Garner v. Board of Public Works of Los Angeles/Dissent Burton

Mr. Justice BURTON, dissenting in part and concurring in part.

I cannot agree that under our decisions the oath is valid. United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252; Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366; Cummings v. State of Missouri, 4 Wall. 277, 18 L.Ed. 356. The oath is so framed as to operate retrospectively as a perpetual bar to those employees who held certain views at any time since a date five years preceding the effective date of the ordinance. It leaves no room for a change of heart. It calls for more than a profession of present loyalty or promise of future attachment. It is not limited in retrospect to any period measured by reasonable relation to the present. In time this ordinance will amount to the requirement of an oath that the affiant has never done any of the proscribed acts. Cf. Gerende v. Board of Supervisors, 341 U.S. 56, 71 S.Ct. 565; American Communications Ass'n v. Douds, 339 U.S. 382, 413 414, 70 S.Ct. 674, 691, 692, 94 L.Ed. 925.

The oath is not saved by the fact that it reaches back only to December 6, 1943, and that city employees have been forbidden since April 28, 1941, under § 432 of the Los Angeles Charter, to advise, teach or advocate the violent overthrow of the Government. See the Lovett, Garland and Cummings cases, supra.

I agree with the Court that the judgment should be affirmed as to petitioners Pacific and Schwartz. They executed the oath but refused to sign an affidavit calling for information as to their past or present membership in the Communist Party or the Communist Political Association. Such refusal does not now present the question of whether the Constitution permits the City to discharge them from municipal employment on the basis of information in their affidavits. We have before us only the question of whether municipal employees may be required to give to their employer factual information which is relevant to a determination of their present loyalty and suitability for public service. Such loyalty and suitability is no less material in candidates for appointment as municipal employees than in candidates for elective office, Gerende v. Board of Supervisors, supra, or union officers, American Communications Ass'n v. Douds, supra.