Wyman v. Sweezy

• Decision Date: 19 April 1956
• Citation: 100 N.H. 103,121 A.2d 783
• Court: New Hampshire Supreme Court
• Parties: Louis C. WYMAN, Attorney General, v. Paul M. SWEEZY.

Page 783

121 A.2d 783

100 N.H. 103

Louis C. WYMAN, Attorney General, v. Paul M. SWEEZY.

Supreme Court of New Hampshire.

Argued Jan. 3, 1956.

Decided March 6, 1956.

As Modified on Denial of Rehearing March 29, 1956.

Second Motion for Rehearing Denied April 19, 1956.

Louis C. Wyman, Atty. Gen., pro se.

Sheehan, Phinney & Bass, Manchester, for defendant.

Joseph A. Millimet, Manchester, as amicus curiae.

George Soll, New York City for the Academic Freedom Committee of the American Civil Liberties Union (by brief), as amicus curiae.

GOODNOW, Justice.

The Attorney General was chosen by the Senate and House of Representatives as a legislative committee to make an investigation 'with a view to providing [the Legislature] with information upon which further action by it may be predicated'. Nelson v. Wyman, 99 N.H. 33, 37, 38, 105 A.2d 756, 762. The matters concerning which it was authorized to inquire were limited to those 'relevant and pertinent to the main object of the investigation'. Id., 99 N.H. 39, 105 A.2d 763. The questions asked of a witness appearing before it must likewise fall within this limitation. If they do not, they are irrelevant and need not be answered. When the relevancy of inquiries made of him are questioned by a witness and he declines to answer, the committee may then petition the Superior Court, as it did in this case.

The principal purpose of an action commenced by such a petition is the determination of the relevancy of those questions put to the witness which he has declined to answer. The petition does not seek to have the defendant found in contempt of the investigating committee nor 'to vindicate public authority', as he claims. Instead, it 'seeks to have the Superior Court propound to the defendant the same questions as were asked him by the Attorney General and in the event he persists in the same answers that he be adjudged in contempt of the Superior Court'. (Emphasis supplied.) State v. Uphaus, 100 N.H. 1, 3, 116 A.2d 887, 889. In connection with the petition, the Superior Court is authorized 'to proceed in the matter as though the original proceedings had been in the court'. RSA 491:20. It is thereby granted jurisdiction over the investigation to the extent required by the subject matter of the petition. State v. Uphaus, supra, 100 N.H. 3, 4, 116 A.2d 887. Within that area, the Court may order the defendant to answer questions which it deems to be relevant according to the standards applicable in legislative investigations.

The relevancy of questions asked by an investigating committee is not to be determined solely by the standards applicable at the trial of issues in court. 'Because of the scope and purpose of [legislative] investigations, pertinency * * * is necessarily broader than relevancy in the law of evidence.' United States v. Orman, 3 Cir., 207 F.2d 148, 153. It is not so broad, however, that a question may be sustained as relevant on a mere possibility that it might lead to later relevant questions. Bowers v. United States, 92 U.S.App.D.C. 79, 202 F.2d 447, 452. The joint resolution authorizing the investigation is the guide to relevancy. If the question is directed at a possible answer, United States v. Orman, supra, 207 F.2d 154, which would be reasonably concerned with the main object of the investigation, it is relevant. See Sinclair v. United States, 279 U.S. 263, 299, 49 S.Ct. 268, 73 L.Ed. 692.

Unless the relation of a particular question is apparent on its face, the burden of establishing its relevancy rests upon the Attorney General. In support of his assertion of relevancy, he is not confined, however, to 'the rules of evidence and the presumptions of law applicable in criminal cases', as contended by the defendant. Relevancy, as it applies to a legislative investigation, may stem from a wide variety of factors. The context in which a question is asked may indicate its relevancy. Bowers v. United States, 92 U.S.App.D.C. 79, 202 F.2d 447, 449. If it does, the transcript of the defendant's entire testimony before the committee may alone furnish a sufficient basis for the court's decision.

In this case, when the Attorney General, as the investigating committee, put the questions to the defendant, he possessed information concerning the defendant's published writings, the persons with whom he had been associated, and his apparent activities in certain organizations. The Attorney General had also acquired in the course of his investigation a knowledge of the tenets of the Communist Party and the methods and operations of communists and their sympathizers. Background information of this sort may also indicate the relation of questions asked by the committee to the subject matter of the investigation. United States v. Orman, 3 Cir., 207 F.2d 148, 155. If considered to reasonably do so by the court to which it is disclosed, it may furnish a sufficient basis for determining relevancy.

In connection with a lecture entitled 'Socialism' given by the defendant as a guest lecturer before a student class at the University of New Hampshire in March, 1954, he was asked 'What was the subject of your lecture?'. This question the defendant declined to answer and replied: 'I stated under oath * * * that I do not advocate or in any way further the aim of overthrowing constitutional government by force and violence. I did not so advocate in the lecture I gave at the University of New Hampshire. In fact, I have never at any time so advocated in a lecture anywhere. Aside from that I have nothing I want to say about the lecture in question'. He also refused to answer the following questions: 'Didn't you tell the class at the University of New Hampshire * * * that Socialism was inevitable in this country?', 'Did you express the opinion, or did you make the statement at that time that Socialism was inevitable in America?', 'Did you advocate marxism at that time?', and 'Did you in this last lecture on March 22 or in any of the former lectures espouse the theory of dialectical materialism?'. Upon consideration of the transcript of the hearings before the Attorney General and arguments of counsel, the Superior Court ruled these questions to be 'relevant under the statute under which the Attorney General is acting' basing its ruling 'upon the sections of the statute which relate particularly to teaching or advocating communism'.

The statute referred to, RSA ch. 588, provides that persons who advocate or teach 'any person * * * to commit, attempt to commit, or aid in the commission of any act intended to overthrow, destroy or alter' existing government by force or violence are either classified as subversive persons by section 1 or are subjected to criminal penalties by section 2, depending upon whether such advocacy or teaching has been done 'knowingly and wilfully * * * under such circumstances as to constitute a clear and present danger'. § 2. Nelson v. Wyman, 99 N.H. 33, 37, 105 A.2d 756.

'It is not always easy to distinguish teaching or advocacy in the sense of incitement from teaching or advocacy in the sense of exposition or explanation.' Dennis v. United States, 341 U.S. 494, 572, 71 S.Ct. 857, 898, 95 L.Ed. 1137. The distinction is one of fact. The defendant's denial that he advocated, taught or in any way furthered the aim of overthrowing constitutional government by force or violence in his lecture is simply his determination of that fact, which the committee could believe or not as it saw fit. The witness could not by his answer impose upon the investigating committee the burden of producing evidence that a doctrine aimed at the violent overthrow of existing government was in fact advocated by him before it could inquire of him concerning the lecture.

An examination of the transcript and the background information furnished to the Court by the Attorney General discloses that the defendant is a socialist and for several years has advocated 'the classical conception of socialism: public ownership of the means of production and general economic planning', a system which he stated exists today only in communist countries. He testified that he does not advocate the use of force or violence to establish this system in this country as was done in Russia and China, that he considers himself to be a Marxist in the sense that 'Marxism is a body of doctrines about society, history and philosophy * * * not a form of society' and that he is not a member of the Communist Party, has never been one and knows no members of it in this state. He acknowledged past and present affiliations with various organizations and committees which have either been designated by the Attorney General of the United States as subversive or reported by the Committee on Un-American Activities of the United States House of Representatives to be dominated by members of the Communist Party.

The record also discloses that in 1953, the defendant was co-editor of an article appearing in a publication known as the Monthly Review which reads in part as follows: 'Our Country is preparing to practice violence on a hitherto undreamed-of scale to preserve a social order * * * Capitalism, the organization of society according to the barbaric principle of private profit, is the scourge of mankind; and violence designed to preserve it is doubly damned, once for itself and once for its purpose. Those of us who have socialism in our bones * * * must necessarily judge the violence of the socialist countries differently. We hate it * * * but history * * * decreed that the economic foundations of the society of the future must be laid in backward countries, not only without the assistance of the advanced countries but against their ruthless and implacable resistance. It was thereby rendered inevitable that the process should be difficult, painful and violent. But the process does go forward--of that the majestic successes of the Soviet economy * * * is irrefutable proof. For the first time in history we can...