Brandhove v. Tenney, 12430.

• Decision Date: 09 August 1950
• Docket Number: No. 12430.,12430.
• Citation: 183 F.2d 121
• Parties: BRANDHOVE v. TENNEY et al.
• Court: U.S. Court of Appeals — Ninth Circuit

183 F.2d 121 (1950)

BRANDHOVE v. TENNEY et al.

No. 12430.

United States Court of Appeals Ninth Circuit.

June 30, 1950.

Rehearing Denied August 9, 1950.

Martin J. Jarvis, Richard O. Graw and Elmer P. Delaney, all of San Francisco, Cal., for appellant.

Harold C. Faulkner, Wilbur F. Mathewson, Melvin, Faulkner, Sheehan & Wiseman, all of San Francisco, Cal., Fred N. Howser, Atty. Gen. of California, C. J. Scott, Asst. Atty. Gen., Fred B. Wood, San Francisco, Cal., for appellees other than Elmer E. Robinson.

McGuire & Lahanier, W. A. Lahanier, San Francisco, Cal., for appellee Elmer E. Robinson.

Before HEALY, Circuit Judge, and MATHES and DRIVER, District Judges.

HEALY, Circuit Judge.

Appellant sued under §§ 43 and 47(3) of Title 8 U.S.C.A. to recover damages for alleged violations of his civil rights.¹ With one exception the defendants (appellees) are members of what was known as the Tenney Committee of the California State Senate, empowered by a resolution adopted in 1947 to inquire into un-American activities. The remaining defendant is Mayor Robinson of San Francisco. The appeal is from a judgment of dismissal for failure of the complaint to state a cause for relief.

The complaint incorporates an extensive amount of evidentiary matter, bearing for the most part upon a hearing of the Tenney Committee (hereafter referred to as the Committee) before which appellant was summoned as a witness.² The pleading shows that on January 28, 1949 appellant circulated among the members of the California legislature, then in session at Sacramento, a protest against an appropriation for the continuance of the Committee's activities. The protest, or petition as it is termed in the complaint, charged that the Committee had "used" appellant "as an instrument to smear Congressman Franck R. Havenner as a `Red' when he was a candidate for Mayor of San Francisco in 1947, and that the Republican machine in San Francisco and the Campaign management of Elmer E. Robinson, Franck Havenner's opponent, conspired with the Tenney Committee to this end." The particulars of the charge are lengthy but unimportant here. While appellant was engaged in circulating his protest a subpena was served upon him directing him to appear as a witness before the Committee on the following day, January 29, at three o'clock in the afternoon. He appeared at that time with his counsel.³

Upon being sworn as a witness appellant gave his name, residence, and occupation, and then referred the Committee to his counsel, who objected to any further questioning. One of the grounds of the objection was that "The purpose of such questions has not been disclosed to Mr. Brandhove and the same are not for a legislative purpose or in aid of legislation." Other grounds were that appellant had been subpenaed because of the charges made in his petition to the legislature; that the Committee was not and could not be a fair and impartial tribunal; that it was engaged in a political and not a legislative investigation in attempting to acquit itself of appellant's charges; that a joint committee of the Assembly and Senate was the only proper body to investigate such charges; and that the Committee had itself vouched for appellant's veracity by releases and reports in the past. The objections were overruled by the Chairman, but appellant was instructed by his counsel not to respond to questioning. The Chairman then inquired of appellant, "Is it going to be your conduct that you are not going to answer any questions presented to you by the Committee?" to which the answer was, "On advice of counsel, I will not, no, sir."

Questions were then directed to appellant concerning his acquaintance with various named persons, and he was interrogated with respect to his relations with Communists and his affiliation with the Communist Party.⁴ All of the questions he declined to answer on the grounds already indicated. The interrogation was presently dropped and apparently the witness was permitted to leave the stand. In the subsequent course of the hearing Chairman Tenney remarked that "Mr. Brandhove has a criminal record." He thereupon made a lengthy statement for the record, in the course of which he recounted crimes with which he said appellant had been charged in various cities over a period ranging from 1930 to 1947, including, among other things, charges of sodomy, grand theft, burglary, malicious mischief, and defrauding an innkeeper. This statement is alleged in the complaint to have been false. Other derogatory matter put into the record by the Chairman included a reference to a newspaper article wherein an affidavit of appellant was termed "a tissue of lies." There was much more along the same line. Finally, Mayor Robinson was called and testified at length in refutation of the charges Brandhove had made against him.

During the course of the session the Committee resolved that a complaint be filed in the proper court charging appellant with a misdemeanor in refusing to answer questions. This course was followed and appellant was arrested on a complaint preferred by the Chairman and was confined in jail from February 1 to February 15, 1949. A trial of the charge before a jury on March 5, 1949 resulted in a disagreement, and the case was dismissed four days later on motion of the district attorney.

Appellant's complaint pieces together these proceedings and incidents, plus the sending by the Committee of two telegrams described in the footnote.⁵ The pleading then alleges that the various acts described were "done or participated in by said defendants with malice and intent to intimidate and silence plaintiff and deter and prevent him from effectively exercising his constitutional rights of free speech and to petition the Legislature for redress of grievances, and also to deprive him of the equal protection of the laws, due process of law, and of the enjoyment of equal privileges and immunities as a citizen of the United States under the law, and so did intimidate, silence, deter, and prevent and deprive plaintiff."

Counsel for appellees argue that this allegation amounts to no more than the conclusions of the pleader, and they claim that the evidentiary matter incorporated in the complaint belies the conclusions. We are unable to agree with the latter proposition. The conclusions are of ultimate fact and some of them appear not to be without a measure of support in the circumstances disclosed.

In such posture of affairs the case should proceed to trial. Of course, a jury or judge may conclude from the showing that the Committee did no more than make legitimate use of the power conferred upon it. The questions put to appellant, taken by themselves, seem to be unobjectionable, and they bear substantial relation to the general subject the Committee was empowered to inquire into. In these inquiries, too, it is possible to discern a purpose on the Committee's part of determining whether sworn information appellant had formerly given the Committee might still be relied on as true, or whether it should now be disregarded as false. We think, also, that the Committee, had it seen fit to do so, might with propriety have questioned appellant relative to the charges he had made against it. The California Court has...