Jurisdictional Statement — Knapp v. Schweitzer

Supreme Court brief1958

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- THE ‘

Supreme Court of the Bnited States

- OcTOBER a, 196,

~~

ae

MILTON KNAPP,

| Appellant,

against

MITCHELL D. SCHWEITZER, Judge of the Court of Gen-

eral Sessions and FRANK S. HOGAN, District Attorney

of the County of New York,

; Appellees.

o

®

JURISDICTIONAL STATEMENT.

——— —— a ——————_— —=——

0

BérnarD H. Fitzpatrick,

’ Counsel for Appellant,

. 37° Wall Street,

aa ‘New York 5, N. Y.

I NDEX.

oie sani ‘PAGE

J UBISDICTIONAL STATEMENT............0:-00---- 1

Opinions BELow................--- bc utaiouieas 1

aaah itadlaiek . ¥

QuesTIONS PRESENTED.......2...0-.00----- ; eae 4

5 i oe ee 4

2. Self Incrimination ...........-....2: yooteiesielanensenii 5

Sratures INVOLVED ...,.ccccccccccccccccccseeeeessessseeees MISLED ONS. 5

SPATE anette hancuiccaatats 6

A. Proceedings in-General Sessions...................- ae

B. Proceedings in Special Term. i eseeouncinesmpieinenes 9

_ C. Proceedings in ‘Appellate Division..............- 10 |

- D. Proceedings in Court of Appeals...

Tue QuEsTIONS ARE SUBSTANTIAL... AM ae SE Ret ill ,

1, Preemption .......0...........- stead ee eee

2. Self-Incrimination jcgreiniaciaaess Saas 18

Appenpix A,

Opinion of Schweitzer, x... Soapany_ Sere venncac era etc 23

Opinion of Markowitz, J... Lcrancietiae! <a

Opinion per Bergan, Jo....-....-.--cecceseegeeeee-es lances 35

Decision on Amendment of Remittitur__._. lea 43

| Aprenpix B, : ee :

Sfatutes Involved eamecce boss | 45

Aprenprx C, press i

Order Appealed From aati: with Amend-

ing Order ae is 51:

ii

Cases. ep

a etteee PAGE

adamson v. California, 332 U. S. 46 ae 19

| Adams v. Maryland, 347 U.S. 179 21

‘Ballman v. Fagin, 200 U.S. 186..............-c-cce-ce-cecsesscecees 21

’. Bethlehem Steel Co. v. a. Zz 4. L. R. B., 330 U. S. ni

| | NEL oR RIOR! VO Ce LEN Sie ER 4

Brown v. Walker, 161 U. S. 591... eae ee 20

Burdick v. U. S., 236 U. 8. 79 . cscs 20

‘. California v. Zook, 336 U. S. 730.....2......--.-+---000e- sauna ees 15, 16

Charleston Ass’n v. Alderson, 324 U. S. 182.............. o 4

Counsetmany. Hitchcock, 142 U. 8 ERS Ae 20

Dahnke-Walker _ Co. v. Bondyrant, 257 U.S.

Io BD anne nnannnnnsenscnntonnnsesnngrnneeenvecnnennernnnesnnnsenscensssnseenerstes 4

Ex parte Irvine, 74 Fed. 954 sabia 19

Feldman v. U. S., 322 U. S. 487....... FES OR 19

-Quss v. Utah L. R. B., No. 280, Oct. Term 1956; March

-* .. 25, 1957 ‘ 15

Jack v. Kansas, 199 U. S. 372 ssieeiadas 19

La Crosse Tel. Co. v. Wisconsin Board, 330.U. S. 18... 4

Lathrop v. Roberts, 16 Colo. 250, 27 Pac. 698.............. 20°

Mastro Plastics Corp. v. NLRB, 350 U. 8.270... «17

* People v. Cahill, 126 App. Div. 391, aff’d. 193 N. Y. 232 20

San Diego B. T. Council v. J. S. Garmon Co., No. 50

Qct. Term 1956, March 25, 1957 A REY BFP 14

Slaughterhouse Cases, 16 Wall. 36.................--.-:-::-00+ 22

Textile Workers Union v: Lincoln Mills, No. 211, Oct.

eo eS Oe =F eh. |: Se ee eee ee " §

Twining v. New Jersey, 211 U. S. 18 .escccc--ccsceeeecceneeeeens ae

0. 4. .W. v. O Bride, SEO Ui. Be BBG neeeceeesincecieecevevscoceees . 15

Ullmann v. age Wie Wik: Miia cctistiasicntsnsicgcinaesubexsieiadies 20

‘United Conciveeiies Workers v. Laburnum Constr. :

Carp., 347 U.S. 656... ek A *

SS U.S. v. Saline Bank, 1 Pet. 100................. 21

* Utah v. Montgomery Ward & Co. (1951) 120 Utah ¥

294, 233 Pac. 2nd 685. | stig Bn Oe

}

@

FR

Te tal tien Ment Se eRe Te Ce CELT ay en eee OE, ee yee Te Tee er ey te Ts

es as Rao! SSO R, Od sadist be th Ae ner ish Sarai ake Ma kc aS *

tho)

eet

“ ‘ heh” re ayy, 7

mse CRORE I Been meer e Cok wep

iii

STaTuTEs.

) aie:

; ei PAGE

, i A ||; ee eee : 3

Taft- Hartley Act, |

_ Section-302, 29 U.S. C. 186, 61 Stat. 157........ 3, 4, 5, 6,7, —

8, 11, 13, 14, 15, 16, 17; 18

Section ‘141(b) sessconseceneetnnsccnnesssneessnestnsesen esenmentnsesenee 13

>. . eRe eae eomerenaniges wesesensonensnessecoeennsnne . 14

NN IE acc esceedecientrnercomeee cca car ES

Section 158(a)(2) ............-.c-..- svsesenesenssennnesceenesenseee 11,15

Section 159(a)(c) ... 7 : 15

Section J59(b) .............- 7 15

Section SOE inne evcaciomtscetbstaatiies PONTO R: 11

New York Penal Law, oe |

Sections 380, 850 and 580, 850.......... neconinnsistah mt 4, 5, 13, 17

New York Civil Practice Act,

Article 78... pbhaiameaaan 3, 9

United States Constitution, 3 sone

Fe igs MeN test MaRS Tar . 5,1

Fifth Amendment ....0...0......0.0...0-0-0e-s 5, 11, 18, 19, 21, 22

Fourteenth Amendment . ST NAT Bh! picibllerseiliemcinal 5, 19, 22

Wagner Act, i

Section 8(2) .......... tebe ssadlbaaiiis > 11,15

INF ccsnipnsnniqnininntines aebaian weieiviaestinigines 12

AUTHORITIES.

93 Cong. Rec. 3623, Apr. 15, 1947; 1 Leg. Hist. 753;

‘Statement OF Fe SB sen ccc enannnteca 12

J. A. C. Grant: ‘Immunity from Compulsory Self.

Incrimination in a Federal System of Govern-

ment’’, 9 Temple La Q: 57, 6G....:...........ecccecscesees iaauiiies 19

4 CCH Labor Law Reporter 140355 pp. 40332, 3, pp.

OE Beanies eieeiadliclasissatinakeastiiatoces 18

“IN THE

“rem Court of the Biniter States |

OcroBER Term, 1956.

.

y

Mitton’ Knapp, .

a, Appellant,

against * #

ha , =% a

" 3 ns wget y q * 4 ‘ NM eet

4 p et Pee, MER SET TP as

re. oe PEE RNR ee oe the FR a kt Oe SE Se ee <

Ore isi se Re i nate h BEE Re FOL ce

. ’

MircHeE.y D. Scuwearzer, Judge of the Court of General’

~ Sessions and Frank §. Hogan, District Attorney of the

County of New York, ?P

Appellees.

; =

JURISDICTIONAL STATEMENT.

Appellant appeals from a final order of the New York

Court of Appeals affirming, as did the intermediate appel-

jlate court, an order of the New York Supreme Court,

‘Special Term, New York County, denying and dismissing

appellant’s petition in a prerogative writ proceeding for

review of (¢ ertiorari) and prohibition against a Mandate of

the Court of General Sessions, New York County, imposing

criminal contempt of that court.

Opinions Below.

The New York Court of Appeals handed down no opinion

but amended its remittitur to show the necessary decision of

the two federal questions involved 2.N. ¥.2d - ; <A print

of the decision slip on motion to amend remittitur will be

found in Appendix ‘‘A’’ hereto at page 43.

a fine upon appellant and committing him to jail for a . i‘

* °

. - &

os . .* 0 e

- The New York Supreme Court, Appellate Division, First 3

Department, per Bergan, J: rendered an.opinion which is

‘reported at 2 App. Div. 2d, 579 and 157, N. Y. Supp. 24. *

158, and is printed in Appendix ‘‘A’’ hereto at page

The New York Supreme Court, Special Term, New’

. York County, Markowitz, J. rendered an opinion which is

unreported ‘and which is printed 1 in i ac “_ hereto f

at page 34.

The Court of insane Sessions of New York County, ©

Schweitzer, J. tendered, an opinion which is not officially

reported but appears at 157 N.Y. Supp. 2nd 820 and is

printed in Appendix ‘A?’ hereto at page 23.

Jecleiietiin:

J urisdiction by appeal is founded upon the question of |

Federal preemption referred to immediately below. In

addition, it is respectfully submitted, both that question -

and the question of self-iticrimination presented by this |

record are sufficiently substantial and‘ important, each in

itself, fo warrant grant of certiorari.* gro

_ This proceeding originated in: the Court of General

Sessions of New York - ‘County, which on May 99, 1956

‘ summarily: convicted the appellant, who is an emplover

"in an industry affecting commerce, called as a witness

before a Grand Jury of New York County, of a criminal con-

tempt for his refusal to answer, in the course of an investi- .

» ,.gation under New York Penal Law, Sections 380, 580 and

850, dealing -with bribery of*labor union representatives,

conspiracy and extortion, questions directed to the ascer-

tainment of whether he had paid money to certain named

officials of the labor union representing his employees. The

® Cf. ‘‘The questions are substantial”, post, page 11.

CN:

Sy

; dueng

Wasi dis aaldci PRRAS ROE eT

aes

| oe | as

_ conviction overruled a contention of the appellant made on

April 30th, 1956; the first day on which a motion to punish

for contempt was made, to the effect that Taft-Hartley Act,

‘Section 302, 29 U. S. C. 186, 61 Stat. 157, authorizing cer-

tain payments by employers to union representatives and

prohibiting, under penal sanction, all other such payments,

preempted the field of regulation of such payments, where-

fore the said state statutes as here applied, were repug-

nant to the cited federal statute and furnished no basis

for the jurisdietion of the Court of General Sessions or its

appendant Grand Jury to compel his testimony.

Review'was had by petition, dated and served on the day

"of conviction,. addressed to the New York Supreme Court,

Special Term, New York County, under Article 78 of the

_ New York Civil Practice Act, a statutory substitute for the

_ writs of certiorari to review and prohibition. The petition

asserted, inter alia, want of jurisdiction in the Court of —

General Sessions by reason of federal preemption. The

petition was denied and dismissed on July 3rd, 1956. On the

same day notice of appeal to the Appellate Division of the

Supreme Court, First Department was served and filed.

The Appellate Division affirmed on Noyember 27th, 1956.

On December 1, 1956 notice of appeal to the Court of

_ Appeals’ was served and filed. The Court, of “Appeals

affirmed by final order dated March Sth, 1957. On April 4th,

1957 it amended its -remittitur toghow that. it had -neces-

-sarily entertained the aforementiofied contention of federal

preemption and decided it adv ersely. to appellant.

Notice .of appeal to this Court was setved and filed on

May 13, 1957, with the Clerk of New York Supreme Court,

New York County, that being the Court _possessed of the

record. As statedsin the notice of ‘appeal, appellant claims”

that this Court has jurisdiction by appeal under 28 U.S. C.

&

» .

4 teen

'. 1257(2), the State Courts having held valid New York

Penal Law Sections 380, 850 and 580 against a claim of

repugnance ‘to Taft- Hartley 2 Act Sec. 302, 29 Ne 8. , 186,

61 Stat. 157. -

| The ‘jurisdiction ‘of this Court by appeal i is sappirted by

the following cases:

Dahnke-. Walker Milling ‘Co. v. Bondurant, 957

U. S. 282;

La Crosse Tel. Co." wv. Wisconsin nae 330 U.S.

18; . «

Bethichem Steel Co. v. N. ¥. S.L. RB, 330 U.S.

- 767; the amended remittitur being, conclusive

- as to sustaining the validity of the State stat-

et. » utes, as applied, against a claim of repugnance;

~ * -5 Charleston Ass’ nV. Alderson, 324 U. S. 182.

S

Questions Presented.

Vv

1. Preémption.

Whether ‘New York Penal Law, Sections 380, 580 and

850, dealing, respectively, with bribery’ of labor union |

representatives, conspiracy and extortion, are, as applied

to payments passing between employ ers in industries

affecting commerce and officials of labor unions represent-

ing their respective employees, repugnant to and super-

seded by a federal statute .preempting the field of penal.

contfol of such payments, viz., Taft-Hartley Act, Section

302 (29 U.S. C. 186; 61 Stat. 157) authorizing certain pay-

ments by employers to labor union representatives and

prohibiting, urder penal sanction, all other such payments

- go as to deprive a Grand Jury of the State. of. jurisidiction

to compel, by contempt process, testimony by an employer

engaged in commerce, called as a witness, concerning pay-

y

5

ments by him to named officials of the labor u union represent-

ing his wngney ees,

2. Self Incrimination. ae

Whether an employer in an industry affecting com-.

merce, called before. a Grand Jury of the State as a

witness in the course of an investigation concerning the

state penal offenses of bribery, extortion and conspiraey

connected with labor union operations, is privileged, by.

the Fifth Amendment to the’ United States Constitution, to .-

decline to answer questions of such character that affirm-

ative answers thereto would establish the corpus of the

federal crime of unauthorized payment of ‘moneys to an

offictal of the laber union roprenapling his employees, Taft-

Hartley Act, See. 302 (29 U. S.C. 186 ; 61 Stat. 157) ; and

whetker his ensuing punishment. for contempt by a State

’ Court is not barred by the Supremacy Clause, Art. VI, Cl.

2 of the United States.Constitution and also by the “Privi-

leges and Immunities’’ Clause of the Fourteenth Amend- ;

ment. °

s

Statutes Involved.

Federal: Labor-Management Relations Act, 1947 (Taft-

Hartley Act) Section 302, 29 U. S. C. §186, 61 Stat. §157

Constitution. Art. I, Section 8 Cl. 3 (commerce) Art. VI Cl..2

(supremacy) Amendment V (self-incrimination) Amend-

ment XIV, Section 1 (privilege and immunities).

' New Yor# State: Penal Law Sections 380 (bribery of

union officials), 850 (Extortion) ; 580 (conspiracy).

The texts of the foregoing, so far as material, are set

forth in Appendix B hereto. | |

“6 ong a

Statement.

A. Proceedings in General Sessions.”

The appellant is.a co-partner of fagle Reel and Manv-

facturing Company, a Bronx (118)* concern, concededly

(223). engaged. in interstate commerce. The manufacturing

operations of Eagle Reel.are organized by a labor organi-

zation known as Local 239, International Brotherhood of

Teamsters of which one Philip Goldberg (sometimes

referred to as ‘‘Greenberg’” ° the record) is an official

(215). | : 5 :

There have existed and now exist ovstrncten! relations

between the employing firm and that local union covering

' the wages, hours and w — conditions of the smerny

(209-213).

The appellant on “April 23, 1956 appeared before the

' Third April Grand Jury of New York County and was

asked a series: of questions designed to elicit information

as to payment.of monies from appellant employer to Gold-

berg. Appellant declined to answer on the ground that the

answers, might tend to ‘incriminate him. Typical of the

questions are the following which, if answered affirmatively,

. would establish the corpus of a violation of section 302 of

the Labor Management Relations Act of 1947 (Taft-Hart-

ley Act, 29 U. 8. C. $186) :

46Q, Mr. Knapp, on or about October 28th, 1955 D,

dtd you give Phillip Goldberg, a representative of

Local No. 239, International Brotherhood of Team-

sters, the sum of $500’" (62)?

. Q. Mr. Knapp, on or about October 98th, 1955,

did you go to the Public National Bank and. Trust

Company’ at 149th Street and Prospect Avenue and

. © References are to folios in the record before the Court of

Appeals which is the record certified to this Court.

T. |

sd this check, Grand Jury: Exhibit Wusiber dies

and receive from the bank the sum of $500’’ (63) 7°

‘‘Q. Mr. Knapp, on October 28th, 1955, were yeu

‘accompanied by Phillip Goldberg, an official of Local

‘No. 239, . International Brotherhood of Teamsters, .

_.when you weut to the Public National Bank and Trust

pl ge located at 149th Street and Prospect Av e-

e” (64)? » .

wag, Isn’t it a fact that Sam Goldstein i is an official

of Local No. 239, Interpational Brotherhood of Team- oo

sters’’ (66)?

“‘Q. Did you ever pay or give arly sum n of money ;

to. Samuel Goldstein”? (67)? :

= Thereafter the ona ‘Jury conferred immunity on the

appellant. The same questions were again put to him and.

‘the again asserted ‘his’ privilege against self-incrimination.

Appellant was resubpoenaed to appear before the Grand

_ Jury on April 25, at which time the same questions were

put to him. He continued to assert -his pr ivilege and was

directed by the foreman’ .to appear before the appéllee,

Honorable Mitchell D. Schweitzer,. Judge of the Court of

— General Sessions (78-106) in Part I of that court.

There the District’ Attorney made application for a

direction by the Court to the appellant, to answer the

questions put to him.i in the Grand Jury (77). The applica- -

tion was founded upon a statement by the District Attor-

‘ney that ‘‘there is now pending’’ before the Grand Jury

a John Doe investigation of conspiracy, bribery and extor-

tion among: labor. officials (77). Appellee J udge Sehweitzer.

directed appellant to-return to the Grand Jury or April: 27

’ and answer the questions over the objection that the appel-

lant asserted his privilege’in apprehension of a danger ot

admitting the corpus of a violation of the Taft- cassia ‘Act

— 7“

.

8 | —S é, ys

"Whe appellant obeyed -the direction to return to the

Grand Jury but continued to assert his privilege and —

respectfully declined to answer the same questions. There- —

‘upon the District Attorney again procured appellant to >

appear on April 30th before appellee Judge Schweitzer, :

where the District mente moved the Court to punish the

appéllant summar'!y for contempt.

Counsel for the’ appellant thereupon, after establishing

involvement in commerce (207-228 ), raised the issue that

the Court of General Sessions had no jurisdiction of any.

offense involving the payment of money to a labof organi-

zation or its agénts by an employer in inter ‘state commerce,

the field having been preempted by the Labor Manager nent

pone es Act, 1947 (Taft-Hartley Act, ‘Sectioys 7 7 and 302) |

F226, 232-249). Judge’ Scliweitzer adjourned the proceed-

ing so that’ briefs could be exchanged on the spniniaas: of

Federal] preemption (262). Pa it

At a continuance on May 21, 1956 counsel] fort appellant

summarized his opposition to the Distriet Attor ney’s appli-

cation to punish appellant in four points (285, 286) of

whic h two are germane on this appeal:

ee ** Second, the inmmunity conferred on the witness

pursuant ‘to Sietion “447 is insufficiently broad: in-

Shat it does not cémprehend aw immunity from prose-

om under the applicable Federal statutes ;°""

‘Fourth, even if every other portion of the _pro-

ceedings were proper, the respondent coiitends that

“ - the Court and the ‘Third April Grand Jury has no

jurisdiction of the subjeet matter of the investigation

by reason of the preemption of the field by the Taft-

eo act and, in partic «ulaf® Sections 7 and 302 of

that ehactment.’? a ?

The Court expressly ruled on the preemption question

(289) and on Pre self-i pene: question (292).

9 .

Qn May 22 the Court adjudged appellant guilty of con:

i tempt, sentenced him to confinement in the civil prison

for a period of 30 days and fined him $250.

B. Proceedings in Special Term. °

- Following the commitment, appellant petitioned the -

Supreme Court, Special Term, New York County for.

+ review (certiorari) and prohibition under Article 78 of The

New York’ Civil Practice Act. The. petition recited the

partnership of appellant in thie Bronx firm, the involve-.

ment of the firm in, interstate commerce, the organization

of the plant by“Local Jnion 239, the official status of Green-

berg (Géldberg) in the U nion and the existence of collective

contractual relations between the Union and the Bronx

‘firm, the appearance of appellant as a witness befure the

Third April Graifd Jury, the questioning of petitioner to

4 elicit information as togpayme nts to Greenberg, the asser-

tion by appellant of his privilege-again= x self-incrimination,

ag the conferring of immunity upon, appellant hy the Grand

Jury and petitioner’ $ subseque mt adherenée to his elaim

of privilege, the application @f the appe Hee District Attor-

a} ney hefore the appellee Judge for an instruction to the

| appellant to answer r-and the direction to the appellant to

- answer over the following objec tions inter alia:

(a). Tat the Court of General Seasions of the

Peace of the, City and County of New York had no

jurisdiction of any offense involving the: payment of °

money to a labor organization or its agents by. an

° ‘émployer whose employees are engaged in interstate

commerce by virtue of the Labor Management Rela-

_ Act of 1947 (Taft- Hartley Act, Sections 7 and

(b) That the grant of immunity pursuant to See.

tion 2447 of the’ Penal Law is insufficiently broad

in that it does not’ bar prosecution of the petitioner

~~

10

for violation of Section 302 of the Labor Manage.

ment: Relations Act of 1947.

‘The petition below goes on to recite appellant’s oie

‘ence ta his refusal to answer, the application to punish him

| “for contempt, the adjudication of contempt and his com-

mitment. The. petition coneludes with an averment of ini-

tial application and a prayer: for prohibition and review. ~

The amended answer apparently raised no factual issue’

but denied the validity of the appellant’s objections ‘to

answering the questions, pleaded the legal insufficiency of |

the. petitf$n and prayed for denial and dismissal.

_ The reply set up inter alia, on the issye of appellant’ s

Jeopardy in respect of Federal prosecutig n, that the Fed-

eral Prosecutor, Paul W illiams, had public stated his inten-

. tion to cooperate with the appellee District Attorney in the

._ investigation of labor union bribery and extortion and that

said appellee intended on his part.to cooperate with ‘the.

Federal Prosecutor. |

No triable issue of fact appeared on the hearing and

the Special Term, upon the pleadings and the minutes of

General Sessions dismissed the petition and denied the

same. The ‘memorandum opinion (379) adopted the. rea-

soning of the opinion in the Court of besten Sessions.

2. ieatieia: in Appellate Division.

On mised taken to the Appellate Division, First

Department, a unanimous order affirming the order of the

Special Term was entered on November 27th, 1956, with ©

opinion by Bergan, J. in which all concurred.- The opinion

did not touch the question of federal preemption; it dealt

solely with the question of self-incrimination. .

“Ri ©

” | 11

* DD. Proceedings in Court of Appeals. '

The Court-of Appeals affirmed without opinion by order

of March 8th, 1957. However, it indicated, by order of

April 4th, 1957 amending its remittitur, that it had neces-

sarily. entertained the question of federal preemption and

the question of the right, under the Fifth Amendment, of

appellant to decline to answer and decided the questions

adversely to appellant.

: The Questions Are Substantial.

| & Preémption. :

‘The federal Act upon which the. preemption claim is

based, Section 302 of the Taft-Hartley Act, is substantively

sO designed that it

1. atithorizes certain payments by employers in com-

merce to employee representatives (Sec. 302(c)).

2 prohibits ‘all other payments by employers to

employee representatives (Sec. 302(a), (b)).

‘Procedurally, the Act is so. designed as to be enforceable

by penal sanction (See. 302(d)) and by federal civil action

* (See. 302(e)). In addition, many infractions of the Section

would also constitute the unfair labor practice of ‘‘co: <

pany, domination’’ (29 U. S. C. See. 158(a)(2) which would

Pas peieladibe (29 U. S..C. See. 160) by cease and desist

rders, disestablishment or other administrative measures.

The exhaustive character of this scheme is no accident.

Congress, in 1947, found itself in the position that the prior

Act, the Wagner Act, had (See. 8(2)), in seeking to prevent

‘company domination of labor unions, drawn in question

the validity of every species of financial or other support

peed

12

by an employer of a union or of the objectives of a union."

It was _— as it still i is, an unfair labor practice

. for an employer. (in commerce) ... to contribute

final or other support to (a labor organization). -

The broadness of that lengenes, coupled with the ©

investiture of the administering agency yh a ‘policy-

‘makjng function in that regard, which, though limited, wa’

‘without standards, rendered’ undesirably uncertain: the

entire subject of payments by an employer to the repre-

sentatives of his employees. ‘The uncertainties were .

obstacles to the achievement of certain legitimate objectives”

of the labor movement, including dues collection and

pension and welfare benefits. | 7

On. the other hand, the unilateral character and usually

mild remedies of the administrative process had been inef-

fective against some vicious forms of domination, such as

the bribery of labor representatives, colloquially known as

the ‘‘sell out’’,.and was inadequate to check the use, by the

unscrupulous, of the right to strike, guaranteed by Section 7.

of the Wagner Act, as a weapon of extortion.

Congress, therefore, had the. dual task of affirmatively

validating, with safeguards, those payments consonant with

legitimate labor objectives, notably the dues check-off and

welfare funds, while placing more adequate sanctions upon

domination achieved through the power. of the purse

especially in the form of bribery and upon the use of the

federally peareniere ‘‘right to strike’’ for perpodss of

extortion.

The result is a wiaibine which spells out all righteous

payments and. spells out all wrongful payments and is

remedially plenipotent. No payment. in this field « can pos-

—_

- -.) Cf, Statement of Rep. Case, 93 Cong. Ree. 3623, Apr. 15,

atehd 1 Leg. Hist. 753.

EDA SS SR ee oe

AI A REN ECE SONS

3 .

sibly be made the rectitude of which cannot be judged by

- this Federal statute and every departure from rectitude

can be restrained, corrected and punished by the Federal —

means specially provided. _

~ It is not without importance to observe that Section 302

operates as part of a larger federal statutory scheme

organically conceived?) to regulate labor,. labor organiza- .

tions, individual employees and employers in their inter-

*. e © °

relations and in their relations: to the general welfare.

The milieu is entirely federal.

Arrayed against this gapless scheme of Federal police-

-ment of payments to union officials are two statutes of

New York State upon which the authority of its Grand

Jury to enquire depends.’ One of these, the. extortion

statute,” is a statute of general, application. The grava-

men is the obtaining of property by. ‘‘wrongful’’ use of

foree or fearor under color of ‘ ‘official right.’’

The other state statute'® is oriented toward labor rela-

tions as such. Employers are forbidden to’ pay ‘‘duly |

appointed representatiyes’’ of labog organizations, and the

representatives are forbidden to receive payment with

the _degign that any official conduct of ‘the. representativ e,

including expressly the calling or prevention of a strike,

shall be influenced by the payment... Neither ‘state statute.

contains a catalogue of payments which may rightfully

:

be made.

42) Cf. 29 U.S, C. 141(b), declaring the policies of . M. R. A.

‘3) The third. state statute involved, Section 580, Penal Law,

the conspiracy count, draws whatever application it has to this case

from the bribery statute, P. L. Section 380, or the extortion statute,

P. L. Section 850.-’ Nene ‘it is not separately considered.

‘*) Penal Law Section 850, Appendix ‘‘B’’, page 49, post.

6 ) Cf. “Decision Amending a resaeallt Question 2, Appendix

‘4° , page 44 post.

6} Penal Law Section 380, Appendix “B”, page 48, ‘post.

14

It is immediately apparent that if either of these state

statutes be applied to payments passing between employers

and representatives involved in commerce, the State is

stepping into a field the rights and wrongs of which are

completely established by Section 302 of L. M. R. A. Con- io

gress has already said what is right, and all that is right,

and affirmatively permitted it; it has also said what is

wrong, and all that is wrong, and proscribed it. What room

does such an all-inclusive substantive enactment leave for

pronouncement by the states of standards of conduct based

either on identical or different. criteria?

Nor is the face of Section 302 the only matter of federal

law to be taken into account in appraising the’ question

of preemption : that Section is doy etailed into the complete

scheme of regulation of labor relations, which, save for

a few small islands, is the mare nostrum of the general

‘government. The federal interest in the labor relations

field is dominant.’ Regulation of the field of payments to

employee representatives is merely one facet of the under-

lying general policy of encouraging collective bargaining

through representafives free of the trammels of employers ;

_a policy implicit in ‘the terms ‘‘self-organization’’ and

‘‘representatives of: their own choosing’’.'*) Indeed, ‘it is

difficult to see how a state court could charge its jury on a

count of bribery or extortion inv sing labor representa-

tives unless, as, the California cour® did in the Garmon

case,'*’ it were to ‘* ‘apply’ or in some sense follow’’ fed-

eral law. The identity and status of representatives are

|) Dominance of the federal, interest.in the field of legislation

has been recognized-as a ground of preemption. - Commonwealth v.

Nelson; 350 ‘ S. 497. .

(2) 29 U. S.C. 151, 157.

(3) San Pl B. T. Council v. J. 8. Garmon Co., No. 30 Oct.

Term 1956, March 25, aves :

15

determinable federally," as is the scope of organization.

© Strike objectives and motivation, as distinguished from

methodology, are matters of federal law.’ ‘Grievance

"* time’? payments, though not specifically exemipt under Sec-

___ tion 302. are_justifiable-under Section” B(a)(2) of NLRA

(29 USC 158(a)(2)). Verily, Section 302 is but a single

seamless and it is federal.‘ °

What was said in the Guss case of another, bit related,

segment of the national labor policy may be said here:

| ‘The National Act expressly deals with the con-

“duct . - whieh was the basis of the state tribunals’

‘ eittaien."

gress has left open a remedial aspect of the conduct, for

here the National Act imposes the same sort of pone sanc-.

tion as do the state statutes.

While the preservation of the ‘‘traditional police powers

-of the states’’ is a desideratum, we do not have here the

question of whether the area should be policed as is the case

hamlet shall have two autonomous police departments.

Unlike the California statute involved in the Zook‘? case,

929 U. S. C. 159 (a), (ce).

(2329 U. S. C. ¥59 (b).

0 A.W. v. O’Brien, 339 U.S. 454.

(‘) Cf. Tertile Workers Union v. Lincoln Mills, No. 211, Oct.

federal concern to embrace substantive contract law.

> ‘ Guss v. Utah L. R. B., No. 280, Oct. Term 1956; March 25,

1957.

" 8) United Contnaiiien Workers v. Lebureum Canis Corp:,

. 347 U. S. 656.

'") California v. Zook, 336 U. 8. 730.

thread in the web of-labor relations law, ard that web is”

- And it may not be said here, as in Laburnum'® that Con-

when both'legislatures are trying to regulate different fields ,

and collide. only incidentally. Here both legislatures seek’

to regulate identical conduct; the’ question is whether one

Term 1956, Sec. June 3, 1957, for a case: extending the scope of

ss

™ : h agee

“the New York statutes here involved permit, to continue

the metaphor, each police department. independently. to

operate its own traffic control system-on the same highway.

In Zook the federal elements of the offense were determin-

able: by the proper federal administrative body. ~

When two legislative-bodies attempt to regulate the sub-

stance of so narrow a field as’ that of payments between

employers and employees’ -representatives it is but a short.

step from concurrence to conflict. There is a paucity of

decisions under these particular New York statutes which

prevents counsel from showing actual variations~6f New

York cases from the policy of the federal statuté, neverthe-

less, the.seeds of conflict are present, and no great imagina-:*

tion is required to see how easily fact situations might fer-

. tilize them. Suppose the witness in’ the case at bar, asked

whether he had paid Goldberg, were to respond:

‘¢ Yes, he said the union would strike unless I made

a donation to the welfare fund, so I gave him $500 in

cash.’’

Neither New York statute exempts welfare funds. Does the

New York court then proceed to punish for what may pos-

sibly be a valid federal purpose? Or does it examine the

federal statute, determine that the ambiguous phrase ‘such

-payments’’ in Section 302(c)(5)(B) refers to certainty of —

contribution rate rather than to certainty of benefits—and °

convict?

Or, to cull from the newspapers a publicized practical

example,''’ would New York under the narrow philosophy of

its Penal Law convict Mr. Dubinsky for accepting the con-

tribution to his welfare fund made by a manufacturer in

order to maintain competitive parity of labor costs between

his low rate non- untonizable Southern plant and his New.

')) The incident is deacribed i in an article in The New York Times

‘reproduced in this record at page 113.

17

York plant operated ‘at union wage scales? Under. the

broader outlook of LMRA, the payment, though possibly

within the technical pro} ibition of Section 302, might be a

‘protected activity’’ because it accomplishes an objective ©

sought by thé basic policies of NLURA—the ‘‘stabilization of

~ competitive wage rates and working conditions within and

between industries’. The New York ‘statutes are preg-

nant with conflict.

It is submitted that a substantial question, ‘hitherto

undetermined by this Court, drawing in question the falid-

"ity, as applied,.of New York Penal Law Sections 380,-580

and 850 on the ground that -they are repugnant to Taft-

Hartley Act Section 302 and the Commerce clause of the

“Constitution, exists: ‘that notice of appeal, setting forth

that question has been served and filed within the 90 days

succeeding March 8th, the date of: the order of the State

Court of last resort, and that appeal, therefore, lies.

Apart from the substantiality of the question, reasons

. for review exist. There appears fo be a conflict, at least in

principle, on the question of preemption between the deci-

sion of the New York Court of Appeals i in the instant case

~ and ‘the decision of the highest court of Utah. Utah v.

Montgomery Ward & Co. (1951), 120 seh aa 294, 233 ae. 2nd

_ 685.

The Supreme Court of Utah’had held a tele of that

state, making it a crime for an erfiployer to decline to honor

a checkoff assignment made by an employee in favor of a —

labor union, repugnant to Section 302 of the Taft-Hartley

‘Act. Although the express reasoning of the Montgomery

Ward opinion rests upon the rather narrow ‘‘checkoff’’

provision of Section 302(¢), it would seem that, the entire

subject of payments to representatives, being regulated to

bidhaliatil \ '

(1) 29 U. S. C. See. 151. For a similar subordination of the

language of the Act to its basic policies cf. Mastro Plastics Corp.

v. aomm 350 U. 8.270...

ee

;

-

18

‘the point of exhaustion by Section 302, it is, necessarily

embraced within the reasoning and a conflict in principle

exists. The denial of certiorari by this'Court in the Mont-

. gomery Ward case affords no basis for resolution of the

conflict. aa | }

A resolution of this question of preemption is impor-

tant to the administration of the laws of many states. Four

states have bribery statutes specifically relating to labor

representatives.” Twenty-five states-have statutes govern-

ing in various ways, the ‘‘checkoff’’.- It may. be assumed

* that all states prohibit extortion; although whether the

strike weapon is regarded as a means of extortion in all

_ states is necessarily not precisely determinable.,

% It is respectfully submitted that the preemption ques-

tion is substantial. It is further submitted that, even if the

"question were not appealable; it has an importance sufficient

‘to warrant grant of certiorari. ©

2. Self-Incrimination

_ Appellant is required, under criminal penalty, by the

courts of New York, to confess to having committed the

corpus of a Federal crime, or to deny the same. Although

the New York State Constitution prohibits compulsory

self-incrimination, fhe Court of Appeals has’denied him

: its protection and he is concluded on that issue. Hence he

2 is here in naked reliance upon the Fifth Amendment to the

Federal Constitution, maintaining that by its terms he

‘may not be compelled in any. tribunal—even that of a state

—to confess a federally. cognizable crime.

(1) 342 U.-S. 689. .

(2) 4 CCH Labor Law. untae Hews pp. 40332, $

vc

19

It may be said, even in the face of dictd in Jack v.

Kansas" that the question is one of first impression. Nor.

did the Feldman case’, w herein testimony giv en under state

immunity was held usable in a federal prosecution, involve .

the question, for there was in that case no timely assertion

of federal privilege. The appellant’s contention here is

not the contention raised and disposed of in the Twining’ |

and Adamson‘* cases that the prohibition of the Fifth

Amendment i is, by therimplications of the. Fourteenth, con-

trolling on the state in the administration of state law.

Whatever be the merits of those cases ne are not in issue

here.

Here. the contention is ‘that by direct force af the Fifth )

‘Amendment, no citizen may be compelled to incriminate

himself of federally’ cognizable crime in any tribunal—be

it state or federal. He ‘would have the Court read. the

amendment thus

‘No person * * * shall be compelled in any [fed-

eral] ‘criminal case to be a witness against himself.’’

°

®

Thus read,‘ the Amendment is a buaranty to him of. safety

against federal prosecution inspired by or based upon

testimony wrung from him by compulsion. The limitation

e

‘11199 U. S. 372. The state court had limited.the scope of

puny to intrastate transactions; it is difficult to «see that any

deral question was presented by the record: The dicta were,

however, reiterated in other cases decided on the ‘dual sovereignty’?

theory. none of which involved a state inquiry. The Jack case is

the only ease in this Court involving the point. ef. J. A. C. Grant:

“Immunity from Compulsory Self Incrimination in 4 Federal

System of Government’’, 9 Temple L: Q.’57, 68.

(2) Feldman v. U. S., 322 U. S. 487. mie.

(3) Twining v. New Jersey, 211 U.S. 78.

(4) Adamson v. California, 332 U. S. 46.

() Barron vy. Baltimore. 7 Pet. 243. The other safeguards of

the Fifth Amendment are likewise so limited; grand jury, double

jeopardy, due process (until the adoption of the Fourteenth).

°

_—

20

is a limitation upon the action of the prosecuting arm of.

’ the federal government. This is the clear import of the

‘immunity cases," of the pardon cases,‘) of the statute of

limitation cases‘ and of the autrefois adjudication cases.”

.. Where the prosecution is completely barred, the privilege

* dies; where it is not the privilege lives.“ The privilege does

not exist where the danger apprehended i is not a — of

prosecution. (©)

Around the fundamentals of the. ittiiens there has

grown up—with sound reason and with legislative as well:

as judicial aproval-the ancillary right of declining to

testify in. any inquisition, whether or-not the witness be

under indictment or presentment, or whatever pe the pur-

pose of the inquisition. - This ancillary right exists not

because there is any danger to the witness in the inquisition,

but because the prosecuting arm of the federal government

might be bestirred by the revelations made in the course

_ of the inquisition. The law fears the creation of a tandem

between inquisitor and prosecutor whereby a person under

compulsion may be forced to feed the prosecutor to his own

damnation.

The,right to decline to answer before a purely inquisi-

torial body: such as a Congressional committee is merely

ancillary to the right to avoid federal prosecution springing

from one’s.own testimony. A Congressional committee is

limited in its inquiry not because it is a federal agency.but

because its compulsion might aid or.inspire the action. of a

(1) Counselman v. Hitchcock, 142 U. S. 547.

(2) Brown v. Walker, 161 U. S. 591.

(3) People v. Cahill, 126 App. Div. 391, aff’d 193 N. Y. 232.

(4) Lathrop v. Roberts, 16 Colo. 250, 27 Pac. 698.

(5) Counselman:'v. Hitchcock, supra; Burdick v. U. S., , 236 U. S.

. 19; Ex parte Irvine 74 Fed.. 954:

. © Ullmann v. U. 8., 350 U. S. 422.

21

federal prosecuting: agency. The right arising from the -

Fifth Amendment is primarily a right to avoid prosecution

or conviction and only secondarily a — to ome to

testify.

Thus when it is said that the Fifth hntulieniak is a

limitation upon the operations of the federal government

and not a limitation upon the states, what is meant is that

the primary right—the right to avoid prosecution.or con-

viction—is a right to avoid federal prosecution or federal

conviction; and conversely, that the Fifth Amendment is

not designed as a protection against state prosecution or

state conviction." The statement has no relation to the

ancillary right of refusal to testify or to the tribunal in

which the ancillary right is asserted.

The question then becomes: May a citizen, possessed

got a right to- avoid a federal prosecution to which there

is ancillary a right to decline to testify, be deprived of that:

ancillary right by a state? Stated in another way: Maya

_state-‘make itself part of a tandem whereby a federal prose-

cutor may convict through state testimonial compulsion? .

It is respectfully submitted that these queries must be

answered in the negative. The ancillary right to decline

testimony is as federal in origin as the primary right from

which it springs—the right .to avoid federal prosecution.

Asa right originating in a federal constitutional immunity,

it is, part of the neeewe law of the land and is binding

upon the states." .

Moreover, since the privilege and the immunity spring

from the Federal Constitution, they are privileges and

@ Though Seliel tribunals recognize a claim of self-incrimi-

nation where danger of state.-prosecution is apprehended, the

recognition is not placed upon the footing of the Fifth Amendment.

ef. U.S. v. Saline Bank 1 Pet. 100; Ballman’y. Fagin 200 U. S. 186.

(2) Cf. Adams v. Maryland, 347 U. S. 179 for a case applying the

supremacy clause in testimonial matters; a federal statute barring

use of testimony in ‘‘any court”’, held to bind state courts.

immunities attaching to appellant in his capacity as a citi-

zen of the United States. ‘Hence, by the Fourteenth Amend-

ment they may not be abridged by the states, While the

tenor of prior decisions is to the effect that the Fourteenth

Amendment is not a mandate on the states to observe the

‘provisions of the Fifth Amendment in respect of self incrim-

ination, the case at bar involves a right of that limited

class sie oe

. out of the nature and essential character of

ie aaa government and granted or secured ‘by

the Constitution.” ‘“S

The question presented is not only. substantial; it is

_ obvion:sly important to the administration of justice by the —

states.) The increasing complexity of modern life is bring-

“ing about mtore and more federal legislation dealing with

subjects on which there is state legislation; the. areas of

contiguity are constantly expanding. . The problem posed,

by this dase will be an oft- “recurring premem,

Dated June 6, 1957.

. e.

Respectfully submitted

Bernarp H. Frrzpatrick ‘

* Counsel for Appellant .

37 Wall Street

New York's, > » 2

) Duncan v. Missouri, 152 U.S. 382; Slaughterhouse Cases, 16

Wall.

(2) io National Association of Attorneys-General in Septenfber

1955, by vote of 23 to 14 passed a resolution calling for the enact-

ment of a federal act permitting states to grant immunity against °

federal prosecution in cases involving subversion, complaining that,

in practice, the federal danger made witnesses reluctant. N,. Y.

Times 9/18/55 p. 19: 2-3. ‘Although the’ field of subversion has

been declared preempted, obviously the egndition is operative in

other fields.

G

»

a 7 if

APPENDIX A.

. Opinions Below

Opinion of Schweitzer, J.

COURT OF GENERAL SESSIONS.

"(157 N. Y..S. app. 2d 820 sub riom. People v. Knapp).

[Same Tittr. ] |

ScHWEITZER, J.:

This is an application by the District Attorney pursuant

‘to the Judiciary Law (§$750, 751) to have the respondent

Milton Knapp adjudged in Contempt of Court for refusing

to answer, certain questions asked of him upon his appear-

ance as a witness before the Third April, 1956 Grand Jury

of this Court. ~ : .

“Among the- proceedings pending before that Grand Jury

was one entitled ‘‘People against John Doe, et al.’’, an

inquiry designed to determine whether the crimes of Con-

spiracy (Penal Law, §580), Bribery of Labor Representa--

tives (Penal Law, §380) and Extortion (Penal Law, §850)

were being committed or had been committed in this county.

In the course of that inquiry, Milton Knapp, one of two.

partners conducting business as Kagle Reel & Manufactur-

ing Co., was subpoenaed to appear before the Grand Jury

and.to produce .certain books and ‘records. He appeared

before the Grand Jury on April 23rd, 1956, was duly sworn .

_ and was asked the following question:

* «Q, Now, who represented the union in these

>» negotiations leading to a salary increas@?”’

The witness refused to answer that question, stating that

he did so on the advice of his lawyer and on the ground that

it might tend to incriminate him.

| g

$4 ;

The Grand Jury thereupon voted to grant the witness

immunity, in accordance with the. provisions of section

2447 of the Penal Law, and at the express request of the

. Distri¢t Attorney, the foreman of the Grand Jury directed

- the witness to answer,the question. The witness, however,

again: refused to answer on the same ground of possible

self-incrimination.

Two days later,-on April 25th, 1956,. the witriess -

reappeared before the Grand Jury and while under oath,

was asked a series of questions, each of which he refused

to answer on the ground of possible self-incrimination,

notwithstanding that the foreman ‘of the Grand Jury, at

the District Attorney’s request, directed the witness to

answer cach quéstion, thereby assuring him of the immunity

provided for by section 2447 of the Penal Law.

The questions thus put to the witness, which he refused

to answer, were as follows:

«Q, Mr. Knapp, do you know a man named.

Philip Goldberg?

Q. Mr. Knapp, do you know ‘whether. Philip

Goldberg is an official of Loc: ‘al No*239, International

Brotherhood of Teamsters? :

-Q. Mr. Knapp, on or about October 28, 1955,

did you give Philip Goldberg, a representative of |

Local No; 239, International. Brotherhood of Team-

sters; the sum of $500.00?

SQ. Mr. Knapp, I show ‘you this check: marked

.. Grand Jury Exhibit one of today’s date in the sum

. of $500.00 and ask whether you recognize it.

Q. Mr. Knapp, on or about October 28, 1955, did

you go to the Public National Bank & Trust Com-

pany at 149th Street and Prospect Avenue and cash

this check; Grand Jury Exhibit No. one, and receive

from - Pay the sum of $500,007

Q: . Knapp, on October 28, 1955, were you

Y ae at d by Philip Goldberg, an official of Local

No: 239, International Brotherhood’ of Teamsters,

}»

when you went to the Public National Bank & Trust |

}

}

.

Fe Be a er

as a ; 95

eo located at 149th nea and Prospect

Avenuef

Q. Mr. Knapp, J agai, hes you: Grand Jary

Exhibit No. one of todfy’s date and ask whether.

your handwriting appears on the face of that check?

Q.’Mr. Knapp, I show you a stub book that

appears to be a check stub book, and I ask you to

examine this check stub book and tell me whether

your handwriting appears on the space assigned to

No. 2908, that is, the box? pee

Q. Mr. Kaapy, I direct your attention to the box

No. 2908, and-I ask you to tell the Grand Jury what

jnitial appears before the name, Goldberg?

Q. Mr. Knapp, I ask whether Grand Jury Exhibit

No. two of today’s date is in fact a stub book used

by the Eagle Reel and Manufacturing, Co.? :

Q. .Mr Knapp, when was the last time you spoke

to Philip Goldberg?

Q. Do you know a man named ‘Sam Goldstein?

.Q. Isn't it a fact that Sam Goldstein is an official

of Local No, 239, Inte rnational Brotherhood .

Teamsters? 3

Q. Did you ever pay or give any sum of money

to Sam. Goldstein? :

The District Attorne ‘y and the foreman thereupon

‘applied to this Court to direct the witness to answer the

foregoing questions. Following a hearing at which the

_ witness was represented by counsel, this Court ruled that

the questions were proper in eyery respect and directed

-the witness to return to.the Grand Jury room and to

‘answer each of the questions.

On April 27th, 1956, the witness reappeared before the

Grand Jury, each of the questions was again read to him,

and he persisted in his refusal to answer each of those

questions on the same stated roan of sta? self-incrim-

ination.

26

Thereupon, on April 30th, 1956, the present application

was made to this Court for an order adjudging the witness,

Milton Knapp, in Contempt of Court. A further hearing -

was held at which the witness was again represented by

counsel. At this hearing, the witness raised the objection

that the entire investigation by the Grand Jury was beyond

its jurisdiction, the claim advanced being that the business -

in which the witness was engaged was an industry affect-

ing interstate commerce, and that section 302 of the fed-

eral Labor Management Relations Act, 1947 (the so-called

Taft-Hartley Act), 29 U. S. C..§186, had completely. pre-*

“-empted the subject matter of payments made by an |

employer to a representative of employees in any industry

affecting interstate commerce, and thereby rendered inop-

erative any state legislation on the same subject matter.

Section 380 of the Penal Law is éntitled ‘“‘Bribery of

Labor Representatives’’,.and, makes it a misdemeanor for

- any duly appointed feprésentative of a labor organization

to solicit, accept or ne to accept a bribe from any person

for the purpose of influencing his ‘‘acts, decisions, or other

duties as such representative’’ or for the purpose of induc-

ing him to poss from causing or preventing ‘‘a strike or

work stoppage or any form of injury to any business”’;

and it also makes guilty of a misdemeanor any person who

gives or offers a bribe to such a representative for any such

purpose. (See People v. Cilento, 1 A. D. 2d 206, 207, 208.)

Section 302 of the Taft-Hartley Act (29 U.S. C. §186),

on. which respondent witness here relies, makes it a mis-

demeanor, subject to certain stated exceptions, for an

employer ‘‘to pay or deliver, or agree to pay or deliver,

ayy money or other thing of value to any representative

of any of his employees who are employed in-an'industry

affecting commerce’’, and likewise nfakes it a misdemeanor

for any such representative ‘*to receive or accept, or to

agree to receive or accept, from the employer of such.

employees ang money or other thing of yalue’’. The sec-

tion has te ical by the United States: Supreme

Court as creating a criminal offense of the nature of

malum prohibiium, and as outlawing ‘‘all payments, with

27

4

+

stated exceptions, between employer and representative”

(United States v. Ryan, 76 S. Ct. 400). :

It has long been settled that ‘‘the same act might, as to

its character and tendencies, and the consequences it

involved, constitute an offense against both the State and

Federal governments and might draw to its commission the

penalties denounced by either, as appropriate to its char-

acter in reference to each’’ (California v. Zook, 336 U. S.

725, 731, quoting from United States v. Marigold, 9 How.

560, 569; and other cases there cited).

The questiori, in essence, where the federal government

has legislated on a subject within its jurisdiction and

there is also state legislation affecting the same subject, is

whether Congress intended to make its jurisdiction exclu-

sive, thereby displacing the state statutes. It is established

that ‘‘normally congressional purpose to displace local laws

must be clearly manifested’’ (California v. Zook, supra, 336

U. S. at 733, and cases there cited). And where the claim

is thatthe state legislation conflicts with the federal enact-

ment, .‘‘it 1ust be clear that the’ federal provisions are

inconsistent with those of the state to justify the thwarting

of state regulation” (Cloverleaf Butter Co. v. Patterson, —

315 U. S. 148, 156).

One of the faetors which — been given great weight

in determining that Congressional action was not intended.

to override state legislation in the same area, has been that

the state laws, if that be the case, are aimed at evils within

the scope of the state's traditional police powers. Thus, in

For v, Olao, 5 How. 410, it was held that the act of passing

counterfeit money, though a crime under the federal Crimi-

nal Code, could also be punished by the staté as the’ per-

pétration of a fraud on the person to whom the spurious

money was passed (see Commonwealth of Pe mnsylvania ¥,

Nelson, 76 S. Ct. 477,479, decided April 2nd, 1956). And in

Gilbert v. Minnesota, 254 U.S. 325, a state enactment which

prescribed ihterference with, or discouragement of, the

enlistment of men in the military or nayal service of the

United States or of the state, was upheld as a valid ‘local

28

police measure’”’, notwithstanding existing federal legisla-

tion on the same subject (see Commonwealth of Pennsyl-

vania v. Nelson,.supra, 76 S. Ct. at 479). ;

It has similarly been observed that the punishment of

such acts as extortion, fraud and violence, among others, is

within the ambit of the state’s ‘‘usual police powers’’,

"which will not be deemed displaced by regulatory federal _

. — legislation in the field in which such agts are committed, in —

the absence of an express manifestation of such a Congres-

| sional purpose (see California v. Zook, supra, 336 U.S. at

732, 734-5). * :

‘It should never be held that Congress intends to

supersede or by its legislation suspend the exercise’ of the

police powers of the States, even when it may do so, unless

its purpose to effect that result is clearly manifested.”

(Reid v. Colorado, 187 U.S. 137, 148; see Kelly v. Washing- |

ton, 302 U. 8.1.11). . \ . oo oe

Extortion (Penal Law, §850 et seg.) and bribery in con-

nection with labor relations (Penal Law, -§380) have long

been the subject of regulation in this state. They are cer-

- tainly within the ambit of the historic and traditional police |

power of the state. There is nothing in the language of the

federal statute here involved or in its legislative history to

suggest that Congress intended to foreclose the states from

continuing to protect their inhabitants from such evils. On

the contrary, such sources of Congressional intent as are’

available indicate that Congress did not propose to invali-

date existing state legislation on such subjects or to pre-

dude state action with regard thereto.

. Respondent relies on a series of Supreme Court decisions

in the field of labor relations which have held that the broad

‘ powers conferred ypon the National Labor Relations Board

by the Taft-Hartley Act for the regulation of unfair labor

practices, operate to preclude the states from exercising

jurisdiction over sueh practices, either in the administrative

or in the judicial sphere, where the acts complained of do

not reach the stage of violence or unlawful coercion (Garner

v. Teamsters, Chauffeurs & Helpers, etc., 346 U. S. 485;

29

Weber v. Anheuser-Busch, Inc., 348 U. S. 468; United Mine

* Workers v. Arkansas Oak Flooring Co., * U.S. ,

24 L. W. 4197, decided, April 23rd, 1956). In Garner v. .

Teamsters, Chauffeurs & Helpers, etc., supra, the Supreme

Court, however, emphasizeds. (346 U. S. at 488):

“The national Labor M anagement Relations Act,

as we have before pointed out, leaves much to the

states, though Congress has refrained from telling

us how much. We must spell out from conflicting

indications of congressional will the area in which

state action is still permissible. »

This is not an instance of injurious conduct which

the National "Labor Relations. Board is without

express power to prevent and which therefore either

is ‘governable by the State or it is entirely ungov-

erned.’ In such cases we have declined to find an

implied @xclusion of state powers, International —

Union v. Wisconsin Board, 336 U. S. 245, 254. -Nor

is this a case of mass picketing, threatening of —

employees, obstructing streets and highways, or pick-

eting homes. We hare held that the state still may

erercise ‘its historic powers over such traditionally

local matters as public safety and order and the use

of streets and highways’. Allen-Bradley Local v.

Wisconsin Board, 315 U. 8. 740, 749.’?” (Emphasis

supplied.)

_ The Supreme Court has thus held that applicable state

‘ remedies were not superseded by the jurisdiction reposed

in the National Labor Relations Board, where the acts in

question involved mass picketing, threats of violence-and —

obstruction of public ways (Allen-Bradley Local v. Wis-

consin Board, 315 U. S. 740) or constituted unlawful coer-

cive tactics (Auto. Workers v. Wis. Board, 336 U. S. 245).

In the latter case, the Court declared (336 U.S. at 252-253) :

‘“‘Congress has not seen fit.in éither of these

Acts [the Taft-Hartley Act and the earlier Wagner

Act]: to declare either a general policy or to state

we”

30

specific rules as to their effects on state regulation

. of various phases of labor relations over which the |

several states traditionally have exercised control.

* * * However, as to coercive tactics in labor con-

troversies, we have said of the National Labor

Relations Act what is equally true of the Labor Man-

agement Relations Aét of 1947, that ‘Congress

designedly left open an_area for state control’ and

that the ‘intention of Congress to exclude States

from. exercising: their police’ power must be clearly

manifested.’ Allen-Bradley Local v. Wisconsin

Employment. Relations Board, 315 U. S. 740, 750,

749. @ @ 639)

Similarly, in United Workers v. Laburnum Corp., 347

U. S. 656, it was held that the Taft-Hartley Act did not

preclude the maintenance of a common law tort action in

_ a state court for damages based upon tortious conduct of

certain labor organizations, inv ol¥ ing threats of violence

and intimidation, notw ithstanding th t' such acts also con-

stituted unfair labor practices as de ined by the federal

statute. In its opinion in that case, the Court quoted from .

the Senate Report (No. 105, 80th Cong.,.1st Sess. 50) pre-

ceeding the adoption of the’ Taft-Hartley Act, as indicative

of the design of that Act not to supersede state regulation

' where the acts to -be regulated by the federal Act. were

also ‘‘illegal under State law’’ (347 U. S. at 668). The

Court also quoted from a statement made by Senator Taft

- on the floor of the Senate that ‘‘There is no reason in the

world why there should not be two remedies for an act of

that kind’’ (347 U. S. at 668-9).

There is no claim or suggestion that the acts here under

investigation by the Grand Jury constitute ‘‘unfair labor

practices’’ subject to the exclusive jurisdiction of the

National Labor Relations Board. Decisions such as Garner

v. Teamsters, Chauffeurs % i ‘Helpers, etc. and Weber v.

Anheuser-Busch, Inc., suprg, are therefore inapplicable.

Rather, the situation here presented is more closely

31

analogous to the other cases peted above, in which the.

Supreme Court held that acts. of violence, intimidation,

disorder and tortious injury remain subject to state regula-

tion for the safeguarding of local interests, notw ithstanding

the enactment of the Taft-Hartley Act.

Respondent also cites the recent décision of the Supreme

Court in Commonwealth of Pennsylvania vy, Nelson, supra,

76 S.Ct. 477, where a Pennsylvania -sedition statute’ was

held to have been superseded by the federal anti-sedition

legislation. Iy reaching that conclusion, however, the Court

emphasized that the federal legislation touched ‘*a@ field in

which the federal interest is so dominant that the federal

system must be assumed to preclude enforcement of state

laws on the same subject’’ (p. 481), and that the ‘“‘enforce-

ment of state sedition acts presents a serious danger of

conflict with the administration of the federal . ‘program’”” :

(P. 482). The Court further pointed out that sedition was

‘‘not a local offense’’ but rather ‘‘a crime against the

Nation’’ (p. 482). It is significant that the Court further

noted the limits of its decisiovt in the following Words

(p, 479): |

-._ ‘Neither does it limit the right of the State to.

protect itself at any time against sabotage or.

attempicd violence of all kinds. Nor does it prevent

_the State from prosecuting where the same act con-

stitutes both a federal offense and a state offense

under the police power * * *."’

In the present case there is no doubt that the crimes of

Bribery of Labor Representatives, Extortion and Con-

-spiracy, which are the subject of ‘the pending.Grand Jury

investigation, constitute local offenses within the reach of

the state's traditional police powers, The mere fact that

section 302 of the Taft-Hartley Act in a measure parallels

the state statute governing one of these crimes, i.e., that of

Bribery of Labor Represe ntatives (Penal Law, £380), does

not operate to invalidate the state enactment (California v.

Zook, supra, 336 U. S. at 730). The pertinent decisions

Me

make it clear that Congress will not be taken to have

intended to debar the sfate from safeguarding its citizenry

from pernicious evils of this kind. No conflict -has been

shown to exist, or is to be found, between the local statutes

here involved. and either the terms or the policy of the

federal legislation. There is consequently no basis for

holding that the state is without jurisdiction of these —

offenses, or that the Grand Jury lacks the power to con-

duct an- investigation in relation thereto.

As a further justification for his refusal to answer the

questions asked by the Grand Jury, respondent urges the

fact that he has not been granted immunity thereby from

possible Federal prosecution. _

_ In this connection, it need only be observed that the

immunity granted respondent (Penal Law, (2447) was the

maximum which could be granted by this State (Pedple

v. Breslin, 306 N. Y. 294, cert. denied, 347 U. S. 1014). Con-

sequently, the requirements of both the State and Federal

Constitutions have been satisfied [Brown v. Walker, 161

U.S. 591; Jack v. Kansas, 194 U. 8.372; Feldman v. U. S.,

322 U. S.:487, 493; People v. Breslin, supra; Dunham v

_ Ottinger, 243 N. Y. 423, 438; Matter of Herlands (Carchi-

- etta), 204 Mise: 373].

Respondent: finally contends that this Court Inay not

punish him’summarily, since the Grand Jury is not in the

immediate view and presence thereof, and that the proceed-

ings must be initiated by an order to show cause.

“ JTn-answering this contention, we need not’ consider —

whether the original refusal to answer the questions’ put

by Grand Jury was a contempt committed in the construe-

tive presence of this Court, since this Court heard sworn

testimony by the-Grand Jury stenographer both as to this

original refusal and as to the subsequent refusal after a

specific direction by this Court. Furthermore, respondent, .

in open court, has stated his refusal to answer the ques-

tions, thereby reaffirming the position taken before the

Grand Jury. Under the circumstances, respondent’s con:

_ tempt was committed in the view and presence of this

‘Court (People ex rel. Hackley v. Kelly, 24 N. Y. 74). No

further proof is necessary (Douglas v. Adel, 269 N. Y.

144, 146-7).

Even were it ania, it would be an idle gesture to

serve respondent with an order to show cause. Respon-

dent has been fully advised of the specifications upon which

this application is based and has been represented by

counsel at all stages of the proceedings herein. ReSpon-

dent and counsel have appeared in this proceeding on five

different days, over the period of a month. There have

been hearings, at which respondent vigorously urged

defenses of law, and made no attempt to controvert any of

the material facts herein. Briefs have been submitted by

both parties. ‘Consequently, the statutory requirements

(Judiciary Law, §751) applicabie to criminal contempts not

committed in the view and presence of the court have been

satisfied (Spector v. Allen, 281 N. Y. 251).

‘It is therefore my conclusion that respondent witness

was not justified in refusing to answer the questions put °

to him, and that the application to. panes him for eon-

tempt must be granted.

I sentence the defendant to the term of thirty (30) days.

in Civil Prison and fine him the sum of Two Hundred and

Fifty Dollars ($250).

/s/ Mircnet, D. Scuwerrzer

Jadge, Court of General Sessions.

Dated New York,

May 22, 1996.

‘gy

wh

Opinion of Markowitz, J.

SUPREME COURT,

Srecia, Tkrm, New York County.

(N. Y.‘L. J., June 28, 1956, pg. 1, Col. 6.)

~ Knapp v. Schweitzer—This is an application, pursuant

to article 78 of the Civil Practice Act, wherein petitioner

seeks.a review, of the judgment of the Court of General

Sessions, New York County, which held him in contempt

of court pursuant to sections 750 and 751 of the Judiciary

Law. Petitioner was sentenced to thirty days’ impriscn-

ment in the civil jail and to pay a fine of $250. The contempt

adjudication is predicated upon petitioner’ s repeated

refusal to answer certain questions asked of him, before the

Third April Grand Jury of this county. Petitioner had

been accorded immunity pursuant: to Penal Law section:

2447, and directed to answer by the said court. While the

instant application is made under article 78 of the Civil |

Practice Act, by express statutory. provision (Judiciary

Law, section 752), petitioner also seeks relief in the nature -

of prohibition against both the judge (Schweitzer, J.) who

committed him, and the District Attorney of New York

County to prohibit any further proceedings in respect to °

the refusal to answer the questions put to him. Thé con-

tentions of the relator were ‘adequately and completely

answered in the learned opinion of Judge Mitchell D.

Schweitzer. The application is without merit. Accordingly,

the petition is denied in all respects and is dismissed. Settle

order.

35

Opinion.

SUPREME COURT,

AppetiatTe Divisios—Finst DeparTMeENtT. a

e 2 eee | September 1956. .

Bernakp Boren, J. P., "

‘$

Bengamin J. Rasin,

JosepH A. Cox, ;

Martin M. Frank, Ae

Francis Berean, JJ. |

>

[Same TIT te. ]

Appeal from order of the Supreme Court at Special Term

(Markowitz, J.) entered July 3, 1956 in the New York

County Clerk's office dismissing petition to review judg-

ment of the Court of General Sessions, New York County,

adjudging petitioner in contempt, sentencing him to jail

and payment of-fine, for failure to answer questions before

Grand Jufy on assertion of claim of privilege against

self incrimination.

Bernarp H, Fire -arricx, of counsel (Witiiam J. Kear-

ING with him on the brief; Wim J. Keatine and

Butter, Bexnerr & Firzparhkick, attorneys) for —

Appellant.

Apert P. Loexixe, Jr., Assistant District Attorney,

of counsel (Cuartes W. Mawyine, Assistant Dis-

trict Attorney, with him on the brief; Frank S,

Hocan, District Attorney, attorney) for Respond-

ents.

Berean, J.:

Petitioner, Milton Knapp, has been committed for con-

tempt by the Court of General Sessions for failure to

answer questions before.the New York County Grand Jury.

36

He is a co-partner of Eagle Reel and Manufacturing Co.,

which is engaged in interstate commerce. The employees

of the firm are organized by Local 239 of the International

Brotherhood of Teamsters.

The subject on which the Grand Jury inquiry was being

prosecuted and in which the testimony of petitioner was

sought to be elicited was whether the crime of bribing labor

representatives, under Penal Law, §380; of conspiracy,

under §580; and of extortion, under §850, had been. com-

mitted.

_ 4 When ealled before the Grand Jary on April 93, 1956,

petitioner asserted his privilege against self-incrimination.

This privilege is preserved by the New York Constitution

(Article I, §6). He was required, nevertheless by the Grand’

Jury on a later date to answer the questions directed to

him and upon this mandate he acquired, and was expressly

given by the Grand Jury, an immunity co-extensive with the

operational effect of New. ¥ork law: (Penal Law, $2447;

Cf. People v. De Feo, 308 N. Y¥. 595).

Petitioner thereupon asserted that although the statute

regulating immunity in New York would protect him

against prosecution in this State based on his testimony,

answers elicited under compulsion of New York authority

would incriminate him under Federal law which makes

unlawful, among other things, the payment of money by an

employer to any representative of his employees in an -

industry affecting commerce (29 U. S. C., §186). He there- |

upon persisted in refusal to answer ‘the questions before

the Grand Jury and was held in.contempt by the Court of

General Sessions.

This is an Article 78 proceeding against the judge pre-

siding at the General Sessions at which petitioner was held

in contempt and against the District Attorney of New -

York County in the nature ‘of prohibition. The amended

answer pleads matters largely in the nature of defenses

of law; and a reply served by the petitioner contains an

affirmativé pleading that the ‘‘reality of petitioner’s dan-

yer of self-incrimination’’ under provisions of the Federal

_ Labor: Management Relations Act is based on the public

37

ra t ~ 7 e

announcement of the United States Attorney of the South-

ern District of New York of an intention ‘‘to cooperate with

the District Attorney of New York-County in the prosecu-

> tion of criminal cases in the field of the subject matter out

of which petitioner’s commitment argpe’’. This reply

further alleges that the responder” District Attorney.

a to cooperate with’? the United States Attorney.

‘sin the prosecution of such criminal cases in the courts of .

the United States’’.

' Since the court at Special Term. disposed of these’

issues summarily without trial and by a dismissal of the

petition which carried with it a dismissal of the reply as

- . being insufficient, we are required to accept as true upon

this appeal] the factual allegations of the reply in respect

of the cooperation between Federal and State prosecuting

officers in this.area of criminal responsibility occupied both

by Federal and State governments within their respective

statutory enactments. (Matter of Doherty v. McElligott,

- 9258 App. Div. 257, 258, 260).

We therefore are seanioed to begin the consideration .

of the question raised by the petitioner by accepting as a

demonstrated fact in the record before.us the actual co-

- operative policy. between the appropriate Federal and

State authorifies in prosecuting crimes arising from acts

~ made ¢riminal ‘both by Congress and by the New York

Legislature and eoncerning which the petitioner’s testi-

mony is sought to be compelled.

_ Tf the literal logic of some of the decided eases be car:

~ ried to the ultimate it would-seemingly be quite possible

for # State prosecuting authority to obtain a-direction to-

compel a witness sto incriminate himself upon granting a

State immunity and’ for 4his to be followed by ‘a Federal .

prosecution for. ‘the act-disclosed under compulsion; and,

indeed, with the compelled testimony euch in support of the

Federal charge. ‘

’~ But the full implications of such a concave view of con- |

stitutional privilege have not been faeed, and the cases -

which have called up discussion of the qyestion have not

required that this ultimate question -be Heit, In ‘the

°

” } aE

margin of decision the. view .so hieneahas been expressed

that the possibility of Federal prosecution upon the com-

pelled State disclosure has been remote or unlikely. © _

The-complex and delicately adjusted balance of sover-

eignties between. Federal and State governments presup- |

poses a related measure of responsibility for each. Each

‘is bound by identical constitutional restraints. The State

has its function under the United States Constitution as

well as the Federal government; and they have extremely . .

close and continuous relations with each other. We are not

here treating of sovereign strangers but of inseparable

sovereigns of the same fibre and substance.

The cases of different sovereign jurisdictions decided

under English law and sometimés cited in American cases

on this,subject, seem to us to have only illustrative or per-

‘ipheral relation to the -precise American constitutional

problem of what ought to happen when a State compels

criminal self-incrimination in an area of actual exposure

of the witness to prosecution under effective and operative

Federal criminal law. Examples of the often cited English

eases which hold the British court will not protect witnesses

against violation of. the law of ‘‘another countty’’ are

King of the Two Sicilies v. Willcox (7 State Trials, N. S.

1050, 1068; Queen v. Boyes (1 B. & S. 311, 330). (Cf. United

States v. ‘Murdock. 284 U: S. 141, 149). \.

The States of the United States certainly are not ‘Other

countries”’ in relation to the Federal government. Federal-

ism as‘we have dev eloped it does not exist in airtight com- -

. partments of sovereign -power; both general and \state

governments spread together. over the. same land and

embrace the same people.

The whole tenor of constitutional | - developed im

the courts of. the United States pena: a witness com- .

‘pelled by a State to testify against himself in a criminal

case also affected by Federal law, where the Federal prose-

cuting authorities have: knowledge ‘of the State proceed-|

ings, and especially where they cooperate in those proceed-

ings, will be protected fully by the judicial power of the |

39

United States against the adverse effects of such compul-

sion on subsequent Federal prosecution.

~The usual rule is, of course,.that the United States will

not deem itself bound not to prosecute because of unilateral

exercise of compulsion to self-incrimination by a State;

and this in part on the ground that the general government

will not be restrained in its policy by local action taken

by a State government. The principle is illustrated in

_ Feldman v. United States (522 U. S. 487) in which Mr.

Justice Frankfurter noted that ‘‘a State cannot by oper-

ating within its constitutional powers restrict the opera-

tions of the National Government within its. sphere’’ (p.

490), ‘See also Jack v. Kansas (199 U. 8. 372, 380). .

But in some of the decisions on the subject which pre-

ceded Feldman v..United States the court regarded the -

risk of Federal prosecution arising from State compulsion

as distant and remote; and this conception is in the over-

tone of the opinions as suggesting by mere remoteness a

* safeguard enough” for the case actually presented. In Jack

v. Kansas, for example, in dealing with an argument ‘in

. objection to a State immunity statute that it did not protect

against Federal prosecution in the same field, Mr. Justice -

Peckham agreed with the Supreme Court of Kansas that

the danger that Federal prosecution ‘‘would ever take

place’’ o unsubstantial and remote’ that it was

unnecessary, and of course not possible, for the State

to provide against it.

‘‘Wej(do not believe that in such case there is any real

danger ofa Federal prosecution, or that such ev idence

would be availed of by the government for such purpose’’

(p. 382). ‘In dealing with the inability of the State to pre-

vent prosecution of the same party for a Federal violation

the court interpolated the comment ‘‘if it could be imagined

that such prosecution ‘would be instituted in such circum-

stances’’ (p. 380):

In dealing with its own immunity statutes, the United.

> States has been able to give a simple and summary answer

to the assertion that Federal immunity does not safeguard

the witness against State prosecution based on his testi-

¢

40

mony. The supremacy of the ‘general government is

asserted. (United States v. Murdock, supra; Hale v. Henkel,

201 U. 8. 43). ‘The converse problem posed by the inability.

of a State to assure immunity against Federal prosecution

is at once more subtle and more difficult of adequate solution

‘ which would seem to hang’some measure of cooperation,

administrative or judicial, between the two governments.

The opinion in Feldman v. United States makes it clear

that the complete non-participation of Federal authorities |

in the private proceedings in the New York State court,

_which elicited the incriminating testimony was an impor-

‘tant element which led fo the permitted use of such testi-

ntany in the United States court.

Tha Federal agency ‘‘were to use a ‘State court as an

instrument for compelling disclosures for federal purposes”?

the policy ofthe courts of the United States would be to.

protect the witness ‘‘against such an evasive disregard of

the ‘privilege against self-incrimination”’ (p. 494). More- .

over, the court was of opimon that there was ‘no com-

plicity’’ between private parties Obtaining the incriminatory °

testimony: in the State court ‘‘and federal law-enforcing —

_ Officers’? (p. 492). ;

Although some of the yeateaints imposed by the first

eight amendments of the Constitution of the United States

on the Federal government have now an impact upon the

States by virtue of the reflected due process and equal

- protection requirements. of the Fourteenth Arhendment

(Board of Education v. Barnette (319 U.S. 624)), it is an

interesting commentary on constitutional development in

_ the United States that the prohibition on self-incrimination

in the Fifth Amendment is not by mirrored force of the

Fourteenth ‘Amendment held to be binding on the States.

(Adamson vy. California, 332 U.S. 46: Palko v. Connecticut,

302 U.S. 31; Twining v. New Jersey, 211 U.S. 78); although

the historically closely related protection against the effect

of a confession elicited by extra-judicial force is protected |

by the Fourteenth Amendment (Lee vy. . Mississippi, 332 U.S

742). ;

| 41

But although the Fourteenth Amendment also does not

operate to prevent, for example, unreasonable searches

and seizures by a State government. (Wolf v. Colorado, 338 |

U. S. 25) nevertheless the active participation of officers of

the United States in a state-initiated search ‘and seizure

will effectively bar the, reception of such evidence in the

Federal courts within the operative effect of the United

States Constitution (Byars v. United States, 273 U.S. 28).

‘(We cannot avoid the conclusion,’’-said. Mr. Justice

Sutherland, ‘‘that the participation of -the agent in the

search was under eolor of his federal office and that the

search in substance and effect was a joint operation of local

and federal officers’? (p. 33). The Federal government has’

the right to use evidence improperly seized by State officers

‘‘operating entirely on.theirgwn account,’’ hut the ‘‘rule is

otherwise when the Federal government * * * participates”’

in the wrongful seizure. rey .

It ix not difficult from this to analogize joint cooperation

of State and Federal authoritits,, or the jiarticipation of

Federal authorities by cooperation with State officers, in

elicitation of compulsory incriminating testimony so that

it will result in the pratection of the Fifth Atendment. in

_ a-subsequent criminal prosecution based on such testimony.

In Burdeau vy. McDowell (256 U. S. 465) which considered

the effect of both the Fourth and Fifth Amendments on

papers séized, the court Was.careful to note that ‘no official

of the Federal government had anything to do ‘with’? the

taking of the property in question’ (p. 474).

While the restraint of the Fifth Amendment does not

‘directly touch our judicial processes, we in New York have

our own constitutional provision in the same spirit and in

~- the same language (N. ¥.Const., Art. I, (6), and we are

hound as far as our strength permits to give it effect.

We are not able to assure protection against a Federal

prosecution using the self-incriminatory testimony we com-

pel against objection and for which we give a State immu-

nity, and the validity of our immunity statute does not

-. depend on our ability to secure the witness against Federal

prosecution (Dunham v. Ottinger, 243 N. Y. 423).

*.

“

42

But we cannot in fair compliance with our own Consti-

tution remain insensible to the actual dangers of non-

immunized compulsory inerimination in the United States

courts where we compel testimony in the ever-broadening

areas and in subjects affected by the criminal laws of both

governments. And while we can exercise no control over

Federal practice, We can exercise a judicial supervision over

State enforcement officers. iy |

A State prosecuting officer investigating an area in

whiéh the criminal laws of both the Federal and State gov-

ernments operate together, and requiring immunized testi-

moiiy in the development of his: case, could himself give

adequacy to State constitutional safeguards. by tendering.

cooperation with the appropriate United States attorney.

* If the cooperaiion were accepted by the Federal govern-

ment we have no doubt that within Feldman v. United

‘States, Byars v. United States and Burdeau v. McDowell

(supra), the courts of the United States would afford ade-

quate safeguards’ to the witness. Such safeguards would

strengthen the confidence with which a State might under-

take to compel self-incriminating testimony where duality

of criminal law might- be operative; and it would tend to

‘assure the adequacy of State constitutional guaranties

binding alike on State prosecutors and State courts.

_ When to seek such cooperation and when to proceed

without it would, in the nature of things, rest in the con-

science and judzment of the distriet attorney, who would

act in consonance with the spirit of the New York Consti-

tution. The solutiop, at bottom, lies in cooperation in good

faith between the two governments and their judicial and

prosecuting establishments, both of which live in quite the

same. tradition. os

Assuming, as we do in this ease, from the undisputed

allegation of the publié announcement of cooperation by the |

United States attorney with the district attorney, and the

undisputed allegation of intention by the district attorney

to cooperate with the United States attorney, that the fact

of cooperation is true and that the instant inquiry is

43

embraced within it, adequate protection under the Federal”

decisions would have inured to the petitioner.

The United States courts would not, of course, accept

these pteadings as conclusive; but if Federal judicial

inquiry disclosed the facts to be as they are here pleaded,

the immunity that petitioner would gain under New York

law would seem to extend to the residual risk of Federal

prosecution. On the other hand, if it isnot shown that the

alleged cooperation and intent to. cooperate did in fact exist,

it would not appear that there is a real and substantial

danger that the testimony compelled by the state will -be

used in a subsequent Federal prosecution.

The order should be affirmed without costs.

All concur. a

Decision Amending Remittitur.

COURT OF APPEALS.

April 4, 1957.

Motion to amend remittitur granted. Return of remit-

titur requested and, when returned, it will be amended by

~ adding thereto the following:

Upon the appeal herein there were presented and ‘nec-

essarily passed upon by the Court of Appeals questions

under the Constitution of the United States, as follows:

“1. In the course of an investigation by the Third April

Grand Jury’of New York County under Penal Law, See-

tions 380, 580 and 850 dealing with bribery of labor union

representatives, conspiracy and extortion, appellant, an

employer engaged in interstate commerce, declined to

answer questions directed to the ascertainment of whether

he had paid money to certain named officials of a labor

union, Local.239, International Brotherhood of Teamsters,

on the ground that the answers would tend to ineriminate

44 °

him, citing particularly his peril under a Federal statute,

Taft-Hartley Act, Section 302, 29 U. S. C. 186 regulating

under penal sanction, payments to union representatives;

and appellant was thereupon convicted of a contempt of

the Court of General Sessions of said County against his

contention that since the source of the peril of prosecution

was Federal, he was privileged to decline to answer by vir-

tue of the Fifth Amendment to the United States Constitu-

tion which binds the State Court Grand Jury through the

Supremacy clause Article VI, Clause 2 as well as through

the Privileges and Immunities Clause of the Fourteenth

Amendment. This Court decided: the stated contention

adversely to appellant.

2. In the course of an investigation by the Third April

Grand Jury of New York County proceeding under Penal

Law, Sections 380, 580 and 850 dealing with bribery of labor

union representatives, conspiracy and extortion, appellant,

an employer engaged in interstate commerce, declined ‘to

answer questions directed.to the ascertainment of whether

* he had paid money’ to-certain named ‘officials of a labor

union, Local 239, International Brotherhood of Teamsters;

‘and appellant was thereupon convicted of a contempt of

the Court, of General Sessions of said County against his

‘eontention that Taft-Hartley Act, Section 302, 29 U. S. C.

186, regulating payments by employers td labor union rep-

sentatives, by preempting the field of regulations of such

payments had rendered Penal Law Sections 380, 580, and

850, insofar as applied to industries affecting Commerce,

repugnant to the Commerce (Artiele 1, Section 8) and

Supremacy (Article VI Clause 2) Clauses of the United

States Constitution and hence deprived the State Grand

Jury of jurisdiction to make the stated inquiries. . This

Court decided the sfated contention .adversely to

appellant.’’ 3

45

APPENDIX B.-

' Statutes Involved.

A. Federal Statutes.

1. Labor Management Relations ‘Act 194% (Taft-Hartley

Act) See. 302. 29 U.S. C. §186; 61 Stat. §157.

Restrictions oN PayMents To Empiover REPRESENTATIVES

Sec. 302. (a) It shall be unlawful for any employer to

pay or deliver, or to agree to pay or deliver, any money

or other thing of value-to any representative of any of his

employees who are employed -in an industry: affecting

commerce. |

(b) It shall he unlawful for any representative of any

‘employees who are employed in an industry affecting com-

merce ‘to receive or accept, or to agree to receive or accept,

from the employer of such employees any money or other

thing of value.

(ec) The provisions ef this section shall not he appli-

cable (1) with respect to any money or other thing of

value pavable by an employer to. any representative who

is an-employee or former employee of such employer, as

compensation for,.or by reason of, his services as an

employee of such emplover: (2) with respect to the pay-

ment or delivery of any money or other thing of value in

satisfaction of a judgment of any court-or a decision or

award of an arbitrator or impartial. chairman or in com-

promise, adjustment, settlement or release of any claim,

complaint, grievance, or dispute in the absence of fraud or

duress; (3) with respect to the sale or purchase of an article

or commodity at the prevailing market price in the regular

course of business; (4) with respect to money dedutted

from the wages of employees in payment of membership

dues in a labor organization: Provided, That the employer

has received from’ each employee, on whose‘ account such

_deductions are made, 4 written assignment which shall not

46

be irrevocablé for a period of more than one year, or beyond

the termination date of the applicable collective agreement,

whichever occurs sooner; or (5) with respect to money or

other thing. of value paid to a trust fund established by

such representative, for the sole and exclusive benefit of the

employees of such employer, and their families and depend-

ents (or of such employees, families, and dependents jointly

with the employees of other employers making similar pay-

ments, and their families and dependents) : Provided, That

> (A) such payments are held in trust for the purpose of

paying, either from prinéipal or income or both, for the

benefit of employees, their families and dependents, for

medical or hospital care, pensions on retirement or death

of employees, competisation for injuries or illness resulting

from occupational activity or insurance to provide any of

the foregoing, or unemployment benefits or-life insurance,

disability and sickness insurance, or accident insurance;

(B) the detailed basis on which such payments are to be

made is specified in a written agreement with the employer,

and employees and employers are equally represented in’

the administration of such fund, together with such neutral

persons as the representatives of fhe employers and the

representatives-of the employees may agree upon and in

-fhe event the employer and employee’ groups deadlock on

the administration of such fund and there are no neutral

persons empowered to break such deadlock, such agreement »

provides that the two ¢roups shall agree on an impartial

umpire to decide suéh dispute, or in the event of their

failure to agree within a reasonable length of time, an

impartial umpire to decide such-dispute shall, on petition

of either group, be appointed by the. district court of the

‘United States for the district Where the trust fund has its

principal .office, and shall aly contain provisions for an

annual audit of the trust fund, a statement of the results

“of which shall be available for inspection by interested

persons at the principal office of the trust fund and at such

other place as may be designated in. such written agree-

ment; and ((‘) such payments as are inténded to be used

47 hoon

for the purpose of providing pensions or annuities for

employees are made to a-separate trust which provides

that the funds held therein cannot be used for any purpose

other than paying such pensions or annuities.

(d) Any person who willfully violates any of the pro-

Cisions of this section shall, upon conviction thereof, be

guilty of a misdemeanor and be subject to a fine of not more

than $10,000 or to imprisonment for not more than one year,

or both.

(e)} The ‘istrict courts of the United States and the

United States coarts’ of the Territories and possessions

shall have jurisdiction, far cause shown, and subject to

the provisions of section 17 (relating to notice to opposite

party) of the Act entitled “An Act to supplement existing

‘laws against unlawful restraints and monopolies, and for

other purposes’’, approved October 15, 1914, as amended

(U.S. €., title 28, see. 381), to restrain violations of this

section, without regard to the provisions of sections 6 and

20 of such Act of October 15, 1914, as amended (U.S. C.,

title 15, sec. 17, and title 29, see, 52)s and the provisions of

the Act entitled “An Act to amend the Judicial Code and

to define and limit the jurisdiction of courts sitting in

equity, and for other purposes”, approved Mareh-23, 1932

(US. €., tithe 29, sees. 101-115). :

(f) This section shall not apply te any contract in force

- on the date of enactment of this Net. until the expiration

of such contract, or until July t, 1948, whichever first occurs.

(g) Compliance with the restrictions contained in. sub-

section (ec) (5) OB) uporeontributions to trust funds, other-

wise lawful, shall not be applicable to contributions to such

trust. funds established by collective agreement prior to

Jannary 1, 1946, ner shall subsection (e) 65),04) be con-

strued as prohibiting contributions te. such trust funds if

prior to January 1, 1947, such funds contained provisions

for pooled vacation benefits. :

48 )

2. Constitution, Art. I, Section 8, Cl. 3.

‘*The Congress shall have Power .. .

To regulate Commerce with foreign Nationa: and . °

among the several States, and with the Indian

- Tribes;

3. Constitution, Art. VI, Cl. 2.

‘*This Constitution ... shall be the supreme Law

of the Land; and the Judges in every State shall be

hound thereby, any Thing in the Constitution or Laws

of any State to the contrary notwithstanding.”’

4. Constitution, Amendment V.

‘‘No person ... shall be compelled in any crimi- .

nal case to be a witness against himself, . . .”’

5. Constitution, Amendment XIV, Section 1.

. » No State shall make or-enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; ... ”

B. New York State Statutes.

6. New York Penal Law, Section 380,

“1. A person who gives or offers to give any

money, property or other thing of value to any duly:

appointed representative of a labor organization

with the intent to intinence him in respect to any of

his acts, decisions? or other duties as such represen-

tative, or to induce him to prevent or cause a strike

by the employees of any person or corporation, is

guilty of a misdemeanor.

2. Any duly appointed representative of a Jabor

organization who solicits or accepts or agrees to

accept from any person any money, property or other

thing of value upon any agreement or understanding,

express or implied, that he shall be influenced in

respect to any of his acts, decisions, or other duties

49

‘ as such representative, or upon any agreement or

understanding, express or implied, that he shall

refrain from causing or shall prevent a strike or work

stoppage or any form of injury to any business, is

guilty of a misdemeanor.’’®

3. (Grant of immunity.) __

7. New York Penal Law, Section 850.

Extortion is the obtaining of property from another,

or obtaining the property of a corporation from an

officer, agent or employee thereof, with his consent,

induced by a wrongful use of force or fear, or under

color of official right.

8. New York Penal Law, Section 580,

‘‘If two or more persons conspire:

1. To commit a crime ; or

, aero

Fach of them is guilty of a misdemeanor.”’

* An amendment of this subdivision effective September 1, 1956

extended to coverage to welfare fund trustees or representatives.

Sl

APPENDIX C.

Order Appealed from (Remittitur)

with Amending Order.

COURT OF APPEALS |

STATE oF New York, ss.

Peas in the Court of ae held at Court of Appeals

Hall, in the City of Albany, on the 8th day of March in the

year of our Lord one thousand nine hundred and fifty-

seven, before the Judges of said Court.

WITNESS, ;

The Hon. ALBERT Conway,

Chief Judge, Presiding.

Raymonp J. Caxnon, |

. Clerk.

Remittitur March 8, 1957.

In THE MaTTER

of

The Application of Minton Kxapp,

. Appellant,

for an Order &c.,

vs.

Mitcuett, DPD. Scuweitzer, Judge of

the Court of General Sessions, &

ano., +. Ke., ;

Respondents.

Bev Rewemperto, That on the T2th day of December

in the vear of our Lord one thousand nine hundred and

52

fifty-six, Milton Knapp, the appellant in this cause, came

here unto the Court of Appeals, by William J. Keating, and

Butler, Bennett, Fitzpatrick & DeSio, his attorneys, and

filed in the said Court a Notice of Appeal and return thereto

from the order. of the Appellate Division of the Supreme

Court in and for the First Judicitl Department. And

Mitchell D. Schweitzer, Judge of the Court of General

Sessions, & ano., &c., the respondents in said cause, after-

wards appeared in- said Court of Appeals by Frank S:

Hogan, District Attorney.

Which said Notice of: Appeal and the return thereto,

fired as aforesaid, are hereunto annexed.

-Wuerevpon, The said Court of Appeals having heard

this cause argued by Mr. Bernard H. Fitzpatrick, of counsel

for the appellant and by Mr. Albert P. Loening, Jr., of

counsel for the respondents, and after due deliberation had

.thereon, did order and adjudge that the order of the Appel-

late Division of the Supreme Court appealed from herein

be and the same hereby is affirmed..

And it was also further ordered, that the records afore-

said, and the proceedings in this Court, be remitted to the

said Supreme Court, there to be proceeded upon accord-

ing to law.

THEREFORE, it is mite that the said order be

; affirmed, as aforesaid.

And hereupon, as well the Notice of Appeal and return

thereto aforesaid as the judgment of the Court of Appeals:

aforesaid, by it given in the premises, are by the said Court

of Appéals remitted into the Supreme Ceurt of the State of

New York before the Justices thereof, according to the form |

of the statute in such case made and provided, to be

enforced according te law, and which record now remains

in the said Supreme Court, before the Justices thereof, &c.

Raymonp J. CANNON

Clerk of the Court of Appeals

of the State of New York:

53

Covrt or Apreats, CLERK’s OFFICE, ) -

Aly, March 8, 1957.

I Heresy Certiry, that the preceding record contains a

correct transcript of the proceedings in said cause in the

Court of Appeals, with the papers Stecniened filed therein,

rnecatte thereto.

Shanes J. Cannon,

Clerk.

[Seau]

54

State or New York

¥ IN

‘

_ COURT OF APPEALS fi

At a Court of Appeals for the State of New’

York, held at Court of Appeals Hall in the

City of Albany on ie fourth day of April

A. D,.1957, :

PRESENT,

Hon. Albert Conway,

Chief Jude presiding.

Mo. No. 154.

dD

In THE Matfrer.

» 2 '

of

The Apne of Mitton Kwarr,

Appellant,

for a Order &e.,

vs.

Mitcnet, D. Scuwertzer, Judge of |.

the Court of General Sessions,. &

ano., &¢.,

Respondents.

po.

A motion to amend the remittitur in the above cause

having been heretofore made upon the part of the appellant

herein and papers having been submitted thereon and due

; deliberation having been thereupon had, it is

e

55

Orverep, that the said motion be and the same hereby

is granted. Return of remittitur requested and, when

returned, it will he amended by adding thereto the follow-

ing’ .

Upon the appeal herein there were presented and

necessarily passed upon by the Court of Appeals ques-

tions under the Constitution of the United ‘States, as

follows: ‘‘1. In the course of an investigation by the

Third: April Grand Jury of New York County under

Penal Law, Sections 380, 580 and 850. dealing with

bribery of libor union representatives, conspiracy and

extortion, appellant, an employer, engaged in interstate

commerce, declined to answer questions directed to the

~ ascertainment of whether he had paid money to certain

¢ named officials of a labor union, Local 239, Ifterna-

tional Brotherhood of Teamsters, on the ground that

the answers would tend to incriminate him, citing par-

ticularly his peril under a'Federal statute, Taft-Alartley

Act, Section 302, 20 USC 186 requlating under penal

-sanction, payments to union representatives; cand

appellant was thereupon convicted of a’contempt of

the Court of General Sessions of said County agairist

his contention that since thé source of the peril of

prosecution was Federal, he Was privileged to decline

to answer by virfne of the Fifth Amendment to the

United States Constitution which binds the State Court

Grand Jury through the Supremacy clause Article VI, /

Clause 2 as well as through the Privileges and Immuni-

ties Clause of the Fourteenth Amendment. This Court

decided tha stated contention adversely to appellant:

2. In the eourse of an investigation by the Third ‘April

‘Grand Jaary of New York County proceeding under

Penal Law, Sections 380, 580,and & 390 dealing with brib-

ery of labor union representative s, conspiracy and

extortion, appellant, an employer engaged in interstate

commerce, declined to answer questions dire¢ted to the

ascertainment of whether he had paidymoney to certain

56 | ae

named officials of a labor union, Local 239, International

Brotherhood of Teamsters; and appellant was there-

‘on convieted.of a contempt of the Court of General

Sessions of said County against his contention that

Taft-Hartléy Act, Section 302, 29 U SC 186, regulating

payments by employers to labor union representatives,

-by preempting the field of regulations of such payments

had rendered Penal Law Sections 380, 580 and 850,

insofar as applied to industries affecting Commerce,

repugnant to the Commerce (Article 1 Secttgn’8) and

Supremacy, ( Article VI Clause 2).Clauses of the United

States Constitution and henee deprived the State Grand

Jury of jurisdiction to‘make the stated inquiries. This

( ‘ourt decided the stated contention adv ‘ersely to appel-

lant.’

Axp the Supreme Court, New York County, is hereby

requested to direct its Clerk to return said remittitur to

this onrt for ameiehenent accordingly.

-A copy ss

bom “Gearon KIMBALL

Deputy Clerk

(Sear)

(7797)

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.

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