No. 3934 | N.H. | May 11, 1950
To the Honorable Senate:
That Congress and State Legislatures have broad and extensive powers of investigation is no longer open to serious doubt. While it was questioned at one time whether Congress could act as the grand inquest of the hation (Kilbourn v. Thompson, 103 U.S. 168" court="SCOTUS" date_filed="1881-02-28" href="https://app.midpage.ai/document/kilbourn-v-thompson-90311?utm_source=webapp" opinion_id="90311">103 U. S. 168) that view is not now law. McGrain v. Daugherty, 273 U.S. 135" court="SCOTUS" date_filed="1927-01-17" href="https://app.midpage.ai/document/mcgrain-v-daugherty-100996?utm_source=webapp" opinion_id="100996">273 U. S. 135; Sinclair v. United States, 279 U.S. 263" court="SCOTUS" date_filed="1929-04-08" href="https://app.midpage.ai/document/sinclair-v-united-states-101414?utm_source=webapp" opinion_id="101414">279 U. S. 263; Jurney v. MacCracken, 294 U.S. 125" court="SCOTUS" date_filed="1935-02-04" href="https://app.midpage.ai/document/jurney-v-maccracken-102374?utm_source=webapp" opinion_id="102374">294 U. S. 125. In order to legislate it is necessary to be informed and investigation is usually a prerequisite to adequate information. The same thought in another context was expressed by Brandéis, J. in Burns Baking Co. v. Bryan, 264 U.S. 504" court="SCOTUS" date_filed="1924-04-21" href="https://app.midpage.ai/document/jay-burns-baking-co-v-bryan-100401?utm_source=webapp" opinion_id="100401">264 U. S. 504, 520: “Knowledge is essential to understanding; and should precede judging.” Not only may legislative bodies investigate but they have adequate power to make the investigation effective. “The state courts quite generally have held that the power to legislate carries with it by necessary implication ample authority to obtain information needed in the rightful exercise of that power, and to employ compulsory process for the purpose.” McGrain v. Daugherty, supra, 165.
Your inquiry presents the question of how far legislative investigation may be extended to interrogation of grand jurors. Before entering upon their duties, grand jurors are obliged to take the following oath: “. . . the state’s counsel, your fellows’ and your own you shall keep secret.” R. L., c. 427, s. 4. The requirement of both common and statutory law has been stated as follows: “It has long been the policy of the law, in furtherance of justice, that the investigations and deliberations of a grand jury should be conducted in secret, and that for most intents and purposes, all its proceedings should be legally sealed against divulgence.” 127 A. L. R. 272, 273. “It [the oath of grand jurors] is a lasting obligation binding all who have served as grand jurors.” United States v. American Medical Ass’n, 26 F. Supp. 429" court="D.D.C." date_filed="1939-01-31" href="https://app.midpage.ai/document/united-states-v-american-medical-assn-2593512?utm_source=webapp" opinion_id="2593512">26 F. Supp. 429, 430.
The legislative power to investigate is not absolute. Emery’s Case, 107 Mass. 172" court="Mass." date_filed="1871-03-15" href="https://app.midpage.ai/document/emerys-case-6416460?utm_source=webapp" opinion_id="6416460">107 Mass. 172. It is not considered necessary in aid of the investigatory power that grand jurors should violate their oath of secrecy (R. L., c. 427, s. 4) by voluntary or compulsory disclosure of their votes, deliberations or opinions expressed in the grand jury session. 110 A. L. R. 1023. Consequently to seek the “opinion” of certain grand jurors or to inquire “why they felt” as they did about certain
To the extent that your inquiry envisions release of jurors from their oath of secrecy to permit disclosure of their opinions of the guilt or innocence of persons whose conduct was under consideration by them, we are constrained to advise that such a release may not be given. Inquiries as to such matters, if permissible at all, are the concern of the judicial rather than the legislative branch of the government. The answer to part (c) of the resolution and question is “no.”
To the extent that the proposed investigation would relate to any need for investigation of the Public Service Commission, the judicial nature of the inquiry is not so plain. Inquiry might in some aspects be in aid of prospective legislation. Yet that the public interest requires release from the oath in this regard is not apparent. If the grand jurors reached an opinion on the subject as a result of their proceedings, it is not perceived that such an opinion would materially aid the legislators. The sources of the grand jury’s information are readily available to the Legislature. The conclusions of the grand jurors on the topic mentioned cannot be considered so far essential to the Senate’s investigation as to justify disregard of the requirement of secrecy, or to overbalance the public interest which occasions it.
Paragraph (b) of your inquiry refers to “matters of alleged irregularities occurring before the Grand Jury which are alleged to have impeded justice.” The nature of the “alleged irregularities” is not disclosed, but the language used suggests a reference to conduct upon the part of persons other than the jurors themselves. How such conduct may have impeded justice is not suggested. It is well recognized that disclosure of irregularities may be permitted in the interests of justice. Such disclosure may not extend to the grand jurors’ votes,
If these two questions are limited to matters stated in the motion, as in part (c) of the question, it is clear that the testimony of the grand jurors relating thereto should not be permitted. If somehow parts (a) and (b) are separate and distinct and would not involve disclosures of the grand jurors’ votes, opinions and deliberations, the resolution discloses no overriding public interest in furthering pending or contemplated legislation which would warrant a release of the grand jurors from the obligation of secrecy imposed by their oath. We accordingly return a negative answer to the question in its entirety.
May 11, 1950.