So that they’re in full — in full occupation of their post.

    Francis Hoague:

    Yes, Your Honor.

    Felix Frankfurter:

    May I ask you one more thing?

    Francis Hoague:

    (Voice Overlap) —

    Felix Frankfurter:

    I’m not surprised if the university joined.

    What function did he — would he exercise under the requirement of the statute?

    Has he any independent responsibility?

    Francis Hoague:

    Not a discretionary responsibility.

    No, but an executive responsibility seems —

    Felix Frankfurter:

    And he is signed — he signed a piece of paper that would —

    Francis Hoague:

    I think he did sign a piece of paper, yes.

    Felix Frankfurter:

    If — was — was this President Odegaard or his predecessor?

    Francis Hoague:

    This was his predecessor, President Schmitz.

    And there’s been a substitution since then.

    There is a — this 1955 statute, I should say, is amendatory of a more comprehensive subversive activities statute that had been enacted in 1951.

    And there’s a part of that — that statute Section 060 — 9.81.060, which bears on this and that provides that “No person — no subversive person or a person who is a member of a subversive organization shall be eligible for employment in a state county or municipal office.”

    Now, the trial court first issued a temporary injunction and then on hearing, found that the statute violated the State Constitution in several respects and issued an injunction as paid for.

    On appeal, the Supreme Court held unconstitutional a section of the statute which attempted to incorporate the United States attorneys — Attorney General’s subversive organization list, into it.

    They held that that was unconstitutional by reason of violating the State Constitution, but held valid the balance of the statute and the oath requirement.

    Felix Frankfurter:

    Did Judge writes an opinion and a petition to his conclusions of law that —

    Francis Hoague:

    I’m sorry, Your Honor.

    I didn’t —

    Felix Frankfurter:

    Did Judge wright, the trial judge —

    Francis Hoague:

    Yes.

    Felix Frankfurter:

    — filed an opinion in addition?

    Francis Hoague:

    No, he did not.

    Felix Frankfurter:

    Just a conclusion of that.

    Francis Hoague:

    Just findings of fact —

    Felix Frankfurter:

    (Voice Overlap) in here is all we have?

    Francis Hoague:

    That’s correct.

    Yes, Your Honor.

    Felix Frankfurter:

    Thank you.

    Francis Hoague:

    Now —

    Felix Frankfurter:

    The reason I asked you, there’s some question as to what issues were raised before him and what issues he adjudicated.

    We have to determine of whether what questions are before us, from the decision of the Supreme Court, I take it that would be your view, is that right?

    Francis Hoague:

    From the decision of the Supreme Court and from certain portions of our brief to the Supreme Court and certain portions of our petition for rehearing, which I’m sorry, Your Honor, has not been printed, but it’s part of the unprinted record here in —

    Felix Frankfurter:

    I —

    Francis Hoague:

    — as —

    Felix Frankfurter:

    I didn’t mean to divert you.

    I just wanted rather —

    Francis Hoague:

    That’s perfectly all right.

    Felix Frankfurter:

    I just wondered what there was before the trial judge, but we don’t know that except what — as we get it from his findings of fact and conclusions of law.

    Is that right?

    Francis Hoague:

    And — no.

    And — and from our petition —

    Felix Frankfurter:

    Petition here, you mean?

    Francis Hoague:

    No, no.

    No —

    Felix Frankfurter:

    (Voice Overlap) —

    Francis Hoague:

    — to the — to the —

    Felix Frankfurter:

    Well —

    Francis Hoague:

    — trial judge.

    Felix Frankfurter:

    On counts that he — on counts that he, himself, adjudicated the matters on the basis on which you’ve asked him to adjudicate.

    Francis Hoague:

    He did — the trial judge adjudicated it on the basis of the State Constitution, Your Honor.

    Felix Frankfurter:

    But he — for he restricted himself with that?

    Francis Hoague:

    Restricted himself to the State Constitution entirely.

    Felix Frankfurter:

    So we don’t have to worry about that?

    Francis Hoague:

    There’s no — no problem there.

    Then when the appeal went up, you see, the appellant, that is the appellees here, argued merely the state constitutional issues in their brief.

    We, in turn, argued the federal constitutional — well, the — the — all of — all of the issues that we intended to raise.

    William J. Brennan, Jr.:

    Well, did those — would — before the Supreme Court —

    Francis Hoague:

    What State Supreme Court?

    William J. Brennan, Jr.:

    The State Supreme Court with the federal constitutional questions that were argued different from those that you had raised in your petition before the trial court?

    Francis Hoague:

    No.

    William J. Brennan, Jr.:

    They are identical, were they?

    Francis Hoague:

    They were identical.

    Of course, they were spelled out in much greater detail.

    That — but this is, I think, what counsel is referring to in our petition.

    We just set out the — that there was a denial of due process of law.

    We did not spell it out in the petition obviously.

    In the — before the State Supreme Court, we spelled it out somewhat more.

    We didn’t devote the entire brief to that issue.

    We did mention many of the same — actually, the same words that are in our brief here.

    William J. Brennan, Jr.:

    Was there — was there a brief submitted to the trial judge?

    Francis Hoague:

    Yes, there was.

    I do not know whether it’s in the — before the — no, it is not before this Court, Your Honor.

    There wasn’t a trial — trial brief, but it’s not included to that.

    Felix Frankfurter:

    I understand what Justice — it’s unquestionable that yours — that the State Supreme Court dealt with questions under the Federal Constitution.

    What the state claims is the claim of the State that the decision may rest exclusively on the State questions?

    Francis Hoague:

    No, Your Honor.

    That is —

    Felix Frankfurter:

    So (Voice Overlap) —

    Francis Hoague:

    No.

    Felix Frankfurter:

    So that there’s no doubt about it that federal constitutional questions are — or decided by the State Supreme Court and were necessary to bear decisions and this case can’t rest on exclusively State grounds?

    Francis Hoague:

    Yes.

    Felix Frankfurter:

    That’s right.

    Francis Hoague:

    Yes — that’s — that’s in the State, so if there is no question —

    Earl Warren:

    We’ll recess now, Mr. Hoague.