Appellees Brief — DeGregory v. Attorney General of New Hampshire

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INDEX

PAGE

STATEMENT OF THE CASE ,

QUESTIONS PRESENTED 3

4 SUMMARY OF ARGUMENT 4

I. The New Hampshire Supreme Court employed

the proper legal tests in upholding the consti-

tutionality of the Attorney General’s action as

a Legislative Investigating Committee. 9

I]. The determination of the New Hampshire Gen-

eral Court authorizing a continuous review of

subversive activities in and affecting the State

of New Hampshire by the Attorney General

acting as a Legislative Investigating Commit-

tee was a legitimate exercise of governmental

power. 11

Ill. The foundations prerequisite to the institution

of investigation into subversive activity and the

interrogation of Appellant have been laid by the

Attorney General with respect to the subject mat-

ter under investigation and Appellant’s relation

thereto. 14

[A] The Communist Party. 17

[B] Appellant’s relationship or nexus to the

Communist Party 19

[C] The Communist Party in and affecting

the State of New Hampshire 23

il.

Pace

IV. The cases of American Committee for Protection

of Foreign Born v. Subversive Activities Con-

trol Board and Veterans of The Abraham Lin-

coln Brigade v. Subversive Activities Control

Board ‘are not controlling. 28

V. The questions propounded to Appellant by the

Attorney General were relevant with reference

to the subject under investigation notwithstand-

ing the blanket denial of Appellant of any knowl-

edge of possible pertinent facts relating to the

past six and one-half years. 30

VI. The Appellant’s constitutional rights were not

violated with reference to the Attorney General’s

duty to lay a foundation with respect to appris-

ing Appellant of the topic under inquiry and the

connective reasoning whereby the precise ques-

tions relate to it. 34

CONCLUSION 35

APPENDIX (A-K) 36-82

A.

B.

C.

F.

J.

SUPPLEMENTAL INDEX TO APPENDICES

United States Constitution

Amendments 1, 4, 14(2)

New Hamp: hire Revised Statutes Annotated

Chapter 491

New Hampshire Revised Statutes Annotated

Chapter 588

Louis U. Wyman, Attorney General v.

Bugo DeGregory, 103 N.H. 214

Hugo DeGregory, Appellant, v. Attorney

General of New Hampshire

368 US.19, 7 L ed 2a 86,62 S Ct. 137

William Maynard, Attorney General v.

Hugo DeGregory

106 NH. 263

Commnist Activities in New Hampshire

Organizational Structure of the Communist

Party in New Hampshire

Brief History of Cammunist Party in New

Hampshire

Discernible Highlights of the Comumnist

Party in New Hampshire

Hugo DeGregory

65

67

iii.

CASES CITED

PAGE

American Committee For Protection of Foreign Born

y. Subversive Activities Control Board 380 U.S. 503,

14 L ed 2d 39, 85 S. Ct. 1148 (1965) 28

Attorney General v. DeGregory, 106 N.H. 262, 209 A

2d 712 (1965) 3, a S 1637, 33

Barenblatt v. U.S., 360 U.S. 109, 3 L ed 2d 1115, 79

S. Ct. 1081 (1959) 6, 7, 8, 9, 18, 22, 26, 28, 30, 34

Braden v. U.S., 365 U.S. 431, 5 L ed 2d 653, 81 S. Ct.

584 (1961) 8, 20

Carlson v. Landon, 342 U.S. 524, 96 L ed 547, 72 S.

Ct. 525 (1952) 19

Chapman, In re, 166 U.S. 661, 41 L ed 1154 (1897) 30

Communist Party of The United States v. Subversive

Activities Control Board, 367 U.S. 1, 6 L ed 2d 625,

81 S. Ct. 1357 (1961) 8, 29, 33

DeGregory v. Attorney General, 368 U.S. 19, 7 L ed

2d 86, 82 S. Ct. 137 (1961) 2, 4, 5, 6, 8, 10, 11,

12, 15, 16, 19, 22, 33

Dennis v. U.S., 341 U.S. 494, 95 L ed 1137, 71 S. Ct.

857 (1951) 11

Gibson v. Florida Legislative Investigation Committee,

372 U.S. 539, 9 L ed 2d 929, 83 S. Ct. 889 (1963) 6, 7,

11, 18, 19, 20, 21, 26, 28

Gitlow v. New York, 268 U.S. 652, 69 Led 1138

(1925) 11

Jurney v. MacCracken, 294 U.S. 125, 79 L ed 802

(1935) 12

Kahn v. Wyman, 100 N.H. 245, 123 A 2d 166 (1956) 10

Pace

Kilbourn v. Thompson, 103 U.S. 168, 26 L ed 377

(1881) 12

McGrain v. Daugherty, 273 U.S. 135, 71 L ed 580

(1927) 12, 30

Nelson v. Wyman, 99 N.H. 33, 105 A 2d 756

(1954) 9, 11, 33

Pennsylvania v. Nelson, 350 U.S. 497, 100 L Ed 640,

76 S. Ct. 477 (1956) 7

Sinclair v. U.S., 279 U.S. 263, 73 L Ed 692 (1929) 8, 12

Sweezy v. Wyman, 354 U.S. 234, 1 L ed 2d 1311, 77

S. Ct. 1203 (1957) 10, 22

United States v. Josephson, 165 F 2d 82 (2 cir 1947) 30

United States v. Ormand, 207 F 2d 148 (3d cir 1953) 30

United States v. Rumely, 345 U.S. 41, 97 L Ed 770,

73S. Ct. 543 (1953) 30

Uphaus v. Wyman, 355 U.S. 16, 2 L ed 2d 22, 78 S.

Ct. 57 (1957) 10

Uphaus v. Wyman, 360 U.S. 72, 3 L ed 2d 1090, 79

S. Ct. 1040 (1959) 5, 7, 8, 10, 11, 12, 16, 22, 33

Veterans of the Abraham Lincoln Brigade v. Subver-

sive Activities Control Board, 380 U.S. 513, 14 L

ed 2d 46, 85 S. Ct. 1153 (1965) 28

Watkins v. United States, 354 U.S. 178, 1 L ed 2d

1273, 77 S. Ct. 1173 (1957) 9, 21, 34

Wilkinson v. U.S., 365 U.S. 399, 5 L ed 2d 633, 81

S. Ct. 567 (1961) 20

Wyman v. DeGregory, 101 N.H. 171, 137 A 2d 512

(1957) 10

PAGE

Wyman v. DeGregory, 103 N.H. 214, 169 A 2d 1

(1961) 2, 4, 5, 6, 8, 10, 11, 12, 15, 16, 19, 23, 33

Wyman v. Sweezy, 100 N.H. 103, 121 A 2d 783

(1956)

Wyman v. Uphaus, 100 N.H. 436, 130 A 2d 278

(1957)

Wyman v. Uphaus, 101 N.H. 139, 136 A 2d 221

(1957) 10,

Wyman v. Uphaus, 102 N.H. 461, 159 A 2d 160

(1960)

STATUTES

New Hampshire Laws 1957, Chapt. 178, p. 213

Chapt. 347, p. 538 5,

New Hampshire Laws 1961, Chapt. 224:1, p. 33

Chapt. 225, p. 402

New Hampshire Laws 1963, Chapt. 198:1, p. 201

Chapt. 199:1, p. 298

New Hampshire Laws 1965, Chapt. 239, p. 300

Chapt. 282, p. 470

New Hampshire Revised Statutes Annotated:

Chapt. 491 :20

10

10

12

10

12

13

14

14

14

14

14

14

3

Chapt. 588 3, 4, 5, 6, 7, 11,

15, 16, 21, 22, 28

Chapt. 588:8-a (supp)

4, 5, 14,

Title 28, U.S.C. s. 1257 (2)

Title 50, U.S.C. s. 786, Subversive Activities Control

2,

15

3

Act (s. 7) 64 Stat. 987, 993 19, 29

vi.

UNITED STATES CONSTITUTION

Pace

First Amendment 4

Fourth Amendment 4

Fourteenth Amendment 4

MISCELLANEOUS

33 BU Law Review 337, (1953), Liacos, “Rights of

Witnesses Before Congressional Committees” 30

Report of the Attorney General to the New Hampshire

General Court (January 5, 1955) 3, 4, 6, 16, 19, 22,

23, 24, 25, 26, 27, 34

Supreme Court of the United States

October Term, 1965

No. 396

HUGO DeGREGORY, Appellant

Vv.

ATTORNEY GENERAL OF THE

STATE OF NEW HAMPSHIRE, Appellee

APPEAL FROM THE SUPREME COURT

THE STATE OF NEW HAMPSHIRE

BRIEF FOR APPELLEE

STATEMENT OF THE CASE

The various Attorneys General of the State of New

Hampshire, pursuant to legislative mandate, acting as a

legislative fact-finding committee, have, since 1953, ex-

tensively investigated the subject of subversion, and par-

ticularly communism as it relates to the State of New

Hampshire. The overriding, motive for said legislative

mandate is the self-preservatten and protection of the

State, which can best be accomplished by a fact-finding

2

committee, in this instance the Attorney General, garner.

ing relevant data to present to the legislature. Said data

shall be the basis for possible future legislation to effect.

uate the self-preservation and protection of the State of

New Hampshire.

Since June 12, 1955 the Appellant has been summonsed

as a witness to testify as to his knowledge of past and

present membership in and activities of the Communist

Party in and affecting the State of New Hampshire. The

Supreme Court of New Hampshire and the United States

Supreme Court have consistently upheld the actions of the

Attorney General and the validity of the investigating

statutes while overruling Appellant. In spite of the many

court rulings Appellant continues to assume a stolid pos-

ture and refuses to testify as requested.

Pursuant to the decisions of the courts in Wyman y,

DeGregory, 103 N.H. 214, 169A 2d 1; aff'd 368 US,

19, 7 L. ed. 2d 86, 82 S. Ct. 137 (1961) the Appellant on

November 12, 1963 purged himself of contempt by ap-

pearing at the Hillsborough County Court House and

answering in the negative the question “Are you presently .

a member of the Communist Party?” This is the only

direct answer Appellant has ever given to the Attorneys

General. The Attorney General, at said hearing, attempted

to direct some other questions to DeGregory. The Court

declined to allow further questioning, ostensibly on the

premise that once DeGregory had purged himself of con-

tempt the Court’s jurisdiction ceased and the Attorney

General, in his capacity as a legislative fact-finding com-

mittee, should continue his probe for facts in the manner

outlined by N.H. RSA Chapter 588 :8-a (supp).

The foregoing is the plateau upon which the present

proceedings are based. Because of the need for facts which

could only be elicited from Appellant by extensive and de-

tailed questioning concerning Communist Party activities

3

and membership in and affecting New Hampshire, present

and past, further proceedings under the continuing in-

vestigatory authority of the delegated legislative commit-

tee were initiated on November 22, 1963. Appellant ap-

peared and refused to answer certain questions propounded

to him on the theory that the Attorney General had not

laid a foundation upon which he could initiate his investiga-

tion and base his examination of Appellant. Whereupon

the matter, as required by N.H. RSA Chapter 491:20,

was transferred to the Superior Court. The Attorney Gen-

eral’s foundation consisted of THE REPORT OF THE

ATTORNEY GENERAL TO THE NEW HAMP-

SHIRE GENERAL COURT, January 5, 1955 [R. 14,

Exhibit I] and the patently obvious nature of the Com-

munist movement and its mode of operation. DeGregory

then stated to the court he had no relationship or knowl-

edge of the Communist activity in New Hampshire for the

previous six and one-half years. [R. 15] Appellant was

held in contempt of court for his failure to answer ques-

tions propounded to him by the Attorney General. The

Court held that the Attorney General had laid the proper

foundation to enable him to interrogate Appellant regard-

ing the communist movement in and affecting New Hamp-

shire.

A reserved case was filed and entered in the New Hamp-

shire Supreme Court on October 22, 1964. The New Hamp-

shire Supreme Court affirmed the decision of the Superior

Court of May 27, 1964. Attorney General v. DeGregory,

106 N.H. 262, 209 A. 2d 712 (April 1965). This matter

is now before the United States Supreme Court pursuant

to Title 28, U.S. Code, § 1257 (2).

QUESTIONS PRESENTED

Did the application of RSA 588, with reference to

Appellant’s contempt citation in the instant case, violate

4

his constitutional rights of due process of law under the

First, Fourth and Fourteenth Amendments to the United

States Constitution? Otherwise stated: In light of the ree.

ord has the State’s interest been pressed, in this instance,

to a point where it has come into fatal collision with the

overriding constitutionally protected rights of Appellant?

(a) Has the passage of time from the compilation of

Exhibit 1 (Report of the Attorney General to the

New Hampshire General Court, January 5, 1955)

[R. 14] to the interrogation of DeGregory on

November 22, 1963 been of such magnitude as to

destroy the basis or foundation laid by the At-

torney General in order to institute his investiga-

tion pursuant to N.H. RSA Chapter 588:8-a

(Supp.) and to question DeGregory as to the sub-

ject matter of Communism? the basis of said

foundation being said Exhibit 1 [R. 14] and the

present patently obvious nature of the Communist

movement and its mode of operation?

(b) May a witness, merely by a general denial of sub-

versive activity or of knowledge thereof, fore-

close further pertinent inquiry into his activities,

and control the form of the questions being pro-

pounded by the legislative fact finding committee?

The constitutionality of N. H. RSA 588 is not now in

issue as it was not raised in the instant case; and, since its

constitutionality has previously been upheld in Wyman v.

DeGregory, 103 N.H. 214, 169, A. 2d, Aff’d, 368 USS.

19, 7 L ed 2d 86, 82 S. Ct. 137 (1961).

SUMMAR*‘% OF ARGUMENT

The sole issue in the case at bar is the constitutionality

of the application of N.H. RSA 588 with reference to Ap-

pellant and not the constitutionality of the statute. The New

5

Hampshire Supreme Court, long experienced in the field

of legislative fact-finding actions, employed the appropriate

legal tests. That is the New Hampshire Courts held “the

legitimate and vital interests of the State has not been

in this instance to a point where it has come into

fatal collision with the witnesses overriding constitutionally

ected rights” Attorney General v. DeGregory, 106

N.H. 262, 209 A. 2d 712 (1965). The case is now before

this Honorable Court on appeal to decide in effect whether

there is any evidence in the record to support the position

of the New Hampshire Courts.

The statute RSA 588 has been held constitutional.

DeGregory v. Attorney General, 368 U.S. 19° 1. ed. 2d

86, 82 S. Ct. 137 (1961). Self-preservation is a legitimate

function of government, and may be implemented in the

manner prescribed in RSA 588. Wyman v. Uphaus, 360

U.S. 72, 3 L. ed. 2d 1090, 79 S. Ct. 1040 (1959): Wy-

man V. DeGregory, 103 N. H. 214, 169 A. 2d, 1 aff’d

368 U.S. 19, 7 L. ed. 2d 86, 82 S. Ct. 137 (1961). It is

also clear that the New Hampshire Legislature wishes to

be informed on all phases of the topic under investigation.

N.H. Laws 1957, Chapter 347, p. 538.

In order for the Attorney General to initiate his investi-

gations, certain circumstances must come into play in order

for him to operate pursuant to N.H. RSA 588:8-a. The

circumstances which trigger his investigation are “infor-

mation which he deems reasonable or reliable relating to

violations of the provisions of this chapter”... . N. H.

RSA 588 :8-a.

The statute is not so narrow as to require specific viola-

tions of law to be shown prior to questioning a party as

to his knowledge about them. The Attorney General is per-

mitted to determine the presence of subversive people in

the state and the extent of subversive activity generally in

and affecting the state where his information relating to

6

violations of the provisions of RSA 588 is reasonable and

reliable. Wyman v. DeGregory, 103 N.H. 214, 169 A 24

1, aff'd 368 U.S. 19, 7 L. ed 2d 86, 82 S. Ct. 137 (1961),

The Attorney General in the instant case was clothed with

the following information:

(1) That the inherent nature of the Communist Party

is today and has been such that it is a proper area for

legislative investigation. Its aim is the eventual overthrow,

by any means or at any cost, of our democratic form of

government. The Communist Party’s mode of operation is

slow and methodical, by creating dissention and infiltrat-

ing key areas of our political, military, academic, and

economic factions of society. Its membership and activity

are kept secret with knowledge of such facts known by

only a handful of members. Communism is the silent enemy

which patiently waits to strike more like the proverbial

“snake in the grass” than the “bull in the china shop”.

Note Barenblatt v. U. S. 360 U.S. 109, 128, 129, 3 L. ed.

2d 1115, 79 S. Ct. 1081 (1959); Gibson v. Florida Legis-

lative Committee 372 U.S. 539, 547, 9 L. ed. 2d 929, 33

S. Ct. 889 (1963).

(2) Exhibit I, The Report of the Attorney General

to the New Hampshire General Court, January 5, 1955

[R. 14] portrays Communist activity in and affecting the

State of New Hampshire. District I, in Boston, Massachu-

setts, was the lead unit with respect to the New England

area, with New Hampshire and its various cells and sub-

cells being an integral part thereof. Major areas of con-

centration were World Fellowship, Inc., educational in-

stitutions, the P.T.A., and labor groups. There averaged

fifty to one hundred hard core Communists in the state

with many more sympathizers and “front organizations”

in the foreground. The Party’s:mode of operation in the

state was similar to that on a world basis as were their

respective goals.

7

(3) The targets of Communist infiltration in New

Hampshire are still present; military installations, educa-

tional institutions, labor unions, defense and aero-space

industries. Also still present in the state are many of the

hard core Communists and Communist sympathizers, in-

cluding Hugo DeGregory the alleged leader of the Com-

munist Party in New Hampshire.

The Attorney General, knowing the past and present

aims and methods of operation of the Communist Party,

and the past methods, aims, membership, and targets of

the Communist Party in and affecting New Hampshire,

coupled with the presence of these former members and

sympathizers, including Appellant’s presence in the State,

it was reasonable for him to assume that subversives were

present in the state and that there were violations of RSA

588. Thus the circumstances were present to “trigger” the

Attorney General’s legislative fact-finding investigation.

The pre-emption of subversive investigation by the Fed-

eral Government as outlined in Pennsylvania v. Nelson,

350 U.S. 497, 100 L. ed. 640, 76 S. Ct. 477 (1956) does

not apply to the present case as we are dealing with

activity which directly affects the State of New Hamp-

shire. Uphaus v. Wyman, 360 U.S. 72, 76, 3 L. ed 2d 1090,

79S. Ct. 1040 (1959).

Once the fact-finding investigation has properly begun

the Attorney General in order to call a specific witness must

show a relationship or nexus between the subject under

investigation and the witness. Uphaus v. Wyman, 360 U.S.

72, 78-80, 3 L. ed. 2d 1090, 79 S. Ct. 1040 (1959); Gib- -

son V. Florida Legislative Committee, 372 U.S. 539, 9 L.

ed. 2d 929, 83 S Ct. 889 (1963); Barenblatt v. U.S., 360

US. 109, 3 L. ed. 2d 1115, 79 S. Ct. 1081 (1959). A read-

ing of the pertinent cases indicates that the nexus or rela-

tionship need not be of present origin if the information

sought to be illicited was relevant to the present investiga-

tion. Gibson v. Florida Legislative Committee, Supra,

we