Nixon v. Richey

• Decision Date: 14 February 1975
• Docket Number: No. 75-1063,75-1063
• Parties: Richard NIXON, Petitioner, v. Honorable Charles R. RICHEY, United States District Court for the District of Columbia, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 430

513 F.2d 430

168 U.S.App.D.C. 172

Richard NIXON, Petitioner, v. Honorable Charles R. RICHEY, United States District Court for the District of Columbia, Respondent.

No. 75-1063.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 1, 1975.

Decided Feb. 14, 1975.

Herbert J. Miller, Jr., Washington, D. C., argued the motion for petitioner. Raymond G. Larroca, William H. Jeffress, Jr., and R. Stan Mortenson, Washington, D. C., were on the motion for petitioner.

Irwin Goldbloom, Deputy Asst. Atty. Gen., argued for the Administrator of General Services and the United States of America. Carla A. Hills, Asst. Atty. Gen., Irving Jaffee, Deputy Asst. Atty. Gen., and Earl J. Silbert, U. S. Atty., were on the pleading filed in the cause by those parties.

Peter M. Kreindler, Counsel to the Sp. Prosecutor, Watergate Sp. Prosecution Force, for the Sp. Prosecutor as amicus curiae. Henry S. Ruth, Jr., Sp. Prosecutor, and Kenneth S. Geller, Asst. Sp. Prosecutor, were on the pleadings filed in the cause by the Sp. Prosecutor.

Robert E. Herzstein, Washington, D. C., argued for The Reporters Committee for the Freedom of the Press, and others, as amici curiae. Andrew S. Krulwich and Mark J. Spooner, Washington, D. C., were on the pleadings filed in the cause by The Reporters Committee for the Freedom of the Press, and others.

William A. Dobrovir, Washington, D. C., argued for Jack Anderson as amicus curiae. Andra N. Oakes, Washington, D. C., was on the pleadings filed in the cause by Jack Anderson.

Leon Friedman, of the bar of the Court of Appeals of New York, pro hac vice by special leave of the Court, argued for Lillian Hellman, and others as amici curiae. Melvin L. Wulf, New York City, was on the pleading filed in the cause by Lillian Hellman, and others.

Before BASTIAN, Senior Circuit Judge, and ROBINSON and WILKEY, Circuit Judges.

PER CURIAM:

Petitioner filed in this court a petition for a writ of mandamus directing a District Judge to immediately grant a pending application for a three-judge court to hear and determine a case challenging the constitutionality of an act of Congress, and instructing the judge to give that case priority over three consolidated cases pending before him as a single judge. In a prior opinion, ¹ we held that the judge had to rule on the three-judge application and had to defer the priority question to the three-judge court if convened. We denied the requested writ, however, as unnecessary to compliance with those holdings.

The judge's subsequent release of an opinion, without accompanying order, deciding the consolidated cases has prompted petitioner to seek reconsideration of our earlier refusal of a writ. A three-judge court has now been convened to initially determine whether it properly should pass on the constitutional challenge, and no further action by us is needed in that regard. Since we had, however, stayed entry of any order implementing the opinion in the consolidated cases, the present controversy relates to whether the stay should be continued.

We find that our stay must remain in effect temporarily for protection of the litigation in which the challenge is made. We leave, as we did before, resolution of the priority question for the three-judge court if it rules that it is to function in that case. Our stay will terminate when the exigencies demanding it disappear. Our reasons for these decisions follow.

I

On December 19, 1974, the Presidential Recordings and Materials Preservation Act ² became law. Title I of the Act directs the Administrator of General Services to obtain possession and control of specified tape recordings of conversations held, and other historical matter generated, during petitioner's tenure as President of the United States. ³ These the Administrator is to protect and preserve, subject to regulations to be promulgated to govern access by petitioner, governmental agencies and departments, and members of the public. ⁴ The Act also authorizes payment of just compensation upon a judicial finding that any individual has been deprived of private property by any provision of Title I. ⁵

On the day after the Act went into effect, petitioner brought an action in the District Court to enjoin its enforcement permanently on grounds that it transgressed the Federal Constitution. ⁶ At the same time, petitioner asked that a three-judge court be convened to hear and determine the constitutional claims asserted therein. ⁷ The case was assigned to the respondent District Judge, the Honorable Charles R. Richey, before whom three consolidated cases involving the presidential materials were then pending. ⁸ The contest in those cases extended to ownership of the materials and privilege against their disclosure, issues also involved in petitioner's constitutional challenge. ⁹ On January 3, 1975, petitioner moved for a preliminary injunction against operation of the Act.

During the five weeks following institution of the challenge case on December 20, petitioner on five separate occasions, we are told requested Judge Richey to initiate the statutory procedure leading to the formation of a district court of three judges. ¹⁰ The record reveals that during that period Judge Richey was preoccupied with the consolidated cases, ¹¹ and planned to complete work on them before addressing the challenge case. ¹² On January 23, 1975, Judge Richey informed counsel by letter that Due to unforeseeable circumstances, the court's opinion in the consolidated cases is not finished at this time. Until this opinion and order are finished, and the court is hopeful of having it done early next week, the court will not be able to turn its attention to the above-entitled cause. That will be the next order of business. ¹³

Late in the afternoon of January 28, petitioner filed in this court a petition for a writ of mandamus directing Judge Richey to grant the application for a three-judge court immediately and give the challenge case priority over the consolidated cases. ¹⁴ The petition called attention to Judge Richey's letter and its indication that the decision in the consolidated cases was imminent. Recognizing the possible consequence of that action upon petitioner's constitutional challenge, a matter we elucidate later, ¹⁵ we gave the matter all the expedition we could command. On January 29, we called for responses, ¹⁶ by the close of the next day. We deliberated promptly after receipt of the responses, and filed an opinion and order on the morning of January 31.

In our opinion, we concluded that Judge Richey erred in delaying action on the three-judge request ¹⁷ and in ignoring the statutory priority ¹⁸ of the challenge case. ¹⁹ We held that Judge Richey "must decide and decide now," whether to call for a three-judge court, ²⁰ stating carefully that "(w)e intimate(d) no view as to what in this regard (he) should decide." ²¹ On the matter of priority, we pointed out the danger of first deciding the consolidated cases, ²² and observed that "(t)he interests of justice would seem to require that disposition of (those) cases be held up at least until the three-judge question is put to rest." ²³ We noted specifically that "delay in the issuance of the opinion in the consolidated cases . . . should properly be settled by the three-judge court." ²⁴

Although thus concluding, and acknowledging the propriety of the mandamus remedy in the circumstances, ²⁵ we saw no occasion for issuance of a writ. "No final action on the petition at hand is necessary," we stated; ²⁶ "(w)e assume that the District Judge, now advised of the relevant law, will proceed in accordance with this opinion." ²⁷ In so doing, we adhered to a tradition inspired by a time-proven expectation that judges will perform their duties, once defined, without coercion by judicial process. ²⁸ Correspondingly, our order accompanying the opinion denied a writ of mandamus "for the reasons and on the conditions stated in the" opinion.

We would be less than frank if we failed to observe that we did not anticipate the events which were soon to follow. Our opinion and order issued at approximately 9:45 a. m. on January 31. In line with our custom in expedited cases, our clerk's office telephonically notified Judge Richey at once, and minutes later copies of the opinion and order were hand-delivered to his chambers. At mid-afternoon of the same day, petitioner's motion for reconsideration of our denial of the writ of mandamus officially informed us that an opinion by Judge Richey in the consolidated cases ²⁹ had been released at 11:00 a. m. The only explanation furnished us is that he had filed the opinion with his courtroom clerk shortly after 2:00 a. m. on that day. ³⁰

Judge Richey's opinion, a copy of which we later requested, stated that an order of even date would issue. ³¹ We acted to preserve the status quo by staying temporarily the effectiveness of any order that might have issued, and the entry of any orders in the consolidated cases. We also scheduled a special hearing on the day following, February 1, to better enable a determination as to whether the stay should be left in effect. At the hearing, we entertained argument not only for the parties to the challenge case, but also on behalf of others, as amici curiae, who are parties to the consolidated cases. We learned at the hearing that no order on Judge Richey's opinion had been entered.

Subsequent to the hearing, on February 4, Judge Richey transmitted to us a report informing that on that date he had requested the Chief Judge of this circuit to convene a three-judge court to determine initially whether the challenge case should be heard and decided by such a court. ³² On the next day, the Chief Judge designated two judges to serve with Judge Richey as the court. ³³ Thus the need for any further action on our part to activate the three-judge court machinery has disappeared. There remains, however, the question, extensively debated by the...