Bishop v. Montante

• Decision Date: 27 January 1976
• Docket Number: No. 9,O,9
• Citation: 237 N.W.2d 465,395 Mich. 672
• Parties: Donald E. BISHOP, Plaintiff-Appellee, v. Honorable James MONTANTE, Judge of the Wayne County Circuit Court, Defendant-Appellant. ct. Term 1975. 395 Mich. 672, 237 N.W.2d 465
• Court: Michigan Supreme Court

Page 465

237 N.W.2d 465

Donald E. BISHOP, Plaintiff-Appellee, v. Honorable James MONTANTE, Judge of the Wayne County Circuit

Court, Defendant-Appellant.

No. 9, Oct. Term 1975.

395 Mich. 672, 237 N.W.2d 465

Supreme Court of Michigan.

Jan. 27, 1976.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Solomon H. Bienenfeld, First Asst. Atty. Gen., Charles D. Hackney, Asst. Atty. Gen., State Affairs Div., Lansing, for plaintiff-appellee.

Marc Stickgold, Wayne State University Law School, Clinical Advocacy Program, Richard Soble, Goodman, Eden, Millender, Goodman & Bedrosian, Marilyn Miller Mosier, Center for Urban Law and Housing (Wayne County Neighhorhood Legal Services), Detroit, George L. Corsetti, Michigan, Legal Services, Detroit, for defendants-appellants.

FITZGERALD, Justice.

Defendant Wayne Circuit Judge appeals from an order of the Court of Appeals quashing a subpoena. The subpoena directed plaintiff, a state senator, to give a pretrial discovery deposition and to produce certain documents in connection with a civil action which had been assigned to defendant. The issue before us is whether, on the facts of this case, we should judicially construe an exception for intra-session adjournments to this state's constitutional provision granting senators and reprsentatives immunity 'from civil arrest and civil process During sessions of the legislature and for five days next before the commencement and after the termination thereof. . . .' ¹ (Emphasis supplied.)

The action out of which arose the instant complaint for superintending control was brought by one Walter Benkert and a nonprofit corporation, Michigan Association for Consumer Protection, for themselves and all persons similarly situated. Named as defendants in that suit were the Michigan State Police, its Director, Col. George Halverson, and Governor William G. Milliken. The complaint alleged that the state police, acting at the request of a state legislator, ² had conducted investigations of the named plaintiffs. It requested that such investigations be permanently enjoined, and that the fruits thereof be produced before the court for destruction. Defendants therein, through the attorney general, answered the complaint, admitting the following: that the state police had been contacted by a state legislator to conduct an investigation of the named plaintiffs; that the scope of the Benkert investigation included his background and relationship with MACP; that the scope of the investigation of MACP included its background, finances, objectives and membership. Defendants pleaded no contest to the allegation that the state police had exceeded its statutory authority in conducting these investigations.

In connection with the above action, on August 30, 1974, the plaintiffs therein caused to be served on plaintiff Bishop a subpoena directing him to appear at a certain law office at 11:30 a.m. on September 5, 1974, to testify and produce documents. On September 5, plaintiff Bishop filed a motion supported by affidavit in the trial court requesting that the subpoena be quashed on the grounds Inter alia that he was privileged from civil process. The motion was denied by defendant who reasoned that, although the Legislature had convened on the second Wednesday in January 1974 and had not as of the date of the purported service adjourned its regular session sine die, nevertheless the Senate had recessed from July 13 until September 17. Consequently, it was defendant's opinion that plaintiff was 'on free time' and should be available to testify.

In quashing the subpoena, the Court of Appeals cited Const.1963, art. 4, § 11, and Auditor General v. Wayne Circuit Judge, 234 Mich. 540, 208 N.W. 696 (1926). In that case, it was unsuccessfully argued on behalf of the defendant Wayne Circuit Judge that the post-judgment writ of garnishment did not subject Representative Culver to civil process since the writ was served on the State, sought only to reach Culver's property in the hands of the State, and compelled him to do nothing. This argument was rejected and the policy underlying the immediate predecessor of article 4, § 11, ³ was articulated as follows:

'This is a too narrow view of the situation. The idea back of the constitutional provision was to protect the legislators from the trouble, worry, and inconvenience of court proceedings during the session, and for a certain time before and after, so that the state could have their undivided time and attention in public affairs. Mr. Culver, as principal defendant, had the right to make a defense to the garnishee proceeding. In the present case the garnishee proceeding succeeded in doing just what the constitutional provision was created to avoid. It harassed the legislator, drove him to make a defense in the garnishee proceeding, and deprived him of the means of subsistence pending the balance of the session. We think the case clearly comes within the constitutional inhibition.' 234 Mich. 541--542, 208 N.W. 697.

In the case at bar, rather than argue that plaintiff is not being subjected to civil process, it is contended that the privilege should not apply during intra-session adjournments. In actuality, the term 'adjournment' in this sense more properly partakes of the nature of a 'recess' in the legislative session.

Article 4, § 13, of our Constitution, in pertinent part, reads:

'The legislature shall meet at the seat of government on the second Wednesday in January of each year at twelve o'clock noon. Each regular session shall adjourn without day, on a day determined by concurrent resolution, at twelve o'clock noon.' (Emphasis added.)

We are of the opinion that the word 'sessions' in article 4, § 11, includes the regular session as defined in article 4, § 13, and the special session of article 4, § 28; article 5, § 15. Thus, we decline the invitation to define 'sessions' as meaning only 'working sessions' when the Legislature is actually sitting.

Constituent contact, research, committee assignments, and other legislative business are not always confined to days when the Legislature is actually sitting. Under defendant's 'free time' exception, the legislator asserting the privilege could spend as much time and effort convincing...