[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9.  Election Contests]
[H. Taking of Testimony; Depositions]
[Â§ 30. Subpenas]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1050-1051]
 
                               CHAPTER 9
 
                           Election Contests
 
                  H. TAKING OF TESTIMONY; DEPOSITIONS
 
Sec. 30. Subpenas

    The attendance of witnesses may be compelled by subpena in the 
manner provided by the Federal Contested Elections Act.(12) 
Subpenas for compelling attendance at a deposition must be issued by a 
judge or clerk of a federal district court or court of record of the 
state or county where the place of examination is 
located.(13)
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12. 2 USC Sec. 386(e).
13. 2 USC Sec. 388(a).
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    The time, method, and proof of service is prescribed under the act, 
as is the form of the subpena.(14)
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14. 2 USC Sec. 388 (b), (d).
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    A witness may be required to attend an examination only in certain 
counties or within 40 miles of the place of service.(15)
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15. 2 USC Sec. 388(c).                          -------------------
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Clerk's Refusal to Respond to Subpena

Sec. 30.1 The settled rule that the Clerk will not give up House 
    documents without authorization from the House has been followed by 
    the Clerk in refusing to respond to a subpena served by contestant 
    in an election contest for purposes of obtaining documents filed by 
    contestee in a contested election case.

    In the 1934 Illinois election case of Weber v Simpson (Sec. 47.16, 
infra), the contestant's notary public served a subpena duces tecum 
upon the Clerk requesting

[[Page 1051]]

production of documents filed by the contestee in compliance with the 
Corrupt Practices Act. The Clerk transmitted the subpena, along with 
his reply refusing to comply with it, to the Speaker, who referred it 
to the Committee on the Judiciary. The 73d Congress did not authorize 
the Clerk to respond to the subpena.(16)
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16. See 3 Hinds' Precedents Sec. 2663.
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Noncompliance With Subpena

Sec. 30.2 Although the election contest statute authorized the use of 
    subpenas, there were instances of refusals to testify as well as 
    ignoring of subpenas by witnesses; for this reason, a House 
    elections committee recommended that the laws be amended and some 
    practical procedure be adopted by which witnesses could be required 
    to obey process and give testimony.

    See Lanzetta v Marcantonio (Sec. 48.1, infra), a 1936 New York 
contest, wherein various witnesses refused to testify or could not be 
found or failed to obey the subpena or refused to sign testimony which 
might have been incriminating; it also appeared that contestee's law 
partner, the campaign fund treasurer, refused to testify. The law now 
provides for fine or imprisonment for noncompliance.(17)
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17. Under the present statute, 2 USC Sec. 390, noncompliance is a 
        misdemeanor punishable by a fine of not more than $1,000 nor 
        less than $100, or imprisonment for not less than one month nor 
        more than 12 months.
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