U.S. v. Gillock
| Citation | 587 F.2d 284 |
| Decision Date | 01 November 1978 |
| Docket Number | No. 77-5335,77-5335 |
| Parties | 3 Fed. R. Evid. Serv. 1571 UNITED STATES of America, Plaintiff-Appellant, v. Edgar H. GILLOCK, Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
W. J. Michael Cody, U. S. Atty., Glen Reid, Jr., Asst. U. S. Atty., Memphis, Tenn., for plaintiff-appellant.
James V. Doramus, James F. Neal, Neal & Harwell, Nashville, Tenn., Hal Gerber, Gerber, Bernstein, Gerber & Winestone, James D. Causey, Memphis, Tenn., for defendant-appellee.
Before WEICK, EDWARDS and ENGEL, Circuit Judges.
The question posed by this case is whether a federally indicted Tennessee State Senator is entitled to the protection of a common law speech or debate privilege as to his legislative acts. The issue requires an examination of a good deal of ancient history.
In 1689, after nearly two centuries of struggle between the English monarchy and the English Parliament, the English Bill of Rights was wrung by Parliament from newly crowned monarchs. It declared "that the Freedom of Speech and Debate or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament." 1 It was the Constitution of the United States by adoption of the Bill of Rights in 1789 which first provided an enforceable guarantee of freedom of speech for all persons. But previously in 1787 the original Constitution (and the Articles of Confederation before it 2) had enacted freedom of speech rights for members of Congress in the discharge of their official duties. Article I, § 6 of the United States Constitution provided (and provides) "any Speech or Debate in either House . . . shall not be questioned in any other Place."
Three states in 1787 had already adopted similar protections for their legislators. By now 43 states, including Tennessee, provide such constitutional protection for the legislative process. The working of the Tennessee Constitutional guarantee is:
Privilege of members. Senators and Representatives shall, in all cases, except treason, felony, or breach of the peace, be privileged from arrest during the session of the General Assembly, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.
All parties to this litigation concede, however, that neither provision quoted above from either the United States or the Tennessee Constitutions is directly applicable to the instant prosecution. This indictment is laid under a federal statute which prohibits "extortion . . . under color of official right." Hobbs Act, 18 U.S.C. § 1951 (1976). 3 The Tennessee Constitution cannot provide any specific protection to this state legislator in this case because of the supremacy clause in the federal constitution, art. VI, clause 2. Of course, the The question which remains is whether a federal common law privilege for state legislators essentially equivalent to the provisions contained in the English Bill of Rights and the United States and Tennessee Constitutions should be recognized by the federal courts in admitting evidence in a Hobbs Act case. If so, there is a second and less important question pertaining to the scope of the privilege to be applied in this case.
United States Constitution's provision does not apply directly, since appellee is not a member of either house of the United States Congress.
The seven-count indictment against Tennessee State Senator Edgar H. Gillock charged him with 1) procuring and agreeing to accept a bribe "under color of official right" for using his official office to prevent the extradition of one James Williams from Tennessee to Illinois; 2) attempting to obtain $5,000 apiece from four named individuals for using his office to attempt to procure for them master electrician's licenses; and 3) being engaged in the racketeering enterprises referred to, in violation of TCA § 39-802 which prohibits a member of the Tennessee legislature from agreeing to accept anything of value for exercising the discretion of the public office which he holds.
This case has been the subject of numerous motions and proceedings in the United States District Court for the Western District of Tennessee. In those proceedings defendant Gillock moved to dismiss the indictment and to suppress all the evidence concerning his legislative activities. The District Court denied motions to dismiss the indictment, but granted motions to exclude much of the evidence, holding that, as state senator, defendant Gillock had an evidentiary speech or debate privilege under Rule 501 of the Federal Rules of Evidence.
The government then appealed to this court under 18 U.S.C. § 3731 (1976), and this court remanded for the writing of a more particularized record of the evidence to be dealt with. In the District Court the government filed a detailed offer of proof which we have reproduced as an Appendix to this opinion. The District Judge then made detailed rulings thereon, and on the same grounds, suppressed many items in the offer of proof. The government then brought the instant appeal under 18 U.S.C. § 3731 (1976).
The basic question, as the District Judge recognized, is whether or not defendant Gillock is entitled to a common-law speech or debate privilege. Although the question has divided the Circuit Courts and has never been passed on by the Supreme Court, we hold that he is so entitled, albeit we would describe its limits somewhat more narrowly than did the District Judge.
The long history of the legislative speech or debate clauses which we have described at the beginning of this opinion forms the background of our decision. The government's brief seems to suggest that there is no need for such protection of legislative branches of government (whether national or state) when the powers of government are divided (as in the United States and Tennessee Constitutions) between three co-equal bodies the Executive, the Legislative and the Judiciary. This argument would have more appeal if American history demonstrated that no national or state executive had ever reached for power so as to infringe upon the rights of a legislative branch. From the beginning of the history of the United States to very recent years, however, there have been recurrent conflicts over power which have brought the President and Congress (to say nothing of Governors and Legislatures) into grave conflict. It is easy to conceive of the abuse of federal prosecutorial power against members of state legislatures of an opposite political persuasion.
The problem of this case is not constitutional immunity. No constitutional protection applies to defendant Gillock in this federal prosecution. What is at issue is his Chief Judge Bailey Brown who conducted the hearings and entered the suppression order from which this appeal is taken reasoned as follows:
claim, upheld by the District Judge, that evidence concerning his legislative acts should be suppressed because they are protected by a common-law privilege.
We conclude that, under Rule 501 of the Rules of Evidence, defendant has a speech or debate privilege with respect to, but only with respect to, his legislative acts and motivation therefor because we believe that such is required, as stated in the Rule, "by the principles of the common law" as they are interpreted "in the light of reason and experience." The reasons for the conclusion are these. The privilege is necessary, to paraphrase Chief Justice Burger in the Brewster case, to protect the integrity of the legislative process by insuring the independence of individual legislators, not simply for the personal or private benefit of legislators. To the extent that venal legislators might go unconvicted because of the government's being barred from proving legislative acts and motives, this is the price that the Founding Fathers believed we have to pay for legislative independence. Such freedom of our state legislators from federal criminal prosecutions, which call into question their legislative acts and motives, is necessary to preserve the constitutional relation between our federal and state governments in our federal system.
We believe that under the historical background we have recited above, Rule 501 of the Federal Rules of Evidence authorized Judge Brown (and authorizes and requires us) to find and protect a speech or debate privilege. Rule 501 provides:
Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.
We have indicated above that lessons "of reason and experience" have motivated recognition of legislative speech or debate immunity or privilege in 43 of the 50 states and in the English Bill of Rights, the Articles of Confederation of the United States, as well as the United States Constitution.
While the United States Supreme Court has never passed upon the precise problem which we face, it has recognized the immunity from civil suit of a state legislator on reasoning which we think applicable to this case:
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...
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CONSUMERS U. OF UNITED STATES v. American Bar Ass'n
...(4th Cir. 1973) also treats constitutional and common law legislative immunity identically. The Sixth Circuit in United States v. Gillock, 587 F.2d 284, 286 (6th Cir. 1978) takes a similar Only the Third Circuit, in the factual context of requiring Pennsylvania State legislators to obey a s......
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United States v. Nelson
...to state legislators who are being prosecuted in a federal court for a violation of a federal criminal statute. See, United States v. Gillock, 587 F.2d 284 (6th Cir. 1978), cert. granted, 441 U.S. 942, 99 S.Ct. 2159, 60 L.Ed.2d 1043 (1979).3 Nelson argues, however, that a state legislator w......
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