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for consensual monitoring. With respect to the common law torts alleged in Counts V and VI, the defendants again asserted the defenses of absolute and qualified immunity:

Also on August 22, defendant ABC filed an answer to the amended complaint and a motion to dismiss Counts II and IV. ABC argued that the counts should be dismissed for failure to state a claim on which relief could be granted because the Fourth Amendment did not regulate nongovernmental searches and seizures and because the alleged surveillance of the meeting at issue was consented to by four of the five people present.

On September 3, 1980, prior to responding to any of the defendants' motions, the plaintiff served notices of depositions on several of the Congressional defendants. In response, the Counsel to the Clerk of the House sought a protective order staying discovery until the “potentially dispositive” preliminary motions were decided by the court. The defendants argued that such a stay was neces. sary to prevent any "needless intrusion" on the functioning of the legislative branch and to avoid the legal determination of the plaintiff's authority to depose the Congressional staff members Furthermore, the defendants insisted, permitting discovery would itself constitute an "abridgement of the privileges and immunities of the legislative branch.” Terming the attempt to take depositions "litigative harassment of an ongoing legislative process," the de fendants contended that discovery should be considered only after the pending dismissal/summary judgment motions were rulec upon.

On October 2, 1980, Mr. Benford filed opposition motions both to the Congressional defendants motion for a protective order and to the motions to dismiss the complaint. With respect to the reques for a protective order, the plaintiff asserted that discovery was nec essary on the issue of the purported “authorization” of the Con gressional defendants to aid in the taping of the relevant meeting According to the plaintiff, this "authorization" was a material fac in dispute which prevented the granting of summary judgment.

With respect to the motions to dismiss, Mr. Benford contende that he had stated a claim on which relief could be granted in each of the statutory, constitutional and common law counts in the com plaint. As to Count I, he insisted that, contrary to the Congression al defendants' position, the Maryland wiretapping statute did apply to Federal investigators; that the Supremacy Clause did not bar it application in cases where Federal agents were acting illegally ir violation of a valid state law; that the meeting filmed did consti tute a "private conversation" for purposes of the statute; and tha consensual monitoring was not permitted without the agreement o all parties involved. Further, the plaintiff argued, the Congression al defendants were not protected by either the Speech or Debat Clause or official or qualified immunity from tort liability for viola tions of state and Federal statutes and the Federal Constitution Citing Hutchinson v. Proxmire (see page 122 of Court Proceeding and Actions of Vital Interest to the Congress, March 1, 1981 for discussion of that case), the plaintiff asserted, inter alia, that th Speech or Debate Clause did not even immunize Members fron comparable activities “outside the House of Congress.” In contend ing that the remaining counts of the complaint also stated a caus of action, the plaintiff emphasized again that in his view there was no consensual monitoring under either Maryland or Federal law without the consent of all the parties, and that consent in any event would be vitiated if a party was not acting under color of law and the purpose of the "interception" involved a criminal or tortious act. Additionally, Mr. Benford maintained, he had a “reasonable expectation of privacy” of his statements at the key meeting because the meeting was in a private house in regard to a private matter. In support of this contention, counsel submitted an affidavit of Mr. Benford outlining his understanding of the meeting.

In a reply memorandum filed on October 9, 1980, the Congressional defendants noted that the plaintiff had narrowed his focus to challenging the authorization for the electronic surveillance rather than the authorization for the legislative inquiry on cancer insurance. They asserted, however, that such surveillance was "within the authority delegated to the staff by the Chairman," and therefore protected by the Speech or Debate Clause from discovery.

On October 16, 1980, the district court held a hearing limited to the immunity defenses and the issue of discovery related thereto. After oral argument, Judge Northrup indicated from the bench that he would deny the Congressional defendants' motion to dismiss or alternatively for summary judgment and for a protective order staying discovery. A written opinion was to be issued subsequently.

On October 17, 1980, defendant Margaret Osmer moved to dismiss the complaint, arguing that the plaintiff had alleged no specific unlawful act on her part nor any specific facts linking her to the allegedly unlawful acts. Additionally, as to Counts II and IV, she moved to dismiss, as had ABC, because the Fourth Amendment did not regulate nongovernmental searches and seizures and because the alleged surveillance was consented to. The plaintiff opposed this motion for reasons he had articulated previously.

On November 14, 1980, Judge Northrup issued his written opinion holding that neither the taping of the Benford meeting nor the subsequent broadcasting was absolutely protected by either the Speech or Debate Clause or the doctrine of official immunity (Benord v. ABC, 502 F. Supp. 1148 (D. Md. 1980)] The court also held, however, that upon showing that the taping and broadcasting were properly authorized, the Congressional defendants would be entitled to assert a defense of qualified immunity.

With respect to ABC's broadcast of the key meeting, the court noted that in "recent decisions concerning the scope of the Speech or Debate Clause, the Supreme Court has exhibited a reluctance to extend the protective shield to the private publication of materials obtained in the course of legitimate legislative activity." [502 F. Supp. at 1153) For this proposition the court cited Gravel v. United States, 408 U.S. 606 (1972); Doe v. McMillan, 412 U.S. 306 (1975); McSurely v. McClellan, 553 F.2d 1277 (D.C. Cir. 1976); and Hutchinson v. Proxmire, 443 U.S. 111 (1979). The court also dismissed the Congressional defendants' contention that the broadcast was justified in furtherance of the "informing function" of Congress. Although the court insisted that it did not question the value of that function, it concluded that there was “no legitimate reason for using it as a means of protecting the publication of materials injurious to private individuals.(Id. at 1155]

With respect to the “more difficult question” of the taping of the meeting, the court found that without deciding "whether the actions of the congressional defendants were unlawful or unconstitutional, and, if so, if other defenses are available, ... there is still sufficient evidence in the record which affords more than merely colorable substance” to plaintiff's claims. (Id. at 1156] The court noted that the defendants had ample opportunity to protect them selves by seeking judicial permission for the taping prior to the meeting but had failed to do so.

With respect to the doctrine of official immunity, the court found "no justifiable reason for affording the congressional defendants absolute official immunity when these officials are not deserving o absolute protection under the Speech or Debate Clause. The right of legislative officials to absolute immunity is limited to the protec tion accorded by the Speech or Debate Clause.” (Id. at 1158]

On the same day that the written opinion was issued, a hearing was held before the court on ABC's motion to dismiss Counts II and IV of the complaint and the motion of defendant Osmer to dismis the complaint in its entirety. In an order filed on November 24 1980, Judge Northrup granted the motions only as to Count II holding that because one of the parties consented to the taped con versation there was no viable Fourth Amendment claim. The judge denied the motions to dismiss the remaining counts of the com plaint.

On November 25, 1980, the Congressional defendants renewed their motion to dismiss Count II of the complaint as to them, based on the court's holding with respect to ABC that the Fourth Amend ment could not be violated where consent to record was conferred by a participant to a conversation. Simultaneously, the Congres sional defendants filed a motion and accompanying memorandun seeking reconsideration of the court's November 14 order. The cruz of the reconsideration motion was that allegations of conduct con stituting neither “taping” nor "broadcasting” pervaded the com plaint and these allegations involved preparatory acts within the *legitimate legislative sphere.” The memorandum argued that the court had to decide the immunity issues on the basis of all the con duct allegedly committed by the Congressional defendants, "rathe than limiting its discussion to the taping and subsequent broadcast ing, actions which the Amended Complaint does not even charg against Congressional defendants.” [Memorandum of Points an Authorities in Support of Reconsideration, November 25, 1980, at 4 The memorandum also attacked the court's opinion for undermin ing the concept of legislative immunity by seemingly adopting a “illegality exception” when a plaintiff simply alleged a statutory o constitutional violation. In this regard, the Congressional defend ants stated:

To read McSurely, Dombrowski, and the Gravel dicta as creating an “illegality" exception broad enough to encompass all allegations otherwise actionable before the judicial branch is to read legislative immunity out of the Constitution. If a legislator can be forced to fully defend against

ور

any cause of action or claim actionable at law, however
frail, then legislative immunity provides no greater protec-
tion than a motion to dismiss under the Federal Rules of
Civil Procedure. The entire history of legislative immunity

must be ignored to countenance such a ruling. (Id. at 10) The motion to reconsider was opposed in a filing by the plaintiff on December 10, 1980, which took the position that all the defendants engaged in a conspiracy against Mr. Benford of which the taping and broadcasting was an integral part.

On January 14, 1981, the court issued an order granting the motion of the Congressional defendants to dismiss Count II of the complaint and denying the request for reconsideration. Judge Northrup, in rejecting the reconsideration arguments of the defendants, explained:

The congressional defendants insist that the arrangements made prior to the sales meeting must be distinguished from the meeting itself. It is fair to infer that the congressional defendants knew that the meeting was to be taped and that what they claim to be legitimate investigative activity was done with an eye toward the sales meeting. The many acts that the congressional defendants claim must be separately considered were allegedly part of a scheme that culminated with the meeting of November 3. The Court's judgment is unchanged that the preparatory conduct must be considered in conjunction with the taped meeting.

In so deciding, this Court does not intend to suggest that legislative investigations are unprotected. It merely asserts that legislative officials who engage in allegedly illegal conduct while gathering information are not absolutely

immune. (Memorandum, January 14, 1981, at 4] On January 21, 1980, the Congressional defendants filed a notice of appeal of the court's November 14th order to the U.S. Court of Appeals for the Fourth Circuit. [No. 81-1200]

On February 27, 1981, defendants Osmer and ABC filed a motion in the district court requesting a stay of the proceedings until the Congressional defendants' appeal to the Fourth Circuit was ruled upon. On March 4, the same defendants asked the lower court for a protective order directing that the noticed depositions of Ms. Osmer and certain other ABC employees be stayed pending the appeal.

On March 9, 1981, the Congressional defendants also filed a motion to stay all further proceedings—including discovery–in the district court. In an accompanying memorandum, the defendants argued that their appeal had completely divested the district court of jurisdiction over the case and transferred it to the court of appeals. Furthermore, they argued, the issue on appeal was fundamental to the strategy and posture of all the defendants in the case, and the appeal could well dispose of the entire suit. Finally, the Congressional defendants asserted, allowing simultaneous proceedings in the district court would potentially result in duplicitous or unnecessary proceedings, wasting the time and resources of the parties and the court.

Also on March 9, 1981, the plaintiff filed a memorandum in the district court in opposition to the motion of defendants ABC and Osmer for a stay of proceedings and a protective order. In it, Mr. Benford argued that the district court orders which had been appealed by the Congressional defendants were interlocutory in nature and therefore complete jurisdiction over the case was not vested in the appeals court. In particular, the plaintiff maintained, the appeal did not divest the lower court of jurisdiction over the non-appealing defendants (ABC and Ms. Osmer) and over discovery involving them. Furthermore, the plaintiff asserted, the issue on appeal-the existence of Congressional immunity-was not relevant to defendants ABC and Osmer and would not protect them even if the court of appeals ruled in the Congressional defendants favor.

On March 10, 1981, a hearing was held before Judge Northrup on all pending motions, and the next day he signed an order grant ing the Congressional defendants' motion for a stay to the extent that no trial was to be held until their appeal was finally disposed of. In the same order, Judge Northrup denied the motion of defend ants ABC and Osmer for a protective order halting discovery.

On March 13, 1981, the Congressional defendants filed a motior in the court of appeals for a stay of all proceedings in the lower court during the appeal. The defendants argued that Judge North rup's order, while directing that a trial could not proceed while the appeal was pending, did permit discovery to continue and therefort failed to "adequately provide protection of the Congressional de fendants substantial right to have their Speech or Debate appellat claims adjudicated before being forced to defend themselves fo acts claimed to be within the immunity.” [Brief in Supporto Motion for Stay Pending Appeal, March 13, 1981, at 3] The Con gressional defendants also reiterated their arguments, made in th district court, that their appeal vested complete jurisdiction of the case in the appeals court making further proceedings in the lowe court inappropriate. This was particularly so because the issue on appeal of Speech or Debate immunity could not, they contended, b separated from other aspects of the case. The Congressional defend ants concluded:

To summarize, the District Court has by its Order sanctioned the taking of interrogatories and requests for the production of documents and has in fact only precluded proceeding to actual trial. These modes of discovery are every bit as intrusive and destructive of the Speech or Debate Clause immunity as the depositions initially sought by Plaintiff and present the threat that the significant and substantial rights of a coordinate branch of government will be lost for want of a stay. It is precisely those activities which are within the protection of the Speech or Debate Clause and which are the subject matter on appeal to this Court. Since this subject matter permeates the allegations described in the Amended Complaint, and makes up the substance of the District Court's orders appealed from, the District Court has been divested of jurisdiction

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