Held: Petitioner was not accorded a fair opportunity to determine whether he was within his rights in refusing to answer, and his conviction was invalid under the Due Process Clause of the Fifth Amendment. Pp. 354 U. S. 181-216.
(a) The power of Congress to conduct investigations, inherent in the legislative process, is broad, but it is not unlimited. P. 354 U. S. 187.
(b) Congress has no general authority to expose the private affairs of individuals without justification in terms of the functions of Congress. P. 354 U. S. 187.
(c) No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of Congress. P. 354 U. S. 187.
(d) The Bill of Rights is applicable to congressional investigations, as it is to all forms of governmental action. P. 354 U. S. 188.
(e) A congressional investigation is subject to the command that Congress shall make no law abridging freedom of speech or press or assembly. Pp. 354 U. S. 196-197.
(f) When First Amendment rights are threatened, the delegation of power to a congressional committee must be clearly revealed in its charter. United States v. Rumely, 345 U. S. 41. P. 354 U. S. 198.
(g) A congressional investigation into individual affairs is invalid if unrelated to any legislative purpose, because it is beyond the powers conferred upon Congress by the Constitution. Kilbourn v. Thompson, 103 U. S. 168. P. 354 U. S. 198.
(h) It cannot simply be assumed that every congressional investigation is justified by a public need that overbalances any private rights affected, since to do so would be to abdicate the responsibility placed by the Constitution upon the judiciary to insure that Congress does not unjustifiably encroach upon an individual's right of privacy nor abridge his liberty of speech, press, religion or assembly. Pp. 354 U. S. 198-199.
(i) There is no congressional power to expose for the sake of exposure where the predominant result can be only an invasion of the private rights of individuals. P. 354 U. S. 200.
(j) In authorizing an investigation by a committee, it is essential that the Senate or House should spell out the committee's jurisdiction and purpose with sufficient particularity to insure that compulsory process is used only in furtherance of a legislative purpose. P. 354 U. S. 201.
(k) The resolution authorizing the Un-American Activities Committee does not satisfy this requirement, especially when read in the light of the practices of the Committee and subsequent actions of the House of Representatives extending the life of the Committee. Pp. 354 U. S. 201-205.
(l) Every reasonable indulgence of legality must be accorded to the actions of a coordinate branch of our Government, but such deference cannot yield to an unnecessary and unreasonable dissipation of precious constitutional freedoms. P. 354 U. S. 204.
(m) Protected freedoms should not be placed in danger in the absence of a clear determination by the House or Senate that a particular inquiry is justified by specific legislative need. P. 354 U. S. 205.
(n) Congressional investigating committees are restricted to the missions delegated to them -- to acquire certain data to be used by the House or Senate in coping with a problem that falls within its legislative sphere -- and no witness can be compelled to make disclosures on matters outside that area. P. 354 U. S. 206.
(o) When the definition of jurisdictional pertinency is as uncertain and wavering as in the case of the Un-American Activities Committee, it becomes extremely difficult for the Committee to limit its inquiries to statutory pertinency. P. 354 U. S. 206.
(p) The courts must accord to a defendant indicted under 2 U.S.C. § 192 every right which is guaranteed to defendants in all other criminal cases, including the right to have available information revealing the standard of criminality before the commission of the alleged offense. Pp. 354 U. S. 207-208.
(q) Since the statute defines the crime as refusal to answer "any question pertinent to the question under inquiry," part of the standard of criminality is the pertinency of the questions propounded to the witness. P. 354 U. S. 208.
(r) Due process requires that a witness before a congressional investigating committee should not be compelled to decide, at peril of criminal prosecution, whether to answer questions propounded to him without first knowing the "question under inquiry" with the same degree of explicitness and clarity that the Due Process Clause requires in the expression of any element of a criminal offense. Sinclair v. United States, 279 U. S. 263. Pp. 354 U. S. 208-209.
(s) The authorizing resolution, the remarks of the chairman or members of the committee, or even the nature of the proceedings themselves, might make the "question under inquiry" sufficiently clear to avoid the "vice of vagueness"; but these sources often leave the matter in grave doubt. P. 354 U. S. 209.
(t) In this case, it is not necessary to pass on the question whether the authorizing resolution defines the "question under inquiry" with sufficient clarity, since the Government does not contend that it could serve that purpose. P. 354 U. S. 209.
(u) The opening statement of the Chairman at the outset of the hearings here involved is insufficient to serve that purpose, since it merely paraphrased the authorizing resolution, and gave a very general sketch of the past efforts of the Committee. Pp. 354 U. S. 209-210.
(v) Nor was that purpose served by the action of the full Committee in authorizing the creation of the Subcommittee before which petitioner appeared, since it merely authorized the Chairman to appoint subcommittees "for the purpose of performing any and all acts which the Committee as a whole is authorized to do." Pp. 354 U. S. 211-212.
be said that the "question under inquiry" was Communist infiltration into labor unions. Pp. 354 U. S. 212-214.
(x) Unless the subject matter of the inquiry has been made to appear with undisputable clarity, it is the duty of the investigative body, upon objection of the witness on grounds of pertinency, to state for the record the subject under inquiry at that time and the manner in which the propounded questions are pertinent thereto. Pp. 354 U. S. 214-215.
(y) The Chairman's response, when petitioner objected to the questions on grounds of pertinency, was inadequate to convey sufficient information as to the pertinency of the questions to the "question under inquiry." Pp. 354 U. S. 214-215.
Workers. [Footnote 1] Spencer also mentioned that petitioner had attended meetings at which only card-carrying Communists were admitted. A month before petitioner testified, one Walter Rumsey stated that he had been recruited into the Party by petitioner. [Footnote 2] Rumsey added that he had paid Party dues to, and later collected dues from, petitioner, who had assumed the name, Sam Brown. Rumsey told the Committee that he left the Party in 1944.
"I am not now nor have I ever been a card-carrying member of the Communist Party. Rumsey was wrong when he said I had recruited him into the party, that I had received his dues, that I paid dues to him, and that I had used the alias Sam Brown."
"Spencer was wrong when he termed any meetings which I attended as closed Communist Party meetings."
"I would like to make it clear that, for a period of time from approximately 1942 to 1947, I cooperated with the Communist Party and participated in Communist activities to such a degree that some persons may honestly believe that I was a member of the party."
causes. I attended caucuses at an FE convention at which Communist Party officials were present."
"Since I freely cooperated with the Communist Party, I have no motive for making the distinction between cooperation and membership except the simple fact that it is the truth. I never carried a Communist Party card. I never accepted discipline, and, indeed, on several occasions, I opposed their position."
"In a special convention held in the summer of 1947, I led the fight for compliance with the Taft-Hartley Act by the FE-CIO International Union. This fight became so bitter that it ended any possibility of future cooperation. [Footnote 3]"
"A more complete and candid statement of his past political associations and activities (treating the Communist Party for present purposes as a mere political party) can hardly be imagined. Petitioner certainly was not attempting to conceal or withhold from the Committee his own past political associations, predilections, and preferences. Furthermore, petitioner told the Committee that he was entirely willing to identify for the Committee, and answer any questions it might have concerning, 'those persons whom I knew to be members of the Communist Party,' provided that, 'to [his] best knowledge and belief,' they still were members of the Party. . . . [Footnote 4]"
"I am not going to plead the fifth amendment, but I refuse to answer certain questions that I believe are outside the proper scope of your committee's activities. I will answer any questions which this committee puts to me about myself. I will also answer questions about those persons whom I knew to be members of the Communist Party and whom I believe still are. I will not, however, answer any questions with respect to others with whom I associated in the past. I do not believe that any law in this country requires me to testify about persons who may in the past have been Communist Party members or otherwise engaged in Communist Party activity but who, to my best knowledge and belief, have long since removed themselves from the Communist movement."
"I do not believe that such questions are relevant to the work of this committee, nor do I believe that this committee has the right to undertake the public exposure of persons because of their past activities. I may be wrong, and the committee may have this power, but until and unless a court of law so holds and directs me to answer, I most firmly refuse to discuss the political activities of my past associates. [Footnote 5] "
The Chairman of the Committee submitted a report of petitioner's refusal to answer questions to the House of Representatives. H.R.Rep. No. 1579, 3d Cong., 2d Sess. The House directed the Speaker to certify the Committee's report to the United States Attorney for initiation of criminal prosecution. H.Res. 534, 83d Cong., 2d Sess. [Footnote 6] A seven-count indictment was returned. [Footnote 7] Petitioner waived his right to jury trial, and was found guilty on all counts by the court. The sentence, a fine of $100 and one year in prison, was suspended, and petitioner was placed on probation.
because of the very important questions of constitutional law presented. 352 U.S. 822.
We start with several basic premises on which there is general agreement. The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws, as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste. But, broad as is this power of inquiry, it is not unlimited. There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress. This was freely conceded by the Solicitor General in his argument of this case. [Footnote 8] Nor is the Congress a law enforcement or trial agency. These are functions of the executive and judicial departments of government. No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress. Investigations conducted solely for the personal aggrandizement of the investigators or to "punish" those investigated are indefensible.
fully with respect to matters within the province of proper investigation. This, of course, assumes that the constitutional rights of witnesses will be respected by the Congress as they are in a court of justice. The Bill of Rights is applicable to investigations as to all forms of governmental action. Witnesses cannot be compelled to give evidence against themselves. They cannot be subjected to unreasonable search and seizure. Nor can the First Amendment freedoms of speech, press, religion, or political belief and association be abridged.
The rudiments of the power to punish for "contempt of Congress" come to us from the pages of English history. The origin of privileges and contempts extends back into the period of the emergence of Parliament. The establishment of a legislative body which could challenge the absolute power of the monarch is a long and bitter story. In that struggle, Parliament made broad and varied use of the contempt power. Almost from the beginning, both the House of Commons and the House of Lords claimed absolute and plenary authority over their privileges. This was an independent body of law, described by Coke as lex parliamenti. [Footnote 9] Only Parliament could declare what those privileges were or what new privileges were occasioned, and only Parliament could judge what conduct constituted a breach of privilege.
"He had won a victory for freedom of the press. He had directed popular attention to the royally controlled House of Commons, and pointed out its unrepresentative character, and had shown how easily a claim of privilege might be used to sanction the arbitrary proceedings of ministers and Parliament, even when a fundamental right of the subject was concerned. It was one of life's little ironies that work of such magnitude had been reserved for one of the worst libertines and demagogues of all time. [Footnote 15]"
of Inquiry. [Footnote 17] These commissions are comprised of experts in the problem to be studied. They are removed from the turbulent forces of politics and partisan considerations. Seldom, if ever, have these commissions been given the authority to compel the testimony of witnesses or the production of documents. [Footnote 18] Their success in fulfilling their factfinding missions without resort to coercive tactics is a tribute to the fairness of the processes to the witnesses and their close adherence to the subject matter committed to them.
or privileges of Congressmen. [Footnote 24] In Kilbourn v. Thompson, 103 U. S. 168, decided in 1881, an investigation had been authorized by the House of Representatives to learn the circumstances surrounding the bankruptcy of Jay Cooke & Company, in which the United States had deposited funds. The committee became particularly interested in a private real estate pool that was a part of the financial structure. The Court found that the subject matter of the inquiry was "in its nature clearly judicial, and therefore one in respect to which no valid legislation could be enacted." The House had thereby exceeded the limits of its own authority.
if the legislature's power to probe corruption in the executive branch were unduly hampered.
In the decade following World War II, there appeared a new kind of congressional inquiry unknown in prior periods of American history. Principally this was the result of the various investigations into the threat of subversion of the United States Government, but other subjects of congressional interest also contributed to the changed scene. This new phase of legislative inquiry involved a broad-scale intrusion into the lives and affairs of private citizens. It brought before the courts novel questions of the appropriate limits of congressional inquiry. Prior cases, like Kilbourn, McGrain and Sinclair had defined the scope of investigative power in terms of the inherent limitations of the sources of that power. In the more recent cases, the emphasis shifted to problems of accommodating the interest of the Government with the rights and privileges of individuals. The central theme was the application of the Bill of Rights as a restraint upon the assertion of governmental power in this form.
the most orthodox and uncontroversial views and associations in order to avoid a similar fate at some future time. That this impact is partly the result of nongovernmental activity by private persons cannot relieve the investigators of their responsibility for initiating the reaction.
The Court recognized the restraints of the Bill of Rights upon congressional investigations in United States v. Rumely, 345 U. S. 41. The magnitude and complexity of the problem of applying the First Amendment to that case led the Court to construe narrowly the resolution describing the committee's authority. It was concluded that, when First Amendment rights are threatened, the delegation of power to the committee must be clearly revealed in its charter.
right to privacy nor abridge his liberty of speech, press, religion or assembly.
are endowed with the full power of the Congress to compel testimony. In this case, only two men exercised that authority in demanding information over petitioner's protest.
An essential premise in this situation is that the House or Senate shall have instructed the committee members on what they are to do with the power delegated to them. It is the responsibility of the Congress, in the first instance, to insure that compulsory process is used only in furtherance of a legislative purpose. That requires that the instructions to an investigating committee spell out that group's jurisdiction and purpose with sufficient particularity. Those instructions are embodied in the authorizing resolution. That document is the committee's charter. Broadly drafted and loosely worded, however, such resolutions can leave tremendous latitude to the discretion of the investigators. The more vague the committee's charter is, the greater becomes the possibility that the committee's specific actions are not in conformity with the will of the parent House of Congress.
within the United States of subversive and un-American propaganda that is instigated from foreign countries or of a domestic origin and attacks the principle of the form of government as guaranteed by our Constitution, and (3) all other questions in relation thereto that would aid Congress in any necessary remedial legislation. [Footnote 37]"
It would be difficult to imagine a less explicit authorizing resolution. Who can define the meaning of "un-American"? What is that single, solitary "principle of the form of government as guaranteed by our Constitution"? [Footnote 38] There is no need to dwell upon the language, however. At one time, perhaps, the resolution might have been read narrowly to confine the Committee to the subject of propaganda. [Footnote 39] The events that have transpired in the fifteen years before the interrogation of petitioner make such a construction impossible at this date.
Unquestionably, the Committee conceived of its task in the grand view of its name. Un-American activities were its target, no matter how or where manifested. Notwithstanding the broad purview of the Committee's experience, the House of Representatives repeatedly approved its continuation. Five times it extended the life of the special committee. [Footnote 41] Then it made the group a standing committee of the House. [Footnote 42] A year later, the Committee's charter was embodied in the Legislative Reorganization Act. [Footnote 43] On five occasions, at the beginning of sessions of Congress, it has made the authorizing resolution part of the rules of the House. [Footnote 44] On innumerable occasions, it has passed appropriation bills to allow the Committee to continue its efforts.
of Representatives is slight or nonexistent. No one could reasonably deduce from the charter the kind of investigation that the Committee was directed to make. As a result, we are asked to engage in a process of retroactive rationalization. Looking backward from the events that transpired, we are asked to uphold the Committee's actions unless it appears that they were clearly not authorized by the charter. As a corollary to this inverse approach, the Government urges that we must view the matter hospitably to the power of the Congress -- that, if there is any legislative purpose which might have been furthered by the kind of disclosure sought, the witness must be punished for withholding it. No doubt every reasonable indulgence of legality must be accorded to the actions of a coordinate branch of our Government. But such deference cannot yield to an unnecessary and unreasonable dissipation of precious constitutional freedoms.
The Government contends that the public interest at the core of the investigations of the Un-American Activities Committee is the need by the Congress to be informed of efforts to overthrow the Government by force and violence, so that adequate legislative safeguards can be erected. From this core, however, the Committee can radiate outward infinitely to any topic thought to be related in some way to armed insurrection. The outer reaches of this domain are known only by the content of "un-American activities." Remoteness of subject can be aggravated by a probe for a depth of detail even farther removed from any basis of legislative action. A third dimension is added when the investigators turn their attention to the past to collect minutiae on remote topics, on the hypothesis that the past may reflect upon the present.
to make the kind of judgment made by the Court in United States v. Rumely, supra. The Committee is allowed, in essence, to define its own authority,to choose the direction and focus of its activities. In deciding what to do with the power that has been conferred upon them, members of the Committee may act pursuant to motives that seem to them to be the highest. Their decisions, nevertheless, can lead to ruthless exposure of private lives in order to gather data that is neither desired by the Congress nor useful to it. Yet it is impossible in this circumstance, with constitutional freedoms in jeopardy, to declare that the Committee has ranged beyond the area committed to it by its parent assembly, because the boundaries are so nebulous.
More important and more fundamental than that, however, it insulates the House that has authorized the investigation from the witnesses who are subjected to the sanctions of compulsory process. There is a wide gulf between the responsibility for the use of investigative power and the actual exercise of that power. This is an especially vital consideration in assuring respect for constitutional liberties. Protected freedoms should not be placed in danger in the absence of a clear determination by the House or the Senate that a particular inquiry is justified by a specific legislative need.
citizens to carry on their affairs free from unnecessary governmental interference. It is impossible in such a situation to ascertain whether any legislative purpose justifies the disclosures sought, and, if so, the importance of that information to the Congress in furtherance of its legislative function. The reason no court can make this critical judgment is that the House of Representatives itself has never made it. Only the legislative assembly initiating an investigation can assay the relative necessity of specific disclosures.
Absence of the qualitative consideration of petitioner's questioning by the House of Representatives aggravates a serious problem, revealed in this case, in the relationship of congressional investigating committees and the witnesses who appear before them. Plainly, these committees are restricted to the missions delegated to them, i.e., to acquire certain data to be used by the House or the Senate in coping with a problem that falls within its legislative sphere. No witness can be compelled to make disclosures on matters outside that area. This is a jurisdictional concept of pertinency drawn from the nature of a congressional committee's source of authority. It is not wholly different from nor unrelated to the element of pertinency embodied in the criminal statute under which petitioner was prosecuted. When the definition of jurisdictional pertinency is as uncertain and wavering as in the case of the Un-American Activities Committee, it becomes extremely difficult for the Committee to limit its inquiries to statutory pertinency.
not extend beyond adjournment. The Congress has instead invoked the aid of the federal judicial system in protecting itself against contumacious conduct. It has become customary to refer these matters to the United States Attorneys for prosecution under criminal law.
"Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months. [Footnote 45] "
The problem attains proportion when viewed from the standpoint of the witness who appears before a congressional committee. He must decide at the time the questions are propounded whether or not to answer. As the Court said in Sinclair v. United States, 279 U. S. 263, the witness acts at his peril. He is ". . . bound rightly to construe the statute." Id. at 279 U. S. 299. An erroneous determination on his part, even if made in the utmost good faith, does not exculpate him if the court should later rule that the questions were pertinent to the question under inquiry.
which the interrogation is deemed pertinent. That knowledge must be available with the same degree of explicitness and clarity that the Due Process Clause requires in the expression of any element of a criminal offense. The "vice of vagueness" [Footnote 48] must be avoided here, as in all other crimes. There are several sources that can outline the "question under inquiry" in such a way that the rules against vagueness are satisfied. The authorizing resolution, the remarks of the chairman or members of the committee, or even the nature of the proceedings themselves, might sometimes make the topic clear. This case demonstrates, however, that these sources often leave the matter in grave doubt.
The first possibility is that the authorizing resolution itself will so clearly declare the "question under inquiry" that a witness can understand the pertinency of questions asked him. The Government does not contend that the authorizing resolution of the Un-American Activities Committee could serve such a purpose. Its confusing breadth is amply illustrated by the innumerable and diverse questions into which the Committee has inquired under this charter since 1938. If the "question under inquiry" were stated with such sweeping and uncertain scope, we doubt that it would withstand an attack on the ground of vagueness.
in the Internal Security Act of 1950. The Subcommittee, it is contended, might have been endeavoring to determine the extent of such a problem.
almost a quarter of the persons on the list are not labor people, the inference becomes strong that the subject before the Subcommittee was not defined in terms of Communism in labor.
The final source of evidence as to the "question under inquiry" is the Chairman's response when petitioner objected to the questions on the grounds of lack of pertinency. The Chairman then announced that the Subcommittee was investigating "subversion and subversive propaganda." [Footnote 54] This is a subject at least as broad and indefinite as the authorizing resolution of the Committee, if not more so.
under inquiry at that time and the manner in which the propounded questions are pertinent thereto. [Footnote 55] To be meaningful, the explanation must describe what the topic under inquiry is and the connective reasoning whereby the precise questions asked relate to it.
The statement of the Committee Chairman in this case, in response to petitioner's protest, was woefully inadequate to convey sufficient information as to the pertinency of the questions to the subject under inquiry. Petitioner was thus not accorded a fair opportunity to determine whether he was within his rights in refusing to answer, and his conviction is necessarily invalid under the Due Process Clause of the Fifth Amendment.
We are mindful of the complexities of modern government and the ample scope that must be left to the Congress as the sole constitutional depository of legislative power. Equally mindful are we of the indispensable function, in the exercise of that power, of congressional investigations. The conclusions we have reached in this case will not prevent the Congress, through its committees, from obtaining any information it needs for the proper fulfillment of its role in our scheme of government. The legislature is free to determine the kinds of data that should be collected. It is only those investigations that are conducted by use of compulsory process that give rise to a need to protect the rights of individuals against illegal encroachment. That protection can be readily achieved through procedures which prevent the separation of power from responsibility and which provide the constitutional requisites of fairness for witnesses. A measure of added care on the part of the House and the Senate in authorizing the use of compulsory process and by their committees in exercising that power would suffice.
That is a small price to pay if it serves to uphold the principles of limited, constitutional government without constricting the power of the Congress to inform itself.
The judgment of the Court of Appeals is reversed, and the case is remanded to the District Court with instructions to dismiss the indictment.
MR. JUSTICE BURTON and MR. JUSTICE WHITTAKER took no part in the consideration or decision of this case.
R. 153-163; Hearings before the House of Representatives Committee on Un-American Activities on Communist Activities in the Chicago Area -- Part 1, 82d Cong., 2d Sess. 3737-3752.
R. 135-149; Hearings before the House of Representatives Committee on Un-American Activities on Investigation of Communist Activities in the Chicago Area -- Part 2, 83d Cong., 2d Sess. 4243-4260.
R. 75; Hearings, supra, note 2 Part 3, at 4268.
Brief for Respondent, pp. 59-60.
R. 886; Hearings, supra, note 2 Part 3, at 4275.
There were nine citations of contempt voted at the same time. Petitioner's case was the second to be acted upon. There was no debate other than a statement by Representative Javits on a proposal to consolidate the legislative bodies investigating subversion. 100 Cong.Rec. 6382-6386. The resolution to prosecute petitioner passed by a voice vote.
There was lengthier discussion and a recorded vote on the first case considered by the House. Id. at 6375-6382. In none of the cases was there any debate on the merits of the witnesses' conduct. Id. at 6375-6401.
The counts of the indictment were patterned from the sequence of the questioning by the Committee. Petitioner was asked separately about six persons, and these are the basis of the first six counts. The last count comprises the omnibus question that gave a list of twenty-five names for petitioner to identify. With two exceptions, the questions asked for knowledge of past membership in the Communist Party. The context of the interrogation indicates that the Committee's concern was with such past conduct. Petitioner agreed to and did disclose his knowledge of those he believed to be present members.
"Now, we don't claim on behalf of the Government that there is any right to expose for the purposes of exposure. And I don't know that Congress has ever claimed any such right. But we do say, in the same breath, that there is a right to inform the public at the same time you inform the Congress."
H.Comm. J. (1688-1693) 227; Jay v. Topham, 12 How.St.Tr. 822.
Proceedings against Richard Thompson, 8 How.St.Tr. 2; Wittke, The History of English Parliamentary Privilege, 50.
"Floyd, for uttering a few contemptible expressions, was degraded from his gentility, and to be held an infamous person; his testimony not to be received; to ride from the Fleet to Cheapside on horseback, without a saddle, with his face to the horse's tail, and the tail in his hand, and then to stand two hours in the pillory, and to be branded in the forehead with the letter K; to ride four days afterwards in the same manner to Westminster, and then to stand two hours more in the pillory, with words on a paper in his hat showing his offence; to be whipped at the cart's tail from the Fleet to Westminster Hall; to pay a fine of 5000l., and to be a prisoner in Newgate during his life."
1 De Lolme, The Rise and Progress of the English Constitution, 348.
H.L.J. (1620-1628) 110-111, 113, 116, 124, 125, 127, 132, 133-134, 183; Wittke, 76-77. See also Kelke, Constitutional Law and Cases, 155-156.
Wittke, 122-123. With all his knavery, Wilkes was long a hero with certain persecuted groups in England. Here, streets and other public places have been named for him and his writings.
H.Comm.J. (1835) 533, 564-565, 571, 575.
Finer, Congressional Investigations: The British System, 18 U. of Chi.L.Rev. 521, 554-561; Smelser, Legislative Investigations: Safeguards for Witnesses: The Problem in Historical Perspective, 29 Notre Dame Law. 163, 167; Clokie & Robinson, Royal Commissions of Inquiry.
Finer, 559; Smelser, 167; Clokie & Robinson, 186-187.
See Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv.L.Rev. 153, 168-191; Potts, Power of Legislative Bodies to Punish for Contempt, 74 U. of Pa.L.Rev. 691, 719-725.
The first case to reach this Court was Anderson v. Dunn, 6 Wheat. 204, which upheld the power of the House of Representatives to reprimand a person for attempting to bribe a member of the House.
On December 31, 1827, the House Committee on Manufacturers was given the task of inquiring into the effect that the proposed upward revision in the tariff schedules would have upon domestic manufacturers. The power of the House to authorize a factfinding inquiry in aid of legislation was seriously challenged. After full debate, the investigation was authorized by a vote of 102 to 88. 4 Cong. Deb. 889.
". . . the late invasion and seizure of the armory and arsenal of the United States at Harper's Ferry, in Virginia, by a band of armed men. . . . And that said committee [shall] report whether any and what legislation may, in their opinion, be necessary, on the part of the United States, for the future preservation of the peace of the country, or for the safety of the public property, and that said committee [shall] have power to send for persons and papers."
Cong.Globe, 36th Cong., 1st Sess. 141 (1859).
60 Stat. 828-829. All standing committees in the Senate were invested with the power of compulsory process. 60 Stat. 830-831. During the 83d Congress, two other standing committees in the House of Representatives, the Appropriations and Government Operations Committees, possessed that power. 99 Cong.Rec. 16-19.
The first court that was called upon to review the constitutional validity of a legislative inquiry was the New York Court of Common Pleas. The case arose out of the inquiry by the Common Council of New York into the conduct of the Police Department in 1855. Judge Charles Patrick Daly upheld the investigative power as implicit in the functions of a legislature, but ruled that the examination of witnesses must be confined to the subject under investigation. Applying this standard, he ruled that questions directed to the national origin of policemen were improper under the investigators' authorizing resolution. Briggs v. Mackeller, 2 Abbott's Practice Reports 30 (N.Y. Common Pleas 1855).
In re Chapman, 166 U. S. 661 (upheld conviction under R.S. § 102, forerunner of 2 U.S.C. § 192, for refusal to answer questions in inquiry into charges of corruption among certain Senators with respect to pending bill on sugar tariff); cf. Marshall v. Gordon, 243 U. S. 521.
Jurney v. MacCracken, 294 U. S. 125 (upheld power of Senate to punish as a contempt the action of a witness in allowing the destruction and removal of papers subject to the subpoena of a Senate committee; held that enactment of 2 U.S.C. § 192 did not impair contempt power of Houses of Congress).
The first reported case in which the claim of the privilege against self-incrimination was allowed in a congressional inquiry proceeding was United States v. Yukio Abe, 95 F.Supp. 991. Prior thereto, several state courts had held that legislative investigations were subject to the witness' privilege not to accuse himself under state constitutions. Emery's Case, 107 Mass. 172, decided in 1871, is the earliest. See also Ex parte Johnson, 187 S.C. 1, 196 S.E. 164.
E.g., Excerpts from Hearings before the House of Representatives Committee on Un-American Activities -- Regarding Investigation of Communist Activities in Connection with the Atom Bomb, 80th Cong., 2d Sess. 5; N.Y. Herald Tribune, Sept. 6, 1948, p. 3, col. 6-7.
Appropriateness of the privilege has been upheld without question in many cases arising out of congressional inquiry. See, e.g., Starkovich v. United States, 231 F.2d 411; Aiuppa v. United States, 201 F.2d 287; United States v. Costello, 198 F.2d 200; Marcello v. United States, 196 F.2d 437; United States v. Di Carlo, 102 F.Supp. 597; United States v. Licavoli, 102 F.Supp. 607; United States v. Cohen, 101 F.Supp. 906; United States v. Jaffe, 98 F.Supp. 191; United States v. Fitzpatrick, 96 F.Supp. 491; United States v. Raley, 96 F.Supp. 495; United States v. Yukio Abe, 95 F.Supp. 991.
The first reported decision, made in 1947, grew out of the inquiry of the Un-American Activities Committee into certain organizations suspected of subversive actions. Subpoenas duces tecum had been issued calling for the correspondence and other records of these organizations. Refusals to comply were followed by prosecutions under 2 U.S.C. § 192. The District Court denied motions to dismiss the indictments in United States v. Bryan, 72 F.Supp. 58. The decision with respect to the First Amendment was affirmed in Barsky v. United States, 167 F.2d 241.
See United States v. Rumely, 345 U. S. 41, 345 U. S. 43-44; Lawson v. United States, 176 F.2d 49, 51-52; Barsky v. United States, 167 F.2d 241, 244-250; United States v. Josephson, 165 F.2d 82, 90-92.
"While Congress does not have the power to deny to citizens the right to believe in, teach, or advocate, communism, fascism, and naziism, it does have the right to focus the spotlight of publicity upon their activities. . . ."
H.R.Rep. No. 2, 76th Cong., 1st Sess. 13.
A year later, the Committee reported that ". . . investigation to inform the American people . . . is the real purpose of the House Committee." H.R.Rep. No. 1476, 76th Cong., 3d Sess. 1-2.
A pamphlet issued by the Committee in 1951 stated that: "Exposure in a systematic way began with the formation of the House Committee on Un-American Activities, May 26, 1938." The Committee believed itself commanded ". . . to expose people and organizations attempting to destroy this country. That is still its job, and to that job it sticks." 100 Things You Should Know About Communism, H.R.Doc. No. 136, 82d Cong., 1st Sess.19, 67.
In its annual reports, the Committee has devoted a large part of its information to a public listing of names along with a summary of their activities.
". . . [T]he committee feels that the Congress and the American people will have a much clearer and fuller picture of the success and scope of communism in the United States by having set forth the names and, where possible, the positions occupied by individuals who have been identified as Communists, or former Communists, during the past year."
H.R.Rep. No. 2516, 82d Cong., 2d Sess. 6-7.
We are not concerned with the power of the Congress to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government. That was the only kind of activity described by Woodrow Wilson in Congressional Government when he wrote: "The informing function of Congress should be preferred even to its legislative function." Id. at 303. From the earliest times in its history, the Congress has assiduously performed an "informing function" of this nature. See Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv.L.Rev. 153, 168-194.
Compare the treatment of this point in Barenblatt v. United States, 240 F.2d 875, 880-881; Morford v. United States, 176 F.2d 54, 58; Eisler v. United States, 170 F.2d 273, 278-279; United States v. Josephson, 165 F.2d 82, 89, and United States v. Kamin, 136 F.Supp. 791, 800-801.
H.Res. 282, 75th Cong., 3d Sess., 83 Cong.Rec. 7568, 7586.
H.Res. 5, 79th Cong., 1st Sess., 91 Cong.Rec. 10, 15.
H.Res. 5, 83d Cong., 1st Sess., 99 Cong.Rec. 18, 24.
For contrasting views, see Morford v. United States, 176 F.2d 54, 57-58, and Barsky v. United States, 167 F.2d 241, 247-248.
The language of the resolution was obviously taken from the Dickstein resolution, which established the McCormack Committee in 1934 to study Nazi and other propaganda sent into the United States from foreign countries. H.Res.198, 73d Cong., 2d Sess., 78 Cong.Rec. 4934, 4949.
"Suffice it to say here that its range of activity has covered all varieties of organizations, including the American Civil Liberties Union, the C.I.O., the National Catholic Welfare Conference, the Farmer-Labor party, the Federal Theatre Project, consumers' organizations, various publications from the magazine 'Time' to the 'Daily Worker,' and varying forms and types of industry, of which the recent investigation of the movie industry is fresh in the public mind. While it has avoided specific definition of what it is seeking, it has repeatedly inquired as to membership in the Communist party and in other organizations which it regards as communist controlled or affected."
United States v. Josephson, 165 F.2d 82, 95 (dissent). See also the dissenting opinion of Judge Henry W. Edgerton, now Chief Judge of the Court of Appeals for the District of Columbia Circuit, in Barsky v. United States, 83 U.S.App.D.C. 127, at 143, 167 F.2d 241, at 257.
H.Res. 26, 76th Cong., 1st Sess., 84 Cong.Rec. 1098, 1127-1128; H.Res. 321, 76th Cong., 3d Sess., 86 Cong.Rec. 572, 604-605; H.Res. 90, 77th Cong., 1st Sess., 87 Cong.Rec. 886, 899; H.Res. 420, 77th Cong., 2d Sess., 88 Cong.Rec. 2282, 2297; H.Res. 65, 78th Cong., 1st Sess., 89 Cong.Rec. 795, 809-810.
H.Res. 5, 80th Cong., 1st Sess., 93 Cong.Rec. 38; H.Res. 5, 81st Cong., 1st Sess., 95 Cong.Rec. 10; H.Res. 7, 82d Cong., 1st Sess., 97 Cong.Rec. 17, 19; H.Res. 5, 83d Cong., 1st Sess., 99 Cong.Rec. 15; H.Res. 5, 84th Cong., 1st Sess., 101 Cong.Rec. 11.
This statute was passed in 1857 as a direct result of an incident which caused the Congress to feel that it needed more severe sanctions to compel disclosures than were available in the historical procedure of summoning the recalcitrant witness before the bar of either House of Congress and ordering him held in custody until he agreed to testify. Such imprisonment is valid only so long as the House remains in session. See Anderson v. Dunn, 6 Wheat. 204, 19 U. S. 231; Eberling, Congressional Investigations, 180-184.
The immediate cause for adoption of the statute was an accusation by one J. W. Simonton, a newspaperman, that certain unnamed Congressmen were soliciting bribes on a matter pending before the legislature. Simonton was cited before the House of Representatives and refused to divulge the names of those implicated. In the course of that episode, the forerunner of 2 U.S.C. § 192 was passed in order ". . . to inflict a greater punishment than the committee believe the House possesses the power to inflict." Cong.Globe, 34th Cong., 3d Sess. 405. See also id. at 403-413, 426-433, 434-445. Thereafter, having been in custody more than two weeks, Simonton testified to the satisfaction of the committee, and was discharged. 3 Hinds' Precedents § 1669.
United States v. Harriss, 347 U. S. 612; United States v. Cardiff, 344 U. S. 174; Winters v. New York, 333 U. S. 507; Musser v. Utah, 333 U. S. 95; Lanzetta v. New Jersey, 306 U. S. 451.
United States v. Orman, 207 F.2d 148; Bowers v. United States, 202 F.2d 447; United States v. Kamin, 135 F.Supp. 382, 136 F.Supp. 791.
United States v. Josephson, 165 F.2d 82, 88.
"The committee will be in order. I should like to make an opening statement regarding our work here in the city of Chicago. The Congress of the United States, realizing that there are individuals and elements in this country whose aim it is to subvert our constitutional form of government, has established the House Committee on Un-American Activities. In establishing this committee, the Congress has directed that we must investigate and hold hearings, either by the full committee or by a subcommittee, to ascertain the extent and success of subversive activities directed against these United States."
"On the basis of these investigations and hearings, the Committee on Un-American Activities reports its findings to the Congress and makes recommendations from these investigations and hearings for new legislation. As a result of this committee's investigations and hearings, the Internal Security Act of 1950 was enacted."
"Over the past fifteen years this committee has been in existence, both as a special and permanent committee, it has made forty-seven recommendations to the Congress to insure proper security against subversion. I am proud to be able to state that, of these forty-seven recommendations, all but eight have been acted upon in one way or another. Among these recommendations which the Congress has not acted upon are those which provide that witnesses appearing before congressional committees be granted immunity from prosecution on the information they furnish."
"The committee has also recommended that evidence secured from confidential devices be admissible in cases involving the national security. The executive branch of Government has now also asked the Congress for such legislation. A study is now being made of various bills dealing with this matter."
"The Congress has also referred to the House Committee on Un-American Activities a bill which would amend the National Security Act of 1950. This bill, if enacted into law, would provide that the Subversive Activities Control Board should, after suitable hearings and procedures, be empowered to find if certain labor organizations are, in fact, Communist controlled action groups. Following this action, such labor groups would not have available the use of the National Labor Relations Board as they now have under the provisions of the Labor-Management Relations Act of 1947."
"During the first session of this 83rd Congress, the House Un-American Activities Committee has held hearings in Los Angeles and San Francisco, California; Albany and New York City, New York; Philadelphia, Pennsylvania, and Columbus, Ohio. We are here in Chicago, Illinois, realizing that this is the center of the great midwestern area of the United States."
"It cannot be said that subversive infiltration has had a greater nor a lesser success in infiltrating this important area. The hearings today are the culmination of an investigation that has been conducted by the committee's competent staff and is a part of the committee's intention for holding hearings in various parts of the country."
"The committee has found that, by conducting its investigations and holding hearings in various parts of the country, it has been able to secure a fuller and more comprehensive picture of subversive efforts throughout our nation. Every witness who has been subpoenaed to appear before the committee here in Chicago, as in all hearings conducted by this committee, are [sic] known to possess information which will assist the committee in performing its directed function to the Congress of the United States."
"BE IT RESOLVED, that the Chairman shall have authority from time to time to appoint subcommittees composed of one or more members of the Committee on Un-American Activities for the purpose of performing any and all acts which the Committee as a whole is authorized to do."
Petitioner appeared before a subcommittee composed at the outset of four members. After a recess in the course of his testimony, only two committeemen were present. It was during this latter phase of his testimony that petitioner refused to answer the questions involved in this case.
The bill pending at the time of the Chairman's remarks, March 15, 1954, and when petitioner testified a month later was H.R. 7487, 100 Cong.Rec. 763. No action was ever taken on this proposal. Introduced by Representative Velde, it would have withdrawn the rights, privileges and benefits under the National Labor Relations Act of any labor organization which was substantially directed, dominated or controlled by persons who were or ever had been members of a "Communist action organization," as that phrase is used in the Internal Security Act.
On July 6, 1954, after extensive hearings, the Senate Judiciary Committee reported favorably on S. 3706, a bill drafted by that committee to amend the Internal Security Act. Two days later, Representative Velde introduced H.R. 9838, which was identical to S. 3706. These bills eventually became law. 68 Stat. 775. The Act created the concept of a "Communist infiltrated organization," and part of its provisions declared that a labor union that came within that definition should be barred from the rights, privileges and benefits of the National Labor Relations Act. The same sanctions were applied to a labor group that was a "Communist action" or "Communist front organization" under the original Internal Security Act.
The first four witnesses testified principally about the Communist Party activities of an employee of the National Cancer Institute of the United States Public Health Service. A Chicago attorney related to the Subcommittee his experiences with Communist youth organizations during his college days. The sixth witness told of her work as a district organizer for the Communist Party in Montana, Wyoming, Idaho and the Dakotas during the 1930's.
"This committee is set up by the House of Representatives to investigate subversion and subversive propaganda and to report to the House of Representatives for the purpose of remedial legislation."
"The House of Representatives has, by a very clear majority, a very large majority, directed us to engage in that type of work, and so we do, as a committee of the House of Representatives, have the authority, the jurisdiction, to ask you concerning your activities in the Communist Party, concerning your knowledge of any other persons who are members of the Communist Party or who have been members of the Communist Party, and so, Mr. Watkins, you are directed to answer the question propounded to you by counsel."
Cf. United States v. Kamin, 136 F.Supp. 791, 800.
I deem it important to state what I understand to be the Court's holding. Agreeing with its holding, I join its opinion.
"contumacy in a witness called to testify in a matter properly under consideration by either House, and deliberately refusing to answer questions pertinent thereto, shall be a misdemeanor against the United States."
In re Chapman, 166 U. S. 661, 166 U. S. 672. This legislation is now 2 U.S.C. 192. By thus making the federal judiciary the affirmative agency for enforcing the authority that underlies the congressional power to punish for contempt, Congress necessarily brings into play the specific provisions of the Constitution relating to the prosecution of offenses and those implied restrictions under which courts function.
To turn to the immediate problem before us, the scope of inquiry that a committee is authorized to pursue must be defined with sufficiently unambiguous clarity to safeguard a witness from the hazards of vagueness in the enforcement of the criminal process against which the Due Process Clause protects. The questions must be put with relevance and definiteness sufficient to enable the witness to know whether his refusal to answer may lead to conviction for criminal contempt and to enable both the trial and the appellate courts readily to determine whether the particular circumstances justify a finding of guilt.
While implied authority for the questioning by the Committee, sweeping as was its inquiry, may be squeezed out of the repeated acquiescence by Congress in the Committee's inquiries, the basis for determining petitioner's guilt is not thereby laid. Prosecution for contempt of Congress presupposes an adequate opportunity for the defendant to have awareness of the pertinency of the information that he has denied to Congress. And the basis of such awareness must be contemporaneous with the witness' refusal to answer and not at the trial for it. Accordingly, the actual scope of the inquiry that the Committee was authorized to conduct and the relevance of the questions to that inquiry must be shown to have been luminous at the time when asked and not left, at best, in cloudiness. The circumstances of this case were wanting in these essentials.
inquiry are both unnecessary and unworkable. It is my purpose to first discuss this phase of the opinion, and then record my views on the merits of Watkins' case.
It may be that, at times the House Committee on Un-American Activities has, as the Court says, "conceived of its task in the grand view of its name." And, perhaps, as the Court indicates, the rules of conduct placed upon the Committee by the House admit of individual abuse and unfairness. But that is none of our affair. So long as the object of a legislative inquiry is legitimate and the questions propounded are pertinent thereto, it is not for the courts to interfere with the committee system of inquiry. To hold otherwise would be an infringement on the power given the Congress to inform itself, and thus a trespass upon the fundamental American principle of separation of powers. The majority has substituted the judiciary as the grand inquisitor and supervisor of congressional investigations. It has never been so.
constitutional limitations on the investigatory powers are admitted. [Footnote 2/1] The use of legislative committees to secure information follows the example of the people from whom our legislative system is derived. The British method has variations from that of the United States, but fundamentally serves the same purpose -- the enlightenment of Parliament for the better performance of its duties. There are standing committees to carry on the routine work, royal commissions to grapple with important social or economic problems, and special tribunals of inquiry for some alleged offense in government. [Footnote 2/2] Our Congress has, since its beginning, used the committee system to inform itself. It has been estimated that over 600 investigations have been conducted since the First Congress. They are "a necessary and appropriate attribute of the power to legislate. . . ." McGrain v. Daugherty, 273 U. S. 135, 273 U. S. 175 (1927).
allowed, in essence, to define its own authority, [and] to choose the direction and focus of its activities." This, of course, is largely true of all committees within their respective spheres. And, while it is necessary that the "charter," as the opinion calls the enabling resolution, "spell out [its] jurisdiction and purpose," that must necessarily be in more or less general terms. An examination of the enabling resolutions of other committees reveals the extent to which this is true.
literature . . . containing immoral [or] obscene . . . matter, or placing improper emphasis on crime . . . are being made available to the people of the United States . . . ; [Footnote 2/9]"
"of the extent to which criminal or other improper practices . . . are, or have been, engaged in in the field of labor-management relations . . . to the detriment of the interests of the public. . . . [Footnote 2/10]"
(Emphasis added in each example.) Surely these authorizations permit the committees even more "tremendous latitude" than the "charter" of the Un-American Activities Committee. Yet no one has suggested that the powers granted were too broad. To restrain and limit the breadth of investigative power of this Committee necessitates the similar handling of all other committees. The resulting restraint imposed on the committee system appears to cripple the system beyond workability.
"added care on the part of the House and the Senate in authorizing the use of compulsory process and by their committees in exercising that power would suffice."
It does not say how this "added care" could be applied in practice; however, there are many implications, since the opinion warns that "procedures which prevent the separation of power from responsibility" would be necessary along with "constitutional requisites of fairness for witnesses." The "power" and "responsibility" for the investigations are, of course, in the House where the proceeding is initiated. But the investigating job itself can only be done through the use of committees. They must have the "power" to force compliance with their requirements. If the rule requires that this power be retained in the full House, then investigations will be so cumbrous that their conduct will be a practical impossibility. As to "fairness for witnesses," there is nothing in the record showing any abuse of Watkins. If anything, the Committee was abused by his recalcitrance.
"the Congress has practically abandoned its original practice of utilizing the coercive sanction of contempt proceedings at the bar of the House."
"knowledge of the subject to which the interrogation is deemed pertinent . . . must be available [to the witness] with the same degree of explicitness and clarity that the Due Process Clause requires in the expression of any element of a criminal offense."
of the Congress. See Frankfurter, Hands Off The Investigations, 38 New Republic, May 21, 1924, p. 329, 65 Cong.Rec. 9080-9082. The Congress does not have the facts at the time of the investigation, for it is the facts that are being sought. In a criminal trial, the investigation has been completed, and all of the facts are at hand. The informing function of the Congress is, in effect, "a study by the government of circumstances which seem to call for study in the public interest." See Black, Inside a Senate Investigation, 172 Harper's Magazine, Feb.1936, pp.275, 278. In the conduct of such a proceeding, it is impossible to be as explicit and exact as in a criminal prosecution. If the Court is saying that its new rule does not apply to contempt cases tried before the bar of the House affected, it may well lead to trial of all contempt cases before the bar of the whole House in order to avoid the restrictions of the rule. But this will not promote the result desired by the majority. Summary treatment, at best, could be provided before the whole House because of the time factor, and such treatment would necessarily deprive the witness of many of the safeguards in the present procedures. On review here, the majority might then find fault with that procedure.
of the constitutional right of free speech. I subscribe to neither conclusion.
"to ascertain the extent and success of subversive activities directed against these United States [and] on the basis of these investigations and hearings . . . [report] its findings to the Congress and [make] recommendations . . . for new legislation."
"The Congress has also referred to the House Committee on Un-American Activities a bill which would amend the National Security Act of 1950"
"It cannot be said that subversive infiltration has had a greater nor a lesser success in infiltrating this important area. The hearings today are the culmination of an investigation. . . . Every witness who has been subpoenaed to appear before the committee here in Chicago . . . [is] known to possess information which will assist the Committee in performing its directed function to the Congress of the United States."
"cooperated with the Communist Party . . . participated in Communist activities . . . made contributions . . . attended caucuses at [his union's] convention at which Communist Party officials were present . . . [and] freely cooperated with the Communist Party. . . ."
"almost a quarter of the persons on the list are not labor people, the inference becomes strong that the subject before the Subcommittee was not defined in terms of Communism in labor."
I submit that the opposite is true.
clearly reveals that he was well acquainted with the purpose of the hearing. It was to investigate Communist infiltration into his union. This certainly falls within the grant of authority from the Reorganization Act, and the House has had ample opportunity to limit the investigative scope of the Committee if it feels that the Committee has exceeded its legitimate bounds.
(1949), cert. denied, 339 U.S. 934; United States v. Josephson, 165 F.2d 82, 90-92 (1947), cert. denied, 333 U.S. 838.
The pertinency of the questions is highlighted by the need for the Congress to know the extent of infiltration of communism in labor unions. This technique of infiltration was that used in bringing the downfall of countries formerly free but now still remaining behind the Iron Curtain. The Douds case illustrates that the Party is not an ordinary political party, and has not been, at least since 1945. Association with its officials is not an ordinary association. Nor does it matter that the questions related to the past. Influences of past associations often linger on, as was clearly shown in the instance of the witness Matusow and others. The techniques used in the infiltration which admittedly existed here might well be used again in the future. If the parties about whom Watkins was interrogated were Communists and collaborated with him, as a prior witness indicated, an entirely new area of investigation might have been opened up. Watkins' silence prevented the Committee from learning this information which could have been vital to its future investigation. The Committee was likewise entitled to elicit testimony showing the truth or falsity of the prior testimony of the witnesses who had involved Watkins and the union with collaboration with the Party. If the testimony was untrue, a false picture of the relationship between the union and the Party leaders would have resulted. For these reasons, there were ample indications of the pertinency of the questions.
"insure that the Congress does not unjustifiably encroach upon an individual's right to privacy, nor abridge his liberty of speech, press, religion or assembly."
In effect, the Court honors Watkins' claim of a "right to silence" which brings all inquiries, as we know, to a "dead end." I do not see how any First Amendment rights were endangered here. There is nothing in the First Amendment that provides the guarantees Watkins claims. That Amendment was designed to prevent attempts by law to curtail freedom of speech. Whitney v. California, 274 U. S. 357, 274 U. S. 375 (1927). It forbids Congress from making any law "abridging the freedom of speech, or of the press." It guarantees Watkins' right to join any organization and make any speech that does not have an intent to incite to crime. Dennis v. United States, 341 U. S. 494 (1951). But Watkins was asked whether he knew named individuals and whether they were Communists. He refused to answer on the ground that his rights were being abridged. What he was actually seeking to do was to protect his former associates, not himself, from embarrassment. He had already admitted his own involvement. He sought to vindicate the rights, if any, of his associates. It is settled that one cannot invoke the constitutional rights of another. Tileston v. Ullman, 318 U. S. 44, 318 U. S. 46 (1943).
"upon the ground that his testimony to such fact or his production of such paper may tend to disgrace him or otherwise render him infamous."
See also McGrain v. Daugherty, supra, at 273 U. S. 179-180; United States v. Josephson, 165 F.2d 82, 89 (1947), cert. denied, 333 U.S. 838. See also Report on Congressional Investigations, Assn. of the Bar of the City of New York, 3-4 (1948).
We do not have in this case unauthorized, arbitrary, or unreasonable inquiries and disclosures with respect to a witness' personal and private affairs so ably and properly denounced in the Sinclair case, supra, at 279 U. S. 291-292. This inquiry is far different from the cases relied upon by the Court. There is no analogy to the case of Richard Thompson, [Footnote 2/13] involving the sermons of clergymen. It is not Floyd's [Footnote 2/14] case, involving criticism of the royal family. There is no resemblance to John Wilkes' struggle for a seat in Parliament. It is not Briggs, [Footnote 2/15] where the prosecutor sought to develop the national origin of policemen. It is not Kilbourn, [Footnote 2/16] involving a private real estate pool.
"a new kind of congressional inquiry unknown in prior periods of American history . . . [i.e.,] a broad scale intrusion into the lives and affairs of private citizens."
As I see it, only the setting is different. It involves new faces and new issues brought about by new situations which the Congress feels it is necessary to control in the public interest. The difficulties of getting information are identical, if not greater. Like authority to that always used by the Congress is employed here, and in the same manner so far as congressional procedures are concerned. We should afford to Congress the presumption that it takes every precaution possible to avoid unnecessary damage to reputations. Some committees have codes of procedure, and others use the executive hearing technique to this end. The record in this case shows no conduct on the part of the Un-American Activities Committee that justifies condemnation. That there may have been such occasions is not for us to consider here. Nor should we permit its past transgressions, if any, to lead to the rigid restraint of all congressional committees. To carry on its heavy responsibility, the compulsion of truth that does not incriminate is not only necessary to the Congress, but is permitted within the limits of the Constitution.
United States v. Rumely, 345 U. S. 41 (1953); Sinclair v. United States, 279 U. S. 263 (1929); Reed v. County Commissioners, 277 U. S. 376 (1928); McGrain v. Daugherty, 273 U. S. 135 (1927); Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv.L.Rev. 153 (1926).
Symposium on Congressional Investigations, 18 U. of Chi.L.Rev. 421, Finer, The British System, 521, 532, 554, 561 (1951).
"All proposed legislation, messages, petitions, memorials, and other matters relating to the subjects listed under the standing committees named below shall be referred to such committees, respectively: . . ."
"(q) . . . (2) The Committee on Un-American Activities, as a whole or by subcommittee, is authorized to make from time to time investigations of (i) the extent, character, and objects of un-American propaganda activities in the United States, (ii) the diffusion within the United States of subversive and un-American propaganda that is instigated from foreign countries or of a domestic origin and attacks the principle of the form of government as guaranteed by our Constitution, and (iii) all other questions in relation thereto that would aid Congress in any necessary remedial legislation."
The Committee is authorized to sit and act at any time, anywhere in the United States and to require the attendance of witnesses and the production of books and papers. A resolution of the Eighty-third Congress adopted the Rules of the previous Congresses as amended by the Legislative Reorganization Act of 1946. H.Res. 5, 83d Cong., 1st Sess., 99 Cong.Rec. 15, 16, 18, 24.
". . . authorized and directed to make a full and complete study and investigation of whether organized crime utilizes the facilities of interstate commerce or otherwise operates in interstate commerce in furtherance of any transactions which are in violation of the law of the United States or of the State in which the transactions occur, and, if so, the manner and extent to which, and the identity of the persons, firms, or corporations by which such utilization is being made, what facilities are being used, and whether or not organized crime utilizes such interstate facilities or otherwise operates in interstate commerce for the development of corrupting influences in violation of law of the United States or of the laws of any State: Provided however, That nothing contained herein shall authorize (1) the recommendation of any change in the laws of the several States relative to gambling, or (2) any possible interference with the rights of the several States to prohibit, legalize, or in any way regulate gambling within their borders."
". . . authorized and directed to conduct a study and investigation of (1) all lobbying activities intended to influence, encourage, promote, or retard legislation, and (2) all activities of agencies of the Federal Government intended to influence, encourage, promote, or retard legislation."
". . . authorized and directed to conduct a full and complete investigation and study (1) to determine the extent to which current literature -- books, magazines, and comic books -- containing immoral, obscene, or otherwise offense matter, or placing improper emphasis on crime, violence, and corruption, are being made available to the people of the United States through the United States mails and otherwise, and (2) to determine the adequacy of existing law to prevent the publication and distribution of books containing immoral, offensive, and other undesirable matter."
". . . authorized and directed to conduct an investigation and study of the extent to which criminal or other improper practices or activities are, or have been, engaged in in the field of labor-management relations or in groups or organizations of employees or employers to the detriment of the interests of the public, employers or employees, and to determine whether any changes are required in the laws of the United States in order to protect such interests against the occurrence of such practices or activities."
Proceedings against Richard Thompson, 8 How.St.Tr. 2 (1680).
See 1 De Lolme, The Rise and Progress of the English Constitution (1838), at 347-348.
Kilbourn v. Thompson, 103 U. S. 168 (1881).
Quinn v. United States, 349 U. S. 155 (1955).
Emspak v. United States, 349 U. S. 190 (1955).
Bart v. United States, 349 U. S. 219 (1955).
United States v. Rumely, 345 U. S. 41 (1953).


§252.2 Revocation of conditional landing permits; removal.
§252.3 Great Lakes vessels and tugboats arriving in the United States from Canada; special procedures.
§252.4 Permanent landing permit and identification card.
§252.5 Special procedures for deserters from Spanish or Greek ships of war.
Authority: 8 U.S.C. 1103, 1184, 1185 (pursuant to E.O. 13323 published on January 2, 2004) , 1258, 1281, 1282; 8 CFR part 2.
(a) Detention prior to examination. All persons employed in any capacity on board any vessel or aircraft arriving in the United States shall be detained on board the vessel or at the airport of arrival by the master or agent of such vessel or aircraft until admitted or otherwise permitted to land by an officer of the Service.
(2) Canadian or British citizen crewmen of aircraft arriving in a State of the United States directly from Canada on flights originating in that country. The crew of a vessel arriving at a United States port that may not require inspection by or clearance from the United States Customs Service is, nevertheless, subject to examination under this part; however, the master of such a vessel is not required to present Form I-95 for any crewman who is not an applicant for a conditional landing permit.
(c) Requirements for landing permits. Every alien crewman applying for landing privileges in the United States is subject to the provisions of 8 CFR 235.1(d)(1)(ii) and (iii), and must make his or her application in person before a Customs and Border Protection (CBP) officer, present whatever documents are required, establish to the satisfaction of the inspecting officer that he or she is not inadmissible under any provision of the law, and is entitled clearly and beyond doubt to landing privileges in the United States.
(d) Authorization to land. The immigration officer in his discretion may grant an alien crewman authorization to land temporarily in the United States for: (1) Shore leave purposes during the period of time the vessel or aircraft is in the port of arrival or other ports in the United States to which it proceeds directly without touching at a foreign port or place, not exceeding 29 days in the aggregate, if the immigration officer is satisfied that the crewman intends to depart on the vessel on which he arrived or on another aircraft of the same transportation line, and the crewman's passport is surrendered for safe keeping to the master of the arriving vessel, or (2) the purpose of departing from the United States as a crewman on a vessel other than the one on which he arrived, or departing as a passenger by means of other transportation, within a period of 29 days, if the immigration officer is satisfied that the crewman intends to depart in that manner, that definite arrangements for such departure have been made, and the immigration officer has consented to the pay off or discharge of the crewman from the vessel on which he arrived. A crewman granted a conditional permit to land under section 252(a)(1) of the Act and paragraph (d)(1) of this section is required to depart with his vessel from its port of arrival and from each other port in the United States to which it thereafter proceeds coastwise without touching at a foreign port or place; however, he may rejoin his vessel at another port in the United States before it touches at a foreign port or place if he has advance written permission from the master or agent to do so.
(e) Conditional permits to land. Unless the crewman is in possession of Form I-184 and is landed under paragraph (d)(1) of this section, the immigration officer shall give to each alien nonimmigrant crewman permitted to land a copy of the Form I-95 presented by the crewman, endorsed to show the date and place of admission and the type of conditional landing permit.
(f) Change of status. An alien nonimmigrant crewman landed pursuant to the provisions of this part shall be ineligible for any extension of stay or for a change of nonimmigrant classification under part 248 of this chapter. A crewman admitted under paragraph (d)(1) of this section may, if still maintaining status, apply for a conditional landing permit under paragraph (d)(2) of this section. The application shall not be approved unless an application on Form I-408, filed pursuant to paragraph (h) of this section, has been approved authorizing the master or agent of the vessel on which the crewman arrived to pay off or discharge the crewman and unless evidence is presented by the master or agent of the vessel to which the crewman will be transferred that a specified position on that vessel has been authorized for him or that satisfactory arrangements have been completed for the repatriation of the alien crewman. If the application is approved, the crewman shall be given a new Form I-95 endorsed to show landing authorized under paragraph (d)(2) of this section for the period necessary to accomplish his scheduled reshipment, which shall not exceed 29 days from the date of his landing, upon surrendering any conditional landing permit previously issued to him on Form I-95.
(g) Refusal of conditional landing permit. When an alien crewman is refused a conditional landing permit for any reason, the Form I-95 presented by him at time of examination shall be endorsed “Permission to land temporarily at all U.S. ports is refused” and the Form I-95 shall be given to the master or agent of the vessel or aircraft and, in the case of vessels, the alien crewman's name shall be listed on the Form I-410 delivered to the master of the vessel upon completion of the examination of the crew. If an alien crewman who has been refused a conditional landing permit is in possession of Form I-184, the Form I-184 shall be lifted by the examining immigration officer and, except in the case of an alien crewman who is refused a conditional landing permit solely because he is not in possession of a valid passport or visa, the Form I-184 shall be voided. In the case of an alien crewman refused a conditional landing permit because he is not in possession of a valid passport or visa, the Form I-184 shall be delivered to the master or agent of the vessel with instructions to return it to the alien crewman after the vessel has departed from the United States.
(h) Authorization to pay off or discharge an alien crewman. Application to pay off or discharge an alien crewman, except an alien lawfully admitted for permanent residence, shall be made by the owner, agent, consignee, charterer, master, or commanding officer of the vessel or aircraft on which the alien crewman arrived on Form I-408 filed with the immigration officer having jurisdiction over the area in which the vessel or aircraft is located at the time of application. The applicant shall be notified of the decision, and, if the application is denied, of the reasons therefor. There shall be no appeal from the denial of an application on Form I-408.
(a) Revocation and removal while vessel is in the United States. A crewman whose landing permit is subject to revocation pursuant to section 252(b) of the Act may be taken into custody by any immigration officer without a warrant of arrest and be transferred to the vessel of arrival, if the vessel is in any port in the United States and has not departed foreign since the crewman was issued his or her conditional landing permit. Detention and removal of the crewman shall be at the expense of the transportation line on which the crewman arrived. Removal may be effected on the vessel of arrival or, if the master of the vessel has requested in writing, by alternate means if removal on the vessel of arrival is impractical.
(b) Revocation and removal after vessel has departed the United States. A crewman who was granted landing privileges prior to April 1, 1997, and who has not departed foreign on the vessel of arrival, or on another vessel or aircraft if such permission was granted pursuant to §252.1(f), is subject to removal proceedings under section 240 of the Act as an alien deportable pursuant to section 237(a)(1)(C)(i) of the Act. A crewman who was granted landing privileges on or after April 1, 1997, and who has not departed foreign on the vessel of arrival, or on another vessel or aircraft if such permission was granted pursuant to §252.1(f), shall be removed from the United States without a hearing, except as provided in §208.2(b)(1) of this chapter. In either case, if the alien is removed within 5 years of the date of landing, removal of the crewman shall be at the expense of the owner of the vessel. In the case of a crewman ordered removed more than 5 years after the date of landing, removal shall be at the expense of the appropriation for the enforcement of the Act.
(a) United States vessels and tugboats. An immigration examination shall not be required of any crewman aboard a Great Lakes vessel of United States registry or a tugboat of United States registry arriving from Canada at a port of the United States who has been examined and admitted by an immigration officer as a member of the crew of the same vessel or tugboat or of any other vessel or tugboat of the same company during the current calendar year.
(6) Will depart to Canada with the vessel or tugboat.
A Form I-184 is valid until revoked. It shall be revoked when an immigration officer finds that the crewman is in the United States in willful violation of the terms and conditions of his or her permission to land, or that he or she is inadmissible to the United States. On revocation, the Form I-184 shall be surrendered to an immigration officer. No appeal shall lie from the revocation of Form I-184.
(a) General. Under E.O. 11267 of January 19, 1966 (31 FR 807) and 28 CFR 0.109, and E.O. 11300 of August 17, 1966, (31 FR 11009), and 28 CFR 0.110, the Commissioner and immigration officers (as defined in §103.1(j) of this chapter) are designated as “competent national authorities” on the part of the United States within the meaning of Article XXIV of the 1903 Treaty of Friendship and General Relations between the United States and Spain (33 Stat. 2105, 2117), and “local authorities” and “competent officers” on the part of the United States within the meaning of Article XIII of the Convention between the United States and Greece (33 Stat. 2122, 2131).
(b) Application for restoration. On application of a Consul General, Consul, Vice-Consul, or Consular-Agent of the Spanish or Greek Government, made in writing pursuant to Article XXIV of the treaty, or Article XIII of the Convention, respectively, stipulating for the restoration of crewmen deserting, stating that the person named therein has deserted from a ship of war of that government, while in any port of the United States, and on proof by the exhibition of the register, crew list, or official documents of the vessel, or a copy or extract therefrom, duly certified, that the person named belonged, at the time of desertion, to the crew of such vessel, such person shall be taken into custody by any immigration officer without a warrant of arrest. Written notification of charges shall be served on the alien when he or she is taken into custody or as soon as practical thereafter.
(4) The individual had not previously been arrested for the same cause and set at liberty because he or she had been detained for more than 3 months, or more than 2 months in the case of a deserter from a Greek ship of war, from the day of his or her arrest without the Spanish or Greek authorities having found an opportunity to send him or her home, the individual shall be served with a copy of the findings, from which no appeal shall lie, and be surrendered forthwith to the Spanish or Greek authorities if they are prepared to remove him or her from the United States. On written request of the Spanish or Greek authorities, the individual shall be detained, at their expense, for a period not exceeding 3 months or 2 months, respectively, from the day of arrest to afford opportunity to arrange for his or her departure from the United States.
(d) Timely departure not effected. If the Spanish authorities delay in sending the individual home for more than 3 months, or if the Greek authorities delay in sending the individual home for more than 2 months, from the day of his or her arrest, the individual shall be dealt with as any other alien unlawfully in the United States under the removal provisions of the Act, as amended.
(e) Commission of crime. If the individual has committed any crime or offense in the United States, he or she shall not be placed at the disposal of the consul until after the proper tribunal having jurisdiction in his or her case shall have pronounced sentence, and such sentence shall have been executed.


Here’s an issue of first impression for SCOW. Lessard v. Schmidt, 349 F. Supp. 1078, 1092 (E.D. Wis. 1972) established procedural and substantive due process rights for persons undergoing mental commitments. One of those rights is the right to particularized notice of the basis for detention, including, the legal standard upon which the person is detained. Id. at 1092. T.L.R didn’t receive that notice.
To commit someone under Chapter 51, the county must prove, and the circuit court must find, that the person is mentally ill, a proper subject of commitment, and dangerous under one of the 5 distinct standards in §51.20(1)(a)2.a-e.
Wisconsin Stat §51.20(1)(a)2. does not indicate that a person subject to commitment must be notified of each specific standard. T.L.R. was given appropriate notice of the standards of dangerousness. Accordingly, his procedural due process rights were not violates. Opinion, ¶15.
T.L.R. reads §51.20(1)(a) differently, but regardless of who it right about the plain language, due process still requires the government to give a person notice of the legal standard he is being detained under–not notice of every possible standard he could be detained under. How is the person supposed to prepare a defense if he doesn’t know whether he’s alleged to be suicidal, violent towards others or unable to care for himself? Those defenses require different kinds of evidence. See .e.g. State v. Bronkhorst, 2001 WI App 190, ¶15, 247 Wis. 2d 247, 633 N.W.2d 236 (respondent must receive notice of charge in order to prepare a defense)(citing In re Gault, 387 U.S. 1, 33-34 (1967) and Cole v. Arkansas, 333 U.S. 196 (1948)).
But here’s another problem. If neither the County nor the court has to tell a person which standard of dangerousness he met, then how does the court know which involuntary medication provision applies? The commitment and involuntary medication statutes intertwine–§51.61(1)(g)3m applies to 5th standard commitments and §51.61(1)(g)4 applies to commitments under the other 4 standards.


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I’m pleased to bring you Florida Insurance Matters, a monthly update on Florida insurance-related legal developments. Please contact me any time with questions or feedback.
The 3rd DCA upheld the long-standing protection from disclosure of documents in the insurer’s claim file. The case involved a covered loss and the insureds sued for breach of contract alleging the payments were inadequate. After conducting an in-camera inspection, the trial court ordered the insurer to produce documents that were generated before the date the PA contested the adequacy of the payment. The appellate court quashed the trial court’s order referencing a multitude of cases and the various courts’ rationale of work product, relevancy and confidential and proprietary trade secrets. The 3rd DCA recognized that the 4th DCA looks at the issue from a “more specific approach” based on a work-product, but declined to certify a conflict to the Florida Supreme Court in view of the facts of the case.
Homeowners Choice Prop. and Cas. Ins. Co., v. Avila (3d DCA, April 25, 2018).
The appellate court held there is no such thing as a “claims file privilege” and focused its decision on the rationale of many other cases where the determinative issue is what type of action the insured has brought (i.e., the documents are not relevant in a first party breach of contract action).
The court reiterated that it was not necessary for the trial court to review certain categories of disputed documents to determine the applicability of privilege; however, a privilege log may be required in response to a specific document request for photographs within the insurer’s claim file.
The Florida Supreme Court quashed the 5th DCA’s decision in Mone v. Sawgrass Mutual Ins. Co., which refused to apply a 1.5 multiplier to an attorney fee awarded to the insured who prevailed in a sinkhole dispute. The 5th District reversed the trial court’s application of a multiplier finding the case did not involve “rare” and “exceptional” circumstances. The Florida Supreme Court, however, reversed the 5th DCA’s decision in light of its recent holding in Joyce v. Federated Nat’l Ins. Co, when the Court made it clear there is no “rare” and “exceptional” circumstances requirement before a contingency fee multiplier can be applied.
Mone v. Sawgrass (Fla. Sup. Court), April 20, 2018.
The Florida Supreme Court also reversed Rohrbacher v. Garrison Proper and Cas. Ins. Co., on the same grounds, after the 5th DCA held that the insurer’s confession of judgment and stipulation to a fee entitlement in a PIP case did not meet the “rare” and “exceptional” circumstances requirement.
Insurers can expect to see more fee multiplier disputes in the trial courts.
The 2nd DCA upheld the trial court’s dismissal of a proposed class action finding as a matter of law that an insured has an obligation to pay the required deductible even when the insurer elects to repair damaged property. The insured argued that once the insurer elects to repair damaged property, whether the loss is total or partial, the “Valued policy law” precluded the insurer from requiring the insured to pay the policy deductible. The court construed the VPL statute, which allows an insurer to elect to repair damaged property “without contribution of the part of the insured,” and held the statute does not apply when the insured suffers a partial loss and the insurer elects to repair.
Ganzemuller v. Omega Ins. Co. (Fla. 2d DCA, April 27, 2018).
Consider updating your policy language to clearly address the application of the deductible when the insurer elects to repair damaged property.
For over 45 years, Colodny Fass has represented insurers in complex and high-risk litigation including class actions, bad faith, insurance fraud, multi-jurisdictional cases, coverage matters, and fact-intensive, multi-party lawsuits. The Daily Business Review has recognized Colodny Fass as having the Insurance Litigation Department of the Year in South Florida.
Amy L. Koltnow, a Colodny Fass Shareholder, focuses her practice on insurance disputes from trial through appeals. She has represented insurance companies in federal and state courts, as well as in mediation and administrative forums. Ms. Koltnow oversees complex litigation matters and has successfully defended numerous class actions and insurance bad faith cases. She is a member of the Claims and Litigation Management Alliance, a national, invitation-only organization committed to furthering high standards of litigation and claims management in pursuit of client defense.
To view Ms. Koltnow’s complete professional biography, click here.

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A Maryland family court making child custody decisions makes two mutually exclusive determinations: 1) legal custody (a determination of which parent may make decisions regarding the health, education, religion and welfare of the child); and 2) physical custody (who the child will reside with).
The trial judge has the authority to determine custody, regardless of whether “joint custody has existed in the past, or award custody to one of the parents, or to a third person, depending upon what is in the best interests of the child.” Taylor v. Taylor, 306 Md. 290, 301, 508 A.2d 964 (1986).
Legal custody carries with it the right and obligation to make long-range decisions involving education, religious training, discipline, medical care, and other matters of major significance concerning the child's life and welfare.
[r]arely, if ever, should joint legal custody be awarded in the absence of a record of mature conduct on the part of the parents evidencing an ability to effectively communicate with each other concerning the best interest of the child, and then only when it is possible to make a finding of a strong potential for such conduct in the future.
Taylor, 306 Md. at 304, 508 A.2d 964.
While most matters reviewed and adjudicated in a divorce proceeding are reviewed as a matter of equity, child custody is based on the “best interests” of the minor child and not a consideration of the parent’s rights. See Md. Ann. Code, Family Law Article § 1-201(a); Montgomery County Dep't of Social Services v. Sanders, 38 Md. App. 406, 381 A.2d 1154 (1978); Wagner v. Wagner, 109 Md. App. 1, 37, 41, 674 A.2d 1 (1996). In other words, while a parent may say, “I have a right to see my child” (an equity argument), that is not consistent with child custody law in Maryland.
One judge has stated that “[t]he bottom line in any custody dispute is: what is in the ‘best interests' of the children?; and a judge agonizes more about reaching the right result in a contested custody issue than about any other type of decision he renders. The agony is complicated even more when both parties are dedicated and devoted… .” Leary v. Leary, 97 Md. App. 26, 37, 627 A.2d 30, 35 (1993) (internal citation omitted). In any divorce or custody action where the custody of a child or children is being disputed, the court has a myriad of factors that it must consider in determining child custody.
Who makes and takes child to dental and medical appointments?
Is the child fearful of the parent?
Has the child been pressured into a "preference"?
Will the child be involved in school activities where he or she will be living?
Is the child involved in clubs, e.g. Boy Scouts?
Is the location of the home suitable for children?
What is the location of school child will attend?
Does the school provide special programs?
Are there concerns for safety of the child in the neighborhood or at school?
Responsibility - who made decisions in marriage?
Where are grandparents, aunts, uncles, cousins geographically?
Which parent is more likely to allow child continued contact with the other parent?
Has a party interfered with visitation with the child in the past?
Is there a history of visitation disputes?
Have there been any issues with telephonic visitation or access?
How long has this arrangement been in place?
How was the living arrangement created, e.g., agreement between the parties, Court Order, desertion by one party, etc.
Is the parent involved in the lives of the children?
Does the parent assist in making decisions (before separation and after)?
Does the parent keep the other informed on activities, failures, achievements?
Which parent can meet special financial needs?
Has other parent been providing support?
Has litigation been necessary to obtain support?
Arrearages incurred due to withholding or non-payment of support?
Did a parent leave the home without the children?
How often does the parent visit/contact children?
To whom is the child most "bonded" psychologically?
In order to fully prepare and present a credible case for custody, you should fully discuss and prepare to testify as to the applicable factors.
 A “system of law originating in the English chancery and comprising a settled and formal body of legal and procedural rules and doctrines that supplement, aid, or override common and statute law and are designed to protect rights and enforce duties fixed by substantive law.” Merriam Webster Dictionary, Equity.
 See Taylor v. Taylor, 306 Md. 290, 508 A.2d 964 (1986) and Montgomery County Dep't of Social Services v. Sanders, 38 Md. App. 406, 381 A.2d 1154 (1978).
Darin L. Rumer is a senior counsel in Joseph, Greenwald & Laake’s Family Law practice group. Mr. Rumer has successfully tried multiple divorce, custody and child support cases throughout the state of Maryland and routinely provides counsel to clients as they navigate a difficult and stressful time in their lives. Mr. Rumer’s calm demeanor and ability to diffuse tense situations has earned him accolades from mediators, judges, clients and opposing parties. A dedicated advocate, Mr. Rumer is willing to go to the mat, but he also understands that a negotiated resolution is in many clients’ best interest. Mr. Rumer routinely advises and represents clients in family law matters including child custody and divorce litigation, separation agreements, child support and alimony issues, property distribution issues, domestic violence, and other areas of family law.

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