Petition for Writ of Certiorari — Ottawa Tribe v. United States

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Office-Supreme Court, US.

FILED

JUL 21 19

me 1d...

Supreme Court of the Anited States

Ocroser Term, 1964

—— nH A*

. SAMUEL D. CARTHAN, :

acer Petitioner,

—against—

SHERIFF, CITY OF NEW YORK,

Respondent.

owe ——————

—sT —

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

‘THE SECOND CIRCUIT © .

Evserorr, NewMan & SoNENSHINE,

Attorneys for Petitioner, :

Office & Post Office Addr ess, —

186 Joralemon Street, an

* Brooklyn 1, New York.

UL 5-1111

Witt1aM SoNENSHINE,

Mémber of the Bar of the

Supreme Court of the

‘United States,

Of Counsel.

TABLE OF ‘CONTENTS.

Opinions BElow.....¢s.cescecccese iaiedannecee

JURISDICTIONAL GROUNDS IN THIS COURT......4.-00066 °°

QUESTIONS PRESENTED .......-0+-00005eeeee eens arg

ConsTITUTIONAL PROVISIONS AND ‘STATUTES INVOLVED. .

Facts MATERIAL To THE QUESTIONS PRESENTED. ...... ‘

JURISDICTIONAL GROUNDS IN THE District Courr,.... -!

ARGUMENT:

I. Section 1123 iii Section 903) of the

New York City Charter is Unconstitutional,

and Consequently, the Waiver of’ Immunity

Executed under its Compulsion is Invalid and

Inoperative esas Ci chakeatéxuseeesenases .

II. The Grand Jury in Kings County Has No

___ Pewer-to Compel the Production of Either

Federal Tax Returns or New York State Tax

Returns CRIN on Ry Bane ey pen VP aney So ee

_ Conciu Se eee os Se aie aia i e i pee

APPENDICES:

(A) Opinion of the United States Court of Ap-

WOU s:. hdachde ene cdevcdsmensaesatesae des

-(B) Opinion, New York Supreme Coun: Kings

County... .. eee eee eet eee eee tence teens

" PAGE

a oa Ff WO DY

ee pe ee TABLE 0: CONTENTS *

. PACE

-(C) New York State Tax Law, (384... .-.-+-- a oe

(D) Petition for Writ of Habeas Cofpus aanees 33:

(E) U.S. Code, Title 28, 69008... <<: Geaissanteae _ 39

(E) U.S. Code, Title 28, §2254.......- I Tae

} Cases Cited )

Application of Manufacturers Trust. Co., 269 App.

Div. 108. sige ace aaa accu scat aR 17,18

Cohen v. ‘Hurley, 366 U. Ss. oP SIRE CORE See v8, 14.

McGowan V. Marylanti, 366'U. S. 420,....-: ee SF 15

People v. Isaac G. Johnson & Co., 213 ‘App. Div 402.. 17

Slochow er Vv. Board of Education, sai U.S. — pee 8-12

Steuding ; People v., 6 N N. Y. 2d 214. es Per eee. eS

Torasco v. Watkins, 367 U. e:...:. 2 Claes eae

me if 8. v. Ullman, 300 U.S. | eee Senngeayeaneats ¥2

U. S. v. Baltimore Post | Co. ie 2d 761, a d 268

vU ARRON Pr ee Le he eadendinda ae 15

. AWVieman Vv. Updegraff, 344 U. §: 108.,...; FNCU tae ae

"Statutes: Cited

New York City Charter, Se ction 11 23. a = ° ‘, 12, 13, 15

New York State Tax Law, Section 384. : Seesxeease ys 16

United States Code, Annotated, Title 26, Section 6103 2

5 eoenunen®

nnn ceca ata a

Supreme Court af the Buited States

“Qorose Team 1964 °

No.

| oe : é i : 7*

SamvugeL D. CarTHAN, «

Petitioner,

. —against—

SHERIFF, €1ry or New York,

Ges Respondent.

L - e

PETITION FOR A WRIT OF CERTIORARI TO THE

. UNITED STATES COURT OF APPEALS FOR

y, ai THE SECOND CIRCUIT

To thie: fitoncrable, the Chief Justice a the United ‘States,

and the Associate Justices of the Supreme. Court of the.

United ‘States:

The above-named petitioner respectfully prays this Court |

fora writ of certiorari to the United States Court of Ap- -

peals’ for the hemente Cireuit, as. follows: —

A. Opinions Below

The United States Court of ‘Gina for the Second Cir-

cuit, by judgment entered on April 6, 1964, unanimously

affirmed an order of the United States District Court on 7

: rs

the Eastern District of New York denying the abov e-named

petitioner’s petition for a writ of habeas corpus. “The order

of the United States District Court was entered in that

- Court on November 20, 1963. No’ = ‘was — in

connection therewith.”

The opinion of the United States Court of _* for

the Second Circuit (reported at 330 F. 2d 100). is set forth’

in Appendix. A hereto. Also ‘appended hereto i8 a copy.<_

of the opinion. of Mr. Justice Mizes F. McDona.p, a Jus-

tice of the Supreme Court of the State of New York, County .

of Kings, preceding the holding of this petitioner in con-

tempt of that Court by order dated December 17, 1962.

Said order of contempt is the ynderlying order directing

- petitioner’s imprisonment ‘and fine, which was the subject

matter of the writ of habeas corpus in the United States

District Court as aforesaid. The opinion of Mr. Justice

MoDonatp is reported unofficially at 234 N. Y. 8S. 2d 64

and is appended hereto as Appendix B. <

There were no other opinions w ritten in any ; othe ‘r Courts

which considered this case as hereinafter set forth.

B. The Grounds on Which the Juriediction of This Court

. *Is Invoked.

Jurisdiction ‘of this Court®is invoked ‘endioe Title 2g, 5

§1254, subdivision 1 of the United States Code, and under

* Rule 19, subdivision 1, of the Rules of this Court.

Time to file this petition was extended to August 17, 1964,

by the Honorable Jonn M. Haran, an Associate J ustice

of this Court, ‘by order. dated June 30, 1964.

The. judgment sought to be fteviewed herein is the judg-

ment of the United States Court of Appeals for the Second

Circuit entered on April 6, 1964, as aforesa.d.

Cc. ‘The Questions Presented for Review.

Does ¢ ‘1123 of the New York City Charter (set forth

in full in Appendix C of this petition) violate the

Fifth Amendment to the United States Constitution —

_by providing that New York City employees who re-

fuse. to partially” waive their privilege against self-

| incrimination before a Grand Jury must, as a con-

sequence, automatically forteit their position and

employment? rs ee

Is such section unconstitutional in that it wold de- —

prive petitioner of his liberty and property without

due process of law ‘under the Fourteenth Amend-

ment to the United States Constitution by compel-_

ling him to partially waive his privilege against self-

- inerimination or forfeit his position and employment

and thereby affect his property rights in and to the

pension provided for him by the City of New York?

Is such section unconstitutional in that it operates to

arbitrarily deprive petitioner of due process of law

and the equal protection of tie laws under the Four-

teenth Amendment to the United States Gonstitution

-by mandating his loss of employment upon refusal

to execute a limited waiver of his constitutional pfivi-

lege against self-inerimination irrespective of wheth-

_er or not he has been in fact guilty of any wrong-

, (4),

. forth below .furnish a lawful basis for a State to .

doing? :

May the exercise of the privilege epitiant itteatel.

nation after having executed a w ritten limited waiver

of said privilege in the circumstances more fully set

punish by imprisonment and” monetary fine the as-

sertion of said privilege as a contempt of vet

_ (3): May the refusal to produce income tax réturns upon oo

*\s the grounds aforesaid before a Grand Jury furnish

a basis for imprisonment as a contempt of Court .

where the petitioner had previously waived immunity

but asserts that the section of the New York City

Charter is unconstitutional in compelling his limited

waiver of immunity as an alternative to forfeit.ng his:

employment? = . e?

° a

.- «

(6) May a Grand Jury, in any circumstances, lawfully.

~ compel the production of Federal or New York State

income tax returns? ee ae

In connection with the foregoing, it is respectfully urged, -

for the reasons and upon the facts hereinafter set forth,

that the issues involyed herein have resulted in a decision

by a State Court upon Federal questions of substance not

theréetofore determined by this Court..and: probably not in

accord with applicable decisions of this Court. It is fur-

ther respectfully urged that the Court of Appeals for the

Second Circuit has decided, by its:decision below, important

questions of Federal law which have: not -been, but should

_-~— be, settled by this-Court, and has decided Federal ques-

tions in a way I conflict with applicable decisions of this

’ Court... | | Baca

D. Constitutional Provisions and Statutes Involved. ;

(1) The coustitutional provisions involved: are the Fifth-

cand Fourteenth Amendments to, the United States: -

Constitution. | ic Phe ae

(2), The statutes ifivolved are $1123 of the New York

— S@ity Charter, $384 of the New York State Tax-Law,

- and 66103 of Title 26 of the United States Code.

All of the foregoing are set forth in Appendix C to this’

petition. : . dss hoes |

3 .

E. A Concise’ Statement of the Case and Material Facts.

~ Pertaining to the Consideration of the Questions Pre-

(1)

Petitioner is an employee of the City of New York,-—

to wit: a plastering: inspector employed in its De-

partment of Buildings. |

Petitioner Was subpoenaed before a Grand Jury in

Kings County which had commenced an inquiry into

- whether érimes were committed in connection with |

(3)

-the direction of the |

the construction of certain residential homes in

Kings County. Rather than forfeit his position, peti-

tioner ‘executed a limited waiver of immunity and ~

commenced testimony before ‘said Grand Jury. At

Grand Jury he submitted a com-,.-

pleted questionnaire as to his financial resources and

income during the years 1959, 1960 and 1961..

Thereafter, petitioner was served with a subpoena

: duces tecum directing him to produce for the Grand

“waiver. ©

: Jury, his Federal and New York State income tax

- . yeturns for the yéars 1959, 1960 and 1961.

(4)

Petitioner appeared before ‘said Grand Jury in re-

sponse td said subpoena and declined to furnish said

jncome tax returns, alleging that he was not required

by law so to do for the reasons set forth in his peti-

tion for a, writ of habeas corpus (Appendix D).*

‘He further statéd-to the Grand Jury that the Waiver

of immunity was executed by him under the ,com-

pulsion imposed by’ the New York City Charter,

61123, which mandated that he forfeit his employ-

ment in the event of his refusal to execute such a

- * The facts alleged therein were conceded by the District Attorney —

> in the District Court.

(5) Thereafter, and on December 17, 1962, petitioner was

adjudged in criminal contempt of the Supreme Court

of the State of New York by. reason of his refusal

to produce said tax returns and was sentenced to

a term of imprisonment pf 30 days and a fine of $250

or.an additional -30. abe’ imprisonment in default

of said payment. aie ee ho ae ee

(6) Said order of contempt was affirmed on appeal with- -

out opinion by the Appellate Division of the Supreme

Court of the State of New York, Second Judicial

Department. A simultaneous petition for a-writ of

habeas corpus to the aforesaid Appellate Division

was also dismissed. <A further application to the

» Court.of Appeals of the State of New York for leave

=> to appeal to that Court was denied. Petitioner -thus

‘exhausted all his remedies in the courts of the State

of New York. ,

(7) A petition for a writ ef habeas corpus was there-

upon brought in the United States District Court

for the Eastern District of New York. on November

20, 1963, which petition was denied on said date by

the Honorable Watrer Brtcuuavsen, a Judge of

said Court.

(8) Thercafter a timely appeal was taken to the Cnited

* States Court of Appeals for the Segond Cireuit, and

on April 6.°1964, the said Court handed down its |

decision affirming the decision of ‘the District Court.

Judgment to that effect in the United States Court

of Appeals was entered on said date.

P | .

F. Basis for Jurisdiction in the United States District

Court. : x y

* Jurisdiction in the United States District Court for the

Eastern District of New York was predicated upon §§2241

7 ‘

and 2234 of Title 28 of the United States Code. Said sec-

tions are set forth heréin in Appendix E.

G. Argument Amplifying the Reasons Relied on for the

Allowance of the Writ. | °

POINT 1.

Section 1123 (formerly Section 903) of the New

York City Charter is unconstitutional, and consequent-

ly, the waiver of immunity executed under its com-

pulsion is invalid and inoperative.

+ Jt is our position herein that the waiver of immunity

’ was executed under duress and compulsion ‘imposed’ by

force of the penalty created by Section "1123, in the event

of a refusal to execute the waiver. Section 1123 provides

as follows:

“Failure to Testify —If any councilman or other of-

ficer or employee of the city shall, after lsqful notice

or process, wilfully refuse or fail to appear before any

court or judge, any legislative committee, or any ofii-

cer, board or body authorized. to conduct any hearing

or inquiry, or having appeared shall refuse to testify

or to answer any- question regarding the property,

government or affairs of the city or of any county im-

cluded within its territorial limits, or regarding the

norgjnation, election, appointment or official conduct

of any officer or employee of the city or of any such

-- eounty, on the ground that his pian. 3 would tend to

‘neriminate him, or shall refuse to, waive immunity

from prosecution on account of any such matter in re-

lation to which he may be asked to testify upon any

such hearing or inquiry, his term or tenure of office or

employment shall terminate and such office or’ employ-

“ment shall be vacant, and he shall not be eligible to

election or appointment to any office or employment

under the city or any agency.”

If, as we urge hercin, the pressure exerted upon appel-

lant by Section 1423 was unlawful, ‘then the waiver of im- .

munity executed thereunder was not binding upon appel-

lant and he could properly raise his. gonstitutional privilege

- with impunity. _ - ow

We commence our argument by noting certain undenia-

ble practicalities. -A person subject to Section 1123 is faced

with the dilemma, when subpoenaed by a Grand Jury, of

surrendering either his constitutional privilege or his em-

ployment. He may or may not be innocent of any wrong-

doing. . Yet if he takes unto himself that which the State

- and Federal Constitutions say is his as of right, he must,

nevertheless, without further ado, pay thé price exacted by

the City. . ’ : ,

This section was before this Court in Slochower vy. Board

of Education, 300 U.S. 901. It was there stated at pages

55D-DO: ‘ i

‘‘Slochower argues that {963 abridges a privilege or

immunity of a citizen of the United States since “it in

effect imposes a penalty on the exercise of a federally

guaranteed right in a federal proceeding. It also vio-

lates due process, he argues, because the mere claim

of privilege under the Fifth Amendment does not pro-

vide a reasonable hasis for the State to terminate Ifis

employment. Appellee insists that no question of

‘privileges or immunities’ was raised or passed on be-

‘low, and therefore, directs its argument solely to the *.

proposition that (903 does not yperate in an arbitrary

or capricious manner. We do not decide whether a

claim under the ‘privileges or immunities’ clause was

considered below, since we conclude the summary dis-

missal if appellant in the circumstances of. this case

violates due process of law.

‘The problem of balancing: the State’s interest in the

loyalty of those in its service with the tPaditional safe-

guards of individual rights is a continuing one. To

state that a person does not have a constitutjonal right

to government employmen: is only to say that he must

comply with reasonable, lawful, and nondiscriminatory

‘terms laid down by the proper authorities. Adler v.

Board of Education, 342 U. S. 485, upheld the New

York Feinberg law which authorized the public school

authorities to dismiss employees who, after riotice and

hearing, were found to advocate, the overthrow of the

Government by unlawful means, or who were unable to

explain satisfactorily membership in certain organiza-

tions found to have that aim. Likewise Garner v. Los

Angeles Board, 3A1 U.S. 716, 720, upheld the right of

the city to inquire of its employees as to ‘matters that

may prove relevant to their fitness and suitability for

the public service,’ ‘including their membership, past

and present, in the Communist Party or the -Commu-

nist Political Association. There it was held that the

city had power to discharge employees who refused to

file ant affidavit disclosing such’ information to the

school authorities. |

But in each of these cases it was emphasized that

the State must conform to the ‘requirements of due-

process, In Wieman v. Updegraff, 344 U. S. 183, we

struck down a so-called ‘loyalty oath’ because it baxed

employability solely on the fact of membership in cer-

tain organizations. We pointed out that membership

itself may be innocent and held that the classification |

of innocent and guilty together was arbitrary. This

case rests squarely on the proposition that ‘constitu-

tional protection does extend to the public servant —

whose exclusion pursuant to a statute is patently ar-

bitrary or discriminatory.’ 344 U.S., at 192.

‘Here the Board, in support of its‘position, contends

_ that only two possible inferences flow from appellant’s

claim of self-incrimination: (1) that the answering of

the question would tend to prove him guilty of a crime

in some way connected with his official conduct; or (2)

that in order to avoid answering the question he false-

ly invoked the privilege by stating that the answer

would tend to incriminate him, and thus ‘committed

perjury. Either inference, it insists, is sufficient to

justify the termination of his employment. The Court

of Appeals, however, accepted the Committee's deter-

mination that the privilege had been properly invoked

and it further held that no inference of Communist

Party membership could be drawn from such a refusal

to testify. It found the statute to impose merely a con-

- dition on public employment and affirmed the. sum-

mary action taken in the case. With this concluston we

cannot agree. |

“At the outsef-we must-condemn the-practice of im-

puting a sinister meaning to the exercise of a person's

constitutional right under the Fifth Amendment. The

right of an accused person to refuse to' testify, which

- had been in England merely a rule of evidence, was so

important to our forefathers that they raised it to the

dignity of a constitutional enactment, and it has been

recognized as ‘one of the most valuable prerogatives of

the citizen.’ Brown v. Walker, 161 1. S. 591, 610. We

have reaffirmed our faith in ‘this principle recently in

Quinn v. United States, 349 U.S. 100. In Ullman v.

United States, 350 U. S.'422, decided last‘ month, we

scored the assumption that those who claim this privi-

lege are either criminals or perjurers. The privilege

. 1l

against self-incrimination would be reduced to a hol-

low mockery if its exercise could be taken as equivalent

either te a confession of guilt or a conclusive presump-

tion of perjury. As we pointed out in Ullman, a wit-

ness may have a reasonable fear of prosecution and

‘yet be innocent’ of any wrongdoing. The privilege

serves to protect the innocent who otherwise might be

ensnared by ambiguous circumstances. See Griswold,

The Fifth Amendment Today (1909).

‘With this in mind, we consider the application of

4903. As interpreted and applied: by the ‘state courts,

it operates to discharge every city employee who in-

vokes the Fifth Amendment. In practical effect the

questions asked are taken as confessed and made the

basis of the discharge. No consideration is given to

such factors as the subject matter of the ‘questions,

remoteness of the period to which they ure directed,

or justification for exercise of the. privilege. It mat-

ters not whether the plea resulted from mistake, in-

- advertence or: legal advice conscientiously given,

whether wisely or unwisely. The heavy liand of the

tional privilege, the full enjoyment of which every per-

son is entitled to receive. Such action falls squarely

_ within _ the prohibition, of Wieman v. Updegraff

e** *

supra. * * ee

“This is not to say that Slochower has a constitu-

tion right to be an associate professor at Brooklyn

College. The State has broad powers in the selection

and discharge of its employees, and it may be that

proper inquiry would show Slochower’s continued em-

ployment to be inconsistent with a real interest of the

State. But there has been no such inquiry here. We

hold that the summary dismissal of appellant violates

due process of law.”’

9°

_ statute fals-alike on all-who exercise their constitu- |

_ Slochower, of course, dealt with a discharge from em-

ployment by virtue of a refusal to answer as mandated by

Section 1123. At bar, we deal with incarceration for crim-

inal contempt predicated upon a refusal to answer, The

State urges that, the privilege of self-inerimination was

waived. Petitioner urges that the waiyer was ineffective

because of.the coercion avising from an illegal statute. In- |

either event, Section. 1123 dilutes the privilege created by

the State and Federal. Constitutions. In either event, a

person who seeks the protection of the ‘Constitution must

expose himself to a penalty. The privilege against self-

incrimination being an absolute right, it cannot be attenn-

ated or curtailed by legislative fiat. (See, «.g., People v.

Steuding, 6 N. Y. 2d 214.) ; ;

This latter principle was alluded to, by Mr. Justice

Deoveras in his dissenting opinion in. Ullman v. United

States, 300 U. S. 415, 454, who noted that: ‘‘the critical

point is that the Constitution places the right of silence »

beyond the reach of gorernment,”” (Htalies in original

text.) | =

In the final analysis, any view ‘upholding Section 142s,

must carry with it the concomitant view that the City of

New York may annex conditions to the exercise of rights

which are coustitutionally unconditional. , This, we submit,

ought not ‘to be allowed. |

We urge further that Séetion T1238 operates to deprive

city employees of the equal protection of the laws guaran-

‘teed to them by the Federal Constitution. (U.S. Constitu-

tion, Amendment XIV.) Among this Court’s more recen)

expositions on the subject was McGowan V. Maryland, 366

U. S. 426 (1961). The Court there upheld certain Sunday

Jaws enacted by the State of Maryland. The Court summed

up a long line of decisions by pointing out at 366 U.S. 425:

‘The standards under which this proposition is to be

evaluated have gBeen set forth many times by ‘this:

- Court. Altho “no precise formula has been devel-

oped, the Court held that the Fourteenth Amendment . |

permits the States a wide scope of diseretion in endtt-

ing laws which affect some gr Ds of citizens differ-

ently than others. The constitutional safeguard is of-

fended only if the classification rests on the grounds .

‘wholly irrelevant to the achievement of the State’s ob-

jective. State legislatures are presumed to have acted

within their constitutional power despite the fact that, -

in’ practice, their laws result_in seme inequality. A

statutory discrimination will not be set aside if any

- state of facts reasonably ma, be conceived of to jus-

tify it. See Kotch v. Board of River Port Puot Com’rs,

34) U.S, bo2, 67 S. Ct. 910, 91 L. Ed. 1093; Metropolt-

tan Casualty Ins. Co. of New York v. Brownell, 294

U.S. 580, 35S. (Ct. 538, 79 L. Ed, 1070; Lindsley v.

- Natural Carbonic Gas Co., 220 U.S. 61, 31S. Ct. 337,

5 L. Ed. 369; Atchison, T. d S.F. R. Co. v. Matthews,

174 U. S. 96, 19 S. Ct: 609, 43 L. Ed. 909.”

In Cohen v. Hurley, 36 U.S. 117, 139 (1951), the Court,

in dealing with the equal protection clause as it applied to

lawyers who raised the privilege during disbarment pro-

ceedings, asserted that ‘what procedures are fair, what

state process is constitutionally due, what distinctions are

consistent’ with the right to equal protection, all depend

upon the particular’ sithation presented * * °.”” .

Applying these principles to the situation at bar gives

rise to the conclusion that Section 1123 classified City ¢m-

ployees into two groups—those who assert their constitu-

tional rights and those who do not. It is not insignificant

that an innocent man who claims ‘the privilege must sacri- .

fice his position to do so. But a wrongdoer who testifies

4 a

retains his position unless it be first shown after hearing

that he is otherwise unfit to continue in his employment.

Such a distinction is patently unreasonable. If’ the objec-

tive of the City is to be enabled to ascertain whether its

employees are fit to carry out their duties, it is difficult to .

see how a rational result can be obtained by discharging

those who embrace the rights accorded them. To fe. tcn-

trary, there is inherent in Section 1123 a device for com-

pelling innocent employees to subject themselves to prose--

-eution arising from ambiguous circumstances. The same

device, ironically, may compel the City to continue to em-

ploy a wrongdoer who testifies with sufficient glibness to

dispel otherwise justifiable doubts as to his honesty. -. -

. 29

Pus, Section 1123 ultimately depends for its constitu-

tionality on the assumption that. the exercise of the privi-

lege per sé warrants a finding of disability to hold the par-

‘ticular employment. This was condemned in Slochower.

Mr. Justice CLank, in Wireman v. U pdegraff, 344 U.S.

183, 192, said: : ;

‘We need not pause-to consider whether gn abstract

right to public employment exists. It is sufficient to

say that constitutional protection does extend to the

~ public-servant whose exclusion pursuant to a statute

is patently arbitrary or discriminatory.”’

This view has been reaffirmed subsequent to Cohen v.

Hurley. In Torasco v. Watkins, 367 U. S. 488, Mr. Justice

Buack, wrote, at pages 495-496: i

“The fact, however, that a person is not compelled to

hold public office cannot possibly be an excuse for har-

ring him from office by, state-imposed criteria forbid-

den by the Constitution. This was settled by our hold-

_ ing in Wieman v. Updegraff, 344 U.S. 183.” |

—

The classification effected by Section 1123 therefore

‘‘rests on the grounds wholly irrelevant to the achievement

_of the State’s objective’? (McGowan v. Maryland, supra} .

POINT II

Fhe Grand Jury in Kings Ccunty has no power to

compel the production of either Federal Tax Returns

or New York State Tax Returns. : on

_. Congress has enacted restrictions upon compulsory dis:

’ closure of Federal Tax Returns. Section 6103 of Title 26

of the United States Code Annotated provides for pub-

licity of returns only in certain instances. Thus, certain -

returns may only be inspected upon order of the President

under rules and regulations approved by him. State bod-

ies or commissions may only inspect returns when such ‘in-

- spection is wpon the request of the Governor of that state.

In. the latter imstance such inspection may even then only

be had for the ‘‘administration of the tax laws of such

state.’’

It appears to be self-evident that all laws relating to the .

Federal Income Tax are exclusively within the legislative

’ province of Congress.. If Congress chooses (as it has) to

limit the circumstances in which Federal Tax Returns may-

be disclosed, the State carmot determine for itself whether

er not to heed those prohibitions. To do so would be to

encroach upon an area reserved by the United States Con-

stitution to the Federal Government. As was’ pointed out

in U. S. v.Baltimore Post Co., 2 Fed. 2d 761, 764, affirmed

268 U.S. 388, 45 S. Ct. 60 :

‘Doubtless Congress may determine (except in so far

_as it may be restrained by Constitutional prohibition),

in setting the policy of ihe laws of taxation, how much

er how little publicity of income returns shall be

given.”’

We, -therefore, respectfully submit that the subpoena |

power of a State Grand Jury cannot extend to, compel pro-

duction of Federal Income Tax Returns. An attempt by a

Grand Jury to subpoena such returns would violate ‘the

witness’s right to due process of law as guaranteed by the

- Federal Constitution. . Oietee

‘With respect 'to State Tax Returns the same principles

are involved. The statutory restrictions governing the dis-.

closure of informationm@reported by a taxpayer in his tax.

- return are found in Section 384 of the New York State Tax.

Law which provides, in pertinent parts, as follows:

‘Secrecy required of official; penalty for violation. ©

1. Except in accordance with proper judicial order

or as otherwise provided by law, ‘it -shall be unlawful

for the tax commission, any tax commissioner, any

officer or employee of the department of taxation and - ~.

finance * ** to divulge or make known in any manner .

the amount of income or any particulars set forth or

disclosed in any report or return required under this

article. The officers charged with the custody of such

reports and returns shall not be required to. produce

any of them or evidence of anything contained in them

in any action or proceeding in any court sialic aa

The statute goes on.to enumerate certain exceptions not

.’ pertinent herein. Criminal sanctions and forfeiture of office

are iraposed for violation of the section.

“It need not, of course, come as any surprise that the

legislature has seen fit to impose an almost inexorable bar-

rier of secrecy upon tax returns. The taxing power of any

government is vital to its existence. Under our system of

reporting taxable income, the initial information is, sup-

plied by the taxpayer himself. Investigation into the pro-

_priety of the return follows rather than precedes it. Yet,

because of the sheer impossibility of verifying each return,

the government must perforce rely for the most part upon

the honesty of the taxpayer. This, in turn, makes it imper-

" ative that a taxpayer feel confident that his tax return will

remain a matter strictly between himself and the state. It

does not require much in the way of imagination to visu-

— alize the abuses to which tax returns can be put if allowed

to go beyond the confidential files of the state. Included in

the ambit of abuse would be found instamiees ranging from

idle curiosity to criminal extortion. eee aie

Such an interpretation was placed upon Section 384 by *

Mr. Justice Dowiinc, speaking for the First Judicial De-

partment in People v. Isaac G. Johnson & Co.; 213 App. ~

Div. 402, 210 N. Y. S. 92:° » - d

‘‘But in my opinion no ‘proper judicial order’ can be

made except in an event when the integrity of the re-

- port itself is attacked or defended as the main, and not

merely the collateral issue.

‘To permit the use of such reports in an ordinary

case is to destroy the secrecy attaching to them and

to break down the protection which the statute gives

to taxpayers in the disclosure of their’ most intimate

business affairs. to the taxing power.”’

Some years later, that same court had occasion to. elabo-

rate in’ greater detail. In Application of Manufacturers

Trust Co., 269 App. Div. 108, 53 N. Y. S. 2d 923, the Court

said: = gu

‘Petitioner urges that the Legislature may not preclude

the courts from exercising the power to direct pub-

lication of tax returns because such limitation would,

- in violation of the Constitution, unlawfully curb the

‘functions of the judiciary. However, the object of the

secrecy provisions is to assure every taxpayer making

* :

returns that the information therein cuatthined will

remain confidential and will be used only for the pur--

pose of computing his tax. The statute indicates legis-

iative determination that such returns shall not be used

as evidence in the ordinary case and shall not, without

the taxpayer’s consent, be employed for any purpose’

other than that stated in the statute. (Citing cases.)

Such objective is wholly reasonable; the statute, as we

interpret it, is not violative of any Constitutional prin-

ciple and the” Legislature may enact such rule (citing

cases).

‘‘It has uniformly been held that the federal and

state governments have power to provide that returns.

made to their officers shall not be revealed by the of-

ficers (citing cases). In Oklahoma Tax Commission v.

' Clendinning, supra, 145 P. 2d at page 146, 151 A. L. R.

1055, tue courts, in passing upon a similar statute sum-

-marized the pertinent principles as follows: ‘No, one

questions. the power of the Legislature to so give tax

returns this confidential and privileged status. Similar’ ©

provisions are applied to income tax returns, and to

various other. reports.and returns to the Federal In-

_ ternal Revenue Department. It is not pointed out

~ where any authority has ever denied the power to sO

provide. The meaning of our statute above quoted i is

_ unequivocal and it needs no construction. It means

-what it says and must be followed by all; including this

court and the respondent District Judge. This act

constit es the state’s compact and pledge to the tax- - |

payer that this tax return shall be kept inviolate, con-

fidential and privileged, and not disclosed to anyone,

nor in any manner, except as specifically authorized

by the act itself, and will be used only for the —

= provided.’ ’’ -

“The Grand Jury is seeking to arrogate unto itself powers .

which the state itself has denied to the courts. It seeks to

do by indirection that which it is forbidden t@-do di-

rectly, viz., inquire into the confidential communication be-

_ tween taxpayer and state.

Analogy, if any be needed, is found in the doctrine which

engendered the necessity of all privileged communications,

i.e., attorney-client, doctor-patient, priest-penitent. At the

base is always found a social policy deemed by the state to

override the considerations of a particular-case. Undoubt-

' edly there are those who will argue that the denial of the - .

' order sought by the Grand Jury at bar will hamper their ©

investigation and set justice at naught. The difficulty with |

such an approach is that the same power which created that

‘grand jury has also, im its wisdom, ‘seen fit to mi the

‘grand jury’s power in regard to tax returns just as it ‘yas

limited the grand jury in regard to other confidential_cgm-

*. munications.

CONCLUSION .

The issues presented are of sufficient nationwide impor-

tance to warrant the granting of a writ of certiorari.

Dated: Brooklyn, New York | oe

July, 1964. © | tf

Respectfully submitted, .

_. Evserorr, Newman & SoneENSHINE, .

_ Attorneys for Petitioner Samuel. D. Carthan?

Wituam SonensHtne, Esq.

Of Counsel. .

[ APPENDICIES Foitow] .

, “NO

APPENDIX A

; 4 af fa , ; * ;

Opinion of the United States Court of Appeals

UNITED STATES COURT OF APPEALS —

For tHe Seconp Crecvuir

No. 329—September Term, 1963.

(Argued March 9, 1964 Decided April 6, 1964.)

| Docket No. 28610 —

— Usirep States ex rel. Samven D. CarTHAN,

Appellant,

v."

Suenirr, Ciry or New York,

oy Appellee.

o—

Before:

Smita, KavrmMan and Marsuall, .

Circuit Judges.

——_—______——_i-

Appeal from denial of petition for writ of habeas corpus

in the United States District Court for-the Eastern District

of New York, Walter Bruchhausen, District Judge.

Affirmed.

[21]

Appendiz A

WittuM Sonxensuine, Brooklyn, New York (Evseroff,

Newman & Sonenshine, Brooklyn, New York, on the

. brief), fur appellant.

Invixc P. Semman, Asst. District Attorney, Kings

County, New York (Edward S. Silver, District At-

torney and Aaron E. Koota, Chief Asst. District At-

torney, Kings County, on the brief), for appellee.

Smiru, Circuit Judge,

Appellant is under sentence of imprisonment for criminal

contempt of court, imposed by the Supreme Court of the

State of New York for the County of Kings for refusal to

produce income tax returns requested by the Grand Jury.

The sentence was affirmed by the Appellate Division and a

_ writ of habeas corpus was dismissed. Leave to appeal to

the Court of Appeals was denied. Appellant thereupon peti-

tioned the United States District Court for the Eastern Dis-

trict of New York for a writ of habeas corpus. The District

Court, Walter Bruchhausen, District Judge, denied the peti-

tion and relator appealed. We find no error and affirm the

order deny:ng the writ.

Appellant, a plastering inspector employed by the City

-of New ¥ °: was subpoenaed to testify before a Grand |

Jury inve’ ting possible corruption in the Building De-

‘partment oi ts > City of New York in connection with home

building in Kings County. He appeared before the Grand

Jury and exeéuted a Limited Waiver of Immunity pursuant

to Seetion 112% of the New York City Charter (formerly

Section 903), which requires a city employee subpoenaed

‘before a Grand Jury to waive’ his privilege against self-

incrimination with respect to city affairs or forfeit his office

23 ‘

Appendia A

and his eligibility to appointment to city office or employ-

ment. He testified before the Grand Jury and later, at the

request of the Grand Jury, submitted financial question-

naires for the years 1959, 1960 and 1961. However, when

subsequently subpvenaed to produce copies of his State and

Federal income tax returns for. 1959, 1960 and 1961, he

admitted that he had the returns but refused to produce

them. Directed by the court to appear and produce the

returns, 234.N. Y. S. 2d 64 (Sup. Ct. 1962), he again ap-

peared and again refused. On motion to punish for con-

tempt the order was repeated and appellant again refused.

Thereupon, he was adjudged in contempt and sentenced to

imprisonment for 30 days and to a fine of $250 or an addi-

tional 30 days imprisonment.

Appellant exhausted his state remedies by appeal to the

Appellate Division, where the conviction was affirmed and

an application for writ of habeas corpus dismissed, and by

application for leave to appeal to the Court of Appeals,

which was denied, See Fay v. Noia, 372 U. S. 391, 415-420

(1963). .

Appellant argues two points, that Section<1123 is an un-

constitutional limitation on the privilege against self-in-

crimination, and that the Grand Jury lacked power to or-

" der the production of federal and state income tax returns.

The second ground appears to be without substance. The

disclosure of tax returns which is forbidden by both federal

and state law to protect: the integrity of the tax reporting -

and collecting system is an unauthorized disclosure of the

filed returns, directed primarily against employees of gov-

ernment in the taxing departments. Disclosure by the tax-

payer himself of his copies of returns is not an unauthorized

disclosure, even though it be made by reason of legal com-

ee EE

24 Z

Appendix A

pulsion. United States v. O’Mara, 122 F. Supp. 399 (D. D.C.

1954), Connecticut Importing Co. v. Continental Distilling

Corp., 1 F. R. D. 190, 192 (D. Conn.).

The first ground is more troublesome, for restrictions on —

the constitutional privilege against self-incrimination are

not favorably regarded. However, the Supreme Court has

recognized that public bodies have the right to expect public

employees to give frank replies to questions relevant to an

employee’s fitness to hold public office. Beilan v. Board of

Education, 357 U. S. 399 (1958) ; Garner v. Board of Public

Works, 341 U.S. 716 (1951). And in Regan v. New York,

349 U. S. 58 (1955), the Court sustained the contempt con-

viction of a New York policeman who had refused to testify

before.a Grand Jury about the acceptance of bribes from

gamblers. A New York statute then in force provided that

testimony relating to bribery could not be withheld because

of the privilege against self-incrimination; but conferred

immunity from prosecution for any criminal activity’ re-

vealed by such testimony. In order to retain his job with

the city, Regan executed a waiver of immunity from subse- -

quent prosecution and appeared before the Grand Jury.

_ When he balked. at’ telling whether he had received any

bribes, Regan was convicted of criminal contempt. The

Supreme Court held that since he had signed the waiver,

_ Regan ‘‘was not deprived of any constitutional rights in

being punished for his failure to testify.’’ 349: U. S. at 62.

- We need not go so far to sustain the appellant’s contempt

conviction. Appellant knowingly waived his privilege

against self-incrimination with respect to.city affairs. Un-

like Regan, he submitted financial questionnaires. Having -

taken advantage of the waiver to hold his .job and having

already undertaken to disclose his financial affairs to the

Grand Jury, appellant cannot cry halt because the inquiry

Appendix A

has gone into greater depth than he had anticipated. Once

he waives his privilege against self-incrimination, a witness

may not withdraw his waiver to:prevent matters which he

_ has already gone into from being explored in greater detail. ~

~ See Brown v. United States, 356 U. S. 148 (1958) ; Rogers

v. United States, 340 U. S. 367 (1951).

The judgment denying the writ is affirmed.

"26

APPENDIX B

_ Opinion, New York Supreme Court, ‘Kings County

COR APPLICATION OF.. THE... iia

Spooxp ADDITIONAL GRAND Juny of. the County or Kies ;

for the SEPTEMBER 1961 Term, as EXTENDED, to Direct the

Witness Samuel D. Carthan, to comply with the Subpoena

‘Duces Tecum Served Upon Him by Said Grand Jury.

SupREME COURT

CruminaL Court, Kings County,

Paarl. Oct. 25, 1962.

Edward S. Silver, Dist. Atty., by Aaron E. Koota and

Irvin P. Seidman, Asst. Dist. Attys., Brooklyn,

Evseroff, Newman & Sonenshine, Brooklyn, for Witness.

Mites F. McDonap, Justice.

Motion for an order directing the witness herein, Samuel

D. Carthan, to produce before the second additional Grand

Jury of the County of*Kings for the September 1961 Term,

‘ ¢y-g 28 extended, copies of his Federal and State income tax

returns for the years 1959, 1960 and 1961, granted.

The question of law, sub judice, is whether or not a wit-

ness duly subpoenaed before a Grand Jury, conducting a

proper inquiry, who has executed a limited waiver of im-

munity and submitted.a financial questionnaire, be com-

pelled to produce copies of his State and Federal income

tax returns. | ,

‘The Grand Jury is seeking’ to determine. whether the

crimes of conspiracy, bribery, corruption and other crimes

Appendiz B

have been committed by certain builders, contractors and

public officials. The witness is a plaster inspector, em-

ployed by the Building Department of the City of New York

in Kings County. The witness appeared before thé Grand

Jury and executed a limited waiver of immunity as pro-

~-yided.by law. He has executed a financial questionnaire

‘which required hii to list, among. other things, his assets

and liabilities and living expenses for the years 1959, 1960

and 1961. The-questionnaire has been completed and re-

turned to the Grand Jury by the witness. At the present

time an investigation is being conducted by the Grand

Jury to ascertain the validity of the answers to the witness’

questionnaire, to determine whether said answers are, in

fact, the truth. The Grand Jury during the course of the in-

vestigation made a demand upon the witness that he pro-

‘ duce his Federal and State income tax returns for the years,

1959, 1960 and 1961, so that a comparison could be made

between said income tax return and the answers given by

the witness on the financial questionnaire. This the witness

has refused to do. '

It is not disputed that the Grand Jury is conducting a

proper inquiry and the issuance of a subpoena_duces te-

cum by a Grand Jury is within‘its powers and must be

complied with by ‘a witness if the demand has not been

duly burdensome and the documents sought are in any way

relevant to the Grand Jury’s inquiry. The propriety of re-

quiring a witness to furnish the Grand Jury with financial

questionnaires has been established in People ex rel. Silli-

fant v. Sheriff of City of New York, 6 N. Y. S. 2d 487, 190

N. Y. S. 2d 641, 160 N. E. 2d 890. "eA

There is no question in the court’s mind that the ree-

ords sought are relevant to the Grand Jury’s investigation.

However, the witness claims that to require him to pro-

“Appendix BO _

duce his income tax returns would constitute a violation of

the witness’s rights to due process of law as guaranteed by

the New York State and Federal Constitutions. The wit-.

ness further claims that pursuant to the provisions of See-

_tion 964 of the State Tax Law and Section 6103, Title 26,

of the Internal Revenue Code, the information contained in

an income tax return shall be kept secret and not divulged.

_ sHowever, the secrecy imposed by these sections only pro-

hibits disclosures by officers of.the Government or-the State, '

except in accordance with proper judicial order or as other-

wise provided by law, not by the taxpayer himself. (United

States v. O’Mara, D. C., 122 -F, Supp. 399).

The intent and purpose of Section 6103, supra, is to pre-

vent the disclosure of confidential information. to those

who do not have a legitimate interest in it. (Application of ,

Umbach, Okl., 350 P. 2d 299). The same holds true of Sec- -

iion 384 of the Tax Law of the State of New York. .

Farthermore, the witness, having signed a waiver of im-.

munity, cannot raise the question -of self. incrimination.

Once there is a waiver the only question is relevancy and

materiality. A reading of the limited waiver discloses that

the witness, by executing such waiver, waive all benefits,

privileges, rights and immunity, relating to any matter,

transaction or things, concerning his conduct in office for - ~

the performance of his official duties: By executing such

- waiver in advance of giving testimony or producing evi-

dence, the witness renounced his fundamental rights and

privileges guaranteed to him by the Constitution that no

person shall ‘‘be compelled in any criminal ease to be a

witness against himself.’’ {Matter of Grae, 282 N. Y. 428,

96 N. E. 2d 963, 127 A. L. R. 1276). |

Appendix B

‘The witness has testified under oath that he has copies

of the income tax return requested by the Grand Jury. No

hardship will be created by the production of these docu-

ments which are relevant and material to the matter pend- »

ing before the Grand Jury. As stated in Matter of Man-

ning v. Valente, 272 App. Div. 358,.361, 72 N. Y. S. 2d 88,

‘‘Nor may petitioner refuse to produce documents and |

records under a subpoena duces ‘tecum unless he can

“show that the documents are so unrelated to the sub-

ject of inquiry as to make it obvious. that their produc-

‘tion would be futile as an ‘aid to the court.’’

Certainly it cannot be argued that the documents re-

quested are not related to the subject of the inquiry and

would not be an aid to the Grand Jury in its investigation.

Settle order in accordance with the terms of this decision

which shall provide that the witness produce before the

Grand Jury copies of his Federal anc State income tax re-

turns for the years 1959, 1960 and 19¢1, on a Gate to be

fixed in said order. .

“APPENDIX C

Fifth Amendment, United States-Constitution

‘No person * ** shall be compelled in any criminal case

to be a witness against himself, * * *’’

‘‘Section 1. * * * No State shali make or enforce any law

which shall abridge the privileges or immunities of citizens

‘of the United States; nor shall any State deprive any per-

gon of life, liberty, or property, without due process of

law; nor deny to any persun within its jurisdiction the

equal protection of the laws.”

§1123, New York City Charter

(‘Failure to Testify—If any councilman other officer

or employee of the city shall, Dak aie or process,

wilfully refuse or.fail to appear before any court or judge,

any legislative committee, or any officer, board or body au- |

‘thorized to conduet any hearing or inquiry, or having ap:

peared shall refuse to testify or to answer any question

regarding the property, government or‘affairs of the city

or of any county included within its territorial limits, or

regarding the nomination, election, appointment or official —

conduct of any officer or employee of the city or of any

such county, on the ground that his answer would tend to

incriminate him, or shall refuse: to waive immunity from

prosecution on acedunt of any such matter in relation to

‘ which he may be asked to testify upon any such hearing —

or inquiry, his term or tenure of office or employment shall

‘ terminate and such office or employment shall be vacant, and

he shall not be eligible to: election or appointment to any

office or employment under the city or-any agency.’” —'

Appendix C

§384, New York State Tax Law.

“Secrecy required of official; penalty. for violation.—

1. Except in accordance with proper judicial order or as

otherwise provided by law, it shall be unlawful for the tax

commission, any tax commissioner, any officer or employee

of the department of taxation and finance, any person en-

gaged or retained by such department, on an independent

eontract basis, or any person’ who, pursuant to this section,

is permitted to inspect any report or return or to whom a

copy, an abstract or a portion of any report or return is

furnished, or to whom ‘any information contained in any

report or return is furnished, to divulge or make known in

any manner the arhount of income or any particulars ‘set

forth or ‘disclosed in any report or return required under

this article.. The officers, charged with the custody of such

reports and returns shall not be required to produce any of

them or evidence: of anything contained in them in any

‘action or proceeding in any court, except on behalf of the

tax commission in an action or proceeding under the pro-

visions of this chapter to’ which it is a party, or on behalf

of any party to any action or proceeding under the provi-

sions of this article when’the reports or facts shown there-

by are direcfly involved in such action or proceeding, in

either of which events the court may require the produc-

tion of, and may admit in evidence, so much of said re-

ports or of the facts shown thereby, as are pertinent to the —

action or proceeding and no more. Nothing herein shall be

~ eonstrued to prohibit the delivery to a taxpayer or his duly.

authorized representative of a certified copy of any: return

‘or report filed in connection with his tax nor to prohibit

the publication of statistics so classified as to prevent the

identification of particular reports or returns and the items

thereof, or the inspection by the attorney-general or other

Appendiz C. , 3

legal representatives of the state of the report or return of

” any taxpayer who shall bring action to, set aside or review

the tax based thereon, or against whem an action or pro-

ceeding has been instituted in accordance with the pro-

visions of sections three hundred eighty and three hundred

eighty-one of this chapter; or thé 1 pection of the reports

or returns required under this article by the comptroller

or duly designated officer or employee of the state depart-

ment of audit and control, for purposes of the, audit ofa.

refund of any tax paid by a taxpayer under this article. Re-

ports and returns shall be preserved for three years and

thereafter. until the tax commissioner orders them to’ be

’ destroyed.”’

§6103, United States Code

#66105. Publicity of returns and Jists of taxpayers

ad | Public record and inspection. —

(1) Returns made with respect to taxes imposed by

chapters 1, 2, 3, and 6 upon which the tax has been

determined by the Secretary or his delegate shall

constitute public records; but, except as hereinafter

provided in this section, they shall be open to inspec-

tion only upon order of the President and under -

rules-and regulations preseribed by the Secretary or

his delegate and approved by the President.

«(2) All returns made with respect to the taxes im-

posed by chapters 1, 2,.3, 5, 6,.11, 12, and 32, sub-

chapters B, C, and-D of chapter. 33, and subchapter

B of chapter 37, shall constitute public reeords and

shall be open to public examination and inspection

to such extent as shall be authorized in: rules and

regulations promulgated by the. President.

“6.(b).

, Appendix Cc

**(3) Whenever a return is-open to the inspection

of any person, a certified copy thereof shall, upon .

request, be furnished to such person under rules and

regulations prescribed by the Secretary or his dele-

gate. ‘The Secretary or his delegate may prescribe

a reasonable fee for furnishing such copy. |

F.. \

, % \

Inspection by states.— * { ;

é (1) State "Officers. —The ‘ proper officers \of any

State may, upon the request of the governor thereof,

have access to the returns of any corporation, or to

-an abstract thereof showing the name and income of

any corporation, at such times and in such manner as

the Secretary or his delegate may prescribe. -

*(2) State bédies or commissions.—All, income re-

turns filed with respect to the taxes im esed by chap-

«<p

~ ters 1, 2, 3, and 6 (or copies thereof;;if so prescribed

by regulations made under this¢stibsection), shall be

open to. inspection by any official, body, ar conimis-

. sion, lawfully charged with the administration of any

. information to be furnished to local taxing authori-

State tax law, if the inspection is for the purpose of

such administration or for the purpose of obtaining

ties as provided in this paragraph. . The inspection

shall be permitted only upon written request of the

governor of such State, designating the representa-

inspection on behalf.of such official, body, or com- —

mission, The inspection shall be made in such man-

ner, and at such ‘times and places :as shall be pre-

seribed by regulations made by the Secretary or his

delegate. Any information thus securéd by any of-

ficial, body, or commission of any State may be used

- Appendix C

‘ : ¥ |

only for the administration of the, tax laws of such

State, except that upon written request of the gov-

ernor of such State any such information may be

furnished to any official, body, or commission of any

political ‘subdivision of such State, lawfully charged

with the administration of the tax laws of such po-

litical subdivision, but: may be furnished only for

the purpose of, and may be used, only for, the admin-

istration ef such tax laws. “==

Be APPENDIX D .

Petition for Writ of Habeas Corpus |

To the District Court of the United States for the

‘Eastern District of New York. ,

The Petition of Samvet D. Carruay, respectfully shows:

1. That he is the applicant above named and is now im-

prisoned and restrained of his liberty by the Sheriff of the

City of New York in the State of New York, County ‘of

Kings. .

2. That the cause or pretense of such imprisonment and

restraint according to the best knowledge and belief of

your petitioner is an order of the Hon. Miles’ F. McDonald,

a Justice of the Supreme Court of the State of New York,

‘xi and for the County of Kings, made on the 17th day of

December, 1962, adjudging petitioner guilty as and for a

_ eriminal contempt of Court, pursuant to Section 619 of the

Code of Criminal Procedure and Section 750 et seq., of the

Judiciary Law and sentencing him to a term of imprison-

ment as follows: 30 days or fine of $250.00 and 30 days.

8 That said order has been affirmed on appeal to the

Appellate Division of the Supreme Court, Second Judicial

Department on the 18th day of March, 1963 and thereafter

on May 16, 1963 ‘the Court of Appeals of the State of New

York denied an application for leave to appeal to that Court —

from the order of affirmance of the aforesaid Appellate

Division. A prior application for a writ of habeas corpus

was dismissed by order of that Court, dated December 17,

1962. :

Appendix D

4. Accordingly, your petitioner respectfully submits that

all remedies available in the: Courts of the State of New

York have been exhausted. . ;

5. The underlying facts leading to the issuance of the

aforesaid application of criminal contempt of Court are —

as follows: iy To toe

6. The Second Additional Grand Jury of the County of

Kings, for the September, 1961 term, as extended, com-° *

menced an inquiry to determine whether the crimes or con-

spiracy or other crimes were committed in connection with

the construction of certain real property in.the County of

Kings. . e .

7. That petitioner is a plastering inspector employed

by the Building Department of the City of New York for

Kings County.

8, That petitioner was subpoenaed to appear before said

Grand Jury and, pursuant to Section 003 of the New York

City Charter, executed a limited waiver of immunity and

submitted pursuant to the direction of the Grand Jury,

financial questionnaires for the years 1959, 1960 and 19651.

9. Thereafter, petitioner was served with a snbpoena

duces tecum directing him to produce before said Grand

Jury, copies of his Federal and New York State income

tax returns for the years 1999, 1960 and 1961. On Septem-

ber 24, 1962 he appeared before the Grand Jury in response

to said subpoena duces teeum but stated to the Grand Jury

that upon the advice of counsel he respectf ully declined to

Jproduce such returns for the réason that he was informed)

- and believed (gat said Grand Jury had no legal pow to

Appendix D

‘ compel their production, in that such a direction violated |

his constitutional privilege against self-incrimination and

would further violate his rights to due process of law and

equal protection of the laws and further, that said tax

returns were confidential communications between the said

petitioner and the Federal and State tax authorities which

he was not legally bound to disclose. Petitioner further

" Stated to the Grand Jury that the waiver of immunity exe-

cuted by him, was executed under duress and compulsion in

that failure to execute same would result in a discharge of

his position as an inspector in the Department of Buildings

of the City of New York, and a loss of property rights which

would otherwise have accrued to his benefit.by reason of his

participation #1 the pension plan provided for him. At that

time, petitioner informed the Grand. Jury that he was ad-

-yised by counsel that the aforesaid Section 903 of the New

‘York City Charter was unconstitutional ‘in that it violated —

his constitutional privilege against self-inecrimination and

would deprive him of due process of law and equal protec-

tion of the laws and that said section was arbitrary and

discriminatory.

10. That thereafter on the 16th day ‘of October, 1962

the District Attorney of KPigs County made application

before Hon. Miles F. MaeDonald, a Justice of the Supreme

Court in Kings County, at a (Criminal Term, Part 1 thereof,

for an Order directing petitioner to produce the aforesaid

tax returns. After hearing argument thereon said Justice

Miles F. MacDonald made and entered an Order directing

petitioner to produeé said returns before said Grand Jury.

That thereafter, and on the 21nd day of November, 1962, .

petitioner returned to said Grand Jury and again respect-

fully declined for the ‘reasons aforesaid to produce said

tax returns.

38.

Appendix D

11. That thereafter as alleged herein, petitioner was ad-

judged guilty of a criminal contempt and sentenced as here-

inabove set forth.

12. That the imprisonment and restrained of petitioner

as aforesaid is illegal-and unlawful and among other things

is in violation of his rights under the fifth and fourteenth

amendments of the Constitution of the United States. -

13. That no previous application: has bee heretofore

been made to any Federal Court or judge for the relief -

herein sought.

| WHEREFORE, your petitioner prays. that ‘a writ of habeas

corpus be issued directed to the Sheriff of the City of New

York, State of New York, County of Kings commanding to

have the body of. petitioner Samuel D. Ca. than, together

with the cause of such imprisonment and restraint forthwith

before the Court or officer granting said writ.

Samvue. D. Cartusn

(Sworn to by Samuel 1). Carthan on November 15, 1963.)

APPENDIX E

_ Title 28, United States Code .

§2: 241. Power to grant writ

‘‘(a) Writs of liabeas corpus may be ein by * * * the

district courts * * * |

‘‘(e) The writ of habeas’ corpus shall not extend to a

prisoner unless— * * *

laws or treaties of the United States; ***”

‘*<2254. State custody ; remedies in State Courts

‘An application for a writ of habeas corpus in behalf

of a person in custody pursuant to the judgment of a State

court shal! not be granted unless it appears that the appli-

-eant has exhausted the remedies available in the courts of -

the State, or that there is either an absence of available

State corrective process or the existence of circumstances —

rendering such process ineffective to protect the ‘rights of

the prisoner.

‘An applicant shall not be detmea to have exhausted the |

remedies available in the courts of the. State, within the

meaning of this section, if he has the right under the law

of the Staté to raise, by any available procedure, the ques-

tion p esented.”” .

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.