231 BRENNAN, J., dissenting. mation contained on the two Ondrejka receipts had already been given to petitioner in other statements of Ondrejka earlier turned over to petitioner, the District Court could find that the error in failing to produce those two receipts was harmless. Rosenberg v. United States, 360 U. S. 367, 377, footnote (dissenting opinion). But if the information on the receipts has not been given to petitioner in other statements of Ondrejka, I think the district judge must order a new trial for the reasons stated in my dissent in Rosenberg v. United States, 360 U. S. 367, 373. Syllabus. 368 U.S. CRAMP v. BOARD OF PUBLIC INSTRUCTION OF ORANGE COUNTY. APPEAL FROM THE SUPREME COURT OF FLORIDA. No. 72. Argued October 16, 1961. Decided December 11, 1961. A Florida statute requires every employee of the State and its subdivisions to swear in writing that, inter alia, he has never lent his "aid, support, advice, counsel or influence to the Communist Party." It requires immediate discharge of any employee failing to subscribe to such an oath. Appellant, a teacher in a public school of the State, refused to file such an oath and sued in a state court for a judgment declaring the statute unconstitutional and enjoining its enforcement. He alleged, in effect, that he had not done any of the things mentioned in the statute, as he understood it, but that its meaning was so vague as to deprive him of liberty or property without due process of law. The State Supreme Court held the statute constitutional and denied relief. Held: 1. Notwithstanding his allegation that he had not done any of the things mentioned in the required oath, appellant was not without standing to attack the statute on the ground that it was so vague as to deprive him of liberty or property without due process of law. Pp. 280–285. 2. The meaning of the required oath is so vague and uncertain that the State cannot, consistently with the Due Process Clause of the Fourteenth Amendment, force an employee either to take such an oath, at the risk of subsequent prosecution for perjury, or face immediate dismissal from public service. Pp. 285–288. 125 So. 2d 554, reversed. Tobias Simon argued the cause and filed briefs for appellant. J. R. Wells argued the cause and filed briefs for appellee. Richard W. Ervin, Attorney General of Florida, Ralph E.Odum, Assistant Attorney General, and William J. Roberts, Special Assistant Attorney General, filed a brief for the State of Florida, as amicus curiae, urging affirmance. 278 Opinion of the Court. MR. JUSTICE STEWART delivered the opinion of the Court. A Florida statute requires each employee of the State or its subdivisions to execute a written oath in which he must swear that, among other things, he has never lent his "aid, support, advice, counsel or influence to the Communist Party." Failure to subscribe to this oath 1 1 The statute in its entirety provides as follows: "All persons who now or hereafter are employed by or who now or hereafter are on the payroll of the state, or any of its departments and agencies, subdivisions, counties, cities, school boards and districts of the free public school system of the state or counties, or institutions of higher learning and all candidates for public office, are hereby required to take an oath before any person duly authorized to take acknowledgments of instruments for public record in the state in the following form: “I, ...... a citizen of the State of Florida and of the United States of America, and being employed by or an officer of .. and a recipient of public funds as such employee or officer, do hereby solemnly swear or affirm that I will support the Constitution of the United States and of the State of Florida; that I am not a member of the Communist Party; that I have not and will not lend my aid, support, advice, counsel or influence to the Communist Party; that I do not believe in the overthrow of the Government of the United States or of the State of Florida by force or violence; that I am not a member of any organization or party which believes in or teaches, directly or indirectly, the overthrow of the Government of the United States or of Florida by force or violence. "And said oath shall be filed with the records of the governing official or employing governmental agency prior to the approval of any voucher for the payment of salary, expenses, or other compensation." Fla. Stat. § 876.05. (Italics added.) The Supreme Court of Florida has construed the portion of the statutory oath printed in italics as follows: "We think the pertinent clause, despite its ungrammatical construction was meant to apply retrospectively and that it should be read as if it had been written 'I have not lent and will not lend' . . State v. Diez, 97 So. 2d 105, 109. Opinion of the Court. 368 U.S. results under the law in the employee's immediate discharge.2 After the appellant had been employed for more than nine years as a public school teacher in Orange County, Florida, it was discovered in 1959 that he had never been required to execute this statutory oath. When requested to do so he refused. He then brought an action in the state circuit court asking for a judgment declaring the oath requirement unconstitutional, and for an injunction forbidding the appellee, the Orange County Board of Public Instruction, from requiring him to execute the oath and from discharging him for his failure to do so. The circuit court held the statute valid and denied the prayer for an injunction. The Supreme Court of Florida affirmed, 125 So. 2d 554, and this is an appeal from the judgment of affirmance. Having doubt as to the jurisdiction of this Court, we postponed decision of that preliminary question until the hearing of the appeal on the merits. 366 U. S. 934. I. In his complaint in the state circuit court Cramp alleged that "he has, does and will support the Constitution of the United States and of the State of Florida; he 2 "If any person required by §§ 876.05-876.10 to take the oath herein provided for fails to execute the same, the governing authority under which such person is employed shall cause said person to be immediately discharged, and his name removed from the payroll, and such person shall not be permitted to receive any payment as an employee or as an officer where he or she was serving." Fla. Stat. § 876.06. See also Fla. Stat. § 876.08, which provides that: "[a]ny governing authority or person, under whom any employee is serving or by whom employed who shall knowingly or carelessly permit any such employee to continue in employment after failing to comply with the provisions of §§ 876.05-876.10" shall be subject to fine, imprisonment, or both. 3 The statute requiring execution of the oath was enacted in 1949. Laws of Florida, 1949, c. 25046. 278 Opinion of the Court. is not a member of the Communist Party; that he has not, does not and will not lend aid, support, advice, counsel or influence to the Communist Party; he does not believe in the overthrow of the Government of the United States or of the State of Florida by force or violence; he is not a member of any organization or party which believes in or teaches directly or indirectly the overthrow of the Government of the United States or of Florida by force or violence." He further alleged that he "is a loyal American and does not decline to execute or subscribe to the aforesaid oath for fear of the penalties provided by law for a false oath.” It is these sworn statements in the complaint which raise two related but separate questions as to our jurisdiction of this appeal. First, did the Florida Supreme Court rest its decision, at least alternatively, upon the ground that the appellant, because of these statements, lacked standing to attack the statutory oath? If so, we should have to consider the applicability of "the settled rule that where the judgment of a state court rests upon two grounds, one of which is federal and the other nonfederal in character, our jurisdiction fails if the non-federal ground is independent of the federal ground and adequate to support the judgment." Fox Film Corp. v. Muller, 296 U. S. 207, 210. Secondly, do these sworn statements of the appellant deprive him of standing to attack the state statute in this Court, irrespective of what the Florida court may have decided? The Supreme Court of Florida ruled that "because of the allegations of his own complaint the appellant teacher has unequivocally demonstrated that he has no standing to assault the subject statute on the grounds that it is a bill of attainder, or an ex post facto law." 125 So. 2d, at 560. We may assume that this ruling by the state court would operate to foreclose our consideration of this appeal if the appellant had confined his attack upon the 649690 O-62-24 |