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Discovery subsequently began in the case, including requests for admissions and the production of documents served on certain of the Congressional defendants and a notice of deposition served on the Clerk of the House.

On November 13, 1981, the plaintiff filed a motion to amend the complaint to allege violations of Virginia law. After a hearing one week later, Judge Bryan denied the motion as untimely, particularly since the requested amendment might have injected new issues into the case.

On November 25, 1981, the Congressional defendants filed their answer to the complaint, asserting as defenses that: (1) the action was barred against them by the Speech or Debate Clause; (2) the complaint failed to state a claim upon which relief could be granted; (3) the action was barred by the applicable statutes of limitations; (4) the Congressional defendants were protected for their acts by the doctrines of absolute official immunity and qualified official immunity; (5) the plaintiff had suffered no injury because of their acts and was entitled to no relief; (6) they had made no false or defamatory statements; (7) the action was barred by the doctrines of waiver and estoppel; (8) the court lacked jurisdiction over the subject matter of the suit; (9) Count I failed to state a compensable claim for civil conspiracy because there was no combination of two or more persons to accomplish an unlawful object or a lawful object by unlawful means; (10) the complaint did not state a cause of action under 18 U.S.C. $$ 2510 et seq. insofar as it alleged a recording of the plaintiff's likeness on videotape and film, because there was no interception of any "oral communication" as the term was defined in the statute, and because any electronic interception was undertaken with the prior consent of one or more of the parties to the alleged conversations; and (11) Count IV failed to state a cause of action under the common law or statutory law of Virginia.

On November 27, 1981, defendants ABC and Osmer-McQuade filed a motion for summary judgment and a supporting memorandum based on four arguments. First, they contended, the complaint was barred by the statute of limitations of the forum state, Virginia. In this case, the ABC defendants maintained, a one-year statute of limitations applied from the date of the accrual of the plaintiff's causes of actions (i.e., in November 1978) because the alleged injuries were not physical (requiring a two year statute of limitations) or to property (requiring five years). According to the defendants, even the allegation of damaged reputation, and concomitant loss of potential business, did not involve a cognizable property right under Virginia law.

Second, the ABC defendants maintained, the plaintiff's complaint failed to state a claim upon which relief could be granted. With respect to the conspiracy count, they pointed out that their actions did not meet the standard of Virginia law, in particular because they were at no time acting to “accomplish an unlawful purpose.” As to the alleged violation of the Federal eavesdropping statute, the ABC defendants argued that the plaintiff's claims did not come within 18 U.S.C. $$ 2510 et seq. because the sections only applied to interception of oral and wire communications (and not to someone's "likeness" being recorded and later broadcast on television), and, in any event, because Congressional defendants Gardner

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and Dixon had consented to the recording of their conversations with the plaintiff as specifically allowed by the statute. With respect to the interference with business and invasion of privacy counts, the ABC defendants asserted that they were not cognizable under Virginia law. Finally, as to the defamation count, the defendants argued that they were entitled to a qualified "publisher's privilege” under common law, since the broadcasts were made in good faith and without malice.

Third, the ABC defendants contended, they were entitled to summary judgment because all the acts allegedly done by them were privileged under the First and Fourteenth Amendments' guarantees of freedom of speech and of the press.

Fourth, the supporting memorandum argued that the court lacked personal jurisdiction over defendant Osmer-McQuade because she had not had the minimum contacts with Virginia necessary for the exercise of jurisdiction and the requirements of the state's long-arm statute had not been met.

On November 30, 1981, defendant Denenberg filed a motion for summary judgment on the one count of the complaint-alleging a conspiracy-remaining against him. In an accompanying memorandum and affidavit he stated that he knew nothing of the alleged surveillance or broadcast and did not agree with any of the other defendants to participate in either, and claimed as well that his involvement with the Select Committee was limited to testimony he gave under subpoena.

On December 1, 1981, the Congressional defendants filed their motion for summary judgment asserting that: (1) the complaint was barred by the applicable statute of limitations; (2) their conduct was absolutely privileged under the Speech or Debate Clause and the doctrine of legislative immunity; (3) their conduct was privileged under the doctrines of official and qualified immunity; and (4) the complaint failed to state a claim upon which relief could be granted.

In a supporting memorandum, the Congressional defendants addressed each of these contentions in turn. With respect to the statute of limitations issue and the question of whether the complaint properly stated a claim upon which relief could be granted, they adopted the arguments of the ABC defendants and simply referenced the ABC summary judgment memorandum. (See supra, page 233.)

Turning to the question of Speech or Debate Clause immunity, the Congressional defendants argued that in Eastland v. United States Servicemen's Fund, 421 U.S. 491, 503 (1975) the Supreme Court had held that “once it is determined that Members (and aides) are acting within the 'legitimate legislative sphere' the . Clause is an absolute bar to interference.” They also noted that the Court had repeatedly ruled that the protections of the Clause adhered to the actions of Congressional staff aides as well as to the Members themselves. Moreover, they argued, the Clause had traditionally been construed broadly, and clearly would reach the kind of investigative activity at issue in this case:

As the Supreme Court noted in Eastland, “The power to
investigate and to do so through compulsory process plain-

ly falls within the definition. This court has often noted that the power to investigate is inherent in the power to make laws because '[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.' Eastland, supra at 504 citing McGrain v. Daugherty, 273 U.S. 135, 175 (1927). Less formal methods of acquiring information have also been recognized as "a necessary concomitant of legislative conduct and thus should be within the ambit of the privilege. McSurely v. McClellan, 553 F.2d 1277, 1287 (D.C. Cir. 1976) (en banc), cert. dismissed as improvidently granted, 438 U.S. 189 (1978) quoting Reinstein & Silverglate Legislative Privilege and the Separation of Powers, 86 Harv. L. Rev. 1113, 1154 (1973). As the District of Columbia Circuit has held, there is “no doubt that information gathering whether by subpoena or field work by a Senator or his staff, is essential to informed deliberation over proposed legislation.” 553 F.2d at 1286.

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Congressional Defendants contend that their involvement as alleged by plaintiff and as demonstrated by the official public records of the Select Committee as well as the sworn statements of various Select committee personnel at depositions taken by the Plaintiff, represents the actions of committee aides actively engaged in the protected activity of acquiring information for the Select Committee. As such, their actions are privileged by operation of the Speech or Debate Clause as it has been applied by the judicial branch. [Congressional Defendants' Memorandum of Points and Authorities in support of Their Motion for

Summary Judgment, December 1, 1981, at 5-7] The Congressional defendants also took pains to distinguish the instant case from Benford insofar as a motion for summary judgment based on the Speech or Debate Clause was concerned:

In a recent decision in a separate civil action which has been filed in the aftermath of the Select Committee's inquiry and ABC's television coverage the Fourth Circuit has reaffirmed that "Liability may not be predicated on ‘legislative acts' performed by the Congressional Defendants." Benford v. American Broadcasting Company, No. 81–1200, June 17, 1981 (unpublished opinion at 3) (Exhibit F). In Benford the question was whether dismissal was warranted prior to any discovery. The Fourth Circuit Court of Appeals held that prior to any discovery, the record did not establish with sufficient strength to justify summary disposition that the Congressional Defendants involvement was a legislative act, but withheld that determination for determination on a motion for summary judgment factually or at trial after Congressional Defendants demonstrate that their's was legislative. In the instant case, Congressional Defendants have been open to discovery and plain

tiff has in fact taken several depositions. This discovery
demonstrates that Congressional Defendants involvement
was in furtherance of the Select Committee's objectives,
and was undertaken pursuant to good faith reliance on

proper authorization. [Id. at 6] With respect to the doctrine of official immunity, the Congressional defendants claimed that their actions were privileged in line with the Supreme Court's holding in Barr v. Matteo, 360 U.S. 564, 574 (1959) that Federal officials were protected from common law tort suits based on actions performed by them within the “'outer perimeter' of [their] line of duty." While admitting that "not all conduct in any way related to the legislative process is within the legitimate legislative sphere for purposes of the Speech or Debate Clause,” the Congressional defendants submitted that at a minimum the activities alleged in the complaint were within this "outer perimeter” of their line of duty and hence privileged. (Id. at 8]

If the court found that their actions were not within the Speech or Debate Clause or the doctrine of official immunity, the Congressional defendants argued, they were still entitled to qualified immunity from suit under Butz v. Economou, 438 U.S. 478 (1978). They reasoned:

It has been held that "inapplicability of speech or debate
protection does not foreclose [a] Representative ... from
asserting the same qualified immunity available to other
government officials.” Davis v. Passman, 544 F.2d at 881
(5th Cir. 1977).

An official is entitled to qualified immunity if he acted
in good faith and with a reasonable belief that the action
was lawful. Scheuer v. Rhodes, 416 U.S. 232, 228-239
(1974).

The affidavits and exhibits . . . establish that it was within the Congressional Defendants official duties to gather information on various informal bases as a predicate to the Select Committee's legislative functions and to disseminate information to the media. Accordingly, "the acts alleged to be tortious were within the defendant's official duties" Evans v. Wright, 582 F.2d 20, 21 (5th Cir. 1978), and require, therefore, dismissal in recognition of the qualified immunity which may be determined on a properly supported motion for summary judgment. Butz v.

Economou, supra, 438 U.S. at 508. (Id. at 9-10) On December 7, 1981, the plaintiff filed a memorandum in opposition to the motions of the defendants for summary judgment. Initially responding to the statute of limitations argument, the plaintiff insisted that her personal injury due to embarrassment, humiliation, and mental anguish was not sustained until September 1980, and it was only then that her cause of action accrued. As to the damage to her business and estate, the plaintiff asserted that that injury was covered by the five year injury to property limitation period (which did not expire until November 1983).

Focusing next on the Speech or Debate Clause defense, the plaintiff asserted that it should be rejected because there was “a material issue of fact as to whether the Congressional defendants participation in the incident at bar was essential to the legislative process.” [Memorandum of Points and Authorities . . . In Opposition to Defendants' Motion for Summary Judgment, December 7, 1981, at 7] Furthermore, the plaintiff maintained, "violation of criminal statutes, conspiracy and the commission of common law torts, including invasion of privacy are not protected by the Speech or Debate Clause.” (Id. at 8] The plaintiff also dismissed the immunity defense as inapplicable to her cause of action, and, in any event, without foundation in a case where the acts of the Congressional defendants exceeded the purview of legitimate legislative activity.

The plaintiff rejected ABC's arguments as well, arguing that a conspiracy did exist (between ABC and the Select Committee staff members); that an action for invasion of privacy was cognizable under Virginia law; that 18 U.S.C. $$ 2510 et seq. was applicable in cases where the purpose of intercepting and using an oral communication was to commit “a criminal, tortious or injurious act” (Id. at 11] and the plaintiff had an expectation of privacy; and that there was no absolute privilege for the media from invasions of privacy, tortious interference with business interests or defamation, particularly where the motives of the defendants were at issue.

On December 10, 1981, the Congressional defendants filed a reply memorandum disputing the plaintiff's assertion that there was a material issue of fact as to whether they had been properly acting within the scope of their employment for the Select Committee. The defendants insisted that the plaintiff had not produced a "single scintilla” of evidence to rebut the extensive record of the legislative nature of their actions.

On December 11, 1981, after a hearing, Judge Bryan issued an order: (1) granting the defendants' motion to dismiss Counts II (eavesdropping under 18 U.S.C. $$ 2510 et seq.), IV (invasion of privacy), and v (defamation) as barred by the applicable statute of limitations; (2) denying the defendants' motion to dismiss Counts I (conspiracy) and III business interference), although dismissing Count I to the extent that it asserted a conspiracy to injure the plaintiff's reputation; (3) denying the defendants' motions for summary judgment on Counts I and III; and (4) denying defendant Osmer-McQuade's motion to dismiss for lack of personal jurisdiction. Judge Bryan also approved a stipulation and order of dismissal, with prejudice, of the case against defendant Denenberg.

On February 8 and 9, 1982, a jury trial was held on the remaining counts of the complaint, and on February 9 the jury returned a verdict in favor of the defendants on all counts.

On February 25, 1982, the plaintiff filed a notice of appeal to the U.S. Court of Appeals for the Fourth Circuit [No. 82-1192(L)] of both the trial court verdict and Judge Bryan's interlocutory order of December 11 dismissing Counts II, IV, and V on the grounds that they were barred by the applicable statute of limitations. On March 10, 1982, the defendants filed a cross-appeal based on Judge Bryan's denial of portions of their motion for summary judgment and his denial of their motions for a directed verdict at trial. (No. 82-1236]

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