Joint Legislative Committee of the Legislature v. Strain

ON REHEARING IN NO. 51605.

HAMLIN, Justice:

Rehearing was granted in this case, combined on original hearing with Case No. 51,567 of the docket of this Court, rehearing denied, in order that we might reconsider some of the leg'al issues raised and adjudicated on original hearing.

On February 4, 1971, the Joint Legislative Committee of the Legislature of the State of Louisiana, created by Senate Concurrent Resolution No. 31, as amended by Senate Concurrent Resolution No. 76 of the Louisiana Legislature of 1970 (hereinafter referred to as the Committee), through its chairman, instituted this contempt action in the 19th Judicial District Court, Parish of East Baton Rouge, State of Louisiana, praying that:

“(1) A rule nisi issue herein directed to the defendant, Representative James R. Strain, ordering him to show cause, at a time and date to be fixed by this Honorable Court, why he should not be adjudged guilty of contempt of the Joint Legislative Committee and of the Legislature for failure to appear and for failure to produce documents, papers and records.

“(2) In due course defendant be adjudged guilty of contempt of the Joint Legislative Committee and the Legislature, and be punished according to law.”

After trial on the merits, numerous exceptions filed by the defendant having been overruled, the district court on March 8, 1971, adjudged James R. Strain (Dr.) in contempt of the Committee and of the Louisiana Legislature by reason of failure to respond to a subpoena and to a subpoena duces tecum served upon him and requiring him to appear before the Committee at a hearing on February 4, 1971. The trial court ordered that as punishment for such contempt, the defendant be confined to the East Baton Rouge Parish Jail for a period of ten days in accordance with Art. Ill, Sec. 11, La.Const. of 1921,1 and Senate Concurrent Resolution No. 31, as amended *526by Senate Concurrent Resolution No. 76 of the Louisiana Legislature of 1970, said period of confinement to commence upon further order of the court. Defendant appealed to the Court of Appeal, which court dismissed his appeal.

We granted defendant’s application to review the judgment of the Court of Appeal, First Circuit, which dismissed his appeal, 248 So.2d 105, 259 La. 697, 252 So.2d 433, No. 51,567 of the docket of this Court, as well as his application to review the judgment, supra, of contempt rendered by the trial court. 248 So.2d 105, 259 La. 698, 252 So.2d 433, No. 51,605 of the docket of this Court.

On original hearing, we affirmed the judgment of the Court of Appeal, supra, and as stated supra denied rehearing; we affirmed the judgment of the trial court, supra, finding James R. Strain guilty of contempt.

Herein, defendant-applicant for rehearing urges:

1. “It was an error to hold, that notwithstanding the Declinatory Exception to the Venue filed by Representative James R. Strain [Representative Strain], a domiciliary of Caddo Parish, Louisiana, that this matter was properly heard by the Civil District Court in East Baton Rouge Parish.”

2. "It was also an error to hold that the District Court had the authority to punish Representative Strain for contempt of the Legislature.”

3. It was error not to issue an order for missing parts of the record.

4. “The majority opinion erred in holding that Strain was not immune from appearing at the Committee meeting just because he was conducting his own Legislative Committee Meeting of the Statewide Health Service Committee, which was also a joint legislative committee.”

The Committee urges that the judgment of the district court should be affirmed.

Senate Concurrent Resolution No. 31, signed May 21, 1970 by the Lt. Governor, President of the Senate, and the Speaker of the House, provided in part:

“WHEREAS, a number of unsubstantiated allegations have been made of criminal influences upon the government of this state and its political subdivisions and that certain elected and/or appointed officials and employees of the state and its political subdivisions have been and/or are being-influenced by members of organized crime; and

“WHEREAS, the responsibilities of the Legislature to the citizens of Louisiana demand that allegations of this kind not be allowed to stand without investigation to determine their veracity and to present the actual facts of the situation to the people and, if necessary, to the proper law enforcement officials for action, as well as *528. to provide information upon .which the Legislature may take such steps as are required to protect the people of Louisiana against any influences upon the government which serves them which can be attributed to organized crime or, if none exist, then to make known this fact in order to restore public confidence in government and in the public officials who "serve it.

' “THEREFORE BE IT RESOLVED by the Senate of the Legislature of Louisiana, the House of Representatives thereof concurring, that there is hereby created a joint legislative committee which shall be composed of seven members, three of whom shall be appointed by the President of the Senate from the membership of the Senate and- four of whom shall be appointed by •the Speaker of the House of Representatives from the membership of the House, and which shall undertake an immediate .comprehensive, in-depth investigation, in- . quir-y and hearings into all matters relating to the question of influences on the government of this state and/or its political subdivisions and the officials and employees of either.

íjc s}:

. “BE IT FURTHER RESOLVED that there is hereby created an advisory committee which shall have authority to attend all meetings, public and private, of the joint legislative committee herein created, and shall consult, advise with and offer assistance, consultative services and recommendations to said joint legislative committee.

“BE IT FURTHER RESOLVED that the advisory committee above provided for shall be composed of the chairman of the Louisiana Commission on Law Enforcement and Administration of Criminal Justice; the respective deans of the Louisiana State University Law School, Tulane University Law School, Southern University Law School and Loyola University Law School; the president of the Louisiana AFL-CIO and the president of the Louisiana State Chamber of Commerce.

(( ifi *

“BE IT FURTHER RESOLVED that the committee shall have the power and authority to hold hearings, subpoena witnesses, administer oaths, compel the production of books, documents, and records, papers public or private, and to do all other things necessary to accomplish the purposes of this Resolution. * * *

“BE IT FURTHER RESOLVED that failure to comply with any order of the committee issued in accordance with or under authority of this Resolution, refusal to testify, or any act of disrespect of or disorderly or contemptuous behavior before the committee shall constitute contempt of the committee and the committee, through its counsel, shall have the power and authority to institute proceedings in *530any court of competent jurisdiction for the punishment thereof in accordance with the penalties fixed by Article III, Section 11 of the Louisiana Constitution, and, in addition, false swearing or perjury before the committee shall in like manner, be punished in accordance with the laws of the state.2 [Emphasis ours]

“BE IT FURTHER RESOLVED that in addition to the power and authority of *532the committee to punish for contempt as provided in Article III, Section 11 of the Constitution, the committee also shall have the power and authority to invoke the provisions of R.S. 24:4 through R.S. 24:6 in order to subject persons guilty of contempt of the committee to the penalties provided for therein.3

«* * * ”

Senate Concurrent Resolution No. 76, signed June 9, 1970 by the Lt. Governor, President of the Senate, and Speaker of the Plouse, spelled out the powers of the Advisory Committee. It provided: “that the members of the advisory committee * * * shall have the right and authority to freely and orally propound questions to all witnesses appearing before the said joint legislative committee to the same extent as other members of said committee so long as same is conducted in an orderly and parliamentary fashion.”

*534During argument on rehearing in this Court, the question was raised as to whether the present matter is now moot because of the fact that the Committee is no longer in existence, and defendant, if permitted and willing to do so, would no longer be able to purge himself of contempt by giving testimony and producing records, tapes, etc.

We do not find that this matter is moot. Defendant’s disobedience was committed during the life of the Committee, and the sentence of the district court was rendered during March, 1971. Defendant made no attempt to purg'e himself; at all times, he refused to comply with the Committee’s demands. He made no attempt to purge himself after the trial court sentenced him; he made no attempt to purge himself before the 1971 Legislature adjourned. He appealed his sentence to the Court of Appeal; he applied to this Court for writs. His counsel argued the case herein on original-hearing; his counsel applied for this rehearing and appeared on the day of argument, urging the errors, supra, assigned to our original opinion and decree.

Assignment of Error No. 1, supra, avers that it was error for the Civil District Court in East Baton Rouge Parish to hear this matter. Because of findings which we shall make infra, and because of the thorough manner in which this assignment was treated in our original opinion, there is no need for a further discussion of venue. The 19th Judicial District Court, Parish of East Baton Rouge, under the instant facts and circumstances, was vested with jurisdiction to hear this contempt proceeding and thereafter impose sentence.

Dr. Strain next contends (Assignment of Error No. 2) that the 19th Judicial District Court did'not have authority to punish him for contempt of the Legislature. He argues that as a member of the Legislature, he was exempt from the provisions of Art. III, Sec. 11, La.Const. of 1921; he further argues that LSA-R.S. 24:4 through LSA-R.S. 24:6 are inapplicable here, for, by their terms (R.S. 24:4C), the Legislature reserved unto itself and to the Senate and to the House of Representatives all inherent and all constitutional powers to punish for contempt. This reserved power as it relates to Dr. Strain as a Representative, defendant asserts, is embodied within Art. Ill, Sec. 10, La.Const. of 1921.4 He further asserts: “Since the power of the courts to punish for contempt is limited by law [1921 Constitution of the State of *536Louisiana, Article XIX, Section 17] and since the power to adjudge one to be guilty of contempt and to order his confinement is a power which can only be exercised in strict conformity with the rules of procedure which the laws of a state provide as a prerequisite to the validity of an adjudication of contempt [Ex parte Battelle, 207 Cal. 227, 277 P. 725, 735], Representative Strain could not have been guilty of contempt of the legislature for the only reference in Senate Concurrent Resolution No. 31 to contempt punishment was to Article III, Section II (sic.), which deals only with punishment of non-members of the legislature and R.S. 24:4 through 24:6, which, even if applicable to legislators, was not used.”

Initially, we shall discuss the nature, legality, and effect of legislative resolutions.

“ * * * resolution is not a law or an ordinance but merely the form in ■which a legislative body expresses a determination or directs a particular action. An ordinance prescribes a permanent rule for conduct of government, while a resolution is of special or temporary character. * * * ” Kalamazoo Municipal Util. Ass’n v. City of Kalamazoo, 345 Mich. 318, 76 N.W.2d 1 (1956).
“Generally, it may be said that a legislative body uses a resolution to express an opinion or purpose with respect to a given matter or thing and it is temporary in nature, while a law is intended to direct and control permanently matters applying to persons and things in general. This definition has been variously expressed in: City of Cape Girardeau v. Fougeu, 30 Mo.App. 551, 557; Ex parte Hague, 104 N.J.Eq. 31, 144 A. 546, 559; Chasis v. Tumulty, 8 N.J. 147, 84 A.2d 445, 449[3]; Scudder v. Smith, 331 Pa. 165, 200 A. 601, 604; Steward v. Rust, 221 Ark. 286, 252 S.W.2d 816; Wilder v. American Produce Co., Tex.Civ.App., 147 S.W.2d 936, 938.” State v. Atterbury, 300 S.W.2d 806 Mo. (1957).
“ ‘Resolution’ is also defined as meaning a suggestion or direction in writing, concurred in by the two houses of the assembly, if there be two houses, or passed by One house, if there be but one, and not submitted to the executive for his approval. * * *
“A resolution is variously described as being administrative or ministerial in character; special and temporary in character. It deals with matters of a special or temporary character, and has only a temporary effect.
“A resolution is not a law, but is the mere expression of an opinion, or merely the form in which the legislative body expresses an opinion, and is used whenever the legislative body passing it wishes merely to express an opinion concerning some given matter or thing. It is, gen*538erally, not an order, but a mere expression of view on which an order issues to make it effective.” 77 C.J.S. Resolution, p. 314.
‘A resolution or order is not a law, but merely the form in which the legislative body expresses an opinion. * * * mere ministerial acts may be in the form of resolutions.’ Other jurisdictions have been even more explicit in stating that an oral motion is a form of resolution. Meade v. Dane County, 155 Wis. 632, 145 N.W. 239, says: 'An oral motion passed by the common council of a city thereupon becomes a resolution.’ It was likewise so stated in City of Green Bay v. Brauns, 50 Wis. 204, 6 N.W. 503.” Steward v. Rust, 252 S.W.2d 816 (Ark. 1952).

Art. V, Sec. 17, La.Const. of 1921, provides:

“Orders, votes and resolutions of either or both houses of the Legislature, affecting the prerogatives and duties thereof, or relating to adjournment, to amendments to the Constitution of this State or of the United States, to the investigation of public officers, and the like, shall not require the signature of the Governor; and such resolutions, orders and votes may empower legislative committees to administer oaths, to send for persons and papers, and generally make legislative investigations effective.” Cf. Joint Legislative Committee v. Fuselier, 174 So.2d 817 (La.App.1965); Sullins v. City of Shreveport, 252 La. 423, 211 So.2d 314; Sylvestre v. St. Landry Parish School Board, 164 La. 204, 113 So. 818.

Defendant in essence urges that a legislative act rather than a resolution was necessary to give the Committee the powers which it exercised against him.

We find that the Legislature had the power under the above authorities, particularly our Constitution, and those to be cited and quoted infra, to pass the instant resolution. It also had the right to incorporate into the resolution the provisions which herein affect the defendant. We find no prohibition in our Constitution restricting or forbidding the enactment of a resolution such as Senate Concurrent Resolution No. 31, as amended by Senate Concurrent Resolution No. 76. It is a familiar doctrine, that the Legislature of a State, unlike Congress, which cannot do anything which the Federal Constitution does not authorize, may do everything which the State Constitution does not prohibit. Ricks v. Department of State Civil Service, 200 La. 341, 8 So.2d 49 (1942). Defendant has not proved that the present resolution is unconstitutional. Cf. State v. Guidry, 247 La. 631, 173 So.2d 192; Hamilton v. McKeithen, 254 La. 683, 226 So.2d 494; Joint Legislative Committee v. Fuselier, 174 So.2d 817.

*540Having found that the Legislature had the right to create the Committee, we now find that the Committee was a Legislative Committee and possessed certain powers inherent in the Legislature; the Committee was constituted an agent of the Legislature, possessing a reasonable delegation of the authority of the Legislature to do what the Legislature, composed of more than 100 members, could do. It avoided cumbersome, expensive procedure by acting efficiently.

The purpose for the creation of the Committee set forth in Senate Concurrent Resolution No. 31 was a legitimate one. The investigations directed by the resolution were vital to the State of Louisiana. The following statement by the United States Supreme Court in Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed. 2d 1273 (1957), is applicable herein:

“We start with several basic premises on which there is general agreement. The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste. But, broad as is this power of inquiry, it is not unlimited. There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress. This was freely conceded by the Solicitor General in his argument of this case. Nor is the Congress a law enforcement or trial agency. These are functions of the executive and judicial departments of government. No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress. Investigations conducted solely for the personal aggrandizement of the investigators or to ‘punish’ those investigated are indefensible.
"It is unquestionably the duty of all citizens to cooperate with the Congress in its efforts to obtain the fact needed for intelligent legislative action. It is their unremitting obligation to respond to subpoenas, to respect the dignity of the Congress and its committees and to testify fully with respect to matters within the province of proper investigation. This, of course, assumes that the constitutional rights of witnesses will be respected by the Congress as they are in a court of justice.”

Art. III, Sec. 10, La.Const. of 1921, supra, recites that each house of the Legislature may punish its members for contempt; there are no penalties spe*542cifically provided except expulsion; it does not provide that each house shall be the exclusive condemnor of its members. We find no logical reason why the Legislature could not by the instant resolution provide for judicial enforcement of contempt of a legislative committee by a court of competent jurisdiction. Assigned to the judiciary were judicial matters of which it could accept jurisdiction.

Senate Concurrent Resolution No. 31 authorized the institution of contempt proceedings in any court of competent jurisdiction and stated that punishment should be in accordance with the penalties fixed by Art. III, Sec. 11, La.Const. of 1921— not to exceed ten days for each offense. The resolution also stated that the Committee had the additional power to invoke the provisions of LSA-R.S. 24:4 through LSA-R.S. 24:6. This additional power was a supplementary grant. LSA-R.S. 24:4, supra, recites that “any person” shall be in contempt if he willfully defaults by failing to appear or to produce papers or other evidence as ordered. LSA-R.S. 24:4 therefore applied to Dr. Strain, and its provisions were and are applicable herein. Thus, as stated in our original opinion, the Committee’s authority to punish for contempt extended to both members and nonmembers alike. There is no limitation on a legislator’s refusing to testify.

As found in our original opinion, LSA-R.S. 24:5, supra, is not exclusive. Proceedings by petition for rule to show cause were proper under the instant facts and circumstances. If the Committee had the right to subpoena, which we have found that it did, then it had the right to institute the present proceedings. “An individual does not move beyond the restraints of law, common or statutory, when he accepts membership in the Legislature. He remains subject to them except insofar as they preclude acceptance of legislative office by one constitutionally qualified for it or impair performance of legislative duties.” Reilly v. Ozzard, 33 N.J. 529, 166 A.2d 360, 89 A.L.R.2d 612.

LSA-R.S. 24:4, subd. C provides that the Legislature reserves to itself and to the Senate and to the House of Representatives all inherent and all constitutional powers to punish for contempt. The reservation does not prohibit the Legislature’s permitting the judiciary to punish. Therefore, the reservation, peculiar to the Legislature, could be given up by the Legislature in instances where it thought it more judicious and expedient for another branch of government to assess punishment. It is legion that laws should be read together in order to give them proper and intended effect.

Defendant (Assignment of Error No. 3) contends that certain missing parts of the record should have been ordered to be produced in this Court. Absent these rec*544ords, we have been able to decide this matter; therefore, we find defendant’s contention without merit.

With respect to Assignment of Error No. 4, we correctly stated in our original opinion :

“In a motion for summary judgment Representative Strain alleges that on the date (February 4, 1971) when he was ordered to appear before the committee in the city of Baton Rouge, he, as chairman, was conducting a hearing of the Statewide Health Service Committee, a committee established by House Concurrent Resolution No. 95 of the Extraordinary Session of 1968. For this reason, he argues, he could not be punished for contempt. Without citing authority for his position, he contends that members of the legislature are exempt, that is, not subject to the power of subpoena or any other judicial process, during terms of the legislature or while in attendance at duly constituted legislative committee hearings.

“While Section 1 of Title 24 of the Revised Statutes stays civil proceedings against members of the legislature ‘during their attendance at the sessions of their respective houses,’ it grants no such exemption from subpoena or attendance at a duly constituted legislative committee hearing.’’

We do not find from an examination of the record that Dr. Strain had subpoenaed, summoned or requested any members of the Committee to appear before his committee on February 4, 1971. We find no interference of the prerogatives of one committee with those of another committee. The record does not disclose that it would have been impossible or inexpedient for Dr. Strain to have delegated his chairmanship duties to another member of his committee during the time he was called upon to testify. The record is devoid of a showing that Dr. Strain was precluded from having his committee meet on a date other than February 4, 1971. The record is also devoid of a showing of cooperation between Dr. Strain and the Committee with respect to the instant subpoena. Under these facts and circumstances, Assignment of Error No. 4 is without merit.

For the reasons assigned and for the reasons assigned in our original opinion, the judgment and decree originally rendered in this matter is approved, reinstated, and made the final judgment of this Court.

BARHAM, J., dissents adhering to original opinion. TATE, J., dissents for reasons assigned on original hearing. DIXON, J., dissents.

. “Either house, during the session, may punish by imprisonment any person not a member who shall have been guilty of disrespect, or disorderly or contemptuous behavior; but such imprisonment shall not exceed ten days for each offense.” Art. Ill, Sec. 11, Ea.Const. of 1921.

. The Committee’s petition for a rule to show cause why Representative Strain should not be punished for contempt al- ' legfed in part:

“5.
“The Committee is required by the Resolution to submit its final report and recommendations to the Legislature and the Governor not later than thirty days prior to the day on which the 1971 Legislature convenes in regular session.
“6.
“Since May, 1970. the Committee has been conducting its investigation and has held a'series of hearings at which many witnesses have testified.
“7.
“Representative James R. Strain * * * has. previously appeared before the Committee . and. testified, under oath, relative to an alleged attempt or attempts to unlawfully influence his vote during the 1970 session of the Legislature.
“8.
‘/Subsequent to that- appearance, the Committee is informed and believes, and upon such information and belief alleges, that Representative Strain has publicly stated that he has in his possession certain evidence, including tape recordings, related to that matter, which he did not previously present to the Committee.
“9.
“On January 28, 1971, the Committee issued a subpoena directed to Representative Strain, ordering him to appear before the Committee at two o’clock P.M. on' Thursday, February 4, 1971, at the State Capitol Building in Baton Rouge, Louisiana.
“10.
“That subpoena was personally served upon Representative Strain on January 29, 1971, by an officer of the Louisiana State Police.
“11. "
“On January 28, 1971, the Committee” issued a subpoena duces tecum directed-to Representative Strain, ordering him to” appear before the Committee at two o’clock P.M. on Thursday, February 4, - 1971, at the State Capitol Buildiiig, - Baton Rouge, Louisiana, and to bring' with him and produce the following documents, papers or records:
“(a) Any and all recordings, including tape recordings, of conversations which may have occurred between Representative James Strain and -any of the following persons:
“Governor John J. McKeithen,
“Representative Carl Wagner,
“Mr. Victor Bussie.
“ (b) Any and all transcripts or excerpts thereof of the aforesaid recordings.
“12.
“The subpoena duces tecum was personally served upon Representative Strain on January 29, 1971, by an officer of the Louisiana State Police.
“13.
“At two o’clock P.M. on Thursday, February 4, 1971, the Committee met in public session at the State Capitol Building in Baton Rouge, Louisiana, at which time Representative Strain did not appear and did not produce the documents, papers or records called for.
“14.
“Representative Strain is therefore in contempt of the Committee and the Legislature.”

. La.R.S. 24:4 provides :

“A. Whenever the legislature or either house of the legislature, or whenever any committee of either house or any joint committee of both houses or any sub-committee of any such committee, which committee, joint committee or sub-committee has been specifically and expressly granted the subpoena power, has summoned any person as a witness to give testimony or to produce papers or other evidence upon any matter under inquiry before such house, committee, joint committee or subcommittee, such person shall be guilty of contempt of the legislature if he or she
“(1) willfully defaults by failing to appeal- or to produce papers or other evidence, as ordered, or
“(2) having appeared, refuses to take the oath or affirmation of a witness, or
•‘(3) having appeared, refuses to answer any question pertinent to the question under inquiry. [Emphasis ours]
“B. Whoever is found guilty of contempt of the legislature under the provisions of this section shall bo punished by a fine of not more than one thousand dollars or by imprisonment for not more than six months, or both.
“C. The provisions of R.S. 24:4 through R.S. 24:6 are hereby declared to be supplemental to the powers of the legislature and of the senate and of the house of representatives to punish for contempt, and the legislature hereby reserves to itself and to the senate and to the
house of representatives all inherent and all constitutional powers to punish for contempt." (Emphasis ours)

La.R.S. 24 :5 provides :

“Whenever a statement of facts alleged to constitute contempt under R.S. 24:4 is reported to either house of the legislature while the legislature is in session, or whenever, while the legislature is not in session, such statement is reported to and filed with the president of the senate or the speaker of the house of representatives, said president or speaker, as the case may bo, shall certify the statement to the district attorney of a district whore venue lies, as provided in the general laws governing venue or as provided by R.S. 24:6 in the case of offenses defined in R.S. 24:4(A), and the district attorney shall institute and prosecute a criminal proceeding against the accused for contempt of the legislature under the provisions of R.S. 24:4.”

La.R.S. 24 :6 provides :

“Any other provisions of law to the contrary notwithstanding, any offense defined by the provisions of R.S. 24:4 (A) shall be deemed to have been committed (1) in the parish where the subpoena issued, (2) in the parish where the offender was served with the subpoena or (3) in the parish where the subpoena ordered the offender to give testimony or to produce papers or other evidence, and the trial of the offender for such offense may take place in any of such parishes.”

. “Bach house shall be the judge of the qualifications, election, and returns of its own members, choose its own officers, except the president of the Senate, determine the rules of its procedure, not inconsistent with the provisions of this Constitution, ancl may punish its members for disorderly conduct and contempt, and, with the concurrence of twó-thirds .of all its members elected, may expel a member.” Art. Ill, Sec. 10, La.Const. ‘of 1921.