Operation Rescue Nat. v. U.S., C.A. No. 94-12504-MLW.
| Decision Date | 27 August 1997 |
| Docket Number | C.A. No. 94-12504-MLW. |
| Citation | 975 F.Supp. 92 |
| Parties | OPERATION RESCUE NATIONAL, Philip F. Lawler, Randall Terry d/b/a Operation Rescue, and Robert D. Jewitt d/b/a Operation Rescue, Plaintiffs, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Paul F. Galvin, Office of Paul F. Galvin, Randall Fritz, Manchester, MA, for Plaintiffs.
Roberta T. Brown, U.S. Atty's Office,Boston, MA, for Defendant.
This action arises out of statements made by Senator Edward M. Kennedy on November 15, 1993, in Boston, Massachusetts. After participating in an event to raise funds for his upcoming campaign for reelection, Senator Kennedy was questioned by the media about, among other things, the "Freedom of Access to Clinics Act" (the "Face Act" or the "Bill"), which was to be considered by the United States Senate the next day. The Bill proposed to establish federal criminal penalties and civil remedies for interfering with access to facilities providing reproductive health care, including abortions. Senator Kennedy was leading the ultimately successful effort in the Senate to have the Bill enacted. In response to a question from the media, Senator Kennedy said, in part, that the proposed legislation was needed because "we have a national organization like Operation Rescue that has as a matter of national policy firebombing and even murder ..."
Operation Rescue, an unincorporated association of individuals dedicated to opposing abortion, and some of its members, brought this action against Senator Kennedy in the Norfolk Superior Court of the Commonwealth of Massachusetts. They allege that they were each defamed by Senator Kennedy's remarks and seek damages for injury to their respective reputations.
Pursuant to provisions of the Federal Tort Claims Act (the "FTCA"), which were added in 1988 by what is known as the "Westfall Act," the United States Attorney for Massachusetts certified that Senator Kennedy was acting within the scope of his employment when he made the remarks now at issue. Accordingly, the United States Attorney removed this case to federal court, where the United States was substituted for Senator Kennedy as the defendant, as contemplated by the FTCA. Because the FTCA does not provide a remedy against the United States for libel or slander, the defendant has moved that this action now be dismissed.
Plaintiffs oppose the motion to dismiss. In addition, they have filed motions to remand to state court and to reinstate Senator Kennedy as the defendant. Plaintiffs argue that there were defects in the United States Attorney's certification process; that the substitution of the United States as the defendant was improper because the Westfall Act provisions of the FTCA do not apply to United States Senators and, in any event, because Senator Kennedy was not acting within the scope of his employment when he made his remarks regarding Operation Rescue; and that the application of the FTCA to immunize Senator Kennedy from liability for defamation would violate several provisions of the United States Constitution, particularly the Speech or Debate Clause, Art. I, § 6.
The court has held two hearings and carefully considered the parties' contentions, including the merits of plaintiffs' claim that if the Westfall Act protects members of Congress it is unconstitutional as applied — an issue that evidently has not been addressed previously by any court. For the reasons described in detail in this Memorandum, the court concludes as follows.
Operation Rescue has standing to maintain this case, although the individual plaintiffs may not. See § IV.A. Any alleged defects in the process utilized by the United States Attorney in deciding to certify that Senator Kennedy made his remarks concerning Operation Rescue while acting within the scope of his employment are not relevant. The remedy for any such error is the de novo review of the scope of employment issue by this court that plaintiffs have received. See § IV.D.
Senators are protected by the Westfall Act for alleged wrongs committed within the scope of their employment. See § IV.E. As described earlier, Senator Kennedy made the remarks about Operation Rescue alleged to be defamatory in response to a question from the media regarding proposed legislation he was leading the effort to enact. His remarks about Operation Rescue were made, at least in part, to inform the public of the reasons for his position on a legislative matter. Making such statements is one of a Senator's official duties. In acting on a motion to dismiss the court must view the record in the light most favorable to plaintiffs and give them the benefit of all reasonable inferences in their favor. Therefore, the court assumes for present purposes that the Senator's remarks were also motivated in some measure by a desire to promote his personal popularity, and thus enhance his ability to raise campaign funds and win votes. In our electoral system, however, such public and personal motives are essentially inseparable because it is natural for public officials to believe that their own success, and that of their political parties, are inextricably linked to the public interest. It is not necessary or appropriate for the court to attempt to determine the predominant motive for Senator Kennedy's remarks about Operation Rescue. Under Massachusetts law, which governs on this issue, Senator Kennedy's conduct may be deemed to be outside the scope of his employment only if he acted from purely personal motives that were in no way connected to his official duties. This is not such a case. See § IV.F.
Accordingly, the Westfall Act provides Senator Kennedy immunity for his remarks regarding Operation Rescue unless that statute is unconstitutional as applied to a United States Senator. Plaintiffs assert primarily that the Speech or Debate Clause of the Constitution, which provides immunity for a Senator's conduct while in Congress, prohibits a legislative expansion of that protection. That contention, however, is incorrect. The Westfall Act is not unconstitutional by virtue of the Speech of Debate Clause or for any other reason. See § IV.G.
The Constitution vests in Congress the power to legislate and the authority to enact laws it deems "necessary and proper" to facilitate the exercise of that power. Since Chief Justice John Marshall's seminal decision in M'Culloch v. Maryland, 17 U.S. (4 Wheat) 316, 4 L.Ed. 579 (1819), the Necessary and Proper Clause of the Constitution has been interpreted expansively. Courts traditionally uphold legislation that reasonably relates to one of the federal powers established by the Constitution, unless that legislation violates the Bill of Rights or some other specific restriction expressly included, or clearly implied, in the Constitution.
It was reasonable for Congress to conclude that more extensive immunity for Senators and Representatives than the protection provided by the Speech or Debate Clause is now needed to facilitate its power to legislate. Prior to the Westfall Act, members of Congress were required to defend suits for statements criticizing what they viewed as wasteful public spending, among others. As the Supreme Court recently reiterated in Clinton v. Jones, ___ U.S. ___, ___, 117 S.Ct. 1636, 1643, 137 L.Ed.2d 945 (1997), in cases involving prosecutors, legislators, and judges, the Court has repeatedly held that providing immunity to such officials for actions relating to their governmental responsibilities serves the public interest by encouraging them to perform in a principled fashion, uninhibited by the fear that some candid statement or other action will generate expensive litigation and, perhaps, personal liability. The Westfall Act also serves this purpose and is, therefore, reasonable.
Congress' power to expand the immunity provided by the Constitution for its members is not restricted by the Speech or Debate Clause. That provision does not expressly limit the power vested in Congress by the Necessary and Proper Clause to decide the most appropriate scope of legislative immunity today. Nor is such a prohibition implicitly manifest in the Speech or Debate Clause, which, for example, is not located in the prohibitions on legislative authority enumerated in Article I, § 9. Accordingly, because the Constitution does not place any special restriction on Congress' power to expand the immunity of its members, and because it was reasonable for Congress to exercise that authority by enacting the Westfall Act, plaintiffs have failed to prove that statute is unconstitutional as applied in this case.
Therefore, plaintiffs' motions to remand are being denied and defendant's motion to dismiss is being allowed. While this means that plaintiffs have no legal remedy for the wrong they allege that they have suffered, it does not mean that there is no means of holding Senator Kennedy and his colleagues in Congress accountable for defamatory remarks that they may make.
This case has required the court to reflect upon the current implications of first principles. In deciding it, the court is reminded that primary among these is the fundamental fact that our government derives its power from the people. This means, among other things, that Senators and Representatives must command the confidence of their constituents if they wish to retain their offices. Knowledge of this generally restrains the actions of members of Congress, even in an absence of the threat of a successful law suit for their actions. If plaintiffs wish to persist in their effort to redress the harm that they believe Senator Kennedy wrongly inflicted on them, they may appeal to the ultimate source of accountability in our democracy — they may appeal to the fairness of a free people and compete with Senator Kennedy for their verdict.1
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