Tenney v. Brandhove, No. 338

CourtUnited States Supreme Court
Writing for the CourtFRANKFURTER
Citation341 U.S. 367,95 L.Ed. 1019,71 S.Ct. 783
PartiesTENNEY et al. v. BRANDHOVE
Docket NumberNo. 338
Decision Date21 May 1951

341 U.S. 367
71 S.Ct. 783
95 L.Ed. 1019
TENNEY et al.

v.

BRANDHOVE.

No. 338.
Argued March 1, 1951.
Decided May 21, 1951.

Mr.

Page 368

Harold C. Faulkner, San Francisco, Cal., for petitioners.

Messrs. Martin J. Jarvis, Richard O. Graw, San Francisco, Cal., for respondent.

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Mr. Justice FRANKFURTER delivered the opinion of the Court.

William Brandhove brought this action in the United States District Court for the Northern District of California, alleging that he had been deprived of rights guaranteed by the Federal Constitution. The defendants are Jack B. Tenney and other members of a committee of the California Legislature, the Senate Fact-Finding Committee on Un-American Activities, colloquially known as the Tenney Committee. Also named as defendants are the Committee and Elmer E. Robinson, Mayor of San Francisco.

The action is based on §§ 43 and 47(3) of Title 8 of the United States Code, 8 U.S.C.A. §§ 43, 47(3). These sections derive from one of the statutes, passed in 1871, aimed at enforcing the Fourteenth Amendment. Act of April 20, 1871, c. 22, §§ 1, 2, 17 Stat. 13. Section 43 provides:

'Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.' R.S. § 1979, 8 U.S.C. § 43, U.S.C.A. § 43.

Section 47(3) provides a civil remedy against 'two or more persons' who may conspire to deprive another of constitutional rights, as therein defined.1

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Reduced to its legal essentials, the complaint shows these facts. The Tenney Committee was constituted by a resolution of the California Senate on June 20, 1947. On January 28, 1949, Brandhove circulated a petition among members of the State Legislature. He alleges that it was circulated in order to persuade the Legislature not to appropriate further funds for the Committee. The petition charged that the Committee had used Brandhove as a tool in order 'to smear Congressman Franck R. Havenner as a 'Red' when he was a candidate for Mayor of San Francisco in 1947; and that the Republican machine in San Francisco and the campaign management of Elmer E. Robinson, Franck Havenner's opponent, conspired with the Tenney Committee to this end.' In view of the conflict between this petition and evidence previously given by Brandhove, the Committee asked local prosecuting officials to institute criminal proceedings against him. The Committee also summoned Brandhove to appear before them at a hearing held on January 29. Testimony was there taken from the Mayor of San Francisco, allegedly a member of the conspiracy. The plaintiff appeared with counsel, but refused to give testimony.

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For this, he was prosecuted for contempt in the State courts. Upon the jury's failure to return a verdict this prosecution was dropped. After Brandhove refused to testify, the Chairman quoted testimony given by Brandhove at prior hearings. The Chairman also read into the record a statement concerning an alleged criminal record of Brandhove, a newspaper article denying the truth of his charges, and a denial by the Committee's counsel—who was absent that Brandhove's charges were true.

Brandhove alleges that the January 29 hearing 'was not held for a legislative purpose,' but was designed 'to intimidate and silence plaintiff and deter and prevent him from effectively exercising his constitutional rights of free speech and to petition the Legislature for redress of grievances, and also to deprive him of the equal protection of the laws, due process of law, and of the enjoyment of equal privileges and immunities as a citizen of the United States under the law, and so did intimidate, silence, deter, and prevent and deprive plaintiff.' Damages of $10,000 were asked 'for legal counsel, traveling, hotel accommodations, and other matters pertaining and necessary to his defense' in the contempt proceeding arising out of the Committee hearings. The plaintiff also asked for punitive damages.

The action was dismissed without opinion by the District Judge. The Court of Appeals for the Ninth Circuit held, however, that the complaint stated a cause of action against the Committee and its members. 183 F.2d 121.2 We brought the case here because important issues are raised concerning the rights of individuals and the power of State legislatures. 340 U.S. 903, 71 S.Ct. 279.

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We are again faced with the Reconstruction legislation which caused the Court such concern in Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495, and in the Williams cases decided this term. Williams v. U.S., 341 U.S. 97, 71 S.Ct. 576; Id., 341 U.S. 70, 71 S.Ct. 581; Id., 341 U.S. 58, 71 S.Ct. 595. But this time we do not have to wrestle with far-reaching questions of constitutionality or even of construction. We think it is clear that the legislation on which this action is founded does not impose liability on the facts before us, once they are related to the presuppositions of our political history.

The privilege of legislators to be free from arrest or civil process for what they do or say in legislative proceedings has taproots in the Parliamentary struggles of the Sixteenth and Seventeenth Centuries. As Parliament achieved increasing independence from the Crown, its statement of the privilege grew stronger. In 1523, Sir Thomas More could make only a tentative claim. Roper, Life of Sir Thomas More, in More's Utopia (Adams ed.) 10. In 1668, after a long and bitter struggle, Parliament finally laid the ghost of Charles I, who had prosecuted Sir John Elliot and others for 'seditious' speeches in Parliament. Proceedings against Sir John Elliot, 3 How. St.Tr., 294, 332. In 1689, the Bill of Rights declared in unequivocal language: 'That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament.' 1 Wm. & Mary, Sess. 2, c. II. See Stockdale v. Hansard, 9 Ad. & El. 1, 113—114 (1839).

Freedom of speech and action in the legislature was taken as a matter of course by those who severed the Colonies from the Crown and founded our Nation. It was deemed so essential for representatives of the people that it was written into the Articles of Confederation and later into the Constitution. Article V of the Articles of Confederation is quite close to the English Bill of Rights: 'Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress * * *.' Article I, § 6, of the Constitution pro-

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vides: '* * * for any Speech or Debate in either House, (the Senators and Representatives) shall not be questioned in any other Place.'

The reason for the privilege is clear. It was well summarized by James Wilson, an influential member of the Committee of Detail which was responsible for the provision in the Federal Constitution. 'In order to enable and encourage a representative of the public to discharge his public trust with firmness and success, it is indispensably necessary, that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offense.' II Works of James Wilson (Andrews ed. 1896) 38. See the statement of the reason for the privilege in the Report from the Select Committee on the Official Secrets Acts (House of Commons, 1939) xiv.

The provision in the United States Constitution was a reflection of political principles already firmly established in the States. Three State Constitutions adopted before the Federal Constitution specifically protected the privilege. The Maryland Declaration of Rights, Nov. 3, 1776, provided: 'That freedom of speech, and debates or proceedings in the Legislature, ought not to be impeached in any other court or judicature.' Art. VIII. The Massachusetts Constitution of 1780 provided 'The freedom of deliberation, speech and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action, or complaint, in any other court or place whatsoever.' Part I, Art. XXI. Chief Justice Parsons gave the following gloss to this provision in Coffin v. Coffin, 1808, 4 Mass. 1, 27:

'These privileges are thus secured, not with the intention of protecting the members against prosecutions for their own benefit, but to support the

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rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecutions, civil or criminal. I therefore think that the article ought not to be construed strictly, but liberally, that the full design of it may be answered. I will not confine it to delivering an opinion, uttering a speech, or haranguing in debate; but will extend it to the giving of a vote, to the making of a written report, and to every other act resulting from the nature, and in the execution, of the office; and I would define the article as securing to every member exemption from prosecution, for every thing said or done by him, as a representative, in the exercise of the functions of that office, without inquiring whether the exercise was regular according to the rules of the house, or irregular and against their rules.'

The New Hampshire Constitution of 1784 provided: 'The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any action, complaint, or prosecution, in any other court or place whatsoever.' Part I, Art. XXX.3

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1182 practice notes
  • United States v. Nelson, No. G78-115 CR5.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • February 15, 1980
    ...duties. Recognition of this fact led the Supreme Court to grant official immunity for federal civil suits, Tenney v. Brandhove, supra 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019. That same concern in common law history supports the existence of a privilege for state legislators in federal cri......
  • Empress Casino Joliet Corp.. v. Blagojevich, Nos. 09–3975
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 2, 2011
    ...Country Estates, Inc. v. Tahoe Reg'l Planning Agency, 440 U.S. 391, 403–04, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979); Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 95 L.Ed. 1019 (1951); [638 F.3d 528] Biblia Abierta v. Banks, 129 F.3d 899, 906 (7th Cir.1997); Thillens, Inc. v. Cmty. Cur......
  • Salvati v. Dale, Civ. A. No. 73-461
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • October 5, 1973
    ...clear indication that Congress meant to abolish wholesale all common-law immunities. Accordingly, this Court held in Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), that the immunity of legislators for acts within the legislative role was not abolished. The immunity o......
  • Christian v. Town of Riga, No. 08-CV-6557.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • August 17, 2009
    ...was undertaken "in the sphere of legitimate legislative activity." See Bogan, 523 U.S. at 54, 118 S.Ct. 966 (quoting Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 95 L.Ed. 1019 (1951)).14 Page 104 immunity bars suits for damages, injunctions and declaratory relief against legislator......
  • Request a trial to view additional results
1169 cases
  • United States v. Nelson, No. G78-115 CR5.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • February 15, 1980
    ...duties. Recognition of this fact led the Supreme Court to grant official immunity for federal civil suits, Tenney v. Brandhove, supra 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019. That same concern in common law history supports the existence of a privilege for state legislators in federal cri......
  • Will v. Michigan Department of State Police, No. 87-1207
    • United States
    • United States Supreme Court
    • June 15, 1989
    ...1683, 1692, 40 L.Ed.2d 90 (1974); Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1217, 18 L.Ed.2d 288 (1967); and Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 788, 95 L.Ed. 1019 (1951), are also to this effect. The doctrine of sovereign immunity was a familiar doctrine at common......
  • Empress Casino Joliet Corp.. v. Blagojevich, Nos. 09–3975
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 2, 2011
    ...Country Estates, Inc. v. Tahoe Reg'l Planning Agency, 440 U.S. 391, 403–04, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979); Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 95 L.Ed. 1019 (1951); [638 F.3d 528] Biblia Abierta v. Banks, 129 F.3d 899, 906 (7th Cir.1997); Thillens, Inc. v. Cmty. Cur......
  • Salvati v. Dale, Civ. A. No. 73-461
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • October 5, 1973
    ...clear indication that Congress meant to abolish wholesale all common-law immunities. Accordingly, this Court held in Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), that the immunity of legislators for acts within the legislative role was not abolished. The immunity o......
  • Request a trial to view additional results
2 books & journal articles
  • PLAINLY INCOMPETENT: HOW QUALIFIED IMMUNITY BECAME AN EXCULPATORY DOCTRINE OF POLICE EXCESSIVE FORCE.
    • United States
    • University of Pennsylvania Law Review Vol. 170 Nbr. 2, January 2022
    • January 1, 2022
    ...the legislators 'were acting in a field where legislators traditionally have power to act.'" Id. at 559 (quoting Tenney v. Brandhove, 341 U.S. 367, 379 (66) Pierson, 386 U.S. at 549. (67) Id. (68) Id. at 550. (69) Id. at 555. (70) Brief for Respondents, Pierson v. Ray, 386 U.S. 547 (1967) (......
  • The Liability of Public Executives: Implications for Practice in Personnel Administration
    • United States
    • Review of Public Personnel Administration Nbr. 1-1, September 1980
    • September 1, 1980
    ..."Professional Managers and Personal Liability." Public Personnel Management 7 (January-February): 43-48. Tenney v. Brandhove (1951). 341 U. S. 367. Vorbeck v. McNeal, (1976). 407 F. Supp. Washington v. Davis (1976). 426 U. S. 229. Williams v. Anderson (1977). 562 F. 2d 1081. Wood v. Strickl......

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