Petition for Writ of Certiorari — Miranda v. Commissioner of Investigation of the State of New York

JAMES R OR ManitG, Cler

. Supreme Gourt ‘at the Rnited States

; _—_ Term, 1966 © aA

° : ‘ | ; ~ sk ie ee Se eee LN Pee

No. 89 3 " ; . : fi f 2

MicHeLe Mrmanpa, : |

| | .- Petitioner, ©

—against— ;

. : a é we \ ‘

“Tre ComMIssiON oF INVESTIGATION OF THE STaTE oF New es

York, By Myues J. Lane, CuarnMan, JAcos GruMet, Joun

W.. Recay, JR., GoopMan A, SaRACHAN, Commissioners

Respondent.

Oe We pee ‘ e:

PETITION FOR’ WRIT OF CERTIORARI TO THE ”

. COURT OF APPEALS OF THE STATE OF -

NEW YORK \ :

. |. Appanam H. Bropsxy

: 111 Broadway

New York 6, New York -

|W Hanis B. Sreinpens : ; .

25 Broad Street - sore .

_ New Yerk 4, New York

, cua! sabia for Petitioner

eo B. ‘avebreee, | |

af YK Leo H. Hrkscnu, JR.,

of Counsel’ 7

a ) Came Boer Inc., 82 Beekman St., N. Y.~-BEekman 3-2005

} eo . : z 7 i . 2 ; De .

: ‘ | ,"

TABLE OF CONTENTS

4. The overall effects of throceedings vio-

late dne process

and constitute cruel and

PAGE

_Perinios errr vrrrer Keane Pec cecarccnccecaccsscess nee

A. The Outeiens IE Anat udd kcnehaws id ecaen 1

. B. Grounds on Which J urisdiction cf This Court

Is. Invoked [MURR eOCe ARS a ue Raa kaa : 3

ey . 7

“4G. Questions Presented Pe Cakben tabudseeeeks hae ee

D. Constitutional Provision and Statutes Inv olved 4.

E. Statement of Facts ° Re ee ot : 3

7 Timely Raising of Federal Questions’ Pree

H. Argument of Reasons Relied Up6n in Support

of. Petitjon . 4, CER ERE OR besetedansars 9

1. W idespread applicability of problems i in-

. oS volved RES Ses Pres Cre 9

2. Petitidner’s rights ender’ the Fifth

: Amendnient were infringed ............

3. The procedure violated due process of law 15

unusual punishment ..... Se OE ae

CI 65 Wea Doe aGneesac quacks Wuenens ore 21

APPENDIX BF oth POR a Ae Ta Ee * 22

’ : ‘©

Opinion i in Appellate SOMO 6 nisi cewane oRiiaas - +22

x 4 ;

7 Constitutional, Provisions’ fan Wacsn sd en ganeeee 37

“‘Stattitoex_ Provisions Peake ads tadag 4 exes 38

_. New York Civil Practice . i ec 38 |

/ New York Laws of 1958, Chapter De chiwncaas 40

; New York Pomal Baw %62.2..6.02.0;5505..0.. 41

in ; Js

y) | f &

_-Bartkds v. Llinois, — U, S. — (27 Law Week 4233) 15

Brown v. United States (1959) —'U. S.—, 3 L. Ed: 2

iy casa neve vecscacw WAM

Brown v. Walker (1896) 161 U.S, 591 .......2.... 13 ;

' Chandler v. Fretag (1954) 348 U.S.3......... ae

Coe v.. Armour Fertilizer Works (1915). 237 U. 8. bs

BR eS Meee RED SARE eee 18

Comm. v. Rhine (1957, Ky.) 305 S.W. 2d 301......2 © 13

Cooke v. United States (1925) 267 U. S. d17........ 16,18 | FF

Feldman v. United States (1944) 322 U. 8. 487 « Biers |

Hale v. Henkel (1906) 201 U.S, 43 ..0.......00000. +, 2

‘Hudgings, Ex Parte (1919) 249 U. S. 378 .:..... a

Jack v. Kansas (1905) 199 U; 8. 372 ene, 12,13

-King of the Two Sicilies y. Wilcox, 1 Sim. (n. 8.)

- Oliver, Re (1948) 333 U. 8 Rererrer ae “a

Pople v. Den Uy! (1947) 318 Mich. 645 ttn SN

os e

ii ; )

a t = : ;

a ee AUTHORITIES | CITED.

sei ak pce ae, PAGE’

Cases :

Abbatte v. United. States, — U.S. — (37 Law. Week ee

> 4295) ..... Spe Oh ee iene ae

Ballman v. Fagin (1906) 200 U. 8.186 ...... errr 11,13 q

Barnes, Matter of (1912) 204 N. Y. 108 ............°.5 160-49

Knapp ¥. Schweitzer (1958) 357 U.S. $71.11, 12, 13, 14,18

_ 301, 61 Eng. Rep. 116 (Ch. 1851) ......5....... oe

Lanta ©: Blackburn (1954, Fla.) 74 So. od DBY

Powell v. Alabama (1932) 287, U.S. 45 RIO ie

Queen y, aor (1861) 1 B. & S. 211. Senet eeeeecees *

United States Constitution; .

First Report to the New York Governor and Legisl

, goon —PAGE

State. ex rel. Doran v. Tecan (1949) 215 La. 151; es

a 2 eens Lcpcaddtieandeeihs ebéusa ses ; 2B

State v, Dominguez (1955) 228 La. 284,82S0.2d12. 13° —

Sweezey v. New ‘Hampshire (1957) 354 U.S. 234 . 19

Ullmann v. United: States (1956) 350 U. g, 422. =

- United-States v. Di Carlo (D.C. N.D. Ohio E.D. 1952) .

SOO Se Ge vik kc Pishas ce ceceaesas tt, 2

‘United States v. McRae, L. R. 3 Ch. 79 (1867) , ne

Waited States v. Murdogk (1931) 384.U. S. 141 ..... 11,12

United States v. Saline Bank (1828) 1 Pet..100°.... 11,13.

Valenti-v, McCloskey, N.Y.L.J. March 30, 1959, p. 11 20

Watkins v. United States (1957) 354 U.S. 178 ..... : =

Yates v. United States (1958) 356 U.S. a TRE 20

Statutes ve a e

_ General Business Law, Section 340 :.4..........4 5-6 a

~~ York Civil Practice Aet, Seetion 406° inecce 15, 16 ,

tea York Judiciary Law, See. "751 cisiscicenae, oe

New Yorg' Laws of 1958, Chapter 989— . 7

Section, 2, Subdivisions 1,5 and7 .......4,5, 13, 19,20

New York Penal Law, Section —_, Subdivisions 1

OE De kbc keds cadeess Piece tee eeeeees Pay? arrowed ae

Fourteenth Amendment »..........2........ a

ee Bian esa

M iscellaneous

‘ture, Feb. 1959.(N. Y. Leg. Doe. [1959].No. 102 .

Federal Rules of Criminal Procedure

‘Supreme ane at ee Anited States

° % _ October pave 1968

> cme.

MicHELE Mmanpa, :

Petitioner,

—against—

Tue Commission oF INVESTIGATION OF THE State oF NEW

’ York, sy Myies J. Lane, CHamman, Jacos Grumet, Jonny

_W. Reoan, Jz., Goopman A. SanacHan, Commissionefs,

\

Respondent.

yX

. .

PETITION FOR WRIT OF CERTIORARI TO THE.

COURT OF APPEALS OF THE STATE OF

_ NEW YORK

To. the Honorable, the Chief Justice of the United States —

and the Associate Justices of the Supreme Court of the

United States:

A. The Opinions Below.

No opinion was weitéet at esata Term of the Supreme’

Court of the State of New York. The opinion of the Ap-

pellate Division of the Supreme Court of the State of New.

York,. First Depar tment, is reported in 7-A. D. 2d 48, 180 -

N. Y. S.°2d 496. Said opinion. is appended hereto. The

ss 8 fe

ra}

e-. S

to-

Court of Anita of the State of New York rendered no

optnion, but stated:

‘‘Orders affirmed (Knapp. v. Schweitzer, 357 U. sg

371, 380- 381). No opinion, all concur,’’

The foregoing i is not yet reported officiaily or unofficially,

but appears in the: New Y ork Law Journal, March 17, 1959,

at. page 10:

By order dated “April 9, 1959, the ‘Court of Appeals

granted a motion by -petitioner to amend its remittitur as \

follows:

“Return of the fomittiter requested. ‘end, when re-

turned, it wiil be amended by adding thereto ‘the

¢ following: Paes

‘Upon the sailetin herein on, behalf of the sails

there were presented; and necessarily passed upon

the following. questions, Viz: ry

eS ‘Whether. the procedure : whereby ‘the appellants

were committed violated the due process clause of

the Fourteenth Amendment. to the United ee

| Constitution ;

‘20° Whether the Shite and viahts of’ the sani ms

lants not to be compelled to incriminate themselves

under .the Fifth Amendment to the United. States

Constitution; were improperly: infringed ; and

: (3.° Whether the over-all. effects of the ‘proveddings wa

violated the due process clause’ of the Fourteenth

' Amendment to the United States Constitution and‘ ~”

the Fifth, and Eighth Amendments . to the United |

States Constitution. a :

‘This court held that the rights and sii of

these appellants under the United States Constitu-

_ tion were nof infringéd-or violated.’ ”’

Pe

.

a

| :

This deciaion has not yet been reported, officially or un-

officially, but appears in the New York Journal of susie |

13, 1959,’at page 12.

B. Grounds on Which oriadltiton of

_ This Court is Inyoked:

1. The pares of the Court of Appeals’ of the State. of

er New York sought to be reviewed was made and entered on

March 13, 1959.

i —

2. There was no order respecting a rehearing or grant.

> ing an extension of time to file this petition.

of The sia: provision believed to confer jurisdie-

tion on this.Court.to review the.order ii. question by. writ

of certiorari is 28 U.S. C. Section 1257 (3). :

x Questions P Presented.

1. ‘Were the’ orivilenia and sights of ‘tho petitioner not

to be compelled to incriminate himself, under the Fifth.

Amendment to the United States Constitution, improperly.

infringed by requirnig him to answer questions which might

’ incriminate him for Federal crimes, -withut any grant of

immunity as to such crjmes,- where he was currently the

. subject of Federal investigations, where a Federal inves-

tigator. was present at his questioning before the State |

‘Commission of Investigation, and where such State Com-

mission was charged by statute with the duty of investi-

gating crimes against the Federal government and report-

ing evidence thereof to the proper prosecuting authorities?

. 6.

°

ae

ur

2, Was the ait due process of. law i in vio: .

- lation of the due proeess qfause “of the Fourteenth Amend-

‘ment to the United States Constitution by reason of the _

*“ faet that he did not receive reasofiable opportunity to.

. oppose, at’ Special ‘Term of the Supreme Court of New-

York, the application to commit him until he should #iisw er

interrogatories put-by the State Comnifssion of ‘Inv esti- ‘

fationt: oh ate ‘ Shad ge i

*. Did re overall effects of the dececittias a in ‘the Now

York State Supreme Court violate the ‘due process elansé | |

of the Fourteenth Amendment to the United States Con- rks

‘stitution, and the Fifth and. Kighth Amendments ‘to the

“ United States Constitution, in that the. petitioner has been:

“ordered incarcerated until - he answers, “truthfully, and “8

- . nee anaes ee os R + ;

~ : Pa 4 yey - tT] els

y-

ee

; responsively”’ ; questions which may incriminate him under. we

_ Federal law, without being poorded immunity. in the Fed- “og

eral jurisdiction? -

4.

i? oF

‘fe

Bs -D. Constitutional Provisions and Statutes Involved. 3

The Constitutiorial provisions and sakes involv ed ‘are?

1. ‘The Fifth, ‘Eighth and Fourteenth Amendments to the .

United States Cagigtationy |

"., “2. Section 406, New. York Civil Practieé Act. :

3. New York Laws of 1958, Chapter 989, ‘Section 2 | Sub- :

divisions 1, 5 and 7, and Section 7;

4. New York: Penal Law, Section mary Subdivisions ore

and 27 ay : rs ee!

x ‘

-. 2 the foregoing a are re forth inthe Appendix to this

Na ‘petition. at * eke |

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D6 aE Non te LO eS IP ENR nts

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= Statement of Facts.

é 7

The Ciiansnddaaiis of Inv estigation, the respondent herein, ©

is a body created by Chapter 989 of the Laws of New York, .

; | 1958:¢New York Unconsolidaped Laws, Sections 7051- 7057): =;

The Sistantzaipis is empowered to investigate, ‘among.

‘other’ things, “Any matter concerning the public peace,

_ public safety and public justice”’ (id., §2, Subdivi ision =

“The Commission i is specifically directed by statute to ‘‘c

'. operate with departments and officers, of oh of States

73 BOY ninent in. the investigation, of violations of-the fed-.

= within this state’? ( id’, §2, Subdivision 5).

“This ‘fartigg enacted that “Whenever it shall appear to

“ the’ commission that there is cause for the prosecution fora.

-erime, . .-. the commission shall refer the evidence of -

such crime , . . to the. officials authorizéd to conduet the

_ Prosecution PE te Aid., §2, Subdivision 7). |

Finally, Section 7 of Chapter ‘989 provides that immonity eal

from prostcution [by New York State only, of course] shall

, be accorded to any witness ‘who claims his privilege, . but

who i is nevertheless required to ‘eave.

Acting pursuant to the powers mies to it by Chapter |

989 of the Laws of 1958, the Gémmission instituted an in-

Eee vestigation of a now-famous gathering which took. place at

= Apalachin, New York, on “November. 14, 1957. Ft alleged

that many of the -persons there present had criminal rec-

ords (72-3, 386-7).°

The Chairman stated that the Commission intended ‘‘to § ~

find out whether the crimes of conspiracy, violation of See-

”

se Rererences i in cacenihania, less othefiise indicated are to folios

of the printed record on ap in the State Court.

ete

2 -

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ae

/ tion 340 ‘of, the General Business Law, which pertains to |

monopoly and restraint of trade, bribery of public officials .

or ‘any other crimes were committed or amin at this

meeting” ’ (485).

~The petitioner was serv ediwith a subpoena by the Com-

-mpission on, August 4,-1958 (896) ; he appeared on: August

15, 1958 (id.); and was asked a series of questions as to.

what transpired at Apalachin (601-14); he refused to an-

swer them on the grounds that he might thereby incrimi-

_hate himself (id. ).

.The Commission proceeded to accord him immunity from ©

State prosecution pursuant to-its powers under the State

statute (614-21). Through counsel and personally, he ob- —

jected on the grounds of his Constitutional privilege’ against

self-incrimination, pointing out various matters which are

dealt with in Section F, infra (626-63).

Petitioner’s questioning before the Commission was con-

cluded at about noon on August bb, 1958, when he was di-

rected to return at 2 P.M. of the same day (663- 5). At that

time he was served with an order to show cause returtiable

**forthwith”’ (58-62, 890-1). “4 ‘s rs

The hearing commenced at 2 :38 P. -M. (891). ‘An apptica-

tion for a reasonable adjournment to afford counsel an

- opportunity to submit. affswering affidavits was denied

(891). The transcript of the testimony before the Com-

mission, which was apparentiy typed during the luncheon

*

* The order to show cause and moving afédavit applicable to this

" spetitioner is not-printed in the record, but is ‘similar to one which

ti

appears therein ; by stipulation, this order to show cause was treated

as/\he- prototype in all of the companion cases, of which this. peti-

“4 er” Ss was one (37-42).

i

7

recess, was received i in evidence (894-5), and the Justice

a Special Term proceeded immediately to find that peti-

tioner had, ‘‘ without reasonable cause’’, refused to answer

legal and pertinent questions which were set forth in the.

transcript, and accordingly he directed the witness’ imme- .

diate incarceration, to continue until such time as he should

.. answer, ‘‘truthfully and responsively’’, the questions which

he had refused to answer at the hearing before the Com-

mission (52q-57, 895-7). .

We note that the moving affidavit did not set forth the

questions which petitioner had refused to answer, but

merely stated that ‘‘yarious material and relevant ques-

tions concerning the organization, participants, purposes

and diserssions at the Apalachin Meeting were directed to

the witne.<’’, and that he had “refused to answer many -

pertinent. omntions put to him. . .’’ (78-9): No transcript —

of the. testimony was annexed to the affidavit, but the affi-

davit stated that copies of such transcript would be sub-

_ mitted to the court and delivered to the witness (83). While

' the record does show that the transcript was received in

- evidence (894-5), the record does not disclose that any

copy was ever’ delivered to the petitioner or his counsel,

who noted that he was appearing specially (890-4)..

Pursuant to- the order at Special Term, petitioner has —

- been continuously incarcerated, without bail, since August

15, 1958.

e 3 , . 7 ad é *

F. Timely Raising of Federal Questions. —

Petitioner raised the Federal Constitutional questions

relied upon here at an early stage of the proceedings, to

. , wit, when he was subpoenaed before the State Commission ~

2

/

°

*and appeared there. At that time, he objected to the ques-

: tions'on the grqund that his Constitutional rights not to

be compelled to incriminate himself were infringed by re-

quiring him to answer, after being accorded only a grant

of-immunity limited to protection from prosecution by New

_ York State (626-63). Reais counsel, he stated that he’

challenged

“the grant of sonnel tipon the ground mat .

[it] is not as broad and is not coextensive with his

privilege against self-incrimination. Chapter 989 sof

the laws of 1958, Section: 2, subdivision 4 and 5, re-

quire the Commission to cooperate with-District At- .

-torneys and law enforcement officers ‘upon their .

request and, more particularly , subdivision } requires

the Commission to cooperate with departments and

officers of the United States Government in this in-

vestigation ‘with respect to violation of the federal

laws within the ‘state .

‘ **T therefore “a that his right under the State. Con-

-stitution, Article 1, Section 6, and the Federal Con-

stitution, the Fifth Amendment to the-said Constitu-

tion, protect this man and that he is being deprived

of due process ‘under the Constitution of the State of .

* New York and under the Fourteenth Amendment to

the Constitution of the United States*’ (627-30).

_ His coynsel also stated:

‘*I further wish to place upon the record the fact that

this man is presenily under subpoena by a Senate

commission, namely, the Seleet Committee on Im-

“proper. Activ ities in the Labor and Management

_ Field! He is under su’ypoena by the Federal Grand °

Jury for the Southern District of New York and has —

appeared before that body on several oc casions ; ‘

and for the above reasons I respevtfully urge that- .

°

. 9

(

this Commission has no power to grant him the im- —

munity which.is co-extensive with his privilege.

against self- incrignination’’ (630-2).

In addition, it should be noted that-a i paiacilianies of __

the aforementioned Senate Committee was prestnt at the -

‘hearing (523-4). None of the Toregoing atatements of fact

was challenged. — a

Tejs claim of laste was before the court when it acted at

Speciat Term (895). 4 |

With respect to the violation of the due process Gause of

othe Fourteenth Amendment, insofar as the unseemly ha |

of the proceedings was concerned, petitioner did not on A

fically ‘claim his rights under the Fourteenth Amendment.

either at the Commission hearing or shortly thereafter at

Special Term, although at Special Term he did protest the -

_ speed and asked for a reasonable adjournment for the pur-

pose of submitting affidavits (890-1). However, in the Ap-

‘pellate Division, and in the Court of Appeals, the question

of the undue haste and lack of opportunity to defend was |

presented to the court, and passed upon, with relation to

violation of lis rights under the Fourteenth Amendment.

(Appellate Division opinion, 7 App. Div. 2d 48, at page 97;

and: Amendment to Remittitur Bi the Court of Appeals,

quoted supra). : ¢

HL Argument of Sninien Relied a. in

: am of Petition.

in. ;

inv

What was accomplished in the instant case was the in- .

definitely-pro.onged jailing of persons. thought tobe erimi- |

nals, without a single iota.of proof of wrong-doing on their

‘part, dalely because se they « cla fail ihadecenia ilege under t! the

Constitution, and refused to incriminate themselves as to

Federal offenses, Such result is not an aecidental, or un-

intended consequence, but rather represents a carefully

thought-out policy which amounts toa modern-day equiva-

lent of the Vigilantes, seeking to imprison or expel those

suspected of wrongdoing, without the inconvenience of

convicting them. The Commission itself - boasts of this

policy, and states that. it will be expanded in every diree-

tion.* It is imperative that this Court establish the Con-

__ Mitutional invalidity of ‘such procedures béfore they

_ beeome firmly ingrained as a part of our law. |

The NewYork State canis have determined a fundamen-—

tat questio a a to be secure —

* In its “Fi irst Report” to the New York Geeta and Legisla-.

ture, Feb. 1959 (N. Y. Leg. Doc. [1959] No. 102), whe Commission

reported as follows concerning: this very case: -

“The. importance of the decisions rendered to date i in these |

matters cannot be emphasized too strongly. The significance

2. of the Commission’s accomplishment in these matters lie in

the fact ‘that this was the first time that the participants at the

_Apalachin Meeting have not been altowed to come through a

‘ revolving door into a hearing and back home again ; this time,

they went from the hearing to jail where they will remain

until they coniply with the order of the court. ‘Ip. 3]

. » »

“The Commission believes. Prat its investigation in this mat-

ter has accomplished much in establishing a new and aggres-

sive approach with respect to underworld characters who -

refuse to give essential testimony. It has also helped materi-

ally in forcing many of these long entrenched underworld

leaders to leave the State of New York and, thus, has dis- -

-" rupted their smooth operations in fields inimica! to the public |

— ame safety. 0 Ip. 14] ; ;

1

— _

——

against self-incrimination in a way which appears to be

contrary to the opinions of this Court in Untted States v.

Saline -Bank (1828), '1 Pet. 100; and -Ballman v. Fagin

(1906), 200 U. S. 186, 195. In addition, ‘the precise issue

raised herein has never beén squarely decided by this Court,

but was expressly left open in the recent case of Knapp v.

Schweitzer (1958), 397 U.S. 371, 379-380. . ;

‘* Our contention here is not that the New York lapapinity

laws are unconstitutional per se, but that the application

of those laws to the*facts in the case at bar produces an

—_— result\jnimical to the provisions | of the

- Fifth Amendment. :

This case is unique | in that the hiasten at which the peti-

tioner was ‘called upon to téstify was before a State author- -

‘ity whieh had as one of its statutorily-mandated- purposes,

crimes and the conveying of the

evidence of pene 80 ; ae to the proper Federal

prosecuting authorities. Only one reported case deals with —

_. & situation where an investigating body, armed with the

power of subpoena’ and the right to grant immunity, had

as a principal purpose the uncovering of crimes against a:

different sovereign. (U nited States v. DiCarlo (D.C. N. D.

- Ohio E. D. 1952], 102 F. Supp. 597). In that case, the court

held that it was not contempt for @ witness immunized in

only one jurisdiction to refuse to answer questions which

would incriminate him in another. This holding was it

aceord with the reasoning. of both the Saline Bank case and *

Ballmann v. Fagin, supra. This unique factor of making’

the scope of an investigation by. one jurisdiction specifically

‘include as a purpose and not merely. as an incident the un- *

Fae of crimes against another sovereign, sufficiently

“distinguishes the case at bar from cases like United States

v. Murdock (1931), 384 U. 8S. 141.

\ <a 2h : o

All the decisions of this Court which have held that a

State grant of immunity in a State investfgation will com- —

. pel answers even though those answers may expose the

witness to prosecution in another jurisdiction: involved a...

State purpose for the inquiry and revelations ‘of cases of

-erimes against other sovereigns, were merely incide ntal,

* unintended and secondary consequences (e.9., Knapp ¥.

Schweitzer, s“pra, 397 U. S. _ Jacky. Kaneqs f1905],

199 U-S. 372).

_ The converse situation—an immunized witness in the

Federal jurisdicti elled to give evidenee which

incriminate him ina State proceeding is typified by

the Murdock case, supra, 284 U. 8. 141. There, this Court

expressly recognized ‘that its decision rested on a finding

that the Federal inquiry was for Federal purposes and was

_ not designed to aid the e State authorities (284 U. S., at page

149). TOR,

Throughout all of the decided cases, there js recognition

of the principle that a witness immunized by a jurisdiction

, which seeks his testimony may be required to give such — ,

| testimony only if the resultant danger of prosecution: far

crimes net saeiee sqvereign is: an unintended conse-"

quence—‘‘ remote’? », and ‘‘not imminent’’. ’ . i here there is

a real and present danger of prosecution in the other juris-

diction for crimes not immunized, the Constitutional rights

‘of the witness come into play and his. priv ilege of silence

will be recognized. Uniformly, . this has been the result at

-common,law, in this Court, and in State Courts. (King of =<

the Two Sicilies v. Wilcox, 1 Sim. [n. s.] 301, 61 Eng. Rep.

‘116 [Ch. 1851]; cf. United States '‘v. McRae, L. R. 3 Ch. 79

- [1867]; Queen v. Boyes [1861] 1 B. & S. 211, 329; 330. See,

i} : , ° Bag as * *,

o . ‘ . 2 “1

> ey ie.

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.

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4

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also, Knapp v. Schweitzer, supra, 357 U, S. 371; U. gv. .

Murdock, supra, 284 U. woe Hale v. Henkel [1906] 201°

S. 43; Ballmann v. Fagin, supra, 200 U. S. 186; Jack v.

Kansas, supra, 199 U.S, 372; Brown v. Walker [1896] 161

U. S. 591; United Statesv. Saline ‘Bank, supra, 1 Pet. 100.

~ See, also, Comm. v. Rhine [1957, Ky.] 305 S.-W. 2d 301; ~

Lorenzo v. Blackbifrn [1954, Fla.] 74 So. 2d 289, 291; State

v. Kelly [1954, Fila.) 71 So. 2d 887, 895-897 ; State ex rel.

. Doran v. Doran [1949] 215 La. 151; 30 So. 2d 894; State v.

Dominguez [1955] 228 La. 284, 82 So. 2a 12; People v:.Den

Uyl [1947] 318 Mich. 645.). Z

Ee honinays decision in Knapp v. Schweitzer, supra, 357

U.-S. 371, did not, we believe, foreclose our present’ con-

tention. There, this Court held that the-claim of imminent ~ .

danger of prosecution in the Federal jurisdiction resulting

from immunized and enforced testimony before a State

grand jury was not factlially borne out by the record. The .

Court expressly left open the gquestion which might arise |

if a real, evidentiary showing were made that an imminent -

Federal prosecution would result, or that there was a

_ ‘joint state and federal endeavor” (id., page 380).. As

this Court read the record in that case, it was ‘‘barren of .

evidence that the State was used as an instrument of

federal prosecution. or investigation’’.

In the case at, bar, on the other hand, the plain waede of

the Stategstatute make jit the duty of the State Conimission,

- to investigate Federal crimes and turn over ev idence of |

such. crimes to the Federal authorities (L: 1958, Chapter

989, Section 2, subdivisions 5, 7). In addition, this peti-

~ tioner had, at the time he was questioned, already appeared

before a Federal grand jury which was investigating him;

was still under subpoena to that grand jury; a Federal .

4

;

d

.

* agent was present at the Commission’s open hearing; and

“a Federal Senate Committee was interested in ‘obtaining

on his testimony. In-the circumstances, it is clear that. there —

“

was here that clear demonstration of a ‘ joint State and

Federal endeavor”’ lacking in the &chweitzer case (Cf.

Knapp v. Schweitzer, supra, 357 U. S., at page 380); here,

clearly, the State was ised as ‘‘an instrument of federal

prosecution or investigation. ’’

Moreover, reference to what was , argue by the success-

ful party in the Knapp case proves convincingly that it was

only’‘‘a bare possibility’’ of jeopardy—not an imminent

danger—in another jurisdiction which ‘was there involved

(District Attorney’ s brief, Knapp v. ‘Schweitzer, supra, in .

this Court, pages 9-10, 11, 17, 18). &

-It seems. inconceivable that’a citizen living perforce in»

the co-terminous territory of both the. Federal and State

Governments,| and protected in both jurisdictions by iden-

tical provisions of the. Constitutions of both sovereigns

from’ self-incrimination, can properly be ‘‘whipsawed into

_ incriminating himself . . . even though there is a privilege |

against self-incriminatign in the Constitution—of both’’.

(Buack, J., dissenting i in Knapp v. Schweitzer, supra, 357

U. S. 371, 385), We submit that provisions liké these, in- —

tended as a shield, should not be turned into destructive

weapons. contrary to the intention of their framers, by the

device of empowering and requiring State officials ‘to in-

vestigate Federal crimes, or vice versa. The ingenuity of

prosecutors in devising clever ways to circumvent consti-

tutional rights should not be permitted to crumble away

the fundamental liberties. This ‘Constitutional provision

is not to be interpreted “in a hostile or niggardly spirit’’

‘(Ullmann v United States [1956], 350 U. S. 422, 426).

45

Recent cases (Abbatte v. United States, — U. S. — [27

Law Week 4225], and Bartkus .v. Illinois, — U. S. — [27

Law ‘Week 4233]), lend force to our contention, by em-

phasizing the fact that-the same act may constitute a crime

in both the Federal and State jurisdictions and .be prose-

cuted in both.

' ‘Pinaaly, the decision of Feldman v. United States ( 1944)

322 U. S. 487, indicates clearly that testimony enforced _

trom a witness in circumstances like that at bar can be

used against him in the Federal jurisdiction. - Ps

3. The procedure violated due process of law. |

: This petition presents another important question not

heretofore decided by this Court, to wit, whether it is con-

sonant with due process of law not to give ‘petitioner a rea-

sonable opportunity to oppose an application to imprison

him until he answers questions. The decision below is in-

- consistent in this respect with decisions of this Court i in the

~

closely related field of contempt. (Cooke v. United States __ é

[1925] 267 U.S. 517; Re Oliver [1948] 333 U. S. 257.) -

The proceedings herein were brought pursuant to Sec-

tion 406, Subdivision 3 of the New: York Civil Practice Act,

the material om ‘of whic h read as aenews

“lf the . person subpoenaed and attending ‘

before an officer or other person or a body refuses

without reasonable cause. . . to answer a legal ©

and pertinent question ... . the person issuing the

subpoena, if he.is a judge of a court of record, or

_ not of record, may forthwith, or if he is not, then.

any judge of sueh. court may upon py ‘oof by affidavit

of the facts, by warrant commit the offender to jail,

.

“

there to remain until he submits to do the act which

he was so ngeeny © to do or is discharged according

to law.’’.

At is. apparent tien a, reading of this subdivi izion that two

separate types of proceedings are contemplated. Where *

the refusal to answer is before a judge, he niay commit

‘‘forthwith’’, without proof. On the other hand, where —

the refusal is not before a judge, there is no authérization

sé 7 %?

for pro reding OTLy : an nroof by_-affide J Tree-

essary. The parallel to the Federal . criminal contempt

procedure is manifest. (Rule 42, Federal Rules of Criminal

Procedure ;. see Brown v. United States a —-U. S.

, 3 L. Ed. 2 609.),

The leading case inliiettng the siiadneeseot’ of Section.

406 is Matter of. Barnes (1912) 204 N. Y. 108. There, it -

was held in the prevailing opinion that due process of law

required that the witness be nét committed until after

notice and a reasonable opportunity had been. afforded to :

. him to oppose the application and that an order committing °

a witness thereunder is a final, adjudication for cofistétu-

+ tional purposes,. and not a mere interlocutory order. As:

Judge WERNER wrote (204 N. Y., at pages 124- 129):

“It has been suggested that the warrant sororvidled

for in section 856 is not the final adjudication inflict-

ing punishment, but merely. an’ intermediate writ *

under which. the alleged offender is taken into cus-

tody until he ‘submits to. do the act which he was .

so required to do or until he is discharged according .

to law.’ It would be difficult if not, impossible: to’

imagine any more summary or effectual method of

depriving a person of his liberty than to take him

into custody without notice, transport him to’ a com-

f7intil ‘he submits te

SP

, mon jail and keep him ther

v

2 pap ertor sy

°

ey” which would. free petitioner from State incarcera-

~

°

= the act’ which is required of him. It matters little

hat name such a mode of procedure is khown.

-It “ep deprivation of liberty, and if it is on

7 notice it is not due process of law. For the¥e=rea-

~ ‘ - sons I vote to construe section 856 as providing fo

notice, and so construed it is clearly constitutional

+) .

We i iat in the rétent dissenting opinion, in

Breen? v. United States, supra, it was stated (3 L. Ed. 2d,

at page 619) that summar y” commitment until a witness a

answ ered questions was constitutionally valid. We respect-

fully submit that none ofthe cases cited for that proposi-

tion approves of summary commitment without adequate

notice. The, “basis. for that dictum is that such a witness

, “is said to carry the keys to the jail in his owii pocket"*.

- This is inapplicable. to the instant case, for here the same

»

tion, would simultaneously gain entrance for:-him to the

Federal penitentiary, ; ‘as more fully pointe out i in swtbdivi-

sioi 2 above. . at d i. ome Ne

ma +s \

‘It is apedtully suluptited that the proceedings had \

herein, prior to petitioner’s commitment, deprived him of

his ljberty githout due process: of Mw, in violation of .the

. Fourteenth Amendment to the Wnit d States Constitution.

- In the instant case, " petitibner was not granted any reason-

s , able time to oppose the application. His request , for: an

adjournment to enable“him. ‘to ‘submit opposing affidavits

was curtly denied (891). W ithin a matter of hours after

he refused to tes ity, he was ‘serv ed Ww ith can order to Show.

-eause, appeared in Special Term, had his “*hearing’', and -

was incarcerated, Even the, Appellate Division noted’ its

‘disapproval of the procedure’ dopted and expressiy criti-

2

17 ) | | ie

ee aoe ae ee aa

q

et cited the «precipitate haste with whieh the proceeding was.

cennenye = ’ (1030-2). chy

These proceedings d Mid not inv volve simple cut-and-dried

siiaibain: A delicate and i fSgepalt ‘problem of procedure

was posed by the suggestion.of this Court in Knapp v.

5 Schweitzer, supra, 307 U. S..371, 380, to the effect that the,

factual question of collaboration hetiiodn” Bate and Fed:

eral offices must be probed to.determine its effect on a con-'

tention such as is now:made. Certainly: no-reasonable op-

Be portunity to prepare for such.a4-probing was afforded

2 (compare Chandler v. Fretag [195% | 348 U.S. 3, 10; Powell. -

‘y, Alabama [1932] 287 U. S. 45, 58-59) ; nor can We assume

- that if'a fair opportunity to be heard and to prepare a de- _

: fense had been afforded, no relevant evidence would have

been produced - (Coe v. Armour Fertilizer Works. [1915}

. 237 U.S. 413, 424; Vooke v. United States, supra, 267 U .S

ie 517). In the Cooke. case, even though the Court senate:

* edged that’ a clear contempt had heen committed, it wrote

that where said contempt wasnot committed in open court,

charges and a reasonable opportunity to betheard are indis-

. pengable requisites (267 U. 8. at pages 536-534) :

q

‘‘When the contempt is not in open court, however, _

- there is no such right or reason in dispensing with

the necessity — and the opportunity of the ©

accused to preSent his defense by~ witnesses and

_ argument. ~ .

* « ° ye

Due process of law, therefore,in the prosecution

of contempt, except of that committed in open court,

requires that the accused ‘should be advised: of the

charges and have a reasonable opportunity to meet

them by way of defense or explanation.. We think’

' this includes the agatanye -e of ‘counsel, if requested,

te

" “ ny -

~ .

te .

. and,the right to call oe to give. teatimony,

_~ relevant either to the issue of complete exculpation

or in extenuation. of the offense and in mitigation

of the penalty to be imposed. See Hollingsworth v.

Duane, Wall Sr. 77, Fed. Cas. No. 6,616; Re Stewart,

(118 La. 827, 43 So. 455; Re Clark, 208° Mo. 1214’

The same rule, of course, pee to proceedings in a State

_ Gourt (Re Oliver, seth a U. S..257, 273). ,

“Accordingly, even “it sliould be held that petitioner

improperly’ failed to answer legal and relevant questions,

certiorari should be granted and the orders below reversed

for failure to proceed in.a manner consonant with due

process of law. Maes tec, Ce Ms: ec

6

a The overall effects of the ial vielate ‘

due process. and a cruel- and ur.usual

punishment. 7 .

In addition to the specific violations of pititioner’ ~ con-

o

stituticnal rights dealt with above, -we submit that ‘his in-

carceration—permanent . for all ‘that appears—has_ been

_brought about by methods offensive to any *‘sense of jus-

tice’? and, regardless “‘theories”’, his ‘practical and

‘substantial’ rights hav& beén destroyed (Rochin v. Cali-

- fornia: [1952] 342 U..S. 165, 173, 174).

%

aa +: Tn sum, the petitionér, a: private citizen, simultaneously

being investigated for violations. of Federal (637), as well

as State (593-4) crimes, ‘was subpoenaed before a State

body which had virftally.. unlimited inquisitorial powers

ee 1958 Chapter 989, Section 2 [1]); see, also, W ‘atkins v.

United States (1957) 354. S. 178; Sweczey Vv. New Hamp-

shire (1957) 354 U. 8. 234, and which was under the “com-.

ae mand of ‘the statute which ereat¢d it to.* ‘cooperate”’ with «—

\

ee ee -— -

the ‘Federal authorities (L. 1958 Chapter 989, Section 2 |

_. [5]) and.was asked questions which, it is not denied, might

‘incriminate him under both Federal and State laws. The _

State body quite Obviously did not expect him to answer

the questigns, as is evidenced by the fact that mimeo-

graphed form papers had been prepared in advance for

his incarceration (692-4). Within a few. hours after his

refusal to testify, proceedings were instituted at Special

. x Term, and were completed with what the Appellate Divi-~

sion was compelled to acknowledge was ‘‘ precipitate haste?’

~ (1032). As a result, he has been imprisoned, not for a

limited period consonant with the gravity of the offense

allegedly committed (compare New York J udiciary Law,

§751; Yutes vi United States [1958] 356 U. S. 363), ‘but

. ostensibly for life, unless he elects to terminate his stay

‘in prison by giving testimony which — likely to

subject ‘him to Federal imprisonment.

\

In this: connection we note that,” far from cftrying “the -

key S of his prison in his own pocket’’, the form of the order

‘in the instafft case directs petitioner to remain in jail until

he shall: ‘*truthfully and responsively’* answer specified

questions (54). Obviously, the Commission has its own ideas

of what is *‘truthful’”’ and had guch ideas even before the

hearings start (136-8). In its interpretation that an an- *

-swer deemed by ‘t to be false will not free the inetitiontr,

the Commisison has been sustained by the Supreme Cour}.

of the State of New. York (in a ‘companion proceeding, .

Valenti’ v. McCloskey, N.Y.L.J. March 30, 1959, page 11). .

This, we submit”&mounts to keeping petitioner in jail until:

he gives an answer believed ‘by his inquisitors to be true :

(Ex Parte Hudgings [1919] 249 U. S. 378, 382-384). .

a P

Furthermore, it. is submitted that this is not a situation

where incarceration is directed as a means of obtaining tes- *

timony. Incarceration itself was the objective—a’ is made

clear by the Commission’s Report, quoted in the footnote on —

page 10, supra, where it refers to the imprisonment of

_ petitioner and others in like position as’ an “‘accomplisi-

ment’. Had the objective been testimony no accomplish-

‘Ment would be claimed, for no testimony deemed credible

by the Commission has been elicited from any witness.

The proceedings herein resulted in a denial of due process

and constitute cruel and unusual punishment in violation of

x Amendments Fifth, Eighth and Fourteenth of the United

States Constitution.

CONCLUSION |

The petition for certiorari should be granted.

_ Respectfully submitted,

AprauaM H. Bropsky,

, ; s Harris ‘B. Stern Bers,

Attorneys for Pe&fioner.

Harris B. STernRERG,

‘Leo H. Himsca, Jr., “by

. of Counsel. * | im

| April 1959.

< ’

a

$ 22 |

APPENDIX es: 2

Opinion in Appellate Division -

Reported in .

7 A. D. 2d 48; 180 N. Y.S. 2d 496.

Bastow, J. We consider together appeals by seven re-

spoudents in separate - proceedings » seeking a review of

orders made at Special Term. Procedural differences in =

disposing of the applications at Special Term require the .

‘preliminary statement that ffve respondents (Frank Val-

enti, Mancuso, Riccobono, Castellano and Miranda) appc al”

from orders made by ‘Spector, J.; and two respondents

(Lombardozzi and Peter Valenti) appeal from orders by

’ Truzer, J. a a eee ‘Se

In August, 1958 ‘the appellants were served with sub-

. poenas issued by ‘the Commisison of Investigation of the ©

State of New York commanding them to appear at a public

hearing being conducted by the commisison in New York“

City. At the first hearing on August 12, 1958 the chairman |

announced that the hearing was being held in connection

_with what is now known as the Apalachin meeting in No-

vember, 1957, at the residence of one Joseph Barbara in

Tioga County. The purposes of the hearing were stated to

be, among other things, ‘‘ Whether the crimes of conspiracy,

- violation of section 340 of the General Business Law which

pertains to monopoly or restraint of trade statutes,’ and

bribery of public officials or any other crimes were com-

mitted or planned at this meeting.’’ There followed indi-

vidual hearings for each of the appellants commencing on —

August 12 and ending on August 19. Each was represented

a) " oF tad

te > Fi aa iis |

me lami hi in Appellate Division =

! by one or more ‘ waiaia t the hearings and in the subse- -

1 quent court ester , ie

The pattern of the proceedings when each appellant ayp-

. peared | before the commission was much the same. Each was.

sked” a series of questions numbering between 30 and 40.

sponsive answers to these questions would have been rele-

rant to one of the subjects of ‘the investigation as stated in

} ‘each subpoena to be ‘‘the organization, purposes and parti-

if tipants of, and discussions had. and decisions made at’? the

Apalachin meeting. Other than identifying themselves; ap-

._ pellants refused to answer al] questions. Such refusals.were |

based on the privilege against self incrimination and other

grounds, most of which are presented upon this appeal au:

will be hereinafter considered. ee ale

Following the respective refusals to answer questiofis, the |

members of the commisison purporting to act under statu-

tory authority (L. 1958, ch. 989, §7) voted to and did purport - ©

to confer immunity upon each appellant in accordance with

- section 2447 of the Penal Law. Each witness was then in- - °

formed .that he had. immunity ‘‘from prosecution by: the

New York State authorities on account of any transaction, ,

. matter or thing of a criminal nature which may be revealed

by your truthful and responsive answers to the particular

questions which this Commission * * * may now direct vou

to answer.’’ Thereafter, each appellant was asked some 26

questions which were among those previously propounded.

Again each witness refused to answer the questions upon -

stated grounds. The direction was made that the questions .

he answered but each os dateitat persisted i in his refusal: ~~

i ae

24

Appendiz—Opinion in Appellate Division 3

We consider first the ensuing court proceedings relating

‘to the five appellants who appeared before the commission

_ on August 12,13 and 15: _As to.each, individual orders were

; obtained directing the named witness to show cause, either

forthwith or upon the same day that he had testified, why a

warrant should not igsue for his apprehension and commit-.

ment forthwith to jail there to remain until he answered the

- questions. The show cause order was supported by an affi-

davit of the commission chairman and a copy of the sub-

‘poena. Following a hearing in each case, and to which we

shall advert subsequently, the applications were granted -

- and warrants issued for the imprisonment of the five’ ap-

péllants until each answered the questions set forth in the

warrant. a “eal

The ie two appellants were brought before Special

Term the day after the commission’s hearing; In the, ine

terim, transcripts of the commission's hearing were for-

warded to the court and counsel. Ugpn request of these ©

appellants an adjournment of two days was granted. At —

‘that time appellants produced certain witnesses and while. -

’ they complain of erroneous rulings in the course of the ex-

‘amination of these witnésses, it does not appear from either.

record or briefs that they attack the validity of the court -

' hearings upon the ground that there was a summary de-

termination without an adequate hearing. At ‘the conclu-

sion of this sombined hearing the applications were granted

and similar warrants issued for the imprisonment of the

witnesses. ?

It is against this background that we consider the.various

contentions of the appellants. It is claimed that the act (L.

{ 95

Appendix—Opinion in Appellate Division

mn, , : |

“1958, ch. 989) creating the respondent commission is upicon-

stitutional and in violation of the State constitutional pro-

vision (art. V, § 3). To place in focus this contention it is

___hecessary to point out that section 2 of article V of the

‘Constitution ‘provides for 19 civil departments in-the State

Government. Section 3 then provides in part that ‘‘No new

departrh ents shall" be created hereafter, but this shall not

prevent the legislature frome creating temporary commis-

' sions for special purposes”

Turning to the enactment (L. 1958, ch. 989) under attack

' we find in section 1 the provision that ‘‘There is hereby

created a ‘temporary state. commission of investigation.”’

The four commissioners are to ke appointed for a term, of

five years ({ 2) and the act-is to remain in ot ET °

years (§ 43). Judged by any standards the commission ix

a temporary one and so at least one appellant concedes in

powers and duties set forth j in the 11 subdivisions of sectio

**

. his brief.. It is unneeessary to recite in detail the f tect

2'of the act. We construe them as being ‘‘special purposes *”

within the meaning of the language set forth in the execep-

tion to the constitutional prohibition against the creating of

‘new. State civil departments.

‘

_One of the landmark decisions construing this constitu-

tional. provision is Matter of People (Westchester Tit. &

Trust Co.) (268 N. ¥. 432). There it was held that an act

creating a Mortgage Coymission and transferring to it the

powers vested in the Superintendent of Insurance to con.

trol and: admiyister mortgage investmeéats of guarantee

companies came within the plain intendment of the cousti-

tutional provision, The court placed emphasis. — the

.

g

’

Appendir—Opinion im Appellate Division

26

‘abnormal 4 not” émer Bi conditions that existed. The

court stated (p. 443) such conditions ‘‘call for prompt

action and, in the opinion of the Legislature, no department sot

is now equipped for such action. The Commission is created _

for the special purpose of prompt and effective action dur-

ing the period when there is special need for prompt and

effective action by a. public atiaiel nein equipped for

that purpose. ig

In Matter of Di ie (Proskauer) (303 N. Y. 206). the

court passed upon the right of the Governor and Attorney-

General to create by joint action a State Crime Commission

under the provisions of subdivision 8 of section 63. of the

“xecutrwe Law. In upholding the validity of the action it

was said (p. 216) that ‘This is a general investigation into

“organized crime and its relation to gov rnment. As an. in-

cident thereto, it may be that-the existen ' specific, in-

dividual crimes will be uncovered, but that will merely be

collateral and subordinate to the main object. of -i ‘inquiry.

The purpose of the investigation. is to secure information

‘to guide executive action, not to ee punish any indi-

viduals. ”? The statute under consideration authorizes simi-

dar general‘ investigations for the guidance of both the

Executive and the Legislature. ‘Pursuant to its legislative

power (N. Y. Const.,° art. ITI, -§ 1) the Legislature was

vested with power to enact the statute and we —— te:

it was riot violative of section 3 of article v

The appellants make various attacks upon ‘the inmunity

: :

conferred upon them by the commission. Section 7 of, the

tnactment (L. 1958, ch. 989) provides in substance that in :

‘any rn hearing conducted by the commission,

Y Se

a

6S. x

27

Appendir—Opinion in Appellate Division

rc

relating to any crime with respect to which, by: express

statutory provision, a competent authority is slathorized to

confer immunity, such may be conferred by the commission

in accordance with the provisions of section 2447 of the a

Penal Law, ‘‘but only after affording the attorney-general

and the appropriate district attorney the opportunity to be

heard intespect to any objections which they may have ‘to

‘the granting of such immunity.’’ Without attempting to

‘consider seriatim the contentions of the several appellants,

we state our. views that léad to the conclussion that im-

munity wasproperly conferred upon each appellant.

The REE as has been noted, placed upon the record

that it w&s investigating, among other things; whether the

‘erimes of conspiracy or bribery of public officiats had been

committed. (Penal Law, §§ 378, 580.) ‘By express statutory -

authority (Penal Law, §4 381, 584) certain named officials

_ and bodies are authorized to confer immunity in accordance

with section 2447 of the Penal Law. The act. yrder con- ‘

“ sideration extended this authority to the commission. At

' the hearings each appellant was carefully informed of such

grant and the extent of the immunity flowing therefrom.

stated that ‘‘immunity’’, as used therein, ‘‘meansAhat such

person shall not be proseéuted or subjected to Any penalty

or forfeiture for or on account of any transaction, matter

This is found in subdivision 2 of section 2447 nf it is:

or thing concerning which, in accordance with the order by

competent authority, he gave answer or produced evidence, ©

and that no such answer given or exidénce produced shall

be received against him upon any criminal proceeding.”’ *

The immunity.so conferred was not limited to the crimes

the commission had stated it was investigating. It was com-

4

Ne

‘ ° : : ae 98 i \

| Appendiz—Opinion in Appellate Division

plete immunity whether the answers given might involve

the witness in the crimes of bribery or conspiracy: or any

other crime provided, .of course, that the answers were

truthful and responsive to the questions. Thus, appellants

’ received immunity coextensive with their privilege against

. self inérimination. (N. Y. Const., art. I, § 6.)

Appellants further contend the proffered immunity was

worthless since the facts were not disclosed regarding com-

munications between commission, the Attorney-General of

the State, and various District Attorneys. As. indicated

above, section 7 of the act creating the respondent (L. 1958, -

ch. 989) provides that its right to confer immunity is to

. . be exercised only after affording the Attorney-General and

- the appropriate . District Attorney the opportunity to be

Pp y's y

~

_ before so doing’should as a matter of course consult with ti

heard in: respect of any objections which they may have

to such grant of immunity. In passing: it might be noted

that a similar provision is found in sectio 7: (subd. 3,

- par. [d]) of the Penal Law. This sectio Mas enacted as

a result of recommendations filed by the. New York State

Crime Commission in 1953. (See Third Report of N.Y.

State Crime Comm.; N. Y. Legis. Doc:, 1953, No. 68, ‘pp.

14-16.) After maprenpen, cone that the. power to

grant immunity be given to a ‘competent authority’? which

was defined, among other things, as ‘‘a majority of a leg-

islative * * ° commission’, it was said (p. 16):.-‘‘The

_ legislation might also provide that any official or official*

group, other than a court, authorized: to grant immunity,

the appropriate district attorney.”’

oe: ft

-. EE ee >

;

_ the witness would not be the les

commission acted ‘iniprov idently in ‘the face. of objections |

29

‘Appendisb-Opinion in Appellate mains

When. rexenten in these proceedings, the- commissior

informed each appellant that it had afforded the Attorney-

General and the appropriate District Attorney an oppor-

‘tunity to be heard in compliance with section 7, but refused

to specify the details thereof: We find no error in that

'. decision. The grant of immunity ‘was absolute. It appears

to have been the legislative intent that before such exten-

sive power was exercised bythe commission, as a matter ;

of governmental contity, it should give certain public prose-

cutors an opportunity to be heard to enable them to induce

' the commission to withhold the granting of such immunity

for reasons advanced, which might have been unknown or

overlooked by the commission. But the opportunity to be

‘heard was not.a restriction og the power. If objections

were made by prosecutors ‘and not heeded by respondent}

alr ‘Assuming the

it might be subject to. correction in gn official forum or

otherwise. Such eventual correction, regardless of what

effect it might have on the commission, individually, of as”

a. body, could not. detract from the imnvunity already:

granted. Thus, in stating that the Attornéy- eneral ‘and . -

appropriate District Attorney had been afforded\an oppdr- |

tunity to be heard, the: respondent sufficiently Somptika

mith the statute. It was not for appéllants to-go

into the matter. When the immunity is granted it i:

at. the peril of the wing but at the peril of the comniis-

sion if it fails to comply with the requirements of thd,

statute.

‘Lastly, upon this subject, the appellants ie that the

ow

‘immunity so conferred was inv alid since it does hot pro-

™. a

ee

aa ft ik

bar x a 30

: Appendix—Opinion ad Appeliats Division -

tect them from subsequent prscecutione by Federal au-

“thorities. This question has been recently passed upon by &

this court in People v. Costello (6 A D 2d 385) in the light

of, Knapp v.: Schweitzer (357 U. S. 371). In the Costello

case (p. 387) we said that ‘‘ Although the potential exposure

to Federal prosecution asserted by appellant seems rea-

sonable enough, since the Federal Goverpment might form

an interest in the ariswers which he: could give concerning

’ the written. notations on the paper found in hi8 pocket,

this exposure is not a -gPound for excusing the answers *

where the: immunity which flows from State law is as ade-

quate as the State can. make it against its. own subsequent

prosecution. (Dunham. v. Ottinger, 243 N. Y. 423.) This

rule is not, of course, open to re- examination here. (Cf.

. dissenting opinions by. Buack and Dove.as, JJ., in Knapp

v. Schweitzer, supra, p. 383.)”’ 7a ye

‘The appellants, however, renew their claims as to the

*. Inadequacy of the éonferred immunity upon the ground

. that’ one of the functions of the commission is to ‘‘co-

operate with departments and officers of the United States. -

government in the investigation of violations of the federal

laws within'this state.”” (L. 1958, ch. 989, § 2, par. 5.) -This - |

does not alter our, opinion as expressed in the Costello-case .

(supra). As we understand the Knapp case (supra) the

crucial holding was that the sole ‘purpose of the. Fifth

Amendmént privilege against self-incrimination is the

security of the individual against the exertion of the power

of the Federal Government to compel: incriminating testi- .

mony. with a view to enabling that samé Government to

"* convict aman out of his own mouth.: 2” (357 U.S. 371, 380.)

—_

-

x

i

( :

“Appendiz—Opinion in Appellate cater

It has been hatetotent ound that the State. conferred upon

appellants complete 1 nmunity.” It ig unnecessary for this

court to speculate as’to what the effect of this. might be ;

in the event of subsequent. Federal prosecution under cir-

cumstances here open only te conjecture. “The test ,is' ©

ee

whether the immunity gives protection against State prose-

' eution—‘‘all that the State is required to or can do is to

_ give immunity against its own processes and, if it has. ‘

done that, as this statute does it, it has satisfied the require-

ments of ‘the Constitution.’ (Dunham v./Ottinger, 243°

N. Y. 423, 438.) . 3

Tn sum, every person. owes, a diay to the State to testify, ‘

-- when called before a duly constjtuted authority. However,

he may not be compelled to testify when. he claims his

it privilege against self incrimination: ‘But that: privilege cf

“disappears when the State removes any danger of crim- —

‘mal prosecution—based on any testimony he may give—

_ by granting immunity securing the witness against such

I prosecution. Hence, when immunity is properly tendered

to a witness claiming. his constitational privilege, he must

answer or suffer/the consequeuces. of. his: coutumacy. The

object of the. constitutional privilege is fully accomplished

_when immunity is granted.

We recognize that in Knapp v. Schweitzer tuatiia thie

court posed but left. unanswered the questfn as to whether,

‘in the case of collaboration between State and Federal

officials, a defendant might successfully assert his priv-

ilege in the State proceeding. Moreover, it is suggested

therein that evidence so. obtained might’ be -exeluded in a

Federal prosecution. This suggestion is re-enforced by

re ese

es ? ee

Appéndia-Opinion in Appellate’ Division

Re ener

_ the ‘views expeesied by ‘some cia the Justices. in separate

_ opinions that the rule enunciated in Feldman v. United

' States (322. U. S..487) should be reconsidered. All of this’

presents. a wide area for judicial’ discussion. “This court,

_ however, in the’ absence -of the ‘expression of a contrary

b. - ‘view by the Supreme Court, ' is bound by the rule of law

i enunciated in Dunham v. Ottinger: (243 N. Y. 423, 438,

Supra). There, as heretofore stated, it was held that the

"State “e only required to give immunity against its own

“proc ses “and when that is done the err icy cal require-

ments have beet ‘satisfied. ; : |

Finally, the spun contend that ihe: commission. pur-

- sued the wrong “remedy in bringing these proceedings

pursuant to section 406 of the Civil Practice Act. More- .

over, they claim. that if the section is applicable the pro-

; ceedings at Special Term were conducted i in such a manner

‘as tp be violative of the due process clauses of the State ¢.

cand’ ederal Constitutions. The appellants argue that the.

witnesses, if they are in con mpt, may only. be prosecuted

‘in a criminal proceeding’ con erning such contempt (Judi-

. ciary Law, § 750). Section 406 provides, in substance, that

4 when a witness, such as these appellants, attending before

a body, such as respondent, ‘‘¥efuses without: reasonable”

3 cause * * ° to answer a legal and pertinent quéstion woudl

“the person issuing the “subpoena, if he is a judge of a

court of record, or not of record, may forthwith, or if he

is not,/then any judge. of such youry/ may upon proof. by ..

affidavit. of the facts, by ‘warrant commit thé offender to

jail, there to remain until he submits to do the act which’

“he was so required to do or is discharged according to

ee?

ee 33

Appendix—Opinion in Appellate Division

law.’? ‘The destinction betweerf#this section and the pro-

: visions of the Judiciary Law (art. 19) is that the latter

are punitive in: nature whereas ection 406 is coercive

alone. (Cf. Matter of Delehanty pecton is Mise. 33,

afd. 280 App. Div. 542, affd. 304 N. Y. 729.) :

; = Matter of Barnes 204 N. Y. 108) the cour considered

_ & like prov ision than found in section 856*of the Code’ of

Civil Procedure. Judge Gray wrote (p. 113) that: ‘‘This

statute is, and: always has been, a valuable instrumentality

_ in the administration of justice and the enforcement of ‘

laws.”’ We find.no authority that required the commission

to proceed to invoke“the punitive provisions of a criminal

contempt as distinguished from its applications for cocr-

-“Cive relief to compel the w itnesses to testify...

A more tr oublesome question is presented as to ehiother

appellants were accorded die process in connection with

the court t proceedings on August, 12,13 and 15. In Matter

(Of Barnes (supray one of the questions’ before the court.

. was whether a summary conviction under the predecessor P

section violated a constitutional right.’ Some of thé inem-_

«bers of the-court were of the opinion (1) that a summary a

conviction without notice violated no constitutional right

and (2) that even if notice were necessary, the court could

‘read into the section a provi.ion requiring notice to be ie

given. A majority of the court, however, while disagreding *

with the first proposition held (p. 122): that the language ©

of the section “may be so construed as to require notice -

to oné charged-with the. contempt; and that when read. in -

connection with the provisions of the Judiciary Law .relat-

ing to criminal contempts, the question is. remov eds from

the realm of doubt.” ; Tose hy

aoe ss | ee

Appendix—O pinion in Appellate Division

a proceedings there can be no question that notice

.-was given in the form of show cause orders based upon —

an affidavit made by the chairman of the commission setting

. forth i in some detail service Pot the subpoena and the ensu-

.ing proceedings before the commission. A transcript of -

the testimony in each proceeding was made available to

the court and counsel for the witness. The disturbing

feature of the proceeding is what took place im Special’:

Term in connection® with five of these appellants. As has

been stated heretofore, these witnesses were brought be-

fore Special Term on the same day each had been called

to testify..yAll requests ‘for adjournments were denied.

There was, however, a hearing and counsel for each appel-

lant advanced in various. ways many of the same conten-

tions that are presented to this court and discussed herein.

A careful reading of the record of the-five proceedings dis-

‘closes that, in substance, each counsel requested additional

time to submit a brigf or examine the law? Counsel was of

the opinion that there were ‘many intricate questions of

law that should be explored. The couft was of thie opinion

.that the legal questions were simple and should be passed .

upon at once. We do not find any request for an adjourn-.

’ ment to enable appellants to produce evidence either docu-

mentary or by witness. The precipitate hgete.with which

_ the proceedings were conducted does not meet with, our

approval. However, the ultimate question is whether there

was ‘any, prejudice to appellants amounting to a denial of .

due process because they were denied. adjournments_ 80

their counsel -could examine the law and submit briefs.

After the passiyg of weeks we have examined the same

questions, together with others advanced by appellants,

| ; ar !

Appendizx—Opinion in.Appellate Division

and determine that Special Term was correct in its aa.

decisions and in the action taken.

The contentions of the remaining ‘two appellant that

they were. not accorded due process are Without substance.

As to them, ‘adjournments were granted when counsel

stated, that they desired to submit proof. Sufbeqnently,

wee were called i in an attempt to prove co-operation

'. between State and Federal law enforcement agencies as

bearing upon the completeness of \the granted immunity.

What has heretofore been written upon this subject makes

it clear that such testimony was irrelev rant and ptoperly

“2.

di

exclided. The same conclusion is reached as to- the court’s

ruling excluding testimony relating to the notice given by

‘ the commissién to other State prosecutors before confer;

' ring (mmugity.

«

It has been said that “The due process ciause does not

guarantee to the citizen of a state any particular form or

method of state procedure. * * * Its requirements are satis

fied if he has reasonable notice and reasonable opportunity

to be heard and to present his claim or std regard

being had to the nature of the proceeding an character

of the rights which may be affected by ig at

Rogers, 281 U.S. 362, 369.) When the contentions of apyel-

lants are considered in the light of this legal principle. it

cannot be found that there was any denial of due process.

7 They reeeived reasonable notice. Some had been sub-

poenaed two weeks before the date of their appearance.

Each was represented by counsel and after complete im-

munity had been granted each persisted in his refusal to

a +0 oa

36

_ Appendia—Opinion in Appellate Division

&

Thereupon, ‘they were ‘enn & Special Term in

proceedings instituted pursuant to section 406 of the Civil

Practice Act. The burden then placed upon appellants to

justify their refusal to answer the questions: was the estab-

lishment by them of a sufficient cause for which a reason

could be and was given. “The reasons so advanced consisted

of legal contentions that the creation of the commission

was unconstitutional and that the immunity conferred was

either defectively accomplished or not adequate to protect

them from subsequent prosecution. After hearings Spe-

cial Term found that no reasonable cause had been shown

by appellants for their r. ‘sals to answer the questions.

The decisions were properly made pursuant to section 406 .

after hearings that met the requirements of due’ process.

_ The orders appealed from should be affirmed,

Baxrret, J. P., Rasty, M. M. Frank and | Vane, WW,

concur. a

Orders unanimously affirmed.

4

~~

3T

‘s Constitutional Provisions

< .

A, AMENDMENT 3, Usitep States Conerrc ines. ,

‘No person shall be ‘held to.answer for a capital, or

otherwise infamous erlme, unless on a presentment or in-

dictment. of, a-Grand Jury, except in cases arising in the

‘land or naval forces, or in the Militia, when in actual ser

- vice in time of War or public danger; gor shall any person

be subject for the same offense t6 be twice put in jeopardy —

of life or limb; nor shall be compelled in any criminal case

to be a witness against himself, nor be deprived of life,

liberty, or property, without due process of law; nor shall

private property be taken for L saa use, without first com-

pensation.”’ oe :

B. AmeNDMES? 8, Unrrep rsa ConstitvTion,

“Exeessiv ¢ bail shall not be required, nor excessive fines ;

im osed, nor cruel and unusual punishments inflicted.”

cai : : ;

_C: AMEN DMENT 14, Unirep STATES CowstiTuTion.

>

“Section 1. All persons born or naturalized in the

United States, and subject to the jur isdiction thereof, are

- citizens of the United States and of the: State wherein they

reside. No State. shal] make’ or enforce any law which shall —

abridge the privileges or immunities. of citizens‘of the —

United States; nor shall any” ‘State deprive any person of

life, liberty, or property, without due process of law; nor

deny to any person. within. its jurisdiction the equal” pro-

. tection of: the awe, * ** +. es seid

| * @

New Yerk Civil Practice Act

‘*§406.. SuspoeNa Issuep sy J UDGE, ARBITRATOR, Rerenes ( OR

OTHER Persons, In CERTAIN Cases.

1. Whey} a judge, or an arbitrator, referee or ow per-

son, or a board or committee, has been heretofore or is here-

after expressly authorized by law to hear, try or determine

a matter, or to do any other act in an official capacity, in

relation to-which proof may be taken, or the attendance of _

a person as a witness may be required ; or ta require a per-

son to attend, either -before him or ‘it, or’ before another |

judge, or officer; or a person designated in a commission

_ issued by a court of another state or country, to-give testi-

mony, or to have his deposition taken, « or to-be examined; a

subpoena-may be issued by and under-the hand of the judge,

. arbitrator, referee or other persen, or the chairman or a

- majority of the Hoard or: ‘committee, requiring the person to

attend ; and also, i in a proper case, to bring with him a book

‘or a paper. ‘The subpoena must be served in the same man-

ner as prescribed for a service of a subpoena issued out of _

a court of record. This section does not apply to a matter

arising, or an act ‘to done, in an action in a court

record..

-. .2, A person who is yon subpoenaed, as prescribed in

“the last subdivision, must obey the ‘subpoena. If he fails

. 0 to do, without a reasonable excuse, he is liable, in addi- .°

“ tion to any other punishment which may be lawfully in-

-flicted therefor, for the damages: sustained by the person

aggrieved, in consequence of the failure, and fifty dollars

in addition thereto, to be recovered in the same manner as

prescribed in the case of a person failing te obey ‘a sub-

39

Appendix—Statutory Provisions — a

; . “ . ;

| poena issued out of a court of record. oo) he fails to attend,

- the person issuing the subpoena, if he is a judge vf a court

of record or not of record, or if not, then any judge of such

a court, upon proot by affidavit of the failure. to attend,

must issue a warrant to the sheriff of the’ county command-

ing him to apprehend the defaulting, witness and bring tim

before the officer, person or body before whom or which

his attendance w Was required,

3. If the person subpoenaed and sitindtne or brought |

as preseribed in the. last. subdivision before an officer or

other: person or a body refuses without reasonable cause to

- be examitic » or to‘answer a legal and pértinent question,

or te produce a book or paper which he was directed to

bring by the terms of the subpoena, or to subseribe his depo-

sition after it has heen correctly reduced to writing, the . °

person issuing the subpoena, if he is a judge of a court of

record, or not-of record, may forthwith, or if he is not, thien

any judge of such court may upon proof by affidavit of the

facts, by warrant commitcthe offender to jail, there to re-

main putil he subnits’ aye act which he was so required

to do or. is discharged according to law.

4. A warrant of° commitment, issued as prescribed in the

last subdivision, must specify particularly the cause. of the’

- commitment ; and, ‘if the witness is committed for refusing _

_ to answer a question, the guestion must be inserted j in the

warrant. Jan oe :

- A warrant do apprehend or commit a person, inaued

as preser ibed'in this section, must be direct ed to the sheriff

of the county where-the perso is, and must be-exee uted by

hin in the swine manner as 2 snilar mandate issued by a

court of record i In an action.’

te

| 40 ko

‘ . * ~ : F

se peas Appendia—Statutory Provisions

New York Laws of 1958, Chapter 986

. “Seetion 2. Functions, powers and duties -of the com-.

M2 mission. The commission shall have the following fune-

tions, powers and duties :

1. The commission shall have the pom and wont to

~ cohduct investigations in connection with: ee

De The faithful execution and nities enforcement

of the laws of the state, with particular reference

but not limited’ to orgapized crime and racket-

eering ; 4 ; i" ; : . :

(b) The conduct of public officers and public em-

ployees, and of officers and employ ees of _—

Riel ets corporations and authorities;

co

' (c) Any matter concerning the public ee, public

safety and public justice, ©

\

5. The commission shall cooperate with inigoiaita

and officers of the United States government in the investi-

gation of violations of the federal laws within this: _

ae ee

7. Whenever it shail appear to the commission that there

is cause for the prosecution for a crime, or for the removal

of a public officer for misconduct, the commission shall refer

the evidence of such erimé or misconduct to: the officials

‘authorized to conduct the ‘Prosecution or to remove the’

_ public officer. i ; :

4 = ‘

; ~

: c

. .

aa 41 ral

Appendiz—Statutory Provisions —

New York Penal Law -

‘*SectTion: 2447 AW ir esees’ IMMUNITY.

“1. In any investigation or proceeding where, by ex-

press provision of statute, a competent authority is sor :

ized to confer immunity; if a person refuses to answer a

question or produce evidence of any other kind on the

ground that. he may be incriminated ‘thereby, and, notwith- .

- standing such refusal,an order is. made by such competent

authority that such person answer the question or produce

the evidence, such person, shall comply with the order. If

Such person complies with the order, and if, but for this

section, he would have been privileged to withhold the

answer. given or the evidence produced by him, then immu- '

nity shall be cotferred upon him, as provided herein.

2, ‘Immunity’ as used in this section meghs that: such

person shall‘not be prosecuted or subjected to any penalty :

or forfeiture for or on account of any transaction, matter :

or thing concerning which, in’ accordance with the order of .

competent authority, he gave answer or produced evidence,

and that no such answer given or evidence produced shall

be received against him upon any criminal proceeding. But

he-may nevertheless be prosecuted or subject to penalty or

forfeiture for any perjury or contempt committed in an-

swering or failing to answer or. in producing or in failing

_ to produce evidence, in accordance with the order, and any

‘such answer given or evidence produced shall be admissible. -

against him upon any criminal proceeding concerning such

perjury or contempt.” * * * | | :

a