Petition for a Writ of Certiorari — Pierre v. Jordan

Office-Supreme Court, US

FILED

NOV 4 1964

j JOHN F. DAVIS, CLERK

IN THE

Sipreme Court of the

United States

Octoper Term, A. D. 1964

No. § 49 {

7

IN RE METRO HOLOVAOCHEA,

Petitioner

Petition for a Writ of Certiorari to the

Supreme Court of Indiana

ROBERT J. DOWNING,

WILLIAM M. WARD,

105 S. LaSalle Street,

Chicago, Illinois 60603,

Counsel for Petitioner.

Midwest Law Printing Co.. 326 N. Michigan Ave., Chicago

Telephone: Financial 6-3988

INDEX

j PAGE

Citations to the Opinion below -2.0..............eceeceeseceeeeeeees 1

BE RISC eter en ey ee eS Oe Oe ee eR 2

RN NI oiciaceeciretedinnetisecrinriedcctacoinndmsieabines 3

aaa eee 3

RON a a a ea i

Reasons for Granting the Writ .....................----.-.-0.0s00-0-+ 10

ER PIE AR I EE a SAAR EPL Se SE MY LR 14

Appendix A—Rules and Statute ... santana a. la

B—Opinion and judgment below —................ 3a

C—Attorney Gavit’s Plea for Continuance... 36a

LIST OF AUTHORITIES CITED

Citations:

Baker v. Miller, 236 tnd. 2D 2.2.2. iekeaoke eae e

Beilan v. Board of Education, 357 U.S. 399 000... 12

Cohen v. Hurley, 366 U.S. 117 .......0.............. 10, 12, 13

SE ig: I ts I ine entice ce 13

Gideon v. Wamright, 372 US. 25... li

Greene v. Mc Elroy, 360 U.S. 474 .22.....0.0........sssssecsssseesee- 10

Hranmah ¥. Laretio, Oia U5, GO coker cncscccsncee 10

In He Anastople, 306 UB. 82 oc 12, 33

In Re Holovachka, 198 N.E. 2d 381-0000... 1

Sie ee Cs ee i sik es 12

Konigsberg v. State Bar of California, 353 U.S. 252. 10

RPT HSNO, Tre Ci I oases sneeniiieorncen ec cts 12

BRREIOY VSR TE RR ssc iacecccscceckdaetcsntdacpenecns 13

il

ER ee ere 10

Powell v. Alabama, 387 U.S. 46 «...........-.20--200+:se10000-00--00- ll

Reynolds v. Cochran, 365 U.S. 525 ........------------1--0-0000++ 11

Russell v. U. S., 369 U.S. 749 Eee ena 12

Schware v. Board of Bar Examiners, 353 U.S. 232... 10

a Oe ee 12

U. S. v. Holovachka, 7th Cir. 314 F. 2d 345, cert. den

374 U.S. 80%, reh. den. 374 U.S. 859 2... 4

, git Se 5 5 Sh; . paRRUseamecnmerenann 13

Willner v. Committee on Character, 373 U.S. 96 ........ 10

Statute And Rules:

Rules of the Supreme Court of Indiana—

ad enkdnandabaniilites eae

REITER IRR ars in A ODE SOO 3. 35, 2a

a ceenienaln 3, 2a

I ei |r eehcacenidaioneneininns saieeal 3, 3a

Fe I OF PICS CES TD Sceceteicineictccsintentecesincentonnss 3, 3a

Miscellaneous:

Hearings before the Selection Committee on Im-

proper Activities in The Labor or Management Field,

86th Cong. Ist Sess., Part 53—

EY *Chailechleiaabsinmeies ee Pe et EI EE er 8

I cisec i chris ccencencelinnciitacenccaatseneennntiemanitetinneneninetnenasticht 9

iS IIT. Gantscicsicinsetinsneencneianttnranonesentopasindinnsesteceboinnntntcuntacinetaaines 9

1 A nasclithircceitctnsnnniiaicibcictnncdentieneniehsdcniensacopmeiinaniinamsicints 9,13

li MII ic Sih sands oabppncivericainicesddmenuaniomnennittaniiantinieinttiaietdd 7

Be eetineccincstnsencessnssciveeewmenectncsenineectentnanacinineiantanetonuiis 7

Be TREE, cspeitebicniercnnneinictedicnociresningunssribaeounniincnoeermcnanitcsniaisastision 7

IN THE

Simreme Court of the Anited States

Ocroser Term, .\. D. 1964

' No.

IN RE METRO HOLOVACHEA,

Fetitioner

Petition for a Writ of Certiorari to the

Supreme Court of Indiara

Petitioner prays that a writ of certiorari issue to re-

view the order of the Supreme Court of Indiana entered

in the above entitled case of May 11, 1964.

CITATIONS TO THE OPINION BELOW.

The opinion of the Supreme Court of Indiana is not

officially reported. It is unofficially reported at 198 N.E.

2d 381 and is printed in Appendix B hereto, p. 3a.

() The transeript of the hearing held before Commissioner Lamb

is paged and shall be referred to as Tr. The exhibits introduced at

said hearing are numbered. The various pleadings, briefs, documents

and papers filed below are not paged, but are identified by number

in a Transeript of Docket Entries filed herein with the record. These

shall be referred to herein by that number. Thus, the aforementioned

opinion and order is Dkt. 65.

wihlllies

JURISDICTION.

The order of the Supreme Court of Indiana was en-

tered on May 11, 1964 (Dkt. 65, Appendix B, pp. 34a-35a).

Rehearing wa. denied on July 7, 1964 (Dkt. 69). By order

dated October Sth, 1964, the time for filing tris petition

was extended to and including November 5th, 1964. The

jurisdiction of this Court is invoked under 28 U.S.C. Sect.

1257 (3). Petitioner’s inability to be present at the hear-

ing and his ecounsel’s®) inability to prepare for the hear-

ing together with the reasons therefore was made known

to Commissioner Lamb on the opening day of the hear-

ing (Tr. 4-8, Dkt. 39).

Petitioner’s contention that a hearing held without peti-

tioner’s presence and without prepared counsel violated

his right to due process of law under the 14th Amend-

ment was raised in his ‘‘Exeeptions of Defendant Metro

Holovachka ete.” (Dkt. 53) and his brief in support there-

of (Dkt. 62). Petitioner’s contention that grounds for

disbarment could not be found from his objections to the

scope and pertinency of some of tne questions asked him

at a congressional hearing was raised in said brief. These

questions were again raised in petitioner’s petition for

rehearing (Dkt. 66). The court below overruled these con-

tentions in its opinion, Appendix B, pp. 27a-32a.

]

(2) Attorney Albert 4. Gavit of Gary, Indiana.

(3) Ineorrectly styled “Holovachka’s affidavit for continuance.’’

In fact, it is Attorney Albert H. Gavit’s affidavit for continuance.

Jiiien

QUESTIONS PRESENTED.

1) Whether the Due Process Clause of the 14th Amend-

ment guarantees an attorney the right to effective coun-

sel at a hearing held on an information for disbarment?

2) Whether it is a denial of due process of law guar-

anteed by the 14th Amendment for a Commissioner to go

forward with a hearing on disbarment in spite of de-

fendant’s counsel’s representations as an attorney and

under oath that defendant’s health and nervous condition

rade it impossible for covnsel to prepare for the hearing

or defendant to participate therein?

3) Whether it is a deniai of due process of law guaran-

teed by the 14th Amendment for a State Court to find

grounds for disbarment from an attorney’s alleged fail-

ure to cooperate with a Congressional Committee by re-

fusal to answer some of the questions asked him on the

grounds that the questions were beyond the scope of the

resolution creating the Commiiiee and were not pertinent

to the scope of that resolution?

RULES AND STATUTE INVOLVED.

The relevant rules of the Supreme Court of Indiana

are Rules 3-20, 3-21, 3-24 and 3-25 as amended to Septem-

ber 10, 1962. They are set out in Appendix A, pp. la ef.

seq. The relevant statute is 52 Stat. 942, 2 U.S.C. Sect.

192, the contempt of Congress statute. It is set out in

Appendix A, p. 3a.

a

STATEMENT.

Petitioner was the former prosecuting attorney for Lake

County, Indiana. On February 22, 1962, petitioner was

found guilty on 9 tnree count inc‘ctm-nt cherging him

with wilfully attempting to evade and defeat his income

taxes for the years 1955, 1956 and 1957, in violation of

See. 7201 of the Internal Revenue Code of 1954.“ Such

conviction alone is not sufficient grounds for disbarment

in Indiana, Baker v. Miller, 236 Ind. 20.

While an appeal from said conviction was pending, a

verified petition for leave to file an information for dis-

barment and a supplement thereto were filed in the Su-

preme Court of Indiana by the Northwest Indiana Crime

Commission, Inc., on May 15, and May 28, 1962 respee-

tively. The said iaformation and supplement alleged that

petitioner violated his oath as attorney and his oath of

office. (Dkt. 1 and 2). Purported summaries and portions

of testimony given in 1959 before the Select Committee

on Improper Activities in The Labor or Management

Field, 86th Congress, Ist Sess. together with portions

of said Committee’s final report were appended to the

supplement.“ The Supreme Court of Indiana, by order

dated June 25, 1962 (Dkt. 4), granted leave tp file said

information, designated the Attorney General to repre-

(*) This conviction was affirmed on February 18, 1963, U. 8. v.

Holovachka, 7th Cir. 314 F. 2d 345, reh. den. March 28, 1963; cert.

den. 374 U.S. 809, reh. den. 374 U.S. 859. Petitioner is presently

serving the three year sentence imposed by the Court.

(*) Needless to say, petitioner has never confronted or cross exam-

ined witnesses appearing at these hearings.

—j--

sent the State of Indiana, and appointed Judge Newell

A. Lamb as Commissioner to investigate, hear and take

evidence on the charges.“ On Octoher 24, 1962, a veri-

fied application for change of venue from Commissioner

Lamb alleging bias ard prejudice and stating specific

reasons therefore was filed by petitioner (Dkt. 19). This

application was opposea bv the said Attorney General

(Dkt. 20) and denied by the Court on October 3C 1962

(Dkt. 22). By order dated February 5th and filed Febru-

ary 7, 1963 the Commissioner set the hearing for March

12, 1963 (Dkt. 36).

At the March 12, 1963 hearing, petitioner’s counsel ap-

peared and requested a continuance on the grounds that

petitioner’s health and nervous condition prevented coun-

sel from preparing the case or petitioner from making a

meaningful participation therein (Tr. 4-8). Counsel filed

his affidavit to that effect (Dkt. 39). His appeal to the

Commissioner is set out in relevant portion in Appendix

C. p. 36a.© This request was opposed by the Indiana

Attorney General by verified motion and by argument

(Dkt. 39, Tr. 9-12); although he conceded Attorney Gavit's

(*) This June 25th order mentions a Disciplinary Commission ree-

ommendation, but petitioner is unable to find sueh recommendation

in the record or a docket entry to identify in, see Rule 3-21. Appen-

dix. A, p. 2a.

(*) Two previously scheduled hearing dates were reset by the Com-

missioner because of the illness of both counsel (Dkt. 28, 32). The

Attorney General conceded that these two continuances were not

the fault of anyone (Tr. 9).

(*) On this date, March 12, 1963, petitioner's petition for rehear-

ing of the tax conviction was pending in the Court of Appeal. for

the 7th Cireuit. Mr. Gavit explained to the Commissioner that peti-

tioner’s health and nervous condition was caused by this tax litia-

tion and that the conviction was not final on that date.

yee

par

sincerity, integrity and honesty (Tr. 9) and later refer-

red to him as “an honored and respected member of the

Bar of this State” (Brief of the State of Indiana. Dkt.

59, p. 68). The Commissioner overruled the motion for

continuance and sustained the motion in opposition (Dkt.

40) on the grounds there was no medical evidence to

justify a continuance and the hearing could go forward

without the presence of petitioner since this was a civil

action (Tr. 16-17). Mr. Gavit was excused and the hear-

ing went forward without petitioner or his counsel in

spite of counsel’s statements under oath that he had been

unable to prepare the ease because of petitioner’s then

health condition.

On June 24, 1963. petitioner commenced serving the

sentence imposed pursuant to the income tax conviction.

On June 27. 1963, the Commissioner filed his Findings

of Fact and Recommendation (Dkt. 48). He recommended

disbarment. Despite his earlier belief that this was a civil

matter which could be heard without the presence of

petitioner, he specifically found, inter qlia, petitioner

guilty of specific acts of perjury, an indictable offense

in Indiana (Dkt. 48, pp. 7-9).

On July 29, 1963, petitioner filed exceptions to the Find-

ings of Fact and Recommendation of Commissioner Lamb

(Dkt. 53). This included an affidavit Ly petitioner and

additional maiters as a defense to matters brought out at

the hearing. The inclusion of this defensive material wis

opposed by the State (Motio: to Strike in Two Para-

graphs, Dkt. 54), and stricken by order of the Court

dated November ¥, 1963 (Dkt. 958).

(©) The State also opposed the appearance of new counsel for peti-

tioner, This was overruled by the November 7, 1965, order.

a.

A brief and petition for rehearing were filed on be-

half of petitioner (Dkt. 62, 66). In the brief, petitioner’s

counsel requested oral argument (Dkt. 62, p. 27). This

request was neither granted or denied, but was ignored.

A brief in chief and a brief opposing rehearing were

filed by the State (Dkt. 59, 67).

No evidence or wimess on behalf of petitioner has ever

been heard by the Commissioner or the Supreme Court of

Indiana. Nor has petitioner confronted the witnesses used

against him at the ex parte hearing.

The court’s opinion and order of disbarment was issued

on May 11, 1964 (Appendix B, pp. 4a ef seq.). The court

based its order on the following:

1) That from tre evidence adduced at the hearing and

unexplained by ‘am, petitioner received a vast amount

of money by way of pay-offs, protection, kick-backs, and

bribes in order that vice and gambling could operate

without interference in Lake County.C” This showed the

(0°) There is not a seintilla of evidence in this record that peti-

tioner ever received pay-offs, protections, kick-backs or bribes. In

fact, when asked about this before the MeClellan Committee pe-

titioner specifically denied it (Hearings before the Select Committee

on Improper Activities in the Labor or Management Field, 86th

Congress, Ist Sess., Part 53, pp. 18608, 18616, 18624, 18625, 18627,

hereinafter ‘‘MeClellan Hearings’). The Court also emphasizes in

this portion of its opinion that petitioner refused to cooperate with

this committee in giving any information as to gambling, prostitu-

tion and viee conditions in Lake County. Needless to say, such

questions were never asked petitioner by a committee whose function

was to investigate improper r7actices in labor or management

relations (18607). The relevant portivas of the transcript of these

hearings was introduced by the State as exhibit 27 in the ex parte

hearing before the Commissioner. Petitioner states here as he stated

in his petition for rehearing below that the ‘‘unexplained’” and

‘unchallenged facts’’ introduced in the ex parte hearing will be

shown to be pure unadulterated falsehoods in a due process hearing.

me nll

utter depravity and moral turpitude necessary to dis-

tinguish this case from Baker v. Miller, 236 Ind. 20 where-

in the court held that a bare conviction of income tax

evasion without an additional showing of moral turpitude

was not enough “or disbarment. (18a-21a).

2) That from the ‘‘unchallenged” evidence adduced at

the hearing petitioner failed to prosecute persons guilty

of violating the vice and gambling laws of the state and

that he used his office in various illegal ways one of

which was to destroy the organization of a labor ‘union.

(21a-23a) (”

3) That from the evidence adduced at the hearing,

petitioner committed perjury when he executed certain

affidavits and testified in certain administrative proceed-

ings and that he criminally violated certain other stat-

utes of Iadiana thus ecu-mitting sever different indictable

felonies. (248-27a).

4) That he was guilty of offensive personality in his

dealings with the MeClellan Committee and that he failed

and refused to cooperate with this committee particularly

(11) This refers to John Testo who was head of Locel No. 1 of

the Automatic Equipmer and Coin Machine Operators Service

and Repairman. His testimony at p. 18441 of the McClellan Hearings

is illuminating:

Mr. Kennedy: So it was really the sangsters and the

racketeers there and threats to your wife plus the help and

assistance of thé law enforcement people and officials of Mr.

Holovachka’s office and certain representatives of the police

department in Gary, Ind., that drove you cut of business ?

Mr. Testo: Mr. Kennedy, I can’t say Holovachka, and |]

don’t know that.

i

in its legitimate investigations cor-erning John Testo’s

Local No. 1 (27a-29a).©?)

5) Finally, the Court held the Comntissioner’s denial

of Counsel’s motion for a continuance was not a denial of

petitioner’s right to due process of law (29a-32a).C*)

Petitioner’s sole refusal to answer nefore the MeClel-

lan Committee was to questions concerning the source of

his income. Petitioner’s objection was that such questions

went beyond the scope of the authority of the committee

and were not pertinent to that scope. (McClellan Hearings

18606). Petitioner has never been indicted for contempt

of Congress.

(2) The committee transcript fails to support this alleged re-

fusal io cooperate; see p. 18604 where petitioner offered to

testify about Mr. Testo; p. 18626, cf. seq. concerning petitioner's

testimony about this Union when questioned; p. 18605 concerning

petitioner's offer to cooperate with the Committee as to all questions

concerning labor management relations and purported rackets in

Lake County, Indiana.

(") The Court places considerable weight on petitioner's an-

archic conduct in refusing a subpoena to attend his disbarment

hearing without giving any credence to Mr. Gavit’s plea before

the Commissioner that such conduct clearly illustrated the state of

petitioner’s nerves and health at the time of the hearing. The refusal

to respond to this subpoena is apparently a ground for disbarment

within the specification concerning the McClellan Committee. in

spite of both Mr. Gavits explanation and motion for a continuance

and petitioner's constant plea for a hearing since that time.

_—

REASONS FOR GRANTING THE WRIT.

The Supreme Court of Indiana has decided the ques-

tions presented in a way not in accord with the applicable

decisions of this Couic.

I. It is an undeniably correct premise that a State may

not arbitrarily take away a person’s license to practice

law; Cohen v. Hurley, 366 U.S. 117; Nontgsberg v. State

Bar of California, 353 U.S. 262; Schware v. Board of

Bar Examiners, 353 U.S. 232. The right to a hearing, to

confrontation with and cross examination of defendant’s

accusers before he can be excluded from the practice of

law is no longer open to question; Willner v. Committee

on Character, 373 U.S. 96. Certainly, the words of Justices

Goldberg, Brennan and Stewart in their eoneurring opin-

ion in Willner have great applicability to this cause:

‘‘Certainly lawyers and courts should be particu-

larly sensitive of, and have a speciai obligation to

respect the demands of due process.” (p. 106).

What are these demands of due process? In a hearing

of a judicial nature affecting legal rights a defendant

must be afforded the right to counsel, the right to con-

front and cross examine witnesses used against him,

and the right to be heard in his defense—that is, those

fundamental requirements of fairness which are of the

essence of due process. In sum, fair play; Morgan v. U.S.,

304 U.S. 1; Greene v. McElroy, 360 U.S. 474; Hannah v.

Larche, 363 U.S. 420.

There is little question that neither fundamental fair-

ness or fair play was granted petitioner by the Court

below. His counsel’s oath and plea that he could not pre-

pas SES

pare for the hearing because of the conditien of peti-

tioner’s nerves and health went completely unheeded. Coun-

sel’s oath that petitioner could not participate in the hear-

ing was equally unheard. Petitioner’s later effort to be

heard before the court by documents was stricken. Peti-

tioner’s counsel’s request for oral argument before the

court was ignored. Both the Commissioner and the Court

completely misapprehended the nature of the proceedings.

For more than a — was involved. This was State

action going to a‘cifizen’s right not to be deprived of his

property or reputation without due process of law. And

even the ‘‘civil action” reason for going forward with the

hearing falls in the light of subsequent findings that peti-

tioner committed indictable offenses. The denial of a hear-

ing was clearly arbitrary and erroneous. To hold such a

hearing after representations made by able and conscien-

tious counsel that his client’s nerves and health condition

made effective advocacy impossible is to make due process

of law with its “opportunity to be heard” an empty ideality.

But we urge more than reversal of error upon this

Court. From Powell vy. Alabama, 287 U.S. 45, through

Reynolds v. Cochran, 365 U.S. 525, to Gideon v. Wainright,

372 U.S. 335. *his Court has defined fair play in State

criminal proceedings io include the right in the accused to

effective counsel at his trial. This petition contains the

civil and reverse side of the coin condemned in Reynolds

where a unanimous Court stated:

‘Tf in any case, civil or criminal, if a state or fed-

eral court were arbitrarily to refuse to hear a party

by counsel, employed by and appearing for him, it

reasonably may not be doubted that such a refusal

would be a denial of a hearing, and, therefore, of due

process in the constitutional sense.” (p. 530)

— ee

If the 6th and 14th Amendment right to counsel in state

criminal cases demands effective counsel, then, the 14th

Amendment due process right to counsel in State ad-

judicatory actions threatening property and reputation

should require no less; cf. In Re Oliver, 323 U.S. 257.

II. A sharply divided Court has held that it is not a

denial of due process of law for a state to disbar a lawyer

who refused to testify before a State court; Cohen v.

Hurley, 366 U.S. 117. This case was specifically urged

upon the Court below by the State as authority for dis-

barment in this eause (Dkt. 59; Brief, p. 64). The decision

in Cohen is at least understandable when viewed within

its facts: ie., an attorney’s refusal to cooperate in an

investigation by a court of which he was an officer. But

in this cause, petitioner appeared before a legislative com-

mittee in another jurisdiction and objected to the scope

and pertinence of some of the questions asked him. Peti-

tioner understands this Court’s decisions regarding “fail-

ure to cooperate” require questions pertinent to the mat-

ter under inquiry; ef. Lerner v. Casey, 357 U.S. 468;

Beilan v. Board of Education, 357 U.S. 399. Yet no ac-

tion has even been brought against petitioner under 2

U.S.C. 192 for raising such an objection. Petitioner also

understands the ‘failure to cooperate” cases to require

advance warning to an attorney of the possible conse-

quences of his refusal to cooperate, In Re Anastaplo, 366

U.S. 82. Such advance warning was manifestly impossible

in this cause since petitioner’s appearance before the Con-

gressional Comnuttee preceded the filing of the informa-

tion for disbarment by approximately three years.

Questions not pertinent to the scope of the resolution

creating the legislative committee should not have been

asked petitioner; Sinclair v. U. S., 279 U.S. 263; Russell

se

v. U. S., 369 U.S. 749; Deutch v. U. S., 367 U.S. 456. We

believe it an absolutely lethal doctrine that a lawyer may

be subsequently disbarred by a State Supreme Court for

raising pertinency and scope objecticas to questions asked

him by a Federal legislative committee. For if lawyers

are unable to resist such legislative encroachments then

little hope may be maintained for this Court’s holdings

that such encroachments may be resisted. We urge that

Cohen be held rigidly to its facts and the law laid down

therein regarding the inherent powers of a court to dis-

cipline a member of it’s own bar for refusal to cooperate

with it after warning said member of the consequences of

such refusal. Any extension of Cohen such as exists in

this case is unquestionably that “fundamental unfairness”

which is violative of due process of law.©*

(4) The continued validity of Cohen v. Hurley, supra, is ques-

tionable in the light of Malloy v. Hogan, 378 U.S. 1. Sinee petition-

er’s correct objection to some of the questions asked him by the Me-

Clellan Committee is essentially bottomed upon his right to free

speech guaranteed by the First Amendment, eg. Watains v. U. ..

354 U.S. 178, this Court might well review its decisions involving

a citizen's “failure to ecooperate’’ as balanced against his claim of

constitutional right, e.g. Anastoplo and Cohen, supra: see also

McC'ellan Hearings 18606.

pox” ee

CONCLUSION.

For the foregoing reasons, this petition for a writ of

certiorari should be granted.

respectfully submitted,

Rosert J. Downrinec,

Wim M. Wero,

105 S. Lanalle Street,

Chicago 3, Illinois,

Counsel for Petitioner.