Slagle v. Ohio/Opinion of the Court

by Charles Evans Whittaker

United States Supreme Court

366 U.S. 259

Slagle  v.  Ohio

 Argued: Feb. 27 and 28, 1961. --- Decided: May 15, 1961

Pursuing its statutory powers and duties to investigate subversive activities in Ohio, ^[1] the Ohio Un-American Activities Commission scheduled a hearing to commence at the Stark County Courthouse on the morning of October 21, 1953, and subpoenaed these five appellants to appear and testify before it at that time and place. Each appeared with counsel, was sworn and examined. Though having both constructive and actual knowledge of Ohio's immunity statute, ^[2] each objected to most of the questions propounded ^[3] on the ground that an answer would compel him to be a witness against himself, in violation of the Ohio Constitution and of the Fifth Amendment to the United States Constitution. ^[4] Appellants were not, in most instances, directed to answer, but in a few instances some of them (Perry, Cooper and Mladajan) were directed to answer the question, yet flatly refused to do so. ^[5]

Acting pursuant to Ohio Rev.Code § 103.35, ^[6] the members of the Commission who sat at the hearing authorized the chairman to cause contempt proceedings to be initiated against appellants under Ohio Rev.Code §§ 2705.02 to 2705.09, ^[7] and on December 24, 1953, each appellant was separately indicted in the court of common pleas of Stark County on 10 counts-each count charging willful failure, in violation of § 2705.02, to answer a question propounded by the Commission. Upon a joint trial to the court, each appellant was convicted and sentenced on some of the counts. ^[8] On consolidated appeals, the Stark County Court of Appeals affirmed, ^[9] the Supreme Court of Ohio, finding no debatable constitutional question presented, dismissed appellants' appeals to that court, 170 Ohio St. 216, 163 N.E.2d 177, and, on appeals to this Court, we postponed further consideration of our jurisdiction to the hearing on the merits. 364 U.S. 811, 81 S.Ct. 44, 5 L.Ed.2d 40.

Appellants simply assert that we have jurisdiction over these appeals under 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2). Despite the plain import of our postponing order, see Rule 16, par. 4, of this Court, 28 U.S.C.A., they have entirely failed to show that any 'timely insistence (was made) in the state courts that a state statute, as applied, is repugnant to the federal Constitution, treaties or laws.' Charleston Federal Savings & Loan Ass'n v. Alderson, 324 U.S. 182, 185, 65 S.Ct. 624, 627, 89 L.Ed. 857. Accordingly, the appeals are dismissed. See Raley v. State of Ohio, 360 U.S. 423, 435, 79 S.Ct. 1257, 1264, 3 L.Ed.2d 1344. But since various federal constitutional claims were made below and are renewed here, 28 U.S.C. § 1257(3), 28 U.S.C.A. § 1257(3), we consider the appeal papers as petitions for certiorari and, in view of the public importance of at least one of the questions presented, grant certiorari, 28 U.S.C. § 2103, 28 U.S.C.A. § 2103.

Appellants' principal contention here is that the judgments, finding them guilty of willful refusal to answer the Commission's questions although the Commission did not overrule their timely objections to the questions nor direct that they be answered, but appeared to sustain, or at least to acquiesce in, those objections, deprive appellants of due process in violation of the Fourteenth Amendment. In the peculiar factual situation presented, and limited to the questions which they were not directed to answer, we have concluded that appellants are right in this contention.

Surely traditional notions of fair play contemplate that a person summoned to testify before any adjudicatory or investigatory body, including a legislative investigatory committee, may object to any question put to him upon any available ground, however tenuous. And the Ohio Commission, several times and in many ways, clearly gave appellants to understand that such was their right at this hearing. Exercising that right, if not actually accepting the Commission's invitation, appellants, except for a few preliminary questions, objected to most of the questions put to them, principally on the ground of the Fifth Amendment (but see note 4). With important exceptions to be noted, instead of overruling the objection or in any way directing the witness to answer the question, the Commission gave every indication that it sustained, or at least acquiesced in, the objection by immediately passing on to the next question. That process was scores of times repeated.

But, and lending emphasis to its normal acquiescence in the objections, the Commission, at times, adopted another and very different procedure. When the Commission's counsel advised the Commission that he considered a particular question to be competent and important and asked that the witness be directed to answer it, the chairman, in each such instance, directed the witness to answer the question. And in every such instance care was taken, either by the Commission's counsel or its chairman, to have the record show that at least a quorum of the Commission were then present and sitting. In that manner, as more fully shown in note 5, Slagle was directed to answer one question, and thereupon promptly answered it, but he was not directed to answer any other question; Bohus was not directed to answer any question; Perry was thus directed to answer the two questions that were made the subjects of Counts 1 and 2 of her indictment (she was acquitted on Count 2), but was not directed to answer the questions upon which the other eight counts of her indictment were based; Cooper was thus directed to answer the four questions that were made the subjects of Counts 1, 2, 5 and 6 of her indictment, but was not directed to answer the questions upon which the other six counts of her indictment were based; and Mladajan was thus directed to answer the question that was made the subject of Count 6 of her indictment, but was not directed to answer the questions upon which the other nine counts of her indictment were based.

No particular form of words is necessary either to sustain or overrule an objection and thus either to excuse or require an answer to the question. All that is necessary is that the hearing tribunal make plain its disposition of the objection and whether or not an answer to the question is expected and required. If, as frequently happens, after an objection has been made, the hearing officer, addressing the examiner, merely says, 'Pass on to your next question,' it would indeed be plain that he had, at least temporarily, sustained or acquiesced in the objection and was not requiring an answer to be given. That is almost precisely what happened here. Though, upon these objections being made, the Commission did not formally direct its counsel to pass on to his next question, either the counsel or some member of the Commission did in fact immediately pass on to the next question. Those objections must therefore be regarded as sustained or acquiesced in by the Commission. To hold that these witnesses, in these circumstances, willfully and contumaciously refused to answer those questions would deeply offend traditional notions of fair play and deprive them of due process.

That 'a clear disposition of the witness' objection is a prerequisite to prosecution for contempt is supported by long-standing tradition here and in other English-speaking nations. In this country the tradition has been uniformly recognized in the procedure of both state and federal courts.' Quinn v. United States, 349 U.S. 155, 167-168, 75 S.Ct. 668, 675 676, 99 L.Ed. 964, and cases cited. See also Emspak v. United States, 349 U.S. 190, 202, 75 S.Ct. 687, 694, 99 L.Ed. 997; Bart v. United States, 349 U.S. 219, 223, 75 S.Ct. 712, 714, 99 L.Ed. 1016. 'Because of the (Commission's) consistent failure to advise (appellants) of (its) position as to (their) objections, (appellants were) left to speculate about the risk of possible prosecution for contempt; (they were) not given a clear choice between standing on (their) objection(s) and compliance with a committee ruling.' Bart v. United States, supra, 349 U.S. at page 223, 75 S.Ct. at page 714.

In these circumstances, to hold that these witnesses willfully and contumaciously refused to answer the questions to which they objected but which they were not directed to answer would deprive them of due process in violation of the Fourteenth Amendment.

As to appellants' remaining contentions, including, (1) that because the Ohio immunity statute (see note 2) does not afford immunity from federal prosecution, they could not lawfully be compelled to answer questions over their Fifth Amendment objections to them, (2) that the questions which they refused to answer were not pertinent to the inquiry, and (3) that the Commission's investigation was without legislative purpose, the Court is equally divided.

It follows that the judgments against Slagle and Bohus must be reversed; that the judgment against Perry must be reversed as to Counts 3, 4, 5, 7, 8 and 9, and affirmed, by an equally divided Court, as to Count 1; that the judgment against Cooper must be reversed as to Counts 3, 4, 7, 8 and 9, and affirmed, by an equally divided Court, as to Counts 1, 2, 5 and 6; and that the judgment against Mladajan must be reversed as to Counts 1, 2, 3, 4, 5, 7, 8 and 10, and affirmed, by an equally divided Court, as to Count 6.

Appeals dismissed and certiorari granted.

On writs of certiorari, judgments reversed as to Slage and Bohus; judgments reversed in part and affirmed, by an equally divided Court, in part as to Perry, Cooper and Mladajan.

Mr. Justice FRANKFURTER took no part in the consideration or decision of these cases.

Notes

1. Ohio Rev.Code, § 103.34 provides:
2. Ohio Rev.Code § 101.44 provides:
3. Except for a few preliminary questions, each appellant objected to and declined to answer most of the questions propounded-Slagle, 97 of the next 129 questions; Bohus, 97 of the next 99 questions; Perry, 110 of the next 118 questions; Cooper, 76 of the next 103 questions; and Mladajan, 88 of the next 123 questions.
4. In addition to various state grounds, each appellant based his objections to the questions on the Fifth Amendment, but Slagle also invoked the First and Fourteenth Amendments, Perry also invoked the First, Fourth, Ninth and Fourteenth Amendments, and appellant Cooper also invoked the Fourth and Ninth Amendments, to the United States Constitution.
5. Appellant Slagle, too, was directed by the chairman to answer one question, but he thereupon answered it. He was not directed to answer any other question.
6. Ohio Rev.Code, § 103.35 provides, in relevant part, that '(i)n case of * * * the refusal of any person * * * to testify to any matters regarding which he may be lawfully interrogated * * * the chairman may be authorized by a majority of the members sitting at the time the alleged offense is committed, to cause a proceeding for contempt to be filed and prosecuted in the court of common pleas of any county under sections 2705.03 to 2705.09, inclusive, of the Revised Code. * * *'
7. Ohio Rev.Code § 2705.02 provides, in pertinent part:
8. Appellant Slagle was convicted on Counts 3 to 10, inclusive; Bohus was convicted on Counts 1, 2, 3, 4, 5, 7, 8 and 9; Perry was convicted on Counts 1, 3, 4, 5, 7, 8 and 9; Cooper was convicted on Counts 1 to 9, inclusive; Mladajan was convicted on Counts 1 to 8, inclusive, and 10. Each was sentenced to imprisonment for 10 days on each count-the sentences on all counts, in each instance, to run concurrently-and was fined $500 on each count, but the fines, other than the first one, were remitted in each instance.
9. The opinion of the Stark County Court of Appeals is not reported.