Joint Legislative Committee of the Legislature v. Strain

268 So. 2d 629, 263 La. 488, 1972 La. LEXIS 5433

• Court: Supreme Court of Louisiana
• Decided: November 6, 1972
• Docket: 51567, 51605
• Status: Published

Opinions

SUMMERS, Justice.

By Senate Concurrent Resolution No. 31, as amended by Senate Concurrent Resolution No. 76, a Joint Legislative Committee was established to investigate organized crime in Louisiana as it relates to state and local government officials. The resolution charges the committee to “undertake an immediate comprehensive in-depth investigation, inquiry and hearings into all matters relating to the question of corrupt and/or criminal influences on the government of this state and/or its political subdivisions and the officials and employees of either.”

The resolution invested the committee with “the power and authority to hold public hearings, subpoena witnesses, administer oaths, compel the production of books, documents, and records, . . . Further, the resolution set forth, . . . that failure to comply with any order of the committee issued in accordance with or under authority of this Resolution, refusal to testify, or any act of disrespect of or disorderly or contemptuous behavior before the committee-shall constitute contempt of the committee and the committee, through its counsel, shall have the power and authority to institute proceedings in any court of competent jurisdiction for the punishment thereof in accordance with the penalties fixed by Article III, Section II (sic) ¹ of the Louisiana Constitution and, . that in addition to the power and authority of the committee to.punish for contempt as provided in Article III,. Section II (sic) of the Constitution, the committee also shall have the power and authority to invoke the provisions of R.S. 24:4 through R.S. 24:62 in order to subject persons - guilty of contempt of the committee to the penalties provided for therein.

The committee was required”" by the •resolution to submit its final report and recommendations to the legislature and the Governor not later than thirty days prior to the day on which the 1971 legislature convened in regular session.

During the month of May 1970 the committee began its investigations, holding a series of hearings at which many witnesses testified. At these hearings defendant Strain, an elected Representative to the legislature from Caddo Parish, testified before the committee relative to an alleged .attempt to unlawfully influence his vote «during the 1970 session of the legislature.

Subsequently, Strain made public statements that he possessed evidence, including tape recordings, relating to attempts to unlawfully influence his vote in the legislature not previously presented to the committee. Accordingly, on January 28, 1971, the committee issued a subpoena directed to Representative Strain ordering his appearance before the committee at a hearing to be held on February 4, 1971 in Baton Rouge and ordering him to bring with him certain tape recordings and transcripts or excerpts thereof.

Strain did not appear and did not produce the documents, papers or recordings called for. Whereupon the committee instituted this proceeding in the Nineteenth Judicial District Court in East Baton Rouge Parish. It is a rule to show cause why Strain should not be adjudged guilty of contempt of the committee and the legislature. The committee is represented in these proceedings by its counsel.

Strain filed a number of exceptions, all of which were overruled. The trial judge then held Strain in contempt of the committee and the legislature, sentencing him to jail for ten days, execution of the sentence to await' further orders of the Cortrt.

An appeal to the First Circuit was dismissed. The court reasoned it had no ap.pellate jurisdiction in the matter. La.App., 248 So.2d 105. Strain applied for certiorari to review the judgment of the Court of Appeal and^ made separate application to review the judgment of contempt rendered by the trial court. Both applications are granted. :

L

A holding that the Court of Appeal has appellate jurisdiction would ordinarily result in a remand to that court to consider the case on appeal. We will therefore first consider the correctness of the First Circuit's finding that it had no appellate jurisdiction in this contempt proceeding.

The contention that the Court of Appeal has appellate jurisdiction is based upon the argument that Article VII, Section 29, of the Louisiana Constitution grants to courts of appeal 'appellate jurisdiction over “all civil and probate matters of which ... the district courts throughout the state have exclusive original jurisdiction.”

The fault of this argument lies in its assumption that this contempt proceeding is “civil” within the contemplation of Article VII, Section 29, of the Constitution. Punishment for this offense under Article III, Section 11, of the Constitution is by imprisonment, not to exceed ten days. Under Section 4 of Title 24 of the Revised Statutes contempt of the legislature is. punishable by a fine and by imprisonment of not more than six months. Since the refusal to appear in answer to the subpoena is not a direct contempt of the committee it is a constructive contempt. Cf. La.Code Crim.Proc. art. 24. Like criminal contempt of court, it is properly triable by a rule to show cause alleging the facts constituting the contempt. Cf. La.Code Crim. Proc. art. 24. Trial for contempt is a summary proceeding before the judge alone.. La.Const. art. 1 § 9; art. 7 § 41; La.Code Crim.Proc. art. 24. These provisions relating to contempt of court do not in terms apply to tribunals other than courts. However, although the legislature is not a court, the procedure prescribed for contempt of court may be utilized for contempt of the legislature when it does not contravene express statutory or constitutional provisions. State ex rel. Milling v. Louisiana Public Service Commission, 154 La. 752, 98 So. 175 (1923). Thus the legislature prescribed, by adoption of the concurrent resolution, that “the Committee, through its counsel, shall have the power and authority to institute proceedings in any court of competent jurisdiction for the punishment thereof in accordance with the penalties fixed by Article III, Section II (sic 11) of the Louisiana Constitution.” In so doing the legislature determined to submit all such contempts of this committee to the judiciary for trial and punishment. These contempt proceedings are therefore properly triable by the courts under the procedure adopted here. Section 5 of Title 24 of the Revised Statutes specifically provides that when contempt of the legislature occurs “the district attorney shall institute and prosecute a criminal proceeding against the accused.”

As we pointed out in Louisiana State Board of Medical Examiners v. Bates, 258 La. 1049, 249 So.2d 127 (1971), the similarity between criminal contempt and civil contempt is striking. We recognized there, despite the similarity between civil and criminal contempt, that criminal contempt is a crime in the ordinary sense; it is a violation of law, a public wrong which is punishable by fine and imprisonment or both. In the words of MR. JUSTICE HOLMES: “If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech.”

Among other distinctions, criminal contempt differs from civil contempt in that criminal contempt involves a fixed punishment for the transgression, while civil contempt is merely a means of compelling compliance with lawful orders of the court. Louisiana State Board of Medical Examiners v. Bates, ibid.

In the federal system contempt of Congress is treated as a crime. By statute, when a person is summoned to appear before a congressional committee or to produce documents and fails to do so, and the failure is reported to either house in the form of a statement of fact, the presiding officer certifies the statement to the United States attorney, who brings the matter before the grand jury. From there, assuming a true bill is returned, it is handled like other true bills. 2 U.S.C. § 194.

The strong implication, the almost implicit inference, to be gained is that contempt is a criminal matter.

Aside from our finding that this contempt proceeding is criminal, or at least criminal in nature, and, therefore, not appealable to the courts of appeal,' for it is not a “civil” matter of which the district courts have original jurisdiction, Lá.Const. art. 7 § 29, the rule has been well-founded in our jurisprudence that a conviction'and sentence of contempt are not appealable in the absence of a constitutional or statutory provision for review. Hattier v. Martinez, 197 La. 121, 1 So.2d 51 (1941); State ex rel. Milling v. Louisiana Public Service Commission, 154 La. 752, 98 So. 175 (1923); City of Gretna v. Rossner, 154 La. 117, 97 So. 335 (1923); State ex rel. Dowling v. Ray, 150 La. 1030, 91 So. 443 (1922) and State ex rel. Farmer v. Judge Parish Court of Ouachita, 31 La.Ann. 116 (1879); Pearce v. Dozier, 181 So.2d 432 (La.App.1965). No statutory or constitutional provision for review of this contempt proceeding having been pointed out, and none having been discovered in our research, this contempt proceeding was not appealable and the Court of Appeal properly dismissed the appeal. 248 So.2d 105.

II.

Having concluded that the Court of Appeal has no jurisdiction, the merits of the trial court judgment must be reviewed under our supervisory jurisdiction.

Representative Strain filed an exception to the venue of the trial court, alleging that the contempt rule was improperly brought in East Baton Rouge, for he was a resident and domiciliary of Caddo Parish. To support this contention he relies upon the general rule of venue prescribed in Article 42 of the Code of Civil Procedure that an action against “an individual who is domiciled in the state shall be brought in the parish of his domicile.”

Section 6 of Title 24 of the Revised Statutes designates the venue for the trial of contempt of the legislature and provides that failure to appear or to produce papers or other evidence “shall be deemed to have been committed (1) in the parish, where the subpoena issued, (2) in the parish, where the offender was served with the subpoena or (3) in the parish where the-subpoena ordered the offender to give-testimony or to produce papers or other-evidence.”

Representative Strain was served inCaddo Parish with a subpoena issued in East Baton Rouge Parish ordering him to appear in East Baton Rouge Parish to give testimony before the committee there. The rule for contempt was therefore properly tried in East Baton Rouge Parish under (1) and (2) of Section 6 of Title 24 of the-Revised Statutes as an exception to the general rule of venue announced in Article-42 of the Code of Civil Procedure.

It is contended, however, that Section 6 of Title 24 of the Revised Statutes may not. serve as authority for venue in this contempt proceeding, for the facts constituting the contempt were not certified to the district attorney as Section 5 of Title 24 requires. See footnote 2, supra.

The certification procedure for prosecution of contempt proceedings prescribed", by Section 5 of Title 24 is not exclusive. It is an available procedure but not a sacramental one. Other procedure is prescribed for the trial of constructive contempt by Article 24 of the Code of Criminal Procedure. This latter procedure providing for a rule to show cause was followed here..

Moreover, having decided that this contempt proceeding was criminal in nature, the venue under Article 611 of the Code of Criminal Procedure is “in the parish where the offense has been committed.” In this instance the appearance was ordered in East Baton Rouge Parish and it was not complied with. East Baton Rouge Parish is therefore the proper venue under Article 611. This article is authority for the prosecution in East Baton Rouge Parish.

Assuming that the certification to the district attorney prescribed by Section 5 was not complied with, the prosecution is authorized under Articles 24 and 611 of the Code of Criminal Procedure and the provision of the resolution that “the Committee, through its counsel, shall have the power and authority to institute proceedings in any court of competent jurisdiction for the punishment” of those in contempt of the committee.

III.

It is asserted that the resolution authorized the institution of contempt proceedings under Article III, Section 11, of the constitution which applies to persons “not a member” of the legislature. Therefore, since Representative Strain is a member of the legislature, the authorization cannot apply to him. Instead, it is argued, the constitutional provision applicable to members of the legislature is Section 10 of Article III which authorizes “each house” to “punish its members for disorderly conduct and contempt.” Then, without citing authority to support his position, Strain argues that it can hardly be said that the legislature intended to delegate to the committee (seven of its members — three from the Senate and four from the House) the power to imprison members.

Not only does the resolution manifest the clear intention of the legislature to delegate this authority to the committee, we see no reason why it may not do so. To the contrary, it appears to be the most feasible manner of Carrying out the objects and purposes of the resolution.

Although the resolution authorized institution of contempt proceeding against persons “not a member” of the legislature in' accordance with Article III, Section 11, of the Constitution, the resolution also authorized the committee to invoke the provisions of Section 4 of Title 24 of the Revised Statutes. That section permits contempt proceedings against “any person” and Article III, Section 10, of the Constitution permits the legislature to punish “its members” for contempt. Hence the committee’s ’authority to punish for contempt extends to both members and nonmembers alike.

Nor is it a violation of the principle of separation of powers expressed in Article II, Section 1, of the Constitution for thé legislature to authorize the trial of contempt of the legislature in the courts •of law. This is not a delegation of legislative power. It is more properly a provision for asserting legislative power by imposing the implementing authority upon the judiciary. It is no more an improper delegation of legislative power than it is to require by legislation the trial in the ■courts of crimes against the State.

IV.

Representative Strain’s brief asserts that the minutes of the committee proceedings fail to reveal that the committee voted to institute this contempt prosecution and, therefore, the entire proceeding is unauthorized and invalid. The committee’s brief replies that the record of the meeting of the committee held on February 4, 1971 clearly reflects that a motion to institute contempt proceedings was made, ■seconded and adopted unanimously.

The record before us does not contain a •copy of the committee minutes. There is, therefore, no evidence to support Strain’s ■contention, and we must find it unsupport•ed by the record.

V.

In a motion for summary judgment Representative Strain alleges that on the ■date (February 4, 1971) when he was ordered to appear before the committee in the city of Baton Rouge, he, as chairman, was ■ conducting a hearing of the Statewide Health Service Committee, a committee established by House Concurrent Resolution No. 95 of the Extraordinary Session of 1968. For this reason, he argues, he could not be punished for contempt. Without citing authority for his position, he contends that members of the legislature are exempt, that is, not subject to the power of subpoena or any other judicial process, during terms of the legislature or while in attendance at duly constituted legislative committee hearings.

While Section 1 of Title 24 of the Revised Statutes stays civil proceedings against members of the legislature “during their attendance at the sessions of their respective houses,” it grants no such exemption from subpoena or attendance at a duly constituted legislative committee hearing.

Representative Strain contends that the committee was without a cause of action in this prosecution, for the resolution establishing the committee is broader than its title. In this respect therefore the argument is that the resolution violates the constitutional requirement that “Every statute enacted by the Legislature shall embrace but one object, and shall have, a title indicative of its object.” La.Const. art. 3 § 16.

The title of the resolution sets.forth that the resolution is adopted “To establish a Joint Legislative Committee to investigate organized crime in Louisiana as it relates to state and local government officials . . . . ”, whereas the body of the act authorizes the committee to undertake an investigation into “corrupt and/or criminal influences on the government ... or its officials.” Strain’s argument, as we understand it, is that he was subpoenaed to appear before the committee to testify concerning his public statements that improper influence was sought to be applied by certain persons to affect his vote on legislation. Therefore, this conduct, authorized to be investigated by the body of the resolution is broader than the title which only, refers to investigation of organized crime.

This contention is without merit. Article V, Section 17, of the Constitution specifically declares that resolutions of the legislature “may. empower legislative committees to administer oaths, to send for persons and .'papers, and generally make legislative investigations effective.” We know of no requirement that resolutions under this authority must adhere to the Title Body Clause of the Constitution. The Title Body Clause deals with “every statute” and a concurrent resolution does not fall within the meaning of that constitutional provision. Notwithstanding this conclusion, we are of the opinion that authority tp investigate “organized crime” is broad enough to include corrupt influencing of government officials — a crime. La. R.S. 14:120. The sole question is who is exerting the improper influence. It was-.proper for the committee to investigate to determine whether the improper influence was being exerted by “organized crime.”

VII.

The contention is made that the committee mistakenly relied upon reports of the-news media as a basis for committee inquiry into the public statements of Representative Strain, without making an independent investigation to determine whether the facts warranted the issuance of the subpoena. This procedure, it is claimed, has a chilling effect upon Strain’s freedom of expression guaranteed to citizens by the First Amendment to the United States Constitution. Reliance is placed upon the holding in Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), to support this position.

In effect, the argument proceeds, the action of the committee places all persons on notice that they are subject to repeated subpoenas ■ to testify and appear and prove all charges they make against public officials. In substance, it is asserted the procedure has the effect of suppressing criticism of public officials, and, when applied to an elected official, the procedure hinders the performance of his “constitutional duty” to call to the public’s attention all information in his possession relating to improper conduct of public officials.

The Dombrowski Case is not authority for Strain’s position.³ There a statute imposed criminal penalties for subversive activities. Plaintiffs, having been indicted under the statute, sought, in federal court, a judgment declaring the broad sweep of the statute to be unconstitutional. An injunction was also prayed for to prevent its enforcement. It was alleged there that failure to enjoin the prosecution would result in a substantial loss or impairment of freedom of expression if Dombrowski and the others threatened with prosecution must await the state court’s disposition and ultimate review by the United States Supreme Court of any adverse determination. In remanding the case to the trial court, the United States Supreme Court declared that the statute making it a felony to participate in the formation or management or to contribute to the support of “any subversive organization,” as defined in the statute, was invalid on the ground of vagueness.

Clearly this holding has no bearing upon Strain’s refusal to obey the committee subpoena. We fail to see how an order to testify before the committee concerning statements Strain made publicly imputing improper influences to government officials is an impairment of freedom of expression. This subpoena was not the result of 'an indiscriminate dragnet procedure. Strain, by his public statements, furnished probable cause for the committee to believe that he possessed information which was pertinent to the purposes of the investigation for which the committee was created.

Often those who are possessed of the most vital infoi'mation relating to investigations preliminary to legislation are not always willing to testify. For this reason, most states, inclxxding Louisiana, have enacted statixtes investing legislative committees with subpoena and contempt powers. These statixtes are necessary to effectuate the investigative power and they are within expressed constitutional authority. La.Const, art. 5 § 17; La.R.S. 24:2-6.

It is unquestionably the duty of citizens, especially public officials, to cooperate in a legislative investigation into organized crime and improper influencing of government officials. In fulfilling this duty it is their unremitting obligation to respond to subpoenas, to promote, uphold and respect the dignity of the legislature and its committees and to testify fully with respect to matters within the province of proper investigation. This, of course, assumes that the constitutional rights of witnesses will be respected by the legislature as they are in courts of justice. Witnesses cannot be compelled to give evidence against themselves. They cannot be subjected to unreasonable search and seizure, nor can First Amendment freedoms of speech be abridged. Cf. Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273 (1957).

For the reasons assigned, the judgment of the Court of Appeal, First Circuit, is affirmed, and the judgment of the Nineteenth Judicial District Court holding Representative Strain in contempt of the Committee is likewise affirmed.

SANDERS, J., dissents in part and concurs in part with written reasons. BARHAM, J., dissents. TATE, J., dissents and assigns written reasons. DIXON, J., dissents in part and concurs in part with reasons.

1 . The reference to Article III, Section 2, of the constitution is without doubt a misprint. That section pertains to apportionment of the legislature; whereas, Section 11 of that same article was obviously intended, for it provides:

“Either house, during the session, may punish by imprisonment any person not a member who shall have been guilty of disrespect, or disorderly or contemptuous behavior; but such imprisonment shall not exceed ten days for each offense.”

2 . La.R.S. 24:4 provides:

“A. Whenever the legislature or either house of the legislature, or whenever any committee of either house or any joint committee of both houses or any sub-committee of any such committee, which committee, joint committee or sub-committee has been specifically and expressly granted the subpoena power, lias summoned any person as a witness to give testimony or to produce papers or other evidence upon any matter under inquiry before such house, committee, joint committee or sub-committee, such person shall be guilty of contempt of the legislature if he or she

“(1) willfully defaults by failing to appear or to produce papers or other evidence, as ordered, or

“(2) having appeared, refuses to take the oath or affirmation of a witness, or

“(3) having appeared,. refuses to answer any question pertinent to the question under inquiry.

“B. Whoever is found guilty of contempt of the legislature under the provisions of this section shall be punished by a fine of not more than one thousand dollars or by imprisonment for not more than six months, or both.

“C. The provisions of R.S. 24:4 through R.S. 24:6 are hereby declared to be supplemental to the powers of the legislature and of the senate and of the house of representatives to punish for contempt, and the legislature hereby reserves to itself and to the senate and to the house of representatives all inherent and all constitutional powers to punish for contempt.”

'La.R.S. 24:5 provides:

“Whenever a statement of facts alleged to constitute contempt under R.S. 24:4 is reported to either house of the legislature while the legislature is in session, or whenever, while the legislature is not in session, such statement is reported to and filed with the president of the senate or the speaker of the house of representatives, said president or speaker, as the case may be, shall certify the statement to the district attorney of a district where venue lies, as provided in the general laws governing venue or as provided by R.S. 24:6 in the case of offenses defined in R.S. 24:4(A), and the district attorney shall institute and prosecute a criminal proceeding against the accused for contempt of the legislature under the provisions of R.S. 24:4.”

La.R.S. 24 :6 provides :

“Any other provisions of law to the contrary notwithstanding, any offense defined by the provisions of R.S. 24:4 (A) shall be deemed to have been committed (1) in the parish where the subpoena issued, (2) in the parish where the offender was served with the subpoena or (3) in the parish where the subpoena ordered the offender to give testimony or to produce papers or other evidence, and the trial of the offender for such offense may take place in any of such parishes.” • •

3 . Maraist, Federal Injunctive Relief Against State Court Proceedings: The Significance of Dombrowski, 48 Tex.D. Rev. 585 (1970).