Howard v. Webb

¶1SUPPLEMENTAL OPINION ON REHEARING

¶2On rehearing, Petitioners’ contend that the construction we placed on the phrase “treason, felony or breach of the peace” operates to exclude any legitimate function for the constitutional privilege from arrest and renders the privilege a nullity. Petitioners argue that our construction runs contrary to established principles of constitutional interpretation which require language to be construed so as to give it some rational meaning.

¶3In our original decision, this Court followed the United States Supreme Court’s interpretation of the phrase “treason, felony and breach of the peace” as set forth in Williamson v. U.S., 207 U.S. 425, 28 S.Ct. 163, 52 L.Ed. 298 (1908). Our construction of the phrase is consistent with the decisions of a vast majority of jurisdictions which have considered it whether rendered before or after our Constitutional Convention in 1907. As stated in our original decision, the phrase “treason, felony or breach of the peace” is a term of art which acquired a meaning somewhat different from the general definition attributed to each of its parts. It had its roots in English legal history and the earliest reported cases consistently construed the privilege in strict conformance with its Parliamentary antecedents, i.e., that the privilege extended only to civil arrests and not to criminal arrests.

¶4We notice that Illinois has had occasion to recently consider the question in People of the State of Illinois v. Flinn, 47 Ill.App.3d 357, 5 Ill.Dec. 690, 362 N.E.2d 3, promulgated on March 15, 1977. The Illinois Court held that a traffic violation is a “breach of the peace” within the constitutional provision exempting legislators from arrest except for treason, felony or breach of the peace, and a legislator was not exempt from arrest for speeding while returning from a legislative session. The Court said that the Illinois Constitution of 1970 granted the same legislative immunities to legislators as those contained in the 1870 Illinois Constitution. It is interesting to observe that Alaska and Hawaii, the most recently admitted states, adopted similar language in granting legislative immunity privileges in their constitutions.1

¶5*48When the Constitution of the United States was adopted, arrests in civil suits were still common in America. Long v. Ansell, 293 U.S. 76, 55 S.Ct. 21, 76 L.Ed. 208 (1934). Although arrests in civil proceedings may not be “still common” it is sheer speculation to say that under our original decision, the legislative privilege becomes a nullity and there are no circumstances that would bring the privilege into play. Granted, as pointed out by petitioners, it is constitutionally impermissible for a person to be “imprisoned” for his debts (Art. II, § 13, Okl.Const.). This does not necessarily mean that he may not be “arrested” for reasons involving his debts. As noted in the original opinion, and without considering its constitutionality, there is still in full force and effect a law surviving from territorial days which authorizes the arrest of a judgment debtor on an allegation of reasonable grounds to believe the debtor will flee the state with assets subject to application to the debt. 12 O.S.1971, § 844. Likewise, non-criminal contempt of court may give reason for the issuance of a bench warrant for the arrest of an individual, and there also, the privilege might apply.

¶6Petitioners contend that when the United States Supreme Court in Williamson, said that the immunity privilege was applicable only to civil proceedings that it failed to consider and overlooked the vital distinction at English common law between “indictable” offenses and “non-indictable” misdemeanors. Petitioners argue that if this distinction had been recognized the Court would have placed only “indictable” criminal offenses outside the scope of the immunity privilege and the “non-indictable” misdemeanors would have been within the purview of the privilege. Petitioners’ argument is based upon their interpretation of several historian’s comments on the English common law.

¶7We find very little support in the historians comments to sustain petitioners’ position. A comprehensive historical background of the privilege was discussed in Williamson, supra, and Long v. Ansell, supra,discussed the historical background very briefly and cited with approval the Williamson decision and said the immunity was applicable only in civil suits.

¶8In Long, petitioner submitted in his brief the proposition that “the privilege of exemption from service of process is not dependent upon either constitutional or statutory enactments, but has grown up out of public policy, not as a favor to the privileged person, but as an inherent right on the part of the public interest”. This argument was either not pressed before the Court or the Court didn’t find too much merit in it because it didn’t even mention the proposition in its opinion.

¶9In June 1972, the Supreme Court of the United States promulgated United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 33 L.Ed.2d 507. Brewster, a former United States Senator, had been charged with accepting bribes in exchange for promises related to official acts while he was a member of Congress. One of the issues presented was Brewster’s claim that he was immune from prosecution for any alleged act of bribery because of the Speech or Debate clause of Art. 1, sec. 6, of the U.S. Constitution.2 In Brewsterthe Court said: *49during their Attendance at the Session of their Respective Houses . . . ” In Williamson v. United States, 207 U.S. 425, 28 S.Ct. 163, 52 L.Ed. 278 (1908), this Court rejected a claim, made by a Member convicted of subornation of perjury in proceedings for the purchase of public lands, that he could not be arrested, convicted, or imprisoned for any crime that was not treason, felony, or breach of the peace in the modern sense, i.e., disturbing the peace. Mr. Justice Edward Douglass White noted that when the Constitution was written the term “breach of the peace” did not mean, as it came to mean later, a misdemeanor such as disorderly conduct but had a different 18th century usage, since it derived from breaching the King’s peace and thus embraced the whole range of crimes at common law. Quoting Lord Mansfield, he noted, with respect to the claim of parliamentary privilege, “[t]he laws of this country allow no place or employment as a sanctuary for crime . . . Id. at 439, [28 S.Ct. at 167,] 52 L.Ed. at 287.

*48“The sweeping claims of appellee would render Members of Congress virtually immune from a wide range of crimes simply because the acts in question were peripherally related to their holding office. Such claims are inconsistent with the reading this Court has given, not only to the Speech or Debate Clause, but also to the other legislative privileges embodied in Art. I, § 6. The very sentence in which the Speech or Debate Clause appears provides that Members “shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest

¶10*49The subsequent case of Long v. Ansell, 293 U.S. 76, 55 S.Ct. 21, 79 L.Ed. 208 (1934), held that a Members immunity from arrest in civil cases did not extend to civil process. Mr. Justice Brandéis wrote for the Court:

¶11“Clause 1 [of Art I, § 6] defines the extent of the immunity. Its language is exact and leaves no room for a construction which would extend the privilege beyond the terms of the grant.” Id., at 82, [55 S.Ct. at 22,] 79 L.Ed. at 209. We recognize that the privilege against arrest is not identical with the Speech or Debate privilege, but it is closely related in purpose and origin. It can hardly be thought that the Speech or Debate Clause totally protects what the sentence preceding it has plainly left open to prosecution, i.e., all criminal acts.”

¶12Rehearing Denied.

¶13All the Justices concur.