Earl Warren: Number 138, William Murphy and John Moody, Sr., Petitioners versus The Waterfront Commission of New York Harbor. Mr. Krieger.
Harold Krieger: Yes Your Honor. Mr. Chief justice, members of the Court. I might say I just want to refer to the facts very briefly although we have gone to them in detail in our brief. In May of 1960, both of these petitioners were subpoenaed before the Waterfront Commission of the New York Harbor, which is a bistate commission having been set up by the statutes of the State of New York and New Jersey and a compact that was approved by Congress for the purpose of investigating Waterfront crime or crime in New York harbor involving interstate and foreign commerce among other things liasioning the individuals to work on the peers. At the time both of these petitioners were subpoenaed to testify in May of 1960, they were -- the commission was asked for appraisal as to the purpose and they were advised that they were investigating a strike or stoppage. Counsels for both of these petitioners at that time urged that the commission was without jurisdiction in that preemption applied and the field had been preempted by the federal government. The commission at that time then proceeded to secure an order of show cause in our State Court, Superior Court why they shouldn't be held of contempt and in the application and in the order of show cause they then alleged and gave the background of the Waterfront Commission, why it had been set up and the various investigations that had taken place in New York and in New Jersey prior to the setting up of this commission and the passage of the statute showing that there had been crimes committed in the state and foreign commerce and there were racketeering and things of that nature, thefts, pilferage, and so forth, and that they had a right to investigate of this particular stoppage in strike because it involved a chief security officer that was employed by the American Export Line. That was the first general appraisal that these petitioners had that the commission was then seeking to investigate a crime or crimes. Because prior to that time they were asked by counsels specifically whether or not they were investigating a crime, the answer was they didn't know or whether it was purely a labor dispute. The petitioners were found guilty by the Superior Court in New Jersey and the decision was affirmed by the Supreme Court. The Supreme Court had held in that case that the field had not been preempted and that the as far as the appraisal was concerned, they were apprised at the time of the trial in a Superior Court of the decision of the Waterfront Commission. We then sought to appeal and apply for a writ of certiorari petition, or petition of writ of certiorari in this Court had been denied. Fact is the Supreme Court of State of New Jersey held that the Devo case was dispositive on the issue. The petitioners were then called back, were then proceeded to go back into the Superior Court to comply with the order and might I say in that contempt they were sentenced to jail until they answered the questions and to pay a $50 fine. They then proceeded and paid the $50 fine and were directed by the Court to appear before the Waterfront Commission to respond. They did appear on October 3rd and at that time when they were interrogated, counsel for the petitioners and I represented them there at that time as one of a counsels, we asked specifically for an appraisal, pertinence and we were advised that we were sufficiently apprised in the previous proceedings and that the purpose was the same purpose as heretofore as alleged in the moving papers in the State Courts that they were investigating and these papers indicated investigation of crime and racketeering. The petitioners then asserted their constitutional rights and statutory rights, and the hearing officer then stated for the purpose of record, some 25 times it appears on that October 3rd date, that he recognized their rights to assert the constitutional privilege and the statutory privilege and the next morning petitioners appeared before the Superior Court and they were purged of the contempt. The court had held that they had satisfied the order and upon the payment of the fine, which still remained, they were released. The Waterfront Commission at that time said they didn't want the case to close up because they contended that they wanted to consider whether or not they were going to then grant immunity. This is also said at the end of the interrogation on October 3rd, so up until that point we had no thought that there was any intention to try to confer some sort of an immunity in this case because of the period clearly in the interrogation on October 3rd, that the Waterfront Commission recognized the use of the constitutional provision here and the statutory provision and fact the Fifth Amendment had been used and also due process was argued at the time on October 3rd. When it appeared on October 4th --
Speaker: (Inaudible)
Harold Krieger: New Jersey Statute Evidence Act of 1960 and might I say at this moment that New Jersey Evidence Act of 1960 -- Your Honor New Jersey Evidence Act of 1960 specifically provides and is broad. “A witness may refuse to testify to any matter that can incriminate him as far as the state and the other state or the federal government” and the history of the statute as far as the legislation is concerned, was an indication by the legislature that they were taking into consideration the Hoffman case and they were making the rule as broad as it was intended in the Hoffman case. When we appeared in -- on October 4th the court had held that these -- as I indicated before that these witnesses had purged themselves of contempt and when the Waterfront Commission has said well we would like to consider whether or not we are going to grant immunity here, the court said specifically I am not concerned with what you may do that maybe another matter, these people have met the order of the court and they are discharged. We read in the papers shortly thereafter that they were going to grant some sort of immunity and then we proceeded to apply for a quashing of the subpoena, well we read this in the paper because we felt at that time there could be no such thing as immunity under these circumstances. Before the return, they have notice to motion for the quashing of the subpoena that Waterfront Commission had ordered the petitioner to appear. Well, they found themselves to be twitched in between, so we appeared, petitioners appeared and then they had some sort of a new form of hearing, it was a public hearing. They called that a public meeting in which the commissioners --the designees rather sat in open hearing, an open meeting, and proceeded to this hearing by indicating that they were now going to question both these petitioners on a matter that they had heretofore, questioned them on October 3rd they were asked for an appraisal. And the decision of the commission was well you have been sufficiently apprised in the proceedings that have taken place heretofore and were resting on that. They were asked specifically this question, will you please produce an order so that we would know the scope of this investigation by this commission, how far, where you are going into, what appeals, and they refused. There was no indication whether that such an order existed, or didn't exist, or whether wasn't, until this day we don't know or whether or not there was such an order by the commission for this investigation. The petitioners were then – then objection was made on the ground of due process, the failure of proper appraisal. However, they continued and the petitioners asserted the privilege of – and specifically stated that they were stating the Fifth Amendment by reason of the Fourteenth Amendment in this application and directly the Fifteenth Amendment because this was a bistate agency engaged in the investigate -- crime in interstate and foreign commerce. Counsel then indicated for the commission or might I say one of the designees was also counsel for commission, my -- Mr. Sirignano was sitting then in place of the commissioner, indicated that they were going to grant the immunity --
Speaker: (Inaudible)
Harold Krieger: Pardon me, Fifth, Fifth Amendment, I am sorry Fifth Amendment, I said Fifteenth, pardon me, well Fifteenth I'm sorry, that was specifically said for and in fact the counsel for the commission Mr. Piagra who appeared at that time interrogating said specifically we understand that you are alleging the Fifth Amendment. Then counsel said, we are now giving you this form of immunity having given notices to prosecutors in Hudson County and New Jersey and in New York County and the attorney generals of both states which is a from the statute itself provides some form of immunity on such notice. Whether or not that is proper or I'm not going into but it seems so much fast, it's not a self executionary statute of immunity, it's one that the commission can decide whether or not they are going to give or not give. However, we objected to it and we also then objected that the immunity was not broad enough. The immunity was not as broad as the privilege and so far as the state is concerned because the state's evidence that we typically provides and this is one state that thought ahead and said that a privilege maybe asserted if it involves any Federal incrimination on 1960 Act and then so far as the Fifth Amendment is concerned by reason of the Fourteenth Amendment and counsel then indicated to the petitioners that they would not be charged or they could not be charged with any crime that they were testifying as to and they were immune from prosecution. Counsel was then asked specifically are you advising these petitioners that they cannot be prosecuted for any Federal offense in this matter and then they took a position for the first time, oh no, we don't have to do that, it's not necessary that we do that, the immunity doesn't have to go to any Federal offense. The petitioners was then directed further to answer and this interrogation continued on insofar and continued to a point where petitioners were interrogated as to whether or not they were still engaged in this type of crime. It probably appeared that during this -- during this investigation the same Waterfront Commission had filed in one of their own proceedings, a charge against the some them in which they named both of these petitioners as coconspirators in that matter involved in this illegal act. They then proceeded immediately to go ahead with a note of show-cause for contempt allover again and directed the counsel to do so, we then proceeded in court and there, there was an argument in court. At the time of the argument, we, prior there too had served this motion to quash subpoena which was retainable on the same date as the order show-cause for contempt and we also served upon them a demand for bill of particulars and we served upon them a demand for interrogatory and a demand for jury trial, reserving the right for admissions triage and so forth. The order of show-cause merely maybe turned upon whether or not they should or should not be held for contempt, but the petitions filed said, requested and prayed that they be held the both civil and criminal contempt, but the order to show-cause did not. On the returning date of this order to show-cause, we first proceeded to argue the question of law, because it was our contention and we also joined the motion to quash that the immunity was not as broad as a privilege and therefore there should a disposition on the motion and if the motion is disposed off in our favor that would end the case. We continued to argue at length on the questions of law and during the argument some questions came up as this taking of testimony and through out the record it appears that I argued that matter in which I stated to the court that at the time of the trial we will develop certain factors and the court for the first time and during this argument said, oh there will be no trial and there will be no testimony taken. We are going to dispose over this now. We had gotten to the point where and to avoid any question because in the briefs to the Waterfront Commission they had indicated that we haven't pinpointed any particular Federal offenses and we have one case in the State of New Jersey, Vaitauer, in which there have been some question by the Supreme Court that a witness must pinpoint the area in which he could incriminate himself. And I had offered proof on that question so that there could be no question about that so that there could be no argument later on, there was no proof of it and finally the next day the court said well I will hear you on one question only and from which I've put in some proof on the one the one question so far as incrimination is concerned, a Federal incrimination and then we offered a various proofs insofar as (Inaudible) interstate commerce had to be involved. We submitted a brief which was incorporated part of the record involving conspiracy interstate commerce, interference with interstate commerce, civil rights and things of that nature and persons right to hold the job and things of that nature. The court then disposed off the case by holding the defendants guilty -- or petitioners guilty of both criminal and civil contempt and sentenced them to 30 days in the County Jail, $50 fine and to remain confined until they answered these specific questions that was set forth in the order. We appealed to the Supreme -- we appealed appellate division and the Supreme Court listed the case. And at the time of the argument before the Supreme Court in this opinion various questions were raised and the Supreme Court first held that as far as privilege is concerned, as far as the waiver is concerned, as far as immunity (Inaudible) that the immunity didn't have to be as broad as to cover Federal incrimination. In (Inaudible) there was this positive of the issue and the argument insofar as preemption is concerned they held that that had been disposed of the previous case and it was no longer before the court. As far as jury trial is concerned the court held as far as that was concerned, that was discretionary with the Judge as to whether or not they should be. What became so obvious and the court in it's opinion will indicate that we had no trial that they reversed the criminal contempt sent that back, made the judgment to read that the petitioners would be confined to jail and pay the fine of $50 until they had purged themselves but the fine would remain however. Now, we respectfully submit if Your Honors please, if the Court pleases, that we have an agency here and this is somewhat different poppy in many of the cases that came before this Court heretofore, we have an agency that's engaged in investigating crime in interstate and foreign commerce, no question about that, that's the job, both states gave them to do and that's what they were doing. Now it's some form of agency I don't, would say an interstate commerce (Inaudible) Federal agency if you want to call it such, if possible, because in that statute they have a right to get Federal funds and if they get Federal funds they have certain duties there in, and we respectfully submit in this case that the Fifth Amendment applies because it is engaged in interstate commerce, engaged in crime -- engage in investigation of crime in interstate commerce, the Fifth Amendment applied by reason of the Fourteenth Amendment, they have just considered an agency only at the state of New Jersey and New York. We further contend that there was a failure to give due process here, there was failure to have a trial on the contempt now that has been called civil contempt, frankly I can say it the civil contempt because it seems somewhat confused. I don't know of a civil contempt that puts a penalty on a man as well as sends him to jail. In fact there is, that we've (Inaudible) but someday we've got to face this other criminal contempt unless there is a reversal by this Court on a principle issue but they have a penalty to pay $50, they must remain in jail and I especially contend that this is a criminal contempt call it by any name you want to call it, any man is fined, any man has a penalty to pay that's a criminal contempt on the (Inaudible) because he stays in jail until he pays his penalty, as well as answering the questions. However, the question of double jeopardy is not before this Court. We respectfully contend that the statute of the State of New Jersey applies here. Now I know this Court will not consider a determination made by a state Court insofar as interpretation of it's own statutes. In this case and here is how the Supreme Court got around this case insofar is that Privilege Act of 1960, they said the Privilege Act of 1960 didn't repeal immunity, didn't repealed the immunity statute of the Waterfront Commission. Now we got this moved, immunity statute of Waterfront Commission is limited to the Waterfront Commission nobody else, we have no general immunity statute in New Jersey. Then this 1960 Evidence Act didn't repeal that, because if they haven't said that they would have had to say that the Evidence Act applies. Now I respectfully submit to this Court that there was a denial of equal protection of the law here, because this is the only class and group of people that haven't got the advantage of that Evidence Act, because of the Waterfront Commission, now there is nothing in a Waterfront Commission Act that recognizes the right of privilege. I respectfully submit that when the Evidence Act of 1960 was passed, they repealed the previous Privilege Act, specifically repealed the previous Privilege Act. Now if and that is so the statute of 1960 repeals the previous Privilege Act and if 1960 Act of Privilege doesn't apply to these people then there is no Privilege Act in the state of New Jersey that applies to these petitioners who are connected directly or indirectly with the Waterfront Commission already investigation by the Waterfront Commission, there is no Privilege Act in the state of New Jersey applying to this class of people. As a class they are eliminated from a privilege act in the State of New Jersey, we have no constitution provision in New Jersey.
Arthur J. Goldberg: (Inaudible)
Harold Krieger: No, I'm not making an argument that for state to give immunity must give it to everybody, but I'm arguing that under due process and I think we accept it as such, that immunity statute -- privilege statute exists in every state either statute or constitution provision then this would be the only state that they doesn't have a privilege statute as far as group of people. Now can you eliminate a group of people and say this group of people shall never have the right to exercise a privilege? That's what it would mean.
Arthur J. Goldberg: (Inaudible)
Harold Krieger: I believe sir that you can grant immunity to certain people under certain circumstances. I think that's clear, that's been established by -- in other cases, but I don't go along and don't feel like you can deny a privilege to only a class. Privilege and immunity are two different things; one is separate apart from the other. Of course the courts have tried to get around by saying the privilege is substituted by giving immunity in some situation that constitutes the use of the privilege, but even in a statute, the statute says that the privilege -- that the immunity doesn't apply unless they have a privilege so that it's recognized that there must be some privilege, now which privileges can be applied here? The privilege of the 1960 Evidence Act or the privilege under the Fifth Amendment or the privilege of the Fifth Amendment by reason of the Fourteenth Amendment, the due process. Now I respectfully submit, that where we have a commission that's engaged specifically in the investigation of crime and inter-state and foreign commerce, that all a crime could be involved, that they could possibly investigate would be in that area, where we have a commission that works in close cooperation with Federal authorities, I see no difference between this commission or the Federal Bureau of Investigation. As this Court said in the Claire case. In a majority opinion it said, this commission cooperates with the customs, authorities, and what's imposed connection, a cooperation with him. Now I respectfully submit also my state to the Court that that -- I'm just going over -- that in this instance they had failed to grant any immunity that would be cognizant with the crime, that could possibly be involved, a direct recognition of them. I might say further that that the courts have denied these people equal protection of laws. I might say further that and they failed to give them discovery, because we tried very hard in this case and I don't know if anybody would have tried harder to get an appraisal, pertinence during the investigation, during examination in the courts and denied in every instance, in fact there the Supreme Court said, well we're not going to pass upon the question of discovery here because it's unnecessary, we dispose of that by reason of that Mapp case because it doesn't make any difference if they are working together with the Federal Authorities. Now there is something said in that brief they know of no inquiry being made, but nothing by Federal Authorities, but there is nothing in the record to that affect at all. Might I reserve the rest of time, I have I have one other question and waiver of estoppel and I'd like to use that if I may, that's asserted by my adversaries in my rebuttal argument, and some of the others I'd like to rest on my brief on the other points raised. Yes Mr. Justice.
Speaker: (Inaudible)
Harold Krieger: Yes, I feel this case should overrule that. I don't think there is any escape why they should be sir. I think we've got to meet the question head on once and for all. The Court did it in Mapp versus Ohio, I think they should do it here and be consistent. I think it calls for consistency. I think the Feldman case, even the majority opinion Mr. Justice Frankfurter said that the Fourth and Fifth intertwined with each other. He said it doesn't apply, but he said they work together in his majority opinion and might I save -- I'll save the rest of time for rebuttal unless there are specific questions (Inaudible)
Earl Warren: (Inaudible)
William P. Sirignano: Mr. Chief Justice may I please the Court. At the outset I would like to state to this Court that the Waterfront Commission is a State Agency pure and simple, and the mere fact that it cooperates with law enforcement officers on some occasions does not make it a Federal agency. There are some questions in this case that are peculiar to this particular case. And it is our position that the Court can reach a decision in this case on the particular factual situation here without arriving at the general policy consideration of Knapp v. Schweitzer and the Feldman case, and those are the questions of waiver, estoppel and the claim of the incrimination being a reasonable one in this particular case. When these petitioners, first appeared before the commission pursuant to a subpoena, which at that time was investigating whether a work stoppage that was occurring at the Hoboken Piers, contained on the part of any of the participants any violation on the Waterfront Commission Act. They took the position that the commission had no authority to conduct an investigation to determine whether any violations of the Waterfront Commission compact were being committed on the part of any licensed personnel or any other persons. They were specifically asked, do you claim that your refusal to answer questions is based on your possible incrimination and the answer was no. We refuse to answer questions because this is a Federal matter, it involves interstate commerce, it's a matter that has been preempted by the Federal Government and the Waterfront Commission is a (Inaudible) local in this area. Certainly, there is no question that matters that do involve work stoppages, labor problems may also be violations of state law. For instance simply the matter we are looking here as to whether there was any coercion in these particular facts work stoppage. This matter was taken up. They refused to answer. We bought a proceeding to cite the petitioners in contempt. Even at the first contempt proceeding, the petitioners maintained that there were no crimes or possible crimes involved here and that we were just out of our scope in bringing this proceeding. The Court did not recognize any such crime grounds and they were held in contempt. They went on to appeal in the Supreme Court and it was affirmed. They were brought back pursuant to the subpoena that was continuing in this investigation and it's the same proceeding, and upon their reappearance after a lot of talk, much of which I was unable to understand what their position really was, they finally said, we refuse to answer on the grounds it will incriminate us, a complete reversal of their first position. Now if that particular proceeding, the subpoena was adjourned and it was specifically told that the subpoena was being adjourned to determine whether or not the commission wished to grant immunity in this case. After a discussion with the commission, the commission decided to grant such immunity and unnecessary pre-requites under our immunity statue which is similar to the immunity statue in Knapp versus Schweitzer, it's copied exactly after that one, was given to the various district attorneys and the attorney generals involved. On October the 27th, the witnesses were called back. They were questioned and again they took the position that they refuse to answer on the grounds of incrimination. At this point in a pop-up proceeding complying with all requirements of the statute and by direction of the commission or the commission designees, they were directed to answer, and under the statute that direction confers immunity. Now for the first time they raise the question of Federal incrimination and specifically in that proceeding they were told that there was no law that required a state to grant the immunity, nor could state grant such Federal immunity that would protect them in their refusal to answer and they persisted in that refusal. At that very proceeding counsel was directed to institute contempt proceedings for their refusal. Again it went right through another series of litigations. They were convicted of civil and criminal contempt in a superior court. It was appealed to the Supreme Court, the civil contempt was affirmed, the criminal attempt was remanded for new trial on the basis that they should have been given an opportunity to present evidence and to their mottos and refusal to testify.
Speaker: I don't quite get your way as you pointed if I may say so, is it because they didn't plan to stand on there the privilege if they had one and first proceeding if they were barred from resorting to it thereafter?
William P. Sirignano: That's right sir.
Speaker: What's that -- I was going to ask you, what's the rationale, I don't understand it?
William P. Sirignano: The rationale is that you cannot and the Supreme Court has so said, continue a litigation one step at a time, that you must make your position clear, so that if there is a determination on the position, then the question will be resolved rather than take it step wise, first to claim no jurisdiction, you come back and then you claim another ground and then you come back and claim the third ground and it goes on ad infinitum. Yes sir.
Arthur J. Goldberg: (Inaudible) on page 222 of the record the Supreme Court (Inaudible)
William P. Sirignano: Yes and they did so on two grounds, one was that it became unnecessary to determine that and decided on that ground because they were doing on the broader ground that they didn't have any Federal incrimination anyway. And then number two ground was that we did not raise it in the Court below and we submit that we did raise it because we argued to the Court that these -- the petitions were playing fast and lose with the Court by taking inconsistent positions that did not claim it before.
Arthur J. Goldberg: (Inaudible)
William P. Sirignano: Yes, I think so because if that Federal right is involved here that we could urge any ground in a record concerning that a Federal right and if there was a waiver I think this Court should consider the waiver.
Speaker: But it's not your Federal right, it's their Federal right.
William P. Sirignano: That's right, and I think they've waived that Federal right.
Arthur J. Goldberg: You argue (Inaudible)
William P. Sirignano: That's correct sir, that's my argument. Now, besides the waiver we also argue that they are estopped, that they can take inconsistent positions with the Court and finding out that they are not successful in one position make a complete search -- switch and then take another position which is directly contrary and the third position is that we come from the ground of the reasonableness of their claim. In the first context, the thrust of their whole argument was there were no crimes at all committed here and therefore we could not enquire. Therefore they must have believed that there could have been no possible incrimination, when that was not held to be successful they then switched and say, now we are concerned about crimes and when they took the stand in a superior court to pinpoint the area of their crimes, the records show there is lot of mumbo-jumbo and the only thing that appears to be that they are claiming is first from Interstate Commerce. Now I think it takes an awful lot of gullibility to believe that a work stoppage involving 400 or 500 people takes places and ensues for the purpose of committing some thefts and then all that context of this record, their claim is not reasonable that they are fearing Federal incrimination.
Speaker: (Inaudible)
William P. Sirignano: Only in the briefs, never -- in the briefs in this particular case in this Court, never before.
Speaker: (Inaudible)
William P. Sirignano: Before the Court?
Speaker: (Inaudible)
William P. Sirignano: We took the position there might have been a possible violation of the state law 530 cohesion of the Penal Law of State of New York, Section 530.
Speaker: (Inaudible)
William P. Sirignano: That's a misdemeanor, it's a misdemeanor to coerce a person to do something he has right not to do and that was the area of the investigation. Now, on all these grounds, I think that this Honorable Court, could decide this case without reaching the main problem or the main concern of the Knapp versus Schweitzer and the Feldman case.
William J. Brennan, Jr.: We don't agree that we may review the waiver and stop of point in the face of the determination of New Jersey Supreme Court. Is that on that premise that we can't agree with you, can we avoid reaching the other question?
William P. Sirignano: No.
William J. Brennan, Jr.: Then what's your position?
William P. Sirignano: Then my position is before this Court is that the petitioners have no right to give you the answer on the basis of Federal incrimination.
William J. Brennan, Jr.: Knapp versus Schweitzer?
William P. Sirignano: Knapp versus Schweitzer and Mills versus Louisiana, Jack versus Knapp. And that the --
Byron R. White: You would say that was true whether the fifth applied to the states or not.
William P. Sirignano: It has absolutely nothing to do with it. We are not concerned whether this Court determined that the Fifth does apply to the states or doesn't apply to the states because I think this question stands alone, it is entirely independent of that.
Byron R. White: So is it really then what you got -- you just get to Knapp against Schweitzer rather than the Fifth Amendment question.
William P. Sirignano: That's correct.
Speaker: (Inaudible)
William P. Sirignano: If Your Honor pleases, I'd base that statement on the hard decisions of this Court. That even though the Federal government requires that a man be protected, the Constitution requires a man to be protected against Federal incrimination or Federal proceeding, the cases this Court holds they he need not be given protection in a state proceeding.
Speaker: (Inaudible)
William P. Sirignano: No that's not -- as I see it Your Honor, Justice Harlan in the (Inaudible) case felt that the Fifth Amendment applied to the states, but yet when it came to the Murdoch case --
Speaker: (Inaudible)
William P. Sirignano: That's right, he was in dissent, right, but when it came into Murdoch case –-
Speaker: (Inaudible)
William P. Sirignano: In the Jack v. Kansas case, he felt that the Fifth Amendment was not required that the states honor the privilege against self incrimination.
Arthur J. Goldberg: (Inaudible)
William P. Sirignano: Pardon?
Arthur J. Goldberg: (Inaudible)
William P. Sirignano: I don't think that the Feldman case is reached in my argument Your Honor.
Arthur J. Goldberg: (Inaudible)
William P. Sirignano: Pardon?
Arthur J. Goldberg: (Inaudible)
William P. Sirignano: Because this case is not right for the determination as to whether Feldman should stand or not. There is no threat or there is no prosecution pending in this case against, the Federal prosecution pending against these defendants. It's been four years since you've come to act, and there hasn't been the slightest interest on the part of any Federal prosecutor and the remoteness of it being one is obvious in the facts itself.
Byron R. White: Well, what if the Feldman rule the other way though? Let's assume that Feldman is overruled by the Court now, let's assume that it had. What would be the situation for you then?
William P. Sirignano: By that do you mean sir that the man could not be incriminated for felony had he given testimony in the state proceeding?
Byron R. White: Given a -- did give a testimony here, is not being introduced in a federal trial.
William P. Sirignano: Right.
Byron R. White: What would be the -- what would have been the situation here then?
William P. Sirignano: He should have been held in contempt and this Court should sustain it.
Byron R. White: So you get to Feldman, it's easy to get to Knapp?
William P. Sirignano: On that theory, yes sir.
William O. Douglas: Doesn't the matter of inquiry, you said the commission was not a Federal agency.
William P. Sirignano: Yes.
William O. Douglas: But doesn't the commission deal almost exclusively with Federal questions, interstate questions?
William P. Sirignano: On the contrary Your Honor, very rarely do we deal with the Federal questions.
William O. Douglas: I thought you owed your existence to Federal compact.
William P. Sirignano: No to a compact between states.
William O. Douglas: That's what I mean.
William P. Sirignano: And the only Federal participation is an approval by Congress. There is no Federal member to the --
William O. Douglas: That's enough. I think you're in the inter-state field otherwise you wouldn't have a Federal compact.
William P. Sirignano: Only so far as the Constitution requires that a compact between states -- get Congressional approval, but strictly in state activities and the licensing of the, watchman, longshoreman, stevedore doing business in the conducting of hiring calls, employment centers, we are, we are not in interstate commerce, in anyway concerned with it. We say that the dualism that's opened up in the Knapp versus Schweitzer case concerning the respective fields of the state and the Federal Government should be preserved because it is recognized, the state have the primary responsibility of enforcement of criminal law into our system of government.
Speaker: How could a state constitution under the supremacy clause, confer Federal immunity on the witness before it without consent of federal authority?
William P. Sirignano: They could never confer Federal immunity Your Honor. The only possibility is that the Federal government makes the determination in connection with a Federal case, that the Fifth Amendment requires that that testimony adduced by the compelling state statute be excluded. It's not the state that excludes it is the Federal government and the statute and Federal Court that will exclude it.
Speaker: Well, that's just around, I think you are talking about Feldman now?
William P. Sirignano: That's correct sir.
Speaker: If that's a constitution (Inaudible) in some kind then that's the same thing you are saying that the State's (Inaudible) Federal government can (Inaudible)
William P. Sirignano: No more than that a police officer, well those (Inaudible) what coerces a confession of someone in the State Court and that could, the court will not admit that that's why giving Federal immunity, he is not referring to Federal immunity the courts will just admit into evidence because the Fifth Amendment protects that person.
Speaker: (Inaudible) not for give federal immunity but (Inaudible) the Constitution may not (Inaudible) that federal immunity is not a privilege (Inaudible)
William P. Sirignano: Certainly is, it's a much dependant and much more drastic proposition because in order to do that the Court will have to decide with greater interest in the enforcement of a criminal justice, was liable enforcing that particular proposition you suggest against the enforceability of the law and the effectiveness of law enforcement in the states and it's our position in this case, that the Mills versus Louisiana and Knapp versus Schweitzer rule should preserve that dualism and that if this Court feels that they must be given some protection in advance to a state witness then, the way to deal with that is to not upset Knapp versus Schweitzer but take another look at Ullmann. And taking another look at Ullmann, you can't consider that would be consistent with the role that this Court has taken in the search and seizure cases. Now this is the first case that it comes to this Court since the Elkin case, where the supervisory rule was overturned and if the Court feels that in the light of the Elkin case they must reconsider Ullmann and exclude this testimony, but still preserve the right to the Federal government to prosecute if they receive entirely independent evidence not at all connected with the coerced testimony or not the fruits of that testimony then that will still preserve the contempt, the decision in this case. The petitioners have some contentions here in which they claim that they were entitled to a jury trial. This is a civil contempt and I know of no case either state or Federal that requires that there be a jury trial in a civil contempt case. There is no question --
Potter Stewart: Wasn't there an unconditional fine imposed?
William P. Sirignano: Pardon.
Potter Stewart: Wasn't there a fine imposed?
William P. Sirignano: Yes, there was.
Potter Stewart: Which he had to pay regardless of whether or not he later answered the questions?
William P. Sirignano: That's correct, but he did not remain committed until he paid that fine. Knowing he may commit until --
Potter Stewart: That was an unconditional punishment as opposed to the fine?
William P. Sirignano: That's right, $50 fine which is permissible under the Civil Contempt Statute of the State of New Jersey. He also claims that he was entitled to a trial --
Speaker: (Inaudible)
William P. Sirignano: To remain incarcerated until he confines with the Court order to purge himself.
Speaker: (Inaudible)
William P. Sirignano: I think that's the maximum fine Your Honor, I think so.
Speaker: (Inaudible)
William P. Sirignano: In principle until you testify. No stated imprisonment.
Speaker: (Inaudible)
William P. Sirignano: Right. In this case there was also conviction for criminal conviction and which was reversed, which carried a state imprisonment of 30 days. There is also claim that he was – petitioner was entitled to a trial on the issue of good faith. In McComb versus Jacksonville Paper, 336 U.S. 187, says that in a civil contempt case, that the motives are material as a defense. In fact they are even material in the criminal contempt Sinclair versus United States and again they may purge themselves by testifying at any time. They also claim that they were asked for discovery and they were not given discovery and they claimed they were forced to take the privilege of self incrimination as the doc. Again this is an inconsistent position of the petitioners. First they say they fear self-incrimination, and then they say they are in the dark and they don't know what's going on. But at any rate this Court had held in Hannah versus Larche 363 U.S, that it's not necessary to make a complete disclosure of what the investigating body is looking into in order to compel them to answer because in effect it would destroy the efficacy of the investigation in many instances if that were done. And as to the argument about the equal protection of the laws there is no question here, this is an immunity statue of general application to anyone who comes before the Waterfront Commission in the inquiry if he is granted immunity the statue applies to him. It's just like special immunity statues and special cases and special crimes, and that certainly is not (Inaudible) by this Court, an equal protection of the laws. For the reasons stated I urge this Court to reaffirm the conviction of civil contempt in this case.
Harold Krieger: Your Honor may I --
Earl Warren: (Inaudible)
Harold Krieger: Thank you sir. I am so much confused frankly. I don't think my learned brother Sirignano intended to mislead this Court, but I think in stating some of the facts, he is error. Number one, the first time that these people, the petitioners were faced with the question as to whether or not they may incriminate themselves, they asserted it definitely and may I read from the record. At Page 30, in fact it's 38, at the first hearing on October 3rd after when they came back to purge themselves of contempt when they appeared they said specifically and this appears some 25 times and I'm not going burden the Court in that respect, we pointed out in our reply brief the number of times and they said we stand on our constitutional right and in other instances they say the statutory rights as well as constitutional rights. And this is the interesting part of this. Mr. Veigra who represented the commission said you are standing on your rights and they said, yes. Mr. Cree, you recognize the right of the use of his privilege of the Constitution? Mr. Veigra I did recognize that. Mr. Morseman who is sitting to my right here next to Mr. Sirignano says not withstanding the fact that it was probably waived, they continued to recognize it. Then when we got into Court, the judge on the purging of the contempt said specifically on Page 45 of the record, that Court is satisfied that they have purged themselves of that contempt, they have obeyed the subpoena, appeared for examination, they have been examined by the commission and the record of the transcript of the testimony as read to this Court, which is part of this record in the case that their refusal to answer was recognized as a proper ground and legal basis for their so refusing to answer those particular questions. As the record then stood, namely, on the basis of their constitutional right that it may tend to incriminate them. The examiner so states many, many times in the record that had been presented to me. The fine has been paid. Now when counsel says the fine had been paid so there is no misunderstanding, the fine had been paid had been in the first contempt at the time of the purging in May of 1960, in this instance that stills stand open and on our law that person will stand confined to jail, an allowance made for each day of the $50 until the $50 is paid, at the penalty there is no question about that. Now insofar if Your Honor pleases, as the incrimination is concerned our Supreme Court very clearly indicated that when in their opinion they said this on page 230 I believe it is, the opinion, page 230. In short, the Waterfront Commission when acting within the orbit of a governmental responsibility which the states have expressed or by fair implication agreed to vest in it was intended to be free for many unilateral restraint by either state which might coerce the commission in its effort to eliminate evil conditions in an area where there is an extensive activity in international and inter-state commerce, and it goes on in following paragraph, “if at defendant's content a witness may claim the privilege against self incrimination with respect to federal clients notwithstanding a conferral of bi-state immunity by the commission, it would follow that there could no effective investigation not only of the state aspects of such crimes, but even of the non criminal aspects of Waterfront Commission since possible federal criminal overturned are frequently present. This is so because of the nature of the Waterfront activity and its consistent involvement with interstate commerce and other such areas of federal jurisdiction. Since the commission cannot grant immunity as to the federal crimes, it will remain helpless.” Then the Court goes in a footnote and this is most interesting, the Court recognizes, our Supreme Court of New Jersey recognized that there was incrimination here, as far as federal verdict. I think Mr. Justice Goldberg asked whether or not the Hobbs Act was urged and the Hobbs Act was set forth as one of the crimes, in fact it appears in our papers. Every one of the events that appears in our brief in this Court were cited in the trial court as the reasons of throwing incrimination, not alone the testimony but a record was given to the Court and made part of the record, the setting forth, the various crimes that could be involved. Now here is what the Supreme Court said in their opinion. Of course recognizing the situation of federal incrimination here, Supreme Court recognized that clearly, in fact it refused to give us discovery before isn't it, upheld the refusal and then went on to say, of course it is not for us to say whether the conditions grant of immunity would be honored in a federal criminal proceeding in Feldman versus United States. It was held by a four to three vote, that testimony defendant previously compelled on the sanctions of a state immunity statute, could be used against him in a federal prosecution. If Feldman were overruled as they compelled testimony held inadmissible in the Federal Court, a witness would be free to testify under the state immunity grant and so forth. Now might I say this to this Court? In examining the briefs as submitted by the respondent in this case, what they have said in their brief and may I quote them from page 45, “Thus this Court believes that the petitioners must by protected against federal incrimination.” There is a recognition. There was a recognition from the day it appeared on October 3rd, at the time there were fresh from contempt -- of contempt on October 4th. On October 27th when they again report back, there was a constant recognition of the fact that there could be and would probably be and I use in this instance probability, not possibility, probability, because in this instance because of the crime that was being investigated and the thing that was going on at that particular moment, that they were investigating and they say in their brief that testimony maybe compelled and the Court should hold in this case that the Fifth Amendment prohibits, here is what the respondent says, that the Fifth Amendment prohibits the use directly or indirectly of petitioner's testimony in any federal proceeding, such a decision involves of course overruling of Feldman and then they go on to indicate that the Feldman should be overruled that's why my opponent's arguments today shocks me a little bit, and use that brief in which they recognize and say that Feldman should be overruled. Now we respectfully submit in our reply brief here, based upon their brief that they submitted, where they contend that the Fifth Amendment probably applies and the Feldman should be overruled. We say if that is solved taking their argument as given to this Court, and this Court only goes to the extent -- however we say that this Court should based on overrule Knapp versus Schweitzer, but if they say, in their argument that sufficient if you overrule Feldman versus United States, that will take care of the situation, that will complete it and protect these people, then we say we should a reversal in this case, no question about that, due process requires that, when we were faced with the obligation of making a determination we were faced with the law as it stood. The Feldman is still law of our land. It hasn't been changed. It exists. These people have (Inaudible) as words used by some of the justices in this Court between a state and a federal, if they didn't do one, this would happen and if they did that the other thing would happen, either they go to jail for contempt, or to go to jail for some federal offence, one or the other they were throw in between both, and especially by an inter-state authority of this nature. Now we respectfully submit to this Court not like --
Earl Warren: (Inaudible)
Harold Krieger: Thank you very much I rest upon it, thank you very much. I thank the Court.