GIBSON, C. J. I dissent.
There is nothing in this case to justify a conclusion that plaintiff can be denied reinstatement on the theory that he did not show clean hands in the trial court, and, since the record of the proceeding before the union discloses that plaintiff’s expulsion was wrongful, the judgment should be reversed.
The theory that plaintiff lacked clean hands is not argued by the parties, and neither the findings nor the conclusions of the trial court support it.1 Findings are required in mandamus proceedings in the superior court when there are questions of fact. (Code Civ. Proc., §§ 1109, 632; Treu v. Kirkwood,, 42 Cal.2d 602, 611-613 [268 P.2d 482]; Lassen v. City of Alameda, 150 Cal.App.2d 44, 48 [309 P.2d 520]; Delany v. Toomey, 111 Cal.App.2d 570, 571-572 [245 P.2d 26]; Beloin v. Blankenhorn, 97 Cal.App.2d 662, 664 [218 P.2d 552] ; see 2 Witkin, California Procedure (1954) 1833-1834.) Not only is there an absence of a finding upon this question but also, as we shall see, the evidence is insufficient to show that plaintiff lacked clean hands.
The only factors suggested by the majority opinion as indi[814]eating lack of clean hands are plaintiff’s refusal in the superior court to answer the question whether he was “ever” a member of the Communist Party, his failure to offer in that court any evidence of his eligibility for union membership, and his “apparent lack of candor throughout his testimony.” While plaintiff’s failure and refusal to testify in the trial court on these matters may be relevant on the issue of damages, this conduct has no bearing upon whether he is entitled to an order setting aside a wrongful expulsion. Insofar as concerns plaintiff’s right to reinstatement, the subject matter as to which plaintiff refused or failed to testify involved questions of fact which were to be determined solely by the union, and, if the evidence before the union is insufficient to support the expulsion, the trial court cannot properly uphold the union’s decision by relying on evidence not considered by the union.
The function of a superior court in reviewing the expulsion of a union member is to ascertain whether the member had a fair trial by the union’s fact-finding body, including consideration of whether there was evidence before that body to support the charges made against the member and whether the charges constituted legally recognizable grounds for expulsion; the trial court may not reweigh the evidence before the union or receive additional evidence or pass upon the truth of the charges made, and, if it appears that the plaintiff did not have a fair trial before the union, the expulsion must be set aside, and further proceedings, if any, to determine the facts must be conducted by the union, not by the court. (See Cason v. Glass Bottle Blowers Assn., 37 Cal.2d 134, 143-144, 147 [231 P.2d 6, 21 A.L.R.2d 1387] ; Miller v. International Union etc. Engineers, 118 Cal.App.2d 66, 70 [257 P.2d 85] ; Taylor v. Marine Cooks & Stewards Assn., 117 Cal.App.2d 556, 565 [256 P.2d 595] ; Bush v. International Alliance of T. Stage Emp., 55 Cal.App.2d 357, 363 [130 P.2d 788]; Ellis v. American Federation of Labor, 48 Cal.App.2d 440, 445 [120 P.2d 79]; McConville v. Milk W. D. Union, 106 Cal.App. 696, 697-698 [289 P. 852]; cf. Smith v. Kern County Medical Assn., 19 Cal.2d 263, 265 [120 P.2d 874]; Bernstein v. Alameda etc. Medical Assn., 139 Cal.App.2d 241, 253 [293 P.2d 862].) Plaintiff, of course, must make out a case for mandate, but he does so if he shows that he did not have a fair hearing before the union because the evidence presented there did not support the charges made or the charges were insufficient to justify expulsion.
These principles will be defeated if a trial court, under the [815]guise of passing upon the plaintiff’s “clean hands,” is permitted to receive evidence upon and make determinations of fact as to charges against a union member which are within the exclusive province of the union’s fact-finding body. Plaintiff’s refusal at trial to answer the question whether he was ever a Communist and his asserted failure to produce evidence there that he had eligibility for union membership fall within this category. The same is true of plaintiff’s asserted lack of candor insofar as it concerns his right to reinstatement.2 Since these are matters to be determined by the union, not by the court, it is difficult to see how plaintiff’s conduct at trial shows that he lacked clean hands; he merely refused to go into factual matters which were inappropriate to a judicial review of his expulsion.
It is important to note, in connection with the above discussion, that an affirmative answer to the question whether plaintiff was “ever” a member of the Communist Party would not, without more, show a ground for expulsion under the union’s oath provision which he is charged with having violated. Under any reasonable interpretation of the oath plaintiff was not subject to discipline on the ground that he was “ever” a member of, or aided, a “Revolutionary Organization” or one which tried to disrupt the union, but he could be expelled only if he ivas a member of or supported such a group at the time he took the oath or thereafter. Although the union’s fact-finding body might be entitled to require an answer to a question of this nature under an extension of the principles which permit such a question as a means of investigating charges against school teachers and other public employees (see Board of Education v. Mass, 47 Cal.2d 494 [304 P.2d 1015]; Steinmetz v. California State Board of Education, 44 Cal.2d 816 [285 P.2d 617]), the right to make such an investigation lies exclusively in the union and not with the courts. Any other conclusion would permit the trial court to weigh evidence and make findings that would be binding on [816]the union when such functions should be performed only by that organization.
The union obviously had the burden of showing at its hearing that plaintiff had lost his eligibility to remain a member, whereas the view that in the trial court a plaintiff must affirmatively show his eligibility has the unfortunate and improper effect of shifting the burden on this issue to the plaintiff even if he shows that insufficient evidence was produced at the union hearing. Under such a rule a union could gain an unfair advantage by making a weak showing at the expulsion hearing, possibly deliberately, thus forcing the plaintiff not only to establish in the superior court that the union’s trial was unfair but also to show by a preponderance of the evidence that he had not lost his eligibility.
The view that plaintiff does not have the burden of proof is supported in principle by the recent decision of Speiser v. Randall, 357 U.S. 513, 520 et seq. [78 S.Ct. 1332, 2 L.Ed.2d 1460], where the United States Supreme Court, after assuming without deciding that California may deny tax exemptions to persons who engage in advocating overthrow of the government by force, held that the allocation to the taxpayer of the burden of proof upon such an issue concerning free speech constituted a denial of due process. The court .pointed out that where the burden of proof lies may be decisive of the outcome.3 (357 U.S. at p. 525.) Plaintiff, of course, may be expelled only for cause after a fair hearing, and, by analogy to the Speiser ease, the hearing would not be fair if the accused member were required to sustain the burden of showing that he had not lost his eligibility.
It follows from the foregoing that plaintiff’s asserted lack of clean hands cannot properly be relied upon as a reason for not passing upon his contentions that the charges and the evidence presented to the union are insufficient to justify his expulsion.
In considering whether the proceedings before the union justified the ouster, it must be kept in mind that, regardless of what disciplinary rules a union might legally adopt, a court, when reviewing the charges and evidence against an [817]expelled member, is limited to a consideration of the rules and regulations actually made by the union. Here the charges against plaintiff are confined to a violation of the oath provision.4 It is necessary first to ascertain the meaning of the oath, being careful not to extend the requirement beyond what it purports to be.
The oath in substance proscribes membership in, or the giving of support to, either of two types of organizations: (1) any “Revolutionary Organization” and (2) any organization which tries to-“disrupt or cause dissension” in the carpenters’ union. The charges of which plaintiff was found to be guilty appear to relate solely to his asserted connection with organizations coming within the first of these two classes. The words “Revolutionary Organization” should be interpreted to mean any organization which advocates overthrow of the government by force and violence, and, in the absence of a specific definition of the term by the union, it would be unreasonable to give these words a more extensive meaning when applying them as a basis for expulsion in a case such as this. In addition, by analogy to the decisions of the United States Supreme Court and of this court relating to statutory oaths exacted of governmental employees, the oath should be interpreted to require knowledge by the union member of the character of the proscribed organization before his conduct in aiding the organization can be used as a basis for expulsion from the union. (Cf. Wieman v. Updegraff, 344 U.S. 183 [73 S.Ct. 215, 97 L.Ed. 216] ; Adler v. Board of Education, 342 U.S. 485, 494 [72 S.Ct. 380, 96 L.Ed. 517, 27 A.L.R.2d 472] ; see distinction noted in Steinmetz v. California State Board of Education, 44 Cal.2d 816, 823-824 [285 P.2d 617].) It must also be kept in mind that the oath does not refer to a union member’s activities prior to the time he took it.
In my view the evidence before the union as set forth in the majority opinion, even if the hearsay character of that evidence could be disregarded, is not sufficient to establish that plaintiff violated the oath, properly construed. The showing made does not reasonably warrant the conclusion that plaintiff supported any organization which, to his knowledge, advocated the overthrow of the government by force and violence. Nor was it shown at the union hearing that the conduct in question occurred at a time coming within the prohibition of [818]the oath, since there was no evidence as to when, if ever, plaintiff took the oath.
Moreover, all the evidence offered against plaintiff at the union hearing was hearsay not falling within any applicable exception to the hearsay rule, and a person cannot properly be expelled solely on the basis of such evidence. (Cf. Steen v. Board of Civil Service Commrs., 26 Cal.2d 716, 726-727 [160 P.2d 816] ; Walker v. City of San Gabriel, 20 Cal.2d 879, 881-882, 885 [129 P.2d 349, 142 A.L.R 1383] ; Armistead v. City of Los Angeles, 152 Cal.App.2d 319, 324 [313 P.2d 127].) This difficulty is not obviated by the fact that plaintiff did not object when the evidence was received. The refined and technical practices which have developed in the courts are not imposed upon deliberations of workingmen (Cason v. Glass Bottle Blowers Assn., 37 Cal.2d 134,143 [231 P.2d 6, 21 A.L.R 2d 1387]), and it is obvious that under this rule hearsay was admissible and that objections to its admissibility would have been unavailable. Furthermore, after the case against him had been presented, plaintiff moved for a dismissal of the charges and relied on the hearsay character of the evidence as a ground for his motion. Even if the motion were not regarded as a sufficient objection to the taking of action on the basis of hearsay alone, a failure to object in an informal proceeding where technical rules are inapplicable should not be given the same effect as where a court trial is involved. Accordingly, plaintiff cannot be held to have waived his right to complain that the expulsion was based entirely on hearsay evidence.
The lack of proof warranting the expulsion cannot be ignored on the theory that plaintiff failed to make adequate denials and thus admitted the charges and the activities sought to be proved. The transcript of the hearing discloses that he pleaded not guilty to the charges and that he introduced evidence in an effort to show that some of the evidence relied upon by his accusers was untruthful. Further, in a statement made at the close of the proceeding, plaintiff said, “Now, I could go down the line and answer or refute these things, I think I could, but I don’t feel that it is right for me to. I don’t think I should, because they haven’t proven anything.” Under these circumstances it would be unreasonable to treat plaintiff’s conduct at the hearing as amounting to admissions which cured the defects in the case against him.
I would reverse the judgment.
Traynor, J., concurred.
It is true, as pointed out by the majority, that the trial judge made a statement to the effect that if “it is shown that because of some impediment at the time [plaintiff] could not be a member of the union, then the court would be unable to order . . . his reinstatement, even though expulsion had been improper. ’ ’ However, this statement was made in the course of trial during a discussion between court and counsel as to whether plaintiff was required to answer if he had ever been a member of the Communist Party, and it was immediately followed by the judge’s query, “Is that true?” and, after further discussion, by his remark, “I think it goes to the credibility of the witness, to the matter of damages also.” Under these circumstances, particularly in the absence of any finding or conclusion indicating that the court’s refusal to issue mandate was based on a lack of clean hands, the statement in question cannot properly be construed as showing that the court relied on such a theory.
Plaintiff’s asserted lack of candor, including his equivocal testimony as to his loss of earnings, may have been properly considered by the trial court insofar as it related to the issue of damages, but this could not affect his right to reinstatement. Misconduct claimed to. result in lack of clean hands will not bar relief unless it is closely connected with the matter in which the plaintiff seeks equitable assistance and is of such a prejudicial nature to the rights of another that it would be inequitable to grant him that assistance. (Bradley Co. v. Bradley, 165 Cal. 237, 242 [131 P. 750]; see Dominguez v. Dominguez, 136 Cal.App.2d 17, 20-2] [288 P.2d 195].)
The United States Supreme Court also declared that since only considerations of the greatest urgency can justify restrictions on speech, and since the validity of a restraint on speech in each case depends on careful analysis of the particular circumstances, the procedures by which the facts of the case are adjudicated are of special importance, and the validity of the restraint may turn on the safeguards which they afford. (357 U.S. at p. 521.)
The advising of each new member that the union ‘ ‘ did not recognize the Communist Party as a political organization ’ ’ is of little help in this connection as it does not purport to prohibit any activity by the members.