Status-The case is pending in the U.S. Court of Appeals for the Ninth Circuit. The complete text of the March 11, 1980 order of the district court is printed in the "Decisions" section of this report at page 492. In Re: IBP Confidential Business Documents Litigation M.D.L. No. 428 (N.D. Iowa) On December 4, 1980, Nicholas Wultich, a staff investigator for the Committee on Small Business of the U.S. House of Representatives; Charles Chatman, former counsel to the Subcommittee on Oversight of the Committee on Interstate and Foreign Commerce of the House; and John M. Fitzgibbons, former Special Counsel to the Small Business Committee were each served with nearly identical subpoenas duces tecum issued by the U.S. District Court for the District of Columbia. The subpoenas called for the staff members to appear and testify at a deposition and to bring with them all documents in their possession or custody relating in any manner to Iowa Beef Processors, Inc. ("IBP") or Hughes A. Bagley.1 The subpoenas were issued upon the application of counsel for IBP and called for the appearance of the deponents at a Washington, D.C. law office on December 15 and 16, 1980. On December 12, 1980, the staff members submitted a motion to stay enforcement of the subpoenas until February 1, 1981. They asserted that in order to adequately evaluate the constitutional issues raised by the subpoenas-involving the independence of Congress and the ability of its committees to fulfill their constitutional functions-a stay was essential. Messrs. Wultich, Chatman and Fitzgibbons stated that pursuant to Rule 45(d) of the Federal Rules of Civil Procedure they had served IBP with a written objection to the inspection or copying of any documents covered by the subpoenas. Under that rule, said the deponents, IBP was not entitled to inspect or copy the materials except pursuant to a court order. The staff members claimed that such inspection and copying were outside the scope of permissible discovery because the materials were the direct product of their employment with the House of Representatives. They contended that both the documentary material and their personal knowledge and recollections of IBP and Mr. Bagley were privileged from discovery by the Speech or Debate Clause and the policy of legislative independence. The staff members argued: The [Speech or Debate] clause has been read "broadly to effectuate its purposes." Eastland v. United States Servicemen's Fund, 421 U.S. 491, 501 (1975). It has been read to afford absolute protection from questioning legislative aides such as those subpoenaed here on matters within the legislative sphere, and "the Clause provides protection against civil as well as criminal actions, and against actions brought by 1 Mr. Bagley was a former vice-president of IBP who allegedly transferred confidential documents belonging to IBP to Congressional investigators in 1975. The Speech or Debate Clause of the United States 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] private individuals as well as those initiated by the Executive Committee investigatory activity is clearly within the proper sphere of the Article I functions devolved on Congress and is a necessary function of the Congress, McGrain v. Daugherty, 273 U.S. 135 (1927), and the gathering of information for legislative purposes is protected by the Speech or Debate Clause. Eastland v. United States Servicemen's Fund, supra. [Congressional Deponents Motion for Temporary Stay of Subpoena for Deposition, December 12, 1980, at 3] The staff members concluded that the subpoenas raised serious questions regarding the permissible scope of judicially compelled inquiry into the internal workings of Congress. Preparation for adequately briefing these constitutional questions, they said, was hampered by the expiration of the 96th Congress and the formation of the 97th, as well as by House Resolution 722 which required internal notification and consultative procedures prior to complying with the subpoenas. On December 12, 1980, the U.S. District Court for the Northern District of Iowa ordered a stay of the depositions. The deponents and the parties to the underlying litigation were required to submit memoranda on the legality of the subpoenas by February 2, 1981. On February 2, 1981, the staff members submitted a motion to quash and an accompanying memorandum. In the memorandum, the deponents argued, first, that the Speech or Debate Clause protected aides, as well as Members, if the conduct of the aide would be immune from scrutiny if performed by the Member. Second, the staff members argued that the prohibition against questioning legislative acts was absolute and could not be overcome, even by a showing of compelling need. Third, they argued that the Speech or Debate Clause had been held to protect information gathering activities by Members and aides because such activity was essential to legislating. Turning to the facts of the present case, the deponents claimed that the subpoenas should be quashed because all three staff members had been engaged in sensitive information gathering activities; their knowledge of IBP and Hughes A. Bagley was exclusively a product of their performance of legislative duties assigned to them by Members of Congress. Any documents in their possession, said the staff members, were papers of the House and its committees. Finally, the staff members asserted that the subpoenas were an attempt by IBP to use the process of the court to inquire into the official, non-public files and functions of Congress. They maintained that there appeared to be no conceivable question which IBP could ask them which would fall outside the legislative sphere, since the staff members sole and exclusive contact with IBP was through the committees' investigations. On February 18, 1981, IBP filed a memorandum in opposition to the motion to quash. In this memorandum IBP outlined why it deemed the requested depositions important and why the Speech or Debate Clause would not preclude the depositions from being held. First, IBP asserted that in July 1979 Mr. Bagley testified before a subcommittee of the House Small Business Committee concerning events which occurred during his employment wtih IBP during the early 1970's. In August 1979, IBP sent a letter to Rep. Neal Smith, Chairman of the Small Business Committee, in which it informed him of its belief that portions of Mr. Bagley's testimony were not true. In October 1979, Mr. Bagley filed suit against IBP, claiming that IBP's letter to Chairman Smith was defamatory. IBP then counterclaimed, asserting that Mr. Bagley had defamed IBP before the subcommittee. The depositions, argued IBP, were essential to the defamation litigation because the deponents on several occasions met with Mr. Bagley to discuss his anticipated testimony before the subcommittee, and to receive from him copies of documents which he took from IBP. IBP concluded its discussion of these factual allegations by asserting that under Gravel v. United States, 408 U.S. 606 (1972), Members and their aides are not immune if they conspire to violate the rights of private parties. Without specifically saying so, IBP implied that such a conspiracy might have occurred here. Second, IBP asserted that during the course of Mr. Bagley's testimony, committee staff members disseminated to the press a document containing both a summary of Mr. Bagley's testimony and Mr. Bagley's responses to questions posed to him by Mr. Fitzgibbons of the committee staff. After stating that under Hutchinson v. Proxmire, 443 U.S. 111 (1979) (see page 122 of this report for a discussion of that case) the voluntary republication of defamatory material is not protected by the Speech or Debate Clause, IBP asserted that Mr. Bagley recently testified that he did not know whether his answers to Mr. Fitzgibbons' questions, as contained in the document released to the press, accurately reflected his actual answers (which had been given to Mr. Fitzgibbons orally with no stenographer present). IBP argued that determining whether the committee document accurately reproduced Mr. Bagley's statements was a critical issue in the defamation case, and was not an issue protected from questioning by the Speech or Debate Clause. Third, IBP claimed that Rep. Smith pressured the Antitrust Division of the Justice Department, the Federal Trade Commission, and the Securities and Exchange Commission to investigate IBP. Since, according to IBP, Hutchinson v. Proxmire, supra, and United States v. Brewster, 408 U.S. 501 (1972) had held that follow-up communications between Congressmen (or their staffs) and Federal agencies are not covered by the Speech or Debate Clause, compelling the deponents to answer questions regarding Rep. Smith's correspondence with Federal agencies would be permissible under the Clause. IBP's final argument was that the Speech or Debate Clause could not create a personal privilege for the aides themselves. Citing Gravel v. United States, supra, IBP claimed, first, that the deponents could invoke Speech or Debate Clause immunity only after showing that a Member of Congress had authorized them to invoke the Clause and, second, that no such showing had here been made. Without such authorization, continued IBP, it would be impossible for a court to know whether the Congressmen who employed the staff members agreed with their Speech or Debate Clause contentions. Status-The case is pending in the U.S. District Court for the Northern District of Iowa. Katon v. Anderson Misc. No. 112-79 (Sup. Ct., D.C.), Civil Division Law No. 50972 (Cir. Ct., Montgomery County, Md.) Dr. Richard Katon and his firm, Richard Katon and Associates, Inc., initiated this defamation action in the Circuit Court for Montgomery County, Maryland against syndicated columnist Jack Anderson; two of his reporters; Jack Anderson Enterprises; and the Washington Star newspaper. The complaint alleged that a series of Anderson articles appearing in the Star, which related to a consulting arrangement between Dr. Katon and the National Institute of Drug Abuse, was defamatory. In connection with the Maryland action, the plaintiffs sought to take the deposition of William A. Shook, a former employee of the Subcommittee on Oversight and Investigations of the Committee on Interstate and Foreign Commerce of the U.S. House of Representatives. Mr. Shook, a non-party to the defamation suit, was nonetheless alleged by the plaintiffs to be "an important actor in the development of the defamatory stories," and the plaintiffs wished to explore his contacts on behalf of the Subcommittee with the reporterdefendants. Utilizing foreign deposition procedures, therefore, on September 24, 1979 the plaintiffs served Mr. Shook with a District of Columbia subpoena. Mr. Shook's initial deposition by plaintiffs' counsel was taken on October 12, 1979. At that deposition, on advice of Counsel to the Clerk of the House of Representatives, Mr. Shook declined to answer certain questions which were asserted to relate to his congressional duties and therefore purportedly within the protective ambit of the Speech or Debate Clause.1 On October 19, 1979, the plaintiffs filed a "Motion to Compel Answers to Deposition Questions," contending that the "claimed privilege of Congressional immunity for the testimony of all staff persons seems to be a novel one." The motion argued that the privilege had no statutory basis and "would appear to strongly violate public policy and the fair and efficient administration of justice." [Motion to Compel, October 19, 1979, at 2] On November 1, 1979, the Counsel to the Clerk filed a memorandum in opposition to the motion to compel. Counsel contended that the questions objected to were outside the scope of permissible discovery under the rules of the District of Columbia Superior Court and that therefore answers should not be compelled. "The questions to which objections were raised seek to discover, by means of a judicially enforced questioning of a congressional employee, the internal workings, substance and motivations of a legislative inquiry conducted by a subcommittee of the House of Representatives," the memorandum argued. [Points and Authorities in Opposition..., .., November 1, 1979, at 1] On November 6, 1979, the court heard oral argument on the plaintiffs' motion to compel answers to the deposition questions, and took 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, § 6, cl. 1] that case did not purport to decide the question of whether a state had the right to rescind. Lastly, the plaintiffs attempted to show that their request for mandatory injunctive relief was appropriate; such a request, they argued, drew upon the court's equity power. They contended that GSA's exercise of discretion in going forward with the amendatory process caused injury in fact by refusing to recognize the rescissions and honoring future adoptions of ERA. On September 4, 1980, the National Organization for Women ("NOW") won an appeal to the U.S. Court of Appeals for the Ninth Circuit [No. 79-4844] permitting it to appear in the action as a party defendant. The court ruled that NOW had an interest in the continued vitality of ERA which would, as a practical matter, have been significantly impaired by an adverse decision and which was incompletely represented. The appeals court decision reversed a district court order of October 10, 1979 which had denied intervention. On September 16, 1980, the 79 House members submitted a renewed motion for reconsideration of the court's denial of their motion to intervene. Referring to the ninth circuit's order permitting NOW to intervene, the House Members asserted they had an a fortiori established right to intervene as well. The Members argued that Members of Congress had an interest in the subject matter of the suit and that an adverse determination by the court would interfere with and undermine that interest: Plaintiffs have challenged Congress' power to extend the period during which states can ratify a proposed amendment to the Constitution. The success of this lawsuit would not. only nullify petitioners' votes in favor of extending the ratification period for the Equal Rights Amendment but. more importantly, would permanently impair congressional control over the amending process. [Memorandum of Points and Authorities in Support of Renewed Motion for Reconsideration of Denial of Motion to Intervene of Members of United States House of Representatives, September 16, 1980, at 3] The Members maintained that the court had never questioned the sufficiency of their interest in the case. Rather, they claimed, the court denied their request on the ground that the Justice Department, on behalf of the defendant Administrator, would adequately represent their interest. They alleged that this finding was inconsistent with the NOW decision of the ninth circuit. The Members claimed that the two issues raised by NOW on appeal to the circuit court were precisely the same issues raised by the Members before the district court. (The NOW issues were first, that there was a substantial divergence of positions between the Department of Justice and NOW as to the handling of the lawsuit. The difference of position was evidenced by the Department's decision not to pursue the issue of the court's disqualification, an issue which NOW deemed crucial not only to the outcome of the lawsuit but to the ultimate ratification of the Equal Rights Amendment. Second, NOW argued that its perspective on the issues raised by the complaint was substantially different from that of the defendant Administrator.) |