Imparato v. Spicola, 70--33
| Decision Date | 19 August 1970 |
| Docket Number | No. 70--33,70--33 |
| Citation | 238 So.2d 503 |
| Parties | John J. IMPARATO, John J. Imparato, Jr., Thelma Imparato, Michael Imparato, Sal Forte, Robert E. Cleveland and Charles Rickerson, Petitioners, v. Joseph G. SPICOLA, State Attorney for the Thirteenth Judicial Circuit, Respondent. |
| Court | Florida District Court of Appeals |
Henry Gonzalez, Tampa, for petitioners.
Earl Faircloth, Atty. Gen., Herbert P. Benn, Deputy Atty. Gen., P. A. Pacyna, Asst. Atty. Gen., Tallahassee, for respondent.
Petitioners have applied to this Court for a writ of certiorari to review an order of the Hillsborough County Circuit Court denying their motion to quash subpoenas duces tecum previously served upon them, returnable before the local State Attorney, Hon. Joseph G. Spicola, Jr. 1
On December 11, 1969, the above named petitioners were officers and/or directors of two corporations, Southport Stevedores, Inc. and East Gulf Shipping Corporation. On that date, the State Attorney procured issuance of and service upon petitioners of separate subpoenas duces tecum directing them to appear before the State Attorney at a stated time and date 'to testify and the truth to speak in the above entitled cause', which cause was entitled 'State of Florida v. John Doe'. Each subpoena ordered the petitioner therein named, 'not as an individual', but in his or her corporate capacity, to bring and produce at said time and place--
'any and all records of and pertaining to said corporation(s), including but not limited to bank records, ledger slips, deposit slips, minute books, stock books, general ledger, accounting ledger, cash disbursements ledger, salary sheets, invoices, paid receipts, sales records, manifests and correspondence, from date of inception of corporation(s) up to and including the present date.'
On January 7, 1970, petitioners filed a joint motion to quash the various subpoenas duces tecum, which motion was denied on January 12, 1970. On January 14, 1970, they filed petition here for a writ of certiorari under Article V, § 5(3) of the Constitution, F.S.A. to review and quash the order denying the motion.
Petitioners challenge the validity of the subpoenas duces tecum upon several grounds, viz: (1) failure of the State Attorney to comply with the Florida Rules of Civil Procedure relative to issuance of such subpoenas, (2) the lack of designation of the proper custodian of the corporate records desired, (3) lack of showing of the materiality of the papers and documents described, and (4) the too-broad scope of the attempted compulsory production. We hold against petitioners on all grounds relied upon, except the last one, with which we agree.
We will consider the grounds seriatim.
(1) Applicability of the Florida Rules of Civil Procedure.
The gist of the petitioners' contention here is that the State Attorney was acting for the Attorney General to secure possible evidence in aid of a civil suit contemplated by the Attorney General to effect Court dissolution of the charters of certain corporations suspected of being controlled by the forces of 'organized crime and vice'; but that in the procuring of such subpoenas the provisions of the Florida Rules of Civil Procedure were not complied with.
It is true that the 1969 Florida Legislature, by Session Law Ch. 69--272, added §§ 932.58, 932.59 and 932.60 F.S., which authorized the filing of civil proceedings in the Circuit Court by the Attorney General to revoke the charter of a corporation when the officers or directors of such corporation engage in certain criminal activities therein described which may generally be categorized here as 'organized crime and vice'. One of these two new statutory sections, § 932.60, provides that such proceedings so instituted 'shall be conducted in accordance with the Florida Rules of Civil Procedure'. Rule 1.410(b), 30 F.S.A. provides for issuance of a subpoena for the production of documentary evidence and also provides certain rather stringent safeguards surrounding the issuance of such subpoena, such as authorizing the Court, prior to the return day of the subpoena, to quash or modify the same 'if it is unreasonable and oppressive', and also to require prepayment of reasonable costs 'of producing the books, papers, documents or tangible things'.
But in expounding their theory upon this point, petitioners fail to take cognizance of two vitally applicable factors: (a) there is no showing in the record that the Attorney General had anything to do with procuring the issuance of the instant subpoenas, and (b) the State Attorney in his official capacity had full and plenary authority to activate the subpoenas duces tecum, either independently or at the behest of the Attorney General.
(a) Petitioners, both in the lower Court and here repeatedly assert that the Attorney General actively instigated the issuance of the subpoenas and was 'behind' the move to coerce the production of the documents described therein. Such assertion was denied in the lower Court and is expressly disclaimed in respondent's brief filed here. And no evidentiary support for such representation has been advanced by petitioners. In this situation, we accept as we must the statements of the Attorney General and State Attorney.
[b] However, the point as to participation of the Attorney General in procuring the subpoenas may be disregarded upon much firmer ground. The State Attorney, in his official capacity as such, had plenary authority to instigate the subpoena process.
Concededly, our Florida Constitution and Statutes give to State Attorneys important and responsible powers and duties. F.S. § 27.04 F.S.A. provides that the State Attorney 'shall have summoned all witnesses required on behalf of the state' in a trial or official investigation in which he is involved. He is also 'allowed the process of his court to summon witnesses * * * to testify before him as to any violation of the criminal law upon which they may be interrogated * * *'. We agree thoroughly with everything said by the 4th District Court in State ex rel. Martin v. Mitchell, Fla.App.1966, 188 So.2d 684, with respect to the statutory and common law powers of the State Attorney.
He has been loosely referred to many times as a 'one-man grand jury'. And he is truly that. He is the investigatory and accusatory arm of our judicial system of government, subject only to the limitations imposed by the Constitution, the common law, and the statutes, for the protection of individual rights and to safeguard against possible abuses of the farreaching powers so confided.
In the instant case, the respondent State Attorney officially procured issuance of the subpoenas involved and in doing so he was lawfully exercising a portion of the sovereign power of the State in the discharge of his duties. With respect to the subpoenas he didn't need the Attorney General. And by the same token, any interest that the Attorney General might display in the matter of the subpoenas, or even his active participation therein, could not detract from, nor in anywise affect, the validity or compelling force of the subpoenas. On the right of issuance, the State Attorney is answerable only to himself and his conscience.
(2) Custodian of the Corporate Records Desired.
It is argued that the subpoenas are invalid because the actual custodian of the designated records is not specifically designated. There is no merit to this contention. Each of petitioners is specifically described as an officer or director of either Southport Stevedores or East Gulf. It must be reasonably assumed that one or more of petitioners would be in a position to produce the records desired. And those of petitioners who were not in such position could certainly make return accordingly. Cf. Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771.
(3) Materiality of the Records Desired.
Petitioners contend that some showing should have been made somewhere along the line that the described records were material to an existing or anticipated law suit or investigation. In light of the fact that the subpoenas were issued at the specific direction of the State Attorney in connection with a presumably Attorney in connection with a presumably official capacity, no such showing was necessary. Everything we have hereinbefore stated under Point (1) applies here. The State Attorney, in his official acts as such, is ordinarily not bound by the Florida Rules of Civil Procedure. He derives his authority from the Constitution, the Common Law and the Statutes. Even as the grand jury is immune from the requirement of showing materiality in compelling production of testimony and documentary evidence it desires, so is the State Attorney in his official sphere.
(4) The Broad Scope of the Books, Records and Documents Sought to be Coerced.
This proposition raises grave constitutional questions.
A casual inspection of the subpoenas reveals that they call for the compulsory production of every book, paper, document and record of both Southport and East Gulf from their creation as corporations to the date the subpoenas were issued. This is entirely too broad and allencompassing to satisfy the Fourth Amendment to the Federal Constitution and § 22 of the Declaration of Rights to the Florida Constitution protecting against unreasonable searches and seizures, and the Fifth Amendment and § 12 respectively guaranteeing against compulsory self-incrimination. 2
The Fourth Amendment guarantees 'the right of the people to be secure in their * * * papers and effects against unreasonable searches and seizures * * *' and the Fifth Amendment guarantees that 'no person shall be * * * compelled in any criminal case to be a witness against himself, nor be deprived of * * * property without due process of law * * *'. As stated by Mr. Justice Sutherland in Jones v. Securities and Exchange Commission, 298 U.S. 1, 56 S.Ct. 654, 80 L.Ed. 1015 these rights of the individual are...
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