Bаrbara ELFBRANDT, for herself and others similarly situated, Appellants, v. Imogene R. RUSSELL, L. E. Bool and Martha L. Elliott, members of the Board of Trustees of Amphitheater Elementary School District No. 10, Pima County, State of Arizona, et al., Appellees.
No. 7406
Supreme Court of Arizona. En Banc.
Dec. 30, 1964
Rehearing Denied Feb. 17, 1965
397 P.2d 944
Robert W. Pickrell, Atty. Gen., and Philip M. Haggerty, Asst. Atty. Gen., Phoenix, for appellees.
S. Leonard Scheff and Robert J. Hirsh, Tucson, for amicus curiae Arizona Civil Liberties Union.
Amelia D. Lewis, Sun City, and Jay Dushoff, Phoenix, for amicus curiae Arizona Civil Liberties Union (Northern Arizona Chapter).
STRUCKMEYER, Justice.
This case arises out of the refusal of Barbara Elfbrandt, a teacher in the public schools at Tucson, Arizona, to subscribe to the oath required by the Arizona Communist Control Act оf 1961 of all public officers and employees. In our decision, Elfbrandt v. Russell, 94 Ariz. 1, 381 P.2d 554 (May 1, 1963), we summarily disposed of the issue of the asserted vagueness in the Arizona act with the statement that it “does not have the unconstitutional vice of vagueness and indefiniteness in placing an accused on trial for an offense, the na-
The Arizona oath,2 with insignificant changes, has been used in the Territory and the State of Arizona for over one hundred years. An oath of allegiance in part couched in nearly identical language is required by Congress of those seeking citizenship by naturalization.3 Plainly, the Arizona oath is no more than a restatement of the duties of citizenship, an express engagement to which all who are afforded the proteсtive cloak of the Constitution and laws of this country and state are irrevocably bound.
The Washington oath4 did not by its language confine the taker to the undertakings of citizenship and the faithful and impartial discharge of the duties of an office. It offended because it “is not open to one or a few interpretations, but to an indefinite number” аnd that only “extensive adjudications, under the impact of a variety of factual situations, would bring the oath within the bounds of permissible constitutional certainty.” Baggett v. Bullitt, 377 U.S. 360, 378, 84 S.Ct. 1316, 1326, 12 L.Ed.2d 377.
We recognize that the words “true faith and allegiance“, “defend“, and “faithfully and impartially” in the context in which they are used range high in the level of abstractions. But Arizоna‘s gen-
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- Commit any act to overthrow by force or violence the government of this state or any of its political subdivisions;
- Aid in the commission of any act to overthrow by force or violence the government of this state or any of its political subdivisions;
- Advocate the overthrow by force or violence of the government of this state or any of its political subdivisions;
- Become knowingly and wilfully a member of the Communist Party of the United States or its successors or any of its subordinate organizations or any other organization having for one
of its purposes the overthrow by force or violence of the government of the State of Arizona or any of its political subdivisions and prior to becoming a member of such organization, or organizations, had knowledge of the unlawful purpose of the organization, or organizations; - Remain knowingly and wilfully a member of the Communist Party of the United States or its successors or any of its subordinate organizations or any other organization having for one of its purposes the overthrow by force or violence of the government of the State of Arizona or any of its political subdivisions and prior to becoming a member of such organization, or organizations, had knowledge of the unlawful purpose of the organization, or organizations.
The commission of any of these acts at the time of taking the oath or thereafter by a public officer or employee is declared to be a felony punishable in the same manner as рerjury. Were we to consider, which we do not, any part of
If we correctly understand the opinion of the Supreme Court of the United States in Baggett, it is the susceptibility of a statute to thе interpretation of required forswearing of an undefinable variety of “guiltless knowing behavior” which is condemned, Cramp v. Board of Public Instruction, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285. In this we think there is a vital distinction between the Washington act6 and the Arizona act. Arizona does not seek to punish one who advises, teaches or abets or advocates by any mеans any person to commit or aid in the commission of any act intended to overthrow or alter, or to assist in the overthrow or alteration, of the constitutional form of government by revolution, force or violence. Arizona punishes those who commit or aid in the commission of an act to overthrow the government by force or violence. The act cannot be innocently committed or aided for the legislature has provided that it must be done “know-
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Moreover, the act must be such as will apparently result in the usual and natural course of events, if not hindered by extrаneous causes, in the overthrow of the government by force and violence. Preparation alone is not enough; there must be some appreciable fragment of the crime committed, and it must be in such progress that it will be consummated unless interrupted by circumstance independent of the will of the attempter, State v. Mandel, supra. Cf. People v. Camodeca, 52 Cal.2d 142, 338 P.2d 903.
In this state there is no distinction between accessories before the fact and principals.
Since both the act and the aiding referred to in the statute must be in at-
It is our conclusion that the portions of the Arizona act here considered do not forbid or require conduct in terms so vague that men of common intelligencе must necessarily guess at the meaning and differ as to their application.
The judgment of the superior court is ordered reinstated.
UDALL, C. J., LOCKWOOD, V. C. J., and SCRUGGS, J., concur.
BERNSTEIN, Justice (dissenting).
In my concurring opinion in the original decision in this case I stated that the statute would be constitutional only if it provided for a hearing which complied with the requirements of procedural due process and at which the State had the burden of prоving the disloyalty of those excluded from public employment. My analysis of Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377, now convinces me that such a hearing could not save the constitutionality of the Arizona statute.
The majority ignores the troublesome clauses of
“Is it subversive activity, for example, to attend and participate in international conventions of mathematicians and exchange views with scholars from Communist countries?” Baggett v. Bullitt, 377 U.S. at 369, 84 S.Ct. at 1321.
“It will not do to say thаt a prosecutor‘s sense of fairness and the Constitution would prevent a successful perjury prosecution for some of the activities seemingly embraced within the sweep-ing statutory definitions. The hazard of being prosecuted for knowing but guiltless behavior nevertheless remains. ‘It would be blinking reality not to acknowledge that thеre are some among us always ready to affix a Communist label upon those whose ideas they violently oppose. And experience teaches us that prosecutors too are human.‘” Baggett v. Bullitt, 377 U.S. at 373, 84 S.Ct. at 1323.
In such a case even approval of his membership in the organization by the United States State Department could not assure him that he would not be prosecuted, as this is a state criminal statute.
“Those with a conscientious regard for what they solemnly swear or affirm, sensitive to the perils posed by the oath‘s indefinite language, avoid the risk of loss of employment, and perhaps profession, only by restricting their conduct to that which is unquestionably safe.” Baggett v. Bullitt, 377 U.S. at 372, 84 S.Ct. at 1323.
Free association may not be so inhibited. In view of the direction of the United States Supreme Court that we reconsider this case in the light of what was said in Baggett, I do not discuss the violence done by this statute in hampering the right of free association guaranteed by the First Amendment.
I respectfully dissent.