Groppi v. Froehlich

• Decision Date: 08 April 1970
• Docket Number: No. 69-C-235.,69-C-235.
• Citation: 311 F. Supp. 765
• Parties: Father James E. GROPPI, Plaintiff, v. Harold FROEHLICH, individually and as Speaker of the Wisconsin Assembly and as a representative of a class known as "Members of the Wisconsin Assembly"; James Boll, individually and as District Attorney of Dane County, Wisconsin; Vernon T. Leslie, individually and as Sheriff of Dane County, Wisconsin, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

311 F. Supp. 765

Father James E. GROPPI, Plaintiff, v. Harold FROEHLICH, individually and as Speaker of the Wisconsin Assembly and as a representative of a class known as "Members of the Wisconsin Assembly"; James Boll, individually and as District Attorney of Dane County, Wisconsin; Vernon T. Leslie, individually and as Sheriff of Dane County, Wisconsin, Defendants.

No. 69-C-235.

United States District Court, W. D. Wisconsin.

April 8, 1970.

Percy L. Julian, Jr., Madison, Wis., James M. Shellow, Gilda B. Shellow, William M. Coffey, Robert H. Friebert, Milwaukee, Wis., for plaintiff.

Sverre O. Tinglum, Asst. Atty. Gen., David Hanson, Asst. Atty. Gen., Madison, Wis., for defendants.

Before FAIRCHILD, Circuit Judge, and DOYLE and REYNOLDS, District Judges.

JAMES E. DOYLE, District Judge:

This is an action in which the plaintiff attacks the validity, under the Constitution of the United States, of § 13.26 and § 13.27 of the Wisconsin Statutes, and in which he also alleges that §§ 13.26 and 13.27, even if valid, are being invoked for the unlawful purpose of depriving him of certain rights secured to him by the Constitution of the United States. The plaintiff seeks a judgment declaring that §§ 13.26 and 13.27 violate the Constitution of the United States, a preliminary and permanent injunction restraining the defendants from enforcing or executing §§ 13.26 and 13.27, and an injunction restraining the defendants from refusing to release plaintiff forthwith from imprisonment.

Findings

Defendants have filed their answer to the complaint herein, and a hearing has been held by the three-judge court on the merits of the complaint. Upon the basis of the entire record herein, we find:

On October 1, 1969, the Assembly, one of two houses of the Wisconsin state legislature, passed the following resolution (entitled "1969 Spec.Sess. Assembly Resolution"):

Citing James E. Groppi for contempt of the Assembly and directing his commitment to the Dane county jail.

In that James E. Groppi led a gathering of people on September 29, 1969, which by its presence on the floor of the Assembly during a meeting of the 1969 regular session of the Wisconsin Legislature in violation of Assembly Rule 10 prevented the Assembly from conducting public business and performing its constitutional duty; now, therefore, be it

Resolved by the Assembly, That the Assembly finds that the above-cited action by James E. Groppi constituted "disorderly conduct in the immediate view of the house and directly tending to interrupt its proceedings" and is an offense punishable as a contempt under Section 13.26(1) (b) of the Wisconsin Statutes and Article IV, Section 8 of the Wisconsin Constitution and therefore:

(1) Finds James E. Groppi guilty of contempt of the Assembly; and

(2) In accordance with Sections 13.26 and 13.27 of the Wisconsin Statutes, orders the imprisonment of James E. Groppi for a period of 6 months, or for the duration of the 1969 regular session, whichever is briefer, in the Dane county jail and directs the sheriff of Dane county to seize said person and deliver him to the jailer of the Dane county jail; and, be it further

Resolved, That the Assembly directs that a copy of this resolution be transmitted to the Dane county district attorney for further action by him under Section 13.27(2) of the Wisconsin Statutes; and, be it further

Resolved, That the attorney general is respectfully requested to represent the Assembly in any litigation arising herefrom.

A copy of the Assembly resolution was subsequently served upon petitioner and he was imprisoned in the Dane County jail upon the authority of the said resolution. Prior to being served with a copy of the resolution and imprisoned, petitioner was afforded no specification of the charge against him, no notice of any kind, and no hearing of any kind. Thereafter, petitioner unsuccessfully sought to obtain his release by commencing various actions and proceedings in the state courts and in this court. The Circuit Court for Dane County dismissed petitioner's application for a writ of habeas corpus. The Wisconsin Supreme Court thereafter denied petitioner's application for a writ of habeas corpus, and denied a motion for rehearing. State ex rel. Groppi v. Leslie, 44 Wis.2d 282, 171 N.W.2d 192 (1969). Plaintiff also filed a petition for habeas corpus in this court. The petition has been granted today in Groppi v. Leslie, W.D.Wis., 311 F.Supp. 772.

Wisconsin Constitution and Statutes

Article IV, Section 8, Wisconsin Constitution, provides, in part:

"Each house may determine the rules of its own proceedings, punish for contempt and disorderly behavior * * *."

Section 13.26, Wisconsin Statutes, provides, in part:

"(1) Each house may punish as a contempt, by imprisonment, a breach of its privileges or the privileges of its members * * * for * * *:

"* * *

"(b) Disorderly conduct in the immediate view of the house and directly tending to interrupt its proceedings. * * *

"(2) The term of imprisonment a house may impose under this section shall not extend beyond the same session of the legislature."

Section 13.27, Wisconsin Statutes, provides:

"(1) Whenever either house of the legislature orders the imprisonment of any person for contempt under s. 13.26 such person shall be committed to the Dane county jail, and the jailer shall receive such person and detain him in close confinement for the term specified in the order of imprisonment, unless he is sooner discharged by the order of such house or by due course of law.

"(2) Any person who is adjudged guilty of any contempt of the legislature or either house thereof shall be deemed guilty also of a misdemeanor, and after the adjournment of such legislature, may be prosecuted therefor in Dane county, and may be fined not more than $200 or imprisoned not more than one year in the county jail."

Contentions of Parties

The question of the lawfulness of plaintiff's confinement pursuant to the Assembly resolution of October 1 has been determined by the single-judge court in the companion habeas corpus proceeding (311 F.Supp. 772).¹ We confine ourselves to the issues related to a possible "second confinement," under the provisions of § 13.27(2), Wis.Stat.

With respect to these issues, plaintiff contends that the defendants, acting under color of Wisconsin law, threaten to deprive him of rights, privileges, or immunities secured to him by the Constitution of the United States. 42 U.S.C. § 1983. He alleges that he has attempted to express his ideas and beliefs on public issues of vital concern; that he has sought to exercise rights such as freedom of speech, assembly, association and petition for a redress of grievances, all guaranteed under the First and Fourteenth Amendments to the United States Constitution; and that defendants threaten to deprive him of these rights by the application of §§ 13.26 and 13.27, Wis.Stats., and the Assembly resolution of October 1, which statutes and resolution, plaintiff contends, are unconstitutional on their face or as applied, or both. Plaintiff contends that §§ 13.26 and 13.27 and the resolution are vague and indefinite; that they are overbroad and encompass clearly protected activity; and that they are susceptible of sweeping and improper application to protected activity.

Plaintiff also contends that §§ 13.26 and 13.27 and the Assembly resolution violate the prohibition against bills of attainder set forth in Article I, § 10, clause 1, of the United States Constitution; violate the principle of separation of powers underlying both the United States and Wisconsin Constitutions; violate the Sixth and Fourteenth Amendments because they provide that plaintiff may be punished without the right to a trial by jury and without the right to assistance of counsel, compulsory process for the attendance of witnesses, confrontation of witnesses, and the right to be informed of the nature of the charge against him; violate the Fifth and Fourteenth Amendments because they permit plaintiff to be placed twice in jeopardy for the same alleged offense; and violate the Thirteenth Amendment because they make plaintiff a slave and an involuntary servant of the state without being duly convicted of a crime. He also contends that said sections and the resolution have been and will be enforced for the unlawful purpose of intimidating and harassing him in the exercise of his First Amendment rights.

Defendants generally deny all of these contentions.

Jurisdiction

The Assembly resolution "directs that a copy of it be transmitted to the Dane County district attorney for further action by him under Section 13.27(2). * * *" Section 13.27(2) provides that any person "who is adjudged guilty of any contempt of the legislature or either house thereof shall be deemed guilty also of a misdemeanor, and after the adjournment of such legislature, may be prosecuted therefor in Dane county, and may be fined not more than $200 or imprisoned not more than one year in the county jail." The resolution does not direct the Dane County district attorney to prosecute plaintiff; it authorizes him to take "further action" under § 13.27(2). Section 13.27(2) in turn allows the district attorney to decide whether to prosecute plaintiff, since the section states only that he "may be prosecuted". However, the resolution (by which the Assembly "finds" plaintiff guilty of contempt), and § 13.27(2), present a direct and real threat to plaintiff, in view of the Assembly's request. The controversy is justiciable. Jurisdiction is present. 28 U.S.C. § 1343(3).

Procedural Due Process

Plaintiff contends that under § 13.27(2) one who is "adjudged guilty" of a contempt of the legislature "shall be deemed guilty also of a misdemeanor"; that plaintiff has been "adjudged guilty" by the Assembly and is presently "deemed guilty also of a misdemeanor"; that he may be "prosecuted therefor" in a court by a complaint which alleges simply that he has been "adjudged guilty" by the...