260 Kan. 930
(926 P2d 1325)
No. 74,412
STATE OF KANSAS, Appellant, v. MELVIN NEUFELD, Appellee.
SYLLABUS BY THE COURT
1. The privilege created by the Speech or Debate Clause of the Kansas Constitution prohibits the admission at trial of evidence which is protected by the clause. A legislator can be prosecuted for a crime occurring anywhere, but acts protected by the Speech or Debate Clause cannot be introduced as evidence against the legislator.
2. The purpose of the Speech or Debate Clause is to insure that legislators may perform legislative functions independently, free from outside interference or fear of such interference. To preserve legislative independence, legislators should be protected not only from the consequences of litigation's results but also from the burden of defending themselves.
3. The Speech or Debate Clause provides protection against civil as well as criminal actions, and against actions brought by private individuals as well as those initiated by the Executive Branch. Legislative immunity was not written into the Kansas Constitution for the purpose of protecting the private or personal benefits of legislators. Rather, immunity was provided to protect the integrity of the legislative process by insuring the independence of individual legislators. Further, legislative immunity was developed to reinforce the carefully established separation of powers doctrine. The Speech or Debate Clause is to be read broadly to carry out these purposes.
4. Legislators are absolutely protected from the burden of defending lawsuits if the conduct which the suit is based upon falls within the sphere of legitimate legislative activity. In deciding whether particular activities other than literal speech or debate fall within the legitimate legislative sphere, we must determine whether the activities took place in a session of the legislature by one of its members in relation to the business before it.
5. The Speech or Debate Clause does not apply to criminal prosecutions of legislators if the prosecution does not draw in question the legislative acts of the defendant member of the legislature or his or her motives for performing them. The Speech or Debate Clause does not prohibit inquiry into activities that are casually or incidentally related to legislative affairs but not a part of the legislative process itself.
6. When considering the immunity provided by the Speech or Debate Clause, it is not the alleged criminal act that is examined to determine whether it falls within the sphere of legislative action and whether a legislator's conduct qualifies as a legislative act. If this court looked only at the specific act in question and determined that the act constituted a crime and was not entitled to protection as a legitimate legislative act, then the constitutional protection afforded by the Speech or Debate Clause would not serve its intended purpose. Rather, this court should look at the context in which the conduct occurred to determine whether it falls within a legitimate legislative sphere.
7. The passing of acts and resolutions is the very essence of the legislative process. Trying to persuade a legislator to change his or her vote is an integral part of the communicative processes by which members participate in legislative proceedings with respect to the passage or rejection of proposed legislation.
8. The Speech or Debate Clause protects legislators from liability for their actions within the legislative sphere, even though their conduct, if performed in other than legislative contexts, would be unconstitutional or otherwise contrary to criminal or civil statutes.
Appeal from Shawnee district court; JAMES P. BUCHELE, judge. Opinion filed November 8, 1996. Affirmed.
Melanie S. Pfeifer, assistant attorney general, argued the cause, and Carla J. Stovall, attorney general, was with her on the briefs for appellant.
Mark L. Bennett, Jr., of Bennett & Dillon, L.L.P., of Topeka, argued the cause, and was on the brief for appellee.
Robert Drean, legal intern, and Michael Kaye, supervising attorney, of Washburn Law Clinic, of Topeka, were on the brief for amicus curiae Washburn Law Clinic.
The opinion of the court was delivered by
ABBOTT, J.: The State of Kansas appeals from the trial court's dismissal of blackmail charges against State Representative Melvin Neufeld. Neufeld cross-appeals. The case was dismissed by the trial court after both parties presented evidence at the preliminary hearing.
On the last night of the veto session of the 1994 legislative session, the bell which officially calls the Kansas House of Representatives to order for a vote was ringing. At that time, in the lobby of the House chamber, Representative Neufeld engaged Representative Richard Alldritt in a conversation.
The conversation took place in the lobby within 10 feet of the door to the House chambers. The lobby area of the House is sometimes used by legislators for the purpose of discussing and conducting "legislative business." The only business before the House was the omnibus appropriations bill that had to be passed before the legislature could adjourn. The defendant, Neufeld, is a Republican. Alldritt is a Democrat. Neufeld had been voting "Yes" on the omnibus bill and Alldritt had been voting "No" on the bill. According to Alldritt, Neufeld told him, "You're voting with us this time." Alldritt replied, "Excuse me?" Neufeld again stated, "You're voting with us this time. We know you were caught up in the [fifth floor] lounge in a compromising position with two [female] lobbyists earlier this evening. You're voting green or we'll call your wife." A green vote indicates a legislator is voting "Yes" on a bill. Alldritt testified that he considered Neufeld's statements a threat.
Alldritt testified that he did not respond to the defendant's threat. Instead, Alldritt walked into the House chamber and called his wife to advise her of the threat. A short time later, a vote was taken on the appropriations bill and Alldritt voted "No." Alldritt testified he had no intention of changing his vote as a result of Neufeld's statement and he did not do so at any time. His intention at all times was to vote "No."
After Alldritt voted "No" on the omnibus appropriations bill, a call of the House was taken. The bill had not passed and efforts were being made to salvage it. A call of the House means that no member can come into the chamber or leave the chamber unless he or she has permission of the Speaker or whoever is in the Speaker's chair. At this time, Alldritt was seated at his desk on the House floor, and he received a phone call from Neufeld, who was seated at his desk on the House floor. According to Alldritt, the defendant stated, "This is Melvin. What's going on? Don't you--you're not voting right?" Alldritt replied that he was voting red and that he was not going to change his vote. Neufeld then stated, "Well, you know what this means." Alldritt replied, "Yeah, I know what this means," and hung up.
During the call of the House, Representative Ed McKechnie also received a telephone call from Neufeld. Neufeld told McKechnie that Alldritt had been caught in the fifth floor lounge in a very compromising situation. Neufeld advised McKechnie that they were going to pass the appropriations bill that night and that Alldritt needed to change his vote to green or "[w]e are going to call his wife and let her know he'd been caught in this compromising situation." Neufeld told McKechnie, "You need to make sure that Alldritt knows we're serious." McKechnie testified that it was his belief the purpose of the call was to have McKechnie communicate to Alldritt that if he did not change his vote from "No" to "Yes," a phone call would be made to Alldritt's wife telling her that Alldritt had been caught in a compromising position.
A short time later, McKechnie received another telephone call from Neufeld, asking him if he had delivered the message to Alldritt. When McKechnie told him he had not, Neufeld replied, "Well, he needs to know that we're serious. He needs to know we're serious." After talking to Neufeld, McKechnie called Alldritt and asked him how he was doing. McKechnie told Alldritt that he understood what was going on and that Alldritt had to do what he had to do. McKechnie made no effort to change Alldritt's vote.
Alldritt's wife, Carmen Alldritt, testified that she received a call from Neufeld shortly before midnight near the end of the legislative session. Neufeld told her that he was sorry to have to call and tell her that her husband's conduct was unbecoming of a member of the House of Representatives. He advised her that he was concerned about her marriage and her husband's conduct. Neufeld advised her that her husband had been seen in a lounge with two women employees who stood to benefit from the passage of the bill on which they were voting. Mrs. Alldritt responded, "What do you want me to do now, call my husband up to get him to change his vote?" Neufeld replied, "Well, yes." Alldritt then received a phone call at his desk on the House floor from his wife, who was very upset. She advised Alldritt that Neufeld had called and told her that there were problems in her marriage and that her husband was behaving in a way unfit for a legislator.
Alldritt testified that during the time of all these phone calls, the call of the House was still on, which would have allowed him to change his vote at any time until the final tally was taken. However, Alldritt did not change his "No" vote on the bill, and he had no intention of doing so. Ultimately, the bill failed to pass that evening. The bill passed the next day. Soon thereafter, Alldritt contacted the Speaker of the House, the House Majority Leader, and the Attorney General's office to report the defendant's conduct.
Alldritt did not speak with Neufeld again until after the legislative session had adjourned. At his home in Harper, Alldritt received a telephone call from Neufeld, who stated, "I'm calling to apologize. I did a really stupid thing. I'm a jerk and I hope you can forgive me."
Alldritt's wife also received a telephone call from Neufeld at her office in Anthony. Neufeld stated, "I'm calling to apologize for my actions the other evening. I was a jerk. I was out of line. My friends know I can be kind of off-the-wall at times." Mrs. Alldritt advised him that it was not the time or the place for the conversation, and if Neufeld wanted to talk with her any further, he could call her at home and she would tape-record the conversation. Neufeld did not make a follow-up call.
Alldritt testified that he felt the allegations made against him by the defendant caused him to be exposed to public ridicule, contempt, and degradation. Alldritt described meetings he had in his district in which constituents would avoid him or leave the room. He testified that his reputation was affected, and he believed the people in his district were also affected by the allegations. He and Neufeld were both subsequently reelected.
The language of the blackmail charge filed against Neufeld is important as it is involved in some of the issues raised on appeal, including an attempt to amend the complaint. The complaint alleged that Representative Neufeld blackmailed Representative Alldritt by "attempting to compel Richard Alldritt to act against his will, to-wit: to vote 'Yes' on an appropriations bill by threatening to communicate accusations or statements, . . . that Richard Alldritt was in a 'compromising position' with two women, that would subject Richard Alldritt to public ridicule, contempt or degradation . . . ."
Neufeld filed a motion to dismiss. He alleged that his actions were privileged under Article 2, § 22 of the Kansas Constitution (Speech or Debate Clause) and under the common-law doctrine of legislative immunity. Further, Neufeld alleged that the blackmail statute (K.S.A. 21-3428) was unconstitutionally vague and overbroad and violated the First Amendment to the United States Constitution and § 11 of the Kansas Constitution Bill of Rights. On a pretrial ruling, the trial court ruled that Neufeld would not be allowed to present evidence of truth as a defense at the preliminary hearing in regards to the information which Neufeld used to allegedly blackmail Alldritt. The trial court also held that a legislator who makes a felonious threat for the purpose of influencing the official conduct of another legislator is not acting within a legitimate legislative sphere and that the Speech or Debate Clause of the Kansas Constitution does not immunize the legislator from criminal prosecution. Finally, the trial court ruled that the blackmail statute, K.S.A. 21-3428, is not unconstitutionally vague.
Next, the trial court held a preliminary hearing. Prior to the presentation of evidence, the defendant orally moved for a motion in limine prohibiting introduction of evidence which referred to comments made on the House floor regarding a bill being considered and voted on. The trial court denied the motion, stating that speech which amounts to a felonious act is outside the legitimate legislative function and not entitled to immunity. According to the trial court, the case which the defendant relied on in his immunity motion, United States v. Johnson, 383 U.S. 169, 15 L. Ed. 2d 618, 86 S. Ct. 749 (1966), has been criticized and modified in Gravel v. United States, 408 U.S. 606, 33 L. Ed. 2d 583, 92 S. Ct. 2614 (1972). In interpreting Gravel, the trial court found that there are some parameters beyond which a legislator cannot go and still be protected by immunity. As an example, the trial court reasoned that if a legislator stated with the proper intent, "If you vote for [this bill], I am going to kill you," then the legislator's actions would go beyond those legislative acts protected by immunity. The trial court then found that it would be too difficult to draw a line between his hypothetical felony which would not be protected by immunity and other crimes which would be protected. Thus, the trial judge decided to draw the line between felony and misdemeanors. According to the trial court, if a legislator engages in speech which amounts to a misdemeanor, it may be protected by immunity, but if the speech amounts to a felonious act, then it is outside the legislative sphere and is not protected. Thus, the trial court found that the defendant's speech might amount to a felonious action and denied the defendant's motion in limine to exclude comments made on the House floor and in the House lobby.
At the preliminary hearing, the court allowed Neufeld's counsel to cross-examine Alldritt regarding what had transpired in the lounge on the evening in question. According to the court, this examination was only allowed to probe the credibility of the threat, not the truth of the allegations. On cross-examination, Alldritt testified that he had gone to the fifth floor lounge to rest around 7 or 8 p.m. Two female secretaries, who may have been associated with a lobbyist organization that had an interest in the appropriations bill, were also present in the lounge. The secretaries had brought hamburgers to the lounge for dinner. Alldritt testified that during the time he was in the lounge the doors were not locked and the lights were occasionally turned off because his eyes hurt. Alldritt testified that while the lights were off, the two secretaries were eating or talking on the phone.
Following presentation of the evidence at the preliminary hearing, Neufeld orally moved the court to dismiss the charge because the State had failed to present evidence to support all of the essential elements of the crime of blackmail. The blackmail statute at issue (K.S.A. 21-3428), a severity level 7 nonperson felony, states:
"Blackmail is gaining or attempting to gain anything of value or compelling another to act against such person's will, by threatening to communicate accusations or statements about any person that would subject such person or any other person to public ridicule, contempt or degradation."
In requesting dismissal of the charge, Neufeld alleged that the blackmail statute allows for two different strands of blackmail. The first strand requires the defendant to gain or attempt to gain anything of value by threatening another. The second strand requires the defendant to actually compel another to act against his or her will. According to Neufeld, the "attempting" language only applies to the "gain value" strand and does not apply to the "compel" strand. Thus, Neufeld argued that the blackmail statute only punishes those who actually compel another to act against his or her will, not just attempt to compel one to act against his or her will. Neufeld then pointed out that the complaint only charged him with attempting to compel Alldritt to act against his will. Neufeld contended that the State presented no evidence that Alldritt had actually been compelled to do anything against his will. According to the evidence presented, Alldritt intended to vote "No" on the bill at all times and in fact voted "No" even after Neufeld allegedly threatened him.
On the other hand, the State argued that the blackmail statute prohibits one from compelling or attempting to compel another to act against his or her will. According to the State, blackmail occurs even if the result of the compulsion is not actually accomplished. Further, the State argued that if the blackmail statute required actual compulsion, then the court could and should bind the defendant over on the lesser offense of attempted blackmail. Finally, the State moved to amend the complaint so it could charge the defendant under the first strand of the blackmail statute which punishes a person for "gaining or attempting to gain anything of value" by a threat. The State argued that Neufeld threatened Alldritt in an attempt to gain a legislative vote, which is a thing of value.
Following these arguments, the trial court granted the defendant's motion to dismiss. The court found that an essential element of blackmail under the second strand is that the victim must have been actually compelled to act against his or her will. According to the trial court, if the threat was not successful in compelling the other person to act against his or her will, then the crime of blackmail has not been committed. The trial court ruled that the State had not presented any evidence to establish that Alldritt had actually been compelled to act against his will. The trial court also ruled that the general attempt statute is not applicable to the blackmail statute. Finally, the trial court ruled that it would not allow the State to amend its complaint and allege the first strand of blackmail. In denying the motion to amend, the trial court found that a legislative vote is not a thing of value as contemplated by the legislature. In essence, the trial court held the legislature intended that a "thing of value" be tangible property, not intangible property. Thus, the trial court held that even if it allowed the State to amend its complaint and allege the alternative "value" strand, the evidence would still be insufficient to meet the State's burden and prove all of the essential elements of the crime.
The State then appealed, raising four issues. The State contends the trial court erred (1) in holding the alleged victim must be compelled to commit an act against his or her will in order to sustain the crime of blackmail; (2) in holding "attempted" blackmail is not a proper charge when the State alleges that the defendant attempted to compel the alleged victim to act against his or her will; (3) in holding a legislative vote is not a thing of value as contemplated in the blackmail statute; and (4) in not allowing the State to amend its complaint.
The defendant filed a cross-appeal, alleging his actions were privileged under Article 2, § 22, of the Kansas Constitution (Speech or Debate Clause) and the common-law doctrine of legislative immunity. The defendant also contends K.S.A. 21-3428 is unconstitutionally vague, ambiguous, and overbroad and/or is violative of the First Amendment to the United States Constitution and § 11 of the Kansas Constitution Bill of Rights.
I. PRIVILEGE
Article 2, § 22 of the Kansas Constitution provides:
"Legislative immunity. For any speech, written document or debate in either house, the members shall not be questioned elsewhere. [Speech or Debate Clause] No member of the legislature shall be subject to arrest--except for treason, felony or breach of peace -- in going to, or returning from, the place of meeting, or during the continuance of the session; neither shall he be subject to the service of any civil process during the session, nor for fifteen days previous to its commencement. [Arrest Clause]"
Similarly, Article I, § 6, of the United States Constitution provides in pertinent part:
"The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony, and Breach of Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same [Arrest Clause]; and for any Speech or Debate in either House, they shall not be questioned in any other Place [Speech or Debate Clause]."
There are two different protections provided by these Constitutional provisions. The Arrest Clause provides temporary protection from arrest for civil proceedings which may prohibit a legislator from attending a legislative session. Such protection does not apply to arrest for any criminal proceedings or to subpoenas for civil proceedings. See Williamson v. United States, 207 U.S. 425, 52 L. Ed. 278, 28 S. Ct. 163 (1908); Gravel, 408 U.S. 606. The privilege created by the Speech or Debate Clause prohibits the admission into trial of evidence which is protected by the clause. A legislator can be prosecuted for a crime occurring anywhere, but acts protected by the Speech or Debate Clause cannot be introduced as evidence against the legislator. The privilege at issue here is that provided by the Speech or Debate Clause.
The state common-law doctrine of legislative immunity and Article 2, § 22 of the Kansas Constitution provide protection to Kansas legislators equivalent to the protection provided to federal legislators under Article I, § 6 of the United States Constitution because they are based on the same origin and rationale. State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 54, 687 P.2d 622 (1984). The cases analyzing the federal constitution are not binding on questions of state constitutional law, but they do provide guidance.
Two issues are immediately before us on the Speech or Debate Clause issue. They are whether words spoken immediately outside the chamber doors under the circumstances of this case are protected by the Speech or Debate Clause and whether the words spoken from within the chambers but over the telephone to a third person who is neither a legislator nor a staff member of the legislature are protected by the Speech or Debate Clause.
All of the cases we have found hold that the Speech or Debate Clause applies to words spoken within chambers and also to committee reports, resolutions, voting, and all things generally done in a legislative session in relation to the business at hand. Hutchinson v. Proxmire, 443 U.S. 111, 61 L. Ed. 2d 411, 99 S. Ct. 2675 (1979); United States v. Helstoski, 442 U.S. 477, 61 L. Ed. 2d 12, 99 S. Ct. 2432 (1979); Davis v. Passman, 442 U.S. 228, 60 L. Ed. 2d 846, 99 S. Ct. 2264 (1979); Eastland v. United States Servicemen's Fund, 421 U.S. 491, 44 L. Ed. 2d 324, 95 S. Ct. 1813 (1975); Scheuer v. Rhodes, 416 U.S. 232, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Doe v. McMillan, 412 U.S. 306, 36 L. Ed. 2d 912, 93 S. Ct. 2018, motion for clarification denied 419 U.S. 1043 (1973); Gravel, 408 U.S. 606; United States v. Brewster, 408 U.S. 501, 33 L. Ed. 2d 507, 92 S. Ct. 2531 (1972); Powell v. McCormack, 395 U.S. 486, 23 L. Ed. 2d 491, 89 S. Ct. 1944 (1969); Dombrowski v. Eastland, 387 U.S. 82, 18 L. Ed. 2d 577, 87 S. Ct. 1425 (1967); Johnson, 383 U.S. 169; Kilbourn v. Thompson, 103 U.S. 168, 26 L. Ed. 377 (1880).
Here, the first exchange between Neufeld and Alldritt occurred within 10 feet of the door to the House chambers. The two were entering the House chambers in response to a bell calling the House to order for a vote on the only pending legislation remaining before the House. The second exchange between Neufeld and Alldritt occurred on the House floor between two legislators over their desk phones, again regarding the only pending legislation before the House. Under the facts, we are satisfied the exchanges between Neufeld and Alldritt are subject to the Speech or Debate Clause. Based on this same rationale, the Speech or Debate Clause also applies to the exchange between Neufeld and Representative McKechnie which occurred on the House floor.
The exchange between Neufeld and Mrs. Alldritt is a different matter. Mrs. Alldritt is not a representative or legislative staff member. She was not appearing before the legislature or a legislative body. She had no stake in the outcome of the vote different than other citizens of this state. We are unable to say that Neufeld's phone call to Mrs. Alldritt, who is not a legislator or a member of the legislator's staff, constitutes a legislative act so as to be protected by the Speech or Debate Clause. As such, the exchange between Neufeld and Mrs. Alldritt would be admissible evidence in a blackmail prosecution against Neufeld. The apology phone calls made to the Alldritts after the legislative session had adjourned would also be admissible evidence in a blackmail prosecution against Neufeld.
However, as we view the testimony regarding the threatening phone call to Mrs. Alldritt and the apology phone calls, this testimony is insufficient to provide probable cause to believe Neufeld committed the crime charged. Since the exchanges between Neufeld, Alldritt, and McKechnie are inadmissible evidence, there is no evidence to bind Neufeld over for trial, and the trial court did not err in dismissing the case, even though we might not agree with the trial judge's reasons for doing so.
An expanded rationale, discussing why the conversations between Neufeld, Alldritt, and McKechnie are covered by the Speech or Debate Clause of the Kansas Constitution so as to exclude those communications from being introduced into evidence against Neufeld, is discussed below. A review of applicable cases is helpful in deciding this issue.
State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. at 54, is the only case decided by this court dealing with the Kansas Constitution's Speech or Debate Clause. Stephan was an action in quo warranto and mandamus brought by the State against the Kansas House of Representatives, the Kansas Senate, and the Kansas governor, seeking a determination of the constitutionality of K.S.A. 1983 Supp. 77-426(c) and (d). This statute provided that the legislature may adopt, modify, or revoke administrative rules and regulations by concurrent resolutions passed by the legislature without presentment to the governor. The legislature filed a motion to dismiss the action, alleging that all state legislators are protected from liability based on the performance of legitimate legislative functions under the common-law doctrine of legislative immunity which is embodied in the Speech or Debate Clause of the Kansas Constitution. Since Kansas had never interpreted the Speech or Debate Clause before, this court relied on several United States Supreme Court cases which have addressed the issue.
This court found that the purpose of the Speech or Debate Clause is to insure that legislators may perform legislative functions independently, free from outside interference or fear of such interference. To preserve legislative independence, legislators "'should be protected not only from the consequences of litigation's results but also from the burden of defending themselves.'" 236 Kan. at 55 (quoting Supreme Court of Va. v. Consumers Union, 446 U.S. 719, 731-32, 64 L. Ed. 2d 641, 100 S. Ct. 1967 [1980]). "'[T]he "central role" of the Clause is to "prevent intimidation of legislators by the Executive and accountability before a possible hostile judiciary." [As such,] the Clause provides protection against civil as well as criminal actions, and against actions brought by private individuals as well as those initiated by the Executive Branch.'" 236 Kan. at 56 (citing Eastland, 421 U.S. at 502-03). Legislative immunity was not written into the Kansas Constitution for the purpose of protecting the private or personal benefits of legislators. Rather, immunity was provided to "'"protect the integrity of the legislative process by insuring the independence of individual legislators."'" 236 Kan. at 55 (quoting Eastland, 421 U.S. at 502-03, quoting Brewster, 408 U.S. at 507). Further, legislative immunity was developed to reinforce the carefully established separation of powers doctrine. The Speech or Debate Clause is to be read broadly to carry out these purposes. 236 Kan. at 56 (citing Eastland, 421 U.S. at 501, and Johnson, 383 U.S. at 180).
The first case in which the United States Supreme Court addressed the Speech or Debate Clause was in Kilbourn v. Thompson, 103 U.S. 168. In Kilbourn, the plaintiff sued, among others, some members of the United States House of Representatives for false imprisonment. The suit was based on the passage of a resolution which allowed the plaintiff to be taken into custody for being in contempt of the House. The representatives being sued, who voted to pass the resolution, claimed that they were immune from the suit because it was based on conduct which occurred while they were acting in their legislative capacity. The Court found that if the representatives had committed these actions under ordinary circumstances, then they would be liable for false imprisonment. However, the Court pointed out that a representative who carries out his or her duties in the House of Representatives is not acting under ordinary circumstances. Thus, the Court held the representatives were protected from liability by the Speech or Debate Clause. Notwithstanding this holding, the Court cautioned that conduct by Representatives would not always be protected. The Court stated:
"It is not necessary to decid