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without foundation in a case where the acts of the Congressional defendants exceeded the purview of legitimate legislative activity.
The plaintiff rejected ABC's arguments as well, arguing that a conspiracy did exist (between ABC and the Select Committee staff members); that an action for invasion of privacy was cognizable under Virginia law; that 18 U.S.C. 88 2510 et seq. was applicable in cases where the purpose of intercepting and using an oral communication was to commit “a criminal, tortious or injurious act” [Id. at 11] and the plaintiff had an expectation of privacy; and that there was no absolute privilege for the media from invasions of privacy, tortious interference with business interests or defamation, particularly where the motives of the defendants were at issue.
On December 10, 1981, the Congressional defendants filed a reply memorandum disputing the plaintiff's assertion that there was a material issue of fact as to whether they had been properly acting within the scope of their employment for the Select Committee. The defendants insisted that the plaintiff had not produced a "single scintilla” of evidence to rebut the extensive record of the legislative nature of their actions.
On December 11, 1981, after a hearing, Judge Bryan issued an order: (1) granting the defendants' motion to dismiss Counts II (eavesdropping under 18 U.S.C. 88 2510 et seq.), IV (invasion of privacy), and V (defamation) as barred by the applicable statute of limitations; (2) denying the defendants' motion to dismiss Counts I (conspiracy) and III (business interference), although dismissing Count I to the extent that it asserted a conspiracy to injure the plaintiff's reputation; (3) denying the defendants' motions for summary judgment on Counts I and III; and (4) denying defendant Osmer-McQuade's motion to dismiss for lack of personal jurisdiction. Judge Bryan also approved a stipulation and order of dismissal, with prejudice, of the case against defendant Denenberg.
On February 8 and 9, 1982, a jury trial was held on the remaining counts of the complaint, and on February 9 the jury returned a verdict in favor of the defendants on all counts.
On February 25, 1982, the plaintiff filed a notice of appeal to the U.S. Court of Appeals for the Fourth Circuit [No. 82-1192] of both the trial court verdict and Judge Bryan's interlocutory order of December 11 dismissing Counts II, IV, and V on the grounds that they were barred by the applicable statute of limitations.
Status—The case is pending in the U.S. Court of Appeals for the Fourth Circuit. American Family Life Assurance of Columbus v. American Broad
casting Companies, Inc.
Civil Action No. 20674 (Sup. Ct. New York County, N.Y.) On November 7, 1979, the American Family Life Assurance Company of Columbus, a Georgia corporation in the supplemental insurance business selling “Cancer Care,” filed suit in the Supreme Court of the State of New York, County of New York [Index No. 20674), against the American Broadcasting Companies, Inc. ("ABC"); Frederick S. Pierce, Roone Arledge, George Jenkins, Av Westin, Frank Reynolds, Margaret Osmer, Max Robinson, and Jeff Gralnick, ABC executives and employees; Erma Hufford; and Kathleen T. Gardner, Betty Hamburger, Lillian Teitlebaum, David Holton and Margaret Dixon, all present or former employees of the Select Committee on Aging of the U.S. House of Representatives. (The complaint did not identify the Congressional employees as such, but instead termed each of them “an agent, servant and/or employee" of ABC.) The four count complaint charged the defendants with defamation, libel, slander and a “prima facie tort,” and sought a total of $275,000,000 in compensatory and punitive damages.
Like Benford v. American Broadcasting Companies, Inc. and Brown v. American Broadcasting Companies, Inc. (see pages 204 and 220 respectively of this report for a discussion of those cases), this action arose from the Select Committee's investigation into abuses in the sale of health insurance to the elderly, and in fact set forth many of the same allegations, against several of the same defendants, as were involved in those cases.
More specifically, the complaint centered on two actions: a November 15, 1978 series of interviews (which were videotaped) by defendant ABC employee Osmer with the plaintiff's Chief Executive, John B. Amos, and various other employees; and the allegedly fraudulent securing of employment with the plaintiff by defendant Gardner who was actually an undercover investigator. The gravamen of the complaint was that through these two actions, and subsequent editing of the videotapes and statements of the plaintiff's employees, the plaintiff was set up" and a totally distorted and defamatory broadcast of the company's operations was presented. (The broadcasts were aired on ABC's national “World News Tonight” program on November 27, 28, and 29, 1978.)
The underlying theory of the suit was that a conspiracy existed to injure the plaintiff and that the conspiracy was effectuated "under the guise" of and "in conjunction with" the Select Committee "in an attempt to ward off any responsibility for televising inaccurate claims, illegal recordings and video tapes, false and libelous statements. [Verified Complaint, November 7, 1979, 131]
On July 7, 1980, a stipulation of voluntary discontinuance was filed dismissing the action against ABC defendants Pierce, Jenkins, Robinson, and Gralnick.
There has been no docketed activity in the case since July 1980.
Status—The case is pending in the Supreme Court of the State of New York. It has been the position of the Congressional defendants that they have not been properly served; therefore, they have filed no answer to the complaint nor any other responsive pleading. United States v. Myers (criminal)
[See page 35.]
United States v. Kelly
[See page 56.]
United States v. Jenrette
[See page 19.)
United States v. Murphy (criminal)
[See page 64.]
United States v. Thompson (criminal)
[See page 64.)
United States v. Williams
[See page 92.)
VI. Challenges to the Internal Rules of Congress and the Statutes
Under Which Congress Operates Murray v. Morton
No. 81-1301 (D.C. Cir.) On June 13, 1980, Jon Garth Murray, Director of the American Atheist Center of the Society of Separationists, Madalyn Murray O'Hair, and the Society of Separationists filed suit in the U.S. District Court for the District of Columbia against Azie Taylor Morton, Treasurer of the United States; G. William Miller, Secretary of the Treasury; Thomas P. O'Neill, Speaker of the House; Warren G. Magnuson, President Pro Tempore of the Senate; Walter Mondale, President of the Senate; and the Chaplains of the House (James David Ford) and the Senate (Edward L. Elson). (Civil Action No. 80–1475 (D.D.C.)] In their complaint, the plaintiffs alleged that the use of Federal funds, and the laws authorizing the use of these funds, to pay chaplains "to perform essentially religious functions” violated "the First Amendment's prohibition on passing laws which respect an establishment of religion", and violated plaintiffs’ “right to freedom from religion”. [Complaint, June 13, 1980, at 5) Suing as Federal taxpayers and atheists, the plaintiffs sought injunctive relief to restrain the defendants from expending or receiving Federal funds for the salaries of the chaplains or for their staff or expenses, as well as declaratory relief that the statutes authorizing expenditures for the chaplains were unconstitutional. On September 12, 1980, the U.S. Attorney for the District
CO lumbia filed a motion to dismiss the complaint on behalf of the United States, the Congress, the Senate, and the Senate and Executive department defendants. The motion was based on the following grounds: (1) the court lacked subject matter jurisdiction because adjudication would violate the doctrine of separation of powers; (2) the plaintiffs lacked standing; (3) the action was barred by the doctrine of res judicata; and (4) the complaint failed to state a claim upon which relief could be granted. On the same day, the General Counsel to the Clerk of the House filed a similar motion on behalf of the House defendants.
In a memorandum filed in support of the motion to dismiss, the U.S. Attorney asserted that the case was nonjusticiable because the authority to appoint and compensate officers such as the chaplains of either house of Congress was "textually committed” to the legislative branch by Article I of the Constitution. Additionally, the memorandum argued that since the plaintiffs were not members of either body of the legislature, they lacked standing, as taxpayers or otherwise, to challenge the compensation of legislative officers. Even if the court were to decide that the case presented justiciable issues, the U.S. Attorney continued, the practice of Congress choosing an officer designated as chaplain and paying his expenses could withstand constitutional challenge. The memorandum noted that both history and relevant case law demonstrated that having a chaplain and opening daily legislative sessions with a prayer was constitutional. It followed, therefore, that compensating the chaplain was likewise constitutional. Further, under the standards to be considered in reviewing Establishment Clause questions, the challenged practices clearly passed constitutional muster. The purpose of having a chaplain and opening legislative sessions with a prayer was "secular”-it called upon the legislators "to reflect upon their solemn purpose and the gravity of the responsibility placed upon their shoulders.” [Memorandum in Support of Motion of United States to Dismiss, September 12, 1980, at 10] The primary effect of the opening prayer did not advance religion-it simply provided the “appropriate atmosphere for beginning the legislative session." (Id. at 11] And there was no excessive entanglement with religion. Finally, the memorandum asserted, the doctrine of res judicata barred the action, since plaintiff Madalyn O'Hair's virtually identical suit seeking similar relief against essentially the same parties had been dismissed with prejudice in 1973. (O'Hair v. Nixon, Civil No. 410-73 (D.D.C. March 21, 1973)]
In his memorandum in support of the motion to dismiss, filed on September 15, 1980, the General Counsel to the Clerk made comparable arguments. In essence, the General Counsel took the position that the complaint failed to state a claim for which relief could be granted because, as a matter of law, neither the chaplaincy, nor the statute providing his salary, violated the First Amendment's Establishment Clause. The General Counsel summarized his argument as follows:
As interpreted in accordance with the Supreme Court's three part requirement of Lemon v. Kurtzman, 403 U.S. 602 (viz., statute must have a secular pu ose, a primary effect other than the advancement of religion, and no tendency to excessively entangle the government in religious affairs), the Legislative Branch Appropriation funding the Chaplain, and the rule of the House creating the Chaplain as an officer of the House and describing his duties is the purely secular one of fostering a spiritually wholesome environment in which to perform the Article I legislative function devolved upon Congress and its individual Members—a function carried out before and after adoption of the Constitution since the First Congress. Nor does the Chaplain have the primary effect of establishing religion, based not only on the Supreme Court's analysis of prayer by Chaplains of Congress as the performance by a religious person of a secular function but also on the premise of the Free Exercise Clause that the government must not manifest hostility toward religion, especially where Members are required by the Constitution and Rules of the House to
attend sessions of the House away from their home dis-
miss, September 15, 1980, at 8] In addition, the House defendants asserted that under its clear constitutional authority to choose its officers and make its internal rules, the House had "provided a chaplain for two hundred years without executive or judicial interference" and that the political question doctrine, “as a well recognized incident of separation of powers,” together with the Speech or Debate Clause immunity from being questioned about matters within the constitutionally defined powers of Congress, made the case nonjusticiable. (Id. at 9]
In an order filed on September 19, 1980, U.S. District Court Judge Louis F. Oberdorfer granted Senator Jesse Helms of North Carolina, Senator Gordon Humphrey of New Hampshire, and Congressman Guy Vander Jagt of Michigan leave to intervene in the case as party defendants. In their subsequent answer to the complaint, filed on September 22, 1980, the intervening defendants also sought dismissal of the action for reasons in line with those put forth by the other defendants.
On October 27, 1980, the plaintiffs filed an opposition to the motions of the defendants to dismiss the complaint and a motion for summary judgment. In a statement in support of the motion for summary judgment, the plaintiffs attempted to answer the justiciability, standing, res judicata, and constitutionality arguments raised by the defendants. On the justiciability question, the plaintiffs asserted that the courts were equipped to determine the issues of constitutional interpretation posed by the case: reconciling the authority of Congress to appoint officers with the tenets of the First Amendment. On the standing question, the plaintiffs noted that a case relied on by the defendants, Elliott v. White, 23 F.2d 997 (D.C. Cir. 1928), which also involved a requested injunction against paying the salaries of the Congressional chaplains and which was dismissed for lack of standing, was no longer valid law. The basis for the decision in that case, the plaintiffs contended, had been overruled in Flast v. Cohen, 392 U.S. 83 (1968), which accorded standing to Federal taxpayers challenging a Federal law which provided aid to religious schools. On the res judicata question, the plaintiffs claimed the earlier O'Hair v. Nixon case was inapposite since process was quashed and no decision was ever made on the merits. Further, the plaintiffs asserted, the complaint there challenged prayers at the White House, not in Congress.
Finally, on the constitutionality question, the plaintiffs argued that the statutes authorizing the payment of salaries for the legislative chaplains violated the three-pronged test for determining whether a particular government law or activity is permissible under the Establishment Clause. First, the plaintiffs asserted, the statutes had no "clearly secular" purpose, since they authorized the use of public funds to provide legislators with “religious coun