Cole v. Richardson/Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

The plaintiff Richardson brought this action before a three-judge District Court to declare unconstitutional a Massachusetts loyalty oath statute, to enjoin her superiors at the Boston State Hospital from prohibiting her from discharging her duties at the hospital, and to recover back pay. The District Court entered its opinion, granting the declaratory and injunctive relief but denying the claim for back pay, on June 26, 1969. 300 F.Supp. 1321. Appellants in No. 679 filed a notice of appeal from the grant of injunctive and declaratory relief in the District Court on July 30, 1969, and docketed a timely appeal in this Court on September 29, 1969. Notice of appeal from the denial of back pay was filed in No. 774 in the District Court on August 25, 1969, and a timely appeal was docketed in this Court on October 24, 1969.

On October 25, 1969, appellee in No. 679 filed a motion to affirm or dismiss on the grounds of mootness: 'At the time this case was heard and argued in the district court the appellee's job at Boston State Hospital was still in existence, but at or before the time the appellants filed their present appeal such job had been discontinued.'

In reply, appellants in No. 679 deny that the case is moot and in support thereof submit an affidavit of Dr. Cole, Superintendent of the Boston State Hospital, which states:

'1. At all times subsequent to the decision of the United     States District Court in the above-entitled case on June 26,      1969 it has been, and at the present time is, open for the      appellee Lucretia Peteros Richardson to apply for employment      at Boston State Hospital and enjoy full consideration      pursuant to the terms of the decision of the District Court;

'2. Employment consonant with her abilities and     qualifications has been and is periodically available should      she wish to apply for such employment;

'3. The project for which the appellee was hired is still     on-going at Boston State Hospital.'

I do not see how one can even arguably maintain that the cases are moot.

The question tendered is an important one. The state oath struck down by the District Court on the grounds of vagueness reads as follows:

'I do solemnly swear (or affirm) that I will uphold and     defend the Constitution of the United States of America and      the Constitution of the Commonwealth of Massachusetts and      that I will oppose the overthrow of the government of the      United States of America or of this Commonwealth by force,      violence or by any illegal or unconstitutional method.'      Mass.Gen.Laws Ann., c. 264, § 14 (1959).

'A 'violation' of section 14, which presumably means a     failure to 'live up' to the oath, since its phraseology is in      the future tense, is a felony.' 300 F.Supp., at 1322.

The unanimous opinion of the District Court holding the oath unconstitutional is earnestly challenged by appellants in No. 679, who maintain that the invalidation of the oath is an unwarranted federal invasion of the State's domain.

I would note probable jurisdiction on both appeals and put the cases down for oral argument.