# Motion to Dismiss or Affirm — Frohman Holland v. Hogan, District Attorney > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1140%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Motion to Dismiss or Affirm - **Published:** January 1, 1968 - **Citation:** 392 U.S. 654 ## Text « 's Po : . : y ‘ ° “ . . rs ora " " M =— ?@ > . s ° “* ae. . . vo e* . In‘ | NOV 101967 - a 8 Court of the Buited] Spatesers cm ‘ ; 4 os ’ * o > 2 . ; 4 7 s “ ’ . . ~~ , a r f 7 “ : ‘ . - ne A ' ‘* “ - vid Sa eat e = ers “7 : _ * VDABLE OF CONTENTS: | ‘ | PAGE . Opinion Below .:....:......... or eS Eee UP . : " >. F ’ ne -e * . Gardner v. Broderick, 20 N. Y. 2d 227; 229 N. E. 2d 184, app. pending No. 635, Oct. T. 1967 : 6,7, 8,9, 12, 14 Garrity v. New Jersey, 385 U. S. 498 ........... 5, 10,14. George Campbell Painting Co. v. Reid, 20 N. Y.-2d - 370, 229 N. E: 2d 602, app.. pending No. 673, Oct. Bs BPE AS svis sewiice gnats ue Feeseee enee; N\ \ \ In re Gibraltar Amusements Ltd., 291 F. 2d 22 a earags . Cir.), cert. den, 368 U..S. WEEE cs dade kcnsesiae’ +a. *: ! ‘Joint Anti-Fascist' Refugee Coitimittee v. McGrath, . | (341 U.S, 122 . jin as pre ae cidns ik aoe oN nee ee 11 oe Lagow v.. United States, 159 F, 2d 245 (2d. Cir.) a Lerne opr Mepmereatle eo | _ MeGowan v, Maryland, 366 US. 420 g......e- 10° % McNeese’ v. Deaod of Education, 372 _U. "8. 668 .... “Ss | _ Monroe v. Pape, 365 U, S..167 .........-. Aen | Nélson v. County of Los Angeles, 362 U. 8.1 ......13, a . Noble » C.LR., 368 F. 2d:439. (9th Cir.) ....... co . Perkins v. Lukens Steel Co., 810 U. 8.118 ........5. 11 Poe v. Ullman, 367 U.S. 497 Neb ev aiAwaeus errr 10 Slochower v. Board of Higher Bducation, 350 U. Ss. SME encase gee Bar cases siccens ons BA 8: Spevack Vv. Klein, 385 U. S. 511 cece an wauant 1.5, 8, 14° Stapleton v. Mitchell, 60 F. ies 51 (D. ‘Kan.). Laie Ss Thorpe v. Housing Authority, 386 U. S. ee Le #2. ileston v. Ullman, 318 U.'S. 44 ......5...00eceeees 10 Be } Uniformed Sanitation.Men et al. v. Commissioner bog capes . Sanitation, —— F. 2d —— (2d Cir. Sept. 20 roe ; ra Ohl 1967), Sl: Sh.. Op: p. me nee. | gts oe + United: Public Worker v. Mitchell, 330 8 Bas ea | United States v. Raines,“362 VU. 8. aa. 62 vee eeeeeees - 10 Hg ~ A er i ; — PAGE United States v. White, 344 U. Sp 694 .....% siete u United States ex rel. Laino.v. Warden, 246 Supp. - o - iz "72. (SD.N.Y.), aff'd 355 F. 24 208 (2d Cir.) ..12,18,14 22 TABLE OF CONTENTS’*~~ siti ees eames a 8 pore ea - Matter of Zara Contracting Co. Inc., 45 Misc. 2d 497 a Ct. Albany ©o.), aff’d 23 A. D. 2d 718 (3d — ), Ww. to app. den. 16.N, Y. _ ae: ree . : > Srarurss 28 U.S.C.: ° : : | Nene Sere ensayo ene § 2284 eT T TT Serer eee hl ae 41 C.F.R. §1-1, 317 (1965) aT Tee Réel caeGs eheb A 13 New York Agriculture and Markets Law § 257 . “ a & Ne ew York Executive Law § 71 . eae Coie Wess 4. New York General ‘Municipal Law: | ee See ey hn er 2 to ‘ § 108-d ei checa eh Pa durk dicueée ee ee agape 13 | New York Public ‘Authorities Law: EE ieee Oras eed his owed aes soon vee a0 7 i a rey, ee Re ee 3 New York State Finance Law §139-b ...:.0....:.. 8 w York City Charter -§ 1123 eeiionk: i ekes pan ork City Health Code, Art. 3, § 111 05 ; se oe 10 Rule 16, Revised Rules of Supreme war of aS 1,2 2 _ MISCELLANEODS | N. - State taneiaiins Annual (1959), Memorandum : _ of the Governor, P. “431 teeeyreeees ere ee ‘ en oo Be e i | a? ‘ s &, 2. IN THE Perm art of i Rath es OCT OBER TERM, 1967 No. 653 +75 -ROHMAN HOLLAND, IRVING HOLLAND, HARVEY MILLER, ROBERT SAUNDERS, BERT GILBERT, on their _ own behalf and on behalf of all! other persons similarly situated, Plaintiffs-A ppellants, | RICHMOND KOTCHER, NORTON KOTCHER, | - DAVID GIMPEL and JACK SACKS, ; , Tg hb Intervenor-Plaintiffs-A ppellants, MICHAEL W. CAMMAROSANO and EDWARD BRENNAN _ and all other gifficers and. employees of the Borden Company, . RAG sae te oar “RANK S. HOGAN, District Won y SAMUEL YASGUR, Assistant District Attorn + Coan each and every Assistant District , —— of New York County, and- SAMUEL ADLER, — - : ae _ Defendants-Appellees, LOUIS J. LEF KOWITZ, as peer General _ ,of the State of ‘New York, ~ : -Intervenor-Defendant-Apjelle, On APPEAL FROM THE Unirep States District Court FOR THE SOUTHERN District oF New York ys a4 IOTION TO DISMISS OR AFFIRM BY ATTORNEY “GENERAL OF THE STATE OF NEW YORK Intervenor-appellee, Louis J.. Lefkowitz, Attorney Gen- ral of the State of New York, moves pursuant to Rule 16 ? the Revised Rules of the Supreme Court of the United “2. | = ‘Wakis that the lad of the: Unit States District Court for the Southern Distriét of Ne Em be efirmed or, in the — that this appeal be Opinion Below ce ‘The opinion of the Court below is not am aero It _ is reproduced as ——_ * to sppellants. ety statement. Jurisdiction | higgdienta: invoke the jurisdiction of this. Court under ' 28 U.S.C. § 1253. “8 Statute Involved — York State General ae Lew, 6 103-b (Ap- : pellants’ Aypees ahs ~ Questions Presented > 1. Did the District Court improperly _abstain-trom’ de-— '_ciding the constitutional question presented in view of the _ patent necessity for State construetion of the statute and appellants’ insistence that the sanction of the statute: was not available because’ State authorities did not coniply with ee _ statutel lis , aoe 2. Does the instant aie present a. justiciable contro-. % versy within the ‘jurisdiction | of: this Court? 3 Does the questjon of the ‘eonstitutionality of the . statute raise a substantial federal question réquiring’a full hearing before this spats oy > o-~—— Statement 3 Appellants appeal diréetly from an order of a three- ’ judge statutory court ‘of the United States District Court . for the’ Southern District of New York abstaining ‘from . : _ deciding whether or not New York General Municipal Law . - . §108-b is consitutional. That statute provides in substance » that, when a person called-before a Grand Jury to testify *- concerning any transaction or contract had with the State or any of its: political subdivisions. ‘‘refuses to sign a waiver of immunity against subsequent criminal prosecu- tion or to answer any relevant question -concerning such transaction or contract’’, he and any corporation. of which , he is a director or officer shall be ‘disqualified from there- after selling to or submitting bids to or receiving awards _ from or entering into any contracts with any municipal corporation or fire district, or figeno any public department, . agency or official thereof’: ... for a. period of five years + after such refusal or until a disqualifeation shall _be re-- moved . Ded enn _ | __In thei agains the appellants allegdd that each is an Officer of a-named milk dealer ‘‘which engages, or may engage in any transaction or has or may obtain. a contract or award or has submitted a bid for milk or dairy goods, work or services with the State of New York, any munici- pal corporation or fire district therein; any public authority therein or any public oo ry. —— there- j of’? (Complt. ¢ 2). ss ~ Each appellant alleged: ‘that he was called: Furthermore, appellants persist in their claim raised id , 4 before the District Court that the District Attorney im- - ‘ . te properly applied § 103-b when. he Poenin TD a iced, : — ¥ ; '¢ incrimination was violated by thé-threat that corporations | with which they were associated would be disqualified from ~ obtaining milk contracts if. they did not sign waivers of | immunity.” It is clear that if appellants “vere to present an ‘aiguable claim that their privilege against self-incrimina- _tion has been violated, it would be requisite for them to establish either that improperly obtained testinfony was used against them in, criminal proceedings or that they, as. _ individuals, have suffered a civil sanction solely because of: _ theit invocation of the privilege. In the instant case, can-. cededly, not one of the’ appellants waived immunity, not-one Of them testified, and not one of them was indicted as: a Tesult. of. any such testimony being used against him. Con- trast Garrity v. N ew Jersey, 385 U. S. 493. Nor is there. ae arguable claim that they age: suffered> — the imposition of a sanction ds a result of their claim of - such privilege. First, none of the appellants, as individu- : als, or as milk dealers, were’ licensed to sell milk as res and New York Cit uw quired by New styditalth Code, and Matkefs Law, § 257 ca Ith Code, Article 3, § 11405.- -It is axiomatic that one who is‘not directly aggrieved by the operation of the statute may not challenge its: validity in a federal court. ‘McGowan v. Maryland, 366 .U. S. 420, 429- _ 30; United Btates v. Raines, 362 U. S. 17, 20-24; Tileston — ‘ vy, Ullman, 318 US. 44. Here the only possible conse- quencgs of the refusal of. appellants to sign the requested waivers of immunity are the civil sanctions to the corpora- tions. Since there are no sanctions, against the. individual on plaintiffs, it is untenable‘for stich appellants as individuals _to daim thd standing to challenge the operation of the statute. Poe v. Ullman, 367- U. 'S: 497, 503-505. Appellants’ novel claim cto, meet this indispensable - re- quirement is that ey are substantial stockholders of-the ; corporate licensees’ and may suffer some consdyuences of any possible disqualification of those corporate. licensees. - However, the allegation ¢ of speculatively cries economic \ vr ces detriment does not justify the action ae the ‘individual stockholders. Perkins v. Lukens Steel Co., 310 U. S. 113; . Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 422, 151. Even if each appellant owned all. of .the stock of the corporation, -by electing to do business as a corporation he éstablished a separate entity with its own rights, duties and liabilities. The corporation is neither _ responsible for its officers’ of stockholders’. individual li- . abilities, nor is it the beneficiary of their individual rights. Noble v. C.LR., 368 F. 2d 439, 445 (9th Cir. ); In re . Gibraltar Amusements Litd., 291 F. 2d 22 aie cert. den. 368 U. 8. 925; Lagow v. United States, 15 2c 245 (2d Cirs. Appellants? claim that they are virtually un-— emplogable certainly is not a result of the statute. The. stitute is directed: only at officers or directors of corpora- — tions, it does not even apply to stockholders, let alone mere | employees. And, of course, appellants are not, in fact, © unemployed. ’ : : tn Peculiarly, the licensed milk dealer ieimastionin were: -. not made parties in this case. The complaint did not | ge. that it was a violation ef due process of law to-di ify ~ such corporations fram obtaining city contracts because of - any officers’ refusal to sign a waiver of immunity. More- over, appellants still insist that they are not seeking "to raise any claifn on behalf:-of the corporations. It is obvi-.: ous, indeed, that the coxporations could not assert a claim of violation of the privilege against self-incrimination . since they do not have a privilege-of their own and since - they cannot assert that privilege on behalf of anyone else. United States v. White, 344.U. 8. 694. - The individual. appellants” cannot claim a violation of | their privilege against self-incrimination by virtue of the ‘ imposition of a sanction on another entity, . thdt is, the