Dellinger v. Mitchell

• Decision Date: 16 February 1971
• Docket Number: No. 23931.,23931.
• Parties: David DELLINGER et al., Appellants, v. John N. MITCHELL, Attorney General of the United States, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

442 F.2d 782 (1971)

David DELLINGER et al., Appellants, v. John N. MITCHELL, Attorney General of the United States, et al.

No. 23931.

United States Court of Appeals, District of Columbia Circuit.

Argued December 9, 1970.

Decided February 16, 1971.

Mr. Herman Schwarz, Buffalo, N. Y., of the bar of the United States District Court for the District of Columbia, pro hac vice, by special leave of Court, with whom Messrs. Melvin L. Wulf, William M. Kunstler, New York City, and Lawrence Speiser, Washington, D. C., were on the brief, for appellants.

Mr. George W. Calhoun, Atty., Department of Justice, for appellees. Asst. Atty. Gen. J. Walter Yeagley at the time the brief was filed and Mr. Robert L. Keuch, Atty., Department of Justice, were on the brief, for appellees. Mrs. Lee B. Anderson and Mr. Kevin T. Maroney, Attys., Department of Justice, also entered appearances for appellees.

Before McGOWAN and LEVENTHAL, Circuit Judges, and GORDON,^* U.S. District Judge for the Eastern District of Wisconsin.

LEVENTHAL, Circuit Judge:

Plaintiffs appeal from an order staying all proceedings in this civil action until ten days after final termination of a related criminal case. We are of the view that the stay order as issued exceeded the proper exercise of authority of the District Court and remand for further proceedings.

I. The Facts

The plaintiffs in this case are eight individuals¹ and nine organizations.² The individuals were defendants on trial in United States v. Dellinger et al., Criminal No. 69-180 (N.D.Ill.), the "Chicago Trial" that attracted nationwide attention and which is hereinafter referred to as "the criminal case." During the pre-trial proceedings in the criminal case defendants moved for disclosure of any electronic surveillances involving them. The Government filed an answer which admitted that certain of the defendants had been overheard during the course of electronic surveillance. No warrant or judicial order had been obtained for such surveillance. The Government answer asserted that the electronic surveillance was lawful even in the absence of judicial authorization since the President, acting through the Attorney General, has constitutional power as the Chief Executive to utilize electronic surveillance to gather intelligence information deemed vital to the national security, and specifically to gather intelligence information concerning domestic organizations which seek to attack and subvert the government by unlawful means, free from any judicial supervision or statutory limitation.

On June 26, 1969, the plaintiffs filed this action against the Attorney General and the Director of the Federal Bureau of Investigation for damages and for declaratory, injunctive and other appropriate relief. Plaintiffs sought a declaration that the surveillance policies announced by the Attorney General were invalid, and an injunction prohibiting electronic surveillance of the plaintiffs and the class they represent³ and any further implementation of the policies announced by the Attorney General. On information and belief derived from the Government memorandum and affidavit in the criminal case and from sworn testimony by F.B.I. agents in United States v. Clay, Crim.No. 67-H-94 (S.D.Tex.) aff'd 430 F.2d 165 (5th Cir. 1970), cert. granted, 400 U.S. 990, 91 S.Ct. 457, 27 L.Ed.2d 438 (Jan. 11, 1971), admitting electronic surveillance of the late Martin Luther King, Jr. and of Elijah Muhammad, plaintiffs alleged that they had been and were being subjected to unlawful electronic surveillance.⁴

Plaintiffs alleged that such electronic surveillance of them and others similarly situated has impaired and will continue to seriously impair their lawful and constitutionally protected anti-war and civil rights activities, violates their constitutional right guaranteed by the First Amendment to speak freely and to organize and assemble for political purposes, and constitutes a continuing violation of and interference with their rights under the Fourth and Ninth Amendments. Plaintiffs claim that defendants' practices violate 18 U.S.C. § 2510 et seq. (Supp. V, 1965-69) and, insofar as wiretapping prior to June 10, 1968, is concerned, 47 U.S.C. § 605 (1964), as well as 42 U.S.C. § 1983 (1964).

Thereafter, plaintiffs served notices for depositions of defendants and others, interrogatories and requests for admissions. On August 15, 1969, defendants moved to stay all proceedings in this action on the ground that it was initiated to circumvent the rulings limiting pretrial discovery in the criminal case. They also alleged: "Moreover, necessarily most of the more important factual issues with respect to electronic surveillances in both the criminal case and the subsequently filed civil case are identical."

On December 2, 1969, the District Court entered its stay order. The order recited that the court found that "the issues here and the issues in the criminal case are so overlapping, so repeated in one case and in the other, that the interests of justice will best be served by granting the motion of the defendants." The court ordered that all pending and further proceedings in this civil action be stayed "until ten (10) days after entry by this Court of an order vacating this stay on the motion of any party to this action based on the final termination in the trial and appellate courts, including the United States Supreme Court, of all issues relating to electronic surveillances in the now pending case of United States of America v. David T. Dellinger, et al., Criminal No. 69-180 (U.S.D.C.N.D.Ill., E.D.)." Plaintiffs appealed.⁵

II. Impropriety of Stay Order Issued by the District Court

This appeal does not present occasion to decide the merits of the civil action brought by plaintiffs or of any defense that may be interposed by the defendants in their answer. We therefore do not consider so much of the Government's brief as contends that plaintiffs' constitutional rights have not been infringed, except to say that the questions raised are not insubstantial. Compare United States v. Smith, 321 F.Supp. 424 (C.D.Cal. Jan. 8, 1971); United States v. Sinclair, 321 F.Supp. 1074 (E.D.Mich. Jan. 26, 1971).

The central question is the propriety of an ongoing order which suspends plaintiffs' action entirely until final completion, including ultimate appellate disposition, of the criminal case pending against some of the plaintiffs.

The District Court's order has operated since inception to stay this civil action by nine organizations who were not defendants in the criminal case, although they are described as having participated in various enterprises with the eight plaintiffs who were criminal defendants.

It further appears that this order has operated since February, 1970, to stay this civil action as to three individual plaintiffs whose connection with the criminal case was ended by the time of verdict.⁶ This information is taken into account though relating to matters arising subsequent to the order. Since the information is undisputed there is no occasion to insist on a formal motion to supplement the record. Moreover the possibility of such outcome was or should have been in the contemplation of the District Court when the order was issued.

The Government's motion for stay presented its concern that this civil action represented an effort to circumvent orders in the criminal case which limited pretrial discovery by defendants in the criminal case. The supporting affidavit also pointed out the difficulties involved in duplication of witnesses. It was further alleged: "If the civil case is stayed, these conflicts can be avoided, and it is possible that upon completion of the criminal trial, many of the related issues in the civil case can be stipulated between the parties."

These considerations, it may be assumed, justified an order staying the civil case until completion of the trial of the criminal case. But they present no justification for a stay that (a) is applicable to civil plaintiffs who are not criminal defendants, and (b) persists until completion of all appellate and remand proceedings. The trial phase of the criminal case has come to an end but the appellate and remand phases may go on for years. The case will apparently be argued to the Circuit Court of Appeals for the Seventh Circuit in the spring of 1971. But its subsequent decision may lead to review by the Supreme Court. If there should be a reversal and remand, the time span of the delay and stay embraced by the District Court order may come to embrace a new trial and appeals.

The applicable jurisprudence appears in Landis v. North America Co., 299 U. S. 248, 57 S.Ct. 163, 81 L.Ed. 153 (1936), which considered an order staying all proceedings in a suit brought by two holding companies to restrain enforcement of the Holding Company Act, pending final (including appellate) disposition of another suit, then pending in another District Court, brought by the SEC to compel enforcement.

Various pronouncements in the Landis opinion seem to us pertinent. They are:

1. A court has inherent power to stay proceedings in control of its docket, — after balancing the competing interests.⁷

2. "The suppliant for a stay must make out a clear case of hardship or inequity in being required to go forward, if there is even a fair possibility that the stay for which he prays will work damage to some one else. Only in rare circumstances will a litigant in one cause be compelled to stand aside while a litigant in another settles the rule of law that will define the rights of both." 299 U.S. at 255, 57 S.Ct. at 166.

3. "Especially in cases of extraordinary public moment, the individual may be required to submit to delay not immoderate in extent and not oppressive in its consequences if the public welfare or convenience will thereby be promoted." 299 U.S. at 256, 57 S.Ct. at 166. This justified a stay pending the District Court determination in the other suit — in view of...