Elson v. Bowen, 5438
| Decision Date | 20 December 1967 |
| Docket Number | No. 5438,5438 |
| Parties | Dean ELSON, Robert Lee, M. B. Parker, James Moreland and Arthur Barrett, Petitioners, v. Grant L. BOWEN, District Judge, Eighth Judicial District Court of the State of Nevada, In and For the County of Clark, Respondent. |
| Court | Nevada Supreme Court |
Edwin L. Weisl, Jr., Asst. Atty. Gen., Carl Eardley, Acting Asst. Atty. Gen., Joseph L. Ward, U.S. Atty., for D. Nevada, Julien G. Sourwine, Asst. U.S. Atty. for D. Nevada, Alan S. Rosenthal, and Robert V. Zener, Dept. of Justice, Washington, D.C., for appellant.
Jones & Jones, Las Vegas, Peter R. Taft, Thomas A. Wadden, Jr., Washington, D.C., Bryant R. Burton and Adrian P. Marshall, Beverly Hills, Cal. for respondent.
Three lawsuits were brought to recover damages arising out of allegedly illegal electronic surveillance of conversations at hotels in Las Vegas constituting invasion of privacy and violation of Sec. 6, Chapter 242, Stats. of Nevada, 1957. (Cf. Fowler v. Southern Bell Tel. & Tel. Co., 343 F.2d 150 (5th Cir. 1965).) That statute, NRS 200.650, provides:
There is a provision in the statute which allows the obtaining of a court order for monitoring which in these cases was not done. NRS 200.660.
In two of the actions, A--28155 and A--28157, the defendants are the Central Telephone Company and/or certain employees of that company. In the third action, A--28156, the defendants are F.B.I. agents Elson, Lee, Barker, Moreland and Barrett, who are alleged to have performed with others the actual 'bugging.' Edward Levinson and Fremont Hotel, Inc., are the plaintiffs in this and Case No. A--28155. Case No. A--28157 is a class action brought by John Grandi on behalf of all telephone company subscribers. The issue presented before this court applies to all of the actions and is solely confined to the plaintiffs' efforts to secure information from agent Elson at the taking of his deposition. Elson and the other agents were instructed by the Attorney General of the United States not to answer the material allegations of the complaints because the answers would reveal privileged information. They were also instructed by the Attorney General not to give certain information in depositions for the same reason. These orders were in accordance with the exercise of executive privilege and Department of Justice Order No. 324--64 (now 385--67 (12 C.F.R., Sec. 16.11 through 16.14)). 1 We direct our attention to the order of the trial court which granted plaintiffs' motions to compel Elson to testify, struck the incomplete answer of the defendants, and required production of certain material sought by plaintiffs' subpoena duces tecum for in camera inspection. The F.B.I. agents petitioned this court for a writ of prohibition to prevent the court below from compelling them to produce official documents, to give depositions, and to file pleadings concerning them in violation of the instructions of the U.S. Attorney General and regulations of the U.S. Justice Department and the Attorney General's exercise of executive privilege.
The common law of evidence has long recognized certain rules of privilege which authorize the withholding of pertinent facts in a judicial proceeding. United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953). One of these is said to apply to government secrets, but that one is subject to the requirement that the government has the duty in seeing that justice is done. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); Carrow, Governmental Nondisclosure in Judicial Proceedings, 107 U.Pa.L.Rev. 166 (1958).
Of the numerous authorities relating to the question of discovery from governmental agents and agencies none directly involve the seeking of information from the agents who are parties in the litigation and whose alleged illegal activities are the subject of the lawsuit. That is our situation here. Elson, the F.B.I. agent, had refused to testify at his deposition on the grounds that the Attorney General forbade him to answer the questions and ordered that he refuse to produce the documents and to file an answer pursuant to departmental order and the claim of executive privilege. He and the other agents are defendants in the lawsuit. By stipulation, whatever in the proceedings relate to Elson applies to the other agents since he was the agent in charge.
At a first deposition, the Attorney General of the United States, as head of the Department of Justice, by affidavit instructed Elson not to answer certain selected questions basing his instruction on executive privilege and Departmental Order No. 324--64. At a later deposition, after the Attorney General had read the first, Elson was permitted to answer some of the questions, but not all.
Elson's attorneys, who are attorneys in the Department of Justice, seek to prevent Elson from being compelled to testify after he recited the Attorney General's exercise of executive privilege and the departmental order. At the trial court hearing they submitted to the trial judge the logs and summaries of the conversations illegally monitored. The respondent plaintiffs acknowledged they had no right to examine the intra-departmental files and memoranda of the Department of Justice. In fact, they specifically excluded these from their subpoena duces tecum.
Because some information was known about the electronic surveillance of the F.B.I. agents, Levinson wanted depositions concerning all of it as it pertained to these cases. He hoped to learn from Elson, who was the agent in charge, the identities, methods, locations, and other relevant information toward that end, and this is what Elson refused to tell.
Elson acknowledges the right of judicial examination of the executive privilege, but contends that he need not testify in spite of a court order to the contrary if his executive head commands him not to do so. See Ex parte Sackett, 74 F.2d 922 (9th Cir. 1935); North Carolina v. Carr, 264 F.Supp. 75 (W.D.N.C.1967).
1. Judicial review is appropriate when the claim of executive privilege or the right under departmental orders are exercised. United States v. Reynolds, supra; Campbell v. Eastland, 307 F.2d 478 (5th Cir. 1962); Appeal of U.S. Securities & Exchange Com'n., 226 F.2d 501 (6th Cir. 1955); N.L.R.B. v. Capitol Fish Co., 294 F.2d 868 (5th Cir. 1961).
We cannot perceive the reason for the Attorney General's order silencing the agent. The massive eavesdropping program became a matter of public knowledge after a former agent of the F.B.I. admitted that he gave an interview to the New York Times detailing the department's eavesdropping program, news articles to the same effect appeared in Life Magazine and in leading newspapers with wide circulation, and in Kolod v. United States, 371 F.2d 983 (10th Cir. 1967), and United States v. Baker, 262 F.Supp. 657 (D.D.C.1966), F.B.I. agents testified extensively of their eavesdropping tactics which included the subject matter that led to this lawsuit. The Solicitor General of the United States also advised the U.S. Supreme Court of the F.B.I. use of listening devices. Black v. United States, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed. 26 (1966).
Nevertheless, petitioners urge that Boske v. Comingore, 177 U.S. 459, 20 S.Ct. 701, 44 L.Ed. 846 (1900), and United States ex rel. Touhy v. Ragen, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417 (1951), prevent trial courts from compelling government agents to reveal by testimony or production of documents agency information when forbidden to do so by executive order. We are not in accord with their broad construction of those two cases. Boske is confined to the declaration that departmental regulations which centralize the authority of department records upon the department head and not his subordinates are valid. Touhy extends the claim of executive privilege and department centralized responsibility to come within the discretion of the department head, such as the Attorney General who is the department head of the Department of Justice. The case refers to production of papers--makes no reference to oral testimony. Particularly as expressed by Justice Frankfurter in his concurring opinion, Touhy also stands as a forerunner for the proposition that the exercise of the executive's discretion can be judicially reviewed. The right of that judicial review is conclusively established in United States v. Reynolds, supra. (See also Roberts v. United States, 389 U.S. 18, 88 S.Ct. 1, 19 L.Ed.2d 18 ()
Without lawful sanction (NRS 200.660, supra), eavesdropping is an intrusion into a constitutionally protected area, the right of privacy, a violation of the 4th and 14th Amendments. Berger v. State of New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). By its very nature its practice places an invisible policeman in every bedroom. Douglas, J., concurring opinion, Berger v. State of New York, supra, page 64, 87 S.Ct. page...
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State ex rel. Tidvall v. Eighth Judicial Dist. Court, In and For Clark County
...a constitutional reference to a privilege, but rather the 'President's generalized interest in confidentiality'. See Elson v. District Court, 83 Nev. 515, 436 P.2d 12 (1967). Here we are not concerned with the balance between a public interest and the need for relevant evidence in civil lit......