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 practices among segments of the Kings County Bar, ordered an investigation into these alleged conditions by an Additional Special Term of the Supreme Court, Mr. Justice Arkwright presiding.
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, M. Anonymous v. Arkwright, 5 A.D.2d 790, 170 N.Y.S.2d 535, leave to appeal denied, 4N.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. 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 '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), 28 U.S.C.A. § 1257(2), then appealed to this Court, and we postponed further consideration of jurisdiction to a hearing on the merits. 358 U.S. 891, 79 S.Ct. 151, 3 L.Ed.2d 119.
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 M. Anonymous v. Arkwright, supra, and 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), 28 U.S.C.A. § 1257(2). Nevertheless, treating the appeal as a petition for writ of certiorari, we grant the writ. 28 U.S.C. § 2103, 28 U.S.C.A. § 2103.