On August 7, 1981, the defendants filed a second motion to dismiss in response to the amended complaint. Since the causes of action had not been changed in the new complaint, the defendants simply referred the court to their earlier memorandum in support of the motion to dismiss.

On August 24, 1981, the plaintiffs filed a reply to the prospective intervenors' response to the oppositions for leave to intervene. The brief reply reiterated many of their previous arguments regarding the character of the lawsuit and the text of the War Powers Resolution.

Status-The case is pending in the U.S. District Court for the District of Columbia.

IV. Balancing the Speech or Debate Clause With the Law of Defamation

Ragas v. Davis

Civil Action Nos. 77-3690 and 77-3391 (E. D. La.)

The Congressional elections of 1976 resulted in seven contested elections. Pursuant to Rule X, 1. (i) (11) of the Rules of the U.S. House of Representatives, the Committee on House Administration undertook to resolve the various challenges by appointing a number of three-member ad hoc panels. One such panel was to investigate the validity of the Democratic primary contest in Louisiana between Richard A. Tonry and James A. Moreau. The panel was chaired by Representative Mendel Davis of South Carolina, and included among its professional staff Richard E. Moss, General Counsel to the Committee on House Administration, and John McGarry, Special Counsel to the Committee on House Administration.

In October 1977, the election commissioners of Plaquemines Parish, Louisiana and the Parish Registrar of Voters filed identical petitions for damages in the district courts of Orleans and Plaquemines Parishes, Louisiana. The complaints alleged that defendants Mendel Davis, Robert E. Moss, and John McGarry made defamatory statements about the plaintiffs in the course of investigating the Moreau-Tonry dispute. Numerous other persons and organizations were also named as defendants. In November and December 1977, the actions were removed to the U.S. District Court for the Eastern District of Louisiana where they were subsequently consolidated.

The defamatory statements complained of were allegedly made by Rep. Davis to news reporters during the ad hoc panel's investigation. The following statements, among others, were alleged by the plaintiffs to have appeared in New Orleans newspapers:

"U.S. Rep. Mendel Davis, D-S.C. said Congressional Investigators in their probe of October 2 voting had found 'overwhelming fraud' by both sides in the election." (States Item, May 4, 1977)

Gray III, Michael E. Lowry, George Miller III, Parren J. Mitchell, James L. Oberstar, Frederick W. Richmond, Gus Savage, Patricia Schroeder, James M. Shannon, Louis Stokes, and Harold Washington.

""There were definitely irregularities on both sides,' Davis said." (Times-Picayune, May 5, 1977)

While the plantiffs conceded that neither Mr. Moss nor Mr. McGarry made any statements to the press, it was claimed that Mr. Moss and Mr. McGarry, along with Rep. Davis, prepared and disseminated to the public a report of their investigation. Allegedly this report contained the defamatory material.

In February 1978, defendants Davis, McGarry and Moss filed a motion to dismiss the complaint. The defendants claimed that the acts complained of were done in the course of legislative activity for which they could not be questioned under the Speech or Debate Clause of the Constitution.1

On July 31, 1979, the defendants' motion to dismiss was denied. In its Memorandum-Order, the district court stated that whatever doubts existed as to whether statements to the press are protected by the Clause were removed by the recent holding of the U.S. Supreme Court in Hutchinson v. Proxmire. (See page 122 of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981 for a discussion of that case.) In Hutchinson, newsletters and press releases were held not to be protected. Accordingly, Congressman Davis' statements to the press would likewise be unprotected with respect to the allegedly defamatory report. The Court stated that under Gravel v. United States, 408 U.S. 606 (1972) and Doe v. McMillan, 412 U.S. 306 (1973), "Any private publication of a report is clearly not protected * * *." [slip op., July 31, 1979, at 4] Thus, if the defendants caused a defamatory report to be circulated to the public, the Speech or Debate Clause would offer no protection.

On August 29, 1979, defendants Davis, Moss, and McGarry filed a notice of appeal to the U.S. Court of Appeals for the Fifth Circuit from the district court order denying their motion to dismiss the complaint. On September 24, the defendants moved voluntarily to dismiss the appeal prior to any briefs being filed. (The motion initially was improperly addressed to the district court. The case had already been docketed in the court of appeals as No. 79-3126.) The dismissal was entered on October 10.

On September 20, 1979, defendants Davis, Moss, and McGarry filed their answer to the original complaint. In it they asserted thirteen defenses including failure to state a claim upon which relief could be granted; lack of subject matter and personal jurisdiction; official privilege; immunity under the Speech or Debate Clause; protection under the First and Fourteenth Amendments; nonjusticiability under political question doctrine; and insufficiency of service of process. Additionally, they claimed that the allegedly defamatory statements were true, were made within the lawful scope of Congressional duties, and were made with no malice toward the plaintiffs nor in reckless disregard of the truth.

On October 30, 1979, a conference was held to establish a schedule for discovery and other pre-trial motions. Trial was set for November 17, 1980. Subsequently, the action was dismissed as to a number of the non-Congressional defendants.

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]

On December 14, 1979, in an attempt to ascertain the precise nature of the alleged defamation, defendants Davis, Moss, and McGarry filed a request for the production of relevant documents from the plaintiffs and propounded as well their initial interrogatories. When a timely response was not received to these discovery requests, the defendants, on March 28, 1980, moved for a sanction of dismissal or, alternatively, to have the court compel a full and complete response from the plaintiffs. In a memorandum accompanying their motion, the defendants argued that:

It is well settled that the object of the Speech or Debate Clause is not only to protect legislators and their aides, Gravel v. United States, 408 U.S. 606, 618, (1972), from the imposition of ultimate liability for the actions alleged to have injured the plaintiffs, but likewise from the harassment and inconvenience attendant upon preparing a defense against such allegations. Dombrowski v. Eastland, 387 U.S. 82, 85 (1967). Assuming that the Court, in denying defendants' Motion to Dismiss, has correctly exposed them to the rigors of a full-blown trial, nevertheless the plaintiffs should not be permitted to prolong the disruption associated with preparing for such a trial. Indeed, on a practical level, plaintiffs' failure to respond to the defendants' discovery precludes them from even embarking upon the unavoidably complex and lengthy discovery process necessitated by the nature of the allegations and the identity of these defendants at the time period in question. Plaintiffs' behavior constitutes "a petty discourtesy as well as an obstruction of discovery." Szilvassy v. United States, 82 FRD 752, 756 (S.D.N.Y. 1979). [Statements of Points and Authorities in Support of Congressional Defendants' Motion December 14, 1979 at 4-5]

At a conference held on March 28, 1980, the plaintiffs were ordered to comply with the request for production and respond to the first interrogatories by April 30.

At a status conference held on May 2, 1980, the plaintiffs were ordered to answer all interrogatories within two weeks, and the parties were directed to submit a status report on the case and the estimated time needed for discovery within 60 days. The November 17, 1980 trial date was continued, to be reset at a later time.

In a report to the court submitted on July 2, 1980, counsel for the Congressional defendants indicated that they were currently assessing the terms of a proposed settlement.

On November 26, 1980, the Department of Justice withdrew as counsel for the Congressional defendants, to be replaced by private attorneys.

On April 23, 1981, the plaintiffs filed a motion asking the court to dismiss Congressional defendants Davis, Moss and McGarry from the action since a settlement had been reached. In an order signed the same day, U.S. District Court Judge George Arceneaux, Jr. granted the motion and dismissed the case as to the three defendants with prejudice.

Status-Although the case is closed with respect to the Congressional defendants, it remains pending against other defendant indi

Hi Pak, a South Korean citizen. Named as defendants in the suit were U.S. Representative Donald M. Fraser from Minnesota, Chairman of the Subcommittee on International Organizations of the House Committee on International Relations ("Subcommittee") and two staff members of that Subcommittee, Edwin H. Gragert and Martin J. Lewin.

The complaint contained two counts. The first count alleged a conspiracy by the defendants to deprive the plaintiffs and the members of the Unification Church of their constitutional rights. Specificially, it was claimed that the defendants and other unnamed individuals conspired to deprive the plaintiffs and "all persons associated with the Unification Church and Bo Hi Pak” of their rights of freedom of speech, freedom of association, freedom of expression and freedom of religion. The plaintiffs alleged that Rep. Fraser distributed defamatory materials regarding the plaintiffs; attempted to "deceive and trick" Bo Hi Pak during Pak's testimony before the Subcommittee; caused the payment of fees to witnesses who testified before the Subcommittee; and leaked or permitted leaking of testimony given by Bo Hi Pak in executive session. The plaintiffs claimed that these activities, in addition to violating their rights of freedom of religious exercise and association, damaged their reputations and resulted in financial damage to them due to curtailment of their activities and a reduction in financial contributions to the Unification Church. As relief under the first count, the plaintiffs sought an injunction barring the defendants from violating or conspiring to violate the plaintiffs' rights under the First, Fourth, or Fifth Amendments, $5 million in compensatory damages, and $10 million in punitive damages.

The second count asserted that the defendants deprived the plaintiffs of their constitutional rights. It was also specifically alleged, in addition to the acts alleged in count one, that defendants Gragert and Lewin, representing themselves as architects, fraudulently gained entry to a Washington, D.C. Unification Church building. The plaintiffs claimed that as a result of this action by Mr. Gragert and Mr. Lewin, their rights to the free expression and exercise of their religion were abridged, their right of free association was impaired, they were subjected to a warrantless search, and they were deprived of the due process of the law. The plaintiffs contended that the activities complained of in Count II also resulted in damage to their reputations and financial harm. Their demands under Count II included an injunction, $5 million in compensatory damages and $10 million in punitive damages, the same relief demanded under Count I.

1

On October 10, 1978, the defendants moved to dismiss the complaint or, in the alternative, for summary judgment on the ground that the Speech or Debate Clause of the Constitution 1 provided them with immunity from suit and liability because the actions complained of were within the sphere of legitimate legislative activity. Additionally, the defendants asserted that the complaint failed to state a claim for which relief could be granted.

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]

On April 4, 1980, the Congressional defendants moved to dismiss the action as to them because the complaint did not contain the exact words allegedly used by Rep. Downey and Ms. Cipola in slandering the plaintiff, as was required by New York law. According to the General Counsel, since the particular words were not pleaded there was no valid claim of slander per se. Second, the defendants contended, they were absolutely immune from common law torts as long as they were acting within the scope of their authority. Finally, the defendants argued, the first cause of action asserted no wrong-doing on the defendant's part and made no allegation of special damages.

The plaintiff cross-moved for an order allowing him to replead after discovery the exact words allegedly used by Rep. Downey and Ms. Cipola in slandering him. This was opposed by the Congressional defendants in an affirmation filed on September 23, 1980, which also supported their motion to dismiss the complaint. On October 21, 1980, Judge Orgera denied the motion to dismiss with leave to replead after submission of the proper papers. Subsequently, on February 9, 1981, the General Counsel refiled the motion to dismiss and a supporting memorandum on behalf of the Congressional defendants.

On August 3, 1981, Justice D'Amaro issued a memorandum denying, as "premature," the motion of Rep. Downey and Ms. Cipola to dismiss the complaint. Although the court agreed with the defendants that the plaintiff had indeed failed to state in the complaint the exact words by which he was allegedly slandered, and therefore the complaint was insufficient, Justice D'Amaro ruled that "[r]ather than outright dismissal in these circumstances, the practice in this State is to permit the plaintiff to replead after disclosure." [Memorandum, August 3, 1981, at 2]

While the court recognized that the action raised a "serious question of immunity to the extent it is extended to the Congressional defendants," Justice D'Amaro concluded that the question could not then be addressed "inasmuch as the Court cannot determine from the complaint herein-even when read in conjunction with the voluminous affidavits and memoranda submitted on these motions-what exactly is alleged to have been said by whom, to whom and when." [Id. at 1-2]

The court also denied a motion by the plaintiff to include an additional cause of action-wrongful discharge-finding the plaintiff's arguments "specious and totally devoid of merit." [Id. at 2]

Status-The case is pending in the Supreme Court of New York, Suffolk County.

The complete text of the August 3, 1981 memorandum of the New York State Supreme Court, Suffolk County is printed in the "Decisions" section of this report at page 321.

Holy Spirit Association for the Unification of World Christianity v. Fraser

Civil Action No. 78-1153 (D.D.C.)

This suit was filed in the U.S. District Court for the District of Columbia on June 22, 1978 by the Holy Spirit Association for the Unification of World Christianity ("Unification Church") and Bo