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1976).) Mr. Moreau asserted that but for fraud and irregularities he, rather than Mr. Tonry, would have been the nominee and in fact, by reason of the legal votes cast in the race, he was the nominee. The State District Court found no basis for voiding the election, but the Louisiana Court of Appeals, sitting en banc, decided to set aside the election. (Moreau v. Tonry, No. 8222 (4th Cir. of La. Oct. 21, 1976).] The State Court of Appeals decision was subsequently overturned by the Louisiana Supreme Court which reinstated the judgment of the District Court dismissing the election contest. [Moreau v. Tonry, No. 58791 (Supreme Court of Louisiana Oct. 25, 1976).]
The Louisiana Supreme Court's decision was appealed to the U.S. Supreme Court which, on March 21, 1977, dismissed the appeal for want of a properly presented Federal question. (Moreau v. Tonry, 45 U.S.L.W. 3646 (U.S. Mar. 21, 1977).]
As the election contest was progressing through the Louisiana State courts, Mr. Moreau filed suit as an elector in the U.S. District Court for the Eastern District of Louisiana for deprivation of rights under the Fourteenth Amendment to the Constitution and the Civil Rights Act of 1965. [Moreau v. Tonry No. 76-3087 (E.D. La. Oct. 7, 1976).]
Mr. Moreau sought to enjoin the Louisiana Secretary of State from recognizing Mr. Tonry as the Democratic nominee and from conducting a general election on November 2, 1976, for the 1st District House seat. The suit was dismissed "for failure to state a claim upon which relief can be granted and/or for lack of jurisdiction". [Appellants’ Brief at 3, Moreau v. Tonry, No. 74-4230 (5th Cir.).] No appeal was taken.
On October 26, 1976, Mr. Moreau and a group of his supporters filed, in the Federal District Court for the Eastern District of Louisiana, an action for deprivation of rights under Article I of the United States Constitution and the Fourteenth Amendment of the Constitution. (Moreau v. Tonry, No. 76-3290 (E.D. La. Oct. 26, 1976).]
The defendants, including Mr. Tonry, filed motions to dismiss asserting, inter alia, “that the action was either res judicata or collaterally estopped because of the dismissal of plaintiff's case[s] in State and Federal court[s]." [Id. at 4.) The District Court refused to dismiss, holding the doctrine of res judicata was not applicable and that the action was collaterally estopped as to only part of the asserted irregularities. The Defendants appealed.
As articulated by the appellants the issues presented for review by the 5th Circuit Court of Appeals were:
1. Whether the District Court has jurisdiction over election contest suits concerning elections for United States Representatives to Congress brought by electors when a State contest remedy is provided and finally adjudicated;
2. Whether the action is res judicata or is collaterally estopped because of the disposition of the issues in Louisiana State courts; and the disposition of plaintiff's previous action in Federal court;
3. Whether laches bars the assertion of a Federal cause of action to annul primary election brought so near the date of the general election that neither a new election or
appointment of a nominee under State law is an available
4. Whether mootness bars this action, in that after the
decide whom it will seat. [Id. at 1.] Oral argument was held in the action before the 5th Circuit Court of Appeals on January 26, 1977.
On April 13, 1977, the 25th Judicial District Court of the Parish of St. Bernard reopened its case. On April 21, 1977, Judge Melvin A. Shortess vacated his judgment of October 15, 1976. Finding that "but for” the fraud perpetrated upon the court by the witnesses who testified the action would not have been dismissed, Judge Shortess concluded that his original decision had to be vacated. Because of the fraud which he found, he also concluded that:
As a consequence, Tonry rather than Moreau became the Democratic nominee, and Tonry now sits in Congress. The language of Article 1, Section 5, of the U.S. Constitution makes Congress the sole judge of the qualification of its members. Congress must now decide. Hopefully, it will bear in mind that this court, for all of the reasons set forth above, does now annul and set aside its prior judgment of October 15, 1976. [Moreau v. Tonry, No. 29-542 (25th Jud. Dist. Ct. of Parish of St. Bernard, La. April 21,
1977); Slip Opinion at 17.] On May 4, 1977, Mr. Tonry resigned his seat in the U.S. House of Representatives.
A special panel of the Committee on House Administration of the U.S. House of Representatives had also been investigating the alleged vote fraud. With Mr. Tonry's resignation, the panel dropped its inquiry, although it did issue a report in the form of a committee print on June 2, 1977.
On June 9, 1977, the U.S. Court of Appeals for the 5th Circuit announced its decision per curiam. Noting that Mr. Tonry's resignation mooted the appellee's chief requests to set aside the results of the Democratic primary, the court concluded that nothing remained of the action for which the court could grant the interlocutory appeal. The court thus vacated the decision of the District Court allowing the appeal and remanded the action to the District Court for consideration of the mootness of the entire action or for such further proceedings as the District Court might require.
On December 8, 1978, Mr. Moreau and a group of his supporters filed an amended complaint and a second amended complaint with the U.S. District Court.
The amended complaint prayed for a declaratory judgment declaring the election of October 2, 1976, and November 2, 1976, to be null, void and of no effect and to order a new Democratic Primary Election to be held between James A. Moreau, and defendant, Richard A. Tonry, for the purpose of selecting the Democratic nominee to run for the office of U.S. Representative from the First Congressional District, of Louisiana. It also prayed for the holding of another general election.
The second amended complaint prayed for judgment against the defendants for damages in the sum of $5 million for deprivation of
their civil right to vote and to have their vote meaningfully and accurately counted, in the election held on October 2, 1976, plus $1.5 million, as attorney's fees.
On July 31, 1979 a conference was held to determine the status of the case. It was recommended that the case be placed on the call docket for dismissal inasmuch as no proceedings had been undertaken by counsel during the previous six months.
Status. — The case is pending before the U.S. District Court for the Eastern District of Louisiana.
The complete text of the April 21, 1977 decision of the 25th Judicial District Court for the Parish of St. Bernard is printed in the "Decisions" section of the Report Court Proceedings and Actions of Vital Interest to the Congress, Part 2, August 15, 1977.
The complete text of the per curiam opinion of the Court of Appeals is printed in the “Decisions” section of the Report Court Proceedings and Actions of Vital Interest to the Congress, Part 2, August 15, 1977.
The complete texts of the opinions of the Supreme Court of Louisiana, the Louisiana 4th Circuit of Appeals, and the 25th Judicial District Court for the Parish of St. Bernard, are printed in the “Decisions” section of the Report of Court Proceedings and Actions of Vital Interest to the Congress, Part 1, April 15, 1977. In re Japanese Electronic Products Antitrust Litigation
M.D.L. No. 189 (E.D.Pa.)
On July 27, 1978, during the course of this multidistrict antitrust action in the United States District Court for the Eastern District of Pennsylvania involving various American and Japanese corporations involved in the manufacture of electronic products, two notices of taking the deposition of Bernard Nash, an attorney who had been retained by Zenith Radio Corporation, were filed. The first notice, which was filed by defendant Motorola, Inc., sought, inter alia: any documents relating to remarks concerning Motorola made by Senator Robert B. Morgan on the Senate floor on June 27, 1978; any documents relating to the identity of anyone who communicated with Senator Morgan or his staff concerning Motorola; all ocuments communicated to any member or employee of the legislative or executive branch of Government, including but not limited to the Antitrust Subcommittee of the Senate Judiciary Committee, Senator Morgan or members of his staff, the Department of Justice, or the Securities Exchange Commission; and all documents relating to any communication relating to Motorola between Mr. Nash or his law firm and any member, employee, official or agency of the legislative or executive branch of the Government since January 1976. The second notice, which was filed by several corporate defendants, Toshiba, Matsushita, Hitachi, Sanyo and Sears, sought, inter alia, various types of documents relating to communications with any governmental body. Subpoenas duces tecum were served on Mr. Nash on July 28, 1978. Mr. Nash moved for a protective order on August 2, 1978.
The group of defendants who had served the second subpoena served a modified subpoena of narrowed scope on Mr. Nash on August 24, 1978, upon the instruction of the court at a pretrial conference held on August 16, 1978.
On August 28, 1978, Senator Robert Morgan filed a motion to intervene as intervenor of right. Senator Morgan sought to intervene in order to assert that the subpoenas infringe upon the investigatory authority of the Senate. To enforce the subpoenas, Senator Morgan's motion stated, would seriously inhibit the right of a Member of Congress to investigate coterminous legislative activity by deterring and chilling a citizen's willingness to provide information voluntarily or petition the Government for redress of grievances.
On October 4, 1978, Senator Morgan filed an amended motion to intervene as intervenor of right and an affidavit in support of the motion. Senator Morgan asserted that information supplied to him by Mr. Nash was privileged by the Speech or Debate Clause of the U.S. Constitution and that the subpoenas should be quashed insofar as they seek any testimony or correspondence by Mr. Nash with Senator Morgan or members of his staff.
Senator Morgan's motion to intervene was granted on October 4, 1978.
On April 12, 1979 Mr. Nash's motion for a protective order was granted. In Pretrial Order No. 163 the court stated that it need not and would not reach the issue of Speech or Debate Clause immunity. Instead, the court balanced the burdensomeness of the subpoenas duces tecum against their likelihood to produce material information and decided that they were of only marginal utility and should therefore be quashed. Likewise, the Motorola-requested deposition was halted without addressing the privileges asserted by Senator Morgan and Mr. Nash.
Status.—The case has been closed. Duplantier v. United States
Civil Action No. 79–1735 (E.D. Louisiana) and No. 79-2351 (Fifth Cir.)
In May 1979, six federal district court judges filed a class action on their own behalf and on behalf of all persons similarly situated. The complaint, which was filed in the United States District Court for the Eastern District of Louisiana, named the United States of America as the sole defendant and asked that the court impose a temporary restraining order against enforcement of the public disclosure and penalties provisions of Title III of the Ethics in Government Act of 1978 (28 U.S.C. App. $ 301 et seq.; hereinafter “Title III”). Additionally, preliminary and permanent injunctive relief was sought.
Under Title III all federal judges are required to file annually a comprehensive financial disclosure report. It must list the income, assets and liabilities of not only the particular judge but also of the judge's spouse and dependent children. This report is to be filed with the Judicial Ethics Committee. A copy of the report must be filed with the Clerk of the Court on which the judge sits. This copy, as well as the one filed with the Judicial Ethics Committee, must be made available to the public for inspection. A willful violation of these provisions may result in a $5,000 fine. Negligent violations may result in a $1,000 fine.
In challenging the power of Congress to require public disclosure under Title III the plaintiffs alleged that: (a) The provisions in
question violate the constitutional doctrine of separation of powers; (b) imposition of a penalty for failure to comply would have the effect of diminishing the compensation of a federal judge during his continuance in office, in violation of article III of the Constitution; (c) the provisions in question constitute on impermissable invasion of privacy and subject the judges and their families to personal and economic harm from criminal elements; and (d) Title III violates due process and equal protection rights.
On the day following the filing of the complaint the court issued a temporary restraining order prohibiting the U.S. Attorney General, the Judicial Ethics Committee and its Chairman, U.S. Circuit Court Judge Edward Tamm, and all federal court Clerks from enforcing in any manner the Ethics in Government Act of 1978 as it applies to U.S. judges.
On May 24, 1979 the plaintiffs amended their complaint to include as defendants Attorney General Griffin Bell, the Judicial Ethics Committee, and Committee Chairman Tamm. That same day the Government filed a motion to dismiss. The defendant attacked the plaintiffs separation of powers argument as being specious and claimed that Title III neither takes away nor restricts any power belonging to the judiciary.
The Government also argued that since Congress, under 28 U.S.C. $ 455(b)(4), has indicated that a federal judge must not preside over any proceeding in which he or his family may have a financial interest, the public has an overriding interest in knowing what those financial interests are. The defendant next responded to the diminishment of compensation challenge by saying that judges, like all other citizens, must be held responsible for failure to obey a law. Turning to the plaintiffs' invasion of privacy claims, the Government pointed out that federal judges have chosen to accept public office and by so doing, have limited the amount of privacy they may legitimately expect. The public's interest in knowing the financial interests of a judge outweighs the limited deprivation of privacy caused by Title III. In this regard the Government classified the plaintiffs' fear of physical and economic safety as speculative. Finally the defendant took the position that the instant suit should be dismissed under Rule 19, Fed. R. Civ. P. for failure to join persons needed for a just adjudication. It was the Government's contention that neither Judge Tamm nor the Judicial Ethics Committee are part of the government of the United States as defined in the sovereign immunity waiver statutes (5 U.S.C. $ 701 et seq.) Accordingly, said the defendant, sovereign immunity has not been waived as to them and they therefore cannot be defendants in this suit. Lastly, the Government stated that the Court also lacked personal jurisdiction over Judge Tamm and the Committee since neither one of them reside within the territorial limits of service of process by the court.
On May 25, 1979 the temporary restraining order was extended for ten days.
On May 30, 1979 the plaintiff judges filed a memorandum in opposition to the motion to dismiss in which they averred that their complaint had properly based subject matter jurisdiction on 28 U.S.C. § 1331(a) (i.e. federal question jurisdiction). Plaintiffs