Egan v. Moore

• Decision Date: 18 December 1962
• Citation: 235 N.Y.S.2d 995,36 Misc.2d 967
• Parties: William W. EGAN, Petitioner, v. Frank C. MOORE, Chairman, Mrs. John A. Warner, Vice-Chairman, and Warren J. Clute, Jr., et al., as Trustees of the State University of the State of New York, Respondents.
• Court: New York Supreme Court

Page 995

235 N.Y.S.2d 995

36 Misc.2d 967

William W. EGAN, Petitioner, v. Frank C. MOORE, Chairman, Mrs. John A. Warner Vice-Chairman, and Warren J. Clute, Jr., et al as Trustees of the State University of the State of New York, Respondents.

Supreme Court, Albany County.

Dec. 18, 1962.

Pennock & Roberts, Albany, John H. Pennock, Albany, of counsel, for petitioner.

John C. Crary, Jr., Albany, for respondents, in opposition.

RUSSELL G. HUNT, Justice.

This proceeding was commenced pursuant to article 78 of the Civil Practice Act to require the respondent trustees to withhold the use of publicly owned and supported educational facilities of the State University at Buffalo from an avowed member of the Communist Party (and so known to the trustees, it was admitted in the answer and upon the argument herein) in accordance with their statement of 'Policy on use of university facilities' made in September 1956 (annexed to the answer herein) and wherein it was declared that the use of such facilities would be denied to 'persons who advocate the over-throw of our government by violence'.

It appears that during the time the facilities in question were owned and operated by the University of Buffalo, a private institution, an invitation was extended to Herbert Aptheker, a ranking member of the Communist Party, to use the facilities of that University to expound communism to the students and the public. Prior to the appearance of the speaker, that University was, on August 31, 1962, merged with the State University (Education Law, sec. 355; see, also, Laws of 1962, ch. 980); title to the real property vested in the People of the State of New York and such became publicly owned and supported for higher educational purposes pursuant to Education Law, sec. 352. It is not asserted, however, that the respondent trustees assumed any contractual obligation in respect of Mr. Aptheker as a result of the merger. The State University is a corporation created within the State Education Department and 'under the board of regents' (Education Law, sec. 352). Its 'planning functions' and 'administrative functions' are subject to the general supervision and approval of the Board of Regents (id. secs. 354, 355). It 'is an integral part of the government of the State' (State University of New York v. Syracuse University, 285 App.Div. 59, 61, 135 N.Y.S.2d 539, 542) and as such is subject to the immediate control of the Board of Regents. The latter is the head of the University of the State of New York and of the State Education Department and is charged with the general management and supervision of all education in the State (New York Constituion, art. 5, sec. 4; art. 11, sec. 2; and, Education Law, secs. 101, 201, 207). In 1949 the State Legislature (Laws 1949, ch. 360) declared the Communist Party to be subversive and directed the Board of Regents 'to take affirmative action to meet this grave menace'. The Regents, after notice and hearing, listed as subversive the Communist Party of the United States and the Communist Party of New York State. Members of that party may not be employed in the State's publicly owned and operated schools, colleges and other institutions of higher education (Education Law, sec. 3022; see, also, Laws 1958, ch. 503; Adler et al. v. Wilson, 203 Misc. 456, 123 N.Y.S.2d 806, affd. 282 App.Div. 418, 123 N.Y.S.2d 655, leave to appeal denied 306 N.Y. 981, 115 N.E.2d 437; Lederman et al. v. Board of Education of the City of New York, 276 App.Div. 527, 96 N.Y.S.2d 466, affd. 301 N.Y. 476, 95 N.E.2d 806, app. dism. Thompson v. Wallin, 342 U.S. 801, 72 S.Ct. 92, 96 L.Ed. 607, affd. Adler v. Board of Ed. of City of New York, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517). Officers and employees of the State or of any civil division of the State may not be members of the Communist Party and retain their positions, (Civil Service Law, sec. 105; see, Lederman et al. v. Board of Education of the City of New York, supra). The Judiciary Law, section 665-a declares ineligible for jury service a member of the Communist Party and any one who belongs to a subversive organization; see, also, Executive Law, section 167. Our Court of Appeals has held that the Communist Party is subversive (Matter of Daniman v. Board of Education of the City of New York, 306 N.Y. 532, 541, 119 N.E.2d 373, 379). In Matter of Lerner v. Casey (2 A.D.2d 1, 154 N.Y.S.2d 461, affd. 2 N.Y.2d 355, 161 N.Y.S.2d 7, 141 N.E.2d 533, affd. 357 U.S. 468, 78 S.Ct. 1311, 1324, 2 L.Ed.2d 1423) it was said (2 A.D.2d 1, 5, 154 N.Y.S.2d 461, 465), 'It cannot be gainsaid that the communist conspiracy is a cancer threatening our nation's existence.' The Congress of the United States has so pronounced (50 U.S.C.A. ch. 23) and, so, too, the United States Supreme Court (see, Dennis v. United States, 341 U.S. 494, 547, 70 S.Ct. 519, 94 L.Ed. 734). The facts behind these pronouncements 'are so well established and known that recognition of them without further proof is a right and duty (see, East New York Sav. Bank v. Hahn, 293 N.Y. 622, 627, 59 N.E.2d 625, 626, affd. 326 U.S. 230, 66 S.Ct. 69, 90 L.Ed. 34)' (Matter of Albertson v. Lubin, 8 N.Y.2d 77, 85, 202 N.Y.S .2d 5, 10, 168 N.E.2d 242, 245, rev. on other grounds, communist Party, U.S.A. v. Catherwood, Industrial Commissioner, 367 U.S. 389, 81 S.Ct. 1465, 6 L.Ed.2d 919). This is our public policy. Public policy of the State is 'set forth in its constitution, statutes and judicial records' (Lerner v. Casey, Sup., 138 N.Y.S.2d 777, at 785, and affd. 2 A.D.2d 1, 154 N.Y.S.2d 461, affd. 2 N.Y.2d 355, 161 N.Y.S.2d 7, 141 N.E.2d 533). And, "Whatever is injurious to the interests of the public is void, on the grounds of public policy', Naylor, Benzon & Co. v. Krainische Industrie Gessellschaft, L.R. [1918] 1 K.B. 331, 342, 343' (Flegenheimer, etc. v. Brogan, 284 N.Y. 268, 272, 30 N.E.2d 591, 593, 132 A.L.R. 613).

It is appropriate and timely to refer, also, to the 1962 'F B I Annual Report' of John Edgar Hoover, Director of the Federal Bureau of Investigation, U. S. Department of Justice, wherein Mr. Hoover (the official expert in this Country on communism) reported (p. 25) that 'The international communist conspiracy, an avowed enemy of the democratic system of government, is constantly assaulting this Nation with its spies, its propaganda and its domestic adherents'; and, of significance, in relation to the instant case, is the statement (p. 28) that 'Most successful of all its efforts was its speaking campaign, especially before college groups. From late October 1961 through May 1962, leaders of the Communist Party, U.S.A., made 48 speeches before groups of college students all across the nation. Approximately 43,000 persons heard these talks. Encouraged by the early success of college appearances the Party established a lecture and information bureau and early in 1962 sent a letter to college newspaper editors offering speakers on communism. Near the end of the 1962 fiscal year, the party already was lining up speeches for the coming academic year'. In a speech delivered on October 9, 1962, before the National Convention of the American Legion at Las Vegas, Mr. Hoover said, 'The communists are experts in the practice of treachery and deceit * * * Foremost among their targets have been America's young people, for the aim of communism is world youth and the capture and corruption of that youth.' In relation to the Communist Party's speaking program before college groups he said that one of the speakers was the 'Party's general secretary, exconvict Gus Hall' whose presence, on November 9, 1962, with other well known communists at the Russian United Nations Mission in New York City, is a matter of public knowledge. From Moscow, Mr. Hoover said, the Communist Party in this country, 'actually received orders and financial support'. Moscow, he said, is 'the fountain head of world communism'. See, also, the review of Gus Hall's pamphlet 'End the Cold War' which was 'prepared by the Lecture Information Bureau of the C.P.U.S.A.' and published in 'Political Affairs' for September 1962, a publication of the Communist Party, of which Herbert Aptheker is editor. The pamphlet, described by the editor as 'interesting and helpful', emphasizes the importance of Communist Party speakers having access to colleges and schools and the youth of the Country in furtherance of communism. The review stresses the importance, amongst other things, of Communist Party workers arranging 'to speak on radio and in colleges. It requires struggle in many cases, but it can be done'; and, also, 'to pay the greatest attention to youth'. In the public letter of the Hon. Walter J. Mahoney, Temporary President and Majority Leader of the New York State Senate, to the Chairman of the respondent Board of Trustees, and made a part of respondents' answer herein, protesting against the use of the State University's educational facilities for the advocacy of communism by Mr. Aptheker, he pointed out that Gus Hall had been barred from the campus of Fairleigh Dickinson University upon the ground that he 'has thoroughly disqualified himself as a recipient of the traditional privileges of an academic and intellectual community in a free society'. Senator Mahoney said, also, that 'It is the established policy of our government * * * that membership in the Communist Party, U.S.A., automatically entails advocacy of the overthrow of our government by force and violence'. This is a matter of which judicial notice will be taken (Matter of Albertson v. Lubin, supra; Matter of Daniman v. Board of Education, supra; Carlson v. Landon, 187 F.2d 991, 997, affd. 342 U.S. 524, 565, 72 S.Ct. 525, 96 L.Ed. 547).

The respondents' own statement of policy conforms with State policy. They must go all the way, however, and comply with State policy, in toto. Administratively, the trustees cannot apply a different policy. The State is supreme 'over its creatures' and this the...