ARTHUR J. STANLEY, Jr., District Judge.
In this action the plaintiffs seek declaratory and injunctive relief, contending that Kansas statutes requiring execution of a "test oath" by state employees (K.S.A. 21-305 and K.S.A. 21-308) are unconstitutional. The statutes attacked are alleged to be violative of:
The facts as stipulated (Appendix) are adopted as the findings of the court. At the time of argument it was further stipulated that the form of oath identified as Exhibit D is utilized by various departments of the State of Kansas pursuant of K.S.A. 21-305, but not by the Board of Regents of the State of Kansas.
Jurisdiction of this court is invoked under 42 U.S.C.A. §§ 1983 and 1984; 28 U.S.C.A. §§ 1331 and 1343; 28 U.S. C.A. §§ 2281 and 2284; and 28 U.S.C.A. §§ 2201 and 2202.
Defendants suggest that the court should not grant relief until the questioned statutes have been construed by the courts of the state. They contend that such construction could very well eliminate federal constitutional questions, arguing that the Kansas Declaratory Judgment Act (K.S.A. 60-1701 to 60-1703) provides an adequate and effective means of securing resolution by the Kansas courts of the questions here presented. The abstention doctrine involves discretionary exercise of a court's equity powers. By its use a court merely declines to decide state law questions and denies immediate relief. It does not dismiss the complaint, but retains jurisdiction pending a decision by the state courts on state law issues. Relitigation of federal issues is not barred even if the state courts have decided them. England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964). Abstention here very likely would be followed by further proceedings in this court after completion of state court action and would result in undue delay in the ultimate adjudication of the case on its merits. See Baggett v. Bullitt, 377 U.S. 360, 375, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964). We decline the invitation to abstain.
No purpose would be served by a recitation here of the long line of decisions of
It is our duty to follow the decisions of the Supreme Court and, to the extent that the Keyishian decision is not in harmony with the decision in Garner v. Board of Public Works of City of Los Angeles, supra, still to follow it as the latest pronouncement of the higher court. 21 C.J.S. Courts § 192; R. J. Reynolds Tobacco Co. v. Robertson, 80 F.2d 966 (4th Cir. 1936). We conclude that K.S.A. 21-305, to the extent that it proscribes mere membership in an organization advocating the overthrow by violence of the government of the United States or of the state, without any showing of specific intent to further the aims of such organization, suffers from the "overbreadth" denounced in Keyishian, and is therefore unconstitutional.
K.S.A. 21-308 prescribes the penalty for violation, not only of K.S.A. 21-305, but also that for violation of K.S.A. 21-306 and 21-307. To strike it down, as plaintiffs pray, would emasculate 21-306 and 21-307, not here challenged.
A decree will be entered in accordance with this opinion.
"Stipulation of Facts
"The parties above named by their respective attorneys do, for purposes of the trial of this action, stipulate and agree that the following facts are true and correct and that no further evidence need be offered or introduced in support of said facts:
"1. Plaintiff, Gerald A. Ehrenreich is a citizen of the State of Kansas and of the United States and has been accepted as a clinical associate professor of psychiatry in the Department of Psychiatry at the University of Kansas Medical Center, Kansas City, Kansas. That the University of Kansas Medical Center is a school of the University of Kansas, a state institution, and the position for which the plaintiff, Gerald A. Ehrenreich, has been accepted is that of a public employee of the State of Kansas requiring payment of his salary from funds of the State of Kansas.
"2. As a condition precedent to plaintiff Ehrenreich's being placed on the payroll of the University of Kansas Medical Center, plaintiff Ehrenreich is required to sign the oath of public officers
"3. Each of the other plaintiffs is employed by the State Board of Regents of the State of Kansas in the colleges and the universities which comprise such system, namely, the plaintiffs David H. Jones, Howard Kahane, Norman R. Yetman are employed by the University of Kansas; the plaintiffs G. Y. Kenyon, James Erickson, James C. Bohan, Jr., Louis Goldman and Lyle C. Lehman are employed by Wichita State University; and the plaintiffs Cecil H. Miller, James C. Carey, William Walter Boyer, Jr., and Alfred F. Borg, are employed by Kansas State University. As a condition of their employment and to avoid threat of discharge or loss of employment each of the plaintiffs has been required to sign the aforementioned oath.
"4. Each of the aforementioned plaintiffs brings this action on their own behalf and as a representative of a class of teachers, instructors, professors, employees and prospective employees of the State of Kansas similarly situated, who are required under the color of the statutes of the State of Kansas, to sign the oath heretofore referred to, and who are so numerous as to make it impractical to bring them all before the Court.
"5. That Robert C. Londerholm is the Attorney General of the State of Kansas and is charged with the responsibility of enforcing the laws of the State of Kansas.
"6. That defendants Dwight D. Klinger, Chairman, Henry Bubb, A. H. Cromb, C. N. Cushing, John F. Eberhardt, Ray Evans, Clement Hall, L. D. Morgan, and Eldon Sloan, are the duly designated and qualified members of the Board of Regents of the State of Kansas who are empowered as agents and administrative officers of the State of Kansas with the management and government of schools of higher learning of the State of Kansas, the election and appointment of professors therein, and the enforcement of the statutes of the State of Kansas relating to such schools.
"7. Defendant W. Clarke Wescoe is the duly appointed and qualified Chancellor of the University of Kansas. The defendant James McCain is the duly appointed and qualified President of Kansas State University, and the defendant Emory H. Lindquist, is the duly appointed and qualified President of Wichita State University; that said defendants are administrative officers of the State of Kansas and are empowered with the enforcement of the statutes and regulations of the State of Kansas relating to said universities.
"8. K.S.A. 21-305 to 308 were duly enacted by the 1949 Legislature of the State of Kansas as Laws 1949, Chap. 246, Sections 1-4, and are now and were at all times herein mentioned in full force and effect. Said statutes provide as follows:
"9. K.S.A. 54-105 provides:
"10. The statutes and regulations of the State of Kansas, its schools and public agencies do not specifically provide, nor specifically prohibit, any procedure for a hearing or a judicial or administrative determination, upon:
On March 1, 1966, a letter was sent by Dr. Ehrenreich to Dr. C. Arden Miller, M. D., Provost, University of Kansas Medical Center. On March 16, 1966, Dr. Miller replied to Dr. Ehrenreich's letter. Copies of the letters are attached hereto and numbered Exhibits `B' and `C.' Other than the matters contained in this correspondence, the parties to this stipulation have no knowledge of any hearing or determination ever being held by the
"11. The plaintiffs have exhausted all available administrative remedies. The defendant Attorney General has rendered his opinions, dated March 3, 1966, and June 22, 1966, to the effect that said statutes are constitutional."
Dear Dr. Miller:
Last fall, in connection with an administrative change in my faculty position, I was asked to complete certain forms for employment by the State of Kansas. At that time I expressed my objection to the loyalty affidavit to Dr. Greaves, Chairman of the Department of Psychiatry. Dr. Greaves informed after checking through administrative channels that the University had no basis for questioning the constitutionality of the statute which covers the loyalty affidavit.
Since my original inquiry I have pursued the matter further, with the help of the National Legal Director of the American Civil Liberties Union and the legal assistance of the Greater Kansas City Affiliate of the American Civil Liberties Union. I have been advised by counsel that I should not be required to sign the loyalty affidavit in order to be employed by the State of Kansas. I am enclosing a brief legal statement, prepared by my attorney, Mr. Irving Achtenberg, upon which my continued refusal to sign the oath is based.
I might review my faculty status during this past year. Approximately a year ago I began teaching two seminars in psychoanalytic psychotherapy in the Department of Psychiatry. One seminar is for second and third year residents in psychiatry; the other is for staff (faculty) psychiatrists. I have continued to teach both seminars, every Thursday afternoon, until the present time. Shortly after starting to teach I received a letter from you notifying me of my appointment as Associate Clinical Professor of Psychiatry (Psychoanalysis). Since November 1, 1965, the date of my change of status, I have not been receiving the monthly remuneration which I had received previously. I assume this results from my not executing the required loyalty affidavit.
I find myself in a difficult position. I continue to object strongly to the required loyalty affidavit. Being in the form of a disclaimer, it has the State assuming that I am a disloyal citizen who intends to overthrow the government by force, unless I sign a statement to the contrary. Not only that, I have to declare that I will not join any organization which advocates such a position, regardless of my own beliefs or intentions. This seems to me to be an unnecessary intrusion by the State into the beliefs of its citizens. It is not only that the oath is impractical (since I should think that anyone with such treacherous plans would not hesitate to lie to conceal his intentions), nor even that it is somewhat ridiculous (since I am pressed to see how the teaching of psychotherapy to professional colleagues could result in the violent overthrow of anything, much less the government of Kansas). It is especially unpalatable in an educational setting, where the necessity for academic freedom is so obvious and so crucial to a free society. Lastly, but something I learned only a few weeks ago, the Kansas statute (to my utter amazement) states that mere refusal to sign the affidavit, just the refusal, not after a hearing or inquiry constitutes a felony! Thus the State assumes my guilt before I sign, and presumes to sentence me as a felon if I don't sign.
Teaching at the University of Kansas Medical Center is a gratifying and important professional function. Receiving the remuneration for my services is of no little significance either. But both have to assume secondary importance to the violation of my rights which I sincerely believe the Kansas loyalty requirement entails. As you may know, suits have been filed in many states against loyalty oaths. Some have already resulted in the decision that the oaths are unconstitutional. Some cases are in process
Dear Doctor Ehrenreich:
Your letter and its enclosures concerning the Loyalty Oath were forwarded to the Chancellor with a covering letter. After careful review it is his judgment that no action or response is required on the part of the University.
Dr. Greaves informs me that you continue to provide valuable services to the educational program of the Department of Psychiatry and that compensation could be provided by means of honoraria from departmental resources as in the past. We very much value your participation and hope that it will continue on this basis.
This cause having come on for trial at which all parties were present by counsel; and the court having heard the evidence and having considered the pleadings, evidence and argument of counsel; and being of the view that a decree should be entered in accordance with the opinion
It is ordered, adjudged and decreed by the Court:
1. The court declares and holds that § 21-305, Kansas Statutes Annotated, is unconstitutional and therefore invalid;
2. That the defendants and each of them, and their successors in office, are hereby enjoined from enforcing the provisions of § 21-305, Kansas Statutes Annotated; from requiring the plaintiff Ehrenreich to sign the oath set forth in § 21-305, Kansas Statutes Annotated; and from interfering with the continuation by any of the plaintiffs of their duties as employees of the State Board of Regents or of the State of Kansas because of the failure of any of the plaintiffs to take the oath prescribed by § 21-305, Kansas Statutes Annotated.