Hannah v. Larche – Oral Argument – January 19, 1960 (Part 2)

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 18, 1960 in Hannah v. Larche

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W. M. Shaw:

Mr. Chief Justice, may it please the Court.

Earl Warren:

You may proceed, Mr. Lassiter.

W. M. Shaw:

Shaw, if it please the Court.

Earl Warren:

Oh, Mr. Shaw.

W. M. Shaw:

Our time is —

Earl Warren:

Yes.

W. M. Shaw:

— still run out.

Earl Warren:

Yes.

W. M. Shaw:

(Voice Overlap) —

Earl Warren:

All right.

W. M. Shaw:

I had not intended to and I’m reluctant to go outside of the record in this case, but a statement by the Deputy Attorney General has caused me to feel that I must do so in order to put this case in its proper context and also to defend myself.

I might say that I am the general counsel for the joint legislative committee and was referred to as one who advised registrars to discriminate against Negroes in the — when they attempted to register the vote.

I might say that that is just not correct and I feel that the Deputy Attorney General was misinformed, he’s acting erroneously.

To properly explain what had happened in Louisiana, particularly in connection with voting and let’s say this is not directly in the record, but I think the Court needs to know it, to understand what have been going on.

We have laws in Louisiana and have — have number of other States which require literacy qualifications, also, a certain amount of intelligence qualification.

Those laws, for many years, were not enforced.

The same is true and most of the other States that have those law, they are approximately 15, as I recall.

Several years back, we — we the members of my committee, in discussion with me, asked me to look into the situation on voter — voting laws and recommend — make recommendations to them.

As results of the studies which I have made, we have instituted a program to enforce our laws strictly.

That means to white people and as well as to colored people.

Our efforts have not been successful completely.

We — there have been cases we know and we have freely admitted that there are many parishes in which the colored people are discriminated against.

Also, there are many parishes in which these laws are enforced uniformly.

And the Court probably can recall the instances which happened last summer in the legislature of our State in which the Governor of our State suffered a mental and moral breakdown.

And that was brought on by his attempt to change our voter qualification laws.

And his reasons for doing so were because we were removing from the roll, many, I think, the term (Inaudible) all white people,” who were the backbones of his — his political organization.

And our reasoning on doing this, carrying out this program is this, that we have been plagued in Louisiana for many years, like demagoguery and our political opposite.

And we determined that the only way that we could safely protect ourselves against that is by a rigid enforcement of our voter qualification law.

Charles E. Whittaker:

What do you mean by the saying that you were removing from those (Inaudible) white people?

W. M. Shaw:

We have removed hundreds, if not thousands.

Audio Transcription for Oral Argument – January 18, 1960 in Hannah v. Larche

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W. M. Shaw:

I say we, not I personally, but people who have consulted with our committee and got an advice, have challenged the legality of the registration of white people in many places.

As a matter fact, it resulted in one lawsuit which will eventually get to this Court in the Parish of St. Landry.

That happens to be one of the French-speaking parishes and there are many illiterate white people in that parish who do not speak or read English.

It’s going to the attempt that was made — started out, I think, they removed several hundred of them, before the registrar just tried to refuse to remove any more because of political exigency at the time.

And I’m saying this in order to remove what I think is an unfair prejudice that surrounds this case.

Our program that we have been enforcing in our State is aimed at improving our Government by enforcing laws which on the book and which have been upheld by this Court in an effect upheld recently in North Carolina when the Court refused certiorari in the case from North Carolina on their literacy qualification.

That is all that I want to say in regard to the background, but if there are any questions, I’d be delighted to answer them because I think haven’t got a personal knowledge of what’s happened as any person in our State.

Charles E. Whittaker:

(Inaudible)

W. M. Shaw:

I’m the general counsel for the Joint Legislative Committee.

I’m also been a special Assistant Attorney General to two successive Attorney Generals, Mr. LeBlanc, who was the previous Attorney General and in certain instances, Mr. Gremillion.

Earl Warren:

Is there any reason why those registrars should — should not have told the Commission exactly what you have told us here today?

W. M. Shaw:

No, there is no reason why they shouldn’t.

But of course, the Commission was not interested in that faith and thing.

Earl Warren:

How do you know?

They haven’t — they haven’t asked anything about it.

W. M. Shaw:

Well, the purpose of the investigations, Mr. Chief Justice, as I understand it, was to investigate certain sworn allegations.

Those sworn complaints had to be if it followed the course of this Act based upon a denial due to race or religion.

And what I’m saying about — what I’ve been explaining is that in the instances in which we run into trouble in our own State had been — when we did not discriminate.

The fact that we did not, it caused us as people in yield in public life had great deal of trouble in our own State.

Earl Warren:

Well, that — wouldn’t that have counteracted the — the affidavits or whatever test (Voice overlap) —

W. M. Shaw:

That is — it would have been — certainly would have intended to counteract that and we would —

Earl Warren:

Why — why —

W. M. Shaw:

— we were looking forward to the opportunity to — to do.

Earl Warren:

Why wouldn’t they — why would they want to testify this such thing?

W. M. Shaw:

I’m sure they would want to testify to that.

Earl Warren:

Why didn’t they?

W. M. Shaw:

Well, because they were summoned, subpoenaed to appear and testify on certain complaints made against them which they did not know the content.

Now, they — we have no objection to a hearing, in fact, we welcome the hearing provided we are given the reasonable rights to protect ourselves.

Charles E. Whittaker:

That includes such cross-examination?

That’s what —

Audio Transcription for Oral Argument – January 18, 1960 in Hannah v. Larche

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W. M. Shaw:

First of all, we want to know in advance of the hearing what we are charged with, so that we can be prepared to present our side when we go there.

Charles E. Whittaker:

Mr. Shaw, are you charged with anything in your concept under this law or is it just an investigation?

W. M. Shaw:

We are charged with Commission of crimes and also, the acts which give rise to damage — suits for damages because the — the complaint required by the Act, Mr. Justice Whittaker, is a complaint that you have been discriminated against someone on account of their race, and there is no way that you can discriminate against someone on account of their race, for example, without having an intent to violate these — these civil rights statutes which the Court is familiar with in which I’ll be glad to — to read to you in my brief at — the original Civil Rights Act of 1871 which is — provides statutes 1979 42 U.S.C. 1983 also the conspiracy angle of that.

I might add further that there’s another face of that which bears upon what this Commission would have to do, I’d like to read you if the Court ask this — this section which is Section 6 of the old Civil Rights Act 42 U.S.C. 1986, “Every person who, having knowledge that any of the wrong conspired to be done” and mentioned in Section 1985 of this title, “or about to be committed in having power to prevent or aid in preventing the Commission of the same, neglect or refuses to do so, shall be liable to the party injured or his legal representative for all damages.”

And this Commission investigates and finds that registrars are — to their satisfaction, that registrars are — are doing something in violation of this Act, it becomes their duty to assist in the preventing of that and bringing little people to justice under the statutes of the United States.

Earl Warren:

To bring them to justice you say?

W. M. Shaw:

Yes, sir.

Earl Warren:

What’s the language that says that?

W. M. Shaw:

May I read you the — the sentence, “Every person too had —

Earl Warren:

(Voice Overlap) this Commission here, this Commission —

W. M. Shaw:

This applies to anyone.

Earl Warren:

All right.

W. M. Shaw:

Now, but — and this would include this Commission.

It doesn’t — it’s not a feature of this Commission’s Act, this is a general statute which required anyone knowing about the wrongful conduct in this respect to take steps to prevent it.

Otherwise, they become civilly liable to the party injured for failure to do so.

Earl Warren:

Could you mean that if they didn’t — if the Commission knew of these things and didn’t do anything —

W. M. Shaw:

Knew that —

Earl Warren:

— the — the Commission would be liable?

W. M. Shaw:

The individual would be civilly liable.

Earl Warren:

The — the members of the Commission would be liable?

W. M. Shaw:

Right.

In my — in my construction of this Act which, as far as I knew it, not been construed, it — it’s been practically no jurisprudence with regard to it.

That is 42 U.S.C. 1986.

It was an act to require people to assist federal officers and others who are trying to enforce the old Civil Rights Act.

It’s been on the books and carried right down to the history of our country since the civil war.

Felix Frankfurter:

You mean of provision which — there’s another provision which specifically authorizes a $5000 suit.

W. M. Shaw:

That is correct.

That is the — that is the criminal feature of it, Mr. Justice Frankfurter, which is 18 U.S.C. 241.

Felix Frankfurter:

I’m talking about civil damage of $5000.

Any — anybody who is prevented from voting, when he has the right to vote and sued the person responsible for the depravation to the (Voice overlap) —

Audio Transcription for Oral Argument – January 18, 1960 in Hannah v. Larche

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W. M. Shaw:

I wasn’t aware that there was any limit on the amount of liability in that case.

I thought that he could get whatever damages he would — he could prove.

Felix Frankfurter:

I have in mind that — that Section (Inaudible)

W. M. Shaw:

Would that not be Section —

Felix Frankfurter:

Any provision which came before this Court, we have to pass on that, we will do that.

W. M. Shaw:

I believe that’s — preceding Sections 2, it’s the old Section of the Civil Rights Act.

Felix Frankfurter:

Lane against Wilson, 307.

W. M. Shaw:

There are also criminal faces of this which are found under the 18 U.S.C. the Criminal Code 241.

And therefore, when the complaint has made against a registrar, an individual, here is denying someone their privilege of voting or right of voting, a challenge somewhat the use of the word “right” although it’s in our — or the Fifteenth Amendment in — elsewhere, when he deny — when he is charged with denying that particular legal remedy, legal right or privilege because of race or color.

You automatically saying he has done this thing intentionally which the willful feature is automatically included within it, that is, for the intent when you do it on that basis.

Earl Warren:

Why do you challenge the word “right”?

W. M. Shaw:

Because the — because words have different meaning but to me, voting is a privilege.

It’s the highest privilege of the citizenship in — in a representative type of democracy such as we have.

A right —

Earl Warren:

If he qualifies, doesn’t he have a right?

W. M. Shaw:

Well, if — if it were a right, it would — the State could not deny it to anyone.

If it’s a privilege, the State can.

Thus, it — if it’s in all States deny for certain people.

All States that I know of have certain age qualifications which in effect deny — denies voting rights if you wish to call it a theorem.

And also had — they denied those rights to the people who haven’t resided there for a period of time.

The right to set these qualifications by the Constitution is reserved to the States.

Hugo L. Black:

I thought it had been held by this Court that under the Fifteenth Amendment, every person has a right not to be denied the right, the (Voice overlap) —

W. M. Shaw:

That is — that is true — that is quite true, Your Honor.

That is a right which is different from the so-called right to vote.

You have a right not to be denied that.

Hugo L. Black:

On account on race.

W. M. Shaw:

That’s right.

That is correct.

But the — the voting — the franchise itself is a privilege, as I say it, not a right.

But the — the protection against having being deprived of it is a right.

Audio Transcription for Oral Argument – January 18, 1960 in Hannah v. Larche

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W. M. Shaw:

Now, to get back to the case itself, which, I think — the Court has illuminated to a great extent by its question.

But in the 550, these private individuals who I’m representing, we base our case on two things only, the two things that the lower court reached its decision on.

First, that Congress did not authorize explicitly the rules adopted by the Commission which deprive us of confrontation, cross-examination and so forth, our ordinary rights of due process in which we — what we consider to be hearing of this type.

Hugo L. Black:

May ask, it defies you were representing are merely witnesses or — or are they registrars?

W. M. Shaw:

One was a former registrar, Mr. (Inaudible), who would had service term and was — and resigned and retired and I’m sure his — although I don’t know it, I’m sure the complaint made against him was probably in his capacity as a registrar prior to his retirement which was six months or so before the hearing.

The others were private individuals, some of whom had challenged voters in certain parishes of the State which were approximately 200 or more miles from the scene of the investigation.

Charles E. Whittaker:

(Inaudible)

W. M. Shaw:

No.

We have a statute, Mr. Justice Whittaker, which provide that any two citizens may go into a registrar’s office that is who — are residents and voters of the parish in which they — they are acting.

And if they find the registration of any person or persons to be illegal, not in accordance with law, they can ensued by affidavit, challenge his right to remain on the roll.

And then the law provides that the person challenged may come back in and bring with him three registered voters from the same parish who make counter affidavit which will automatically keep him on the roll.

Then, if the person’s challenging wish to go further, they go to court because that sets up a situation of someone having made false affidavits.

I’m starting to mean it and — and it also should be referred to the District Attorney or other proper enforcement officers in the parish.

Hugo L. Black:

These individuals that you represent who are not registrars?

W. M. Shaw:

No.

They are — except for one, who was a former registrar.

Charles E. Whittaker:

Who was a former.

W. M. Shaw:

Yes.

Charles E. Whittaker:

Where charges made against them, affidavit is that (Voice Overlap) —

W. M. Shaw:

According to the information we had, yes.

That they had —

Earl Warren:

Does the record show that they were?

W. M. Shaw:

The record does not show that because all we have is statements made to give a time sequence and this is a little more clearly.

What happened was that in the early spring, I believe in March of 1959, Colonel Rosenfeld, the Chief Investigator for the Commission came to Louisiana and conducted certain investigations.

At this investigation, the Attorney General Gremillion was present, I was present and two of the registrars involved in this case were questioned.

We also had conferences open between counsels at the time and Colonel Rosenfeld announced and appears that they had complaints.

He listed a number of complaints from each parish.

He wanted to see certain records.

Mr. Gremillion advised the registrars against, showing them offhand.

But at my request, I think the testimony at this hearing were short.

Audio Transcription for Oral Argument – January 18, 1960 in Hannah v. Larche

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W. M. Shaw:

We agree to give him the records which he wanted to see provided he would show us the complaints or let us see or agree to show as the complaints made against this registrar.

Earl Warren:

What right did you have if the law prevents it to say the — that the Commission could or could not under certain circumstances see the records —

W. M. Shaw:

Well —

Earl Warren:

— if you’re — if you’re representing private individuals?

W. M. Shaw:

I’ll say — I’ll say this, as a — as a registered voter of the State, any registered voter of the State has the right to go and see the record.

That’s — they’re public record but they are — the right had given him any rights to vote to the State.

As a register voter of the State, I would agree to go in and get those records out my — myself, examine and let him examine with me which I think would be permissible under our law.

He himself was notified.

All he had to do is to get a registered voter to do that if he wanted to do it.

He was also notified that he wanted to take photographs of the record.

All he had to do is get 25 registered voters to sign a petition.

Earl Warren:

But you would not permit an FBI agent of the United States Government in investigating matters of this kind to see the records.

W. M. Shaw:

It depends on his status.

Of course, if he is a registered voter of the State —

Earl Warren:

No — no he goes just as a — just —

W. M. Shaw:

If he — he’s a nonresident of the State —

Earl Warren:

Yes.

W. M. Shaw:

— in Washington Parish, that situation rose and he was — they were permitted to see it.

Now, I dealt with somewhat with the Attorney General on his interpretation of the law.

I think if the registrar has the authority to show him if — if the registrar, so does I, they don’t make any compulsion on the registrar afford to do it.

I recommended to our registrar that the — our record is perfectly open.

We had no objection to him saying to keep the instances that our sight would registrars and other parishes, registrars whom I do not personally represent.

But —

Felix Frankfurter:

Has there been — has there had been — no — no.

Earl Warren:

Well, I was going to say, your — your understanding of the law is then that the registrar has the discretion to show the records to whom he wants.

W. M. Shaw:

I say this.

The registrar must show under any registered voter of the State.

Earl Warren:

Yes.

And may show in (Voice Overlap) —

W. M. Shaw:

But may show in anyone else that he wishes — in my opinion that was the law.

Audio Transcription for Oral Argument – January 18, 1960 in Hannah v. Larche

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Earl Warren:

And may withhold them from anyone — anyone that he desires to hold that.

W. M. Shaw:

Other than a registered voter of the State.

Earl Warren:

Yes, yes.

W. M. Shaw:

And of course, there is so many of those that no real problem.

I mean, if anyone who wanting to see a record, he can get it through one of our — in any parish of the State, you can find many people who would oppose what the — somebody’s registrars are accused of doing here so that they’d be anxious to — to go in and show the FBI the record if they want.

So far as Claiborne Parish is concern, I can’t speak for that.

I represent the — our records are open.

Anytime you want to come in, we would be happy to.

We also would like the same privilege with regard to accusations made against us.

Hugo L. Black:

What is the total vote in that parish?

W. M. Shaw:

We have around 5000.

Hugo L. Black:

How is it divided?

W. M. Shaw:

We have very — about 30 — 20 or 30 colored votes and the rest are — are white and the —

Hugo L. Black:

What’s the population?

W. M. Shaw:

Population is around 20,000, 25,000 stiff to 2% colored and the — the question of disparity has come up and it’s — of course, we recognize this disparity.

I’ll say this had been more white people, former white people turn down for registration who had been colored.

Earl Warren:

If there are 20 — 20 Negroes registered and the law requires him to have 25 to be able to let someone make a copy of the record, where do you suppose he get the 25?

W. M. Shaw:

Well, the 25 do not have to be from the parish.

But the — as far as our records are concern, it’s been open.

We haven’t tried to keep anyone out.

The — the FBI been around not — not only — been — not only been waiting for them to see our record but I furnish them much of the material which we put out through our Joint Legislative Committee.

I mention to say the Attorney General has in — in his files, most of our publication and I would certain like the Court to see those because instead of advocating discrimination, we actually advocate the opposite.

Earl Warren:

Well, what do you say the percentage of whites and Negroes were?

W. M. Shaw:

52% colored and 48% white according to the last census.

It changed considerably since then but we are — what was formerly a very rural area now going almost exclusively to trees.

Planting a pine tree and therefore, we’ve lost a great many of our colored citizens.

Charles E. Whittaker:

Where is the (Inaudible)

W. M. Shaw:

It’s in extreme Northern Louisiana, we — boarder of Arkansas.

Charles E. Whittaker:

(Inaudible)

W. M. Shaw:

What is that?

Audio Transcription for Oral Argument – January 18, 1960 in Hannah v. Larche

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Charles E. Whittaker:

Shreveport?

W. M. Shaw:

Yes, across Shreveport.

Charles E. Whittaker:

I understand, you lineup to the Arkansas line?

W. M. Shaw:

We lineup to the Arkansas line but east of Shreveport, below El Dorado, if you are familiar where — that’s in the location of El Dorado.

Felix Frankfurter:

Mr. Shaw, the availability or accessibility to record, registrar record in Louisiana either by the Commission or anybody acting before them or the FBI on its own, has that gone into litigation?

Is that given rise to litigation?

W. M. Shaw:

Not to my knowledge.

The — except for this particular litigation which we are now concern.

Felix Frankfurter:

It’s not in this litigation, isn’t it?

W. M. Shaw:

Only in the record.

It was urged as a — in the — by the State or rather by the registrars that they were being required to do something illegal.

Felix Frankfurter:

But there is no — the judgment or the complaint of the plaintiffs here do not raise any question of the Government finding counterclaims.

W. M. Shaw:

No.

Felix Frankfurter:

And to the production of these records, isn’t it?

W. M. Shaw:

I don’t really believe there is ever — encounter any serious —

Felix Frankfurter:

I don’t know — I don’t know whether they have encounter or not, what I want to know if it’s in litigation?

W. M. Shaw:

Not to my knowledge, Mr. Justice.

Earl Warren:

Well, the Attorney General who advised all of the registrars, did he not, not to permit the FBI to — to C & E.

W. M. Shaw:

That’s correct.

And I — as I say, I — I disagree with him after the — the interpretation of the law.

I think that he is doing the same thing in that case that we are here accusing the Commission on doing.

Felix Frankfurter:

What I want to know is whether that refusal or that advice of the Attorney General had been made the basis of an action by any agency of the Government of the United States?

W. M. Shaw:

Not — I do not believe so, Mr. Justice — Mr. Justice Frankfurter.

Hugo L. Black:

Perhaps it’s not relevant as you started out by saying that you had been making — changed (Inaudible) to enforce your law with reference to literacy.

W. M. Shaw:

No.

Hugo L. Black:

Do you say now there were — how many voters in your parish are colored?

W. M. Shaw:

20, I believe, something I —

Hugo L. Black:

I mean it wasn’t before this new —

W. M. Shaw:

There were approximately 10 or — well one, nine or none.

Hugo L. Black:

Well, I have —

Audio Transcription for Oral Argument – January 18, 1960 in Hannah v. Larche

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W. M. Shaw:

And so —

Hugo L. Black:

— is this new program that you had changed the number?

W. M. Shaw:

Oh, yes.

They’ve increased under this program because — in a matter of fact, we have a system of registration in our State called “permanent registration”.

Once you register, you never have to reregister in — in many parishes.

It’s optional by the parish and we’ve had it in our parish.

You never have to reregister provided you vote periodically and the registration in our parish prior to the institution of our program with much larger than it is now.

We have first lost population and secondly, there had been a good many people who have failed to exercise their rights, who have been unable to get back on roll when they attempted to try and register.

We say what we are running into is frankly from our standpoint of the program that we have — is our position, not only from the Federal Government but from the local authorities, people in politics, local, who want to have a full registration as possible without regard to our laws.

But — but the very point that was raised by Mr. Chief Justice Warren about the Attorney General’s opinion, what the Attorney General did in that chase is — is this.

The law said that — that you must permit anyone who is a registered voter to see these records.

It does not say you have to keep anyone else from saying.

That’s the reason why I say the registrar has the discretion.

In — in the instant case — but this — what the Civil Rights Act did, it said that the Commission had to observe certain rule.

It didn’t say they couldn’t adopt those rules.

I certainly think that Congress intended for the Commission to adopt supplementary rules.

There are many things that — that the few rules that they had in the Act did not cover.

Anyone who has conducted investigations or legislative otherwise could see that.

I think it was — that — if we consider congressional intent in particular, that intent is set forth in the Administrative Procedure Act.

And the — and I’m not advocating that we apply the Administrative Procedure Act here except for the purpose of using it as a measure of what the congressional intent is.

Charles E. Whittaker:

Mr. Shaw, do you (Inaudible)?

W. M. Shaw:

I say this.

It depends on how you define the term “adjudicatory”, Mr. Justice Whittaker.

If you use the term “adjudicatory” as it’s used in the Administrative Procedure Act, then it does have adjudicatory function.

Charles E. Whittaker:

(Inaudible)

W. M. Shaw:

Well, the — let me — that again is — the words that you use are somewhat difficult for me to put my finger on.

Charles E. Whittaker:

(Inaudible)

W. M. Shaw:

May I read you the definition from the Administrative Procedure Act?

I think it’s important because the Administrative Procedure Act uses the term “adjudicatory” as being the measure of when this ordinary function of due process or to be accorded when they are not and what the Commission in effect has done in this case is say the Administrative Procedure Act is not applicable.

Yet, they have adopted the very test that the Administrative Procedure Act gives, but they have used a different definition for the word “adjudicate”.

Audio Transcription for Oral Argument – January 18, 1960 in Hannah v. Larche

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W. M. Shaw:

And the word “adjudicate” as defined by the Administrative Procedure Act, can be found on page 4 of my brief, in Section 2 of the Act 5 U.S.C. 1001, (d) — Section (d) order and adjudication.

Order means the whole or any part of the final disposition whether affirmative, negative, injunctive or declaratory in form of any agency, in any matter other than rule making but including licensing.

Adjudication means the agency process for the formulation of an order.

Charles E. Whittaker:

(Inaudible)

W. M. Shaw:

In the sense that — that a declaration as an order, yes.

Charles E. Whittaker:

Of that provision?

W. M. Shaw:

Yes.

You see, this Act in defining order says order means the whole or any part of the final disposition whether affirmative, negative, injunctive or declaratory.

Charles E. Whittaker:

(Inaudible) is injunctive order?

W. M. Shaw:

No.

Charles E. Whittaker:

Declaratory order?

W. M. Shaw:

Yes.

Charles E. Whittaker:

How?

What —

W. M. Shaw:

By way of a report.

Matter of fact, this Commission is required to make reports not only to Congress, but to the President.

Charles E. Whittaker:

Is that a — is that declaratory (Inaudible)?

W. M. Shaw:

If they make a report which is declaratory in form saying that John Jones had discriminated in — in Claiborne Parish against a certain registrant, in — in recommending to the President that he uses executive powers to bring about the prosecution of that part, then I say that that is an order within the meaning of Administrative Procedure Act.

Let me go further, Mr. Justice Whittaker.

The test of due process, as I see it, is not to be bound down by this test of adjudication.

I think due process is a — is a term that has been defined — explained by Mr. Justice Frankfurter in the Joint Anti-Fascist Committee cases.

It is a living principle.

It’s something that cannot be bound down by any particular formula.

It’s something we have to examine each particular case and see whether or not it fits due process.

If you will recall in the Joint Anti-Fascist case, there was no sanction applied.

The Attorney General could not apply any sanctions.

All he did was make a declaration that certain organizations, communist fronts or something of that type.

In the Court itself, this Court pointed out, that there was — was no sanction involved in the matter except there was a matter of declaring indirectly, indirectly the effect of making that declaration would hurt this particular organization just as indirectly, the effect of a declaration by this Commission would hurt these people who were called before it.

As I read the cases of this Court, the Joint Anti-Fascist case, Peters versus Hobby, in Greene versus McElroy or a series of cases which set forth due process, as I understand it, which must be accorded in administrative hearing and administrative proceedings where agencies of the Federal Government are concern.

And that in each one of those cases, the only question involved was whether or not Congress or the President or the particular creating agency explicitly — gave the explicit authority to adopt these rules.

Audio Transcription for Oral Argument – January 18, 1960 in Hannah v. Larche

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W. M. Shaw:

I would like to point out to — to this Court that in the case of Groban and in the case of Anonymous, that question was not even involve.

In case of Groban, we have 1900 statute of Ohio which had been in effect for many years and recognized explicitly giving the authority to do this to the Fire Marshal.

That was not questioned.

Charles E. Whittaker:

(Inaudible) to Louisiana.

W. M. Shaw:

I think we have.

In the case of Anonymous, although the statute was not particularly clear on me, there had been many judicial decisions.

And of course, the state court’s interpretation of its own law is binding on the federal court.

So the state courts had already found out that this authority was granted to the question of explicit authorization didn’t arise, neither one of those cases —

Mr. Shaw —

W. M. Shaw:

— to indicate —

Excuse me, go ahead, finish your — finish your —

W. M. Shaw:

But in the case of the Joint Anti-Fascist Committee, the case of Peters versus Hobby, the case of Greene versus McElroy, that was the only question and that is the only question in which the lower court decided this case.

Supposing your complaining witness comes into your office, District Attorney X complain against Mr. X, you take an affidavit from the complaining witness proceed to investigate and you proprietary taking case for the grand jury and the lawyer for the complaining witness comes in — a lawyer for the perspective defendant comes in, and says “I would like to see all of the papers that you got in your file, Mr. — Mr. Attorney.”

Would you give it to him?

W. M. Shaw:

We did that in the case of — in Clinton case which came to this Court.

Is that the normal procedure?

W. M. Shaw:

We would have — right.

But I might say this that the grand jury proceedings are constitutionally based, grand jury proceedings were recognized as the essential function of Anglo-Saxon jurisprudence (Inaudible) was created.

Hugo L. Black:

Supposing you proceed by information rather than the grand jury, would that make it (Voice overlap) —

W. M. Shaw:

Well, even that is a — a long established and well-recognized.

The question of explicit authority doesn’t arise in those cases, the — because that has already been settled by innumerable explicit laws in — in cases in the past.

And it’s historically based — based in our Constitution as well as in our whole —

William J. Brennan, Jr.:

Isn’t you’re talking about a broad concept of due process —

W. M. Shaw:

Right.

William J. Brennan, Jr.:

— that you’re relying on therefore, these analogies had some pertinence to it.

W. M. Shaw:

They certainly do.

But I say this it had — this Commission had been set up in the Constitution of the United States or had it been imported as a legal device from England at the time of the formation of our country.

It would enjoy a different status from an administrative tribunal created by Congress in recent years.

Earl Warren:

But hasn’t the — hasn’t Congress been doing this since 1890 something?

W. M. Shaw:

Not to my knowledge and I don’t know any particular.

Audio Transcription for Oral Argument – January 18, 1960 in Hannah v. Larche

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W. M. Shaw:

They’ve been doing it at congressional committees but not as executive agencies and in this case, they set up an executive agency and I think that distinguishes this from many of the other cases.

Earl Warren:

You — you feel then that Congress could do this but this Commission cannot?

W. M. Shaw:

I feel that insofar as the question of explicit authority is concern, if this were a congressional committee that would be eliminated.

Earl Warren:

How about the constitutional rights you’re taking about?

W. M. Shaw:

Constitutional rights as stated by Mr. Justice Burton, if we remove the question of authorization in this case will fairly bristle the constitutional question as I see it.

The lower court didn’t find it necessary to go into that —

Earl Warren:

But what I —

W. M. Shaw:

— but in my opinion —

Earl Warren:

— what I was getting at Mr. Shaw is would the same constitutional principle be involved if — if it was a congressional investigation?

W. M. Shaw:

The constitutional principle of that — of due process could arise in any case.

But as I say, due process is something that you can’t say, “Here it is and it goes this far and no further.”

And you — you have to consider a congressional committee’s investigation in context with everything is going before and — and everything has not going before the same for administrative tribunal.

And I say that the administrative tribunals — we’ve had substantially the same question so for as I can see indistinguishably.

The same questions arise many times, in the cases that I’ve cited in Peters and Greene and the other cases that had been decided by this Court.

William O. Douglas:

As you are saying in substance is this is a sort of a — under the rules of the Commission, a — sort of a pretrial proceeding in the criminal case.

W. M. Shaw:

Exactly.

The complaints, as I see it, can’t be treated in the other way because they do charge crime.

Charles E. Whittaker:

Now, do you know of any (Inaudible) criminal case though it does not result in some kind of an order of binding order or binding above the clause, some kind of an order?

W. M. Shaw:

Well, again, if — when we speak of order, you’re speaking of a — some kind of sanction, I believe that that’s right, some — some — either an indictment or —

Charles E. Whittaker:

I mean more than just a — a report.

W. M. Shaw:

What is that?

Charles E. Whittaker:

Something more than a mere report?

W. M. Shaw:

Or declaration.

I don’t know of any —

Charles E. Whittaker:

(Voice Overlap) declaration goes too far for me because that’s the judgment maybe very well but it declared by court the declaration of rights.

W. M. Shaw:

Well, I’m — I’m speaking of declaration not in the — that sense.

I’m speaking of merely a statement saying that so and so it done so and so.

But if you want to use any words of justice, well, so long as we have the same meaning in that, I say this, insofar as criminal proceedings are concern, I do not know of any preliminary criminal proceeding which if some basis is found for the action, does not result in some such order as you are speaking of.

On the other hand, you’ve got the case of the Joint Anti-Fascist Committee which was an administrative proceeding which resulted in nothing more that State address — describing the organizations involved.

And that’s exactly what I see would result in this case, a statement describing these individuals and their conduct.

Audio Transcription for Oral Argument – January 18, 1960 in Hannah v. Larche

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W. M. Shaw:

And I think it —

Earl Warren:

Mr. Shaw, does your — when your legislative — legislature conducts investigations as to illegalities, alleged illegalities and irregularities, does it accord to all witnesses the right you — you claim for these people here?

W. M. Shaw:

In — practically, every case that I know of in our legislature, we do not grant the right to — of subpoena to our — our committees and they do not follow these particular rights now.

Earl Warren:

Do you never — do you never have the power of subpoena?

W. M. Shaw:

I do not recall any case.I don’t say it have not been in them, imagine they have been but in all the instances now had been involved, there are number of hearing, we’ve never had the right of subpoena.

I think that is a key factor in this whole matter.

That if there were no subpoena powers involved in the question of due process, would take much a different aspect in the case.

The — that is the key to distinguishing the Norwegian Nitrogen case from which the Government relies from it.

Norwegian Nitrogen case which they say is very similar was to me almost completely dissembled.

First place, if Your Honors will recall in that case, what was involved was a — a hearing of the Tariff Commission.

A public hearing called by the Tariff Commission in — to receive evidence voluntarily not on the subpoena from anyone that I could find in which — on which they would base tariff rates on Nitrate of soda.

Now, the Norwegian Nitrogen people who would be affected by it, appeared in our position to the American Nitrogen people.

And they were given the right of cross-examination and so forth and — and the only thing that were restricted was certain information bearing upon manufacturing processes of the American Nitrogen people.

And I think if the Court will read that case, you will see the question of subpoena was not involved, the — really the question of due process is entirely different.

The same thing is true of McGrain versus Daugherty which they have used in that case, the — the person subpoenaed was a nephew of the Attorney General not the Attorney General himself.

The Attorney General was a person in — accused.

Here, they are subpoenaing the accused which have been pushed in an entirely different aspect on the case.

Hugo L. Black:

What kind of finding does the Commission authorized to make?

W. M. Shaw:

As I read it, they are unlimited in their scope on this matter.

They are —

Charles E. Whittaker:

You use the word finding (Inaudible) sense.

W. M. Shaw:

I’m using the word finding in its ordinary sense.

Finding what I would — it would be a conclusion of some kind, if that was reached.

Read this section —

Charles E. Whittaker:

Is the (Inaudible)?

W. M. Shaw:

That is correct.

Shall submit interim report at such time as a — to the Congress and to the President of that — of that — activities, findings and recommendations.

As I say those activities’ finding a recommendation can cover practically anything.

My time is limited and —

Hugo L. Black:

It covers the finding as to whether or not someone has deprive another the right to vote.

Audio Transcription for Oral Argument – January 18, 1960 in Hannah v. Larche

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W. M. Shaw:

I certainly think it would.

I think it would.

As a matter of fact, I think the preceding section requires them to almost —

Hugo L. Black:

(Voice Overlap) added to it are the words finding and the punishments of the publication by report.

W. M. Shaw:

Well, I think it —

Hugo L. Black:

Is that what you’re arguing vis-à-vis?

W. M. Shaw:

I’m — I’m arguing that — was — what would be the effect of it.

It can be a — injury by the — the order that would result of him being accused of violating the laws and so forth.

Felix Frankfurter:

That was joint fascist.

That in effect was joint fascist.

W. M. Shaw:

I’m sorry, I didn’t understand.

Felix Frankfurter:

I say that was in effect joint fascist just fabrication.

W. M. Shaw:

Exactly.

That’s all it was.

Charles E. Whittaker:

The joint fascist was a federal question, wasn’t it?

You keep — all of you keep citing Groban.

W. M. Shaw:

That’s correct.

Charles E. Whittaker:

There’s a difference in the Court.

I — the Court has never agreed that the Fourteenth Amendment made all of the Bill of Rights applicable to the States.

But here, we have to consider this on the basis of the whole Bill of Rights, and that was not true in Groban.

W. M. Shaw:

I would like to say one or two things before I sit down.

First is this that if Congress intended, specifically intended to give the Commission this authority, we’ve had an entirely different case.

This exact bill is the same bill is up for Congress at this time, right now.

If they wish to give them this authority explicitly, they can do it in as — almost as sooner the time this Court could do it by judgment.

That authority resides in Congress and they are sitting over there now considering this bill.

If the — if the Court holds the Commission to the ruling in Greene and these other cases, Congress will be able to — if they wish to clarify and give them this explicit authority, they will be able to do so.

I think that that is a — a matter that should be weighed very, very carefully in connection with what we are — are here discussing.

Another thing —

How — how can Congress do that if their claims are incorrect and unconstitutional?

W. M. Shaw:

What — what I’m saying that — that would remove the principal question involved here in this case which is one of explicit authority.

Audio Transcription for Oral Argument – January 18, 1960 in Hannah v. Larche

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W. M. Shaw:

The — the constitutional basis would also — but what I believe, I sincerely believe that if this question is presented directly to Congress, Congress will going to make them yield the right of cross-examination and the right of confrontation in — in notice, make them give it to people that are accused of crimes that are brought before them for an investigation.

Now, I don’t think Congress are going give them that.

But — but I say that the opportunities there, if Congress wishes to do it, they can remove that principle question by an act at this particular time.

Felix Frankfurter:

You — you agree with the Government that this — the Court should be against you on the ultra vires of the rules promulgated by the Commission and therefore, when reaches — therefore, when it’s up to — up again that — in which way you look at it, up to the constitutional issues that this is the place to decide it and not to set aside.

W. M. Shaw:

But I would have to —

Felix Frankfurter:

(Voice Overlap) — on that.

W. M. Shaw:

I would have to demur for this reason, Mr. Justice Frankfurter.

The — the court below decided the Act itself was constitutional.

They — they specifically refused to decide whether or not the rules, if not ultra vires, were unconstitutional.

But I think it — in all — according to procedure it should go back to them to decide whether or not assuming that the rules not ultra vires, the rules themselves are unconstitutional.

Felix Frankfurter:

But I thought they’d already decided that the statute is constitutional?

W. M. Shaw:

They decided that the statute insofar that — might be considered an improper delegation of — of a legislative authority to be exactly what’s constitutional.

They — they specifically reserved —

Felix Frankfurter:

But not that issue.

What do you say to this — Judge — Judge Walsh that — of course this Court has done both things —

W. M. Shaw:

Yes.

Felix Frankfurter:

And if ever that in deciding whether the constitutional question is not yet canvassed by the lower court, it should be dealt with here, it is appropriate to take into account the length of life that this isn’t the remaining life of this Commission.

W. M. Shaw:

If it please the Court, I feel this Commission is sort of like a cat.

It has — has at least nine lives if — if not more.

Felix Frankfurter:

It makes that 18 years, does it?

W. M. Shaw:

The — the — that was the same argument that was used in the court below and it was confidently predicted at that time that the Commission’s life will be renewed and it was, and it’s much easier to create an agency in my experience and is to kill one and I feel like from observation of this Commission go north quite a while.

William J. Brennan, Jr.:

Mr. Shaw, may I ask you if you (Inaudible) the constitutional question, whether here or below, would any of your attack upon (Inaudible) involve an attack on the ground in violation of the Sixth Amendment?

W. M. Shaw:

Only insofar as the Sixth Amendment is incorporated generally in the term due process and that should have to — to apply to a particular case.

William J. Brennan, Jr.:

(Inaudible) do I gather you’re saying that — that we — this is not a criminal prosecution?

W. M. Shaw:

Oh, no.

Not —

William J. Brennan, Jr.:

It did not.

W. M. Shaw:

We recognize this is not a criminal prosecution but as I understand due process or — or the — it’s — it’s something that includes ordinary rights or they’re generally considered heritage from the Anglo-Saxon jurisprudence.

Thank you very much.

Attorney:

Mr. Chief Justice, the Government —

Audio Transcription for Oral Argument – January 18, 1960 in Hannah v. Larche

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Attorney:

I have no — no further argument.

Earl Warren:

Very well.