Elfbrandt v. Russell , 94 Ariz. 1 ( 1963 )

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 tc 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 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.” Chapter XXV Sec. 4, Howell’s Arizona Code, 1864.

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.

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 best of my 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 fixture 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 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.

The legislature has 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 in 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.

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.l916D 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 judicial 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.2d 625.

Since the oath to which appellant has refused to subscribe has had reproduced upon it all of § 38-231, she has been clearly warned of the consequences of her refusal. There is not here a want of substantive due process, cf. In re Anastaplo, 366 U.S. 82, 81 S.Ct. 978, 6 L.Ed.2d 135. While § 38-233, requires that the oath be filed of record, it does not contemplate that the filing be rejected by the public officer in charge of the board or agency with which the filing is required. There is, hence, no denial of procedural due process, cf. Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460.

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.

The most troublesome question to be settled is the collision arising between individual liberties protected by the First Amendment to the Constitution of the United States and the use of the police power of the state seeking to protect its citizens from potential calamity. On this issue some general observations point up the conclusions reached.

The police power of the state is the power vested in its legislature to make, ordain and establish all manner of wholesome and reasonable laws, statutes, and ordinances either with penalties or without as shall be judged to be good and for the welfare of the state and its residents. Sweet v. Rechel, 159 U.S. 380, 16 S.Ct. 43, 40 L.Ed. 188. It is the authority which resides in every sovereignty to pass all laws for the internal regulation and government of the state. Mutual Loan Co. v. Martell, 222 U.S. 225, 32 S.Ct. 74, 56 L.Ed. 175, Ann.Cas.l913B 529. While the police power is the-most essential and insistent power of government, rights secured or protected by the United States Constitution can not, of course, be overthrown or impaired by its exercise, Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 22 S.Ct. 431, 46 L.Ed. 679. Still,

“ * * * Many laws which it would be vain to ask the court to overthrow could be shown, easily enough, to transgress a scholastic interpretation of one or another of the great guaranties in the Bill of Rights.” Justice Holmes in Noble State Bank v. Haskell, 219 U.S. 104, 31 S.Ct. 186, 55 L.Ed. 112, 32 L.R.A.,N.S., 1062, Ann.Cas.l912A 487.

The command of the First Amendment requires that speech be fought with speech and falsehoods and fallacies be exposed, not suppressed, unless there is insufficient time to avert the evil consequences of noxious doctrines by argument and education. American Communications Ass’n v. Douds, supra. It is too well settled for argument that the right or privilege of free speech has its limitations. Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, 73 A.L.R. 1484. As has been pointedly observed, constitutionally protected freedom of speech is narrower than an unlimited license to talk.

In Dennis v. United States, supra, the test for determining acceptable limitations on free speech was stated as being that the decision must be based upon “whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” A somewhat different approach was used in the later case of Konigsberg v. State Bar of California, 366 U.S. 36, 81 S.Ct. 997, 6 L.Ed.2d 105:

“On the one hand, certain forms of speech, or speech in certain contexts, has been considered outside the scope of constitutional protection. See, e. g., Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470; Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031; Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137; Beauharnais v. People of State of Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919; Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356; Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. On the other hand, general regulatory statutes, not intended to control the content of speech but incidently limiting its unfettered exercise, have not been regarded as the type of law the First or Fourteenth Amendment forbade Congress or the States to pass, when they have been found justified by subordinating valid governmental interests, a prerequisite to constitutionality which has necessarily involved a weighing of the governmental interest involved. * * * ”

We recognize the prohibited conduct in denying membership in the enumerated organizations diminishes the individual’s freedom of association and hence the unfettered communication of ideas, but whatever test be applied, constitutional restraints are satisfied. The conduct sacrificed to governmental interests only minimally and incidentally conflicts with the First Amendment. The gravity of the evil sought to be reached, discounted by its improbability, justifies the invasion.

In considering the amended statutes we are conscious of the principle that courts are not concerned with the wisdom of legislation. Bohannan v. Corporation Commission, 82 Ariz. 299, 313 P.2d 379. Nor is it within our province to decide the propriety or expediency of the law. These are matters for the legislature’s determination. We look to discover whether there is a basis for the enactments, Schrey v. Allison Steel Mfg. Co., 75 Ariz. 282, 255 P.2d 604 consistent with the scope of the First Amendment.

The State, an integral part of the nation, has enemies capable of nearly instantaneous devastation, the sworn foe of republican government and all democratic processes who have publicly vowed to “bury” us. Only the want of an opportune time defers the moment of the thermonuclear first strike. Self-preservation makes it the concern of all and the particular duty of public employees to be alert against internal weakening of the state government. It is to be observed that public officials and employees as the normal leaders in community affairs are sensitive to and the target of proselytization. Their possible failure in the performance of duties can but be attendant with the gravest consequences. The state’s interest demands that public employees refrain from associations out of which even unconscious corruption may comfort those who seek world domination. Even memberships in the forbidden organizations lend the influence of the members’ names and offices to all aims and purposes. We need go no further; the evil sought to be restrained is evident.

The language of § 38-231, subd. E as amended has no relationship to beliefs. It prohibits any membership in any organization having for one of its purposes the overthrow by force and violence of the government of the State of Arizona or any of its political subdivisions including passive and nominal memberships, cf. Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782. It makes criminal after the taking and subscription to the oath all memberships in all organizations engaging in illegal advocacy. There is no imputation that public officers and employees may hold or retain memberships for exclusively lawful purposes. The risk that the insiduous poison may be here spread is not one the people of the state are willing to accept.

In arriving at our conclusions we have considered that the legislature has created a new crime, a felony, where none before existed, one which severely penalizes the formal act of association with certain groups. The critical act forbidden is the knowing or wilfull joining or remaining a member of an organization with knowledge of the illegal purpose. The memberships contemplated by the statute obviously must be determined not by conduct from which an inference may be drawn but by objective acts of joining and acceptance as members, cf. Killian v. United States, 368 U.S. 231, 82 S.Ct. 302, 7 L.Ed.2d 256. No other interpretation is consistent with the spirit of the act.

The legislature has declared by § 38-231, subd. D that an officer or employee shall not be entitled to compensation unless and until such officer or employee does take and subscribe to the form of oath. We construe the legislative intent as purely regulatory, meaning that when a proper affidavit is filed compensation shall be paid in full for past services.

The judgment of the court below is affirmed.

UDALL, V. C. J., and LOCKWOOD, J., concur.