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Gough v. State

November 17, 1995

STEPHEN JOHN GOUGH, PLAINTIFF-APPELLANT,
v.
STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.

Approved for Publication November 17, 1995.

Before Judges King, Landau and Kleiner. The opinion of the court was delivered by King, P.j.a.d.

The opinion of the court was delivered by: King

The opinion of the court was delivered by KING, P.J.A.D.

I.

Appellant unsuccessfully challenged the statutory oath of allegiance required of school teachers in this State. N.J.S.A. 41:1-1; N.J.S.A. 18A:26-9. He now appeals from the Law Division judgment in favor of the State and claims that New Jersey's traditional statutory oath of allegiance is an unconstitutional threat to his rights of free speech, association, assembly and petition for redress of grievances. We disagree and affirm. We conclude that the traditional statutory oath does not violate the State and federal constitutional rights of speech and expression or inhibit political beliefs or activities.

II.

In September 1991, appellant Gough applied for a substitute-teaching position in the public school system in Neptune Township, Monmouth County. As part of the application requirements, pursuant to N.J.S.A. 18A:6-7 *fn1, N.J.S.A. 18A:26-9, *fn2 and their implementing regulations, N.J.A.C. 6:11-3.9(a) and N.J.A.C. 6:11-4.5(b), appellant was required to sign an oath of allegiance, which states:

I, ...., do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of New Jersey, and that I will bear true faith and allegiance to the same and to the Governments established in the United States and in this State, under the authority of the people. * So help me God. (* Not mandatory).

[N.J.S.A. 41:1-1.]

Appellant apparently added to the oath, "qualifying" it before he signed it. His qualifying amendments to the oath are not in the record before us.

Appellant claims that he was interviewed by Assistant Superintendent James Terrell in October 1991 and was "led to believe that eventually [he] would be called to substitute teach." At Terrell's recommendation, appellant spent a day observing classes at Neptune Middle School.

Appellant was never called to substitute teach. He claims that in February 1992 he went to Terrell's office to inquire about his status. Appellant tells us that Terrell's secretary informed him that his application had been approved by the Neptune Township Board of Education in October. However, the secretary allegedly stated that Terrell "voided" appellant's application in December because of the additions appellant made to the oath. Terrell's secretary also allegedly informed appellant that the oath was the only deficiency in his application.

Appellant claims that on two subsequent occasions, in February and May 1992, he contacted Terrell, who provided him with the statutory references to the oath requirement and with the name and address of the State Department of Education's Certification Clerk, Ida Graham. Appellant said that he then began to research the law regarding the oath requirement.

By October 22, 1992 letter, appellant informed Graham about his situation and claimed that he felt "that [he] took reasonable action when faced with the oath form." Appellant also stated that "I believe the oath requirement as presently worded infringes the right to expression of Dissent against government, and I still would like to be a substitute teacher and perhaps eventually a full-time teacher." Appellant then asked two questions in the letter: first, whether the statute prohibited an applicant from varying the wording of the oath; second, he asked "if I now, or in the future in conjunction with an otherwise up-to-date and approved application, properly execute the oath .... that I would receive the teaching certification; is that correct?"

By November 25, 1992 letter, Graham responded (1) "it is correct that the oath of allegiance is statutory and must be enforced accordingly and (2) a properly executed oath is required for the issuance of a certificate." Neither the State's brief nor appellant's brief tell us whether appellant made any further efforts to obtain the substitute-teaching certificate. However, appellant asserts in his brief that he "has been informed that if at some future time, he properly executes the required statutory affirmation/oath, then the teaching certificate will be issued."

Appellant filed this complaint in the Law Division on July 30, 1993 seeking a declaratory judgment "that [N.J.S.A. 41:1-1 *fn3 and - 3 *fn4] are unconstitutional and, specifically, that they violate at least the First and Fourteenth Amendments of the U.S. Constitution, and probably also the Fifth and Ninth Amendments." In September the State moved to dismiss the complaint for failure to state a claim or in the alternative for summary judgment. Judge Ferren heard argument on November 5, 1993. Appellant argued that (1) a public employee "retains a right to express [Dissent] against the Government," (2) the oath infringes First Amendment rights; (3) as a result of his "amendments" to the oath, he was denied employment in breach of the State's duty to honor "federally guaranteed rights;" and (4) the oath is vague because it does not "indicate what sort of conduct is prohibited or required."

Appellant also argued the perjury issue. He contended that his fears are not chimerical and that the oath "is taken under the threat of the penalty of perjury for falsely subscribing to the oath." Acknowledging that there has been no recent history of prosecutions for perjury relating to oath-taking, appellant reminded the court of the political environment of the 1950's and of the so-called McCarthy Era "red-baiting" and argued that it "can go on again." Appellant also reminded the motion Judge that, as of 1962, "attorneys were no longer required to [take the oath]." Appellant further recalled to the court that in 1967 the Attorney General of New Jersey had recommended that the oath be narrowed to require support of the federal and State constitutions only. Appellant also claimed that the wording of the oath was vague and indefinite, violating "substantive due process."

The Law Division Judge observed accurately that appellant was not contesting "that portion of the oath that deals with, 'I will support the Constitution of the United States and the Constitution of the State of New Jersey.'" The Judge recognized that appellant challenged only the portion of the oath which stated, "I will bear true faith and allegiance to the same, and to the Governments established in the United States and in this State, under the authority of the people."

The Judge ruled that appellant's reliance on Baggett v. Bullitt, 377 U.S. 360, 84 S. Ct. 1316, 12 L. Ed. 2d 377 (1964), was misplaced and that Hosack v. Smiley, 276 F. Supp. 876 (D. Colo. 1967), aff'd, 390 U.S. 744, 88 S. Ct. 1442, 20 L. Ed. 2d 275 (1968), controlled. The Judge also recalled our opinion in Imbrie v. Marsh, 5 N.J. Super. 239, 68 A.2d 761 (App. Div. 1949), aff'd, 3 N.J. 578, 71 A.2d 352 (1950), in which we recited the history and meaning of loyalty oaths. He ruled that appellant's fear that the oath "will impinge upon his First and Fourteenth Amendment rights" was unfounded and dismissed the complaint for failure to state a claim. R. 4:6-2; R. 4:46-2.

IIIA. - The State Law

This State's first loyalty oath was adopted on September 19, 1776 (1776 oath), and required the affiant to "profess and swear, (or, if one of the People called Quakers, affirm) That I do and will bear true Faith and Allegiance to the Government established in this State under the Authority of the People. So help me God." P.L. 1776, c. 2; Imbrie v. Marsh, 3 N.J. 578, 581, 71 A.2d 352 (1950) (Case and Oliphant, Justices, Dissenting). Notably, the 1776 oath, with the addition of "United States," is essentially the same text that appellant is challenging in the present case.

In 1799, the Legislature enacted a law requiring "every person who is or shall be required by law" to take an oath "of fidelity and attachment to the government of this State" which encompassed the wording of the 1776 oath. Id. at 606 (dissenting opinion). The 1799 law also designated those required to take the oath, including the Governor "for the time being," all elected officials, attorneys, jurors and teachers. Interestingly, the statute provided:

That if any schoolmaster or usher shall neglect or refuse to take and subscribe the said oath of allegiance, for the space of one month after he enters upon the duties of his profession, he shall, for every week after the expiration of the said month that he continues to keep school or teach as an usher, until he shall take and subscribe the said oath, forfeit four dollars, to be recovered by action of debt, with costs, by any person, who will sue for the same.

[P.L. 1799 (Paterson's Laws 376, Sections 1 and 2); Imbrie, supra, 3 N.J. at 607 (dissenting opinion).]

This oath was "carried forward through successive revisions and compilations into the Revised Statutes of 1937, 41:1-1, N.J.S.A." Id. at 581-82. The oath underwent several changes between 1949 and 1971. In 1949, during the beginning of what later became known as the "red-baiting McCarthy Era" and the early Cold War period, the Legislature amended the oath. The amended oath began with the still-current language requiring the affiant to:

Solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of New Jersey, and that I will bear true faith and allegiance to the same and to the Governments established in the ...


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