Earl Warren: Number 549, John A. Hannah et al., Appellants, versus Margaret M. Larche et al. And Number 550, John A. Hannah et al. versus J. A. H. Slawson et al. Judge Walsh, you may continue your argument.
Lawrence E. Walsh: Mr. Chief Justice, may it please the Court. I have very little to add. I would like to correct one statement which I made yesterday in answer to Mr. Justice Black as to the maximum sentence for contempt under this Act. I overlooked the fact that Section 151, which is on page 66 of the printed record, applies to the entire Act. That Section is in part 4 which the Department of Justice deals with and I had overlooked that it puts a six-month limit on any sentence for contempt and I should like to correct my statement to that effect.
Hugo L. Black: Page 160?
Lawrence E. Walsh: No. Page 60 -- page 66, Your Honor.
Hugo L. Black: Thank you.
Lawrence E. Walsh: It's at the bottom of the page -- that can't be. In the -- in the proviso beginning at line 3 of that Section -- line 4 of that Section.
Earl Warren: What page you say?
Lawrence E. Walsh: Page 66, Your Honor.
Earl Warren: And that -- that's the maximum where he's tried by a jury?
Lawrence E. Walsh: He's tried without a jury, it's less, Your Honor --
Earl Warren: Yes.
Lawrence E. Walsh: 45 days.
Earl Warren: If he -- if tried by a court, the maximum is $300 fine or imprisonment, less than or not to exceed 45 days.
Lawrence E. Walsh: Exactly, Your Honor. That's right, Mr. Chief Justice. In addition to that, Your Honor, I simply like to mention very briefly confrontation and prior apprisal, because as I indicated at the beginning, I don't think the facts of this case raise those issues, but I would just -- inasmuch as the court below became concerned with them, I -- I would like to mention them very briefly. I -- I don't see how confrontation comes in here at all. The Commission wants to put the witnesses on the stand in public. And it's the injunction of the court below that prevents it. The only way confrontation could be an issue would be if the Commission, on secret testimony, issued a defamatory statement about these registrars. Now, the -- the Commission doesn't want to do that and it's limited in its disclosure. It's public disclosure of these witnesses and their identities at the hearing by the injunction below.
Potter Stewart: Judge Walsh -- this --
Lawrence E. Walsh: Yes, Mr. --
Potter Stewart: -- this hearing, of course, was never held, was it --
Lawrence E. Walsh: It was --
Potter Stewart: -- because of the injunction?
Lawrence E. Walsh: Exactly.
Potter Stewart: Does the record show of what kind of a hearing is it going to be?
Lawrence E. Walsh: The record shows in the answer in the Slawson case, that most of the -- that many of the complaining witnesses were going to be called.
Potter Stewart: That is those people who had filed written statements to which they've -- they're under oath.
Lawrence E. Walsh: Yes, sir. And the prototype for the hearing is found in the Civil Rights Commission report on the Alabama hearing which preceded this. And the way it works was that the -- the complaining witnesses are called in the morning. In the afternoon, the Commission holds an executive session as to defamatory witnesses. And after that, the registrars are those who might be expected to explain the problem are called last.
Potter Stewart: Now, at the -- both the opening hearing in the morning and in -- in the executive session in the afternoon, are the -- are these -- are these registrars and other people free to be present with their counsel?
Lawrence E. Walsh: They -- the -- the rules of the Commission, as to the executive session, do not provide for their presence. It provides that they must be furnished a transcript of what the witness said in the executive session. Now, in practicality, the Commission is perfectly willing to have them present because it will save time. They can come there and hear the witness and they can be -- go right on with the public hearing. So that would be the way the Commission would -- would work as a practical matter. But if the -- the -- if the registrar insisted on a written transcript, under the rules of the Commission, he'd be entitled to it.
Felix Frankfurter: Mr. Walsh, you've --
Lawrence E. Walsh: Yes, sir.
Felix Frankfurter: -- indicate that. But would you mind read -- summarizing precisely what the situation under the statute and the implementing rules is regarding the resort to secret -- to executive session, with -- as to the complainant, the kind of witnesses and the complainant in this case were? The officials and non-officials --
Lawrence E. Walsh: The -- the --
Felix Frankfurter: -- that makes any difference.
Lawrence E. Walsh: All right, sir. The -- the complainants in this case, as again the report from the Commission enough shows in summary fashion, were -- were not officials. They were -- they were Negroes who wished to vote. And the --
Felix Frankfurter: I don't mean -- I don't mean the complainants in these suits?
Lawrence E. Walsh: Oh -- oh, you mean the plaintiffs and these are -- that -- that the 20 -- the -- or 17 in the Larche case, are all registrars. The six in the Slawson case are all private citizens.
Felix Frankfurter: Now, what is -- what is the situation as to them in regard to the utilization of executive session as to these people?
Lawrence E. Walsh: As to -- these people, they --
Felix Frankfurter: Not what was done or were supposed to be done --
Lawrence E. Walsh: If what -- what -- I --
Felix Frankfurter: -- or the Commission could do.
Lawrence E. Walsh: Under the rules, there's no provision for calling them in executive session. The rule specified that the executive session is to be used for those who might defame others. That's the stand of -- of the (Voice Overlap) --
Speaker: (Voice Overlap) one of these complainants wanted a public session (Voice Overlap) --
Lawrence E. Walsh: I don't think the complainant's in a position to compel that.
Speaker: -- of the appelant?
Lawrence E. Walsh: No. No, Mr. Justice. The duty of the Commission is to investigate complaints. There's no right established by the statute of any person to have a public hearing on his complaint. The method of investigation is left entirely to the Commission. And in fact, it has only used public hearings, when it has been necessary to compel involuntary testimony or at least in -- in this -- in this matter.
Felix Frankfurter: Well, do I understand beside this (Voice Overlap) --
Lawrence E. Walsh: Yes.
Felix Frankfurter: -- does a -- does a potentially defaming witness, have to say, “I'm going to defame some people?”
Lawrence E. Walsh: No.
Felix Frankfurter: How -- how does this come into --
Lawrence E. Walsh: Oh, oh --
Felix Frankfurter: (Voice Overlap) --
Lawrence E. Walsh: Yes. Well, the complaints are received. The first thing the Commission does is -- is check the formalities of the statute, if they're under oath. It then sends into the field. It's -- well, I'll call in investigators, although they have a -- a better word for it, who go out and interview the complainant. They interview persons in the community, to find out about the complainant. One, does he have voting qualifications? And two, is he a reliable person. They also interview others in the community to find out whether there's any -- any breath to this complaint. Is this a chronic problem? After that preliminary survey, they report back to the Commission and then, it is decided in the light of the statistics that I mentioned earlier and the law of the State, whether this merits further -- further check. And if it does, there's a further interview of these witnesses, in preparation for the hearing, which will disclose whether their testimony's going to be defamatory or not.
Speaker: Is the Commission -- where a defamatory testimony, so-called, is not involved? Does it have discretion to have a whole private hearing?
Lawrence E. Walsh: I don't find that in -- in expressly authorized in the statute. That -- that it may hold a private hearing of its own choice. The statute speaks -- I guess about 58 --
Speaker: The way I read it was, perhaps this is wrong, that in case of defamatory testimony, it's mandatory to hold an executive session and that it was open apparently, one way or the other, for non-defamatory cases.
Lawrence E. Walsh: Well (Voice Overlap) --
Speaker: I don't know what the practice of the Commission.
Lawrence E. Walsh: The practice of the Commission would -- would not be to hold private hearings, except voluntary hearings. For example, they -- they did try to find from these registrars in the presence of their counsel, the information which they sought.
Speaker: Well, what I was thinking of was the situation where a complaining witness said, “Well, I don't want to testify in public. I don't mind giving the Commission information in private, but I don't want to be testifying in public.”
Lawrence E. Walsh: Well, they -- they could certainly take his testimony. I just didn't know whether that would rise to the dignity of a hearing. They --
Speaker: Well, I mean that a private session, a private (Voice Overlap) --
Lawrence E. Walsh: They could have -- they could have private session.
Speaker: They'd have authority to do this?
Lawrence E. Walsh: Yes, sir. And -- and --
Speaker: (Voice Overlap) I assume.
Lawrence E. Walsh: They do. And the --
Felix Frankfurter: (Voice Overlap) --
Lawrence E. Walsh: -- excuse me, Mr. (Voice Overlap) --
Felix Frankfurter: So far the registrar -- so far as a registrar is concerned, he may make accusation against people, which I've come to him to here, say out of the public burdens and what -- and whatever he testifies will always be in public, is that right?
Lawrence E. Walsh: That's right, sir. And just to -- to finish the -- he will answer to Mr. Justice Harlan's question at the bottom of page 63 as the hearing authority in which it says that, “The Commission -- and -- and if we drop down five lines in Subdivision (f), it says “Hold such hearings and act at such times and places of the Commission or other authorized subcommittee may deem advisable.” But the -- the rules of procedure speak in terms of a public hearing. The announcement at the opening of the session of the purpose and all those -- those requirements suggest a public hearing as far as any involuntary appearance is concerned.
Felix Frankfurter: So the real complaint, if I may clearly pursue that -- that real complaint is that these plaintiffs, they're not -- never restricted in having full publicity for whatever they have to say. They -- their complaint is that the protection of defamation not established, it feels so far as the public is concerned, because they have an access to it, is that right? I mean --
Lawrence E. Walsh: That the --
Felix Frankfurter: -- the secret -- there's a complaint and then they made the Commission -- the Commission has heard them towards investigated or whatever the name is (Voice Overlap) --
Lawrence E. Walsh: Will screen out --
Felix Frankfurter: -- and so all this is in -- the reason for it is to protect publicity of charges that has not been established.
Lawrence E. Walsh: Yes. I -- I think I follow the trust. Now, there is a sifting process and complainants who are non-defamatory, that they feel maybe never brought to light. And I -- I suppose that that does happen, now, they conclude that a complainant is -- is unreliable, they are no going to put him on the stand and take time with it. But the -- the plaintiffs in this case, are in no way injured by that. No one ever knows the complaint was made.
Felix Frankfurter: No (Voice Overlap) --
Lawrence E. Walsh: It was not used.
Felix Frankfurter: The reason for nondisclosure is to protect against charges by the people who make defamatory or invidious charges, is that right?
Lawrence E. Walsh: The reason for nondisclosure is to protect the reputations of independent person from reckless charges, yes, sir.
Earl Warren: Judge Walsh, may I -- may I try to clear my --
Lawrence E. Walsh: Yes, sir.
Earl Warren: -- mind to little on this -- on this procedure at these hearings.
Lawrence E. Walsh: Yes, sir.
Earl Warren: As I understand it, there were a number of complainants that form the basis for this proposed hearing.
Lawrence E. Walsh: Exactly.
Earl Warren: And those were persons who claimed that they had been deprived of the opportunity to vote although they had the qualifications.
Lawrence E. Walsh: Yes, sir.
Earl Warren: After what investigations you outlined to us, there was an affidavit filed, is that correct? Filed by these people, setting forth the -- the elements of the complaint they made.
Lawrence E. Walsh: The affidavit was the first step that preceded the investigation.
Earl Warren: Yes. And then -- then the investigation follows? Now, in addition to that, each of these complainants is called before the Commission to testify.
Lawrence E. Walsh: Only if a public hearing is deemed necessary.
Earl Warren: Well, yes.
Lawrence E. Walsh: That's --
Earl Warren: Well, if -- yes, if there is any -- if there is to be any hearing at all, those people who made those affidavits are all called to testify.
Lawrence E. Walsh: Exactly, sir.
Earl Warren: If that's a result of your investigation and as the result of the affidavit, it appears to the Committee that the charge defames anyone. The hearing is in executive session?
Lawrence E. Walsh: Yes, sir. That witness is saved --
Earl Warren: If --
Lawrence E. Walsh: -- until the others have testified. Yes, sir.
Earl Warren: Yes. And if in the judgment of the Commission, it does not defame any individual, then he appears in public?
Lawrence E. Walsh: Yes, sir.
Earl Warren: Now, in the event he appears in executive session. As I understand it, the -- the Commission furnishes the person who is supposedly defamed with a copy, not of the affidavit, but a copy of the testimony the man gives before the Commission?
Lawrence E. Walsh: Yes, sir.
Earl Warren: Then the -- the person defamed or alleges to defamed, is invited to appear as a voluntary witness?
Lawrence E. Walsh: Yes, sir, or file a statement.
Earl Warren: Or file statements, yes. If he wishes to -- to do neither, then the Commission exercised its own discretion as to whether it will issue a subpoena or not.
Lawrence E. Walsh: It will -- probably, the matters of mechanics have issued the subpoena in advance, as to the registrars, because it needs their records.
Earl Warren: I -- I see.
Lawrence E. Walsh: Yes.(Inaudible) --
Earl Warren: And -- and at the time they appear before the Commission for hearing, they have a copy of the testimony that the so-called complainant gave before the Commission in executive session?
Lawrence E. Walsh: Yes, sir. Or they were -- they could listen to the testimony in executive session.
Earl Warren: Yes. They could --
Lawrence E. Walsh: Yes.
Earl Warren: -- could listen to it in executive session.
Lawrence E. Walsh: To save the time of transcription.
Tom C. Clark: In defense?
Lawrence E. Walsh: Yes, sir.
Tom C. Clark: That kind of a statement?
Lawrence E. Walsh: At the time the testimony was taken in executive session. I don't think this is actually arisen, but I -- that's -- that is the Commission's plan to --
Earl Warren: Is that the rule -- is that in the rule?
Lawrence E. Walsh: It's not in the rules require they're giving him a transcript.
Earl Warren: Yes.
Lawrence E. Walsh: But in lieu thereof, that would be the Commission's plan in hoping to clean this up in one day or two days.
Earl Warren: Oh, yes.
Lawrence E. Walsh: To -- to say the time of transcription by letting the registrar hear the testimony in executive session relating to him.
Earl Warren: Yes. Now, if may carry this is one or two steps farther, if the -- witness -- and subpoenaed, declines to testify --
Lawrence E. Walsh: Yes, sir.
Earl Warren: Then the matter is certified -- the Attorney General may certify the matter to the District Court?
Lawrence E. Walsh: Yes, sir.
Earl Warren: The District Court may hold a hearing and determine whether or not, he should testify?
Lawrence E. Walsh: Yes, sir.
Earl Warren: If it directs him to testify, he is again called at the hearing and if he refuses to testify, then the manner goes to the District Court again?
Lawrence E. Walsh: For prosecution for defense.
Earl Warren: Yes. And if convicted, if tried by a jury, the maximum is $500 or $1000 or six months in jail?
Lawrence E. Walsh: Yes, sir.
Earl Warren: If he's tried by the court, the maximum is 45 days in jail or $300?
Lawrence E. Walsh: Exactly, Your Honor.
Earl Warren: Well, I apologize for taking so much for your time --
Lawrence E. Walsh: No, I -- I appreciate --
Earl Warren: -- but I -- I did want to get those steps clear in my mind and they weren't quite clear.
Felix Frankfurter: Do I understand -- did I correctly hear or taken, you said the registrar maybe present while defamatory charges were made against him in executive session.
Lawrence E. Walsh: In executive session.
Felix Frankfurter: That is not -- could not in the rules, but that is the practice.
Lawrence E. Walsh: That -- that is not -- not any rule and I'm not -- I don't -- I think it's an academic question so far in the Commission's existence, but it -- it is there --
Felix Frankfurter: (Voice Overlap) that what, academic in what sense?
Lawrence E. Walsh: That I don't think they have -- they have been in a position where they have had to -- to call him. I mean they've been -- both had a defamatory witness and the pressure of time that would require them to tender this alternative. That is their -- their plan of operation under the -- under the circumstances with which -- which posed to me, is -- is a question.
Felix Frankfurter: Well, when you said that as a matter of fact, he could be present, in a manner of speaking, their confrontation except through examination, is it -- it's not in the rules, it -- it is stated in the record, are you in a position to state that is a fixed practice of the Board?
Lawrence E. Walsh: I'm only in the position to state that from what the Board told me, sir.
Felix Frankfurter: Yes.
Lawrence E. Walsh: And it's not in the record.
Felix Frankfurter: Yes. But that's why, I put alternative.
Lawrence E. Walsh: Yes, sir.
Felix Frankfurter: That is a fixed practice of theirs that you authorized the State here, is that right?
Lawrence E. Walsh: I -- I think -- I'm -- I'm worried about the word practice, because I don't know that has happened it --
Felix Frankfurter: There has been --
Lawrence E. Walsh: -- to a plan or that their plan of operation.
Felix Frankfurter: Anyhow, that's a basis on which they proceed --
Lawrence E. Walsh: Yes.
Felix Frankfurter: -- that's the basis on which they operate.
Lawrence E. Walsh: Yes, sir.
Felix Frankfurter: That's what I'm in for.
Lawrence E. Walsh: The --
Tom C. Clark: That's why they have no jurors (Inaudible)
Lawrence E. Walsh: No. No, Mr. Justice Clark, I think to -- at times a -- a foolish extent there is a division between the Commission and the Department of Justice. The Congress was afraid that the Commission would be used as a fact-funneling organization for the department and so we have both bent over backward to stay away from each other and at times I really do think that the administration both of our jobs is -- has suffered as a result. That we do not advise them, I suppose that they tendered a question to us, we would answer it but so far as I know, they have not. They have their own --
Felix Frankfurter: They have their own counsel?
Lawrence E. Walsh: They have their own --
Felix Frankfurter: They have their own counsel?
Lawrence E. Walsh: Oh, yes. And -- and Mr. Tiffany who's their Staff Director is a former Attorney General in New Hemisphere, so he's --
Tom C. Clark: Did they turn the question along the line as Justice Frankfurter asked.Did you guys have to make the subject to be present, when the accuser would seem a challenge?
Lawrence E. Walsh: In the executive session, I would advise them, yes, sir. Because as I've tried to indicate yesterday, they are trying to -- to rapidly survey a situation, they -- they contemplate calling as many as 50 witnesses in a day or day and a half. And they tried to -- if there were any number of defamatory witnesses, the idea of transcribing is just going to be a waste of time, and they might just as well hear it. The thing the Commission wants to avoid is -- is giving complaints out weeks or months in advance, so that the complainants can frankly be -- this subject to -- to actions in between the time of their filing of their complaint and their being called. And if Your Honors, will turn to page 1 --
Speaker: (Voice Overlap) can I ask you (Voice Overlap) --
Lawrence E. Walsh: Yes, sir.
Speaker: (Inaudible) me about this so-called defamatory witness, I would suppose that any witness who had a complaint that he'd been deprived to his voting rights is of necessity, a defamatory witness.
Lawrence E. Walsh: Well --
Speaker: And therefore, I don't understand what kind of testimony is put on in public hearings.
Lawrence E. Walsh: Your Honor, it -- it doesn't come out quite that -- just to go back to Alabama now, to get away from the complaints in this case. What happens -- the witness doesn't come in and make a criminal charge as -- as a complaining witness before a magistrate. He comes in and says “I have an A.B. degree from the college of the City of New York, and I'm a Bachelor of Divinity from some other college and I voted in Arkansas and I voted in California. And I tried to register to vote here and they said that I didn't fill out the -- the form properly or that I misspelled the word and therefore, I was illiterate.” Now, that's his testimony. He's not saying that this is willful. This is intentional. He leaves the facts to speak as to whether it's arbitrary and -- and maladministration. But those witnesses have not been treated by the Commission as defamatory. If any of the registrars so felt and asked that they'd be called on executive session, they would be -- it would be so done.
Speaker: What is an example of the defamatory statements, that would lead to in examining --
Lawrence E. Walsh: Well, where --
Speaker: (Voice Overlap) --
Lawrence E. Walsh: -- where you get into a situation where one witness of his own knowledge testifies to desperate treatment between a Negro and a white person, where the white person is -- is not tested as to literacy in exactly the same fashion. That comes a little closer or where the registrar has been offensive in the language which he has used or has indicated that he is not going to register Negro persons or to go away and get lost or something like that. That I would say comes closer to defamation and it does reach defamation.
Speaker: Well, has the Commission put on public hearings as evidence that Negroes are freely allowed to vote?
Lawrence E. Walsh: They --
Speaker: Or there is only instances were they're not allowed?
Lawrence E. Walsh: They are only -- they only put on --
Speaker: That it alleges to -- that alleges to be not --
Lawrence E. Walsh: Well, they are -- they only develop in -- in public hearing, the situations where they are -- where there are alleged violations.
Speaker: Without assuming therefore, I don't still don't understand the distinction between --
Lawrence E. Walsh: Well, is it --
Speaker: -- defamatory and non-defamatory testimony.
Felix Frankfurter: Your words, if I may --
Lawrence E. Walsh: Yes, sir.
Felix Frankfurter: I mean your word, “pattern,” should light on it. If there's a pattern of not voting with the ratio of white to colored --
Lawrence E. Walsh: Yes.
Felix Frankfurter: -- from that pattern, deductions may be made, which involves no -- no charge against the particular person or any -- overt misconduct of a particular person, accepting so far to this part of the pattern.
Lawrence E. Walsh: Exact -- Mr. Justice Frankfurter, that -- that says what I've been trying to say for an hour here and I'm -- haven't done very well. The -- the fact to the matter here is that no one is singling out a registrar as a criminal. Everyone's approaching this as the registrars are performing a state function, in accordance with their state policy, as they understand it and has it has been explained to them. The statute itself sets up a subjective test whereby a witness is -- is asked about what any section from the Federal or State Constitution means. And the registrar is told how to apply that test. And the registrar is told how to handle misspellings and applications, and how they should not help Negroes fill applications up. That's told to them not by stray individuals, but by the Chairman and the counsel of a joint legislative committee, which was set up for that purpose. To oversee the perpetuation of segregation and to see that these things were understood by the registrars on the theory that a rigid enforcement of this law would automatically cutdown Negro registration. So, I think that the whole picture becomes distorted when we look at these registrars as defendants. And Your Honors, if I've taken the liberty as I said of lodging the Commission's report with the Clerk of this Court. There are two chapters, one on Alabama, which is Chapter 5 and one on Louisiana, Chapter 98, and the findings of the Commission at -- at 134. Now, it shows the -- in retrospect, what the Commission has done. If there are three registrars mentioned by name, I'm -- I -- I don't remember the third part. I think, there are two in Alabama who got wrangle over their records and they're mentioned by name. But in 130 odd pages, on voting, I don't think there be found 130 lines which can be called in anyway, accusatory. And the accusations are not left to southern States. New York has singled out for the failure to handle a Puerto Rican problem, many of people who don't speak English. And the Department of Justice incidentally has mentioned at times, not too favorably. So there's a -- is a sweeping survey in 130 pages and there's no time taken to get lost in whether or not a registrar did what he or she did dishonestly, stupidly, arbitrarily, or -- or what the reason for it was. All he did is to get the picture of -- of Negroes trying to register and what they're confronted with as they do so.
Charles E. Whittaker: I suppose that if it's true in the some cases, the line between whether the Constitution maybe or may not be defamatory, could get to define.
Lawrence E. Walsh: Yes, sir.
Charles E. Whittaker: Or it does not -- the Subdivision (e) of Section 102 expressly does the Commission with a discretion to determine whether or not, in their view, it will -- the testimony prove to be defamatory?
Lawrence E. Walsh: In a -- in so many words, it does Mr. Justice Whittaker.
Speaker: Could I ask you how many public hearings have been held by the Commission?
Lawrence E. Walsh: As to voting only -- only one. And I'm -- I'm not familiar with the number held on housing and education.
Speaker: And how many private hearings (Voice Overlap) --
Lawrence E. Walsh: I -- I don't think -- I think there was -- there was a hearing on voting in -- in New York. I think there were two on voting, sir.
Speaker: Two.
Lawrence E. Walsh: Private hearings, I -- I don't --
Speaker: Suppose we -- you don't know.
Lawrence E. Walsh: I don't know of any. I think they just private interviews and there've been no involuntary private hearings.
William J. Brennan, Jr.: It was a time that having stated the person who (Inaudible).
Lawrence E. Walsh: No. And not must he asked to be and I don't --
William J. Brennan, Jr.: Could the rule provide that if asked to be, he shall be heard in (Inaudible)
Lawrence E. Walsh: It does not, Mr. Justice Brennan. It did -- I'm -- I can see no objection to that and I felt that the Commission would have any, from it they've said that, but actually, the rule does not so provide.
William J. Brennan, Jr.: Is he entitled to a subpoena or just for witnesses (Voice Overlap) --
Lawrence E. Walsh: He is, in the expressed terms of the rule and the statute. He's entitled -- he's -- he's entitled to ask the Commission to subpoena witnesses for him. The Commission has the discretions as to whether it will or will not.
William J. Brennan, Jr.: Any standards governing that discretion?
Lawrence E. Walsh: The -- if Your Honor, will turn to page 16, Section 102 Subdivision (e) and then Sub-Subdivision (3), it just says, “The Commission shall receive --
Earl Warren: What page is that?
Lawrence E. Walsh: At page 60 of the record, Mr. Chief Justice. It says, “That the Commission determines that the evidence will tend to defame and so forth and after the executive hearing, it shall afford such person an opportunity (Inaudible) voluntarily to appear as a witness and receive and dispose a request from such person to subpoena additional witnesses.” And then in the rules of the -- of the Commission -- the rules on page 58 expressly provide for the taking of transcripts in all hearings, that's Subdivision (f), and then in Subdivision (j), it deals with the question of defamatory testimony. But it does not go beyond the statute in -- in establishing the standard as to the subpoenas. Your Honor, I think that's all I have to say on the question of apprisal. I don't want to labor legislative history again, but that was all fought out in the Congress, the Dies amendments provided, in expressed terms, maybe seen in the -- in the next to the last page of our main brief, “That insofar as practical, any person whose activities are the subject of investigation by the Commission or about whom adverse information is proposed to be presented at a public hearing of the Commission, shall be fully advised by the Commission as to the matters into which the Commission proposes to inquire and the adverse material which is proposed to be presented and insofar as practical, these materials to be given to them, that the Dies amendment expressly provided.” That was in the Dirksen bill. That was the bill that did not pass. And when the House bill came over to the Senate, Senator Talmadge and Senator Stennis, both protested with eloquence, about the deletion of this Section. So, again, I say that the Commission has, in its rules, really gone beyond anything that Congress intended to require of it, as far as apprisal is concerned. Oh, in the letter I meant to -- to read on page 148 of the record, to show what it is that the Commission appears and the reason for its policy, I think is illustrative. This is a letter from Mr. Shaw, who represents the plaintiffs in the Slawson case, and also at that time, one of the individual registrars. We are writing on behalf of Ms. Lannie Linton, Registrar of Voters, Claiborne Parish, Louisiana. At a meeting in Minden, Louisiana, held on March 12th, 1959, Colonel A. M. Rosenfeld, Chief of the Complaints Division of your Commission, stated that there was on file with your Commission four sworn statements, charging the registrar with depriving citizens of Claiborne Parish, of their voting privilege by reason of color, race, religion, or national origin. My client knows these sworn allegations to be false, since no such discrimination has been practiced. Accordingly, she wishes to prefer charges of perjury against the person or parties responsible for these misrepresentations. Louisiana Revised Statutes, Title 14 Section 123, designate such misrepresentations of perjury, felony under the laws of Louisiana. Your attention is also invited. To Louisiana revised statutes Title 14, Section 25, which defines accessory after the fact, as being any person who aids a felon with the intent that he may escape arrest, trial, conviction or punishment. An accessory after the fact is also guilty of the felony. We herewith warmly demand that you forward to us copies of the affidavits referred to in order that a proper presentment maybe made to the grand jury. Colonel Rosenfeld also advised that agents from the Commission had investigated each of the affidavits by personal visit the affiants here in Louisiana. This means that the crime has been completed in Louisiana. I need not remind you that proceedings before a grand jury are secret and no affiant need fair reprisals, if he can establish his innocence for the satisfaction of such grand jury. We shall await your reply and copies of the accusations. On receiving that letter, the Commission reaffirmed its policy of maintaining secrecy as to its complaints until the actual holding of the executive session. And that is the fear of such retaliation against these complainants in advance to the hearing. After the hearing, they'll take the chances, but to have it happen in advance of the hearing is the thing that Commission feared.
William J. Brennan, Jr.: Before you sit down, Mr. Walsh.
Lawrence E. Walsh: Yes, sir.
William J. Brennan, Jr.: I gather (Inaudible) that if a person allegedly defamed elects to be heard in his offense on the executive session, there's no right of cross-examination of the adverse witness provided?
Lawrence E. Walsh: No right of independent cross-examination.
William J. Brennan, Jr.: And yet, I notice that this is applicable at page 270. That he determines that he'll be heard at a public hearing, but his defense shall be heard in the public hearing. He does have a right to cross-examination.
Lawrence E. Walsh: The -- this is the -- this is the Dies amendment which was --
William J. Brennan, Jr.: This is not --
Lawrence E. Walsh: This is not the law. This is --
William J. Brennan, Jr.: This is not what --
Lawrence E. Walsh: -- this is what -- what the Senate tried to get into the law and just didn't get in.
William J. Brennan, Jr.: Well that's right.
Lawrence E. Walsh: Didn't go. Thank you very much.
Jack P. F. Gremillion: Mr. Chief Justice and may it please the Court.
Earl Warren: Attorney General Gremillion.
Jack P. F. Gremillion: Pardon me, I -- I apologize. Mr. Chief Justice and Members of the Court, I -- I want to say that we have two cases for argument today. One is No. 549, the appellees are all registrars or voters of State of Louisiana, that the Attorney General represents in federal matters, by virtue of an act of the State of Louisiana. The other case is six individuals who were subpoenaed by compulsory process to attend this proposed hearing. There is no connection between either one of these particular cases. I wanted to make that clear. Although the suits were filed simultaneous, because of necessity, they're completely independent of each other. They were consolidated for argument before the three-judge court for our convenience and ordered consolidated for argument here for convenience of the Court. And I wanted to make that particular observation, because there are certain defenses both in equity and law. And certain constitutional defenses that the registrars or voters claimed they're entirely different from those of the individuals who are in the other lawsuit. I want to say this, at the outset that we have no quarrel whatsoever, with the Commission's right to investigate. We have no quarrel whatsoever, with their right to determine facts or patterns. What we do have quarrel with is the fact that when an administrative agency or fact-finding body, or whatever you call it, turns out to be an accusatory body, that the persons who are under compulsion and who are subpoenaed to testify, have the traditional safeguards which the Sixth Amendment and the Constitution gives to them, and the other amendments give to them. And that Congress, itself, when it created the Commission on Civil Rights, had no authority to waive those safeguards, unless it was expressly stated in the particular Act. Now, that is the position that the registrars or voters states. And I say that regardless of how idealistic and how wonderful the motives of the Commission maybe, and how fast they have to act to determine these particular rights, that that is no excuse to disregard the right of cross-examination, apprisal, confrontation and the traditional safeguards that are so inherent in our justice and in our system of justice. And that is why this particular suit was filed and the temporary restraining order was sought in the Western District of the State of Louisiana. And it was because of the absence of those traditional safeguards and the harm that would come to the reputation of these registrars which is something that is basic in our democracy. Because of that irreparable damage that the Western District gave us a temporary restraining order and placed this case before a three-judge court on the issue of constitutionality, of the creation of the Commission itself. And let me say herein now, that the order or the judgment of the Western District of Louisiana did not stop the Commission from operating in any respect. It only said that you cannot subpoena these registrars and force them to testify until you give them the right of cross-examination, apprisal, confrontation, and the traditional safeguards. All of the other witnesses that the Commission had it in Shreveport could have been heard and we would've had no objection. In fact, they could have conducted their hearing even with those registrars, if they had complied with the court order and given them the right of cross-examination and the other rights that I'm referring to. And in this particular argument, I'll refer to them as the traditional safeguards for -- in order to conserve time.
Earl Warren: You --
Jack P. F. Gremillion: Now, we --
Earl Warren: Mr. Attorney General, putting this side for a moment, the testimony of the -- of the registrars, could they -- could they have had the records -- the public records of the registrar's office.
Jack P. F. Gremillion: That was a conflict between federal law and the -- this particular act and the Louisiana Act, of which the Commission was well aware from the inception of this controversy.
Earl Warren: What is that controversy?
Jack P. F. Gremillion: I will come to that, Mr. Chief Justice. Louisiana law says that records of a registrar or voter can only be inspected by a registered voter of that particular parish. They maybe copied upon the application of 25 registered voters of the particular parish or photograph and so forth, and failure to comply with that particular statute of Louisiana, results in a criminal penalty. We advised, Colonel Rosenfeld of the Commission. We advised Mr. Tiffany of this particular conflict and we asked them that they meet with us in an error of agreement, but they chose to disabort -- they chose to avoid that and to go right ahead and hold their hearing. And that's what I was coming to as to actually the facts in this case.
Earl Warren: When was --
Jack P. F. Gremillion: Because --
Earl Warren: -- when was that Act passed?
Jack P. F. Gremillion: That Act was on the statute -- has been on statutes of Louisiana. Its absence the Constitution of 1921 and has been passed on by our courts and our Supreme Court on several occasions, as being a law of Louisiana. Now what -- what I want to come to are the facts in this particular case, because they are very, very important. Every session of this Court that -- that it is held by the Supreme Court, you are called upon to pass upon these basic human rights, which is so dear to our democracy. And in each instance, you have gone carefully into the facts and the circumstances to determine whether those rights were violated or not. Now, the facts in this particular case, I'm not going to go over them because they are contained in my affidavit which is found at page 142 of the record and the subsequent correspondence which is attached thereto. You will note that in January, Mr. Tiffany came to Louisiana. We had a very pleasant conference. I advised him of every act of the State of Louisiana with reference to the registration of voters. He told me that he saw no particular reason why we should have a disagreement and that they would investigate, and that they had particular complaints that charge these registrars with depriving certain individuals. And incidentally, I might say this, that I learned more about the proposed hearing that was scheduled to be in Shreveport today than I could ever find out from the Commission or any of its representatives. I wish that we have had that information in Shreveport. We may have been better able to have chartered our course and necessarily proceed with judicial dignity for an application for a restraining order but we never had that information much of that today. Today was the first time that we found out that Negroes were the only complainants. The -- the subpoena which was served upon these registrars says, that certain persons have been deprived of the right to register and vote by virtue of race, creed or color. We didn't know whether they were white, black, yellow, red or green. We didn't know that until today. And we don't know yet whether they were just on a right to register or whether it may have been for religious reasons or others. In other words, all of these information was kept away from us. As a result of our conferences, Mr. Tiffany told me that they would investigate all of these particular complaints and that after this inquiry, after this particular investigation, if they decided to hold a hearing, they would certainly do so.We both met that with our governor during the conference of the National Association of Attorney Generals at which I was host in New Orleans. We met with our governor. We decided then that it would be a good idea to have these interrogatories. Well, naturally, we thought that the interrogatories would be pertinent. That they would be related to the particular accusations or the complaints that the Commission had received in which they were authorized to receive --
Earl Warren: Interrogatory by whom Mr. (Voice Overlap) --
Jack P. F. Gremillion: By the Commission to the registrars. And we received 315 interrogatories which reminds me of a government addition of a (Inaudible) catalog that has all kinds of questions in there that calls for opinions, that calls for matters entirely unrelated to the subject matter of such a fact-finding as the Commission chose to assert. Many of those questions were certainly incriminating. It would have been dangerous to answer those particular interrogatories and then have that particular information at a hearing, because slander, incriminatory remarks and -- and other things could have crept into there, which would have violated these registrars' rights. And besides, and I assure this Court that I was trying to cooperate to the best of my ability, and that I did. And besides, the conditioned precedent for us -- on the receipt of the interrogatories was that they'd be absent in 10 days. And number two, that after the receipt of the interrogatories, the Commission would hold a hearing anyway, if in his judgment, it decided to do so. Yet, counsel would have -- you believe that they were trying not to have a hearing and they want us to answer interrogatories what I say as -- I mean the registrars to answer interrogatories. And then if they decide the whole hearing, they will continue to do so. In other words, hold the hearing for what? Exposure purely for exposure's sake, because the Commission investigates these complaints. It determines what the facts and the patterns are and they have done exactly that in this particular case, because as a result of these complaints, they have determined the facts and have published to report, which says that I didn't cooperate, which is not so, which accuses Louisiana of bringing a road block, which is not so. And which even contains slander -- slanderous remarks about the lack of cooperation of Federal Judge Dawkins and the Western District Court. Of course, that's done. We can't do anything about that. But that's an example of what we've been faced with in the handling of these particular facts, and then, in my negotiations with Mr. Tiffany, over whether to answer the interrogatories or not and all that's right in this record. He says, “Well if you have an objection so stated.” But then there was a release that came up from the Commission from Washington which said, that the Commission was going to hold a hearing in Louisiana anyway. So we just took the attitude, well, if you're going to have for hearing, come on let's have the hearing and get it over with. And as I said before, we had no objection to a hearing. But a hearing how, according to rules of the Commission, rules which were not authorized by Congress, rules which were adopted in the form of a resolution, and in the midst of all these controversy, the Commission adopted a resolution in Atlanta as follows, “The Commission from his first meeting forward, having considered all complaints submitted to it as confidential, because such confidentiality is essential in carrying out the statutory duties of the Commission. The Staff Director is hereby instructed not to disclose the names of the complainants or other information contained in the complaints to anyone except the members of the Commission and members of the staff assigned to process study or investigate such complaints.” I defy anyone in this Courtroom to show me why Congress authorized such a resolution, or such a policy-making part on the part of the Commission, it is not in the Act. The Act says that they will investigate right here, that they will investigate allegations in writing, under oath or affirmation, that certain citizens are being deprived of the right to vote. The Commission also adopted rules, the same ones that are in the Act, which we say are not sufficient and which Congress did not have the authority to do because it didn't go far enough. In other words, Congress committed a “boo-boo.” Number 3, on page 3 of these rules, “In addition to the statutory of provisions, the Commission has adopted the following supplemented rules or procedure,” and then they go on with quite a few “which gives the Commission discretionary features, which gives them judicial finding features, which gives them adjudicatory features, which gives them the right to subpoena. And we were talking a minute ago by the testimony in executive session. You can only get one if the Commission decides to give you one. That's in the rules and only if you pay the cost of it. There's no positive statement that the Commission has got to give you one, upon request. And then they come down and in G, they say, any witness desiring to read the prepared statement has got to submit more than 24 hours. And then they would decide after. The Commission will decide, well, if they'll read or not. Discretion again, policy again, which is not authorized by Congress, the Commission shall decide whether written statements or documents submitted to it shall be placed in the record. Again, the right to judge, we could've placed all kinds of written statements in there, 100. And the Commission says well, no, we're not going to put that in there, because we alone reserve the right to determine the facts. They could take the testimony of one man as against 100 witnesses that we might present. Now, they might let us present them. And at the hearing in Shreveport, let me say that it was for one day. It was a public hearing. 24 witnesses were subpoenaed by the United States Marshal, under compulsory process. The ballots of the witness were subpoenaed by the Commission's own investigators. Again, a design of secrecy, again, a stark chamber proceeding, where we had no idea of the charges that we were going -- these registrars we're going to be faced with. We had no intention what it was about. We could prepare no defense, even under the rules of the Commission. So how could we, in all fairness, and with the traditional safeguards, that these registrars are entitled to, who are reputable people, most of them ladies, honest citizens of the State of Louisiana. And the law has to assume that they are doing their duties, unless it be to the contrary. And with the benefit of that assumption, and with the benefit of the assumption of innocence until proven guilty. How could we defend these particular registrars in any sense of fairness or in any sense of justice? And yet, the Commission says that they want to develop the facts objectively, in order to make a report and to set a pattern. This record is replete, with cooperation on my part in the Board of Registration. Where if any registrar was not doing his duty as prescribed under Louisiana statutes, we wanted to know about it, because we would fire them and we would prosecute them. The people that's on our brief of counsel here, of the District Attorneys to the various districts and these particular parishes, they're honest people. They wanted to find out the facts too, but every time we turned around, we were met with secrecy. We were met that authority. Develop is a result of policy decisions of the Commission, which were not authorized by Congress. And, of course, this Court has said many times that the denial of a right to cross-examination and to have these particular privileges, the act of Congress creating that administrative agency must to be expressed. That is in the Administrative Procedure Act, which we say governs the conduct and the affairs of this Commission, because Congress created the Administrative Procedure Act, healed it to eliminate overzealous administrators, such as the Commission here. Well, what the Commission wants to do, as a practical matter, is say come on down in Louisiana, we're going to be nice and good friends, but what's a little constitutional guarantees among friends? I can't hold that right. I've got to protect the registrars. That's my duty as prescribed by my legislature. Coming back to these rulings --
Speaker: Supposing the Congress sent down its own subcommittee to Louisiana and it conducted these hearings in the same way, what would've been your position?
Jack P. F. Gremillion: That would've been -- that's at all because Congress has had authority. But Congress does not have the authority to give the Executive Committee powers to legislate. And powers which it cannot do because the separation of powers of it. But Congress didn't do that though, they chose to proceed in this particular matter. And that, of course -- and we have no quarrel with that, Mr. Justice Harlan. We have no quarrel with that.
Speaker: So your point --
Jack P. F. Gremillion: The only thing that we have quarrel with is the conduct that the Commission, in making this an accusatory body, where these registrars are deprived or allegedly depriving individuals of the right to register and subsequently vote which is a violation of federal law and which is a violation of state law. And further -- but let me go just little further please, sir. And further, the rules that they have adopted which were not authorized by Congress or implied by Congress and which rules specifically prohibit cross-examination and which was admitted by the Commission itself.
Speaker: Well, I was just trying to fragmentize the issues here, but I understood it. You -- if this had been a congressional committee itself and that it acted the same way that you say this committee -- this committee had acted -- this Commission has acted, you say you'd have no grievance.
Jack P. F. Gremillion: No.
Speaker: Is that right?
Jack P. F. Gremillion: That's correct.
Speaker: Therefore, your point really is one of unlawful delegation --
Jack P. F. Gremillion: Correct.
Speaker: -- to this committee. That's --
Jack P. F. Gremillion: Correct.
Speaker: That's the -- that's the essence to your position.
Jack P. F. Gremillion: That is one of my own positions. And that's absolutely correct and the other position was that Congress had no authority. It did not authorize this Commission to adopt these particular rules which denied these traditional safeguards that this agency comes under the administration of the Administrative Procedure Act and that the Commission's hands were not tied, as they say they were. Because the only things that were enjoined from doing were holding a hearing in which these registrars were going to be suspects. And they could still hold a hearing, if they gave them those particular safeguard. Now, that's actually the meat of the coconut. And that's what the facts in this case come to. And let me show you -- where is this stipulation here, which was filed between the Government and myself, as attorney for the registrars. On page 169, the Commission on Civil Rights received 67 written allegations prior to February the 27th under oath or affirmation, from certain citizens and so forth, and that they had been deprived of their right to vote because of color, race, religion, and national origin. And that these were received sometime prior to February 27th, a number of which alleged generally that the plaintiffs in suit. And that -- that's the appellees here, the registrars through their acts and deeds had caused such deprivation. Immediately, that makes them suspects. That accuses them of violating the law. And then the next allegation in this stipulation that after the Commission received these -- after the Commission on Civil Rights received these complaints, investigators of the Commission was sent to the State of Louisiana and investigated the same. Now, that is admitted. There's no doubt about that. And those facts have to be kept in mind when you -- when you consider the rights that these registrars here assert. And those facts, takes this case away from Groban and takes it away from Anonymous. Because in Groban, the -- the Court there was -- that is -- instead that that was a private hearing. This was to be a public hearing. In Groban, it was a private hearing which was authorized by an Ohio statute of some 30 years standing, which had declared it to be the public policy of the State of Ohio. And they were not suspects in Groban. All the Fire Marshal was trying to do was to investigate causes of fires. But here, we have investigated the complaints. And they say that these complaints deprived these people of certain rights to register and it then -- it becomes accusatory. And -- and I -- I'm not arguing with Groban, I have no -- I have no quarrel with Groban or Anonymous, but I just say that they are not applicable to the particular facts here, because here, they had conducted an investigation as in Groban. And now, they were, by compulsory process, bringing these registrars to find out from them through their acts and deeds why they deprive these particular individuals of their right to vote which is a violation, as I said before, of federal and state law. And in Anonymous, and -- and I might say that -- I might say here, that in Groban, this is a distinguishing feature of Groban in -- in my humble opinion. Mr. Justice Frankfurter and Mr. Justice Harlan said, “If Ohio legislature would directly, explicitly or by obvious design to have secret inquisition of those suspected of arson, we would have a wholly different situation from the one before us.” This is not a statute directed to the examination of suspects. The aim of the statute is expeditious and expert ascertainment of the causes of fire. And in Anonymous, there they were determining not attorneys, they were determining the activities of ambulance chases, under a statute or a policy of the State of New York and Mr. Justice Harlan wrote that opinion. And, of course, they said, “That as a result of the authority of Groban, as a matter of fact, said Groban is controlling here.” And the constitutional claims are far less terrible than in Groban, because the proceedings were conducted by an experienced judge. In other words, Groban and Anonymous have no application here.
Potter Stewart: The issue in which (Voice Overlap) --
Jack P. F. Gremillion: But -- but Greene versus McElroy is the controlling case.
Potter Stewart: Excuse, Mr. Attorney General.
Jack P. F. Gremillion: Yes.
Potter Stewart: (Voice Overlap) understanding. The issue to which you've been addressing yourself, the last few minutes, Groban and Anonymous is the constitutional issue, is that right
Jack P. F. Gremillion: Yes.
Potter Stewart: Those cases -- those two cases arose under the Due Process Clause of the Fourteenth Amendment?
Jack P. F. Gremillion: Correct. That's correct.
Potter Stewart: This case arises in your view under what, the Due Process Clause --
Jack P. F. Gremillion: Fourteenth --
Potter Stewart: -- of the Fifth Amendment or does it arise under the specific guarantees of the Sixth Amendment?
Jack P. F. Gremillion: The Fifth, the Sixth and the Fourteenth.
Potter Stewart: Why the Fourteenth? What state action is involved?
Jack P. F. Gremillion: What's that?
Potter Stewart: Why the Fourteenth Amendment?
Jack P. F. Gremillion: Well, the Fourteenth Amendment, because they're denying of due process of law, which is their right to save their name and their reputation and their job.
Potter Stewart: But this is action, is it not by the Federal Government only?
Jack P. F. Gremillion: Well, I don't follow you.
Potter Stewart: Well, I -- I'm simply asking that you get this argument straightened out. It seems to me, there are good many or at least there are two basic issues here and I am having a little trouble getting in disentangled from my own mind.
Jack P. F. Gremillion: Oh, I see.
Potter Stewart: The -- the court below, did not reach the constitutional question, isn't that correct?
Jack P. F. Gremillion: No. The court below said it was not necessary to reach the constitutional issue --
Potter Stewart: That's right.
Jack P. F. Gremillion: -- because they considered the rules of the Commission not authorized by Congress and as such ultra vires and of no effect.
Potter Stewart: They relied that substantially on Greene against McElroy.
Jack P. F. Gremillion: Correct. Entirely.
Potter Stewart: Lack of authority.
Jack P. F. Gremillion: Correct. Lack of (Voice Overlap) --
Potter Stewart: That -- that this Commission had not been given authority by Congress to -- to adopt the rules and the procedures which it had adopted.
Jack P. F. Gremillion: That's (Voice Overlap) --
Potter Stewart: That -- that was the basis of their decision.
Jack P. F. Gremillion: More or less, yes.
Potter Stewart: At least -- and tell me if I'm --
Jack P. F. Gremillion: Yes, that's correct.
Potter Stewart: -- I'm trying to ask for information. Now then, you, of course, are -- are asserting that here. And that's quite a distinct and a separate issue from the issue that we would reach, if we concluded that the court below is a mistaken and that these procedures have been authorized by Congress, isn't that correct? Then we would reach the Constitution.
Jack P. F. Gremillion: Oh, yes. Yes, I follow you, now. Pardon me, I -- I apologize, Mr. Justice Stewart.
Potter Stewart: Well, I -- I broke into your eloquence and I -- if we reach that issue then, is it your contention that the constitutional rights that you be -- assert on behalf of the registrars and the private citizens respectively, are rights which arise under the Due Process Clause of the Fifth Amendment, on the one hand or are they rights which are specifically guaranteed by other provisions of the Constitution, such as the Sixth Amendment?
Jack P. F. Gremillion: Yes.
Potter Stewart: Which -- or both?
Jack P. F. Gremillion: Both, the Fifth Amendment and the Sixth Amendment, very much so. Because you see, it wasn't up to Congress to give these traditional safeguards or guarantees, when it passed the Civil Rights Act. Those guarantees already existed under the Constitution and Congress could not violate them. And Congress could not do it, and if it did so, it was unconstitutional.
Charles E. Whittaker: Now, you leave and exceed there, Mr. Gremillion, just following you up to that point, what -- if that's true, then would not the same rule apply to a congressional committee?
Jack P. F. Gremillion: Well, yes. But then, a -- they have the authority to legislate. A congressional committee would have that particular authority to legislate because that is their right as a creature of Congress. But they cannot delegate that particular authority to an administrative agency set up in the Executive Branch of the Government.
Speaker: Supposing the members of this Commission have been appointed by the Congress, instead of by the President, what would be your position?
Jack P. F. Gremillion: Well, we would've had entirely different act, now, I'm pretty sure. I mean -- I -- I --
Felix Frankfurter: Entirely, as in what?
Jack P. F. Gremillion: We would've had an entirely different act. I mean (Voice Overlap) --
Speaker: I understand that.
Jack P. F. Gremillion: We would -- we would have an entirely different act.
Speaker: Congress passed this statute, isn't it?
Jack P. F. Gremillion: Oh, yes. But I say that would have been an entirely different situation.
Speaker: Well, your position would've been a different position --
Jack P. F. Gremillion: Oh, I'm sure that it would have.
Earl Warren: Well, General, you -- I'm concerned about these rights. You say your clients were deprived of. Now, if they were constitutional rights, would Congress have anymore right to violate them --
Jack P. F. Gremillion: Oh no.
Earl Warren: -- than a -- than a creature of -- was it Congress?
Jack P. F. Gremillion: Absolutely not -- absolutely not. But I didn't mean to --
Earl Warren: I thought -- I -- I thought --
Jack P. F. Gremillion: -- I didn't mean to -- I did'nt mean when I was talking (Voice Overlap) --
Earl Warren: No. Before -- before you got -- Mr. Justice Stewart asked any questions, as I understood you to say, that the -- the constitutional rights of your clients have been violated. And on the other hand, you said that -- that -- well -- that to be violated. On the other hand, you said that if Congress had done precisely the same thing that you would not be here. That it would --
Jack P. F. Gremillion: No, I didn't -- -- be perfectly all right.
Earl Warren: I -- I didn't mean that, Your Honor. I -- I didn't mean that.
Earl Warren: Well -- oh, what did you say in that regard?
Jack P. F. Gremillion: I've -- I said this. That Congress has the authority to have a committee to investigate those matters with which it has a right to legislate. And that Congress, any committee of Congress, can no more violate the constitutional rights of individuals than anyone else. But the situation would be far more different with the congressional committee, because then that congressional committee would have had the opportunity to develop facts, just as the Commission on Civil Rights, with which we have no particular quarrel. But if it had been a congressional committee, we would certainly have attempted the same relief before the courts that we had -- they have attempted to do the same thing as this Commission, we had -- we would've attempted the same relief in Louisiana courts.
Earl Warren: In other words, if -- if this had been a congressional committee, down in your -- your state, operating as this Commission did, it would be your position --
Jack P. F. Gremillion: Yes.
Earl Warren: -- that it violated your rights as much as this Commission has?
Jack P. F. Gremillion: If -- if the Committee had done exactly what the --
Earl Warren: That's --
Jack P. F. Gremillion: -- Commission had done (Voice Overlap) yes.
Earl Warren: -- that's what I'm talking about. Well, I totally misunderstood you --
Jack P. F. Gremillion: I'm very sorry.
Earl Warren: -- a little -- a little while ago.
Jack P. F. Gremillion: I'm very sorry. That sort of comes back, as I said, the -- the facts in this case, now, I want to bring out one other thing that's very important here. There's quite a bit difference between an investigation and a hearing, and a hearing in equity and a trial by law or synonymous. We're not complaining about the investigation. The Commission has that right. As this stipulation and as the fact shows, this investigation has been complete. Now, a hearing of an adversary nature has come up before an administrative agency. And we -- yes --
Charles E. Whittaker: (Inaudible)
Jack P. F. Gremillion: Well, I mean the same thing, Mr. Justice. I mean that -- that here we have a hearing, which to all extents and proportions, would be a trial. They have -- they have been accused of violating the law, of depriving these people who say that they are qualified to register and not letting them register. And they were going to put witnesses on to prove that particular charge.
Charles E. Whittaker: (Inaudible)
Jack P. F. Gremillion: Before this Commission on Civil Rights.
Charles E. Whittaker: Does this have the power (Inaudible)
Jack P. F. Gremillion: Oh, yes. They have the power to decide, because in the -- in the rules -- in -- in the rules, they say “In the discretion of the Commission, witnesses may submit brief and pertinent sworn statements. The Commission is the sole judge of the pertinency of the testimony and the evidence adduced at its hearing.” And I might say that even the dissenting judge, Judge Wisdom, who incidentally -- he -- he just dissented on account of the Groban case. He said, “If Groban's right, I'm right. If Groban's wrong, Groban's wrong.” And he overlooked the distinction between the facts here and the distinction which I hope I've made to this particular Court. Let me read you what Judge Wisdom said on page 264, “A rob in this case comes from the act itself. It comes from the infra congruity of a legislative commission of inquiry, investigating specific complaints against individuals accused of crimes.” To my mind, the creation of such a commission is a questionable legislative propriety at best. It carries grave danger of legislative usurpation (Inaudible). The investigation of specific violations of law is for grand juries, not legislative commissions. And on that point, I might add right here, Mr. Justice Black, let me tell you that -- that --
Hugo L. Black: Are you talking about (Voice Overlap) --
Jack P. F. Gremillion: -- in the grand jury, they only investigate and determine whether a bill of indictment will be presented, which is the same thing that the Commission did, when they investigated these particular complaints. With all deference to Congress or Commission constituted to investigate a broad problem of national interest has no business holding hearings that must inevitably develop into legislative trials of individuals. When a subpoenaed witness accused of a crime maybe subjected to trial by exposure, a fact-finding determination and punishment, he should have the same rights of notice, confrontation and cross-examination and all the other hard-earned rights embodied in due process. That anyone accused of breaking the law is entitled to, when he is tried by a jury before a judge. That goes on a little further, then since the House “fair play” rules or a step in the proper direction. That's one of the things that the Government said that they adopted the House “fair play” rules. We say that that's not sufficient. The House “fair play” rules are step in the proper direction for congressional committees. Procedure suitable for Congress, old committees however, or less than adequate for a trial by an autonomous commission to which Congress has delegated its power of inquiry.
Earl Warren: To your knowledge, General, has any -- any congressional committee ever functioned as you proposed that they must --
Jack P. F. Gremillion: Not to my knowledge. That --
Earl Warren: You would say then that all of these investigatory procedures of -- of the Congress throughout -- throughout the years, whereas dispiriting out wrongdoing of one kind for another, have violated the -- the constitutional rights of those who -- it is investigating.
Jack P. F. Gremillion: Yes. And incidentally, there's a book on that by Mr. Telford Taylor. It's not in the record I just --
Earl Warren: Yes.
Jack P. F. Gremillion: -- might mention that when he -- are you familiar with that book and he makes that statement --
Earl Warren: Yes.
Jack P. F. Gremillion: -- by himself. It used to be a serious thing, Mr. Justices. When you have -- a -- an in -- fact-finding group or an investigatory body such as a Commission on Civil Rights that comes forward in zealous nature and assumes prerogatives of the judiciary. That is why Congress was so careful to pass the Administrative Procedures Act, was to protect individuals and to protect state officials against such a practice. And, of course, we contend that this Commission makes rules. We contend that it -- that it adjudicates in its findings, its facts, that it actually performs functions of the judiciary and is subject to the provisions of the Administrative Procedure Act. I might say this in closing.
Hugo L. Black: May I ask you if your contention boils down to this? I'm not quite sure enough.
Jack P. F. Gremillion: How is that?
Hugo L. Black: I -- I'm not quite sure, I understand that the scope of your contention is it substantially this that it all provides for accusations be made by affidavits against registrars. Accusations were made against registrars --
Jack P. F. Gremillion: Yes, sir.
Hugo L. Black: -- as shown on page 169.
Jack P. F. Gremillion: Correct.
Hugo L. Black: The law then authorized its hearing. The law does not authorize imprisonment or fine by the Commission, but it does -- by the Commission --
Jack P. F. Gremillion: That's right.
Hugo L. Black: But it does authorize a report on the charges at the hearing of its --
Jack P. F. Gremillion: That's correct. And -- and it, itself, is the sole judge of the pertinency of that testimony and so forth.
Hugo L. Black: And so, as your contention -- it is your contention, as I understand, that under such circumstances of an accusation of that kind, whether it'd be in the nature of the preliminary charge or anything else, your people are entitled to be represented to that counsel or cross-examine the witness to be confronted with the witness as against him.
Jack P. F. Gremillion: And to produce rebuttal testimony.
Hugo L. Black: Is that --
Jack P. F. Gremillion: That's our --
Hugo L. Black: You're basing it on the constitutional provision to authorize that calls for a testimony, the right to cross-examine, the right to counsel.
Jack P. F. Gremillion: And the lack of the authority of Congress to expressly provide that this Commission could operate in the manner that it is functional.
Hugo L. Black: Well, I -- I don't suppose you had to say, it was denied that Congress is without power to violate the Constitution. Their claim is it does not violate those provisions of the Constitution.
Jack P. F. Gremillion: That's right. And that's the question that this Court has to decide. That's the question that it is decided by the lower court. And the lower court --
Hugo L. Black: The Groban case was decided under the Fourteenth Amendment.
Jack P. F. Gremillion: Sir, I think that's --
Hugo L. Black: By the rules are not considered the same.
Jack P. F. Gremillion: That's right.
Hugo L. Black: You're relying on the provision of the Constitution as required by the Federal Government in its action.
Jack P. F. Gremillion: Correct, correct. We're relying that the -- the Fifth and Sixth Amendment and in addition to that, the -- the cases, of course, the law, I know is known of this Court, the cases of Watkins versus U.S., Morgan versus U.S., Joint Anti-Fascist Committee versus McGrath, and emphasized and reiterated in the latest expression of this Honorable Court, in Greene versus McElroy.
Hugo L. Black: I haven't quite understood yet why you say Congress did not authorize that to be done.
Jack P. F. Gremillion: Because --
Hugo L. Black: I now, I understand you're constitutional point.
Jack P. F. Gremillion: Congress --
Hugo L. Black: So, why do you say Congress did not authorize?
Jack P. F. Gremillion: Congress provided, when it enacted the Civil Rights Act, to settle rules of procedure, many of which are violated in our opinion of the Fifth and Sixth Amendment. It --
Hugo L. Black: Which one?
Jack P. F. Gremillion: It did not -- the --
Hugo L. Black: Which rule -- which particular rule, do you say it goes beyond an action of the Commission with reference to the witnesses --
Jack P. F. Gremillion: 102 (c)
Hugo L. Black: -- goes beyond the authority Congress granted.
Jack P. F. Gremillion: 102 (c)
Hugo L. Black: Where is that printed in the record?
Jack P. F. Gremillion: Oh, just a minute, Mr. Justice. I had another act.
William J. Brennan, Jr.: Page 60 --
Jack P. F. Gremillion: Just a minute, I have in the --
Potter Stewart: Page 60 of the record, I think.
Jack P. F. Gremillion: 102 (c), “Witnesses maybe accompanied by their own counsel for the purpose of advising them concerning their constitutional rights.” We say that's not sufficient.
Hugo L. Black: Well, now, wait just a moment. 102 (c), you say that's not sufficient, but why do you say that goes beyond the authority that Congress gave the Commission?
Jack P. F. Gremillion: Because now, in itself, it -- it may appear to be all right. But when you consider the facts of this particular case, that here, we have registrars or voters who were accused of a crime. That then --
Hugo L. Black: I -- I understand those facts.
Jack P. F. Gremillion: That's right.
Hugo L. Black: What I want to get in, and if I can, is why you say that the Committee went beyond its power in taking -- enacting that rule even though it does deny cross-examine. Why do you say Congress didn't authorize it? What was there in the act passed by Congress that leads you to say, this is ultra vires?
Jack P. F. Gremillion: Well, that's just it, Mr. Justice Black. There is nothing in the act that authorized the adoption of supplemental rules of the implication of these particular rules. The act is completely silent. And Mr. White, when we argued this case in the lower court, admitted that.It's silent either way. That's the point that I'm trying to make --
Hugo L. Black: You argued --
Jack P. F. Gremillion: That after -- after this Act was created, the Commission met and then implemented these specific rules with the adoption of other rules. One of which, in particular, said that interrogation of the witnesses would be only by the -- a member of the Commission's staff or by a member of the Commission.
Jack P. F. Gremillion: That's specifically denied the right of cross-examination.
Hugo L. Black: They have denied.
Jack P. F. Gremillion: Absolutely and they admit it.
Hugo L. Black: Are you arguing that because Congress did not expressly state, that they should be denied the right --
Jack P. F. Gremillion: Yes.
Hugo L. Black: -- to examine with --
Jack P. F. Gremillion: Yes.
Hugo L. Black: -- that it should not be read into the act?
Jack P. F. Gremillion: That's correct, because it cannot be read into it by implementation. It cannot be implied. It cannot be written into it by implication.
Hugo L. Black: You're arguing that the constitutional question is raised by so doing.
Jack P. F. Gremillion: Yes.
Hugo L. Black: And that that should not be read into the Act --
Jack P. F. Gremillion: Correct.
Hugo L. Black: -- for the reason -- is that one of the reasons --
Jack P. F. Gremillion: Correct. That is one of my contentions, very much so.
Hugo L. Black: But there's nothing, if you can --
Jack P. F. Gremillion: And that, of course --
Hugo L. Black: (Voice Overlap) in the Act.
Jack P. F. Gremillion: And that, of course, is -- was the holding of the Court in Greene versus McElroy. These particular Boards and Commissions had adopted a security program of their own, which was not authorized by Congress and which was not authorized by the act. And -- and again, I come back -- you've come to that, I say there's nothing in the Act and you can search it in vain and there is nothing in the Act that gave the Commission that particular power. And without that particular power, they have no authority to implement or supplement these particular rules. That -- that was the --
Hugo L. Black: Is there any -- is there any of other Commissions --
Jack P. F. Gremillion: How is that?
Hugo L. Black: Did you look into the other act creating the other Commission --
Jack P. F. Gremillion: Well, the only other Commissions --
Hugo L. Black: ICC and others --
Jack P. F. Gremillion: The only --
Hugo L. Black: The history of -- of what you are discussing here.
Jack P. F. Gremillion: Well, that comes back, Mr. Justice Black, to what I have said before about the Administrative Procedure Act. The growth of the administrative agencies is -- is apparent in our history today. And we have many administrative agencies which perform functions. And to prevent the violation of individual rights, Congress adopted the Administrative Procedure Act which set a national policy. And that policy was that the basic traditional safeguards and rights had to be given to an individual before any administrative body --
Hugo L. Black: Now, what provision of the Procedure Act are you referring to now?
Jack P. F. Gremillion: I'm referring --
Hugo L. Black: You tell that in your brief?
Jack P. F. Gremillion: Oh, yes.
Hugo L. Black: Quote it.
Jack P. F. Gremillion: Yes. It's in the brief. I'll find it for you in just a second. It's at page 29, 30, 31, through 34 of our brief. You see when Congress had --
Hugo L. Black: Now, which one of those particularly are you relying?
Jack P. F. Gremillion: I'm relying --
Hugo L. Black: Provision -- I'd like to get pinpointed, if I could (Voice Overlap) --
Jack P. F. Gremillion: Yes, I will, Mr. Justice.
Hugo L. Black: -- understand your arguments, so that --
Jack P. F. Gremillion: Where is that in the -- in that Act of Mr. Dawson? It's 5 U.S.C. 101.
Hugo L. Black: 101?
Jack P. F. Gremillion: 1011 and here -- here's what it says, “No subsequent legislation shall be held -- it's on page 32, “Supersede a modified provisions of this chapter, except to the extent that such legislation shall do so expressly and there is nothing in the Act which expressly exempts this Commission from the applicability of the Administrative Procedure Act.” I don't have --
Hugo L. Black: (Voice Overlap) provision of the Administrative Procedure --
Jack P. F. Gremillion: Well --
Hugo L. Black: -- is -- it is that you say is silent.
Jack P. F. Gremillion: In our brief --
Hugo L. Black: In that provision.
Jack P. F. Gremillion: In our brief at pages 58, 59 and 60, and 61, it's in appendix in our brief which you will find quotes the provisions of United States Code 5 101 (a) on page 59, 1004, which provides that “Persons entitled to notice of an agency hearing shall be timely informed of the time, place and nature, the legal authority and jurisdiction under which the hearing is to be held. The matter of facts and law asserted. In instances in which private persons or the moving parties, other parties to the proceeding, shall give prompt notice of issues controverted in fact the law. And in other instances, agencies may by rule, require responsive pleadings. In fixing the time and places of hearing, due regard shall be held for the convenience and necessities of the parties or their representatives. The agencies shall afford --
Hugo L. Black: (Voice Overlap) of that --
Jack P. F. Gremillion: The agency (Voice Overlap) --
Hugo L. Black: Examination of witness.
Jack P. F. Gremillion: The agent -- it -- it says that it -- it gives you that right.
Hugo L. Black: Where?
Jack P. F. Gremillion: It gives you the right. The agency shall afford all the interested parties, opportunities for the submission and consideration of facts, arguments, and so forth. Offers of settlement and so forth and to come specifically, for that were going just -- on page 62, which is 1006 “Hearings, presiding officers, powers and duties, burden of proof, evidence, (b), officers, presiding and hearings shall have the authority subject to the published rules of the agency and within its powers to administer oath and affirmations, issue subpoenas, rule upon office or proof and receive relevant evidence, take a cause, deposition to be taken, regulate the cause of hearing, whole conferences for the settlement, dispose of procedural request of similar matters.” And then it goes on further. In (c) says, “Every party, which is on page 63, shall have the right to present this case, our defense, by all the documentary evidence, submit rebuttal evidence to conduct cross-examination as maybe required for full and true disclosure of the facts.”
William J. Brennan, Jr.: Does that apply only to hearings under section 1003?
Jack P. F. Gremillion: That applies to all hearings as my --
William J. Brennan, Jr.: (Voice Overlap) at page 61.
Jack P. F. Gremillion: Page 59 (a) --
William J. Brennan, Jr.: Page 61 says, “The hearings -- the Section 1003 or 1004 of these (Inaudible).
Jack P. F. Gremillion: Yes. That's -- that's true, but you look at 1004 it says persons -- it says notice of hearings and the issues and so forth and it sets forth on page 59, the type of hearing. So it covers all of them Your Honor. Mr. Justice.
Charles E. Whittaker: (Voice Overlap) -- hearing of the adjudicatory matters -- the security to that contemplation?
Jack P. F. Gremillion: Yes. We contend that it is, Mr. Justice Whittaker.
Charles E. Whittaker: I just thought at the moment (Inaudible) can the result commission to obtain results that (Inaudible) three, appraise the law on (Inaudible)?
Jack P. F. Gremillion: That's correct.
Charles E. Whittaker: And that that was all the end result. Now, what familiar charge --
Jack P. F. Gremillion: That is true. But in Morgan versus United States and Greene versus McElroy, they held where an administrative agency became an accusatory body or it actually came into the trial. Where this evidence showed that these registrars were violating the law and that they did not have the traditional safeguards, they could be prosecuted by the Department of Justice. They could be prosecuted by Louisiana law.
Charles E. Whittaker: If he's (Inaudible)
Jack P. F. Gremillion: But --
Charles E. Whittaker: What can this before and for and how Section 104 (Inaudible)
Jack P. F. Gremillion: Yes. It --
Charles E. Whittaker: Where --
Jack P. F. Gremillion: -- it adjudicates on evidence. It adjudicates on the pertinency of the evidence. It adjudicates on who will be heard. It adjudicates of whether you'll be given a copy of the record. They are numerous places in this particular act where the Commission by its own rules that it adopted, adjudicates and affects the rights of individuals. There -- there's enumerable instance and we have pointed that out. It -- it adjudicates in these findings of facts, because it determines what facts it's going to report or not. It is even suggested in this report legislation, legislation which is presently being considered before a Senate Committee on Capitol Hill, right now. It has exceeded its authority in that particular fact. And that's why we keep saying that -- we keep saying that it adjudicates and it subjects to the provisions of the Administrative Procedure Act. Let me show you on page 101.
Hugo L. Black: (Voice Overlap) --
Jack P. F. Gremillion: It says, “The testimony which complaining witnesses had been prepared to offer at the Shreveport's hearing, plus the Commission's own field investigations, indicated three major techniques of voting denial.” Now, if that's not adjudicating. I don't know what it is.
Earl Warren: General, didn't -- didn't all three of the judges below hold that this Administrative Procedure Act was inapplicable to this situation?
Jack P. F. Gremillion: Yes. First Judge Dawkins said that it was, when he issued a temporary restraining order, he said that it -- that it was applicable. And then later, he changed his mind. And, of course, we disagree with that because we think that they were under misapprehension of the facts as it applied actually to the Administrative Procedure Act, itself. But what the court below did, as I'm sure you're well aware, it said that the legislation was appropriate legislation. It said that the Commission had exceeded its authority and the rules were not authorized by Congress. And therefore, they were ultra vires, and then on the equities of the thing, that probably natural justice might say that in some hearings that confrontation and cross-examination might not be proper. But of the hearing that was proposed in Shreveport as developed by the facts and the stipulation that that particular hearing -- in that particular hearing or a type of that kind, under the doctrine of Greene versus McElroy, these registrars were entitled to their traditional safeguards.
Charles E. Whittaker: But General, are you leading to see what is that?
Jack P. F. Gremillion: [Laughs]
Charles E. Whittaker: Are you saying that (Inaudible) were not authorized by Congress of which (Inaudible) rules of the procedures of the Commission, now that is in the actual Congress. That's --
Jack P. F. Gremillion: May I --
Charles E. Whittaker: -- isn't it?
Jack P. F. Gremillion: -- may I say this, Mr. Justice Whittaker, to clear that point up.
Charles E. Whittaker: Yes.
Jack P. F. Gremillion: Congress did give them (a) through (f), but then the Commission adopted and supplemented additional rules of its own, with which we --
Charles E. Whittaker: The one you were complaining about was (c) and that's in the 102, which Congress directly authorized in the Act. I mean not authorize within there.
Jack P. F. Gremillion: Where is the valid (Voice Overlap) --
Charles E. Whittaker: Well, I don't (Voice Overlap) --
Earl Warren: 16.
Charles E. Whittaker: (Voice Overlap) of the record.
Jack P. F. Gremillion: Oh, yes, I know that. I'm looking for the additional rules in the -- the records. The -- the rules that Congress adopted start on page 57. In addition to these statutory provisions, the Commission has adopted the following supplemental rules of procedure. And it enlarged upon (c) and -- and said in -- (i) that “Interrogation of the witnesses shall be conducted only by members of the Commission or by authorized staff personnel.” They adopted these rules on July the 1st, 1958.
Earl Warren: Well, if --
Charles E. Whittaker: And if I misunderstood you, but I understood you in answer to Mr. Justice Black, saying the complainants of Rule (c) on --
Jack P. F. Gremillion: Yes.
Charles E. Whittaker: -- page 60.
Jack P. F. Gremillion: And I said that Rule (c) wasn't sufficient. That it violated -- that for the Fifth and it violated the Sixth Amendment.
Earl Warren: Well, it is the point of fact?
Jack P. F. Gremillion: Oh, yes. I admit that and certainly, I --
Potter Stewart: Well, Mr. Attorney General, what -- what is the significance in Subsection (b) of this Act?
Jack P. F. Gremillion: Which page is that on -- Mr. --
Potter Stewart: Page (Inaudible) 102 Subsection (b).
Jack P. F. Gremillion: A copy of the rules shall be made available to the witnesses before the Commission, whether it's self explanatory and they did make a copy of the rules when they said their subpoena.
Potter Stewart: Those facts or does it not, guess the power in the Commission will adopt to --
Jack P. F. Gremillion: Oh, no. That -- the only way that you could -- the only way you could say that would be by implication, and we say that's exactly what Greene versus McElroy said.
Tom C. Clark: It didn't have authority (Inaudible)
Jack P. F. Gremillion: Correct.
Tom C. Clark: That here was given out.
Jack P. F. Gremillion: Well, they did give him a copy.
Tom C. Clark: (Inaudible) they didn't have a copy.
Jack P. F. Gremillion: But then Congress specified the rules, Mr. Justice Clark. It said rules of procedure. And it says that he will give -- everyone couldn't have a copy of this particular Act. But when they issued the subpoena, they said you have to have a copy of the rules.
Felix Frankfurter: Are you suggesting they couldn't make rules in addition to what Congress had written out, which would do the very thing which you complained of voluntary as supposed by rules. Suppose the Commission has promulgated rules in terms to do what you think should be done. Would you think that offered (Voice Overlap) --
Jack P. F. Gremillion: In other words -- in other words, it -- it -- what you referred to, Mr. Justice Frankfurter, is this. That if Congress -- if the Commission would've said, we don't allow attorney to be present at a hearing and if you're going to have cross-examination --
Felix Frankfurter: (Voice Overlap) of your point.
Jack P. F. Gremillion: And that you're going to rebut -- oh, we wouldn't be here today.
Felix Frankfurter: Well that -- would that be ultra vires if then, they were issued such rules?
Jack P. F. Gremillion: But they did not do that.
Felix Frankfurter: I know, but I'm asking you whether they would have -- it would have been beyond their power to issue such rules as would satisfy your present claims.
Jack P. F. Gremillion: But -- yes, but the difference there would be this.
Felix Frankfurter: I know they didn't --
Jack P. F. Gremillion: That they would be -- they would be granting to us --
Felix Frankfurter: Yes.
Jack P. F. Gremillion: -- what we claim our traditional safeguards.
Felix Frankfurter: The thing would added to -- but they would be adding to what Congress had written.
Jack P. F. Gremillion: But they would only be providing the traditional safeguards which are guaranteed by the amendments to the Constitution.
Felix Frankfurter: So, you can't --
Jack P. F. Gremillion: Something which the registrars were entitled to anyway.
Felix Frankfurter: So you're not arguing or cannot argue, I take it that, they couldn't issue any additional ruling, rules in addition to what Congress had spelled out.
Jack P. F. Gremillion: They could -- they could say that we're going to meet at 10 o'clock every morning and that so and so will be chairman --
Felix Frankfurter: Well, substantive things, such as you want in this case. They -- you agreed a minute ago, that only goes there. But you said they could issue rules to satisfy the claims you're making here for the absence of these claims.
Jack P. F. Gremillion: I think that they could do that, yes. I say to do.
Earl Warren: Well, General, didn't the -- didn't the Congress indicate the extent to which counsel should participate in these proceedings in -- in (c) of 102, when it says witnesses at the hearings maybe accompanied by their own counsel for the purpose of advising them concerning their constitutional rights. Wasn't that --
Jack P. F. Gremillion: Well, of course --
Earl Warren: -- isn't that -- doesn't that indicate to the Commission the -- the extent to which it didn't expected counsel to participate?
Jack P. F. Gremillion: Well, Mr. Justice Warren, that disturbs me quite a bit. I say that it's not sufficient for many reasons. And I have, in mind, the case of Counselman versus Hitchcock. For instance -- and -- and then, we come to a discussion of the Fifth Amendment. Many people, although unwarranted, say that “Where there's smoke, there's fire,” if you refuse to answer a question and denies you the public, you're considered guilty. But at the same time, Congress didn't grant them the question that -- that if they decided to invoke the Fifth Amendment as to any questions that this Commission would ask, they did not extend the power of immunity. It maybe that a registrar could have come in and said, “Well, all sure, I've violating the law, but I maybe prosecuted for it, both federal and by state officials. Can you give me immunity?” That is absent. It -- it's really a -- a unique situation. It honestly is. It -- it's a very unique situation and that's were the many reasons why I say that (c) does not go far enough, that Congress did not provide the -- the right of or denial of the right of cross-examination merely by saying that, because Congress did not have that authority to waive the Fifth Amendment or the way of the Sixth Amendment.
Hugo L. Black: Do you say they couldn't place -- point their argument?
Jack P. F. Gremillion: I didn't hear you, Mr. --
Hugo L. Black: Do you claim that -- do you say that they couldn't plead the Fifth Amendment, what was that?
Jack P. F. Gremillion: Oh, yes. They could plead the Fifth Amendment, but I say that that is exactly -- when they start pleading the Fifth Amendment that that's when they do harm to their particular reputation. Because, although completely unwarranted, the public today as a result of many of these particular hearings on television and so forth, take the idea that where there's smoke, there's fire, and that when you plead the Fifth Amendment, they consider it a -- a guilt.
Hugo L. Black: We have a (Inaudible)
Jack P. F. Gremillion: Oh, yes. But I'm talking about public or program, if Your Honor please and scar and so forth, which would -- this was the very thing that we were trying to protect because the right to a good name is one of the precious rights that we have to protect.
William J. Brennan, Jr.: How would it go, if you suggest, the correct and proper (Inaudible)
Jack P. F. Gremillion: You mean, how would I write a rule?
William J. Brennan, Jr.: How are the rights to -- how are the rules that you suggest that your clients are telling you to attack the misapprehension on that part of the (Inaudible) that arises to something to the Fourth and Fifth Amendment, probably against self-incrimination.
Jack P. F. Gremillion: Well, there might not be the necessity for pleading the Fifth Amendment, if we were given the opportunity of presenting witnesses to rebut the particular accusations with which they were charged. You must bear in mind, Mr. Justice that we have -- we had no idea what was going to be developed at this hearing. We had no knowledge whatsoever, what the natures of the complaints were or what they were about. That the hearing was a one-day hearing, 60 witnesses were subpoenaed, 24 were by compulsory process. The others were kept secret. Now, I might tell the Court something that had happened just recently in the case that I had in the Federal District Court of Louisiana. We had an individual who claimed that he was discriminated against because he belonged to a certain particular organization. It so happened that we had about two weeks of delay in the case during the Thanksgiving holidays and we are not here to investigate that affidavit. We checked into it and find out that he had worked as a janitor at the bank. That the bank had fired him because of the fact that he was a poor janitor. He wasn't doing his work right. And he claimed that he was discriminated against. We checked into his employment (Inaudible) we found out that he was working for the State of Louisiana as a janitor. So when we had the opportunity to find out this information and we had the opportunity to rebut, we were able to disprove those particular accusations such as these registrars were faced here and it's exactly what this Court decided in Peters versus Hobby.
Earl Warren: Mr. Attorney General, as I understood -- as I understood Judge Walsh, before your witnesses took the stand, they were entitled to -- to read or have a copy of the testimony that was taken against them. Anything that is derogatory of them, they were entitled to (c). Now, if that is true, how can it be said that when they take the stand, they have no idea of what has been said against them or what they're going to have to protect themselves.
Jack P. F. Gremillion: Well, Mr. Justice Warren -- Mr. Justice Warren that is not true. We are not given anything, absolutely not. There's nothing in the Act that provides that and there's nothing in the rules of the Commission that apprises us of the information and the charges to which these or the manner that these registrars deprive. And furthermore, let me say this. That -- that what stirs up practically all of this controversy, here we have a one day hearing. Suppose we get eight people from Cattle Parish who says that the Registrar in Cattle Parish has denied them the right to vote, let's say, because of a -- a literacy test or a constitutional test or whatever it maybe. Now, how is that registrar going to determine or how is he going to bring witnesses before that particular hearing. A one day hearing, how is he going to get the opportunity to bring in rebuttal evidence to prove that those particular witnesses are bearing a malice or a prejudice, or that they are not telling the truth. That opportunity does not present itself. But if we would know those things in advance, we would have the opportunity of bringing out a full disclosure of the fact which is the task assigned to the Commission.
Earl Warren: But General, do you -- do you challenge the statement of the Attorney General of the United States that the testimony of witnesses against your clients though it was available to them, before they took the stand.
Jack P. F. Gremillion: It was -- I challenge that. It was not available to them before they take the stand and the order --
Potter Stewart: How did you read, Mr. Attorney General -- how do you read Subsection (j) on page 58?
Jack P. F. Gremillion: “Except as provided in Section 102 and 105, the Chairman shall receive --
Potter Stewart: No, Subsection (j) on page 58, if the Commission --
Jack P. F. Gremillion: Oh, that's one of the rules that --
Potter Stewart: That's one of the rules --
Jack P. F. Gremillion: -- they adopted.
Potter Stewart: Yes.
Jack P. F. Gremillion: “If the Commission determines that the evidence and testimony may tend to defame, degrade or incriminate other person, that shall advise such person of such evidence has been given and it shall afford such person an opportunity to read the pertinent testimony and to appear as voluntary witness or to file a sworn statement in his behalf.” Well, of course, that's self-explanatory, but were -- never were afforded that particular privilege.
Potter Stewart: Well, there never was a hearing, was there?
Jack P. F. Gremillion: That's correct.
Potter Stewart: (Voice Overlap) --
Jack P. F. Gremillion: There never was a hearing. But -- but the Commission has that right. It -- the Commission is the one that determines whether it was defamed, not the person that is accused of breaking the law. The Commission judges that. That's another thing that we complain of, that they don't have the authority to make that judgment. In other words, if I think the testimony is going to defame me, I certainly in all fair play in the hearing that's conducted fairly, have the opportunity to bring witnesses in to disapprove it, because it may vanish like bubbles. And that's particularly true with full testimony. It -- it's bad enough with document or the evidence, but with oral testimony, it's worse. And that's what this Court held in Peters versus Hobby.
Tom C. Clark: (Inaudible)
Jack P. F. Gremillion: But Mr. Justice, coming back, that is idealistic. It is not factual. That opportunity wasn't even known or afforded to us. Do you know when I as -- when the Attorney General of the State of Louisiana was notified officially of the hearing, the letter received in my office was on July the 13th, the very day that the hearing was to be held. I even attempted to find out for Mr. Tiffany the names of the registrars that were going to be subpoenaed. And he had Mr. Rosenfeld call my office and there were correct. There were others -- Mr. Mitchell, the Registrar in Cattle was only subpoenaed on the 9th. I had to write his name in the complaint that we filed in District Court with a pen. That's how fast this thing was developing. As I say, in idealistic -- in ideals and in theory, this is a wonderful piece of legislation and these motives are grant.But in its practical application, it destroys the traditional safeguards that are guaranteed to citizens of the United States.
Tom C. Clark: (Inaudible)
Jack P. F. Gremillion: No. Absolutely not, I did not have the opportunity to. We didn't even know, Mr. Justice Clark, what that nature of the hearing was going to be. Because these particular rule say, that when the hearing is opened, the Chairman of the Commission will state what the hearing is about. So how could we prepare for something on a day where witnesses where -- would have to be brought from all over the State of Louisiana, some as far as 200 miles away, how could we prepare or how could we even submit names of witnesses to rebut, when we didn't even know what the hearing was about. All we knew was that it was going to be on the deprivation of the denial of the right to register and vote by reason of race, color, creed, or religion. And that's the only thing that we could know. We -- we had no idea of any individual charges and I might say that there's nothing in this Act that authorize the Commission's rule in Atlanta on April the 14th, it said they're going to keep these things a secret. They say that they might suffer some economic reprisals. The court below said that there was no evidence of said economic reprisals and I don't know of any here, absolutely none.
Earl Warren: When was this hearing to be held?
Jack P. F. Gremillion: July the 13th in Shreveport.
Earl Warren: I see in the record here a letter dated -- Washington D.C., June 11th, 1959, the Honorable Jack P.F. --
Jack P. F. Gremillion: That's correct.
Earl Warren: -- Gremillion. Dear General -- dear General Gremillion, This one advised you that the Commission and its official meeting held here yesterday, June 10, 1959, authorized a hearing on Louisiana voting complaints pursuant to Section 105 (f) of the Civil Rights Act of 1957, 71 Stat.637. The hearing is scheduled to be held on June 13, 1959 in Shreveport, Louisiana. Sincerely yours, Gordon M. Tiffany, Staff Director.
Jack P. F. Gremillion: That is correct. But we did not know at that time what witnesses were going to be subpoenaed or whether or not, any registrars would be subpoenaed. It may have been that this Commission would have only discussed or heard from the testimony of the sworn complaints. And we did not know, nor did we have any way of knowing that these particular appellees were going to be called as witnesses by compulsory process, until they were served during the week prior to the date of the scheduled hearing. And if you will note, Mr. Chief Justice, the -- the letter following was written on July the 8th and they asked me to attend. And that was the letter that I'm talking about that I received on July the 13th. And, of course, the Commission was well aware that the Attorney General of Louisiana was the attorney for the registrars, because we had furnished them with the copy of that Act in our early negotiations. Well, of course, I was in Shreveport because I had instructed these registrars that if they were subpoenaed to please immediately send me a copy of the subpoena and I can assure this Court that I had a busy week.
Hugo L. Black: And if the Government cannot be proceed in this fashion, try to protect the rights of voters, what in your judgment is a way it can't constitutionally proceed?
Jack P. F. Gremillion: Well, of course, I could really talk for about two hours on that, Mr. Justice Black.
Hugo L. Black: Well, I didn't intended you to talk [Laughs] --
Jack P. F. Gremillion: We come to --
Hugo L. Black: You, of course, would have no right.
Jack P. F. Gremillion: We -- we come to -- we come to -- on that issue, we come to the right of States to determine qualifications of these voters. Now, let me --
Hugo L. Black: I -- I wasn't talking about the legal face of it. Assuming that Congress has the right, by reason of the amendments, to -- to attempt to protect or the -- the Government has the right to attempt to protect people from being discriminated against in their voting, because of their race, what other methods can you suggest besides this that would be constitutional?
Jack P. F. Gremillion: Well, we -- we don't quarrel with the right to vote or the right for a person to register. And I certainly feel and I assert here now that there should be absolutely no discrimination. Unfortunately, you have disturbances that come up in political questions all over the United States and not necessarily confined to Louisiana. And of course --
Hugo L. Black: I understand -- I understand that.
Jack P. F. Gremillion: The -- the --
Hugo L. Black: I'm -- I'm asking the Federal Government -- what method would you say that the Government's views, I presume, you'll say it once? That it could proceed by indictment before a grand jury.
Jack P. F. Gremillion: Oh, yes. It --
Hugo L. Black: You would not have any right there, of course, to be a witness.
Jack P. F. Gremillion: And that is the way that it should proceed. After all there has been many grand jury investigations in my own State, on this same particular question. The registrar or voters in Ouachita Parish was examined by a grand jury on her denial of the right to vote and to discriminate them on an action initiated by the Justice Department. She was exonerated. We also had an action that was filed in -- in Monroe, Louisiana also, involving registrars from Madison Parish and from East Carroll Parish on certain allegations to that effect. Those particular registrars were exonerated. And, of course, behind this, there is still a remedy for a -- for a registrant who claims that he has been denied the privilege to register, because -- and we have ample laws in my State for the protection of those individuals.
Hugo L. Black: (Voice Overlap) processes.
Jack P. F. Gremillion: We -- we have a law which says that they can file a suit in a District Court that has got to be tried by summary process, within 48 hours at no cost and that the appeal -- and that there would be no appeal from the judgment of that particular court, so there is ample redress. There's ample redress through the Department of Justice, the Attorney General and through the State of Louisiana. And bear in mind, I could ask this Commission time and time again, tell us of wrong doing. We're just as much interested in as you are and that for registrars who violated the law or discriminated against, we'll see that they're fired.
Hugo L. Black: Is it your judgment that willful deprivation of the right to vote on the count of race by a registrar is a violation of the criminal laws of the United States?
Jack P. F. Gremillion: Yes.
Hugo L. Black: And that it could be prosecuted in that way?
Jack P. F. Gremillion: Oh, yes.
Earl Warren: Well, I understand your (Voice Overlap) --
Jack P. F. Gremillion: I think -- I don't remember the -- the section that Judge Walsh quoted it in his argument yesterday.
Felix Frankfurter: Part of the Civil Rights Act.
Earl Warren: Yes.
Felix Frankfurter: Part of the original Civil Rights Act, part of the legislation of the Senators.
Jack P. F. Gremillion: Oh, you mean the original --
Earl Warren: Yes.
Jack P. F. Gremillion: -- civil rights cases, yes.
Earl Warren: But General, I understand from the record that when -- when FBI agents went to the registrars to see the official and public records of -- of the voting that they were refused the right to see them on the grounds that they did not come within this --
Jack P. F. Gremillion: Correct.
Earl Warren: -- the section of being a citizen of -- of the parish and that they did not have 25 other citizens vouch for them in -- in -- so they could have an opportunity to see the records --1
Jack P. F. Gremillion: All right. And my answer to that is, Mr. Chief Justice, that we have a statute in Louisiana that says that a registrar has to produce these records upon order of a competent court. Now, I wrote a letter which is at -- generally, which is at page 154 to Mr. Campbell of Minden, Louisiana, concerning that particular request. And I recognized the difference and the conflict between Louisiana law and the particular investigation that the FBI agent was conducting. And this is what I said. And this is all then I could say, “In conclusion, it is our opinion that until such time that some proper court holds unconstitutional, the provisions of the revised statutes 1892,” which is the provision I'm talking about, “or unless some court directs to the contrary, it is our opinion that the registrar of voters should adhere strictly to the Louisiana statute,” which they have to do, because if they don't, they again, are violating the law.
Hugo L. Black: Does this injunction restrain the Commission from summoning the papers from the registrar?
Jack P. F. Gremillion: No. The only thing it -- the judgment is in the record and it said that they will -- let's look at it. It's 261 in the record. No, it's not 261. No, I'm talking about the judgment of the Court (Inaudible).
Speaker: 271.
Jack P. F. Gremillion: 271, “It is ordered, the judge then decreed that the defendants, agents, service and -- servants and attorneys are enjoined and restrained from conducting the proposed hearing in Shreveport, wherein plaintiff registrars accused of depriving others of the right to vote, would be denied the right of apprisal, confrontation and cross-examination. This injunction does not prohibit all hearings pursuant to public law, so and so,” and it cites the Civil Rights Act, “But only those hearings wherein the accused that denied the right of apprisal, confrontation, and cross-examination.” That was the judgment of the Court.
Hugo L. Black: Would that restrain them from issuing a subpoena duces tecum?
Jack P. F. Gremillion: Well, under the Act, if -- naturally, he didn't -- the registrars did not bring their records. They did not comply. And we advised them not to. And under the Act, of course, if they had not complied, then they would have had the -- to go to the Attorney General and get a court order directing them to comply with the subpoena. And I might say that Judge Dawkins stated in his reasons for the temporary restraining order that if the Civil Rights Commission or the Attorney General had asked him for such an order or -- or to comply with the subpoena that he would not have done it until they were given these rights.
Earl Warren: We'll recess now.