In re McLain

California Court of Appeal Aug 30, 1950 No. Crim. No. 4510Published

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Holding. The court held that an affidavit and order for constructive contempt based on a failure to produce records are fatally defective if they fail to affirmatively set forth the specific materiality and pertinency of the requested documents.

Issues

Whether an affidavit and order for constructive contempt must affirmatively state the materiality and pertinency of records sought by a legislative committee.
Whether the superior court had jurisdiction to adjudge the petitioner in contempt based on an affidavit that stated only conclusions regarding materiality.

Disposition. Writ granted; petitioner discharged.

Quotations verified verbatim against the opinion

“A witness who is otherwise orderly and respectful cannot be adjudged guilty of contempt unless the order affirmatively sets forth the materiality and pertinency of the books and papers called for.”

“The affidavit states conclusions; and the only statement of materiality in the order is by reference to the affidavit.”

THE COURT. During the 1949 session of the California Legislature a committee named “The Senate Interim Committee on Social Welfare” was created by Senate resolution.

Pursuant to its powers of investigation, the committee served upon Citizens Committee for Old Age Pensions, a corporation, and George H. McLain, as chairman of its board of trustees, a subpoena duces tecum, calling for the production of the following books, papers, and documents:

[275](1) For the period January 1, 1948, to date the book or ledger in which is entered the funds received by the Citizens Committee for Old Age Pensions.

(2) For the period January 1, 1948, to date the columnar journal in which all checks and disbursements of the Citizens Committee for Old Age Pensions were listed.

(3) For the period January 1, 1948, to date all books and ledgers containing the data which the above described books and ledgers contained; if the above books and ledgers have been replaced by others, due to change in accounting procedures or for any other cause.

(4) All vouchers supporting expenditures from the petty cash fund or cash imprest fund of the Citizens Committee for Old Age Pensions for the period January 1, 1948, to date.

(5) The minutes of the meetings of the Board of Directors of the Citizens Committee for Old Age Pensions for the period from January 1, 1948, to date.

Mr. McLain appeared before the committee, in response to the subpoena; but refused, on advice of counsel, to answer questions or to produce the records called for.

Upon representation to the superior court by counsel for the committee, an order was made directing Mr. McLain to produce the records. (Gov. Code, § 9408.) In this order the records are described as stated in this opinion, but no statement is made as to their materiality or pertinency. Section 9405 of the Government Code declares a contempt to refuse to produce under subpoena any material and proper books, papers and documents. (Emphasis added.)

Mr. McLain again appeared before the committee and again refused to produce the records.

Thereupon an affidavit was filed in the superior court, setting forth the facts above stated, and praying that Mr. McLain be adjudged guilty of contempt. This affidavit makes the following averments with respect to materiality and pertinency of the records:

In re McLain

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