State ex rel. Groppi v. Leslie

• Decision Date: 17 October 1969
• Docket Number: No. S,S
• Citation: 44 Wis.2d 282,171 N.W.2d 192
• Parties: STATE of Wisconsin ex rel. James E. GROPPI, Petitioner, v. Jack LESLIE, Sheriff of Dane County, Respondent. tate 122.
• Court: Wisconsin Supreme Court

Page 192

171 N.W.2d 192

44 Wis.2d 282

STATE of Wisconsin ex rel. James E. GROPPI, Petitioner, v. Jack LESLIE, Sheriff of Dane County, Respondent.

No. State 122.

Supreme Court of Wisconsin.

Oct. 17, 1969.

Rehearing Denied Dec. 19, 1969.

The petitioner James E. Groppi was found in contempt by the Assembly of the Wisconsin Legislature on October 1st, 1969. and pursuant to the direction of the resolution of the Assembly was arrested by the respondent and held in the Dane county jail. His application for a writ of habeas corpus was denied by the circuit court for Dane county and on October 7th, 1969, he applied to this court to take original jurisdiction to consider his petition for a writ of habeas corpus. While this application was pending, this court on October 8th and again on October 10th, 1969, denied the request of the petitioner to be temporarily released from custody on what he called bail. He was, however, released by the judge of the United States District Court for the Western District of Wisconsin on October 11th and enjoined from coming closer than a prescribed distance from the state capitol building in Madison, Wisconsin. His release does not render the question before us moot or affect our jurisdiction. This court waived oral arguments on the question of leave to take jurisdiction and accepted original jurisdiction on October 9th and heard oral arguments on the merits on October 10th, 1969.

James M. Shellow, William M. Coffey, Robert H. Friebert, Milwaukee, Percy L. Julian, Jr., Madison, for petitioner.

Robert W. Warren, Atty. Gen., Madison, for respondent.

PER CURIAM.

On September 29, 1969, during a regular meeting of the Assembly just prior to the commencement of a special session called by the governor, James E. Groppi led a crowd of noisy protesters into the state capitol building and proceeded to 'take over' the Assembly chamber to protest his disagreement with cuts in the state budget for certain welfare programs. The Assembly was unable to proceed with its legislative duties. We take judicial notice that Groppi publicly stated in the Assembly to his cheering supporters, in effect, that they had captured the capitol and intended to stay until they got what they wanted, and that Groppi vowed from the speaker's stand in the Assembly to remain there until the legislature restored funds for welfare recipients. The occupation of the Assembly by Groppi and the protesters lasted from approximately midday to well toward midnight. Thereafter the protesters were kept out of the state capitol building by police, sheriffs, and the national guard. The Assembly convened on October 1, 1969, and passed a resolution ¹ finding the petitioner in contempt for 'disorderly conduct in the immediate view of the house and directly tending to interrupt its proceedings.' The Assembly ordered his imprisonment for the duration of the 1969 regular session of the Wisconsin legislature, or for six months, whichever occurred earlier.

Counsel for the petitioner has made it clear he is not contending the Assembly is without authority to deal directly by way of summary contempt proceedings with acts committed in its immediate view and tending to disrupt its proceedings. What is argued is that the contempt proceedings no longer can be summary and the safeguards afforded defendants in criminal prosecutions by the United States Constitution must now be afforded in contempt proceedings involving contempts committed in the presence of the legislature. In such proceedings the petitioner claims he has a right to a hearing of some kind, to be represented by counsel, to compulsory process for the attendance of witnesses, to be informed of the nature and cause of the accusations, to confront his accusers, and to proceed with a defense denying the accusation or giving an explanation for his conduct. This argument equates a finding of contempt and imprisonment by the legislature with a finding of built in a criminal trial and criminal punishment. Basically, the argument ignores the purpose and nature of the legislative proceeding and considers imprisonment by the legislative summary contempt process is for a crime and therefore the process must include the constitutional safeguards of criminal procedure in a court of law. A brief review of the origin, the basis, and the scope of the legislative power of summary procedure for contempt committed in its presence is necessary.

From the time of the adoption of our state constitution in 1848, it has been provided in sec. 8, Art. IV, that 'each house may * * * punish for contempt and disorderly conduct * * *.' In keeping with the recognized rules of construction of state constitutions, we consider this article not to be a grant of contempt power but a recognition and affirmation of the historic and inherent contempt power possessed by the legislative branch of our tripartite government and of the British Parliament. Historically, this contempt power has been considered one of self-defense and of self-preservation. Likewise, we do not consider secs. 13.26 ² and 13.27, ³ Stats., as granting any contempt power to the legislature but as regulation of that power. The forerunners of these sections were adopted in 1849 shortly after the adoption of the constitution. In the light of the law on contempts as it then existed and by their terms, these sections granted no power but limit and proscribe the exercise of the legislative contempt power. It was an expression of the legislative intent to limit its own power to less than that declared by the constitution and less than that exercised by the Parliament. The contempt power in sec. 13.26 was restricted to enumerated offenses and the imprisonment was limited to prevent the occurrence of such offenses during the session of the legislature. Punishment for the sake of punishment or 'to teach a lesson' was not provided and was not the object of this confinement. Incarceration by the legislature was not an end in itself but a means to an end, i.e., the freedom to perform its public duties which could only be obtained by imprisonment of the intruders. Assembly Rule 10, which Groppi and his followers were found to violate, provides who has floor privileges when the Assembly is in session. Needless to say, neither Groppi nor his followers qualified or had permission when they forcefully took over the Assembly. However, in sec. 13.27 it was provided as was customary at the time the constitution was adopted that the acts constituting a contempt were also to be a misdemeanor which after the adjournment of the legislature but not during the session could be prosecuted. A penalty of $200 or imprisonment of not more than one year in a county jail was provided.

We point out the resolution of the Assembly did not give James E. Groppi the maximum confinement since it confined him until the end of the session of the legislature but not exceeding a period of six months, whichever event occurred first. Thus if the session of the legislature lasted longer than six months James E. Groppi would still be released from confinement.

The history of the direct contempt power by parliament and the courts of England prior to the adoption of our federal constitution has been a subject of confusing scholarship and acceptance. ⁴ It is certain the House of Commons possessed authority to deal directly with contempts without the intervention of courts, including the power to impose prolonged terms of imprisonment. It has been suggested this power rested upon an assumed blending of the legislature and judicial authority possessed by Parliament when the House of Lords and the Commons were one and continued to operate after the division of the parliament into the two houses.

Nevertheless, prior to the adoption of our federal constitution some states recognized the necessity of the legislature to have the power of contempt even though one might consider it a judicial power and granted or recognized the power in the legislature. This was done notably in Maryland and Massachusetts, whose state constitutions prior to 1787 recognized in the houses of the legislature the power to find persons guilty of contempt committed in their presence. Maryland Constitution of 1776, Article XII; Massachusetts Constitution of 1780, Article Second, chapter 1, section 3, Articles X and XI. In considering these state constitutions, the United States Supreme Court in Marshall v. Gordon (1917), 243 U.S. 521, 535, 37 S.Ct. 448, 451, 61 L.Ed. 881, stated the object 'could only have been to recognize the right of the legislative power to deal with the particular acts without reference to their violation of the criminal law and their susceptibility of being punished under that law because of the necessity of such a legislative authority to prevent or punish the acts independently, because of the destruction of legislative power which would arise from such acts if such authority was not possessed.' Almost contemporaneously with the adoption of the federal constitution similar provisions were written into other state constitutions. See Footnote 1, page 536, 37 S.Ct. 448, Marshall v. Gordon, supra.

In several United States Supreme Court cases, it has been held that while the inherent contempt power of the House of Commons could not exist in the Congress of the United States because of its delegated powers, nevertheless Congress did have limited implied powers of contempt ancillary and incidental to the legislative powers granted Congress. The first such case so holding was Anderson v. Dunn (1821), 6 Wheaton, 19 U.S. 204. This case squarely held that from the power to legislate there was to be implied the right of Congress to preserve itself, i.e., to deal by way of contempt with direct obstructions to its legislative duties.

While in Kilbourn v. Thompson (1881), 103 U.S. 168, 26 L.Ed. 377, the court denied to Congress the judicial-legislative power of contempt possessed by the House of Commons,...