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a judicial or quasi-judicial proceeding and was therefore absolutely privileged under North Carolina law. In the defendant's view, communications made to the appointing power (i.e., the President and elected officials) regarding the character and qualifications of a candidate for a public office such as U.S. Attorney were entitled to the same absolute protection as afforded communications made in a judicial proceeding. He explained:

The defendant submits that he has a constitutionally protected right and duty to petition government in the matter of qualifications of an aspirant to this position of United States Attorney. United States Constitution, Amendment 1, Amendment 14; California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 242 (1972). The entire nomination process for a United States Attorney, including application, selection with the advice of the Senate, nomination, and confirmation by the Senate, is certainly a judicial or quasi-judicial proceeding in which the persons involved must necessarily exercise quasi-judicial functions. That is, as construed by the North Carolina Court of Appeals in Angel v. Ward, [43 N.C. 288, 258 S.E.2d 788 (1979)], the persons involved in this nomination process are "required to investigate facts, or ascertain the existence of facts, and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature.”Certainly, if the actions by a supervisor of an IRS agent in compiling a file in support of termination of the agent is considered, as a matter of law, to be a quasi-judicial function, then so must the entire scope of proceedings incident to nomination of United States Attorney also be considered a judicial or quasi-judicial proceeding.

The defendant submits that, by the very nature of the proceeding and his position as a taxpayer and citizen of the United States, any communication on the qualifications of an applicant for this position to the President of the United States, elected officials, or administrative officials charged with the duty of investigation must necessarily, as a matter of policy, be absolutely privileged. To hold otherwise would violate the confidentiality of the selection process, discourage input or response from persons concerning the fitness of candidates for these positions, and subject those involved in the process to civil liability by any disappointed aspirant. (Defendant's Brief in Support of

Rule 12(b)(6) Motion to Dismiss, September 24, 1981, at 7] On October 2, 1981, the plaintiff filed a motion to remand the case to the state court and a supporting memorandum.

On October 14, 1981, the plaintiff filed a brief in opposition to the defendant's motion to dismiss the complaint. In sum, the plaintiff argued that: (1) the communications involved in the case were not sent to any properly constituted quasi-judicial board as that term was defined by North Carolina law; (2) although the letters might have eventually reached the only body legally authorized to decide the plaintiff's qualifications (i.e., the Senate Judiciary Committee), they were sent to and read by many other persons; and (3) there was no showing that what was said in the letters was necessary for the protection of the judicial process, a sine qua non for the protection of privilege, since the purported libel was “not a part of the proceedings of any quasi-judicial body or board that was at the time exercising its duties as a quasi-judicial board, nor was it in response to a request to comment on a matter before an official board, as was the case in Angel v. Ward, supra." [Brief in Opposition to Motion to Dismiss, October 14, 1981, at 7] Since the libelous communications were made to other than a properly constituted board, the plaintiff continued, they lost their claim to absolute privilege; statements made to public authorities (as opposed to a properly constituted board) were eligible at most for only a conditional or qualified privilege. And, the plaintiff concluded, such a qualified privilege could be overcome by a showing of malice, as alleged in the complaint.

On October 21, 1981, the defendant filed an opposition to the plaintiff's motion to remand the case to the state court.

On March 19, 1982, District Judge Eugene A. Gordon issued a memorandum and order denying both the plaintiff's motion to remand the case to State court and the defendant's motion to dismiss the complaint. On the first issue, Judge Gordon concluded that the defendant had established domicile in Virginia prior to the time that suit was filed against him in the North Carolina State court and therefore the case had properly been removed to Federal court based on diversity of citizenship. On the second issue, Judge Gordon ruled that only a qualified privilege attached to communications made to an appointing power, and under North Carolina law the defense of qualified privilege could be lost if the publication of libelous matter was made with actual malice. Since the plaintiff had alleged that the two letters sent to Mr. Reagan were written with malicious intent, the judge held that dismissal would therefore be inappropriate at that point.

On July 9, 1982, the defendant filed his answer to the complaint, a motion for a judgment on the pleadings, and a supporting memorandum. In his memorandum, the defendant argued first that the Petition Clause of the First Amendment prohibited the imposition of liability for communications to Federal officials concerning prospective nominees for Federal office, even if made out of ill-will or spite and even when the statements at issue were knowingly false or made in reckless disregard of truth or falsity. In the defendant's view, the right to petition was “a special freedom entitled to even greater protection than that accorded to speech generally." (Defendant's Memorandum in Support of Motion for Judgment on the Pleadings, July 9, 1982, at 6] The privilege inherent in the right to petition, the defendant continued, was recognized in the case law and supported by the governmental and private interests underlying the Petition Clause:

The constitutional privilege recognized in these cases is firmly rooted in the principles of representative democra

* The Petition Clause of the First Amendment to the U.S. Constitution provides that "Con. gress shall make no law . . . abridging ... the right of the people ... to petition the Government for a redress of grievances.”

cy. Citizens have a compelling interest, which is separate
and distinct from their interest in speech, in being able to
communicate freely with government officials regarding
their grievances and their passionately-held views on mat-
ters of public concern. Government has an equally compel-
ling interest in receiving citizen communications, in order
to remain responsive to popular concerns and to obtain in-
formation relevant to the enactment and execution of
laws. These interests cannot adequately be served by
either the common law privilege for statements not made
with ill-will or spite, or by the Speech Clause privilege for
statements which are neither knowingly false nor made in
reckless disregard of their truth or falsity. The private and
public interests involved are in fact greatest when the citi-
zen's views are passionate and deeply held; and the possi-
bility of having to defend an extended damages suit, with
the attendant risk, legal expense and inconvenience, is suf-
ficient to pose unacceptable dangers of self-censorship and
to impair the free channels of communication between citi-

zen and government. (Id. at 24] Finally, the defendant maintained, “the right of petition . . . is far more ancient than the right of speech, deriving from the earliest days of British constitutional history." [Id. at 7] This ancient lineage, he said, required that “special protections be afforded to petitioning activity, above and beyond the protections accorded to other forms of speech." [Id. at 25] Accordingly, the defendant urged the court to support an absolute privilege for petitioning activity against liability for defamation.

If the court ruled that the Petition Clause by itself did not provide a privilege for communications with government officials, the defendant next argued that the court should still grant his motion for a judgment on the pleadings because of the "additional constitutionally protected interests implicated by the special circumstances of this case." [Id. at 27] Specifically, the defendant pointed to the governmental and private interests implicated by the Appointments Clause 2 and the Speech or Debate Clause. 3

Initially, the defendant contended that special protection should be provided for communications regarding the qualifications of candidates for those offices requiring nomination by the President and confirmation by the Senate under the Appointments Clause (such as U.S. Attorney). Without such protection, the defendant reasoned, the President and the Senate might not obtain complete information on prospective nominees and therefore could not adequately fulfill their constitutional responsibilities on appointment. The defendant argued:

2 The Appointments Clause of the U.S. Constitution provides:

[The President) shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law; but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the Presi

dent alone, in the Courts of Law, or in the Heads of Departments. (art. II, § 2, cl. 2] 3 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, § 6, cl. 1]

The communications alleged to be defamatory in the present case were highly relevant to the plaintiff's qualifications—both ethical and professional-for the position he sought. These communications were made to individuals whom defendant could reasonably expect would play a substantial role in the executive and legislative branch consideration of the possible nomination. In light of the importance of the appointment process, and the relevance of defendant's communications to that process, in the special circumstances of this case, the Court should recognize a privilege to communicate to federal officials who could reasonably be expected to play a role in the process, even if the communication was made out of ill-will or spite, and even if the defendant's statements were knowingly false or

made in reckless disregard of truth or falsity. (Id. at 30-31] Additionally, said the defendant, the common law legislative privilege and the Speech or Debate Clause provided further reasons to grant the motion for a judgment on the pleadings given the special circumstances of this case:

The common law has traditionally recognized a privilege for communications preliminary to legislative proceedings. The common law privilege is absolute, applying even to communications which are knowingly false and malicious. Restatement (Second) of Torts § 590A (1977). The Privilege is designed to remove all barriers to the free flow of information to elected representatives. It applies to communications which are volunteered as well as to those which are solicited, and it applies to preliminary communications occurring prior to any formal proceedings as well as to communications made while a proceeding is in progress, so long as the communication relates in some way to a valid legislative matter.

The policies underlying this common law privilege apply a fortiori to communications to the U.S. Congress. In the context of communications to Congress, the common law privilege has constitutional overtones deriving from the Speech or Debate Clause (as well as the Petition Clause, discussed supra). Recent cases arising under the Speech or Debate Clause have emphasized the importance of Congress' information-gathering functions, and have recognized that they are often carried out through informal as

well as formal means. (Id. at 31] Finally, the defendant argued, the countervailing interest in protecting the plaintiff's reputation was considerably less substantial on the facts of this case than in a typical defamation action since the plaintiff voluntarily placed his reputation at issue by seeking the position of U.S. Attorney. Moreover, the defendant maintained, the state interest in protecting the reputation of its citizens was considerably less substantial when the allegedly defamatory communications were made to Federal officials concerning the plaintiff's qualifications for a Federal position.

On August 19, 1982, the plaintiff filed a brief in opposition to the defendant's motion for a judgment on the pleadings. In it he rejected the defendant's arguments that the Speech or Debate Clause, the common law doctrine of legislative privilege, the Appointments Clause, and/or the First Amendment right to petition conferred on a private citizen an absolute immunity

with respect to unsolicited letters containing malicious and deliberately false statements about a candidate for appointment to Federal office.

The Speech or Debate Clause, the plaintiff asserted, provided immunity to Federal legislators and their aides only, and could not be invoked by a private citizen. In short, the plaintiff asserted, the Clause “is simply not implicated in the situation before this court as reflected by the pleadings." [Brief for Plaintiff in Opposition to Defendant's Motion for Judgment on the Pleadings, August 19, 1982, at 9) Similarly, the plaintiff insisted, the common law doctrine of absolute legislative immunity was not available to the defendant because his allegedly defamatory statements were not made as a witness in a legislative proceeding:

[T]he court herein has already determined that the letters
of defendant were not submitted in connection with a judi-
cial or quasi-judicial proceeding (March 19, 1982 Mem. Op.
at p. 6), and it cannot seriously be contended that the
United States Senate exercises a judicial or quasi-judicial
function in giving its “advice and consent" to the Presi-
dent concerning prospective appointees to the position of
the United States attorney pursuant to Article 2, § 2, cl. 2

of the Constitution and 28 U.S.C. § 541(a). (Id. at 13] At best, said the plaintiff, under the facts of this case the defendant would only be able to assert a qualified or conditional immunity which would be vitiated by a showing of actual malice-a disputed question of fact which could not be resolved in a motion for a judgment on the pleadings.

Turning to the defendant's Appointments Clause argument, the plaintiff asserted that it was unsupported by the case law, and unwarranted as a matter of policy. He reasoned:

Defendant's assertion that the public interest will be served by creation of an absolute immunity under the Appointments Clause to encourage "uninhibited input" on the part of the citizenry (Defendant's brief at p. 30, f.n. 36) is highly suspect. The end result of any such privilege would be that a person utterly indifferent to the public interest, to settle some self-perceived private grievance, could maliciously and with impunity destroy the reputation and livelihood of an individual interested in serving his country and the public in federal office under the guise of purporting to comment upon the candidate's qualifications for office. Under such circumstances, it is quite possible that qualified and public-minded persons would be discouraged from ever seeking or exploring the possibility of appointment to federal office since in so doing, these indi

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