Petitioners Reply to Respondents Brief — Spanos Painting Contractors, Inc. v. Union Building & Construction Corp.

Gffice-Supreme Court, U.S.

FILED

FEB 4 1965

| owe aavis CLERK

ih

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1964

No. 777

RAYMOND W. FLEMING

Petitioner,

-versus-

MICHAEL S. WOLKE,

Sheriff of Milwaukee County,

Respondent.

PETITIONER’S REPLY TO

RESPONDENT’S BRIEF

Ray T. MCCANN

152 West Wisconsin Avenue

Milwaukee, Wisconsin 53203

Counsel for Petitioner

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MAMMERSMITH-KORTMEVER CO. MILWAUKEE

INDEX

Page

I TE ides tik ostetipicnctntpealiiactteenicnions i

Reply to Respondent's Statement of the Case .......... l

Reply to Respondent's Statement of Reasons for

SN A ncaa daeisdanienneomnese 3

a

a ha iat uaaaitls paseo 10

AUTHORITIES CITED

Cases Cited

Carbo v. U.S. (1961) 364 U.S. 611, 81 S.Ct. 338,

Be es I ago sais nicks sineotionnien ene aencsnonepeanaayniowen 7

Fay v. Noia (1963) 372 U.S. 391, 83 S. Ct. 822, 9

pc A IIE ic diicciicia ka ssennb cela ton taceeiahscinnsiabesionaess 7

Gover v. State of Wisconsin (1965) 26 Wis. (2d)

ON ee er I ins ercschten erenbdarsnrtctersnbones 8

Hindson v. Kersey (1765) 8 How. St. Tr. 57 Fn..... 9

Michigan National Bank v. Robertson (1963) 372

U.S. 591, 83 S. Ct. 914, 9 L. Ed. (2d) 961 ............ 5

Raley v. State of Ohio (1959) 360 U.S. 423, 79 S.Ct.

Be EE SO tien ntcctnisttsrcecicneosinacess 5

United States v. Holovachka (7th Cir. 1963) 314 F.

2d 345 cert. den. 374+ U.S. 809, 83 S.Ct. 1695... 6

Other Authorities

Black’s Law Dictionary, Third Edition, page 587... 9

Blackstone Commentaries, 129-132 ........0.c.cccceceeeeeeeeee 7

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1964

No. 777

RAYMOND W. FLEMING

Petitioner,

-versus-

MICHAEL S. WOLKE,

Sheriff of Milwaukee County.

Respondent.

REPLY TO RESPONDENT’S BRIEF ON

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF WISCONSIN

REPLY TO RESPONDENT’S

STATEMENT OF THE CASE

The detitioner was the accused and putative defendant

before the “John Doe” at the time of his appearance by

subpoena. This was unknown to him nor was he in-

formed of such status unt the conclusion of his testimony

at the secret inquiry.

]

He was subpoenied by the State to give evidence in

the proceedings conducted for the purpose of establish-

ing and inquiring into his guilt. He was. in fact. misled

by the subpoena and by its very terms to believe he wa:

to give evidence om beha!? of the State and not against

himself. He was served with this subpoen: on the very

morning he was to appear. The statement objected to by

the respondent is established by Lie very words of the

subpoena. and the inferences reasonably drawn there-

from. The issue of the subpoena and the compulsion

therein and thereby to give testimony had been duiv

raised prior to this Petition. The issue thus raised was

reated in r’e following language by the Wisconsin Sv-

preme Court in disposing of this question and the ques-

hens with respect to the constitutionality of the “John

Doe” stacute and the proceed:ags conducted thereunder:

“The other arguments of the cefendant do not

involve questions of jurisdictional defects or the facts

do not constitute such a defect. The form of the

subpoena used in the Joun Doe proceeding did not

deprive the magistrate of jurisdiction t issue the

warrant. If the defendant believes the subpoens was

improper he could have refused to testify: having

testified. ie defendaut -vaived his objection. Nor

does the defenaant’s argument that he was compelied

to testify while 2 suspect in vielanon of the Fifth

and Fourteenth amendments of the United States

constitution raise 2 jurisdictona!l question. The Fif

amendment :3 now spolicable in effect to state pro-

ceedings by virtue of the Fourteenth amendment.

Miallo. v. Hogan (1964). 378 U.S. 1. & Sup. Cz

i459, 12 LD. Ed. (2d) 653. If the defendant should

not have been interrogated while a suspect without

warning or advice that he was 2 suspect. his testi-

mony was illegally eaeies and the question of its

use can be raised by 2 proper moon to suppress

under sez. 935.99, Sr ts."

‘ea

REPLY TO RESPONDENT'S STATEMENT OF

REASONS FOR DENYING THE WRIT

I

Contrary t the respondent's statements of the basis of

the Pet on. :t is not based on ner so narrowly inmited to

Geciarin, the “John Dee” statute unconstitunonal. The

complete grounds have been repeated!v urged and state

In terms of the violation of the petnnoner’s meghts. priv

leges. and immunities uncer the United States Const:tu-

ten

Ali the substantive grounds forming the bas:s of the

Petition before this Court have been at issue. argued

and presented at all stages of the Aatees corgu: proceed:

ings and prior to ths Petinon. The respondent specine

iv recognized the issue of the constitumonalin ct me

statute 1m its appeal to the Wisconsin Supreme Court trom

the dismissal of the charges Dy the trial court amc state:

as follows in its Brief arguing at page !7. under the Title:

“Ill. EVEN IF THE DEFENDANT HAS

STANDING TO CHALLENGE THE VALID-

ITY OF THE JOHN DOE BY THIS HABEAS

CORPUS PROCEEDING. THE JOHN DOE

Is VALID AND ITs USE HAs DEPRIVED

DEFENDANT OF NONE OF HIs RIGHTS

It argued specifically at page is:

“The conmststutiomait¢t, of se tion GS4023. Star:

pit a z John Doe investigation has deen re-

tiv upheld by this Court in State ex re!. Jackson

“Colfer 679063: . 8 Wis. 2d $29, 345. ot. LisNW

3: 934, anc more recently. this Court has uphel:

the validity of the John De e (Proceedinz In Quest:

State ex rel. Nied zieiko v. Coffey (i964 | 22 wW

973 297°

4.

The unconstitutionality of the “John Doe” statute was

not claimed by the petitioner in the manner that respon-

dent indicates. It was raised specifically in terms of the

Fourteenth Amendment and was repeatedly urged in that

form. This issue was succinctly urged again at page 13

of the Brief of Defendant in Error on Motion For Re-

hearing under the title:

“The John Doe Statute Sec. 954.025 Stats. Is Un-

constitutional as Violative of the Due Process Re-

quired by the Fourteenth Amendment.”

* * * *

“There is a serious question as to the constitu-

tionality of the whol. statute, aside from the uncon-

stitutional grant of Star Chamber or inquisitorial

powers. It is manifest that if in .aw the magistrate

did act within the powers and jurisdiction granted

to him by the statute on the basis of the entire record

before the Court, then this statute avoids the require-

ments of due process, dictated by the Fourteenth

Amendment. If a person accused can be compelled

by subpoena under the pretext of giving evidence

on behalf of the state at a secret proceeding ‘vithout

being informed of his status, without the ight of

counsel as guaranteed to an accused by the Sixth

Amenément to the Constitution, compelled to give

testimony under such circumstances without being

advised of any of his rights contrary to the Fifth

Amendment to the Constitution, and thereafter the

magistrate has the power to charge such accused with

criminality following such statutory proceeding con-

ducted aturesaid, all without doing mortal insult to

the jurisdiction granted by such statute to the magis-

trate, then such statute is unconstitutional.

“The equitable rule applicabie to individuals

should be applicabie to the State:

A State cannot do indirectly by or under statute

what it is directly or expressly prohibited from

doing by the Constitution.

5

“The constitutionality of such statute is brought

into question by the writ; 39 C.J.S. Habeas Corpus,

§18, p. 458. The unconst: itutionality of a statute un-

der which detention is sought to be sustained is

ground for relief on habeas corpus.”

The respondent cites the case of Michigan National

Bank v. Robertson (1963), 372 U.S. 591, 83 8. Ct. 914, 9

L. Ed. (2d) 961, as authority for denying jurisdiction.

{t is to be noted that the ‘Court granted Certiorari and

remanded the case for further proceedings not inconsistent

with its opinion which, in effect, allowed the lower Court

to consider the question raised at first instance in the

Supreme Court.

It is respectfully submitted, that the case in point with

respect to the issues before this Court raised by the re-

spondent is Raley v. State of Ohio (1959), 360 U.S. 423,

79 S. Ct. 257, 3 L. Ed. (2d) 1344, at page 436:

“The assignments of error made by Mrs. Morgan

in the State Supreme Court show that she claimed

in that court that the iudgment of conviction was

violative of due process, as guaranteed by the Fed-

eral Constitution, in that while she claimed the

privilege, she was not ‘charged with refusal to an-

swer any questions asked by members of the Com-

mission and that she was not notified that her claim

f the privilege was rejected by the Commission.’

The State Supreme Court passed on this claim, hold-

ing that a direction to answer was unnecessary be-

cause of the immunity statute, and stated generally

that its reasoning and conclusions in her case ‘apply

with equal force to the appeal of Raley, Sterr and

Brown, 164 Ohio St. at page 532, 133 N.E. 2d at

page 108. There can be no question as to the proper

presentation of a federal claim when the highest

state court passes on 1t. See Manhattan Life Ins. Co.

of New York v. Cohen, 234 U.S. 123, 134, 34 S. Ct.

6

874, 877, 58 L. Ed. 1245. We think this sufficient

here to satisfy the statutory requireme:t that the

federal right sought to be vindicated in this Court be

one claimed below. 28 U.S.C. §1257(3), 28 U.S.C.A.

§1257(3).” (Emphasis supplied)

II

The respondent has admitted that the petitioner was

the accused when he was subpoenaed to appear before

the “John Doe”. Respondent also admits that the peti-

tioner was never advised of his rights or status prior to

the completion of his testimony before the “John Doe”.

Contrary to the facts in the case cited by the respondent—

United States v. Holovachka (7th Cir., 1963), 314 Fed.

2d 345, cert. den. 374 U.S. 809, 83 S. Ct. 1695: rehearing

den. 374 U.S. 859, {3 S. Ct. 1869—the petitioner herein

was not a lawyer, did not appear in public hearing, and

was never asked whether he wisiied to claim privilege,

or that he could claim privilege, or whether he waived

privilege, as were the facts in the case cited.

The inquiry complained of was not a police investiga-

tion but was in the nature of a judicial proceeding and

was accusatorial and it secretly focused on the Petitioner

as the accused and putative defendant.

III

The Petitioner’s complaint about the “John Doe” as a

Grand Jury substitute is not as limited or as stated by

respondent. All the authorities and statutes cited by re-

spondent as to how his future rights and privileges will

be protected in the contemplated hearings and proceed-

ings on the infamous crimes that he has been held to

answer for as a result of the “John Doe” proceedings are

held for naught. It is analogous to promising a man who

7

has been rendered totally blind that now every effort will

be made to preserve his eyes. The petitioner’s rights were

compromised in the “John Doe”. The charges of in-

famous crimes that he has been inade to answer for were

spawned from such hearing. No matter how legal, pious,

and righteous the future hearings and proceedings may

be, they cannot legitimately endow or restore those com-

promised rights with respect to or as they relate to the

infamous crimes charged as a result of the “John Doe”.

The preliminary hearing with all its safeguards during

such hearing becomes a mockery and travesty on Justice

when applied after the warrant and complaint have al-

reacy issued out of the “John Doe”. The dirty deed has

already been done. The faulty foundation laid by the

“John Doe” cannot be adequately corrected without re-

moval of all the charges which rest on or resulted from

such proceeding.

IV

In Fay v. Nota (1963), 372 U.S. 391, 83 S. Ct. 822,

9 L. Ed. (2d) 837, the long history of the writ for habeas

corpus as used in the case at kar was reviewed. It

unequivocally established that it is properly issued, as

in the case at bar, where fundamental rights have been

violated. This court specifically stated as recognized by

the trial court, but contrary to the ruling of the Supreme

Court of Wisconsin, that habeas corpus is not available

only to inquire into the jurisdiction in a narrow sense,

of the committing magistrate. Also see: Blackstone Com-

mentaries, 129-132; Carbo v. U. S. (1961), 364 U.S. 611,

81S. Ct. 338, 5 L. Ed. (2d) 329.

8

Vv

The respondent cites as ruling authority the recent

case of Goyer v. State of Wisconsin (1965), 26 Wis. (2d)

00, 131 N.W. (2d) 888, and quoted extensively from

this decision. For the purpose of a complete citation,

the last paragraph of the decision following the portion

cited by respondent reads as follows, at page 892:

“While some present justices of the United States

supreme court favor incorporation of all provisions

of the Bill of Rights into the Fourteenth amendment,

it seems unlikely that a majority of the court will so

decide thus freezing upon the states compulsory pre-

sentment or indictment by grand jury when so many

jurists and students of criminal law do not regard

it as essential to ordered liberty, and the trend for

many years has been steadily toward its abolition.”

VI

(he respondent’s argument concerning the “John Doe”

statute and the unlimited discretion granted to the magis-

trate to the effect that by its terms there is a presumption

that the magistrate wiil not abuse his discretion. If he

does abuse his discretion, this abuse of discretion can

be corrected prospectively but is of no relief to the person

whose rights have already been abused or compromised

by the magistrate’s indiscretion. This is a justifica-

tion put forth for a form of Star Chamber proceeding.

It is fundamental that under the concepts of ordered

liberty and a nation dedicated to the proposition of a

nation of men under law, and not the contrary, that such

proceedings which leave all the rights of a person to the

discretion of the magistrate who has the power of a court

to subpoena anyone before his secret inquiry under the

9

presumption that he will not abuse them is a clear invita-

tion to tyranny.

" Discretion is defined in Black’s Law Dictionary, Third

Edition, page 587 initially as:

“Power or privilege of the court to act unhampered _

by legal rule. Osborn v. United States Bank, 9

Wheat. 866, 6 L. Ed. 204;”

Lord Camden stated in Hindson v. Kersey (1765), 8

How. St. Tr. 57 Fn.:

“The discretion of a Judge is the law of tyrants:

it is always unknown. It is different in different men.

It is casual, and depends upon constitution, temper,

passion. In the best it is oftentimes caprice; in the

worst it is every vice, folly, and passion, to which

human nature is liable.”

vil

The Petition for Certiorari begs for definition of a

magistrate’s discretion as it affects the rights and privileges

of a United States citizen.

The petitioner, at the very inception of the proceed-

ings which were commenced to make him answer for the

infamous crimes resulting from ihe proceedings con-

ducted under the “John Doe” statute, urged his constitu-

tional rights as a United States citizen and petitioner did

so specifically by and in the petition and traverse for the

writ of habeas corpus. He has in all stages of these pro-

ceedings relied upon, argued, and urged the relief guaran-

teed to him by the Fourteenth Amendment to the United

States Constitution fo: the rights, privileges, and immuni-

ties compromised by the State, and also contrary to the

Fifth and Sixth Amendmenis. The Supreme Court of

10

Wisconsin interpreted their applicability, but it is re-

spectfully submitted, did so erroneously.

CONCLUSION

It is respectfully submitted that this Court has juris-

diction of the Petitioner. The Supreme Court of Wis-

consin has erred in interpreting the Uniied States Con-

stitution and its Amendments to the effect that statutory

proceedings which permit and violate the rights and

privileges of a United States citizen who is made to an-

swer for infamous crimes as a result thereof, that any

errors or abuses of his constitutional rights in or by such

proceedings were mere judicial or harmless error, or they

were waived or they can be ctired by rules of evidence.

The Const:tution and its amendments as they provide

guarantees of certain rights to individuals are to be re-

spected and protected, and.not subject to the harmless

error rule, waiver without proof of affirmative knowledge

of rights, interpreted merely by rules of evidence or their

violation allowed as judicial error.

Respectfully submitted,

Ray T. McCANN

Counsel for Petitioner

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