Opinion of the Justices

• Decision Date: 13 April 1955
• Citation: 126 N.E.2d 100,332 Mass. 763
• Parties: OPINION OF THE JUSTICES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 100

126 N.E.2d 100

332 Mass. 763

OPINION OF THE JUSTICES.

Supreme Judicial Court of Massachusetts.

April 13, 1955.

To the Honorable the House of Representatives of the

Commonwealth of Massachusetts:

The undersigned Justices of the Supreme Judicial Court respectfully submit this answer to the question set forth in an order adopted by the House on March 28, 1955, and transmitted to us on March 30. The order refers to a bill now pending before the General Court known as House, No. 2590, a copy of which was transmitted to us with the order.

The title of the bill is 'An Act providing for the discharge of any professor, instructor or teacher in any university, college or school, public or private, located in the commonwealth, who refuses, at a duly constituted trial, or at certain hearings or inquiries, to answer certain questions pertinent to his membership in the communist party.'

The bill, if enacted, would amend c. 71 of the General Laws by inserting a new section 30B, to read as follows:

'Section 30B. Any professor, instructor or teacher at any college, university, teachers' college, or public or private school in the commonwealth, who for any reason whatsoever, refuses, at a trial or at a duly constituted hearing or inquiry conducted for the purpose of investigating communism, at which testimony is taken under oath, to answer questions pertinent to his past or present membership in the communist party shall forthwith be discharged.

'The provisions of this section shall be enforced by the attorney general in appropriate proceedings.

'If any provision, phrase or clause of this section, or the application thereof to any person or circumstance, is held invalid, such invalidity shall not affect other provisions, phrases or clauses or application of this section which can be given effect without the invalid provision, phrase or clause or application, and to this end the provisions, phrases and clauses of this section are declared to be severable.'

The question contained in the order is this: 'Is it constitutionally competent for the General Court to enact a law providing for the discharge of any professor, instructor or teacher at any college, university, teachers' college, or public or private school, in the commonwealth who refuses for any reason whatsoever, intending to include therein refusals based on the grounds of self-incrimination, to answer questions pertinent to his past or present membership in the Communist Party at a trial or at a duly constituted hearing or inquiry conducted for the purpose of investigating communism, at which testimony is taken under oath, substantially as set forth in said House, No. 2590?'

Article 12 of the Declaration of Rights reads in part, 'No subject shall * * * be compelled to accuse, or furnish evidence against himself.' The Fifth Amendment to the Constitution of the United States provides in part that no person 'shall be compelled in any criminal case to be a witness against himself.'

It is plain that the proposed section 30B, if enacted into law, and if valid, would apply to a person who had exercised his right under either Constitution at any trial or duly constituted hearing or inquiry, whether within or outside the Commonwealth, to refuse to answer questions pertinent to his membership in the Communist Party, whether present or past, without limitation of time.

It is the very cornerstone of our system of government that none of the three great departments, the legislative, the executive, or the judicial, can destroy or impair the constitutional rights of any person. All branches of the government are alike bound by the constitutional mandate. Therefore it must be clear that if the General Court should pass a purported statute to the effect that no teacher should avail himself of his right not to testify or furnish evidence against himself, such purported statute would be in direct contradiction of the constitutional provisions and would be void. So also would be a purported statute that should seek to penalize as by fine or imprisonment a person who should exercise his constitutional right. It is true that the proposed statute does not quite do either of the things just suggested. But it does something of comparable effect. It makes an indirect but hardly less serious attack upon the constitutional right. It attempts to say to any teacher in a college or school, whether public or private, that if he exercises his right he shall be deprived of his employment and means of livelihood. It would also bar him from any future employment as a school teacher, since, if he should obtain such employment, the statute would again operate to compel his discharge. This would be true even though otherwise he might find some school or college that had faith in him and would be willing to employ him. These consequences would be visited upon a person who had committed no crime, but had merely availed himself of his constitutional right; for it cannot be too often emphasized that the exercise of the privilege not to incriminate oneself does not prove guilt. The privilege is designed to protect the innocent, even though it may often be used to shield the guilty.

In Re Opinion of the Justices, 300 Mass. 620, 621, 15 N.E.2d 662, all but one of the then Justices of this court advised the Senate that a carefully drawn statute intended to permit under specified limitations the drawing of an inference adverse to a defendant in a criminal case from his failure to testify would be unconstitutional as an infringement upon the principle of article 12 of the Declaration of Rights hereinbefore set forth. In Commonwealth v. Smith, 163 Mass. 411, at page 430, 40 N.E. 189, at page 196, this court said, 'One who avails himself of his constitutional privilege and refuses to accuse or furnish evidence against himself shall be subject to no injurious consequence under the law by reason of his having done so. The constitution and laws do not and could not assume to say that no unfavorable private opinion should be formed. The protection afforded by the constitution is that the individual shall not be prejudiced at law by his...