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ments contained in the key subcommittee report were "false, misleading or incomplete."

Finally, Mr. Moss argued that Hutchinson v. Proxmire, supra, was "so factually distinct from Plaintiffs [sic] claim as to render the case of negligible value in resolving the issue presented” in the instant case. (Chairman Moss' Reply Memorandum, April 1, 1981, at 4]

On April 6, 1981, oral argument was held on the motion to quash at which the court indicated from the bench that it would be granted in part and denied in part. On May 6, 1981, U.S. District Court Judge Raul A. Ramirez issued an order granting the motion to quash with respect to the subpoenaed documents, and denying the motion with respect to Mr. Moss' and Mr. Smethurst's conversations with reporter Seligman. The order stipulated that the deposition on these latter issues could not include any questions concerning:

the conduct of the Subcommittee investigation (including
its reports, records and the rules and procedures of the
Subcommittee), the motives or purposes therefor, or any
legislative act taken in connection therewith by any legis-
lative aide, including communications between Mr. Moss,
while he was a member of the Congress of the United
States, and his aides or among the Committee staff, except
if, and to the extent that, Congressman Moss discussed
said items with defendant Seligman. [Order, May 6, 1981,

at 2] On June 26, 1981, Mr. Moss filed a notice of appeal of the court's order to the U.S. Court of Appeals for the Ninth Circuit. [No. 814339]

On August 10, 1981, Mr. Moss filed a motion to stay his deposition (then scheduled for August 14) pending his appeal to the Ninth Circuit. He argued that:

Whatever impediment results from a temporary stay of a pre-trial deposition of a non-party in a civil suit, (the relevance of which has been questioned by a party and congressional movant), when balanced against the interest in protecting the constitutional prerogatives of a coordinate branch, is justifiable and in the public interest. (Memorandum of Points and Authorities in Support of Chairman Moss' Motion to Stay Deposition Pending Appeal, August

10, 1981, at 5) Mr. Moss also asserted that if the stay was not granted, the alternatives--either forcing him to waive his privilege or face possible contempt of court-were unseemly and unjustified.

On the same day, Mr. Moss also asked the court for an order shortening the time for a hearing on his motion for a stay. On August 11, 1981, Judge Ramirez granted this request and set the stay motion for argument on August 24.

On August 17, 1981, the plaintiffs filed a memorandum in opposition to Mr. Moss' motion for a stay arguing that Mr. Moss was unlikely to prevail on appeal, that he would not be irreparably injured if the stay was not granted, and that they would be substantially prejudiced if the stay was granted. Additionally, the plaintiffs noted that there was a question as to whether the district court's May 6th order was in fact appealable, since ordinarily an order denying a motion to quash a subpoena duces tecum was not.

On August 19, 1981, the court of appeals granted the plaintiffs' motion to dismiss the appeal. In a two sentence order the court held that it lacked jurisdiction since the district court's ruling on the motion to quash was not an appealable order.

On August 26, 1981, Mr. Moss was deposed in Sacramento at which time he refused to answer numerous questions propounded by the plaintiffs' counsel.

On September 14, 1981, in the district court, the plaintiffs filed an application for an order to show cause why Mr. Moss should not be held in contempt. In a memorandum filled simultaneously, the plaintiffs asserted that, despite the court's May 6th order approving the questioning of Mr. Moss about his and subcommittee staff member Smethurst's conversations with reporter Seligman (identified as Items 1 and 4 on subpoena attachment A; see supra, page 355), Mr. Moss had “clearly and unambiguously failed to comply" at his deposition. (Memorandum Brief in Support of Plaintiffs' Application For Order to Show Cause Re: Contempt, September 14, 1981, at 4] The plaintiffs continued:

Examination of the (deposition) transcript . . . reveals a consistent and deliberate pattern of refusal to answer questions clearly not quashed by the Order and, more particularly, questions clearly not only falling within the reach of the Subpoena as modified by the Order, but questions falling within the subject matter of Items 1 and 4 which the Court clearly and affirmatively determined Mr. Moss should answer in the Order. Indeed, the vast majority of questions proposed in the deposition relate to reconstruction of the conversation beween Dan Seligman and Mr. Moss on January 23, 1979 (i.e., the subject matter of Attachment A, Item 1). Not ony did Mr. Moss refuse to answer any questions regarding the substance of the telephone conversation, he refused to even admit such a conversation had occurred or whether he knew or had ever talked to Dan Seligman . . . Also, Mr. Moss refused to respond to questions relating to Item 4 of Attachment A. Indeed, Mr. Moss again refused to even admit whether he knew Ben Smethurst, much less to testify about any knowledge he had concerning Dan Seligman's contact with

Ben Smethurst on or after January 4, 1979. [Id. at 3-4) On September 15, 1981, the court entered the requested order to show cause.

On October 8, 1981, Mr. Moss filed a response to the order to show cause, arguing that in seeking a contempt citation “at this stage in the proceedings" the plaintiffs had "improperly sought to short-circuit the proper procedure for consideration of a non-party, witness's refusal to answer questions propounded at a deposition. [Chairman Moss' Response to Order to Show Cause, October 8, 1981, at 2] According to Mr. Moss, under Rule 37 of the Federal Rules of Civil Procedure the correct approach would have been for the plaintiffs first to file a motion for an order compelling discovery. Mr. Moss reasoned:

The Order of this Court, previously entered in this case
on May 6, 1981, partially quashed the original subpoena.
The Order also further limited the questioning. This Order
is subject to varied interpretations, as evidenced by the
deposition session, and whether it precludes certain specif-
ic questions is a matter which should properly be argued
and decided in connection with a motion to compel. The in-
herent ambiguity of the subpoena, and the necessarily
attendant vagueness which accompanies this court's action
taken without reference to specific questions, render that
order insufficient as a basis for a contempt citation. As the
Supreme Court has recognized, "One should not be held in
contempt under a subpoena that is part good and part bad.
The burden is on the court to see that the subpoena is
good in its entirety and it is not upon the person who faces
punishment to cull the good from the bad." Bowman Dairy
Co. v. United States, 341 U.S. 214, 221 (1951); United States
v. Peterson, 206 F. 2d 433, 434 (D.C. Cir. 1953).3
3 The court, during earlier oral argument, has played the role of a prophet in this
matter. “I know exactly what's going to happen. I forsee it coming and that actually
this will have been a waste of time because the government was unable to quash all
facets, all side requirements, and I see what's going to happen, but I don't think I
can resolve that until the specific question is put before the court." Transcript of
Oral Argument on Motion to Quash, April 6, 1981 at 31-32 (Emphasis Added). It is
much more appropriate to reach these specific deteminations on the basis of a
Motion to Compel than at a contemp hearing with the attendant serious adverse
implications for the rights of an individual, as well as a coordinate branch.

[Id. at 4-5) In addition to contending that a contempt hearing at that point would violate the Federal Rules, Mr. Moss argued that it would also deprive him of several important due process rights guaranteed to an individual in a contempt situation. First, he noted, he was not on notice of precisely which of his refusals to answer the questions were alleged to be contrary to the order of the court, and therefore he could not adequately defend those refusals. Second, Mr. Moss maintained, because of the same lack of notice he was denied his right to “purge” himself of the contempt by specifically complying with an underlying order of the court delineating the particular questions to be answered.

On October 16, 1981, the plaintiffs filed a reply memorandum terming the "implications of Mr. Moss' arguments . . . completely out of touch with the requirements of an efficient judicial administrative system and ... contrary to the spirit of the Federal Rules of Civil Procedure.” [Plaintiffs' Reply Memorandum ..., October 16, 1981, at 4] Noting that eight months had passed since Mr. Moss was served with the subpoena and more than five months since the issuance of the court's order, the plaintiffs asserted:

After reading the transcript of the deposition, it is hard to
imagine a more clear contravention of the Subpoena and
Order. Mr. Moss' extended discussion of Rule 37(a), Fed. R.
Civ. P. requiring an Order as a prerequisite to a citation
for contempt is inapposite quite simply because there was

an Order. The cases cited by Mr. Moss simply do not address the situation where an Order has been entered in response to a Motion to Quash or for Protective Order. The notion that the Court must approve each question once it has previously entered an Order defining in detail the permitted scope of questioning is not supported by law. (Id. at

2-3] The plaintiffs also rejected Mr. Moss' due process claims, stating that he had been afforded more than adequate time to respond to the contempt charge and could at any time “purge” himself of contempt by simply responding to questions.

On October 19, 1981, oral argument was held on the contempt motion, and the following day Judge Ramirez issued an order adjudging Mr. Moss guilty of civil contempt. Although the order directed that he "be committed to the custody of the United States Marshal for incarceration until such time as he complies with the Subpoena as modified by the [May 6th] Order," it stayed incarceration pending appeal.

On October 20, 1981, the same day the contempt order was issued, Mr. Moss filed a notice of appeal to the U.S. Court of Appeals for the Ninth Circuit. (No. 81-4567]

On December 9, 1981, the defendants in the underlying libel action (the Seattle Post-Intelligencer, the Hearst Corporation, et al.) filed a motion in the circuit court asking that they be allowed to file a brief as amicus curiae in support of Mr. Moss' position on appeal. This motion was subsequently granted in an order issued on January 11, 1982.

On December 23, 1981, Mr. Moss filed his brief in the appeals court arguing, first, that the lower court had erred in adjudging him in civil contempt in the absence of an order compeiling answers to specific questions posed at his deposition. Again he contended that under Rule 37 of the Federal Rules, and in view of the drastic nature of the contempt sanction, an order compelling discovery was a prerequisite to finding him in contempt. According to Mr. Moss, decisions in the Second, Eighth, and Tenth Circuits, and the clear weight of judicial authority supported this view.

Even if the district court properly proceeded without an intervening motion to compel under Rule 37, Mr. Moss maintained, the court failed to provide him with a meaningful opportunity to demonstrate "adequate excuse" for non-compliance as required under Rule 45(f). Not only did the lower court not provide an adversary, evidentiary hearing to consider any nonfrivolous defenses, Mr. Moss argued, but also it took no steps to even ascertain whether all the questions posed at his deposition were within the bounds of its own May 6th order. Moreover, because of the "open-ended” nature of the subpoena and the "vague and indefinite" instruction of the contempt order, Mr. Moss contended that he could not reasonably know the precise manner in which he could purge the contempt if he so desired.

Second, Mr. Moss claimed that contempt was inappropriate both because he lacked authority under applicable House rules to respond to the questions posed and because the district court failed to provide a meaningful review of the questions upon which the House could base consent to respond. Mr. Moss explained:

As briefed and argued below, H.R. Rule L(50), supra at 3 n. 5, involves procedures established to guarantee protection of the textual prerogatives. Compliance with subpoenas can only be effected by a “Member, officer or employee, consistently with the privileges and rights of the House," H.R. Rule L(50) supra (1. Pursuant to these procedures, the current Chairman of the Committee on Energy and Commerce joined in making the requisite determination under Rule 50, 13 concerning materiality, relevancy and the constitutional privileges of the House. By letter Chairman Dingell "made the determinations required by Section 3," Exhibit 1, CR 17, and concluded that compliance was inconsistent with the privileges asserted.

In addition, H.R. Rule L(50) 16, requires the Member
must transmit notification to the House that the subpoena
"is a proper exercise of the court's jurisdiction, is material
and relevant, and is consistent with the privileges and
rights of the House" so that the House will have an oppor-
tunity to instruct the Member otherwise. As explained in
the floor debate during consideration of H.R. Rule L(50):

In all cases, however, notice would be given prior
to complying to the subpoena, so as to provide the
House an opportunity should it so choose, to intro-
duce a privileged resolution regarding the subpoe-

na.

126 Cong. Rec. H8945 (daily ed. Sept. 17, 1980 (remarks by
Rep. Derrick)). (emphasis added).

Under such a "privileged resolution" the "House may
determine ... whether to allow the documents to be re-
leased or testimony given, or take other action as it deems
necessary.Id.

In this case, no such notification was provided to the
House by Chairman Dingell, and therefore, Chairman
Moss lacked the authority to comply with the subpoena.
[Brief of Movant-Appellant, Chairman Moss, December 23,

1981, at 24-25 (footnotes omitted)] Finally, Mr. Moss asserted that in the "approximately 190 years of judicial legislative branch relations it has never been necessary in a single reported instance to resort to the harsh and severe remedy of contempt” for the two branches to reach an “accommo dation over subpoenas for documents or testimony. (Id. at 27] He suggested that over the years a process for resolving disputes had evolved

-a sifting process which insures both that the area of dis-
pute is reduced to the narrowest possible basis and that
the process of arriving at an accommodation provides an
opportunity for the coordinate branch to assure that its
privileges have been fully considered. This process was
abruptly and prematurely truncated by the district court

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