Meiklejohn Civil Liberties Institute Archives logo
| HOME | HISTORY | PUBLICATIONS | DOCKETS | FINDING AIDS |

CIVIL LIBERTIES DOCKET
Vol. 1, No. 1
October, 1955
$5.00 per year

Search in this volume

Case Number: 

Enter a specific case number or use * as wildcard, e.g., 303.15, 303.*

Case Title: 

Enter keywords from the title of a case, e.g., carpenters union

Case Description: 

Enter keywords from the description of a case, e.g., segregation school
   
ABOUT THE CIVIL LIBERTIES DOCKET

The DOCKET is published 5 times each year, October to June, by the National Committee on Constitutional Rights and Liberties, Osmond K. Fraenkel, chairman, Ann Fagan Ginger, editor.

The purpose of this DOCKET is to keep lawyers and other interested persons informed of the current status of legal proceedings throughout the country in which constitutional liberties are involved. The inclusion of any case in the DOCKET indicates only that counsel in the case have raised issues of civil rights and liberties and should not be construed as an expression of opinion by the editors on the merits of such issues. In reporting these cases the facts and issues are presented without editorial comment. References will also be given to significant law review articles and other materials discussing specific cases or related issues. With the help of our subscribers and other members of the Bar, we will keep the DOCKET complete, informative and up-to-date.

I. EXERCISE OF FIRST AMENDMENT RIGHTS

10. Freedom of Speech

10.1. New York v. Parrilli, et al. (NYC Mag. Ct.) Def.-pacifists refused to participate in air raid drill and seek shelter; arrested in front of NY City Hall while carrying placards describing drill as psychological buildup for war. Charge: violation of NY State Emergency Defense Act, Sec. 102, a misdemeanor. One Def. committed to Bellevue Psychiatric ward, the others held in $1500 bail each. Defs. challenged jurisdiction of Ct. to try misdemeanor usually required to be tried in Special Sessions Ct.; statute challenged as unlawful delegation of war power by Congress to States and unlawful suspension of Bill of Rights. Motion on jurisdiction overruled. Trial date: Oct. 26.

Conrad J. Lynn, Esq., 141 Broadway, George Campbell, Esq., 987 Park Ave., Morris Ploscowe, Esq., 61 Broadway, Harris Present, Esq., Rockefeller Plaza; Kenneth Greenawalt, Esq., 1 Wall St., all of NYC; Prof. Harrop Freeman, Cornell Univ., Ithaca, NY, for American Friends Service Committee, Philadelphia.

10.21. U.S. v. UAW-CIO. (ED Mich., #35004.) 4-count indictment charging Def.-union with violating fedl. Corrupt Practices Act (18 USC 610) by spending $5,985. for television broadcasts endorsing candidates in Democratic primary and general election in Nov., 1954. Said telecasts "included expressions of political advocacy, and were intended by def. to influence the electorate generally, including" non-UAW members. Issues: 1) are such expenditures prohibited by Sec. 610; 2) if so, does Sec. 610 abridge First Amdt. rights. Pre-trial motions due Sept. 30.

Harold A. Cranefield, UAW General Counsel, 8000 E. Jefferson Ave., Detroit.

10.22. Wisconsin v. Joe Must Go Club of Wis., Inc. (Wis. S. Ct. #25.) Feb. 1955, def.-club convicted on 21 counts of violating Wis. Corrupt Practices Act (Sec. 346.12) in campaign to recall Sen. McCarthy, fined $4200. June, 1955: Wis. S. Ct. remanded with directions to dismiss the information because legislative history showed Act applied to corporations in business for profit, not to corporations like def.

Willard S. Stafford, Esq., Clifford B. Mathys, Esq., both of Madison, Wis.

20. Freedom of Press

20.1. New York v. Hennacy. (N. Y. Ct. of App.) Def., associate editor of "Catholic Worker", convicted of selling his paper without peddler's license; App. Div. upheld conviction. Issue: whether arrest violates his First Amendment rights to free speech and to disseminate literature. Ct. of App. reversed conviction.

Emanuel Redfield, Esq., 60 Wall St., NYC.

- 2 -

20.2. Krebiozen Research Foundation v. Beacon Press, Inc. (Mass. Super. Ct., Suffolk, Eq. #69611.) Pls., interested in production and sale of drug "krebiozen", sought injunction to prevent Def.'s publication of book, "Krebiozen, The Great Cancer Mystery", alleging it would assert drug was worthless and would assail Pls.' motives and practices. Issue: would injunction constitute prior restraint of publication in violation of state and fedl. guarantees of free press? Def.'s demurrer sustained; Sup. Jud. Ct. Justice denied temporary injunction pending appeal.

Frank B. Frederick, Hervey W. King, Victor H. Kazanjian, Esqs., (for Defs.), 50 State, Boston.

20.3. Brattle Films, Inc. v. Comm'r of Public Safety. (Mass. Sup. Jud. Ct.) (1955 Advance Sheets, 809, July 6, 1955.) Bill in equity against State Comm'r of Public Safety and City Manager of Cambridge to obtain binding legal declaration as to Pl.'s right, as movie theatre, to exhibit "Miss Julie" on Sunday. Defs.' demurrer sustained; bill dismissed. On appeal the lower court decision was reversed. Pl. applied to Defs. for written approval; refused. Film has been shown on week days without objection. Issues: does refusal constitute prior restraint of freedom and rights of Pl. in violation of 1st and 14th Amdts. and Article XVI of Mass. Declaration of Rights; is chapter 136, sec. 4, Gen'l Laws, authorizing licensing of public entertainment on Lord's Day, in keeping with character of day and not inconsistent with due observance and requiring Defs.' approval, unconstitutional? Mass. Sup. Jud. Ct. held: Sec. 4 void on its face as prior restraint on freedom of speech and press. "It is unthinkable that there is a power, absent as to secular days to require submission to advance scrutiny by the government of newspapers, sermons or public addresses".

William C. Brewer, Jr., Esq., 50 State St., Boston.

20.4. Times Film Corporation v. Comm'r of Public Safety. (Mass. Sup. Jud. Ct.) (1955 Advance Sheets, 813, July 6, 1955.) Pet'r, film distributor, brought certiorari to quash Resp.'s action in failing to approve 2 films for exhibition on Lord's Day. Lower Ct. reserved and reported case to Mass. Sup. Jud. Ct., which dismissed petition without prejudice since merits of case settled in Brattle Films (20.3); it would not be assumed Resp., a public officer, would not carry out his duty under the law.

Alfred A. Albert, Esq., 68 Devonshire St., Boston; Felix J. Bilgrey, Esq., 144 West 57th St., NYC.

20.5. Fla. ex rel. Huie v. Lewis, Sheriff. (Sup. Ct. Fla. #26,158.) Original writ challenging commitment for contempt of court. In murder case pending in Fla. Circuit Ct., Circuit Judge Adams appointed 2 physicians to examine into Def.'s sanity. Huie approached one of the doctors, as a writer interested in case, said he believed Def. was insane, that Judge Adams was prejudiced against Def. because she knew that Judge, State's attorney and murdered doctor had been engaged in gambling racket. Huie found guilty by same Judge Adams of contempt in that his conduct in attempting to influence alienist was intended to or tended to interfere with administration of justice and bringing court into disrepute. Fla. Sup. Ct., distinguishing Pennekamp v. Fla., 328 U. S. 331, dismissed writ, upholding contempt sentence.

Frank T. Cannon, Arthur J. Gutman and Releford McGriff, Esqs., Jacksonville, Fla.; William J. Butler, 400 Madison Ave., NYC. Amicus brief filed by American Civil Liberties Union, Herbert Monte Levy, Esq., 170 5th Ave., NYC.

20.6. U. S. v. Solow. (SD NY.) Def.-asst. to publisher of "The Nation" indicted for obstruction of justice for allegedly destroying 3-4 letters to and from Intl. Union of Mine, Mill & Smelter Workers re Matusow (see Jencks (240.3), Matusow (545.3)), with knowledge that grand jury inquiring into Matusow's recanting testimony (see Flynn (110.11), Matusow (545.4)) would be interested in this correspondence. Motions for bill of particulars, to inspect grand jury minutes and to subpoena documents argued Oct. 13.

Rogge, Zucker, Fabricant and Gordon, Esqs., 401 Broadway, NYC.

30. Freedom of Religion

30.1. People's Church of San Fernando Valley, Inc. v. County of Los Angeles. (Calif. Sup. Ct.) Pl.-church filed claim for cutomary religious tax exemption, striking out "loyalty declaration" required by statute and recent constitutional amendment (Calif. Const., Art. XX, Sec. 19). Tax Collector sent tax bill; church paid first installment under protest; brought action to recover on ground assessment illegal and invalid as violation of 1st Amdt. rights to freedom of religion and expression. Los Angeles Cty. Super. Ct. Judge McCoy held: statute is discriminatory. On appeal.

Wirin, Rissman & Okrand, Esqs., 257 S. Spring, Los Angeles.

30.2. First Methodist Church of San Leandro v. Horstmann, et al. (Calif. Sup. Ct.) Facts and issues similar to People's Church (30.1). Decision favorable to Pl.-church is being appealed.

William T. Belcher, Esq., Fox-Oakland Bldg., Oakland; Lawrence Speiser, Esq., for A.C.L.U. of N. Calif., 503 Market St., San Francisco.

30.3. First Unitarian Church of Berkeley v. Horstmann, et al. (Calif. Sup. Ct.) Consolidated on appeal with First Methodist case (30.2).

Phillips, Avakian & Johnston, Esqs., Financial Center Bldg., Oakland; Lawrence Speiser, Esq., for A.C.L.U. of N. Calif., 503 Market St., San Francisco.

30.4. American Unitarian Assn., et al. v. County of Santa Clara, et al. Facts and issues similar to People's Church (30.1). Pleadings to be filed.

Landels & Weigel, Esqs., 275 Bush St., San Francisco.

And see cases at 430.

40. Freedom of Assembly

40.1. In the Matter of Application of Ellis v. Dixon, et al. (USSC) (281 App. Div. 987; 306 N. Y. 981; 349 U. S. 458.) Yonkers Committee for Peace made several applications for use of school facilities from Def. members of Yonkers Bd. of Educ. Applications repeatedly denied; no reason given. Defs., under Education Law Sec. 414, has permitted other organizations to use its buildings. Defs. did not file answer to Pl.'s petition in Sup. Ct. of Westchester Cty, so allegations deemed admitted. Issue: whether organization has been deprived of equal protection of laws and right of free speech and assembly guaranteed in 1st Amdt. USSC (5 to 4), by Harlan, dismissed writ of cert. as having been improvidently granted. Court held: pleading which alleged merely that other organizations had been permitted to hold public meetings does not show discrimination, since admittedly school board could restrict types of organizations permitted to use school facilities and there was no allegation that organizations of Pl.'s type had been granted such use.

Emanuel Redfield, Esq., 60 Wall St., NYC.

- 3 -

100. Freedom of Association—Governmental limitations on organizations
110. Federal conspiracy indictments—Smith Act

110.1. Yates, et al. v. U. S. (U.S.S.C.) 14 Defs. convicted after jury trial; bail doubled to $20,000 pending appeal. Issues: constitutionality of Smith Act; scope of First Amdt. rights; change in statute (since decision in Dennis v. U. S., 341 U. S. 494) making general conspiracy provision (18 USC 371) applicable in Smith Act cases, requiring proof of overt acts; Trial Ct. did not follow Dennis case instruction requiring proof of agreement to use language of incitement; ct. ruled that finding of "clear and present danger" in Dennis case was applicable in all future Smith Act cases till reversed by U. S. Sup. Ct.; trial ct. rejected defense offer of record in Schneiderman v. U. S. (320 U. S. 118), (Schneiderman being a def. in Yates et al.), as immaterial. Ct. of App. affirmed March 17, 1955, petition for rehearing denied. 3 separate petitions for cert. filed Aug. 11, 1955 in U.S.S.C.

Augustin Donovan, Esq., Bank of America Bldg., Oakland; Robert W. Kenny, Esq., 250 N. Hope St., Los Angeles, and Benjamin Dreyfus, Esq., 57 Post St., San Francisco; Norman Leonard, Esq., 240 Montgomery St., San Francisco, Ben Margolis and Leo Branton, Esqs., 112-W. 9th, Los Angeles, Alexander H. Schullman, Esq., 417 S. Hill, Los Angeles, A. L. Wirin, Esq., 257 S. Spring, Los Angeles.

110.2. Fujimoto, et al. v. U. S. (CA 9.) 7 Defs. convicted after jury trial. 5 yrs. and $5,000. Out on $15,000 bail. Now on appeal. Briefs already filed.

Richard Gladstein, Esq., 240 Montgomery St., San Francisco; Bouslog, King and Symonds, Esqs., 63 Merchant St., Honolulu, T. H.; A. L. Wirin, Esq., 257 S. Spring, Los Angeles.

And see Bouslog (560.2), Gladstein (560.1).

110.3. Wellman et al. v. U. S. (CA 6.) 6 appellants convicted after jury trial. Sentences Feb. 28, 1954 ranged 4-5 yrs. and $10,000 fines. Argument before Ct. of App. Feb. 17, 1955. Post-argument brief raises issues: Exen if "Marxist" books advocated violent overthrow, sole question was whether defs. themselves so interpreted them, on which no probative evidence was offered: Trial judge charged Communist Political Assn. in 1944-45 did not advocate violent overthrow though it taught from same books used in period covered by indictment, and USSC in Schneiderman (320 U.S. 118) decided these books advocated peaceful change; no proof that defs. knew they were adopting "force and violence" program as testified by Gov't W John Lautner when Comm. Party expressly disavowed such doctrines in 1945; prejudice resulted from permitting "organizing" section of indictment to remain in case because Trial Ct. permitted vast amount of "inflammatory evidence" in as "background" which couldn't have been admitted if "organizing" charge had been stricken. Decision awaited.

Ernest Goodman, Esq., 3220 Cadillac Tower, Detroit 26, Mich.

110.4. Huff, et al. v. U. S. (CA 9, #14320.) 4 defs. convicted W. Dist. Wash. Sentences: 5 yrs. plus 3-yr. contempt sentences for 2 Defs. Fine: $1000-$5000. Appeal pending, reply brief filed April 18. Probably will not be calendered in CA 9 until action by U.S.S.C. in Yates (110.1).

John Caughlan, Esq., 702 Lowman Bldg., Seattle 4, Wash.; Irvin Goodman, Esq., Portland Trust Bldg., Portland, Ore.

110.5. U. S. v. Mesarosh, et al. (CA 3, #11,169-11,173.) 5 Defs. convicted after trial by jury; 5 yr. sentences; CA 3 affirmed 6/13/55 (5-2). Majority followed Dennis and Flynn (110.11). Defs.' challenge to jury overruled (see companion case, Dow (522.1)). Dissent by Hastie, J. (joined by Maris, J.): Defs. indicted and convicted "for conspiracy to engage in dangerous talk and indoctrination, and nothing more than that." Such conduct, in the absence of showing that it is "calculated to incite men to violence as soon as circumstances will permit" . . . "is the very sort of thing the 1st Amendment removes from Congressional power to proscribe."

Frank J. Donner, Esq., 342 Madison Ave., NYC, Ralph E. Powe, Esq., 700 Macon St., Brooklyn; Thomas D. McBride, Esq., 1529 Walnut St., Philadelphia.

110.6. Sentner, et al. v. U. S. (CA 8.) 5 Defs. convicted after jury trial May, 1954. Sentences: one 3 yrs., others 5 yrs., no fines. CA 8 denied petitions to appeal in forma pauperis; govt. argued since Defs. able to have bail posted of $100,000 ($20,000 ea.), not paupers, despite affidavits to contrary. Pet. for cert. (in forma pauperis) in U.S.S.C. granted; CA reversed. Defs. allowed to appeal in forma pauperis. (348 U. S. 935.) Briefs being prepared, argument in fall. Issues: 1) Constitutional issues in all Smith Act cases; 2) deprivation of right to counsel because of presence of gov't informer at consultation between Def. and her atty. during trial; 3) right to production reports of gov't informers; 4) right to subpoena evidence for defense.

Sydney L. Berger, Esq., 7 Koenig Bldg., Evansville 8, Ind.; R. L. Witherspoon, Esq., 1518 N. Sarah St., St. Louis, Mo.; Mary Kaufman, Esq., 201 W. 85th, NYC.

110.7. U. S. v. Kuzma, et al. (ED Pa., #17418.) 9 defs. convicted after jury trial 8/13/54 before Judge Ganey. Motion for bail pending disposition of motion for new trial granted by CA 3. Motion for new trial denied 6/15/55. 4 Defs. sentenced to 3 yrs., 5 to 2 yrs., 6/20/55. To be appealed.

Thomas D. McBride, Esq., 2015 Land Title Bldg. and Joseph S. Lord, III, Esq., 121 South Broad St., Chief Counsel; David Cohen, Esq., 612 Market St., Nat'l Bank Bldg.; Joseph N. DuBarry, IV., Esq., 1421 Chestnut St.; Benjamin H. Read, Esq., 1617 Land Title Bldg.; Robert W. Sayre, Esq., 2301 Packard Bldg.; William J. Woolston, Esq., 1529 Walnut St.; John R. Carroll, Esq., 631 Land Title Bldg.; Charles C. Hileman, 3rd, Esq., 1719 Packard Bldg.; Henry W. Sawyer, III, Esq., 117 South 17th St.; Edmund B. Spaeth, Jr., Esq., 1000 Provident Trust Bldg.; all of Phila., Pa.

- 4 -

110.8. U. S. v. Bary, et al. (DC—Colo.) 7 indicted; application for reduction of bail referred to entire Sup. Ct. by Clark, J.; denied Jan. 10, 1955 (75 S. Ct. 310). Two principal defense motions: (1) grand jury improperly selected (see 523.); (2) first case brought to trial since passage of Communist Control Act of 1954: Defs., in attempting their defense from Smith Act charges, will make themselves liable for prosecution under 1954 Act. Trial began March 21; ended late May, 1955. All Defs. convicted. Motion for mistrial denied. Sentencing June 15. On appeal to CA 5. William Alan Bryans, III, Esq., 1044 G. & E. Bldg.; Robert H. Harry, Esq., 810 1st Nat'l Bk. Bldg.; John L. Ferguson, Esq., 222 Equitable Bldg.; William V. Hodges, Esq., 947 Equitable Bldg.; Robert E. More, Esq., 1210 1st Nat'l Bk. Bldg.; William B. Naugle, Esq., 802 Midland Savings Bldg.; Forrest C. O'Dell, Esq., 421 Symes Bldg.; Luis D. Rovira, Esq., 1300 Telephone Bldg.; John Shafroth, Esq., 730 Equitable Bldg.; Arthur K. Underwood, Jr., Esq., 320 Equitable Bldg.; Jay W. Tracey, Jr., Esq., 520 Equitable Bldg.; all of Denver, Colo., and Mary Kaufman, Esq., 201 W. 85th St., NYC.
110.9. U. S. v. Brandt, et al. (ND ED Ohio, #21706.) 11 defs. indicted Oct., 1953. Jury challenge and pre-trial motions overruled by Trial Judge McNamee, who granted extension to give Def. Hashmall (580.1) time to prepare defense, and appointed 7 defense counsel. Trial date: Oct. 29, 1955.

Martin A. McCormack, Engineers Bldg., George Farr, Jr., 1857 Union Commerce Bldg., Fred Mandel, Standard Bldg., Wm. J. McDermott, Williamson Bldg., Warren Briggs, Park Bldg., Ralph Rudd, Natl. City Bank Bldg., Wm. K. Gardner, Union Commerce Bldg., Esqs., all of Cleveland; Yetta Land, Esq., Phoenix, Ariz.; Hymen Schlesinger, Esq., 808 Renshaw Bldg., Pittsburgh; Reuben Terris, Esq., 150 Nassau, NYC.

110.10. U. S. v. Silverman, et al. (DC Conn.) The original indictment returned against 7 defs. June, 1954; dismissed Feb., 1955 because grand jury had been selected improperly. New indictment returned against same 7 plus Martha Stone, March, 1955. Defense motions on new indictments filed April 12, 1955. May 31, 1955: Argument on motions to dismiss indictments and to stay proceedings because of passage of Communist Control Act of 1954; motion denied. Trial date: Oct. 14.

Marvin D. Karp, Esq., 111 Pearl St., Hartford; Catherine G. Roraback, Esq., 185 Church St., New Haven, and Samuel Gruber, Esq., 1 Bank St., Stamford, Conn.; Frank Donner, Esq., 342 Madison Ave., NYC.

110.11. Flynn, et al. v. U. S. (SD NY #252) (103 F. Supp. 925, 106 F. Supp. 966, 190 F. 2d 672, 216 F. 2d 354, c.d. 75 S. Ct. 295, see 285 and 436.) April 26, 1955: Federal Judge Dimock granted defense motion for new trials for defs. Trachtenberg and Charney (convicted with 11 others in 1952), because Gov't witness Harvey Matusow had given perjured testimony against them (see 545.2). May 27, 1955: Judge Dimock denied def. motions to acquit these 2 defs. (see 110.12) and denied motion for rehearing of motion for new trial for 11 other defs.

On motions: Harry Sacher, Esq., 342 Madison Ave., NYC.

110.12. U. S. v. Stein, Charney, Trachtenberg, et al. (SD NY.) Retrial of 2 defs. in Flynn (110.11) and 2 others for conspiracy under Smith Act. Application for reduction of $50,000 bail for Def. Stein denied. Case awaiting trial date.

Reuben Terris, Esq., 150 Nassau, Newman Levy, Esq., 55 Liberty, Mary Kaufman, Esq., 201 W. 85th, all of NYC; Vincent Hallinan, Esq., 345 Franklin, San Francisco.

110.13. U. S. v. Santos Rivera et al. (U.S.D.C., Puerto Rico.) 11 Defs. arrested 10/20/54 in P.R., Mexico, and U.S. Bail $10,000-20,000; two Defs. still imprisoned ($12,000, $20,000); others held up to 10 months. Denial of motions to reduce bail on appeal. (CA-1.) Among motions now filed, not yet argued: (1) to quash because rule that Grand Jurors read, write English bars majority of population esp. workers, poorer sections; (2) to dismiss because Commonwealth status of P.R. affects applicability of Smith Act and jurisdiction of Court; (3) to change requirement that all trial proceedings be in English when several Defs. don't understand that language.

Ramon H. Vargas, Esq., Box 1522, San Juan, Puerto Rico; Prof. Santos Amadeo, Law School, Univ. of San Juan, Rio Piedras, P.R.; Perez Marchand, Marcos Ramirez, Arturo Ortiz Toro, Carlos J. Faure, Tomas I. Nido, Manuel Cruz Horte, and Jose Manuel, Ramos, Barroso, Esqs., all of San Juan, Puerto Rico.

110.20. People of Puerto Rico v. Reynolds, et al. (Puerto Rico Sup. Ct., #15456) (Puerto Rican statute copied after U.S. Smith Act.) 4 defs. arrested after outbreak by Nationalist Party against U.S. gov't Oct. 30, 1950. Jury acquitted on one count, convicted of advocating overthrow of gov't by force and violence for having taken oath at Nationalist Party meeting pledging support to independence movement; sentence: 6 yrs. Puerto Rico Sup. Ct. reversed Nov. 17, 1954 on ground taking oath was part of freedom of expression and was not advocating violence to overthrow the gov't.

Conrad J. Lynn, Esq., 141 Broadway, NYC; A.C.L.U. filed amicus brief in P. R. Sup. Ct.

120. Federal seditious conspiracy indictments—18 USC 2384

120.1. U. S. v. Lebron, et al. (U.S.S.C.) Action against 17 persons charged, by reason of membership in Nationalist party of Puerto Rico, with having conspired to overthrow gov't by force and to resist authority of US by force between Sept., 1950 and May, 1954. Basis for charge: disturbance created in Puerto Rico October 29-30, 1950 during which many persons were killed; shooting at Blair House, Washington Nov. 1, 1950; shooting in Congress Mar. 1, 1954. Prior to trial 4 defs. pleaded guilty and testified against co-defs. Gov't relied on testimony of informer witnesses from Puerto Rico and FBI agent in Nat. Party. FBI informer also present at conference with defense counsel during preparation of case. 13 defs. convicted after trial before Walsh, J., Oct. 12, 1954. Sentences: 6 yrs. 4 who pleaded guilty received suspended sentences. May 10, 1955: CA 2 unanimously affirmed. Petition for cert. to USSC granted.

Abraham Unger, Esq., 11 Park Place, Conrad J. Lynn, Esq., 141 Broadway, both of NYC; Abraham M. Dubno, Esq., 16 Court St., Brooklyn.

- 5 -

120.2. U. S. v. Valle, et al. (CA 2, #C145-293.) 9 Defs. convicted after jury trial; sentences: 1 of 6 yrs., 3 of 4 yrs., 5 of 18 mths. Defs. given leave to file appeal in CA 2 in forma pauperis; appeal pending.

Conrad J. Lynn, Esq., 141 Broadway, and Mark Lane, Esqs., 1677 Madison Ave., both of NYC.

130. State anti-sedition indictments (post World War I statutes)

130.1. Pennsylvania v. Nelson. (172 Pa. Super. 125, 92 A. 2d 431; 377 Pa. 58, 104 A. 2d 133; U. S. S. C. #236, Oct. Term, 1954.) Indictment of Communist Party official for violation of Pa. sedition Law; 20 yr. sentence; conviction reversed by Pa. Sup. Ct. on ground that Smith Act supersedes state sedition statute. 30 state attorneys general have filed petitions amici curiae. Argument in Sup. Ct. mid-October, 1955.

Victor Rabinowitz, Esq., 25 Broad St., NYC.

130.2. Pennsylvania v. Dolson. Facts and issues similar to Nelson (130.1). Awaiting decision in Nelson, bail reduced from $20,000 to $10,000.

Reuben Terris, Esq., 150 Nassau St., NYC.

130.3. Kentucky v. Braden, et al. Def. found guilty of sedition under Ky. statute, sentence: 15 years, $5,000. Def. released from prison summer, 1955 on $40,000 bail pending appeal. Issues: constitutionality of statute, sufficiency of proof, etc. Appeal in forma pauperis to Ky. Ct. of App. to be argued in Fall, 1955. There are 12 other cases awaiting trial in Fall, 1955, of which 5 are sedition cases, 5 are conspiracy cases, 1 a contempt case, and one indictment for bombing the home of a Negro home-buyer.

Louis Lusky, Esq., Hoffman Bldg., and Robert Zollinger, Esq., Realty Bldg., Louisville, Ky.

130.4. Massachusetts v. Struik, et al. (Middlesex Sup. Ct., Crim. #40726, 40727, 40734, 40735.) 4 Defs. indicated for conspiracy to advocate overthrow under 1919 anti-sedition act, Sept. 1951. (See Gilbert extradition case, 415 Ill. 349, 114 N. E. 2d 358.) Gilbert motion to quash based on supercession of state statute by Smith Act argued before Mass. Supreme Judicial Ct.; decision awaited.

Hubert Thompson, Esq., 31 State St.; Howard Whiteside, Esq., 30 State St.; Stuart Rand, Esq., 30 State St.; Walter Kernan, Esq., 30 State St.; Oliver S. Allen, Esq., 6 Beacon St.; Lawrence Shubow, Esq., 10 Tremont St., all of Boston.

130.5. Massachusetts v. Hood, et al. (Suffolk Cty. Sup. Ct.) Conspiracy indictment similar to Struik, et al. (130.4). Decision on pre-trial motions pending.

Gabriel Kantrovitz, Esq., 294 Washington St.; B. Loring Young, Esq., 236 Marlborough St.; Frank Lichtenstein, Esq., 18 Tremont St.; Robert R. Clarke, Esq., 31 Milk St., all of Boston; Raymond T. King, Esq., 1386 Main St., Springfield, Mass.

140. Federal registration provisions—Internal Security Act of 1950

140.1. Communist Party of U. S. v. Subversive Activities Control Board. (U.S.S.C. #48.) Review of SACB order, based on hearings before it, requiring Pl.-Party to register as "Communist-action" organization under 50 U.S.C. 786. Issue: constitutionality of statute's registration provisions. CA for Dist. of Col. affirmed; U.S.S.C. granted cert.; briefs filed Sept., 1955.

John J. Abt, Esq., 11 Park Place, NYC.; Joseph Forer, Esq., 711 14th St., NW, Washington, D. C.; (the late Vito Marcantonio, Esq.).

Amicus briefs filed: by National Lawyers Guild, 40 Exchange Pl., NYC by Osmond K. Fraenkel, Thomas I. Emerson, David L. Weissman, Murray A. Gordon, Esqs.; by Frank Aydelotte and 359 Citizens, by Royal France, Esq., 104 E. 40th, NYC and Laurent B. Frantz, Esq., 3044 Wheeler St., Berkeley, Calif.; by American Civil Liberties Union, 170 Fifth Ave., NYC, by Nanette Dembitz and Edward J. Ennis, Esqs.

140.2. Brownell v. American Slav Congress. (SACB #112-53.) Motion to dismiss filed on behalf of former officers on grounds, inter alia, that org. is no longer in existence. Hearing Officer heard evidence and recommended dismissal of petition because service on last president insufficient to confer jurisdiction over org. as an existing entity. April 17, 1955; SACB dismissed Govt. petition against org. on this ground.

Catherine G. Roraback, Esq., 185 Church St., New Haven, Conn. for John Marsalka, last natl. pres.

140.3. Brownell v. Joint Anti-Fascist Refugee Committee. (SACB.) June 1, 1955; Gov't moved to dismiss its case against Committee because organization has dissolved. (This is the first time Gov't has made such motion.) Def. concurred. SACB dismissed case.

Joseph Forer, Esq., 711 14th St., NW, Washington, D. C.

140.4. Brownell v. Labor Youth League. (SACB #102-53.) Hearings before SACB member Cain; July 30, 1954 he found Def. subject to McCarran Act. sec. 7 (d) (1), (2), (3) requiring registration, because it is an org. "substantially dominated ... by and primarily operated for purpose of giving aid ... to Comm. Party". Evidence included examples showing parallel positions taken on issues by Def. and Comm. Party and testimony of former members. Feb. 15, 1955: SACB issued finding that no prejudicial error was committed during hearing, ordered Def. to register as communist front org. On appeal.

Gruber and Turkel, Esqs., 1 Bank St., Stamford, Conn.

140.5. Brownell v. Jefferson School. (CA DC.) Issues and facts similar to 140.1. In addition, librarians, teachers, ministers, writers filed statement supporting right of free speech as necessarily including right to conduct schools "in which to teach and learn the truth as they see it" and opposing suppression of teaching of Marxism in Def. School. SACB Chairman Herbert recommended School be required to register Dec. 29, 1954; July 1, 1955: full Board approved recommendation. Def.'s appeal pending in CA for Dist. of Col.; Def.'s brief due in Nov.

Harry Sacher, Esq., 342 Madison Ave., NYC.

140.6. Brownell v. Civil Rights Congress. (SACB #106-53.) Hearing concluded with FBI agent admitting on cross-examination that he made no effort to verify information furnished by Brown (former C.R.C. official who testified he was FBI informer simultaneously) and that he had no way of knowing if it was true or false. Motion filed to dismiss petition on ground, inter alia, of illegal procurement in that petition was founded solely upon information furnished by paid informer witnesses, following Pet.'s prior procurement of their services to work in CRC and its cooperating organizations for sole purpose of furnishing such information thereon. Final argument July 5, 1955. Awaiting decision on motion and recommended decision of hearing examiner.

Rhoda Laks, Esq., 615 Columbus Ave., NYC; Ralph E. Powe, Esq., 700 Macon St., Brooklyn, NY.

- 6 -

140.7. Brownell v. Natl. Council of American-Soviet Friendship. (SACB #104-53.) Hearing held on Atty. Gen.'s petition to require Def. to register as "Communist-front" organization. Matusow (see 545.2, 545.3) used as Govt. witness. June 23, 1955: Trial Examiner decided against Def.; argument had before full S.A.C. Board on Def.'s exceptions.

Forer and Rein, Esqs., 711 14th St. NW, Washington, D. C.

140.8. Brownell v. California Labor School in San Francisco. (SACB.) Charge: communist domination of School. Def. answer denies allegations, and alleges that the Act and the SACB are being used to interfere with free press and education. Def. also filed motion for hearing in San Francisco, not Washington, because of exorbitant expense for defense to transport witnesses.

Gladstein, Andersen and Leonard, Esqs., 240 Montgomery St., San Francisco.

140.9. Brownell v. Californians for the Bill of Rights. (SACB.) In reply to proposed designation, Def. requests that proceedings be dismissed, or stayed pending final judicial determination in Guild (160.1), or that Def. be furnished with detailed, specific statements of all acts of wrongdoing alleged to have been committed or publications wrongfully issued, and of all acts and policies of Communist Party which Defs. allegedly implemented and supported, or that hearing be in San Francisco, not Wash., D. C. Pending. Charles R. Garry, Esq., 470 Central Tower, San Francisco.
140.10. Brownell v. Washington Pension Union. (SCAB #114-55.) Hearings scheduled to open in Seattle Sept. 26, 1955 before Bd. Member Cain. Issues: constitutionality of Subversive Activities Control Act of 1950, particularly sec. 7 (b), (c), (d) and 13.

Jay G. Sykes, Esq., 1708 Smith Tower, Seattle, Wash.

140.11. Brownell v. Am. Comm. for Protection of Foreign Born. (SACB.) Hearings before Trial Examiner Morrissey begun in June, continuing after recess. First 6 Gov't witnesses testfied at length about alleged Communist Party meetings and activities, mentioning Def.-Committee less than a dozen times. 3 employed by Justice Dept. or FBI; 1 seeking parole from Smith Act conviction.

Joseph Forer, Esq., 711-14th St. NW, Washington, D.C.

150. Federal proceedings under Communist Control Act of 1954

150.1. Brownell v. Intl. Union of Mine, Mill & Smelter Workers. (SACB.) First petition filed (July 1955) under Communist Control Act of 1954 to have a union declared a "Communist-infiltrated" organization. Petition charges group in leadership has used Union for "Communist-inspired purposes". Preliminary motions made to disqualify members of Board, for bill of particulars and other relief. To be argued Oct. 24.

Nathan Witt, Esq., 9 E. 40th, NYC; Joseph Forer, Esq., 711 14th St., Washington, D. C.

150.2. United Electrical, Radio and Machine Workers of America v. Brownell. (DC DC.) Pl.-union seeks to enjoin Subversive Activities Control Board from proceeding against it under Communist Control Act of 1954 asserting that it has standing to sue because legislative history and statutory provisions indicate statute directed against Pl. and other unions similarly situated; and for declaratory judgment. Issues: constitutionality of Act, whether it is bill of attainder, whether Act ever constitutionally enacted since statute as signed by Pres. different from statute as passed by Congress. Gov't moved for summary judgment charging action premature. Argued May 19, 1955; decision reserved.

Donner, Kinoy and Perlin, Esqs., 342 Madison Ave.; David Scribner, Esq., 11 E. 51st, all of NYC.

See 64 Yale Law Journal 5, April 1955, student note pp. 712-765.

160. U. S. Attorney General's "listing" power under Executive Order 10450

160.1. National Lawyers Guild v. Brownell. (CA DC #12,495.) Action for injunction against Att'y Gen'l's proceeding toward determination of whether Guild should be placed on list of subversive organizations pursuant to Exec. Order 10450 on grounds that (1) asserted power to list is unconstitutional under 1st and 5th Amendments; (2) procedures set up by Att'y Gen'l do not conform to Administrative Procedures Act and do not afford "due process"; (3) Att'y Gen'l, by announcing in public speeches in advance of notice and hearing his "determination" to list the Guild so prejudged the issue as to render himself unfit to provide an impartial hearing.

Concurrent application for preliminary injunction denied by U.S.D.C. on ground that balance of equities favored Att'y Gen'l. On appeal C.A. reversed May 4, 1954 directing stay of proceedings until D.C. on remand considered case on merits.

D.C. granted Def.'s motion for summary judgment Nov., 1954. Aff'd by CA-D.C. July 14, 1955; petition for rehearing en banc denied Oct. 4. Application for certiorari filed in U.S.S.C.

Osmond K. Fraenkel, Esq., 120 Broadway, NYC 5; Joseph Forer, Esq., 711 14th St. NW, Washington, D. C.; Earl B. Dickerson, Esq., 3501 So. Parkway, Chicago, Ill.

160.2. Joint Anti-Fascist Refugee Comm. v. Brownell. (DC DC CA #561-48.) Test of validity of Att'y Gen'l's power to list organizations as subversive. Org. has dissolved; case ended.

Forer and Rein, Esqs., 711 14th St. NW, Washington, D. C.

160.3. Natl. Council of American-Soviet Friendship v. Brownell. (DC DC CA #2663-48.) Issues same as in JAFRC v. Brownell (160.2). Gov't's motion to dismiss action for failure to exhaust administrative remedy pending in District Ct.

Forer and Rein, Esqs., 711 14th St. NW, Washington, D. C.

160.4. Assn. of Lithuanian Workers v. Brownell. (DC DC #406-54.) Issues similar to Guild (160.1). Def. motion for summary judgment granted by District Ct. on argument of failure to exhaust administrative remedy. To be appealed to CA DC.

Nathan Witt, Esq., 9 E. 40th St., NYC and Joseph Forer, Esq., 711 14th St. NW, Washington, D. C.

- 7 -

160.5. Natl. Council of the Arts, Sciences and Professions, Inc. v. Brownell. (DC DC.) Issues similar to Guild (160.1). Action commenced by Robert Morss Lovett, Hon. Chairman.

Stanley Faulkner, Esq., 9 E. 40th St., NYC; Joseph Forer, Esq., 711 14th St. NW, Washington, D. C.

160.6. Brownell v. Independent Socialist League. (Before Hearing Officer Morrissey, borrowed by Att'y Gen'l from SACB.) First hearing under procedure permitting organization to contest inclusion on Atty. Gen'l's list. Hearing opened and went into recess on 1st day to await decision by Att'y Gen'l on affidavit of bias and prejudice filed against hearing officer stemming from rulings he made denying requests for clarification of issues. Hearing proceeded on theory that Att'y Gen'l's case would be put in first.

Joseph L. Rauh, Esq., 1631 K St., NW, Washington, D. C.

170. State officials "listing" powers

170.1. Reply of World Fellowship, Inc. and Dr. Uphaus to Report by Wyman, N. H. Atty. Genl. Analysis of factual inaccuracies and violations of constitutional rights involved in investigation of subversives by Wyman and in his report to N. H. General Court (legislature). Dr. Uphaus appeared twice before Atty. Genl. and answered all questions re his beliefs and associations, but refused to furnish names of others on basis of First Amendment. Then served in Conn. with order to appear in N. H. Ct.; Uphaus objected to improper service, said he'd return to N. H. later where he could be properly served, entered special appearance. Trial Ct. imposed $500 fine for contempt for refusal to appear. Sept. 1955: N. Hamp. S. Ct. reversed; held lower ct. had no jurisdiction over Uphaus, because ct. proceeding a separate appearance requiring separate service.

Interesting brief on religious and constitutional grounds for Uphaus' position.

Royal W. France, Esq., 104 E. 40th St., NYC; Hugh H. Bownes, Esq., Laconia, N. H.

170.2. Kaplan, et al. v. Bowker, et al. (members of Mass. General Court). (Supreme Judicial Ct. #54,734.) Petition for writ of mandamus to restrain Def.-members of Special Commission to Study and Investigate Communism and Subversive Activities and Related Matters (of Mass. Genl. Ct.) from reporting names of persons "available to the Commission . . . whom, the Commission, . . . has received creditable evidence that such individual was or is a member of the Communist Party or Communist or subversive", as directed by General Ct. Resolve of 1954. Issues: would such listing of names be a legislative declaration of guilt in violation of Art. XXV, Mass. Decl. of Rights; would it be an exercise solely of executive or judicial power, rather than legislative; would it deprive named persons of liberty, immunities and privileges without due process of law. April 20, 1955: petition dismissed by single Justice of Supreme Judicial Court. May 2, 1955: Pl. offered 2 motions before full bench: 1) to transfer case to May list; 2) for temporary restraining order. Both motions denied; case sent over to October term.

Jacob J. Kaplan, 75 Federal St.; Willard B. Luther, 10 State St.; Richard Wait, 30 State St.; Alexander Whiteside, 30 State St.; B. Loring Young, 236 Marlborough St., Esqs., all of Boston.

170.3. Tormey v. Bowker, et al. (Mass. Sup. Jud. Ct., Suffolk Co., Eq. #68546.) Defs. constitute Special Commission established to Study and Investigate Communism and Subversive Activities and Related Matters in Mass., created by Legislature's resolutions in 1953, 1954, 1955, and other state officials. Comm., as required by Resolutions, filed interim report listing names and brief biographies of all persons found by them to be members of Communist Party. Pl.-U.E. union organizer was not listed, but referred to as associate of several listed persons. Pl. had been subpoenaed to private hearing and held under continuing subpoena to be recalled. Action for injunction to restrain distribution of report and attendance of Pl. as witness and to declare Resolutions unconstitutional. Issues: (1) is finding of Communist Party membership a legislative declaration of guilt of felony (since such membership is crime under Mass. Law, see Hood (210.5)), which declaration violates Mass. Const., Art. XXV; (2) is such finding an exercise of judicial power in violation of Mass. Const., Art. XXX, and (3) invalid since publishing names has no legislative purpose, and (4) purpose of hearings and lists is to promulgate official blacklist; (5) does this constitute prior restraint on free speech and assembly in violation of Mass. Const., Art. XVI and 14th Amendment; (6) is this denial of due process, interfering with Pl.'s work and right to employment and to represent workers in industry. Motion to dismiss complaint as to Legislative body and legislators granted on ground they are immune from process. Def. State Treasurer has not yet answered.

Allan R. Rosenberg, Esq., 10 Tremont, Boston.

170.4. Luscomb v. Bowker, et al. (Mass. Sup. Jud. Ct., Suffolk Co.) Facts and issues similar to Tormey (170.3). Motion to dismiss granted on same grounds as in Tormey. Action discontinued against State Treas. since list has already been published; appeal pending.

Allen and Allen, Esqs., 6 Beacon St.; Larry Shubow, Esq., 10 Tremont, Boston.

180. Other state actions against organizations

180.1. Green v. Javits, et al. (SD NY.) Action against NY Atty. Genl. to enjoin enforcement against Pl. of NY State Social Welfare Law, Art. 10 (requiring annual registration and reporting by all charitable organizations, authorizing Atty. Genl. to obtain order for examination of organization and witnesses before trial as basis for prosecution for failure to comply). Such order obtained for examination of Pl. as sec'y, Am. Comm. for Protection of Foreign Born. Issues: application of law to organization which is political, not charitable; does law interfere with its federally-protected rights of free speech, press and petition. Pl. moved for temporary injunction; Def. moved to dismiss on ground Pl. has adequate remedy in state courts and no substantial constitutional question involved. Argued: first week in Oct.

Blanch Freedman and Gloria Agrin, Esqs., 220 Broadway, NYC.

180.2. Pennsylvania ex rel. Truscott v. Yiddisher Kultur Farband (Jewish Cultural Society). (Pa. Sup. Ct., WD, #79.) Atty. Sherman sought to intervene specially to revoke Def.'s corporate charter for misrepresenting its purpose which he claimed was "subversive". Judge granted petition; denied on appeal. Pa. Atty. Genl. filed quo warranto petition on same ground, retained Atty. Sherman as asst. counsel. After trial, ct. entered order revoking charter, appointing liquidating trustee, informed trustee that Sherman would act as his counsel. June 27, 1955: Pa. Sup. Ct. vacated order, holding: (1) Atty. Sherman not an "interested party"; had no authority to exceed Atty. Genl.'s orders and conduct "subversive activities" investigation of Def.'s members at trial, which objective is "entirely foreign to quo warranto proceedings"; (2) ct. "palpably abused its discretion" in order which "presumed to determine" extraneous matter; (3) "unwarranted imposition on . . . corporate assets of liability for the trustee's compensation and counsel fees" equalled "expropriation of private property by judicial fiat "on assumption that some members of Def. corp. are "Communists" or "sympathizers".

Hymen Schlesinger, Renshaw Bldg., Pittsburgh, Pa.

- 8 -

200. Freedom of Association—Governmental limitations on individuals
201. Federal membership indictments—Smith Act

201.1. U. S. v. Stone. (DC Conn.) Indictment dismissed March, 1955 because grand jury improperly selected. Defendant reindicted for "conspiracy to advocate" under Smith Act.

Catherine G. Roraback, Esq., 185 Church St., New Haven.

201.2. U. S. v. Lightfoot. (CA 7.) Indicted May 14, 1954 for violating membership section of Smith Act. Verdict of guilty after jury trial Jan. 26, 1955. Sentence: 5 yrs., $5000 fine. Defendant admits membership in Communist Party, argues that statute is unconstitutional. Briefs filed Sept. 25 in CA 7.

John J. Abt, Esq., 11 Park Pl., NYC; George W. Crockett, Jr., Esq., 3220 Cadillac Tower, Detroit.

Amicus brief: National Lawyers Guild, 40 Exchange Pl., NYC, by Malcolm P. Sharp, Osmond K. Fraenkel, Sam Rosenwein and John McTernan, Esqs.

201.3. U. S. v. Scales. (CA 4.) Def. convicted for membership Communist Party; sentenced April 22, 1955; 6 yrs. Bail pending appeal to 4th Circuit denied by trial court and Judge Dobie of 4th Circuit. Bail granted by Chief Justice Warren. Oct. 4: argument in CA 4.

David Rein, Esq., 711 14th St., N.W., Washington, D.C.

201.4. U. S. v. Blumberg. (ED Pa.) Motion to dismiss indictment on grounds that Smith Act membership provision is unconstitutional and inapplicable here; awaiting argument.

Frank Donner, Esq., 342 Madison Ave., NYC.

201.5. U. S. v. Noto. (NY Roch. Dist.) Arrested Aug. 31, 1955 on secret indictment returned Nov., 1954. Fed'l Judge Burke set $30,000 cash or $60,000 property bail.

Counsel not yet chosen.

201.6. U. S. v. Weiss. (ND Ill. ED.) Arrested in New York Sept. 19, 1955 on sealed indictment returned May 14, 1954. U.S. Comm'r set $50,000 bail, awaiting transfer to Ill.

Attorney on bail question: Milton H. Friedman, Esq., 342 Madison Ave., NYC.

210. State anti-communist membership indictments

210.1. Ala. v. Knox. (Jefferson Cty., 10th Jud. Cir. of Ala.) Negro janitor indicted: (1) for being a Communist who knowingly contributed to the Communist Party and (2) for failing to register within 5 days after passage of Ala. Communist Registration Act of 1951. Demurrer attacking indefiniteness of indictment, failure to allege membership after passage of Act, and constitutionality of Act—denied. Jury convicted Jan. 12, 1955; 2 yr. sentence. Appeal pending.

Arthur D. Shores, Esq., 1630-4 Ave., Birmingham, Ala.

210.2. Feldman, et al. v. Ervin, Atty.-Genl., et al. (SD Fla., Miami Div. CA #6070-M.) Pls., subpoenaed to testify under Fla. Subversive Activity and Advocacy statute, brought equity action to test its constitutionality. Feb., 1955 held: threats or fears of prosecution not sufficient to create actual controversy; proper to proceed in state, not federal, court.

John M. Coe, Esq., Bell Bldg., Pensacola, Fla., and Donner, Kinoy & Perlin, Esqs., 342 Madison Ave., NYC.

210.3. Albertson v. Millard. (Mich. S. Ct.) Suit for injunction and declaratory judgment to hold Mich., 1952 Trucks Act unconstitutional because it requires registration of "communists and communist front organizations" and denies them use of ballot. Suit filed by Communist Party official immediately after passage of Act. 3-judge Federal District Ct. denied injunction, held Act constitutional (2-1), (106 F. Supp. 635). 345 U.S. 242 (1953) sent case back for definition of terms by state court (Douglas, Black, dissenting). State (Circuit) court upheld constitutionality of Act. Argument had before Mich. Sup. Ct. Decision may await decision in Nelson (130.1).

Ernest Goodman, Esq., 3220 Cadillac Tower, Detroit, Mich.

210.4. Mass. v. Struik. (Middlesex Superior Ct., Crim. #40725.) Indictment of professor-Def. Sept., 1951 under 1919 antisedition act for advocating overthrow by force and violence of Commonwealth of Mass. on or about May 1, 1948. Motion to quash denied in 1952. 1955: new motions filed raising issue of ruling in Nelson case (130.1) and effect of McCarran Act Sec. 4f. Argument not yet set.

Oliver S. Allen, Esq., 6 Beacon St., Boston; Lawrence Shubow, Esq., 10 Tremont St., Boston.

210.5. Mass. v. Hood. (Suffolk Co., #11492; Mass. Sup. Jud. Ct.) 1951 Act provides that "Communist Party is hereby declared to be a subversive organization. A subversive organization is hereby declared to be unlawful"; penalizes membership in such organization, contributions to, renting a hall to, concealing membership lists or funds of such organization. First state action under Act in Spring, 1954, when Otis Hood filed equitable action testing its constitutionality (similar to Albertson case (210.3)). A week later he was indicted for membership in and contributions to Communist Party. Trial ct. heard argument May 20, 1954 on Def.'s motion to quash, then it reported case to Sup. Judicial Ct. for decision on constitutional questions before trial (under new 1954 judiciary act provision). Argument before Sup. Jud. Ct. April 4, 1955, decision reserved.

Gabriel Kantrovitz, Esq., 294 Washington St., Boston, Mass.

- 9 -

220. "Loyalty-security" dismissals of government employees—UN, US, states, cities

220.1. Leff, Duberg and Wilcox v. Luther Evans. (Before Adm. Trib. of ILO.) 3-member Administrative Tribunal of Intl. Labor Organization ordered, on April 26, 1955, UNESCO to reinstate 3 dismissed American-Pls. or pay $43,800. damages and attorneys' fees. Held: "abuse of rights" for Dr. Luther Evans, UNESCO director-gen'l, to refuse new contracts to Pls. because of their refusal to appear before U.S. loyalty board. "Loyalty toward a state is entirely different from the idea of 'integrity' as embodied in the [UNESCO] staff regulations and rules." UNESCO is appealing decision to Int'l Court of Justice at the Hague.

Leonard Boudin, Esq., 25 Broad St., NYC; Jacques Mercier, 36 Rue de Bellechase, Paris, France.

220.2. Peters v. Hobby. (U.S.S.C.) (349 U. S. 331, 1955.) Petition to review discharging of Government employee under loyalty program on ground that loyalty procedures of Fed'l Gov't were invalid in that employees under charges had no opportunity to confront or cross-examine witnesses against them Pet. had been cleared by Employee Loyalty Bd. of Federal Security Agency by which he was employed, but Loyalty Review Bd. reversed finding of Agency Bd. and ordered Pet.'s dismissal. Supreme Court reversed (7-2) June 6th, 1955. Although the point had not been raised by counsel, Court held: Loyalty Review Bd. had no authority to review decision of Agency Bd. which was favorable to employee, and, hence, that constitutional and other issues raised by Pet. need not be decided. Justices Black and Douglas wrote separate concurring opinions, expressing doubts as to constitutionality of Gov't loyalty procedures. Justices Reed and Burton dissented, holding that Loyalty Review Bd. could reverse finding of Agency Bd., but expressing no opinion on constitutional issues.

Arnold, Fortas and Porter, Esqs., 1229 19th St., N.W., Washington, D.C.

Amicus briefs filed by: American Civil Liberties Union, Herbert Monte Levy, Esq., 170 Fifth Ave., and Morris L. Ernst, Esq., 285 Madison Ave., both of NYC; Congress of Industrial Organizations, Arthur J. Goldberg, Esq., 1001 Connecticut Ave., N.W., Washington 6, D.C. et al.; Engineers and Scientists of America, Joseph A. Fanelli, Esq., 1701 K St., N.W., Washington, D.C. et al.

Motion for leave to file as amicus denied: Emergency Civil Liberties Committee, Leonard Boudin, Esq., 25 Broad St., NYC.

See "Procedural Pitfalls in Civil Liberties Cases" by Osmond K. Fraenkel, XV Lawyers Guild Rev. #3 (Fall, 1955).

220.3. Service v. Dulles, et al. (DC DC, CA #4967-52.) Suit by former State Dept. official against Loyalty Review Bd., Civil Service Comm., and Secy. of State for reinstatement in former position and back pay since 1951 dismissal. After decision in Peters (220.2), Pl. introduced affidavit of former Secy. of State that dismissal based solely on Review Bd.'s findings, which had reversed departmental board's decision favorable to Pl. June, 1955, Pl. moved for summary judgment; July 28, 1955: Dist. Ct. granted Defs.' motion for summary judgment.

Reilly, Rhetts, Ruckelshaus, Esqs., 1401 K St., N.W., Washington, D.C.

220.4. Re Taylor. (Int'l Organization Employes Loyalty Bd.) June, 1955 Int'l Org. Emp. Loyalty Bd. ruled "there is reasonable doubt" of loyalty of Taylor, Int'l Monetary Fund official who has gone through repeated loyalty checks. Despite flat denials that he had "furnished information to unauthorized persons," answered all questions and did not claim 5th Amdt. privilege, Bd. found "evasion". Pet. challenges testimony of Elizabeth Bentley, main witness against him, that he was member of spy ring for USSR, found 37 "discrepancies" in her espionage story, and charged that FBI had not checked much of her information which was "susceptible to check." Loyalty Bd. recently granted rehearing at Taylor's request. Byron Scott, Esq., 777 14th St. NW, Washington, D. C.
220.5. Kutcher v. Higley. (CA D.C.) (See Kutcher v. Gray, 91 U.S. App. D.C. 266, 199 F. 2d 783.) Def. is and has been long-time member of Socialist Workers Party; was discharged from non-sensitive job at Veterans Administration under Loyalty Program, is suing for reinstatement. Issues: whether Def. received adequate notice of reasons for proposed discharge when not informed of details of charges nor of reasons why SWP was listed by Attorney General as subversive; and whether nation's security justifies discharge of employee in non-sensitive agency because of unpopular political activities. Brief on appeal to CA for Dist. of Col. due Oct. 17.

Joseph L. Rauh, Jr., and Daniel H. Pollitt, Esqs., 1631 K St. NW, Washington, D.C.

220.6. Cole v. Young. (U.S.S.C.) Pl., former food and drug inspector, U.S. Dept. of Health, Education and Welfare, dismissed for maintaining "close association with individuals reliably reported to be Communists" and supporting group on Atty.-Gen'l's list, sued for reinstatement. Issues: (1) can fed'l gov't's security program be applied to non-sensitive, non-policy-making employees in every gov't agency; (2) since statute authorizes dismissal only when "necessary or advisable" for national security, can Exec. Order be valid which permits retention only when "clearly consistent with" national security. July 28, 1955: CA for Dist. of Col. held (2-1): gov't's personnel security program "rational and reasonable", upheld dismissal. Dissenting Chief Judge Edgerton wrote: program based on "unauthorized and invalid" Exec. Order, and "gives employees less protection than Congress authorized." Petition for cert. filed Oct. 3, 1955.

David I. Shapiro, Esq., 350 5th Ave., and Osmond K. Fraenkel, Esq., 120 Broadway, both of NYC; James H. Heller, Esq., 1026 Woodward Bldg., Washington, D.C.

225. "Loyalty-security" less - than - honorable discharges from Armed Services

225.1. Cpl. Kulich. (U.S. Army-Fort Lewis.) Cpl. Kulich received "certificate of honorable separation" from U.S. Army Jan. 6, 1955 after 2 yrs. service. Later received notice from Army that discharge would be changed to "undesirable" unless he was able to establish that this should not be done. "The Army asserts the father, Alex Kulich, is of questionable loyalty because of reports made against him because of Communist Party membership" and for allegedly receiving money from said Party to visit U.N. in NYC. Hearing scheduled at Fort Lewis May 3, 1955. April 25, Rep. Don Magnuson discussed case (Cong. Rec.—House, pp. 4199-4201); Reps. Miller, Pelly and Mack also expressed concern. Hearing postponed. May 12, Rep. Magnuson introduced resolution calling for investigation of case (Cong. Rec.—House, p. 5258). Issues stated by Magnuson: 1) whether it is violation of constitutional guaranties to draft man into service and then subject him to lifetime handicap of undesirable discharge because of something his father may have said or done or believed before son was drafted. 2). Whether it is necessary to have security system which turns on "guilt by inheritance." June 15: Risk charges dropped. Case closed.

Paul O. Manley, Esq., Aberdeen, Washington.

- 10 -

225.2. Lt. Deitch. (US Army.) Hearing before Loyalty Bd. recommended discharge under conditions other than honorable. Action for injunction brought in SD NY. Pending decision on motion for preliminary injunction, general discharge offered for withdrawal of action. Action discontinued.

Stanley Faulkner, Esq., 9 E. 40th, NYC.

225.3. Lt. Mitchell. (U.S. Air Force, 10th Air Force.) Charges pending for removal from Air Force Reserve. Lt. had volunteered in 1942, completed 61 missions in European War Theatre and honorably discharged with honors as 2nd Lt. in 1945. Present charges: membership in Communist Party since 1950, which he denies. At hearing no accuser was present to testify, nor was name of informant given. Other charges: attendance at Nat'l Negro Labor Council convention, receipt of Daily Worker by mail, signing various leaflets. Pending.

Goodman, Crockett, Eden & Robb, Esqs., 3220 Cadillac Tower, Detroit.

225.20. Harmon v. Stevens. (DC DC.) After appealing less than honorable discharge to Army field bd., Discharge Review Bd. and Bd. for Correction of Military Records without success, Pl.-law student brought suit, explaining his pre-induction activities listed in the charges and insisting he has never been a Communist. Pl.'s motion for summary judgment filed; Def. answer due Oct. 7.

David I. Shapiro, Esq., 350 5th Ave., NYC.

225.21. Name Withheld v. Herren, et al. (SD NY, CA #103-137.) Application to enjoin Def. Army field bd. from proceeding with security risk case against draftee who has already completed his 2 yrs.' active duty, and whose station clearance form gives him "excellent" character and efficiency rating. After return to civilian life, Pl. served with charges: reading Daily Worker before induction, associating with mother and brothers. Issues: 1) whether whole Army "security" program void and never properly authorized; 2) whether "honorable discharge" is valuable personal and property right; 3) 1st Amdt. right to associate with relatives; 4) right to due process; 5) right to judicial trial before punishment—6th Amdt. Argued Sept. 23; taken under advisement.

David I. Shapiro, Esq., Empire State Bldg., NYC.

225.22. Bernstein, et al. v. Lt. Gen. Herren. (SD NY.) 8 soldiers stationed in 1st Army Area brought Declaratory judgment action to prevent Army from granting them any discharge other than honorable. Soldiers face Army proceedings under AR 604-10 (Security Reg.). Derogatory allegations only refer to prior civilian activities and beliefs and relationships by kin or otherwise. Army service ratings "excellent". Issues raised: Regs. and procedure void as without statutory authorization and in conflict with statutory provisions on discharge; denial of honorable discharge constitutional deprivation of a property right which is accomplished without procedural due process in violation of the 5th Amdt.; in so far as the deprivation is by reason of prior civilian political activities, associations, speech and reading matter the Reg. violates the 1st Amdt. and is in conflict with the prohibition against ex post facto laws. Temporary restraining order granted Sept. 20 till Oct. 4, argued Oct. 4.

Stanley Faulkner, Esq., 9 E. 40th St., and Albert L. Collums, Esq., 342 Madison Ave., both of NYC.

And see cases at 450.

230. "Loyalty-security" dismissals v. academic freedom

230.1. Matter of Hughes v. Bd. of Higher Education. (NY Cty. Sup. Ct.) Proceeding under sec. 12a, subd. d of NY Civil Service Law to obtain court trial of charge that Pet. was Communist Party member, a charge sustained by Bd. of Higher Education which dismissed him. Application denied by Judge DiFalco. App. Div., First Dept., 141 N.Y.S. 2d 392, reversed and granted application (3 to 2). It has granted Bd. leave to appeal to Ct. of App. Appeal to be heard in fall. Appeal before Comm'r of Education against requirement that teacher "inform" re others' political activities to be argued.

Osmond K. Fraenkel, Esq., 120 Broadway, NYC.

And see cases at 440, 460.

240. Perjury indictments against trade union officials under Taft-Hartley oath

240.1. Hupman v. U. S. (U.S.S.C. #764) (219 F. 2d 243 (CA 6).) Principal issues: whether sec. 9h, as applied to petitioner, violates 1st and 5th Amdts. and prohibition against bills of attainder; whether Court will re-examine ACA v. Douds (339 US 382) as to constitutionality of sec. 9h. Certiorari denied, June 6, 1955.

Donner, Kinoy and Perlin, Esqs., 342 Madison Ave., David Scribner, Esq., 11 E. 51st St., all of NYC; J. Paul Prear, Esq., 1322 Germantown St., Dayton, Ohio.

240.2. U. S. v. Neff and Valentino. (DC Camden, NJ.) Indictment against Union office secy. and union business agent for conspiracy to file false 9h affidavits; Gov't moved to dismiss June 2, 1955 and Fed'l Judge Forman did dismiss. (Valentino appeared as Gov't witness recently in perjury action against Mrs. Neff for her denial that she had collected Communist Party dues. She was fined $2,000. April 12, 1955.)

Morton Stavis, Esq., 744 Broad St., Newark, N.J.

240.3. Jencks v. U. S. (CA 5, #15157.) Appellant convicted on two counts for violation of 18 USC 1001 re Non-Communist affidavit executed while president of Local 890, Mine, Mill, and Smelter Workers Union; convicted by jury Jan. 21, 1954; 5 yrs. and no fine. Briefs filed in Ct. of App.; argument May 24, 1955. Jan 28, 1955: Def. filed motion for new trial on ground of newly-discovered evidence, supported by affidavit of Harvey M. Matusow, chief prosecution witness against Def. After hearing from March 7 to 12, Ct. denied motion. Appeal argued; briefs to be filed.

Nathan Witt, Esq., 9 E. 40th St., NYC; John McTernan, Esq., 112 W. 9th, Los Angeles.

And see: Matusow (545.3) and Witt (480.2).

- 11 -

240.4. Gold v. U. S. (CA DC, #12,352.) Appellant convicted on two counts ("membership" and "support" of Comm. Party) after jury trial. Verdict April 2, 1954: 1 to 3 yrs. on each count to run concurrently; jury acquitted on "affiliation" count. Issues: Applicability of perjury rules to prosecutions under false statements act; FBI visits to sitting jurors as to whether they received Communist literature and to warn against possible tampering; standards of membership in Comm. Party; does alleged C.P. rule against resignations bar effective resignation; does resignation require "denunciation" and "break" with C.P.; do opposition to Smith Act and participation in May Day celebration constitute "membership" and/or "support" of C.P.; is "support" limited to support of organization's advocacy of forcible overthrow; is scienter of forcible overthrow necessary in indictment and proof; must "materiality" be alleged in indictment; is "informer" instruction required when government witnesses are all paid informers: (brief contains material on Budenz, Gitlow, Johnson, Harper, Hladun). Appeal argued March 28, 1955; decision reserved.

Harold I. Cammer, Esq., 9 E. 40th St., NYC; Forer and Rein, Esqs., 711 14th St. NW, Washington, D. C.

And see Cammer (560.4).

240.5. U. S. v. Fisher. (CA 9.) Def., former officer of Intl. Woodworkers of Am., indicted on 6 counts for falsely signing Taft-Hartley affidavit. After jury trial, acquitted on 2 counts, convicted on 4 counts; sentence: 5 yrs. on each count, running concurrently. Appeal pending.

C. T. Hatten, Esq., 324 New World Life Bldg., Seattle; R. Max Etter, Esq., 706 Spokane Eastern Bldg., Spokane, Wash.

240.6. U. S. v. Bryson. (ND Cal. SD, #33,630.) Charged with falsely swearing on Taft-Hartley affidavit (18 U.S.C. 1001) : 1) re membership, 2) re affiliation, and 3) re support. After argument, on Govt. motion, 3) was dismissed. Trial before jury, which found Def. not guilty of membership, but guilty of affiliation. This is first case where person found guilty in criminal case of any kind on charge of "affiliation", and first conviction on affiliation only under 9h. Motion for new trial pending.

Trial Judge set $50,000 bail pending appeal on June 21, 1955; same day CA 9 reduced to $20,000.

Richard Gladstein and George R. Andersen, Esqs., 240 Montgomery St., San Francisco.

240.7. U. S. v. Travis. (DC Colo., #14266.) Def. indicted Oct. 28, 1954, re affidavits filed in 1952 and 1953 while secy.-treas. of Mine, Mill and Smelter Workers Union. Indictment contains 6 counts, 3 for each of the two years, alleging false statements with respect to membership in Comm. Party, affiliation with it, and support of it. Motion to dismiss denied March 15, 1955; case awaiting trial in Nov.

Nathan Witt, Esq., 9 E. 40th, NYC; Samuel D. Menin, Esq., Ernest and Cranmer Bldg., Denver, Colo.

240.8. U. S. v. Lohman. (SD Ohio.) Def. convicted Sept. 1955; to be sentenced.

J. Paul Prear, Esq., 1322 Germantown St., Dayton, Ohio.

250. "Loyalty-security" dismissals in private employment

250.1. Black et al. on behalf of United Office and Professional Workers Union Local v. Cutter Laboratories. (USSC.) (See 266 Pac. 2d 92; 278 Pac. 2d 905.) Doris Walker, employee of Def. pharmaceutical manufacturer, became active union member and local president during 3-yr. employment. Discharged 1949 for false statements in employment application (re previous position and educational background) and for being Communist. Bd. of Arbitrators, chosen according to union contract, found discharge based on union activities and not because of Communist charge, since employer had known latter fact 2 yrs. and had waived action. Superior Ct. confirmed award: District Ct. of Appeal unanimously affirmed; Calif. Supreme Ct. (4-3) reversed. Petition for cert. to U.S.S.C. filed May, 1955.

Bertram Edises, Esq., 1440 Broadway, Oakland, Calif.; A. L. Wirin, Esq., 257 S. Spring, Los Angeles, Calif. Amicus brief filed by Nat'l CIO.

And see 470.

255. Denial of Unemployment Compensation

255.1. Re Fitspatrick. (Unemployment Compensation Bd. of Review.) Worker refused compensation after discharge from Westinghouse Electric Co. for alleged Communist Party membership. Decision pending.

Wilner, Wilner & Kuhn, Esqs., Frick Bldg., Pittsburgh, Pa.

255.2. Re Albert. (Unemployment Compensation Referee). Facts and issues similar to Fitzpatrick (255.1). Decision awaited.

Hymen Schlesinger, Esq., Renshaw Bldg., Pittsburgh, Pa.

And see 475.

260. Actions against attorneys based on alleged political associations

260.1. Application of Levy. (USSC.) Proceedings for admission to Bar of U.S.D.C. for S.D. Texas by Ben Levy, Texas att'y. Application denied by U.S.D.C.; affirmed on appeal by CA 5 (214 F. 2d 331), June 23, 1954. Charge: association with attorney "generally considered" to be Communist Party member. Judgment reversed by Sup. Ct. order April 5, 1955, 348 U.S. 978, rev'g 214 F. 2d 331, per curiam.

Bernard A. Golding, Esq., Esperson Bldg., Houston, Texas.

Amicus: George A. Dreyfous, Esq., Nat'l Bank of Commerce Bldg., New Orleans 12, La.

260.2. In re Schlesinger. (Sub-comm. of Comm. on Offenses of Allegheny Cty., Common Pleas Ct., Pa.) Complaint filed June, 1950 charging alleged activities and membership in Communist Party. Hearing began Jan. 1954. Main witnesses against att'y Schlesinger: Matthew Cvetic, Joseph Mazzei; testimony re activities 5-10 yrs. ago.

Hymen Schlesinger, Esq., 808 Renshaw Bldg., Pittsburgh, Pa.

- 12 -

260.3. In re Steinberg. Facts, issues, status of case somewhat similar to Schlesinger (260.2).

M. Y. Steinberg, Esq., 1010 Berger Bldg., Pittsburgh, Pa.

And see 420, 480, and 560.

270. Refusals to issue licenses on "loyalty-security" grounds

270.1. Appeal of Shonick. (Docket No. 8, District of Columbia Bd. of Appeals and Review.) Appeal from denial by the Dist of Col. Superintendent of Licenses of renewal of license as secondhand dealer, on a finding that applicant was "under Communist discipline", chiefly based on applicant's claim of the 5th Amendment before the Comm. on Un-American Activities. After a hearing, Hearing Examiner issued preliminary report recommending reversal of license denial. Counsel for applicant filed certain exceptions to contents of report. Examiner has these under advisement; has not issued final recommendation. David Rein, Esq., 711 14th St. NW, Washington, D. C.
270.2. In re Application of Dispatch, Inc., Erie, Pa., for Renewal of License of Television Station WICU. (Fedl. Comm. Comm., #11048, File BRCT-42.) (Owner: Edward Lamb.) Application pending since April 1953. March 1954: FCC charged Lamb had once associated with Communists, contributed funds to Communist causes, was himself Comm. Party member 1944-1948. Third charge dropped by Comm. without explanation. Hearing began Sept. 15, 1954; FCC produced several witnesses including a bigamist, an ex-murderer and Mrs. Marie Natvig (see Natvig (545.1)), and Lowell Watson (see Zuker (550.1)), both of whom later recanted their testimony.

Testimony concluded; decision of Hearing Officer awaited. J. Howard McGrath and Russell Morton Brown, Esqs., Southern Bldg., Washington, D. C.

280. Denial of passports on "loyalty-security" grounds

280.1. Nathan v. Dulles. (CA DC.) Passport Office denied passport. Court on motion for preliminary injunction directed Passport Office to give Pl. a hearing. 129 F. Supp. 951. No hearing given and motion to punish Office for contempt was accordingly made. In the interim, Pl. had been named executor of the Will of Dr. Einstein and on Pl.'s motion, asked that he be permitted to attend Swiss conference on relativity theory where he could assemble and preserve scientific manuscripts as part of Einstein's estate. Pl. did file affidavit that he had never been a Communist Party member, but he refused to file affidavit re membership in Communist organizations. On May 27, 1955 District Court directed Def. to issue passport because of failure of Passport Office to grant hearing. Def. appealed and made application for a stay. The Court of Appeals on date granted the stay, but only on condition that a "quasi-judicial" hearing be granted, and that the Passport Office report to Court within a specified period of time. On the date that the hearing was to have commenced, the Passport Office granted a passport.

Leonard Boudin, Esq., 25 Broad St., NYC and David Rein, Esq., 711 14th St. NW, Washington, D. C.

280.2. Clark v. Dulles. (DC DC.) Issue same as in Nathan (280.1) and proceedings identical through decision by District Court. After proceedings in Nathan case, Pl. was granted passport without further court action.

Morris Ernst, Esq., 285 Madison Ave., NYC.

280.3. Foreman v. Dulles. (DC DC.) Action to compel issuance of passport, the issues being the same as Nathan (280.1). On a motion for preliminary injunction and for summary judgment, the court in June, 1955 directed the State Department to give Pl. a "quasi judicial hearing". Before the date for hearing had arrived, the Department issued a passport.

Leonard Boudin, Esq., 25 Broad St., NYC and David Rein, Esq., 711 14th St. NW, Washington, D. C.

280.4. Kamen v. Dulles. (DC DC.) Issue same as in Nathan (280.1). Motion for temporary injunction was made and passport was issued before motion was decided.

Nathan H. David, Esq., 425 13th St., NW, Washington, D. C.

280.5. Zlatovski v. Dulles. (DC DC.) Issue same as Nathan (280.1). Complaint was filed and motion made for temporary injunction. After motion was argued, but before it was decided, State Department issued passport valid for 3 months and motion was withdrawn.

Leonard Boudin, Esq., 25 Broad St., NYC and David Rein, Esq., 711 14th St., NW, Washington, D. C.

280.6. McIntire v. Dulles. (DC DC.) Issue same as Nathan (280.1). Complaint filed and motion made for temporary injunction. On argument of motion, passport for 6 months was issued.

Leonard Boudin, Esq., 25 Broad St., NYC and David Rein, Esq., 711 14th St., NW, Washington, D. C.

280.7. Maxfield; Shepard v. Dulles. (DC DC.) Issue in Shepard case the same as in Nathan (280.1). Maxfield's passport was restricted to the United Kingdom and she sued to remove limitations. Complaint filed in June 1955. On August 2, 1955, the State Department granted passport to Shepard and lifted the restrictions on Mrs. Maxfield without further legal proceedings.

John Wasserman and David Carliner, Esqs., 902 Warner Bldg., Washington, D. C. A.C.L.U. as amicus.

280.8. Boudin v. Dulles. (DC DC.) Issue similar to Nathan (280.1). Complaint filed August 1955.

Harry Rand, Esq., Wyatt Bldg., Washington, D. C.

280.9. Shachtman v. Dulles. (CA DC.) Pl. sued to enjoin Secretary of State from denying passport on ground that Pl. was member of organization on the Atty. Genl.'s list. From a dismissal of the complaint in the District Court, Pl. appealed. The Court of Appeals on June 23, 1955 reversed, holding that there was a constitutional right to travel which could not be denied arbitrarily and that mere membership in an organization on the Atty. Genl.'s list was not ground for denial of passport. Subsequently, in August a passport was issued to Pl.

Joseph Rauh, Esq. and Mitchell J. Cooper, Esq., 1631 K St. NW, Washington, D. C.

280.30. Robeson v. Dulles. (DC DC.) Motion to compel issuance of passport and to enjoin Secretary of State from interfering with Pl.'s right to leave the continental United States. Motion for temporary injunction denied by Judge Matthews in August 1955 on ground that Pl. had failed to exhaust administrative remedies. Government's motion for summary judgment is pending. Robeson's case differs from those of Nathan (280.1) and others in that Pl. has refused to sign affidavit denying membership in Communist Party.

Leonard Boudin, Esq., 25 Broad St., NYC and James T. Wright, 2003 12th St., Washington, D. C.

- 13 -

280.31. Golden v. Dulles. (DC DC.) Issue same as Nathan (280.1) except that Pl. has refused to file affidavit with respect to past membership in Communist Party. Complaint filed August, 1955.

Leonard Boudin, Esq., 25 Broad St., NYC and David Rein, Esq., 711 14th St. NW, Washington, D. C.

290. Actions against the foreign-born based on alleged political associations

290.1. Crain v. Boyd, Distr. Dir. (CA 9, #14633.) Appeal from order of District Judge Lindberg dismissing petition for habeas corpus writ to prevent deportation. Crain entered U. S. in 1915. In 1938, Immigration Service commenced proceedings against him on ground of membership in organization that advocated violent overthrow of government, i.e., Communist Party. Proceedings in 1938 suspended; reopened in 1948, terminated in 1953 with order directing deportation on ground of admitted past membership in Comm. Party 1938 to 1940. Pet. contends (1) non-membership in Comm. Party not having been made condition of entry in 1915, cannot now be ground for expulsion; (2) no hearing of any kind held on charge of past membership, report of previous hearing (invalid under the Wong Yang Sung decision as violative of Administrative Procedure Act) having been used as basis for deportation order without further hearing; (3) suspension and delay of proceedings for period of 15 years (from 1938 to 1953), he meanwhile having reached age of 70 years, constitutes, because of delay, denial of due process of law under 5th Amendment. Briefs submitted; argument awaited.

Sarah Lesser, Esq., 2nd and Cherry Bldg., Seattle, Wash. and A. L. Wirin, Esq., 257 S. Spring St., Los Angeles, Cal.

290.2. Heikkila v. Barber. (USSC 1954 Term.) (216 F. 2d, 407.) Heikkila entered U. S. as infant; arrested for deportation on charge of former membership in Comm. Party (see 345 U. S. 229 (1953)). Petition for cert. filed in USSC re the following issues, among others: (1) may alien obtain review of final deportation order under Immigration (Walter-McCarran) Act of 1952 by suit for injunction, declaratory judgment and review under Admr. Procedure Act? (2) Is requirement of fair hearing met where deportee is denied opportunity to establish that Comm. Party to which he had belonged did not at that time advocate violent overthrow of gov't and, if it did, he hadn't subscribed to such advocacy? (3) Is statute providing deportation for former membership in Comm. Party invalid as bill of attainder, ex post facto law, and as contravening 1st and 5th Amendments when undenied allegations show, inter alia, deportee never advocated forcible overthrow and only Gov't evidence is deportee's prior admission obtained during prior unlawful hearing and admitted over objection? (4) Is deportation order invalid because hearing conducted by one officer acting both as prosecutor and hearing officer? Cert. denied, 349 U.S. 927. Lloyd McMurray, Esq., 240 Montgomery, San Francisco. And see Marcello (540.1).
290.3. U. S. v. De la Cruz. (SD Cal. CD #14213-WB.) Def. entered U. S. from Philippines before 1934 Independence Leg. Naturalized April 11, 1947. Denaturalization charge: procured naturalization by fraud (1940 Nationality Act sec. 338) by failing to disclose membership in Comm. Party during previous 10 yrs. Issues: constitutionality of statute; whether trial court could presume concealment was will ful in absence of any evidence other than fact of concealment and Def.'s failure to testify in trial. Denaturalization ordered April 1, 1955.

Esther Shandler, Esq., 408 W. 8th St., Los Angeles, Cal.; Stanley Fleishman, Esq., 1741 Ivar Ave., Hollywood 28, Cal.; Margolis, McTernan and Branton, Esqs., 112 W. 9th St., Los Angeles 15.

300. Refusals to answer questions re political beliefs, affiliations—contempt indictments
A. FEDERAL CASES
301. Before Congressional committees: based on First Amendment/no authority to ask

301.1. U. S. v. Lamont. (SD NY #145-216.) Indictment charged contempt of Senate sub-committee consisting of Senator McCarthy only. Motion made to dismiss granted by Judge Weinfeld. Opinion holds necessary elements of crime (2 USC sec. 192) which must be set out in indictment include (1) that committee in question was empowered by Congress to conduct particular inquiry and source of such power; (2) that inquiry being conducted was within conferred power; (3) that questions declined were pertinent to subject matter of inquiry; and (4) that witness' refusal to answer was wilful and intentional. Finds 1, 2 and 4 lacking in this indictment. Court did not pass on violation of 1st Amdt. rights urged on motion. Gov't is appealing to Ct. of Appeals.

Philip Wittenberg, Esq., 70 W. 40th St., NYC.

301.2. U. S. v. Unger. (SD NY #145-217.) Companion case to Lamont (301.1) involving same sub-committee. Motion to dismiss indictment heard with and granted in same opinion of Judge Weinfeld deciding that case. Gov't appealing to Ct. of Appeals.

David M. Freedman, Esq., 11 Park Pl., NYC.

301.3. U. S. v. Shadowitz. (SD NY #145-2.) Companion case to Lamont (301.1) involving same sub-committee. Motion to dismiss indictment heard with and granted in same opinion of Judge Weinfeld deciding that case. Gov't appealing to Ct. of Appeals.

Victor Rabinowitz, Esq., 25 Broad St., NYC.

301.4. U. S. v. O'Connor. (DC DC.) Indictment to punish Def.-author for contempt for refusal to answer questions of McCarthy sub-committee. Issues: jurisdiction of committee and application of 1st Amdt. Trial date: Oct. 4. Gerhard Van Arkel, Esq., 1830 Jefferson Pl., NW, Washington, D.C.; Leonard Boudin, Esq., 25 Broad St., NYC.
301.5. U. S. v. C. Davis. (WD Mich.) Facts and issues similar to O'Connor (301.4). Following DC decision in Lamont (301.1), a superseding indictment issued. Motions to dismiss to be argued.

Philip Wittenberg, Esq., 70 W. 40th St., NYC.

- 14 -

301.6. U. S. v. Watson. (DC DC.) Facts and issues similar to O'Connor (301.4).

Leonard Boudin, Esq., 25 Broad St., NYC.

301.7. U. S. v. Barenblatt. (DC DC crim. #1154-54.) Facts and issues similar to Lamont (301.1). Added issue: subcommittee questioned Def., but indictment brought for violation of 2 USC 192, which does not mention "subcommittee". Trial set for Nov. 7, 1955.

Philip Wittenberg, Esq., 70 W. 40th St., NYC.

301.8. U. S. v. Lorch. (SD Ohio.) Def.-prof. at Fisk U. declined to answer questions before House Un-American Activities Comm. in investigation of "communism in Dayton area". Issues: pertinency of questions; whether House sub-comm. had authority to subpoena witnesses Sept. 15, 1954 since House adjourned sine die Aug. 20, 1954. Motion for bill of particulars argued May 2, 1955 before Fedl. Judge Cecil; briefs filed.

Fyke Farmer, Esq., 300 W. Bellevue Drive, Nashville, Tenn.

301.9. U. S. v. Russell. (DC DC, Crim. #1230.) Def., on basis of 1st Amendment alone, declined to answer questions concerning alleged Communist activities of himself and alleged associates before Subcomm. of House Un-American Activities Comm. Main issue: validity of Def.'s claim of privilege under 1st Amendment. As to some questions, subsidiary issue: whether Subcomm. made it clear Def.'s claim of privilege under 1st Amdt. was being rejected. No trial date set.

Joseph A. Fanelli, Esq., 1701 K St. NW, Washington, D. C.

301.10. U. S. v. Deutch. (DC DC.) Facts and issues similar to Russell (301.9).

Henry W. Sawyer, Esq., 117 S. 17th, Philadelphia; Edmund D. Campbell, Esq., Southern Bldg., and George H. Goodrich, Esq., Ring Bldg., both of Washington, D. C.

301.11. U. S. v. Markinson. (DC DC.) Facts and issues similar to Russell (301.9).

Charles E. Ford, Esq., Columbian Bldg., Washington, D. C.

310. Before Congressional committees: based on unwillingness to "inform"/lack of authority

310.1. Bart v. U. S. (USSC 1954 Term.) (203 F. 2d 45; 349 U. S. 219.) Facts and issues similar to Emspak (340.1). U.S.S.C. (6-3) by Warren, C. J., reversed conviction and ordered acquittal. Court finds lack of direction to answer and no disposition of objections to questions and therefore no proper foundation for contempt, based on decision in Quinn (340.2).

A. L. Wirin, Esq., 257 S. Spring, Los Angeles, Cal.; James Wright, Esq., 2003 12th NW, Washington, D. C.

310.2. U. S. v. Furry. (DC Mass. Crim. #54-390WA.) Def.-professor refused to answer questions at hearing before one-man Permanent Subcommittee on Government Operations as to names of former associates at M.I.T. Radar Laboratory who were Communist Party members during World War II, names of present Comm. Party members at Harvard Univ., etc. No constitutional privileges were claimed. Issues: pertinency of questions; jurisdiction of subcommittee; constitutionality of 2 USC 192 when construed with Legislative Reorganization Act section establishing said committee. Motion to dismiss indictment denied April 25, 1955; trial date: Autumn, 1955.

Gerald A. Berlin, Esq., 30 State St., Boston.

310.3. U. S. v. Kamin. (DC Mass. Crim. #54,389WA.) Indictment against former research asst. at Harvard University for refusal to answer 6 questions at hearing before one-man Permanent Subcommittee of Senate Committee on Government Operations. In general, the questions called for furnishing names of former associates. April 25, Court denied motion to dismiss indictment. Oct. 5: trial in progress.

Calvin P. Bartlett and John L. Saltonstall, Jr., Esqs., 53 State St., Boston.

310.4. U. S. v. Metcalf. (SD Ohio.) Def.-prof. at Antioch College answered all questions about himself at hearing of House Un-American Activities Comm. but declined to answer questions as to others because he didn't want to become "an informer". Issues: similar to Lamont (301.1). Oct. 3, 1955: Fedl. Judge dismissed indictment on ground of no authority in Comm., similar to Lamont (301.1).

Telford Taylor, Esq., 400 Madison Ave., NYC.

310.5. U. S. v. Arguimbau. (DC Crim. 1149-1954.) Prosecution for refusal to answer questions before Senate Committee on Government Operations. Witness testified to Communist associations of his own but refused to name others. Motion to dismiss indictment denied. Trial date: Oct. 10.

Osmond K. Fraenkel, Esq., 120 Broadway, NYC and Joseph Forer, Esq., 711 14th St. NW, Washington, D. C.

310.6. U. S. v. Singer. (DC DC.) Facts and issues similar to Metcalf (310.4). Trial date: Oct. 24.

Joseph L. Rauh, Jr., Esq., 1631 K St. NW, Washington, D. C.

310.7. Watkins v. U. S. (CA DC #12,797.) Def., representative of UAW-CIO, subpoenaed by House Un-American Activities Committee, testified as to own activities in Communist movement, but refused to tell about persons who had broken with Party, relying on absence of power in Committee to compel him to "expose" others. Convicted; sentence: 1 yr. (suspended) and $500 fine (stayed). Sept. 15: Def.'s brief filed in CA DC included issues: does Congress have authority to delegate to itself or to Committee power to define and determine individual wrongdoing by exposing persons to public scorn and retribution; does such forced testimony as involved here violate 1st Amdt.

Joseph L. Rauh, Jr., Daniel H. Pollitt and Norma Zarky, Esqs., 1631 K St. NW; and Sidney Sachs, Esq., Woodward Bldg., 203, all of Washington, D. C.; and Harold A. Cranefield, Esq., 8000 E. Jefferson Ave., Detroit.

310.8. U. S. v. Keeney. (DC DC.) Def. refused to answer question re who in State Dept. had recommended her for United Nations position when questioned by Senate Internal Security sub-committee, on ground that UN rules forbade her answering. Tried before jury, convicted, $250 and 1-yr. suspended jail sentence. Reversed on appeal. 218 F. 2d 843. Retrial, without jury, April, 1955. Acquitted Apr. 4, 1955.

Frank J. Donner, Esq., 342 Madison Ave., NYC; Joseph Forer, Esq., 711 14th St. NW, Washington, D. C.

- 15 -

320. During trial: based on Fifth Amendment privilege/refusal to "inform"

320.1. U. S. v. Phillips. (CA 9.) Def.-professor called as expert witness for defendants in Smith Act Huff case (110.4). Held in civil contempt for refusing to answer question on cross-examination re other members of Communist Party. Jailed until close of trial, then released and citation for criminal contempt filed by Ct. for same action. Summarily punished by 3 yrs. in prison. Appeal pending, stressing Ct.'s lack of power to impose so long a sentence. Date for oral argument not yet set.

Philip L. Burton, Esq., 2213 E. Union, Seattle. Amicus briefs offered by National Lawyers Guild and by American Civil Liberties Union, Gordon Jaynes, Esq., 1501 Hoge Bldg., Seattle.

320.2. Yates v. U. S. (CA 9.) Def. testified as Def. and as defense witness in Yates (110.1) on her understanding of Marxism-Leninism and her Communist Party activities. On 1st day of cross, she refused to answer 4 questions re Communist Party membership of co-defendants and others. Trial Judge adjudicated Def. in civil contempt and immediately committed her to custody June 26, 1952. Aug. 6 jury returned guilty verdict in Smith Act case. Sept. 3 Trial Judge recommitted Def. on theory that civil contempt effective till case concluded. CA 9 ordered Def. released on bail Sept. 5, 1952 pending appeal of issue. July, 1955, CA 9 reversed: "error to attempt to coerce ... witness into testifying before" disbanded jury which "could not be legally recalled".
320.3. Yates v. U. S. (CA 9.) When Def. in Yates (320.2) was released on civil contempt charge Sept. 6, 1952 on bail ordered by CA 9, Trial Judge sentenced her to 3 years for criminal contempt for continued refusal, after conclusion of trial, to answer same 4 questions involved in civil contempt charge. Bail denied; CA 9 granted release on own recognizance. July, 1955 CA 9 reversed: Trial Ct. had exhausted powers re this contempt by imposing civil contempt during trial; summary proceedings after trial constituted denial of due process.
320.4. Yates v. U. S. (CA 9.) When Def. in Yates (320.2 and 320.3) refused to answer 11 questions re Communist Party membership of other persons on 3rd day of cross in Yates (110.1), Trial Judge held her in criminal contempt but deferred sentencing till conviction and sentencing in principal case. Aug. 8, 1952: 1 yr. for each of 11 counts, to run concurrently after serving sentence in Smith Act case, unless Def. purged herself within 60 days. July, 1955: CA 9 affirmed conviction. Petition for rehearing pending. Issues: (1) Was contempt on 1st day (320.2) and 3rd day (320.4) but one contempt, complete when Def. refused to answer 4 questions on 1st day and said she wouldn't answer any similar questions, so that no separate punishment in 320.4 can be upheld? (2) Wasn't this (320.4) civil contempt (since purpose was to coerce answers) so that Trial Court had lost power to impose imprisonment after trial completed? (3) 1 yr. sentence here is excessive and constitutes cruel and unusual punishment.

Ben Margolis, Esq., in all 3 Yates cases, 112 W. 9th, Los Angeles.

330. During deportation and denaturalization proceedings: lack of authority/refusal to "inform"

330.1. U. S. v. Minker. (USSC #625.) (118 F. Supp. 264, CA 3, #217 F. 2d 350.) Issue: Can naturalized citizen be compelled, under Walter-McCarran Act sec. 235A, to be a witness in an investigation directed to possible revocation of his citizenship. Petition for writ of cert. granted April 11, 1955 (75 S. Ct. 582); to be argued Nov., 1955.

Jacob Kossman, Esq., 1325 Spruce St., Philadelphia, Pa.

330.2. Falcone v. Barnes. (USSC #716.) Facts and issues similar to Minker (330.1). Dist. Ct. held citizens could not be subpoenaed; CA 2 reversed. USSC granted cert. May 16, 1955; to be argued Nov., 1955.

Anthony S. Falcone, Esq., 1213 1st Nat'l Bk. Bldg., Attica, NY.

330.3. Vivian v. U. S. (U.S.S.C. #322.) Def.-native-born US citizen, ordered by Fed'l Judge to appear and give testimony on the right of 2 non-citizens to remain in U.S. under subpoena issued by Immigration & Naturalization Service. June 28, 1955: CA-7 aff'd. Issues: Does subjecting everyone, even native-born citizens, to Imm. Service procedures on mere allegation that their testimony is desired in some alleged investigation constitute unreasonable search and seizure and unlawful invasion of privacy in violation of 4th, 5th and 1st Amdts.? Must complaint show probable cause and state nature of questions to be asked Def.-witness? Petition for writ of certiorari pending in U.S.S.C.

Pearl Hart, Esq., 30 N. La Salle, Edmund Hatfield, Esq., 7 S. Dearborn, both of Chicago.

340. Before Congressional committee: based on Fifth Amendment privilege

340.1. Emspak v. U. S. (USSC 1954 Term.) (95 F. Supp. 1010, 1012; 203 F. 2d 54; 349 U. S. 190.) Def. convicted on 68 counts for violation of 2 USC 192 for refusal to answer questions before House Un-American Activities subcommittee; 6 mos., $500 fine. Issues: jurisdiction of committee; absence of direction to answer; exercise of 1st and 5th Amendment rights as basis for refusal to answer. Argument before U. S. Sup. Ct. Jan. 1954; reargument April 4, 5, 1955.

Supreme Court (6-3) by Warren, C.J., reversed conviction and ordered acquittal on same reasoning as in Quinn (340.2), and Bart (310.1). Court holds additionally that 5th Amendment privilege was properly exercised on question of association with named persons of charged Communist affiliations, even though such association could be explained on an innocent basis.

David Scribner, Esq., 11 E. 51st, and Donner, Kinoy and Perlin, Esqs., 342 Madison Ave., NYC; Allan R. Rosenberg, Esq., 10 Tremont, Boston.

340.2. Quinn v. U. S. (USSC 1954 Term.) (203 F. 2d 20; 349 U.S. 155.) Facts and issues similar to Emspak (340.1), and Bart (310.1). Argument before U.S. Sup. Ct. Apr. 4, 5, 1955. Supreme Court (8-1) by Warren C.J., reversed conviction and ordered acquittal. Court restated constitutional limitations on Congressional investigatory powers and limitations based on individual rights including 5th Amendment. Court holds that where intent to exercise 5th Amendment privilege is evident, no specific language needed. Court holds further that where objection is urged to questions, on any ground, clear direction to answer and overruling of objection is precondition to contempt. 1st Amendment issue not passed upon.

David Scribner, Esq., 11 E. 51st, and Donner, Kinoy and Perlin, Esqs., 342 Madison Ave., NYC; Allan R. Rosenberg, Esq., 10 Tremont, Boston.

- 16 -

340.3. U. S. v. Dunham. (DC DC.) Indictment to punish for contempt for refusal to answer questions of McCarthy sub-committee. Issues: jurisdiction of committee and application of 5th Amendment. Trial date: Oct. 17.

Leonard Boudin, Esq., 25 Broad St., NYC.

340.4. U. S. v. Starkovich. (WD Wash. ND.) (CA 9.) Def. indicted under Title 18, Sec. 1505, making it a felony to "obstruct and impede ..." inquiry by Cong. committee, punishable by 5 yrs. and $5,000. First time this section used in Cong. contempt case. Trial court dismissed this count. Also indicted under Title 2, Sec. 192 for "vilifying and abusing" Velde Comm. on Un-Am. Activities. Trial court dismissed count because, under existing statutes, vilification not a crime. Trial court dismissed 3 counts of refusing to answer because 5th Amdt. properly invoked. Def. convicted on one count; on appeal.

Jay G. Sykes, Esq., 1708 Smith Tower, Seattle, Wash.

340.5. U. S. v. Jackins. (WD Wash. ND.) Case arose out of same hearing as in Starkovich (340.4). Fined $250 and 6-mos. suspended sentence. On appeal, CA 9.

Arthur G. Barnett, Esq., 1304 Northern Life Tower, Seattle, Wash.

340.6. U. S. v. Fagerhaugh. (CA 9.) Def. convicted after court trial of refusing to answer question at Velde Committee hearing as to place of employment. Fined $100 and 30 days. Issues raised also include lack of pertinency and bad faith on part of committee. Awaiting oral argument on appeal in October or November, 1955.

Bertram Edises and Edward R. Grogan, Esqs., 1440 Broadway, Oakland, Calif.

340.7. U. S. v. Grossman. (#12,052, CA DC.) Official of Michigan Comm. for Protection of Foreign Born convicted for refusing to answer question re production of Comm. documents before Un-American Activities Comm. Issue: can privilege against self-incrimination apply here? Appeal pending.

Forer and Rein, Esqs., 711 14th St. NW, Washington, D. C.

340.8. U. S. v. Hoag. (DC DC.) Def.-employee in defense plant, in testifying before Senate Permanent Sub-comm. on Investigations, denied committing espionage but claimed 1st and 5th Amendments in declining to answer 7 questions re her political affiliations and associations. June 21, 1955: indicted for contempt of Congress.

Richard Lipsitz, Esq., 605 Brisbane Bldg., Buffalo, NY.

350. Before Court or grand jury: based on Fifth Amendment privilege
351. Federal Immunity Statute invoked

351.1. U. S. v. Ullmann. (USSC.) (128 F. Supp. 617; CA 2, #C-146/338.) Def. declined to answer questions before grand jury; Dist. Ct. judge granted immunity under Immunity Act of 1954; Def. still declined. Sentence: 6 mos. April 4, 1955 Ct. of App. upheld constitutionality of Act with serious misgivings. (Opinions by Frank, J., for Court, Clark, J. and Galston, J., concurring.) USSC granted cert.; briefs due Oct., 1955.

Nathan Witt, Esq., 9 E. 40th, and Leonard Boudin, Esq., 25 Broad, both NYC. Amicus briefs filed by National Lawyers Guild, 40 Exchange Pl., NYC, Osmond K. Fraenkel and Jessica Davidson, Esqs., and by Emergency Civil Liberties Committee, NYC, Royal W. France, Esq., 104 E. 40th, NYC.

351.2. U. S. v. Fitzgerald. (SD NY.) Def. called as witness before Grand Jury allegedly inquiring into wartime espionage activities; invoked 5th Amdt. in refusing to reply to certain questions and refused to accept immunity offered under Compulsory Testimony Act. Sentenced to 6 months by Fed'l Judge Walsh although constitutionality of Act to be argued before USSC this term. (See Ullmann (351.1).) Conviction is being appealed.

Milton H. Friedman, Esq., 342 Madison Ave., NYC.

360. Inability/refusal to produce records before Congressional Committees

360.1. Flaxer v. U. S. (CA DC #12,027.) Pres. of United Public Workers Union convicted of contempt under 2 USC 192 for failure to produce lists of union members employed by federal, state, county and municipal gov'ts when demanded by 1-man Sub-committee on Internal Security. Issues: pertinency of lists, particularly of non-federal employees; no direction to answer by quorum of sub-committee. Appeal filed Oct. 16, 1953; pending.

Forer and Rein, Esqs., 711 14 St. NW, Washington, D. C.

370. Inability/refusal to produce records before Court/grand jury

370.1. Patterson v. U. S. (CA 2, #186.) (125 F. Supp. 881, rev'd 219 F. 2d 659.) Appellant ordered by Internal Revenue Dept. to produce receipt books showing names and addresses of contributors to Civil Rts. Congress. Appellant failed to comply; convicted of civil contempt; 90 days. Upon his release, again asked for receipts and 1953 books. Upon non-compliance, referred to grand jury, where appellant swore he had not had possession of documents since beginning of first jail sentence. District Judge ordered production; not produced; contempt sentence of 90 days. Ct. of App. reversed (2-1) on ground Gov't had not proved continued existence of such records.

Milton H. Friedman, Esq., 342 Madison Ave., NYC.

380. Indictment for perjury before Congressional committees

380.1. U. S. v. Lattimore. (DC DC.) Def. testified at length in 1952 before McCarran Senate Internal Security Sub-committee. First indictment filed December 1952 charging perjury in Def.'s statement that he had never been a sympathizer or promoter of Communist interests, and on 6 other minor points. Federal Judge Youngdahl struck down key count, 112 F. Supp. 507 (1953), aff'd in DC Ct. of App., 215 F. 2d 847 (1954). Def. reindicted October 1954 on 2 counts: following Communist line and promoting Communist interests. Gov't filed affidavit of bias against Judge Youngdahl. Affidavit stricken as scandalous and second indictment dismissed, 127 F. Supp. 405 (1955). Gov't appealed to DC Ct. of App.; CA aff'd July, 1955. Dismissed at Gov't's request.

Arnold, Fortas and Porter, Esqs., 1229 19 St. NW, Washington, D. C.; Sen. Joseph C. O'Mahoney, Senate Office Bldg., Washington, D. C.

- 17 -

B. STATE CASES
390. Before state official—based on First Amendment-equivalent

390.1. New Hampshire, by Wyman, Atty. Genl. v. Sweezy. (N.H. Sup. Ct., #4395.) Petition by Atty. Genl. to compel Sweezy to answer his questions in investigation re violations of Chap. 193, N. H. Laws of 1951 (Subversive Activities Act). Def. denied under oath Communist Party membership, refused to answer questions re Progressive Party membership and organization, contents of his lecture at U. of N. H., on grounds of irrelevancy, 1st and 14th Amendments. Superior Ct. ordered him to answer; he declined; adjudged in contempt and ordered confined till he answered. Def. admitted to bail. Argument in Nov. term.

William L. Phinney, Esq., Amoskeag Bank Bldg., Manchester, N. H.

395. Before state body—based on Fifth Amendment privilege-equivalent
396. State Immunity Statute invoked

396.1. Regan v. New York. (282 App. Div. 775, 122 N.Y.S. 2d 478; 306 N.Y. 747, 117 N.E. 2d 921; 349 U.S. 58.) Pet.-former policeman signed waiver of immunity against prosecution, left force, 22 mos. later called before grand jury and asked if he'd accepted bribes while in Police Dept. Refused to answer after direction to answer; found guilty of contempt and sentenced: 1 yr. 349 U. S. 58, by Reed, J.: Pet. was required to answer, whether or not waiver was coerced or misunderstood, because if so, state immunity statute would prevent prosecution. Black, J. (Douglas, J., concurring) dissented: ". . . it is a completely novel idea that a waiver device of this kind can destroy constitutional protections . . . it has never been held before that the privilege against self-incrimination or any other Bill of Rights safeguard can be bargained away far in advance of the day when needed as protection against the overreaching power of government."

Emanuel Redfield, Esq., 60 Wall St., NYC.

396.2. Ohio v. Morgan. (Ohio Sup. Ct. #34,311.) April 1952 Def. appeared before Ohio Un-American Activities Commission (now defunct) and, without counsel, declined to answer all questions on basis of "the Fifth Amendment". May 1954: convicted on 32 counts of contempt of legislature, acquitted on 5 counts as repetitious or irrelevant; fined $500. Ohio Ct. of App. affirmed without opinion. Issues: (1) Can willful refusal to answer be shown in absence of direction to answer; (2) can witness in state proceeding claim privilege by reference to federal constitutional provision as long as questioning body understands answer as claim of privilege; (3) does broad state immunity statute automatically operate to erase claim of privilege. Argued before Ohio Sup. Ct. day after decision in Emspak (340.1); reargued Oct. 5; decision reserved.

Ann Fagan Ginger, Esq., 170 New York Ave., Brooklyn, N. Y.; Thelma Furry, Esq., 2d National Bldg., Akron, Ohio.

396.3. Ohio v. Jackson and Terrill. Similar to Morgan (396.2). Found guilty Nov., 1954; fined $300. Appeal awaiting decision in Morgan.

Thelma Furry, Esq., 2d National Bldg., Akron, Ohio.

396.4. Ohio v. Hupman, et al. Mistrial declared when prosecutor referred to "rats in the granary". On new trial, 4 Defs. found guilty under general contempt of legislature statute. On appeal to Ct. of App.

J. Paul Prear, Esq., Dayton, Ohio.

396.5. Ohio v. Raley, et al. (Ohio Sup. Ct.) 3 Defs. found guilty, fined $500 and 10 days. Ct. of App. upheld trial court's decision that Commission had legal existence following sine die adjournment of General Assembly which created it; rejected defense argument based on Nelson (130.1) that Commission had no power to ask questions re national and state defense since this field had been superseded by federal legislation; reversed conviction on several counts because no direction to answer was given. Appeal argued before Ohio S. Ct. Oct. 5, 1955.

Louis C. Capelle, Esq., Keith Bldg.; Morse Johnson, Esq., 921-23 Dixie Terminal Bldg.; Milton H. Schmidt, Esq., Atlas Bank Bldg.,; and Chester R. Shook, Esq., Keith Bldg., all of Cincinnati, Ohio.

396.6. Ohio v. Slagle, et al. (Stark Co. Com. Pleas Ct., #15972.) Trial court sustained demurrer to indictments for contempt of legislature holding such contempt was not a criminal act and therefore not indictable. Ct. of App. reversed; State Sup. Ct. refused to review decision. Jury trial then waived; each found guilty of contempt on several counts and sentenced to $500 and 10 days. On appeal.

J. L. Hilton, Esq., Canton, Ohio.

396.7. Ohio v. Arnold, Thelma Furry, et al. (Ct. of App., 9th Dist., #4524-4531.) Trial Ct. held that proceeding under contempt of court provisions was the only permissible method under statute creating Un-American Activities Commission; denied jury trial. Held: immunity statute automatically granted complete immunity. Each Def. found guilty of 1 contempt, fined $500. Briefs filed with Ct. of App. Awaiting decision in Morgan (396.2) and Raley (396.5).

Thelma Furry, Esq., 2d National Bldg., Akron (the late Jack B. Dworken, Esq.).

400. Sanctions against individuals for refusals to answer
A. BASED ON FLAT REFUSALS TO ANSWER
410. Denial of public housing—Gwinn Amendment oath

410.1. Rudder v. U. S. (CA DC, #12,313.) Eviction case involving constitutionality of Gwinn Amdt., requiring all tenants in publicly-owned housing units to take oath that they do not belong to any organizations on Att'y Gen'l's list. CA DC reversed Dist. Ct., holding: tenant being evicted from government housing entitled to due process; refusal to sign oath not proof of membership in any organization listed; even membership, without knowledge of subversive character of organization, would not justify eviction. Court did not reach or rule on constitutionality of law.

Forer and Rein, Esqs., 711-14th St. NW, Washington, D.C. Amicus brief filed by A.C.L.U., James H. Heller, 1026 Woodward Bldg., Washington, D.C.

See recently reported cases: Chicago Housing Authority v. Clark and Blackman (4 Ill. 2d 319, 123 NE 2d 522), in which similar oath was held not authorized by Illinois statute.

- 18 -

410.2. Lawson v. Housing Authority of City of Milwaukee, et al. (U.S.S.C., #354) (270 Wis. 269, 70 N.W. 2d 605.) On June 1, 1955, Wisconsin Supreme Court reversed judgment of the lower court dismissing complaint asking declaratory relief contending Gwinn Amdt. and local resolution implementing same were in violation of state and federal constitutions. Wis. S. Ct. held: local resolution of Housing Authority implementing Gwinn Amdt. unconstitutional and void as violation of the 1st Amdt. and comparable section of state Const., and that there is no rational relation between alleged subversion and carrying out Fedl. housing program. Aug. 26, 1955, Housing Authority of the City of Milwaukee filed petition for writ of cert. in U.S.S.C., which Pls. are not opposing.

M. Michael Essin, Esq., 623 N. 2nd St., Milwaukee, Wis.; Osmond K. Fraenkel, Esq., 120 Broadway, and Paul L. Ross, Esq., 160 Broadway, NYC.

410.3. Dailey, et al. v. Housing Auth. of City of Seattle. (Wash. S. Ct.) Decision adverse to Pls. in trial court. Appeal argued in Wash. S. Ct. May 2, 1955; decision awaited. Solie M. Ringold, Esq., 1815 Smith Tower, Seattle, Wash.
410.4. Peters v. N. Y. C. Housing Authority. (NY App. Div., 2d Dept.) (128 NYS 2d 224 and 712; 307 NY 519.) Loyalty oath originally held unconsitutional. Now on appeal, under Art. 78, Civil Practice Act, from final order dismissing proceeding to annul def.'s resolution requiring tenants to sign oath. June 1, 1955: Motion to stay eviction pending appeal denied, but Ct. acted without prejudice to later motion for stay if eviction warrant is issued by Municipal Ct. Case to be argued Fall, 1955.

Paul L. Ross, Esq., 160 Broadway, NYC.

410.5. Weixel v. N. Y. C. Housing Authority. (NY App. Div., 2d Dept.) Action for declaratory judgment and injunction to have Gwinn Amdt. declared unconstitutional brought by tenants who refused to sign the required loyalty certificate. Dismissed, following Peters (410.4); 143 NYS 2d 589. Appeal pending.

Osmond K. Fraenkel, Esq., 120 Broadway, NYC.

410.6. Levine v. N. Y. C. Housing Authority. (Sup. Ct., Bronx Co., #7289-1955.) Facts and issues similar to Weixel (410.5). Case pending undetermined.

Osmond K. Fraenkel, Esq., 120 Broadway, NYC.

410.7. New York City Housing Authority v. Sichel, et al. (1st Dist., Brooklyn.) Eviction action against 16 tenants who refused to sign Gwinn Amdt. oath, adopted by Pl. Housing Auth. Defs. argue that decision in Peters (410.4) is not binding here and is not a final decision. Tried Sept. 19, 1955; decision awaited.

Paul L. Ross, Esq., 160 Broadway, Arthur Schutzer, Esq., 25 Broad, Osmond K. Fraenkel, Esq., 120 Broadway, all of NYC.

410.8. Dupree v. Baltimore City Housing Authority. Action by tenant to restrain eviction for failure to sign Gwinn Amdt. loyalty oath. Case pending; tenant remains in project and pay rent.

Harold Buchman, Esq., 205 Tower Bldg., Baltimore 2, Md.

410.9. Wheatley, et al. v. Buffalo Municipal Housing Authority. Action by tenants of Lakeview Housing Project commenced May 1, 1953. Case pending; tenants remain in project and pay rent.

Martin R. Bradley, Jr., Esq., 900 Ellicott Square, Buffalo 3, NY.

420. Actions against attorneys

420.1. In Re Anastaplo. (USSC.) Proceedings for admission to Bar of Ill. Comm. on Character and Fitness refused to approve application because applicant, after discussing political beliefs, refused to answer questions re political affiliations, newspaper subscriptions, etc. Ill. Sup. Ct. affirmed Sept. 23, 1954 (3 Ill. 2, 471, 121 N.E. 2, 826). Cert. denied, appeal dismissed by U.S.S.C. Feb. 28, 1955 "for want of a substantial federal question"; rehearing denied Apr. 12, 1955 (349 U. S. 908). Summary motion made by Anastaplo to U.S.S.C. for leave to file application for admission to Bar of U.S.S.C. Motion denied; no opinion Apr. 12, 1955 (349 U. S. 903).

George Anastaplo pro se, 6027 Ellis Ave., Chicago, Ill.

420.2. In re Welanko. (N. Hamp. S. Ct. #4390.) Atty. Genl. conducted investigation re violations Subversive Activities Act—1951. (See Sweezy, 390.1 and World Fellowship brief, 170.1.) He received testimony that member of N.H. bar, Abraham Welanko, now of Calif., was member of Communist Party during residence in N.H. Atty. Genl. filed complaint seeking order for interrogation on subject and disbarment if question not answered or claim of privilege raised. Jan., 1955 copy served on Welanko in Calif. who did not answer or appear before N.H. court on March 2, 1955. Per curiam decision March 11, 1955: suspended for default: 112 A. 2d 50.

And see 260, 480, 560.

430. Loss of individual tax exemptions (Calif.)

430.1. Speiser v. Randall. (Calif. Superior Ct.—Contra Costa County.) Plf.-att'y, as honorably discharged veteran, entitled to veteran's exemption for real property except that he refused to sign "loyalty declaration" required by Rev. and Tax. Code, Sec. 32 and recent constitutional amdt. (Art. XX, Sec. 19). Feb. 9, 1955, held: those provisions unconstitutional because violations of right of freedom of speech; making politically unorthodox pay higher taxes does not "reasonably tend to avert a clear and present danger to the state." ". . . one, no matter how subversive his activities may have been, is entitled without making such [loyalty oath] to claim the same exceptions as others on state, income and inheritance taxes as well as other state and local taxes." It is unreasonable classification to require affidavit only from those seeking tax exemptions on real property, most of whom are veterans. Dist. Atty. filed appeal May 2, 1955 in Calif. Supreme Ct.

Lawrence Speiser, Esq., Staff Counsel, Am. Civil Liberties Union of N. Calif., 503 Market St., San Francisco.

- 19 -

430.2. Prince v. City & County of San Francisco. (Calif. Superior Ct.—San Francisco.) Suit for recovery of property taxes paid under protest. Facts and issues same as Speiser (430.1). July 25, 1955 held: loyalty oath constitutional. Appealed directly to Calif. Supreme Ct.

Ralph T. Wertheimer, Esq., and Lawrence Speiser, Esq., A.C.L.U. of N. Calif., 503 Market St., both of San Francisco.

430.3. Lehrer v. Hall. (Calif. Superior Ct.—Marin County.) Declaratory relief action, facts and issues same as Speiser (430.1).

John Douglas Short, Esq., Sausalito, and Lawrence Speiser, Esq., for A.C.L.U. of N. Calif., 503 Market St., San Francisco, Calif.

430.4. Bliss v. Quinn. (Calif. Superior Ct.—Los Angeles.) Facts and issues similar to Speiser (430.1).

A. L. Wirin, Esq., 257 S. Spring St., Los Angeles.

440. Attacks against academic loyalty oaths

440.1. Savelle and Nostrand v. U. of Wash., et al. (Thurston Cty. Superior Ct.) Order issued Aug. 29, 1955 temporarily restraining Def.-University from requiring faculty loyalty oaths from Pl.-professors and others under 1955 Wash. loyalty Act, which provides immediate mandatory discharge for any Univ. employee who fails to sign notarized oath that he is not member of Communist Party or any organization on Atty. Gen'l's list. (See Guild (160.1.)) Issues: whether Act violates Pls.' rights under 1st, 5th and 14th Amdts., and Art. I, sec. 10 (bill of attainder) of U.S. Const.; whether organizations on Atty. Gen'l's list had opportunity for fair hearing on charges. Judge Wright set Oct. 17 as hearing date to determine whether temporary order should prevail till judicial determination of constitutionality of Act.

Solie Ringold, Esq., 1201 Dexter Horton Bldg., Seattle.

B. BASED ON CLAIM OF FIFTH AMENDMENT PRIVILEGE
450. Refusal of honorable discharge from Armed Services

450.1. 1st Lt. M.D. (Army Discharge Review Bd.) Dr. entered active duty with 1st Lt.'s comm. Oct., 1952, claimed 5th Amdt. privilege and Art. 31, Uniform Code of Military Justice in declining to fill out "loyalty oath" re affiliation with listed organizations (based on Att'y Gen'l's list, see Guild (160.1)). Nov., 1953, Dr. advised that action had been started requiring him to show cause why he should be retained in Army and stating option to resign under Honorable Condition (A.R. 605-275). Dr. exercised option but in March, 1954 advised that resignation not accepted, new charges submitted, resignation would result in other than Honorable Discharge. Evidence before Bd. of Inquiry was solely classified documents not shown Dr. or counsel, and summary of information, some favorable. Discharge issued "under other than honorable conditions." At Army Discharge Review Bd. hearing same evidence plus Army record (efficiency ratings). Legal issues raised: applicability of Uniform Code of Military Justice, 50 USC 551, 730, and Armed Forces Reserve Act of 1952, sec. 249c, Army Regs. 605, 200 and 275; S.R. 605-290-1, and 600-220-1; claim of privilege; due process—5th Amdt. and Armed Forces Reserve Act 1952; 1st Amdt.; discharge based on pre-Army conduct beyond Army's jurisdiction. Discharge changed to "general discharge under Honorable Conditions."

William Rossmore, Esq., 60 Park Pl., Newark.

450.2. Re Private Staebler. (Army Discharge Review Bd.) Pvt. Staebler received undesirable discharge on charges that he and his wife were both members of Socialist Workers Party: he had "definite communistic tendencies"; he had invoked privilege under the 5th Amdt. in answering an Army questionnaire. On appeal to Army Discharge Review Bd., hearing held July 7, 1955. Aug. 30, Review Bd. directed discharge be changed to provide for "a discharge under honorable conditions." No reason was given for the decision.

Victor Rabinowitz, Esq., 25 Broad St., NYC.

450.3. St. Helen v. Lt. Gen. Wyman, et al. (CA 9, #14,619.) Suit brought by Pl.-soldier to prevent issuance of undesirable discharge, based primarily on Pl.'s failure to complete "loyalty oath" at time of induction. Oct., 1954: Dist. Judge issued temporary order restraining Army from tendering any discharge pending outcome of suit. Undesirable discharge issued Oct. 29, 1954. Dec., 1954: Dist. Judge ruled Army had violated Oct. order. April, 1955: CA 9 dismissed Army's appeal from this ruling. Issue: whether Army can consider anything which did not occur during service as bearing on type of discharge, when service record called for honorable discharge. Hearing on merits not yet scheduled.

Allan Brotsky, Esq., 785 Market St., San Francisco; Ben Margolis, Esq., 112 W. 9th, Los Angeles.

450.4. Marshall v. Lt. Gen. Wyman, et al. (ND Calif. S. Div., #34533.) Final briefs have been submitted to Fedl. Judge Roche on: whether Army violated March 26, 1955 court order enjoining issuance of any discharge by mailing undesirable certificate 2 days later, and basic issues listed in St. Helen (450.3).

Dreyfus and McTernan, Esqs., 57 Post St., San Francisco; Daniel J. Marshall, Esq., 1151 S. Broadway, Los Angeles.

And see cases at 225.

455. Dismissal from government employment

455.1. Lerner v. Transit Authority. (#15187-1954 App. Div., 1st Dept., N.Y.) (N.Y. Law Jour., Jan. 24, 1955.) Action to review dismissal of employee of Transit Authority under N.Y. Security Risk Law. Issue: is refusal to answer questions on grounds of constitutional privilege sufficient cause for dismissal? Appeal pending.

Leonard Boudin, Esq., 25 Broad St., NYC.

- 20 -

460. Dismissal from academic employment

460.1. Opinion of Justices of Mass. Sup. Jud. Ct. (Re House Bill 2590.) Under Mass. procedure, legislature (General Court) can ask Justices whether proposed statute would be constitutional. H. 2590 provides for discharge of any professor in public or private school or college, who, for any reason whatsoever, refuses, at trial or hearing or inquiry, to answer questions re past or present Communist Party membership. Held, April 13, 1955; would be unconstitutional "as an interference with the exercise of the constitutional privilege against self-incrimination and as a form of compelling a person through fear of legal consequences 'to accuse, or furnish evidence against himself'." (House Report No. 2707.)
460.2. H. B. Davis v. University of Kansas City. (DC Mo.) Pl.-professor, with tenure, discharged for refusing to answer question re Communist Party membership on basis of 5th Amendment before Senate Int'l Security Subcom. and University trustees' inquiry. Suit for mandatory injunction ordering reinstatement dismissed by District Judge Whittaker, Apr. 15, 1955. Motion for new trial and for rehearing denied, also affidavit of bias against Judge Whittaker for stating, in Memorandum and Order sustaining motion to dismiss: ". . . The public will not stand, and they ought not to stand, for such reticence or refusals to answer by the teachers in their schools." Pl. also moved for leave to amend complaint by adding as parties-Def. the individual trustees participating in meeting where he was called on to answer questions in such way as to be conspiracy to intimidate, oppress and injure him for exercising Constitutional right (in violation of 18 U.S.C. 241).

Fyke Farmer, Esq., 300 W. Bellevue Drive, Nashville, Tenn.

460.3. Slochower v. Bd. of Education. (USSC #466.) Appellant NY teacher with tenure was dismissed without charges or hearing for declining to answer question re membership in Communist Party prior to 1940 on basis of privilege against self-incrimination before Senate sub-comm. Bd. of Education followed Sec. 903, NYC Charter, which provides that municipal employee forfeits position and becomes ineligible for future municipal employment if he asserts privilege in refusing to answer before authorized body. (See Daniman et al. v. Bd. of Educ., 118 NYS 2d 487, 122 NYS 2d 905, 119 NE 2d 373, 121 NE 2d 629). NY Ct. of App. aff'd (4-3), holding: teachers are employees of city and come within City Charter. Ct. did not pass on any constitutional questions. US Sup. Ct. noted probable jurisdiction.

Ephraim S. London, Esq., 150 Broadway, NYC. Amicus: New York Civil Liberties Union, Osmond K. Fraenkel, Emanuel Redfield, Nanette Dembitz, Esqs., all of NYC.

460.4. Bd. of Education of City of Los Angeles v. Eisenberg. (Calif. Dist. Ct. of App.) Public school teacher discharged for refusing to tell State Sen. Investigating Comm. whether she belonged to Communist Party, despite Bd. of Education rule providing that refusal to answer such question made one guilty of insubordination, unprofessional conduct and subject to dismissal. Dist. Ct. of App. upheld validity of rule and dismissal. Jan., 1955: Calif. Sup. Ct. (4-3) denied a hearing.

William B. Esterman, Esq., 6331 Hollywood Blvd., Hollywood, California.

And see Faxon v. School Committee of Boston (Mass. Sup. Jud. Ct.), 120 N.E. 2d 772.

460.5. Steinmetz v. Calif. State Bd. of Ed. (Calif. S. Ct., #6530.) Pet. dismissed as professor at San Diego State College on ground he had refused, at hearing before state board, to state whether he had "knowingly" been a member of Comm. Party. District Ct. of App. denied writ of mandate (Third App. Dist., Civ. No. 8586, 126 A.C.A. 192, 271 P. 2d 614). Aff'd on appeal to Calif. Sup. Ct. (6 to 1). Majority held: Pet.'s discharge was not because of membership in Comm. Party but because of his refusal to answer questions. Carter, J., in long dissenting opinion, held that Pet. had answered the questions, that in any event the statute under which the state board acted was unconstitutional, violation of 5th Amdt.

A. L. Wirin and Fred Okrand, Esqs., 257 S. Spring, Los Angeles.

And see 230 and 440.

470. Dismissal from private employment

470.1. United Electrical, Radio & Machine Workers of America (UE), et al. v. General Electric Company. (CA DC #12,628.) Issues: (1) Whether it is "obvious" cause for discharge that employee in private industry having no access to "classified" work properly asserts constitutional privilege against self-incrimination under 5th Amdt. in response to questions by Congressional Comm. inquiring into his political beliefs and affiliations? (2) Whether Senate, as part of Legislative branch of Government, may fore-close relevant testimony or production of relevant documents by agents of Senate Sub-committee in proceeding before Judicial branch of Gov't merely by naked assertion of "privilege" of Senate where no question of secrecy of military or international affairs is involved and where activities inquired into are beyond legitimate scope of activities of Senate or Sub-committee? (3) Whether U.S. Ct. is foreclosed by naked assertion of a "privilege" by Senate, in Senate resolution forbidding agents of Senate Sub-committee to give relevant testimony and produce relevant documents, from inquiring into facts and determining for itself whether or not evidence sought is in truth within scope of any privilege of Senate? Appeal pending in CA for Dist. of Col.

David Scribner and Basil Pollitt, Esqs., 11 E. 51st, and Arthur Kinoy, Esq., 342 Madison Ave., all of NYC; Joseph Forer, Esq., 711-14th St. NW, Washington, D.C.

And see cases at 250.

475. Denial of unemployment compensation

475.1. Trachtenberg v. Mich. Employment Security Commission. (Circuit Ct., Genesee City., Mich.) App. was discharged by General Motors Corp., Flint, where he was employed, after he refused to testify before House Un-American Activities Comm. He applied for unemployment benefits but these were denied him on statutory authority, because of alleged misconduct in connection with his employment. The court, in reviewing finding of referee and appeal board holds evidence did not sustain poor work record or misbehavior, nor did his conduct before Comm. warrant his discharge. The court held, however, that distribution of letter by appellant in front of employer's place of business, making unsupported charges that it "whipped-up violence" against him with aim of general terror and smashing of union was conduct warranting discharge and loss of unemployment benefits.

Leitson and Dean, Esqs., 802 Detroit St., Flint.

- 21 -

475.2. Garfield v. Division of Employment Security and Allis Chalmers. (Mun. Ct. Boston #410636.) Pl., who had been employed by Allis Chalmers, was discharged by them because of asserting the 5th Amdt. in answer to questions as to Communist Party membership before the McCarthy Comm. His applications for unemployment benefits were denied by the referee and the Board on review on ground that discharge was based on voluntary acts constituting misconduct. Action challenged ruling of Board as violation of Pl.'s constitutional rights, denial of due process and equal protection of laws.

Allan R. Rosenberg, Esq., 10 Tremont St., Boston.

And see cases at 255.

480. Disbarment of attorneys

480.1. Sheiner v. Florida. (Fla. S.C.) Appeal by Fla. att'y from judgment entered Sept. 8, 1954 by Giblin, Circuit Judge, 11th Jud. Cir. (167991-H, Dade Cty.) disbarring respondent for use of 5th Amdt. privilege in declining to discuss political affiliations. Appeal argued April 5, 1955; July: Fla. S. Ct. reversed disbarment for use of privilege, rejected Am. Bar Assn. position, and remanded for trial on question of Sheiner's alleged Communist Party membership. Atty. complaining against Sheiner petitioned for rehearing; Oct. 4: denied.

Jack Kehoe, Esq., 621 Shoreland Bldg., Louis Jepeway, Esq., Biscayne Bldg., both of Miami; Amicus brief: National Lawyers Guild, 40 Exchange Pl., NYC, and John M. Coe, Pensacola, Fla.

480.2. Re Witt. (SD Tex.) (See Jencks (240.3) and Matusow (545.2).) Witt, one of counsel for Jencks, during presentation of motion for new trial, was directed to take the stand by the Court. Witt claimed 5th Amdt. privilege on question by Court re Comm. Party membership. Ct. announced that no lawyer who claims the privilege can practice in his Ct. No order entered re Witt, therefore no order to appeal from.

Nathan Witt, Esq., 9 E. 40th St., NYC.

And see 260, 420, 560.

II. RIGHT TO FAIR PROCEDURES AND TRIAL—FOURTH, FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS

510. Use of evidence illegally obtained—Fourth Amendment
511. Wiretapping

511.1. New York v. Broady. (NYC Genl. Sess. Ct.) Def.-attorney and private investigator indicted May 2, and reindicted Sept. 20, 1955 as "prime mover" in NYC wiretap conspiracy. Charged with tapping phones listed to 14 persons, including corporation lawyer, Pepsi-Cola chairman, singer, private detective, student, two companies. Indictment: 1 conspiracy count, 15 counts of illegal wiretapping, 4 counts unlawful possession of wiretap instruments. Def. pleaded not guilty; released on $2,500 bail. 2 other Defs., dismissed Telephone Co. employees, pleaded guilty to conspiracy and 2 wiretap counts June 20; awaiting sentencing.

Dist. Atty. Frank S. Hogan, NYC.

511.2. Pennsylvania v. Chaitt. (U.S.S.C., Oct. Term, 1955, No. 141) (112 A. 2d 379—Pa. Sup. Ct. affirming 176 Pa. Super. 318, 107 A. 2d 214.) Def. convicted of bookmaking and being a common gambler; State's principal evidence was certain telephone conversations between Def. and another intercepted by 2 local police officers who had placed tap on phone wire leading into the second person's apartment. Officers testified, over objection, to contents of conversations which revealed Def. receiving and accepting horse bets from second person. Pa. Sup. Ct. held: (1) 4th Amdt. does not bar state prosecution for state crime; (2) wiretapping not violation of 4th Amdt. since that prohibition relates only to material things, and a telephone conversation is not such; (3) Fed. Communications Act. of 1934, Sec. 605, prohibiting interception and divulging of wire communications, does not apply to state officials testifying in state prosecutions re intra-state matters only. Petition for cert. pending in U.S.S.C.

(The late Lemuel B. Schofield, Esq.), John B. Brumbelow, Esq., 1810 Morris Bldg., Philadelphia; W. Hensel Brown, Esq., Lancaster, Pa.

511.3. People v. Cahan. (Cal. 44 AC 461, 1955). (274 P. 2d 724.) Cal. Sup. Ct. reversed conviction of conspiracy to engage in bookmaking obtained largely on incriminating evidence obtained by police by illegal wiretaps from Def.'s home and unlawful searches and seizures obtained by forcible entries. Following suggestion of US Supreme Court in Irvine v. California, 347 U. S. 128, court re-examined question of admissibility of such illegally obtained evidence and over-ruling existing state rule on the subject, held such evidence not to be admissible. Good summary of arguments pro and con on the subject.

Russell E. Parsons, Esq., Los Angeles.

511.4. Wirin v. Parker, L. A. Police Chief. (Super. Ct. #590862.) Taxpayer's suit to enjoin expenditure of public funds for illegal purpose, to wit: police surveillance by dictograph installation and use, as described in Irvine v. California (347 U. S. 128) and Cahan (511.3). Submitted to Trial Judge McCoy.

Nathan L. Schoichet, Esq., 8907 Wilshire Blvd., Beverly Hills.

- 22 -

520. Right to indictment by grand jury of one's peers—Fifth Amendment
521. Challenge based on presence of Government employees
U.S.S.C. did not reach this issue in its opinion in Quiun (340.2). See Gold (240.4) and Cammer (560.4). 13 gov't employees on indicting grand jury; 5 on petit jury plus wife of gov't employee. Gold CA brief contains affidavit of professional social psychologist on impact of loyalty-security measures on gov't employees in District of Col. This issue has been raised in many other cases arising in District of Columbia courts, not listed here. All decisions on this question will be reported.
522. Challenge based mainly on absence of economic cross-section All cases at 110.

522.1. Dow v. Carnegie-Illinois Steel Corp. (CA 3, #10,946.) Personal injury action; appellant, with consent of respondent and court, adopted proof challenging method of jury selection presented in Mesarosh (110.5). Held Je. 1955: although various segments of population were disproportionately represented or omitted from jury lists, compiled by "random solicitation" from sources not including trade unions, Jewish, Catholic or Negro organizations, this did not establish "systematic and international exclusion of any of these groups". Not necessary that "every jury ... contain representatives of all ... economic, social, religious, racial, political and geographical groups of the community".

Hymen Schlesinger, Esq., 808 Renshaw Bldg., Pittsburgh.

523. Challenge based mainly on absence of members of minority groups All cases at 110.

110.8. U. S. v. Bary, et al. (DC Colo.) In defense challenge to the array of grand jury, questionnaires were available, but defense was not permitted to examine them on ground that they were confidential. There is no court rule to this effect; Court stated that his predecessor had always so regarded them.
523.1. Johnson v. Mississippi. (USSC.) 17 yr. old Negro soldier inductee sentenced to death on charge of rape. Conviction upheld by Miss. S. Ct. Issue: systematic exclusion of Negroes from grand and petit juries in Harrison Cty., Miss. Cert. denied, 349 U. S. 946 (1955).

Jack Greenberg, Esq., 107 W. 43rd, NYC.

523.2. People v. White. (USSC Miss., #601, 1954 Term.) Def. convicted of rape and crime against nature. Calif. Dist. Ct. of App. affirmed (269 P. 2d 19); Calif. Sup. Ct. affirmed (43 C. 2d 740, 278 P. 2d 9). April 18, 1955: docketed in U.S.S.C. on petition for cert. Only issue raised: right to trial by impartial jury under 14th Amendment. This is the first time, as far as is known, that question of challenge to trial jury panel was as fully developed as here and where highest state court, after stating unequivocally that method of jury selection was unconstitutional "and could not be condoned", nevertheless affirmed conviction on ground that prejudice did not result.

William B. Esterman, Esq., 6331 Hollywood Blvd., and William B. Murrish, Esq., 1741 N. Ivar Ave., both of Hollywood, Calif.

525. Grand jury procedures

525.1. In re Murchison. (349 U. S. 133.) Contempt proceedings arising out of witnesses' conduct before grand jury. Same judge who had sat as one-man grand jury (permitted by Michigan law), before whom witnesses had testified, presided at contempt hearing wherein same witnesses were adjudged in contempt for conduct before said grand jury. Mich Sup. Ct. aff'd (340 Mich. 140, 65 N.W. 2d 396 and 340 Mich. 151, 65 N.W 2d 301). Certiorari granted. By divided court, reversed and remanded. Black, J., for majority, held: "it was a violation of due process for the 'judge-grand jury to try these petitioners' "; "fair trials are too important a part of our free society to let prosecuting judges be trial judges of the charges they prefer", distinguishing Sacher (343 U. S. 1, 72 S. Ct. 451) and others in which contempt occurred in open court rather than in grand jury hearing. Reed, Minton and Burton, JJ., dissent, because distinction between this case and Sacher is nebulous.

William L. Colden, Esq., Tobin Bldg., Detroit, Mich.

530. Police violence and coerced confessions—Fifth Amendment

530.1. U. S. ex rel. Caminetto v. Murphy, Warden. (CA 2, 222 F. 2d 698 (1955).) Writ of habeas corpus filed by prisoner serving life sentence for murder granted by Ct. of App. because Police Dept. guilty of "psychological brutality" in coercing confession from Def. after 27 hours' continual interrogation. Convicted in 1942 for driving getaway car of person who did actual shooting. During interrogation 2 women and a man brought in by police to face Def., who was not told they were detectives. Each falsely pretended to identify him as person seen sitting at wheel of auto at time of shooting.

Kaufman and Edelbaum, Esqs., 1440 Broadway, NYC.

540. Due process—Fifth Amendment

540.1. Marcello v. Bonds. (USSC 1954 Term.) (113 F. Supp. 22; 212 F. 2d 830; 349 U. S. 302.) Marcello entered U. S. lawfully as infant; 1938 convicted and 1 yr. sentence for violation Marihuana Tax Act. This did not become deportable offense until Walter-McCarran Act of 1952. Arrested 1952 as Att'y Gen'l McGranery issued press release saying deportee engaged in large-scale slot machine operation. Cert. granted Oct., 1954 (348 U. S. 805). Issues: procedural due process denied through prejudgment by Immigration Service and trial by newspaper; deportation hearing void for failure to comply with separation-of-functions requirement of Administrative Procedure Act (APA); deportation here offends ex post facto prohibition, which was not intended to be limited to criminal cases. Supreme Court (5-3) by Clark affirmed deportation order. Court holds: deportation proceedings are not subject to the provisions of the APA; that Congress has provided a specific procedure in the Immigration Act in lieu thereof; that such procedure meets all the requirements of due process. Further holds that fact that special inquiry officer who hears and determines is subject to control and supervision of Immigration Service does not render a hearing unfair or prejudicial. Further holds that publication in newspapers of petitioner's name in list of undesirable aliens was not alone evidence of prejudgment. Finally hold that under Galvan (347 U. S. 522) and Harisiades (342 U. S. 580), ex post facto clause of Constitution is not applicable to deportation and court will not depart from those precedents.

Jack Wasserman, Esq., Warner Bldg., Washington, D. C.

And see 290.

- 23 -

545. Due process—Actions against recanting witnesses

545.1. U. S. v. Natvig. (CA DC.) Def. charged with 9 counts of perjury based on recanting testimony before Federal Communications Commission in hearing re application of Lamb (270.2). Before and during trial 6 of 9 counts dropped; convicted on 3 counts for falsely denying she had told FBI and FCC agents in Sept. 1954 that she had been an Ohio Communist in 1930s and had known Lamb in that connection. Sentence: 8 mos. to 2 yrs. On appeal. Jean F. Dwyer, Esq., 503 F St. NW, Washington, D. C.
545.2.. Matusow v. U. S. (CA 5.) Conviction for criminal contempt of Court under Rule 42, Fedl. Rules, arising out of recanting testimony given in Jencks (240.3); sentence: 3 yrs. Appeal pending.

Stanley Faulkner, Esq, 9 E. 40th, NYC; Calamia and Chew, Esqs., Caples Bldg., El Paso, Texas.

545.3. U. S. v. Matusow. (SD NY.) Indictment on 6 counts of perjury arising out of recanting testimony in Flynn (110.11), (see Stein (110.12).) Motion pending to dismiss 1 count.

Stanley Faulkner, Esq., 9 E. 40th, NYC.

See "Harvey Matusow and the Role of the Prosecutors in U. S. v. Flynn", by David L. Weissman, XV Lawyers Guild Rev. No. 3 (Fall 1955).

550. Due Process—Right to acquittal/new trial based on perjured testimony, new facts

550.1. U. S. v. Zuker. (Immigration Service, Cleveland Office.) Def. arrested for deportation for political affiliations. Gov't used Lowell Watson as key witness. After Watson recanted testimony before FCC in Lamb (270.2), Gov't itself moved to withdraw his testimony here; motion granted March 17, 1955. Case pending.

William Corrigan, Esq., Williamson Bldg., Cleveland.

550.2. U. S. v. Bridges. (ND Cal. SD, Civ. #28876.) (See 326 U. S. 135, 346 U. S. 209.) Gov't filed complaint seeking denaturalization under 1940 statute on ground of fraud and illegal procurement, charging Def. falsely denied Communist Party membership and personally entertained views proscribed by statute at 1945 naturalization. Motions to dismiss based on res judicata and multiplicity of proceedings constituted deprivation of due process of law, denied; July 1955: After 1 month trial, Fedl. Judge Goodman held: Gov't failed to prove charge "by clear and convincing evidence", criticizing "the kind of witnesses it produced . . . after abortive efforts to prove the same issue in different proceedings and after the passage of many years".

Telford Taylor, Esq., 400 Madison Ave., NYC; Richard Gladstein and Norman Leonard, Esqs., 240 Montgomery St., San Francisco, Cal.

550.3. Salemi v. New York. (USSC, #261-1955 Term.) (309 N. Y. 208 by 4-3 vote affirmed conviction and denial of new trial.) Issues: Can first degree murder conviction be sustained: (1) where only witness who identified Def. as the killer was committed as insane immediately after jury's verdict; (2) where prosecution knew facts re this witness' mental health but did not disclose to defense; (3) where proof of dying declaration implicating Def. was adduced before jury but after verdict credible evidence produced that condition of slain man was such that he couldn't have made such declaration, and (4) that witness had not been with decedent when such declaration was made. (5) Is it denial of due process for ct., on motion for new trial, to conduct extended examination of body of deceased and question witnesses in absence of defense counsel. Petition for writ of certiorari filed with U.S.S.C. under 28 USC 1257 (3).

Osmond K. Fraenkel, Esq., 120 Broadway; Jacob Shientag, Esq., 67 Wall St.; Max Fruchtman, Esq., 1776 Broadway, all of NYC.

550.4. Illinois v. Miller. (Ill. Sup. Ct.) Def.-Negro marine veteran was arrested, charged with rape; jury at first trial deadlocked; judge declared the second a mistrial; Def. waived jury at third trial, found guilty; sentence: life. Issue: is Def. entitled to new trial when conviction is based on uncorroborated testimony of the woman victim who, after trial, is found to be suffering from type of mental illness which had existed for long time and would make her peculiarly subject to making false sexual charges. Trial Judge denied motion for new trial. On appeal.

Charles Liebman, Esq., for Ill. Divn., American Civil Liberties Union.

555. Confrontation of witnesses—Sixth Amendment

555.1. Simmons v. U. S. (75 S. Ct. 397.) (CA 7, 213 F. 2d 901.) Prosecution for Def.'s refusal to submit to induction in U. S. Armed Forces after classification as 1-A by Appeal Bd. On trial Pet. claimed he had not been afforded fair summary of FBI report, secured subpoena duces tecum requiring production of original report, which was quashed on Gov't's motion. Issue: whether failure of Justice Dept. to furnish Pet. with fair summary of adverse information in FBI investigation report deprived him of "hearing" provided by 50 U. S. C. App. sec. 456(j), and thereby invalidated 1-A classification. U.S.S.C. rev'd, Mar. 14, 1955, Clark, J.: a fair summary as contemplated by U. S. v. Nugent (346 U. S. 1, 1952) was not furnished. "The Congress, in providing for a hearing, did not intend for it to be conducted on the level of a game of blindman's buff." Black, Douglas, JJ., adhering to dissent in Nugent, joined in opinion and judgment. Reed, Minton, JJ. dissenting.

Hayden C. Covington, Esq., 124 Columbia Heights, Bklyn.

- 24 -

560. Indirect restrictions on right to counsel—Sixth Amendment

560.1. Re Gladstein. (DC Hawaii.) 1952: During trial in Fujimoto (110.2), Honolulu Dist. Ct. issued Order to Show Cause why Gladstein should not be disbarred for actions in Dennis (341 U. S. 494, and see contempt citations against attys). Attorney filed affidavit of bias and prejudice against Fedl. Judge who issued order; which he denied. CA 9 held: Fedl. judge prejudiced and matter to be heard by another Fedl. judge. Judge McLaughlin has disqualified himself; currently pending before Judge Wiig.

George R. Andersen, Esq., 240 Montgomery St., San Francisco; Bouslog and Symonds, Esqs., 63 Merchant St., Honolulu, T. H.

560.2. Re Bouslog. (Sup. Ct. of Terr. of Hawaii, #30441.) Bar Assn. of Hawaii instituted complaint against attorney charging that in Dec. 1952 and July 1953, while counsel in Fujimoto (110.2), she made a speech imputing to Trial Judge unfairness in conduct of Fujimoto case and impugning integrity of Fedl. Dist. Ct., and, after verdict therein, interviewed juror who was ill and filed affidavit without fully disclosing juror's condition. July 8, 1955 Sup. Ct. issued show cause order. Attorney argues: proper forum for disciplinary proceedings is court where alleged misconduct occurred; Bar Assn. had no power under Rules to make complaint when acts occured; laches; speech protected by 1st Amendment, contained no unjust criticism, contained nothing not said in Court, no prohibition against interviewing juror after verdict. Return due Oct. 19.

Myer C. Symonds, Esq., 63 Merchant St., Honolulu, T. H.

560.3. Re Braverman. (Md. Supreme Ct.) Disbarment petition recites oath taken by Braverman as attorney when admitted and fact of Smith Act conviction (103 F. Supp. 48; 198 F. 2d 679; cert. denied 344 U. S. 922). Grounds for disbarment not otherwise specified. Issues in hearing: whether allegations in petition constitute "Professional misconduct, malpractice, fraud, deceit, crime involving moral turpitude, conduct prejudicial to the administration of justice, or is a subversive person, as defined by the Subversive Activities Act of 1949", the grounds for disbarment in Maryland. On motion to dismiss, disbarment ordered by Sup. Bench, Balt., without opinion. Appeal pending.

Harold Buchman, Esq., 205 Tower Bldg., Baltimore. Md.

560.4. Cammer v. U. S. (U.S.S.C.) Cammer, as attorney for Ben Gold (240.4) had addressed questionnaire to government employees who comprised majority of grand jury which returned Gold indictment respecting the effect of loyalty-security programs upon their ability to act impartially in case involving official charges of Communism. Questionnaire sent on basis of direct precedent in Weinberg (Crim. #829-52, DC DC), in effort to make showing of bias in the particular case beyond mere fact of government employment. Def. convicted of violating 18 U.S.C. 401(2); $100 fine. CA DC affirmed May 5, 1955 (Fahy, J. diss.). Contentions: conduct not "misbehavior"; not in an "official transaction" within contempt statute; holding frustrates Def.'s right effectively to challenge gov't employees for bias. Petition for cert. to U.S.S.C. granted. Charles E. Ford, Esq., 416 Fifth St. NW, Washington, D. C.

And see 260, 420, 480.

570. Excessive bail/parole conditions—Eighth Amendment

570.1. Ohio v. Lumer. (Cleve. Muni. Ct.) Def. arrested for using false name on auto operator's license (misdemeanor; maximum penalty $500 and/or 6 mos.). Released on $500 bail. At arraignment Court set $50,000 bail. At hearing on habeas corpus writ, Common Pleas Court reduced to $1,500. When bond posted, second charge added: illegal possession of dope ($500 and/or 6 mos. under city ordinance). Def., ulcer patient, claims possession only of prescribed medicines. Additional $500 bond on 2d charge. Pleaded guilty; 10 days' suspended sentence; $200 fine—$100 suspended, on first count. Awaiting trial on second count.

On writ: Thelma C. Furry, Esq., 2d Natl. Bk. Bldg., Akron; Ohio Civil Liberties Union as amicus curiae, by Jack Day, Esq., Standard Bldg., Cleveland, Ohio; on trial: Stephen Young, Esq., Natl. City Bk. Bldg., Cleveland.

See Stein (110.12); bail question on appeal to CA 2.

570.2. U. S. v. Stein. (CA 2.) Def., arrested in California on charge of harboring Smith Act Def. Thompson, brought to SD NY for trial for conspiracy under Smith Act (110.12). Writ of habeas corpus attacking $75,000 bail set in harboring case denied. Appeal pending.

Reuben Terris, Esq., 150 Nassau, NYC.

See Braden (130.3).

See Scales (201.3).

570.3. Nukk, et al. v. Shaughnessy. (USSC Oct. Term 1954.) (See 125 F. Supp. 498, 75 S. Ct. 255, 342.) Application for order restraining Immigration Service from enforcing Orders of Supervision (based on Walter-McCarran Act, 8 USC 1252(d)) against non-citizens against whom final deportation orders have been issued. Orders require weekly reporting to Imm. Service; no traveling outside 50 mi. radius; discontinuation of Comm. Party membership; cessation of association with all persons known to be members or affiliates of Comm. Party. Argument in U.S.S.C.: Oct. 19 or 20.

Blanch Freedman and Gloria Agrin, Esqs., 220 Broadway, NYC.

580. Cruel and unusual punishment and treatment—Eighth Amendment

580.1. Ohio v. Hashmall. (160 O.S. 565, 117 N.E. 2d 606.) Def. convicted of using false name and address in application for certificate of title to auto, May 13, 1953. Ct. of App. affirmed conviction. Bail denied, Def. started serving 6-month-to-10-year term in Ohio Penitentiary May 18, 1953. Ohio Sup. Ct. cut sentence to 5 yrs. and found that "trial
- 25 -

court abused its discretion in ordering that the indeterminate sentences . . . on each count be served consecutively and not concurrently. The record discloses that the trial court probably did this because he was advised that the Def. was a Communist. However, a Communist is entitled to even-handed justice in our Courts". Cert. den., 348 U. S. 842. Def. paroled June, 1955; one of Defs. in Brandt (110.9) (164 O. S. 170; State ex rel. Wanamaker, Judge v. Miller, 164 O. S. 174, 176).

(Trial judge is suing Chief Justice of Ohio Sup. Ct. for saying he had abused his discretion. Ohio S. Ct. disqualified itself and substituted App. Ct. judges heard argument May 11, 1955; Ohio S. Ct. decision upheld.)

Thelma C. Furry, Esq., 2nd Nat'l Bldg., Akron; (the late Jack B. Dworken, Esq.); Charles R. Miller, Esq., Chester-12th Bldg., Cleveland, Ohio.

580.2. Minnesota ex rel. Horowitz v. Davis (Minn. S. Ct., #36546) and Wisconsin v. Horowitz, alias Brown (Milw. Cty. Munic. Ct.). Def., born Horowitz, had been Minn. organizer for Communist Party; 1953 moved to Wis., where changed name to Brown without applying to court, (under Wis. common law rule). Given Social Security number as Brown, lived and secured employment as Brown; purchased auto and secured registration of title under name Brown. 1954 returned to Minneapolis, maintaining new name Brown, securing new driver's license and registration of title in Minnesota as Brown. May, 1954, Brown arrested by Minneapolis police, charged with giving assumed name to secure driver's license, and to secure registration of title, (misdemeanors in Minnesota). Brown, without counsel, pleaded guilty: 90 days on each count to be served consecutively. While serving sentences, Wis. warrant issued charging felony: making false statements in application for registration of title (1-5 years and/or up to $5,000 fine). Warrant served when Def. due to be released, Oct. 1954. Wisconsin demanded Minnesota Gov. extradite Brown; so ordered, without hearing. Brown engaged counsel. Habeas corpus writ sued out for denial of due process for failure to hold extradition hearing. On appeal to Minn. S. Ct., denied.

Brown returned to Wis., July 1955. On arraignment, $7,500 bail set on ground Def. was a Communist. Habeas corpus writ sued out on issue of excessive bail to Circuit Ct. of Milwaukee Cty.; denied. Brown, released on $7,500 bail, now awaiting arraignment in Mun. Ct., Milwaukee Cty. Motions to dismiss on ground that no offense committed because Def. within his rights in changing his name, denied.

Kenneth J. Enkel, Esq., Bldrs. Exchange Bldg., Minneapolis; M. Michael Essin, Esq., 623 N. Second Ave., Milwaukee.

580.3. DeSilva v. TW A. (SD NY #99198.) Action for false arrest based on transportation of Pl. against her will from Ceylon to New York. Def. claims justification because of deportation order issued by Ceylon Government. In support of that defense it sought to inquire whether Pl. or her husband were members of Communist Party. Pl. having objected to these questions as irrelevant, Judge Dawson ruled that they should be answered. Thereupon Pl. claimed privilege against self-incrimination and Def. made motion to dismiss her complaint, which was denied by Judge Ryan late Sept., 1955.

Charles Recht, Esq., 10 E. 40th, and Osmond K. Fraenkel, Esq., 120 Broadway, both of NYC.

585. Extradition resulting in cruel and unusual punishment—8th Amendment

585.1. Pennsylvania ex rel. Brown v. Baldi, Supt. of Phila. Cty. Prison and State of Georgia, Intervenor. (Com. Pleas Phila. Cty. No. 2, March Term, 1952, #5042.) 1937 Brown pleaded guilty to murder charge in Georgia (see 378 Pa. at 518-9); escaped 3 times, lastly to Phila. where FBI arrested him on charge of illegal flight from imprisonment in Ga. Apr., 1952: Gov. Fine issued warrant for rendition to Ga. Brown petitioned for habeas corpus writ, alleging he had been subjected to cruel and unusual punishment in Ga., and would be if returned. Judge Levinthal made Report, after judicial hearings in which Ga. Asst. Dir. of Bd. of Corrections appeared as witness, that he was satisfied that Brown's allegations were true and, if returned to custody in Ga., he was likely again to be subjected to such punishment (detailed in dissent, Musmanno, J., 378 Pa. at 514-517). June, 1954 Pa. S. Ct. aff'd rendition order (378 Pa. 504). Gov. Fine denied App.'s petition brought under Uniform Extradition Law, sec. 21. Oct., 1954: petition for cert. to U.S.S.C. filed; Mar., 1955: denied. Apr., 1955: App. filed petition with Gov. Leader to recall 1952 Extradition Warrant. 7 Pa. Negro legislators and counsel presented case to Gov., arguing that: (1) modern version of Fugitive Slave Law was involved; (2) while U.S. Const., Art. IV gave States right to interstate rendition in broad terms, 8th Amdt. clarified and limited operation of Art. IV; (3) Uniform Extradition Law intended to protect fugitives by giving Gov. right to investigate before issuing warrant (Sec. 4) whether he "ought to be surrendered"; by making it mandatory to inform Def. of right to petition for habeas corpus (Sec. 10); by giving Gov. right to recall warrant even after adverse Ct. decision (sec. 21); (4) since Ga. as well as Pa. passed this law, Ga. can't complain of its use. Aug. 9, 1955: Gov. Leader granted petition recalling extradition warrant. Aug. 11: Judge Flood formally discharged Brown from custody.

David Levinson, Esq., 1813 N. 33rd, Phila. (Thurgood Marshall, Esq., N.A.A.C.P., on petition for cert., 107 W. 43rd, NYC).

585.2. In re Willie Reid. (Felony Court, Manhattan.) 1950: Reid, without counsel, allegedly pleaded guilty to assault with intent to commit murder; sentence: 15 yrs. on Fla. chain gang. Reid escaped to NY, where he was arrested. Hearing on petition for writ of habeas corpus in Sup. Ct., NY County before Judge Dineen. Testimony taken from Def. re his treatment in Florida. Petition denied. Feb., 23, 1955: Gov. Harriman signed rendition papers, without hearing on issue of cruel and unusual punishment on Fla. chain gang. Application to Gov. to lift warrant of rendition pending.

Lewis Flagg, Esq., 1 Kingston Ave., Brooklyn, for N.A.A.C.P.

- 26 -

III. EQUAL PROTECTION OF THE LAWS—CIVIL RIGHTS—14th AMENDMENT

A. IN ELECTIONS

601.1. McDonald v. Key, et al. (U.S.S.C) (125 F. Supp. 775; CA 10, #5048 not yet reported.) Suit by Negro candidate for damages because election officials placed the word "Negro" after his name on ballot, as required by Oklahoma statute. Dist. Ct. rejected Pl.'s claim; July 21, 1955, CA 10 reversed holding statute unconstitutional as discrimination by the state in violation of 14th Amdt. Def.-State of Okla. applied for cert. to U.S.S.C.

A. B. McDonald, pro se, 2725 N.E. 16th St., Oklahoma City, Okla.

B. IN EDUCATION
610. Public elementary and high schools

610.1. Brown v. Bd. of Education. (Topeka, Kan.) (98 F. Supp. 797.) Class action by minor Negro Pls. to obtain admission to public schools on non-segregated basis. U.S.S.C., per C. J. Warren for unanimous Ct., held (May, 1954, 347 U.S. 483): Where state has undertaken to provide an education, it is a right which must be made available to all on equal terms. "Separate but equal" doctrine has no place here because separate educational facilities are inherently unequal, and deprive Pls. of equal protection guaranteed by 14th Amdt. U.S.S.C., per C. J. Warren for unanimous Ct., held (May, 1955, 349 U. S. 294): All fed'l, state and local law requiring/permitting racial discrimination in public education is unconstitutional. School authorities have primary responsibility for solving this problem. Inferior cts., on remand, directed to retain jurisdiction of cases during transition to non-discriminatory school systems, and to require school authorities to make prompt and reasonable start toward full compliance.

Spottswood W. Robinson, III, Esq., Richmond, Va.; Charles S. Scott, Esq., Robert L. Carter, Esq., and Thurgood Marshall, Esq., N.A.A.C.P., 107 W. 43rd, NYC.

610.2. Davis v. County School Bd. (Prince Edward County, Va.) (103 F. Supp. 337; 347 U.S. 483; 75 S. Ct. 753.) Companion case to Brown (610.1). On remand, 3-judge court entered decree July 18, 1955: 1) setting aside 1952 decree in part; 2) ruling Va. Const. of 1902, sec. 140 and Va. Code of 1950, Sec. 22-221 (requiring segregated schools) not be enforced by Defs. because in violation of Equal Protection Clause of 14th Amdt.; 3) enjoining Defs. from refusing on account of race or color to admit any qualified child to any school in their jurisdiction after Defs. have made "necessary arrangements" for such a non-discriminatory admission "with all deliberate speed" but Ct.'s refusal to require such rearrangement by Sept., 1955 (as requested by Pls.) "is not inconsistent with the public interest or with the decision of the Supreme Court"; 4) retaining jurisdiction for further action, if necessary.

Spottswood W. Robinson, III, and Oliver W. Hill, Esqs., Richmond, Va.; Thurgood Marshall, Esq., N.A.A.C.P., 107 W. 43rd, NYC.

610.3. Briggs v. Elliott. (Clarendon County, S.C.) (98 F. Supp. 529, 342 U.S. 350; 103 F. Supp. 920; 347 U.S. 483, 75 S. Ct. 753.) Companion case to Brown (610.1) and Davis (610.2). On remand, 3-judge court entered decree July 15, 1955, similar to decree in Davis except that date of Sept., 1955, was not mentioned.

Spottswood W. Robinson, III, and Oliver W. Hill, Esqs., Richmond, Va.; Harold R. Boulware, Esq., Thurgood Marshall, Esq., N.A.A.C.P., 107 W. 43rd, NYC.

610.4. Clenions v. Bd. of Ed. of Hillsboro, Ohio. (CA 6, #12494.) Dist. Ct. refused to enjoin Defs. from resegregating Pl.-Negro children into all-Negro public school. Issue: did Dist. Ct. in so ruling abuse its discretion. Brief filed April 27, 1955.

James H. McGee, Esq., 1020 W. 5th St., and Russell L. Carter, Esq., 949 Knott Bldg. of Dayton, Ohio; Constance Baker Motley and Thurgood Marshall, Esqs., N.A.A.C.P., 107 W. 43rd, NYC.

610.5. Anderson, et al. v. Bd. of Ed. of Englewood, N. J. (before N. J. Commission against Discrimination). Complaint: Local school authorities are maintaining segregated schools in violation of N.J.S.A. 18:25-1 and fedl. law. Commr. of Education held May, 1955: No duty under N.J. anti-discrimination law to integrate school population. But Def.-Board had discriminated against Negroes in violation of law in maintaining separate Jr. High in district and in drawing new attendance line between districts; Bd. ordered to redraw line; has complied.

Thomas P. Cook, Dept. Atty. Genl., State House Annex, Trenton; Leonard Williams, Esq., 143 E. State St., Trenton; Constance B. Motley and Jack Greenberg, Esqs., N.A.A.C.P., 107 W. 43rd, NYC.

610.6. Romero, et al. v. Weakley, et al. (CA 9.) (131 F. Supp. 818.) Complaint brought on behalf of Mexican minors, as a class action alleging that Def.-Bd. of Supervisors members, "under color of regulations, custom, or usage", practice discrimination and segregation in public schools in Imperial County. Held, by Fedl. Judge Peirson M. Hall, May, 1955: because Pls. are not attacking constitutionality of any Calif. statute or administrative regulation, and have not charged or shown that they can get no relief in Calif. state courts, this case does not follow Brown (610.1). Ordered stayed, but bill retained to give Pls. opportunity to secure determination of questions in state courts. Appeal argued in CA 9; decision awaited.

Ralph C. Estrada, Esq., 133 W. Congress, Tucson, Ariz.; A. L. Wirin, Esq., 257 S. Spring St., and Marshall Ross, Esq., 5877 W. Jefferson Blvd., both of Los Angeles. Amicus brief filed by S. Calif. A.C.L.U., Hugh R. Manes, Esq.,; Japanese American Citizens League, Frank F. Chuman, Esq.; Greater L.A. C.I.O. Council, Fred Okrand, Esq.; American Jewish Committee, Harry S. Scheinman, Esq.

610.7. Burleigh, et al. v. Weakley, et al. (CA 9.) (131 F. Supp. 818.) Complaint brought on behalf of Negro minors similar to Romero (610.6). Issues and decision similar to Romero, companion cases on appeal.

Loren Miller, Esq., 542 S. Broadway, Los Angeles; Franklin H. Williams, Esq., 690 Market, San Francisco; Richard W. Petherbridge, Esq., 117 N. 5th, El Centro; Charles B. Johnson, Esq., 18 N. Fair Oaks, Pasadena, and Byron F. Lindsley, Esq., Tr. & Sav. Bldg., San Diego.

610.8. Hall, et al. v. St. Helena Parish School Bd., et al. (ED La., Bat. Rge. Div., CA #1068.) Suit filed in 1952 for admission of Pl.-Negro students to Def. public schools.
- 27 -

Def.'s pleadings due Sept. 12, 1955.

A. P. Tureaud and Robert L. Carter, Esqs., 1821 Orleans Ave., New Orleans, La.; Thurgood Marshall, Esq., N.A.A.C.P., 107 W. 43rd, NYC.

610.9. Bush, Jr., et al. v. Orleans Parish School Bd., et al. (ED La., CA #3630.) Amended suit seeking temporary restraining order and preliminary injunction to prevent Defs. from enforcing 2 statutes passed 1954 after decision in Brown (610.1). Issues: constitutionality of Act 555, which directs State Bd. of Educ. to withhold approval (and therefore funds) from any school admitting Negro and white students; and of Act 556, authorizing parish school sup'ts to assign children to public schools. Motion for continuance till Nov. 14 argued.

A. P. Tureaud and Robert L. Carter, Esqs., 1821 Orleans Ave., New Orleans, La.; Thurgood Marshall, Esq., N.A.A.C.P., 107 W 43rd, NYC.

610.10. Matthews v. Bearden School Superintendent. (WD Ark., El Dor. Div.) Injunction suit filed 1952 by Negro-Pls. to force equalization of facilities; amended, after decisions in Brown (610.1), to require immediate integration. Oct. 4, 1955: Fedl. Judge Miller ordered integration by Fall 1956 at latest.
610.11. Steiner v. Simmons. (Dela. S. Ct.) S. Ct., at 111 A. 2nd 574, held that Brown (610.1) nullifies Dela. Constitution and statutes requiring separate schools for Negroes and whites, but it is not necessary to desegregate schools until U.S.S.C. enters order in Brown.

Louis L. Redding, Esq., 923 Market St., Wilmington, Dela. Amicus brief field by American Civil Liberties Union, William Prickett, Esq.

610.12. Covington, et al. v. Edwards, Supt. of Schools of Montgomery Co., et al. (MD N. Caro., Rockingham Div., CA #323.) Class action seeking equitable relief based on failure to integrate, filed after decisions in Brown (610.1) and 3-judge court decisions in Davis (610.2) and Briggs (610.3). Defs.' answer just filed; 3-judge fedl. ct. requested.

C. O. Pearson, Esq., 203½ E. Chapel Hill St., Durham, N. C.; J. Kenneth Lee, P.O. Box 645; George A. Lawson, 914 Gorrell St., and Major S. High, 914 Gorrell St., Esqs., all of Greensboro, N. C.

610.13. Dobbins v. Virginia. (Va. Ct. of App.) Conviction of group of Negro parents for violating state compulsory school attendance law when they refused to send children to inferior, segregated school. Feb., 1955: oral argument before Va. Ct. of App.; decision awaited.
610.50. Matlock v. Bd. of Cty. Commrs. (Okla. S. Ct.) Issue: legality of proceedings for voting bonds for improvement of separate schools; unconstitutionality of statutes providing for such proceedings under due process and equal protection clauses of 5th and 14th Amdts. Held, at 281 P. 2d 169: since statutes related only to acquisition and maintenance of school property, and not to its use, not within Brown (610.1) decision; proceedings upheld.

Cecil E. Robertson, Esq., 228½ N. 2nd, Muskogee, Okla.

610.51. Bd. of Supervisors of Hanover County v. Bd. of Educ. of Hanover County. (Va. S. Ct. of App.) Issue: can bonds authorized by voters prior to U.S.S.C. decision in Brown (610.1) now be sold to raise money to build integrated schools? Cir. Judge Bazile held: $1,000,000 in bonds approved in referendum Oct., 1953, cannot now be used because voters authorized building segregated schools. School bd. voted to appeal decision on ground voters in 1953 knew of Brown case and were authorizing building of schools "in such manner school board might deem proper." County Bd. of Super. voted to ask school bd. to withdraw notice of appeal.
610.52. Bd. of Public Instruction of Manatee County v. State. (Fla. S. Ct.) (75 So. 2d 832.) Facts and issues similar to Bd. of Supervisors (610.51). Decided Nov. 16, 1954 (see 23 LW 2245-6).
610.53. McKinney, et al. v. Blankenship, et al. (Texas S. Ct.) Texas Citizens Council requested Dist. Ct. Judge in Howard County, Tex. to prevent Big Spring School Dist. from integrating the public schools and to block use of state funds by school dists. which do not segregate (under Tex. Gilmer-Aiken law providing that state aid funds be paid on a separate white-Negro school basis). Aug. 26, 1955: Judge Sullivan held: school boards may desegregate immediately and still collect state funds. Appeal to Tex. Sup. Ct. set for Sept. 16.

Guilford L. Jones, Esq. (for Defs.), Box 668, Big Spring, Tex.

620. Colleges and universities

620.1. Florida ex rel. Hawkins v. Bd. of Control of Fla. (Fla. S. Ct.) Issue: right of Negro student to enter Florida law school. (53 S. 2nd 116, cert. den. for want of final judgment, 342 U.S. 877 (1951); 60 S. 2nd 162.) 347 U.S. 971 (1954) per curiam: cert. granted; judgment vacated; case remanded for consideration in the light of Brown (610.1). Now pending before Fla. S. Ct.

Robert Carter and Thurgood Marshall, Esqs., N.A.A.C.P., 107 W. 43rd St., NYC.

620.2. Tureaud v. Bd. of Supervisors of La. State Univ. and Agric. and Mech. Coll., et al. (CA 5.) Application for injunction to restrain Defs. from refusing to admit Pl.-Negro student to La. State Univ. under-graduate program. Def. previously had been ordered to admit Negroes to graduate and law schools (116 F. Supp. 248 (CA 5), 207 F. 2d 807, 1953; 346 U.S. 881, 1954); 347 U.S. 971: Judgment vacated and case remanded for consideration in light of Brown (610.1) "and conditions that now prevail." Fed'l Judge Skelly again ordered Pl. admitted; Aug. 23, 1955: CA 5 upheld ruling. Def. will ask rehearing.

Alexander P. Tureaud, Esq., 1821 Orleans Ave., New Orleans, La.; Ulysses S. Tate, Esq., 171 Jackson St., Dallas, Tex.; Robert L. Carter and Thurgood Marshall, Esqs., N.A.A.C.P., 107 W. 43 St., NYC.

620.3. Williams et al. v. Prather, et al. (DC La.) Suit for admission of Negro student to Northwestern State College, Natchitoches, La. Pl. asked for convening of 3-judge court, following decision in Tureaud (620.2). Apr. 22, 1955: Chief Judge of CA 5 refused to convene such court on ground it was not necessary in view of decision in Brown (610.1).

A. P. Tureaud, Esq., 1821 Orleans Ave., New Orleans, La.; U. Simpson Tate, Esq., 1718 Jackson St., Dallas, Texas; Robert L. Carter and Thurgood Marshall, Esqs., N.A.A.C.P., 107 W. 43rd, NYC.

- 28 -

620.4. White v. Smith, et al. officers of Bd. of Regents of U. of Texas. (D.C. Tex., Civ. #1616.) Suit filed by Pl.-Negro student who had been refused permission to enroll as undergraduate in Tex. Western College because of race, seeking injunction. Issue: constitutionality of Tex. stats. requiring segregation in system of schools operated as U. of Tex. system. (Regents ordered this college opened to Negroes Sept., 1955 and to main Univ. Sept., 1956, when selective admission of all freshmen begins.) Fed'l Judge Thomason held: Pl. may enter this branch of U. of Texas; decision limited to this Pl.

U. Simpson Tate, Esq., 1718 Jackson St., Dallas, Tex.; Robert L. Carter and Thurgood Marshall, Esqs., N.A.A.C.P., 107 W. 43rd, NYC.

620.5. Atkins v. Mathews, Pres., N. Texas State College. (ED Tex.) Suit filed Aug. 9, 1955, attacking Tex. segregation laws generally and specifically attacking policy of college Bd. of Regents which excludes Negro students other than those working on doctoral degrees. Sept. 2: hearing on order to show cause.
620.6. Whitmore, et al. v. Stilwell, et al. (CA 5 #15473.) Refusal to admit Negro student to Texarkana Junior College. Case started in May, 1949. Dist. Ct. then dismissed complaint on ground Pl. had not exhausted administrative remedies. CA 5 reversed. Oct., 1954: Dist. Ct. dismissed case for want of equity. Briefs field in CA 5 Apr. 20, 1955.

John T. Raffaelli, Esq., 817 Texarkana Natl. Bk. Bldg., Texarkana, Tex.; U. S. Tate, Esq., 1718 Jackson St., Dallas, Tex.; Robert L. Carter, Thurgood Marshall, Esqs., N.A.A.C.P., 107 W. 43rd, NYC.

620.7. Lucy, et al. v. Adams, et al. (U.S.S.C.) July 1, 1955: Judge Hobart Grooms ordered Def. Univ. of Ala. to admit 2 Negro women students it had refused admittance 3 yrs. before because of race. Held: Ct. bound by Brown (610.1) and this decision to apply to all Negroes generally, as a class action. Univ. motion for new trial overruled Aug. 26, 1955; Sept. 6, Ct. entered order suspending and staying injunction for 4 months pending Def.'s appeal to CA 5 upon execution of $4,000 bond. CA 5 denied Pl.'s motion to vacate stay of injunction; Oct. 10: U.S.S.C., per curiam, reinstated injunction.

Arthur D. Shore, Esq., 1630 4 Ave. N., Birmingham, Ala.; Constance Baker Motley, Esq., N.A.A.C.P., 107 W. 43rd, NYC.

620.8. Booker, et al. v. State of Tennessee Board of Education, et al. (WD Term, CA #2656.) Hearing set Oct. 17, 1955, on suit field by 5 Negro students seeking admission to Memphis State College.

Z. Alexander Looby, Esq., 419 4th Ave. N, Nashville; J. F. Estes, Esq., 145 Beale, H. T. Lockard, Esq., 322½ Beale, B. L. Hooks, Esq., 362 Beale, and A. M. Willis, Jr., Esq., 336 Vance Ave., all of Memphis, Tenn.; and Thurgood Marshall, Esq., N.A.A.C.P., 107 W. 43rd, NYC.

620.9. Grant, et al. v. Taylor, Supt., et al. (WD Okla., CA #6404.) Class action filed in 1954 by 3 Negro men seeking admission to E1 Reno College. Held in abeyance pending decision in Brown (610.1). July 1, 1955: Argument on Def. Bd. of Educ. motion to dismiss as moot because Okla. Constitution now favors integration and Bd. voted June 21 to open college to all students. 3-judge court held Aug. 22, 1955: action dismissed, costs assessed to Defs.

Ada Lois Fisher, Esq., 1734 NE 7th St., Oklahoma City, Okla., and U. S. Tate, Esq., 1718 Jackson St., Dallas, Tex.

620.10. Troullier v. Oklahoma College for Women. (ED Okla.) Facts and issues similar to Grant (620.9). July 27, 1955: 3-judge court held: action moot, costs assessed to Defs. U. S. Tate, Esq., 1718 Jackson St., Dallas, Tex.
C. IN HOUSING
630. Public

630.1. Detroit Housing Commission v. Lewis. (CA 6, #12305.) Suit brought in June, 1950, on behalf of a number of Negro families who had been refused admission to certain public housing projects which Pl. maintained for white families only. June, 1954, Judge Lederle enjoined racial segregation in public housing projects in Detroit. Pl.-Comm. appealed order to CA 6; argued April 21, 1955; decision pending.

Paul T. Dwyer, Vance G. Ingalls and Helen W. Miller, Corporation Counsel, 301 City Hall, Detroit, and Mrs. Constance B. Motley, Esq., N.A.A.C.P., 107 W. 43 St., NYC.

630.2. Heyward v. Savannah Housing Authority, et al. (DC Ga.) Suit to enjoin allocation of Fed'l funds and technical assistance to construction of segregated public housing development in Savannah. Def. answer due.

A. T. Walden, Esq., 200 Walden Bldg., Atlanta, Ga.; Frank D. Reeves, Esq., 2000 Ninth Ave. NW, Wash., D.C.; Constance B. Motley and Thurgood Marshall, Esqs., N.A.A.C.P., 107 W. 43rd, NYC.

630.3. Ward et al. v. Columbus Metropolitan Housing Authority, et al. (SD Ohio.) Facts and issues similar to Lewis (630.1). June 10, 1955: final hearings held on Def.'s motion to dismiss and Pl.'s motion for summary judgment; decision awaited.

John L. Francis, Esq., 120 Hamilton Ave., Columbus, Ohio; Constance B. Motley, Esq., N.A.A.C.P., 107 W. 43rd, NYC.

630.4. Watts v. Housing Authority of Birmingham District. (DC Ala.) Facts and issues similar to Lewis (630.1). Briefs to be filed soon.

Peter A. Hall, Esq., 1630 4th Ave., Birmingham, Ala.; Thurgood Marshall and Constance Baker Motley, Esqs., N.A.A.C.P., 107 W. 43rd, NYC.

640. Private

640.1. Johnson et al. v. Levitt & Sons, Inc.; Mason et al. of FHA; Higley, et al. of Veterans Adm. (CA 3.) (131 F. Supp. 114, ED Pa., 1955.) Pls. attempted to purchase home in Levittown, Pa.; refused. Sought injunction and declaratory judgment to restrain FHA and VA Defs. from insuring Levittown mortgages because of discrimination against Negro buyers. (See 12 USC 1702, 38 USC 664 ff.) Issues: do Gov't agencies have power to end discrimination in Levittown by refusing to guarantee mortgages unless Def. Levitt ends discrimination; is failure to exercise this power tantamount to violation of Pl.'s rights; are regulation and control exercised by Fed'l agencies in Levittown so extensive, and relationship between Fed'l agencies and Levitt so intimate, and Fed'l aid so
- 29 -

crucial to development of Levittown that actions of Levitt must be deemed to be acts of Fed'l agencies. Trial Ct. ruled: mere fact that Fed'l agencies guaranteed to banks that sums lent will be repaid, and prescribe conditions (architecture and development plans and amount of mortgages) does not make Levitt & Sons a branch of US Gov't nor the Gov't the builder or developer. Def. Levitt contends that jurisdictional amount of $3,000 not met. On appeal.

Walter A. Gay, Jr., 532 N. 58th St., Phila.; David E. Pinsky, Esq., 1445 Land Title Bldg, Phila.; Constance Baker Motley, Esq., N.A.A.C.P., 107 W. 43 St., NYC.

640.2. Krumpek v. Bd. of Revision of Summit County, Ohio. (Ohio Bd. of Tax App.) Pl-home owner in Akron appealed the tax valuation set by local assessment bd. on the ground, inter alia, that the recent movement of Negroes into neighborhood depreciated property values. Apr. 25, 1955: Bd. of Tax App. rejected this claim. "Valuation of property is based upon many factors. . . . But in no case is it based upon the race, creed or color of the neighbors."
D. IN EMPLOYMENT

650.1. Syres and Warrick and Local Union No. 254, Oil Workers Intl. Union v. Oil Workers Intl. Union, Local #23, and Gulf Oil Corp. (CA 5, #15286.) Appts. are Negro employees of Gulf Oil and all-Negro local of O.W.I. Union suing under 28 U.S.C. 1331 for injunctive relief and damages and/or declaratory judgment for failure of Resp. all-white Union local to represent appts. without discrimination because of race. The 2 locals were jointly certified by N.L.R.B. as exclusive bargaining representatives for all members of both locals. Issue: do Fed'l courts have jurisdiction to protect Negro employees from loss of promotional rights, solely because of race and color, under compulsion of union contract executed pursuant to NLRB certification as exclusive bargaining representative? Briefs filed, argued April 19, 1955; decision awaited.

Roberson L. King, Esq., 618 Prairie Ave., Houston, Tex. Oil Workers Int'l Union appeared as amicus curiae and/or a party in interest on behalf of Apps. by Lindsay P. Walden and William E. Rentfro, Esqs., 1840 Calif. St., Denver, Colo.

650.2. Complaint against Esso Standard Oil Co., Ind. Int'l Workers Assn.; Cities Service Refining Corp., Metal Trades Councils; Local 969, Intl. Bro. of Teamsters; Carbide & Chem. Co.; Local 374, Intl. Union of Operating Engineers, AFI; Lion Oil Co. and Oil Workers Intl. Union, CIO (of La., Tex. and Ark.) (Before sub-comm. of President's Comm. on Government Contracts.) Complaint charges discrimination by Def. companies and unions against Negro employees in terms of hiring, upgrading, wage scales, seniority, apprentice training and all other respects material to job security and advancement. Complainants urge Committee to evolve a formula for entire oil industry to eliminate discrimination against Negroes, as well as redress specific wrongs described in complaint. Thereafter, individual complaints filed with Natl. Labor Relations Bd. regional offices to exhaust administrative remedies; preliminary hearings being conducted by NLRB. Several employer-Defs. have attempted to make offers to correct abuses, have posted notices, etc.

Robert L. Carter and Thurgood Marshall, Esqs., N.A.A.C.P., 107 W. 43 St., NYC.

E. IN PUBLIC ACCOMMODATIONS
660. Recreational facilities

660.1. Dist. of Col. v. Central Amusement Co., Inc. (D.C. #676655.) Information filed by Bd. of Commissioners charging Def. proprietor of bowling alleys with refusal to admit several persons to bowl on account of race or color, contrary to Act of Corporation of City of Washington (1869, 1870 Acts). See D. C. v. Thompson Co., Inc., 346 U. S. 100, 73 S. Ct. 1007 (1953). Sept. 29, 1955: Municipal Judge Malloy denied motion to dismiss, upheld 1869 ordinance.

Vernon E. West, Esq., D. C. Corporation Counsel, District Bldg., Washington, D. C.

660.2. Dawson, et al. v. Mayor and City Council of Baltimore (CA 4, #6903.) and Lonesome, et al. v. Maxwell and Commrs. of Forests and Parks of Maryland, et al. (CA 4, #6904), (U.S.S.C.) (220 F. 2d 386.) Pls. brought suit to obtain declaratory judgments and injunctive relief against enforcement of racial segregation on Baltimore city-owned public beach and beaches at State Park. Dist. Ct. dismissed action. March 3, 1955, by unanimous decision, CA 4 held: "separate but equal" facilities in public parks or playgrounds violate 14th Amdt. Brown (610.1) decision destroys basis for Durkee v. Murphy (181 Md. 259) and Boyer v. Garrett (183 F. 2nd 582). Balt. city solicitor and Md. Atty. Genl., in petition for cert., asked U.S.S.C. to overrule CA 4 and to establish "guideposts" so public officials will know whether Brown (610.1) decision extends into areas other than education. Pls. filed motion Sept. 29 to dismiss or affirm.

Linwood Koger, Jr., Esq., 1607 W. North Ave., and Tucker R. Dearing, Esq., 716 N. Gay, both of Baltimore, Md.; Robert L. Carter and Thurgood Marshall, Esqs., N.A.A.C.P., 107 W 43rd, NYC.

660.3. Fletcher v. Coney Island Inc. (Ohio S. Ct., #34569.) Cincinnati Common Pleas Ct. ruled that Negro Pl. was entitled to injunction restraining proprietors of public amusement park from denying her admission because of race or color on basis of Ohio Civil Rights Act. App. Ct. reversed, holding that equity should not use injunctions to enforce purely personal rights having no relation to property rights. Where Ohio Civil Rights Act provides only civil and criminal remedies for violations, these remedies are exclusive. (But cf. Gillespie v. Lake Shore Golf Club, Inc., 91 NE 2d 290, which arose under same Ohio statute.) On appeal to Ohio S. Ct.

Webster W. Posey and Michel M. Turpeau, Esqs., 308 W. 5th St., Cincinnati, and Robert L. Carter, Esq., N.A.A.C.P., 107 W 43rd, NYC.

660.4. Tate, et al. v. Dept. of Conservation and Development. (ED Va., Norfolk Div., CA #1295.) Pls., denied admission to recreational facilities at Seashore State Park, Va., solely because of race, brought class action for declaratory judgment and injunction against Def.-Dep't of state gov't, which established, operated and maintained the Park. July 1955: Dist. Ct. issued permanent injunction restraining Def., or any future lessee, from discriminating, directly or indirectly, re use of park facilities.

Victor J. Ashe, Esq., 1134 Church St.; J. Hugo Madison, Esq., 1017 Church St., both of Norfolk, Va., and James A. Overton, Esq., 801 High St., Portsmouth, Va.

- 30 -

660.5. Byars, et al. v. White, Mayor of San Antonio, et al. (DC Tex., Civ. #2109.) March 8, 1955, suit filed for injunction restraining Defs. from refusing Negro-Pls. and others the use of city owned and operated swimming pool. Trial date not yet set.

U. Simpson Tate, Esq., 1718 Jackson St., Dallas, Texas, and Robert L. Carter and Thurgood Marshall, Esqs., N.A.A.C.P., 107 W. 43rd, NYC.

660.6. Castle Hill Beach Club v. Arbury. (N. Y. State Sup. Ct., N. Y. L. Jour. 6/27/55.) A Negro complainant charged that the Pl.-Club refused her a season locker solely because of race. State Commission Against Discrimination, unable to adjust by consultation, held public hearing and thereafter issued "cease and desist" order. Pl. petitioned State Sup. Ct. to annul S.C.A.D. order; S.C.A.D. cross-petitioned for enforcement. June 1955, Justice Frank held: record overwhelmingly supports charge of discrimination solely because of race; judicial review here limited as with any administrative agency's finding; pool is place of public accommodation and received corporation certificate as such, not as private membership corp.; mandate issued compelling compliance with S.C.A.D. order. Henry Spitz, Esq., general counsel, State Commission Against Discrimination, 30 E. 37th, NYC.
660.7. Charlotte Park and Recreation Comm., et al. v. Barringer, et al. (N. Car. S. Ct.) Cross-appeals filed by parties re use of public golf course. Trial court ruled: 1) Comm. could not legally exclude Negroes; 2) upheld deed provisions covering the grants of land and providing that land would revert to grantors if Negroes used the park. Argued before No. Car. S. Ct. Apr. 21, 1955.

Spottswood W. Robinson, III, Esq., Richmond, Va.

660.8. Crutcher v. Hoyes. (Mid. Dist. Tenn., #.....) Fedl. Judge Davies ruled in March, 1954 (108 F. Supp. 582) that Negroes must be permitted to use Shelby Park Golf Course 2 days a week until Cumberland Golf Course for Negroes was completed. City attorneys filed for dismissal of order upon completion of Cumberland, claiming facilities now equal. Negro golfers argue that Brown rule (610.1) applies here. Case opened to determine whether new course is comparable to the other courses for whites and whether relief accorded complies with constitutional mandate.

Z. Alexander Looby and Avon Williams, Esqs., 419 4th Ave. N, Nashville, Tenn.

660.9. Holmes v. City of Atlanta. (U.S.S.C.) Dist. Ct. outlawed exclusion of Negroes from municipal golf course, permitted exclusive use by Negroes on certain days, whites on others. June 17, 1955: CA 5 affirmed: judgment accorded Pls. all they sought in their complaint. Sept. 13: petition for writ of certiorari filed in U.S.S.C.
660.10. Harvey v. Morgan. (Tex. Ct. Civ. App.) Issue: constitiutionality of Texas statute prohibiting Negro and white boxing exhibitions. Held, at 272 S.W. 2d 621: statute violates equal protection clause of 14th Amdt.; statutory classification based on color constitutes unconstitutional discrimination.

Grace & Maverick, 709 Maverick Bldg.; Carlos Cadena, Lieck & Lieck, Frost Bank Bldg.; Albert A. Pena, Jr., Pena Bldg.; Harry M. Bellinger, 608 East Commerce St., Esqs., all of San Antonio, Texas.

660.11. Odom, et al. v. Berin dba Steak Bar, et al. (Denver Superior Ct., CA 5-1416.) Action for damages against Def.-restaurant, which serves individuals of all races, but refused to serve Pls.—white woman and Negro man—because they are a "mixed couple". Colorado Civil Rights Stat. (Colo. Rev. Stat. 1953, 25-1-1) covers eating houses, provides for criminal action or civil liabilities from $50 to $500.

Samuel D. Menin and Eugene Deikman, Esqs., 615 14th St., Denver.

670. Transportation

670.1. Flemming v. S. Carolina Electric and Gas Co. (CA 4.) (128 F. Supp. 469.) Suit by Negro woman passenger forced by bus driver for Def.-intrastate bus co. to change her seat in accordance with S. Car. segregation law. Issues: violation of equal protection clause, damages under Fedl. Civil Rights law because driver was acting "under color of law". Dist. Ct. dismissed; CA 4 (July 1955) unanimously reversed, holding: "separate but equal" doctrine, repudiated by U.S.S.C. in Brown (610.1), also unconstitutional here. Since S. Car. law makes bus driver a police officer, he acted "under color of law"; case remanded to Dist. Ct. to determine amount of damages. Philip Wittenberg, Esq., Barringer Bldg., Columbia, So. Carolina; Thurgood Marshall and Robert L. Carter, Esqs., N.A.A.C.P., 107 W. 43rd, NYC.
670.2. Virginia v. Ritter (Richmond Police Ct.) re Va. Transit Co. Def.-Negro bus passenger charged with refusing to move to seat designated by local bus driver. Fined: $10. Appeal to Hustings Ct. heard Sept. 21, 1955.

Hill, Martin and Robinson, Esqs., Richmond, Va.

670.3. Keys v. Carolina Bus Co. (Interstate Commerce Commission.) Negro passenger brought action after segregation on interstate bus. Trial examiner filed adverse decision. July 14: oral argument before Comm., on same day as argument in N.A.A.C.P. (670.4). Issue: whether racial segregation constitutes discriminatory treatment forbidden by U. S. Constitution and Interstate Commerce Act. Decision pending.

Robert L. Carter and Thurgood Marshall, Esqs., N.A.A.C.P., 107 W. 43rd, NYC.

670.4. N.A.A.C.P. v. St. Louis-San Francisco Ry. Co. (I.C.C. #31423.) Trial examiner recommended that Comm. rule racial segregation in train coaches, railroad waiting rooms and rest rooms violations of Interstate Commerce Act but that segregation in privately-operated restaurant facilities in railroad stations not be considered a violation of I.C.A. July 14, 1955: oral argument before I.C.C.; decision awaited.

Robert L. Carter and Thurgood Marshall, Esqs., N.A.A.C.P., 107 W. 43rd, NYC.

680. Miscellaneous facilities

680.1. Rice v. Sioux City Memorial Park Cemetery, Inc. (U.S.S.C., #28.) (60 NW 2d 110, aff'd by divided U.S.S.C. in 348 U.S. 880, 349 U.S. 370.) Suit for damages by Pl.-widow of American Indian Korean-war hero against Def. co. for refusal to bury her husband due to his race, color. Clause in sales contract for cemetery lot reserved burial privileges for Caucasians only. Issues: did restrictive clause violate equal protection of laws clause of 14th Amdt. and United Nations Charter, Art. III of Chap. I re respect for human rights and fundamental freedoms "without distinction as to race, sex, language or religion." Iowa S. Ct. held UN claims irrelevant. May 9, 1955: U.S.S.C. dismissed case, instead of rejecting Pl.'s petition for rehearing. Justice Frankfurter, for maj., said original appeal for review had been "improvidently granted" because Iowa has new law prohibiting racial discrimination by cemeteries. (Black, Douglas, JJ. and Chief Justice Warren, dissenting.)

Neil R. McCluhan, Esq., and Lowell C. Kindig, Esq., 503 Toy Natl. Bank Bldg., both of Sioux City, Iowa.

- 31 -

680.2. Davis v. Brownell, et al. (DC DC #5282-54.) Pl. instituted class action for express and declared purpose of determining right of Dept. of Justice, Att'y Gen'l Brownell, and Director of Bureau of Prisons to practice discrimination and segregation according to race or color. Pl.-Negro prisoner of U. S. Govt. brought action in behalf of himself and all other Negro inmates of Federal prisons similarly subjected to discrimination and segregation. Defs. a few days after institution of action transferred Pl. to "administrative segregation" (solitary confinement) where allegedly no segregation was practiced. Thereafter, Defs. answered generally, denying allegations of complaint and subsequently moved to dismiss suit on grounds of mootness. By the time motion was argued, Defs. had further transferred Pl. to a state and county institution and contended that was a further ground in favor of mootness. Motion granted on ground of mootness.

Ralph E. Powe, Esq., 700 Macon St., Brooklyn, NY.

F. IN FAMILY MATTERS
690. Adoption and custody

690.1. In re: Adoption of a Minor. (CA DC, #12549.) Appeal from D. Ct's denial of petition for adoption of a child, filed by his natural mother (white) and his Negro stepfather. The child, born out of wedlock, was never supported by his natural father (white). Public Welfare Bd. recommended granting petition. July, 1955: CA reversed: "The 'primary duty' of the District Court is 'to determine the best interests of the infant.' " Pets.' refusal to sign loyalty oath (Gwinn Amdt. in public housing project—see cases at 410) may not be regarded "as an adverse reflection upon character. Nor can denial of the adoption rest on a distinction between the 'social status' of whites and Negroes." It is in the best interests of the child to have his status legitimatized and to live in this "happy home."

Forer & Rein, Esqs., 711 14th St., NW, Washington, D.C.

690.2. Re Custody of Sidney Branch. (Wash. S. Ct.) Kings County Super. Judge Hodson awarded 2-year-old child to her Negro father on basis of Ward decision that children of a mixed marriage ending in divorce "will have a much better opportunity to take their rightful place in society if they are brought up among their own people." The Ct. found that there is nothing in the record to show that the white mother had not been a good mother to the child. She is appealing the decision.

C. T. Hatten, Esq., 324 New World Life Bldg., Seattle.

690.3. Smith v. Smith. (Calif. Dist. Ct. of App., #15881.) Divorced white husband brought action to deprive wife of custody of children after she married a Negro. Trial Ct. awarded children to husband as prayed; made no finding as to grounds. Change of custody stayed by appeal, whereupon children abducted by husband who concealed them for two years. Husband adjudged in contempt. Issues: due process and equal protection; right of defaulting husband to be heard through counsel in appellate proceeding. Ct. of App. aff'd award on grounds of broad discretion in Trial Ct. in matters re children's welfare, found no evidence that stepfather's race influenced decision below. Children still missing.

Bertram Edises and Robert E. Treuhaft, Esqs., 1440 Broadway, Oakland, Calif.

690.4. Adoption of Hildy Ellis. (Mass. Sup. Judicial Ct.) Jewish foster parents seek writ of prohibition to present new evidence that Catholic natural mother knew their religion before consenting to adoption of Hildy, 4 yrs. old. Previously Norfolk Probate Judge had ordered Ellises to surrender Hildy for immediate placement in Catholic orphanage on motion of natural mother, despite their offer to bring her up in Catholic faith. Issue: constitutionality and interpretation of Mass. statute requirement placement of children in homes of same religious faith "where practicable." Decision pending.

James Zisman, Esq., Boston.

695. Marriage and divorce

695.1. Naim v. Naim. (U.S.S.C.) Caucasian wife filed action for annulment of marriage against Chinese husband under Va. anti-miscegenation statute. (See 20-54 Va. Code, 1950.) Issues: power of Va. courts to grant annulment decree based on race, and constitutionality of statute. June 13, 1955: Va. S. Ct. of App. affirmed lower ct.'s decree granting annulment, citing Stevens v. U. S. (CA 10, 146 F. 2d 120), and denial of cert. in Jackson v. State (348 US 888). Court held Brown (610.1) didn't apply because Equal Protection clause not involved here. Petition for cert. being filed in U.S.S.C.

David Carliner, Esq., Warner Bldg., Washington, D.C.