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On October 8, 1982, the Federal defendants filed a reply memorandum in support of their motions for summary judgment and in opposition to the plaintiffs' cross motion. In particular, the defendants took issue with the McSurelys' characterization of the December 1976 appeals court remand decision. Because the circuit court had been equally divided, the defendants argued that there was in fact no “holding” on the issue of their liability. The Federal defendants also attacked the plaintiffs' allegation of a conspiracy actionable under 42 U.S.C. § 1985(3). There was no express or implied agreement among the defendants as to the object of any conspiracy, the defendants asserted, noting that mere common employment was insufficient to support a cause of action under the statute.

On October 12, 1982, the plaintiffs filed an opposition to Mr. Ratliff's motion to dismiss or for summary judgment. They argued that: (1) those actions of Mr. Ratliff which caused their injuries were outside the scope of his prosecutorial function; (2) he did not enjoy absolute immunity for investigative and administrative duties; and (3) he was not entitled to a defense of good faith. In particular, the plaintiffs took issue with Mr. Ratliff's assertion that he was absolutely immune from liability because he was acting as a prosecutor. Rather, they said, he was performing tasks ordinarily performed by a police officer:

A cursory examination of the Amended and Supplemental Complaint fails to reveal a single allegation concerning the prosecution of plaintiffs. Plaintiffs are not seeking to recover damages for a malicious prosecution-plaintiffs are seeking to recover damages for Defendant Ratliff's participation in the public meeting in which the raid on plaintiffs' home was planned, defendant Ratliff's participation in that raid and the subsequent dissemination of plaintiffs' documents. None of the actions for which plaintiffs seek damages can rightly be called "prosecutorial”. Defendant Ratliff's actions were outside the scope of his prosecutorial functions and therefore he is not able to avail himself of the defense of absolute immunity. [Plaintiffs' Opposition to Defendant Ratliff's Motion to Dismiss or, in the Alterna

tive, for Summary Judgment, October 12, 1982, at 9] As they had with respect to the Federal defendants, the plaintiffs also rejected Mr. Ratliff's argument that the Harlow decision afforded him qualified immunity. “The very scope of his late-night raid negates any goodfaith (sic) defenses,” the plaintiffs asserted. [Id. at 15)

On October 19, 1982, Mr. Ratliff filed a reply to the plaintiffs' opposition to his motion to dismiss or for summary judgment. The memorandum restated his previous arguments and emphasized that, under Kentucky law, Mr. Ratliff's duties as Commonwealth's Attorney encompassed his actions in this case.

On October 27, 1982, the plaintiffs filed a reply to the Federal defendants' opposition to their motion for summary judgment. The plaintiffs argued, inter alia, that the circuit court's 1976 remand decision, although handed down by an equally divided court, repre

sented the opinion of the District of Columbia Circuit and had to be followed.

Also on October 27, 1982, District Judge Bryant issued a memorandum and order denying the motion of the Federal defendants to dismiss Margaret McSurely's claims. Judge Bryant noted that the discovery disputes regarding Ms. McSurely's medical records had apparently been resolved.

Also on October 27, 1982, the Federal defendants filed a supplemental motion for summary judgment arguing that the claims against defendant Brick were barred by the statute of limitations and/or res judicata or collateral estoppel. On November 1, 1982, the plaintiffs filed a response to this motion, disputing the defendants' contentions on both substantive and procedural grounds. In particular, the plaintiffs objected to the fact that the issues had been raised for the first time after more than ten years of active litigation.

On November 3, 1982, a hearing was held before Judge Bryant on various pending motions and he issued orders from the bench as follows: (1) denying the plaintiffs' motion for partial summary judgment; (2) denying the separate motions of the Federal defendants for summary judgment; (3) denying a motion of the Federal defendants to sever the claims against them from the claims against Mr. Ratliff or, alternatively, for separate trials; and (4) denying motions of Mr. Ratliff to transfer venue and to dismiss for lack of personal jurisdiction. (Judge Bryant issued a number of other orders from the bench on November 3, but apparently vacated them, sua sponte, on November 5.) The statute of limitations and res judicata issues were argued and taken under advisement.

On November 10, 1982, Judge Bryant issued further orders: (1) denying the summary judgment motions based on the statute of limitations and res judicata; and (2) granting a motion by the plaintiffs to amend the complaint.

On November 16, 1982, Judge Bryant issued a memorandum and order addressing Mr. Ratliff's arguments on prosecutorial immunity. The judge held that Mr. Ratliff's motion to dismiss the complaint could not be sustained because “[a]ctions attributed to defendant Ratliff, via allegations and proffer of substantial proof, for which plaintiffs seek damages do not fall within the immunized circle of quasi-judicial prosecutorial functions traditionally protected from civil suit.” [Memorandum and Order, November 16, 1982, at 2] Judge Bryant also denied Mr. Ratliff's alternative motion for summary judgment based on qualified immunity under the Harlow case. He explained:

The application of the Harlow objective standard clearly establishes that summary judgment should not be granted. Evidence indicates that defendant Ratliff understood the warrant was unconstitutional. He is quoted as saying as much, and the Supreme Court decision in Stanford v. Texas, 379 U.S. 476 (1965), decided two years before defendant Ratliff procured the warrant to search the home of the plaintiffs, would have given him reason to know that the warrant was patently unconstitutional. Even if the warrant had been valid on its face, there is offer of proof that

defendant Ratliff executed the warrant unconstitutionally
and transferred the fruits of the search to Congress with-
out authority. Thus there is rather substantial evidence to
be offered to establish that defendant Ratliff's conduct did
violate clearly established statutory or constitutional
rights of which a reasonable person would have known.

[Id. at 4] Finally, Judge Bryant denied as well an oral motion by Mr. Ratliff to stay the scheduled trial proceedings while he filed an interlocutory appeal from the order denying his motion for summary judgment.

On the same day Judge Bryant handed down his memorandum and order, Mr. Ratliff filed a notice of appeal of the decision to the U.S. Court of Appeals for the District of Columbia Circuit (No. 822369] and an emergency motion for a stay of his trial in the lower court.

On November 18, 1982, the circuit court issued a per curiam order expediting the appeal but denying Mr. Ratliff's motion for a stay of the trial proceedings. The court noted that Mr. Ratliff's arguments on absolute and qualified prosecutorial immunity were not sufficiently meritorious to warrant the equitable remedy sought.

On November 19, 1982, both the defendant-appellant Ratliff and the plaintiffs-appellees filed their briefs in the appeals court, essentially reiterating the arguments they had made in the district court. Mr. Ratliff again contended that: (1) he was at all relevant times acting as a prosecutor within the duties of the office of Commonwealth's Attorney; (2) as a prosecutor, he was absolutely immune from liability for all his actions not “manifestly or palpably beyond his authority," and his actions in this case could not be so characterized; (3) he was also absolutely immune from liability for his actions relating to the plaintiffs' documents since he was serving as the court-appointed custodian of the McSurelys' papers and was thus an officer of the court; and (4) as a prosecutor and court-appointed custodian, he was protected from liability by qualified immunity for all acts done in an investigative or administrative capacity under the Harlow case, because his actions did not violate clearly established constitutional rights.

The plaintiffs, on the other hand argued once more that Mr. Ratliff was not entitled to absolute prosecutorial immunity. Such absolute immunity was limited to circumstances where the prosecutor's activities were “intimately associated with the judicial phase of the criminal process," the plaintiffs asserted, citing Imbler v. Pachtman, 424 U.S. 409, 430 (1976). In this case, they again emphasized, Mr. Ratliff's activities were “plainly outside” the parameters of prosecutorial activity for which absolute immunity was available. Moreover, the plaintiffs contended, Mr. Ratliff was also not entitled to summary judgment on his claim of qualified immunity based on the Harlow case since there were unresolved factual disputes as to whether he was aware at the time of his actions that he was violating the law.

On December 10, 1982, the court of appeals issued a per curiam opinion affirming the district court's refusal to dismiss the McSurelys' complaint against Mr. Ratliff and its denial of his motion for summary judgment. [McSurely v. McClellan, 697 F.2d 309 (D.C. Cir. 1982)] The court found, as a matter of law, that Mr. Ratliff's activities were not entitled to absolute immunity from suit and that the district court's denial of summary judgment on the qualified immunity claim was supported by the disputed evidence in the record.

At the outset, the court noted that absolute immunity was confined to a prosecutor's quasi-judicial or advocative actions, whereas a prosecutor engaged in essentially investigative or administrative functions received only the lesser protection of qualified immunity. The court then ruled that the McSurelys' principal allegations regarding Ratliff's activities as Commonwealth's Attorney did not significantly implicate the prosecutor's absolutely protected advocative functions. The court explained:

The first activity-participating in a public meeting-is wholly unconnected to advocacy involving a particular case. Similarly, preparation of the arrest and search warrants and participation in the search and seizure are nonadvocative. They involve not the protected decision to initiate prosecution, but rather the earlier, preliminary gathering of evidence which may blossom into a potential prosecution. The latter is investigatory activity and therefore receives only qualified immunity. United States v. Heldt, 668 F.2d 1238, 1276 (D.C. Cir. 1981), cert. denied, U.S. --, 102 S. Ct. 1971, 72 L. Ed. 2d 440 (1982); Apton v. Wilson, 506 F.2d 83, 91 (D.C. Cir. 1974); Robichaud v. Ronan, 351 F.2d 533, 536-37 (9th Cir. 1965); accord Marrero v. City of Hialeah, 625 F.2d 499, 505 (5th Cir. 1980) ("a prosecutor who assists, directs or otherwise participates ... in obtaining evidence prior to an indictment undoubtedly is functioning more in his investigative capacity than in his quasi-judicial capacities of deciding which suits to bring and ... conducting them in court' ') (quoting Imbler, 424 U.S. at 424, 96 S. Ct. at 992), cert. denied. 450 U.S. 913, 101 S. Ct. 1353, 67 L. Ed. 2d 337 (1981).

The McSurelys' allegations regarding the safekeeping of the seized materials also describe activities outside the scope of a prosecutor's absolute immunity from suit. Ratliff's responsibilities as custodian of the seized McSurely materials involve administrative and not advocative action. Subsequent to the safekeeping order, Ratliff could not have been prosecuting a particular case against the McSurelys, because the district court had invalidated the Kentucky sedition statute and enjoined further prosecution. This decision clearly terminated any prosecutorial authority Ratliff might otherwise have possessed. [697 F.2d at

319-20 (footnote omitted)] Turning to the question of qualified immunity, the court found that, because there were a number of genuine issues of material fact in dispute in the case insofar as Mr. Ratliff's investigative and safekeeping activities were concerned, the district court did not abuse its discretion in denying the motion for summary judgment. In large part the court's conclusion was based on its factual findings in its 1972 decision in the McSurely case. (United States v. McSurely, 473 F.2d 1178 (D.C. Cir. 1972)]

21-618 0-83--14

Meanwhile, in the district court, on November 22, 1982, the trial of the case began and on December 7 Judge Bryant directed a verdict in favor of Congressional defendant O'Donnell. The trial continued until January 5, 1983 when the jury began its deliberations. On January 7, 1983, the jury returned its verdict in favor of the plaintiffs against the remaining defendants and awarded damages as follows: $218,260 against the estate of Senator McClellan; $84,615 against the estate of Evelyn Adlerman; $105,300 against Mary Brick; and $282,500 in compensatory damages and $920,000 in punitive damages against defendant Ratliff.

On January 20, 1983, the three remaining Federal defendants filed a motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial. In an accompanying memorandum, the defendants raised a number of technical, procedural, and evidentiary points, and also restated several of the substantive arguments they had made during the course of the proceedings. Additionally, they contended that the verdicts were excessive. On the same day, Mr. Ratliff also filed a motion for a judgment notwithstanding the verdict or, alternatively, for a new trial or for remittiture. He too termed the verdict excessive and contrary to the evidence, and asserted that there were numerous errors in the court's conduct of the trial. Mr. Ratliff asked as well for a stay of the execution of the judgment pending disposition of his motion. On February 8, 1983, the Federal defendants filed a separate motion for a stay of the execution of the judgment.

Also on February 8, 1983, the plaintiffs filed responses to the various post-judgment motions previously submitted by the defendants. On February 28, 1983, the plaintiffs filed an opposition to the Federal defendants' motion for a stay of the judgment.

Status—The case is pending in the U.S. District Court for the District of Columbia.

The complete text of the December 20, 1972 decision of the circuit court is printed in the “Decisions” section of Court Proceedings and Actions of Vital Interest to the Congress, December 1972.

The complete text of the October 28, 1975 decision of the circuit court panel is printed in the “Decisions” section of Court Proceedings and Actions of Vital Interest to the Congress, December 31, 1975.

The complete text of the December 21, 1976 decision of the en banc circuit court is printed in the "Decisions” section of Court Proceedings and Actions of Vital Interest to the Congress, December 1976.

The complete text of the January 17, 1979 memorandum order of the district court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, March 31, 1979.

The complete text of the December 4, 1981 memorandum and order of the district court is printed in the “Decisions” section of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1982.

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