# Dagmar Wilson v. United States of America, Donna Allen v. United States of America, Russell Nixon v. United States

> Court of Appeals for the D.C. Circuit · August 2, 1966 · 369 F.2d 198

URL: https://www.frixlaw.com/law-library/cases/9452317

## Case

- **Full name:** 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:** Court of Appeals for the D.C. Circuit
- **Decided:** August 2, 1966
- **Citations:** 369 F.2d 198; 125 U.S. App. D.C. 153; 1966 U.S. App. LEXIS 5289
- **Precedential status:** Published
- **Opinion:** Dissent by Danaher
- **Judges:** Reed, Danaher, Leventhal
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9452317

## How later opinions describe it (automated extraction)

- finding that the presumption that the acts of the speaker of the house and public officials were in accordance with applicable statutes may be overcome by a showing that the acts were based on a misinterpretation of statutory law or in violation of prescribed procedures
- explaining that a chamber- wide vote provides “a ‘check’ on hasty action by a committee” and avoids a situation where “the allegedly insulted committee . . . provide[s] the sole legislative determination whether to initiate proceedings to prosecute for contempt”
- discussing Ansara v. Eastland, 442 F.2d 751 (D.C. Cir. 1971), Sanders v. McClellan, 463 F.2d 894 (D.C. Cir. 1972), and U.S. Servicemen’s Fund v. Eastland, 488 F.2d 1252 (D.C. Cir. 1973), rev’d on other grounds, 421 U.S. 491 (1975)

## Opinion text

DANAHER, Circuit Judge
(dissenting) :
Basically the question for us is whether or not, as a matter of law, we are bound to strike down an official act of the Speaker of the House of Representatives, taken by him in reliance upon the language of 2 U.S.C. § 194 (1964). In my view, the Speaker under circumstances to be mentioned, had not acted illegally.
These three appellants were found guilty of violation of 2 U.S.C. § 192 (1964), after having waived a jury trial and after the respective indictments had been consolidated with consent of the parties. In substance one indictment charged that Nixon had refused to be sworn before a duly authorized Subcommittee of the Committee on Un-American Activities of the House of Representatives. 1
Appellant Wilson, according to the indictment, was confronted with the following statement and question:
“Mrs. Wilson, this committee has received testimony to the effect that on Friday, November 8, 1963, you accompanied Mr. Russell Nixon on a visit to the Department of State on behalf of Dr. Kaouri Yasui. Did you accompany Mr. Nixon as I have stated?”
Mrs. Wilson refused to answer that question and, as charged in a second count, refused to answer any questions to be asked of her by counsel and by the Subcommittee.
The indictment of appellant Allen set out that she was asked to state her name and residence, refused to answer when queried, and refused to answer any questions to be asked of her by counsel and by the Subcommittee.
Each indictment recited in its first four paragraphs that within the scope of the authority of the Committee was its duty to inquire into:
(1) the strategy, tactics and activities of members of the Communist Party and Communist organizations in aiding the entry into the United States of aliens inadmissible under the provisions of the Immigration and Nationality Act;
(2) the security aspects of the temporary admission to the United States of aliens who are admissible under the provisions of the Immigration and Nationality Act for the legislative purpose of determining whether the exigencies of the situation require a strengthening of the security provisions of that Act;
(3) the execution by administrative agencies concerned of the security provisions of the Immigration and Nationality Act, and
(4) related matters.
Unlike the situation presented in the Gojack case, the Subcommittee’s authority is here seen to be clear and to have been conferred in accordance with law.
When the appellants sought dismissal of the indictment, the judge noted that the appellants had conceded that paragraph 1 of the indictment, supra, was within the jurisdiction of the Committee, and in denying their motion to dismiss, *206 the court held, relying upon Barenblatt v. United States 2 that the subject matter of paragraphs 2 and 3, supra, likewise came within the Committee’s jurisdiction.
At trial it became evident that the refusal of the respective appellants to testify stemmed primarily from their insistence that they be examined in open hearings rather than in executive Subcommittee sessions. We need not presently pause to inquire into the Subcommittee’s power to conduct its hearings in executive session (although that power seems clearly to have been established in the circumstances of this case), 3 for we may turn presently to what we deem to be the basic issue which must here be resolved.
So it was, even as the Subcommittee decided upon an executive session, the appellants were insisting upon open hearings. The Subcommittee in furtherance of its legislative purpose undertook to ascertain whether the appellants, thus sought an official forum for publicizing their own views or for exploitation of propaganda in furtherance of Soviet aims; whether existing laws were adequate to bar the entry of certain types of aliens otherwise inadmissible to the United States or an improper waiver had been granted to Yasui; or whether the Immigration and Nationality Act failed to reflect congressional intent in any such respects. Faced with the refusal of the appellants to testify, the Subcommittee brought the matter to the attention of the full Committee.
Chairman Pool reported that these appellants had refused to testify before the Subcommittee in executive session on December 7 when the Subcommittee had proposed to conduct hearings pursuant to the resolution adopted by the Committee on February 19, 1964. The Subcommittee further reported that all of its members had agreed that a report of the facts relating to the refusal of each of these appellants to testify be referred and submitted to the Committee on Un-American Activities as a whole with a recommendation that a report and statement of fact with reference to each such refusal be made to and filed with the Speaker of the House, not then in session, in order that the Speaker might certify the same under the seal of the House to the United States Attorney that each of the appellants may be proceeded against for contempt of the House of Representatives.
The Subcommittee's report was approved and adopted by the full Committee which Committee authorized and directed its chairman to forward the report and statement of fact to the Speaker. Similar action was taken separately as to each of the appellants.
*207 The appellants, irrespective of their other claims, have contended that the alleged contempts had been improperly certified to the United States Attorney. Our inquiry involves the proper interpretation of 2 U.S.C. § 194 (1964) which in pertinent part provides:
“Whenever a witness summoned as mentioned in section 192 * * * fails * * * or * * * refuses to answer any question pertinent to the subject under inquiry before either House * * * or any committee or subcommittee of either House of Congress [and] when Congress is not in session, a statement of fact constituting such failure is reported to and filed with * * * the Speaker of the House, it shall be the duty of the * * * Speaker of the House * * * to certify, and he shall so certify, the statement of facts aforesaid under the seal of the * * * House * * * to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.” (Emphasis added.)
As a matter of background, counsel for appellants Wilson and Allen had asked the Committee for a public hearing for his clients. Appellant Nixon joined appellants Wilson and Allen in objecting to an executive session. The Subcommittee determined thereafter that an executive session was desirable
“for reasons of national interest, because of the area of Government operations involved, but which could not be disclosed to the witnesses at this time in any detail without violating that interest. It was also determined that Rule XI, 26 (m) precluded a public hearing at this stage of the investigation because the proposed area of interrogation would involve persons, other than the witnesses, in a defamatory or possibly incriminating manner forbidden by the rule.” 4
The Speaker on December 11, 1964 certified the facts to the United States Attorney, and on January 4, 1965 announced to the House of Representatives:
“The Speaker. The Chair desires to announce that subsequent to the sine die adjournment of the 88th Congress, the Committee on Un-American Activities reported to and filed with the Speaker statements of fact concerning the refusal of Russell Nixon, Dagmar Wilson, and Donna Allen to testify before a duly constituted subcommittee of the Committee on Un-American Activities of the House of Representatives, and that he did, on December 11, 1964, pursuant to the mandatory provisions of Public Resolution 123, 75th Congress, certify to the U.S. attorney for the District of Columbia, the statement of facts concerning the said Russell Nixon, Dag-mar Wilson, and Donna Allen.” 5
The language of the statute is mandatory on its face. It is clear on its face. There is no ambiguity about it. It is fundamental that the words of statutes are to be interpreted wherever possible “in their ordinary, everyday senses.” 6 The Speaker believed he was bound to act as the statute directs — and I believe he was.
*208 Not only was the amendment in 1936, 49 Stat. 2041 , designed 7 to reach the contumacy shown in a refusal or failure to testify wherever an authorized committee encountered such contempt, it was further an objective of the challenged language that immediate action could be taken that the committees of Congress not be thwarted in their effort to effectuate a congressional purpose.
With great deference to the position of my colleagues, it seems to me that the interpretation they have adopted will completely nullify the result the Congress sought to achieve. The 1936 amendment is being rendered nugatory. References to what may be or may have been the practice of the Congress when in session seem to me to be totally irrelevant to our problem.
Thus, first, the Committee, then the Speaker, and finally, the appropriate United States Attorney and the grand jury were commanded to act. A grand jury, of course, may refuse to act on facts presented to it, and often has refused to indict. The 89th Congress undoubtedly could have resolved to recall the citation, for it could not have been bound by an action of the Speaker taken pursuant to the directive of a committee created under the rules of the 88th Congress. And in due course, there is always the protection of the trial itself, with a right of appeal. It may be doubted that the congressional scheme could be more completely spelled out.
I would affirm.
. The Committee is a standing committee of the House authorized to make investigations of Un-American and subversive “propaganda” and “propaganda activities” and “all other questions in relation thereto that would aid Congress in any necessary remedial legislation.” Gojack v. United States, 384 U.S. 702 , 86 S.Ct. 1689 , 16 L.Ed.2d 870 (1966) ; cf. Wilkinson v. United States, 365 U.S. 399 , 81 S.Ct. 567 , 5 L.Ed.2d 633 (1961).
. 360 U.S. 109 , 79 S.Ct. 1081 , 3 L.Ed.2d 1115 (1959).
. The 88th Congress adopted its Rules by House Resolution No. 5, January 9, 1963.
Rule XI deals with “Powers and Duties of Committees.”
Paragraph 26(g) provides that all hearings conducted by standing committees or their subcommittees “shall be open to the public except * * * where the committee by a majority vote orders an executive session.”
Rule 26(a) provides that “ * * * Committees may adopt additional rules not inconsistent herewith,” pursuant to which the House Committee on Un-American Activities had adopted as a rule of procedure that each subcommittee was authorized to determine by majority vote whether hearings “shall be open to the public or shall be in executive session.”
Moreover Rule XI, paragraph 26(m) provides in pertinent part that “if the committee determines that evidence or testimony at an investigative hearing may tend to defame, degrade or incriminate any person, it shall—
“(1) receive such evidence or testimony in executive sessions.”
These appellants were informed by the Committee that pursuant to the foregoing rules it had determined to conduct its investigative hearing in executive session. Neither the appellants nor their counsel then voiced objection on the ground that the Committee had not itself made the determination that the hearing be conducted in executive session. Cf. United States v. Bryan, 339 U.S. 323, 332-333 , 70 S.Ct. 724 , 94 L.Ed. 884 (1950).
See generally, United States v. Orman, 207 F.2d 148, 158-159 (3 Cir. 1953).
. Extract from minutes of Subcommittee meeting.
The Committee had been informed that the three appellants had collaborated in furthering the entry into this country of a Japanese professor named Yasui, allegedly an important factor in a major Soviet-controlled movement with interests favoring a Soviet propaganda position and hostile to the United States and its international interests. The Department of State had denied Yasui’s request for a visa only to reverse itself after activity on the part of the appellants to the end that Yasui might undertake a lecture tour in the United States, as he thereafter did.
. Cong.Rec. 89th Cong., 1st Sess. p. 24 (Jan. 4, 1965).
. Crane v. Commissioner, 331 U.S. 1, 6 , 67 S.Ct. 1047 , 91 L.Ed. 1301 (1947); Malat v. Riddell, 383 U.S. 569, 571 , 86 S.Ct. 1030 , 16 L.Ed.2d 102 (1966).
. Congress was urged to adopt the amendment to meet the “demonstrated need” to avoid a delay of months in prosecution, and to reach a contumacious witness at hearings held outside of Washington. The Committee report explained:
“If Congress is not in session when the failure to testify occurs * * * a statement of facts constituting such failure is to be reported and filed by the Committee with the * * * Speaker of the House * * * whose duty it then shall be to certify the statement of facts * * * to the appropriate United States Attorney, whose duty it then is to bring the matter to the attention of the proper grand jury.”
And further:
“The requirement that the statement of facts first be filed with the * * * Speaker of the House constitutes a check against hasty action on the part of the Committee.” See H.R.Rep.No. 1567, 74th Cong., 1st Sess., to accompany H.R. 8875, 49 Stat. 2041 (1936).
“Shall” is a word of command. Thus, when Congress was not in session, it became the duty of the Speaker to certify the statement to the appropriate United States Attorney, just as it became the duty of the latter to present the matter to the grand jury. If we really were called upon to look beyond the statute for the intent of Congress, we should scrutinize, not floor debates and speeches for the record, but the reports of the committees in charge of the legislation. Duplex Printing Press Co. v. Deering, 254 U.S. 443, 474 , 41 S.Ct. 172 , 65 L.Ed. 349 (1921).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9452317. Public record. Not legal advice.