1

BLACK, J., dissenting.

arbitrary ground" of his refusal on federal constitutional grounds to answer questions of the Subcommittee. Having found that on the record here the discharge for "insubordination" was not arbitrary, we need go no

further.

We do not pass upon petitioner's contention as to the Privileges and Immunities Clause of the Fourteenth Amendment, since it was neither raised in nor considered by the California courts. The judgments are

Affirmed.

MR. CHIEF JUSTICE WARREN took no part in the consideration or decision of this case.

MR. JUSTICE BLACK, whom MR. JUSTICE DOUGLAS joins, dissenting.

Section 1028.1 of the California Code, as here applied, provides that any California public employee who refuses to incriminate himself when asked to do so by a Congressional Committee "shall be suspended and dismissed from his employment in the manner provided by law." The Fifth Amendment, which is a part of the Bill of Rights, provides that no person shall be compelled to incriminate ("to be a witness against") himself. The petitioner, Globe, an employee of the State of California, appeared before the House Un-American Activities Committee of the United States Congress and claimed this federal constitutional privilege. California promptly discharged him, as the Court's opinion says, for "insubordination and violation of § 1028.1 of the Code." The "insubordination and violation" consisted exclusively of Globe's refusal to testify before the Congressional Committee; a ground for his refusal was that his answers might incriminate him. It is beyond doubt that the State took Globe's job away from him only because he claimed his privilege under the Federal Constitution.

BRENNAN, J., dissenting.

362 U.S.

Here, then, is a plain conflict between the Federal Constitution and § 1028.1 of the California Code. The Federal Constitution told Globe he could, without penalty, refuse to incriminate himself before any arm of the Federal Government; California, however, has deprived him of his job solely because he exercised this federal constitutional privilege. In giving supremacy to the California law, I think the Court approves a plain violation of Article VI of the Constitution of the United States which makes that Constitution "the supreme Law of the Land. ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." I also think that this discharge under state law is a violation of the Due Process Clause of the Fourteenth Amendment in its authentic historical sense: that a State may not encroach upon the individual rights of people except for violation of a law that is valid under the "law of the land." "Law of the land" of necessity includes the supreme law, the Constitution itself.

The basic purpose of the Bill of Rights was to protect individual liberty against governmental procedures that the Framers thought should not be used. That great purpose can be completely frustrated by holdings like this. I would hold that no State can put any kind of penalty on any person for claiming a privilege authorized by the Federal Constitution. The Court's holding to the contrary here does not bode well for individual liberty in America.

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 Slochower v. Board of Higher Education, 350 U. S. 551;

1

BRENNAN, J., dissenting.

Beilan v. Board of Public Education, 357 U. S. 399; Lerner v. Casey, 357 U. S. 468. 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 417, 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

1 The Court appears to treat the fact that the California statute is not in terms directed at the exercise of the privilege against selfincrimination, but rather covers all refusals to answer, as a factor militating in favor of its validity. The Court seems to view the privilege against self-incrimination as a somewhat strange and singular basis on which to decline to answer questions put in an investigation; or at most as an individual private soldier in a large army of reasons that might commonly be given for declining to respond. I am afraid I must view the matter more realistically. But even if the statute were taken as wholeheartedly at face value as the Court does, the consequence would not be that it was more reasonable, but rather that it was more arbitrary. It hardly avoids the rationale of this Court's decision in the Slochower case if the State adds other constitutional privileges to the list, exercise of which results per se in discharge. Such a statute would be even the more undifferentiating and arbitrary in its basis for discharge than the one involved in Slochower. And of course the crowning extent of arbitrariness is exposed by the contention that the fact that discharge would have followed a refusal to answer predicated on no reason at all justifies discharge upon claim of a constitutional privilege. It would appear of the essence of arbitrariness for the State to lump together refusals to answer based on good reasons and those based

BRENNAN, J., dissenting.

362 U.S.

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 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 605-606, 329 P. 2d, at 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 conscientiously 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 558.

on no reason at all, and make discharge automatically ensue on all. What was struck down in Slochower as unconstitutionally arbitraryundifferentiating treatment merely among those pleading the selfincrimination privilege-seems almost reasonable by comparison.

1

BRENNAN, J., dissenting.

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 405-408; 357 U. S., at 475-479; and see 357 U. S., at 410 (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 infer

2 In Slochower it was said, "It is one thing for the city authorities themselves to inquire into Slochower's fitness, but quite another for his discharge to be based entirely on events occurring before a federal committee whose inquiry was announced as not directed at 'the property, affairs, or government of the city, or . . . official conduct of city employees.'" 350 U. S., at 558. This distinction was asserted in Beilan and Lerner. 357 U. S., at 408; 357 U. S., at 477.