Albertson v. Subversive Activities Control Board

• Decision Date: 15 November 1965
• Docket Number: No. 3,3
• Parties: William ALBERTSON and Roscoe Quincy Proctor, Petitioners, v. SUBVERSIVE ACTIVITIES CONTROL BOARD
• Court: U.S. Supreme Court

382 U.S. 70

86 S.Ct. 194

15 L.Ed.2d 165

William ALBERTSON and Roscoe Quincy Proctor, Petitioners,

v SUBVERSIVE ACTIVITIES CONTROL BOARD.

No. 3.

Argued Oct. 18, 1965.

Decided Nov. 15, 1965.

[Syllabus from pages 70-71 intentionally omitted]

John J. Abt, New York City, for petitioners.

Kevin T. Maroney, Washington, D.C., for respondent.

Mr. Justice BRENNAN delivered the opinion of the Court.

The Communist Party of the United States of America failed to register with the Attorney General as required by the order of the Subversive Activities Control Board sustained in Communist Party of the United States v. SACB, 367 U.S 1, 81 S.Ct. 1357, 6 L.Ed.2d 625.¹ Accordingly, no list of Party members was filed as required by § 7(d)(4) of the Subversive Activities Control Act of 1950, 64 Stat. 993—994, 50 U.S.C. § 786(d)(4) (1964 ed.).² Sections 8(a) and (c) of the Act provide that, in that circumstance, each member of the organization must register and file a registration statement; in default thereof, § 13(a) authorizes the Attorney General to petition the Board for an order requiring the member to register.³ The Attorney General invoked § 13(a) against petitioners, and the Board, after evidentiary hearings, determined that petitioners were Party members and ordered each of them to register pursuant to §§ 8(a) and (c). Review of the orders was sought by petitioners in the Court of Appeals for the District of Columbia Circuit under § 14(a).⁴ The Court of Appeals affirmed the orders, 118 U.S.App.D.C. 117, 332 F.2d 317. We granted certiorari, 381 U.S. 910, 85 S.Ct. 1529, 14 L.Ed.2d 432. We reverse.⁵

I.

Petitioners address several constitutional challenges to the validity of the orders, but we consider only the con- tention that the orders violate their Fifth Amendment privilege against self-incrimination.⁶

The Court of Appeals affirmed the orders without deciding the privilege issue, expressing the view that under our decision in Communist Party, 367 U.S., at 105—110, 81 S.Ct., at 1415—1417, the issue was not ripe for adjudication and would be ripe only in a prosecution for failure to register if the petitioners did not register. 118 U.S.App.D.C. at 121—123, 332 F.2d, at 321—323. We disagree. In Communist Party the Party asserted the privilege on behalf of unnamed officers—those obliged to register the Party and those obliged 'to register for' the Party if it failed to do so.⁷ The self-incrimination claim asserted on behalf of the latter officers was held premature because the Party might choose to register and thus the duty of those officers might never arise. Here, in contrast, the contingencies upon which the members' duty to register arises have already matured; the Party did not register within 30 days after the order to register became final and the requisite 60 days since the order became final have elapsed. As to the officers obliged to register the Party, Communist Party held that the self-incrimination claim asserted on their behalf was not ripe for adjudication be- cause it was not known whether they would ever claim the privilege or whether the claim, if asserted, would be honored by the Attorney General. But with respect to the orders in this case, addressed to named individuals, both these contingencies are foreclosed. Petitioners asserted the privilege in their answers to the Attorney General's petitions; they did not testify at the Board hearings; they again asserted the privilege in the review proceedings in the Court of Appeals. In each instance the Attorney General rejected their claims. Thus, the considerations which led the Court in Communist Party to hold that the claims on behalf of unnamed officers were premature are not present in this case.

There are other reasons for holding that petitioners' self-incrimination claims are ripe for decision. Specific orders requiring petitioners to register have been issued. The Attorney General has promulgated regulations requiring that registration shall be accomplished on Form IS—52a and that the accompanying registration statement shall be a completed Form IS—52,⁸ 28 CFR §§ 11.206, 11.207, and petitioners risk very heavy penalties if they fail to register by completing and filing these forms. Under § 15(a)(2) of the Act, 64 Stat. 1002, 50 U.S.C. § 794(a)(2), for example, each day of failure to register constitutes a separate offense punishable by a fine of up to $10,000 or imprisonment of up to five years, or both.⁹ Petitioners must either register without a decision on the merits of their privilege claims or fail to register and risk onerous and rapidly mounting penalties while awaiting the Government's pleasure whether to initiate a prosecution against them. To ask, in these circumstances, that petitioners await such a prosecution for an adjudication of their self-incrimination claims is in effect, to contend that they should be denied the protection of the Fifth Amendment privilege intended to relieve claimants of the necessity of making a choice between incriminating themselves and risking serious punishments for refusing to do so.

Indeed the Government concedes in its brief in this Court that the Court of Appeals' holding of prematurity was erroneous insofar as petitioners' claims of privilege relate to the Board's power to compel the act of registration and the submission of an accompanying registration statement. The brief candidly acknowledges that, since, § 14(b) provides for judicial review of a Board order to register, petitioners' claims in that regard, like any other contention that an order is invalid, may be heard and determined by the reviewing court—thus distinguishing orders that are not similarly reviewable, see Alexander v. United States, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686; Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783. Nevertheless, the Government argues that petitioners' claims are premature insofar as they relate to 'any particular inquiry' on Forms IS—52a and IS—52. Two contingencies are hypothesized in support of this contention: (1) that the Attorney General might alter the present forms or (2) that he might accept less than fully completed forms.

The distinction upon which this argument is predicated is illusory. Neither the statute nor the regulations draw any distinction between the act of registering and the submission of a registration statement, on the one hand, and, on the other hand, the answering of the inquiries demanded by the forms; the statute and regulations contemplate rather that the questions asked on the forms are to be fully and completely answered. Moreover, the contingencies hypothesized are irrelevant. Petitioners are obliged to register and to submit registration forms in accordance with presently existing regulations; the mere contingency that the Attorney General might revise the regulations at some future time does not render premature their challenge to the existing requirements. Nor can these requirements be viewed as requiring that petitioners answer—at the risk of criminal prosecution for error—only those items which will not incriminate petitioners; full compliance is required. Finally, the Government's argument would do violence to the congressional scheme. The penalties are incurred only upon failure to register as required by final orders and, under § 14(b), orders become final upon completion of judicial review. In so providing, Congress plainly manifested an intention to afford alleged members, prior to criminal prosecution for failure to register, an adjudication of all, not just some, of the claims addressed to the validity of the Board's registration orders. We therefore proceed to a determination of the merits of petitioners' self-incrimination claims.

II.

The risks of incrimination which the petitioners take in registering are obvious. Form IS—52a requires an admission of membership in the Communist Party. Such an admission of membership may be used to prosecute the registrant under the membership clause of the Smith Act, 18 U.S.C. § 2385 (1964 ed.) or under § 4(a) of the Subversive Activities Control Act, 64 Stat. 991, 50 U.S.C. § 783(a) (1964 ed.), to mention only two federal criminal statutes. Scales v. United States, 367 U.S. 203, 211, 81 S.Ct. 1469, 1477, 6 L.Ed.2d 782. Accordingly, we have held that mere association with the Communist Party presents sufficient threat of prosecution to support a claim of privilege. Patricia Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170; Irving Blau v United States, 340 U.S. 332, 71 S.Ct. 301, 95 L.Ed. 306; Brunner v. United States, 343 U.S. 918, 72 S.Ct. 674, 96 L.Ed. 1332; Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668, 99 L.Ed. 964. These cases involved questions to witnesses on the witness stand, but if the admission cannot be compelled in oral testimony, we do not see how compulsion in writing makes a difference for constitutional purposes. Cf. People of New York ex rel. Ferguson v. Reardon, 197 N.Y. 236, 243—244, 90 N.E. 829, 832, 27 L.R.A.,N.S., 141. It follows that the requirement to accomplish registration by completing and filing Form IS—52a is inconsistent with the protection of the Self-Incrimination Clause.

The statutory scheme, in providing that registration 'shall be accompanied' by a registration statement, clearly implies that there is a duty to file Form IS—52, the registration statement, only if there is an enforceable obligation to accomplish registration by completing and filing Form IS—52a. Yet, even if the statute and regulations required petitioners to complete and file Form IS—52 without regard to the validity of the order to register onForm IS—52a, the requirement to complete and file Form IS—52 would also invade the privilege. Like the admission of Party membership demanded by Form IS—52a, the information called for by Form IS—52—the organization of which the registrant is a member his aliases, place and date of birth, a list of offices held in the...