Jurisdictional Statement — DeGregory v. Attorney General of New Hampshire

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Subject Index.

Opinion below 1

Jurisdiction 1

Questions presented 3

Statement of the case 3

The questions are substantial 6

Conclusion 11

Appendix A, New Hampshire Revised Statutes

Annotated 12

Chapter 491 12

Chapter 588 12

Appendix B, Opinion of Supreme Court of New

Hampshire 23

Table of Authorities Cited.

CasEs.

American Committee for Protection of Foreign Born

v. Subversive Activities Control Board, 380 U.S. 513 8

Bantam Books, Inc., v. Sullivan, 372 U.S. 58 2

Barenblatt v. United States, 360 U.S. 109 9

DeGregory v. Attorney General of New Hampshire,

368 U.S. 19 4, 8,10

Gibson v. Florida Legislative Investigation Commit-

tee, 372 U.S. 539 7,9

Jordan v. Hutcheson, 323 F. 2d 597 7

Maynard v. De Gregory, 106 N.H.; 209 A. 2d 712 1

N.A.A.C.P. v. Button, 371 U.S. 415 6

Nelson v. Wyman, 99 N.H. 33 9

7

Pennsylvania v. Nelson, 350 U.S. 497

Lal

.

ii TABLE OF AUTHORITIES CITED

Shelton v. United States, 327 F. 2d 601

Sweezy v. New Hampshire, 354 U.S. 234

Uphaus v. Wyman, 360 U.S. 72

Veterans of Abraham Lincoln Brigade v. Subversive

Activities Control Board, 331 F. 2d 64

Veterans of Abraham Lincoln Brigade v. Subversive

Activities Control Board, 380 U.S. 503

Watkine v. United States, 354 U.S. 178

Wilkinson v. United States, 365 U.S. 399

STatTurTEs.

New Hampshire Revised Statutes Annotated, c. 491

New Hampshire Revised Statutes Annotated, ¢. 588,

§ 8-a 2, 3, 4, 7, 10

United States Constitution, First Amendment 3,6,9,11

United States Constitution, Fourth Amendment 6, 9, 11

United States Constitution, Fourteenth Amendment

3, 9, 10, 11

28 U.S.C., § 1257 (2) 1

TextBooks, Ere.

1955 Report of the Attorney General

Supreme Court of the United States.

McroseR TERM, 1965.

No.

HUGO DeGREGORY, Appellant,

v.

ATTORNEY GENERAL OF THE STATE OF

NEW HAMPSHIRE, Appellee.

JURISDICTIONAL STATEMENT.

Opinion Below.

This is an appeal from a decision of the Supreme Court

of New Hampshire rendered on April 30, 1965. It is not

yet reported in the New Hampshire Reports but will be

found in volume 106, New Hampshire Reports, and 209

A. 2d 712. The New Hampshire Supreme Court affirmed

a Superior Court decision which ordered the appellant com-

mitted to jail for one year for civil contempt.

Jurisdiction.

This appeal is taken pursuant to 28 U.S. Code, § 1257

(2), which provides:

‘*Final judgments or decrees rendered by the high-

est court of a State in which a decision could be had,

may be reviewed by the Supreme Court as follows:

2

‘*(2) By appeal, where is drawn in question the

validity of a statute of any state on the ground of its

being repugnant to the Constitution, treaties or laws

of the United States, and the decision is in favor of

its validity.’’

Bantam Books, Inc. v. Sullivan, 372 U.S. 58.

‘Notice of appeal was filed in the New Hampshire Supreme

Court on May 28, 1965.

From the inception of this proceeding, appellant has

‘raised the constitutional issues argued herein, except for

the issue of unconstitutionality on its face of New Hamp-

shire Revised Statutes Annotated, c. 588, § 8-a. Comment

on that issue will be made hereinafter.

The constitutional issues here presented were raised in

appellant’s answer to the petition filed in the Superior

Court for Merrimack County, New Hampshire (R. 12),

except that, as above noted, the constitutionality on its face

of the statute was not argued.

The issues were argued in a memorandum of law filed in

the Superior Court.

Exception was taken to the judge’s ruling that the Attor-

ney General could properly question DeGregory (R. 139)

and to the introduction of Exhibit 1 in this record (R. 155).

The issues were argued before the Supreme Court of

New Hampshire (R. 31 et seq.) and the New Hampshire

Court ruled adversely to appellant (R. 79).

Said the Court: ‘‘This exercise by the state of its power

adequately to inform itself in order to act and protect its

legitimate and vital interests has not been ‘pressed, in this

instance, to a point where it has come into fatal collision

with the overriding constitutionally protected rights’ of

defendant. Uphaus v. Wyman, 360 U. S. 72, 81.’’

». 3

Questions Presented.

The questions presented in this appeal are as follows:

1. Whether Revised Statutes Annotated, c. 588, § 8-a,

as applied by the Court on the record of this case, violates

due process of law under the Fourteenth Amendment to the

United States Constitution by authorizing a legislative

committee to summon and question the defendant herein

without any legal showing of foundation, basis in fact or

probable cause for conducting an investigation and for

investigating the defendant.

2. Whether the decision of the Court in this case denied

to defendant his right of privacy and abridged his free-

dom of speech and assembly under the First Amendment

to the United States Constitution as guaranteed to him

by the Fourteenth Amendment to said Constitution by hold-

ing that Revised Statutes Annotated, c. 588, § 8-a, author-

ized the Attorney General to summon and question the

defendant herein without any legal showing of founda-

tion, basis in fact or probable cause for conducting an

investigation or for investigating the defendant.

3. Whether Revised Statutes Annotated, c. 588, § 8-a

(chapter 178, Laws of 1957), violates due process of law

under the Fourteenth Amendment to the United States

Constitution by permitting a purported legislative com-

mittee, free of legislative control, and unlimited in time,

to be used as a device to bestow wide judicial and legisla-

tive powers upon the Attorney General of the State of New

Hampshire.

Statement of the Case.

This proceeding is brought under New Hampshire Re-

vised Statutes Annotated, c. 588, which is the State Sub-

versive Activities Law. Under section 8-a of that chap-

4

ter the Attorney General is granted authority by the Legis-

lature to conduct an investigation in the field of subversive

activities ‘‘At any time when the attorney general has

information which he deems reasonable or reliable relat-

ing to violations of the provisions of this chapter.’’

‘‘ArrorNEY GENERAL. At any time when the attorney

general has information which he deems reasonable or

reliable relating to violations of the provisions of this

chapter he shall make full and complete investiga-

tion thereof and shall report to the general court the

results of this investigation, together with his recom-

mendations, if any, for legislation. In any investiga-

tion hereunder the attorney general or any duly author-

ized member of his staff is authorized to require by

subpoena or otherwise the attendance of such witnesses

and the production of such correspondence, books,

papers and documents and to administer such oaths,

and to take such testimony and to make such expendi-

tures within the funds provided as he deems advisable.

The provisions of section 7 of this chapter shill be

inapplicable to the investigation provided for herein

and the attorney general is hereby authorized to make

public such information received by him, testimony

given before him, and matters handled by him as he

deems fit to effectuate the purposes hereof.’’

The previous proceeding which was decided in this Court

in DeGregory v. Attorney General of New Hampshire, 368

U.S. 19, was terminated when DeGregory appeared in the

Superior Court of New Hampshire, answered in the nega-

tive the question: ‘‘Are you presently a member of the

Communist Party?’’ and thereupon was purged of con-

tempt (R. 107). Within a few days the Attorney General

started the present proceeding by causing a subpoena to

5

be served on DeGregory. A hearing was held before the

Attorney General on November 22, 1963. At that time the

Attorney General posed a number of questions to DeGreg-

ory and early in the proceeding the witness made the

following statement:

‘*T would like to state, Mr. Gall, that I am not now

a member of the Communist Party and have not been

at any time since the authority you have cited, RSA

588 :8-a: that I have no knowledge of any Communist

activities in New Hampshire during this period or of

any violations of RSA 588 during this period of six

and one-half years. In fact, I am not even aware of

the existence of a Communist Party in the state of

New Hampshire at any time the authority you have

cited, Section 8-a, has been on the statute books, and

in view of the foregoing I do not understand what I

have to face here today.’’ (R. 91.)

Thereafter the Attorney General continued to pose

questions and DeGregory raised objections and declined to

answer them (R. 91-97). The Attorney General thereupon

brought a petition in the Superior Court, pursuant to New

Hampshire Revised Statutes Annotated, c. 491, and De-

Gregory filed an answer thereto, raising the constitutional

objections now relied upon (R. 12). A hearing was held

in the Superior Court on May 20, 1964. At that hearing

DeGregory again repeated the sworn statement which he

had previously made in the hearing before the Attorney

General and declined to answer a series of questions which

are set forth in the record of the Superior Court (R. 143,

et seq.). The Court entered an order finding DeGregory

in contempt and ordering him committed to a jail for one

year or until he might purge himself, and meanwhile re-

leased him on his own recognizance (R. 169). As stated

6

previously, the Supreme Court of New Hampshire affirmed

the decision of the lower Court and ruled that the statute on

the record of the case did not contravene the New Hamp-

shire or United States Constitutions (R. 75-82).

The Questions are Substantial.

The first and second questions involve passing on the

constitutionality of the statute as applied by the New

Hampshire Court on the record in this case. Due process

of law, the First Amendment rights of freedom of speech

and freedom to be silent, and the Fourth Amendment right

to be free from unreasonable search are involved.

Two kinds of foundation or probable cause must be con-

sidered and will be touched on successively.

The first is the kind of foundation the Attorney General

must have to institute an investigation.

As stated in N.A.A.C.P. v. Button, 371 U.S. 415, 438:

‘The decisions of this Court have consistently held that

only a compelling state interest in the regulation of a sub-

ject within the State’s constitutional power to regulate can

justify limiting First Amendment freedoms.”’

The Attorney General was heard to argue that he really

does not need any foundation at all, except some kind of

unspecified probable cause (R. pp. 131, 133), and he further

pointed out that the Legislature had indicated a continuing

interest in the subject of subversive activities and cited New

Hampshire Laws of 1961 and 1963, each of which merely

provided for annual appropriations of $2,000 (R. p. 67).

It was stated in the Courts below, and not denied, that

the Attorney General has made no written report to the

Legislature since the report of 1955 on which he and the

New Hampshire Court relied in this case as the justification

of investigation (R. p. 25).

7

This Court needs no reminder that, in balancing First

Amendment rights of an individual against the urgent

necessity of the self-preservation of the state, it must be

ascertained that there is such urgency as to warrant limit-

ing the individual’s rights.

Sweezy v. New Hampshire, 354 U.S. 234.

Watkins v. United States, 354 U.S. 178.

Gibson v. Florida Legislative Investigation Com-

mittee, 372 U.S. 539.

Shelton v. United States, 327 F. 2d 601 (C.A.

D.C.).

Jordan v. Hutcheson, 323 F. 2d 597 (C.A. 4).

Having in mind the law as laid down in these cases, it

is submitted that no requisite legislative purpose is found

in the record of this case. When DeGregory made the

sworn statement already quoted, he said: ‘‘I don’t under-

stand what I have to face here today.’’ At that point the

burden was on the Attorney General to state the legislative

purposes of the investigation and the grounds which per-

mitted him at that time to pursue it.

‘*. , . it must be up to the State to make some at least

plausible disclosure of its lawmaking interest so that the

relevance of its inquiries to it may be tested.’’ Brennan,

J., dissenting, in Uphaus v. Wyman, 360 U.S. 72, 105.

We are dealing here with a state investigating commit-

tee whose powers are circumscribed. Pennsylvania v. Nel-

son, 350 U.S. 497. The passing of the 1957 Act (Revised

Statutes Annotated, c. 588, § 8-a) presumably implied

findings of urgency by the Legislature, but such findings

cannot continue forever without some further showing that

the need which brought about the original statute still con-

tinues.

We would like to emphasize the difference of this pro-

ceeding and the previous proceeding between the same

8

parties, DeGregory v. Attorney General of New Hampshire,

368 U.S. 19. In the previous case only one question was —

involved: ‘‘Are you presently a member of the Communist

Party?’’ There was no doubt by the very tense of the

question, ‘‘Are you presently ... ,’’ that at least the At-

torney General was attempting to inquire about events and

facts then current.

Compare this proceeding, where DeGregory, by his sworn

statement, covered the present and the past back to the

date of the passage of the statute in 1957. The continued

insistence on questioning him, and the refusal to place any

dates on what period the questions related to, make it plain

that now the Attorney General is not seeking current in-

formation, but inquiring into events of long ago (R. 91-98).

The New Hampshire Court made it ¢: ystal clear that it

relied solely on the 1955 report of the Attorney General

(R. Ex. 1) as the basis for the current investigation (R.

77). At the time of its introduction in evidence (May,

1964) this report was over nine years old and most of its

contents related to events even older. How !oug can an

investigator justify going over and over evidence so old?

Where is that threat to the state which alone can consti-

tutionally justify the obvious impingement on First Amend-

ment rights?

The New Hampshire Court stated that the nature of

the Communist Party is such that it can be the subject

of constant scrutiny; but first it must be shown to exist

in New Hampshire, and the only evidence in the record is

negative, namely DeGregory’s sworn statement (R. 91).

The Attorney General’s presentation has the same qual-

ity of staleness, the same lack of connection with the

present day noted by this Court in Veterans of Abraham

Lincoln Brigade v. Subversive Activities Control Board,

380 U.S. 503, and American Committee for Protection of

Foreign Born v. Subversive Activities Control Board, 380

U.S. 513.

9

The New Hampshire Supreme Court cited Nelson v.

Wyman, 99 N.H. 33, as justifying a scrutiny of the distant

past (R. 79). Counsel for DeGregory discussed that case

before the Superior Court (R. 119, 120), and pointed out

that in that case an inquiry into events of the past was

upheid oniy because it was ancillary to the investigation

of current information.

As stated in the opinion of the Court of Appeals in

Veterans of Abraham Lincoln Brigade v. Subversive

Activities Control Board, 331 F. 2d 64, 67: ‘*This

statute is cast in the present tense. It is not designed to

produce historical treatises.’’

It is submitted, therefore, that the state has not suc-

cessfully carried its burden of showing any legislative

purpose in this investigation, and that therefore the ques-

tioning of DeGregory was in violation of his First Amend-

ment rights as guaranteed by the Fourteenth Amendment

of the United States Constitution.

Turning to the other branch of foundation, probable cause

or nexus, assume that this Court holds that the Attorney

General on the record of this case had the right to make an

investigation of subversive activities; he then had the

burden of showing some basis, some probable cause for

summoning appellant DeGregory to testify.

Whether appellant’s right rests on a ‘‘right of privacy’”’

under the First Amendment or other constitutional clauses,

or on his right not to be subjected to unreasonable search

under the Fourth Amendment, this Court has repeatedly

made clear that the government, federal or state, cannot

engage in ‘‘indiscriminate dragnet procedures,’’ a phrase

used in Barenblatt v. United States, 360 U.S. 109, 134, and

in Wilkinson v. United States, 365 U.S. 399, 412.

Put in another way, the Court in Gibson v. Florida Legis-

lative Investigation Committee, 372 U.S. 539, at 557 stated:

‘**... an adequate foundation for inquiry must be laid

10

before proceeding in such a manner as will substantially

intrude upon and severely curtail or inhibit constitutionally

protected activities or seriously interfere with similarly

protected associational rights.’’

The probable cause relied on by appellee was once again

the 1955 Report of the Attorney General (Ex. 1). There

was also reference made to ‘‘documented sworn testimony

to the effect that Hugo DeGregory had been for a long time

active within the Communist Party within this state’’ (R.

87).

However, on repeated challenge, appellee never put a date

on this alleged testimony, and never produced it (R. 87,

115, 117, 123, 133, 135, 137).

The New Hampshire Supreme Court, in its opinion, relied

solely on the 1955 Report (R. 77, 79), and cited pages

204-206 of the Report. The most recent references to De-

Gregory in those pages were dated in 1953 and 1954, and in

fact did not themselves relate to violations of Revised

Statutes Annotated, c. 588.

Couple these stale and tenuous citations with the un-

contradicted statement under oath by appellant (R. 143)

and it becomes perfectly clear that appellee had nothing

even faintly approaching probable cause or reason to be-

lieve that DeGregory had any information that the Attorney

General could legitimately seek.

We have already cited authorities to show that, lacking

such a nexus or foundation, the summoning and questioning

of appellant was in violation of his rights as guaranteed

by the Fourteenth Amendment.

In the notice of appeal the issue of unconstitutionality

on its face of New Hampshire Revised Statutes Annotated,

c. 588, 4 8-a, was raised. This question was not argued

below because the New Hampshire Court was bound by the

previous case of DeGregory v. Attorney General of New

Hampshire, 368 U.S. 19.

11

It is open to this Court, if it so desires, to reconsider the

law. The question is submitted without argument by ap-

pellant.

Conclusion.

It is submitted, therefore, that, as a matter of due process

of law-and of First and Fourth Amendment rights as ap-

plied by the Fourteenth Amendment to the United States

Constitution, the decision of the New Hampshire Court

was plainy wrong. On the record of this case we urge

that appellant cannot constitutionally be ordered to jail

for refusal to answer the Attorney General’s questions, and

that the decision of the Court below should be reversed.

Respectfully submitted,

HOWARD S. WHITESIDE,

Attorney for Huco DeGrecory, Appellant.

[Appendices follow.]

12

Appendix A.

New Hampsuire Revisep Sratures ANNOTATED.

Cuapter 491.

Section 19. Prririon. Whenever any official or board

is given the power to summon witnesses and take testimony,

but has not the power to punish for contempt, and any

witness refuses to obey such summons either as to his

appearance or as to the production of things specified in

the summons, or refuses to testify or to answer any ques-

tions, a petition for an order to compel him to testify or

his compliance with the summons may be filed in the

Superior Court or with some justice thereof.

Section 20. Procepure. Upon such petition the Court

or justice shall have authority to proceed in the matter as

though the original proceeding had been in the court and

may make orders and impose penalties accordingly.

Cuapter 588.

SuBVERSIVE ACTIVITIES.

588:1 Derinitions. For the purpose of this chapter

‘‘organization’’ means an organization, corporation, com-

pany, partnership, association, trust, foundation, fund,

club, society, committee, political party, or any group of

persons, whether or not incorporated, permanently or

temporarily associated together for joint action or ad-

vancement of views on any subject or subjects.

‘‘Subversive organization’? means any organization

which engages in or advocates, abets, advises, or teaches, or

a purpose of which is to engage in or advocate, abet, advise,

or teach activities intended to overthrow, destroy or alter,

or to assist in the overthrow, destruction or alteration of,

13

the constitutional form of government of the United States,

or of the state of New Hampshire, or of any political subdi- -

vision of either of them, by force, or violence.

‘‘Foreign subversive organization’? means any organi-

zation directed, dominated or controlled directly or indi-

rectly by a foreign government which engages in or advo-

cates, abets, advises, or teaches, or a purpose of which is

to engage in or to advocate, abet, advise, or teach, activities

intended to overthrow, destroy, or alter, or to assist in the

overthrow, destruction or alteration of the constitutional

form of government of, the United States, or of the state

of New Hampshire, or of any political subdivision of either

of them, and to establish in place thereof any form of

government the direction and control of which is to be

vested in, or exercised by or under, the domination or con-

trol of any foreign government, organization, or individual;

but does not and shall not be construed to mean an organi-

zation the bona fide purpose of which is to promote world

peace by alliances or unions with other governments or

world federations, unions or governments to be effected

through constitutional means.

‘Foreign government’’ means the government of any

country or nation other than the government of the United

States of America or one of the states thereof.

‘Subversive person’? means any person who commits,

attempts to commit, or aids in the commission, or advocates,

abets, advises or teaches, by any means any person to

commit, attempt to commit or aid in the commission of

any act intended to overthrow, destroy or alter, or to assist

in the overthrow, destruction or alteration of, the consti-

tutional form of the government of the United States, or of

the state of New Hampshire, or any political subdivision of

either of them, by force, or violence, or who is a member

of a subversive organization or a foreign subversive organi-

zation.

14

SEDITION.

588:2 Ferxonies. It shall be a felony for any person

knowingly and wilfully to

(a) commit, attempt to commit, or aid in the commis-

sion of any act intended to overthrow, destroy, or alter,

or to assist in the overthrow, destruction or alteration of

the constitutional form of the government of the United

States, or of the state of New Hampshire, or any political

subdivision of either of them, by force or violence; or

(b) advocate, abet, advise or teach by any means any

person to commit, attempt to commit, or assist in the com-

mission of any such act under such circumstances as to con-

stitute a clear and present danger to the security of the

United States, or of the state of New Hampshire or of

any political subdivision of either of them; or

(c) conspire with one or more persons to commit any

such act; or

(d) assist in the formation or participate in the man-

agement or to contribute to the support of any subversive

organization or foreign subversive organization knowing

said organization to be a subversive organization or a

foreign subversive organization; or

(e) destroy any books, records or files, or secrete any

funds in this state of a subversive organization or a foreign

subversive organization, knowing said organization to be

such.

Any person who shall be convicted by a court of com-

petent jurisdiction of violating any of the provisions of

this section shall be fined not more than twenty thousand

dollars, or imprisoned for not more than twenty years, or

both, at the discretion of the court.

588:3 Prenaury. It shall be a felony for any person after

August 1, 1951 to become, or after November 1, 1951 to

remain a member of a subversive organization or a foreign

15

subversive organization knowing said organization to be a

subversive organization or foreign subversive organization.

Any person who shall be convicted by a court of competent

jurisdiction of violating this section shall be fined not more

than five thousand dollars, or imprisoned for not more than

five years, or both, at the discretion of the court.

588 :3-a Evipence or MempersHip or Participation. In

determining membership or participation in a subversive

organization or a foreign subversive organization as defined

in this chapter, or knowledge of the purpose or objective

of such organization, the jury, under instructions from

the court, may consider evidence, if presented, as to

whether the accused person to his knowledge:

(1) Has been listed as a member in any book or any

of the lists, records, correspondence, or any other

document of the organization;

(2) Has made financial contribution to the organiza-

tion in dues, assessments, loans, or in any other

form;

(3) Has made himself subject to the discipline of the

organization in any form whatsoever;

(4) Has executed orders, plans, or directives of any

kind of the organization;

(5) Has acted as an agent, courier, messenger, corre-

spondent, organizer, or in any other capacity in

behalf of the organization;

(6) Has conferred with officers or other members of

the organization in behalf of any plan or enterprise

of the organization;

(7) Has been accepted as an officer or member of the

organization or as one to be called upon for services

by other officers or members of the organization ;

(8) Has written, spoken or in any other way communi-

cated by signal, semaphore, sign or in any other form

16

of communication orders, directives, or plan of the

organization ;

(9) Has prepared documents, pampblets, leaflets, books

or any other type of publication in behalf of the

objectives and purposes of the organization ;

(10) Has mailed, shipped, circulated, distributed, deliv-

ered, or in any other way sent or delivered to others

materials cr propaganda of any kind in behalf of

the organization ;

(11) Has advised, counseled or in any other way im-

parted information, suggestions, recommendations

to officers or members of the organization or to any-

one else in behalf of the objectives of the organiza-

tion ;

(12) Has indicated by word, action, conduct, writing

or in any other way a willingness to carry out in any

manner and to any degree the plans, designs, ob-

jectives, or purposes of the organization;

(13) Has in any other way participated in the activi,

ties, planning, actions, objectives, or purposes of the

organization ;

(14) The enumeration of the above subjects of evidence

on membership or participation in a subversive

organization or a foreign subversive organization

as above defined, shall not limit the inquiry into

and consideration of any other subject of evidence

on membership and participation as herein stated.

588 :3-b Construction or Provision. Nothing in the pre-

ceding section shall be construed to limit the supervisory

power of the court over the admission and exclusion of

evidence or over the sufficiency of the evidence as a whole.

588:4 Barrep From Orrice. Any person who shall be

convicted by a court of competent jurisdiction of violating

any of the provisions of sections 2 and 3 of this chapter,

17

in addition to all other penalties therein provided, shall

from theate of such conviction be barred from:

(a) holding any office, elective or appointive, or any other

position of profit or trust in or employment by the govern-

ment of the state of New Hampshire or of any agency

thereof or of any county, municipal corporation or other

political subdivision of said state;

(b) filing or standing for election to any public office in

the state of New Hampshire.

588:5 DissoLuTion or Orcanizations. It shall be unlaw-

ful for any subversive organization or foreign subversive

organization to exist or function in the state of New Hamp-

shire and any organization which by a court of competent

jurisdiction is found to have violated the provisions of this

section shall be dissolved, and if it be a corporation organ-

ized and existing under the laws of the state of New Hamp-

shire, a finding by a court of competent jurisdiction that

it has violated the provisions of this section shall constitute

legal cause for forfeiture of its charter and its charter shall

be forfeited, and all funds, books, records and files of every

kind and all other property of any organization fuund to

have violated the provisions of this section shall be seized

by and for the state of New Hampshire, the funds to be

deposited in the state treasury and the books, records, files

and other property to be turned over to the attorney general

of New Hampshire.

588:6 Assistance Furnisuep. For the collection of any

evidence and information referred to in this chapter, the

attorney general is hereby directed to call upon the super-

intendent of the state police, and county and municipal

police authorities of the state to furnish him such assistance

as may from time to time be required. Such police author-

ities are directed to furnish information and assistance as

may be from time to time so requested. The attorney gen-

eral may testify before any grand jury as to matters re-

18

ferred to in this chapter as to which he may have informa-

tion.

588:7 Recorps. The attorney general shall maintain

complete records of all information received by him and

all matters handled by him under the requirements of this

chapter. Such records as may reflect on the loyalty of any

resident of this state shall not be made public nor divulged

to any person except with the permission of the attorney

general to effectuate the purposes thereof.

588:8 Granp Jury Inquires. The superior court, when

in its discretion it appears apppropriate, or when informed

by the attorney general that there is information or evi-

dence of the character described in section 2 of this chapter

to be considered by the grand jury, shall charge the grand

jury to inquire into violations of this chapter for the pur-

pose of proper action.

588 :8-a Arrorney GeneRAL. At any time when the attor-

ney general has information which he deems reasonable or

reliable relating to violations of the provisions of this chap-

ter he shall make full and complete investigation thereof

and shall report to the general court the results of this in-

vestigation, together with his recommendations, if any, for

legislation. In any investigation hereunder the attorney

general or any duly authorized member of his staff is

authorized to require by subpoena or otherwise the attend-

ance of such witnesses and the production of such corre-

spondence, books, papers and documents and to administer

such oaths, and to take such testimony and to make snch

expenditures within the funds provided as he deems advis-

able. The provisions of section 7 of this chapter shall be

inapplicable to the investigation provided for herein and

the attorney general is hereby authorized to make public

such information received by him, testimony given before

him, and matters handled by him as he deems fit to effectu-

ate the purposes hereof.

19

Loyatry.

588:9 EmpLoymMent. No subversive person, as defined

in this chapter, shall be eligible for employment in, or

appointment to any office, or any position of trust or profit

in the government of, or in the administration of the busi-

ness of this state, or of any county, municipality, or other

political subdivision, of this state.

588:10 Written SrateMEeNts Requirrep. Every person

and every board, commission, council, department, court or

other agency of the state of New Hampshire, or any politi-

cal subdivision thereof, who or which appoints or employs

or supervises in any manner the appointment or employ-

ment of public officials or employees shall establish by

rules, regulations or otherwise, procedures designed to as-

certain before any person, including teachers, and other

employees of any public educational institution in this

state, is appointed or employed, that he or she as the case

may be, is not a subversive person, and that there are no

reasonable grounds to believe such persons are subversive

persons. In the event such reasonable grounds exist, he or

she as the case may be, shall not be appointed or employed.

In securing any facts necessary to ascertain the informa-

tion herein required, the applicant shall be required to sign

a written statement containing answers to such inquiries

as may be material, which statement shall contain notice

that it.is subject to the penalties of perjury.

588:11 Exceptions. The inquiries prescribed in section

10 other than the written statement to be executed by an

applicant for employment, shall not be required as a pre-

requisite to the employment of any persons in the classifica-

tion of laborers in any case in which the employing author-

ity shall in his or its discretion determine and by rule or

regulation specify the reasons why, the nature of the work

to be performed is such that employment of persons as to

whom there may be reasonable grounds to believe that they

20

are subversive persons as defined in this chapter will not

be dangerous to the health of the citizens or the security

of the government of the United States, the state of New

Hampshire or any political subdivision thereof.

588:12 Present Empioyers. Every person, who on

August 1, 1951 shall be in the employ of the state of New

Hampshire or of any political subdivision thereof, other

than those now holding elective office shall be required on or

before October 1, 1951 to make a written statement which

shall contain notice that it is subject to the penalties of

perjury, that he or she is not a subversive person as de-

fined in this chapter, namely, any person who commits, at-

tempts to commit, or aids in the commission, or advocates,

abets, advises or teaches by any means any person to com-

mit, attempt to commit, or aid in the commission of any act

intended to overthrow, destroy or alter, or to assist in the

overthrow, destruction or alteration of, the constitutional

form of the government of the United States, or of the state

of New Hampshire, or any political subdivision of either

of them, by force, or violence; or who is a member of a

subversive organization or a foreign subversive organiza-

tion, as more fully defined in this chapter. Such statement

shall be prepared and execution required by every person

and every board, commission, council, department, court,

or other agency of the State of New Hampshire or any

political subdivision thereof responsible for the supervision

of employees under its jurisdiction. Any such person fail-

ing or refusing to execute such a statement or who admits

he is a subversive person as defined in this chapter shall

immediately be discharged.

588:13 Discuarce or PersonneL; Hearine. Reasonable

grounds on all the evidence to believe that any person is

a subversive person, as defined in this chapter shall be

cause for discharge from any appointive office or other

position of profit or trust in the government of or in the

21

administration of the business of this state, or of any

county, municipality or other political subdivision of this

state, or any agency thereof. The personnel commission

shall, by appropriate rules or regulations, prescribe that

persons charged with being subversive persons, as defined

in this chapter, shall be accorded notice and opportunity

to be heard, in accordance with the procedures prescribed

by law for discharges for other reasons. Every person

and every board, commission, council, department, or other

agency of the state of New Hampshire or any political sub-

division thereof having responsibility for the appointment,

employment or supervision of public employees not cov-

ered by the state classified service shall establish rules or

procedures similar to those required herein for classified

services for a hearing for any person charged with being

a subversive person, as defined in this chapter after notice

and opportunity to be heard. Every employing authority

discharging any person pursuant to any provision of this

chapter shall promptly report to the attorney general the

fact of and the circumstances surrounding such discharge.

A person discharged under the provisions of this section

shall have the right within thirty days thereafter to appeal

to the superior court of the county where such person may

reside for a determination by such court (with the aid of

a jury if the appellant so elects) as to whether or not the

discharge appealed from was justified under the provisions

of this act. The court shall speedily hear and determine

such appeals, and from the judgment of the court, there

shall be a further appeal to the supreme court of New

Hampshire as in civil cases.

588:14 Deciarations or Canpipates. No person shall

become a candidate for election to, nor qualify for, any

public office under the election laws of this state unless he

or she shall file with the declaration of candidacy, or prior

to qualifying, an affidavit that he or she is not a subversive

22

person as defined in this chapter. No declaration of

candidacy shall be received for filing by any town or city

clerk or by the secretary of state unless accompanied by

the affidavit aforesaid and there shall not be entered upon

any ballot or voting machine at any election the name of

the person who has failed or refused to make the affidavits

aforesaid.

588:15 Fause Srarements. Every written statement

made pursuant to this chapter by an applicant for appoint-

ment or employment, or by any employee shall be deemed

to have been made under oath if it contains a declaration

preceding the signature of the maker to the effect that it

is made under the penalties of perjury. Any person who

makes a material misstatement of fact (a) in any such

written statement, or (b) in any affidavit made pursuant to

the provisions of this chapter, or (c) under oath in any

hearing conducted by any agency of the state, or of any

of its political subdivisions, pursuant to this chapter, or

(d) in any written statement by an applicant for appoint-

ment or employment or by an employee in any state aid in-

stitution of learning in‘this state, intended to determine

whether or not such applicant or employee is a subversive

person as defined in this chapter, which statement contains

notice that it is subject to the penalties of perjury shall be

subject to the penalties of perjury prescribed in chapter

587, RSA.

588:16 Tirie. This chapter may be cited as the ‘‘Sub-

versive Activities Act of 1951.’’

23

\

Appendix B.

Opinion or Supreme Court or New HampsuHire.

Merrimack,

No. 5298.

Wituiam Maynarp, Arrorney GeneraL

v.

Hueco De Gregory

Argued January 5, 1965.

Decided April 30, 1965.

Petition under RSA 491:19, 20 to compel the defendant

to answer certain questions asked him in a legislative in-

vestigation of subversive activities by the Attorney Gen-

eral pursuant to the provisions of RSA 588:8-a (supp).

When directed by the Trial Court (Loughlin, J.) to an-

swer the propounded questions, defendant refused. He in-

formed the Court he was not invoking his privilege against

self incrimination. The Court adjudged him in contempt

and ordered him committed to jail for a period of one year

or until he purged himself of contempt. However, he was

released on his own recognizance pending this appeal.

William Maynard, Attorney General, R. Peter Shapiro,

Assistant Attorney General, and Joseph F. Gall, Special

Assistant to the Attorney General (Messrs. Shapiro and

Gall orally) for the Attorney General.

Lawrence J. Walsh and Howard S. Whiteside (of Massa-

chusetts) (Mr. Whiteside orally), for the defendant.

Lampron, J. The first issue raised by the defendant is

whether under the circumstances of this case the Attorney

General has power under RSA 588:8-a (supp) to question

him and whether the Superior Court has power to commit

him for his refusal to answer the questions asked.

24

RSA 588:8-c (supp) reads in part as follows: ‘‘At any

time when the Attorney General has information which he

deems reasonable or reliable relating to violations of the

provisions of this chapter he shall make full and complete

investigation thereof and shall report to the Genéyal Court

the results of this investigation, together with his recom-

mendations, if any, for legislation.’’ 4

We held in Wyman v. De Gregory, 103 N.H. 214, 216, 217,

that this ‘‘statute does not require that there must be a

violation of law before the legislative investigation can be

set in motion. It only requires that there be reasonable

and reliable information ‘relating’ to violations of the pro-

visions of RSA Ch. 588”’ relating to subversive activities.

This judgment was affirmed by the United States Supreme

Court. De Gregory v. Attorney General of New Hamp-

shire, 368 U.S. 19. That Court, as recently as March,

1963, reaffirmed the broad inherent power of a Legislature

to conduct investigations ‘‘concerning the administration

of existing laws as well as proposed or possibly needed

statutes.”’ Gibson v. Florida Legislative Investigation

Com., 372 U.S. 539, 545. See Annot. 3 L. Ed. 2d 1647, 1650.

The defendant argues, however, that the Attorney Gen-

eral did not comply with RSA 588:8-a (supp) in that he

failed to show (1) that he ‘‘bas information which he deems

reasonable or reliable relating to violations of the provisions

of’’ RSA ch. 588, aud (2) that he has reasonable cause

to believe that the defendant has evidence pertinent to the

subject under investigation.

It has long been recognized that the tenets of the Com-

munist Party include the overthrow of government by

force and violence. Nelson v. Wyman, 99 N.H. 33, 50;

Barenblatt v. United States, 360 U.S. 109, 128. That the

State of New Hampshire has an interest in the preservation

of its government against the menace of Communist sub-

version is firmly established. Nelson v. Wyman, supra;

25

Gibson v. Florida Legislative Investigation Com., 372 U.S.

539, 547. Furthermore our Legislature has manifested a

continuing concern to be kept informed by its investigating

committee, the Attorney General, as to the need of ‘‘further

legislation in the field of subversive activities.’’ Wyman

vy. De Gregory, 103 N.H. 214, 217; RSA 588:8-a (supp) ;

Laws 1961, 224:1 (p. 311) and 225:1 (p. 402); Laws 1963,

198:1 (p. 201) and 199:1 (p. 298).

In the present proceeding instituted in 1963 the Attorney

General introduced in evidence a report to the Legislature,

made by a prior Attorney General, showing the existence

of a Communist Party and Communist influence in New

Hampshire and the probable continuance of such activities

in our state. Report of the Attorney General to New

Hampshire General Court (January 5, 1955). In prior

proceedings beginning in February 1960, the Attorney

General attempted to obtain information from the defend-

aut, which he is still seeking in the present proceedings.

We hold that given the nature of the Communist move-

ment and its mode of operation the above report could

constitute information which the Attorney General could

deem reasonable or reliable relating to violations of RSA

ch. 588 and the proper basis for his present investigation:

of subversive activities on behalf of the Legislature. Wy-

man Vv. De Gregory, 103 N.H. 214, 217; De Gregory v. Attor-

ney General of New Hampshire, 368 U.S. 19; Gibson v.

Florida Legislative Investigation Com., 372 U.S. 539, 547.

It was also stated in the above report that the then

Attorney General had reliable information concerning de-

fendant’s participation in the Communist Party as an offi-

cer, a presiding officer at conferences in New Hampshire,

and in numerous other party activities. (pp. 204-206). When

questioned by the Attorney General on November 22, 1963,

and also in the Superior Court in the hearing which is the

basis of this appeal, the defendant made the following state-

26

ment: ‘‘I am not now a member of the Communist Party

and have not been at any time since the authority you have

cited, RSA 588 :8-a; that I have no knowledge of any Com-

munist. activities in New Hampshire during this period or

of any violations of RSA 588 during this period of six and

one-half years.’’ Even if taken at its face value, this state-

ment does not render otherwise proper and pertinent in-

formation regarding his prior contacts and involvements

with the Communist Party and its members in this State

beyond the legitimate interest and jurisdiction of the

Attorney General acting as the investigating committee of

the Legislature. Nelson v. Wyman, 99 N.H. 33, 39; Uphaus

v. Wyman, 360 U.S. 72, 78.

We hold, as we did in Wyman v. De Gregory, 103 N.H.

214, 217, that the Attorney General had reasonable and

reliable information relating to violations of RSA ch. 588

which provided a valid and relevant basis for the investiga-

tion of the defendant. We hold further that the Superior

Couri could properly hold the defendant in contempt under

RSA 491:19, 20 for his refusal to answer whether he was

ever a member, a paid member, or an officer of the Com-

munist Party; if he ever had access to or control of mem-

bership or financial records of the Party in New Hamp-

shire or attended Party meetings; the extent of control

of the Party activities in this state exerted by a Party unit

in Boston of which he is alleged to have been an officer; if

he attended Party meetings in New Hampshire where ad-

vocacy of the overthrow of the Government took place or

persons conspired to so do; also questions as to his knowl-

edge about the books, records or files of the Party in this

state and about his contributions to its support. Uphaus v.

Wyman, 360 U.S. 72; Barenblatt v. United States, 360 US.

109; Wilkinson v. United States, 365 U.S. 399; Braden v.

United States, 365 U.S. 431.

Defendant’s last contention is that if RSA 588:8-a

(supp) is held to empower the Attorney General in the

27

circumstances of this case, to require defendant to answer

questions, this statute is in contravention of the Fourteenth

Amendment. This is for the reason, in the words of his

brief, ‘‘that the danger to the State, which must be present

to warrant action under a statute like c. 588, s. 8A has not

been shown to exist at any time during plaintiff’s current

attempts to question defendant or in fact for years prior

thereto.”’

As we have stated previously in this opinion the investi-

gation of Communist Party activities in this state is within

the power of our Legislature and the authority granted to

its investigating committee, the Attorney General. Be-

cause of the nature of the Communist Party it is a proper

and permissible subject of constant scrutiny by the Legisla-

ture. Gibson v. Florida Legislative Investigation Com.,

372 U.S. 539, 547. A defendant’s own past or present mem-

bership in the Party is within the purview of such an inves-

tigation. Id. The nexus between the defendant and sub-

versive activities disclosed by the report offered in evidence

by the Attorney General and properly admitted by the

Court, furnished adequate justification for his present in-

terrogation of the defendant. The decisions in No. 44

American Committee for Protection of Foreign Born v.

Subversive Activities Control Board [380 U.S. 503], 33

L. W. 4836, and No. 65 Veterans of Abraham Lincoln Bri-

gade v. Subversive Activities Control Board [380 U.S. 513],

33 L. W. 4339 (decided April 26, 1965) are not apposite

to the situation existing in this case. This exercise by

the State of its power adequately to inform itself in order

to act and protect its legitimate and vital interests has

not been ‘‘pressed, in this instance, to a point where it

has come into fatal collision with the overriding constitu-

tionally protected rights’’ of the defendant. Uphaus v.

Wyman, 360 U.S. 72, 81.

Exceptions overruled.

28

Duncan, J., concurred in the result; the others concurred,

Duncan, J., concurring: The 1957 statute, under which

this proceeding was instituted in 1963, directs the Attorney

General to make an investigation of ‘‘violations’’ of the

‘‘Subversive Activities Act of 1951,’’ or of ‘‘information

. . relating to’’ such violations. RSA 588:8-a (supp),

Section 8-a and my views concerning it have not changed

since it was under consideration four years ago in a prior

proceeding against this defendant. See Wyman v. De-

Gregory, 103 N.H. 214, 218-219. ‘ihe foundation for the

most recent order that the defendant answer questions pro-

pounded by the Attorney General is once again the report

made by Attorney General Wyman to the Legislatw2 in

1955. However, I am bound to accept as decided law the

interpretation placed upon 4 8-a, supra, by a majority of

this court in Wyman . DeGregory, supra, since affirmed by

DeGregory v. Attorney General of New Hampshire, 368

U.S. 19, and therefore concur in the order entered today.