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authorized. Benford v. American Broadcasting Companies,
502 F.Supp. 1148, 1156 (D.Md. 1980).2

In view of the pendency of Congressional defendants
motion for summary judgment on qualified immunity
grounds,3 Congressional Defendants Motion To Dismiss or
Alternatively for Summary Judgment of Counts 1-III (April
15, 1980) and the Court's postponement of those issues for
later consideration, the impact of Harlow on the case be-
comes apparent ...

2 In its previous opinion the Court decided only the inapplicability of the legislative immunity and deferred final resolution of the other immunity defenses raised by Congressional defendants. 502 F.Supp. at 1151. As we will show infra the appropriate time for that resolution has arrived.

3 Congressional defendants have claimed immunity for this suit based on three separate and distinct forms of immunity: (1) The absolute immunity for legislative actions provided in the text of the Constitution at Article I, Section 6, Clause 1; (2) An absolute official immunity judicially created and conferred upon certain public officials whose functions warrant such protection, notably judges, prosecutors and now, the President; and (3) a qualified immunity referred to as “good faith” immunity which represents the judicially created balance between “the need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority,Butz v. Economou, 438 U.S. 478, 506 (1978), and the importance of a damages remedy to protect the rights of citizens. Pursuant to this immunity doctrine a public official is immune from private civil damages subject to certain limitations qualifications. As this memorandum will demonstrate the Supreme Court has recently enunciated a new test for the application of this immunity. For purposes of assessing the impact of Harlow on this case, our memorandum focuses principally on this qualified immunity as redefined. [Congressional Defendants’_Supplemental Memorandum on the Impact of Harlow v. Fitzgerald . . ., August 6, 1982,

at 1-3] In the Congressional defendants' view, none of the remaining five counts of the complaint-the three common law tort counts, the Federal eavesdropping Statute count, and the state wiretapping violation claim-could withstand scrutiny based on the new Harlow test. The three common law tort counts could not survive, the defendants insisted, because "Harlow, by its terms, provides that only statutory and constitutional claims can survive summary judgment.(Id. at 15) The Federal statutory claim must fail, they argued, because it did not meet the Harlow test “since it does not constitute a clearly established' standard which it would have been reasonable for these defendants to believe governed their conduct.” (Id.] And the state statutory claim had to be dismissed, the Congressional defendants maintained, because the Maryland statute also did not provide a "clearly established standard" which they reasonably would have known governed their conduct. The Congressional defendants concluded that Harlow required both “an immediate consideration of the assertion of qualified immunity and the granting of summary judgment or dismissal” of the complaint on all the remaining counts. [Id. at 23-24)

On October 5, 1982, the plaintiff filed his memorandum on the impact of the Harlow case, and argued that the Congressional defendants had “failed to make the threshhold showing required to bring Harlow into play, namely that Congress authorized their eavesdropping.” [Memorandum on the Impact of Harlow v. Fitzgerald on this Suit and Supplemental Memorandum in Response to Defendants' Motion for Summary Judgment, October 5, 1982, at 1] On the contrary, said the plaintiff, the record demonstrated that

the defendants were not authorized to engage in electronic eavesdropping and nationwide broadcasting of private conversations. “The taping and broadcasting in suit did not implement Congress' informing function,” the plaintiff asserted, noting that such conduct was “not an “investigation,' i.e., the acquisition of information for use by the Congress, but the nationwide dissemination of a distorted version of a private conversation." [Id. at 7]

Moreover, the plaintiff contended, the Harlow case was inapplicable because the defendants had not shown that they were unaware that their electronic eavesdropping violated the law. In fact, the plaintiff maintained, evidence adduced in a companion case, Brown v. American Broadcasting Companies, Inc. (see page 230 of this report for a discussion of that case), gave rise to the inference that the defendants knew that the taping in which they were engaged was unlawful under Maryland law. In any event, the plaintiff continued, the Congressional defendants were not protected by the Harlow standard because the right to be free from electronic eavesdropping was "clearly established" within the meaning of Harlow and the defendants should have known that. Additionally, the plaintiff argued:

Defendants have also contended that the Title III of the Omnibus Crime and Safe Streets Act protects their eavesdropping, that Harlow precludes application of state common law to their official conduct, and that, in any event, the Maryland Wiretap Statute is preempted by the federal Act. These contentions are wrong. Read in light of its legislative history, the federal statute prohibits defendants' eavesdropping. In Harlow, the Court characterized plaintiff's claims as constitutional and statutory. It has no occasion to and did not rule that official immunity, precludes suits for violations of state common law rights. There is no warrant whatever for the proposition that the Maryland statute is prempted by the federal one. Both the face of the statute and its legislative history demonstrate that Congress intended to permit state statutes to remain in effect, so long as they were as strict as or stricter than the federal statute. Hence, defendants are not entitled to have the federal, common law and Maryland statutory counts of the complaint dismissed for failure to state

claims for relief. (Id. at 2] On November 9, 1982, the plaintiff filed a motion to vacate the court's July 16, 1982 order staying all non-written discovery involving defendants ABC and Osmer. The plaintiff argued that there was no reason he should not be permitted to proceed to depose the remaining defendants so long as he was not seeking discovery from the Congressional parties while the court considered the implications of the Harlow and Nixon cases. On December 6, 1982, the Congressional defendants filed an opposition to the plaintiff's motion to vacate the stay which argued that the threshhold question of official immunity should be decided before discovery was allowed to proceed. On the same day, defendants ABC and Osmer also filed an opposition to the motion to vacate the stay which pointed out that if the depositions went forward and if the Congres

sional defendants were subsequently held not to be immune under Harlow they (i.e. the Congressional defendants) would have to redepose many or all of those persons the plaintiff was then seeking to depose. Such a substantial risk of duplicative discovery justified the continuance of the stay, defendants ABC and Osmer contended.

Also on December 6, 1982, the Congressional defendants filed a reply memorandum on the impact of the Harlow case which attempted to answer each of the contentions of the plaintiff. In particular, the memorandum rejected the plaintiff's argument that the Congressional defendants lacked authorization for their actions and therefore did not come within the Harlow standard. The Congressional defendants insisted that their activities were official" if not purely “legislative” and were therefore properly authorized. Moreover, they argued, the plaintiff had failed to come forward with any specific evidence demonstrating that the taping and broadcasts at issue were not officially authorized. On the other hand, the Congressional defendants asserted, they had placed in the record substantial evidence indicating that their actions were within the sphere of their official responsibilities, including an affidavit to that effect from Select Committee Chairman Claude Pepper and a number of related statements.

On December 6, 1982, as well, defendants ABC and Osmer also filed a memorandum on the impact of the Harlow case. Pointing out that under Harlow a crucial issue was whether or not the plaintiff had alleged a violation of any “clearly established statutory . . . rights,” the ABC defendants argued that it was an open question as to whether the key meeting filmed by ABC consitituted a "private conversation" for purposes of the Maryland wiretapping statute. They maintained that in the absence of any state judicial interpretation of the phrase, the proper course would be to certify the issue the Court of Appeals of Maryland. Defendants ABC and Osmer explained:

The proper interpretation of "private conversation" as used in the Maryland statute is crucial in this case for several reasons. First, in the context of the Harlow issues, a definitive ruling by the Maryland Court of Appeals may be dispositive of the status of the Congressional defendants in the case: to wit, if plaintiff's standard sales pitch was not a "private conversation" under the statute, the Congressional defendants certainly did not violate any state statutory right, well-established or otherwise. The issues raised by the Congressional defendants and the plaintiff in their Harlow memoranda cannot be resolved in the absence of a dispositive ruling on the Maryland law.

Secondly, a definitive interpretation of the statutory language will be either wholly or at least predominantly controlling on the issue of the liability of any defendant in this case under plaintiff's Count I. And finally, the Court of Appeals' interpretation may avoid constitutional challenges, such as overbreadth and vagueness, to the statute. Memorandum of Defendants ABC and Osmer-McQuade

On the Impact of Harlow v. Fitzgerald, December 6, 1982, at 3-4]

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On December 15, 1982, the plaintiff filed a reply memorandum opposing the ABC defendants' proposed order of certification. The plaintiff maintained that the U.S. District Court was "more than adequately qualified” to determine the meaning of the phrase "private conversation."

Also on December 15, 1982, the plaintiff filed a reply memorandum in answer to the ABC and Congressional defendants' opposition to his motion to vacate the stay of all non-written discovery. The plaintiff argued that he would be greatly prejudiced by any further delay in the case.

On December 22, 1982, Judge Northrop issued a memorandum and order denying with prejudice the motion of the Congressional defendants for summary judgment on the basis of qualified immunity and lifting the stay order regarding discovery in the case. [Benford v. American Broadcasting Companies, Inc., Civil Action No. N-79-2386 (D. Md. 1982)] Judge Northrup held that both the Maryland wiretapping statute (the basis of Count I of the complaint) and the Federal Eavesdropping Statute (the basis of Count IV) were "clearly established” under the Harlow test and would have been known to a reasonable person at the time the defendants surreptitiously taped and broadcast the relevant meeting. Although Judge Northrup agreed with the Congressional defendants that Harlow was inapplicable to the three common law tort claims (the basis of Counts III, V, and VI), he ruled that the defendants were nonetheless not officially immune to the claims because they had failed “to adequately demonstrate that they acted within the scope of their authority in the broadcasting of excerpts of that meeting on national television, said broadcast being well beyond the legislative function.” [Memorandum, December 22, 1982, at 2425]

Judge Northrup found that under Harlow the defense of qualified immunity was available to public officials in situations where they could demonstrate that (1) their actions were taken “reasonably and in good faith” (i.e., the actions did not violate any “clearly established statutory or constitutional rights of which a reasonable person would have known”) and (2) their conduct was authorized. Applying this test to the instant case, Judge Northrup determined that the Congressional defendants were not entitled to official immunity. With respect to the Maryland wiretapping statute, he found the language to be "quite clear and understandable” [Id. at 13] and dismissed out of hand the suggestion that the question of its interpretation should have been certified to the Maryland Court of Appeals. “One of the clear purposes of the Maryland Act,” the judge found, was “to prevent, in non-criminal situations, the unauthorized interception of conversations where one of the parties has a reasonable expectation of privacy.” [Id. at 12] Similarly, with respect to the Federal Eavesdropping Statute, Judge Northrup ruled that its mandate also met the “clearly established standard of Harlow:

The plaintiff met in a private home with a select group of individuals who had represented, albeit falsely, they were interested in purchasing insurance. The plaintiff did not personally expect, nor did he intend, for his remarks to be

intercepted, partly for broadcast to the American public on
national television. Certainly, no reasonable person enter-
ing a private home to sell insurance under similar circum-
stances would have anticipated his conversation would be
electronically monitored. The plaintiff, therefore, did par-
take in an "oral communication", 18 U.S.C. $ 2510(2), a
term whose meaning this Court finds was "clearly estab-
lished” within the context of Harlow, in November, 1978.
See Benford v. American Broadcasting Companies, 502 F.
Supp. 1159, 1162 (D. Md. 1980). Cf. Procunier Navarett,

supra.[Id. at 19-20 (footnote omitted)] Finally, Judge Northrup held that the Congressional defendants were correct in their assertion that Harlow applied only to statutory and constitutional claims and was inapplicable to common law claims. Nonetheless, he ruled that the defendants were still not protected by qualified immunity because there was “no record evidence to show this broadcast was legitimately authorized by Congress or was part of the deliberative or legislative process.” [Id. at 24] Judge Northrup explained:

In this case, the congressional defendants operated under
the auspices of the House Select Committee on Aging,
whose chairman was, and remains, Congressman Claude
D. Pepper (D. Fla.). Although the congressional defendants
have submitted much documentation which would indicate
the final results of their investigation were well received
by Congressman Pepper and other members of the United
States House of Representatives, there is still no record
evidence to indicate any individual member of Congress or
staff member of the Select Committee possessed the actual
power to arrange and/or authorize the public broadcasting
of the plaintiff's November 3, 1978, meeting. " Nor is this
court aware of a House resolution or Court order which
granted the congressional defendants power to broadcast,
with ABC, the plaintiff's November 3, 1978 meeting. In the
absence of any proof that this authority existed by law,
this Court has no choice but to find the congressional de-
fendants' public broadcasting of the plaintiff's meeting was
beyond the province of the Select Committee and therefore
beyond their permissible scope of authority. 12 See McSurely
v. McClellan, 553 F.2d 1277, 1285 (D.C. Cir. 1976) (en banc)
("To the extent plaintiffs charge dissemination outside the
Halls of Congress, the federal defendants are not immune
to further questioning."); Cf., Gravel v. United States, 408
U.S. 606, 620, 92 S.Ct. 2614, 2625, 33 L.Ed.2d 583 (1972)
(The Supreme Court has taken “a decidedly jaundiced view
towards extending the (Speech and Debate) Clause so as to
privilege illegal or unconstitutional conduct beyond that
essential to foreclose executive control of legislative speech
or debate and associated matters such as voting and com-
mittee reports and proceedings.”)13

11 The congressional defendants suggest their agreement with defendant ABC which resulted in the broadcasting of plaintiff's meeting was directly authorized by

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