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mire, 443 U.S. 111 (1979). The court also dismissed the Congressional defendants' contention that the broadcast was justified in furtherance of the "informing function" of Congress. Although the court insisted that it did not question the value of that function, it concluded that there was "no legitimate reason for using it as a means of protecting the publication of materials injurious to private individuals.” [Id. at 1155]

With respect to the "more difficult question" of the taping of the meeting, the court found that without deciding "whether the actions. of the congressional defendants were unlawful or unconstitutional, and, if so, if other defenses are available, . . . there is sufficient evidence in the record which affords more than merely colorable substance" to plaintiff's claims. [Id. at 1156] The court noted that the defendants had ample opportunity to protect themselves by seeking judicial permission for the taping prior to the meeting but had failed to do so.

With respect to the doctrine of official immunity, the court found "no justifiable reason for affording the congressional defendants absolute official immunity when these officials are not deserving of absolute protection under the Speech or Debate Clause. The right of legislative officials to absolute immunity is limited to the protection accorded by the Speech or Debate Clause." [Id. at 1158]

On the same day that the written opinion was issued a hearing was held before the court on ABC's motion to dismiss Counts II and IV of the complaint, and the motion of defendant Osmer to dismiss the complaint in its entirety. In an order filed on November 24, 1980, Judge Northrup granted the motions only as to Count II, holding that because one of the parties consented to the taped conversation there was no viable Fourth Amendment claim. The judge denied the motions to dismiss the remaining counts of the complaint.

On November 25, 1980, the Congressional defendants renewed their motion to dismiss Count II of the complaint as to them, based on the court's holding with respect to ABC that the Fourth Amendment could not be violated where consent to record was conferred by a participant to a conversation. Simultaneously, the Congressional defendants filed a motion and accompanying memorandum seeking reconsideration of the court's November 14 order. The crux of the reconsideration motion was that allegations of conduct constituting neither "taping" nor "broadcasting" pervaded the complaint and these allegations involved preparatory acts within the "legitimate legislative sphere." The memorandum argued that the court had to decide the immunity issues on the basis of all the conduct allegedly committed by the Congressional defendants, "rather than limiting its discussion to the taping and subsequent broadcasting, actions which the Amended Complaint does not even charge against Congressional defendants." [Memorandum of Points and Authorities in Support of Reconsideration, November 25, 1980, at 41 The memorandum also attacked the court's opinion for undermining the concept of legislative immunity by seemingly adopting an "illegality exception" when a plaintiff simply alleged a statutory or constitutional violation. In this regard, the Congressional defendants stated:

To read McSurely. Dombrowski, and the Gravel dicta as creating an "illegality" exception broad enough to encompass

all allegations otherwise actionable before the judicial branch
is to read legislative immunity out of the Constitution. If a
legislator can be forced to fully defend against any cause of
action or claim actionable at law, however frail, then legisla-
tive immunity provides no greater protection than a motion
to dismiss under the Federal Rules of Civil Procedure. The
entire history of legislative immunity must be ignored to
countenance such a ruling. [Id. at 10]

The motion to reconsider was opposed in a filing by the plaintiff on December 10, 1980, which took the position that all the defendants engaged in a conspiracy against Mr. Benford of which the taping and broadcasting was an integral part.

On January 14, 1981, the court issued an order granting the motion of the Congressional defendants to dismiss Count II of the complaint and denying the request for reconsideration. Judge Northrup, in rejecting the reconsideration arguments of the defendants, explained:

The congressional defendants insist that the arrangements made prior to the sales meeting must be distinguished from the meeting itself. It is fair to infer that the congressional defendants knew that the meeting was to be taped and that what they claim to be legitimate investigative activity was done with an eye toward the sales meeting. The many acts that the congressional defendants claim must be separately considered were allegedly part of a scheme that culminated with the meeting of November 3. The Court's judgment is unchanged that the preparatory conduct must be considered in conjunction with the taped meeting.

In so deciding, this Court does not intend to suggest that legislative investigations are unprotected. It merely asserts that legislative officials who engage in allegedly illegal conduct while gathering information are not absolutely immune. [Memorandum, January 14, 1981, at 4]

On January 21, 1980, the Congressional defendants filed a notice of appeal of the court's November 14 order to the U.S. Court of Appeals for the Fourth Circuit. [No. 81-1200]

Status-The case is pending in the U.S. Court of Appeals for the Fourth Circuit. Motions have been filed in the district court to stay all proceedings, including discovery, during consideration of the case by the circuit court.

The complete text of the November 14, 1980 memorandum of the district court is printed in the "Decisions" section of this report at p. 269.

Chase v. Kennedy

No. 77-2652 (9th Cir.), cert. denied, No. 79–5315 (U.S. Supreme
Court)

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Trueman E. Chase, a resident of California, who had been unable to resolve a dispute with the Social Security Administration, sent a document styled "Congress of the United States of America Petition for Redress" to Senator Edward Kennedy of Massachusetts, intending for Senator Kennedy to present the petition to the Congress or one of its committees. Instead, because Mr. Chase was a resident of

California, Senator Kennedy forwarded the petition to Senator Alan Cranston of California.

Senator Kennedy advised Mr. Chase that he had forwarded the petition to Senator Cranston. Mr. Chase then wrote to Senator Adlai E. Stevenson III, Chairman of the Senate's Select Committee on Ethics, protesting Senator Kennedy's action. Senator Stevenson forwarded this letter to Senator Cranston and advised Mr. Chase that he had done so. Upon receipt of Mr. Chase's petition at his Washington, D.C. office, Senator Cranston forwarded it to his San Francisco office. Mr. Chase then filed this action asserting that Senators Kennedy, Stevenson, and Cranston deprived him of his First Amendment right to petition the Government for a redress of grievances.

On July 12, 1977, the U.S. District Court for the Southern District of California issued its decision. Judge Howard B. Turrentine dismissed the action, concluding that Mr. Chase had not been denied his right to petition the Government. Rather he "has confused his right to petition with a supposed right to have his petition granted or acted upon in a certain way. But no such right is found in the Constitution.” [Chase v. Kennedy, Civil Action No. 77–305-T (S.D. Cal. 1977), slip op. at 2]

As to the actions of the Senators, the court concluded that whatever action a Senator determines to take with petitions is "absolutely within his discretion and is not a proper subject of judicial inquiry, even if it might appear that he may be grossly abusing that discretion." [Id. at 3]

On July 18, 1977, Mr. Chase filed a notice of appeal to the U.S. Court of Appeals for the Ninth Circuit. He also filed a notice of direct appeal to the U.S. Supreme Court on September 7, 1977, which was returned to him by the assistant clerk because of its "failure to comply to any extent with the Court's Rules of Procedure."

On April 11, 1979, a stipulation was filed in the Ninth Circuit to waive oral argument, and the case was submitted on briefs. On August 6, 1979, the ruling of the district court was affirmed by the circuit court which said:

Appellant is confusing his right to petition with the supposed right to have it acted upon in a certain way. There is no authority to support the existence of the latter alleged right, and common sense would dictate otherwise, as an adoption of appellant's contention would create an untenable situation whereby each Senator would have to placate every constituent who wrote to him/her asking for some form of relief or otherwise be liable [Chase v. Kennedy, No. 77-2652 (9th Cir. 1979), slip op. at 1]

On September 7, 1979, Mr. Chase filed a petition for certiorari in the U.S. Supreme Court, seeking review of the Ninth Circuit decision. The petition was denied on October 29, 1979. [444 U.S. 935]

Status-The case is closed.

The complete text of the July 12, 1977 opinion of the district court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress. Part 2, August 15, 1977.

The complete text of the August 6, 1979 opinion of the circuit court is printed in the "Decisions" section of this report at 359.

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Clancey v. Albert

No. 77-3010 (9th Cir.), cert. denied, No. 79-191 (U.S. Supreme
Court)

Michael Patrick Clancey, a resident of the 40th Congressional District of California, filed this complaint on March 25, 1976, in the U.S. District Court for the Central District of California. In it he named as defendants Representative Carl Albert, individually and as Speaker of the U.S. House of Representatives; Representative John J. Flynt, individually and as Chairman of the House Committee on Standards of Official Conduct; Representative Andrew J. Hinshaw, individually and in his official capacity as a U.S. Congressman; Edmund L. Henshaw, Jr., individually and in his official capacity as Clerk of the U.S. House of Representatives; and the U.S. House of Representatives.

The complaint alleged that the defendants denied the plaintiff and other U.S. citizens residing within the 40th Congressional District of California their constitutional right to be represented in the House of Representatives by enforcement of a rule which prevented Rep. Hinshaw, who had been convicted in the California courts on two felony counts unrelated to his service in Congress, from voting or participating in Congressional matters. Rule XLIII, clause 10 of the House of Representatives states:

A Member of the House of Representatives who has been convicted by a court of record for the commission of a crime for which a sentence of two or more years' imprisonment may be imposed should refrain from participation in the business of each committee of which he is a member and should refrain from voting on any question at a meeting of the House, or of the Committee of the Whole House, unless or until judicial or executive proceedings result in reinstatement of the presumption of his innocence or until he is reelected to the House after the date of such conviction.

Mr. Clancey argued that Rule XLIII, clause 10, was unconstitutional in that it contravened Article I, Section 5 and other provisions of the U.S. Constitution and thereby resulted in taxation without representation.

He also argued that the Rule should be replaced by a House proposal to amend the Constitution to provide qualifications for Members of Congress in addition to those prescribed in Article I, Section 5.

On June 2, 1976, while this action was pending in the district court, Mr. Clancey filed in the U.S. Supreme Court a motion for leave to file a petition for a writ of mandamus commanding the defendants to vacate Rule XLIII, clause 10. The motion also asked that a writ of prohibition be issued barring the defendants from enforcing that provision. On July 16, 1976, the defendants filed an opposition, stating that the Supreme Court had neither original nor appellate jurisdiction in the matter. On October 4, 1976, the Court denied Mr. Clancey's motion to file his petition.

On June 18, 1976, defendants Albert and Flynt filed a motion to dismiss on the grounds that (1) the court lacked jurisdiction over the subject matter of the complaint; (2) the U.S. House of Representa

tives could not be sued in that name; (3) the action against the defendant Congressmen was barred by virtue of the Speech or Debate Clause 1; (4) venue was improper; and (5) the court lacked personal jurisdiction over the defendant Congressmen.

On July 27, 1976, the district court entered orders:

(1) dismissing the House of Representatives from the action on the ground that the action against it was barred by the doctrine of sovereign immunity; and (2) dismissing Congressmen Albert and Flynt from the action on the ground that the action against them was barred by the Speech or Debate Clause.

On April 4, 1977, the district court dismissed the action as moot. On April 19, 1977, the plaintiff filed a notice of appeal.

On July 5, 1979 the decision of the district court was affirmed by the U.S. Court of Appeals for the Ninth Circuit. It was held that since Rep. Hinshaw had been defeated in his reelection efforts, and the likelihood that the constituent would again reside in a district whose elected representative was convicted of a crime while serving was too remote to support a reasonable expectation that the rule would again affect his representation, the case was moot.

On August 6, 1979, Mr. Clancey filed a petition for writ of certiorari in the U.S. Supreme Court. The petition was denied on October 15, 1979 [444 U.S. 916]

Status-The case is closed.

Murray v. Morton

Civil Action No. 80-1475 (D.D.C.)

On June 13, 1980, Jon Garth Murray, Director of the American Atheist Center, 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 the Speaker of the House; Warren G. Magnuson, the President Pro Tempore of the Senate; President of the Senate Walter Mondale; and the Chaplains of the House (James David Ford) and the Senate (Edward L. Elson). 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 of Columbia 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 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. Representatives] shall not be questioned in any other Place." [art. I, § 6, cl. 1]

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