ever, the constitutional violation is the use of legislative acts against a legislator. Unlike a violation of the Fourth Amendment, which the Calandra Court held to be a past abuse and thus the lawful basis for subsequent grand jury questioning, it is the very act of questioning that triggers the protections of the Speech or Debate Clause. In United States v. Helstoski, supra, we refused to issue a writ of mandamus to order a district court to dismiss an indictment said to be the product of Speech or Debate Clause violations. In Helstoski, however, we deferred consideration of the question whether such a dismissal is required until an appeal from a conviction. 576 F. 2d at 519. Thus Helstoski is not authority for the proposition that materials falling within the protections of the Speech or Debate Clause may, over the timely objection of an affected legislator, be submitted to a grand jury. Gravel v. United States, supra, involved just such an objection, and its authority in this respect is in no way impaired by United States v. Calandra, supra, or United States v. Helstoski, supra. (Slip Opinion at 15)

On December 4, 1978, Representative Eilberg filed a petition for rehearing en banc.

The Government filed a petition for rehearing en banc on December 13, 1978.

The Court of Appeals denied former Congressman Eilberg's petition on January 9, 1979.

On February 15, 1979, Mr. Eilberg moved for a continued stay of mandate to and including March 9, 1979.

The motion was granted on February 26, 1979.

On March 12, 1979, a certified judgment in lieu of a formal mandate was issued.

Status.-The case has been closed.

The opinion of the Court of Appeals regarding the Motion of Philadelphia Newspapers, Inc. and James Smith to intervene and for access to court records is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, March 31, 1979.

The opinion of the Court of Appeals regarding Congressman Eilberg's appeal is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, March 31, 1979.

McSurely v. McAdams (formerly McClellan)

C.A. No. 516-69 (D.D.C.)

On August 11, 1967, pursuant to warrants issued under a State sedition statute, Kentucky officials arrested Alan and Margaret McSurely and seized books and papers from their home. The McSurelys filed a complaint in the District Court for the Eastern District of Kentucky, challenging the constitutionality of the State

statute.

On September 11, 1967, the three-judge court which heard the case issued an order directing that:

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(1) the material seized in the raid on the McSurely home be left in the custody of the Kentucky Commonwealth Attorney, Thomas B. Ratliff;

(2) the material be made available to the U.S. Marshal for the Eastern District of Kentucky;

(3) Ratliff and the U.S. Marshal make an inventory of the seized material and file it with the record of the case; and

(4) Ratliff return to the McSurelys such materials as he determined were not relevant to the investigation and prosecution of the McSurelys.

That same day the McSurelys were indicted by a Kentucky grand jury.

On September 14, 1967, the three-judge Federal District Court rendered its decision holding the Kentucky statute unconstitutional and enjoining prosecution of the McSurelys. The court directed that Ratliff retain the seized materials "in safekeeping until final disposition of this case by appeal or otherwise.

On September 25, 1967, Lavern Duffy, Assistant Counsel on the staff of the Permanent Investigations Subcommittee of the Senate Government Operations Committee, called Ratliff by phone to ask about the seized documents. Subsequently, on October 8, 1967, Committee Investigator John Brick went to Kentucky, talked with Ratliff and confirmed that the seized material in Ratliff's possession contained information relating to the activities of a number of organizations in which the subcommittee was interested.

Ratliff has claimed that at some point before Brick was first given access to the seized material, he tried unsuccessfully to contact all of the members of the three-judge court to obtain their concurrence in his decision to allow Brick to inspect the documents. While he was unsuccessful in reaching two of the judges, he has stated that he did talk to the third (Judge Moynahan). Ratliff's testimony at trial on his discussion with the judge implied (according to the opinion of the minority of the en banc Court of Appeals) that Judge Moynahan agreed to Brick's examining and copying the material. [McSurely v. McClellan, 553 F.2d 1277, 1307-1308 (D.C. Cir. 1976).]

On October 12, 1967, Brick examined the material for about 4 hours. He took notes, made copies of 234 of the documents, and then returned to Washington.

On October 16th, 4 days later, Senator McClellan directed Brick to prepare subpoenas duces tecum for the seized material in Ratliff's custody, which the Senator had determined was relevant to the subcommittee's investigations of an April 1967 riot in Nashville, Tennessee. The next day, Brick, who had returned to Kentucky, notified Judge Moynahan of the issuance of the Congressional subpoenas before serving Ratliff, the U.S. Marshal (cocustodian with Ratliff of the seized materials), and the McSurelys. The next day the McSurelys filed motions with the three-judge court seeking orders blocking Ratliff from releasing the seized material to the subcommittee and directing him to return the materials to them (the McSurelys).

On October 30, 1967, the three-judge court issued an order in response to the McSurelys' motions. The court overruled motions

that

that the materials in Ratliff's custody be returned to the McSurelys and that a restraining order be issued enjoining release of the materials requested "by a Committee of the United States Senate.' Officers of the court and the parties to the action were directed "to cooperate with the Senate committee in making available such of the materials, or copies thereof, as the committee considers pertinent to its inquiry ** *." [553 F.2d at 1308.]

On November 1, 1967, a motion for reconsideration and rehearing of the October 30th order was denied. The court granted a 24hour stay to allow the McSurelys to apply to the Supreme Court for review, and directed that pending such review the material not be removed from Ratliff's custody and that "copies thereof shall not be made on or before 2:00 p.m., Eastern Standard Time, November 2, 1967." [553 F.2d at 1308.]

On November 10, 1967, Mr. Justice Stewart, for the Supreme Court, ordered that the documents remain in their then custody until the three-judge court could hear and rule on the McSurelys' objections to the Congressional subpoenas.

In an order issued on December 5, 1967, the three-judge court overruled the McSurelys' objections to the subpoenas. The court ordered Ratliff to comply with the Congressional subpoenas by allowing committee representatives to make copies of the materials in his possession pursuant to the court's order. A 5-day stay was ordered in the compliance required by the order to allow the McSurelys to seek Supreme Court review.

On January 20, 1968, Mr. Justice Stewart, again speaking for the Supreme Court, stayed the three-judge court order "to the extent that the seized documents shall remain in custody." [390 U.S. 914 (1968).] The stay was conditioned on the McSurelys filing an appeal of the October 30th three-judge court order with the Supreme Court.

On March 18, 1968, the Supreme Court declined to hear the case, dismissing the appeal in a per curiam order [390 U.S. 914 (1968)], but continued the stay to allow the McSurelys to apply to the Sixth Circuit Court of Appeals for a stay. By the time the McSurelys' appeal to the Sixth Circuit was taken, the time for the State to appeal the three-judge court's order of September 14, 1967, finding the Kentucky statute unconstitutional, had expired.

In July of 1968, the Sixth Circuit decided that since time for appeal of the September 14th order had run, "the right of the court to retain possession of the seized documents, which include no contraband, has expired." [McSurely v. Ratliff, 398 F.2d 817, 819 (6th Cir. 1968).] The Appeals Court ordered that the materials be returned to the McSurelys without prejudice to the subcommittee's right to proceed with the enforcement of its subpoenas: "Questions [as to the subpoenas] may be adjudicated under the appropriate procedure for challenging subpoenas of Congressional Committees." [398 F.2d 818, cited in 553 F.2d at 1309.]

On November 8, 1968, the seized materials were returned to the McSurelys. The McSurelys, who were immediately served with new subcommittee subpoenas similar to the original subcommittee subpoenas, refused to comply with the new subpoenas.

The McSurelys filed a civil action in the U.S. District Court for the District of Columbia on the date named in the subpoenas for

their appearance before the subcommittee. They sought a declaration that compliance with the subpoenas was not required, a preliminary and permanent injunction against institution of criminal proceedings against them for their failure to comply with the subpoenas, and monetary damages.

No action had been taken in this civil suit at the time the McSurelys were indicted for contempt of Congress for failure to comply with the subpoenas. Subsequently, in their civil action, they filed an amended and supplemental complaint seeking only compensatory and punitive damages. The McSurelys alleged that the defendants, Senator McClellan, three members of the subcommittee staff, and Ratliff the Kentucky Commonwealth Attorney who initially seized from their home the documents which included those later subpoenaed by the subcommittee, entered into a conspiracy to deprive them of their constitutional rights. They sought damages "for the unlawful seizure, inspection and appropriation of their personal and business papers and documents and other objects and articles, for the issuance of subpoenas based on illegally obtained information and invalid on their face, for their humiliation and embarrassment, mental and emotional pain, loss of employment, disruption of personal privacy and safety caused thereby, all in violation and derogation of their rights under the First, Fourth, Fifth, and Fourteenth Amendments to the U.S. Constitution and the laws of the United States." [Plaintiff's Amended and Supplemental Complaint, at 13-14.]

In the criminal action for contempt of Congress, the McSurelys were convicted and sentenced in June 1970. The convictions were appealed to the Court of Appeals. The decision of the Court of Appeals, reversing the contempt of Congress convictions of the McSurelys, was filed on December 20, 1972. The majority of the court took the position that the exclusionary rule of evidence applied to proceedings before Congressional committees as well as to criminal prosecutions, and therefore, the court held that the subcommittee's subpoenas were inadmissable as the fruit of an unlawful search and seizure. [United States v. McSurely, 473 F.2d 1178 (D.C. Cir. 1972).] The case was remanded to the U.S. District Court for the District of Columbia with instructions to enter judgments of acquittal in the matter of the contempt convictions. The Solicitor General decided not to petition the Supreme Court for a writ of

certiorari.

In the civil proceedings brought by the McSurelys, Chairman McClellan and three subcommittee staff members filed a motion to dismiss, or, in the alternative, for summary judgment in the District Court on October 26, 1971.

The grounds claimed in support of the motion were:

(1) Defendants are immune from actions for damages where as here it is clear that their conduct was within the sphere of legislative activity. (2) The claimant fails to state a claim upon which relief can be granted against defendants who were a U.S. Senator or employees of the Senate of the United States at all times material to this cause. (3) Plaintiffs are barred by collateral estoppel from relitigating issues previously settled by the judgment of this court in United States v. Alan McSurely and Margaret McSurely,

Criminal Nos. 1376-69, 1377-69. * * *

[Defendants' Motion to Dismiss or in the Alternative for Summary Judgment, at 1.]

The motion to dismiss was denied on June 12, 1973, and after the motion for reconsideration was rejected, the Federal defendants filed notice of appeal.

In a 2 to 1 decision on October 28, 1975, the U.S. Court of Appeals for the District of Columbia reversed the District Court's ruling and remanded the case for further action consistent with its holding.

The three-judge panel of the Appeals Court held that, as a matter of law, the defendants were entitled to summary judgment on all counts of the complaint relating to the inspection by the committee investigator of the seized material, the transportation of such material to Washington by the investigator, the utilization of the information by the investigator as the basis for Congressional subpoenas, and the issuance of Contempt of Congress citations against the plaintiffs.

The Appeals Court left for the District Court on remand the determination of whether the defendants actively collaborated in the original raid on the McSurelys' home and, if so, whether there was sufficient evidence of such collaboration to merit a trial on that issue.

In addition, the Appeals Court remanded to the lower court the question of whether the defendants distributed copies of documents to individuals or agencies outside Congress-and, if so, whether such distribution was actionable. [McSurely v. McClellan, 521 F.2d 1024 (D.C. Cir. 1975).]

The McSurelys filed a petition for a rehearing by the Court of Appeals sitting en banc.

On December 10, 1975, the decision of the Court of Appeals was vacated and the petition for a rehearing en banc was granted. On December 21, 1976, the Court of Appeals en banc issued its opinion.

A majority of the court held that as a matter of law the Federal defendants were entitled to summary judgment on:

(1) allegations in the amended complaints pertaining to the subcommittee staff's inspection of the 234 documents that Brick the subcommittee investigator brought to the subcommittee,

(2) the utilization of the information obtained by Brick as the basis for congressional subpoenas, and

* *

(3) the issuance of Contempt of Congress citations The majority further said that: "since no allegation has been made as to conspiracy in the original raid of the McSurley's home, appellants are entitled to dismissal on this point." [553 F.2d at 1299.]

As to the first three points the court found that the activities complained of were done within the legislative process and were protected by Speech or Debate Clause immunity or legislative immunity.

Left for the District Court's consideration and initial determination on remand were: