LOCATION: United States Senate
DOCKET NO.: 378
DECIDED BY: Warren Court (1958-1962)
CITATION: 360 US 287 (1959)
ARGUED: Mar 25, 1959
DECIDED: Jun 15, 1959
Facts of the case
Media for Anonymous Nos. 6 and 7 v. Baker
Audio Transcription for Oral Argument - March 25, 1959 in Anonymous Nos. 6 and 7 v. Baker
Raphael H. Weissman:
.Mr. Chief Justice, and may it please the Court.
This is an appeal from contempt of court convictions made by a New York State Supreme Court justice, conducting a judicial inquiry into alleged so called ambulance chasing in Kings County, Brooklyn, New York.
The appellants were sentenced 30 days to sit in prison for refusal to answer questions.
Each appellant served two days and they are both enlarged in bail pending the determination of the appeal.
Their refusal to answer these questions was based upon the fact that the justice denied or refused to allow their counsel to be present in the courtroom while they were being questioned.
And the appellants now make a claim on this appeal that the denial of their counsel's presence in the courtroom while they were being questioned and the appellants now make the claim on this appeal that the denial of their counsel presence in the courtroom where they were being question was a denial to them of their Fourteenth Amendment due process rights.
The order of this Court of November was from the consideration of jurisdiction until the argument of the case on appeal.
Our position on that jurisdictional aspect is that appeal does lie here as a matter of technical right, and in any event a substantial question being presented that the Court can make the decision of the question by the route of certiorari if for technical reasons, appeal fails.
Now, on the right to come here by way of appeal, the appellants take the position that Section 90 subdivision 10 of our local judiciary law in the State of New York, as construed and applied in this case, denied them their Fourteenth Amendment due process.
The section in brief provides for conduct of investigations by the appellate division of the conduct of attorneys at law.
And one of the provisions is that until a certain stage is reached, these investigations must be made privately.
Now in this case, the review of the commitments on the local law has to be taken by so called Article 78 proceedings, the equivalent of a common law certiorari and where a justice of the Supreme Court is involved as a party, the proceeding must be initiated in the intermediate appellate court or the appellate division of the Supreme Court of the State of New York.
So that the instant case started by original petitions in the appellate division of the Supreme Court for a review of these commitments.
The appellate division in this case, dismissed the petition on the ground that there was no distinction between the case we presented and a prior case which we designate as a companion case, which had then recently been decided by the appellate division and needs to appeal had been denied by the Court of Appeals.
In our case, the essential part of the ruling on this point is stated on page 10 of our brief and the appellate division said that we contented that our case was different from Anonymous M from the so called companion case.
They cite the Anonymous M case and they find that there was no difference and therefore our petitions were dismissed.
Now the Anonymous M case, the opinion on that or the essential portion on jurisdiction is printed on page 15 of our brief and there we say that the appellate division construed the right of the justice conducting the inquiry to exclude counsel to come out of this Section 90 subdivision 10.
The excerpt of this is a short one, it's central, and I'll read it.
The order also provided, this is from the companion case, that for the purposes of protecting the reputation of innocent persons, the said inquiry and investigation shall be conducted in private pursuant to the provisions of the judiciary law Section 90, Subdivision 10.
Then I have omitted certain portions and they conclude, it was not an abuse of discretion for the additional special term to exclude petitioner's attorney from the room while petitioner was being questioned.
Now was it a violation of his constitutional rights?
Citing a local case which has nothing to do with it and matter of Groban then recently decided in this Court in judiciary law Section 90, so that we say that our petitions were dismissed in the appellate division on the ground that this local statute authorized the exclusion of counsel in order to maintain the statutory privacy.
Now after the dismissal of our petitions in the intermediary appellate court, we took an appeal as a matter of a right to the Court of Appeals to higher State Court of New York on the ground that a constitutional question was involved.
Then counsel for respondent made a motion in that court to dismiss on the ground that no substantial constitutional question was involved and the Court of Appeals granted the motion to dismiss on the ground that no substantial constitutional question was involved.
It should be no different if there was no challenge to the form in which we took our appeal.
It was the substance of our appeal that was thus adjudicated and we say that under the decisions of this Court that adjudication by the Court of Appeals at least for the purposes of jurisdiction is an affirmance of what was done in the appellate division.
Now with that as the premise, this is the way we start out our right to appeal as a technical matter under the decisions of this Court.
This Court will not review a construction of the statute of the state, especially in its constitutional aspect unless the court -- the higher State Court itself either had an opportunity to construe it in relation to the constitutional challenge or in fact they construe it in relation to the constitutional challenge.
Now we say that the appellate division decision went up to the Court of Appeals which the Court of Appeals in effect did affirm, gave a full and complete notice that what was done here was done under this local statute, that it was challenged on the ground that would be unconstitutionality that is to say that it would deny due process.
And that the Court of Appeals had ample opportunity to say what it wanted to say in point of construction of that statute so that we say as a technical legal manner that appeal lies here because we have satisfied the rule, laid down on the cases of this Court that the highest State Court either did construe it or had a chance to construe it.