Wyman v. DeGregory

Lampron, J. Laws 1955, c. 312, provides for a grant of immunity to a witness summoned by the Attorney General in the course of the investigation of subversive activities as provided in Laws 1953, c. 307, as amended by Laws 1955, c. 197. It is intended to operate solely in conjunction with such investigation. Its use is therefore dependent on the constitutionality of that investigation. We have decided in Nelson v. Wyman, 99 N. H. 33, 36, that the Legislature had the power to order an investigation of subversive activities in our state. After the divided opinion of the Supreme Court of the United States in Pennsylvania v. Nelson, 350 U. S. 497 , we held that “if state investigation of subversive activities is to be prohibited, a declaration to that effect must come from higher authority than this court.” Kahn v. Wyman, 100 N. H. 245, 246. A careful examination of the opinions in Watkins v. United States, supra, and Sweezy v. New Hampshire, supra, reveals no such prohibition. Wyman v. Uphaus, 101 N. H. 139. See dissenting opinion of Justice Clark in the Sweezy case, supra; The Supreme Court, 1956 Term, 71 Harv. L. Rev. 85 , 141-146; McCloskcy, Civil Liberties in 1956 Term of the Supreme Court, 43 Va. L. Rev. 803 , 816-821. We therefore proceed to consider the constitutionality of said immunity statute. Laws 1955, c. 312. Article 15th, Part I, of the Constitution of New Hampshire provides that “no subject shall ... be compelled to accuse or furnish evidence against himself” and the Fifth Amendment of the Federal Constitution provides that “no person . . . shall be compelled in any criminal case to be a witness against himself.” Both of these provisions are designed to preserve the common-law privilege afforded a witness to refuse to answer any question which would incriminate him “in other words, to give testimony which may possibly expose him to a criminal charge.” Ullmann v. United States, 350 U. S. 422, 431 . These constitutional provisions protect the witness against the danger of criminal prosecution which might arise from enforced disclosures but not against disgrace, infamy or other consequences which might follow from his testimony. Brown v. Walker, 161 U. S. 591 ; Ullmann v. United States, supra. VIII Wig. Ev. (3rd ed.) s. 2255, p. 327. Sec Nelson v. Wyman, 99 N. H. 33, 44; anno. *174 100 L. Ed. 535 , 540. “It follows therefore that if at the time of the claim of privilege, the liability of the witness to be convicted of the offense inquired about has been terminated, because of an acquittal, prior conviction, pardon, or otherwise, the privilege does not exist for such conduct.” Wyman v. DeGregory, 100 N. H. 163, 165; In re Pillo, 11 N. J. 8; Brown v. Walker, supra, 598, 599 . In other words these constitutional guaranties against self-incrimination do not give a witness an absolute right to silence. If the danger against which the privilege is intended to protect, namely, criminal prosecution, is removed by a statute so designed, the constitutional privileges against self-incrimination cease to apply and the witness cannot refuse to answer on that ground. Hale v. Henkel, 201 U. S. 43, 67 ; Wyman v. DeGregory, supra, 165. See anno., 118 A. L. R. 602, 619; 53 A. L. R. (2d) 1030. The purpose of Laws 1955, c. 312, and of similar acts, commonly called immunity statutes, is to take away the criminality of the offense inquired about and thus “remove those sanctions which generate the fear justifying invocation of the privilege.” Ullmann v. United States, supra, 431 . Immunity statutes, some of which have existed approximately a century, have constituted an integral and hitherto unquestioned part of our statutory law. RSA 7:27; 15:7; 68:9; 69:28; 149:17; 176:16; 282:9(o); 356:6; 365:16; 402:72 ; 405:23; 417:16; 589:6; 609:10. While these relate primarily to matters of state concern it is not unlikely that disclosures made thereunder might constitute the basis of a prosecution under federal law or under the law of another state. The Fifth Amendment of the Federal Constitution does not in itself apply to a state matter such as is involved here and it is our opinion that it has not been made applicable by the Fourteenth Amendment. Brown v. Walker, supra, 606 ; Jack v. Kansas, 199 U. S. 372 ; In re Pillo, supra. See 70 Harv. L. Rev. 1454 , 1463. As to the Fifteenth Article of the New Hampshire Constitution, an immunity statute which protects a witness against criminal conviction in our state courts from disclosures which he may be compelled to make satisfies its requirements. “Being no longer liable to prosecution, he is not compelled, by testifying, to accuse or furnish evidence against himself.” State v. Nowell, 58 N. H. 314, 315. Our Legislature, however, cannot enact a law which can grant to a witness immunity from criminal prosecution in the other 47 states or in the federal courts as a result of forced disclosures *175 made in a legislative investigation or other proceedings conducted in this state. Feldman v. United States, 322 U. S. 487 ; Dunham v. OUinger, 243 N. Y. 423 . It has been held in one case that the privilege against self-incrimination exonerates from disclosures whenever there is a probability of prosecution in a sister state or in a federal court. People v. DenUyl, 318 Mich. 645 . However, the overwhelming majority of the decided cases has held that full and complete immunity against prosecution by the government compelling the witness to answer is equivalent to the protection furnished by the privilege against compulsory self-incrimination. United States v. Murdock, 284 H. S. 141, 149; Feldman v. United States, supra; State v. Wood, 99 Vt. 490 ; Cabot v. Corcoran, 332 Mass. 44 ; State v. Morgan, 164 Ohio St. 529 . See anno., 59 A. L. R. 895; 82 A. L. R. 1380 ; 38 A. L. R. (2d) 257, 267. These holdings are not in violation of the Fourteenth Amendment of the Federal Constitution. Jack v. Kansas, supra; Twining v. New Jersey, 211 U. S. 78, 93 . See Snyder v. Massachusetts, 291 U. S. 97, 105 ; Palko v. Connecticut, 302 U. S. 319, 325, 326 . We are in accord with the majority view and so decide. The privilege against self-incrimination with which we are concerned here is granted to the defendant by Article Fifteenth of the Constitution of New Hampshire. This privilege is necessarily limited to prosecutions in the courts of our state. “The boundaries of our Constitution and our sovereignty are coextensive. A constitution is intended to protect the accused against the methods of its own jurisdiction and no other.” VIII Wig. Ev. (3rd ed.) s. 2258, p. 338. Laws 1955 c. 312, protects the defendant against criminal convictions in our state courts from disclosures which he may be compelled to make thereunder. This protection is coextensive with the privilege invoked. Our Constitution cannot grant to the defendant a privilege against self-incrimination in a criminal proceeding in any of the other 47 states or in the federal courts. An immunity statute cannot be held invalid because it does no more. Cabot v. Corcoran, supra. Laws 1955, c. 312, provides that “No witness summoned ... in the course of the investigation of subversive activities . . . shall be excused from giving his testimony . . . upon the ground that such testimony . . . could tend to incriminate him provided that upon claim of privilege against self-incrimination, on relation of the attorney general, any justice of the superior court had adjudged the testimony of such witness ... to be necessary in the public *176 interest confirmed by such justice in a written communication to the witness.” The statute further provides that such disclosures shall not be used against the witness, as the subject of or as evidence in a criminal prosecution pertaining thereto. Defendant argues that this statute is unconstitutional because it violates the doctrine of separation of powers. N. H. Const., Pt. I, Art. 37th; U. S. Const., Arts. I, II, III. We fail to see how the doctrine of separation of powers under the Federal Constitution is involved if the statute complies with the provisions of our State Constitution in the matter. Leiter Minerals v. United States, 352 U. S. 220 ; Sweezy v. New Hampshire, supra, 255. It is also important to bear in mind in considering this argument the significant differences between the Federal and our State Constitution in their provisions granting power to the respective judiciaries as well as the historical background surrounding their adoptions. Under Article III, section 2 of the United States Constitution “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties ... to controversies to which the United States shall be a party . ... ” “The result of the limitation is that the Court’s only power is to decide lawsuits between adversary litigants with real interest at stake, and its only method of proceeding is by the conventional judicial, as distinguished from legislative or administrative process. This precludes the rendering of advisory opinions even at the request of the nation’s President ... It also precludes imposition on federal constitutional courts of nonjudicial duties . . . A federal court can perform but one function — that of deciding litigation — and can proceed in no manner except by the judicial process.” Jackson, The Supreme Court in the American System of Government, 11, 12; Muskrat v. United States, 219 U. S. 346, 356 ; Chicago & S. Air Lines v. Waterman Corp., 333 U. S. 103, 113 ; McGrath v. Kristensen, 340 U. S. 162 . Thus the courts created under the Federal Constitution can act only in “cases” and “controversies” and cannot give advisory opinions. Nowhere in the law of this state is the function of our courts specifically limited to “cases” and “controversies.” Furthermore Part II, Article 74th, of our Constitution provides that “Each branch of the legislature as well as the governor and council shall have authority to require the opinions of the justices of the [supreme court] upon important questions of law and upon solemn occasions.” Also as pointed out in Attorney General v. Morin, 93 *177 N. H. 40, 44, “it is abundantly clear that the men of 1784 [framers of our Constitution] had lived under a judicial system in which the courts were called upon to exereise a wide variety of functions which were chiefly executive, though sometimes legislative in character.” An examination of the Revised Statutes Annotated will reveal that similar functions are still in existence of which the following are but a few illustrations. The duty to appoint county auditors, to order special examinations and to fix the number of audits to be made in a year. RSA 25:1, 2,3. The power to appoint inspectors of elections when not made by a city within the time specified. RSA 59:33. The power to allow a reasonable sum for services performed by a person in bringing to justice an offender charged with a crime. RSA 610:2. It is also pointed out in the above Morin case at page 46, that “with reference to the purpose of Article 37 of the Bill of Rights, it should be remembered that during the Revolution all sorts of executive and many judicial powers had been exercised by the Legislature and this practice had resulted in great dissatisfaction . . . The convention was engaged in setting up new executive and judicial branches of the State Government and it may well have been that the prime purpose of Article 37 in the minds of its framers was to protect these new departments from legislative encroachment rather than to circumscribe within strict limits the functions of the Court.” An examination of the legislative history of said Laws 1955, c. 312, shows that the Attorney General in a report transmitted to the Legislature (Attorney General’s Report on Subversive Activities in Now Hampshire 1955, ¶. 3) recommended that it enact a law vesting “authority in the Attorney General to grant immunity to a witness when he finds such a grant ... to be in the public interest.” A bill incorporating this proposal was introduced. Under its provisions the grant of immunity was to be made when “the Attorney General has adjudged the testimony of such witness . . . to be necessary in the public interest confirmed by him in a written communication to the witness.” This bill was defeated. Later in the same session said chapter 312 was adopted. It was almost identical in language. Under it however the grant of immunity was to be made when “on relation of the attorney general, any justice of the superior court has adjudged the testimony of such witness ... to be necessary in the public interest confirmed by such justice in a written communication to the *178 witness.” It seems to us that the Legislature by its recourse to a Justice merely intended to have an impartial person experienced in the matter approve the grant of immunity. When performing this same function which under the proposed bill was to be performed by the Attorney General, the Justice of the Superior Court is not exercising his usual function of deciding litigation between adverse parties in a judicial proceeding. However, in view of the historical background in which our Constitution was framed as well as the fact that it has no specific provision limiting the function of a ' Justice of the Superior Court to “cases” and “controversies” we are of the opinion that the functions conferred on the “justice of the superior court” by said chapter 312 do not violate our Constitution. We decided in Wyman v. DeGregory, 100 N. H. 163, 167, that the Legislature did not intend that a notice and hearing be given to a witness before a grant of immunity was made under said chapter 312. As we have stated above the grant of immunity made thereunder by a Justice of the Superior Court is not made in a judicial proceeding. There is therefore no legal requirement that notice and an opportunity to be heard be given to the defendant before immunity is granted. DiPietro v. Lavigne, 98 N. H. 294. See Governor & Council v. Morey, 78 N. H. 125; State v. 4.7 Acres of Land, 95 N. H. 291. The Trial Court’s refusal to rule on the constitutionality of Laws 1955, c. 312, prior to questioning of the defendant was proper. The question presented involved mainly the interpretation of the Constitution of New Hampshire and that question is for the determination of this tribunal. State v. Company, 84 N. H. 322, 327. This statute not being clearly unconstitutional on its face (Velishka v. Nashua, 99 N. H. 161, 165) the Trial Court could properly assume its constitutionality until it was decided otherwise in this court. Nelson v. Wyman , 99 N. H. 33, 50. Defendant’s argument that the sentence of the Trial Court was not properly or constitutionally imposed is not valid. This issue was decided adversely to his contentions in Wyman v. Uphaus, 100 N. H. 436, 448, and we have not altered the views there expressed. Exceptions overruled. Wheeler, J., did not sit; Duncan, J., dissented; the others concurred. .