NEW YORK v. O'NEILL

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Argument of Reeves Bowen

Chief Justice Earl Warren: -- New York, Petitioner, versus Joseph C. O'Neill.

Mr. Bowen.

Mr. Reeves Bowen: May it please the Court.

The question before this Court in this case is as to whether Section 942.02 Florida Statutes unconstitutionally interferes with the right of ingress and egress of a witness who is subjected to its terms in violation of Article IV, of the Privileges and Immunities Clause of Article IV, Section 2 and the Fourteenth Amendment.

This section is an integral part of a Uniform Act which is called Uniform Act to Secure the Attendance of Witnesses Within or Without a State in Criminal Proceedings.

The section which I was -- the Supreme Court of Florida held to be unconstitutional provides that when a criminal case is pending in a court of record of a State which has an active reciprocal legislation and the judge of that State makes a certificate when it -- a criminal case is pending or a grand jury investigation is either underway or is about to begin.

The judge makes a certificate to that effect and says in that certificate how many days the witness will be required.

They send that certificate down to the State where the witness is, which also has the same law.

And there, a judge of a court of record procures the attendance of the witness before it and he has two options as interpreted by the Supreme Court of Florida and it's a fair interpretation.

The judge, if there is a recommendation in the certificate that the witness be taken into custody and bodily delivered to an officer of the demanding State, the judge of the court there may, if he finds that's a desirable thing to do order such custody and delivery.

But even though the judge does not find in favor of that he may also -- he may issue a subpoena -- I mean a summons directed to the witness commanding him to go to the requesting State and there shall appear as a witness during the time specified in the certificate.

Justice Felix Frankfurter: Would you be good enough to tell us exactly what happened in the case before us from the beginning of the process or procedures to the culmination?

Mr. Reeves Bowen: Yes, sir.

If I -- there -- there's a debate that was heard, but actually this is what happened.

Mr. O'Neill was a resident of the State of Illinois.

His presence was desired in -- before a New York grand jury which was investigating the disposition of funds of certain union to one of which was the Distillery Rectifying Wine and Allied Workers International Union of America, and Mr. O'Neill, who was the president of that union, he's the chairman of the executive board and he is also the chairman of the welfare fund.

And his testimony -- and the -- and the investigation was -- was aimed at ascertaining whether there had been embezzlement or a conspiracy to embezzle the funds.

His testimony was deemed to be material and necessary and altogether at the question of misappropriation of funds.

Mr. Francis H. Clark, Assistant District Attorney, made an affidavit in which he outlined all of these facts.

He set up in that affidavit that efforts had been made without avail to procure Mr. O'Neill to come before that grand jury, to appear to testify.

It said that he had consistently refused to testify, that he had -- had rejected all of the pleas that have been made to get him to come voluntarily and there was no way to get him there voluntarily.

It was -- it was specified that they needed him for 15 days.

That certificate with Mr. Clark -- I mean the judge in New York --

Justice Felix Frankfurter: Was there reason given?

Mr. Reeves Bowen: Sir?

Justice Felix Frankfurter: Was there a reason given why he was needed for 15 days?

Mr. Reeves Bowen: I don't think that the -- that the -- that there's any detail given about why he was needed for 15 rather than 10 or 20, or any other number.

I don't think --

Justice Felix Frankfurter: But it was specified that his presence in New York was required for 15 days.

Mr. Reeves Bowen: That -- that is right.

Justice Felix Frankfurter: That he -- that he was to be made available for a period of 15 days --

Mr. Reeves Bowen: That is right.

Justice Felix Frankfurter: -- for the purposes of this investigation which you spoke.

Mr. Reeves Bowen: That is -- that is correct.

The judge in New York made a certificate in line with the affidavit and annexed the affidavit to it.

And in that certificate in accordance with the terms of the Act of the law -- of the Uniform Law, he -- had option, that he recommended that Mr. O'Neill be taken into custody.

It would -- had -- as -- as a ground work though, the -- the affidavit showed that while they haven't been able to get him to come they had found out that he was going to be in Florida on a certain date to attend a meeting of his union.

The -- this certificate with the next affidavit was presented to a judge in Dade County where Miami is located and he had Mr. O'Neill taken into custody.

Then he released him on bond, to appear before him at a later time.

As time went on, the -- Mr. O'Neill assailed the constitutionality of the Act -- of the law.

On --

Justice Felix Frankfurter: At a -- at a proceeding before --

Mr. Reeves Bowen: For a --

Justice Felix Frankfurter: -- one of the court judges with -- with -- and he was represented by counsel.

Mr. Reeves Bowen: Oh, yes, sir.

He said his present counsel represented him all the way through.

He assailed the constitutionality of the Act on the --

Justice John M. Harlan: Excuse me.

Was there a subpoena served on Mr. O'Neill as well.

Mr. Reeves Bowen: No, sir.

There wasn't any subpoena served because there's got to be a hearing under this Act before the judge can determine anything about whether to give him a subpoena or -- or have him delivered to an office of the -- of the requesting State.

And -- and the judge held the statute unconstitutional and therefore, there was no occasion to -- to subpoena him to go to New York or to turn him over to an officer.

Justice Felix Frankfurter: But on the basis of the New York document, your judge in Dade County issued what in effect was a warrant of arrest.

Mr. Reeves Bowen: He had him taken into custody and that is also authorized by the statute.

But he immediately, or -- or very promptly, released him on bond, and later when -- when the -- as the law was assailed on various constitutional grounds, and one of them was that it as a violation of the Privileges and Immunities Clause of the Federal Constitution.

Justice Felix Frankfurter: On appeal.

Justice John M. Harlan: And the courts passed -- your -- your Supreme Court passed, did it not, on both aspects of the statute?

Mr. Reeves Bowen: On both aspects of it.

The subpoena part --

Justice John M. Harlan: And the (Voice Overlap)

Mr. Reeves Bowen: -- and the custody and delivery part.

Justice John M. Harlan: Oh, yes.

Although --

Mr. Reeves Bowen: And the --

Justice John M. Harlan: -- there was no subpoena involved in the case.

Mr. Reeves Bowen: No subpoena actually ever was issued.

And the -- the court certificate which is made in order to clarify just what it did decide in the case specifically ties it to those two clauses of the Federal Constitution.

An appeal was taken by the people of the State of New York and the Supreme Court of Florida and it ruled the statute unconstitutional in both aspects as it being in violation of -- of Privileges and Immunities Clause because, says the court, it interfered with the freedom of ingress and egress of Mr. O'Neill or of anybody else that might be subjected to it.

Now, there -- there are many other things that occurred, but essentially, Mr. Justice Frankfurter, I believe that it will portray the factual situation.

Justice Charles E. Whittaker: Does ingress and egress mean of whom leave you now to the Supreme -- of Florida?

Mr. Reeves Bowen: I -- I suppose that's what our Supreme Court meant.

And I don't think anything you've said actually confined it to that.

You know the ingress and egress doctrine includes freedom of movement across state lines and within the State.

So that I think the doctrine embraces both the facts.

Now, that law provides that when the certificate is presented to the Florida judge, he must find that the witness is a material and necessary witness.

Not merely material but a necessary witness to.

And another thing he must find is that to subject him to the inconvenience of -- of having him to go to the other State to testify will not cause him undue hardship.

And, of course, those two things must be determined by the judge before he has any authority to proceed.

There are some doubts as to whether Article -- the Privileges and Immunities Clause of Article IV, Section 2 has anything to do with the case.

This Court said in Paul against Virginia that the sole purpose of the Act was to say to the States that whatever privileges you grant your own or establish for your own citizens, those you should allow the citizens of other States no more, no less.

And in Maxwell against Bugbee, this Court said the purpose of that provision was to prevent discrimination were allowed -- there's no discrimination manifestly because the law applies to residents of Florida as well as to citizens of other States.

But, I desperately say that I -- I have no doubt of the proposition that the Fourteenth Amendment which protects the rights of national citizenship, it protects the right of free ingress and egress and I believe that if there were no constitutional provision on privileges and immunities at all, that it would be inherent in national citizenship that the right of ingress and egress would be inherent in that citizenship.

So we -- we start off with a proposition that -- that a citizen does have the right of ingress and egress, but that is not an absolute right.

Now, this Court said in Tumor against Witzel that -- that the -- the Privileges and Immunities Clause was not like many other constitutional provisions.

It was not an absolute.

And there isn't any question but what everyday a State's constitution that literally restricts the rights of free ingress and egress in various ways.

In --

Justice John M. Harlan: This -- does this mean on the theory that your Court decided it that if Florida itself has arrested one of its citizens in relation to being a witness in a state court proceeding, a Florida proceeding, would that that kind of a statute be unconstitutional?

Because that's certainly --

Mr. Reeves Bowen: Because if I understand you --

Justice John M. Harlan: -- a State, and the period demand ingress and egress --

Mr. Reeves Bowen: -- if I understand your question, I cannot attribute to the Supreme Court of Florida the thought that Florida express that the courts of Florida are powerless to subpoena a witness within Florida to come to the court without violating the Federal Constitution.

Is that -- is that what you're thinking of?

Justice John M. Harlan: Or arrest them (Inaudible)

Mr. Reeves Bowen: They have a right to arrest him under circumstances which it required.

For example, he was subpoenaed because he doesn't come.

The Judge issued a bench warrant, send the sheriff out, and gets him and brings him in.Our court never has meant to say that.

I don't think they actually said it and -- and they wouldn't say it.

And the question was brought before.

Justice Felix Frankfurter: But the subpoenas belong into your courts in the northern part of Florida run to the extreme south?

Mr. Reeves Bowen: Run throughout the State.

Justice Felix Frankfurter: Run throughout the State.

Mr. Reeves Bowen: Run throughout the State.

Justice Felix Frankfurter: Anybody can be hauled up from the tip to the -- to the border.

Mr. Reeves Bowen: Arrest warrants can be served anywhere in the State and so can a witness subpoena.

Justice Charles E. Whittaker: And made, that was under your law the (Inaudible) may be incarcerated as a material (Inaudible)

Mr. Reeves Bowen: I'll have to say that we have no statute on that serves to my knowledge.

We have no court decision at all in an appellate court to my knowledge, but I have known as it being done and it's assumed generally that it is -- that it's -- it's proper to do it.

But I -- I can't vouch as to any Supreme Court decision or in a statute which deals with the matter.

Justice Felix Frankfurter: Have you any -- have you a provision in your laws of in general like the -- or with the statute in the federal law so that the persons, the writ of ne exeat which is ancient --

Mr. Reeves Bowen: We have --

Justice Felix Frankfurter: -- which is as ancient as the common law.

Mr. Reeves Bowen: We have that in Florida.

Justice Felix Frankfurter: You have that in Florida.

Mr. Reeves Bowen: Yes, sir.

We have.

Justice Felix Frankfurter: Specifically?

Mr. Reeves Bowen: We have that statute, writ of ne exeat.

Justice Felix Frankfurter: So that you can prevent a fellow from taking a comfortable trip to France or the Riviera or the -- or La Antigua or anywhere.

Mr. Reeves Bowen: Let me -- let me say that according to my recollection, the writ of ne exeat, I think our statute probably restricts it to cases involving divorce and custody of children and alimony and things of that sort.

Justice Felix Frankfurter: But if a fellow is indicted for a serious crime in Europe and the Attorney General's office or whoever prosecutes in Florida has noticed that he will take a plane tomorrow?

Have you politicians to ask for a writ of ne exeat?

Mr. Reeves Bowen: I haven't -- I don't believe our statute covers that sort of situation and I have --

Justice Felix Frankfurter: There's nothing on the constitutional ground.

Mr. Reeves Bowen: I have never known of -- of it being done.

The only time that a man isn't bailable in Florida is for when the charge of a crime is where it's a capital crime and the proof is evident or the presumption great.

In all other instances, he is entitled to bail when charged with a crime.

He is not entitled to bail when he sought to be extradited as a fugitive from justice for example.

There's no provision to bail and our court has said he's not entitled to bail.

There is no appeal from one of habeas corpus adverse decision.

Justice Felix Frankfurter: What about the renditions, state -- interstate rendition.

Suppose Illinois and California asked your Governor to surrender a fugitive from justice in Illinois and California.

Have you a machinery for that?

Mr. Reeves Bowen: Oh, yes, indeed.

We are -- we operate under the -- under the federal extradition statute and we also operate under the uniform state extradition statute which goes into appeal not covered by the federal statute.

For example, Section 6 of our uniform extradition law provides that, for the extradition of a man who's not accused, the federal law covers all the fugitives.

A man who commits an act in another State and the one he's charged in which intentionally results in a crime in the State where he is --

Justice Felix Frankfurter: He can cross the border, choose to cross the border.

Mr. Reeves Bowen: Well, he doesn't have to do that.

He can -- he can fail to perform his duties to look out for his defense.

And they could just -- we haven't had that decision in Florida but I have found decisions in other courts interpreting that feature which says that if that law is applicable to the man who flees and leaves his defendants behind, he takes care of him until he gets going and -- and maybe for a while after.

So he's not in the demanding State when -- when he actually quits providing for them.

Justice Felix Frankfurter: You may -- may I suggest to you that that question however is being -- that kind of legislation is also being called into question before this Court.

Mr. Reeves Bowen: I didn't know --

Justice Felix Frankfurter: But we have not yet adjudicated that.

Mr. Reeves Bowen: I -- I didn't know that.

I -- I -- would confidently urge if I were dissenting that legislation that it has a very sound basis.

I -- I want to discuss extradition a little bit later or somewhere along that line.

In Coppage against Kansas, this is Court recognized that the Fourteenth Amendment does not preclude an incidental restriction of personal liberty and there are ingress and egresses personal liberty where it is incidental to the accomplishment of a paramount objective in the public -- interest of the public welfare.

In Panhandle Eastern Pipe Lines Company against the State Board of Kansas, this Court said that the police power, and I believe that it -- the reserved sovereign police power justifies this Act.

That the police power springs out of the obligation of the State to protect the life, liberty and property of its citizens and to promote good order among other things.

In (Inaudible), this Court recognized that the police power was reserved in the States at the time of the adoption of the Federal Constitution that the Fourteenth Amendment did not interfere with the State's police power to adopt legislation which looks after the welfare of its people.

I think there -- there can be no question with what I said with this Court in Queenside Realty Company against SAXL, that the police power is one of the least limitable governmental powers.

Now, where -- where does all of that tie into this Act?

I think it ties in because it is a question of necessity which is involved.

Now, the State of Florida adopted this law, not for the primary purpose of helping New York or anyone of the other forty-one jurisdiction, the forty-three in all, which have adopted it.

That wasn't Florida's paramount purpose.

That purpose was to help Florida and the -- the investigation and prosecution of criminal conduct.

Florida had to give the other State the same consideration when it or the witness out of Florida that Florida was looking for familiars.

It just acts reciprocally.

Of course, no State would give Florida a witness and it was imperative that if we were going to get any witnesses from other States, we would have to give them like consideration.

Now, it is perfectly apparent that it is of no help to Florida to procure the jurisdiction over the defendant himself by either arresting within -- within his own bound or by extraditing from another State and then tell Florida you have no way of procuring a witness without which you can't prosecute this felon, where the -- the defendant himself, his presence is utterly valueless to a State unless it can get a necessary witness from -- from wherever he can be obtained under this Act.

And I -- I believe that it is just as important to permit the State to furnish witnesses to each other under this law as it is to furnish him a means of extraditing defendants whether he's a fugitive from justice or is non-fugitive.

The -- the matter is -- is one which must have legislation, if it's to be held.

There's no way that I can conceive of that two State or two or more States could arrange for swapping witnesses in the absence of legislation as along the lines of the Florida Uniform Law.

Justice Charles E. Whittaker: This Act is reciprocal as --

Mr. Reeves Bowen: Oh, yes -- very -- yes, sir.

It doesn't operate in New York's favor or by its various terms unless New York has adopted a reciprocal provision.

Justice Charles E. Whittaker: This is the Uniform Act?

Mr. Reeves Bowen: This is Uniform Act, sir.

Justice Charles E. Whittaker: How many States are there?

Mr. Reeves Bowen: The 41 -- 42 States and Puerto Rico had.

Justice John M. Harlan: In this -- in this instance Mr. Bowen, the State of New York came in and asked for a habeas or an arrest.

Mr. Reeves Bowen: They recommended primarily the taking into custody but -- but the --

Justice John M. Harlan: Taking into custody.

Mr. Reeves Bowen: -- their application according to our Supreme Court was bold enough to request a -- a subpoena request on that offense.

Justice John M. Harlan: Well, what -- what I was going to -- what I was going to ask you of this is the -- the State that wants rendition wants the witness and comes in and says, “I -- we want just to arrest him.”

Does your local judge, under your local court under the Act, not withstanding, and have authority to say, "No, I don't permit --

Mr. Reeves Bowen: Yes, sir.

Justice John M. Harlan: -- his arrest but you can subpoena him.”

Mr. Reeves Bowen: Yes, sir.

He -- he can say no to that.

But if the prerequisites of that, he can still issue the subpoena.

Justice John M. Harlan: Yes.

Mr. Reeves Bowen: With -- without taking him into actual custody.

The -- it -- it is so off in the case that a witness doesn't want to go and testify.

In fact, he will dig in his heels to keep from going and testify in another State.

Maybe -- it's not unknown to the annals of history that witnesses have been bribed to refuse to come when they were asked to come or -- or of organized crime is a big factor in this country and it wouldn't have States to go at the end of the lengths to protect its agents.

It would --

Justice Charles E. Whittaker: It was not localized.

Mr. Reeves Bowen: Sir?

Justice Charles E. Whittaker: It is not (Voice Overlap) --

Mr. Reeves Bowen: Oh, it -- it covers -- covers the landscape.

It just depends on the size of the (Inaudible) either as to how many States it takes in.

It wouldn't hesitate a minute to -- to shuttle a witness across state lines to avoid having him in the prosecuting State.

Justice Charles E. Whittaker: Or even going next door.

Mr. Reeves Bowen: Oh, that -- if it's any -- that if it's important enough to them, they -- they'll do anything.

I've even heard they killed some of them, to get him out of the way.

But -- but certainly, they -- they have no conscience.

They -- they (Inaudible) to do whatever it takes to keep a necessary witness from being available for the purposes of a prosecution.

And all they've got to do is shuttle him across the state line or if you suggest to Mexico and some they'll notice at the state prosecution where is -- is going on.

Because secure in the knowledge that so long as they don't let him get back across the line that -- that they have the State's powers to conduct a prosecution.

I -- I believe that -- that it's no less important, the States have a method of procuring witnesses from each other than it is that they have a -- a way of procuring fugitive from justice.

Now, this Court has dealt with extradition on a number of occasions.

Respondent's brief takes to position that there's no power in any State to legislate on extradition save as that power is conferred by the United States Constitution and statutes.

Well, that isn't what this Court said in Innes against Tobin.

The Texas case where the -- where the woman had fled from Georgia to Oregon, she was extradited from Oregon to Texas.

And according to the wording of the -- of the federal statute which I might point out is more limited in its scope than the constitutional provision would have authorized Congress to enact.

The federal statute authorized extradition only from the State to which she had fled.

And she had not fled to Texas.

Therefore, she could not be extradited under federal statute.

But in that case, Texas had a state statute which was invoked and she was ordered extradited under the state statutes which -- which was wholly undetermined and not authorized by the federal statute or Constitution.

And this Court affirmed that upon the proposition that the Congress, by not including a provision for extradition of that sort, had left the field open to the same place or they left the -- the authority in the same place where this was then before the words in the Constitution, that is, in the States themselves.

And that -- that decision was not based on anything at all except -- I mean it just -- it did one thing.

It upheld a state statute which was an independent enactment not dependent upon the federal law for its validity.

Now, in Kentucky against Dennison which I don't claim to be in point, but which I think has a good analogy, this Court recognized that even without the extradition provision in Article IV, Section 2 that the States would have had the right in their own self-interest and as an act of comity to furnish each other of -- of persons accused of crime.

In other words, make him available to the fugitive from justice for example without benefit of any constitutional provision.

The Court said that rather than -- than take the position assumed by the Government of -- of Ohio, on a certain point, it would have been better to have left that clause entirely out of the Constitution and left it up for the State to -- to have and no one else.

Well now, if the States -- and I think that case is clearly authority for that -- would have had the -- the power to enact legislation for the surrender of fugitive one to the other without any federal constitutional provision.

If they're to have that power, why then do they not have the correlative power to legislate so as to pass witnesses back and forth because without witnesses, there can be no defense against crime.

You cannot curb or -- or punish crime unless you got the witnesses to do it with.

Now, to get a -- a hold to these venues of that -- that you mentioned, Mr. Justice Frankfurter, about the uniform state of extradition law, I believe that comes from the doctrine of Innes against Tobin.

That where the Federal Congress when in the first place, the -- the United States Constitution deals only with fugitives.

It does not say anything about it but -- and the statute likewise to this.

But take the Innes case and the -- and the Kentucky against Dennison cases together and they seem to mean that since it is not covered by federal law in any way, and since the States have the inherent power to do it while the federal law has not preempted the field, while then the -- they would have the right to pass that uniform state of extradition law.

Justice William J. Brennan: Mr. Bowen, do you think the Federal Government could pass a -- a federal statute to accomplish what this Uniform Statute accomplishes, namely providing a witness in one State for another State?

Mr. Reeves Bowen: I have some question in my mind about the power of the Congress to do it because it's not in aid of any federal governmental power.

It's a -- it's a -- a statement.

Justice William J. Brennan: And your feeling is unless it can be done as done here, it can't be done at all?

Mr. Reeves Bowen: I don't know of any way to suggest that it can be done except in this fashion.

Justice Felix Frankfurter: From -- what do you say of the compact, Mr. Bowen?

Mr. Reeves Bowen: Well, it might be that a compact would be upheld by this Court.

It's never been -- this particular type of situation has never been before the Court.

The -- the -- some of the state courts have held that these statutes are not compacts and indeed I don't think they meet the -- the required -- the definition of compact that this Court has laid down.

Justice Felix Frankfurter: That, there have been, had there not, compacts between States for --

Mr. Reeves Bowen: To order -- to order --

Justice Felix Frankfurter: (Voice Overlap) subpoenas and so on.

The border States for instance.

Mr. Reeves Bowen: You mean an officer of one State going to another State and try to subpoena?

Justice Felix Frankfurter: Of -- yes or where the river divides two States.

Mr. Reeves Bowen: There may have been, Your Honor.

Justice Felix Frankfurter: I think there are such compacts.

Mr. Reeves Bowen: I -- I don't know of one of that kind but it -- there may have been.

Justice Felix Frankfurter: Then they ought to get forty odd states to agree to a compact.

It's a -- quite a little job, is it?

Mr. Reeves Bowen: It -- it would be quite a tremendous job and I'll tell you what would -- would heighten the difficulties.

A careful reading -- I can't say I've read them all but I've looked at Uniform Laws, annotated.

I would suppose, point out the differences between the several States even adopting this statute, be a little modern day (Inaudible) one state will -- will add a little thought here and take off one there, that the other States leave in.

And if you can't get forty-three jurisdictions to it to enact the identically the same statute in words, it -- it would be even harder to get them to sign up for a written agreement for example, on the same thing.

Justice Felix Frankfurter: Now, as to this Uniform Statute, Mr. Bowen, had that been adopted in precise terms in its identity in all the forty-two states?

Mr. Reeves Bowen: No, sir.

I -- I meant to say just now that there were minor variations.

Justice Felix Frankfurter: As to this very statute.

I know of it.

Mr. Reeves Bowen: This -- this statute here --

Justice Felix Frankfurter: And of course if you have minor variations in the statute, you begin to get variations in court decisions and all the consequences of such differences.

Mr. Reeves Bowen: That could be so.

But basic --

Justice Felix Frankfurter: I don't mean -- I don't know about this statute.

I don't know --

Mr. Reeves Bowen: -- but basically, the fundamental framework of it I think is the same with all the States.

I don't -- I don't believe there's any question, a serious question be raised about the fact.

Chief Justice Earl Warren: What is the character of the minor -- minor deviations?

Could -- do you have any in mind that would --

Mr. Reeves Bowen: Yes, sir, I can tell you one.

In Florida, Section 942.01 gives some definition.

It -- the -- the uniform law as it was first recommended by the Conference of Commissioners on uniform state legislation, defined -- I believe that the word "prosecution" -- anyway, the -- the scope of that, is what it had to do with it.

And it -- it said that -- that you in effect -- the effect while that you could get witnesses in any prosecution or grand jury investigation and the Florida Legislature added the words, “held by the State or defendant”.

Chief Justice Earl Warren: Held by the State or what?

Mr. Reeves Bowen: Or the defendant.

I say that they added the words "held by the State or the defendant".

What they apparently meant was to try -- was to make the Act available to a defendant as well as to the State.

Now, of course, that part of it, insofar as the defendant's rights are concerned, would depend upon, if it -- if Florida wanted a -- a witness from New York for a defense in Florida, and if New York didn't -- had not added such a provision as that, why of course, Florida couldn't get him because there's no reciprocal operation as to that one thing.

Chief Justice Earl Warren: Did any of the States reserve the question as to whether they -- they would arrest people in their State at the request of the other State?

Mr. Reeves Bowen: I don't recall having noted anything of that sort.

Frankly, I have analyzed the whole thing and -- and uniform laws annotated but -- but I -- certainly, nothing of that sort made an --

Chief Justice Earl Warren: Yes.

Mr. Reeves Bowen: -- impression on me.

Chief Justice Earl Warren: Yes.

Mr. Reeves Bowen: And I -- I don't believe that -- I think that -- that it -- you have probably be found that the Act is exactly the same words everywhere, are on the -- the question of arresting and --

Chief Justice Earl Warren: Yes.

Mr. Reeves Bowen: -- taking him into custody.

Justice Felix Frankfurter: Putting -- putting the question of constitutionality to one side from the point of view of -- forgive me -- of achieving the purpose in pertaining the objective of this uniform legislation, the power of arrest is almost essential for the mechanics of it, isn't it?

Mr. Reeves Bowen: It is -- it is imperative for this reason.

Unknown Speaker: No.

Mr. Reeves Bowen: Because you take in this case right here, Mr. O'Neill.

The chances are very good.

There's enough showing laid out in the certificate, and Mr. Clark's next affidavit to cast serious doubt upon whether Mr. O'Neill would have gone to New York if you just issued him a subpoena.

Illinois doesn't have this reciprocal Act, they have it enacted.

All he had to have done to get a subpoena was to catch a plane back to Illinois and -- and he would have been safe.

As long as he stayed out in Florida and New York, nobody could touch him.

Nobody could make him go to New York to testify.

Nobody could punish him for not obeying that subpoena.

So -- and -- and there are many instances I can conceive of.

For example, where a crime syndicate is put in the pressure to get a witness out of the state, if you don't grab that witness and hold him and turn him over to an officer, he isn't going to stick around just for being subpoenaed.

He'll -- he -- he'll leave the State and then you can't punish him for anything if he leaves the State and -- and leave you helpless.

Justice Felix Frankfurter: Or in -- in this case on what you've just told me, I didn't know.

If he'd remained in his home state, that would be a permanent asylum for him.

Mr. Reeves Bowen: Exactly.

If he'd stayed in -- in Illinois, he had taken the plane to Illinois and -- and stayed there -- and --and unless and until Illinois adopted the Act, that'd be the end of it.

Justice John M. Harlan: What would be -- supposing on his trip back from Florida to New York, he passes through an immediate State particularly one that has no -- hasn't a Uniform Act of this kind.

What authority does the officer got to hold him in custody in that State?

Mr. Reeves Bowen: Well, sir, that would impose a problem.

Certainly, if in a State which has enacted the law, it seems to me has put its stamp of approval upon the matter but I believe the -- what, the equivalent of Article 942.05, I think that's the section which guarantees him that the -- the right of arrest while on -- on social process while going through that State and -- and all the States have adopted it, it seems to me like or even without any expressed provision.

Let's say he came to Virginia, and Virginia has this law.

And the question arises in Virginia.

He -- he just asked again a writ of habeas corpus in the Virginia Court and he raises the question of what right does a New York officer has got to detain him in Virginia?

Well, Virginia having the self same Act, I believe would necessarily reject that claim.

Justice William J. Brennan: But Mr. Bowen, supposing --

Justice John M. Harlan: Well --

Justice William J. Brennan: So is wouldn't be a full-pledge of course, obligation upon Virginia to recognize the order of Florida by which the custody was turned over to New York officer?

Mr. Reeves Bowen: There might well be, sir.

That's the thought that I haven't had.

But it -- it might well be this full pledge and credit would require recognition of -- of that order.

But -- but -- in addition to that, I think that if Virginia had the law that it -- it -- it has impliedly, at least, said to the officer in New York, "You can bring this man from Florida through here and we won't interfere with it."

I believe that's the necessary indication of --

Justice John M. Harlan: What about the -- what about the situation where he's passing through a State which there's not been such a law?

Mr. Reeves Bowen: Well, there could be a problem arise if that situation should come up.

There will -- could be a --a real problem involved.

I'll say this though.

Of course as Mr. Justice Frankfurter has pointed out, and it's something I didn't know that the -- the Court had before this Uniform Criminal Extradition Law --

Justice Felix Frankfurter: Defendant, that in the case of -- of a defendant -- of defendant's liability that follows --

Unknown Speaker: Non-support.

Justice Felix Frankfurter: (Inaudible)

Mr. Reeves Bowen: Well, let's (Inaudible) that resorted to for that purpose.

Justice Felix Frankfurter: Yes, I know.

Mr. Reeves Bowen: And some -- some States of course have upheld that application of it.

But under that Act, I don't -- I don't believe that all of the States have adopted it.

I put it in my brief how many had.

It seems to me that it's about 40 or a little bit more but less than all I believe.

And there's been no problem which has arisen concerning the question of whether the agent of the demanding State had the right to the custody of the prisoner or not.

I've never run across that in any court decisions.

It's -- his right to the custody has been honored apparently in every State through which he has gone.

Justice Charles E. Whittaker: Well, doesn't Mr. Justice Brennan's suggestion require that both taken in credit.

Surely, you couldn't see the law that in order for a State to obtain a person from another State that every State through which the docket might pass would sustain the extradition or the procurement of the person?

Mr. Reeves Bowen: Sir, as I said, the -- the suggestion taught me things that I have never considered that.

It sounds good to -- I have researched.

I don't know where I could find any law and if I did --

Justice Charles E. Whittaker: But that's on principles.

Mr. Reeves Bowen: They sound less on principle.

I say if that --

Justice John M. Harlan: I suppose the one answer to my own question might be that whatever the situation as regards the intermediate State, that ought not to serve judicially of the Act of Florida that has taken him into custody which is all that's involved here.

Mr. Reeves Bowen: I -- I -- don't think the other question is -- is necessary to be considered in this connection of this case that because no such question is before the Court as I see it.

Let me give you one more attack on this question of necessity for -- for -- getting the witness.

Most -- every one of the States have the confrontation which requires discretion of presence of the witness so that the defendant could confront.

In -- in most of the States I understand that that's backed up by a constitutional guarantee, by the State's constitution.

Well, if -- and you can't use a deposition against that no matter if you've got the one witness that saw the determinate -- shoot the -- the -- murdered person down.

And the only one that you can tie him to the crime at all maybe -- and that witness is in Alabama and we want him in Florida, we can't use the deposition.

We -- we got to get the witness into Florida.

And that's the way it is in most, all of the States.

Now, you might say of course, that that rule doesn't necessarily apply to a grand jury investigation, but it's my information that many of the States don't permit -- the law doesn't permit the use of deposition for venues.

We never heard of it in Florida, never heard of a deposition for a grand jury against the defendants at all.

It has bee been in our, I don't -- I'm not aware.

Now, the defendant himself can take deposition to be used at his trial but the State can't do this just to put the witness before him to confront him and so he can be cross-examined.

And there -- there is still another thought on that matter.

If you could use deposition in all similar proceedings against a defendant, they are noted for not being of anything like equal value to the life, flesh and blood of the witness who comes up before that jury, they can see him and hear the sound of his voice.

They can evaluate him and -- and could work on his testimony, yet utterly impossible in a deposition.

So -- so you take two educated people, one inherent liar and the other a person, a truthful man and you let them make a deposition and one of them lied about the truth, while another tells the truth, this usually -- they'll -- in the -- in the deposition and will disclose which one is the truthful man and which one is not.

Justice Potter Stewart: Incidentally --

Mr. Reeves Bowen: And --

Justice Potter Stewart: -- Mr. Bowen, that -- actually, this -- this statute applies only to benefit the prosecution in a criminal case, doesn't it?

Is it available to --

Mr. Reeves Bowen: (Voice Overlap) --

Justice Potter Stewart: -- witnesses --

Mr. Reeves Bowen: And I'll go to that --

Justice Potter Stewart: -- the defendant --

Mr. Reeves Bowen: Florida added a provision, the 94101 the definition which I construe to extend its benefits to the defendant, but that is not the original proposed Uniform Law and that is not the provision that was adopted by most of the jurisdictions.

In fact, insofar as I'm aware it's unique to Florida.

Justice Potter Stewart: And it -- I gather that is your interpretation of the Florida --

Mr. Reeves Bowen: Yes, sir.

That (Inaudible) sense, that's my interpretation.

Justice Potter Stewart: Variation.

But this has not been decided by the courts.

I -- I remember one --

Mr. Reeves Bowen: The Supreme Court of Florida called attention to that in its opinion.

Justice Potter Stewart: Yes.

Mr. Reeves Bowen: It mentioned that and -- and I made the argument there somewhat like a -- may get on the same general lines that -- that it would justify, as a matter of necessity, in order to enable a State to protect its citizens against crime and to preserve safety and good order of society.

And in endeavoring to cast it down on that, Mr. Justice Thomas who wrote the opinion made some observations which tended to give that and he felt there was nothing to my argument because it was also available to the defendant under this particular added clause in the Florida statute.

But whether it's available to the defendant or not, to my mind in the least, detract from the power of the State to protect itself -- its citizens against crime by enacting this law, regardless of its application to the defense.

Now, may it please the Court, that -- those are the questions I think is before the Court, purely a question of ingress and egress is what the certificate of the Supreme Court of Florida said they decided.

That's the only thing I briefed.

It's the only thing I came here to argue and I believe that includes my argument, unless I should have an opportunity to make some rebuttal, and desire to do it.

With that --

Chief Justice Earl Warren: You may -- you may Mr. -- you may reserve your time, yes.

Mr. Cushman, you may proceed.

Argument of L. J. Cushman

Mr. L. J. Cushman: Mr. -- Mr. Chief Justice and Associate Justices.

This, I consider a very important case.

In fact, I suspect it is a case important to the practicing lawyer, much more so, than many of the cases which reached this Court.

I want to call your attention at the outset to the fact that there are two aspects to the Act which is under consideration here.

First, is that aspect which provides that the judge in the demanding State may in his certificate recommend that the desired witness be taken into immediate custody and be delivered to officers of the demanding State to be returned to the demanding State, as a witness before a court or grand jury in that State.

The second aspect is, that which provides for the issuance of a witness subpoena in Florida, let us say, directing the witness to appear as a witness and testify before a court or grand jury while he's halfway in the State of New York.

Now, these two aspects of the Act were both passed on by the Supreme Court of Florida.

In some respects, the questions which I think control the decision of the Supreme Court, on the first aspect of the case, likewise of necessity would control the decision of the Supreme Court of Florida on the second aspect of the question.

I should like to discuss both aspects briefly.

In the first place, we are in this country, a union of states.

The Federal Government has certain powers and a field in which it operates.

I want to talk to you now about the constitutional power and authority of the States to adopt a law providing that a person, a citizen, who is not charged or suspected with having committed any crime in any State, may be seized unceremoniously and hauled off as a prisoner to a distant State.

Does that constitutional power exist?

I respectfully suggest to you that it does not.

In the first place, in the brief which I filed on behalf of the respondent, I have reviewed at great length, perhaps greater length than the circumstances might justify, the decisions on this subject of interstate rendition of fugitives from justice.

And I am of the opinion, and it was my conclusion that this authority from every corner, from every court have always held that the power of one State to surrender to a sister State even a fugitive from justice, is derived from and rest solely upon Section 2, Article IV of the Constitution of the United States and the federal-enabling statutes which were passed to implement that constitutional provision.

And it is my argument, it is my contention, that if he required that constitutional provision and those federal implementing statutes to authorize one State to surrender to a sister State a fugitive from justice, then surely a like authority must be required and must be necessary to authorize the seizure and arrest of a citizen not charged with any crime in any State and his transportation against his will in chains perhaps but certainly as a prisoner to a distant State, merely as a witness.

Now, Mr. -- the Attorney General, my esteemed friends on the other side has argued to you all about the difficulties of securing witness.

I'm aware of those difficulties.

But I say his argument proves that you must.

I suggest to you that no such power exists.

That is the power to seize and surrender a citizen charged with no offense to a sister State.

And if that could bring -- his argument were correct, I think there's a much more direct way to go at it.

There's a much more direct way to reach the same result.

If it can be so, if my friend's argument is valid, if the police for example, authority, then I'd say the very power that he invoked should be sufficient to authorize the State of Florida to dispatch enacting that the courts of this State shall have complete authority to issue a witness subpoena, to turn him in, in the courts of any State in this country which has enacted their law in such cases providing for the issuance of witness subpoena returnable in the courts of any other States.

Justice Charles E. Whittaker: May I ask you, Mr. --

Mr. L. J. Cushman: Yes, sir.

Justice Charles E. Whittaker: Did you see any invalidity in a statute in Florida which was provided, without saying or might incarcerate a witness, proximately about construing (Inaudible) and it was material to an action pending in court?

Mr. L. J. Cushman: Mr. Justice Whittaker, I would be less than frank if I've said that your question has not given me considerable concern before I came here.

But my answer is this, and I think this is the answer.

That within the boundaries of the State of Florida, in the enforcement of the laws of Florida, and in securing the attendance of witnesses in the courts of the State of Florida, it may be that the Legislature of Florida would have authority to pass for authorizing the attachment of a witness, authorizing a requirement that he give bond for a period in that State.

But, I suggest to you that that is no different than the question we have here.

And while I'm on the subject, today it was required of me that I refer to three cases which are in the brief: One is McLean against Mississippi in 95 F.2d, in which the Court of Appeals for the Fifth Circuit, in its very clear language held, that when the limits of a State are reached, the official character of its officers drop from their shoulders like a cloak.

They're no longer officers.

In (Inaudible) another federal case which is cited in the brief, the Court held that when a sheriff in the State of Arizona passes beyond the boundaries of the State, his process turns to ashes in his hands unless --

Justice Charles E. Whittaker: Even including the ancillary of a reservation, or federal ancillary.

Mr. L. J. Cushman: That is correct, sir.

You've asked -- noted Your Honor's point on that a little earlier.

That is correct.

In other words, its power to act as an officer in validity of the process exaggerates a distinct line.

Now, there is the difference as I speak of it.

So that, in my opinion, is the answer to Your Honor's question.

Now, as I was about to say, all of these cases hold that the right, the authority, the power of the State to surrender one citizen to a sister State has got to be derived, and doesn't derive, solely to this constitutional provision.

In fact, the Supreme Court of Florida, in an opinion of which I have the honor of the Court, said that if it were not for Section 2 Article IV of the Constitution of the United States, there would be no such thing as the interstate rendition of fugitive from justice.

And I think we are right, the Court dispose that --

Justice Felix Frankfurter: What is the source of the power of the Federal Government without a treaty to see fit?

May it -- may it -- may the Federal Government surrender a fugitive from a foreign country?

Mr. L. J. Cushman: If Your Honor please, my reading of the authorities gives me this answer.

That this is a -- an attribute of sovereignty which the Government of the United States does posses, which it does exercise solely upon principles of political expediency I probably should say.

And in People against Hyatt in New York which was cited in my -- in my brief, the Court pointed out very clearly that no such power exists in the State of this figure --

Justice Felix Frankfurter: (Voice Overlap) because that involve a relation with foreign nation and that's outside of the scope of States.

Mr. L. J. Cushman: That's correct, sir.

Justice Felix Frankfurter: That relation of State to State is within the framework of the union and not outside and not an aptitude of power -- of sovereignty vis-à-vis the rest of the country.

Mr. L. J. Cushman: Well, that is correct.

Justice Felix Frankfurter: (Voice Overlap)

Mr. L. J. Cushman: I -- I agree with Your Honor.

It sounds plausible but I suggest to you that the authorities hold that the States themselves possess no power as between themselves to surrender a citizen who is in one state to another unless it is under -- and that's Section 2 of Article IV of the Constitution and the federal statutes, and that this is the only bridge between States on this subject of surrendering one -- a citizen by one State to another.

Justice Felix Frankfurter: I've put it to you but that question could not have been decided by this Court because there is a provision in the Federal Constitution so we don't know what the part of a statement of -- in vis-à-vis the other States if there had not been the federal -- of constitutional privileges.

Mr. L. J. Cushman: Well, I think that Your Honor may be correct in that respect and here's my only reply to you if I may give it to you, sir.

My only reply to you is this, that when the original Articles of Confederation were adopted, before the States became a State, before their fate became a federal union, this same provision in substance and almost word for word was in the Articles of Confederation.

And, according to the historic reasoning and the decisions that I've read it is indicated that the men who were in charge of the governmental affairs of the confederation realized that without a compact of that sort in the Articles of Confederation that there would be disposition on the part of some part that was not to surrender, disposition of another's to surrender and that this was necessary in order to make sure that these things were done and to promote the administration of justice and grant them in the courts between the several counties.

And this was carried forth into the Constitution of the United States in Section 2 of Article IV and hence, the authorities indicate to mean that this is the historical background for the proposition that the authority is derived from the Federal Constitution and the laws and acts to be implemented.

Justice Felix Frankfurter: May I say to (Inaudible) within --

Mr. L. J. Cushman: Yes.

Justice Felix Frankfurter: -- that prior to the Constitution the States really were self-contained separate properties?

Mr. L. J. Cushman: Yes, sir.

You are -- I certainly agree with you on that.

No question about it.

Justice Felix Frankfurter: The confederation is -- is a very different thing from the union of -- a more perfect union.

Mr. L. J. Cushman: That's correct.

Justice Felix Frankfurter: We can agree on that, can't we?

Mr. L. J. Cushman: Oh, most certainly, we agree wholeheartedly.

And may I suggest to Your Honor that one of the consequences of a more perfect union (Inaudible) by the Constitution of the United States, in my judgment was, to remove from the States any power to surrender citizens from one State to another, except in the instances provided in the Constitution of the United States.

Now then, I diverted there just a moment but the first point I want to make before I leave was this.

That this power to surrender fugitives from justice is a power which is, I believe, created and exists by virtue of Section 2 Article IV of the Constitution of the United States and without it, there'd be no such thing, any similar authority is necessary if citizens are not charged with any crime and that fugitives from justice are to be surrendered by one State to another.

Now, the next proposition I should like to discuss briefly is, that the Fourteenth Amendment for this, States to pass any law which abridges the rights of the citizens of the several States.

Now, all general statements are dangerous of course.

This is one of those statements which is likewise a dangerous statement, I realized.

However, one of the rights of national citizenship is the right to pass freely from State to State to pass to -- both are interstate, to stay there as long as you want to, go to another place in the same State, and to depart there from.

And I respectfully suggest that the discussion of this particular proposition by the Supreme Court of Florida is -- these very little to be desired.

Now, I think that Mr. Bowen perhaps has an idea a little different than I do.

As I understand that Section 1 of the Fourteenth Amendment, it isn't simply a matter of discrimination, although discrimination exists certainly, discrimination between citizens of different States is permitted.

But, I -- as I understand it and from my reading of this, it comes down to this, that the rights of citizens cannot be abridged by the law of any State.

Now, I started the proposition in my contentions that the States have no power to pass such a law.

I was interested in one of the questions that was asked by one of Your Honors, about what would happen if they're going through a State that didn't have this law?

Now, let me talk about that for just a minute because I think it illustrates the proposition.

Georgia doesn't have this law.

But let us suppose that Alabama did have the law.

I don't know, maybe it does.

I think it does.

And suppose we started back with the prisoner in a car going to New York and they had him in handcuffs because they knew very well that if they ever turn him loose he would be -- disappears in a hurry.

So they get on to Georgia and the man decide if he's going to walk away from them.

They let him -- they take off his handcuffs and maybe he says, "Goodbye, gentlemen, I'm going."

Now, they have no valid process with the State of Florida because that is halfway the state line.

There isn't any process.

They're not officers of the State of New York because under the rule in McLean against Mississippi, (Inaudible) and these other cases, as soon as they step out, have gone to the State of New York, they no longer are officers of the law.

They no longer have the authority of the State of New York.

That has evaporated when they left the State of New York.

So they are only private citizens.

So we have a situation in which private citizens are undertaking to restrain a person having liberty, having in their possession no valid process of any kind.

What does it come down to?

Justice William J. Brennan: But why do you it's no valid process assuming your other points have no merit?

The order under which he's committed to the New York officers by the State of Florida is a valid order of the courts of Florida?

Mr. L. J. Cushman: But I respectfully suggest, Your Honor that under the rule in Pennoyer against Neff and under the rule in every case of which I'm acquainted and -- and maybe to some that I'm not acquainted with, the power and the process of the State cannot run beyond its border.

And when the -- when the process reaches the borders of the State of Florida as processed, it has evaporated.

It ceases to exist that process, and it's no longer effective as a process.

That's exactly the point.

That's exactly the process.

Justice John M. Harlan: How does that -- how does that affect the validity of Florida's order in the first instance which is always up before us here?

Mr. L. J. Cushman: Because Florida couldn't enforce it -- couldn't enforce any action under it beyond the limits of the State of Florida.

Justice John M. Harlan: We haven't got that situation.

Mr. L. J. Cushman: Well, perhaps I misunderstand what Your Honor was talking about.

Here is my understanding.

The Supreme Court of Florida said this.

“Is it when this -- this process can't run beyond the boundaries of the State of Florida so that if the officers of the State of New York were in Florida, they're not officers of New York in Florida at all.”

They have no statuses also in Florida at all.

They're merely private citizens acting under an order of the State of Florida which isn't -- at least be effective after the state line is passed.

So that is the -- I submit to you they have no authority whatsoever.

Justice William J. Brennan: And what would be the case of -- for an extradited prisoner?

Mr. L. J. Cushman: There (Voice Overlap) -- now that point was made abundantly clear in McLean against Mississippi.

And the Court said this, in -- in renditions under the -- in renditions under the Constitution of the United States and the federal statute, if a sheriff is sent to get a prisoner, he goes to that foreign State not as a sheriff but as an officer designated to receive custody of a prisoner who is held under the process which obtained his validity from the Constitution of the United States and the federal laws so that by virtue of that, it does have force, it does have effect but his authority is not as a sheriff but as an officer under that process.

Here's what they said.

They said that extradition statute 18 U.S.C. Section 662 and 663 gives state sheriffs no duty or function.

The Governor of the two -- Governors of the two States handle the matter and the prisoners to be delivered to and returned by a specially appointed agent and not by the state sheriff or a United States Marshal.

Even though one who is a sheriff should be appointed such as he acts not as sheriff under his bounds, but as special agent to extradite at least until he has the prisoner in his custody in his own county.

When in this case McLean, extradition hasn't been waived went to Louisiana and took charge of Roy, he did it not because -- he did not because he could not exert the office sheriff in Bolivar County Mississippi, in Louisiana, and again in Tennessee he did not because he could not at either (Inaudible).

He has neither office nor color of office as a Mississippi sheriff while in another State where Mississippi laws were not enforced.

In such other States, he is only a private citizen.

Now, that's what I meant when I said the official character of a sheriff or a police officer, whatever you call it, evaporates at the state line.

But he is no longer --

Justice William J. Brennan: (Voice Overlap) that, can I ask extradition case.

There happened was -- you suggested what might happen in Georgia in case something (Inaudible)

Mr. L. J. Cushman: Yes, sir.

Justice William J. Brennan: What would be -- what relief in Georgia could the private citizen custodian obtain?

Mr. L. J. Cushman: Under the -- if he were acting under process in connection with --

Justice William J. Brennan: Well, in that -- and that case was -- involve a waiver?

Mr. L. J. Cushman: In this case there was a waiver of extradition.

Justice William J. Brennan: Well, then what process would we have?

Mr. L. J. Cushman: No process.

No process.

Justice William J. Brennan: And yet, would he have relief in Georgia?

Mr. L. J. Cushman: No, not if he were -- not if he were acting without process.

Under this decision, he would not.

Justice William J. Brennan: Do you mean that the prisoner then escapes and the custodian gets no relief from the Georgia?

Mr. L. J. Cushman: As I read this decision where the prisoner waives extradition, then the officer is not acting under the extradition laws of the United States and under the Constitution provision, and he doesn't enjoy any status as an officer in the State in which he has gone.

Now that, I submit --

Justice William J. Brennan: Well, whatever his status.

My question was, did he have any relief from the Georgia authority in that situation?

Mr. L. J. Cushman: Unless the Georgia statutes provided for the arrest of one who's charged and suspected with a crime in another State and authorized he will be held until an officer-in-duty at present did arise, I would say no, no.

Justice William J. Brennan: McLean hold that?

Mr. L. J. Cushman: Sir?

Justice William J. Brennan: McLean hold that?

Mr. L. J. Cushman: Well, I wouldn't say that it did for this reason.

This was a suit by McLean upon the sheriff's bound on the ground that he had been beaten up while he was in custody and he waived extradition.

And the question was whether the sheriff was acting under the color of his office, acting under his bonds, so that his bonds (Inaudible).

And the court said, "No, he wasn't acting as a sheriff.

He couldn't be acting as a sheriff."

He has no authority to act as the sheriff.

Now --

Justice Hugo L. Black: Suppose this man ensue -- got a writ of habeas corpus in Georgia, this particular man, when he got up there they had a law which prevent him from bringing the man through the State to serve as a witness sometime, then you'd have your question raised for the accuser, wouldn't you?

Mr. L. J. Cushman: Yes, sir and I expect he'd had to be discharged.

Justice William J. Brennan: Well, now why?

Doesn't (Inaudible) has been a clause in terms embraced judicial proceedings of another State?

Unless it --

Mr. L. J. Cushman: Yes.

Yes.

Justice William J. Brennan: -- and in this instance -- in this instance, the -- the custody is under a Florida court order, is it not?

Mr. L. J. Cushman: Yes, sir.

Justice William J. Brennan: Which would stand on appeal, there were so many statutes --

Mr. L. J. Cushman: Sir.

Justice William J. Brennan: -- put.

Mr. L. J. Cushman: Yes, sir.

Justice William J. Brennan: Why would they then be part of judicial proceedings for which the courts of Georgia would be required by the full faith (Inaudible)

Mr. L. J. Cushman: Mr. Justice Brennan, if orders, judgments and decrees in the State of Florida had any force and validity in effect as processed in the State of Georgia, then you would be absolutely correct.

But the answer is that they do not have --

Justice William J. Brennan: It's not quite whether I'm correct or not.

I'm looking for (Voice Overlap) --

Mr. L. J. Cushman: Well, if the -- my answer to Your Honor is that if the -- the prejudgment or order gave a state court in -- in Florida, had any validity whatsoever as processed, as an order, as a judgment effective in Georgia, then I say there might be -- I respect to suggest to you, there might be merits with the idea.

But why would it be entitled full pays in credits in Florida.

That means it would be entitled to the same credit, it would be entitled as you see it in Florida.

Justice William J. Brennan: I thought we were discussing this on premise if you had a valid order of the Court of Florida.

In other words, you passed the other question.

Mr. L. J. Cushman: It's valid.

Justice William J. Brennan: That this is a valid order in judicial proceedings in the State of Florida.

Mr. L. J. Cushman: As far as --

Justice William J. Brennan: Now on that premise, why would they not be binding upon the courts of Georgia in the situation that Justice Black put to you?

Mr. L. J. Cushman: For the same reason, I submit to you, that process issued by a court in Florida would be invalid and ineffectual to require a person to appear in another State -- in the court of another State for exactly the same reason.

Justice Hugo L. Black: What you say -- what you're saying is I presume that the full paid --

Mr. L. J. Cushman: Sir?

Justice Hugo L. Black: What you're saying is that you get back to your original question, full pays and credits, though it only requires obedience by one State for another's valid order.

Mr. L. J. Cushman: That's correct, sir.

Justice Hugo L. Black: And that this is not valid insofar that directs the man be taken beyond the State of Florida.

Mr. L. J. Cushman: Correct, sir.

Justice Hugo L. Black: And that Georgia cannot be bound by it for that reason.

You're arguing it's just the same I suppose as though the man at Florida had ordered him sent to China.

Mr. L. J. Cushman: That's right.

Justice Hugo L. Black: And they started to -- unite to Georgia.

That's -- might send him to Georgia and --

Mr. L. J. Cushman: [Laughs]

Justice Hugo L. Black: -- through the writ of habeas corpus and you'd say that that was not a valid order.

Mr. L. J. Cushman: That's correct and --

Justice Hugo L. Black: Does that -- does that not indicate that we may have before us, the question Mr. Justice Harlan questioned you about -- the problem which he questioned you about --

Mr. L. J. Cushman: What was asked --

Justice Hugo L. Black: -- determine now whether this is a valid order all the way?

Mr. L. J. Cushman: Well, I don't know what you mean.

Justice Hugo L. Black: If not, how could a man ever raise it?

Mr. L. J. Cushman: Well, I'll tell you why.

I don't think that that question is necessarily involved.

Let me give an illustration.

If an order of the court or process of the court in Dade County which is down in Miami, ordered the witness to appear in Jacksonville which is almost at the other end of the State, I can see clearly that that would be valid enforceable process.

Justice William J. Brennan: Although, there's certainly an invasion of personal interest, personal right.

Mr. L. J. Cushman: Yes, because it's within the --

Justice William J. Brennan: Yes.

Mr. L. J. Cushman: -- boundaries of the State.

Yes, sir.

But I say that if that same process instead of being returnable would let us say, to the Circuit Court of -- to the Circuit Court in Duval County which is Jacksonville that said, that it's returnable if you plead at Highpoint, North Carolina.

I say that the invalidity of the process isn't a question of whether it's valid as far as the state line is concerned.

I say it isn't valid at all because the courts of the State of Florida as I understand have no power to issue process running extraterritorial -- extraterritorially beyond the limits of the State of Florida and no one is bound to obey.

Now, that is my contention on that proposition.

Justice Hugo L. Black: You're – you're invoking the doctrine of Pennoyer and Neff or the cases that say that the State has no jurisdiction to do something beyond its boundaries.

Mr. L. J. Cushman: Yes, sir.

Justice John M. Harlan: Well, then from here, Florida would have the right to consent a -- a prisoner to a demanding State through one of its own officers and then if he let the man go, escape in an intervening State, Florida could certainly punish that prisoner when the sheriff will get hold of him, couldn't he?

Mr. L. J. Cushman: Punish who get?

Justice John M. Harlan: Their own sheriffs.

If they will only return him over.

Mr. L. J. Cushman: If one sheriff, you say?

Justice John M. Harlan: Certainly.

Mr. L. J. Cushman: Well, I doubt it.

Justice John M. Harlan: You have a doubt (Voice Overlap) about that?

Mr. L. J. Cushman: I doubt it for this reason.

Unless the officer for the State of Florida was acting under process with extradition authorized by the Constitution and the statutes of the United States, the officer of the State of Florida would have no more authority as an officer in the State of Georgia, North Carolina or Tennessee than any other person from any other State would have.

As a matter of fact, as he might be from Florida would not give the courts of Florida any authority to say to him, "You were because of our judicial or other by it require to act as an officer in the other States because the law of this country as I understand it says that the State of Florida cannot pass an act which has extraterritorial effect."

And so whether the officials of the State of Florida, whoever they might be, whether they might like it or not, they would be helpless in face of the proposition announcement, Pennoyer against Neff that the laws and judicial process in the State of Florida does run beyond the limits of the State of Florida.

It turns into ashes at the state line.

Justice John M. Harlan: And --

Justice Charles E. Whittaker: This is not but one thing to recognize the principles of Pennoyer versus Neff.

And frankly, nothing to recognize that an order in proceedings in personam may be entered by a court requiring action beyond its borders by (Inaudible)

Mr. L. J. Cushman: Well, I think if I may make a suggestion to Your Honor the -- the principle that you're alluding to, in my judgement, is quite different.

Let me illustrate it.

Suppose a court sitting in Florida had a case before it in which the disposition of property in California is involved.

The court in Florida may say to the defendant, “We enjoin and restrain you for making any conveyances of properties in California.”

And the defendant may say, “If Your Honor please, I deny your jurisdiction to make such an order.

I shall convey it, nevertheless.”

And therefore, and if he does so, and the court says, “My friends, we had you before the Court.

You are in the jurisdiction.

You are subject to our orders and you will be found in contempt."

Now, this very subject that Your Honor has alluded to, I suggest to you, is not entirely free from difficulties.

I don't believe that the courts are unanimous in expressing the view that I have just expressed to you.

I'm merely expressing to you what I think is perhaps the proper view.

But it's based on the fact that the respondent, the defendant is present in the Court which proposes to impose the sanction and it has the authority then to require your views of things and he is there to enforce it.

The same thing comes up frequently in Florida when the courts down there say to a man, “We enjoin you from prosecuting your suit for divorce against your wife any further up in New York, for example or in some other States.”

But this proposition that I suggest to Your Honors were not free from a difference of opinion.

I think the court in Florida has the authority as long as a defendant is there to make an order in personam, but if that defendant was not in Florida, if he were going to defend this --

Justice Charles E. Whittaker: You, I don't --

Mr. L. J. Cushman: -- as well, the respond to anyone who would --

Justice Charles E. Whittaker: And -- and could be a witness.

Mr. L. J. Cushman: Sir?

Justice Charles E. Whittaker: He could be a witness as in this case.

Mr. L. J. Cushman: Yes, sir.

But now, I don't think that the court in Florida has any authority to order a witness in -- to go to some other States.

I think that this took first -- what I'm talking about is the exercise of the court's power to enforce by enforcing its power of a judgment in rem or a proceeding in rem like an injunction, the performance of an act in another State because they've got jurisdiction and possession of the respondent.

And to make him do it, we'll put him in jail if he doesn't do it.

Now, that's the only -- and I think that's vast, the difference from ordering him to go to another State.

Justice Charles E. Whittaker: He is not with the custody of such a witness when by order of the court, it is placed in the hands of an agent, sheriff or whatnot.

Is not that custody from beginning to the end term court custody?

Mr. L. J. Cushman: If the witness is in the custody of an officer?

Justice Charles E. Whittaker: Of the -- of the Miami Court.

This is what -- this is turned over to this custodian who is directed by the court's order to take him to New York.

Is not the custody throughout the District Court's custody?

Mr. L. J. Cushman: In my -- in -- in one of the decisions, not after borders of the State of Florida had tackled.

No, sir.

And I rely upon the decisions that I have referred to and on other decisions which were cited in the brief, one of which is (Inaudible).

May I tell you about that case?

In that case a man by the name of (Inaudible) was charged with an offense which has been committed in the District of Columbia, right here in Washington.

The Marshal, or whoever he is, in the District of Columbia sent the sheriff by the name of Chase (ph) down in Dade County a warrant and said pick up so and so, pick up (Inaudible).

We got a warrant for him.

And so they picked up (Inaudible) down in Florida and passed it and filed a habeas corpus and contended that they had no authority to seize him whatsoever.

The Supreme Court of Florida in discharging a writ of habeas corpus says that is correct.

If the warrant from the District of Columbia had been there, it wouldn't have been effective in Florida because it has no extraterritorial effect.

And unless it is under the extradition statutes, it would have no legal validity and no legal standing.

Now, I suggest to Your Honors that in view of the case dealing with this subject, will reveal that that is the situation so far as the cases are concerned throughout this country.

Now, it may be that there -- it maybe that it's necessary to make a change on that.

I don't know.

I'm almost persuaded from my learned friend on the other side that it is.

But I suggest to you that it can't be made within the framework of the Constitution by such a law as we have here, which is under consideration here.

Now --

Justice William J. Brennan: But it could be accomplished?

Mr. L. J. Cushman: Sir?

Justice William J. Brennan: Do you think it could be accomplished?

Mr. L. J. Cushman: Well, there is a statute, a federal statute, right now that aims in that same direction.

That's Section 1073, Title 18 of the U.S. Code which makes it a penal offense to depart from the jurisdiction to avoid testifying as a witness.

Justice William J. Brennan: But that -- what is that statute?

Mr. L. J. Cushman: Section 1073, Title 18 of the U.S. Code.

Justice William J. Brennan: Well, I know but that -- that only means the witness arrived at in New York where --

Mr. L. J. Cushman: That's true.

Justice William J. Brennan: -- he was dragged from that apartment.

Mr. L. J. Cushman: That's true but it has, of course, its effect but certainly that is nothing.

Justice William J. Brennan: Well, it wouldn't -- wouldn't work here though --

Mr. L. J. Cushman: Oh, it wouldn't work here.

Justice William J. Brennan: (Voice Overlap) decided that in New York.

Mr. L. J. Cushman: No, it wouldn't work here.

No.

That's correct.

Justice Hugo L. Black: I suppose what you're suggesting is that if -- I -- I don't mean you're right but if there's any law at all passed that it have to by the Federal Government.

Mr. L. J. Cushman: Yes, and in my judgment, it would have to be -- it would have to be pursuant to some constitutional authority.

Justice William J. Brennan: But what's the constitutional authority that would support a federal statute at the time they were dealing with it here in Florida?

Mr. L. J. Cushman: Well, unless Article -- unless Section 2 Article IV of the Constitution would authorize it, then that there is none.

Now, let me explain.

Justice William J. Brennan: Well, that one deals only with fugitives, doesn't it?

Mr. L. J. Cushman: Sir?

Justice William J. Brennan: That deals only with --

Mr. L. J. Cushman: Only with fugitives.

Justice William J. Brennan: Well, then that -- that is what the situation.

Justice William O. Douglas: About the Commerce Clause?

Mr. L. J. Cushman: When you run to town under the Commerce Clause?

Justice William O. Douglas: What's that?

How about the Commerce Clause?

Mr. L. J. Cushman: As it's bearing on the subject that runs with it.

Justice William O. Douglas: You say there's no power of the Congress to act --

Mr. L. J. Cushman: Oh, I see what you mean.

Justice William O. Douglas: Why couldn't -- how could they -- could they act under the Commerce Clause?

Mr. L. J. Cushman: Well, I frankly confess that I am not enough of a constitutional lawyer to answer that question.

I wish I could.

I just don't know it.

But I would say this, taking Innes against Tobin, which is one of the favorite cases of my esteemed contemporary, all of these cases that he has cited and all of these laws that he has referred to have one thing in common.

All of them are in aid of interstate rendition of fugitives from justice, all of them.

Even the Uniform Act dealing with deserters who desert their families because in Florida and many States, it is a felony to desert a person, wife or children, and so even that is in aid of the federal power.

It may be that a statute which would authorize the interstate institution of witnesses, passed by Congress, would be likewise held to be in aid of the power to extradite fugitives from justice.

Justice William J. Brennan: Well, I have trouble with that, frankly.

Mr. L. J. Cushman: Frankly, I do too, Mr. Justice Brennan.

And if it doesn't -- if that isn't the solution, then I don't think there is any constitutional solution short of the amendment to the Section 2 of Article IV to provide for the interstate extradition witness.

I'm frank to say I agree with you on that.

Justice Felix Frankfurter: Mr. Cushman --

Mr. L. J. Cushman: I have trouble with it too.

Justice Felix Frankfurter: -- are you familiar with the case of Blackmer against the United States?

Mr. L. J. Cushman: Yes, sir.

Isn't that the one where he was brought from another country?

Justice Felix Frankfurter: That's where an American citizen living in Paris --

Mr. L. J. Cushman: Yes, sir.

Justice Felix Frankfurter: -- refused to heed a subpoena to appear as a witness in one of the courts to the district or in New York.

Now, what bearing do you think if any, does in that case has upon this situation, except that there we were dealing with the -- there, the legislation, we're dealing with an American citizen.

But there was a person who was living in Paris insofar as a mean -- physical means of hauling him out of Paris, they were beyond the power of this country, of this Government to recall just as a sheriff you say, his power will evaporate as soon he reaches the border of Florida, so the power of any American official evaporates except by -- by leave of the foreign country.

It has no power that this country can give him and yet this Court sustained a statute which said, "If he doesn't turn up, he shall be found in absentia, guilty of contempt subject to a fine of $100,000 and the forfeiture and the seizure of his property to -- to pay, to liquidate that $100,000.

Now, I've -- I've indicated that's with a citizen.

And therefore, if we have the case of a Floridian citizen or if this man that Illinois had this statute and you haven't -- not heeding New York request, default and with relation to Illinois who gives that this is lack of motive to the United States.

What do you say to that case?

Has that any bearing at all on you?

Mr. L. J. Cushman: I do not consider it has any bearing on the case that we have before the Court today.

Well --

Justice Felix Frankfurter: Because as far as due process is concerned, what kind of safeguard were protected there, that are not protected here?

Because I think privileges, immunity or unequal protection is not for privileges, immunities and for myself I don't mind saying I think there's nothing in it because there is no discrimination.

Everybody gets the same deal, a Floridian citizen has indeed seen the difference with the others but I mean to see the difference in many other citizens.

Do you think the Blackmer case has no bearing after the egression of power over just the human beings who are freed from the possible physical control which is the ultimate power of sovereignty and yet he was subjected to a condemnation of contempt and the seizure of property worth $100,000 and all the stigmas as mentioned.

Mr. L. J. Cushman: Well, I don't think it does because that I think that the power of the States is quite different than the power of the Federal Government.

Justice Felix Frankfurter: Certainly it is but as to the people that are within it, and -- and constitutionally speaking, if a fellow wants to take advantage of sunshine and all the other favoring circumstances of life in Florida, then to that extent, Florida has some control over him.

And it -- it could be a response to the kind of things that is not without justification and -- and I have to press you insofar as due process is concerned by seizing somebody whom you had no control except within your limits of what greater -- what greater protection was there in Blackmer than there is here in saying, “You're within our State, you enjoy the benefits of it.

We have an agreement with the State of New York to our advantage in a cause that is morally a right and indeed had to be essential to the safety of a society in which you respond to the subpoena in court.”

Mr. L. J. Cushman: Well, Your Honor certainly makes a convincing presentation of the subject.

I could not deny that.

I merely suggest to Your Honor that the States of the Union don't possess that power, and while Your Honor's argument -- I don't feel that I should surrender the point, if I may.

Justice Felix Frankfurter: I --

Justice Hugo L. Black: Does the record show where this man lived?

Mr. L. J. Cushman: Yes, sir.

The record shows that Mr. O'Neill was a resident and citizen of the State of Illinois.

Yes, sir.

Justice Hugo L. Black: Does the record show anything about his being in New York?

Mr. L. J. Cushman: No, sir.

It does not.

And I'm glad you mentioned that because I'd like to say a word about it.

Justice Hugo L. Black: What -- what does the record show about that?

Mr. L. J. Cushman: The record doesn't show --

Justice Hugo L. Black: That would be -- that would be material if you were a fugitive from justice.

Mr. L. J. Cushman: Well --

Justice Hugo L. Black: What does the record show about that here?

Mr. L. J. Cushman: The record doesn't show whether he was ever in New York or whether he was in New York a week before the District Attorney started the proceedings in New York.

It merely says that they had tried without success to get him to appear as a witness.

Now, it isn't stated that they ever had a witness subpoena issued for him in New York and tried to serve him but couldn't serve him.

We never -- it isn't stated that they had a witness subpoena served.

If they did issued and if it did serve it and he refused to respond to it or anything of the sort.

It doesn't even say that they ever personally asked him to come and that he directly refused.

They simply say they haven't been able to get him there.

Now, that's all there is in the record on the subject.

Does that answer Your Honor's question?

Justice Hugo L. Black: That -- it's probably not material to the narrow contrast of the points you are raising.

Mr. L. J. Cushman: Well, I think it's -- I think it's material in this respect if I may.

I think it's material because this application that the people of the State of New York from this proceeding was originally begun, didn't contain any kind of facts which would support any sort of a seizure of a person.

Now, I contend -- it is my contention that in order to sustain the issuance of process of a drastic nature such as the seizure of a person, that there should be facts stated to support the application.

Just like if you go to apply for an injunction, you've got to state the facts upon which to show the necessity for the issuance of the injunction.

And if it's necessary to state facts in order to support an application for an injunction, certainly, it ought to be necessary to state facts to authorize an application for the seizure of a person in a distant State and transportation back, if you please, as a prisoner.

Justice Hugo L. Black: Well I suppose, I -- I'm just asking, because I don't know.

Suppose you lose this case here on the judgment as it is, do you mean that he would be cut-off from going into the courts of Florida to show, for instance, if he could, that he has never been in New York?

Mr. L. J. Cushman: Well --

Justice Hugo L. Black: Could -- would there be anything left to try or would -- is it -- would it -- on -- on your viewpoint, would it mean that all you have to do is to give notice from one State once a man is a witness and he has to go, just on then?

Mr. L. J. Cushman: Well, rightly or wrongly, the learned circuit judge said that he did not consider that any testimony was -- could be offered on the subject.

Justice Hugo L. Black: Was there an offer --

Mr. L. J. Cushman: And it had to be decided on the face of the application.

Justice Hugo L. Black: Was there an offer made to present a testimony?

Mr. L. J. Cushman: Well, I want to present some testimony but he wouldn't hear anything, and the District Attorney from New York wanted to make some statements about what was said to the judge at the time the application was made in New York State and the circuit judge in Florida refused likewise to hear that.

Justice Hugo L. Black: Well, do you consider this -- that would be foreclosed if the -- if the Court should decide against you and hold that the law is balanced?

Mr. L. J. Cushman: Under the decision as it now stands, it seems to me that the only thing that the Court would be willing to hear me on would be on the question of whether there is some peculiar reason which would make any hardship on O'Neill to go to New York State.

That's, as a witness, and that's about the only thing I believe the Court would entertain any kind of a hearing on.

Justice Potter Stewart: Well now, the statute as reproduced in the appendix to your brief on Page 30, 942.02 Section 2 provides that -- provides for a hearing in Florida, doesn't it?

Mr. L. J. Cushman: That's right, sir.

Justice Potter Stewart: And for a determination after a hearing that the witness is material and necessary that it will not cause undue hardship to the witness to be compelled to attend and testify and also that he will be immune from service while he's there.

Is that the price?

Mr. L. J. Cushman: Well, that's correct.

That's exactly what it provides.

Justice Potter Stewart: And you -- you of course never had a hearing in this case because the circuit judge decided you will ride on your constitutional claim and that was affirmed by the Supreme Court of Florida.

If -- if perchance this Court should disagree with that, then you go back and have the right to this kind of a hearing, wouldn't you?

Mr. L. J. Cushman: Yes, but to be frank with, Your Honor, I don't know what we would contend, for example, whether he would served his due process in New York or in any State to which he might go, does appear to me that he -- largely a question of law than it is a question of facts.

And the only other question that it would appear to me, it would be open for a consideration and discussion could be where it would constitute a hardship for him to go to New York.

And I suggest that to go to New York as a prisoner in custody of an officer and my examinations in New York decisions indicate that in this lack of investigation, the practice has been almost uniform for a bond around $200,000 or the -- the witness be in jail.

Now, in my brief filed with the Supreme of Court of Florida, I had adverted to that subject.

And of course I can very well see how he might get to New York when we say, "Well, Mr. O'Neill, we'll be glad to issue a bond higher while you're here, if you want to post a bond, say $200,000 that Mr. O'Neill couldn't post a bond of $200,000, they'd say well to the two with it, and when we get ready for him as a witness, we'll call him as a witness if you know right where he is.

That's the situation (Inaudible).

Justice Charles E. Whittaker: May I ask you, sir.

Mr. L. J. Cushman: Yes, sir.

Justice Charles E. Whittaker: Is Mr. O'Neill still under bond to the Dade County Court or not?

Mr. L. J. Cushman: To be frank about it, I can only say this.

The order of the circuit judge which was to discharge him, discharge him and ensure he's on a bond.

Now, it may well be, it may well be that if this Court should reverse its decision with the Supreme Court of Florida and so by operation of law reverse the decision of the circuit judges that he would be held, in all likelihood, that the discharge of the bonds would be in effect with and the bonds wouldn't be required to produce, Mr. O'Neill before the judge --

Justice Charles E. Whittaker: Well, wouldn't -- wouldn't reversal of the judgment of the Supreme Court of Florida have the effect of vacating the order of the circuit judge dismissing the bond?

Mr. L. J. Cushman: I don't think there's any question about it.

I'm in agreement with you, yes, sir.

Justice Charles E. Whittaker: Well, I didn't intend to indicate.

I'm just asking.

Mr. L. J. Cushman: That's correct.

Justice Charles E. Whittaker: All right.

Mr. L. J. Cushman: I think you're right.

Justice Charles E. Whittaker: Now, if that's true, do we have -- if the bond has been discharged, do we have only a moot case here now?

Mr. L. J. Cushman: Well, that's something --

Justice Charles E. Whittaker: (Inaudible)

Mr. L. J. Cushman: Mr. Justice Whittaker, you have touched the point which I considered and the reason I did not argue that point in the Supreme Court of Florida.

Justice Charles E. Whittaker: (Inaudible)

Mr. L. J. Cushman: Well, I might have argued.

I thought, at least I considered arguing whether -- since O'Neill is back in Illinois and the bond has been discharged whether it would be a moot question or not.

But I didn't argue it because I didn't think that it was an argument that I should make.

And it's not too much of an argument to the effect that O'Neill would defy the law or the lies his attorney would advise him to and I didn't make the argument.

And I can only give you the same answer here.

Justice Hugo L. Black: The only way they can get it back from New York (Inaudible)

Mr. L. J. Cushman: I think you're correct, Mr. Justice Black.

Justice Charles E. Whittaker: (Inaudible)

Mr. L. J. Cushman: Frankly, I know of none.

Justice Charles E. Whittaker: (Inaudible)

Mr. L. J. Cushman: Well, if the bond is not gone.

As far as that's concerned, the bonds would simply lose the forfeiture and that's that.

He still wouldn't be able to get it because there would still be no basis for forcing him to return.

Justice Hugo L. Black: (Inaudible)

Mr. L. J. Cushman: That's correct.

And of course if the bond --

Justice Hugo L. Black: It still remains that he's not in Florida.

Mr. L. J. Cushman: Sir?

Justice Hugo L. Black: It still remains that he's not in Florida.

Mr. L. J. Cushman: That is correct.

Justice Hugo L. Black: (Inaudible)

Mr. L. J. Cushman: Well, that is correct.

That's right.

And so if the bonds couldn't induce him to return to Florida, it might be that the bond -- this feature of the bond would be the only remedy left.

Now, there's no use to dissemble on that point.

Justice Hugo L. Black: (Inaudible)

Mr. L. J. Cushman: Well, frankly, I doubt it, Mr. Justice Black.

But I --

Justice William J. Brennan: But he still (Inaudible) of any crime.

Mr. L. J. Cushman: No, sir.

He's not.

Justice William J. Brennan: There's no way to extradite him for a crime.

Mr. L. J. Cushman: He could not --

Justice William J. Brennan: He couldn't be indicted (Inaudible)

Mr. L. J. Cushman: No, you couldn't have indicted him.

No, sir.

No way to indict.

If Your Honors please, I thank you for your --

Justice Hugo L. Black: What about -- what about the grand jury, the New York grand jury?

Do you know whether it's still in session?

Mr. L. J. Cushman: My understanding is that it is not in session.

Now, whether the State of New York really wants O'Neill at this time, I cannot tell you.

I did write to the District Attorney of New York County and asked him if he was any longer interested in Mr. O'Neill.

He wrote me back and said in substance or effect that they are always interested in Mr. O'Neill.

Justice Hugo L. Black: And you say about the grand jury was given session that there's something that (Inaudible)

Mr. L. J. Cushman: He did not but I knew that it had been discharged because it was in November grand jury and it had continued over until spring of the following year, and I knew that it was discharged.

But of course I suppose that he intended to inform me that --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. L. J. Cushman: -- another grand jury might like to see him anyway.

So that is that.

Justice Felix Frankfurter: Is this the only inference that has arisen in Florida, so far as -- so far as know under the Uniform Act?

Mr. L. J. Cushman: As far as I know, this is the only decision that has ever reached the courts and certainly this is the only decision on this subject which has ever reached the court of last resort of any State.

Yes, sir.

Justice William J. Brennan: But the -- the statute itself has been used in other cases at that time.

Mr. L. J. Cushman: Yes, sir.

And in the record, you will find as an appendix to the opinion of the nisi prius judge and listed the 13 or 14 cases in which this Act has been construed in one way or another.

Justice Felix Frankfurter: No, I didn't mean that.

I mean, Florida they have another application than this one, have they not?

Has it -- for -- to take witnesses of the State?

Mr. L. J. Cushman: I am sure there have been but I don't know about it.

Justice Felix Frankfurter: This is an active statute, isn't it?

Mr. L. J. Cushman: I expect that it is.

Yes, sir.

I don't doubt it.

Justice Hugo L. Black: You say as a former state trial judge is in my State if there's some jury.

Mr. L. J. Cushman: (Inaudible).

Justice Hugo L. Black: (Inaudible) many orders under this -- this kind of statute.

It was very wrong without ever having anyone suggest that you successfully (Inaudible)

Mr. L. J. Cushman: Well, In re Stamer, I believe, was one of those cases.

Justice Hugo L. Black: That came after I think.

Mr. L. J. Cushman: At any rate, if Your Honors please, I have no doubt that it is a statute which has had considerable use and perhaps it has some value.

But I say, nevertheless, that there are not many who might be called as witnesses, who would have the means to make the defense which Mr. O'Neill has made in this case.

And I respectfully suggest that there may be many who have suffered the rigors of this statute without being able to complain effectively about it.

If --

Justice Charles E. Whittaker: I assure you, this is my last question.

Mr. L. J. Cushman: That's all right, as --

Justice Charles E. Whittaker: But --

Mr. L. J. Cushman: -- many as you like.

Justice Charles E. Whittaker: -- but there is, maybe, some misunderstanding as to your answer to my question that followed.

The bond, under which Mr. O'Neill was released by the Circuit Court of Dade County, is or is not yet effective?

Mr. L. J. Cushman: Well --

Justice Charles E. Whittaker: Can you give us the facts and your conclusion briefly?

Mr. L. J. Cushman: I can indeed.

When Mr. O'Neill came to Florida to preside at a meeting of the International Union, he was seized on an attachment, a body attachment.

He was taken immediately before the circuit judge.

The circuit judge ordered him released upon giving a bond, condition that he would appear at any subsequent hearing in the proceedings and stand to and abide by any order that the court made in the premise.

When the time came, he being at liberty on the bond, I filed a response and motion, to quash the attachment and the rule to show cause.

And the Court, in an opinion and ordered, granted my motion and discharged the rule to show cause and the attachment and discharged the bond and discharged O'Neill and his sureties on that bond.

Now, then, I suspect, and I will state that it is my opinion, based on those facts, that if the judgment of the Circuit Court is reversed, it would necessarily reverse also the order discharging the bond so that the bond would still be in effect.

Yes, sir?

Justice John M. Harlan: And you don't consider this case moot?

Mr. L. J. Cushman: To the extent that the bond is involved?

No, sir.

As far as actually getting O'Neill back to Florida, it might well be considered moot.

Justice Hugo L. Black: (Inaudible)

Mr. L. J. Cushman: The bond is made payable to -- as I can recall it to the Governor of the State of Florida and his successors in office.

It's an ordinary bail bond.

And a suit would have to be maintained by the State for the benefit of the fine and forfeiture fund is my opinion.

It isn't anything that would operate to the financial benefit of the people in the State of New York, however much that might be desired.

Thank you, gentlemen.

Chief Justice Earl Warren: Mr. Bowen.

Rebuttal of Reeves Bowen

Mr. Reeves Bowen: Yes, sir.

May it please the Court.

I don't think the case is moot.

Chief Justice Earl Warren: I beg your pardon?

Mr. Reeves Bowen: I said I don't think this case is moot because if this Court -- Court of the State of Florida has swung in the balance the question of whether it can collect that bond or not.

If the decision is reversed, then -- and Mr. O'Neill doesn't show up whenever -- when he's demanded, then the bond will be mistreated and if he doesn't show up, it can be collected.

But if the Court should dismiss the case as being moot, then Florida is automatically cutoff from collecting that bond because it would leave in effect the order of the Circuit Court and affirmed by the Supreme Court saying they have no right to -- to do anything to him at all.

We'd -- we'd lose the right to collect the bond we are entitled have.

If this thing is reversed, we're entitled to have him or the bond money.

And -- and a dismissal would cut us off from the possibility of getting either one.

It's always possible that a man will get to feel like he -- he's small enough to slip in and out of state and try -- and -- and have another dash down, then they'd catch him again.

Justice John M. Harlan: What was the amount of the bond?

Mr. Reeves Bowen: I don't remember, sir.

Unknown Speaker: $2500.

Justice John M. Harlan: $2500.

Mr. Reeves Bowen: $2500.

Now, let me say this.

Some question was raised about what could be heard if this thing is reversed.

The question can be heard under the law as to whether Mr. O'Neill is a material and necessary witness because our statute requires the judge to determine that fact.

And if Mr. O'Neill is able to show our judge down there that he is not a material witness in spite all these positions that he holds in the union, the head of all or most everything in it, and in spite of that, he knows nothing about the -- the facts that the grand jury is trying to investigate up there.

Then if the judge finds that to be true, he will necessarily find that he's not a necessary witness and he won't -- he -- he can't under the law, hold him to set up.

I think that question is certainly open for consideration if this case should be reversed.

Now, Mr. Cushman still contends --

Justice Hugo L. Black: (Inaudible)

Mr. Reeves Bowen: I do not, I'm sorry.

I have him --

Justice Hugo L. Black: (Inaudible)

Mr. Reeves Bowen: It was, sir.

It was.

Justice Hugo L. Black: But suppose the grand jury (Inaudible) what would you say?

Mr. Reeves Bowen: Well, they -- they have -- if they don't have that, well, I'm sure they've got a successor grand jury.

Justice Hugo L. Black: Well, I understand that but (Inaudible)

Mr. Reeves Bowen: He hasn't been summoned to appear before any grand jury so far.

In other words, no action has been taken to require him to go before any grand jury.

Justice Hugo L. Black: We originally have a case, isn't it?

That question came up (Inaudible)

Mr. Reeves Bowen: Yes, sir, but -- now, if a subpoena --

Justice Hugo L. Black: It means whether or not the grand jury (Inaudible)

Mr. Reeves Bowen: If a subpoena has been issued to him back then in 1956 when this case was decided in the Circuit Court, and if -- while the case was on appeal to the Supreme Court of Florida, it had made -- made to appear that the body before whom the subpoena was returnable, that is the grand jury, had ceased to exist.

Then, the hauling would have to have been in his favor as to that particular subpoena, but here we've had no subpoena at all.

And I don't know actually whether the same grand jury has been in session or not.

I -- some of these grand juries last a long time but I don't know about that one.

But even so, it says no subpoena has been issued which could have been vitiated by the -- by the expiration of that grand jury term and says New York still wants him before a grand jury and a subpoena could be issued to put him before a current grand jury.

Justice Hugo L. Black: You say no subpoena has been issued.

Mr. Reeves Bowen: No -- no subpoena has ever been issued.

Justice Hugo L. Black: How did Florida directly involve there?

Mr. Reeves Bowen: They have not.

They have not.

He -- he'd be --

Justice Hugo L. Black: And what -- what was the basis on which it asked that he'd be sent (Inaudible)

Mr. Reeves Bowen: The basis of course, New York asked that he'd be sent there once if they'll go have a term of grand jury and they already had one, I believe, in session, that they were investigating the disposition of funds in the union, certain unions including Mr. O'Neill's union.

And that was the basis upon which they asked for him to come.

They wanted his testimony before the grand jury.

Justice Hugo L. Black: And I can see it on the basis (Inaudible) the witness before the said grand jury be required to appear 15 days.

Mr. Reeves Bowen: That's right.

That's right.

Justice Hugo L. Black: Do you think that the judgment would be just to go ahead on this same case or some other grand juries?

Mr. Reeves Bowen: I hadn't considered that but I -- I think that -- that it says New York still wants him before a grand jury.

That it's utterly immaterial whether they put him before that grand jury that was in session in 1956 or whether they put him before a new -- new grand jury.

They -- I -- I couldn't state a fact that more adequately attest to the fact that New York wants him than to point out all the expense and effort it has made to get this case heard here in this Court to get -- to -- to get it reversed so they could get.

Justice William J. Brennan: So in any event, Mr. Bowen, there's never been an actual hearing in any of the three elements that Justice Stewart referred to in the statute, has there, and since the --

Mr. Reeves Bowen: There has been -- there has been no hearing on the facts at all.

Justice William J. Brennan: Well, now, if you should prevail on the constitutional question that there'd have to be a hearing, is it not?

Mr. Reeves Bowen: It would -- it would -- the -- the person is entitled to a hearing (Voice Overlap) --

Justice William J. Brennan: And it might be that -- it might be that the fact finding now would be that one or more of those requisites could not be satisfied.

Mr. Reeves Bowen: It is possible that the -- that the hearing would so develop.

He might be able to produce proof that it would show that and he would -- should not be said under that law.

But that has not been determined.

It's -- it's solely on the face of the papers that the decision of the Circuit Court was rendered.

Justice Potter Stewart: Mr. Bowen, I have another question.

It's been covered, I've missed it.

It suggested in the briefs that another infirmity of this legislation may be that it does not provide for release on bail (Voice Overlap) --

Mr. Reeves Bowen: Our Supreme Court --

Justice Potter Stewart: Now, I know in this case the man was released and that may be the answer --

Mr. Reeves Bowen: And that's --

Justice Potter Stewart: -- that that's their (Inaudible)

Mr. Reeves Bowen: But -- but the bail that -- that Mr. Cushman had in mind as I understood it was to put him on bail to go to New York, not temporary bail pending a hearing in the Florida Court.

But given with -- now, Pennsylvania for example has got a statute which says that a man that sought to be extradited can make bail to appear there unless it's a capital case I believe.

I think that I ran across that -- that statement in -- in a case cited by Mr. Cushman In re Allen.

Justice Felix Frankfurter: Well, that is all -- all the courts unless it has explicitly prohibited power to allow people on bail and free them from incarceration.

Mr. Reeves Bowen: No, sir, you can't when it comes to extradition.

Justice Felix Frankfurter: (Voice Overlap) extradition, as to the crime --

Mr. Reeves Bowen: For crime --

Justice Felix Frankfurter: -- for detention of witnesses?

Mr. Reeves Bowen: Our Constitution provides that -- that he is entitled to bail unless he's charged with a capital offense in serious circumstances.

He -- he is entitled to bail --

Justice Felix Frankfurter: (Voice Overlap) witnesses, not a -- a potential criminal (Inaudible)

Mr. Reeves Bowen: Sir --

Justice Felix Frankfurter: You have to begin with exact legislation dealing with the procuring of testimony from witnesses and not the process of conviction for crime.(Voice Overlap) --

Mr. Reeves Bowen: That -- that's what we're dealing with.

We're not dealing with a conviction for crime at all.

In fact, there's no crime charged against Mr. O'Neill, first or last.

Justice Potter Stewart: Well, do you think that the statute does provide for enlargement on bail?

Mr. Reeves Bowen: You mean to the --

Justice Potter Stewart: Pending a hearing, say or --

Mr. Reeves Bowen: Pending hearing in Florida?

Justice Potter Stewart: Yes.

Yes.

Mr. Reeves Bowen: I -- I impliedly conceded to that without -- by never raising it in the Supreme Court.

Justice Potter Stewart: And I suppose that's the short answer that it's not therefore before us.

Mr. Reeves Bowen: I -- I just -- I just accepted that it was fitting and proper and it was in the Court's power to do it.

Where he felt like the fellow wouldn't run off but would respond to the bond, and his faithful justified in this instance because he did respond, and to hear it, until he was discharged by order of the Court.

In this --

Justice Hugo L. Black: Was the order -- was the order issued to him to go back?

Mr. Reeves Bowen: No, he was ordered to go back.

Justice Hugo L. Black: But was the judgment of the court based solely on the order of judge -- the --

Mr. Reeves Bowen: Circuit judge?

Justice Hugo L. Black: No, the judge in New York as shown by the order that he was just here before November grand jury of that year.

Is that the only basis on which the order rests and on which the controversy with him as to going back (Inaudible)

Mr. Reeves Bowen: That has, to my knowledge, been nothing put before the Florida court except that original certificate of Judge Fischer, the New York judge.

Justice Hugo L. Black: And that's what Judge Holt acted on.

Mr. Reeves Bowen: That is what he acted on and -- and among other things, he held that the papers on their face didn't show that Mr. O'Neill was a material and necessary witness but Supreme Court of Florida turned him down on that and said that was -- and they said they did show on its face.

Justice Hugo L. Black: And the Supreme Court of Florida did not test below under his own constitution, did it, but reserved that --

Mr. Reeves Bowen: No --

Justice Hugo L. Black: -- reserved that for the future.

Mr. Reeves Bowen: I -- I don't recall a single reference to the Constitution of Florida in the decision.

I don't think there is any.

Justice Hugo L. Black: Well, I -- I thought I read one a moment ago.

Maybe, I didn't.

Mr. Reeves Bowen: Well, perhaps you did but I don't recall it.

It may -- it may have been a reference to due process.

It may have been Section maybe 12, the Declaration of Rights and the Fourteenth Amendment afford due process.

But -- but they didn't place their decision on that.

They placed their decision squarely upon the two sources of the Federal Constitution.

In spite of this, Mr. Cushman continues to argue that the sole power of extradition --

Chief Justice Earl Warren: Solicitor General, I think our -- our time for adjournment and your time is up.

I think we'll have to -- we'll have to take an adjournment now, and we'll get the rest from your brief.

Mr. Reeves Bowen: Thank you.