ROBERT S. VOGEL, Plaintiff and Respondent, v. COUNTY OF LOS ANGELES et al., Defendants and Appellants, 68 Cal. 2d 18

PETERS, J. — Defendants appeal, in this taxpayer’s action, from a

summary judgment enjoining them from expending public funds (Code Civ. Proc., § 526a), for administering or enforcing the second paragraph of the oath required of public employees by

section 3 of

article XX of the California Constitution. The trial court held that the second paragraph of the oath is invalid, and granted the injunction. We agree with this determination.

Section 3 of

article XX of the California Constitution provides : “Members of the Legislature, and all public officers and employees, executive, legislative, and judicial, except such inferior officers and employees as may be by law exempted, shall, before they enter upon the duties of their respective offices, take and subscribe the following oath or affirmation: 11 ‘I, -, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter. 11 ‘And I do further swear (or affirm) that I do not advocate, nor am I a member of any party or organization, political or otherwise, that now advocates the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means; that within the five years immediately preceding the taking of this oath (or affirmation) I have not been a member of any party or organization, political or otherwise, that advocated the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means except as follows: -■. (If no affiliations, write in the words “No Exceptions”) and that during such time as I hold the office of - (name of office) I will not advocate nor become a member of any party or organization, political or otherwise, that advocates the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means. ’ “And no other oath, declaration, or test, shall be required as a qualification for any public office or employment. “ ‘Public officer and employee’ includes every officer and employee of the State, including the University of California, every county, city, city and county, district, and authority, including any department, division, bureau, board, commission, agency, or instrumentality of any of the foregoing. ’ ’ In 1952, this court in Pockman v.

Leonard, 39 Cal.2d 676 [249 P.2d 267], upheld the validity of the substantially similar oath found in sections 3100-3109 of the Government Code, known commonly as the Levering Act. In that case the petitioner claimed several violations of federal constitutional guarantees, and it was held that nearly all such claims were answered adversely to him by then recent decisions of the United States Supreme Court. The principal case relied upon was Adler v. Board of Education of the City of New York, 342 U.S. 485 [96 L.Ed. 517, 72 S.Ct. 380, 27 A.L.R.2d 472].

Subsequent decisions of the United States Supreme Court, however, have established constitutional doctrines not recognized in Adler, and the holding in that case has since been rejected by the United States Supreme Court. (Keyishian v. Board of Regents, 385 U.S. 589, 595 [17 L.Ed.2d 629, 636, 87 S.Ct. 675].) Accordingly we must reexamine Pockman v. Leonard, supra, 39 Cal.2d 676, in the light of the recent decisions of this court and the United States Supreme Court.

It is now well settled that, although an individual can claim no constitutional right to obtain public employment or receive any other publicly conferred benefit, the government may not condition public employment or receipt of such benefit upon any terms that it may choose to impose, and that the power of government to withhold benefits from its citizens does not encompass a “lesser” power to grant such benefits upon an arbitrary deprivation of constitutional rights. (Keyishian v. Board of Regents, supra, 385 U.S. 589, 602 [17 L.Ed.2d 629, 640, 87 S.Ct. 675] ; Sherbert v.

Verner, 374 U.S. 398, 404-406 [10 L.Ed.2d 965, 970-971, 83 S.Ct. 1790] ; Speiser v. Randall, 357 U.S. 513, 518-519 [2 L.Ed.2d 1460, 1468-1469, 78 S.Ct. 1332]; Bagley v. Washington Township Hospital Dist., 65 Cal.2d 499, 504 [55 Cal.Rptr. 401, 421 P.2d 409] ; Fort v. Civil Service Com., 61 Cal.2d 331, 334 [38 Cal.Rptr. 625, 392 P.2d 385] ; Syrek v. California Unemployment Ins. Appeals Board, 54 Cal.2d 519, 532 [7 Cal.Rptr. 97, 354 P.2d 629] ; Danskin v.

San Diego Unified School Dist., 28 Cal.2d 536, 545-546 [171 P.2d 885].) When the government seeks to require a limitation of constitutional rights as a condition of public employment, it bears the heavy burden of demonstrating the practical necessity for the limitation. The conditions annexed to the publicly conferred benefit must reasonably tend to further the purposes of the government in granting the benefit, and the utility of imposing the conditions must manifestly outweigh the impairment of constitutional rights. (Sherbert v.

Verner, supra, 374 U.S. 398, 406-409 [10 L.Ed.2d 965, 971-974, 83 S.Ct. 1790] ; Bates v. Little Rock, 361 U.S. 516, 524 [4 L.Ed.2d 480, 486, 80 S.Ct. 412] ; Bagley v. Washington Township Hospital Dist., supra, 65 Cal.2d 499, 505-508; Fort v. Civil Service Com., supra, 61 Cal.2d 331, 337-338.) Even where a compelling state purpose is present, restrictions on the cherished freedom of association protected by the First Amendment and made applicable to the states by the Fourteenth Amendment must be drawn with narrow specificity.

First Amendment freedoms are delicate and vulnerable and must be protected wherever possible. When government seeks to limit those freedoms on the basis of legitimate and substantial governmental purposes, such as eliminating subversives from the public service, those purposes cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. Precision of regulation is required so that the exercise of our most precious freedoms will not be unduly curtailed except to the extent necessitated by the legitimate governmental objective. (Keyishian v.

Board of Regents, supra, 385 U.S. 589, 602-603 [17 L.Ed.2d 629, 640-641, 87 S.Ct. 675] ; Elfbrandt v. Russell, 384 U.S. 11, 15 et seq. [16 L.Ed.2d 321, 324, 86 S.Ct. 1238] ; N.A.A.C.P. v Button, 371 U.S. 415, 432-433 [9 L.Ed. 2d 405, 417-418, 83 S.Ct. 328] ; Shelton v. Tucker, 364 U.S. 479, 488 [5 L.Ed.2d 231, 237, 81 S.Ct. 247] ; Bagley v. Washington Township Hospital Dist., supra, 65 Cal.2d 499, 506-509; Fort v. Civil Service Com., supra, 61 Cal.2d 331, 337-338.) Two recent decisions of the United States Supreme Court control this case. They make it clear that the oath required by the second paragraph of

section 3 of

article XX of the California Constitution is invalid because it bars persons from public employment for a type of association that may not be proscribed consistently with First Amendment rights. These cases determine that the paragraph is invalid. In Elfbrandt v. Russell, supra, 384 U.S. 11, the oath had been interpreted by the Supreme Court of Arizona to proscribe knowing and willful membership in the Communist Party or any other organization having for one of its purposes the overthrow of the government of Arizona or any of its political subdivisions where the employee had knowledge of the unlawful purpose.

The United States Supreme Court reasoned that quasi-political parties or other groups may embrace both legal and illegal aims (Scales v. United States, 367 U.S. 203, 229 [6 L.Ed.2d 782, 801, 81 S.Ct. 1469]) ; that in such a situation there is a danger that one in sympathy with the lawful aims of the organization, but not intending to accomplish them by violence, might be punished for his lawful adherence to lawful and constitutionally protected purposes (Noto v.

United States, 367 U.S. 290, 299-300 [6 L.Ed.2d 836, 842-843, 81 S.Ct. 1517]) ; and that, since nothing in the Arizona oath or its construction excluded association by one who does not subscribe to the organization’s unlawful purpose (cf. Aptheker v. Secretary of State, 378 U.S. 500 [12 L.Ed.2d 992, 84 S.Ct. 1659]), the oath was invalid. (Elfbrandt v.

Russell, supra, 384 U.S. at pp. 15-16 [16 L.Ed.2d at pp. 324-325, 86 S.Ct. 1238].) The United States Supreme Court also pointed out that persons who join an organization but do not share in its unlawful activities pose no threat either as citizens or as public employees, that a law which applies to membership without the specific intent to further the illegal aims of the organization infringes unnecessarily on protected freedoms and rests on the doctrine of guilt by association, and that such a law cannot stand. (Elfbrandt v.

Russell, supra, 384 U.S. at pp. 17-19 [16 L.Ed.2d at pp. 325-326, 86 S.Ct. 1238].) Elfbrandt was reaffirmed and followed in Keyishian v. Board of Regents, supra, 385 U.S. 589. There the United States Supreme Court held invalid parts of the Peinberg Law of New York, including a

section which made knowing membership in the Communist Party, as such, prima facie evidence of disqualification of teachers. Again the court held that mere knowing membership without a specific intent to further the unlawful aims of an organization is not a constitutionally adequate basis for exclusion from the governmental positions involved. The court pointed out that mere knowing membership, even with knowledge of the Communist Party’s unlawful goals, does not warrant criminal punishment (see Scales v. United States, supra, 367 U.S. 203, 228 [6 L.Ed.2d 782, 800-801, 81 S.Ct. 1469] ; Noto v.

United States, supra, 367 U.S. 290, 299 [6 L.Ed.2d 836, 842, 81 S.Ct. 1517] ; Yates v. United States, 354 U.S. 298, 331 [1 L.Ed.2d 1356, 1382, 77 S.Ct. 1064]), or a finding of moral unfitness justifying disbarment (Schware v. Board of Bar Examiners, 353 U.S. 232, 244-246 [1 L.Ed.2d 796, 804-806, 77 S.Ct. 752, 64 A.L.R.2d 288]). The court again pointed out that a law which applies to membership without the specific intent to further the unlawful aims of the organization rests on the doctrine of guilt by association and that the doctrine has “ ‘no place here. ’ ” (Keyishian v.

Board of Regents, supra, 385 U.S. at p. 607 [17 L.Ed.2d at p. 643, 87 S.Ct. 675].) The most recent expression of the United States Supreme Court is to be found in Whitehill v. Elkins (November 6, 1967) 389 U.S. 54 [19 L.Ed.2d 228, 8.8 S.Ct. 184] where that court, relying on Keyishian and Elfbrandt held overly broad an oath required by Maryland. For similar reasons, the court has held invalid oaths required by Florida and Washington. (Cramp v. Board of Public Instruction, 368 U.S. 278, 287 [7 L.Ed.2d 285, 292, 82 S.Ct. 275]; Baggett v.

Bullitt, 377 U.S. 360, 366 et seq. [12 L.Ed.2d 377, 382, 84 S.Ct. 1316].) On the basis of Keyishian and Elfbrandt, the New Hampshire Supreme Court recently held that state’s oath invalid (Opinion of the Justices, 108 N.H. 62 [228 A.2d 165, 167-168]), and due to similar considerations of the requirements of clarity and precision in restrictions in the sensitive and important First Amendment area, the Oregon Supreme Court invalidated an oath required by that state (Brush v. State Board of Higher Education (Ore.) 422 P.2d 268, 269-270).

Federal courts have held invalid oaths required by Colorado, Georgia, and Idaho. (Gallagher v. Smiley, 270 F.Supp. 86, 87 [three-judge court] ; Georgia Conference of American Assn. of University Professors v. Board of Regents, 246 F.Supp. 553, 555 [same] ; Heckler v. Shepard, 243 F.Supp. 841, 845 et seq. [same].) The second paragraph of the oath required by

section 3 of

article XX of the California Constitution proscribes membership, past, present, or future, in any party or organization which advocates the overthrow of the government by force, violence or other unlawful means, and there is no provision requiring a specific intent to further the unlawful aims of the organization. The oath proscribes not only knowing membership with an intent to further the unlawful purposes of the organization but also nonactive membership and knowing membership which is not accompanied by such specific intent.

Thus, a teacher or governmental executive may not join an international organization, containing some members from communist countries, for the purpose of obtaining knowledge in his chosen field because should the communist members obtain positions of leadership there is a danger that one of the purposes of the organization may be the overthrow of our government.

Notwithstanding the value to our society and our government of any knowledge or experience gained by membership in such an organization and notwithstanding the innocence of the motive in seeking membership, such membership is proscribed by the language of the oath in question. • The county counsel urges that the second paragraph of the oath required by

section 3 of

article XX of the California Constitution should be construed to proscribe only membership in organizations and parties when the member has the specific intent to further the unlawful aims of the group. In this connection, he relies upon Hirschman v.

County of Los Angeles, 39 Cal.2d 698, 702-703 [249 P.2d 287, 250 P.2d 145], where this court, in order to sustain the validity of an oath, construed the oath as requiring the plaintiffs to designate only those of the named organizations which they “knew” advocated overthrow of the government by force, or which ‘ ‘ to their knowledge” had been held by a court to advocate such action.

The reading into the oath involved in Hirschman of a requirement of knowledge was reasonable because a person executing the oath would not be expected to list organizations having unlawful objectives if he was unaware of the unlawful objectives. An entirely different situation is presented with regard to a specific intent to further the unlawful aims of an organization. There is nothing in the language of the second paragraph of the oath required by

section 3 of

article XX of the California Constitution which even hints that membership is not proscribed unless the member has a specific intent to further the unlawful aims of the organization, and a prospective employee considering membership in one of the organizations described therein, or an existing employee seeking to join such an organization, however much he may oppose the unlawful aims of the organization and espouse only the lawful objectives, will in the face of the unqualified language of the oath shrink from jeopardizing his chances for future public employment.

The county counsel in effect is asking this court to write a new condition into the oath, one which finds no support in the language of the oath. He is not seeking to construe that language, but to rewrite the oath. For this reason, there can be no application here of the rule that if the terms of a statute are reasonably subject to a meaning consistent with the requirements of the Constitution the statute will be given that meaning rather than another in conflict with the Constitution. (Cf. County of Madera v.

Gendron, 59 Cal.2d 798, 801 [31 Cal.Rptr. 302, 382 P.2d 342, 6 A.L.R.3d 555].) This court has recently considered governmental regulations which suffered from impermissible overbreadth in that they improperly proscribed activities protected by the First Amendment as well as activities legitimately subject to regulation. In the absence of any language therein permitting limitation of the regulations to those activities properly sub.ject to governmental restriction, the regulations were held invalid, because this court cannot rewrite the regulations. (Bagley v.

Washington Township Hospital Dist., supra, 65 Cal.2d 499, 509-510; Fort v. Civil Service Com., supra, 61 Cal.2d 331, 340; Kinnear v. City etc. of San Francisco, 61 Cal.2d 341, 343 [38 Cal.Rptr. 631, 392 P.2d 391].) On the authority of Keyislvian v. Board of Regents, supra, 385 U.S. 589, and Elfbrandt v. Russell, supra, 384 U.S. 11, it must be held that the oath required by the second paragraph of

section 3,

article XX of the California Constitution is invalid. Pockman v. Leonard, supra, 39 Cal.2d 676, holding to the contrary, is overruled. The judgment is affirmed. Traynor, C. J., Tobriner, J., Mosk, J., Burke, J., and Sullivan, J., concurred.

Tkis conclusion makes it unnecessary to consider the additional contentions of plaintiff and amici curiae, and we express no opinion thereon, that the oath is vague, that it constitutes an improper prior restraint on the exercise of First Amendment freedoms, that it improperly shifts the burden of proof of loyalty, that it constitutes a bill of attainder, that the absence of a provision for a hearing results in a denial of due process of Jaw, that the oath invades a field pre-empted by federal law, and that the oath results in a violation of the privilege against self-incrimination.