Miller v. Transamerican Press, Inc.

• Decision Date: 24 June 1983
• Docket Number: 82-5585,Nos. 82-5539,s. 82-5539
• Citation: 709 F.2d 524
• Parties: 13 Fed. R. Evid. Serv. 1233 Murray W. MILLER, Plaintiff, Appellant, Cross-Appellee, v. TRANSAMERICAN PRESS, INC., et al., Defendants, Appellees, Cross-Appellants, and Sam Steiger, Deponent, Appellee, Cross-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 524

709 F.2d 524

13 Fed. R. Evid. Serv. 1233

Murray W. MILLER, Plaintiff, Appellant, Cross-Appellee, v. TRANSAMERICAN PRESS, INC., et al., Defendants, Appellees,

Cross-Appellants,

and

Sam Steiger, Deponent, Appellee, Cross-Appellee.

Nos. 82-5539, 82-5585.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted March 15, 1983.

Decided June 24, 1983.

Charles L. Babcock, Jackson, Walker, Winstead, Cantwell & Miller, Dallas, Tex., for Transamerican Press.

Glynn W. Gilcrease, Jr., Tempe, Ariz., for Murray W. Miller.

Appeal from the United States District Court for the District of Arizona.

Before WRIGHT, CANBY, and BOOCHEVER, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

This is an appeal from an order denying a motion to compel a deponent's testimony. The major issue is whether a nonparty former Congressman may invoke the speech or debate privilege as to questions about material he inserted into the Congressional Record.

FACTS

An article appeared in the June 1972 issue of Overdrive Magazine implying that Miller, a union pension fund trustee, had misappropriated funds. In 1973, he filed a libel suit against Transamerican Press and others, the publishers of Overdrive ("Transamerican"), in Texas federal court.

Shortly after the article appeared, then-Congressman Steiger of Arizona inserted it in the Congressional Record. See 118 Cong.Rec. 27,401-03 (1972). Steiger was not named a defendant in Miller's lawsuit.

In Arizona in 1981, Miller served former Congressman Steiger with a subpoena duces tecum for a deposition. After counsel for the parties assembled for the deposition, Steiger announced that he would not attend.

Miller asked the Arizona federal court to hold Steiger in contempt for not answering the subpoena. Both parties sought reimbursement from Steiger for their expenses in the frustrated effort to take the deposition. Transamerican alternatively sought reimbursement from Miller, arguing that the subpoena served on Steiger was defective. After a hearing, the court denied the contempt motion but ordered Steiger to appear for deposition.

At the deposition, Steiger claimed the speech or debate privilege for most questions asked or proposed. Miller's counsel adjourned and moved to compel his answers. The court denied the motion, holding that Steiger had properly invoked the privilege. ¹

Miller appealed. Transamerican moved to amend the judgment to include a ruling on its request for expenses for the first scheduled deposition. The court ordered the judgment "amended to reflect that the court denied defendants' motion for sanctions." Transamerican had anticipated this with a cross-appeal.

JURISDICTION

Transamerican has moved to dismiss the appeals. ² A notice of appeal is jurisdictionally ineffective if filed before disposition of a Rule 59(e) motion to alter or amend the judgment. Griggs v. Provident Consumer Discount Co., --- U.S. ----, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982). Neither party filed a new notice of appeal after disposition of the postjudgment motion.

Though Transamerican styled its motion a Rule 59(e) motion, "nomenclature is not controlling." Sea Ranch Association v. California Coastal Zone Conservation Comm'ns, 537 F.2d 1058, 1061 (9th Cir.1976). The court will construe it, however styled, to be the type proper for the relief requested. See Whittaker v. Whittaker Corp., 639 F.2d 516, 520 (9th Cir.), cert. denied, 454 U.S. 1031, 102 S.Ct. 566, 70 L.Ed.2d 473 (1981).

The history of Rule 59(e) shows that "alter or amend" means a substantive change of mind by the court. Boaz v. Mutual Life Insurance Co. of New York, 146 F.2d 321 (8th Cir.1944), cited in Rule 59(e) advisory committee note; see also White v. New Hampshire Dep't of Employment Security, 455 U.S. 445, 450-51, 102 S.Ct. 1162, 1165-66, 71 L.Ed.2d 325 (1982); Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 674 F.2d 1252, 1260 (9th Cir.1982).

In contrast, a court's failure to memorialize part of its decision is a clerical error. See Allied Materials Corp. v. Superior Products Co., 620 F.2d 224, 226 (10th Cir.1980); Eaton v. Capps, 348 F.Supp. 237, 240 (M.D.Ala.1972) aff'd, 480 F.2d 1021 (5th Cir.1973). Power to correct clerical errors of omission derives from Rule 60, Barkeij v. Ford Motor Co., 230 F.2d 729, 730 (9th Cir.1956), not Rule 59(e). See Rule 60(a). Unlike a Rule 59(e) motion, a Rule 60 motion does not affect the validity of a previously filed notice of appeal. See Fed.R.App.P. 4(a)(4); Fed.R.Civ.P. 60.

Miller argues that Transamerican's postjudgment motion is properly characterized as a Rule 60 motion. He contends that the expense request was subsumed in the order denying contempt against Steiger, and the amendment to the judgment is an entry nunc pro tunc reflecting that the request was previously denied.

We have on occasion equated a request for an entry nunc pro tunc with a Rule 60(a) motion, Barkeij v. Ford Motor Co., 230 F.2d at 730; Matanuska Valley Lines, Inc. v. Neal, 229 F.2d 136, 138 (9th Cir.1955), and construed a purported Rule 59(e) motion as a Rule 60(a) motion when the district court's response was to conform the written judgment to the partly tacit intention of its oral ruling. Huey v. Teledyne, Inc., 608 F.2d 1234, 1237 (9th Cir.1979), cert. denied, --- U.S. ----, 102 S.Ct. 3484, 73 L.Ed.2d 1367 (1982).

The language of the amendment supports Miller's construction of the motion as invoking relief under Rule 60(a), not Rule 59(e).

It did not destroy the pending notices of appeal or our jurisdiction.

SPEECH OR DEBATE PRIVILEGE

The Constitution, art. I, Sec. 6, cl. 1, provides: "[F]or any Speech or Debate in either House [Senators and Representatives] shall not be questioned in any other Place." Miller seeks to question Steiger on his recognition of the article he inserted in the Congressional Record, how it came to his attention, his legislative purpose in inserting it, his subsequent dissemination of it outside Congress, and aides he employed at the time who might know of Transamerican's instigation of the Congressional publication.

Scope and Purpose of Privilege

The privilege is rooted in the separation-of-powers doctrine. Its " 'central role' ... is to 'prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary.' " Eastland v. United States Servicemen's Fund, 421 U.S. 491, 502, 95 S.Ct. 1813, 1821, 44 L.Ed.2d 324 (1975).

The speech or debate privilege has been broadly construed. Id. 421 U.S. at 501, 511, 95 S.Ct. at 1820, 1825. Recent cases have, however, cut back on the potentially broad sweep of the clause, as to activities protected and protection of nonlegislator Congressional employees. Hutchinson v. Proxmire, 443 U.S. 111, 126-29, 99 S.Ct. 2675, 2683-85, 61 L.Ed.2d 411 (1979); Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973); Gravel v. United States, 408 U.S. 606, 620, 625, 92 S.Ct. 2614, 2624, 2627, 33 L.Ed.2d 583 (1972); United States v. Brewster, 408 U.S. 501, 512-17, 92 S.Ct. 2531, 2537-40, 33 L.Ed.2d 507 (1972). Protection should not extend beyond what is necessary to accomplish the purposes of the clause. Id. 408 U.S. at 517, 92 S.Ct. at 2540.

Miller would have us restrict it further. He urges us to allow questions because traditional reasons for applying the privilege are absent.

In some Supreme Court cases, the legislator faced possible criminal liability. The "predomina[nt] thrust" of the clause is to forestall retaliatory criminal charges against critical legislators. United States v. Johnson, 383 U.S. 169, 180-82, 86 S.Ct. 749, 755-56, 15 L.Ed.2d 681 (1966). It applies to former Congressmen. See United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972).

In civil cases, the Court applied the privilege to prevent distraction from legislative duties, obstruction of ongoing legislative activity, or the burden of defense from civil liability. See Eastland, 421 U.S. at 503, 511, 95 S.Ct. at 1821, 1825.

Steiger is merely a witness in this lawsuit. He cannot become a defendant because the statute of limitation has run. At his deposition, he emphasized that he was "not concerned about personal jeopardy," and the "accountability" rationale is inapplicable. Because he is no longer in office, the rationale of preventing distraction from legislative duties is not applicable either. Nor is the suit challenging or obstructing ongoing legislative activity.

However, the privilege also protects freedom of speech in the legislative forum. ³ See Gravel, 408 U.S. at 616, 92 S.Ct. at 2622; Johnson, 383 U.S. at 182 & n. 12, 86 S.Ct. at 756 & n. 12. When members are acting within the "legitimate legislative sphere," the privilege is an "absolute bar to interference." Eastland, 421 U.S. at 503, 95 S.Ct. at 1821. Any questioning about legislative acts, even in Steiger's situation, would "interfere" by having a chilling effect on Congressional freedom of speech.

The Supreme Court has referred to "the absoluteness of the phrase 'shall not be questioned,' and the sweep of the term 'in Lower courts have disregarded the absence of liability or of current legislative tasks when applying the privilege. Tavoulareas v. Piro, 93 F.R.D. 11, 18-19 (D.D.C.1981) (Congressional staff as nonparty deponents in libel suit); Dickey v. CBS, Inc., 387 F.Supp. 1332, 1336 (E.D.Pa.1975) (ex-Congressman nonparty to libel suit); Smith v. Crown Publishers, Inc., 14 F.R.D. 514 (D.C.N.Y.1953) (Congresswoman plaintiff in libel action). None has compelled testimony about legislative acts.

                any other Place.' "    Id.  The Court has said that Congressmen "may not be made to answer--either in terms of questions or in terms of defending himself from prosecution" regarding legislative acts.   Gravel, 408 U.S. at 616, 92 S.Ct. at 2622.  (emphasis supplied)
                

We conclude that the clause means what it says. Steiger "shall not be questioned" on matters to which the privilege applies. His present status...