Hughes v. Kramer

Hamilton, J.

Petitioners, Hildur Josephine Hughes and .Eric Lindberg, are avowed members of the Communist Party. Both were nominated as candidates for state repre*538sentative from the 35th and 27th legislative districts, respectively, by their party assembled in minor party convention. RCW 29.24. Both refused to sign the affidavit of candidacy which, pursuant to RCW 29.24.070,1 must be submitted before a nominee may be certified as an official candidate and obtain a place upon the ballot. The affidavit required is set forth in RCW 29.18.030 as follows:

Further, I do solemnly swear (or affirm) [(1)] that I will support the Constitution and laws of the United States and the Constitution and laws of the state of Washington; [(2)] that I do not advocate the overthrow, destruction, or alteration of the constitutional form of government of the United States or of the state of Washington or any political subdivision of either of them, by revolution, force or violence, and [(3)] that I do not knowingly belong to any organization, foreign or otherwise, which engages in or advocates, the overthrow, destruction or alteration of the constitutional form of government of the United States or of the state of Washington or any political subdivision of either of them, by revolution, force or violence.

Petitioners objected to clauses 2 and 3 and proffered affidavits by the terms of which they swore to clause 1 only. The Secretary of State, asserting that he was required to adhere to the applicable statutes, refused to accept such modified affidavits. Challenging the constitutionality of clauses 2 and 3, petitioners sought a writ of mandate compelling the Secretary of State to accept their proffered affidavits and place their names upon the November, 1972, general election ballot.

*539Petitioners’ application came on for hearing before the court, sitting en banc, on September 25, 1972. Because the Secretary of State had to certify candidates for office by October 16, 1972, the court, after carefully considering and evaluating petitioners’ contentions and arguments, issued a preopinion order which, in pertinent part, provided:

[I] t is ordered that petitioners’ application is hereby denied upon the basis that the affidavit required by ROW 29.18.030 is constitutional when construed to mean only that the affiant signing such affidavit is not then intentionally engaged in one way or another in an attempt to overthrow the government by force or violence, or by illegal and unconstitutional means, and that the affiant is not intentionally and purposefully a member of an organization engaged in such an attempt.

Essentially, petitioners contend that the provisions of clauses 2 and 3 of the statutory oath contravene the rights guaranteed to them under the first and fourteenth amendments to the United States Constitution, asserting that the respective clauses are unconstitutional on their face, over-broad, and unduly vague and uncertain.

In support of their challenges, petitioners point primarily to the words “advocate”, “alteration”, and “revolution”, as utilized in clauses 2 and 3 of the statutory oath. Petitioners assert these words, when given a literal interpretation, bring within the sweep of the oath constitutionally protected speech activities and lawful modifications or changes in government. In furtherance of their contentions, petitioners rely principally upon Baggett v. Bullitt, 377 U.S. 360, 12 L. Ed. 2d 377, 84 S. Ct. 1316 (1964); Keyishian v. Board of Regents, 385 U.S. 589, 17 L. Ed. 2d 629, 87 S. Ct. 675 (1967); and Brandenburg v. Ohio, 395 U.S. 444, 23 L. Ed. 2d 430, 89 S. Ct. 1827 (1969).

As indicated by our order of October 16, 1972, we cannot agree with petitioners’ broad, literal approach to the language of the statutory oath nor with their reliance upon the eases cited.

In reaching our conclusion, we start from the prem*540ise that oaths to support the constitutions and laws of the state and nation, such as contained in clause 1 of the instant oath, are clearly regarded as valid under the first and fourteenth amendments to the Constitution of the United States. Bond v. Floyd, 385 U.S. 116, 17 L. Ed. 2d 235, 87 S. Ct. 339 (1966); Ohlson v. Phillips, 397 U.S. 317, 25 L. Ed. 2d 337, 90 S. Ct. 1124 (1970). Indeed, such oaths in certain instances are constitutionally mandated. The eighth paragraph of article 2, section 1, and the third paragraph of article 6, of the United States Constitution, respectively, provide that the President and all state and federal officers shall be bound by an oath to support the constitution.

Concomitantly, and in keeping with common sense and the common law, our state and federal governments can take appropriate measures to protect and guard against overthrow by force, violence, rebellion, or other illegal or unconstitutional means, including conditioning public employment upon employee abstinence from knowingly and intentionally undertaking, individually or associatively, the violent and unlawful overthrow of the government. Gerende v. Board of Supervisors of Elections, 341 U.S. 56, 95 L. Ed. 745, 71 S. Ct. 565 (1951); Dennis v. United States, 341 U.S. 494, 95 L. Ed. 1137, 71 S. Ct. 857 (1951); Garner v. Board of Pub. Works, 341 U.S. 716, 95 L. Ed. 1317, 71 S. Ct. 909 (1951); Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154, 27 L. Ed. 2d 749, 91 S. Ct. 720 (1971); Cole v. Richardson, 405 U.S. 676, 31 L. Ed. 2d 593, 92 S. Ct. 1332 (1972).

The power of governmental self-preservation is, of course, not absolute. The first amendment, as well as the fourteenth amendment, to the United States Constitution poses pertinent limitations. Thus, security measures in the form of required oaths may not impinge upon First and Fourteenth Amendment freedoms and privileges either directly ■ or indirectly, or tangentially through the vice of impermissible vagueness or overbreadth. Among the rights so protected are the freedoms of political belief, expression, dissension, criticism, and associatio'nal activity, including *541membership in organizations having illegal purposes, unless such purposes are individually known and a specific intent be entertained to accomplish those purposes. Cramp v. Board of Pub. Instruction, 368 U.S. 278, 7 L. Ed. 2d 285, 82 S. Ct. 275 (1961); Baggett v. Bullitt, supra; Elfbrandt v. Russell, 384 U.S. 11, 16 L. Ed. 2d 321, 86 S. Ct. 1238 (1966); Keyishian v. Board of Regents, supra; Whitehill v. Elkins, 389 U.S. 54, 19 L. Ed. 2d 228, 88 S. Ct. 184 (1967); Brandenburg v. Ohio, supra; Baird v. State Bar, 401 U.S. 1, 27 L. Ed. 2d 639, 91 S. Ct. 702 (1971); Connell v. Higginbotham, 403 U.S. 207, 29 L. Ed. 2d 418, 91 S. Ct. 1772 (1971); Cole v. Richardson, supra.

Eull recognition and acknowledgment of the individual rights and privileges constitutionally guaranteed must be accorded by legislatures in prescribing, and courts in adjudging, oaths of allegiance as a condition to public employment. It is essential, in this regard, to bear in mind that the mere abstract advocacy of an idea or belief embracing a concept of force or violence, and the mere knowing membership in an organization espousing an unlawful purpose, standing alone, are constitutionally protected. The line of demarcation comes when advocacy is directed to and becomes an active incitement to imminent violence or illegal action, and organizational membership is accompanied by a specific intent to carry out a known lawless purpose of the organization. Keyishian v. Board of Regents, supra; Brandenburg v. Ohio, supra; Cole v. Richardson, supra.

In the instant case, we do not believe the statutory oath suffers from the same vices found in the statutory schemes involved in the Baggett, Keyishian, or Brandenburg cases. In each of those cases the statutes involved were couched in broad sweeping terms, embracing such verbs, nouns, and adjectives, in conjunction with advocacy, as “advise”, “teach”, “utterance”, “embraces”, “treasonable”, “seditious”, “duty”, “necessity”, and “propriety”, thereby rendering them incapable of meaningful and objective measurement in terms of the extent of their application.

In enacting clauses 2 and 3 of the oath prescribed in *542RCW 29.18.030, we are satisfied the legislature was fully cognizant of the constitutional limitations involved, and sought to be narrowly precise and prudent in the language utilized. Being of that mind, we are convinced that the legislature employed and intended the words “advocate”, “advocates”, “alteration”, and “revolution” in clauses 2 and 3 of the oath, within the context of respective clauses as a whole, to mean personal or organizational advocacy to the point of incitement to imminent overthrow and destruction of constitutional government by force, violence, or overt rebellion, and that the word “knowingly”, as utilized in the context of clause 3, was intended to connote and import the concept of membership in an organization dedicated to the overthrow of constitutional government by unlawful, and unconstitutional means, with individual knowledge of such purpose and with a specific intent to carry out that purpose.

So construed and interpreted, clauses 2 and 3 of the prescribed oath do not run afoul of constitutional limitations imposed by the First and Fourteenth Amendments, for they do not proscribe free individual or organizational political exposition or action, even though such activities be directed toward the end of a sudden, radical — yet lawful— change in our form of government.

It is for the foregoing reasons that we entered the order of October 16, 1972, denying petitioners’ application for a writ of mandate and to which order we now adhere.

Hale, C.J., Finley, Hunter, and Stafford, JJ., concur.

RCW 29.24.070:

“Declarations of candidacy required. If the nominating certificate is valid, each candidate nominated by a minor party convention may file with the secretary of state a declaration of candidacy as nearly as-possible in the form prescribed for candidates subject to primary election, and each candidate must at the time of filing such declaration pay to the secretary of state the fee prescribed by law for candidates.’ subject to primary election. The name of a candidate nominated at a minor party convention shall not be printed upon the election ballot, unless he pays the. fee required by law to be paid by candidates for the same office to be nominated at a primary election.”