Earl Warren: Number 213, United States of America versus Ettore Zucca, Mr. Judd.
Orrin G. Judd: Mr. Chief Justice and members of the Court. I want to address myself to four phases of the case and presenting it to you this morning. First, the language of the statute, second, its legislative history, third, its judicial and administrative construction, and fourth, the fact that it is a reasonable protection of naturalized citizens. I believe all these considerations will support the construction adopted by the courts below with an affidavit showing good cause is a necessary part of a complaint for denaturalization of a naturalized citizen. I just want to point out in the beginning, this -- what the Court well knows that this is a serious matter for a defendant jeopardizing his hard won citizenship, the treasure which is the most precious thing that he possessed. The language of the Act of 1906 recognizes this in setting forth the procedure for denaturalization. We consider the affidavit to be one of three procedural requirements, all set forth in the same section and two of them in the same sense. I have quoted on page 4 of our brief the 1906 statute because the parties, I think both agree that no change in language from the 1906 statute has been intended to make any change in construction. The 1906 statute provides, "That it shall be the duty of the United States Attorneys for the respective Districts upon affidavit showing good cause therefore. To institute proceedings in any court having jurisdiction of naturalized aliens in the judicial district in which the naturalized citizen may reside at the time of bringing suit." The second sentence of that same paragraph provides, "That any such proceedings, the party holding the Certificate of Citizenship alleged to have been fraudulently or illegally procured shall have 60 days personal notice in which to make an answer to the petition of the United States. In other words, there are three requirements in that statute that the proceeding be upon affidavit that it be brought in the district of the defendant's residence and that it be brought on 60 days notice to the defendant instead of the 20 days which are usually given to answer a complaint. The Government says that the first of those three requirements, the requirement of an affidavit is not a condition on the bringing of the action because the United States Attorney has authority to bring actions from his general powers. That meets with several difficulties it seems to me in the first place. The Government is quite vague as to where that general power comes from. There is no other statute referred to which specifically gives the United States Attorney power to bring actions. There is a statute which confers the duty on the United States Attorney to prosecute all civil actions in which the United States is concern. That statute has been on the books since before 1906 and the duty of the District Attorney to bring an action as such stands from that statute. The provisions, the procedure for the actions stems from the Section 340 (a). If as the Government argues, there are two types of action for the District Attorney, one, where he's compelled by an outsider affidavit to bring the action and another when he brings it under a general power without an affidavit, then it's -- requires a strange construction of the statute to say that the other procedural requirements apply to an action brought under the general power. If the U.S. Attorney under some general power can bring an action without an affidavit, where is the statute that says, "Such an action must be brought in the district of the defendant's residence?"
Felix Frankfurter: I suppose Mr. Judd that the correction that I should suppose if Congress in passing the statute for denaturalization says nothing at all about the enforcement authority that the Attorney General could entrust any U.S. Attorney to make appropriate action, isn't that so?
Orrin G. Judd: I suppose that's so. But here the statute directs that it be the United States Attorney.
Felix Frankfurter: Yes. I understand.
Orrin G. Judd: And the --
Felix Frankfurter: What I'm saying is, if you didn't have, that would have a general implication in the power of the Attorney General to enforce that Act of Congress to be the appropriate law.
Orrin G. Judd: Yes, but if the -- if the enforcement is on the general power and not under this statute, my point is, Mr. Justice Frankfurter, that then, it is not clear that the protective requirements of venue and notice would be imported into that general action.
Felix Frankfurter: You're saying is, that Congress does seem fit to make one comprehensive of the exclusive statute?
Orrin G. Judd: That's right, Your Honor. That's what --
Felix Frankfurter: They have indicated that the -- this general thing that's relied on -- the general power to enforce the laws wouldn't carry today?
Orrin G. Judd: That's right. This was supposedly the one procedure and that's what we believe was held in the Bindczyck case that I'll come to in a few minutes.
Tom C. Clark: Why do you think the affidavit has to be applied by the U.S. Attorney in the Court?
Orrin G. Judd: I think the U.S. Attorney Mr. Justice Clark must file the affidavit with the Court.
Tom C. Clark: What matters -- the affidavit on this case?
Orrin G. Judd: Well, there are two things that matter with this affidavit. In the first place, it is not an affidavit which sets forth the sort of facts that we believe are required in an affidavit showing good cause. In the second place, it is not an affidavit by someone who has knowledge or can state where he gets that knowledge of the facts.
Tom C. Clark: Exactly. The facts may construe that the very point (Inaudible)
Orrin G. Judd: I think there was an inadvertence and they the intended the whole thing to be on information and belief. If you will --
Tom C. Clark: (Inaudible) the affidavit being filed (Inaudible)
Orrin G. Judd: Well not --
Tom C. Clark: It has gone through there.
Orrin G. Judd: One of the things that we've helped -- I think an affidavit helps on is the determination of where to start on taking depositions. We endeavor to take the deposition of Mr. Mantzoros who had sworn that the facts in the complaint are true and on page 8 of the record is his affidavit in response to that motion, in which he recites that he had no personal knowledge of any of the facts, is not a prospective witness, that all the information that he has is from files in the case which were turned over to him and that many of those file are privileged because of their confidential nature.
Tom C. Clark: That (Inaudible) he had it along the file.
Orrin G. Judd: Well, it depends on the -- on the nature of the case. But he would be able from the files in his possession to set forth the sort of facts rather than conclusions which would enable us to know what we were charged with and to answer the complaint without the involved depositions that the Government says are the alternative to this affidavit of good cause.
Tom C. Clark: The U.S. Attorney may (Inaudible)
Orrin G. Judd: That's right. The -- the argument in the Minker case before this Court, certainly the briefs in the Minker case which we read pointed out that as a routine matter the Immigration and Naturalization Service makes a careful investigation before it turns the matter over to the United States Attorney. And we don't know from this complaint whether it came from the Immigration and Naturalization Service or where it came from. If it did, they should be material from which an affidavit can be filed in order to comply with the statute if that's what the statute means.
Felix Frankfurter: Does -- the Government doesn't contest -- the Government doesn't contend if an affidavit would be necessary to satisfy them.
Orrin G. Judd: They -- they did not so contend on the argument as I understand it.
Felix Frankfurter: Or in their briefs?
Orrin G. Judd: The -- the language of the statute when it says, "Upon affidavit showing good cause therefore, is wording which has a natural meaning to lawyers." We say we're going to bring a motion upon affidavit. The affidavit is something which we present to the Court with the motion. The provision for a court being moved to act upon a showing of good cause, it's something that appears in many statutes. It's common lawyer's language. I think the judge was correct in saying that when the statute provides for institution of an action upon such an affidavit, it contemplates that the affidavit be filed.
Tom C. Clark: (Inaudible)
Orrin G. Judd: In this case, Mr. Justice Clark, he gave them -- in his opinion, I think, he said 15 days. In his order, we extended the time to 60 days. The Government decided that they wanted to test the necessity of the affidavit so they didn't utilize the 60 days.
Tom C. Clark: Both as (Inaudible) complaint whether that affidavit (Inaudible)
Orrin G. Judd: I don't believe it would have, Mr. Justice Clark, not in this case. I'm getting a little ahead of myself, but one of the --
Tom C. Clark: (Inaudible)
Orrin G. Judd: One of the problems we have in this case is the generality of the conclusions that I set forth, paragraph 7 on page 3 of the record recites, "That said defendant was a member of the Communist Party of the United States including the Workers' Communist Party and other organizations affiliated with or controlled by the Communist Party of the United States from 1925 to 1947." I don't think I have to tell this Court how many organizations there are which may have been alleged to have been affiliated with or controlled by the Communist Party of the United States over that period of 22 years. I would suppose that an affidavit which did not set forth from the Immigration Department's files, if this is an Immigration Department complaint, the names of those organizations so that we can ascertain where to look in going back through our planet's past history to answer the complaint. I would suppose that such an affidavit did not comply with what Congress intends in setting forth good cause for the complaint. Or a complaint, this isn't adequate under the -- under the new rules.
Stanley Reed: Although you could particularize or take care of that one.
Orrin G. Judd: The -- we had a motion to particularized, Mr. Justice Reed. We brought an omnibus motion for dismissal for vagueness, a dismissal for lack of an affidavit and for particulars. The judge did not deny our motion for particulars. He held that in advance because if the motion -- if the complaint was dismissed, there was no need to decide it and if the Government had filed the affidavit it might have supplied the particulars and he might not had decided that motion.
Stanley Reed: As I understood your answer to Mr. Justice Clark it was that the affidavit might be made by any one that was familiar with the facts.
Orrin G. Judd: That's right.
Stanley Reed: That would need to be filed with the -- of what's not -- not -- but either of facts from the examinations such as the Immigration Service as to the individual who had seen in, for instance, in the Communist Party.
Orrin G. Judd: I don't know that I'd go as far as that, Mr. Justice Reed. We haven't tried the brief at this stage, what is a satisfactory affidavit. We think that there are some things which might be showing that information and belief. But I would think when it comes to a serious charge like membership in the party, they should be someone who has seen this card or who could testify to what overt act show they joined the party.
Tom C. Clark: (Inaudible)
Orrin G. Judd: I think that's -- that's right, Mr. Justice Clark. I think --
Tom C. Clark: (Inaudible)
Orrin G. Judd: Well, as I see it, that's the difference between a pleading and an affidavit. The pleading may set forth conclusions, when Congress asks for an affidavit it asks for something which sets forth facts in some detail. Now, we told that the Court bypassed this question of the meaning of the language. I find that the Court quoted the language of the statute three times on pages 12 and 13 of the record in the course its opinion. And it used some of this reasoning that I have used on page 14 of the opinion where it said, "The fact that Congress inserted these protections referring to venue and the notice, the fact that Congress inserted these requirements for the protection of naturalized citizens in the 1906 Act has been consistent with the Government's position." And there's a -- the reason the Court went to the legislative history which I like to pass to now is because there had been a spate of cases in 1953 and 1954 which held the affidavit is not jurisdictional, is not necessary and need not be filed. Then the Court naturally wanted to be sure and we wanted to give the Court adequate information when we were briefed here that in following the cases from the appellate court of this -- Appeals Court of the District of Columbia and the Third and Fifth Circuit instead of the dictum in the Schwinn case and the later District Court cases, he was right. The legislative history, it seems to me confirms what the Court said. First, we ought to consider what the situation was in 1906 when the statute was passed. It's true that some actions for denaturalization were being brought at that time but the power to bring them was uncertain. There had been cases in the federal court which is cited at page 28 of our brief where --
Earl Warren: Prior -- prior to the 1907.
Orrin G. Judd: Prior to the 1906 statute, Mr. Justice Warren. One case held that a federal court could not offset a decree of naturalization granted in the state court for procedural irregularities in that court since there were questions about the actions of state courts. The United States Attorney naturally preferred to proceed in the federal court. Another case, which was affirmed by the Circuit Court of Appeals for the Second Circuit held that even the federal court dealing with a federal judgment could not offset it for extra defraud where the judgment was regular on its face and the proceeding was an independent proceeding. Somehow in spite of those cases, some courts were -- prevailed upon the grant orders denaturalizing aliens. But the administration recognized the necessity for legislation which would be sure and effective and safeguarding. And we cited further in our brief, Presidential messages from 1874 on which called for the enactment of specific denaturalization legislation.
Felix Frankfurter: Well, if this officially, supposes I understand the matter, denaturalization apart from the statute rested on an extrinsic versus an intrinsic (Inaudible) which is one of the worst bombs of the law.
Orrin G. Judd: No, I could -- one of the worst was all right, Your Honor. There are probably several others. But when you come to the legislative history and we look at the first statute that was -- the first draft of the bill which is set forth on page 29 of our brief. The original bill as proposed by the Commission on Naturalization on which the Attorney General was represented simply said, "The United States shall have the power to institute proceedings with the purpose of setting aside the Certificate of Citizenship.? That was to clarify the doubts which existed before to whether such an action could be properly be brought. The Committee on Immigration and Naturalization in the House revised that and inserted the requirement of an affidavit so that the draft read, "The United States shall upon affidavit made by any credible person have the power to institute proceedings.? Now, it's significant that the word "credible person" there was comparable for the words "credible witness" in the naturalization sections that Congress felt there was need for just as great particularity and protection in revoking naturalization as in naturalizing. The requirement of an affidavit as it was set forth in this first statute, or in this draft submitted by the Committee was clearly a qualification, a condition on the existence of the power. The requirement of an affidavit didn't come in with the language of duty. The reference to duty came in at later stage, referred to on page 32 of our brief, at the same time as the provision concerning venue. It was proposed by Congressman Bonin who was the floor manager of the bill and the Chairman of a subcommittee, having to do with these sections of the bill. At that time the word "power" was changed to "duty", a restriction to the venue in the district of residence living out the district where the citizen was naturalized, was introduced and the word "affidavit" made by any credible person was changed to affidavit showing good cause. It seems to us hardly likely that what was in the preceding draft a tradition on the exercise of the power was changed to a mere option or means of compulsion by this amendment particularly, when one of the purposes of the amendment was to create additional protection for the defendant by providing limitations on the venue. The -- now, there's no statement in Congress to indicate such a change. We've been through the legislative debates. They're analyzed in our brief so that I can fairly say that there is no implicate -- no indication there that a changed from a conditional power to a mere means of compulsion of the District Attorney was explained to Congress as being involved in this amendment which Congressman Bonin proposed. We're told by the Government that the District Attorneys were so lax that it was necessary to impose that duty on them. I'm sorry to disagree as to the interpretation of the congressional record but I'm sure that Your Honors will want to analyze it for yourselves. But I have found no complaints of laxity on the part of United States Attorneys in the record. There are complaints by various Congressmen about the state attorneys. There are suggestions that United States Attorneys maybe overzealous in taking appeals in naturalization cases in order to prevent people from voting. But there is no suggestion that any United States Attorney who has been presented with the case by the Naturalization Service or from any other source had unreasonably refused to proceed. On the contrary, there were instances in the published reports of overzealous action on the part of Unites States Attorneys. The United States Attorney in the Southern District of New York believing that the state courts in 1868 had granted certificates of citizenship without proper formality issued a warning to all citizens who carried 1868 certificates of naturalization to bring them in and not to vote for fear they might be prosecuted and sent to jail. What Congress was concerned with was the protection of naturalized citizens and not the necessity or giving a club over United States Attorneys.
Felix Frankfurter: If the Congress wanted to do several things at the same time and though use -- and having (Inaudible) to emphasize one thing rather than the other. There was in the disclosure which was sufficient to occur of wholesale fraudulent naturalization so that political (Inaudible) could vote those who may does have to be enfranchised. And up to that time, the means of undoing that by order after the proceeding would put (Inaudible) not a very strong reason on this case to be. And therefore, they would pass this statute to provide explicit proceeding or -- for court proceedings to honor the -- or solicitously or fraudulently obtain naturalization and at the same time, it's put into protected speeches so the listing wouldn't be done fruitless.
Orrin G. Judd: Yes.
Felix Frankfurter: And all of this is a (Inaudible)
Orrin G. Judd: That's right Mr. Justice Frankfurter. But I think as you read the congressional hearings you'll find that there was a constant expression of concern not to make naturalization too hard or not to make denaturalization too easy. In fact, some of the changes that were made were to relax the educational requirements. So that the -- it was sufficient if a person could speak English without being able to read it for instance. We're told that there were five bills which constituted the basis for compromise and required the insertion of a provision exercising compulsion over United States Attorney. Actually, if you look at the Government's brief, it appears that there were three bills plus two antecedents of those bills in earlier Congresses. Those bills did a number of things in addition to providing that action might be brought either by the United States Attorney or by a private citizen. The committee reported not on those specific bills but the committee stated that if it considered all the bills which have been introduced in Congress before it introduced its measure. And its measure contained the language that I mentioned at the beginning of this point. The United States shall, upon affidavit made by any credible person have the power to institute proceedings. In other words, the committee after considering these bills rejected the idea and decided that what was necessary was an affidavit of the condition of bringing the action. And there's no request in the debate in between the time when the committee bill was introduced and the time when they -- duty -- the word of duty came in with the venue restriction to indicate that there was a change in purpose.
Stanley Reed: Are there other -- other civil actions that require affidavits?
Orrin G. Judd: Yes, I think we can -- there are numbers of instances in which an affidavit is necessary. An affidavit of good cause is required in connection with a search warrant, an affidavit of good cause is required or an affidavit of merit is required under our rules, under the rules of civil procedure in connection with reopening a judgment. In fact, prior to 1906 when one of the methods of reopening a naturalization decree was a bill of review, affidavits were part of the papers on which that bill of review had to be based.
Tom C. Clark: I think (Inaudible) the District Attorney requires (Inaudible)
Orrin G. Judd: I -- I don't know that I can tell you of that Mr. Justice Clark. There are of course in the rules of the various administrative agencies requirements for showing good cause where an extension of time is granted or where a --
Stanley Reed: Those -- those are all long information, belief, like that.
Orrin G. Judd: Well, if they're on information and belief, it's necessary to state the source of the information and belief. And I don't think simply saying that it's from general files without saying what particular sort of information in those files gives it would be sufficient.
Tom C. Clark: He is named in the file and --
Orrin G. Judd: No, I don't mean the page in the files, I mean, the fact that he had belonged to the -- contributed to the International Labor Defense if that is construed as being a member of an organization affiliated with the Communist Party or explained that he was a Secretary of a Committee which was organized for some subversive purpose. I would think --
Speaker: (Inaudible)
Orrin G. Judd: No, it says he was a communist and these various other things. Now, we believe -- we believe that we can defeat the case on the communist charge. We don't know what the other charges are. Those are the ones that seem to us important to be informed about it.
Tom C. Clark: (Inaudible) They also said that he was a member of the Communist Party for 10 -- 10 years (Inaudible) That would make it -- isn't that the (Inaudible)
Orrin G. Judd: If that were true, it would make -- it would --
Tom C. Clark: (Voice Overlap) that allegation disproved this (Inaudible)
Orrin G. Judd: That allegation is true and I think it --
Tom C. Clark: That's in the complaint.
Orrin G. Judd: That's in the complaint.
Tom C. Clark: And the attorney -- the District attorney said (Inaudible) that the allegation might be true and they have a basis.
Orrin G. Judd: That's right.
Tom C. Clark: (Inaudible)
Orrin G. Judd: Because I think he should show when he's showing a good cause -- that he could show good cause to believe that those affidavit -- that those statements were true. His affidavit of verification was certainly qualified by a subsequent affidavit where we said, I know nothing except what was in some files that were turned over to me, much of which is privileged than confidential. And the complaint could be sustained Mr. Justice Clark, by dropping out completely the proof of it being a communist and asserting that he was a member of some organization affiliated with the Communist Party on the -- because the complaint also alleges that he fraudulently concealed the fact that he didn't belong to any organizations except those which were recited in the questionnaire at the time of his naturalization. The affidavit of good cause it seems to me if the complaint is to go that far should set forth cause for all the allegations on which denaturalization is sought and which we'll have to meet at the trial.
Tom C. Clark: In other words, there's more than one (Inaudible)
Orrin G. Judd: That's right.
Tom C. Clark: And they have --
Orrin G. Judd: We have to answer all the causes.
Tom C. Clark: Judging on the (Inaudible) on good cause -- as a matter of good cause.
Orrin G. Judd: Well, that's a -- that's a matter of draftsmanship I think commonly, the singular isn't -- deemed to include the plural, if there are two causes in the complaint, I would think the two causes should be in the affidavit.
Tom C. Clark: How would say that it was (Inaudible) named to these affiliates on and they simply put the complaints to be sufficient on the (Inaudible)
Orrin G. Judd: Without an affidavit, I would not say so.
Tom C. Clark: Even if the affidavit is here?
Orrin G. Judd: Well, I think it would be -- how much more is this --
Tom C. Clark: (Voice Overlap) --
Orrin G. Judd: How much more detail we might want when we see the affidavit, I don't want to commit myself to at this time. But that's --
Tom C. Clark: (Inaudible)
Orrin G. Judd: Now, I'd like to touch briefly the question of judicial and administrative construction of this statute because that is always persuasive.
Stanley Reed: Before -- I'd like to continue Justice Clark's question just for a moment. The statute says, affidavit of good cause, doesn't it?
Orrin G. Judd: Yes.
Stanley Reed: And is your attack then on this affidavit that it is not sufficient in itself?
Orrin G. Judd: But we have never contemplated that the verification was an affidavit of good cause. And the Government hasn't asserted that it satisfies the statute by verifying the complaint. If that issue were in the case, I would say that the affidavit is not sufficient because it doesn't set forth facts. And it is not as broad as the complaint. And if the affidavit in the --
Stanley Reed: That would be a mere case of amendments.
Orrin G. Judd: Well, will be a case of supplementing the complaints by an affidavit --
Stanley Reed: (Voice Overlap) --
Orrin G. Judd: They could -- they -- we didn't quarrel with the judges' statement that the Government could reinstate the complaint by filing an affidavit of good cause within the time it was -- that the Court allowed.
Felix Frankfurter: Mr. Judd, I don't see why you don't like the short answer but that question is not here. The Government brought one question here, namely, whether an affidavit if inquired, not on this affidavit, this document satisfies the requirement of an affidavit.
Orrin G. Judd: Well, we didn't say it was essential to reach that point because --
Felix Frankfurter: All right, we hope not.
Orrin G. Judd: -- it hadn't been briefed here. Now, with respect to the construction of the statute, we have first the Attorney General's opinion which we've referred to in the argument yesterday which was given by the Attorney General within a year after the enactment of the statute to the department that was charged with the enforcement of the statute. It's contemporaneous, it's official, it's clear. It says in so many words that on page 14 of our brief, "I am therefore of opinion that before any United States Attorney is authorized to institute proceedings for the cancellation of a naturalization certificate, he should be furnished with the proper affidavit on which the proceedings may be based. On which they may be based, it seems to me implies that the affidavit is to be filed as a basis for the proceeding. That's what was held in the first reported case, the Collins case in the appellate court of appeals for the District of Columbia so a demurrer to a complaint which was submitted without an affidavit was valid. The demurrer was overruled, no evidence put in, the citizen denaturalized, in that appeal, the Court of Appeals for the District of Columbia set that demurrer was proper and the complaint should be dismissed. Subsequent decisions were handed down in the Fifth Circuit or in the Third Circuit mostly in cases where there were affidavits which were attacked because insufficient because the causes that was set forth in the affidavit didn't show fraud or illegality. It was held there the affidavit was necessary. There's a similar implication in an Eighth Circuit opinion, the (Inaudible) that we cited in our brief. This Court in the Johannessen case, I believe, may have had this in mind, there -- in upholding the Act -- 1906 Act as applied to certificates issued before the date. Instead of the Act, it merely provides that on good cause shown the question where the one who claims the privilege of citizenship under the certificate of court has procured that through fraud shall be examined and determined. It wasn't the square holding but certainly this language that leans our way, everything was to that effect except the couple of District Court decisions in the Ninth Circuit until the Schwinn case. The Schwinn case, Your Honors, I think has been widely misinterpreted because it's hard to believe how narrow the issue was. In the Schwinn case, we've analyzed the record on appeal in the clerk's office here overnight. In the Schwinn case, there was a statement in the original complaint when it was filed. So this effect, the plaintiff's information and belief stated herein are based upon an affidavit of Robert M. Charles and a trainee for the Immigration of Naturalization Service United States Department of Labor a copy of said affidavit is attached hereto marked Exhibit A. The issue in the Schwinn case was whether the defendant should be denaturalized because the two witnesses who would sworn to his good character over a period of five years had known him for only four-and-a-half years. The case was tried in the District Court mainly on the stipulation of facts which set forth that it was true. They'd known him only four-and-a-half years but that he believes that the dates were different. He didn't' understand that it was only four-and-a-half years and if he known at the time he could have produced other the witnesses whose names he gave to the Court and would have said he's been there five years. The District Court said, "We can't take that story. You didn't have the five-year residence proof would be naturalized. And he found all the allegations of the complaint to be true. On appeal, the parties stipulated not to print the affidavit of good cause but the appellant asserted that there was no evidence to support the finding of the Court of the truth of the allegation and the complaint that there was an affidavit of good cause. I would have thought that that was a pretty narrow issue to take to the Court that when an affidavit is filed with the complaint there is an affidavit and all that the Schwinn case holds and saying that you don't have to put in additional proof of the affidavit, all that it holds is that the facts that are set forth in the affidavit may be proved at the trial by someone else than the affiant.
Felix Frankfurter: But there is a (Inaudible) in the Court of Appeals' opinion about jurisdiction.
Orrin G. Judd: Oh, this language in the Court of Appeals' opinion which we consider dictum --
Felix Frankfurter: Yes.
Orrin G. Judd: -- which says it's not jurisdictional. I think we'd win here even if it's not jurisdictional. There can be jurisdiction over the person but an inadequate complaint and the complaint can be dismissed even if there's jurisdiction.
Felix Frankfurter: One would often like to have as (Inaudible) the word jurisdiction.
Orrin G. Judd: Well, I would -- I think it's a word that's open to some interpretation in this area. So at the time of the 1940 reenactment of the statute, there were three circuits, four Circuit Courts of Appeal where there were either holdings or indications that an affidavit was necessary. One, where there was a dictum but even though it had been filed, it was unnecessary.
Tom C. Clark: When was the Immigration Service came through (Inaudible)
Orrin G. Judd: I am not sure, Mr. Justice Clark.
Felix Frankfurter: I think it was -- it was doing dicta, Attorney General Jackson (Inaudible)
Orrin G. Judd: Then from 1940 to 1952, I find four decisions which either hold or lean our way, and two that the -- are contrary, two to the contrary which followed Schwinn, District Court decisions. The four that are --
Felix Frankfurter: (Inaudible) where are the District Court decisions?
Orrin G. Judd: They are cited --
Felix Frankfurter: And you haven't had (Inaudible)
Orrin G. Judd: That's the Schuchhardt case in the Northern District of Indiana and the Favorito case in the Northern District of Ohio.
Felix Frankfurter: Are they pleading the opinions or just dispositions?
Orrin G. Judd: They're opinions --
Felix Frankfurter: Cited in --
Orrin G. Judd: Reported opinions citing the Schwinn case. As I say, I believe the --
Felix Frankfurter: But, what about the -- did they know about the (Inaudible) of these cases?
Orrin G. Judd: No.
Felix Frankfurter: How about the other (Inaudible)
Orrin G. Judd: One of them speaks of the weight of authority being in favor with Schwinn.
Speaker: They -- they're in the brief?
Orrin G. Judd: They're in the briefs. They -- those two cases are cited at page 23.
Felix Frankfurter: I know how the weigh authority (Inaudible) the weight scale the weight.
Orrin G. Judd: Well, the -- the Government wanted to count heads in Court of Appeals and this weight was their way, if you count all the cases up to the time of the Court of Appeals' argument.
Felix Frankfurter: The Court of Appeals, the District Judges or even the District Court opinion are the same?
Orrin G. Judd: They were counted the same.
Felix Frankfurter: As -- as to each of the unit (Inaudible)
Orrin G. Judd: Well, I don't know how else you can weigh them objectively. Then there was a Hartmann case in the Pennsylvania District Court which is our way, which referred to the affidavit as a material fact of the complaint. That's at page 17 of the brief. Then there's certainly an implication in this Court's decision in the Schneiderman case. The Schneiderman case is the one that Wendell Willkie argued involving an admitted communist where this Court held it was not sufficient proof that the Communist Party was incepting to overthrow the Government by force and violence. The footnote at page 1 of the complaint recited that an affidavit of good cause has been filed and is annexed hereto as required by the statute. The footnote on page 159 of the opinion referred to the complaint -- referred to the affidavit and says undoubtedly, the affidavit was included only to show compliance with the statute. Well, that isn't the holding because there was no issue about the necessity of the complaint but we believe it is a public implication that such an affidavit was regarded as necessary. Then came the Bindczyck case. The Bindczyck case didn't involve the necessity of an affidavit but the Bindczyck case involved our argument that there is no way that a District attorney can proceed except under Section 340 and in compliance with its requirements. In the Bindczyck case, a citizen had been denaturalized on a motion made by the United States Attorney in a state court within the term seven days after he was naturalized on the ground of fraud. He brought a declaratory judgment proceeding in the United States District Courts to prevent us to adjudge the validity of his citizenship and to prevent deportation. And this Court held that the procedure under that statute in the state court was improper saying and I've quoted it on page 19 of our brief and considered it most relevant to the present case. We cannot escape the conclusion that in its detailed provisions for revoking a naturalization because of fraud or illegal procurement not appearing on the face of the record, Congress formulated a self-contained exclusive procedure. Its procedure was self-contained and exclusive, it does away with the Government's argument that the complaint for denaturalization maybe brought into some general power instead of under the statute. Then the second sentence of the next paragraph is significant.
Stanley Reed: Well that -- that means that the -- that the affidavit was -- have to be made by a person familiar with the facts whether it was the United States Attorney which seems almost inconceivable most of the case. But each time that you have to get a person who is familiar with the facts and was willing to make an affidavit.
Orrin G. Judd: I think that's right.
Tom C. Clark: I thought you said a U.S. Attorney can make it.
Orrin G. Judd: Well, if the U.S. Attorney has facts on which he can set forth --
Stanley Reed: Those facts of his own knowledge.
Orrin G. Judd: Facts of -- facts --
Felix Frankfurter: Why should it be -- why should it be of his own knowledge? I don't understand that at all. There are thousands of cases are brought everyday in the City of New York, are information and belief.
Orrin G. Judd: But there the -- where it's an affidavit, the basis for the information and belief is set forth.
Felix Frankfurter: Well yes, but I don't see why the U.S. Attorney doesn't -- can't set forth the basis on which he takes action everyday, as I understand his job. Everyday he makes his action on information that comes through the appropriate government agent.
Orrin G. Judd: Well, if we look at the -- if we look at the practice under this Act however, Justice Frankfurter, we'll find that the affidavits generally filed have not been affidavits of the United States Attorney.
Felix Frankfurter: But I -- all right --
Orrin G. Judd: They -- it's an affidavit of someone in the Immigration and Naturalization Service.
Felix Frankfurter: Well I -- I'm not suggesting that it must be by the U.S. Attorney. I'm suggesting that an affidavit on the basis of which the U.S. Attorney acts whether he makes the affidavit or whether he offends the affidavit or somebody in the Immigration and Naturalization Service and says, on this basis I'm bringing this suit with the matter of (Inaudible)
Orrin G. Judd: Maybe all right under some circumstances. I won't look at the affidavit and see just what sort of grounds he set forth.
Felix Frankfurter: Well that's a different story. That's another story. Everyday in the City of New York, affidavits are challenged as inadequate. I think what we're here discussing whether this -- what the scope of the affidavits are. That would be based on specific circumstances of a particular affidavit.
Stanley Reed: I'm still unclear about your position. Must -- must the affidavit be by a person who is familiar with the fact itself so to be competent in evidence in the Court to sustain the complaint or can it be made on information and belief?
Felix Frankfurter: Well maybe the reason I haven't made myself clear is because I haven't given great asperity to the form of the affidavit, the necessity of the affidavit is what I'm primarily concerned Mr. Justice Reed.
Stanley Reed: This isn't -- not a question of form, this is a question of who furnishes the affidavit.
Orrin G. Judd: I think -- I think there are some things in the affidavit which may definitely be on information and belief. It's a decision by Judge Bourquin some years ago where he said, "It's no defect that the affidavit is on information and belief where it relates to things like the -- whether the witnesses appeared in open court which are easily susceptible of proof.? But I think it should set forth the names of witnesses, the dates and particulars from which the defendant can know exactly what to answer. Whether it's by --
Stanley Reed: And the -- and that -- that could be (Voice Overlap) --
Orrin G. Judd: Whether it's by the Immigration and Naturalization Service attorney or investigator or by someone whom he has persuaded to execute an affidavit.
Stanley Reed: Well, what I'm trying to do is to hear my own mind as to whether or not it would be a very difficult problem for the United States Attorney to comply with this or whether it's -- and that would have weight on the interpretation that one might place upon the statute as to what could be done.
Orrin G. Judd: Well, I don't think it can be argued that it's a very difficult thing to comply with, Mr. Justice Reed, because it's been complied with so frequently and regularly in the past up to within the last few years. The sufficiency of the affidavit has been argued in various cases generally not on the question whether its information and belief but on the question whether the facts that are set forth show fraud.
Stanley Reed: (Voice Overlap) that's sufficient, that's -- that's the question of --
Orrin G. Judd: That's right.
Stanley Reed: -- of whether good cause of action is stated.
Orrin G. Judd: Yes. Whether --
Felix Frankfurter: Are there are number of proceedings which require the filing od an affidavit in support of the remedy sought. It comes to my mind either we had one or two (Inaudible) very unusual proceedings. And of course you had to file an affidavit giving a basis of believing. If you don't detain the fellow, he would makeshift and go to Algeria or wherever.
Orrin G. Judd: Well certainly in the state court where you're getting an attachment, you'd need an affidavit.
Felix Frankfurter: Well I suppose -- I suppose everyday in the Freeport, in the county of New York, there are hundreds of affidavit trials for the purpose of attachments.
Orrin G. Judd: Many of those affidavits are of on information and belief but if they don't state the source of the information and belief, they may be invalid.
Felix Frankfurter: They won't get your attachment.
Orrin G. Judd: That's right. Well the last part of the Bindczyck opinion that I wanted to (Voice Overlap) --
Hugo L. Black: You're not -- you're not claiming as I gather that the affidavit must be made by an eye witness to the (Inaudible) that the charge to justify denaturalization. You're saying it has to be made by somebody on information and belief and set out enough to show that there is a good ground to believing, information and possession whether he has enough to grant it.
Orrin G. Judd: That's all --
Hugo L. Black: (Voice Overlap) -- he doesn't need to be an eye witness.
Orrin G. Judd: That's all I have to argue at this time, Mr. Justice Black.
Hugo L. Black: That's what I thought.
Orrin G. Judd: Yes
Tom C. Clark: (Inaudible)
Orrin G. Judd: Well, I think that may be part of the grounds for his information and belief. I don't --
Tom C. Clark: He has an affidavit (Inaudible)
Orrin G. Judd: I would think -- I would think that would be part of the grounds for his information and belief. Now this Court will have to decide this -- will have to decide either in this case or in some other case that may not be ours --
Stanley Reed: Well, I noticed --
Orrin G. Judd: -- just what is necessary.
Stanley Reed: -- the lower -- the lower court and that's the only court that wrote on it really. They say that the United States Attorney must be furnished with an affidavit on page 14 of your record.
Orrin G. Judd: Yes. Well that is the usual procedure, Mr. Justice Reed. That the affidavit is furnished by the --
Stanley Reed: Well, that -- that's the holding --
Orrin G. Judd: -- Immigration and Naturalization Service.
Stanley Reed: -- this particular affidavit here was invalid. That's the way they approached it, it seems to me. If it -- it's bad as a significant statement. We must be furnished with an affidavit.
Orrin G. Judd: Well, I think there is significance to the statement that I -- I don't think the Government and the District Court asserted that the verification was an affidavit complying with the statute. I don't think any affidavits that have been filed in most of the cases that we've looked at were as casual and general as the affidavit of verification. I don't think that would be consistent with what the Court referred to in the Bindczyck case as a detailed safeguarded procedure for attacking the degree of evidence of fraud outside the record.
Hugo L. Black: I gather that the Government wanted to test out this and that's all they put in their petition for certiorari is the one and that they had to make an affidavit. I didn't understand from the counsel that they were claiming is so insufficient. Has -- has it been claimed that this is sufficient anywhere in the proceeding?
Orrin G. Judd: Not as far as I know, Mr. Justice Black --
Hugo L. Black: Not as far.
Orrin G. Judd: -- because I have argued the case in all three courts. The -- some indication of the way United States -- of some United States Attorney feel about the matter is set forth in the briefs that we have quoted in our brief. The United States attorney for the southern district has not been filing affidavits. The United States Attorney for the northern district in the Barnes case which this Court reversed last week along with Minker set forth the following as the reasons why he told the Court of Appeals for the Second Circuit that he needed to examine the prospective defendant before the beginning of the proceeding at page 24 of our brief. He said all the revocation proceedings are instituted by United States Attorneys such actions must be based upon affidavit showing good cause therefore. United States Attorneys, do not conduct investigations and the good cause must be supplied by some other agency. This Court's reversal of the Minker case, I don't think indicates any opinion that the affidavit is not necessary. It simply indicates that the affidavit can't be obtained by compulsory testimony of the defendant in advance of the beginning of a proceeding. In fact, I believe the construction of the statute in the Minker case with its endeavor to protect the defendant is consistent of what we're arguing here that this affidavit is a necessary protection for the defendant and we submit that it's a reasonable protection. I pointed out that it's something that the Government can supply without undue difficulty. It does not, to my mind, open up a third round of the trial procedure as Mr. Bishop has told us yesterday. If the affidavit is filed with the complaint, there'll be one motion if this question about the affidavit. There'll be a motion directed to the complaint and the affidavit instead of a motion directed to complaint, that's the same motion. We don't take depositions on that motion. We may have a right to take depositions later on or ask for interrogatories and the affidavit may help us in taking those interrogatories and asking for those depositions. And the 60-day time that were allowed to answer can be better and more intelligently used if we have that affidavit which comes from files that the Government presumably already has before it brings the proceeding than if we have just a general complaint.
Tom C. Clark: Can you get the file?
Orrin G. Judd: Can I get the file? I have been unable Mr. Justice Clark even to get the record of the testimony that was taken of my defendant before the proceeding began. We made a motion for depositions and we were told we should've made a motion for interrogatories. We've made a motion for us -- oh, I'm getting outside the record but we have not been able to get the file.
Hugo L. Black: You mean there's someone, your defendant testified before the immigration officer?
Orrin G. Judd: Yes, sir. That's before the Minker case.
Hugo L. Black: Won't -- won't let you know what he said?
Orrin G. Judd: That was before the Minker case and they told him you're coming involuntarily you know, and he had counsel but we have not been able to get the record of what he said. (Inaudible)
Hugo L. Black: I didn't get that quite Mr. --
Speaker: (Inaudible)
Hugo L. Black: We haven't gotten to that point. We had various -- we had a motion pending on such matters before Judge Bicks, which was held in advance while Judge Palmieri decided this motion, it's dismissed.
Felix Frankfurter: Well, Mr. Judd (Inaudible) by the colloquy which has just taken place satisfying if it (Inaudible) the status, requirement that an affidavit be filed as part of the complaint has no bearing on what the Government must or need not disclose so far as confidential files of the case. The -- the requirement of the affidavit doesn't enlarge the area openness of its fight, wouldn't it?
Orrin G. Judd: No, I don't think -- I don't think that was contemplated.
Felix Frankfurter: In order words, they don't have to -- whatever-- whatever material in the possession of the Government are protected, they'd call it confidential. At a trial, would be protected is not required, I mean, by this -- by the -- the scope of this affidavit.
Orrin G. Judd: I would think though Mr. Justice Frankfurter that if they can't make the affidavit without using information that's confidential, that they won't be able to bring the -- bring the action.
Felix Frankfurter: That's a different story. They can't win on the merits ultimately if they can't make this to look as -- ultimately they ought not to bring the proceeding.
Orrin G. Judd: That's right.
Tom C. Clark: (Inaudible)
Orrin G. Judd: But I think the -- the requirement of the affidavit, Mr. Justice Clark uses an opportunity to find out that fact before the action has begun. And just in conclusion, I -- I want to tell the story of a little bit about what it means, I'm sure you know but it does mean something terrible for a defendant to have a complaint filed against -- in a matter of public record, charging him with having concealed membership in the Communist Party and affiliated organizations. It's something he doesn't like to tell people about, that it's even charged against him, it affects his bank credit. It gives propaganda for people to use against them in union elections. It creates a threat of ultimate deportation and cast a cloud on his whole future. He can't make plans while such a proceeding is pending. This Court has said that denaturalization carries the laws of all that makes life worth living. And Congress when it passed the statute in 1906 considerate of the immigrants who were coming into this country by the million at that time and of there frequent lack of adequate legal protection and advice on the laws, Congress enacted a self-contained statute with provisions for the protection of the defendant with provisions that he might be sued for denaturalization only in the district where he lives. That they'd be given 60 days notice of the proceedings against them and that the complaint to be based upon affidavit showing good cause. I believe so that he can look at that affidavit and know something actual about the facts during that 60 days that he was preparing. And we think we're asking for something the statute entitles us to. Something of a serious nature of the charge and the right at stake requires that something that the Government can reasonably be asked to furnish it. Thank you.
Earl Warren: Mr. Bishop.
J.F. Bishop: I believe I have three minutes. I'll have to make the statements very quickly. First, as to the information requested as to the number of denaturalization proceedings, we have not been able to compile that. At -- as of this moment that's being worked on and will be sent later because it's not classified down in detail to that extent. We have no quarrel with the -- the intent, the obvious intent of the Congress as all of these years to protect from the admittedly serious matter of denaturalization. The question is not rather the denaturalization, the matter is serious but what did the Congress provide? The commission whose report preceded the 1906 legislation said nothing about an affidavit at all and they were certainly concerned with safeguards because they put in the notice provision for that purpose. I -- I still must complain as I complained yesterday that that great gap between what was enacted and that power language which was well done today is not explained. That appears on the Government's brief. The difference in the language appears on page 26 of the Government's brief. We have set it forth in the margin. The language which had said the United States shall upon affidavit made by any credible person, have the power to institute proceedings, language which could indicate that the power is conditioned on it was changed to read into an entirely different thing, we think, making it a duty that said -- and that change is, that it shall be the duty of the United States district attorneys for the -- for the respective districts upon affidavit showing good cause therefore to institute proceedings. There is no explanation of that change in terms of saying that they wanted to cut out the additional jurisdiction because they could do that and did that by a slight change in the second part of the sentence. But in the first part, there has been a material change. We have only hypothesis to explain that change and we have presented the fact that there were before. This Congress, three bills and before the preceding Congress, two bills which had given the citizen, an outside citizen, the right to present a natural -- denaturalization proceeding. That's why we think this was a change to make it a duty and that it was to that duty that the affidavit related, that the United States Attorney could not be enforced to act. I want to hurry on to one more thing. I take it as a question --
Earl Warren: Mr. Bishop, if I -- if I might just take one -- one moment. The -- the reason that doesn't impress me very much was because as I understand it, the Assistant Attorney General at that time prepared this Act and the Attorney General himself, very shortly after the Act gave the opposite construction to it that you have given in this opinion that we're discussing the other day. Now, I suppose you would have been familiar with that legislative history. Why would he -- why would he ignore it?
J.F. Bishop: Am I --
Earl Warren: You may --
J.F. Bishop: -- permitted to answer that?
Earl Warren: Yes.Yes, please. And then you may make your other point too because I took your time.
J.F. Bishop: Thank you. Yes, sir. I will disagree with the Chief Justice on his first assumption. I have just stated that that commission on which the Department of Justice was represented specifically did not do anything about this -- an affidavit had nothing to do with the kind. All they presented was a power language and they showed very clearly what protections they had in mind. They put in a notice provision. The affidavit did not come in with that permission on which the United States Attorney was represented. As to your second point we are fated to disagree. I consider the routine rather hastily considered things which has been brought since --
Earl Warren: But it --
J.F. Bishop: -- in better consideration.
Earl Warren: But didn't it declare the policy of the Attorney Generals' office from that time until at least 1929 as you stated yesterday?
J.F. Bishop: I do not think so. In fact the --
Earl Warren: Well you -- I thought you said so yesterday.
J.F. Bishop: No, I -- may I correct the -- any of misimpression --
Earl Warren: Yes.
J.F. Bishop: -- that I might have given. I do not think that that -- that that letter when it is read carefully in connection with the correspondence really answers or really deals with the thing on any broad basis and the Attorney General spoke very clearly about protecting against the -- the institution of proceedings by people lacking in responsibility. And that seem to me the essence of his letter if I may turn to that a moment because I want to point that out and that I believe it's inconsistent. It appears on the -- in our brief in page 31 where we have quoted the entire letter. And I notice there that he says the object of the provision undoubtedly is to protect holders of certificates from annoyance and attorneys from unnecessary labor as a result of mere complaints by individuals unable to produce evidence and unwilling to assume the responsibility therefore. A U.S. Attorney who files a complete complaint of this kind signs his name to it and is willing to go ahead is not an individual unable to produce evidence and unwilling to assume responsibility.
Earl Warren: Now Mr. Bishop, I am sure it was an inadvertentce but you left out this part of the letter. I am therefore of opinion and before any United States Attorney is authorized to institute proceedings with a cancellation of the naturalization certificate. He should be furnished with a proper affidavit on which the proceedings may be based.
J.F. Bishop: Again the problem of informal language authorized by whom? That in the statute or by the department to proceed as well as involved there. The second thing, he should be furnished an Attorney General who is writing a precise and inclusive discussion of this matter wouldn't say furnished if he meant that it's to be filed in the Court if that's what they have been talking about. Lastly, the last item on which the proceedings may be based, is he talking about what is will so fully discussed in the Minker case for the U.S. Attorney to based action on it? Or did it mean that the statute said that it must be based? Again and again, the statute could've been precise on that. There is easy language. That is why I object to the acceptance of an informal letter as decisive of the thing and again I must repeat that that has been discarded since and is certainly not so considered today.
Hugo L. Black: Since when was -- when was it -- you confuse me now, the Act was passed when?
J.F. Bishop: The -- the forerunner of this Act was 1906.
Hugo L. Black: All right.
J.F. Bishop: This letter was nine months later.
Hugo L. Black: All right. Now how long after that? I'm a little confused now about your answer to the --
J.F. Bishop: Surely.
Hugo L. Black: -- Chief Justice a moment ago. How long was it after that? How many years after that the department continued to require affidavits and to use affidavits in connection with the proceeding?
J.F. Bishop: Two answers. First, I do not know exactly. Second, the Knight case 1923 already was a case in which the Court said -- apparently no affidavit was filed but we say that it isn't required anyway. That's 1923 already.
Hugo L. Black: 1923?
J.F. Bishop: Knight. That is cited in our brief. So as of 1923 it may or may not have been a routine.
Hugo L. Black: Well up to that time what was it -- what the -- they -- the department should know, I suppose.
J.F. Bishop: I -- I would not know. I -- as a matter of -- off the record a moment, I read that available correspondence that was furnished to me at my request by archives and by our files. I don't know how completely they garnered everything that was available. But I read all of that material and I found very -- nothing on the matter because far from the Attorney General having concerned himself much with this and he being in authority, he had referred everything over to that committee on naturalization upon which one member was sitting.
Hugo L. Black: But he --
J.F. Bishop: And that's --
Hugo L. Black: He didn't refer the case, did he?
J.F. Bishop: That's why I haven't been able to find it.
Hugo L. Black: All the cases since then up to 1923, were they started after affidavits were made (Voice Overlap)?
J.F. Bishop: I would not know that. As I say I am -- my efforts define that have been nullified. I do know that rather far back, in 1943 this I have actually seen the memorandums, to department which explored this very fully at least as well as he could and it of course followed Schwinn and that left it to the United States Attorneys, they could file or they could not file.
Felix Frankfurter: I think before you sit down I ought to say one word, as you all -- we all repeated the objection, this was an informal date --
J.F. Bishop: Yes, sir.
Felix Frankfurter: -- dashed off. Now, I was a young man and to a young man then was, the Attorney General of the United States was the kind of an all (Inaudible) But I didn't know Attorney General (Inaudible) I had official relations with my talk with them. But he wasn't an informal (Inaudible) in the sense of a very charming, highly refined person, maybe a young fellow, (Inaudible). But I cannot allow it to be less, the impression to be less that when he was asked by a Cabinet officer a question that Mr. (Inaudible) sat down and dashed off something without reading the statute, without talking to Mr. Cooling, with a greater authority on this subject, and (Inaudible) and that's what he actually deliberately put down on me in an opinion expressed over his signature, not some law firm or somebody at the Department of Justice but himself is inconceivable that he didn't study the statute, examine it, consider it. Talked with those who had the administration of it in charge with belief and then wrote this letter in a suggestion that it's informal because it doesn't take six pages or it doesn't have footnotes, there's something that I cannot (Inaudible)
Mr. Attorney General: Mr. Justice Warren, if there is a memorandum on the number of denaturalization submitted, we have leave to submit a comment on it --
Earl Warren: Yes, indeed.
Mr. Attorney General: -- for various classifications of it that had been made to be considerable --
Earl Warren: Yes, yes, indeed.
J.F. Bishop: Are there are other questions about (Voice Overlap) --
Speaker: Mr. Bishop, I wanted to --
J.F. Bishop: Yes.
Speaker: Could I ask you about the question presented (Inaudible) that that is a problem of good faith. What is the Government's interpretation of -- of the question that's presented here? The words are on page 2 of your brief report of your brief to petition for certiorari and it said whether the filing of an affidavit showing good cause. And you have heard the comments that the -- the affidavit that's attached to the petitioner's complaint was not involved in this. What -- what is the government's interpretation of the question presented in the light of the opinion?
J.F. Bishop: Well, was is it (Inaudible)
Speaker: Well, what's your answer to (Inaudible)
J.F. Bishop: Well, I -- I'm not sure that I understand the question. I -- I interpret the opinion below as having made a multiple decision. First, that the attorney -- the United States Attorney must be furnished an affidavit. And then since he must be furnished an affidavit that that must be filed in Court. The government's position is that the attorney -- that the United States Attorney is not deprived by this statute of acting upon his own information and proceeding upon that if he considers himself to have a proper case. Now in this case of course it's clear that he acted under three -- Section 340.
Speaker: Yes. He --
J.F. Bishop: But we (Voice Overlap) --
Speaker: He doesn't have the affidavit of a third party.
J.F. Bishop: As a matter of fact --
Speaker: Well, I mean the record doesn't show (Voice Overlap).
J.F. Bishop: The record does not show it and he said he did not have to have it if he had better advices given at that time. But what I do answer is that this was brought under Section 340 so that the Government's position is we have to comply with what Section 340 calls for but we insist that Section 340 calls specifically and clearly for the notice provisions and it specifies the venue. But all that it says about an affidavit is with respect to that mandatory portion which says it shall be the duty of the United States Attorney to act upon.
Earl Warren: You do not contend that if the -- if the Section requires the filing of an affidavit, the verification of this complaint supplies the equivalent of that affidavit.
J.F. Bishop: We do not contend in this case that it does.
Earl Warren: No. You didn't raise that (Voice Overlap).
J.F. Bishop: We do not raise that point. That is very clear.
Earl Warren: Yes.
J.F. Bishop: Apparent -- that --believe me to my final utterance in which I've been delayed --
Earl Warren: (Inaudible)
J.F. Bishop: -- and that is this that we needed no better demonstration than the questioning here to indicate what a genuine additional go around is going to be required. We have not formulated and we would resist I am sure if this -- if this Court merely said that an affidavit is required. We would certainly resist the idea that it would -- could go to the extent of requiring every witness for instance to make an affidavit. And yet from the respondent's brief, I don't know how far they would go and how plaguing a procedure this would be and how many more go arounds. I spoke yesterday about the inroads on the Government personnel but that is not the real difficulty of this. If Congress had intended that there should be this additional delay intrinsic in having an affidavit it certainly wouldn't have tied it up almost parenthetically with the statement of a duty to act upon the affidavit instead of putting it backward belong -- along with the procedure requirements.
Earl Warren: But wouldn't the -- wouldn't the administrative experience show what you would be put to if you have to file this affidavit, you've been filing those affidavit for 45 years.
J.F. Bishop: On occasion --
Earl Warren: Or 50 years, or on many occasions and apparently for 25 years if so or 20 years or so, you -- you always file an affidavit as far as the record shows in this case. Now, you must have some experience by this time that would indicate to you what you would have to do on that regard?
J.F. Bishop: We have cited the experience. The Schwinn case in which they made such -- to do about it that the question was set aside by the Court as not being material because it was not required. We've contested those matters and for just that reason. And that is -- that is our reliance in the matter which we were reluctant to give up. We say that it is not required and if we do furnish it and get to be a virtual third go around on the facts, well that's something that was certainly not spelled out by the Congress here.
Speaker: (Inaudible)
J.F. Bishop: I did not hear the beginning of this, question, I'm sorry.
Speaker: (Inaudible) a regulation and directive to the U.S. Attorneys on this affidavit problem?
J.F. Bishop: I have found the contrary, a memorandum as far back, it's 1943 in which the matter was carefully gone over and analyzed, on the authority of the Schwinn case. And the -- and largely because the only authorities were already a quarter of a century in the past when this 1952 Act (Inaudible) begin said that they did not have to file. It was their analysis and I can only say that I suspected this instruction went out that the affidavit was not required. The U.S. Attorneys could file it when they felt it would prevent too much of a go around on discovery and depositions but they did not have to do so and should not do so if (Voice Overlap) --
Speaker: That was a -- that was after the Immigration Service was transferred to the Department of Justice.
J.F. Bishop: 1943.
Speaker: Why don't you check and see you're going to make some other report to the Court, Chief Justice (Inaudible) did you check and see if that's directly went to U.S. Attorneys, the date of it, and also find out the date the Immigration Services transferred departments yesterday.
Earl Warren: (Inaudible) you may respond to that Mr. -- to which Judd. Number 460. Mr. Bishop, if -- if there was a notice went up to the District Attorneys throughout the country, you will send us copy of that, I assume.
J.F. Bishop: If I can find that.
Earl Warren: Yes.