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In re Application of Waterfront Commission

Decided: May 9, 1960.


For affirmance -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Proctor, J.


This is an appeal (1) from a judgment of the Superior Court, Law Division, dated October 9, 1959, which held the appellant Anthony Marchitto guilty of civil contempt for his failure to appear and testify before the Waterfront Commission of New York Harbor, in response to a subpoena served upon him by the Commission, and (2) from an order of the same court, dated the same day, denying Marchitto's motion to quash the subpoena. We certified the cause while it was pending in the Appellate Division.

The Commission's subpoena was served personally upon the appellant on July 1, 1959. It commanded him

"to appear before the Waterfront Commission of New York Harbor as a witness and to testify in the matter of an investigation being conducted under Article IV of the Waterfront Commission Compact, at the offices of the Waterfront Commission of New York Harbor, 15 Park Row, 21st Floor, New York 38, New York at 2:30 o'clock in the afternoon of the 6th day of July 1959, and at any adjourned date thereof."

The return day of the subpoena was adjourned by consent. On the later return day Marchitto did not appear. His counsel appeared, however, and requested information as to the specific nature of the investigation. He was told that the information would not be given until Marchitto responded to the subpoena.

On July 27, 1959, counsel for Marchitto informed the Commission by letter that he would contest the legality of the subpoena on the ground that the Commission lacked jurisdiction of the subject matter of its proposed investigation. On August 28, the Commission obtained an order to show cause why Marchitto should not be held in contempt.

In the Commission's motion for the order to show cause, verified by affidavits, it was stated:

"4. The Commission received information that a charter for Local 1823 of the ILA had been granted by the ILA to certain notorious hoodlums and criminals to organize white collar workers in industrial plants in New Jersey and Pennsylvania. The Commission also received information that the organizer for Local 1823 was one Frank Campbell, a notorious waterfront hoodlum and criminal who had been denied registration by the Commission to work on the waterfront as a longshoreman. (Under the Waterfront Commission Act, longshoremen and others in the Port of New York district must be licensed or registered by the Commission.) Campbell's extensive criminal record is annexed hereto as 'Exhibit A.' In addition, the Commission received information that one Anthony Marchitto was an officer of Local 1823, and also an associate of the notorious Frank Campbell.

5. Consequently, in order to ascertain the facts concerning the issuance of charters by the ILA to criminal elements and to further ascertain what influence and control such criminal elements have in the ILA, the Commission duly instituted an investigation of these matters."

Marchitto appeared with his counsel at the hearing of the order to show cause. Counsel for the Commission restated the purpose of the investigation and the statutory power of the Commission to conduct it. Marchitto's counsel conceded that his client had been properly served, but argued that the Commission had to prove its jurisdiction of the subject matter before the witness could be compelled to testify. He contended the moving papers failed in this requirement because they referred only to the efforts of Local 1823 to organize white collar workers, who had no connection with the waterfront, and therefore the investigation was beyond the jurisdiction of the Commission. He also requested permission to "cross-examine the persons who were going to present the proofs to the Court concerning the basis of the jurisdiction of the Commission in this particular matter."

At the conclusion of the argument, the trial court held that the Commission had the power to issue the subpoena and adjudged Marchitto to be in civil contempt. The court

withheld punishment, however, and gave Marchitto the opportunity to purge himself of the contempt by appearing before the Commission. It refused to direct Marchitto to testify, saying: "If he fails to testify he will, of course, have to give reasons for not testifying and that must be litigated in a different forum." It is apparent from the record that the trial judge's refusal to order Marchitto to testify was due to his understandable lack of knowledge of the questions to be asked, and his recognition of the witness' right to object to specific questions.

Marchitto appeared before the Commission on September 25, 1959, but he refused to be sworn until he was fully informed of the subject matter of the investigation. Marchitto's counsel stated, "I want to hear what the preliminary statement is before I have my client do anything," and he contended that the question of the Commission's jurisdiction had not been decided by the court. He conceded, however, that the papers filed in court "in and of themselves apprise me of what is generally the subject matter." Counsel for the Commission told Marchitto that after being sworn he would be informed of the subject matter of the investigation and the scope of the examination, but that such information had nothing to do with his being sworn. After Marchitto's repeated refusals to be sworn, the hearing was adjourned.

The Commission then moved for a judgment punishing Marchitto for contempt. At the hearing before the trial court on October 2, 1959, Marchitto again contended that before the Commission could interrogate him, it would first have to establish its jurisdiction of the subject matter. The trial court held that the Commission had "the legal right and jurisdiction to issue the subpoena" and again adjudged Marchitto to be in civil contempt, but gave him another opportunity to purge himself by appearing before the Commission and being sworn. After conferring with his client, counsel for Marchitto stated that his client did not choose to take advantage of the opportunity offered him. Thereupon,

upon, the court renewed its determination of guilt and sentenced Marchitto to 30 days in the Hudson County Jail, but stayed judgment pending appeal on $2,500 bail.

On the same day, Marchitto served the Commission with a motion to quash the subpoena on the grounds (a) that it failed to establish "subject matter jurisdiction" and to inform Marchitto with sufficient clarity of the nature of the investigation, and (b) that the Commission did not comply with Marchitto's subsequent request to reveal the nature of the investigation. Shortly thereafter, the Commission moved to correct the sentence imposed by the court on October 2, 1959.

On October 9, 1959, the trial court took up both motions. It denied Marchitto's motion to quash the subpoena, revoked the 30-day sentence previously imposed, and instead fined Marchitto $50 and directed that he be committed to jail until he obeyed the subpoena and paid the fine, or until further order of the ...

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