*1 ANONYMOUS NOS. 6 AND 7 v. BAKER, JUSTICE THE
OF SUPREME COURT OF NEW YORK. Argued No. 378. June 1959. March 1959. Decided *2 filed,a brief the cause and argued H. Raphael Weissman appellants. for cause,for With argued appellee. M.
Denis Hurley Castaldi,and were; A. Michael him brief Michael Caputo. the. of the opinion delivered Harlan Justice
Mr.. Court. contempt refusal
Appellants have been convicted quéstions put to them as witnesses to answer pertinent Inquiry alleged im- judicial summoned in' a state into bar. The sole issue before proper practices local us is whether this the Due Process conviction offended of the Amendment to -the Federal Clause Fourteenth justice'in by reason'-of the fact that Constitution retained charge required had hearing they appellants to remain outside the room while being interrogated, though expressed even he his were questioning suspend course whenever readiness claim is to consult with counsel. No appellants wished represented by coun- fully that were not appellants made contempt proceedings in the themselves or sel lacking process. due proceedings were otherwise 1957, Appellate Division of the 21, January On Depart- New York, Court of the State of Second Supreme §to 90 of the State ment, acting pursuant Law, N, (McKinney 1948), Ann. and in §90 29 Y. Laws Brooklyn of the petition to a Bar Association response chasing” “ambulance unethical charging related County Bar,1 Kings of the among segments practices conditions alleged into these an ordered Mr. Court, Supreme Term an Additional presiding.2 Arkwright investiga detectives private licensed Appellants, the Special appeared before attorneys, tors, but not by counsel. accompanied to witness pursuant subpoenas, authority acting upon justice,- presiding of this same course during the decision made appellate Arkwright, App. Anonymous Matter M. Inquiry, appeal denied, leave to 535, N. Y. S. 2d 790, Div. 2d 538, 149 N. E. 2d Y. 2d 2d 173 N. S. 4 N. Y. not be their counsel would informed being ques they while in the room allowed him at free to consult with tioned, but would *3 Solely of. interrogation. during time because appel counsel, of upon participation limitation questions all nianner of refused to answer thereafter lants á carrying put contempt, to them. Their conviction Appel days’ imprisonment, sentence of 30 followed.3 Y. 719, Div. 2d 176 N. S. affirmed, App. late Division 6 finding of 227, Appeals, 2d and the New York Court things: among petition alleged, 1 The other of Bar Association following: agreements practices' of “That such in the unfair result obtaining retainer; by lawyers system of some of maintenance congestion accidents; of calendars information of prompt trial; brought unworthy to be causes which are never intended conception by lawyers' engaged practice that the rela a false in this tionship attorney is commercial transaction in between and client a unimportant part; plays which the interest of client delay Courts; in the impairment of in the confidence justice.”. administration of 2 31, 1958, Arkwright’s December Upon Mr. Justice retirement on designated Edward Baker of Appellate Division Mr. Justice G. Supreme his successor. the New York Court as 3 serving days enlarged two appellant was on bail after Each his sentence.
290 question involved,” dis
“no substantial constitutional
Y.
ensuing appeals.
1034, 1035,
4 N.
2d
152 N. E.
missed
Appellants, proceeding
2d
N. Y.
687.
651, 177
S. 2d
then
(2),4
appealed
under
S. C. 1257
to this Court,
§
28 U.
jurisdiction
consideration
and we
further
postponed
hearing on
merits.
over the in Division Appellate by law placed the bar is n 9(X § Law N. Y. Court. Supreme State of conditions apprised is Division Appellate When here, as' a usually appoints, calling general Term, Special at Court, sitting Supreme The duties of such investigation. preliminary to make a advisory, culminat- investigatory, justice purely a are Division to the reports or more ing in one In the words be based. may action then which future York- New Judge of the Cardozo, then Chief Mr. Justice Term thus Special at proceedings Appeals, Court of inquisition, “preliminary a simply constitute without estab- in decree nor ending neither adversary parties, remedy a lishing any right quasi-administrative ... may move information that whereby given the court is ex rel. Karlin People . . . .” it to other acts thereafter E. 492. Culkin, 465, 479, Y. 162 N. 248 N. at Term áre con- Customarily proceedings which Mr. Justice Cardozo private, ducted for reasons at (248 Y., N. explained in the Karlin case as follows 492): 478-479, E., 162 N. at conceding to the argument pressed
“The is a put into its hands power inquisition a we lawyer, fair fame of a however weapon whereby the mercy tongue wrong, innocent of is calling a Reputation ignorance malice. bloom, lost, and its once plant growth, is a of tender easily appear The mere summons to restored. conduct, a report at such and make to one’s Dangers' are may reproach. become a slur .and remedy here, remedy. indeed but not without a prelimi- in its inquisition is to make the secret one judicial nary stages. This has been doné the first *5 292 many instances, by least in the order
department, at justice the It has presiding hearing. of the at by judicial ... department been the second done directing inquiry. the the Appellate order of Division' not a inquisition sitting A ... is preliminary 4 the fair of section of the intendment within Judiciary whereby of a court are sittings Law required public. . . is analogue to be . The closest inquisition by grand jury-for discovery crime.”
By analogy grand are not jury proceedings per counsel mitted attend the examination witnesses called ¿n investigation, People cf. ex rel. McDonald v. Keeler, 463, although 99 N. Y. N. 485, 615, 626-627,5 2 E. the New Special York courts have held that may in its périnit such attendance where discretion appears that the witness himself target inquiry. See Matter M. Anonymous Arkwright, 5 supra, App. Div. 2d, 791, at 170 N. Y. S. 2d, 538.
These practices have legislative approval, received evidenced by (10) § 90 State Law, quoted in the margin,6 the Legislature’s refusal in 1958
5 investigations In of this New presence kind York has deemed “the lawyers . . not thorough conducive to the .. economical and as Groban, certainment of the re facts.” 352 S. U. (concurring opinion); In an interim report, release of which was authorized Division, Arkwright Mr. Justice stated- that from March of 1957 to 4,875 of 1958 the June issued “request” subpoenas, 2,150 witness and duces tecum subpoenas, and y examined approximatel 5,000 records of companies. insurance the. During period Inquiry’s same informally staff examined about (cid:127) 2,500 persons, May arid of 1957 to June of some 726 interrogated witnesses were before the Term itself. 6 “Any contrary statute or rule notwithstanding, papers, all upon application records and documents or examination of person attorney for admission as an counsellor at law and any complaint, inquiry, proceeding relating to the Rights Law, State 8 N. Y. Laws Ann. to amend the Civil require 1-242 so as to (McKinney 1948), § *6 interrogation to. the of in be allowed attend witnesses proceedings of this character.7 discipline attorney attorneys, or of or shall be conduct an sealed and private However, good being be deemed and confidential. cause having' shown, justices appellate jurisdiction the of the division are by empowered, order, to discretion, permit in their written to be divulged any part papers, all or records and documents. such acting presiding presiding justice the of the or of said discretion ’ division, may appellate order be made either without notice such thereby attorneys upon' persons or to be affected or to the may purpose the he In furtherance of notice to them as direct. empowered, subdivision, justices are also in their dis- of this said they may cretion, such rules as deem from time to time to make charges regard foregoing, nécessary. to in the event that Without juris- by appellate having justices division are sustained investigation relating to the any complaint, proceeding or in diction discipline any attorney, the records and documents in or conduct thereto shall be deemed records.” relation Rights Law a the Civil proposed A would have added to bill by representation 12-a, “Right of providing as follows: new § investigations. inquiries persons called witnesses in certain any judicial . in by . . Any or before person called as a witness any . . or judge, . authorized vestigating committee, or before ... testimony investigation, whose inquiry or any to conduct directed any subsequent any person in may or other to involve himself tend subsequent any dis quasi-criminal prosecution or or criminal misconduct, or the revo ... proceeding professional ciplinary profession, engage in a trade any suspension of license to or cation by accompanied his counsel right to-be business, shall have or (a) object to the his to client entitled on behalf shall be who briefly thereon; argue inquiry . and to . . . . jurisdiction of the . legal rights him of his client to advise his (b) privately with to confer (c) pro conference; object to requests to such a his client whenever (d) .legal rights; and by his client’s him violate deemed cedures to behalf, the conclusion of his direct his witness on question the subject testimony, matter relevant may be Im limitations as reasonable investigation, subject shch investigation.” inquiry or presiding at such by the officer posed Thus, what we have here Division’s private8 order that Term’s exclusion of counsel from the room is Qr a procedural not particular innovation expression in a but an judge particular case, of estab- policy. lished state now asked to We are declare that policy unconstitutional. only
To do so necessitate our ignoring would support considerations New York’s weighty policy, which require power but would lis to limit state in this area far beyond indicated anything past “right Court’s the Four counsel” decisions under teenth Although Amendment. we have held that state criminal these M. proceedings, not, which are Matter of Anonymous Arkwright, supra, has defendant *7 unqualified right to be at trial represented by retained counsel, Fretag, Chandler v. 348 S. we have U. right extended that to the investigation stages proceedings. LaGay, See Cicenia v. 357 504; U. S. see. Crooker California, also 357 S. 433. Again, U. while it has been right decided that there is a constitutional a contempt criminal proceeding, growing out of a state investigation, conducted before a judge sitting as 8 establishing Division’s order provided “that, purpose protecting for the reputation persons, inquiry investigation innocent the said and be shall con private, pursuant ducted in provisions .of Law (Section 90, 10); facts, testimony Subdivision that all and adduced, relating information papers and all inquiry to this and investigation, except order,..shall this be sealed and be deemed confi dential; facts, testimony and that none of such and information papers none of the proceedings herein, and except order, this public divulged shall made or otherwise until further order of court; and- . .. conclusion of said investigation the said make Justice shall- and file with this court report setting his forth his proceedings, findings his and his recommendations.”
-295 Oliver, 257,9 In re U. S. Jury,” Man a “One Grand investi in a state a examined witness we have held-that entitled constitutionally is not conducted gation private being interrogated. of counsel while tó the assistance Groban, S. 330. re U. constitutionality of upheld the In the Groban case we courts, the Ohio as construed which, an Ohio statute from the Fire Marshal to exclude authorized the testify those summoned representing room counsel of a fire. him in an into the causes before 332-333): (at there said We under, duty legal
“The fact that testimony might provide speak to. and that them not mean charges against basis criminal does right a. to the assistance had constitutional here are Appellants of their counsel. .witnesses sought information was as to the cause of the whom A grand jury insist, fire. witness before a cannot right, being repre- as a matter of constitutional sented his nor can a witness before other counsel, investigatory bodies. There is no more reason to of counsel before a Fire Marshal presence allow trying interest to determine the cause of a Obviously fire. these situations evidence may possibly lay open obtained a witness to criminal charges. charges When such are made in a criminal proceeding, may he then the presence demand of his *8 counsel for his defense. protection Until then his privilege is the against, (Foot- self-incrimination.” omitted.) *9 appellants wére role in which these that the think We judged by be the actions of is to Inquiry summoned to the statements of a subordinate Term, by the by nothing more than evidently motivated member, staff which would plea to of self-incrimination desire avoid obtaining possibly helpful Inquiry have blocked Special Term, that record shows information. if occurrence, to this which caused aware of the claims as fully presence to in the explored be their that appellants, they assured were counsel, repeatedly holding be actions], themselves out to from defendant’s [insur- holding out be from other carrier- and also themselves to ance] attorney’s our agencies, and office. That in one the district instance tampered been that these statements had had disclosed speak with, it was relative to -this that we wished and that actually taken them to- find out if these statements were attorneys these statements were Service, Gotham Claims for what tampering by them taken, was done and whether attorney. employees or at direction of some Zangara [appellants’ the interests of that “I told counsel] Mr.. attorneys Inquiry primarily at the that' the Judicial was directed cooperated they with, they I felt that if fully had done business something if that the'Court would take consideration that.into ' (cid:127) had unethical been done. my prima opinion there was facie evidence “I further stated that in Amendment, plead the Fifth that the clients decided to event attorney. to the district refer matter . my would opinion, did not indicate that that “I stated it was I being considered done', I it was even did not indicate opinion they had giving my I’ for which merely the time. was .record, that quite off the this was all asked. I made clear very being asking favor, and I- was to a amounted __what indicating I with And was and honest frank thanked them. picture was. to them what the indicating on the matter fact, I final action “In remember charge part your Honor be on the -'would have to [the finally rule Division would Inquiry] and that actually be done.” would as to what . solely they might
before the That witnesses.13 *10 nothing later be criminal adds to their charges, faced with present Groban, In supra, claim. re constitutional 332-333. Appeals The of of final order the Court of the State e
New York must b Affirmed. with whom Justice, The Black, Justice .Chief Mr. Douglas concur, and Mr. Justice Brennan Mr. dissenting. Groban, ago, re years U. S. decided two
upheld as constitutional of a state fire action marshal in compelling persons a to suspected burning building testify about the fire and without secret benefit the presence counsel. Four of us on dissented ground that such secret inquisitions violated the Due persisted record shows that when in their re appellants court’s, despite calcitrance answer,' directions to it called counsel, appellants’ him that informed it considered refusals con temptuous appellants reappear days directed and him and to two time, argument by why thereafter. At that the court heard again be contempt. should not held in It then told counsel appellant merely witness, defendant, each was “here as a not as a respondent. not as talking a You I understand am about. what explain You explained can pro him.” The court next appellant: cedure it as to would follow each going questions “We are him to ask some of the that were asked give before you, every and if he wishes to consult will oppor- we him tunity any during to do so time questioning time that at. I direct. will, you if retire from will we courtroom call . .'. [him] tothe stand.”
Appellants refusing continued in to answer. The court held them in contempt and recalled counsel for the contention that corridor with the .their conversation staff assistant established their argument by status It then as.defendants. heard punish- counsel on ment, challenged imposed sentence. In this Amendment. of the Fourteenth
Process Clause in com- judge of a state upholds the action case Court getting state- testimony persons suspected pelling pre- cases under false negligence ments of defendants I these statements.* “tampering” later with tenses and than judge for a no less process it due think violates incom testimony given compel a fire marshal helped judges In fact Chamber who it was Star municado. so obnoxious proceedings to make closed-door Rights guarantees the Bill country com secretly of counsel. And trials the assistance dangerous highly its testimony lose does pelled “pre only represents merely1 because potentialities given- the court whereby . . . liminary inquisition *11 move it to other acts thereafter.” may information that this.inquisition that holding justify Nor this does record from secrecy and barred counsel ádopted mantle of the the reputation tender solicitude for the room out of contempt Doubtless de this case. the defendants lawyer themselves and defendants are fendants’ saving as much interested in as capable perhaps least judge sending jail. who them reputations j here who stark issue is whether naked, ajjudge any govern- try public other actually must cases —or consistently with due ment for that matter —can official lay persons testify perhaps process compel crime, later secret for their conviction groundwork but present counsel for the can be' chambers, where State suspect upholding for the cannot. where counsel again inquisitions secret the Court once retreats maintaining I highest duty, what to be its conceive * Despite persons were' judge’s repeated statements these judge’s defendants, the statement of a member of “witnesses” opinion, makes clear staif, set out in note 12 of Court’s suspected investigation for conduct. and under criminal by guaranteed and liberties rights unimpaired Rights. Bill Cf. Amendment and the Fourteenth Maryland, Illinois, 121; Frank v. v. 359 U. S. Bartkus States, ante, 109; p. v. United 360; Barenblatt U. S. ante, my in Groban Wyman, p. 72. Here as Uphaus constitutionally be that no official can answer would I power over individual. dangerous exercise such a therefore reverse conviction. would notes controlling Groban case is here requires rejec- and of appellants' tion constitutional claims. As- did Ohio Groban, in York has a privilege against New self-incrim-' p. 288, supra; 13, See Note infra. 10Page’s Code, Ohio Rev. 3737.13. § freely was Art. which ination, Const., I, N. Y. investigation,11 in this by exercised other witnesses fully appellants. Moreover, was available to these circumstance that was conducted this an than an experienced judge, rather administrative appellants throughout and the fact official, freely given' right to consult interrogation were- notwithstanding his exclusion from the counsel, make, claim here far tenable room, constitutional less wanting than that in found Groban. Appellants escape by arguing from Groban seek Term not as mere Special were summoned before future eye prosecution. witnesses but with to their This an informal contention rests “off the record” appellants conversation which and their counsel had with Inquiry’s an assistant on the staff some four months before actually examined. In response to coun- as sel’s to “what was wanted of his clients matter,” the replies assistant made the set forth margin.12 report already In the mentioned, 5, supra, interim Note Mr. Arkwright stated: scrupulou's apprising .attorneys “We have been all of the stated purposes of the Appellate Division, as laid down witnesses, required, whenever have been advised of their constitutional rights. many persons “As- as 30 sworn as witnesses'before the Additional have, unquestioned is their right, invoked their privilege against constitutional self-incrimination, including 11 at- torneys roadblock; and 10 doctors. Faced with this Counsel Inquiry has develop present independent been forced to and to evidence of the facts.” 12 “. . . I pussyfoot indicated that we did not with intend that, them, trying we trap any manner, were not them but testimony and evidence had come before us in the course of our investigation, employ that someone in the Claims Gotham [appellants’ partnership] had, Service frequency, with some obtained pending prospective negligence from defendants .statements [in