State v. Beno, 82-387

• Decision Date: 23 November 1982
• Docket Number: No. 82-387,82-387
• Citation: 327 N.W.2d 712,110 Wis.2d 40
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Sharon BENO, Defendant-Appellant, Speaker Of The Assembly Ed Jackamonis, and Richard White, Administrative Assistant, Intervening-Respondents. *
• Court: Wisconsin Court of Appeals

Page 712

327 N.W.2d 712

110 Wis.2d 40

STATE of Wisconsin, Plaintiff-Respondent, v. Sharon BENO, Defendant-Appellant,

Speaker Of The Assembly Ed Jackamonis, and Richard White,

Administrative Assistant, Intervening-Respondents.

^*

No. 82-387.

Court of Appeals of Wisconsin.

Argued Sept. 15, 1982.

Opinion Released Nov. 23, 1982.

Opinion Filed Nov. 23, 1982.

Charles W. Giesen (argued), Madison, for defendant-appellant; Eisenberg, Giesen, Ewers & Hayes, S.C., Madison, on brief.

Marguerite M. Moeller, Asst. Atty. Gen. (argued), for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.

Jon P. Axelrod, Madison (argued), for intervening-respondents; Eric A. Farnsworth, and Dougalas L. Flygt and DeWitt, Sundby, Huggett & Schumacher, S.C., Madison, on brief.

Before GARTZKE, P.J., and BABLITCH and DYKMAN, JJ.

GARTZKE, Presiding Judge.

Defendant Sharon Beno has appealed from a writ of attachment confining her in the Dane County jail until she has testified and produced documents in accordance with a subpoena issued by the Department of Revenue. ¹ That subpoena required defendant to testify before a special tax agent regarding the tax liability of Delbert L. Beno, her husband, and to produce her financial records. She refused to testify or produce the records. We vacate the writ and reverse related orders.

Defendant's first appeal from this same subpoena enforcement proceeding is reported in State v. Beno (Beno I), 99 Wis.2d 77, 298 N.W.2d 405 (Ct.App.1980). Defendant then appealed from an order denying her motion to quash the department's subpoena and granting a writ of attachment against her. One of her arguments was that the department cannot use its subpoena solely to collect evidence for a criminal prosecution. She sought discovery to determine whether that was the purpose of the department when issuing the subpoena. She contended that the writ of attachment should not issue against her until she had an opportunity to complete her discovery.

We concluded in Beno I that the legislature intended that a department investigation must be for the purpose of determining the civil liability of taxpayer, and that a subpoena issued by the department must be used for that purpose. 99 Wis.2d at 82, 298 N.W.2d at 409. We reversed the order denying defendant's motion to quash the subpoena and remanded for further discovery. We also reversed the order granting the state's motion for a writ of attachment.

The attachment before us on the second appeal was issued after the trial court quashed defendant's subpoena to compel the testimony of Richard White, an aide to Assembly Speaker Ed Jackamonis, and denied her motion to quash the subpoena issued to her by the department. We permitted White and Speaker Jackamonis to intervene as respondents.

The issues on appeal revolve around defendant's attempt to compel White to testify. The specific issues are as follows:

1. Did defendant's discovery exceed our mandate in Beno I?

2. Is the state entitled to the "informer" privilege in Rule 905.10(1), Stats., of the Code of Evidence?

3. Do legislators and their aides enjoy a common-law immunity from testifying regarding legislative acts?

4. Is a legislative aide exempt under art. IV, sec. 15 of the Wisconsin Constitution from service of a subpoena while the legislature is in session?

5. Is a legislative aide privileged under art. IV, sec. 16 of the Wisconsin Constitution from testifying regarding statements to the aide by a person who is not a legislator or an aide which have not been shown to affect the civil or criminal liability of a legislator or an aide?

6. If White was exempt from civil process or from testifying, was the privilege waived?

The facts are undisputed. After our remand in Beno I, defendant's lawyer received a letter from Attorney Crandall stating that White had said that Delbert Beno was about to be "indicted" or "criminally indicted" for "tax fraud." Crandall said White made those statements during conferences in a discrimination suit. Crandall's law firm represented Assemblyman Walter Ward's secretary in that suit against Ward and the State Assembly of Wisconsin.

White refused to allow defendant to depose him. She subpoenaed White, pursuant to sec. 805.07, Stats. White and Speaker Jackamonis moved to quash the subpoena on grounds of legislative privilege under the Wisconsin Constitution and the common law. They submitted affidavits stating that the information defendant sought had been revealed to White by a confidential informant during White's investigation into possible misconduct by a legislator and a legislative staff employee. Speaker Jackamonis stated that he had authorized the investigation as speaker of the assembly, as chairperson of the Assembly Organization Committee, and as co-chairperson of the Joint Committee on Legislative Organization. White and Jackamonis also contended that the identity of the informant was privileged under Rule 905.10, Stats., and that, in any event, our mandate in Beno I limited defendant's discovery to the department and its employees.

The trial court held that the discovery sought by defendant was proper but that White could not be subpoenaed because he possessed a legislative privilege under the Wisconsin Constitution which had not been waived. After quashing White's subpoena, the trial court heard testimony from Attorney Crandall and others regarding White's statements concerning Delbert Beno's tax problems. The court found that the testimony supported its earlier conclusion that White's testimony was privileged and that he had not waived the privilege. The court found that the testimony did not establish that White had said that the department had decided to proceed criminally against defendant's husband. The court concluded that defendant had had ample discovery and had failed to show institutional bad faith. Accordingly, the court denied defendant's motion to quash the department's subpoena and ordered her attachment.

1. Mandate in Beno I Not Exceeded

The department contends that United States v. Genser, 595 F.2d 146 (3d Cir.), cert. denied, 444 U.S. 928, 100 S.Ct. 269, 62 L.Ed.2d 185 (1979), and Beno I restrict defendant to discovery through witnesses who are Department of Revenue employees. We conclude that defendant's rights to discovery are not so limited. Beno I adopted the guidelines set forth in Genser, 595 F.2d at 152, for discovery by persons subpoenaed by the state Department of Revenue. Beno I, 99 Wis.2d at 93, 298 N.W.2d at 414. We said that defendant was entitled to interrogate department witnesses regarding the information covered by Genser and to an in camera inspection by the court of the department's files. 99 Wis.2d at 94, 298 N.W.2d at 415.

Beno I dealt with the right of a taxpayer to discovery within the department because that was the issue before us. We did not preclude discovery from sources outside the department which might shed light on the department's purpose in issuing a subpoena. The Genser guidelines themselves do not limit discovery to particular confines. The Genser guidelines were expressly denominated "minimum." 595 F.2d at 152.

2. "Informer" Privilege Unavailable

Rule 905.10(1), Stats., of the Code of Evidence provides in material part that the state "has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation."

The record does not show whether White possesses information pertinent to the department's purpose which he could reveal without disclosing the identity of an informer. We cannot rule on the applicability of Rule 905.10(1), Stats., to questions not yet put to White. The "informer" privilege cannot be interposed at this stage.

3. "Common-Law" Privilege

White and Speaker Jackamonis assert that White's testimony is protected by a common-law immunity which protects state legislators from liability for their legislative acts. They note that a common-law immunity was recognized in Supreme Court of Va. v. Consumers Union, 446 U.S. 719, 732, 100 S.Ct. 1967, 1974, 64 L.Ed.2d 641 (1980). United States v. Mandel, 415 F.Supp. 1025, 1027 (D.Md.1976), held that the common-law immunity of legislators has substantive and evidentiary aspects, and that the latter "affords legislators a privilege to refuse to answer any questions concerning their legislative acts in any proceeding outside of the legislature." (Footnote omitted.) The Supreme Court of the Territory of Wisconsin had occasion in Anderson v. Rountree, 1 Pin. 115 (Wis.1841), to discuss but found it unnecessary to decide whether the common law immunized a member of the territorial legislative council from service of a summons.

Assuming without deciding that a common-law legislative privilege or immunity once existed in Wisconsin, we conclude it has been abrogated.

Article XIV, sec. 13 of the Wisconsin Constitution provides: "Such parts of the common law as are now in force in the territory of Wisconsin, not inconsistent with this constitution, shall be and continue part of the law of this state until altered or suspended by the legislature." (Emphasis added.)

Rule 905.01, Stats., of the Code of Evidence provides in material part:

Except as provided by or inherent or implicit in statute or in rules adopted by the supreme court or required by the constitution of the United States or Wisconsin, no person has a privilege to:

(1) Refuse to be a witness; or

(2) Refuse to disclose any matter; or

(3) Refuse to produce any object or writing; or

(4) Prevent another from being a witness or disclosing any matter or producing any object or writing.

According to Davison v. St. Paul Fire & Marine Ins. Co., 75 Wis.2d 190, 202, 248 N.W.2d 433, 440 (1977), "[T]he enactment of sec. 905.01, Stats., Wisconsin Rules of Evidence, is an alteration or...