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

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).

Potter Stewart:

You’re not attacking the oath.

W. Edward Morgan:

Exactly.

Potter Stewart:

Is that it?

W. Edward Morgan:

Yes.

Potter Stewart:

Yes, fine.

W. Edward Morgan:

At the same time, the state legislature also passed a anti-subversive — a subversive law which is practically per verbiage of Section (e) of the provisions which I’ve read to you.

At that time, based with this legislation, the named petitioner herein, Barbara Elfbrandt, a teacher and a Quaker, joined together with two other teachers and refused to sign the oath and brought an action in the Superior Court of Pima County, Arizona, attacking the law in a — on substantially all of the grounds, constitutional grounds which had been advanced in our two applications for certiorari to this Court.

The statement of facts was agreed to by the Attorney General of the State of Arizona and made part of the lower Court’s decision, the Trial Court’s decision, denoting it a class action not only for teachers but for every employee of both the state and the county.

Earl Warren:

We’ll recess now.

W. Edward Morgan:

Yes, (Inaudible).

Mrs. Elfbrandt and two other teachers did not, within the 90-day period filed their renewed oath containing Section (e), which was made mandatory to be printed as part of the same sheet on which the oath was contained and her pay was stopped forthwith and she and her husband have — since that time to the present, continued to be school teachers without remuneration in the State of Arizona.

One other man, Mr. Delgoff, after the first Arizona State Supreme Court decision, did signed the oath and received back wages for a period of 12 months or 13 months, whatever time it was.

Potter Stewart:

She’s a Quaker?

W. Edward Morgan:

She is a Quaker.

Potter Stewart:

But I gather it wasn’t to the taking the oath which she objected because she had the choice of affirming, didn’t she?

W. Edward Morgan:

Exactly.

Potter Stewart:

So, wasn’t she (Voice Overlap) —

W. Edward Morgan:

And, had previously signed an oath, an affirmation, oath in terms of the paycheck because the vouchers contained — printed on them an affirmation clause.

Potter Stewart:

And she has — she’s making no attack here on the basis of the First Amendment, the protection of free exercise of religion, is she?

W. Edward Morgan:

No, not — and particularly because it’s a class action in terms of what would then be available to all the employees of the State of Arizona.

Potter Stewart:

And anybody has the choice of affirming rather than taking an oath.

W. Edward Morgan:

Exactly so, yes.

On the other hand, one might suggest that in as much as it is a class action and as much as we have argued this matter to our State Supreme Court, it has been a matter of judicial review on both occasions.

There has been a discussion of the First Amendment Freedom of Religion as applied to all the employees of the State of Arizona and their right to refuse to take an oath or affirmation on the matter.

This has been argued in our Court.

So, though it’s not particular to this particular appellant here, as much as it was brought as a class action on behalf of every type and style of employee, not just limited to school teachers and to — and stipulated as a matter of fact and a matter of condition of the appeal itself.

And as a result, the cause of not receiving any salary, we approach this Court in forma pauperis.

The first issue that must be met is whether or not under the theories of this Court in the balancing of interests which was somewhat discussed in the previous case in oral argument here this morning, a position which we do not share in the Court’s view of the balancing of the right of the state purportedly to maintain itself as against the operation of the First Amendment and the Bill of Rights.

However, even within the theory of — philosophical theory of Doctrine of Relativism of Rights adopted by this Court over a series of cases, like Dennis and etcetera, it’s our position that the State of Arizona, in connection with the operation of this statute had no good substance to even pass a statute.

That the statute — one, that there was no good reason for it, that there was no operation of communist in any broad scale within the State of Arizona, no evidence of that.

W. Edward Morgan:

There’d been no public hearings.

There were some adoptions of some other hearings by the Federal Government, but none of those hearings or reports indicate that there was any widespread subversion of public employees of the State of Arizona.

And understand the statute does not only apply to employees of the state, but applies in counties, cities, of any affiliate administrative body associated with the state, such as volunteer, administrative committees of cities where there’s no pay involved.

There were no hearings on this matter or public lines.

There was no evidence that there was any subversion.

There was no predicate for an insult to the public employees of the State of Arizona that they were subversive in a fretful period of extreme reaction that the state legislature wanted this — was passed.

And, as usual, when things are pretty feisty and people are in the air, I think with one objection.

The second aspect —

Potter Stewart:

But whether or not — whether or not the State of Arizona had good reason or no reason to pass this law as — that question as such isn’t really the business of this Court, is it?

W. Edward Morgan:

I think when — yes, I think it is, under — even under your decisions, on the basis that when the Court sets back and allows the state to operate in a way to place a limitation on freedom of assembly and freedom of speech, then the burden is upon that state to show its — the need to do this.

Potter Stewart:

Well, is this —

W. Edward Morgan:

And where is the need —

Potter Stewart:

If the operation of this law results in the violation of some of these constitutional rights then it does and under that extent, pro tanto it’s invalid.

But whether or not a state has a good reason or a bad reason or no reason to pass a law is as such no business of this Court because it’s no business of the United States Constitution, isn’t that right?

Let’s say a state passed a law, licensing, snake charmers and you show there are no snakes in the whole state but that’s of no — that’s no business of ours, is it?

W. Edward Morgan:

In that light I would agree and concur with you in your interpretation of the matter.

In light of when — let us — to say that we establish and concede that each individual within the state is a member by reason of his national citizenship has a right to freedom of speech and freedom of assembly.

I think this statute on its face by proscribing association in particular organizations was purportedly — are engaged in antisocial behavior puts obviously on the face of it, a restriction on assembly which is a restriction of freedom of speech.

Potter Stewart:

Now, that’s —

W. Edward Morgan:

Whether it’s a junk case.

That being so, then we must measure or not whether or not there was sufficient overall need by the legislature of the State of Arizona to enter into this relatively tender area of limitation of activity.

And in that case — in this case, there’s no showing of the State of Arizona that there was any such need.

Secondly, one of the things that this Court has been careful in the past is to see that — assuming that a state does have a need and wishes to fulfill that need, whether or not they have used a tool, chosen the proper tool to ex — to fulfill their need.

The question is whether assuming that they thought that they had a problem dealing with subversion, whether or not the tool that they’ve chosen is the one least disruptive of the rights of freedom of association and freedom of speech.

And in that regard, the history of — an examination of the authorities in dealing with the adoption of loyalty oaths, say in California, as set forth in the citations and authorities of review that we’ve given in our brief on both occasions that we’ve been to this Court would indicate that the adoption of the technique of disclaimer by so-called loyalty oath with provision similar to Section (e) have been a failure.

In the State of Arizona, there hasn’t been one prosecution.

There hasn’t — one person turned up as a subversive.

The evil of it must be also considered in terms of its adverse effect upon the society.

And certainly, I think we’ve cited within our brief the situation, a study done under the auspices of the Twentieth Century Fund on the effect of these disclaimer oaths, on these loyalty oaths, such as Section (e) of Arizona law and the academic community, in which they were rather disastrous in terms of their attitude and feeling of freedom and their ability to speak out and undertake lines of development.

So, the evidence that’s before this Court in terms of this type of legislation is one that in the State of Arizona show no fundamental need for it.

W. Edward Morgan:

And, secondly, it’s adopted a piece of legislation which has demonstrated in its effect over the country, danger and an injury to the academic community.

But assuming for a minute that the legislation on those basis is perfectly constitutional, I think there are certain other aspects that one might consider with this legislation to — that indicates it’s uncons — that’s not constitutional.

What it — assuming that the State of Arizona has a problem with subversion and a finding out in attempting to get rid of employees of the cities, counties, dogcatchers, garbage collectors, etcetera for being subversive, may that society — may that legislature throw the burden of dealing with a problem from its own shoulders onto the individual.

I think that’s exactly what the State of Arizona has attempted to do in two fundamental ways, one, by denying of hearing and the question of procedural due process.

The second aspect is by framing a piece of legislation that is so vague that the man of ordinary understanding cannot be properly advised of what conduct will allow him to act in safety.

What the State of Arizona does by presenting Section (e) to any employee is to shift the burden, instead of going through an administrative proceedings, with hearings, with accusations, with accusers, with transcripts, the individual must meet the issue all by himself.

Now, the question comes, and I don’t think we need too much discussion on the fact that though an employee doesn’t have a right to a government job, that the government in dealing with the employee must afford him basic due process in terms of — with firing and hiring procedures.

I think we’ve set that forth in a number of different cases before this Court in our brief.

But taking the situation of a right of hearing, what is the individual faced with?

In this case, if he wants to continue to work for income, he wants to continue to receive his salary, he must sign the oath.

If he doesn’t, he doesn’t get a salary.

On the other case, if he wants employment, he must sign the oath or he may not be employed.

This is a — fundamentally a denial of procedural due process under the Fourteenth Amendment.

The quality of placing a burden upon the individual to decide all of the terms of this legislation, when we come to the vagueness question itself, but notice the burden that it puts upon the individual.

One, at his penalty, he must determine all of the terms of this particular subsection.

He must determine what knowing is and what advocacy is, and aid is, and what an association that has as one of its purposes the overthrow of the government.

All of this burden is put on the individual.

He stands there by himself, in secret, without any aid, without any really effective aid of counsel, unless he hires himself, all the burden of judging his own conduct and of interpreting the meaning of the statute is thrown upon his shoulders, what to find out.

So the State of Arizona might find out if he is a subversive, might.

Is there enough validity to the –of placing the individual with this type of burden to gain benefit to the State of Arizona in terms of attempting to find out or discriminate or get rid of a subversive, highly doubtful on the basis of the history of this particular legislation.

The — this Court, in the second Nostrand versus Little case, noted that the — in the second state decision, after the remand by this Court, noted that their oath was prospective only and it held that where tenure was involved on the University Professors of that State, that there would have to be a hearing.

The Court there, I think, erroneously determined in the State of Wisconsin that there was no right to public employment and therefore no right of hearing on any other employee other than those that have been specifically granted tenure by their reason of being a university professor.

But the — but this Court in Nostrand versus Little, and the state court recognized in Nostrand versus Little the essential necessity of a hearing to grant a person the right to explain why or why not they’re not accepting or taking the oath.

The distinction between a criminal prosecution and the placing of the burden directly upon the individual by confronting him with his decision is that in terms of a criminal prosecution, one, all of the procedure of the state would be that a trained county attorney, or district attorney, prosecuting officer would have to evaluate with his legal training and experience and knowledge the exact meaning of the statute as applied to an individual case.

They have to have a proper and preliminary investigation of the purported facts of the individual.

There’d have to be a conclusion by the prosecution with understanding of the probabilities of success.

There would have to be a preliminary judicial scrutiny of the case in terms of an issuance of a warrant for arrest.

There would then be in nearly every state procedure and certainly in the State of Arizona a preliminary hearing or a grand jury scrutiny.

All of this scrutiny before society would effectively act upon the individual.

By presenting him with an oath and forcing him to sign it at the danger of losing his job or danger of losing his salary, the state short circuits all of the social security of the individual that we have worked out in criminal prosecution and place the whole burden on him.

W. Edward Morgan:

The issue of giving a man an opportunity to explain his position is fundamental in our society.

It’s a fundamental aspect of due process itself.

The opportunity to say where you stand and why you stand before one loses valuable rights is the basic concept of due process, as established by this Court, certainly in Lerner versus Casey and a number of other cases.

Potter Stewart:

Are we clear that no hearing is available here?

W. Edward Morgan:

There is no hearing available in the State of Arizona to — other than a tenured school teacher and we are not here as a tenured school teacher.

There is no hearing available.

Potter Stewart:

Your — the person who brought this suit is a tenured —

W. Edward Morgan:

No —

Potter Stewart:

— school teacher on —

W. Edward Morgan:

— not at the time —

Potter Stewart:

— on behalf of herself and other similarly situated, isn’t it?

On behalf of herself —

W. Edward Morgan:

She was not —

Potter Stewart:

— and all other govern — Arizona employees.

W. Edward Morgan:

Yes, she was not tenured at the time.

Potter Stewart:

She is now.

W. Edward Morgan:

She is now.

She has achieved it.

Abe Fortas:

May I ask you this question.

Is there anything —

W. Edward Morgan:

Yes, Mr. Justice Fortas.

Abe Fortas:

— in the record that shows whether at the time a prospective state employee takes this oath, there is any reference to or notice of the statute?

W. Edward Morgan:

Yes.

Abe Fortas:

When — how does that (Voice Overlap) —

W. Edward Morgan:

The law itself establishes the way it will be printed and if you’ll — the statute itself Mr. Justice Fortas provides that the Section (e) will be typed up and printed along with the oath itself and get the law itself.

In your brief, there’s nothing else.

Abe Fortas:

Well, don’t take your time.

W. Edward Morgan:

It’s in our brief and it’s in the state’s brief.

Section 38-231, officers and employees required to take loyalty oath form penalty in order to ensure the statewide application of this section on a uniform basis.

Each board, commission, agency, and independent office of the state and any of its political subdivisions and of any county, etcetera, public educational institutions shall immediately upon effective date, completely reproduce Section 3-231 as set forth herein to the end that the form or written oath or affirmation shall contain all the provisions of said section.

W. Edward Morgan:

In the — we cite the case of Heckler versus Shepherd, which is the State of Ari — in Idaho, three-man federal court deciding the issue of the constitutionality of the same provisions as in the State of Arizona.

The Heckler case has not been appealed.

It’s more than a year.

It was a divisible statute.

It provided a prohibition, a future prohibition against advocacy of the — a forcible overthrow of the government and in substance is the same.

The Court in Heckler versus — in the Heckler versus Shepherd, there set forth that it was a denial of procedural due process in connection with vagueness that gave rise to the unconstitutionality or lack of constitutionality of such a proscriptive oath.

And the — both oaths are the same.

The lower court felt that on the same basis, that a man must have the right to publicly say why he is not signing such an oath and the reasons why he is not signing it so that the public may know, so that he may not go about branded in our society without a forum, without a record of his opinions.

And I think that in substance, that when one considers the grave consequences to an individual as to whether or not he signed this oath containing subsection (e) and his inability to create a public forum for his position, except by appeal to this Court, as suggested in the reply brief or answering brief of the state is to place an undue burden upon him.

There are certain questions, questions of whether or not — if in subsequent prosecution under the anti-subversive law, whether or not the failure of the individual who signed this oath may not be used against him in a future criminal prosecution or at least in cross-examination to show that, at that time he had a bad knowledge of his association.

There’s a question of whether or not in fact, this is not in effect self-incrimination because his very failure to take the oath labels him in the community as either of two things, one, a dangerous person by subversive association or, two, that maybe just as dangerous in our society as an unstable person, as a person who may be reckless in their affiliations or reckless in their thoughts.

In either one, the black morale of our (Inaudible) — of esteem that was upon the individual, he carries it wherever he goes into every other form of employment, particularly this school teacher.

And he leaves the school district because he hasn’t signed the oath and attempts to get a job any other place.

The first thing that he’s going to be faced with is the fact that he didn’t sign the oath and he lost his public employment.

Potter Stewart:

Now, I suppose a state can, if it wants to, decide that it doesn’t want to have its own employees, people who are either dangerous or unstable, would you agree with that?

W. Edward Morgan:

Yes, and further stay the law.

Potter Stewart:

And, if somebody doesn’t want to — if somebody is, falls into one of those categories and for that reason can’t take this oath without committing perjury, he doesn’t need to refuse to take the oath.

He could just resign and find private employment.

He could find employment in the state which doesn’t require those conditions of its employees, can’t he?

W. Edward Morgan:

I think that’s inaccurate.

I think that it goes back to a position — well one, I don’t think it faces the facts, the reality of it, particularly in the school teaching industry.

About 80% of employment is public employment.

It would be like the same old story before the Norris-La Guardia Act, if you don’t like working for me at my 10 cent-an-hour wages, you go to work for anyone else that you want.

To say to an individual, if you don’t like public employment and the conditions of it, you can go and just work some other place, is not really a full answer of the question.

Potter Stewart:

Well, this person obviously doesn’t like public employment under condition of it in Arizona.

W. Edward Morgan:

But, let’s as —

Potter Stewart:

There are many other states which don’t have —

W. Edward Morgan:

Fine.

Potter Stewart:

— have these conditions.

W. Edward Morgan:

But let’s assume that with that condition there’s due process.

W. Edward Morgan:

Let’s assume that a hearing is afforded where the person can test out whether or not, one, their understanding of the law is correct.

One, it assumes that when a person doesn’t sign the oath that they have a competent understanding of the oath.

That’s where we’ll come to the vagueness issue in a second.

But let’s take it on a — how having a hearing would avoid some of the vagueness problems of this particular legislation because, there the individual could work out what the law actually meant, vis-à-vis his conduct.

Does aid mean aid?

Does advocacy mean advocacy?

And, it would be explained to him.

In this position, the individual has no explanation of what this oath means, nor can they be in a position without jeopardy of saying, “Well, if I belong to the international association of astronomical scientists, though its communist dominated,” and we will presume that every communist organization has one of its purposes the forcible overthrow of the government, “Does this bring me into jeopardy of the law?

If doesn’t bring me under jeopardy of the law, then I’m willing to sign the oath and continue my employment.”

But, there is no forum for that.

There is no way that the person can reach a decision, a fact decision, on his loyalty under the present law of the State of Arizona.

Abe Fortas:

Well, how about the phrase in the law that says — requires as a condition to its punitive application or disqualification that the person must have had knowledge of said unlawful purpose of the organization.

It appears on page 10A of your brief.

W. Edward Morgan:

Yes.

This Court, I think, has dealt in Baggett versus Bullitt, which we’ve cited in our briefs with unknowing guilty — with knowing guiltless behavior in the Baggett decision and in which you’ve dealt with this very, very problem, Mr. Justice Fortas, the knowing.

We have many definitions of the word “knowing”.

This is not just as clear a word as one would have it sometimes meant.

The — in the — in United States versus Bianco, cited in our brief, the term “knowingly” contains no element of evil purpose but purports — imports a perception of facts requisite to make up a crime.

In U.S. versus Martinez, cited in our brief, where there’s a clue on it that the defendant knew what he was about to do and with such knowledge proceed to do the act.

It means that in Rubenstein, U.S. versus Rubenstein, “knowingly false” means that the party honestly did not believe it to be true.

You have even in your Iberville Land co. versus Amerada Petroleum, knowledge of notice sufficient to excite action and put a person on his God and call for inquiry could be sufficient knowledge.

So, it’s not the simple nice knowledge in toto.

It’s a knowledge that may be imputed by his conduct and to — left to the tender mercies of a jury to decide what his basic knowledge was and his basic intent.

It’s not sufficient to give the individual security from how his conduct will be in the future interpreted.

And this is the problem of the knowing.

Secondly, when we get into the area of vagueness of the Arizona statute, it’s very interesting that the Arizona Supreme Court had to redefine — in its first decision had to redefine the meaning of advocacy.

Then we go back, after the Baggett versus Bullitt, the Arizona Supreme Court had to redefine the word “aid” in light of Baggett versus Bullitt.

On its question of vagueness, Judge Bernstein, in the second opinion, he was told that there were open questions of vagueness, the question of what the statute means as to membership in an organization which has as one of its purposes the forcible overthrow of the government and how much knowledge is necessary.

There’s no definition within the statute or in the determinations of it of how much knowledge an individual has to have of the unlawful purposes.

And, in your Baggett versus Bullitt, and Cramp versus Florida, the standard which you placed in connection with statutes of this type is that the terms of the statute must be susceptible of objective measurement, and there is no objective measurements of the term “had knowledge of”, how much knowledge?

W. Edward Morgan:

We don’t know.

The individual is put on a burden of defining a lot of terms which apparently the Supreme Court of the State of Arizona has had difficulty with in a number of different ways.

If the statute was so clear, it seems rather strange that our Supreme Court had to redefine its terms twice and yet, this is the burden that’s put upon the individual and still hasn’t decided what some of the terms mean.

And, secondly, and I think as pointed out by Justice Black in his dissent in the Scales case, one of the dangerous things of such legislation is this, is the great amount of judicial operation on the statute of adding new meanings so that in the State of Arizona now aid those no longer mean aid and advocacy does no longer mean advocacy.

It means something different from what it said originally in the statute.

The danger of rewriting this legislation by judicial interpretation to — in an attempt to make — come up to constitutional standards is that, one, the individual has no right to rely on it.

If the Court changes its mind five years from now or two years from now, the defendant has no constitutional right that’s involved.

Ex post facto provisions of the constitution don’t apply.

Stare decisis is not a binding upon the Courts.

All these interpretations may be allowed to be changed and the defendant would have no relief on a charge of perjury in the State of Arizona.

The State of Arizona is as confused as it apparently is in terms of the meaning of its own statute, notwithstanding that the — that this Court had already determined some of the terms of advocacy.

It seems to be an undue burden to put upon the laymen.

And if you wish to understand the attitude of the State Supreme Court and what the individual is against in the State of Arizona in terms of its own Court and its interpretation, I wish to read to you part of the first decision of our Court written by the same Chief Justice who is now presently Chief Justice.

He said in the first decision on this case.

The breadth and intolerance that — intolerance of the Arizona Su — well, let me state it.

The state’s interest demands that public employees refrain from associations out of which even unconscious corruption may comfort those who seek world domination.”

It goes on to second.

“The risk that the insidious poison may be spread is not one the people of the state are willing to accept.”

When one’s own Supreme Court talks about associations out of which even unconscious corruption may arise and then, we are asked to sign an oath with provisions as vague as past membership in terms of subsidiary organizations, in terms of organizations that have as one of their purposes the forcible overthrow, this statute, I think, fails on vagueness.

One other aspect of the case, I think, very much linked to the same problem is the question of whether or not this type of legislation is in effect a bill of attainder.

I know that the history of bills of attainder concept with this Court, as with the doctrine of mens rea have not receive a great deal of consideration in recent times but there at appears to be at least a growing interest on the part of this Court with the attendant concepts of self-incrimination and bills of attainder.

It seems rather obvious in this matter that when an individual is put to the position without a hearing of having to sign an oath or not sign this type of affirmation, that if for any reason, he feels duty bound not to sign it, on the basis he’s guilty, because that would make an assumption, wouldn’t it?

We — we’d be doing the same thing which happens when people take the Fifth Amendment.

We’d be making the assumption that they were guilty and that assumption we may not legally take, but it’s the assumption that’s taken in our society because our very reaction bespeaks of the reaction in our society.

The minute he doesn’t take it, he’s proscribed, he’s immediately denoted in our society, and this is by legislative quiet.

There’s no adjudicatory process and one of the failures of the bill of attainder — one of the reasons for the bills of attainder is the prohibition against this lack of adjudicatory process.

In essence, it’s very similar to the concept of procedural due process or the denial of procedural due process.

The bills of attainder might be forward on that concept and the same sort of concept is a denial of procedural due process because of the historical relationship of denying an adjudicatory process to it.

And, in this sense, Mrs. Elfbrandt and all the other employees of the State of Arizona put into an ambivalent position where either you sign or you don’t sign, and if you don’t sign, you are considered by our society to be guilty.

On this basis — on the basis of the previous decisions in this State, in this Court, construction of the constitution, we therefore feel that the statute is unconstitutional as being unconstitutionally vague and for denial of procedural due process.

Earl Warren:

Mr. Haggerty.

Philip M. Haggerty:

May it please the Court.

I think it is a good idea to consider as our constitution directs us to return to basic principles and in this case, to return to the law itself.

There are three things which are prohibited which are made crimes.

One is the act of overthrowing the government by force or violence or aiding in the commission of an act to overthrow state government by force or violence.

I think it is admitted but certainly not attacked that this is a valid piece of legislation.

The second prohibition is against advocating the overthrow of government by force and violence.

The statute is limited to the word “advocate.”

The third prohibition is becoming or remaining a member of the Communist Party or any other organization, knowing that it has for one of its purposes, the overthrow of the government by force or violence.

These prohibitions apply to all citizens of the State of Arizona generally and specifically to all public employees by reason of two different statutes.

The statute relative to public employees has been attacked, first of all, on the basis that provides for no administrative due process that a person may lose his possession without having a chance to explain at the administrative and procedural level his reasons why he does not wish to take an oath.

I think it is simply and best put in the dissent in Nostrand versus Little by Mr. Justice Douglas.

The administrative process can serve no purpose.

No Tucson School Board, no Gila Bend City Council, no City of Phoenix Council could excuse a person and say, “Alright, you can work and get paid if you don’t take the oath.”

They simply do not have that authority.

This is not a forum in which explanations or defense would do any possible good to either the administrative agency or the person.

There is no function to be served by allowing or requiring that somebody explain or defend to an administrative agency.

Byron R. White:

Yes, but it’s suggested that’s the very vice of the statute.

Philip M. Haggerty:

If nothing can be accomplished by the statute, if no right which previously existed was taken away and no new right is created, thus the status of the person has not changed.

Byron R. White:

But if a —

Philip M. Haggerty:

He can be fired from public employment for being a democrat or a republican.

Byron R. White:

I gather, after you sign this oath, you sign it and after you — you not only promise what is stated in the oath and you not only disclaim what is stated in the oath, but you disclaim also that you’re not a member, for example, of any of these organizations at that time.

Philip M. Haggerty:

At the time that it is taken.

Byron R. White:

It doesn’t refer to the future, except in terms of a promise.

But if you — if you happen to be a member of one of these organizations at the time you signed the oath, you’re subject to perjury and prosecution.

Philip M. Haggerty:

If you have a concomitant fact that (Voice Overlap) —

Byron R. White:

Now, just what if you didn’t know what this was all — what these organizations really were and you refused to sign the oath because you didn’t know and the statute didn’t give you a hearing?

Philip M. Haggerty:

What purpose could a hearing do?

For that matter, what could a purpose in a — could a hearing at a court do?

Is this Court to require that a person has a right to go to a Superior Court and get a declaratory judgment on a organization, the makeup of which or the membership of which or the purposes of which nobody knows?

Philip M. Haggerty:

What can anybody do?

Byron R. White:

Well, somebody must know or you wouldn’t lose your job over it.

Philip M. Haggerty:

You can’t lose your job until you —

Byron R. White:

And it’s also had at least —

Philip M. Haggerty:

— have been convicted in a court of law as a part of the criminal process.

Byron R. White:

The employee might be put to a little clearer choice though by a hearing.

Philip M. Haggerty:

He can only be fired if he were convicted of committing perjury.

Byron R. White:

No, no (Inaudible) —

Philip M. Haggerty:

He can’t be fired by the agency.

Byron R. White:

Well, if he signs the oath?

Philip M. Haggerty:

If he signs the oath, he can’t be —

Byron R. White:

Oh, I know but —

Philip M. Haggerty:

— touched by the agency.

Byron R. White:

— he doesn’t sign the oath, he can certainly be fired.

Even if the reason —

Philip M. Haggerty:

They cannot be paid.

Byron R. White:

Even if the reason he didn’t sign it is that he didn’t understand what his choices were, namely —

Philip M. Haggerty:

He cannot be fired.

He can only be suspended from receiving remuneration, but he cannot be fired for refusal to sign the oath.

Byron R. White:

You draw the difference, if you want to between those two things.

Philip M. Haggerty:

Well, it have been precisely drawn in this case.

The Tucson School Board was advised that they had no right to discharge Mrs. Elfbrandt.

The most that they could do was suspend her from payment and she is still teaching where she has been.

Hugo L. Black:

Isn’t there a Communist Party in Arizona?

Philip M. Haggerty:

I frankly do not know.

I think we may have some old Wobblies back and among us.

Hugo L. Black:

Isn’t that —

Philip M. Haggerty:

But there is no organized party in Arizona.

Hugo L. Black:

Do they have a law?

Philip M. Haggerty:

Pardon me?

Hugo L. Black:

Is it against the law to have one?

In —

Philip M. Haggerty:

Yes.

Hugo L. Black:

— Arizona?

Philip M. Haggerty:

Yes.

As part of the same statute, it cannot qualify as a legitimate political party.

Hugo L. Black:

Well, what Communist Party is —

Philip M. Haggerty:

Pardon me?

Hugo L. Black:

What Communist Party is referred to in the statute?

Philip M. Haggerty:

The Communist Party of United States.

Hugo L. Black:

Well, is there a Communist Party of the United States now?

Philip M. Haggerty:

There’s some question as to that, I suppose, as a factual matter.

I don’t know.

But there — last time, there was a communist party appearing on the ballot in Arizona, I think it was in 1944 or 1948.

I’m not sure.

None has appeared since then even though, in the intervening period, it probably illegal to could have qualified.

Earl Warren:

Suppose a man belonged to some organization that had been cited by the Un-American Affairs Committee of the Congress and he was — he had no knowledge himself as to this being a communist organization, but it was cited by that committee as being a communist front organization or some other communist organization and he was working for the state and he was afraid he might go to jail for perjury if he signed the thing.

How would he know whether he could safely sign that affidavit or not?

Philip M. Haggerty:

He will be in the same position as you placed the Union official in the Douds case.

He can resign from the organization and then sign the oath.

Earl Warren:

Well, I know, but it’s never been definitely proved in any court that this organization is cited by the Un-American Affairs Committee is a communist organization, is communist-controlled, or anything else.

It just says that it is.

That’s all.

Philip M. Haggerty:

He cannot be convicted unless he knows that it is — well, the fact as it has been cited by a committee is of no bearing.

We do not have the Louisiana situation of any presumption or — of either the Attorney General opinions of the United States or of any —

Earl Warren:

Well, suppose it was —

Philip M. Haggerty:

— hearing.

Earl Warren:

Suppose it was so when it had been put on the list by the Attorney General and he claims that it isn’t and he want — as far as he knows, and he wants to know whether he can continue his employment without taking that oath because there’s no one to tell him whether that — whether he’d be in danger or not.

Philip M. Haggerty:

There are times, I suppose, in any criminal Act where your chance of being proved guilty or innocent depends upon your knowledge and your convincing the jury of your particular knowledge.

If he knows that it’s not an organization or, as far as he is concerned, it is not an organization dedicated to the overthrow by force or violence, he is not guilty of a crime.

Earl Warren:

Even though the Attorney General of the country has put it on the list as a communist-controlled organization?

Philip M. Haggerty:

That’s the Attorney General’s opinion nor to be hearsay wouldn’t even be admissible in evidence against the man.

Earl Warren:

Alright, are you confident that your reports would hold to that view?

Philip M. Haggerty:

I believe they would, yes.

The —

Earl Warren:

What —

Philip M. Haggerty:

— Attorney General —

Earl Warren:

What do you do with the statement that Mr. Morgan just read from your Chief Justice out there?

Philip M. Haggerty:

I believe it is —

Looking at a —

Philip M. Haggerty:

— a different aspect as to whether or not the state had a right to prohibit its members from becoming or being associated with organizations.

The advisability of the possible dangers does not go to the criminal conviction necessarily as determining whether or not there is a reason for the law at all.

That was the argument that was being answered in that particular phraseology, in that particular section.

And I think —

Earl Warren:

Do you know —

Philip M. Haggerty:

— the decision is likely (Voice Overlap) —

Earl Warren:

Do you know of —

Philip M. Haggerty:

Always have to be read by their entire Act.

Earl Warren:

Do you know of any Act making conduct perjurious which is done in the future even though there was no intent to do it at the time the oath was taken?

Philip M. Haggerty:

The oath which is required of all public employees of the United States is subject to a specific section of the United State Code, Title 18 Section 1621, which report — which makes it a crime punishable by five years imprisonment, to make a false statement is not perjury, to make a false statement when required to make a statement by law —

Earl Warren:

Well —

Philip M. Haggerty:

— followed by the same (Voice Overlap) —

Earl Warren:

Suppose —

Philip M. Haggerty:

— would include future conduct.

Earl Warren:

Suppose I make — I make one of these affidavits.

I have no communist associations of any kind and two or three years later, I do join some organization.

Is there any comparable law that makes that conduct of that kind perjurious, so far as the original affidavit is concerned?

Philip M. Haggerty:

I can think of none.

Earl Warren:

Well, wouldn’t this do (Voice Overlap) —

Philip M. Haggerty:

The statute says —

Earl Warren:

This would —

Philip M. Haggerty:

— shall be punished as for perjury, and that just really means —

Earl Warren:

This would do that.

Philip M. Haggerty:

— for 14 years.

Earl Warren:

This would do that, wouldn’t it?

Philip M. Haggerty:

Yes.

Earl Warren:

And, do you think that’s alright?

Philip M. Haggerty:

It’s simply a definition of what the perjury statute means and our legislature can call any crime by any name.

I don’t think —

Earl Warren:

Do you think (Voice Overlap) —

Philip M. Haggerty:

— designating something as perjury means it has to be an oath sworn to an open court.

Earl Warren:

Do you —

Philip M. Haggerty:

The law says, “shall be punished as” for perjury.

Earl Warren:

Do you think it would be constitutional to say that anyone who does anything in the future which is inconsistent with an oath that he has taken in the past is perjury or will be punished as perjury?

Philip M. Haggerty:

I can say there’s no difficulty in that.

Earl Warren:

Do you think that’s alright?

Philip M. Haggerty:

I think every United States employee is under the same burden, but they take this oath and they then become a member.

They can be subject to the provisions of the Code, which in effect is a punishment for perjury.

By calling it perjury, I think, does not raise a constitutional issue.

If the state has a right to prevent its employees from either advocating or committing acts in the overthrow of the government by force or violence or becoming members, if it can make that a crime, then what they call it or the length of term is hardly a constitutional issue.

Earl Warren:

Well —

Philip M. Haggerty:

It’s merely a name.

Earl Warren:

The only reason I asked that is this, I understood you to say that it was a crime for anyone to do the things that are proscribed by this Act, whether he’s a public servant or not.

Philip M. Haggerty:

Yes.

Earl Warren:

Isn’t that right?

Well, then why, unless they intend to make it in the nature of perjury, do they — they put — add this condition to the oath of a public servant?

Why wouldn’t he just be —

Philip M. Haggerty:

These I do not know.

Earl Warren:

Why wouldn’t he just be bound by the other laws of the state in that regard?

Philip M. Haggerty:

They are and the other law has — contains a higher penalty.

Philip M. Haggerty:

It’s up to 20 years and the punishment for perjury is only 14.

Earl Warren:

Yes.

Philip M. Haggerty:

The only particular reason I think, is found in subsection (a) so that all employees will have a chance to read this, to present it as a unified thing.

I think it’s a matter of legislative draftsmanship and technique.

Everybody is under the same burden.

A choice can try — the state could prosecute a public employee under either one, but not under both like other statutes in the State of Arizona which we’ve pointed out.

I think this is just a question of legislative draftsmanship and technique to — they belong in different sections of the Code.

One is a criminal law, Title 13, the other is Title 38 which applies to public employees.

I think it’s merely a question of draftsmanship.

Abe Fortas:

Is there any indication as to what the state view is, for purposes of this statute, of these Wobblies that you referred to as being back in the hills by which I understand you to mean the numbers of IWW?

Philip M. Haggerty:

No, I think I doubt it.

I doubt if there even are any now.

I don’t know, but there is only a one time we had some trouble in Arizona.

Abe Fortas:

Yes, I know you did.

Philip M. Haggerty:

But there’s no relationship to that whatsoever.

Abe Fortas:

But there is now.

What — is there anything indicating whether the state would regard that as one of the organizations here, membership in the IWW in the years past?

Philip M. Haggerty:

Well, past activity would be of no bearing anyway, no, they’re certainly nothing.

Abe Fortas:

Well, when does membership cease some of those fellows that used to be back in the hills if they’re not still there?

Wouldn’t it — when do they cease being members of the IWW?

Philip M. Haggerty:

Well, as our Supreme Court said, membership in the Arizona law, is according to what you have said membership means under the Smith Act.

It has to be active membership —

Byron R. White:

(Inaudible)

Philip M. Haggerty:

— and I don’t think they’ve had any chapter meetings for some time.

Byron R. White:

Could there be pleadings about now?

Philip M. Haggerty:

I believe you’ve so said in Scales and Yates.

Byron R. White:

Well, how about in Arizona?

Philip M. Haggerty:

We have, in our decision, in effect, tried to incorporate —

Byron R. White:

The court didn’t —

Philip M. Haggerty:

— your decision.

Byron R. White:

The Court didn’t say that in this case, did it?

Philip M. Haggerty:

In the first decision, it specifically mentioned those cases.

It stated that the legislature —

Byron R. White:

Do you think (Voice Overlap) —

Philip M. Haggerty:

— knew of them —

Byron R. White:

Do you think — do you think the law of Arizona is that membership as used in the laws involved in this case, membership means what it means or what it — what the Smith Act, the meaning is?

Philip M. Haggerty:

Yes.

That is the position the state took before the Supreme Court of the State of Arizona that that is what the meaning should be and that is what we take here.

Byron R. White:

Where?

What’s the citation of the Supreme Court has actually said that?

Philip M. Haggerty:

It has referred to the case and said —

Byron R. White:

I know.

Is that all it said?

Philip M. Haggerty:

In its language, (Voice Overlap) —

Byron R. White:

(Voice Overlap)

Philip M. Haggerty:

— that the legislature was aware of the language of these cases.

Although the legislature did not specifically mention them, it did say that it had considered (Voice Overlap) —

Byron R. White:

(Inaudible) you can’t cite — there is any Court holding to that effect, do you say?

Philip M. Haggerty:

No, but they would be so advised by the Attorney General’s Office, and they were advised in the state argument that this is the meaning we want, what you have said, and that is what we would say to this Court today, that we would go by your decisions in these matters.

Byron R. White:

So which — do you think we should accept that as a clause on the statute?

I mean, is it — as a —

Philip M. Haggerty:

As a superimposition —

Byron R. White:

As authoritative interpretation of the statute?

Philip M. Haggerty:

Yes, the same way as this Court did for Maryland in the Duran case.

Byron R. White:

Just like we should accept what the Supreme Court said about other phrases of this case, about what “aid” means or “advocacy” or —

Philip M. Haggerty:

Aid is — aid in the commission of an act.

It’s not aid as it appears in Baggett versus Bullitt.

Byron R. White:

Oh, I understand that.

Philip M. Haggerty:

And advocacy —

Byron R. White:

But anyway —

Philip M. Haggerty:

Advocacy wasn’t really raised in the first case, I don’t believe.

It was only discussed in the remand.

In other words, the vagueness issue was not either strongly argued, it was raised but wasn’t considered so much in the first decision as it was in the second in light of the remand of this Court —

Byron R. White:

But anyway we are bound —

Philip M. Haggerty:

— specifically referring to it.

Byron R. White:

We’re bound by your Court’s interpretation of that — the meaning of that — of those words, I suppose, and you think we’re also — should accept that — the membership.

Philip M. Haggerty:

Yes.

Byron R. White:

The law is.

William J. Brennan, Jr.:

Mr. Haggerty, I wonder — is the reference you’re making to what appears at 47 of the record?

Philip M. Haggerty:

I’ll have to find out which case that is.

William J. Brennan, Jr.:

I think it’s — I understood this was the first case, isn’t it?

Philip M. Haggerty:

Yes, this is the first case.

William J. Brennan, Jr.:

Is that what you’re talking about?

Philip M. Haggerty:

Yes.

William J. Brennan, Jr.:

What — is this what you say adopts the Scales test of membership?

Philip M. Haggerty:

Yes.

William J. Brennan, Jr.:

Well, how do you get that out of this, may I ask?

Philip M. Haggerty:

Because if they, there was another decision, there was another (Inaudible) of the case.

William J. Brennan, Jr.:

(Inaudible) on page 47, which I suppose —

Philip M. Haggerty:

No, I think no, it’s found on page 44.

We assume that the legislature was not unaware of the decision of the Supreme Court of the United States — decisions, pardon me.

William J. Brennan, Jr.:

No, I know but look (Inaudible), therefore used the word “advocacy.”

They were talking there about advocacy.

Philip M. Haggerty:

Membership was not considered in that case and perhaps —

William J. Brennan, Jr.:

Now, what —

Philip M. Haggerty:

— was never been fully considered.

William J. Brennan, Jr.:

What’s this mean at page 47?

Speaking of subdivision (e), I’m quoting from the middle paragraph at 47.

“It prohibits any membership in any organization having for one of its purposes the overthrow by force and violence the Government of the State of Arizona or any of its political subdivisions, including passive and nominal membership.”

Cf. Scales v. United States.

William J. Brennan, Jr.:

It seems to me, the Supreme Court had ruled a contract that said that membership here is much broader than it was in Scales versus United States.

Philip M. Haggerty:

I do not believe it has that right to do so.

William J. Brennan, Jr.:

Well, I’m — (Inaudible) you’ve been telling us your Supreme Court has adopted the Scales test and it seems to me what I’ve just read to you indicates that they rejected the Scales test for a broader one including passive and nominal membership.

Philip M. Haggerty:

I believe it went on in its later decisions, the second one.

William J. Brennan, Jr.:

Oh, I — well, that maybe so.

I think you referred it to be the first decision.

I don’t recall it, the second.

Philip M. Haggerty:

Advocacy was in the first decision.

Membership was more, I believe, in the second.

William J. Brennan, Jr.:

Where is this cited?

Philip M. Haggerty:

There, they go into this guiltless knowing behavior and —

Byron R. White:

But certainly what they say about advocacy doesn’t mean a whole lot about membership.

William J. Brennan, Jr.:

If this is the second, beginning at page 72, I don’t even see a reference to membership and certainly no citation —

Philip M. Haggerty:

No, it does not.

William J. Brennan, Jr.:

— to Scales.

Philip M. Haggerty:

I’m sorry.

Seven — the second one is mostly concerned with vagueness.

William J. Brennan, Jr.:

Well, you say the — do you say the Attorney General took this position before the Court, before his own Court that it (Voice Overlap) —

Philip M. Haggerty:

I cannot recall any specific question.

This is always our approach.

That’s the decisions of this Court, first of all, as to advocacy and then it’s to act to the membership should be the guidelines.

(Inaudible)

Philip M. Haggerty:

I don’t know how much of an issue was actually made in membership, frankly, I don’t, can’t recall.

I have the briefs —

Byron R. White:

Are there any adaptations?

Philip M. Haggerty:

Pardon me?

Byron R. White:

Are there any adaptations?

Philip M. Haggerty:

In Arizona?

Byron R. White:

Yes.

Philip M. Haggerty:

Arising out of this law, no one has been prosecuted and there are no other pending cases.

Byron R. White:

Is there no other constructions that (Inaudible)?

Philip M. Haggerty:

No, nobody else has raised the issue, they say, they haven’t.

I have no idea how many — how many persons in the State of Arizona might have left employment because of this or not.

Nobody would have any idea.

I think in the questions, I believe Mr. Justice Stewart pointed out, people might have left and nobody knew why.

And this might very well happened if people did object to it.

Our appendix does show that there was a pretty heavy turnover in state government.

It suggests some of the reasons there for.

I think Mr. Morgan in his opening argument, almost asked this Court to say that the Fourteenth Amendment requires that every public servant in every state have civil service tenure.

I don’t think there is any such right.

Public employees in the State of Arizona by enlarge do not.

University professors do not and they’d be fired by the Board of Regents for — or in the judgment of the Board of Regents seems to be in the best interest of the universities.

Suppose —

Potter Stewart:

University professors do not have tenure in the State of Arizona, did you say?

Philip M. Haggerty:

University professors, not by statute.

I am not completely familiar with the regulations of the Board of Regents, but not by statute.

The statute specifically says that they may be discharged by the Board of Regents when it appears to be the Board — in the judgment of the Board of Regents, in the best interest of the university.

Potter Stewart:

They have much trouble in getting faculty down there?

Philip M. Haggerty:

Apparently not and I am not too familiar with it.

But the schools have increased considerably in size and I assume that the staffs had increased in proportion.

We have had bills introduced in the legislature to limit the number of students.

I don’t know if that has any relation to the number of faculty members available or just the physical plans involved.

As I’ve pointed out, most state employees have no tenure rights.Some are required to by virtue of agreements of the Federal Government.

One agency has it pretty much on its own, for no particular reason except they wanted to get out of politics.

And in concurrence with this, they passed a Hatch Act of it’s — of their own.

I think this is of some importance in our consideration.

The Federal Government has severely limited the area of expression and association and activity of Federal Government employees and millions of state government employees by their Hatch Act which prohibits them from talking in an area which is certainly of governmental interest no matter how you look at this clear and present danger argument.

A person is forbidden to take an active part of the political management or in political campaigns.

A government — Federal Government employee is forbidden to participate in any strike or to assert the right to strike against the Government of the United States or of any agency, both under the Hatch Act — both in Title V, United States Code, Section 118, one is (i) and the other is (p).

The Congress has saw — seen fit to regulate the association of many of its employees and their activities in a certainly regulated free speech of governmental employees.

Philip M. Haggerty:

They have allowed exceptions in the area around Washington for local political activity that by enlarged, government employees cannot take an active part in politics.

And any state employee of any agency receiving federal funds is under the same prohibition.

We had state, Damon, Fiche, Welfare and Employment Security, many other state agencies.

I think that that is a clear example of the Court’s attitude that every now and then, the best interest of the people have to be placed above the particular interest of a few of the people in either freedom of speech or in freedom of association.

I don’t think any of the other cases that this Court has handled in this particular area would be any indication that our law is invalid.

The cases which have been rejected recently Dombrowski versus Pfister from Louisiana.

The language used there was advocate, abet, advice, or teach the overthrow, anyone to overthrow or destroy by revolution, force and violence, or other unlawful meanings.

And later on refers to unconstitutional or illegal means.

Here in Arizona, the acts prohibited are advocacy of the overthrow of the government by force or violence and that’s it, beside from actual acts or aiding in the commission of an actual act.

In the Washington case, Baggett versus Bullitt, which this Court apparently was interested in its remand order.

The particular law involved was interpreted and I think reasonably accurately that persons require — are required to swear that they understand this oath and they might reasonably conclude that any person who aids the Communist Party or who teaches or advices known members of the party is a subversive person because such teaching or advice may now or at some future date aid the activities of the parties.

The Arizona law simply does not have the same language.

It cannot be compared to Baggett versus Bullitt because it is simply not the same law.

It doesn’t say the same thing and I think that if there is a comparison between a law and — one law and another and the comparison fails, the laws must stand.

There are some mentioned of the bill of attainder, both in the brief and in the arguments.

I think the recent decision of this Court in United States versus Brown completely answers the problem.

The federal statute issued then anybody who had been a member of the Communist Party for five years prior to becoming a Union official was guilty of a crime.

The only choice he had was to quit the Union or incur a criminal liability.

This Court compared it to the older Act sustained in the American Communications Association versus Douds where there was no fiver year prior period mentioned and stated that the intention was to forestall future dangerous conduct and that there was no one who by a voluntary alteration of the loyalties which impel him to action can become eligible to sign the affidavit.

We cannot conclude that this action is a bill of attainder.

We have the same thing in Arizona.No past conduct is commented on in any way.

It cannot be the basis for any separation from public employment.

So, we simply do not have a bill of attainder issue.

As I said before, I think there is certainly no court or public opinion.

A person may not re — sign the oath, may refuse for any number of reasons, and nobody need ever know about it.

The only reason why it is known is, if they choose to make the issue themselves.

And I think having chosen to become a (Inaudible), they cannot complain about it.

I simply think that there are no prior decisions of this Court which would indicate that the very simple and clear language of the Arizona law is unconstitutional.

We have gotten rid of, by anticipation, the words which were found to be vague in Cramp versus the Board of Public Instruction, “aid, abet, advice, or lend counsel or assistance to” is not in our law.

We don’t have the words that were found defective in the Washington statute in Baggett versus Bullitt.

Philip M. Haggerty:

We don’t have the complicated machinery of presumption of guilt by membership in an organization that might have been cited by non-activity Americans — not (Inaudible) — pardon me, the Committee for Un-American Activities that was part of Louisiana law condemned in the Dombrowski case.

We have no machinery whereby the Attorney General or anybody else goes out and investigates or questions people about activities.

The Arizona legislature was quite clear in its — the statement of a judiciary committee, that’s part of our appendix, saying that these things are really the job of the Federal Government and they ought to do it and let them do it.

The only thing that the Arizona legislature created were three simple crimes, the first one, there can be no question about it.

The second one I think is also not subject to any serious doubt whatsoever.

Earl Warren:

Could you name those crimes please?

Philip M. Haggerty:

Either acting to overthrow or aiding in the commission of an act to overthrow the government by force or violence.

Earl Warren:

That’s the first one.

Philip M. Haggerty:

That’s the first one.

The other one —

Potter Stewart:

The government of — what government?

That’s what —

Philip M. Haggerty:

The State of Arizona or the United States.

Potter Stewart:

Either?

Philip M. Haggerty:

Either or.

Potter Stewart:

Is that clear?

Philip M. Haggerty:

Well, no.

In our law, it’s only State of Arizona.

I’m sorry.

The government of this state or any of its political subdivisions, yes, advocating the overthrow.

Potter Stewart:

Excuse me.

I’m sorry to have interrupted you.

Philip M. Haggerty:

Yes, pardon me, a person who (Inaudible) — knowingly or willfully advocates the overthrow by force or violence of the government of this state or any of its political subdivisions.

And, the third one is a person who knowingly or willfully becomes or remains a member of the Communist Party of the United States, the same somewhat lengthy section that Mr. Morgan earlier read, or it’s successors or of any other — any of its subordinate organizations or of any other organization having for one of its purposes the overthrow by force or violence of the Government of the State of Arizona and said person had knowledge of said unlawful purpose of said Communist Party of the United States or of said subordinate organ — or other organization.

So, it’s actual acts or aiding in the commission of an act.

Abe Fortas:

Counsel, do I correctly understand that two of the five Justices — there are five, aren’t they —

Philip M. Haggerty:

Yes.

Abe Fortas:

— in the Supreme Court of Arizona?

That two of the five Justices were of the opinion that a hearing would be necessary, an opportunity for a hearing would be necessary prior to requiring that the affidavit be signed as a condition of public employment.

Philip M. Haggerty:

In the first decision, yes, but they were special concurrences and they’re somewhat —

Abe Fortas:

(Inaudible) that was there.

That was the basis of the concurrences —

Philip M. Haggerty:

Yes.

Abe Fortas:

— however.

And do I correctly understand that the Chief Justice of the Arizona Supreme Court in his concurrence said that the statute relevant part was saved here because of — there was an opportunity to petitioner to obtain a hearing under some other law because she was a school — temporary school teacher, something like that, right?

Philip M. Haggerty:

Yes.

Abe Fortas:

Now, as I understand it, the basic premise on which the Chief Justice’s concurrence relied was that it cannot constitutionally deprive people of an opportunity for public employment if the basis is discriminatory and reasonable, correct?

Philip M. Haggerty:

By — it may not in a loyalty oath requirement such as this one, make refusal to take the oath a conclusive basis for exclusion from public service.

That’s (Voice Overlap) —

Abe Fortas:

And do you disagree with that premise?

Philip M. Haggerty:

Yes.

Abe Fortas:

You do?

Is it your proposition — is it your submission that the state may exclude people from public employment on any basis however discriminatory?

Philip M. Haggerty:

By our own Civil Rights Act, they may not do it on the basis of either sex or color or religion.

Abe Fortas:

Otherwise, they may do it?

Philip M. Haggerty:

Unless there is some intervening special statute, some agencies are protected (Voice Overlap) —

Abe Fortas:

So, I take it that you do take the issue with the concurring opinion of the Chief Justice of the Supreme Court of Arizona on that point, that is to say, whether a person may be deprived of an opportunity for public service on unreasonable or discriminatory basis?

Philip M. Haggerty:

I would doubt that this is an unreasonable or discriminatory basis.

Abe Fortas:

I’m asking about the general proposition.

Philip M. Haggerty:

It would be very difficult to say they would — that you — I believe most agencies and public bodies can fire the people and may need — give no reason.

Abe Fortas:

So, if you —

Philip M. Haggerty:

If they could show a pattern of discrimination there might be an issue.

In other words, if people were discriminated against on a continual basis in such a way, there could be a pattern, there might be an equitable remedy.

There’s no statutory remedy and the matter has never been decided by our Supreme Court.

Abe Fortas:

Well, as I understand it, the Chief Justice of your Court in his concurring opinion here said that petitioner represents that she refuses to take this oath because of the moral teachings of her religion.

And that that has nothing to do with subversion and unless an opportunity is afforded to her for a hearing in which she can be relieved of this disqualification upon the showing that her refusal to sign has nothing to do with subversion.

Unless such an opportunity for a hearing is provided then the statute would not be valid at least as applied to her.

Philip M. Haggerty:

Well, I believe our (Inaudible) — Chief Justice misinterpreted the state in the record in the pleadings.

As Mr. Morgan has said, it’s not here so much because she has any direct personal objection.

I think he went a little bit off on that.

Philip M. Haggerty:

This was brought as a class action but I believe he said here today that it wasn’t a personal objection in response to a question by Mr. Justice Stewart.

Abe Fortas:

Are you saying that that issue is not before this Court, that is to say, an issue presented by a person who says that she is being deprived of her right, if there is one, to have a crack in government employment on a non-discriminatory basis because she’s not being given an opportunity for a hearing in which he can show that her refusal to sign the statute has no connection whatever with subversion but is instead based on religious principles?

Philip M. Haggerty:

Well —

Abe Fortas:

Is that question —

Philip M. Haggerty:

The attack was brought on the total statute as part of the religious feeling on the part of the plaintiff even though there was no personal direct religious feelings as far as they — the specific oath was concerned, if it had been divorced from the rest of the statute.

I think the way Mr. Justice Bernstein felt was that — I think he believed that her belief was confined solely to her religious objection to an oath, as a religious objection, in other words, personal to her only.

But, I disagree with his conclusions entirely that a person — I believe it could happen where a person could be disqualified for an employment solely because of religion and that there is nothing particularly unconstitutional in that.

For instance, the only crime in our constitution is one which arose out of a religious belief and is still imposed by people solely on religious ground.

Abe Fortas:

Do you think the state —

Philip M. Haggerty:

The only Arizona crime in the constitution is polygamy.

Abe Fortas:

Do you think the state could constitutionally provide that no Protestant or no Catholics could hold public office?

Philip M. Haggerty:

No.

But I believe there are some — there could be religions of such a type of belief that they could not legitimately be allowed to hold office.

There are still perhaps, in India today, people who by their religion believe in ritual assassination.

This is a religious belief.

I don’t think just putting the name religion on it immediately removes it from state activity.

There are people whom by religion might say that they can only work one or two days of the week that there should five Sabbaths.

Well, obviously, if everybody else in the state is working five or six days a week, I think this would be sufficient grounds that’ll exclude them from employment, that they’re inefficient and unworkable having them work only two days a week.

They may say that’s because of their religion.

The state can say, “You may have your religion but if it interferes with the government so much, you’ve got to take your choice.”

Abe Fortas:

How about excluding — state law excluding people who won’t work on Saturday?

Philip M. Haggerty:

Well, most don’t work on Saturday.

That’s getting a little close.

It might be considered unreasonable because the interference with the governmental activity would be minimal.

I think it’s just simply a question of balancing the judgment at all times.

I know, in the Army, the Seventh Day Adventists were excused from military duty on Saturdays.

They never showed up in formations or drill or parades, and the Army got along with them.

So, I presume the state could also.

Incident — I think it’s simply a question degree and not of being absolute in one way or the other.

After all, we’re not abridging their free exercise of religion, but it goes back to the old statement of Justice Holmes that a person has a right to be — talk politics but not a right to be a policeman.

Philip M. Haggerty:

There has always been some limitation on public employment activities and many of them approach the area of the otherwise untouchable constitutionally protected principles, but the government has a right to bargain a little bit in the interest of all the people which it is suppose to represent.

And, I don’t think the bargaining it has done in this case is in any way unreasonable.

I don’t think it even begins to create a problem, much less one that would be serious enough striking down a law such as the one which the Arizona legislature passed.

I believe I have some time and I have nothing further unless the Court has some questions.

Earl Warren:

And do — did I understand you to say that there is a statute which makes it a crime for any person to belong to any of the organizations that are proscribed by this Act?

Philip M. Haggerty:

To belong to any organization if they know that one its purposes is dedicated to the overthrow of government by force or violence.

Earl Warren:

Does the Act say, “If they know”?

Philip M. Haggerty:

“Knowingly” it says.

Earl Warren:

Knowingly.

Philip M. Haggerty:

Specifically, this is the sedition section in there, as 13-707, and, “Said person had knowledge of said unlawful purpose of said Communist Party or of said subordinate or other organization.”

The unlawful purpose, of course, can only refer to the overthrow by force or violence which is the clause immediately preceding.

So, he’d have to have knowledge.

Earl Warren:

They have to have knowledge?

Philip M. Haggerty:

And it applies to everyone.

Earl Warren:

I’m just wondering what the — but real purpose of this is, if all of these things equally applied to other people, why do you — why do they have this subdivision (e) which makes it perjury for a person to do something years after he takes the oath or perhaps he had no intention of doing that before — at the time he took the oath, why wouldn’t they prosecute a public officer or a public employee for doing these things exactly in the manner that it prosecutes other people?

Why do they have to attach this also to the oath, which is the oath that’s commonly taken in all states of the Union?

What purpose does it serve to do that?

Philip M. Haggerty:

It serves practically very little purpose.

I think it serves primarily the purpose of following prior legislative acts, such as, you can be prosecuted under the Smith Act but a federal employee can also be prosecuted by virtue of violation of the oath of office which he takes.

They’re just following a legislative habit, a demand on the part of professional legislative council to have everything in league and in order and to get the information to the public employees fairly quick.

But it serves no real practical purpose.

I don’t think that is something which the notice would create a constitutional issue.

There are two crimes but you can only be prosecuted for one if you’re a public employee.

And of course, if you’re a citizen, you can only be prosecuted under the one.

But the burden is no higher.

It does not state so here, but the penalty for perjury in Arizona, the maximum is 14 years.

The maximum for sedition under the other Act is 20 years.

So, there is no higher burden.

Thank you.

Earl Warren:

Very well.

Earl Warren:

Mr. Morgan.

W. Edward Morgan:

Mr. Chief Justice.

I think that to one as — speculations why the statute was created, one may speculate also that it was a time of high tension and feelings within our state with some attempt to discipline its public employees possibly without any real understanding of the problem itself.

In connection with the University of Arizona and tenure of university professors, I think the Justice answered — maybe who asked that question.

The University of Arizona has been centered for lack of procedural due process to its university professors by the AAUP.

I forget which Justice asked that question.

In the — I noticed that in the State of Arizona, in terms of any commitments made by the Attorney General here today, several things.

One, its elective office of four years term, our office of the Supreme Court is for six years, changing every two years on a term but the Chief Justice, being Chief Justice by the fact that he has the minimum term still to — of elective office to run.

Potter Stewart:

Is that the way Chief Justiceship goes?

W. Edward Morgan:

Yes.

Potter Stewart:

The man with the —

W. Edward Morgan:

It gives him a better break at the polls if he’s the Chief Justice.

Potter Stewart:

The man whose election comes up next.

W. Edward Morgan:

(Inaudible) for reelection.

It’s very nice, practical, political answer though.

The — I think you get to a problem with this — with the double legislation in this field and I think this Court dealt in part with it in Cole versus Young in terms of federal statutes in question of whether or not it would allow the Federal Government to go beyond in a particular case and apply a rather ruthless application of a man being fired rather than using a longer and more cumbersome and more protective system for firing.

In Cole versus Young, which I think this Court started to recognize that if there are two ways for the government to accomplish an end, that it should accept the one which does the least violence.

And, in the State of Arizona, here, an undue burden is put upon the individual to sign a loyalty oath or sign this oath without — when there’s no real effective need for it because it would be a crime in any event.

But, it places him in a position where he doesn’t know what his conduct may be.

One further matter, don’t mistake our position in terms of our claim to the First Amendment in terms of the particular individual appellant, Mrs. Elfbrandt’s position, vis-à-vis Section (e).

On hers, it is a religious dissuasion of — as set forth by Justice Fortas, I believe, your — an explanation and I wish the record would be very clear that we don’t withdraw that claim.

We bring that claim before you that there’s a violation by a lack of procedural due process of her ability to explain her position.

One other thing on that matter —

Potter Stewart:

What is it?

I asked you right at the outset whether — because of her religion, she object as to taking an oath as such and you said, “Well no, she didn’t.”

W. Edward Morgan:

No, not (Voice Overlap) —

Potter Stewart:

She confirmed it.

W. Edward Morgan:

That’s right.

The hortatory oath.

Potter Stewart:

Right.

W. Edward Morgan:

No objection.

The oath — as containing Section (e) where she could not explain why, vis-à-vis the provisions of (e), what her position is, she objects to it because there she claims her religious affiliations —

Potter Stewart:

Is there any indication —

W. Edward Morgan:

— may be involved.

Potter Stewart:

— of what particular part of her religious beliefs would —

W. Edward Morgan:

No.

And there’s no record in this regard and therefore I may not speak on it.

No record was made on this, not within the statement of facts of this case as set forth.

Notice, vis-à-vis the question of the interpretation by the Supreme Court of the State of Arizona, notice that in the Duran case, what you accomplish was that the Attorney General came back with a representation that the oath — the wording of the oath submitted to the individuals was changed.

And, this is not the case in the State of Arizona.

What we have is, so far, two changes in the wording by two decisions before the Supreme Court, one on advocacy and the other on aid.

And our statute is very loose in the word of “aid” bringing you within the prescription and all the remainder of the words are still left with vagueness.

What type of organization?

What type of membership?

What type of organization having one of its purposes the forcible overthrowWhat in substance is our position unless the Court has some questions?

Earl Warren:

We’ll adjourn now.