Petition — Laborers International Union v. Marshall

Supreme Court, U. S,

™ FILED

| MAR 15 1977

MICHAEL RODAK, JR., CLERK

IN THE .

Supreme Court of the Gnited States

October Term, 1976

76-1280

No.

LABORERS INTERNATIONAL UNION OF NORTH

AMERICA, AFL—CIO, LOCAL NO. 720,

Petitioner,

vs.

WILLIAM J. USERY, SECRETARY

OF LABOR.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Alan A. Armour, Esq.

1234 Bannock Street

Denver, Colorado 80204

Attorney for Petitioner

ELECTRONIC STENCIL SERVICE, DENVER

I tg tte a bea Oe eee he AO oN 1

Tk he ee Pees fe Ne 2

Gb ewe twee unn 2

Statutory Provisions Involved. ................ 2

I oS ns ke es eta ew ae we 2

Réasons for Granting the Writ

I. An Important Question of Federal Law Which

Has Not Been But Should Be Decided by This

Court ts Present im This Case... . 2... 2 2 eee 4

I ia, Or Sedat) > MN ied re SE ee ak 6

TABLE OF AUTHORITIES

Cases

Bell vs. Swift, 283 F.2d 407 (Sth Cir. 1960). ........., 5

Chatman vs. American Export Lines,

eee eee Pee eee eT e eee 4

G. F. Heaublien Bros. vs. Bushnill Wine and

I: 4

Hickman vs. Taylor, 329 U.S. 495, 91 L.Ed. 451,

Se IG So eg el ed ew Ste ee 5

Newell vs. Phillips Petroleum Co., 144 F.2d 338,

I en ee ee i 5

il

Ronoe vs. Panhandle Eastern Pipe Line Company,

ne Oe) SOD. ee eee

Roviaro vs. United States, 353 U.S. 53,

1 L.Ed.2d 639, 77 S.Ct. 623 (1956). .......... 4,5,6

U. S. vs. Hemphill, 369 F.2d 539 (4th Cir. 1966)... ....

Federal Statutes

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IN THE

Supreme Court of the GQnited States

October Term, 1976

No.

LABORERS INTERNATIONAL UNION OF NORTH

AMERICA, AFL—CIO, LOCAL NO. 720,

Petitioner,

Vs.

WILLIAM J. USERY, SECRETARY

OF LABOR.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Petitioner respectfully prays that a writ of certiorari issue to

review the judgment and opinion of the United States Court of

Appeals for the Tenth Circuit entered in this matter on January

3, 1977, and to which a Petition For Rehearing was denied

January 21, 1977.

OPINIONS BELOW

The judgment of the Court of Appeals of January 3, 1977,

which is herein sought to be reviewed, is reprinted in separate

appendix to this Petition, p.7. The Order of the United States

oxflies

District Court for the District of Colorado entered on October

30, 1975, is reproduced in the appendix at p. 12.

JURISDICTION

The judgment of the Court of Appeals was entered on Janu-

ary 3, 1977. Petition For Rehearing was timely filed and denied

on January 21, 1977. The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. §1254(1).

QUESTION PRESENTED

May the government invoke an “informer’s privilege” in a

civil proceeding under 29 U.S.C. 482 (Landrum-Griffin Act) so

as to deprive its opponent of relevant and necessary informa-

tion to prepare a proper defense.

STATUTORY PROVISIONS INVOLVED

This cause involves the Labor Management Reporting and

Disclosure Act of 1959, (Landrum-Griffin Act), 29 U.S.C. 482,

which is reproduced at p. 17 of the appendix.

STATEMENT OF THE CASE

This cause was instituted by the Secretary of Labor against

Petitioner under the Labor Management Reporting and Disclos-

ure Act (LMRDA) of 1959 (29 U.S.C. 482, et seq.) (Landrum-

Griffin Act), seeking an order of the Court requiring a new

election of Union officers to be supervised by the Secretary.

In the complaint, the government contended that the election

of officers of the local Union on June 8, 1974 was improper, in

that Union members were not allowed to vote for the candi-

dates of their choice and Union funds were allegedly expended

to promote the candidacy of certain members. LMRDA permits

=

a member of a labor organization who has exhausted the avail-

able remedies under the Union constitution to file a complaint

with the Secretary of Labor challenging an election of Union

officers. The Secretary is empowered to investigate such com-

plaint and if he finds probable cause to believe that a violation

has occurred, brings a civil action against the labor organization

to set aside the election, and to direct the conduct of a new

election under the supervision of the Secretary of Labor. The

District Court is empowered to declare the election to be void,

and direct the conduct of a new election under the supervision

of the Secretary, upon an express finding that a violationpef

LMRDA may have affected the outcome of the election.

Subsequent to the lodging of the complaint, Petitioner sought

to discover the fruits of the government’s required factual in-

vestigation by propounding written interrogatories. Among

other matters sought to be discovered, certain of the interroga-

tories attempted to discern the name and address of all persons

interviewed or contacted or from whom statements were taken,

or with whom discussions were had during the investigatory

portion of the proceedings. It was also attempted to discover

the content of all statements obtained from potential witnesses.

The text of the interrogatories propounded is set forth in the

appendix herein.

The government objected to answering certain interrogatories

claiming an “informant’s privilege’. Petitioner moved to com-

pel answers and subsequent to hearing, the Court entered an

order compelling and directing the Secretary of Labor to answer.

The Secretary refused to obey and upon motion, the District

Court dismissed the action. Appeal was taken by the Secretary

to the United States Court of Appeals for the Tenth Circuit,

and on January 3, 1977, that Court reversed the District Court

holding that there is an “‘informant’s privilege” which was ap-

plicable to this cause but without qualifying the privilege at all.

xls

REASONS FOR GRANTING THE WRIT

AN IMPORTANT QUESTION OF FEDERAL LAW WHICH

HAS NOT BEEN BUT SHOULD BE DECIDED BY THIS

COURT IS PRESENT IN THIS CASE.

The Federal Rules of Civil Procedure as they relate to dis-

covery are based on the concept that whatever would be ad-

missible at a trial is also a relevant subject for discovery. The

Courts have frequently held that the purpose of discovery is to

ascertain before trial material facts concerning the real issues

in dispute, thus saving valuable time at trial. Surprise at a trial

should be almost impossible. G. F. Heaublien Bros. vs. Bushnill

Wine and Product Co., 2 F.R.D. 190; Chatman vs. American

Export Lines, 20 F.R.D. 176. The government in this case be-

low made extensive use of the discovery process and the Union

fully complied. This ought to be a two way process. It is our

view that inasmuch as this is a civil case, there is no reason why

the litigation should be conducted behind a curtain. The govern-

ment argued and Circuit Court adopted the theory that the gov-

ernment is privileged to withhold from disclosure the identities

and statements of persons furnishing information of law viola-

tions to law enforcement officers, relying upon Roviaro_ vs.

United States, 353 U.S. 53,1 L.Ed. 2d 639, 77 S.Ct. 623 (1956).

The Circuit Court extended the “qualified privilege” recognized

to protect the identity of informants in actions under the Fair

Labor Standards Act to the LMRDA c7ses. This is the first de-

cision of any Circuit so extending this doctrine from FLSA

cases. We submit this is ill considered, without cause, and if per-

mitted to stand will do irreparable harm to all litigants who

must deal with the government under LMRDA. The rationale

of FLSA cases is that non-disclosure of complaining employees

will protect them from retaliation by employers. U.S. vs. Hemp-

’ —5—

hill, 369 F.2d 539 (4th Cir. 1966). The premise of the Court

was that potential reprisal against Union members was justifica-

tion for extension of the so-called “qualified privilege”. This in

spite of the guarantees to members of labor organizations set

forth under LMRDA. The Circuit Court misconceived the

parties’ argument and premised its ruling on the value of non-

disclosure of the identities of Union members! The interroga-

tories sought the names and statements of all witnesses inter-

viewed, not just Union members, thus the mantle of secrecy was

extended to those persons totally outside the scope of the

Union’s ability to retaliate. This, although the Union knew full

well which members had complained as it was specified in the

complaint. The purpose of the Union was to avail itself of the

fruits of the investigation to prepare for trial, not to obtain the

names of Union members. The Circuit Court ignored 29 U.S.C.

§411-415, which is frequently referred to as the “‘Bill of Rights

of Members of Labor Organizations”. This Act, as well as the

National Labor Relations Act, affords protection from retalia-

tion and retribution to Union members.

Petitioner believes that in a civil cause, no rule of secrecy

should obtain, and names of persons having knowledge of rele-

vant facts must be disclosed. Bell vs. Swift, 283 F.2d 407 (Sth

Cir. 1960); Ronoe vs. Panhandle Eastern Pipe Line Company,

D.C., N.Y., 1952, 12 F.R.D. 257. Discovery should not be re-

strained, but on the contrary should be liberally allowed. This

Court has held that mutual knowledge of all relevant facts

gathered by both parties is essential to proper litigation.

Hickman vs. Taylor, 329 U.S. 495, 91 L.Ed. 451, 67 S.Ct.

385 (1947). The discovery process should be accorded a liberal

interpretation. Newell vs. Phillips Petroleum Co., 144 F.2d 338

(10th Cir. 1944). Surely government in secret is not the object

to be achieved and we do not believe this Court looks favorably

upon such conduct. The concept of an informant’s privilege is

explained by the well known case of Roviaro vs. U.S., supra.

ain

This, although a criminal action, established the determinative

test for deciding if privilege will apply. This Court therein indi-

cated that-a limitation on the applicability of privilege arises

from fundamental requirements of fairness. Where the disclosure

of an informant’s identity or of the contents of his communica-

tion is relevant and helpful to the defense of an accused, or is

essential to a fair determination of the cause, the privilege must

give way. The trial court in our case applied this test and found

that the Petitioner’s interest in obtaining the information in

question out weighed the government’s interest in protecting

the information by asserting that it was privileged. The Circuit

Court substituted its judgment for the discretion of the trial

court. None of the decided cases of which we are aware have

awarded an absolute privilege. This decision does so without

any real limitations or guidelines. The decision making process

as to what is or is not relevant and privileged is transferred

from the Court to the government. The doctrine of privilege

enunciated in Roviaro, supra, is of interest but it is difficult to

see how its application to the LMRDA case can be justified.

Where next will the government seek to expand the tentacles of

secrecy? Such a weapon is a valuable tool in civil litigation. This

is a convenient method for suppressing information favorable

to an opponent’s case! This is an important question of federal

law which has been decided for the first time in any appellate

court. This decision will touch hundreds of pending cases and

it is submitted should be reviewed.

CONCLUSION

WHEREFORE, Petitioner respectfully prays that a writ of

certiorari be granted.

Respectfully submitted,

Alan A. Armour, Esq.

1234 Bannock Street

Denver, Colorado 80204

Attorney for Petitioner

offen

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

WILLIAM J. USERY, Secretary

of Labor,

Plaintiff-Appellant,

vs. No. 76—1055

LOCAL UNION 720,

LABORERS’ INTERNATIONAL

UNION OF NORTH

AMERICA, AFL-CIO,

ee ee i i i ee er ee

Defendant- Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D. C. No. 74—M—1144)

Neil H. Koslowe (Rex E. Lee, Assistant Attorney General,

James L. Treece, United States Attorney, Leonard Schaitman,

Attorney, Department of Justice, Civil Division-Appellate Sec-

tion, on the brief) for Appellant.

Alan A. Armour (Hoffman, Goldstein, Armour & Lonnquist,

P.C., on the brief) for Appeliee.

Before SETH, BRIETENSTEIN and McWILLIAMS, Circuit

Judges.

BREITENSTEIN, Circuit Judge.

The question is whether in an enforcement action under the

Labor-Management Reporting and Disclosure Act of 1959,

LMRDA, 29 U.S.C. § 401 et seq., the Secretary of Labor has a

privilege not to reveal the identities and statements of inform-

ants. The Secretary objected to certain interrogatories pro-

pounded by the defendant Union and asserted that the informa-

tion sought was privileged. The court overruled the objection

and ordered the Secretary to answer. He declined to do so. On

the motion of the defendant, the court dismissed the action and

the Secretary has appealed. We reverse.

On June 8, 1974, the Union, which is based in Denver, Colo-

rado, had an election of officers. The election was subject to

the provisions of Title IV of LMRDA, 29 U.S.C. § 481 et seq.

Twelve union members filed a complaint with the Secretary

protesting the election. See 29 U.S.C. § 482(a). The Secretary

made an investigation, see 29 U.S.C. § 521, and found cause, see

29 U.S.C. § 482(b), to believe that violations of Title IV of the

Act has occurred and had not been remedied. He then filed the

instant action which seeks nullification of the election and dir-

ection of a new election. Section 482(b), 29 U.S.C. confers

federal jurisdiction.

The answer of the defendant Union contains admissions and

denials and asserts affirmative defenses. The Union submitted

interrogatories to the Secretary who answered some and claimed

privilege as to others. The answers of the Secretary disclosed

that he claimed two violations of LMRDA; (1) ‘“‘defendant’s

provision of only one polling place, and the failure to provide

absentee ballots, denied members in good standing the right to

=

vote for candidates of their choice”, see 29 U.S.C. § 481(e),

and (2) “the expenditure of $492.04 of defendant’s funds to

promote the candidacy of certain persons’, see 29 U.S.C.

§481(g).

The Secretary objected to five interrogatories on the ground

that they called for privileged information in that answers would

disclose the identity of confidential informants. The court over-

ruled the Secretary’s objections and ordered him to answer. He

declined to do so. On motion of the defendant, the court dis-

missed the action.

The government is privileged to withhold from disclosure the

identities of persons furnishing information of law violations to

law enforcement officers. Roviaro v. United States, 353 U.S. 53,

59. “The purpose of the privilege is the furtherance and protec-

tion of the public interest in effective law enforcement.” Ibid.

The principle applies in both civil and criminal actions.

Westinghouse Electric Corp. v. City of Burlington, Vermont,

D.C. Cir., 351 F.2d 762, 769. We have joined four other circuits

in recognizing a qualified privilege to protect the identity of in-

formants in actions under the Fair Labor Standards Act, FLSA.

See Usery v. Ritter, No. 76-1809, opinion filed simultaneously

with this opinion, and cases there cited.

The Union asserts that the decisions under the FLSA are not

applicable because they are concerned with employer-employee

relationships where the possibility of retaliation is present.

Union reprisal against its members is within the realm of possi-

bility. See e.g. Robins v. Schonfeld, $.D.N.Y., 326 F.Supp. 525,

528-529. FLSA proscribes retaliatory acts. See 29 U.S.C.

§ 215(a). Although LMRDA contains no comparable provision,

Union says that the members are adequately protected by the

“Bill of Rights of Members of Labor Organizations’’, 29 U.S.C.

86 411-415.

ltin

Be that as it may, the overriding concern is the public interest

in law enforcement. Anonymity of informants encourages com-

munications to law enforcement officers. As said in Roviaro,

353 U.S. at 62: “The problem is one that calls for balancing the

public interest in protecting the flow of information against the

individual’s right to prepare his defense.”

We are aware of no appellate decisions which have considered

whether the Secretary is privileged to refuse to identify inform-

ants in LMRDA proceedings. Two district court cases have

recognized and upheld the privilege. See Wirtz v. International

Print. P. & A.U. of N.A., AFL-CIO, E.D.Tenn., 47 F.R.D. 58,

and Goldberg v. Machinists, District Lodge 70, D.Kan., 45 CCH

Lab. Cas. par. 17,799 at 27,409.

The Union makes much of its rights of discovery under the

applicable Federal Rules of Civil Procedure. We recognize those

rights. They must be balanced against the privilege claimed by

the government. The privilege is not absolute but qualified. See

Usery v. Ritter, supra, and cases there cited. The government’s

interest in confidentiality must be weighed against the defend-

ant’s need for disclosure in the preparation of its defense. See

Brennan v. Engineered Products, Inc., 8 Cir., 506 F.2d 299, 303.

The proceedings are at the discovery stage. ‘he government is

willing to provide information which would not reveal the iden-

tities of informants and to make disclosure with regard to in-

formants who waive confidentiality. The government recognizes

that at an appropriate time, probably in connection with a pre-

trial order, it must list its witnesses. The Union states its needs

in conclusory and conjectural terms. The issues are simple-

whether the Union provided adequate means for its members to

express their choices at the election and whether funds of the

Union were used to promote the candidacies of particular per-

sons. The facts pertaining to each are within the knowledge of

=

the Union. Absent extraordinary circumstances not here pre-

sent, the evidentiary rule recognizing a qualified privilege ap-

plies in preliminary proceedings not determinative of the merits

of a controversy. See McCray v. Illinois, 386 U.S. 300, 312. We

are not presented with any problem arising from the listing of

witnesses in a pretrial order.

The failure of the Union to show a substantial need for the

requested breach of confidentiality at the discovery stage tips

the scales in favor of the government. The trial court’s reliance

on United States v. Nixon, 418 U.S. 683, is misplaced. That

cas€ was concerned with executive privilege arising from the

constitutional enumeration and separation of powers. Ibid. at

703. The withholding of an informant’s identity is an eviden-

tiary, rather than executive, privilege. See Mitchell v. Bass, 8

Cir., 252 F.2d 513, 516-517. In the case at bar the Secretary

claims an evidentiary, not an executive, privilege.

The Union argues that discovery orders are discretionary with

the trial court. We agree. The difficulty is that the trial court

flatly rejected the government’s claim of privilege. It did not

balance the government’s qualified privilege against the need of

the Union at the discovery stage of the proceedings. Failure to

recognize the government’s qualified privilege and to balance it

against the needs of the Union was an abuse of discretion.

Reversed and remanded for further proceedings in the light of

this opinion.

alin

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 74—M—1144

JOHN T. DUNLOP, SECRETARY

OF LABOR, UNITED STATES

DEPARTMENT OF LABOR,

Plaintiff,

)

)

)

)

)

)

v. ) ORDER OF DISMISSAL

)

LOCAL UNION 720, LABORERS’ )

INTERNATIONAL UNION OF _ )

NORTH AMERICA, AFL-CIO, )

)

)

Defendant.

This is an action brought by the Secretary of Labor under the

Labor Management Reporting and Disclosure Act of 1959, 29

U.S.C. § 481 et seq. On July 3, 1975, the defendant filed a mo-

tion to compel discovery, seeking an order to require the plain-

tiff to answer certain interrogatories. At a hearing on that mo-

tion on August 13, 1975, this Court entered an order compel-

ling and directing that the plaintiff answer the interrogatories,

excepting interrogatories numbers 27(h), 27(i), 27(j) and 30.

The plaintiff has refused to obey that order. In the opinion of

this Court, the subject interrogatories are proper discovery,

there is no privilege to withhold the information requested and

such information is necessary for preparation of the defense of

this action. Upon the conclusion that the appropriate sanction

for the refusal to obey the order for discovery under F.R.C.P.

37 is dismissal of this civil action, it is, therefore,

—14-

ORDERED that the complaint and this civil action are dis-

missed, without prejudice.

Done at Denver, Colorado, this 30th day of October, 1975.

BY THE COURT:

Richard P. Matsch, Judge

United States District Court

xy =

“26. Did plaintiff, by and through his agents, servants and

employees contact, interview, take statements from or have a

discussion with any person or persons during the course of the

investigation described in Paragraph IX of plaintiff’s com-

plaint?”’

“27. In the event the answer to Interrogatory No. 26 above is

in the affirmative, answer the following questions:

(a) What is the name, address and telephone number of each

and every person so contacted or interviewed or from whom

a statement was taken or with whom a discussion was had?

(b) What is the name and address of the employer of each and

every person listed in response to Interrogatory No. 27(a)

above?

(c) On what exact and specific date or dates was each such

person listed in answer to Interrogatory No. 27(a) above

contacted?

(d) Were statements in writing taken or was some recording

made or was any other device or method utilized to preserve

the statement of any of the persons listed in response to In-

terrogatory No. 27(a) above?

(e) Was a statement in writing or other means or method used

to obtain a statement from all of the persons described in

response to Interrogatory No. 27(a) above?

(f) If the answer to Interrogatory No. 27(e) above is in the

negative, what is the name of each and every such person

from whom no statement in writing was taken?

(g) What is the exact and specific reason no written statement

was so obtained from the person or persons listed in response

to Interrogatory No. 27(f) above?”

“46. What are the names and addresses of any persons who

were contacted, interviewed, or from whom a statement was

taken during plaintiff’s investigation of the facts surrounding

defendant’s use of moneys ‘to promote the candidacy of

=e

certain persons in the election’ as described in Paragraph X of

plaintiff’s Complaint?”

“47. Which persons listed in response to Interrogatory 46

above, if any, gave written statements to plaintiff?”

‘48. What was the basic substance of each conversation had

between any of the agents, servants and employees of plain-

tiff and the persons listed in response to Interrogatory No.

46 above?”

—17—

§ 482. Enforcement

(a) Filing of complaint; presumption of validity of challenged

election. A member of a labor organization—

(1) who has exhausted the remedies available under the con-

stitution and bylaws of such organization and of any parent

body, or

(2) who has invoked such available remedies without obtain-

ing a final decision within three calendar months after their

invocation,

may file a complaint with the Secretary within one calendar

month thereafter alleging the violation of any provision of sec-

tion 401 (29 USCS § 481) (including violation of the constitu-

tion and bylaws of the labor organization pertaining to the

election and removal of officers). The challenged election shall

be presumed valid pending a final decision thereon (as herein-

after provided) and in the interim the affairs of the organiza-

tion shall be conducted by the officers elected or in such other

manner as its constitution and bylaws may provide.

(b) Investigation of complaint; commencement of civil action

by Secretary; jurisdiction; preservation of assets. The Secretary

shall investigate such complaint and, if he finds probable cause

to believe that a violation of this title (29 USCS §§ 481—483)

has occured and has not been remedied, he shall, within sixty

days after the filing of such complaint, bring a civil action

against the labor organization as an entity in the district court

of the United States in which such labor organization maintains

its principal office to set aside the invalid election, if any, and

to direct the conduct of an election or hearing and vote upon

the removal of officers under the supervision of the Secretary

and in accordance with the provisions of this title (29 USCS

§§ 481—483) and such rules and regulations as the Secretary

may prescribe. The court shall have power to take such action as

it deems proper to preserve the assets of the labor organization.

afi.

(c) Declaration of void election; order for new election; certifi-

cation of election to court; decree; certification of result of vote

for removal of officers. If, upon a preponderance of the evidence

after a trial upon the merits, the court finds—

(1) that an election has not been held within the time pre-

scribed by section 401 (29 USCS § 481), or

(2) that the violation of section 401 (29 USCS § 481) may

have affected the outcome of an election,

the court shall declare the election, if any, to be void and direct

the conduct of a new election under supervision of the Secre-

tary and, so far as lawful and practicable, in conformity with the

constitution and bylaws of the labor organization. The Secretary

shall promptly certify to the court the names of the persons

elected, and the court shall thereupon enter a decree declaring

such persons to be the officers of the labor organization. If the

proceeding is for the removal of officers pursuant to subsection

(h) of section 401 (29 USCS § 481(h)), the Secretary shall certi-

fy the results of the vote and the court shall enter a decree de-

claring whether such persons have been removed as officers of

the labor organization.

(d) Review of orders; stay of order directing election. An order

directing an election, dismissing a complaint, or designating

elected officers of a labor organization shall be appealable in the

same manner as the final judgment in a civil action, but an

order directing an election shall not be stayed pending appeal.

(Sept. 14, 1959, P. L. 86-257, Title IV, § 402, 73 Stat. 534.)