UPHAUS v. WYMAN, ATTORNEY GENERAL OF NEW HAMPSHIRE.
No. 336.
Decided November 14, 1960.
Louis Lusky, Grenville Clark, Marvin H. Morse, Dudley W. Orr, Boyal W. France, Hugh H. Bournes and Leonard B. Boudin for appellant.
Louis C. Wyman, Attorney General of New Hampshire, appellee, pro se.
Per Curiam.
In view of the Court’s decision in Uphaus v. Wyman, 360 U. S. 72, rehearing denied, 361 U. S. 856, the motion to dismiss is granted and the appeal herein is dismissed for want of jurisdiction, in that the judgment sought to be reviewed is based on a non-federal ground.
Mr. Justice Brennan.
The New Hampshire Supreme Court has held in this proceeding that the New Hampshire Legislature still wanted Dr. Uphaus’ answers on December 14, 1959, notwithstanding the omission from Laws 1957, c. 178, of the provision of Laws 1955, cc. 340 and 197, authorizing the Attorney General “to determine whether subversive persons . . . are presently located within this state,” Wyman v. Uphaus, 102 N. H. 461, 159 A. 2d 160; on denial of motion for bail, 102 N. H. 517, 162 A. 2d 611. We are bound by the highest state court’s construction of the pertinent New Hampshire statutes. We must therefore consider the substantiality of the federal constitutional questions presented on this appeal on the basis of that construction and not upon the premise urged by Dr. Uphaus that the 1957 statute shows that the legislature-on December 14, 1959, no longer wanted him to produce the list of names. In consequence, while I remain of the view that the Court in Uphaus v. Wyman, 360 U. S. 72, incorrectly sustained the previous order of civil contempt made against Dr. Uphaus, see dissent at page 82, that holding, while it stands, also sustains the order challenged on this appeal. Solely under compulsion of that decision, I think that the appeal must be dismissed as not presenting a substantial federal question.
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