Albertson v. Subversive Activities Control Board

• Decision Date: 23 April 1964
• Docket Number: No. 17492,17623.,17492
• Citation: 332 F.2d 317
• Parties: William ALBERTSON, Petitioner, v. SUBVERSIVE ACTIVITIES CONTROL BOARD, Respondent. Roscoe Quincy PROCTOR, Petitioner, v. SUBVERSIVE ACTIVITIES CONTROL BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

332 F.2d 317 (1964)

William ALBERTSON, Petitioner, v. SUBVERSIVE ACTIVITIES CONTROL BOARD, Respondent.

Roscoe Quincy PROCTOR, Petitioner, v. SUBVERSIVE ACTIVITIES CONTROL BOARD, Respondent.

Nos. 17492, 17623.

United States Court of Appeals District of Columbia Circuit.

Argued October 28, 1963.

Decided April 23, 1964.

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Messrs. John J. Abt, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, and Joseph Forer, Washington, D. C., for petitioners.

Mr. Kevin T. Maroney, Atty., Dept. of Justice, with whom Asst. Atty. Gen., J. Walter Yeagley, Messrs. Frank R. Hunter, Jr., Gen. Counsel, Subversive Activities Control Board, and George B. Searls and Mrs. Lee B. Anderson, Attys., Dept. of Justice, were on the brief, for respondent. Mr. Peter Paul Hanagan, Atty., Subversive Activities Control Board, also entered an appearance for respondent.

Mr. Leonard B. Boudin, New York City, filed a brief in No. 17,623 on behalf of National Lawyers Guild, as amicus curiae, urging reversal.

Before BAZELON, Chief Judge, and BASTIAN and McGOWAN, Circuit Judges.

McGOWAN, Circuit Judge:

These are proceedings for review, pursuant to § 14(a) of the Subversive Activities Control Act (50 U.S.C. § 781 et seq.), of two separate orders of the Subversive Activities Control Board requiring petitioners, Albertson and Proctor, to register under Section 8 of the Act as members of "the Communist Party of the United States of America, a Communist-action organization." Petitioners do not claim any deviation by the Board from the prescribed statutory procedure; nor do they assert that the orders are not supported by adequate evidence. Rather, they attack the orders on the ground that the underlying statutory provisions are, for various reasons, unconstitutional.

These claims of constitutional infirmity fall into two groups. The first is compounded of arguments which import that the orders are invalid because of certain consequences which might flow from failure to comply with them. We do not consider these questions ripe, as yet, for judicial consideration. The second group is addressed to the proposition that the bare existence of orders, without more, impairs petitioners' constitutional rights. As to these grounds, we affirm the Board's action.

I

The scheme of the statute involved in these cases is that, if a Communist-action organization fails to register as required by an order of the Board (issued pursuant to Sections 7 and 13 of the Act) and thereby fails to disclose its membership, the members individually may be compelled to register as such.¹ This individual obligation attaches only after default by the organization, and only after the fact of membership has been found to exist in a proceeding before the Board initiated by the Attorney General against a particular person.² Registration itself consists of filing a signed registration form identifying oneself as a member of the organization and giving one's address.³ The statute also provides that this act of registration is to be accompanied by the filing of a separate registration statement containing such information as the Attorney General may, by regulation, prescribe.⁴ Pursuant to this grant of authority, the Attorney General has called for such additional information as date and place of birth, aliases used during the past ten years, and all offices held in the organization presently or during the preceding twelve months, together with a description of the duties performed during any such tenures of office.⁵ Failure by an individual to comply with a Board order requiring him to register is punishable by a fine of not more than $10,000, or imprisonment for not more than five years, or both, with each day of non-compliance constituting a separate offense. These penalties follow upon con-viction pursuant to the usual criminal processes established independently of the Act.

These proceedings were initiated by the Attorney General's representations to the Board that petitioners were members of the Communist Party of the United States; that that organization had theretofore been found by the Board to be a "Communist-action organization" and ordered to register under Section 7 of the Act; that such organization had not registered; and that, accordingly, the Board should order petitioners to register under Section 8. The answers filed by petitioners denied that the Communist Party was a "Communist-action organization"; refused, by reason of a claim of privilege against self-incrimination, to answer the allegations of petitioners' membership in the Party; and asserted the invalidity of Sections 8 and 13 of the Act on various constitutional grounds. After separate hearings at which the Attorney General adduced evidence and petitioners did not, the orders under review were issued.

II

Petitioners press strongly the contention that the membership registration provisions of the Act collide directly with their Fifth Amendment immunity against self-incrimination, and that, because of this conflict, the Board's orders should now be declared invalid. Congress has, they say, so legislated with respect to the Communist Party that membership therein has taken on direct and serious criminal connotations, creating dangers of such a nature as to relieve against any duty, however imposed, of self-revelation. The argument, in substance, is that there is no room within the Fifth Amendment for the simultaneous operation of the contrasting legislative approaches of prohibition on pain of criminal punishment, on the one hand, and regulation through the publicity of compelled disclosure, on the other.

That the point is not without force is evident from the recent decision of this court in Communist Party v. United States, 118 U.S.App.D.C. ___, 331 F.2d 807 (No. 17,583, decided Dec. 17, 1963). That was an appeal by the Communist Party of the United States from its conviction by a jury on an indictment for failing to register as a Communist-action organization, as required by a Board order issued pursuant to Sections 7 and 15 of the Act. We reversed and remanded for a new trial on the ground that, since the registration requirements involved action on behalf of the organization by an officer or authorized individual who would thereby identify himself with the Party, the self-incrimination shield of the Fifth Amendment placed the prosecution in a criminal trial under the necessity of proving, as an essential element of the crime charged, the availability to the defendant organization of an individual willing to effect the registration and to assume the concomitant risk of criminal exposure. There having been a deficiency of proof in this respect, we set aside the Party's conviction but afforded the Government an opportunity to supply such proof in a new trial.

That case, however, presented us with an appeal from a criminal conviction for refusing to comply with a Board order, and not with a statutory review of the order itself. The latter proceeding, indeed, had already taken place, culminating in the Supreme Court's decision in Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1961), upholding the Board's order which found the Communist Party to be a "Communist-action organization" and which required it to register as such. In that review proceeding, the Party advanced many contentions with respect to the invalidity of the order and of the Act under which it was issued. Many of these were founded in the Constitution. None prevailed, and most were disposed of on the merits. A conspicuous exception in this latter respect was the self-incrimination attack upon the requirement that the Party register.

The Supreme Court explicitly refrained from passing upon the merits of this challenge because it was premature. Communist Party v. SACB, 367 U.S. 1, 105-110, 81 S.Ct. 1357, 1417, 6 L.Ed. 2d 625 (1961). The Court pointed out that there were certain contingencies standing between the bare issuance of the order requiring registration and its enforcement as against a claim of the privilege. One was whether the privilege would in fact be claimed, and another was whether, if claimed, it would be honored. Over and above these matters, however, the Court also noted that any disallowance of a claim of the privilege in the context of this Act is likely to raise complex and difficult legal issues which can best be dealt with in the precise factual setting in which they finally arise. Questions of this nature, said the Court, are "questions which should not be discussed in advance of the necessity of deciding them"; and it went on to say that the point when that necessity exists, if ever, is "when enforcement proceedings for failure to register are instituted against the Party or against its officers."

We think the same reasoning extends to the registration requirements applicable to members of the Party. It is pressed upon us that, unlike the situation as it was before the Supreme Court, here the privilege has been claimed and denied. But the facts relied upon in support of this contention are, in respect of the claim, that the privilege was advanced in petitioners' answers to the Attorney General's petition to the Board initiating these proceedings; and that it was asserted again in the petition for review in this court. With respect to denial, this is said to reside in the action of the Attorney General in continuing the proceedings before the Board in the face of the answers, the action of the Board in issuing the orders, and the action of the Attorney General, as the Board's lawyer, in defending the orders before this court.

But these circumstances were, of course, all present in the record before the Supreme Court in the Communist Party review proceeding, and do not, in and of themselves, offer any basis for differentiating this case from that in terms of prematurity. What is new since...