# Albertson v. Millard

> District Court, E.D. Michigan · July 30, 1952 · 106 F. Supp. 635

URL: https://www.frixlaw.com/law-library/cases/9664043

## Case

- **Full name:** ALBERTSON Et Al. v. MILLARD, Atty. Gen. of Michigan, Et Al.
- **Court:** District Court, E.D. Michigan
- **Decided:** July 30, 1952
- **Citations:** 106 F. Supp. 635; 1952 U.S. Dist. LEXIS 4065
- **Precedential status:** Published
- **Opinion:** Dissent by Levin
- **Judges:** Simons, Chief Circuit Judge, and Picard and Levin, District Judges
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9664043

## Opinion text

LEVIN, District Judge
(dissenting).
There can be no hesitancy in characterizing communism as imminently dangerous to our democratic form of government and to our way of life. Nor can there be any doubt that the Federal Constitution does not deny to the individual states that comprise our Union the right of self-preservation so recently affirmed in and vouchsafed to our Federal Government in Dennis v. United States, 341 U.S. 494 , 71 S.Ct. 857 , 95 L.Ed. 1137 . The courts have found that there is a justifiable basis for legislation directed to the problem.
The court has before it a specific enactment of the Michigan Legislature the application of which, the plaintiffs contend, will violate their constitutional rights. The issue before the court does not raise the problem of the State’s possession of constitutional power to protect its democratic form of government, but rather poses the question whether or not the method by which the 'Legislature has attempted to deal with communism is one which is consistent with the Federal Constitution.
The attempt of the Michigan Legislature to enact into law measures for the control of communism and the Communist Party, as we know them today, is commendable in the highest degree, and courts should be slow to overturn such legislation. Nevertheless, I have come to the conclusion that there are valid constitutional objections to this Act because it invades a field validly pre-empted by Congress and because it denies due process of law as guaranteed by the Fourteenth Amendment.
The Congress of the United States has formally recognized the threat to the country’s internal security represented by world communism and has acted with respect to this danger through the Internal Security Act of 1950,' Public Law 831, 50 U.S.C.A. § 781 et seq., known as the McCarran Act. Both the Congressional and the Michigan Acts provide for the registration of communist organizations and their members.
The Michigan Act is not limited, as its preamble suggests, 1 to the protection of state employment and the state public school system; its title, the “Michigan Communist Control Law,” Sec. 11, and its provisions make it clear that the Act is directed to the control of the same problem with which Congress was concerned in enacting the Internal Security Act of 1950. The intent of the Michigan Legislature is apparent from the final finding of necessity:
“Sec. 12. The need for registration and location of the conspiratorial members of the communist movement and the need for protection against the acts and conspiracies of such persons create an emergency and an imperative necessity.”
The principle that a state may not enter a field validly occupied by Congress has long been recognized. Charleston & Western Carolina Railway Co. v. Varnville Furniture Co., 237 U.S. 597 , 35 S.Ct. 715 , 59 L. Ed. 1137 ; Napier v. Atlantic Coast Line R. Co., 272 U.S. 605 , 47 S.Ct. 207 , 71 L.Ed. 432 . While it avoided any statement that could be construed as the formulation of a hard and fast rule, the Supreme Court in Hines v. Davidowitz, 312 U.S. 52 , 61 S.Ct. 399 , 85 L.Ed, 581, set forth many of the considerations that must influence a decision in this area:
“* * * There is not — and from' the very nature of the problem there cannot be — any rigid formula or rule which can be used as a universal pattern to determine the meaning and purpose of every act of Congress. This Court, in considering the validity of state laws in the light of treaties or federal laws touching the same subject, has made use of the following expres *648 sions: conflicting; contrary to; occupying the field; repugnance; difference ; irreconcilability; inconsistency; violation; curtailment; and interference. But none of these expressions provides an infallible constitutional test or an exclusive constitutional yardstick. In the final analysis, there can be no one crystal clear distinctly marked formula. Our primary function is to determine whether, under the circumstances of this particular case, Pennsylvania’s law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. And in that determination it is of importance that this legislation is in a field which affects international relations, the one aspect of our government that from the first has been most generally conceded imperatively to demand broad national authority. Any concurrent state power that may exist is restricted to the narrowest of limits; the states’ power here is not bottomed on the same broad base as is its power to tax. And it is4also of importance that this legislation deals with the rights, liberties, and personal freedoms of human beings, and is in an entirely different category from state tax statutes or state pure food laws regulating the labels on cans.” 312 U. S. at pages 67, 68, 61 S.Ct. at page 404 .
Although the subject matter is different, many of the considerations that influenced the decision in the Hines case are also present in the case at bar.
In United States v. Pink, 315 U.S. 203 , 62 S.Ct. 552 , 86 L.Ed. 796 , the court stated that the regulation of foreign affairs is an exclusively federal function. Although there was no conflict with any treaty, executive agreement, or act of Congress, the court held that the domestic policy of the State of New York, affecting a field traditionally a part of its domestic concern, was unconstitutional because in conflict with the foreign policy of the United States as evidenced by our recognition of and resumption of diplomatic relations with the Soviet Union. Mr. Justice Douglas, speaking for the court, said:
“Here we are dealing with an exclusive federal function. If state laws and policies did not yield before the exercise of the external powers of the United States, then our foreign policy might be thwarted. These are delicate matters. If state action could defeat or alter our foreign policy, serious consequences might ensue. The nation as a whole would be held to answer if a State created difficulties with a foreign power. * * * ” 315 U.S. at page 232 , 62 S.Ct; at page 566.
The Congressional finding in the McCar-ran Act is to the effect that the problem of communism is not a local one but that communism is a movement world-wide in scope, which has for. its objective the overthrow of existing governments and the substitution of governments subject to the domination of a foreign power.
The Michigan Act has defined the “communist party” as “any organization which is substantially directed, dominated or controlled by the Union of Soviet Socialist Republics or its satellites, or which in any manner advocates, or acts to further, the world communist movement.” Sec. 3. The Act imposes on the law enforcement officers of this State the task of determining the extent of Soviet influence in specific areas of our society, a determination that must inevitably involve an interpretation of Russian foreign policy and an evaluation of the devices of Soviet policy. Moreover, they must decide which countries are Soviet satellites and which countries are not. The Act is silent as to the standards to be observed by these officers in formulating their opinions. It must be readily apparent that this legislation — particularly if multiplied forty-eight times — could seriously embarrass the Federal Government in a peculiarly sensitive international area.
The Internal Security Act is based on grants of powers to Congress 2 — the power *649 to provide for the common defense, to preserve the sovereignty of the United States as an independent nation, and to secure to each state a republican form of government. To the extent that the Michigan Act constitutes “an obstacle to the accomplishment and execution of the full purposes and objectives of Congress”, Hines v. Da-vidowitz, supra, 312 U.S. at page 67 , 61 S. Ct. at page 404 , it is an unconstitutional interference with the Congressional exercise of powers vested in the national government.
That Congress had in mind the welfare of the individual states in passing the Internal Security Act is shown in its declared purpose — “to provide for the common defense * * * to guarantee to each State a republican form of government” — and in its provision that the files of registrants compiled by authority of the Act be open to public inspection. 50 U.S.C.A. § 788 (b) 3
While there is no outright conflict in the purposes of the registration provisions of the Federal and Michigan Acts, their concurrent application involves important differences in procedure, and these differences could easily lead to frustration of important and clearly indicated Congressional objectives.
In contrast with the Michigan Act the Federal Act manifests throughout an awareness that Congress is exercising power in the delicate areas protected by the First and Fifth Amendments. The legislative history of the Internal Security Act shows that Congress was concerned with the constitutional rights of individuals affected by the Act and sought to provide for their protection. The report of the House Committee on Un-American Activities states:
“The committee approached the problem with care and restraint because it is believed essential that any legislation recommended be strictly in accordance with our constitutional traditions. How to protect freedom from those who would destroy it, without infringing upon the freedom of all our people, presents a question fraught with constitutional and practical difficulties. We must not mortally wound our democratic framework in attempting to protect it from those who threaten to destroy it.” 2 U.S.Code Cong.Serv. 1950, p. 3888.
The registration system devised by Congress manifests a real attempt to preserve constitutionally protected liberties. Administrative hearings are accorded to both individuals and organizations. Standards are provided by which the administrative decision is to be made. Judicial review of questions of law and an opportunity, through court order, to have new evidence considered by the Subversive Activities Control Board are allowed, and determinations of the Board are not considered final until ju *650 dicial review has been had or the time for appeal has lapsed. Information given to the Government under the provisions of the Internal Security Act is not admissible as evidence in a criminal trial. 50 U.S.C.A. § 783 (f).
The Congressional intent seems to have been to establish a national system that would yield the information Congress deemed necessary to combat the communist danger on all levels with as little interference with individual liberties as possible. It is unlikely that Congress intended to have this system undermined by less carefully considered legislation in the individual states directed to the same objective.
The Michigan Act offers no protection other than the right to defense in a criminal trial. No administrative hearings are afforded either to organizations or individuals.
The conclusion reached in the Hines case is pertinent here:
“ * * * The legislative history of the Act indicates that Congress was trying to steer a middle path, realizing that any registration requirement was a departure from our traditional policy of not treating aliens as a thing apart, but also feeling that the Nation was in need of the type of information to be secured. Having the constitutional authority so to do, it has provided a standard for alien registration in a single integrated and all-embracing system in order to obtain the information deemed to be desirable in connection with aliens. * * * it plainly manifested a purpose to do so in such a way as'to protect the personal liberties of law-abiding aliens through one uniform national registration system, and to leave them free from the possibility-of inquisitorial practices and police surveillance that might not only affect our international relations but might also generate the very disloyalty which the law has intended guarding against.” 312 U.S. at page 73 , 61 S.Ct. at page 407 .-
The Congressional purpose manifested in the safeguards erected in the McCarran Act ■could be thwarted and ultimately rendered meaningless were acts like the Michigan Act here in question put into operation in each or any of the forty-eight states.
Taking into account all the relevant considerations — the interference by the provi-' sions of the Michigan Act with the exclusive control of the Federal Government over the conduct of foreign affairs, the duplication of purpose and result, the manifest intent of Congress to protect fundamental rights and the frustration of that -purpose which would result if the registration provisions of the Michigan Act were permitted to stand — I feel that the registration provisions of the Internal Security Act of 1950 have pre-empted the field. 4
But even if Congress had not pre-empted the field, the Michigan Act would fail to meet the standard of due process. Registration, the method employed by the Legislature in its attempt to check communism, is, of course, not of itself violative of the Fourteenth Amendment. People of State of N. Y. ex rel. Bryant v. Zimmerman, 1928, 278 U.S. 63 , 49 S.Ct. 61 , 73 L.Ed. 184 . But the due process clause of that Amendment is offended because the definitions contained in the Act are too vague and indefinite to afford due process of law to those affected by its provisions. Winters v. New York, 333 U.S. 507 , 68 S.Ct. 665 , 92 L.Ed. 840 ; Lanzetta v. New Jersey, 306 U.S. 451 , 59 S.Ct. 618 , 83 L.Ed. 888 .
The definitions of “communist party” and “communist” are fundamental to the entire Act; if they fail to meet the constitutional test every section of the Act in which they appear must fall.
The “communist party” is declared, for the purposes of this Act, to be “any organization which is substantially directed, dominated or controlled by the Union of Soviet Socialist Republics or its satellites, or which *651 in any manner advocates, or acts to further, the world communist movement.” A person who is a member of (“notwithstanding the fact that he may not pay dues to, or hold a card in * * * ”) or who contributes “funds or any character of property” to the “communist party” is defined as a “communist”. A “communist front organization” is defined as “any organization, the members of which are not all communists, but which is substantially directed, dominated or controlled by communists or by the communist party, or which in any manner advocates, or acts to further, the world communist movement.”
The Michigan Legislature makes no findings as to the nature of the world communist movement. With respect to communist front organizations, the Attorney General is to make and publish a list of such organizations. No hearing is afforded either organizations or individuals prior to criminal indictment and trial for failure to register under the Act. No standards other than those set forth in the definitions are provided in the Act. 5 The loose nature of these definitions- can be seen in the fact that the second definitions of both “communist party” and “communist front organization” (the disjunctive “or” is used in both Sec. 3 and Sec. 4) are identical.
Moreover, to be a “communist” under the Michigan Act a person need not be a member of the “communist party,” or have any connection with the party at all; lie may be one who “commits or advocates the commission of any act reasonably calculated to further the overthrow of the Government of the United States of America, the Government of the State of Michigan, or the government of any political' subdivision of either of them by force or violence.” 6
The definitions contained in the Act are designed to avoid limiting the operation of the Act to the recognized Communist Party and its affiliates operating in Michigan. They delegate to the enforcement authorities of the State power arbitrarily to label individuals and organizations as Communists and to subject such possibly innocent individuals, if they would defend themselves, to the shame and ignominy of a criminal trial.
The Act before the-court cannot be said to meet the test of due process as it has been enunciated from time to time by the Supreme Court. That some of the persons to whom it was intended to apply can be ascertained, is not enough to save an act otherwise so uncertain and potentially arbitrary in its terms and application.
Nor are the plaintiffs Albertson, admittedly a member of the Communist Party of Michigan, (but who does not admit he is a “communist” within the Act’s definition) and the Party itself precluded from asserting this objection simply because the Legislature in drafting this Act attempted to include them. In Thornhill v. Alabama, 310 U.S. 88, 98 , 60 S.Ct. 736, 742 , 84 L.Ed. *652 1093 , it was held that the statute must be judged upon its face and that, “where regulations of the liberty of free discussion are concerned, there are special reasons for observing the rule that it is the statute, and not the accusation or the evidence under it, which prescribes the limits of permissible conduct and warns against transgression.”
There is another aspect oí this enactment equally repugnant to the due process clause of the Fourteenth Amendment. The registration required by the Act is not limited to mere identification of “communist party” or “communist front organizations” and their members. It must include not only the name, “including any assumed name used or in use,” address, business occupation, and place of birth of the registrant, but the purpose of his presence in the State, the sources of his income, his places of former residence, and “features of identification, including fingerprints * * * organizations of which the registrant is a member; names of persons known by registrant to be communists or members of any communist front organization;” and “any other inforfnation requested by the Michigan State Police which is relevant to the purposes of this Act.” Sec. 5(b).
Officers of these organizations must give under oath the name of the organization, the names of members who have been in Michigan for thirty days, the names of any persons who have attended their meetings, a financial statement and “any other information * * * which is relevant to the purposes of this Act.” Such organization officers must not only register but must report at “such intervals as are directed by the Michigan State Police.” Sec. 5(c). The registration records are to be open at all times to any law enforcement officer of the United States or of the State or any political subdivision of either, and such records may also, at the discretion of the Michigan State Police, be open for inspection by the general public.
The questions relevant to this Act which must be answered under oath as a part, of the registration procedure may extend to much more than the mere admission of communism, which itself has been held by the Supreme Court to be incriminating. Blau v. United States, 340 U.S. 159 , 71 S.Ct. 223 , 95 L.Ed. 170 ; see also Alexander v. United States, 9 Cir., 181 F.2d 480 . The Act contains a section creating the crime of sabotage, a crime punishable by as much as a twenty-year prison term. It also contains a definition of “communism” substantially in the language of the Smith Act and the Michigan Little Smith Act. Thus the registration required by the Act includes much more than mere identification; it requires (at the option of the police) sworn testimony concerning serious crimes punishable by long prison terms, and makes the failure to give such testimony a crime punishable by a maximum of ten years’ imprisonment.
The Michigan law before the court compels those to whom it applies, on pain of imprisonment for as many as ten years or fine of not more than $10,000, to testify with respect to criminal activities; it, in effect, forces a man to take the stand and testify at his own criminal trial. The individual who registers under the provisions of this Act, subjects himself to the real danger of indictment under the Michigan Little Smith Act and by the admission required in his registration he deprives himself of the possibility of an effective defense to the charge. The Supreme Court has never gone so far as to say that such a procedure accords with due process of law. In Rochin v. California, 342 U.S. 165 , 72 S.Ct. 205 , the court reasoned that procedures that depart radically from our traditional concepts of fairness do not afford due process of law even though that guaranty under the Fourteenth Amendment does not include the literal protections of the Fifth Amendment. In giving a person a choice between a prison term for failure to register and the opportunity to testify under oath concerning his criminal activities, the Act offends the Fourteenth Amendment’s guaranty of due process of law.
There is another reason for finding that the Act violates the guaranty of due process of law of the Fourteenth Amendment *653 This Act does not balance favorably when weighed in the scales with the guaranties of the First Amendment which must be observed in according due process of law. The enforcement of this Act would constitute a continuing threat to freedom of speech and assembly. To be subject to its sanctions one need not be guilty of any subversive thought or act. To be prosecuted under the Act one need only have failed to register and have belonged or made financial contributions to an organization that acts “in any manner” to further the world communist movement. The world communist movement embraces not only the plan of a world revolution to result in the destruction of all that freedom loving people hold dear, but also espouses, though with a complete absence of sincerity, ideas, theories, and non-violent policies which to a greater or less degree are shared by many loyal citizens who abhor communism. This Act, if allowed to stand, will contribute to the creation in this country of that phenomenon so familiar in totalitarian countries, — the public advocacy on the part of law-abiding citizens of a stereotyped political ideology and the stifling of the kind of free inquiry and investigation into the whole realm of political ideas that has characterized the growth of our democracy. I believe that the particular means here employed to combat the danger of communism constitute an arbitrary exercise of police powers that, by unnecessary interference with the guaranties of free speech and assembly, violate the due process clause of the Fourteenth Amendment.
The Legislature is not powerless to deal with subversives. The convictions sustained in Dennis v. United States, supra, point the way to state control of the serious problem which confronts us by those within our midst who would destroy our Government. Such persons can be dealt with by the Michigan authorities by existing statutes and by such further legislation, consistent with the Federal Constitution, as the Legislature may choose to enact.
The provisions of the Michigan Act complained ovf do not meet constitutional standards and for these reasons I would enjoin their enforcement.
. Internal Security Act, 50 U.S.O.A. § 781(15).
“ * * * Congress, in order to provide for the common defense, to preserve the sovereignty of the United States as an independent nation, and to guar *649 antee to each State a republican form of government, enact appropriate legislation recognizing the existence of such worldwide conspiracy and designed to prevent it from accomplishing its purpose in the United States.”
. Intent is an important factor in determining whether or not a federal statute has pre-empted a field. This is particularly true when Congress acts in a field “traditionally occupied” by the states. Then Congressional intent is decisive; the state act will not be struck down unless there is actual conflict or it is clear that Congress intended to preclude state action. Rice v. Santa Fe Elevator Corp., 331 U.S. 218 , 67 S.Ct. 1146 , 91 L.Ed. 1447 ; Allen-Bradley Local v. Wisconsin Employment Relations Bd., 315 U.S. 740 , 62 S.Ct. 820 , 86 L.Ed. 1154 . But even then such intent need not be expressly stated. The Supreme Court has been Quick, for instance, to strike down state legislation in the labor-management field that conflicts or could lead to conflicts with the objectives and policy of the Taft-Hartley Act, even though that Act expressly reserves the right to the states to act in the same field. Hill v. Florida, 325 U.S. 538 , 65 S.Ct. 1373 , 89 L.Ed. 1782 ; Bethlehem Steel Co. v. New York State Labor Relations Bd., 330 U. S. 767 , 67 S.Ct. 1026 , 91 L.Ed. 1234 ; La Crosse Tel. Corp. v. Wis. Bd., 336 U. S. 18 , 69 S.Ct. 379 , 93 L.Ed. 463 ; Plankinton Packing Co. v. Wisconsin Employment Relations Bd., 338 U.S. 953 , 70 S. Ct. 491 , 94 L.Ed. 588 ; International Union of United Automobile, etc., Workers of America, C.I.O. v. O’Brien, 339 U.S. 454 , 70 S.Ct. 781 , 94 L.Ed. 978 ; but see Algoma Plywood & Veneer Co. v. Wisconsin Employment Relations Board, 336 U.S. 301 , 69 S.Ct. 584 , 93 L.Ed. 691 .
. The legislative history of the Internal Security Act indicates that Congress did not intend to outlaw the Communist Party but preferred to leave to the states control over elections held within their territory. U.S.C.Cong.Serv., 1950, 81st Cong., 2nd Sess., Vol. 2, p. 8890. In view of this evidence of legislative intent it cannot be said that Congress has preempted such action by a state.
. Contrast the McCarran Act’s detailed legislative finding concerning the world communist movement, the definition of a “Communist-action organization” as one that “operates primarily to advance the objectives of such world Communist movement as referred to * * * ” the detailed standards set forth for determining whether a specific organization is a “Communist-front organization”; and the requirements of an agency finding as to every organization that insures uniformity of application. From information received from the Subversive Activities Control Board established under the Act, hearings with respect to the Communist Party of the United States have been in progress for approximately fourteen months, the Board has heard twenty-six witnesses, and the transcript of the testimony is over 4500 pages. The proceedings have not been concluded.
. There is nothing in the Dennis case to indicate, nor is it logical to suppose, that everyone guilty of violating the Smith Act, 18 U.S.C.A. § 2385 , is a Communist. It is common knowledge that there have been in the past, that there may be in the present and perhaps will be in the future, organizations and individuals in no way connected with and, in fact, opposed to communism who may be subject to conviction under the Smith Act.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9664043. Public record. Not legal advice.