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he intervened to obtain the dissolution of the temporary restraining order that prevented the FTC from sending requested documents to his committee, and to oppose any temporary or permanent injunction that Ashland Oil might have sought to prevent the transfer of the documents for a longer period. Moreover, although special counsel was authorized in H.R. Res. 899, that was not the sole purpose of the resolution; it is clear that the resolution was submitted and passed because the Congressman himself stated that he needed such authorization. See, e.g., H.R. Rep. No. 94-756 at 20-21. Neither the resolution nor the accompanying report provide any basis to support the view that under the House rules authorization is required
only when special counsel is to be retained. [Slip Opinion at 3069.] In conclusion the panel stated:
Thus based on the practice in the House of Representatives, as revealed by Congressman Moss's actions in the Ashland Oil case, it is apparent that Rule XI, cl. 2(m)(2)(B) requires House authorization not only for direct enforcement of a subpoena but also in any instance when a House committee seeks to institute or to intervene in litigation and, of course, to appeal from a court decision, particularly when the purpose is, as here, to obtain the effectuation of a subpoena. Congressman Smith and Moss failed to obtain a House resolution or any other similar authority before they sought to intervene in the beef industry case. If every subcommittee of the Congress is to have inherent authority to intervene in pending suits, to file motions in litigation throughout the nation and to prosecute appeals from district court decisions, a general grant of authority by statute or resolution would appear appropriate. In the absence either of such a general authorization or specific authorization for the actions here taken, the motion to dismiss the appeal is granted.5
5 In view of our disposition of the case, we need not consider, sua sponte, the question of the mootness of the congressional subpoenas. Since the 95th Congress has adjourned, the subpoenas may no longer be in force. See Eastland v. United States Servicemen's Fund, 1975, 421 U.S. 491, 512, 95 S. Ct. 1813, 1826, 44 L. Ed. 2d 324, 341. Neither need we consider the validity of the technical objection that, in filing the appeal, the chairmen appeared to act individually and not in their official capacities on behalf of their committees. For the purpose of this opinion, we have assumed, without deciding, that Congressmen Smith and Moss are
acting on behalf of their respective committees. [Slip Opinion at 3069.]
Status.—The case has been closed.
The memorandum opinion of the District Court is printed in the “Decisions” section of Court Proceedings and Actions of Vital Interest to the Congress, Part 5, September 15, 1978.
The complete text of the opinion of the Court of Appeals is printed in the “Decisions” section of Court Proceedings and Actions of Vital Interest to the Congress, March 31, 1979. United States v. Kim
Cr. No. 79-180 (D.D.C.)
On September 27, 1977 Hancho C. Kim was indicated in the District of Columbia for testifying falsely before the District of Columbia grand jury and for conspiring to improperly influence the Congress. Before he could be tried on these charges, Mr. Kim was subpoenaed to testify before the House Committee on Standards of Official Conduct. During November, 1977, Mr. Kim testified before the committee on four occasions.
On April 18, 1978, defendant Kim was found guilty of the perjury and conspiracy charges. Specifically, the jury found that Mr. Kim had lied when he denied that he had received $600,000 from Sang Keun Kim, a Korean Central Intelligence Agent.
On May 15, 1978, four days prior to sentencing, Mr. Kim was recalled to testify before the committee. Pursuant to 18 U.S.C. $ 6002, the committee had obtained a court order granting Mr. Kim immunity for his testimony. The order stated “that no testimony or other information compelled under this Order may be used against [Hancho C. Kim] in any criminal case, except a prosecution for perjury, giving a false statement, or failing to comply with this Order.” Dispite the grant of immunity, Mr. Kim refused, on selfincrimination grounds, to answer the single question asked at the May 15, Hearing, to wit: "Did there come a time when you received money from Sang Kuen Kim?” When on May 18, 1979 Mr. Kim again appeared before the committee and again refused to answer that question, a committee report recommending that Hancho C. Kim be cited for Contempt of Congress was certified by the House of Representatives to the United States Attorney. On April 10, 1979, Mr. Kim was indicated for Contempt of Congress under 2 U.S.C. $$ 192, 194.
In his first Motion to Dismiss the indictment, filed on May 24, 1979, Mr. Kim argued that the committee's question violated the existing immunity order by placing him in an untenable position. He could not and did not admit to accepting money because he
did not believe that answer to be truthful and was unwilling to lie under oath to satisfy The Special Staff.” (United States v. Kim, Cr. No. 79-180 (D.D.C.) first Motion to Dismiss at 14). Likewise, he could not deny having accepted the money because the Special Staff had made it clear to him that if he answered in the negative, his answer would be brought to the attention of the District Court before which he was awaiting sentencing on the perjury conviction. Since the jury in that case had determined that Mr. Kim perjured himself when he told the grand jury that he had not accepted money from Sang Kuen Kim, a second denial before the committee could influence the sentencing court to impose a sterner sentence on him.
In opposing the motion to dismiss the Government responded that Mr. Kim's refusal to answer the committee's question was unjustified in that it was based upon Mr. Kim's fear of what the committee might do with his answer. In this regard the Government quoted a statement made by the committee counsel to Mr. Kim at the May 18, 1979 hearing:
I must say to you quite frankly that I don't know whether
to Dismiss at 4.] The Government argued that because counsel's response reflected uncertainty as to what actions, if any, the committee might take, Mr. Kim should have answered the question. Had his response been used against him to his disadvantage he could attack such use at a later proceeding. In essence, said the Government, the present controversy is not ripe for adjudication.
On June 15, 1979 U.S. District Court Judge John Lewis Smith, Jr. granted Mr. Kim's May 24 motion to dismiss. In ruling that Mr. Kim was entitled to assert his constitutional privilege by refusing to answer the specific question posed by the committee, the court stated:
The fact that a witness may be prosecuted for perjury has been repeatedly found to be an insufficient basis for refusing to testify on Fifth Amendment grounds after a Court has ordered immunity under $ 6002. See United States v. Berardelli, 565 F.2d 24 (2nd Cir. 1977); United States v. Frumento, 552 F. 2d 534 (3rd Cir. 1977). However, present in the instant case is the unique fact that there was a pending criminal proceeding against Kim in which a jury found beyond a reasonable doubt that Kim's previous answer of “no” to the question asked by the Committee was perjurious. Thus, the grant of immunity under the statute afforded Kim insufficient protection against use of his answer in the pending criminal proceeding for perjury. It was not "coextensive with the scope of [his] privilege against self-incrimination" and could have resulted in the 'inflection of criminal penalties.' United States v. Kastigar,
406 U.S. 441, 453 (1972). [Slip Opinion at 3.] Citing New Jersey v. Portash, 440, U.S. 450, 47 U.S.L.W. 4271 (March 20, 1979), the court also found that it was not necessary for Mr. Kim to have testified before the committee in order to seek dismissal of the indictment for violations of his Fifth Amendment privilege.
Status.—The case is closed.
OTHER ACTIONS OF INTEREST
Lewis v. Chisholm
No. 79-1153 (D.C. Cir.) O’Dell Lewis, a former legislative assistant to Representative Shirley Chisholm, filed this suit along with Lewis' ex-wife Judy Ann Lewis in the United States District Court for the District of Columbia on February 3, 1978. Named as defendants are Congresswoman Shirley Chisholm; Carolyn J. Smith, Representative Chisholm's administrative assistant; Muriel Morrissey, chief legislative assistant to Congresswoman Chisholm; and Colleen O'Connor, press secretary to Representative Chisholm during the period of Mr. Lewis' employment with Congresswoman Chisholm.
The complaint states five causes of action. The first cause of action is a breach of contract claim charging defendants with employment discrimination based on sex in violation of the House Fair Employment Practices Agreement by discharging Lewis because of his sex, the second cause of action alleges employment discrimination based on sex in violation of the Fifth Amendment to the Constitution. The third cause of action is one of injurious falsehood, claiming that Ms. Smith submitted a false statement to the U.S. Department of Labor to the detriment of Mr. and Mrs. Lewis.
The fourth cause of action alleges interference with a prospective advantage and defamation on the basis of a letter allegedly sent by Representative Chisholm to a prospective employer of Mr. Lewis. The final cause of action is a claim of libel and slander based on statements allegedly made to a reporter for the New York Post and printed in that newspaper.
The complaint seeks $50,000 in compensatory damages, $500,000 in punitive damages and an order prohibiting defendants from making statements concerning the plaintiffs.
Defendants Chisholm, Smith and O'Connor filed an answer on February 23, 1978. Included in the answer was a counterclaim by defendant Smith for compensatory and punitive damages in the amount of $250,000. The counterclaim alleges that Mr. Lewis' claim against Ms. Smith is spurious, malicious and brought in bad faith solely for the purpose of harassing defendant Smith. Defendant Morrissey also filed an answer on February 27, 1978.
On March 8, 1978, plaintiffs filed an answer to Ms. Smith's counterclaim.
On October 17, 1978 the defendants filed a motion to dismiss in which they argued that an action for money damages could not be brought under the due process clause of the Fifth Amendment. In support of this contention the defendants cited the Fifth Circuit's opinion in Davis v. Passman, 571 F.2d 793 (1978) (en banc). The District Court agreed, and on November 29, 1978 the complaint was dismissed.
On June 22, 1979 the plaintiffs filed a motion for summary reversal with the U.S. Court of Appeals for the District of Columbia Circuit. The defendants cited the U.S. Supreme Court opinion in Davis v. Passman, 442 U.S. 228 (1979), wherein the decision of the Fifth Circuit was reversed.
On August 24, 1979 defendant Morissey consented to the plaintiffs' motion for summary reversal.
Status. The case is pending in the U.S. Court of Appeals for the District of Columbia Circuit.
The order of the District Court is printed in the "Decisions" section of the report Court Proceedings and Actions of Vital Interest to the Congress, current to December 31, 1978. Trible v. Brown
No. 79-1228 (Fourth Cir.)
On March 23, 1979, Congressman Paul S. Trible, a member of the House Armed Services Committee, filed a complaint for a declaratory judgment and injunction in the United States Court for the Eastern District of Virginia. The complaint named as the defendants, Harold Brown as Secretary of the Department of Defense, and W. Graham Clayton, Jr. as Secretary of the Department of the Navy.
The substance of the complaint was as follows: The Navy has begun planning two programs by which it hopes to modernize and overhaul certain naval vessels. These programs have been designated as the carrier Service Life Extension Program ("SLEP') and the DDG-2 class guided missile destroyer modernization program. Under each program the majority of the actual work of overhauling and modernizing is to be done in naval shipyards, as opposed to private shipyards. However, the Senate Armed Services Committee, in its report on the Fiscal Year 1978 Defense Appropriation Authorization bill, requested that the Secretary of the Navy justify his decision to assign the work to naval shipyards and asked that he provide a cost comparison study of in-house versus private contractor costs. In attempting to comply with the request, the Secretary of the Navy submitted a study to the House and Senate Armed Services Committees and the House and Senate Appropriation Committees. After reviewing the study, the plaintiff and other members of the House Armed Services Committee advised the Secretary of the Navy that the study lacked essential information and was therefore inadequate. At this point the plaintiff introduced a provision which was enacted as Section 811 of the Department of Defense Appropriation Authorization Act of 1979, Public Law 95-485. Section 811 provides in full:
Sec. 811. (a) Notwithstanding any other provision of law and except as provided in subsection (b), the Secretary of the Navy may not take any action with respect to the use of either public shipyards or private shipyards for conversion, overhaul, or repair work under the Service Life Extension Program (SLEP) or under the program for the modernization of DDG-2 class guided missile destroyers, or for the employment of additional personnel for, or the transfer of additional personnel to, any public shipyard as