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April 21, 1992


The opinion of the court was delivered by: THOMAS PENFIELD JACKSON

 This is a statutory proceeding under the Ethics in Government Act of 1978 ("EIGA" or "the Act"), 2 U.S.C. §§ 701 et seq. (1985), initiated by the U.S. Department of Justice pursuant to 2 U.S.C. § 706, against a Member of Congress to assess civil penalties for the defendant's alleged knowing and willful failure to file truthful financial disclosure statements with the Clerk of the U.S. House of Representatives in compliance with Sections 701(a) and 702(a) of the Act. *fn1"

 The defendant, Charles G. Rose III, U.S. Representative from the Seventh District of North Carolina, has moved pre-emptively to dismiss the complaint on, inter alia, the ground of an asserted constitutional immunity, and has obtained a stay of discovery pending disposition of his motion. His motion is supported by the Speaker of the House of Representatives and a "bipartisan leadership group," comprised of the Majority and Minority Leaders and Whips (hereinafter "the House leadership"), appearing as amicus curiae.

 The Court has concluded that the only issue appropriately before it for decision at this stage of the case is whether the action may be maintained at all consistently with the separation of powers principle as it finds expression in certain provisions of the U.S. Constitution, and, in particular, with the Speech or Debate Clause, U.S. Const., art. I, § 6, cl. 1. Having determined to deny the motion to dismiss the complaint on the constitutional ground, the Court observes that its decision is subject to immediate appeal. See Helstoski v. Meanor, 442 U.S. 500, 506-08, 61 L. Ed. 2d 30, 99 S. Ct. 2445 (1979); Dombrowski v. Eastland, 387 U.S. 82, 85, 18 L. Ed. 2d 577, 87 S. Ct. 1425 (1967); Tenney v. Brandhove, 341 U.S. 367, 377, 95 L. Ed. 1019, 71 S. Ct. 783 (1951). Anticipating such an appeal, the Court therefore reserves judgment on the nonconstitutional grounds asserted for dismissal, none of which will be reached if Rep. Rose is correct as to his constitutional immunity from suit.


 The complaint, filed in May, 1989, alleges that Rep. Rose received multiple personal loans in principal amounts exceeding $ 10,000, and aggregating at least $ 138,000, between the years 1979 and 1985 from various commercial lenders and his own campaign committee, none of which he disclosed, as required by 2 U.S.C. § 702(a), on his annual financial disclosure statements filed with the Clerk of the House. It also alleges that Rep. Rose failed to report as a "gift" the interest forgone on loans from his campaign committee or the use of a certificate of deposit belonging to his campaign committee he pledged as collateral for another personal loan.

 It appears, however, that in October, 1986, the Committee on Standards of Official Conduct of the House of Representatives (hereinafter the "Ethics Committee") had received a complaint of some of the same alleged reporting derelictions on the part of Rep. Rose. The Ethics Committee then commenced its own investigation, and concluded its proceedings thereon on March 23, 1988, with a report, In the Matter of Representative Charles Rose III: H.R. Rep. No. 526, 100th Cong., 2d Sess. (1988) (hereinafter the "Rose Report"). The Rose Report found Rep. Rose to have violated two of the Rules of the House of Representatives, Rules XLIII, cl. 6, and XLIV, cl. 2, *fn2" and recommended that the Ethics Committee issue him a "formal and public reproval" for his transgressions. The letter of reproof duly issued, but there the matter came to rest insofar as the House of Representatives and its Ethics Committee was concerned. No further penance was exacted of Rep. Rose, and no direction was given him by the Rose Report or the letter of reproof to correct the deficient financial disclosure forms by formal amendment.

 The disposition made by the Ethics Committee of the charges against Rep. Rose precipitated an exchange of correspondence between the Committee and the Department of Justice as to its sufficiency as punishment and redress. This complaint followed shortly thereafter.

 The Department of Justice asks for an assessment of a civil penalty against Rep. Rose in the maximum amount of $ 5000 on each of the six counts of the complaint (each count representing a reporting year), and an injunction against his violation of the financial reporting requirements of EIGA in the future.

 It is the position of the defendant Rep. Rose, argued chiefly on his behalf by the House leadership as being a matter of profound constitutional importance, that in those instances in which the House itself undertakes to discipline a Member for ethical transgressions -- at least those not amounting to criminal misconduct -- the Executive Branch is without power to add to the sanction imposed, if any. The House must be deemed to have primary (and, if it has been exercised, exclusive) jurisdiction over its Members as to their ethical comportment, a circumstance commanded by the principle of the separation of powers in the interest of interbranch "comity," as expressed in the Constitution itself in art. I, §§ 5 and 6, and recognized and confirmed by EIGA in 2 U.S.C. § 705(a). *fn3"

 The Supreme Court has on several occasions in recent times sought to define the limits of the immunity conferred upon Members of Congress by the Speech or Debate Clause in actions commenced by the Department of Justice. In United States v. Johnson, 383 U.S. 169, 15 L. Ed. 2d 681, 86 S. Ct. 749 (1966), the Supreme Court affirmed the dismissal (on appeal) of a criminal charge against a Congressman of conspiring to make a speech on the House floor for a payment from private sources. After tracing the origins of the Speech or Debate Clause through England's history of royal prosecutions of fractious members of Parliament, the Supreme Court observed that the inclusion of the Clause in the U.S. Constitution was "to prevent intimidation [of Members of Congress] by the executive and accountability before a possibly hostile judiciary." Id. at 181. But, although the Clause is to be "read broadly to effectuate its purposes," the Supreme Court said, 383 U.S. at 180, it nevertheless does not preclude a prosecution which "does not draw in question the legislative acts of the defendant member of Congress or his motives for performing them."

 Then in United States v. Brewster, 408 U.S. 501, 33 L. Ed. 2d 507, 92 S. Ct. 2531 (1972), the Supreme Court reversed dismissal of an indictment charging a United States Senator with accepting private money in return for unspecified services possibly related to pending legislation, reiterating that the Speech or Debate Clause confers immunity only for "legislative acts," i.e., those acts "clearly a part of the legislative process -- the due functioning of the process." 408 U.S. at 516 (emphasis in original). By that phrase (taken from Johnson, 383 U.S. at 172), the Supreme Court said, was meant "only acts generally done in the course of the process of enacting legislation." Brewster, 408 U.S. at 514. *fn4"

 Other cases, involving the extent of Speech or Debate Clause immunity in legal proceedings instigated by the Executive Branch other than criminal prosecutions, have similarly employed the analysis ordained by Johnson and Brewster to ascertain whether the conduct in question represented a "legislative act." In Gravel v. United States, 408 U.S. 606, 33 L. Ed. 2d 583, 92 S. Ct. 2614 (1972), for example, in passing upon a motion to quash a grand jury subpoena, the Supreme Court found a Senator's reading of classified government documents before a ...

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