Congressman Pepper. This Court need not reach that issue, however, as the thresh-
old question is whether he had the power to do so. Clearly, he did not.
12 This Court has already decided, inter alia:

(T)he publication of the taped meeting of November 3 was not "an inte-
gral part of the deliberative and communicative processes” of the Select

Benford v. American Broadcasting Companies, 502 F.Supp. 1148, 1154 (D.Md. 1980).

13 The congressional defendants' agreement that they are entitled to qualified im-
munity solely because their activities were “official” functions, as opposed to legisla-
tive functions, is not well taken. This Court has already stated that though it

"does not question the value of the “informing function of Congress,
(there appears to be) no legitimate reason for using it as a means of pro-

tecting the publication of materials injurious to private individuals."
Benford v. American Broadcasting Companies, Inc., 502 F. Supp. 1148, 1155 (D.Md.
1980). See also: Hutchinson v. Proxmire, 443 U.S. 111, 99 S. Ct. 2675, 61 L. Ed. 2d
411 (1979).

[Id. at 22-23 (footnote omitted)] On January 26, 1983, a hearing was held before Judge Northrup on the April 15, 1982 motion of the Clerk of the House (now Benjamin J. Guthrie) to quash a subpoena duces tecum served on him seeking the production of certain documents and evidence. (See discussion supra, page 221.) Judge Northrup indicated from the bench that the motion to quash would be denied and confirmed that ruling in a written memorandum and order issued on January 31, 1983. The judge found that the court had jurisdiction to serve a subpoena on a witness for deposition who worked or resided within 40 miles of the court.

On February 4, 1983, the Congressional defendants filed a notice of appeal of Judge Northrup's December 22, 1982 decision to the U.S. Court of Appeals for the Fourth Circuit. [No. 83–1168]

On February 17, 1983, plaintiff-appellee Benford filed a motion to dismiss the appeal in the Fourth Circuit, arguing that the denial of the motion for summary judgment by the district court was nonfinal and interlocutory and therefore unappealable.

On February 25, 1983, the Congressional defendants-appellants filed a brief in opposition to the motion to dismiss the appeal, which asserted that although appeals from denials of summary judgment were not generally appealable, “the instant appeal is squarely within the exception created by Harlow since it conclusively determine[s] a disputed question, resolve[s] an important issue completely separate from the merits of an action and (are) effectively unreviewable on appeal from a final judgment.' Nixon v. Fitzgerald, 102 S.Ct. 2690, 2698, quoting, Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)." (Congressional Appellants' Brief in Opposition to Appellee's Motion to Dismiss Appeal, February 25, 1983, at 8]

On February 25, 1983, the Select Committee on Aging filed a motion in the district court to intervene in the case and to obtain a protective order from the deposition subpoena served on the Clerk of the House. In an accompanying memorandum, the Select Committee asserted that it had a clear interest" in a subpoena to the Clerk which sought production of records "generated within the Select Committee in connection with its legislative investigation and not disseminated beyond the confines of Congress consistent with the Speech or Debate Clause.” [Memorandum of Points and Authorities in Support of the Select Committee on Aging['s] ... Motion to Intervene and for a Protective Order, February 25, 1983, at 2] The Committee continued:

The Select Committee submits in support of its position that whether the defendants in this action can be put to their proof at trial concerning the taping and broadcast of the sales meetings, it is clear that the Select Committee need not disgorge its investigative files to a litigant, United States v. Peoples Temple of the Disciples of Christ, 515 F.Supp. 249 (D.D.C. 1981); it is equally clear, that even if plaintiff is able to go forward to trial he “must prove [his case through evidence which does not draw in question the legislative acts of the defendant member of Congress [and his aides) or (their) motives for performing them." McSurely v. McClellan, 553 F.2d 1277, 1299 (D.C. Cir. 1976) (en banc) quoting United States v. Brewster, 408

U.S. 501, 526 (1972) (Id. at 3] Moreover, said the Committee, “it should not be forced into the position of relying upon the Clerk of the House to risk contempt to protect its interests." (Id. at 4)

Finally, the Select Committee argued, an order against compelled disclosure was necessary to protect the investigative and research records sought by the plaintiff which were privileged under the Speech or Debate Clause:

Plaintiff seeks, inter alia, internally prepared documents
concerning "the Committee's investigation techniques and
methods during the medicare supplemental and cancer in-
surance investigation;" Attachment to Plaintiff's Subpoena
| 15(c); "complaints" received by the Select Committee con-
cerning abusive and fraudulent sales practices, | 15(a); and
correspondence between the Select Committee and other
legislative and executive branch agencies contacted during
the investigation. | 15

The plaintiff's request for these materials intrudes upon
the very core of the legislative process, and thus the very
center of the zone protected from questioning by the
Speech or Debate Clause, for the Court has held that the
investigative function reflected in the records inheres in
the legislative authority vested in Congress. McGrain v.
Daugherty, 273 U.S. 135 (1927); Watkins v. United States,
354 U.S. 178 (1957):

The power of inquiry-with process to enforce it—is an essential and appropriate auxiliary to the legislative function ... a legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information-which not infrequently is true-recourse must be had to others who do possess it.

McGrain, supra at 174-175. (Id. at 9] The Select Committee did state that it had no constitutional objection to providing documents which evidenced dissemination, or arrangements to disseminate, to those outside Congress.

StatusThe case is pending in the U.S. District Court for the District of Maryland and the U.S. Court of Appeals for the Fourth Circuit.

The complete text of the November 14, 1980 memorandum of the district court is printed in the “Decisions” section of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981.

The complete text of the June 17, 1981 opinion of the circuit court is printed in the “Decisions” section of Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1981.

The complete texts of the December 22, 1982 and January 31, 1983 memorandum decisions of the district court are printed in the “Decisions” section of this report at pages 574 and 588 respectively. Brown v. American Broadcasting Companies, Inc.

Nos. 82-1192(L) and 82-1236 (4th Cir.) On January 22, 1981, Glenda C. Brown, an independent insurance agent formerly employed by the Bankers Life and Casualt Insurance Company of Chicago, filed suit in the U.S. District Court for the District of Maryland (Civil Action No. N-81-127] against the American Broadcasting Companies, Inc. ("ABC"); Roone Arledge, Av Westin, and Margaret Osmer-McQuade, ABC executives and employees; Herbert S. Denenberg; and Kathleen T. Gardner, David L. Holton, Margaret Dixon, Val J. Halamandaris and Robert Weiner, five present and former employees of the Select Committee on Aging of the U.S. House of Representatives. The five count complaint charged the defendants with conspiracy, defamation, invasion of privacy, interference with a business relationship, and violation of the Federal eavesdropping statute arising from the Select Committee's investigation into abuses in the sale of health insurance to the elderly. The action was based on a November 2, 1978 meeting arranged by the Congressional defendants at Mr. Holton's house at which Ms. Brown presented certain health insurance information to defendant Gardner and her "mother-in-law”, defendant Dixon. Ms. Brown did not know that those involved were Committee employees; nor did she know that the meeting was secretly recorded by ABC for subsequent broadcast on its “World News Tonight” programs of November 27 and 29, 1978.

Specifically, Count I of the complaint charged that all the named defendants had entered into a "criminal and civil conspiracy" with "malice and with wanton, reckless and complete indifference to the grave financial and other injury to Brown and her well established good reputation as an Independent Agent for the sale of supplemental health insurance and other insurance." (Complaint and Demand for Jury Trial, January 22, 1981, | 17] Count II alleged a violation of the Federal eavesdropping statute (18 U.S.C. $$ 2510 et seq.) in that the defendants had utilized the product of unlawful electronic surveillance." [Id., 1 18] Count III asserted that the defendants had “interfered with Brown's right to pursue a lawful insurance business" by implementing their "scheme" and causing subsequent adverse publicity. (Id., 1 1 19, 20) Count IV averred an invasion of the plaintiff's right of privacy since the "use of Brown's words and picture ... was without her knowledge or consent ... and by reason of such nationwide publication, Brown was held up to public ridicule.”[Id., 1 22] Finally, Count V charged that the ABC broadcasts were defamatory, and had been edited to place Ms. Brown in a “false light and to create a false impression.” (Id., f 29) The complaint sought $150,000 in compensatory damages and $3,000,000 in punitive damages on each count.

(This case set forth substantially the same allegations, against several of the same defendants, as Benford u. American Broadcasting Companies, Inc. which is discussed on page 203 of this report.)

On April 14, 1981, defendant Denenberg moved to have the case dismissed because the court lacked personal jurisdiction over him. Mr. Denenberg, who was then living and working in Pennsylvania, argued that neither Maryland law nor the Due Process Clause of the U.S. Constitution would permit the court to assert jurisdiction, and that the nationwide broadcast of the ABC programs did not provide a sufficient basis on which to do so.

On April 23, 1981, the plaintiff filed an opposition to Mr. Denenberg's motion, contending that Maryland law did provide for the assertion of jurisdiction over him and that such an assertion was not barred on constitutional grounds. According to the plaintiff, there was no constitutional requirement that a trial be held in the forum with the "best" contacts with the defendant, only a requirement that there be "minimum" contacts between the defendant and the forum state.

On June 1, 1981, defendants Arledge, Westin and OsmerMcQuade filed a motion to dismiss the complaint on the grounds that: (1) the court lacked personal jurisdiction over them in that none of the defendants had the requisite minimum contacts with Maryland to satisfy the requirements of the State long-arm statute or of due process (since no specific acts complained of by the plaintiff took place in the state, whereas nearly all the alleged acts took place in Virginia); (2) venue was improper; and (3) service of process was insufficient under both the Federal Rules of Civil Procedure and the Maryland Rules of Procedure.

Also on June 1, 1981, defendant ABC filed a motion to dismiss the complaint on the ground that venue was improper. Because, according to ABC, both diversity of citizenship and a Federal question (i.e., violation of a Federal statute) provided the basis for Federal court jurisdiction in the case and because all the defendants did not reside in any single judicial district, ABC argued that the plaintiff could only bring the action in the judicial district where the “claim arose”. (28 U.S.C. § 1391(b)) In light of the fact that the gravamen of the plaintiff's complaint centered on a conspiracy, the alleged overt acts of which took place in Virginia, ABC insisted that the claim did not arise in Maryland and venue therefore did not lie in the Maryland court.

On June 10, 1981, Chief U.S. District Judge Edward S. Northrop approved a stipulation and order granting the Congressional defendants 60 days after the service of the summons and complaint upon all of them to file a consolidated answer or other responsive pleading

On June 18, 1981, the plaintiff filed answers and memoranda in opposition to the motions to dismiss of the ABC employees and ABC itself. With respect to venue, the plaintiff maintained that jurisdiction was based solely on diversity of citizenship and that, therefore, under 28 U.S.C. § 1391(a), the case could be brought either where the claim arose or where she resided. Moreover, the plaintiff noted, Maryland was in fact more geographically convenient for the parties and use of the Maryland forum would not prej. udice any of the parties' substantive rights, particularly in view of the fact that several of the defendants were already within the jurisdiction of the court as party defendants in the Benford case.

With respect to the "minimum contracts" argument of the ABC employees, the plaintiff asserted that because the ABC "World News Tonight" programs were broadcast nationally, including Maryland, such broadcasts constituted purposeful activity within the state, thereby invoking the “benefits and privileges” of the state.

On July 28, 1981, the ABC employees filed a reply memorandum reiterating their contention that the plaintiff had failed to allege any jurisdictional facts which would bring them within the reach of any provision of the Maryland long-arm statute.

On August 3, 1981, Judge Northrop approved a stipulation further extending the time by which the Congressional defendants had to file their consolidated answer or other responsive pleading until 60 days after the Supreme Court either denied the petition for a writ of certiorari in the Benford case or granted the writ and issued its final mandate.

On August 14, 1981, a hearing was held on the defendants' motions to dismiss the complaint. On August 18, Judge Northrop filed a stipulation and order dismissing the case against defendants Arledge and Westin. On August 19, the judge signed an order denying the motions of defendants ABC, Osmer-McQuade, and Denenberg to dismiss and transferring the case to the U.S. District Court for the Eastern District of Virginia. (Civil Action No. 81-0871-A)

On October 5, 1981, in the Virginia court, defendant Denenberg filed a new motion to dismiss the complaint claiming once again lack of personal jurisdiction over him.

On October 15, 1981, the plaintiff and defendants ABC, OsmerMcQuade, and Denenberg filed a joint motion to stay proceedings in the case (with the exception of the latter's motion to dismiss) until the Congressional defendants were required to file an answer or other responsive pleading. Noting that there was a common core of factual allegations between the instant case and the Benford case, the parties argued that judicial economy would be served by not proceeding until the Congressional defendants' Speech or Debate Clause i claims in Benford were resolved and the resulting implications became clear.

On October 23, 1981, following a hearing, U.S. District Judge Albert V. Bryan, Jr. issued an order: (1) denying the parties' joint motion for a stay; (2) vacating the August 3rd stipulation and directing the Congressional defendants to file their answer to the complaint within 30 days; and (3) granting defendant Denenberg's motion to dismiss with respect to Counts II, III, IV, and V, and denying it with respect to Count I (conspiracy).

1 The Speech or Debate Clause of the U.S. Constitution provides that "for any Speech or Debate in either House, (U.S. Senators and U.S. Representatives) shall not be questioned in any other Place.” (art. I, 96, cl. 1]

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