Raley v. State of Ohio Morgan v. State of Ohio

• Decision Date: 22 June 1959
• Docket Number: 463,Nos. 175,s. 175
• Citation: 360 U.S. 423,79 S.Ct. 1257,3 L.Ed.2d 1344
• Parties: Talmadge RALEY, Joseph Stern and Emmett Calvin Brown, Appellants, v. STATE OF OHIO. Anna H. MORGAN, Appellant, v. STATE OF OHIO
• Court: U.S. Supreme Court

360 U.S. 423

79 S.Ct. 1257

3 L.Ed.2d 1344

Talmadge RALEY, Joseph Stern and Emmett Calvin Brown, Appellants,

v STATE OF OHIO.

Anna H. MORGAN, Appellant,

v. STATE OF OHIO.

Nos. 175, 463.

Argued April 22, 23, 1959.

Decided June 22, 1959.

Mr. Morse Johnson, Cincinnati, Ohio, for appellants Raley and others.

Mrs. Thelma C. Furry, Akron, Ohio, and Mrs. Ann Fagan Ginger, New York City, for appellant Morgan.

Messrs. C. Watson Hover and Carl B. Rubin, Cincinnati, Ohio, for the State of Ohio in No. 175.

Mr. Earl W. Allison, Columbus, Ohio, for the State of Ohio in No. 463.

Mr. Justice BRENNAN delivered the opinion of the Court.

These two appeals involve convictions of four appellants for refusal to answer certain questions put to them at sessions of the 'Un-American Activities Commission' of the State of Ohio, established in the legislative branch of the Ohio Government.¹ The appellants had claimed the privilege against self-incrimination in refusing to answer each of the questions. The cases are before us for the second time; on prior appeals the judgments below were vacated and the causes remanded for reconsideration in the light of Sweezy v. State of New Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311, and Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273. See 354 U.S. 929, 77 S.Ct. 1391, 1 L.Ed.2d 1532. The remand resulted in a reaffirmance of the prior judgment without discussion, 167 Ohio St. 295, 147 N.E.2d 847, and on the present appeals we postponed further consideraton of the jurisdictional questions presented until the arguments on the merits. 358 U.S. 862, 863, 79 S.Ct. 93, 3 L.Ed.2d 96.

The issues tendered by the parties range broadly and involve the power of the Ohio Legislature, in view of existing federal legislation, to investigate activities deemed subversive of the forms of government within the Nation, cf. Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640; the power of the State to compel disclosure of matters interconnected with the protected freedoms of speech and assembly, cf. NAACP v. State of Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488; Sweezy v. State of New Hampshire, supra; the existence of an expressed legislative interest for such an inquiry, and its definition and articulation to the person smmo ned, cf. Watkins v. United States, supra; Sweezy v. State of New Hampshire, supra; Scull v. Com. of Virginia, 359 U.S. 344, 79 S.Ct. 838, 3 L.Ed.2d 865, and the effect on testimonial compulsion of state immunity statutes not affording immunity from federal prosecution, cf. Knapp v. Schweitzer, 357 U.S. 371, 78 S.Ct. 1302, 2 L.Ed.2d 1393. But our disposition of these cases makes it unnecessary to consider the application of the principles of the cases just cited. The appellants were informed by the Commission that they had a right to rely on the privilege against self-incrimination afforded by art. I, § 10, of the Ohio Constitution. The Ohio Supreme Court, however, held that the appellants were presumed to know the law of Ohio—that an Ohio immunity statute deprived them of the protection of the privilege and that they therefore had committed an offense by not answering the questions as to which they asserted the privilege. We hold that in the circumstances of these cases, the judgments of the Ohio Supreme Court affirming the convictions violated the Due Process Clause of the Fourteenth Amendment and must be reversed, except as to one conviction, as to which we are equally divided. After the Commission, speaking for the State, acted as it did, to sustain the Ohio Supreme Court's judg- ment would be to sanction an indefensible sort of entrapment by the State—convicting a citizen for exercising a privilege which the State had clearly told him was available to him. We agree with that part of Judge Stewart's dissenting opinion in the Ohio Supreme Court in which he said: 'since the defendants were apprised by the commission at the time they were testifying that they had a right to refuse to answer questions which might incriminate them, they could not possibly in following the admonition of the commission be in contempt of it * * *.' 164 Ohio St. at page 563, 133 N.E.2d at page 125. A rather detailed description of the proceedings below must be made to illuminate the basis of decision below and the turning point of our review of it here.

Mrs. Morgan, appellant in No. 463, was summoned before the Commission and interrogated mainly in regard to Communist Party activities. She appeared without counsel. To each question put she answered, 'I regret that I cannot answer your question under the Fifth Amendment of the Constitution, because to do so would give your Committee an opportunity to incriminate me,' or some more abbreviated form of words to the same effect. Such responses were given to virtually all the questions and in almost every case the Commission proceeded directly to ask its next question after receiving the response. In no case did the Commission direct that she answer its question. In one or two cases Commission members expressed surprise that she might consider an answer incriminating, and on such an occasion the Chairman asked her, 'Mrs. Morgan, are you aware of the fact that your failure to answer questions—some questions of this Commission, might also tend to put you in an embarrassing situation?' At another point, the Chairman positively informed her, 'I should like to advise you under the Fifth Amendment, you are permitted to refuse to answer questions that might tend to incriminate you. * * * But you are not permitted to refuse to answer questions simply for your own convenience.'

Raley, Stern, and Brown, appellants in No. 175, appeared before the Commission successively on another occasion, about six months later. They were interrogated about subversive activities in the labor movement. Raley answered some questions, but to most of them asserted the privilege against self-incrimination of the Federal and Ohio Constitutions. Most of his assertions of the privilege, including his initial ones, were not made the subject of comment or question by the Commission, the next question in the inquiry being put at once. On some few occasions, when Raley claimed the privilege, the Commission members indicated their doubt wheather any answer to a specific question put could be incriminating. On one occasion, the Commission asked Raley as to whether he recollected a certain interview. Raley claimed the privilege. The Chairman took the view that Raley was required to speak as to whether he recalled the interview, but assured him that the privilege existed as to the details of the interview: 'If you recall it, and we ask you as to your recollection, then you are privileged to claim your rights under the Constitution * * *.' This and one other occasion were the only ones in which the Commission even approached directing an answer to a question by Raley; but in one case the Chairman finally asked Raley to confer with his counsel to determine whether in his opinion the privilege applied, and in another Raley did so of his own accord; then, upon an affirmative reply by Raley's counsel, the Commission passed at once to the next question.'² Stern was the next person to appear at the inquiry. After giving his name, he claimed the privilege against self-incrimination at the very next, question, which called for his address. Commission counsel asked him, 'Is there something about the nature or character of the home in which you live that to admit you live there would make you subject to criminal prosecution?' On Stern's continued refusal to answer, the Chairman directed an answer to the question, which was refused. To most subseuent questions, Stern again claimed the privilege against self-incrimination, and on the great majority of questions, the Commission simply passed on to the next question. The Chairman and Stern worked out a short form of words whereby he would be understood to be claiming the priv- ilege as to a particular question.³ At one point Stern asked the Commission if the Commission had the right to go into his opinions and to require him to speak as to them. The Chairman informed him, 'Not if in your opinion by so doing, you might tend to incriminate yourself.' On a few occasions the Chairman requested that Stern answer a question, but except for the question as to his residence, the occasions were those in which Stern had neither given a direct answer nor invoked the privilege, and upon assertion of the privilege in these cases the request was not renewed.⁴ Brown then was subjected to inquiry. He claimed the privilege as to self-incrimination to most of the questions put to him. While the Chairman never told him in so many words (as he had told the other three appellants) that the privilege was available, Brown and the Chairman engaged in long colloquies in an attempt by the Chairman to clarify that by using a certain form of words Brown was claiming the privilege.⁵ The Chairman's con- cern is inexplicable on any other basis than that he deemed the privilege available at the inquiry, and his statements would tend to create such an impression in one appearing at the inquiry. When once he made it clear that he was claiming the privilege as to a question, Brown was never directed to answer. He was on a couple of occasions directed to answer a question when he was engaging in a colloquy with the Commission without either having answered it directly or having claimed the privilege; upon his claim of the privilege, the next question was at once put. ⁶

The Ohio immunity statute extends, so far as is here relevant, to any person appearing before a legislative committee and grants immunity from state prosecutions or penalties 'on account of a transaction, matter, or thing, concerning which he testifies'; the statute declares that the testimony given on such an appearance 'shall not be used as evidence in a criminal...