Nelson v. County of Los Angeles/Dissent Brennan

Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS joins, dissenting.

This is another in the series of cases involving discharges of state and local employees from their positions after they claim their constitutional privilege against self-incrimination before investigating committees. See Solochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692; Beilan v. Board of Public Education, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414; Lerner v. Casey, 357 U.S. 468, 78 S.Ct. 1311, 2 L.Ed.2d 1423. While I adhere on this matter of constitutional law to the views I expressed in dissent in the latter two cases, 357 U.S. at page 417, 78 S.Ct. at page 1328, it is enough to say here that I believe this case to be governed squarely by Slochower, and on that basis I put my dissent. Of course this opinion is limited solely to Globe's discharge.

California has commanded that its employees answer certain broad categories of questions when propounded to them by investigating bodies, including federal bodies such as the Subcommittee of the Un-American Activities Committee involved here. Cal.Government Code § 1028.1. Invocation of the privilege against self-incrimination before such a body, in response to questions of those sorts, is made a basis for discharge. In the case of a permanent employee, it is held that discharge may come only after a hearing at which the employee is given, at least, an opportunity to explain his exercise of the privilege. Board of Education of San Francisco Unified School District v. Mass, 47 Cal.2d 494, 304 P.2d 1015. But for a temporary or probationary employee like Globe the state law, as interpreted authoritatively by the California courts below, requires a discharge of the employee upon his claim of the privilege, without further ado. 163 Cal.App.2d at pages 605-606, 329 P.2d at page 978. Opportunity for an explanation by the employee or for administrative consideration of the circumstances of the claim of privilege is foreclosed under the state law.

In Slochower, this Court had a substantially identical situation before it. There a local law which made a claim of the constitutional privilege 'equivalent to a resignation' was struck down as violative of the Due Process Clause of the Fourteenth Amendment. Only one word is necessary to add here to the Court's statement there of its reason for voiding the provision: 'As interpreted and applied by the state courts, it operates to discharge every (temporary) employee who invokes the Fifth Amendment. In practical effect the questions asked are taken as confessed and made the basis of the discharge. No consideration is given to such factors as the subject matter of the questions, remoteness of the period to which they are directed, or justification for exercise of the privilege. It matters not whether the plea resulted from mistake, inadvertence or legal advice concientiously given, whether wisely or unwisely. The heavy hand of the statute falls alike on all who exercise their constitutional privilege, the full enjoyment of which every person is entitled to receive.' 350 U.S. at page 558, 76 S.Ct. at page 641. The Court distinguished instances in which the employing government itself might be conducting an investigation into the 'fitness' of the employee.

As applied, then, to temporary or probationary employees, the California statute contains the identical vice of automatic discharge for a Fifth Amendment plea made before another body, not concerned with investigating the 'fitness' of the employee involved. It is sought here to equate Globe's case with those of Beilan and Lerner. But in the latter cases the Court took the view that the state discharges were sustainable because the employees' pleas of self-incrimination before local administrative agency investigations of their competence and reliability prevented those employing bodies from having an adequate record on which to reach an affirmative conclusion as to their competence and reliability. This failure to cooperate fully (styled lack of candor) within the framework of the employer's own proceeding to determine fitness, was said to be a constitutional basis for discharge. 357 U.S. at pages 405-408, 78 S.Ct. at pages 1321-1323; 357 U.S. at pages 475 479, 78 S.Ct. at pages 1315-1317, and see 357 U.S. at page 410, 78 S.Ct. at page 1324 (concurring opinion). But here there was not the vaguest semblance of any local administrative procedure designed to determine the fitness of Globe for further employment. It has not been hitherto suggested that the authorizing resolutions of the Un-American Activities Committee extend to enabling it to perform these functions on a grant-in-aid basis to the States. Accordingly there is presented here the very same arbitrary action-the drawing of an inference of unfitness for employment from exercise of the privilege before another body, without opportunity to explain on the part of the employee, or duty on the part of the employing body to attempt to relate the employee's conduct specifically to his fitness for employment-as was involved in Slochower. There is the same announced abdication of the local administrative body's own function of determining the fitness of its employees, in favor of an arbitrary and per se rule dependent on the behavior of the employee before another body not charged with determining his fitness.

It is said that this case differs from Slochower because that case involved a determination, based on his invocation of the privilege, that the employee was guilty of substantive misconduct, while this one simply involves a case of 'insubordination' in the employee's failure to answer questions asked by the Congressional Committee which the employing agency has ordered be answered. In the first place, Slochower did not involve any finding by the New York authorities that the employee was guilty of the matters as to which he claimed the privilege. The claim of the privilege was treated by the State as equivalent to a resignation, 350 U.S. at page 554, 76 S.Ct. at page 639, and it was only 'in practical effect,' id., 350 U.S. at page 558, 76 S.Ct. at page 641, that the questions asked were taken as confessed; that is, the State claimed the power to take the same action, discharge of the employee from employment, upon a plea of the privilege, as it could have taken upon a confession of the matters charged. The case involved an inference of unfitness for office, then, drawn arbitrarily and without opportunity to explain, from the assertion of the privilege. The same is involved here, and the thin patina of 'insubordination' that the statute encrusts on the exercise of the privilege does not change the matter. If the state labeled as 'insubordination' and mandatory ground for discharge every failure by an employee to respond to questions asked him by strangers on the street, its action would be as pointless as it was arbitrary. The point of the direction given to all employees here to answer the sort of questions covered by the statute must have been that the State thought that the matters involved in the questions bore some generic relationship to the 'fitness' of the employee to hold his position. But on this basis the case is again indistinguishable from Slochower. If it is unconstitutionally arbitrary for the State to treat every invocation of the privilege as conclusive on his fitness and in effect as an automatic discharge, then the command of the State that no temporary employee shall claim the privilege under pain of automatic discharge must be an unconstitutionally arbitrary command. A State could not, I suppose, discharge an employee for attending religious services on Sunday, see Wieman v. Updegraff, 344 U.S. 183, 192, 73 S.Ct. 215, 219, 97 L.Ed. 216, and equally so it could not enforce, by discharges for 'insubordination,' a general command to its employees not to attend such services.

The state court distinguished this case from Slochower on the grounds that Slochower was a state employee with tenure, but Globe was a temporary or probationary employee not entitled to a hearing on discharge. On this basis, it concluded that the requirement outlined by this Court in Slochower-that he could not be discharged ipso facto on his claim of the privilege, but only after a more particularized inquiry administered by his employer did not apply. 163 Cal.App.2d at pages 601-603, 329 P.2d at pages 975-976. But this Court has nothing to do with the civil service systems of the States, as such. And Globe does not here contend that he could not have been discharged without a hearing; but he does attack the specified basis of his discharge. Doubtless a probationary employee can constitutionally be discharged without specification of reasons at all; and this Court has not held that it would offend the Due Process Clause, without more, for a State to put its entire civil service on such a basis, if as a matter of internal policy it could stand to do so. But if a State discharged even a probationary employee because he was a Negro or a Jew, giving that explicit reason, its action could not be squared with the Constitution. So with Slochower's case; this Court did not reverse the judgment of New York's highest court because it had disrespected Slochower's state tenure rights, but because it had sanctioned administrative action taken expressly on an unconstitutionally arbitrary basis. So here California could have summarily discharged Globe, and that would have been an end to the matter; without more appearing, its action would be taken to rest on a permissible judgment by his superiors as to his fitness. But if it chooses expressly to bottom his discharge on a basis-like that of an automatic, unparticularized reaction to a plea of self-incrimination-which cannot by itself be sustained constitutionally, it cannot escape its constitutional obligations on the ground that as a general matter it could have effected his discharge with a minimum of formality. Cf. Vitarelli v. Seaton, 359 U.S. 535, 539, 79 S.Ct. 968, 972, 3 L.Ed.2d 1012.

For these reasons the judgment as to Globe should be reversed.