Jurisdictional Statement — Mitchell v. Donovan

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JOHN F. DAVIS, CL

Supreme Court 4 the ited States

OcroBER TERM, 1969

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CHARLENE MITCHELL, et al.,

Appellants,

ny ame

JosePpH L. Donovan, Secretary of State of the State of ©

Minnesota and DovGi.as M. Heap, Attorney General of

the State of Minnesota,

Appellees.

ON APPEAL FROM THE UNITED STATES. DISTRICT COURT

FOR THE DISTRICT OF MINNESOTA

JURISDICTIONAL STATEMENT

Lynn S. Castner

Minnesota Civil Liberties Union

925 Upper Midwest Building .

Minneapolis, Minnesota 55401

Attorney for Appellants

Me.vin L. Wuir

156 ‘Fifth Avenue

New York, New York 10010

Of Counsel:

SS SS

—

Opinions Below Rica eee seaieceseisons SF g)phee ORF TRS RM

SR ALR SEAR: SEES a

NNN NINN acide ction ekinscesedeaviniSeceo—cescbubbiionasinnsen

Questions Presented me ssdeaccucnasdigecamuacctes

Statement of the Case cn

The Questions. Presented Are Substantial .............. Pare a

A court cannot grant temporary relief and

then claim that the granting of the temporary

relief causes the original action to become mcot

and not an actual controversy when a federal

statute remains in effect which can be used to

inhibit appellants’ electoral activities ..............

The Communist Control Act, 50 U. S. C. $§841

and 842, is an unconstitutional bill of attainder

The Communist Control Act, 50 U: 8. C. §§841

and 842, is an unconstitutional ex post facto law

The Communist Control Act, 50 U. S. C. §$841

and 842, violates freedom of speech, press, as- -

sembly and petition -..02..2..20.2022.22.2-2:.:00------ pleas

“The Communist Control Act, 50 U.S. C. $y841

and 842, violates substantive due process ....

The Communist Control Act, 50 U.S. C, §$841

and 842, violates procedural due process ........

7. The appellees’? action in refusing appellants’

nominating petition deprived appellants of due

process and equal protection.of the law ...........

8. The dismissal of the complaint by the court be-

low deprives-appellants of equal protection of

the law by requiring appellants to follow addi-

tional procedures not required of other politi-

CUE RIT Sistecar scscisimscxchtsncntgeiciomciocnasionds

9, The Communist Control Act of 1954, 50 U.S. C.

§§841 and 842, is not within the legislative

power of Congress in that Article II, Section 1,

Clause 2 of the United States Constitution

limits federal control over the qualifications of

presidential electors asepcnianihansilncicdean ianeeucanlasaiine

a a ee re eS Fe

ApPpENvDIxX—Opinions and Judgment Below:

1. Opinion and judgment of three-judge court on

IE «hy SE pacescensnnecccernsneterenacandStaectrctncssi

2. Opinion and judgment of three-judge court on

July 14, 1969 -..W-..W.n-.-ereneeneenee rich ka cacadlber tie ee

CITATIONS

Cases:

PAGE,

Allen v. State Board of Elections; Fairley v. Patter-_

son, Bunton v.. Patterson; and Whitley v. Williams,

Tw le Th DR CED wiciericeistncecictcscsatatnininsiniicienisemicninianbevenion ,

Anderson v. Martin, 375-U. S. 399 (1964) _.00........ 21, 22

ill

PAGE |

Aptheker v. Secretary of State, 378 U.S. 500 (1964) .. 20

Associated «Press v. United States, 326 U. S. 1 (1944) 19

Baker v. Carr, 369 U.S. 186 (1962) on. ceeeeeeeeeeeeeeeee |

Bohler v. Lane, 204 F. Supp. 168 (D. Fla. 1962) PERI Pi 14

Brockington v. Rhodes (No. eid 37 L. W. 3301, Feb-

I iis I occetiicestvtadinchaccaachcacincthapicckeacait Sirus 15

Butler v.. Michigan, 352 U. S. 380 (1957 D setcarbbrsnieahanioosiinine’ 19

Cantwell v. Connecticut, 310 U. S. 296 (1940) ......... iseeeats 20

Carrington v. Rash, 380 U. S. 89 (1965) -.....222..------ 21

‘Clark v. Poor, 274 U. S. 554 (1927) 20 3

Communist Party, U. S. A. v. Catherwood, 367 U. S..

389 (1961) ; ; NE: 9, 16,18

Communist Party, U. S. A. v. Babeenive Activities

Control Board, 367 U. S. 1 (1961) 0. 17,18

Cummings v. Missouri, 71 U. S. (4 Wall.) 277, 18

2 Miike Be MS CD saci esccecenccnisaicls jaminataaicadRceuabicss 17,18 ©

Elfbrandt v. Russell, 384 U. S. 11 (1966) 002... 20

_ Ex parte Garland, 71 U. S. (4 Wall.) 333, 18 L. Ed.

906 (1867) iedadincadsebeaideslatetcsbiedenit 17.

Fitzgerald v. Green, 134.U. S. 377 (1890) ..... tS 23

Florida Lime and Avocado Growers, Inc. v. Jacobsen, |

ee ea Sia easels ecaedeeersindcccadteasenss 2-3

_ Friend v. United States, 388 F. 2d 579 (D. C. Cir. 1967) 14

- Gray v. Sanders, 372 U. S. 368 (1963) cApibdasetinaelaodies 14.

Hadnott v. Amos, 394 U. S. 358 (1969) 15

Hall v. Beals, 89 S. Ct. 1624, May 5, 1969 ooo. 15

wm.

lV at dace

’ PAGE

Heilberg v. Fixa, 236 F. Supp. 405 x. D. Cal. 1964) .. 14

Hunter v. Erickson, 393 U. S. 389 ( 1969) stdibe uenitiinkaohe ai, 22

Joint Anti-Fascist Hefngee Committee v. MeGrath, 341

FS Sp 2.) seul Wimmer iethcarh oe Sepa SARC? Sete 20

Manley v. Georgia, 279 U. S. 1 (1929) tan dedecstabanss sicoae: <a

McFarland v. American ie a hi Co., 241 U. S.

- 79 (1916) SRE ak PoE Re coasetnasvanesnnessnnecsnessensbentecnossenenseneesunasens 21 -

McPherson v. Blacker, 146 U. S. 1 (1902) ee 23

Mitchell v..Donovah, 290 F. Supp. 642 (D. Minn. 1968) 10_

Moore v. Ogilvie, 394 U. S. 814 (1969) 0. 13, 15.

Morris v. Williams, 149 F. 2d 703 (8th Cir. 1945) ...... 14

‘NX. AL A.C P. v; Alabama, 377 U. S. 288 (1964) <... 20

National Association for the Advancement of Colored

People v. Alabama, 357 U. S. 449 (1958) ......... ea

Nebbia v. New York, 291 U. S. 502 (1934) sinker 19

" Reitman v. Mulkey, 387 a © BOD (1967) oeeeeceeeeeeneee 21

Reynolds v. Sims, 377 U. S. oe SRR eae eee 21

Salwen v. Rees, 108 At. 2d 265 PR vcncecnnntcnes eae 16

Shelton v. Tucker, 364 U. S. 479 (1960) _200 2. 20

Stromberg v. California, 283 U. 8. 35 (1931) 2000000020... 19

Tot v. U. S., 319 U.S. 463 (1943) oa eccesseeecseeeecceee 2

Tyson v. Cages, 363 F. 2d 742 (5th Cir. 1966) fosieabiinesinan 14

United States v. Brown, 381-U. S. 437 (1965) _....... 17

- United States v. Lovett, 328 U. S. 303 (TDG) ccsaicvcnssenee 17:

Constitution: ht.

Bill of Attainder ......1:.......1..4.

Ex Post Facto Law .....0.........-..- SOE S ALOE SM

First Amendment. .....02222220..2.22220.--40--0-+ rele a

Fifth Amendment \...........-ccccscccssccesccsccccsoesssseecsessoeeee!

-Equal Protection Clause -.......2..2....--2sceslesesseceeseeseeeseeeeeees |

. Article I, Section 9, Clause 3>................ pease acai:

~ Article I, Section 10, RII 2 , Sa heceocdccunknceecbinkakboat tenes

Article II, Section 1, Clause 2 0.0.0.2... ceeeeeeeeee eee

vaio lV, scauees 2, Clause 1

Statutes:

° |

Communist Control Act of 1954.

Section 841, 50 Bae es canes 2, 3, 5, 6, 7, 8, 12, 13, 15,

ae 16, 17, 18, 19, 20, 21, 22

Section 842, 50 U.S. CG ace Seige ...2, 4, 5, 6, 7, 8, 12, 13, 15, -

16, 17, 18, 19, 20, 21, 22 °

28 U.S. C.

NINN CUI = spilics sansscasctepsetinnaie>-kabbbeoniemnacloauncioes Ree Rpm nae ?

Section 188%. ii... sDakesecbekectits ipelibedaes 2

Section 1343 (3) and (4) —............ Rarer vee 2

Section 2043 2.2. OEE We RIOR Pe ey 8

Section 2282 20... le PRON CE A PIM a 2

Section 2284 0... se scccstga meat oan 2 :

Fe ey aT TnEN aE

Minnesota Statute 202.11 (2) ........ sc chidislantalicdeihentanetag

IN THE -

Supreme Court of the Anited Ptates

Ocroser Term, 1969

$ gRaerien

eee Va.

‘ CuHartene Mircue.t, et al.,

Appellants,

eT = ,

Joseru 1. Doxovay, Seeretary of State of the State of

Minnesota and Dovcias M. Heap, Attorney General of .

_ the State of Minnesota,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MINNESOTA

. JURISDICTIONAL STATEMENT

Appellants appeal from the final order of a three-judge

court of the United States District Court for the District

of Minnesota dismissing their complaint as moot and sub-

mit this statement to show that the Supreme Court of the

United States has jurisdiction of this appeal and that a

substantial question is. presented.

Opinions Below

. The initial opinion dated Oct. 2, 1968, granting an order

requiring “the appellee, Joseph L: Donovan, to place the

names of appellant presidential .and vice-presidential

candidates on the Minnesota general election ballot is

‘9

—

reported in 290 F. Supp. 642 (D. Minn. 1968) and is set out

in the Appendix, infra, pp. 25-37. The later opinion July 14, °

1969, granting an order allowing the amendment to the

complaint, and dismissing the complaint, has not yet been

officially reported. It is set out in the Appendix, infra,

pp. 38-47.. |

Jurisdiction :

Appellants brought this action in the United States

District Court for.the District of Minnesota for a temporary

and a permanent injunction requiring the Secretary of

State of Minnesota to accept the appellants’ nominating

petitions and to place the names of appellants Mitchell and _

YZagarell on the November, 1968 general election ballot in

Minnesota and for a.declaratory judgment that the Com-

munist Control Act of 1954, 50 U. S. C. §$841 and 842, is

unconstitutional and void. ‘50 U. S. C. {$841 and 842 were

cited by the appellees as barring the appellant candidates

_ from the ballot..

The action was brought under 28 U. S. C. $1331, 28

U.S. C. $1343 (3) and.(4), 42 U. S. C. $$§1981, 1983, and

1988, and 28 U. S. C. §§2282 and 2284.

The three-judge court dismissed the appellants’ com-

plaint as moot on July 14, 1969, which order was entered

on that same date. The notice of appeal was filed on

August 13, 1969 in the United States District Court for the

District of Minnesota in the Third Division.

The final order of the three-judge court dismissing the

complaint is appealable to the Supreme Court of the United _

States under 28 U. S. C. $1253. The following decisions

sustain the jurisdiction of the Supreme Court to review

. the judgment on direct appeal in this case: Florida Lime

| and Avocado Growers, Inc. v. Jacobsen, 362 U. S. 73 (1960),

Clark vy. Poor, 274 U. S. 554 (1927). |

Statutes Involved

50 U. S. C. §841 provides:

§841. Findings and declarations of fact

The Congress finds and declares that the Communist

Party of the United States, although purportedly a

political party, is in fact an instrumentality of a con-

spiracy to overthrow the Government of the United

States. It constitutes an authoritarian dictatorship

within a republic, demanding for itself the rights and

privileges accorded to political parties, but denying to

‘ all others the liberties guaranteed by the Constitution.

Unlike political parties, which evolve their policies and

programs through public means, by the reconciliation —

of a wide variety of individual views, and submit those

policies and programs to the electorate at large for

approval or disapproval, the policies and programs of

the Communist Party are secretly. prescribed for it by

the fortign leaders of the world Communist move-

ment. Its members have no part in determining its

goals, and are not permitted to voice dissent to party

objectives. Unlike members of political parties, mem-

bers of the Communist Party are ‘recruited for in-

doctrination with respect to its objectives and methods

and are organized, instructed, and disciplined to carry

into action slavishly the assignments given them by

- their hierarchical chieftains. Unlike political parties,

the Communist Party acknowledges rio constitutional

or statutory, limitations upon its conduct or upon that

of its members. The Communist Party is relatively

small numerically, and gives scant indication of capac-

ity ever to attain its ends by lawful political means.

The peril inherent in its operation arises not from its

numbers, but from its failure to acknowledge any-

limitation as to’ the nature of its activities, and its

dedication to the proposition that the present constitu-

tional Government of the United States ultimately must

be brought to ruin’ by any available means, including

resort to force and violence. Holding that doctrine,

its role as the agency of a hostile foreign power ren-

ders its existence a clear present and continuing dan-

ger to the security of the United States, It is the means

whereby individuals are seduced into the service of

the world Communist movement, trained to do its

bidding, and directed and controlled in the conspirato-

rial performance of their revolutionary services. There-

fore, the Communist Party should be outlawed. Aug.

24, 1954, ec. 886, §2, 68 Stat. 775.

- 50 U.S. C. $842 provides:

§842. Proscription of Communist Party, its successors

and subsidiary organizations

The Communist Party of the United States, or any

successors of such party regardless of the assumed

name, whose object or purpose is to overthrow the

Government of the United States, or the government

of any State, Territory, District, or possession thereof,

or the government of any political subdivision therein

by force and violence, are not entitled to any of the

rights, privileges and immunities attendant upon legal

bodies created under the jurisdiction of the laws of

«Rael ie tat ee ha

the United States or any political subdivision thereof;

and whatever rights, privileges, and immunities which

have heretofore been granted to-said party or to any

subsidiary organization by reason of the laws of the

United States or any political subdivision thereof, are

terminated: Provided, however, That nothing in this

section shall be construed as amending the Internal

Security Act of. 1950, as amended. Aug. 24, 1954, ¢. 886,

§3, 68 Stat. 776.

Questions Presented

Whether the three-judge court erred in dismissing

the complaint on the ground of mootness, in view of

the fact that there is uncontradicted evidence. that

the appellant Communist Party of Minnesota will

participate in future Minnesota elections, and that the

appellee Attorney General of the State of Minnesota

has firmly established state policy that 50 U. S. C.

§§841 and 842 (Communist Control Act of 1954) pro- -

hibits appellants from appearing on any Minnesota

election ballots, by a formal public opinion of the

Attorney General to this effect and by maintaining

this position before the three-judge court after the

three-judge court granted temporary relief.

Whether 50 U. S. C. $6841 and 842 is a bill of at-

tainder in violation of Article I, Section 9, Clause 3

of the U. S. Constitution, and when applied by the

states, is a violation of Article I, Section 10, Clause 1

of the U. S. Constitution.

Whether 50 U. S. C..4$841 and 842 is an ex post facto

law in violation of Article I, Section 9, Clause 3 of

the U.S. Constitution, and when applied by the states

is a Violation of Article I, Section 10, Clause 1 of the

U. S. Constitution.

Whether 50 U. S. (’. §§841 and 842 violates freedom

of speech, press, assembly and petition guaranteed

by the First Amendment to the U. S. Constitution.

Whether 50 U.S. C. §$841 and 842 violates due proe-

ess as protected by the Dne Process Clause of the

Fifth Amendment to the U.S. Constitution by not

being reasonably restricted to the evil which it pur-

ports to control.

3. Whether 50 U.S. C. $841 and $42 violates procedural

due process as protected by the Due Process Clause

of the Fifth Amendment to the U. S. Constitution by.

depriving an organization of liberty and property

without affording those affected an adversary hear-’

ing, aglequate notice of the charges, the right to

couse, the right to present evidence, the right to

confront and cross-examine witnesses, the right to a

judicial determination and written findings of fact,

and the right to a written appeal.

Whether the action of the appellees in refusing to

accept the nominating petitions from the appellants

denied them due provess of law and equal protection

of the laws in that-the deprivation of the right of the

citizens of Minnesota to vote is a violation of due

process and equal protection of the laws. |

Whether the final order of the three-judge court dated

July 14, 1969 denies appellants equal protection of

the laws by requiring the appellants to follow addi-

tional procedures not required of other political candi-

dates by making it necessary that the candidates

initiate a lawsuit each and every time they wish to

appear on the Minnesota General Election ballot.

9. Whether 50 U. S. C. 94841 and 842 is in fact within ~

the legislative power of Congress in that Article II,

Section 1, Clause 2 of the U. S. Constitution limits

the power of the federal government from interfering

with the qualifications of federal presidential electors.

Statement of the Case

In accordance with M.S. A. 202.69, the Communist Party

of Minnesota secured the signatures of over two thousand

eligible voters of the State of Minnesota on a petition

nominating the presidential and vice-presidential candi-

- dates of the Communist Party, U. S. A., appellants Char-

lene Mitchell and Michael Zagarell, which entitled the

names of those candidates together with their party desig- .

nation -to be placed on the Minnesota General Election

ballot for the 1968 election. The appellants, Elmer Bor-

man, Rose Ik. Bruns, Obadiah Cummins, James Erickson,

Nels Gudbrandson, Vernon Hartwig, Clara Jorgensen,

Trygve Larsen, Carl Lund, and-Betty M. Smith, were also

named on the nominating petition as candidates for the

office of presidential elector (Affidavits of : Betty M. Smith,

September 11, 1968; Michael Zagarell, September 10, 1968;

James Erickson, September 10, 1968; Elmer Borman, Sep-

tember 10, 1968; Trygve Larsen, September 10, 1968: Kar!

Sorg, September 10, 1968).

Within the time limit set by Sines Statute 202. 12),

the nominating petition, with 2,394 signatures, was pre-

sented to appellee, Secretary of State of Minnesota, Joseph

L. Donovan, for filing. Upon the advice in an official written

opinion of the appellee, Attorney General of Minnesota,

Douglas M. Head, dated September 9, 1968, the Secretary

of State refused to accept the nominating petition for filing

(Affidavit of Lynn S. Castner, September 11, 1968; written

refusal of appellee Secretary of State Donovan, September

9, 1968).

The written opinion of the State Attorney General stated

that the Communist Control Act of 1954, 50 U. S. C. §§841

and 842, bars the Secretary of State from accepting and

filing the nominating petition submitted by the Communist «

Party of Minnesota and the Communist Party, U.S. A. ~

(Affidavit of Lynn 8. Castner, September 11,1968).

The appellants then brought an action in the court below

seeking a temporary and permanent injunction requiring

_ appellee Secretary of State Donovan to accept and file the

aforesaid nominating petition and to include the names of

appellant candidates Charlene Mitchell and Michael Zaga-

rell together with their party designation on the November

5, 1968 General Election ballot. A declaratory judgment

was also sought to declare the Communist Control Act of

1954, 50 U.S. C.$$841 and 842, unconstitutional and void in

that it violates the following provisions of the United States

Constitution: Article ‘1, Section 9, Clause 3; Article 1,

Section 10, Clause 1; Article Il, Section 1, Clause 2; Article

IV, Section 2, Clause 1; Article IV, Section 4; and the First.

Fifth, Tenth, Twelfth, and Fourteenth Amendments (Com-

plaint). .

Chief District Judge Edward J. Devitt notified the

United States Attorney General of the constitutional

questions involved as required by 28 U. 8. C. §2043 on Sep-

tember 24, 1968 (Notice to U. S: Attorney General, Septem-

ber 24, 1968).

United States Attorney for the District of Minnesota,

Patrick J. Foley, ‘appeared amicus ciriae and urged that

the Act is meant to disable the party as a party only and

not its members, and he suggested that the right of Mitchell

and Zagarell to appear on the ballot, and the right of the ©

nominees for presidential electors to be credited with the

votes cast for Mitchell and Zagarell, depended in no degree

on their status as nominees of the national or local Com-

munist Party. He argued that, as a matter of Minnesota

law, Mitchell and Zagarell are entitled to stand for office

because their names have been submitted in a timely

petition signed by the requisite number of qualified voters,

and concluded that no “right, privilege or immunity” of the

Communist Party as such is involved in this lawsuit. It

was therefore his view that the Communist Control Act of

1954 did not prohibit the Secretary of State from accepting .

. the nominating petitions and including the nominees upon

the ballot as candidates, of the Communist Party (Opinion

of the three-judge court, October 2, 1968, Appendix).

He also cited the “familiar rule that the decision of con-

stitutional questions should be avoided where fairly

possible,” Communist Party of the U. 8S. A. vy. Catherwood,

367 U.S. 389 (1961), and urged that the court should hesi-

tate long before adopting an interpretation that requires

resolution of “difficult constitutional questions.” 367 U. $

at 394. The brief of the United States admitted the serious-

ness of many of the appellants’ constitutional challenges to —

the law. Claims that the law is a bill of attainder, that it

unjustifiably abridges First Amendment: rights and the

rights to vote and to run for elective office, and that Con-

cress lacks power to establish qualifications for presiden-

tial electors are recognized as being substantial and raising

difficult constitutional ‘questions (Opinion of the three-

judge court, October 2, 1968, Appendix).

The three-judge court granted a temporary injunction

on October 2, 1968, reported as Mitchell v. Donovan, 290 F.

Supp. 642 (D. Minn. 1968), which ordered the appellee

Secretary of State Donovan to accept the appellants’

- nominating petition and to place the named candidates to-

gether with their party designation on the November 5,

1968S general election ballot. The appellee Donovan com-

plied, and the appellant candidates’ names did appear on

the ballot i in Minnesota as ordered.

The appellants appeared on the November 5, 1968 general

election ballot with other minority party candidates and

the following votes ‘were received by minority party.

candidates in the election:

Wallace and Griffin, American Party, Nominated by

Petition, 66,931 votes;

- Holstead and Boutelle, Socialist Workers’ Party,

Nominated by Petition, 808 votes; |

Blomen and Taylor, Industrial Government Party,

Nominated by Petition, 285 votes ;

Mitchell and Zagarell, Communist Party, U. S. A.,

Nominated by Petition, 415 votes;

Cleaver and Terry, Peace and Freedom Party,

Nominated by Petition, 935 votes;

McCarthy, Nominated by Petition, 585 votes.

1,606,307 Total Ballots

170 Scattered Votes

(Affidavit of Assistant Secretary of State Forrest Talbott -

in support of motion to dismiss, November 8, 1968.)

After the November 5, 1968 general election, the appel-’

lants moved to amend the complaint, adding paragraphs

stating that the Communist Party of Minnesota would

participate in future Minnesota election. The appellees

moved to dismiss the complaint on the ground of mootness

(Appellant motion to amend complaint, October 9, 1968;

affidavit of Betty M. Smith, November 2, 1968).

' The three-judge court granted the motion to amend the

complaint and the motion to dismiss on July 14, 1969 with-

out consider ing the merits of appellants’ claims, except in

the granting “of the temporary relief (Opinion of the three-

judge court, July 14, 1969, Appendix).

The three-judge court did not adopt the position of the’

U. S. Attorney, nor did it pass, on the merits of the ap-

. pellants claims in its’ granting of temporary relief (Opinion

of the three-judge court, October 2, 1968, Appendix).

The Questions. Presented Are Substantial

1. A court cannot grant temporary relief and then

claim that the granting of the temporary relief

causes the original action to become moot and

not an actual controversy when a federal statute

remains in effect which can be used to inhibit

appellants’ electoral activities.

;Though the election in 1968 in which the appellant

candidates were on the bailot is a past event, the Com-

munist Control Act of 1954, 50 U.S. C. 60841 and 842,

retains the same force and effect as it had prior to that

election. Nq formal judicial decision on the merits of the

appellants’ constitutional claims has been made which will

govern future application of said statute to appellants’

political plans. Appellees are thus free.to repeat their past

conduct and continue to hold that the Communist Control

Act of 1954 prohibits allowing the candidates of the Com-

munist Party from appearing on the ballot.

Not’ only are appellees free to continue their past in-

terpretation but, in a hearing before Chief Judge Devitt on

November 25, 1068, after the election, concerning appel-

lants’ motion to amend .their complaint and appellees’

motion to dismiss, the then Solicitor General of Minnesota,

Richard Kyle, representing the appellee Attorney General

of Minnesota, stated that the appellee Attorney General

will continue to hold that 50 U.S. C. 4°S41 and 842 prohibits

Communist Party candidates from appearing on Minnesota

ballots : ,

“The Court: On another subject, | notice that

counsel's affidavit says on information and belief he

has learned that you, or the attorney general, are go-

ing to persist in your viewpoint so that if some other

Communist affiliated people file, you are going to take

the same position. .

Is there any basis for this information and belief?

Mr. Kyle: I think there probably is. At least there

is no new case law which has come down which would,

as far as | am concerned, dictate a different result,

ultimately” (Transcript of hearing, November 25, 1968,

pp. 7-8). .

Moreover, in an official published opinion of the appellee

Attorney General, the Attorney General ruled that 50:

U. S. C. §§841 and 842 bar Commiunist Party candidates

from the ballot and said, “However, any doubts relative

to this matter can only be finally resolved by the courts

pursuant to appropriate legal proceedings.”

This Court stated in Moore v. Ogilvie, 89 8. Ct. 1493,

1494 (1969), that the fact of the past occurrence of an elec-

tion did not require dismissal of a complaint based on

official practices in that election where there was a strong

indication of future repetition:

“Appellees urged in a motion to’dismiss that since the

November 5, 1968 election has been held, there is no

’ possibility of granting any relief to appellants and that

the appeal should be dismissed. But while the 1968

election is over, the burden which MacDougall v. Green,

supra, allowed to be placed on the nomination of

. nominees for statewide offices remains and controls

future elections, as long as [Illinois maintains her

present system as she has done since 1935, The problem

’ is therefore ‘capable of repetition, yet evading review,’

Southern Pacific Terminal Company v. Interstate Com-

merce Commission, 219 U. 8, 498, 515.”

Though the appellant candidates did appear on the Min-

nesota General Election ballot on November 5, 1968, as

they desired, only the order of the court below made that

event possible. But for that order, the appellees, Minnesota

Attorney General and Minnesota Secretary of State, would

have adamantly continued to refuse to accept appellants’ —

petition for nomination and to place appellant candidates’

names on the ballot. Their acquiescence to appellants’

requests was solely due to the court order below.

In Gray ¥. Sanders, 372° U.S. 368, 375 (1963), this Court

stated, in reference to a procedurally similar circumstance :

“Moreover, we think the case is not moot by reason of

the fact that the Democratic Committee voted to hold

the 1962 primary on a popular vote basis. But for the

injunction issued below, the 1962 Act remains in force; .

and if the complaint. were dismissed it would govern

future elections. In addition, the voluntary abandon-

ment of a practice does not relieve a court of adjudicat-

ing its legality, particularly where the practice is

deeply rooted and longstanding. For if the case was

dismissed as moot appellants would be ‘free to return

to... [their] old ways.’ United States v. W. T. Grant

Co., 345 U. 8. 629”.

See, ¢.g., Bohler v. Lane, 204 F. Supp. 168, 173 (D. Fla.

1962); Morris v. Williams, 149 F. 2d 703, 708 (8th Cir.

1945); Heilberg v. Fira, 236 ¥. Supp. 405, 407 (N. D. Cal.

1964); Friends v. United States, 388 F. 2d 579, 581 (D. C.

Cir. 1967); and Tyson v. Cages, 363 F. 2d 742, 743 (5th Cir.

1966).

The position maintained by the’ appellee Attorney

General is the result of an interpretation of an Act of Con-

gress which is still in effect and force. hus, the Com-

munist Control Act of 1954, 50 U, S. C. §§841 anc 842, pro-

- vides an independent basis for the appellees’ official position

and, thereby, establishes a “firmly embedded” policy.

The uncontradicted affidavit of Mrs. Betty M. Smith,

stating that the Communist Party will participate in future

Minnesota elections, indicates that a controversy still exists

which requires judicial resolution to prevent an identical

_ repetition of events at the next election (Affidavit of Betty

M. Smith, November 22, 1968).

This court has consistently granted review and decided

election cases after the November 5, 1968 general election.

. Brockington ~. Rhodes, cert. granted February 24, 1969,

37 L. W. 3301; Allen vy. State Board of Elections, Fairley

v. Patterson, Bunton v. Patterson and Whitley v. Williams,

393 U.S. 544 (1969): Moore v. Ogilric, 394 U. S. 814 (1969)

(May 6, 1969); Hadnott v. Amos, 394 U.S. 358 (1969) ; and

Hall v. Beals, probable jurisdiction noted May 5, 1969.

The three-judge court readily allowed the appellants’

motion to amend the complaint. The three-judge court dis-

tinguished election cases in the U. S. Supreme Court fol-

lowing the November 5, 1968 election as cases involving

firmly embedded state policies as expressed in the statutes

in the states involved (Opinion of the three-judge court,

July 14, 1969, Appendix).

_ This case involves a firmly embedded state policy to

bar Communist Party candidates from the’ ballot: The

appellee Attorney General published an opinion, which will

certainly be followed by all state election officials, advising

that 50 U. S. C. §6841 and 842 bars Communist Party

candidates from the ballot. While Attorney General opin-

ions are not binding, they will be followed by all state

officials unless the state official wishes to challenge the rul-

ing by court action. It is quixotic to think that any state

official could possibly have an interest in defending Com-

munist Party candidates’ rights to appear on the ballot,

and instituting lawsuits on their behalf. Therefore, unless

the Communist Party candidates are allowed judicial

resolution of the merits of their claims, the appellee Attor-

ney General ruling will, practically speaking, have the

force of a statute. Moreover, the appellee Attorney Gen-

eral, in his published opinion, called for judicial resolution

of the questions. ,

The three-judge court in granting temporary relief did

not adopt the U. S, Attorney’s position that 50 U. S. C.

§§841 and 842 does not bar Communist Party candidates

from the ballot, and there is authority in a case in another

state, the only opinion interpreting 50.U. 8S. C. 94841 and

842, in regard to Communist candidates, ruling that state

Communist Party candidates are barred from the ballot.

Salwen vy. Rees, 108 At. 2d 265 (1954).

Phe three-judge court, in its opinions of October 2, 1968

and July 14, 1969, acknowledged that there are serious con-

stitutional objections to 50 U. S. C. §§841 and 842; the

‘U.S. Attorney in his amicus curiae brief to the three-judge

court admitted that there are serious constitutional objec-

tions to 50 U.S. C. $$841 and 842; hnd Mr. Justice Harlan,

in the only case in this Court dealing with 50 U. S. C.

§$841 and 842,.Communist Party, U. S. A. v. Catherwood,

367.-U. S. 389 (1961), admitted that there were serious

constitutional objections to 50 U. S. C. $4841 and 842. The

merits of appellants’ claims should he determined.

“@ |

2. The Communist Control Act, 50 U. S. C. §§841

and 842, is an unconstitutional bill of attainder. ©

The Communist Control Act of 1954 sets out a Con-

gressional finding that the organization entitled the Com-

munist Party of the United States is guilty of membership

, and ‘participation in a foreign-controlled seditious con-

spiracy. 50.U.S. C. §841. Upon such finding, it terminates

all rights, privileges and immunities of that named organ- ©

ization. 50 U.S. C. §842.

A bill of attainder las been defined as a legi-lative

pronouncement that a particular named person or a group

of persons must be punished for committing certain acts.

Punishment has-been deemed to include deprivation of

rights and privileges available to other citizens. Cummings

v. Missouri, 71 U. S. (4 Wall.) 277, 321, 323, 326, 18 L. Ed.

356 (1867); Ex parte Garland, 71 U.S. (4 Wall.) 333, 18 L.

Ed. 366 (1867); United States v. Lorett, 328 U.S. 303,

314-316 (1946): and United States v. Brown, 381 U.S. 437

(1965). ,

This Court has held that an act which specifically names

the Communist Party and withholds some right or priv-

ilege from members of that named group available to

others is a bill of attainder. United States v. Brown, supra.

In commenting on Communist Party of the United States

v. Subversive Activities Control Board, 367 U.S. 1 (1961),

the Brown Court stated: “A majority of the Court rejected

the argument that the Act was a bill of attainder, reason-

ing that Section 3. does not specify the persons or groups

upon which the deprivations set forth in the Act are to

be imposed, but instead sets forth a general definition. ...”

367 U. 8S. at 451.

The majority in Communist Party, U. S. A. vy. SACB,

supra, clearly agreed that if the Act had applied to the

Communist Party by name, it would have been an illegal

bill of attainder. It is clear that under the prior decisions

of the Court the Communist Control Act should be declared

an unconstitutional bill of attainder.

In the only case to consider the constitutionality of the

Communist Control Act of 1954, 50 U. S. C. 96841 and 842,

this Court in Communist Party, U. S. A. vy. Catherwood,

supra, held that the Act did not intend to prohibit the

Communist Party from being an employer, and thus the

constitutional questions were not decided.

3. The Communist Control Act, 50 U. S. C. §§841

and 842, is an unconstitutional ex post facto law.

An ex post facto law has been defined as a law which .

imposes punishment for activity which was not punishable

at the time it was committed. Cummings v. Missouri, supra.

In Cummings, an oath which required persons engaged in

many professions in Missouri after the Civil War to state, -

among other things, that the affiant had not engaged in

any past conduct hostile to the United States, was held

to be unconstifutional as an illegal ex post facto law. -

The Court held that a deprivation of rights, in that case

the right to pursue one’s profession, was punishment and

the statute was therefor an ex post facto law. |

50 U.S. C. §6841 and 842 deprives the Communist Party

of the- United States of all rights, privileges and im-

munities, thus constituting a punishment under the above

eases, solely on the basis of a legislative determination

based upon supposed past conduct of that named organ-

ization. Therefore, the Act is an ex post facto law pro-

hibited by the Constitution.

4. The Communist Control Act, 50 U. S. C. §§841

and 842, violates freedom of speech, press, assem-

bly and petition.

Minority political parties utilize the electoral forum to

espouse their political ideology and to propose solutions

for the problems that face society. By being able to par-

ticipate in formal election procedures, they can attain a

' larger and more attentive audience than they could through

use of other less effective vehicles for public debate.

This Court has often stated that the First Amendment

was designed to provide the widest and most complete

dissemination of pertinent information to the public so that

the electorate can promote a viable governmental system

through well informed choices of public officials and repre-

sentatives. Associated Press v. United States, 326.U.S. 1

(1944): Stromberg v. California, 283 U. S. 35 (1931).

Fundamental to participation in electoral politics is the

right to assemble together for a common purpose or dis-

cussion of public matters. “Effective advocacy ... is un-

deniably enhanced by group association”. National Asso-

ciation for the Advancement of Colored People v. Alabama,

_ 357 U.S. 449, 460 (1958). i

Official action designed to restrain operation of these and

related rights has a “chilling effect” on speech, and on the

entire electoral process itself.

5. The Communist Control Act, 50 U. S. C. §§841

and 842, violates due process.

Governmental regulation must have a real and substan-

tial relation and be restricted to the evil with which it

claims to contend. Nebbia vy. New York, 291 U. S. 502,

525 (1934); Butler v. Michigan, 352 U. S. 380, 383 (1957).

The Act purportedly is designed to protect the national

security from activities which constitute a clear and pres-

ent danger to the United States. However, the Act is not .

restricted to prohibition or control of dangerous activities

but denies the Communist Party all its rights, including

the right to engage in lawful, peaceful conduct such as”

participation in electoral polities.

A statute must be “narrowly drawn to define and punish

specific conduct as constituting a clear and present dan-

ger’to a potential interest of the state.” Cantwell y. Con-

necticut, 310 U. S. 296, 311 (1940); Elfbrandt v. Russell,

384 U. S. 11 (1966). Legislative abridgment of funda-

mental personal rights must be narrow and consistent with

the least drastic means to achieve a valid ‘purpose. Shel-

ton v. Tucker, 364 U. S. 479 (1960); N. A. A.C. P. v. Ala-

bama, 377 U. kos 288 (1964); Aptheker vy. Secretary of

State, 378 U. S. 500 (1964).

The Act is vague, overbroad, not reasonably related to

the evil which it purports to control, and thereby violates

due-process of law.

6. The Communist Control Act, 50 U. S. C. ssea1

and 842, violates procedural due process.

This Court has consistently held that a governmental

denial of liberty or property must be preceded by certain

fundamental procedures of fairness. The Fifth Amend-

ment prohibits Congress from depriving an organization

of liberty or property without according it a hearing on

the charges against it which are relied upon to support

the deprivation. some Anti-Fascist Refugee Committee v.

McGrath, 341 U.S. 123 (1951). Minimally, a hearing must

be provided to determine the validity of alleged facts.

McFarland vy. American Sugar Refining Co., 241 U. S.

79 (1916) ; Manley v. Georgia, 279 U. S. 1 (1929); and Tot

. U. S., 319 U. S. 463 (1943). .

The Act does not provide any procedural safeguards

to those to be punished, not even a hearing. Instead, 50

U.S. C. §841 finds that the Communist Party of the U. S. -

is a criminal conspiracy designed to overthrow the U. S.

government, and 50 U. S. C. §842 deprives that organiza-

tion of liberty and property solely on the basis of legis- |

lative fiat.

7. The appellees’ action in refusing appellants’ nomi-

nating petition deprived appellants of due process

and equal protection of the, law.

An unfair discrimination operating to deprive someone

of the right to vote is a deprivation of due. process and

equal protection of the laws guaranteed by the Fifth and

Fourteenth Amendments. signed v. Carr, 369 U. S. 186;

— vi ene, 377 : U. S. 533 (1963) ; and Carrington

*, Rash, 380 U.S ” 99 (1965). ;

8. The dismissal of the complaint by the court below

deprives appellants of equal protection of the law

by requiring appellants to follow additional pro-

cedures not required of other political candidates.

This Court has held that a denial of equal protection

of the law résults from requiring certain political eandi-

dates or advocates of certain pieces of legislation to com-

ply with procedures not required of other candidates or

advocates, or to suffer certain burdens not required of -

those other candidates or advocates. Hunter v. Erickson,

393 U. S. 389 (1969); Reitman v. Mulkey, 387.U. S. 369

(1967); Anderson v. Martin, 375 U.S. 399 (1964).

Hunter v. Erickson, supra, struck down an amendment

to the Akron, Ohio city charter which required any ordi-

nance dealing with racial, religious or ancestral discrimi-

nation in housing to be approved by a referendum at. a

general or regular election before taking effect. This

amendment required additional procedures to be followed

in enacting this specific legislation, making it more difficult .

to enact this legislation as opposed to other legislation.

See also, Anderson v. Martin, 375 U. S. 399 (1964).

If the decision of the three-judge court dismissing the

complaint is allowed to stand, it will be necessary for

Communist Party candidates to initiate a fresh lawsuit

at the time of each and every election. With the inherent

time limitations in litigation, a strong possibility exists

that the merits of appellants’ contentions will not be

reached when further lawsuits are brought. Communist

Party candidates will have to file a lawsuit, be granted a

temporary injunction, and face dismissal of the suit after

the election. Though the Communist Party candidates

might still attain a position on the printed ballot, they

will. have to conform to this procedure of judicial inter-

ference which no other candidate need follow, which vio-

lates equal protection of the law.

9. The Communist Control Act of 1954, 50 U. S. C.

§§841 and 842, is not within the legislative power

of Congress in that Article II, Section 1, Clause 2

of the United States Constitution limits federal con-

trol over the qualifications of presidential electors.

Article II, Section 1, Clause 2 of the U. S. Constitution

provides:

“Each State shall appoint, in such Manner as the

Legislature thereof may direct; a Number of Electors, |

—.

equal to the whole number of Senators and Represen-.

tatives to which the State may be entitled in Con-

gress... .” :

This provision narrowly limits the power of the federal

_ government to interfere with the qualifications of presi-

dential electors. This Court has stated that the States

possess nearly exclusive control over the qualifications ‘of,

presidential electors. Fitzgerald v. Green, 1384 U. S. 377,

379, 380 (1890) and McPherson vy. Blacker, 146 U. S

35 (1902).

Of course the federal government does retain power to

control corrupt practices and to protect the right of all

citizens to vote in presidential elections without discrimi-

nation. However, these areas of control relate to protec-

tion of the electoral process itself, and of the constitutional

rights of the voters and office seekers. A prohibition of

members of the Communist Party from the ballot denies .

constitutional liberties of the electorate and the appellants.

CONCLUSION

Jurisdiction should be noted.

”

Respectfully submitted,

Lyxx S. Castxen

Minnesota Civil Libertics Union

025 Upper Midwest Building

Minneapolis, Minnesota 55401

Attorney for Appellants

> : ad .

Mevvis L. Weir

156 Fifth Avenue

New York, New York 10010

Of Counsel

APPENDIX

4 ‘

APPENDIX

Opinion and Judgment of Three-Judge Court

on October 2, 1968

UNITED STATES DISTRICT COURT

District or Mixxesora

Tuirp Division

No. 3-68-Civ-256

—_

Cuarctexe Mircuens, et al.,

; Plaintiffs,

vs.

Joseru L. Donovan, et al.,

Defendants.

——

Lyxx S. Castsxen, Minneapolis, Minnesota, attorney for

plaintiffs. |

Dovoras M. Heap, Attorney General of Minnesota, Ricitarp

Hi. Kyte, Solicitor General of Minnesota, Davin J.

Bynox, Special Assistant Attorney General of Minne-

xota, all of St. Paul, Minnesota, attorneys for defen-

dants. |

Parnwk J. Forty, United States Attorney for the District

of Minnesota, Minneapolis, Minnesota, as Amicus

Curiae.

Before:

Circuit Jupce Biackmun, Curer District Jupce Devitt,

and Disrricr Jupce NEVILLE.

Devirt, Chief District Judge.

This expression is occasioned by ‘the complaint of the

Communist Party candidates for President and Vice-Presi-

dent of the United States and others allied with them in

interest’ against Joseph L. Donovan who, as the Secretary

of State of Minnesota, is the public official charged with

the administration of the election machinery of the State.

and Douglas M. Head, Attorney General of Minnesota,

growing out of the refusal of Secretary of State Donovan

to accept for filing the nominating petition for the presi-

dential and vice-presidential candidates of the Communist

_ Party. oe ,

The plaintiffs request temporary and permanent relief

ordering Secretary of State Donovan to accept the ten-

dered nominating petition (which allegedly contains the

names of 2,394 qualified electors of the State of Minnesota),

and to place the names of the Communist Party candidates

on the 1968 general election ballot. Further relief is re-

quested in the form of a declaration of the inapplicability,

or in the alternative the constitutional invalidity, of the

Communist Control Act of 1954, 50 U. S. C. A. 6§841 and

842. This law is the apparent authority for the Secretary

of State’s refusal to accept the plaintiffs’ petition.

* The other plaintiffs are: The Communist Party of the United

States, the Communist Party of Minnesota, ten nominated can-

didates for the office of presidential elector, two petitioners for

such nominations, and an eligible voter of the State of Minnesota.

4 |

At a hearing held September 17, 1968, briefs were filed

and arguments heard relating to the jurisdiction of the

court over the subject matter of the controversy and the

necessity and propriety of convening a statutory three-

judge court. While answers to the questions. of jurisdie-

tion and the necessity of a statutory three-judge court are

not completely clear, the court, acting through a single

judge, has made an initial determination that jurisdiction

does exist, 28 U.S. C. A. §§1331, 1343, and that a statutory

three-judge court should be convened to further consider

the issues involved. 28 U. S. C. A. $$2282, 2284. Flast v.

Cohen, 392 U.S. 83,88 8. Ct. 1942 (1968).

Cireuit Judge Harry A. Blackmun of the Court of Ap-

. peals for the Kighth Cireuit, Chief District Judge Edward

J. Devitt, and District Judge Philip Neville, both of the

District of Minnesota, the judges designated under an-

thority of 28 U.S, C. A. $§2282 and 2284, heard oral argu-

ments on the issues on September 30, 1968, following no-

tice given on September 24, 1968 to counsel for all parties

and to the United States Attorney for the District of

Minnesota. In accordance with the provisions of 28 U.S

C. A. 2403, the Attorney General of the United States was

notified by the court that the constitutionality of the Com-

‘ munist Control Act of 1954, 50 U.S. C. A. $.S841 and 842,

was drawn in question, and was advised that he would he

permitted to intervene for the presentation of evidence, if

evidence were otherwise admissible in the case, and for

arguments on the question of the constitutionality of the

law. ; 7a

Extensive briefs have been filed on the questions of juris-

diction, the necessity that the matter be determined by a

statutory three-judge court, the granting of preliminary

relief, and the applicability of, and the constitutionality of,

the Communist Control Act of 1954.

It is not unlikely that a decision on the merits of this

matter would involve a determination of the constitutional-

ity of the Communist Control Act of 1954, 50 U.S. CG. A.

§$S41 and 842. Since the passage of that Act there has been

scant judicial or legislative consideration of its meaning

and seope. In essence, the law contains a finding that the

Communist Party and its adjuncts are a menace to the

United States and should be outlawed ($841), and ex-

presses a determination that the rights, privileges, and

immunities normally attendant upon such bodies. are ter-.

minated ($842). |

The interdiction is broad and general in its terms, and

jabs at the very_core of our traditional constitutional free-

doms. It is thus not a matter to be considered lightly. Its

breadth and generality render its applicability to situations

like the present a question not admitting of hurried solu-

tion. The results of a determination of the relevant issues

on their merits may well have far-reaching national effect.

The constitutionality of the Act is not settled, nor have the

issues apparently involved in this case ever received au-

thoritative judicial consideration. The Supreme Court of

the United States has interpreted the Act on only one occa-

sion. Communist Party of the U. S. A. v. Catherwood, 367

U.S. 389, 81 S. Ct. 1465 (1961). In that case a decision on

the constitutional question involved was avoided. But the

court did imply a criticism of “the vague terminology” of

$842 of the Act. The court observed that:

“The statute contains no definition, and neither com-

mittee reports or authoritative spokesmen attempt to-

give any definition, of the clause ‘rights, privileges and

immunities attendant upon legal bodies created under

the jurisdiction of the United States or any political

subdivision thereof.” 367 U. S. at 392, 393.

~The question of validity of the Act, while not passed upon,

was noted to contain “novel constitutional questions.” 367

U.S. at 393. These observations might well be taken as a

skeptical, if not jaundiced, view of the constitutional va-

lidity of the Act.

An examination of the expressions of the United States

Supreme Court in other cases involving the control of

allegedly subversive organizations, and cases in other

areas involving similar constitutional doubts, may well be

looked to as a harbinger of the probable view of the court

if called upon in an appropriate case to pass upon the con-

stitutionality of the Communist Control Act of 1954.

Because attempted legislative control of subversive

groups and activities often involves —— of funda-

mental constitutional-freedoms, the Supreme Uourt has re-

quired that the standards of clarity and specificity be ap-

plied with particular stringency to such statutes. At least -

two provisions of the Subversive Activities Control Act of

1950, sections which on their face are narrower and more

specific than the statute here involved, have been stricken

down as vague and overbroad. United States v. Robel, 389

U.S. 258, 88 S. Ct. 419 (1967); Aptheker v. Secretary of

State, 378 U. S. 500, 84S. Ct. 1659 (1964). See also, Note,

“Recent Developments in Communist Control Act Prose-

cutions,” 16 W. Res. L. Rev. 206 (1964).

In the case before us, issues involving rights of suffrage,

free speech, and free association are involved. Only the

most delicate control in such areas is to be tolerated.

Whitehill v. Elkins, 389 U. 8S. 54, 88 S. Ct. 184 (1967);

NAACP vy. Button, 371 U. 8S. 415, 83 S. Ct. 328- (1963) ;

Cramp Vv. Ba. of Publ. Instr. of Orange Cty., Fla., 368

U.S. 275, 82.8. Ct. 275 (1961). Legislative exclusions of

the sort here being considered may be bills of attainder.

United States y. Brown, 381 U.S. 437, 85-8. Ct. 1707

(1965). Ae. .

The complaint, affidavits, briefs, and the oral arguments

presented have raised substantial doubts regarding the

Act’s applicability and constitutional validity. These.

doubts are of sufficient proportion to warn that hurried

arguments and precipitous decision of the issues would be

unwise. |

A Memorandum for the United States as Amicus

Curiae,” has been filed over the signature of Patrick J.

Foley, United States Attorney, advising that in his view

the Communist Control Act is ‘inapplicable to this case.

He urges that the Act is meant to disable the Communist

Party as a party only and not its members, and he sug-

gests that the right of plaintiffs Mitchell and Zagarell to

appear on the ballot, and the right of the nominees for

' presidential electors to be credited with the votes cast for

Mitchell and Zagarell, depend in no degree on their status °

as nominees of the national or local Communist Party. He

argues that, as a matter of Minnesota law, Mitchell and

Zagarell are entitled to stand for office because their names

have been submitted in a timely petition signed by the

requisite number of qualified Voters, and concludes that no

“right, privilege or immunity” of the Communist Party as

such is involved in this lawsuit. It is therefore his view

that the Communist Control Act of 1954 does not prohibit

the Seeretary of State from accepting the nominating peti-

tions and including the nominees upon the ballot as candi-

dates of the Communist Party.*

The Government also cites the “familiar rule- that the

decision of constitutional questions should be’avoided where

fairly possible,” Communist Party of the U. S. A. v.

Catherwood, supra, and urges that we should “hesitate.

long” before adopting an interpretation that requires reso:

lution of “difficult constitutional questions.” 367 U.S. at

394. a

The brief of the United States admits the scriousness of

inany of the plaintiffs’ constitutional challenges to the law.

Claims that-the law is a bill of attainder, that it unjustifi-

ably abridges First Amendment rights and the rights to

vote and‘to run for elective office, and that Congress lacks

power to establish qualifications for presidential electors

are recognized as being substantial and raising difficult

constitutional questions. | | :

Because of the grave doubts which exist as to the con-

stitutionality of the Communist Control Act, and in light

of the amicus curiae position of the United States Attorney

as to the inapplieability of the Act to the situation: here,

and his strong suggestions regarding its constitutional in-

firmities, it would be unwise for us, on such short notier,

to attempt to resolve the issues on their merits. Addition-

ally, it should be noted that the Attorney General of the

United States, upon receipt and consideration of the statu-

tory notice sent to him pursuant to 28 U.S. C. A. ‘2403.

as to the pendency of the constitutional issues, may care

to intervene, offer evidence, and make argument as he has.

a right to do. He should be afforded sufficient opportunity

court, when presented with a similar probletn.

iat the Act reavhes only to the prevention of the

‘Communist Party.” from appearing on the ballot.

.16 N. J. 216, 108 A. 2d 265 (1954).

7 At least o7

has observed

specific label,

Salwen v. Rees

and time to present his views. See also, 28 U.S. C. A. §$516

and 517. | ao

But, time is of the essence here. If a decision on the

merits were not reached by October 7, 1968, probably the

last date when the ballots must be delivered to the printer,

the nominated candidates would not have a place on the

printed ballot for the November 5, 1968 general election,

and the plaintiffs, assuming some merit in their conten- |

tions, would be deprived of their individual constitutional

rights. The plaintiffs have also sought to show that the

lack of an expeditious resolution of the issues involved will

substantially impede their proposed electioneering . cam-

paign in Minnesota.

On the other hand, the defendants have not urged, nor is

there apparent, any grave or irreparable harm which would

result from the grant of the requested temporary relief

directing the placement of the Communist Party ticket on

the ballot pending final disposition of the issues. It has

heen there several times before with unimpressive voter

response.* | ;

‘Thus, while the court finds and concludes that possible

serious injury will aecrie to the plaintiffs if the names of

Charlene Mitchell and Michael Zagarell as Communist

Party candidates for President and Vice-President do not

appear on the printed ballet, it has.found no discernible ‘

* According to the records in the office of the Minnesota Secre-

tary of State, the Communist Party vote for President in Minne-

sota for the years 1924-1940 is as follows: .

Weal ee Voting

1924 William Z. Foster—Workers Party 4,427 835,002

1928 William Z. Foster—Workers Communist. 4,853 999,823

1932 William Z. Foster—Communist 6,101 1,003,009

1936 Earl Prowder—Communist . 2,574 1, 120, 179

1940 Earl Browder—Communist ; 2,711 1 257 491

ballot.

probable injury which the defendants or the. citizens of

Minnesota will suffer if these names are placed on the

A well-informed, intelligent electorate such as exists

in the State of: Minnesota undobutedly will be able fairly to

discern and make appropriate decision upon the merits of

the principles advocated by the ¢ communist Party eandi-

dates and their sponsors. |

Ir Is THEREFORE ORDERED

That the defendant, Joseph L. Donovan, as Secretary of

State of Minnesota, absent any prohibitive Minnesota law,

accept for filing the nominating petition of the plaintiffs

and, if upon examination thereof he determines that the

petition complies in all respects with the requirements of

the pertinent Minnesota statutes, he is directed to cause

the names of the plaintiffs, Charlene Mitchell and Michacl

Zagarell, as Presidential and Vice-Presidential candidates

of the Communist Party of the United States, to be placed

on the ballot for the November 5, 1968 general election.

This expression is intended to comply with Rule 52 of the

Federal Rules of Civil Procedure.

The Clerk is directed to return the nominating petition

to pense counsel.

Dated:

October 2, 1968...

Harry A. BrackmuN

Harry A. Blackmun, Cirewt Judge

“pDWaRD J. Devitt

Edward J. Devitt, Chief District Judae

Puivie NEVILLE

Philip Neville, District Judae

Nevius, District SIudge °

T concur in the action taken by ied court since it pane

purely temporary relief. Personal disagreement on my part

with the philosophy and teachings of Communism obviously

_ dots not furnish an answey to the question presented in

this lawsuit. Assuming, ar 1 do, the validity and truth of

the findings mule by Congress and keeited in the Com-

munjst Control Act of 14, the court, nevertheless is urged.

by plaintiffs to dedlare’the Act unconstitutional Congress

declared the Communist Party to be “an instrumentality of

a conspiracy to overthrow the Government of the United

States.” whose policies and prograths “are secretly pre-

veribed for it by the foreign leaglers of the workl Communist

movement.” [tk existence was found to be “a clear present

and continuing danger to the scenrity of the United States”

amd the statute eer esg “Therefore, the C ommunist, Party

should be outlawed "' The juertion of the validity of the

c ¢ ‘ommmunist Control Act goes to the vers Inv ed» of our con.

stitutional framework. . \

1 would prefer to bottom jurisdiction on 42 0 OS. C. (1083

(Civil Rights Xet) and 28 U.S.C. (1343 rather than on 28

S.C. Ua. Although insevoting cases, proof of the

monetary value of the denial of the right to vote t one or

to many people perhaps can or-at least might ‘ be

presumed to he worth the jurisdictional $10,000 amount,

sections 1983 and 1343 require no financial amount to, Jae

involved, It seems dear to me that the Seeretary Of State

here acted “under color of (a) statute” of Minnesota. The

action of the Secretary of State determining that a statute —

permitting filing as 2 a canlidate hy petition: «did not

nialeiunditiiaausiiaiie

‘mrs eC, seat.

* Minn. Stat, $202.09.

apply, for whatever reason, is acting under color of state

law. Faihire or refusal to apply a law is as much “action

under color of law” as is the reverse. Also | agree that a

three-judge court ix proper.

I take issue with the court's opinion insofar as it ex-

presses grave doubts as to the constitutionality of the Com-

munist Control Act. I do not mean to say that it is free

from all doubt. Further I believe that the United States

Supreme Court, if and when it considers this case, may

well conclude that if it permits the Communist Party to be

on the ballot little, if anything, will be left of the Com-

munist’. Control Act. Nevertheless | subseribe to the

temporary relief granted by this court because of the short-

‘hess of time, the inability fully to gtudy the problem and all

its facets, and the belief. that, halancing the equities, less

harin results from granting-the temporary relief than deny-

ing it.

Philosophically in a true democracy the majority should

rule and whatever it votes or determines should prevail. |

Yet inherent in thit concept are the seeds of self-destrue-

tion. Should the majority vote into power persons who

avowedly urge and effert the overthrow of the present form

of government, then no longer ix there a democracy or the

Republiean Form of government guaranteed to the states

by the United States Constitution.’ Under the “clear and

present danger” test prescribed by Holmes,’ Congress

* found, or at least expressed the fear, that such might

Philosophers and political scientists have pointed to the

“paradox of freedom” and have held to the view that the

' * US. Const, art. IV §4.

* Schenck ¥. United States, 249 1. 8, 47, ° (1919).

principle of freedom-cannot-require that one can make the

decision not to be free. It ix not freedoni to be allowed to

destroy freedom.’ It has been said that the best test of

truth is the power of thought to get itself aceepted in the

form of government should protect its freedom from those

who disbelieve in its theory and would abandon and deny

traditional civil liberties.

The court's opinion herein notes that the ates Court

has held restrictions on the activities of individual Com-

munists unconstitutional in situations where the statute

attempted to prohihit an avowed. Communist from working

in a defense plant * from holding an office in a labor union:

from obtaining a passport;’ and in another ease where

benefits were sought to be denied the Communist Party ax

an employer under state inemployment laws.” These cases

are, it seems to me, distinguishable, and relate to the move-

ment and citil rights of particular individuals and are quite

separate from and not precedent for the question of whether

by the ballot we should give our democracy the right by

democratic process to vote to destroy itself.

This most difficult question need not be and is not now

decided. I feel, however, that while doubts as to con-

stitutionality are not nearly as grave as the court's opinion

‘See Auerbach. The Communist Control Act of 1954, 24 v. cnt.

tL. kev. 173 (1956) containing a discussion at 168 et seq. on the

freedom to abdicate liberty. A number of writers holding generally

to this view are cited and quoted. See aleo Comment, The Com-

munist Control Act of 1954, 64 vate. +. 712, 738 (1955)

*U. 8. v. Robel, 389 U. 8. 258 (1967).

'T. 8. ¥. Brown, 381 U.S. 437 (1965).

* Aptheker ¥. Secretary of State, 378 U.S. 500 (1964)

* Communut Party ve Catherwood, 367 U.S. 389 (1961).

would indicate,” small harm can come from permitting the

candidates to be on the ballot for this particular election:

whereas if they are excluded and the court should be in

error in such a decision some persons will have ‘been

deprived of their right to be candidates and others of their

right to vote for such candidates. Therefore, 1 concur.

Dennis 6. United States, 341 VS. 494, 509 (1951), wherein

the Court said: yr si, ~e Sig

“If Government is aware that’a group aiming at its over-

throw is attempting to indoctrinate its members and to co n-

mit them to a course whereby they will strike when leaders

feel the circumstances permit, action by the Government is’

req 2 ag ‘ , , . , ;

Kut see Communist Party v. Control Board, 367 U.S. 1 (1961).

dimenting opinion of Justice Black at 137: a)

“I dé not believe that it ¢an be too often repeated that the

freedoms of speech, press, petition and assembly guaranteed

by the First Amendment must be accorded to the ideas we

hate or sooner or later they will be denied -to the ideas we

cherish... .” |

Opinion and Judgment of Three-Judge Court

on July 14, 1969

UNITED STATES DISTRICT COURT

District or Mixxesora—Tuirv Divisios

No. 3-08-Civ-256

app

CHarcexe Mircuens, et al.,

Plaintiffs,

—vVvs.—

Joseru L. Doxovas, et al.,

Defendauts.

Lyx» S. Castser, Minneapolis, Minnesota, attorney for

plaintiffs.

Doveias M. Heap, Attorney General of Minnesota, Ricnarp

H. Kye, Solicitor General of Minnesota, and Daviw J.

Bynox, Special Assistant Attorney General of Minne- °

sota, all of St. Paul, Minnesota, attorneys for de-

fendants.

‘Before:

Cirrevit Juver Buackmus, Coser District Jupce Devirr,

and District Jupce Nevitre.

Devitt, Chief District Judge.

We concern ourselves here with the propriety of enter-

taining that portion of plaintiffs’ complaint seeking declara-

~ °

tory relief based on issues arising from the conduct of the

1968 Presidential Election in Minnesota as it pertained to

candidates running under the banner ot the Communist

Party. Defendants move tor dismissal, asserting mootness,

This action, for injunctive and declaratory relief, was

commenced in September, 1968 hy Charlene Mitchell, the

Presidential candidate of the Communist Part y. and others,’

against Secretary of State Donovan and Attorney General

Head, of the State of Minnesota, The plaintiffs sought an

order requiring Secretary Donovan to place the names and

party designation of the Yommunist Party candidates for

President and Vice-President of the United States’ on the

hallot for the general election of November » 1968,

Additionally, the plaintiffs sought a declaration that the

Conimunist Contro! Act of 1954, 50 TLS. A. (°S41 and

S42, the ‘purperted ayithority for the defendants’ refusal

10 accept plaintifis’ nominating petition, ix inapplicable to

the présent situation, or in the alternative, is constitu.

tionally invalid. °

» In response to. the original complaint, probable juris-

dictionr-Was noted, 28 U. BC A. 51343, and a statutors

three-judge court Was convened, BU.8.C. A. $2282, 29R4.

‘to consider further the jsenes raised by the’ pleadings.

After oral arguments, ‘and study of briefs from the par-

ties and the United States Attorney as amicus curiae, the

court, in a memoranduny opinion and order dated October

2, 1968, granted temporary relief in the form ofan order

directing defendant Donovan, as Secretary of State of

' The other plaintiffs are: the Vice-presidential candidate of the

Comrounist Part#, the Communtet Party of the United States, the

Communist Party of Minnesota, teh nominated candidates for the

office of wresidential elector, two petitioners for such nominations,

and an eligible voter of the State of Minnesota. .

40)

Minnesota, to accept for filing the nominating petition of

plaintiffs, and upon a finding that the petition complied ~

in all respects with the .pertinent Minnesota statutes, to .

place the names of plaintiffs Mitchell and Zagarell, as

Presidential and Vice-Presidential candidates of the Com-

munist Party of the United States on the ballot for the

November 5, 1968 general-election. That Memorandum and

Order, containing a more detailed exposition of facts and

reasoning. is reported as Witchell v. Donovan, 290 F. Supp.

642 (D. Minn. 1968).

By affidavit with attached exhibits, it appears that-de-

fendant Donovan complied with the order of this court,

and that.the November 5, 1968 general election ballot con-

tained the names “Mitchell and Zagarell” with the

subdesignation “Communist Party USA/Nominated by

Petition.” * ;

On October 10, 1968, the plaintiffs moved to amend their

complaint by adding allegations that the Communist Party

plans to participate in Minnesota local, state, and national

elections which oecur after November 5, 1968, and that upon’

“information and belicf,” it appears that Attorney General

Head will continue to advise Minnesota election officials

that the Communist Control Act of 1954, 50 U. S. C. A:

64841, 842 bars the Communist Party or any candidates

running under its express endorsement from participating

in any and all Minnesota elections.

One weck after the November 5, 1968 general election the

defendants moved to dismiss the complaint on the ground |

that “the issues involved in this litigation have hecome

moot and that there is no longer any justiciable issue to

be tried before this court.”

;

?The plaintiff Mitchell and her running mate tallied 415 votes

* See eg., Moore v. Ogilvie, -.— V. 8S. ——. 89S. Ct. 1493, 37

In our view the issues raised by the original pleadings

are now moot since the plaintiffs’ nominating pctitions

were accepted and their names and their party designation

were placed on the ballot for the 1968-Presidential elections.

By their tendered amendment to the complaint, plain-

tiffs seek to have us rule for the future on the constitu-

tionality of the Communist Control Act of 1954, 50

U.S. C. A. §§841, 842, on the theory that Communist Party

candidates may seek some position on a Minnesota ballot

in some future election and that the person who is Attorney

. General of Minnesota at that time may take a position that

the provisions of the Communist Control Act of 1954 pre-

vent such filing.

We readily allow the motion .to amend the complaint,

yet view the issues thus shaped as inappropriate for ad-

judication and dismiss the complaint because, in our view,

such issues do not present a “controversy” as required by

the United States Constitution, Article II], and: the ex.

press language of the Declaratory J udgment Act, 28

U. S.-C. A. $2201.* oe

It is fundamental that the Declaratory Judgement Act

provided a judicial rémedy, but did not repeal the car-

dinal standard of federal jurisdiction that a federal court

may ‘not decide what is not a “case or controversy.” Mary-

land Casualty Co. y. Pacific Coal & Oil Co.. 312 U. S. 270.

61S. Ct. 510 (1941); Aetna Life Ins. Co. vy. Haworth, 200

U. S. 227, 57 S. Ct. 461 (1937). In Maryland Casualty,

the Court said:

*“In a case of actual controversy within its jurisdiction, except

with respect to Federal taxes, any court of the United States, upon

the filing of an appropriate pleading, may declare the rights and

other legal relations of any interested party seeking such declara-

tion, whether or not further relief is or could be sought. Any

such declaration shall be reviewable as such.”

“The difference between an abstract question and a

‘controversy’ contemplated by the Declaratory Judg-

ment Act is necessarily one of degree; and it would

he difficult, if it would be possible, to fashion a pre-

cise test for determining in every case whether there is

such a controversy. Basically, the question in each

case is whether the facts alfewed. under all the cir-

cumstances, show that there is a stbstantial contro-

versy, between parties having adverse legal interests,

-of sufficient immediacy and reality to warrant. the

issuance of a declaratory judgment.” 312 U.S. at 273.

’ That constitutional hurdle demanding thie existence of an

actual case or controversy was in no sense abated by the

Declaratory Judgment Act. In fact, the course of a fed-

eral litigant seeking declaratory relief is in a sense the

more exacting, for,

“the Declaratory Judgment Act was an authorization,

not a command. It gave the federal courts competence

to make a deelaration of righfs; it did not impose a’

duty to do so.” Public Affairs Assoc., Inc. v. Rick-

aver, 369 U.S. TIL, 112, 82.8, Ct. 580 (1962).

Put in another way, the Declaratory Judgment Act,

“is an enabling Act, which confers a discretion on the

courts rather than an absolute right upon the litigant.”

Public Ser. Comm'n of Utah v. Wycoff Co., 344 U.S.

937, 241. 73 S. Ct. 236 (1952).

Here are guideposts which the United States Supreme

Court has set as to when declaratory relief should be

cranted.

43 =

“(Wy)hen all of the axioms have been exhausted and

all the words of definition have been spent, ‘the pro-

priety of declaratory relief in a particular ease will

depend upon a circumspect sense of its fitness in-

formed by the teachings and experience concerning

the function and extent of federal judicial power.

While the courts should not be reluctant or niggzardly

in granting the relief in-the cases for which it is de-

signed, they must be alert to avoid imposition upon

their jurisdiction through obtaining futile or prema-

ture intervention, especially in the field of publie law.

A maximum of caution is necessary in the type of

litigation we have here. where a ruling is. sought

that would reach far beyond the particular case. Such

differences of opinion or conflicts of interest must be

‘ripe for determination’ as controversies over legal’

‘rights. The disagreement must not be nebulous or

contingent but must have taken on fixed or final shape

so that a court can see what legal issues it is deciding,

what effect its decision will have on the adversaries,

and some useful purpose to be achieved in deciding

them.” Public Ser. Comm'n of Utah v. Wycoff Co.,

supra, 344 U. S. at 243-4. ‘ ;

* Chief Justice Hughes expressed similar principles many years

hefore in Actna Life Ins, Co. v. Haworth, 300 U.S. 997 (1937)

as follows:

“The Constitution limits the exercise of the Judicial power

to ‘cases’ and ‘controversies.’ ‘The term “controversies,” if

distinguishable at all from “cases.” is <o in that it is less

comprehensive than‘the latter. and includes only suits of a

civil nature.” (citations omitted) .

. “A ‘controversy’ in this sense must he one that is appro-

_ priate for judicial determination. ... A justiciable controversy

is thus distinguished from a difference or dispute of a hypo-

thetical or ‘alstract character: from one that is academic or

moot... . The controversy must be definite and concrete,

44 ;

Applying these principles to this case, it appears to us

chat no issue is here ripe for decision; that a disagree-

ment, if it exists between the litigants, is nebulous and

eonjectural, not fixed and final in shape; and that no -use-

jul purpose would be served by a declaration of rights.

It is not at all certain that candidates will seek to run

on the Communist Party Ticket at the next or at sub-

sequent elections, albeit the affidavit of Mrs. Betty M.

Smith, the State Secretary of the Minnesota Communist

Party, alleges such future intention. From 1949 to 1968,

no person sought to run on the Communist ticket in Min-

nesota for any public office. Of course, it is certain that

future elections will be staged in Minnesota, but the. bare

certainty that future elections will be held is not enough.

Fair vy. Dekle, 367 F. 2d 377 (Sth Cir. 1966), cert. den. 386

U. S. 996. | |

But even assuming that some candidate were to run for

some office under the label of the Communist Party at-

some future election, it is not certain that at such future

election the then Attorney General of Minnesota will be

the same person who now holds that office or, if so, that

he will take the same legal position that was taken by the

Minnesota Attorney General in connection with the 1968

election. The present Minnesota Attorney General has not

said he will view the Communist Control Act of 1954 as

prohibiting persons from seeking ballot positions in future

elections. In view of the now expressed opinion of the

touching the legal relations of parties having adverse legal!

interests. ... It must be a real.and substantial controversy

admitting of specific relief through a decree of a conclusive -

character, as distinguished from an opinion advising what the

law would be upon a hypothetical state of facts.” 300°U. S.

at 239-241.

legal officers of the United States Government ‘that the

Communist Control Act of 1954 does not apply to the plain

tiffs, it is doubtful if the Attorney General of Minnesota

will presume to take a contrary position involving the in

terpretation ‘of this federal statute at.a future election.

The plaintiffs cite several decisions involving voting

rights cases, particularly some jist decided or now pend

ing in the United States Supreme Court’ as authority for

the proposition that this court should entertain and ad

judicate this case. In each of Fhe cited cases, however,

the plaintiffs were suffering under an adverse lower court

ruling, the appeals were all perfected prior to the No

vember 5, 1968 election, the issues were fixed and final:

in shape, and most important of all, these gases involve

firmly-imbedded state policies concerning election rights

as expressed in the statutes of the States involved.

There is no firmly-imbedded state policy in) Minnésota

as expressed by statute or otherwise af issue here, but

only the possibility of a future adverse legal opinion by

a then Attorney General of Minnesota on an uncertain

issue as yet unformed. The st: asinvolye dois a federa

not a state, one. As noted, the view of the chieMlegal Lofliees

of the United States, speaking through his United States

Attorney, is that the. constitutionalits of the Communes

Control Act of 1954 is not involved and, in his view, the ”

statute by its application does not prohibit: the plaimtitts

from the positions on the ballot whieh thes songelht

. bay e.g., Moore v. of ig i, loos SOS Ot THOR

U.S. L. W. 4389 (May 5, 1969); Hadno!t vo Amos, .8 ;

89 S. ict; 01 (1969) . ‘Wh nv. State Roard of Flector - st | HS

o44, 89S. Ct. 817 (1969) . Brockington vo Rhodes, probualte juris

diction bi 393 UL S. 1078, SOS. Ct 877 CO 196o

So, in summary, ,

1. The issue as originally framed is moot because the

election is over and plaintiffs were on the ballot as

requested.

2. As to the future, there is no certainty or finality as

to the issues sought to be adjudicated. because there is no

certainty as to whether any future candidates for office

in a Minnesota election may seek to run under the banner

of the Communist Party and if they do, that the issues

formed by their attempted filing may be the same as they

are in this lawsuit. Further, there is no certainty that the

issues sought to be adjudicated in the present lawsuit will

be sigtilarly viewed by the Attorney General of Minnesota

holding office at the time of a future election. The issues as

raised by the pleadings do not represent.any fixed or firm

state policy governing elections which should be examined.

In our view, therefore, the issues upon which decision is

requested here, are nebulous and contingent—not fixed and

final—as required by the Supreme Court.

3. At all events, no constitutional issue has been

definitely joined in the present lawsuit because the United

‘States Attorney General, charged with the duty of defend-

ing the constitutionality_of the statutes of the United

States, expressed the view that no constitutional issue was

present and agreed with the plaintiffs that a proper inter-

pretation of the law is that the plaintiffs were entitled to

be placed on the ballot at the 1968 election ‘as théy re-

quested. The United States Attorney General agrees with

the. plaintiffs’ view of the law: the Minnesota Attorney

General, by his motion for disniissal, does not care to con-

test the issue. In such a stance, who is there to oppose the

plaintiffs?

4. No useful purpose would be served by a declaration

of rights. .

In the words of Justice Brennan, in a most recent

decision of the United States Supreme Court, the con-

stitutional question, if one exists,

“ .. must be presented in the context of a specifie live

grievance.” Golden v. Zwickler, —— U.S. , 89S.

Ct. 956, 960 (1969). °

And, as the United States Supreme Court said in United

Public Workers of Amer, (CIO) vy. Mitchell, 330 U. 8S. 75,

67 S. Ct. 556 (1947) :

“The power of courts . ... to pass upon the constitution- °

ality of acts of Congress arises only when the interests

of litigants require the use of this judicial authority |

for their protection against actual interference. A

hypothetical threat is not enough.” 330 U.S. at 89-90.

All the plaintiffs assert here is a “hypothetical threat” of

a possible constitutional issue as yet unframed..

There is no “actual controversy” as is required by the

Constitution, by a long line of Supreme Court decisions,

and by the express wording of the Declaratory Judgment

ee So :

The complaint is therefore Dismissep.

- Dated: 7/14/69

Harry A. Biackmun, Circuit Judge

Epwarp J. Devirt, Chief District Judge

Puuip Neviie, District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.