Earl Warren: Number 14, The matter of the Petition for a Writ of Habeas Corpus for Harry A. Groban and Nathan Groban. Mr. Graham.
James F. Graham: If it please this Honorable Court. On January the 22nd, 1954, a fire occurred on the premises of the Dresden Woolen Mills, which is located in the village of Dresden, Muskingum County, State of Ohio. Almost immediately following this fire, the State Fire Marshal, pursuant to the Chapter 37 of the Revised Code of Ohio, commenced his investigation. And under the powers of that investigation, subpoenaing to Columbus, the owners and proprietors of the Dresden Woolen Mills, Mr. Harry and Nathan Groban, who are the petitioners and the appellants in this matter. At the appearance in Columbus before the State Fire Marshal, the Fire Marshal read to the petitioners Revised Code Section 3737.13 which is cited in our appendix, declaring a hearing to be private. That our -- the counsels or myself and my father's advice, the appellants at that time requested to be with counsel. This was the denied. Therefore, the petitioners-appellants refused to be sworn and refused to be testified. And at that time, under the powers granted to the Fire Marshal, the Fire Marshal committed them although technically, they were committed. We immediately filed our writ of habeas corpus in the common pleas court on March the 1st, the same day of the hearing and proceeded in this matter. These are the facts. They're outlined in our brief, the appellant's brief. I would like to add to that or supplement those facts with additional facts in view of the appellees' answer brief thereto with a copy of which my father and I received last week and did not receive a printed copy until yesterday morning. In the answer brief, they point out that that there was no actual incarceration. That was at page 1 of the appellees' brief. They spoke of an open hearing on the right of counsel at page 5. They speak of abrogated power of an investigator on page 7. These facts I feel will explain some of these various points that are mentioned in the appellees' brief. At the time -- at the first instance of the investigation by the Fire Marshal, the assistant Fire Marshal, Willis S. Peterson was accompanied by a Mr. Donahue who was a representative of the National Underwriters -- Adjusters rather which, in short, the appellant's building. It was stated to the appellants at that instance that the amount of fire loss claim would be a factor in determining one of the crime of arson, has been committed. On that particular day, they appeared -- Mr. Peterson appeared with a tape recorder and accompanied by Mr. Donahue. He advised the appellants that they were to commence to testify and it were to be taken down on this recorder. At that instance, they phoned our office. My father who had represented the company for a number of years was out of the city and could not be reached. I myself took the phone call, and at that instance, was advised by Mr. Peterson of the specific, Section 3737.13, where he claimed he had the power to exclude counsel. After briefly talking to him, I said that I would have to educate myself a little farther in the matter and I would like to call him back within a half an hour. I did that and at that instance, I advised him that although I had read the Attorney General's opinion that is cited by Judge Clifford in the common pleas court and is to a transcript to this record and referred to and relied to in that opinion, I could not bring myself to believe that it was not a constitutional deprivation of due process to exclude counsel in a hearing of this nature when he had been given so many other powers by our legislature. At that instance, the Fire Marshal, assistant Fire Marshal became incensed and advised me by -- on the phone that he was going to have a hearing in Columbus, subpoenaing these men, where this -- subpoena a different station, bringing all of their records of all the company to Columbus, and at that time, they'd had no right of counsel. I say this for the very minute I might have, although, all of these facts are not in the actual record. It must be assumed and can be supposed in this instance that such are the facts in this record because with a layman with this power, I submit that such could be the case at any instance. If a man has this power with no limitations, personalities can become involved.
Speaker: You have grand juries in Ohio.
James F. Graham: We have, Your Honor.
Speaker: Do you allow witnesses before the grand jury to be represented by counsel?
James F. Graham: No, Your Honor. It becomes secret, but I think there is a very distinct difference between a grand jury who does not -- is not paid, it is not their duty. They are his peers or his equals, 15 in number. There is safety in numbers for personalities. They are not there to -- to see that the person is with one particular goal. They are individuals that have no -- are not paid by the State for an accomplished purpose. I think that is the -- the distinction and the secrecy there that -- that they are enclosed is because the public in general I think when they are called upon to pass upon their fellowmen are not required to have knowledge as to -- to be notarized as having put the accusation or point a finger to one of their fellowmen. I think the underlying theory of the grand jury is entirely different than it is to an investigator in a crime of appellant.
Harold Burton: And is it true, is it not that a grand jury cannot commit anybody to jail himself that that's to go through a judge or a jury?
James F. Graham: That is right, Your Honor. If -- if the grand jury indicts then it goes through under the -- they commenced the proceedings to the trial. The actual step here is one step removed. Actually, I assumed that in the instance that the Fire Marshal in this case, if he had enough evidence, although he can arrest and has the power of arrest in the 3737.10 of the Revised Code, they would still have to indict him to the grand jury in the State of Ohio. Nevertheless, I feel that the harm is done in so many of an -- an investigation where the man has the power of subpoenaing. And then on top of that, has the power to arrest in a closed hearing where the -- the records, the -- the law does not prescribe that every word is transcribed. It says that the testimony shall be required or submitted or reduced to writing. Well, that's a little bit different, I believe than a -- ordering that the hearing must have a court reporter or somebody that transcribes the whole hearing. I -- I feel that in this particular instance and I think it will also must be a supposition that if personalities become involved, I would venture to say that there would be a record that would not be often a true record.
Harold Burton: But here, you have the particular point, don't you? There was an order of committal whether he had actually spent the time in jail or not, is ordered and committed by the Marshal without any intervention of any judicial authority whatsoever.
James F. Graham: That is right. That is directly the sections that you're referring to, Revised Code 3737.10 and .99 which are identical or almost identical with the sections of the Michigan statute that are attached as Appendix B to our brief and are -- now came before this Honorable Court, in the Murchison and in the In re Oliver cases.
Harold Burton: Now, I note in your brief that you say the question is the Fire Marshal's right to summarily commit has not been raised and therefore has not been considered in this case, I think.
James F. Graham: That is right, Your Honor. You see, I feel before the Murchison and Oliver cases will become directly in point in controlling on all force. We would have had the petitioners in this instance sworn and then as becoming recalcitrant or being obstinate, have been found in contempt by the Court and summarily committed, and then we would have raised that enough where you had -- then question those particular statutes before this Supreme Court of Ohio, I think then those particular sections would be directly before this Court. My -- my contention is held throughout this brief. Is it -- you cannot disregard the In re Murchison and In re Oliver findings, but they are enlightening in showing the power that has been granted by the Ohio legislature. And -- and I believe in the In re Murchison case, this Court stated that a state court can delegate their administrative and investigatory duties to a member of the judiciary when they spoke of the one-man grand jury, but this is not a member of the judiciary. This is a layman.
Earl Warren: Mr. Graham, do you -- do you have any cases specifically on the point that you raised in this case, namely that it is unconstitutional to require the attendance and testimony of a witness without his lawyer?
James F. Graham: Your Honor, I have not. I have -- I have been unable to find a case that I can cite to this Honorable Court that is specifically in point. I am relying on the -- the change in our system of jurist -- jurisprudence of our administrative law, the days when the -- the investigation and investigators, the notoriety which they have -- have assumed in some investigations were in the notoriety and in of itself as the tier from the ultimate goal that that is sufficient to show that there is a change in our time sufficient to guarantee a man or give a man the right of counsel before an investigator who had these powers.
Earl Warren: May I ask why -- why you didn't bring the question of commitment here?
James F. Graham: Your Honor, I was not as well educated at the time at the -- at -- at the hearing that as I was later on. I feel that -- that possibly, we -- we might have done it that way, but it begins at the outset, my feeling was very strongly that we should be entitled to counsel in that instance.
Harold Burton: Well then, it results on the question of committal that the Chief Justice just raised. That has not been considered by any Ohio Court whatever to the right of the Marshal to commit.
James F. Graham: We have not -- we have not briefed it nor has been submitted to the Supreme Court of Ohio which I take it that is -- your question has referred to.
Harold Burton: Yes, that's right.
James F. Graham: -- and we raised it in the Supreme Court --
Harold Burton: That's right.
James F. Graham: -- for this Court then to consider.
Harold Burton: And therefore, it's not here?
James F. Graham: We -- Your Honor, it is here only indirectly. We did raise the question. I'm saying that all of these powers combined -- in other words, the legislature in Ohio can correct the In re Murchison or Oliver situation as did the Michigan legislature primarily making a -- a gap for saying, "All right, now, when we find your man in contempt and you find this witness in contempt bringing before a member of the judiciary, bringing a man where he can have the -- the -- a counsel.” Now, if he is brought in and had a hearing on contempt, I think that complies with the doctrine laid by -- down by this Court.
Harold Burton: But the statute has not so provided.
James F. Graham: The statute does not so provide. And in addition --
Harold Burton: But there's no objection raised to this -- what statute did provide them?
James F. Graham: That is right, Your Honor. But my -- my theory is this that even if this were corrected, I would -- I -- I submit that even if these were corrected, these two statutes were corrected so that they did provide the necessities and the safeguards asked by this Court in the Murchison and Oliver case. I still feel that when you give a layman the power of investigation and the other powers granted by the Chapter 37 of the legislature of Ohio to exclude counsel and declare it private as no other end. To me it can have no purpose, and to me it is not right and just. And under the broad concept or a concept that has stayed the same, but under the changing of the times, due process of law which it -- my understanding is a concept of fairness and righteousness. And a changing of time at this Court should declare the -- the hearings of that nature to be without the exclusion of counsel.
Felix Frankfurter: What -- what my mind has understood you suggested is that your essential claim maybe sustained by your own Supreme Court.
James F. Graham: Well, in other words, it might be vain. I -- I agree with Your Honor.
Felix Frankfurter: (Voice Overlap)
James F. Graham: In other words, if we would go --
Felix Frankfurter: And not sustain the thing that worries this Court and does it (Inaudible) to the decision in legislative power. All we know is, we hope that they would.
James F. Graham: Had I have raised -- had I -- had we have raised those particular sections and ask them to -- to declare those unconstitutional. But even then, we would not have been in the position because we did not let our plans or the petitioners-appellants be sworn and be found out to be in contempt on that basis.
Felix Frankfurter: I understand that you are raising your -- an antecedent problem.
James F. Graham: I'm -- we're ready -- and the only problem that we could raise and that being the right of counsel to appear.
Felix Frankfurter: That's right. But despite of the Oliver and Murchison case, offered that the purchase question has not been denied to you by Ohio.
James F. Graham: It is now because it has not been raised, Your Honor. The -- this are the -- excuse me. The sole of question of course I think we have already gotten to of course is whether or not the -- an investigator for the legislature of Ohio can invest in an investigator such powers to exclude counsel when he has his other powers as are set out in our Appendix A.
William J. Brennan, Jr.: Mr. Graham, will you enlighten me? Do I understand then that there's no question here either as to the constitutionality generally of the Ohio statute or all the procedure there under but the single question, whether that some constitutional right is denied and not being permitted to have at the hearing before the Fire Marshal Council?
James F. Graham: The specific action that is in question is this Section 3737.13 which we did raise the constitutionality in every court and that is this action that says that the Fire Marshal may determine a hearing to be private and to exclude all persons other than those required to be present. And in that exclusion, it has been determined by our Supreme Court that that includes counsel.
William J. Brennan, Jr.: Was that an answer to me then that, yes, the only question here is whether or not exclusion of counsel deprived this (Voice Overlap) --
James F. Graham: I feel that action -- action be the only -- only question before this Court, Your Honor.
Hugo L. Black: Is the question here as to whether or not an act constitutional in providing for a private hearing on which a man might be sentenced to contempt and depriving him of a lawyer at such private hearing. Is that what you're saying?
James F. Graham: That is right, Mr. Justice --
Felix Frankfurter: In this instance.
Hugo L. Black: Is that here?
James F. Graham: Well, I feel it is.
Felix Frankfurter: Do you say yes to the question of whether he could be committed for contempt? Is that the essence?
James F. Graham: Well --
Felix Frankfurter: That is included I assume?
Hugo L. Black: Well, what -- what I'm -- what I was asking was, is it your contention that you do have here question of the constitutionality of a statute which authorizes the Fire Marshal to summon a man in and give private testimony and exclude counsel, where under the setup of the statute, he can be sentenced for contempt because that's deterrent that we have to reach the contempt question to decide your case?
James F. Graham: I -- I think this, Your Honor that you can't separate the two. I feel that this power that he has in the hearing that the power that the -- the legislature had -- has given him is a factor in determining whether or not he should be entitled to in an -- in right of counsel. I do not say that in all administrative bodies or agencies that you should have an alter ego in the form of an attorney by your side, I don't feel it's necessary. But when they give to that -- that administrator or that investigator the powers which include the right to summarily contempt but not necessarily, only those -- but the powers of subpoenaing and the powers to -- at random the -- apparently, to determine what is to be transcribed. And then to --
Felix Frankfurter: That -- that the power of contempt means that at the end of the process of inquiry to the constitution, proceeding in contempt, a man may go to jail. Now, is that in the --
James F. Graham: Only by indirectly, Your Honor. Only by saying, "This Fire Marshal has that power." Therefore, if he has powers that we declare or we have shown are unconstitutional, should then a man or a witness be called and subpoenaed before him without the right of counsel. Now, take away --
Felix Frankfurter: Does -- does the power to summon and to -- to swear without dependance of a counsel? Does that carry with it even to -- either inherently or by virtue of the statute that must come into play that he -- they may then decide that he's guilty of pretending to subpoena.
James F. Graham: I'm not -- I'm not sure that I understand you question, Mr. Justice --
Felix Frankfurter: Does -- suppose the statute said, “We hereby authorize that what it amounts to -- to summoning the witness to swearing hearing and that's all.” And it's going to be the only powers that quite amount to that.
James F. Graham: Then, or course your --
Felix Frankfurter: That -- what would you say to that?
James F. Graham: Well, I would say that we'd have no -- certainly no right of counsel there. There would be -- we would not -- it -- it is these other powers that we're saying when he has a right to arrest and that the -- the arrest as the statute is written on -- states I believe at 3737.10, the Revised Code says that it's either he or his assistant is on the opinion that there is sufficient evidence to charge him of the crime of arson or a similar charge.
Felix Frankfurter: That he may bring him in.
James F. Graham: The -- he will going to arrest him.
Felix Frankfurter: Bring him in for -- for a hearing and all this.
James F. Graham: Yes. Well --
Felix Frankfurter: Hearing --
James F. Graham: Well --
Felix Frankfurter: -- and no more.
James F. Graham: I don't -- I don't know what you mean by bringing him in. If he's -- if he's in there --
Felix Frankfurter: What I'm asking -- yes.
James F. Graham: -- just arrest him and -- and commit him.
Felix Frankfurter: So that he could give -- well, commit him. You got to be careful about that. Is there a power of commitment, commitment here for a failure to testify?
James F. Graham: Yes, there is. There is that -- the power is under 3737.99 with Revised Code which says that if he violates .12, he can be summarily committed and uses the language "summarily committed." But the Section that I am referring to, what subsection .10 says that he shall arrest him.
Speaker: Section .99 is not involved in your appeal here. You're not attacking that statute.
James F. Graham: 3737.13 which incorporates --
Speaker: No -- (Voice Overlap) no, I'm talking about .99 --
James F. Graham: You're -- you're right. We have not specifically said --
Speaker: -- not here.
James F. Graham: We are attacking the power to summarily commit, Your Honor.
Speaker: And if your Ohio Supreme Court had been faced with .99 and it said, "Well, under Murchison, of course there can't be a secret hearing." Would you have any case left here?
James F. Graham: No, Your Honor, we wouldn't. If we could have gotten that before the Court then our fact situation is actually before this Court.
Speaker: Then how can we deal with that if your court hasn't passed on it?
James F. Graham: Well, this -- what I'm asking --
Speaker: And why should assume that they're going to violently construe that statute to find (Voice Overlap) --
James F. Graham: Your Honor, if -- if the case were remanded in the light of the Murchison and Oliver cases, another fact pattern might well arise in this particular case. I'm not sure that it would, but supposing that we would go back and the petitioners-appellants in this particular case were to present themselves to the Fire Marshal and to be sworn and then refuse to testify, I don't feel that the Fire Marshal would be able to do a thing in the light of the In re Murchison and Oliver cases. He has no other power to commit other than to summarily -- summarily. However, we would have to go through that fact pattern to get to that particular question and then we would not have an issue, the right of counsel before an -- an investigator who had the power to, in addition to these powers of summary commitment. He has the power to -- to subpoenaing the witness. He has the power to arrest him if it is his opinion and charge with the crime of felony, a felon. And I feel that that is significant in and of itself. They only have an investigator or the administrative agency that has that power. I know of no -- I know of no authority or no legislature that has granted that much authority to a layman.
Hugo L. Black: What happened to these men?
James F. Graham: Well, these -- these men are still -- there's nothing that has happened to them.Their situation has not changed, Your Honor.
Hugo L. Black: Well, what -- they were summoned.
James F. Graham: Oh --
Hugo L. Black: The record shows they were summoned.
James F. Graham: That's right, Your Honor.
Hugo L. Black: They went before the Fire Marshal.
James F. Graham: That's right. They refused to testify.
Hugo L. Black: Then what did he do?
James F. Graham: Well, here's -- here's exactly what did occur. When we had the -- when we had a -- immediately, the first instance when I had made the phone call with Mr. Peterson and we were scheduled to appear in front of Columbus by a subpoena duces tecum, my father and I contacted the Chief Justice Weygandt of the Supreme Court of Ohio and we're -- we're in a complete agreement with the Attorney General of Ohio that we would submit the question immediately to the Supreme Court of Ohio. And we prepared our -- a writ of habeas corpus --
Hugo L. Black: You mean the man -- the -- the Fire Marshal didn't do it, you say?
James F. Graham: Well, no, Your Honor. If the -- what did occur, we were to present it immediately before the Supreme Court and they had advised us by rule of court that would -- we would have to wait a week before they would hear the writ. And while we were hearing the -- we then proceeded down to the hearing room of the Fire Marshal at that instance. After the witnesses -- appellants refused to be sworn, he took them down to be incarcerated and it would --
Hugo L. Black: He -- he took them down. Does the record show that?
James F. Graham: Well, the -- no, the record does not show rather than that was the date that they -- the -- that is the same date that they -- that we should file.
Hugo L. Black: I see -- I see the State's brief and justly that they have presented here. The appellees' brief says, “However, the appellants were not incarcerated, but were released on bond rather than incarceration." So that the very question here -- presented herein could be litigated. What -- what were the -- what did they make a bond to do?
James F. Graham: Well, the -- the bond that was to stay their incarceration, it was a nominal bond of $100 a person.
Hugo L. Black: Stay the incarceration ordered by the Fire Marshal?
James F. Graham: That is right. And they were taken and handed over to the Sheriff. The --
Hugo L. Black: Are these facts before the Supreme Court?
James F. Graham: Yes. Yes, they were, Your Honor.
Hugo L. Black: And you challenge the -- did you have a habeas corpus for the Supreme Court?
James F. Graham: Well, what I did, Your Honor was this. We had the -- the papers prepared for the Supreme Court of Ohio. And then, at the -- at the hearing, the Fire Marshal completely changed it. It completely surprised us and the Attorney General and actually went out to commit this man and put them in prison. We then had to change the petition which we had mimeographed, the Supreme Court of Ohio and submit it to Judge Clifford in the common pleas court. I say that as a fact matter to show you that the personalities that we're involved and became involved in this case between the Fire Marshal and between our clients, the appellants herein.
Hugo L. Black: What do you understand the Supreme Court has decided?
James F. Graham: Well, the Supreme Court in its opinion, you mean how the Supreme Court merely mentioned that there has been no violation of the -- of the Fourteenth Amendment of the Constitution of the United States. We argued it on two bases in the Supreme Court of Ohio. Number one, that they were private, did not mean the exclusion of counsel. And number two, that it was a violation of the Fourteenth Amendment of the Constitution of the United States. And if you'll see their opinion, they just merely stated that it was not a violation of the Constitution or Due Process Clause of the Fourteenth Amendment of the -- of the United States.
Hugo L. Black: You didn't mention the Murchison cases or --
James F. Graham: The cases of Murchison and In re Oliver were not mentioned to that court. The -- the only -- the only issue that of course will guarantee the --
Hugo L. Black: Did the Court approve the holding of investigation by the Fire Marshal in private without representation of counsel?
James F. Graham: Yes. That question was brought before that --
Hugo L. Black: That was presented, as you said?
James F. Graham: That's right. And then they decided that the word private did mean that they could exclude counsel.
Harold Burton: Private meant to it.
James F. Graham: The private was interpreted to mean that they could -- he could and exclude counsel. He -- the -- the language says private to exclude persons other than those required to be present. And they said they found no constitutional guarantee that require a -- an attorney to be present and therefore, there was no violation of the Fourteenth Amendment or due process.
Felix Frankfurter: Suppose -- suppose the Ohio Constitution which certainly in 1912, you reduce the number of novel teachers, that's in the amendment. Suppose the Ohio Constitution, 1912 had a provision that -- retaining the grand -- grand jury as the agency for ascertaining as the crime-charging body for the State, accepting only as to alleged commission of arson and had vested that inquiring power in a -- in a single inquiring body to do it, fires. Would that be unconstitutional?
James F. Graham: Only if they gave him, I believe, the same powers that they have given here, and he was not a member of the judiciary.
Felix Frankfurter: Well, suppose they meant the Fire Marshal, the grand jury on -- of the crime-charging body as an ordinary late grand jury is about all. Would that be unconstitutional?
James F. Graham: I don't -- I don't believe it would, Your Honor. I -- I don't --
Felix Frankfurter: Why is it?
James F. Graham: I hesitate to -- to pass on that. I'm not sure that this Court has passed on them.
Felix Frankfurter: The Court (Voice Overlap) that this is a sort of a preliminary investigation so that on the basis of what he finds represents the -- the prosecuting attorney may -- then they have it before them.
James F. Graham: Well, it may be preliminary and one step removed from the actual incrimination but when you get the layman of the -- the powers that he has given -- given here, I think --
Felix Frankfurter: The grand jury, they embody in its belief the very purposes that it should be.
James F. Graham: Well, I think this. I think if you have --
Felix Frankfurter: Are you sure that's -- whatever they are, 21 or (Inaudible)
James F. Graham: 15, but -- but there is safety in numbers that there will not be the personalities involved in this case.
Felix Frankfurter: Well, but that's the violation of the Due Process Clause that the State chose to have a single person to be the inquiring body, the requiring instrument of the State for determining whether a charge for a subsequent, duly protected safeguard as public trials as you have. Would that be unconstitutional?
James F. Graham: In my -- my humble opinion, I believe it would come off and close to it, Your Honor. If they had no -- it was not a judiciary. He had no safeguards and it was a completely private. There was no transcript of the record in the sense that we mean transcribing.
Felix Frankfurter: Is that -- is that before your grand jury?
James F. Graham: The grand jury is completely secret when they deliberate.
Felix Frankfurter: Did they -- that was brought up to a grand jury proceeding which practically never itself have the other evidence, the grand jury minutes.
Hugo L. Black: Your grand jury has a number of men from all parts of the county, doesn't it?
James F. Graham: That's right, Your Honor.
Hugo L. Black: And it has the prosecuting attorney there with it, doesn't it?
James F. Graham: That's right. But when they deliberate, I -- I don't feel that anyone is lying.
Hugo L. Black: Yes, when they deliberate. But when the witness is --
James F. Graham: The witness is there -- the grand -- the -- the prosecutor is there and had --
Felix Frankfurter: You mean they are constitutionally and necessarily had been excluded by grand jury, if -- if you want to hear this witness alone.
Hugo L. Black: Well, suppose now it's only the grand jury, the 15 men and that's a -- a traditionally approved method, getting a witness there. Witness of grand jury supposed to be of his neighbors. Have you -- you know of any case that's -- in which this Court has ever sustained or any court in the country, outside of the Michigan Court has ever sustained the right of a State to turn over the investigating process of crime to one man to be held secretly with no right on the part of the defense or the witness to be heard it over? Do you know of any case which has ever sustained that except the Michigan laws that we struck down?
James F. Graham: I do not, Your Honor --
Felix Frankfurter: It describes on the existence of the grand jury in Michigan.
James F. Graham: No, but you did make reference, Your Honor to the fact that it was a delegation authority to a member of the judiciary, witness associates I believe. And also that there was -- to be transcribed.
Felix Frankfurter: I'm merely suggesting that we have not struck down the one-man grand jury officially.
James F. Graham: That was right, Your Honor.
Hugo L. Black: We struck down the statutes, didn't we, as I used them?
James F. Graham: I believe --
Hugo L. Black: And there was -- there's a lot about it. The fact it was secret too, wasn't it?
James F. Graham: That is right, Your Honor.
Hugo L. Black: And the man was in there and had no way to take care of himself for this one -- one person.
James F. Graham: That is -- that is right.
Hugo L. Black: And here, you have as you say, a Fire Marshal. What's his duty?
James F. Graham: At least the duties are to investigate a fire and to see that -- to investigate for the purpose -- specific purpose of determining if there was arson or a similar crime and having the man committed to it.
Hugo L. Black: Investigate crime and he calls in that your law gives him the right to call in the man he suspects and interrogate him secretly with nobody there and denies him the right to have a lawyer or any friend or anybody with him.
James F. Graham: That is right.
Hugo L. Black: That's your case here, isn't it?
James F. Graham: That is right, Your Honor.
Hugo L. Black: Do you concede that that's constitutional and that -- to do it that way? I understood you to say a while ago that you thought maybe they could do that.
James F. Graham: No, I didn't. I think I said this, if the grand jury -- if -- if it was in the event of a grand jury and they did not have all of these powers of commitment and there were a number of them, and then I believe that -- that Mr. Justice then brought it down from -- from the plural to the singular sense and I don't believe I answer that. Maybe I was a mistaken but even if I did it.
Felix Frankfurter: Well, it's not you but you're using it. You could say that -- speaking of contending to the opposite of what you're contending. I understand your position. You had to correct me that we have not struck down the one-man grand jury in Michigan as such.
James F. Graham: That is right.
Felix Frankfurter: We struck down a commitment under it.
James F. Graham: That is right, Your Honor.
Felix Frankfurter: A very different story.
James F. Graham: That's right.
Harold Burton: Mr. Counsel, what -- what process brings the man before the Fire Marshal?
James F. Graham: The subpoena that the -- that -- as the power that is granted to him and I believe it is 3737.10, Appendix A. Well, that is the -- it is not 10 Your Honor, it is 11, .11. The Fire Marshal or an assistant Fire Marshal may summon.
William O. Douglas: Where -- where -- is that printed in your brief?
James F. Graham: Page 18 of the Appendix A. "The Fire Marshal or an assistant Fire Marshal may summon and compel the attendance of witnesses to testify in relation to any matter which is a proper subject of inquiry and investigation and may require the production of any book, paper or document."
William O. Douglas: There's no -- no -- you'd have no objection to that.
James F. Graham: No, I -- I think that you're going to have to have an administrative body that -- for this purpose, has the power of subpoena. I say when you correlate that power and supplement it with this additional powers as outlined in Appendix A, then I think is giving that power to a layman and to an individual and declaring it secret. Giving him that power, then it becomes unconstitutional to -- to deny the right of counsel.
William O. Douglas: That's the secrecy that --
James F. Graham: It is the secrecy supplemented by these other powers. The -- I -- I would like to reserve some of my time and I would like to close in saying that the only authority that I have on something of this nature is of course the -- the wording that I have selected from the opinion of Wolf versus Colorado of this Court wherein it was stated that the concept of due process was a living principle. And I --I cannot add to the wording of -- of this Court or expound on it any further. I am sure I'll improve on it, but I submit and urge that in a society or administrative society that we are now having or that the constant investigations that I've developed that I feel that -- that this matter is of sufficient of importance that this Honorable Court should decide what rights a person, a citizen of the United States has when appearing before an investigator that is giving these -- given these powers. I would like to reserve some of my time.
Earl Warren: Mr. Allison.
Earl W. Allison, Jr.: May it please the Court. I think I should first attempt to clarify certain matters which arose during the questioning of my opposing counsel by members of the Court.On the question of what happened in this case, we had first what gave at least some appearance of being an incendiary fire. Under the statutes of the State of Ohio, the State Fire Marshal is granted the power and given the duty to investigate the cause and origin of the fire to see whether or not it is of an incendiary nature. He is given the power to summon witnesses and to hold this hearing. And at that point, if he finds there is evidence of a crime, primarily the crime of arson, he is then charged with the duty of turning over that evidence to the prosecuting attorney for presentment at that stage to the grand jury and possible indictment. I think I should also clarify one thing here and that is that the prosecuting attorney of Franklin County appears as counsel in this case not because any evidence of a crime was turned over to us, but in the nature of our civil function as legal adviser too and counsel for the various county officials. And in this instance, the writ of habeas corpus was directed against the Sheriff of Franklin County. There has not been a charge of arson placed in this case. The petitioners here were never defendants. In fact, when the summons was issued -- and these witnesses, and they are only witnesses, that distinction must be kept in mind. When these witnesses appeared and refused to be sworn or testify without the presence of their counsel, this habeas corpus was filed. And this habeas corpus became a vehicle to test the right of the State Fire Marshal to exclude counsel from this hearing.
Harold Burton: Is the writ of habeas corpus available to test the right where the man to whom it relates is not in custody of anybody but is out on bail?
Earl W. Allison, Jr.: That is a question, Your Honor, which I believe has not been presented in this case. I was about to state that in this case, the men were never actually even delivered to the physical custody of the Sheriff of Franklin County. They were accompanied when the Fire Marshal conducted them to the county building for a commitment through the county jail. They were accompanied by their counsel and their counsel secured the common please judge, one of the judges, to sign an entry affixing bail in this case in the amount of $100. And at the time these witnesses were conveyed to the office of the Sheriff to be turned over or turned into his custody, the entry -- the court entry fixing bail was presented to the Sheriff simultaneously and the men were released on bond. I -- in direct answer to Your Honors question, the fact that these men have been free at all times since the date of this hearing and that this action was brought as a writ of habeas corpus. If the man had been committed, then the writ of habeas corpus would of course be a proper vehicle. On the other hand, the bond was fixed here pursuant to the writ and that was the question that has always been the question in some judges' minds as to the effect of the fixing of bond upon the further proceedings on a writ of habeas corpus.
Hugo L. Black: Did the Court know they were out on bond?
Earl W. Allison, Jr.: Yes, Your Honor.
Hugo L. Black: Did the Supreme Court know it when it decided to question who did?
Earl W. Allison, Jr.: Yes, Your Honor.
Hugo L. Black: I suppose we have to assume then that that's a proper way to raise it. The Supreme Court decides the case (Inaudible), do we not? We couldn't -- we couldn't go back on what they've done (Voice Overlap) --
Felix Frankfurter: That's a state question?
Hugo L. Black: It's a state question.
Earl W. Allison, Jr.: I believe that's right, Your Honor. I --I would like to, if I may, point out to the Court that the Court here postponed any further question or any further argument on the question of the jurisdiction of this Court to hear this matter until the hearing on the merits, pursuant to the Court's letter. In the first place, I think it has been adequately shown, both by the briefs and by the statements of counsel, that if there is any question before this Court that is properly before this Court, it is a very limited one. I would like to merely point out that there is no question here whatsoever of either the Fifth Amendment or the Sixth Amendment. I believe that in the lower courts, there was some extraneous matters came in to the point that there was -- believed that the privilege against self incrimination might come in here. Counsel in their brief, appellant's counsel, has pointed out that the Fifth and Sixth Amendment only apply to the federal procedure but it's even more than that. The State Fire Marshal in this case has never contended that he could force the witnesses before him to answer an incriminating question. Question of the Sixth Amendment on the right of counsel, there is no trial here. There is no accused. These men have not been accused of anything. And it must be remembered when dealing with the question of the rights of witnesses before these administrative agents that some of these witnesses may well be police officers, people like that. There's very good reason for the secrecy of this investigation hearing for the sole reason that in the case of a police officer who is coming in, who may have helped to investigate here, he may be in the possession of the facts which if they were disclosed would be very damaging. So that the sole question presented to this Court is as to whether or not a witness summoned before this administrative official has a right in this investigation to be represented by counsel.
Felix Frankfurter: Did you say that the outset -- did I hear correctly at the outset of your argument, Mr. Allison, that the record does not show that this is a witness under any charge of crime or this is a witness against whom -- I don't think they call it suspension, and was believed to be the -- the committed crime? Did I hear you say something like that?
Earl W. Allison, Jr.: Mr. Justice, may I answer your question this way? At the time of this hearing and today, no crime has been determined to have been committed here. No charges had been placed against these witnesses. I do not want to take upon myself the prerogative of the State Fire Marshal and state to this Court whether or not the State Fire Marshal might have any suspicion in his mind as to any part these witnesses might have played. But no, it has not even been determined here that a crime has been committed. That --
Felix Frankfurter: Is the record --
Earl W. Allison, Jr.: -- is the purpose of this investigation and the record so shows.
Felix Frankfurter: Is the record clear that this was not a hearing with a view of ascertaining who was guilty of -- of acknowledged crime?
Earl W. Allison, Jr.: The -- the record --
Felix Frankfurter: What does the record show on this question? There's no -- there's no crime that's been committed here, is there?
Earl W. Allison, Jr.: The record only shows, Mr. Justice, certain facts that -- or certain allegations rather in the petition for the writ itself and in other statements of counsel that they were under suspicion.
Hugo L. Black: Is that denied? Was that denied by the State?
Earl W. Allison, Jr.: No, sir. It was not denied. I -- as I say, I cannot speak for the Fire Marshal and state what suspicions he might have in his mind as to the --
Felix Frankfurter: Well, was there any -- was there anything --
Earl W. Allison, Jr.: -- part these witnesses may have played.
Felix Frankfurter: Is there any answer to this that has developed of the petition or whatever the pleading was?
Earl W. Allison, Jr.: To the petition in the common pleas court?
Felix Frankfurter: Yes.
Earl W. Allison, Jr.: No, Your Honor. An answer was -- a written answer or a formal answer was not filed.
Felix Frankfurter: Well -- well, was there -- speaking answer?
Earl W. Allison, Jr.: Let me -- let me perhaps describe the circumstances under which that writ was filed. That might clarify it for you. The Fire Marshal was -- entered the courthouse with these two men for commitment. Mr. Graham at that time, having had a written petition for a habeas corpus prepared to file in the Supreme Court on the sole question which is now before this Court, presented that same petition modified to 50 common pleas court rather than the Supreme Court to Judge Clifford of our court of common pleas. Judge Clifford set bond and, if my recollection serves me right, set an oral hearing on the matter. Immediately set the oral hearing for a few days in the future. The oral hearing, as I recall it, was a very light thing. There was -- there were no -- there were no written answers filed. The petition was not demurred to or anything along those lines. At that time then, appeal was taken to the Court of Appeals and then the Supreme Court, both of which courts unanimously upheld Judge Clifford's decision in the lower court on the question.
Hugo L. Black: We have to go on the basis, do we not, that the Fire Marshal had said there was a criminal offense committed? And he was not sure that he stated that he would consider the -- the claim for fire loss filed by these people. That's in the petition.
Earl W. Allison, Jr.: Your Honor, the Fire Marshal, the purpose of this investigation was to determine whether or not the crime had been committed.
Hugo L. Black: But where is -- where is the statement to that effect? The petition says differently.
Earl W. Allison, Jr.: The statute sets forth the purpose on this investigation.
Hugo L. Black: I want to ask the petition -- this petition says that the Fire Marshal has said there's -- there's offense committed and that he wants them to come and he's going to make them testify. And the part -- the part of the thing involved is the amount of -- that -- that they claim for the fire loss.
Earl W. Allison, Jr.: Well, the petition, Mr. Justice -- Mr. Justice, states that petitioners say that said officer intends to examine them under oath pertaining to what an alleged criminal offense and --
Hugo L. Black: They set out that they are innocent.
Earl W. Allison, Jr.: -- like matters. There was no opportunity to file a written answer to this petition prior to the oral hearing and that after the oral hearing. Of course, the question was -- by that time, on its way to the higher courts.
Hugo L. Black: They alleged that they were willing to testify anywhere if they were given counsel to advice them, did they? I believe that's --
Earl W. Allison, Jr.: I believe that's -- I believe there's an affidavit or something in the record to that effect.
Earl Warren: Do you say the State had no right to -- no opportunity to answer this?
Earl W. Allison, Jr.: To go back two and a half years, Mr. Chief Justice, I have -- I just cannot recall the exact length of time between the time this written petition was filed and the day it was set for an oral hearing. It was answered orally as I recall it in court a few days later. I -- I cannot say just how long. At any rate, it was answered orally and not by written answer or a return.
Earl Warren: Well, does -- does --
Earl W. Allison, Jr.: I believe if -- if my memory serves me correct, a -- a written return was filed on behalf of the Sheriff of Franklin County stating that he did hold the petitioners pursuant to a commitment by the Fire Marshal under Section 3737.99 and that was the sole extent of anything filed.
Earl Warren: That's the usual --
Earl W. Allison, Jr.: The usual return as to the --
Earl Warren: It's the usual return.
Earl W. Allison, Jr.: -- the fact that he was -- did have technical custody often, although they were out on bail.
Hugo L. Black: The record showed according to the opinion that fire had occurred at the Dresden Mills which is owned and controlled by these people, and that's what the Fire Marshal was investigating.
Earl W. Allison, Jr.: That is what he was investigating, Your Honor. The circumstances -- the statute provides that the State Fire Marshal shall investigate the circumstances and the origin of the fire to determine whether or not it is of an incendiary nature.
William J. Brennan, Jr.: Mr. Allison, did I understand you to say and suggest earlier that something should be postponed here pending a determination on the merits?
Earl W. Allison, Jr.: The letter, Mr. Justice, which we received from the Supreme Court, from this Court stated -- the statement of jurisdiction in this case having been submitted and considered by the Court -- further consideration of the question of jurisdiction is postponed to the hearing of the case on the merits. Parties are requested to discuss in their briefs and oral arguments this Court's jurisdiction to consider any question raised by the possible applicability of the Murchison and Oliver cases.
Felix Frankfurter: That was the order of the Court.
Earl W. Allison, Jr.: Yes, that is the order of this Court.
Felix Frankfurter: That is before this Court.
Earl W. Allison, Jr.: Yes.
Harold Burton: That's everything that is postponed until now.
Earl W. Allison, Jr.: The -- and I would like at this point to take up the applicability of the Oliver and Murchison cases to the question here. I think that the Court is by this time fully aware that the -- those two cases are not similar in their facts to the case that we have here. In fact, I think this Court in the majority opinion itself answered the question of the applicability of the -- those of the Oliver case to the question here where the Court said, “Here,” meaning in the Oliver case, “we are concerned not with petitioner's rights as a witness in a grand jury session but with his rights as a defendant in a contempt proceeding.” The question here is the question of the rights of the witness before this investigative hearing and not as a defendant because there's -- as appropriately pointed out by opposing counsel. The -- the question of the commitment here has never been raised, either in the -- that is the validity of the commitment.
Hugo L. Black: Unless needed now of a defendant in a contempt proceeding? Wasn't he taken down and incarcerated in jail as -- because he is said to be guilty of contempt.
Earl W. Allison, Jr.: He was a -- he was committed for contempt that in the trial, this whole thing arose. But the -- the question before this Court, since the sole question which has been put in issue is the right of the Fire Marshal to hold his investigation in secret, is that the question of the rights of the witness and not the rights of the defendant in a contempt proceeding.
Hugo L. Black: Well, I suppose he's claiming that he can't be put in jail for contempt by this man after bringing him up there and decline -- and getting him for contempt because he declined to testify in private without the benefit of counsel. Now, and supposedly, he is the defendant in a contempt case. I don't know what the statutes suggest to it.