Hannah v. Larche – Oral Argument – January 18, 1960

Media for Hannah v. Larche

Audio Transcription for Oral Argument – January 19, 1960 (Part 1) in Hannah v. Larche
Audio Transcription for Oral Argument – January 19, 1960 (Part 2) in Hannah v. Larche

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Earl Warren:

Number 49, John A. Hannah et al., Appellants, versus Margaret M. Larche et al., and number 550 John A. Hannah et al., Petitioners, versus J. A. H. Slawson et al.

Mr. Walsh.

Lawrence E. Walsh:

Mr. Chief Justice —

Earl Warren:

Mr. Walsh.

Lawrence E. Walsh:

— may it please the Court.

These two cases both arise in the Western District of Louisiana.

One is before you on an appeal from a three-judge court in that district and other is before you on petition for certiorari in advance of the Court of Appeals’ decision reviewing a one-judge decision — one-judge judgment in the same district.

The reason that we have asked and our opponents have not opposed bringing the one-judge case along at the same time is that the judgments in both cases are identical and the — the — all of the issues in the one-judge case are included within those of the three-judge case.

Both judgments enjoin the Civil Rights Commission from holding a hearing in the State of Louisiana with respect to voting — with — with respect to racial discrimination in the administration of the election laws unless the Commission permits independent cross-examination of the witnesses by counsel for the various voting registrars and others who may be adversely affected by that testimony.

Adversely affected in the sense of (Inaudible) or — or shame.

The plaintiffs in the Larche case are all registrars in various counties in Louisiana, mostly in the northwestern part of the State.

The plaintiffs in the Slawson case are private individuals.

One is a former registrar and the other five are persons who have been active in connection with challenging registrants in — in purging from the registers, persons who had already registered upon grounds which are usually highly technical.

Potter Stewart:

Can any citizen do that in Louisiana?

Lawrence E. Walsh:

Yes.

Two citizens, I believe, are required for us to the challenge.

There are two registered voters, I should say, as Mr. — as the Attorney General points out.

Both sets of plaintiffs have asked the court — asked the court below for relief in two capacities as prospective witnesses themselves and as persons who anticipated being defamed by the testimony of other witnesses who testified.

The court below, Judge Wisdom dissenting, granted the injunction and its theory was that these persons are really under investigation for a criminal misconduct that they’re subject to loss of office, if in fact, they did commit a crime.

And that in any event, they’re subject to public opprobrium and scorn.

And that therefore, Greene against McElroy governs.

And that under the Greene case, it is assumed that Congress intended to require the Civil Rights Commission to permit independent cross-examination of these witnesses and also confrontation and appraisal of the charges which were — were to be the subject of the hearing.

And that inasmuch as Congress did not, in expressed negative terms say that no such cross-examination was required.

The Court interprets the statute to require such independent cross-examination.

And under those circumstances, the Civil Rights Commission’s rules of procedure which limit cross-examination to members of the Commission and the Commission staff was held in variance with the statute and this made it unnecessary for the court below to go to the constitutional question, because it felt the injunction was justified because the rules of the Commission were not in accord with the statute.

Hugo L. Black:

Is that the only question decided?

Lawrence E. Walsh:

That is the only question decided except it also held that these — that the Commission should let the witnesses — these — these witnesses — these plaintiffs, know in advance, the precise complaints which were to be the subject of the hearing.

In other words, to let them see the written complaints, what the Commission had received.

The other question decided below was to hold the Civil Rights Commission — that — to the statute, the Civil Rights Act of 1957, insofar as it established the Commission to be a constitutional exercise of Congress’ power.

The plaintiffs had challenged that as a — as a proper legislative act of Congress on the theory somewhat the same as in the Raines case, which was argued here a week ago, that inasmuch as the Commission was not limited in its investigation to acts of state officials and could in its investigations and hearings go into questions of acts of individuals and connects with — in connection with voting violations that it was not a proper legislative purpose.

Audio Transcription for Oral Argument – January 19, 1960 (Part 2) in Hannah v. Larche

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Lawrence E. Walsh:

But the court below held that it was a proper legislative purpose and held it in favor of the Commission to that extent.

Hugo L. Black:

Would you mind pointing out in record, the precise ruling that you consider to be before us?

Lawrence E. Walsh:

Yes, sir.

Hugo L. Black:

Besides the point which we have to decide.

Lawrence E. Walsh:

The opinions is at the very end of the record and —

Hugo L. Black:

At the end of the record, the printed record?

Lawrence E. Walsh:

The printed record at page 250.

And the issues are posed that — in this way, by the court below.

And this is after the court had held the statute, the act constitutional as a proper exercise of legislative power said, “The remaining pertinent and serious questions presented maybe as stated.

One, did Congress in creating the Commission, specifically authorize it to adopt rules for investigations conducted under Section 104 (a) (1) of the Act, which would deprive parties investigated of their rights of confrontation and cross-examination and their right to be apprised of the charges against them.”

And then it states the second question which it never reached, “If Congress did so authorize the Commission and such authorization constitutionally permissible?

Hugo L. Black:

But that first is what you consider to be the question?

Lawrence E. Walsh:

Yes, sir.

Hugo L. Black:

(Voice Overlap) —

Lawrence E. Walsh:

And the real question.

And the position of the Commission is that the Civil Rights Commission has a duty to make this survey for Congress.

It has no power whatever to act adversely to any of the — of the plaintiffs.

It can decide nothing and its action is not even a step along the way to any acts and adverse to the plaintiffs.

And therefore, of course, Greene against McElroy is not applicable at all.

Hugo L. Black:

Then we are to consider that the rules that have been adopted do deprive persons investigated, I won’t say their rights.

And do deprive them of any opportunity to confront and cross-examine witnesses brought before the Commission.

Lawrence E. Walsh:

Actually, Your Honor, I don’t think you have to decide anything except whether you have — except to assume that the rules deprived him of the right to independent cross-examination.

I’m sure that the facts will show in this case, there’s no denial of appraisal or confrontation.

Hugo L. Black:

Did the — but the — the rule does provide that they shall not be confronted, or doesn’t it?

Lawrence E. Walsh:

No, no.

The — the rule doesn’t mention the word confrontation at all, there — the — except that any —

Hugo L. Black:

But it does deprive them of their right of cross-examination?

Lawrence E. Walsh:

It does deprive them of their right of cross-examination.

And as to confrontation, the rules require that in any case where the Commission is aware that a person will be defamed by the testimony, is — is a fair play rules of the — of the House of Representatives, that he must — that the testimony must be taken in executive session and the person adversely affected notified.

And then the rules go further and require that the person adversely affected by the testimony shall receive a transcript of the testimony taken in executive session.

Audio Transcription for Oral Argument – January 19, 1960 (Part 2) in Hannah v. Larche

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Hugo L. Black:

Do you — do we have the question before us, as to whether they can examine them in executive session entirely, is that here?

Lawrence E. Walsh:

No.

There’s no — no challenge to the use of the executive session here the —

How does the question arise?

These people, did they actually get before the Commission, the —

Lawrence E. Walsh:

No, sir.No, Your — Mr. Justice Harlan, they did not.

The — the Commission started its investigation of these Louisiana complaints and on the eve of the hearing, Friday before the hearing was to begin on the next Monday, this restraining order was issued and the — the holding of the hearing enjoined.

On allegations that this would be the kind of a hearing that they have?

Lawrence E. Walsh:

On allegations this would be a kind of hearing it would have and it would cause irreparable damage once this testimony came out.

And it was denied by the Commission that the kind of a hearing that they figure it was the kind that would be here?

Lawrence E. Walsh:

The — the Commission denied the use of the word charges.

The — the Commission conceded that a substantial number of these complaints, and it was stipulated.

That a substantial number of these complaints would allege a deprivation of the right to vote because of race through the acts of these plaintiff registrars, but there was no other concession as to the nature of the charges or to — this about losing jobs or criminal danger of criminal prosecution or any of those things.

You know, all I meant to get out was that if these people went before the Commission, there’s no (Inaudible) that they would not be — you wouldn’t take issue with the claim whether they are entitled to have it or not, they would not be entitled to cross-examine and —

Lawrence E. Walsh:

Oh, there’s no — no issue —

There’s no issue about that —

Lawrence E. Walsh:

The rules are expressed in that respect.

Yes.

Charles E. Whittaker:

I think Judge (Inaudible) in that — their power to review, there has been — used the phrase, “statute deprived them of their right to confrontation and cross-examination,” I think you answered, yes.

Now, do you really mean that —

Lawrence E. Walsh:

Well, now, I believe —

Charles E. Whittaker:

— deprive them of a right to confrontation and cross-examination?

Lawrence E. Walsh:

Mr. Justice Whittaker, we mean that they did not have such a right.

Charles E. Whittaker:

You mean —

Lawrence E. Walsh:

Of their — their claimed right, excuse me, sir.

Hugo L. Black:

I think I said, opportunity.

I intended to change it if I could and was a mistake.

I (Inaudible) right was used here, but I thought I changed this opportunity.

Charles E. Whittaker:

Well that’s the issue we have, isn’t it?

Lawrence E. Walsh:

That — that’s the issue and the — the position of the Commission — the further position is that even if we applied Greene standards here, they’ve been met, whereas this Court in the Greene case, dealt with the problem of — of assembling fragments to find authorization for what the Secretary of Defense did.

Audio Transcription for Oral Argument – January 19, 1960 (Part 2) in Hannah v. Larche

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Lawrence E. Walsh:

Here, Congress has left nothing to anyone’s imagination.

It has set forth in one section the rules of procedure to be followed by this Commission.

And that the Commission has followed them and indeed liberalized them to some extent.

The — the facts as they occurred just before I get to the statute and go through it with care, it might help you to have — that seems to —

Hugo L. Black:

But they — they argue seemingly I have read the whole of the brief —

Lawrence E. Walsh:

Yes.

Hugo L. Black:

— but they argue a lot about being made to incriminate themselves and defaming themselves.

Is there anything — does that have to be decided here?

Lawrence E. Walsh:

No, the — they are not being asked — they — there’s nothing — no question of their privilege against self-incrimination here at all.

The only question is whether the danger of defamation from other witnesses —

Hugo L. Black:

(Voice Overlap) —

Lawrence E. Walsh:

— from — from persons who were deprived of the right to vote.

Hugo L. Black:

Well, that wouldn’t excuse them from coming as witnesses, would it?

Lawrence E. Walsh:

No, sir.

I don’t think so, Mr. Justice, but —

Hugo L. Black:

Is there objection aimed at the Commission’s right to investigate or the Commission’s right to call them in as witnesses?

Lawrence E. Walsh:

The — it’s aimed at — at both.

They say that they have no right to be called in as witnesses because they haven’t seen the written complaints and to see exactly what the complainant said about.

And they say that they’re — that the Commission has no right to hold this public hearing because they are not in the position to protect themselves, by independent cross-examination.

That’s the — the essence I think of the two —

Felix Frankfurter:

Does the — does defamation enter into the case because there maybe undisclosed complaints against them of a defamatory character, which they cannot meet because no disclosure is made of those withheld documents?

Lawrence E. Walsh:

That is their — their claim.

Felix Frankfurter:

Alright.

Lawrence E. Walsh:

The fact of the matter is that they — as that the facts will show, have been very well told, exactly what their (Voice Overlap) —

Felix Frankfurter:

That is — that’s the basis of their defamation.

Lawrence E. Walsh:

Yes, sir.

Charles E. Whittaker:

What’s the difference, if I may ask, the Greene (Inaudible) and the Groban (Inaudible)

Lawrence E. Walsh:

The Groban case went beyond our present case, because in — in the Groban case, there — there was some danger of prosecution.

And in investigating the cause of fire, there were some fear by the plaintiff that he might be the subject of ultimate criminal action.

And further in the Groban case, as I remember it, there was an element of secrecy, none of that is here.

Audio Transcription for Oral Argument – January 19, 1960 (Part 2) in Hannah v. Larche

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Lawrence E. Walsh:

This Commission has no power to do anything and as Your Honors have a chance to see their report on Louisiana and the statute which set them up, you will realize that this Commission had no interest in these registrars as individuals in the sense of targets at all that the —

Charles E. Whittaker:

(Inaudible) you were told in Groban, but the Fire Marshal might constitute to interrogate this man even though he was a suspect and we have no conflict.

Lawrence E. Walsh:

Yes, but we — we — I — I didn’t make myself clear.

We believe that Groban is a fortiori in our favor that — that we are well within the holding of the — of the Court in, In re Groban.

Charles E. Whittaker:

Oh, the distinction and there are existence you say, but the (Inaudible)

Lawrence E. Walsh:

Yes.

In other words — well, we could even satisfy the standards of the dissent.

I believe in, In re Groban.

Potter Stewart:

Groban was a Fourteenth Amendment case, was it not?

Lawrence E. Walsh:

Yes, sir.

It was.

Potter Stewart:

Actually (Voice Overlap) —

Lawrence E. Walsh:

Ohio statute.

The — the Commission was established in 1957, and just to tell you how this controversy arose, it divided its fields of activity into three, voting, housing and education.

We’re concerned only with voting.

Under the statute, the Commission is required to investigate every sworn complaint as to discrimination and voting.

And in — it started out with, I think, some 600 odd complaints throughout the country.

It went to Alabama first, because it had the most complaints there.

The next state was Louisiana where it had 63 or so complaints.

The Commission did not want to hold a hearing.

The — it has this duty to investigate, but no mandatory duty to hold a hearing.

And the — having received the complaints and checked the Louisiana statutes to find that Louisiana does have a literacy test which is an extremely difficult one, requiring voters to explain sections of the Constitution to the subjective satisfaction of the registrars in checking the statutes and the statistics released by the State’s Secretary of State to show the pattern of registration and seeing a gross disparity in some parishes between the population figures, between white and Negro and the registration figures between white and Negro.

It arrived at a point where it had to see the registrars’ records in those parishes to do a job for Congress and also had to ask the registrars for explanations, if they would give them.

And beginning in January of 1959 and lasting through until June of 1959, Mr. Gordon Tiffany, who was the Staff Director of the Commission, conducted extended negotiations with Attorney General Gremillion of Louisiana in the hope that this information could be obtained without the time and expense of a public hearing.

The Commissioners, I might add, are not fulltime government officers.

They are all men with fulltime private occupations, who give one or two days a month or whatever additional time may be needed to this work.

And the life of the Commission was running out with — and the — there was a question of whether this — it could hold another hearing on housing and because of the impossibility of reaching a voluntary solution here, this hearing was held.

I mention all these just to allay at the outset any thought of exposure for exposure’s sake.

This Commission didn’t want to hold a hearing and the only reason for it is that it felt that it had to hold a hearing to use its subpoenaing power which ultimately had to come into play, because it couldn’t get this information voluntarily.

Hugo L. Black:

Is there any federal statute which would make it a criminal offense?

Audio Transcription for Oral Argument – January 19, 1960 (Part 2) in Hannah v. Larche

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Lawrence E. Walsh:

These —

Hugo L. Black:

To deprive people of their vote on account of race?

Lawrence E. Walsh:

Yes.

If — if it’s done by — by conspiracy, Your Honor and that, I think, Section 242 of Title 18, deals with that subject.

In all those cases, there will be a question of — of intent and the — and Louisiana also has statutes, which makes it a crime to willfully disobey its election law.

So there — there are criminal statutes which would be available for prosecution.

All of them had elements of willfulness or intent and there’s nothing in this record that suggest that any complaint before the Commission alleges willfulness or intent or any such thing that — the Commission had were grievances.

People who say I thought I was entitled to vote.

I went to the registrar and as a matter of fact it’s in the report of the Commission, the substance of — of this type of complaint is available.

I went to the registrar and he asked me to read a section of the Constitution, said it didn’t satisfy him and I — I went back a second time and tried to do it and still didn’t satisfy him and I came home.

It’s so — there’s no suggestion in the record which justifies the inference that these people were being investigated in any way leading to criminal prosecution.

The entire record and the entire report of the Commission is that of a group trying to get an overall picture of a — of a national problem to fulfill its duty of reporting to Congress.

Hugo L. Black:

I suppose that you said though and I take that some difference in attacks made by witnesses.

Any witnesses or attacks made by people who might be subjected to criminal prosecution right now.

I’m not saying to what extent, but there might —

Lawrence E. Walsh:

If a person (Voice Overlap) —

Hugo L. Black:

— be different problems involved.

Lawrence E. Walsh:

If a person felt he might be subject to — to criminal prosecution, would have the problem of — of McGrain against Daugherty where a legislative investigation would incidentally — might incidentally disclose a misconduct for a crime by a person who was a subject to the testimony.

Felix Frankfurter:

Well, we can’t consider this case or can we that all possibility of whatever scienter or willfullness is required under theirs to the right statute is to be excluded from consideration.

But none of this may — no — no withholding of the right or the opportunity, the right about — otherwise qualify Negro citizens to vote is to preclude the assumption there might be some willfulness about it.

Is that to be excluded from all considerations?

Lawrence E. Walsh:

No, that —

Felix Frankfurter:

What the Commissioner was doing, I’m just asking that.

I’m only —

Lawrence E. Walsh:

But that the Commission was excluding this — the possibility of willfulness?

No —

Felix Frankfurter:

I don’t mean in these — these specific instances but in the whole domain they’re requiring, they don’t exclude willfulness.

Lawrence E. Walsh:

No, sir.

No.

Felix Frankfurter:

I misunderstood you.

Audio Transcription for Oral Argument – January 19, 1960 (Part 2) in Hannah v. Larche

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Lawrence E. Walsh:

I — I’m sorry if I —

Felix Frankfurter:

Oh, no — no.

It’s all clear now.

Lawrence E. Walsh:

But the — after receiving the complaints, the — the Commission tried to arrange interviews with the registrars and get the information that way and then when that failed, they tried to negotiate out a series of interrogatories.

And they actually sent out to the registrars a — a series of interrogatories with 300 odd questions which laid out explicitly and in the greatest detail, the points as to which they were curious and the hope that by this means they could get the information which would explain or put in the proper perspective these complaints, which they’d receive.

At this point, Your Honors, that if I — if I might, I would like to direct attention to the statute which set up the Commission.So that it’s — it’s the limitations on its powers might be apparent to all of us as — as we consider the adequacy of its procedures.

And at page 62, in the record, is the Act — the Civil Rights Act of 1957, begins at page 59.

But at page 62, in Section 104, which is the only section specifying the duties of the Commission and inferentially, the powers of the Commission.

You’ll see that breaks into the three subjects that it’s to — required to investigate sworn charges that persons who were deprived of their right to vote by — because of race.

And that it’s required to study and collect information concerning legal developments denying equal protection of the law.

And three, to appraise the laws and policies of the Federal Government with respect to equal protection of the laws.

And all that it can do ultimately is set forth in subparagraph (b) which requires it to report to the President and to the Congress its activities, findings and recommendations.60 days after it reports, it’s — it ceases to exist, so that’s all that it can do.

Hugo L. Black:

Well is that decisive?

Lawrence E. Walsh:

Now, I think that’s decisive as far as any reference to the Greene case is concerned.

Because in the Greene case, it was conceded that the action of the — of the administrator caused the loss of a person’s employment.

And it’s further that it limited his field of employment.

And that — it was in the — in the Greene case, there was an adjudication which whether agreed with or not or whether persuasive or not, prevented a man from having that which he needed in order to work.

Hugo L. Black:

Would mean a difference here in your judgment if this — instead of saying what it does that it investigate allegations in writing under oath?

Certain citizens have violated the criminal statutes by depriving people their vote on account of race or color.

This Commission isn’t authorized to investigate it and make a report to the President or the Attorney General within 60 days?

Lawrence E. Walsh:

I think that — Your — Your Honor, I would believe that such a statute could be sustained with the same procedures.

But there would be there a greater danger because the object of the Commission would’ve been narrowed to those acts which are criminal and it would be clear that it and its findings was passing in a sense, on a question of someone — whether someone had committed a crime or not.

Whereas here, there’s no suggestion that the Commission is doing that in its report to the extent that it’s been complete —

Hugo L. Black:

It’s not called a crime, but it would be rather difficult to get up actions of that kind, it wouldn’t violate the voting, wouldn’t it?

Lawrence E. Walsh:

Well, that — that in Louisiana, Mr. Justice Black, it’s — it’s not — it’s not too easy to equate the denial of registration with a crime, because it has these statutes which requires that a register — an application for registration satisfy the registrar as to his interpretation of a provision — of any provision of the Constitution of the State of Louisiana or the Constitution of the United States.

The — the range of judgment that is open there to the registrar and the difficulty to the application — to the — to the applicant is such that I — I think that there would be a number of cases in which a complainant might feel that he was being denied his right to vote because of his race.

Whereas in — when there would be no possibility of proving a crime against the registrar.

As part of the Congress enactment, the Government’s position would be (Inaudible)

Lawrence E. Walsh:

Exactly, Mr. Justice Harlan.

(Voice Overlap) —

Audio Transcription for Oral Argument – January 19, 1960 (Part 2) in Hannah v. Larche

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Lawrence E. Walsh:

That — that is it.

Hugo L. Black:

Do you think that settles all our problems?

Lawrence E. Walsh:

I — I think [Laughs] it would — I think it would justify the reversal of this case because that was the (Voice Overlap) —

Hugo L. Black:

(Voice Overlap) on the ground that this is investigation and not an adjudication.

Lawrence E. Walsh:

That — yes.

Hugo L. Black:

(Voice Overlap) —

Lawrence E. Walsh:

Or not — and — and I go further and not even a preliminary step toward a — an adjudication.

It’s not a step in the chain of judgment as an indictment is in the chain of prosecution.

Charles E. Whittaker:

What’s the basis (Inaudible) and we might have those at some (Inaudible) this and that indictment.

Lawrence E. Walsh:

No.

The — I think, this case is — is in a sense — the — the procedures in this case are less hazardous to the point of view on which I am being questioned than those of an indictment where a man is under charges and as I — on the road to prosecution, he has no right to cross-examination.

He has no right to know what’s going on in the grand jury or what complaints are in the office of the U.S. Attorney, whereas here, these people are in no danger through — through this agency of prosecution at all.

This agency’s report will have no bearing — nothing that this agency says will, as a matter of official action, have any bearing on what element they have as to these people.

This — this Commission has no — no status to communicate officially with any prosecutor.

Its communications are to the President and to the Congress.

The Commission’s objects are — when — when read in — read together are clearly the — those of making a report on which legislation can be based.

So I — I think that the analogy of the indictment is — is a good one and again, like the reference to In re Groban, this case is — is — if there is any objection to this of sort of proceeding, it’s not subjection but a matter of an indictment.

Hugo L. Black:

Are you sure this can be analogized to be the exquisites of indictment by the grand jury living in the community where the case was investigated?

Lawrence E. Walsh:

I’m not sure that I follow the thrust, if Your Honors please.

Hugo L. Black:

Well, the grand jury of a historical agency that certain probability is based on the ground that — and they’re once friends and neighbors sit on a grand jury theoretically.

They investigate the situation in that community and they let them sit out the charges that will be proffered.

Lawrence E. Walsh:

Yes, sir.

Hugo L. Black:

And I — I suppose, you could hardly claim all the privileges that a grand jury have for investigating committee of any kind, couldn’t you?

Lawrence E. Walsh:

I — I think Your Honor that we could — could claim no greater duty to permit a cross-examination — independent cross-examination on a grand jury.

Hugo L. Black:

Well, that might follow, that might follow.

Lawrence E. Walsh:

Of course —

Hugo L. Black:

I don’t say it wouldn’t now, I’m just asking you how you could put them on the same thing —

Lawrence E. Walsh:

It seemed to me that —

Hugo L. Black:

— constitutionally speaking and historically speaking.

Lawrence E. Walsh:

I think in — in fact that these registrars are given a choice as to which agency they would rather have look into them.

Audio Transcription for Oral Argument – January 19, 1960 (Part 2) in Hannah v. Larche

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Lawrence E. Walsh:

This Civil Rights Commission or a grand jury, they would prefer to have the Civil Rights Commission do it.

Hugo L. Black:

Well, that Court wouldn’t have much to do then?

Lawrence E. Walsh:

Yes sir.

And I thought Your Honor might — well, to go back to the — to the statute and having mentioned the duties and the ultimate function of the Commission, I should like to point out that in the next section, the means to the end are set forth which are a full time staff, advisory committees and the use of public hearings with subpoenaing power.

That’s — that’s the entire range of their — and in connection with the hearings at page 60 of the record, it is Section 102 (a) in which Congress expressly sets forth the rules of procedure which is to govern the Commission.

And here, assuming arguendo that Greene does have some application, is the answer to the test which this Court put in Greene, as to whether or not there had been careful and deliberate consideration given to the question of what procedure should be followed and whether these can set forth expressly.

And in this —

Hugo L. Black:

At page 160 of the record.

Lawrence E. Walsh:

No, it’s 60, Your —

Hugo L. Black:

Page 60 —

Lawrence E. Walsh:

— Mr. Justice Black, page 60.

Now, let — it’s 102 (a).

And there — are set forth there 11 rules of — of procedure.

These are — an adaptation of the House of Representatives, so-called, “fair play” rules which govern their — their standing committees.

And the — the subdivisions which I think would interest the Court at this moment are the first which requires the Chairman to announce it in his opening statement, the subject for the hearing and then Subdivision (c) which deals with this precise question.

“Witnesses at the hearings may be accompanied by their own counsel for the purpose of advising them concerning their constitutional rights.”

And then Subdivision (e) which provides that the — if the Commission determines that evidence or testimony may tend to defame, degrade or incriminate, it shall receive such evidence in executive session and afford the person an opportunity to voluntarily appear as a witness and to receive and dispose of his request for additional subpoenas.

I don’t believe any of the other subdivisions bear on this — this problem.

Earl Warren:

I wonder if the Commission determined that it would defame, degrade or incriminate a person that it should have the right itself to — to say the testimony should be given in the executive session without regard to the wish of the witness?

Lawrence E. Walsh:

That — that question wasn’t raised, Your Honor, but the — the whole purpose of the executive session is to protect the person who’s — who’s subject to defamation.

Earl Warren:

I know but suppose he didn’t want to — suppose he didn’t want to testify in the executive sessions, suppose he said now, “I’m going to testify — I want to testify before the world in –“ and what — what effect would you give to this section?

Lawrence E. Walsh:

That there — there might be two — two persons in that position.

One, the complainant, who’s — who’s told that your testimony will probably defame registrar X, so you must testify in executive session.

If he refused to so testify, I think he would be guilty of contempt.

The other person would be the registrar himself.

Earl Warren:

That’s the one I’m thinking —

Lawrence E. Walsh:

I — I —

Earl Warren:

— not the other (Voice Overlap) —

Lawrence E. Walsh:

No.

Oh, the registrar — there’s no — no power to compel him to testify in the executive session.

Audio Transcription for Oral Argument – January 19, 1960 (Part 2) in Hannah v. Larche

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Lawrence E. Walsh:

It’s only the person who might defame the registrar —

Earl Warren:

I see.

Lawrence E. Walsh:

— can be compelled to testify in the executive session.

Earl Warren:

That’s required?

Lawrence E. Walsh:

Yes, sir.

It is.

Earl Warren:

Yes.

Hugo L. Black:

Where is the provision for (Voice Overlap) —

Lawrence E. Walsh:

It’s in —

Hugo L. Black:

— for contempt.

You said he could be punished for contempt?

Where is that provision?

Lawrence E. Walsh:

There’s no such — no — no such expressed provision.

Hugo L. Black:

So why do you say —

Lawrence E. Walsh:

Except that — the — that under the subpoenaing power, excuse me, Your Honor, on page 64, Subdivision (g) of Section 104 provided in case of contumacy or refusal to obey a subpoena, served for the District Court, may on application of the Attorney General, first order them to appear and then if they fail to appear, they are — may be punished for contempt by the District Court’s order.

The — the Commission itself has no contempt power.

Charles E. Whittaker:

Supposing you could see (Inaudible)

Lawrence E. Walsh:

I — seem to me, Your Honor, that would be covered by in a case of contumacy.

Hugo L. Black:

What is the punishment fixed?

Lawrence E. Walsh:

There’s no — no punishment fixed except that the punishment of the — of the — for the contempt of the court’s order.

Hugo L. Black:

So what — what is that?

What — within what limits?

Lawrence E. Walsh:

It’s the — the limits that apply to — to a United States District Court, I don’t believe there are any fixed limits.

Hugo L. Black:

There are not any fixed in this answer —

Lawrence E. Walsh:

None — none fixed in this answer.

Going from the statute now, the rules of the Commission — we’d came from at it, may begin on page 55 of the record.

But the first — first two sections don’t — the first section has no bearing on this, I don’t think.

And Section 2 and 56 really merely restates the statute.

Because these rules were designed to be given to each witness as he testifies, so 2, includes the statute.

And then the real implementing rules are found in Section 3 which begins on page 57.

Audio Transcription for Oral Argument – January 19, 1960 (Part 2) in Hannah v. Larche

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Lawrence E. Walsh:

Your Honors, would turn over to page 58 and look at Subdivision (i) you’ll find the regulation which is the heart of this controversy which provides that — interrogates any witnesses at hearings shall be conducted only by members of the Commission or by authorized staff personnel.

The — or the — the Commission’s theory in adopting this rule was that the statute, Section 102, adopted a complete code of procedures for it to follow.

That it was parallel to the fair play rules of the House of Representatives and that the interpretation which those — these rules had received where it be the — and must be the interpretation followed by the Commission.

And in addition, I might point out that Section 102, Subdivision (c) does have the express limitation attached to the right of counsel.

It says, “Witnesses at the hearings may be accompanied by their counsel and then for the purpose of advising them concerning their constitutional rights.”

An act of the Commission was an implied limitation of a requirement on the Commission to — to permit them to exercise any other function.

But the real support for the Commission’s position lies in the legislative history of the statute which is extensive, which is harmonious and which was complete, which was barely fought out so that there’s nothing here left to speculation as to whether Congress knew and deliberately made this choice or whether it didn’t.

Now, we have in our reply brief at the very end, an appendix which covers most of it, but unfortunately not all of it.

And if I may try the patience of the Court, I would like to try to put together in — in the coherent and chronological sequence.

The controversy over civil rights really began in — at least it came to a boil in 1956, the year before the Act was enacted.

And at that time, the — the House passed a civil rights act and on — and as it was at the brink of passage, Congressman Dies introduced a — an amendment which provided for the procedure to be followed by the Commission.

Now, the Dies Amendment which will figure through the subsequent history is found in our main brief at page 64.

Actually, it begins at the bottom of page 63, but the text is on page 64.

And a —

Felix Frankfurter:

It wasn’t —

Lawrence E. Walsh:

Just the next to the last page of the brief.

And on the left-hand page, Your Honor will see Subdivision (s) which provides that “If a person is adversely affected by evidence or testimony given in a public hearing, that person shall have the right to do these various things.”

And then if you look at Subdivision IV of (s), there is the expressed right to cross-examine in person or by counsel, such adverse witness.

That was the rider which was put into the bill in 1956.

That bill did not pass the Senate.

And so the following year, in 1957, again, the activity started to pass the civil rights bill.

In the Senate, a bill was introduced by Senator Dirksen, the minority with — cosponsored by over half of the minority members.

It was a major vehicle for the consideration of this subject.

That bill had this identical language of the Dies — Dies rider in it.

And Senate 83 which is Senator Dirksen’s Bill is found in an appendix to Judge Wisdom’s dissent at the very end of the record page 270.

I apologize for the scattered nature of this page — it actually begins on page 269 of the record.

And then if you turn over the page to page 270, you’ll find there again Subdivision (s), the identical provision that was in the Dies rider.

There were hearings held on this — on S.83 and in our reply brief at page 10.

Most — everything else is in the reply brief.

I’m sorry, but we got a few things.

Audio Transcription for Oral Argument – January 19, 1960 (Part 2) in Hannah v. Larche

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Lawrence E. Walsh:

In our reply brief at page 10 at the bottom of the page is Attorney General Brownell’s comment with respect to this procedure.

He is talking about S.83 before the Senate Judiciary Committee.

He said — now there’s one other addition to the S.83 that I would like to make special reference to.

And that is the provision for rules of procedure contained in Section 102 on pages 2, 10 of S.83.

“These rules of procedure are considerably more restrictive than those imposed on regular committees of the House and Senate.

There is much in them which clearly would be desirable.

We have not as yet had any experience with the use of rules such as those proposed here.

And we cannot predict the extent to which they might be used to obstruct the work of the Commission.”

Then he says how he favors such rules that — and then he goes on one paragraph further down.

“That I feel that the task to be given to this Commission is of such great public importance that it would be a mistake to make it the vehicle for experimenting with new rules which may have to be tested out under the courts.”

And this is only a two-year Commission.

And you might have to spend those two years studying the rules instead of getting at the facts.

Well Senate 83 kept those rules.

It was reported by its subcommittee to the main — to the full Judiciary Committee, but it never got any further because parallel with it, there started in the House, the bill which ultimately became law.

And that there were two bills, started by Congressman Celler and one by Congressman Keating, they — the Chairman and the minority — the senior minority member of the Judiciary Committee.

They merged as H.R.6127, and the procedure in that bill is the procedure that is now in the statute.

It — they — that — those bills from their inception had the so-called fair play rules in them, and in this respect, the Attorney General was called before the Senate, but before the House Judiciary Committee and asked about the Dies Amendment.

And his comment begins on — on this particular bill that ultimately became law, begins at the bottom page 11 of the reply brief.

The bill he’s talking about there is H. R. 627 of 1956 which is unfortunately, left out for the brief.

And again, he says the same thing that he did in the Senate.

That the — that — that the Dies rider was more restrictive and that he thought that the members of the Commission would be men of such stature that the Congress would not have to use this as a vehicle for its experimentation.

And the bill came out of Judiciary Committee with the fair play rules in it.

It was the — so that we had in the House, one bill with the fair play rules in it and we had in the Judiciary Committee of the Senate, the other bill with the Dies rules in it which we have expressly required independent cross-examination.

The House bill passed and — but not without — without complaint, because the — the — the minority report of the Judiciary Committee complained.

It says, “The rules provided in the bill are inadequate for more than one reason.

First, the House itself in the 84th Session — that’s in 1956, saw fit to –“ I’m reading from the reply brief the bottom of page 12, “saw fit to adopt a set of rules that are more detailed and stricter than those contained in the bill.”

That are protection of the rights of all were provided for more orderly procedure.

The membership of the House wisely imposed its own judgment on that of the Committee.

And then he says if — the — the — the minority report says that we should — there were complaints of the Dies rider was not included.

And then when it got on the floor, Congressman Keating and Congressman Celler both spoke in support of it.

Audio Transcription for Oral Argument – January 19, 1960 (Part 2) in Hannah v. Larche

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Lawrence E. Walsh:

Their comments are on pages 13 and 14 in the reply brief.

And at the bottom of page 13, you’ll see where Congressman Celler says, “The rules of procedure for this Commission are the same as those for the committees of that House.”

And then on page 14 at the top, Congressman Keating says, “Investigations by the Commission will be bound by the rules of procedure, modeled after those applicable congressional committees.”

Then the opponents took up.

And at the bottom of page 15, Congressman Kilday attacked the bill in this fashion.

“The bill provides that witnesses may be accompanied by counsel, for what purpose?

For the purpose of advising them concerning their constitutional rights, that is all.

Even though the Commission or its own counsel develops only a portion of the transaction and that adverse to the witness, his lawyer cannot ask a single question to develop the remainder of the transaction or the — or the portions favorable to it.”

And then in the Senate, after the House — the House passed its bill, for these procedures.

And then in the Senate, the Senate took up the House bill instead of its own.

And it — the bill was then attacked Senator Talmadge on page 18 of the reply brief and in which he — he said that, “No provision is made for persons adversely affected by testimony taken by the Commission to be present when they are accused or later to confront and cross-examine their accusers.”

And then Senator Stennis on page 19, said, he has no — speaking of the witness or of the person defamed.

He said, “He has no right of confrontation or cross-examination and his request to subpoenaing witnesses on his behalf falls within the arbitrary discretion of the Commission.”

So, Your Honors, it seemed to the Commission that first of all, the statute told them what to do.

They had to allow a man to have counsel to advise him as to his constitutional rights.

The — that subdivision of the statute limited the usefulness of counsels so far as Congress required it and that Congress in its debates had indicated that that it thought the Commission was being authorized to proceed — oh, in the fashion which it now is.

I might say there’s nothing in the record of the — of the passage of this bill to the contrary.

May I ask you a question?

Lawrence E. Walsh:

Yes, sir.

Suppose one was to agree to your view, Congress intended (Inaudible) and institute this response say, it would be.

Lawrence E. Walsh:

Yes, sir.

Do we reach the constitutional question here or do we send back to the District Court to reach it?

Lawrence E. Walsh:

But, Your Honor — Mr. Justice Harlan, in view of the limited life of this Commission and the fact that it — although it’s had one extension of two years, it’s now, well, into that — those two years.

It would be the hope of the Commission that this Court would — would reach it here.

This is a three-judge court, isn’t it?

Lawrence E. Walsh:

It’s a three-judge court.

And never got to this — never — the Court of Appeals doesn’t involve that statute.

Lawrence E. Walsh:

The Court of Appeals is — is not involved in — in the constitutionality of the statute.

That — that wasn’t raised in the Slawson case.

Charles E. Whittaker:

To this judge at least (Voice Overlap) —

Audio Transcription for Oral Argument – January 19, 1960 (Part 2) in Hannah v. Larche

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Lawrence E. Walsh:

Yes, that’s right.

Charles E. Whittaker:

And the one which as to 550.

Lawrence E. Walsh:

550 — but in 550, there was no challenge to the constitutionality of the statute.

They merely said that the Commission didn’t follow the mandate of the statute.

Charles E. Whittaker:

As I understand you say that there were three under these rules.

No benefit from the allowance of counsel to the witness, would he not be able to advise him (Inaudible) obtain the question?

Lawrence E. Walsh:

Yes he would, Mr. Justice Whittaker.

As a matter of fact, the Commission practices — they sit right next to each other and counsel can whisper in the witness’ ear while he testifies.

So there’s no — no problem in that regard.

Charles E. Whittaker:

A valuable of the lawyer under certain rules, the advisement of his constitutional rights in the part of judge, you say?

Lawrence E. Walsh:

Your — Your Honor, I think it is.

In fact, I think, Your Honors as — as you view —

Hugo L. Black:

I presume —

Lawrence E. Walsh:

Yes.

Hugo L. Black:

— he’s going to get it on the basis of value to be more valuable if his attorney could cross-examine the witnesses then, would it not?

As far as value is concerned.

Lawrence E. Walsh:

Actually, Your Honor I don’t — don’t mean to be (Inaudible).

If my — my guess would be that if cross-examination were allowed here, this survey which the Commission has conducted, would be personalized and would end up in a cat and dog fight about individual registrars instead of —

Hugo L. Black:

(Voice Overlap) that might true.

Lawrence E. Walsh:

— quoting grievances.

Hugo L. Black:

The question — the question I asked you was you testified that the derived value after all you — have said it to your ear and whisper to you — you’re — about your right.

Lawrence E. Walsh:

Yes, sir.

Hugo L. Black:

It’s more valuable, of course, wouldn’t it if he had a lawyer there to represent him, cross examine the witness, what is right or wrong.

I don’t suppose you deny that.

Lawrence E. Walsh:

Well — well, Mr. Justice Black, I — I — let me say this.

I think there are two sides to it and I — and if I were — if I were the registrar’s lawyer and I was interested in the registrar, not making an issue or public issue on whether we could have segregation or not.

I think that I would prefer to have the Commission go ahead and take its — at least the Commission is taking this testimony of — of 25 witnesses in the morning.

It’s just a rapid fire succession of their troubles.

And it’s not making findings as to individual registrars and it — the — to — to have a lawyer come into it to cross-examine each of these witnesses, develop the pros and cons as to individual registrars.

I’m not sure that that’s the registrar’s interest, when this Commission has no interest in prosecuting the registrar.

Audio Transcription for Oral Argument – January 19, 1960 (Part 2) in Hannah v. Larche

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Hugo L. Black:

Well, suppose the registrar thought he needed a lawyer?

Lawrence E. Walsh:

Well —

Hugo L. Black:

Maybe he had — would have a different view.

Lawrence E. Walsh:

He might have a different view.

Hugo L. Black:

Assuming that — all — all I was asking was, assuming that whether it — whether he’s got a right to one or not, can you deny that ordinary human being in this country would think he’s better, if he had a lawyer to sit there and cross examine the witnesses sets up and again.

Lawrence E. Walsh:

Yes, Mr. Justice.

I — I agree with you that 9 out of 10 would, yes.

Charles E. Whittaker:

And you suppose that every person who gain the trust needed by a grand jury and expect to be indicted with the right to go in there with his lawyer and cross examine the witnesses, too?

Lawrence E. Walsh:

There — I’m sure they would, because there, the — there’s no — no danger of pinning the limelight on the individual, because it’s already pinned on him.

Hugo L. Black:

Again — again I suggest that there’s quite a difference, whatever one may decide about this case in a grand jury investigation conducted as his — his character has been and for the purpose for which it was created, an investigation by a committee from somewhere or a commission.

Lawrence E. Walsh:

Your — Your Honor I — I respectfully — the difference — I might just address one — one comment to that for that point that many — many administrative agencies are in the position to cooperate the same way beside grand juries.

That the — for example, there — one of the cases decided by Mr. Justice Minton, when he was on the Seventh Circuit was (Inaudible) against Bair, which was referred to in our brief at page 38 — excuse me.

Earl Warren:

Well, go ahead.

Finish your statement in —

Lawrence E. Walsh:

Thank you.

He — he — there the O.P.A. Administrator, through his agent was investigating a — a misuse of prices by throwing in the customers or the people who — who bought.

And they came in with their counsel.

And the administrator told counsel to get out.

Told the reporter to get out and he went ahead in private and examined these persons and that was upheld because before any formal action was taken, they would all have their chances to — to cross examine and be advised by counsel.

So it’s not just grand juries or — or forcing Groban and — Anonymous against Baker we had to say (Voice Overlap) —

Hugo L. Black:

Do we have to rely on Groban?

Lawrence E. Walsh:

Well, I — I thought maybe I’d satisfy the dissent in Groban, Mr. Justice.

Earl Warren:

Yes.

We’ll recess now.