STATE of Wisconsin, Plaintiff-Respondent, v. Sharon BENO, Defendant-Appellant, Speaker of the Assembly Ed JACKAMONIS, and Richard White, administrative assistant, Intervening Respondents-Petitioners.
No. 82-387
Supreme Court of Wisconsin
Argued October 4, 1983. - Decided January 4, 1984.
116 Wis. 2d 122 | 341 N.W.2d 668
For the plaintiff-respondent the cause was argued by Alan Lee, assistant attorney general, with Bronson C. La Follette, attorney general, on the briefs.
For the defendant-appellant there was a brief by Charles W. Giesen, Morris D. Berman and Eisenberg, Giesen, Ewers & Hayes, S.C., Madison, and oral argument by Charles W. Giesen.
SHIRLEY S. ABRAHAMSON, J. This is a review of a published decision of the court of appeals, State v. Beno, 110 Wis. 2d 40, 327 N.W.2d 712 (Ct. App. 1982) (Beno II), vacating a writ of attachment issued by the circuit court for Dane county, Angela B. Bartell, circuit
The issue on review is whether the circuit court erred in quashing defendant‘s subpoena directed to Richard White, an administrative assistant to then Assembly Speaker Ed Jackamonis, on grounds of legislative privilege. Holding that White had no legislative privilege,1 the court of appeals reversed the order of the circuit court quashing the subpoena to White, vacated the writ of attachment against the defendant, and remanded the case for further discovery. We reverse the decision of the court of appeals and affirm the orders of the circuit court.
I.
The facts of the case are not disputed and are set forth in two previously published court of appeals decisions: State v. Beno, 99 Wis. 2d 77, 298 N.W.2d 405 (Ct. App. 1980) (Beno I), and State v. Beno, 110 Wis. 2d 40, 327 N.W.2d 712 (Ct. App. 1982) (Beno II).
Briefly stated, the significant facts on this appeal are as follows: In May 1977 the Wisconsin Department of Revenue began an audit of the tax returns of Delbert Beno, a lobbyist during the Wisconsin state legislative session. The defendant, Sharon Beno, is the wife of Delbert Beno.2 The audit was referred to the Intelligence
Planning to use information to be derived from White as evidence of the department‘s institutional bad faith, the defendant‘s attorneys subpoenaed White to appear for a deposition. White and Speaker Jackamonis appeared specially and moved the circuit court to quash the subpoena issued to White claiming a legislative privilege under
The affidavits of the speaker and White filed with the circuit court state that Ed Jackamonis, as Co-chair of the Joint Committee on Legislative Organization (JCLO), Chairperson of the Assembly Organization, and Speaker
The state moved the circuit court to quash the defendant‘s subpoena to White on the ground that it exceeded the scope of permissible discovery under Beno I. The circuit court held an evidentiary hearing; the testimony viewed most favorably to the defendant indicated that White may have said that Department of Revenue agents told him that Delbert Beno was about to be indicted on tаx fraud.3
On December 28, the circuit court, ruling from the bench, reaffirmed its earlier decision of August 27, 1981, holding that White was protected by a constitutional legislative privilege and that the privilege had not been waived. The circuit court also held that the department had not abandoned a civil tax purpose and granted the state‘s request for a writ of attachment against the defendant who continued to refuse to produce the subpoenaed documents. As we stated previously, in Beno II the court of appeals held that White had no legislative
II.
The department contends that this court need not reach the issue of legislative privilege since the testimony sought from White exceeds the permissible scope of discovery.
In Beno I, the court of appeals analogized the department to the Internal Revenue Service and adoptеd the United States Supreme Court‘s reasoning in United States v. LaSalle National Bank, 437 U.S. 298 (1978), as to the department‘s subpoena powers during a tax investigation. In LaSalle the Court held that the Internal Revenue Service must issue a subpoena before the Service recommends a criminal prosecution and that the Service must use the subpoena authority in good faith pursuit of authorized purposes. The taxpayer may resist a subpoena upon meeting the “heavy” burdens of demonstrating institutional bad faith, 437 U.S. at 316. Particularly, the taxpayer may demonstrate “institutional bad faith” by proving that the “institutional posture” of the agency was to delay a recommendation of criminal prosecution in order to gather evidence for the department of justice through the use of an administrative subpoena. 437 U.S. at 317.
The federal circuit courts of appeal have had difficulty applying the LaSalle rule and have differed over the extent of discovery аllowed the taxpayer challenging the subpoena.4 If the scope of discovery is too restrictive,
In Beno I the court of appeals applied the guidelines for discovery set forth in United States v. Genser, 595 F.2d 146 (3d Cir. 1979), and remanded the case to the circuit court for further discovery. Neither party sought or seeks review of Beno I. Consequently the sole issue before us on this review with regard to discovery is the circuit court‘s and court of appeals’ application of the court of appeals’ Beno I decision.
Under Genser a court considering requests for discovery must determine whether the information sought is relevant to the issue in contention and should limit discovery to issues relevant to the validity of the subpoena and the guarantees of LaSalle. See United States v. Genser, 595 F.2d 146, 152 (3d Cir. 1979), cert. denied 444 U.S. 928 (1979); United States v. Security Bank and Trust Co., 661 F.2d 847, 850 (10th Cir. 1981). The court weighs the relevancy against the extent to which disclosure might delay the civil investigation or jeopardize a criminal investigation. The circuit court, apparently following Beno I, concluded that the defendant‘s request for discovery was relevant to uncovering the institutional posture of the department. The court of appeals in
The defendant has established that White‘s testimony could be relevant in proving institutional bad faith. If White were to testify that persons from the department of revenue had told him that Beno was about to be indicted on tax fraud, this would be some evidence of the “institutional posture” of the agency.5 We reject the state‘s argument that the absence of proof in the department‘s records of an intent to abandon civil tax collection precludes any further inquiry. The defendant should be entitled to show that despite the department‘s records other evidence shows that there was a decision by the department to delay a recommendation of criminal prosecution in order to gather evidence for prosecution.
To prove relevancy the defendant need not describe each link in a chain of events which leads from White‘s alleged statement to the department‘s institutional bad faith. To adopt this view would be to impose “‘an unreasonable circular burden on the taxpayer: the facts that he must show to obtain discovery are only available through discovery.’ Notе, The Institutional Bad Faith
White‘s testimony falls within the scope of discovery articulated in Genser. The defendant is entitled “at a minimum” to basic information concerning contacts between the department and the department of justice. 595 F.2d at 152. We read the phrase “at a minimum” to permit the exercise of discretion by the trial court, consistent with the letter and spirit of Genser. The federal Rules of Civil Procedure (Rule 81) allow the trial court to modify the rules of discovery in an IRS summons enforcement proceeding to effectuate the purposes of the proceeding. 7 (Pt 2) Moore‘s Federal Practice, para. 81.06 (1983). White‘s alleged statement that Beno was about to be indicted on tax fraud indicated that White might lead to evidence that the department had made a decision to recommend criminal prosecution to the attorney general. Under these circumstances, the defendant should be entitled to seek further information regarding White‘s statement, provided that White is not entitled to legislative privilege.
On the basis of Beno I, Beno II, and this record we are not persuaded by the department‘s argument that the discovery sought is beyond the scope of discovery articulated in Genser.
III.
The essence of White‘s defense to the subpoena is that the speaker (and therefore White) is privileged from tes-
“Members of the legislature shall in all cases, except treason, felony and breach of the peace, be privileged from arrest; nor shall they be subject to any civil process, during the session of the legislature, nor for fifteen days next before the commencement and after the termination of each session.”
“No member of the legislature shall be liable in any civil action, or criminal prosecution whatever, for words spoken in debate.”
In interpreting
“The Senators and representatives . . . shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any speech or dеbate in either house, they shall not be questioned in any other place.”
Although these federal and state constitutional provisions share a distant and common origin in the English
“Let us then look to that constitution, adopted by the people of Wisconsin, and endeavor to ascertain its true intent and meaning, the distribution of the powers of government which it has in fact made, and the agencies which it has provided, whereby those powers are to be executed. And here, let it be remarked, that our conclusions must be guided and determined, not by theories of speculators upon the science of government, not by the opinion of jurists of other states reasoning upon philosophical abstractions or political postulates, but by the plain, simple, but authoritative and mandatory provisions of our own constitution. We made it ourselves. We are bound to abide by it, until altered, amended or annulled, and we must construe it, and support it, not according to the vague, conjectural hypothesis of volunteer expounders, resident in other states, having no care or interest in the government, and having no knowledge of the constitution of our state, but according to its plain letter and meaning, as the oath-bond of our safety —as the palladium of our rights and liberties —as the vital principle of our social and political organism.
“The people then made this constitution, and adopted it as their primary law. The people of other states made for themselves respectively, constitutions which are construed by their own appropriate functionaries. Let them construe theirs —let us construe, and stand by ours.”
See also Carpenter and Sprague v. The County of Dane, 9 Wis. 249 [274] (1859).
We consider first the claim of privilege under
We have previously articulated the analysis which a court should employ in interpreting provisions of the Wisconsin Constitution. Busé v. Smith, 74 Wis. 2d 550, 568, 247 N.W.2d 141 (1976); Board of Education v. Sinclair, 65 Wis. 2d 179, 222 N.W.2d 143 (1974). We have said that the court will examine:
“(1) The plain meaning of the words in the context used;
“(2) The historical analysis of the constitutional debates and of what practices were in existence in 1848, which the court may reasоnably presume were also known to the framers of the 1848 constitution, see State ex rel. Zimmerman v. Dammann (1930) 201 Wis. 84, 88, 89, 228 N.W. 593; and State ex rel. Comstock [v. Joint School District, 65 Wis. 631, 27 N.W. 829 (1886)]; and “(3) The earliest interpretation of this section by the legislature as manifested in the first law passed following the adoption of the constitution. Payne v. Racine (1935), 217 Wis. 550, 259 N.W. 437.” Busé v. Smith, 74 Wis. 2d 550, 568, 247 N.W.2d 141 (1976).
The court of appeals applied these rules of construction and concluded as follows:
“‘Civil process’ is not defined in the Wisconsin Constitution. Reasonable persons can differ regarding its meaning, as applied to a subpoena. Accordingly, the term is ambiguous and the plain meaning rule does not apply.
“Defendant relies on an analysis of the 1848 constitutional debates. During the debates on the article entitled, ‘Legislative,’ Mr. Chase moved to strike out the fifteenth section, exempting members from arrest. Mr. Estabrook then moved ‘to amend the amendment so as to strike out that part of it which privileged members of the legislature from civil actions.’ Journal of thе Convention to Form a Constitution for the State of Wisconsin at 212 (Tenney, Smith and Holt 1848). Mr. Estabrook‘s ‘amendment to the amendment’ was rejected. Journal at 212. It is difficult to find significance in Mr. Estabrook‘s references to ‘civil actions’ in this context.
“We turn to the practices in existence in 1848 and to the earliest interpretations of this section by the legislature as manifested in the first law passed following adoption of the constitution. Section 1, ch. 87, Rev. Stats. 1849, provided in relevant part:
“The several courts of this state having a seal, are courts of record, and they shall respectively have power:
“1. To issue process of subpoena, requiring the attendance of any witness residing or being in any part of this state, to testify in any matter or cause pending or triable in such courts:
“Section 1, ch. 87, Rev. Stats. 1849, establishes to our satisfaction that the first legislature following the adoption of the constitution assumed thаt the issuance of a subpoena was a type of civil process. We recognize that sec. 1, ch. 87, Rev. Stats. 1849, is not literally a construction of art. IV, sec. 15 within the meaning of Busé, supra. However, because the Revised Statutes of 1849 are the first of our statutes to be enacted following the constitution, it is reasonable to rely on those statutes as reflecting the practice when the constitution was adopted to assist our interpretation of a word used by the authors of the constitution in 1848. “Accordingly, we conclude that a legislator is immunized by art. IV, sec. 15 of the Wisconsin Constitution from being subpoenaed during and fifteen days before and after a session of the legislature.” 110 Wis. 2d at 48-49.
We have reviewed the court of appeals’ application of the Sinclair and Busé rules of constitutional interpretation to the present case, and its research and analysis, and we conclude, as did the court of appeals, that the constitutional phrase “civil process” includes a subpoena. 110 Wis. 2d at 48-49.
The next question is whether the privilege granted by section 15 to a member of the legislature may be invoked by the member on behalf of an aide. We agree with the approach taken by the court of appeals: when the Sinclair and Busé rules of constitutional interpretation do not provide an answer, the meaning of a constitutional provision may be determined by looking at the objectives of the framers in adopting the provision. We conclude, as did the court of appeals, that the rationale for the privilege was to preserve the public‘s right to representation in the state legislature during the session of the legislature. When a legislator cannot appear the people whom the legislator represents lose their voice in debate
Having concluded that White is subject to a subpoena under
Following the rules of Sinclair and Busé we look for the nineteenth century plain meaning of the phrase “liable in any civil action,” which is not defined in the constitution. According to the Imperial Dictionary
To help clarify the meaning of section 16 we look to the constitutional debates. The original version of section 16 provides that “no words spoken in debate in either house of the legislature, shall be the foundation of any action, complaint, or prosecution whatever.” Journal of the Convention to Form a Constitution for the State of Wisconsin at 118 (Tenney, Smith, and Holt, 1848). The amendment to reword the section as it is presently written was proposed by a member of the Committee on Revision and Arrangement. This member‘s report to the convention included the following remarks concerning the proposed amendments:
“The committee in discharging their duty had examined the several articles with scrupulous care, and had suggested several verbal amendmеnts, in which they had varied the phraseology by selecting such words as conveyed the meaning most fully, and as were most generally used in constitutional law. They had also made some grammatical and orthographical corrections, but in no case changed the meaning or sense.” Journal at 454.
Since the draftsmen considered the phrase “foundation of any action, complaint, or prosecution whatever” to be synonymous with the phrase ultimately adopted, we may find a further clue to the framers’ intent in the nineteenth century meaning of the words “foundation,” “action,” “complaint,” or “prosecution.” The Imperial Dictionary defines foundation as “the basis or groundwork of any thing; that on which any thing stands, and by which it is supported“; action as “(in law) literally,
For resolution of the meaning of section 16, we consider the objectives the framers sought to achieve. The framers’ objectives in adopting section 16 were to еnsure the independence of the legislature and the integrity of the legislative process by precluding the possibility of intimidation or harassment of members of the legislature. In the English parliamentary struggles the privilege was initially viewed as a protection of members of Parliament against action by the Crown. The privilege was expanded over the years to protect legislators against harassment by the executive or individuals and to foreclose accountability of the legislator before a possibly hostile judiciary. Yankwich, The Immunity of Congressional Speech-Its Origin, Meaning and Scope, 99 U. Pa. L. Rev. 960 (1951). Section 16 thus reinforces the separation of powers doctrine, protecting the independent functioning of the legislative branch by preventing interference, intrusion, or intimidation by the other branches. The framers’ judgment was that the courts are not the proper place to hold
The objectives of section 16 are implicated not only when the legislator is a defendant in a civil suit for damages or in a criminal prosecution but also when the legislator is called as a witness to testify. Although compelling testimony is probably not as coercive as charging the legislator with liability for a civil wrong or criminal offense, intimidation and harassment of a legislator may still result from the threat of a subpoena to testify. Requiring a legislator to submit to the burden of testifying about “words spoken in debate” might chill the ardor of a member to speak and act freely in the performance of legislative functions.
We conclude that interpreting section 16 to protect the legislator not only from adverse judgments but also from questioning in a judicial proceeding comports with the objective of the section, and we so interpret section 16.
The second question raised by the defendant as to the applicability of section 16 to this case is whether the activities of the speaker fall within the sphere of legislative functions to which section 16 is applicable. Not all of the legislator‘s activities fall within the protection of section 16. The privilege granted a legislator by section 16 is not unlimited. The constitution literally protects the member from liability for “words spoken in debate.” The clause thus focuses upon matters occurring in legislative deliberations. Neither section 16 nor the separation of powers doctrine bars the court from ever exercising jurisdiction over a legislator. The principle accorded legislators by section 16 exists only to the extent necessary for the adequate functioning of the state legislаtive body. The court‘s task of defining the bounds of the legislative privilege is difficult. The court must ensure that legislative privileges are broad enough to protect the
Because substantive immunity and a privilege not to testify are exceptions to the time-honored rules that all persons are liable for the wrongs they commit and all persons must testify in judicial proceedings,7 section 16 should be construed to extend only so far as is necessary to achieve its objective of protecting the integrity of the legislative process. Nevertheless, considering the purposes of section 16, we do not read section 16 as limited to words spoken on the floor of the Assembly or Senate in debate. We read section 16 to reach matters that are an integral part of the processes by which members of the legislature participate with respect to the consideration of proposed legislation or with respect to other matters which are within the regular course of the legisla-
“These privileges are thus secured, not with the intention of protecting the members against prosecutions for their own benefit, but to suрport the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecutions, civil or criminal. I therefore think that the article ought not to be construed strictly, but liberally, that the full design of it may be answered. I will not confine it to delivering an opinion, uttering a speech, or haranguing in debate; but will extend it to the giving of a vote, to the making of a written report, and to every other act resulting from the nature, and in the execution, of the office. . . .”
We conclude that the sphere of legislative action deserving of protection under section 16 is broader than the actual deliberations on the floors of the houses but to be protected the legislative activity must be related closely to the purposes justifying the protection.
The question remains then whether in this case the speaker‘s activities about which the defendant sought to question White fall within section 16. The speaker‘s affidavit asserts that he is chairperson of the Assembly Organization Committee and co-chairperson of the Joint Committee on Legislative Organization which is authorized to “inquire into alleged misconduct by members or employees of the legislature.”
The affidavits of White and the speaker state that in the course of conducting the investigation, White was given information by an unnamed person in exchange for a promise of confidentiality. The record indicates that Delbert Beno could have had relevant information concerning any investigation involving Representative Ward. Therefore, facts regarding the background and credibility of Delbert Beno could reasonably have come to White‘s attention in the course of his investigation of a legislator‘s misconduct. It is this information that the defendant seeks to learn. Since an investigation for the purposes of determining the discipline of a member is within the regular course of the legislative process, and because the infоrmation which White allegedly received could have reasonably occurred in the course of this investigation, we conclude that any conversations between White and his sources regarding Delbert Beno‘s tax liability would be within the sphere of the speaker‘s legislative functions protected by section 16.
The third issue raised by the defendant as to the applicability of section 16 to this case is whether a member of the legislature can invoke his or her privilege under section 16 when the aide, not the legislator, is the person subpoenaed. The privilege established by the constitution belongs, according to the words of section 16, to the member of the legislature. Nevertheless, the framers’ objectives in granting the legislator the privilege of not being
We recоgnize that the complexities of the modern legislative process have increased legislators’ reliance upon the assistance of employees. It is an aide‘s relationship with a particular member of the legislature, not the mere fact of employment, that makes it a realistic possibility that questioning of the aide in a judicial forum might have an inhibiting effect upon the member‘s performance and might infringe upon the member‘s legislative independence. When the aide is acting as the member‘s alter ego in carrying out an activity which falls within the scope of section 16, the purposes of section 16 will be served if the aide and the member are treated as one under section 16 and the member is allowed to assert his or her privilege to prohibit the questioning of an aide. An opposite conclusion would compel the legislator to perform all legislаtive tasks personally to secure the protection of section 16.
The privilege of not being compelled to testify is the legislator‘s not the aide‘s, and only the legislator may invoke the privilege. If an aide is subpoenaed to testify, the aide has no privilege under section 16 not to testify unless the member of the legislature approves the aide‘s assertion of the privilege. To assert the privilege under section 16 to protect the aide from being compelled to testify, the member must demonstrate that the aide was in fact acting at the member‘s request and that the act about which the aide will be questioned falls within the scope of legislative functions protected under section 16 if performed personally by the legislator. The member must thus formally and publicly take personal responsibility for the aide‘s activity.
In this case the speaker invoked his privilege under section 16 asserting that White did act as his alter ego,
Finally, the defendant asserts that the privilege under section 16 was waived when White divulged information about Delbert Beno. The defendant reasons that disclosure of the substance of the confidential matter waives the privilege. The defendant‘s reasoning is erroneous, because the legislative privilege under section 16, unlike other privileges set forth in ch. 905, Stats. 1981-82, is not based solely on the need to preserve confidentiality of communications. The legislative privilege is designed to prevent questioning of a legislator even if the substance of the matter is public infоrmation. The speaker asserted the legislative privilege immediately upon receipt of the subpoenas and continually asserted the privilege thereafter. Under these circumstances it is clear that the privilege was not waived.8
By the Court. —The decision of the court of appeals is reversed.
LOUIS J. CECI, J. (dissenting). I respectfully disagree with the conclusion of the majority only as it relates to immunity for legislative aides under
“For more than three centuries it has now been recognized as a fundamental maxim that the public (in the words sanctioned by Lord Hardwicke) has a right to every man‘s evidence. When we come to examine the various claims of exemption, we start with the primary
assumption that there is a general duty to give what testimony one is capable of giving and that any exemptions which may exist are distinctly exceptional, being so many derogаtions from a positive general rule.” 8 Wigmore, Evidence, sec. 2191 (McNaughton rev. 1961).
The Supreme Court has cited this maxim with approval. United States v. Bryan, 339 U.S. 323, 331 (1950).
The reasons behind this maxim are well-founded. Dean Wigmore has characterized the duty as a contribution which must be made by the individual to society in order that the execution of justice is ensured. He has also stated that this demand for the individual‘s contribution is made by the community as a whole, to protect the continuance of the judicial process and ultimately to achieve a state of law and order which civilized society requires. Therefore, any privileges of exemption from the duty to testify must be treated as exceptional and should be approached with caution. “They should be recognized only within the narrowest limits required by principle. Every step beyond these limits helps to provide, without any real necessity, an obstacle to the administration of justice.” 8 Wigmore, Evidence sec. 2192. One must always bear in mind that the very foundation of the lеgal system is the doctrine of full disclosure.
This court has striven to abide by this maxim, stating in a recent case that the duty to testify extends to all citizens, including the President of the United States, and that the courts will only excuse persons from the duty in the most extreme situations, such as when a young child‘s emotional well-being is threatened should she be compelled to testify. State v. Gilbert, 109 Wis. 2d 501, 504-08, 326 N.W.2d 744 (1982).
In this decision, however, the majority seemingly has brushed over this maxim. The majority states that
I do not take issue with the majority‘s general reasoning concerning the legislator‘s increased dependence on the aide because of the complexities of the modern legislative process. However, I do take issue with the majority‘s interpretation of section 16 in order to extend the privilege to the aide, especially when one considers the fact that the statement did not relate to the aide‘s duties for the legislator. Clearly, this is stepping beyond the narrowest limits which privileges must be accorded. Also, it opens the door to future claims that a person who is protected by an express statutory, common law, or constitutional privilege requires another‘s assistance in order to сarry out that person‘s duties in society. The court has created an entirely new class of persons exempt from the duty to testify, and there is no clear limit to the potential parameters of this class.