# Petition — National Committee v. Morgenthau > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1065%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 466 U.S. 904 ## Text 8 3 — 1 1 2 4 es i Ry; US JAN 9 1984 | [ae ALEXANDER L. STEVAS, Set Kk IN THE Supreme Court of the United States OCTOBER TERM, 1983 NATIONAL COMMITTEE and NATIONAL EXECUTIVE COMMITTEE OF THE NATIONAL CAUCUS OF LABOR COMMITTEES, Petitioners, vs ROBERT MORGENTHAU, DISTRICT ATTORNEY OF NEW YORK County and HAROLD WILSON, ASSISTANT DISTRICT ATTORNEY OF NEW YORK COUNTY, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT MAYER MORGANROTH 24901 Northwestern Highway Southfield, Michigan 48075 ODIN P. ANDERSON One Longfellow Place Boston, Massachusetts 02114 Attorneys for Petitioners QUESTIONS PRESENTED 1. Whether a federal court can dismiss a civil rights complaint sua sponte and without adequate notice, when the complaint seeks injunctive and declaratory relief against a state grand jury investigation and contains non-conclusory allegations that the investigation is being conducted by the District Attorney in bad faith and to retaliate against a political organization for exercising its constitutional rights. 2. Whether a federal judge can refuse to recuse himself on a motion for recusal by a party before him which had published vitriolic attacks on his competency and integrity prior to his appointment to the Court. TABLE OF CONTENTS PAGE acc cusdsncescsncncapnescsvesceesees i NEE ee Nc ccc ccicesceccescceceses: i eel es icasactacnssncsnncsesorace ] nus i dsccedncccascnccescocsseescccescess 2 Constitutional, Statutory and Rules Provisions ache cneccdccnesncsacccesses 2 ES EE 2-5 Reasons for Granting the Writ: I. The Court of Appeals Erred In Upholding The District Court's Sua Sponte Dismissal Of A Civil Rights Complaint Which Sought An Injunction and Declaratory Relief Against A State Grand Jury Investigation And Which Contained Non-Conclusory Allegations That The Investigation Was Being Conducted By The District Attorney In Bad Faith And To Retaliate Against Petitioners For Exercising Their Constitutional Rights. ...................... 5-17 A. The District Court erred in dismissing the Complaint sua sponte without giving petitioners adequate notice of the contemplated action and without affording them an opportunity to respond. ........... 6-7 B. The allegations of the Complaint were sufficient to state a claim for relief on the ground that the state grand jury investigation was being conducted in bad faith and to retaliate against and to deter petitioners in the exercise of their Constitutional rights. ......................... 7-9 C. The Court of Appeals acted contrary to accepted principles of law and applicable decisions of this Court in holding that petitioners would not be entitled to injunctive relief under any set of facts which they could prove in support of the allegations of the Complaint. ................ 10-17 PAGE Il. Judge Pratt Erred In Refusing To Recuse Himself On The Ground That His Impartiality Might Reasonably Be Questioned Because Of Vitriolic Attacks On His Competency And Integrity By Petitioners Prior To His Appointment To The Court Of Appeals .... 17-20 Conclusion iv TABLE OF AUTHORITIES PAGE Cases: Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) .... s American Construction Co. v. Jacksonville, T. & K. Ry. Co., 148 U.S. 372 (1893)..........cccecceeeeeeeee. 20 Anderson National Bank v. Luckett, 321 U.S. 233 SD SR re hs ee a en, Pee 6 Armstrong v. Rushing, 352 F.2d 836 (9th Cir. a ate nae g th alanehuatGasdedualatencieschsduaane 7 Bell v. Hood, 327 U.S. 678 (1946)....................05. 6 Blizzard v. Frechette, 601 F.2d 1217 (1st Cir. 1979).. 19 California Dive: sified Promotions, Inc. v. Musick, Fx be [Lo ae! es 6,7 Conley v. Gibson, 355 U.S. 41 (1957)...............605. Ss Conrad v. Delta Air Lines, Inc., 494 F.2d 914 (7th Ne Bee i) Cross v. United States, 336 F.2d 431 (2nd Cir. Midi nctuvidnsalesdkn ins dos dedtabinmacaawtatcksuscehen ) Dodd v. Spokane County, 393 F.2d 330 (9th Cir. Bs wetnina or inaruats ddl dacbdedcwerdacaesunk oun uawcwes 7 Ealy v. Littlejohn, 569 F.2d 219 (5th Cir. 1978)....... 11-13,16 Fitzgerald v. Peek, 636 F.2d 943 (5th Cir. 1981), cert. denied, 452 U.S. 916 (1981)..................... 10,11 Huffman v. Pursue, Ltd., 420 U.S. 592 (1975)......... 13 In Re Grand Jury (Schmidt), 619 F.2d 1022 (3rd Cir. ates Uhae rt a okisuhs oil madhanadaathesiond cubs 15,16 In Re Murchison, 349 U.S. 133 (1955).................. 19-20 Jenkins v. McKeithen, 395 U.S. 411 (1969)............. i) Juidice v. Vail, 430 U.S. 327 (1977) ............c. cece 14,15 PAGE Kaylor v. Fields, 661 F.2d 1177 (Sth Cir. 1981) ....... 15 Lewis v. State of New York, 547 F.2d 4 (2nd Cir. Ry at ee OC ac. <,, h Literature, Inc. v. Quinn, 482 F.2d 372 (lst Cir. 1973) a aU eenaSiaebadn nk dans aed ee bSen week coetutsrastenwe 6.7 Moran cv. Dillingham, 174 U.S. 153 (1899)............. 20 Pilla v. American Bar Association, 542 F.2d 56 (Sth SR IRICEN ERR Si Rinne ae Lie ea OD 20 Potashnick v. Port City Construction Co. , 609 F.2d 1101 (5th Cir. 1980), cert. denied, 449 U.S. 820 Rae gee SA I ee ane ap Se aN eS 18-19, 20 Roberts v. Bailar, 625 F.2d 125 (6th Cir. 1980) ....... 20 Shaw v. Garrison, 467 F.2d 113 (5th Cir. 1972). cert. denied, 409 U.S. 1024 (1972).................... 10,11 Spires v. Hearst Corp., 420 F Supp. 304 (C.D. Cal. RAPE SEE OP Rie Pe ROE tas OO yn Pal EL 19 United States v. Calandra, 414 U.S. 338 (1974)....... 15 United States v. Camden, 545 F.2d 257 (1st Cir. 1976), cert. denied, 430 U.S. 909 (1977) ............. 19 United States v. Gigax, 605 F.2d 507 (10th Cir. ER = Ab aL a A ee ST Sn ge a SO 18 United States v. M.H. Bronson Distributing Co., 398 ITED: TED 6 ines euccbocecacesecdeccessuses y Wilson v. Thompson, 593 F.2d 1375 (5th Cir. 1979) .. 8,11, 13-14 Younger v. Harris, 401 U.S. 37 (1971). .................. 10,13,14,16 Constitutional Provisions, Statutes and Rules: United States Constitution, Amendment 1............. 5 United States Constitution, Amendment 4............. 5 United States Constitution, Amendment 5............. 5 Vi PAGE United States Constitution, Amendment 9............ 5 United States Constitution, Amendment 14........... 5 RS ER el aa Se Pe ee 4,17,18,20 28 U.S.C. $1331, 1343 (1)-(3), 2201, 2202............. 4 RS SR) ER ineaean 5 EG MC, MD Glas. oc ec cnsaceawaccuackcthswesccecs 6 2nd Cir. R. §0.14..... Pe eee ees. | Fae aE er ae 5 20 IN THE Supreme Court of the Gnited States OCTOBER TERM, 19583 NATIONAL COMMITTEE and NATIONAL EXECUTIVE COMMITTEE OF THE NATIONAL CAUCUS OF LABOR COMMITTEES, Petitioners, VS. ROBERT MORGENTHAU, DISTRICT ATTORNEY OF NEW YORK CouNTy and HAROLD WILSON, ASSISTANT DISTRICT ATTORNEY OF NEW YORK COUNTY, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT OPINIONS BELOW In an Order dated April 13, 1983, the Honorable Vincent L. Broderick, District Judge in the United States District Court for the Southern District of New York, denied petitioners’ motions for a temporary restraining order and a preliminary injunction and dismissed petitioners’ Complaint for reasons stated on the record at oral argument. By Order dated October 3, 1983, the Honorable George C. Pratt, Circuit Judge, denied petitioners’ motion for recusal for reasons stated on the record at oral argument. The Order of the District Court was affirmed by the United States Court of Appeals for the Second Circuit by Order dated October 11, 1983. No formal opinion was issued by the Court of Appeals. 2 JURISDICTION The judgment of the Court of Appeals was entered on Octo- ber 11, 1983. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1254(1). CONSTITUTIONAL, STATUTORY AND RULES PROVISIONS INVOLVED 1. United States Constitution, Amendment | (reproduced in Appendix). to United States Constitution, Amendment 4 (reproduced in Appendix). 3. United States Constitution, Amendment 5 (reproduced in Appendix). 4. United States Constitution, Amendment 9 (reproduced in Appendix). 5. United States Constitution, Amendment 14 (reproduced in Appendix). 6. 28 U.S.C. § 455 (reproduced in Appendix). 7. 28 U.S.C. § 1331, 1343 (1)-(3), 2201, 2202 (reproduced in Appendix). 8. 42 U.S.C. § 1983 (reproduced in Appendix). 9. 2nd Cir. R. § 0.14 (reproduced in Appendix). STATEMENT OF THE CASE The petitioners, National Committee and National Executive Committee of the National Caucus of Labor Committees (“NCLC’), filed a Civil Rights Complaint accompanied by sup- 3 porting affidavits, a Motion for Preliminary Injunction, and a Memorandum of Law in Support of Motion for a Preliminary Injunction in the United States District Court for the Southern District of New York on March 25, 1953.' The Complaint sought a permanent injunction against a New York County Grand Jury investigation of the printing and distri- bution of a pamphlet, “Profiles of the Times”, as the investiga- tion concerned petitioners. The complaint also sought a per- manent injunction against other specified bad faith investiga- tions conducted by the defendant New York County District Attorney in conjunction with private individuals and organiza- tions and other law enforcement authorities against the NCLC political organization and its members. In addition, the Com- plaint sought a declaratory judgment that the specified law enforcement investigations were conducted in bad faith under color of state law and violated the constitutional rights of the NCLC and its members. (A 18-43). The Motion for Preliminary Injunction sought to enjoin the enforcement of New York County Grand Jury subpoenas issued to NCLC members and employees of PMR Printing Company (“PMR”) on November 16, 1982 and subsequently, to stay the return date of these subpoenas during the pendency of the federal action, and to likewise enjoin the issuance and enforce- ment of any new subpoenas to members of the NCLC. On March 30, 1983, Petitioners requested, by Order to Show Cause, a hearing for a Temporary Restraining Order against enforcement of the subpoenas at issue. This application was in response to the New York County District Attorney's notifica- tion that he intended to call employees of PMR subpoenaed on November ]6, 1982 before the Grand Jury on April 4, 1983. The hearing on this request was originally scheduled for April 4, 1983, but was rescheduled by the Court to April 8th, with ‘ The Complaint and some of the supporting affidavits are reproduced in the Appendix. The other documents are part of the Record below Petitioners have requested the Court of Appeals to certify and transmit the Record to thas Court. 4 the District Attorney rescheduling the appearance of the Grand Jury witnesses until after the hearing. Oral argument was held before the Honorable Vincent L. Broderick on April 8, 1983, on petitioners’ application for a temporary restraining order. After hearing arguments of coun- sel, Judge Broderick denied the request for a temporary re- straining order. (Al2-17) In addition, the Judge denied a preliminary injunction and dismissed petitioners’ Complaint for failure to state a cause of action. (Al2-17) Petitioners took an appeal of this decision to the Second Circuit Court of Appeals. Prior to oral argument on petitioners’ appeal to the Court of Appeals, petitioners moved for the Honorable George C. Pratt, Circuit Judge, to disqualify himself, pursuant to 28 U.S.C. Section 455, from the panel hearing the appeal. (A85-92) This motion was based on the fact that the petitioners had previously published numerous articles which were sharply critical of Judge Pratt and which questioned his integrity. Petitioners had cam- paigned and lobbied nationally for Judge Pratt's impeachment and to block his appointment to the Court of Appeals. After hearing argument, Judge Pratt refused to disqualify himself, and participated in the decision of the Court of Appeals. (A7-10) That decision affirmed the dismissal of petitioners’ Complaint in a summary order. (Al-6) Petitioners Complaint resulted from a search conducted pur- suant to a warrant about the premises of PMR, a printing com- pany owned and managed by members of the NCLC, on November 16, 1982 by seventeen (17) individuals identifying themselves as detectives from the New York City Police De- partment. At the time of the search, twenty-three (23) individ- uals, constituting the entire day shift and management of PMR, and Barbara Boyd, a member of the legal staff of the NCLC, were subpoenaed to appear before the New York County Grand Jury investigating the printing and distribution of “Profiles of the Times”. All subpoenas were made returnable at the same time and on the same day. Jurisdiction for petitioners’ Complaint in Federal District Court was based on 28 U.S.C. Sections 1331, 1343(1)-(3), 2201, and 2202. 2 Petitioners Complaint alleges that the NCLC and its mem- bers are the targets of the New York County Grand Jury inves- tigation concerning the printing and distribution of “Profiles of the Times”.? It is alleged that the Grand Jury proceedings and other specified law enforcement actions have been brought in bad faith and for purposes of harassment, and to retaliate for and. to deter the petitioners and their members from exercising various specified rights, including freedom of speech, press, and assembly, which are protected by the United States Constitu- tion. The Grand Jury proceedings and other contemporaneous law enforcement investigations specified in the complaint are alleged to contravene, under color of state law, rights guaran- teed the petitioners and their members under the First, Fourth, Fifth, Ninth and Fourteenth Amendments to the Constitution. The Complaint alleges that petitioners will suffer irreparable harm as a result of defendants’ unlawful and unconstitutional actions. REASONS FOR GRANTING THE WRIT THE COURT OF APPEALS ERRED IN UPHOLD- ING THE DISTRICT COURT'S SUA SPONTE DIS- MISSAL OF A CIVIL RIGHTS COMPLAINT WHICH SOUGHT AN INJUNCTION AND DE- CLARATORY RELIEF AGAINST A STATE GRAND JURY INVESTIGATION AND WHICH CONTAINED NON-CONCLUSORY ALLEGA- TIONS THAT THE INVESTIGATION WAS BEING CONDUCTED BY THE DISTRICT ATTORNEY IN BAD FAITH AND TO RETALIATE AGAINST PETITIONERS FOR EXERCISING THEIR CON- STITUTIONAL RIGHTS. * “Profiles of the Times” is a parody pamphlet resembling, in some respects, the book review section of the Sunday New York Times 6 A. The District Court Erred in Dismissing The Complaint Sua Sponte Without Giving Petitioners Adequate Notice Of The Contemplated Action and Without Affording Them An Opportunity To Respond. The Second Circuit's opinion failed to discuss the petitioners’ argument that the District Court committed procedural error in dismissing their Complaint. The hearing before Judge Broderick was concerned with petitioners application for interim relief, and the only papers filed by the defendants were an affidavit and memorandum of law in opposition to petitioners’ motion for a temporary restraining order. Defendants never filed a Rule 12(b)(6) motion to dismiss, and the District Court Judge did not inform petitioners that dismissal of the Complaint was a possi- bility until after oral argument, when he denied preliminary relief and dismissed the Complaint for failure to state a cause of action. The Courts of Appeals have often been*critical of sua sponte dismissals of complaints, and have scrutinized such dismissals carefully. See, e.g., Lewis v. State of New York, 547 F.2d 4, 5-6 (2nd Cir. 1976); California Diversified Promotions, Inc. v. Mu- sick, 505 F.2d 278, 280-281 (9th Cir. 1974); Literature, Inc. v. Quinn, 482 F.2d 372, 374 (1st Cir. 1973). As the court stated in Lewis v. State of New York, supra, when a motion to dismiss for failure to state a claim is filed by the defendant pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the plain- tiff receives notice of the challenge to the sufficiency of the Complaint, and has an opportunity to respond by seeking leave to amend or setting forth arguments supporting the validity of his claim. Lewis, supra at 5. This Court has noted the funda- mental importance of adequate notice and an opportunity to be heard, Anderson National Bank v. Luckett, 321 U.S. 233, 246 (1944), and has cautioned against the premature dismissal of a complaint. Bell v. Hood, 327 U.S. 678, 681-683 (1946). In the instant case, petitioners did not receive adequate no- tice that dismissal of the Complaint was contemplated, and had no opportunity to submit written argument in opposition to the proposed dismissal.’ See Dodd v. Spokane County, 393 F.2d 330, 334 (9th Cir. 1965). Indeed, it has been held that such a sua sponte dismissal without adequate notice of the proposed action and an opportunity to address the issue may alone justify reversal. Literature, Inc. v. Quinn, 482 F.2d at 374. See also Armstrong v. Rushing, 352 F.2d 836, 837 (9th Cir. 1965). The Court of Appeals should have closely scrutinized the District Court's action and the procedure it followed to deter- mine if its dismissal of the Complaint was justified under all the circumstances. California Diversified Promotions, Inc. v. Mu- sick, 505 F.2d at 280. Instead, the Second Circuit affirmed the dismissal in a brief summary order which did not consider the propriety of the procedure followed by the District Court. While the opinion of the Court of Appeals stated that a sua sponte dismissal should be scrutinized with the utmost care, (A-3) the brevity of the opinion indicates that the Court failed to give the issues the scrutiny they required. B. The Allegations Of The Complaint Were Sufficient To State A Claim For Relief On The Ground That The State Grand Jury Investigation Was Being Conducted In Bad Faith And To Retaliate Against And To Deter Petitioners In The Exercise Of Their Constitutional Rights. In upholding the dismissal of petitioners’ Complaint for fail- ure to state a claim, the Court of Appeals stated that there was no basis for suggesting that the petitioners were the targets of the grand jury investigation, and that their allegations as to bad faith and harassment were stated in “mere conclusory terms, without any factual support.” (A-3). An examination of the Com- plaint, however, clearly demonstrates that the petitioners’ alle- gations were sufficient to state a claim under established legal principles, and that the Court of Appeals was incorrect in ruling to the contrary. This Court has stated that when the sufficiency of a complaint is at issue: * The memoranda filed by the petitioners in District Court dealt with the applications for a temporary restraining order and a preliminary injunction. the accepted rule [is| that a complaint should not be dismissed for failure to state a claim unless it appears bevond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957) In a civil rights case under 42 U.S.C. Section 1983, the plaintiff must allege and prove that the defendant has deprived him of a federal right, and that in doing so the defendant was acting “under color of law.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970). Petitioners Complaint clearly meets t'iese requirements. The Complaint alleges that the grand jury proceedings and other law enforcement investigations have been undertaken in bad faith by the defendants in retaliation for and to deter petitioners and their members from exercising certain specified constitutional rights, including freedom of speech, press, and assembly. This abridges petitioners federal right to pursue their constitutional rights free from state interference or retaliation. Wilson v. Thompson, 593 F.2d 1375, 1385 (5th Cir. 1979). The defendants are the District Attorney and an Assistant District Attorney, respectively, of New York County, and their actions are suffi- ciently alleged to be under color of law. This Court stated in Conley v. Gibson, 355 U.S. at 47: “the Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim.” In fact, petitioners Complaint goes beyond the minimum require- ments of the federal rules, and does state with a great deal of specificity the facts underlying petitioners’ claim that they are the targets of an investigation brought in bad faith and for purposes of harassment. The Complaint specifies reports of confidential sources to Jeffrey Steinberg, a member of the NCLC. These reports to Steinberg which are detailed in the Complaint support the conclusion that the NCLC is the target of the grand jury inves- y tigation, that the proceedings were undertaken not for the pur- poses of obtaining valid convictions but solely for specified improper purposes directed against petitioners, and that the grand jury process is being utilized for purposes of generating information for civil lawsuits and other governmental investiga- tions pursuant to a general plan of financially bleeding the NCLC. In addition to these allegations, the Complaint sets forth additional facts which support petitioners’ claims. These facts include prior dealings between the parties demonstrating ani- mosity on the part of the defendants toward petitioners, hostile dealings between the petitioners and organizations and persons associated with defendant Morgenthau, the dubious nature of the alleged criminal violations, simultaneous investigative ac- tions by state and federal authorities, and the fact that the search and the subpoenas were directed at the printer for a political organization which sustains itself by publishing and dissemi- nating its views. In considering a motion to dismiss, the allegations of the Complaint must be taken as true, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). It is not up to the Court of Appeals at this stage to disbelieve the allegations and find that the petitioners are not targets. As to the allegations of bad faith, petitioners cannot be required to plead with any more specificity than they have done. Bad faith is a state of mind, and as such is rarely susceptible of direct proof, but must generally be proved by circumstantial evidence. United States v. M.H. Bronson Dis- tributing Co., 398 F.2d 929, 943 (6th Cir. 1968). A plaintiff alleging bad faith on the part of a defendant should not be held to stringent standards at the pleading stage before any discovery is had, since the facts evidencing such bad faith will often be in the possession of the opponent. Cases—such as the instant one—in which a crucial issue involves motivation or intent are particularly inappropriate for summary disposition. See Conrad v. Delta Air Lines, Inc. , 494 F.2d 914, 918 (7th Cir. 1974); Cross v. United States, 336 F.2d 431, 433 (2nd Cir. 1964). C. The Court Of Appeals Acted Contrary To Accepted Principles Of Law And Applicable Decisions Of This Court In Holding That Petitioners Would Not Be Entitled To Injunctive Relief Under Any Set Of Facts Which They Could Prove In Support Of The Allegations Of The Complaint. As a basis for upholding the District Court's ruling, the Court of Appeals stated that the petitioners had made only conclusory allegations of irreparable harm, and that there was no factual basis for those allegations. (A-3). However, such a statement is unsupportable in light of the allegations of the Complaint and the relevant case law In Younger v. Harris, 401 U.S. 37 (1971), this Court dis- cussed the concept of irreparable injury in the context of federal intervention in state criminal proceedings. Younger held that, absent extraordinary circumstances, bad faith or harassment in a state prosecution was a necessary prerequisite to the irrepara- ble injury which must be shown in order to justify federal intervention in the state proceedings. 401 U.S. at 53-54. Certain types of injury, in particular, the cost, anxi- ety, and inconvenience of having to defend against a single criminal prosecution, could not by themselves be considered ‘irreparable’ in the special legal sense of that term. Younger, supra, at 46. The threat to a plaintiff's rights must be of the type that can not be eliminated by his defense against a single criminal pros- ecution. In the instant case, petitioners allege in their Complaint that the New York Grand Jury investigation was instigated in bad faith to harass the petitioners because of their exercise of their constitutional rights, and to deter them in the exercise of those rights. It has been held that a showing of bad faith or harassment is equivalent to a showing of irreparable injury under Younger v. Harris. Fitzgerald v. Peek, 636 F.2d 943, 944 (5th Cir. 1981), cert. denied, 452 U.S. 916 (1981); Shaw v. Garrison, 467 F.2d 113, 120 (5th Cir. 1972), cert. denied, 409 U.S. 1024 (1972). Irreparable injury independent of the bad faith prosecution need not be established. Fitzgerald v. Peek, supra at 944. The court in Shaw noted that there is a federal right to be free from bad faith prosecutions. Shaw v. Garrison, supra at 120. In addition to their right to be free from bad faith prosecu- tions, petitioners have a federal right to pursue their constitu- tional rights free from state interference or retaliation. Wilson v. Thompson, 593 F.2d 1375, 1385 (5th Cir. 1979). Petitioners allege in their Complaint that the motivating force behind the grand jury investigation is defendants desire to retaliate and deter petitioners in the exercise of their First Amendment rights. The grand jury investigation is alleged to be part ofa bad faith investigative plan by defendants. The plan involves the grand jury investigation of “Profiles of the Times” and contemporaneous law enforcement investigations and a de- famatory publicity campaign based upon the law enforcement investigations. The bad faith law enforcement and_ publicity campaign will “financially bleed” and discredit the political or- ganization, disrupt and sever relationships between the NCLC and law enforcement, intelligence and government news sources, disrupt the political organization's printing operation, “PMR”, and destroy the social fabric of the NCLC by unlawful intimi- dation of individual members of the NCLC. The threat to petitioners’ federally protected rights cannot be eliminated, therefore, by their defense against a single criminal prosecution. The threatened injury to the NCLC is not depen- dent upon the outcome of any prosecution which might result from the grand jury proceedings. In fact, the injury does not even depend on the procurement of indictments against the petitioners or any member of their political organization. Ealy v. Littlejohn, 569 F.2d 219 (5th Cir. 1978), demonstrates how a party can be threatened with irreparable harm by a grand jury which does not result in or was not ever intended to result in prosecution of the party. Ealy involved grand jury investigation of the fatal shooting of a black youth by law enforcement officers in Mississippi. When 12 the grand jury failed to return indictments, members of the Marshall County United League circulated a leaflet attacking the local law enforcement investigation and accusing the District Attorney of improperly prosecuting the case before the grand jury. The grand jury was called back into session and grand jury subpoenas were issued to officers and members of the United League and for records and minutes of the League. The grand jury conducted an investigation into the origin of the leaflet in order to ascertain whether those responsible had personal knowledge of the facts of the shooting and it questioned League members about internal organizational affairs, financial affairs and the League's activities. The Ealy grand jury recommended in its final report that transcripts of the proceeding be released to the news media, the general public and specified law enforce- ment agencies. The League then filed a Civil Rights action against the Dis- trict Attorney, the County Attorney, and a judge, alleging that the grand jury inquiry into the League's activities was con- ducted in bad faith for purposes of harassing and intimidating the plaintiffs in violation of their First Amendment rights. An injunction was requested restraining defendants from interfer- ing in the exercise of those rights, and from taking further action based on the grand jury investigation. In reviewing the District Court's denial of relief, the Fifth Circuit initially noted that plaintiffs had a fundamental right to speak their minds free of unwanted governmental restraint. Ealy, supra, at 226. While the investigative powers of a grand jury are broad, the “First Amendment can serve as a limitation on the power of the grand jury to interfere with a witness’ freedoms of association and expression.” Id. at 227. The Court held that plaintiffs had suffered irreparable injury and would suffer further irreparable injury if an injunction did not issue, aud reversed the District Court's decision denying relief. Id. at 235. The instant situation parallels Ealy in several respects. Peti- tioners allege that, as in Ealy, the motivating force behind the decision to convene the grand jury was to harass the petitioners 13 in the exercise of ‘heir constitutional rights, including the rights of speech and association. In both cases, the plaintiffs are polit- ical organizations that incurred the animosity of the defendant _law enforcement officials because of the exercise of their consti- tutional rights. Regardless of the outcome of the grand jury proceedings, petitioners will be irreparably harmed by the on- going investigation, much as the plaintiffs in Ealy were harmed, unless an injunction is granted. By focusing on the argument that the petitioners have not been sufficiently threatened with prosecution, the Court of Appeals and the District Court ig- nored the real basis for petitioners’ claim of irreparable injury. In holding that the petitioners failed to sufficiently allege irreparable harm, the Second Circuit opinion fails to come to grips with the basic principles underlying Younger v. Harris and its progeny. The essential holding of Younger is that equi- table principles do not permit a federal court to interfere with a state prosecution instituted in good faith, even if the statute which is being enforced is alleged to be unconstitutional. Younger v. Harris, 401 U.S. at 755. However, this basic premise of Younger has no application when the state proceeding is instituted in bad faith. See Huff- man v. Pursue, Ltd., 420 U.S. 592, 611 (1975). As the Fifth Circuit stated in Wilson v. Thompson, 593 F.2d at 1382, a suit to enjoin a good faith prosecution differs from a suit to enjoin a bad faith prosecution in that the plaintiff's federal right not to be subjected to a bad faith prosecution, or a prosecution brought for harassment purposes, cannot be vindicated by undergoing the prosecution. While Younger principles require that a person being prosecuted in good faith undergo the state prosecution and attempt to vindicate his federal rights in the state proceed- ing, such principles do not apply when the prosecution itself effects the constitutional violation. Wilson supra, at 1383. In the present case, the very actions of the defendants in conducting the grand jury investigation,—as opposed to any indictments or convictions which might result,—constitutes the constitutional harm. As Wilson held, “irreparable injury is suffi- ciently established if the federal plaintiff demonstrates that the l4 state prosecution against him was brought in bad faith for the purpose of retaliating for or deterring the exercise of constitu- tionally protected rights.” Wilson v. Thompson, 593 F.2d at 1383. While there is no prosecution in the instant case, logic dictates that the same principle should apply when a grand jury investigation is instituted in bad faith in order to retaliate for and deter the exercise of a party's constitutional rights. Unlike the situation presented in Younger, petitioners con- stitutional rights can not adequately be protected in the state proceeding. In the Younger situation, where the unconstitution- ality of a state statute is alleged, the defendant can raise that constitutional issue in the state proceeding and thereby attempt to vindicate his federal rights. Thus, the defendant suffers no irreparable harm by being required to undergo a single prose- cution brought in good faith. However, in the instant case the petitioners are unable to adequately protect and vindicate their federal rights in the same manner. Since the injury will result from the very existence of the grand jury investigation and the manner in which the investigation is being pursued by the defendants, the petitioners’ rights will not be adequately pro- tected by defending against any subsequent prosecution that arises out of the investigation. Since petitioners thus have no adequate opportunity to protect their federal rights in the state proceeding, they will be irreparably injured unless the federal courts intervene at this stage. The notion of an adequate opportunity to present one’s fed- eral claims in the state proceeding is a basic premise of the Younger doctrine, Juidice v. Vail, 430 U.S. 327, 337 (1977), and is inextricably intertwined with the question of irreparable harm in the present case. If a party is accorded an adequate opportu- nity to pursue constitutional claims in the ongoing state pro- ceeding, then a federal court, applying equitable principles, will not interfere in the proceeding. However, where the state pro- cedure is inadequate to protect the party's constitutional rights, such as in the instant case, irreparable harm may occur if the federal courts do not intervene in the state proceedings by way of injunction. In such a situation, consistent with Younger prin- 15 ciples, a federal court of equity may have a duty to act. See Juidice v. Vail, supra at 339 (Stevens, J. concurring). Petitioners have no adequate remedy which they can pursue in the state proceedings. As discussed above, the nature of the threatened injury precludes petitioners from protecting their rights by waiting to be indicted and pursuing relief thereafter. Contrast, Kaylor v. Fields, 661 F.2d 1177, 1181 (Sth Cir. 1981) (Plaintiff claimed that prosecutor disseminated accusations to press in attempt to deprive him of the right to an impartial jury panel in the event of prosecution. The Court held that if plaintiff was charged, he had ample means, including voir dire and a change of venue, to vindicate this right in state court). Unless the defendants intend, ultimately, to indict the entire NCLC political association for the printing and distribution of “Profiles of the Times”, petitioners will have no forum other than the instant lawsuit to pursue their claims. The inadequacy of petitioners’ state remedies is further dem- onstrated by what has already occurred in the New York state courts. As alleged in the Complaint, petitioners moved to inter- vene in state court and quash the grand jury subpoenas issued to members of the NCLC. However, the New York courts ruled that the political organization petitioners lacked standing to intervene or to quash the subpoenas. As a result, petitioners are unable to adequately raise in state court the issues of bad faith and harassment of the political organization which form the basis of the constitutional violation. Nor can the petitioners’ claims be adequately protected by the individuals who have been subpoenaed to testify before the grand jury. As this Court recognized in United States v. Calan- dra, 414 U.S. 338, 343-345 (1974), the scope of a grand jury's powers is far ranging, and a witness subpoenaed to testify before a grand jury is afforded few protections. In In Re Grand Jury (Schmidt), 619 F.2d 1022, 1026 (3rd Cir. 1980), the Third Cir- cuit recognized that in certain circumstances, claims of grand jury abuse may properly be brought by third parties who have not themselves been subjected to grand jury process, since otherwise their rights can not be adequately protected. In the 16 present case petitioners rights cannot be adequately protected. Petitioners were not permitted to intervene into the state court proceedings. The individuals subpoenaed cannot adequately protect the constitutional rights of the petitioners. Petitioners have clearly alleged sufficient facts to show that state remedies are inadequate and that they will suffer irreparable harm if the grand jury investigation is not enjoined. In holding that petitioners Complaint failed to state a cause of action, the Second Circuit quoted the statement from Younger v. Harris that “persons having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs in such cases.” (A 2-3). This statement by the Second Circuit clearly illustrates how the court below misconstrued the nature of petitioners’ claim and failed to recognize that a grand jury investigation can abridge a party's constitutional rights without ever resulting in an indictment and prosecution. The quoted portion of Younger relates to the claim of certain persons who felt threatened by the very existence of the alleg- edly unconstitutional statute and the pending prosecution against another, but who were not themselves threatened with any prosecution. Younger, 401 U.S. at 41-42. This has no applicabil- ity to petitioners claims. Petitioners allege that their rights will be infringed by the very existence of the grand jury investigation and the manner in which it is being pursued, not by any prose- cution which may result. In fact, petitioners fully expect that no valid indictments can be returned against the NCLC or against any NCLC members. As the Fifth Circuit recognized in Ealy v. Littlejohn, supra, a grand jury investigation itself may abridge constitutionally pro- tected rights and cause irreparable injury to individuals and organizations. In In Re Grand Jury (Schmidt), 619 F.2d at 1026- 1027, the Third Circuit elaborated an example of this principle. It noted that a political candidate's rights would be infringed by service of grand jury subpoenas upon his workers to discourage them from soliciting nominating petitions or election support. 17 The Second Circuit's opinion, however, seems to imply that only prosecution of the NCLC political organization itself could result in sufficient harm to sustain a civil rights injunctive action. The Second Circuit also seems to have reasoned that an organi- zation which has not been subpoenaed to appear before a grand jury cannot be a target of the grand jury's investigation and that a party can not be harmed by a bad faith grand jury investigation unless it is threatened with indictment and prosecution. These premises are clearly incorrect yet they form the basis of the Second Circuit's affirmance of the dismissal of the Complaint. An organization can obviously be the target of an investigation without itself being subpoenaed or otherwise subjected to the grand jury's process. A political organization can clearly be irreparably harmed by a bad faith grand jury investigation with- out itself being threatened with indictment or prosecution. Il. JUDGE PRATT ERRED IN REFUSING TO RE- CUSE HIMSELF ON THE GROUND THAT HIS IMPARTIALITY MIGHT REASONABLY BE QUESTIONED BECAUSE OF VITRIOLIC AT- TACKS ON HIS COMPETENCY BY PETITION- ERS PRIOR TO HIS APPOINTMENT TO THE COURT OF APPEALS Petitioners filed their motion to recuse Judge Pratt immedi- ately upon becoming aware that he would be sitting on the panel which would hear their appeal. Judge Pratt ruled on the motion in open court prior to hearing oral argument on the merits, and refused to recuse himself from sitting on the appeal. (A7-9). By written order dated October 3, 1983, the motion was denied “for reasons placed on the record at the beginning of oral argument.” (A4-6). Judge Pratt participated in and signed the Second Circuit's opinion affirming the dismissal of petitioners Complaint. 28 U.S.C. Section 455(a) provides that a judge “shall disqual- ify himself in any proceeding in which his impartiality might 18 reasonably be questioned.” (emphasis supplied). The standard is an objective, rather than a subjective one. Potashnick v. Port City Construction Co., 609 F.2d 1101, 1111 (5th Cir. 1980), cert. denied, 449 U.S. 820 (1980). The issue is not whether the judge is impartial in fact, but rather, whether a reasonable man might question his impartiality under all circumstances. United States v. Gigax, 605 F. 2d 507, 511 (10th Cir. 1979). A judge is required to exercise his discretion in favor of disqual- ification if he has any question about the propriety of his sitting in a particular case. Potashnick v. Port City Construction Co., supra at 1112. In their recusal motion, petitioners stated that Lyndon La- Rouche and other members of the NCLC published numerous articles which attacked Judge Pratt for his handling of the “ABSCAM"” corruption cases when he was a United States Dis- trict Court Judge, and which disputed Judge Pratt's integrity both personally and judicially and called for his removal from the bench. (A85-92). Petitioners publicly campaigned for Judge Pratt’s impeachment, and vigorously and publicly opposed his appointment to the Second Circuit Court of Appeals. The facts upon which petitioners based their recusal motion were set forth in detail in an affidavit filed together with the motion, and copies of articles published and materials circulated which attacked Judge Pratt were also attached and filed with the Court. (A85- 92). Petitioners motion, taken together with the attached affidavit and exhibits, demonstrates that recusal of Judge Pratt was re- quired by 28 U.S.C. Section 455(a). The Fifth Circuit court noted in Potashnick: Because 28 U.S.C. § 455(a) focuses on the appearance of impartiality, as opposed to the existence in fact of any bias or prejudice, a judge faced with a potential ground for disqualification ought to consider how his participation in a given case looks to the average per- son on the street. 19 Potashnick v. Port City Construction Co., 609 F.2d at 1111. Certainly, “the average person on the street”, having been made aware that articles published by the petitioners accused Judge Pratt of having “introduced abhorrent Nazi criminal law prece- dents into the American legal system” and referred to “the irrationalist rantings of Judge Pratt”, would believe that Judge Pratt could not impartially adjudicate matters involving the petitioners. As Potashnick noted, the objective standard of Sec- tion 455(a) replaced the subjective standard of the prior statute. The purpose of the new rule was “to promote the public's confidence in the impartiality and integrity of the judicial pro- cess... .” Potashnick v. Port City Constructten Co., supra at 1111. See United States v. Camden, 545 F.2d 257, 265 (1st Cir. 1976). cert. denied, 430 U.S. 909 (1977); Spires v. Hearst Corp.., 420 F.Supp. 304, 307 (C.D. Cal. 1976) (judge disqualified him- self because of complimentary article published about him by the defendant). Recusal by Judge Pratt was mandated even if he believed as he stated on the record, (A8-9), that he could impartially adju- dicate the appeal. The statute's concern is the objective appear- ance of impartiality. Blizzard v. Frechette, 601 F.2d 1217, 1220 (1st Cir. 1979) (recusal may be required “even though the judge himself may subjectively be confident of his ability to be even- handed”). This concern with the appearance of impartiality “stems from the recognized need for an unimpeachable judicial system in which the public has unwavering confidence. . . . Any question of a judge's impartiality threatens the purity of the judicial process and its institutions.” Potashnick v. Port City Construc- tion Co., supra, at 1111. As this Court has noted, the appearance of fairness and im- partiality is intertwined with considerations of due process: A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of 20 law has always endeavored to prevent even the prob- ability of unfairness. . . . [T]o perform its high func- tion in the best way “justice must satisfy the appearance of justice’. In re Murchison, 349 U.S. 133, 136 (1955) (citation omitted). For this reason, a judge must err on the side of caution and disqualify himself in a questionable case. Roberts v. Bailar, 625 F.2d 125, 129 (6th Cir. 1980); Potashnick v. Port City Construc- tion Co., supra at 1112. Judge Pratt's recusal at the time of oral argument would not have delayed oral argument or a determination of the appeal, since the Second Circuit's rules provide that two judges shall constitute a quorum. 2nd Cir. R. § 0.14. Thus, the principles of 28 U.S.C. Section 455 need not have bowed to any considera- tions of necessity or convenience. Contrast Pilla v. American Bar Association, 542 F.2d 56, (8th Cir. 1976). Since Judge Pratt refused to recuse himself, this Court should review his decision by writ of certiorari. Unless review is granted, no tribunal will have reviewed Judge Pratt’s ruling refusing to disqualify himself. In view of the fact that the standard of Sec- tion 455(a) is an objective one, such a result is not warranted. Since the appearance of impartiality is the critical factor, it is important that this court review the objective facts and deter- mine for itself the propriety of Judge Pratt’s decision. Judge Pratt may have felt that he could be impartial in adjudicating the appeal. This is not, however, the relevant test. The issue is not affected by the fact that two unchallenged judges joined Judge Pratt and ruled against the petitioners on the rherits of their appeal. If Judge Pratt was required to dis- qualify himself, then he was incompetent to sit on the appeal, and the decision of the Second Circuit was not rendered by a competent court and must be reversed. Moran v. Dillingham, 174 U.S. 153, 158 (1899); American Construction Co. v. Jack- sonville, T. & K. Ry. Co., 148 U.S. 372, 387 (1893). 21 CONCLUSION For all ot the foregoing reasons the Writ of Certiorari to the United States Court of Appeals for the Second Circuit should , be granted Respectfully submitted MIAYER MORGANROTH 24901 Northwestern Highway Southfield Michigan 48075 OpDIN P. ANDERSON One Longfellow Place Boston, Massachusetts 02114 Att rneus for Pe fittoners No IN THE Supreme Court of the Gnited States OCTOBER TERM, 1983 NATIONAL COMMITTEE and NATIONAL EXECUTIVE COMMITTEE OF THE NATIONAL CAUCUS OF LABOR COMMITTEES Petitioners, Vs ROBERT MORGENTHAU, DISTRICT ATTORNEY OF NEW YORK CouNTY and HAROLD WILSON, ASSISTANT DISTRICT ATTORNEY OF NEW YORK COUNTY. Respondents APPENDIX TO PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT INDEX TO APPENDIX Decision and Order of the United States Court of Appeals for the Second Circuit Affirming Dismissal of the Complaint Notice of Motion and Short Form Order ot Circuit Judge Ceorge ( Pratt Denving Motion tor Recusal Decision of Circuit Judge George C. Pratt Denving Motion for Recusal 4-7-A-9 Order and Decision of Vincent L. Broderick U.S.D.J., Denying Temporary and Preliminary Injunctive Relief and Dismissing the ( omplaint 4-10-A-17 Complaint 4-]15—A-42 Affidavits of Kenneth Kronberg, Nancy Shavin Barbara Boyd, Jeffrey Steinberg and Robert Greenberg in Support of the Complaint 4-43-A-5S4 Motion for Recusal and Supporting Affidavit of Barbara Boyd 4-S5-—A-92 Constitutional Provisions, Statutes and Rules Involved in the Case 4.93—A-99 A-] DECISION AND ORDER OF THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT AFFIRMING DISMISSAL OF THE COMPLAINT UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT At a stated Term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse in the City of New York, on the 11th day of October one thousand nine hundred and eightv-three Present HONORABLE RICHARD J. CARDAMONE Circuit Judge HONORABLE LAWRENCE W. PIERCE Circuit Judge HONORABLE GEORGE C. PRATT Circuit Judge Filed October 11, 1983. United States Court of Appeals for the Second Circuit. A. Daniel Fusaro, Clerk National Committee and National Executive Committee of the National Caucus of Labor Committees, Plaintiffs-Appellants, —against— Robert Morgenthau, District Attorney of New York County and Harold Wilson, Assistant District Attorney of New York County, Defendants-Appellees. ORDER Docket No. 83-7326 Appeal from the United States District Court for the Southern District of New York. Plaintiffs National Committee and National Executive Com- mittee of the National Caucus of Labor Committees (“NCLC” appeal from an order of the United States District Court for the Southern District of New York, Vincent L. Broderick, Judge, denying plaintiffs’ motions for a temporary restraining order and a preliminary injunction and dismissing their complaint for fail- ure to state a claim. The NCLC now contends that its complaint was sufficient to state a claim and seeks remand for a hearing on the merits. It is well settled that a complaint is subject to dismissal if it appears to a certainty no relief can be granted under any set of facts that can be proved in support of its allegations. Conley v. Gibson, 355 U.S. 41, 45 (1957). See also Koch v. Yunich, 333 F.2d 80, 85 (2d Cir. 1976) (“Complaints relying on the civil rights statutes are plainly insufficient unless they contain some specific allegations of fact indicating a deprivation of civil rights, rather than state simple conclusions.”). After examining the complaint and supporting affidavits, we reject appellants’ con- tention and find that the district court properly dismissed under Federal Rule of Civil Procedure 12(b)(6). In order to obtain an injunction against the New York County Grand Jury investigation, appellants must show “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc. , 596 F.2d 70, 72 (2d Cir. 1979). First, with respect to the showing of irreparable harm, appellants have made only conclusory allegations that the investigation “will cause ... irreparable harm and function solely to chill plaintiffs in the exercise of their Constitutional rights.” There is no indication, in either the complaint or sup- porting affidavits, of a factual basis for these allegations. In addition, appellants’ complaint fails to state a cause of action. As the Supreme Court has stated, “persons having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs in A-3 such cases.” Younger v. Harris, 401 U.S. 37, 42 (1971). There is no basis, in the case at bar, for suggesting that appellants are the targets of the investigation; in fact, neither has ever been subpoenaed. Moreover, appellants allegations that the investi- gation was brought in bad faith and for purposes of harassment are stated in mere conclusory terms, without any factual sup- port. We acknowledge that, under the Conley v. Gibson standard, a sua sponte dismissal under Rule 12(b)(6) should be scrutinized with the utmost care. Even under liberal pleading rules, how- ever, the complaint is clearly insufficient. No matter what set of facts the appellants may ultimately prove in support of its alle- gations, we believe that it will not suffice to satisfy the usual equitable tests. Accordingly, this Court cannot find any reason for interfering with what appears to be a legitimate and properly conducted state grand jury proceeding. The order dismissing plaintiffs’ complaint is affirmed. Ss Richard J. Cardamone, U.S.C.]J. S Lawrence W. Pierce, U.S.C.]. S George C. Pratt, U.S.C.]J N.B. Since this statement does not constitute a formal opinion of this court and is not uniformly available to all parties, it shall not be reported, cited or otherwise used in unrelated cases before this or any other court. \-4 NOTICE OF MOTION AND SHORT FORM ORDER OF CIRCUIT JUDGE GEORGE C. PRATT DENYING MOTION FOR RECUSAL PAGE ] Second Circuit Rule 27(a) governing use of this form is reprinted on reverse of Page 2. Note requirement that supporting affidavits be attached UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT NATIONAL COMMITTEE, et ano Plaintiffs-Appellants VS ROBERT MORGENTHAL, et ano Use short titl Detendants-Appellees. Docket Number: 83-7326 NOTICE OF MOTION state type of motion for Recusal of Honorable George Pratt, Circuit Judge MOTION BY: (Name and tel. no. of law firm and of attorney in charge of case ODIN ANDERSON, Attorney for Plaintiffs-Appellants 617-720-1800 Has consent of opposing counse A. been sought? _) Yes x] No B. been obtained? (J) Yes [KX] No Has service been effected? Yes {k] No Is oral argument desired? (J Yes [XK] No Substantive motions only Requested return date See Second Circuit Rule 27(b 10/3/83 Has argument date of appeal been set A. by scheduling order? x] Yes CJ No B. by firm date of argument notice? x] Yes (J No C. If Yes, enter date 10/3/83 \-95 Judge or agency whose order is being appealed Vincent Broderick, U.S.D.] Southern District of New York OPPOSING COUNSEL: (Name and tel. no. of law firm and of attorney in charge of case DONALD J. SIEWART, Attorney for Defendants-Appellees 212-553-9000 EMERGENCY MOTIONS, MOTIONS FOR STAYS & INJUNCTIONS PENDING APPEAL Has request for relief been made below? [J Yes (CJNo See F.R.A.P. Rule Would expedited appeal eliminate need for this motion? _) Yes _} No If No, explain why not: Will the parties agree to maintain the status ) Yes (©) No quo until the motion is heard? Brief statement of the relief requested: Recusal of Honorable George C. Pratt, Circuit Judge, from hear- ing oral argument and from any further proceedings on this appeal pursuant to 28 USC 455(a) and 455(b Complete Page 2 of This Form By: (Signature of Appearing Appellant or Petitioner: attorney for: (Name of {X) Plaintiff (0 Defendant party Appellee or Respondent: CJ Plaintiff () Defendant National Committee, et ano. Signed name must be printed beneath Date ODIN ANDERSON 10/2/83 A-6 eatin ~ ORDER __— Kindly leave this space blank IT IS HEREBY ORDERED that the motion, for reasons placed on the record at the beginning of oral argument be and it hereby is denied FILED OCTOBER 3, 1983 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 10/3/83 Date S George C. Pratt Circuit Judge A-7 DECISION OF CIRCUIT JUDGE GEORGE C, PRATT DENYING MOTION FOR RECUSAL UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT NATIONAL COMMITTEE and NATIONAL EXECUTIVE COMMITTEE OF THE NATIONAL CAUCUS OF LABOR COMMITTEES, Plaintiffs-Appellants, —against- §3-K P-7326 ROBERT MORGENTHAL, District Attorney of New York County and HAROLD WILSON, Assistant District Attorney of New York County Defendants-Appellees. BEFORE: HON. LAWRENCE W. PIERCE, HON. GEORGE C. PRATT, HON. RICHARD J. CARDAMONE, EXCERPT FROM PROCEEDING HELD OCTOBER 3, 1983 ™ = * APPEARANCES ATTORNEYS FOR PLAINTIFFS-APPELLANTS ODIN P. ANDERSON, Esq. One Longfellow Place Boston, Massachusetts 92114 ROBERT Rossl, Esq. ATTORNEY FOR DEFENDANTS-APPELLEES DONALD SIEWART, Esq. * = . THE Court: We have a motion addressed to Judge Pratt with respect to a motion made by the Plaintiffs-Appellants. I believe you made the motion addressed to Judge Pratt? A-5 MR. ANDERSON: May it please the Court. my name is Odin Phillips Anderson. I am co-counsel with Robert Rossi for the Plaintiffs-Appellants, National Committee With the permission of the Court, Mr. Rossi will argue the I appeal on the sheet, although his name doesn’t appear on the brief. I, as Counsel on the brief, have been ill for a substantial period of time and have been unable to prepare for oral argu- ment. And so I address simply the motion filed this morning and served on the District Attorney's Office. directed to the recusal of Justice Pratt. THE Court: That you — you — Are you going to address that, Mr. — MR. ANDERSON: I see no reason to address it further. I think it speaks for itself. except to say that the motion is brought pursuant to 28 USC 455 Section A and B] JUDGE Pratt: I was given the motion papers this morning. | read page | of the form and page 2 of the form Page 2 sets forth the factual basis for the motion, which says that Plaintiffs-Appellants have published numerous articles sharply critical of me and questioning my integrity. And they had campaigned and lobbied nationally for my impeachment and to block my appointment to this Court, all arising out of my conduct of Abscam Trials while I was a District Judge This is the first I had heard of any of this. I flipped through the next papers, and I see that there are some articles there which I have not read. So I am not influenced by what is in the articles. I do not feel, in any way, uncomfortable about sitting on the case. When I received it in preparation for the argument this morning, | had no recognition of who the Plaintiffs-Appellants were. They are totally unknown to me, other than as partici- pants in this litigation. So I see no reason to recuse myself I was not given copies of articles written by the Plaintiffs- Appe/lants that had anything to do with me in the past. I was AQ not aware that they had opposed, unsuccessfully opposed, my appointment to this bench I hold no ill will towards them. It is a free country. Lots of people have said lots of unfavorable things about me. Very few have said a few favorable things. I feel I am perfectly able to handle the case on the merits and I deny the motion I hereby certify that the foregoing is a true and accurate tran- script of the taperecording s/ Judith Roman JUDITH ROMAN — HEAR- ING REPORTER 4-10 ORDER AND DECISION OF VINCENT L. BRODERICK, U.S.D.J.,. DENYING TEMPORARY AND PRELIMINARY INJUNCTIVE RELIEF AND DISMISSING THE COMPLAINT UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK X NATIONAL COMMITTEE, et al.. 83 Civ. 2335 (VLB Plaintiffs, ORDER —against- U.S. DISTRICT COURT ROBERT M. MORGENTHAL., et al.. FILED Defendants APRIL 14, 1983 X S$.D. OF N.Y. VINCENT L. BRODERICK, U.S.D.J For reasons set forth on the record at argument on April §, 1983, plaintiffs motion for a temporary restraining order and preliminary injunction is denied, and the complaint is dis- missed. SO ORDERED. Vincent L. Broderick, U.S.D.J. Dated: New York, New York April 13, 1953 MICROFILM APRIL 14, 1983 Copies Mailed to Counsel of Record , A TRUE COPY RAYMOND BURGHARDT By Freeman Deputy Clerk A-1] UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK NATIONAL COMMITTEE AND NATIONAL EXECUTIVE COMMITTEE OF THE NATIONAL CAUCUS OF LABOR COMMITTEES, Plaintiffs, —against— §3 Civ. 2338 ROBERT MORGENTHAL, District Attorney of New York County, and HAROLD WILSON, Assistant District Attorney of New York County Defendants April 8, 1983 4:30 p.m BEFORE: HON. VINCENT L. BRODERICK, District Judge APPEARANCES: ODIN P. ANDERSON, ESQ., Attorney for Plaintiffs HAROLD WILSON, A.D.A., ESQ., Attorney for Defendants Reces > Open court THE COURT: The first question which must be addressed is that of the standing of the plaintiff. While this is something which would be subject to re-examination as more facts develop, I find for the purposes of the particular application which has been made for a temporary restraining order and a preliminary injunction that the allegations of the complaint provide a basis to find that the plaintiff can bring this action. I have reviewed in the colloquy with counsel the thrust of the allegations as I see them and the status of the grand jury inves- tigation. I do not find on the basis of what is before me any warrant to interfere with the lawful functioning of the grand jury The fact of the printing and the attempted distribution of the publication the Profiles of the Times is apparently not in dis- pute. It is not in dispute that the New York District Attorney's office acting upon the complaint of a party directly injured by that publication was investigating the circumstances of that sit- uation. This is an entirely appropriate function for a District Attorney. The complaint in this matter is, as I said during the earlier colloquy, an exhaustive complaint. It covers the activities of various entities in various parts of the world over an extended period of time. The New York District Attorney s office and the grand jury is operating in the matter before me on a much more finite basis. It is investigating allegations that crimes were com- mitted within its jurisdiction. There is not before me any suggestion that the persons sub- poenaed were not present at the premises, the press at the time that the search warrant was executed. Questions that were raised in state court with respect to the propriety of the actual preparation of subpoenas by police offi- cers on instructions from the District Attorney are not before me. That is a matter of state law. It would be a highly unusual A-13 and, in my judgment, highly improper step for this court to interfere with the District Attorney in the exercise of its func- tions and to interfere with the grand jury in the exercise of its functions. I have found that for the purposes of this application, the plaintiff has standing. I have further found, however, that the plaintiff has made no showing of probable irreparable injury. The investigation that is going on is a grand jury investigat: a. It is one that may or may not result in the bringing of charges of criminal activity against one or more people. There is certainly no evidence before me at the present time that indicates that any of those grand jury subpoenas were directed to members of the plaintiff core mem- bers and, even if they had been, on the circumstances that are before me, it would have been quite appropriate to serve such subpoenas if those persons were involved or thought to be involved in an activity that was being investigated. I have considered the various cases in which interference by a federal court with law enforcement activity has been upheld and I do not see how any of those cases pertain to the situation before me. It would be an unhealthy situation, indeed, in my judgment, if the federal court, except in extremely unusual circumstances, interfered with a state district attorney's office and with a grand jury in the investigation of possible crime. In analyzing the complaint and in accepting as true for pur- poses of this application the allegations of that complaint, I find nothing in it that suggests any basis for intervention by this court. The complaint, as I have already mentioned, ranges widely. It covers a vast period of time and it covers activities in various areas of the globe. The very volume of the allegations in the complaint points up, in my judgment, the sparsity of those allegations which relate in any way to the District Attorney's office or which relate in any way to the investigation which is currently under way. This is not a situation where the District Attorney is conducting an investigation where there has been no wrongdoing and where there has been no complaint about wrongdoing. There has been wrongdoing in that a publication A-l4 has been circulated under false pretenses and there has been a complaint about that wrongdoing. I can envision no untoward consequences to the plaintiff in this action by that investigation continuing and I can see, there- fore, no basis upon which preliminary relief would be justified. There is, in this case, it seems to me, a convergence of the relief that is asked for in this complaint—a temporary restraining order, preliminary injunction and permanent injunction—they are all asked with respect to this investigation and other inves- tigations by the District Attorney's office and yet this, I think, is the only investigation which is complained about in the com- plaint and given this disposition of the application for a tempo- rary restraining order and preliminary injunction, it seems to me that it will be appropriate at this time to dismiss the com- plaint. Yes, sir. MR. ANDERSON: Would your Honor consider taking less drastic action than dismissing the complaint at this stage and, excepting as we must your Honors denial for our request for a temporary restraining order, would your Honor simply take action on that and deny our request for a temporary restraining order which would obviously not in any way impede the grand jury from going forward in its ordinary course? THE COURT: How are you injured, Mr. Anderson? Because you undou.tedly will appeal my ruling and if you do appeal and I am reversed, the whole matter will be reinstated including the complaint. MR. ANDERSON: Rather than following that route, your Honor, I am suggesting there might bé another route equally applicable without any of the concerns your Honor has men- tioned of interfering with, as your Honor characterized, the legitimate investigatorial powers of the grand jury. I would ask your Honor to deny our request, if you will, for a temporary restraining order but schedule, without in any way impacting the grand jury at this stage a hearing on a motion for A-15 a preliminary injunction which evidence could be taken to allow us to support further and meet the burdens that your Honor has suggested we have not made a sufficient showing of at this stage? THE COURT: No, I will not do that at this stage. I will not entertain an application for a preliminary injunction at this stage Mr. Anderson, your complaint is directed to the present investigative activity of the New York District Attorney's office and if you don't receive relief now, which I have denied you, | find it hard to see how vou could receive it in the future? MR. ANDERSON: Well, maybe I'm an optimist, your Honor? I have a feeling that in fact if evidence were presented by way of live testimony that an entirely different pall might be cast on this— THE COURT: This is a part of my ruling. I will not at this point conduct an investigation into the propriety of the ongoing grand jury investigation and I cannot see how the passage of time would change that. It may be at some time the grand jury will take action and then it would seem to me you might have a different complaint If you can tell me some reason why I should not dismiss the complaint, I certainly will consider it, but I can't see a reason not to dismiss it and I don't really see how you are adversely affected by the dismissal? MR. ANDERSON: Without quarreling your Honor's findings of fact as to our failure to demonstrate probable irreparable injury, I would have to quarrel with your Honor’s factual find- ings. I don't think that’s appropriate. I have a different point of view suffice it to say. It is my feeling, your Honor, that if your Honor is con- cerned—and I can understand how very difficult it must be for a federal jurist to be asked to take an action which directly would affect a state proceeding and an ongoing investigation. If your Honor’s determination at this stage is, as I understand it to be, that while we do have standing, although you didn’t A-16 enunciate the particular grounds upon which you predicated that determination, we do have standing, we have failed to demonstrate at least one of the criteria, the likelihood of irrepar- able harm, then I would ask your Honor simply to, if you will, split the apple. You don't want to interfere with the state pro- ceeding at this stage, fine, we have not made a sufficient show- ing. Give us an opportunity by way of the taking of evidence without in any way stalling, staying or enjoining or restraining the investigation in its current stage to allow us to schedule a hearing on a preliminary injunction. I don’t think that certainly hurts the State of New York. It preserves this as a live contro- versy which I believe is the most appropriate posture for it to be in and would give us the opportunity to meet the burden which your Honor suggests we have not at this stage met. It is essentially as simple as that THE COURT: Mr. Wilson, do you have any view? MR. WILSON: Your Honor, I think the court’s observation that the relief requested by the plaintiff, the request for the TRO, the preliminary injunction, the declaratory judgment and permanent injunction, they do converge together and unless the court is prepared to conduct a hearing which would be really nothing more than an investigation into the bona fides of the grand jury investigation, I agree with your Honor’s assessment that the appropriate— THE COURT: I didn't expect you to disagree MR. WILSON: The appropriate adjudication is one of dis- missal. I think the court has said that if the grand jury would take any kind of affirmative action that might open up some other avenue for the complainants to recommence a complaint. But I don't have any dissent to make with the court's finding, your Honor. THE COURT: Mr. Anderson, it seems to me that my finding is that while for the purposes of this motion I have found that you had standing, your entire complaint here is that an im- proper investigation is going on and that you have been irrepar- ably injured. I am finding that there has not been a showing A-17 that the investigation is improper. I then went on and made a finding on irreparable harm with the thought that if the Court of Appeals found I was wrong on the finding preliminary to that, that it would also have my finding with respect to irreparable harm in the event that I was wrong, but ultimately my finding is that the allegations in your complaint do not state a cause of action and I dismiss the complaint Thank you, gentlemen Rec ord ( losed COMPLAINT UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK NATIONAL COMMITTEE and NATIONAL EXECUTIVE COMMITTEE OF THE NATIONAL CAUCUS OF LABOR COMMITTEES, Plaintiffs, VS ROBERT MORGENTHAL, District Attorney of New York County and HAROLD WILSON, Assistant District Attorney of New York County, Defendants Plaintiffs, by their undersigned attorney, for their complaint against the defendants, allege as follows PRELIMINARY STATEMENT 1. This is a complaint for declaratory relief and preliminary and permanent injunctive relief against the defendants who have instituted Grand Jury proceedings and other law enforce- ment investigations in which the political organization, the Na- tional Caucus of Labor Committees and its members, are the targets of investigation. Plaintiffs, the governing bodies of the National Caucus of Labor Committees (“NCLC’”), allege that the Grand Jury proceedings and other law enforcement investiga- tive actions undertaken by the defendants against the NCLC and its members are brought in bad faith, for purposes of har- assment and without a reasonable possibility of success. The Grand Jury proceedings and other law enforcement investiga- tions have been undertaken by the defendants in retaliation for and to deter plaintiff political organization and its members from A-19 exercising their constitutionally protected rights to freedom of speech and of the press, to peacefully assemble and to freely associate, to petition the government for redress of their griev- ances, to register to vote and to vote, and to otherwise achieve the full rights of American citizenship by fully and equally participating in the democratic processes of our social and polit- ical system. Were it not for this impermissible motive, the instant Grand Jury proceedings and investigations would not be brought. The Grand Jury proceedings and investigations of the NCLC and its members by the defendants are designed to, have in fact and will contravene, under color of state law, rights guaranteed to the political organization and its members under the First, Fifth, Ninth and Fourteenth Amendments to the United States Constitution. Defendants have conspired under color of state law to unlawfully prosecute plaintiffs for their private ends and purposes. The instant Grand Jury is also without subject matter jurisdiction and all actions of the defendants complained of herein are ultra vires and without authority in law. The District Attorney and the Assistant District Attorney are also abusing the Grand Jury process by presenting the results of their investigations to unauthorized law enforcement personnel and private individuals who are political opponents of the NCLC. Some of these individuals have been or are private litigants in suits involving the NCLC. These individuals and others plan to utilize information developed from the instant Grand Jury pro- ceedings and investigations in civil proceedings involving the NCLC. The defendants are fully aware of the political animus and unlawful motives of the NCLC’s political opponents, share this political animus and are affirmatively and fully cooperating in this use of the law enforcement machinery of the State of New York for the private litigative and political advantage of the NCLC’s political opponents. Without the intervention of this Court, plaintiffs have suf- fered and will continue to suffer irreparable harm as a result of defendants’ bad faith actions, under color of state law, retaliating A-20 for plaintiffs exercise of their First Amendment and other Con- stitutional rights. JURISDICTION 2. This action arises under the First, Fourth, Fifth, Ninth and Fourteenth Amendments to the United States Constitution, 42 U.S.C. 1983 and 42 U.S.C. 1958. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. 1331, 28 U.S.C. 1343 (1)-(3), and 28 U.S.C. 2201 and 2202. PARTIES A. Plaintiffs. 3. Plaintiffs are the governing bodies of the National Caucus of Labor Committees. The NCLC is a political organization founded by Lyndon H. LaRouche, Jr. in 1968. The NCLC has its principal offices at New York, New York. It is an unincorpor- ated political association. The National Executive Committee of the NCLC is composed of 16 individuals and is responsible for formulating and effecting the political policies and programs of the organization. The National Committee of the NCLC is com- posed of 26 individuals and is responsible for formulating and effecting the policies and programs of the organization through designated areas of organizational responsibility. 4. As is set forth fully below, the National Caucus of Labor Committees political organization is the target of the instant Grand Jury proceedings and investigations. Nine members of the NCLC have been subpoenaed to appear before the Grand Jury and fifteen employees of a printing company which is managed by members of the NCLC have been similarly subpoe- naed to appear before the Grand Jury. 5. Since 1971 the NCLC has campaigned nationally and in- ternationally for national and international monetary reforms and accompanying policies of advanced technology and basic A-21 scientific development as the only effective solution to the depression conditions now permeating the world economy. The NCLC has concretely specified programs for the most rapid and capital intensive development of the Third World by the ad- vanced sector as the only means for preventing economic geno- cide in the Third World while reviving the dying industrial economies and scientific traditions of the advanced sector through such a project. 6. In its campaigns to implement this program, the NCLC has politically opposed individuals and organizations whose pro- grams and actions are centered in the philosophies of Neo- Malthusianism, environmentalism and British philosophical rad- icalism of both the left and right wing varieties. The NCLC locates the authors and beneficiaries of these political move- ments in an identifiable oligarchical grouping of financiers whose goal is to preserve their power through what they view as an inevitable world financial collapse while substituting a feudal and colonialist structure of societies for the present system of sovereign nation states. A corollary result of the NCLC’s specific monetary reform proposals would be the bankruptcy of these financial interests. 7. Members of the NCLC have been and are associated with initiating and supporting other organizations which function to present and propagate ideas and issues of political interest to the NCLC to the American public. The Fusion Energy Foun- dation was initiated by Lyndon LaRouche in 1974 to promote scientific studies of fusion energy development, advanced nu- clear energy development and associated industrialization poli- cies. The National Anti-Drug Coalition was founded in 1978 to campaign for drug enforcement policies and legislation directed at the international criminal elements and financial institutions directly involved in the drug economy and the promotion of drug use and the drug sub-culture. The National Democratic Policy Committee was founded in 1980 as a political action committee within the Democratic Party and campaigns for can- didates for public office who endorse or support the economic, scientific, cultural and political policies developed by members of the NCLC. §. Some members of the NCLC are also involved in publish- } ing a weekly review of world political and strategic events, the Executive Intelligence Review, and a bi-weekly newspaper New Solidarity. A monthly newsletter, Investigative Leads, ad- dressed to the problems ot international terrorism arug en- forcement and other intelligence issues is also published by members of the NCLC and directed primarily to a readership in the law enforcement and intelligence communities 9. A substantial proportion of the NCLC membership is di- rectly involved on a dav to dav basis In news gathering and publication activities. Sales of publications authored by mem- bers of the NCLC constitute the means of subsistence for mem- bers of the political organization and for continued publication and dissemination of the political analyses and ix with the NCLC fas assoc iated 10. Since 1973 the NCLC has presented in depth investiga- tive reports and analyses to an international audience concern- ing the individuals and organizations controlling international terrorist phenomena and the drug trade. The NCLC has also comprehensively reported on the geopolitic al and military strat- egies and cultural designs of the oligarchical financial faction which presently exercises control over world monetary policy The NCLC has consistently sought to become the primary alter- native private intelligence resource organization for govern- ments and political policy factions and has designed its investigative and publication activities accordingly. In the course of such activities, NCLC members have, necessarily, developed many confidential news sources in the intelligence, law enforce- ment, and governmental sectors of several countries 11. In the Summer of 1982, Lyndon LaRouche began circu- lating a major policy document to the nations of the Third World entitled “Operation Juarez”. The document calls for the forma- tion of a “debtors’ cartel” in the Third World. The debtors’ cartel would enforce the demands of developing sector for massive industrialization and development projects upon the advanced sector by utilizing the cumulative debt of the Third World as a “weapon” for negotiation with the advanced sector rather than a 4-23 nation by nation liability. The cumulative debt of the Third World presently threatens the entire structure of the interna- tional monetary system. LaRouche’s proposal that the Third World propose that the advanced sector undergo a monetary reorganization favoring its development or face a unilateral dec- laration of moratoriums on all outstanding debt to the advanced sector, has therefore been characterized as the “debt bomb” prope sal 12. Under the program put forward in Operation Juarez, American and international finances would be returned to the gold standard, and international monetary and credit policies would be absolutely biased toward policies of technological and industrial development in the Third World sector. Speculative financial operations would cease to be the major phenomena in the world economy through punitive tax and credit policies toward such operations 13. Since the circulation of Operation Juarez, the policies of Mr. LaRouche and his associates have become a major factor in the policy deliberations of Third World and other nations. In- vestigative exposes published in the Executive Intelligence Re- view have been widely republished in major publications throughout the Third World 14. The Executive Intelligence Review also provides an eco- nomic forecasting service which has been consistently accurate concerning the actual economic condition of the United States and other advanced sector economies where all other forecasting services have been consistently erroneous. The EIR’s economic forecasts are now subscribed to as an alternative financial intel- ligence source by leading factions of Third World and other governments 15. Mr. LaRouche’s increasing policy influence in the Third World has been accompanied by increasing political influence in the United States. In 1982 political candidates backed by the National Democratic Policy Committee received vote totals from 18% to 49% in major races despite the relative paucity of the NDPC’s financial resources. Mr. LaRouche has indicated a will- ingness to seek the Democratic nomination for President of the A-24 United States in 1984 although he has not formally announced his candidacy. As is set forth fully below, Mr. LaRouche’s 1980 Democratic Presidential candidacy was denounced by the New York Times and the present political factions constituting the leadership of the Democratic Party 16. Member of the NCLC also constitute the management of PMR Printing Company, a printing company in New York City, which prints practically all publications associated with the NCLC. 17. The NCLC, its policies, programs and associated publi- cations are controversial. As is more fully set forth below, the organization and its members have been subjected to repeated attacks in the media and law enforcement investigations insti- gated by or through individuals who are political opponents of the NCLC B. Defendants. 18. Robert Morgenthau is the District Attorney of New York County and is the individual charged with enforcing the criminal laws of the State of New York in New York County. At all times material to this complaint Robert Morgenthau acted and is acting under color of law, statute, ordinance and custom of the State of New York 19. Harold Wilson is an Assistant District Attorney in New York County, charged with enforcing the criminal laws of the State of New York in New York County and is, upon information and belief, the assistant assigned to the Grand Jury and other investigations of the NCLC giving rise to this lawsuit. At all times material to this complaint, Harold Wilson acted and is acting under color of law, statute, ordinance and custom of the State of New York. ALLEGATIONS AND FACTUAL RECITATION 20. Pursuant to search warrant signed by the Honorable Jef- frey Atlas of the Supreme Court, New York County, seventeen individuals identifying themselves as detectives of the New York A-25 City Police Department searched the premises of PMR Printing Company, Inc. (“PMR”) at 207 West 25th Street, New York, New York on November 16, 1952. A photocopy of the search warrant which was left by police authorities at the subject prem- ises is annexed as Exhibit “A” 21. During the course of the search at PMR, detectives or- dered individuals present on the premises to produce their identification to the detectives. According to the detectives such production was required for the search. Upon production of the identification, the detectives filled out otherwise blank Grand Jury subpoenas to the individuals and served the individuals with the Grand Jury subpoenas. (See the Affidavit of Kenneth Kronberg, annexed as Exhibit “B”). By this process, 22 individ- uals constituting the entire day shift and management of PMR Printing Company were subpoenaed to appear before the New York County Grand Jury at the same time on the same day. 22. Another individual, Barbara Boyd, was subpoenaed to appear before the Grand Jury when she arrivedeat the premises of PMR on November 16th, 1982, despite her statement to the detectives that she was not employed by PMR Printing Com- pany, in response to her questioning of the detectives concern- ing the legal validity of their activities under the search warrant. (See the Affidavit of Barbara Boyd, annexed as Exhibit “C”). On December 8, 1982, Jesus Gonzales, an individual employed as a truck driver at PMR was also subpoenaed to appear before the New York County Grand Jury by a Detective who was waiting for him outside the premises of PMR. 23. Upon information and belief, the cutting knives to a King Press on PMR’s premises, specified in the search warrant, were the only items confiscated by the detectives at the premises pursuant to the search warrant. The search warrant specifies that the subject of the search activities was the pamphlet “Pro- files of the Times.” “Profiles of the Times” is, upon information and belief, a parody pamphlet, resembling, in some respects, the book review section of the Sunday New York Times. The printing and publication of this pamphlet is at issue in the Grand Jury proceedings challenged in this lawsuit. A-26 24. On October 26, 1952, the article annexed as Exhibit “D” was published in the New York Times. According to the article, Manhattan District Attorney Robert Morgenthau began inves- tigating a pamphlet entitled “Profiles of the Times” on October 25, 1982 upon complaints from the New York Times and Roy M Cohn 25. In the article annexed as Exhibit “D", New York Times General Counsel Catherine Darrow states that the insertion of unauthorized advertising sections in newspapers or magazines is a misdemeanor under New York law. According to the Times account, copies of the pamphlet were delivered by three men in a dark van to newsstands in Manhattan and Queens. Some newsdealers said the deliverers instructed them to insert the article in the Times, and about 1,000 copies of the pamphlet may have been circulated, according to the Times account 26. On October 27, 1982, the article annexed as Exhibit “E”, appeared in the Village Voice. The article quotes Robert Mor- genthau's secretary to the effect that the District Attorney's office is probing the “hoax” on the New York Times to determine “if any crime was committed by the parties involved”. The Village Voice named political associates of Lyndon H. La- Rouche, Jr. as targets of the District Attorney's investigation. 27. The article annexed as Exhibit “E” appeared in the Our Town newspaper for November 14th-20th, 1982. It offers a $10,000 reward for information leading to the arrest and even- tual conviction of the person or persons who published and circulated “Profiles of the Times”. The reward offer specifies that individuals associated with Lyndon LaRouche should be particularly targetted for investigation. 28. By affirmation dated January 6, 1983, and submitted in proceedings before the Appellate Division, First Department of New York Supreme Court, defendant Wilson stated that the Grand Jury proceedings to which individuals on the premises of PMR Printing Company were subpoenaed on November 16, 1982 are pursuant to aliegations of criminal conduct surrounding the publication and distribution of “Profiles of the Times’: “Among the crimes being investigated are Forgery, Criminal A-27 Possession of a Forged Instrument, Possession of Forgery De- vices, Conspiracy, Violations of the General Business Law and related crimes.” 29. Plaintiffs have reviewed the criminal codes of the State of New York and the disputed pamphlet entitled “Profiles of the Times. Plaintiffs have found no cases under the criminal code wherein the sections of the criminal codes specified in paragraph 28 of this complaint were applied to the alleged activities com- plained of by the New York Times in paragraph 25 of this complaint. Parody editions of well-known national publications have been published and/or distributed and sold repeatedly in the State of New York without criminal sanctions or an attempt to apply the criminal codes to such activities. 30. Upon information and belief, the complainants may have civil remedies concerning the contents of “Profiles of the Times” against the person or persons responsible for the pamphlet, including an action for defamation, but such civil remedies are not properly cognizable under the criminal laws of the State of New York. Plaintiffs believe the defendants have cited the crim- inal violations specified in paragraph 28 in a deliberate attempt to magnify the significance of the activities under investigation in order to justify the oppressiveness and intrusiveness of their bad faith actions against the NCLC. Moreover, were it not for defendents’ desire to retaliate and deter plaintiffs in the exercise of their First Amendment and other Constitutional rights the instant Grand Jury proceedings and investigations would not be brought. 31. The publications specifying the plaintiffs as the preferred targets of the District Attorney's investigation, the Village Voice and Our Town, have engaged in a long-standing campaign of villification and similarly bizarre accusations against the plain- tiffs. Four individuals associated with these publications, (Ed- ward Kayatt, Dennis King and Kalev Pehme of Our Town, and Joe Conason of the Village Voice) have been specified to plain- tiffs by confidential sources as individuals to whom the results of the District Attorney's investigations are being unlawfully disclosed and as sources for the District Attorney in the instant A-25 investigation. The same confidential sources have specified that plaintiffs are the targets of an unlawful plan of prosecution involving both state and federal agencies and that a part of this plan will be public media defamations of the plaintiffs to give credibility to what otherwise would be ludicrous allegations and charges. Moreover, the defendant District Attorney is moti- vated by the same political animus toward plaintiffs as Dennis King, Edward Kayatt, Kalev Pehme, Joe Conason and the New York Times. This political animus was the determining factor in the decision by the District Attorney to launch the instant bad faith investigation in retaliation for the political policies and programs advocated by the plaintiffs. POLITICAL ANIMUS OF THE DISTRICT ATTORNEY AND THE COMPLAINANTS 32. As is set forth in the accompanying affidavit of Jeffrey Steinberg, (Exhibit “F”), District Attorney Morgenthau, the New York Times and Roy Cohn are political adversaries of the NCLC and Lyndon LaRouche. Cohn and the Times were in- volved in a major and coordinated effort in 1979 to launch federal and state law enforcement investigations against La- Rouche and members of the NCLC in retaliation solely for the expressed political programs and policies of LaRouche and the NCLC. The International Herald Tribune, a publication par- tially owned by the New York Times, was found guilty of crimi- nal libel of Lyndon LaRouche by a French Court when it republished the New York Times 1979 series on LaRouche. The New York Times also served as a conduit for FBI originated defamations concerning the NCLC during the FBI's 10-year domestic security investigation of the NCLC. 33. District Attorney Robert Morgenthau was formerly a na- tional committee member of the Anti-Defamation League of BNai Brith (“ADL”) and maintains continuing relationships with officials of that organization including Irwin Suall, Arnold Forster, Justin Finger, Kenneth Bialkin and others. The ADL has consistently defamed the NCLC and Lyndon LaRouche as A-29 “anti-Semitic” in a persistent international harassment campaign against LaRouche and his associates dating from 1977. 34. The NCLC identifies the ADL as an asset of an intelli- gence network spawned by Jay Lovestone in the United States and internationally, a network which is politically affiliated with the Second Socialist International. This intelligence network has been repeatedly implicated in international operations involving drugs and political terrorism. 35. In the United States, by the statements of ADL officials, ADL harassment efforts are concentrated on the use of law enforcement investigations and compliant law enforcement ofh- cials to achieve the ADL’s declared aim of destroying the NCLC political organization. According to the statements of Abbott Rosen, a national official of the ADL, the ADL knows these investigations are discriminatory and without legal merit. The design of the harassment effort is to drive the NCLC “out of business’. State and federal law enforcement investigations are the preferred vehicle for the ADL’s illegal actions because pri- vate abusive legal actions expose the participant to civil discov- ery and might enhance rather than defeat the credibility of the NCLC. (See the Affidavit of Robin Hyman and the transcript annexed thereto, Exhibit “G’). 35. District Attorney Robert Morgenthau is also presently the national co-chairman of an organization called the Interna- _ tional Conference for PEACE, a propaganda organization for West Bank expansion policies founded by Ariel Sharon in the United States. Upon information and belief, Morgenthau is a close personal friend of Ariel Sharon 36. The NCLC, in political campaigns within Israel, Western Europe and the United States for Middle East peace based upon intensive scientific and economic development of the en- tire region, has consistently opposed the Sharon faction in Isra- eli politics. The NCLC has investigated and exposed the domination of this faction by organized crime elements, the “Israeli mafia’, acting against the interests of the Jewish com- munity in the Middle East and internationally. A-30 37. As is set forth in the Steinberg affidavit, “Exhibit F”. contemporaneously with the instigation of the instant Grand Jury proceedings, NCLC members were publishing in the Ex- ecutive Intelligence Review detailed exposes of the involvement of the Sharon faction in Israel with Lord Carrington and Henry Kissinger in major real estate dealings, aimed at buying up the West Bank and substantively destabilizing Israeli politics, an operation for which PEACE was a critical United States propa- ganda vehicle. These exposes received wide circulation through EIR’s readership in Israel and throughout the Middle East. 38. Meir Jolawitz, a national board member of PEACE, is also the National Director of the Jewish Defense League (“JDL”). Defendants Morgenthau and Wilson have repeatedly refused to investigate threats delivered to members of the NCLC by the JDL. Defendant Morgenthau appears to have an agreement with Jolawitz that any attacks on the NCLC by the JDL will not be prosecuted. Meir Jolawitz has stated to an investigator for the NCLC that the JDL has received outside funding for attacks against NCLC members. (See Steinberg Affidavit, Exhibit “F”). Since the instigation of the instant Grand Jury proceedings there has been a renewed pattern of threats by the JDL to NCLC members. 39. District Attorney Morgenthau is a Board member of the Puerto Rican Legal Defense Fund, an organization which has been investigated by the NCLC for its ties to the FALN orga- nization and terrorism. The District Attorney's wife, Lucinda Franks, is a reporter who has extensively reported upon the Weathermen and other terrorist organizations for the New York Times and other publications. Lucinda Franks is a former em- ployee of the New York Times. Franks states in her articles that she empathized with her terrorist subjects and gained their trust. The Weathermen and similar terrorist organizations have repeatedly threatened the NCLC and LaRouche since 1968. (See Steinberg Affidavit, Exhibit “F”). 40. Prior to the instant Grand Jury proceedings, District Attorney Morgenthau was involved, to plaintiffs’ knowledge, in two other hostile and legally questionable actions against plain- A-31 tiffs in his official capacity. In 1975, the District Attorney re- quired Lyndon LaRouche’s personal testimony in a criminal proceeding on extremely questionable legal grounds. The call by the District Attorney for LaRouche's testimony followed a very serious security incident at a public appearance by La- Rouche in Detroit, Michigan. Morgenthau refused all requests for security provisions for LaRouche. Federal court intervention resulted in the provision of minimal security protection by the District Attorneys office for LaRouche at the time of his testi- mony. (Steinberg Affidavit, Exhibit “F’). 41. On December 16, 1981, Dennis King and Chip Berlet (a free-lance journalist who is a contributing editor to “High Times” magazine, a publication advocating and advertising drug use and paraphenalia), alleged in a press conference in Washington D.C. that the NCLC was tied to right-wing elements of the Central Intelligence Agency, including Edwin Wilson and Frank Terpil. Berlet and King cited tape recordings of conversations between Terpil and Mitchell Warbell, an individual involved in training NCLC security personnel, as the basis for these allegations. The tape recordings were leaked to journalists by a detective in the New York City Police Department working under the supervi- sion of District Attorney Morgenthau in the Terpil-Wilson in- vestigation. In that case, the New York Times worked closely with District Attorney Morgenthau in demands for federal pros- ecution. Sergeant Melvin Woike, the police detective who ob- tained the search warrant on PMR’s premises, was the arresting officer in the arrest of Frank Terpil. (Steinberg Affidavit, Exhibit Eo} 42. The same December 16, 1981 press conference by King and Berlet called for federal and state prosecution of the NCLC under a variety of bizarre legal pretexts including violations of the foreign agents registration act, the campaign finance laws, the espionage laws, and the Internal Revenue Code. INVESTIGATIVE ACTIONS 43. On or about October 26, 1982, Jeffrey Steinberg of the NCLC began receiving detailed information from confidential law enforcement and other sources concerning the “Profiles of A-32 the Times” investigation by District Attorney Morgenthau. The information relayed is in correspondence with the development of the New York Grand Jury proceedings and investigation concerning “Profiles of the Times” and contemporaneous bad faith actions of other investigative agencies. 44. As is set forth in detail in the Steinberg affidavit, his sources reported to him: (1) the NCLC was the target of the Grand Jury proceedings concerning “Profiles of the Times’; (2) the Grand Jury process in New York County is being utilized for purposes of generating information for civil lawsuits by the New York Times, Roy Cohn and other individuals pursuant to a general plan of “financially bleeding” and diverting the NCLC from its political activities; (3) information developed from the Grand Jury proceedings in New York County and the District Attorney's investigation and presentation to the Grand Jury is being discussed in detail with political opponents of Lyndon LaRouche, including the New York Times, Our Town newspa- per, Dennis King, Kalev Pehme, Chip Berlet, the ADL, Manny Goldstein and Roy Cohn and with federal and state law enforce- ment authorities not assigned to the “Profiles of the Times” investigation; these individuals and entities are, in turn, serving as the District Attorneys’ informants in the investigation; (4) the Grand Jury proceedings in New York County are undertaken not for the purposes of obtaining a valid conviction, but solely for the purposes of generating information on individual mem- bers of the NCLC and its organizational structure for broader private civil litigative actions against the NCLC and associated organizations and state and federal prosecutorial actions against the NCLC to be undertaken simultaneously. These investiga- tions are aimed at permanently discrediting the NCLC, sever- ing all relationships between members of the NCLC.and law enforcement, intelligence and government news sources and political collaborators and destroying the very fabric of the NCLC political organization and are without legal authority; (5) the indicated legal assault against the NCLC would be accompanied by media “exposes” of the NCLC calling for prosecutions and legal actions against members of the NCLC and organizations and individuals associated with the NCLC; individuals associ- A-33 ated with the news media would also be utilized to conduct investigations concerning the NCLC with information gener- ated by these investigations promptly delivered, by prior agree- ment, to the law enforcement agencies; (6) law enforcement authorities and private agencies engaged in this legal assault had placed informants within the NCLC and associated organiza- tions for purposes of gathering information for harassment activ- ities against NCLC members and for disrupting the NCLC organization; the same authorities were also seeking means to fabricate evidence against the NCLC. According to the Stein- berg affidavit, sources providing detailed information concern- ing these unlawful and retaliatory actions against the NCLC specified that the decision, by political opponents of the NCLC and Lyndon LaRouche, to go forward with these actions was made on the basis of Lyndon LaRouche’s increasing political influence in the United States, the Third World and Western Europe. 45. Upon information and belief, the District Attorney placed an informant within the staff of PMR Printing Company, who was named Jeff Saunders, pursuant to the unlawful and provoc- ative planned use of informants specified by Steinberg’s sources and otherwise in violation of the constitutional rights of plaintiffs and members of plaintiff organization. When Saunders was fired from PMR for his disruptive activities including attempts to start fights in the plant he stated to Nancy Shavin that the instant bad faith proceeding concerning “Profiles of the Times” was only one of a series of retributive proceedings to be undertaken by the District Attorney and other authorities including actions for violations of the state tax and labor laws. (See affidavit of Nancy Shavin, annexed as Exhibit “H”, affidavit of Kenneth Kronberg, annexed as Exhibit “B”). 46. Upon information and belief, Jonathan Beaty, a reporter for Time Magazine, is a reporter and informant being utilized by the District Attorney pursuant to the investigative plan spec- ified by Steinberg’s sources for gathering information concern- ing the NCLC and otherwise in violation of the Constitutional rights of plaintiff political organization and its members. Beaty attempted to solicit comment concerning “Profiles of the Times” A-34 from Robert Greenberg and Lyndon LaRouche of the NCLC. Beaty has in the past been intimately associated with the United States Department of Justice and the Federal Bureau of Inves- tigation. 47. Defendants’ conceded actions in the “Profiles of the Times” investigation to date, the timing of the investigation and the relationship and the history of the parties involved in addition to the incidents of prosecutorial and investigative misconduct alleged in paragraphs 45 and 46, are prima facie indicia that this investigation is proceeding in bad faith for an impermissible purpose. 48. Seventeen New York City Police Detectives raided a printing plant and subpoenaed the entire workforce of the plant to appear before the Grand Jury at the same time on the same day. The District Attorney gratuitously asserts that multiple misdemeanors and a felony count are being investigated to justify the prosecutorial deployment and resources involved in the investigation. The investigation is initiated when plaintiffs publish exposes of illegal activities of the Sharon faction in Israel. The prosecutor, Robert Morgenthau, is intimately asso- ciated with this political faction. The prosecutor is also associ- ated with an organization, the ADL, which advocates the unlawful use of state and federal law enforcement machinery against the plaintiffs in order to retaliate for and deter plaintiffs in the exercise of their Constitutional rights. ADL officials have specified that this is a preferred means of attack since abusive civil actions might subject the initiators to civil discovery by the NCLC and enhance rather than destroy the NCLC’s credibility and reputation. The prosecutor has refused to investigate terror- ist threats made to plaintiffs by the JDL. The prosecutor is an official of an organization which also includes the national head of the JDL as an official, “PEACE.” Robert Morgenthau’s office participated in past leaks of investigative materials from the Terpil-Wilson investigations to individuals known to be hostile to plaintiffs and these leaks were used in defamations of plaintiffs specifically linking them to terrorism and the Central Intelli- gence Agency. 4-35 49. Upon information and belief, on or about November 16, 1982, a second bad faith law enforcement investigation was opened on members of the NCLC by and through-the Federal Bureau of Investigation in Baltimore, Maryland. This investiga- tion concerns the campaign finances of NCLC member and National Democratic Policy Committee backed candidate Debra H. Freeman. Freeman received 20% of the vote in her primary contest against Congresswoman Barbara Mikulski. Freeman won some precincts in working class districts and her vote was in the 40-49% range in those districts of South Baltimore. The circum- stances of this investigation also corroborate the general bad faith investigative plan communicated to Steinberg by his con- fidential sources. 50. The Baltimore Evening Sun began “investigation” of Freeman immediately after the primary campaign, subse- quently publishing a defamatory series attacking the candidate, Lyndon LaRouche and the NCLC. Many of the defamatory characterizations employed by the Evening Sun reporter were originally developed by the FBI concerning the NCLC in its 10 year “domestic security investigation” of LaRouche and the NCLC. The FBI's domestic security investigation is the subject of a lawsuit in this District, LaRouche v. Webster, 75 Civ. 6010 (MJL). The Sun articles called for immediate federal investiga- tion of Freeman, asserting in an editorial that the candidate had received too many “uninformed” votes. The FBI announced the opening of the investigation through an interview granted to the Baltimore Evening Sun. Such statements by the FBI were completely contrary to Justice Department policies concerning comment upon preliminary investigations. 51. The NCLC has moved for a preliminary injunction against this investigation in LaRouche v. Webster, 75 Civ. 6010 (MJL) and is seeking to deposition the Baltimore Evening Sun reporter who authored the series, Mark Arax, concerning his relationship with the FBI. Both the FBI and the reporter have moved to quash deposition subpoenas issued in this lawsuit. Mr. Arax is represented by Venable, Beatjer and Howard in Baltimore, the lawfirm of former Attorney General Benjamin Civiletti. Mr. Civiletti had threatened to sue the Lyndon LaRouche and indi- 4-36 viduals and organizations associated with plaintiffs for published allegations against Civiletti concerning the ABSCAM investiga- tions. Mr. Civiletti did not pursue his threat of a defamation suit. 52. On or about December 23, 1982, Robert Greenberg of the NCLC interviewed Ed Jagen of the Investigative Services Division of the Washington, D.C. Metropolitan Police Depart- ment. Detective Jagen, who works in police intelligence stated that he was involved in a federal investigation of the NCLC and Lyndon LaRouche which did and would overlap with the “Profiles of the Times” investigation. (Greenberg Affidavit. Ex- hibit “I"). This statement makes no legal sense to plaintiffs except in the context of the plan to launch repeated bad faith investigations of LaRouche and the NCLC, specified to Stein- berg by his confidential sources 53. As is set forth in the Steinberg affidavit, “Exhibit “F’ confidential sources have specified to Steinberg that the Federal Bureau of Investigation is intent upon investigating and prose- cuting the NCLC under any fabricated pretext available to that agency. To that end the FBI has initiated a program of infiltra- tion of the NCLC and entrapment and “sting” operations. These operations are to be legally justified by the FBI under new guidelines promulgated by the the Department of Justice allow- ing intrusive investigations of “dormant” “violence-prone” groups 54. Plaintiffs have previously been the targets of bad faith law enforcement investigations, harassment and other actions. These law enforcement actions were undertaken to retaliate against plaintiffs in the exercise of their rights to speech, press and association and to burden and deter plaintiffs in the exercise of those rights. 55. From 1968 through 1977 the National Caucus of Labor Committees and predecessor organizations were investigated by the FBI under the Internal Security Laws of the United States This investigation did not result in one indictment or present- ment to a Grand Jury. As is set forth in LaRouche v. Webster. 75 Civ. 6010 (MJL) S.D.N_Y., the National Caucus of Labor Committees and its members were subjected to unlawful FBI COINTELPRO tactics throughout the course of the investiga- tions 56. FBI actions against the NCLC or its members during the course of the domestic security investigation included unlawful interference in political campaigns of political candidates, direct FBI intimidation and harassment of candidates and their fami- lies, media defamations of candidates, and the funneling of derogatory information concerning candidates to their political opponents. The FBI collaborated with state officials in selective enforcement of local ordinances against NCLC political organ- izing activities. The FBI collaborated with media resources and private organizations, including the AFL-CIO, the League for Industrial Democracy and the ADL in defamation and harass- ment activities against the NCLC. The FBI encouraged and condoned physical assaults on NCLC members by terrorist or- ganizations which it characterized as rival political groups, in- cluding the Weathermen, the Revolutionary Union and the Black Panther Party. The FBI consistently monitored and acted to disrupt NCLC sources of financial support 57. As is set forth in LaRouche v. Webster, many of the media defamations against the NCLC currently in circulation were developed originally by the FBI in the course of its unlawful COINTELPRO program. These defamations are now circulated by the same media conduits and private organization sources utilized by the FBI in that unlawful program. The FBI also acted to discredit and disrupt newsgathering activities by NCLC members and the relationship between NCLC members and new sources 58. In 1980, when Lyndon LaRouche received public financ- ing in his bid for the Democratic presidential nomination, La- Rouche’s political opponents, including the ADL, the New York Times, Our Town and members of the Democratic National Committee launched a national media campaign denouncing the grant of Federal matching monies and demanding either a change in the Federal Election Campaign Act to prevent similar future occurrences or a full FEC investigation of LaRouche and his campaign committee. 4-35 59. A full two vear FEC investigation did in fact result from these demands. This investigation was finally halted by a prelim- inarv injunction in Dolbeare v. FEC, 81 Civ. 4468 (CLB) with the Court stating in its March 9, 1982 Memorandum and Order “It would be hard to imagine a more abusive visita- tion of bureaucratic power, than has already been imposed upon this relatively insignificant splinter po- litical group, as is shown by the relatively uncontro- verted facts alleged here and described, we think with some restraint, in the foregoing pages of this opinion.” 60. In 1981, the ADL, journalists associated with High Times Magazine and the National Organization for Reform of Mari- juana Law and the Chicago Sun-Times collaborated in a cam- paign to shut down the political organizing activities of the National Anti-Drug Coalition in Illinois and nationally through a bad faith and selective application of the charitable organiza- tion laws and a campaign of defamation 61. The Illinois Attorney General, without resort to the Courts, ordered towns in Illinois to ban NADC solicitation activities, following the NADC’s registration with the Attorney General and demand to the Attorney General for a formal opin- ion as to whether or not the charitable organization statutes applied to political organizations. The rationale for the Attorney General's action was that the NADC had failed to turn over financial statements concerning the first six months of its first fiscal year to the Attorney General, a requirement which is no where specified in the law. These actions of the ADL, the Chicago Sun-Times, individual journalists and the Illinois Attor- ney General are presently the subject of a lawsuit for declaratory and injunctive relief and damages in the United States District Court for the Northern District of Illinois. National Anti-Drug Coalition vs. Tyrone C. Fahner, 82C-1480). STATE COURT PROCEEDINGS 62. By Notice of Motion dated December 2, 1982, plaintiffs moved in the Supreme Court, New York County to enjoin the Grand Jury proceedings concerning “Profiles of the Times” and 4-39 to quash subpoenas issued to NCLC members on the premises of PMR Printing Company on November 16, 1952. Plaintiffs alleged that the Grand Jury proceedings were conducted in bad faith, for purposes of political harassment and that the Grand Jury lacked subject matter jurisdiction. Plaintiffs also moved for an evidentiary hearing on their claims of bad faith on December 9th, 1982 63. Nine individual members of the NCLC joined by fifteen employees of PMR Printing Company (hereinafter “the wit- nesses’) also moved in Supreme Court, New York County to quash the subpoenas on the grounds that the subpoenas were issued unlawfully under New York state statute, and in a manner which violated the Fourth Amendment rights of the witnesses In addition this motion challenged the subject matter jurisdic- tion of the Grand Jury 64. The Supreme Court, New York County, Jeffrey Atlas, J.S.C. ruled that the plaintiffs did not have standing to intervene or to quash the subpoenas issued to members of the NCLC under CPLR 1012 or CPLR 2304 and on that basis solely denied plaintiffs’ motion 65. The Supreme Court, New York County, Jeffrey Atlas, J.S.C., denied the motion by the individual witnesses to quash the subpoenas on statutory and Constitutional grounds, ruling that the method of issuing the subpoenas was appropriate. A stay on the return of these subpoenas pending application for interim relief to the Appellate Division was consented to by defendant Wilson upon the application of the attorney for these witnesses and the suggestion of Justice Atlas 66. Justice Atlas was the Justice who signed the search war- rant for PMR’s premises, and, upon information and belief, had prejudged the issues raised by the plaintiffs and the individual witnesses. 67. Plaintiffs sought an interim stay from the Appellate Divi- sion, First Department, which stay was denied. Plaintiffs appli- cation for a stay and for an expedited hearing and briefing schedule to the Appellate Division, First Department, was de- A-40 nied. Plaintiffs then moved to renew their application for an expedited hearing and briefing schedule on appeal or, in the alternative, for leave to appeal to the Court of Appeals the denial of the stay and expedited hearing and briefing schedule. This motion was also denied. Plaintiffs’ appeal of Justice Atlas’s Order denying plaintiffs standing to bring their claims under CPLR 1012 and CPLR 2304 is presently before the Appellate Division but will not be heard before the May term of the Court. 68. The motion for an interim stay by the two groups of individual witnesses subpoenaed at PMR Printing Company was granted by the Appellate Division. However, on Friday, March 11, the Appellate Division denied the motion for a stay and for an expedited hearing and briefing schedule on their appeal. This means that members of the NCLC could be called before the Grand Jury at any time, subject to the discretion of the District Attorney 69. Plaintiffs and the individuals whose rights they seek to represent have for every practical purpose exhausted state rem- edies. The appeals on these motions will not be heard and decided for a period of months. These appeals could be mooted at any time by the calling of witnesses before the Grand Jury by the District Attorney. The denials of the stays and expedited hearing and briefing requests in both appeals indicates that the Appellate Division will deny the relief requested by plaintiffs and the individual witnesses in those proceedings. 70. As is set forth in the accompanying Memorandum of Law plaintiffs have no adequate state forum in which to raise and vindicate their Constitutional claims. The only possible state remedy now available to plaintiffs is the filing of the present action in the state court rather than the Federal system, a result which has never been required by the policies of comity and federalism. Recent New York Court decisions also call into question whether or not individual witnesses can raise claims of bad faith investigation or harassment prior to participation in the very prosecution which they seek to halt or enjoin through the mechanisms provided in the State Courts. A-41 71. Plaintiffs have standing to raise constitutional claims on behalf of the political organization and on behalf of the members of the political organization. As is set forth in the accompanying affidavit of Kenneth Kronberg, a member of the National Com- mittee of the NCLC and the President of PMR Printing Com- pany (Exhibit “B”), PMR Printing Company is managed by members of the NCLC and prints all publications associated with the NCLC. Its officers are members of the NCLC. Fur- ther, the NCLC political organization is the target of the Grand Jury proceedings and is adversely affected thereby—the Consti- tutional rights of the political organization and of its members are violated by this bad faith investigation. The Supreme Court of the United States and the federal courts have held that political organizations have standing to raise Constitutional claims on behalf of their members in precisely analogous contexts. 72. Plaintiffs are without an adequate remedy at law and no application for similar relief as been made to this Court. 73. Plaintiffs are without funds to post a bond in this action. PRAYER FOR RELIEF WHEREFORE, plaintiffs respectfully pray th [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1065%3A1. Public record. Not legal advice.