Reply Brief — Spevack v. Klein

SUPREME COURT OF THE UNITED STATES

No. 62

*

SAMUEL SPEVACK, Petitioner, a

V.

» SOLOMON A. KLEIN, Respondent

ON WRIT OF CERTIORARI TO THE COUBT OF APPEALS OF THE STATE

OF NEW YORE

7 = ; *

Lawanxcn J. Larro,

Wuisum H. Dempssy, Ja,

' Mur J. Nr

\ 734 Fifteenth Street, N. W.

Washington, D. O. 20005,

Attorneys for Petitioner.

1

»*

| | TABLE OF TAT ys

Cases: 2% . jie

1 In re, 366 0b. S. 82 na hate Be.

Blumenthal v. F. C. C., 318 F. 2d 276 (D.C. Cir.),

cert. denied, 373 US. . 2 . . 6, 10

Board of Public Education v. Intille, 401 Pa. 1, 8

163 A. 2d 420, cert. denied, 364 U.S. WMO... cs as 7

— Borrow v. F. C. C., 285 F. 24 666, cert. denied, 364

Xl ee es eee ed Nae 6

N.. S. 892. . . . ins r Ne nga ese oye a ns 12

Bod v. United States, W Ee

Bram v. United States, 168 U.S. 532, 5478. 3

Cammer v. United States, 350 U.S. 399 13

Cohen v. Hurley, 7 N.Y. 2d 488, 166 N.E. 2d 672,

fd, 366 US. 117. N 12

Cortese v. United 8 es, 337 F.2d 699 (9th Cir.), 4

cert. denied, S81 U.. 9888

Crawford v. United States, 219 F.2d 207 (5th

Ge Fa ie Sac lee eee te Va Cee 5

Garrity v. New Jersey, No. 13, O. T. 19668. 3

Grae, In re, 282 N.Y. 428, 435, 26 N. E. 2d 963,

C Sai aes aa a eos A 12

Griffin v. California, 380 U.S, 609.............. 2,9

Grunewald v. United States, 353 U.S. 311. 7,9

Holland, In re, 377 Til. 346, 36 N. E. 2d 543...... 13

Kimm v. Rosenberg, 363 U.S. 4055. 10

Konigsberg v. State Bar, 353 U.S. 252, 366 U.S.

iis gi voc en ch a Cada ok ee 9

Malloy v. Hogan, 378 U.S. 1, . 2

Martin v. United States, 256 F. 2d 345 (5th Cir.),

cert, denied, 358 U.S. 911ũ1t . 5

McClure v. Boles, 233 F.Supp. 928 (N. D. W. Va.). 5

Miranda v. Arizona, B84 US. 46. 335: Bikes h 3

Noto v. United States, 76 S. Ct. 255, 100 L. Ed.

1518 (Memorandum of Harlan, J.); 351 U. 8.

JJC ²˙ ) eer eT Aer een

Sherbert v. Verner, 374 U.S. 399 ö;

Slochower v. Board of Education, 350 U.S. 551.

9662-8

202

SPUR

err.

. — ST. a

SSS RES eT IS

7

—

+

Le

:

>

*

E A

va i To

rh

9 700

e aes, 13 0. d 163

=i}: 3 BMA At MIP

469 -- ee

see

noe gh eee ag Ral

Drinker, Legal,

oe of I —

og the Privilege

„24 U., Chi. L. Rev.

ew Nel 73 Yale L. J. 783

e ͤ 0a ee ee

* WS ee rae ta ure

<3 1

‘

Sop ee ee oe * 2 1

iin wh oe we _ — v

# ay 8 „ Fs ‘

pee Se

.

*

neee e are ol. free K

n BS pac aecee os in

r aT ban n

* te AS Wann 7

8 . ; 5 af 4 r * 8 ; 3 11 rit $

snot ehen

bret Alte

e ‘jade: en e tnd

melt

: daw F e a. delle):

coal v Nr Nav Piu

Saeed off eee e

U Aer

> yah yet

:

ae 7?

— a} j

9 n

. Sy tee) *

* ne

*

ee

a

4 Re 17 0

e 4 . 41.

N tee - JF te Fr

nnr 6G W 1

en eee

Sa N

eln SHOT dockt

at Be

2

py od (1884). 12.13

13

8

13

1

raha

aie"

*

0

e

cane

1

. Watte 1

. m TEE: n n

> SUPREME COURT, OF THE. mien sages

. OCTOBER TERM, 1s

* 5 tnt N.

. hapa)

No. 62 n

1

„ sabe

” SAMUEL SPEVACK,, Petitioner, yk

0, 1 sm

SOLOMON A. KLEIN, Kes TAA

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF. THE STATE

OF NEW YORK

REPLY BRIEF FOR PETITIONER...

The brief of an amicus curiae, the Association of the Bar

of the City of New York, correctly states that our initial

diseussion of the reach of the Fifth Amendment does not

consider the logical extensions of our position. We did

not undertake such a discussion primarily because the

TTV

under the well settled construction of the Fifth Amend-

ment. However, amicus curiae’s contention that reversal

of the judgment below would establish a principle that, |

carried to its logical extreme, would. gravely impair the

operations of the government is incorrect. To demon- .

strate this, it is necessary to sketch a rather fully devel-

oped theory of the Fifth Amendment in many of its ramifi-

ae een Ann SPO: e eee “Uy: this

case.

We see epee Gill Ge eceasd Geil that dicherment

should be regarded as incrimination within the meaning

of the Fifth Amendment’s prohibitions, or, more precisely,

that disbarment is a sanction indistinguishable from those

traditionally imposed in criminal proceedings. See Com-

ment, The Fifth Amendment and Quasi-Criminal Sanc-

tions, 35 Tulane L. Rev. 400 (1961). If we are correct

in that contention then clearly the state may not impose

upon an attorney an election between disbarment and

relinquishmeént of his constitutional privilege, since that

action would amount to an adjudication of criminal guilt

solely upon the basis of invocation of the privilege. Sec-

ond; We Argued that, even if disbarment is not incrimina- ~

tion for purposes of the Fifth Amendment, it is nonethe-

less a penalty within the meaning of Griffin v. California,

380 U.S. 609, and no such penalty may be imposed by

the courts fer refusal to disclose information which is

protected. by. the privilege. Griffin v. California, supra;

Malloy v. Hegan, 378 U.S. 1, 8. Finally, we argued that

the plain language of the Fifth Amendment prohibits

the government, state and federal, from making a threat

that deprives one of the opportunity to make a decision,

in thé ‘unfettered exercise of his own will,” Malloy v.

Hogan} 378: U.S. 1, 8, whether. or not to respond to a

governmental demand for. information that is concededly

protected by the privilege. Were it otherwise, he would

unquestionably be compelled to testify against himself,

under decisions of this Court which establish that the

impermissible means of compulsion are not limited to

physical brutality or the threat of imposition of those

3

sanctions traditionally associated with ‘criminal. proceed-

ings. See Miranda v. —

United States, 168 U.S. 532, 647-8. 9

Wo believe — — 3

the judgment below. Still, we think it not inappropriate for

the amicus to seek an elaboration of our position as to the

scope of the privilege in its application to situations sub-

stantially different from the case at bar. Therefore, with the

caveat that the validity of our position in this case does not

depend upon the validity of our Position regarding all

the hypotheticals raised by the amicus, we outline in this

reply brief our view as to the general classes of permis-

sible and impermissible governmental action under the

Fifth Amendment. *

The inquiry here, of course, focuses not upon the use

by the state of incriminatory information disclosed as a

result of impermissible governmental conduct. But see

Garrity v. New Jersey, No. 13, O. T. 1966. Rather, we

are concerned here with what conduct the Fifth Amend-

ment makes impermissible, that is, with what threats or

promises the courts will prevent from being carried out

if, as here, the person subjected to that conduct. does not

submit, but refuses to relinquish his privilege.

First, there is an area of governmental conduct. 80

obviously not proscribed by the Fifth Amendment that

it would hardly be worthy of mention were it not for

the suggestion of the amicus curiae that its permissibility

is questioned as a logical extension of our argument.

Where an intrinsic and essential element of à person's

function, whatever it may be, involves the furnishing: of

information, his refusal to do so, whether; benause of his

reliance upon the, privilege or otherwise, may properly

eubjeet him to being relieved e

Thus, a trustee who refuses to perform his du

7 a

— —

a

a legut opinion to that ageney—in each instance in re-

lianse upon the privilege against self-incrimination—may

be removed from offioe wen though he may not: be sade

to disclose incriminating information.

A Similar case would be that of a government e

who refuses to answer questions by his superior relating

to the performance of his duties. Thus, we do not con-

tend that a court clerk who refuses to answer a question

by the cburt as to the whereabouts of court records in

his eustody or a national bank examiner who refuses to

answer questions by the Comptroller of the Currency as

to his procedures in preparing examination reports is

insulated from discharge because the refusal is based

upon the privilege. Dismissal in these cases is based

not upon pleading the privilege against self-inerimination

but rather upon the inability or unwillingness of the

person involved to perform the very functions for’ which

he has been employed. f

Second, there is a class of instances in which a atate

may have an adequate basis for taking action against

a person i. e., imposing a sanction or withholding a bene-

fit—independent of a refusal by that person to relinquish

his privilege against self-incrimination. In these in-

stanges, the state is not preeluded from taking that action

merely because it has suggested to the person that his

relinquishment of the. privilege and cooperation with the

state maꝝ dissuade it from doing so. Thus, a suggestion

by a prosecuting, attorney that he will move to dismiss

one or more counts of a multi-eount indictment or reduce

a charge in the event that an indicated defendant enters

a. ghilty ple does not necessarily make such a plea the

produet of: compalsion, though in a particular case eir-

lead to that conclusion. See; o.g., Cortes

weed Stator; 287 . 24 2 1 ‘cert, ‘denied,

dering a fier fiw eo

381 U.S. 953; Martin v. United States, 256 F. 2d 345 (5th

Cir:), ‘cert. denied, 358 U.S. 921; Craoford v. United

States, 219 F. 2d 207 (5th Cir 1965). And if the defend

ant does not plead guilty the state is not precluded: from

prosecuting on all counts of such an indictment. or on the

original charge merely because the prosecuting attorney

has suggested that a plea of guilty might influence: prosee-

utorial discretion. But 1 rr — 233. F. *

928 (N. D. W. Va.). 2 gts

‘Similarly, if counsel for a jeaieial: ineruiry nai idee

of misfeasance that will support the disbarment of an

attorney, he should be able to advise the attorney that,

if he gives testimony concerning matters of legitimate

interest to the court, his cooperation will be taken into

account in determining the severity of the ‘sanction that

may be imposed upon him. That factor might well influ-

ence the decision to relinquish the privilege.” But, stand-

ing alone, it would not establish ¢compulsion’’ within the

meaning of the Fifth Amendment, and if the attorney

refuses to testify, the court may proceed to disbar him

on the basis of the independent wages ta its: pospession.

Included within this class of cases i is a subeategory in

which a governmental refusal to take certain: action: (e. g.,

the grant of a license or the lease of government prop-

erty) may properly be based upon the absenes of suffi-

ient information rather than upon the ‘possession of

mt. evidence. Furthermore, in some carefully cir-

cumscribed instances, it may be appropriate to impose

the obligation to furnish that: information upon an app

cant for à license or gave tal benefit. “ Thus, an

applicant for admission to the bar may be required 4

demonstrate that he is a person of good character, and,

his rerusel to answer certain relevunt quéstiins mah make

it difficult for him to make the necessary showing. f hG

c

6 *

fails to do so, his application may properly be denied,

not because he has pleaded the privilege against self-

incrimination but because his good character has not been

established. As we show below, however, he may not

be denied the opportunity to make the necessary showing

simply: because he has invoked the privilege against self-

ineximinadion:..; ... |

Another example of this kind of case is furnished by

Blumenthal v. F.C.C., 318 F. 2d 276 (D.C. Cir.), cert.

denied, 373 U.S. 951, which, for reasons given below, we

believe to have been incorrectly decided. In that case,

the Court of Appeals upheld the Federal Communications

Commission, which had denied a radio operator’s license

to persons who, had pleaded the privilege against self-

inerimination. ne court had held, in the earlier

ease of Borrow v. F.C.C., 285 F. 2d 666, cert. denied, 364

US. 892, that the Commission was authorized, by virtue

of its power to. prescribe the qualifications of station

operators, to inquire into whether applicants had. been

members of the Communist Party or of groups which

advocate the overthrow of the government. In response

to such inquiries the petitioners in the Blumenthal case

‘invoked the privilege against self-incrimination. The

court held that while the free exercise of the privilege

undoubtedly had been impaired by the Commission’s

action, the Commission could nonetheless validly refuse

the license because it did not have sufficient information

about the qualifications « of the applicants. to warrant a

es

t.“

A 2h

a 2940 deseription of ‘governmental, — that. i is per-

—.—. althongh it takes place in aer that inelngles

1755 1832

8 igemont

each nis si Ae ard ea

Tia *

“ni 12 * a D

.

7

the exercise of the privilege, helps to delineate the govern-

mental conduct that constitutes impermissible 3

under the Fifth Amendment:

First, there can be little doubt that no governmental

action may be imposed for the purpose of punish

individual for his invocation of the privilege, in Tight of

the standard of Malloy and Griffin that one’s silence in

reliance upon the Fifth Amendment may not be penalized.

If a sanction is imposed for the purpose of penalizing an

individual for his reliance upon the privilege, then, with-

out regard to the character of that sanction, it is néces-

sarily punitive in nature and « impermissible. Cf. Noto

v. United States, 76 S. Ct. 255, 100 L. Ed. 1518 (Memo-

indem of Harlan, J.); Noto v. United States, 3 ve US.

902.

Second, the government may not impose sanctions or

withhold benefits solely because of one’s invocation of the

privilege, whatever may be its purpose in doing 80.

Where the government’s action is based not upon inde-

pendent grounds but only upon the invocation of the

privilege, that action necessarily involves drawing adverse

inferences from such invocation, in violation of this

Court’s decisions in Grunewald v. United States, 353 US.

391, and Slochower v. Board of Education, 350 U.S. 551.

See also Board of Public Education v. Intille, 401 ee. 1,

163 A. 2d 420, cert. denied, 364 U.S. 910. aR RES

Third, while a state may prescribe non-arbitrary | con-

ditions for the receipt of some governmental benefit, or

for grant of a license to carry on an occupation that is

subject to regulation; it may not, by legislative fiat, de-

clare: that an obligation to cooperate with a regulatory

authority by answering all questions that may be asked

is a necessary part of thut occupation: ere 2 dh ‘it

is not. The power to fegulate the dispenses

— ER EEN

8 3

fits does not include’ the power ‘arbitrarily to require

relinquishmentof the privilege against ‘self-incrimination,

any more than of other rights protected by the Consti-

tution. See, ¢.g., Sherbert v. Verner, 374 U.S. 398; Stein-

berg v. United States, 148 Ct. CI. 1, 163 F. Supp. 590;

ee esata The New erento,’ 73 Yale L. J. *

ah

mal sn and re een abies e abe tails

tions upon the government's astion in Those cases in which

it may act or refuse to act’ on the basis of one’s failure

to meet à burden of proof. Speiser v. Randall, 357 US.

513. Since it is obvious that government action of this

type does tend to inhibit the exercise of the privilege

against self-inorimination, and also that there may be

strong temptation to.use the “no information” rationale

as a cloak for drawing impermissible inferences of guilt,

bad moral character, or other unfitness from the invoca-

tion of the privilege, this:class of cases should be rigidly

circumscribed. Thus; there must be adequate justification

for placing the burden of proof upon the individual rather

«han the government. In this connection, the difference

between the grant of an initial license and the imposition

of a heavy sanction—as in the case of revoking a license

long heid— might be relevant, as might the practical diffi-

culties faced by the nnen in securing. ee

information. bustin 4

ven in those Nan Wa in which the burden

af proof may be.imposed upon an applicant for u license

or other benefit, the government may not prescribe: as a

ot law that one’s burden ean be satisfied only if

he Sines aera b his own sworn testimony, in

ce. of assertion. of. the ‘privilege... This would amount

adoption of an irrebuttable presumption that the

— ‘would be adverse und of sufficient

weight to overcomé:any- favorable: evidence that mighit

be presented. As we have stated, no such presumption

of: inference may be drawn from the “invocation: of the

privilege against self · inorimination. See Griffin v. Cali-

fornia, supra; Grunewald v. United States, supra. Indeed,

in Boyd v. United States, 116 U.S. 616, me. Gourt meld

unconstitutional under the Fourth and Fifth Amendments

a federal statute which created, in suits, for forfeitare .

of property, an irrebuttable. presumptian that documents

which were not produced would prove any allegations

that the government contended they would prove...

We recognize, of course, that the existence uf certain

qualifications may be easier to establish than other in

circumstances where the applicant's own testimony is

unavailable. For example, good ‘character: will frequently

grounds. See Konigsberg v. State Bar, 353 U.S. 282, 366

U.S. 36, and In re Anastaplo, 366 U.S. 82, in which just

such showings were made. It is much harder to show

that one has never been a member of a subverstve organi-

—ͤͤ e eee gb

enn 4 CHEK

1 the sound Koigeer cae k. U8 be- Court ba at

while its first decision precluded the state from

e if" bed eee trom eee

state could constitutionally deny petitioner admission to Mie Ber for

itv 5g Des l

792 th a

2 — —

— ere ee

10

the same in both cases, however, in that the opportunity

to meet one’s burden of proof may not be denied merely

because of his reliance upon the privilege. It is in this

respect the failure to provide that opportunity—that the

decision in Blumenthal was in error. An agency may not

refuse a hearing by asserting that the required showing

may be made only by sworn testimony of the applicant,

in the face of the applicant’s assertion of the privilege

against self-incrimination.* That position is consistent

only with the conclusion that a license is to be denied not

because of insufficient information but merely because of

assertion of the privilege.

he discussion above relates, of course, to the amicus

curiae’s concern: about the logical extensions of our posi-

tion as to the scope of the Fifth Amendment, and the bulk

of. the foregoing discussion is quite distant from the facts

of this ease. Thus, clearly we are not here concerned

with the class of cases which provide the most difficult

problems in this area—those cases in which the govern-

ment may base its action upon failure of fn individual

to. meet. a burden of proof. Petitioner here met his

burden of proof of qualification for admission to the

bar over 40 years ago, and he has practiced under his

the Attorney General to

persons

11

tense sinèe that time. Even assuming that the state

could constitutionally adopt a procedure by Which at-

torneys of unblemished standing could be called before

a special inquiry from time to time and given the burden

of re-establishing their good character, either for no rea-

son at all or for the reason that an active contingent fee

practice is thought to raise the likelihood of ‘unethical-

behavior, see Brief for Respondent, p. 5, no ons has cited

any statute or regulation which imposed any burden of

proof upon petitioner in these proceedings. In the: Judi-

cial Inquiry, while the record indicates that the practice

of that body is to call very active attorneys before it

merely on the chance that some unethical practices might

be found (R. 37), no charges were made against peti-

tioner and he was not advised that he must prove or dis-

prove anything in particular. And, in the disciplinary

proceeding which resulted in the order of disbarment

here at issue, the referee’s report clearly establishes chat

the burden of proof as to all charges rested upon respond-

ent Klein (the petitioner in that proceeding) m not ere

petitioner (R. 62; 78).

Neither is this a case in which the state’s action—dis-

barment—was based upon independent evidence of mis-

conduct which was called to petitioner’s attention in an

effort to influence him to relinquish his privilege. The

state did, of course, threaten disbarment in an effort to

induce petitioner to relinquish his privilege, but the basis

for that threat was not an independent ground for disci-

plinary action but rather the refusal to relinquish the

privilege, itself. And, finally, we are not here faced with

a situation in which one’s decision to invoke the’ privilege

makes him incapable of performing the duties of his

employment, as in the frequently cited case’ of the’ trustee

who refuses to account. To be sure, the Appellate Divi-

sion in this case held that petitioner’s reliance upon *his

12

“ahedhite “right to invoks his | vonstitutional .privilége

ageihst self-inorimination” amounted to a failure to ‘fulfill

lin Fiwherent dutv 2 40 divulge all pertinent information

ere te show his character and fitness to remdin e ‘

oar'npening briefe Dh 26⸗0, Ahat Amherent duty“ aer

akdertéd torte inberent dnly after the Judicial’ Inquiry

R

— Wecunsel to. devélop — avi:

Burley; 5 „ Thds, the Inquiry developed Cohen v.

NX. 20 488, 10 NR. 2d 872, aff'd, 366 U.S. 117,

an G test enge, und tut case negated: the long recognized

Vork courts chat the exercise of the

privilege einst self ineriitination “cannot be a breach

af dutz to che oburt““ In re Graue, 282 N. V. 488, 438, 26

N. E. 2d 963, 967. A duty that’ is not in fact an inherent

part af the function of a lawyer. and over a century of

8 — vive

testimony 18

hälities eannat be: presumed: ‘OF: e se by a

— te mos administrative func-

ed State eee

. Sa ecu enn n“

FCC

. :

; Ti * ‘ tis ;

Nn Ggith SA &

DEIWMe@re. As .a me

13

Ethics, 59, 69-75; (1954) 1 Wise, Legal Ethics, 174.190

1066). ‘We note that courts and commentators» have

distinguished the function of an attorney from that of

@ policeman in this regard, oonelnding that an attorney.

may not be disciplined for a refusal’ to testify: based upom

the privilege. against ; salf-incrimination; even though. a

Dalieeman man he dismigsed. See: de re Holand, 37% DL.

446, 36 N. R. 2d 548 Ratner, Consequences.of Raverciging

the Privilege Against. Self-Incrimination,. 24. U. Chi. L.

Rew. 47. 408.508 (1957). Whether or not a polieeman’s

specific, ‘function. of reporting to his) superiors. all infor

mation ;concerning illicit: activity permits bis; dismissal

for refusing to disclose such information in relianee:upon:

the privilege, it is clear that the policeman’s’ relationship

to the department which employs him differs from the

private attorney's relationship to the ‘courts. See Cammer

* * * 8

Thus, as we have shown, the atate's action in disbarring

petitioner does not full within the categories of govern-

mental eonduet which are consistent with the guaranties:

of the privilege against self. inerimination As we argued!

in our opening brief, at pp. 26-9; the record in ‘this: ease

Court concerning the Judicial Inquiry at issue bere

strongly indicate that the state’s action was imposed fbr

lege. At the ‘least, the record:iestablishes:that: the wotion!

i a 5 4 8 ae

© 4 . }

1928 * A Dr.

i nr * rs i Loe Ht) 9

on * ate di was to + t * *

2

. i fade mee amen UN NS

1 J 1 8 See 1 r

N 8 amn ee ~~ “eS Pe i

n,

5 nde ; eat se » *

ern wir 1 8 e an .

y "ivy * * 10 rae e 12 .

N 4 1 * 141 + .

* — . ]

* 32 tae NI >

22

17

N

» > 125 mt

. — 5 . . 79 f Korat bee we * Spo 3 22 A tas pd Bee .

. a . . Se eS 8 . Fe eee 55 2 ££

nn ͤ erences Bes robin

‘i ; 1 1 * } 5

: 8 2 5 N be W

e ee ee ee e ES

: * * 88 a 0 8

.

5 N

5 s J

Ae

me privilere.

—— — ——— —

~~ Respectfully submitted,

wink . .. Lawrence J. Larro, |

Wurm H. Dempsey, In.,

Manrix J. FLxxx,

734 Fifteenth Street, N W.

y Washington, D.C. 20005,

Attorneys for Petitioner.

Of pass si

BxnxanD Suskzxm,

235 East 42nd Street,

New York 17, New Tork.

ene & dene A4 8

734 Fifteenth Street, N. W.,

Washington, D. C. 20005.

S = mone wer

Na NG AN Ni 8 .

8 a

8 A abe 2 PN HOR

* 2

* 5 : * 4 * err

ii 8 ei i

‘ * 1 me

Ee ee OP ee * « ® pees *

VES tee i 888555 su 2 2% x 3 ai’: 74

BLANK

PAGE