# Petitioners Reply to Respondents Brief — Spanos Painting Contractors, Inc. v. Union Building & Construction Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0336%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Reply to Respondents Brief - **Published:** January 1, 1965 - **Citation:** 380 U.S. 912 ## Text 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 | 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 2 D2 2D ° R Ic Mi --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0336%3A4. Public record. Not legal advice.