asserted that they were read by other Members of Congress and were intended to influence not only the public but also other Members. While the Court acknowledged that the newsletters and press releases may have exerted some influence on other Members, it found that the defendant's actions were merely related to the legislative process, not essential to it: We may assume that a Member's published statements exert some influence on other votes in the Congress and therefore have a relationship to the legislative and deliberative process. But in Brewster, supra, at 512, we rejected respondents' expansive reading of the Clause. "It is well known, of course, that Members of the Congress engage in many activities other than the purely legislative activities protected by the Speech or Debate Clause. These include *** preparing socalled 'news letters' to constituents, news releases, and speeches delivered outside the Congress." There we went on the note that Johnson had carefully distinguished between what is only "related to the due functioning of the legislative process," and what constitutes the legislative process entitled to immunity under the Clause: "In stating that those things [Johnson's attempts to influence the Department of Justice] 'in no wise related to the due functioning of the legislative process' were not covered by the privilege, the Court did not in any sense imply as a corollary that everything that 'related' to the office of a Member was shielded by the Clause. Quite the contrary, in Johnson we held, citing Kilbourn v. Thompson, supra, that only acts generally done in the course of the process of enacting legislation were protected." In no case has this Court ever treated the Clause as protecting all conduct relating to the legislative process. [Id. at 131] Similarly rejected was the defendant's claim, supported by the court of appeals, that newsletters and press releases are protected activity. because they are part of the informing function of Congress. The Court made a distinction between activities by which Congress informs itself and activities by which Congress informs the public. While the former are protected by the Clause, the latter are not. In this regard the Court stated: Respondents also argue that newsletters and press releases are privileged as part of the "informing function" of Congress. Advocates of a broad reading of the "informing function" sometimes tend to confuse two uses of the term "informing." In one sense, Congress informs itself collectively by way of hearings of its committees. It was in that sense that Woodrow Wilson used "informing" in a statement quoted by respondents. *** It is in this narrower Wilsonian sense that this Court has employed "informing" in previous cases hold ing that congressional efforts to inform itself through com- The other sense of the term, and the one relied upon by respondents, perceives it to be the duty of Members to tell the public about their activities. Valuable and desirable as it may be in broad terms, the transmittal of such information by individual Members in order to inform the public and other Members is not a part of the legislative function or the deliberations that make up the legislative process. As a result, transmittal of such information by press releases and newsletters is not protected by the Speech or Debate Clause. Doe v. McMillan, 412 U.S. 306 (1973), is not to the contrary. It dealt only with reports from congressional committees, and held that Members of Congress could not be held liable for voting to publish a report. Voting and preparing committee reports are the individual and collective expressions of opinion within the legislative process. As such, they are protected by the Speech or Debate Clause. Newsletters and press releases, by contrast, are primarily means of informing those outside the legislative forum; they represent the views and will of a single Member. It does not disparage either their value or their importance to hold that they are not entitled to the protection of the Speech or Debate Clause. [Id. at 132–133 (footnote omitted)] As to the telephone calls to administrative agencies and the Senator's statement on the television and radio shows, the Court stated: From our conclusion *that the Speech or Debate Clause does not protect the republication of libelous remarks, it follows that libelous remarks in the follow-up telephone calls to executive agencies and in the television and radio interviews are not protected. Regardless of whether and to what extent The Speech or Debate Clause may protect calls to federal agencies seeking information, it does not protect attempts to influence the conduct of executive agencies or libelous comments made during such conversations. Cf. United States v. Johnson, 383 U.S. at 172; United States v. Brewster, 408 U.S., at 512–513 [Id. at 121, n. 10] The Court concluded by declaring that Dr. Hutchinson was not a public figure. As a result, the "actual malice" standard of proof was deemed inapplicable to the instant case. The Supreme Court then remanded the case to the Court of Appeals for the Seventh Circuit for further proceedings consistent with its decision. Justice Stewart, in an opinion concurring in part and dissenting in part, took issue with the majority's assertion that telephone calls to Federal agency officials may form the basis of an action for defamation. In his view such calls were a routine and essential part of Congressional oversight and should therefore be fully protected by the Speech or Debate Clause. The sole dissenter, Justice Brennan, would have affirmed the judgement below for the reasons expressed in his dissent in Gravel v. United States. Following remand, the Court of Appeals for the Seventh Circuit. in an order dated August 28, 1979, directed that the case be remanded to the district court for further consideration. This mandate was subsequently stayed, however, while Senator Proxmire's counsel considered, and ultimately filed, a petition for rehearing. On November 1, 1979, the order remanding the case was docketed in the district court; meanwhile, the petition for rehearing was being held in abeyance in the Seventh Circuit. Finally, after the parties reached a settlement, the circuit court, in an order dated April 15, 1980, sanctioned withdrawal of the petition for rehearing and amended its remand directive to instruct the district court to dismiss the action with prejudice. Status-The case was closed on May 30, 1980. The complete text of the June 26, 1979 opinion of the Supreme Court is printed in the "Recent Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1979. Ragas v. Davis Civil Action Nos. 77-3390 and 77-3391 (E. D. La.) The Congressional elections of 1976 resulted in seven contested elections. Pursuant to Rule X, 1. (i) (11) of the Rules of the U.S. House of Representatives, the Committee on House Administration undertook to resolve the various challenges by appointing a number of three-member ad hoc panels. One such panel was to investigate the validity of the Democratic primary contest in Louisiana between Richard A. Tonry and James A. Moreau. The panel was chaired by Representative Mendel Davis of South Carolina, and included among its professional staff Richard E. Moss, General Counsel to the Committee on House Administration, and John McGarry, Special Counsel to the Committee on House Administration. In October 1977, the election commissioners of Plaquemines Parish, Louisiana and the Parish Registrar of Voters filed identical petitions for damages in the district courts of Orleans and Plaquemines Parishes, Louisiana. The complaints alleged that defendants Mendel Davis, Robert E. Moss, and John McGarry made defamatory statements about the plaintiffs in the course of investigating the Moreau-Tonry dispute. Numerous other persons and organizations were also named as defendants. In November and December 1977, the actions were removed to the U.S. District Court for the Eastern District of Louisiana where they were subsequently consolidated. The defamatory statements complained of were allegedly made by Rep. Davis to news reporters during the ad hoc panel's investigation. The following statements, among others, were alleged by the plaintiffs to have appeared in New Orleans newspapers: "U.S. Rep. Mendel Davis, D-S.C. said Congressional Investigators in their probe of October 2 voting had found 'overwhelming fraud' by both sides in the election." (States Item, May 4, 1977) ""There were definitely irregularities on both sides,' Davis said." (Times-Picayune, May 5, 1977) While the plaintiffs conceded that neither Mr. Moss nor Mr. McGarry made any statements to the press, it was claimed that Mr. Moss and Mr. McGarry, along with Rep. Davis, prepared and disseminated to the public a report of their investigation. Allegedly this report contained the defamatory material. In February 1978, defendants Davis, McGarry and Moss filed a motion to dismiss the complaint. The defendants claimed that the acts complained of were done in the course of legislative activity for which they could not be questioned under the Speech or Debate Clause of the Constitution.1 On July 31, 1979 the defendants' motion to dismiss was denied. In its Memorandum-Order, the district court stated that whatever doubts existed as to whether statements to the press are protected by the Clause, were removed by the recent holding of the U.S. Supreme Court in Hutchinson v. Proxmire. (See p. 122 of this report for a discussion of that case.) In Hutchinson newsletters and press releases were held not to be protected. Accordingly, Congressman Davis' statements to the press would likewise be unprotected with respect to the allegedly defamatory report. The Court stated that under Gravel v. United States, 408 U.S. 606 (1972) and Doe v. McMillan, 412 U.S. 306 (1973), “Any private publication of a report is clearly not protected ***." [slip op., July 31, 1979, at 4] Thus, if the defendants caused a defamatory report to be circulated to the public, the Speech or Debate Clause would offer no protection. On August 29, 1979, defendants Davis, Moss, and McGarry filed a notice of appeal to the U.S. Court of Appeals for the Fifth Circuit from the district court order denying their motion to dismiss the complaint. On September 24, the defendants moved voluntarily to dismiss the appeal prior to any briefs being filed. (The motion initially was improperly addressed to the district court. The case had already been docketed in the court of appeals as No. 79-3126.) The dismissal was entered on October 10. On September 20, 1979, defendants Davis, Moss, and McGarry filed their answer to the original complaint. In it they asserted thirteen defenses including failure to state a claim upon which relief could be granted; lack of subject matter and personal jurisdiction; official privilege; immunity under the Speech or Debate Clause; protection under the First and Fourteenth Amendments: non-justiciability under political question doctrine; and insufficiency of service of process. Additionally, they claimed that the allegedly defamatory statements were true, were made within the lawful scope of Congressional duties, and were made with no malice toward the plaintiff nor in reckless disregard of the truth. On October 30, 1979, a conference was held to establish a schedule for discovery and other pre-trial motions. Trial was set for November 17, 1980. Subsequently, the action was dismissed as to a number of the non-Congressional defendants. On December 14, 1979, in an attempt to ascertain the precise nature of the alleged defamation, defendants Davis, Moss, and McGarry filed a request for the production of relevant documents from the plaintiffs and propounded as well their initial interrogatories. When 1 The Speech or Debate Clause of the U S. Constitution provides that "for any Speech or Debate in either House [U.S. Senators and U.S. Representtaives] shall not be questioned in any other Place." [art. I, § 6, cl. 1] a timely response was not received to these discovery requests, the defendants, on March 28, 1980, moved for a sanction of dismissal or, alternatively, to have the court compel a full and complete response from the plaintiffs. In a memorandum accompanying their motion, the defendants argued that: It is well settled that the object of the Speech or Debate Clause is not only to protect legislators and their aides, Gravel v. United States, 408 U.S. 606, 618, (1972), from the imposition of ultimate liability for the actions alleged to have injured the plaintiffs, but likewise from the harassment and inconvenience attendant upon preparing a defense against such allegations. Dombrowski v. Eastland, 387 U.S. 82, 85 (1967). Assuming that the Court, in denying defendants' Motion to Dismiss, has correctly exposed them to the rigors of a full-blown trial, nevertheless the plaintiffs should not be permitted to prolong the disruption associated with preparing for such a trial. Indeed, on a practical level, plaintiffs' failure to respond to the defendants' discovery precludes them from even embarking upon the unavoidably complex and lengthy discovery process necessitated by the nature of the allegations and the identity of these defendants at the time period in question. Plaintiffs' behavior constitutes "a petty discourtesy as well as an obstruction of discovery." Szilvassy v. United States, 82 FRD 752, 756 (S.D.N.Y. 1979). [Statements of Points and Authorities in Support of Congressional Defendants' Motion December 14, 1979 at 4-5] At a conference held on March 28, 1980, the plaintiffs were ordered to comply with the request for production and respond to the first interrogatories by April 30. At a status conference held on May 2, 1980, the plaintiffs were ordered to answer all interrogatories within two weeks, and the parties were directed to submit a status report on the case and the estimated time needed for discovery within 60 days. The November 17, 1980 trial date was continued, to be reset at a later time. In a report to the court submitted on July 2, 1980, counsel for the Congressional defendants indicated that they were currently assessing the terms of a proposed settlement. On November 26, 1980, the Department of Justice withdrew as counsel for the Congressional defendants, to be replaced by private attorneys. Status-The case is pending in the U.S. District Court for the Eastern District of Louisiana. Bodenmiller v. Stanchfield Civil Action No. 79-21814 (Sup. Ct. Suffolk County, N.Y.) On August 27, 1979, Frank Bodenmiller, a former employee of Congressman Thomas Downey of New York, filed suit in the state Supreme Court in Suffolk County, New York against the Congressman, his administrative assistant, Rosalie Cipola, and various employees of the U.S. Postal Service and members of its employees union. The complaint alleged that Mr. Bodenmiller, who in the course of his |