Elfbrandt v. Russell

PETITIONER: Elfbrandt
RESPONDENT: Russell
LOCATION: Where Penn was killed

DOCKET NO.: 656
DECIDED BY: Warren Court (1965-1967)
LOWER COURT:

CITATION: 384 US 11 (1966)
ARGUED: Feb 24, 1966
DECIDED: Apr 18, 1966

Facts of the case

Question

Media for Elfbrandt v. Russell

Audio Transcription for Oral Argument - February 24, 1966 in Elfbrandt v. Russell

Earl Warren:

Number 656, Barbara Elfbrandt, Petitioner, versus Imogene R. Russell et al.

Mr. Morgan.

W. Edward Morgan:

Mr. Chief Justice Warren, Justices of the Court.

In 1961, the 25th Legislature of the State of Arizona passed Arizona Revised Statute 38-231, demanding that every employee of every Board, Commission, Agency, and Independent Office of the State in any of its cities, towns, school districts, public institutions, from that point on, not pay any more salary to any employee who failed or refused to sign a disclaimer oath, the general hortatory words known very well to every political office holder, but, adding thereto, a particular and peculiar meaning by subsection (e) of that particular statute.

Any officer or employee as defined in this section having taken the form of oath or affirmation proscribed by this section and knowingly or willfully at the time of subscribing the oath or affirmation or at any time thereafter during his term of office or employment does commit or aid in a commission of any act to overthrow by force or violence the government of this state or of any of its political subdivisions or advocates.

The overthrow by force or violence the government of this state or any of its political subdivisions or during such term of office or employment knowingly and willfully becomes or remains a member of the Communist Party of the United States or its successors or any of its Board and organizations or any other organization having for one of its purposes the overthrow by force or violence the government of the State of Arizona or any of its political subdivisions.

And said officer or employee as defined by this section prior to becoming or remaining a member of such organization or organizations, the knowledge of said unlawful purpose of said organization or organizations shall be guilty of a felony and upon conviction thereof shall be subject to all the penalties for perjury.

In addition upon conviction under this section, the officer or employee shall be deemed discharged from said office or employment and shall not be entitled to any additional compensation or any other emoluments or benefits which may have been incident or pertinent to said officer appointment.

Potter Stewart:

Mr. Morgan, the oath is simply the oath that appears on page 9 of your brief.

W. Edward Morgan:

Yes, it is, Mr. Justice.

Potter Stewart:

And that's an oath that is very similar to, if not identical with the oath that all federal officeholders taken.

W. Edward Morgan:

It's a traditional oath of our society as --

Potter Stewart:

Traditional oath for Government employees?

W. Edward Morgan:

Yes.

I think Helen Silving in the article in Yale, on a history of olds traces this history.

It's a -- even antedates our country in terms of its force.

It's a auditorial containing no penalty.

May not even be essential to employment even if a legislature provides that it is such.

Potter Stewart:

But it is the statutorial form (Voice Overlap) --

W. Edward Morgan:

It is.

Potter Stewart:

And that's the --

W. Edward Morgan:

One which (Voice Overlap) --

Potter Stewart:

-- only oath involved here.

W. Edward Morgan:

It's the only oath.

The question is whether or not when the legislature added to it a specific meaning, which is Section (e).

Potter Stewart:

Well, I suppose your case would be the same whether or not there was an oath, if they -- if Section (e) just said “if any” -- or just -- if it just took out “having taking a form of oath or affirmation proscribed by this.”

W. Edward Morgan:

Exactly so.

Potter Stewart:

With your case would be exactly the same.

W. Edward Morgan:

Exactly.

Potter Stewart:

You're attacking (e).