NAACP v. Committee on Offenses Against the Administration of Justice Brief of Defendant in Error

    IN THE

Supreme Court of Appeals of Virginia
A T  RICHMOND

Record Nos. 5614, 5615

N.A.A.C.P. LEGAL DEFENSE AND EDUCATIONAL 
FUND, INCORPORATED,

v.
Plaintiff in Error

COM M ITTEE ON OFFENSES AGAIN ST THE 
AD M IN ISTRATIO N  OF JUSTICE,

Defendant in Error
AND

N.A.A.C.P. an d  VIRGIN IA STATE CONFERENCE 
OF N.A.A.C.P. BRANCHES,

Plaintiffs in Error 
v.

COM M ITTEE ON OFFENSES AGAIN ST THE 
AD M IN ISTRATIO N  OF JUSTICE,

Defendant in Error

BRIEF OF DEFENDANT IN ERROR

H o n . R obert Y. B u tton  
Attorney General of Virginia 
Supreme Court of Appeals Building 
Richmond, Virginia

W il l ia m  H . K in g  
915 Mutual Building 
Richmond, Virginia

Counsel for Defendant in Error



S t a t e m e n t  of t h e  C ase  a n d  of t h e  P o in ts  I n v o l v e d .........  2

S t a t e m e n t  of t h e  F a c t s .......................................................... 3

A rg u m en t  .............................................................................. g

I. Section 30-42(b) of the Code Clearly Authorizes the 
Interrogatories .................................................................. g

II. The Interrogatories Clearly State the Purpose of the 
Committee’s Investigation and the Relevancy of the 
Information Sought .................................................... 9

III. Answering Interrogatory 1(a) Will Not Deny the
Movants or Their Contributors Their Rights of “ Free­
dom of Association” or Rights of “ Property” ...............  10

IV. The Committee Seeks the Names of Contributors in
Keeping with a Valid Legislative Purpose.......................  11

V. Evidence Was Properly Excluded by the Lower Court 19

VI. No Inquiry May Be Made Into Motives Prompting the 
Committee’s Creation, Nor Motives Prompting Its In­
vestigation .................................     21

VII. Other Matters Advanced by the Plaintiffs in E rror..... 24
(a) Equal Protection........................................................  24
(b) Constitutionality of Section 58-84.1 ........................ 24
(c ) The Attorney General’s Representations in Harri­

son v. N.A.A.C.P................. ....................................  25

C o n clu sio n  .............................................................................  26

TABLE OF CITATIONS

Cases

American Communications Associations v. Douds, 339 U S 382 
94 L. Ed. 925 (1950) .......................................................’ 12

TABLE OF CONTENTS
Page



Page

Bates v. Little Rock, 361 U. S. 516, 4 L. Ed. 2d 480 (1960)
11, 14, 17,

Burch v. Grace Street Bldg. Corp., 168 Va. 329, 191 S. E. 672 
(1937) ........................................................................................

Communist Party v. S.A.C. Board, 367 U. S. 1, 6 L. Ed. 2d 625 
(1961) ..._.................................................................. .................

Daniel v. Family Security Life Insurance Company, 336 U. S. 
220, 93 L. Ed. 632 (1949) ........................................................

Fletcher v. Peck, 6 Cranch 87, 3 L. Ed. 162 (1809) .................

Gange Lumber Co. v. Henniford Co., 185 Wash. 180, 53 P. 2d 
743 (1936) .................... ..................- ............................... ........

Gibson v. Florida Investigation Committee, 372 U. S. 539, 9 L. 
Ed. 2d 929 (1963) ..............................................................  11,

Goesaert v. Cleary, 335 U. S. 464, 93 L. Ed. 163 (1948) .........

Hamilton v. Kentucky Distilleries and W. Co., 251 U. S. 146, 
64 L. Ed. 194 (1919) ...............*................. ..............................

Harrison v. N.A.A.C.P., 360 U. S. 167, 3 L. Ed. 1152 (1959)

Hubbard v. Mellon, 5 Fed. 2d 764 (D.C. Cir. 1925) .................

Louisiana, ex rel. Gremillion v. N.A.A.C.P., 366 U. S. 293, 
6 L. Ed. 2d 301 (1961) .....................................................  11,

McCulloch v. Maryland, 4 Wheat. (17 U. S.) 316, 4 L. Ed.
579 ................................................................................. _ ......

N.A.A.C.P. v. Alabama, 357 U. S. 449, 2 L. Ed. 2d 1488 
(1958) .............................................. .................... 10, 14, 20,

N.A.A.C.P. v. Button, 371 U. S. 415, 9 L. Ed. 2d 405 ...............

N.A.A.C.P. v. Committee, 199 Va. 665, 101 S. E. 2d 63 (1958)

N.A.A.C.P. v. Committee, 201 Va. 890, 114 S. E.2d 721 (1960)

N.A.A.C.P. v. Harrison, 202 Va. 142, 116 S. E. 2d 55 (1960) 5

a

20

27

13

23

22

18

13

23

22
25

17

16

10

26

6

22
24

i, 9



New York ex rel. Bryant v. Zimmerman, 278 U. S. 63, 73 L.
Ed. 184 (1928) ......................................................................... 12

Shelton v. Tucker, 364 U. S. 479, 5 L. Ed. 2d 231 (1960)
11, 15, 18

Shenandoah Lime Company v. Governor, 115 Va. 865, 80 S. E.
753 (1914) ................................................................................  21

Telephone Company v. Newport News, 196 Va. 627, 85 S. E.
2d 345 (1955) .................................................................... 21, 22

Tenney v. Brandhove, 341 U. S. 367, 95 L. Ed. 1019 (1951) .... 23

Uphaus v. Wyman, 360 U. S. 72, 3 L. Ed. 2d 1090 (1959) 12, 13

Watkins v. United States, 354 U. S. 178, 1 L. Ed. 2d 1273 
(1957) .............................................   23

Other Authorities

Constitution of the United States:
Amendment X IV  ...............................................................    3

Constitution of Virginia:
Section 11 .............................................    3
Section 12 .....................   3

Acts of Assembly, 1956 Extra Session:
Chapter 31 .........................................................      25
Chapter 3 2 ..................................................................................  25
Chapter 3 3 .....................................................................    25
Chapter 3 4 .......................................      20
Chapter 3 6 ...................................................    25
Chapter 37 ..........................................................................  20, 21

Acts of Assembly, 1958:
Chapter 373 ...............................

Hi

Page

21



Page

Code of Virginia:
Section 30-42(b) ............
Section 54-44 ....................
Section 58-81 (m ) (2) .....
Section 58-84.1 ........ ........

Rules of Court 5:1, Section 4 . 

Annotation, 103 A. L. R. 513

2, 3, 5, 6, 8, 9, 24
............. ..............  9
.......................  6, 25
...........  6, 8, 24, 25

25

18

iv



IN THE

Supreme Court of Appeals of Virginia
A T RICHMOND

Record Nos. 5614, 5615

N.A.A.C.P. LEGAL DEFENSE AND EDUCATIONAL 
FUND, INCORPORATED,

Plaintiff in Error
v.

COM M ITTEE ON OFFENSES AGAIN ST THE 
ADM IN ISTRATION  OF JUSTICE,

Defendant in Error
AND

N.A.A.C.P. an d  VIRG IN IA STATE CONFERENCE 
OF N.A.A.C.P. BRANCHES,

Plaintiffs in Error
v.

COM M ITTEE ON OFFENSES AGAIN ST THE 
AD M IN ISTRATIO N  OF JUSTICE,

Defendant in Error

BRIEF OF DEFENDANT IN ERROR

These two cases having been heard together in the 
Hustings Court of the City of Richmond, the resulting 
records are virtually identical. Because of this, and consid­
ering it a matter of convenience to the Court, we have 
prepared and filed but one brief in response to those of 
the several plaintiffs in error.



2

W e will hereinafter refer to the National Association 
for the Advancement of Colored People as the “ N.A.A. 
C.P.,” to the Virginia State Conference of N.A.A.C.P. 
Branches as the “ Conference,” and to the N.A.A.C.P. 
Legal Defense and Educational Fund, Incorporated as 
the “ Fund.” Also, at times we will refer to these three 
parties together as “ movants,” that being a designation 
they assigned themselves in the court below. The Com­
mittee on Offenses Against the Administration of Justice 
will be referred to as the “ Committee.” References to
pages of the brief of the Fund will be indicated as (F ..... ),
references to the pages of the joint brief o f the N.A.A.
C.P. and the Conference will be indicated as (N ..... ), and
references to pages of the printed record will be indicated 
as (R ......).

STA TE M E N T OF TH E CASE AND  
OF TH E POINTS IN V O L V E D

The Fund’s statement of material proceedings in the 
lower court is accurate. However, the several statements 
made by the appealing parties of the questions involved 
are exceedingly diverse; and, especially in the case of the 
Fund, beg the question.

Accordingly, we here state briefly what we consider 
the basic questions involved:

1. Did Section 30-42(b ) o f the Code o f Virginia 
authorize Interrogatory No. 1(a) ?

2. Did the Interrogatories sufficiently inform the 
movants of the purpose for which the answers were 
requested, and the purpose of the Committee’s inves­
tigation ?



3

3. Will the answering of Interrogatory No. 1 (a ) 
violate movant’s rights of “ freedom of association” 
or rights in “ property” guaranteed by Sections 11 
and 12 of the Constitution of Virginia and by the 
Due Process Clause of the Fourteenth Amendment 
to the Constitution of the United States?

4. Did the trial court err in excluding certain evi­
dence as being either “hearsay” or “ irrelevant” ?

STATEM EN T OF TH E FACTS

The statements in the movants’ briefs respecting the 
purposes of the N.A.A.C.P.,the Fund, and the Conference 
substantially accord with the evidence. Most of their 
other statements of fact are, however, based upon hearsay 
evidence stricken by the trial court. Moreover, their state­
ments based on evidence which was admitted contain 
numerous unwarranted inferences. Because of this we 
recite, in correct perspective, those facts shown by the 
evidence.

Stated simply, Section 30-42(b ) of the Code of V ir­
ginia provides that the Committee investigate the manner 
in which the laws of the Commonwealth relating to its 
income and other taxes are being observed by those who 
seek to promote or support litigation to which they are not 
parties, contrary to law. Pursuant to this provision, the 
Committee issued the following interrogatories to the 
plaintiffs in error:

“ 1. (a ) State the name and address of each resi­
dent of Virginia and of each firm, corporation and 
enterprise situated or doing business therein who or 
which, since December 31, 1957, has made a donation 
of $25.00 or more to the Legal Defense Fund;



4

“ (b ) State the time and the amount of each such 
donation.

“ 2. (a ) State the name and address of each recip­
ient of sums paid by the Legal Defense Fund since 
December 31, 1957 for legal services rendered it or 
any other in the Commonwealth of Virginia; and 

“ (b ) State the time and the amount of each such 
payment, and the nature of the services for which 
each payment was made.

“ The word ‘donation’ as used in interrogatory 
No. 1 shall be deemed to include, but shall not be lim­
ited to, each payment of $25.00 or more received by 
the Legal Defense Fund as a membership charge or 
fee, it being understood that the Legal Defense Fund 
in answering the interrogatory is not required to 
state the purpose of any donation.

“ These interrogatories are propounded pursuant 
to §30-42(b) of the Code of Virginia, and answers 
thereto are required to aid the Committee in deter­
mining what donors, if any, have wrongfully record­
ed their donations as allowable deductions in their 
income tax returns filed with the Commonwealth of 
Virginia, and what recipients, if any, have wrong­
fully failed to show as income in such returns fees 
for legal services rendered in the Commonwealth of 
Virginia.” (R. 8)

Although the interrogatories we have quoted are ad­
dressed to the Fund, interrogatories directed to the N.A. 
A.C.P. and to the Conference are identical excepting only 
that their names were appropriately substituted for that 
of the Fund, and the year designated in questions 1(a) 
and 2 (a ), was changed to “ 1956” rather than “ 1957.”

It is indeed significant that the Fund fully answered 
Interrogatories 1 (b ) , 2(a) and 2(b)  (R. 17-23), yet the 
N.A.A.C.P. and the Conference answered nothing. Ac­



5

cordingly, the Fund has moved to quash only Interroga­
tory 1 (a ), while the N.A.A.C.P. and the Conference have 
moved to quash the interrogatories in their entirety.

Due to the particular attention directed to Interroga­
tory 1 (a ), it is appropriate to consider those laws and 
facts which make clear the propriety of the information 
there sought.

The pertinent statute under which the Committee pro­
pounded its interrogatories to the plaintiffs in error is 
Section 30-42(b ) of the Code of Virginia, which pro­
vides :

“ (b ) The joint committee is further authorized 
to investigate and determine the extent and manner 
in which the laws of the Commonwealth relating to 
State income and other taxes are being observed by, 
and administered and enforced with respect to, per­
sons, corporations, organizations, associations and 
other individuals and groups who or which seek to 
promote or support litigation to which they are not 
parties contrary to the statutes and common law per­
taining to champerty, maintenance, barratry, run­
ning and capping and other offenses of like nature.”

It is clear that an unauthorized practitioner directing 
or controlling litigation is guilty of “ other offenses” speci­
fied in this Section. In N . A . A . C . P e t  al. v. Harrison, 
202 Va. 142, 155-157, 116 S. E. 2d 55 (1960), this Court 
found that the movants were engaged in the unauthorized 
practice of law. This finding was not reversed on the ap­
peal taken to the Supreme Court of the United States, 
that Court limiting its decision to a finding that these 
organizations were not improperly soliciting legal busi­
ness for those lawyers forming their respective staffs.



6

See, N.A.A.C.P. v. Button, 371 U. S. 415, 9 L. Ed. 2d 
405 (1963).

That contributors to the Fund, or the N.A.A.C.P., or 
the Conference are “ persons” who “ support” litigation to 
which they are not parties cannot be denied. Among ac­
knowledged purposes of these organizations is the support 
of litigation (see Exhibits 1, 2, 3, D and E ). Indeed, the 
support of litigation is the primary purpose of the Fund, 
according to the testimony of its former Director and 
Chief Counsel, now Judge Thurgood Marshall (R. 70). 
And W . Lester Banks, Executive Secretary of the Con­
ference, gave like testimony concerning the support of 
litigation by the N.A.A.C.P. and the Conference (R . 80- 
81). Also these organizations state that their work is 
financed entirely by contributions and “ membership fees” 
which are in the nature of contributions (see Exhibit 6, 
p. 67, and R. 70-71). It necessarily follows, therefore, 
that an individual who contributes funds to an organiza­
tion for use in its program of litigation is “ supporting” 
litigation within the terms of Section 30-42(b ) of the 
Code o f Virginia.

Further, no person making a contribution to any of 
the plaintiffs in error may deduct such contribution in 
computing income taxes payable to the Commonwealth of 
Virginia. Such deduction is prohibited by Section 58-84.1 
and Section 58-81 (m ) (2 ) of the Code of Virginia.

The movants have contended that information as to 
whether such deductions have been improperly made can 
be obtained by the Committee from information within 
the knowledge of the Department of Taxation of V ir­
ginia. However, as testified by Mr. Edgar G. Hobson of 
that Department, it would take the 26 members o f the



7

staff of his office two years to audit the returns involved 
here (R. 107-108). Although admittedly a full audit 
would not be necessary to check the deduction items of the 
returns, each return would have to be individually exam­
ined since all returns are filed together without regard 
to whether the short or long form is used (R. 113). Mak­
ing the gratuitous assumption that the returns could be 
checked for deductions at the rapid rate of 120 per hour, 
it would take approximately 42,000 man hours to check 
the 5,000,000 returns on hand from 1957 to the time of 
the interrogatories. At a pay rate of but one and three- 
fourths dollars per hour, therefore it would cost the Com­
monwealth of Virginia more than $70,000 to do what 
movants have suggested the Committee undertake as an 
alternative to the present interrogatories.

The plaintiffs have asserted that their disclosing to the 
Committee the names of those who contribute more than 
$25.00 in any one year would cause such contributors to 
suffer economic reprisals and other harm. The evidence 
before the lower court did not support this assertion. Al­
though on the hearing below there appeared local and 
national leaders of the N.A.A.C.P. and the Fund, includ­
ing the Executive Secretary of the Conference (R. 77), 
the President of a local branch of the N.A.A.C.P. and a 
former member of the Executive Board, Vice-President, 
and President of the Conference (R. 104), and the Na­
tional Director and Chief Counsel of the Fund (R. 68), 
not one of these could testify to ever having himself suf­
fered any reprisal or other harrassment by reason of his 
known association with the N.A.A.C.P. or the Fund. The 
movants did produce one witness, Sarah Patton Boyle of 
Albemarle County, Virginia, and a member o f the white



8

race, who testified that she had worked actively in the 
white community on behalf of the N.A.A.C.P. and as a 
result had been given “ deep freezes” by her social ac­
quaintances (R. 100). She also testified that “ threats” did 
not bother her (R. 103).

However, the full answer to this assertion of “ fear” of 
economic and other harm was given by the testimony of 
Senator Joseph C. Hutcheson, Chairman of the Com­
mittee. Senator Hutcheson testified that the Rules of the 
Committee make private all information obtained through 
its investigations, that such information is not made pub­
lic, and that it is only released to proper lawful authorities 
in those instances where wrongs had been committed (R. 
116-117). Thus, any disclosure to be made by the Com­
mittee as a result of information given it in response to 
Interrogatory 1 (a ), would concern only known violators 
of Section 58-84.1 of the Code o f Virginia, and such dis­
closure would be made only to appropriate enforcement 
authorities. Most certainly, this could not involve eco­
nomic or other harm to the plaintiffs in error, or to any 
law abiding member or contributor.

A R G U M E N T

L

Section 30-42(b) of the Code Clearly 
Authorizes the Interrogatories

The movants assert that Interrogatory No. 1 (a ) is not 
authorized by Section 30-42(b ) of the Code, first, be­
cause neither the Fund, the Conference, nor the N.A.A. 
C.P. support litigation “ contrary to”  any law of Virginia.



9

As previously stated, this Court found in N.A.A..C.P. v. 
Harrison, 202 Va. 142, 155-157, that each of the parties 
was engaged in the unauthorized practice of law. The 
unauthorized practice of law is plainly the “ promoting” 
and “ supporting” of litigation contrary to the laws of 
Virginia (see Section 54-44 of the Code of Virginia).

The movants next say that their contributors are not 
“ supporting” litigation within the meaning of Section 30- 
42(b). This position is untenable. As we have shown, the 
plaintiffs in error publicly champion their interest and 
participation in litigation to which they are not themselves 
parties. It necessarily follows that any individual who 
contributes funds to either of the movants for use in aid 
of such purposes is “ supporting” litigation within the 
terms of Section 30-42(b ) of the Code of Virginia.

All this falls clearly within the authority granted the 
Committee by Section 30-42(b ).

II.

The Interrogatories Clearly State the Purpose of the 
Committee’s Investigation and the Relevancy of the 
Information Sought.

The movants next object to the interrogatories on the 
asserted ground that their purpose has not been made 
clear (F. 18, 19). We submit, however, that such purpose 
and relevancy was plainly stated by the last paragraph of 
the interrogatories themselves. As previously shown, that 
paragraph says:

“ These interrogatories are propounded pursuant 
to Section 30-42(b ) of the Code of Virginia, and



10

answers thereto are required to aid the Committee in 
determining what donors, if any, have wrongfully 
recorded their donations as allowable deductions in 
their income tax returns filed with the Common­
wealth of Virginia, and what recipients, if any, have 
wrongfully failed to show as income in such returns 
fees for legal services rendered in the Commonwealth 
of Virginia.”

Moreover, an analysis of the detailed motion to quash 
made by the N.A.A.C.P. and the Conference (R. 
10) and the examination of Mr. Hobson by counsel for 
the movants (R. 64-68, 111-113) demonstrates that the 
movants knew exactly the purpose for which the names 
were sought, and how they would be relevant to an in­
quiry into the tax returns of contributors to, and lawyers 
receiving fees from, the plaintiffs in error.

III.

Answering Interrogatory 1(a) Will Not Deny the M o­
vants or Their Contributors Their Rights of “Freedom 
of Association” or Rights of “Property.”

Our adversaries rely upon several cases recently decided 
by the Supreme Court of the United States in support of 
their contention that answers to Interrogatory 1(a) would 
violate their rights o f freedom of association and rights 
of property as guaranteed by the Fourteenth Amendment 
to the Constitution o f the United States and by Sections 
11 and 12 of the Constitution of Virginia.

The cases so relied on are:

1. N.A.A.C.P. v. Alabama, 357 U. S. 449, 2 L. Ed. 2d 
1488 (1958).



11

2. Bates v. Little Rock, 361 U. S. 516, 4 L. Ed. 2d 
480 (1960).

3. Shelton v. Tucker, 364 U. S. 479, 5 L. Ed. 2d 231 
(1960).

4. Louisiana, ex rel. Gremillion v. N.A.A.C.P., 366 
U. S. 293, 6 L. Ed. 2d 301 (1961).

5. Gibson v. Florida Investigation Committee, 372 U. 
S. 539, 9 L. Ed. 2d 929 (1963).

In each of these cases, there was an uncontroverted 
showing that general public disclosure would be made, 
and that harm could be expected to result from such 
disclosure (cases 1, 2, 3, 4 and 5 ) ; or that the informa­
tion was not sought pursuant to a valid legislative purpose 
(case 1 ); or that the information sought was broader 
than reasonably necessary, or had no relevance, to the 
legislative purpose (cases 1, 2, 3, 4 and 5).

By contrast, no public disclosure is here threatened, nor 
will the giving of such answers cause economic or other 
harm. Further, and as shown, the answering of Interrog­
atory 1(a) will be narrow in scope and will serve a valid 
legislative purpose.

The five cases just mentioned will be dealt with more 
fully later in this brief, as will the “ violations of right” 
asserted by the plaintiffs in error.

IV .

The Committee Seeks the Names of Contributors in 
Keeping with a Valid Legislative Purpose

That the interests of an individual to “ freedom of asso­
ciation” must give way to overbalancing public interests 
is firmly established. It is where the State has failed to



12

show that information sought is relevant to a valid legis­
lative purpose that disclosure has been denied.

As was said by Chief Justice Vinson in American Com­
munications Associations v. Douds, 339 U. S. 382, 94 L. 
Ed. 925, 944 (1950):

“ We have never held that such freedoms (freedom 
of speech and association as guaranteed by First and 
Fourteenth Amendments) are absolute. The reason 
is plain. As Mr. Chief Justice Hughes put it, ‘Civil 
liberties, as guaranteed by the Constitution, imply 
the existence of an organized society maintaining 
public order without which liberty would be lost in 
the excesses of unrestrained abuses.’ * *

Similarly, in New York ex rel. Bryant v. Zimmernmn, 
278 U. S. 63, 73 L. Ed. 184, 189 (1928), wherein it was 
held that members of the Ku Klux Klan had no absolute 
right to keep secret their membership, the Court said:

“The relators’ contention under the due process 
clause is that the statute deprives him of liberty in 
that it prevents him from exercising his right of 
membership in the association. But his liberty in this 
regard, like most other personal rights, must yield to 
the rightful exertion of the police power. There can 
be no doubt that under that power the state may pre­
scribe and apply to associations having an oath bound 
membership any reasonable regulation calculated to 
confine their purposes and activities within limits 
which are consistent with the rights of others and the 
public welfare. * * *”

More recently, in Upliaus v. Wyman, 360 U. S. 72, 3 L. 
Ed. 2d 1090 (1959), it was held that State interests in



13

investigating possible subversive activities outweighed an 
individual’s right to “ freedoom of association.” In that 
case there was compelled a disclosure to a New Hamp­
shire legislative committee a guest list of a summer camp 
used as a mecca by intellectuals whose views were said to 
be “ unpopular” or “unorthodox.”

Of special significance is Communist Party v. S.A.C. 
Board, 367 U. S. 1, 6 L. Ed. 625 (1961), wherein the 
Court held that a federal statute requiring registration 
and the filing of membership lists by the Communist 
Party involved information sought for a valid legislative 
purpose, and could not, therefore, be kept secret on 
grounds of “ freedom of association.” The Court ex­
plained its holdings in cases relied upon by movants as 
being based upon findings that in those cases the infor­
mation bore no relation to a valid legislative purpose (see 
6 L. Ed. 2d at page 684 et seq.).

In contrast to the foregoing cases where disclosure 
was compelled, the Supreme Court has denied the right 
of the States to compel disclosure only where it has found 
that such disclosure would result in harm, was not sought 
in connection with a valid legislative purpose, or was “ too 
broad” or without relevance to the purported purpose for 
which disclosure was sought.

The case most strongly relied upon by movants is Gib­
son v. Florida Investigation Committee, 372 U. S. 539, 
9 L. Ed. 2d 929 (1963). There the N.A.A.C.P. was 
being subjected to investigation, and the President of its 
Miami Branch was called upon by the Committee to 
testify at a public hearing from membership lists with 
respect to the membership of certain persons alleged to



14

be subversives. The Court held that there was no rele­
vance of the questions to the purpose of the investigation, 
since there was no suggestion that the Miami Branch of 
the N.A.A.C.P., or the national organization, were sub­
versive, or that they were communist dominated or influ­
enced. This again was an application of the principle that 
the information sought must be relevant to the purpose 
of the investigation. There, it was found that information 
with respect to the membership lists had no relevance to 
the subject under inquiry.

Similarly, in N.A.A.C.P. v. Alabama, 357 U. S. 449, 
2 L. Ed. 2d 1488 (1958), the State’s Attorney General 
sought the names o f N.A.A.C.P. members— “ in order to 
determine whether petitioner [N.A.A.C.P.] was conduct­
ing intrastate business in violation of the Alabama For­
eign Corporation registration statute” (2 L. Ed. 2d at 
page 1501). There the Court refused disclosure, because:

“ * * * Without intimating the slightest view upon 
the merits of these issues, we are unable to perceive 
that the disclosure of the names of petitioners rank 
and file members has a substantial bearing on either 
of them.” [i.e., the purposes for which the informa­
tion was sought].

In Bates v. Little Rock, 361 U. S. 516, 4 L. Ed. 2d 
480 (1960), the Court struck down a clause in a muni­
cipal licensing tax ordinance which required disclosure of 
membership lists o f certain organizations. Recognizing 
the purpose of the statute (i.e., taxation) to be valid, the 
Court struck down the disclosure clause only because it 
found that the names of members had no relation to the 
taxes imposed. As the Court reasoned:



15

“ It was as an adjunct of their power to impose 
occupational license taxes that the cities enacted the 
legislation here in question. * * *

“ In this record we can find no relevant correlation 
between the power of the municipalities to impose oc­
cupational license taxes and the compulsory disclosure 
and publication of the membership lists of the local 
branches of the National Association for the Ad­
vancement of Colored People. The occupational li­
cense tax ordinances of the municipalities are square­
ly aimed at reaching all the commercial, professional, 
and business occupations within the communities. 
The taxes are not, and as a matter of state law can­
not be, based on earnings or income, but upon the 
nature of the occupation or enterprise conducted.” 
(4 L. Ed. 2d at pages 486-7)

Later, in Shelton v. Tucker, 364 U. S. 479, 5 L. 
Ed. 2d 231, 235-6 (1960), the Court explained its rea­
sons for refusing to allow disclosure in the two last cited 
cases, saying:

“ This controversy is thus not of a pattern with 
such cases as National Asso. for Advancement of 
Colored People v. Alabama, 357 U. S. 449, 2 L. Ed. 
2d 1488, 78 S. Ct. 1163, and Bates v. Little Rock, 
361 U. S. 516, 4 L. Ed. 2d 480, 80 S. Ct. 412. In 
those cases the Court held that there was no sub­
stantially relevant correlation between the govern­
ment interest asserted and the State’s effort to compel 
disclosure of the membership lists involved. * * *”

The Court then held unconstitutional a statute of the 
State of Arkansas which compelled every teacher, as a 
condition of employment in a State-supported school or 
college, to file annually an affidavit listing without limi­



16

tation every organization to which he or she had belonged 
or regularly contributed within the preceding five years. 
Such annual listings were to be of public record.

The Court stated that the statute was so unlimited and 
indiscriminate in its sweep that it unconstitutionally re­
quired disclosure of associations which could have no rea­
sonable relation to an individual’s qualifications as a teach­
er. A  response to Interrogatory 1(a) can carry with it no 
disclosure of such unlimited, indiscriminate and irrelevant 
proportions.

In Louisiana ex rel. Gremillion v. N.A.A.C.P., 366 U. S. 
293, 6 L. Ed. 2d 301 (1961), also relied upon by movants, 
the Court approved a temporary order restraining en­
forcement o f a Louisiana general registration law requir­
ing the N.A.A.C.P. to list, as matters of public record, 
all its members with the Louisiana Secretary of State. 
However, the Court did not determine the validity of the 
statute. The Court said only: “ While hearings were held 
before the temporary injunction issued, the case is in a 
preliminary stage and we do not know what facts further 
hearings before the injunction becomes final may dis­
close.”  (6  L. Ed. at 304)

It is important to recall that the Commonwealth of Vir­
ginia, or any other government, has a vital interest in the 
administration of its tax laws. As was early said by Chief 
Justice Marshall in McCulloch v. Maryland, 4 Wheat. 
(17 U. S.) 316, 428, 4 L. Ed. 579, 607:

“ * * * It is admitted that the power of taxing the 
people and their property is essential to the very ex­
istence of government, and may be legitimately exer­



17

cised on the objects to which it is applicable, to the 
utmost extent to which the government may choose 
to carry it * *

Similarly, in Bates v. Little Rock, supra, relied upon by 
movants, the Court said at page 486 of 4 L. Ed. 2d:

“ It cannot be questioned that the governmental 
purpose upon which the municipalities rely is a fun­
damental one. No power is more basic to the ultimate 
purpose and function of government than is the pow­
er to tax. (Citing cases) Nor can it be doubted that 
the proper and efficient exercise o f this essential gov­
ernmental power may sometimes entail the possibility 
of encroachment upon individual freedom.” (Citing 
cases)

Moreover, governments have traditionally had unusual 
power, as a matter of necessity, to inquire into private 
matters where taxation is concerned. As was said in Hub­
bard v. Mellon, 5 Fed. 2d 764, 766 (D. C. Cir. 1925), a 
case cited with approval by the Supreme Court in Bates v. 
Little Rock, supra:

“ . . . Congress had the power to provide for the levy 
and collection of an income tax. It undoubtedly had 
authority to compel natural persons and corporations 
to make disclosures of matters of a distinctly private 
character, so that each could be dealt with justly and 
that the law might be properly enforced.”

Legislative investigation into the observance and adminis­
tration of tax laws, such as the present Committee makes,



18

are likewise traditional. See, Gauge Lumber Co. v. Hen- 
niford Co., 185 Wash. 180, 53 P. 2d 743 (1936), 103 A. 
L. R. 513, and annotation following.

A comparison o f the cases above referred to in which 
compelled disclosure has been upheld, with those wherein 
disclosure has been refused, makes clear the consideration 
upon which disclosure turns. As was stated by Mr. Jus­
tice Harlan in Shelton v. Tucker, 364 U. S. 479, 5 L. Ed. 
2d 231, 243 (dissenting opinion) :

“ The legal framework in which the issue must be 
judged is clear. The rights o f free speech and asso­
ciation embodied in the ‘liberty’ assured against state 
action by the Fourteenth Amendment (citing cases) 
is not absolute, (citing cases) Where official action 
is claimed to invade these rights, the controlling in­
quiry is whether such action is justifiable on the basis 
of a superior governmental interest to which such 
individual rights must yield. When the action com­
plained of pertains to the realm of investigation, our 
inquiry has a double aspect: first, whether the inves­
tigation relates to a legitimate governmental purpose; 
second, whether, judged in the light of that purpose, 
the questioned action has substantial relevance there­
to. (citing cases)”

We submit that the case before this Court falls squarely 
within the principle of those cases wherein compelled dis­
closure has been approved. For the Committee has clearly 
demonstrated that the information is sought in connection 
with a legitimate governmental purpose, i.e., taxation. 
Moreover, only a limited, and non-public, disclosure is 
sought. And the relevancy of the information sought is 
apparent and well understood by all concerned.



19

V.

Evidence Was Properly Excluded by the 
Lower Court

Objections have been made to the lower court’s ruling 
upon the admissibility o f certain evidence. First, the 
plaintiffs in error assert that the lower court erred in 
excluding an expression o f opinion of the Executive Sec­
retary o f the Conference that legislation providing for 
public disclosure of memberships had adversely affected 
membership and fund raising campaigns of the movants 
( F. 31). It being apparent from the record that any state­
ment with respect to the effect o f certain unrelated laws 
upon the amounts received by the movant organizations 
would merely be a conclusion on the part of the witness 
as to cause and effect, the lower court properly excluded, 
as neither material nor competent, such statement of opin­
ion. Whether the so-called “detrimental effect” upon fund 
raising activities resulted from legislation was clearly a 
matter o f speculation.

Secondly, the plaintiffs in error object to the lower 
court’s having excluded hearsay testimony that persons 
would suffer reprisals if identified publicly with the N.A. 
A.C.P. or the Fund. Initially we say that disclosures to 
the Committee are not divulged except where violations 
o f the law appear. Further, the Fund’s own argument 
betrays the weakness o f its point. As it says in its brief:

“ In excluding this evidence as irrelevant or as 
hearsay, the court rejected the only means by which 
the plaintiff in error could demonstrate the adverse



20

effect of disclosure of the information sought on both 
the property rights o f the organization and the asso- 
ciational rights o f its contributors.” (Emphasis ours) 
(F . 32)

It will be recalled that the plaintiffs in error produced 
as witnesses two o f their Virginia officials (one a dentist 
of the City of Fredericksburg) and one official of national 
prominence. Despite their public notoriety, none of these 
witnesses could testify as to having personally suffered 
any economic or other harm because o f their association 
with the movants. Instead, they sought to testify only as 
to what had been told them by others. Such testimony 
was obviously hearsay and was properly excluded.

The movants further assert that there is one “ hearsay 
rule” for ordinary cases and another for those cases where 
constitutional principles are asserted (F. 32, 33). W e sub­
mit that the law makes no such distinction.

In both N.A-.A.C.P. v. Alabama, supra, and Bates v. 
Little Rock, supra, relied upon by the Fund as establish­
ing this anomalous proposition, there was direct evidence 
that public identification with the movants had resulted 
in reprisals.

Finally, the movants object to the trial court’s refusal 
to admit in evidence their tendered Exhibits A  and B 
(N. 26, 27, F. 41). Exhibit A  was the report o f a com­
mittee created by Chapter 34 o f the Acts o f Assembly of 
1956, Extra Session, which committee had the same name 
as the defendant in error. That committee ceased to exist 
by the terms of its authorizing statute upon the convening 
of the 1958 session o f the General Assembly. Exhibit B was 
the report of the Committee on Law Reform and Racial 
Activities created by Chapter 37 o f the Acts o f Assembly,



21

1956 Extra Session. That committee was abolished by 
Chapter 373 of the Acts o f Assembly, 1958. Thus, neither 
o f the committees whose reports were offered as exhibits 
existed at the time o f the trial in this case. Moreover their 
reports did not relate in any respect to the activities o f the 
present Committee. Clearly, they were not relevant under 
any theory of the case.

There is another, and compelling, reason why these 
exhibits were properly refused. Each of the documents 
was offered in an effort to show that the motives o f the 
Committee in issuing the present interrogatories were 
improper (N . 27, F. 42). As we show elsewhere in this 
brief, no inquiry into the motives of the General Assem­
bly in creating the Committee, or o f the Committee in 
making its investigations, may judicially be made.

V I.

No Inquiry May Be Made Into Motives Prompting the
Committee’s Creation, Nor Motives Prompting Its
Investigation.

The Fund devotes nine pages (F. 33-41), and the N.A. 
A.C.P. six pages (N . 20-25), to an attack upon the mo­
tives of the Committee and of the General Assembly in 
creating it. That such motives are not a proper subject 
for judicial inquiry, and cannot be used as a basis for 
attack, either upon a committee’s action or the statute cre­
ating it, is a principle long settled.

This Court has often held that the motives of the Gen­
eral Assembly are not relevant in determining the consti­
tutionality of a statute. See Shenandoah Lime Company 
v. Governor, 115 Va. 865,80S. E. 753 (1914); Telephone



22

Company v. Nezuport News, 196 Va. 627, 85 S. E. 2d 
345 (1955); N.A.A.C.P. v. Committee, 199 Va. 665, 678, 
101 S. E. 2d 631 (1958). The same doctrine was long 
ago recognized, and has been consistently followed, by 
the Supreme Court o f the United States. In Fletcher v. 
Peck, 6 Cranch. 87, 131, 3 L. Ed. 162, 176 (1809), an 
act o f the Georgia legislature was attacked on the ground 
that it had been secured by wholesale bribery. Chief Jus­
tice Marshall, expressing the Court’s decision that it 
should not inquire into the motives of the legislature, 
said:

“ . . . If the title be plainly deduced from a legisla­
tive act, which the legislature might constitutionally 
pass, if the act be clothed with all the requisite forms 
o f a law, a court, sitting as a court o f law, cannot sus­
tain a suit brought by one individual against another 
founded on the allegation that the act is a nullity, in 
consequence o f the impure motives which influenced 
certain members o f the legislature which passed the 
law.”

Later, in Hamilton v. Kentucky Distilleries and W . Co., 
251 U. S. 146, 161, 64 L. Ed. 194, 202 (1919), Mr. Jus­
tice Brandeis said:

“ No principle o f our constitutional law is more 
firmly established than that this court may not, in 
passing upon the validity of a statute, inquire into the 
motives of Congress (citing cases). Nor may the 
court inquire into the wisdom of the legislation (cit­
ing cases). Nor may it pass upon the necessity for 
the exercise o f a power possessed, since the possible 
abuse o f a power is not an argument against its exist­
ence.”



23

Equally well established is the principle that a court 
may not inquire into the motives o f a committee or its 
individual members in a court test o f the validity o f their 
actions. In Tenney v. Brand hove, 341 U. S. 367, 377, 95 L. 
Ed. 1019, 1027 (1951), Brandhove brought an action 
against a California legislative committee engaged in 
investigation o f communist activities. He alleged that 
an investigative session, at which he testified, was de­
signed to intimidate, silence and deter him from the exer­
cise o f the his rights of “ freedom of speech.” Rejecting 
this contention, the Court said:

<<* * * The holding 0f fhis Court in Fletcher v. 
Peck * * * that it was not consonant with our scheme 
of government for a court to inquire into the motives 
o f legislators, has remained unquestioned. * * * 

“ Investigations, whether by standing or special 
committees, are an established part of representa­
tive government. Legislative committees have been 
charged with losing sight of their duty of disinter­
estedness. In times of political passion, dishonest or 
vindictive motives are readily attributed to legislative 
conduct and as readily believed. Courts are not the 
place for such controversies. Self-discipline and the 
voters must be the ultimate reliance for discouraging 
or correcting such abuses.”

See to the same effect, Watkins v. United States, 354 U. 
S. 178, 1 L. Ed. 2d 1273, 1291 (1957); Goesaert v. 
Cleary, 335 U. S. 464, 466, 93 L. Ed. 163, 166 (1948); 
and Daniel v. Family Security Life Insurance Company, 
336 U. S. 220, 224, 93 L. Ed. 632, 636 (1949).



24

V II.

Other Matters Advanced by the Plaintiffs in Error

The plaintiffs in error advance so many diverse theories 
in an effort to thwart the Committee’s Interrogatories 
that to respond to each at length would require a brief 
o f unjustifiable length. However, we will here reply as 
briefly and concisely as we may to each o f those theories.

(a)
Equal Protection

The Fund asserts that Section 30-42(b ) was enacted 
to single out the plaintiffs in error for special investiga­
tion. Such is not the case.

Section 30-42(b ) directs investigation with respect to 
all who promote or support litigation to which they are 
not parties. Known to be included within this category 
are labor unions, trade associations, groups such as the 
American Civil Liberties Union, and others.

Moreover, movants’ own exhibit (Exhibit C, pages 8 
and 9) shows that this Committee has investigated other 
groups having no connection with either the movants or 
the colored race. And this Court has previously found 
that the Committee has investigated, not only the N.A.A. 
C.P. and its affiliates, but other “unrelated persons and 
organizations.”  See, N.A.A.C.P. v. Committee, 201 Va. 
890, 894, 114 S. E. 2d 721 (1960).

(b )
Constitutionality of Section 58-84.1

The Fund now asserts that Section 58-84.1, denying 
tax deductibility of contributions to groups supporting 
litigation, is unconstitutional. No such argument was



25

made in the lower court, nor was error so assigned on 
this appeal. Thus, the issue may not now be raised. Rules 
o f Court 5:1, Section 4.

Despite this, we point out that their argument is clearly 
frivolous. If denial of a tax deduction for contributions 
to any organization which operates within areas o f “ free 
speech” is invalid, as they assert, then the long established 
denial, under both Federal and State law, of such deduc­
tions for contributions to groups disseminating propa­
ganda would likewise be unconstitutional (see Section 58- 
81 (m ) (2 ) of the Code of Virginia). It is plain that Sec­
tion 58-84.1 is merely a legislative recognition of the fact 
that groups so supporting litigation are not “ charitable” 
in nature, as is contemplated by Section 58-81 (m ) (2 ).

(c)

T he A ttorney General’s Representations 
in Harrison v. N.A.A.C.P.

In Harrison v. N.A.A.C.P., 360 U. S. 167, 3 L. Ed. 2d 
1152 (1959), the Attorney General of Virginia represent­
ed to the Supreme Court o f the United States that he 
would not enforce Chapters 31, 32, 33 or 36 of the Acts 
o f Assembly, 1956 Extra Session, until they had been 
construed by the courts of Virginia. This representation, 
says the Fund (F. 47), precludes the Committee from 
pursuing its investigations under Chapter 373 o f the Acts 
of Assembly o f 1958. It is obvious that the Attorney 
General, an officer of an executive branch of government, 
could not and would not make representations purporting 
to bind a legislative body. Aside from this, a comparison 
o f the statute authorizing the Committee’s investigation 
with those statutes involved in N.A.A.C.P. v. Harrison,



26

supra, makes clear that no representations affecting this 
Committee were intended; and this so because the Com­
mittee is directed to investigate with respect to all laws 
relating to the administration of justice, including the 
common law. Suspending the enforcement or considera­
tion of those laws could hardly have been contemplated.

C O N C LU SIO N

As earlier mentioned, the Fund has answered Interrog­
atories 1 (b ), 2 (a ) and 2 (b ), and is contesting only its 
duty to answer Interrogatory 1 (a ). The N.A.A.C.P. and 
the Conference, on the other hand, have filed no answers 
whatever.

It is plain that Interrogatories 1 (b ), 2 (a ) and 2 (b ) 
(and we think also 1 (a ) ) inquire into the activities o f the 
plaintiffs in error in Virginia. The N.A.A.C.P. has earlier 
conceded its obligation to inform of its activities in any 
given State. Thus, in N.A.A.C.P. v. Alabama, 357 U. S. 
449, 2 L. Ed. 2d 1488, 1500 (1958), the N.A.A.C.P. ad­
mitted that they were entitled to no special immunity 
respecting their activities within a State, and that they 
had no right to disregard a State’s laws. This concession 
was approved by the Supreme Court o f the United States 
when it said:

“ It is important to bear in mind that petitioner 
[N A A C P] asserts no right to absolute immunity 
from state investigation, and no right to disregard 
Alabama’s laws. As shown by its substantial com­
pliance with the production order, petitioner does not 
deny Alabama’s right to obtain from it such infor­
mation as the State desires concerning the pur­
poses o f the Association and its activities within the 
State.”  (Emphasis ours)



27

In this proceeding, the plaintiffs in error (most par­
ticularly the N.A.A.C.P. and the Conference) take the 
position that the Commonwealth of Virginia has no right 
to inquire into either their own or their contributors’ fiscal 
affairs. Having taken the position before the Supreme 
Court in the Alabama case that a State had a right “ to 
obtain from it (N .A .A .C .P.) such information as the 
State may desire concerning * * * its activities within 
the State,” they may not now take the inconsistent posi­
tion that a duly created Committee of the General Assem­
bly o f Virginia has no such right. See, Burch v. Grace 
Street Bldg. Corp., 168 Va. 329, 340, 191 S. E. 672 
(1937).

We submit that the decision of the Hustings Court of 
the City of Richmond was plainly right and should be 
affirmed.

W e certify that copies of this brief were duly mailed 
to all other counsel of record on the day on which the 
originals were filed with the Clerk o f this Court.

Respectfully submitted,

Committee on Offenses A gainst 
T he A dministration of Justice

Hon. Robert Y. Button 
Attorney General o f Virginia 
Supreme Court of Appeals Building 
Richmond, Virginia

W illiam H. K ing 
915 Mutual Building 
Richmond, Virginia

Counsel for Defendant in Error

June 12,1963



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