# Petition for a Writ of Certiorari — Pierre v. Jordan

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for a Writ of Certiorari
- **Published:** January 1, 1965
- **Citation:** 379 U.S. 974

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0225%3A2. Public record. Not legal advice.