HANNAH v. LARCHE

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Argument of Lawrence E. Walsh

Chief Justice Earl Warren: Number 49, John A. Hannah et al., Appellants, versus Margaret M. Larche et al., and number 550 John A. Hannah et al., Petitioners, versus J. A. H. Slawson et al.

Mr. Walsh.

Mr. Lawrence E. Walsh: Mr. Chief Justice --

Chief Justice Earl Warren: Mr. Walsh.

Mr. Lawrence E. Walsh: -- may it please the Court.

These two cases both arise in the Western District of Louisiana.

One is before you on an appeal from a three-judge court in that district and other is before you on petition for certiorari in advance of the Court of Appeals' decision reviewing a one-judge decision -- one-judge judgment in the same district.

The reason that we have asked and our opponents have not opposed bringing the one-judge case along at the same time is that the judgments in both cases are identical and the -- the -- all of the issues in the one-judge case are included within those of the three-judge case.

Both judgments enjoin the Civil Rights Commission from holding a hearing in the State of Louisiana with respect to voting -- with -- with respect to racial discrimination in the administration of the election laws unless the Commission permits independent cross-examination of the witnesses by counsel for the various voting registrars and others who may be adversely affected by that testimony.

Adversely affected in the sense of (Inaudible) or -- or shame.

The plaintiffs in the Larche case are all registrars in various counties in Louisiana, mostly in the northwestern part of the State.

The plaintiffs in the Slawson case are private individuals.

One is a former registrar and the other five are persons who have been active in connection with challenging registrants in -- in purging from the registers, persons who had already registered upon grounds which are usually highly technical.

Justice Potter Stewart: Can any citizen do that in Louisiana?

Mr. Lawrence E. Walsh: Yes.

Two citizens, I believe, are required for us to the challenge.

There are two registered voters, I should say, as Mr. -- as the Attorney General points out.

Both sets of plaintiffs have asked the court -- asked the court below for relief in two capacities as prospective witnesses themselves and as persons who anticipated being defamed by the testimony of other witnesses who testified.

The court below, Judge Wisdom dissenting, granted the injunction and its theory was that these persons are really under investigation for a criminal misconduct that they're subject to loss of office, if in fact, they did commit a crime.

And that in any event, they're subject to public opprobrium and scorn.

And that therefore, Greene against McElroy governs.

And that under the Greene case, it is assumed that Congress intended to require the Civil Rights Commission to permit independent cross-examination of these witnesses and also confrontation and appraisal of the charges which were -- were to be the subject of the hearing.

And that inasmuch as Congress did not, in expressed negative terms say that no such cross-examination was required.

The Court interprets the statute to require such independent cross-examination.

And under those circumstances, the Civil Rights Commission's rules of procedure which limit cross-examination to members of the Commission and the Commission staff was held in variance with the statute and this made it unnecessary for the court below to go to the constitutional question, because it felt the injunction was justified because the rules of the Commission were not in accord with the statute.

Justice Hugo L. Black: Is that the only question decided?

Mr. Lawrence E. Walsh: That is the only question decided except it also held that these -- that the Commission should let the witnesses -- these -- these witnesses -- these plaintiffs, know in advance, the precise complaints which were to be the subject of the hearing.

In other words, to let them see the written complaints, what the Commission had received.

The other question decided below was to hold the Civil Rights Commission -- that -- to the statute, the Civil Rights Act of 1957, insofar as it established the Commission to be a constitutional exercise of Congress' power.

The plaintiffs had challenged that as a -- as a proper legislative act of Congress on the theory somewhat the same as in the Raines case, which was argued here a week ago, that inasmuch as the Commission was not limited in its investigation to acts of state officials and could in its investigations and hearings go into questions of acts of individuals and connects with -- in connection with voting violations that it was not a proper legislative purpose.

But the court below held that it was a proper legislative purpose and held it in favor of the Commission to that extent.

Justice Hugo L. Black: Would you mind pointing out in record, the precise ruling that you consider to be before us?

Mr. Lawrence E. Walsh: Yes, sir.

Justice Hugo L. Black: Besides the point which we have to decide.

Mr. Lawrence E. Walsh: The opinions is at the very end of the record and --

Justice Hugo L. Black: At the end of the record, the printed record?

Mr. Lawrence E. Walsh: The printed record at page 250.

And the issues are posed that -- in this way, by the court below.

And this is after the court had held the statute, the act constitutional as a proper exercise of legislative power said, “The remaining pertinent and serious questions presented maybe as stated.

One, did Congress in creating the Commission, specifically authorize it to adopt rules for investigations conducted under Section 104 (a) (1) of the Act, which would deprive parties investigated of their rights of confrontation and cross-examination and their right to be apprised of the charges against them.”

And then it states the second question which it never reached, “If Congress did so authorize the Commission and such authorization constitutionally permissible?

Justice Hugo L. Black: But that first is what you consider to be the question?

Mr. Lawrence E. Walsh: Yes, sir.

Justice Hugo L. Black: (Voice Overlap) --

Mr. Lawrence E. Walsh: And the real question.

And the position of the Commission is that the Civil Rights Commission has a duty to make this survey for Congress.

It has no power whatever to act adversely to any of the -- of the plaintiffs.

It can decide nothing and its action is not even a step along the way to any acts and adverse to the plaintiffs.

And therefore, of course, Greene against McElroy is not applicable at all.

Justice Hugo L. Black: Then we are to consider that the rules that have been adopted do deprive persons investigated, I won't say their rights.

And do deprive them of any opportunity to confront and cross-examine witnesses brought before the Commission.

Mr. Lawrence E. Walsh: Actually, Your Honor, I don't think you have to decide anything except whether you have -- except to assume that the rules deprived him of the right to independent cross-examination.

I'm sure that the facts will show in this case, there's no denial of appraisal or confrontation.

Justice Hugo L. Black: Did the -- but the -- the rule does provide that they shall not be confronted, or doesn't it?

Mr. Lawrence E. Walsh: No, no.

The -- the rule doesn't mention the word confrontation at all, there -- the -- except that any --

Justice Hugo L. Black: But it does deprive them of their right of cross-examination?

Mr. Lawrence E. Walsh: It does deprive them of their right of cross-examination.

And as to confrontation, the rules require that in any case where the Commission is aware that a person will be defamed by the testimony, is -- is a fair play rules of the -- of the House of Representatives, that he must -- that the testimony must be taken in executive session and the person adversely affected notified.

And then the rules go further and require that the person adversely affected by the testimony shall receive a transcript of the testimony taken in executive session.

Justice Hugo L. Black: Do you -- do we have the question before us, as to whether they can examine them in executive session entirely, is that here?

Mr. Lawrence E. Walsh: No.

There's no -- no challenge to the use of the executive session here the --

Justice John M. Harlan: How does the question arise?

These people, did they actually get before the Commission, the --

Mr. Lawrence E. Walsh: No, sir.No, Your -- Mr. Justice Harlan, they did not.

The -- the Commission started its investigation of these Louisiana complaints and on the eve of the hearing, Friday before the hearing was to begin on the next Monday, this restraining order was issued and the -- the holding of the hearing enjoined.

Justice John M. Harlan: On allegations that this would be the kind of a hearing that they have?

Mr. Lawrence E. Walsh: On allegations this would be a kind of hearing it would have and it would cause irreparable damage once this testimony came out.

Justice John M. Harlan: And it was denied by the Commission that the kind of a hearing that they figure it was the kind that would be here?

Mr. Lawrence E. Walsh: The -- the Commission denied the use of the word charges.

The -- the Commission conceded that a substantial number of these complaints, and it was stipulated.

That a substantial number of these complaints would allege a deprivation of the right to vote because of race through the acts of these plaintiff registrars, but there was no other concession as to the nature of the charges or to -- this about losing jobs or criminal danger of criminal prosecution or any of those things.

Justice John M. Harlan: You know, all I meant to get out was that if these people went before the Commission, there's no (Inaudible) that they would not be -- you wouldn't take issue with the claim whether they are entitled to have it or not, they would not be entitled to cross-examine and --

Mr. Lawrence E. Walsh: Oh, there's no -- no issue --

Justice John M. Harlan: There's no issue about that --

Mr. Lawrence E. Walsh: The rules are expressed in that respect.

Justice John M. Harlan: Yes.

Justice Charles E. Whittaker: I think Judge (Inaudible) in that -- their power to review, there has been -- used the phrase, “statute deprived them of their right to confrontation and cross-examination,” I think you answered, yes.

Now, do you really mean that --

Mr. Lawrence E. Walsh: Well, now, I believe --

Justice Charles E. Whittaker: -- deprive them of a right to confrontation and cross-examination?

Mr. Lawrence E. Walsh: Mr. Justice Whittaker, we mean that they did not have such a right.

Justice Charles E. Whittaker: You mean --

Mr. Lawrence E. Walsh: Of their -- their claimed right, excuse me, sir.

Justice Hugo L. Black: I think I said, opportunity.

I intended to change it if I could and was a mistake.

I (Inaudible) right was used here, but I thought I changed this opportunity.

Justice Charles E. Whittaker: Well that's the issue we have, isn't it?

Mr. Lawrence E. Walsh: That -- that's the issue and the -- the position of the Commission -- the further position is that even if we applied Greene standards here, they've been met, whereas this Court in the Greene case, dealt with the problem of -- of assembling fragments to find authorization for what the Secretary of Defense did.

Here, Congress has left nothing to anyone's imagination.

It has set forth in one section the rules of procedure to be followed by this Commission.

And that the Commission has followed them and indeed liberalized them to some extent.

The -- the facts as they occurred just before I get to the statute and go through it with care, it might help you to have -- that seems to --

Justice Hugo L. Black: But they -- they argue seemingly I have read the whole of the brief --

Mr. Lawrence E. Walsh: Yes.

Justice Hugo L. Black: -- but they argue a lot about being made to incriminate themselves and defaming themselves.

Is there anything -- does that have to be decided here?

Mr. Lawrence E. Walsh: No, the -- they are not being asked -- they -- there's nothing -- no question of their privilege against self-incrimination here at all.

The only question is whether the danger of defamation from other witnesses --

Justice Hugo L. Black: (Voice Overlap) --

Mr. Lawrence E. Walsh: -- from -- from persons who were deprived of the right to vote.

Justice Hugo L. Black: Well, that wouldn't excuse them from coming as witnesses, would it?

Mr. Lawrence E. Walsh: No, sir.

I don't think so, Mr. Justice, but --

Justice Hugo L. Black: Is there objection aimed at the Commission's right to investigate or the Commission's right to call them in as witnesses?

Mr. Lawrence E. Walsh: The -- it's aimed at -- at both.

They say that they have no right to be called in as witnesses because they haven't seen the written complaints and to see exactly what the complainant said about.

And they say that they're -- that the Commission has no right to hold this public hearing because they are not in the position to protect themselves, by independent cross-examination.

That's the -- the essence I think of the two --

Justice Felix Frankfurter: Does the -- does defamation enter into the case because there maybe undisclosed complaints against them of a defamatory character, which they cannot meet because no disclosure is made of those withheld documents?

Mr. Lawrence E. Walsh: That is their -- their claim.

Justice Felix Frankfurter: Alright.

Mr. Lawrence E. Walsh: The fact of the matter is that they -- as that the facts will show, have been very well told, exactly what their (Voice Overlap) --

Justice Felix Frankfurter: That is -- that's the basis of their defamation.

Mr. Lawrence E. Walsh: Yes, sir.

Justice Charles E. Whittaker: What's the difference, if I may ask, the Greene (Inaudible) and the Groban (Inaudible)

Mr. Lawrence E. Walsh: The Groban case went beyond our present case, because in -- in the Groban case, there -- there was some danger of prosecution.

And in investigating the cause of fire, there were some fear by the plaintiff that he might be the subject of ultimate criminal action.

And further in the Groban case, as I remember it, there was an element of secrecy, none of that is here.

This Commission has no power to do anything and as Your Honors have a chance to see their report on Louisiana and the statute which set them up, you will realize that this Commission had no interest in these registrars as individuals in the sense of targets at all that the --

Justice Charles E. Whittaker: (Inaudible) you were told in Groban, but the Fire Marshal might constitute to interrogate this man even though he was a suspect and we have no conflict.

Mr. Lawrence E. Walsh: Yes, but we -- we -- I -- I didn't make myself clear.

We believe that Groban is a fortiori in our favor that -- that we are well within the holding of the -- of the Court in, In re Groban.

Justice Charles E. Whittaker: Oh, the distinction and there are existence you say, but the (Inaudible)

Mr. Lawrence E. Walsh: Yes.

In other words -- well, we could even satisfy the standards of the dissent.

I believe in, In re Groban.

Justice Potter Stewart: Groban was a Fourteenth Amendment case, was it not?

Mr. Lawrence E. Walsh: Yes, sir.

It was.

Justice Potter Stewart: Actually (Voice Overlap) --

Mr. Lawrence E. Walsh: Ohio statute.

The -- the Commission was established in 1957, and just to tell you how this controversy arose, it divided its fields of activity into three, voting, housing and education.

We're concerned only with voting.

Under the statute, the Commission is required to investigate every sworn complaint as to discrimination and voting.

And in -- it started out with, I think, some 600 odd complaints throughout the country.

It went to Alabama first, because it had the most complaints there.

The next state was Louisiana where it had 63 or so complaints.

The Commission did not want to hold a hearing.

The -- it has this duty to investigate, but no mandatory duty to hold a hearing.

And the -- having received the complaints and checked the Louisiana statutes to find that Louisiana does have a literacy test which is an extremely difficult one, requiring voters to explain sections of the Constitution to the subjective satisfaction of the registrars in checking the statutes and the statistics released by the State's Secretary of State to show the pattern of registration and seeing a gross disparity in some parishes between the population figures, between white and Negro and the registration figures between white and Negro.

It arrived at a point where it had to see the registrars' records in those parishes to do a job for Congress and also had to ask the registrars for explanations, if they would give them.

And beginning in January of 1959 and lasting through until June of 1959, Mr. Gordon Tiffany, who was the Staff Director of the Commission, conducted extended negotiations with Attorney General Gremillion of Louisiana in the hope that this information could be obtained without the time and expense of a public hearing.

The Commissioners, I might add, are not fulltime government officers.

They are all men with fulltime private occupations, who give one or two days a month or whatever additional time may be needed to this work.

And the life of the Commission was running out with -- and the -- there was a question of whether this -- it could hold another hearing on housing and because of the impossibility of reaching a voluntary solution here, this hearing was held.

I mention all these just to allay at the outset any thought of exposure for exposure's sake.

This Commission didn't want to hold a hearing and the only reason for it is that it felt that it had to hold a hearing to use its subpoenaing power which ultimately had to come into play, because it couldn't get this information voluntarily.

Justice Hugo L. Black: Is there any federal statute which would make it a criminal offense?

Mr. Lawrence E. Walsh: These --

Justice Hugo L. Black: To deprive people of their vote on account of race?

Mr. Lawrence E. Walsh: Yes.

If -- if it's done by -- by conspiracy, Your Honor and that, I think, Section 242 of Title 18, deals with that subject.

In all those cases, there will be a question of -- of intent and the -- and Louisiana also has statutes, which makes it a crime to willfully disobey its election law.

So there -- there are criminal statutes which would be available for prosecution.

All of them had elements of willfulness or intent and there's nothing in this record that suggest that any complaint before the Commission alleges willfulness or intent or any such thing that -- the Commission had were grievances.

People who say I thought I was entitled to vote.

I went to the registrar and as a matter of fact it's in the report of the Commission, the substance of -- of this type of complaint is available.

I went to the registrar and he asked me to read a section of the Constitution, said it didn't satisfy him and I -- I went back a second time and tried to do it and still didn't satisfy him and I came home.

It's so -- there's no suggestion in the record which justifies the inference that these people were being investigated in any way leading to criminal prosecution.

The entire record and the entire report of the Commission is that of a group trying to get an overall picture of a -- of a national problem to fulfill its duty of reporting to Congress.

Justice Hugo L. Black: I suppose that you said though and I take that some difference in attacks made by witnesses.

Any witnesses or attacks made by people who might be subjected to criminal prosecution right now.

I'm not saying to what extent, but there might --

Mr. Lawrence E. Walsh: If a person (Voice Overlap) --

Justice Hugo L. Black: -- be different problems involved.

Mr. Lawrence E. Walsh: If a person felt he might be subject to -- to criminal prosecution, would have the problem of -- of McGrain against Daugherty where a legislative investigation would incidentally -- might incidentally disclose a misconduct for a crime by a person who was a subject to the testimony.

Justice Felix Frankfurter: Well, we can't consider this case or can we that all possibility of whatever scienter or willfullness is required under theirs to the right statute is to be excluded from consideration.

But none of this may -- no -- no withholding of the right or the opportunity, the right about -- otherwise qualify Negro citizens to vote is to preclude the assumption there might be some willfulness about it.

Is that to be excluded from all considerations?

Mr. Lawrence E. Walsh: No, that --

Justice Felix Frankfurter: What the Commissioner was doing, I'm just asking that.

I'm only --

Mr. Lawrence E. Walsh: But that the Commission was excluding this -- the possibility of willfulness?

No --

Justice Felix Frankfurter: I don't mean in these -- these specific instances but in the whole domain they're requiring, they don't exclude willfulness.

Mr. Lawrence E. Walsh: No, sir.

No.

Justice Felix Frankfurter: I misunderstood you.

Mr. Lawrence E. Walsh: I -- I'm sorry if I --

Justice Felix Frankfurter: Oh, no -- no.

It's all clear now.

Mr. Lawrence E. Walsh: But the -- after receiving the complaints, the -- the Commission tried to arrange interviews with the registrars and get the information that way and then when that failed, they tried to negotiate out a series of interrogatories.

And they actually sent out to the registrars a -- a series of interrogatories with 300 odd questions which laid out explicitly and in the greatest detail, the points as to which they were curious and the hope that by this means they could get the information which would explain or put in the proper perspective these complaints, which they'd receive.

At this point, Your Honors, that if I -- if I might, I would like to direct attention to the statute which set up the Commission.So that it's -- it's the limitations on its powers might be apparent to all of us as -- as we consider the adequacy of its procedures.

And at page 62, in the record, is the Act -- the Civil Rights Act of 1957, begins at page 59.

But at page 62, in Section 104, which is the only section specifying the duties of the Commission and inferentially, the powers of the Commission.

You'll see that breaks into the three subjects that it's to -- required to investigate sworn charges that persons who were deprived of their right to vote by -- because of race.

And that it's required to study and collect information concerning legal developments denying equal protection of the law.

And three, to appraise the laws and policies of the Federal Government with respect to equal protection of the laws.

And all that it can do ultimately is set forth in subparagraph (b) which requires it to report to the President and to the Congress its activities, findings and recommendations.60 days after it reports, it's -- it ceases to exist, so that's all that it can do.

Justice Hugo L. Black: Well is that decisive?

Mr. Lawrence E. Walsh: Now, I think that's decisive as far as any reference to the Greene case is concerned.

Because in the Greene case, it was conceded that the action of the -- of the administrator caused the loss of a person's employment.

And it's further that it limited his field of employment.

And that -- it was in the -- in the Greene case, there was an adjudication which whether agreed with or not or whether persuasive or not, prevented a man from having that which he needed in order to work.

Justice Hugo L. Black: Would mean a difference here in your judgment if this -- instead of saying what it does that it investigate allegations in writing under oath?

Certain citizens have violated the criminal statutes by depriving people their vote on account of race or color.

This Commission isn't authorized to investigate it and make a report to the President or the Attorney General within 60 days?

Mr. Lawrence E. Walsh: I think that -- Your -- Your Honor, I would believe that such a statute could be sustained with the same procedures.

But there would be there a greater danger because the object of the Commission would've been narrowed to those acts which are criminal and it would be clear that it and its findings was passing in a sense, on a question of someone -- whether someone had committed a crime or not.

Whereas here, there's no suggestion that the Commission is doing that in its report to the extent that it's been complete --

Justice Hugo L. Black: It's not called a crime, but it would be rather difficult to get up actions of that kind, it wouldn't violate the voting, wouldn't it?

Mr. Lawrence E. Walsh: Well, that -- that in Louisiana, Mr. Justice Black, it's -- it's not -- it's not too easy to equate the denial of registration with a crime, because it has these statutes which requires that a register -- an application for registration satisfy the registrar as to his interpretation of a provision -- of any provision of the Constitution of the State of Louisiana or the Constitution of the United States.

The -- the range of judgment that is open there to the registrar and the difficulty to the application -- to the -- to the applicant is such that I -- I think that there would be a number of cases in which a complainant might feel that he was being denied his right to vote because of his race.

Whereas in -- when there would be no possibility of proving a crime against the registrar.

Justice John M. Harlan: As part of the Congress enactment, the Government's position would be (Inaudible)

Mr. Lawrence E. Walsh: Exactly, Mr. Justice Harlan.

Justice John M. Harlan: (Voice Overlap) --

Mr. Lawrence E. Walsh: That -- that is it.

Justice Hugo L. Black: Do you think that settles all our problems?

Mr. Lawrence E. Walsh: I -- I think [Laughs] it would -- I think it would justify the reversal of this case because that was the (Voice Overlap) --

Justice Hugo L. Black: (Voice Overlap) on the ground that this is investigation and not an adjudication.

Mr. Lawrence E. Walsh: That -- yes.

Justice Hugo L. Black: (Voice Overlap) --

Mr. Lawrence E. Walsh: Or not -- and -- and I go further and not even a preliminary step toward a -- an adjudication.

It's not a step in the chain of judgment as an indictment is in the chain of prosecution.

Justice Charles E. Whittaker: What's the basis (Inaudible) and we might have those at some (Inaudible) this and that indictment.

Mr. Lawrence E. Walsh: No.

The -- I think, this case is -- is in a sense -- the -- the procedures in this case are less hazardous to the point of view on which I am being questioned than those of an indictment where a man is under charges and as I -- on the road to prosecution, he has no right to cross-examination.

He has no right to know what's going on in the grand jury or what complaints are in the office of the U.S. Attorney, whereas here, these people are in no danger through -- through this agency of prosecution at all.

This agency's report will have no bearing -- nothing that this agency says will, as a matter of official action, have any bearing on what element they have as to these people.

This -- this Commission has no -- no status to communicate officially with any prosecutor.

Its communications are to the President and to the Congress.

The Commission's objects are -- when -- when read in -- read together are clearly the -- those of making a report on which legislation can be based.

So I -- I think that the analogy of the indictment is -- is a good one and again, like the reference to In re Groban, this case is -- is -- if there is any objection to this of sort of proceeding, it's not subjection but a matter of an indictment.

Justice Hugo L. Black: Are you sure this can be analogized to be the exquisites of indictment by the grand jury living in the community where the case was investigated?

Mr. Lawrence E. Walsh: I'm not sure that I follow the thrust, if Your Honors please.

Justice Hugo L. Black: Well, the grand jury of a historical agency that certain probability is based on the ground that -- and they're once friends and neighbors sit on a grand jury theoretically.

They investigate the situation in that community and they let them sit out the charges that will be proffered.

Mr. Lawrence E. Walsh: Yes, sir.

Justice Hugo L. Black: And I -- I suppose, you could hardly claim all the privileges that a grand jury have for investigating committee of any kind, couldn't you?

Mr. Lawrence E. Walsh: I -- I think Your Honor that we could -- could claim no greater duty to permit a cross-examination -- independent cross-examination on a grand jury.

Justice Hugo L. Black: Well, that might follow, that might follow.

Mr. Lawrence E. Walsh: Of course --

Justice Hugo L. Black: I don't say it wouldn't now, I'm just asking you how you could put them on the same thing --

Mr. Lawrence E. Walsh: It seemed to me that --

Justice Hugo L. Black: -- constitutionally speaking and historically speaking.

Mr. Lawrence E. Walsh: I think in -- in fact that these registrars are given a choice as to which agency they would rather have look into them.

This Civil Rights Commission or a grand jury, they would prefer to have the Civil Rights Commission do it.

Justice Hugo L. Black: Well, that Court wouldn't have much to do then?

Mr. Lawrence E. Walsh: Yes sir.

And I thought Your Honor might -- well, to go back to the -- to the statute and having mentioned the duties and the ultimate function of the Commission, I should like to point out that in the next section, the means to the end are set forth which are a full time staff, advisory committees and the use of public hearings with subpoenaing power.

That's -- that's the entire range of their -- and in connection with the hearings at page 60 of the record, it is Section 102 (a) in which Congress expressly sets forth the rules of procedure which is to govern the Commission.

And here, assuming arguendo that Greene does have some application, is the answer to the test which this Court put in Greene, as to whether or not there had been careful and deliberate consideration given to the question of what procedure should be followed and whether these can set forth expressly.

And in this --

Justice Hugo L. Black: At page 160 of the record.

Mr. Lawrence E. Walsh: No, it's 60, Your --

Justice Hugo L. Black: Page 60 --

Mr. Lawrence E. Walsh: -- Mr. Justice Black, page 60.

Now, let -- it's 102 (a).

And there -- are set forth there 11 rules of -- of procedure.

These are -- an adaptation of the House of Representatives, so-called, “fair play” rules which govern their -- their standing committees.

And the -- the subdivisions which I think would interest the Court at this moment are the first which requires the Chairman to announce it in his opening statement, the subject for the hearing and then Subdivision (c) which deals with this precise question.

“Witnesses at the hearings may be accompanied by their own counsel for the purpose of advising them concerning their constitutional rights.”

And then Subdivision (e) which provides that the -- if the Commission determines that evidence or testimony may tend to defame, degrade or incriminate, it shall receive such evidence in executive session and afford the person an opportunity to voluntarily appear as a witness and to receive and dispose of his request for additional subpoenas.

I don't believe any of the other subdivisions bear on this -- this problem.

Chief Justice Earl Warren: I wonder if the Commission determined that it would defame, degrade or incriminate a person that it should have the right itself to -- to say the testimony should be given in the executive session without regard to the wish of the witness?

Mr. Lawrence E. Walsh: That -- that question wasn't raised, Your Honor, but the -- the whole purpose of the executive session is to protect the person who's -- who's subject to defamation.

Chief Justice Earl Warren: I know but suppose he didn't want to -- suppose he didn't want to testify in the executive sessions, suppose he said now, “I'm going to testify -- I want to testify before the world in --“ and what -- what effect would you give to this section?

Mr. Lawrence E. Walsh: That there -- there might be two -- two persons in that position.

One, the complainant, who's -- who's told that your testimony will probably defame registrar X, so you must testify in executive session.

If he refused to so testify, I think he would be guilty of contempt.

The other person would be the registrar himself.

Chief Justice Earl Warren: That's the one I'm thinking --

Mr. Lawrence E. Walsh: I -- I --

Chief Justice Earl Warren: -- not the other (Voice Overlap) --

Mr. Lawrence E. Walsh: No.

Oh, the registrar -- there's no -- no power to compel him to testify in the executive session.

It's only the person who might defame the registrar --

Chief Justice Earl Warren: I see.

Mr. Lawrence E. Walsh: -- can be compelled to testify in the executive session.

Chief Justice Earl Warren: That's required?

Mr. Lawrence E. Walsh: Yes, sir.

It is.

Chief Justice Earl Warren: Yes.

Justice Hugo L. Black: Where is the provision for (Voice Overlap) --

Mr. Lawrence E. Walsh: It's in --

Justice Hugo L. Black: -- for contempt.

You said he could be punished for contempt?

Where is that provision?

Mr. Lawrence E. Walsh: There's no such -- no -- no such expressed provision.

Justice Hugo L. Black: So why do you say --

Mr. Lawrence E. Walsh: Except that -- the -- that under the subpoenaing power, excuse me, Your Honor, on page 64, Subdivision (g) of Section 104 provided in case of contumacy or refusal to obey a subpoena, served for the District Court, may on application of the Attorney General, first order them to appear and then if they fail to appear, they are -- may be punished for contempt by the District Court's order.

The -- the Commission itself has no contempt power.

Justice Charles E. Whittaker: Supposing you could see (Inaudible)

Mr. Lawrence E. Walsh: I -- seem to me, Your Honor, that would be covered by in a case of contumacy.

Justice Hugo L. Black: What is the punishment fixed?

Mr. Lawrence E. Walsh: There's no -- no punishment fixed except that the punishment of the -- of the -- for the contempt of the court's order.

Justice Hugo L. Black: So what -- what is that?

What -- within what limits?

Mr. Lawrence E. Walsh: It's the -- the limits that apply to -- to a United States District Court, I don't believe there are any fixed limits.

Justice Hugo L. Black: There are not any fixed in this answer --

Mr. Lawrence E. Walsh: None -- none fixed in this answer.

Going from the statute now, the rules of the Commission -- we'd came from at it, may begin on page 55 of the record.

But the first -- first two sections don't -- the first section has no bearing on this, I don't think.

And Section 2 and 56 really merely restates the statute.

Because these rules were designed to be given to each witness as he testifies, so 2, includes the statute.

And then the real implementing rules are found in Section 3 which begins on page 57.

Your Honors, would turn over to page 58 and look at Subdivision (i) you'll find the regulation which is the heart of this controversy which provides that -- interrogates any witnesses at hearings shall be conducted only by members of the Commission or by authorized staff personnel.

The -- or the -- the Commission's theory in adopting this rule was that the statute, Section 102, adopted a complete code of procedures for it to follow.

That it was parallel to the fair play rules of the House of Representatives and that the interpretation which those -- these rules had received where it be the -- and must be the interpretation followed by the Commission.

And in addition, I might point out that Section 102, Subdivision (c) does have the express limitation attached to the right of counsel.

It says, “Witnesses at the hearings may be accompanied by their counsel and then for the purpose of advising them concerning their constitutional rights.”

An act of the Commission was an implied limitation of a requirement on the Commission to -- to permit them to exercise any other function.

But the real support for the Commission's position lies in the legislative history of the statute which is extensive, which is harmonious and which was complete, which was barely fought out so that there's nothing here left to speculation as to whether Congress knew and deliberately made this choice or whether it didn't.

Now, we have in our reply brief at the very end, an appendix which covers most of it, but unfortunately not all of it.

And if I may try the patience of the Court, I would like to try to put together in -- in the coherent and chronological sequence.

The controversy over civil rights really began in -- at least it came to a boil in 1956, the year before the Act was enacted.

And at that time, the -- the House passed a civil rights act and on -- and as it was at the brink of passage, Congressman Dies introduced a -- an amendment which provided for the procedure to be followed by the Commission.

Now, the Dies Amendment which will figure through the subsequent history is found in our main brief at page 64.

Actually, it begins at the bottom of page 63, but the text is on page 64.

And a --

Justice Felix Frankfurter: It wasn't --

Mr. Lawrence E. Walsh: Just the next to the last page of the brief.

And on the left-hand page, Your Honor will see Subdivision (s) which provides that “If a person is adversely affected by evidence or testimony given in a public hearing, that person shall have the right to do these various things.”

And then if you look at Subdivision IV of (s), there is the expressed right to cross-examine in person or by counsel, such adverse witness.

That was the rider which was put into the bill in 1956.

That bill did not pass the Senate.

And so the following year, in 1957, again, the activity started to pass the civil rights bill.

In the Senate, a bill was introduced by Senator Dirksen, the minority with -- cosponsored by over half of the minority members.

It was a major vehicle for the consideration of this subject.

That bill had this identical language of the Dies -- Dies rider in it.

And Senate 83 which is Senator Dirksen's Bill is found in an appendix to Judge Wisdom's dissent at the very end of the record page 270.

I apologize for the scattered nature of this page -- it actually begins on page 269 of the record.

And then if you turn over the page to page 270, you'll find there again Subdivision (s), the identical provision that was in the Dies rider.

There were hearings held on this -- on S.83 and in our reply brief at page 10.

Most -- everything else is in the reply brief.

I'm sorry, but we got a few things.

In our reply brief at page 10 at the bottom of the page is Attorney General Brownell's comment with respect to this procedure.

He is talking about S.83 before the Senate Judiciary Committee.

He said -- now there's one other addition to the S.83 that I would like to make special reference to.

And that is the provision for rules of procedure contained in Section 102 on pages 2, 10 of S.83.

“These rules of procedure are considerably more restrictive than those imposed on regular committees of the House and Senate.

There is much in them which clearly would be desirable.

We have not as yet had any experience with the use of rules such as those proposed here.

And we cannot predict the extent to which they might be used to obstruct the work of the Commission.”

Then he says how he favors such rules that -- and then he goes on one paragraph further down.

“That I feel that the task to be given to this Commission is of such great public importance that it would be a mistake to make it the vehicle for experimenting with new rules which may have to be tested out under the courts.”

And this is only a two-year Commission.

And you might have to spend those two years studying the rules instead of getting at the facts.

Well Senate 83 kept those rules.

It was reported by its subcommittee to the main -- to the full Judiciary Committee, but it never got any further because parallel with it, there started in the House, the bill which ultimately became law.

And that there were two bills, started by Congressman Celler and one by Congressman Keating, they -- the Chairman and the minority -- the senior minority member of the Judiciary Committee.

They merged as H.R.6127, and the procedure in that bill is the procedure that is now in the statute.

It -- they -- that -- those bills from their inception had the so-called fair play rules in them, and in this respect, the Attorney General was called before the Senate, but before the House Judiciary Committee and asked about the Dies Amendment.

And his comment begins on -- on this particular bill that ultimately became law, begins at the bottom page 11 of the reply brief.

The bill he's talking about there is H. R. 627 of 1956 which is unfortunately, left out for the brief.

And again, he says the same thing that he did in the Senate.

That the -- that -- that the Dies rider was more restrictive and that he thought that the members of the Commission would be men of such stature that the Congress would not have to use this as a vehicle for its experimentation.

And the bill came out of Judiciary Committee with the fair play rules in it.

It was the -- so that we had in the House, one bill with the fair play rules in it and we had in the Judiciary Committee of the Senate, the other bill with the Dies rules in it which we have expressly required independent cross-examination.

The House bill passed and -- but not without -- without complaint, because the -- the -- the minority report of the Judiciary Committee complained.

It says, “The rules provided in the bill are inadequate for more than one reason.

First, the House itself in the 84th Session -- that's in 1956, saw fit to --“ I'm reading from the reply brief the bottom of page 12, “saw fit to adopt a set of rules that are more detailed and stricter than those contained in the bill.”

That are protection of the rights of all were provided for more orderly procedure.

The membership of the House wisely imposed its own judgment on that of the Committee.

And then he says if -- the -- the -- the minority report says that we should -- there were complaints of the Dies rider was not included.

And then when it got on the floor, Congressman Keating and Congressman Celler both spoke in support of it.

Their comments are on pages 13 and 14 in the reply brief.

And at the bottom of page 13, you'll see where Congressman Celler says, “The rules of procedure for this Commission are the same as those for the committees of that House.”

And then on page 14 at the top, Congressman Keating says, “Investigations by the Commission will be bound by the rules of procedure, modeled after those applicable congressional committees.”

Then the opponents took up.

And at the bottom of page 15, Congressman Kilday attacked the bill in this fashion.

“The bill provides that witnesses may be accompanied by counsel, for what purpose?

For the purpose of advising them concerning their constitutional rights, that is all.

Even though the Commission or its own counsel develops only a portion of the transaction and that adverse to the witness, his lawyer cannot ask a single question to develop the remainder of the transaction or the -- or the portions favorable to it.”

And then in the Senate, after the House -- the House passed its bill, for these procedures.

And then in the Senate, the Senate took up the House bill instead of its own.

And it -- the bill was then attacked Senator Talmadge on page 18 of the reply brief and in which he -- he said that, “No provision is made for persons adversely affected by testimony taken by the Commission to be present when they are accused or later to confront and cross-examine their accusers.”

And then Senator Stennis on page 19, said, he has no -- speaking of the witness or of the person defamed.

He said, “He has no right of confrontation or cross-examination and his request to subpoenaing witnesses on his behalf falls within the arbitrary discretion of the Commission.”

So, Your Honors, it seemed to the Commission that first of all, the statute told them what to do.

They had to allow a man to have counsel to advise him as to his constitutional rights.

The -- that subdivision of the statute limited the usefulness of counsels so far as Congress required it and that Congress in its debates had indicated that that it thought the Commission was being authorized to proceed -- oh, in the fashion which it now is.

I might say there's nothing in the record of the -- of the passage of this bill to the contrary.

Justice John M. Harlan: May I ask you a question?

Mr. Lawrence E. Walsh: Yes, sir.

Justice John M. Harlan: Suppose one was to agree to your view, Congress intended (Inaudible) and institute this response say, it would be.

Mr. Lawrence E. Walsh: Yes, sir.

Justice John M. Harlan: Do we reach the constitutional question here or do we send back to the District Court to reach it?

Mr. Lawrence E. Walsh: But, Your Honor -- Mr. Justice Harlan, in view of the limited life of this Commission and the fact that it -- although it's had one extension of two years, it's now, well, into that -- those two years.

It would be the hope of the Commission that this Court would -- would reach it here.

Justice John M. Harlan: This is a three-judge court, isn't it?

Mr. Lawrence E. Walsh: It's a three-judge court.

Justice John M. Harlan: And never got to this -- never -- the Court of Appeals doesn't involve that statute.

Mr. Lawrence E. Walsh: The Court of Appeals is -- is not involved in -- in the constitutionality of the statute.

That -- that wasn't raised in the Slawson case.

Justice Charles E. Whittaker: To this judge at least (Voice Overlap) --

Mr. Lawrence E. Walsh: Yes, that's right.

Justice Charles E. Whittaker: And the one which as to 550.

Mr. Lawrence E. Walsh: 550 -- but in 550, there was no challenge to the constitutionality of the statute.

They merely said that the Commission didn't follow the mandate of the statute.

Justice Charles E. Whittaker: As I understand you say that there were three under these rules.

No benefit from the allowance of counsel to the witness, would he not be able to advise him (Inaudible) obtain the question?

Mr. Lawrence E. Walsh: Yes he would, Mr. Justice Whittaker.

As a matter of fact, the Commission practices -- they sit right next to each other and counsel can whisper in the witness' ear while he testifies.

So there's no -- no problem in that regard.

Justice Charles E. Whittaker: A valuable of the lawyer under certain rules, the advisement of his constitutional rights in the part of judge, you say?

Mr. Lawrence E. Walsh: Your -- Your Honor, I think it is.

In fact, I think, Your Honors as -- as you view --

Justice Hugo L. Black: I presume --

Mr. Lawrence E. Walsh: Yes.

Justice Hugo L. Black: -- he's going to get it on the basis of value to be more valuable if his attorney could cross-examine the witnesses then, would it not?

As far as value is concerned.

Mr. Lawrence E. Walsh: Actually, Your Honor I don't -- don't mean to be (Inaudible).

If my -- my guess would be that if cross-examination were allowed here, this survey which the Commission has conducted, would be personalized and would end up in a cat and dog fight about individual registrars instead of --

Justice Hugo L. Black: (Voice Overlap) that might true.

Mr. Lawrence E. Walsh: -- quoting grievances.

Justice Hugo L. Black: The question -- the question I asked you was you testified that the derived value after all you -- have said it to your ear and whisper to you -- you're -- about your right.

Mr. Lawrence E. Walsh: Yes, sir.

Justice Hugo L. Black: It's more valuable, of course, wouldn't it if he had a lawyer there to represent him, cross examine the witness, what is right or wrong.

I don't suppose you deny that.

Mr. Lawrence E. Walsh: Well -- well, Mr. Justice Black, I -- I -- let me say this.

I think there are two sides to it and I -- and if I were -- if I were the registrar's lawyer and I was interested in the registrar, not making an issue or public issue on whether we could have segregation or not.

I think that I would prefer to have the Commission go ahead and take its -- at least the Commission is taking this testimony of -- of 25 witnesses in the morning.

It's just a rapid fire succession of their troubles.

And it's not making findings as to individual registrars and it -- the -- to -- to have a lawyer come into it to cross-examine each of these witnesses, develop the pros and cons as to individual registrars.

I'm not sure that that's the registrar's interest, when this Commission has no interest in prosecuting the registrar.

Justice Hugo L. Black: Well, suppose the registrar thought he needed a lawyer?

Mr. Lawrence E. Walsh: Well --

Justice Hugo L. Black: Maybe he had -- would have a different view.

Mr. Lawrence E. Walsh: He might have a different view.

Justice Hugo L. Black: Assuming that -- all -- all I was asking was, assuming that whether it -- whether he's got a right to one or not, can you deny that ordinary human being in this country would think he's better, if he had a lawyer to sit there and cross examine the witnesses sets up and again.

Mr. Lawrence E. Walsh: Yes, Mr. Justice.

I -- I agree with you that 9 out of 10 would, yes.

Justice Charles E. Whittaker: And you suppose that every person who gain the trust needed by a grand jury and expect to be indicted with the right to go in there with his lawyer and cross examine the witnesses, too?

Mr. Lawrence E. Walsh: There -- I'm sure they would, because there, the -- there's no -- no danger of pinning the limelight on the individual, because it's already pinned on him.

Justice Hugo L. Black: Again -- again I suggest that there's quite a difference, whatever one may decide about this case in a grand jury investigation conducted as his -- his character has been and for the purpose for which it was created, an investigation by a committee from somewhere or a commission.

Mr. Lawrence E. Walsh: Your -- Your Honor I -- I respectfully -- the difference -- I might just address one -- one comment to that for that point that many -- many administrative agencies are in the position to cooperate the same way beside grand juries.

That the -- for example, there -- one of the cases decided by Mr. Justice Minton, when he was on the Seventh Circuit was (Inaudible) against Bair, which was referred to in our brief at page 38 -- excuse me.

Chief Justice Earl Warren: Well, go ahead.

Finish your statement in --

Mr. Lawrence E. Walsh: Thank you.

He -- he -- there the O.P.A. Administrator, through his agent was investigating a -- a misuse of prices by throwing in the customers or the people who -- who bought.

And they came in with their counsel.

And the administrator told counsel to get out.

Told the reporter to get out and he went ahead in private and examined these persons and that was upheld because before any formal action was taken, they would all have their chances to -- to cross examine and be advised by counsel.

So it's not just grand juries or -- or forcing Groban and -- Anonymous against Baker we had to say (Voice Overlap) --

Justice Hugo L. Black: Do we have to rely on Groban?

Mr. Lawrence E. Walsh: Well, I -- I thought maybe I'd satisfy the dissent in Groban, Mr. Justice.

Chief Justice Earl Warren: Yes.

We'll recess now.

Print this transcript Transcript: 

Argument of Walsh

Chief Justice Earl Warren: Number 549, John A. Hannah et al., Appellants, versus Margaret M. Larche et al.

And Number 550, John A. Hannah et al. versus J. A. H. Slawson et al.

Judge Walsh, you may continue your argument.

Mr. Walsh: Mr. Chief Justice, may it please the Court.

I have very little to add.

I would like to correct one statement which I made yesterday in answer to Mr. Justice Black as to the maximum sentence for contempt under this Act.

I overlooked the fact that Section 151, which is on page 66 of the printed record, applies to the entire Act.

That Section is in part 4 which the Department of Justice deals with and I had overlooked that it puts a six-month limit on any sentence for contempt and I should like to correct my statement to that effect.

Justice Hugo L. Black: Page 160?

Mr. Walsh: No.

Page 60 -- page 66, Your Honor.

Justice Hugo L. Black: Thank you.

Mr. Walsh: It's at the bottom of the page -- that can't be.

In the -- in the proviso beginning at line 3 of that Section -- line 4 of that Section.

Chief Justice Earl Warren: What page you say?

Mr. Walsh: Page 66, Your Honor.

Chief Justice Earl Warren: And that -- that's the maximum where he's tried by a jury?

Mr. Walsh: He's tried without a jury, it's less, Your Honor --

Chief Justice Earl Warren: Yes.

Mr. Walsh: 45 days.

Chief Justice Earl Warren: If he -- if tried by a court, the maximum is $300 fine or imprisonment, less than or not to exceed 45 days.

Mr. Walsh: Exactly, Your Honor.

That's right, Mr. Chief Justice.

In addition to that, Your Honor, I simply like to mention very briefly confrontation and prior apprisal, because as I indicated at the beginning, I don't think the facts of this case raise those issues, but I would just -- inasmuch as the court below became concerned with them, I -- I would like to mention them very briefly.

I -- I don't see how confrontation comes in here at all.

The Commission wants to put the witnesses on the stand in public.

And it's the injunction of the court below that prevents it.

The only way confrontation could be an issue would be if the Commission, on secret testimony, issued a defamatory statement about these registrars.

Now, the -- the Commission doesn't want to do that and it's limited in its disclosure.

It's public disclosure of these witnesses and their identities at the hearing by the injunction below.

Justice Potter Stewart: Judge Walsh -- this --

Mr. Walsh: Yes, Mr. --

Justice Potter Stewart: -- this hearing, of course, was never held, was it --

Mr. Walsh: It was --

Justice Potter Stewart: -- because of the injunction?

Mr. Walsh: Exactly.

Justice Potter Stewart: Does the record show of what kind of a hearing is it going to be?

Mr. Walsh: The record shows in the answer in the Slawson case, that most of the -- that many of the complaining witnesses were going to be called.

Justice Potter Stewart: That is those people who had filed written statements to which they've -- they're under oath.

Mr. Walsh: Yes, sir.

And the prototype for the hearing is found in the Civil Rights Commission report on the Alabama hearing which preceded this.

And the way it works was that the -- the complaining witnesses are called in the morning.

In the afternoon, the Commission holds an executive session as to defamatory witnesses.

And after that, the registrars are those who might be expected to explain the problem are called last.

Justice Potter Stewart: Now, at the -- both the opening hearing in the morning and in -- in the executive session in the afternoon, are the -- are these -- are these registrars and other people free to be present with their counsel?

Mr. Walsh: They -- the -- the rules of the Commission, as to the executive session, do not provide for their presence.

It provides that they must be furnished a transcript of what the witness said in the executive session.

Now, in practicality, the Commission is perfectly willing to have them present because it will save time.

They can come there and hear the witness and they can be -- go right on with the public hearing.

So that would be the way the Commission would -- would work as a practical matter.

But if the -- the -- if the registrar insisted on a written transcript, under the rules of the Commission, he'd be entitled to it.

Justice Felix Frankfurter: Mr. Walsh, you've --

Mr. Walsh: Yes, sir.

Justice Felix Frankfurter: -- indicate that.

But would you mind read -- summarizing precisely what the situation under the statute and the implementing rules is regarding the resort to secret -- to executive session, with -- as to the complainant, the kind of witnesses and the complainant in this case were?

The officials and non-officials --

Mr. Walsh: The -- the --

Justice Felix Frankfurter: -- that makes any difference.

Mr. Walsh: All right, sir.

The -- the complainants in this case, as again the report from the Commission enough shows in summary fashion, were -- were not officials.

They were -- they were Negroes who wished to vote.

And the --

Justice Felix Frankfurter: I don't mean -- I don't mean the complainants in these suits?

Mr. Walsh: Oh -- oh, you mean the plaintiffs and these are -- that -- that the 20 -- the -- or 17 in the Larche case, are all registrars.

The six in the Slawson case are all private citizens.

Justice Felix Frankfurter: Now, what is -- what is the situation as to them in regard to the utilization of executive session as to these people?

Mr. Walsh: As to -- these people, they --

Justice Felix Frankfurter: Not what was done or were supposed to be done --

Mr. Walsh: If what -- what -- I --

Justice Felix Frankfurter: -- or the Commission could do.

Mr. Walsh: Under the rules, there's no provision for calling them in executive session.

The rule specified that the executive session is to be used for those who might defame others.

That's the stand of -- of the (Voice Overlap) --

Justice John M. Harlan: (Voice Overlap) one of these complainants wanted a public session (Voice Overlap) --

Mr. Walsh: I don't think the complainant's in a position to compel that.

Justice John M. Harlan: -- of the appelant?

Mr. Walsh: No.

No, Mr. Justice.

The duty of the Commission is to investigate complaints.

There's no right established by the statute of any person to have a public hearing on his complaint.

The method of investigation is left entirely to the Commission.

And in fact, it has only used public hearings, when it has been necessary to compel involuntary testimony or at least in -- in this -- in this matter.

Justice Felix Frankfurter: Well, do I understand beside this (Voice Overlap) --

Mr. Walsh: Yes.

Justice Felix Frankfurter: -- does a -- does a potentially defaming witness, have to say, “I'm going to defame some people?”

Mr. Walsh: No.

Justice Felix Frankfurter: How -- how does this come into --

Mr. Walsh: Oh, oh --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Walsh: Yes.

Well, the complaints are received.

The first thing the Commission does is -- is check the formalities of the statute, if they're under oath.

It then sends into the field.

It's -- well, I'll call in investigators, although they have a -- a better word for it, who go out and interview the complainant.

They interview persons in the community, to find out about the complainant.

One, does he have voting qualifications?

And two, is he a reliable person.

They also interview others in the community to find out whether there's any -- any breath to this complaint.

Is this a chronic problem?

After that preliminary survey, they report back to the Commission and then, it is decided in the light of the statistics that I mentioned earlier and the law of the State, whether this merits further -- further check.

And if it does, there's a further interview of these witnesses, in preparation for the hearing, which will disclose whether their testimony's going to be defamatory or not.

Justice John M. Harlan: Is the Commission -- where a defamatory testimony, so-called, is not involved?

Does it have discretion to have a whole private hearing?

Mr. Walsh: I don't find that in -- in expressly authorized in the statute.

That -- that it may hold a private hearing of its own choice.

The statute speaks -- I guess about 58 --

Justice John M. Harlan: The way I read it was, perhaps this is wrong, that in case of defamatory testimony, it's mandatory to hold an executive session and that it was open apparently, one way or the other, for non-defamatory cases.

Mr. Walsh: Well (Voice Overlap) --

Justice John M. Harlan: I don't know what the practice of the Commission.

Mr. Walsh: The practice of the Commission would -- would not be to hold private hearings, except voluntary hearings.

For example, they -- they did try to find from these registrars in the presence of their counsel, the information which they sought.

Justice John M. Harlan: Well, what I was thinking of was the situation where a complaining witness said, “Well, I don't want to testify in public.

I don't mind giving the Commission information in private, but I don't want to be testifying in public.”

Mr. Walsh: Well, they -- they could certainly take his testimony.

I just didn't know whether that would rise to the dignity of a hearing.

They --

Justice John M. Harlan: Well, I mean that a private session, a private (Voice Overlap) --

Mr. Walsh: They could have -- they could have private session.

Justice John M. Harlan: They'd have authority to do this?

Mr. Walsh: Yes, sir.

And -- and --

Justice John M. Harlan: (Voice Overlap) I assume.

Mr. Walsh: They do.

And the --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Walsh: -- excuse me, Mr. (Voice Overlap) --

Justice Felix Frankfurter: So far the registrar -- so far as a registrar is concerned, he may make accusation against people, which I've come to him to here, say out of the public burdens and what -- and whatever he testifies will always be in public, is that right?

Mr. Walsh: That's right, sir.

And just to -- to finish the -- he will answer to Mr. Justice Harlan's question at the bottom of page 63 as the hearing authority in which it says that, “The Commission -- and -- and if we drop down five lines in Subdivision (f), it says “Hold such hearings and act at such times and places of the Commission or other authorized subcommittee may deem advisable.”

But the -- the rules of procedure speak in terms of a public hearing.

The announcement at the opening of the session of the purpose and all those -- those requirements suggest a public hearing as far as any involuntary appearance is concerned.

Justice Felix Frankfurter: So the real complaint, if I may clearly pursue that -- that real complaint is that these plaintiffs, they're not -- never restricted in having full publicity for whatever they have to say.

They -- their complaint is that the protection of defamation not established, it feels so far as the public is concerned, because they have an access to it, is that right?

I mean --

Mr. Walsh: That the --

Justice Felix Frankfurter: -- the secret -- there's a complaint and then they made the Commission -- the Commission has heard them towards investigated or whatever the name is (Voice Overlap) --

Mr. Walsh: Will screen out --

Justice Felix Frankfurter: -- and so all this is in -- the reason for it is to protect publicity of charges that has not been established.

Mr. Walsh: Yes.

I -- I think I follow the trust.

Now, there is a sifting process and complainants who are non-defamatory, that they feel maybe never brought to light.

And I -- I suppose that that does happen, now, they conclude that a complainant is -- is unreliable, they are no going to put him on the stand and take time with it.

But the -- the plaintiffs in this case, are in no way injured by that.

No one ever knows the complaint was made.

Justice Felix Frankfurter: No (Voice Overlap) --

Mr. Walsh: It was not used.

Justice Felix Frankfurter: The reason for nondisclosure is to protect against charges by the people who make defamatory or invidious charges, is that right?

Mr. Walsh: The reason for nondisclosure is to protect the reputations of independent person from reckless charges, yes, sir.

Chief Justice Earl Warren: Judge Walsh, may I -- may I try to clear my --

Mr. Walsh: Yes, sir.

Chief Justice Earl Warren: -- mind to little on this -- on this procedure at these hearings.

Mr. Walsh: Yes, sir.

Chief Justice Earl Warren: As I understand it, there were a number of complainants that form the basis for this proposed hearing.

Mr. Walsh: Exactly.

Chief Justice Earl Warren: And those were persons who claimed that they had been deprived of the opportunity to vote although they had the qualifications.

Mr. Walsh: Yes, sir.

Chief Justice Earl Warren: After what investigations you outlined to us, there was an affidavit filed, is that correct?

Filed by these people, setting forth the -- the elements of the complaint they made.

Mr. Walsh: The affidavit was the first step that preceded the investigation.

Chief Justice Earl Warren: Yes.

And then -- then the investigation follows?

Now, in addition to that, each of these complainants is called before the Commission to testify.

Mr. Walsh: Only if a public hearing is deemed necessary.

Chief Justice Earl Warren: Well, yes.

Mr. Walsh: That's --

Chief Justice Earl Warren: Well, if -- yes, if there is any -- if there is to be any hearing at all, those people who made those affidavits are all called to testify.

Mr. Walsh: Exactly, sir.

Chief Justice Earl Warren: If that's a result of your investigation and as the result of the affidavit, it appears to the Committee that the charge defames anyone.

The hearing is in executive session?

Mr. Walsh: Yes, sir.

That witness is saved --

Chief Justice Earl Warren: If --

Mr. Walsh: -- until the others have testified.

Yes, sir.

Chief Justice Earl Warren: Yes.

And if in the judgment of the Commission, it does not defame any individual, then he appears in public?

Mr. Walsh: Yes, sir.

Chief Justice Earl Warren: Now, in the event he appears in executive session.

As I understand it, the -- the Commission furnishes the person who is supposedly defamed with a copy, not of the affidavit, but a copy of the testimony the man gives before the Commission?

Mr. Walsh: Yes, sir.

Chief Justice Earl Warren: Then the -- the person defamed or alleges to defamed, is invited to appear as a voluntary witness?

Mr. Walsh: Yes, sir, or file a statement.

Chief Justice Earl Warren: Or file statements, yes.

If he wishes to -- to do neither, then the Commission exercised its own discretion as to whether it will issue a subpoena or not.

Mr. Walsh: It will -- probably, the matters of mechanics have issued the subpoena in advance, as to the registrars, because it needs their records.

Chief Justice Earl Warren: I -- I see.

Mr. Walsh: Yes.(Inaudible) --

Chief Justice Earl Warren: And -- and at the time they appear before the Commission for hearing, they have a copy of the testimony that the so-called complainant gave before the Commission in executive session?

Mr. Walsh: Yes, sir.

Or they were -- they could listen to the testimony in executive session.

Chief Justice Earl Warren: Yes.

They could --

Mr. Walsh: Yes.

Chief Justice Earl Warren: -- could listen to it in executive session.

Mr. Walsh: To save the time of transcription.

Justice Tom C. Clark: In defense?

Mr. Walsh: Yes, sir.

Justice Tom C. Clark: That kind of a statement?

Mr. Walsh: At the time the testimony was taken in executive session.

I don't think this is actually arisen, but I -- that's -- that is the Commission's plan to --

Chief Justice Earl Warren: Is that the rule -- is that in the rule?

Mr. Walsh: It's not in the rules require they're giving him a transcript.

Chief Justice Earl Warren: Yes.

Mr. Walsh: But in lieu thereof, that would be the Commission's plan in hoping to clean this up in one day or two days.

Chief Justice Earl Warren: Oh, yes.

Mr. Walsh: To -- to say the time of transcription by letting the registrar hear the testimony in executive session relating to him.

Chief Justice Earl Warren: Yes.

Now, if may carry this is one or two steps farther, if the -- witness -- and subpoenaed, declines to testify --

Mr. Walsh: Yes, sir.

Chief Justice Earl Warren: Then the matter is certified -- the Attorney General may certify the matter to the District Court?

Mr. Walsh: Yes, sir.

Chief Justice Earl Warren: The District Court may hold a hearing and determine whether or not, he should testify?

Mr. Walsh: Yes, sir.

Chief Justice Earl Warren: If it directs him to testify, he is again called at the hearing and if he refuses to testify, then the manner goes to the District Court again?

Mr. Walsh: For prosecution for defense.

Chief Justice Earl Warren: Yes.

And if convicted, if tried by a jury, the maximum is $500 or $1000 or six months in jail?

Mr. Walsh: Yes, sir.

Chief Justice Earl Warren: If he's tried by the court, the maximum is 45 days in jail or $300?

Mr. Walsh: Exactly, Your Honor.

Chief Justice Earl Warren: Well, I apologize for taking so much for your time --

Mr. Walsh: No, I -- I appreciate --

Chief Justice Earl Warren: -- but I -- I did want to get those steps clear in my mind and they weren't quite clear.

Justice Felix Frankfurter: Do I understand -- did I correctly hear or taken, you said the registrar maybe present while defamatory charges were made against him in executive session.

Mr. Walsh: In executive session.

Justice Felix Frankfurter: That is not -- could not in the rules, but that is the practice.

Mr. Walsh: That -- that is not -- not any rule and I'm not -- I don't -- I think it's an academic question so far in the Commission's existence, but it -- it is there --

Justice Felix Frankfurter: (Voice Overlap) that what, academic in what sense?

Mr. Walsh: That I don't think they have -- they have been in a position where they have had to -- to call him.

I mean they've been -- both had a defamatory witness and the pressure of time that would require them to tender this alternative.

That is their -- their plan of operation under the -- under the circumstances with which -- which posed to me, is -- is a question.

Justice Felix Frankfurter: Well, when you said that as a matter of fact, he could be present, in a manner of speaking, their confrontation except through examination, is it -- it's not in the rules, it -- it is stated in the record, are you in a position to state that is a fixed practice of the Board?

Mr. Walsh: I'm only in the position to state that from what the Board told me, sir.

Justice Felix Frankfurter: Yes.

Mr. Walsh: And it's not in the record.

Justice Felix Frankfurter: Yes.

But that's why, I put alternative.

Mr. Walsh: Yes, sir.

Justice Felix Frankfurter: That is a fixed practice of theirs that you authorized the State here, is that right?

Mr. Walsh: I -- I think -- I'm -- I'm worried about the word practice, because I don't know that has happened it --

Justice Felix Frankfurter: There has been --

Mr. Walsh: -- to a plan or that their plan of operation.

Justice Felix Frankfurter: Anyhow, that's a basis on which they proceed --

Mr. Walsh: Yes.

Justice Felix Frankfurter: -- that's the basis on which they operate.

Mr. Walsh: Yes, sir.

Justice Felix Frankfurter: That's what I'm in for.

Mr. Walsh: The --

Justice Tom C. Clark: That's why they have no jurors (Inaudible)

Mr. Walsh: No.

No, Mr. Justice Clark, I think to -- at times a -- a foolish extent there is a division between the Commission and the Department of Justice.

The Congress was afraid that the Commission would be used as a fact-funneling organization for the department and so we have both bent over backward to stay away from each other and at times I really do think that the administration both of our jobs is -- has suffered as a result.

That we do not advise them, I suppose that they tendered a question to us, we would answer it but so far as I know, they have not.

They have their own --

Justice Felix Frankfurter: They have their own counsel?

Mr. Walsh: They have their own --

Justice Felix Frankfurter: They have their own counsel?

Mr. Walsh: Oh, yes.

And -- and Mr. Tiffany who's their Staff Director is a former Attorney General in New Hemisphere, so he's --

Justice Tom C. Clark: Did they turn the question along the line as Justice Frankfurter asked.Did you guys have to make the subject to be present, when the accuser would seem a challenge?

Mr. Walsh: In the executive session, I would advise them, yes, sir.

Because as I've tried to indicate yesterday, they are trying to -- to rapidly survey a situation, they -- they contemplate calling as many as 50 witnesses in a day or day and a half.

And they tried to -- if there were any number of defamatory witnesses, the idea of transcribing is just going to be a waste of time, and they might just as well hear it.

The thing the Commission wants to avoid is -- is giving complaints out weeks or months in advance, so that the complainants can frankly be -- this subject to -- to actions in between the time of their filing of their complaint and their being called.

And if Your Honors, will turn to page 1 --

Justice John M. Harlan: (Voice Overlap) can I ask you (Voice Overlap) --

Mr. Walsh: Yes, sir.

Justice John M. Harlan: (Inaudible) me about this so-called defamatory witness, I would suppose that any witness who had a complaint that he'd been deprived to his voting rights is of necessity, a defamatory witness.

Mr. Walsh: Well --

Justice John M. Harlan: And therefore, I don't understand what kind of testimony is put on in public hearings.

Mr. Walsh: Your Honor, it -- it doesn't come out quite that -- just to go back to Alabama now, to get away from the complaints in this case.

What happens -- the witness doesn't come in and make a criminal charge as -- as a complaining witness before a magistrate.

He comes in and says “I have an A.B. degree from the college of the City of New York, and I'm a Bachelor of Divinity from some other college and I voted in Arkansas and I voted in California.

And I tried to register to vote here and they said that I didn't fill out the -- the form properly or that I misspelled the word and therefore, I was illiterate.”

Now, that's his testimony.

He's not saying that this is willful.

This is intentional.

He leaves the facts to speak as to whether it's arbitrary and -- and maladministration.

But those witnesses have not been treated by the Commission as defamatory.

If any of the registrars so felt and asked that they'd be called on executive session, they would be -- it would be so done.

Justice John M. Harlan: What is an example of the defamatory statements, that would lead to in examining --

Mr. Walsh: Well, where --

Justice John M. Harlan: (Voice Overlap) --

Mr. Walsh: -- where you get into a situation where one witness of his own knowledge testifies to desperate treatment between a Negro and a white person, where the white person is -- is not tested as to literacy in exactly the same fashion.

That comes a little closer or where the registrar has been offensive in the language which he has used or has indicated that he is not going to register Negro persons or to go away and get lost or something like that.

That I would say comes closer to defamation and it does reach defamation.

Justice John M. Harlan: Well, has the Commission put on public hearings as evidence that Negroes are freely allowed to vote?

Mr. Walsh: They --

Justice John M. Harlan: Or there is only instances were they're not allowed?

Mr. Walsh: They are only -- they only put on --

Justice John M. Harlan: That it alleges to -- that alleges to be not --

Mr. Walsh: Well, they are -- they only develop in -- in public hearing, the situations where they are -- where there are alleged violations.

Justice John M. Harlan: Without assuming therefore, I don't still don't understand the distinction between --

Mr. Walsh: Well, is it --

Justice John M. Harlan: -- defamatory and non-defamatory testimony.

Justice Felix Frankfurter: Your words, if I may --

Mr. Walsh: Yes, sir.

Justice Felix Frankfurter: I mean your word, “pattern,” should light on it.

If there's a pattern of not voting with the ratio of white to colored --

Mr. Walsh: Yes.

Justice Felix Frankfurter: -- from that pattern, deductions may be made, which involves no -- no charge against the particular person or any -- overt misconduct of a particular person, accepting so far to this part of the pattern.

Mr. Walsh: Exact -- Mr. Justice Frankfurter, that -- that says what I've been trying to say for an hour here and I'm -- haven't done very well.

The -- the fact to the matter here is that no one is singling out a registrar as a criminal.

Everyone's approaching this as the registrars are performing a state function, in accordance with their state policy, as they understand it and has it has been explained to them.

The statute itself sets up a subjective test whereby a witness is -- is asked about what any section from the Federal or State Constitution means.

And the registrar is told how to apply that test.

And the registrar is told how to handle misspellings and applications, and how they should not help Negroes fill applications up.

That's told to them not by stray individuals, but by the Chairman and the counsel of a joint legislative committee, which was set up for that purpose.

To oversee the perpetuation of segregation and to see that these things were understood by the registrars on the theory that a rigid enforcement of this law would automatically cutdown Negro registration.

So, I think that the whole picture becomes distorted when we look at these registrars as defendants.

And Your Honors, if I've taken the liberty as I said of lodging the Commission's report with the Clerk of this Court.

There are two chapters, one on Alabama, which is Chapter 5 and one on Louisiana, Chapter 98, and the findings of the Commission at -- at 134.

Now, it shows the -- in retrospect, what the Commission has done.

If there are three registrars mentioned by name, I'm -- I -- I don't remember the third part.

I think, there are two in Alabama who got wrangle over their records and they're mentioned by name.

But in 130 odd pages, on voting, I don't think there be found 130 lines which can be called in anyway, accusatory.

And the accusations are not left to southern States.

New York has singled out for the failure to handle a Puerto Rican problem, many of people who don't speak English.

And the Department of Justice incidentally has mentioned at times, not too favorably.

So there's a -- is a sweeping survey in 130 pages and there's no time taken to get lost in whether or not a registrar did what he or she did dishonestly, stupidly, arbitrarily, or -- or what the reason for it was.

All he did is to get the picture of -- of Negroes trying to register and what they're confronted with as they do so.

Justice Charles E. Whittaker: I suppose that if it's true in the some cases, the line between whether the Constitution maybe or may not be defamatory, could get to define.

Mr. Walsh: Yes, sir.

Justice Charles E. Whittaker: Or it does not -- the Subdivision (e) of Section 102 expressly does the Commission with a discretion to determine whether or not, in their view, it will -- the testimony prove to be defamatory?

Mr. Walsh: In a -- in so many words, it does Mr. Justice Whittaker.

Justice John M. Harlan: Could I ask you how many public hearings have been held by the Commission?

Mr. Walsh: As to voting only -- only one.

And I'm -- I'm not familiar with the number held on housing and education.

Justice John M. Harlan: And how many private hearings (Voice Overlap) --

Mr. Walsh: I -- I don't think -- I think there was -- there was a hearing on voting in -- in New York.

I think there were two on voting, sir.

Justice John M. Harlan: Two.

Mr. Walsh: Private hearings, I -- I don't --

Justice John M. Harlan: Suppose we -- you don't know.

Mr. Walsh: I don't know of any.

I think they just private interviews and there've been no involuntary private hearings.

Justice William J. Brennan: It was a time that having stated the person who (Inaudible).

Mr. Walsh: No.

And not must he asked to be and I don't --

Justice William J. Brennan: Could the rule provide that if asked to be, he shall be heard in (Inaudible)

Mr. Walsh: It does not, Mr. Justice Brennan.

It did -- I'm -- I can see no objection to that and I felt that the Commission would have any, from it they've said that, but actually, the rule does not so provide.

Justice William J. Brennan: Is he entitled to a subpoena or just for witnesses (Voice Overlap) --

Mr. Walsh: He is, in the expressed terms of the rule and the statute.

He's entitled -- he's -- he's entitled to ask the Commission to subpoena witnesses for him.

The Commission has the discretions as to whether it will or will not.

Justice William J. Brennan: Any standards governing that discretion?

Mr. Walsh: The -- if Your Honor, will turn to page 16, Section 102 Subdivision (e) and then Sub-Subdivision (3), it just says, “The Commission shall receive --

Chief Justice Earl Warren: What page is that?

Mr. Walsh: At page 60 of the record, Mr. Chief Justice.

It says, “That the Commission determines that the evidence will tend to defame and so forth and after the executive hearing, it shall afford such person an opportunity (Inaudible) voluntarily to appear as a witness and receive and dispose a request from such person to subpoena additional witnesses.”

And then in the rules of the -- of the Commission -- the rules on page 58 expressly provide for the taking of transcripts in all hearings, that's Subdivision (f), and then in Subdivision (j), it deals with the question of defamatory testimony.

But it does not go beyond the statute in -- in establishing the standard as to the subpoenas.

Your Honor, I think that's all I have to say on the question of apprisal.

I don't want to labor legislative history again, but that was all fought out in the Congress, the Dies amendments provided, in expressed terms, maybe seen in the -- in the next to the last page of our main brief, “That insofar as practical, any person whose activities are the subject of investigation by the Commission or about whom adverse information is proposed to be presented at a public hearing of the Commission, shall be fully advised by the Commission as to the matters into which the Commission proposes to inquire and the adverse material which is proposed to be presented and insofar as practical, these materials to be given to them, that the Dies amendment expressly provided.”

That was in the Dirksen bill.

That was the bill that did not pass.

And when the House bill came over to the Senate, Senator Talmadge and Senator Stennis, both protested with eloquence, about the deletion of this Section.

So, again, I say that the Commission has, in its rules, really gone beyond anything that Congress intended to require of it, as far as apprisal is concerned.

Oh, in the letter I meant to -- to read on page 148 of the record, to show what it is that the Commission appears and the reason for its policy, I think is illustrative.

This is a letter from Mr. Shaw, who represents the plaintiffs in the Slawson case, and also at that time, one of the individual registrars.

We are writing on behalf of Ms. Lannie Linton, Registrar of Voters, Claiborne Parish, Louisiana.

At a meeting in Minden, Louisiana, held on March 12th, 1959, Colonel A. M. Rosenfeld, Chief of the Complaints Division of your Commission, stated that there was on file with your Commission four sworn statements, charging the registrar with depriving citizens of Claiborne Parish, of their voting privilege by reason of color, race, religion, or national origin.

My client knows these sworn allegations to be false, since no such discrimination has been practiced.

Accordingly, she wishes to prefer charges of perjury against the person or parties responsible for these misrepresentations.

Louisiana Revised Statutes, Title 14 Section 123, designate such misrepresentations of perjury, felony under the laws of Louisiana.

Your attention is also invited.

To Louisiana revised statutes Title 14, Section 25, which defines accessory after the fact, as being any person who aids a felon with the intent that he may escape arrest, trial, conviction or punishment.

An accessory after the fact is also guilty of the felony.

We herewith warmly demand that you forward to us copies of the affidavits referred to in order that a proper presentment maybe made to the grand jury.

Colonel Rosenfeld also advised that agents from the Commission had investigated each of the affidavits by personal visit the affiants here in Louisiana.

This means that the crime has been completed in Louisiana.

I need not remind you that proceedings before a grand jury are secret and no affiant need fair reprisals, if he can establish his innocence for the satisfaction of such grand jury.

We shall await your reply and copies of the accusations.

On receiving that letter, the Commission reaffirmed its policy of maintaining secrecy as to its complaints until the actual holding of the executive session.

And that is the fear of such retaliation against these complainants in advance to the hearing.

After the hearing, they'll take the chances, but to have it happen in advance of the hearing is the thing that Commission feared.

Justice William J. Brennan: Before you sit down, Mr. Walsh.

Mr. Walsh: Yes, sir.

Justice William J. Brennan: I gather (Inaudible) that if a person allegedly defamed elects to be heard in his offense on the executive session, there's no right of cross-examination of the adverse witness provided?

Mr. Walsh: No right of independent cross-examination.

Justice William J. Brennan: And yet, I notice that this is applicable at page 270.

That he determines that he'll be heard at a public hearing, but his defense shall be heard in the public hearing.

He does have a right to cross-examination.

Mr. Walsh: The -- this is the -- this is the Dies amendment which was --

Justice William J. Brennan: This is not --

Mr. Walsh: This is not the law.

This is --

Justice William J. Brennan: This is not what --

Mr. Walsh: -- this is what -- what the Senate tried to get into the law and just didn't get in.

Justice William J. Brennan: Well that's right.

Mr. Walsh: Didn't go.

Thank you very much.

Argument of Jack P. F. Gremillion

Mr. Jack P. F. Gremillion: Mr. Chief Justice and may it please the Court.

Chief Justice Earl Warren: Attorney General Gremillion.

Mr. Jack P. F. Gremillion: Pardon me, I -- I apologize.

Mr. Chief Justice and Members of the Court, I -- I want to say that we have two cases for argument today.

One is No. 549, the appellees are all registrars or voters of State of Louisiana, that the Attorney General represents in federal matters, by virtue of an act of the State of Louisiana.

The other case is six individuals who were subpoenaed by compulsory process to attend this proposed hearing.

There is no connection between either one of these particular cases.

I wanted to make that clear.

Although the suits were filed simultaneous, because of necessity, they're completely independent of each other.

They were consolidated for argument before the three-judge court for our convenience and ordered consolidated for argument here for convenience of the Court.

And I wanted to make that particular observation, because there are certain defenses both in equity and law.

And certain constitutional defenses that the registrars or voters claimed they're entirely different from those of the individuals who are in the other lawsuit.

I want to say this, at the outset that we have no quarrel whatsoever, with the Commission's right to investigate.

We have no quarrel whatsoever, with their right to determine facts or patterns.

What we do have quarrel with is the fact that when an administrative agency or fact-finding body, or whatever you call it, turns out to be an accusatory body, that the persons who are under compulsion and who are subpoenaed to testify, have the traditional safeguards which the Sixth Amendment and the Constitution gives to them, and the other amendments give to them.

And that Congress, itself, when it created the Commission on Civil Rights, had no authority to waive those safeguards, unless it was expressly stated in the particular Act.

Now, that is the position that the registrars or voters states.

And I say that regardless of how idealistic and how wonderful the motives of the Commission maybe, and how fast they have to act to determine these particular rights, that that is no excuse to disregard the right of cross-examination, apprisal, confrontation and the traditional safeguards that are so inherent in our justice and in our system of justice.

And that is why this particular suit was filed and the temporary restraining order was sought in the Western District of the State of Louisiana.

And it was because of the absence of those traditional safeguards and the harm that would come to the reputation of these registrars which is something that is basic in our democracy.

Because of that irreparable damage that the Western District gave us a temporary restraining order and placed this case before a three-judge court on the issue of constitutionality, of the creation of the Commission itself.

And let me say herein now, that the order or the judgment of the Western District of Louisiana did not stop the Commission from operating in any respect.

It only said that you cannot subpoena these registrars and force them to testify until you give them the right of cross-examination, apprisal, confrontation, and the traditional safeguards.

All of the other witnesses that the Commission had it in Shreveport could have been heard and we would've had no objection.

In fact, they could have conducted their hearing even with those registrars, if they had complied with the court order and given them the right of cross-examination and the other rights that I'm referring to.

And in this particular argument, I'll refer to them as the traditional safeguards for -- in order to conserve time.

Chief Justice Earl Warren: You --

Mr. Jack P. F. Gremillion: Now, we --

Chief Justice Earl Warren: Mr. Attorney General, putting this side for a moment, the testimony of the -- of the registrars, could they -- could they have had the records -- the public records of the registrar's office.

Mr. Jack P. F. Gremillion: That was a conflict between federal law and the -- this particular act and the Louisiana Act, of which the Commission was well aware from the inception of this controversy.

Chief Justice Earl Warren: What is that controversy?

Mr. Jack P. F. Gremillion: I will come to that, Mr. Chief Justice.

Louisiana law says that records of a registrar or voter can only be inspected by a registered voter of that particular parish.

They maybe copied upon the application of 25 registered voters of the particular parish or photograph and so forth, and failure to comply with that particular statute of Louisiana, results in a criminal penalty.

We advised, Colonel Rosenfeld of the Commission.

We advised Mr. Tiffany of this particular conflict and we asked them that they meet with us in an error of agreement, but they chose to disabort -- they chose to avoid that and to go right ahead and hold their hearing.

And that's what I was coming to as to actually the facts in this case.

Chief Justice Earl Warren: When was --

Mr. Jack P. F. Gremillion: Because --

Chief Justice Earl Warren: -- when was that Act passed?

Mr. Jack P. F. Gremillion: That Act was on the statute -- has been on statutes of Louisiana.

Its absence the Constitution of 1921 and has been passed on by our courts and our Supreme Court on several occasions, as being a law of Louisiana.

Now what -- what I want to come to are the facts in this particular case, because they are very, very important.

Every session of this Court that -- that it is held by the Supreme Court, you are called upon to pass upon these basic human rights, which is so dear to our democracy.

And in each instance, you have gone carefully into the facts and the circumstances to determine whether those rights were violated or not.

Now, the facts in this particular case, I'm not going to go over them because they are contained in my affidavit which is found at page 142 of the record and the subsequent correspondence which is attached thereto.

You will note that in January, Mr. Tiffany came to Louisiana.

We had a very pleasant conference.

I advised him of every act of the State of Louisiana with reference to the registration of voters.

He told me that he saw no particular reason why we should have a disagreement and that they would investigate, and that they had particular complaints that charge these registrars with depriving certain individuals.

And incidentally, I might say this, that I learned more about the proposed hearing that was scheduled to be in Shreveport today than I could ever find out from the Commission or any of its representatives.

I wish that we have had that information in Shreveport.

We may have been better able to have chartered our course and necessarily proceed with judicial dignity for an application for a restraining order but we never had that information much of that today.

Today was the first time that we found out that Negroes were the only complainants.

The -- the subpoena which was served upon these registrars says, that certain persons have been deprived of the right to register and vote by virtue of race, creed or color.

We didn't know whether they were white, black, yellow, red or green.

We didn't know that until today.

And we don't know yet whether they were just on a right to register or whether it may have been for religious reasons or others.

In other words, all of these information was kept away from us.

As a result of our conferences, Mr. Tiffany told me that they would investigate all of these particular complaints and that after this inquiry, after this particular investigation, if they decided to hold a hearing, they would certainly do so.We both met that with our governor during the conference of the National Association of Attorney Generals at which I was host in New Orleans.

We met with our governor.

We decided then that it would be a good idea to have these interrogatories.

Well, naturally, we thought that the interrogatories would be pertinent.

That they would be related to the particular accusations or the complaints that the Commission had received in which they were authorized to receive --

Chief Justice Earl Warren: Interrogatory by whom Mr. (Voice Overlap) --

Mr. Jack P. F. Gremillion: By the Commission to the registrars.

And we received 315 interrogatories which reminds me of a government addition of a (Inaudible) catalog that has all kinds of questions in there that calls for opinions, that calls for matters entirely unrelated to the subject matter of such a fact-finding as the Commission chose to assert.

Many of those questions were certainly incriminating.

It would have been dangerous to answer those particular interrogatories and then have that particular information at a hearing, because slander, incriminatory remarks and -- and other things could have crept into there, which would have violated these registrars' rights.

And besides, and I assure this Court that I was trying to cooperate to the best of my ability, and that I did.

And besides, the conditioned precedent for us -- on the receipt of the interrogatories was that they'd be absent in 10 days.

And number two, that after the receipt of the interrogatories, the Commission would hold a hearing anyway, if in his judgment, it decided to do so.

Yet, counsel would have -- you believe that they were trying not to have a hearing and they want us to answer interrogatories what I say as -- I mean the registrars to answer interrogatories.

And then if they decide the whole hearing, they will continue to do so.

In other words, hold the hearing for what?

Exposure purely for exposure's sake, because the Commission investigates these complaints.

It determines what the facts and the patterns are and they have done exactly that in this particular case, because as a result of these complaints, they have determined the facts and have published to report, which says that I didn't cooperate, which is not so, which accuses Louisiana of bringing a road block, which is not so.

And which even contains slander -- slanderous remarks about the lack of cooperation of Federal Judge Dawkins and the Western District Court.

Of course, that's done.

We can't do anything about that.

But that's an example of what we've been faced with in the handling of these particular facts, and then, in my negotiations with Mr. Tiffany, over whether to answer the interrogatories or not and all that's right in this record.

He says, “Well if you have an objection so stated.”

But then there was a release that came up from the Commission from Washington which said, that the Commission was going to hold a hearing in Louisiana anyway.

So we just took the attitude, well, if you're going to have for hearing, come on let's have the hearing and get it over with.

And as I said before, we had no objection to a hearing.

But a hearing how, according to rules of the Commission, rules which were not authorized by Congress, rules which were adopted in the form of a resolution, and in the midst of all these controversy, the Commission adopted a resolution in Atlanta as follows, “The Commission from his first meeting forward, having considered all complaints submitted to it as confidential, because such confidentiality is essential in carrying out the statutory duties of the Commission.

The Staff Director is hereby instructed not to disclose the names of the complainants or other information contained in the complaints to anyone except the members of the Commission and members of the staff assigned to process study or investigate such complaints.”

I defy anyone in this Courtroom to show me why Congress authorized such a resolution, or such a policy-making part on the part of the Commission, it is not in the Act.

The Act says that they will investigate right here, that they will investigate allegations in writing, under oath or affirmation, that certain citizens are being deprived of the right to vote.

The Commission also adopted rules, the same ones that are in the Act, which we say are not sufficient and which Congress did not have the authority to do because it didn't go far enough.

In other words, Congress committed a “boo-boo.”

Number 3, on page 3 of these rules, “In addition to the statutory of provisions, the Commission has adopted the following supplemented rules or procedure,” and then they go on with quite a few “which gives the Commission discretionary features, which gives them judicial finding features, which gives them adjudicatory features, which gives them the right to subpoena.

And we were talking a minute ago by the testimony in executive session.

You can only get one if the Commission decides to give you one.

That's in the rules and only if you pay the cost of it.

There's no positive statement that the Commission has got to give you one, upon request.

And then they come down and in G, they say, any witness desiring to read the prepared statement has got to submit more than 24 hours.

And then they would decide after.

The Commission will decide, well, if they'll read or not.

Discretion again, policy again, which is not authorized by Congress, the Commission shall decide whether written statements or documents submitted to it shall be placed in the record.

Again, the right to judge, we could've placed all kinds of written statements in there, 100.

And the Commission says well, no, we're not going to put that in there, because we alone reserve the right to determine the facts.

They could take the testimony of one man as against 100 witnesses that we might present.

Now, they might let us present them.

And at the hearing in Shreveport, let me say that it was for one day.

It was a public hearing.

24 witnesses were subpoenaed by the United States Marshal, under compulsory process.

The ballots of the witness were subpoenaed by the Commission's own investigators.

Again, a design of secrecy, again, a stark chamber proceeding, where we had no idea of the charges that we were going -- these registrars we're going to be faced with.

We had no intention what it was about.

We could prepare no defense, even under the rules of the Commission.

So how could we, in all fairness, and with the traditional safeguards, that these registrars are entitled to, who are reputable people, most of them ladies, honest citizens of the State of Louisiana.

And the law has to assume that they are doing their duties, unless it be to the contrary.

And with the benefit of that assumption, and with the benefit of the assumption of innocence until proven guilty.

How could we defend these particular registrars in any sense of fairness or in any sense of justice?

And yet, the Commission says that they want to develop the facts objectively, in order to make a report and to set a pattern.

This record is replete, with cooperation on my part in the Board of Registration.

Where if any registrar was not doing his duty as prescribed under Louisiana statutes, we wanted to know about it, because we would fire them and we would prosecute them.

The people that's on our brief of counsel here, of the District Attorneys to the various districts and these particular parishes, they're honest people.

They wanted to find out the facts too, but every time we turned around, we were met with secrecy.

We were met that authority.

Develop is a result of policy decisions of the Commission, which were not authorized by Congress.

And, of course, this Court has said many times that the denial of a right to cross-examination and to have these particular privileges, the act of Congress creating that administrative agency must to be expressed.

That is in the Administrative Procedure Act, which we say governs the conduct and the affairs of this Commission, because Congress created the Administrative Procedure Act, healed it to eliminate overzealous administrators, such as the Commission here.

Well, what the Commission wants to do, as a practical matter, is say come on down in Louisiana, we're going to be nice and good friends, but what's a little constitutional guarantees among friends?

I can't hold that right.

I've got to protect the registrars.

That's my duty as prescribed by my legislature.

Coming back to these rulings --

Justice John M. Harlan: Supposing the Congress sent down its own subcommittee to Louisiana and it conducted these hearings in the same way, what would've been your position?

Mr. Jack P. F. Gremillion: That would've been -- that's at all because Congress has had authority.

But Congress does not have the authority to give the Executive Committee powers to legislate.

And powers which it cannot do because the separation of powers of it.

But Congress didn't do that though, they chose to proceed in this particular matter.

And that, of course -- and we have no quarrel with that, Mr. Justice Harlan.

We have no quarrel with that.

Justice John M. Harlan: So your point --

Mr. Jack P. F. Gremillion: The only thing that we have quarrel with is the conduct that the Commission, in making this an accusatory body, where these registrars are deprived or allegedly depriving individuals of the right to register and subsequently vote which is a violation of federal law and which is a violation of state law.

And further -- but let me go just little further please, sir.

And further, the rules that they have adopted which were not authorized by Congress or implied by Congress and which rules specifically prohibit cross-examination and which was admitted by the Commission itself.

Justice John M. Harlan: Well, I was just trying to fragmentize the issues here, but I understood it.

You -- if this had been a congressional committee itself and that it acted the same way that you say this committee -- this committee had acted -- this Commission has acted, you say you'd have no grievance.

Mr. Jack P. F. Gremillion: No.

Justice John M. Harlan: Is that right?

Mr. Jack P. F. Gremillion: That's correct.

Justice John M. Harlan: Therefore, your point really is one of unlawful delegation --

Mr. Jack P. F. Gremillion: Correct.

Justice John M. Harlan: -- to this committee.

That's --

Mr. Jack P. F. Gremillion: Correct.

Justice John M. Harlan: That's the -- that's the essence to your position.

Mr. Jack P. F. Gremillion: That is one of my own positions.

And that's absolutely correct and the other position was that Congress had no authority.

It did not authorize this Commission to adopt these particular rules which denied these traditional safeguards that this agency comes under the administration of the Administrative Procedure Act and that the Commission's hands were not tied, as they say they were.

Because the only things that were enjoined from doing were holding a hearing in which these registrars were going to be suspects.

And they could still hold a hearing, if they gave them those particular safeguard.

Now, that's actually the meat of the coconut.

And that's what the facts in this case come to.

And let me show you -- where is this stipulation here, which was filed between the Government and myself, as attorney for the registrars.

On page 169, the Commission on Civil Rights received 67 written allegations prior to February the 27th under oath or affirmation, from certain citizens and so forth, and that they had been deprived of their right to vote because of color, race, religion, and national origin.

And that these were received sometime prior to February 27th, a number of which alleged generally that the plaintiffs in suit.

And that -- that's the appellees here, the registrars through their acts and deeds had caused such deprivation.

Immediately, that makes them suspects.

That accuses them of violating the law.

And then the next allegation in this stipulation that after the Commission received these -- after the Commission on Civil Rights received these complaints, investigators of the Commission was sent to the State of Louisiana and investigated the same.

Now, that is admitted.

There's no doubt about that.

And those facts have to be kept in mind when you -- when you consider the rights that these registrars here assert.

And those facts, takes this case away from Groban and takes it away from Anonymous.

Because in Groban, the -- the Court there was -- that is -- instead that that was a private hearing.

This was to be a public hearing.

In Groban, it was a private hearing which was authorized by an Ohio statute of some 30 years standing, which had declared it to be the public policy of the State of Ohio.

And they were not suspects in Groban.

All the Fire Marshal was trying to do was to investigate causes of fires.

But here, we have investigated the complaints.

And they say that these complaints deprived these people of certain rights to register and it then -- it becomes accusatory.

And -- and I -- I'm not arguing with Groban, I have no -- I have no quarrel with Groban or Anonymous, but I just say that they are not applicable to the particular facts here, because here, they had conducted an investigation as in Groban.

And now, they were, by compulsory process, bringing these registrars to find out from them through their acts and deeds why they deprive these particular individuals of their right to vote which is a violation, as I said before, of federal and state law.

And in Anonymous, and -- and I might say that -- I might say here, that in Groban, this is a distinguishing feature of Groban in -- in my humble opinion.

Mr. Justice Frankfurter and Mr. Justice Harlan said, “If Ohio legislature would directly, explicitly or by obvious design to have secret inquisition of those suspected of arson, we would have a wholly different situation from the one before us.”

This is not a statute directed to the examination of suspects.

The aim of the statute is expeditious and expert ascertainment of the causes of fire.

And in Anonymous, there they were determining not attorneys, they were determining the activities of ambulance chases, under a statute or a policy of the State of New York and Mr. Justice Harlan wrote that opinion.

And, of course, they said, “That as a result of the authority of Groban, as a matter of fact, said Groban is controlling here.”

And the constitutional claims are far less terrible than in Groban, because the proceedings were conducted by an experienced judge.

In other words, Groban and Anonymous have no application here.

Justice Potter Stewart: The issue in which (Voice Overlap) --

Mr. Jack P. F. Gremillion: But -- but Greene versus McElroy is the controlling case.

Justice Potter Stewart: Excuse, Mr. Attorney General.

Mr. Jack P. F. Gremillion: Yes.

Justice Potter Stewart: (Voice Overlap) understanding.

The issue to which you've been addressing yourself, the last few minutes, Groban and Anonymous is the constitutional issue, is that right

Mr. Jack P. F. Gremillion: Yes.

Justice Potter Stewart: Those cases -- those two cases arose under the Due Process Clause of the Fourteenth Amendment?

Mr. Jack P. F. Gremillion: Correct.

That's correct.

Justice Potter Stewart: This case arises in your view under what, the Due Process Clause --

Mr. Jack P. F. Gremillion: Fourteenth --

Justice Potter Stewart: -- of the Fifth Amendment or does it arise under the specific guarantees of the Sixth Amendment?

Mr. Jack P. F. Gremillion: The Fifth, the Sixth and the Fourteenth.

Justice Potter Stewart: Why the Fourteenth?

What state action is involved?

Mr. Jack P. F. Gremillion: What's that?

Justice Potter Stewart: Why the Fourteenth Amendment?

Mr. Jack P. F. Gremillion: Well, the Fourteenth Amendment, because they're denying of due process of law, which is their right to save their name and their reputation and their job.

Justice Potter Stewart: But this is action, is it not by the Federal Government only?

Mr. Jack P. F. Gremillion: Well, I don't follow you.

Justice Potter Stewart: Well, I -- I'm simply asking that you get this argument straightened out.

It seems to me, there are good many or at least there are two basic issues here and I am having a little trouble getting in disentangled from my own mind.

Mr. Jack P. F. Gremillion: Oh, I see.

Justice Potter Stewart: The -- the court below, did not reach the constitutional question, isn't that correct?

Mr. Jack P. F. Gremillion: No.

The court below said it was not necessary to reach the constitutional issue --

Justice Potter Stewart: That's right.

Mr. Jack P. F. Gremillion: -- because they considered the rules of the Commission not authorized by Congress and as such ultra vires and of no effect.

Justice Potter Stewart: They relied that substantially on Greene against McElroy.

Mr. Jack P. F. Gremillion: Correct.

Entirely.

Justice Potter Stewart: Lack of authority.

Mr. Jack P. F. Gremillion: Correct.

Lack of (Voice Overlap) --

Justice Potter Stewart: That -- that this Commission had not been given authority by Congress to -- to adopt the rules and the procedures which it had adopted.

Mr. Jack P. F. Gremillion: That's (Voice Overlap) --

Justice Potter Stewart: That -- that was the basis of their decision.

Mr. Jack P. F. Gremillion: More or less, yes.

Justice Potter Stewart: At least -- and tell me if I'm --

Mr. Jack P. F. Gremillion: Yes, that's correct.

Justice Potter Stewart: -- I'm trying to ask for information.

Now then, you, of course, are -- are asserting that here.

And that's quite a distinct and a separate issue from the issue that we would reach, if we concluded that the court below is a mistaken and that these procedures have been authorized by Congress, isn't that correct?

Then we would reach the Constitution.

Mr. Jack P. F. Gremillion: Oh, yes.

Oh, yes.

Yes, I follow you, now.

Pardon me, I -- I apologize, Mr. Justice Stewart.

Justice Potter Stewart: Well, I -- I broke into your eloquence and I -- if we reach that issue then, is it your contention that the constitutional rights that you be -- assert on behalf of the registrars and the private citizens respectively, are rights which arise under the Due Process Clause of the Fifth Amendment, on the one hand or are they rights which are specifically guaranteed by other provisions of the Constitution, such as the Sixth Amendment?

Mr. Jack P. F. Gremillion: Yes.

Justice Potter Stewart: Which -- or both?

Mr. Jack P. F. Gremillion: Both, the Fifth Amendment and the Sixth Amendment, very much so.

Because you see, it wasn't up to Congress to give these traditional safeguards or guarantees, when it passed the Civil Rights Act.

Those guarantees already existed under the Constitution and Congress could not violate them.

And Congress could not do it, and if it did so, it was unconstitutional.

Justice Charles E. Whittaker: Now, you leave and exceed there, Mr. Gremillion, just following you up to that point, what -- if that's true, then would not the same rule apply to a congressional committee?

Mr. Jack P. F. Gremillion: Well, yes.

But then, a -- they have the authority to legislate.

A congressional committee would have that particular authority to legislate because that is their right as a creature of Congress.

But they cannot delegate that particular authority to an administrative agency set up in the Executive Branch of the Government.

Justice John M. Harlan: Supposing the members of this Commission have been appointed by the Congress, instead of by the President, what would be your position?

Mr. Jack P. F. Gremillion: Well, we would've had entirely different act, now, I'm pretty sure.

I mean -- I -- I --

Justice Felix Frankfurter: Entirely, as in what?

Mr. Jack P. F. Gremillion: We would've had an entirely different act.

I mean (Voice Overlap) --

Justice John M. Harlan: I understand that.

Mr. Jack P. F. Gremillion: We would -- we would have an entirely different act.

Justice John M. Harlan: Congress passed this statute, isn't it?

Mr. Jack P. F. Gremillion: Oh, yes.

But I say that would have been an entirely different situation.

Justice John M. Harlan: Well, your position would've been a different position --

Mr. Jack P. F. Gremillion: Oh, I'm sure that it would have.

Chief Justice Earl Warren: Well, General, you -- I'm concerned about these rights.

You say your clients were deprived of.

Now, if they were constitutional rights, would Congress have anymore right to violate them --

Mr. Jack P. F. Gremillion: Oh no.

Chief Justice Earl Warren: -- than a -- than a creature of -- was it Congress?

Mr. Jack P. F. Gremillion: Absolutely not -- absolutely not.

But I didn't mean to --

Chief Justice Earl Warren: I thought -- I -- I thought --

Mr. Jack P. F. Gremillion: -- I didn't mean to -- I did'nt mean when I was talking (Voice Overlap) --

Chief Justice Earl Warren: No.

Before -- before you got -- Mr. Justice Stewart asked any questions, as I understood you to say, that the -- the constitutional rights of your clients have been violated.

And on the other hand, you said that -- that -- well -- that to be violated.

On the other hand, you said that if Congress had done precisely the same thing that you would not be here.

That it would --

Mr. Jack P. F. Gremillion: No, I didn't --

-- be perfectly all right.

Chief Justice Earl Warren: I -- I didn't mean that, Your Honor.

I -- I didn't mean that.

Chief Justice Earl Warren: Well -- oh, what did you say in that regard?

Mr. Jack P. F. Gremillion: I've -- I said this.

That Congress has the authority to have a committee to investigate those matters with which it has a right to legislate.

And that Congress, any committee of Congress, can no more violate the constitutional rights of individuals than anyone else.

But the situation would be far more different with the congressional committee, because then that congressional committee would have had the opportunity to develop facts, just as the Commission on Civil Rights, with which we have no particular quarrel.

But if it had been a congressional committee, we would certainly have attempted the same relief before the courts that we had -- they have attempted to do the same thing as this Commission, we had -- we would've attempted the same relief in Louisiana courts.

Chief Justice Earl Warren: In other words, if -- if this had been a congressional committee, down in your -- your state, operating as this Commission did, it would be your position --

Mr. Jack P. F. Gremillion: Yes.

Chief Justice Earl Warren: -- that it violated your rights as much as this Commission has?

Mr. Jack P. F. Gremillion: If -- if the Committee had done exactly what the --

Chief Justice Earl Warren: That's --

Mr. Jack P. F. Gremillion: -- Commission had done (Voice Overlap) yes.

Chief Justice Earl Warren: -- that's what I'm talking about.

Well, I totally misunderstood you --

Mr. Jack P. F. Gremillion: I'm very sorry.

Chief Justice Earl Warren: -- a little -- a little while ago.

Mr. Jack P. F. Gremillion: I'm very sorry.

That sort of comes back, as I said, the -- the facts in this case, now, I want to bring out one other thing that's very important here.

There's quite a bit difference between an investigation and a hearing, and a hearing in equity and a trial by law or synonymous.

We're not complaining about the investigation.

The Commission has that right.

As this stipulation and as the fact shows, this investigation has been complete.

Now, a hearing of an adversary nature has come up before an administrative agency.

And we -- yes --

Justice Charles E. Whittaker: (Inaudible)

Mr. Jack P. F. Gremillion: Well, I mean the same thing, Mr. Justice.

I mean that -- that here we have a hearing, which to all extents and proportions, would be a trial.

They have -- they have been accused of violating the law, of depriving these people who say that they are qualified to register and not letting them register.

And they were going to put witnesses on to prove that particular charge.

Justice Charles E. Whittaker: (Inaudible)

Mr. Jack P. F. Gremillion: Before this Commission on Civil Rights.

Justice Charles E. Whittaker: Does this have the power (Inaudible)

Mr. Jack P. F. Gremillion: Oh, yes.

They have the power to decide, because in the -- in the rules -- in -- in the rules, they say “In the discretion of the Commission, witnesses may submit brief and pertinent sworn statements.

The Commission is the sole judge of the pertinency of the testimony and the evidence adduced at its hearing.”

And I might say that even the dissenting judge, Judge Wisdom, who incidentally -- he -- he just dissented on account of the Groban case.

He said, “If Groban's right, I'm right.

If Groban's wrong, Groban's wrong.”

And he overlooked the distinction between the facts here and the distinction which I hope I've made to this particular Court.

Let me read you what Judge Wisdom said on page 264, “A rob in this case comes from the act itself.

It comes from the infra congruity of a legislative commission of inquiry, investigating specific complaints against individuals accused of crimes.”

To my mind, the creation of such a commission is a questionable legislative propriety at best.

It carries grave danger of legislative usurpation (Inaudible).

The investigation of specific violations of law is for grand juries, not legislative commissions.

And on that point, I might add right here, Mr. Justice Black, let me tell you that -- that --

Justice Hugo L. Black: Are you talking about (Voice Overlap) --

Mr. Jack P. F. Gremillion: -- in the grand jury, they only investigate and determine whether a bill of indictment will be presented, which is the same thing that the Commission did, when they investigated these particular complaints.

With all deference to Congress or Commission constituted to investigate a broad problem of national interest has no business holding hearings that must inevitably develop into legislative trials of individuals.

When a subpoenaed witness accused of a crime maybe subjected to trial by exposure, a fact-finding determination and punishment, he should have the same rights of notice, confrontation and cross-examination and all the other hard-earned rights embodied in due process.

That anyone accused of breaking the law is entitled to, when he is tried by a jury before a judge.

That goes on a little further, then since the House “fair play” rules or a step in the proper direction.

That's one of the things that the Government said that they adopted the House “fair play” rules.

We say that that's not sufficient.

The House “fair play” rules are step in the proper direction for congressional committees.

Procedure suitable for Congress, old committees however, or less than adequate for a trial by an autonomous commission to which Congress has delegated its power of inquiry.

Chief Justice Earl Warren: To your knowledge, General, has any -- any congressional committee ever functioned as you proposed that they must --

Mr. Jack P. F. Gremillion: Not to my knowledge.

That --

Chief Justice Earl Warren: You would say then that all of these investigatory procedures of -- of the Congress throughout -- throughout the years, whereas dispiriting out wrongdoing of one kind for another, have violated the -- the constitutional rights of those who -- it is investigating.

Mr. Jack P. F. Gremillion: Yes.

And incidentally, there's a book on that by Mr. Telford Taylor.

It's not in the record I just --

Chief Justice Earl Warren: Yes.

Mr. Jack P. F. Gremillion: -- might mention that when he -- are you familiar with that book and he makes that statement --

Chief Justice Earl Warren: Yes.

Mr. Jack P. F. Gremillion: -- by himself.

It used to be a serious thing, Mr. Justices.

When you have -- a -- an in -- fact-finding group or an investigatory body such as a Commission on Civil Rights that comes forward in zealous nature and assumes prerogatives of the judiciary.

That is why Congress was so careful to pass the Administrative Procedures Act, was to protect individuals and to protect state officials against such a practice.

And, of course, we contend that this Commission makes rules.

We contend that it -- that it adjudicates in its findings, its facts, that it actually performs functions of the judiciary and is subject to the provisions of the Administrative Procedure Act.

I might say this in closing.

Justice Hugo L. Black: May I ask you if your contention boils down to this?

I'm not quite sure enough.

Mr. Jack P. F. Gremillion: How is that?

Justice Hugo L. Black: I -- I'm not quite sure, I understand that the scope of your contention is it substantially this that it all provides for accusations be made by affidavits against registrars.

Accusations were made against registrars --

Mr. Jack P. F. Gremillion: Yes, sir.

Justice Hugo L. Black: -- as shown on page 169.

Mr. Jack P. F. Gremillion: Correct.

Justice Hugo L. Black: The law then authorized its hearing.

The law does not authorize imprisonment or fine by the Commission, but it does -- by the Commission --

Mr. Jack P. F. Gremillion: That's right.

Justice Hugo L. Black: But it does authorize a report on the charges at the hearing of its --

Mr. Jack P. F. Gremillion: That's correct.

And -- and it, itself, is the sole judge of the pertinency of that testimony and so forth.

Justice Hugo L. Black: And so, as your contention -- it is your contention, as I understand, that under such circumstances of an accusation of that kind, whether it'd be in the nature of the preliminary charge or anything else, your people are entitled to be represented to that counsel or cross-examine the witness to be confronted with the witness as against him.

Mr. Jack P. F. Gremillion: And to produce rebuttal testimony.

Justice Hugo L. Black: Is that --

Mr. Jack P. F. Gremillion: That's our --

Justice Hugo L. Black: You're basing it on the constitutional provision to authorize that calls for a testimony, the right to cross-examine, the right to counsel.

Mr. Jack P. F. Gremillion: And the lack of the authority of Congress to expressly provide that this Commission could operate in the manner that it is functional.

Justice Hugo L. Black: Well, I -- I don't suppose you had to say, it was denied that Congress is without power to violate the Constitution.

Their claim is it does not violate those provisions of the Constitution.

Mr. Jack P. F. Gremillion: That's right.

And that's the question that this Court has to decide.

That's the question that it is decided by the lower court.

And the lower court --

Justice Hugo L. Black: The Groban case was decided under the Fourteenth Amendment.

Mr. Jack P. F. Gremillion: Sir, I think that's --

Justice Hugo L. Black: By the rules are not considered the same.

Mr. Jack P. F. Gremillion: That's right.

Justice Hugo L. Black: You're relying on the provision of the Constitution as required by the Federal Government in its action.

Mr. Jack P. F. Gremillion: Correct, correct.

We're relying that the -- the Fifth and Sixth Amendment and in addition to that, the -- the cases, of course, the law, I know is known of this Court, the cases of Watkins versus U.S., Morgan versus U.S., Joint Anti-Fascist Committee versus McGrath, and emphasized and reiterated in the latest expression of this Honorable Court, in Greene versus McElroy.

Justice Hugo L. Black: I haven't quite understood yet why you say Congress did not authorize that to be done.

Mr. Jack P. F. Gremillion: Because --

Justice Hugo L. Black: I now, I understand you're constitutional point.

Mr. Jack P. F. Gremillion: Congress --

Justice Hugo L. Black: So, why do you say Congress did not authorize?

Mr. Jack P. F. Gremillion: Congress provided, when it enacted the Civil Rights Act, to settle rules of procedure, many of which are violated in our opinion of the Fifth and Sixth Amendment.

It --

Justice Hugo L. Black: Which one?

Mr. Jack P. F. Gremillion: It did not -- the --

Justice Hugo L. Black: Which rule -- which particular rule, do you say it goes beyond an action of the Commission with reference to the witnesses --

Mr. Jack P. F. Gremillion: 102 (c)

Justice Hugo L. Black: -- goes beyond the authority Congress granted.

Mr. Jack P. F. Gremillion: 102 (c)

Justice Hugo L. Black: Where is that printed in the record?

Mr. Jack P. F. Gremillion: Oh, just a minute, Mr. Justice.

I had another act.

Justice William J. Brennan: Page 60 --

Mr. Jack P. F. Gremillion: Just a minute, I have in the --

Justice Potter Stewart: Page 60 of the record, I think.

Mr. Jack P. F. Gremillion: 102 (c), “Witnesses maybe accompanied by their own counsel for the purpose of advising them concerning their constitutional rights.”

We say that's not sufficient.

Justice Hugo L. Black: Well, now, wait just a moment.

102 (c), you say that's not sufficient, but why do you say that goes beyond the authority that Congress gave the Commission?

Mr. Jack P. F. Gremillion: Because now, in itself, it -- it may appear to be all right.

But when you consider the facts of this particular case, that here, we have registrars or voters who were accused of a crime.

That then --

Justice Hugo L. Black: I -- I understand those facts.

Mr. Jack P. F. Gremillion: That's right.

Justice Hugo L. Black: What I want to get in, and if I can, is why you say that the Committee went beyond its power in taking -- enacting that rule even though it does deny cross-examine.

Why do you say Congress didn't authorize it?

What was there in the act passed by Congress that leads you to say, this is ultra vires?

Mr. Jack P. F. Gremillion: Well, that's just it, Mr. Justice Black.

There is nothing in the act that authorized the adoption of supplemental rules of the implication of these particular rules.

The act is completely silent.

And Mr. White, when we argued this case in the lower court, admitted that.It's silent either way.

That's the point that I'm trying to make --

Justice Hugo L. Black: You argued --

Mr. Jack P. F. Gremillion: That after -- after this Act was created, the Commission met and then implemented these specific rules with the adoption of other rules.

One of which, in particular, said that interrogation of the witnesses would be only by the -- a member of the Commission's staff or by a member of the Commission.

Mr. Jack P. F. Gremillion: That's specifically denied the right of cross-examination.

Justice Hugo L. Black: They have denied.

Mr. Jack P. F. Gremillion: Absolutely and they admit it.

Justice Hugo L. Black: Are you arguing that because Congress did not expressly state, that they should be denied the right --

Mr. Jack P. F. Gremillion: Yes.

Justice Hugo L. Black: -- to examine with --

Mr. Jack P. F. Gremillion: Yes.

Justice Hugo L. Black: -- that it should not be read into the act?

Mr. Jack P. F. Gremillion: That's correct, because it cannot be read into it by implementation.

It cannot be implied.

It cannot be written into it by implication.

Justice Hugo L. Black: You're arguing that the constitutional question is raised by so doing.

Mr. Jack P. F. Gremillion: Yes.

Justice Hugo L. Black: And that that should not be read into the Act --

Mr. Jack P. F. Gremillion: Correct.

Justice Hugo L. Black: -- for the reason -- is that one of the reasons --

Mr. Jack P. F. Gremillion: Correct.

That is one of my contentions, very much so.

Justice Hugo L. Black: But there's nothing, if you can --

Mr. Jack P. F. Gremillion: And that, of course --

Justice Hugo L. Black: (Voice Overlap) in the Act.

Mr. Jack P. F. Gremillion: And that, of course, is -- was the holding of the Court in Greene versus McElroy.

These particular Boards and Commissions had adopted a security program of their own, which was not authorized by Congress and which was not authorized by the act.

And -- and again, I come back -- you've come to that, I say there's nothing in the Act and you can search it in vain and there is nothing in the Act that gave the Commission that particular power.

And without that particular power, they have no authority to implement or supplement these particular rules.

That -- that was the --

Justice Hugo L. Black: Is there any -- is there any of other Commissions --

Mr. Jack P. F. Gremillion: How is that?

Justice Hugo L. Black: Did you look into the other act creating the other Commission --

Mr. Jack P. F. Gremillion: Well, the only other Commissions --

Justice Hugo L. Black: ICC and others --

Mr. Jack P. F. Gremillion: The only --

Justice Hugo L. Black: The history of -- of what you are discussing here.

Mr. Jack P. F. Gremillion: Well, that comes back, Mr. Justice Black, to what I have said before about the Administrative Procedure Act.

The growth of the administrative agencies is -- is apparent in our history today.

And we have many administrative agencies which perform functions.

And to prevent the violation of individual rights, Congress adopted the Administrative Procedure Act which set a national policy.

And that policy was that the basic traditional safeguards and rights had to be given to an individual before any administrative body --

Justice Hugo L. Black: Now, what provision of the Procedure Act are you referring to now?

Mr. Jack P. F. Gremillion: I'm referring --

Justice Hugo L. Black: You tell that in your brief?

Mr. Jack P. F. Gremillion: Oh, yes.

Justice Hugo L. Black: Quote it.

Mr. Jack P. F. Gremillion: Yes.

It's in the brief.

I'll find it for you in just a second.

It's at page 29, 30, 31, through 34 of our brief.

You see when Congress had --

Justice Hugo L. Black: Now, which one of those particularly are you relying?

Mr. Jack P. F. Gremillion: I'm relying --

Justice Hugo L. Black: Provision -- I'd like to get pinpointed, if I could (Voice Overlap) --

Mr. Jack P. F. Gremillion: Yes, I will, Mr. Justice.

Justice Hugo L. Black: -- understand your arguments, so that --

Mr. Jack P. F. Gremillion: Where is that in the -- in that Act of Mr. Dawson?

It's 5 U.S.C. 101.

Justice Hugo L. Black: 101?

Mr. Jack P. F. Gremillion: 1011 and here -- here's what it says, “No subsequent legislation shall be held -- it's on page 32, “Supersede a modified provisions of this chapter, except to the extent that such legislation shall do so expressly and there is nothing in the Act which expressly exempts this Commission from the applicability of the Administrative Procedure Act.”

I don't have --

Justice Hugo L. Black: (Voice Overlap) provision of the Administrative Procedure --

Mr. Jack P. F. Gremillion: Well --

Justice Hugo L. Black: -- is -- it is that you say is silent.

Mr. Jack P. F. Gremillion: In our brief --

Justice Hugo L. Black: In that provision.

Mr. Jack P. F. Gremillion: In our brief at pages 58, 59 and 60, and 61, it's in appendix in our brief which you will find quotes the provisions of United States Code 5 101 (a) on page 59, 1004, which provides that “Persons entitled to notice of an agency hearing shall be timely informed of the time, place and nature, the legal authority and jurisdiction under which the hearing is to be held.

The matter of facts and law asserted.

In instances in which private persons or the moving parties, other parties to the proceeding, shall give prompt notice of issues controverted in fact the law.

And in other instances, agencies may by rule, require responsive pleadings.

In fixing the time and places of hearing, due regard shall be held for the convenience and necessities of the parties or their representatives.

The agencies shall afford --

Justice Hugo L. Black: (Voice Overlap) of that --

Mr. Jack P. F. Gremillion: The agency (Voice Overlap) --

Justice Hugo L. Black: Examination of witness.

Mr. Jack P. F. Gremillion: The agent -- it -- it says that it -- it gives you that right.

Justice Hugo L. Black: Where?

Mr. Jack P. F. Gremillion: It gives you the right.

The agency shall afford all the interested parties, opportunities for the submission and consideration of facts, arguments, and so forth.

Offers of settlement and so forth and to come specifically, for that were going just -- on page 62, which is 1006 “Hearings, presiding officers, powers and duties, burden of proof, evidence, (b), officers, presiding and hearings shall have the authority subject to the published rules of the agency and within its powers to administer oath and affirmations, issue subpoenas, rule upon office or proof and receive relevant evidence, take a cause, deposition to be taken, regulate the cause of hearing, whole conferences for the settlement, dispose of procedural request of similar matters.”

And then it goes on further.

In (c) says, “Every party, which is on page 63, shall have the right to present this case, our defense, by all the documentary evidence, submit rebuttal evidence to conduct cross-examination as maybe required for full and true disclosure of the facts.”

Justice William J. Brennan: Does that apply only to hearings under section 1003?

Mr. Jack P. F. Gremillion: That applies to all hearings as my --

Justice William J. Brennan: (Voice Overlap) at page 61.

Mr. Jack P. F. Gremillion: Page 59 (a) --

Justice William J. Brennan: Page 61 says, “The hearings -- the Section 1003 or 1004 of these (Inaudible).

Mr. Jack P. F. Gremillion: Yes.

That's -- that's true, but you look at 1004 it says persons -- it says notice of hearings and the issues and so forth and it sets forth on page 59, the type of hearing.

So it covers all of them Your Honor.

Mr. Justice.

Justice Charles E. Whittaker: (Voice Overlap) -- hearing of the adjudicatory matters -- the security to that contemplation?

Mr. Jack P. F. Gremillion: Yes.

We contend that it is, Mr. Justice Whittaker.

Justice Charles E. Whittaker: I just thought at the moment (Inaudible) can the result commission to obtain results that (Inaudible) three, appraise the law on (Inaudible)?

Mr. Jack P. F. Gremillion: That's correct.

Justice Charles E. Whittaker: And that that was all the end result.

Now, what familiar charge --

Mr. Jack P. F. Gremillion: That is true.

But in Morgan versus United States and Greene versus McElroy, they held where an administrative agency became an accusatory body or it actually came into the trial.

Where this evidence showed that these registrars were violating the law and that they did not have the traditional safeguards, they could be prosecuted by the Department of Justice.

They could be prosecuted by Louisiana law.

Justice Charles E. Whittaker: If he's (Inaudible)

Mr. Jack P. F. Gremillion: But --

Justice Charles E. Whittaker: What can this before and for and how Section 104 (Inaudible)

Mr. Jack P. F. Gremillion: Yes.

It --

Justice Charles E. Whittaker: Where --

Mr. Jack P. F. Gremillion: -- it adjudicates on evidence.

It adjudicates on the pertinency of the evidence.

It adjudicates on who will be heard.

It adjudicates of whether you'll be given a copy of the record.

They are numerous places in this particular act where the Commission by its own rules that it adopted, adjudicates and affects the rights of individuals.

There -- there's enumerable instance and we have pointed that out.

It -- it adjudicates in these findings of facts, because it determines what facts it's going to report or not.

It is even suggested in this report legislation, legislation which is presently being considered before a Senate Committee on Capitol Hill, right now.

It has exceeded its authority in that particular fact.

And that's why we keep saying that -- we keep saying that it adjudicates and it subjects to the provisions of the Administrative Procedure Act.

Let me show you on page 101.

Justice Hugo L. Black: (Voice Overlap) --

Mr. Jack P. F. Gremillion: It says, “The testimony which complaining witnesses had been prepared to offer at the Shreveport's hearing, plus the Commission's own field investigations, indicated three major techniques of voting denial.”

Now, if that's not adjudicating.

I don't know what it is.

Chief Justice Earl Warren: General, didn't -- didn't all three of the judges below hold that this Administrative Procedure Act was inapplicable to this situation?

Mr. Jack P. F. Gremillion: Yes.

First Judge Dawkins said that it was, when he issued a temporary restraining order, he said that it -- that it was applicable.

And then later, he changed his mind.

And, of course, we disagree with that because we think that they were under misapprehension of the facts as it applied actually to the Administrative Procedure Act, itself.

But what the court below did, as I'm sure you're well aware, it said that the legislation was appropriate legislation.

It said that the Commission had exceeded its authority and the rules were not authorized by Congress.

And therefore, they were ultra vires, and then on the equities of the thing, that probably natural justice might say that in some hearings that confrontation and cross-examination might not be proper.

But of the hearing that was proposed in Shreveport as developed by the facts and the stipulation that that particular hearing -- in that particular hearing or a type of that kind, under the doctrine of Greene versus McElroy, these registrars were entitled to their traditional safeguards.

Justice Charles E. Whittaker: But General, are you leading to see what is that?

Mr. Jack P. F. Gremillion: [Laughs]

Justice Charles E. Whittaker: Are you saying that (Inaudible) were not authorized by Congress of which (Inaudible) rules of the procedures of the Commission, now that is in the actual Congress.

That's --

Mr. Jack P. F. Gremillion: May I --

Justice Charles E. Whittaker: -- isn't it?

Mr. Jack P. F. Gremillion: -- may I say this, Mr. Justice Whittaker, to clear that point up.

Justice Charles E. Whittaker: Yes.

Mr. Jack P. F. Gremillion: Congress did give them (a) through (f), but then the Commission adopted and supplemented additional rules of its own, with which we --

Justice Charles E. Whittaker: The one you were complaining about was (c) and that's in the 102, which Congress directly authorized in the Act.

I mean not authorize within there.

Mr. Jack P. F. Gremillion: Where is the valid (Voice Overlap) --

Justice Charles E. Whittaker: Well, I don't (Voice Overlap) --

Chief Justice Earl Warren: 16.

Justice Charles E. Whittaker: (Voice Overlap) of the record.

Mr. Jack P. F. Gremillion: Oh, yes, I know that.

I'm looking for the additional rules in the -- the records.

The -- the rules that Congress adopted start on page 57.

In addition to these statutory provisions, the Commission has adopted the following supplemental rules of procedure.

And it enlarged upon (c) and -- and said in -- (i) that “Interrogation of the witnesses shall be conducted only by members of the Commission or by authorized staff personnel.”

They adopted these rules on July the 1st, 1958.

Chief Justice Earl Warren: Well, if --

Justice Charles E. Whittaker: And if I misunderstood you, but I understood you in answer to Mr. Justice Black, saying the complainants of Rule (c) on --

Mr. Jack P. F. Gremillion: Yes.

Justice Charles E. Whittaker: -- page 60.

Mr. Jack P. F. Gremillion: And I said that Rule (c) wasn't sufficient.

That it violated -- that for the Fifth and it violated the Sixth Amendment.

Chief Justice Earl Warren: Well, it is the point of fact?

Mr. Jack P. F. Gremillion: Oh, yes.

I admit that and certainly, I --

Justice Potter Stewart: Well, Mr. Attorney General, what -- what is the significance in Subsection (b) of this Act?

Mr. Jack P. F. Gremillion: Which page is that on -- Mr. --

Justice Potter Stewart: Page (Inaudible) 102 Subsection (b).

Mr. Jack P. F. Gremillion: A copy of the rules shall be made available to the witnesses before the Commission, whether it's self explanatory and they did make a copy of the rules when they said their subpoena.

Justice Potter Stewart: Those facts or does it not, guess the power in the Commission will adopt to --

Mr. Jack P. F. Gremillion: Oh, no.

That -- the only way that you could -- the only way you could say that would be by implication, and we say that's exactly what Greene versus McElroy said.

Justice Tom C. Clark: It didn't have authority (Inaudible)

Mr. Jack P. F. Gremillion: Correct.

Justice Tom C. Clark: That here was given out.

Mr. Jack P. F. Gremillion: Well, they did give him a copy.

Justice Tom C. Clark: (Inaudible) they didn't have a copy.

Mr. Jack P. F. Gremillion: But then Congress specified the rules, Mr. Justice Clark.

It said rules of procedure.

And it says that he will give -- everyone couldn't have a copy of this particular Act.

But when they issued the subpoena, they said you have to have a copy of the rules.

Justice Felix Frankfurter: Are you suggesting they couldn't make rules in addition to what Congress had written out, which would do the very thing which you complained of voluntary as supposed by rules.

Suppose the Commission has promulgated rules in terms to do what you think should be done.

Would you think that offered (Voice Overlap) --

Mr. Jack P. F. Gremillion: In other words -- in other words, it -- it -- what you referred to, Mr. Justice Frankfurter, is this.

That if Congress -- if the Commission would've said, we don't allow attorney to be present at a hearing and if you're going to have cross-examination --

Justice Felix Frankfurter: (Voice Overlap) of your point.

Mr. Jack P. F. Gremillion: And that you're going to rebut -- oh, we wouldn't be here today.

Justice Felix Frankfurter: Well that -- would that be ultra vires if then, they were issued such rules?

Mr. Jack P. F. Gremillion: But they did not do that.

Justice Felix Frankfurter: I know, but I'm asking you whether they would have -- it would have been beyond their power to issue such rules as would satisfy your present claims.

Mr. Jack P. F. Gremillion: But -- yes, but the difference there would be this.

Justice Felix Frankfurter: I know they didn't --

Mr. Jack P. F. Gremillion: That they would be -- they would be granting to us --

Justice Felix Frankfurter: Yes.

Mr. Jack P. F. Gremillion: -- what we claim our traditional safeguards.

Justice Felix Frankfurter: The thing would added to -- but they would be adding to what Congress had written.

Mr. Jack P. F. Gremillion: But they would only be providing the traditional safeguards which are guaranteed by the amendments to the Constitution.

Justice Felix Frankfurter: So, you can't --

Mr. Jack P. F. Gremillion: Something which the registrars were entitled to anyway.

Justice Felix Frankfurter: So you're not arguing or cannot argue, I take it that, they couldn't issue any additional ruling, rules in addition to what Congress had spelled out.

Mr. Jack P. F. Gremillion: They could -- they could say that we're going to meet at 10 o'clock every morning and that so and so will be chairman --

Justice Felix Frankfurter: Well, substantive things, such as you want in this case.

They -- you agreed a minute ago, that only goes there.

But you said they could issue rules to satisfy the claims you're making here for the absence of these claims.

Mr. Jack P. F. Gremillion: I think that they could do that, yes.

I say to do.

Chief Justice Earl Warren: Well, General, didn't the -- didn't the Congress indicate the extent to which counsel should participate in these proceedings in -- in (c) of 102, when it says witnesses at the hearings maybe accompanied by their own counsel for the purpose of advising them concerning their constitutional rights.

Wasn't that --

Mr. Jack P. F. Gremillion: Well, of course --

Chief Justice Earl Warren: -- isn't that -- doesn't that indicate to the Commission the -- the extent to which it didn't expected counsel to participate?

Mr. Jack P. F. Gremillion: Well, Mr. Justice Warren, that disturbs me quite a bit.

I say that it's not sufficient for many reasons.

And I have, in mind, the case of Counselman versus Hitchcock.

For instance -- and -- and then, we come to a discussion of the Fifth Amendment.

Many people, although unwarranted, say that “Where there's smoke, there's fire,” if you refuse to answer a question and denies you the public, you're considered guilty.

But at the same time, Congress didn't grant them the question that -- that if they decided to invoke the Fifth Amendment as to any questions that this Commission would ask, they did not extend the power of immunity.

It maybe that a registrar could have come in and said, “Well, all sure, I've violating the law, but I maybe prosecuted for it, both federal and by state officials.

Can you give me immunity?”

That is absent.

It -- it's really a -- a unique situation.

It honestly is.

It -- it's a very unique situation and that's were the many reasons why I say that (c) does not go far enough, that Congress did not provide the -- the right of or denial of the right of cross-examination merely by saying that, because Congress did not have that authority to waive the Fifth Amendment or the way of the Sixth Amendment.

Justice Hugo L. Black: Do you say they couldn't place -- point their argument?

Mr. Jack P. F. Gremillion: I didn't hear you, Mr. --

Justice Hugo L. Black: Do you claim that -- do you say that they couldn't plead the Fifth Amendment, what was that?

Mr. Jack P. F. Gremillion: Oh, yes.

They could plead the Fifth Amendment, but I say that that is exactly -- when they start pleading the Fifth Amendment that that's when they do harm to their particular reputation.

Because, although completely unwarranted, the public today as a result of many of these particular hearings on television and so forth, take the idea that where there's smoke, there's fire, and that when you plead the Fifth Amendment, they consider it a -- a guilt.

Justice Hugo L. Black: We have a (Inaudible)

Mr. Jack P. F. Gremillion: Oh, yes.

But I'm talking about public or program, if Your Honor please and scar and so forth, which would -- this was the very thing that we were trying to protect because the right to a good name is one of the precious rights that we have to protect.

Justice William J. Brennan: How would it go, if you suggest, the correct and proper (Inaudible)

Mr. Jack P. F. Gremillion: You mean, how would I write a rule?

Justice William J. Brennan: How are the rights to -- how are the rules that you suggest that your clients are telling you to attack the misapprehension on that part of the (Inaudible) that arises to something to the Fourth and Fifth Amendment, probably against self-incrimination.

Mr. Jack P. F. Gremillion: Well, there might not be the necessity for pleading the Fifth Amendment, if we were given the opportunity of presenting witnesses to rebut the particular accusations with which they were charged.

You must bear in mind, Mr. Justice that we have -- we had no idea what was going to be developed at this hearing.

We had no knowledge whatsoever, what the natures of the complaints were or what they were about.

That the hearing was a one-day hearing, 60 witnesses were subpoenaed, 24 were by compulsory process.

The others were kept secret.

Now, I might tell the Court something that had happened just recently in the case that I had in the Federal District Court of Louisiana.

We had an individual who claimed that he was discriminated against because he belonged to a certain particular organization.

It so happened that we had about two weeks of delay in the case during the Thanksgiving holidays and we are not here to investigate that affidavit.

We checked into it and find out that he had worked as a janitor at the bank.

That the bank had fired him because of the fact that he was a poor janitor.

He wasn't doing his work right.

And he claimed that he was discriminated against.

We checked into his employment (Inaudible) we found out that he was working for the State of Louisiana as a janitor.

So when we had the opportunity to find out this information and we had the opportunity to rebut, we were able to disprove those particular accusations such as these registrars were faced here and it's exactly what this Court decided in Peters versus Hobby.

Chief Justice Earl Warren: Mr. Attorney General, as I understood -- as I understood Judge Walsh, before your witnesses took the stand, they were entitled to -- to read or have a copy of the testimony that was taken against them.

Anything that is derogatory of them, they were entitled to (c).

Now, if that is true, how can it be said that when they take the stand, they have no idea of what has been said against them or what they're going to have to protect themselves.

Mr. Jack P. F. Gremillion: Well, Mr. Justice Warren -- Mr. Justice Warren that is not true.

We are not given anything, absolutely not.

There's nothing in the Act that provides that and there's nothing in the rules of the Commission that apprises us of the information and the charges to which these or the manner that these registrars deprive.

And furthermore, let me say this.

That -- that what stirs up practically all of this controversy, here we have a one day hearing.

Suppose we get eight people from Cattle Parish who says that the Registrar in Cattle Parish has denied them the right to vote, let's say, because of a -- a literacy test or a constitutional test or whatever it maybe.

Now, how is that registrar going to determine or how is he going to bring witnesses before that particular hearing.

A one day hearing, how is he going to get the opportunity to bring in rebuttal evidence to prove that those particular witnesses are bearing a malice or a prejudice, or that they are not telling the truth.

That opportunity does not present itself.

But if we would know those things in advance, we would have the opportunity of bringing out a full disclosure of the fact which is the task assigned to the Commission.

Chief Justice Earl Warren: But General, do you -- do you challenge the statement of the Attorney General of the United States that the testimony of witnesses against your clients though it was available to them, before they took the stand.

Mr. Jack P. F. Gremillion: It was -- I challenge that.

It was not available to them before they take the stand and the order --

Justice Potter Stewart: How did you read, Mr. Attorney General -- how do you read Subsection (j) on page 58?

Mr. Jack P. F. Gremillion: “Except as provided in Section 102 and 105, the Chairman shall receive --

Justice Potter Stewart: No, Subsection (j) on page 58, if the Commission --

Mr. Jack P. F. Gremillion: Oh, that's one of the rules that --

Justice Potter Stewart: That's one of the rules --

Mr. Jack P. F. Gremillion: -- they adopted.

Justice Potter Stewart: Yes.

Mr. Jack P. F. Gremillion: “If the Commission determines that the evidence and testimony may tend to defame, degrade or incriminate other person, that shall advise such person of such evidence has been given and it shall afford such person an opportunity to read the pertinent testimony and to appear as voluntary witness or to file a sworn statement in his behalf.”

Well, of course, that's self-explanatory, but were -- never were afforded that particular privilege.

Justice Potter Stewart: Well, there never was a hearing, was there?

Mr. Jack P. F. Gremillion: That's correct.

Justice Potter Stewart: (Voice Overlap) --

Mr. Jack P. F. Gremillion: There never was a hearing.

But -- but the Commission has that right.

It -- the Commission is the one that determines whether it was defamed, not the person that is accused of breaking the law.

The Commission judges that.

That's another thing that we complain of, that they don't have the authority to make that judgment.

In other words, if I think the testimony is going to defame me, I certainly in all fair play in the hearing that's conducted fairly, have the opportunity to bring witnesses in to disapprove it, because it may vanish like bubbles.

And that's particularly true with full testimony.

It -- it's bad enough with document or the evidence, but with oral testimony, it's worse.

And that's what this Court held in Peters versus Hobby.

Justice Tom C. Clark: (Inaudible)

Mr. Jack P. F. Gremillion: But Mr. Justice, coming back, that is idealistic.

It is not factual.

That opportunity wasn't even known or afforded to us.

Do you know when I as -- when the Attorney General of the State of Louisiana was notified officially of the hearing, the letter received in my office was on July the 13th, the very day that the hearing was to be held.

I even attempted to find out for Mr. Tiffany the names of the registrars that were going to be subpoenaed.

And he had Mr. Rosenfeld call my office and there were correct.

There were others -- Mr. Mitchell, the Registrar in Cattle was only subpoenaed on the 9th.

I had to write his name in the complaint that we filed in District Court with a pen.

That's how fast this thing was developing.

As I say, in idealistic -- in ideals and in theory, this is a wonderful piece of legislation and these motives are grant.But in its practical application, it destroys the traditional safeguards that are guaranteed to citizens of the United States.

Justice Tom C. Clark: (Inaudible)

Mr. Jack P. F. Gremillion: No.

Absolutely not, I did not have the opportunity to.

We didn't even know, Mr. Justice Clark, what that nature of the hearing was going to be.

Because these particular rule say, that when the hearing is opened, the Chairman of the Commission will state what the hearing is about.

So how could we prepare for something on a day where witnesses where -- would have to be brought from all over the State of Louisiana, some as far as 200 miles away, how could we prepare or how could we even submit names of witnesses to rebut, when we didn't even know what the hearing was about.

All we knew was that it was going to be on the deprivation of the denial of the right to register and vote by reason of race, color, creed, or religion.

And that's the only thing that we could know.

We -- we had no idea of any individual charges and I might say that there's nothing in this Act that authorize the Commission's rule in Atlanta on April the 14th, it said they're going to keep these things a secret.

They say that they might suffer some economic reprisals.

The court below said that there was no evidence of said economic reprisals and I don't know of any here, absolutely none.

Chief Justice Earl Warren: When was this hearing to be held?

Mr. Jack P. F. Gremillion: July the 13th in Shreveport.

Chief Justice Earl Warren: I see in the record here a letter dated -- Washington D.C., June 11th, 1959, the Honorable Jack P.F. --

Mr. Jack P. F. Gremillion: That's correct.

Chief Justice Earl Warren: -- Gremillion.

Dear General -- dear General Gremillion, This one advised you that the Commission and its official meeting held here yesterday, June 10, 1959, authorized a hearing on Louisiana voting complaints pursuant to Section 105 (f) of the Civil Rights Act of 1957, 71 Stat.637.

The hearing is scheduled to be held on June 13, 1959 in Shreveport, Louisiana.

Sincerely yours, Gordon M. Tiffany, Staff Director.

Mr. Jack P. F. Gremillion: That is correct.

But we did not know at that time what witnesses were going to be subpoenaed or whether or not, any registrars would be subpoenaed.

It may have been that this Commission would have only discussed or heard from the testimony of the sworn complaints.

And we did not know, nor did we have any way of knowing that these particular appellees were going to be called as witnesses by compulsory process, until they were served during the week prior to the date of the scheduled hearing.

And if you will note, Mr. Chief Justice, the -- the letter following was written on July the 8th and they asked me to attend.

And that was the letter that I'm talking about that I received on July the 13th.

And, of course, the Commission was well aware that the Attorney General of Louisiana was the attorney for the registrars, because we had furnished them with the copy of that Act in our early negotiations.

Well, of course, I was in Shreveport because I had instructed these registrars that if they were subpoenaed to please immediately send me a copy of the subpoena and I can assure this Court that I had a busy week.

Justice Hugo L. Black: And if the Government cannot be proceed in this fashion, try to protect the rights of voters, what in your judgment is a way it can't constitutionally proceed?

Mr. Jack P. F. Gremillion: Well, of course, I could really talk for about two hours on that, Mr. Justice Black.

Justice Hugo L. Black: Well, I didn't intended you to talk [Laughs] --

Mr. Jack P. F. Gremillion: We come to --

Justice Hugo L. Black: You, of course, would have no right.

Mr. Jack P. F. Gremillion: We -- we come to -- we come to -- on that issue, we come to the right of States to determine qualifications of these voters.

Now, let me --

Justice Hugo L. Black: I -- I wasn't talking about the legal face of it.

Assuming that Congress has the right, by reason of the amendments, to -- to attempt to protect or the -- the Government has the right to attempt to protect people from being discriminated against in their voting, because of their race, what other methods can you suggest besides this that would be constitutional?

Mr. Jack P. F. Gremillion: Well, we -- we don't quarrel with the right to vote or the right for a person to register.

And I certainly feel and I assert here now that there should be absolutely no discrimination.

Unfortunately, you have disturbances that come up in political questions all over the United States and not necessarily confined to Louisiana.

And of course --

Justice Hugo L. Black: I understand -- I understand that.

Mr. Jack P. F. Gremillion: The -- the --

Justice Hugo L. Black: I'm -- I'm asking the Federal Government -- what method would you say that the Government's views, I presume, you'll say it once?

That it could proceed by indictment before a grand jury.

Mr. Jack P. F. Gremillion: Oh, yes.

It --

Justice Hugo L. Black: You would not have any right there, of course, to be a witness.

Mr. Jack P. F. Gremillion: And that is the way that it should proceed.

After all there has been many grand jury investigations in my own State, on this same particular question.

The registrar or voters in Ouachita Parish was examined by a grand jury on her denial of the right to vote and to discriminate them on an action initiated by the Justice Department.

She was exonerated.

We also had an action that was filed in -- in Monroe, Louisiana also, involving registrars from Madison Parish and from East Carroll Parish on certain allegations to that effect.

Those particular registrars were exonerated.

And, of course, behind this, there is still a remedy for a -- for a registrant who claims that he has been denied the privilege to register, because -- and we have ample laws in my State for the protection of those individuals.

Justice Hugo L. Black: (Voice Overlap) processes.

Mr. Jack P. F. Gremillion: We -- we have a law which says that they can file a suit in a District Court that has got to be tried by summary process, within 48 hours at no cost and that the appeal -- and that there would be no appeal from the judgment of that particular court, so there is ample redress.

There's ample redress through the Department of Justice, the Attorney General and through the State of Louisiana.

And bear in mind, I could ask this Commission time and time again, tell us of wrong doing.

We're just as much interested in as you are and that for registrars who violated the law or discriminated against, we'll see that they're fired.

Justice Hugo L. Black: Is it your judgment that willful deprivation of the right to vote on the count of race by a registrar is a violation of the criminal laws of the United States?

Mr. Jack P. F. Gremillion: Yes.

Justice Hugo L. Black: And that it could be prosecuted in that way?

Mr. Jack P. F. Gremillion: Oh, yes.

Chief Justice Earl Warren: Well, I understand your (Voice Overlap) --

Mr. Jack P. F. Gremillion: I think -- I don't remember the -- the section that Judge Walsh quoted it in his argument yesterday.

Justice Felix Frankfurter: Part of the Civil Rights Act.

Chief Justice Earl Warren: Yes.

Justice Felix Frankfurter: Part of the original Civil Rights Act, part of the legislation of the Senators.

Mr. Jack P. F. Gremillion: Oh, you mean the original --

Chief Justice Earl Warren: Yes.

Mr. Jack P. F. Gremillion: -- civil rights cases, yes.

Chief Justice Earl Warren: But General, I understand from the record that when -- when FBI agents went to the registrars to see the official and public records of -- of the voting that they were refused the right to see them on the grounds that they did not come within this --

Mr. Jack P. F. Gremillion: Correct.

Chief Justice Earl Warren: -- the section of being a citizen of -- of the parish and that they did not have 25 other citizens vouch for them in -- in -- so they could have an opportunity to see the records --1

Mr. Jack P. F. Gremillion: All right.

And my answer to that is, Mr. Chief Justice, that we have a statute in Louisiana that says that a registrar has to produce these records upon order of a competent court.

Now, I wrote a letter which is at -- generally, which is at page 154 to Mr. Campbell of Minden, Louisiana, concerning that particular request.

And I recognized the difference and the conflict between Louisiana law and the particular investigation that the FBI agent was conducting.

And this is what I said.

And this is all then I could say, “In conclusion, it is our opinion that until such time that some proper court holds unconstitutional, the provisions of the revised statutes 1892,” which is the provision I'm talking about, “or unless some court directs to the contrary, it is our opinion that the registrar of voters should adhere strictly to the Louisiana statute,” which they have to do, because if they don't, they again, are violating the law.

Justice Hugo L. Black: Does this injunction restrain the Commission from summoning the papers from the registrar?

Mr. Jack P. F. Gremillion: No.

The only thing it -- the judgment is in the record and it said that they will -- let's look at it.

It's 261 in the record.

No, it's not 261.

No, I'm talking about the judgment of the Court (Inaudible).

Unknown Speaker: 271.

Mr. Jack P. F. Gremillion: 271, “It is ordered, the judge then decreed that the defendants, agents, service and -- servants and attorneys are enjoined and restrained from conducting the proposed hearing in Shreveport, wherein plaintiff registrars accused of depriving others of the right to vote, would be denied the right of apprisal, confrontation and cross-examination.

This injunction does not prohibit all hearings pursuant to public law, so and so,” and it cites the Civil Rights Act, “But only those hearings wherein the accused that denied the right of apprisal, confrontation, and cross-examination.”

That was the judgment of the Court.

Justice Hugo L. Black: Would that restrain them from issuing a subpoena duces tecum?

Mr. Jack P. F. Gremillion: Well, under the Act, if -- naturally, he didn't -- the registrars did not bring their records.

They did not comply.

And we advised them not to.

And under the Act, of course, if they had not complied, then they would have had the -- to go to the Attorney General and get a court order directing them to comply with the subpoena.

And I might say that Judge Dawkins stated in his reasons for the temporary restraining order that if the Civil Rights Commission or the Attorney General had asked him for such an order or -- or to comply with the subpoena that he would not have done it until they were given these rights.

Chief Justice Earl Warren: We'll recess now.

Print this transcript Transcript: 

Argument of W. M. Shaw

Mr. W. M. Shaw: Mr. Chief Justice, may it please the Court.

Chief Justice Earl Warren: You may proceed, Mr. Lassiter.

Mr. W. M. Shaw: Shaw, if it please the Court.

Chief Justice Earl Warren: Oh, Mr. Shaw.

Mr. W. M. Shaw: Our time is --

Chief Justice Earl Warren: Yes.

Mr. W. M. Shaw: -- still run out.

Chief Justice Earl Warren: Yes.

Yes.

Mr. W. M. Shaw: (Voice Overlap) --

Chief Justice Earl Warren: All right.

Mr. W. M. Shaw: I had not intended to and I'm reluctant to go outside of the record in this case, but a statement by the Deputy Attorney General has caused me to feel that I must do so in order to put this case in its proper context and also to defend myself.

I might say that I am the general counsel for the joint legislative committee and was referred to as one who advised registrars to discriminate against Negroes in the -- when they attempted to register the vote.

I might say that that is just not correct and I feel that the Deputy Attorney General was misinformed, he's acting erroneously.

To properly explain what had happened in Louisiana, particularly in connection with voting and let's say this is not directly in the record, but I think the Court needs to know it, to understand what have been going on.

We have laws in Louisiana and have -- have number of other States which require literacy qualifications, also, a certain amount of intelligence qualification.

Those laws, for many years, were not enforced.

The same is true and most of the other States that have those law, they are approximately 15, as I recall.

Several years back, we -- we the members of my committee, in discussion with me, asked me to look into the situation on voter -- voting laws and recommend -- make recommendations to them.

As results of the studies which I have made, we have instituted a program to enforce our laws strictly.

That means to white people and as well as to colored people.

Our efforts have not been successful completely.

We -- there have been cases we know and we have freely admitted that there are many parishes in which the colored people are discriminated against.

Also, there are many parishes in which these laws are enforced uniformly.

And the Court probably can recall the instances which happened last summer in the legislature of our State in which the Governor of our State suffered a mental and moral breakdown.

And that was brought on by his attempt to change our voter qualification laws.

And his reasons for doing so were because we were removing from the roll, many, I think, the term (Inaudible) all white people,” who were the backbones of his -- his political organization.

And our reasoning on doing this, carrying out this program is this, that we have been plagued in Louisiana for many years, like demagoguery and our political opposite.

And we determined that the only way that we could safely protect ourselves against that is by a rigid enforcement of our voter qualification law.

Justice Charles E. Whittaker: What do you mean by the saying that you were removing from those (Inaudible) white people?

Mr. W. M. Shaw: We have removed hundreds, if not thousands.

I say we, not I personally, but people who have consulted with our committee and got an advice, have challenged the legality of the registration of white people in many places.

As a matter fact, it resulted in one lawsuit which will eventually get to this Court in the Parish of St. Landry.

That happens to be one of the French-speaking parishes and there are many illiterate white people in that parish who do not speak or read English.

It's going to the attempt that was made -- started out, I think, they removed several hundred of them, before the registrar just tried to refuse to remove any more because of political exigency at the time.

And I'm saying this in order to remove what I think is an unfair prejudice that surrounds this case.

Our program that we have been enforcing in our State is aimed at improving our Government by enforcing laws which on the book and which have been upheld by this Court in an effect upheld recently in North Carolina when the Court refused certiorari in the case from North Carolina on their literacy qualification.

That is all that I want to say in regard to the background, but if there are any questions, I'd be delighted to answer them because I think haven't got a personal knowledge of what's happened as any person in our State.

Justice Charles E. Whittaker: (Inaudible)

Mr. W. M. Shaw: I'm the general counsel for the Joint Legislative Committee.

I'm also been a special Assistant Attorney General to two successive Attorney Generals, Mr. LeBlanc, who was the previous Attorney General and in certain instances, Mr. Gremillion.

Chief Justice Earl Warren: Is there any reason why those registrars should -- should not have told the Commission exactly what you have told us here today?

Mr. W. M. Shaw: No, there is no reason why they shouldn't.

But of course, the Commission was not interested in that faith and thing.

Chief Justice Earl Warren: How do you know?

They haven't -- they haven't asked anything about it.

Mr. W. M. Shaw: Well, the purpose of the investigations, Mr. Chief Justice, as I understand it, was to investigate certain sworn allegations.

Those sworn complaints had to be if it followed the course of this Act based upon a denial due to race or religion.

And what I'm saying about -- what I've been explaining is that in the instances in which we run into trouble in our own State had been -- when we did not discriminate.

The fact that we did not, it caused us as people in yield in public life had great deal of trouble in our own State.

Chief Justice Earl Warren: Well, that -- wouldn't that have counteracted the -- the affidavits or whatever test (Voice overlap) --

Mr. W. M. Shaw: That is -- it would have been -- certainly would have intended to counteract that and we would --

Chief Justice Earl Warren: Why -- why --

Mr. W. M. Shaw: -- we were looking forward to the opportunity to -- to do.

Chief Justice Earl Warren: Why wouldn't they -- why would they want to testify this such thing?

Mr. W. M. Shaw: I'm sure they would want to testify to that.

Chief Justice Earl Warren: Why didn't they?

Mr. W. M. Shaw: Well, because they were summoned, subpoenaed to appear and testify on certain complaints made against them which they did not know the content.

Now, they -- we have no objection to a hearing, in fact, we welcome the hearing provided we are given the reasonable rights to protect ourselves.

Justice Charles E. Whittaker: That includes such cross-examination?

That's what --

Mr. W. M. Shaw: First of all, we want to know in advance of the hearing what we are charged with, so that we can be prepared to present our side when we go there.

Justice Charles E. Whittaker: Mr. Shaw, are you charged with anything in your concept under this law or is it just an investigation?

Mr. W. M. Shaw: We are charged with Commission of crimes and also, the acts which give rise to damage -- suits for damages because the -- the complaint required by the Act, Mr. Justice Whittaker, is a complaint that you have been discriminated against someone on account of their race, and there is no way that you can discriminate against someone on account of their race, for example, without having an intent to violate these -- these civil rights statutes which the Court is familiar with in which I'll be glad to -- to read to you in my brief at -- the original Civil Rights Act of 1871 which is -- provides statutes 1979 42 U.S.C. 1983 also the conspiracy angle of that.

I might add further that there's another face of that which bears upon what this Commission would have to do, I'd like to read you if the Court ask this -- this section which is Section 6 of the old Civil Rights Act 42 U.S.C. 1986, “Every person who, having knowledge that any of the wrong conspired to be done” and mentioned in Section 1985 of this title, “or about to be committed in having power to prevent or aid in preventing the Commission of the same, neglect or refuses to do so, shall be liable to the party injured or his legal representative for all damages.”

And this Commission investigates and finds that registrars are -- to their satisfaction, that registrars are -- are doing something in violation of this Act, it becomes their duty to assist in the preventing of that and bringing little people to justice under the statutes of the United States.

Chief Justice Earl Warren: To bring them to justice you say?

Mr. W. M. Shaw: Yes, sir.

Chief Justice Earl Warren: What's the language that says that?

Mr. W. M. Shaw: May I read you the -- the sentence, “Every person too had --

Chief Justice Earl Warren: (Voice Overlap) this Commission here, this Commission --

Mr. W. M. Shaw: This applies to anyone.

Chief Justice Earl Warren: All right.

Mr. W. M. Shaw: Now, but -- and this would include this Commission.

It doesn't -- it's not a feature of this Commission's Act, this is a general statute which required anyone knowing about the wrongful conduct in this respect to take steps to prevent it.

Otherwise, they become civilly liable to the party injured for failure to do so.

Chief Justice Earl Warren: Could you mean that if they didn't -- if the Commission knew of these things and didn't do anything --

Mr. W. M. Shaw: Knew that --

Chief Justice Earl Warren: -- the -- the Commission would be liable?

Mr. W. M. Shaw: The individual would be civilly liable.

Chief Justice Earl Warren: The -- the members of the Commission would be liable?

Mr. W. M. Shaw: Right.

In my -- in my construction of this Act which, as far as I knew it, not been construed, it -- it's been practically no jurisprudence with regard to it.

That is 42 U.S.C. 1986.

It was an act to require people to assist federal officers and others who are trying to enforce the old Civil Rights Act.

It's been on the books and carried right down to the history of our country since the civil war.

Justice Felix Frankfurter: You mean of provision which -- there's another provision which specifically authorizes a $5000 suit.

Mr. W. M. Shaw: That is correct.

That is the -- that is the criminal feature of it, Mr. Justice Frankfurter, which is 18 U.S.C. 241.

Justice Felix Frankfurter: I'm talking about civil damage of $5000.

Any -- anybody who is prevented from voting, when he has the right to vote and sued the person responsible for the depravation to the (Voice overlap) --

Mr. W. M. Shaw: I wasn't aware that there was any limit on the amount of liability in that case.

I thought that he could get whatever damages he would -- he could prove.

Justice Felix Frankfurter: I have in mind that -- that Section (Inaudible)

Mr. W. M. Shaw: Would that not be Section --

Justice Felix Frankfurter: Any provision which came before this Court, we have to pass on that, we will do that.

Mr. W. M. Shaw: I believe that's -- preceding Sections 2, it's the old Section of the Civil Rights Act.

Justice Felix Frankfurter: Lane against Wilson, 307.

Mr. W. M. Shaw: There are also criminal faces of this which are found under the 18 U.S.C. the Criminal Code 241.

And therefore, when the complaint has made against a registrar, an individual, here is denying someone their privilege of voting or right of voting, a challenge somewhat the use of the word “right” although it's in our -- or the Fifteenth Amendment in -- elsewhere, when he deny -- when he is charged with denying that particular legal remedy, legal right or privilege because of race or color.

You automatically saying he has done this thing intentionally which the willful feature is automatically included within it, that is, for the intent when you do it on that basis.

Chief Justice Earl Warren: Why do you challenge the word “right”?

Mr. W. M. Shaw: Because the -- because words have different meaning but to me, voting is a privilege.

It's the highest privilege of the citizenship in -- in a representative type of democracy such as we have.

A right --

Chief Justice Earl Warren: If he qualifies, doesn't he have a right?

Mr. W. M. Shaw: Well, if -- if it were a right, it would -- the State could not deny it to anyone.

If it's a privilege, the State can.

Thus, it -- if it's in all States deny for certain people.

All States that I know of have certain age qualifications which in effect deny -- denies voting rights if you wish to call it a theorem.

And also had -- they denied those rights to the people who haven't resided there for a period of time.

The right to set these qualifications by the Constitution is reserved to the States.

Justice Hugo L. Black: I thought it had been held by this Court that under the Fifteenth Amendment, every person has a right not to be denied the right, the (Voice overlap) --

Mr. W. M. Shaw: That is -- that is true -- that is quite true, Your Honor.

That is a right which is different from the so-called right to vote.

You have a right not to be denied that.

Justice Hugo L. Black: On account on race.

Mr. W. M. Shaw: That's right.

That is correct.

But the -- the voting -- the franchise itself is a privilege, as I say it, not a right.

But the -- the protection against having being deprived of it is a right.

Now, to get back to the case itself, which, I think -- the Court has illuminated to a great extent by its question.

But in the 550, these private individuals who I'm representing, we base our case on two things only, the two things that the lower court reached its decision on.

First, that Congress did not authorize explicitly the rules adopted by the Commission which deprive us of confrontation, cross-examination and so forth, our ordinary rights of due process in which we -- what we consider to be hearing of this type.

Justice Hugo L. Black: May ask, it defies you were representing are merely witnesses or -- or are they registrars?

Mr. W. M. Shaw: One was a former registrar, Mr. (Inaudible), who would had service term and was -- and resigned and retired and I'm sure his -- although I don't know it, I'm sure the complaint made against him was probably in his capacity as a registrar prior to his retirement which was six months or so before the hearing.

The others were private individuals, some of whom had challenged voters in certain parishes of the State which were approximately 200 or more miles from the scene of the investigation.

Justice Charles E. Whittaker: (Inaudible)

Mr. W. M. Shaw: No.

We have a statute, Mr. Justice Whittaker, which provide that any two citizens may go into a registrar's office that is who -- are residents and voters of the parish in which they -- they are acting.

And if they find the registration of any person or persons to be illegal, not in accordance with law, they can ensued by affidavit, challenge his right to remain on the roll.

And then the law provides that the person challenged may come back in and bring with him three registered voters from the same parish who make counter affidavit which will automatically keep him on the roll.

Then, if the person's challenging wish to go further, they go to court because that sets up a situation of someone having made false affidavits.

I'm starting to mean it and -- and it also should be referred to the District Attorney or other proper enforcement officers in the parish.

Justice Hugo L. Black: These individuals that you represent who are not registrars?

Mr. W. M. Shaw: No.

They are -- except for one, who was a former registrar.

Justice Charles E. Whittaker: Who was a former.

Mr. W. M. Shaw: Yes.

Justice Charles E. Whittaker: Where charges made against them, affidavit is that (Voice Overlap) --

Mr. W. M. Shaw: According to the information we had, yes.

That they had --

Chief Justice Earl Warren: Does the record show that they were?

Mr. W. M. Shaw: The record does not show that because all we have is statements made to give a time sequence and this is a little more clearly.

What happened was that in the early spring, I believe in March of 1959, Colonel Rosenfeld, the Chief Investigator for the Commission came to Louisiana and conducted certain investigations.

At this investigation, the Attorney General Gremillion was present, I was present and two of the registrars involved in this case were questioned.

We also had conferences open between counsels at the time and Colonel Rosenfeld announced and appears that they had complaints.

He listed a number of complaints from each parish.

He wanted to see certain records.

Mr. Gremillion advised the registrars against, showing them offhand.

But at my request, I think the testimony at this hearing were short.

We agree to give him the records which he wanted to see provided he would show us the complaints or let us see or agree to show as the complaints made against this registrar.

Chief Justice Earl Warren: What right did you have if the law prevents it to say the -- that the Commission could or could not under certain circumstances see the records --

Mr. W. M. Shaw: Well --

Chief Justice Earl Warren: -- if you're -- if you're representing private individuals?

Mr. W. M. Shaw: I'll say -- I'll say this, as a -- as a registered voter of the State, any registered voter of the State has the right to go and see the record.

That's -- they're public record but they are -- the right had given him any rights to vote to the State.

As a register voter of the State, I would agree to go in and get those records out my -- myself, examine and let him examine with me which I think would be permissible under our law.

He himself was notified.

All he had to do is to get a registered voter to do that if he wanted to do it.

He was also notified that he wanted to take photographs of the record.

All he had to do is get 25 registered voters to sign a petition.

Chief Justice Earl Warren: But you would not permit an FBI agent of the United States Government in investigating matters of this kind to see the records.

Mr. W. M. Shaw: It depends on his status.

Of course, if he is a registered voter of the State --

Chief Justice Earl Warren: No -- no he goes just as a -- just --

Mr. W. M. Shaw: If he -- he's a nonresident of the State --

Chief Justice Earl Warren: Yes.

Mr. W. M. Shaw: -- in Washington Parish, that situation rose and he was -- they were permitted to see it.

Now, I dealt with somewhat with the Attorney General on his interpretation of the law.

I think if the registrar has the authority to show him if -- if the registrar, so does I, they don't make any compulsion on the registrar afford to do it.

I recommended to our registrar that the -- our record is perfectly open.

We had no objection to him saying to keep the instances that our sight would registrars and other parishes, registrars whom I do not personally represent.

But --

Justice Felix Frankfurter: Has there been -- has there had been -- no -- no.

Chief Justice Earl Warren: Well, I was going to say, your -- your understanding of the law is then that the registrar has the discretion to show the records to whom he wants.

Mr. W. M. Shaw: I say this.

The registrar must show under any registered voter of the State.

Chief Justice Earl Warren: Yes.

And may show in (Voice Overlap) --

Mr. W. M. Shaw: But may show in anyone else that he wishes -- in my opinion that was the law.

Chief Justice Earl Warren: And may withhold them from anyone -- anyone that he desires to hold that.

Mr. W. M. Shaw: Other than a registered voter of the State.

Chief Justice Earl Warren: Yes, yes.

Mr. W. M. Shaw: And of course, there is so many of those that no real problem.

I mean, if anyone who wanting to see a record, he can get it through one of our -- in any parish of the State, you can find many people who would oppose what the -- somebody's registrars are accused of doing here so that they'd be anxious to -- to go in and show the FBI the record if they want.

So far as Claiborne Parish is concern, I can't speak for that.

I represent the -- our records are open.

Anytime you want to come in, we would be happy to.

We also would like the same privilege with regard to accusations made against us.

Justice Hugo L. Black: What is the total vote in that parish?

Mr. W. M. Shaw: We have around 5000.

Justice Hugo L. Black: How is it divided?

Mr. W. M. Shaw: We have very -- about 30 -- 20 or 30 colored votes and the rest are -- are white and the --

Justice Hugo L. Black: What's the population?

Mr. W. M. Shaw: Population is around 20,000, 25,000 stiff to 2% colored and the -- the question of disparity has come up and it's -- of course, we recognize this disparity.

I'll say this had been more white people, former white people turn down for registration who had been colored.

Chief Justice Earl Warren: If there are 20 -- 20 Negroes registered and the law requires him to have 25 to be able to let someone make a copy of the record, where do you suppose he get the 25?

Mr. W. M. Shaw: Well, the 25 do not have to be from the parish.

But the -- as far as our records are concern, it's been open.

We haven't tried to keep anyone out.

The -- the FBI been around not -- not only -- been -- not only been waiting for them to see our record but I furnish them much of the material which we put out through our Joint Legislative Committee.

I mention to say the Attorney General has in -- in his files, most of our publication and I would certain like the Court to see those because instead of advocating discrimination, we actually advocate the opposite.

Chief Justice Earl Warren: Well, what do you say the percentage of whites and Negroes were?

Mr. W. M. Shaw: 52% colored and 48% white according to the last census.

It changed considerably since then but we are -- what was formerly a very rural area now going almost exclusively to trees.

Planting a pine tree and therefore, we've lost a great many of our colored citizens.

Justice Charles E. Whittaker: Where is the (Inaudible)

Mr. W. M. Shaw: It's in extreme Northern Louisiana, we -- boarder of Arkansas.

Justice Charles E. Whittaker: (Inaudible)

Mr. W. M. Shaw: What is that?

Justice Charles E. Whittaker: Shreveport?

Mr. W. M. Shaw: Yes, across Shreveport.

Justice Charles E. Whittaker: I understand, you lineup to the Arkansas line?

Mr. W. M. Shaw: We lineup to the Arkansas line but east of Shreveport, below El Dorado, if you are familiar where -- that's in the location of El Dorado.

Justice Felix Frankfurter: Mr. Shaw, the availability or accessibility to record, registrar record in Louisiana either by the Commission or anybody acting before them or the FBI on its own, has that gone into litigation?

Is that given rise to litigation?

Mr. W. M. Shaw: Not to my knowledge.

The -- except for this particular litigation which we are now concern.

Justice Felix Frankfurter: It's not in this litigation, isn't it?

Mr. W. M. Shaw: Only in the record.

It was urged as a -- in the -- by the State or rather by the registrars that they were being required to do something illegal.

Justice Felix Frankfurter: But there is no -- the judgment or the complaint of the plaintiffs here do not raise any question of the Government finding counterclaims.

Mr. W. M. Shaw: No.

Justice Felix Frankfurter: And to the production of these records, isn't it?

Mr. W. M. Shaw: I don't really believe there is ever -- encounter any serious --

Justice Felix Frankfurter: I don't know -- I don't know whether they have encounter or not, what I want to know if it's in litigation?

Mr. W. M. Shaw: Not to my knowledge, Mr. Justice.

Chief Justice Earl Warren: Well, the Attorney General who advised all of the registrars, did he not, not to permit the FBI to -- to C & E.

Mr. W. M. Shaw: That's correct.

And I -- as I say, I -- I disagree with him after the -- the interpretation of the law.

I think that he is doing the same thing in that case that we are here accusing the Commission on doing.

Justice Felix Frankfurter: What I want to know is whether that refusal or that advice of the Attorney General had been made the basis of an action by any agency of the Government of the United States?

Mr. W. M. Shaw: Not -- I do not believe so, Mr. Justice -- Mr. Justice Frankfurter.

Justice Hugo L. Black: Perhaps it's not relevant as you started out by saying that you had been making -- changed (Inaudible) to enforce your law with reference to literacy.

Mr. W. M. Shaw: No.

Justice Hugo L. Black: Do you say now there were -- how many voters in your parish are colored?

Mr. W. M. Shaw: 20, I believe, something I --

Justice Hugo L. Black: I mean it wasn't before this new --

Mr. W. M. Shaw: There were approximately 10 or -- well one, nine or none.

Justice Hugo L. Black: Well, I have --

Mr. W. M. Shaw: And so --

Justice Hugo L. Black: -- is this new program that you had changed the number?

Mr. W. M. Shaw: Oh, yes.

They've increased under this program because -- in a matter of fact, we have a system of registration in our State called “permanent registration”.

Once you register, you never have to reregister in -- in many parishes.

It's optional by the parish and we've had it in our parish.

You never have to reregister provided you vote periodically and the registration in our parish prior to the institution of our program with much larger than it is now.

We have first lost population and secondly, there had been a good many people who have failed to exercise their rights, who have been unable to get back on roll when they attempted to try and register.

We say what we are running into is frankly from our standpoint of the program that we have -- is our position, not only from the Federal Government but from the local authorities, people in politics, local, who want to have a full registration as possible without regard to our laws.

But -- but the very point that was raised by Mr. Chief Justice Warren about the Attorney General's opinion, what the Attorney General did in that chase is -- is this.

The law said that -- that you must permit anyone who is a registered voter to see these records.

It does not say you have to keep anyone else from saying.

That's the reason why I say the registrar has the discretion.

In -- in the instant case -- but this -- what the Civil Rights Act did, it said that the Commission had to observe certain rule.

It didn't say they couldn't adopt those rules.

I certainly think that Congress intended for the Commission to adopt supplementary rules.

There are many things that -- that the few rules that they had in the Act did not cover.

Anyone who has conducted investigations or legislative otherwise could see that.

I think it was -- that -- if we consider congressional intent in particular, that intent is set forth in the Administrative Procedure Act.

And the -- and I'm not advocating that we apply the Administrative Procedure Act here except for the purpose of using it as a measure of what the congressional intent is.

Justice Charles E. Whittaker: Mr. Shaw, do you (Inaudible)?

Mr. W. M. Shaw: I say this.

It depends on how you define the term “adjudicatory”, Mr. Justice Whittaker.

If you use the term “adjudicatory” as it's used in the Administrative Procedure Act, then it does have adjudicatory function.

Justice Charles E. Whittaker: (Inaudible)

Mr. W. M. Shaw: Well, the -- let me -- that again is -- the words that you use are somewhat difficult for me to put my finger on.

Justice Charles E. Whittaker: (Inaudible)

Mr. W. M. Shaw: May I read you the definition from the Administrative Procedure Act?

I think it's important because the Administrative Procedure Act uses the term “adjudicatory” as being the measure of when this ordinary function of due process or to be accorded when they are not and what the Commission in effect has done in this case is say the Administrative Procedure Act is not applicable.

Yet, they have adopted the very test that the Administrative Procedure Act gives, but they have used a different definition for the word “adjudicate”.

And the word “adjudicate” as defined by the Administrative Procedure Act, can be found on page 4 of my brief, in Section 2 of the Act 5 U.S.C. 1001, (d) -- Section (d) order and adjudication.

Order means the whole or any part of the final disposition whether affirmative, negative, injunctive or declaratory in form of any agency, in any matter other than rule making but including licensing.

Adjudication means the agency process for the formulation of an order.

Justice Charles E. Whittaker: (Inaudible)

Mr. W. M. Shaw: In the sense that -- that a declaration as an order, yes.

Justice Charles E. Whittaker: Of that provision?

Mr. W. M. Shaw: Yes.

You see, this Act in defining order says order means the whole or any part of the final disposition whether affirmative, negative, injunctive or declaratory.

Justice Charles E. Whittaker: (Inaudible) is injunctive order?

Mr. W. M. Shaw: No.

Justice Charles E. Whittaker: Declaratory order?

Mr. W. M. Shaw: Yes.

Justice Charles E. Whittaker: How?

What --

Mr. W. M. Shaw: By way of a report.

Matter of fact, this Commission is required to make reports not only to Congress, but to the President.

Justice Charles E. Whittaker: Is that a -- is that declaratory (Inaudible)?

Mr. W. M. Shaw: If they make a report which is declaratory in form saying that John Jones had discriminated in -- in Claiborne Parish against a certain registrant, in -- in recommending to the President that he uses executive powers to bring about the prosecution of that part, then I say that that is an order within the meaning of Administrative Procedure Act.

Let me go further, Mr. Justice Whittaker.

The test of due process, as I see it, is not to be bound down by this test of adjudication.

I think due process is a -- is a term that has been defined -- explained by Mr. Justice Frankfurter in the Joint Anti-Fascist Committee cases.

It is a living principle.

It's something that cannot be bound down by any particular formula.

It's something we have to examine each particular case and see whether or not it fits due process.

If you will recall in the Joint Anti-Fascist case, there was no sanction applied.

The Attorney General could not apply any sanctions.

All he did was make a declaration that certain organizations, communist fronts or something of that type.

In the Court itself, this Court pointed out, that there was -- was no sanction involved in the matter except there was a matter of declaring indirectly, indirectly the effect of making that declaration would hurt this particular organization just as indirectly, the effect of a declaration by this Commission would hurt these people who were called before it.

As I read the cases of this Court, the Joint Anti-Fascist case, Peters versus Hobby, in Greene versus McElroy or a series of cases which set forth due process, as I understand it, which must be accorded in administrative hearing and administrative proceedings where agencies of the Federal Government are concern.

And that in each one of those cases, the only question involved was whether or not Congress or the President or the particular creating agency explicitly -- gave the explicit authority to adopt these rules.

I would like to point out to -- to this Court that in the case of Groban and in the case of Anonymous, that question was not even involve.

In case of Groban, we have 1900 statute of Ohio which had been in effect for many years and recognized explicitly giving the authority to do this to the Fire Marshal.

That was not questioned.

Justice Charles E. Whittaker: (Inaudible) to Louisiana.

Mr. W. M. Shaw: I think we have.

In the case of Anonymous, although the statute was not particularly clear on me, there had been many judicial decisions.

And of course, the state court's interpretation of its own law is binding on the federal court.

So the state courts had already found out that this authority was granted to the question of explicit authorization didn't arise, neither one of those cases --

Justice John M. Harlan: Mr. Shaw --

Mr. W. M. Shaw: -- to indicate --

Justice John M. Harlan: Excuse me, go ahead, finish your -- finish your --

Mr. W. M. Shaw: But in the case of the Joint Anti-Fascist Committee, the case of Peters versus Hobby, the case of Greene versus McElroy, that was the only question and that is the only question in which the lower court decided this case.

Justice John M. Harlan: Supposing your complaining witness comes into your office, District Attorney X complain against Mr. X, you take an affidavit from the complaining witness proceed to investigate and you proprietary taking case for the grand jury and the lawyer for the complaining witness comes in -- a lawyer for the perspective defendant comes in, and says “I would like to see all of the papers that you got in your file, Mr. -- Mr. Attorney.”

Would you give it to him?

Mr. W. M. Shaw: We did that in the case of -- in Clinton case which came to this Court.

Justice John M. Harlan: Is that the normal procedure?

Mr. W. M. Shaw: We would have -- right.

But I might say this that the grand jury proceedings are constitutionally based, grand jury proceedings were recognized as the essential function of Anglo-Saxon jurisprudence (Inaudible) was created.

Justice Hugo L. Black: Supposing you proceed by information rather than the grand jury, would that make it (Voice overlap) --

Mr. W. M. Shaw: Well, even that is a -- a long established and well-recognized.

The question of explicit authority doesn't arise in those cases, the -- because that has already been settled by innumerable explicit laws in -- in cases in the past.

And it's historically based -- based in our Constitution as well as in our whole --

Justice William J. Brennan: Isn't you're talking about a broad concept of due process --

Mr. W. M. Shaw: Right.

Justice William J. Brennan: -- that you're relying on therefore, these analogies had some pertinence to it.

Mr. W. M. Shaw: They certainly do.

But I say this it had -- this Commission had been set up in the Constitution of the United States or had it been imported as a legal device from England at the time of the formation of our country.

It would enjoy a different status from an administrative tribunal created by Congress in recent years.

Chief Justice Earl Warren: But hasn't the -- hasn't Congress been doing this since 1890 something?

Mr. W. M. Shaw: Not to my knowledge and I don't know any particular.

They've been doing it at congressional committees but not as executive agencies and in this case, they set up an executive agency and I think that distinguishes this from many of the other cases.

Chief Justice Earl Warren: You -- you feel then that Congress could do this but this Commission cannot?

Mr. W. M. Shaw: I feel that insofar as the question of explicit authority is concern, if this were a congressional committee that would be eliminated.

Chief Justice Earl Warren: How about the constitutional rights you're taking about?

Mr. W. M. Shaw: Constitutional rights as stated by Mr. Justice Burton, if we remove the question of authorization in this case will fairly bristle the constitutional question as I see it.

The lower court didn't find it necessary to go into that --

Chief Justice Earl Warren: But what I --

Mr. W. M. Shaw: -- but in my opinion --

Chief Justice Earl Warren: -- what I was getting at Mr. Shaw is would the same constitutional principle be involved if -- if it was a congressional investigation?

Mr. W. M. Shaw: The constitutional principle of that -- of due process could arise in any case.

But as I say, due process is something that you can't say, “Here it is and it goes this far and no further.”

And you -- you have to consider a congressional committee's investigation in context with everything is going before and -- and everything has not going before the same for administrative tribunal.

And I say that the administrative tribunals -- we've had substantially the same question so for as I can see indistinguishably.

The same questions arise many times, in the cases that I've cited in Peters and Greene and the other cases that had been decided by this Court.

Justice William O. Douglas: As you are saying in substance is this is a sort of a -- under the rules of the Commission, a -- sort of a pretrial proceeding in the criminal case.

Mr. W. M. Shaw: Exactly.

The complaints, as I see it, can't be treated in the other way because they do charge crime.

Justice Charles E. Whittaker: Now, do you know of any (Inaudible) criminal case though it does not result in some kind of an order of binding order or binding above the clause, some kind of an order?

Mr. W. M. Shaw: Well, again, if -- when we speak of order, you're speaking of a -- some kind of sanction, I believe that that's right, some -- some -- either an indictment or --

Justice Charles E. Whittaker: I mean more than just a -- a report.

Mr. W. M. Shaw: What is that?

Justice Charles E. Whittaker: Something more than a mere report?

Mr. W. M. Shaw: Or declaration.

I don't know of any --

Justice Charles E. Whittaker: (Voice Overlap) declaration goes too far for me because that's the judgment maybe very well but it declared by court the declaration of rights.

Mr. W. M. Shaw: Well, I'm -- I'm speaking of declaration not in the -- that sense.

I'm speaking of merely a statement saying that so and so it done so and so.

But if you want to use any words of justice, well, so long as we have the same meaning in that, I say this, insofar as criminal proceedings are concern, I do not know of any preliminary criminal proceeding which if some basis is found for the action, does not result in some such order as you are speaking of.

On the other hand, you've got the case of the Joint Anti-Fascist Committee which was an administrative proceeding which resulted in nothing more that State address -- describing the organizations involved.

And that's exactly what I see would result in this case, a statement describing these individuals and their conduct.

And I think it --

Chief Justice Earl Warren: Mr. Shaw, does your -- when your legislative -- legislature conducts investigations as to illegalities, alleged illegalities and irregularities, does it accord to all witnesses the right you -- you claim for these people here?

Mr. W. M. Shaw: In -- practically, every case that I know of in our legislature, we do not grant the right to -- of subpoena to our -- our committees and they do not follow these particular rights now.

Chief Justice Earl Warren: Do you never -- do you never have the power of subpoena?

Mr. W. M. Shaw: I do not recall any case.I don't say it have not been in them, imagine they have been but in all the instances now had been involved, there are number of hearing, we've never had the right of subpoena.

I think that is a key factor in this whole matter.

That if there were no subpoena powers involved in the question of due process, would take much a different aspect in the case.

The -- that is the key to distinguishing the Norwegian Nitrogen case from which the Government relies from it.

Norwegian Nitrogen case which they say is very similar was to me almost completely dissembled.

First place, if Your Honors will recall in that case, what was involved was a -- a hearing of the Tariff Commission.

A public hearing called by the Tariff Commission in -- to receive evidence voluntarily not on the subpoena from anyone that I could find in which -- on which they would base tariff rates on Nitrate of soda.

Now, the Norwegian Nitrogen people who would be affected by it, appeared in our position to the American Nitrogen people.

And they were given the right of cross-examination and so forth and -- and the only thing that were restricted was certain information bearing upon manufacturing processes of the American Nitrogen people.

And I think if the Court will read that case, you will see the question of subpoena was not involved, the -- really the question of due process is entirely different.

The same thing is true of McGrain versus Daugherty which they have used in that case, the -- the person subpoenaed was a nephew of the Attorney General not the Attorney General himself.

The Attorney General was a person in -- accused.

Here, they are subpoenaing the accused which have been pushed in an entirely different aspect on the case.

Justice Hugo L. Black: What kind of finding does the Commission authorized to make?

Mr. W. M. Shaw: As I read it, they are unlimited in their scope on this matter.

They are --

Justice Charles E. Whittaker: You use the word finding (Inaudible) sense.

Mr. W. M. Shaw: I'm using the word finding in its ordinary sense.

Finding what I would -- it would be a conclusion of some kind, if that was reached.

Read this section --

Justice Charles E. Whittaker: Is the (Inaudible)?

Mr. W. M. Shaw: That is correct.

Shall submit interim report at such time as a -- to the Congress and to the President of that -- of that -- activities, findings and recommendations.

As I say those activities' finding a recommendation can cover practically anything.

My time is limited and --

Justice Hugo L. Black: It covers the finding as to whether or not someone has deprive another the right to vote.

Mr. W. M. Shaw: I certainly think it would.

I think it would.

As a matter of fact, I think the preceding section requires them to almost --

Justice Hugo L. Black: (Voice Overlap) added to it are the words finding and the punishments of the publication by report.

Mr. W. M. Shaw: Well, I think it --

Justice Hugo L. Black: Is that what you're arguing vis-à-vis?

Mr. W. M. Shaw: I'm -- I'm arguing that -- was -- what would be the effect of it.

It can be a -- injury by the -- the order that would result of him being accused of violating the laws and so forth.

Justice Felix Frankfurter: That was joint fascist.

That in effect was joint fascist.

Mr. W. M. Shaw: I'm sorry, I didn't understand.

Justice Felix Frankfurter: I say that was in effect joint fascist just fabrication.

Mr. W. M. Shaw: Exactly.

That's all it was.

Justice Charles E. Whittaker: The joint fascist was a federal question, wasn't it?

You keep -- all of you keep citing Groban.

Mr. W. M. Shaw: That's correct.

Justice Charles E. Whittaker: There's a difference in the Court.

I -- the Court has never agreed that the Fourteenth Amendment made all of the Bill of Rights applicable to the States.

But here, we have to consider this on the basis of the whole Bill of Rights, and that was not true in Groban.

Mr. W. M. Shaw: I would like to say one or two things before I sit down.

First is this that if Congress intended, specifically intended to give the Commission this authority, we've had an entirely different case.

This exact bill is the same bill is up for Congress at this time, right now.

If they wish to give them this authority explicitly, they can do it in as -- almost as sooner the time this Court could do it by judgment.

That authority resides in Congress and they are sitting over there now considering this bill.

If the -- if the Court holds the Commission to the ruling in Greene and these other cases, Congress will be able to -- if they wish to clarify and give them this explicit authority, they will be able to do so.

I think that that is a -- a matter that should be weighed very, very carefully in connection with what we are -- are here discussing.

Another thing --

Justice John M. Harlan: How -- how can Congress do that if their claims are incorrect and unconstitutional?

Mr. W. M. Shaw: What -- what I'm saying that -- that would remove the principal question involved here in this case which is one of explicit authority.

The -- the constitutional basis would also -- but what I believe, I sincerely believe that if this question is presented directly to Congress, Congress will going to make them yield the right of cross-examination and the right of confrontation in -- in notice, make them give it to people that are accused of crimes that are brought before them for an investigation.

Now, I don't think Congress are going give them that.

But -- but I say that the opportunities there, if Congress wishes to do it, they can remove that principle question by an act at this particular time.

Justice Felix Frankfurter: You -- you agree with the Government that this -- the Court should be against you on the ultra vires of the rules promulgated by the Commission and therefore, when reaches -- therefore, when it's up to -- up again that -- in which way you look at it, up to the constitutional issues that this is the place to decide it and not to set aside.

Mr. W. M. Shaw: But I would have to --

Justice Felix Frankfurter: (Voice Overlap) -- on that.

Mr. W. M. Shaw: I would have to demur for this reason, Mr. Justice Frankfurter.

The -- the court below decided the Act itself was constitutional.

They -- they specifically refused to decide whether or not the rules, if not ultra vires, were unconstitutional.

But I think it -- in all -- according to procedure it should go back to them to decide whether or not assuming that the rules not ultra vires, the rules themselves are unconstitutional.

Justice Felix Frankfurter: But I thought they'd already decided that the statute is constitutional?

Mr. W. M. Shaw: They decided that the statute insofar that -- might be considered an improper delegation of -- of a legislative authority to be exactly what's constitutional.

They -- they specifically reserved --

Justice Felix Frankfurter: But not that issue.

What do you say to this -- Judge -- Judge Walsh that -- of course this Court has done both things --

Mr. W. M. Shaw: Yes.

Justice Felix Frankfurter: And if ever that in deciding whether the constitutional question is not yet canvassed by the lower court, it should be dealt with here, it is appropriate to take into account the length of life that this isn't the remaining life of this Commission.

Mr. W. M. Shaw: If it please the Court, I feel this Commission is sort of like a cat.

It has -- has at least nine lives if -- if not more.

Justice Felix Frankfurter: It makes that 18 years, does it?

Mr. W. M. Shaw: The -- the -- that was the same argument that was used in the court below and it was confidently predicted at that time that the Commission's life will be renewed and it was, and it's much easier to create an agency in my experience and is to kill one and I feel like from observation of this Commission go north quite a while.

Justice William J. Brennan: Mr. Shaw, may I ask you if you (Inaudible) the constitutional question, whether here or below, would any of your attack upon (Inaudible) involve an attack on the ground in violation of the Sixth Amendment?

Mr. W. M. Shaw: Only insofar as the Sixth Amendment is incorporated generally in the term due process and that should have to -- to apply to a particular case.

Justice William J. Brennan: (Inaudible) do I gather you're saying that -- that we -- this is not a criminal prosecution?

Mr. W. M. Shaw: Oh, no.

Not --

Justice William J. Brennan: It did not.

Mr. W. M. Shaw: We recognize this is not a criminal prosecution but as I understand due process or -- or the -- it's -- it's something that includes ordinary rights or they're generally considered heritage from the Anglo-Saxon jurisprudence.

Thank you very much.

Argument of Attorney

Attorney: Mr. Chief Justice, the Government --

Attorney: I have no -- no further argument.

Chief Justice Earl Warren: Very well.