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over that substance by the filing of the Notice of Appeal and all further proceedings should be stayed. (Id. at 9-10) On March 20, 1981, plaintiff Benford filed a response to the Congressional defendants' motion for a stay in the court of appeals. He argued that: (1) the suit involved multiple parties and there was no just reason for delay with respect to non-appealing defendants ABC and Osmer; (2) no immunity, if any, which the appeals court might determine the Congressional defendants enjoyed would be applicable to defendants ABC and Osmer; (3) the orders appealed from by the Congressional defendants were interlocutory in nature and premature and therefore did not vest jurisdiction in the appeals court; (4) by stipulation in the lower court, the plaintiff and defendants ABC and Osmer had agreed that the noticed depositions would be withdrawn but that discovery by interrogatories and production of documents would move forward; (5) given the substantial passage of time since the case was filed, the plaintiff would be prejudiced if discovery was further postponed, while the Congressional defendants would not be injured in any way if discovery moved ahead according to the stipulation; and (6) precedent indicated that the Congressional defendants could not avail themselves of Speech or Debate Clause immunity in this matter and therefore they would not succeed on appeal.
Also on March 20, 1981, plaintiff Benford filed a motion in the court of appeals for an order to protect and preserve all documents related to the case in the defendants' possession during the appeal. Simultaneously, he filed an identical motion in the district court.
On March 24, 1981, the Congressional defendants filed a supplemental brief in the appeals court in support of their motion for a stay. They argued that the motion to protect and preserve documents filed by the plaintiff in the district court provided a “dramatic illustration" of the necessity for the court of appeals to grant the stay, since the relief sought by the plaintiff in the lower court would "necessarily entail a determination of the issue on appeal.”
On March 27, 1981, the Congressional defendants simultaneously filed oppositions to the plaintiff's motion for an order to protect and preserve documents in both the district court and the court of appeals. In the lower court the defendants reemphasized their argument that the court could not enter such an order because jurisdiction over the case was vested in the appeals court and the order would require a determination of the precise issues on appeal. They also contended that there had been no showing that the records of the House were in any jeopardy and therefore such an order was unnecessary. Finally, they asserted that it was doubtful that a district court could issue such a "coercive" order intruding into the internal affairs of a coordinate branch, since it would contravene not only the Speech or Debate Clause but also the separation of powers doctrine. In the court of appeals the Congressional defendants made similar arguments, emphasizing that the Speech or Debate Clause prevented the judiciary from entering coercive orders enjoining or requiring the performance of acts within the legitimate legislative sphere. According to the defendants, directing legislators or the House to take specific action with respect to papers and documents
would reach into the “very core" of this legitimate legislative sphere. Furthermore, the defendants maintained, the court should decline to issue such an order to a coordinate branch as a matter of comity, particularly since no showing had been made that such extraordinary relief was necessary.
On April 1, 1981, a two-judge motions panel of the court of appeals handed down a memorandum and order denying the Congressional defendants' motion for a stay of all proceedings and declining to consider the plaintiff's motion for a protective order. On the question of the stay, the court ruled that it could consider the re quest, not as an appeal, but as an invocation of its jurisdiction under the All Writs Statute (28 U.S.C. $1651). The court found that, in granting a limited stay, the district court “was properly exercising its discretion under an inherent power to control further proceedings in the trial court during the pendency of an appeal from a judgment which does not finally dispose of all claims before it.” [Memorandum and Order, April 1, 1981, at 3] The motions panel rejected the Congressional defendants' argument that to allow even the limited discovery provided by the district court order would deprive them of the Speech or Debate Clause protection which was being litigated on appeal. The court concluded that the possible adverse "spin-off effects" from the limited discovery were "too peripheral to the interest protected by the immunity asserted to outweigh the conflicting interests in expeditious conduct of the litigation that are the proper concerns of both the district court and this court." (Id. at 4]
On the question of the plaintiff's motion for a protective order, the panel declined to act, holding that it lacked jurisdiction to con sider it. The court concluded that the district court retained jurisdiction over the issue and should consider it first.
On April 13, 1981, District Court Judge Northrup handed down an order granting the plaintiff's request for an order to protect and preserve documents. In an accompanying memorandum, the Judge reiterated his position that the court had jurisdiction over the matter and termed the plaintiff's request "reasonable.'
On May 6, 1981, the Congressional defendants' appeal on the immunity issue was argued before the circuit court, and on June 17, 1981, the court issued a per curiam opinion affirming the judgment of the district court. (Benford v. American Broadcasting Companies, Inc., No. 81-1200 (4th Cir. June 17, 1981)] The court stated:
We affirm, for reasons adequately stated in the opinion of the district court. Liability may not be predicated on “legislative acts” performed by the congressional defendants. They may be held accountable in a private civil action for acts not legislative in nature that are unconstitutional, illegal, or tortious. Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975). The Supreme Court's decisions leave no doubt that, as a matter of law, the public broadcast of the taped meeting was not an "integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other
matters which the Constitution places within the jurisdic-
(Id. at 3-4] The court noted that although the record at that point did not establish that the Congressional defendants' involvement in the taping of the meeting by ABC was a legislative act, the ruling did not foreclose a contrary decision if they could factually demonstrate in future proceedings that their involvement was a protected legislative activity
The court held that its decision on the Speech or Debate question foreclosed dismissal “at this early stage” on grounds of absolute immunity. Because the question was not properly presented, the court did not rule on the correctness of the district court decision that the Congressional defendants might be entitled to qualified immunity.
On June 29, 1981, the Congressional defendants, asserting that extremely important constitutional issues were involved, filed a motion with the appeals court for a stay of its mandate for 30 days or until the filing and disposition of an application to the Supreme Court for a writ of certiorari. The mandate was stayed for a 30-day period in an order filed on July 6, 1981.
After the Congressional defendants subsequently asked the court for an extension of the stay to September 15, 1981, the plaintiff, on July 31, 1981, filed a response opposing any further extension on the grounds that such "dilatory tactics” were prejudicing his rights
. The actual request for a further extension by the Congressional defendants was not filed with the court until August 3, 1981.) On August 4, 1981, the court of appeals issued an order staying its mandate until September 6, 1981.
On September 4, 1981, the Congressional defendants filed a petition for a writ of certiorari in the U.S. Supreme Court seeking review of the June 17th decision of the court of appeals. (Holton v. Benford, No. 81-452-CFX] The petition cited five reasons for the Court to grant the writ.
First, the Congressional defendants argued, the case presented issues of “extraordinary importance” to the functioning of the legislative investigatory process. In short, they asserted, allowing the lower court decisions to stand thereby undercutting the protection of legislative acts under the Speech or Debate Clause-would seriously curtail the ability of Congress to investigate problems brought to its attention and to respond to such problems through legislation:
The failure of either federal court below to provide relief from a complaint charging the performance of concededly legislative acts, either in preparation for the November 3, 1978
meeting or in reporting the results of the meeting to the Select Committee, strikes at the heart of the legislative investigatory function, and if allowed to stand, will
have a serious effect on the efficacy of the Article I powers
Writ of Certiorari, September 4, 1981, at 11] Second, the Congressional defendants maintained, the decision of the court of appeals conflicted with the decisions of other circuit courts. In particular, the petitioners pointed to the decision of the District of Columbia Circuit in McSurely v. McClellan, 553 F.2d 1277 (D.C. Cir. 1977) (en banc), cert. dismissed as improvidently granted, 438 U.S. 189 (1978) (see page 193 of this report for a discus sion of that case), and the decision of the Third Circuit in United States v. Helstoski, 635 F.2d 200 (3d Cir. 1980), on remand from United States v. Helstoski, 442 U.S. 477 (1979) (see page 71 of Cour Proceedings and Actions of Vital Interest to the Congress, March 1 1981 for a discussion of that case). In the Congressional defendants view the court below
utterly ignored the unequivocal allegations in the complaint charging the performance of antecedent and subsequent legislative acts, while conceding that the Select Committee was engaged in a validly authorized investigation of abuses in the sale of cancer insurance, .. in direct conflict with the law of the District of Columbia and Third Circuits requiring, at the very least, dismissal of the parts of the complaint which charge investigative or other
legislative acts. (Id. at 14] Third, the Congressional defendants contended, the court of ap peals had decided a Federal question in a way in conflict with ap plicable decisions of the Supreme Court, most notably, Eastland United States Serviceman's Fund, 421 U.S. 491 (1975), which on dered the dismissal of an action against Members and their aide and held the activity involved absolutely protected, notwithstan ing the allegation in the complaint that the activity abridged th First Amendment and was unlawful. Similarly, the Congression defendants asserted that the appeals court decision conflicted wit Gravel v. United States, 408 U.S. 606 (1972) (holding that a Congre sional aide's statements to a Member during the term of employ ment and related to any legislative act, including the conduct of committee hearing, could not be questioned by a grand jury invest gating publication of the Pentagon papers), Doe v. McMillan, 41 U.S. 306 (1973) (holding that statements in committee reports, a well as utterances in committee hearings, are protected legislativ acts), and United States v. Brewster, 408 U.S. 501 (1972) and Tenne
v. Brandhove, 341 U.S. 367 (1951) (holding that the motives for the performance of legislative acts, even if "unworthy," may not be subject to questioning under the Speech or Debate Clause). Further, the petitioners claimed, the notion that the “mere allegation of violations of state or federal statutes serves to divest a legislator or his aides of their constitutional speech or debate protection for legislative acts directly repudiates the clear holdings of [the Supreme Court] in Eastland."(Id. at 18)
Fourth, the Congressional defendants argued, the court of appeals had decided an important question of Federal law which had not been, but should be, settled by the Supreme Court, namely, "the applicability of Speech or Debate Clause protection to valid investigative activity through 'field work' by staff.” [Id. at 19] Although the petitioners maintained that the Court had previously addressed the investigative function in Eastland and McGrain, supra, they asserted that "it has never squarely addressed the parameters of 'field work' by Congressional investigators." (Id. at 20]
Finally, the Congressional defendants maintained, the writ should be granted because "lower courts need a reminder that the Speech and Debate Clause [sic] applies to questioning at trial, not just to liability following the trial." [Id.) They contended:
The slower court) ruling reflects a common misapprehension of the scope of the Speech and Debate Clause. The Clause provides that legislators "shall not be questioned in any other Place" and prohibits "exposure" to being questioned before trial occurs. Helstoski v. Meanor, supra at 508. That means they shall not be questioned in a trial, among other places. Thus, if it appears from the pleadings in this case that legislative acts are being called into question, the Clause demands that such allegations be dismissed forthwith so that the legislative agents will not be questioned at trial concerning their legislative activities.
That constitutional concept is at the heart of this case. If Petitioners are right that the critical portions of the complaint charge legislative actions within the meaning of the
ause summary judgment on those portions must be awarded the Petitioners now. It will not do to have them questioned further at the trial on the merits on these portions of the complaint. Any trial must be limited to the portion of the complaint that deals with non-legislative actions. (Id. at 21) On October 21, 1981, Mr. Benford filed his opposition to the Congressional defendants' petition for a writ of certiorari. In his counterstatement of the case, the plaintiff succinctly stated why he viewed the Speech or Debate Clause as inapplicable to the activities involved in the present action:
None of the documents presented below showed that any Congressman had authorized petitioners to conspire deceitfully and surreptitiously to have staged transactions with insurance agents video taped and televised let alone to violate state and federal criminal laws or to commit civil