JENKINS v. MCKEITHEN

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Argument of J. Minos Simon

Chief Justice Earl Warren: Number 548, Roderick Jenkins versus John Julien McKeithen et al.

Mr. J. Minos Simon: Yes.

Chief Justice Earl Warren: Very well.

Mr. Simons you may proceed with your argument.

Mr. J. Minos Simon: Mr. Chief Justice, may it please the Court.

The case presents for the consideration of the Court, the validity of the state statute enacted by the 1967 legislative session of Louisiana and the issues presented are composed and framed by the pleadings in as much as the lawsuit instituted by the plaintiff was dismissed in connection with a motion to dismiss filed by the defendants in this case.

The decisions relies upon the holding of this Court in the case of Hannah versus Larche which involved an interpretation of the Commission on Civil Rights or the Civil Rights Commission that was enacted by Congress recently and also partly relies upon a decision of the highest court of the State of Louisiana interpreting or given its own interpretation of what this Court held in what is the effect of the particular statute in question.

And that decision was made, rendered in Martone versus Morgan which is before this Court on rehearing.

It's docketed on -- under Number 216 of the 1968 term of the Court.

The plaintiff in substance complains that the Act as a matter of law is unconstitutional and also as administered against him.

The plaintiff alleges that he is a member of a trade union and that the Act in question has been administered discriminatorily against him and members of the union in question resulting in repressive action.

I submit to Your Honors that the Hannah decision did not involve the type of legislation that is involved in the case before you.

And I think perhaps a very quick reference to the essential structure of the Commission that was created by this Act as well as its function we illustrate the point that I am emphasizing at this time.

The Act was passed as an emergency act in the State of Louisiana and apparently resting under the allegation that there were some labor strife in the community of the state capital of Louisiana.

Now, the legislator in the enactment of the statute created what is designated as the Labor Management Commission of Inquiry.

Significantly, this agency or this Commission operates in an ad hoc basis.

It operates only when the Governor of the State demands or request that it operates and it investigates only in that area outlined and delineated by the Governor himself in requesting the investigation.

It's significant to point out that all of the officials of the State Governor from the top to the very bottom, every employee, every agency, every department, every commission are impressed to do cooperative service with the members of this Commission by virtue of the provisions of Section 880.6 sub-paragraph (d).

I should like to also emphasize that the investigative forces of the Commission can be assigned to the state police and during that assignment, they have all the powers of state police.

The Commission itself has endowed itself or has been endowed with plenary powers of subpoena.

It could take depositions anywhere in the United States and also it may compel obedience to its orders through the process of contempt proceedings.

Equally significant is a fact that this Commission expressly does not have any power or authority or jurisdiction to investigate the whole hearings or seek to ascertain the facts or make any reports or recommendations as to any of the strictly civil aspect of any labor problem or dispute.

It is limited exclusively to the -- to investigating and determining the existence of any criminal law violations both of the state and the federal laws that may occur in the area of labor management relations.

Not only this, but it must conduct public hearings as to any such inquiry.

It can conduct or hold executive sessions but then only on the request of one commission member who in his opinion may feel that there may be a defamatory content or incriminatory content to the investigation.

However, it has full powers I stated to bring all witnesses before it, to interrogate these witnesses as to the existence of any crime whether they are of federal or state origin.

These hearings must be public and furthermore, it is charged with the responsibility of making findings and these findings relate to the existence of or probable existence of criminal law violations and also to pronouncing official judgment when individuals who may be involved in the criminal law violation in question relating to labor management offense.

Not only is this Commission under the mandatory duty of making these public findings but in addition to that, this Commission is under the mandatory duty of publicizing these findings.

So that and then furthermore, after it has conducted these public hearings, after they had made these public findings and after there's publicize these public findings, it then becomes its mandatory duty to report its findings and recommendations to “proper federal and state authorities charged of the responsibility for prosecution of criminal offenses."

I submit Your Honors that this piece of legislation establishes a public body that has: one, an accusatory function; two, that it must make and it can make official or pronounced official judgments on individual and that it must publicized both the findings as to the existence or probable existence of criminal conduct and as to the individuals who may be involved and that furthermore, that this is the part of a criminal process.

Now, essentially, it is an inquiry and to blame workers if the authorities or the authorities charged of the responsibility of instituting criminal proceedings themselves should not decide to do so.

The Commission has the authority to direct the chairman to proceed directly with the filing of such criminal charges both of the federal and the state authority.

And also the Commission may request to the Governor, request the Attorney General to utilize all the powers of its office in the supervision of all the district attorney throughout the state to carry out the recommendations and the findings made by --

Justice Byron R. White: But I take it in the long run, as far as filing of charges is concerned that the action of the Commission is only a recommendation and they can't themselves effectively file a -- they can file a complaint with the law enforcement officer I suppose like any citizen can but they can officially launch a criminal action.

Mr. J. Minos Simon: The case is not in the technical sense of the word.

Justice Byron R. White: You mean the law enforcement officer still has to make his decisions whether actually to file a charge than is it to the criminal proceeding?

Mr. J. Minos Simon: That's correct Your Honor.

Of course, my position is by then that's somewhat in anticlimactic because the individual involved has already been found guilty by the Commission and his guilt it was preceded by a public hearing where --

Justice Byron R. White: Well, the Commission has arrived that it's opinion of the matter I take it but it certainly doesn't bind the law enforcement official I take it.

Mr. J. Minos Simon: I'm sure it doesn't bind the law enforcement official technically.

Justice Byron R. White: It doesn't even bind him to file a charge.

Mr. J. Minos Simon: It doesn't even bind him to file a charge but I'm sure that in the ordinary affairs of public government where that same district attorney by virtue of the provisions of the statute himself is impressed cooperatively as a member of this Commission.

In other words, he must cooperate with his commission.

Every state or officer, every employee of the State of Louisiana are impressed cooperatively into service with this Commission.

Justice Byron R. White: Does Louisiana use a grand jury?

Mr. J. Minos Simon: Yes, sir, Louisiana does.

Justice Byron R. White: I suppose there are some crimes that require an indictment by a grand jury?

Mr. J. Minos Simon: Murder is one of them.

Capital offenses require that otherwise, the district attorney may file charges involving anything short of capital offenses.

Justice Byron R. White: Well, I suppose then that the grand jury might reject indicting someone even though the Commission had recommended it.

Mr. J. Minos Simon: I'm sure that's a possibility, Your Honor.

But as a practical matter, with all of the prior publicity with the public condemnation that attaches to the individual and to the crime involved --

Justice Byron R. White: Do you suggest that as a practical matter, no prosecutor could afford to reject one of these recommendations in so far as filing the complaints?

Mr. J. Minos Simon: It would be my judgment but it would be hazardous position for him to assume.

He would have to be very courageous, independent-minded public prosecutor to resist and repel the force that would be generated by all these prior publicity because this is an open hearing.

While the Commission may conduct executive hearings, it cannot refer to that or use that evidence as part of its findings unless all that evidence heard in executive hearing is heard anew in a public hearing, and of course during these public hearings, you have the television people, they are with their cameras writing their way and publicizing all that is going on before the Commission.

And furthermore, there are no effective rules of evidence, of meaningful rules of evidence.

The Commission hears anything, hearsay evidence, opinion evidence, innuendos, just anything it chooses to hear it hears because there's nothing to regulate the scope and the character of the evidence which it brought forth.

Justice John M. Harlan: (Inaudible)

Mr. J. Minos Simon: Not -- no sir, he wasn't summoned.

The companion party in this litigation was in the lower court if Your Honor please.

I'm sorry, Your Honor.

Mr. Jenkins' interest is number one, that he is a member of the labor union which has been singled out by the officials who have administered this Act.

The pleadings will indicate that Your Honor and I stated the issues are composed and framed by the pleadings.

This was dismissed on a motion by the defense to dismiss.

The pleadings state that he is a member of Teamsters Local Union No.5.

Yes, in our investigation if Your Honor please, he has been charged with four separate offenses in connection with the investigations and he charges all -- pardon Your Honor.

The charge was in the name of the district attorney of one of the parishes of Louisiana.

However, it was initiated by the Attorney General who was acting in cooperation wit the Labor Management Commission of Inquiry.

Justice John M. Harlan: (Inaudible)

Mr. J. Minos Simon: Yes sir, essentially.

Yes sir.

The rationale of the entire investigation, if Your Honor please.

And furthermore, he charges that that these charges against him, if Your Honor please, were knowingly -- were filed by the officials when they knew that they were false charges and they knew that he was not involved.

He has attempted to get a hearing before the state courts of Louisiana and he has been unsuccessful and that's all that were cited in this matter.

Justice John M. Harlan: Is there anything that can (Inaudible)?

Mr. J. Minos Simon: I have -- I think the implicit important pleading is that he will be --

Justice John M. Harlan: (Inaudible)

Mr. J. Minos Simon: Well, he didn't allege that he had been -- that he had done something or something that happened which actually did not occur, if Your Honor please.

But what he does allege which is of great significance, I think, is that this Commission has embarked upon a course of conduct designed in purpose to destroy the labor union to which he belongs by maligning it, by maligning its members, scandalizing them, by attempting to destroy this labor union and discredit all of its members.

Now, I think Your Honors have recognized in your several decisions that the right to belong to a labor union is a constitutionally protected right under the First Amendment.

And furthermore, I think you've held that the right to belong to a -- or to belong to an association and the right to be free from defamation is also a constitutional protective right that one has and to that extent then we show injury to a constitutionally protected right.

Justice Potter Stewart: It's the other way, it's the right to defame, that's the constitutionally protected right.

Mr. J. Minos Simon: Pardon, sir?

I'm sorry.

Justice Potter Stewart: The right to defame that's been constitutionally protected not the right to be protected from defamation.

Mr. J. Minos Simon: I don't know that I interpreted the decision of this Court that way but in the Joint Anti-Fascist committee decision of this Court, I think the Court expressly held --

Justice Thurgood Marshall: Did Mr. Jenkins hold any office in the union?

Mr. J. Minos Simon: It's not alleged but I think, he did at one time, Your Honor.

I'm not certain.

Justice Thurgood Marshall: Well, it's not alleged.

Mr. J. Minos Simon: No sir, it isn't alleged.

Justice Thurgood Marshall: Well, is his interest any greater than all of the members of the union?

Mr. J. Minos Simon: It's greater in the sense that he has been directly attacked.

Justice Thurgood Marshall: Have others been attacked?

Mr. J. Minos Simon: Pardon, sir?

Justice Thurgood Marshall: Have others been attacked?

Mr. J. Minos Simon: Oh!

Yes, sir.

There are many others.

Justice Thurgood Marshall: Well then, how is his interest so great to get some standing to attack the statute?

Mr. J. Minos Simon: Well because he's -- he has individually been attacked, if Your Honor please, because his right to belong to a union has been impaired.

His right to have a collective security of association in his economic existence has been impaired and is threatened to be destroyed.

Justice Thurgood Marshall: That's in this allegation?

Mr. J. Minos Simon: Yes sir, Your Honor.

Justice Thurgood Marshall: I didn't see that, where is that?

Other than generality?

Mr. J. Minos Simon: Pardon, Your Honor?

Justice Thurgood Marshall: Other than generalities?

Mr. J. Minos Simon: Well --

Justice Thurgood Marshall: Well, it's alright, I'll find it.

Never mind.

Mr. J. Minos Simon: It expressly --

Justice Potter Stewart: Pursuing a little more of the line of inquiry of my brothers Marshall and Harlan, I -- the complaint in this case, you say this case was in the pleading, as I understand it.

Mr. J. Minos Simon: Yes sir, Your Honor.

Justice Potter Stewart: The complaint appears in the appendix page 1 through 14 and I'm interested in knowing where it is alleged there the interest or the impact of this plaintiff with respect to the -- with respect to the Commission.

Mr. J. Minos Simon: We have a supplemental complaint also.

Justice Potter Stewart: Well, maybe I missed it and I certainly don't want to cause you to sit there and sum through the brief and I'd find it but I -- but that is at least for me a rather important factor in this case.

Mr. J. Minos Simon: May I point out paragraph 10 of the original complaint.

The complainant alleges that there is no facts or legal basis whatever for the filing of such criminal charges against your complaint.

Complainant alleges that such criminal charges were filed against him to inflict summary punishment upon the complainant solely because he is a member of Teamster Local Union No. 5 and accepted from there --

Justice Potter Stewart: But those were criminal charges initiated in the ordinary way by the State of Louisiana.

Mr. J. Minos Simon: No, sir it's not in the ordinary way.

As a result of the conspiracy, alleged conspiracy among the employees and representatives of this Labor Management Commission of Inquiry whom it is alleged have singled out this particular union for repressive action.

Furthermore, we allege in the supplemental petition that they have singled out six officers of the union for murder.

Justice Potter Stewart: For murder?

Mr. J. Minos Simon: Yes.

And we have a supporting affidavit from an undercover agent of the Labor Management Commission of Inquiry that we attach to the supplemental petition.

Justice Abe Fortas: Who are the members of this Commission?

Mr. J. Minos Simon: We have -- there are -- I can't recall them by name Your Honor but --

Justice Abe Fortas: Is a dean of the law school, one of them?

Mr. J. Minos Simon: Yes, two -- one dean of a law school.

I think the chairman was another dean of law school, he was a banker.

In fact, the lower court commented on the fact that they were involved and the implication was that because of their position, it was unlikely that they would engage in a conduct described in the complaint which suggest that this is a --

Justice Abe Fortas: It's not -- it's not an everyday occurrence, is it?

Mr. J. Minos Simon: Well, of course, we speak also of vicarious liability, if Your Honor please, because under Pape versus Monroe, Your Honors have applied the civil right statute vicariously or liability of it vicariously and we speak of that context.

We didn't -- we didn't necessarily speak that the officers were directly involved but we have serious charges and I'm satisfied that the plaintiff can substantiate these serious charges with credible evidences in support of them.

Justice Byron R. White: Now you -- you don't contend that your client's own right to be represented by counsel was violated, do you agree?

Mr. J. Minos Simon: I'm sorry, I didn't not understand, Your Honor.

Justice Byron R. White: Well, what constitutional rights of your clients were violated here, his right to counsel, his right to cross-examination or what?

Mr. J. Minos Simon: He was not -- he was not called before this Commission and it didn't become a past fact that he was denied of this but he is one who has been singled out for this repressive action.

Justice Byron R. White: So what constitutional provision do you invoke here then?

Mr. J. Minos Simon: Well, we invoke this constitutional provision because of his material interest in this litigation, because this state agency seeks to destroy his union and his membership in it and consequently his right to economic security and because they are daily defaming him as such in that capacity.

He's been denied of a constitutional secured right.

Justice Byron R. White: What -- what -- What?

Mr. J. Minos Simon: And therefore, he has an interest to challenge the statute and the challenge is this Your Honor.

Justice Byron R. White: Yes, what kind?

Mr. J. Minos Simon: The challenge is that this Commission is authorized: number one, to function as an accusatory body; number two, to accuse him and anyone else of being a public --

Justice Byron R. White: What in -- what constitutionally --

Mr. J. Minos Simon: -- without the right --

Justice Byron R. White: What's the constitutional right?

Mr. J. Minos Simon: That's correct.

He has without right to the assistance of counsel, without a right to examine or cross-examine witnesses appearing before that Commission, without of course the right of having definable standards of guilt or innocence before the pronounced of guilty of any offense, and without the right to have the application of meaningful rules of evidence.

I think implicitly, the Hannah decision is a conclusion by this Court and certainly the Joint Anti-Fascist Committee that no public body can defame an individual in this manner, can destroy him, unless you accord to the individual the right of confrontation, the right of cross-examination.

Justice Byron R. White: Well, the grand jury can indict somebody and never have him before or let him cross-examine witnesses or --

Mr. J. Minos Simon: If Your Honor please, the grand jury do not --

Justice Byron R. White: Are you challenging the grand jury?

Mr. J. Minos Simon: No, sir.

I'm not -- I don't have that burden.

The grand jury does not conduct a public hearing.

It does --

Justice Byron R. White: Because they indict somebody which they can charge him of the crime.

Mr. J. Minos Simon: Well, if Your Honor please, this is not -- the ultimate charge in itself is not the gravamen of the complaint.

It is that there's a public pronouncement of guilt.

One is branded as a public enemy, preceded by a public hearing where persons are sworn.

Whether there's no compliance with the rudiments of fair play and due process, there are no meaningful rules of evidence and then after he is found guilty as such and that guilt is publicized.

And that guilt, and that finding forms part of a process of a criminal prosecution because the whole objective, the whole aim, the whole purpose of the hearing is to bring about the criminal prosecution of an individual after he has been found after he has been found guilty of the charge that's ultimately is alleged against him.

If --

Unknown Speaker: (Inaudible)

Mr. J. Minos Simon: I'm sorry Your Honor I didn't hear you.

Unknown Speaker: (Inaudible)

Mr. J. Minos Simon: I don't think it would make a substantial difference.

I think that any time --

Justice Abe Fortas: Well, suppose a legis -- may I intervene I beg your pardon.

Well, suppose a legislature said that we're conducting an investigation not for law making purposes but for the purpose of making a determination as to whether somebody has violated the criminal law.

Now, isn't that the gravamen of your complaint here?

Mr. J. Minos Simon: No, sir, Your Honor because --

Justice Abe Fortas: That this investigation that this committee set up not merely to investigate but to make and publicize a determination as to criminal offense and then to report that in so many words.

The statute says that in so many words, doesn't it?

Mr. J. Minos Simon: I think the statute goes one step farther than that if Your Honor please.

It not only states that this is what this Commission has set up to do, to investigate whether or not laws have been violated but furthermore, this Commission must make a public finding.

It must make findings that directly affect the rights of individuals.

Justice Abe Fortas: Naming persons.

Mr. J. Minos Simon: Naming persons.

Justice Abe Fortas: Now suppose I want to get back to Justice Harlan's question.

Suppose a legislative committee were set up and for this precise purpose that is to say to ascertain whether criminal laws have been violated and to name specific persons for that purpose.

Do you or do you not consider that that would be within the legislature's constitutional prerogative?

Mr. J. Minos Simon: I believe that in that context where there's no purpose to gather evidence for the purpose of enacting legislation or their remedial character where the sole function is to make an official for public judgment as to guilt or innocence of citizens.

I think that in that context, even if the legislature is acting, that the rigorous demands of due process must be complied with, that the individual have the right to cross-examine witnesses and have a right to the effective assistance of counsel and all of the panoply of due process that is envisioned by the Fourteenth Amendment of -- to the Constitution.

But this is not the end product or the end result or the ultimate purpose of this particular legislation.

They go one step further.

They have a mandatory inescapable duty of then proceeding to present this to the state and federal authorities charged with the responsibility of instituting criminal proceeding.

Now, this is far removed from legitimate legislative investigation where evidence is gathered.

No formal judgment of guilt or innocence as pronounced but evidence is gathered to be called and sifted and to be considered for the members of the legislature for the purpose of attempting to this due remedial legislation.

This is not involved in this particular case.

The whole purpose is to first, publicly condemn and that's preceded by a formal hearing where the oath is solemnly told and then there is condemnation and not only condemnation but there is an additional step where the committee, the executive committee will then go forward and file and present this to the authorities charged with the prosecution of criminal law violations.

In addition to this it has the authority itself to go forward and file these charges.

Justice Abe Fortas: Well, I know but all --

Mr. J. Minos Simon: What else must (Inaudible)?

Justice John M. Harlan: (Inaudible)

Mr. J. Minos Simon: They make their recommendation and their findings to the proper authorities.

Justice John M. Harlan: They publish it to the world.

Mr. J. Minos Simon: They publish it to the world.

No question about that.

Justice John M. Harlan: (Inaudible)

Mr. J. Minos Simon: Yes, sir.

It's an inescapable mandatory duty.

They must publicize their findings and all of the evidence upon which their public -- their findings are based must themselves be public.

Unknown Speaker: (Inaudible)

Mr. J. Minos Simon: But I think this goes one step further that they actually have the power to say who is guilty and who is not guilty.

Unknown Speaker: (Inaudible)

Mr. J. Minos Simon: Well, I'm not familiar with the decision that Your Honors referred to except to say that --

Unknown Speaker: (Inaudible)

Mr. J. Minos Simon: Beyond any question, yes.

Beyond any question I think that's what it should be done.

Unknown Speaker: (Inaudible)

Mr. J. Minos Simon: Yes, sir.

That's correct, sir.

That's correct.

Because -- and of course, the result of harm is aggravated by the fact that this resides exclusively in the Executive Branch of Government where you have a system of laws in the states and the other states where these matters are handled either by the grand jury in a private discussion where no one publicized as such.

There's no evidence to show his guilt.

The whole State of Louisiana says it's a jury while this individual is being formally accused of crime and is actually found guilty of crime.

Justice Potter Stewart: You have a grand jury presentments in your state?

Mr. J. Minos Simon: We do, Your Honor.

Justice Potter Stewart: As contrasted with indictments?

Mr. J. Minos Simon: No sir, Your Honor.

We have indictments.

Justice Potter Stewart: Well, do you or don't you?

Do you have presentments or don't you?

Mr. J. Minos Simon: I'm not familiar with presentment but all I know indictment is the only thing we have.

Justice Potter Stewart: This was -- how about the -- what's this conspiracy to murder business?

That's in the amended complaint?

Mr. J. Minos Simon: Yes sir, that's in the amended complaint as alleged.

That investigations for this Commission when instructed and this came from one of their former undercover agent when instructed to shoot named individuals who killed so long as it was colorably shown that it was done as self defense and this indeed and this is in connection with the fact that this statute gives immunity to every employee and every official and every agent of this Commission for anything to do.

Justice Potter Stewart: For murder?

Mr. J. Minos Simon: It says immunity for anything to do while the performance of any duty assigned to them and the statute expressly grants it to them.

Justice Byron R. White: How do you get away from the Hannah versus Larche?

Mr. J. Minos Simon: Because Hannah was not an accusatory function, if Your Honor please.

Hannah did not involve an accusatory function.

It was not and did not have an accusatory function.

Hannah for example wherever there was a defamatory content or an incriminating content, Hannah went into executive session, it had to.

Well, as this Court said, it shall go into executive session and this information was released only with the consent of the Commission.

The contrary is true in this case.

This Commission must conduct public hearing.

If it goes into executive session, it cannot utilize what evidence it has developed in that session and if it seeks to do so, it must represent all anew, all this evidence in a public hearing.

There was some claim.

Well, in the preamble it shows that there was a shutdown of the industrial complex in the City of Baton Rouge some months preceding in the enactment of this legislation and thus there was an emergency created and this Commission was created.

That's (Inaudible).

Thank you.

Unknown Speaker: (Inaudible)

Mr. J. Minos Simon: You asked me what they had --

Unknown Speaker: (Inaudible)

Mr. J. Minos Simon: Background.

Yes it is.

Yes sir.

I'll give you the background, if Your Honor please.

Mr. Partin who heads this union was the star witness who testified on behalf of the Government against Mr. Hoffa, and Mr. Hoffa's prosecution and his background there -- the continuing background of effort being made to get Mr. Partin to recant his testimony so as to be used as a basis to grant to Mr. Hoffa a new trial.

There have been statements of bribery by state officials and otherwise or attempted bribery of Mr. Partin.

There are criminal charges pending the state courts involved in the very same thing.

There's adult with charge who was attempting to bribe Mr. Partin and other individuals and this is part -- in other words, the effort to bribe Mr. Partin apparently from what is available, the information is available.

It includes state officials and its part of an effort to coerce Mr. Partin into recanting his testimony.

It sounds somewhat strange but I only advocate the rights of my client and that's what the evidence demonstrates.

Unknown Speaker: (Inaudible)

Mr. J. Minos Simon: That's -- that's the conviction of my client Your Honor and there seems to be apparently evidence available to support that charge.

Justice Potter Stewart: Your client is a member of the union of which Mr. Partin is the --

Mr. J. Minos Simon: The head.

Justice Potter Stewart: -- head.

Mr. J. Minos Simon: Yes, sir.

Justice Potter Stewart: And he thinks that Mr. Partin is being damaged.

Mr. J. Minos Simon: Well, I think the whole union is being damaged.

Being characterized, the Governor has called them gangsters and hoodlums.

The Governor further asked them to point this out.

Furthermore, the Governor stated that anybody who would give testimony in support of the conspiracy charge involved in this particular case in the Martone case, will be charge with perjury.

With Mr. White, the undercover agent signed his affidavit, within 30 days, he signed the affidavit that was filed in the federal forum, the Federal District Court.

Within 30 days, a member of the Commission filed perjury charges against Mr. White's statement based upon his allegation that these people were involved and were involved in the conspiracy to commit murder.

Furthermore, we are involved in the conspiracy of bribing people and fabricating evidence against these people.

Thank you, Your Honor.

Argument of Ashton L. Stewart

Mr. Ashton L. Stewart: Mr. Chief Justice --

Chief Justice Earl Warren: Mr. Stewart.

Mr. Ashton L. Stewart: Yes, sir.

Mr. Chief Justice and may it please the Court.

The preamble of this statute provided that there have been a shutdown in the construction work in the vicinity of Baton Rouge and that because of the great need for statewide investigatory powers which they did not have at that time and to aid and assist the district attorneys and the grand juries and then law enforcement officers enacted this legislation in order to create this investigatory commission.

Faced off it specifically provided that the Commission should not make any adjudication as to the guilt and innocence or as to (Inaudible) property rights just as what's held in Hannah versus Larche.

The --

Chief Justice Earl Warren: My interpretation to (Inaudible)

Mr. Ashton L. Stewart: A legal adjudication.

They can make findings, yes sir.

Chief Justice Earl Warren: But they can't (Inaudible).

Mr. Ashton L. Stewart: No sir.

Chief Justice Earl Warren: (Inaudible)

Mr. Ashton L. Stewart: They have no authority to accuse anyone just as in the Civil Rights Commission.

That commission have authority to make findings and so that this Commission have the authority to make findings.

In addition to that, they went further and spelled out the words that the counsel placed on.

It says, it may include in its findings general conclusions or particular inclusions as to particular individuals.

I may not have the exact words but that was what it could include in its findings but the -- the words -- yes sir, the statute does say so but of course all public reports such as this report on the Civil Rights Commission would have been filed and then publicized by being made public.

This report of this Commission was to be filed with the legislature and the governor and of course would have made it publicized also.

Unknown Speaker: (Inaudible)

Mr. Ashton L. Stewart: The only object I could understand from their statute, if it please the Court, is that they especially wanted everything into public's eye with reference to this.

It was embroiled the community in such a tremendous matter that they wanted everything out in open in public.

That's the reason they required all the hearings to be heard public and then --

Justice Abe Fortas: Well, as a matter of fact all civil matters are in the labor management field are expressly excluded from the jurisdiction of this Commission, was it not?

Mr. Ashton L. Stewart: Yes.

Justice Abe Fortas: And the Commission's jurisdiction is limited only to violations of criminal law in the field of labor management relations, isn't that right?

Mr. Ashton L. Stewart: That's correct sir.

Justice Abe Fortas: With the expressed exclusion of civil matters.

Mr. Ashton L. Stewart: That's exactly correct sir.

Justice Abe Fortas: So that it's suppose to have public hearings and make a public report identifying individuals and making findings that they have violated the criminal laws of Louisiana or the United States, is that right?

Mr. Ashton L. Stewart: They were supposed to make findings and that provided they made include in those findings particular individuals retake --

Justice Abe Fortas: Only on violations of the criminal law and if they come across any labor management problems which is not a violation of criminal law they are supposed to exclude it from the scope of their operations.

Mr. Ashton L. Stewart: Yes, that's exactly sir.

Chief Justice Earl Warren: And Civil Rights Commission.

Mr. Ashton L. Stewart: Yes sir.

Well, I don't know about the -- I wouldn't want to answer that right off but the Civil Rights Commission statute does provide that they make findings and I'm reading from 1975.

Chief Justice Earl Warren: (Inaudible)

Mr. Ashton L. Stewart: Yes, the Civil Rights Commission limited to voting denials and in that respect they are similar, yes sir.

Its investigation in that -- in Hannah versus Larche, there was the same contention made that they would publicize and hold these people up to scorn because of having committed some crime and repressions to the voting thing and that's the same identical argument we made here.

Justice Abe Fortas: No, no but you're not saying are you that Civil Rights Commission involved in Hannah against Larche was suppose to confine itself to violations of the criminal law.

Mr. Ashton L. Stewart: No sir, I didn't intend to say sir.

Justice Abe Fortas: I don't think so.

Mr. Ashton L. Stewart: No sir and if I did I'm sorry.

Unknown Speaker: (Inaudible)

Mr. Ashton L. Stewart: Well, it could be that judge but I --

Unknown Speaker: (Inaudible)

Mr. Ashton L. Stewart: Well, I would say as exactly what the Civil Rights Commission was.

It had a right to have hearings --

Unknown Speaker: (Inaudible) for that commission.

Mr. Ashton L. Stewart: Well, that's exactly right.

It has a right to hold hearings, make investigations report to the legislature and to the governor and it may include in its report particularly individuals, yes sir.

Unknown Speaker: (Inaudible)

Mr. Ashton L. Stewart: Yes sir.

Under the statute, they're entitled to just as in the Civil Rights Commission to be accompanied by an attorney but he is not given the right to cross examine the other witnesses without the Commission's --

Unknown Speaker: (Inaudible)

Mr. Ashton L. Stewart: No sir, it is not.

Justice Thurgood Marshall: Well, Mr. Stewart, I understand it, they hold these hearings and they air everything in public and then they find that they have violated a or several laws, criminal laws of the State of Louisiana, is that right?

Mr. Ashton L. Stewart: Yes, sir.

Justice Thurgood Marshall: And then they referred to a trial court to prosecute him, right?

Mr. Ashton L. Stewart: They -- those in authority or prosecution, yes that they can give the information to him.

Justice Thurgood Marshall: Well, what's the purpose of saying to the Court when you already found him guilty?

Mr. Ashton L. Stewart: Well, this Commission cannot do anything to deprive him of any of his rights at all.

Justice Thurgood Marshall: Except to find him guilty without a trial?

Mr. Ashton L. Stewart: Same way with the grand jury, yes, sir.

They can find him -- they could charge him or say that that is their opinion and that would be far greater than this proceeding.

Justice Thurgood Marshall: Am I correct that if Louisiana grand jury is not public.

Mr. Ashton L. Stewart: You're certainly correct, yes sir.

Justice Thurgood Marshall: Well, this is public?

Mr. Ashton L. Stewart: This is a public hearing, yes sir.

Justice Thurgood Marshall: And findings?

Mr. Ashton L. Stewart: Finding, yes sir.

Justice Thurgood Marshall: And the findings are either that you have or you have not violated the criminal law.

Mr. Ashton L. Stewart: It could be, yes sir.

Justice Thurgood Marshall: By a state official defined you.

Mr. Ashton L. Stewart: Yes sir, on commission.

Justice Thurgood Marshall: Aren't you guilty, isn't that what they did?

Mr. Ashton L. Stewart: Well, I wouldn't say so, no more than any other commission, no more than any other legislative commission or committee, they can make observations.

The statute says to make findings and that's whatever the legislative commission --

Justice Thurgood Marshall: And what is your idea be it defined then, we find (Inaudible) what?

Guilty of violating such and such a statute, what would your word be?

Mr. Ashton L. Stewart: Well, I would think that would be sufficient judgment.

Justice Thurgood Marshall: To say that he's guilty.

Mr. Ashton L. Stewart: They could find -- that would be a finding.

A finding would encompass such --

Justice Thurgood Marshall: And then you give him all the due process after that.

Mr. Ashton L. Stewart: Well, if we have a situation as we have here with these conditions going on and with the jurisdiction of the district attorneys and the grand juries limited to parish limits, they needed something because this industrial complex encompass far more than one or two parishes.

They needed some help.

What were they to do?

They certainly publicize by making everything public.

The public of course could judge very well if anyone was doing something unfair then I think that was one of the statutory features of this statute was public and not private.

Unknown Speaker: (Inaudible)

Mr. Ashton L. Stewart: He's appointed by the Governor, sir.

It has to be free from labor, free from management, and free from the public.

It did include the dean of the two university law schools who were chairman; the dean of Louisiana State University was vice chairman.

Yes sir, he accepted and served both have since resigned or not with it anymore.

Justice Thurgood Marshall: Now they are not.

Mr. Ashton L. Stewart: Both of them, yes sir.

Unknown Speaker: (Inaudible)

Mr. Ashton L. Stewart: Well, yes sir.

Both of them actually accepted and served.

Dean Morgan who was chairman and Dean Abe was vice-chairman.

Until recently, there have been no hearings since those two have stepped down.

Justice Abe Fortas: Did the Commission get at any rules and regulations?

Mr. Ashton L. Stewart: They were more or less spelled out in the statute that they had to do exactly what they did in the Civil Rights Commission.

Justice Abe Fortas: I see they have a power to publish rules and regulations, did they do that?

Mr. Ashton L. Stewart: Not that I know of any difference from those in the statute.

Justice Abe Fortas: Has the Commission assigned any of its personnel to the state police under 880.6 (c)?

Mr. Ashton L. Stewart: I'm sure they have sir, that's not in the record.

Justice Abe Fortas: And I notice that that provision provides that upon request of the governor, the Commission may assign all the private investigatory forces to the state police to assist them in investigating any violations or probable violations of law and in apprehending all persons engaged in violation of law, what does that mean?

Mr. Ashton L. Stewart: That's the general duty and obligations of the state police.

Anytime they needed help, these could be assigned to the state police at that time the police --

Justice Abe Fortas: The Commission can have its personnel operate as part of the state police, make arrest and so on.

Mr. Ashton L. Stewart: Under -- yes, under those circumstances.

Justice Abe Fortas: And you say it has done that.

Mr. Ashton L. Stewart: I'm sure it has, yes sir.

This Commission --

Chief Justice Earl Warren: Civil Rights Commission has such (Inaudible).

Mr. Ashton L. Stewart: No sir, no sir.

Chief Justice Earl Warren: (Inaudible)

Mr. Ashton L. Stewart: Well, with reference to the procedures here, they're identical with the Civil Rights Commission.

The court below said the procedures were drafted with the Civil Rights Commission as a model.

Chief Justice Earl Warren: (Inaudible)

Mr. Ashton L. Stewart: No, sir.

Chief Justice Earl Warren: (Inaudible)

Mr. Ashton L. Stewart: No responsibility.

In this one, they do have the authority to file with -- sir?

Chief Justice Earl Warren: (Inaudible)

Mr. Ashton L. Stewart: To file with --

Chief Justice Earl Warren: (Inaudible)

Mr. Ashton L. Stewart: Sir?

Chief Justice Earl Warren: (Inaudible)

Mr. Ashton L. Stewart: Not that I know of sir.

Not the Commission, no sir.

No sir, not that I know of.

The Commission hasn't been overly successful.

The -- I would like to answer some other questions that have been raised here, with reference --

Chief Justice Earl Warren: (Inaudible)

Mr. Ashton L. Stewart: No sir I do not think so.

My understanding Dean Morgan was already retired from another position and he wanted some peace.

He just served temporarily in my understanding at the behest of the government until this investigation of Baton Rouge business was over with and that with and after that he had stepped down and the same way with Dean Morgan.

And it was quite different from the three labor members, they resigned for other purposes because of civil service argument I believe.

Chief Justice Earl Warren: (Inaudible)

Mr. Ashton L. Stewart: Nine.

Chief Justice Earl Warren: (Inaudible)

Mr. Ashton L. Stewart: Well, I know that Dean Morgan and Dean Abe have resigned and three labor members they resigned and I believe so, subsequently here recently, the governor haven't accepted their resignation so they came back and they have now been holding some executive meetings.

I do not know.

I do not represent the Labor Management Commission.

I'm just handling this litigation and I'm not familiar with what they are doing in such as it.

We would like to say that there's nothing in the record to show that any of these charges against Mr. Jenkins were filed by this Commission that is the assault charges.

There's nothing in the record to show his -- the allegation that was read was that these charges in conspi -- were filed in conspiracy with the Commission.

The affidavit of Mr. George with reference to the murder count is quite different I think than saying that he had made that allegation.

He says that he was advised that these various men could be shot and killed by members of the labor -- by members of the Commission of Inquiry at the slightest provocation and the amount of it would make it appear to be an act of self defense and we would like to add here that all of the allegations with reference to the administration of the statute and we've argued it at length in our brief have no causal connection with the administration of the statute.

They charge for example that Mr. Jenkins himself was filed on by the district attorney that has no causal connection with the Commission because they can't do that and it's not that they did it.

He does not allege that.

The causal connection is lacking to where they say that the Commission is threatened to kill these six people.

That has no causal connection with the administration of the statute.

There are many other things that they have alleged here that they have passed her that have no causal connection with the administration of the statute and we would like to touch on the lack of jurisdiction here and mootness and one of the basis of the lower court's decision.

Here, this plaintiff has not alleged that he was about to be called or that he has been called or that he was being investigated or it was about to be investigated.

He has said that he was suing as a member of a class and he hasn't even alleged so far as we can read his petition that any members of the labor union that he belonged to were subpoenaed or were about to be subpoenaed or were being investigated.

Justice Byron R. White: He doesn't allege that he was an object of the investigation.

Mr. Ashton L. Stewart: No sir, he does not.

Justice Byron R. White: Or that he was ever -- I thought I understood you to say that he has been charged -- that the state charges have been filed against the him as a result of the Commission's word.

Mr. Ashton L. Stewart: That's not in the record.

Justice Byron R. White: It isn't alleged in the complaint?

Mr. Ashton L. Stewart: No sir.

The --

Justice Byron R. White: There's nothing in the record about it?

Mr. Ashton L. Stewart: Well, I won't say that.

He has said that the Labor Management Commission in conspiracy with the district attorney filed these charges against him.

Now, if you can eek out to that that was the Commission doing it as something else but that's the only allegation.

Justice Byron R. White: Was there any -- any allegations in the record or anything to reveal whether or not any witnesses were called who testified against him?

Mr. Ashton L. Stewart: No sir.

There's nothing to that effect here.

Justice Byron R. White: No indication in the record that he was the object of any commission hearing.

Mr. Ashton L. Stewart: Nothing in the record.

Justice Byron R. White: Or the object of any findings by the Commission.

Mr. Ashton L. Stewart: Nothing in the record.

He is a stranger to these proceedings and if the Court were to grant the injunction it would not help him in accordance with the record.

We repeat again that this Commission --

Unknown Speaker: (Inaudible)

Mr. Ashton L. Stewart: Only the broad term conspiracy sir but when he gives any factual connection, he talks about this murder business and these charges filed by the district attorney and other charges such as someone being arrested by -- the search warrant by an arrest warrant and searched by a search warrant in a flamboyant manner such as that but there is nothing here to tie in the procedures that he has and he calls in connection with the administration of the statute.

Unknown Speaker: (Inaudible)

Mr. Ashton L. Stewart: Well, only that broad statement but all of the facts that he alleged none of the facts have any causal connection.

Unknown Speaker: (Inaudible)

Mr. Ashton L. Stewart: Well, he does make the statement as you have quoted but then in an explanation of it, he goes on and sets out all the facts and we take it that those are the --

Unknown Speaker: (Inaudible)

Mr. Ashton L. Stewart: I wouldn't say he purports it set out all the facts, no sir.

I'm incorrect in that.

He sets out the facts that are in the petition, all the facts that are in this petition as amended.

Justice Thurgood Marshall: Is it true Mr. Stewart that he is a member of the union which caused the work stoppage which brought about this statute?

Mr. Ashton L. Stewart: I would think that my recollection, I don't -- that's not in the record but the recollect -- my recollection is that the -- one of the big problems was the jurisdictional problem between electricians and the Teamsters and he is one of the members of one of those unions.

Yes.

Justice Thurgood Marshall: He is a member of the teamsters.

Mr. Ashton L. Stewart: Yes, the Teamsters.

Justice Thurgood Marshall: There is some connection.

Mr. Ashton L. Stewart: Yes, on that basis.

Justice Thurgood Marshall: They brought about the statute, didn't they?

Mr. Ashton L. Stewart: Well, of course now that's the only one side.

The accusations were quite broad and long that there were many industrial people who brought this unto the employer.

Justice Thurgood Marshall: I'm not using your statute.

It says that we're getting at the statute that this is the reason for it.

Mr. Ashton L. Stewart: Well, no sir.

It only says that there are industrial shutdown and affecting thousands of people in this community and in the construction of industrials plants.

Yes sir, that's what it says.

Justice Thurgood Marshall: Well, can you have construction of industrial plants without trucks?

Mr. Ashton L. Stewart: No sir.

Well, I'm not saying that -- I've not said that -- not intended to say that the labor union of the Teamsters were not included in the investigations and not included for the real basis for having enacted the statute but there were many other facets to it and the statute did not attempt to spell out which particular one or the numerous ones that they were relying on.

It just says, we have this bad situation.

We need to get statewide power of investigation and we need to have some assistance to the grand juries and to the district attorneys.

Justice Abe Fortas: May I ask you sir, has this Commission filed any official reports of its actions?

Is there a record in anywhere that would be available to us of what the Commission has done?

Mr. Ashton L. Stewart: There was a report filed, if it please the Court, but it did not go into the any particular person.

It did say in generalities and this is most -- most of this is anticlimaxal because the whole problem has been tied in courts such as this case and in time you get ready to subpoena a witness, you have contempt problem and have had the hands more or less tied.

It has not functioned as it was anticipated as it was anticipated that it would function and probably will not unless this Court finally have proof.

There have been no findings that any particular person was guilty of anything.

There have been no findings as to such as that.

Justice Abe Fortas: Well, has -- I beg your pardon.

Has there been an annual report or some other official report that would be available to us or official reports of action taken from time to time regardless of what they say?

Mr. Ashton L. Stewart: Yes sir.

There was one on my recollection that not too far long back and that could be available and we'd be happy to make it available if the Court desires.

Unknown Speaker: (Inaudible)

Mr. Ashton L. Stewart: They held some -- originally, they have not held any since the time of this case.

In my recollection, they have not held a public hearing.

I could be wrong but I think I'm not that when these injunctions started issuing, they have not held another public hearing since then.

Well, we have one in the Martone case.

It came up through the state courts.

Well, thank you.

Chief Justice Earl Warren: (Inaudible)

Mr. Ashton L. Stewart: Well, the Commission could not have --

Chief Justice Earl Warren: Perhpas we charge that they have (Inaudible).

Mr. Ashton L. Stewart: No sir.

My understanding, the Commission has no authority whatsoever to file any information such as out against a man.

We have cited in our brief, and only the district attorney can do that or the grand jury.

Chief Justice Earl Warren: Now District Attorney (Inaudible) --

Mr. Ashton L. Stewart: In conspiracy, yes.

In conspiracy but --

Chief Justice Earl Warren: (Inaudible)

Mr. Ashton L. Stewart: But as what he said, that we -- our answer is that they have no authority to do that.

They have no authority to do that.

They have no control over the district attorney.

They have nothing more than the right of any citizen to go down and complain against somebody.

Now --

Chief Justice Earl Warren: Well, they could conspire.

Mr. Ashton L. Stewart: Oh yes, that they could conspire to such as that but only the district attorney can make that decision, only the grand jury.

Are there are any other questions?

Thank you, sir.