Callender v. County of San Diego

McCABE, J. pro tem.

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Petitioner Callender appeals from a judgment denying a writ of mandate whereby he seeks reinstatement as a permanent civil service employee of the respondent county of San Diego.

Petitioner was employed intermittently by respondent county during the period March 11, 1940, to November 31, 1940, and from January 16, 1941, to May 11, 1954, was employed continuously as a laborer or tree surgeon and later as a park warden in the classified civil service. Having been subpoenaed to appear before a subcommittee of the Committee on un-American Activities of the House of Representatives, United States Congress, petitioner appeared before that sub

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committee about April 20, 1954. At this hearing questions were asked of petitioner. Certain of these questions he refused to answer, basing his refusal on his rights under the First and Fifth Amendments to the Constitution of the United States. Some of the questions petitioner refused to answer pertained to alleged membership in the Communist Party.

On May 11, 1954, petitioner was removed by the director of public works from his position as park warden at Live Oak for insubordination in that petitioner on April 20, 1954, had refused to comply with an order made April 13, 1954, by the respondent Board of Supervisors of the County of San Diego, and in refusing to perform a duty imposed upon him by section 1028.1, Government Code of the State of California. Petitioner, on May 13, 1954, appealed to the respondent civil service commission, which appeal was heard May 22 and August 12, 1954. Petitioner and his attorney were present at the hearing. Petitioner’s evidence was submitted to the respondent commission by way of stipulation. Essentially, the stipulation contained the facts as set forth above but in addition thereto the efficiency ratings of the petitioner were received into evidence. At the- hearing before the respondent commission, petitioner was not questioned concerning his political affiliations or whether he was or had been a member of the Communist Party, and no questions were asked which were within the purview of the order of the board of supervisors adopted April 13, 1954 or of section 1028.1 of the Government Code. At the hearing before the respondent commission petitioner expressed his willingness to answer any and all questions which might be addressed to him, but no questions were so addressed. Upon the completion of the hearing and on August 23, 1954, the respondent commission entered its findings and made its decision affirming the order of the director of public works removing petitioner from his position in the classified service of the respondent county. So far as the record is concerned, petitioner took no legal action until November 13, 1956, when he filed his petition for writ of mandate.