Nostrand v. Little/Dissent Douglas

by William O. Douglas

United States Supreme Court

362 U.S. 474

Nostrand  v.  Little

 Argued: March 30, 31, 1960. --- Decided: May 2, 1960

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.

I think the remand in the present case is a useless act. The Supreme Court of Washington has cleared up any ambiguity that could be relevant to the issues posed here.

The present statute says that the refusal to take the oath 'on any grounds' shall be cause for 'immediate termination' of employment. The Supreme Court of Washington has held that the oath stating whether the employee is or is not a member of a 'subversive organization' includes 'the element of scienter.' ^[1] Yet neither knowing members nor innocent members are excused from taking the oath. A hearing 'at which the employee can explain or defend his refusal to take the oath,' to use the words of the Court, would seem therefore to serve no function under this type of statute. If the present statute is taken as it is written, I think this case is ripe for decision.

City of Seattle v. Ross, 54 Wash.2d 655, 344 P.2d 216, 217, does not seem to me to be relevant. The ordinance there involved read:

'It is unlawful for anyone not lawfully authorized to frequent, enter, be in, or be found in, any place where narcotics, narcotic drugs or their derivatives are unlawfully used, kept or disposed of.'

The defendant in question entered the premises innocently and lawfully without knowledge of the presence of narcotics. He was convicted, the trial court overruling the defense of innocence.

The Supreme Court of Washington reversed the judgment of conviction, holding the ordinance was unconstitutional as applied. The court said, 54 Wash.2d at page 658, 344 P.2d at page 218:

'The respondent would have us rewrite the statute to exclude persons upon the premises for lawful purposes, as well as those who are authorized or commissioned to go there. This the court cannot do. Where the language of a statute is plain, unambiguous, and well understood according to its natural and ordinary sense and meaning, the statute itself furnishes a rule of construction beyond which the court cannot go. Parkhurst v. City of Everett, 51 Wash.2d 292, 318 P.2d 327. The trial court had no difficulty in discerning the meaning of the words used in this ordinance. A person 'lawfully authorized,' the court decided and we agree, is a person carrying some express authority to go upon the premises, as a law enforcement officer, narcotic agent, or the like, and not one who goes upon some lawful business but without express authority.' (Italics added.) A hearing under the present statute would obviously be important to a determination of the existence of 'scienter' for prosecution of one who took the oath for perjury. But such a hearing is not germane to the question whether under this statute a teacher has the right to refuse to take the oath that is tendered. The command of the statute is clear: refusal to take the oath 'on any grounds' is cause for discharge. That command poses the critical issue for us. A remand for a determination of whether there will be a hearing therefore seems to me to be a remand for an irrelevancy in the setting of this case.

Notes

1. The oath which was prepared by the Washington Attorney General and tendered to appellants, however, contains no qualifications. It reads, in material part, as follows:

'(2) That I am not a subversive person or a member of the Communist Party or any subversive organization, foreign or otherwise, which engages in or advocates, abets, advises, or teaches the overthrow, destruction or alteration of the constitutional form of the government of the United States, or of the State of Washington, or of any political subdivision of either of them, by revolution, force or violence;

'That this statement is voluntarily made by me, pursuant to the provisions of Chapter 377, Laws of 1955, with full knowledge that the same is subject to the penalties of perjury.'