360 U.S. 287 (1959), 378, Anonymous Nos. 6 and 7 v. Baker

Docket Nº:No. 378
Citation:360 U.S. 287, 79 S.Ct. 1157, 3 L.Ed.2d 1234
Party Name:Anonymous Nos. 6 and 7 v. Baker
Case Date:June 15, 1959
Court:United States Supreme Court

Page 287

360 U.S. 287 (1959)

79 S.Ct. 1157, 3 L.Ed.2d 1234

Anonymous Nos. 6 and 7



No. 378

United States Supreme Court

June 15, 1959

Argued March 25, 1959



Appellants, who are licensed private detectives and private investigators, but not attorneys, were convicted of contempt for refusal to answer pertinent questions put to them as witnesses summoned before a New York judge who, pursuant to court order, was conducting a nonadversary, nonprosecutorial, preliminary factfinding inquiry, analogous to a grand jury proceeding, into alleged unethical practices of attorneys and others acting in concert with them. Appellants did not plead the state privilege against self-incrimination, but based their refusal to testify solely on the fact that their counsel was required to remain outside the hearing room while they were being interrogated, though the judge had expressed his readiness to suspend the questioning whenever appellants wished to consult with counsel. It was customary for such proceedings to be kept secret, like grand jury proceedings, and this practice was sanctioned by New York statute and by the court order authorizing the inquiry.


1. Since the validity under the Federal Constitution of the state statute pertaining to such proceedings was not "drawn into question" or passed upon by the state courts in this case, this Court lacks jurisdiction of this appeal under 28 U.S.C. § 1257(2), but certiorari is granted. P. 290.

2. Petitioner's conviction of contempt for refusal to testify in these circumstances did not offend the Due Process Clause of the Fourteenth Amendment. In re Groban, 352 U.S. 330. Pp. 290-298.

(a) The requirement of the authorizing court order that the inquiry be private and the exclusion of counsel for the witnesses from the hearing room were not procedural innovations, but were in accordance with established state policy. Pp. 290-294.

(b) To declare such a policy unconstitutional would necessitate ignoring weighty considerations supporting it, and would require going far beyond anything indicated by this Court's past "right to counsel" decisions under the Fourteenth Amendment. P. 294-296.

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(c) Notwithstanding an informal statement made by a staff assistant, the record in this case does not warrant a conclusion that appellants were being questioned not merely as witnesses, but with an eye to their future prosecution. Pp. 296-298.

4 N.Y.2d 1034, 1035, 152 N.E.2d 651, affirmed.

HARLAN, J., lead opinion

MR. JUSTICE HARLAN delivered the 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

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practices among segments of the Kings County Bar,1 ordered an investigation into these alleged conditions by an Additional Special Term of the Supreme Court, Mr. Justice Arkwright presiding.2

[79 S.Ct. 1159] 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, Matter of M. Anonymous v. Arkwright, 5 A.D.2d 790, 170 N.Y.S.2d 535, leave to appeal denied, 4 N.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.3 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

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"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),4 then appealed to this Court, and we postponed further consideration of jurisdiction to a hearing on the merits. 358 U.S. 891.

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 Matter of M. Anonymous v. Arkwright, supra, and Matter of 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). Nevertheless, treating the appeal as a petition for writ of certiorari, we grant the writ. 28 U.S.C. § 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

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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...

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