United States v. Hvass

PETITIONER:United States
RESPONDENT:Hvass
LOCATION:Alabama State Capitol

DOCKET NO.: 92
DECIDED BY: Warren Court (1957-1958)
LOWER COURT:

CITATION: 355 US 570 (1958)
ARGUED: Jan 27, 1958
DECIDED: Mar 03, 1958

Facts of the case

Question

Audio Transcription for Oral Argument – January 27, 1958 in United States v. Hvass

Earl Warren:

United States of America versus Charles Hvass.

Mr. Spritzer.

Ralph S. Spritzer:

Mr. Chief Justice, Your Honors.

This is a direct appeal pursuant to the Criminal Appeals Act from a judgment of the Northern — of the District Court for the Northern District Court of Iowa which dismissed an indictment for perjury.

This Court has postponed the question of its jurisdiction to this hearing on the merits.

Before getting to that threshold jurisdictional issue, it is of course necessary to state the essential facts and particularly the basis of the District Court’s decision.

Mr. Hvass, the appellee in this case is an attorney, a member of the Minnesota Bar.

He is not a member of the Iowa Bar or of the Federal District Court Bar in Iowa.

He wished to participate in two unrelated personal injury actions, both of them pending in the Northern District of Iowa as attorney for the respective plaintiffs on those cases.

Like most District Courts, Iowa has local rules relating to the admission of attorneys who are not members of the local bar.

The applicable rule in this case is called Local Rule 3 and it is set forth at pages 2 and 3 of the Government’s brief.

The first paragraph of that rule, the Court will note, contains provisions which are fairly common.

For example, the Out-of-State Attorney must associate with himself a resident attorney for purposes of receiving process and the like.

And it has a provision that the Court may call for a showing of satisfactory moral character.

The second paragraph which is more particularly involved here, relates to a special category of cases to personal injury cases in which the Out-of-State Attorney whishes to represent an Iowa claimant who has suffered injury in Iowa.

Now, as to this category of actions, the Court has imposed by its rule more detailed, fuller requirements.

That second paragraph provides that the Court may require the Out-of-State Attorney to show and I quote here from the rule, that the connection of the said attorney with the case was not occasioned or brought about in violation of the standards of conduct specified in Rule 8 here.

Now Rule 8 to interpolate adopts for the District Court in Iowa the provisions of the Canons of Professional Ethics of the American Bar Association.

So the apparent purpose of this second paragraph of the rule in a nutshell is to enable the Court to deal effectively and promptly at the very outset of a litigation with any possible instance of ambulance chasing by an attorney seeking, believed to participate in a case in that court.

Felix Frankfurter:

This is an ordinary diversity negligence case not an FELA case.

Ralph S. Spritzer:

It isn’t a — this happened to have been FELA cases.

So the —

Felix Frankfurter:

Yes.

Ralph S. Spritzer:

— rule would apply equally in a diversity situation.

Felix Frankfurter:

I can see (Inaudible).

Ralph S. Spritzer:

The — the rule is not restricted, Your Honor to either category.

This brings me to the last sentence of the rule which is particularly important here.

The Court and I’m reading from the Rule at page 3, “As a part of said showing may require the plaintiff and the said attorney to appear and be examined under oath.”

Pursuant to this rule, Mr. Hvass sought leave of the Court to participate in the two personal injury cases to which I previously adverted.

The Court then acting on its own motion set his application down for a hearing.

Ralph S. Spritzer:

It also directed the United States Attorney as an officer of the Court to make an inquiry and to present to the Court any relevant facts bearing on the application.

Hearings were thereafter duly held.

Mr. Hvass at that hearing or those hearings testified under oath.

Felix Frankfurter:

So far as the record shows Mr. Spritzer was this order of the court sua sponte?

Ralph S. Spritzer:

The opinion suggests that it was and I think there is no issue that in fact that was the case.

The Court does not have before it as part of the record here, the full transcript of the hearing because as I shall elaborate this case comes up on a motion to dismiss the indictment.

Do you know whether the court does this as a matter of course in reference to all negligent actions (Inaudible)?

Ralph S. Spritzer:

This second paragraph of the Rule went into effect only a short time before this application was filed and hence there had been at that point no regular practice.

I can say to the Court that at the same time that Mr. Hvass’ application for leave to participate was heard.

There was a hearing involving another attorney who sought leave to participate in another case.

Charles E. Whittaker:

Do I correctly — did I correctly understand you to say that Mr. Hvass, pursuant to this rule, had filed an application to the court for leave to appear and represent his client?

Ralph S. Spritzer:

That is correct, sir.

Earl Warren:

It’s a question that (Voice Overlap) —

Charles E. Whittaker:

(Inaudible)

Earl Warren:

Is the validity of this Rule an issue here Mr. Spritzer?

Ralph S. Spritzer:

I think not, Your Honor.

I think the sole question is as to the reach of the federal perjury statute.

Hugo L. Black:

Why is it not an issue if this is not authorized by law, it wouldn’t be a hearing that was lawfully authorized.

Ralph S. Spritzer:

Well, I’d say it’s not an issue, Your Honor for this reason.

The District Court holding is not that this is an invalid rule.

The District Court did not doubt that it was within the District Court’s rule making power to prescribe the criteria for admission of attorneys who wished — leave to participate.

What the District Court held was assuming the rule is valid, is this the kind of rule to which the federal perjury statute has application?

Hugo L. Black:

He held, isn’t it, that it was not a law of the United States.

Ralph S. Spritzer:

That is correct.

He said — in this sense only, Your Honor.

He said it’s not a law of the United States in the sense that that term is used in the perjury statute.

He did not indicate that he thought the rule was invalid or unauthorized.

Hugo L. Black:

The rule adopted before or after this lawyer filed these lawsuits?

Ralph S. Spritzer:

Oh, before, Your Honor.

The Rule was in effect before this hearing took place.

Hugo L. Black:

I’m not talking about the hearing, before the lawyer filed a suit.

Ralph S. Spritzer:

I think the suit had been filed before the Rule and the application was filed after the Rule.

Hugo L. Black:

The court adopted the rule, how long after this lawsuit has occurred?

Ralph S. Spritzer:

I think it was four months here, Your Honor.

Felix Frankfurter:

May I (Inaudible) on this.

Ralph S. Spritzer:

Yes.

Felix Frankfurter:

This colloquy is out by asking you whether it is your position that the validity of the Rule was not contested the law either he’s not contested here.

I don’t know which.

I haven’t looked at the brief and that the case rest on the ruling by the District Court that law or the lower laws of the statute perjury —

Ralph S. Spritzer:

A law of the United States.

Felix Frankfurter:

— a law of the United States.

Ralph S. Spritzer:

— of United States.

Felix Frankfurter:

— means either statutory law or I suppose a regulation carrying out and allow the delegation by a statute.

Ralph S. Spritzer:

I — I think that that is the only question here because I think that is the only question that was decided by the District Court and I think it’s the only question under the Criminal Appeals Act accordingly which this Court would have jurisdiction to decide.

I had adverted to the hearings to the fact that Mr. Hvass testified.

There was also a testimony by various other witnesses.

And at the conclusion of the hearings, Judge Graven who is the presiding judge of the Northern District of Iowa, denied Mr. Hvass’ application for leave to participate in the two cases.

Some months thereafter a grand jury returned an indictment for perjury which charged that various statements made by Mr. Hvass in his sworn testimony, statements which denied solicitation, maintenance and champerty were false.

The day after the indictment was returned, Judge Graven removed himself from all further proceedings in the perjury case presumably because he had formed or at least might be thought to have informed an opinion as to Mr. Hvass’ credibility by virtue of having presided at this qualification hearings.

And he designated Judge Mickelson, a visiting judge from South Dakota to handle all further proceedings in the case.

(Inaudible)

Ralph S. Spritzer:

He is the presiding judge of the district.

In fact, he is the only judge in that district.

And the order indicates that it was by the district judge, the assignment.So let me refer to the docket entry if I may.

(Inaudible)

Ralph S. Spritzer:

I don’t know that it was in the form of an order.

(Inaudible)

Ralph S. Spritzer:

It is a Court order.

The docket entry appears at Record 12.

It does not state who entered the order.

Ralph S. Spritzer:

Counsel for appellee informs me that it was by the chief judge of the circuit.

(Inaudible)

Ralph S. Spritzer:

I think — yes.

I think that’s correct.

Our record does not give the order itself but merely a docket entry.

Now, the basis of the dismissal is summed up in this case by a single sentence of the district judge’s opinion.

He himself undertook to state in a sentence what he was holding.

At Record 10, he stated and I quote, “I simply hold,” — I’m reading toward the bottom of that page, next to the last paragraph.

“I simply hold that Rule 3 under which the defendant took his oath is not such a law of the United States as was intended by Congress to support an indictment for perjury.”

Now, we say to begin with that such a decision plainly rests upon an interpretation whether that interpretation be right or wrong of the statute upon which the indictment is found.

Felix Frankfurter:

Mr. Spritzer, may I point out that the sentence immediately proceeding is an expressed (Inaudible) that he is passing on the Rule.

Ralph S. Spritzer:

That itself, Your Honor, yes.

He confines himself solely to the proposition that this kind of a rule wasn’t encompassed by the federal perjury statute.

Now, if that so as we think the opinion requires one to conclude, the case is plainly one without more which this Court has jurisdiction to review on direct appeal under the Criminal Appeals Act.

Hugo L. Black:

That would leave the validity of a law still open.

Ralph S. Spritzer:

I assume that any other defenses maybe raised in the District Court, yes, Your Honor.

I think the only question here and the only question which the Court could ask upon is the question of the correctness of the interpretation of the federal perjury statute by Judge Mickelson.

Hugo L. Black:

You would say that at this type of case, they do not have a right to rely on any grounds for affirmance which the record shows and to wit that the statute is not — the rule is invalid.

Ralph S. Spritzer:

I would say, Your Honor that if —

Hugo L. Black:

That it have to be raised in the lower court.

Ralph S. Spritzer:

And passed upon more than raised.

I think it has to be decided.

Hugo L. Black:

— could not affirm here on that ground.

Ralph S. Spritzer:

No, sir.

I don’t think, Your Honors would have jurisdiction under the Criminal Appeals Act if they were an independent basis of decision.

Felix Frankfurter:

It’s the latter rather than what is available to him.

Ralph S. Spritzer:

Yes, sir.

Felix Frankfurter:

What — what you said last is that there is a limitation upon this Court’s power to review — the scope of this Court’s power to review an influence to which the question was he couldn’t and order a case relying in his problems in a way is this Court’s jurisdiction.

Ralph S. Spritzer:

Yes, I think in the — in the Borden case in 308 United States.

This Court indicated that it would have jurisdiction under the Criminal Appeals Act only of the issue of construction of the statute upon which the indictment was founded and that is in fact, there had been another basis of decision by the District Court.

Ralph S. Spritzer:

The case would have had to go to the Court of Appeals rather than directly here.

Now on the merits, the question of course is whether Judge Mickelson’s interpretation of the perjury statute is a permissible one.

We say that there is no sound reason even if one were writing on a clean slate here and one is not, for holding the perjury statute to be restricted to proceedings which are conducted pursuant to a legislative act as this Court had occasion to note in the Ludenia Howard case on the last term.

The case not involving perjury to be sure but the Federal Black Bass Act, A rule or regulation may constitute a law within the meaning of a statute.

There, a regulation of the Florida Game Commission was deemed to be a law of the State of Florida for purposes of applying a federal statute.

And so far as the federal perjury statute itself is concerned, this Court decided as long ago as Caha against United States, a case that’s decided in 1894.

That one may commit perjury when the oath is administered pursuant to a valid administrative regulation and that was the case this, as the Court will recall, which arose under one of the Homestead Act.

The Homestead Act had given a broad authority to the land department as it was then called to adopt procedures to settle disputed claims as to land and the land department had proceeded to adopt a scheme of regulations, rules of practice for disposing of context questions as to who among various claimants had made the valid homestead entry.

And Mr. Caha was a claimant in such a case heard before a local land officer.

The land officer got his powers only pursuant to an administrative regulation.

He was indicted for having given false testimony during the course of that proceeding before the local land officer and he challenged the indictment on the ground that the act of Congress did not provide for the administration of an oath.

And this Court unanimously sustained the indictment.

It held the regulation was valid as within the broad delegation of the statute and it held further that since the local land officer, acting under a valid regulation, constituted a competent tribunal, the perjury statute heretofore supply.

Of course the — the test under the perjury statute which is set forth at page 2 of our brief, the test for present purposes is whether a law of the United States authorized an oath to be administered.

Now we take it that there can be no serious question that a rule of Court within the rule making authority of the District Court stands on a footing which is not inferior to an administrative regulation.

Felix Frankfurter:

Would you — would you say you indicate whether you think — putting your side for the moment, purpose of this argument, the validity of this rule that there is any difference between a rule of admission to a District Court and the oath required under it and the rule of admission to this Court and an oath required under it.

Ralph S. Spritzer:

I would think there would be no significant difference.

I think that so long as the rule is one which falls within the realm of the Court’s business but then the Court may administer an oath.

Certainly judges and clerks of Court have power to administer oath than to take acknowledgements.

That power we think extends to all cases to which the judicial power extends.

In this case, in addition to the general power of a court to administer an oath, the rule itself explicitly provided for that procedure.

In short, we believe that the broad language of the perjury statute does not admit of any exception for proceedings which are conducted pursuant to rule of court or pursuant to administrative rule.

Charles E. Whittaker:

May I ask (Inaudible)

Ralph S. Spritzer:

Yes, sir.

Charles E. Whittaker:

Do you consider this proceeding to have been a case within the meaning of the perjury statute, a case?

Ralph S. Spritzer:

Yes, I — I do, Your Honor.

I don’t think here, we’re talking about case or controversy in the — in any constitutional sense.

Certainly, we have a wide variety of decisions in which perjury indictments had been sustained arising out of all kinds of administrative matters in the proceedings.

Matters like filing of a tax return, a false statement in an application for a pension, a false statement by a selective service registrant, a false statement by a surety on a bail bond before the United States Commissioner.

Indeed this Court in Novak against United States had a perjury case which involved false statements in a verified tax return.

Ralph S. Spritzer:

So I think that the statute covers any type of proceeding so long as the administration of the oath in that proceeding is authorized ultimately by federal law.

You mean in any cases that have been read in any instance.

Ralph S. Spritzer:

Or in any matter, yes, Your Honor.

And I — I think one is compelled to that reading by many decades of decision involving as I say a great variety of cases in which the matter came up out of the course of administrative proceedings which did not involve an adjudicatory matter.

It might be a mere filing of a report by a business organization with — with a regulatory commission.

Such matters are brought to the perjury statute in play.

So I think our question in all of these cases is simply whether a law of the United States authorized and oath to be administered and on that basis, we see no possible exception for this case from the rule of this Court which is I say dates back to the Caha decision.

Earl Warren:

Mr. King.

Warren B. King:

Mr. Chief Justice, associate justices and counsel.

Might I address myself before I state our position to a few questions?

Mr. Justice Frankfurter compared the oath required in the Iowa Court to the oath required here, I believe, under Rule number 4 or number 6 I think it is, you do not require for an attorneys to have an oath and for many, many years the State of Iowa likewise did not require an oath.

This amendment was enacted in August of 1955 not to go in effect until the first day of October 1955 and in answer to Justice Whittaker’s question, the defendant did not apply but he was sent an order by the Court stating that if you care to try a case, you shall appear and call his attention to the new requirement which is the only requirement in the United States of America.

All other states grant committee in accordance with the prior law that was in existence.

This is the new requirement and it was the first time and the first session of courts so they were ordered to appear.

In answer to Mr. Justice Black’s question, the two —

Felix Frankfurter:

Before you go to the next question, do I understand you to say that we do not require an oath —

Warren B. King:

That’s —

Felix Frankfurter:

— the implication of an affirmation will do?

Warren B. King:

It’s my understanding that that is true.

Felix Frankfurter:

Well, it’s — I don’t know what it is.

The person who conscientiously cannot take an oath for the firm will be outside of the perjury statute?

Warren B. King:

I would say, Your Honor that your rule says specifically Rule number 6 that the oath does not require.

Felix Frankfurter:

Like for a test of foreign counsel.

Warren B. King:

That’s correct.

Felix Frankfurter:

None have talked about that but the people who are admitted?

Warren B. King:

You’re correct.

Felix Frankfurter:

It’s a different story what the rule — what the —

Warren B. King:

You’re correct.

Felix Frankfurter:

— that’s a different question as well as the question of policy or if you plead the validity of requiring another oath by foreign counsel not admitted.

I was asking whether my question was directed and I was not suggesting, I was asking whether the oath required by counsel were admitted this morning taking on the basis of — of allegations they have to make (Inaudible) information there furnished whether that’s either is not a basis on the law under the perjury statute, the basis for a perjury charge.

Warren B. King:

If it — it would not be a basis for perjury charge because it must have a clear legislative base and the only —

Felix Frankfurter:

All right.

I — I understand that argument.

Warren B. King:

All right.

Now the —

Felix Frankfurter:

— but I was wondering whether there is any difference between the oath that I took when I was admitted to the District Court of New York and the oath that I took when I was admitted to this Court from the point of view of the amenability to the perjury statute.

Warren B. King:

You’re not amenable to the perjury statute because there is not a valid legislation in place.

Felix Frankfurter:

Very well but is there a difference between the two courts?

Warren B. King:

I’m not aware of any.

Felix Frankfurter:

All right.

Warren B. King:

And I used it only in a sense, Mr. Justice that we are both foreign attorneys —

Felix Frankfurter:

Yes.

Warren B. King:

— because we were Out-of-State Attorneys.

Felix Frankfurter:

I understand that.

Warren B. King:

And call the illustration that Iowa got along very well for 80 some years —

Felix Frankfurter:

I understand.

Warren B. King:

— and you don’t require it.

Now, in answering Mr. Justice Black’s question, the suites in which were on the calendar where the order issued was at issue — the attorneys had selected their attorney on Minnesota to try their lawsuit because they have wished to do so and the case was on the calendar.

The very last one at least four months before this law was ever enacted or ever thought of.

Now it’s our position, if it please the Court, that in other than a judicial proceeding to constitute the crime of perjury under 1621 “The law of the United States authorizing oath to be administered must have a valid legislative base.Otherwise, there can be no crime.”

Therefore the question is pure and simply of whether or not Rule 3 has a valid legislative base.

We contend that it does not because Congress cannot authorize an oath in an admission hearing since the power to admit attorneys to practice in the federal courts is inherently a judicial power and it is not legislative.

Therefore our position is at local Rule 3 is not such a law of the United States authorizing an oath so that this violation will constitute a federal crime of perjury and it is interesting to note that on page 14, the Government takes a position which is substantially similar because they say the decisions of this Court are clear that for the purposes of the prosecution of perjury, there must be two elements.

It must be founded on legislative base, a statute of the United States for a rule promulgated pursuant to appellant, delegation of rule making authority and because the legislature has no authority to make any regulations in an admission hearing, there can be no valid delegation of rule making power.

Felix Frankfurter:

Do I understand your argument to be, although assuming, assuming I accept your starting point, namely that Congress couldn’t determine the qualifications for admission to this Courts bar —

Warren B. King:

That is —

Felix Frankfurter:

— I started that.

I (Voice Overlap) —

Warren B. King:

That is —

Felix Frankfurter:

— so I don’t need to recite it because I couldn’t.

Warren B. King:

That is —

Felix Frankfurter:

But assume that that is so.

Are you saying Congress couldn’t make it an offense to commit perjury in an oath which this Court has inherent power to require?

Is that what you say?

Warren B. King:

I am saying in an admission hearing that Congress does not have any power to determine the qualifications of an officer of this Court.

You and you alone have the power to determine the qualifications and you and you alone select who shall be your officer.

Felix Frankfurter:

But I’m accepting that — go on from there.

I accept that for purposes of my question.

Assuming that is so, can Congress not make it an offense to give false testimony as to matters which we require by the inherent authority of this Court?

Warren B. King:

They cannot for the plain and simple reason, Your Honor because they can enact a law to support the oath in an admission hearing.

Any attempt to invade the province of this Court, the inherent judicial power to select whom you desire to be your attorneys.

And you can also determine for what cause they ought to be punished or removed.

The whole cycle is complete, you have the power the select whom shall be your officer and you have the power to determine for what cause they ought to be removed.

Therefore it’s our position — excuse me Justice?

Charles E. Whittaker:

Aren’t you saying there then Mr. King that the answer to Justice Frankfurter’s question when he asked what that Congress didn’t in fact do that by the statute?

Warren B. King:

Congress — that is correct and if I may modify your statement, it is correct that Congress did not do that.

May I state it this way, if Congress had intended to do as Justice Frankfurter indicated then they all — they would have had to do in 1621 is merely saying this in any proceeding.

Authorizing an oath to — in any proceeding in which an oath maybe administered on and on.

But they didn’t do that because you see it’s in derogation of the common law.

In common law and way back to the Roman law, we had a situation whereby in judicial proceedings, automatically the violation of an oath constituted perjury.

That was the common law and that was the Roman law.

Anything extrajudicial was false lines, so all down to history, any violation of an oath in a judicial hearing proceeding, constituted perjury.

It was not necessary then to have a law of the United States authorizing the oath.

Common law now supports that.

It’s not necessary.

Now they wish to go out into a second field.

They wish to move into another field in restriction of the common law, so they say not all proceedings, not all hearings, the judge doesn’t have a roving commission to administer an oath to the party hires to be (Inaudible).

They say only in those cases whereby two qualifications exist.

One that the proper tribunal officer purchase or administer the oath and two, there must be a law of the United States or must be a clear legislative base in order to constitute this crime.

It cannot be constituted unless there’s a legislative base and of course there is no legislative base here.

Hugo L. Black:

You mean that one could decide when you have to say that the courts and not the Congress have the exclusive balance in regulating the lawyers of the court?

Warren B. King:

Completely.

Hugo L. Black:

That’s your view.

Warren B. King:

That’s our view supported by —

Hugo L. Black:

Is that in the argument you’ve made in this case?

Warren B. King:

It’s — it’s the argument that was supported by at least three cases I can think of, (Inaudible), Brooks versus Laws.

Hugo L. Black:

I remember those types of cases.

Warren B. King:

And a new case In re Schrader which is found in 22 federal — found in 22 federal cases that we found when we traced down the citation they made 22 federal cases 12.

And it’s interesting to note that in this particular case when we traced down 1654 in this particular case which was the statute that they tried to extend over and say constituted a law of the United States and tracing back its history.

The Court in the Schrader case said is the statute which was one statute 92, the forerunner of 1654 that they relied on.

In the Schrader case they said it is clear concession to the Courts.

That statute is a clear concession to the Courts of exclusive jurisdiction over the subject of admission of attorneys to practice in the national courts and maybe taken as an acknowledgement by Congress that this is a matter within the judicial power of the United States.

Hugo L. Black:

You’re not attacking this on the basis that this is a regulation for any basis of (Inaudible) merits of structure that the statute does.

You’re saying that it’s bad because it’s unconstitutional for Congress to pass a law which regulates admission to the bar.

Warren B. King:

I’m saying that Congress has not attempted to do so.

And if it did attempt to do so, you’re correct, Your Honor it would be a nullity.

And I am saying because —

Hugo L. Black:

— does not attempt to do so.

I can understand that.

Warren B. King:

They haven’t attempted to do so, if they did so, it would be a nullity but that’s exclusively to your jurisdiction.

And particularly, they haven’t done so when this defendant was on the stand and required to take an oath pursuant to an administrative action and investigation into his fitness so therefore there is no legislative phase.

Now if I may call —

Felix Frankfurter:

Can I stop you there?

Warren B. King:

You may.

Felix Frankfurter:

Do I understand what you just said that when he gave this — when he made certain statements which made the basis of a charge of perjury that at the time he made the statement, there was no duty on his part to — there was no duty on his part to make truthful statement because at least there was no rule requiring him to make a statement which are laid as the basis of perjury, is that what you’re saying?

Warren B. King:

That is not what I’m saying, Your Honor.

Felix Frankfurter:

Repeat — and then state what you said, what you mean by saying at the time he made these statements there was no such rules.

Warren B. King:

At the time he made this statement, there was no law of the United States, authorizing Local Rule 3 in an admission hearing.

Felix Frankfurter:

Was the local rule in existence when he made these statements?

Warren B. King:

Certainly.

Felix Frankfurter:

All right.

I misunderstood —

Warren B. King:

Four days before.

And I might answer the other end of your question because it’s important.

Of course he had of moral duty.

Felix Frankfurter:

Oh I’m not — a man may — the directive moral duty and not violate a statute.

Warren B. King:

But may I answer the corollary?

He has had a moral duty to tell the court the truth and the court has in its inherent judicial power available all of the sanctions to punish it by contempt temporary suspension.

Disbarment in a regular procedure where he would be tried by his own, beat his own home court Minnesota and the Bar of Texas where he is admitted.

So there was a duty and there were corollary sanctions.

Now, may I call the Court’s attention too, the Government’s briefs spends four or five pages talking about something that we will readily concede.

They are talking about the first requirements of the perjury statute, saying that the Court has power under Rule 459 and the Court under Rule 352 and under the Rules of 83.

Of course the Court had the power had to administer this oath.

Of course it was a proper tribunal but our contention is that the second valid requirement that first before the crime of perjury can be charged against this man whose professional life is at stake, there must be a law of the United States authorizing that oath and here there is no law of the United States authorizing that oath.

Hugo L. Black:

I don’t quite understand your argument because as I understand it, you say the only law that could be declared at all has to be declared by the Court.

Here, the Court declared a law, a rule.

Warren B. King:

That’s —

Hugo L. Black:

Why — why if that’s the —

Warren B. King:

That’s correct, Your Honor.

The Court declared —

Hugo L. Black:

— argument the he hasn’t violated the — that they didn’t’ have a right to do it under this law.

Warren B. King:

The Court declared a rule but the rule, the Local Rule of Court — that the Court declared is not a law of the United States because our —

Hugo L. Black:

Anybody else can pass on but (Inaudible)

Warren B. King:

Yes but —

Hugo L. Black:

Can Congress pass one?

Warren B. King:

We say they cannot in an admission hearing but the rule that they pass, Mr. Justice Black was not a law of the United States at all.

It was a Local Rule of Court in an investigative hearing — in an administrative hearing which cannot and does not rise to the dignity of a law of the United States because it must have a legislative base.

Do you remember the Caha case he cited?

Hugo L. Black:

— the legislative base and Congress has no power to pass it.

Warren B. King:

We — we agree that they cannot pass.

Felix Frankfurter:

And therefore you say there never can be a statutory prosecution for perjury no matter how detail the Congress and spell it out although you indicate that you wouldn’t be here if the judgment by virtue of the judicial power, lock this fellow in jail for X month, is that correct?

Warren B. King:

The last answer to your question is correct that we wouldn’t be here if the judge and his judicial power could sanction what he wanted to.

And we say correctly that the Congress cannot pass a law under the existing 1621 because that’s the field it reserved exclusively to the judiciary to determine who and they do not have a legislative base.

Now may I go back to the Caha case and let’s take the (Inaudible) case, let’s take all of them.

What has happened?

There first was a statute which had an object in mind only a 160 acres in the Homestead case.

And those statutes then put there that agency is spreading out to make rules and regulations.

But there first was a legislative based the Homestead Act, the Selective Service Act.

And do you remember what you said in the (Inaudible) case that the first statute was that a manufacturer shall keep books but a wholesaler didn’t and they charged him with perjury and (Inaudible)

The basic act for this crime, the original basic act for this crime must be legislative in basis and because the legislature didn’t require the wholesaler keep books, you and your regulations can’t supply it.

Every one of the cases they cite has a legislative base — it has a legislative base, the Homestead Act just like the (Inaudible)

Here, we do not have a legislative base, we have only Local Rule 3 which clearly is not a legislative base.

It’s a local rule of court in an administrative hearing and he so said that that was.

Now I might just add this one sentence that comes to my mind and that is with reference to the validity.

Felix Frankfurter:

You might — one might say that remotely it has a legislative base.

The District Court is the preacher of the Congress of the United States and the Congress could wipe it out tomorrow.

Warren B. King:

Your Honor that’s 100% correct.

May I offer a little modification?

All right, sir.

Congress can wipe it up tomorrow because Congress has the constitutional authority to create a Federal District Court but something happens as soon as they create that court.

As soon as the child is born, it assumes under itself then a part and parcel of the judicial branch of the federal government and thereafter — and thereafter, Congress cannot legislate in the field of admissions of attorneys to practice in that Court because such a Court is vested in such authorities invested in the courts only.

Albeit, Mr. Justice Frankfurter, they can wipe it out tomorrow but can they can name the federal district judge?

Felix Frankfurter:

A child becomes mature on birth, is that right?

Warren B. King:

It matures upon birth and assumes judicial inherent power that you have which Congress cannot invade to tell you who your officers shall be and tell you how to regulate them and how they should be handled.

You have full and complete power to do that.

Hugo L. Black:

Now — now the attorneys get admitted on the State Legislative Act?How did he get admitted to practice from the state court?

Warren B. King:

I am not familiar.

I am not a member of the Iowa Bar.

Hugo L. Black:

What bar are you?

Warren B. King:

I’m a member of the Minnesota Bar.

Hugo L. Black:

In Minnesota, how lawyers admitted to practice, under legislative act in the state courts?

Warren B. King:

We’re admitted in the state courts pursuant to the inherent judicial power of that court.

Hugo L. Black:

Is there any statute which prescribes certain qualifications for admission?

Warren B. King:

I am not aware of any that the courts themselves make that prescription.

And all — there could be — there could be probably in some states.

I might say this maybe I can get in an answer to your question.

Hugo L. Black:

You mean now that in Minnesota there’s no statute of any kind to subscribe any qualifications, the lawyers to be admitted to the bar?

Warren B. King:

I’m not —

Hugo L. Black:

I didn’t know there was one like you, maybe there is.

Warren B. King:

I’m not familiar with it but may I answer your question this way.

That it could be that in some state —

William O. Douglas:

Integrated bar?

Warren B. King:

I beg your pardon?

William O. Douglas:

Do you have integrated bar?

Warren B. King:

No, we have not.

May I —

Felix Frankfurter:

Your statutes have qualifications where people become judges?

Warren B. King:

I’m not familiar with that qualification.

I don’t think that there is either but I might say this in direct answer to your question.

If there was a statute putting forth the minimum requirements, we would then have this situation in nearly all of the jurisdiction of the country wherein the question has arisen that the act of admitting applicants to the bar is regarded as judicial rather than legislative in character, that’s 144 ALR.

Accordingly, nearly all of the Courts that have considered the matters support the doctrine of the determination of the qualifications of a particular person applying permission to the bar is exclusively a judicial function.

So even if they did, and the question happened to come head on the judiciary in my opinion would win.

And that is why —

Hugo L. Black:

You mean the judiciary were decided favorably judiciarys?

Warren B. King:

I would assume so, Your Honor and this is not properly so.

That’s why in a question of validity that you raised a moment ago, Mr. Chief Justice, I believe in putting the test as to whether Local Rule 3 is a law of the United States.

You would have a right perhaps to determine as impliedly within that question of whether or not that’s ex post facto and as to whether or not its discriminatory because it applies only to a part of the — of the state lawyers just to plaintiffs and not the defendants because it’s not universal at all, because it’s highly discriminatory, because the judge may put the man under oath.

And he also, if you please, has the right to put the party under oath.

He can call a party down and say, “When did you meet you this man.”

And so on and so forth and he can take the next man who is an out-of-state attorney and say, “I’ll waive the oath.”

Warren B. King:

And you admit it.

I like you, you’re a fine fellow.

That’s what Rule 3 is.

So insofar as you put the test to whether or not it is a law of the United States, you could determine whether it would meet the common test of a law of the United States because Rule 3 is not a law of the United States.

And further because the common law in — other than a judicial proceeding is not a law of the United States.

We sincerely believe in trust that you will agree that the judgment of the lower court should be affirmed because nowhere in the Government’s brief have they satisfied the second requirement that there is any law of the United States which in any manner authorized the oath that Mr. Hvass took.

And in absence of any judicial, in absence of any legislative base and we say there couldn’t be any legislative base that this man is not subjective to the charge of perjury.

And as we have pointed out, the attorney’s relationship with a federal court, stems from the inherent judicial power and consequently any attorney who is guilty of any unethical conduct in an admission hearing.

He is although not guilty of perjury he is certainly has subject to all the inherent powers of the Court to punish such misconduct.

But that it was never intended that in an extra judicial hearing that it would support the charge of perjury.

You remembered in the George case it said an affidavit not authorized or required by a law of the United States will not support the crime of perjury.

And we cited the Larson case which —

Tom C. Clark:

Which case are you referring to now?

Warren B. King:

That’s the United States versus George that’s cited in our brief, Your Honor.

Tom C. Clark:

Heretofore, you haven’t relied on that at all, have you?In the argument you’ve made.

Warren B. King:

Well, I —

Tom C. Clark:

I didn’t understand that your previous argument was on that basis.

Warren B. King:

It was — it would be part of it.

It would be part of this, Your Honor.

Well, I think you could be correct in —

Tom C. Clark:

That’s the one which the Court indicated that, that would be very cautious about regulations in making criminal charges rest on them.

Warren B. King:

You are so correct and we agree.

But we have a Larson case which we think is cited and it came from Minnesota which is so similar because there, a man have been found guilty of a crime.

And after the main action was over, the judge brought him in and put him under oath and asked him some questions for purposes of determining whether or not he should — what type of sentence he should have.

And the Court there affirmed the law, laid down in the United States versus George by saying that, “That oath was not supported by any statutory provision in the State of Minnesota and therefore would not support the charge of perjury.”

And because it wouldn’t support the charge of perjury because there was no legislative base, the crime had not been committed.

It’s so very, very similar to the case that we have here and in that case the Larson — State versus Larson they cited the George case.

Hugo L. Black:

How do you distinguish or do you make any distinction between that case and the one that Mr. Spritzer cited?

Warren B. King:

Yes, I do.

Hugo L. Black:

What is the distinction?

Warren B. King:

The distinction is this, Your Honor.

In Mr. Spritzer’s case, there was a clear legislative base that was the Homestead Act by Congress flowing from that and within the framework of that original statutory authority, the land office was created and the land office was delegated rules, power to make rules to carry out.

The effect of the land office at the Homestead Act to see that nobody got more than 160 acres.

So they had a right, a perfect right to make a regulation and require an oath because it was bottomed upon legislative authority, a clear legislative base.

The oath carried out the purpose so nobody could get more than 160 acres and they had a perfect right to do it.

In this case, the legislature didn’t say anything about putting a man under oath after the trial was all over.

In our case, Congress is never given any authority at all to administer the oath to the defendant.

Not any authority whatsoever that they did would be a nullity.

The cases are so different because here —

Hugo L. Black:

You return back to your distinction then to the ground that the courts have the exclusive power to decide all the qualifications of lawyers, anything Congress does is nullity.

Warren B. King:

100% Your Honor and therefore there is no legislative base to say it in so many words in the case that the Government cited there was a legislative base and here there is no legislative base.

We’re here left the way we are found.

We’re found with a man who is practicing law in that federal court because the Court said that he could.

And if there is to be any punishment for misconduct, if he was guilty, the Court has ample power to punish him.

He shall not be charged with the crime and forfeit.

His entire professional life but it can go back to the Bar Association not in a foreign court before a foreign judge and a foreign jury but go back to the Bar Association where they know the man.

They understand what the charge was.

If the charge is solicitation, they understand what it means in the State.

They understand how it’s been defined by that state and not by the State of Iowa.

And then he is presented with a bill of particulars.

He hasn’t called down by an order three days before, three days after a new rule is put into effect and said, “Tell us all about your prior life, your prior professional life, years before you ever had these cases and we will determine for ourselves whether or not that is competent, whether or not that is proper.”

That is far different in being presented and the burden of proof is different but you must remember that the Court satisfied the law, the Court said, “Thou shalt not try these cases.”

And he didn’t but they didn’t’ stopped there.

The rule was to determine his fitness to try one particular, two particular cases.

They said, “We don’t think you’re fit.”

And after they said that they didn’t stop they wanted to go one step further and put — charge him with a federal crime which was not authored — the oath was not authorized by a law of the United States to deprive him of his professional livelihood in all of the other states where he is admitted to practice law.

That’s quite a serious charge.

The rule had been satisfied.

The rule says, “Permission to try a particular case.”

They said, “You don’t fill our qualifications.

Warren B. King:

We won’t let you try it.”

But they didn’t stop there.

Months afterwards they put in an indictment.

Earl Warren:

Mr. King, have you in your briefs argued that — that if the Court should find that there was a legislative base for this rule, that still the rule itself invalid?

Warren B. King:

That would be the — that would be the report of our contention.

Earl Warren:

No.

Did you argue that?

Warren B. King:

Not in so many words, Your Honor.

We just said that doesn’t have a legislative — we argued in the inference that it doesn’t have a legislative base — we argued in the contrary, it is not a law of the United States.

Earl Warren:

And then you put all your eggs in that basket.

Warren B. King:

We do put our eggs in the basket that there was no law in the United States authorizing the oath.

It —

Earl Warren:

Yes.

Warren B. King:

— wasn’t Rule 3 and there wasn’t any statute and there isn’t any rule.

Earl Warren:

I —

Warren B. King:

No valid —

Earl Warren:

I understand that but assuming that the Court have the opinion that there was a legislative base for this — this rule.

Have you argued and do you believe we have fairly before us here, the question as to the validity of that particular rule?

Warren B. King:

I don’t believe so only insofar as you determine whether or not the rule satisfies the requirement of a law of the United States and if you say it is not a law of the United States because it’s invalid and so on.

Only insofar as that, per se the validity of the rule, I’m afraid you do not.

Earl Warren:

Yes.

Well that — that — you say that you raised that according to the law and didn’t decide it on that and we do not have a right to decide it here because of the limited review we can make in this matter of case.

Warren B. King:

That seems to be the law, Your Honor.

We did raise it below and it was raised part of the case too.