McSurely v. McClellan

• Decision Date: 25 June 1970
• Docket Number: No. 73-1991,73-1991
• Citation: 172 U.S.App.D.C. 364,521 F.2d 1024
• Parties: Alan McSURELY and Margaret McSurely v. John J. McCLELLAN et al., Appellants. . Argued 26 Nov. 1974. Decided 28 Oct. 1975. Raymond D. Battocci, Atty., Dept. of Justice, with whom Carla A. Hills, Asst. Atty. Gen., Irving Jaffe, Acting Asst. Atty. Gen., Robert E. Kopp, Irwin Goldbloom and Daniel J. Anderson, Attys., Dept. of Justice, were on the brief for appellants. Morton Stavis, Newark, N. J., with whom Nancy Stearns and Daniel Crystal, Paterson, N. J., were on the brief for appellee. Before DANAHER, Senior Circuit Judge, and LEVENTHAL and WILKEY, Circuit Judges. Opinion for the Court filed by Circuit Judge WILKEY. Opinion filed by Circuit Judge LEVENTHAL, concurring in part and dissenting in part. WILKEY, Circuit Judge: This appeal is from an order entered on 12 June 1973 by the District Court in an action brought by Alan and Margaret McSurely against Senator John L. McClellan and three of his aides in their individual capacity. 1 The plaintiffs' (appellees') suit seeks damages of $800,000 for alleged violations of their constitutional rights arising from the defendants' (appellants') use of materials taken from the home of the plaintiffs in an unlawful search and seizure by agents of the Commonwealth of Kentucky on 11 August 1967. 2 The District Court's order denied the defendants' motion to dismiss or for summary judgment, and allowed the suit to proceed over the defendants' objections. Those objections, now made the principal points on appeal, are that further proceedings would violate defendants' right under the Speech or Debate Clause of the Constitution 3 not to be questioned outside Congress for their legislative acts, and that the use in a Congressional investigation by the defendant Senator and his committee aides of documents unlawfully seized by others was not barred by the Fourth Amendment. On these legal issues we largely agree with the defendants and therefore reverse the District Court; we remand, however, for the determination of certain disputed fa
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1024

521 F.2d 1024

172 U.S.App.D.C. 364

Alan McSURELY and Margaret McSurely v. John J. McCLELLAN et al., Appellants.

No. 73-1991.

United States Court of Appeals District of Columbia Circuit.

Argued 26 Nov. 1974.

Decided 28 Oct. 1975.

Raymond D. Battocci, Atty., Dept. of Justice, with whom Carla A. Hills, Asst. Atty. Gen., Irving Jaffe, Acting Asst. Atty. Gen., Robert E. Kopp, Irwin Goldbloom and Daniel J. Anderson, Attys., Dept. of Justice, were on the brief for appellants.

Morton Stavis, Newark, N. J., with whom Nancy Stearns and Daniel Crystal, Paterson, N. J., were on the brief for appellee.

Before DANAHER, Senior Circuit Judge, and LEVENTHAL and WILKEY, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKEY.

Opinion filed by Circuit Judge LEVENTHAL, concurring in part and dissenting in part.

WILKEY, Circuit Judge:

This appeal is from an order entered on 12 June 1973 by the District Court in an action brought by Alan and Margaret McSurely against Senator John L. McClellan and three of his aides in their individual capacity. ¹ The plaintiffs' (appellees') suit seeks damages of $800,000 for alleged violations of their constitutional rights arising from the defendants' (appellants') use of materials taken from the home of the plaintiffs in an unlawful search and seizure by agents of the Commonwealth of Kentucky on 11 August 1967. ² The District Court's order denied the defendants' motion to dismiss or for summary judgment, and allowed the suit to proceed over the defendants' objections.

Those objections, now made the principal points on appeal, are that further proceedings would violate defendants' right under the Speech or Debate Clause of the Constitution ³ not to be questioned outside Congress for their legislative acts, and that the use in a Congressional investigation by the defendant Senator and his committee aides of documents unlawfully seized by others was not barred by the Fourth Amendment. On these legal issues we largely agree with the defendants and therefore reverse the District Court; we remand, however, for the determination of certain disputed factual issues which conceivably might show plaintiffs to have a cause of action.

I. Factual Background

Reference is made to this court's earlier opinions in United States v. McSurely ⁴ and McSurely v. McClellan ⁵ for a detailed exposition of the factual background of this lawsuit. In brief, in 1967 Alan and Margaret McSurely were field organizers for the Southern Conference Educational Fund, Inc., in Pike County, Kentucky. Alan McSurely was also connected with the National Conference of New Politics and Vietnam Summer, both unincorporated associations. On the night of 11 August 1967, under authority of a warrant charging seditious activities against the Commonwealth of Kentucky in violation of KRS 432.040, officials of Pike County arrested the McSurelys and seized a large volume of books, posters, pamphlets, and other private and published documents found in their home.

On 14 September 1967, in response to a complaint filed by the McSurelys, a three-judge District Court in Kentucky held KRS 432.040 facially unconstitutional and enjoined state prosecution of the McSurelys. ⁶ In its order the court directed the Commonwealth Attorney for Pike County, Thomas B. Ratliff, to hold in safekeeping the materials taken from the McSurelys' house, pending his possible appeal of the court's decision. Shortly thereafter, the Assistant Counsel to the Permanent Subcommittee on Investigations ("Subcommittee") of the Senate Committee on Government Operations ("Committee"), Lavern Duffy, contacted Ratliff by telephone to inquire about the seized items. Ratliff had previously made a public announcement that the materials would be made available to Congressional committees.

As a result of the Duffy telephone call, in early October 1967 John Brick, a Subcommittee investigator, visited Ratliff in Pikeville. After confirming with Ratliff that the McSurely material contained information relating to the activities of a number of organizations in which the Subcommittee was interested, Brick examined and made notes on the seized items. In addition, he was provided with copies of 234 of the documents, which he took with him on his return to Washington. Subsequently, on 16 October 1967, at the direction of Senator McClellan, Chairman of the Subcommittee, Brick prepared subpoenas for certain of the McSurely materials in Ratliff's possession which the Senator had determined would be of value to the Subcommittee investigation of riots which occurred in Nashville, Tennessee, in April 1967.

When the plaintiffs received the subpoenas, they filed motions with the three-judge court seeking orders blocking Ratliff from releasing the seized materials to the Subcommittee and directing him to return those materials to the McSurelys. This action culminated in a decision by the Sixth Circuit Court of Appeals in July 1968 that the documents must be returned to the McSurelys, but without prejudice to the right of the Subcommittee to proceed with the enforcement of its subpoenas. ⁷ The lower court thereupon directed Ratliff to return all of the seized materials on 8 November 1968. On the same day the McSurelys received the xerox copies of 234 documents which Brick had taken with him to Washington.

Upon receipt of these materials the McSurelys were immediately served with new Subcommittee subpoenas similar to the original ones. They appeared before the Subcommittee on 4 March 1969, but refused to produce the subpoenaed materials. Pursuant to a Senate resolution, the McSurelys were indicted for contempt of Congress on 29 August 1969; they were tried and convicted on 20 June 1970. On appeal, however, this court reversed that conviction. ⁸ The majority ⁹ of the court took the position that the exclusionary rule applied to proceedings before Congressional committees as well as to criminal prosecutions and, therefore, the Subcommittee's subpoenas were invalid as the fruit of an unlawful search and seizure.

The lawsuit from which the instant appeal derives was originally filed on the same day, 4 March 1969, that the McSurelys appeared before the Subcommittee. It was substantially modified by the plaintiffs in May 1971 when they sought and received permission to file an amended and substituted complaint. The defendants filed a motion to dismiss or for summary judgment which was heard and submitted for decision on 28 October 1971. When the Supreme Court decided Gravel v. United States, ¹⁰ and United States v. Brewster, ¹¹ the parties submitted supplemental memoranda analyzing the relationship of those decisions to this case. On 12 June 1973 the District Court entered a one-sentence order denying defendants' motion. The defendants then moved for reconsideration of the Court's order or certification under 28 U.S.C. § 1292(b) of the issue of their official immunity based in part upon the Supreme Court's recent decision in Doe v. McMillan. ¹² The Court denied this motion on 9 July 1973. This appeal followed.

II. Jurisdiction

Before discussing the substantive validity of the District Court's order denying defendants' motion to dismiss or for summary judgment, we must determine whether this court has jurisdiction to review that order. Normally a denial of a motion for summary judgment is not appealable. ¹³ That is, it does not qualify as a "final decision" for the purposes of 28 U.S.C. § 1291. ¹⁴ The Supreme Court, however, has repeatedly emphasized that section 1291 must be given a "practical rather than a technical construction." ¹⁵ If the order of the District Court in this case has "sufficient indicia of finality," it is appealable even though it is not a decision which ends the action. ¹⁶

We have already had occasion to apply this principle in the instant case, although to a different order of the District Court. ¹⁷ That order of 18 December 1969 denied a motion made by the plaintiffs to stay pending the resolution of this civil action the criminal contempt proceedings which had been instituted against the McSurelys for their failure to comply with the Senate Subcommittee's subpoenas. (Significantly, the complaint in this case at that time included a prayer for preliminary and permanent injunctions to bar a prosecution for contempt.) When the McSurelys appealed the District Court's order, the Government argued to this court that we had no jurisdiction under section 1291 to review that ruling. We responded:

At the core of the appellants' complaint is the claim that their rights will be irretrievably lost if the McSurelys are forced to trial on the criminal charges, regardless of the outcome. If the claim of a right to be free from prosecution is not determined before the criminal trials take place, it will be for all practical purposes lost.

In sum, the court found the District Court's order sufficiently determinative of the McSurelys' constitutional claim to render the order a "final decision" on its merits. Significantly, we made clear that the jurisdictional issue raised by the appeal was separate from the question of the substantive validity of the McSurelys' contention:

Our conclusion that the order involved is appealable in view of the nature of appellants' claims is not undercut by the fact that we do not adopt such of their contentions as we find open in the present posture of the case. Appellants present the claim that they will be subject to constitutional injury no matter what the course of events in the criminal proceeding. We have jurisdiction to consider that claim, even though we conclude, as will appear, that the criminal proceeding can be conducted so as to avoid trampling on appellants' constitutional rights. ¹⁹

The constitutional claim made by the defendants in the instant appeal, arising from the District Court's denial of their motion for summary judgment, is based upon the clause providing that "for any Speech or Debate in either House, they ...