Nostrand v. Little/Dissent Douglas

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.' 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.