Blondes v. State

Murphy, C. J., delivered the opinion of the Court. Maryland Code, Article 27, Section 23 provides that it shall constitute the offense of bribery for “any member of the General Assembly of Maryland * * * [to] demand or receive any bribe, fee, reward or testimonial for the purpose of influencing him in the performance of his official duties, or for neglecting or failing to perform the same.” Appellant Blondes, a lawyer and Montgomery County Delegate to the General Assembly of Maryland from 1962 to 1970, was charged with violating this statute; the indictment alleged, in two counts, that on December 10, 1967 Blondes demanded, and on January 4, 1968, he received a fee of $5,000 from “The Montgomery County Bowling Proprietors’ Association, C. Edward Goldberg, Leroy Rinaldi, William S. Glennie, Revelle Stuart Armiger, and persons unknown * * * for the purpose of influencing * * * [him] in the performance of his official duties.” Prior to trial, Blondes moved to dismiss the indictment on the ground that as the prosecution was predicated upon legislative activities performed by him while a member of the Legislature, he was afforded constitutional immunity from trial in a court of law by reason of the Speech and Debate clauses contained in Article 10 of the Maryland Declaration of Rights and Section 18 of Article 3 of the Maryland Constitution, which, respectively, provided: (Article 10) “That freedom of speech and debate, or pro ¹⁶⁸ ceedings in the Legislature, ought not to be impeached in any Court of Judicature.” (Section 18) “No Senator or Delegate shall be liable in any civil action, or criminal prosecution, whatever, for words spoken in debate.” Blondes maintained in his motion to dismiss that the cited Maryland provisions were in pari materia with the Speech or Debate clause contained in Section 6 of Article 1 of the United States Constitution which provides that “for any Speech or Debate in either House, they [Senators and Representatives] shall not be questioned in any other Place.” Blondes claimed that the Supreme Court in United States v. Johnson, 383 U. S. 169 , had interpreted the federal constitution's Speech or Debate clause to prohibit prosecution of a Congressman in a court of judicature for allegedly demanding or receiving a bribe to influence his legislative functions. He further asserted that it was the clearly recognized purpose of the Speech or Debate clause in the United States Constitution “to assure absolutely the total independence of the legislator and to afford him complete protection from a hostile executive or judicial branch of the government, while he is in the exercise of legislative functions.” Blondes concluded in his motion to dismiss that since Maryland’s Speech and Debate clauses had the same scope and objective as the federal constitutional provision it followed “that Maryland State legislators are cloaked with the same immunity from suit or criminal prosecution for acts or words connected to the exercise of their legislative functions, as Federal legislators.” The court reserved its ruling on Blondes’s motion and the case thereafter proceeded to trial before the court sitting without a jury. The State adduced evidence showing that the General Assembly of Maryland enacted legislation in 1967, 1 one effect of which was to make it unlawful for proprietors ¹⁶⁹ of bowling alleys in Montgomery County to dispense alcoholic beverages or permit the consumption thereof on bowling alley premises.

C. Edward Goldberg, a bowling alley proprietor in Montgomery County, appeared at a meeting of the Montgomery County Delegation to the General Assembly on November 27, 1967, urging amendment of the 1967 legislation to permit bowling alleys to obtain beer licenses and to permit consumption of alcoholic beverages on bowling alley premises. Goldberg told the Delegation that he represented a majority of the bowling centers in Montgomery County. Blondes, who was Vice Chairman of the Delegation, was present at this meeting. Other evidence adduced by the State showed that sometime in the latter part of 1967 Leroy Rinaldi, a personal friend of Blondes and the proprietor of a Montgomery County bowling alley, told Blondes of his dissatisfaction with the 1967 legislation; he expressed the hope to Blondes that the law could be changed.

Blondes advised Rinaldi to discuss the matter with other bowling alley proprietors in Montgomery County and then come to see him. As a result, a number of bowling alley proprietors in Montgomery County met on December 10, 1967 and formed the Montgomery County Bowling Alley Proprietors’ Association to consider “problems or matters that would affect us jointly.” Blondes was not present at that meeting. It was nevertheless agreed at the meeting to employ Blondes to act as the Association’s legal representative for one year for a retainer fee of $5,000 (to be collected through assessments levied against the Association’s members). The only problem confronting the Association at that time concerned the 1967 legislation and the Association’s desire that it be changed.

Shortly after the Association’s organizational meeting, Goldberg, Rinaldi and Armiger, another bowling alley proprietor, went to Blondes’s office; they discussed the Association’s legislative problems with Blondes and he indicated that he could be of assistance. Blondes said that the 1967 legislation was not intended to affect bowling alleys as it did and that it was “his opinion that that ¹⁷⁰ legislation would be changed.” According to Armiger and Goldberg, Blondes told them at that time that he could not lobby for the Association. On January 4, 1968 Blondes received a check for $5,000 which, in his letter of acknowledgment, he stated covered “the agreed legal fee” to represent the Association for the year 1968 “involving problems and matters pertaining to the Association and members thereof.” The State adduced further evidence showing that at the 1968 session of the General Assembly, which began on January 17, 1968 and concluded on March 26, 1968, Blondes was the primary sponsor of a bill which, if enacted, would have permitted consumption of alcoholic beverages on the premises of bowling alleys in Montgomery County. Other evidence was put forth by the State to show that Blondes discussed his bill with other members of the Montgomery County Delegation and sought to enlist their support for his measure.

Amendments to Blondes’s bill were proposed by Delegate Mc-Inerney at a meeting of the Montgomery County Delegation, their effect being, if adopted, to leave bowling alleys in the same legislative posture as they were placed by the 1967 legislation. Blondes then moved to amend Mclnerney’s amendment “to read that they shall not apply to consumption of beer by patrons in bowling centers.” The State’s evidence showed that Mclnerney’s amendments carried, that Blondes’s amendment failed, and that ultimately, as enacted by the General Assembly, the bill continued the restraints placed upon bowling alleys substantially in accordance with the 1967 legislation. 2 On April 8, 1968 a meeting was held of the Association for the purpose of receiving “a progress report” from Blondes. At that time Blondes advised the Association that “beer was a dead issue and that the only way we could do it was that we would have to hire a public relations firm to educate the public on it.” The ¹⁷¹ Association terminated Blondes’s employment in October of 1968; it employed new counsel at that time to assist it with the same legislative problem that it failed to correct at the 1968 session of the Legislature. There was testimony at the trial from two Montgomery County Delegates (Gore and Cook) that each heard Blondes announce that he was acting as legal counsel to the' Association.

Another Delegate (Wiser) testified that Blondes made no such announcement. There was other evidence showing that on one occasion Blondes was asked by the Association to assist it in a matter involving bowling alley closing hours and that he contacted the County Attorney’s office on the Association’s behalf (but without apparent success). At the conclusion of the trial the court denied Blondes’s motion to dismiss the indictment on the asserted ground of legislative immunity from prosecution. The court indicated that the Supreme Court’s decision in United States v. Johnson, supra, involving the interpretation of the federal Speech or Debate clause, was not binding authority with respect to the Maryland Speech and Debate clauses, particularly since Section 50 of Article III of the Maryland Constitution imposed an express duty on the General Assembly, at its first session held after the adoption of the Constitution “to provide by Law for the punishment, by fine, or imprisonment in the Penitentiary, or both, in the discretion of the Court, of any * * * [member of the General Assembly] who shall demand, or receive any bribe, fee, reward, or testimonial, for the performance of his official duties, or for neglecting, or failing to perform the same.” The court stated that the statute under which Blondes was indicted, Article 27, Section 28, was enacted by the Legislature in obedience to the constitutional mandate of Section 50 of Article III; that Section 50 of Article III constituted a constitutional limitation on the Speech and Debate clause in Article 10 of the Maryland Declaration of Rights; and that this specific constitutional provision took precedence over the general provisions in Article 10, with the ¹⁷² result that the Speech and Debate clause appearing in that Article was not applicable in bribery prosecutions under Section 23 of Article 27.

In its role as trier of fact, the court summarized the evidence adduced at the trial and concluded that the inferences properly drawn therefrom indicated that Blondes received the $5,000 fee from the Association “in part, at least, for influencing him in the performance of his official duties and that it was demanded or requested for that purpose.” The court stated: “I do not find that the picture as painted by the State’s Attorney is as venal as he has contended. I don’t believe that this was a planned operation to get and receive a bribe as such. “But I do believe that the members of the Bowling Alley Association had only one major problem, and that was to get this legislation changed. “I think they told that to the Defendant, that seems to be documented, and that he, amongst his other duties of representation throughout the year, led them to believe that he would get this legislation through the General Assembly. I don’t find that there is anything that makes me question that as being one of the things in his mind. “The fact of his introduction of these amendments before the delegation to help the bowling alley people in their problem is certainly confirmatory of, at least, some substantial proof, to my mind, of the state of mind that this Defendant had at the time he asked for and did receive this money. “I don’t believe that this Defendant had any feeling of moral guilt in that connection. “I do think that he told people that he was representing them, and, I believe that he fully intended to represent them in other matters. But the fact remains that a part of the money ¹⁷³ was to get him to sponsor and put through, or, at least, support legislation that would be in favor of the Bowling Alley Association. * * * “I have recited the instance of the attempted specific amendment to aid the bowling alley people, but, the Defendant was not so naive as to believe that when the bowling alley people, with their one major problem, came to him with their problem and he said he would help them out with it for this five thousand dollars annual retainer, he was certainly not so naive as to believe he was not being retained for the principal purpose of influencing him in trying to persuade members of the delegation to take favorable action on this bill. “There again, I cannot know by divine insight what was in the Defendant’s mind, but a lawyer-member of the legislature who does the things that the Defendant did do under these circumstances can only find himself to blame if the logical and reasonable inference is made from those actions. “This case is not a blanket holding by any means, because it is not before me, of members of the legislature who might be on salaries or on established retainers.

I don’t pass on that one way or the other, it isn’t before me. “But under the circumstances of this particular case I do find that the inference beyond a doubt is that this money was received, at least in part, to influence the delegate in the performance of his duties, and this is sufficient to make a finding of guilty under the statutes, regardless of whether he intended to perform other duties or not.” Upon its guilty verdict, the court imposed a fine of $2,500 and, by operation of the provisions of Article 27, Section ¹⁷⁴ 23, Blondes was “forever disfranchised and disqualified from holding any office of trust or profit in this State.” With primary reliance upon United States v. Johnson, supra, Blondes contends on appeal, as he did below, that the Speech and Debate clauses in the Maryland Declaration of Rights and Maryland Constitution absolutely proscribe prosecution of a State legislator where such prosecution involves a judicial inquiry into his motives for things said or done during the legislative session involving the performance of the legislative functions of his office. He maintains that the prosecution against him “was incontrovertibly aimed at his motives for offering legislation, introducing legislation, and voting on amendments to legislation while in the Maryland House of Delegates during the 1967 and 1968 sessions,” and that a prosecution so grounded directly contravenes the Maryland Speech and Debate clauses forbidding impeachment in a court of judicature of proceedings in the Legislature. To permit such a prosecution against a member of the General Assembly, he urges, “is to open a Pandora’s Box of Grand Jury investigations, criminal prosecutions and civil suits all directed at an inquiry into legislators’ motives and activities in the Legislature and would inevitably result in crippling the independence and security of the members of the House and Senate.” Blondes maintains that nothing in Section 50 of Article III of the Maryland Constitution, which requires the Legislature to provide by law for the “punishment” of bribery by public officials, compels the conclusion that that constitutional provision was intended to wholly preempt application of the Speech and Debate clauses in the Maryland Declaration of Rights and Constitution. I The immunity of legislators from prosecution by the executive and judicial branches of government for the performance of legislative acts evolved from the long struggle in England for parliamentary supremacy and first found written form in the English Bill of Rights ¹⁷⁵ of 1689: “That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament.” 1 W. & M., Sess. 2, c. 2.

As adopted in Section 6 of Article I of the Constitution of the United States, and the Constitutions of the various states, including Maryland, the legislative privilege afforded by speech and debate clauses has served both to protect the integrity of the legislative process by insuring the independence of individual legislators and to reinforce the separation of powers embodied in our tripartite form of government. United States v. Johnson, supra. Based on the history of the Speech or Debate clause, the Court in Johnson said that the legislative privilege was born to prevent intimidation by the executive and accountability before a possibly hostile judiciary; that “the instigation of criminal charges against critical or disfavored legislators by the executive in a judicial forum was the chief fear prompting the long struggle for parliamentary privilege in England and, in the context of the American system of separation of powers, is the predominate thrust of the Speech or Debate Clause.” 383 U. S. at 182 . Because of the semantic similarity, the Speech and Debate provision in Article 10 of the Maryland Declaration of Rights has been equated with the federal constitution’s Speech or Debate clause.

See Niles, Maryland Constitutional Law (1915), 13, 22. And in a thorough review of state constitutional provisions deemed analagous to the federal Speech or Debate clause, the Supreme Court, in Tenney v. Brandhove, 341 U. S. 367, 375, n. 5 , made reference both to Article 10 and Section 18 of Article III of the Maryland Constitution. In view of their common derivation and purpose, we hold that the legislative privilege afforded under the dual provisions in the organic law of the State should be construed in pari materia with Article I, Section 6 of the federal Constitution, subject to any limitation imposed by other provisions of the Maryland Constitution. Compare Freedman v. State, 233 Md. 498 , reversed on other grounds 380 U. S. 51 ; Brown v. ¹⁷⁶ State, 233 Md. 288 ; Bass v. State, 182 Md. 496 ; Blum v. State, 94 Md. 375 ; Lightman v. State, 15 Md. App. 713 , all involving Maryland constitutional provisions held to stand in pari materia with similar federal constitutional provisions.

Although the legislative privilege contained in the Maryland Declaration of Rights and Constitution has never been construed by the courts of this State, the Supreme Court has interpreted the federal Constitution’s Speech or Debate clause on a number of occasions, most recently in United States v. Brewster, 408 U. S. 501 , 33 L.Ed.2d 507 . In that case, a United States Senator had been indicted for violating a federal bribery statute proscribing the demand or acceptance by a public official and member of Congress of anything of value in return for “being influenced in the performance of an official act,” viz., as charged in the indictment, being influenced with respect to his vote on legislation pending in the Congress. A motion to dismiss the indictment on the ground of legislative immunity under the Speech or Debate clause of the federal Constitution was granted by the lower court on the premise that the holding in United States v. Johnson, supra, constitutionally shielded the Senator from any prosecution for alleged bribery to perform a legislative act. The Supreme Court concluded that Johnson was not authority for that holding; that what Johnson held was that the Speech or Debate clause in Article I, Section 6 of the federal Constitution protected members of Congress from inquiry into legislative acts or the motivation for actual performance of legislative acts; that how a legislator acted, voted, or decided was inadmissible evidence in a federal bribery prosecution; that a member of Congress could nevertheless be prosecuted under a criminal statute provided the Government’s case did not rely on legislative acts or the motivation for legislative acts, i.e., acts generally done in Congress in relation to the business before it; that the Speech or Debate clause reaches and prohibits inquiry only into those things said or