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Vol. I, No. 3
February, 1956

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Review of cases reported in the current DOCKET records some indication of the beginning of judicial restraint upon the abuse of power by Congressional Committees and Governmental agencies. In U. S. v. Kamin (310.3) the defendant was acquitted of an indictment which charged, in several counts, that he had refused to answer questions put to him relating to persons he knew to be Communists. Although the Court found that there was no Constitutional basis for the refusal under the First, Fourth, Fifth or Ninth Amendments, and that the questions were pertinent to the inquiry, it concluded, nevertheless, that the mandate of the Committee was not broad enough to cover the inquiry conducted.

The Court of Appeals for the District of Columbia, reversing a conviction for refusal to answer questions concerning persons who had in the past been members of the Communist Party, in Watkins v. U. S. (310.7), found, one judge dissenting, that the identity of Communists in 1942-1947 had little or nothing to do with union infiltration by Communists in 1954 and that, moreover, the real purpose of the Committee was exposure and not remedial legislation.

On the other hand, investigative committees do not seem to have been materially affected by such decisions. A contempt indictment has been returned against an attorney for refusal to answer questions concerning his own political beliefs while appearing as counsel for a witness before a sub-committee of the Senate Internal Security Committee. U. S. v. Sacher (301.12). In another case arising out of an appearance before the House Committee on Un-American Activities, a union official has been indicted for refusal to answer questions concerning Communists. U. S. v. Gojack (301.13).

In another area, the Supreme Court has restricted the use of the subpoena power by the Immigration and Naturalization Service over naturalized citizens. U. S. v. Minker (330.1); Falcone v. Barnes (330.2); Lansky v. Savoretti (330.4). The Service had asserted the power to subpoena naturalized citizens as witnesses in prospective denaturalization proceedings. One Court of Appeals had endorsed the Service, but the Supreme Court unanimously found an absence of such a grant of power in the Immigration and Naturalization Act of 1952.

A series of decisions under the Gwinn Amendment to the Federal Housing Act raise serious questions concerning its ultimate enforcement. Several cases are awaiting determination, in New York, Maryland and California (410.6-410.11). But in two New York cases, the Appellate Division for the 2nd Department held that a tenant had status to challenge the oath provision despite his non-membership in a listed organization and that the Housing Authority could not require a tenant to certify non-membership in every organization on the Attorney General's list, since the Act referred only to those classified as "subversive". Peters v. NYC Housing Authority (410.4): Weixel v. NYC Housing Authority (410.5).

In California, an attempt by the Los Angeles Housing Authority to evict a tenant for refusing to take an oath of non-membership in organizations on the Attorney General's list which had been successful in the trial court was reversed on appeal, with a ruling that an eviction based solely on failure to sign the oath was unconstitutional. Los Angeles Housing Authority v. Cordova (410.12). The New Jersey Supreme Court affirmed a lower court refusal to evict a tenant who concededly was a member of the Socialist Workers Party on the grounds first, that the Attorney General's list contained organizations not designated as "subversive" and second, that even membership in a "subversive" organization was not enough in the absence of proof of knowledge of its character. Kutcher v. Housing Authority of Newark (410.13).

There has been no effective review of the Armed Services' refusal to grant honorable discharges for reasons unconnected with Army service. Several cases are still awaiting decision (225.3, 225.21, 225.22, 225.23). In two cases, the actions have been dismissed on procedural grounds. Harmon v. Stevens (225.20), Marshall v. Wyman (450.4).

A clear cut decision in the passport denial cases is also still awaited. The Boudin case, in which the State Department was directed to provide a "quasi-judicial" hearing is on appeal (280.8), but in others, the Government has avoided a final resolution of the issue by granting passports (280.5, 280.10, 280.31).

Although the Veterans Administration in the Kutcher case (227.3) reinstated this veteran's disability payments and dismissed all charges against him, two similar proceedings have been instituted on similar grounds (227.1, 227.2). The Social Security Board has adopted a comparable rule toward social security payments to persons convicted under the Smith Act and those employed by the Communist Party. Administrative proceedings have been instituted to stop payments in three such cases (257.1). However, the Wisconsin Industrial Commission has approved unemployment compensation benefits to an employee dismissed by a private employer when he invoked the Fifth Amendment at a Congressional Committee hearing (475.4).

The lower federal and state courts have expressed a variety of opinions in actions seeking to end segregation both in schools and in places of public accommodation. The Sixth Circuit Court of Appeals directed a District Court to issue an injunction ending all segregation in public schools by September, 1956 (610.4). In Oklahoma, however, a three-judge court refused to order immediate integration (610.14).

In Tennessee, a District Court Judge directed that segregation be discontinued in a high school by the fall of 1956 (610.17), while in North Carolina, integration was ordered by February, 1956 (610.22). A similar result was reached in Kentucky (610.26); at the same time, another three-judge court in North Carolina dismissed a suit for failure to exhaust state remedies (610.27).

In many states other actions are pending to enforce complete integration. The Attorney General of Georgia, on the other hand, has commenced action to restrain a school board from even considering integration (610.59).

A unique action tests the good faith of the New York State Commission Against Discrimination in dismissing a complaint against Pan American Airways for denying a Negro employment as a flight steward. The complaint alleges that no hearing was held, despite "some suspicion" of racial discrimination and that one of the commissioners arranged for the offer of a non-flight position (650.3).