Jefferson School of Social Science v. Subversive Act. Con. Bd.

• Citation: 331 F.2d 76
• Decision Date: 17 December 1963
• Docket Number: No. 12876.,12876.
• Parties: JEFFERSON SCHOOL OF SOCIAL SCIENCE, Petitioner, v. SUBVERSIVE ACTIVITIES CONTROL BOARD, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

331 F.2d 76 (1963)

JEFFERSON SCHOOL OF SOCIAL SCIENCE, Petitioner, v. SUBVERSIVE ACTIVITIES CONTROL BOARD, Respondent.

No. 12876.

United States Court of Appeals District of Columbia Circuit.

Argued October 9, 1962.

Decided December 17, 1963.

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Mr. Harry Sacher, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Mr. Joseph Forer, Washington, D. C., was on the brief, for petitioner.

Mr. Kevin T. Maroney, Atty., Dept. of Justice, with whom Mr. Frank R. Hunter, Jr., Gen. Counsel, Subversive Activities Control Board, Mr. George B. Searls, Mrs. Lee B. Anderson, and Mr. Robert L. Keuch, Attys., Dept. of Justice, and Messrs. Charles F. Dirlam and Peter P. Hanagan, Attys., Subversive Activities Control Board, were on the brief, for respondent.

Mr. Benjamin F. Pollack, Atty., Dept. of Justice, also entered an appearance for respondent.

Mr. Edward J. Ennis, New York City, filed a brief on behalf of American Civil Liberties Union, as amicus curiae.

Before BAZELON, Chief Judge, PRETTYMAN, Senior Circuit Judge, and DANAHER, Circuit Judge.

PRETTYMAN, Senior Circuit Judge.

This is another of the cases referred to in Labor Youth League v. Subversive Activities Control Board,¹ decided April 25, 1963. The Jefferson School of Social Science, an unincorporated association, was founded in 1944. According to the Board it was formed in New York City by the Communist Party of the United States through the merger of two Communist Party schools — the School for Democracy and the New York Workers School, — primarily to serve as a training school for the Party. Most of the students who attended the school were members or potential recruits in the Party and while in attendance were trained in the programs, strategy and tactics of the Party through the teaching of Marxism-Leninism.

The Attorney General, on April 20, 1953, petitioned the Board for an order requiring the school to register as a Communist-front organization under Section 7 of the Subversive Activities Control Act of 1950.² After hearings, the Board issued its order and accompanying report on June 30, 1955. After a timely petition for review had been filed in this court, and on November 22, 1961, the school filed a motion to dismiss the appeal and to vacate the Board's order for mootness, alleging that it (the school) was no longer in existence. Pursuant to a remand order, the Board held hearings concerning the existence of the school. A "Report on Remand" was issued and is now before the court.

We first consider the motion to dismiss. Upon such a motion, based upon alleged mootness on account of the alleged dissolution of an organization-party, the burden of proof is of course upon the movant. We agree with the Board that in the case at bar the Jefferson School failed in this burden.

The hearing upon remand was long. The attorney for the school, the trustee upon liquidation, who had been director of faculty and curriculum, a trustee of the school who was on the faculty, two additional members of the faculty, the real estate agent who handled such matters for the school, and the accountant who prepared its tax returns all testified. It was established that on November 26, 1956, eight persons, said by a witness to be all of the trustees of the school at that time, signed a resolution and agreement of dissolution. The document was definite and final in its terms. Each signer agreed with the others "that said school and the conduct and operation thereof by THE JEFFERSON SCHOOL OF SOCIAL SCIENCE shall cease, terminate and come to an end on the 2nd day of January, 1957." One of the trustees was designated trustee in liquidation and authorized to "sell and dispose of all the property, effects, contracts and rights", to collect and pay the debts, and "to settle all the affairs" of the school. This trustee prepared a list of the furniture and equipment, which was quite extensive, consisting principally of class-room chairs, tables, and office and restaurant equipment. He advertised in city newspapers and sold the property to various and sundry purchasers. A federal income tax return for the year September 1, 1956, to August 31, 1957, was prepared by an accountant and filed. It showed a sale of fully depreciated equipment and an item of "Moving & Liquidation Expense $3,371.41", and on the attached balance sheets no assets were shown. The return was subjected to an examination by the Intelligence Unit of the Internal Revenue Service and was accepted as filed.

The school had occupied as a tenant an entire building of six or seven stories at the northwest corner of 6th Avenue and 16th Street, owned by a corporation, 575 Sixth Avenue Realty, Inc. This building was sold on December 13, 1956, and the school ceased to occupy it.

All the foregoing was clearly established. The failure of proof of dissolution lies in the uncertainty which encompasses several features of the situation.

In the first place, although of relatively minor importance, the board of trustees of the school "normally" consisted of thirteen members, but only eight trustees signed the dissolution agreement. These eight, as we have pointed out, were said to be all of the trustees at the time. But the absence or non-existence of the other five, "normally" members, was not explained. The constitution and bylaws of the school contained no provisions as to dissolution and simply provided that all members of the association should be trustees.

In the second place, although also of relatively minor importance, there is considerable uncertainty about the relationship between the school and its landlord, 575 Sixth Avenue Realty, Inc. The attorney for the school was the secretary of the realty corporation. One of the trustees of the school (Trachtenberg) was treasurer of the realty company. There were five stockholders in the corporation, of whom Sacher, Trachtenberg, and a Fred. W. Field were three, but the other two were not identified. The rent charged the school by the realty corporation corresponded pretty much with the fixed charges on the building. There were financial transactions other than the rent between the two organizations, the most notable being the payment of $27,150 by the realty corporation to the school just before the dissolution, said to be reimbursement for improvements charged to expense over the years. The realty corporation is still in existence and owns a building in New York. The extent, if any, to which this corporation represented the physical and financial elements of the school is not clear. The corporation played a part in the matter of the library and the matter of the presently-existing School for Marxist Studies, which we shall discuss in a moment. At any rate it seems to us that complete proof of the dissolution of the Jefferson School required some factual explanation of its relationship with the realty corporation and a negation of the obvious possibility that the continued existence of the corporation is indeed a preservation, in the same hands, of the financial and property elements which were parts of the school.

The two most important features of the lack of proof of the dissolution involve (1) a library and (2) a presently-existing school.

In the building occupied by the school was a large and valuable library, some 30,000 titles and 10,000 or 15,000 pamphlets. The school catalog contained the listing: "LIBRARY: More than 30,000 volumes available for use by students and public." The liquidating trustee while on the witness stand was asked, "Mr. Wilkerson, did the school have a library?", and he answered, "Yes." His testimony continued:

"Q Did you sell the books of your library?

"A No.

"Q What did you do with those?

"A They were moved to storage over on 15th Street.

* * * * * *

"Q You moved all those books?

"A That\'s right.

"Q Where are they now, to the best of your knowledge?

"A I don\'t know. Whether they are still where they went, I have no knowledge.

"Q Do you know if there is anyone who could tell us as to the location of those books at the present time?

"A No, I don\'t. My connection with the books — I don\'t remember whose decision it was. I am sure it must have been the board of trustees at some point in dissolving — but I know that my instructions were, as trustee, to deliver the books to a place on East 15th Street, the address of which I don\'t remember exactly. Whether they are still there, I just don\'t know.

"Q You say instructions. From whom did you receive those instructions?

"A I presume — well, honestly, I don\'t remember. I remember that I was to move the books to 15th Street. I think that this must have come from discussions in the board of trustees. I don\'t remember the details on it.

"Q But you never sold those books?

"A No.

"Q So far as you know, those books are still somewhere?

"A So far as I know.

"Q Do you know whether they are being used by anybody now?

"A I don\'t know.

"Q What sort of place did you store them in? Was it a store?

"A No.

"Q What was it?

"A It was a loft.

"Q Did you pile them on shelves or just pile them on the floor there, do you remember?

"A We moved them in. What happened to them after that, I don\'t know. We had a commercial mover take them over there.

"Q Why didn\'t you sell them? Weren\'t they a part of the assets?

"A That is what I was trying to recall. Frankly, I just don\'t remember when or where, but my assumption is that the board must have decided not to dispose of those books but to put them there for possible use. I don\'t know what. There is not very much of a market for that kind of thing anyway, as you may know.

* * * * * *

"Q They couldn\'t be readily obtained, could they, in any regular book store?

"A I would assume that that is true. It was a valuable collection of books.

"Q For use of a school of that type?

"A Yes."

It was established that the books were in fact moved to part of a loft in a building at 34 East 15th...