# Jurisdictional Statement — Mitchell v. Donovan > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1447%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 1970 - **Citation:** 398 U.S. 427 ## Text vo a Office-Supreme Coy a ; FILELI | ‘Bee Me C.URT. it, & ° F : , 0 1 1% JOHN F. DAVIS, CL Supreme Court 4 the ited States OcroBER TERM, 1969 0. $26 — 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 1. te cr 6. 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 12 17 18 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 ........ 9 19 20 ii 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, 21 21 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: ................ 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 3 | 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 4 = 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 iB «Rael ie tat ee ha 5) 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 6 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- 7. 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 8 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- 10 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). 12 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- 13 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.” 7 14 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- 15 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- 16 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. “@ | Ss 17 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. 18 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. 19 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). 20 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. 21 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). 22 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, | —. 23 equal to the whole number of Senators and Represen-. tatives to which the State may be entitled in Con- gress... .” : aa 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. 4 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 ‘ ** 2 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. $.S841 and 842, was drawn in question, and was advised that he would he permitted to intervene for the presentation of evidence, if evidence were otherwise admissible in the case, and for arguments on the question of the constitutionality of the law. ; 7a Extensive briefs have been filed on the questions of juris- diction, the necessity that the matter be determined by a statutory three-judge court, the granting of preliminary 28 relief, and the applicability of, and the constitutionality of, the Communist Control Act of 1954. It is not unlikely that a decision on the merits of this matter would involve a determination of the constitutional- ity of the Communist Control Act of 1954, 50 U.S. CG. A. §$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- 2 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 30 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). ee 7 At least o7 has observed specific label, Salwen v. Rees 32 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. 33 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 a 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. 3s 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). 3 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 marketplace. Many contend, however, that a democratic © 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). 37 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... .” | 38 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- ~ ° 39 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.” a, ; ; ?The plaintiff Mitchell and her running mate tallied 415 votes * See eg., Moore v. Ogilvie, -.— V. 8S. ——. 89S. Ct. 1493, 37 41 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.” 42 “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