Illinois Commerce Commission v. Salamie

• Decision Date: 20 October 1977
• Docket Number: No. 76-385,76-385
• Citation: 11 Ill.Dec. 781,54 Ill.App.3d 465,369 N.E.2d 235
• Parties: , 11 Ill.Dec. 781 ILLINOIS COMMERCE COMMISSION, Petitioner-Appellant, v. Nicholas S. SALAMIE, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

Page 235

369 N.E.2d 235

54 Ill.App.3d 465, 11 Ill.Dec. 781

ILLINOIS COMMERCE COMMISSION, Petitioner-Appellant, v. Nicholas S. SALAMIE, Respondent-Appellee.

No. 76-385.

Appellate Court of Illinois, First District, Fourth Division.

Oct. 20, 1977.

James B. Moran, Chicago, for petitioner-appellant.

Adamowski, Newey & Adamowski, Chicago (Paul D. Newey and Robert E. Adamowski, Chicago, of counsel), for respondent-appellee.

ROMITI, Justice.

The issues before the court in this case are (1) whether an Illinois citizen can avoid testifying before the Illinois Commerce Commission as to the Arab boycott simply because he is an honorary consul for Lebanon and (2) whether even if he is not immune from giving testimony, the Illinois court is powerless to enforce the subpoena because section 1351 of Title 28 of the United States Code provides that the federal district court has exclusive jurisdiction of all actions and proceedings against consuls. The trial court ruled that it lacked jurisdiction to decide the immunity issue because the federal statute had preempted all jurisdiction. We reverse, holding (1) that the respondent has no right to refuse to testify except as to matters connected with the exercise of his functions as an honorary consul and that it is for the commission and the court, not the consul, to make the initial determination as to whether the matters appear to be within the scope of his official duties and (2) that despite the broad language of section 1351, it is for the State, not the federal court, to enforce a State subpoena.

Nicholas S. Salamie (Salamie), the respondent in this case, is an American citizen living in LaGrange, Illinois. He came to the United States from Lebanon over thirty years ago. He is a retired pharmaceutical chemist. He is also an honorary consul for Lebanon, for which position he receives no pay. According to certain news stories, which spawned from a speech he made in 1975, Salamie administers the Arab boycott on behalf of twenty different nations. That is, he refuses to legalize shipping invoices for orders from Illinois firms to any of the twenty countries if the firm is blacklisted by the Arab League. The only way a firm can be approved is to agree not to sell or trade with Israel. Because of all the controversy arising in 1975 over American firms illegally yielding to the Arab boycott, the Illinois Commerce Commission decided to investigate whether any motor or rail carriers had engaged in ethnic or religious discrimination against certain of their shippers, in violation of the Illinois Motor Carrier of Property Law, Ill.Rev.Stat.1973, ch. 951/2, par. 18-313, 18-702, and of the Illinois Public Utility Act, Ill.Rev.Stat.1973, ch. 1112/3, par. 38, 44, 52 and 77, and if so, at whose behest. In the course of this investigation, Salamie was subpoenaed to give testimony as to the manner in which the boycott is made effective through the refusal to legalize shipping invoices and the names of persons and entities involved in such refusal of shipments in Illinois. Salamie refused to appear on the grounds the subpoena was void since he was consul for Lebanon. Originally his objection was no more specific than this, but in court he has argued that there was no jurisdiction because he had decided the matters under inquiry were privileged as being within the scope of his functions as honorary consul. Mr. Kabbani, Lebanon's ambassador to the United States, wrote stating that any of Salamie's activities in connection with the Arab boycott would qualify as acts performed in the exercise of his consular functions. The State Department has given no opinion as to whether such activities are protected, but simply noted in a letter dated October 17, 1975 that a consular official should have an opportunity, prior to the instigation of compulsory measures to secure testimony, to present arguments as to whether the evidence falls within the treaty protection. This, apparently, the Illinois Commerce Commission has at all times been willing to provide.

Upon Salamie's refusal to appear before the Commission, the Commission filed a petition for attachment for contempt of court in the circuit court of Cook County to compel him to attend the Commission hearing for the purpose of giving testimony and producing documents referring or relating to the blacklist. It also asked the court to establish guidelines respecting the scope of his testimony and the production of the documents. After hearing arguments the court dismissed for want of jurisdiction on the ground that under section 1351 of the Federal Judicial Code any action must be commenced in the Federal District Court.

I.

The respondent's contention that he has diplomatic immunity under section 252 of chapter 22 of the United States Code is totally without merit. That statute simply grants immunity to ambassadors and public ministers and their domestics. Consuls and vice consuls are not ambassadors or public ministers. (Carrera v. Carrera (1949), 84 U.S.App.D.C. 333, 174 F.2d 496; Auer v. Costa (D.Mass.1938), 23 F.Supp. 22.) Indeed, the United States Constitution in article III refers to ambassadors and other public ministers and consuls. The mention of consuls as a separate designation or classification would hardly have been necessary if they were included in the other terms.

II.

The first issue we must consider, therefore, is whether Salamie can refuse to testify simply because he is a consul for Lebanon. Basically there are two types of consuls, career consuls and honorary consuls. (Article 1(2) of the Vienna Convention on Consular Relations, ¹ hereinafter called the Vienna Convention.) Career consuls are just what their name implies. They are always citizens of the sending state (1 Oppenheim, International Law, 4th Ed. (1928), p. 656; M. Gamboa, Elements of Diplomatic and Consular Practice, A Glossary (1966), p. 127), and, indeed, according to Article 57 of the Vienna Convention they may not, if they are to retain their privileges and immunities, carry on any private gainful occupation in the receiving state. According to the Vienna Convention a career consul has certain privileges and immunities among which are the following:

"Article 41

"Personal inviolability of consular officers

"1. Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.

"2. Except in the case specified in paragraph 1 of this Article, consular officers shall not be committed to prison or liable to any other form of restriction on their personal freedom save in execution of a judicial decision of final effect.

"3. If criminal proceedings are instituted against a consular officer, he must appear before the competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to him by reason of his official position and, except in the case specified in paragraph 1 of this Article, in a manner which will hamper the exercise of consular functions as little as possible. When, in the circumstances mentioned in paragraph 1 of this Article, it has become necessary to detain a consular officer, the proceedings against him shall be instituted with the minimum of delay.

"Article 43

"Immunity from jurisdiction

"1. Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.

"2. The provisions of paragraph 1 of this Article shall not, however, apply in respect of a civil action either:

"(a) arising out of a contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State; or

"(b) by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft.

"Article 44

"Liability to give evidence

"1. Members of a consular post may be called upon to attend as witnesses in the course of judicial or administrative proceedings. A consular employee or a member of the service staff shall not, except in the cases mentioned in paragraph 3 of this Article, decline to give evidence. If a consular officer should decline to do so, no coercive measure or penalty may be applied to him.

"2. The authority requiring the evidence of a consular officer shall avoid interference with the performance of his functions. It may, when possible, take such evidence at his residence or at the consular post or accept a statement from him in writing.

"3. Members of a consular post are under no obligation to give evidence concerning matters connected with the exercise of their functions or to produce official correspondence and documents relating thereto. They are also entitled to decline to give evidence as expert witnesses with regard to the law of the sending State."

As to their archives, Article 33 provides that:

"The consular archives and documents shall be inviolable at all times and wherever they may be."

Basically, an honorary consul is one who is not a career consul. They need not be citizens of the sending state and may even be citizens of the receiving state. For this reason the receiving state may refuse to receive an honorary consul (Article 22(2)) ² since there may be a question of divided loyalties.

Under the Vienna Convention an honorary consul's rights and privileges are far more limited than those of a career consul. Article 58(2) of the Vienna Convention provides that Articles 42 and 43, paragraph 3 of Article 44, and paragraph 1 of Article 55 (hereinafter set forth) apply to honorary consular officers. Thus, by implication, paragraphs 1 and 2 of Article 44 are not applicable. And although certain other privileges are granted to honorary consuls, none are relevant to this case.

As to archives, it is provided in Article 61 of the Vienna Convention that:

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