364 U.S. 388 (1960), 336, Uphaus v. Wyman

Docket Nº:No. 336
Citation:364 U.S. 388, 81 S.Ct. 153, 5 L.Ed.2d 148
Party Name:Uphaus v. Wyman
Case Date:November 14, 1960
Court:United States Supreme Court

Page 388

364 U.S. 388 (1960)

81 S.Ct. 153, 5 L.Ed.2d 148




No. 336

United States Supreme Court

Nov. 14, 1960



For refusing to comply with a state court order to produce the names of persons attending his summer camp during 1954 and 1955 for use in an investigation by the Attorney General of New Hampshire on behalf of the State Legislature to determine whether "subversive persons" were then in the State, petitioner was adjudged guilty of civil contempt and ordered committed to jail until he complied. That judgment was sustained by the State Supreme Court and by this Court. He then appealed again to the State Supreme Court, claiming that, since his former appeal, the State Legislature had terminated the Attorney General's authority to make such an investigation on its behalf; but the State Supreme Court held that such authority had not been terminated.

Held: an appeal to this Court from that judgment is dismissed for want of jurisdiction, since that judgment is based on a nonfederal ground.

Reported below: 102 N.H. 461, 159 A.2d 160.

Per curiam opinion.


In view of the Court's decision in Uphaus v. Wyman, 360 U.S. 72, rehearing denied, 361 U.S. 856, the motion to dismiss is granted, and the appeal herein is dismissed for want of jurisdiction, in that the judgment sought to be reviewed is based on a non-federal ground.

Appeal dismissed.

BRENNAN, J., separate opinion


The New Hampshire Supreme Court has held in this proceeding that the New Hampshire Legislature still wanted Dr. Uphaus' answers on December 14, 1959, notwithstanding

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the omission from Laws 1957, c. 178, of the provision of Laws 1955, cc. 340 and 197, authorizing the Attorney General "to determine whether subversive persons . . . are presently located within this state," Wyman v. Uphaus, 102 N.H. 461, 159 A.2d 160, on [81 S.Ct. 154] denial of motion for bail, 102 N.H. 517, 162 A.2d 611. We are bound by the highest state court's construction of the pertinent New Hampshire statutes. We must therefore consider the substantiality of the federal constitutional questions presented on this appeal on the basis of that construction, and not upon the premise urged by Dr. Uphaus that the 1957 statute shows that the legislature, on December 14, 1959, no longer wanted him to produce the list of names. In consequence, while I remain of the view that the Court in Uphaus v. Wyman, 360 U.S. 72, incorrectly sustained the previous order of civil contempt made against Dr. Uphaus, see dissent at page 82, that holding, while it stands, also sustains the order challenged on this appeal. Solely under compulsion of that decision, I think that the appeal must be dismissed as not presenting a substantial federal question.

BLACK, J., dissenting

MR. JUSTICE BLACK, with whom THE CHIEF JUSTICE and MR. JUSTICE DOUGLAS concur, dissenting.

I concur in the dissent of MR. JUSTICE DOUGLAS, and agree with him that, since the New Hampshire law upheld by this Court in Uphaus v. Wyman, 360 U.S. 72, has now been changed, new federal questions are presented which cannot be dismissed as involving only the correctness of a ruling on local law, and that we consequently should not dismiss this appeal, but should note jurisdiction, grant bail, and hear arguments. The recent amendment withdrew the power, involved in the previous appeal, which authorized the Attorney General of New Hampshire "to determine whether subversive persons . . . are presently located within" the State, and thus took

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away the very power under which the Attorney General was acting when he demanded the names of guests at the summer camp in New Hampshire managed by the appellant, Dr. Willard Uphaus. Notwithstanding that fact, the New Hampshire courts have held that the State still has an interest in those names sufficient to justify the continued imprisonment of Dr. Uphaus for his refusal to comply with the demand to produce them.1 This appeal therefore raises federal questions as to whether this latter holding violates the Federal Constitution. I think that the Court's action today in treating those federal questions as insubstantial2 is wrong in at least two different respects.

First, I think this action is inconsistent with the Court's own test as set forth in its opinion on the prior appeal and there used to square the imprisonment of Dr. Uphaus with the First Amendment. That test was stated in these terms:

The interest of the guests at World Fellowship in their associational privacy having been asserted, we have for decision the federal question of whether the public interests overbalance these conflicting private ones.3

This required the Court to weigh the interest of those guests against the interest of the State, as broadly expressed by its legislature, in knowing

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"whether subversive persons . . . are presently located within" the State, a balancing process4 which there resulted in the conclusion that the state interest must prevail. Now, however, it is clear that the interest [81 S.Ct. 159] of the State so weighed no longer exists, and a new balance must be made if the invasion of "associational privacy" previously sanctioned is to be permitted to continue. But this the Court refuses to do, apparently on the theory that the present appeal is controlled by the previous disposition. It seems to me that "balancing" which refuses to take note of such an important change in the interest of the State is little balancing at all -- a mere illusion, in fact.

Secondly, it seems to me that the record as it now stands before this Court requires a reappraisal of the question whether the actions of the State of New Hampshire constitute a bill of attainder in violation of Art. I, § 10, of the Constitution. On the prior appeal, the majority of this Court held that the record as it then stood would not justify such a conclusion. The present record, however, presents new facts relevant to that issue. For here we are confronted with a situation in which the courts of New Hampshire have stated that it was the intention of the legislature of that State to permit the Attorney General to single out Dr. Uphaus and any others (if, indeed, there are any others) against whom investigative proceedings had already been commenced and to pursue those proceedings, not in furtherance of any general aim of the State -- that general aim, if it ever existed, has been abandoned by the amendment -- but apparently for the sole purpose of setting these people off for special treatment. What this special treatment is to be is clearly

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shown by the brief filed before this Court in this appeal by the State Attorney General himself, who administers the Act. That brief states unequivocally that

[t]hose who voluntarily and knowingly appear with, consult with, confer with, attend functions with and otherwise act in concert with Communists or former Communists in America cannot possibly have any reasonable right of privacy in regard to such activities. . . .5

In the light of all these new facts, the decision upon the former appeal is not and cannot properly be held to be dispositive of the question whether this record shows that New Hampshire is unconstitutionally imposing a bill of attainder upon Dr. Uphaus.

I think the summary dismissal of this appeal without even so much as the benefit of oral argument, when the abridgment of the rights of free speech and assembly is so obvious, is a sad indication of just how far this Court has already departed from the protections of the Bill of Rights, and an omen of things yet to come. Such retrogression, of course, follows naturally from the Court's recent trend toward substituting for the plain language of the commands of the Bill of Rights elastic concepts which permit the Court to uphold direct abridgements of liberty unless the Court views those abridgments as "arbitrary," "unreasonable," "offensive to decency" or "unjustified on balance,"6 for these concepts reduce the absolute commands of the Constitution to mere admonitions. I think it is time for all who cherish the liberties guaranteed by the Bill of Rights to look closely at the disastrous consequences upon those liberties which have resulted from the

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Court's use of such concepts. The present case graphically illustrates those consequences when it is stripped of the ambiguous legal formulations which have been imposed upon it and considered in the context in which it actually arose -- the conduct of Dr. Uphaus as an individual.

He is a citizen of this country by birth. Throughout the nearly seventy years of his life, evidently from early boyhood, [81 S.Ct. 160] he has been a deeply religious person. The record shows his active membership in and official service for various Methodist churches in the communities where he has lived. The value of that membership and those services is attested by affidavits filed by the pastors of those churches. The record further indicates, without dispute, that he is a man whose life has been dedicated to the principles of his religion. He holds a degree as a Doctor of Theology. He taught religious education at Yale University, and was associated with the Religion and Labor Foundation for a number of years. Over the years, his religious faith manifested itself in an increasing opposition to war. It was this belief which led him, in 1952, to become the Director of World Fellowship, Inc., a summer camp operated, he says, in the interest of promoting the ideas of pacifism.

Almost immediately upon his arrival at World Fellowship, Dr. Uphaus came under the fire of an investigation being conducted by the Attorney General of New Hampshire, apparently on the...

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