Petition for Writ of Certiorari — Aris Gloves, Inc. v. United States

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JOH" é i

Supreme Court of the United States

October Term, 1961

No. 550

ANTHONY MARCHITTO,

Petitioner,

a: oe

WATERFRONT COMMISSION OF NEW

YORK HARBOR.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF

NEW YORK

Leonarp B. Bounty,

Victor RasinowirTz,

Attorneys for Petitioner,

25 Broad Street,

New York 4, N. Y.

RasinowitTz & Bovpriy,

ARTHUR SCHUTZER, ‘

Of Counsel.

Dated, November 12, 1961.

Opinions Below ........-.--eeeseeee cere ee eeeeess

FN SPEER TEE TT CCC CTR ATUL CLL

Question Presented .......--..-+eseeeeeeeeeeeees

Constitutional Provisions and Statutes Involved....

ss cp cuseenrebesacke sh tes cave neee oes

Reasons for Granting the Writ..........-.-++-+:

ae heave baa Wad d:b nd Visaser ess 06

Appexpix A—The Constitutional Provisions and

Bintuten TRVGICER 2.0 c ccc sees eee ctensavescces

Appenpix B—Further Statement of Manner in

Which Federal Questions Sought to Be Reviewed

ee cop ek es cease ees sda peantees

Appenpix C—Opinion at Special Term..........--.

Appenpix D—Order of Court of Appeals .......--

Order of Supreme Court, New York County, Special

NS ee Pa Pee) ey eee eee ee

Table of Cases

Berger v. United States, 295 U.S. 78.......----++5

Byars v. United States, 273 U. S. errr er

Blackmer v. United States, 284 U.S. 421.........--

Bowers v. United States, 202 F. 2d 447 (C.-A. D. C.,

rer rr to rien. ee adi as

Carpenter v. Spooner, 2 Sandf. 717 (1850) ......5.

Cohn v. Kramer, 136 F. 2d 293 (C. A. 6, 1943)....-.

Cooke v. United States, 267 U.S. 517.........+++-

Delaware River Joint Toll Bridge v. Colborn, 310

ee eet ew eh ashe ke hak veces eees

PAGE

De Veau v. Braisted, 363 U.S. 149..........-0-2 06. 11

DiCarlo vy. United States, 102 F. Supp. 597 (N. D.

Ohio, 1952) ........ cere cece ce eeecccoccscceee 15

Dyer v. Sims, 341 U.S. 22.00... 60 ee eee eee eens 11

Elkins v. United States, 264 U. S. 206........ satan aie 16

Feldman v. United States, 322 U. S. 487........... 16

Fong Yue Ting v. United States, 149 D; 6. Ge6.....5 10

Gampel v. Gampel, 114 N. Y. S. 2d 474.......-..--. 12

Gibson v. Florida, Oct. Term, 1961, No. 70.......... 18

Yoldsmith v. Board of Tax Appeals, 270 U.S. 117... 9

Green v. Biddle, 8 Wheat. (21 U.S.) 1 ......--.--- 15

Hovey y. Elliott, 167 U. S. 409.......---. eee eee 11

—

In re Oliver, 333 U. S. 257..........ccceccceee 9, 10, 11

In re Rockhill, 70 F: Supp. 465 (D. C., D. N. J. 1947) 11

In re Waterfront Commission v. Moody, S. Ct. N. J.,

Hudson County ........0-- eee cece cere ence eees 16

Jay v. Boyd, 351 U.S. 345.0000 i0

Kilbourn v. Thompson. Oe gst Ree 17

Knapp v. Schweitzer, 357 U.S. 871. ....--.-.--++- 15, 16

Liveright v. United States, Oct. Ter +. oe 18

co 16

Mills v. Louisiana, 360 U.S. 230. .........---0-++- 16

Morgan v. United States, 304 U.S. 1......--+-++-5- 9

Murphy v. Waterfront Commission, Oct. Term, 1961,

No. 362, cert. den., 30 L. W. 3144.00.60... +e ees 14

Neootex Mfg. Co. v. Eidinger, 250 App. Div. 504 (App.

Div., Ist Dept., 1939) ......-- eee e ee ee eee ee eeees 12

Petty v. Tennessee-Missouri Bridge Comm., 399

we: Prep err rerr eee Ee rey. rt 11, 14, 15, 17

President, Managers, and Uo. v. Trenton City Bridge

(‘o., 13 N. J. Eq. 46 (1860) .....-- ee eee rece eee 15

ili

PAGE

Raley v. Ohio, 360 U.S. 423... 05... eee eee reece 14

Re Savin, 131.U. S. 267........---ececcecccccccecs 10

Sacher v. United States, 356 U. S. 576......--+-+- Naty

Sardo v. McGrath, 196 F. 2d 20 (C. A. D. C., 1952) .. 10

Scull v. Virginia, 359 U.S. 344.0... 2-6 eee eee ees 18

Sorrells v. United States, 287 U.S. 485......-.--+- 14

State v. Feudre, 54 W. Va. 122, 465. E. 269 (1903) . 15

State v. Hoofman, 9 Md. 28 (1806)....--+-+-++-++ 15

Svarney v. United States, 7 F. 2d 515 (C. A. 8,

TERE MEETS HOON eT re eae 10

Sweety v. New Hampshire, 354 U.S. a sary xs ors ae 18

Tickle v. Barton, 142 W. Va. 188, 99 Ss &. oi az .. 14

Tinsley v. Anderson, oa a ae Si Fee 10

Ullman vy. United States, 350 U. 5. rere ree 19

Ungar v. Seaman, 4 F. 2d 80 (C. A. 8, 1924)... +--+: 10

United States ex rel. Knauff v. Shaughnessy, 338

GF en ee ir ah ae WRORRTE SOEUR RT ERUSR 10

Uphaus vy. Wyman, 360 U. 5. Pr Oa eads eee 18

Watkins v. United States, 354 U.S. 178.......---+- 17

Wolf v. Colorado, 338 U.S. 25. ......-6-++ eee rece 16

Wong Yang Sung v. McGrath, 339 ee ee ce kneuet 9,10

CONSTITUTION :

Art. 1, § 10, cl. 3 0.0.2... eee csocecercccrcceers 11

Fifth Amendment .......----+++eeeeteeeree il

Sixth Amendment ......-.--0-02:ee terres 11

Fourteenth Amendment ........-+-+++++++++ 11

Statutes

Civit Practice Act oF New York:

SEE etre err his ria 5, 6

OE ne ig kg EGOS SAAD MP ERERAEARE- SORES 6,7

WaterFront Commission ACTS:

N.Y. Laws, 1953, ¢. 282; MeKinner Unconsol. L.,

6700-a et seq.; N. Y. Laws, 1953, e. 202, 203:

PAGE

N. J. S. A. 32; 231 et seq. ...---.20-.- 2.3, &, 11, 1?

Act of August 12, 1953, e. 407, 67 Stat. BR we ois 5 ea eas

Articles, Miscellaneous

FRANKFURTER AND Lanpis, THe Compact CLAUSE OF

THE CONSTITUTION :

A Study in Interstate Adjustments, 34 Yale Law

DREN TE colic deve cescnsvaceaverdceaes

Jurispiction By TRICKERY: ENTICEMENT FOR SERVICE

oF PROCESS:

7 Duke Law Journal 52 (1957) ......-.--+-++s

Kroner—SELF-INCRIMINATION :

Self-Incrimination: The External Reach of the

Privilege, 60 Col. L., Rev. 816 ( eee

Leacu, Toe FeperaL GovERNMENT AND INTERSTATE

ComMPACTs:

99 Ford. L. Rev. 421 (1961) ......--+--+--eee-

ZIMMERMAN AND WENDFLL:

The Interstate Compact Since 1925 (1951) ....

IN THE

Supreme Court of the United States

October Term, 1961

No.

—~-

AxTHOoNy MARcCHITTO,

Petitioner,

—Y —

WarTerFRost ComMission oF NEw YorkK Harpor.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF

NEW YORK

Petitioner prays that a Writ of (‘ertiorari issue to

review the order of the Court of Appeals of the State of

New York made on October 5, 1961 which denied peti-

tioner’s motion for leave to appeal from an order of the

Appellate Division, First Department unanimously affirm-

ing an order made herein on March 20, 1961 by the Supreme

Court of the State of New York adjudging the petitioner

in civil contempt and committing him to prison until he

pnswers certain questions of the Waterfront Commission

of New York Harbor.

Opinions Below

There were no opinions in the Court of Appeals or in

the Appellate Division. The opinion in the Supreme Court

of the State of New York (herein called Special Texm)

adjudging the petitioner in civil contempt has not been

officially reported and is printed in the Appendix, infra,

page 30. The orders of the Court of Appeals, and the

Supreme Court are likewise printed in the Appendix, infra,

pp. 29 et seq.

Jurisdiction

The order of the Court of Appeals of the State of New

York denying petitioner’s motion for leave to appeal was

entered on October 5, 1961. On October 13, 1961, Mr.

Justice Harlan granted petitioner’s application for a stay

herein pending the filing and disposition of a petition

for a writ of certiorari, provided the petition were filed

on or before November 14, 1961 and petitioner post a

surety bond in the sum of $10,000. Said bord has been

duly posted, approved and filed. Thg jurisdiction of this

Court is invoked under 28 U. S. C. 1257(3).

Questions Presented

Petitioner was adjudged in civil contempt in a pre-

eceding instituted in the Supreme Court of the State of

New York Ly respondent Waterfront Commission of New

York Harbor by reason of his refusal on the ground of

constitutional privilege to answer certain questions put

to him by the Commission. The Commission is an agency

credited by the Waterfront Commission Act, an interstate

compact enacted by the States of New York and New

Jersey with the consent of Congress. In this context, the

questions presented are:

1. Whether petitioner was denied due process where

he was denied the hearing he demanded in the quasi-

criminal contempt proceedings and was adjudicated in

contem >t solely upon affidavits.

2. Whether petitioner was adjudicated in contempt in

violation of the Waterfront Commission Act in that (a) he

was immune from process instituting the contempt pro-|

ceedings while in New York pursuant to a Commission

subpoena to testify, and (b) the Cou:mission failed to

comply with the statutory conditions preceden* to the grant

of immunity.

3. Whether petitioner was deprived of due proces= be-

cause his entry into the State of New York was enticed by

the Commission’s fraud and misrepresentation in order

to serve him with process in the contempt proceeding.

4. Whether an ageney c:cated by int-rstate compact

with the consent of Congress Which collaborates with other

avencies of the federal government in the investigation of

federal crime can compel testimony in the absence of

immunity from federal prosecution.

5 Whether such an agency is subject to the -vquire-

ments of due process as declared by this Court to be appli-

cable to Congressional and state legislative commit ves.

Constitutional Provisions and Statutes Involved

The constitutional provisions involved are Article I,

£10, cl. 3 and the Fifth, Sixth and’ Fourteenth Amond-

ments to the Constitution. -

The statutes involved are the Waterfront Commission

Act. an interstate compact enacted by the States of New

York and New Jersey (New York Laws, 1953, ¢. 282,

McKinney Unconsol. Laws (6700-a, ef seq.; New York Laws

1953, c. 202, e. 203, N. J. S. A. 32; 23.1, ef seq. with the

consent of Congress, 67 Stat. 541, Act of August 12, 1953,

ce, 407). Tne New York statutes now appear as McKinney

Unconsol. Laws, Title 29, Sections 9801-9937.

The pertinent constitutional and statutor, provisions

appear in the Appendix, infra, pages 20-25.

Statement

Petitioner i life-long resident and citizen of the State

of New Jersey nere he has been employed for more than

twenty-five years (R. 70). Respondent is the Waterfront

Commission of New York Harbor ( herein called the ‘*(Com-

mission’’) created by an interstate compact, the Water-

front Commission Act, infra, pages 21-24, in order to elimi-

nate evil conditions on the New York waterfront. The

Commission is authorized to license and register waterfront

workers, to investigate waterfront practices, and to recom-

mend the improvement of waterfront conditions.

Petitioner was allegea by the Commission to be a trustee

of two local unions of the International Longshoremen’s

Association (herein called the ‘‘ILA’’) (R. 92). Neither

local is claimed to be within the Commission’s jurisdiction

since they are warehouse rather than waterfront unions.

Their members s*2 not required to be licensed under the

compact and their employers are not governed by the

compact (R. 94-95).

In early June, 1960, petitioner came from New Jersey

to New York in response to a subpoena which had been

served upon him in New Jersey and whose validity he had

unsuccessfully challenged in the New Jersey Courts (R.

92, 93). He was interrogated by the Commission in execu-

tive session in the course of which he asserted his consti-

tutional privilege against self-incrimination (R. 111).

Thereupon, he was directed to appear before the Com-

mission on June 22, 1960, in a public session where he was

again ordered to answer substantially the same questions

and purportedly offered immunity against prosecution for

state, not federal, crime. The Commission did not indicate

the subject matter of the investigation, the purpose of the

investigation, or the pertinency of the questions. Some of

them were of the kind held not pertinent in Bowers v.

United States, 202 F. 2d 447 (C. A. D. C., 1953) ; others, such

as petitioner’s involvement in department store and drug

store strikes, were seemingly irrelevant to an investigation

of waterfront conditions.

Petitioner declined to answer the questions on the

ground that the Commission had failed to comply with the

conditions precedent to an offer of immunity. In this Court,

we limit the claim of non-compliance to two facts: (1) non-

compliance with the statutory provision that notice of the

offer of iramunity be given to all state officials ‘‘having an

official interest therein’’; and (2) non-compliance with the

constitutional requirement that in a case of this kind, fed-

eral immunity must also be given (infra, p. 14).

The Commission then directed the petitioner to return

the following day from his home in New Jersey to the Com-

mission’s public hearing in New York, purportedly to testify

before the Commission. Apparently, however, its purpose

was to subject him to service of process in the instant con-

tempt proceedings (R. 42, 71-73).

Upon his return to New York, on June 23, i960, the

Commission made a pro forma inquiry of petitioner as to

whether he had ‘‘changed your position’’ (R. 74). It then

served him with the order to show cause instituting these

proceedings to adjudge him in contempt. Whereupon,

petitioner moved at Special Term to vacate service under

Section 237-a of the Civil Practice Act upon the grounds:

(1) that he was exempt from service of the said order to

show cause by reason of the provisions of the Waterfront

Commission Act, Part IT, Section 5-m, McKinney Uneon-

solidated Laws, Section 6700, tt-13; and (2) that he had

been enticed by the Commission into the State of New York

for the purpose of service of process (R. 68, 69).

The first ground of the motion involving the federal

question of the construction of an interstate compact was

raised in petitioner’s cross-notice of motion (R. 68) and

in his affidavit (R. 70). See also, infra, p. 11. The second

ground, involving a denial of due process, is similarly set

forth (ibid.).

The motion was denied by the Supreme Court Special

Term, New York County, (R. 84-85) and the order of denial

was affirmed by the Appellate Division upon an interlocu-

tory appeal. Petitioner preserved the jurisdictional point

in the subsequent contempt proceedings as he was entitled

to do under Section 237-a, sub. 3(c) of the Civil Practice

Act (R. 164). On August 2, 1960, petitioner moved in the

Supreme Court, New York County to take the deposition

of the Waterfront Commission by its agents and for a

discovery (R. 87-90). His affidavit recited his prior appear-

ance in the executive session of the Commission on or about

June 2, 1960, stated that the questions at the executive and

public sessions were essentially the same, and that ‘‘the

purpose of conducting a public session, June 22, 1960, was

therefore an improper one, and solely for the purpose of

exposing your deponent and violating his right of privacy”’

(R. 93).

Petitioner also stated the necessity of a deposition and

discovery to support his claim as to lack of bona fides in

subpoenaing him and offering him immunity, failure to

make luminous the subject: matter of the investigation,

failure to comply with the applicable statutes as condition

to an immunity grant, and the fact that the subpoenas were

the result of collaboration between the Commission and

specified federal agencies. (See Appendix C, infra, pp. 26-

28.) The denial at Special Term of the motion for discovery

and inspection at Special Term (R. 140-46) was affirmed

by the Appellate Division.

On June 28, 1960, petitioner served the Commission with

a notice to admit facts pursuant to Section 322 of the Civil

Practice Act (R. 148-161). The facts set forth therein

would, if proven, conclusively establish (1) absence of Com-

mission jurisdiction, valid investigative purpose, and com-

pliance with statutory conditions to immunity; and (2)

Commission exercise of federal functions and collaboration

with federal agencies in the instant investigation, subpoena-

ing and enticement of petitioner into the jurisdiction of

New York (R. ibid.). Under New York Law, those facts

are deemed admitted, in the absence of ‘‘a sworn statement

either denying specifically the matters of which an admis-

sion is requested or setting forth in detail the reasons why

he cannot truthfully either admit or deny those matters”’,

C. P. A. § 322, except in certain situations not relevant

herein. The Commission failed to make a denial in accord-

ance with the statute (R. 162)."

Thereafter, the motion to adjudge in contempt came on

to be heard before Special Term. Petitioner opposed the

motion by affidavit (R. 163, 177) which noted the refusal to

respond to the notice to admit (R. 176, 177), reasserted his

jurisdictional challenge, asserted that the denial of deposi-

tion and discovery violated his constitutional and statutory

rights (R. 163-164) and demanded a hearing:

« * © * » decision should not be made upon the basis

of an affidavit, particularly of a generalized and in-

adequate form presented by the Commission, but

should be supported by testifnony of. witnesses sub-

ject to cross-examination by your deponent’s counsel,

with the additional protection of the granting of the

motion to take the depositions and to have a dis-

covery and inspection.’’ (R. 171)

Petitioner also challenged each of the contentions made

by the Commission. He charged, inter alia, with support-

1 Among the significant facts set forth in the notice were the

following; The Commission's intention “to prblicize in the iorm of

a public hearing respondent's * * * reliance upon his constitutional

privilege against self-inerimination™ (No. 29); that “respondent was

not apprised by the petitioner on June 22, 1960, as to the subject

matter of the investigation er as to the pertinency of any of the

questions put to the respondent” (No. 30); that “the instant investi-

gation in which the respondent was called as a witness * * * was

the result of collaboration between [the Commission] and agents of

the Federal Government including * * * the Federal Bureau of

Investigation” (No. 340; that “the [Commission’s] inquiries made

of * * * [petitioner] related to persons in counties other than those

whose prosecutors were given notice * * *” (No. 40); that in

instructing petitioner to return, the Commission did not “intend to

have respondent return to New York State for the purpose of

adducing testimony”, No. 45 (R. 148-161).

ing facts, that the Commission ‘‘is engaged * * * in active

collaboration with federal agencies”’ and that its accusa-

tions relate to ‘‘a wide variety of federal crimes in the

area of labor relations’’ (R. 167); that ‘*the Commission's

papers do not show that it has jurisdiction over the subject

matter of this investigation’’ (R. 16$) ; that its papers ‘*do

not show the pertinency of the questions’’ and that ‘‘these

questions are not pertinent to any investigation’’ (R. 168) ;

that its purpose in subpoenaing petitioner ‘‘was not the

bona fide one of carying out the purposes of the Waterfront

Commission Act and of adducing information necessary

as a basis for recommendations to the Legislatures * * *”’

(R. 169).

Denying the requested hearing, Special Term decided

the case solely upon affidavits in a short opinion, ifra, p.

29, making no fincing concerning jurisdiction, public pur-

pose, pertinency or luminosity (R. 177).

It directed petitioner’s indefinite commitment until he

answered the questions (infra, 36). The Appellate

Division, First Department, affirmed that final order. After

petitioner’s appeal as of right was dismissed, he moved

the Court of Appeals for leave to appeal from the Appellate

Division’s orders in the proceeding to adjudge in contempt

and in the application to take a deposition and discovery.

Petitioner raised, in an affidavit of counsel and in an

accompanying brief, the various issues of federal cousti-

tutional right and construction of the interstate compact

(infra, pp. 25-28).

The Court of Appeals denied petitioner’s motion for

leave to appeal from the final order in the contempt pro-

ceeding. It dismissed the motion insofar as it related to the

depositional aspect of the case.

Reasons for Granting the Writ

1. This case presents an important constitutional ques.

tion under the Fourteenth Amendment, which, it is sub-

mitted, was determined by the courts below in a manner ir-

reconcilable with this Court’s decision in Jn re Oliver, 333

U. S. 257.

The adjudication of contempt herein was made solely

upon affidavits and without a hearing which petitioner

had specifically demanded (R. 171). The denial of due

process was compounded by the withdrawal from peti-

tioner of all defensive methods normally available under

New York procedure.

Thus, he was denied the opportunity to prove his charges

through deposition and discovery. The allegations which

he set forth in his Notice to Admit were not contested and

are necessarily deemed admitted under New York Law;

none of the courts below question that fact. This case thus

presents the novel situation in which although all of peti-

tioner’s contentions are deemed admitted (supra, pp. 6, 7),

he was denied the opportunity to buttress his case by a

deposition or discovery, his demand for hearing was re-

jected, and he was adjudged in contempt cn the basis of

affidavits whose allegations he contested.

Even in cases not involving commitment to prison, this

Court has held that due process requires a fair hearing.

Morgan v. Uniied States, 304 U. S. 1; Goldsmith v. Board

of Tax Appeals, 270 U.S. 117, 123. ‘‘When the Constitu-

tion requires a hearing, it requires a fair one * ° a

Wong Yang Sung v. McGrath, 339 U. S. 33, 50. And con-

frontation and cross examination are essential ingredients

of a fair hearing:

charge against him, and an opportunity to be heard

in his defense—a right to his day in court—are basic

in our system of jurisprudence ; and these rights in-

\Ny

clude, as a minimum, a right to examine the witnesses

against him, to offer testimony, and to be represented

by counsel * * *.’’ In re Oliver, 333 U. S. 257, 273.

Even in deportation cases, an area of alien control

where the jurisdiction of the Executive has been character-

ized variously as ‘‘inherent in_ the executive power’’

(United States ex rel. Knauff v. Shaughnessy, 338 U. S.

537, 542), and ‘absolute and unqualified’? (Fong Yue Ting

vy. United States, 149 U. S. 698, 707), due process has con-

sistently been held to require confrontation and cross-

examination. Ungar v. Seaman, 4 F. 2d 80, 82 (CA 8, 1924) ;

Maltez v. Nagle, 27 F. 2d 835, 837 (CA 9, 1928) ; Svarney v.

United States, 7 F. 2d 515, 517-018 (CA 8, 1925); Sardo v.

Uctirath, 196 F. 2d 20, 22 (CA DC, 1952); see Wong Yana

Sung v. McGrath, supra, 339 U.S. at 50: cf. Jay vy. Bowl.

351 U.S. 345.

The present case presents an even more compelling

claim to a hearing since the demands of due process are

much greater in a contempt proceeding, which is quasi-

criminal in nature. This Court has declared that ‘‘due

process of law as explained in the Cooke case requires that

one charged with contempt of court be advised of the

charges against him, have a reasonable opportunity to

meet them by way of defense or explanation, have the right

to be represented by counses, and have a chance to testify

and call other witnesses in his behalf, either by way of

defense or explanation.’ In re Oliver, 333 U. S. 257 at

275, citing Couke v. United States, 267 U.S. 517.

Consistently, contempt adjudications have been preeeded

by hearings at which witnesses testified (Re Sarin, 131

VS, 267: Tinsley v. Anderson, 171 U.S. 101; Blackmer v.

United States, 284 U.S. 421. Where hearings were denied,

contempt adjudications were veeated. Cooke v. United

States, supra; In re Oliver, supra.

Zz 11

Petitioner's treatment is condemned by this Court's

decision in Hovey v. Elliott, 167 U.S. 409, where in a

different context a lower court claimed the right ‘‘to sum-

mon a defendant to answer, and then after obtaining juris-

diction by the summons, refused to allow the party sum-

moned to answer or strike his answer from the files, sup-

press the testimony in his favor, and condemn him without

consideration thereof and without a hearing, on the theory

that he has been guilty of contempt of court.”’?

“The construction of a compact sanctioned by Congress

under Art. I, £10, el. 3, of the Constitution presents a fed-

eral question. Delaware River Joint Toll Bridge Commis-

sion, Pennsulvania—New Jersey N. Colburn, supra, 310

U. S. at page 427 ° * °. Moreover, the meaning of a

compact is a question on which this Court has the final

ma To Petiv' Ss. Tennesses Missouri Bridge Comm.,

250 US. 275, 278.. This ix particularly appropriate ip view

of the active role played by the Congress in the establish.

ment of this Compact. De Vecus. Braisted, 363 US. 140.

1:96).

Pursuant to this rule, petitioner seeks this Court's con-

strnetion of the Waterfront Commission compact in two

respects: first: was he immune from precess under the

explicit terms of the Waterfront Commission Act, and

cecond, can the Commission compel testimony under a

grant of immunity where it failed to comply with the statu-

tory conditions precedent to such a grant.

a. Part II, Section 5-m of the Compact, exempts from

process any person coming into New York from New Jer-

Similarly, Colin v. Kramer, 136 F.2d 293, 298-6 (C. A. 6th,

1:43) (civil contempt). In re Rockhill, 70 F. Supp. 1465.

aT |t is of great significance”, said this Court, that “Congress

expressly gave its consent: te * * * implementing legislation not

formally part of the compact” -—-which 1s described as “unique in

the history of compacts” (De Ieau ¥. Braisted, supra, p. 134).

sey, pursuant to a Commission subpoena, if the process

is ‘‘in connection with matters which arose before his en-

trance into such state under the subpoena”’ (infra, p. 24).

The facts bere are not in dispute. Petitioner came into

Yew York on June 23, 1960, in response to the Commis-

sion’s subpoena. He was served on June 23, 1960 with an

order to show cause to adjudge him in contempt by reason

of his testimony the prior day, June 22, 1960. Conse-

quently, that service was in direct violation of Seetion

5-m. The opinion at Special Term held that petitioner had

not entered New York on June 23 because he had previously

entered it on June 17. The Court did. not explain why

petitioner ‘*must be deemed” to have made a single entry;

ner did it illuminate the *‘ purposes of applying Section

5-m’? which were aided by its conclusions (R. s4). The

statutory language supports petitioner's position. There

are no reported judicial decisions on the subject, and it is

the only one which is factually correct. The two State

appellate courts, not having written opinions, must be

deemed to have agreed wiun the Special Term. This raises

a federal question of the Compact's construction. Since

the Commission is presently engaged in large seale investi-

gations, and since bi-state agencies with similar statutes

are increasingly active, the problem posed is likely to

recur frequently and should not remain unresolved.

b. The second problem of statutory construction relates

to the conditions precedent to the grant of immunity. Under

Part I], Section 5-b of the compact, infra, pp. 23, 24, im-

munity can be granted upon notice to “tthe appropriate

district attorney or prosecutor having an official interest

therein’. Petitioner pointed out at Special Term—without

challenge—that by reason of the geographic loeation of the

activities ascribed to him, the District Attorneys of Queens

County, Nassau County and Suffolk County, among others,

were entitled to and had not been given such notice (R.

166-167). The Commission merely argued that petitioner

had immunity regardless of its compliance with the statutory

conditions. While the Commission’s inadequate notice may

save for the witness ‘‘any immunity otherwise properly

conferred on him’, it is the witness's right to insist

that he not be required to surrender his constitutional

privilege until the Commission complies strictly with its

statutory conditions: ‘*Immunity shall not be conferred

npon any person except in accordance with the provisions

of this subdivision’’ (infra, p. 24).

3. The circumstances under which petitioner was com-

pelled to appear in New York on June 23, 1961, at which

time he was served with the process instituting contempt

proceedings raise a substantial question of due process

in addition to that of statutory construction already dis-

cussed (supra, pp. 11, 12). The purported purpose of

the instruction on June 22nd to return pursuant to the

subpoena (R. 21) was to appear “as a witness and to

testify’? (R. 21, 45). The hearing of June 23rd was a pro

forma one intended to furnish a colorable basis for the

June 22nd direction to return (R. 74-75). Hence, the direc-

tion and the subpoena which it implemented were examples

of a ‘‘fraudulent pretense [whereby] a party is brought

within the jurisdiction’’. Carpenter Vv. Spooner, 2 Sandf.

717 (1850). It is settled under New York law that where

one is “enticed into this jurisdiction from another state by

fraud and deceit * * * in order that he might be served with

a summons and complaint’’, service so effected is invalid.

Neoter Mfg. Co. v. Eidinger, 250 App. Div. 504, 505 (Ist

Dept., 1939) ; Gampel v. Gampel, 114 N. Y. S. 2d 474.

Whereas misrepresentation by a private party may con-

stitute merely fraud, where practiced by a governmental

agency it represents a denial of due process. A ‘‘court will

not sanction, even inferentially. such abuse or degradation

of its process’’. Jurisdiction by Trickery: Enticement for

Service of Process, 7 Duke Law Journal 52 (1957). See

Tickle v. Barton, 142 W. Va. 188, 95 5. E. 2d 427, (1956);

Larned vy. Griffin (C.C.) 12 Fed. Rep. 590. The Commission

engaged in what this Court has in a not unrelated context

deseribed as ‘‘an indefensible sort of entrapment’’. Raley

v. Ohio. 260 U.S. 423, 426; Cf. Sorrells v. United States,

287 U.S. $35, 442. See generally Berger v. United States,

05 U. S. 78.

4. This case raises, for the first time, the sufficiency of

a grant of immunity from state, in contradistinction to fed-

eral, prosecution where the investigating agency is, (i)

created by interstate compact with congressional consent ;

(ii) its purpose and operations are instinct with vital fed-

eral interests and functions; and (iii) its investigation

of petitioner was the result of collaboration with other fed-

eral agencies, concerned with the disclosure and prosecution

of federal crimes.‘

a. There is, therefore, presented to this Court the

important question as to the nature of the compact creat-

ing the Waterfront Commission. Such an agency, this

Court has,said, ‘* performs high functions in our federalism’”’

and the ‘‘construction of a compact sanctioned by Congress

** * presents a Federal question’’ on which this Court must

make the ultimate decision. Petty v. Tennessee-Missourt

Bridge Comm., supra, at 978, See also Frankfurter and

Landis, The Compact Clause of the Constitution—A Study

in Interstate Adjustments, 34 Yale L. J. 685, 694-695 (1925).

Moreover, ‘‘once compacts are approved and ratified

and the agencies they create begin operations, direct rela-

4 Petitioner's argument herein is contrary to that of petitioners

in De leun v. Eraisted, 363 U. S. 144, and Murphy v. Waterfront

Commission, Oct. Term 1961, No. 362, cert. den. 30 L. W. 3144,

that the Commission is a state agency whose functions were pre-

empted by other federal legislation.

tions between them and federal executive departments be-

come common * * °.’’ Leach, The Federal Government

and Interstate Compacts, 29 Ford. L. Rev. 421, 431 (1961).

They unite ‘‘the powers 901 the national government with

those of a group of states through a single mechanism.”’

Zimmerman and Wendell, The Interstate Compact Since

1925 (p. 8).

A further significant aspect of the federal attributes

of an interstate compact is that a state statute which con-

flicts with an interstate compact is involid and unenforce-

able. Green v. Biddle, 8 Wheat, (21 U.S.) 1: State v. Hoof-

man. 9 Md. 28 (1856): President. Managers C. v. Trenton

City Bridge Co.,.13 N. J. Eq. 46 (1860) ; Stale v. Faudre, 54

W. Va. 122, 146 S. E. 269 (1903). The federal aspect of the

compact is shown further by Congressional ability to ‘*pro-

vide, in certain eases, for enforeement of the terms of the

compact by national agencies until a recafeitrant state

enforeed them.’’ The Interstat: Compact Since 1925, supra,

at p. 56.

Upon this Court’s construction of the compact, see

Petty v. Tennessee-Missouri Bridge Comm., supra, it will

appear, we believe, that the Commission is at least quasi-

federal in character, that it is investigating federal crime.

Cf. DiCarlo vy. United States. 102 F. Supp. 597 (XN. D. Ohio,

1952). If so, its power to compel testimony in the face of

danger of federal prosecution is no greater than that of a

federal grand jury. See ['lbnan s. I’nited States, 356 U.S.

422. °

b. However, should the Court determine that this is a

state agency totally without federal functions, it will then

reach the issue left open in Knapp V. Schweitzer, namely,

whether in a case of ‘collaboration between state and fed-

oral officers the defendant could successfully assert privi-

lege in the state proceeding’? (307 U. S. 371, 380). For here,

unlike

the situation in Knapp, the Commission is being

‘used as an instrument of federal prosecution or investiga-

tion.’’ (supra at 380).

Under these circumstances, the decision below is in prin-

ciple in conflict with

United States, 338 U.

U.S. 28. Since the

with federal agencies,

violate petitioner’s (pr

ifth Amendment as well as the Four-

guarante d by the F

this Court’s decisions in Lustig v.

74, and Byars v. United States, 273

ommission was in fact collaborating

the compulsion to testify here would

ivilege against self-incrimination

teenth Amendment. In addition, it would constitute an

unreasonable search and seizure which under the decisions

would be a violation |

Wolf v. Colorado, 33

States, 364 U. S. 206

The federal charac

ration in this case ¥

mit a reversal of th

Court’s decisions in

Feldman v. United St

ana, 360 U. S. 230. Ne

etitioner would seek reconsideration

without limitation, p

by the Court of the

public importance a

this Court justifies a

appealing context of

nation: the External

of the Fourteenth Amendment. See

8 U. S. 25, 27, and Elkins v. United

ter of the Commission and its collabo-

4th other federal agencies will per-

e orders below consistent with this

Knapp v. Schweitzer, 357 U. S. 371,

tes, 322 U. S. 487 and Mills v. Louisi-

vortheless, if certiorari were granted

issues raised in those cases. Their

the close division on the subject in

further analysis of the problem in the

this case. See Kroner, Self-Incrimt-

Reach of the Privilege, 60 Col. L. Rev.

816 (1960).

This is particularly true since the Commission has

now instituted contempt proceedings in New Jersey against

other persons to whom it has proffered state, not federal,

immunity. In the Matter of the Application of the Water-

front Commission of New York Harbor to Punish John

Moody, Sr. For Failure to Obey a Subpoena (Superior Court

of New Jersey, Law|Division, Hudson County).

5. a. This case presents for the first time the applica-

tion of the due process clause to investigations conducted

under an interstate compact. The important question here

is whether the requirements of due process, declared by this

Court to ve applicable to congressional committees, should

not also be applicable to such agencies performing *‘high

functions in our federalism.’’ Petty v. Tennessee-Missours

Bridae Comm., 359 U.S. 275 at 279.

Thus, the Waterfront Commission was required as a

matter of due process to apprise petitioner at the time

of his appearance of the subject matter of the inquiry and

of the Commission’s jurisdiction thereof (R. 23-43). Wat-

kins v. United States, 354 U. S. 178, 214; Sacher v. United

States. 3536 U. S. 576, 578. Sve to the same effeet. Kilbourn

y. Thompson, 103 U.S. 168; Matter of Barnes, 204 N. Y. 108.

These factors appear to be lacking in the instant case.

The ‘‘onmission’s own hearings are silent as to purpose,

svtyect matter and the pertinency of the particular ques-

tions, see Watkins v. United States, 354 U.S. 178, 214. It

was not until the contempt proceedings that it made even a

yeneralized statement as to its purpose namely, ‘‘to deter-

mine the extent of crimiral influences in the I. L. A., which

represents all longrhoremen and checkers in the Port of

New York’? (R. 15). This hardly established pertinency

in view of the fact that petitioner had never been con-

vieted of crime and that the Loeals with which he

was connected were not waterfront locals subject to the

Commission's jurisdiction (R. 168). Not only did the

Commission not seek to establish the pertinency of any

particular question, but some of the questions on their

face—those dealing with strikes in other industries—had

nothing whatsoever to do with the waterfront (R. 6).

In the light of the direct challenge made by petitioner

to such matters as jurisdiction, pertinency and luminosity

it was the duty of the Court at Special Term to make a

determination of pertinency as to each of the questions

which were the basis for indefinite commitment. Its failure

to exercise that judicial function compounded the denial

of due process.®

b. Assuming, arguendo, that the Commission was a&

purely state agency, there would still be presented the

problems of compliance with the due process clause of the

Fourteenth Amendment. This Court has three times in

recent years vacated contempt convictions arising from

state investigations where substantial claims of violation

of due process were upheld. Scull v. Virginia, 359 U. S.

344: Sweezy v. New Hampshire, 354 U. S. 234; Raley v.

State of Ohio, 360 U. S. 423. See also Gibson v. Florida

Leqislative Investigation Committee, No. 70, October Term

1961.

The instant case presents many of the defects causing

reversal in the above cited cases. For example, if in Scull,

‘the purposes of the inquiry, as announced by the Chair-

man, were so unclear * * *,’’ (359 U.S. 353), what should be

said of the instant case where no purpose was stated to the

witness? A state investigation conducted solely for pub-

licity purposes is no more consistent with due process than a

similarly intended federal one. A finding of pertinency

is ax necessary to due process in a state investigation as

in a federal one.

While this case does not involve the issues of political

association now before the Court in Liveright v. United

States, No. 11, October Term 1961, and the related cases,

‘t raises fundamental issues of due process which affect

all governmental investigations.

3 Even in Uphaus v. Wyman, 360 U. S. 72, the state courts passed

upon the pertinency of the particular questions.

Conclusion

This case involves the interaction of two federal prob-

lems not previously presented to the Court: the construe-

tion of an interstate compact, and its use to deprive a

citizen of his constitutional privilege against self-incrimina-

tion, his right to due process and his right to defend himself

in a quasi-criminal proceeding. This confluence of im-

portant problems which may be expected to arise frequently

in a period of increasing covernumental investigation now

calls for consideration by this Court,

For these reasons, the petition for certiorari should

be granted.

Respectfully submitted,

Lronarp B. Bounty,

Victor RasinowIrz,

Attorneys for Petitioner,

25 Broad Street,

New York 4, N. Y.

Raninowirz & Bovuviy,

ARTHUR SCHUTZER,

Of Counsel.

Dated, November 12, 1961.

APPENDIX A

The Constitutional Provisions and

Statutes Involved

ConsTITUTION OF THE UNITED STATES

ArticLe 1, Section 10, CLAUSE 3

No State shall, without the Consent of Congress, lay

any Duty of Tonnage, keep Troops, or Ships of War in

time of Peace, enter into any Agreement or Compact with

another State, or with a foreign Power, or engage in War,

unless actually invaded, or in such imminent Danger as

will not admit of delay.

Firtuy AMENDMENT:

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

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the

land oc naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offence to 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 public use,

without just compensation.

SixtH AMENDMERXT:

In .all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury

of the State and district wherein the crime shall have been

committed, which district shall have been previously ascer-

tained by law, and to be informed of the nature and cause

of the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining

Appendir A

witnesses in his favor, and to have the Assistanee of Counsel

for his defence.

PouRTEENTH AMENDMENT:

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they reside.

No State shall 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 per-

son within its jurisdiction the equal protection of the laws,

Tire Act or Avoust 12, 1953, c. 407, 67 Strat. 541

The consent of Congress is hereby given to the compact

set forth below to all of its terms and provisions, and to

the carrying out and effectuation of said compact, and enact-

ments in furtherance thereof * * *.

Tue WateERFRONT COMMISSION COMPACT

WaterFRONT ComMisston Act, Part I, McKixsey's

UsxconsuLipaATEeD Laws, SecTIox 9810 (FORMERLY 6700-dd).

In addition to the powers and duties elsewhere pre-

scribed in this compact, the Commission shall have the

powers:

* e ®

8. By its members and its properly designated officers,

agents and employees, to administer oaths and issue sub-

poenas throughout both states to compel the attendance

of witnesses and the giving of testimony and the production

of other evidence;

Appendix A

Warterrront Commission Act, Part I, McKixxey

Uxconsouipatep Laws, Section 9862

(Former.ty 6700-nn)

* * *

1. The failure of any witness, when duly subpoenaed

to attend, give testimony or produce other evidence, whether

or not at a hearing, shall be punishable by the superior

court in New Jersey and the supreme court in New York

in the same manner as said failure is punishable by such

eourt in a case therein pending.

Warerrront Commission Act, Part I, McKunney’s

Uxconsouipatep Laws, Section 9810

(Formerzty 6700-dd)

In addition to the powers and duties elsewhere pre-

scribed in this compact, the commission shall have the

power:

@ s e

(11) To make investigations, collect and compile

information concerning waterfront practices gener-

ally within the port of New York district and upon

all matters relating to the accomplishment of the

objectives of this compact;

(13) To make annual and other reports to the

governors and legislatures of both states containing

recommendations for the improvement of the con-

ditions of waterfront labor within the port of New

York district, for the alleviation of the evils de-

scribed in article I and for the effectuation of the

purposes of this compact. Such annual reports shall

state the commission’s finding and determination as

to whether the public necessity stiil exists for (a)

the continued registration of longshoremen, (b) the

continued licensing of any occupation or employment

required to be licensed hereunder and (c) the con-

tinued public operation of the employment informa-

tion centers provided for in article XII;

Appendir A

Wark. :oxr Comission Act, Part TH, McKinsey

Usconsouipatep Laws, Section 9906

(FormeERLY 6700-tt-2)

(Section 5-b or THE Compact)

Additional powers of the commission.

In addition to the powers and duties elsewere described

in this act, the commission shall have the following powers:

* * .

5. To confer immunity. in the following manner:

In any investigation, interview or other proceeding

conducted under oath by the commission or any duly

authorized officer, employee or agent thereof, if a

person refuses to answer a question or produce evi-

dence of any other kind eu the ground that he may

be ineriminated thereby, and, notwithstanding such

refusal, an order is made upon twenty-four hours’

prior written notice to the appropriate attorney

general of the state of New York or the state of New

Jersey, and to the appropriate district attorney or

prosecutor having an official interest therein, by the

unanimous vote of both members of the commission

or their designees appointed pursuant to the provi-

sions of seetion three of article TIT of this act, that

sueh person answer the question or produce the evi-

dence, such person shall comply with the order.

If such person complies with the order, and if, but

for this subdivision, he would have been privileged

to withhold the answer given or the evidence pro-

duced by him, then immunity shall be conferred upon

him, as provided for herein.

“Tmmunity’? as used in this subdivision means

that such person shall not be prosecuted or subjected

to any penalty or forfeiture tor or on account of any

transaction, matter or thing econeerning which, in

accordance with the order by the unanimous vote ot

both members of the commission or their designees

Appendix A

appointed pursuant to the provisions of section three

of article III of this act, 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 subjected to penalty or forfeiture for

any perjury or contempt committed in answering,

or failing to answer, or in producing or 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 procecd-

ing concerning such perjury or contempt.

Immunity shall not be conferred upon any person

except in accordance with the provisions of this sub-

division. If, after compliance with the provisions of

this subdivision, a person is ordered to answer a

question or produce evidence of any other kind and

complies with such order, and it is thereafter deter-

mined that the appropriate attorney general or dis-

trict attorney or prosecutor having an official inter-

est therein was not notified, such failure or neglect

shall not deprive such person of any immunity other-

wise properly conferred upon him.

Waterrroxt Commission Act, Part II, McKinsey

Uncoyxsouipatep Laws, Section 9917

(Former.y 6700-tt-13)

(Section 5-m or THE CoMPACT)

Exemption from arrest and service of process:

If a person, in obedience to a subpoena, issued pursuant

to article four or article eleven of the compact directing him

to attend and testify, comes into either state party to this

compact from the other state, he shall not, while in that

state pursuant to such subpoena, be subject to arrest or

the service of process, civil or criminal, in connection with

matters which arose before his entrance into such state

under the subpoena.

APPENDIX B

Further Statement of Manner in Which Federal

Questions Sought to Be Reviewed Were Raised

Cross-Notice of Motion to Vacate Service:

(a) The said respondent was exempt from serv-

ice of the said order to show cause by reason of the

provisions of the Waterfront Commission Act, Part

If, Section 5-m, McKinney Uneonsolidated Laws,

Seetion 6700-11-13; and

(b) The said respondent was enticed by the ap-

plicant, Waterfront Commiss=ion of New York Har-

bor, into the State of New York for the purpose of

service of the said order to show cause; and for

such other and further reliet as to this Court) may

seem just and proper (R.68-69).

Motion for Deposition and Discovery.

The Order to Show Cause sought deposition and dix

covery with respect to the following matters:

1. The subject matter of the investigation and

whether it was within the Commission's jurisdiction.

» The Commission’s purpose in subpoenaing

respondent.

3. The Commission’s compliance with the statu-

tory conditions precedent to the crant of immunity.

4. The nature of the Commission as a federal

instrumentality by reason of its functions and ac-

tivities.

5. The Commission’s collaboration with agents

of the United States Government in the investigation

of respondent and of the International Longshore-

- men’s Association and locals thereof, and in the

Appendir B

issuance of a subpoena to him, the service of process

upon him and the purported grant of immunity to

him.

6. The pertinency of the particular questions put

to respondent to the subject matter of the investiga-

tion and whether the Commission made clear to

respondent the said subject matter and pertinency

at the time of the alleged contempt.

7. The Commission’s purpose in directing your

deponent on June 22, 1960 to return for the alleged

purpose of examining him further on June 23, 1960

and the Commission's deceit and misrepresentation

in this respect (R. 88-89).

3. Affidavit in Support of Motion for Deposition and

Discovery:

the purp»se of conducting a public session June 22,

1960 was therefore an improper one and solely for

the purpose of exposing your deponent and violating

his right of privacy (R. 93).

11. Your deponent will also take the position

that under the United States Constitution and as

applied to the facts in this case, notice was required

to be given to the federal prosecuting officials and

that in the absence of a grant of immunity by them,

the Commission could not compel your deponent's

testimony. The reasons for this contention are the

following:

(a) Your deponent submits, upon information and

belief, that the subpoenas issued to him were the

result of collaboration between the Commission and

the representatives of the Justice Department,

Appendir B

National Labor Relations Board, and other federal

agencies. Such collaboration with federal officials

is contemplated by the Waterfront Commission Act

and‘is referred to in annual reports of the Commis-

sion.

(b) Upon information and belief the whereabouts

of your petitioner for the purposes of the service of

process were the result of reports by agents of the

Federal Bureau of Investigation to the Commission.

is in fact a federal instrumentality and is engaged in

a number of functions on behalf of the United States

Government and receives federal funds (R. 96-97).

Affidavit in Opposition to Motion to Adjudge in Con-

tempt:

It is thus presently impossible for me to make a

full factual presentation in defense of my position

in these proceedings, for, as the affidavits indicate,

much of this evidence is within the sole control and

possession of the Commission and possibly of other

government agencies, and much of it is in docu-

mentary form. Certain of these records and papers

have been requested of the Commission, as appears

from my affidavit of July 26, 1960 in support of the

then pending motion to take the Commission's

deposition, The said affidavit) and the exhibits

annexed thereto are incorporated herein with the

same foree and effect as though specifically set forth

herein, I respectfully submit that to compel me to

proceed under these circumstances constitutes a

denial of due process.

First, I respectfully submit that the Court is with-

out jurisdiction over my person because I was exempt

from service of the order to show cause instituting

Appendix B

this proceeding under the Waterfront Commission

Act, Part II, Section 5-m, MeKinney’s Unconsoli-

dated Laws, Section 5700-tt-13 * * * (R. 163-164).

Secondly, the Commission seeks to compel my

testimony notwithstanding my claim of my con-

stitutional privilege against self-incrimination * °* °

(R. 164).

@ e eo

The Waterfront Commission is engaged, accord-

ing to its annual reports, in active collaboration with

federal agencies. Accusations of the Waterfront

Commission in this case as well as in a series of other

cases in New York and in New Jersey included, upon

information and belief, a wide variety of federal

crimes in the area of labor relations. The Water-

front Commission is the result of said legislation

approved by the Congress of the United States. It

is specifically provided in the Waterfront Commis-

sion Act that in certain respects it fulfills functions

as an agency of the United States Government. I am

advised by counsel and believe that under these cir-

cumstances immunity against federal prosecution is

@ prerequisite to compulsion of testimony.

Fourthly, the Commission’s papers do not show

that it has jurisdiction over the subject matter of

this investigation (R. 167-168).

Fifthly, your deponent respectfully submits that

the Commission’s purpose in subpoenaing your

_deponent was not the bona fide one of carrying out

the purposes of the Waterfront Commission Act

°° (R. 169).

APPENDIX C

Opinion at Special Term

Application to punish the respondent as and for a con-

tempt, for refusal to testify on June 22, 1960, pursuant to

a duly served subpoena of the commission is granted.

The objections raised by the respondent are overruled as

net being available under the circumstances or as having

been disposed of by previous and controlling court: pre-

cedents. Settle order.

APPENDIX D

1. Order of ¢

STATE OK

In Court

Court of Appeals

’ NEW YORK

r OF APPEALS

At a Court of Appeals for the State of New

York, held at

City of Alban

A. D. 1961.

Present:

How. Cuarves S. Des™

Chi

Court of Appeals Hall in the

vy on the Fifth day ¢? October

[OND,

ef Judge, Presiding.

Mo.

In the

the Application of the

New Y¢

Order Di

For an

" ANTHON

For (

No. 453

Matter of

WatTERFRONT COMMISSION OF

bRK HARBOR, ©

Respend-nt,

recting Punishment of

y MaRrcuHITTO,

Appellant,

yntempt &e.

A motion for leave to aj

—

peal to the Court of Appeals in

the above cause having been heretofore made upon the part

of the appellant herein and papers having been submitted

thereon and due deliberati

it is

on having been thereupon had,

Appendix D

Orverty, that the said motion, insofar as it seeks leave

to appeal from the contempt order, be and the same hereby

is denied, and it is

Orveren, that the said motion, insofar as it seeks leave

to appeal from the order denying appellant the right to

discovery, be and the same hereby is dismissed.

A copy

GEARGON KIMBALL,

Deputy Clerk.

(Seal)

2. Order of Supreme Court, New York County,

Special Term

At a Speeial Term of the Supreme Court, Part

1 thereof, held in and for the County of New

York at the Court House thereof, in the Bor-

ough of Manhattan, City, County and State

of New York, on the 20th day of March, 1961.

Present:

Hox. Owen MeGivers,

Justree,

[Same Tirie]

A motion having duly come on by order to show canse

before this Court on the 10th day of October, 1960, for an

order to punish Anthony Marchitte as and for a com empt

of Court pursnant to provisions of Section 1 of Articl.s XTV

of the Waterfront Commission Compact for failure to

testify before the Waterfront Commission of New York

Harbor, pursuant to a subpoena duly issued by the Water-

Appendix D

front Commission of New York Harbor and duly served

on Anthony Marchitto, together with such other and fur-

ther relief as may be just and proper,

Now, upon reading and filing said order to show cause

dated June 23, 1960, signed by Mr. Justice Morris k.

Spector, and the affidavit of William P. Sirignano, Esq.,

sworn to June 23, 1960, and the exhibits annexed thereto,

to wit, the affidavit of service of the aforesaid subpoena by

Gerald V. Clarke, sworn to June 10, 1960, the copy of the

aforesaid subpoena annexed thereto, a copy of the reso-

lution of the Waterfront Commission authorizing public

hearings, certified on June 15, 1960 by George 4. Merrill,

Jr., Seeretary of the Waterfront Commission of New York

Harbor, and the transcript of the testimony of Anthony

Marchitto before the Waterfront Commission on June 22,

1960, and Exhibits 56A-56H annexed to said transcript,

and the additional affidavit of William P. Sirignano, Esq.,

sworn to August 10, 1960, all in support of said application

of the Waterfront Commission of New York Harbor to

punish Anthony Marchitto as for a contempt of Court, and

due proof of service thereof, and the affidavit of Anthony

Marchitto, sworn to August 19, 1960, and the exhibits

annexed thereto, to wit, the copy of said Anthony Mar-

chitto'’s notice of motion to set aside the service herein, a

copy of said Anthony Marchitto’s notice to admit fucts,

and a copy of the Waterfront Commission's reply to notice

to admit facts, in opposition thereto, and after hearing

Irving Malchman, Esq., Assistant Counsel of the Water-

front Commission of New York Harbor, in support thereof,

and Leonard B. Boudin, Fsq., attorney for said Anthony

Marchitto, in opposition thereto, and due deliberation hav-

ing been had, and the decision of the Court filed herein,

Now, on m tion of William P. Sirignano, Esq., general

counsel and attorney for the Waterfront Commission of

New York Harbor, it is

Appendix D

Orperep, that said Anthony Marchitto is hereby ad-

judged guilty of contempt of Court for his contumacious,

wilful and unlawful refusal to answer certain questions

before the Waterfront Commission of New York Harbor

as required by the aforesaid subpoena of the Wategfront

Commission of New York Harbor dated June 9, 1960,

to wit: ;

1. Q. ‘What is vour present occupation, Mr.

Marchitto?’’

2. @. **Mr. Marchitto, were you ever an officer

or a trustee of Local 1478?”"’

3. Q. **Do you know Frank Campbell?”’

4. Q. ‘*Were you associated with Frank Camp-

bell in connection with Local 1478?"’

5. Q. ‘tAre you an officer of Loeal 18232"

6. Q. **Do you know Joe ‘Heels’ Murphy?’’

7. Q. ‘*Were you associated with Joe ‘Heels’

Murphy in the running of Local 1828, ILA?”

8. Q. ‘Did you engage in’strike-breaking activi-

ties with Frank Campbell and Joe ‘Heels’ Murphy

in 1959 during the Bloomingdale strike?"’

9, Q. ‘*Did you engage in strike-breaking activi-

ties in connection with Whelan’s Drug Store strike

in 1959?’

10. Q. ‘*Did you have access to the books of

Locals 1478 and 1823 prior to October, 1958?"’

11. Q. ‘Did you have access to the funds of

Locals 1478 and 1823?’’

12. Q. ‘*Do you know Fred Baron,’’

and it is further

Appendix D

OrpereD, that the said refusal of said Anthony Mar-

chitto to answer the aforesaid questions was calculated to

and actually did defeat, impede, impair and prejudice the

rights and remedies of the Waterfront Commission of New

York Harbor herein, and it is further

Orperev, that said Anthony Marchitto for his miscon-

duet shall be fined the sum of two hundred and fifty dollars

($250) to be collected and paid over to the Waterfront Com-

mission of New York Harbor, and it is further

Orperep, that said Anthony Marchitto is hereby directed

to appear and attend forthwith at the offices of the Water-

front (ommission of New York Harbor at 15 Park Row,

New York, New York, and to submit to examination by the

members of the Waterfront Commission, or their designees

appointed pursuant to the provisions of section three of

article IIL of the Waterfront Commission Act, upon the

aforesaid questions; and it is further

Orperep, that the Sheriff of any County to whom a cer-

tified copy of this order shall be delivered, shall forthwith

on receipt thereof, and without further process, take the

body of said Anthony Marchitto, and forthwith, commit

and impricon him in the jail of said County where he shall

remain until he shall have answered the aforesaid questions

and until he shall have paid fines as aforesaid, or until he

is discharged according to law.

O. McG.,

J. 8. €.

Filed: March 20, 1961.

N.Y. Co. Clerk’s Office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.