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Plaintiffs' counsel were not notified that counsel for Capital would appear at the status hearing, nor were they served prior to hearing with the motions 18 filed by Capital on the day of the hearing. 19

[692] "[Ex parte communications shadow the impartiality, or at least the appearance of impartiality, of any judicial proceeding" and "may, in some circumstances, constitute a deprivation of due process of law." Grieco v. Meachum, 533 F.2d 713, 719 (1st Cir. 1976). The ex parte communication in the case at bar was highly improper, and it appears likely that the district judge would not have called the status hearing but for the concerns raised by Capital in the ex parte communications. Nevertheless, [i]n the absence of any showing that the [exparte communications] infected the factfinder's determination of the issues at trial, . . . the challenged practice [does] not violate . . . due process of law." Grieco, supra, 533 F.2d at 719.

The majority concludes that, because plaintiffs had an opportunity to present their views on Capital's motion to vacate, the litigants were not prejudiced by the contacts. Although the majority characterized the ex parte contacts as "extremely troubling," they merely admonished Capital to improve its conduct of litigation in the future.

I believe that Capitol's ex parte contacts and failure to serve all parties with copies of motions were blatantly inappropriate and violated principls of due process. It is axiomatic that the fair conduct of litigation requires that no party (or prospective intervenor) have contacts regarding the merits of a pending case with the judge or his staff absent notice to the other litigants and an opportunity for them to appear and be heard. The parties in this case were not afforded such an opportunity until well after a copy of Senator Laxalt's letter had gone to Judge Grady and Capital had had contacts with the judge's staff.

My examination of the record leads me to conclude that these ex parte contacts were prejudicial. First, as I noted previously, it is doubtful that the district judge would have reopened the case in the absence of those contacts. Second, plaintiffs' counsel had no notice that Capital would appear at the hearing, nor did they have copies of Capital's motions to intervene and to vacate the settlement. Although plaintiffs had an opportunity to respond to those motions later in writing, the lack of notice prior to the hearing surely put them at some disadvantage in their arguments at the status hearing. Because these ex parte contacts were obviously unethical, I would find that the due process clause was violated; therefore, I would find that the order vacating the settlement decree is void and I would remand the case for reconsideration of certification and notice.

18 At the October 6 status hearing, Capital filed a consolidated motion to intervene and motion for relief from the order.

19 The failure to include a proof of service was in violation of N.D.Ill. Rule 7(b), as the major ity notes. See p. 679 n.52 supra.

B. Separation of Powers

As plaintiffs note, the Supreme Court has enunciated a threshold test for determining when an act of one branch of Government violates the doctrine of separation of powers:

[I]n determining whether [an act of one branch] disrupts
the proper balance between the coordinate branches, the
proper inquiry focuses on the extent to which it prevents
[another branch] from accomplishing its constitutionally
assigned functions.

Nixon v. Administrator of General Services, 433 U.S. 425, 443, 97 S.Ct. 2777, 2790, 53 L.Ed.2d 867 (1977). As noted previously, while I would characterize the ex parte communication here, especially the letter from Senator Laxalt and Capital's contacts with Judge Grady's chambers prior to the October status hearing, as clearly improper. I cannot conclude that those contacts hindered or prevented the district court from carrying out its duties. I would therefore hold that no violation of the principle of separation of powers occurred. Nevertheless, I must state that as a general principle, ex parte communication from members of Congress to the judiciary regarding legislation at issue in pending litigation not only endangers the independence of the judiciary [693] but also has a tendency to undermine the fundamental doctrine of separation of powers.

I would also find that the communication between Senator Laxalt and defendant Rios did not violate the separation-of-powers doctrine. Defendant Rios, as director of CSA, had counsel to advise him regarding this case. I therefore think it unlikely that the letter from Senator Laxalt hindered him from performing his legal duties.

For the reasons stated, I would reverse the district court's order vacating the consent decree and remand the case for further proceedings.

12-817 083 42

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA, GREENSBORO DIVISION

DAVID I. SMITH, PLAINTIFF

V.

ROBERT MCDONALD, DEFENDANT

No. C-81-475-G

March 19, 1982

MEMORANDUM

GORDON, Chief Judge.

This is a libel action that was originally filed by the plaintiff Smith in the North Carolina General Court of Justice, Superior Division of Alamance County, 81 CvS 1088, on July 24, 1981. On August 25, 1981, defendant McDonald petitioned for removal to this Court pursuant to the provisions of 28 U.S.C. § 1441 et seq. McDonald contends that at the date of the commencement of the above styled action, he was a citizen of the Commonwealth of Virginia within the meaning of 28 U.S.C. § 1332 and that, therefore, this Court has original jurisdiction over the action.

This matter is before the Court on Smith's motion to remand the action to the state court on the grounds that the action was improvidently removed, and on McDonald's Fed.R.Civ.P. 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. Both motions will be DENIED.

FACTS

Since 1970, the defendant McDonald has held an ownership interest in Colonial Pre-Schools and Kindergartens, Inc., a corporation doing business in North Carolina. Prior to 1980, McDonald administered that business from his home in California. In July of 1980, McDonald moved to North Carolina and placed his household goods in storage in Winston-Salem. (McDonald affidavit filed August 25, 1981).

Within ten days of placing his goods in storage, McDonald made a trip to Charlottesville, Virginia, for the purpose of purchasing property, negotiating construction contracts and building a home. McDonald made formal offers for property in Virginia as early as October of 1980. ·

After the General Election of 1980, it was known that there would be a vacancy for the office of United States Attorney for the United States District Court for the Middle District of North Carolina. Smith, individually and through friends made applications for the post. Smith contends that he was being seriously considered for the post up until the time McDonald made the two communications that are the subject of this action.

On December 1, 1980, McDonald sent a letter to President-Elect Ronald Reagan in Arlington, Virginia. Copies were sent to: Barry M. Goldwater, Jr. (R), U.S. House of Representatives; Jack Kemp (R), U.S. House of Representatives; Edwin Meese, Chairman of the

Transition Team; and to the offices and staffs of U.S. Senator Jesse Helms and Congressman W. E. Johnston. (Complaint 15, attached to Defendant's Petition for Removal).

On February 13, 1981, McDonald sent a second letter to Reagan, this time with copies to: Edwin Meese, Barry Goldwater, Jr., Jesse Helms, William Webster, Director, F.B.I., and to the office and staff of Congressman Johnston. (Complaint, ¶ 6).

Smith contends that the letters contained libelous statements about him made by McDonald with the specific and malicious intent to harm Smith in his personal life and in his profession as an attorney. Smith alleges further that the communications were made with the express and malicious purpose of damaging Smith's chances to be appointed United States Attorney.1

In May of 1981, McDonald purchased land in Albemarle County, Virginia. (McDonald Affidavit filed August 25, 1981). McDonald also contracted for the construction of a private residence on that land. Id. As of the time that McDonald purchased land in Virginia, he had not registered to vote in North Carolina. Although he owned vehicles registered in North Carolina, he had not obtained a North Carolina driver's license. McDonald's household goods were not taken out of storage and while he was in this State, McDonald lived in a rented apartment. On the other hand, McDonald's place of business has, at all times pertinent to this action, been in North Carolina. On August 24, 1981, Smith filed this action in the state court.

MOTION TO REMAND

McDonald removed this action pursuant to the provisions of 28 U.S.C. § 1441. The removal provisions of 28 U.S.C. § 1441 are operative only when diversity of citizenship has been shown to exist. Ziady v. Curley, 396 F.2d 873 (4th Cir. 1968). "Citizenship" within the meaning of 28 U.S.C. § 1332, is synonymous with "domicile" for purposes of determining diversity. Griffin v. Matthews, 310 F. Supp. 341 (M.D.N.C. 1969), aff'd. 423 F.2d 272 (4th Cir. 1970). "Domicile" has been defined as residence in a given state coupled with an intention to remain in that state for an indefinite period of time. Id. at 343.

1 The letters are attached to Smith's state court Complaint as Exhibits A and B. The letters have been construed by Smith as accusing him of the following:

(a) violating the civil rights of various individuals while a Superior Court Judge;
(b) unlawfully imprisoning persons while he was a Superior Court Judge;

(c) criminal contempt;

(d) fraud and conspiracy to commit fraud;

(e) extortion or blackmail;

(f) perjury and subornation of perjury;

(g) professional misfeasance and malfeasance as a practicing attorney and as a Judge of the Superior Court of North Carolina;

(h) violations of the Code of Ethics as promulgated and adopted by the American Bar Association, the North Carolina Bar Association, and the North Carolina State Bar Association;

(i) wrongfully withholding evidence from the Court in an action where he appeared as an attorney for one or more litigants;

(j) violating direct orders of the Court in the trial of actions in which he appeared as an attorney for one or more litigants;

(k) violations of professional ethics and dishonesty;

(1) being a liar and a cheat; and

(m) denigrating the plaintiff's professional conduct as a Judge of the Superior Court and as a practicing attorney and as a person. (Complaint ¶ 7).

It is clear that the burden is on McDonald to establish by a preponderance of the evidence that he was a domiciliary of Virginia as of the time that the action was commenced against him in state court. Id. at 342. It is also clear that the issue of citizenship is to be determined by the Court. Webb v. Nolan, 361 F. Supp. 418 (M.D.N.C. 1972).

McDonald contends that it was never his intention to remain in North Carolina and that he was in North Carolina out of convenience to allow for the management of his business. Although the Court is hesitant to attach much credence to statements of intention, Id. at 421, the facts that have been established tend to bear out his statements. McDonald moved from California and placed his goods in storage. Within days he began a series of trips to the Charlottesville, Virginia, area for the express purpose of buying land upon which he was to build a private residence. During his stay in North Carolina he did not register to vote, even though he is apparantly a politically active person. Also, he stayed in a rented apartment. Finally, before the action was commenced against him in state court, he purchased land in Virginia and contracted to have a house built upon that land.

The Court concludes that McDonald did not have the requisite intent to remain in North Carolina and was therefore, not a domiciliary of this State at the time that the action was commenced. The question remains as to whether McDonald was a domiciliary of Virginia at the time suit was filed.

McDonald very clearly had the intent to establish a new domicile in Virginia prior to the time that suit was instituted. McDonald had also visited Virginia several times and made formal offers to purchase land in Virginia. The most significant act that McDonald had performed in order to carry out his intent to establish a new domicile is, of course, the actual purchase of land in Virginia. The Court concludes that McDonald had established domicile in Virginia prior to the time that suit was filed against him in state court. See Johnston v. Cordell National Bank, 421 F.2d 1310 (10th Cir. 1970).

Accordingly, Smith's motion to remand this case to state court as being improvidently removed is DENIED.

MOTION TO DISMISS

McDonald seeks dismissal of this suit pursuant to Fed.R.Civ.P. 12(b)(6). McDonald contends that the letters were submitted in connection with a judicial or quasi-judicial proceeding and for that reason were absolutely privileged. North Carolinia 2 adheres to the majority rule that defamatory statements made in the due course of a judicial proceeding are absolutely privileged. Bailey v. McGill, 247 N.C. 286, 100 S.E.2d 860 (1957). Such protection has also been extended to communications made in an administrative proceeding where the administrative officer or agency is exercising a judicial

2 Both parties at least tacitly agree that the law of North Carolina applies to this action in defamation. Since at least one act of publication occurred in North Carolina (letter sent to the office of Congressman Johnston) and since the alleged injury occurred in North Carolina, this Court will apply North Carolina law. Publication also occurred in Virginia and Washington, D.C.

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