Albert Sonntag’s Legal Blog

Cold War not yet over in California

This year saw an attempt on the part of the California Legislature to abolish strictures imposed on teachers and professors at State educational institutions, as well as public employees who hold allegiance, in some manner, to the Communist Party.  Although Senate Bill 1322, sponsored by Senator Lowenthal of Long Beach, passed both houses of the Legislature on August 4th and 5th, 2008, Governor Schwarzenegger vetoed the bill in September.

 Under existing law, a permanent or classified school employee, or a classified community college employee may be suspended or dismissed from employment for known membership in the Communist Party.  As well, under existing law, a public employee is required to answer, under oath, specified questions regarding known membership in an organization advocating the forceful or violent overthrow of the U.S. government, or the government of any State.  (This awkward provision reflects outdated Cold War thinking, as the various organizations which could be considered to fall under the umbrella of Communism differ as to their strategy with regards to the overthrow of governments.  Not only did the old Communist Party USA not advocate the overthrow of the U.S. government, but it endorsed Richard Nixon in the general election of 1972).

The bill would have deleted provisions that a permanent or classified school employee, or a classified community college employee may be suspended or dismissed from employment if he or she is a knowing member of the Communist Party.  The bill would also have deleted existing provisions regarding oaths exacted of public employees.  This bill would have required that a public employee or applicant seeking public employment be permitted to decline to take and subscribe to the oath of office based on religious beliefs that conflict with his or her ability to take and subscribe to the oath without mental reservation, provided that he or she is otherwise willing and able to uphold the United States Constitution and the constitution and laws of this state and to complete the duties of employment.

The Legislative history of SB 1322 shows that the California legislators were very aware of the fact that existing legislation lags somewhat behind the times.  Thus, clearly:

“SECTION 1. The Legislature hereby finds and declares the following:

(a) From 1946 to 1991, the United States of America was locked in a precarious and potentially deadly “Cold War” with the Soviet Union.

(b) At the height of the Cold War, California responded to the perceived threat of a Communist takeover and enacted a number of statutes subjecting members of the Communist Party, or others who refused to testify against themselves under oath, to termination of employment.

(c) Though Communists who attempted to harm the United States and collude with her enemies during the Cold War were prosecuted for their actions, many innocent persons suffered due to nothing more than their personal political convictions or relationships.

(d) Although the Cold War is long over and the threat of a communist takeover of the state or federal government no longer exists, these statutes remain current law.”
Well, as the Governor has vetoed the bill, and there seems to be no intention of introducing it again, the statutes still remain current law.  The Cold War is still on in California.

Experienced civil litigation attorneys at Smith & Garg will undertake to prosecute any case falling within First Amendment protections.