this reason it will be understood that this is a memorandum brief which does not purport to give exhaustive treatment to the issues involved.

Briefly stated, the issues here involve (1) the question whether the Civil Rights Act can properly be construed to authorize the sweeping subpoenas issued by the Commission and sought to be enforced in this proceeding; (2) the validity of the Act and the jurisdiction of the court, if the Act can be given such an unlimited construction; and, if it is held that this court has jurisdiction, (3) the propriety and extent of the exercise of such jurisdiction.

I. WITH RESPECT TO THE RECORDS ORDERED PRODUCED, THIS ACTION IS AGAINST THE STATE OF ALABAMA

It is clear that when a petition for the enforcement of an administrative proceeding is filed with a Federal court, it initiates a civil action. See Interstate Commerce Comm. v. Brimson, 154 U.S. 447, 489, 38 L. Ed. 1047, 1061 (1894); Fed. R. Civ. P. 81 (a) (3). It is also clear that the enforcement proceeding which is at bar is, through the agency of the United States Attorney General, an action by the United States and, certainly to the extent that state records are sought, is action against the State of Alabama.

Although the State of Alabama is not named as a party here, it is the real party in interest with respect to its records and the official and judicial conduct of its officers. In such a case, where a state official is named as the party defendant, the court will consider whether the relief is not, in substance, sought against the state. See Georgia R.R. & Banking Co. v. Redwine, 342 U.S. 299, 304, 96 L. Ed. 335, 340 (1952). See, also, Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 89 L. Ed. 389, 394 (1945), in which the court said: "We have previously held that the nature of a suit as one against the state is to be determined by the essential nature and effect of the proceeding. * * And when the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants."

Here, instead of money, the United States is attempting to seize official records of the state and, in effect, to restrain a state judge from the performance of his duties and to disrupt the operations of a state court of general jurisdiction. The rule of Ex Parte Young does not apply here. This proceeding "is not a proceeding within the principle that suit may be brought against state officers to restrain an attempt to enforce an unconstitutional enactment. That principle is that the exemption of States from suit does not protect their officers from personal liability to those whose rights they have wrongfully invaded." Missouri v. Fiske, 290, U.S. 18, 26, 78 L. Ed. 145, 150 (1933). Nor is this a suit to restrain or punish state officials for acts which are unconstitutional and which are not therefore, even if under color of office, within their official capacity. Here, with respect to their custodianship of registration records, all respondents are acting as officers of the state. In no other capacity could they be ordered to produce the records. This is made clear from the Commission's subpoenas, which show on their face that respondents were summoned in their official rather than in their individual capacities.

As stated in Ex Parte Avers, 123 U.S. 443, 489, 31 L. Ed. 216, 224 (1887): "The inference is that where it is manifest, upon the face of the record, that the defendants have no individual interest in the controversy, and that the relief sought against them is only in their official capacity as representatives of the State, which alone is to be affected by the judgment or decree, the question then arising, whether the suit is not substantially a suit against the State, is one of jurisdiction."

Ex Parte Avers is an Eleventh Amendment case, but such cases are relevant to show (i) what constitutes a suit against a state and (ii) the strong constitutional policy of immunizing states against suits even when such suits are brought by the United States.

The State of Alabama is obviously the real respondent in interest here, for the named respondents, either in their individual or official capacities, have no authority to surrender to the Commission any official records in their custody. Thus, the state is an indispensable party to this proceeding, and process must issue to it if the application of the Attorney General is to be granted.

8209 U.S. 123, 52 L. Ed. 714 (1908).

It is clear that Congress had no remote intention to bring about any such violence to our constitutional system as to attempt to require a sovereign state to deliver up its records and officers for an accounting to a subordinate, nonfunctional and temporary agency of the executive branch of the federal government.

II. THE CIVIL RIGHTS ACT CANNOT BE CONSTRUED TO EMPOWER THE COMMISSION TO COMPEL THE ATTENDANCE OF STATE OFFICIALS OR THE PRODUCTION OF STATE RECORDS OR TO AUTHORIZE THE ATTORNEY GENERAL TO BRING AN ACTION AGAINST THE STATE

A. Introductory: The Nature of the Commission

The Commission on Civil Rights is a unique phenomenon in our scheme of government. We are familiar, of course, with the inquisitorial nature of grand juries, which have a traditional and historical place in Anglo-American jurisprudence, which are arms of the judiciary, which conduct their hearings in secret, and which are drawn from the communities in which they exert their power. In later years we have become familiar with permanent government agencies which, in connection with their administrative functons, have been granted inquisitorial powers. More recently, the investigative functions of Congress have assumed a greater importance than in previous times."

The Commission on Civil Rights, however, is something new. It is an ad hoc body of ephemeral existence, insulated by its nature from the electorate, and having no other function that to investigate and to report. It is a roving grand jury without any of the traditional safeguards and restraints of local citizenship and judicial supervision which surround that institution. Its power to subject the several states and their judicial and other officers to its investigative processes should not be lightly inferred in the absence of express statutory command.

Section 101 (a) of the Act provides that the Commission is an agency of the executive branch of the government. Section 104 (a) provides that the Commission shall investigate allegations of deprivation of voting rights, study legal developments with respect to equal protection of the laws, and appraise the present laws and policies of the government with respect to equal protection. Section 104 (b) provides that the Commission shall submit its reports both to the Congress and to the President. Thus, the Commission has relationships with both the executive and legislative branches of the government.

With respect to the Commission's "executive aspect," its power to investigate has meaning only to the extent that its findings may be used (i) as a basis for criminal prosecution under the old Civil Rights Acts or (ii) as a basis for injunctive restraint in newly created civil proceedings at the instance of the Attorney General under Section 131 of the Act of 1957. To the extent then that the "investigations" of the Commission are for the use of the executive branch, the Commission has meaning only as an inquisitorial body for the Attorney General, a clear usurpation of the traditional function of grand juries and a violation of the doctrine of separation of powers on the national level. The subpoena powers of the Commission, as related to this aspect of its existence, and regardless of whether exercised against individuals or against state officials, can no more be sustained than could such powers if granted to the Attorney General to aid in criminal prosecutions.

The investigatory powers of the Commission, at least so far as they involve coerced testimony and production of records, can be sustained only if Congress has the power to make such investigations and then only if Congress can delegate such power to an ad hoc agency. We submit, however, that it is unnecessary for this court to decide these issues, since the Act cannot be construed to attempt to invest in the Commission the power to subject the states to its jurisdiction, as is here attempted, by compulsory process against judicial officers and records.

Of course, the power of Congress to investigate, so long as exercised in reasonable relation to its legislative powers, has never been doubted. The questions of whether this power may be exercised directly against the several states and whether such power is delegable and, if so, to what extent, are considered subsequently. Infra, pp. 33-62.

B. The Civil Rights Act Cannot Be Construed To Empower the Commission To Compel the Attendance of State Officials and the Production of State Records

The Civil Rights Act does not in express terms grant to the Commission the power to coerce the attendance of state officials for the purpose of questioning them in regard to their official acts or to compel the surrender by the state of its official records. In determining whether the powers of the Commission should be construed to include such power, the court should bear in mind “that in ascertaining the scope of congressional legislation a due regard for a proper adjudgment of the local and national interests in our federal scheme must always be in the background." See Federal Trade Commission v. Bunte Bros., 312 U.S. 349, 351, 85 L. Ed. 881, 883 (1941). And as was said by Mr. Justice Jackson in United States v. Five Gambling Devices, 346 U.S. 441, 449, 98 L. Ed. 179, 187 (1953):

"We do not question that literal language of this Act is capable of the broad, unlimited construction urged by the Government. Indeed, if it were enacted for a unitary system of government, no other construction would be appropriate. But we must assume that the implications and limitation of our federal system constitute a major premise of all congressional legislation, though not repeatedly recited therein. * * * We find in the text no unmistakable intention of Congress to raise the constitutional questions implicit in the Government's effort to apply the Act in its most extreme impact upon affairs considered normally reserved to the states."

In Stefanelli v. Minard, 342 U.S. 117, 121, 96 L. Ed. 138, 143 (1951), the court said with respect to the Civil Rights Act:

10

"Only last term we reiterated our conviction that the Civil Rights Act 'was not to be used to centralize power so as to upset the federal system.''

We do not say here that Congress has no power to enact appropriate legislation for the purpose of enforcing the requirements of the Fourteenth and Fifteenth Amendments. Nor do we say that Congress has no power, subject to limitations hereinafter discussed," to conduct such investigations as may be "necessary and proper" for the informed enactment of such legislation. We do say, however, that the validity of the present Act is highly questionable if construed as here attempted by the Attorney General, and that no congressional enactment should, in absence of clear and specific language, be construed to permit ad hoc investigating agencies attached to the executive branch to exercise coercive powers with respect to state officials and state records.

The legislative history of this bitterly resisted statute emphasizes the caution with which the Congress entered into this extremely sensitive area. The majority of the House Committee on the Judiciary carefully disclaimed any intention of encroaching upon the sovereignty of the states, saying:

"It is the opinion of the Committee on the Judiciary that the proposed legislation neither encroaches upon nor diminishes the respective powers of a state or the Federal Government as recognized in the American concept of dual sovereignty. The proposal does not extend or increase the area of civil rights jurisdiction in which the Federal Government is entitled to act." "

C. In Absence of Unequivocal Language, a Congressional Enactment Should Not Be Construed To Permit an Action Against a State

Section 105 (g) of the Civil Rights Act authorizes the United States Attorney General to bring an action to enforce compliance with the subpoenas issued by the Commission. No express authorization has been given to bring an action against the state. When a state is acting in its governmental capacity, it should not with respect thereto be subjected to Federal compulsion in the absence of express language compelling that result.

It is true that a contrary result has been reached in cases where the issue is Federal regulation of proprietary functions of the states. See, e.g., Case v. Bowles, 327 U.S. 92, 99, 90 L. Ed. 552, 558 (1946), in which it was held that the Emergency Price Control Act extended to the sale of timber by the State of Wash

10 8 U.S.C. § 43.

11 Infra., p. 33-62.

12 H. Rept. 291. Apr. 1, 1957, as reported in U.S. Code Cong. & Admin. News, 85th Cong., 1st Sess., 1957, at p. 1970.

ington. In that case, however, the Act itself expressly stated that it was applicable to the United States "or any other government, or any of its political subdivisions, or any agency of any of the foregoing."

Furthermore, the cases relied upon in Case v. Bowles 13 make it clear that the courts have never held, except with respect to states acting in a proprietary capacity, that federal legislation may be construed to extend to states in absence of express language to that effect. In United States v. California, 297 U.S. 175, 80 L. Ed. 567 (1936), it was held that the state was acting in a proprietary capacity in operating a railroad and in such capacity was subject to the Federal Safety Appliance Act although the Act did not expressly include states within its scope. In California v. United States, 320 U.S. 577, 88 L. Ed. 322 (1944), the state was acting as the proprietor of piers and terminals. In Ohio v. Helvering, 292 U.S. 360, 369, 78 L. Ed. 1307, 1310 (1934), the state was operating retail liquor stores.

In the present case, however, the state is ordered to produce records relating to the registration of voters. These records are made and retained by the state in a governmental and not a proprietary capacity. If Congress intended to permit an action to be brought against the state with respect to its sovereign acts, it would have expressed that intent in unequivocal language.

D. Subpoena Powers Granted to an Executive Agency Should Be Narrowly Construed

Assuming arguendo that subpoena powers were properly delegated to the Commission, such powers should be narrowly construed. In the case of Cudahy Packing Co. v. Holland, 315 U.S. 357, 363, 86 L.Ed. 895, 899 (1942), the court pointed out that the subpoena power:

“*** is a power capable of oppressive use, especially when it may be indiscriminately delegated and the subpoena is not returnable before a judicial officer. *** True, there can be no penalty incurred for contempt before there is a judicial order of enforcement. But the subpoena is in form an official command, and even though improvidently issued it has some coercive tendency, either because of ignorance of their right on the part of those whom it purports to command or their natural respect for what appears to be an official command, or because of their reluctance to test the subpoena's validity by litigation."

In the Cudahy Packing Co. case, the court held that subpoena powers granted to an executive agency are narrowly to be construed and under such narrow construction that the Wage-Hour Act could not be interpreted to permit the Administrator to delegate the subpoena powers vested in him. See, also, United States v. Minker, 350 U.S. 179, 100 L.Ed. 185 (1956)," in which the court narrowly construed subpoena powers vested in an executive agency.

The unprecedented invasion here attempted shows the necessity for construing subpoena powers narrowly so as to minimize the danger of oppressive and unconstitutional use. Here, the Commission seeks to use its power to reach all registration records of these counties for three years, to disrupt the processes of a state court, to summarily order a state judge to depart from his jurisdiction, and to summon registration officials from three counties, all to appear at the same time and all to wait indefinitely upon the convenience of the Commission. If this power is sustained, it gives such ad hoc commissions power literally to halt all operations of state government.

It is inconceivable that the subpoena powers vested in the Commission should, in absence of express language, be extended by the courts to reach any such revolutionary result.

E. A Statute Should not be Construed in Such Manner as to Raise Serious Constitutional Questions Unless Such Construction is Unavoidable

There is applicable here the well-established canon of construction that it is the duty of the courts "to construe the statute, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score.' As stated by Mr. Justice Jackson in United States v. Five Gambling Devices, 346 U.S. 441, 448, 98 L. Ed. 179, 186 (1953):

"The principle is old and deeply imbedded in our jurisprudence that this Court will construe a statute in a manner that requires decision of serious constitu

13 These cases are cited in note 5 to the opinion. 327 U.S. at 99. 90 L. Ed. at 558.

14 The Minker case is discussed in detail subsequently. Infra., p. 30.

15 See Interstate Commerce Commission v. Oregon Washington Railroad & Navigation Co., 288 U.S. 14, 40, 77 L. Ed. 588, 604 (1933).

tional questions only if the statutory language leaves no reasonable alternative. United States v. Rumely, 345 U.S. 41, 97 L. Ed. 770, 73 S. Ct. 543. This is not because we would avoid or postpone difficult decisions. The predominant consideration is that we should be sure Congress has intentionally put its power in issue by the legislation in question before we undertake a pronouncement which may have far reaching consequences upon the powers of the Congress or the powers reserved to the several states. To withhold passing upon an issue of power until we are certain it is knowingly precipitated will do no great injury, for Congress, once we have recognized the question, can make its purpose explicit and thereby necessitate or avoid decision of the question."

If the Act is construed to empower the Commission to direct its coercive processes against the states, it not only strikes at the "delicate balance" between federal and state powers but brings into issue serious constitutional questions with respect to the validity of the Act. These questions are discussed subsequently.'

16

F. Other Considerations Relating to the Construction of the Civil Rights Act

Two other rules of law militate against any construction of the Civil Rights Act which would affirm the power of the Commission to order these respondents to appear and to produce records of the State of Alabama. These rules are: (1) that judicial officers are immune from being called to account for their judicial acts and (2) that documents in custodia legis cannot be reached by the process of other courts. These rules of law relate more to power than the

statutory construction and are considered separately."

III. THE POWER OF THE COMMISSION TO SUBPOENA "WITNESSES" CANNOT BE CONSTRUED TO INCLUDE THE POWER TO SUBPOENA PERSONS WHO ARE THEMSELVES THE SUBJECTS OF INVESTIGATION

The case of United States v. Minker is determinative with respect to these respondents. In that case, § 235 (a) of the Immigration Act of 1952 vested immigration officers with power to subpoena "the attendance and testimony of witnesses" in denaturalization investigations. The United States Supreme Court held that the word "witnesses" could not he construed to include persons who themselves were the subjects of the investigation. The court said:

"We come then to the question upon which the two Courts of Appeals part ways in their construction of § 235(a), namely, whether Salvatore and Joseph Falcone in the one case and Abraham Minker in the other, although each the subject of a denaturalization investigation under § 340.11 of the regulations, were witnesses' within the meaning of the power given to ‘any immigration officer' to require 'by subpoena the attendance and testimony of witnesses' before immigration officers.

"If the answer to the question merely depended upon whether, as a matter of allowable English usage, the word 'witness' may fairly describe a person in the position of Minker and the Falcones, it could not be denied that the word could as readily be deemed to cover persons in their position as not. In short, the word is patently ambiguous: it can fairly be applied to anyone who gives testimony in a proceeding, although the proceeding immediately or potentially involves him as a party, or it may be restricted to the person who gives testimony in another's case.'

19

The court then considered the serious implications of permitting the subpoena power to be used against the subjects of an investigation which could "constitute the first step in proceedings calculated to bring about the denaturalization of citizens" and concluded:

"All these considerations converge to the conclusion that Congress has not provided with sufficient clarity that the subpoena power granted by § 235 (a) extends over persons who are the subject of denaturalization investigations; therefore Congress is not to be deemed to have done so impliedly."

99 20

This holding is directly applicable here. The Commission is obviously proceeding under § 104 (a) of the Civil Rights Act which provides that "the Com