Elfbrandt v. Russell

• Decision Date: 01 May 1963
• Docket Number: No. 7406,P,No. 10,10,7406
• Citation: 381 P.2d 554,94 Ariz. 1
• Parties: Barbara 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,ima County, State of Arizona, et al., Appellees.
• Court: Arizona Supreme Court

Page 554

381 P.2d 554

94 Ariz. 1

Barbara 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, In Banc.

May 1, 1963.

Rehearing Denied May 28, 1963.

Morgan & Rosenberg, Tucson, for appellants

Robert W. Pickrell, Atty. Gen., Philip M. Haggerty, Asst. Atty. Gen., and Harry Ackerman, Pima County, Atty., for appellees.

STRUCKMEYER, Justice.

Appellant as a teacher in the Arizona Public School System at Tucson is required by A.R.S. § 38-231 and § 38-233 as amended by Chapter 108, Laws of 1961 to subscribe to the oath required of all public officers and employees [See Appendix]. This she has refused to do. She brings this action for herself and for others similarly situated seeking a declaration that the Arizona Officers and Employees Loyalty Oath deprives her of rights guaranteed under the state and federal constitutions. The cause was submitted to the lower court on stipulated facts and the appeal is from its judgment holding the challenged portions of the amended statutes constitutional.

From the time of this State's inclusion as a territory in 1863 every public officer as a condition of employment and before entering upon the duties of his office has been required to take and subscribe to an oath differing but slightly from that now specified in A.R.S. § 38-231. The territorial oath was in this language:

'I, _____, do solemnly swear that I will support the Constitution of the United States and the laws of this Territory; that I will true faith and allegiance We pause here only to note that because the Arizona Declaration of Rights, Art. 2, § 7, Constitution of Arizona, A.R.S., permits public officers and employees to either swear or affirm in a manner most consistent with and binding upon the conscience of the person, the compulsive subscription does not impinge on religious or conscientious scruples.

bear to the same, and defend them against all enemies whatsoever, and that I will faithfully and impartially discharge the duties of the office of (name of office) according to the best of my abilities, so help me God.' Chaper XXV Sec. 4, Howell's Arizona Code, 1864.

As a generality, it can be said that qualifications for public officers and employees of the state may be fixed by the legislature where not otherwise prescribed by the State Constitution. McCarthy v. State ex rel. Harless, 55 Ariz. 328, 101 P.2d 449; Campbell v. Hunt, 18 Ariz. 442, 162 P. 882. The power to prescribe qualifications of public officers and employees is essential to the independence of the states and to their peace and tranquility and should be free from external interference unless conflicting with the Constitution of the United States. Taylor v. Beckham, 178 U.S. 548, 20 S.Ct. 890, 44 L.Ed. 1187. Where there are suitable reasons, positions of public importance may be denied to groups of persons identified by their particular interests. Board of Governors of Federal Reserve System v. Agnew, 329 U.S. 441, 67 S.Ct. 411, 91 L.Ed. 408. We do not doubt that the legislature in order to preserve the integrity of the public service and safeguard it from disloyalty may enact statutes designed to reasonably attain those ends. Loyalty may be a prescribed qualification for the holding of public employment. Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517, 27 A.L.R.2d 472.

Under constitutional government oaths similar in context to that here have been considered as an appropriate means to bind the individual. As has often been pointed out the President of the United States is required to take this oath or affirmation:

'I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the bast of may Ability, preserve, protect and defend the Constitution of the United States.' Constitution of the United States, Art. 2, Sec. 1.

For centuries the oath was a pledge of fealty to the king. It does 'not increase the civil obligation to loyalty; it only strengthens the social tie by uniting it with that of religion.' 1 Blackstone's Commentaries (16th Ed.) 369. It is considered as an expression of devotion to the government, an express engagement of that which every citizen owes to his country, Imbrie v. Marsh, 5 N.J.Super. 239, 68 A.2d 761; Affirmed 3 N.J. 578, 71 A.2d 352, 18 A.L.R.2d 241; for as stated by Justice Story in 1838:

'Oaths have a solemn obligation upon the minds of all reflecting men, and especially upon those who feel a deep sense of accountability to a Supreme Being.' 2 Story, Commentaries on the Constitution of the United States (5th ed.) 613, § 1844.

As such it is an appeal to God to witness the truth of what is declared and an imprecation of divine punishment if what is said is false. See 18 A.L.R.2d 268.

We find nothing within the express language of the oath to which all may not conscientiously and with devotion to the government subscribe.

There is, however, incorporated within the oath a promise that the public officer or employee is not presently engaged in and in the future will refrain from certain conduct.

'Any officer or employee * * * having taken the * * * oath or affirmation * * * knowingly or wilfully at the time of subscribing * * * or * * * thereafter during his term of office * * * does commit or aid in the commission of any act to overthrow by force or violence the government The legislature his recognized that it is not to everyone the taking of an oath bears a deep sense of accountability to a supreme being and therefore has provided more worldly penalties to compel adherence. It has it effect said that the doing of the proscribed acts constitutes a failure to support the constitution and the laws of the state and to defend them against their enemies. When confronted with the problem of the state's interest in security, sanctions may be supplied to coerce and deter its enemies from seeking or holding public employment. Garner v. Board of Public Works of Los Angeles, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317. The state may demand an oath of a person seeking public office that he is not engaged in the commission of any act to overthrow by force or violence the government of the state or any of its political subdivisions. Gerende v. Board of Supervisors of Elections of Baltimore, 341 U.S. 56, 71 S.Ct. 565, 95 L.Ed. 745.

of this state or * * * advocates the overthrow by force or violence * * * or * * * becomes * * * a member of the communist party * * * or its successors or any of its subordinate organizations * * * having for one of its purposes the overthrow by force or violence of the government of the state of Arizona * * * shall be guilty of a felony and upon conviction * * * subject to all the penalties for perjury; * * *.' § 38-231, subd. E.

What we have said here would ordinarily dispose of this action for we do not entertain attacks on the constitutionality of a statute by those whose rights have not in some way been actually or injuriously affected or directly involved, Gherna v. State, 16 Ariz. 344, 146 P. 494, Anno.Cas.1916D 94. But in this instance we recognize the problem to appellant is one of potential deterrence of constitutionally protected conduct. The compulsion of the oath weighs most heavily on those whose scruples are the most sensitive. See Cramp v. Board of Public Instruction, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285. Accordingly, we reach the constitutional questions raised, but neither expressly nor by implication do we pass judgment upon Section 4 of Chapter 108 considering that the mere existence of a criminal statute is not such a threat as to present a justiciable controversy. cf. Hitchcock v. Kloman, 196 Md. 351, 76 A.2d 582.

The attacks directed against this oath question nearly every conceivable constitutional aspect. Not all merit serious consideration. For example, there is here no indiscriminate classification of innocence with knowing activity as was found offensive in Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216. Consistent with our interpretation, in part stated hereafter, it does not have the unconstitutional vice of vagueness and indefiniteness in placing an accused on trial for an offense, the nature of which he is given no fair warning, for punishment is restricted to specified acts knowingly and wilfully committed. cf. American Communications Ass'n v. Douds, 339 U.S. 382, 413, 70 S.Ct. 674, 94 L.Ed. 925.

It does not violate any rights protected by the Fifth and Sixth Amendments to the Constitution of the United States for neither are there penalties imposed for past activities nor is appellant required to divulge her past activities or associations. Ullman v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511, 53 A.L.R.2d 1008. The Act is not a Bill of Attainder imposing punishment without conviction in the course of judical proceedings. Here a person who has in the past engaged in the prohibited conduct can escape punishment by altering the course of his present activities. cf. Communist Party of United States v. Subversive Activities Control Board, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed. 625.

Since the oath to which appellant has refused to subscribe has had reproduced upon it all of § 38-231, she has been clearly We assume that the legislature was not unaware of the decisions of the Supreme Court of the United States and therefore used the word 'advocate' as meaning concrete action for forceful overthrow of the government rather than principles divorced from action. Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782; Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356; Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137.

warned of the consequences of her refusal. There...