Special April 1977 Grand Jury, Matter of, 78-1459

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Citation: 581 F.2d 589
• Docket Number: No. 78-1459,78-1459
• Parties: In the Matter of the SPECIAL APRIL 1977 GRAND JURY. Appeal of William J. SCOTT, Witness.
• Decision Date: 11 August 1978

Page 589

581 F.2d 589 In the Matter of the SPECIAL APRIL 1977 GRAND JURY.
Appeal of William J. SCOTT, Witness. No. 78-1459. United States Court of Appeals,
Seventh Circuit. Argued June 14, 1978.
Decided July 11, 1978.
Rehearing and Rehearing En Banc Denied Aug. 11, 1978.

Page 591

Fred F. Herzog, Chicago, Ill., for appellant.

Jeremy D. Margolis, Asst. U. S. Atty., Chicago, Ill., for appellee.

Before CUMMINGS, SPRECHER and BAUER, Circuit Judges.

PER CURIAM.

Appellant Attorney General William J. Scott is the subject of a federal grand jury investigation. On March 17 and 20, 1978, grand jury subpoenas Duces tecum were served upon five members of his staff, calling for the production of his campaign records, employee rosters, his travel records, and long distance telephone bills. On March 22, appellant "in his Official Capacity of Attorney General of the State of Illinois" moved to quash or modify those subpoenas on seven different grounds. On March 24, Chief Judge Parsons of the Northern District of Illinois advised counsel of his tentative conclusion that these subpoenas were enforceable.

On March 28, an Assistant United States Attorney responded to the appellant's motion to quash or modify the subpoenas by filing an affidavit and certain exhibits In camera. Another affidavit of the same date described the conversations the prosecutor had with the five subpoenaed persons or their counsel and portrayed the ease of compliance.

On April 5, Judge Parsons modified the subpoenas to the extent that they may have covered the contents of telephone conversations and official meetings, but the motion to quash was denied, resulting in appellant's filing a notice of appeal. Stays were denied by the district court, this Court and the Supreme Court, and the subpoenas, including two additional ones served on April 6th, were complied with during the week of April 17.

I. Mootness

In the last portion of its brief on appeal, the Government claims that the issues raised by the appeal are moot because of the compliance with the subpoenas. Of course it is an empty gesture to "quash" a subpoena already honored (see United States v. Johnson, 215 F.Supp. 300, 318 (D.Md.1963), affirmed and remanded on other grounds, 337 F.2d 180 (4th Cir. 1969), affirmed on other grounds, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681) but the case still may be justiciable if the controversy is capable of repetition, yet evading review. See, E. g., Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1; United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303.

Both parts of this mootness standard as recently articulated by the Supreme Court appear to be met here. See First National Bank of Boston v. Bellotti, --- U.S. ---, ---, 98 S.Ct. 1407, 1414, 55 L.Ed.2d 707; Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350. First, as the dates outlined above indicate, the challenged action was too short to be litigated fully prior to appellant's compliance. While it could be argued that appellant could have obtained review before compliance by refusing to supply the documents and appealing a subsequent finding of contempt, the Supreme Court has not required litigants to subject themselves to contempt or criminal sanctions in order to meet this prong of the mootness test. See, E. g., Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683; First National Bank of Boston v. Bellotti, supra.

The second prong of the test is that there is a reasonable expectation that the same complaining party will be subjected to the same action again. That prong is satisfied here because as we were advised at oral argument this subpoena is part of a continuing investigation and future subpoenas of state officials, including the Attorney General's office, subject to the same objection are likely. Compare Securities and Exchange Commission v. Sloan, --- U.S. ---, 98 S.Ct. 1702, 56 L.Ed.2d 148.

Page 592

II. Immunity and Privilege

Appellant's first attack on the subpoenas is that they represent an unconstitutional federal "excursion" into the territory of exclusive state sovereignty, apparently on the grounds that certain state functions are immune from subpoena and certain state records are privileged from subpoena. We disagree. Branzburg v. Hayes, 408 U.S. 665, 668, 92 S.Ct. 2646, 33 L.Ed.2d 626, emphasized the public right to obtain every man's evidence through grand jury proceedings, and United States v. Nixon, 418 U.S. 683, 709-710, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039, noted that the process for the production of evidence has only limited exceptions which are "not lightly created nor expansively construed * * *."

Nothing in the United States Constitution immunizes any "exclusive domain of the state" (Br. 24) from the reach of a federal grand jury, and appellant has cited no case recognizing any such immunity. Compare Pitcher v. United States Attorney, 199 F.Supp. 862 (E.D.La.1961); Touhy v. Ragen,340 U.S. 462, 470, 71 S.Ct. 416, 95 L.Ed. 417 (Frankfurter, J., concurring). As then-Judge Webster's recent discussion of the grand jury's power with respect to the Sioux Indians indicates, the existence of some degree of sovereignty does not excuse a state from its responsibility to provide evidence to the grand jury. See In re Long Visitor, 523 F.2d 443, 446 (8th Cir. 1975); cf. Martin v. Hunter's Lessee, 1 Wheat. 305, 4 L.Ed. 97. Rather than carving out an unprecedented exemption from an arm of the federal government's enforcement powers, the requisite deference to a state's needs can be applied by considering with some care whether those needs are sufficient to create a privilege for certain state records. Compare United States v. Burr, 25 Fed.Cas. No. 14,692d, pp. 30, 35 (1807); United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039.

Certainly the Tenth Amendment and National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245, do not justify a contrary result. The federal interest in obtaining evidence in order to enforce its criminal laws against individuals is of an entirely different class from the interest asserted in Usery, where Congress sought "to regulate directly the activities of States as public employers * * * " (at 841, 96 S.Ct. at 2469). As discussed below, the impact of a subpoena on state functions is markedly different from the Usery direct system of regulation that requires a reallocation of state resources. Accord, In re Grand Jury Proceedings, 563 F.2d 577 (3d Cir. 1977); ¹ cf. National League of Cities v. Usery, 426 U.S. 833, 856, 96 S.Ct. 2465, 49 L.Ed.2d 245 (Blackmun, J., concurring). This distinction is particularly applicable here because this grand jury has not embarked on a "grandiose, brazen fishing expedition * * * into the affairs of the State of Illinois" (Br. 24) but rather is concerning itself with appellant's own affairs. To paraphrase from...