553 F.2d 1277 (C.D. Cir. 1976), 73-1991, McSurely v. McClellan

Docket Nº:73-1991.
Citation:553 F.2d 1277
Party Name:Alan McSURELY and Margaret McSurely v. John J. McCLELLAN et al., Appellants.
Case Date:December 21, 1976
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 1277

553 F.2d 1277 (C.D. Cir. 1976)

Alan McSURELY and Margaret McSurely


John J. McCLELLAN et al., Appellants.

No. 73-1991.

United States Court of Appeals, District of Columbia Circuit

December 21, 1976

Argued en banc April 19, 1976.

Page 1278

[Copyrighted Material Omitted]

Page 1279

Irwin Goldbloom, Atty., Dept. of Justice, Washington, D.C., with whom Carla A. Hills, Asst. Atty. Gen., Washington, D.C. at the time the reply brief was filed, Irving Jaffe, Acting Asst. Atty. Gen., Washington, D.C. at the time the opening brief was filed, Robert E. Kopp, David J. Anderson and Raymond D. Battocchi, Atty., Dept. of Justice, Washington, D.C., were on the brief for appellants. Morton Hollander and Judith S. Feigin, Attys., Dept. of Justice, Washington, D.C., also entered appearances for appellants.

Morton Stavis, Newark, N.J., with whom Nancy Stearns, New York City, and Charles N. Mason, Jr., Washington, D.C., were on the brief for appellees.

Page 1280

Before BAZELON, Chief Judge, DANAHER, Senior Circuit Judge, WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges, sitting en banc.


In August 1967, Kentucky officials, executing warrants issued under a state sedition statute, arrested plaintiffs (appellees) and seized books and papers from their home. Plaintiffs obtained a federal court ruling on September 14, 1967, declaring the state statute unconstitutional, enjoining prosecution, and ordering that the seized materials in the custody of the state prosecutor continue to be held by him in safekeeping until final disposition of the case. See McSurely v. Ratliff, 282 F.Supp. 848 (E.D.Ky.1967).

This appeal involves the claim that the transportation and use of the seized materials subsequent to September 14, 1967, by the chairman of the Senate subcommittee and several members of the subcommittee staff (federal defendants) violated the constitutional and other rights of the McSurelys.

These federal defendants appeal from the District Court's denial of their motion, for dismissal or summary judgment, which they based on the immunity provided by the Speech or Debate Clause of the Constitution, Art. I, § 6, cl. 1.

iThis court, en banc, enters these orders: (1) Reverses the District Court's failure to grant the motion of the federal defendants to dismiss that part of the complaint relating to the original taking of the McSurelys' books and papers by the Kentucky authorities. (2) Reverses with directions to grant summary judgment to appellants on those parts of the complaint that complain of the alleged use made of the documents within Congress, since such use is protected by the Speech or Debate Clause. (3) Affirms the District Court, with remand for further proceedings, on the claim as to alleged dissemination of some of the documents outside of Congress. (4) Affirms by an equally divided vote, the District Court's denial of summary judgment on the allegations concerning the action of subcommittee investigator Brick in inspecting the documents and transporting copies of some of them to Washington prior to issuance of a subcommittee subpoena.

The case is remanded for further proceedings not inconsistent with these opinions.

Opinions filed by: (a) Circuit Judge Leventhal for a majority of the court en banc as to items (1), (2) and (3) above; and for himself and Chief Judge Bazelon, and Circuit Judges Wright, McGowan and Robinson, for affirmance as to item (4). (b) Circuit Judge Wilkey, for himself, Senior Circuit Judge Danaher, and Circuit Judges Tamm, MacKinnon and Robb, for reversal as to item (4). (c) Senior Circuit Judge Danaher, joined by Circuit Judges, Tamm, MacKinnon and Robb for dismissal of the complaint.

LEVENTHAL, Circuit Judge:

This appeal is from a District Court order entered on June 12, 1973, in an action by Alan and Margaret McSurely against Honorable John L. McClellan, Jerome S. Adlerman, Donald F. O'Donnell, and John Brick, then the Chairman, General Counsel, Chief Counsel and Investigator, respectively of the Permanent Subcommittee on Investigation of the United States Senate Committee on Government Operations (hereinafter Subcommittee); and Thomas B. Ratliff, then Commonwealth Attorney for Pike County, Kentucky. 1 The plaintiffs, appellees here, seek compensatory and punitive damages from each defendant for alleged

Page 1281

violations of their rights under 42 U.S.C. §§ 1981, 1983, and 1985, and under the First, Fourth, Fifth and Fourteenth Amendments of the Constitution. 2 These are claimed to arise from individual actions and a conspiracy of defendants to harass, stigmatize, and intimidate plaintiffs through the appropriation and use of materials taken from their home in an unlawful search by Kentucky agents on August 11, 1967. The District Court's order denied a motion of defendants McClellan, Adlerman, O'Donnell and Brick (hereinafter federal defendants) to dismiss or for summary judgment, and allowed the suit to proceed. Defendant Ratliff did not join the motion and is not a party to this appeal. 3

The federal defendants argue in their appeal that further proceedings would violate their right under the Speech or Debate Clause of the Constitution 4 not to be questioned outside of Congress for their legislative acts, and that the use in a congressional investigation by defendant Senator and his aides of documents unlawfully seized by others was not barred by the Fourth Amendment.

A panel of this court in an opinion rendered October 28, 1975, one judge dissenting in part, reversed the District Court as to some of the claims in the complaint and remanded for further development "certain disputed issues which conceivably might show plaintiffs to have a cause of action." 5 By an order issued February 10, 1976, this court, en banc, granted appellees' suggestion for rehearing en banc and vacated the decision of the panel. Oral argument before the full court was held on April 19, 1976.


    The factual background of this case has been developed extensively in other decisions of this court. 6 To aid present consideration, we review briefly the facts pertinent to this appeal, drawing generously on the outline of facts in the panel decision. 7

    In 1967 Alan and Margaret McSurely were organizers for the Southern Conference Educational Fund, Inc., in Pike County, Kentucky. Alan McSurely was also affiliated with the National Conference of New Politics and Vietnam Summer, both unincorporated associations. On the night of August 11, 1967, following issuance of an arrest warrant charging Alan McSurely with seditious activities against the Commonwealth of Kentucky in violation of KRS 432.040 and a search warrant calling for a seizure of seditious material, officials of Pike County arrested both the McSurelys

    Page 1282

    and seized a large volume of books, posters, pamphlets and other materials found in their home.

    On September 14, 1967, in response to a complaint filed by the McSurelys, a three-judge district court, for the Eastern District of Kentucky, found the Kentucky sedition statute facially unconstitutional, on grounds of First Amendment overbreadth and vagueness and federal preemption, and enjoined state prosecution of the McSurelys under the authority of Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). 8 In its order, the court directed Thomas B. Ratliff, Commonwealth Attorney for Pike County, to hold in safekeeping the seized materials, pending possible appeal of the court's decision to the Supreme Court. 9 Shortly thereafter, Lavern Duffy, Assistant Counsel to the Subcommittee, telephoned Ratliff to inquire about the seized items. 10 In a stipulation entered into after the three-judge court decision, counsel for the McSurelys and the United States agreed that "(t)he aforesaid telephone call represented the only contact" between Duffy and Ratliff. 11

    As a result of the Duffy call, on October 8, 1967, John Brick, an investigator for the Subcommittee, traveled to Pikeville. After Ratliff confirmed that the seized materials contained information relating to activities of organizations in which the Subcommittee was interested, Brick examined photocopies of 234 documents delivered to his Pikeville motel room by Thadeus Scott, a Commonwealth Detective. The following morning, October 9, Scott drove Brick to the Pike County Court House, where Scott's assistant, Herman Dotson, opened a locked door to the walk-in vault room in the Commonwealth Attorney's office which housed the originals of the seized materials. After examining these documents, Brick proceeded to the United States Post Office in Pikeville, where he inspected the file of three-judge court action, asking for copies of the September 14 order and the inventory of seized items. On October 12, Brick returned to Pike County Court House, where, again accompanied by Scott and Dotson he reexamined the seized materials for four hours and, according to a stipulation agreed to by the McSurelys' counsel, for the first time took notes of the contents of the documents. 12 Apparently, Brick was provided with copies of 234 of the documents, which he took with him on his return to Washington. 13

    On October 16, 1967, at Senator McClellan's direction, Brick prepared subpoenas duces tecum for certain of the McSurely materials in Ratliff's possession which the Senator had determined would be relevant to the Subcommittee investigation of the April, 1967 riot in Nashville, Tennessee. Plaintiffs filed motions with the three-judge court to prevent Ratliff from releasing the seized materials to the Subcommittee

    Page 1283

    and to direct him to return the documents to them. Considerable litigation ensued, culminating in a decision by the Court of Appeals for the Sixth Circuit, on July...

To continue reading