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]

On September 8, 1981, the plaintiff filed a notice of appeal to the Appellate Division of the Supreme Court of the State of New York, Second Judicial Department, from that part of Justice D'Amaro's order denying his motion to amend the complaint (to add a new cause of action for wrongful discharge). Although the notice was filed in the Suffolk County Court, no papers had been filed by the plaintiff with the appeals court as of March 1, 1982. There has also been no further docketed activity in the lower court since the September 8 notice.

Status-The case is pending in the Supreme Court of New York, Suffolk County. According to the clerk of the appeals court, if the record and briefs have not been filed there by June 2, 1982, the appeal will be dismissed on letter request of the respondents.

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 Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1981.

V. Legislative Immunity and the Speech or Debate Clause

McSurely v. McAdams (formerly McClellan)

Civil Action No. 516-69 (D.D.C.)

On August 11, 1967, pursuant to warrants issued under a state sedition statute, Kentucky officials arrested Alan and Margaret McSurely and seized books and papers from their home. The McSurelys filed a complaint in the U.Ŝ. District Court for the Eastern District of Kentucky, challenging the constitutionality of the state statute.

On September 11, 1967, the three-judge court which heard the case issued an order directing that:

(1) the material seized in the raid on the McSurely home be left in the custody of the Kentucky Commonwealth Attorney, Thomas B. Ratliff;

(2) the material be made available to the U.S. Marshal for the Eastern District of Kentucky;

(3) Mr. Ratliff and the U.S. Marshal make an inventory of the seized material and file it with the record of the case; and

(4) Mr. Ratliff return to the McSurelys such materials as he determined were not relevant to the investigation and prosecution of the McSurelys.

That same day, the McSurelys were indicted by a Kentucky grand jury.

On September 14, 1967, the three-judge Federal district court rendered its decision holding the Kentucky statute unconstitutional and enjoining prosecution of the McSurelys. The court directed that Mr. Ratliff retain the seized materials "in safekeeping until final disposition of this case by appeal or otherwise."

On September 25, 1967, Lavern Duffy, Assistant Counsel on the staff of the Permanent Investigations Subcommittee of the Senate Government Operations Committee, called Mr. Ratliff by phone to ask about the seized documents. Subsequently, on October 8, 1967, committee investigator John Brick went to Kentucky, talked with Mr. Ratliff, and confirmed that the seized material in Mr. Ratliff's possession contained information relating to the activities of a number of organizations in which the subcommittee was interested. On October 12, 1967, Mr. Brick examined the material for about four hours. He took notes, made copies of 234 of the documents, and then returned to Washington.

On October 16, 1967, Subcommittee Chairman Senator John McClellan told Mr. Brick to prepare subpoenas duces tecum for the seized material in Mr. Ratliff's custody, which the Senator had determined was relevant to the subcommittee's investigations of an April 1967 riot in Nashville, Tennessee. The next day the McSurelys filed motions with the three-judge court seeking orders blocking Mr. Ratliff from releasing the seized material to the subcommittee and directing him to return the materials to them (the McSurelys). On October 30, 1967, the three-judge court issued an order denying the McSurelys' motions. Officers of the court and the parties to the action were directed "to cooperate with the Senate committee in making available such of the materials, or copies thereof, as the committee considers pertinent to its inquiry. . ." [McSurely v. McClellan, 553 F.2d 1277, 1308 (D.C. Cir. 1967)]

On November 1, 1967, a motion for reconsideration and rehearing of the October 30th order was denied. The court granted a 24hour stay to allow the McSurelys to apply to the U.S. Supreme Court for review, and directed that pending such review the material was not to be removed from Mr. Ratliff's custody.

On November 10, 1967, Justice Stewart, for the Supreme Court, ordered that the documents remain in Mr. Ratliff's custody until the three-judge court could hear and rule on the McSurelys' objections to the Congressional subpoenas.

In an order issued on December 5, 1967, the three-judge court overruled the McSurelys' objections to the subpoenas. The court ordered Mr. Ratliff to comply with the Congressional subpoenas by allowing committee representatives to make copies of the materials in his possession pursuant to the court's order. A five-day stay was

granted in order to allow the McSurelys to seek Supreme Court review.

On January 20, 1968, Justice Stewart again stayed the threejudge court's order. The stay was conditioned on the McSurelys filing an appeal of the October 30 order with the Supreme Court. On March 18, 1968, the Supreme Court declined to hear the case and dismissed the appeal in a per curiam order. [390 U.S. 914 (1968)] The Court, however, continued the stay to allow the McSurelys to apply to the Sixth Circuit Court of Appeals for a stay. By the time the McSurelys' appeal to the Sixth Circuit was taken, the time for the state to appeal the three-judge court's order of September 14, 1967, finding the Kentucky statute unconstitutional, had expired.

In July of 1968, the Sixth Circuit decided that since time for appeal of the September 14th order had run, "the right of the court to retain possession of the seized documents, which include no contraband, has expired." [McSurelys v. Ratliff, 398 F.2d 817, 819 (6th Cir. 1968)] The appeals court ordered that the materials be returned to the McSurelys without prejudice to the subcommittee's right to proceed with the the enforcement of its subpoenas: "[Questions [as to the subpoenas] may be adjudicated under the appropriate procedure for challenging subpoenas of Congressional Committees." [398 F.2d at 818]

On November 8, 1968, the seized materials were returned to the McSurelys, who were immediately served with new subcommittee subpoenas similar to the original subcommittee subpoenas. They refused to comply with the new subpoenas.

The McSurelys filed a civil action in the U.S. District Circuit for the District of Columbia on March 4, 1969, the date named in the subpoenas for their appearance before the subcommittee. They sought a declaration that compliance with the subpoenas was not required; a preliminary and permanent injunction against institution of criminal proceedings against them for their failure to comply with the subpoenas; and monetary damages.

No action had been taken in this civil suit at the time the McSurelys were indicted for contempt of Congress for failure to comply with the subpoenas. Subsequently, in their civil action, they filed an amended and supplemental complaint seeking only compensatory and punitive damages. The McSurelys alleged that the defendants (Senator McClellan, three members of the subcommittee staff-Jerome Adlerman, Donald F. O'Donnell, and John Brick-and Mr. Ratliff) entered into a conspiracy to deprive them of their constitutional rights. They sought damages

for the unlawful seizure, inspection and appropriation of their personal and business papers and documents and other objects and articles, for the issuance of subpoenas based on illegally obtained information and invalid on their face, for their humiliation and embarrassment, mental and emotional pain, loss of employment, disruption of personal privacy and safety caused thereby, all in violation and derogation of their rights under the First, Fourth, Fifth, and Fourteenth Amendments to the U.S. Constitution and the laws of the United States. [Plaintiff's Amend

ed and Supplemental Complaint, January 29, 1971, at 13-
14]

In the criminal action for contempt of Congress, the McSurelys were convicted and sentenced in June 1970. The convictions were appealed to the U.S. Court of Appeals for the District of Columbia Circuit. The decision of the appeals court, reversing the contempt of Congress convictions of the McSurelys, was filed on December 20, 1972. The majority of the court took the position that the exclusionary rule of evidence applied to proceedings before Congressional committees as well as to criminal prosecutions, and therefore, the court held, the subcommittee's subpoenas were inadmissible as the fruit of an unlawful search and seizure. [United States v. McSurely, 473 F.2d 1178 (D.C. Cir. 1972)] The case was remanded to the U.S. District Court for the District of Columbia with instructions to enter judgments of acquittal in the matter of the contempt convictions. The Solicitor General decided not to petition the Supreme Court for a writ of certiorari.

In the civil proceedings brought by the McSurelys, Chairman McClellan and the three subcommittee staff members filed a motion to dismiss, or, in the alternative, for summary judgment in the district court on October 26, 1971. In support of the motion the defendants argued that:

(1) Defendants are immune from actions for damages where as here it is clear that their conduct was within the sphere of legislative activity. (2) The claimant fails to state a claim upon which relief can be granted against defendants who were a U.S. Senator or employees of the Senate of the United States at all times material to this cause. (3) Plaintiffs are barred by collateral estoppel from relitigating issues previously settled by the judgment of this court in United States v. Alan McSurely and Margaret McSurely, Criminal Nos. 1376-69, 1377-69 ** [Defendants' Motion to Dismiss or in the Alternative for Summary Judgment, October 26, 1971, at 1]

The motion to dismiss was denied on June 12, 1973, and after the motion for reconsideration was rejected, the Federal defendants filed a notice of appeal.

In a 2 to 1 decision issued on October 28, 1975, the U.S. Court of Appeals for the District of Columbia Circuit reversed the district court's ruling and remanded the case for further action consistent with its holding. [McSurely v. McClellan, 521 F.2d 1024 (D.C. Cir. 1975)] The panel of the appeals court held that, as a matter of law, the defendants were entitled to summary judgment on all counts of the complaint relating to the inspection by the committee investigator of the seized material, the transportation of such material to Washington by the investigator, the utilization of the information by the investigator as the basis for Congressional subpoenas, and the issuance of contempt of Congress citations against them.

The appeals court left for the district court on remand the determination of whether the defendants actively collaborated in the original raid on the McSurelys' home and, if so, whether there was sufficient evidence of such collaboration to merit a trial on that

issue. In addition, the appeals court remanded to the lower court the question of whether the defendants distributed copies of documents to individuals or agencies outside Congress, and, if so, whether such distribution was actionable.

On December 10, 1975, after a petition by the McSurelys, the decision of the court of appeals was vacated and the petition for a rehearing en banc was granted.

On December 21, 1976, the court of appeals en banc issued its opinion. [McSurely v. McClellan, 553 F.2d 1277 (D.C. Cir. 1976) (en banc)]

A majority of the court held that as a matter of law the Federal defendants were entitled to summary judgment on: (1) allegations in the amended complaint pertaining to the subcommittee staff's inspection of the 234 documents that subcommittee investigator Brick brought to the subcommittee; (2) the utilization of the information obtained by Brick as the basis for Congressional subpoenas; and (3) the issuance of contempt of Congress citations.

The majority further said that: "since no allegation has been made as to conspiracy in the original raid of the McSurely's home, appellants are entitled to dismissal on this point." [553 F.2d at 1299]

As to the first three points the court found that the activities complained of were done within the legislative process and were protected by Speech or Debate Clause 1 immunity or legislative immunity.

Left for the district's court's consideration and initial determination on remand were:

(1) whether any cause of action against defendants Brick and Alderman survives their deaths; (2) whether Brick's inspection of the seized material put in Ratliff's possession under the three-judge court's "safekeeping" directive, and Brick's transport to Washington of copies of 234 documents, violated the McSurley' right under the Fourth Amendment; (3) whether Brick selected and transported to Washington copies of documents he knew to be wholly unrelated to the legislative inquiry, and, if so, whether such conduct was actionable under the applicable law; (4) whether any other federal defendant acted in concert with Brick in action for which he enjoys no legislative immunity; (5) whether any of the federal defendants distributed copies of documents in the subcommittee's possession to individuals or agencies outside of Congress, and, if so, whether such distribution was actionable under the applicable law; and (6) other matters identified in this opinion as requiring further development. [Id.]

As to the refusal to grant summary judgment on two allegations relating to dissemination of some or all of the documents outside the subcommittee and Congress, the court of appeals found that such activity "is not legislative activity entitled to absolute immu

'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]