374 U.S. 109 (1963), 35, Yellin v. United States

Docket Nº:No. 35
Citation:374 U.S. 109, 83 S.Ct. 1828, 10 L.Ed.2d 778
Party Name:Yellin v. United States
Case Date:June 17, 1963
Court:United States Supreme Court

Page 109

374 U.S. 109 (1963)

83 S.Ct. 1828, 10 L.Ed.2d 778



United States

No. 35

United States Supreme Court

June 17, 1963

Argued April 18-19, 1962

Restored to the calendar for reargument June 25, 1962

Reargued December 6, 1962




Petitioner was summoned to appear as a witness before the House Committee on Un-American Activities, which was investigating infiltration of Communists into the steel industry. Petitioner's counsel telegraphed the General Counsel of the Committee, requesting that petitioner be permitted to testify in an executive session, because that would avoid "exposing witnesses to publicity." Without authorization, the Committee's Staff Director replied by telegram that the request was denied. At the beginning of the hearing several days later, petitioner's counsel tried to have these telegrams read into the record, but this was denied, and neither petitioner nor his counsel was permitted to discuss the subject. Without specifying this as the reason, petitioner refused to answer questions asked him by the Committee, and he was indicted for violating 2 U.S.C. § 192. At the trial, petitioner contended that the Committee had violated its Rule IV, which provides that witnesses shall be interrogated in executive session if a majority of the Committee believes that his public interrogation might "endanger national security or unjustly injure his reputation, or the reputation of other individuals," but petitioner was convicted and sentenced to a fine and imprisonment.

Held: On the record in this case, it appears that the Committee violated its own Rule IV by failing to give consideration to the question whether interrogation in public would injure petitioner's reputation and by failing to act on his request that he be interrogated in executive session, and petitioner's conviction for refusal to testify in public cannot stand. Pp. 110-124.

(a) The Committee's Rule IV is quite explicit in requiring that injury to a witness' reputation be considered, along with danger to national security and injury to the reputation of a third party, in deciding whether to hold an executive session. Pp. 114-115.

(b) Rule IV conferred upon witnesses the right to request an executive session and the right to have the Committee act upon such a request, according to the standards set forth in the Rule. Pp. 115-117.

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(c) That a witness may be questioned in public, even after an executive session has been held, does not mean that the Committee is freed from considering possible injury to his reputation. Pp. 117-118.

(d) It appears from the record that the Committee violated its own Rule in this case by deciding to interrogate petitioner publicly without giving any consideration to the question whether to do so would injure petitioner's reputation. Pp. 118-119.

(e) The Committee also violated its own Rule by failing to act upon petitioner's express request for an executive session, even though that request was directed to the Committee's General Counsel, instead of the Chairman. Pp. 119-121.

(f) The only remedy petitioner had for this denial of his rights under the Rule was his refusal to testify. Pp. 121-122.

(g) Petitioner's rights under Rule IV were not forfeited by his failure to make clear at the time he was questioned that his refusal to testify was based upon the Committee's departure from Rule IV. Pp. 122-124.

287 F.2d 292 reversed.

WARREN, J., lead opinion

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

This contempt of Congress case, stemming from investigations conducted by the House Committee on Un-American Activities, involves, among others, questions of whether the House Committee on Un-American Activities failed to comply with its rules, and whether such a failure excused petitioner's refusal to answer the Committee's questions.

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Petitioner Edward Yellin was indicted in the Northern District of Indiana on five counts of willfully refusing to answer questions put to him by a Subcommittee of the House Committee on Un-American Activities (hereafter Committee) at a public hearing. He was convicted, under 2 U.S.C. § 192, of contempt of Congress on four counts. He was sentenced to four concurrent terms of imprisonment, each for one year, and fined $250. The Court of Appeals for the Seventh Circuit affirmed. 287 F.2d 292. Since the case presented constitutional questions of continuing importance, we granted certiorari. 368 U.S. 816. However, because of the view we take of the Committee's action, which was at variance with its rules, we do not reach the constitutional questions raised.1

The factual setting is for the most part not in dispute. The Committee was engaged, in 1958, in an investigation of [83 S.Ct. 1831] so-called colonization by the Communist Party in basic industry. One of its inquiries focused upon the steel industry in Gary, Indiana, where petitioner was employed. Having information that petitioner was a Communist, the Committee decided to call Yellin and question him in a public rather than an executive session. The Committee then subpoenaed petitioner on January 23, 1958. His attorney, Mr. Rabinowitz, sent a telegram to the Committee's general counsel, Mr. Tavenner, on Thursday, February 6, 1958. The telegram asked for an executive session because "testimony needed for legislative . . . purposes can be secured in executive session without exposing witnesses to publicity." Since the Committee and

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Mr. Tavenner had left Washington, D.C., for Gary, the telegram was answered by the Committee's Staff Director. His reply read:

Reurtel (Re your telegram?) requesting executive session in lieu of open session for Edward Yellin and Nicholas Busic. Your request denied.

Richard Arens Staff Director

According to Congressman Walter, the Chairman of the Committee, Mr. Arens did not have authority to take such action.

Petitioner's counsel also sought to bring the matter to the Committee's attention when it commenced its public hearing the following Monday, February 10, 1958. His efforts to have the telegrams read into the record were cut short by Congressman Walter.2 Mr. Rabinowitz would not have been justified in continuing, since Committee rules permit counsel only to advise a witness, not to engage in oral argument with the Committee. Rule

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VII(B). In any event, Congressman Walter was not interested in discussing the content of the telegrams. From his sometimes conflicting testimony at trial, it appears he did not even know what the telegrams said.3 And though Congressman Walter said the Committee would consider in executive [83 S.Ct. 1832] session whether to make the telegrams a part of the record, it appears that whatever

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action was taken was without knowledge of the telegrams' contents.4

It is against this background that the Committee's failure to comply with its own rules must be judged. It has been long settled, of course, that rules of Congress and its committees are judicially cognizable. Christoffel v. United States, 338 U.S. 84; United States v. Smith, 286 U.S. 6; United States v. Ballin, 144 U.S. 1. And a legislative committee has been held to observance of its rules, Christoffel v. United States, supra, just as, more frequently, executive agencies have been. See, e.g., Vitarelli v. Seaton, 359 U.S. 535; Service v. Dulles, 354 U.S. 363.

The particular Committee Rule involved, Rule IV, provides in part:

IV -- Executive and Public Hearings:

A -- Executive:

(1) If a majority of the Committee or Subcommittee, duly appointed as provided by the rules of the House of Representatives, believes that the interrogation of a witness in a public hearing might

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endanger national security or unjustly injure his reputation, or the reputation of other individuals, the Committee shall interrogate such witness in an Executive Session for the purpose of determining the necessity or advisability of conducting such interrogation thereafter in a public hearing.

* * * *

B -- Public Hearings:

(1) All other hearings shall be public.

(Emphasis added.) The rule is quite explicit in requiring that injury to a witness' reputation be considered, along with danger to the national security and injury to the reputation of third parties, in deciding whether to hold an executive session.

At the threshold, we are met with the argument that Rule IV was written to provide guidance for the Committee alone, and that it was not designed to confer upon witnesses the right to request an executive session and the right to have the Committee act, either upon that request or on its own, according to the standards set forth in the rule. It seems clear, from the structure of the Committee's rules and from the Committee's practice, that such is not the case.

[83 S.Ct. 1833] The rules are few in number, and brief -- all 17 take little more than six pages in the record. Yet, throughout the rules, the dominant theme is definition of the witness' rights and privileges. Rule II requires that the subject of any investigation be announced, and that information sought be "relevant and germane to the subject." Rule III requires that witnesses be subpoenaed "a reasonably sufficient time in advance" to allow them a chance to prepare and employ counsel. Rule VI makes available to any witness a transcript of his testimony -- though at his expense. Rule VII gives every witness the privilege of having counsel advise him during the hearing. Rule VIII gives a witness a reasonable time to get other counsel

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if his original counsel is removed for failure to comply with the rules. Rule X makes detailed provision for those persons who have been named as subversive, Fascist, Communist, etc., by another witness. Such persons are given an opportunity to present rebuttal testimony, and are to be "accorded the...

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