Raley v. Ohio – Oral Argument, Part 1: Morgan v. Ohio – April 23, 1959 (463)

Media for Raley v. Ohio

Audio Transcription for Oral Argument, Part 1: Raley v. Ohio – April 22, 1959 (175) in Raley v. Ohio
Audio Transcription for Oral Argument, Part 2: Raley v. Ohio – April 23, 1959 (175) in Raley v. Ohio
Audio Transcription for Oral Argument, Part 2: Morgan v. Ohio – April 23, 1959 (463) in Raley v. Ohio

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Earl Warren:

Number 463, Anna H.Morgan, Appellant, versus the State of Ohio.

Mrs. Furry.

Thelma C. Furry:

If the Court please.

This matter is before this Court for the second time.

In June of 1957, this Court vacated the conviction in this matter and remanded it to the Ohio Supreme Court for reconsideration in the light of the Watkins and Sweezy decisions.

The Ohio Supreme Court did reconsider and adhered to its original decision.

The first remark I want to make to this Court is that this is the first case in which the Ohio Supreme Court has ruled on the validity and scope of the Ohio Immunity Act relative to testimony before a legislative Committee although there has been an Immunity Act in Ohio since approximately 1872.

I want to also point out to this Court, that this is the first case involving contempt of a state legislative Committee in which an immunity statute has been involved that this Court has considered all other cases that this Court has considered involving immunity statute has involved grand jury.

And we all know the grand jury sessions are held in secret so that the testimony given there is not available to the public or to any other persons or agencies.

You must remember that this year was 1952, this was the year that Mrs.Morgan was called before this Commission.

She was the second unwilling witness called before the Commission in the State of Ohio.

The first and — and I want to point out to this Court that she appeared without counsel.

Mrs. Morgan was not represented before this Commission with counsel.

Mrs. Morgan was present during the testimony of the first witness, Mr. (Inaudible), who also appeared without counsel.

This is set forth as a matter of record in the record at page 62, the fact that she was present during the testimony in the questioning of Mr. Terrell (ph).

At the conclusion of Mr. Terrell (ph) testimony in questioning, Mr. Renner, counsel for the Commission, made this statement.

At page 11 of — of our brief, Mr. Renner said, ”Mr. Terrell (ph), you have the right to refuse to answer any question, the answer to which might incriminate — incriminate you.

Otherwise, you are required under the law to answer the questions that are put to you by this Commission,” which is a Commission constituted by the people of Ohio to make a city of Communism and Un-American Activities in Ohio.

That is also in the record of page 62 as part of the record the statement made by this, Mr. Renner.

The Commission commenced questioning this appellant, Mrs.Morgan, without making any preliminary statements as to the scope of its authority, its — the pertinencies of questions to be asked are any — anyway identifying its — its power.

Earl Warren:

Was a testimony of this other witness given on the same day?

Thelma C. Furry:

On the — I believe it was the morning session.

Earl Warren:

Yes.

She was present at the hearing?

Thelma C. Furry:

She was present at the hearing and the record so shows that she was present.

Earl Warren:

Yes.

Thelma C. Furry:

In — at page 62 of the record if the Court wants to verify that.

The second question after Mrs.Morgan was sworn, she gave her name.

The second question put to here was, “And where do you reside, Mrs.Morgan?”

On page 12 of our brief, her answer was, “I regret that I cannot answer your question under the Fifth Amendment of the Constitution because to do so would give your Committee an opportunity to incriminate me.”

Audio Transcription for Oral Argument, Part 2: Raley v. Ohio – April 23, 1959 (175) in Raley v. Ohio
Audio Transcription for Oral Argument, Part 2: Morgan v. Ohio – April 23, 1959 (463) in Raley v. Ohio

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Thelma C. Furry:

Now, prior to the time that this witness was called, on March the 31st of 952 — I’m looking at page 10 of my brief, at the second paragraph, stated.

There were hearing held by this Commission by the way, a secrete session that were not open to the public and which cooperating witnesses testified.

April the 1st, 1952 was the first public hearing, where — where these — where Mrs.Morgan appeared as an uncooperating witness.

The records will show that on March the 31st of 1952, when the hearings were held in Columbus, a person by the name of John DeLong testified at length.

He described his relationship with the appellant, Anna Morgan, told where she lived, stated that she was a member of the Communist Party and active in its organizational work.

This had been carried in the news.

This is also in the record at pages 1662.

This testimony of the DeLong had been in the newspapers and Mrs.Morgan was aware of the fact that she — that he had testified about her, her activities and her address.

Oh, I am corrected by counsel by saying that Mr. DeLong testified at a open hearing, it was not a closed hearing so that is why she was aware of everything that he had to say.

Felix Frankfurter:

In other words, you’re trying this question regarding the residence, matters that has actually been before the Committee — Commission indicating or at least to cast some light on what disclosure of residence might be.

Thelma C. Furry:

Yes.

I think, that the record will disclose if this DeLong testified and —

Felix Frankfurter:

Not in the secret recess of the — the Committee’s mind but what actually had been —

Thelma C. Furry:

Oh, yes.

Felix Frankfurter:

— and that’s what we correct —

Thelma C. Furry:

An open hearing.

This witness had testified about meeting that Mrs.Morgan’s home etcetera.

At the beginning of this session of Mrs.Morgan’s, she presented a prepared statement to the Commission in which she stated the following.

At page 57 in the record, Mrs. Morgan said this — about the middle of the page of 57, she said, “This Committee was paid to investigate so-called Un-American and subversive activities, but in all these months, it has fail to state what it considers Un-American or subversive.”

At the bottom of that page, she goes on and she says, “Who am I, you may ask?”

She answers with her statement, “I am just an average American house wife.”

And closes that paragraph by saying, “I now, present my sincere beliefs, and let this Committee and all interested citizens who pay this Committee judge me.”

Then she proceeds with her statement over to page 59 at this time which I want to read her closing paragraph, “Because this Committee conducts its hearings like an inquisition with no rules of evidence that victims are denied the rights which they would have in a dully constituted Court.

Therefore, I must claim the protection of the Fifth Amendment of the constitution of the United States and remain silent before this Committee.”

Felix Frankfurter:

That’s her statement, indicates why she didn’t think she needed a lawyer.

Thelma C. Furry:

Perhaps, I think she did quite well for herself.

She continue to just — to decline to answer the questions of the Commission and when she get about halfway through the questioning, Mr.– on page 4 or page 13 of our brief, you will see what Mr.– the Chairman, Mr. Renner said to her.

He said, “Mrs. Morgan, I should like to advice you under the Fifth Amendment, you are permitted to refuse to answer questions that might tend to incriminate you.”

Mrs. Morgan said, “Yes.”

The Chairman said, “But you are not permitted to refuse to answer question — answer questions simply for you own convenience, counsel may proceed.”

Audio Transcription for Oral Argument, Part 2: Raley v. Ohio – April 23, 1959 (175) in Raley v. Ohio
Audio Transcription for Oral Argument, Part 2: Morgan v. Ohio – April 23, 1959 (463) in Raley v. Ohio

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Thelma C. Furry:

Then following her refusal to answer each question, counsel proceeded to ask the next question.

Mrs. Morgan was never directed to answer any question.

Mrs. Morgan was never offered any immunity for answers.

Felix Frankfurter:

(Voice Overlap)

— You will — I don’t want to take you off your — your design of argument but what was said in the previous case.

It would arouse such curiosity, perhaps for my own peace of mind, we can take care of it right now.

Is it true that — that immunity from prosecution automatically applies in witnesses, which they must disavow so that there really is no legal basis for a claiming a privilege?

Thelma C. Furry:

I want to say to the Court, that is what the prosecutors had been arguing all included the Court —

Felix Frankfurter:

And cannot — cannot be used.

Thelma C. Furry:

I do not think that is true.

No, Your Honor and our courts in Ohio had never said so prior to this particular case.

Felix Frankfurter:

What is the basis for saying it must be in writing?

Is there anything in the statute (Voice Overlap) —

Thelma C. Furry:

The statute does say that, Your Honor.

We have —

Felix Frankfurter:

Have you printed the statute (Voice Overlap) —

Thelma C. Furry:

Yes we have it.

Felix Frankfurter:

Where is it?

Thelma C. Furry:

In our brief, it’s at page 6.

It was then called General Code 60 at the time of this hearing, it’s now revised to a different number but that is the precise language, the last paragraph on page 6 of our brief.

The —

Felix Frankfurter:

Exactly, as I read it.

And I know how perjurious it is to get meaning out of a statute from a statement and having been great relevance if you haven’t tried this.

The statute says nothing about the duty to claim the immunity, does it?

Thelma C. Furry:

No.

It does not.

Felix Frankfurter:

Except that it doesn’t apply to immunity.

Apparently, it doesn’t apply to fellow who wants to — we’ve got something, entitled to address that he wants to rid himself of and force his way before the Committee is at work.

Thelma C. Furry:

That’s correct.

Now, our — calling the Court’s attention to the record commencing at the bottom of page 49, that is the record of the actual proceedings before the Ohio Un-American Commission of the proceedings with Mrs.Morgan.

Audio Transcription for Oral Argument, Part 2: Raley v. Ohio – April 23, 1959 (175) in Raley v. Ohio
Audio Transcription for Oral Argument, Part 2: Morgan v. Ohio – April 23, 1959 (463) in Raley v. Ohio

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Thelma C. Furry:

Starting at 49 through page 56, they have the proceedings of questions and answers in their whole interrogation.

Above the middle of page 51, the type of question start out, isn’t it a fact type of question which indicated that this Commission was not trying to get information but was merely, asking about matters that they already had and was saying, “Isn’t it a fact that this is true?”

doing this in public open sessions where everyone could hear what the answers were.

At this time, I want to give my colleague an opportunity to further develop the arguments in this matter.

Earl Warren:

Mrs. Ginger.

Ann Fagan Ginger:

May it please the Court.

I think that the statement by Justice Frankfurter as to whether or not this witness needed an attorney can’t be decided very simply and the reasons for not having one can’t be assumed.

Felix Frankfurter:

Because I’m not — that was just a — my remark.

Ann Fagan Ginger:

This was in 1952 in Columbus, Ohio —

Felix Frankfurter:

That would be one of the claims, is it?

That — that she was denied counsel?

Ann Fagan Ginger:

No.

It is not a claim but it is — I’m sure that —

Felix Frankfurter:

As — as many to compliment of the —

Ann Fagan Ginger:

I understand but the problems of lawyers with a client in these kinds of cases, as you know, are very many.

And the fact that Mrs.Morgan stuck so strictly to the formula of words which she set forth in her statement I think has a significance, and the reason we mentioned in her statement that she referred to the — her inability to figured out what the Commission was doing is our — in our opinion, an effort by a layman without counsel to explain the lack of pertinency or here — why she would find it difficult to decide whether the questions asked of her were pertinent to any matter before the Commission.

The appellant in this case takes the position that this Court had a reason for remanding this case to the Ohio Supreme Court for reconsideration in the light of the Watkins and Sweezy decisions.

The case wasn’t remanded in the light of Bart, Emspak and Quinn and we don’t deny of course that the problem of direction to answer is extremely important but we also do not think that this case is limited to that issue.

The fact is that this case was argued before the Ohio Supreme Court but —

Felix Frankfurter:

Maybe we understood the scope of Quinn and the others better than the scope Watkins and the others.

Ann Fagan Ginger:

Well, I don’t say we get into that at least at this point of the argument but this case was argued before the Ohio Supreme Court for the second time, the day after the Emspak, Bart and Quin decisions were decided.

And the Court hadn’t had enough to read — read those decisions and ordered reargument.

And on reargument, the Court held that it was not necessary to have a direction to answer where you have an Immunity Act.

Felix Frankfurter:

But the Quinn — the Quinn problem was arguably under the hearings, was it, in the case?

Ann Fagan Ginger:

It was argued — it was argued —

Felix Frankfurter:

Originally.

Ann Fagan Ginger:

Originally and it was repeated on the hearing.

Felix Frankfurter:

Yes.

Ann Fagan Ginger:

This Court held in the Sweezy case that the responsibility for the proper conduct of a less — legislative investigating committee rest on the legislature itself.

And if the lack of any indications that the legislative — legislature wanted the information which the investigating body attempted to elicit must be treated as the absence of authority.

Audio Transcription for Oral Argument, Part 2: Raley v. Ohio – April 23, 1959 (175) in Raley v. Ohio
Audio Transcription for Oral Argument, Part 2: Morgan v. Ohio – April 23, 1959 (463) in Raley v. Ohio

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Ann Fagan Ginger:

Now, here, we have a stronger case.

This Commission was established in June of 1951.

It called what are known as friendly witnesses until the spring of 1952, and in April 1st, it called Mr. Terrell (ph) and immediately thereafter, called the appellant as a witness.

These were the first witnesses who declined to answer any questions.

A few months later, it called — I believe it was a few months later, it called the witnesses who were involved in the last case.

January 1st, 1953, that is nine months after it began asking questions of unfriendly witnesses, the Commission itself recommended its own demise and provided that there should not be a period in which Ohio could not investigate Un-American Activities and therefore proposed a new statue setting up a special Assistant Attorney General who would work on this problem.

And since they’ve realized that it would take a few months for this legislation to be passed, they recommended that their life be continued for six months.

In other words, here, we have a situation in which the Chairman of the Commission did not push the witnesses to answer questions which they felt might be incriminating, in which the Chairman and other members of the Commission did not direct witnesses to answer their questions in which the Commission itself evidently felt that it should not continue to exist because it not — did not serve a legislative function and in which the General Assembly abolished the Commission and instead, set up a procedure providing secret hearings for witnesses in this kind of case before a grand jury and it evidently accepted this Court’s decision in the Nelson case that this whole area has been preemptd by Congress because it has proceeded in no way since that decision, even under the special Assistant Attorney General.

So here, unlike Sweezy, we have a clear indication that there was an absence of authority in the Commission to attempt to elicit this type of information from the appellant.

This Court also held in the Sweezy case that the authorizing resolution must be studied in order to discover the amount of discretion conferred upon the investigating Committee and its safeguards can be nullified when the Committee is investing with a broad and ill-defined jurisdiction.

There is nothing in this resolution establishing the Un-American Activities Commission of Ohio which can be considered narrow in scope.

The statute is set forth in the appendix to the brief of appellant, and you can see from the wording that it was written with the same broad sweep as that involved — involved Watkins and Sweezy.

This Commission was to investigate all facts relating to the activities of person groups, the persons groups and organization whose membership includes persons who have as their objective or maybe suspected of having as their objective the overthrow or reform of our constitutional governments by fraud, force, violence or other unlawful means.

All facts concerning persons, groups and organizations known to be or suspected of being dominated by or giving allegiance to a foreign power or whose activities might adversely affect the contribution of this state to the national defense, the safety and security of this State, the functioning of any agency of the State or national government for the industrial potential of this State.

Surely, it would be hard to find a statute written in much broader language.

This appellant as I mentioned, objected to the scope of this inquiry within her ability as a layman and doing it in writing in advance at the hearing by saying that no one could know what Un-American or subversive meant from the work of the Commission up to the point at which she was called as a witness.

In addition, no statement was made at the opening of the hearing concerning the scope or purpose of the Commission or of that particular hearing.

And in fact, the questions asked of this witness were not pertinent to any matter properly before a state legislative investigating committee.

Some of the questions were purely preliminary.

For example, “Where do you reside?

Are you a citizen?

How long have you been a resident of Franklin County and where are you employed?”

He sound like purely preliminary questions.

As to the question of, “what — where do you reside?”

My colleague has already pointed out that the previous day, a witness had gone into great length about, where the — where my client resided and meetings of the Communist Party had been held at her home.

In terms of her employment, many of the questions related to an allegation that she had been employed by the Community Party of Franklin County or the State of Ohio.

As for the other questions, these were purely preliminary.

Well, it maybe true that in a court of law as Mr. Justice Frankfurter pointed out, a witness cannot merely shout Fifth Amendment and proceed to not answer questions.

In a legislative investigating committee which is not a court, these questions cannot, we believe, has been — the answers could not possibly have been of any help to the Ohio General Assembly in framing legislation.

And therefore, they were purely preliminary.

Audio Transcription for Oral Argument, Part 2: Raley v. Ohio – April 23, 1959 (175) in Raley v. Ohio
Audio Transcription for Oral Argument, Part 2: Morgan v. Ohio – April 23, 1959 (463) in Raley v. Ohio

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Ann Fagan Ginger:

If —

Felix Frankfurter:

At the — towards this ordinance, and their still purely preliminary, then they can’t be much in place about answers.

Ann Fagan Ginger:

Well, the — I think before a legislative investigating committee, if they were purely preliminary, then the Chairman who did not direct that they be answered —

Felix Frankfurter:

Directed information.

Ann Fagan Ginger:

— and the Committee which did not urge that they were important couldn’t have carried very much and certainly, the legislature did not indicate that they were interested in this kind of thing on the contrary.

As we mentioned in our brief, they specifically say, we’ve had a lot of criticism because we have asked questions in public.

Felix Frankfurter:

Of course, if they were — if the question wasn’t read or if there wasn’t explicit demand to answer then it doesn’t matter whether they’re preliminary or (Voice Overlap) —

Ann Fagan Ginger:

Well, I think that’s true.

Felix Frankfurter:

— thing as subsidiary.

Ann Fagan Ginger:

We also maintain that the Commission did not have any legitimate function from the time it was founded.

Felix Frankfurter:

But even — even the legislative commission — committee — well, I should say even more of legislative committee than the Court, must get underway.

Ann Fagan Ginger:

We maintain that this Committee — Commission had been underway for some period of time.

In the previous day, had asked the witness where this client — where this appellant lived and what she had done, and if they were merely confirming information which they already have, if they were acting as a cross-examining body rather than as a body seeking information for a legislative purpose.

Felix Frankfurter:

I wish your extent as for a legal instructions were commonly accepted for all purpose.

Ann Fagan Ginger:

There were no questions which were asked of this appellant which related to any danger to the State of Ohio from overthrow.

And all the questions which were not preliminary related to matters which were involving political activity which is protected by the First Amendment.

All the questions which were not preliminary related to the field of subversive activity on a national scale, a field which the Federal Government has wisely preempted.

And in your Nelson decision, you point out the problems that would arise if you had separate investigation into subversive activities by each State.

Felix Frankfurter:

(Inaudible)

Ann Fagan Ginger:

In addition to which all of the questions which were not preliminary, were within one area.

And under the Yates decision, where a witness draws the lines of refusal by declining to answer within an area, the prosecutor cannot multiply contempt by further questions in that area.

This witness was indicted for 37 counts of contempt and all of the counts from six, I think, on related to the single area a Communist Party activity.

This Court held in the Sweezy case that legislative investigative committees can encroach on the constitutional liberties of the individual.

And that unquestionably, there was such an invasion of Sweezy’s liberty in the area of political expression.

In the Sweezy case by the Attorney General of New Hampshire, an area in which Government should be extremely reticent to threat.

And the Court said, “We do not now conceive of any circumstances wherein a state interest would justify infringement of rights in these fields.”

But you continued on that point to say that you didn’t have to reach this question because the New Hampshire Supreme Court had recognized there was nothing to connect the questioning of the petitioner with the fundamental interest of the State in preventing its course of an overthrow.

Now, we maintain the facts here are very similar.

The statute itself establishing the Commission required the Commission to invade the appellant’s liberty of political expression.

It required that questions be asked which could not but affect appellant and other citizens of Ohio in their free exercise of their rights under the First Amendment.

Audio Transcription for Oral Argument, Part 2: Raley v. Ohio – April 23, 1959 (175) in Raley v. Ohio
Audio Transcription for Oral Argument, Part 2: Morgan v. Ohio – April 23, 1959 (463) in Raley v. Ohio

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Ann Fagan Ginger:

And the questions could not have provided the Commission or the legislature with any new facts relating to possible overthrow of the Government of the State of Ohio.

They rather dealt into appellant’s pass conduct in order to corroborate information already in the possession of the Commission.

In other words, we maintain that the statute establishing the Commission was unconstitutional as in violation of the First Amendment rights guaranteed to this witness through the Due Process Clause of the Fourteenth Amendment.

Now, we come to the problem which the Ohio Supreme Court faced.

They were not willing to discuss the question of the First Amendment rights either before Watkins and Sweezy were handed down or thereafter, nor would they prepare to discuss the points that this Court had made on the responsibility of the legislature over investigation.

No opinion was written after the argue — reargument on remand from this Court.

Nor is the Court willing to discuss the problem of the broadly worded statute and that there was no method for determining the pertinency of the question.

None of these things where ever discussed by the Ohio Supreme Court in any written opinion.

They merely affirmed the conviction without opinion.

They therefore rested their whole opinion upon the fact that there is an Immunity Act in the State of Ohio and that the statute does not require a direction to answer.

And that therefore, they were not found by this Court’s decision in Emspak, Bart and Quinn which said that in a federal case, there must be a direction to answer.

I think it is significant that this is the first case in which a State seeks to have this Court affirm a conviction for contempt in the absence of any direction to answer.

In the Regan case for example, there was a direction to answer.

The United States statute in the Emspak, Bart and Quinn case says nothing about a direction to answer no more than does the statute in the State of Ohio.

But this Court felt that there must be a clear disposition of the witness’ objection as a prerequisite to prosecution for contempt.

While it is true that the State of Ohio is governed by the Supreme Court of the State of Ohio in the interpretation of its statutes and we cannot claim that there is a violation of due process within the meaning of the Ohio Supreme Court or the Ohio constitution by fair which direct to answers since the Ohio Supreme Court says this is not required.

We do claim that there is a denial of the right of the appellant under the Fourteenth Amendment Due Process Clause when you say to her in effect after the fact, “You should have answered because you would — were clothed with immunity from the time you walk into the hearing room.

She had a right to a clear-cut choice between refusing to answer on the basis of the privilege against self-incrimination and answering and being clothed with immunity from prosecution by the State only in an area where prosecution by the Federal Government was not only possible but probable in that time at the period.

The Court held — this Court held in Emspak, Bart and Quinn that their giving a direction to answer is a minimal procedural requirement.

And that failure to do so is the defect in laying the foundation for a prosecution.

We feel that the same situation applies here.

It cannot be assumed that the witness would have given the same answer if she had been given a clear-cut choice, it’s impossible to know.

The fact that she wrote statement and handed it to the Commission at the beginning of the hearing, does not mean that if, the Chairman of the Commission had said, “Now, you must understand, Mrs. Morgan, that if you do not answer these questions, you will be cited for a contempt and you must understand it if you do answer them, you cannot be prosecuted by the State of Ohio because we’re granting you with immunity.

Felix Frankfurter:

You’re suggesting it should not be opened to reason?

Ann Fagan Ginger:

Well, I’m suggesting that there is no reason to believe that she wouldn’t have been.

And I think the fact that she stuck so closely to this formula of words in answering each question, indicates that she was without counsel that she had thought the thing out in advance and that she was not capable, she didn’t feel that she would be capable of finding a new formulation during the course of the hearing.

I don’t think it, that here rigidity in answering indicates a rigidity in her ability to reason but rather a fear of this hearing and of her, the fact she wasn’t a lawyer and that she was dealing with lawyers.

Certainly, it is impossible to know what the witness would have done if she had directed to answer since she wasn’t directed to answer.

And it can’t be said that it wasn’t until after the 12th question that in the indictment — that the Chairman told here she could use the Fifth Amendment.

She have sat in a hearing room while Mr. Terrell (ph) was interrogated.

Audio Transcription for Oral Argument, Part 2: Raley v. Ohio – April 23, 1959 (175) in Raley v. Ohio
Audio Transcription for Oral Argument, Part 2: Morgan v. Ohio – April 23, 1959 (463) in Raley v. Ohio

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Ann Fagan Ginger:

And Mr. Terrell (ph) had been told by the Chairman that he did not have to answer the question if it might incriminate him.

And certainly, she listened to this I’m sure with considerable interest and was affected by this from the first question forward.

It cannot be held either that the Immunity Act in Ohio is sufficient to erase the privilege.

There can be no contention that a — an immunity granted by the State of Ohio even if it did clothe her with a complete immunity from prosecution in the State of Ohio from the moment she walk into the room.

And even it is assumed that this immunity took effect without anything being said about its existence and without any mention being made to her that it was being granted to her.

It cannot be claimed if immunity erased the privilege within the language of this Court in the Olman case because we have in this country two sovereignties that act upon each individual at any given moment.

And in this case, the United States had taken an active interest in the prosecution of the person’s forced subversive activities.

You can’t claim that a — an immunity granted by the State of Ohio would have had any effect whatever in a prosecution against this witness under federal law.

And therefore, it is untrue to suggest that the Immunity Act had been applied at all to her, erased here privilege against self-incrimination.

Now, this Court has never heard a case in which the double — double sovereignty question arose in terms of immunity where there was a legislative investigating committee involved.

All of the cases before this Court, I think, from Brown against Walker, to whole list, involved grand jury proceedings.

And there’s a fundamental difference between a grand jury and a legislative investigating committee.

In a grand jury, the proceedings are secret and there would be no way for a prosecutor in another jurisdiction to know what is said in the grand jury minutes.

Unless there is illusion between the state and federal prosecuting attorneys which one would not assume.

Therefore, the decisions which this Court has handed down, Jack against Kansas, Brown against Walker, United States against Murdock and the others including Knapp against Schweitzer do not settle the matter here.

The fact is that wherever there has been an actual livelihood or probability of prosecution in the second jurisdiction, this Court, as Justice Holmes said one way or the other has not — has not found the person guilty of contempt for refusal to answer and that was true in Bowman against Bates, it was construing United States against Saline Bank and then other cases in the lower courts.

The — you cannot read the fact in these cases, Jack against Kansas and the others and separate them without separating them from the theory profoundrd because in none of those cases was there the kind of threat of prosecution in the second jurisdiction, which existed in this case.

This was April of 1952, there were Smith Act prosecutions going on throughout the United States and there were also state prosecutions going on for the same kind of activity.

Under State of Ohio had at one time, prosecuted a witness under its State Criminal Syndicalism Law.

So that there was such a law on the books and it was known to the prosecutors.

And it cannot be assumed that the witness here before the State Committee was immune from such federal prosecution or that the danger was in any way improbable or they —

Felix Frankfurter:

Mrs. Ginger, I understand what you’re urging is subsequent prosecution in another jurisdiction, is that right?

Ann Fagan Ginger:

That’s right.

Felix Frankfurter:

Therefore, I should say that the difficulty would arise if such subsequent prosecution were undertaken rather than taking away from the State of Ohio, it’s up to that time unquestioned, I mean its power to elicit the testimony exchange for not prosecuting with any (Inaudible)

Ann Fagan Ginger:

I don’t think there is (Voice Overlap) —

Felix Frankfurter:

After that time just forgetting the prosecution in another jurisdiction.

That certainly cannot be denied to or hire.

The difficulty arises as argue of the threat that in another jurisdiction by making this — by making this compelled disclosure in exchange for non-prosecution in Ohio, you may run into prosecution in the United States.

And so I suggest that — that the evil is the prosecution in the United States and not in the grant of immunity in Ohio.

Ann Fagan Ginger:

Well, I don’t think despite the brief by my worthy opponent that the sovereign State of Ohio has ever had the jurisdiction to ask a person questions or to prosecute them for something they may have done against the United States Government.

Audio Transcription for Oral Argument, Part 2: Raley v. Ohio – April 23, 1959 (175) in Raley v. Ohio
Audio Transcription for Oral Argument, Part 2: Morgan v. Ohio – April 23, 1959 (463) in Raley v. Ohio

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Felix Frankfurter:

But that’s a different problem.

Ann Fagan Ginger:

I —

Felix Frankfurter:

That’s a different problem, isn’t it?

Ann Fagan Ginger:

No, I don’t thinks so.

I think that the — that the decision in the Nelson case which came down after this questioning occurred represented sound thinking on the part of the Supreme Court of Pennsylvania which had considered this matter for sometime and which had considered also the statements by the United States officials, both the President and the Attorney General —

Felix Frankfurter:

If your — this argument means that Ohio can’t deal with the matter because Uncle Sam is taking it over.

Ann Fagan Ginger:

That’s correct, but I would go further and I would say that on any matter in which the federal and state jurisdictions can both act upon an individual, you cannot erase the privilege against self-incrimination unless the person is clothed with immunity from prosecution in both jurisdictions and that any other reading of the Immunity Act or of the constitution would result in the denial of due process to the individual.

Felix Frankfurter:

Well, the difficulty isn’t that he’s denied privilege of self-incrimination but that he’s going to be prosecuted again.

And therefore, if your argument is valid, he can’t be prosecuted again because that would be a denial of due process.

Ann Fagan Ginger:

Yes.

But I think —

Felix Frankfurter:

To have him — to have him prosecuted by Uncle Sam out of testimony extorted by him when he had no means of withholding it.

Ann Fagan Ginger:

I think, that’s true but I think you would agree that it is a very — it would take a witness with more that one lawyer to feel at ease in answering a question before a state legislative committee knowing that this testimony must by law be turned over to a federal prosecutor and the — with no assurance which —

Felix Frankfurter:

It says that it must by law be turned over.

Ann Fagan Ginger:

The statute requires disclosure —

Felix Frankfurter:

Well, that’s a matter of — that’s maybe a different ground of attack, that — that the State lent itself as a latency of the Federal Government.

Ann Fagan Ginger:

That’s right.

Felix Frankfurter:

That’s still another job?

Ann Fagan Ginger:

All right.

Well, I’m now stating it —

Felix Frankfurter:

And we don’t want to make it too large out of legal arguments.

Ann Fagan Ginger:

This case, it may seem odd to say has been in the courts for seven years.

Well, it may seem simple to settle it on the question of direction to answer and we are not suggesting it shouldn’t be settled on that point.

We’ve argued the case four, five times before the Ohio Supreme Court and we are not prepared to omit any point since that Court has seemed fit to decide it so many times against us.

I think, that —

Felix Frankfurter:

My questions presuppose that your argument brought the questioning, and therefore, it’s not to be rejected out of out of fairness.

Ann Fagan Ginger:

Well, we — we take many positions on immunity at some of which we believe, you Mr. Justice Frankfurter, might agree with us, some which we assume you may not agree with, but we took —

Felix Frankfurter:

(Voice Overlap)

Ann Fagan Ginger:

That’s correct.

But on the question of double sovereignty, your word is one that we are concerned with along with the other members of the bench because you have written about it so extensively.

Audio Transcription for Oral Argument, Part 2: Raley v. Ohio – April 23, 1959 (175) in Raley v. Ohio
Audio Transcription for Oral Argument, Part 2: Morgan v. Ohio – April 23, 1959 (463) in Raley v. Ohio

del

Ann Fagan Ginger:

And the — we have several positions on the immunity question.

One is that she was never directed to answer and affords no other rights were at any given a moment.

One of this is not the same as Knapp against Schweitzer because that was a grand jury where the proceedings were secret and here there was a great likelihood of prosecution by the Federal Government.

We also say that the statute required disclosure and liaison between the State to federal officials as to any matter testified to.

And we also say that fundamentally, the immunity granted by one jurisdiction is not sufficient unless it covers in the tread of prosecutions from the second jurisdiction which also could prosecute for the same crime.

The State of Ohio has concerned itself with the question of the — its sovereignty and seems to be concern that it is in danger of losing its sovereignty if this Court reverses the conviction of appellant on these facts.

And yet, this is the first time that Ohio has had to consider the legislative Immunity Act for the problem of contempt in the face of this Immunity Act.

When Mr. Justice Frankfurter earlier asked what the Immunity Act provided or provide case law at this point, there has never been a prior case in which this issue arose and there has never been a case of contempt of the Ohio legislature or the Ohio legislative investigating committee involved in any field other than corruption in Government.

And I think this speaks well for the sovereign State of Ohio.

But until 1952, they never got into a field of legislative inquiry outside the field of corruption in Government.

It is important of course that in Ohio, the investigating committees which have operated have in the past not attempted to question private individuals of particularly about their political beliefs or actually about anythingelse.

Earl Warren:

We’ll recess now, Mrs.–

Ann Fagan Ginger:

Yes, sir.

Earl Warren:

— Ginger.