However The Florida Bar recently disclosed it does not have section 876.05 loyalty oaths for its employees. Therefore, on information and personal belief, The Florida Bar is a "subversive organization" within the meaning of Chapter 876, Florida Statutes, Criminal Anarchy, Treason, and Other Crimes Against Public Order, and "shall be dissolved" as provided by section 876.26, Fla.Stat.
876.26 Unlawful for subversive organizations to exist or function.—
"It shall be unlawful for any subversive organization or foreign subversive organization to exist or function in the state and any organization which by a court of competent jurisdiction is found to have violated the provisions of this section shall be dissolved,..."
Florida Jurisprudence 2d, Volume 9, Civil Servants, § 111 Loyalty Oaths (2007)
All public employees are required to take an oath to support the Constitution of the United States and of the State of Florida. [fn1] An employee who refuses to take the required loyalty oath must be discharged. [fn2].
The oath's requirement for pledging to support the state and federal Constitutions is constitutionally valid. [fn3] Although the oath refers to the affirmant as being a citizen of the United States and State of Florida, [fn4] to ban lawful aliens from public employment is unconstitutional and aliens may use a modified oath with the words "a citizen of the State of Florida and of the United States of America" stricken. [fn5]
Fn1. § 876.05(1), Fla. Stat.
Fn2. § 876.06
Fn3. Connell v. Higginbotham, 403 U.S. 207, 91 S. Ct. 1772, 29 L. Ed. 2d 418 (1971).
Fn4. § 876.05(1), Fla. Stat.
Fn5. City of Orlando v. State of Fla., 751 F. Supp. 974 (M.D. Fla. 1990).
CONNELL v. HIGGINBOTHAM ET AL. 403 U.S. 207 (1971)
No. 79. Supreme Court of United States.
Argued November 19, 1970
Decided June 7, 1971
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
Sanford Jay Rosen argued the cause for appellant.
With him on the brief were Tobias Simon and Melvin L. Wulf.
Stephen Marc Slepin argued the cause for appellees.
With him on the brief were Rivers Buford, Jr., and James W. Markel.
This is an appeal from an action commenced in the United States District Court for the Middle District of Florida challenging the constitutionality of §§ 876.05-876.10 of Fla. Stat. (1965), and the various loyalty oaths upon which appellant's employment as a school teacher was conditioned. The three-judge U. S. District Court declared three of the five clauses contained in the oaths to be unconstitutional,[*] and enjoined the State from conditioning 208*208 employment on the taking of an oath including the language declared unconstitutional. The appeal is from that portion of the District Court decision which upheld the remaining two clauses in the oath: I do hereby solemnly swear or affirm (1) "that I will support the Constitution of the United States and of the State of Florida"; and (2) "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."
On January 16, 1969, appellant made application for a teaching position with the Orange County school system. She was interviewed by the principal of Callahan Elementary School, and on January 27, 1969, appellant was employed as a substitute classroom teacher in the fourth grade of that school. Appellant was dismissed from her teaching position on March 18, 1969, for refusing to sign the loyalty oath required of all Florida public employees, Fla. Stat. § 876.05.
The first section of the oath upheld by the District Court, requiring all applicants to pledge to support the Constitution of the United States and of the State of Florida, demands no more of Florida public employees than is required of all state and federal officers. U. S. Const., Art. VI, cl. 3. The validity of this section of the oath would appear settled. See Knight v. Board of Regents, 269 F. Supp. 339 (1967), aff'd per curiam, 390 U. S. 36 (1968); Hosack v. Smiley, 276 F. Supp. 876 (1967), aff'd per curiam, 390 U. S. 744 (1968); Ohlson v. Phillips, 304 F. Supp. 1152 (1969), aff'd per curiam, 397 U. S. 317 (1970).
The second portion of the oath, approved by the District Court, falls within the ambit of decisions of this Court proscribing summary dismissal from public employment without hearing or inquiry required by due process. Slochower v. Board of Education, 350 U. S. 551 209*209 (1956). Cf. Nostrand v. Little, 362 U. S. 474 (1960); Speiser v. Randall, 357 U. S. 513 (1958). That portion of the oath, therefore, cannot stand.
Affirmed in part, and reversed in part.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE BRENNAN join, concurring in the result.
The Florida Constitution, Article V, Section 15, provides,
Attorneys; admission and discipline.—The supreme court shall have exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted.The Florida Board of Bar Examiners is a Florida Supreme Court agency that regulates the admission of persons to the practice of law in Florida. The Florida Bar is a Supreme Court agency that disciplines persons admitted to practice law in the state of Florida.
Florida Bar Bylaw 2-4.3 Duties of the Executive Director, states "The executive director shall keep the records of The Florida Bar and the board of governors."
Sections 876.05 through 876.10 of the Florida Statutes govern loyalty oaths by employees of the state of Florida, and are found in Chapter 876, CRIMINAL ANARCHY, TREASON, AND OTHER CRIMES AGAINST PUBLIC ORDER.
876.26 Unlawful for subversive organizations to exist or function.—It shall be unlawful for any subversive organization or foreign subversive organization to exist or function in the state and any organization which by a court of competent jurisdiction is found to have violated the provisions of this section shall be dissolved, and if it be a corporation organized and existing under the laws of the state, a finding by a court of competent jurisdiction that it has violated the provisions of this section shall constitute legal cause for forfeiture of its charter and its charter shall be forfeited, and all funds, books, records, and files of every kind and all other property of any organization found to have violated the provisions of this section shall be seized by and for the state, the funds to be deposited in the State Treasury, and the books, records, files, and other property to be turned over to the Attorney General of Florida.
876.05 Public employees; oath.—
(1) 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, except candidates for federal office, are 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, [John F. Harkness], a citizen of the State of Florida and of the United States of America, and being employed by or an officer of [The Florida Bar] 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.(2) 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.
876.06 Discharge for refusal to execute.—If any person required by ss. 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 or her 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.
876.08 Penalty for not discharging.—Any 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 ss. 876.05-876.10, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
876.09 Scope of law.—
(1) The provisions of ss. 876.05-876.10 shall apply to all employees and elected officers of the state, including the Governor and constitutional officers and all employees and elected officers of all cities, towns, counties, and political subdivisions, including the educational system.
(2) This act shall take precedence over all laws relating to merit, and of civil service law.
876.10 False oath; penalty.—If any person required by the provisions of ss. 876.05-876.10 to execute the oath herein required executes such oath, and it is subsequently proven that at the time of the execution of said oath said individual was guilty of making a false statement in said oath, he or she shall be guilty of perjury.