Judge Alcee L. Hastings hereby appeals to the United States Court of Appeals for the Eleventh Circuit from the final order entered in this action on December 2, 1987 (Butzner, Sr. Cir. J., by designation). court below on December 2, 1987 (Butzner, Sr. Cir. J., by designation) (A. 32-34).1 By that order, Judge Butzner approved unprecedented disclosure of electronic surveillance, grand jury, and other confidential material to the Committee on the Judiciary (the "Committee") of the United States House of Representatives to Emergency Motion to Extend 1. Appendix Stay Pending Disposition of Appeal. The Appendix contains the necessary substantive documents filed in the court below. The district court resolved the case below on the basis of lists of authorities submitted and extended oral argument. In order that this court may be advised of the points raised below, a transcript of that argument is also included in the Appendix at 49-179. The page numbers for this Appendix the numbers in the upper are (the "House"). Judge Butzner stayed his order for fourteen days, until December 16, 1987, to afford Judge Hastings an opportunity to appeal and seek an extension of the stay from this court (id. and A. 34). If that stay is not extended, this court's ability to grant meaningful review might be impaired. The present appeal presents novel and important issues that fully merit plenary review. Counsel for Judge Hastings develops those issues and the reasons why the requested extension should be granted below. STATEMENT OF FACTS The Justice Department's Investigation Kevin Gordon was a zoning officer for a small municipality in Dade County, Florida (A. 2-6, 23-25). Federal prosecutors in Miami believed that he was involved in criminal activity (id). In July 1985 the prosecutors applied for authorization to tap his telephone (id.). The application was approved by Judge Hastings, as duty judge, and he thereafter received progress reports and requests for extensions (id.). On September 9, 1985, federal agents intercepted and recorded a telephone conversation between Gordon and his attorney, Richard Bonehill (A. 23-25).. In the course of that conversation Gordon described a conversation that Gordon had had with Steven Clark, the elected Mayor of Dade County (id.). Gordon told Bonehill that the Mayor had told Gordon that Judge Hastings had warned the Mayor to stay away from Gordon because Gordon was "hot" (id.). The Justice Department promptly terminated the investigation into Gordon's conduct and launched one into Judge Hastings's conduct (A. 2-6, 23-25). The Department ultimately persuaded Gordon to cooperate and used him to record a conversation with the Mayor. (id.) The Mayor reiterated his claim that the source of his information that Gordon was "hot" was Judge Hastings, but did not suggest that Judge Gordon was under surveillance Mayor Clark to submit to an Hastings had disclosed that (id.). The Department persuaded interview and thereafter used the powers of Grand Jury 86-3 ( Miami) to gather and record his testimony as well as that of an FBI agent who had participated in the investigation (id.). It is the Justice Department's use of this information that gave rise to the present action and the issues it poses. Mayor Clark testified before the grand jury in March 1986 (A. 5-6). No indictment was returned, and the Justice Department has not might properly have been Instead, the Department initially identified any ground upon which one sought (A.5-6, 23-25). 2 submitted its allegations to the judiciary, seeking actions under 2. Sources close to the investigation have indicated that the Justice Department used the grand jury knowing that there were no criminal matters to be investigated: When prosecutors decided they could not find a "U.S. Says Hastings Compromised Sting," The Miami Herald, Fri., Nov. 13, 1987. the Judicial Councils Reform and Judicial Conduct and Disability 3 Act of 1980, (the "Act"). On September 26, 1986, the Department issued a letter complaint pursuant to the Act (A. 23-25). That complaint was certified in March 1987 and is presently under investigation within the judiciary (A. 26-29). At some time Committee thereafter, the Department apparently made similar disclosures to this House, disclosures that precipitated the requests that initiated the proceedings in the court below (A. 2-6). The Committee's Ex Parte Requests On September 25, 1987, the Chairman of the Committee sent two letter requests directly to Judge Butzner in Richmond, Virginia. (A. 2-6). One asked Judge Butzner to allow the Committee to inspect and copy sealed with the electronic surveillance materials in connection and to interview a former investigated Judge prosecutor and two FBI agents who had Hastings's conduct (A. 2-4). The other asked for authorization to inspect and copy Mayor Clark's and the FBI agent's testimony before Grand Jury 86-3 and any related grand jury exhibits (A. 5-6). The Committee later reported that it obtained their approval for its requests from attorneys in the Department's Public Integrity Section (A. 7-8). The Committee did not, however, file its requests with the court below or give notice of them to Mayor Clark, attorney Bonehill, or Judge Hastings. 3. Pub. L. No. 96-458, 94 stat. 2035 (1980), codified as amended at 28 U.S.C. §§331, 332, 372(c), 604 (h) (1982 & Supp. 1984). |