Anonymous v. Baker/Opinion of the Court

Appellants have ben convicted of contempt for refusal to answer pertinent questions put to them as witnesses summoned in a state judicial Inquiry into alleged improper practices at the local bar. The sole issue before us is whether this conviction offended the Due Process Clause of the Fourteenth Amendment to the Federal Constitution by reason of the fact that the justice in charge of the Inquiry had required counsel retained by appellants to remain outside the hearing room while they were being interrogated, even though he expressed his readiness to suspend the course of questioning whenever appellants wished to consult with counsel. No claim is made that appellants were not fully represented by counsel in the contempt proceedings themselves or that such proceedings were otherwise lacking in due process.

On January 21, 1957, the Appellate Division of the Supreme Court of the State of New York, Second Department, acting pursuant to § 90 of the State Judiciary Law, 29 N.Y.Laws Ann. § 90 (McKinney 1948), and in response to a petition of the Brooklyn Bar Association charging 'ambulance chasing' and related unethical practices among segments of the Kings County Bar, ordered an investigation into these alleged conditions by an Additional Special Term of the Supreme Court, Mr. Justice Arkwright presiding.

Appellants, licensed private detectives and investigators, but not attorneys, appeared before the Special Term pursuant to witness subpoenas, accompanied by counsel. The presiding justice, acting upon the authority of an appellate decision made during the course of this same Inquiry, M. Anonymous v. Arkwright, 5 A.D.2d 790, 170 N.Y.S.2d 535, leave to appeal denied, 4N.Y .2d 676, 173 N.Y.S.2d 1025, 149 N.E.2d 538, informed appellants that their counsel would not be allowed in the hearing room while they were being questioned, but that they would be free to consult with him at any time during their interrogation. Solely because of that limitation upon the participation of counsel, appellants thereafter refused to answer all manner of questions put to them. Their conviction for contempt, carrying a sentence of 30 days' imprisonment, followed. The Appellate Division affirmed, Application of Anonymous No. 6, 6 A.D.2d 719, 176 N.Y.S.2d 227, and the New York Court of Appeals, finding that 'no substantial constitutional question is involved,' dismissed ensuing appeals. 4 N.Y.2d 1034, 1035, 177 N.Y.S.2d 687, 152 N.E.2d 651. Appellants, proceeding under 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2), then appealed to this Court, and we postponed further consideration of jurisdiction to a hearing on the merits. 358 U.S. 891, 79 S.Ct. 151, 3 L.Ed.2d 119.

Dealing first with the question of our jurisdiction, we think it clear that this appeal must be dismissed. It is predicated on the ground that the state courts held valid under the Federal Constitution § 90, subd. 10 of New York's Judiciary Law (see Note 6, infra), said to be the basis of the Special Term procedure here attacked. However, it appears that the federal constitutionality of § 90, subd. 10 was never 'drawn in question' or passed upon in the state courts; the Appellate Division, from whose decision the Court of Appeals denied leave to appeal, simply relied on the earlier cases of M. Anonymous v. Arkwright, supra, and S. Anonymous v. Arkwright, 5 A.D.2d 792, 170 N.Y.S.2d 538, which in turn appear not to have involved such an adjudication. In these circumstances we must hold that we lack jurisdiction under 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2). Nevertheless, treating the appeal as a petition for writ of certiorari, we grant the writ. 28 U.S.C. § 2103, 28 U.S.C.A. § 2103.

We turn to the merits. An understanding of the nature of the proceedings before the Special Term is first necessary. In New York the traditional powers of the courts over the admission, discipline, and removal of members of the bar is placed by law in the Appellate Division of the State Supreme Court. N.Y. Judiciary Law, § 90. When the Appellate Division is apprised of conditions calling for general inquiry it usually appoints, as here, a Justice of the Supreme Court, sitting at Special Term, to make a preliminary investigation. The duties of such a justice are purely investigatory and advisory, culminating in one or more reports to the Appellate Division upon which future action may then be based. In the words of Mr. Justice Cardozo, then Chief Judge of the New York Court of Appeals, the proceedings at Special Term thus simply constitute a 'preliminary inquisition, without adversary parties, neither ending in any decree nor establishing any right * *  * a quasi administrative remedy whereby the court is given information that may move it to other acts thereafter *  *  * .' People ex rel. Karlin v. Culkin, 248 N.Y. 465, 479, 162 N.E. 487, 492, 60 A.L.R. 851.

Customarily the proceedings at Special Term are conducted in private, for reasons which Mr. Justice Cardozo explained in the Karlin case as follows (248 N.Y. at pages 478-479, 162 N.E. at page 492):

'The argument is pressed that, in conceding to the court a     power of inquisition, we put into its hands a weapon whereby      the fair frame of a lawyer, however innocent f w rong, is at      the mercy of the tongue of ignorance or malice. Reputation in     such a calling is a plant of tender growth, and its bloom,      once lost, is not easily restored. The mere summons to appear     at such a hearing and make report as to one's conduct, may      become a slur and a reproach. Dangers are indeed here, but     not without a remedy. The remedy is to make the inquisition a     secret one in its preliminary stages. This has been done in     the first judicial department, at least in many instances, by the order of the      justice presiding at the hearing. It has been done in the     second judicial department *  *  * by order of the Appellate      Division directing the inquiry. A preliminary inquisition * *      * is not a sitting of a court within the fair intendment of      section 4 of the Judiciary Law, whereby sittings of a court      are required to be public. * *  * The closest analogue is an      inquisition by the grand jury for the discovery of crime.'

By analogy to grand jury proceedings counsel are not permitted to attend the examination of witnesses called in such an investigation, cf. People ex rel. McDonald v. Keeler, 99 N.Y. 463, 485, 2 N.E. 615, 626-627, although the New York courts have held that the Special Term may in its discretion permit such attendance where it appears that the witness himself is a target of the inquiry. See M. Anonymous v. Arkwright, supra, 5 A.D.2d at page 791, 170 N.Y.S.2d at page 538.

These practices have received legislative approval, evidenced by § 90, subd. 10 of the State Judiciary Law, quoted in the margin, and by the Legislature's refusal in 1958 to amend the State Civil Rights Law, 8 N.Y.Laws Ann. § 1-242 (McKinney 1948), so as to require that counsel be allowed to attend the interrogation of witnesses in proceedings of this character.

Thus, what we have here in the Appellate Division's order that the Inquiry be private and in the Special Term's exclusion of counsel from the hearing room is not a procedural innovation by a particular court or judge in a particular case, but an expression of established state policy. We are now asked to declare that policy unconstitutional.

To do so would not only necessitate our ignoring the weighty considerations which support New York's policy, but would require us to limit state power in this area of investigation far beyond anything indicated by this Court's past 'right to counsel' decisions under the Fourteenth Amendment. Although we have held that in state criminal proceedings, which these are not, M. Anonymous v. Arkwright, supra, a defendant has an unqualified right to be represented at trial by retained counsel, Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4, we have not extended that right to the investigation stages of such proceedings. See Cicenia v. LaGay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523; See also Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448. Again, while it has been decided that there is a constitutional right to counsel in a criminal contempt proceeding, growing out of a state investigation, conducted before a judge sitting as a 'one-man grand jury,' In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 500, 92 L.Ed. 682, we have held that a witness examined in a state investigation conducted in private is not constitutionally entitled to the assistance of counsel while being interrogated. In re Groban, 352 U.S. 330, 77 S.Ct. 510, 1 L.Ed.2d 376.

In the Groban case we upheld the constitutionality of an Ohio statute which, as construed by the Ohio courts, authorized the Fire Marshal to exclude from the hearing room counsel representing those summoned to testify before him in an investigation into he causes of a fire. We there said (352 U.S. at pages 332-333, 77 S.Ct. at page 513):

'The fact that appellants were under a legal duty to speak     and that their testimony might provide a basis for criminal      charges against them does not mean that they had a      constitutional right to the assistance of their counsel. Appellants here are witnesses from whom information was     sought as to the cause of the fire. A witness before a grand     jury cannot insist, as a matter of constitutional right, on      being represented by his counsel, nor can a witness before      other investigatory bodies. There is no more reason to allow     the presence of counsel before a Fire Marshal trying in the      public interest to determine the cause of a fire. Obviously     in these situations evidence obtained may possibly lay a      witness open to criminal charges. When such charges are made     in a criminal proceeding, he then may demand the presence of      his counsel for his defense. Until then his protection is the     privilege against self-incrimination.' (Footnotes omitted.)

The Groban case is controlling here and requires rejection of appellants' constitutional claims. As did Ohio in Groban, New York has a privilege against self-incrimination, N.Y.Const., Art. I, § 6, which was freely exercised by other witnesses in this investigation, and was fully available to these appellants. Moreover, the circumstance that this investigation was conducted by an experienced judge, rather than an administrative official, and the fact that appellants throughout their interrogation were freely given the right to consult counsel, notwithstanding his exclusion from the hearing room, make the constitutional claim here far less tenable than that found wanting in Groban.

Appellants seek to escape from Groban by arguing that they were summoned before the Special Term not as mere witnesses but with an eye to their future prosecution. This contention rests upon an informal 'off the record' conversation which appellants and their counsel had with an assistant on the Inquiry's staff some four months before appellants were actually examined. In response to counsel's inquiry as to 'what was wanted of his clients in this matter,' the assistant made the replies set forth in the margin. We think that the role in which these appellants were summoned to the Inquiry is to be judged by the actions of the Special Term, not by the statements of a subordinate staff member, evidently motivated by nothing more than a desire to avoid a plea of self-incrimination which would have blocked the Inquiry from obtaining possibly helpful information. The record shows that the Special Term, aware of the claims as to this occurrence, which it caused to be fully explored in the presence of appellants and their counsel, repeatedly assured appellants that they were before the Inquiry solely as witnesses. That they might later be faced with criminal charges, adds nothing to their present constitutional claim. In re Groban, supra, 352 U.S. at pages 332 333, 77 S.Ct. at pages 512-513.

The final order of the Court of Appeals of the State of New York must be affirmed.

Affirmed.

Mr. Justice BLACK, with whom The CHIEF JUSTICE, Mr. Justice DOUGLAS and Mr. Justice BRENNAN concur, dissenting.