352 U.S. 330 (1957), 14, In re Groban

Docket Nº:No. 14
Citation:352 U.S. 330, 77 S.Ct. 510, 1 L.Ed.2d 376
Party Name:In re Groban
Case Date:February 25, 1957
Court:United States Supreme Court

Page 330

352 U.S. 330 (1957)

77 S.Ct. 510, 1 L.Ed.2d 376

In re Groban

No. 14

United States Supreme Court

Feb. 25, 1957

Argued November 6, 1956



After a fire occurred on premises of a corporation owned and operated by appellants in Ohio, the State Fire Marshal subpoenaed appellants to appear as witnesses in an investigation by him of the cause of the fire. Relying on Page's Ohio Rev.Code, 1954, § 3737.13, which provides that such an investigation "may be private" and that the Marshal may "exclude from the place" where the investigation is held "all persons other than those required to be present," he refused to permit appellants' counsel to be present at the proceeding. Appellants declined to be sworn and to testify in the absence of their counsel. This was treated as a violation of § 3737.12, which forbids any witness to refuse to be sworn or to refuse to testify, and, pursuant to § 3737.99(A), the Marshal committed appellants to jail until such time as they should be willing to testify. Denial of their application for a writ of habeas corpus was affirmed by the State Supreme Court.


1. Under 28 U.S.C. § 1257(2), this Court has jurisdiction of this appeal. Pp. 331-332.

2. Appellants had no constitutional right to be assisted by counsel in giving testimony at the investigatory proceeding conducted by the Fire Marshal, and, insofar as it authorizes the exclusion of counsel while a witness testifies, § 3737.13 is not repugnant to the Due Process Clause of the Fourteenth Amendment. Pp. 332-335.

164 Ohio St. 26, 128 N.E.2d 106, affirmed.

REED, J., lead opinion

MR. JUSTICE REED delivered the opinion of the Court.

The question presented by this appeal is whether appellants had a constitutional right under the Due Process Clause of the Fourteenth Amendment to the

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assistance of their own counsel in giving testimony as witnesses at a proceeding conducted by the Ohio State Fire Marshal to investigate the causes of a fire.

After a fire occurred on the premises of a corporation owned and operated by appellants, the Fire Marshal started an investigation into the causes of the fire, and subpoenaed appellants to appear as witnesses. The Fire Marshal refused to permit appellants' counsel to be present at the proceeding, relying on § 3737.13 of the Ohio Code, which provides that the "investigation . . . may be private" and that he may "exclude from the place where [the] investigation is held all persons other than those required to be present. . . ."1 Appellants declined to be sworn and to testify without the immediate presence of their counsel, who had accompanied them to the hearing. Their refusal was treated as a violation of § 3737.12, which provides that "No witness shall refuse to be sworn or refuse to testify. . . ." Section 3737.99(A) provides that

Whoever violates section 3737.12 . . . may be summarily punished, by the officer concerned, by . . . commitment to the county jail until such person is willing to comply with the order of such officer.

The Fire Marshal accordingly committed appellants to the county jail until such time as they should be willing to testify.2 Appellants' application for a writ of habeas corpus was denied by the Ohio Court of Common Pleas, and this denial was affirmed on appeal by the Ohio Court of Appeals and by the Ohio Supreme Court.3

We postponed further consideration of the question of jurisdiction to the hearing on the merits. 351 U.S. 903. The Ohio Supreme Court construed § 3737.13 to

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authorize the Fire Marshal to exclude appellants' counsel from the proceeding. Since appellants' attack is on the constitutionality of that section, we have jurisdiction on appeal. 28 U.S.C. § 1257(2).

We note at the outset that appellants explicitly disavow making any direct attack on the Fire Marshal's power of summary punishment under § 3737.99(A). They challenge not the validity of the procedure by which they were committed to jail, but the constitutional sufficiency of the grounds on which they were so committed. Their sole assertion is that the Fire Marshal's authority to exclude counsel under § 3737.13 was unconstitutional because they had a right, under the Due Process Clause, to the assistance of their counsel in giving their testimony.

It is clear that a defendant in a state criminal trial has an unqualified right, under the Due Process Clause, to be heard through his own counsel. Chandler v. Fretag, 348 U.S. 3. Prosecution of an individual differs widely from administrative investigation of incidents damaging to the economy or dangerous to the public. The proceeding before the Fire Marshal was not a criminal trial, nor was it an administrative proceeding that would in any way adjudicate appellants' responsibilities for the fire. It was a proceeding solely to elicit facts relating to [77 S.Ct. 513] the causes and circumstances of the fire. The Fire Marshal's duty was to "determine whether the fire was the result of carelessness or design," and to arrest any person against whom there was sufficient evidence on which to base a charge of arson.4

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

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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,5 nor can a witness before other investigatory bodies.6 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.7 U.S.Const., Amend. V.; Ohio Const., Art. I, § 10. See Adamson v. California, 332 U.S. 46, 52. This is a privilege available in investigations, as well as in prosecutions. See In re Groban, 164 Ohio St. 26, 28, 128 N.E.2d 106, 108, and 99 Ohio App. 512, 515, 135 N.E.2d 477, 480; McCarthy v. Arndstein, 266 U.S. 34, 40; Adams v. Maryland, 347 U.S. 179. We have no doubt that the privilege is available in Ohio against prosecutions, as well as convictions reasonably feared. Cf. Ullmann v. United States, 350 U.S. 422, 431. The mere fact that suspicion may be entertained of such a witness, as appellants believed existed here, though without allegation of facts to support such a belief, does not bar the taking of testimony in a private investigatory proceeding.

It may be that the number of people present in a grand jury proceeding gives greater assurance that improper

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use will not be made of the witness' presence. We think, however, that the presumption of fair and orderly conduct by the state officials without coercion or distortion exists until challenged by facts to the contrary. Possibility of improper exercise of opportunity to examine is not, in our judgment, a sound reason to set aside a State's procedure for fire prevention. As in similar situations, abuses may be corrected as they arise, for example, by excluding from subsequent prosecutions evidence improperly obtained.

Ohio, like many other States, maintains a division of the state government directed by the Fire Marshal for the prevention of fires and reduction of fire losses.8 Section 3737.13, which has been in effect since 1900, [77 S.Ct. 514]9 represents a determination by the Ohio Legislature that investigations conducted in private may be the most effective method of bringing to light facts concerning the origins of fires, and, in the long run, of reducing injuries and losses from fires caused by negligence or by design. We cannot say that this determination is unreasonable. The presence of advisors to witnesses might easily so far encumber an investigatory proceeding as to make it unworkable or unwieldy. And with so weighty a public interest as fire prevention to protect, we cannot hold that the balance has been set in such a way as to be contrary to "fundamental principles of liberty and justice." Hebert v. Louisiana, 272 U.S. 312, 316. That is the test to measure the validity of a state statute under the Due Process Clause.

Appellants urge, however, that the Fire Marshal's power to exclude counsel under § 3737.13 must be considered in the light of his power of summary punishment

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under § 3737.99(A), and they would have us hold that, so considered, his power to exclude counsel was unconstitutional. We held in In re Oliver, 333 U.S. 257, that a witness before a one-man grand jury, a judge, could not constitutionally be punished summarily for contempt of the grand jury without being allowed to be represented by his counsel. We see no relation between the premise that appellants could not be punished without representation by counsel and the conclusion that they could not be questioned without such representation. Section 3737.13 may contain a constitutional flaw if it should be construed to authorize the exclusion of counsel while the Fire Marshal determines that a witness has violated § 3737.12 and orders the witness committed. The sole assertion of a constitutional violation that appellants relied upon before the Ohio Supreme Court, and the only one open on the record here -- the authorization in § 3737.13 of the exclusion of counsel while a witness testifies -- is not well founded. We hold that appellants had no constitutional right to be assisted by their counsel in giving testimony at...

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