Garner et al. v. Board of Public Works
Decided on June 4, 1951; 341 US 716


A. Issues Discussed: Due process, freedom of assembly

B. Legal Question Presented:

Is the City of Los Angeles constitutionally forbidden to require that its employees disclose their past or present membership in the Communist Party or the Communist Political Association?


A. Background:

"In 1941, the California Legislature amended the Charter of the City of Los Angeles so as to provide, in substance, that no person shall hold or retain or be eligible for any public office or employment in the service of the City (1) who advises, advocates or teaches the overthrow by force or violence of the State or Federal Government or belongs to an organization which does so, or (2) who, within the five years prior to the effective date, had so advised, advocated or taught or had belonged to an organization which did so.

In 1948, the City passed an ordinance requiring each of its officers and employees to take an oath that he has not within the five years preceding the effective date of the ordinance, does not now, and will not while in the service of the City, advise, advocate or teach the overthrow by force, violence or other unlawful means, of the State or Federal Government or belong to an organization which does so or has done so within such five-year period... 

The ordinance also required every employee to execute an affidavit 'stating whether or not he is or ever was a member of the Communist Party of the United States of America or of the Communist Political Association, and if he is or was such a member, stating the dates when he became, and the periods during which he was, such a member... 

On the final date for filing of the oath and affidavit petitioners were civil service employees of the City of Los Angeles. Petitioners Pacifico and Schwartz took the oath but refused to execute the affidavit. The remaining fifteen petitioners refused to do either. All were discharged for such cause, after administrative hearing, as of January 6, 1949. In this action they sue for reinstatement and unpaid salaries. The District Court of Appeal denied relief." 

On certiorari the US Supreme Court affirmed.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
A. L. Wirin, Fred Okrand, Loren Miller and Clore Warne filed a brief for the American Civil Liberties Union, as amicus curiae, urging reversal.

Charles J. Katz and Samuel Rosenwein argued the cause for petitioners. With them on the brief was John T. McTernan.
Alan G. Campbell argued the cause for respondents. With him on the brief were Ray L. Chesebro, Bourke Jones and A. L. Lawson.

"The Charter amendment is valid under the Federal Constitution to the extent that it bars from the City's public service persons who, since its adoption in 1941, advise, advocate or teach the violent overthrow of the Government or who are or become affiliated with any group doing so, since the provisions thus operating prospectively are a reasonable regulation to protect the municipal service. The question of its validity insofar as it purported to apply retrospectively for a five-year period prior to its effective date is not here involved...

It is assumed here that the oath will not be construed as affecting adversely persons who during their affiliation with a proscribed organization were innocent of its purpose, or those who severed their relations with any such organization when its character became apparent, or those who were affiliated with organizations which were not engaged in proscribed activities at the time of their affiliation; and that, if this interpretation of the oath is correct, the City will give those petitioners who heretofore refused to take the oath an opportunity to take it as interpreted and resume their employment. As thus construed, the requirement of the oath does not violate the Due Process Clause of the Fourteenth Amendment...

We think that a municipal employer is not disabled because it is an agency of the State from inquiring of its employees as to matters that may prove relevant to their fitness and suitability for the public service. Past conduct may well relate to present fitness; past loyalty may have a reasonable relationship to present and future trust. Both are commonly inquired into in determining fitness for both high and low positions in private industry and are not less relevant in public employment. The affidavit requirement is valid."

The US Supreme Court affirmed the judgment of the District Court of Appeals.

Justice Vote: 4 Pro vs. 5 Con

  • Frankfurter, F. Pro (Wrote opinion dissenting in part, concurring in part)
  • Burton, H. Pro (Wrote opinion dissenting in part, concurring
  • Douglas, W. Pro (Wrote dissenting opinion)
  • Black, H. Pro (Joined Douglas' dissenting opinion)
  • Clark, T. Con (Wrote majority opinion)
  • Jackson, R. Con (Joined majority opinion)
  • Vinson, F. Con (Joined majority opinion)
  • Reed, S. Con (Joined majority opinion)
  • Minton, S. Con (Joined majority opinion)

The ACLU, as amicus curiae, urged reversal of the judgment of the District Court of Appeals; the Supreme Court affirmed in a 4-5 vote, giving the ACLU an apparent loss.