Elfbrandt v. Russell, 10
| Decision Date | 30 December 1964 |
| Docket Number | P,No. 7406,No. 10,10,7406 |
| Citation | 97 Ariz. 140,397 P.2d 944 |
| 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 Districtima County, State of Arizona, et al., Appellees. |
| Court | Arizona Supreme Court |
W. Edward Morgan, Tucson, for appellants.
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).
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 of 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 nature of which he is given no fair warning, for punishment is restricted to specified acts knowingly and wilfully committed.' 1 The Supreme Court of the United States, by Per Curiam order dated June 15, 1964, vacated the judgment and remanded the cause to this Court 'for further consideration in light of Baggett v. Bullitt , 84 S.Ct. 1316 .'
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 protective cloak of the Constitution and laws of this country and state are irrevocably bound.
The Washington oath 4 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' and 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 'trude faith and allegiance', 'defend', and 'faithfully and impartially' in the context in which they are used range high in the level of abstractions. But Arizona's general perjury statute, A.R.S. § 13-561, has no application for the act contains an enumeration of the offenses punishable criminally as perjury, A.R.S. § 38-231, subs. E. 5 A statute which enumerates the subjects or things upon which it is to operate will be construed as excluding from its effect all those not especially mentioned. Lewis v. Industrial Commission, 93 Ariz. 324, 380 P.2d 782. No criminal act is committed under the specific language of the oath if the taker is unfaithful, partial, divides his allegiance or fails to defend the Constitution and laws against all enemies. The test is wholly subjective, binding only to the extent of the individual's conscience.
By A.R.S. § 38-231, subs. G. public officers and employees who take the oath promise, under penalty of perjury, that they are not knowingly or wilfully engaged in and will not in the future during their terms of office knowingly or wilfully engage in the conduct specified in A.R.S. § 38-231, subs. E:
1. Commit any act to overthrow by force or violence the government of this state or any of its political subdivisions;
2. Aid in the commission of any act to overthrow by force or violence the government of this state or any of its political subdivisions;
3. Advocate the overthrow by force or violence of the government of this state or any of its political subdivisions;
4. 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;
5. 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 perjury. Were we to consider, which we do not, any part of A.R.S. § 38-231, subs. E unconstitutional, the oath provided by § 38-231, subs. G would not fall for the act provides that if any provision is held invalid, the invalidity shall not affect other provisions which can be given effect.
If we correctly understand the opinion of the Supreme Court of the United States in Baggett, it is the susceptibility of a statute to the 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 act 6 and the Arizona act. Arizona does not seek to punish one who advises, teaches or abets or advocates by any means 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 'knowingly or wilfully'; that is, that it be voluntary and purposeful and not because of a mistake, inadvertence or for any innocent reason or that the act be done with an evil motive to accomplish that which the statute condemns.
By A.R.S. § 13-131, in every crime or public offense there must exist a union or joint operation of act and intent or criminal negligence. But the crime of committing or aiding in the commission of an act to overthrow the government of the state or any of its political subdivisions cannot be completed if accompanied only by a generalized intent to commit an act. The language of subs. E, A.R.S. § 38-231, requires that it be read as committing or aiding in the commission of an act in an attempt to overthrow the government or any of its political subdivisions. The overt act or the aiding therein must be with actual intent to accomplish the result forbidden, State v. Mandel, 78 Ariz. 226, 278 P.2d 413, and a specific intent to overthrow must exist. It must be an intent in fact which cannot be implied or presumed and must be proved by evidence or facts other than those establishing the overt act. Cf. People v. Snyder, 15 Cal.2d 706, 104 P.2d 639.
Moreover, the act must be such as will apparently result in the usual and natural course of events, if not hindered by extraneous 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. A.R.S. § 13-138. All persons concerned in the commission of a crime, whether they directly commit the act constituting the offense or aid or abet in its commission or, not being present, have advised and encouraged in its commission, are principals. A.R.S. § 13-139. We have construed the aiding required by this statute as some positive act of physical or moral force joining with that of the perpetrator of the crime and producing the result. State v. Martin, 74 Ariz. 145, 245 P.2d 411. The aiding, made punishable by subs. E, is the same as that which would make an accessory before the fact a principal under § 13-139; that is, if the aider is present he must have assisted in commission of the overt act or, if not being present, have advised and encouraged its commission. In a crime where a specific intent is an element there can be no innocent aiding. Acker v. State, 26 Ariz. 372, 226 P. 199.
Since both the act and the aiding referred to in the statute must be in attempts with the specific intent to overthrow the government, the Arizona statute § 38-231, subs. E is not afflicted with the many uncertainties in advising, teaching or associations found potentially punishable in Baggett v. Bullitt, supra. Nor does it reach endorsements or support for Communist candidates for office nor a lawyer who represents the Communist Party, or its members, nor...
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Elfbrandt v. Russell, 656
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