In re Slattery

• Decision Date: 04 January 1945
• Docket Number: No. 397.,397.
• Citation: 17 N.W.2d 251,310 Mich. 458
• Parties: In re SLATTERY.
• Court: Michigan Supreme Court

310 Mich. 458

17 N.W.2d 251

In re SLATTERY.

No. 397.

Supreme Court of Michigan.

Jan. 4, 1945.

Certiorari to Circuit Court, Ingham County; Leland W. Carr, Judge.

In the matter of Francis P. Slattery, petitioner, who was examined by the circuit judge under the one man grand jury statutes. Having refused to give satisfactory answers to certain questions, petitioner was adjudged in contempt and sentenced to jail, and he petitions for habeas corpus and ancillary writ of certiorari.

Petitions dismissed and petitioner remanded to custody.Before the Entire Bench.

Wm. Henry Gallagher, of Detroit, and Harry D. Hubbard, of Lansing, for petitioner.

Kim Sigler, Special Prosecutor and Asst. Pros. Atty., Ingham County, Victor Anderson, Pros. Atty., Ingham County, and H. H. Warner, Special Counsel, all of Lansing, for respondent

Fred R. Walker, of Detroit, amicus curiae.

Pierce, Planck & Ramsey, of Lansing, amicus curiae.

BUTZEL, Justice.

In accordance with section 3 et seq. of chapter 7 of the Code of Criminal Procedure of the State of Michigan, the same being section 17217 et seq., 3 Comp.Laws 1929, Stat.Ann. § 28.943 et seq., the Honorable Leland W. Carr, a circuit judge of the county of Ingham, required the attendance of Francis P. Slattery, referred to herein as petitioner, as a witness to testify in regard to certain crimes that were alleged in a formal complaint to have been committed within the jurisdiction of the Ingham county circuit court. Petitioner makes no objection to the sufficiency of the complaint or the proceedings that led up to his examination. An examination by the circuit judge, under the statutes above cited, is similar to that of a grand jury. It is popularly known as a ‘one man grand jury’ proceeding. Even though this term may be a misnomer, it nevertheless is descriptive and we refer to the examination as that of a ‘one man grand jury.’ These statutes provide for the summoning of witnesses and their examination, and that any witness neglecting or refusing to answer questions shall be guilty of contempt punishable by a fine not to exceed $100 or imprisonment in the county jail not to exceed 60 days, or both, in the discretion of the court. They further provide that no witness shall be required to answer questions which might tend to incriminate himself unless he is granted immunity, et cetera. According to the brief filed by petitioner he was a vice president of the Michigan National Bank. He spent some months in Lansing lobbying against a bank bill, the purpose of which, if enacted, was to restrict chain banking generally in the State of Michigan. It is not claimed that petitioner was a professional lobbyist, or that he ever lobbied for any other measure. While thus engaged in lobbying as to this particular bill, he repeatedly contacted various members of the legislature in Lansing. In the course of his examination, to which later we shall refer with more particularity, petitioner testified that he could not remember or recall a conversation with a certain legislator who, in order to retain the secrecy of the proceedings except as it becomes necessary to divulge them, is described as ‘A’ in the return of the judge. The gist of the conversation was to the effect that ‘A’ made an offer to petitioner that he would change his vote for a consideration. The approximate time when, and the definite place where, the conversation took place and the real name of ‘A’ were set forth in the questions to petitioner. He refused to affirm or deny that the conversation took place and repeatedly asserted words to the effect that he had no memory of such a conversation and finally in his memory ‘it didn't happen.’ After futile efforts to obtain a more satisfactory answer, and an answer of Yes or No to the particular question, the judge adjourned the one man grand jury proceedings and, in open court, adjudged petitioner guilty of contempt and sentenced him to serve 60 days in the county jail in accordance with 3 Comp. Laws, 1929, § 17219 (Stat. Ann. § 28.945). Petitioner thereupon filed a petition for habeas corpus and ancillary writ of certiorari. The judge, as part of his return, filed a transcript of such portion of the testimony as he deemed sufficient to show the grounds for the contempt order. Obviously because of the secrecy of the proceedings, as provided by law, the transcript of the entire proceedings was not included in the return.

Petitioner assails the constitutionality of the ‘one man grand jury statutes,’ claiming that they impose non-judicial duties on a judge, and that one cannot be held in contempt if he testifies before a non-judicial body. Petitioner's counsel, as well as those who appear as amici curiae, base their claims largely on the case of In the Matter of Richardson, 247 N.Y. 401, 160 N.E. 655, 658, the opinion of which was written by the late Justice Cardozo in his characteristically learned and lucid style. We are much impressed but not bound by the opinion. Some of the statements therein, if wrested from the context, might be applicable to the instant case, were the issues the same. The sole issue in the Richardson case was whether a New York statute which provided that the governor of New York, in a proceeding before him for the removal of a public officer, might as governor take the evidence, or at his option direct that the taking of proofs be delegated to a judicial officer or commissioner for the purpose of taking testimony and reporting his findings to the governor. The law was held to be unconstitutional on the ground that it was a delegation of the administrative powers to the judiciary. It is axiomatic that under our Constitution and the American system of jurisprudence, the executive, legislative and judicial departments of the government must be kept separate and one department cannot delegate its duties to the other. In discussing the cases where duties in addition to holding court were imposed upon the judge, he stated: ‘Superficial analogies are suggested, but superficial only. A magistrate before whom there is laid an information of the commission of a crime may take the depositions of the informant and prosecutor and of any witnesses produced. Code Crim. Pro. § 148. His inquiry is judicial. If he finds that a crime has been committed and that there is reasonable cause to believe that the defendant has committed it, he issues a warrant of arrest. Code Crim. Pro. § 150, subd. 2. He does not keep to himself the knowledge thus acquired, but embodies it in depositions which are exhibited to the defendant like any other public record.’ He stated, so that the decision would not be misapprehended, its tenor was to deny the power of the legislature to charge a justice of the Supreme Court with the duties of a prosecutor in aid of the executive. We might add that under the laws of this State, hereinbefore referred to, the testimony is kept secret, but if the judge finds that a crime has been committed, he orders a warrant to be issued, and an examination held in open court before a magistrate and, if probable cause is shown, the accused is bound over for trial in the proper court. It will be noted that under the Constitution of the State of New York, a grand jury investigation precedes a criminal complaint. This is likewise true in the Federal courts, in accordance with Article 5 of the Amendments to the Constitution of the United States. The Constitution of the State of New York contains no similar provision to that of the State of Michigan which makes the circuit judge a conservator of the peace.

In Cobbledick . United States, 309 U.S. 323, 60 S.Ct. 540, 542, 84 L.Ed. 783: ‘The Constitution itself makes the grand jury a part of the judicial process. It must initiate prosecution for the most important federal crimes. It does so under general instructions from the court to which it it attached and to which, from time to time, it reports its findings. The proceeding before a grand jury constitutes ‘a judicial inquiry’, Hale v. Henkel, 201 U.S. 43,50 S.Ct. 370, 375,50 L.Ed. 652, of the most ancient lineage. See Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771, Ann.Cas.1912D, 558. The deration of its life, frequently short, is limited by statute. It is no less important to safeguard against undue interruption the inquiry instituted by a grand jury than to protect from delay the progress of the trial after an indictment has been found. Opportunity for obstructing the ‘orderly progress' of investigation should no more be encouraged in one case than in the other.’

The statutes of this State, invoked in the instant case, serve the same purpose as the constitutional provisions in regard to grand juries in other jurisdictions. They do not impose non-judicial duties upon the judiciary and are in strict conformity with the Constitution of this State which in Article 7, under the heading of ‘Judicial Department,’ makes due provision in regard to judicial power. In section 18 of Article 7, under the heading ‘Conservators of the peace,’ it is stated that justices of the Supreme Court, circuit judges and justices of the peace shall be conservators of the peace within their respective jurisdictions. Certain statements in the case of Allor v. Wayne County Auditors, 43 Mich. 76, 4 N.W. 492, were in a measure overruled and must be restricted by the holding in the subsequent case of Averill v. Perrott, 74 Mich. 296, 41 N.W. 929, in which, speaking of conservators of the peace, we said: ‘As such conservators, they had, when the constitution took effect, the authority to apprehend offenders against the criminal laws of the state, and to hold examinations, and commit, bind over, or hold to bail, as well as other authority exercised by conservators of the peace.’

Petitioner claims that the office of a conservator of the peace is a different position from that of a judicial officer. Under section 9 of Article 7 of our Constitution, a circuit judge would be ineligible...