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)
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