[Deschler's Precedents]
[From the U.S. Government Printing Office via GPO Access]
[DOCID:52093c09_txt-31]
[Page 1050-1051]
CHAPTER 9
Election Contests
H. TAKING OF TESTIMONY; DEPOSITIONS
Sec. 30. Subpenas
The attendance of witnesses may be compelled by subpena in the
manner provided by the Federal Contested Elections Act.(12)
Subpenas for compelling attendance at a deposition must be issued by a
judge or clerk of a federal district court or court of record of the
state or county where the place of examination is
located.(13)
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12. 2 USC Sec. 386(e).
13. 2 USC Sec. 388(a).
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The time, method, and proof of service is prescribed under the act,
as is the form of the subpena.(14)
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14. 2 USC Sec. 388 (b), (d).
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A witness may be required to attend an examination only in certain
counties or within 40 miles of the place of service.(15)
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15. 2 USC Sec. 388(c). -------------------
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Clerk's Refusal to Respond to Subpena
Sec. 30.1 The settled rule that the Clerk will not give up House
documents without authorization from the House has been followed by
the Clerk in refusing to respond to a subpena served by contestant
in an election contest for purposes of obtaining documents filed by
contestee in a contested election case.
In the 1934 Illinois election case of Weber v Simpson (Sec. 47.16,
infra), the contestant's notary public served a subpena duces tecum
upon the Clerk requesting
[[Page 1051]]
production of documents filed by the contestee in compliance with the
Corrupt Practices Act. The Clerk transmitted the subpena, along with
his reply refusing to comply with it, to the Speaker, who referred it
to the Committee on the Judiciary. The 73d Congress did not authorize
the Clerk to respond to the subpena.(16)
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16. See 3 Hinds' Precedents Sec. 2663.
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Noncompliance With Subpena
Sec. 30.2 Although the election contest statute authorized the use of
subpenas, there were instances of refusals to testify as well as
ignoring of subpenas by witnesses; for this reason, a House
elections committee recommended that the laws be amended and some
practical procedure be adopted by which witnesses could be required
to obey process and give testimony.
See Lanzetta v Marcantonio (Sec. 48.1, infra), a 1936 New York
contest, wherein various witnesses refused to testify or could not be
found or failed to obey the subpena or refused to sign testimony which
might have been incriminating; it also appeared that contestee's law
partner, the campaign fund treasurer, refused to testify. The law now
provides for fine or imprisonment for noncompliance.(17)
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17. Under the present statute, 2 USC Sec. 390, noncompliance is a
misdemeanor punishable by a fine of not more than $1,000 nor
less than $100, or imprisonment for not less than one month nor
more than 12 months.
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