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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.

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 to 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 refused even to appear at the hearing. The lack of a mutually acceptable program 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

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.

6 Indeed, the press has widely reported that Judge Wallace would "jail 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 Generaí Patterson to refuse to cooperate with the Commission in any way.

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the interests of the parties. As we shall demonstrate in the remainder of this memorandum, this view is wholly fallacious. Moreover, it is submitted, the legal and factual issues of this case should be considered in the light of this background: of the uncooperative attitude taken by the respondents as against the constructive approach displayed by the Government.

ARGUMENT

I. THE AUTHORITY OF THE COMMISSION TO SUBPOENA VOTING RECORDS IS
BEYOND QUESTION

A. The legislative power delegated to the Federal Government by the Fifteenth Amendment clearly permits Congress to provide for inspection of voting records in connection with an investigation of alleged discriminatory voting practices. Thorough investigation by the Civil Rights Commission of "allegations

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* that certain citizens of the United States are being deprived of their right to vote and have that vote counted by reason of their color, race, religion, or national origin" is an essential preliminary step in the process of effective enforcement of the rights guaranteed by the Amendment. Accordingly, a provision for such investigation must be considered an integral part of enforcement. And since voting records are a principal source of evidence in any such investigation, legislation providing for access to them is "appropriate legislation” within the meaning of section 2 of the Amendment.'

Moreover, it is clear that Congress has in fact delegated to the Commission the power to inquire into voting records and to issue subpoenas for that purpose. Not only is such a power essential if the Commission is to fulfill its duty of investigating alleged violations of voting rights, but Congress has specifically granted to the Commission the power to issue subpoenas to compel the production of "written or other matter," and federal courts have been granted jurisdiction to enforce these subpoenas. The states must, of course, yield to this expression of the will of Congress, since the Act was passed in proper exercise of a power specifically delegated to the federal government. See Ex parte Siebold, 100 U.S. 371. Accordingly no state law can stand as a barrier to the functions of the Commission. See Kohl v. United States, 91 U.S. 367, 374.

B. Nor is there any merit to respondents' suggestion that enforcement of the subpoenas would constitute an invasion of the sovereignty of the state. The concept of state sovereignty is embodied in the Tenth Amendment, which provides that these powers are reserved to the states which have not been "delegated to the United States by the Constitution, nor prohibited by it to the states." In other words, where some other Article of the Constitution or an Amendment either delegates to the United States a power or function or prohibits the states from exercising a power or function, the reservation clause of the Tenth Amendment becomes inapplicable.

This case involves the very powers which the Constitution says are not reserved to the states. Section 1 of the Fifteenth Amendment "prohibited *** to the states" the power to deny or abridge the right of citizens of the United States to vote on account of race, color, or previous condition of servitude. Section 2 of the same Amendment "delegated to the United States" the power to enforce this prohibition by "appropriate legislation." See United States v. Reese, 92 U.S. 214, 218; United States v. Darby, 312 U.S. 100, 124; Fernandez v. Wiener, 326 U.S. 340, 362.

The fact that state voting records are here involved does not alter these prin. ciples. In several decisions the federal courts have upheld the right of a grand jury investigating possible violations of federal voting statutes to subpoena or impound ballots, voting machines, registration books, and other voting records. For example, in In re Cohen, 62 F. 2d 249 (C.A. 2), the President of the Board of Elections of New York City was held in contempt for refusal to produce voting records and machines to a federal grand jury. His defense was based upon the sovereign status of the State of New York and the Tenth Amendment. On

Civil Rights Act of 1957, Sec. 104 (a)(1), 71 Stat. 633, 42 U.S.C. 1975c(a)(1).

In enacting the legislation here considered Congress may also be said to have acted pursuant to its power "to enforce, by appropriate legislation.' the Fourteenth Amendment right to "equal protection of the laws" and, with respect to the election of federal officials. to pass "necessary and proper" legislation for the execution of Articles I and II of the Constitution. However, in view of the explicit and dispositive applicability of the Fifteenth Amendment, and in view of the similarity of the arguments which can be made with respect to these other two constitutional powers, it would seem unnecessarily redundant ot dwell on the latter.

appeal, the conviction was upheld. The Court of Appeals pointed out that (62 F.2d at 251):

"These records are relevant to any investigation by a federal grand jury as to whether citizens have been deprived of their right to vote, or as to whether their votes have not been counted. Such records are the very strongest evidence of the voted and how many votes were counted."

The court noted that New York law did not prevent the production of the records and machines, but went on to state that, in any event, "so far as the statutes of the United States forbid interference with the right of suffrage *** they are paramount and supersede any state legislation that is conflicting." See also, United States v. Ponder, 238 F. 2d 825 (C.A. 4), and In re Nessey, 45 Fed. 629 (N.D. Ark.), These cases indicate that where voting records are relevant to a federal investigation, a claim that state law forbids production will be of no avail, the states have no basis for refusing to produce voting records when needed for the purpose of effectuating a constitutional objective of the Congress. Clearly, as indicated above, this would be true with respect to the proposed investigation by the Civil Rights Commission.

There is no basis for distinguishing in this respect between the powers of a grand jury and those of an independent commission. In either case, the authority to investigate is derived from the will of Congress. It is quite clear that Congress has authority to delegate the subpoena power to such commissions. E.g., I.C.C. v. Grimson, 154 U.S. 447 (upholding power of federal court to issue order compelling obedience to I.C.C. subpoena): cf. Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 510 (subpoena power granted to Secretary of Labor for use in investigations into violations of the Walsh-Nealey public contracts act held "clearly within the limits of Congressional authority"). In each case the only pertinent consideration is whether the material sought is relevant to the investigation the body has been authorized to conduct. Clearly, voting records are relevant to the investigation which the Civil Rights Commission has undertaken.

II. NEITHER JUDGE WALLACE NOR THE REGISTRARS ARE EXCUSED FROM COMPLIANCE BY VIRTUE OF JUDICIAL OR QUASI-JUDICIAL STATUS

A. General

It has been demonstrated in Point I above that the State of Alabama has no power to interfere with the legitimate Federal function which the Commission seeks to perform. This proposition applies equally to all branches of the state government, including the Judiciary. There is no concept of judicial privilege or immunity or of separation of powers which militates to the contrary.

Legislation enacted pursuant to the Federal Constitution is binding on all state officials; it applies to any arm of the state body politic, including the courts. In Ex parte Virginia, 100 U.S. 339, the court articulated in the following terms the rule that the meaning of "state" in the Fourteenth Amendment comprehends the totality of state government (100 U.S. at 34e):

"[It has] reference to actions of the political body dominated a State, by whatever instruments or in whatever modes that action may be taken. A state acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws." [Emphasis supplied.]

The reach of the Fifteenth Amendment is of course equally broad, and legislation enacted by Congress with a view to enforcing that Amendment is equally binding on all arms of the state, including the Judiciary.

In a variety of situations it has been held that state action, in whatever form, will not be permitted to prevent the exercise of federal power. For example, in United States v. Peters, 5 Creech 115, the Court held that reliance on a state statute could not justify a refusal to abide by a federal court judgment. Accord, Harrison v. St. Louis & San Francisco R.R., 232 U.S. 318, 328. Similarly, in Dietsch v. Huidekoper, 103 U.S. 494, it was decided that a federal court could enjoin the enforcement of a state court judgment in order to protect its own prior judgment in the same matter. In Faubus v. United States, 254 F. 2d 797 (C.A. 8), cert. denied, U.S. (October 13, 1958), it was held that the Governor of Arkansas could be enjoined from interfering with a federal court order. Accord, Sterling v. Constantin, 287, U.S. 378. And the House of Representatives,

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in connection with its investigation of the Hayes-Tilden election, held state officials in contempt and jailed them for their refusal to surrender state election records, notwithstanding the claim that these officials had quasi-judicial capacity and that their actions were not subject to review by the Federal authorities. Eberling, Congressional Investigations (1928), pp. 241–245; Cong. Rec. 44th Cong. 2d Sess., pp. 668, 677, 1065, 2143. Thus, it is beyond question that a legitimate federal function is immune from executive, legislative, or judicial interference by the state. If neither a state legislature's enactment, nor a state court's judgment, nor a state governor's or other state official's actions, can stand in the way of a federal court order, then a state court judge should not have the power to do so.

These rules also dispose of the suggestion that because of the doctrine of the separation of powers as Executive commission has no authority to interfere with the functions of a member of the Judiciary. As is demonstrated on pp. 11-17, infra, no interference with a judicial function of the respondent is here involved. But in any event, the doctrine of the separation of powers applies only as between branches of the same sovereign. It cannot be carried over into the area of conflicts between a branch of the Federal Government with a different branch of the state government. To demonstrate that this is true one need only to contrast Kendall v. United States, 12 Pet. 522, with Faubus v. United States, supra, and Sterling v. Constantin, supra. In the Kendall case, the Supreme Court stated (12 Pet. 610) that the President of the United States is beyond the reach of any other branch of the Federal Government." Undoubtedly, this is so because of the separation of powers. On the other hand, both Governor Faubus of Arkansas and Governor Sterling of Texas were held amenable to process issued by a federal court. Since the separation of powers doctrine which bars the federal courts from interfering with the President cannot be extended to confer a like immunity upon a state governor, there is no reason to suppose that the same doctrine, where it prohibits a Federal Executive agency from interfering with a federal court, does immunize state judges. In both instances, the branches of the Federal Government are held immune from each other because of their co-equal status; but in both instances, too, the immunity is not extended to a branch of government which (1) is a part of another sovereign, and (2) by virtue of Art. VI of the Constitution is made inferior in any sphere in which both sovereigns legitimately operate.

In sum, it is clear that judicial status does not confer a privilege upon a state official to disregard the positive command of the Fifteenth Amendment; and that such status does not give immunity from inquiry duly authorized by Section 2 of the Amendment. In case of conflict between functions conferred by the Amendment and functions delegated by the state, the Amendment prevails.

Beyond that, however, as concerns the instant case, no conflict actually exists between any judicial function of the state of Alabama and the duties of the Commission.

B. The Status and Functions of Judge Wallace

Although it is sometimes said that a judge is immune from responsibility for acts done in his official capacity," the true rule is that only judicial acts and decisions are not subject to review or control. Bradley v. Fisher, 13 Wall. 335. It must be clearly borne in mind that for purposes of this case no judicial act or decision of Judge Wallace need be questioned. It may be assumed that the order impounding the election records of Bullock and Barbour Counties was entirely proper in every respect." For the Commission subpoena is not for present purposes attacking the legality of the "judicial" act of issuing the order of impoundment. Rather what is involved here is the issue of whether the records, having been impounded, should now be made available for access by the Commission. This issue, while it is a judicial issue, is not one that is within the

Except by way of impeachment.

E.g., Gay v. Heller, 252 F. 2d 313 (C.A. 5); Tate v. Arnold, 223 F. 2d 782 (C.A. 8); Peckham v. Scanlon, 241 F. 2d 761 (C.A. 7).

10 Although there is nothing in respondent Wallace's motion to indicate for what purpose the records were impounded. It may well be that the sole or principal purpose was to obstruct and frustrate the function of the Commission. If that was the purpose, then its bad faith nature would certainly subject it to inquiry by this Court irrespective of its judicial character. In the present posture of this case, Judge Wallace has the burden of proving that there was a lawful purpose. If he is unable to do so, his affirmative defense that the records are needed for a legitimate state use must fail at the threshhold.

competence of Judge Wallace to decide. As the Supreme Court stated in Tarble's Case, 13 Wall. 397, 407:

"Whenever, therefore, any conflict arises between the enactments of the two sovereignties, or in the enforcement of their asserted authorities, those of the National government must have supremacy until the validity of the different enactments and authorities can be finally determined by the tribunals of the United States. This temporary supremacy until judicial decision by the National tribunals, and the ultimate determination of the conflict by such decision, are essential to the preservation of order and peace, and the avoidance of forcible collision between the two governments."

In other words, the only judicial issue which must now be decided is whether the records, having been impounded by the state (acting through one of its judges) should be made available for inspection to the Federal Government (acting through a commission established by Congress). That issue is the issue of comity, and it must be decided by this Court." While it may well be a proper judicial function of Judge Wallace to impound records," it is a judicial function of this Court to determine whether impounded records should be made accessible to the Federal Government.

Moreover, Judge Wallace is not being subjected to an accounting for a courtroom or other judicial decision but he is merely being called upon to produce or make available evidence to an investigating commission authorized by Congress.13 As previously indicated, no interference with state proceedings is involved; the compulsory process was issued to him in his capacity as custodian. Cf. Ex parte Virginia, supra (the character of the agent does not determine the character of the function). Accordingly, like all other persons who have relevant information, he has on obligation to make it accessible upon demand to the authorized agency."

14

Even in the absence of a federal interest, the general duty to furnish evidence would necessitate production of the records. See Wigmore, Evidence (3rd ed.) §§ 2372 (3), 2373, 2192, 2193. In State v. Donovan, 129 N.J.L. 478, 488, 30 A. 2d 421, 427, the court held that inferior-court judges are subject to subpoena by a higher court, citing White Mountain Freezer Co. v. Murphy, 78 N.H. 308, to the effect that:

"The duty rests upon every citizen to disclose, when called upon, facts within his knowledge essential to the administration of justice. Judges are not exempt from the performance of this duty and as a class are necessarily impressed with its importance."

Any possible inconvenience to Judge Wallace in the performance of his official duties can of course be avoided by an appropriate order of this Court which takes into account the obligations of both the Judge and the Commission.

C. The status of the registrars

Obviously if, as demonstrated above, Judge Wallace may be compelled to comply with the subpoena, notwithstanding his judicial position, then the registrars have no basis for objection on the ground that they are judicial officers. But, in any event, it is quite clear that under Alabama law the registrars are not judicial officers, nor, perhaps even more to the point, do they perform judicial functions.

It is true that Alabama Code 1940, Title 17, Section 24, provides that "registrars are judicial officers and shall act judicially in all matters pertaining to the registration of applicants." Amendment XCI to Section 181 of the Alabama Constitution of 1901, captioned "Voters' Qualification Amendment" contains a proviso that members of the board of registrars "are hereby constituted and declared to be judicial officers, to judicially determine if applicants to register have the qualifications hereinabove set out." "

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11 The problem of comity is discussed in Point III, infra.

12 Although there is some doubt even on that score. See Title 13, Section 124 of the Alabama Code.

13 The subpoena also appears to contemplate the eliciting of testimony from Judge Wallace. Any objection that the testimony sought relates to matters having to do with the performance of a judicial function could be raised at the hearing. However, there is no reason to assume that any question subject to this objection would be asked. Compliance with the subpoena duces tecum would require no testimony.

14 Cf. In re Investigation of Circuit Judge, 93 So. 2d 601 (Sup. Ct. Fls.) wherein the court decided that a Bar disciplinary committee could issue a subpoena to a circuit judge for the purpose of an investigation within its authority.

16 This Amendment was adopted in 1951 after the previous so-called Boswell Amendment was set aside in Davis v. Schnell, 81 F. Supp. 872 (S.D. Ala.), aff'd, 336 U.S. 933.

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