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Federal defendants must reconstruct these destroyed documents in order to meet plaintiffs' claims that the documents were irrelevant to any Congressional inquiry, that documents or information derived from their contents were disseminated by federal defendants to others outside the Congress, including the I.R.S., and that the examination of these documents by the federal defendants, by others outside the Congress, and, indeed, by plaintiffs themselves, caused plaintiffs mental pain and suffering.

(Id. at 12) Focusing next on the records and testimony of the plaintiffs' phycians and therapists, the Federal defendants argued that the aintiffs had "placed their physical and mental condition at the nter of this lawsuit," and that therefore full disclosure of their prior medical history, as well as subsequent, physical and mental nditions, diagnoses and treatment" was required. (Id. at 19] Ariing that the plaintiffs should not be permitted to assert the phycian-patient privilege in this instance, the Federal defendants asrted:

The detailed information that only contemporaneous notes of treatment can provide is particularly critical in this case. Plaintiffs have refused to distinguish the psychosomatic injury and mental-suffering they sustained as a result of the alleged examination and dissemination of their documents by federal defendants from injuries and sufferings caused by the conduct of Kentucky Officials in seizing the documents and jailing plaintiffs, by alleged attempts upon their life in Kentucky by persons unknown, and by alleged conduct of federal defendants protected under the Speech or Debate Clause or the Constitution, such as examination of the documents within the Senate subcommittee, the issuance of subpoenas, and plaintiffs’ prosecution and conviction for contempt of Congress. (See McSurely v. McClellan, supra, 553 F.2d at 1296-99.) Without the detailed history of plaintiffs' symptoms and treatment that only contemporaneously created records can provide, federal defendants may be unable to distinguish injury arising out of their arguably actionable conduct from injury caused by conduct as to which they cannot be questioned, or injury caused by the acts of others, for which they have no legal responsibility. (Id. at 20) The Federal defendants also asked the court to direct the plainiffs to inform them as to their possible witnesses at trial and to ompel the plaintiffs to answer expeditiously those interrogatories or which answers had been postponed or for which incomplete anwers had been given. Other discovery-related filings in this case during the last half of 1981 had centered on the Commissioner of the Internal Revenue dervice's attempts to secure a protective order limiting the copying of materials produced by IRS for the plaintiffs. (The plaintiffs were

to discover the extent to which their documents or the information in their documents had been disseminated throughout

seeking

IRS.) At the same time, the plaintiffs sought to hold the Commissioner in contempt for failing to comply with discovery orders of the court. On January 18, 1982, Judge Bryant filed an order: (1) denying the Commissioner's motion for a protective order; (2) directing the Commissioner to furnish copies of materials produced to the plaintiffs from the files of the "special service staff"'; (3) denying the plaintiffs' motion to hold the Commissioner in con tempt; and (4) directing the Commissioner to perform an additional search in response to a subpoena of the plaintiffs.

Also on January 18, 1982, Judge Bryant filed a second order granting the motion of Herbert H. McAdams II to withdraw from the case and dismissing the action against him, and substituting John K. McClellan for him as a defendant in the action. (Mr. Mc Clellan was the successor executor and personal representative o the estate of Senator McClellan.) On January 20, 1982, Judge Bryant filed an order granting the motion of Joshua D. Bash to withdraw from the case and dismissing the action against him

Bash had been a defendant in his representative capacity as co-personal representative of the estate of Mrs. Evelyn Adlerman.

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

The complete text of the January 17, 1979 memorandum and order of the district court is printed in the "Decisions" section o Court Proceedings and Actions of Vital Interest to the Congress March 31, 1979.

The complete text of the December 4, 1981 memorandum and order of the district court is printed in the “Decisions" section o this report at page 551. Benford v. American Broadcasting Companies, Inc.

Civil Action No. 79-2386 (D. Md.) and No. 81-452-CFX (U.S

Supreme Court) On November 23, 1979, George H. Benford, the state manager for Maryland for the American Family Life Assurance Company, file suit in the Circuit Court for Baltimore County against the Ameri can Broadcasting Companies, Inc. ("ABC"); Margaret Osmer, ar ABC employee; David Holton, the Chief Investigator for the Selec Committee on Aging of the U.S. House of Representatives; Kath leen Gardner, a Select Committee professional staff member; an Mrs. Isaac (Betty) Hamburger and Mrs. Lillan M. Teitelbaum, two special senior citizen investigators who worked for the Select Com mittee without pay. The three count complaint charged the defend ants with tortious and unconstitutional conduct arising from the Select Committee's investigation into abuses in the sale of healt! insurance to the elderly, and was based on a meeting arranged by the Congressional defendants at which Mr. Benford presented hi cancer insurance products to what he believed were officers o Maryland senior citizens groups. Unknown to Mr. Benford, the meeting was recorded by ABC, subsequently, portions of the tape were broadcast on the ABC Nightly News. After the meeting, the plaintiff learned that Congressional defendant Gardner, who had obtained employment with his agency and who had accompanied him to the meeting at defendant Hamburger's home, was actually an employee of the Select Committee, as was Chief Investigator Holton, who also attended the meeting.

Specifically, Count I of the complaint alleged a violation of the Maryland Wiretapping and Electronic Surveillance Act (Md. Cts. & Jud. Proc. Code Ann., $$ 10-401, et seq.); Count II alleged a violation of the Fourth and Fourteenth Amendments to the United States Constitution; and Count III alleged a violation of the common law of civil conspiracy in Maryland based on the commission of certain enumerated overt acts. The complaint sought $600,000 in compensatory damages and $12,000,000 in punitive damages ($200,000 and $4,000,000 respectively on each count).

On December 27, 1979, the Congressional defendants and ABC petitioned for removal of the action to Federal court pursuant to the Federal removal statute (28 U.S.C. § 1441(a)-(c)) and the Federal public official removal statute (28 U.S.C. § 1442(a) (1) and (4)). On January 10, 1980, the plaintiff filed a motion to remand the case to state court, contending that the constitutional violations alleged in Count II of the complaint were “collateral to, and entirely dependant (sic) upon,” the principal violation of the Maryland wiretapping statute alleged in Count I, and therefore could not provide the basis for Federal question jurisdiction. Further, the plaintiff argued, the Congressional defendants were not "officers of the United States or any agency thereof,” nor were they acting “under color of such office" as required by the Federal public official removal statute. Additionally, the plaintiff maintained that the case should be remanded to state court because defendant Betty Hamburger had invoked the jurisdiction of the state court to vacate a default judgment against her and therefore was precluded from petitioning for removal, and because defendant Margaret Osmer had not joined in the removal petition.

On January 31, 1980, the Congressional defendants filed a memorandum in opposition to the plaintiff's motion to remand, arguing that Count II of the complaint was a claim arising under the Federal Constitution and therefore "squarely within the class of actions for which a federal forum is appropriate.” [Congressional Defendants' Memorandum in Opposition to Plaintiff's Motion to Remand, January 31, 1980, at 3]

And since the "state and federal claims derive from a common nucleus of operative facts . . . [t]he doctrine of pendent jurisdiction : : : applies and the state claim is appropriate for Federal court determination." [Id. at 5] Further, the memorandum contended that the removal statute should be broadly construed to include Congressional staff: "it is submitted that the Congressional defendants may remove under section 1442(a)(1) because they are either themselves "officers of the United States," or are acting under Members of Congress who have been held to be officers of the United States.[id. at 9) Beyond this, the memorandum argued, for purposes of the removal statute, the Congressional defendants were acting under color of office" as the term had been defined by the courts, since they had been directed by a House committee to conduct the investigation at issue. Finally, the memorandum asserted that defendant Osmer did not have to join in the removal motion because she had not been served with process at the time it was

filed and defendant Hamburger's insubstantial defensive action in state court did not waive her right to remove.

Similar arguments were raised by defendant ABC in its memorandum in opposition to the remand motion filed the same day.

On March 7, 1980, a hearing was held before Federal District Court Chief Judge Edward S. Northrup on the plaintiff's motion to remand the case to state court. After oral argument, the Judge denied the motion and ruled from the bench that the defendants were entitled to remove the action to Federal court pursuant to the general removal statute. Judge Northrup noted that Count II of the complaint asserted a claim arising directly under the Constitution and therefore within the original jurisdiction of the court, notwithstanding the plaintiff's contention that the count was “entirely dependent" on a claim arising under state law. The court held that defendant Osmer's failure to join in the removal petition was not fatal because she had not been served at the time it was filed, and defendant Hamburger's action in state court to vacate a default judgment against her did not waive her right of removal. The court did not rule on the Congressional defendants removal claims as Federal officials, having determined that removal was proper under the general statute.

On April 15, 1980, the Congressional defendants filed a motion to dismiss the complaint or alternatively for summary judgment, ar guing that the acts they performed were done in the course of a valid legislative investigation and as such were absolutely privi leged under the Speech or Debate Clause. In an accompanying memorandum, the defendants contended:

[I]t is established beyond peradventure of doubt that the Congressional investigation conducted by the Select Committee on Aging was an official and authorized exercise of Congressional power, and that the acts committed in furtherance thereof by the Congressional defendants, as alleged by Plaintiff, were also a vital and fundamental part of the information gathering process to enable Congress to “legislate wisely and effectively''; McGrain v. Daugherty, 273 U.S. at 175, in the area of insurance sales to the elderly.

Moreover, the particular methods utilized by the Committee staff in this investigation were reasonably related to ascertaining "the conditions which the legislation is intended to affect or change,id.,-in this case, sales practices resulting in the purchase of duplicative or unnecessary coverage, scare tactics, forgery and switching of policies in relation to insurance sales to the elderly.

1

* It is well settled that Congressional aides are entitled to protection under the Clause in performing legislative acts. Gravel v. United States 408 U.S. 606 (1972) (senator's aide) Eastland v. United States Servicemen's Fund, supra (chief counsel to committee); Doe v. McMillan, 412 U.S. 306 (1973) (consultant to committee and com. mittee investigator). Congressional defendants Teitelbaum and Hamburger were enlisted by the Select Committee to assist in this investigation and functioned as staff of the Committee and are therefore entitled to the Clause's protection.

1 The Speech or Debate Clause of the U.S. Constitution provides that "for any Speech Debate in either House. (U.S. Senators and U.S. Representatives) shall not be questioned in an other Place.” (art I, § 6, cl. 1]

Congressional Defendants' Memorandum of Points and
Authorities in Support of Their Motion to Dismiss

April 15, 1980, at 9] The defendants also maintained that the suit was barred by the doctrine of official immunity which protects Federal officials from tort suits based on actions performed within the line of duty, and by the doctrine of qualified immunity which protects officials if their actions are taken in good faith and with a reasonable belief that they are lawful. In support of these contentions, the Congressional defendants submitted extensive affidavits and exhibits attempting to establish that it was within their official duties “to gather information on various informal bases as a predicate to the Select Committee's legislative functions.” (Id. at 17]

Turning to the substance of the complaint, the defendants asserted that even if all the facts as alleged by the plaintiff were true they did not constitute a violation of Maryland law or the U.S. Constitution, and therefore failed to state a claim on which relief could be granted. With respect to Count I, the defendants argued that the Maryland wiretapping statute was inapplicable since "none of the statements or actions attributed to the four Congressional defendants could constitute interception, procuring to intercept, or disclosure or use, of any wire or oral communication of the plaintiff.” (Id. at 19] Further, according to the memorandum, the statute did not purport to reach Federal investigators, and could not do so without contravening the Supremacy Clause of the Constitution. Moreover, the defendants contended, the key meeting filmed by ABC did not constitute a “private conversation" as required by the Maryland statute, and the filming was in any event consented to by the Congressional participants which was sufficient under Maryland law.

With respect to Count II of the complaint, the memorandum argued that "not one of the acts attributed to these defendants are, even if assumed to be true, violative of the Fourth Amendment" under prevailing Supreme Court decisions. (Id. at 28] And as to Count III, the memorandum maintained that under Maryland law only unlawful acts could give rise to a claim for civil conspiracy, and, since the acts of the defendants were not unlawful, the complaint failed to state a claim for which relief could be granted. On July 7, 1980, having previously been granted permission by the court to do so, the plaintiff filed an amended complaint with three additional counts. The new Count IV alleged a violation of the Federal Eavesdropping Statute (18 U.S.C. 88 2510, et seq); Count V alleged a "malicious interference with business relations"; and Count VI alleged invasion of privacy. For each new count, the plaintiff sought $200,000 in compensatory and $4,000,000 in punitive damages, the same amount claimed in each of the three counts of the original complaint.

On August 22, 1980, the Congressional defendants responded with a supplemental motion to dismiss the new counts or alternatively for summary judgment, based in essence on their earlier arguments. With respect to Count IV, they contended that the eavesdropping statute applied only where there was a justifiable expectation of privacy and further that the statute specifically provided

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