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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1962
- **Citation:** 368 U.S. 954

## Text

"+ COURT, wif, FILED

t re >» f , ]
4 EDA ARY Office-Supreme Court. U “|

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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

li

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

10

17

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

iv

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) ....

14

14

16

15

15

IN THE

Supreme Court of the United States

October Term, 1961
No.

4y
—~-

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.

to

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

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-

4

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-

6

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:

© © * A person’s right to reasonable notice of a
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

a

10

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).

12

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.

13

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

14

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.

15

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

16

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).

17

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

>

18

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.

19

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.

20

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;

22
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;

23
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

24
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.

33

APPENDIX B

Further Statement of Manner in Which Federal
Questions Sought to Be Reviewed Were Raised

as

»

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

26
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:

6. * * © It is and was your deponent’s belief that
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,

4.

=~
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.

(c) Upon information and belief 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

28
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).

29

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.

30

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,

31
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-

32
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

33
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

34
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0037%3A2. Public record. Not legal advice.