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HON YIP v. PAGANO

April 26, 1985

HON YIP a/k/a YIP HON, Plaintiff,
v.
CLINTON L. PAGANO, Defendant



The opinion of the court was delivered by: COHEN

 COHEN, District Judge:

 This defamation action is presently before the Court on the motion of defendant, Colonel Clinton L. Pagano, Superintendent of New Jersey State Police, for summary judgment pursuant to Fed. R. Civ. P. 56(b). Prior to ruling on this motion, however, we must consider the requests put forth by the Leadership Group of the United States House of Representatives Committee on the Judiciary (the Leadership Group) *fn1" to appear as amicus curiae in this matter and to have the Court waive Local Rule 4(C) which would require that out of state attorneys be admitted pro hac vice and appear with local counsel. United States District Court, District of New Jersey General Rule 4(C).

 I

 This action arises from remarks made by defendant, Colonel Pagano, in his opening statement before the House Subcommittee on Crime (Subcommittee) which, on February 10, 1984, conducted a hearing in Atlantic City, New Jersey concerning the alleged use of casinos to launder profits realized by alleged organized crime members and drug traffickers. In his opening remarks defendant stated that Hon Yip, plaintiff herein, was an alleged international drug smuggler who had laundered nearly $ 400,000 in two Atlantic City casinos. *fn2"

 On July 26, 1984 plaintiff instituted the instant action in which he seeks $ 70,000,000.00 in compensatory damages and $ 10,000,000.00 in punitive damages. As the sole basis for the present motion, defendant maintains that statements made before a legislative body are absolutely privileged provided they regard a subject properly within that body's jurisdiction and have some relation to legitimate legislative business. Due to the potential impact that our decision may have on the principles governing the testimony of Congressional witnesses, the Leadership Group seeks the Court's permission to appear as amicus curiae. DefendaNt has submitted a letter brief in support of this request; *fn3" plaintiff has submitted a brief in opposition.

 II

 At the trial level, where issues of fact as well as law predominate, the aid of amicus curiae may be less appropriate than at the appellate level where such participation has become standard procedure. Accordingly, "the privilege to be heard as an amicus curiae rests within the discretion of the court [which] may grant or refuse leave, according as it deems the proffered information timely and useful or otherwise." 3A C.J.S. Amicus Curiae § 3 (1973). See Leigh v. Engle, 535 F. Supp. 418 (N.D.Ill.E.D. 1982). Leigh involved a request by the Secretary of Labor to participate in that matter as amicus curiae. There, the court denied the request for two reasons. First, it noted that the Secretary's position was more accurately termed a friend of the plaintiff than a friend of the court. Second, the court expressed its legitimate concern that a grant of the Secretary's request after more than three years of proceedings, of which he had been aware, would cause delay in further consideration of the matter. Such is not the case here. Plaintiff filed his action in July of 1984, less than seven months prior to the Leadership Group's request. With the exception of the summary judgment motion presently before us, there have been very few proceedings to date. In opposing the Leadership Group's motion, plaintiff relies on Casey v. Male, 63 N.J. Super. 255, 164 A.2d 374 (Essex County Ct. 1960), wherein the Publishers Bureau of New Jersey and the New Jersey Press Association were denied permission to appear as amici because they sought to assume an advocatory rather than advisory role. "Where a petitioner's attitude toward the litigation is patently partisan, he should not be allowed to appear as amicus curiae." Id. at 259.

 Casey, however, is readily distinguishable from the case at bar. In Casey, the groups seeking to appear as amici represented business interests which would be ultimately and directly affected by the court's ruling on the substantive matter before it. Here, however, the Leadership Group will only be indirectly affected by our ruling on the substantive issue of witness immunity. The Leadership Group's interest in this matter is nonetheless compelling due to the need of the legislative branch of government to readily obtain information in aid of its law making function. Any ruling by this Court limiting the scope of this immunity will affect the ability of Congress to obtain adequate information in an efficient manner. For example, were we to conclude that only statements made by a witness who had been subpoenaed to testify would be within the immunity, Congress would likely be forced to subpoena all of its witnesses, a cumbersome procedure, or rely on information from fewer witnesses. As a result, the goal of formulating legislation on a well informed basis would be impaired.

 The brief proffered by the Leadership Group, although in parts adversarial, nonetheless presents a helpful analysis of the law of legislative immunities and of the functions and procedures of Congressional committees. We do not find that those aspects of the Leadership Group's brief which advocate defendant's position so taint it as to outweigh its usefulness. Cf. Keenan v. Board of Chosen Freeholders of Essex Cty., 106 N.J. Super. 312, 255 A.2d 786 (App. Div. 1969) (expression of opinion as to appropriate outcome by amicus curiae is proper). Therefore, we shall allow the Leadership Group to appear as amicus curiae on defendant's motion for summary judgment. As amicus curiae is counsel to the United States House of Representatives, a coordinate branch of the government, we shall waive the requirements of Local Rule 4(C). See United States District Court, District of New Jersey General Rule 4(F) (allowing appearance by attorneys for the United States).

 III

 Fed. R. Civ. P. 56(c) provides that summary judgment will be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The moving party bears the burden of demonstrating that there is clearly no genuine issue of fact and all doubts will be resolved against him. Adickes v. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1969); Janek v. Celebrezze, 336 F.2d 828, 834 (3d Cir. 1964). Once a movant has supported his motion with affidavits or with other evidence as permitted under Fed. R. Civ. P. 56, the party opposing the motion must adduce "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e).

 In support of his motion, defendant contends that "statements made before a legislative body on a subject properly within its jurisdiction and with some relation to legitimate legislative business are absolutely privileged." Defendant's Brief at p. 6.

 A

 Plaintiff concedes that the absolute privilege noted above exists in the common law of many jurisdictions. We must first consider, however, whether we should apply an absolute privilege under federal or state common law. Only two cases have been published recently dealing with Congressional witness immunity. In the first, Bio/Basics International Corp. v. Ortho Pharmaceutical Corp., 545 F. Supp. 1106 (S.D.N.Y. 1982), the district judge thoroughly considered the various requirements for the creation of a federal common law and concluded that the issue of immunity was best determined under state law principles. In the other, Webster v. Sun Company, Inc., 235 U.S. App. D.C. 154, 731 F.2d 1 (D.C. Cir. 1984), neither the court of appeals nor the district court considered the issue of federal versus state common law. The district judge ...


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