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order staying discovery. A written opinion was to be issued subsequently.

On October 17, 1980, defendant Margaret Osmer moved to dismiss the complaint, arguing that the plaintiff had alleged no specific unlawful act on her part nor any specific facts linking her to the allegedly unlawful acts. Additionally, as to Counts II and IV, she moved to dismiss, as had ABC, because the Fourth Amendment did not regulate nongovernmental searches and seizures and because the alleged surveillance was consented to. The plaintiff opposed this motion for reasons he had articulated previously.

On November 14, 1980, Judge Northrup issued his written opinion holding that neither the taping of the Benford meeting nor the subsequent broadcasting was absolutely protected by either the Speech or Debate Clause or the doctrine of official immunity (Benford v. American Broadcasting Companies, Inc., , 502 F. Supp. 1148 (D. Md. 1980] The court also held, however, that upon showing that the taping and broadcasting were properly authorized, the Congressional defendants would be entitled to assert a defense of qualified immunity.

With respect to ABC's broadcast of the key meeting, the court noted that in "recent decisions concerning the scope of the Speech or Debate Clause, the Supreme Court has exhibited a reluctance to extend the protective shield to the private publication of materials obtained in the course of legitimate legislative activity." [502 F. Supp. at 1153] For this proposition the court cited Gravel v. United States, 408 U.S. 606 (1972); Doe v. McMillan, 412 U.S. 306 (1975); McSurely v. McClellan, 553 F.2d 1277 (D.C. Cir. 1976); and Hutchinson v. Proxmire, 443 U.S. 111 (1979). The court also dismissed the Congressional defendants' contention that the broadcast was justified in furtherance of the “informing function" of Congress. Although the court insisted that it did not question the value of that function, it concluded that there was "no legitimate reason for using it as a means of protecting the publication of materials injurious to private individuals." [Id. at 1155]

With respect to the “more difficult question” of the taping of the meeting, the court found that without deciding "whether the actions of the congressional defendants were unlawful or unconstitutional, and, if so, if other defenses are available, . . . there is still] sufficient evidence in the record which affords more than merely colorable substance" to plaintiff's claims. [Id. at 1156] The court noted that the defendants had ample opportunity to protect themselves by seeking judicial permission for the taping prior to the meeting but had failed to do so.

With respect to the doctrine of official immunity, the court found "no justifiable reason for affording the congressional defendants absolute official immunity when these officials are not deserving of absolute protection under the Speech or Debate Clause. The right of legislative officials to absolute immunity is limited to the protection accorded by the Speech or Debate Clause." [Id. at 1158]

On the same day that the written opinion was issued, a hearing was held before the court on ABC's motion to dismiss Counts II and IV of the complaint and the motion of defendant Osmer to dismiss the complaint in its entirety. In an order filed on November 24, 1980, Judge Northrup granted the motions only as to Count II,

holding that because one of the parties consented to the taped conversation there was no viable Fourth Amendment claim. The judge denied the motions to dismiss the remaining counts of the complaint.

On November 25, 1980, the Congressional defendants renewed their motion to dismiss Count II of the complaint as to them, based on the court's holding with respect to ABC that the Fourth Amendment could not be violated where consent to record was conferred by a participant to a conversation. Simultaneously, the Congressional defendants filed a motion and accompanying memorandum seeking reconsideration of the court's November 14th order. The crux of the reconsideration motion was that allegations of conduct constituting neither "taping" nor "broadcasting” pervaded the complaint and these allegations involved preparatory acts within the "legitimate legislative sphere." The memorandum argued that the court had to decide the immunity issues on the basis of all the conduct allegedly committed by the Congressional defendants, "rather than limiting its discussion to the taping and subsequent broadcasting, actions which the Amended Complaint does not even charge against Congressional defendants.” [Memorandum of Points and Authorities in Support of Reconsideration, November 25, 1980, at 4) The memorandum also attacked the court's opinion for undermining the concept of legislative immunity by seemingly adopting an “illegality exception” when a plaintiff simply alleged a statutory or constitutional violation. In this regard, the Congressional defendants stated:

To read McSurely, Dombrowski, and the Gravel dicta as creating an “illegality" exception broad enough to encompass all allegations otherwise actionable before the judicial branch is to read legislative immunity out of the Constitution. If a legislator can be forced to fully defend against any cause of action or claim actionable at law, however frail, then legislative immunity provides no greater protection than a motion to dismiss under the Federal Rules of Civil Procedure. The entire history of legislative immunity

must be ignored to countenance such a ruling. (Id. at 10] The motion to reconsider was opposed in a filing by the plaintiff on December 10, 1980, which took the position that all the defendants engaged in a conspiracy against Mr. Benford of which the taping and broadcasting was an integral part.

On January 14, 1981, the court issued an order granting the motion of the Congressional defendants to dismiss Count II of the complaint and denying the request for reconsideration. Judge Northrup, in rejecting the reconsideration arguments of the defendants, explained:

The congressional defendants insist that the arrangements made prior to the sales meeting must be distinguished from the meeting itself. It is fair to infer that the congressional defendants knew that the meeting was to be taped and that what they claim to be legitimate investigative activity was done with an eye toward the sales meeting. The many acts that the congressional defendants

claim must be separately considered were allegedly part of
a scheme that culminated with the meeting of November
3. The Court's judgment is unchanged that the preparato-
ry conduct must be considered in conjunction with the
taped meeting

In so deciding, this Court does not intend to suggest that
legislative investigations are unprotected. It merely asserts
that legislative officials who engage in allegedly illegal
conduct while gathering information are not absolutely

immune. [Memorandum, January 14, 1981, at 4] On January 21, 1980, the Congressional defendants filed a notice of appeal of the court's November 14th order to the U.S. Court of Appeals for the Fourth Circuit. (No. 81-1200]

On February 27, 1981, defendants Osmer and ABC filed a motion in the district court requesting a stay of the proceedings until the Congressional defendants' appeal to the Fourth Circuit was ruled upon. On March 4, the same defendants asked the lower court for a protective order directing that the noticed depositions of Ms. Osmer and certain other ABC employees be stayed pending the appeal.

On March 9, 1981, the Congressional defendants also filed a motion to stay all further proceedings-including discovery-in the district court. In an accompanying memorandum, the defendants argued that their appeal had completely divested the district court of jurisdiction over the case and transferred it to the court of appeals. Furthermore, they argued, the issue on appeal was fundamental to the strategy and posture of all the defendants in the case, and the appeal could well dispose of the entire suit. Finally, the Congressional defendants asserted, allowing simultaneous proceedings in the district court would potentially result in duplicitous or unnecessary proceedings, wasting the time and resources of the parties and the court.

Also on March 9, 1981, the plaintiff filed a memorandum in the district court in opposition to the motion of defendants ABC and Osmer for a stay of proceedings and a protective order. In it, Mr. Benford argued that the district court orders which had been appealed by the Congressional defendants were interlocutory in nature and therefore complete jurisdiction over the case was not vested in the appeals court. In particular, the plaintiff maintained, the appeal did not divest the lower court of jurisdiction over the non-appealing defendants (ABC and Ms. Osmer) and over discovery involving them. Furthermore, the plaintiff asserted, the issue on appeal-the existence of Congressional immunity-was not relevant to defendants ABC and Osmer and would not protect them even if the court of appeals ruled in the Congressional defendants favor.

On March 10, 1981, a hearing was held before Judge Northrup on all pending motions, and the next day he signed an order granting the Congressional defendants' motion for a stay to the extent that no trial was to be held until their appeal was finally disposed of. In the same order, Judge Northrup denied the motion of defendants ABC and Osmer for a protective order halting discovery. On March 13, 1981.

the Congressional defendants filed a motion in the court of apo or a stay of all proceedings in the lower court during the appeal. The defendants argued that Judge Northrup's order, while directing that a trial could not proceed while the appeal was pending, did permit discovery to continue and therefore failed to "adequately provide protection of the Congressional defendants substantial right to have their Speech or Debate appellate claims adjudicated before being forced to defend themselves for acts claimed to be within the immunity.” [Brief in Support of Motion for Stay Pending Appeal, March 13, 1981, at 3] The Congressional defendants also reiterated their arguments, made in the district court, that their appeal vested complete jurisdiction of the case in the appeals court making further proceedings in the lower court inappropriate. This was particularly so because the issue on appeal of Speech or Debate immunity could not, they contended, be separated from other aspects of the case. The Congressional defendants concluded:

To summarize, the District Court has by its Order sanctioned the taking of interrogatories and requests for the production of documents and has in fact only precluded proceeding to actual trial. These modes of discovery are every bit as intrusive and destructive of the Speech or Debate Clause immunity as the depositions initially sought by Plaintiff and present the threat that the significant and substantial rights of a coordinate branch of government will be lost for want of a stay. It is precisely those activities which are within the protection of the Speech or Debate Clause and which are the subject matter on appeal to this Court. Since this subject matter permeates the allegations described in the Amended Complaint, and makes up the substance of the District Court's orders appealed from, the District Court has been divested of jurisdiction over that substance by the filing of the Notice of Appeal

and all further proceedings should be stayed. (Id. at 9-10] On March 20, 1981, plaintiff Benford filed a response to the Congressional defendants' motion for a stay in the court of appeals. He argued that: (1) the suit involved multiple parties and there was no just reason for delay with respect to non-appealing defendants ABC and Osmer; (2) no immunity, if any, which the appeals court might determine the Congressional defendants enjoyed would be applicable to defendants ABC and Osmer; (3) the orders appealed from by the Congressional defendants were interlocutory in nature and premature and therefore did not vest jurisdiction in the appeals court; (4) by stipulation in the lower court, the plaintiff and defendants ABC and Osmer had agreed that the noticed depositions would be withdrawn but that discovery by interrogatories and production of documents would move forward; (5) given the substantial passage of time since the case was filed, the plaintiff would be prejudiced if discovery was further postponed, while the Congressional defendants would not be injured in any way if discovery moved ahead according to the stipulation; and (6) precedent indicated that the Congressional defendants could not avail themselves of Speech or Debate Clause immunity in this matter and therefore they would not succeed on appeal.

Also on March 20, 1981, plaintiff Benford filed a motion in the court of appeals for an order to protect and preserve all documents related to the case in the defendants' possession during the appeal. Simultaneously, he filed an identical motion in the district court.

On March 24, 1981, the Congressional defendants filed a supplemental brief in the appeals court in support of their motion for a stay. They argued that the motion to protect and preserve documents filed by the plaintiff in the district court provided a “dramatic illustration" of the necessity for the court of appeals to grant the stay, since the relief sought by the plaintiff in the lower court would "necessarily entail a determination of the issue on appeal.'

On March 27, 1981, the Congressional defendants simultaneously filed oppositions to the plaintiff's motion for an order to protect and preserve documents in both the district court and the court of appeals. In the lower court the defendants reemphasized their argument that the court could not enter such an order because jurisdiction over the case was vested in the appeals court and the order would require a determination of the precise issues on appeal. They also contended that there had been no showing that the records of the House were in any jeopardy and therefore such an order was unnecessary. Finally, they asserted that it was doubtful that a district court could issue such a "coercive" order intruding into the internal affairs of a coordinate branch, since it would contravene not only the Speech or Debate Clause but also the separation of powers doctrine.

In the court of appeals the Congressional defendants made similar arguments, emphasizing that the Speech or Debate Clause prevented the judiciary from entering coercive orders enjoining or requiring the performance of acts within the legitimate legislative sphere. According to the defendants, directing legislators or the House to take specific action with respect to papers and documents would reach into the “very core” of this legitimate legislative sphere. Furthermore, the defendants maintained, the court should decline to issue such an order to a coordinate branch as a matter of comity, particularly since no showing had been made that such extraordinary relief was necessary.

On April 1, 1981, a two-judge motions panel of the court of appeals handed down a memorandum and order denying the Congressional defendants' motion for a stay of all proceedings and declining to consider the plaintiff's motion for a protective order. On the question of the stay, the court ruled that it could consider the request, not as an appeal, but as an invocation of its jurisdiction under the All Writs Statute (28 U.S.C. $1651). The court found that, in granting a limited stay, the district court “was properly exercising its discretion under an inherent power to control further proceedings in the trial court during the pendency of an appeal from a judgment which does not finally dispose of all claims before it.” [Memorandum and Order, April 1, 1981, at 3] The motions panel rejected the Congressional defendants' argument that to allow even the limited discovery provided by the district court order would deprive them of the Speech or Debate Clause protection which was being litigated on appeal. The court concluded that the possible adverse "sm effects" from the limited discovery were “too peripheral

erest protected by the immunity as

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