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CIVIL RIGHTS-1959

CIVIL RIGHTS-1959

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soch facts the case of United States v. Kleinman, 107 F. Supp. 407 (D.D.C. 1952)
is directly in point. In that case the defendants were indicted for refusing to
testify before a Senate Committee. Their only ground for such refusal was
their “ 'constitutional rights' would be violated if compelled to testify while
being televised, with newsreel cameras and other apparatus' in operation." The
trial was before the court without a jury, and it was held that the refusal to
testify was justified. The court said:

"In the cases now to be decided, the stipulation of facts discloses that there were, in close proximity to the witness, television cameras, newsreel cameras, news photographers with their concomitant flashbulbs, radio microphones, a large and crowded hearing room with spectators standing along the walls, etc. The obdurate stand taken by these two defendants must be viewed in the context of all of these conditions. The concentration of all of these elements seems to me necessarily so to disturb and distract any witness to the point that he might say today something that next week he will realize was erroneous. And the mistake could get him in trouble all over again." **

It is true that the rules of the Commission provide that a witness may object to being subjected to such indignities, but such objection itself must apparently be made in the presence of the cameras. Furthermore, we call to the court's attention that at the hearing to which respondents were summoned, although there was room for cameras, newsmen, spectators, and a counsel table for the Commission, no provision at all was made for counsel for the witnesses. Coun. sel for the witnesses simply had to take their place among the spectators.

VII. EVEN IF THIS COURT HAS JURISDICTION TO COMPEL STATE OFFICIALS TO TESTIFY

AND TO DELIVER STATE RECORDS, THE JURISDICTION SHOULD NOT BE EXERCISED

certainly apply to protect the conduct of a state's business by its officials. While we concede that the Fourth Amendment is not designed to protect a state, surely under our federal system, and in view of the Tenth Amendment to the United States Constitution, the several states are protected from unreasonable and burdensome searches into their papers, records, and confidential memoranda to the same extent as private corporations created under their authority.

Second, the individual respondents are entitled to protection against vague, unrestricted and broad questioning concerning the way in which they perform their duties with relation to the qualification of voters. They may well have acted in good faith with respect thereto, believing they fairly applied state law without violating the federal constitution or any criminal statutes enacted pursuant thereto. Nevertheless, they may find their testimony before the Colna mission furnished to the United States Attorney General for action under the criminal statutes of the United States. In view of such possibility, they are entitled to know the precise line of inquiry so as to have some standard by which to judge whether the questions posed to them are related to any matters within the congressional directive to the Commission. The problem involved has been well stated in Watkins v. United States, 354 U.S. 178, 208, 1 L. Ed. 2d 1273, 1296 (1957):

“The problem attains proportion when viewed from the standpoint of the witness who appears before a congressional committee. He must decide at the time the questions are propounded whether or not to answer

. As the Court said in Sinclair v. United states, 279 U.S. 263, 73 L. ed. 692, 49 S. Ct. 268, the witness acts at his peril. He is' * * * bound rightly to construe the statute.' Id. 279 U.S. at 299. An erroneous determination on his part, even if made in the utmost good faith, does not exculpate him if the court should later rule that the questions were pertinent to the question under inquiry:

"It is obvious that a person compelled to make this choice is entitled to have knowledge of the subject to which the interrogation is deemed pertinent. That knowledge must be available with the same degree of explicitness and clarity that the Due Process Clause requires in the expression of any element of a criminal offense. The 'vice of vagueness' must be avoided here as in all other (.rimes."

The proceeding in the case at bar could not culminate in a criminal prosecution for contempt of Congress. Nevertheless, if the respondents were held in civil contempt and imprisoned for failure to obey the broad directive of the court or to answer questions outside the proper scope of the Commission's inquiry, they would be deprived of liberty without due process of law, just as in the Watkins case. The rationale of the Watkins case is that it is a denial of due process to place a witness in the intolerable position of having to speculate at what point he becomes entitled to refuse to answer questions of a sweeping nature relating to a vague area of inquiry.

The respondents herein have both personal rights and rights as judicial The court's order is equally broad. The questions which were propounded by

officers of Alabama. The subpoenas directed to them are broad and unrestricted.
the Commission at its hearing show that the Commission, without informing
the witnesses of any specific complaints, intends to inquire into motives, reasons,
basies of judicial decision, and the mental processes by which the respondent
registrars passed upon applications for registration as voters. The application
of the United States Attorney General and the supporting affidavit of Gordon
than any reasonable interpretation of $ 104(a) (2) would permit.
Tiffany as Staff Director show an intention to pursue an inquiry much broader

It is submitted on the authority of the Watkins case, that to require respond
in contempt for refusal, ishi deniala on the due process guaranteed by the Fifth
Amendment.
VI. A WITNESS CANNOT BE COMPELLED TO APPEAR AND TESTIFY AT A HEARING AT

The authority granted to the District Courts by Section 105(g) of the Act is not mandatory. District courts have broad judicial discretion in this as in proceedings for the enforcement of administrative subpoenas, to refuse issuance or to modify the terms of the order.

The general rule is stated in 8 Cyclopedia of Federal Procedure, 26.19 as follows:

"In such proceedings, the court possesses a reasonable discretion, in the exercise of which it may order that copies be furnished, or that examination or inspection be permitted, without requiring that documents or records in question be removed from the place where they are ordinarily kept.”

In N.L.R.B. v. Cudahy Packing Co., 34 F. Supp. 53 (D. Kan. 1940), aff*d, 117 F. 20 692 (10th Cir. 1941), the Court declined to order the company to produce for the Board in Kansas City, Missouri, its payroll and employment records kept at its Kansas City, Kansas plant, but limited the order to a direction that representatives of the Board, together with a representative of the Company, be perinitted to check the files and records at the offices of the Company. The Court said:

**The act says the court shall have jurisdiction to issue an order requiring obedience to the Board's subpoena. It does not say obedience shall be ordered as of course. Certainly the act contemplates that the court will exercise a reasonable discretion. Certainly also, the court has inherent power and authority over its own process to prevent abuse thereof, oppression and injustice.” Id. at 61.

In Application of Walling, 47 F. Supp. 255 (E.D. N.Y. 1942), an application for a subpoena duces tecum to produce books and records was refused, the court instead issuing an order permitting inspection at the respondent's regular place of business during the hours of 2 to 5 p.m. on four days of the week.

The court stated that "the petitioner was assumed to be more interested in obtaining information than in promoting a legal controversy," and

"It was suggested, and with reason as I believe, that if the petitioner could acquire the desired information without the interference with the conduct of the respondent's business that would be entailed by the production of an impressive array of its records at a comparatively distant office, the ends of justice to both the petitioner and the respondent would be served. In other words, that the power of subpoena was not arbitrarily to be enforced, if it had been needlessly invoked." Id. at 256.

WHICH HE WILL BE SUBJECTED TO TELE

PHOTOGRAPHERS, LARGE CROWDS, AND THE LIKE was more in the character of a Roman circus than of a bona fide fact finding

The proceeding at which respondents were summoned to appear and testify hearing. The room in which the Commission sat was crowded with television and newsreel cameras, news photographers, and a mob of spectators. Under

ISION AND NEWSREEL CAMERAS, NEWS

7 107 F. Supp. at 408.

* 18 U.S.C. 8 242.

ch facts the case of United States v. Kleinman, 107 F. Supp. 407 (D.D.C. 1952) directly in point. In that case the defendants were indicted for refusing to stify before a Senate Committee. Their only ground for such refusal was eir "constitutional rights' would be violated if compelled to testify while ing televised, with newsreel cameras and other ‘apparatus' in operation." The ial was before the court without a jury, and it was held that the refusal to stify was justified. The court said:

"In the cases now to be decided, the stipulation of facts discloses that there ere, in close proximity to the witness, television cameras, newsreel cameras, ews photographers with their concomitant flashbulbs, radio microphones, a arge and crowded hearing room with spectators standing along the walls, etc. The obdurate stand taken by these two defendants must be viewed in the conext of all of these conditions. The concentration of all of these elements seems o me necessarily so to disturb and distract any witness to the point that he night say today something that next week he will realize was erroneous. And the mistake could get him in trouble all over again." "

It is true that the rules of the Commission provide that a witness may object to being subjected to such indignities, but such objection itself must apparently be made in the presence of the cameras. Furthermore, we call to the court's attention that at the hearing to which respondents were summoned, although there was room for cameras, newsmen, spectators, and a counsel table for the Commission, no provision at all was made for counsel for the witnesses. Counsel for the witnesses simply had to take their place among the spectators.

VII. EVEN IF THIS COURT HAS JURISDICTION TO COMPEL STATE OFFICIALS TO TESTIFY AND TO DELIVER STATE RECORDS, THE JURISDICTION SHOULD NOT BE EXERCISED

The authority granted to the District Courts by Section 105 (g) of the Act is not mandatory. District courts have broad judicial discretion in this as in proceedings for the enforcement of administrative subpoenas, to refuse issuance or to modify the terms of the order.

The general rule is stated in 8 Cyclopedia of Federal Procedure, § 26.19 as follows:

"In such proceedings, the court possesses a reasonable discretion, in the exercise of which it may order that copies be furnished, or that examination or inspection be permitted, without requiring that documents or records in question be removed from the place where they are ordinarily kept."

In N.L.R.B. v. Cudahy Packing Co., 34 F. Supp. 53 (D. Kan. 1940), aff'd, 117 F. 2d 692 (10th Cir. 1941), the Court declined to order the company to produce for the Board in Kansas City, Missouri, its payroll and employment records kept at its Kansas City, Kansas plant, but limited the order to a direction that representatives of the Board, together with a representative of the Company, be permitted to check the files and records at the offices of the Company. The Court said:

"The act says the court shall have jurisdiction to issue an order requiring obedience to the Board's subpoena. It does not say obedience shall be ordered as of course. Certainly the act contemplates that the court will exercise a reasonable discretion. Certainly also, the court has inherent power and authority over its own process to prevent abuse thereof, oppression and injustice." Id. at 61.

In Application of Walling, 47 F. Supp. 255 (E.D. N.Y. 1942), an application for a subpoena duces tecum to produce books and records was refused, the court instead issuing an order permitting inspection at the respondent's regular place of business during the hours of 2 to 5 p.m. on four days of the week.

The court stated that "the petitioner was assumed to be more interested in obtaining information than in promoting a legal controversy," and

"It was suggested, and with reason as I believe, that if the petitioner could acquire the desired information without the interference with the conduct of the respondent's business that would be entailed by the production of an impressive array of its records at a comparatively distant office, the ends of justice to both the petitioner and the respondent would be served. In other words, that the power of subpoena was not arbitrarily to be enforced, if it had been needlessly invoked." Id. at 256.

37 107 F. Supp. at 408.

In Goodyear Tire & Rubber Co. v. N.L.R.B., 122 F. 2d. 450 (6th Cir. 1941) the court reversed a sweeping order of the District Court enforcing a wholesale subpoena of the N.L.R.B. for the production of employment records, saying:

"We differ with the District Court in its view that the only question presented by the Board's application is whether the subpoenas were regularly issued and duly served in accordance with the Board's statutory power, and that there has been a refusal to obey. The statute does not require the District Court to issue the order, but simply gives it jurisdiction to issue. The enforcement of the subpoena is thus confided to the discretion of the District Court, which is to be judicially exercised. We think that the review in this case extends no further than the determination as to whether or not there was an abuse of its discretion. Applying this rule, we think that it was open to the company to contend that the documents called for do not relate to the particular matter in question; that this contention made in the answer raises an issue of fact for determination by the court, and if determined in its favor, that the application of the Board as to documents found not so to relate should be dismissed upon the merits. Interstate Commerce Commission v. Brimson, supra, 154 U.S. at page 490, 14 S. Ct. 1125, 38 L. Ed. 1047." Id. at 453.

In Gretsky v. Basso, 136 F. Supp. 640 (D. Mass. 1955) the court limited an order on application of the Bureau of Internal Revenue Service for a subpoena duces tecum, to a right to inspect records on the premises.

In U.S. v. Brody, 144 F. Supp. 749 (D. Mass., 1956), affd., 243 F 2d 378 (1st Cir.), cert. den., 354 U.S. 923, 1 L. Ed. 2d 1438 (1957), the court commented on its authority with respect to an order requested by the Secretary of the Treasury as follows:

"The powers given to the district court are expressed in broad terms. Under § 7604 (b) 'the judge *** shall have power to make such order as he shall deem proper, not inconsistent with the law for the punishment of contempts, to enforce obedience to the requirements of the summons ***.' Can it be doubted that under this clause the court has power to issue an order, following a refusal to obey a summons issued by a delegate, recasting the witness' obligation in less onerous terms?" Id. at 751.

The application of the Attorney General to this court invokes the discretionary equity powers of the court. The order requiring the attendance of respondents and the delivery of state records is in the nature of a mandatory injunction, and even if the court has the power to issue such order, the question of whether or not to do so is within the sound discretion of the court.

In the consideration of its responsibility in this case, the court will bear in mind these extraordinary facts:

The Commission's subpoena, and the order requested of this court, would remove from the bench and from his jurisdiction the sole Judge of a judicial circuit of the state, and detain him at the uncontrolled will of the Commission or even a fractional minority or "subcommittee”, without consideration or regard for the effect in depriving the public of the circuit of recourse to customary judicial remedy and procedure.

The order would likewise require the removal from their official jurisdictions and functions of respondent registrars, also judicial officers of the state.

The order would require removal and delivery to the Commission of official records of the State, in violation of the law requiring the records to be retained at all times at their official place of custody.

The order would require the removal and delivery in violation of state law, of multitudinous official records not relevant to any specific complaint or legitimate inquiry, and far in excess of the capacity of the Commission to examine or process within the time allotted for the hearing, or any reasonable time.

To the extent that the proposed order would require the testimony of witnesses before a minority of the Commission, it would deprive the witnesses of the minimal protection of the judgment of the Commission, of which a quorum is four members, with respect to whether proposed testimony might be defamatory or incriminating or should be impounded.

The requirement of appearance by these respondents at Montgomery, subjected to television broadcasts and like flamboyant publicity contrived and staged by the Commission or its professional publicity agents as in the case of the so-called "hearing" on December 8, 1958, would constitute an abuse of process and a violation of due process of law.

In Railroad Commission v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971 (1941), the Supreme Court held that although there was federal jurisdiction to enjoin the enforcement of an order by the Texas Railroad Commission, such jurisdiction should not be exercised. The court said:

"Few public interests have a higher claim upon the discretion of a federal chancellor than the avoidance of needless friction with state policies * * *” Id. at 500, 85 L. Ed. at 974.

After citing cases in which this principle was applied, the court further said: "These cases reflect a doctrine of abstention appropriate to our federal system whereby the federal courts, exercising a wise discretion,' restrain their authority because of 'scrupulous regard for the rightful independence of the state governments' and for the smooth working of the federal judiciary." Id. at 501, 87 L. Ed. at 975.

And in the case of Alabama Public Service Commission v. Southern Ry., 341 U.S. 341, 349, 95 L. Ed. 1002, 1009 (1951), in which the court held that federal jurisdiction should not be exercised, the court said:

"Equitable relief may be granted only when the District Court, in its sound discretion exercised with the 'scrupulous regard for the rightful independence of state governments which should at all times actuate the federal courts,' is convinced that the asserted federal right cannot be preserved except by granting the 'extraordinary relief of an injunction in the federal courts.' Considering that '[f]ew public interests have a higher claim upon the discretion of a federal chancellor than the avoidance of needless friction with state policies,' the usual rule of comity must govern the exercise of equitable jurisdiction by the District Court in this case."

A concise statement of the rule is found in 11 Am. Jur., Const. Law, § 174, at p. 870:

"Among the matters which are implied in the Federal Constitution, although not expressed therein, is that the National Government may not, in the exercise of its powers, prevent a state from discharging its ordinary functions of government. This corresponds to the prohibition that no state can interfere with the free and unembarrassed exercise by the Federal Government of all powers conferred upon it. In other words, the two governments, national and state, are each to exercise its powers so as not to interfere with the free and full exercise of the powers of the other. Therefore, whenever the Federal power is exerted within what would otherwise be the domain of state power, the justification of the exercise of the Federal power must clearly appear."

Under these circumstances, the proposed wholesale seizure and removal of public records and interference with the state's judicial process and officers cannot reasonably be viewed as necessary or appropriate to a bona fide investigation of facts. It is submitted that this court should refuse to sanction or assist any such proposals, not only as beyond the intent or power of Congress, but as a matter of comity, in the exercise of a wise discretion.

This conclusion is overwhelmingly emphasized by the essentially non-functional and admittedly political character and purpose of the Commission, on the one hand, as contrasted with the vital judicial and public functions of the state officers for whom these sweeping subpoenas are sought.

The punitive and necessarily inflammatory effect of the procedure upon the individuals, in subjecting them to the degrading part of side-show puppets, as well as the availability of all testimony to the Attorney General for purposes of prosecution, are themselves sufficient ground for refusing to sanction this effort to exalt over the judiciary of the State of Alabama a temporary investigating agency of the Federal executive, apparently wholly insensitive to the implications and consequences of its actions in creating irremediable friction and resentment in a crucial area of our federal system.

Respectfully submitted.

JOHN PATTERSON,
Attorney General of Alabama,
For All Respondents.
CHAUNCEY SPARKS,

For Respondent George C. Wallace, as Judge of the Third Judicial Circuit of Alabama.

Jos. F. JOHNSTON,
On Behalf of the Alabama State Bar, as Amicus Curiae.

DECEMBER 31, 1958.

40361-59-pt. 4- 44

CIVIL RIGHTS-1959

CIVIL RIGHTS—1959

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CERTIFICATE OF SERVICE

I hereby certify that I have filed a copy of the above and foregoing brief on the Honorable Hartwell Davis, United States District Attorney for the Middle District of Alabama, Attorney of Record for the applicant prior to the fling hereof.

Of Counsel for Respondents.

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

(Civil Action No. 1487-M) IN RE: GEORGE C. WALLACE, W. A. STOKES, SE., GRADY ROGERS, E. P. LIVINGSTON,

M. T. EVANS, AND J. W. SPENCER OPPOSITION TO MOTIONS TO VACATE AND TO QUASH Comes now the United States by its attorneys and opposes respondents' motions to vacate the order of this Court and to quash subpoenas, and in support of such opposition respectfully submits the following.

for in the subpoenas heretofore served on each of them and to give testimony before said Commission, or authorized sub-committee thereof, touching on the aforesaid matter, * * *"

Subsequently, motions to vacate the order of December 11 and to quash the subpoenas issued by the Commission were filed on behalf of the respondents. In substance, the following contentions are made in these motions: Enforcement of the subpoenas would constitute an invasion of state sovereignty and of the functions of the state; it would violate the principle of comity; and it would constitute an improper inquiry into judicial aets; this Court is without jurisdiction ; state law forbids the removal of the records sought from the county in which they are located; the registrars no longer have custody of the records either because they resigned or because the records were impounded; Judge Wallace, who impounded the records, is not amenable to process because he is a judicial officer ; the registrars, too, are judicial officers. It should be pointed out that respondents do not contend that the records here involved are private or confidential. Nor is it alleged for what purpose Judge Wallace impounded the records or that there was any purpose to the impounding order or the resignation of the registrars other than to obstruct the functions of the Commission."

On December 17, 1958, this Court postponed the date and time for the appearance of respondents before the Commission to January 9, 1959 at 10:00 A.M. It was further ordered that the cause be set for hearing on January 5, 1959.

STATEMENT OF Facts On October 23, 1958, the Commission on Civil Rights, an agency of the Federal Government, created by Public Law 85-315, 85th Cong., 2a Sess, announced that it would hold hearings in Montgomery, Alabama, on December 8, 1958, to investigate complaints by citizens of the United States concerning deprivations of the right to vote by reason of race or color. It was further announced that voting records of several counties of the State of Alabama would be sought for use in these hearings. This announcement was widely publicized in the press in Montgomery, in Alabama generally, and throughout the United States."

On October 21, 1958, two agents of the Commission, who had been directed by the

Commission to inspect voting records in Alabama, requested the respondent E. P. Livingston, registrar of Macon County, to grant them access to the records maintained by him. This request was refused. On the following day it was reported that the refusal had been made on the advice of Attorney General John Patterson, and that “Patterson also advised other Alabama boards to close their registration books to agents of the Civil Rights Commission." * Accordingly

, the Commission made no further informal requests for access to voting records in the state.

On or about October 29, 1958, and on or about November 21, 1958, respondent George C. Wallace, Judge of the Third Judicial Circuit of the State of Alabama, impounded the voting records of Bullock and Barbour Counties

, two of the counties which were the object of the Commission investigation. Subsequent thereto, on December 1 and 2, 1958, the five registrars named in this suit were served with subpoenas directing

them to appear before

the Commission and to bring certain voting records. Judge Wallace was served with a similar subpoena on December 4, 1958.

On December 3, 1958, the Commission held its hearing in Montgomery: Judge Wallace did not appear. The five registrars named in this suit appeared but for fused to give testimony under oathanat Falled to produce the records called for in the subpoenas. On application by the Attorney General of the United States

, this Court, on December 11, 1958, entered an order requiring each of the site spondents to appear before the Commission or any authorized sub-committee

THE GOVERNMENT'S POSITION
It is important to state at the outset precisely what it is the Government
is and is not attempting to do. The Government has no intention or desire

interfere with a legitimate use of any of the voting records. It is and always has been willing to accommodate its interests with the legitimate interests of the State. It has never sought and it does not now seek permanent custody of the records. It is our position that there is no reason why the interests of both the Commission and the State cannot be served without interference with the functions and responsibilities of either. If the respondents are acting in good faith, a mutually acceptable arrangement can be worked out guaranteeing to each side such access to the documents in question as not to interfere with any legitimate needs of the other side.

The respondents to date have made no effort whatever to cooperate in good faith with the Commission or its agents. The fact is that the five respondent registrars refused to be sworn and testify and that respondent Wallace re fused even to appear at the hearing. The lack of a mutually acceptable pro gram of access to the records is directly attributable to this wholly negative and obstructive attitude of the respondents. By their refusal to cooperate either before or at the hearing the respondents have made it impossible for the Commission to propose a suitable arrangement which would protect the legitimate rights of both sides. This lack of agreement in turn made necessary the issuance of the subpoenas and the instant court proceeding. Be it emphasized that the Federal Government is willing, as it always has been, to make appropriate arrangements with the state officials to insure whatever mutual accommodation of interests may be equitable. Moreover, we would not oppose such reservation or limitation of the order of this Court or the subpoenas issued by the Commission as this Court might deem necessary to protect the legitimate interests of the state, if at the same time the Commission and its agents would be guaranteed reasonable access to the voting records. In short, the Government is willing to make every reasonable effort to avoid interference with the legitimate functions of the state. In fact, the position of the Government is designed to avoid and eliminate interference and conflict.

On the other hand, the pleadings filed on behalf of the respondents indicate a reliance on the position (1) that they are immune from process issued by this Court and by the Commission, and (2) that they need make no effort to reconcile

October 24, 1958 (p. 14, cols. 2-4).

1 E.O., Montgomery Advertiser, October 24, 1958 (headline story); New York Times, October , 1958.

2 Montgomery Advertiser, October 22, page 1, cols. 6–8. See also Birmingham Neros, Montgomery Advertiser (October 24, 1958, page 1):

“While the Commission has hoped that it might be able to collect the facts necessary for a complete report on voting complaints received from the state of Alabama through the cooperation of local and state officials, its field representatives on Monday were denied access to registration records by Macon County oficials acting on the advice of the Attorney General of Alabama."

To this effect is the following statement made by the Commission and reported by the

Some of the allegations, such as that compliance with the subpoenas would work a hardship because the records are too voluminous or because Judge Wallace has other pressing duties are factual matters to be determined at the hearing. The fact that this Court has granted a hearing disposes of the contention that the order should not have been entered ex parte. Indeed, the press has widely reported that Judge Wallace would "jall any Civil Rights Commission Agent who tries to get voter registration records he has impounded." See Alabama Journal, December 5, 1953, Page 1, Col. 1-2; see also Montgomery Advertiser, December 6, 1958, Page 1, Col. 5-8. And the registrars were advised by Attorney General Patterson to refuse to cooperate with the Commission in any way.

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