*1 446 & 294; Co., Machine C., Brauer Supp. Machine D. F. 836; Co., E. 50 N. 2d Co. Truck 383 Ill.
Supply
v. Parkhill
cases,
These
v.
Kan.
For the the judgment foregoing Henry Son, Matter Inc., Newark & C. Eastburn Peti Co., Inc., Eastburn, and Warren C. Construction Below, Appellants. tioners *2 27, 1959.)
(January J., Southerland, J., Bramhall, C. and Wolcott J. sitting. (of Morris, James,
Edmund D. Wil- Lyons Hitchens liams) for appellants. Craven, Alton
Joseph Donald F. Attorney-General, Tyhout, Chief State. Deputy Attorney-General, for the
Supreme Delaware, 46, Court of 1958. the State of No. Southerland, C. J.: below,
On August 1958 the C. East- petitioners Henry Inc., Inc., Son, Co., burn & Newark C. Construction and Warren Eastb.urn, commanding were served with duces tecum subpoenas their before in appearance General at his office on to contribu- Wilmington following day testify concerning 1956, 1957, tions to 1958. political and parties during years relat- subpoenas required production of all documents to such contributions. ing
Petitioners petitioned Superior Court to promptly quash (1) on the un- subpoenas grounds they constituted an (2) lawful and unwarranted invasion petitioners’ privacy; unreasonable; (3) they were and oppressive testimony and documents were valid sought any public purpose. court was had. The
Affidavits were filed and argument directed in petitioners to to appear response 26; but taken this September stayed the order if were appeal their Court here by that date. Petitioners and renew appeal, below. contentions ill-feeling
The case to have considerable appears generated between Notwith- petitioners and the State’s law officers. be- bitterness, this there little at issue standing really very tween facts set parties, as will be shown a review forth in the affidavits. sub-
On issuance of the August day preceding mat- poenas, Tybout, Deputy Attorney ter, made Warren Eastburn telephone appointment Mr. for that being “a evening Upon discuss confidential matter”. told of the information had Eastburn required, stated he matter, nothing to hide and was but willing to wished discuss no about it. publicity Tybout was pur- it not his explained pose Eastburn investigate operations company, or of his matter, but to matter. which investigate entirely different This he possible concerns criminal of a third prosecution person, explained to Eastburn. Eastburn said co- willing operate. Tybout they discussed “the size and extent According of Eastburn’s purpose” Tybout contribution length; suggested order to save Eastburn the inconvenience Eastburn submit a statement responding subpoena, written facts, and would Eastburn under oath. unnecessary put statement, Eastburn submit un- agreed to though he left certain whether he would consult attorney.
(cid:127) says Eastburn’s affidavit first he refused to answer ques- tions “the reasons and for certain contribut- concerning purposes tions”, but told that he he would be upon being subpoenaed to submit the statement. Eastburn further agreed says reflection decided that Attorney he was request General’s and unreasonable and constituted an invasion of privacy; concluded, from and that he also the discussion with Tybout “was subpoena from of the newspaper reports, purpose rea- General Attorney prompted by personal motives and officials Attorney son of General differences between the Democratic Delaware.” of the State of party had accordingly receive and
Tybout did not the statement served. subpoenas from East- a call Tybout On the received following morning would not appear him Eastburn attorney burn’s advising General unless he received a court order binding The secrecy; quash subpoenas. else would move to he filed. petition to was thereafter quash outset, disclose, said at the The set as we forth and little was between the very at issue that East- It would appear witness at the end of their interview. information; finally he the desired readily Tybout burn all gave had course, nevertheless Of balked it to reducing writing. exercised, quash thereafter which he right, attempt advance. fit to for whatever reasons he thought contentions, stated, are three. Eastburn’s as above second, records production The unreasonable, summarily rejected. may and oppressive corporations not individuals but only constitution protects seizures, unlimited subpoena and a unreasonable searches Henkle, 43, 26 Ct. 201 U. S. S. in is indefensible. Hale v. scope sufficiently documents Ed. But here the 50 L. 652. obviously large not so the number of the specified papers court The trial task. production oppressive as to make their produce to collect time gave petitioners ample papers required. contentions, taken third together,
The first and effect an abuse of process any in aid of of private papers, the production demanding between of a feud personal but in furtherance public purposes, political party, of his own General and the leaders *5 This out office. of his renomination arising attempt to secure true, course, is in the were Eastburn affidavit. Of if that alleged of the issuance of abuse gross would constitute subpoenas power petitioners’ and a wholly unwarranted invasion In re private affairs, quashed. and would be Hawkins, 113; Del.) 123 A. 2d (50 Rule Terry cf. C. Ann. Procedure, with Del.
Rules of Criminal agree And we a witness is that when suggestion counsel petitioners’ tecum, served motion subpoena duces timely quash, with to supported requires affidavit an abuse of process, charging to sufficient to the court disclose show that he is within duty. of his official acting scope Hawkins,
The case of re con- supra, to the nothing holds trary. That be- case involved a subpoena attempt quash cause it did not show on purpose investiga- its face the tion. The document awas record of a semi- sought corporate public matter. The witness held not entitled raise question relevancy and there was affirmative no abuse of power.
We also investi General’s agree Hawkins, (In re gatory broad powers, though supra), be equated Jury. those of the Grand Thus General has no It like power presentment. duty, not his is that of the Grand Jury, report to the court or generally the public statutory all matters upon public interest. His power of subpoena ordinarily should be used only when seeks to an indictment procure or to or defend prosecute litiga tion for the State. said,
But inves when all this power duty received, information tigate, upon possible violations credited, criminal law is undoubted. If the affidavit Tybout be, surely must he was in such an engaged investigation issued of it. furtherance subpoena
The affidavit does not crime disclose nature of the under nor person suspicion. the name of the *6 disclosure, indict- by
This is not followed understandable. Such a ment, public. of the eyes in the well might prejudice person the cases, It necessary may be that in certain it would be so, think we court here. If know more than is disclosed Attorney the has the require court full authority desirable, the disclose it to court and counsel. If the opposing (or much court so General’s affidavit may impound in- of it as is necessary) person for the protection vestigation. investigation this case the nature of dis matter so
reasons for it Eastburn. If the were disclosed to General’s closed one not within the of scope affi in his Eastburn could stated the official duties have dealing public press for reference to articles in the Except davit. the office with the over the renomination contest General, charge their to support adduce petitioners nothing of abuse of process. neces brief upon said in petitioners’
Much is in certain a of a cause as sity prerequisite, showing probable cases, production compelling to the issuance of subpoenas be course, cannot duces tecum a subpoena records. Of private the per criminal against used a establishing charge as basis Insel, Bowels v. papers sought. son whom private C. Cir., 91; States, D. U. S. App. v. United 93 3 148 F. 2d Nelson East- 14, here to 208 2d 505. But there no attempt F. making forbid the law does not burn with Delaware any crime. (somewhat assert Indeed, petitioners contributions. political of such course, the making this fact. Of inconsistently) very fact But if the matter. ordinarily contributions private aby committed of crime become material to the proof should be witness, either it cannot doubted third person, testify could be trial, compelled the Grand Jury fore or ma documents and to produce within his knowledge to facts searches unreasonable against issue. The prohibition terial the power interfere with intended to and seizures was tecum, produc- duces subpoena compel, through courts to issue. tian material evidence upon documentary trial Henkel, Hale v. 26 S. Ct. at supra, page U. S.
L. Ed. 652. un- any attempted
We cannot shows this record agree reasonable search and the petitioners’ papers. seizure of The must, however,
One statement he added. qualifying Tyhout affidavit, (if a statement at correctly) we recall General, argument Deputy suggest obtained Attorney General the information might later use from the subpoena in connection with the of some other and unrelated petitioners. petitioners offense take this intimation docu- testimony indicating *7 ments are for peti- the additional of sought purpose prosecuting tioners on offense now the some unknown and unrelated to present investigation.
If be this were so a would wholly question different presented. Although the does against self-crimination privilege Henkel, (Hale not apply supra; to a as corporation such v. 494, Oklahoma Press Pub. Co. 327 v. U. S. 66 S. Ct. Walling, 614), the L. a claim corporate Ed. officer is entitled to in privilege by of crime committed him respect and revealed books, the he may books. though required identify be to the Cir., United v. States Austin 229. 31 F. 2d Bagley Corporation, But it is premature any to consider such question now.
subpoena issued for proper purpose.
Petitioners that urge there is danger in entrusting the Attorney General the unrestricted the sub power to issue poena Counsel, duces tecum. clients, in his zeal for his is led the somewhat extravagant statement that is subpoena if this sustained Attorney law, the superior is and has in effect been clothed with the to issue an obnoxious power Writ of Assistance. The simple answer to all this that is has Attorney General no power himself to seize his If anything. is, not subpoena heeded he must to the exercise apply court. The A witness court. always
of to control power subject court must here, and the abuse always, as of may process, sum- issue, the person any rights upon safeguard pass moned; its order. if conditions necessary, by attaching Grand before proceedings
It said that whereas before secrecy, law proceedings Jury by the protected means that If this General are not so protected. one, restriction lack of legal because statute is unwise legislature— in the disclosure, must remedy sought be any event, cannot assume But, in the we any courts. office bar high powerful member elected to the pub impropriety commit gross General would not warrant in cases names licizing persons investigated seem petitioners in this case ing suggests, indictment. Nothing such any intends imply, General’s office action. it
Finally, argument suggested voluntarily all already has been given elsewhere, seeks, there and that information or has secured it infor is no reason his insistence Mr. Eastburn give mation oath. offered Tybout It will recalled in statement, testimony, a written sworn take lieu of sisted on only subsequent with the after compliance subpoena refusal true the written statement. If assume to be supply we petitioners’ assertion information been full given, has *8 follows that this rancorous a dispute ques is reduced to simple tion of a statement At under oath. If it is said that taking has, torney be be with ought may content what he replied with that equal willing force to be petitioner ought in put any has writing what he told already deputy. event, we cannot ignore under right of the officer prosecuting a statute to take sworn statement. Such a precaution investigation considerations, is often by dictated sound as such protection against lapse of memory testimony. or change It seems unlikely they case, that but we applicable to this
455 cannot deprive the statutory right General of his examine the'witness oath. under
It follows must Court the order the Superior affirmed.
Wolcott, (dissenting). Justice I of the disagree the result majority reached Court. The General’s appeal scope involves Hawkins, power 2505, under Del. C. in In which we held re § (50, Del.) A. Terry authority 2d him gave issue both aid subpoenas ad duces tecum in testificandum of his We investigation pointed law. suspected violations out, however, that case that does not him give statute poxver in is aid of His making general investigation. power confined to crime. We held in suspected Hawkins case the courts would shield witness gross of the timely abuse statutory power upon application to quash the process.
It follows, therefore, power of the the statute is not unrestrained. resistance timely When made, disclosing the Attorney burden of General has the sufficient action. satisfy the court of of his the propriety
I do not suggest that record in demonstrates appeal this a gross however, abuse I power. do sufficient suggest, has been shown hy Eastburn to burden place justification on the mind, my justification General. To such no shown in However, I it could this record. do not suggest not have I been think has been discharged. attempt no do so made.
The record shows took dispute no actual factual as to what place. A Deputy Attorney explain- General called on Eastburn ing a suspected crime was being investigated, inquired cor- contributions any political any made Eastburn or *9 freely
poration of which Eastburn answered he was an officer.1 of such questions all about and and extent purpose” “size contributions, but he desired stated that reasons personal of inter- the facts not be made Toward the end public. view, his threat reduce Eastburn subpoena, agreed General. answers to file them writing Later, concluded from the same Eastburn evening, current, discussion and from then certain stories newspaper contro- out of a motives General grew Party Democratic versy he was then with officials of the having over counsel Eastburn consulted renomination. thereupon statement. This determined to refuse the written supply proceeding followed. sub- to the hy
The made Eastburn showing opposition him, is that asked poena fully questions answered the has also but is refused under oath. It has those answers repeat Delaware law fact he had committed no crime under funds From political newspaper contributing party. it is that an quite struggle accounts acrimonious apparent Democratic then and the on between the going renomination, Chairman in the course State over the farmer’s sides, an which both by including bitter were made charges least, defeat funds to implication, party misuse of incumbent’s bid for renomination. are the circumstances in which foregoing inference
were issued. It that one permissive to me seems Eastburn, them made assumption, actually by by not an of him was questioning prompted motive law, purely personal violation of but suspected renominated of the desire This, of renomination. discredit official to his party opposed is, one —but course, the wrong only perhaps inference — corporations political parties or individuals 1Contributions to either any requirement illegal law the facts Nor in Delaware. is there public. be made *10 circumstances mind, from the my sufficiently permissive re- No General. require part rebuttal on the subpoenas statement the buttal except made for the crime. issued an of undisclosed were as part I the Admittedly, do not think this sufficient. thus comes matter
General had The all facts. possession To what oath. down under to his demand facts be given affidavit, hint State’s veiled in the purpose? be- the issuance of
would become if public knowledge purpose, came necessary, possible one inferentially supplies an which, majority I assume, would be characterized But, power. right require majority suggests abuse the statute. testimony may under oath questioned not be this, I cannot agree statutory powers with for all such subject ground restraint on the judicial 332 Pa. Shelley, In re unreasonable or action. arbitrary Cf. 2d A. 809. Absent of East- tendency some of a on the showing part burn to it —an testimony, unlikely or contin- change forget this case —it is gency difficult to conceive a useful purpose fact, reducing testimony sworn point statement. normal course would seem been to have presentment indictment Grand to the Jury of Eastburn summoning circumstances, before it. Under departure normal seem would aid require explanation some before the of a court is sought.
I would reverse order of the Superior Court and remand to permit instructions further affidavit to discharge the burden of demonstrating the propriety of the process.