(dissenting) — The Supreme Court of the United States vacated the judgment and remanded the cause to this court in order to ascertain whether or not the act by our interpretation affords a hearing to an employee in which he can explain or defend his refusal to take the oath.
Accordingly, the purpose of the instant opinion of this court is to decide whether or not the act contemplates such a hearing and to inform the United States Supreme Court of our decision.
Implicit in the remand is the implication that, if we hold that such a hearing is not afforded by the act, it is “violative of due process.”
The act requires every public employee to answer, under penalty of perjury, whether or not he is a subversive person by reason of being a member of the Communist party or any of the organizations designated as subversive by the attorney general of the United States pursuant to executive order No. 9835. The penalty for refusing to take the oath is immediate discharge.
The act contains no language that can be interpreted as providing for a hearing of any kind. Noth withstanding this, the majority opinion has met the issue posed by the United States Supreme Court remand by holding the act does afford the kind of a hearing contemplated by the United States Supreme Court. To reach this conclusion, the majority opinion assumes that the hearing available to teachers before discharge under unrelated teacher tenure statutes constitutes due process of law to public employees. I do not agree.
It happens that the respondents are teachers, and teachers do comprise part of the public employees in this state. The majority opinion does not hold that other employees can *139have a tenure hearing under the teacher tenure statute, or that even a teacher in a tenure act hearing can explain his refusal to take the oath as a defense to discharge under either the act in question or the teacher tenure act. I quote from the majority opinion:
“Instead of being called in by his superior and being asked orally if he belongs to a subversive organization, the legislature has adopted the policy of asking each public employee to state in writing, i. e. by affidavit, whether he is at that time a member of such an organization. If he signs the affidavit, that is the end of the matter. If he declines to sign, the employee is subject to immediate discharge. If he has no tenure rights, he has no vested right to public employment, and the act affords him due process. Nelson v. County of Los Angeles, 362 U. S. 1, 4 L. Ed. (2d) 494, 80 S. Ct. 527. On the other hand, if he has tenure rights, he must be accorded such a hearing as his contract of employment calls for.”
Teachers’ contract rights do not exclude teachers from the operation of the act in question, the mandate of which is absolute in nature. Explanation of the refusal to take the oath would not, therefore, constitute a defense to discharge in a tenure hearing. I think due process requires an opportunity to defend, not merely to make a prejudged futile statement.
While the avowed purpose of the act is to shield the sovereignty of the states from forcible overthrow, an intended result is that the public pay roll shall not be available to persons believing the principles of the Communist party or of the proscribed organizations named by the United States attorney general.
The act does not permit an affiant to put any qualifications or limitations in his affidavit. As the majority opinion says: “If he signs the affidavit, that is the end of the matter. If he declines to sign, the employee is subject to immediate discharge.” (Italics mine.)
The scienter mentioned in the original opinion of this court does not relate to the accuracy of affiant’s knowledge of the organizations or the completeness of his agreement with their tenets. It only goes to affiant’s mental competence *140and his awareness of what acts constitute joining and being a member of the organizations in question.
The body of the act constitutes a rule of evidence, viz., that membership in the proscribed organizations constitutes unrebuttable proof of a state of mind. In this respect, it harks back to the theory of the ancient- crime of “Imagining the death of the King,” which was committed by a state of mind without the commission of an overt act. Thus, a public employee is coerced to reveal his abstract secret thoughts under penalty of instant discharge. Scopes was convicted of teaching Darwinism. Under the instant kind of a law, he could be convicted for refusing to reveal his secret belief in Darwinism.
If by due process of law the Supreme Court of the United States means the right and opportunity of a member of the proscribed organizations to defend himself on the ground that he personally and individually does not, in fact, believe in the forcible overthrow of the government, and that he contemplates no overt act to accomplish such a result, our answer to the remand should be that the act affords no such hearing and permits no such defense. I do not agree with the majority opinion’s representation to the contrary.
I dissent.
June 8, 1961. Petition for rehearing denied.