Amicus Curiae Brief — Colafella v. United States

pee

he Suproing Court, U.S,

NO¥ 2

No. 87-570 987

BRANIOL, JR,

CLERK

IN THE

Suprenv Court of the Wuited States

OCTOBER TERM, 1987

NICHOLAS COLAFELLA, K. LEROY IRVIS,

JAMES J. MANDERINO, MATTHEW J. RYAN,

and the BIPARTISAN COMMITTEE FOR THE

ADMINISTRATION OF THE HOUSE OF REPRESENTATIVES,

Petitioners,

ve

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

BRIEF AMICUS CURIAE OF THE

NATIONAL CONFERENCE OF STATE LEGISLATURES

AND THE COUNCIL OF STATE GOVERNMENTS

IN SUPPORT OF THE

PETITION FOR A WRIT OF CERTIORARI

JON R. FELDE

NATIONAL CONFERENCE

OF STATE LEGISLATURES

Suite 500

444 N. Capitol St., N.W.

Washington, D.C. 20001

(202) 624-5400

Counsel for NCSL

STANLEY BRAND *

BRAND & LOWELL

923 Fifteenth Street, N.W.

Washington, D.C. 20005

(202) 662-9700

* Counsel of Record

for Amici Curiae

WILSON - EPES PRINTING Co., INc.

- 789-0096 - WASHINGTON, D.C. 20001

SE neta i en a a i mee A 1

QUESTION PRESENTED

Whether members of an investigative committee of a

state legislature, who are not themselves targets of a

federal criminal investigation, may resist a federal grand

jury subpoena for their investigative documents and re-

ports served during an ongoing legislative investigation.

(i)

TABLE OF CONTENTS

Page

Sere PReenreD ...W.................- i

Tae ee Aenea 4o.oo................- iv

INTEREST OF THE AMICI CURIAE ------------ 1

Dae Gee seem, CASE ................... 3

REASONS FOR GRANTING THE WRIT PT 4

I. The Third Circuit’s Denial Of Protection To On-

going Legislative Activity Is Inconsistent With

The Precedents Of This Court And Other

8 SA Gane ae a 4

II. This Court Should Invoke Its Supervisory Power

Over Lower Federal Courts To Resolve The

Issue In This Case Because It Presents The

Potential For Recurring Confrontation Between

Grand Juries And State Legislatures _____-___- 9

EA a 12

(iil)

iv

TABLE OF AUTHORITIES

CASES: Page

Alpers v. San Francisco, 32 F. 503 (C.C. 1887) .--- 8

Coffin v. Coffin, 4 Mass. 1 (1808) ~------------- 7

Cohen v. Beneficial Industrial Loan Corp., 337 U.S.

ie - Se i acc ede cca ake dcnisalsiainai: 11

Coyle v. Oklahoma, 221 U.S. 559 (1911) --------- 8,9

Eastland v. United States Servicemen’s Fund, 421

ok We, | Ree AE, eee ere 7

Garcia v. San Antonio Metropolitan Transit Au-

thority, 469 US. S36 (1965) ...........-....- 2,9

Green v. DeCamp, 612 F.2d 368 (8th Cir. 1980) _- 6

Hannah v. Larche, 363 U.S. 420 (1960) .--------- 6

Hearst v. Black, 87 F.2d 68 (D.C. Cir. 1936)--_--- 8

Hickman v. Taylor, 329 U.S. 495 (1947) ~------- 9

In Re Guthrie, 733 F.2d 634 (4th Cir. 1984) ----- 8

In Re Hampers, 651 F.2d 19 (1st Cir. 1981) .----~- 5, 6

McGrain v. Daugherty, 273 U.S. 1385 (1927) ----- 2,7

McNabb v. United States, 318 U.S. 332 (19438) __- 10

MeSurely v. McClellan, 553 F.2d 1277 (D.C. Cir.

1976), cert. dismissed sub nom. McAdams v.

McSurely, 438 U.S. 189 (1978) ..............- 5

Powell v. McCormack, 395 U.S. 486 (1969) ------- 7

Rizzo v. Goode, 423 U.S. 362 (1976)___--__------ 10

Sacher v. United States, 343 U.S. 1 (1952) -----_- 10

Schlagenhauf v. Holder, 379 U.S. 104 (1964) ____- 9

Tenney v. Brandhove, 341 U.S. 367 (1951) -_--_- 6, 7,11

Thermatron Products, Inc. v. Hermansdorfer, 423

te SE I soa a seh cis cird aca soma mee 9

United States v. Ehrlichman, 389 F. Supp. 95

(D.D.C. 1974), aff'd on other grounds sub nom.

United States v. Liddy, 542 F.2d 76 (D.C. Cir.

RE eae NAAN Hes Cg ty <M! oR gs oe i ey 8

United States v. Gillock, 445 U.S. 360 (1980)___- 4,5,8

United States v. Helstoski, 442 U.S. 477 (1979) __- 7

United States v. LaSalle National Bank, 437 U.S.

BI i a a 10

United States v. Nixon, 418 U.S. 683 (1974) ____- 11

Vv

TABLE OF AUTHORITIES—Continued

CONSTITUTIONAL PROVISIONS: Page

ik Be A SS en eee 6-7, 7,8

ee as ME as ME tots occas Kohl eacaeon 2

TREATISES AND PERIODICALS:

Landis, Constitutional Limits on the Congressional

Power of Investigation, 40 Harv. L. Rev. 153

PEE eb nies Chau okadeaue eu aaa keekdemen ace 2

Potts, Power of Legislative Bodies to Punish for

Contempt, 74 U.Pa.L.Rev. 691 (1926) ________ 2

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

No. 87-570

NICHOLAS COLAFELLA, K. LEROY IRVIS,

JAMES J. MANDERINO, MATTHEW J. RYAN,

and the BIPARTISAN COMMITTEE FOR THE

ADMINISTRATION OF THE HOUSE OF REPRESENTATIVES,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

BRIEF AMICUS CURIAE OF THE

NATIONAL CONFERENCE OF STATE LEGISLATURES

AND THE COUNCIL OF STATE GOVERNMENTS

IN SUPPORT OF THE

PETITION FOR A WRIT OF CERTIORARI

INTEREST OF THE AMICI CURIAE

Amici curiae, the National Conference of State Legis-

latures, an organization representing the legislatures of

the 50 States and American territories and common-

wealths, and the Council of State Governments, a na-

2

tional organization representing all branches of state

government including state legislatures, seek to further

the vitality and autonomy of state legislatures within the

system of federalism created under our Constitution.

This case is of critical importance to States and their

legislatures because the Third Circuit’s decision threat-

ens the integrity of the legislative process that is at the

core of the Article IV, section 4, guarantee of a repub-

lican form of government in the States.

In this case, a United States Attorney caused a federal

grand jury subpoena to be issued and served upon an

investigative committee of the Pennsylvania legislature

while it was engaged in an official legislative inquiry.

Allowing a federal executive official to intrude into a

State’s legislative process in a case such as this, where

no state legislator is alleged to be the subject of the

federal inquest, and without establishing a compelling

need or exploring less intrusive alternative means of ob-

taining evidence, endangers state sovereignty in a man-

ner never sanctioned by this Court. Such intrusion upsets

the delicate balance between state and federal powers,

“a balance designed to protect our fundamental liberties.”

Garcia v. San Antonio Metropolitan Transit Authority,

469 U.S. 528, 572 (1985) (Powell, J., dissenting).

The gathering of information by a state legislature is a

core legislative function that goes to the heart of state

sovereignty; it has been exercised from time immemorial

by English and colonial legislatures and it is recognized

by this Court as an incident of fundamental legislative

power. Potts, Power of Legislative Bodies To Punish

For Contempt, 74 U.Pa.L.Rev. 691, 708-725 (1926) (col-

lecting colonial and state precedents for contempt in the

course of legislative inquiries); Landis, Constitutional

Limits on the Congressional Power of Investigation, 40

Harv.L.Rev. 153, 156 (1927); McGrain v. Daugherty,

273 U.S. 135, 166 (1927) (citing state court cases sus-

taining power of legislature to compel testimony).

3

The state legislatures, represented by the National Con-

ference of State Legislatures and the Council of State

Governments, will be adversely affected by any rule that

permits federal prosecutors, through the grand jury, to

forage among institutional records generated by state

legislative inquiries.

Because of their vital interest in preventing the erosion

of the federal and republican structure of our govern-

ment, amici respectfully urge the Court to grant the

petition for certiorari.’

STATEMENT OF THE CASE

Amici essentially adopt the petitioners’ statement of

the case. From the perspective of amici as organizations

representing state legislatures, several facts merit special

emphasis in the Court’s consideration of the petition.

The subpoena at issue in this case was served upon a

pre-existing and ongoing state legislative committee en-

gaged in a duly authorized and bona fide investigation

into subject matter within its jurisdiction: compliance

with the state Steel Products Procurement Act (requiring

purchase of domestic steel for construction projects) in

connection with the expansion of the State Capitol build-

ing in Harrisburg, Pennsylvania, the very edifice housing

the state legislative chambers and offices; and review

of the administration of that Act by the state Department

of General Services.

The legislative investigation was authorized by resolu-

tion of the Pennsylvania legislature. As part of the inves-

tigation, the Committee received testimony from Walter

Baran, the Secretary of the Department of General Serv-

ices, over which the Committee had oversight responsi-

bility. It was this witness, himself a subject of the Com-

1Under Rule 36 of the Rules of this Court, the parties have

consented to the filing of this brief. Their letters of consent have

been filed with the Clerk of the Court.

4

mittee’s inquiry, at whose request the United States At-

torney for the Middle District of Pennsylvania began his

investigation and convened the grand jury that issued

the contested subpoena. Nothing in the record suggests

that the United States Attorney had any independent in-

terest in the subject matter being investigated by the

Committee, or in its sources or work product, until the

request was lodged. But for Baran’s own initiative in

seeking his assistance, the United States Attorney might

never have become involved.

The materials sought are documents integral to the

conduct of the legislative committee investigation, not

merely incidental byproducts of the Committee’s inquiry.

They include investigative reports, memoranda and sum-

maries from interviews of witnesses by committee em-

ployees, handwritten and typewritten notes of such mem-

oranda and interviews, including purely internal com-

mittee communications not directly characterizing the

statements of persons interviewed. Amici believe that

the peculiarly sensitive and deliberative nature of the

materials sought is highly significant to the legal issues

presented for review.

REASONS FOR GRANTING THE WRIT

I. The Third Circuit’s Denial Of Protection To Ongoing

Legislative Activity Is Inconsistent With The Prece-

dents Of This Court And Other Courts.

The Third Cireuit’s ruling that, under the Supremacy

Clause, a subpoena issued upon the initiative of the fed-

eral executive branch takes precedence over a state legis-

lature’s interest in protecting its legislative processes

from intrusion, 821 F.2d 946, 954, is inconsistent with

prior decisions of this Court and other courts. In deny-

ing protection to the state legislative committee, the court

of appeals relied primarily on United States v. Gillock,

445 U.S. 360 (1980), which does not, however, support

the court’s decision. Gillock held only that an individual

5

state legislator’s legislative acts could be used in evidence

at his trial on federal criminal charges because the

separation-of-powers concerns among co-equal federal

branches undergirding the federal speech or debate priv-

ilege were not present in a federal prosecution of a state

official. In Gillock, upholding a speech or debate privilege

for-a state legislator by barring use of specific evidence

at trial would have served to immunize conduct proscribed

by law by Congress. Here, of course, upholding the legis-

lature’s institutional claim would have no such effect;

state legislators are not targets of the grand jury

investigation.

In Gillock, the interference in the state legislative

process was incidental because only an individual legis-

lator unlawfully exploiting his position was targeted for

prosecution; here, the interference is directiy with the

processes of the legislature as an institution. Another

court of appeals has recognized that:

... even though material comes to a legislative com-

mittee by means that are unlawful or otherwise

subject to judicial inquiry the subsequent use of the

documents by the committee staff in the course of

official business is privileged legislative activity.

McSurely v. McClellan, 553 F.2d 1277, 1296 (D.C. Cir.

1976) (en bane), cert. dismissed sub nom. McAdams v.

McSurely, 438 U.S. 189 (1978). In sum, it is the infor-

mation-gathering process of the legislature itself that is

jeopardized—totally unlike Gillock, which involved the

public legislative acts of an individual legislator, not the

documentary and testimonial products of an investigation

by the legislative body.

In denying the legislature’s claim, the Third Circuit has

set itself in clear and irreconcilable conflict with at least

one other court of appeals. In Jn Re Hampers, 651 F.2d

19 (1st Cir. 1981), the court quashed a federal grand

jury subpoena to the Massachusetts Commissioner of Rev-

enue in a federal investigation, holding that the federal

interest in seeking information did not outweigh the

6

state interest under principles of comity and federalism.

Id., at 23. A federal grand jury was investigating an

arson-insurance fraud scheme and sought evidence from

the state Commissioner of Revenue concerning the non-

payment of sales tax on meals and beverages of a res-

taurant that suspiciously burned down. The information

sought—collected by the Commission in furtherance of

its authority under state law—was deemed protected.

The court held that the federal grand jury must proffer

reasonable cause to believe that a federal crime has been

committed, that the information sought is probative of a

matter at issue, and that the information cannot be

obtained elsewhere through reasonable efforts. Id. A

state legislature, no less than a state administrative

agency, is due the deference and comity accorded the

State by the First Circuit in Hampers.

The Third Circuit’s opinion also ignores the substantial

jurisprudence developed by this Court and other courts

protecting the processes of legislative investigative com-

mittees. These precedents emphasize the fundamental

premise that the exercise of legislative factfinding is a

core function of both state and federal sovereignty. Han-

nah v. Larche, 363 U.S. 420, 440-44 (1960) (Civil Rights

Commission’s purely legislative investigative function did

not vest certain due process rights in persons under

investigation); Tenney v. Brandhove, 341 U.S. 367, 379

(1951) (state legislative committee’s actions in reading

into record statements of alleged criminal record of

plaintiff constituted acts “in a field where legislators

traditionally have power to act’) ; Green v. DeCamp, 612

F.2d 368, 371 (8th Cir. 1980) (state legislative com-

mittee’s report criticizing homicide investigation under-

taken by city police chief is part of legitimate legislative

investigation).

The jurisprudence developed by this Court respecting

the sanctity of the federal legislative process from ex-

ecutive branch interference under the federal Speech or

7

Debate Clause, U.S. Const., art. I, § 6, cl. 1, is itself

based largely on colonial and state precedents. The Court

has drawn frequently from cases involving colonial and

state legislative experience to buttress its interpretation

of the federal Speech or Debate Clause as a bulwark

against executive branch interference. E'.g., United States

v. Helstoski, 442 U.S. 477, 493 (1979) (citing with ap-

proval and relying upon Coffin v. Coffin, 4 Mass. 1 (1808)

in interpreting federal speech or debate privilege) ; Powell

v. McCormack, 395 U.S. 486, 501 (1969) (citing Tenney

v. Brandhove, in construing scope of Speech or De-

bate Clause in suit by federal legislator charging un-

constitutional exclusion from House of Representatives).

See also McGrain v. Daugherty, 273 U.S. at 174

(“We are of opinion that the power of inquiry—with

process to enforce it—is an essential and appropriate

auxiliary to the legislative function. It was so regarded

and employed in American legislatures before the Con-

stitution was framed and ratified.”). The court of ap-

peals’ treatment in this case of the State’s sovereign

interest in free and unfettered legislative inquiry is in-

consistent with and contrary to these precedents.

As the Court recognized in Tenney, there is no reason

to believe that Congress, in enacting the civil rights stat-

ute, 42 U.S.C. § 1983, intended to divest state legislatures

of protection for their processes; nor is there any reason

to believe that Congress so intended in enacting any of

the criminal statutes providing authority for the grand

jury investigation in this case.

Furthermore, as Eastland v. United States Service-

men’s Fund, 421 U.S. 491, 509-10 n.16 (1975), em-

phasizes, interference with an ongoing legislative com-

mittee investigation is especially to be guarded against

in the interest of preserving legislative branch inde-

pendence.

The United States House of Representatives and the

Senate have successfully resisted similar subpoenas for

8

their institutional records from civil litigants and grand

juries on the grounds that such demands intrude on legis-

lative processes and inhibit free and vigorous legislative

inquiry. E.g., In Re Guthrie, 733 F.2d 634 (4th Cir.

1984) (subpoena to Clerk of House for records of Select

Committee on Aging investigation); United States v.

Ehrlichman, 389 F. Supp. 95, 97 (D.D.C. 1974), aff'd

on other grounds sub nom. United States v. Liddy, 542

F.2d 76 (D.C. Cir. 1976) (executive session transcript).

The courts have sustained the right of the legislature

to maintain the inviolability of its legislative records not

solely by relying on the Speech or Debate Clause, but

because of the manifest need for legislative independence.

In Hearst v. Black, 87 F.2d 68, 71 (D.C. Cir. 1936), the

court determined that it could not restrain use of docu-

ments by a Senate committee, even though unconstitu-

tionally seized, because “the universal rule... is that the

legislative discretion in discharge of its constitutional

functions, whether rightfully or wrongfully exercised, is

not a subject for judicial interference.” While the court

based its reasoning on separation of powers grounds,

it did so without reference to any textually based privi-

lege like speech or debate, and inferentially relied on

state legislative experience. See id., at 72, quoting from

Alpers v. San Francisco, 32 F. 503, 506 (C.C. 1887)

(attempt to enjoin the exercise of legislative power is

not within jurisdiction of court of equity: “This no one

will question as applied to the power of the iegislature

of the state’’).

State legislative independence is fundamental to the

full exercise of state sovereignty, and nothing in Guil-

lock is to the contrary. This Court has held that the

decision to locate a state capitol involves “peculiarly state

powers,” Coyle v. Oklahoma, 221 U.S. 559, 565 (1911),

and that a statute passed by Congress establishing condi-

tions under which a new State was to be admitted to the

union did not “deprive a new State of any of those at-

tributes essential to its equality in dignity and power

9

with other States.” Jd., at 568. The power of the legisla-

ture to conduct its business is plainly even more “essential

to its equality in dignity and power” than its power to

decide the location of its capitol. “Just as surely as

the Framers envisioned a national government capable of

solving national problems, they also envisioned a republic

whose vitality was assured by the diffusion of power not

only among the branches of the Federal Government, but

also between the Federal Government and the States.”

Garcia v. San Antonio Metropolitan Transit Authority,

469 U.S. 528, 581 (1985) (O’Connor, Powell, Rehnquist,

JJ., dissenting). 7

The court of appeals in this case gave no weight or

consideration to these precedents, and this Court should

grant certiorari to resolve the conflict with the decisions

of the other circuits and this Court.

II. This Court Should Invoke Its Supervisory Power Over

Lower Federal Courts To Resolve The Issue In This

Case Because It Presents The Potential For Recur-

ring Confrontation Between Grand Juries And State

Legislatures.

Whether the lower federal courts should use their proc-

esses to enforce grand jury subpoenas directed io state

legislatures for institutional records evidencing their

internal and deliberative processes is a question of great

importance over which this Court should invoke its super-

visory and administrative jurisdiction.

This Court has many times exercised its certiorari dis-

cretion to supervise the lower federal courts and to insure

the proper functioning of the federal judiciary. It has

done so to consider important procedural issues, like the

construction of the federal rules of civil or criminal pro-

cedure, Hickman v. Taylor, 329 U.S. 495 (1947), Schla-

genhauf v. Holder, 379 U.S. 104, 109 (1964), the power

of removal to federal courts, Thermatron Products, Inc.

v. Hermansdorfer, 423 U.S. 336 (1976), or the scope of

10

the federal contempt power, Sacher v. United States, 343

U.S. 1 (1952).

The appropriateness of using the federal grand jury

to subpoena institutional legislative documents from a

state legislature under Federal Rule of Criminal Proce-

dure 17 is an issue that fails within the Court’s super-

visory and administrative jurisdiction, particularly since

it implicates sensitive relationships between federal offi-

cers, United States Attorneys, and state legislatures in all

50 States. See Rizzo v. Goode, 423 U.S. 362, 379 (1976)

(principles of federalism must be given weight in de-

termining “availability and scope of equitable relief” that

can be imposed by federal courts in a system “subsisting

side by side with 50 state judicial, legislative and execu-

tive branches”).

The grand jury has been described as an independent

entity, that is, not wholly a part of either the judicial

or executive branch. Though the United States Attorney,

an executive branch official, may cause subpoenas to

be issued without resort to or consultation with the

court, enforcement lies only with the processes of the

court. And this Court has not hesitated to control the use

of the subpoena and enforcement processes of the lower

courts. For example, see United States v. LaSalle Na-

tional Bank, 437 U.S. 298, 311-316 (1978) (Court an-

nounced standards for district court enforcement of IRS

summons where recipient alleged that agency was using

its civil investigative authority to gather evidence for a

criminal prosecution); McNabb v. United States, 318

U.S. 332, 340 (1943) (on basis of supervisory power

over the administration of justice, Court excluded il-

legally obtained confession from use at criminal trial).

The court of appeals held that the law protects state

legislators only against civil suit, and not against a

grand jury subpoena. In doing so, it misconceived the

nature of a third party subpoena to the legislature

11

acting as a legislature and failed to distinguish that case

from one involving an individual legislator targeted for

prosecution. The former resembles more a civil suit,

for which protection traditionally applies under Tenney,

than it does a criminal proceeding.

The proceedings on the legislature’s motion to quash

are both collateral to the issue of criminality with which

the grand jury is concerned, and distinct from any pro-

ceedings or actions which might arise from the grand

jury’s actions by way of indictment or report. Cohen v.

Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47

(1949). This case, like Tenney, therefore, involves a

civil proceeding of the kind for which state legislatures

have been accorded protection, rather than a criminal

proceeding. Cf. United States v. Nixon, 418 U.S. 683,

713 (1974) (trial subpoena by special prosecutor for evi-

dence relevant to pending criminal case overcame pre-

sumptive presidential privilege).

If the rule announced by the Third Circuit in this case

takes hold, the result will be further confrontation be-

tween United States Attorneys and state legislatures.

It is important for this Court to clarify the power of

the grand jury in this regard to assure viability of

coordinate state legislative processes and to preserve the

power of the States to act in areas essential to the

perpetuation of their sovereignty.

12

CONCLUSION

The Court should grant certiorari to review and resolve

the conflict between the Third Circuit and this and other

courts on this important issue.

Respectfully submitted,

JON R. FELDE STANLEY BRAND *

NATIONAL CONFERENCE BRAND & LOWELL

OF STATE LEGISLATURES 923 Fifteenth Street, N.W.

Suite 500 Washington, D.C. 20005

. 444 N. Capitol St., N.W. (202) 662-9700

Washington, D.C. 20001

(202) 624-5400

Counsel for NCSL

* Counsel of Record

for Amici Curiae

November 2, 1987