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01/27/76 BISHOP v. WAYNE CIRCUIT JUDGE

January 27, 1976

BISHOP
v.
WAYNE CIRCUIT JUDGE



Fitzgerald, J. Kavanagh, C. J., and Williams, Levin, Coleman, and Lindemer, JJ., concurred with Fitzgerald, J. Ryan, J., took no part in the decision of this case.

SYLLABUS BY THE COURT

1. Process -- Constitutional Law -- Legislative Immunity.

The constitutional privilege protecting legislators from civil process obtains when the Legislature is in regular session, including intra-session adjournments (Const 1963, art 4, §§ 11, 13).

2. Process -- Constitutional Law -- Legislative Immunity -- Due Process.

A plaintiff in a civil suit did not advance due process interests sufficient to outweigh the legislative privilege from civil process where the plaintiff sought discovery from a legislator who was not a party in the suit to prove a point not in dispute, there was no indication that the legislator's testimony was crucial to the maintenance of suit or that the facts sought to be discovered from him were unavailable through other sources (Const 1963, art 4, § 11).

The opinion of the court was delivered by: Fitzgerald

An original action in the Court of Appeals for superintending control was brought by plaintiff Donald E. Bishop, a State Senator, against defendant Wayne Circuit Judge James Montante for an order to compel quashing a subpoena for taking plaintiff's deposition on September 5, 1974 and requiring plaintiff to produce certain documents, on the basis of plaintiff's privilege against service of civil process during a session of the Legislature. The subpoena arose out of an action against the Michigan State Police and others, and the plaintiffs in that action caused the subpoena to be served on Senator Bishop, who was not a party to it. The Senate had not on the date of service of the subpoena adjourned its regular session sine die, but had recessed from July 13 until September 17, 1974. Judge Montante denied plaintiff Bishop's motion that the subpoena be quashed. The Court of Appeals, Lesinski, C. J., and V. J. Brennan and Bashara, JJ., ordered that the subpoena be quashed (Docket No. 21507). Defendant appeals. Held:

1. The word "sessions" in Const 1963, art 4, § 11, which creates legislative immunity from civil process, includes regular sessions and special sessions, but does not mean only "working sessions" when the Legislature is actually sitting. Legislative business is not always confined to days when the Legislature is actually sitting and the policy which underlies the privilege is aimed at potential as well as actual distraction from a legislator's public duty.

2. The Constitution specifies the period during which the legislative privilege applies. It is conceivable that immunity unreasonably extended could amount to a denial of due process, particularly if the legislator were an essential party to the litigation. If there is to be a judicial determination that the privilege must give way, the inquiry must focus on whether the need in the individual case is compelling.

3. This case is decided on the facts before the Court. The subpoena seeks discovery from a non-party in a civil case to prove a point not in dispute and there is no indication that plaintiff Bishop's testimony is crucial to the maintenance of suit or that the facts sought to be discovered from him are unavailable through other sources. The constitutional privilege protecting legislators from civil process obtains when the Legislature is in regular session as defined in Const 1963, art 4, § 13 and this case on its facts does not advance due process interests sufficient to outweigh that privilege.

Affirmed.

Defendant Wayne Circuit Judge appeals from an order of the Court of Appeals quashing a subpoena. The subpoena directed plaintiff, a state senator, to give a pretrial discovery deposition and to produce certain documents in connection with a civil action which had been assigned to defendant. The issue before us is whether, on the facts of this case, we should judicially construe an exception for intra-session adjournments to this state's constitutional provision granting senators and representatives immunity "from civil arrest and civil process during sessions of the legislature and for five days next before the commencement and after the termination thereof". *fn1 (Emphasis supplied.)

The action out of which arose the instant complaint for superintending control was brought by one Walter Benkert and a non-profit corporation, Michigan Association for Consumer Protection, for themselves and all persons similarly situated. Named as defendants in that suit were the Michigan State Police, its Director, Col. George Halverson, and Governor William G. Milliken. The complaint alleged that the state police, acting at the request of a state legislator, *fn2 had conducted investigations of the named plaintiffs. It requested that such investigations be permanently enjoined, and that the fruits thereof be produced before the court for destruction. Defendants therein, through the attorney general, answered the complaint, admitting the following: that the state police had been contacted by a state legislator to conduct an investigation of the named plaintiffs; that the scope of the Benkert investigation included his background and relationship with MACP; that the scope of the investigation of MACP included its background, finances, objectives and membership. Defendants pleaded no contest to the allegation that the state police had exceeded its statutory authority in conducting these investigations.

In connection with the above action, on August 30, 1974, the plaintiffs therein caused to be served on plaintiff Bishop a subpoena directing him to appear at a certain law office at 11:30 a.m. on September 5, 1974, to testify and produce documents. On September 5, plaintiff Bishop filed a motion supported by affidavit in the trial court requesting that the subpoena be quashed on the grounds inter alia that he was privileged from civil process. The motion was denied by defendant who reasoned that, although the Legislature had convened on the second Wednesday in January 1974 and had not as of the date of the purported service adjourned its regular session sine die, ...


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