Wilson v. United States, 19501-19503.

• Decision Date: 02 August 1966
• Docket Number: No. 19501-19503.,19501-19503.
• Citation: 369 F.2d 198
• Parties: Dagmar WILSON, Appellant, v. UNITED STATES of America, Appellee. Donna ALLEN, Appellant, v. UNITED STATES of America, Appellee. Russell NIXON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

369 F.2d 198 (1966)

Dagmar WILSON, Appellant, v. UNITED STATES of America, Appellee.

Donna ALLEN, Appellant, v. UNITED STATES of America, Appellee.

Russell NIXON, Appellant, v. UNITED STATES of America, Appellee.

Nos. 19501-19503.

United States Court of Appeals District of Columbia Circuit.

Argued January 18, 1966.

Decided August 2, 1966.

Mr. David Rein, Washington, D. C., with whom Mr. Joseph Forer, Washington, D. C., was on the brief, for appellants.

Mr. Robert L. Keuch, Attorney, Department of Justice, with whom Asst. Atty. Gen. J. Walter Yeagley, Messrs. David G. Bress, U. S. Atty., and Kevin T. Maroney, Attorney, Department of Justice, were on the brief, for appellee. Messrs. Frank Q. Nebeker and Allan M. Palmer, Asst. U. S. Attys., also entered appearances for appellee.

Mr. Gregory Hankin, Washington, D. C., filed a brief on behalf of Women Strike for Peace as amicus curiae, urging reversal.

Mr. Oliver Ellis Stone, Washington, D. C., filed a brief on behalf of Women's International League for Peace and Freedom (WILPF), et al., as amici curiae.

Mrs. Selma W. Samols, Washington, D. C., entered an appearance for National Committee to Abolish the House Un-American Activities Committee, as amicus curiae.

Before MR. JUSTICE REED, Retired^*, and DANAHER and LEVENTHAL, Circuit Judges.

LEVENTHAL, Circuit Judge.

These are consolidated appeals from convictions, under 2 U.S.C. § 192, for contempt of Congress for refusing to answer any questions at an executive session conducted by a Subcommittee of the House Committee on Un-American Activities on December 7, 1964. The Subcommittee sought to question appellants about their activities in connection with a campaign to persuade the State Department to grant a visa to a Japanese professor for the purpose of fulfilling speaking engagements in the United States. Appellants stated that they would answer questions at a public hearing, but refused to give any testimony at closed sessions.¹

We find it unnecessary to consider most of the contentions pressed by appellants.² In our view the convictions must be reversed because the decision by the Committee to cite appellants for contempt was not given the additional consideration within the legislative branch that is contemplated by the governing statute, 2 U.S.C. § 194.

The statute provides:

§ 194. Certification of failure to testify; grand jury action.

Whenever a witness summoned as mentioned in section 192 of this title fails to appear to testify or fails to produce any books, papers, records, or documents, as required, or whenever any witness so summoned refuses to answer any question pertinent to the subject under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee or subcommittee of either House of Congress, and the fact of such failure or failures is reported to either House while Congress is in session, or when Congress is not in session, a statement of fact constituting such failure is reported to and filed with the President of the Senate or the Speaker of the House, it shall be the duty of the said President of the Senate or Speaker of the House, as the case may be, to certify, and he shall so certify, the statement of facts aforesaid under the seal of the Senate or House, as the case may be, to the appropriate United States Attorney, whose duty it shall be to bring the matter before the grand jury for its action.

On December 7, 1964, when appellants refused to testify in executive session, Congress was not in session. On December 10, 1964, the full committee, in accordance with the reporting provisions of 2 U.S.C. § 194, transmitted to the Speaker a statement of facts with respect to each of the alleged contempts. The Speaker then certified these statements to the United States Attorney.

Upon the return of the House the Speaker informed the House that he had transmitted the statements "pursuant to the mandatory provisions" of 2 U.S.C. § 194. 111 CONG.REC. 24 (daily ed. Jan. 4, 1965). Apparently the Speaker's action was taken after consulting the House Parliamentarian, who advised that the Speaker had no discretion in the matter and that certification to the prosecutor was mandatory regardless of the Speaker's own private or official judgment on the question. See 111 CONG.REC. A592 (daily ed. Jan. 4, 1965).

The Government prosecutor stipulated at the trial that the Speaker understood the statute to make it mandatory upon him to certify the statements to the United States Attorney, and to leave him without any judgment or discretion in the premises. We think the Speaker erred in construing the statute to prohibit any inquiry by him, and that his automatic certification, under a disclaimer denying his jurisdiction to make any inquiry or take any different course, was invalid.

At the outset it may be observed that our consideration of the validity of the Speaker's certification in this case is required in the exercise of our judicial function and is in no sense an invasion of the prerogatives of Congress. We are not reviewing an exercise of discretion by a public officer, but rather determining whether the governing statute allows or requires that discretion be exercised. Compare United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954). "The interpretation of the meaning of statutes, as applied to justiciable controversies, is exclusively a judicial function." United States v. American Trucking Ass'ns, 310 U.S. 534, 544, 60 S.Ct. 1059, 1064, 84 L.Ed. 1345 (1940). That the statute involved is one pertaining to the conduct of the affairs of Congress does not remove its interpretation from the province of the courts. This conclusion follows a fortiori from United States v. Smith, 286 U.S. 6, 52 S.Ct. 475, 76 L.Ed. 954 (1932), where the Supreme Court unanimously reversed a construction given by the Senate to one of its own rules, stating that "as the construction to be given to the rules affects persons other than members of the Senate, the question presented is of necessity a judicial one." 286 U.S. at 33, 52 S.Ct. at 478. There is, of course, a presumption that acts of public officers are taken in accordance with applicable statutes. But that presumption of regularity may be overcome, e. g., by a showing that the acts were based on a misinterpretation of statutory law or in violation of prescribed procedures. Stearns Co. v. United States, 291 U.S. 54, 63, 54 S.Ct. 325, 78 L.Ed. 647 (1934); United States v. Chemical Foundation, 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131 (1926); Martin v. Mott, 25 U.S. (12 Wheat.) 19, 32, 6 L.Ed. 537 (1827).

The Government urges that we accept a literal reading of 2 U.S.C. § 194 to require automatic certification of the committee's statement of facts by the Speaker. The literal meaning of a statute cannot be followed where it leads to a result contrary to legislative intention as revealed by the legislative history or other appropriate sources. United States v. American Trucking Ass'ns, 310 U.S. 534, 542-543, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940). That is the situation in the case before us.

We may appropriately begin our discussion by considering the duty of the Speaker when the House is in session, because that has been the scope of the statute for the bulk of its life. The words of present 2 U.S.C. § 194 are just as mandatory on the Speaker when the House is in session as when it is not in session. Yet the practice of Congress since 1857, when R.S. § 104, the statutory predecessor of 2 U.S.C. § 194, was enacted, has been uniformly to the contrary. And this practice is in accordance with judicial construction.

It has been the consistent legislative course that the Speaker is not under a "mandatory" duty to certify the report of the committee, but on the contrary that the committee's report is subject to further consideration on the merits by the House involved. When the House is in session the Speaker does not automatically transmit the report of alleged contempt to the United States Attorney. Instead as a matter of routine a member of the committee offers a resolution for the consideration of the House involved. See generally BECK, CONTEMPT OF CONGRESS 195-240 (1959) collecting instances of contempt citations since 1857, and demonstrating beyond any doubt that the House and the Senate have consistently considered, and occasionally debated at length, resolutions authorizing the Speaker of the House or the President pro tempore of the Senate to certify under the statute. Votes have often been cast against such resolutions.

Recent House debate and voting on resolutions to certify contempt citations of KU KLUX KLAN officials for refusing to answer questions put them by the House Committee on Un-American Activities are instructive in this regard. See 112 CONG.REC. 1657-1730 (daily ed. Feb. 2, 1966). A resolution to recommit the contempt resolutions to a select committee "to examine the sufficiency of the contempt citations under existing rules of law and relevant judicial decisions" was considered at some length and defeated, 307-357. Id. at 1694. It was clear throughout the debate that the members of the House believed they were exercising an appropriate and necessary function in reviewing the Committee's determination that the witnesses were in contempt. See, e. g., remarks of Representative Mathias the following day: "We the entire House met yesterday as committing magistrates." 112 CONG.REC. 1993 (daily ed. Feb. 3, 1966).³

Since the act of one house cannot repeal a statute passed by both, it follows that this long-standing practice reflects the understanding of members of both the House and the Senate that 2 U.S.C. § 194 is mandatory on the Speaker or President pro tempore only in form, not in substance and fact, and that the committee involved is subject to an appropriate legislative surveillance on the merits of contempt citations. Th...