Communist Party of the United States v. Subversive Activities Control Board (351 U.S. 115)/Dissent Clark

Mr. Justice CLARK, with whom Mr. Justice REED and Mr. Justice MINTON join, dissenting.

On November 22, 1950, the Attorney General petitioned the Subversive Activities Control Board for an order directing the Communist Party to register as a Communist-action organization, pursuant to the provisions of the Internal Security Act of 1950. On April 20, 1953, the Board unanimously directed the Communist Party to register, finding 'upon the overwhelming weight of the evidence * *  * (the Communist Party) is substantially directed, dominated, and controlled by the Soviet Union *  *  * and *  *  * operates primarily to advance the objectives of such world Communist movement.'

Nearly two years later, while the matter was before the Court of Appeals, the Communist Party filed a motion for leave to adduce additional evidence under § 14(a) of the Internal Security Act. The 'new evidence' attacked the credibility of witnesses Crouch, Johnson, and Matusow, 3 of the 22 witnesses for the Government. The motion charged that Crouch and Johnson had perjured themselves in their testimony in such other cases as United States v. Kuzma, United States v. Bridges, In re Burck, and United States v. Weinberg. It also charged that Matusow had recanted his testimony in Communist cases and was writing a book entitled 'Blacklisting (or Blackmailing) Was My Business.'

The Board opposed the motion, stating that the testimony of the three witnesses could 'be ignored in toto and the ultimate determination * *  * will remain amply supported by evidence both testimonial and documentary in character. * *  * The (Communist Party) would still be found a Communist-action organization by overwhelming evidence.'

The Court of Appeals denied the motion without opinion. However, in its opinion on the merits, the court pointed out that similar attacks had been made on the credibility of these as well as other witnesses before the Board. For example, in 194 pages of cross-examination before the Board, the Party charged that witness Johnson had committed perjury in Pennsylvania v. Nelson, In re Yanish, In re Dmytryshyn, United States v. Eisler, and in testimony before the Un-American Activities Committee. The 112-page cross-examination of Matusow likewise was largely devoted to charges of perjury before various boards and committees. Crouch was cross-examined for 810 pages, practically all of which was devoted to an attack on his credibility through his testimony in other proceedings. As the Court of Appeals concluded (96 U.S.App.D.C. 66, 223 F.2d 565), 'Full opportunity for cross examination of these witnesses was afforded at the hearing before the Board, and full opportunity was also afforded for the presentation of rebuttal testimony. * *  * Moreover the testimony of the witnesses against whom charges are said to have been made was consistent with and supported by masses of other evidence.' 96 U.S.App.D.C. 100, 223 F.2d 565. Not only did little of the cross-examination relate to the evidence offered on direct, but the Party introduced only three witnesses in rebuttal and none refuted any specific testimony of the witnesses now challenged. The Court of Appeals affirmed the issuance of the order by the Board.

The Communist Party brought the case here on April 13, 1955, by petition for certiorari. 349 U.S. 943, 75 S.Ct. 872. The relative unimportance of this motion in the eyes of the Party is shown by the fact that its 131-page petition devotes but 2 pages to a discussion of this point. The Party's brief devotes only 4 1/2 of its 270 pages to the motion. Still the Court now says the Court of Appeals 'erred' in its denial of the motion and remands the case directly to the Board for it to determine again the credibility of these three witnesses. It refuses to pass on the important questions relating to the constitutionality of the Internal Security Act of 1950, a bulwark of the congressional program to combat the menace of world Communism. Believing that the Court here disregards its plain responsibility and duty to decide these important constitutional questions, I cannot join in its action.

I have not found any case in the history of the Court where important constitutional issues have been avoided on such a pretext. Certainly Peters v. Hobby, 349 U.S. 331, 75 S.Ct. 790, 99 L.Ed. 1129, is no authority for this action, since that case could be and was finally disposed of without reaching the constitutional issues. Here the case will be finally decided only after our decision on the constitutional questions. The action today is taken merely for delay and can result only in the Board reaffirming the action. In fact it so advised the Court of Appeals and that court found that all of the testimony of the questionable witnesses was supported by 'masses of other evidence.'

The allegations of the motion itself are entirely inadequate in that they point to no particular testimony before the Board as being false. There is no offer to disprove any testimony given, and no fact at issue in the proceeding is controverted. As to Crouch and Johnson, the motion merely cites additional cases in which it is alleged that their testimony was conflicting. These allegations are purely cumulative of the witnesses' cross-examination before the Board. With regard to Matusow, the motion mentions only newspaper reports and a press release referring to the statements of certain persons that Matusow had told them that he had lied. Ignoring the obvious inadequacy of this allegation, we may take judicial notice of the two cases where Matusow submitted affidavits stating that he had lied during the trial, United States v. Jencks and United States v. Flynn. In the Jencks case, the trial judge concluded that Matusow had been paid by a Communist source to recant and that his original testimony was true. The motion based entirely on Matusow's recantation was denied. This was affirmed by the Court of Appeals, Jencks v. United States, 5 Cir., 226 F.2d 540, certiorari granted 350 U.S. 980, 76 S.Ct. 467. In the Flynn case, 130 F.Supp. 412, the trial judge denied a similar motion as to 11 of the 13 defendants. Two of the defendants in Flynn were granted a new trial only because Matusow had testified specifically to private conversations with these defendants which demonstrated their advocacy of the forcible overthrow of the Government. Matusow's general testimony against other defendants was not disturbed. These cases make it clear that, except for the special circumstances of two defendants in the Flynn case, the lower courts have not granted new trials in criminal proceedings despite the retraction by Matusow of specific sworn testimony given at the trials. See also United States v. Parker, 3 Cir., 103 F.2d 857. But these were criminal cases where proof of guilt must be beyond a reasonable doubt. Here, only a preponderance of the evidence is required.

Motions to adduce additional evidence under § 14(a) are similar to motions to adduce evidence under § 10(e) of the National Labor Relations Act, 29 U.S.C.A. § 160(e), and the scope of our review is the same. Such motions are addressed to the sound discretion of the Court of Appeals. In order to reverse we must find more than that the court below erred, because it 'must not only have been in error but must also have abused its judicial discretion.' National Labor Relations Board v. Indiana & Michigan Electric Co., 318 U.S. 9, 16, 63 S.Ct. 394, 399, 87 L.Ed. 579. In this case the motion itself was wholly inadequate and even if the testimony of all three challenged witnesses were omitted from the record the result could not have been different. There is no reasonable basis on which we could say that the Court of Appeals has abused its discretion.

I abhor the use of perjured testimony as much as anyone, but we must recognize that never before have mere allegations of perjury, so flimsily supported, been considered grounds for reopening a proceeding or granting a new trial. The Communist Party makes no claim that the Government knowingly used false testimony, and it is far too realistic to contend that the Board's action will be any different on remand. The only purpose of this procedural maneuver is to gain additional time before the order to register can become effective. This proceeding has dragged out for many years now, and the function of the Board remains suspended and the congressional purpose frustrated to a most critical time in world history.

Ironically enough, we are returning the case to a Board whose very existence is challenged on constitutional grounds. We are asking the Board to pass on the credibility of witnesses after we have refused to say whether it has the power to do so. The constitutional questions are fairly presented here for our decision. If all or any part of the Act is unconstitutional, it should be declared so on the record before us. If not, the Nation is entitled to effective operation of the statute deemed to be of vital importance to its well-being at the time it was passed by the Congress. I would decide the questions presented by this record.