Pollard v. Roberts

Decision Date11 April 1968
Docket NumberNo. LR-67-C-143.,LR-67-C-143.
Citation283 F. Supp. 248
PartiesOdell POLLARD, Individually and as Chairman of the State Committee of the Republican Party of Arkansas; Charles Bernard, Individually and as Treasurer of the State Committee of the Republican Party of Arkansas; Howard Vance, Individually and as Secretary of the State Committee of the Republican Party of Arkansas; the Republican Party of Arkansas, an unincorporated association, Plaintiffs, v. Russell C. ROBERTS, Individually and as Judge of the Circuit Court of Faulkner County, Arkansas; Jeff Mobley, Individually and as Prosecuting Attorney of Faulkner County, Arkansas; the First National Bank in Little Rock, a corporation doing business under the banking laws of the State of Arkansas, Defendants.
CourtU.S. District Court — Eastern District of Arkansas

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Hartman Hotz and Robert R. Wright, Fayetteville, Ark., Bill Penix, of Penix & Penix, Jonesboro, Ark., for plaintiffs.

Joe Purcell, Atty. Gen., by Don Langston, Asst. Atty. Gen., W. J. Smith, Little Rock, Ark., and Jeff Mobley, pro se, for defendants.

Before BLACKMUN, Circuit Judge, and HENLEY and HARRIS, District Judges.

HENLEY, District Judge.

This suit in equity, which has been heard by a statutory court of three judges, 28 U.S.C.A. §§ 2281 and 2284, presents the question of whether the Arkansas statute which confers the subpoena power on Arkansas prosecuting attorneys1 violates the Constitution of the United States.

Plaintiffs in the case are the Chairman, Secretary, and Treasurer of the Republican Party of Arkansas, an unincorporated association which is a branch of the National Republican Party in the United States, and the Republican Party of Arkansas itself (hereinafter sometimes called the Party).

The principal defendant is Hon. Jeff Mobley, Prosecuting Attorney of the Fifth Judicial Circuit of Arkansas, which includes Faulkner County. Prosecutor Mobley, hereinafter at times called simply the defendant, has issued and is attempting to enforce certain subpoenas duces tecum directed to the plaintiffs and to The First National Bank in Little Rock, Arkansas, calling for the production for inspection and copying the records of a certain checking account established by the Party in 1966 in the name of Mrs. Wanda Tudor in the Bank which has been mentioned.2 Those records, if produced, would reveal information not only as to sums of money contributed to the Party during the 1966 campaign3 and deposited in the Tudor account along with information as to disbursements from that account, but also would identify individual contributors from all over the State whose contributions were deposited in the account in question and would reveal the amounts of individual contributions.

The defendant claims that he is conducting a bona fide investigation of suspected violations of the Arkansas election laws allegedly committed on behalf of Republican candidates during the 1966 campaign, that the records which he is seeking to have produced contain or may contain relevant evidence with respect to such violations and that production of the records is necessary if the investigation is to be carried out properly.

Plaintiffs say that the investigation which the defendant claims to be making is not genuine or in good faith but is mere harassment of the Party and amounts to an abuse of process; that the design of the defendant is not to obtain information which would legitimately advance an investigation of election law violations but rather to injure the Party in Arkansas and inhibit its growth; that the production of the records of what may be called the Tudor account and the publication of the information contained therein would result in irreparable injury to the Party and to its contributors and workers; and that plaintiffs have federally protected rights not to disclose that information or have it disclosed by the Bank, which rights should be vindicated in this action by the Court's enjoining further attempts to enforce the subpoenas. Plaintiffs contend that the statute in question is unconstitutional both as written and in application.

Federal subject matter jurisdiction is established, and the Court and counsel are satisfied that the case is a proper one for a three judge court. The case has been submitted on the pleadings, certain evidentiary material, memorandum briefs, and oral arguments. There is no real dispute about the facts, although the significance of those facts, the implications thereof, and the inferences to be drawn therefrom are sharply disputed.

During the 1966 campaign certain checks in comparatively small amounts were drawn on the Tudor account in favor of persons residing in Faulkner County and other counties in the Fifth Circuit. The faces of the checks indicated that they were drawn in payment for campaign services such as knocking on doors, ringing doorbells, and other activities designed to "get out the vote" for Republican candidates.

The existence of those checks came to the attention of the Prosecuting Attorney who commenced an investigation to determine whether there had been violations of the Arkansas general election laws, including the statute which makes it a felony to buy votes in a general election, Ark.Stats.Ann., § 3-1415. That investigation was at least accelerated in March 1967 when the Arkansas Senate adopted a resolution calling on the defendant to make or press the investigation in question.

Ostensibly for reasons of economy the defendant decided to proceed under Act 160 of 1937 rather than to ask the Circuit Court to impanel a grand jury to conduct the investigation. Defendant construed the statute as authorizing him to issue subpoenas duces tecum and also as authorizing him to sit as a "one man grand jury," examining witnesses in camera and in the absence of counsel.

Two subpoenas duces tecum calling for the records of the Tudor account were issued; one was directed to Mrs. Tudor, and the other was directed to the Bank. The subpoena directed to Mrs. Tudor was designed to bring about the production of the Party's own records, but no subpoena was directed to the Party itself or to any responsible officer of the Party. It should be said at this point that the records of the Party and the records of the Bank covering the Tudor account reflect essentially the same information so that if one set of records is produced, it really makes no difference to the defendant whether the other set is forthcoming.

In addition to the subpoenas duces tecum just mentioned, the defendant issued ordinary witness subpoenas for a number of persons named as payees in the checks drawn on the Tudor account, including one Lucy Gill. Defendant proposed to question those witnesses in the absence of their attorney.

Mrs. Tudor and the Bank resisted the subpoenas in the State courts, and Mrs. Gill and others similarly situated resisted being questioned by the defendant in the absence of their attorney. The litigation in the State courts produced three opinions of the Supreme Court of Arkansas, all handed down on June 5, 1967. Tudor v. Roberts, Judge, 242 Ark. 795, 415 S.W. 2d 557; Gill v. State ex rel. Mobley, Prosecuting Attorney, 242 Ark. 797, 416 S.W.2d 269; First National Bank in Little Rock v. Roberts, Judge, 242 Ark. 912, 416 S.W.2d 316.

In resisting the subpoena served on her Mrs. Tudor pointed out that she was no longer an employee of the Party, was not in possession of the records of the Tudor account and could not produce them. Her explanation was not satisfactory to the Circuit Court, and she was adjudged in contempt. The Arkansas Supreme Court reviewed on certiorari the judgment of the Circuit Court and reversed it; that ended the affair as far as Mrs. Tudor was concerned.4

In the Gill case the Supreme Court held that Prosecutor Mobley did not have the right to question witnesses in the absence of counsel if the witnesses insisted on having counsel present while being interrogated.

In resisting the subpoena served on it the Bank acted on its own account and in its own interest; it did not purport to represent the Party, nor did it claim that to produce the records would violate any rights of the Party or of Party members or contributors. Cf. Kilgore National Bank v. Federal Petroleum Board, 5 Cir., 209 F.2d 557. The Supreme Court of Arkansas rejected the contentions of the Bank and held that the Bank would have to produce the records if Faulkner County was able and willing to pay the expenses of locating and reproducing relevant documents. The Bank moved for rehearing, but its motion was denied in July 1967. The mandate of the Supreme Court was duly issued and filed.

On September 15, 1967, defendant notified the Bank that the County was willing to pay the expenses which have been mentioned, and that he was renewing his demand for the production of the Bank's records. On the same day defendant issued new subpoenas duces tecum calling for production of the Party's records covering the Tudor account; those subpoenas were directed to the plaintiffs in this case.

The renewed efforts of defendant to get the records brought about more litigation in both the Circuit Court of Faulkner County and in the Supreme Court of Arkansas, but did not result in any further published opinions of the Supreme Court. As far as the Party records were concerned, the Arkansas Supreme Court restrained further proceedings under the subpoenas calling for those records until the Circuit Court should rule on plaintiffs' motion to quash the subpoenas and until the Supreme Court had passed upon the ruling of the Circuit Court. However, the Supreme Court refused to stay its mandate in the case involving the Bank and so left the Bank under a duty to comply upon demand with the subpoena directed to it.

The situation just outlined was that which existed when this suit was filed in this Court in early October 1967. The position in which the Party found itself was...

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