Petition — McAdams v. McSurely

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Supreme Court, U. &.

— FILED

ICHAEL ptate a CLERK

In the Supreme Court of the

Ooroser TERM, 1976

Senator JoHN L. MoCLELLAN, ET AL., PETITIONERS

Avan MoGorety AND Marcaret MoSvure.y

PETITION FOR A WRIT OF CERTIORARI TO THE

UN'TED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Dante. M. FRIEDMAN,

Acting Solicitor General,

Barpara ALLEN BaABoook,

Assistant Attorney General, }

Frank H. EASTERBROOK,

Assistant to the Solicitor General,

Rosert E. Kopp,

RATMOND D. Barroccu,

Attorneys,

Department of Justice,

Washington, D. C. 20530.

INDEX

Page

SD oc cccccccedéccsdttededece sects 2

rere es oe b ene de 2

GD INNS sec cccsccdcceccsesoceses 2

Constitutional provision involved ............. 3

r re ese 3

Reasons for granting the peti tion 12

esse e d de 21

BEE avn ee eee es bees la

BEE ED Sb occccs vevedeccctosvccedecesews 131a

˖ GP Bb aSdcccdtoddénvccebe covéccdens 195a

BEE EP c.ccccccaucdecesscccecengebeueus 212a

77 11 —— 215a

/I. 216

CITATIONS

Cases:

Burdeau v. McDowell, 256 U.S. 465 18

Butz v. Economou, No. 76-709, certiorari

granted, February 22, 1977 ............ 20

Cobbledick v. United States, 309 U.S. 323 .. 8

Cohen v. Beneficial Industrial Loan Corp.,

El Wt EE indicates dadeotsouws cbdedes 8

Doe v. McMillan, 412 U.S. 306 ......... 14, 19-20

Dombrowski v. Eastland, 387 U.S. 82 ..... 16

Eastland v. United States Servicemen’s

Fund, 421 U.S. 491 ......... 9, 11, 13, 14, 15, 18

Eisen v. Carlisle & Jacquelin, 417 U.S. 156 . 8

Gregoire v. Biddle, 177 F.2d 579, certiorari

denied, 339 U.S. 949. 14

Kilbourn v. Thompson, 103 U.S. 168 16

Ormsby v. Chase, 290 U.S. 387 ........... 1

Paul v. Davis, 424 U.S. 693 .............. 12, 20

United States v. Calandra, 414 U.S. 338... 18

United States v. Janis, 428 U.S. 433 ...... 17

Constitution and statutes:

United States Constitution :

Article I, Section 6, clause 1

(Speech or Debate Clause) ... passim

First Amendment 3, 15

Fourth Amendment 10, 15, 17

28 U.S.C. “ .................. 8

Ky. Rev. Stat. § 432.040 (1962) ...... 3

Miscellaneous :

Federal Rules of Appellate Procedure,

r 1-2

Rules of the Supreme Court of the

United States, Rule 48(1) ........ 2

S. Rep. No. 91-137, 91st Cong., Ist Sess.

P Ä 4

In the Supreme Court of the United States

OctroserR TERM, 1976

No.

Senator Jonn L. McCLeELLAN. ET AL., PETITIONERS

Atan McSurety AN Dp Margaret McSvrety

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

The Solicitor General, on behalf of Senator John L.

McClellan and his former aides, Jerome S. Alderman,

Donald F. O'Donnell, and John Brick, petitions for a

writ of certiorari to review the judgment of the court

of appeals for the District of Columbia Circuit in this

case.’

Two petitioners died while the case was in the court of appeals,

Brick on October 15, 1973, and Alderman on October 1, 1975.

See App. A, infra, p. 4a n. 1. We have been advised that both

Brick and Alderman left wills that were not probated, that their

estates have no representatives, that all assets in the estates have

been transferred to their surviving wives, and that respondents

have not served the estates with process or sought to substitute the

estates for Brick and Alderman. Under these circumstances the

actions against Brick and Alderman appear to have abated.

“(T]he law of the place of the wrong determines whether the

claim for damages survives the death of the wrongdoer.” Ormsby

v. Chase, 290 U.S. 387, 388. Although we conceded in the court of

appeals that the claims against Brick and Alderman technically

survive their deaths, respondents have not suggested that any law

of Kentucky or the District of Columbia would allow substitution

or revival of the action at this late date.

Nevertheless, out of an abundance of caution, we have named

Brick and Alderman as petitioners on the authority of Fed. R. App.

(1)

OPINIONS BELOW

The opinion of the court of appeals en bane (App.

A, infra, pp. Ia-130a) is not yet reported. The opinion

of the panel of the court of appeals (App. B, infra,

pp. 13la-194a) is reported at 521 F.2d 1024. A prior

opinion of the court of appeals (App. C, infra, pp.

195a-21la) is reported at 426 F.2d 664. The orders of

the district court (Apps. E and F, infra, pp. 215a-217a)

are not reported.

JURISDICTION

The judgment of the court of appeals en banc (App.

D, infra, pp. 212a-214a) was entered on December 21,

1976. On March 15, 1977, the Chief Justice extended

the time within which to file a petition for a writ of

certiorari to and including May 20, 1977. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1, Whether the Speech or Debate Clause bars a pri-

vate suit for damages against a Senator and his aides,

alleging that some of their investigatory activities, in

connection with a subject on which legislation may be

had, were improper or unconstitutional.

2. Whether the court of appeals properly ruled on

an allegation of dissemination of documents that was

not presented to or decided by the district court.

P. 43(a), under which the appeal proceedings with respect to them

were permitted to go forward notwithstanding their deaths and

respondents’ failure to request substitution. But ef. Rule 48(1) of

the Rules of this Court.

CONSTITUTIONAL PROVISION INVOLVED

Article I, Section 6, clause 1 of the Constitution

provides:

The Senators and Representatives shall receive

a Compensation for their Services, to be ascertained

by Law, and paid out of the Treasury of the United

States. They shall in all Cases, except Treason,

Felony and Breach of the Peace, be priv. aged from

Arrest during their Attendance at the Session of

their respective Houses, and in going to and return-

ing from the same; and for any Speech or Debate in

either House, they shall not be questioned in any

other Place.

STATEMENT

1. On August 11, 1967, a state judge in Kentucky

issued a warrant authorizing a search of respondents’

house for seditious literature App. A, infra, p. 6a).

State officials executed the warrant that evening and

arrested respondents for criminal sedition, in violation

of Ky. Rev. Stat. § 432.040 (1962) (ibid.).

On August 16, 1967, respondents sought a federal

injunction against their prospective state prosecution ;

their complaint also requested the return of the seized

materials. A three-judge district court was convened.

By a divided vote the court declared the Kentucky

sedition statute unconstitutional on its face as a viola-

tion of the First Amendment and enjoined the prose-

cution of respondents, who by then had been indicted.

McSurely v. Ratliff, 282 F. Supp. 848 (E.D. Ky.). The

court appointed Commonwealth's Attorney Thomas B.

Ratliff custodian of the seized materials and directed

him to hold the materials in safekeeping until final

disposition of any appeal (App. A, infra, pp. 6a-7a,

60a-G61a). The safekeeping order was entered on

September 14, 1967.’

2. At all times pertinent to this case, the Permanent

Subcommittee on Investigations of the Committee on

Government Operations of the United States Senate

(the Subcommittee) was authorized by resolution of

the Senate Ito make a full and complete study and

investigation of violent disturbances of the peace [and]

* * * civil and criminal disorder (see App. B. infra,

pp. 158a-159a and n. 66) with a view to ascertaining

the nature and causes of such disturbances and recom-

mending any appropriate legislation. In October 1967

a Subcommittee attorney discussed respondents’ activ-

ities by telephone with Ratliff, and John Brick, an

investigator for the Subcommittee, was dispatched to

meet Ratliff (App. A, infra, p. 7a).

Ratliff told Brick that the materials seized from

respondents contained references vo a me2ting immedi-

ately preceding a riot in Nashville, Tennessee, and to

organizations suspected of instigating riots. Brick was

permitted to examine some of the seized materials.‘

He obtained copies of 234 of the documents and re-

turned to Washington with these copies (App. A. in-

fra, pp. Ta-8a). He did not take any originals.

On October 16, 1967, Senator John L. McClellan, the

Chairman of the Subcommittee, signed subpoenas di-

recting respondents, Ratliff, and the United States

Marshal to produce documents in their possession per-

tinent to the meeting in Nashville preceding the riot

there and pertinent to respondents’ membership in or

employment by several organizations (App. A, infra,

p. 8a). Respondents requested the three-judge district

court to prohibit Ratliff and the Marshal from comply-

ing with the subpoenas; respondents also requested

return of the materials.’ On October 30, 1967, the court

denied these requests and directed all parties to the

case to cooperate with the Senate Committee in mak-

ing available such of the materials, or copies thereof,

as the Committee considers pertinent to its inquiry.

This Court stayed that order pending the district

court’s consideration of respondents’ objections to the

subpoenas. McSurely v. Ratliff, 389 U.S. 949.

On December 14, 1967, the three-judge district court

rejected respondents’ objections to the subpoenas and

ordered Ratliff to allow persons on the Subcommittee

staff to make photocopies of the documents.’ On Janu-

uncontradicted testimony, however, that before he allowed Brick

to see the materials he spoke with one of the three judges of the

court and received permission to grant access to Brick (App. A,

infra, p. 63a).

„See pages 6a-9a of the jurisdictional statement in No. 1113,

October Term, 1967.

* Id. at 4a.

See pages 1a-3a of the jurisdictional statement in No. 1113,

October Term, 1967.

ary 29, 1968, this Court stayed the order pending con-

sideration of respondents’ appeal (390 U.S. 914),

which it dismissed on March 18, 1968, for want of juris-

diction (McSurely v. Ratliff, 390 U.S. 412).

Respondents then appealed the disclosure order to

the court of appeals, which reversed. McSurely v.

Ratliff, 398 F.2d 817 (C. A. 6). The court of appeals

ordered the documents returned to respondents because

(id. at 818) [the business of the District Court in

this case has been completed. The right of the Court

to retain possession of the seized documents, which

include no contraband, has expired. The court of ap-

peals stated that its order was without prejudice to

the right of the Subcommittee to enforce its subpoenas

against respondents (ibid.)

3. Following this decision by the court of appeals,

Brick returned to Kentucky officials the copies of the

234 documents that he had taken earlier (App. A,

infra, p. 8a n. 13). Ratliff returned the orginial docu-

ments to respondents on November 8, 1968. The United

States Marshal simultaneously served respondents with

new subpoenas requiring them to testify before the

Subcommittee and to bring certain documents with

them (id. at 9a). Respondents appeared before the

Subcommittee on March 4, 1969, but they refused to

produce the requested materials (ibid.).

The Senate cited respondents for contempt of Con-

gress. They were indicted and convicted of that of-

fense after a jury trial in the United States District

Court for the District of Columbia. The court of ap-

peals reversed. United States v. McSurely, 473 F.2d

1178 (C.A.D.C.). The majority of the panel concluded

that the search warrant issued by the Kentucky judge

in 1967 was based upon a -onclusory affidavit that did

not permit the judge to make an independent evalua-

tion of probable cause, and that the search warrant

was overly broad (id. at 1185-1190). The majority held

that the subpoena should have been suppressed at trial

as the fruit of the poisonous tree. Id. at 1191-1194."

The court explicitly declined to consider respondents’

argument that the seizures were improper because they

had been carried out in aid of a statute later declared

to be unconstitutional. Id. at 1190 u. 38.

4. On March 4, 1969, the same day they appeared

before the Subcommittee, respondents filed the present

suit. They sought money damages and an injunction

against any potential criminal prosecution. The dis-

trict court stayed the civil proceedings to allow the

criminal trial for contempt of Congress to proceed ;

the court of appeals affirmed, although it remanded

for further consideration of some collateral matters

(App. C, infra, pp. 195a-211a).

In January 1971, while the court of appeals was

considering the appeal from their convictions for con-

tempt of Congress, respondents filed an amended com-

plaint naming as defendants Ratliff and the four peti-

tioners. They sought $50,000 damages from each

petitioner. The complaint alleged, in essence, that peti-

tioners conspired with Ratliff to: (1) carry out the

illegal search and seizure of their documents in 1967;

* Judge Wilkey, concurring in the result, argued that congres-

sional committees should be entitled to base subpoenas upon know!l-

edge gained from unconstitutional seizures by state officials. 473

F.2d at 11941202. He concluded, however, that the

eventually sought by the subpoena were not pertinent to

Subcommittee’s inquiry (id. at 1203-1204).

(2) inspect and transport to Washington copies of

234 of those documents; (3) inspect those documents

in Washington; (4) use the copies as the basis for

issuing the subpoena; and (5) procure the citations

for contempt of Congress.

Petitioners filed a motion for summary judgment,

contending that the Speech or Debate Clause of the

Constitution immunizes them from liability for the

events described in the complaint. The district court

held a hearing on this motion and, approximately 19

months later, denied it without explanation (App. E,

infra, p. 215a). The court declined to certify the case

for an interlocutory appeal pursuant to 28 U.S.C. 1292

(b) (App. F, infra, pp. 216a-217a). Ratliff did not

move for summary judgment.

Petitioners appealed, and a divided panel of the

court of appeals reversed, ordering the entry of sum-

mary judgment for petitioners (App. B, infra, pp.

131a-194a).“

»The panel held (App. B, infra, pp. 136a-142a) and the en banc

court later unanimously agreed (App. A, infra, pp. 10a-lla n. 18)

that the immediate appeal was appropriate under the “collateral

order” doctsine of Cohen v. Beneficial Industrial Loan Corp., 337

U.S. 541. The Speech or Debate Clause establishes a right not to be

“questioned” in court for legislative activities, and part of that

right would be irretrievably lost if petitioners were required to

submit to discovery and undergo a trial. Cf. Risen v. Carlisle &

Jacquelin, 417 U.S. 156.

We have argued that the collateral order doctrine does not allow

a pretrial appeal in criminal cases, even when the defendant seeks to

vindicate a right not to be tried. See Abney v. United States, No.

75-6521, argued January 17, 1977. The special interest in the

expeditious resolution of criminal cases (see Cobbledick v. United

States, 309 U.S. 323, 324-326), however, makes it appropriate to

have different rules of appealability in civil and criminal cases. We

therefore believe that even though, under our argument in Abney,

The court of appeals then heard the case en banc. In

a brief per curiam order, the court unanimously in-

structed the district court to grant partial summary

judgment for petitioners (App. A, infra, pp. 2a-3a).

The court concluded that the Speech or Debate Clause

gives petitioners absolute immunity from liability for

any activities relating to the 1967 search of petitioners’

house, the inspection or use by the Subcommittee of

the 234 copies of documents, and the issuance of the

subpoenas and the procurement of the citation for con-

tempt of Congress (id. at 39a-43a, 54a).

An equally divided court affirmed the district court’s

order to the extent that it would subject petitioners to

trial with respect to Brick’s inspection of the docu-

ments and his transportation of the 234 copies to Wash-

ington (Apps. A and D, infra, pp. Za, 213a). Judge

Leverthal, writing for himself and Judges Bazelon,

Wright, McGowan, and Robinson, concluded that East-

land v. United States Servicemen’s Fund, 421 US.

491, established a two-part test to determine whether

judicial inquiry is barred by the Speech or Debate

Clause. The first part of the test, Judge Leventhal

stated, is whether the activity is related to the legisla-

tive process; the second is whether the legislative

process has been condvted properly. Judge Leventhal

concluded that Brick etivities may fairly be

deemed within [the & . .ommittee’s] province“ and

that the investigation concerned aatters ‘‘on which

‘legislation could be had (App. A, infra, p. 17a).

Judge Leventhal thought, however, that Brick’s con-

a claim of Speech or Debate Clause immunity could not be raised

by pretrial appeal in a criminal case, it may be so raised in a civil

case.

duct was unlawful (id. at 18a-39a, 46a-52a). Because,

in Judge Leventhal’s view, ‘‘employment of unlawful

means to implement an otherwise proper legislative

objective is simply not ‘essential to legislating’ ’’ (id.

at 20a), he concluded that Brick’s conduct was not im-

mune from further scrutiny.

Judge Leventhal explained that Brick’s conduct vio-

lated the Fourth Amendment (App. A, infra, pp. 22a-

32a) both because it violated the three-judge district

court’s ‘‘safekeeping’’ order and because the initial

seizure of the documents was a violation of the Fourth

Amendment.” Judge Leventhal also apparently con-

cluded that Brick’s actions were improper because

some of the 234 documents that he received were not

material to the Subcommittee’s investigation (id. at

34a-39a ).

Although Judge Leventhal’s discussion concentrated

on the propriety of Brick’s activities, and although

respondents have made no factual proffer of in-

volvement in any activity that could result in [the other

petitioners'] liability’ ’’ (App. A, infra, p. 22a n. 43),

Although Judge Leventhal believed that the “safekeeping”

order contained a requirement that Ratliff consult with the court

before allowing copies of the documents to be made (App. A, infra,

pp. 29a-30a, 48a, 50a), it contains no such command. Ratliff was

ordered only to keep the original copies of the documents intact,

and the three-judge court itself later ordered Ratliff to make them

available to the Subcommittee’s staff for copying. See pages 3-6,

supra. Judge Leventhal also apparently believed that the three-

judge district court had declared the 1967 search to have been

unconstitutional (App. A, infra, p. 28a), but this, too, is incorrect.

The three-judge court declared the statute unconstitutional and

did not discuss the propriety of the search. McSurely v. Ratliff’,

supra, 282 F. Supp. at 851-854.

he nevertheless coneluded that all four petitioners must

undergo further proceedings in the district court that

might lead to vicarious liability for Brick’s deeds (id.

at 44a-45a ).

Moreover, while the case was pending in the court of

appeals, respondents had learned that on occasion the

Subcommittee’s staff and staff of the Internal Revenue

Service had access to each others’ files (App. A, infra,

pp. 13a-16a), and respondents suggested that some or

all of the 234 documents might have been disseminated

outside the Subcommittee, although they did not state

that they had any information that this had occurred.

Judge Leventhal wrote that further proceedings must

be held in the district court concerning this claim of

dissemination, and the court’s judgment states that the

district court’s judgment is affirmed, in part.

on the claim relating to alleged dissemination“ (App.

D, infra, p. 213a).

Judge Wilkey, writing for himself and Judges Dan-

aher, Tamm, MacKinnon and Robb, argued that sum-

mary judgment should have been granted for petition-

ers (App. A, infra, pp. 54a-116a). Although Judge

Wilkey accepted Judge Leventhal’s interpretation of

Servicemen’s Fund, he disputed Judge Leventhal’s

conclusion that Brick had acted improperly. He ar-

gued that the three-judge district court allowed Brick’s

inspection of documents and that, although the 1967

search of respondents’ house by state officers was un-

constitutional, Brick’s inspection of the fruits of that

search was not a separate illegal act. Judge Wilkey

agreed that further proceedings should be held with

respect to the claim of dissemination, but he suggested

that in light of Paul v. Davis, 424 U.S. 693, respondents

would be unable to establish any constitutional injury

stemming from invasion of privacy (App. A, infra, pp.

54a, 101a-114a).

Judge Danaher, writing for himself and Judges

Tamm, MacKinnon and Robb, argued that principles

of official immunity require the dismissal of the com-

plaint in its entirety, without respect to the scope of

immunity under the Speech or Debate Clause (App. A,

infra, pp. 117a-130a)."

REASONS FOR GRANTING THE PETITION

An equally divided court of appeals has required a

Senator and one of his aides to undergo further ju-

dicial proceedings for their vicarious involvement in

activities related to the legislative process. It has done

so because, in the view of five judges, the activities were

improper, and because, in the view ot all ten judges,

the immunity of the Speech or Debate Clause dissolves

when a private party presents evidence that ‘affords

more than merely colorable substance (App. A, in-

fra, p. 22a) to an assertion that activities related to the

legislative process have been conducted improperly (id.

at 18a-20a, 55a n. 3).

This holding would require a trial on the merits in

* Although the judges who joined this opinion also joined Judge

Wilkey’s opinion, the two opinions anpear to call for different

dispositions of the “dissemination” claim: Judge Wilkey would

remand for further proceedings, and Judge Danaher would order

the entry of summary judgment for petitioners.

See note I. supra.

many cases in which private persons claim to have been

injured by legislators’ actions. It would seriously

erode the protection afforded by the Speech or Debate

Clause and undermine the independence of Congress.

Review of this case is particularly important because

all of the active judges of the District of Columbia Cir-

euit, where it may be anticipated that the majority of

suits brought against Members of Congress would be

filed, have concurred in the view that the scope of the

Speech or Debate Clause immunity turns on a resolu-

tion of the merits of allegations of misconduct.

1. a. All ten judges of the court of appeals cor-

rectly concluded that Brick’s investigation was a le-

gitimate legislative inquiry into matters about which

legislation could be had (App. A, infra, pp. 17a-18a,

55a n. 3). [Tjhe power of inquiry is * an inte-

gral part of the legislative process,’’ and it is part of

the sphere of legitimate legislative activity within

which both the Members of Congress and their aides

may act free from judicial scrutiny. Eastland v. United

States Servicemen’s Fund, 421 U.S. 491, 501, 505.

The court’s authority is at an end once it has deter-

mined that the conduct in question is related to a le-

gitimate legislative function. A court is without power

to determine whether the Members of Congress or their

aides carried out their tasks properly. The court of

appeals has held, however, that the Speech or Debate

Clause immunity does not shield legislators from lia-

bility for improper legislative behavior by their aides.

Under the court of appeals’ approach, the district

court must determine whether Brick erred ; if he erred

there is no immunity, but if he did not err petitioners

are immune. But an immunity that would protect only

when no wrong has been committed is no immunity at

all. Immunity is needed only when there has been mis-

conduct of some sort.“ and for that reason the Speech

or Debate Clause appropriately has been construed as

affording protection whether or not there has been im-

propriety. ‘‘Congressmen and their aides are immune

from liability for their actions within the ‘legislative

sphere,’ * * * even though their conduct, if performed

in other than legislative contexts, would in itself be

unconstitutional or otherwise contrary to criminal or

civil statutes. Doe v. McMillan, 412 U.S. 306, 312-313.

Here, as in Servicemen’s Fund, supra, 421 U.S. at

503, ‘‘a private civil action, whether for an injunction

or damages, creates a distraction and forces Mem-

bers [of Congress] to divert their time, energy, and

attention from their legislative tasks to defend the

litigation. * * [judicial power is brought to

bear on Members of Congress and legislative inde-

pendence is imperiled. [Consequently,] * * * once it is

determined that Members are acting within the ‘legiti-

mate legislative sphere’ the Speech or Debate Clause

is an absolute bar to interference.

A Judge Learned Hand explained in Gregoire v. Biddle, 177

F.2d 579, 581 (C. A. 2), certiorari denied, 339 U.S. 949, with re-

spect to official immunity, “[{t)he decisions have, indeed, always

imposed as a limitation upon the immunity that the official’s acts

must have been within the scope of his powers; and it can be argued

that official powers, since they exist only for the public good, never

cover occasions where the public good is not their aim, and hence

that to exercise a power dishonestly is necessarily to overstep its

bounds. A moment's reflection shows, however, that that cannot be

the meaning of the limitation without defeating the whole doctrine.”

In Servicemen’s Fund it made no difference whether

the subpoena violated the First Amendment rights of

the plaintiffs. So, here, it makes no difference whether

Brick violated the Fourth Amendment. The scope of

immunity does not turn upon whether respondents can

make out a good case on the merits; it is irrelevant

whether Brick erred, and the disagreement between

Judge Leventhal and Judge Wilkey about the pro-

priety of Brick’s conduct therefore is beside the point.

In inspecting respondents’ documents held by Ratliff,

and in transporting copies of some of them to Wash-

ington for further study, Brick was acting well within

the legislative sphere. Accordingly, he, his associates

on the Subcommittee staff, and Senator McClellan all

were immune from liability arising out of those actions.

The contrary holding of the court of appeals ap-

parently is based upon the belief that the Speech or

Debate Clause should not be read to create immunity

in the face of claims of unconstitutional action, else

Members of Congress and their aides could violate the

Constitution with impunity. In other words, the court

made the familiar argument that the broad protection

granted by the Clause creates a potential for abuse.

That is correct, and * * * we [have] noted that the

risk of such abuse was ‘the conscious choice of the

Framers’ buttressed and justified by history. * * *

Our consistently broad construction of the Speech or

Debate Clause rests on the belief that it must be so

construed to provide the independence which is its

central purpose. Servicemen’s Fund, supra, 421 U.S.

at 510-511. The court of appeals erred in holding that

proof that Brick had acted unlawfully would strip

petitioners of their immunity.

b. The court of appeals’ disposition of this case is

inconsistent with Dombrowski v. Eastland, 387 U.S. 82.

Dombrowski involved two separate claims, first that a

Senator and his aide had taken possession of illegally

seized materials after unconstitutional raids by state

officers, and second that they had participated in plan-

ning the raids. This Court affirmed the lower court's

holding that the first claim could not be maintained at

all and held that under the Speech or Debate Clause

the second claim could proceed only against the aide

because [t Ihe record [did] not contain evidence of

[the Senator’s] involvement in any activity that could

result in liability (id. at 84).

That is this case; after the State seized the materials,

Brick obtained copies of some of them. Brick is im-

mune under Dombrowski unless there was a separate

impropriety in his acquisition of the documents, and

even if there was such an impropriety Brick’s acts

could not be attributed to the other petitioners because,

as the court of appeals acknowledged, ‘‘the record at

present is silent on the involvement of defendants Me-

Clellan, Adlerman [sic] and O'Donnell!“ (App. A,

infra, p. 45a; see also id. at 22a n. 43). Cf. Kilbourn v.

The court of appeals suggested that petitioners could make “a

renewed motion for summary judgment” (App. A, infra, p. 45a) on

the ground that respondents have not adduced facts demonstrating

the involvement of persons other than Brick in any improprieties.

But under Dombrowski petitioners’ motion for summary judgment

on Speech or Debate Clause grounds put in issue any question of

involvement, and respondents then were required to show, if they

could, that they would be able to prove involvement. Petitioners

filed affidavits denying involvement, respondents did not introduce

—

hap AO Gn —

Thompson, 103 U.S. 168 (an aide, but not Members of

Congress, may be liable for an unconstitutional arrest

carried out at the Members’ direction).

c. Even if, as the court of appeals held, the question

of immunity turns upon proof of wrongdoing, it seems

clear that, as a matter of law, Brick committed no im-

proprieties warranting imposition of civil liability.

Respondents’ argument that Brick violated their rights

rests upon three considerations: (1) that Brick re-

ceived copies of illegally seized documents, (2) that

his receipt of those copies violated the judicial safe-

keeping’’ order under which they were being held, and

(3) that Brick transported to Washington copies of

documents that proved to be immaterial to the legis-

lative inquiry. None of those allegations, however, even

if true, would form the basis for an award of damages.

(1) Wholly apart from the fact that Brick could not

have known, in 1967, that in 1972 a court would deter-

mine that the documents had been improperly seized,”

there is no impropriety in receiving, for use in con-

gressional proceedings, the fruits of a State's violation

of the Fourth Amendment. This follows directly from

U'ncted States v. Janis, 428 U.S. 433, which held that

„eee unconstitutionally seized by state officials

„de used by federal officials in a civil tax case.

Janie demonstrates that the use of documents illegally

seized by another sovereign is not itself unlawful and

does not constitute a separate impropriety. See also

affidavits tending to create a disputed issue of materia! fact on this

question, and petitioners therefore were entitled to summary judg-

ment without the necessity of further proceedings.

See pages 6-7, supra. We have not discovered any other case

in which a person has been required to answer in damages for in-

specting documents that were improperly seized by third parties

Burdeau v. McDowell, 256 U.S. 465 (official use of

documents seized by private persons does not violate

the Fourth Amendment). Cf. United States v. Calan-

dra, 414 U.S. 338. If unconstitutionally seized docu-

ments may be used in civil tax cases, then surely they

may be used in legislative proceedings. Congress

should not be denied available information that may be

highly pertinent to legislative decisions.

(2) Any violation of the 1967 satekeeping order

is not attributable to Brick. Even if the 1967 order

required Ratliff to obtain the district court's permis-

sion before allowing another person to copy the docu-

ments—a matter that evenly divided ten judges ten

years later — there has been no allegation that Brick

knew or should have known that permission had not

been obtained. There is no reason why Brick or the

other petitioners should be called to account for any

failure on the part of the custodian to comply with the

safekeeping order.

(3) Liability on account of the selection and trans-

portation of copies of irrelevant documents is incon-

sistent with Servicemen’s Fund. The very nature of

the investigative function—like any research—is that

it takes the searchers up some ‘blind allevs’ and into

nonproductive enterprises. To be a valid legislative

inquiry there need be no predictable end result. 421

U.S. at 509. Judge Leventhal's conclusion that the

irrelevance of some documents to the legislative in-

quiry dissipates Speech or Debate Clause immunity

would make legislative investigations quite risky, for

investigators (and Members of Congress) could be

Compare App. A, infra, pp. 22a-32a and 46e-52a with id. at

59a-80a See also note 10, supra.

muleted in damages whenever the investigation turned

up papers that it was subsequently determined Con-

gress did not need or want. Risk of that sort would

hamper the legislative process. Once it has been de-

termined—as it has been here—that the aide had a

valid end in sight, it does not matter that hindsight

could show that he erred in pursuing that end. The

wisdom of congressional approach or methodology is

not open to judicial veto. [bid.

2. The court of appeals purported to affirm the order

of the district court insofar as that court had required

further proceedings concerning the dissemination of

the documents outside Congress (App. A, infra, pp.

13a-l6a, 44a, 54a). There was no such order to affirm.

Respondents’ allegations cf dissemination were made

for the first time in the court of appeals; since the com-

plaint did not make any allegations concerning dis-

semination, the district court had not entered any per-

tinent order. The court of appeals therefore lacked

jurisdiction to proceed as it did, and this Court should

vacate its judgment to relieve petitioners of any im-

proper consequences of the court of appeals’ judgment

of afflrmance and its remand to the district court for

trial on the issue of improper dissemination.”

Moreover, respondents have not alleged that there

has been any dissemination to the public.“ Doe v. Me-

lt respondents desire to raise a claim of unlawful dissemina-

tion they should start afresh in the district court, provided that

the pertinent statute of limitations permits litigation so long after

the events in question.

'* Even respondents’ allegation of dissemination to the Internal

Revenue Servier is devoid of factual support. Brick returned all

234 copies to state officials on August 14, 1968, before the Subeom-

Millan, supra, 412 U.S. at 324-325, held that there is

no absolute immunity for harm caused by improper

dissemination of information to the public that is not

justified by the legitimate legislative needs of Congress.

But even if any cause of action for dissemination sur-

vives Paul v. Davis, 424 U.S. 693, there is no reason

why Members of Congress and their aides should be

exposed to damages on account of dissemination to a

law enforcement agency of the government. Provision

of information to law enforcement agencies should be

encouraged, and it unquestionably is within the outer

perimeter of legislative duties.”

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

Dax M. FrrepMay,

Acting Solicitor General.“

Barbara ALLEN Bc.

Assistant Attorney General.

Frank H. EasTersrook,

Assistant to the Solicitor General.

Rosert E. Kopp,

Raymonp D. Bartroccui,

Attorneys.

May 1977.

* The Solicitor Genera! is disqualified in this case.

APPENDIX A

United States Court of Appeals

POR THE DISTRICT OF COLUMBIA CIRCUIT

No. 73-1991

ALAN Mesum anp Marcaret McSure.y

JoHN J. MoCLELLAN, ET AL., APPELLANTS

Appeal from the United States District Court

for the District of Columbia

(D.C, Civil Action 516-69)

(On Rehearing En Banc)

Argued en bane April 19, 1976

Decided December 21, 1976

Before: BAZELON, Chief Judge, DANAHER, Senior Cir-

cuit Judge, WRIGHT, MCGOWAN, TAMM, LEv-

ENTHAL, ROBINSON, MACKINNON, Ross and

WILKEY, Circuit Judges, sitting en banc.

Per Curiam: In August 1967, Kentucky officials, exe-

cuting warrants issued under a state sedition statute,

arrested plaintiffs (appellees) and seized books and pa-

pers from their home. Plaintiffs obtained a federal

court ruling on September 14, 1967, declaring the state

statute unconstitutional, enjoining prosecution, and or-

dering that the seized materials in the custody of the

state prosecutor continue to be held by him in safekeep-

ing until final disposition of the case. See McSurely v.

Ratlif, 282 F. Supp. 848 (E.D.Ky. 1967).

This appeal involves the claim that the transporta-

tion and use of the seized materials subsequent to Sep-

tember 14, 1967, by the chairman of the Senate subcom-

mittee and several members of the subcommittee staff

(federal defendants) violated the constitutional and

other rights of the McSurelys.

These federal defendants appeal from the District

Court’s denial of their motion, for dismissal or sum-

mary judgment, which they based on the immunity pro-

vided by the Speech or Debate clause of the Constitution,

Art. I, § 6, el. 1.

This court, en bane, enters these orders: (1) Reverses

the District Court’s failure to grant the motion of the

federal defendants to dismiss that part of the complaint

relating to the original taking of the McSurelys’ books

and papers by the Kentucky authorities. (2) Reverses

with directions to grant summary judgment to appel-

lants on those parts of the complaint that complain of

the alleged use made of the documents within Congress,

since such use is protected by the Speech or Debate

clause. (3) Affirms the District Court, with remand for

further proceedings, on the claim as to alleged dissem-

ination of some of the documents outside of Congress.

(4) Affirms by an equally divided vote, the District

Court’s denial of summary judgment on the allegations

concerning the action of subcommittee investigator Brick

in inspecting the documents and transporting copies of

some of them to Washington prior to issuance of a sub-

committee subpoena.

The case is remanded for further proceedings not in-

consistent with these opinions.

Opinions filed by: (a) Circuit Judge Leventhal—for a

majority of the court en banc as to items (1), (2) and

(3) above; and for himself and Chief Judge Bazelon, and

Cireuit Judges Wright, McGowan and Robinson, for af-

firmance as to item (4). (b) Circuit Judge Wilkey, for

himself, Senior Circuit Judge Danaher, and Circuit

Judges Tamm, MacKinnon and Robb, for reversal as to

item (4). (e) Senior Circuit Judge Danaher, joined by

Cireuit Judges, Tamm, MacKinnon and Robb for dis-

missal of the compiaint.

LEVENTHAL, Circuit Judge: This appeal is from a Dis-

trict Court order entered on June 12, 1973, in an action

by Alan and Margaret McSurely against Honorable John

L. McClellan, Jerome S. Adlerman, Donald F. O’Donnell,

and John Brick, then the Chairman, General Counsel,

Chief Counsel and Investigator, respectively of the Per-

manent Subcommittee on Investigation of the United

States Senate Committee on Government Operations

(hereinafter Subcommittee) ; and Thomas B. Ratliff, then

Commonwealth Attorney for Pike County, Kentucky.’

The plaintiffs, appellees here, seek compensatory and puni-

tive damages from each defendant for alleged violations

of their rights under 42 U.S.C. §§ 1981, 1983, and 1985,

and under the First, Fourth, Fifth and Fourteenth

Amendments of the Constitution.“ These are claimed

to arise from individual actions and a conspiracy of

defendants to harass, stigmatize, and intimidate plain-

tiffs through the appropriation and use of materials

taken from their home in an unlawful search by Ken-

tucky agents on August 11, 1967. The District Court’s

order denied a motion of defendants McClellan, Adler-

man, O'Donnell and Brick (hereinafter federal defend-

ants) to dismiss or for summary judgment, and allowed

the suit to proceed. Defendant Ratliff did not join the

motion and is not a party to this appeal.’

* During the pendency of this action, defendants Brick and

Adlerman died. On December 4, 1974, this court, s sponte,

ordered the parties to file memoranda on whether a tort action

against Brick or his personal representative survives that

defendant's death. Both appellants and appellees responded

that the action was maintainable against the personal repre-

sentative of Brick’s estate. Presumably the same would follow

for defendant Adlerman. This matter should be addressed by

the District Court on remand.

* Jurisdiction is founded on 28 U.S.C. §§ 1331, 1332, 1343 (3)

and (4).

* Defendant Ratliff is named in the amended complaint and

filed an answer, see Appendix “A” to Br. for Appellees for

the Court, Sitting En Banc. Since he did not file any motions

in response to the issues raised in this action, there has been

no pre-trial activity with respect to him. Plaintiffs maintain

they have not discontinued the proceedings as to him. Id. at

17-18 n.7. The Government does not represent Ratliff and

this — is not taken in his behalf. Br. for Appellants at

11 n.8.

The federal defendants argue in their appeal that

further proceedings would violate their right under the

Speech or Debate Clause of the Constitution* not to be

questioned outside of Congress for their legislative acts,

and that the use in a congressionai investigation by de-

fendant Senator and his aides of documents unlawfully

seized by others was not barred by the Fourth Amend-

ment.

A panel of this court in an opinion rendered October

28, 1975, one judge dissenting in part, reversed the Dis-

trict Court as to some of the claims in the complaint and

remanded for further development “certain disputed is-

sues which conceivably might show plaintiffs to have a

cause of action.“ By an order issued February 10, 1976,

this court, en banc, granted appellees’ suggestion for

rehearing en banc and vacated the decision of the panel.

Oral argument before the full court was held on April

19, 1976.

I. BACKGROUND

The factual background of this case has been developed

extensively in other decisions of this court.“ To aid

present consideration, we review briefly the facts perti-

The Senators and Representatives shall receive a Com-

pensation for their Services, to be ascertained by Law,

and paid out of the Treasury of the United States. They

shall in all Cases, except Treason, Felony and Breach

of the Peace, be privileged from Arrest during their

Attendance at the Session of their respective Houses,

and in going to and returning from the same; and for

any Speech or Debate in either House they shall not be

questioned in any other place.

Art. I, § 6, el. 1.

*McSurely v. McClellan, 172 U.S.App.D.C. 364, 369, 521

F.2d 1024, 1029 (1975).

See McSurely v. McClellan, 138 U.S.App.D.C. 187, 189-

90, 426 F.2d 664, 666-67 (1970); United States v. McSurely,

154 U.S. App. D.C. 141, 143-47, 473 F.2d 1178, 1180-84 (1972);

nent to this appeal, drawing generously on the outline

of facts in the panel decision.’

In 1967 Alan and Margaret McSurely were organizers

for the Southern Conference Educational Fund, Inc.,

in Pike County, Kentucky. Alan McSurely was also af-

filiated with the National Conference of New Politics

and Vietnam Summer, both unincorporated associations.

On the night of August 11, 1967, following issuance of an

arrest warrant charging Alan McSurely with seditious

activities against the Commonwealth of Kentucky in vio-

lation of KRS 432.040 and a search warrant calling for

a seizure of seditious material, officials of Pike County

arrested both the McSurelys and seized a large volume

of books, posters, pamphlets and other materials found

in their home.

On September 14, 1967, in response to a complaint

filed by the McSurelys, a three-judge district court, for

the Eastern District of Kentucky, found the Kentucky

sedition statute facially unconstitutional, on grounds of

First Amendment overbreadth and vagueness and fed-

eral preemption, and enjoined state prosecution of the

McSurelys under the authority of Dombrowski v. Pfister,

380 U.S. 479 (1965).* In its order, the court directed

Thomas B. Ratliff, Commonwealth Attorney for Pike

County, to hold in safekeeping the seized materials,

McSurely v. McClellan, supra note 5, 172 U.S.App.D.C. at

369-73, 521 F.2d at 1029-33.

Reference will also be made throughout this opinion to the

stipulations that were entered into, on December 5, 1967,

between counsel for the McSurelys and the United States fol-

lowing the decision in McSurely v. Ratliff, 282 F. Supp. 848

(E.D.Ky. 1967) (hereinafter Stip.), App. 20-22; and to De-

fendants’ Appendix in the related case, United States v.

McSurely, 154 U.S.App.D.C. 141, 473 F.2d 1178 (1972)

(hereinafter D. A.), which was filed as part of the record

in this action on September 14, 1973.

*McSurely v. Ratliff, 282 F. Supp. 848 (E.D.Ky. 1967).

pending possible appeal of the court’s decision to the

Supreme Court.’ Shortly thereafter, Lavern Duffy, As-

sistant Counsel to the Subcommittee, telephoned Ratliff

to inquire about the seized items.“ In a stipulation en-

tered into after the three-judge court decision, counsel

for the McSurelys and the United States agreed that

„t jhe aforesaid telephone call represented the only con-

tact” between Duffy and Ratliff.“

As a result of the Duffy call, on October 8, 1967, John

Brick, an investigator for the Subcommittee, traveled to

Pikeville. After Ratliff confirmed that the seized mate-

rials contained information relating to activities of or-

ganizations in which the Subcommittee was interested,

Brick examined photocopies of 234 documents delivered

to his Pikeville mote! room by Thadeus Scott, a Com-

monwealth Detective. The following morning, October 9,

Scott drove Brick o the Pike County Court House, where

Scott’s assistant, Herman Dotson, opened a locked door

to the walk-in vault room in the Commonwealth Attor-

ney’s office which housed the originals of the seized mate-

rials. After examining these documents, Brick proceeded

to the United States Post Office in Pikeville, where he

inspected the file of three-judge court action, asking for

It is further ordered that all books, papers, documents

and other material now in the custody of the Common-

wealth Attorney of Pike County, Ratliff, reflected by the

Inventory filed in this action continue to be held by him

in safe keeping until final disposition of the case by

appeal or otherwise.

D. A., II. 962.

% Apparently in response to queries from reporters, Ratliff

had previously announced that the seized materials would be

made available to congressional committees. See Answer of

Thomas Ratliff, swpra note 3, at 2A; Ratliff's testimony at

the McSurelys’ contempt trial, D.A., 1, 399.

* Stip. 3, App. 20.

copies of the September 14 order and the inventory of

seized items. On October 12, Brick returned to Pike

County Court House, where, again accompanied by 8c

and Dotson, he reexamined the seized materials for four

hours and, according to a stipulation agreed to by the

McSurelys’ counsel, for the first time took notes of the

contents of the documents. Apparently, Brick was pro-

vided with copies of 234 of the documents, which he

took with him on his return to Washington.”

On October 16, 1967, at Senator McClellan’s direction,

Brick prepared subpoenas duces tecum for certain of the

McSurely materials in Ratliff’s possession which the

Senator had determined would be relevant to the Sub-

committee investigation of the April, 1967 riot in Nash-

ville, Tennessee. Plaintiffs filed motions with the three-

judge court to prevent Ratliff from releasing the seized

materials to the Subcommittee and to direct him to re-

turn the documents to them. Considerable litigation en-

sued, culminating in a decision by the Court of Appeals

for the Sixth Circuit, on July 29, 1968, ordering the re-

turn of the materials because the time for appeal of

the three-judge district court judgment had expired, but

without prejudice to the right of the Subcommittee to

* Stip. 11, App. 21.

* Stipulation 9 states that on the morning of October 9,

1967, “Mr. Brick brought with him the xeroxed material

which Mr. Scott had furnished to him the night before and

returned it to Mr. Scott.” App. 20-21. This appears to be

an error, because Brick himself, in testimony at the Mc-

Surelys contempt trial, stated that he took back to Wash-

ington the 234 photocopies that Scott had given to him on

October 8, and these were returned to Scott on August 18,

1968, and received by the McSurelys on November 8, 1968.

D. A., Il, 728-30. Appellants concede this was the case, Br.

for Appellants at 7. This court so found in our 1972 ruling,

United States v. McSurely, supra note 7, 154 U.S.App.D.C.

at 145-46, 154, 473 F.2d at 1182-83, 1191.

proceed with the enforcement of its subpoenas." On

November 8, the district court for Kentucky directed

the return to the McSurelys of the seized items, and

on the same day the MeSurelys received the 234 copies

that had been given to Brick.”

Upon receipt of these materials, the McSurelys were

immediately served with new subpoenas similar to the

original ones. The McSurelys appeared before the Sub-

committee, on March 4, 1969, but refused to produce the

subpoenaed materials. Pursuant to a Senate resolution,

they were indicted for contempt of Congress on August

29, 1969. They were tried in the United States District

Court for the District of Columbia. They were con-

victed on June 20, 1970. On appeal this court reversed

the conviction, the majority taking the position that

“the framing by the Subcommittee of the subpoenas

relied upon here for conviction of the McSurelys was

based upon information derived from unconstitutional

searches, both by state officials and by the Subcom-

mittee’s investigator.” United States v. McSurely, 154

U.S. App. D. C. 141, 155, 473 F.2d 1178, 1192 (1972).

The action for damages presently under consideration

was originally filed in the District Court for the District

of Columbia on March 4, 1969, the same day that the

**McSurely v. Ratliff, 398 F.2d 817 (6th Cir. 1968). 8

discussion in note 58 infra.

There is some dispute as to when Brick returned the 234

copies. Defendants assert that Brick made the return to

Commonwealth Detective Scott on August 14, 1968 for which

he received a receipt, although the actual transfer to the

McSurelys did not take place until November 8 D. A., II,

730. Plaintiffs counter that Brick retained possession until

the November 8 transfer. To the extent this issue is relevant

to the claims that survive our partial grant of summary

judgment on the ground of legislative immunity, see note 25

infra, it is a matter for initial determination by the District

Court on remand.

orts by plaintiffs.”

the Supreme Court decided Doe v. McMillan, 412

U.S. 306 (1973), the federal defendants moved for re-

consideration or certification under 28 U.S.C. 1292 d

of the issue of their legislative immunity. The District

Court denied this motion on July 9, 1973. This appeal

followed.

II. THe Issve ON APPEAL

The sole issue here is whether the federal defendants

enjoy absolute immunity under the Speech or Debate

Clause, both as a matter of substantive defense and

as a bar to further judicial inquiry, for the conduct al-

lla

proach of the Supreme Court in Doe v. McMillan, 412

U.S. at 325, we decide here only the threshold question

of legislative immunity, indicat ing] nothing as to

whether (plaintiffs) have pleaded a good cause of action

or whether {defendants} have other defenses, constitu-

tional or otherwise.”

The panel decision characterized the activities alleged

in the amended complaint as falling into seven categories.

All are asserted to have been engaged in by the federal

defendants, in conspiracy with defendant Ratliff, for the

purpose of harassing and intimidating plaintiffs and the

organizations with which they may have been associated,

driving plaintiffs out of Pike County, or carrying out a

“personal vendetta” of defendant McClellan. The seven

categories are as follows:

(1) The unlawful search and seizure of the Me-

Surelys’ books and papers by Kentucky authorities.

(2) The inspection by Brick of these unlawfully

seized materials.

(3) The transport by Brick of copies of 234 docu-

ments to Washington.

(4) The inspection of some or all of these 234 copies

by the staff of the Subcommittee.

(5) The use of the copies as the basis for issuance

of subpoenas for t the documents.

(6) The procurement of contempt of Congress cita-

tions against the plaintiffs by consciously withhold-

ing from the Senate the facts relating to the chal-

lenged subpoenas.

decision. McSurely v. McClellan, supra note 5, 172 U.S. App.

D.C. at 370-72, 521 F.2d at 1030-32.

that plaintiffs’ action is not entirely foreclosed by leg-

islative immunity. However, some of the allegations im-

plicate legislative activity falling within the protective

ambit of the Clause. To ensure that appellants are not

put te the burden of defending themselves as to their

protected legislative activity, we proceed to identify for

III. Conpuct SUBJECT TO FURTHER PROCEEDINGS

Previous decisions of the Supreme Court make clear

that the Speech or Debate Clause, designed to preserve

has been “read broadly to effectuate its purposes,”

United States v. Johnson, 383 U.S. 169, 180 (1966), in-

Kilbourn v. Thompson, 1 Us 168. 204 A Ac-

„ McSurely v. McClellan, supra note 5, 172 U.S. App. D.C.

at 378. 521 F.2d at 1033.

For a discussion of the claim based on dissemination to

persons or agencies outside of Congress, see note 25 infra.

13a

mittee hearings, preparation of committee reports, au-

thorization of committee publications and their internal

distribution,” and issuance of subpoenas concerning a

subject “on which ‘legislation could be had“. Aides

are protected for conduct which would enjoy immunity

if performed by the Members of Congress themselves.”

However, the Court has repeatedly insisted that the

Speech or Debate Clause if subject to “finite limits,” ”

refusing to stretch its p ive umbrella “beyond the

legislative sphere” to conduct not “essential to legislat-

ing. We now turn to those parts of the amended

complaint that make allegations of conduct that may

have breached those “finite limits,” and are subject to

further proceedings on remand.

A. Dissemination Outside of Congress

We discuss, first, the allegation of dissemination of

some or all of the 234 documents to individuais or

agencies outside of the Subcommittee. To the extent

plaintiffs charge dissemination outside of the Halls of

Congress, the federal defendants are not immune to

further questioning.” That Senators generally perform

See Doe v. McMillan, 412 U.S. 306, 311-13, 317-18 (1973) ;

Gravel v. United States, 408 U.S. 606, 615-16, 624, 628-29

(1972); Tenney v. Brandhove, 341 U.S. 367, 377-78 (1951).

See Eastland v. United States Servicemen’s Fund, 421

U.S. 491, 504-06 (1975).

See Eastland v. United States Servicemen's Fund, 421

U.S. at 507; Doe v. McMillan, 412 U.S. at 317-18; Gravel v.

United States, 408 U.S. at 620-22. Compare Dombrowski v.

Eastland, 387 U.S. 82, 84-85 (1967) discussed in note 36

infra.

Doe v. McMillan, 412 U.S. at 317.

„Gravel v. United States, 408 U.S. at 621, 624-25.

* The claim of dissemination of some or all of the 234

documents to the Internal Revenue Service (IRS) was not

14a

certain acts in their official capacity as Senators does

not necessarily make all such acts legislative in na-

ture.” Gravel v. United States, 408 U.S. 606, 625

(1972). Even though Members of Congress or their

made in the amended complaint. This claim arose because

of the disclosure of certain IRS documents, obtained as a

result of a Freedom of Information Act suit, which indicated

contacts, beginning on August 28, 1968, between members of

the Subcommittee staff and the IRS concerning formal access

to each other's files.

On November 25, 1974, plaintiffs filed a supplemental affi-

davit lodging these recently disclosed materials with the

court. The federal defendants countered on January 24, 1975,

arguing that even if the IRS had gained access to the Sub-

files at some point after August 28, 1968, the

McSurelys could not have been harmed thereby because the

ealth Detective Scott

the

January 31, 1975, dispute both that the documents were

turned over to Scott on August 14, 1968 and that no copies

were made. Since we affirm the District Court’s denial of

summary judgment on this claim, we leave the resolution of

this question to the District Court on remand.

Plaintiffs’ amended complaint aiso alleges that Brick ex-

hibited copies of the 234 items to unknown persons causing

plaintiffs damage and embarrassment, and that McClellan

“used the instrumentality of the [Subcommittee] investiga-

tion to carry out a personal vendetta between himself and

a certain personage of prominence named in some of the

private correspondence of the plaintiff Margaret McSurely.”

Amended and Suppl. Compl. 77 19, 28 (b) (ii), App. 45, 50.

However, there is no specific allegation that Brick embar-

rassed plaintiffs or that McClellan pursued his purported

dy dissemination outside of the Subcommittee it-

self. ciaim of dissemination outside of the Halls of Con-

gress apparently rests on access by IRS officials.

15a

aides frequently intercede on behalf of constituents with

agencies of the Executive Branch or disseminate to

the public beyond “the legitimate legislative needs of

Congress” documents introduced at committee hearings,“

* See United States v. Brewster, 408 U.S. 501, 512-14

(1972) ; United States v. Johnson, 383 U.S. 169, 172 (1966).

As the Court stated in Gravel v. United States, [mlembers

of Congress are constantly in touch with the Executive

Branch of the Government and with administrative agencies

—they may cajole, and exhort with respect to the adminis-

tration of a federal statute—but such conduct, though gen-

— done, is not protected legislative activity.“ 408 U.S. at

Although the Court has yet to deny legislative immunity

to all public dissemination of materials developed in the

course of congressional proceedings, it has held significant

aspects of the informing function of Congress,“ W. Wilson,

Congressional Government 303 (1885), outside of the pro-

tection of the Speech or Debate Clause. In Gravel v. United

States, the Court found that private republication of docu-

ments introduced and made public at a committee hearing

“was in no way essential to the deliberations of the Senate,”

at least in the absence of authorization by Congress or the

full committee. 408 U.S. at 625-26.

Doe v. McMillan goes a step further, at least three Justices

holding that even congressional authorization does not serve

to immunize publication and dissemination to the general

public of “otherwise actionable materials going beyond the

reasonable requirements of the legislative function.” 412 U.S.

at 314-16 & n. 10. The Court did not elaborate at what point

general, public dissemination transcends “legitimate legis-

lative needs, but apparently this turns on the extent of the

publication and distribution. Id. at 324. In a separate con-

currence, Justice Douglas, joined by Justices Brennan and

Marshall, felt that the “informing function” was protected

by the Speech or Debate Clause, but not where exposure to

the public can be said to violate the First Amendment. /d. at

327-28. Even this view, however, denies “the absolute nature

of the speech or debate protection” that has been afforded,

say, issuance of subpoenas concerning a subject “on which

‘legislation could be had.“ See Eastland v. United States

Servicemen's Fund, 421 U.S. at 509 & note 77 infra.

such conduct falls outside of legislative immunity. It

does not meet the test set forth in Gravel, that activities

other than literal speech or debate are entitled to the

immunity of the Speech or Debate Clause only when

they are “an integral part of the deliberative or com-

municative processes by which Members participate in

committee and Hovse proceedings” with respect to mat-

ters before the House. 408 U.S. at 625. Similarly, dis-

tribution or exhibition of the 234 photocopies outside of

legislative channels is not legislative activity entitled to

absolute immunity by force of the Speech or Debate

Clause, in the absence of a claim of legislative pur-

pose.“ Such activity, if otherwise actionable under the

applicable law—a matter on which we express no opin-

ion *—may be the subject of a private suit for damages.“

As previously indicated (see text at pp. 14-16 & notes 26-

27 supra), there is a difference between actions taken by

legislators, however frequently, and legislative activity pro-

tected by the immunity of the Speech or Debate Clause.

„The decision of the panel in this case stated that although

dissemination to private individuals of unlawfully seized

materials or to executive agencies of material which are

known to have no reasonable relationship to the agencies’

task might be actionable, ‘“‘a Congressional committee lawfully

may forward to appropriate Executive agencies information

which it believes relates to their legitimate functions—-par-

ticularly in a case, such as this, where the agency itself re-

quested the information.” McSurely v. McClellan, supra note 5,

172 U.S.App.D.C. at 387, 521 F.2d at 1047.

The issue before the court at this time is simply one of

absolute legislative immunity. We leave open the question

whether disseminaton of otherwise actionable material may

be privileged on some other basis.

% We caution, however, that liability, if any, must be pre-

mised on acts of actual distribution or exhibition outside of

the Halls of Congress, and plaintiffs must prove their case

without reference to any legislative activity, such as acts

of authorization. See Doe v. McMillan, 412 U.S. at 317-18;

Gravel v. United States, 408 U.S. at 628-29.

17a

B. Inspection and Transportation of Documents

Held in “Safekeeping” by Court Order

The more difficult allegations relate to what may be

termed investigative activity. We have no doubt that

information gathering, whether by issuance of subpoenas

or field work by a Senator or his staff, is essential to

informed deliberation over proposed legislation. The

recent decision in Eastland v. United States Servicemen’s

Fund, 421 U.S. 491, 504 (1975), holds that the

power to investigate and to do so through compulsory

process plainly falls within” the test for legislative ac-

tivity announced in Gravel. We think this principle

must also extend to field investigations by a Senator

or his staff. “A congressmen cannot subpoena material

unless he has enough threshold information to know

where, to whom, or for what documents he should direct

a subpoena. The acquisition of knowledge through in-

formal sources is a necesgary concomitant of legislative

conduct and thus should be within the ambit of the priv-

ilege so that congressmen are able to discharge their

constitutional duties properly.“

However, there are “finite limits” to the shield erected

by the Speech or Debate Clause. Thus, Servicemen’s

Fund requires the court to determine whether the in-

quiry “‘may fairly be deemed within [the Subcommit-

tee’s! province.“ 421 U.S. at 506. This requirement of

congressional authorization of the inquiry by the par-

ticular subcommittee involved was clearly met in this

case. In the broad, the investigative activity here con-

cerned matters “on which ‘legislation could be had.“ Id.

at 506. The Senate Resolution of August 11, 1967, au-

thorized an investigation into the causes of civil and

criminal disorder that were racking the nation during

* Reinstein & Silverglate, Legislative Privilege and the

Separation of Powers, 86 Harv. L. REV. 1113, 1154 (1973).

18a

this period. And there was reason for investigative fo-

cus on the McSurelys. A riot had occurred on April 8-9,

1967, in Nashville, Tennessee. The McSurclys have stip-

ulated that they attended a meeting of the Southern

Conference Educational Fund in Nashville immediately

before the April, 1967, riot. Commonwealth Attorney

Ratliff advised Brick in Pikeville on October 8 that some

of the materials seized from the McSurleys’ home con-

tained reference to that meeting.”

This does not end our inquiry. Even though there is

broad authorization for an investigation and justification

for focus on particular individuals, a Member of Con-

gress or congressional employee is not free to use every

conceivable means to obtain investigatory materials,

without fear of criminal prosecution or civil suit. The

Court has taken “a decidedly jaundiced view towards ex-

tending the Clause so as to privilege illegal or unconsti-

tutional conduct beyond that essential to foreclose execu-

tive control of legislative speech or debate and associated

matters such as voting and committee reports and pro-

ceedings.” Gravel v. United States, 408 U.S. at 620. In

Gravel the Court held the Senator and his aide immune

from questioning with respect to conduct that transpired

at a committee hearing, but refused to extend immunity

to grand jury questioning concerning third-party crime

or criminal conduct by the Senator or his aide related to

preparation for the hearing.“ Thus, the grand jury was

* Stip. 15, App. 21.

* Stip. 5, App. 20.

** An interesting parallel to the Gravel case can be found in

the Duncan Sandys incident. In 1938, Sandys, an opposition

member of the House of Commons, obtained and disclosed

secret military documents, allegedly in violation of the Offi-

cial Secrets Act, 10 & 11 Geo. 5, c. 75 (1920). Sandys sought to

arouse public sentiment to remedy inadequate anti-aircraft

defenses around London, a problem disclosed by the docu-

— —

19a

permitted to “trac{[e] the source of obviously highiy

classified documents that came into the Senator’s pos-

session,” provided “no legislative act is implicated by

the questions,” id. at 628, notwithstanding the fact that

those documents were an integral part of the preparation

for the committee proceeding that was held protected

conduct.** Dombrowski v. Eastland, 387 U.S. 82 (1967),

holds that the Speech or Debate Clause will not protect

a Member or employee of Congress from suit if he en-

gages in a conspiracy with state officials to obtain infor-

mation by unlawful search and seizure in violation of

the Fourth Amendment.“

ments. A military court of inquiry subpoenaed Sandys to de-

termine the source of the documents. This led to the appoint-

ment of a special committee of Commons, which determined

that the solicitation or receipt of information in contraven-

tion of the Official Secrets Act was not privileged activity.

Report for the Select Committee on the Official Secrets Act

xi (London, 1939).

See Gravel v. United States, 408 U.S. at 629-33 (Stewart,

J., disse — in part); Reinstein & Silverglate, supra note 31,

at 11 ,

In Dombrowski v. Eastland, the Speech or Debate Clause

protected Senator Eastland, who was also a subcommittee

chairman, but not subcommittee counsel Sourwine. The Court

dismissed the complaint as to Eastland because “the record

[did] not contain evidence of his involvement in any activity

that could result in liability,” but permitted trial to continue

as to Sourwine because there [was] controverted evidence

in the record . . . which afford fed] more than merely color-

able substance” to the yet unproved charge that he conspired

to violate the constitutional rights of private parties. 387 U.S.

at 84-85.

The case stands for the proposition that both a Member of

Congress and his aides are equally answerable to a charge

of conspiracy to violate Fourth Amendment rights, provided

petitioners set forth specific facts showing a genuine issue

for trial. See Note, The Scope of Immunity for Legislators

and Their Employees, 77 YALE L. J. 366, 381-82 (1967). Not-

20a

The employment of unlawful means to implement an

otherwise proper legislative objective is simply not “es-

sential to legislating.” As with taking a bribe, resort to

criminal or unconstitutional methods of investigative in-

quiry is “no part of the legislative process or function:

it is not a legislative act.” United States v. Brewster,

408 U.S. 501, 526 (1972). While “protecting the rights

of others” in such cases “may have to some extent frus-

trated a planned or completed legislative act,” the focus

on means permits the court to afford relief “without

proof of a legislative act.” Gravel v. United States, 208

U.S. at 621.“

As to the matter of conspiracy in the initial raid of

the McSurelys’ home by Kentucky authorities, the amend-

ed complaint alleges Ratliff's involvement.“ but it does

not appear to charge any of the federal defendants with

promotion of or participation in the original search and

seizure. The amended complaint merely asserts that

alt or about the time of the initial unconstitutional and

illegal raids” the federal defendants, and unknown oth-

ers, “undertook a plan of action to {c]ontinue the course

withstanding some language in the opinion, see 387 U.S. at 85,

subsequent decisions of the Court make clear that the im-

munity available is defined by the nature of the act involved,

not the status of the actor. See Gravel v. United States, 408

U.S. at 620-22; Doe v. McMillan, 412 U.S. at 315, 217-18:

Eastland v. United States Servicemen’s Fund, 421 U.S. at

507.

** See also United States v. Dowdy, 479 F.2d 213, 224 n.20

(4th Cir.), cert. denied, 414 U.S. 823 (1973).

** Amended and Suppl. Compl. J 11-14, App. 41-43. Since

Ratliff is not a party to this appeal, we have no occasion to

decide whether a state prosecutor enjoys absolute immunity

in a 42 U.S.C. § 1983 suit for actions undertaken in an in-

vestigative capacity, a question left open in the Supreme

Court’s recent decision in Imbler v. Pachtman, 424 U.S. 409,

430-31 & n.32 (1976).

2la

of action undertaken by defendant Ratliff ....”* Al-

though there is a certain tolerance in the federal system

of lapses in pleading and curative amendments, at this

late stage of an action which was originally filed on

March 4, 1969, we must hold plaintiffs to their failure

specifically to allege that any of the federal defendants

promoted or participaced in the Kentucky raid.“ Ap-

pellants are entitled to dismissal at this juncture of any

claim that they participated in the initial unlawful seiz-

ure by the Kentucky officials.

The amended complaint clearly charges a conspiracy

of the federal defendants, in concert with Ratliff, to in-

spect, obtain copies of, and transport back to Washington

private and personal correspondence among the seized

materials “notwithstanding the [safekeeping] order of

the United States District Court,” and “without knowl-

edge of the plaintiffs... .”“ Although plaintiffs have

not sharply articulated their theory of liability, their al-

legations are unmistakably addressed to a wrongful

inspection and transportation of documents (causing

constitutiona] injury) which were independent of the

* Amended and Suppl. Compl. 7 18, App. 43-44.

We note that the McSurelys had stipulated in an earlier

case that Subcommittee assistant counsel Duffy did not have

any contact with Ratliff until their September, 1967 telephone

call, more than a month after the raid, Stip. 2-3, App. 20; and

there is no evidence in the record at present that Brick, or

any other individual associated with the Subcommittee,

— to Kentucky until October 8, almost two months after

the raid.

If in the course of discovery on the claims that survive

the legislative immunity bar evidence develops as to the com-

plicity of the federal defendants in the original raid, plaintiffs

may seek to amend their complaint, subject to the require-

ments of Fed.R.Civ.P. 15.

* Amended and Suppl. Compl. { 19, App. 45.

22a

initial raid by Kentucky officials.“ Without deciding

whether Brick, and the others allegedly acting in concert

with him, did indeed violate the Fourth Amendment by

his inspection and transportation back to Washington of

documents that were under a court-imposed “safekeep-

ing” order, and, if so, whether other defenses are avail-

able to escape or mitigate liability in damages, there is

evidence in the record as it presently stands “which af-

fords more than merely colorable substance” to the claim

of an independent Fourth Amendment violation by

Brick.“

We note that the prior decision of this court reversing

the McSurelys’ conviction for contempt of Congress was

premised on the fact that Brick committed an indepen-

dent Fourth Amendment violation by his unauthorized

inspection and transportation back to Washington of the

234 documents.“ Although our prior decision is not res

The focus here is on the illegality committed by the fed-

eral defendants, for it is their employment of means in vio-

lation of the Fourth Amendment, if any, that would bring

this case within Gravel v. United States and Dombrowski v.

Eastland.

As is explained in part V infra, we do not at this juncture

pass on whether the Fourth Amendment claim should be dis-

missed as to defendants McClellan, Adlerman and O'Donnell,

even though plaintiffs have made no factual proffer of “in-

volvement in any activity that could result in [their] lia-

bility.” Dombrowski v. “astland, 387 U.S. at 84.

„„ T)he thrust of“ the McSurelys’ appeal in that case was

“upon the basic constitutional issue of unlawful search and

seizure, not only by the Kentucky officials, but later by a

United States Senate Subcommittee. It is their position that

their refusal to comply with the Subcommittee subpoenas can-

not support contempt convictions when the subpoenas them-

selves were based on an unauthorized inspection by the Sub-

committee investigator of documents which had been seized

by state officials in Kentucky in violation of the Fourth

Amendment and under an unconstitutional statute.” United

23a

States v. McSurely, supra note 7, 154 U.S.App.D.C. at 144,

473 F.2d at 1181 (emphasis supplied). Throughout the opin-

ion the court makes clear that the conviction must be reversed

because the subpoenas “were the product of the unauthorized

inspection and search of the documents by an agent of the

Subcommittee itself’—the product of an independent Fourth

Amendment violation by the Subcommittee through the ac-

tious of its investigators. See id. at 145-46 & n.8, 147, 154-

55, 157, 473 F.2d at 1182-83 & n.8, 1184, 1191-92, 1194.

This was not a case of mere “derivative use by the Sub-

committee of the forbidden fruits of the initial illegality of

Kentucky authorities. In addition to Weeks v. United States,

232 U.S. 383 (1914), which established the exclusionary rule

for federal prosecutions, the McSurelys relied on Silverthorne

Lumber Co. v. United States, 251 U.S. 385 (1920). See 154

U.S.App.D.C. at 147, 473 F.2d at 1184. In Silverthorne the

Court struck down a contempt conviction for refusal to comply

with a grand jury subpoena for originals of documents that

had been previously unlawfully seized by the Government and

ordered returned by a district court. As Justice Holmes noted,

“the case is not that of knowledge acquired through the

wrongful act of a stranger, but it must be assumed that the

Government planned or at all events ratified the whole per-

formance.” 251 U.S. at 391. Silverthorne did not involve

“knowledge of [facts] gained from an independent source

[which] may be proved like any others, but [rather] know!-

edge gained by the government's own wrong [which] cannot

be used by it in the way proposed.” Id. at 392.

Judge Wilkey, concurring in the 1972 reversal of the

McSurelys’ conviction, explained that “Justice Holmes prop-

erly refused to allow a subsequent regular subpoena to remove

the taint on evidence which had been discovered in a previous

illegal search,” because [the knowledge obtained from the

illegal search would have made the subsequent documents in

effect their own fruit.” 154 U.S.App.D.C. at 159 & n.3, 473

F.2d at 1196 & n.3. Moving to the case before him, Judge

Wilkey noted that “some degree of active participation by

the Subcommittee’s investigator in a violation of the Me-

Surelys’ Fourth Amendment rights, f that violation was also

the sole source of the information upon which the subpoenas

were issued, might justify refusal to enforce the subpoenas.”

Id. at 164, 473 F.2d at 1201. However, Judge Wilkey decided

to reverse the conviction on (t) he sounder ground” of lack

24a

judicata as to appellants who were not parties to the

therein are surely pertinent to the determination

whether plaintiffs have made enough of a proffer of un-

constitutional investigative activity to survive a motion

for summary judgment grounded on legislative immu-

nity. In unmistakable terms, this court rejected the con-

tention that Brick’s conduct was merely passive receipt

of materials from one who had lawful custody and au-

thority to grant access to a legislative investigator. We

stated:

That activity might more appropriately be de-

scribed (1) as an unconstitutional exercise of power

by the Commonwealth attorney, Ratliff, and his sub-

ordinates at a time when Ratliff had no right what-

ever in and to these papers except to hold them in

safekeeping (pending appeal) pursuant to the order

of the three-judge court; and (2) as an unlawful

encroachment by the Subcommittee investigator him-

self upon the rights of the McSurelys under the

Fourth Amendment. Not only was the search and

seizure of appellants’ property by the Common-

wealth officials illegal, but the subsequent search and

use of that property by the Subcommittee investi-

gator, with the cooperation of the Commonwealth

attorney, violated appellants’ constitutional right to

have their property safe and secure from unwar-

ranted inspections.

United States v. McSurely, 154 U.S.App.D.C. at 155, 473

F.2d at 1192.“

This case is shaped by appellants’ position in the plead-

ings. It does not involve, nor require probing what legal

of pertinency of some of the subpoenaed material to the valid

subject of the legislative inquiry.” Id. at 166, 473 F.2d at

1203.

See also 154 U.S.App.D.C. at 154, 473 F.2d at 1191.

25a

consequences would be appropriate for, an instance of a

truly passive receipt by Subcommittee personnel. This

is not à case where appellants had nothing more to do

with the seized documents than to be in the office at a

time when, without prearrangement, Ratliff spontaneous-

ly either deposited the documents on Brick’s desk in the

Subcommittee office in Washington or disclosed their con-

tents to the public at large.“ The pleadings before us

are entirely congruent with the situation as -presented

in the stipulations of counsel for the McSurelys and the

United States in an earlier case and Ratliff's testimony

at the contempt trial, that the inquiry was initiated by

the Subcommittee, and that Brick took active steps to ob-

tain access to the seized materials and cart back from

Kentucky to Washington copies of the McSurelys’ docu-

ments, including two separate visits to the walk-in vault

room where the originals were stored.“ Appellants’

“Judge Wilkey’s concurring opinion in United States v.

McSurely notes that “although Brick’s examination of the

McSurelys’ documents may be characterized as an illegal

subcommittee action,” there are serious line-drawing problems

in determining when active conduct ends and “passive recep-

tion of illegality seized information from others” begins.

154 U.S.App.D.C. at 165, 473 F.2d at 1202. The line to be

drawn in the case before us is fairly clear. As Justice Holmes

has pointed out, even the broadest, least controversial stand-

ard may well be arbitrary at the margin, yet that is no rea-

son for refusing to recognize differences of degree and there-

by giving no weight to important privacy interests. Cf. Had-

dock v. Haddock, 201 U.S. 562, 631-32 (1906) (Holmes, J.,

dissenting).

See Stip. 1-11, App. 20-21. Ratliff testified at the Me-

Surelys’ contempt trial that he never contacted a Member of

Congress or his staff (“I was contacted, but I did not con-

tact”). He also stated that at first he refused Brick access to

26a

counsel contend that Brick “played no role in the selec-

tion of the documents he would be given.“ Brick’s own

testimony at the contempt trial indicates that his activi-

ties included some discretion in selection of what he ex-

amined and re-examined.” Moreover it cannot rightly be

put that there is no claim within the cognizance of the

Fourth Amendment because of the cooperation of the

custodian. Cooperation of a custodian without authority

to grant access may obviate use of force, but it does not

validate an otherwise unlawful search and seizure.”

Reply Br. for Appellants at 5.

* Brick testified on direct that he did not play any part at

all in the selection” of the documents that Commonwealth

Detective Scott delivered to him in Brick’s Pikeville motel

— wee

27a

The scope cf Ratliff's actual authortiy as court-

designated custodian o hold in “safekeeping” the seized

materials remains an issue. While in the absence of the

“refinement which can occur only as a result of trial“

we can not make a conclusive determination, we can

state with fair certainty that plaintiffs have made out

(emphasis supplied). As to third-party consent, “when the

consenting party has less than a complete proprietary or

possessory interest in the searched premises, the implicated

party is usually not bound by the consent.“ Comment, Third

Party Consent to Search and Seizure, 33 U. CRI. L. REv. 797,

805 (1966). See, e. g., Stoner v. California, 376 U.S. 483, 488-

90 (1964) (hotel clerk’s apparent authority to consent to

search of guest's room held inadequate to validate search);

Chapman v. United States, 365 U.S. 610, 616-17 (1961)

(landlord's consent held inadequate even though he had not

only apparent authority but actual authority for some pur-

poses to enter leased premises, e. g., “to view waste”). See

also United States v. McSurely, supra note 5, 154 U.S.App.

D.C. at 164 n.23, 473 F.2d at 1201 n.23 (Wilkey, J., concur-

ring).

In connection with a disposition on the merits, there may

be available to Brick a qualified defense to the damages action

(not an absolute immunity from suit) of “good faith and

reasonable belief in the validity of the search“ —a matter

on which we express no opinion. See, e.g., Bivens v. Six Un-

known Named Agents of Federal Bureau of Narcotics, 456

F.2d 1339, 1348 (2d Cir. 1972). We cannot anticipate wha‘

might be involved if such a defense is proferred. We are

aware of fragments of Brick's position as presented at the

McSurelys’ contempt trial—that he believed in good faith

that Ratliff had authority to show him the documents, D. A.,

II. 728, and learned of the court's “safekeeping” order when

he examined the court’s file on October 9, 1967, his last day

in Pikeville on the first visit, id. at 737-38. Assuming good

faith in his first inspection, other issues would remain—con-

cerning his second visit; and his transporting the documents

with awareness of the court's “safekeeping” order, without

the court’s permission, McSurelys’ consent, or arrangement

for a committee subpoena.

Dombrowski v. Eastland, 387 U.S. at 84.

— 'm ẽů»ü

28a

a prima facie case to the effect that the purpose of the

“safekeeping” order of the three-judge court was to pre-

serve the seized items both for the MeSurelys' benefit and

for the orderly administration of the judicial process

through “appeal or otherwise,” and that Brick’s investi-

gative activity outside of the channels established by the

court violated its order.

The three-judge court had found unconstitutional on

grounds of First Amendment overbreadth and vague-

ness and, alternatively, federal preemption the Kentucky

sedition statute urder which the original raid was made.

The court also enjoined further state prosecutions under

the statute, largely because it discerned a concerted ef-

fort by state and county officials to “freeze” the Mo-

Surelys and their associates out of Pike County.“ With

the statutory predicate declared unconstitutional, there

was no legal justification for the intrusion into the Me-

Surelys’ home or for the seizure of their papers, and

certainly none for the retention of those papers. The

court did not return the seized materials to their owners

because it sought to preserve the existence of the res in

the event of appeal to, and reversal by, the Supreme

Court. Toward this end, the court made Ratliff, then the

„[ Tjhe conclusion is inescapable that the criminal prose-

cutions were instituted, at least in part, in order to stop

plaintiffs’ organizing activities in Pike County. That

effort has been successful. Not only has there been the

“chilling effect” on freedom of speech referred to in

Dombrowski [v. Pfister, 380 U.S. 479 (1965)], there

has been in fact a freezing effect. The Governor has

issued a public statement that federal funds to the

Appalachian Volunteers should be discontinued. Plain-

tiff’s possessions have been seized and impounded and

they have been placed in jail. . . . Clearly, the criminal

prosecutions have put a damper on plaintiffs’ freedom

of speech, as well as on others who might be in sympathy

with their objectives.

McSurely v. Ratliff, supra note 8, 282 F. Supp. at 852-53.

—— eee

29a

state’s chief attorney for the county, custodian over the

documents for a limited purpose, but it did not empower

him do act without further permission to make these

materials available to anyone of his choosing.” Ratliff

was apparently of this view at first, for he testified at

the McSurelys’ contempt trial that he tried to obtain

the court’s permission before granting Brick access to

the documents. Without obtaining the court's permis-

sion,“ or seeking the consent of the McSurelys or their

lawyer, or even advising his co-custodian, the United

The court, on September 11, 1967, upon the motion of

the McSurelys’ counsel that the seized materials be impounded

and that defendant Rat!'? safeguard such material, and pur-

suant to the agreement of the parties, directed (1) that the

materials be kept in the custody of Ratliff and the United

States Marshal for the district, Archie Kraft, and that the

co-custodians make an inventory of the documents; and (2)

that Ratliff return to the McSurelys “such personal articles

and property as he does not deem material to the investiga-

tion and prosecution herein.” Three days later, on finding

KRS 432.040 facially unconstitutional and enjoining state

prosecution of the McSurelys, the court issued its “safe-

keeping” directive. This satisfied in part the request of

McSurelys’ counsel, and was responsive to the McSurelys’

privacy interests, modified only to obviate mootness.

‘* Ratliff testified that he “was admonished” by the court

“to keep the materials [in the walk-in vault room of the Com-

monwealth Attorney’s office in the County Court House]

and agreed to do so,” D.A., I, 404; and that before granting

Brick access to the materials he made “strenuous efforts to

contact one or all of the three judges,” and although he could

not find Judges Combs and Gordon he “did talk to Judge

Monahan,” id. at 406. Although later on in the testimony

Ratliff stated in oblique fashion “I had my permission,” id.

at 407, this court in United States v. McSurely, supra note 7,

154 U.S. App. D.C. at 165 n.8, 473 F.2d at 1183 n.8, found

that he merely “contacted the third“ judge, and “there is no

evidence that Ratliff received any formal permission in the

form of a court order authorizing inspection of the McSurelys’

seized property by the Subcommittee investigator.”

30a

States Marshal.“ Ratliff acceded to Brick’s request for

access.

The seriousness of the situation is not mitigated by

the possibility that the three-judge court might have

deemed it appropriate to honor a request from Ratliff

or the Subcommittee to permit Brick to examine perti-

nent papers. Indeed, that only accentuates the gravity

of the situation. Instead of acting lawlessly, the Subcom-

mittee investigator should have used proper process

which, in turn, would have permitted the court, if it

granted the request, or the McSurelys, if their permis-

sion had been sought, to safeguard against encroachment

beyond the legitimate legislative sphere, into personal

and private papers that lacked even arguable relevance

to the legislative inquiry.

Nor do we think that events occurring subsequent to

Brick’s actions in Pikeville on October 8-9 and 12, 1967,

rebut plaintiffs’ present showing that Brick committed

an independent Fourth Amendment violation. If Brick’s

prior search-and-taking was unlawful, it could not be

sanitized by the subsequent issuance by the Subcommit-

tee of subpoenas duces tecum. Nor can its validity be

established by the subsequent orders of the three-judge

court, issued while its September 14, 1967, order was

still subject to appeal and review, refusing to direct Rat-

liff to return to the McSurelys the seized documents

called for by the Subcommittee subpoena.“ The issue

s Ratliff acknowledged that he did not seek the approval of

the McSurelys, their counsel, or United States Marshal Kraft,

co-custodian for the seized materials. D.A., I, 408.

See discussion in section III C, infra.

See, e.g., Silverthorne Lumber Co. v. United States, 251

U.S. 385 (1920), discussed in note 44 swpra.

These orders issued on October 30 and December 13,

1967. Following the Supreme Court’s dismissal of the Mc-

Surelys’ appeal for want of jurisdiction, the Court of Appeals

— ———᷑ ee

3la

before the court was whether the McSurelys had a right

to bar access to documents sought by a facially proper

subpoena duces tecum. Apparently, and appellants do not

contend otherwise, this matter was decided without re-

gard to Brick’s pre-subpoena activities. The court's

decision to honor proper process issuing from the Sub-

committee was not intended as, nor did it constitute,

for the Sixth Circuit ordered the return of the seized materials

because the time to appeal the three-judge court’s September

14, 1967 ruling had expired. The latter refused “to render an

advisory opinion” on the McSurelys’ objections “concerning

the validity and interpretation of the Senate Resolution and

the breadth of the investigation authorized thereby,” and

simply reversed the district court without prejudice to the

right of the Senate Committee to proceed with the enforce-

ment” of its subpoenas. McSurely v. Ratliff, 398 F.2d 817,

818 (6th Cir. 1968).

‘ Appellants contend in their opening brief “that at every

significant stage of this case the conduct of the federal de-

fendants has been sanctioned by the courts.” Br. for Appel-

lants at 32. They retreat somewhat from this position in their

reply brief, suggesting that if the three-judge court and the

Sixth Circuit failed to pass on Brick’s prior search and

seizure this was due to plaintiffs’ failure to bring the matter

to the courts’ attention. Reply Br. for Appellants at 10 n.9.

The McSurelys testified at their contempt trial that they

first learned of Brick’s inspection and possession of 234 copies

of their documents on December 5, 1967, and were not sure

which documents, in particular, were made available to Brick

until the 234 photocopies were returned on November 8, 1968.

D. A., II, 655-56, 681-82, 704-05, 707-09. Appellees assert that

t jhe record before the Sixth Circuit included none of the

facts which subsequently emerged as to what was done with

Mrs. McSurely’s persona! correspondence.” Br. for Appellees

at 23.

The parties have not filed with this court copies of the

record that was before the three-judge court and the Sixth

Circuit. Thus we do not know whether the McSurelys’ ob-

jections to the Subcommittee subpoena made reference to

Brick’s prior conduct. This is a matter that would benefit

from further ventilation on remand.

32a

approval of the prior search and seizure of Brick, pur-

sued in a surreptitious manner and without resort to

the procedures of the very court which had intervened

and asserted control over the seized materials.

The Calandra Doctrine

Appellants contend throughout that, in addition to the

bar raised by the Speech or Debate Clause, the Supreme

Court’s decision in United States v. Calandra, 414 US.

338 (1974), saves them from any liability on Fourth

Amendment grounds for Brick’s conduct. The theory

seems to be that if the mere use of information by a

grand jury obtained from a prior unlawful search and

seizure does not state an independent Fourth Amendment

violation, neither does the mere use by Brick and the

Subcommittee of the fruits of prior unlawful conduct by

the Kentucky authorities.

Without determining whether Calandra applies with

full force to the legislative context, we find maintenance

of the present action wholly congruent with Calandra. In

Calandra the government agent had taken custody and

authorized delivery of the seized materials to the grand

jury before there was any judicial determination of ille-

gality and ruling restricting access to the materials.”

The opposing considerations are identified in the opinions

of the panel of this court. Compare McSurely v. McClellan,

supra note 5, 172 U.S.App.D.C. at 385-86, 521 F.2d at 1045-

46, with 172 U.S.App.D.C. at 392-93, 521 F.2d at 1052-53

(Leventhal, J., concurring in part and dissenting in part).

Although Calandra holds the exclusionary rule generally

inapplicable to grand jury inquiry, the Court was careful to

preserve intact the holding of Silverthorne Lumber Co. v.

United States, 251 U.S. 385 (1920). Justice Powell, for the

Court, noted that Silverthorne was distinguishable in part

because “prior to the issuance of the grand jury subpoenas,

there had been a judicial determination that the search and

seizure were illegal.” 414 U.S. at 352 n.8. That a judicial

— — —

—

33a

Here prior to Subcommittee access a court had inter-

vened and declared the state search and seizure without

legal justifieation because the operative statute was un-

constitutional. Through the “safekeeping” directive the

court asserted control over the seized documents, and did

not authorize delivery to the Subcommittee. In Fourth

Amendment terms, Calandra involved a single search

and seizure by federal agents and mere “derivative use”

by the grand jury, whereas two separate, independent

searches and seizures took place here. When Calandra

refused to apply the exclusionary rule, it noted the avail-

ability of an action for damages for the unlawful taking

by government agents.“ To raise Calandra as a bar to

this action is to extend that decision beyond its rationale

and express limitations, to the effect that there is no

action for any constitutional wrong by federal defend-

ants, with the McSurelys “necessarily left remediless in

determination of illegality preceded issuance of the subpoenas

in Silverthorne rendered inapplicable a major concern of the

Court: the fear that allowance of pre-indictment suppression

hearings would hopelessly disrupt the orderly progress of

grand jury investigations. Id. at 349-50. Thus, even assuming

arguende that Calandra applies with full force to legislative

inquiry, our 1972 ruling in United States v. McSurely remains

good law. As we develop in note 44 supra, this court’s 1972

decision rested, by analogy to Silverthorne, on the independent

illegality committed by an investigator’s circumvention of

judicial control over seized wocuments after a ruling that

the initial seizure was made without legal justification.

it should be noted that, even absent the exclusionary

rule, a grand jury witness may have othe: remedies to

redress the injury to his privacy and to prevent a fur-

ther invasion in the future. He may be entitled to main-

tain a cause of action for damages against the officers

who conducted the unlawful search. .. . In these circum-

stances, we cannot say that such a witness is necessarily

left remediless in the face of an unlawful search and

seizure.

414 U.S. at 354-55 n.10.

34a

the face of an unlawful search and seizure.” 414 USS.

at 354-55 n.10. Calandra does not bar plaintiffs’ action

against Brick, and any federal defendants who acted in

concert with him, for acting outside of judicial channels

in inspecting the materials in court safekeeping and

transporting copies back to Washington.

C. Selection and Seizure of Documents Concededly

Irrelevant to Legislative Inquiry

We hold that even if Brick’s examination of the mate-

rials had not violated the three-judge court’s “safekeep-

ing” order, trial may proceed on plaintiffs’ claim that

Brick’s selection and transportation back to Washington

of documents of a private nature which he acknow!-

edged to be irrelevent to the Subcommittee inquiry vio-

lated their right of privacy and is outside the protection

of legislative immunity. This case is unusual because

Among the 234 items which Brick carried back to Wash-

ington were some “personal letters,“ as Brick conceded te

Government counsel during his testimony at the contempt

trial. D.A., II. 727-28. Government counsel, Mr. Bress,

acknowledged “that the list of documents, copies of which

Brick had but later returned according to the record, con-

tains confidential letters. D. A., I. 431-32. The documents that

Brick took to Washington were introduced into the record of

the contempt trial as a defendants’ «xnibit, and are described

in D. A., II. 628-49.

Appellees focused particularly on the fact that at least one

of these was a love letter to plairtiff Margaret McSurely from

Drew Pearson, a prominent cciumnist (Document No. 201),

because Brick’s testimony establishes that he not only ex-

amined the love letter in Kentucky, took it to Washington, but

also singled it out to show to defendant McClellan because

it was written by this prominent columnist. D.A., II, 730-31.

Defendant McClellan's affidavit acknowledges, without com-

ment, Brick’s testimony on this point. App. 60.

„% Br. for Appellees at 11, 13-15; Amended and Suppl.

Compl. / 18 (b), 19, App. 44-45.

35a

Brick in testimony at the McSurelys’ contempt trial con-

ceded that when “he went to Pikeville to examine the

documents in the Court House,” he looked through the

papers and books and determined there were “many”

items that he “didn’t need at all,” including a letter ad-

dressed to plaintiff Margaret McSurely, as “Dearest

Cucumber,” from a prominent newspaper columnist.”

The record contains the following exchange between the

McSurelys’ counsel, Mr. Stavis, and Brick (D.A., II, 734-36) :

Q (Mr. Stavis): Did you tell Mr. Dotson or any of the

folk with whom you met there that there was some of

that stuff that you didn't think you needed?

A (Brick): Yes.

Q: Did you give it back to them?

A: No.

Q: Did you need that letter signed Dearest Cucumber

or addressed, Dearest Cucumber? Mr. Bress (Govern-

ment counsel): Objection. Irrelevant.

The Court: He may answer the question.

The Witness: No. Didn't you say signed Dearest Cu-

cumber and when it fact it says addressed to Dearest

Cucumber.

Mr. Stavis: No, I didn't.

The Witness: Was the question, did I need that letter?

Mr. Stavis: Yes. For the performance of your duties.

A: No, Sir.

Q: As a matter „ ‘act, in respect to the performance

of your duties, you didn't need most of the items in

that list, did you?

A: Some of them.

Q: Did you—when I was asking my questions abcut

this list of 234 items, there were lots of these items that

you didn’t need at all, correct?

Mr. Bress: Objection. Irrelevant.

[Continued]

Lee 0 ea...

36a

That the investigation of the McSurelys fell within

the broad authorization of the Senate resolution does not

render everything done by investigator Brick with re-

spect to the McSurelys privileged activity which is es-

sential to legislating.” For an activity to be considered

“essential to legislating’ it must be “an integral part

of the deliberative and communicative processes” dealing

with matters within the jurisdiction of Congress. Grave!

„. United States, 408 U.S. at 625. Even in the case of

investigation by compulsory process, the Court in Serv-

icemen’s Fund cautioned that “[a]lthough the power to

investigate is necessarily broad, it is not unlimited. Its

boundaries are defined by its source.” 421 U.S. at 504

n.15. The Court cited with approval Watkins v. United

States, 354 U.S. 178 (1957), which states that t here

is no general authority to expose the private affairs of

individuals without justification in terms of the function

of the Congress,” and “there is no congressional power

to expose for the sake of exposure.” 354 U.S. at 187,

200.

** [Continued }j

The Court: I believe he has already answered the

question.

By Mr. Bress.

Q. What was your answer?

A. Some, yes.

Q. Some that you did?

A. It was—

Q. Lots?

A. I object to the use of the word lots.

Q. Agreat many, a good many?

A. Oh, I will say many.

Let me explain.

I didn’t select any of these as I told you.

37a

In the usual case if the activity is arguably within

the legitimate legislative sphere“ the Speech or Debate

Clause bars inquiry even in the face of a claim of un-

worthy motive.” As Justice Frankfurter explained in

Tenney v. Brandhove, 341 U.S. 367, 377 (1951):

The claim of an unworthy purpose does not de

stroy the privilege. Legislators are immune from

deterrents to the uninhibited discharge of their leg-

islative duty, not for their private indulgence but

for the public good. One must not expect uncommon

courage even in legislators. The privilege would be

of little value if they could be subjected to the cost

and inconvenience and distractions of a trial upon

a conclusion of the pleader, or to the hazard of a

judgment against them based on the jury's specula-

tion as to motives.

The principle is designed to give legislators and their

aides a certain measure of elbowroom to pursue legisla-

tive activity without the inhibitions that necessarily flew

from exposure to suit because of the mere “conclusion

of a pleader” or “a jury’s speculation as to motives”

However, the immunity shield that protects conduct of

legislators and staff in an area that is at least arguably

within a proper legislative sphere, that pertains to a

subject “on which ‘legislation could be had.“ Eastland

v. United States Servicemen’s Fund, 421 U.S. at 504

n.15, and in such sphere protects against lawsuits that

are based on mere allegation or speculation, is not a

license to inva.» privacy where no legislative purpose

ean be plausibly interposed. The fact that Brick took

and transported concededly extraneous material—and it

is significant that he seized “some personal letters“ —

takes this case outside the protection of legislative im-

munity. While Servicemen’s Fund notes the legislative

nature of investigation, it reiterates that the subject

38a

must be one on which legislation could be had.

Brick’s testimony at the contempt trial ultimately may

Doe v. McMillan states the rule for inquiry into matters

arguably relevant to legislative tasks. In Doe the Court cau-

tioned that it had “no authority to oversee the judgment of

the Committee. or to impose liability on its Members if

we disagree with their legislative judgment.” 412 U.S. at

313. The Court dec'ined to second-guess a committee's de-

cision to include names of specific children and descriptions of

their conduct in the record of its hearings on the District

of Columbia public schools and in a committee report. “The

report stated that these materials were included to ‘give a

realistic view’ of a troubled school and ‘the lack of administra-

tive efforts to rectify the multitudinous problems there.

Id. at 308-09. Since the accounts of the students conduct were

broadly related to the subject matter of the committee's in-

quiry, the Court properly refused to enmesh itself in review-

ing the usefulness or necessity of the degree and type of

details included in the illustrative material assembled by the

committee.

Here the McSurelys make no claim that names or descrip-

tions of arguably extraneous activities should have been de-

leted by Brick or the Subcommittee from documents pertinent

to the Nashville disturbances. Rather they claim that material

dealing with intimate subjects completely foreign to the com-

mittee’s inquiry was taken back to Washington. Of course,

“the legitimacy of a congressional inquiry” is not “defined by

what it produces.” Eastland v. United States Servicemen's

Fund, 421 U.S. at 509. But knowing retention and transpor-

tation of highly private, embarrassing papers, in the absence

of a claim of conceivable legislative interest, can serve no

legitimate legislative function and can have “no relation to

the business before” Congress.

As previously noted (see text at p. 26 & note 49 supra),

Brick testified at the contempt trial that he did not concern

himself with items in which he had absolutely no interest.

But if his interest in taking personal items was of a persona!

nature, whether for his benefit or for the benefit of his

superiors, rather than a legislative interest, there is no legis-

lative immunity from suit.

39a

be explained away to the satisfaction of a jury.” But

it is plainly sufficient te preclude an avtomatic dismissal

of the lawsuit at the threshold, on the basis of legisla-

tive immunity.“ “To hold otherwise would be to invite

gratuitous injury to citizens for little tf any public pur-

pose.” Doe v. McMillan, 412 U.S. at 316-17.

IV. PROTECTED LEGISLATIVE CONDUCT

We turn to the allegations pertaining to staff inspec-

tion within the Subcommittee of the 234 photocopies, the

use of the copies as the basis for issuance of subpoenas

for some of the documents, and the procurement of con-

tempt of Congress citations against plaintiffs. Here, we

find further inquiry barred by the Speech or Debate

Clause.

The law is clear that even though material comes to

a legislative committee by means that are unlawful or

otherwise subject to judicial inquiry the subsequent use

of the documents by the committee staff in the course

of official business is privileged legislative activity.” In

* Appellants suggest that Brick was merely “testifying to

his ultimate conclusion that the private correspondence was

unnecessary to the performance of his duties,” rather than

to the determination made at the time he decided to transport

— documents to Washington. Reply Br. for Appellants at 5-6

n.6.

It has been clear since Dombrowski v. Eastland, 387 U.S.

82 (1967), that the rule that prohibits lawsuits with respect

to legislative activity on mere speculative pleading does not

40a

Dombrowski v. Burbank, 123 U.S.App.D.C. 190, 192-93,

358 F.2d 821, 823-24 (1966), this court refused to en-

join the chairman and chief counsel of a Senate subcom-

mittee from using records that had been seized by state

officials in an alleged conspiracy with the subcommittee.

“Since the documents are now held by the Subcommittee,

they are accessible to the [defendants] only by virtue of

their official positions with that body. We cannot pro-

hibit, nor are we asked to prohibit, [their] use of the

documents in the course of their official business for the

Subcommittee; and neither do [plaintiffs] seek any e-

straint upon the Subcommittee itself. We also held

the defendants immune against answerability in dam-

ages for the issuance of subpoenas to obtain the records.”

The Supreme Court upheld our disposition of the “claims

which related to the take-over of the records by respond-

ents after the raids.“ Dombrowski v. Eastland, 387

U.S. at 83-84 (emphasis in original). Similarly in Gravel

v. United States, although the Court permitted grand

jury inquiry as to third-party crime or criminal acts by

requires it to scrutinize “the predicates of the criminal prose-

cutions.” Eastland v. United States Servicemen's Fund, 421

U.S. at 509-10 n.16. See Tenney v. Brandhove, 341 U.S. at 378;

Watkins v. United States, 354 U.S. at 216 (Frankfurter, J.,

concurring) .

Citing Hearst v. Black, 66 U.S.App.D.C. 313, 87 F.2d 68

(1963), where this court refused to enjoin a congressional

committee from using information obtained by having the

Federal Communications Commission take possession of tele-

graph offices and examine wholesale private messages received

and dispatched therefrom over a period of seven months. The

court noted that a victim of the unlawful dragnet seizure of

telegraph messages could not be held in contempt for refusing

to answer questions based on the unlawfully procured infor-

mation, and that an injunction could properly issue to enjoin

such a trespass were it still in progress, but refused to exer-

cise its equity power to restrain use of material

in the possession of the committee. /d. at 316, 87 F.2d at 71.

123 U.S. App. D. C. at 193-95, 358 F.2d at 824-26.

4la

the Senator or his aide “relevant to tracing the source

of obviously highly classified documents,” it barred ques-

tioning as to the Senator’s or his aide’s conduct at the

subcommittee meeting where the documents were read

into the record, the motives behind that conduct, com-

muncations between the Senator and his aide during the

term of their employment which were related to the

meeting or any other legislative act of the Senator, and

any act not in itself criminal performed in preparation

for the meeting. 408 U.S. at 628-29.

Likewise foreclosed is plaintiffs’ claim of invasion of

privacy based on retention and display of their private

papers within the Subcommittee for non-legislative pur-

poses. Although the federal defendants are not immune

from inquiry as to dissemination of the 234 photocopies

to individuals or agencies outside of Congress, dissemina-

tion within the Subcommittee is privileged activity. The

mere retention—without dissemination or use—of the

copies cannot be the subject of judicial inquiry. Such re-

tention may be subject to abuse, but judicial inquiry on a

claim that documents were retained beyond the time

needed to determine relevancy to legislative purpose would

embroil the courts in the kind of review of legislative

Br. for Appellees at 7; Amended and Suppl. Compl.

18 (b), 19, App. 44-45. See note 66 supra.

See Doe v. McMillan, 412 U.S. at 312-13.

We are not suggesting that everything physically done

within the Halls of Congress is immune to questioning. Legis-

lative functionaries that execute a resolution authorizing an

arrest, Kilbourn v. Thompson, 103 U.S. 168 (1881), or ex-

cluding a representative-elect, Powell v. McCormack, 395 U.S.

486 (1969), without basis in congressiona! power are subject

to judicial inquiry. However, under Doe v. McMillan the act of

dissemination of otherwise actionabie material is protected

activity, at least absent concession by the disseminators that

material was distributed for non-legislative purposes.

Se a

42a

performance that is prohibited by the Speech or Debate

Clause.“

The same applies to the claim based on the Subcom-

mittee’s issuance of the two sets of subpoenas and attempt

to enforce the second set by citing the McSurelys for con-

tempt of Congress. The Subcommittee here employed prop-

er process for information “on which ‘legislation could be

had.“ We note that the subpoenas called for ma-

terials that were at least arguably relevant to its in-

vestigation, but did not call for the production of Mrs.

McSurelys’ letter or any other demonstrably irrelevant

private correspondence.* Under these circumstances

„We note that Brick testified at the contempt trial that the

234 documents were maintained “by order of Senator Mc-

Clellan” in Brick’s personal file under lock and key, and that

the personal letter to Margaret McSurely from Drew Pearson

was displayed to Senator McClellan and then placed in a

sealed envelope “to be opened only by John Brick, J. S. Adams,

General Counsel and Senator McClellan.” D.A., II, 729, 732-

33. Defendant McClellan acknowledged this testimony in

his affidavit. App. 60. In the absence of the kind of admission

that was present with respect to Brick’s selection and trans-

portation of irrelevant material back to Washington, judicial

inquiry must come to a halt.

s Eastland v. United States Servicemen’s Fund, 421 U.S. at

504-07 & n.15.

The subpoenas in issue are reproduced at App. 70-74. Con-

cerning the scope of this subpoena, appellants state (Reply

Br. 7-8):

[Tihe Subcommittee subpoenas called for materials

clearly relevant to its investigation, but did not call for

the production of Mrs. McSurely’s letter or any other

private correspondence.

* We have never seen this letter and have had no interest

in attempting to discover it. However, if plaintiffs’ con-

tention that this letter was nothing more than a love

letter, and was not relevant to any possible investigation

into riots, is correct, it necessarily follows that the letter

would not have been subject to production under the sub-

— —

43a

Servicemen' Fund prevents further inquiry into plain-

tiff's charge that the Subcommittee’s purpose was to

harass and intimidate them in the exercise of their First

Amendment rights.“ The Subcommittee’s issuance of

subpoenas is privileged activity, notwithstanding plain-

tiffs’ bare allegation that the real purpose behind the

subpoenas was to “cover-up” the earlier improper con-

duct by Brick, and the further assertion that had there

been full disclosure the Subcommittee would not have is-

sued the subpoenas, and the Senate would not have ap-

proved the contempt citations."

poena. And any suggestion that the subpoenas were

utilized to obtain production of such private correspond-

ence would be totally unfounded.

The Supreme Court refused to cut back on “the absolute

nature of the speech or debate protection” even in the face

of allegations that First Amendment rights were being in-

fringed by congressional action. 421 U.S. at 509-10.

Servicemen’s Fund involved an attempt to enjoin issuance

of a subpoena duces tecum by a Senate subcommittee. We

think its rationale applies to an action for damages resulting

from a subpoena that has issued, as opposed to an action main-

tained by the Government to prosecute non-compliance with

a subpoena. Compare id. at 509-10 n. 16.

See Dombrowski v. Burbank, 123 U.S.App.D.C. at 194,

358 F.2d at 825, where this court dismissed the claim that

the subcommittee chairman and chief counsel were acting

outside the scope of their authority because the records were

subpoenaed without prior subcommittee authorization, al-

though the subcommittee chairman approved in advance the

action taken. We held that subsequent ratification by the full

subcommittee was sufficient, given the subcommittee’s long-

standing interest in the matter at issue, to preserve defend-

ants’ immunity against liability in damages for issuing and

executing the subpoena. Wheeldin v. Wheeler, 373 U.S. 647,

650-51 (1963), was distinguished as a case involving service

of a subpoena “which had been approved by no one, either

before or after its issuance.”

t4a

V. ON REMAND

We hold, as a matter of law, that appellants are en-

titled to summary judgment on the allegations in the

amended complaint pertaining to the Subcommittee staff's

inspection of the 234 documents that Brick brought to

the Subcommittee, the utilization of the information ob-

tained by Brick as the basis for congressional subpoenas,

and the issuance of contempt of Congress citations

against the McSurelys. Since no allegation has been

made as to conspiracy in the original raid of the Me-

Surelys’ home, appellants are entitled to dismissal on this

point.

We leave for the District Court on remand the initial

determination as to (1) whether any cause of action

against defendants Brick and Adlerman survives their

deaths; (2) whether Brick’s inspection of the seized ma-

terial put in Ratliff’s possession under the three-judge

court’s “safekeeping” directive, and Brick’s transport to

Washington of copies of 234 documents, violated the Me-

Surelys' rights under the Fourth Amendment; (3) whe-

ther Brick selected and transported to Washington copies

of documents he knew to be wholly unrelated to the leg-

islative inquiry, and, if so, whether such conduct was

actionable under the applicable law; (4) whether any

other federal defendants acted in concert with Brick in

action for which he enjoys no legislative immunity; (9)

whether any of the federal defendants distributed copies

of documents in the Subcommittee’s possession to individ-

uals or agencies outside of Congress, and, if so, whether

such distribution was actionable under the applicable

law; and (6) other matters identified in this opinion as

requiring further development. Of course, if Brick or the

other appellants have defenses to liability, other than

the claim of absolute immunity from suit, these should

be pleaded and would be a matter for initial determina-

tion by the District Court.

45a

Although plaintiffs have alleged Brick’s involvement

in possible actionable conduct with sufficient factual par-

ticularity to permit trial to proceed as to him, the

record at present is silent on the involvement of defend-

ants McClellan, Adlerman and O'Donnell in any activity

that could result in liability.” Dombrowski v. Eastland,

387 U.S. at 84. Plaintiffs allege that the latter defendants

were acting in concert with Brick in the actions that

are pertinent. If that is so, they enjoy no greater im-

munity for conduct not “essential to legislating” than

Brick, their agent. Of course, an allegation is not proof.

But at this stage of the case, given that the argument

of parties thus far has been drawn in terms of whether

or not the Speech or Debate Clause erects a complete

barrier to this action, we are unable to say on the basis

of the undisputed facts that the other federal defend-

ants are constitutionally entitled to summary judgment

excusing them from further inquiry, even though Brick

is not. The path remains open for these defendants to

make a renewed motion for summary judgment on the

ground that the McSurelys have failed to adduce spe-

cifie facts “which afford more than merely colorable sub-

stance,” Dombrowski v. Eastland, 387 U.S. at 84, to

the assertion of concert with Brick in conduct that sur-

vives the legislative immunity bar. Since the Speech

or Debate Clause acts as an exclusionary rule and testi-

monial privilege, as well as substantive defense, plain-

tiffs must prove their case through evidence which “does

not draw in question the legislative acts of the defend-

ant Member of Congress [and his aides] or [their] mo-

tives for performing them.” United States v. Brewster,

408 U.S. at 526, quoting United States v. Johnson, 383

U.S. at 185.

Pee Le

46a

SUPPLEMENT

Since our opinion anticipates many of the points raised

in Judge Wilkey’s opinion, we have decided not to re-

trace and interlard the body of the opinion with re-

sponsive material. We think it more useful to provide

focus through the vehicle of a supplemental statement.

Most of Judge Wilkey's characteristically vigorous

opinion is beside the point. He assumes that the Fourth

Amendment liability of Congressional investigator Brick

is premised on the acceptance and use of the fruits of

the unlawful activity of another.” On the contrary, our

ruling is based on the investigator’s own unlawful ac-

tivity—the inspection and transportation of copies of

materials in violation of a three-judge federal district

court order.

We need not be detained by Judge Wiikey’s traverse

of cases like Calandra, Elkins and Sherwin. What makes

all the difference in the world is that in this case a

Federal court did issue an order, did make a determina-

tion that papers and other material had been seized by

state authorities under an unconstitutional statute, did

assert custody over the seized documents, and that inves-

tigator Brick examined them and took copies without

resort to the procedures of the Federal court that had

intervened and asserted control over the materials. It

would not be analysis but legerdemain, to characterize

Brick’s actions in violation of a court order as part

of a subsequent “transfer” inherently unreachable

"Whether another agency of the Federal Government,

United States v. Calandra, 414 U.S. 338 (1974); an agent

of a state, United States v. Elkins, 364 U.S. 206 (1960); or a

private individual acting without any governmental encour-

agement, United States v. Sherwin, No. 73-3124 (9th Cir.,

July 2, 1976) (en banc).

47a

under the Fourth Amendment. The case is entirely dif-

ferent from Calandra.”

In Calandra, the wrong was “fully accomplished by the

original search,” 414 U.S. at 354. Here the McSurelys claim

that the investigator’s conduct in violation of a court order

worked a “new Fourth Amendment wrong.” It is not simply

a matter of the timing of the judicial determination of illegal-

ity. The gravamen of the McSurelys’ complaint is that Brick

acted in violation of the order of a court that had intervened

on constitutional grounds with a ruling that entitled the

McSurelys to immediate return of what had been seized, if

the ruling were implemented immediately, and that accom-

panied a deferral of that consequence in order to avoid moot-

ness, pending appeal to the Supreme Court, with an order

restricting access to those seized materials.

Judge Wilkey (at pp. 33-36) misconstrues our discussion

of Calandra, and erroneously equates Brick’s conduct with

the situation in Calandra.

In Calandra the grand jury got its access to the documents

before there was any judicial determination that they had

been invalidly seized. The subpoena that it issued as a result of

this access could not be quashed, held the Court. (Of course,

the grand jury’s access was handled by the prosecutor who

acted as its aide.) Likewise, in the present case, the court

would not quash the subpoena issued by the subcommittee as

a result of the access it got to the documents. But the per-

son(s) who provided that access did so after a judicial de-

termination of invalidity, and that makes the difference from

Calandra in determining liability in damages. This matter

of timing was identified by Justice Powell when he distin-

guished Silverthorne Lumber Co. v. United States, 251 U.S.

385 (1920), in part because “prior to the issuance of the grand

jury subpoenas, there had been a judicial determination that

the search and seizure were illegal.” 414 U.S. at 352 n.8.

The facts show that the grand jury’s subpoena to Calandra

—obviously issued before the suppression hearing of August

27, 1971, or the trial court ruling of October 1, 1971 granting

Calandra’s motion to suppress—was explicitly identified by

the Court as an instance when the grand jury “subpoenaed

Calandra in order to ask him questions based on the evidence

seized during the search of his place of business on December

15, 1970.” 414 U.S. at 341 (emphasis added).

48a

We do not think it can be seriously argued that con-

duct like Brick’s, compounding his own inspection of

documents with transportation to permit access by others,

fails to state a Fourth Amendment violation in a case

where there has been a court order that establishes a

custodian with possession (pending appeal) of papers

seized unlawfully from plaintiffs, and provides that any

other access requires court approval (in the absence of

permission by plaintiffs).

Judge Wilkey misses the point in his argument (e. 9.

at p. 29 ff.) that Brick’s activity involves no legal injury

not already wrought by the state officials. Even assum-

ing for discussion plaintiffs had no valid claim against

any state officials for the seizure from their home, per-

haps on the theory that the taking was under a war-

rant to enforce a state sedition statute not yet held

unconstitutional, plaintiffs may nevertheless maintain an

action against Brick for his inspection and taking of

papers after the federal court held invalid both the

state statute and the continued retention of the seized

materials by the state prosecutor except as a court

custodian.

Judge Wilkey’s opinion rests on a restricted reading

of the court’s “safekeeping” order of September 14, 1967.

Physical preservation of the res—during the course

of a potential appeal to avoid mootness problems—was

one of the court’s concerns but by no means the only

or even predominant concern. This emerges from an

examination of the decision itself. The order accompanied

a full-scale decision on the merits, granting substantial

relief to the McSurelys on First Amendment grounds.

In addition to declaring the state sedition statute uncon-

stitutionally vague and overbroad, the court enjoined

49a

state prosecutions pursuant to the statute under the

authority of the landmark Dombrowski v. Pfister, 380

U.S. 479 (1965). The injunction issued largely because

the court perceived a concerted effort by state and county

officials to freeze“ the McSurelys and their associates

out of Pike County. The court’s language on this point

is illuminating. “The conclusion is inescapable that

criminal prosecutions were instituted at least, in part,

in order to stop plaintiffs’ organizing activities in Pike

County. That effort has been successful. Not only has

there been the ‘chilling effect’ on freedom of speech re-

ferred to in Dombrowski, there has been in fact a freez-

ing effect.” McSurely v. Ratliff, 282 F. Supp. 848, 852-

53 (E.D.Ky. 1967).

Judge Wilkey seeks to avoid the absurdity of a con-

struction that would make this a mere “hold safe” order

by repair carpentry, that the order at least in “spirit,”

may have required Ratliff to deny access to some “prose-

eutors“ p. 18), yet authorized him to grant access to

anyone he deemed to have a legitimate interest p. 28).

Given the context of the court’s order, and its sensi-

tivity to the First Amendment dimension of the actions

taken by Kentucky authorities against the McSurelys,

the sensible reading of the court’s order, and the one

adopted by this court in 1972," is that Ratliff was di-

rected to hold the materials as co-custodian for the court,

Our court in 1972 may or may not have had before it the

text of all the orders of the Kentucky three-judge court, but

there is no doubt that it was fully aware of their thrust. This

matter was adequately summarized in the Sixth Circuit de

cision ordering the return of the documents once the time to

appeal had expired. McSurely v. Ratliff, 398 F.2d 817, 818

(6th Cir. 1968).

As to Judge Wilkey’s attempt to dismiss this court's earlier

characterization of the scope of the “safekeeping” order as

dicta, see supra n.44, or as bad law after Calandra, see supra

pp. 32-34 & nn.61 & 80.

50a

during the period allowable for appeal, not with a right

to grant access to others as he might determine in the

exercise of personal discretion, but with questicns of

access to or other use or disposition of the materials

reserved for determination by the court. Ratliff himself

was apparently of this view, for he tried to obtain the

court’s permission before acceding to Brick’s request for

access. There is nothing in the record as it stands that

rebute this reading of the safekeeping“ order.

Judge Wilkey’s opinion makes much of the court's or-

ders of October 30 and December 13, 1967, issued before

the time to appeal the September 14 ruling had expired.

These orders pertained to a motion by the McSurelys

to enjoin Ratliff from releasing any of the seized ma-

terials called for by the Subcommittee subpoena.” The

court refused to block the Subcommittee’s access by way

of subpcena to the seized materials. Judge Wilkey's

opinion assumes that this refusal to interfere with a

facially proper subpoena of a Congressional subcommit-

tee “on a subject on which legislation could be had” is

a sub silentio approval of the challenged activity of

Brick prior to and in the absence of a subpoena or rul-

ing, and establishes that Brick’s activity had not con-

travened the court’s order.

Out of the blue, Judge Wilkey’s opinion conjures up à

judicial determination by the three-judge court. It does

not even appear that Brick’s pre-subpoena investigation

and transportation of copies of the seized documents

had been raised as an objection to the subpoena.“ More

The October 30, 1967 order may not make specific refer-

ence to the word “subpoena,” but the motion of the Me-

Surelys was unmistakably addressed to the subpoena that

Brick had served on October 17.

e See supra pp. 30-32 & n.59. Ratliff testified he contacted

one of the judges, but we do not know what in fact transpired.

His oblique assertion “I had my permission” may be relevant

5la

importantly, Judge Wilkey’s opinion does not claim that

applicable legal doctrine established then or establishes

now that prior invalidity under the Fourth Amendment

in obtaining documents—however vulnerable in a dam-

age action—would have been material as authorizing a

court to interfere with a subpoena of a subcommittee.

There is neither a statement by the three-judge court

nor any basis for implication that the three-judge court

considered it material.

The Supreme Court ruled in United States Servicemen's

Fund v. Eastland, 421 U.S. 491 (1975), that notwith-

standing allegations of First Amendment violations the

judiciary may not prevent implementation of a Senate

subcommittee subpoena duces tecum directing certain

banks to produce records of a particular account. W.

are not called upon to determine whether Servicemen's

Fund applies when the records sought are in the cus-

tody of the court. is enough—on this motion for

summary dismissal of the damage action—to say that the

action of the three-judge court in declining the Me-

Surleys’ invitation to hamper a subpoena investigation of

a coordinate branch of government, cf. Hearst v. Black,

66 U.S. App. D.C. 313, 87 F.2d 68 (1936), is not incon-

sistent with its having a view that the McSurelys could

have redress in damages for Brick's pre-subpoena con-

duct.

We hold that the District Court correctly denied the

motion to dismiss or for summary judgment on the

claim of a Fourth Amendment violation by Brick and

the federal defendants who acted in concert with him.

to a defense of good faith on the merits, but it hardly estab-

lishes that he had approval of the court. Any failure on the

McSurelys’ part to raise Briek's activity as a ground to block

compliance with a subpoena, assuming it were cognizable,

would not be an absolute bar to this private action for dam-

ages from Briek's pre-subpoena activity.

The showing made by the McSurleys suffices to avoid

any absolute bar to suit, particularly when it is com-

pared with the proffer, held sufficient in Dombrowski v.

Eastiand, 387 U.S. 82, 84 (1967), involving a possible

misdating of a committee subpoena with the result that

he date of the subpoena coincided with the date of the

nal search and seizure by state authorities. On the

record as it presently stands, Brick is not entitled to

demand absolute immunity from suit as a matter of law,

and we need not consider the possibility that the de-

fense may hereafter find and adduce material from the

record of the three-judge court that would advance the

kind of speculation raised by Judge Wilkey.“

II.

We turn to the Mesurelys' privacy claim against

Brick. Since this appeal presents only the threshold ques-

tion of immunity, we have no occasion to indicate whe-

ther they have pleaded a good cause of action or there

are defenses on the merits. Doe v. McMillan, 412 U.S.

306, 325 (1973).

Assuming for discussion that the McSurelys do not

have a cause of action for constitutional tort, because of

the reasoning of Pau! v. Davis, 424 U.S. 693 (1976), or

other authority, they may have a good claim for common

law invasion of privacy that is maintainable in federal

* Although the record as it stands would support a finding

of Fourth Amendment violation, we are not now

such a judgment. The parties have not even filed in this case

copies of the record that was before the three-judge court and

Sixth Circuit. The orders of the three-judge court relied on by

Judge Wilkey—and which we find fall short of the claims

made by him—were obtained after oral argument en banc by

Judge Wilkey

Our judgment allows opportunity for the parties to make a

systematic search of the proceedings of the three-judge court

and to present to the trial court proof and arguments based

53a

court under the doctrine of pendent jurisdiction, United

Mine Workers v. Gibbs, 383 U.S. 715 (1966), and may

accordingly move to amend their pleadings to conform to

the evidence, F. R. Civ. P. 15 b). Under Doe v. McMillan,

supra, these are matters that should not be decided on a

motion that did not present anything more than a thres-

hold barrier of absolute legislative immunity from suit.

Of course, Brick’s concession cannot bind the Sub-

committee, its members, or other of its agents. As to

the privacy claim against Brick, Judge Wilkey specu-

lates as to plausible legislative purposes behind Brick's

seizure of a love letter and other personal documents.

On the record as it stands, Brick by his own mouth

conceded that “many” of the items he brought to Wash-

ington were unrelated to his duties. Conceivably this

testimony may be explained away. As of now we are

not aware that any claim of legislative need has been

interposed for the love letter from Drew Pearson to

Margaret McSurley—a letter that Brick testified he held

in his personal file, under lock and key, on direction of

Subcommittee chairman McClellan.” Certainly the rec-

ord as it stands does not entitle Brick to summary judg-

ment.

Senator McClellan's affidavit is silent on this point.

60. There is no indication in the present record that legis-

lative use was made of the letter in question. See supra

54a

WILKEY, Circuit Judge, with whom joined DANAHER,

Senior Circuit Judge, TAMM, MACKINNON, and Ross,

Circuit Judges, dissenting: The majority remands this

ease for trial on three of the seven claims advanced

by the plaintiffs McSurelys, on the ground that, if

established, the actions of the defendant Senator and

his aides fall outside the protection of the Speech or

Debate clause. With regard to one of these subjects of

inquiry, the alleged dissemination of the McSurely docu-

ments outside the legislative sphere, we are in accord.

This was the result reached by the panel opinion.’ With

the majority action on two of the asserted claims of the

McSurelys made the subject of the remand, the inspec-

tion and transportation of the McSurely documents from

Pikeville, Kentucky to Washington, D.C., we are in seri-

ous disagreement.’

The bottom line of the McSurelys’ suit on these two

points must be that the actions of the Senate investiga-

tor Brick constituted an “unreasonable search and seiz-

ure” within the meaning of those words in the Fourth

Amendment, for if they did not, the investigative actions

521 F.2d at 1048. This wes No. (7) of the seven categories

of claims listed in the majority opinion (p. 11) and in the

panel opinion, 521 F.2d at 1033.

(2) The inspection by Brick of these unlawfully seized

materials. (3) The transport by Brick of copies of 234 docu-

ments to Washington.” Majority Op. at 11. With regard to

“(1) The unlawful search and seizure of the McSurelys’ books

and papers by Kentucky authorities,” the majority holds that

the “appellants are entitled to dismissal at this juncture of

any claim that they participated in the initial unlawful seizure

by the Kentucky officials.” (p. 21) We agree. With regard

to claims (4), (5), (6), the majority holds that “We find fur-

ther inquiry barred by the Speech or Debate clause.” (p. 39)

We agree that this is “privileged legislative activity.”

55a

of the Senate aide were admittedly’ protected by the

Speech or Debate clause.‘

Many of the key facts have been expressly stipulated °

by counsel for the McSurelys and the United States and

* The majority states the principle, which we endorse, that

investigative activity is so essential to the legislative process

that it is ordinarily absolutely privileged, provided, of course,

that the basic conditions of authorization and pertinency are

established. Maj. op. at 17-19. But this absolute privilege can

be lost where the investigator engages in a search and seizure

in violation of the Fourth Amendment. Dombrowski v. East-

land, 387 U.S. 82 (1967), cited by the majority at 19.

* The McSurelys also assert a claim of violation of privacy

against Brick alone (Maj. Op. 34-39) based on the alleged

irrelevancy of some of the documents inspected, copied, and

transported by Brick. If cognizable at all by a federal court,

this claim would be based on a Fifth Amendment due process

violation. As we show later, Part IV, the Supreme Court has

recently held in Paul v. Davis, 44 U.S.L.W. 4337 (23 March

1976) that such common law tort actions can not be based

upon Fifth Amendment or other constitutional grounds.

See Maj. op., note 7. Brick has testified to these facts in

the previous trial of contempt of Congress, and he is now

dead. Commonwealth Attorney Ratliff has testified to these

facts ; his testimony stands uncontradicted, and, indeed, is

relied upon by the majority opinion, and by the McSurelys.

The majority does characterize Ratliff's testimony on one

point, his conversation with Judge Moynahan, as “oblique.”

Maj. op. 29, note 54. But even to the extent that this charac-

terization is fair and more testimony by Ratliff or Moynahan

would amplify the conversation, a finding of actual consent is

not necessary to a decision on the scope of the custody order.

If the inspection and copying are found to be violations of the

Fourth Amendment, then the resolution of Ratliff’s and Brick’s

claims of good faith immunity from damages may be aided

by fuller testimony on efforts to obtain judicial consent. Here,

however, on the issue of violation, we believe that the record

shows that Brick and Ratliff acted in conformity with the

orders of custody. A further finding of actual consent would

be only cumulative and does not justify a remand.

56a

many others appear uncontradicted from prior testimony.

All the relevant court orders and decisions are before us,

in addition to the relevant uncontroverted facts. From

all this settled evidence, as we shall demonstrate, it can

be determined as a matter of law that the inspection and

copying did not violate the custody order. Thus, it is

likewise not necessary to supplement the text of the

motions and the orders with further findings about the

details of prior arguments, as the majority suggests

would be “benefi{cial]” for an understanding of the

custody order.“

Indeed, the plaintiffs McSurelys make no claim on the

issues of the inspection, copying, and transport of the

documents that any additional facts need be or can be

brought out. The McSurelys’ claim rests on the argument

that the admitted actions violated their rights under the

Fourth Amendment and thus were not protected by the

Speech or Debate clause. It is this argument which the

trial court sustained in denying defendants’ motion for

summary judgment and with which we understand the

majority here to agree. The defense left to the Senator

and his aides on trial thus would be a good faith defense

justifying admitted actions, which the trial court and

this court find did constitute violations of the Fourth

Amendment.

This is not the full immunity of members of Congress

and their aides, engaged in carrying out legislative duties,

guaranteed by the Speech or Debate clause of our Con-

stitution. The disposition of the case here by the en banc

majority requires the Senate defendants to undergo trial

in the District Court,’ precisely that against which the

Speech or Debate clause was designed to protect. Of

Maj. op. at 31, note 59.

We discuss later how the nature of the remand here erodes

the principle of the Speech or Debate clause

57a

course, the defendants will have the protection of quali-

fied immunity, as in Bivens v. Sir Unknown Agents* or

Scheuer V. Rhodes.’ Yet, as Justice Powell so recently

wrote in Imbler v. Pachiman:

The procedural difference between the absolute and

the qualified immunities is important. An absolute

immunity defeats a suit at the outset, so long as the

official's actions were within the scope of the immun-

ity. The fate of an official with qualified immunity

depends upon the circumstances and motivations of

his actions, as established by the evidence at trial.“

The issue here, as it was in the trial court on motion

for summary judgment by the Senate defendants, is on

the law. While the majority at the outset of their opinion

states the sole issue here is whethe the federal de-

fendants enjoy absolute immunity under the Speech or

403 U.S. 388 (1971). See also Bivens v. Six Unknown

Agents, 456 F.2d 1339 (2d Cir. 1972) (on remand).

416 U.S. 232 (1974).

Imbler v. Pachtman, 44 U.S.L.W. 4250, 4253 n. 13 (2

March 1976).

The McSurelys have obviously employed a counter-of-

fensive technique here. “The action for damages presently

under consideration was originally filed in the District Court

for the District of Columbia on March 4, 1969, the same day

that the McSurelys appeared before the Subcommittee.”

(Majority op. 9) To the extent that members of Congress

and their staff can be embroiled in defending private suits

for damages, arising out of their legislative activities, to the

same extent may the more timid members of Congress be

discouraged in carrying out their duties. The same counter-

offensive technique could likewise be employed against judges,

prosecutors, and other public officials if hitherto established

absolute immunity is allowed to be cut down, as the majority

opinion does here, to only a qualified immunity.

58a

Debate Clause their analysis and ours make clear

that the absolute immunity of the Speech or Debate

clause applies unless there was a violation of the plain-

tiffs’ Fourth Amendment right to be free from “unrea-

sonable searches and seizures.”

After a tangential approach to this basic underlying

issue,” the majority opinion does refer to Brick’s “search-

and-taking” (p.30), the “search and seizure of Brick”

(p.82), and then asserts flatly “two separate, independ-

ent search and seizures took place here” (p.33).

With this holding our colleagues make new law. The

transfer from one investigative agency to another is

not a “separate, independent search and seizure,” and,

as we show later, the rationale of all the Supreme Court

“silver platter” decisions and the recent en banc spe-

cifie holding of the Ninth Circuit in United States v.

Sherwin are directly contrary.

New law it is, but law absolutely necessary to the

majority’s holding that the McSurelys’ Fourth Amend-

ment rights were violated here, for without an “unrea-

sonable search and seizure” by the Senate aide his in-

vestigative activities and related act: by his superiors

are admittedly protected by the Speech or Debate clause.

™ Maj. op. 10.

With perceptible reluctance the majority initially charac-

terizes the actions of Brick as being “a wrongful inspection

and transportation of documents (causing constitutional in-

jury) which were independent of the initial raid by the Ken-

tucky officials” (maj. op. 21-22, emphasis supplied) and, later

states “Brick committed an independent Fourth Amendment

violation by his unauthorized inspection and transportation

back to Washington of the 234 documents.” (maj. op. 22,

emphasis supplied)

F.., Lustig v. United States, 338 U.S. 74, 78-79 (1949).

6539 F.2d 1 (1976).

59a

To see how the Senate investigator’s “Inspection and

Transportation of Documents Held in ‘Safekeeping’ by

Court Order“ could never, on all logie and precedent,

be held an “unreasonable search and seizure” within the

Fourth Amendment, it is important to give a detailed

chronological description of these events, putting in

proper perspective the actions by the Kentucky officials,

the Senate investigators, and the United States courts.

I. SEQUENCE OF ACTIONS BY KENTUCKY OFFICIALS,

SENATE INVESTIGATORS, AND UNITED STATES COURTS

Under authority of a judicial warrant charging sedi-

tious activities against the Commonwealth of Kentucky

in violation of KRS 432.040, on 11 August 1967 officials

of Pike County arrested the McSurelys and seized a large

plaint in the United States Distriet Court for the Eastern

Distriet i

Maj. op. at 17-34.

Civil Action No. 1146. In addition to Thomas B. Ratliff,

» Order of 17 August in No. 1146, signed by Moynahan, J.

60a

On 1 September 1967 a hearing was held before Combs,

Cireuit Judge, and Gordon and Moynahan, District

Judges, sitting as a three-judge District Court in Pike-

ville. Following the hearing an order was issued on

11 September 1967, recording among other events, “Mr.

Kuntsler then moved the Court to direct the Marshal

to impound the material seized by the Pike County

Sheriff and to direct the defendants to safe guard such

materials so seized as may be in their custody and

control.” Pursuant to this request of plaintiffs’ attorney,

the order recited, “The parties having agreed thereto,

it was further ordered by the Court that the material,

literature, and all objects seized herein shall be kept in

the custody of the defendant, Thomas B. Ratliff, and

that same shall be made available to the United States

Marshal for the Eastern District of Kentucky; and that

said United States Marshal and the defendant, Thomas

B. Ratliff, shall forthwith make an inventory thereof

and file same in the record herein.” The court further

ordered that Ratliff should return to the plaintiffs “such

personal articles and property as he does not deem ma-

terial to the investigation and prosecution herein.”

On that same day, 11 September, the grand jury of

Pike County returned an indictment against the Me-

Surelys charging them with seditious activities against

the Commonwealth in violation of KRS 432.040.

However, on 14 September the three-judge U.S. Dis-

trict Court rendered its decision holding KRS 432.040

facially unconstitutional and enjoining state prosecution

of the MesSurelys. In the final paragraph of its order

the three-judge court stated,

„ Pursuant to order of 30 August 1967 issued at Lexing-

ton, Kentucky.

„ The U.S. Court also ordered that all the plaintiffs be

placed under bond to this court in the amount of five thousand

6la

It is further ordered that all books, papers, docu-

ments, and other material now in the custody of the

Commonwealth Attorney of Pike County, Ratliff,

reflected by the Inventory filed in this action con-

tinue to be held by him in safe keeping until final

disposition of this case by appeal or otherwise.”

The wording of this order, which established the nature

of the Commonwealth Attorney’s custody two weeks be-

fore any inquiry was made by the Senate Subcommittee

re the documents, and the wording of the order of 30

October, in response to the McSurelys’ effort to bar Sen-

ate access to the documents, along with the intervening

meeting of Ratliff with Judge Moynahan, are vital to an

understanding of the legitimacy of the actions of both

Ratliff and Brick.

For the first time, according to the record in this and

all other related cases, an employee of the United States

Senate then took action in regard to the McSurelys. On

25 September 1967 Lavern Duffy, Assistant Counsel to

the Permanent Subcommittee on Investigations (Subcom-

mittee) of the Senate Committee on Governmental Opera-

tions (Committee), called Commonwealth Attorney Rat-

liff by telephone from Washington to inquire about the

seized items.“ On Sunday, 8 October John Brick, an in-

dollars ($5,000.00) each on their own recognizance to make

themselves amenable to the further orders of this court.”

* In explanation of their order the judges issued opinions

on 18 and 20 October. 282 F. Supp. 848 (E.D. Ky. 1967).

The language used in the opinion refers to Commonwealth

Attorney Ratliff's custody of the documents, but nowhere is

there implied secrecy or confidentiality or any other object

other than the preservation of the documents for such pur-

poses as may be relevant in the legal proceedings in the federal

and /or Kentucky courts.

1 Irre.

Margaret a cSurely for contempt of Congress before U.S.

District Judge John Lewis Smith, Jr., 24 June 1970 (United

62a

vestigator employed by the Senate Committee and assist-

ant to Duffy, came to Pikeville. After Brick explained to

Ratliff the purpose of the Senate investigation, and con-

firmed that the McSurely material contained information

relating to the activities of a number of organizations in

which the Subcommittee was interested, on the evening

of that same day Thadeus Scott, Commonwealth Detec-

tive, delivered to Brick in his motel photocopies of some

of the seized documents. On the following morning, 9

October 1967, Brick was taken to the Pike County Court

House, where he examined the seized items for about one

hour.“ These were located in the walk-in vault in the

Commonwealth Attorney's office (Ratliff’s office), where

Ratliff had been instructed by the United States District

Court to keep the material. Later that day Brick in-

spected the file of the three-judge court action in the

U. S. Court House. On 12 October Brick returned to the

vault in Ratliff’s office where, again accompanied by

Dotson ‘Assistant Commonwealth Attorney) and Scott,

he examined the seized material for about four hours

and for the first time took notes. He then returned to

Washington, taking with him photocopies of 234 of the

documents.

States v. McSurely, No. 24,812 and 24,813, (D. D. C. 1970),

(D. A. 401 and 402). Rvsd. and Rmnd., 473 F.2d 1178 (D.C.

Cir. 1972). In the Kentucky three-judge court case plaintiffs

stipulated that Duffy had no contact with Ratliff until this

telephone call. Stip. 3, App. 20. In an affidavit attached to

the defendants’ motion for dismissal or summary judgment,

Senator McClellan flatly denied any participation of any sort

in the search and seizure of 11 August by the Kentucky

authorities.

* Stip. 9, App. 20-21.

2 United States v. McSurely, supra, note 21, D A. 403-04.

* Stip. 12, App. 21.

63a

A very important event took place before Common-

wealth Attorney Ratliff permitted even the Senate inves-

tigator access to the documents. Ratliff testified,

Before that was done, however, I made strenuous

efforts to contact one or all of the three judges, and

I couldn’t find Judge Combs. I couldn’t find Judge

Gordon, and | want to say, Sir, with certainty that

I believe that it was at this point that I did talk

with Judge Moynahan. I found him, I think, at his

mother’s .... There was no secret as to what

happened. I was very open about it and it was a

Senate investigator and he identified himself with

the credentials and he took none of the material.

None of the material was taken other than the

copies that he used.

As to what happened when he talked with Judge Moyna-

han, Ratliff further testified,

Q. Did you permit your assistants to permit Mr.

Brick of the McClellan committee to examine and

photograph this material after you had represented

to the Court that you would keep it inviolate as the

custodian with the United States Marshal?

A. The answer is that I assume that he did see

the material, Mr. Combs. I was not present. / had

my permission and I gave members of my staff per-

mission to do that on the condition that none of it

be removed.“

ö 0 Did you not contact your custodian, the U.S.

Marshal, to see if he would agree that Mr. Brick may

examine and photograph the material?

A. No, Sir, I contacted the federal bench.”

*8 United States v. McSurely, D.A. 406.

Id., D.A. 407 (emphasis added).

Id., D.A. 408 (emphasis added). The testimony about this

conversation has, as noted, been taken from the court record

in another proceeding. Our conclusion about the nature of the

custody orders in this case does not rest solely on this testi-

64a

On 16 October, at the direction of Senator McClellan,

Chairman of the Subcommittee, Brick prepared sub-

poenas for the original McSurely documents still in Rat-

liff’s possession which the Senator had determined would

be of value to the Subcommittee’s investigation. On the

following day, Brick was in Kentucky and informed

Judge Moynahan by telephone of the subpoenas prior

to service on Ratliff, Kraft, (the U.S. Marshal) and the

MesSurelys.“ On 18 October plaintiffs filed motions with

the three-judge U.S. District Court seeking orders block-

ing Ratliff from releasing the seized material to the Sub-

committee and directing him to return those materials to

the McSurelys.

The action of the three-judge U.S. Distriet Court on

this effort of the McSurelys to obtain the release of their

documents and to bar Subcommittee access to them was

unequivocal. On 30 October 1967 the court issued an

order, the complete text of which is:

The motion of the plaintiffs, Alan McSurely, Mar-

garet McSurely, and Joseph Mulloy, that the ma-

terials now in the custody of the Commonwealth At-

torney of Pike County be returned to them at this

time is overruled.

The motion of plaintiffs for a restraining order

enjoining defendants from releasing such of the

materials as are desired by a Committee of the

United States Senate is overruled.

The parties to this action and the officers of this

Court are directed to cooperate with the Senate Com-

mittee in making available such of the materials, or

mony, however, but is based instead on the uncontroverted

facts of this case, e.g., the language of the order of 30 Oc-

tober 1967. We have quoted from this testimony only as a fur-

ther, cumulative demonstration that the three-judge court

never meant its custody order to be a secrecy order.

** Stip. 13, App. 21.

65a

copies thereof, as the Committee considers pertinent

to its inquiry; but until time for appeal is expired,

this will be done in such manner as to keep intact

those materials that may be pertinent to the appeal

of this case. (emphasis added).

On 1 November the court denied plaintiffs’ motion for

rehearing and reconsideration of the 30 October order,

but granted a twenty-four hour stay in order that plain-

tiffs could apply to the Supreme Court for review of the

District Court’s order. Pending this Supreme Court re-

view the District Court further ordered “that the mate-

rial in question shall not be removed from the custody

of the Commonwealth Attorney of Pike County, Ken-

tucky, and copies thereof shall not be made on or before

2:00 p.m. Eastern Standard Time, November 2, 1967.”

The history of that Supreme Court application is

referred to in the final order of the U.S. District Court

of 13 December 1967, which recites,

On November 10, 1967, Mr. Justice Stewart. for

the Supreme Court, granted an emergency relief to

the extent that the documents in issue remain in their

then custody until this Three-Judge Court might hear

and rule upon the factual] and legal objections of the

plaintiffs to the validity of a subpoena duces tecum

of the Senate Committee.

Whereupon, on December 5, 1967, this matter came

on for hearing on said objections before this Three-

Judge Court. IT IS HEREBY ORDERED that

the objections of the plaintiffs to the subpoena duces

tecum of the Senate mittee be and the same are

hereby overruled, AND IT IS FURTHER ORDERED

that the defendant Ratliff. Commonwealth's Attor-

ney, Pike County, Kentucky, be and he is hereby

ordered and directed, subject to the hereinafter stay

provisions of this order, to comply with the subpoena

* See 389 U.S. 949 (1967).

66a

duces tecum of the Senate Committee by allowing

said Committee representatives to photograph copies

of any of the desired books, papers, documents and

other materials now in his possession under order of

this Court. emphasis added).

A stay of five days before Ratliff should comply with the

Senate subpoena duces tecum was granted to allow plain-

tiffs to apply to the Supreme Court again.

Justice Stewart, stayed the order of the three-judge court

“to the extent that the seized documents shall remain in

custody,” but conditioned the stay upon the filing of

an appeal to the Supreme Court. (The order being ap-

pealed was the order of 30 October, not the

September). The McSurleys thereafter submitted their

jurisdictional statement and the Solicitor General re-

sponded. On 18 March 1968 the entire Court declined

to hear the case, and dismissed the appeal with a per

curiam order." The stay was continued, however, for

another thirty days so that the McSurelys could apply

to the Sixth Circuit for a stay.

By the time their appeal to the Sixth Circuit was

taken, the question of custody of the documents was in

a different posture, as time for appeal from a three-

judge court order of 14 September) to the Supreme

Court had expired, a distinction the Sixth Circuit was

careful to make. All of the actions of the three-j

court after the order of 11 September through that

13 December 1967 had been taken before time for

peal, first by Kentucky and then by the MesSurelys.

the Supreme Court had expired.“ The Sixth Cireui

* 390 U.S. 914 (1968).

„* 390 U.S. 412 (1968).

„After the decision of the [three-judge] District Court

and before the time for appeal had erpired, subpoenas duces

33 24

67a

was now acting in a different setting. “The single issue

now before this court is whether the District Court erred

in refusing to return to their owners documents which

were seized in aid of a prosecution under an unconstitu-

tional statute, now that the time for appeal has expired.

. « The right of the court to retain possession of the

seized documents, which inc

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