# Petition — Chamber of Commerce of the United States v. United Steelworkers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1116%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1975 - **Citation:** 423 U.S. 1033 ## Text Nof 3-485 f IN THE Supreme Court of the United States OcToOBER TERM, 1975 THE CHAMBER OF COMMERCE OF THE UNITED STATES oF AMERICA, Petitioner, v. UNITED STEELWORKERS OF AMERICA, AF L-CIO-CLC, and THE UNITED STATES District COURT FOR THE EASTERN DISTRICT OF MICHIGAN PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT GERARD C. SMETANA, WituiaM H. DuRoss, III, Borovsky, SMETANA, EHRLICH & KRONENBERG 2011 Eye Street, N.W. Suite 800 Washington, D. C. 20006 Attorneys for the Chamber of Commerce of the United States RicHaRD BERMAN Labor Relations Counsel, CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA 1615 H Street, N.W. Washington, D. C. 20006 Press oF Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C. sl a INDEX Page ee eC osc ccecueneveecsaneeene 1 PEE nan6 16546 Cekes eee seraevenntnensendes 2 I ns cd eeeeieunuananeeeaees 2 ORS GEE Tee BUUINOS 6 vn ccc casndccciccccsces 2 Statement: 4. The Order of the District Court .............. 4 B. The Decision of the Court of Appeals ........ 7 Reasons for Granting the Writ: I. The Court Must Resolve the Dilemma Which the District Court’s Discovery Order Places All Associations Who Engage in Litigation on Be- Se ee I I oc ccccucecaucadanes 7 II. There Must Be an Appeal Route Other Than Contempt To Obtain Judicial Review of a Pre- Trial Order Where That Order as a Practical Matter Determines the Validity of a Claim of Constitutional Immunity ................006- 14 A. 28 U.S.C. § 1291 authorizes an immediate appeal from pretrial orders without the ne- cessity of a contempt citation ............. 15 B. A Writ of Mandamus is appropriate to ob- tain review of a discovery order which im- pairs the free exercise of First Amendment EL 448o-ckand Aidedenaedehasdeweieniies 19 Conclusion ii Index Continued CITATIONS Page CAsEs: American Civil Liberties Union y. Jennings, 366 F. Supp. 1041 (D.D.C. 1973), appeal pending sub nom. Staats v. ACLU, (Sup. Ct. No. 73-1413) ... 9 Auto Workers v. National Right to Work Foundation, 376 F.Supp. 1060 (D.D.C. 1974), appeal dismissed, — F.2d —, 88 LRRM 2314 (D.C. Cir. 1974), cert. ee Ge Tee, EE 6 0 6k Such benefits had in fact been paid at various times to strik- ing employees of Dow during the course of strikes by the Steel- workers at Dow’s Midland and Bay City, Michigan facilities. ®The Steelworkers were granted leave to intervene on Septem- ber 5, 1972. The Steelworkers are the certified bargaining repre- sentative of the striking employees of Dow. 6 34a-38a).' The district court rejected the Chamber’s as- sertion of constitutional privilege, because in its view the Chamber had not ‘‘clearly documented”’ the harm to its members which would result once the Steel- workers obtained the requested information. The dis- trict court further ruled that the names of the Cham- ber’s Michigan members were relevant to this action and necessity for the Steelworkers defense (Pet. App. p. 36a). The court also concluded that, in bringing this action, the Chamber waived any constitutional privilege against disclosure of its members’ identities which it may have enjoyed (Pet. App. p. 37a). On October 4, 1974, the district court issued an order compelling the Chamber to furnish the Steelworkers with a list of its Michigan members subject to MESA within 30 days (Pet. App. pp. 7a-8a). The court issued a protective order which provides (Pet. App. p. 8a) : Defendant-intervenor United Steelworkers of America, AFL-CIO-CLC shall not make use of the list of member business firms which plaintiff The Chamber of Commerce of the United States of America must provide in its answer to Inter- rogatory No. 1 of the Revised Amended Inter- rogatories or disclose the identity of such mem- ber business firms except to defendant-intervenor United Steelworkers of America, AFL-CIO- CLC’s employees and then only when necessary to prepare for and assist in the defense of this action. On October 18, 1974, the Chamber moved the dis- trict court to reconsider its October 4, 1974 Order *In addition, the district court held that the Chamber must respond to certain other Interrogatories. In accordance with that holding and the district court’s subsequent October 4, 1974 order, the Chamber timely answered the Steelworkers’ revised and amended Interrogatories. ee 7 and submitted comprehensive documentary evidence of the irreparable injury which disclosure would cause. This motion was denied on October 29, 1974 (Pet. App. p. 43a). Thereafter, the Chamber moved™~ the district court to amend its October 4, 1974 Order to permit an immediate appeal pursuant to 28 U.S.C. § 1292(b) (Pet. App. pp. 44a-48a.) The motion was de- nied by order dated November 6, 1974 (Pet. App. p. 49a). On November 4, 1974, the Chamber filed a notice of appeal from the district court’s discovery order (Pet. App. p. 50a), and on November 6, 1974, the district court stayed its order pending appellate review (Pet. App. p. 49a). B. The Decision of the Court of Appeals The court of appeals concluded it had no jurisdic- tion under 28 U.S.C. § 1291 to hear an appeal of a discovery order, and suggested that the Chamber ‘‘can obtain effective review ... by failing to comply with the order and perfecting an appeal shouid the district court impose [contempt] sanctions under Rule 37(b) F.R.C.P.”’ (Pet. App. p. 5a). With respect to the Chamber’s reliance upon the All Writs Act (28 U.S.C. §1651(a)) as a basis for jurisdiction, the court ruled that the Chamber ‘‘failed to meet its burden of showing extraordinary circumstances which would entitle it to [a writ of] mandamus’’. (Pet. App. p. 6a). REASONS FOR GRANTING THE WRIT L The Court Must Resolve The Dilemma Which The District Court’s Discovery Order Places All Associations Who En- gage In Litigation On Behalf Of Their Members. A writ of certiorari is warranted to decide whether an association must forfeit the First Amendment rights 8 of its members to support anonomously association lit- igation whenever the association institutes litigation on behalf of its injured but unidentified members. To institute litigation an association must allege injury to itself or at least one of its members. Warth v. Seldin, — US. —, 95 S.Ct. 2197, 2213 (1975); Sierra Club v. Morton, 405 U.S. 727, 735 (1972) ; NAACP v. Alabama, 3597 U.S. 449, 458-60 (1958). Here, the Chamber al- leged the injury of its member Dow and that of its other Michigan members who subsidize Michigan’s pay- ments to striking employees (Pet. App. p. 13a). The district court held that by pleading the injury of these Michigan members, the Chamber waived any First Amendment privilege which might bar disclosure. This ruling constitutes a substantial abridgement of the rights of all associations to engage in interest litigation on behalf of their anonmous members. All member- ship associations are now required to choose between disclosing the identities of their members in order to establish standing or forego entirely initiating any litigation. This imposed choice between litigation or membership anonymity restrains fundamental free- dom of association rights and conflicts with the rulings of this Court. The Court has consistently recognized that the right of freedom of association guaranteed by the First Amendment protects the anonymity of persons who associate together to advance common interests or com- mon causes which they espouse. NAACP vy. Alabama, supra, 357 U..S at 462; Gibson v. The Florida Legisla- tive Investigative Committee, 372 U.S. 539 (1963); Bates v. City of Little Rock, 361 U.S. 516 (1960). This constitutional right specifically includes advancement of commonly held views and social goals through liti- gation. United Trans. Union v. State Bar of Michigan, 9 401 U.S. 516, 585-86 (1971). This essential means of promoting goals and securing objectives depends upon the support of individual members. Unless anonymity can be guaranteed, such support is likely to cease en- tirely, particularly where the association espouses un- popular and controversial beliefs. NAACP v. Alabama, supra, 357 U.S. at 459; Bursey v. United States, 466 F.2d 1059, 1085 (9th Cir. 1972). Identification, particu- larly by a historical adversary, has a ‘‘chilling”’ effect ° upon the willingness of the member to continue to es- pouse association goals. This is so because identification places the member in a highly visible position, which, in turn, renders the member subject to the risk of var- ious forms of retaliatory pressures.* As a three judge panel of the United States District Court for the Dis- trict of Columbia recently remarked: ‘“See Ballard v. Allegheny Airlines, Inc., 54 F.R.D. 67, 69 (E.D. Pa. 1972); La Rocea v. State Farm Mut. Auto. Ins. Co., 47 F.R.D. 278, 282 (W.D. Pa. 1969); United States v. Glaxo Group Ltd., 302 F.Supp. 1, 17 (D.D.C. 1969), rev’d on other grounds, 410 U.S. 52 (1973) ; Cedolia v. C.S. Hill Saw Mills, Ine., 41 F.R.D. 524, 527 (M.D.N.C. 1967); McCall v. Overseas Tank- ship Corp., 16 F.R.D. 467 (S.D.N.Y. 1954); Harvey v. Eimeo Corp., 28 F.R.D. 380, 381 (E.D. Pa. 1961); C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2023 at 194 (1970). 4la and contents of documents applies here and requires ad- herence to the strictures of 26(b)(4) only when the substance of those materials is sought. The other leg of Dow’s work product argument con- cerns the necessity for Dow’s attorneys to sift through their files to determine the materials in their possession ‘‘relating to’’ the various subjects about which the Steel- workers inquire. This, they claim, requires them to formu- late and reveal their theories as to what evidence supports their allegations, and that this is undiscoverable work product. Finally, Dow claims that the information sought in numbers 2, 4 and 6 is in large part equally available to the Steelworkers, and it would therefore be unduly bur- densome to require it to compile all the information re- quested. Dow does not object to identifying those strikes which it contends have been affected by unemployment compensation payments to strikers, but only to compiling the details requested concerning them. Having considered these objections, the court rules that the interrogatories to Dow must be answered. ATTORNEY F'EkEs The court declines to dispose of the matter of assessing attorney fees at this juncture. This will await the outcome of this litigation. The court notes that there is an insuff- cient basis to award fees to either side. There may well have been merit in both positions. Having said that, the court notes that counsel will be well advised to observe Judge Murrah’s admonition that this cause is now busi- ness in which the public is interested. This is no longer a private dispute and, in any event, it is not a brawl. Counsel for the intervenor defendant, United Steel- workers of America, AFL-CIO-CLC, is requested to pre- sent an appropriate order. 42a /s/ JoHN FEIKENS John Feikens United States District Judge Datep: Detroit, Michigan June 27, 1974 43a (Caption omitted in printing) Memorandum Opinion Denying Motion for Reconsideration Plaintiff Chamber of Commerce has filed a motion re- questing the court to reconsider its Memorandum Opinion of June 27, 1974 requiring that the Chamber answer certain interrogatories. Plaintiff Dow Chemical Company has notified the court it fully intends to comply and will answer the interro- gatories. The motion is denied. The basic concern of the Chamber relates to disclosure of its membership list. Its main arguments again relate to speculative fears of future harm to its members and itself from disclosure. These fears are largely premised on public dissemination of the list. This court has entered a strong protective order which restricts disclosure of the list to counsel in this case and to the parties only as is necessary to aid in counsel’s preparation in this case. This order will protect the list from public disclosure. The court is ready to back up its order fully. This court has a high regard for the integrity of the attorneys and their awareness of their duties as officers of this court. It will not presume its order will be violated. The remaining contentions are without merit. Accordingly, the motion for reconsideration is denied. An appropriate order may be submitted. /s/ Joun FErKENS John Feikens United States District Judge Datep: Detroit, Michigan October 29, 1974 44a (Caption omitted in printing) Motion to Amend Order to Include Statement Under 28 U.S.C. § 1292(b) Plaintiff Chamber of Commerce of the United States of America (‘‘Chamber’’), by its attorneys, hereby moves the Court to amend its Order of October 8, 1974 in the captioned action to include the statement prescribed by 28 U.S.C. §1292(b) so that the Chamber may seek an interlocutory appeal to the United States Court of Appeals for the Sixth Circuit. In support whereof, the following is shown: I. SratremMent or Facts 1. The Chamber is a plaintiff in the captioned action, which action involves the question of whether the Michigan Employment Security Commission may lawfully provide benefits to striking employees. 2. On July 9, 1973, the Intervenors in this suit, the United Steelworkers of America, AFL-CIO-CLC (‘‘Steel- workers’’), served upon the Chamber a set of interroga- tories directing the Chamber to identify those of its mem- bers who are subject to the Michigan Employment Securi- ty Act (‘‘MESA’’) and further directing the Chamber to (1) identify those of its members whose employees were engaged in a strike during the period of January 1, 1968 to April 1, 1973 (Interrogatories 2, 3, 4, 5 and 6); (2) provide information concerning strikes and strike settle- ments within the State of Michigan (Interrogatories 14, 16 and 18); and (3) identify various studies and docu- ments which the Chamber might have in its possession (Interrogatories 13, 15, 17, 19, 20, 21 and 22). Because the Chamber had no knowledge or documents relating to the subjects of those interrogatories, the Chamber was unable to provide any information responsive to those interrogatories. Having no such information in its posses- sion, the Chamber took the position that the identity of 45a its members, standing alone, could be of no relevance to the issues of this case or value to the Steelworkers in the prepaartion of their defense of this action. 3. On October 8, 1974, this Court ordered the Cham- ber to, inter alia, identify to the Steelworkers those of its members subject to MESA. On October 18, 1974, the Chamber moved the Court for reconsideration of its Order. The Court denied reconsideration on October 29, 1974. 4. Disclosure of the Chamber’s membership may re- sult in infringement of the First Amendment rights of the Chamber’s members. Moreover, at this stage of the proceedings in the district court, disclosure of the mem- bership list may result in extensive, time-consuming and costly discovery by the Intervenors which, in view of the controlling questions of law involved, may be unnecessary and improper. The allowance of an immediate appeal from this Court’s October 8, 1974 Order would materially advance the ultimate termination of the litigation by cut- ting short any improper discovery and would protect the Chamber and its members from irreparable injury. Il. Questions or Law 5. The controlling questions of law as to which there is substantial ground for difference of opinion are: A. Whether, in view of the Supreme Court’s opin- ion in Super Tire Engineering Co. v. McCorkle, —— U.S. ——, 40 L.Ed. 1 (1974)?, the identity of Chamber members who are subject to the Michigan Employ- ment Security Act is of any possible relevance to the issues of this case? *In Super Tire, the Supreme Court noted that: “the availability of state . .. assistance for striking workers . - . pervades every work stoppage, affects every existing col- lective bargaining agreement, and is a factor lurking in the background of every incipient labor contract.’’ 40 L.Ed. at 9. 46a B. Whether, where the Intervenors have failed to show the relevance of or a compelling need for such ‘nformation and the Chamber has demonstrated the irreparable harm which it and its members would be caused, the Court should order disclosure of the iden- tity of Chamber members who are subject to the 47a as to which there is substantial ground for difference of opinion and that an immediate appeal may materially ad- vance the ultimate termination of the litigation; and, fur- ’ Michigan Employment Security Act? See NAACP v. Alabama, 357 U.S. 449 (1958) ; Bates v. City of Little Rock, 361 U.S. 816 (1960); American Civil Liberties Union v. Jennings, 366 F.Supp. 1041 (D.D.C. 1973), appeal pending, sub nom Staats v. ACLU, (Sup. Ct. No. 73-1413); and United States v. National Commit- tee for Impeachment, 469 F.2d 1135 (D.C.Cir. 1972). C. Whether, in the circumstances of this case, it violates the constitutional right of the Chamber’s members to freedom of association to disclose the identity of Chamber members who are subject to the Michigan Employment Security Act? See NAACP v. Alabama, 357 U.S. 449 (1958) ; Bates v. City of Little Rock, 361 U.S. 816 (1960); American Civil Liberties Union v. Jennings, 366 F.Supp. 1041 (D.C.C. 1973), appeal pending, sub nom Staats v. ACLU, (Sup. Ct. No. 73-1413); and United States v. National Commit- tee for Impeachment, 469 F.2d 1135 (D.D.Cir. 1972). 6. The conflict between the Cour*’s Order of October 8 1974 and the authorities cited above, in the Chamber’s Motion for Reconsideration and its supp°..ing memoranda demonstrate that a substantial basis exists for a differ- ence of opinion on the legal questions involved, and that such legal questions will control and determine the course of the litigation herein. Appellate resolution of these ques- tions would provide needed guidance and would materi- ally advance the termination of the litigation. Wuererore, the Chamber requests that the Court amend its Order of October 8, 1974, by including in the Order a finding that there is involved a controlling question of law Respectfully submitted, /s/ Ricuarp Berman Richard Berman Labor Relations Counsel CHAMBER OF COMMERCE OF THE Unrtep States 1615 H Street, N.W. Washington, D.C. 20006 /s/ Gerarp C. Smetana . Gerard C. Smetana 233 South Wacker Drive Chicago, Illinois 60684 /s/ Rosert J. Finke Robert J. Finkel Levin, Levin, Garvert & Dit 1250 Penobscot Building Detroit, Michigan 48226 /s3/ Jerry KronensBerc Jerry Kronenberg Borovsky, Euruicn & Kronensera 120 South LaSalle Street Southe 1820 Chicago, Illinois 60603 Attorneys for the Chamber of Commerce of the United States 48a Of Counsel: Auan Raywmp Burt R. Braverman Coie, Zytstra & Raywip 2011 Eye Street, N.W. Washington, D.C. 20006 (202) 659-9750 November 4, 1974 (Certificate of Service Omitted in Printing) Date—1974; Proceedings. Oct. 18—129. Motion by Chamber of Commerce of the United States of America for reconsid. that part of its order of Oct 8/74 which compels the chamber to dis- close the list of the chamber’s members who are subject to the Michigan Employment Security Act, certificate of service. BA Oct. 21—130. Certificate of service. Oct. 23—131. Proof of service. Oct. 29—132. Memorandum opinion denying motion for re- consideration, filed and entered. Nov. 4—134. Notice of appeal of the Chamber of Com- merce of the United States of Amer. for stay pend- ing appellate review, certificate of service. BA Nov. 4—134.— Notice of appeal of the Chamber of Com- merce of the United States of Amer. Nov. 4—135. Letter directed to attorney re: appeal. Nov. 4—136. Proof of mailing. — Nov. 4—137. Motion of the Chamber of Commerce of the United States of America to amend order to include statement under 28 U.S.C. 1292(b) and certificate of service. (points and authorities attached) Nov. 5—___. Pre-trial had Nov. 6—138. Order that the plaintiff’s motion for stay pend- ing appellate review and that the portion of the court’s October 8, 1974 order directing the Chamber to dis- close its membership list to the intervenors is hereby stayed until completion of appellate review, filed and entered. Nov. 6—139. Order denying motion to amend order to in- clude statement under 28 USC 1292(d), filed and en- tered. Nov. 12—140. Certificate of service. Nov. 13—141. Answers of Chamber of Commerce of the United States of America to interrogatories, certificate of service and affidavits (2). 50a Nov. 14—142. Stipulation and order that the time to re- spond to interrogatories served upon it, Dow Chemical Company, by defendant-intervenors, United Steelwork- ers of America is extended from Nov 7/74 to and through Dee 9/74, filed and entered. (dated Nov 12/ 74) Nov. 14—143. Notice of final conference set for April 14/75. Nov. 25—144. Order of CCA granting plaintiff-appellant’s motion for stay pending appeal. Dec. 9—145. Stipulation and order that the time within which plaintiff is required to respond to interrogatories served upon it by defendant-intervenor, United Steel- workers of America is hereby extended from Dec 9/74 to and through Dee 23/74, filed and entered. (Caption omitted in printing) Notice of Appeal Notice is hereby given that the Chamber of Commerce of the United States of America, plaintiff in the captioned action, hereby appeals from that portion of the Order en- tered by this Court in this action on October 8, 1974, which ordered the Chamber to disclose to the Intervenors United Steelworkers of America, AFL-CIO-CLC, a list of the Cham- ber’s members who are subject to the Michigan Employ- ment Security Act. November 4, 1974 (Certificate of Service omitted in printing) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1116%3A1. Public record. Not legal advice.