SCULL v. VIRGINIA
Legal provision: Due Process
Argument of Joseph L. Rauh, Jr.
Chief Justice Earl Warren: Number 51, David H. Scull, Petitioner, versus Commonwealth of Virginia.
Mr. Joseph L. Rauh, Jr.: May it please the Court.
This case comes here to review the judgment of the Virginia Supreme Court of Appeals affirming petitioner sentence of fine and imprisonment for refusing to answer certain questions put to him by a Racial Activities Investigating Committee of the Virginia legislature.
It is petitioner's contention before Your Honors today as it has been throughout these proceedings that the action of the Virginia Racial Activities Investigating Committee in summoning and questioning petitioner about his association with various civic, political and religious organizations unlawfully infringed upon his constitutional right of freedom of speech and of assembly.
This is, I believe, the first case to come before this Court involving the infringement of these constitutional rights by an Investigating Committee in the area of racial activity.
The Court did of course at the last term consider a somewhat similar effort to harass the supporters of desegregation in the NAACP case.
And of course, the Court has considered the activities of investigating committees in the so-called anti-communist appeal as the last and the next cases will be, but I believe that the first of its type which involved an infringement based on a Racial Activities Investigating Committee.
And it is our confident belief and it will be our purpose to show that petitioner's case is then a fortiori case on the basis of NAACP last year in Watkins and Sweezy before them.
To fully understand the massive intrusion on fundamental liberties involved in this case, a small part at least of the background of the resolutions setting up the Investigating Committee must be briefly stated.
On February 1st, 1956, approximately or almost two years after this Court's decision in the Brown case, the Virginia General Assembly adopted an interposition resolution interposing the will of Virginia against the decision of this Court.
On August 27, 1956, some six months later, in an implementation of that interposition resolution, an extra session of the Virginia legislature met.
The Governor in opening the Virginia legislature's extra session submitted what he called, and I quote “Recommendations to continue our system of segregated public schools”.
And on September 29th, 1956, this extra session of the general assembly adapted more than a dozen bills to carry out the Governor's recommendation to continue our system of segregated public schools.
This was what is colloquially and commonly known Virginia's plan of massive resistance.
And it had two facets, these dozen or more bills.
First, was the direct assault on this Court's decision.
That was the provision to close the school if any Negro were definitely assigned to a then white school.
It was a Pupil Placement Act which was declared on constitutional by the Fourth Circuit and Third was denied here.
It was the Appropriations Act which finally and also indicated Virginia's massive resistance.
There were about seven or eight statutes in this area directly contravening the decision of this Court, but that was not enough.
In addition to the direct assault on the decisions of this Court, there came what I would refer to as the indirect assault.
In seven statutes aimed at those who would bring lawsuits to enforce the rights which this Court indicated in Brown v. Board of Education.
These were the seven so-called anti-NAACP bills.
Two of these were registration provisions which were declared unconstitutional by a three-judge statutory court, and which is before Your Honors in number 127.
Three of these were anti -- so-called anti-barratry statutes, one of which was declared unconstitutional in the three-judge court in number 127 and two of which -- and the remaining two were not passed on because it was left for the state court to clarify what these three-judge federal statutory court thought was ambiguous.
Justice John M. Harlan: What's the title of the case?
Mr. Joseph L. Rauh, Jr.: It is number -- I think it's here, Harrison v. NAACP, Your Honor.
And finally, the last two statutes are investigating committee statutes.
That is the final two of the seven indirect assaults on this Court's decision where investigating -- the Investigating Committee wasn't enough to pass one investigating resolution.
The Virginia legislature on the same day they passed this other dozen bills passed too.
One of those was here in number 84 and was declared loose because it had expired.
The other is here today in Mr. Scull's case.
These investigating committees overlapped.
There is no question about that.
The record is clear on the overlap at page 26 to 28.
But in addition to their overlap, if Your Honors please, this is the first time in Virginia history that any legislative committee was given a subpoena power and the right to operate outside of the regular session.
This was all part and parcel of massive resistance.
So much as to how -- how we got on the books resolution that is involved here.
The resolution itself is contained in full at page 4 of petitioner's brief.
The Committee called the Committee on Law Reform in Racial Activity is also known as the Thomson Committee for its Chairman.
The Committee is authorized in Section 2 to make a thorough investigation of the activities of organizations seeking to influence, encourage, or promote litigation relating to racial activities in this State.
The Committee shall conduct its investigation so as to collect evidence and information.
And then I dropped one and two because the Committee Chairman, as I will come to, dropped one and two, and go to three to collect information determining the effect which integration or the threat of integration could have on the operation of the public schools in the State or the general welfare of the State and whether the loss of barratry, champerty, and maintenance are being violated in connection therewith.
That is the resolution before the Court.
Now, as to what happens under.
On September 20, 1957, Mr. Scull, the petitioner was called before this Committee.
In view of the Watkins and Sweezy cases, his counsel Wisely, he was another counsel, counsel Wisely suggested that he asked the Committee what the question under inquiry was.
At page 73 of the record, you will find that the Committee Chairman responded by stating what was in the statute.
It's on the middle of page 73.
Unknown Speaker: What page?
Mr. Joseph L. Rauh, Jr.: 73, Your Honor, right in the middle there Chairman Thomson states what the question under inquiry is by repeating the statute.
Then Mr. Scull has asked, “Do you belong to the Fairfax County Council on Human Relation a distinguished body?”
And on page 74 and 75, he gives his answer which is a statement he had prepared indicating the he supported the decisions of this Court and he had a right of free speech and a free assembly to speak for the decisions of this Court and to assemble with others who felt likewise and he would not answer these questions because they infringed his constitutional rights.
He was then asked 30 other questions making a total of 31 to all of which answers he gave the statement.
Now, the questions -- 20 of the questions involved did -- this organization or that organization or this person or that person use your box, your mailbox.
The rest of the questions were associations with organizations and whether he had contributed funds for our organizational support of these cases that were in the Court.
Despite the fact that no answer was ever given to Mr. Scull's statement, the Committee went to the Arlington Circuit Court and asked for an order directing Mr. Scull to answer all of the 31 questions.
We had a hearing in October 15th, I was at this hearing.
We had a hearing on October 15th before the Circuit Court of Arlington County to determine whether Mr. Scull should be ordered to answer these 31 questions.
The only witness was Mr. Thompson, the Chairman of the Committee.
All he did was to say here is the record and then I was allowed to cross-examine and these six things came out during the course of the cross-examination.
First that the Committee had no rule, second, that Mr. Scull had been called because of a brochure entitled “The Shocking Truth” which is an anonymous brochure about which the Committee knew nothing and which is on page 84 of the record but it's hard to handle it, we do not tear it out.
I've torn my own out because it was very hard to work with.
Third, Mr. Thompson stated that his investigation was being used because it was devastating to the NAACP would bust that organization wide open and would keep the NAACP out of litigation which was the heart of the organization.
Justice John M. Harlan: Where in the record is given?
Mr. Joseph L. Rauh, Jr.: There are on page 34 and 35, Your Honor, please of the record.
He also conceded about -- well this was a Racial Activity Investigating Committee there were a hundred to one ratio of investigations, a hundred of people connected with the NAACP and one of the defenders of sovereignty which is the other side of the fight.
Justice John M. Harlan: I don't think I understood what you just stated.
Mr. Joseph L. Rauh, Jr.: If Your Honor please, in implementing his desire to devastate bust and break the NAACP they had called a hundred witnesses before their committee who were in some way connected to NAACP or would give information about that side and one witness on the other side.
This was their answer to the claim of fairness was that they had investigated both sides.
It was like a horse and a rabbit.
It was 100 people on the one side and one on the other.
Then if, Your Honor please -- if Your Honor, please the -- Mr. Thomson supports rightly and confirm the fact that he is the leading supporter of segregated schools and opponent of this Court's decisions in his area.
And finally at the sixth, we went in to the question under inquiry and Mr. Thomson was -- and I will develop this at further length in the argument.
Mr. Thomson was unable in anyway to state a question under inquiry in any definitive form.
Despite this and despite that failure of counsel for the Committee ever to make a suggested distinction of this Court's decision in Watkins and Sweezy, the Court ordered Mr. Scull to answer the 31 questions before the Committee.
Mr. Scull in fact before the Committee on October 23rd had respectfully declined to answer on his statement.
On October 30, 1957, there was a trial which consist of largely of argument over the record.
Mr. Scull was sentence to 10 days imprison and a $50 fine.
We file petitions for writs of error to the Supreme Court Appeals of Virginia from both the initial order to answer the questions and from the sentence in order to protect themselves and both orders were both petitions for writ of error were denied.
The Supreme Court of Virginia saying that the decisions below were “Claim the right and that their decision in effect affirms the Circuit Court rulings.”
On -- on June 9th, this Court granted certiorari but it denied our request for a summary reversal.
Justice John M. Harlan: Mr. Rauh, is this Committee a functus officio?
Mr. Joseph L. Rauh, Jr.: It has expired, Your Honor.
Justice John M. Harlan: I understand that it doesn't affect this case.
Mr. Joseph L. Rauh, Jr.: But I don't think it affects the case.
It has expired -- actually what has happened is that both of the committees that were set up as part of massive resistance on September 29th, 1956 expired at the end of 1957 or towards the end of 1957, but a new committee has been set up to carry on the work of the two whenever the new committee in an existence.
But this Committee is no longer in existence other than there is an outstanding convictions of petitioner for his refusal to answer.
Now it is -- he needs to state the rules that this Court has set down as I understand them for the investigating committees and the -- their effect on -- in the First Amendment.
The rule seemed simply to be a weighing of the repressive effect of summoning and compelling a witness to answer against the interests of the State in obtaining the information which those answers would give.
And as I've said at the outset, we respectfully suggest that there is less -- that there is a greater repressive effect and a less interests of the State in getting this information than in any case presented to this Court.
The repressive effect is of course obvious.
Here is a main question about associations with civic religious, political organizations fighting for a civil rights in an atmosphere of better local hostility to the principles for which this organization stand.
Indeed I suppose on this side of the case NAACP versus Alabama settle the matter quite clearly the repressive effect there.
This Court unanimously held the repressive effect involved in forcing out the membership list of an organization of different beliefs.
It's worse here actually because you have not a single organizational tie of the petitioner at which this Committee was going, but all of these organizational ties with literally a dozen organization with B'nai B'rith, American Friends Service Committee, the National Conference of Christians and Jews, all sorts of organizations which are on record for the support of this Court's decision in Brown and which are thereby subject to hostility in the area in which the Committee operates.
But it might be said well these are respected organization who doesn't want to admit he's a member of these organizations because of the respect in which they are held by thinking people.
I would suggest to Your Honors that even the most respected organization one is entitled to freedom of association with them not that I -- not that I need to rest on that because he has asked on organizations which have real hostility this Court knows of the NAACP and the like but even on the other organizations.
The ones less controversial it seems to me quite clear that a man has a right not to be compelled under subpoena to answer concerning those associations because in a sense merely being subpoenaed before governmental body and asked about them results in the idle curiosity of the general public, I would suggest, the suspicion of the credulous and the hatred of the bigotry no one it seems to me to be so subjective.
Now, Mr. Thomson or the Committee wants to debate in the public prints with the petitioner and they want to take the position that this Court's decision is wrong and petition wants to take of the position that is correct.
That is the good old American way but for Mr. Thomson to use his subpoena to carry on this debate under circumstances where there are no fair response by the one under subpoena is a wholly different situation.
Justice John M. Harlan: Do I misread these questions.
I'm looking at the Appendix A of your brief.
Mr. Joseph L. Rauh, Jr.: Yes, Your Honor.
Justice John M. Harlan: As I glanced over them, I don't see that he was asked any questions as to his membership in any of these organizations.
Mr. Joseph L. Rauh, Jr.: The second -- first and second, Your Honor.
Justice John M. Harlan: Other than the Fairfax County Council and the NAACP.
Mr. Joseph L. Rauh, Jr.: Yes.
And then there are twenty questions later on, Your Honor about the use of his box number by those organizations.
That to me is an associational question then we did the B'nai B'rith to use your box number, did the ADA use your box number.
Did the American Friends use your box number?
Those seemed to me to be associational questions that raised the issue did he associate with these organizations.
Though -- and a matter of fact, the box number is the bulk of the questions.
There are twenty out of the thirty one there.
Now, if Your Honors please, we come to the other half of the equation which is the compelling interest of the State in getting this information down here.
If the repressive nature is clear as it seems to be, it would take a very compelling state interest to offset the repressive nature of the questioning.
Justice Felix Frankfurter: Before you go on then, Mr. Rauh, you haven't said anything unless I had seemed to (Inaudible) about the barratry aspects of the person.
I don't mean the discussion of it but some of the questions are directed not in association of activities but the barratry.
Is that right?
Mr. Joseph L. Rauh, Jr.: Yes, Your Honor.
I will come -- I can either answer that now or --
Justice Felix Frankfurter: Suit yourself.
Mr. Joseph L. Rauh, Jr.: I will come to that in thirty seconds --
Justice Felix Frankfurter: Alright.
Mr. Joseph L. Rauh, Jr.: -- because I really feel that questions 3 to 6 are associational in the sense that these were obviously contributions to organizations which did those things --
Justice Felix Frankfurter: That's one of my questions.
I wonder whether you differentiate between the questions which I have a barratry of aspect but maybe barratry with associational innuendos.
Mr. Joseph L. Rauh, Jr.: I do not but in a word, I will say that when I got at the question under inquiry, Mr. Thomson stated that the barratry was not part of it.
That's the simple answer to the question.
Now looking at this question of the compelling interest of the State, in the first place Mr. --
Justice Felix Frankfurter: The appendix.
Mr. Joseph L. Rauh, Jr.: -- Thompson squarely stated at page 20 of the record that he had called Mr. Scull to establish whether or not what was reported in there that is in this anonymous pamphlet, The Shocking Truth was true.
In other words, here is the compelling interest of the State is to call a man before an Investigating Committee to ask him whether this document The Shocking Truth was true when it says of him and it has even the middle with the post office box and it has lines out to all these different organizations.
That was the compelling interest that started this hearing.
Then at page 29 of the record, we started to try to find out exactly what the question under inquiry was.
Right at the outset, Mr. Thomson admits that what he was really trying to find out was whether in fact those organizations are racial in character.
This is about fifteen lines down, Your Honors -- whether in fact those organizations are racial in character, whether at a future time the legislature might wish to authorize an investigation of these subjects.
In other words, if I understand Mr. Thomson then I will respectfully submit it is not easy.
If I understand him, he was saying “I wanted to know whether the B'nai B'rith, the ADA, the ACLU, the American Friends, the National Conference of Christians and Jews were racial in character.
By this, I presume he meant whether they were interracial in character because he so suggested later on.
Justice William O. Douglas: What page are you referring to now?
Mr. Joseph L. Rauh, Jr.: Page 29 if Your Honor Please, about the -- two, four, six, eight, ten, twelve, the thirteenth line.
He says I'm trying to find out whether in fact those organizations are racial in character whether at a future time the legislature might want to do something.
Now then I went on to try to find out what the question under inquiry really was.
Because if you will look back now, Your Honors at page 73 of the record, you will see that when Mr. Thomson was asked at the initial hearing by Mr. Scull's then counsel, “What is the question under inquiry?”
He answered as follows.
The subject under inquiry by the Committee Mr. Scull are three-fold, one, several which primarily do not deal with you and then he went on to restate the statute.
So when I cross-examined him and this is on page 29 of the record, I said, “Please tell us which of these three namely taxable status, threat of integration or barratry, which of these three are in the question under inquiry.
And right at the top of page 30, Mr. Thomson says flatly “Looking at it in -- this is the third line on page 30 -- looking at in retrospect the other on champerty, barratry, and maintenance would not apply.”
In other words, where there any issue if, Your Honor, Justice Frankfurter, would to answer your question now if I may that the Chairman of the Committee himself took the barratry out of it.
But I would say even if he had not, there would have been no further.
It would have not been a distinguishable question since it seems to me that there can be no question that a man has a right to contribute to bringing a lawsuit to vindicate the constitutional right of another person.
If he did not, our legal aid societies, our very fabric of our justice is based on help to the indigent.
All that you would have here would be indigent persons who needed help to establish their constitutional rights.
Justice Felix Frankfurter: What's that (Inaudible) sentence mean?
Is it specifically with the third?
Mr. Joseph L. Rauh, Jr.: I'm afraid that I cannot help, Your Honor on what that means.
I can say that I was worried I didn't understand it so I repeated the question down further on the same page and you -- just about fifteen lines up from the bottom I said, “Which of the three were you referring to when you said several which primary do not deal with you.
I think it is the last mentioned there that would be the barratry.
Would you just state for the record so that it's clear on the record which ones you were referring to that did not deal with Mr. Scull.
The violation of those dealing with champerty, barratry and maintenance in general unauthorized practice of the law.”
In other words, I have Your Honor the same fear that it wasn't clear and I did what I could to clarify.
Justice Felix Frankfurter: Just to say first the barratry point?
Mr. Joseph L. Rauh, Jr.: I cannot even answer that question, Your Honor because it is not mentioned in the brief for the respondent in this Court.
It is not mentioned.
Justice John M. Harlan: Mr. Rauh, right bottom of page 30.
He says just the opposite doesn't he?
Mr. Joseph L. Rauh, Jr.: It's the way I looked, Your Honor that he is saying the opposite.
It's very difficult to say.
I -- I think of justification for my statement that the Committee was unable to state a question under inquiry.
I think one could interpret that last sentence as Your Honor has in view of the more categorical statement the other way.
I am more or less was implying to credit the categorical ones.
I think if this were alone, Your Honors interpretation might very well --
Justice Potter Stewart: Under the bottom of page 30, at the very top of page 31.
Mr. Joseph L. Rauh, Jr.: That's correct.
Justice Potter Stewart: Mr. Rauh more generally, may I ask you this.
Assume a State which for decades in its Constitution, in its legislation, in its customs and in its ways of social organization has had the school segregated on the basis of the race of the students.
And -- and then in 1954 decision of this Court says that it violates the Constitution.
Would it necessarily be an improper legislative purpose for such a State to make an investigation as to the manner and extent or the impact of that decision within its particular State?
When it was going to be, when it was going to involve, what new legislation was going to be necessary, how many, how fast it was going to come, how much impetus there was within the State for a sudden change?
Would any of those purposes be an improper subject to the legislative investigation within the State?
Mr. Joseph L. Rauh, Jr.: In the contrary, my judgment, it would all be proper, Your Honor.
The difference here is that this is not an investigation that the difference based on the history of how it came in, it's the difference based on the questions that were asked if the difference is in fact a serious purpose of finding a solution to segregation were involved, I rather doubt that that it would be done by investigating in a hostile fashion under subpoena.
But even if it were, I would certainly say it was appropriate.
I suggest that every that this left, that this record literally shrieked with an answer that this is not the purpose of this investigation nor do any of the questions help with that problem but that this in fact what the Governor asked for namely the ways of preventing integration and that this is in fact the way it was carried out.
Justice Felix Frankfurter: If they presided the question before us, the validity of the questions that were asked besides the 31 questions -- and I suppose if that -- am I right or wrong in assuming that if any of the questions are sustainable, that takes care of the sentence.
Is that right or wrong?
Mr. Joseph L. Rauh, Jr.: I'm afraid, Your Honor that I would disagree that that was correct because I do not see how you can take one question out of the batch not that I think there's any of this is correct but I would say I do not feel that Your Honors could isolate one question here.
It is conceivable had a special answer been given to one question.
Had the Committee said “Well, maybe you are right about some of these but we have a special need for the one question then there might be some justification?”
Justice Felix Frankfurter: But it wouldn't take your time to argue but I find it difficult to understand right off to that, that if 31 questions are asked and 29 of them were invalidly asked, that still covers the two that's standing by themselves would be otherwise but I don't want to take your time.
I wanted to -- I'm just telling you myself you can do it with what you please but the time is yours I suppose.
All I want to know is whether your trust is directed against the validity of the questions or does it go beyond to some underlying invalidity of that which authorize the asking of the question, they're all to me not very attractive bearing honest things.
Mr. Joseph L. Rauh, Jr.: It is quite clearly --
Justice Felix Frankfurter: Bearing on its base problem here?
Mr. Joseph L. Rauh, Jr.: Certainly.
It is quite clearly both if Your Honor, please.
This is not a case.
This is clearly a case where the history of this inquiry as part of a program of massive resistance is invalid and it is also a case where the operation of it no rules, no question under inquiry, no stated purpose for the legislation.
And let me just say this, make this perfectly clear in those time in this entire proceeding before the Committee, before the Lower Court, before the Supreme Court of Virginia and in the brief here has there been one suggestion of one piece of legislation that might conceivably come from the questioning.
Justice Felix Frankfurter: You're taking on the heavy burden namely that none of the legislatives regarded all as a whole and that none of it maybe used for the purposes indicated by the Mr. Stewart's question or the validity of such an inquiry you acceded to.
Mr. Joseph L. Rauh, Jr.: I would say in answer to both Your Honor and Justice Stewart that this is invalid on its phase.
But even if it were not the 31 questions, each one of them are invalid as such.
Justice Felix Frankfurter: There's no claim on this.
(Inaudible) I don't know why you should carry more burden as you need to.
Mr. Joseph L. Rauh, Jr.: Because it seems to me if Your Honor please, that the situation is so clear here that it is a matter that seems to me in my client's interest to suggest both have of this proposition.
Justice Felix Frankfurter: I respect your duty but also mine not to go beyond the necessities of constitutional adjudication.
Mr. Joseph L. Rauh, Jr.: I think both are correct.
Justice Felix Frankfurter: All right.
Mr. Joseph L. Rauh, Jr.: It seems to me that I'm not suggesting that the Court might not want to choose one instead of the other.
Now, I repeat what I said before that at no stage have we heard a legislative purpose such as the first legislative purpose I have heard Justice James and Justice Stewart in this entire proceeding that we have been through.
Justice Felix Frankfurter: The legislature leads -- allowed it's purpose.
It's nevertheless it's valid or a valid attribution can be made to it.
Mr. Joseph L. Rauh, Jr.: It seems to me if Your Honor please, that when a man goes before a Committee and suggests his side of this as the Court held in Watkins, the time has come for the Committee to give some indication of its side of the situation so the witness may judge whether to answer --
Justice Felix Frankfurter: But even Watkins didn't declare that the, they just knock out the whole legislation simply in further in light of it those questions can't be asked.
Mr. Joseph L. Rauh, Jr.: If Your Honor, it would be fair to limit the decision.
That's a matter for you Your Honors.
I can only say that in my judgment, this is bad on its phase in addition to its operation.
Now, may I just add that it seems to me that the equation is clear here, the balance of the repression and the absence of a compelling interest.
But there, you add to this equation what you do not have and say the internal security investigating.
You add to this equation something else.
You add the clear purpose of resisting integration.
These are not covered motives of investigative.
I'm not suggesting Your Honors look into some motives of Mr. Thomson.
I'm suggesting you just take them at their word.
The Governor said we're going to do this to stop integration.
The assembly said we're going to do this to stop integration.
Mr. Thomson said we're going to do this to stop integration.
It's simply a question.
It -- it's just what this Court said in a sense in Cooper against Aaron just last month which this Court said, “The constitutional rights of children are not to be discriminated against in school admission on grounds of race or color declared by this Court in Brown.
It can neither be nullified openly and directly by State legislatures or State executive or judicial official that are nullified indirectly by them through evasive schemes.
It seems perfectly clear that this is exactly an indirect.
It was proposed as an indirect nullification.
And may I say that it seems to me there is this difference and this a fortiori from the other cases, the internal security investigating cases, there it seems to me in the anti-communist cases.
The end sought of the internal security may well be found and this Court has been concerned with it because the means to the end appeared to violate constitutional rights or freedom of speech in assembly.
I respectfully submit that here, both the means and the end are tainted, the means, the infringement of constitutional right of speech and assembly in the end to prevent integration in accordance with this Court's decision.
Not only do you have a taint here from the end as well as the means, you have a taint from the procedures.
You have a taint from calling a man on the basis of an anonymous brochure.
You have a taint on the rules.
As it's shown at the rec -- here in the record, there were no rules published for this Committee.
There are only two rules in all whether there was a quorum, what was the quorum and if they should have a reporter.
Here, a man is called by subpoena on the basis of anonymous brochure in front of a committee without rules and not given a satisfactory answer to what was the question under inquiry.
And I respectfully call your attention to the appendix in our brief which points out that this is now the practice in every state which has complete massive resistance to this Court's decision.
In other words we are not presenting here lightly a problem, when I took such a broad decision, Mr. Justice Frankfurter, was not lightly done.
These investigating committees now appear without procedures for the purpose of resisting this Court's decision in every State in the south where there has been not one step towards integration.
We are presenting here therefore a problem of wide application.
Now respondent's brief has two points in it as I would see them.
First, the suggestion that we did not raised the Fourteenth Amendment at that point, this is on page 1 as an implication to this effect.
I would ask Your Honors to look at note 6 on page 14 of our brief in which we point out a dozen places in which we did raise the issue of the Fourteenth Amendment.
But just to make clear that we did it at the outset, I would call Your Honors attention to page 75 of the record.
And at page 75 of the record, Mr. Scull closes his statement, his opening statement for all of the foregoing reasons and on the basis of all the rights accorded to me under Section 8, 11 and 12 of the Constitution of the Commonwealth of Virginia and the correlative provisions of the Federal Constitution are respectfully declined to answer.
Section 12 of Article 1 of the Constitution of Virginia is a free speech section.
It seems to me that one raises the point tactfully and honorably and clearly in the State of Virginia by referring to its constitutions and then saying the correlative provisions of the Federal Constitution.
The only other point made by the petitioner in his brief is that these were preliminary questions, but preliminary to what?
Preliminary, they haven't said, preliminary to what these organizations do.
This is a matter of public record.
How could we measure?
We're having enough trouble finding the question under inquiry in order to measure questions that were asked.
How could you measure against the question under inquiry question who haven't even been asked yet?
So, I don't see that the preliminary issue can solve the respondent's difficulty.
If I may respond to your question, Justice --
Justice John M. Harlan: Could I ask you one question?
Supposing (Inaudible) statute, except they said, “We want to find out (Inaudible)
Mr. Joseph L. Rauh, Jr.: Yes, I believe you -- I believe that you have that statute.
You could strike that down on the broad basis namely that this was part of an effort to prevent integration and that in fact they passed two -- they passed three barratry statutes the same day outlawing various things such as giving of assistance to people in lawsuits and these are presently before Your Honors on a statement as the jurisdiction coming up from the three-judge court which held those statutes were unconstitutional, but -- so it seems to me the answer to your question is yes you could, but you don't have to because here, the anti-barratry situation was first written out of the case by Mr. Thomson who said it was not part of the question under inquiry to Mr. Scull and it is in addition clear that Mr. Scull had a constitutional right to do the things that they asked him about namely, to contribute to organizations which back lawsuits because otherwise your entire system of justice as Mr. Scull very fairly pointed out in his statement would -- would collapse the whole support of indigent legal right is based on contribution.
Justice Felix Frankfurter: But do you really think that our recognition of the need of legal assistant, that indigent litigants impliedly repeated all renders unconstitutional on barratry statutes --
Mr. Joseph L. Rauh, Jr.: Certainly not.
Justice Felix Frankfurter: -- under the State in making inquiry into the manner and methods by which the interest of the indigent defendant should be taken care of not by the State rather than meeting at the private organizations.
Mr. Joseph L. Rauh, Jr.: Of course they would.
Justice Felix Frankfurter: How would you shut off all the inquiry into what used it.
But the long story -- story of barratry by saying indigent defendant must have legal aide.
That doesn't settle the problem of who, how, and what different statutes that they should be giving.
Mr. Joseph L. Rauh, Jr.: Your Honor accused me of broadening the case before which I do in the sense that I say that nothing under this resolution, it seems to me would be valid.
I didn't say that nothing under any resolution would be valid.
Justice Felix Frankfurter: But that would be your hypothetical statute namely plain barratry statute and they want to find out how litigation is financed.
And you think the State has no power because that may or even if you please -- is motivated by finding out.
And if you please, even if I'm convinced as I might easily be convinced, I can assure you that it's intended to put those NAACP that it can't make such an inquiry into the most of average litigation and finance?
Mr. Joseph L. Rauh, Jr.: Of course it can.
It can make a nondiscriminatory fair investigation with a clear statement of a question under inquiry, a clear set of rules, calling people on the basis of probable cause to determine how litigation is financed.
Such a resolution would certainly be appropriate and the questioning would be appropriate.
It so happened that we have neither the resolution nor the operation under in this case.
Justice Felix Frankfurter: I can understand that, but the questions don't meet those conditions.
But this notion you're talking about legal aide society, therefore no barratry investigation is a little -- and even broad and even more inviting in your broad shoulder of that thing.
Mr. Joseph L. Rauh, Jr.: Either I misunderstood Mr. Justice Harlan or you misunderstood me, Your Honor.
Justice Felix Frankfurter: Well, so long as we end up (Inaudible) --
Mr. Joseph L. Rauh, Jr.: [Laughs]
Justice Felix Frankfurter: -- at the end.
Justice John M. Harlan: (Inaudible) but I thought you were suggesting (Inaudible) brought us with your position, striking down the statute as distinguished from its application to this -- to this issue?
Mr. Joseph L. Rauh, Jr.: I --
Justice John M. Harlan: (Voice Overlap) --
Mr. Joseph L. Rauh, Jr.: -- I support the proposition.
First, that the statute is unconstitutional on its face to use the words that Mr. Justice Frankfurter had used before and that it is unconstitutional, his operation to Mr. Scull.
Justice John M. Harlan: That would mean that at this record, this man had come before the Committee and simply said, “Well, this -- I'm not going to answer any question.
That's all there was.”
And you hear arguments statute that you talked about.
Mr. Joseph L. Rauh, Jr.: Yes.
Well, I'm sure I'm glad that I'm here with a simpler occasion out here, Your Honor.
Justice John M. Harlan: (Inaudible)
Mr. Joseph L. Rauh, Jr.: But I -- I would be prepared to take that burden and maybe someday I may have the honor to return and try to win that case.
I do not however have to win that here.
It's quite clear.
Well, just in conclusion, I don't want to take this Court's time to summarize the equation.
The equation is quite clear.
The repressive effect is clear.
The justification is nil.
There is one thing I would like to say in conclusion.
And that's -- it's -- it's a topsy-turvy world in which Mr. Scull is ordered to jail for seeking to vindicate the decisions of this Court and he sent to jail at the behest of a man who proudly proclaims that he's the leading opponent of the decisions of this Court.
Now, one might think calling him before the Committee under compulsory process in violating his constitutional rights would give him a remedy in another forum.
I respectfully suggest that there is no other forum.
The Kenny case makes clear there is no forum under the Civil Rights Act.
There's no forum at the electorate, if Your Honors please, in a tense situation such as created by the -- Your Honors decision.
The only forum for vindication of the constitutional rights of this petitioner, the constitutional right to publicly proclaim and help carry out the decisions of this Court lies in a vindication here.
Chief Justice Earl Warren: Mr. Hall.
Argument of Leslie Hall
Mr. Leslie Hall: Mr. Chief Justice, members of the Court.
I want to, again, touch briefly, I want to emphasize the purposes for which this Committee was formed.
Mr. Rauh has stated some of the purposes but I think that he is more or less crossed over there.
If you read the Act itself which is Chapter 37 of the Acts of the General Assembly of Virginia, Exposition 1956, you will find that one of the purposes was for the Committee to make investigations and recommendations one as to the taxable status of organizations engaged in racial litigation.
The second purpose was to investigate and make recommendations back to the General Assembly with respect to the tax exempt status of donations and contributions to such organization.
And, the last that has been discussed quite a bit of length here is with respect to the laws relating to champerty, barratry, and maintenance.
Now, surely gentlemen, all of these are proper legislative functions.
And as it has been pointed out by this Court in a number of cases, the only way that a legislative body can properly operate and determine what legislation should be enacted is for that legislative body to act through its committees.
I think that the number of cases on that particular point are so many that it is unnecessary to repeat them at this time.
Now, the contentions made by the petitioner as to the ultimate purposes of the Committee and of the General Assembly of Virginia are not supported by the record in this case.
It maybe supported by some remarks made by Mr. Rauh in his argument to the Circuit Court of Arlington County and supported by some matters submitted in his brief here on the petition that is before the Court today in the appendix and in the footnotes when he refers to such material as the Washington Post and Times-Herald and quotes of great length from that organ and from Theology Today and from the Southern School News, but none of those things are part of the record in this case Your Honor.
Therefore, I think that the matters mentioned by him and quoted by him along those lines are entitled to no consideration whatsoever.
The only question before this Court is whether the questions asked of Mr. Scull were pertinent to an -- to an authorized investigation by an appropriately organized committee of a legislative body.
Of course, we contend that those questions were pertinent.
It cannot be assumed on the best assertion of a person who presumes to defy who Court comes to jurisdiction that it duly constituted legislative body would deliberately exceed or abuses authority.
As I said before, the things that the Committee was delegated to investigate certainly were matters which could be made subjects with appropriate legislation by the legislature of Virginia or the legislature of any other State in the union.
Now, as the petitioner's knowledge of the purposes of the inquiry, I'd like to point out one thing that's been omitted by Mr. Rauh.
I don't know whether he did it intentionally or whether he just forgot about it and that is this.
The subpoena itself which is printed in the record at page 70 is petitioner's exhibit number one before the Circuit Court of Arlington County has set out the bill.
After reciting that the subpoena was issued under the authority delegated by chapter 37 and so forth, the petitioner here today, Mr. Scull, was directed to appear before the Committee in the Circuit Courtroom Number One of the Arlington County Courthouse, Arlington Virginia on Friday the 28th of September 1957 at 10:00 a.m. Eastern Daylight Savings Time to produce before said Committee and note this.
“All papers, records, and documents in his possession or under his control pertaining to his participation and litigation relating to integration of the races in the public schools of Fairfax County Virginia or any other place, and to testify the truth to say in connection with an investigation being made by the said Committee relating to the need or lack of need for legislation pertaining to the activities of corporations, associations and other like groups which seek to influence, encourage or promote litigation relating to racial activities in this State.
All of those things set forth in that subpoena were matters that were delegated to the Committee that inquire into by the act of the General Assembly.
Justice John M. Harlan: Is that the usual requirements that they use in this investigation?
Mr. Leslie Hall: That is the usual form that was used in some other areas of the State so we did use a slightly different form, but the forms that were used were very similar to this throughout the whole State.
We had hearings in Richmond.
We had hearings in Fonville, in North Arlington and Alexandria and a similar subpoena was used in each case.
I might say however that at the original hearing in Richmond, certain officials of the NAACP were summons to appear before the Committee at the State Capital and were asked to produce certain specific documents most of which they did furnish, but some of which they refused to give us.
The ones they refused to give us by the way happened to be a list of membership and this Court has now ruled in the Alabama case that it was not proper to ask for.
We never did press that particular phase of the investigation, to ask the list of memberships for the organization.
At that same meeting -- and Mr. Rauh made a point of this and he talked about this being a one hundred to one investigation.
A representative of the defenders of the states rights and states sovereign, and states right was called before the Committee and produced voluminous records of that organization and testified under oath and the Committee was now able to find whether that organization had ever participated in or encourage any kind of litigation in the State of Virginia.
In fact, we did make some preliminary investigations of other organizations that had been brought to our attention and we would never able to find that any other organization had encouraged litigation or participated in litigation in the State of Virginia.
Now, as to his further knowledge, as to the -- Mr. Scull's further knowledge, as to the purposes of the inquiry, I might point out that in his statement that he furnished to the Committee which appears at page 75 of the record starting on page 74.
About the middle of page 75, he makes the following statement.
“I have fully recognized the public right to know the officers, directors and general purposes of every organization which sets itself up before the public in any way.
Was this as a matter of public information for every organization to which I belong or contribute.I have nothing to add to what the Committee can obtain directly from the organization in which it may have an end reason.
Now, as far as that is concerned, he says he doesn't have anything to hide and yet after he was asked the very first question, “Are you a member of the Fairfax County Council on Human Relations?”
He refused to answer, submitted a statement and from then on refused to answer every question asked by the Committee on the basis of this statement.
Justice Felix Frankfurter: Well if a man claims that the questions that are asked of him may not constitutionally behalf even to hiding because he doesn't answer.
Mr. Leslie Hall: No.
But he's contradictory I think, Your Honor when he gave the statement in which he says that the public has the right to know all of these things and then turns around and refuses himself to give that information and says that that information can be obtained from the organization themselves.
Now, in that connection, it's my opinion and I've always found it to be true in the practice of law that the only way you can obtain the information as to the operation of organizations is by questioning those who are connected with such organizations.
The organizations are being preachers of statute, most of them that is the corporations especially are official persons, have no way of answering except through their officers and members and so.
So, on the basis of the fact that it appeared that Mr. Scull might have been -- had membership in some of these organizations.
The Committee wanted to question him about the operations and the activities of those organizations.
Justice Felix Frankfurter: Can you actually recall officers of these organizations?
How many of these organizations about that you inquired have been localized or incorporated the Virginia or authorized to the witness stand?
Mr. Leslie Hall: Well, I can say this that checking the records heretofore is one of which is the NAACP Conference of Branches which is an unincorporated association with his headquarters in Richmond, the NAACP or the National Association for the Advancement of Colored People Incorporated which is a New York Corporation.
And I don't think he was asked about the NAACP Legal Defense and Educational Fund but that's also a New York Corporation.
Justice Felix Frankfurter: Are they authorized to do business in any formal way in Virginia?
Mr. Leslie Hall: Not until 1947, Your Honor when these two Committees, the Vote Right Committee and the Thomson Committee were organized just prior to the time that their officers were called to testify, they did qualify, but we were informed by the officers in Richmond that the NAACP itself is -- it incorporates in the parent body had been operating in Virginia since 1919 and never had made any effort to qualify under the laws pertaining to foreign corporations up until 1957.
The same thing was true with the NAACP Legal Defense and Educational Fund although they admitted they have been operating in the State prior to that time.
Justice Felix Frankfurter: When you say -- when you call attention to the formulation of the two subject matters in the subpoena problems relating to integration and problems relating to barratry control --
Mr. Leslie Hall: Yes.
Justice Felix Frankfurter: -- assume that one takes that in face value but may not the Chairman of the Committee disavow inquiry abstracted formulating the subpoena and say, “I'm not asking you about these things or what I'm asking you is not related to this document?”
Mr. Leslie Hall: Well, may --
Justice Felix Frankfurter: He may do that, may he not?
Mr. Leslie Hall: He could do that, yes.
Justice Felix Frankfurter: Now, what is your understanding of the record?
I'm (Voice Overlap) --
Mr. Leslie Hall: My understanding of the record is on page 73, Your Honor, when Mr. Scull was represented by Mr. Finelli at that time.
And when the statement prepared either by Mr. Scull with the assistance of his counsel was submitted to the Committee, he asked what the purpose of the inquiry was at that time.And in response to that question, Chairman Thomson said starting about the middle of page, “The subjects under inquiry by the Committee, Mr. Scull, are threefold.
One, several of which primarily do not deal with you but I will nonetheless state all three, the tax exempt or tax status of both racial organizations in Virginia and the contributions made by such organizations that is the taxable status in here, the integration -- it's rather the integration on the public school system of Virginia or the general welfare of Virginia.
Third -- the third one deals with the violation of certain statutes which are designed to prepare champerty, barratry, maintenance, or the unauthorized practice of law.”
So, he was informed at the outset in -- in addition to what was said in the subpoena itself.
Justice Felix Frankfurter: Yes, but the -- at -- does all of them -- one of the questions whichever way you look at it, certainly we have before us the demand, the compulsory requirement to answer this question, is that right?
Mr. Leslie Hall: That's right.
Justice Felix Frankfurter: And that compulsion was exerted by the Court and not by the Committee because the Committee as I understand it can say “You answer, you go to jail.
You have --
Mr. Leslie Hall: That's --
Justice Felix Frankfurter: -- to go to a court and get an order.”
Mr. Leslie Hall: Yes.
Justice Felix Frankfurter: Now, taking to -- taking at face value of what you exerted on page 73, what Chairman Thomson said to Mr. Finelli, the -- the bite of the thing is when you get into court and asked the Court to enforce answer.
And therefore if Mr. Thomson there changes position and told the Court, “We're not concerned with barratry,” then the case comes to us, puts that in that context and with that limitation.
Mr. Leslie Hall: Well, now, I think --
Justice Felix Frankfurter: Isn't that correct?
Mr. Leslie Hall: -- you have to refer back to --
Justice Felix Frankfurter: Supposed that's true, that would be so wouldn't it?
Mr. Leslie Hall: Well, if that were true.
Justice Felix Frankfurter: Yes.
Now, what is your understanding of the record on that point?
Mr. Leslie Hall: Well, now, we get to page 30 and Mr. Rauh was questioning Mr. Thomson before the Court and the matter came on before the Court on a rule.
And in that particular instance, Mr. Rauh said if -- about the middle of the page, “Is it correct Mr. Thomson that you referred to three different possible subjects on the inquiry on page four?”
And the answer was “That is correct.”
And then he goes on with some other questions when you get down to the bottom of the page.
That wouldn't matter if Mr. Justice Stewart was talking about --
Justice Felix Frankfurter: And he did connect the question right after that before.
Or that is correct.
Now, is it also correct that you said several which primarily do not deal with you as you do not, so as to grant the service (Inaudible) said it?
Mr. Leslie Hall: Yes.
Justice Felix Frankfurter: Which of those three were you referring to when you said (Inaudible) primarily do not deal with you.
I suppose “to you” as Scull.
Mr. Leslie Hall: I suppose so, yes, sir.
Justice Felix Frankfurter: Now, I was interrupted, but I thought that interconnected party is important.
Mr. Leslie Hall: Well, it's rather vague now or whether that's the -- the fault of the court reporter or whether it was -- what was actually said.I was there all the time and there was a lot of confusion back at the Court.
Justice Felix Frankfurter: Unfortunately, we were not been in the Court.
Mr. Leslie Hall: And there were a lot of words bending back and forth between Mr. Rauh and Mr. Thomson along that line but the last answer on the bottom of page 30 says “No, no.
I think in the connection that we are dealing with here.
The one spoken on first did not apply.
It only did allow one did apply that I was making.”
Justice Felix Frankfurter: Translate that, would you?
The one spoken of the -- [Laughter]
Mr. Leslie Hall: You've asked me to do the impossible, Your Honor.
Justice Felix Frankfurter: Well then, but we got to judge the matter on this record.
Mr. Leslie Hall: Well, I think -- and I want to go back and look back to --
Justice William O. Douglas: -- the preceding answer was pretty clear.
I suppose --
Mr. Leslie Hall: I think it was.
It said all three.
Justice William O. Douglas: But before that, you said that the ones on barratry didn't apply to Mr. Scull.
Mr. Leslie Hall: Well, yes.
Just before that would state for the record so that it is clear on the record which ones you were referring to that did not deal with Mr. Scull as to the violation of those statutes dealing with champerty, barratry, and maintenance, in general, unauthorized practice of the law.
Question, those did not deal with Mr. Scull.
And then the answer is the one that Mr. Justice Frankfurter is talking about is not clear to me or him either, I'm sure.
Justice William O. Douglas: But the other answer was there.
Mr. Leslie Hall: The only thing I could say Your Honor, in that respect is that Mr. Scull was definitely informed at the committee hearing what the purpose of the hearing was.
He was informed by the subpoena and also informed by the chairman at that time and on the basis of the information that he had, he still refused to answer any questions put to him by the Committee except for identifying questions such as his name and address and things of that matter.
Justice John M. Harlan: As I understand you (Inaudible) signed a little later by Mr. Thomson in that (Inaudible).
Mr. Leslie Hall: I did tell him that if Mr. Thomson has specifically waived that, that -- that would be binding I suppose.
Justice John M. Harlan: What about that?
Justice William O. Douglas: You don't treat this problem with three prime (Inaudible)
Mr. Leslie Hall: No sir, I don't.
I consider that all of the questions asked for Mr. Scull were preliminary only in nature.
None of them got to the need of the thing.
He was merely asked and that started the whole thing of “Are you a member of The Fairfax County Council on Human Relations?”
In which he refuse to reply and furnish the statement.
And from the then on, he used the statement as a basis for his refusal to reply to any other questions.
Justice Felix Frankfurter: Not only does the record show without dispute what the Fairfax Committee on Human Relations been to what was in security and controversy?
Mr. Leslie Hall: There is nothing in the record that shows what type of organization that was there in that corporation.
Justice Felix Frankfurter: For all we know, it might be acquired of anything as a matter they are.
Mr. Leslie Hall: That's true.
And, there would be no reason if that is so as Mr. Rauh pointed out that these various organizations that he was asked about happened to be a well recognized and well thought of organizations, there would be no reason for him to refuse to answer as to whether he had any connection.
Justice Hugo L. Black: Would that -- would that be any reason for asking him in connection with what you are talking about?
Mr. Leslie Hall: Yes sir, because we were trying to find out about the taxable status of organizations that promoted litigation.
We were trying to find out about whether to make any recommendations as to the tax exempt status with donations and contributions just like the organizations.
Justice Hugo L. Black: What -- what would his membership have to do with that question?
Mr. Leslie Hall: Well, it was probably proceeded a little bit further as to whether he was an officer and has a knowledge of the endless working of such an organization but we haven't got that for.
And to say these were only preliminary questions which couldn't possibly make Mr. Scull by answering yes or no or explaining what his connection was.
Justice Hugo L. Black: They couldn't possibly hurt him on the (Inaudible) with me to see I possibly had you cause by what -- who belonged to an organization assuming if you said that's a perfectly read organization, legitimate organization.
Mr. Leslie Hall: Well, missed but respect -- Mr. Justice Black, in my experience in trying cases, it's always necessary to ask a few preliminary questions in order to be able to lead up to something that you're really trying to get at.
Justice Hugo L. Black: Preliminary questions, but if they have no relevance here in the connection of the thing, what relevance his membership has to what you are really trying to find out of what on either phase of your inquiry.
Mr. Leslie Hall: That's right.
Justice Hugo L. Black: What relevance that his membership or non-membership he have?
Mr. Leslie Hall: He would have some bearing on it into this connection and that is if he had a membership in a certain organization, he would have probably some knowledge as to what that organization did, what his activities were.
He might know more but you didn't get to the question -- did he give to what he actually did.
Mr. Leslie Hall: He didn't give us a chance to get.
Justice Hugo L. Black: Well you could have asked him what it did.
Mr. Leslie Hall: Well --
Justice Hugo L. Black: -- all we know, he might have known all about what it did.
Mr. Leslie Hall: Well the way he was answering, we couldn't get anyway anyhow.
Justice Hugo L. Black: Well, he simply didn't answer whether he was a member or not.
Mr. Leslie Hall: Well, the only (Voice Overlap)--
Justice Hugo L. Black: -- was -- was any purpose of the investigation to pass a law making it unlawful then belong to this organization?
Mr. Leslie Hall: We're not being a member of the Committee but merely counsel for the Committee.
I wouldn't know what the Committee would recommend.
Justice Hugo L. Black: We've got to look at these ambiguous statements to find out.
Mr. Leslie Hall: Yes.
But now I want to say this.
And that is that -- he was only asked as to his membership in one organization.
He never was asked as to his membership in any other organization.
He was asked some other questions.
Mr. Rauh has counted them and he said there were 31 questions altogether.
Some of the other questions dealt with the matter of whether he had made any contribution to the carrying on of lawsuits of the B'nai B'rith.
He wouldn't ask whether he made any contributions to the B'nai B'rith.
Justice Hugo L. Black: He was asked whether the B'nai B'rith used his post office box number.
Justice Hugo L. Black: Suppose that would be making a contribution, wouldn't it?
Mr. Leslie Hall: Well it's very minor when I suppose.
Justice Hugo L. Black: But wouldn't be a contribution wasn't it if it were for the B'nai B'rith or --
Mr. Leslie Hall: Unless he charged them.
Justice Hugo L. Black: Or the Americans or Democratic action to use his box, I suppose that could be some contribution that he paid for the box, wouldn't it?
Mr. Leslie Hall: If he paid for the box himself but if he charged him for the use of it, of course that would be a contribution.
He was asked also whether he paid any attorney's fees in connection with any litigation in the State of Virginia in which he refused to answer on the basis of the same statement.
He was asked whether he paid any Court cost in connection with any of the cases which he refused to answer.
I think that was all a proper legislative function.
Justice Hugo L. Black: He did ask more than “Are you a member of the Fairfax County Council of Human Relations?”
And the very next question, “Are you a member of the National Association for the Advancement of Colored People?”
Mr. Leslie Hall: Well, that's the only other one that I recall, yes.
Justice Hugo L. Black: Well, I understood you stated in the Court --
Mr. Leslie Hall: Well, I -- if I -- I was incorrect in that.
We take the position, Your Honor that in view of his statement, page 75, that I've already referred to, he couldn't possibly be hurt in any way by answering the questions that worked with him and in fact he conceded that much in that statement that he did think.
He said that he fully recognized the public right to know the officers, directors and general purposes of every organization which sets example of the Court of public in any way.
But since this is a matter of public information, I have nothing to add and so forth.
We contend therefore that his refusals were purely arbitrary and well without any legal basis whatsoever.
Justice Hugo L. Black: Might he not be injured by answering whether he's a member of the National Association of the Advancement of Colored People?
Mr. Leslie Hall: I don't know whether he would or not, gentlemen.
Justice Hugo L. Black: And you say he couldn't be asked you if he might not be.
Mr. Leslie Hall: I don't know.
Justice Hugo L. Black: Well then, then you wouldn't say it that he couldn't be would you?
Mr. Leslie Hall: No, I wouldn't say he couldn't be.
I mean, you could be a member of a lot of different organizations and some people might not like if they hold it against you and trying to -- or try to exercise certain reprises was against you or ignore you and not everything to do with you just because you belong to those organizations.
Justice Hugo L. Black: I'm not arguing with you but you said that he couldn't be and I just asked you --
Mr. Leslie Hall: I -- I said I didn't see how you could be -- I believe this is -- now in conclusion, Your Honor, I -- it wasn't going to take very long.
Justice Felix Frankfurter: I hope you will deal what Mr. Raugh said that his duty to his client to consider the questions not nearly an isolated inquiry but as part and parcel related, legally related to a body of enactment or directed toward a given purpose, and the question in the resolution and the statute must all be dealt with as an organic (Inaudible) to understand his position.
Mr. Leslie Hall: That's his position, Your Honor, but --
Justice Felix Frankfurter: Have you any views on that?
If you have, I for one would like to hear them or you sit down.
Mr. Leslie Hall: I thought I touched on them briefly but I'll try to do it again and that is this.
I thought we were here on a record.
And there's nothing in the record that indicates anything with regard to a plan by the Commonwealth of Virginia about any of the other states mentioned in this Southern School News I believe it is which traces the history of certain legislation in a number of states.
That is something that was added to the brief that was furnished by the petitioner and there's no part of the record in this case.
Justice Felix Frankfurter: But -- but can't we take judicial notice of the enactments of the Commonwealth of Virginia?
Mr. Leslie Hall: Yes, sir.
No question about that.
Justice Felix Frankfurter: Or that, do we have to go to periodicals or the Evanescence daily newspaper?
Mr. Leslie Hall: But just because of the fact that certain acts were enacted by the General Assembly on the same day doesn't necessarily mean that they were all part of the general scheme.
Justice John M. Harlan: What about the Governor's statement that is quoted on page 8?
The Chairman was referring to the decision of the Court here.
And because of the answer I've just mentioned that I come to you before you today that the purpose is submitting recommendations to continue our system of segregated public schools.
Justice Hugo L. Black: Well you're quoting from the brief --
Mr. Leslie Hall: Now, well, I assume this is quoted correctly from the Governor's message to the session which enacted this legislation.
Well, I don't know if the Governor might have said that.
Justice John M. Harlan: Well, can't we --
Mr. Leslie Hall: Well, that's no part of the record here in this case.
Justice John M. Harlan: You mean that you you're claiming you can't properly take this into consideration?
Mr. Leslie Hall: Are we going to take speeches that are made by people and things that appeared in the Washington Post and Times-Herald news article?
Justice Felix Frankfurter: But Mr. Hall, really -- not -- not the Washington post, but I'd like to be informed if you think that enactment of a State and the official either message written by failure already communicated message of the Governor sponsoring legislation may not be taken judicial notice of by this Court assuming it's relevant -- assuming the man is irrelevant.
Mr. Leslie Hall: Well, I don't find anything in the message even if he -- it is a matter for which this Court can take judicial notice which says anything about formation of the Committee to investigate the violations of certain laws or changes in the certain laws.
Justice Felix Frankfurter: It may not -- can't we look assuming it's relevant -- and I'm making that assumption as an assumption.
Assuming it's relevant, may not this Court -- I ask again, go to the enactment of a State without any proof of the enactments in the records.
And further, go to the statements of the Governor in sponsoring legislation elucidating their meaning, setting forth their interconnection, defining their purposes, may not this Court take judicial notice of such official acts by governors and legislatures?
Mr. Leslie Hall: Certainly, the acts of the legislatures and maybe so the messages of governors but I don't find anything in the message of the Governor that deals with --
Justice Felix Frankfurter: Very well.
You -- you do not find the poison in it that Mr. Raugh find.
Mr. Leslie Hall: No, sir, I don't.
Justice Felix Frankfurter: All right, I can understand now.
Mr. Leslie Hall: And I don't find a poison in it because the acts were enacted the same day.
Justice Felix Frankfurter: But -- but then the fact that they're enacted the same day doesn't necessarily prove that they're connected.
Mr. Leslie Hall: That's right.
Justice Felix Frankfurter: But it doesn't exclude that they may be.
Mr. Leslie Hall: That's correct.
Justice Felix Frankfurter: And now we determine whether it's one or the other except through the enlightenment we get from counsel.
Mr. Leslie Hall: Well, I think that we have this one thing and we have the whole matter considered by the lower court.
We have a matter again considered by the highest court of the State of Virginia which upheld the lower court and the burden is on the counsel here to try to convince this Court that those two courts were wrong.
Justice Felix Frankfurter: I accept that.
Justice Potter Stewart: Mr. Hall, this speech with the governors was apparently not a -- not a political speech, simply quoted in the newspaper.
Apparently, it was a message he sent to the -- to a special session of the general assembly.
Was the -- in your State, does -- does the calling of a special session had to have a specific purpose?
Mr. Leslie Hall: I think it does.
It's my understanding.
Justice Potter Stewart: You know what the purpose of this special session was announced to be?
Mr. Leslie Hall: I don't know of any but my recollection of it was that it was for the purpose of enacting laws to cope with the situation in Virginia that was created by the decision in the Brown Case in the enactment.
Justice Potter Stewart: He's quoted on page 8 of the brief of the petitioner as saying, “I come before you today for the purpose of submitting recommendations to continue our system of segregated public schools.”
Would you concede that if the purpose of the creation of this Investigating Committee was to continue in Virginia, our -- the system of segregating public schools -- that would not be a proper legislative purpose?
Mr. Leslie Hall: If that were the only purpose of the Committee, I would say so.
Chief Justice Earl Warren: Mr. Hall, in the context of this case, I would like to ask you this.
You said that you conceded under our NAACP case last year that you had no right to ask for the membership list of that organization.
I ask if -- because it would violate the constitutional rights of the members.
Now I ask you if there is any constitutional difference between asking the organization for its membership on the one hand, and on the other hand, asking everybody you suspect to belonging to that organization if he belongs to it.
And if he will not answer, put him in jail?
Mr. Leslie Hall: Your Honor, I don't think there was anything in the case of NAACP against the Alabama that dealt with that point.
And I don't think it can be expressed to that point.
And I don't think there's anything wrong in calling an individual before a Committee and asking him about this membership.
Chief Justice Earl Warren: No.
That -- that applied -- of course, that case applied only to the request of the NAACP for its membership list --
Mr. Leslie Hall: Yes sir.
Chief Justice Earl Warren: -- but that was not to -- to protect the corporation.
That was to protect the rights of -- of the individuals, was it not who belong to NAACP and their right of association.
Now, I -- I ask you the question.
If it -- if that violated their rights, why wouldn't bring them in as individuals and compelling them to say under oath that they belong or did not belong to that organization?
Mr. Leslie Hall: Well, I think, Your Honor, if you're going to stretch the Alabama case that for --
Chief Justice Earl Warren: I'm not stretching it.
I'm just asking you if there is a different constitutional principle involved.
Mr. Leslie Hall: I think there is.
Chief Justice Earl Warren: Well, that's what -- I just like to have you state it, if you would.
Mr. Leslie Hall: Yes.
Well, I just say it is in that connection.
And as I understand the case of NAACP versus Alabama where the Attorney General sought to obtain list of membership that in that case, of course, there was a punishment to contempt and quite a heavy fine, if I remember it correctly.
If I understand that case correctly --
Chief Justice Earl Warren: Punishment --
Mr. Leslie Hall: -- it was to prevent -- the reason for this Court (Inaudible) was to prevent the heads of organizations from being required to furnish an entire list of thousands of members which might result in some bad effect on those individual members.
Now, if a member himself is called for a committee for the purpose of determining the things that we were trying to determine here, I don't think that that was even involved in the Alabama case.
If -- if an individual member is called before a committee for the purpose of trying to determine whether there was a need or lack of need for further legislation along these lines, then I don't think he has the right to refuse merely because of the fact that he happens to be a member of the organization.
Justice Felix Frankfurter: Mr. Hall, if I may pursue the Chief Justice's line of inquiry, aren't you -- on the one hand, you object to stretching the right in the case of the NAACP decision, but aren't you narrowing it beyond its essential significance or isn't that the core of that case, the right of constitution -- the constitutional protection of the right of people to foregather and associate themselves for purposes that are not outlawed.
Mr. Leslie Hall: Well, Your Honor --
Justice Felix Frankfurter: And therefore, if that -- if that's the core meaning of that case, the people have a right to get together --
Mr. Leslie Hall: Yes.
Justice Felix Frankfurter: -- and people have a right to associate.
Mr. Leslie Hall: Yes.
Justice Felix Frankfurter: People have a right to formulate their ways of promoting, solicit for lawful purposes.
Now, if that's the core of that decision, I'm not forcing to state the (Inaudible) of the opinion but if that's the essence of it and isn't that they need the same inhibiting effect or (Inaudible) by asking not the officers, but individual members.
If one person after another is summoned, he ask whether he's a member of the NAACP was potentially disastrous or disadvantageous consequences, which you agreed might ensue and isn't the same, isn't that right impaired seriously there?
These people have to go through all this business.
The likelihood of people not joining the NAACP is very considerable, isn't it?
Mr. Leslie Hall: Well, the only thing I have to say in that connection, Your Honor, is this.
As I said before that the only way that a legislative body can determine what legislation is appropriate is to -- to inform committees and call witnesses before the committees and make tons of fact and recommendations to the entire legislative body.
Now, if any witnesses called before a committee of a legislature whether it be of Virginia, Alabama, New Hampshire, New York, Oregon, Washington, any other State in the union can come before their committee and say, “I refuse to answer because of the fact that I think it -- it violates my rights under the Fourteenth Amendment and no legislative committee in any State in this union would ever be able to function in the legislatures of the States might as well go out of business.”
Justice John M. Harlan: Well, you can't --
Justice Felix Frankfurter: I --
Justice John M. Harlan: Excuse me.
Justice Felix Frankfurter: I understand -- I understand your position.
If -- if I may translate it to the concrete.
I can well understand that Virginia or any other State may withdraw tax exemptions from non-commercial enterprise.
I could well understand that you may consider that and therefore may call officers or even members in order to find out whether that particular so-called charitable organization is pursuing that charitable purpose or doing something else, is holding a lot of fairs and selling (Inaudible) et cetera, et cetera.
I can understand that if -- if you've got a record that establishes that.
Virginia may ascertain whether or not you should withdraw tax exemptions from all charitable organizations, make everybody pay.
But is the record here is susceptible of being put under that kind of a justification?
Mr. Leslie Hall: Your Honor, we don't have the record here of all of the proceedings of the Committee.
Justice Felix Frankfurter: Well, all we -- what we have and the only thing we can consider is what I call the right (Voice Overlap) --
Mr. Leslie Hall: Well, yes.
Justice Felix Frankfurter: -- business.
Now, within those two grounds covered, is there anything that -- that brings this record under the kind of thing that I am so badly sketched?
Mr. Leslie Hall: I don't see why not.
We are here on the proposition and I -- I think it's a very succinct proposition as to whether or not these questions were pertinent to the purposes for which the Committee was formed.
And I contend that they are.
Justice Felix Frankfurter: They -- abstractly whether they were correct.
Mr. Leslie Hall: Well, now, you're not going to be able to deal the record of any kind to make any kind of report to legislature without questioning somebody.
Justice Felix Frankfurter: No, I -- I agree with that.
And it may well be that if -- I'm not saying you might not have pursue inquiry and put some more questions directed toward showing that really what you are after is to find out whether tax exemption should be withdrawn.
Mr. Leslie Hall: Well, now, if you want me to go outside the record, Your Honor, I can --
Justice Felix Frankfurter: I don't --
Mr. Leslie Hall: -- tell you that there were some other inquiries along those lines.
Justice Felix Frankfurter: Well, [Laughter] I don't object that you're going outside of it but not for any purpose relevant to my job.
Mr. Leslie Hall: Yes.[Laughter]
The NAACP finds voluminous records to us -- about their financial operations.And certainly, other organizations did too.
Justice John M. Harlan: Well, they all --
Mr. Leslie Hall: Well, this was just in connection with the entire (Inaudible)
Justice John M. Harlan: The ultimate issue on this case is like the case that we've had before -- preceding it.This is a balancing process.
Mr. Leslie Hall: Yes.
Justice John M. Harlan: Now, if this record shows on the one hand that the -- under the NAACP case last year that the individual interest, constitutional interest, rights of this witness are involved and on the other hand, it fails to show a -- adequately what the State's superseding interest is, what -- what can we do with it?
Mr. Leslie Hall: The only thing I can say in regard to that, Your Honor, is that I think the record is replete with --
Justice John M. Harlan: You have to stand on that, don't you?
I mean, that's your ultimate position.
Mr. Leslie Hall: Yes.
Justice John M. Harlan: You say that the -- that the State's interest, overriding interest, is sufficiently shown by this record attested by the inquiry.
That -- that's your -- that's the single issue in this case, isn't it?
Mr. Leslie Hall: That's correct.
Anything else, gentlemen?
Justice Felix Frankfurter: You may have that but the record may not show it.
Mr. Leslie Hall: Well, we take the position that it does.
Justice Felix Frankfurter: Yes, I understand.
Mr. Leslie Hall: [Laughs]
Chief Justice Earl Warren: Mr. Rauh, you may proceed.
Rebuttal of Joseph L. Rauh, Jr.
Mr. Joseph L. Rauh, Jr.: I have no rebuttal, Your Honor.
There are just two facts of statement that I would like to call your -- two record references I would like to call to your attention.
At the bottom of page 29, the tax exemption --
Chief Justice Earl Warren: Of the record?
Mr. Joseph L. Rauh, Jr.: Of the record, Your Honor.
The tax exemption about which there's been so much discussion is squarely ruled out of the question under inquiry, that the last answer, “This is Mr. Thomson.
And I am asking Mr. Thomson what did he mean when he said several did not apply?”
And he said, “From my personal standpoint, I would say that the one dealing with the taxable status does not affect him here.
The taxable status was clearly outside of the case.”
Secondly, and I think there's --
Justice Potter Stewart: As he points out, he's speaking personally and he was -- maybe the legislature for which he was an agent would not have had the same opinion.
Mr. Joseph L. Rauh, Jr.: But under Sweezy, if Your Honor please, that's exactly the vice that was created there is that there is no clear channel of what the legislature and then the Committee wants.
Now, the only other facts of question I have is -- the factual answer I have is the question was raised --
Justice William J. Brennan: Mr. Raugh, just for my -- why did you -- do you pronounce the “Sweezy” and others pronounce as “Sweezy”?
Is Dr.Sweezy pronounced that way?
Mr. Joseph L. Rauh, Jr.: I'm not his client, if Your Honor please, and I had -- I've only picked it up by ear too.Maybe it -- may --
Justice William J. Brennan: Perhaps “Sweezy”.(Voice Overlap) --
Justice Felix Frankfurter: I can assure you it's “sweet”.
Mr. Joseph L. Rauh, Jr.: Well [Laughter] with such expertise, I will not make the mistake again.
The Fairfax County Council on Human Relations as to which a question was asked, “Was there anything in the record on the Fairfax County on Human Relations?”
In this leaflet “The Shocking Truth!” which is in the record, there is a page which is apparently an invitation to join the Fairfax County on Human Relations.
It seems to have a very distinguished officer and directorship.
And in addition, the only factual thing it says about it affiliated with the Virginia Council on Human Relations and the Southern Regional Council both as I understand is very distinguished organizations in the field of relations.
I have no further --
Chief Justice Earl Warren: Well.