In re Groban – Oral Argument – November 06, 1956 (Part 2)

Media for In re Groban

Audio Transcription for Oral Argument – November 06, 1956 (Part 1) in In re Groban

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Earl Warren:

Mr. Allison, you may proceed.

Earl W. Allison, Jr.:

If it please the Court.

We were just before the recess discussing the question of this Court’s jurisdiction to hear this particular case.

We have presented certain matters to the Court, which I believe clearly indicates that this Court does not have jurisdiction to consider the sole question which is raised here.

I would like to merely bring out one or two other points.

Perhaps, they are repetitious and so, they are deserving of emphasis.

First of all, this hearing, which has been referred to as a hearing is not a — in fact, a hearing at all.

It is described as an investigation.

Purpose of that investigation is not merely to find out if somebody is guilty of a crime and then charge him with arson but it is to find out certain other facts, because of the fire as to whether or not it was in incendiary in nature or the result of carelessness and perhaps other matters which come within the province of the State Fire Marshal of the State of Ohio.

Secondly, there is one point which I would like to bring out at this time, and that is that we have stayed away in this case from the question of the enforcement here.

We did not want to bring in collateral matters which we felt had — would only more or less clutter up the case, but the Court’s attention should be directed to the fact that although, Section 3737.99 provides a more or less summary commitment, there is an alternative procedure which could be followed here, and that is Ohio Revised Code Section 29 — 27 — 2917.26 is a general section which makes it a misdemeanor to commit contempt by refusing to obey the subpoena of or to refuse to answer questions or refuse to be sworn of a Court or other legal authority.

Other term or other legal authority there would cover of course the many state departments, administrative departments which do have the power to subpoena and examine witness before them.

So that — that section also provides that that would be handled in the usual manner of going in before a Court and having that contempt charge would be an open hearing and that would of course, do away completely with any application of the Oliver and Murchison cases here.

So that —

Earl Warren:

You — you suggest do you that the Fire Marshal might intend to follow that procedure rather than — than the summary one?

Earl W. Allison, Jr.:

I suggest that in view of the Oliver and Murchison cases, I would hope that the Attorney General of the State of Ohio who is the legal adviser to the Fire Marshal might point out the possible advisability of following that procedure.

Earl Warren:

Well, isn’t that locking the barn door after the horse is out?

He did commit this man, didn’t he?

This man.

Earl W. Allison, Jr.:

He — he did deliver this man to the —

Earl Warren:

Jail.

Earl W. Allison, Jr.:

To the Sheriff for commitment.

Earl Warren:

No.

He committed him, didn’t he?

Not for commitment by someone else, he committed him himself, didn’t he?

Earl W. Allison, Jr.:

As I stated earlier, Mr. Chief Justice, the men were never actually committed, that’s why I hesitate to say “Yes” to your question — to your question.

He was delivered for commitment but before they could be committed, they were released.

Earl Warren:

Well, I understood you to say that the Sheriff appeared and — and orally admitted that — that he had been committed to him, did have him in his custody and justified.

Earl W. Allison, Jr.:

Technical commitment, once they were —

Earl Warren:

Once they were —

Earl W. Allison, Jr.:

— released on — on bond.

Earl Warren:

Well, he — he did it for the purpose of this Act, did he not?

He admitted —

Earl W. Allison, Jr.:

That is correct.

Earl Warren:

— that he’d been —

Earl W. Allison, Jr.:

That is correct.

Earl Warren:

— committed.

And the only way he was committed was — was by this Fire Marshal who put him under arrest and sent him there.

Earl W. Allison, Jr.:

That is correct.

Earl Warren:

Well then, what — what distinction do you make between that in any ordinary commitment or attempt to commit?

Earl W. Allison, Jr.:

Well, I was more or less lost in the simultaneous circumstances here which occurred all at the same time.

He was delivered to the courthouse.

He was delivered to the Sheriff’s Office for a commitment and the Sheriff, as you point out, did enter and open the Court and in his return, state that he had received custody of these individuals and that they were then and still are out on bond.

Earl Warren:

But that is an unusual procedure, in habeas corpus, is it?

That you submit — submitted defendant even to the custody of the Sheriff for the sole purpose of — of a — of having really habeas corpus issued?

Earl W. Allison, Jr.:

That — that’s correct.

Earl Warren:

So, this is normal procedure in that respect.

Earl W. Allison, Jr.:

Now, with that, I believe that I have completed our arguments as to the question of this Court’s jurisdiction to pass upon the question raised by appellant, namely, the right of counsel in this investigative hearing and the effect thereon by the Fourteenth Amendment.

That the argument on the question of whether or not in the event the Court decides to proceed with this matter, the argument as to whether or not the Fourteenth Amendment does apply to the matter here before the Court for consideration will be presented by my colleague, Mr. Werum.

Hugo L. Black:

May I ask you?

How could — how we could, in your judgment reach this conclusion that you assume?

As I gathered, you assume that probably the Court in future cases might defy this, your own statute which allows a man to be tried in court before he’s committed.

I — I gather that’s what — why you cite that statute, is that right?

Earl W. Allison, Jr.:

I cite that as an alternative —

Hugo L. Black:

Yes.

Earl W. Allison, Jr.:

— to the commitment provision which —

Hugo L. Black:

But —

Earl W. Allison, Jr.:

— merely the — this — the applicability of the Oliver case here was to the effect that the defendant in a contempt proceeding would — was not granted the right of trial in open court.

Under this other section, which I have just referred to, that does provide for a contempt charge makes it a misdemeanor and would, of course, provide such a hearing in open court besides —

Hugo L. Black:

So far as this case is concerned, no —

Earl W. Allison, Jr.:

As far as this case is concerned, Your Honor, that Section has no application.

That Section —

Hugo L. Black:

The only way —

Earl W. Allison, Jr.:

— was not used —

Hugo L. Black:

The only way that could —

Earl W. Allison, Jr.:

— rather, the alternative section.

Hugo L. Black:

The only way that could be reached would be in some way to vacate this judgment unless the Court considers the case on the basis of a — of that statute in Murchison and Oliver.

Earl W. Allison, Jr.:

I — I am merely trying to point out, Mr. Justice, that counsel for the appellants have stated previously in their argument that this private hearing could not be enforced because if this — if it were committed here, if the witnesses did answer questions or refused to answer after they were sworn that the Oliver case would apply, I was merely trying to point out —

Hugo L. Black:

Yes.

Earl W. Allison, Jr.:

— to the Court that if we went by the other proceeding in the future, the Oliver case would still have no application.

Hugo L. Black:

Now, that —

Earl W. Allison, Jr.:

But it must be remembered here that these witnesses, when they were summoned, even refused to take a note.

This is not a question of refusing to answer a question directed to them which might have been — they might have claimed self-incrimination or something like that.

That question is not before this Court.

These witnesses refused even to be sworn when they entered this investigative hearing.

And that of course, in our opinion, is only a further point that this Court has — this should not take jurisdiction to consider the question which is presented here.

William O. Douglas:

But the only — only objection was in the petition for writ of habeas corpus, was it?

That’s the only objection that these people made, what the petitioner here made?

Earl W. Allison, Jr.:

Yes.

As I understand it, I was not present at the time of the hearing.

I understand that at the —

William J. Brennan, Jr.:

Well, the record here —

Earl W. Allison, Jr.:

— time of the hearing —

William J. Brennan, Jr.:

The record —

Earl W. Allison, Jr.:

Their sole objection was —

William J. Brennan, Jr.:

The record will show, doesn’t it?

Earl W. Allison, Jr.:

— that the counsel could be present.

William J. Brennan, Jr.:

That’s the only thing that’s in the record, isn’t it?

Earl W. Allison, Jr.:

That’s right.

William J. Brennan, Jr.:

And is it — does that raise a federal question under your law?

Earl W. Allison, Jr.:

The —

William J. Brennan, Jr.:

The habeas corpus petition?

Earl W. Allison, Jr.:

The — I’m not quite sure I understand your question, Mr. Justice, as to what —

William J. Brennan, Jr.:

All I’m saying is there any allegation —

Earl W. Allison, Jr.:

— whether the petition raised a —

William J. Brennan, Jr.:

— as to a violation of the constitution of the United States?

Earl W. Allison, Jr.:

Oh, in the petition itself?

William J. Brennan, Jr.:

Yes.

Earl W. Allison, Jr.:

No, it certainly not.

When did that emerge, question of the federal question?

Earl W. Allison, Jr.:

The federal question was first raised by the appellants in their brief which they submitted or in the argument which they submitted on the — in the Common Pleas Court to which the — which first heard the writ, that the question was raised in the Common Pleas Court and was pursued in the Court of Appeals and Supreme Court of Ohio.

Hugo L. Black:

Your Court faced to pass on it, didn’t they?

Your Court passed on those questions?

Earl W. Allison, Jr.:

The Court — the Supreme Court of Ohio and the preceding courts as shown by the Court’s decision did state that there was no federal or no question of the Fourteenth Amendment.

Earl Warren:

Well, I thought the — their petition as it appears on page 16 proves — says that provision of Section 3737.13 Revised Code or it says, are not violating the provisions of — I beg your pardon, I — I didn’t —

Hugo L. Black:

Well, let’s take it up and consider, it didn’t held, it didn’t violate the Federal Constitution, didn’t it?

Earl Warren:

Oh — oh, this is the — oh, I thought this was the petition that I was reading.

Where is the petition for habeas corpus?

Earl W. Allison, Jr.:

Page one and two of the record —

Earl Warren:

Point — thank you.

Earl W. Allison, Jr.:

— Mr. Chief Justice.

Earl Warren:

Well, the Court — your Supreme Court did treat it as though the federal question was raised, did it?

Earl W. Allison, Jr.:

The — the federal question was raised in the Supreme Court in the briefs and was argued.

Now, there was — as I stated earlier, there were references to both the Fifth and Sixth Amendment which appellants rapidly admitted were not before the Court.

And then, also, the Fourteenth Amendment was raised in the Supreme Court of Ohio.

Earl Warren:

And the Court passed that?

Earl W. Allison, Jr.:

And the Court — the — that in passing on it, the Court merely said, “It is apparent that the constitutional rights of the appellant have not been violated and that the lower courts were correct in denying the release sought.”

The opinion of the Supreme Court of Ohio was not a lengthy one.

And in the — in the syllabus however and under Ohio law, the syllabus is a part of the law of the case.

Branch five read the provisions of Section 3737.13 Revised Code are not violative of the provisions of the Due Process Clause of the Fourteenth Amendment of the Constitution of the United States or of the provisions of Section 10, Article 1 of the Constitution of Ohio relating to self-incrimination and the right to representation by counsel.

Earl Warren:

In Ohio, where you had notes a part of the case?

Earl W. Allison, Jr.:

The syllabus as I just said is — the syllabus, it’s a part of the law of Ohio, insofar as that case —

Earl Warren:

Thank you.

Mr. Werum.

J. Ralston Werum:

If the Court the please.

For the purposes of this phase of the argument, I shall assume that this Court has taken jurisdiction of the problem that has been raised, actually, all the way through and the only problem and that is.

Do these people have a right to have counsel present at the time that they are before an administrative body or at the time that they are to be sworn?

I too have been over all the cases and find that there are very few.

In fact, I found none that would say that a witness as such is entitled to counsel.

There’s no question as to an accused, but you must remember that if the stage of the proceeding that this person was subpoenaed, it was merely a preliminary inquiry, an inquiry by an administrative body.

That person, the Fire Marshal was there to investigate.

Earl Warren:

For what purpose?

J. Ralston Werum:

For the purpose —

Earl Warren:

Mr. Werum?

J. Ralston Werum:

As he is required under statute to determine whether or not the fire was accidental in origin or incendiary.

And if so, if there was a cause, perhaps from that, he can determine who might be one to be charged with it.

In which events, that information is directed under the statute to be turned over to the prosecuting attorney for a submission to the grand jury.

Earl Warren:

All it was made to prosecution and was (Inaudible)

J. Ralston Werum:

It could be, but at that time and there is nowhere except in the charge as the Court pointed out in the petition of writ of habeas corpus filed by the defendants as they’re nowhere do we know what the final outcome would be of this administrative hearing.

It might have been a charge.

It might have been the causing the arrest of these defendants.

It might have been that the fire was found to be of accidental origin.

In which case, there would be no criminal charges at all growing out of it.

Earl Warren:

They’re of the same thing if you find a person dead, don’t you?

J. Ralston Werum:

That is correct.

Earl Warren:

You start looking around and —

J. Ralston Werum:

And it would be somewhat — in that case, be somewhat similar to what we call in Ohio, the “coroner’s inquiry,” in which he investigates in the beginning as — in effect an administrative body to determine whether or not the suspicious death was in fact a one which bears further investigation from a criminal standpoint.

In my research, I did discover what I consider a case not on all fours with this fact pattern on one of which is similar and that was decided by the Seventh Circuit Court.

And then, it is cited in our brief and that is Bowles versus Baer.

In that case, it arose under the price or rather the Emergency Price Control Act of 1942 and that then a Price administrator had a right for investigation.

J. Ralston Werum:

And that investigation could also be private and that the — a hearing called by — or rather I should say the investigation called by the Price administrator, Mr. Bowles.

The witnesses showed up with their attorneys and the question was then raised and fought through to the Court of Appeals of the Seventh Circuit and that’s recorded in 142 as noted in our Federal Second, as noted in our brief.

And there, the Court said and made a — to me, which I believe is the distinction which I should like to urge upon this Court, that there is a difference between a hearing and an administrative inquiry or a preliminary inquiry.

That under due process of law where there is a hearing involved which normally would end up and that a person might, as the end result of that hearing, lose property, his person, liberty.

He is entitled to the safeguards that are provided by the Fourteenth Amendment.

He is entitled to have his counsel.

But at a preliminary inquiry in which there is no deprivation of those rights, in which there is an administrative body that then he is not entitled to have counsel with him.

Nowhere have I found anywhere, any case, any time that says that the Fourteenth Amendment requires and you must have a — a counsel with the person if he so desires it when he is being sworn as a witness.

I haven’t found a case anywhere on that point.

But I did find as one federal case in which interpreting the Fourteenth Amendment to the Constitution, it said that, “Since a preliminary hearing is an investigative thing in which he will have his day in court at a later time before that body if it is so deemed by the legislature in giving that power to the administrative official, it can’t be secret, counsel can be excluded.”

Earl Warren:

Do you think that the State could provide that any of its administrative officers or executive officers could have the right to subpoena witnesses and — and bring him in, in private without — without the aid of counsel and question him under oath concerning any matter that fell within the purview of their offices?

J. Ralston Werum:

I think that the power is there for the legislature to give it to a — to the any administrative official.

I doubt the wisdom of giving that power but —

Earl Warren:

No, but you do think they could do it?

J. Ralston Werum:

I do you think they have the power so long as a person from that hearing, it isn’t the form of administrative inquiry as to determine facts that upon which might be based in the criminal action in the future time.

Now, in this case, to me is the perfect example of it if the Fire Marshal through this hearing determines first that there has been a — the crime of arson.

And secondly, that this person looks like they might have done it to bring that to the attention of the prosecutor or to a charge in an affidavit and bring it through to the grand jury and there you have your normal course of criminal proceeding.

Earl Warren:

But do you think that it could also provide that — that these — all these governmental officers could put people in jail for — for not responding to their questions?

J. Ralston Werum:

My personal opinion, Your Honor is — is to the extent, based upon the Oliver case that — that undoubtedly would be held by this Court to be unconstitutional.

Earl Warren:

Well, isn’t that what you have here?

J. Ralston Werum:

No, sir.

I don’t think you do, for the simple reason and I don’t think that the Ohio courts have passed on this because it was never raised until this Court.

And that this — this defendant here based upon what he has said the case was at all times has been a — a fact that it was the right to have counsel and not the right of the direct commitment.

That has never been raised —

Earl Warren:

Yes.

That —

J. Ralston Werum:

— all the way up the line.

Earl Warren:

I — that — that I agree.

That — that’s true.

J. Ralston Werum:

And therefore, if that is now the question then perhaps the thing to do, although I hate to say it, is to go back down and start up all over again and give the state courts a chance to pass on this based upon the pronouncements of this Court.

J. Ralston Werum:

But on the question that is before this Court if you take jurisdiction, that question, I think, should be answered also because this Court has never passed on it.

And that is the right of a witness under the Fourteenth Amendment to have counsel before an administrative body hearing and not one in which it might subject to a action in which he could be end up in jail.

Earl Warren:

The one — one thing that would lend weight to — to your suggestion as a possibility is this — this fifth head note on page 11 in which it says, “The provisions of the 3737.13 are not violative for the provisions of Due — of the Due Process Clause of the Fourteenth Amendment of the Constitution.”

And that — that Section is the — is the one which says, “Investigation by or under the direction of the Fire Marshal maybe private.

The Marshal may exclude from the place where such investigation is held, all persons other that those required to — to be present.”

J. Ralston Werum:

And that is the sole question that was before the Supreme Court of Ohio.

In fact, it was before the Court of Appeals and while I was not present at either the Court of Appeals or the hearing before the late Judge Clifford of the Common Pleas Bench, I believe that was the sole question argued there was, can I take a counsel into this hearing with me?

And that’s all that’s been passed upon all the way up in the line.

Earl Warren:

This —

J. Ralston Werum:

And even in that event, I think they were premature in that question because he hadn’t even been sworn yet.

And I cannot point a single case anywhere at any time that says that you have a right to have a counsel with you to be sworn, although —

Felix Frankfurter:

But that — but if he is right in this claim, then he can be resist being sworn, if his claim is that as soon as he gets inside the room where the Fire Marshal insists, he has the right to be attended by counsel and if the statute denies him of that right, then it isn’t premature for him to raise the questions that one raised that you properly indicated.

I don’t think that referred to your —

J. Ralston Werum:

Well, perhaps not.

I still tend to disagree with you that I — that it would seem to me that nowhere as anyways, anytime whether be behind closed doors or ahead of things or ahead of time in the open court or right to have counsel stand up with you.

Felix Frankfurter:

That — that’s the substantive question —

J. Ralston Werum:

That’s right.

Felix Frankfurter:

— that you were addressing to yourself.

J. Ralston Werum:

And I —

Felix Frankfurter:

I’m suggesting my — suggesting that his claim is a challenge to that proposition.

He says, “He has the right to be attended by counsel.”

Now, he has — if that’s right — in support of that right or the — the question, the presentation of that right.

I do not think in behalf by saying it’s prematurely raised.

The police says that’s a threshold.

I can keep my mouth shut.

I don’t have to submit to an oath.

I don’t have to — I can stand mute.

Suppose I haven’t got a lawyer.

And so, he is making it not premature.

J. Ralston Werum:

Perhaps so.

Felix Frankfurter:

Another question is you say you denied it, so that’s violative of due process to deny that right, but he claimed it.

He hasn’t raised it premature.

J. Ralston Werum:

We, in our research, of course went into something that it might be akin to this problem since the only case that we did find in point was right — was the one which I heretofore mentioned and tried to compare it to the grand jury.

Hugo L. Black:

May I ask you, if he had not been committed by the Marshal to the jail, could he have sued out this writ of habeas corpus?

J. Ralston Werum:

No, sir.

I don’t see how he could —

Hugo L. Black:

He’d based it —

J. Ralston Werum:

— would not have been under restraint.

Hugo L. Black:

The basis of the suit is, is it not what he alleges in his first part of his petition that he has been — he is imprisoned and restrained that in a legal authority, but under the color of a pretended commitment of being guilty of contempt for refusing to testify before said officer (Inaudible) pertaining to apply.

J. Ralston Werum:

There is no question about it that this man is in the custody, technical custody of the Sheriff.

Hugo L. Black:

And there is no question as to — but for the commitment, he couldn’t maintain this suit?

J. Ralston Werum:

That is correct.

Hugo L. Black:

Now, in a — in a petition for habeas corpus in your statement, the man alleges that his illegally restrained, his liberty by a commitment.

He happens to assert the wrong reason.

Assume it’s the wrong reason, would your Court keep him in jail or would they put the right reason and hold that he’s illegally restrained?

J. Ralston Werum:

I should hope they should do the latter, sir.

Hugo L. Black:

So what you have here is it — is it not, a claim, the illegal restraint of his liberty because the commitment which is wrong.

They have alleged and you say that’s not a good ground, maybe there’s a — that the reason they say is a void commitment is, that the ground that you have been arguing about not have been canceled.

Why — why under those circumstances if you — isn’t a — isn’t it true that he has raised the question of illegal commitment, even though he may have asserted fair grounds pursuant to this?

And why should he be cut-off if at any time the question is raised, the right ground is assigned by any party, if the right ground appears.

In a habeas corpus proceeding, I think that’s usually the rule as you say.

J. Ralston Werum:

Of course, in respect to Your Honor, the — quite often, courts overlook sometimes obvious things, both with the agreements of the parties that they overlook it in order to test out an issue.

And as the — as the facts were stated to you here by Mr. Graham in his opening statement, originally, this was to start out at the level of the Supreme Court of Ohio, but due to an apparent administrative conflict, the commitment was turned earlier.

And the — so, they started to take the long path through to the — by the Common Pleas Court and up to the Court of Appeals in Ohio.

At all times and at all points along this, the only arguments that were presented by either side were always directed to the point that is before this Court today.

Hugo L. Black:

Well, whose ever fault that is, that’s (Inaudible)

I gather from what you say that — from your fact that that wasn’t presented doesn’t change the situation if you say he raised the question of his commitment.

J. Ralston Werum:

Yes, but —

Hugo L. Black:

And — and I assume if it has been suggested to the Court, it would have felt — and failed to pass on it by — by the allegation that he is unlawfully — and thereby unlawful commitment.

J. Ralston Werum:

I — I agree that if that have been raised —

Hugo L. Black:

If that argument has been made.

J. Ralston Werum:

That’s right, sir.

I think —

Hugo L. Black:

In between them, the difference between an argument made and a question raised.

What he alleges here is and the whole basis that is causing that — without breaking evidence is that he is illegally restrained of his liberty by reason of the color of a pretended commitment for being guilty of contempt.

Now, that — if that has been told to the argument that you — you wouldn’t have a word, a — have a word to the petition, would he, to get the Supreme Court to pass on the validity of his commitment?

J. Ralston Werum:

The Supreme Court of Ohio?

Hugo L. Black:

Yes.

J. Ralston Werum:

That’s correct.

He could have —

Felix Frankfurter:

But the Supreme Court did pass on the predicament that says it was valid because the claim which they did raise, namely, that he’s entitled to come into the Field Marshal — the Field Marshal (Inaudible) the Fire Marshal, the defendant, with a lawyer was an invalid claim.

J. Ralston Werum:

That is correct and that’s the grounds —

Hugo L. Black:

That’s the only ground they’ve passed on.

J. Ralston Werum:

That is —

Felix Frankfurter:

Well, is there any other ground under the record in that that he can object to?

Is there anything else in the record that said —

J. Ralston Werum:

No, no, sir.

Felix Frankfurter:

— that he said, “The Ohio statute is unconstitutional because it gives power for the Fire Marshal to call him in and ask questions although he can’t produce lawyers.”

Is there anything else in this record in there?

William O. Douglas:

Well, illegal detention, isn’t it?

Hugo L. Black:

All it says is illegal detention.

He didn’t have any justice in the Supreme Court to ever argue this case.

If it alleges an illegal detention and — and there it is before the Court and it’s conceded that under Ohio law that raises the question.

That’s sufficient to raise the question of whether the commitment is illegal under the statute.

Why isn’t this the course you suggested?

You hate it to suggest probably the right one, it be sent back judgment vacated to let them pass on that question which is certain, encompassed in the general statement “illegally restrained.”

Felix Frankfurter:

Well — why —

Hugo L. Black:

Why don’t you answer that before you answered Justice Frankfurter?

J. Ralston Werum:

Well, I would like to — I think I can answer you, sir.

That is you very well put it, if we go back down, no matter whether you send it back down or whether you pass on it as an illegal commitment the alternative is right there.

J. Ralston Werum:

It is a misdemeanor to refuse to — to testify and we’re right back all the way up here again.

I presume they will take the same position that they once — won’t been sworn in unless they can have their counsel present.

And we will be right back up here two years from now or how long it takes to come back up.

Hugo L. Black:

Well, you would have one question disposed of as to whether or not the restraint is illegal.

J. Ralston Werum:

Well, that is true.

Hugo L. Black:

He alleged that it is.

Felix Frankfurter:

But illegal as to say a restraint is illegal doesn’t thereby allow habeas corpus to be sustained.

There must be some basis for you to reach out.

J. Ralston Werum:

That is correct.

Felix Frankfurter:

And the fact that he had to give a bond doesn’t make it legal.

It’s illegal if he exact into the bond, which is the substitute if the surety for the commitment is illegal.

And if the — if the illegality ground and if there’s anything else between these — these two grounds covered except that it’s illegal because they weren’t allowed to have a lawyer.

What else —

J. Ralston Werum:

That is correct and that is —

Hugo L. Black:

Well, read the first — the closing line of the first paragraph?

See what it says.

J. Ralston Werum:

Of the petition, Your Honor?

Hugo L. Black:

That’s right, of the petition.

What — what does that mean?

J. Ralston Werum:

That is prior the petition I think you’re referring to which —

Felix Frankfurter:

Is it?

Hugo L. Black:

I’m referring with the one that says, “Harry A. Groban, Nathan Groban, Petitioners, respectfully represent that they are imprisoned and restrained of their liberty by the Sheriff of Franklin County, pursuant to an order, William S. Peterson, Deputy Fire Marshal of the State of Ohio without any legal authority but under the color of a pretended commitment of being guilty of contempt for refusing to testify before said officer adhere pertaining to the file.”

What do you think that raises?

J. Ralston Werum:

I think it raises the point that they have gone on to raise and limit themselves to you, Your Honor.

Hugo L. Black:

Do you think if they limited this — this raising here by what they later say.

J. Ralston Werum:

That’s right, sir.

Hugo L. Black:

I don’t understand that argument.

J. Ralston Werum:

And the fact that —

Felix Frankfurter:

And that’s what a writ of habeas corpus means that he — he’s illegally detained, but the man doesn’t file a writ of habeas corpus on a legally detained period (Inaudible).

There must be some basis for the charge of illegal detention.

J. Ralston Werum:

Well, their basis is the question that is before this Court if you accept jurisdiction.

Hugo L. Black:

Their basis appears to be —

J. Ralston Werum:

Well, it —

Hugo L. Black:

— they’re illegally restrained because of a unsound illegal commitment in the ground the arguments they make are that it’s illegal for one ground and the argument seeming of the Court is that since it’s — they’re — they’ve got to be limited to that ground in the habeas corpus case.

J. Ralston Werum:

And we as the —

Felix Frankfurter:

I don’t think they need to be limited to any label they have to fix, but they are limited to what they seek for.

And what they said forth is that the statute of Ohio is unconstitutional.

I can understand the argument.

The — the Ohio statute is unconstitutional because a single official, a Fire Marshal or anybody else can’t hold a hearing in private and examine the citizen of Ohio or any citizen without having a lawyer.

And that’s why it’s illegal, not that it’s illegal as up in the blue skies.

Hugo L. Black:

And if we can avoid that serious constitutional question, following the long standing admonition of this Court of vacating the judgment, sending it back to get more information as to what the Court is doing, why shouldn’t we do that?

J. Ralston Werum:

Well, I think the — my first reaction to answer you, sir would be on the basis that since we are here, I’d like to get the question that I thought was before this Court answered.

Hugo L. Black:

But we frequently tell people that we can’t decide questions just because they want them decided.

J. Ralston Werum:

Well, I —

Hugo L. Black:

We can struggle to avoid deciding, see if it’s a constitutional question.

Felix Frankfurter:

Even to the part of bringing new law — interaction by the Fire Marshal of Ohio?

J. Ralston Werum:

Oh, I can’t answer for the attorneys for the — the appellants in this case.

Mr. Allison and I are depending probably upon the results of today’s election might be back up here on this case again, if our boss is elected.[Laughter]

Felix Frankfurter:

Is the Fire Marshal a candidate (Inaudible)

J. Ralston Werum:

No, sir.

He is — he is an appointed official.

We actually — our office does not represent the Fire Marshal.

As Mr. Allison pointed out, we’re in this case because the Sheriff was the one that was the actual defendant.

In closing, I should like to say two points.

I should like to urge the thought upon this — to this Court because I think Justice Frankfurter in effect stated in the Oliver case that —

Hugo L. Black:

Was that the Court’s opinion?

J. Ralston Werum:

No, sir.

That was — he wrote the opinion, but in his — in his opinion.

Hugo L. Black:

But the dissent (Inaudible)

J. Ralston Werum:

It was a dissent, sir.

Felix Frankfurter:

I thought he concurred, but he didn’t rule to this Court that you can quote anything that’s written by and under the Court or just speaks to the Court, as of — I think it were.

[Laughter]

J. Ralston Werum:

Well, I should like to point out that I think that both Justice Black and Justice Frankfurter both said the same thing and under different language.

Hugo L. Black:

We didn’t know it?

[Laughter]

J. Ralston Werum:

That basically in an investigation, there is the right — this Court doesn’t under the Fourteenth intend to limit the State as to the means that it chooses for investigation so long as before that person is convicted or is find that they may have the benefits of the Fourteenth Amendment.

If the States selects as part of its proving of the investigation to make the hearing secret, then that is up to the State.

Certainly, in the grand jury there’s many reasons why the grand jury’s probe should be secret, not only not to injure and embarrass innocence.

That’s probably the chief reason.

And in this instance, if they want to give the Fire Marshal that right, he has the right.

But the Fourteenth, we submit does not mean that he has — has the right to have counsel present during this administrative investigation because it is not a hearing.

(Voice Overlap)

Hugo L. Black:

Does a Court — a Court hold preliminary trials like some of them do.

J. Ralston Werum:

I beg your pardon, sir?

Hugo L. Black:

In felony cases, do you have preliminary —

J. Ralston Werum:

Yes, sir.

Hugo L. Black:

— trials before justice of the peace and so forth.

J. Ralston Werum:

That is correct.

You have a — after the affidavit or the arrest, he is then before a preliminary magistrate to either not or to be bound over to the grand jury in grand —

Hugo L. Black:

If that’s public then he’s entitled to counsel.

J. Ralston Werum:

That’s right, sir.

Earl Warren:

Mr. Werum, did you — did you research in your State or in the federal system whether it conform to due process for an administrative officer to send a citizen to jail summarily for contempt, for a failure to comply with the subpoena or to — to answer whether any — any cases or did you raise from —

J. Ralston Werum:

I — frankly, I came across an old case, although —

Earl Warren:

You did research it though?

J. Ralston Werum:

I did look into that problem, not as thoroughly as I did the other point.

Earl Warren:

Yes.

I can understand why.

Thank you.

Mr. Graham.

Mr. Graham, would you mind addressing yourself at the moment to the question that Justice Black asked about the feasibility of remanding this — vacating this — this decision and remanding it to the Ohio courts to determine the other half of it that might not be here?

James F. Graham:

Not at all, Chief Justice.

Earl Warren:

All right.

James F. Graham:

What is to be gained by sending this case back for further records?

We take these statutes as they are.

We were confronted with an Assistant Fire Marshal telling our clients, “You are coming in.

You are going to bring your records.

You’re going to be sworn.

You’re going to testify.

You’re going to do it without counsel.

There’s a record going to be made and if you fail to testify, we will commit you until you do testify.”

And that was the order of the commitment as provided by this statute, committed to jail until he testify.

Now, that — those statutes has to be read together.

Now, where was we as their counsel or they as the parties going to decide when he had a right to the appearance?

Earl Warren:

Had a right to what?

James F. Graham:

To — to be there.

That — what stage of the game?

It was secret.

When would be the — when would the parties be able to come out from the hearing and say, “Now, counsel come in.”

Felix Frankfurter:

How do you do that if one of your clients is a witness before a grand jury?

James F. Graham:

If they — party is — the witness is subpoenaed —

Felix Frankfurter:

Not a party.

James F. Graham:

I beg your pardon?

Felix Frankfurter:

I didn’t say a party.

I said a witness.

James F. Graham:

Eyewitness is subpoenaed before grand a jury in Ohio.

I do not believe that they’re entitled to counsel, because there — there are 15 people besides the prosecutor and the grand jury has no right to commit if that witness says, “I decline to testify.

I decline to be sworn.”

All the grand jury can do is to go the Common Pleas Judge and present the matter to the judge and the judge acts from their own.

I want to say, Justice Frankfurter that it’s a practice in Ohio that usually not to bring or try to bring the accused then.

They watch that very closely.

James F. Graham:

Now, Mr. Justice Frankfurter, while we’re on that point, let us look at Section 2935.23 of the Revised Code.

“Examination of witnesses before arrest after a felony has been committed and before any arrest has been made, the prosecuting attorney of the county or any judge or magistrate may cause subpoena to issue, returnable before any court or magistrate for any person to give information concerning such felony.”

This subpoena shall require the witness to appear forthwith.

Before such witnesses required to give any information, he must be informed of the purpose of the inquiry and that he is required to tell the truth concerning the same.

He shall then be sworn and be examined under oath by the prosecuting attorney or the Court or magistrate, subject to the penalties for perjury under Section of the Code and subject to the constitutional right of the witness.

Such examination shall be taken in writing, in any form and shall be filed with the Court or magistrate taking the testimony.

Here, we were confronted in this case now by saying “Come in.

Bring your records.

What proof of loss is filed with the insurance companies will have a bearing on this case and you testify.

No counsel.”

We said “No.”

We went to the Attorney General’s Office, whom we are on very friendly relationship and on an honorable basis and said to them, “We don’t think that’s the law, although your former predecessor has said it was.”

He said, “Well, we will be glad to cooperate with you and have it questioned.

Get it decided.”

He agreed with us that we should go to the Supreme Court and we did went to the Chief Justice Weygandt.

And they said they would hear us one week, just take a week time.

We said, “We have no question of delay here.”

Now, remember, this is in — in a small community and these things have bearings upon people’s business and upon their standing in the community.

And if they — they went in there and didn’t want to testify, the people would gain the suspicion that they were guilty.

It tells notoriety.

So, we said we will go to the Supreme Court to save time.

Whoever is guilty of any crime up there, we will not try to hinder you from finding out who it is.

It is not that.

It was not our purpose.

If you will let my son and I as counsel for these men, we will come in and we will try to answer any question that you want to ask us.

We will give you any record that we think you’re entitled to.

He said, “No.

You’re not coming in.”

The Attorney General said, “Well, look, let’s get it decided.”

Said, “You get your petition all ready.

James F. Graham:

You come over.

You’ll have to have it, show that, though there have to be a commitment because we just couldn’t go into court and get a declaratory judgment on this case.”

So, with that gentleman’s agreement with the Fire Marshal concurring, we appear before the Fire Marshal at 1:30 in the afternoon.

The Fire Marshal informs me.

He said, “I’m not allowed to come in.”

I said, “I understand that.

I appreciate that.”

I said, “My clients are not going to testify.”

They went in, came back out, refusing to testify.

He comes out and he says, “Come on, you’re going to jail.”

And I said, “Well, wait a minute here.

We have an agreement.

We’re going to the Supreme Court.

You’re not to put these men in jail.

You’re just to commit them.”

“Oh, no.”

He said, “No, no.

We’re taking them down to jail.”

So, they’re defying my rights.

I’ve got rights here and I’m going to see that they testify and they’re going to obey me.

He takes them down on the elevator, takes them down to the Sheriff’s Office.

The Attorney General was dumbfounded.

Certainly, it was not in keeping with our understanding that he — he was shocked about it.

Now, no one, but these prosecutors were gentlemen at all times so was the Attorney General.

They took him down and the Sheriff was kind enough to let him sit down in the outer office and that’s where they remained until we got one of the Common Pleas judges to grant the writ.

Now, that’s what — that is the actual facts as to how these things come up in our hand.

So then, when we went in to the Common Pleas Court, we told the Common Pleas Court, “We raise the question that they have — that they did have a right to counsel in this kind of a hearing before this officer that had this power — amended powers under the statutes.”

Because when we’re going to make the decision under those cases.

That statement indicates to me at least pretty clearly that the real essence of your grievance here is not the commitment, not the Murchison case, but the question of whether the Fire Marshal can get testimony without counsel being present.

That’s the real guts of your case, isn’t it?

James F. Graham:

If the Court please, Judge Harlan — Mr. Justice Harlan.

That is the question that we raised and had to raise it in the very beginning.

But your own statement was that in order to test this, you arranged with the Attorney General to have habeas corpus jurisdiction obtainable by arranging this consent commitment, so to speak.

James F. Graham:

Yes, if the Court please.

We were not going to testify without counsel and we so notified —

Yes.

James F. Graham:

— the Attorney General and the Attorney General agreed that that would be it.

So —

That —

James F. Graham:

The — the procedure was followed, Mr. Justice Harlan.

I’m not criticizing you.

What I am —

James F. Graham:

No, I appreciate that.

— suggesting is that the answer to the Chief Justice’s question would be or Justice Black’s suggestion that if we vacated to remand would be from your point of view, vacating and remanding to have a question in which you’re really not interested decided and that’s why you don’t want to remand it, isn’t that it?

James F. Graham:

Oh, no, Mr. Justice Harlan.

I don’t understand that they have to find at all.

But maybe I don’t — do not understand you.

But I — it is our contention that when the statutes have read apart from this brilliant officer, the powers of these statutes have granted him, that he’s entitled to counsel.

That as Mr. Justice Frankfurter pointed out, we raised it at the — at the very instance, very beginning.

Then, as to the fact that the reason why the Attorney General and our office was wanting to cooperate with it, was for the purpose of keeping away from delay.

Now, let me put this question to you.

Assuming that this Court decided that on the question that you raised here, there’s no constitutional point raised.

Would you be interested in having anything else decided in this case?

James F. Graham:

Well, certainly the — in these — these men are — are wrongly incarcerated, because he had no power of commitment.

He — under– under the — under the Constitution as this Court has decided it.

He had no power of commitment.

Now — now, if the Court please, Mr. Justice — Mr. Justice Harlan.

Suppose that they go in, suppose you send it back —

No, but —

James F. Graham:

— and — and the — and the Fire Marshal calls him in again or he had to go back.

James F. Graham:

Now, as to go back and go back to jail, the only way they can get out of jail is to go back down before the Fire Marshal.

No, no.

But obviously, if this Court should decide on the question that is here, that there was no constitutional problem presented, namely, that Ohio had the Fire Marshal had the right to compel testimony without counsel, your man would simply go back and answer the questions and that would be the end of the matter.

Felix Frankfurter:

Or not answer —

James F. Graham:

Oh, no.

Felix Frankfurter:

— upon a claim of a privilege.

James F. Graham:

Oh, no, no.

Felix Frankfurter:

Do not answer them on a claim of privilege.

James F. Graham:

He — he goes back.

He goes back and — and goes in and he has no counsel.

Yes.

James F. Graham:

All right.

Now, he goes in and he doesn’t have any counsel.

All right.

James F. Graham:

Now, Justice — Mr. Justice Harlan, I knew the statutes of Ohio as they are now written.

When is he entitled to counsel?

Oh, he wouldn’t be entitled to any counsel at all —

James F. Graham:

At — at any stage of the game.

— on that basis.

James F. Graham:

At any stage of the game.

So, therefore, then what does the administrative officer do, commit him or find him guilty —

Oh, he’s (Voice Overlap) —

James F. Graham:

— and arrest him?

— to be guilty, he commits it.

James F. Graham:

I beg your pardon?

He commits it, then what do you do?

James F. Graham:

Well, he commits him for what, for failure to testify?

Felix Frankfurter:

At that point, the problem in the Oliver case arises.

You then go before a judge and raise the Oliver and Murchison problem.

James F. Graham:

Oh, I agree with you that that could be done.

James F. Graham:

I agree with you, Mr. Justice Frankfurter that we could have said to the Court.

We could have said it not to the Court, but to the Administrative Officer of the Fire Marshal that we’re not going to testify.

No, we’re not going to testify.

We’re just not going to do it.

We’re not going to pay any attention to your subpoena.

Just ignore it.

Then had him commit but he appoint him commit under the statute and then — and then bring in the Oliver case into operation.

Well, what would be the point of going through that (Inaudible)?

James F. Graham:

Well, that’s what I would say if the Court (Voice Overlap) —

Exactly.

James F. Graham:

I say to this Court that we raise the issue at the very beginning and he just proceeded —

Felix Frankfurter:

Well, the issue that you raised at the very beginning, as I conceive it properly, because the issue being what it is, the issue you raised is that I want my client to have the benefit of my presence.

But that was not the Oliver issue and that was not the Murchison issue.

James F. Graham:

You didn’t say that in the Murchison issue because that — it was not — it wasn’t raised in that method in the Murchison case.

Felix Frankfurter:

Isn’t the question of raising, it’s the substance of what the claim was?

Isn’t not — it isn’t — it isn’t there whether it was raised in the beginning or in the middle or at the end, but what was complained of.

The Murchison — the Oliver and Murchison problem was — was a totally different one from this one.

James F. Graham:

Well, if — if this case goes back, if the Court please.

If this case goes back, we can write back up with it.

But if this case go — goes back, the chances are that the attorney for the Fire Marshal won’t advise him to commit direct in the face of the Murchison case, but advise him to take the alternative method to go before a — a judicial officer and commit him that way and — and then you will not have this trouble at all.

James F. Graham:

I don’t believe that under the statute he has that — he has the right to go to any, because —

Meaning —

James F. Graham:

— that statute isn’t that broad.

Therefore, he has the right to commit at all.

James F. Graham:

I don’t think so.

That’s our — that’s our honest contention.

That will be a new lawsuit.

James F. Graham:

I beg your pardon?

That’ll be a new lawsuit.

Felix Frankfurter:

Suppose your client — suppose — Mr. Graham, if you don’t mind, having been duly advised by you, just as witnesses are advised to go before the grand jury without having the lawyer present.

Felix Frankfurter:

Suppose your client having been advised by you, suggests that he come within anytime of reasonable line, trudging something that you think enter upon the domain or privilege of self-domination, he says, I refuse to answer.

I refuse to answer.

Well, (Inaudible) and the Fire Marshal doesn’t even got there with the privilege against self-incrimination doesn’t at all (Inaudible)

And your client (Inaudible) to answer his ground and he’s committed.

Are you suggesting to me that you can be powerless to do anything about it?

James F. Graham:

Oh, no, if the Court please.

I doubt it, Mr. Justice Frankfurter, under no circumstances.

I say this.

I don’t think under the Oliver case that — that the Fire Marshal can do anything.

Felix Frankfurter:

I agree with you.

And if he abuses his power or exercise this power he hasn’t got, you’d get your relief by coming before a Court and saying, “This man can in secret do what was sought be done in the Oliver case.”

James F. Graham:

Judge Frankfurter — Justice, I say to — I — I say, it is our contention that we have already got him in that position.

That he has done something that he’s had no right to do.

Felix Frankfurter:

Well, that’s right.

And that — they are not — I’m not willing to pass on your substantive issue, namely, whether the Ohio statute on its face is unconstitutional in that it concurred power upon the field — insofar as the field Marshal is the only one that might be in companion, the Fire Marshall.

The Fire Marshall cannot be authorized to hear a witness without an attending counsel.

That is the substantive issue which you contend to this case.

James F. Graham:

That’s the question that I — they raised.

But as Justice Black pointed out, the man has been wrongfully admitted — had been wrongfully committed.

Felix Frankfurter:

He has been wrongfully committed if that’s an unconstitutional exercise the power by Ohio.

James F. Graham:

Well, by cracking the Fire Marshal, the right to do that.

Felix Frankfurter:

That’s right.

James F. Graham:

That’s right.

Earl Warren:

Well, Mr. Graham, did you argue to the trial courts the question of whether there — it was constitutional for the Fire Marshal to commit your client for this purpose?

James F. Graham:

No, Mr. Chief Justice.

Earl Warren:

Didn’t deny that at all?

James F. Graham:

No.

We didn’t argue that.

Earl Warren:

Why did you say it?

James F. Graham:

We — we argued the point that —

Earl Warren:

He was in jail, why did you want to get him out?

James F. Graham:

Yes.

Earl Warren:

Why didn’t you argue that was illegal for him to have (Voice Overlap).

James F. Graham:

Well, we — we argued that —

Earl Warren:

They should have said so.

James F. Graham:

Well, let me put it this way with you, Mr. Chief Justice.

We didn’t argue it from the standpoint if you want to say it of the Oliver case from that standpoint, no.

We said that he had no right to commit him because he wouldn’t let him have counsel, wouldn’t let him have the things that he was entitled to.

You see that I didn’t want to bring up that test.

I didn’t want to — I didn’t want to deny the right to go — of these people.

I didn’t want to make up a squabble to say that they didn’t want to testify.

They wouldn’t testify because we will testify.

We will testify, but we want counsel.

But the commitment was — was really part of your plan.

Anyway, we’ll —

James F. Graham:

I beg your pardon?

Your admittance, the formal commitment by consent is part of your plan to raise an issue, the ones you raised?

James F. Graham:

Well, it — it wasn’t the commitment that we asked to have.

You see, we — we were started out on a — on a friendly basis and it turned into a very antagonistic basis.

You see, they were never supposed to read the — the arrested and taken to jail or go down to the Sheriff’s office.

You’ll only get the habeas corpus proceeding, you have to go through that formality and what (Voice Overlap) —

James F. Graham:

Then — then, it turned in — then it — you see, it turned in from what you call a friendly procedure to have a — the statute constitutionality question from a friendly procedure to a very antagonistic procedure, not because the lawyers are involved but because that the Fire Marshal with his actions.

Hugo L. Black:

Is it the duty of your State Supreme Court if there’s obvious error in the habeas corpus case as (Inaudible) exercise of the power which often it does not have, notice it although it’s not specially raised?

James F. Graham:

Oh, yes, Mr. Chief Justice Black.

There is no — no question about that and they do, do it.

They — they will do it.

Our — our Supreme Court will do those things.

No questions about that or — in any of our courts will do that.

They — you do not —

Hugo L. Black:

They have asked you — they have asked you several questions.

Hugo L. Black:

They’ve been asking you about whether you would kind of get anything except the ruling on this point.

I suppose one of the things you want to do is to keep your clients out of jail, isn’t it?

James F. Graham:

Well, that is very essential.

Hugo L. Black:

That’s one of the —

James F. Graham:

That is one of the things.

Hugo L. Black:

(Voice Overlap)

James F. Graham:

But you see when you start — when I started out.

I have — we have to have — we have to do a purpose of protecting our clients and protecting the reputation as businessmen.

Hugo L. Black:

I understand that.

James F. Graham:

And it was most shocking.

I’ll say to you, to this Court.

I — I have never been shocked from a — from a standpoint of the point of law until I got into these Fire Marshal cases and I’ve never got into him until end of this case.

And when I found that the unlimited power that he has, he has — he has more power than really a court has in Ohio under the — under those statutes.

Of any of our Common Pleas judges has, he has more power under those statutes.

Now, why — how it ever got into the law?

I’ll never — I’ll never be able to tell this Court.

That —

Hugo L. Black:

I suppose — suppose if the grand jury, if your client has gone before a grand jury, they could have send him to jail until they brought him in Court and they told the Court questions that they were asked and had to go over each one of those questions or they send him to jail?

James F. Graham:

Well, Mr. Justice Black, if they have been subpoenaed before the grand jury in Muskingum County under this case — we’ve never been in any case at all.

They would have gone there and given whatever testimony that was —

Hugo L. Black:

But — but assuming if they had refused to do so, would — could anybody have put him in jail without taking him before a judge and give him a public hearing?

James F. Graham:

Oh, no.

No, no, Mr. Justice Black.

Earl Warren:

All right.