Mitchell v. Donovan, 3-68-Civ.-256.

• Decision Date: 02 October 1968
• Docket Number: No. 3-68-Civ.-256.,3-68-Civ.-256.
• Parties: Charlene MITCHELL et al., Plaintiffs, v. Joseph L. DONOVAN et al., Defendants.
• Court: U.S. District Court — District of Minnesota

290 F. Supp. 642

Charlene MITCHELL et al., Plaintiffs, v. Joseph L. DONOVAN et al., Defendants.

No. 3-68-Civ.-256.

United States District Court D. Minnesota, Third Division.

October 2, 1968.

Lynn S. Castner, Minneapolis, Minn., for plaintiffs.

Douglas M. Head, Atty. Gen. of Minnesota, Richard H. Kyle, Sol. Gen. of Minnesota, David J. Byron, Sp. Asst. Atty. Gen. of Minnesota, St. Paul, Minn., for defendants.

Patrick J. Foley, U. S. Atty. for Dist. of Minnesota, Minneapolis, Minn., as amicus curiae.

Before BLACKMUN, Circuit Judge, DEVITT, Chief District Judge, and NEVILLE, District Judge.

MEMORANDUM AND ORDER

DEVITT, Chief District Judge.

This expression is occasioned by the complaint of the Communist Party candidates for President and Vice-President of the United States and others allied with them in interest¹ against Joseph L. Donovan who, as the Secretary of State of Minnesota, is the public official charged with the administration of the election machinery of the State, and Douglas M. Head, Attorney General of Minnesota, growing out of the refusal of Secretary of State Donovan to accept for filing the nominating petition for the presidential and vice-presidential candidates of the Communist Party.

The plaintiffs request temporary and permanent relief ordering Secretary of State Donovan to accept the tendered nominating petition (which allegedly contains the names of 2,394 qualified electors of the State of Minnesota), and to place the names of the Communist Party condidates on the 1968 general election ballot. Further relief is requested in the form of a declaration of the inapplicability, or in the alternative the constitutional invalidity, of the Communist Control Act of 1954, 50 U.S.C.A. §§ 841 and 842. This law is the apparent authority for the Secretary of State's refusal to accept the plaintiffs' petition.

At a hearing held September 17, 1968, briefs were filed and arguments heard relating to the jurisdiction of the court over the subject matter of the controversy and the necessity and propriety of convening a statutory three-judge court. While answers to the questions of jurisdiction and the necessity of a statutory three-judge court are not completely clear, the court, acting through a single judge, has made an initial determination that jurisdiction does exist, 28 U.S.C.A. §§ 1331, 1343, and that a statutory three-judge court should be convened to further consider the issues involved. 28 U.S.C.A. §§ 2282, 2284. Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968).

Circuit Judge Harry A. Blackmun of the Court of Appeals for the Eighth Circuit, Chief District Judge Edward J. Devitt, and District Judge Philip Neville, both of the District of Minnesota, the judges designated under authority of 28 U.S.C.A. §§ 2282 and 2284, heard oral arguments on the issues on September 30, 1968, following notice given on September 24, 1968 to counsel for all parties and to the United States Attorney for the District of Minnesota. In accordance with the provisions of 28 U.S.C.A. § 2403, the Attorney General of the United States was notified by the court that the constitutionality of the Communist Control Act of 1954, 50 U.S.C.A. §§ 841 and 842, was drawn in question, and was advised that he would be permitted to intervene for the presentation of evidence, if evidence were otherwise admissible in the case, and for arguments on the question of the constitutionality of the law.

Extensive briefs have been filed on the questions of jurisdiction, the necessity that the matter be determined by a statutory three-judge court, the granting of preliminary relief, and the applicability of, and the constitutionality of, the Communist Control Act of 1954.

It is not unlikely that a decision on the merits of this matter would involve a determination of the constitutionality of the Communist Control Act of 1954, 50 U.S.C.A. §§ 841 and 842. Since the passage of that Act there has been scant judicial or legislative consideration of its meaning and scope. In essence, the law contains a finding that the Communist Party and its adjuncts are a menace to the United States and should be outlawed (§ 841), and expresses a determination that the rights, privileges, and immunities normally attendant upon such bodies are terminated. (§ 842).

The interdiction is broad and general in its terms, and jabs at the very core of our traditional constitutional freedoms. It is thus not a matter to be considered lightly. Its breadth and generality render its applicability to situations like the present a question not admitting of hurried solution. The results of a determination of the relevant issues on their merits may well have far-reaching national effect. The constitutionality of the Act is not settled, nor have the issues apparently involved in this case ever received authoritative judicial consideration. The Supreme Court of the United States has interpreted the Act on only one occasion. Communist Party of the U.S.A. v. Catherwood, 367 U.S. 389, 81 S.Ct. 1465, 6 L.Ed.2d 919 (1961). In that case a decision on the constitutional question involved was avoided. But the court did imply a criticism of "the vague terminology" of § 842 of the Act. The court observed that:

"The statute contains no definition, and neither committee reports nor authoritative spokesmen attempt to give any definition, of the clause `rights, privileges, and immunities attendant upon legal bodies created under the jurisdiction of the United States or any political subdivision thereof.'" 367 U.S. at 392, 393, 81 S.Ct. at 1468.

The question of validity of the Act, while not passed upon, was noted to contain "novel constitutional questions." 367 U.S. at 393, 81 S.Ct. 1465. These observations might well be taken as a skeptical, if not jaundiced, view of the constitutional validity of the Act.

An examination of the expressions of the United States Supreme Court in other cases involving the control of allegedly subversive organizations, and cases in other areas involving similar constitutional doubts, may well be looked to as a harbinger of the probable view of the court if called upon in an appropriate case to pass upon the constitutionality of the Communist Control Act of 1954.

Because attempted legislative control of subversive groups and activities often involves curtailment of fundamental constitutional freedoms, the Supreme Court has required that the standards of clarity and specificity be applied with particular stringency to such statutes. At least two provisions of the Subversive Activities Control Act of 1950, sections which on their face are narrower and more specific than the statute here involved, have been stricken down as vague and overbroad. United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967); Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964). See also, Note, "Recent Developments in Communist Control Act Prosecutions," 16 W.Res.L.Rev. 206 (1964).

In the case before us, issues involving rights of suffrage, free speech, and free association are involved. Only the most delicate control in such areas is to be tolerated. Whitehill v. Elkins, 389 U.S. 54, 88 S.Ct. 184, 19 L.Ed.2d 228 (1967); NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Cramp v. Board of Public Instruction of Orange County, Fla., 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961). Legislative exclusions of the sort here being considered may be bills of attainder. United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965).

The complaint, affidavits, briefs, and the oral arguments presented have raised substantial doubts regarding the Act's applicability and constitutional validity. These doubts are of sufficient proportion to warn that hurried arguments and precipitous decision of the issues would be unwise.

A "Memorandum for the United States as Amicus Curiae," has been filed over the signature of Patrick J. Foley, United States Attorney, advising that in his view the Communist Control Act is inapplicable to this case. He urges that the Act is meant to disable the Communist Party as a party only and not its members, and he suggests that the right of plaintiffs Mitchell and Zagarell to appear on the ballot, and the right of the nominees for presidential electors to be credited with the votes cast for Mitchell and Zagarell, depend in no degree on their status as nominees of the national or local Communist Party. He argues that, as a matter of Minnesota law, Mitchell and Zagarell are entitled to stand for office because their names have been submitted in a timely petition signed by the requisite number of qualified voters, and concludes that no "right, privilege or immunity" of the Communist Party as such is involved in this lawsuit. It is therefore his view that the Communist Control Act of 1954 does not prohibit the Secretary of State from accepting the nominating petitions and including the nominees upon the ballot as candidates of the Communist Party.²

The Government also cites the "familiar rule that the decision of constitutional questions should be avoided where fairly possible," Communist Party of the U.S.A. v. Catherwood, supra, and urges that we should "hesitate long" before adopting an interpretation that requires resolution of "difficult constitutional questions." 367 U.S. at 394, 81 S.Ct. 1465.

The brief of the United States admits the seriousness of many of the plaintiffs' constitutional challenges to the law. Claims that the law is a bill of attainder, that it unjustifiably abridges First Amendment rights and the rights to vote and to run for elective office, and that Congress lacks power to establish qualifications for presidential electors are recognized as being substantial and raising difficult constitutional questions.

Because of the grave doubts which exist as to the constitutionality of the Communist Control Act, and in light of the amicus curiae position of the...