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Vol. I, No. 5
July, 1956

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"Loyalty-security" Dismissals

The Supreme Court's decision in Cole v. Young (described at 220.6) is expected to change the whole loyalty dismissal picture in federal employment * * * at least until Congress acts on the question. The Court of Appeals decision in the Kutcher case (220.5), restoring this "legless veteran" to his post in the Veterans Administration in the face of his activity in the Socialist Workers Party, may also have some wider repercussions. Cole, an employee of the Department of Health, Education and Welfare, was only charged with mild "association" with a nature-lovers' group "listed" by the Attorney General. But Kutcher openly avowed his membership in a political party charged with advocating the overthrow of the government by unconstitutional means.

At the same time, the Supreme Court declined to hear the National Lawyers Guild suit brought to test the constitutionality of the entire procedure followed by the Attorney General in establishing a "list of subversive organizations," membership in which can be a factor in employment in and dismissal from service in the executive branch of the government (160.1). While the Guild has no members who are currently employed by the executive branch, the Attorney General nonetheless took administrative steps looking toward listing the Guild as soon as certiorari was denied. He also reactivated other cases of organizations challenging his motions to list them. (See 160.4, 160.5, 160.6).

The Supreme Court's action in Black v. Cutter Laboratories (250.1) may be expected to have a wider effect, in the long run, than any of these decisions. This case involved an employee in a private industry which had no government defense contracts. The petitioner was a leader in her union and an alleged Communist. Yet the Court (6-3) permitted the decision of the California Supreme Court upholding her dismissal to stand without a real review of its impact on federally-protected constitutional rights.

The Coast Guard screening case from the West Coast (Parker v. Lester, 250.2) has resulted in the filing of two East Coast actions testing the screening procedures established after that decision (250.2a and 250.2b). A damage action has also been filed in New York against AWARE, one of "Red Channels' " cousins in the black-listing of radio and TV performers (250.4).

Independence of the Bar

The Supreme Court this spring agreed to hear the case of a law school graduate who passed the California Bar Examination but was denied admission to practice law there on the ground, among others, that he had refused to answer questions concerning his political beliefs (Konigsberg, 420.3). Apparently no appeal is being taken from a similar denial in New Mexico, involving a former union organizer and ex-Communist who answered all questions concerning his political activities but did not satisfy the Bar Examiners of his "moral fitness" to practice law. (See Schware, 260.4).

The Court will be asked to consider the disbarment action against Braverman (560.3, 560.3a), an attorney convicted of conspiracy to advocate under the Smith Act in a case which the Supreme Court did not review (U. S. v. Frankfield, cites at I DOCKET 24).

A third case going before the Court involves an attorney in a non-political case who defended a member of the Marine Corps vigorously and successfully and thereafter found himself indicted by a federal grand jury for contempt committed in a Marine Corps hearing and conspiracy and theft of the seventh carbon copy of the transcript of that hearing (Shibley, 560.6). The contempt charge resulted in dismissal and acquittal of all counts. But the conspiracy and theft charges resulted in conviction and a sentence of three years, which the Court of Appeals for the Ninth Circuit just affirmed.

Several other cases are pending before state and federal courts and bar association committees against attorneys charged with improper conduct in the course of representing defendants in Smith Act cases (Bouslog, 560.2, 560.2a; Gladstein, 560.1) or with having improper beliefs and political ties (260.2, 260.3).

What Rights for Non-Citizens?

In a 5-4 decision, the Supreme Court ruled that a non-citizen who has lived in the United States for many years, whose deportation would work "extreme hardship" on himself and his citizen-family and whose "character" the Immigration Service found to be "good", may be denied suspension of deportation on the basis of "confidential information" (Jay, 555.2). The Court did agree to hear a case testing the constitutionality of the Walter-McCarran Act provisions for deportation of non-citizens for proscribed political beliefs and associations regardless of the nature or duration of such belief and activity, its legality at the time, its intensity, or the length of time since it ceased (Rowoldt, 290.4).

And in a criminal proceeding brought by the Government against a deportee for refusal to answer questions, a federal court in Illinois held that the Immigration Service cannot ask a deportee, subjected to supervisory parole under the Walter-McCarran Act, questions concerning his political beliefs and associations because these have no bearing on his availability for deportation (Keller, 540.5).

The States and "Subversive Activities"

Following the Supreme Court's decision in Nelson (130.1), all of the states having similar cases promptly quashed the outstanding indictments, except Pennsylvania, which apparently plans to proceed with its appeal in Dolson (130.2), a companion case to Nelson. (See Braden, 130.3; Struik, 130.4 and 210.4); Hood, 130.5 and 210.5; Albertson, 210.3.) With the reversal (for insufficient evidence) of the Alabama conviction under a similar statute, the state slate is momentarily clean (Knox 210.1). (Immediately after release of defendants by the State of Massachusetts, three were charged with violation of the federal Smith Act. See 110.14.)

Note: Immunity from Prosecution

After fighting all the way to the Supreme Court against the Compulsory Testimony Act of 1954, when Ullmann (251.1) was finally ordered to answer all questions about his political beliefs and associations despite his claim of the privilege against self-incrimination, he did so. Federal Judge Weinfeld discharged him from his subpoena, satisfied that his answers did not provide a basis for either contempt or perjury indictments.