[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 7. The Members]
[D. Immunities of Members and Aides]
[§ 18. From Arrest]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 815-826]
CHAPTER 7
The Members
D. IMMUNITIES OF MEMBERS AND AIDES
Sec. 18. From Arrest
Article I, section 6, clause 1 of the Constitution states of
Senators and Representatives that ``they 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.'' (6) Unlike the
Speech and Debate Clause, which was not judicially defined until the
20th century,(7) issues relating to the immunity from arrest
were litigated soon after the adoption of the
Constitution.(8)
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6. See, in general, House Rules and Manual Sec. 90 (1973) (comment to
the constitutional provision). For Jefferson's comments, see
House Rules and Manual Sec. Sec. 287-292, 300-309 (1973). See
also, for early commentary, Story, Commentaries on the
Constitution of the United States, Sec. Sec. 856-862, Da Capo
Press (N. Y. repute. 1970). Story attributed to Congress the
power of contempt to punish those who unlawfully arrest
Members, id. at Sec. 860, but the House has no such general
contempt power. See Kilbourn v Thompson, 103 U.S. 189 (1881)
and Marshall v Gordon, 243 U.S. 521 (1917).
7. See Sec. 16, supra.
8. The first cases on the constitutional privilege were Coxe v
M'Clenachen, 3 Dall. 478 (Sup. Ct. Pa. 1798) and U.S. v Cooper,
4 Dall. 341 (U.S. Cir. Ct. D. Pa. 1800).
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The immunity from arrest has been extensively discussed on the
floor of the House, since subpenas, summonses, and arrests of Members
while the House is in session are presented to the House as questions
of privilege. The House has decided that a summons or subpena to a
Member to appear in court, or before a grand jury, while the House is
in session invades the rights and privileges of the
House.(9) The permission of the House is required for a
Member to attend upon a court during sessions of Congress; the House
usually by resolution permits
[[Page 816]]
court appearance at such time as the Congress is not actually in
session.(10) On most occasions, Representatives and Senators
seek accommodation between their duty to appear in court and their duty
to attend upon the sessions of Congress,(11) since the
purpose of the clause is not for the benefit or convenience of
individual legislators but is to prevent interference with the
legislative process by the courts and by grand juries.(12)
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9. See Sec. 18.1, infra.
Subpenas, summonses, and arrests are presented as questions
of House privilege and not personal privilege, since they
affect the rights of the House collectively, its safety,
dignity, and integrity of proceedings. See Rule IX, House Rules
and Manual Sec. 661 (1973). And resolutions proposing action by
the House are called up under a question of the privileges of
the House.
The personal privilege of the Member may also be involved,
however, since that privilege rests primarily on the
constitutional immunities. See House Rules and Manual Sec. 663
(1973). For an instance where a grand jury summons was raised
as a question of personal privilege, see 6 Cannon's Precedents
Sec. 586.
10. See Ch. 11, infra.
11. See Sec. Sec. 18.1, 18.3, 18.5, infra.
12. See U.S. v Brewster, 408 U.S. 501, 507 (1972); James v Powell, 274
N.Y.S. 2d 192, 26 App. Div. 2d 295 (1966); U.S. v Cooper, 4
Dall. 341 (U.S. Cir. Ct. D. Pa. 1800).
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The Constitutional Convention adopted a privilege from arrest with
substantially the same scope as the English parliamentary
privilege.(13) Under the common law, the privilege did not
apply to any indictable offenses.(14) The words ``treason,
felony, and breach of the peace'' have been construed by the Supreme
Court to remove from the operation of the privilege all criminal
offenses.(15) Criminal offenses are those in which fine and/
or imprisonment are imposed as punishment.(16) Therefore,
the immunity applies only to arrest in civil cases, which was a common
procedure at the time of the Constitutional Convention.(17)
Since
[[Page 817]]
arrests seldom attach in contemporary practice to civil suits, the
clause has been described as virtually obsolete.(18)
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13. Although the parliamentary privilege from arrest may date from the
sixth century, the first legislative recognition appeared in
1603 in the statute of 1 James I, C. 13. See Taswell-Longmead,
English Constitutional History, 324-332 and note 5 (2d ed.
1881).
The arrest immunity, like the speech and debate immunity,
was included in the U.S. Constitution with little debate or
discussion. See vol. 2, Records of the Federal Convention 140,
141, 156, 166, 180, 246, 254, 256, 267, 567, 593, 645; vol. 3,
148, 312, 384; vol. 4, 40-43 (Farrand ed. 1911).
14. Story, Commentaries on the Constitution of the United States,
Sec. 862, Da Capo Press (N.Y. repute. 1970); Williamson v U.S.,
207 U.S. 425 (1908).
15. Williamson v U.S., 207 U.S. 425 (1908). The Court relied on
parliamentary precedents, and upon the meaning of the clause at
the time of the Constitutional Convention.
16. See 21 Am Jur 2d Criminal Law 1.
17. Long v Ansell, 293 U.S. 76, 82 (1934) noted that ``when the
Constitution was adopted, arrests in civil suits were still
common in America. It is only to such arrests that the
provision applies.''
For an early case where a Member had been arrested in a
civil suit and released on bail, and his surety agreed to
surrender him four days after the close of the congressional
session, see Coxe v M'Clenachen, 3 Dall. 478 (Sup. Ct. Pa.
1798).
18. See U.S. Constitution Annotated, Library of Congress, S. Doc. No.
92-82, p. 117, 92d Cong. 2d Sess. (1972).
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Questions have arisen, however, whether subpenas and summonses
directed to Members of Congress, either as defendants in court cases,
or as witnesses in civil and in criminal cases, constitute prohibited
arrest. The rulings of the courts, both state and federal, have
uniformly expressed the principle that a summons or subpena is not an
arrest, and is not precluded by the Constitution.(19)
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19. ``Senator Long [served with summons as defendant in civil suit for
libel] contends that article I, section 6, clause 1 of the
Constitution, confers upon every Member of Congress, while in
attendance within the District, immunity in civil cases not
only from arrest, but also from service of process. Neither the
Senate, nor the House of Representatives, has ever asserted
such a claim in behalf of its Members. Clause 1 defines the
extent of the immunity. Its language is exact and leaves no
room for a construction which would extend the privilege beyond
the terms of the grant.'' Long v Ansell, 293 U.S. 76, 82
(1934).
For other cases holding that Congressmen named as parties
in civil cases are not immune from summonses and service of
process, see Sec. 18.4, infra.
For cases holding that Congressmen are not immune from
grand jury subpenas, to testify as witnesses, see
Sec. Sec. 18.1, 18.2, infra.
For cases holding that Congressmen are not immune from
subpenas to testify as witnesses in criminal cases, when called
either by the defendant or by the government, see Sec. 18.3,
infra.
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Likewise, a Senator or Representative is not exempt from service of
civil process and attachment of a bank account,(20) may not
have a civil suit postponed as a matter of right,(1) and is
not immune from orders relating to the taking of a
deposition.(2)
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20. Howard v Citizen Bank & Trust Co., 12 App. D.C. 222 (1898).
1. Nones v Edsall, 1 Wall. 189, 18 F. Cases No. 10, 290 (U.S. Cir. Ct.
D.N.J. 1848). The court did grant the continuance as a matter
of judicial discretion.
2. Yuma Greyhound Park, Inc. v Hardy, 472 P.2d 47 (Ariz. 1970).
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The courts have recognized, however, that Congressmen sought to be
summoned or subpenaed have a duty to be present at the sessions of
Congress. Therefore, Congressmen have been allowed to accommodate their
court appearance with their congressional duties.(3)
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3. In James v Powell, 274 N.Y.S. 2d 192, 26 App. Div. 2d 295 (1966),
the court stated in reference to subpenas served upon Members
that where actual interference with the legislative process is
shown the courts will make suitable provision by way of
adjournment or fixing of a time and place of examination which
will obviate any real conflict.
In U.S. v Cooper, 4 U.S. (4 Dall.) 341 (U.S. Cir. Ct. D.
Pa. 1800) the court stated that Members were not exempt from a
subpena to testify in a criminal case, but that nonattendance
would not necessarily result in an attachment for arrest. A
satisfactory reason could appear to the court to excuse
attendance.
In Respublica v Duane, 4 Yeates 347 (Sup. Ct. Pa. 1807),
the court refused an attachment against Members for not obeying
a subpena, where it was alleged they were not in attendance
upon Congress. The court stated that a reasonable time to
respond must be given, and that the failure of a Member to
attend upon sessions must be proved.
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[[Page 818]]
In at least one case, a Member who did not seek such accommodation
was adjudged after the close of the session in contempt and ordered
fined and imprisoned.(4)
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4. See James v Powell, 274 N.Y.S. 2d 192, 26 App. Div. 2d 295 (1966),
aff'd, 277 N.Y.S. 2d 135, 18 N.Y. 2d 931, 223 N.E. 2d 562
(1966), motion to modify order granted, 279 N.Y.S. 2d 972, 19
N.Y. 2d 813, 226 N.E. 2d 705 (1967). The court stated that
interference with the duties of congressional attendance had
neither been alleged nor shown. The order for appearance later
became mooted in the case.
An attachment during a session for willful failure to obey
a subpena might involve a civil arrest, prohibited by the
immunity from arrest. See 6 Cannon's Precedents Sec. 588.
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If a Member were to be arrested in a civil suit during a session of
Congress, Congress could free him through a writ of habeas
corpus.(5)
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5. Jefferson's Manual, House Rules and Manual Sec. 288 (1973). On one
occasion an arrested Member was freed by a House officer (see 3
Hinds' Precedents Sec. 2676).
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The immunity from arrest applies not only while Congress is in
session, but also while a Member is en route to or from the session.
The time spent traveling must be a reasonable time, and the journey
must not be abandoned through substantial deviations.(6) If
a Member-elect with credentials travels to a session,(7) and
is de
[[Page 819]]
nied a seat because of an election contest, he is entitled to the
privilege until a reasonable time for his journey home has
elapsed.(8) Several state court decisions have held that if
a Member of Congress is absent from a session and his absence is not
for official but for private business, the privilege does not apply to
him.(9)
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6. See Hoppin v Jenckes, 8 R.I. 453 (1867) (court stated that 40 days
before and after session was unreasonably long); Lewis v
Elmendorf, 2 Johnson's Cases 222 (Sup. Ct. N.Y. 1801) (arrest
upheld, Member 10 days en route after leaving home); Miner v
Markham, 28 F 387 (E.D. Wisc. 1886) (deviation to Milwaukee,
while traveling from California to Washington, D.C.,
allowable).
For commentary on a reasonable time for travel and
unallowable deviations while in transit, see Jefferson's
Manual, House Rules and Manual Sec. 289 (1973).
7. Jefferson's Manual states that the privilege from arrest takes
place by force of election. House Rules and Manual Sec. 300
(1973).
8. Dunton & Co. v Halstead, 2 Clark 236 (Diet. Ct. Phil. 1840) (after
loss of seat, excluded Member-elect delayed departure from
Washington pending granting of per diem allowance for return;
immunity from arrest upheld).
9. Worth v Norton, 56 S.C. 56 (1899); compare Respublica v Duane, 4
Yeates 347 (Sup. Ct. Pa. 1807).
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Delegates and Resident Commissioners are entitled to the immunity
as well as Members.(10)
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10. Doty v Strong, 1 Pinn. 84 (Sup. Ct. Wisc. Territ. 1840).
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Collateral References
Congressional Immunity from Arrest, 70 U.S. L. Rev. 306 (June 1936).
Constitutional Privilege of Legislators: Exemption from Arrest and
Action for Defamation, 9 Minn. L. Rev. 442 (1925).
Legislative Immunity, Arrest Under Motor Vehicle Code, Limits of the
Legislative Immunity, 7 U. Pitt. L. Rev. 486 (1951).
Redfield, The Immunities of Congress from Process, 10 Geo. Wash. L.
Rev. 513 (Mar. 1942).
Whether a Member of Congress may, during a session of Congress, be
subpenaed as a witness in judicial proceedings (Memo of Legislative
Counsel, U.S. Senate), 103 Cong. Rec. 4203-05, 85th Cong. 1st
Sess., Mar. 22, 1957. -------------------
Grand Jury Summons
Sec. 18.1 The House has determined that a summons issued to a Member to
appear and testify before a grand jury while the House is in
session invades the rights and privileges of the
House.(11)
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11. But see Gravel v U.S., 408 U.S. 606 (1972) in which the Supreme
Court, in holding a legislative aide not immune from
questioning by a grand jury about alleged illegal acts related
to the activities of a Senator, implied that the Senator
himself would not be immune from a grand jury subpena, and
ruled that no constitutional or other privilege shielded the
aide or ``any other witness'' from questioning by a grand jury
about alleged illegal activities not implicating legislative
conduct. 408 U.S. at 628.
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On Nov. 17, 1941, the House authorized by resolution Mr. Hamilton
Fish, Jr., of New York, to appear and testify before a grand jury of
the United States District Court for the District of Columbia at such
time as the House was not sitting in ses
[[Page 820]]
sion.(12) The authorizing resolution was adopted pursuant to
the report of a committee that the service of a summons to a Member to
appear and testify before a grand jury while the House is in session
does invade the rights and privileges of the House of Representatives,
as based on article I, section 6 of the Constitution, providing
immunities to Members against arrest and against being questioned for
any speech and debate in either House.(13) The report
indicated, however, that in each case the House may waive its
privileges, attaching such conditions to its waiver as it may
determine.
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12. H. Res. 340, from the Committee on the Judiciary, 87 Cong. Rec.
8933, 8934, 77th Cong. 1st Sess.
13. The report, from the Committee on the Judiciary, was read into the
Record at 87 Cong. Rec. 8933. The committee has been empowered
by H. Res. 335, 77th Cong. 1st Sess., to ``investigate and
consider whether the service of a subpena or any other process
by a court or a grand jury purporting to command a Member of
this House to appear and testify invades the rights and
privileges of the House of Representatives.''
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After the resolution authorizing Mr. Fish to testify was adopted,
there ensued debate on the scope of the immunities of
Members.(14) The wording of the subpena in question was
drawn into issue, since the subpena stated that once the Member
appeared to testify he would not be permitted to depart from the court
without leave of the court or of the District Attorney. The House
determined by the adoption of the resolution that when the Congress is
in session it is the duty of the House to prevent a conflict between
the duty of a Member to represent his people at its session and his
duty as a citizen to give court testimony.(15)
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14. 87 Cong. Rec. 8934, 8949-58.
15. H. Rept. No. 1415, 87 Cong. Rec. 8933 and the remarks of Mr.
Emanuel Celler (N.Y.), 87 Cong. Rec. 8935, 8936.
For a critical analysis of the resolution adopted in
relation to the grand jury appearance of Mr. Fish, see
Redfield, The Immunities of Congress from Process, 10 Geo.
Wash. L. Rev. 513 (Mar. 1942).
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Similarly, on Feb. 16, 1942,(16) the House authorized
Mr. Steven A. Day, of Illinois, to appear and testify before a grand
jury of the U.S. District Court for the District of Columbia when the
House was not sitting in session. The summons to Mr. Day was raised as
a question of personal privilege in the House.
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16. 88 Cong. Rec. 1267, 77th Cong. 2d Sess.
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Sec. 18.2 A Member, having received a subpena to testify for the
government before a
[[Page 821]]
grand jury, refused to answer the subpena under his privilege as a
Member of the House, but stated he would make an effort to meet
with the grand jury when the House was not in session.
On May 3, 1949,(17) Mr. Harold H. Velde, of Illinois,
informed the House that he had been served with a subpena issued by a
federal grand jury sitting in New York City demanding that he appear to
testify in relation to an alleged violation of a conspiracy statute. He
further stated:
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17. 95 Cong. Rec. 5544, 5545, 81st Cong. 1st Sess.
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Mr. Speaker, most of the Members of the House are more familiar
than I with the procedure of grand juries and other courts in
subpenaing Members of Congress while it is in session. It appears
at this time that the debate and discussion and vote on labor
legislation here will continue during the time I am called to
appear before the grand jury; therefore I shall use my prerogative
as a Member of Congress and refuse to answer this subpena. For the
record, however, I want to say that I shall make every attempt to
meet with the grand jury in New York City and give it any
information I may have concerning the matters they are now
investigating.(18)
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18. Id. at p. 5544.
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Parliamentarian's Note: Mr. Velde did appear before the grand jury
in New York City the following weekend after having made telephonic
arrangements with the foreman of the grand jury.
Subpena of Member as Witness
Sec. 18.3 Certain Members having been subpenaed by the defendant to
appear as witnesses in a contempt of Congress case, the House
adopted a resolution authorizing them to appear at such time when
the House was not sitting in session.(19)
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19. In U.S. v Cooper, 4 U.S. (4 Dall.) 341 (Cir. Ct. D. Pa. 1800), it
was held that there is no privilege such as to exempt Members
of Congress from the service, or obligation, of a subpena
obtained by a defendant in a criminal case. Justice Chase
stated that every man charged with an offense was entitled to
compulsory process to secure the attendance of his witnesses.
See also Gravel v U.S., 408 U.S. 606, 615 (1972) (dicta
that Members of Congress not immune from service of process as
witness in a criminal case).
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On Feb. 23, 1948, Mr. John S. Wood, of Georgia, arose to state a
question of the privilege of the House, and laid before the House
subpenas to testify, obtained by the defendant, in a contempt of
Congress case, addressed to himself and to three other Members of
[[Page 822]]
the House.(20) After some debate, the House agreed to
Resolution No. 477, authorizing the Members to appear in court at such
time as the House was not sitting in session:
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20. 94 Cong. Rec. 1557, 1558, 80th Cong. 2d Sess.
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Whereas Representatives John S. Wood, J. Hardin Peterson, John
R. Murdock, and Gerald W. Landis, Members of this House, have been
subpenaed to appear as witnesses before the District Court of the
United States for the District of Columbia to testify at 10 a.m. on
the 24th day of February 1948, in the case of the United States v.
Richard Morford, Criminal No. 366-47; and
Whereas by the privileges of the House no Member is authorized
to appear and testify but by the order of the House: Therefore be
it
Resolved, That Representatives John S. Wood, J. Hardin
Peterson, John R. Murdock, and Gerald W. Landis are authorized to
appear in response to the subpenas of the District Court of the
United States for the District of Columbia in the case of the
United States v. Richard Morford at such time as when the House is
not sitting in session; and be it further
Resolved, That a copy of these resolutions be transmitted to
the said court as a respectful answer to the subpenas of the said
court.(1)
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1. For similar resolutions adopted by the House upon the service of
subpenas to Members in congressional contempt cases, see 99
Cong. Rec. 1658, 83d Cong. 1st Sess., Mar. 5, 1953; 97 Cong.
Rec. 11571, 82d Cong. 1st Sess., Sept. 18, 1951; 97 Cong. Rec.
6084, 82d Cong. 1st Sess., June 4, 1951; 94 Cong. Rec. 4347,
80th Cong. 2d Sess., Apr. 12, 1948; 94 Cong. Rec. 4264, 80th
Cong. 2d Sess., Apr. 8, 1948; and 94 Cong. Rec. 2224, 80th
Cong. 2d Sess., Mar. 5, 1948.
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In explanation of the resolution, Mr. Earl C. Michener, of
Michigan, referred to the precedent set on Nov. 17, 1941, when the
House adopted a similar resolution, in reference to grand jury
subpenas.(2) He further stated:
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2. See Sec. 18.1, supra.
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First, the Constitution lodges a discretion in the House. This
resolution simply exercises that discretionary power. This
privilege can only be waived by the House, and not by the
individual Member. It seems that Members of some committees have
been voluntarily appearing in response to subpenas to appear in
court. No question was raised. The right of the House to function
and the right of Members to be present and vote must not be
interfered with.(3)
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3. 94 Cong. Rec. 1559, 80th Cong. 2d Sess.
When Members are subpenaed to appear as witnesses in civil
cases, where they are named as parties, the House may adopt
resolutions authorizing them to appear when the House is not
sitting in session (see 100 Cong. Rec. 10904, 83d Cong. 2d
Sess., July 19, 1954; 100 Cong. Rec. 1675-77, 83d Cong. 2d
Sess., Feb. 12, 1954).
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[[Page 823]]
Sec. 18.4 Where Members and employees of the House were subpenaed to
testify in a private civil suit alleging damage from acts committed
in the course of their official duties, the House referred the
matter to the Committee on the Judiciary to determine whether the
rights of the House were being invaded.(4)
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4. Congressmen are not immune from the service or obligation of
summonses or subpenas when named as defendants in civil cases,
Long v Ansell, 293 U.S. 76 (1934). Contempt may lie against a
Congressman for refusing to obey a subpena when named as a
defendant in a civil case. James v Powell, 274 N.Y.S. 2d 192,
26 App. Div. 2d 295 (1966), aff'd, 277 N.Y.S. 2d 135, 18 N.Y.
2d 931, 223 N.E. 2d 562 (1966), motion to modify order granted,
279 N.Y.S. 2d 972, 19 N.Y. 2d 813, 226 N.E. 2d 705 (1967). See
also Yuma Greyhound Park, Inc. v Hardy, 472 P.2d 47 (Ariz.
1970); James v Powell, 250 N.Y.S. 2d 635, 43 Misc. 2d 314
(1964); People on Complaint of James v Powell, 243 N.Y.S. 2d
555, 40 Misc. 2d 593 (1963); Worth v Norton, 56 S.C. 56 (1899);
Howard v Citizen Bank & Trust Co., 12 App. D.C. 222 (1898);
Bartlett v Blair, 68 N.H. 232 (1894).
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On Mar. 26, 1953,(5) the House was informed of the
subpena of members and employees of the Committee on Un-American
Activities in a civil suit contending that acts committed in the course
of an investigation of the committee had injured the plaintiffs. The
House by resolution (H. Res. 190) referred the matter to the Committee
on the Judiciary to investigate whether the rights and privileges of
the House, as based upon the immunities from arrest and of speech and
debate, were being invaded:
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5. 99 Cong. Rec. 2356-58, 83d Cong. 1st Sess.
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Whereas Harold H. Velde, of Illinois; Donald L. Jackson, of
California; Francis E. Walter, of Pennsylvania; Morgan M. Moulder,
of Missouri; Clyde Doyle, of California; and James B. Frazier, Jr.,
of Tennessee, all Representatives in the Congress of the United
States; and Louis J. Russell and William Wheeler, employees of the
House of Representatives, have been by subpenas commanded to appear
on Monday and Tuesday, March 30 and 31, 1953, in the city of Los
Angeles, Calif., and to testify and give their depositions in the
case of Michael Wilson et al. v Loew's Incorporated et al., an
action pending in the Superior Court of the State of California in
and for the County of Los Angeles; and
Whereas the complaint in the aforesaid case of Michael Wilson
et al. v Loew's Incorporated et al., lists among the parties
defendant therein John S. Wood, Francis E. Walter, Morgan M.
Moulder, Clyde Doyle, James B. Frazier, Harold E. Velde, Barnard W.
Kearney, Donald L. Jackson, Charles E. Potter, Louis J. Russell,
and William Wheeler; and
[[Page 824]]
Whereas part III of said complaint reads as follows:
``At all times herein mentioned defendant John S. Wood was the
chairman of the Committee on Un-American Activities, United States
House of Representatives; defendants Francis E. Walter, Morgan M.
Moulder, Clyde Doyle, James B. Frazier, Harold E. Velde, Barnard W.
Kearney, Donald L. Jackson, and Charles E. Potter were members of
the said committee; Louis J. Russell was senior investigator of
said committee; William Wheeler was an investigator of said
committee and 41 Doe, 42 Doe, 43 Doe, 44 Doe, 45 Doe, 46 Doe, 47
Doe, 48 Doe, 49 Doe, and 50 Doe were representatives of said
committee.
``At all times mentioned herein and with respect to the matters
hereinafter alleged the defendants named in the preceding paragraph
acted both in their official capacity with relation to said House
Committee on Un-American Activities and individually in nonofficial
capacities''; and
Whereas part V of said complaint contains an allegation that
``on and prior to March 1951 and continuously thereafter defendants
herein and each of them conspired together and agreed with each
other to blacklist and to refuse employment to and exclude from
employment in the motion picture industry all employees and persons
seeking employment in the motion-picture industry who had been or
thereafter were subpenaed as witnesses before the Committee on Un-
American Activities of the House of Representatives . . .''; and
Whereas article I, section 6, of the Constitution of the United
States provides: ``They (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 debate in either House, they (the
Senators and Representatives) shall not be questioned in any other
place''; and
Whereas the service of such process upon Members of this House
during their attendance while the Congress is in session might
deprive the district which each respectively represents of his
voice and vote; and
Whereas the service of such subpenas and summons upon Members
of the House of Representatives who are members of a duly
constituted committee of the House of Representatives, and the
service of such subpenas and summons upon employees of the House of
Representatives serving on the staff of a duly constituted
committee of the House of Representatives, will hamper and delay if
not completely obstruct the work of such committee, its members,
and its staff employees in their official capacities; and
Whereas it appears by reason of allegations made in the
complaint in the said case of Michael Wilson, et al. v Loew's
Incorporated, et al., and by reason of the said processes
hereinbefore mentioned the rights and privileges of the House of
Representatives may be infringed:
Resolved, That the Committee on the Judiciary, acting as a
whole or by subcommittee, is hereby authorized and directed to
investigate and consider whether the service of the processes
[[Page 825]]
aforementioned purporting to command Members, former Members, and
employees of this House to appear and testify invades the rights
and privileges of the House of Representatives; and whether in the
complaint of the aforementioned case of Michael Wilson, et al. v
Loew's Incorporated, et al., the allegations that Members, former
Members, and employees of the House of Representatives acting in
their official capacities as members of a committee of the said
House conspired against the plaintiffs in such action to the
detriment of such plaintiffs, and any and all other allegations in
the said complaint reflecting upon Members, former Members, and
employees of this House and their actions in their representative
and official capacities, invade the rights and privileges of the
House of Representatives. The committee may report at any time on
the matters herein committed to it, and until the committee shall
report and the House shall grant its consent in the premises the
aforementioned Members, former Members, and employees shall refrain
from responding to the subpenas or summons served upon them.
The committee or any subcommittee thereof is authorized to sit
and act at such times and places within the United States, whether
or not the House is sitting, has recessed, or has adjourned, to
hold such hearings, and to require the attendance of such witnesses
and the production of such books, papers, and documents, and to
take such testimony, as it deems necessary. Subpenas may be issued
over the signature of the chairman or by any member designated by
him, and may be served by any person designated by such chairman or
member. The committee is authorized to inure all expenses necessary
for the purposes hereof, including but not limited to expenses of
travel and subsistence, employment of counsel and other persons to
assist the committee or subcommittee, and if deemed advisable by
the committee, to employ counsel to represent any and all of the
Members, former Members, and employees of the House of
Representatives named as parties defendant in the aforementioned
action of Michael Wilson, et al. v Loew's Inc., et al., and such
expenses shall be paid from the Contingent Fund of the House of
Representatives on vouchers authorized by said committee and signed
by the chairman thereof and approved by the Committee on House
Administration; and be it further
Resolved, That a copy of these resolutions be transmitted to
the Superior Court of the State of California in and for the county
of Los Angeles as a respectful answer to the subpenas of the said
court addressed to the aforementioned Members, former Members, and
employees of the House of Representatives, or any of them.
Mr. John W. McCormack, of Massachusetts, stated in reference to the
resolution that ``for the House to take any other action would be
fraught with danger, for otherwise there is nothing to stop any number
of suits being filed against enough Members of the House, and in
summoning them, to impair the efficiency of the House of
Representatives or the Senate to act and function as leg
[[Page 826]]
islative bodies.'' He also stated that the fact that the Members and
employees subpenaed were presently in California in the performance of
their official duties was immaterial, as they were ``out there on
official business, and committees of this body are the arms of the
House of Representatives.'' (6)
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6. Id. at p. 2357.
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Summons to Member as Defendant
Sec. 18.5 The receipt by a Member of a summons to appear before a court
for a traffic violation gave rise to a question of privilege of the
House, and the House authorized the Member to appear when the House
was not in session.(7)
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7. For the proposition that the clause granting Congressmen immunity
from arrest does not apply to criminal cases and proceedings,
see Williamson v U.S., 207 U.S. 425 (1908) (constitutional
words ``treason, felony and breach of the peace'' except from
the privilege all criminal offenses); Gravel v U.S., 408 U.S.
606 (1972) (applies only to arrests in civil suits) (dictum);
Long v Ansell, 293 U.S. 76 (1934) (applies only to arrests in
civil suits) (dictum); Burton v U.S., 169 U.S. 283 (1905) (no
application to felonies) (dictum); U.S. v Wise, 1 Hayward and
Hazleton 82, 28 F Cases 16,746a (1848) (no application to
breach of the peace); State v Smalls, 11 S.C. 262 (1878) (no
application to criminal indictment in state court).
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On Apr. 13, 1953,(8) Mr. Clare E. Hoffman, of Michigan,
stated a question of the privilege of the House when he informed the
House that he had been summoned to appear before a court in Maryland in
connection with an alleged traffic violation. Mr. Hoffman stated that
under the precedents of the House, he was unable to comply with the
summons without the consent of the House. He then submitted a
resolution authorizing him to appear when the House was not sitting in
session and stated that he would at some future time which suited the
convenience of the court appear and submit to its decision.
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8. 99 Cong. Rec. 3013, 3014, 83d Cong. 1st Sess.
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The House agreed to the resolution.(9)
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9. See Legislative Immunity, Arrest Under Motor Vehicle Code, Limits
of the Legislative Immunity, 7 U. Pitt. L. Rev. 150 (Jan.
1941).