James v. Powell

Citation26 A.D.2d 295,274 N.Y.S.2d 192
PartiesEsther JAMES, Plaintiff-Judgment-Creditor-Appellant, v. Adam Clayton POWELL, Jr., Defendant-Judgment-Debtor-Respondent, and YvettePowell, Defendant-Judgment-Debtor.
Decision Date25 October 1966
CourtNew York Supreme Court Appellate Division

R. Rubin, New York City, for plaintiff-judgment-creditor-appellant.

H. R. Williams, New York City, for defendant-judgment-debtor-respondent.

Before BOTEIN, P.J., and McNALLY, STEVENS, STEUER and BASTOW, JJ.

STEUER, Justice.

Plaintiff judgment creditor moved to punish the judgment debtor for contempt for a wilful failure to obey a subpoena in supplementary proceedings. As the long and ugly record in this matter shows, this failure to obey is consistent with the debtor's cynical refusal to honor his own promises together with a total disregard of any and all process that has been served upon him. However, much as this conduct may be deplored, if, upon this particular application, he acted within his rights, he is not subject to sanction. On the other hand, if his conduct is not legally excusable, it is time for this sorry spectacle to be terminated by definite action.

The application seeks punishment for both a civil and criminal contempt. The debtor does not dispute that there is jurisdiction to punish for a civil contempt (while not conceding that a proper case for such sanction was made out) but disputes jurisdiction to punish for criminal contempt. We believe the respondent's contention in this respect to be sound. The opening words of Judiciary Law, section 750 provide: 'A court of record has power to punish for a criminal contempt, a person guilty of any of the following acts, and no others.' There follow some eight specific situations in which the power may be employed. Section 753 deals with the power to punish for civil contempt. Here, again, are listed eight specific situations. Among these is: '5. A person subpoenaed as a witness, for refusing or neglecting to obey the subpoena, or to attend, or to be sworn, or to answer as a witness.' This should be contrasted with the same numbered subdivision of section 750, which reads: '5. Contumacious and unlawful refusal to be sworn as a witness; or, after being sworn, to answer any legal and proper interrogatory.' Patently the situation here involved--failure to respond to a subpoena--is covered by section 753, the section on civil contempt, in direct terms and is not so covered in section 750, dealing with criminal contempt. Where the legislature has specified the instances to which criminal and civil contempt are respectively applicable the inclusion of one instance under one heading and its omission under another leaves no room for interpretation. Failure to obey a subpoena in civil proceedings is therefore a civil but not a criminal contempt.

As stated, respondent does not deny jurisdiction for civil contempt. His defense to this phase of the application is that his refusal to obey the subpoena was not wilful. Factually he sets out--what is not disputed--that the subpoena was both served upon him and made returnable on a date when Congress was in session. It is not entirely clear whether he contends that, being a Representative, he is excused during the session or whether he believed himself to be immune from process and hence did not willfully disobey the process. We will consider the question as if both points are raised.

Article 1, section 6 of the United States Constitution gives to Senators and Representatives immunity from arrest (except in certain cases not material here) during attendance at sessions and in going to and returning therefrom. The immunity is from civil arrest (see Williamson v. United States, 207 U.S. 425, 436, 28 S.Ct. 163, 52 L.Ed. 278), but there is no exemption from civil process short of arrest (Long v. Ansell, 293 U.S. 76, 55 S.Ct. 21, 79 L.Ed. 208). To elaborate on the above, a member of Congress must respond to civil process and is liable for all consequences of disregarding the same except that he cannot be subjected to arrest during a session of Congress. Consequently, there is no immunity from the service of a subpoena. 'A subpoena is not an arrest, though there are circumstances in which disobedience to its command may give rise to an arrest' (People ex rel. Hastings v. Hofstadter, 258 N.Y. 425, 429, 180 N.E. 106, 107, 79 A.L.R. 1208). Whether or not the fact that a subpoena may, if disobeyed, give rise to an arrest brings it within the spirit of the constitutional exemption has not been authoritatively passed upon, and differing views have been expressed. As regards the exemption to members of the Congress, the only judicial expression discovered is that the possibility of imprisonment creates no exemption. It was observed that a body attachment would not be involved if the subpoena was obeyed and if disobeyed some other form of sanction could well be employed (United States v. Cooper, 4 Dall. 341, 1 L.Ed. 859). We believe that the foregoing is the proper approach, and the conclusion that there is no exemption from the process necessarily follows. The purpose of the exemption is not for the benefit or even the convenience of the individual legislators. It is to prevent interference with the legislative process. And it prevents the judicial branch of the government from effecting such an interference by restricting the power of the courts. However it is the broad principle that any such restriction of the judicial branch is limited to the instances where the exercise of judicial power would constitute an actual interference with the legislative or executive branches as distinct from one that is theoretical or conditional (People ex rel. Broderick v. Morton, 156 N.Y. 136, 50 N.E. 791, 41 L.R.A. 231). It may be argued, however, that attendance as a witness in itself may interfere with attendance at the sessions of Congress and hence come within the spirit of the exemption, if not its letter. This argument depends on the assumption that the court in the face of a showing of such actual interference will fail to make suitable...

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6 cases
  • James v. Powell
    • United States
    • New York Supreme Court
    • October 27, 1966
    ...VIII of this Court. I shall then also hear counsel as to the effect thereon of the decision of the Appellate Division in James v. Powell, 26 A.D.2d 295, 274 N.Y.S.2d 92, rendered October 25, ...
  • People v. Mancuso
    • United States
    • New York Supreme Court — Appellate Division
    • October 27, 1966
    ... ... Thomas E. TAYLOR, Appellant ... Supreme Court, Appellate Division, Fourth Department ... Oct. 27, 1966 ...         [26 A.D.2d 293] James" V. Philippone, Rochester, for appellant Mancuso ...         Salvatore J. Panzarella, Rochester, for appellant Benny Morganti ...      \xC2" ... ...
  • Evans v. Punter
    • United States
    • New York Supreme Court
    • May 2, 2023
    ... ... to obey a subpoena in civil proceedings is ... a civil but ... not a criminal contempt" (James v Powell, 26 ... A.D.2d 295, 296 [1st Dept 1966] [analyzing difference between ... criminal contempt covered by Judiciary Law § 750 and ... civil ... ...
  • James v. Powell
    • United States
    • New York Supreme Court
    • November 4, 1966
    ...I do not deem it a difficult matter in the least to determine the effect of the decision and opinion of the Appellate Division. 26 A.D.2d 295, 274 N.Y.S.2d 192, dated October 25, 1966. In my view, each of you gentlemen has sought to superimpose upon that decision and opinion a strained, unr......
  • Request a trial to view additional results

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