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08/23/79 Le Roy B. Jones, Et Al., v. Unknown Agents of the

August 23, 1979

LE ROY B. JONES, ET AL., APPELLANTS

v.

UNKNOWN AGENTS OF THE FEDERAL ELECTION COMMISSION, ET AL., APPELLEES 1979.CDC.158 DATE DECIDED: AUGUST 23, 1979



Before McGOWAN and TAMM, Circuit Judges, and JUNE L. GREEN,* District Judge.

UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 77-0732).

APPELLATE PANEL:

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCGOWAN

This is an appeal from an order of the District Court dismissing a suit in which appellants the United States Labor Party , the Committee to Elect Lyndon La Rouche , and ten individuals who contributed to CTEL in 1976 (individual appellants) sought damages and injunctive relief against appellees, the Federal Election Commission (Commission) and various members of its staff. *fn1 The suit was filed after the Commission concluded, on the basis of field interviews with CTEL contributors (including nine of the ten individual appellants), that Lyndon La Rouche, a candidate for the 1976 Presidential nomination of the USLP, had not raised the requisite amount of contributions to qualify for matching funds under the Presidential Primary Matching Payment Account Act (Act), 26 U.S.C. §§ 9031-9042 (1976).

In the District Court, appellants asserted numerous constitutional, statutory, and common law claims arising out of both (1) the fact that the Commission conducted field interviews at all, and (2) the manner in which the interviews were conducted and the scope of the questions asked. The District Court, finding merit in none of these claims, denied injunctive relief and granted appellees' motion for summary judgment.

On appeal, appellants renew their allegations, with particular emphasis on their statutory, first amendment, and fourth amendment claims. Our task is to determine whether, on a reading of the record most favorable to appellants, appellees were entitled to a judgment as a matter of law. For reasons stated below, we conclude that the District Court erred in granting summary judgment with regard to (1) appellants' statutory claim that the Commission is not empowered to inquire during field interviews into issues bearing no relation at all to the subject matter of an otherwise legitimate investigation into a candidate's eligibility to receive primary matching funds, and (2) appellant Jones' fourth amendment claim that he was subjected to a warrantless seizure of certain financial documents and bank records. In all other respects, we affirm the decision under review. I

On October 14, 1976, Lyndon La Rouche wrote the Commission requesting primary matching funds for his campaign for the USLP Presidential nomination. One of the eligibility requirements for such funds is that a candidate "certify" that he has received in excess of $5000 in contributions of $250 or less in each of at least 20 states. 26 U.S.C. § 9033(b)(3)-(4) (1976). For these purposes, the Act defines the term "contribution" as a "gift of money made by a written instrument which identifies the person making the contribution by full name and mailing address." Id. § 9034(a). La Rouche, in support of his application, submitted a notarized statement that he had raised the requisite amount, but provided no documentation of his contributions. Pursuant to inquiries by the Commission staff, CTEL, La Rouche's principal campaign committee, later submitted a computer printout listing contributions in excess of the threshold. But, once again, the Commission received no underlying documentation of the contributions.

On November 4, 1976, the Commission authorized its staff to conduct a field audit in order to verify La Rouche's eligibility for matching funds. That audit, which took place shortly thereafter at CTEL's headquarters in New York City, revealed that CTEL had in its possession written instruments evidencing campaign contributions in excess of the threshold amount in 18 states and that, with the submission as promised of certain additional documentation, it would soon cross the threshold in two more states, Connecticut and Indiana. But, in addition to this soon to be corrected shortfall, the audit uncovered many instances where contributions made by money order or cashier's checks raised substantial questions as to whether the contributions were in fact made by residents of the states indicated. *fn2

The audit also revealed a pattern of heavy last-minute contributions from persons listing their occupation as that of "volunteer coordinator" for the National Caucus of Labor Committees , an organization that, during the last two weeks of the eligibility period, received payments from CTEL of more than $310,000. *fn3 It further indicated that CTEL shared office space and common personnel with NCLC and three other organizations (New Solidarity International Press Service, Inc., Campaigner Publications, Inc., and the United States Labor Party) and that those organizations accounted for 78% Of CTEL's expenditures and 97% Of its debt. These findings seemed particularly significant in light of the fact that CTEL had surpassed the $5,000 threshold by only a narrow margin in at least several states.

On the basis of these findings, the Commission staff recommended, by memorandum of December 27, 1976, that the audit be expanded to include the four organizations closely related to CTEL and that individual CTEL contributors be interviewed to verify their contributions. The memorandum was initialed by, among others, defendants Potter, Steele, and Stoltz. At its meeting on December 29, 1976, the Commission voted to expand the audit to include the related organizations.

On January 13, 1977, the staff indicated by memorandum to the Commission that, absent objection, it was prepared to begin confirming contributions by means of field interviews with CTEL contributors. This memorandum was initialed by defendants Costa, Potter, Oldaker, Steele, and Stoltz. On January 14, 1977, after five Commissioners had returned the memorandum and the sixth had not objected, the Secretary of the Commission certified that the staff recommendation had been adopted. The Commission staff, on January 21, 1977, notified CTEL that its contributors soon would be approached for direct verification of their contributions.

During the week of January 26, 1977, six of the Commission's agents including defendants Allen, Dougherty, Sims, Vance, and Yowell *fn4 either did, or attempted to, interview listed contributors (including the ten individual appellants) *fn5 in three states, Delaware, Massachusetts, and Wisconsin. They obtained the names and addresses of these individuals from the information CTEL had submitted in support of La Rouche's application for primary matching funds. In six cases (appellants Ford, Wayne and Nancy Hintz, Jones, Mazaris, and Toppin), the individuals received personal visits at their homes; in one case (appellant Park), the interviewee was visited at his place of work; and in two cases (appellants Chaplin and Dallas), the interviews were by telephone. Three appellants, Chaplin, Nancy Hintz, and Park, stated that they did not wish to talk, and the agents desisted.

One appellant who spoke at some length during his interview was Le Roy Jones. That interview, according to Jones, *fn6 proceeded as follows: Shortly after 7:45 on the morning of January 26, 1977, Jones was awakened by his wife who indicated that she had just answered a knock at their door and that two agents of the Commission wanted to speak with him. Jones went downstairs. One of the agents, who identified himself as Vance and produced his Commission identification badge, asked Jones how much money he had contributed to CTEL and wanted to know the source of the funds.

Jones apparently indicated that he had given at least some money to CTEL, for Vance then asked to see the cancelled checks and inquired when they had been written. When Jones responded that he did not think that he had either bit of information on hand, Vance replied in "an extremely threatening tone" that:

If you don't give me the exact information I asked for you cpuld (Sic) get sentenced up to 10 years in jail and be given a $10,000 fine . . . you've got a nice house here, you wouldn't want to lose it would you?

A. 30-31. Thereafter, Jones, upon searching his records for thirty minutes, turned over to Vance his tax returns and a cancelled check documenting a contribution to CTEL.

Vance is then said to have asked Jones numerous questions about his political affiliations and beliefs, but Jones does not allege that he responded. The questioning next turned to how the USLP raised its money and who its contributors were, and Jones answered these questions to the best of his ability. Then Vance, once again stating the possible sanctions if Jones refused, asked Jones to reveal the bank account numbers of Jones' personal account and that of the USLP and further "demanded" Jones to sign a statement permitting the agents to inspect his bank records. Jones, "in great fear," signed the statements. Finally, Vance questioned Jones in some detail regarding his activities in the USLP and who paid his expenses, though again Jones does not allege that he responded.

At 9:15 A.M., Vance and his partner departed, leaving behind a business card in case Jones or his wife wanted to change their story. Both Jones and his wife, it is asserted, "felt thoroughly intimidated and in fear of loss of security and property were (they) not to comply with Mr. Vance's questions." A. 32. In fact, as a result of the tension experienced during the interview, Jones, a 59-year-old retiree who had had more than twelve heart attacks, later made a special visit to his doctor. During that visit, the doctor took an electrocardiogram for precaution and changed Jones' prescription. *fn7

The results of the field interviews revealed that in neither Delaware nor Wisconsin had La Rouche raised the threshold amount of $5000 or more in contributions of $250 or less. Thus, even though CTEL had submitted, on February 2, 1977, documentation that according to the initial audit would have established La Rouche's compliance with the threshold in the last of twenty states, the Commission, on February 10, 1977, rejected La Rouche's application for primary matching funds on the ground that he had not met the fundraising threshold of section 9033(b)(3)-(4). It is that determination that we today affirm in No. 77-1184.

On April 28, 1977, appellants filed this action in the District Court, seeking various forms of declaratory and injunctive relief and damages. *fn8 The complaint named as defendants the Commission and ten individuals, including the five staff members who initialed the memorandum seeking authorization for the field interviews and five of the six investigators who conducted the interviews. The complaint also named as defendants "unknown agents of the Federal Election Commission." *fn9 Appellants' principal allegations were that the field interviews of CTEL contributors were unauthorized by statute and violative of the first and fourth amendments. *fn10

Before the District Court had taken any action in the instant case, the Commission, upon reviewing both the results of the inquiry into La Rouche's eligibility for matching funds and various reports of contributions and expenditures required to be filed with the Commission pursuant to 2 U.S.C. § 434, determined that there was reason to believe that the USLP, CTEL, and the other related organizations had violated certain provisions of the federal elections laws in connection with the La Rouche campaign. The Commission by letter notified each organization that it was under investigation and explained the suspected statutory violations. The letter to CTEL indicated that, Inter alia, there was reason to believe the CTEL had violated 26 U.S.C. Section 9042(c)(1) by making false statements in its submissions for matching funds. In furtherance of the Commission's investigation into this matter, agents of the Commission began, on or before July 14, 1977, interviewing additional CTEL contributors in the state of Indiana to verify their contributions to the La Rouche campaign.

On June 24, 1977, appellants moved for a temporary restraining order and, in the alternative, for a preliminary injunction, seeking to enjoin the Commission from conducting further personal interviews with contributors to CTEL as part of its continued investigation. The District Court denied appellants' motion.

On July 18, 1977, appellees moved to dismiss the complaint and, in the alternative, for summary judgment. The grounds for this motion were, Inter alia, that the field interviews were within the Commission's statutory authority and that appellants had failed to state a claim against the individual appellees upon which relief could be ...


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