author: GETZENDANNER, District Judge:

text:
    ALLIANCE TO END REPRESSION, et al., Plaintiffs, v. CITY OF CHICAGO, et al., Defendants.
    No. 74 C 3268.
    United States District Court, N.D. Illinois, E.D.
    Dec. 30, 1985.

      Richard Gutman, Chicago, Ill., for plaintiffs.
    Peter Fitzpatrick, Sp. Asst. Corp. Counsel, Chicago, Ill., for defendants.
   MEMORANDUM OPINION AND ORDER

GETZENDANNER, District Judge:

This civil rights action, brought under 42 U.S.C. § 1983, presents the question of whether the first amendment permits local police authorities to infiltrate, observe, ■record, and disseminate information gathered on the lawful speech activities of private individuals and private organizations when the police have no reasonable suspicion of criminal conduct. This question is now before the court on cross motions for summary judgment.

The moving plaintiffs are the only remaining named plaintiffs in this historic civil rights litigation. The class claims were resolved through a consent decree entered in 1981 and the claims of all other named plaintiffs have been resolved through settlements. The court’s decision on the cross motions for summary judgment will end this litigation because the parties have agreed to settlement of any successful claim and all parties have agreed not to appeal this decision.

I. Background and Factual Summary

The parties have stipulated to the following material facts as to which there is no genuine dispute: Plaintiff Alliance to End Repression (“Alliance”) is a civil liberties organization that seeks what it deems to be reforms in the criminal justice system of Chicago. Plaintiff Chicago Peace Council (“CPC”) is a peace organization which advocates positions on peace issues and organizes demonstrations regarding United States foreign policy. Plaintiff William Hogan, a Roman Catholic priest, plaintiff Lucy Montgomery, a retired social worker, and plaintiff A.A. (Sammy) Rayner, Jr., a former Chicago alderman, are all United States citizens who in the past have actively exercised their first amendment rights. There is no evidence in the record that any of the plaintiffs conducted, or ever planned on conducting any violent or otherwise unlawful activity. Plaintiffs indicate that if the case were brought to trial, they would testify that their activities were always lawful. The only defendant in this case is the City of Chicago (“City”); claims against individual members of the Chicago Police Department have been settled and dismissed. The actions complained of in this case are deemed to have been done under color of state law and represent the official policy of the City of Chicago.

Plaintiffs, it is agreed, were the subjects of investigations carried out by a unit of the Chicago Police Department, the explicit purpose of which was to gather intelligence on non-criminal activity. The unit has been variously known as the Subversive Activities Section, the Subversive Activities Unit, and the Security Section. This unit investigated, without any reasonable suspicion of criminal conduct, the admittedly lawful activities of plaintiffs relating to their political speech and associations. The investigations were conducted by a variety of means. Among the more striking examples was the use of certain organization infiltrators. Specifically, some of the information accumulated on CPC was obtained by means of an informer who became CPC’s treasurer and participated in the CPC decision-making process. Information was obtained on Alliance by means of an informer and an undercover agent, both of whom became Alliance board members and who participated in the Alliance decision-making process. More generally, a sizea-ble amount of information on the two organizations was obtained from newspaper clippings and clippings from other public sources of information. Intelligence was also gathered from various other informers whose level of infiltration or association with the plaintiffs is not specified. Finally, photographing, filming, videotaping and recording of plaintiffs’ activities were also techniques employed in acquiring information. One such instance occurred when CPC, along with other groups, rented the grounds of a summer camp one weekend for a conference on nonviolent ways to “end war, racism, and repression.” The police set up equipment opposite the camp and took photographs of all who were present at the conference.

Similarly, information gathered on the three individual plaintiffs was also obtained through the techniques of informer interviews, newspaper ■ clippings and photographs. There does not, however, appear to be any evidence that the informers were (or were not) specifically recruited by the police to duplicitously befriend the individuals and obtain their confidence. Finally, there is no evidence that any of the five plaintiffs were electronically surveilled, wiretapped, or photographed in their homes or other private enclaves.

The various forms of information thus obtained were filed and recorded in police dossiers on each of the plaintiffs. These dossiers are extensive. There are 13 volumes of reports on Alliance, 1,760 reports on CPC, 499 reports on Hogan, 220 on Montgomery, and 513 on Rayner. The contents of these reports include the identities of many members of the CPC and Alliance, what was discussed at meetings, and who made particular comments during the discussions. The reports on the individual plaintiffs contain the identities of their political associates and numerous other details of their public and personal lives.

The parties agree that the police department maintained a policy, directed against Alliance, which sought to “neutralize” and “nullify” its political influence, financial organization and support, and operational activities. The parties also have stipulated that as a result of the surveillance of CPC at the summer camp, a reporter who “accompanied” the police to the camp published a newspaper story in the Chicago Tribune which stated that “radicals” and “Communists” had used the property for a “secret revolutionary planning session.” There is evidence, the parties agree, that a Security Section police officer, an undercover officer, and an informer testified inaccurately before the Senate Internal Security Subcommittee that Alliance was a “Communist Party front group.” Alliance and CPC have indicated that, if the case were tried, they would testify that these statements were false and have injured their reputations. All five plaintiffs have indicated that they would testify that the entire surveillance operation has chilled their exercise of first amendment rights.

One year after this lawsuit was filed, the subversive unit of the Chicago Police Department was abolished. In 1981, the defendant City of Chicago agreed to a permanent injunction. Alliance to End Repression v. Chicago, 561 F.Supp. 537 (N.D.Ill.1982), rev’d on other grounds, 742 F.2d 1007 (7th Cir.1984). Consent decrees were also signed with the federal defendants. Alliance to End Repression v. Chicago, 91 F.R.D. 182 (N.D.Ill.1982). The only remaining issue in this case is the constitutional validity of the police department’s tactics with respect to the five remaining plaintiffs.

II. Justiciability

Before the merits of the plaintiffs’ claim can be decided the court must first address the defendant’s argument that, under the authority of Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972), the plaintiffs have no standing to bring this claim because it is nonjusticiable. Only if the plaintiffs can establish that their injury is justiciable can this court then undertake to determine whether the injury was inflicted in a manner inconsistent with the first amendment.

A. The Relevant Case Law

In Laird v. Tatum, the plaintiffs had alleged that the mere existence of an Army surveillance system which investigated lawful and peaceful civilian activity chilled the exercise of their first amendment rights. The Supreme Court held, in a 5-4 decision, that “in the absence of a showing of objective harm or a specific threatened future harm,” any claimed chill is merely “subjective” and therefore not justiciable.

Although the surveillance system under attack in Tatum and the one in this case are similar in that much of the intelligence was garnered from news publications, none of the information in Tatum was obtained through the clandestine infiltration some of the plaintiffs experienced here. In Tatum, when news publications were insufficient to satisfy Army intelligence needs, the Army, which apparently was not claiming to have had any suspicion of criminal conduct, properly kept its surveillance limited to the public domain. The Court emphasized the public scope of the investigation as follows:

The information itself was collected by a variety of means, but it is significant that the principal sources of information were the news media and publications in general circulation. Some of the information came from Army Intelligence agents who attended meetings that were open to the public and who wrote field reports describing the meetings, giving such data as the name of the sponsoring organization, the identity of speakers, the approximate number of persons in attendance, and an indication of whether any disorder occurred. And still other information was provided to the Army by civilian law enforcement agencies.

408 U.S. at 6, 92 S.Ct. at 2322.

It was in this context that the plaintiffs in Tatum claimed that the compilation and storage of the acquired information chilled their exercise of first amendment rights. The Court felt that the intrusions the plaintiffs were objecting to were unlike and much less significant than those the Court had previously condemned on first amendment grounds, so any “chill” the plaintiffs claimed to be suffering was purely “subjective.” The types of intrusions which the Court felt would cause an objective chill occurred in cases like Baird v. State Bar of Arizona, 401 U.S. 1, 91 S.Ct. 702, 27 L.Ed.2d 639 (1971) (state may not compel a person to disclose that person’s associations in order to be admitted to state bar); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967) (state may not discharge employees because of their political associations); Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965), and Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964). In those cases, “the challenged exercise of governmental power was regulatory, proscriptive, or compulsory in nature, and the complainant was either presently or prospectively subject to the regulations, proscriptions, or compulsions that he was challenging.” 408 U.S. at 11, 92 S.Ct. at 2324. By contrast, the chill involved in Tatum, based as it was on knowledge of the mere existence of a surveillance system, which collected data from information open to the public, and which caused no tangible harm to plaintiffs, could only have caused a subjective chill and was therefore nonjusticiable.

In the years since Tatum, courts have struggled to determine when a surveillance system became so intrusive as to create a reasonable or objective chill in a plaintiff and therefore present a justiciable controversy. As a substantial amount of time has elapsed since Tatum, it is possible to glean a pattern from these various court decisions. For example, as Tatum itself suggested, when the intelligence-gathering tactic involves only the use of police surveillance of meetings held open to the public, no objective chill is involved; conversely, when infiltration into private enclaves is present, a first amendment claim may be justiciable. See e.g., Berlin Democratic Club v. Rumsfeld, 410 F.Supp. 144 (D.D.C.1976) (surveillance by illegal wiretapping and infiltration into “meetings and private associations” held to be factors rendering Tatum distinguishable and the claim justi-ciable); Philadelphia Yearly Meeting of the Religious Society of Friends v. Tate, 519 F.2d 1335, 1337-38 (3d Cir.1975) (only public surveillance involved; Tatum governs); Socialist Workers Party v. Attorney General, 510 F.2d 253 (2d Cir.1974) (Socialist Workers Party convention open to any person under 29; surveillance by FBI informants did not present justiciable controversy under Tatum). When Justice Marshall was presented with the facts of Socialist Workers Party as Circuit Justice on an application to stay the Court of Appeals decision, he decided the issue of justi-ciability differently. While not disagreeing with the Court of Appeals’ holding that the openness of the convention was a factor against justiciability, he wrote that Tatum should nevertheless be distinguished and the claim considered justiciable because of the presence of other, apparently more important factors pertinent to an objective chill: “[T]he challenged investigative activity will have the concrete effects of dissuading some YSA delegates from participating actively in the convention and leading to possible loss of employment for those identified as being in attendance.” Socialist Workers Party v. Attorney General, 419 U.S. 1314, 1319, 95 S.Ct. 425, 428, 42 L.Ed.2d 627 (1974). Subsequent lower court cases have picked up on the potential injury-to-employment factor as helping establish justiciability. See e.g., Paton v. La Prade, 524 F.2d 862 (3d Cir.1975) (justicia-ble claim presented when FBI maintained a ‘mail cover’ file on plaintiff, pursuant to a regulation which directed an investigation and record-keeping on all persons who wrote letters to Socialist Workers Party; file was alleged to possibly cause injury to future employment prospects); Clark v. Library of Congress, 750 F.2d 89 (D.C.Cir.1984) (library worker who was investigated by FBI because of his political associations presented justiciable claim when he alleged the investigation cost him employment opportunities).

Thus it appears that in determining whether a claimed chill is objective, the Supreme Court in Tatum and the appellate courts in Philadelphia Yearly and Socialist Workers Party relied chiefly on the public nature of the surveillance tactics in concluding nonjusticiability. By contrast, Justice Marshall, Patón, and Clark focused on the specific adverse effects that the investigation was claimed to have on the plaintiffs. Some of the adverse effects which other courts have considered relevant to justiciability relate to issues other than employment, such as the damaged reputations caused by the dissemination of the accumulated information when such dissemination has occurred. See e.g., Jabara v. Kelley, 476 F.Supp. 561 (E.D.Mich.1979) (justiciability where false and misleading reports of plaintiff’s activities were disseminated in course of FBI investigation causing injury to reputation); Berlin Democratic Club v. Rumsfeld, 410 F.Supp. 144 (D.D.C.1976) (public dissemination of accumulated information in a false or defamatory manner was a factor in rendering claim justiciable); Alliance to End Repression v. Rochford, 407 F.Supp. 115 (N.D.Ill.1975) (where police files were allegedly disseminated so as to damage academic and professional lives of plaintiffs, justiciable claim was presented). Even police dissemination of truthful but stigmatizing information, such as police statements that certain individuals are the subjects of police intelligence files, if done without any lawful purpose, may be justiciable. See Philadelphia Yearly, 519 F.2d at 1339.

Other adverse effects relevant to justici-ability, and closely related to the issue of how the surveillance is conducted, pertain to the instability and disruption of political associations caused by intrusive infiltrators and investigators. See Founding Church of Scientology v. FBI, 459 F.Supp. 748 (D.D.C.1978) (surveillance and infiltration of church group presented justiciable claim where FBI activities had effect of disrupting plaintiff organization and its growth by deterring supporters from joining); Berlin Democratic Club, 410 F.Supp. at 149 (claim justiciable when infiltrators disrupted private organization by providing it with false information and soliciting illegal actions); Handschu v. Special Services Division, 349 F.Supp. 766 (S.D.N.Y.1972) (government may use infiltrators and informers generally, but not to solicit unlawful activity or create feelings of mutual distrust and suspicion among group members). See also Socialist Workers Party v. Attorney General, 419 U.S. 1314, 95 S.Ct. 425, 42 L.Ed.2d 627 (1974) (Marshall, Circuit Justice) (surveillance which has effect of deterring supporters from joining organization, even when surveillance conducted in public, may present justiciable claim); Jabara v. Kelley, 476 F.Supp. 561 (E.D.Mich.1979) (investigation of individual which has effect of deterring others from associating with him is factor in favor of justiciability), vacated in part on other grounds, 691 F.2d 272 (6th Cir.1982), cert. denied, 464 U.S. 863, 104 S.Ct. 193, 78 L.Ed.2d 170 (1983).

To summarize, these various considerations have been restated by the Philadelphia Yearly and Berlin opinions:

We think it is clear that Tatum supports the action of the district court here [dismissing the complaint] to the extent the complaint alleges a constitutional violation on the basis of mere police photographing and data gathering at public meetings. We say this because such activity by law enforcement authorities, without more, is legally unobjectionable and creates at best a so-called subjective chill which the Supreme Court has said is not a substitute for a claim of specific present harm or a threat of specific future harm, [footnote omitted]

Philadelphia Yearly Meeting of the Religious Society of Friends, 519 F.2d at 1337. And in explaining when a claim presents a justiciable controversy, the Berlin court stated:

Thus, while collection and retention of information, if collected in a legal manner, cannot be challenged, public dissemination of that information in a false or defamatory manner and with no lawful purpose, disruption of legitimate activities, termination of employment, illegal electronic surveillance, and other forms of harassment are subject to challenge as beyond “legitimate surveillance activities.”

Berlin Democratic Club, 410 F.Supp. at 151.

B. Application of Law to Parties

Having surveyed the case law, the court can now determine whether the parties here have presented a justiciable claim. Careful examination of the evidence leads this court to conclude that the actions of the police department with respect to Alliance, CPC, and Montgomery created justiciable claims, but there is insufficient evidence in the record to warrant a similar conclusion as to the individual plaintiffs Hogan and Rayner.

1. Alliance

The case for Alliance is the strongest of all the plaintiffs. The record establishes that the police surveillance of Alliance was far more intrusive than the “passive observational activities upheld in Tatum. ” Handschu, 349 F.Supp. 766, 771. First, an informer and an undercover agent both became board members of Alliance and participated in the Alliance decision-making process. This sort of infiltration, especially as to the undercover police officer, weighs heavily in the determination that Alliance’s claimed chill is reasonable. The board of a political organization is certainly not open to the public. Almost by definition, the “board” is a select group of an organization’s members who develop and decide the goals and directions that the organization is going to take. When the police are permitted to infiltrate and record comments made by the members of an organization's highest levels, and to participate in the organization’s top decisional authority, there will inevitably be some distrust and suspicion bred among the organization’s members. The use of police officers to infiltrate an organization and thereby cause disruption of the organization through the creation of distrust, has already been held to be a factor establishing justiciability. See e.g., Handschu, 349 F.Supp. 766.

These objections to the police undercover infiltrator can also be raised against the informer who also became an Alliance board member. In general, of course, there is nothing wrong with the police receiving and retaining information freely reported to it by informers. Plaintiffs themselves are willing to recognize this principle. See Plaintiff’s Brief in Opposition to City’s Motion for Summary Judgment at 6. Thus, if an Alliance board member decided to turn against her or his organization and inform the police of Alliance’s activities, the police would be free to question the individual. But that is not what happened here. The record clearly states that an informer “became” a board member. The implication is that a person who had already been a police informer took on the additional duplicitous role of an Alliance board member. For the same reasons that the police may not use its own undercover agents to infiltrate the high, private levels of an organization — it risks fostering the disruptive feelings of organizational distrust — the police may not participate in a venture whereby existing informers are used to infiltrate the private levels of a political association. Admittedly, the record does not indicate as clearly as it might that the police here actually told its informer to become an Alliance board member. Possibly (though unlikely) the police played no role in encouraging the informer to become a board member. Nevertheless, the court cannot find any evidence in the record to lend support to this view. To the contrary, the evidence suggesting that the police did participate in the decision to have its informer become a board member is too weighty to ignore. In particular, the defendant has agreed that the police department targeted Alliance to “nullify” its sympathetic and political influence, its financial and organizational support, and its operational activities. This glaring admission not only supports the court’s earlier conclusion that the effect of the infiltration into the private levels of the organization was to disrupt Alliance, but it also strongly suggests that the police participated in the decision to have the informer infiltrate the Alliance board.

Another factor relevant to justiciability present in this case is the evidence, uncon-tradicted in the record, that Alliance’s reputation was injured as a result of the police surveillance activities. Specifically, there is uncontradicted evidence that a Security Section police officer, an undercover police officer, and an informer all testified inaccurately before the Senate Internal Security Subcommittee that Alliance was a “Communist Party Front Group.” The police dissemination of false information pertaining to an organization or person under police surveillance has been previously discussed as rendering a chill more objective. While it is not clear that the defamatory statements about Alliance were intended to be false, the court is again able to infer such intent from the police department’s admitted policy of targeting Alliance for “nullification” and “neutralization.”

In sum, the police infiltration into the private high levels of the Alliance organization, the “nullification” policy, and the injury the police caused to Alliance's reputation through disseminating false information together make the “chill” Alliance has claimed reasonable and objective. Alliance’s first amendment claim is therefore justiciable and not barred by Tatum. It remains to be decided, however, whether the claim is nevertheless defeated because the first amendment permits the sort of police activity involved here.

2. CPC

The CPC case, though perhaps not as strong as Alliance’s, still demonstrates enough police intrusiveness so that the chill is objective. As with Alliance, the parties here agree that an informer became a treasurer of CPC and participated in CPC’s decision-making process. However, unlike Alliance, there is no evidence that an undercover agent was involved, or that CPC was the target of a nullification plan. Therefore, it is not so easy to conclude that the police participated in the decision to have its informer become the treasurer. Nevertheless, because the position of treasurer is obviously one of the most select and sensitive of all possible levels, and because infiltration at such a level implicates the very essence of the first amendment right to freely associate, the court is willing to infer police complicity on less strong evidence. For CPC, sufficiently convincing evidence exists to infer police complicity. The record establishes that independent of its specific policy targeting Alliance for neutralization, the police department had a neutralization policy against other civic organizations that the defendant admits are peaceful, including the Spanish Action Committee of Chicago, the Citizens Action Program, and the National Lawyers Guild. The existence of such an extensive “neutralization” program against organizations which, like CPC, are peaceful, leads this court to conclude that the police department at least knew of and concurred in the CPC’s informer’s decision to move into the rank of treasurer, thus making the police accountable for the infiltration.

As with Alliance, there is also present here another factor in favor of justiciability — evidence of damaged reputation from disseminated information. The record shows that when the police took photographs of CPC members at the weekend camp conference from their position “opposite” the camp, the police were accompanied by a reporter for the Chicago Tribune. Subsequently, the reporter wrote a story stating, falsely, that “radicals” and “Communists” had used the property for a “secret revolutionary planning session.” In fact, the purpose of the conference was to study nonviolent ways “to end war, racism, and repression.” The police, then, by inviting the reporter to the camp scene and conveying some of their information about CPC to him, contributed to the dissemination of damaging information. The consequence, for which there is evidence in the record, was that CPC’s reputation was injured.

In sum for the case of CPC, the court is convinced that the very high level of infiltration, and the damaged reputation from the police — caused disseminated information make CPC’s chill objective. CPC’s first amendment claim is therefore justiciable.

3. Rayner and Hogan

Unlike their organizational counterparts, these two individual plaintiffs have failed to produce evidence that establishes a justi-ciable controversy. These plaintiffs do claim that they have been chilled as a result of the police surveillance and record-keeping of their peaceful activities. But unlike the claims of the organizations, there is no evidence that the surveillance tactics resulted in any of the specific effects or was conducted in any of the ways which courts have previously identified as relevant to rendering the chill objective. For example, unlike the organizational plaintiffs, there is no evidence that police have damaged the plaintiffs’ reputations or that the police created feelings of distrust among the plaintiffs’ political associates. In particular, unlike Jabara, there is no evidence that other people are now deterred from associating with the individual plaintiffs. Unlike Clark, there is no evidence that plaintiffs’ employment opportunities have been injured. Unlike Founding Church of Scientology, there is no showing that these two individual plaintiffs were harassed.

Finally, the police surveillance tactics, unlike the complaint allegations at issue in the Alliance opinion, were not shown to be illegal or otherwise an invasion of some reasonable expectation of privacy with respect to these individual plaintiffs. The Rayner file consists, almost entirely, of nothing more intrusive than clippings from Chicago newspapers. The Hogan file similarly contains many newspaper clippings. There is no showing of illegal wiretaps, or other forms of unlawful surveillance. Although informers gave the police some of the information in the files, there is no showing that the police directed or paid the informers to duplicitously befriend or remain friends with the plaintiffs while informing on them. Without any such evidence, and the burden of proof is on the plaintiffs, the court can only presume that these informers volunteered information to the police on their own initiative when the police interviewed them. There is certainly nothing illegal or unconstitutional about this, even in the absence of some reasonable suspicion of criminal conduct. See e.g., Handschu, 349 F.Supp. 766, 769; Socialist Workers Party v. Attorney General, 510 F.2d 253, 257 (2d Cir.1974) (“no one has yet suggested that the FBI be restrained from receiving information freely reported to it”). Any chill resulting from this sort of activity must be considered subjective under Tatum.

Thus, all that the court has in the record with respect to these two plaintiffs is a claim of a chill from a police surveillance system which acquired its information from various publications and from interviews with persons who knew the plaintiffs. This is the sort of situation which Tatum found nonjusticiable: a claim of chill based on the mere existence of a general system of public surveillance and no showing of any specific adverse effects. Under Tatum, such a chill is considered subjective and cannot support a justiciable claim.

4. Montgomery

The Montgomery file is troubling to the court. The file contains much more than newspaper clippings. Besides extensive biographical information, such as her date of birth, weight, eye color, schooling, marriages, and current address, the file contains a detailed chronology on Montgomery’s political activities and her social and personal activities. Specifically, this chronology outlines when Montgomery participated in certain political and social groups, where the participation took place, and the nature and extent of the participation. There is even a report included in the file on the conversations that took place during a private cocktail party at Montgomery’s home. The file contains other information that is generally not considered public. There is an extensive report on various checks Montgomery drafted and the accompanying bank statements. The file also contains details on her then current and former husbands. Specifically, the file describes where her then current husband went to college and law school, where he had positions of trustee and membership on boards of directors, and the clubs to which he belonged. Details on Montgomery’s children, by both husbands, their names, ages, and schooling are all in the file. Medical information about the husband and one child are detailed in the file. Other details about Montgomery’s past and then current political, social, and personal activities are enumerated at length.

If all this information was obtained from published sources or informants whom the police did not recruit, then Tatum would likely bar Montgomery’s claim. Nevertheless, the information covers such a wide range of Montgomery’s public and personal activities that one cannot help but get an entire character portrait from reading the file. It seems that there should come a point when, in tenaciously tracking and piecing together the details of a person’s life from multifarious sources, the resulting probe becomes so intrusive as to amount to an invasion of privacy even if the individual pieces of the probe are from public sources. Such an intrusion has happened here. In these circumstances, the burden of proving that the information indeed did come from exclusively public sources, such as newspapers or volunteer informants whom the police did not direct themselves, should be on the defendant before Tatum bars the claim. Because the City has not presented any evidence suggesting that all the information was accumulated from public sources, and because it is reasonable to infer that much of the extensively personal information in the file could only be obtained from nonpublic sources, the court concludes that Montgomery’s chill is reasonable, objective and justiciable.

III. The Merits of the First Amendment Claims

Having established that Alliance and CPC present justiciable claims, the court must now decide whether those claims are meritorious under first amendment doctrine. Put another way, given that the police tactics have reasonably chilled Alliance and CPC, is that chill nevertheless justified under first amendment standards?

The first amendment, of course, protects the rights of all citizens to hold differing political beliefs and belong to lawful political parties and associations. Elrod v. Burns, 427 U.S. 347, 356-60, 96 S.Ct. 2673, 2681-83, 49 L.Ed.2d 547 (1976); Buckley v. Valeo, 424 U.S. 1, 11, 96 S.Ct. 612, 630, 46 L.Ed.2d 659 (1976), NAACP v. Button, 371 U.S. 415, 430, 83 S.Ct. 328, 336, 9 L.Ed.2d 405 (1963). As stated before, the parties to this case do not dispute the lawfulness of the Alliance and CPC associations. Significant impairments of these first amendment rights, as in the case of an objective chill, must withstand exacting scrutiny and may not be justified on. a showing of a mere legitimate state interest. Elrod v. Burns, 427 U.S. at 362, 96 S.Ct. at 2684, Buckley v. Valeo, 424 U.S. at 64, 96 S.Ct. at 656; Kusper v. Pontikes, 414 U.S. 51, 58, 94 S.Ct. 303, 308, 38 L.Ed.2d 260 (1973). The District of Columbia Circuit in Clark v. Library of Congress carefully articulated these first amendment standards as applied to the police surveillance context:

Exacting scrutiny is especially appropriate where the government action is motivated solely by an individual’s lawful beliefs or associations, for government action so predicated is imbued with the potential for subtle coercion of the individual to abandon his controversial beliefs or associations. Whether or not the government intended to punish or coerce the individual cannot be the sole test of legitimacy in such governmental action. Where the government action inflicts a palpable injury on the individual because of his lawful beliefs, it has the direct and consequent effect of chilling his rights to freedom of belief and association. For these reasons, the Supreme Court has held such governmental actions may be justified only upon a showing of a paramount or vital government interest. Elrod v. Burns, 427 U.S. at 362 [96 S.Ct. at 2684]. The burden is on the government to show the existence of such an interest. Id. Moreover, the government must demonstrate that the means chosen to further its compelling interest are those least restrictive of freedom of belief and association. Id. at 362-63 [96 S.Ct. at 2684-85],

Clark v. Library of Congress, 750 F.2d 89, 94 (D.C.Cir.1984).

1. Alliance

The City admits that the police surveillance of Alliance was conducted without any reasonable suspicion that Alliance was engaged in criminal conduct. Nevertheless, the police infiltrated the Alliance board pursuant to a “neutralization” policy and disseminated false and damaging information about Alliance while testifying to a congressional committee. In the discussion below I conclude that the City has not sustained its burden of demonstrating that these tactics were the least drastic means to achieving a compelling state interest.

There can be no doubt that, even in the absence of a reasonable suspicion of criminal activity, the government has an interest in investigating civilian conduct so that it may determine whether some further action is needed to protect the public from ' criminal behavior. This interest, including specifically the government’s interest in using informers and infiltrators to investigate lawful conduct, has been described elsewhere as “legitimate.” Handschu, 349 F.Supp. at 769. But, as Elrod teaches, a mere legitimate interest is insufficient to justify an investigatory tactic that creates an objective chill of first amendment rights. The City must show that infiltrating a high, private level of Alliance, without any reasonable suspicion of criminal activity, was the least drastic means in furtherance of a compelling state interest. Similarly, the City must show a compelling state interest in intentionally giving false testimony about Alliance at congressional hearings.

The court first examines the infiltration activities. The Alliance case is unlike the typical case of police surveillance. The City has not simply sent informers and infiltrators to open meetings to observe and record events. It has sent its agents to participate in private meetings which are reasonably expected to be open only to those who have a sincere interest in exercising responsibility for the organization. The court cannot find, and the City does not proffer, a compelling reason for permitting this sort of disruptive infiltration in the absence of any reasonable suspicion of criminal conduct. In similar cases, such police conduct, in the absence of any “good faith” basis for an investigation, has been held to be violative of the first amendment. See e.g., Jabara v. Kelley, 476 F.Supp. 561 (government cannot justify deterring political associations in the absence of a good faith criminal investigation); Clark, 750 F.2d 89 (objective chill can be justified only by a good faith investigation), Paton v. LaPrade, 469 F.Supp. 773 (D.N.J.1978) (good faith criminal investigation needed before a mail cover regulation can issue). Even if there were a compelling interest in private, high level infiltration without a reasonable suspicion of criminal conduct, the City has not shown why the information sought could not also be acquired by less drastic means, such as sending infiltrators to Alliance meetings open to the public. In short, the police infiltration into Alliance’s board in the absence of any reasonable suspicion of criminal activity violated Alliance’s first amendment rights.

The City has also failed to demonstrate, or even argue, any interest whatever in intentionally testifying falsely to a congressional committee. Although the City certainly has an interest, indeed the duty, to answer Congress’ lawful requests for testimony as to the information the police have lawfully accumulated, this court can conceive of no reason, let alone a compelling one, which would justify the intentional giving of false testimony to that or any investigative body. Therefore, this particular action of the police also violated Alliance’s first amendment rights.

2. CPC

The discussion as to the Alliance infiltration applies with equal force to CPC. The police, it is admitted, had no reasonable suspicion that CPC was engaged in any criminal conduct. Therefore, the police involvement in infiltrating one of its informers into the position of treasurer, and the inevitable disruption and distrust within the organization caused by such infiltration, cannot be justified on first amendment grounds, especially in the absence of any argument that the information thus obtained could have been acquired by less drastic means.

The police action in inviting the Tribune reporter to the CPC weekend conference at the camp location also unnecessarily infringed on CPC’s first amendment rights. Even if this court were to assume that all of the statements the police made to the reporter about CPC were true, and it was only the reporter who then published the falsehoods, there is no reason why the police had to invite the reporter to the campsite at all. The court fails to see how the police investigation was advanced by the presence of a 'newspaper reporter at the scene of investigation. If anything, the published story may have made it more difficult for the police to conduct their investigation. In any event, the City offers, and I find, no compelling reason for permitting the police to render available to a reporter information about CPC’s lawful conference activities to a newspaper, thereby enabling that reporter to write a story on those activities. See Philadelphia Yearly, 519 F.2d at 1338 (“It is not apparent how making information concerning the lawful activities of plaintiffs available to non-police groups [television broadcasters] or individuals could be considered within the proper ambit of law enforcement activity.”) Therefore, the police action in inviting the newspaper reporter to the campsite violated CPC’s first amendment rights.

3. Montgomery

As to Montgomery, the police again admit they had no reasonable suspicion of criminal conduct. Yet the police accumulated an extensive dossier detailing almost all facets of Montgomery’s life, from her participation in political events to conversations at a cocktail party, to medical facts about her child. Without any reasonable suspicion of criminal conduct, the court cannot conceive of any remotely compelling interest the City has in recording which political activities an individual chooses to involve herself in, let alone to whom the individual writes her checks, and any family medical problems that may exist. The recordation of such information can only serve to stifle the very sort of lawful, robust dissent that the first amendment, from its inception, was intended to protect. Therefore, the police maintenance of a dossier on Montgomery which was so extensive as to create an entire portrait of her personal, family, financial, and political life, violated her first amendment rights in the absence of a reasonable suspicion of criminal conduct, and in the absence of any evidence that the information came from exclusively public sources.

IV. Conclusion

The defendant has violated the first amendment rights of Alliance, CPC, and Montgomery in the specific ways described above. Rayner and Hogan have not presented justiciable first amendment claims so the court does not consider the merits of those claims. In accordance with the agreement of the parties, the court enters judgment in favor of plaintiffs Alliance and CPC, and against defendant City of Chicago, for $20,625 apiece plus costs, and enters judgment in favor of plaintiff Montgomery for $10,000 plus costs. Judgment is entered in favor of defendant City of Chicago as against plaintiffs Hogan and Rayner for lack of justiciability.

It is so ordered.

      . In their brief in answer to defendant’s motion for summary judgment, plaintiffs argue that the Alliance opinion, written in response to defendant's motion to dismiss the complaint in this case ten years ago, governs whether Tatum applies to the facts of this case. It is true that Alliance held that Tatum and its progeny did not bar plaintiffs’ claim, as set forth in the allegations of the complaint. However, that opinion is not dispositive of the current motions for summary judgment, since the court is no longer working with the same set of allegations. Instead, the court has been presented with a set of stipulated facts which are in many ways different from the allegations of the complaint. The court must therefore reassess the relevance of Tatum in light of this new set of facts.

      . It is not clear from the record whether the police position "opposite” the camp was open to the public, or whether CPC and the other groups had some reasonable expectation that no one would have access to that position without their permission. Plaintiffs do not argue that the police concealed their position or placed themselves somewhere that was not generally accessible to the public. In the absence of any arguments on the impropriety of the police setting up their equipment "opposite” the camp, the court will not rule on that question. It is worth noting, however, that police photography from places open to the public has been held not to produce a justiciable first amendment claim. See Philadelphia Yearly Meeting of the Religious Society of Friends v. Tate, 519 F.2d 1335, 1337 (3d Cir.1975).

      . Although the record indicates that the reporter merely "accompanied” the police to the camp, I think the conclusion is inescapable that the police invited the reporter to watch the conference events. To conclude otherwise would be to suggest the uncanny coincidence that the police and the reporter were investigating the same organization at the same time and place and just happened to independently arrive at the campsite together. Without at least some argument by defendant that this is what in fact happened, I must conclude that the reporter was actually invited to attend.

      . A different question might be presented if plaintiffs had presented evidence showing that the police did more than simply interview informers who had come to the police with information on the plaintiffs. In particular, if after receiving information for the first time from an informer, the police directed the informer to keep up the appearance of a friendly relationship with the person informed on while continuing to inform on him, a constitutional claim might be stated since the police admit they never had any reasonable suspicion of criminal conduct. Although Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966) permits police participation in informer duplicity, the Hoffa investigation took place in the context of reasonable suspicion of criminal conduct. Hoffa’s holding was based on the fourth amendment, but in Jabara v. Kelley, 476 F.Supp. 561, 570-75, after a lengthy discussion, the court held that a first amendment analysis leads to the same result. Thus, under Jabara, when police participate in getting an informer to maintain a duplicitous relationship with an individual, there must be a "good faith" investigation underway. There was no good faith investigation underway here. However, since the record for the individual plaintiffs does not establish any police complicity in getting the informers to maintain a duplicitous relationship with the individual plaintiffs, no constitutional claim is presented.

      . None of the cases provides a precise definition of a "good faith” criminal investigation. However, it appears clear that a good faith investigation requires more than a mere "subjective perception of a threat.” Jabara v. Kelley, 476 F.Supp. 561, 574 n. 7. Accordingly, the court is of the opinion that a good faith criminal investigation requires at least some reasonable suspicion of criminal conduct. While the standard of reasonable suspicion of criminal conduct is itself imprecise, it is not as stringent as probable cause. See Llaguno v. Mingey, 763 F.2d 1560, 1565 (7th Cir.1985). The Supreme Court has often recognized a difference between a reasonable suspicion of criminal conduct and — what is required for probable cause — a reasonable probability of criminal conduct. See United States v. Cortez, 449 U.S. 411, 421-22, 101 S.Ct. 690, 696-97, 66 L.Ed.2d 621 (1982); United States v. Brignoni-Ponce, 422 U.S. 873, 880, 95 S.Ct. 2574, 2579, 45 L.Ed.2d 607 (1975); Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 1922-23, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968).


source: Caselaw Access Project

author: HAND, Chief Judge.

license: Public Domain

text:
    Charles RIDLING, et al. v. ARMSTRONG WORLD, et al. Helen WILLIAMS, et al. v. ARMSTRONG WORLD, et al. Edna GRAVES, Individually and as Administratrix of the Estate of L.L. Graves, Deceased, v. ARMSTRONG WORLD, et al. Edward YOUNG, et al. v. ARMSTRONG WORLD, et al. Edward YOUNG, et al. Lauree CONAWAY, Individually and as Representative of the Estate of Louis Conaway, Deceased, v. OWENS-CORNING FIBERGLAS CORPORATION, et al. Joseph MILLER, et al. v. ARMSTRONG WORLD, et al. Joseph MORRIS, et al. v. ARMSTRONG WORLD, et al. William DAY, et al. v. ARMSTRONG WORLD, et al. Herman DICKENS, et al. v. ARMSTRONG WORLD, et al. Richard YOUNG, et al. v. ARMSTRONG WORLD, et al. Calvin JONES v. ARMSTRONG WORLD, et al. Earl WHEELER, et al. v. ARMSTRONG WORLD, et al. William HAYES, et al. v. ARMSTRONG WORLD, et al. Donald MILLER, et al. v. ARMSTRONG WORLD, et al. Bernys WHEELER, et al. v. ARMSTRONG WORLD, et al. John SARGENT, et al. v. ARMSTRONG WORLD, et al. Daniel IRVING, et al. v. ARMSTRONG WORLD, et al. Robert PIERCE, et al. v. ARMSTRONG WORLD, et al. C.P. McIntyre, et al. v. ARMSTRONG WORLD, et al. Lauree CONAWAY, Individually and as Representative of the Estate of Louise Conaway, Deceased, v. OWENS-CORNING FIBERGLAS CORPORATION, et al. John C. PARKER, et al. v. ARMSTRONG WORLD, et al. Travis BYRD, et al. v. ARMSTRONG WORLD, et al. John PHILLIPS, et al. v. ARMSTRONG WORLD, et al. Asbestos Litigation Transfers from Northern District of Texas Applicability of Texas Statute of Limitations.
    Nos. 84-1198-X-C, 84-1432-X-C, 84-1433-X-C, 84-1480-X-C, 85-0070-X-C, 85-0352-X-C, 85-0485-X-C, 85-0419-X-C to 85-0421-X-C, 85-0442-X-C, 85-0566-X-C, 85-0567-X-C, 85-0661-X-C, 85-0666-X-C, 85-0671-X-C, 85-0748-X-C to 85-0750-X-C, 85-0754-X-C, 85-0970-X-C, 85-0997-X-C and 85-1017-X-C.
    United States District Court, S.D. Alabama, S.D.
    Jan. 3, 1986.

      Russell W. Budd and Sarah C. Griffin, Dallas, Tex., Stephen Flynn, Mobile, Ala., for plaintiffs.
    James H. Crosby, Vincent A. Noletto, Jr., Michael S. McGlothren, C. Paul Cavender, Brown, Hudgens, Richardson, P.C., Bert S. Nettles, Reggie Copeland, Mobile, Ala., Nettles, Barker & Janecky, for Owens-Corning Fiberglas, Owens-Illinois, Inc., The Cel-otex Corp./Carey Canada/Carey Canadian Mines, Eagle-Picher Industries, Inc., Fibre-board Corp., H.K. Porter Co., Inc., Pittsburgh Corning Corp., Armstrong World Industries, Inc., Keene Corp., ACandS and Turner & Newall.
    Michael S. Allred, Thomas L. Kirkland, Jr., Satterfield & Allred, Jackson, Miss., for ACandS.
    Donald Stewart, Paul D. Myrick, Mobile, Ala., for Armstrong World Industries, Inc.
    Peter V. Sintz, Mobile, Ala., for The Celo-tex Corp./Carey Canada/Carey Canadian Mines.

      E.L. McCafferty, Mobile, Ala., Frank M. Bean, Bean & Manning, Houston, Tex., for Eagle-Picher Industries, Inc.
    Steven Snyder, Brobeck, Phleger & Harrison, San Francisco, Cal., and Bibb Allen, London, Yancey & Clark, Birmingham, Ala., for Fibreboard Corp.
    Grey Redditt, Jr., Mobile, Ala., for H.K. Porter Co.
    Robert Hood, Robert Hood & Associates, Charleston, S.C., James B. Newman, Mobile, Ala., for Keene Corp.
    James H. Crosby, Vincent A. Noletto, Jr., Michael S. McGlothren, C. Paul Cavender, Mobile, Ala., for Owens-Corning Fiberglas Corp.
    Bert S. Nettles, Reggie Copeland, Mobile, Ala., for Owens-Illinois, Inc.
    Mark Zeidman, Mayor, Day & Caldwell, Houston, Tex., Henry G. Garrard, III, Bla-singame, Burch, Garrard & Bryant, P.C., Athens, Ga., for Pittsburgh Corning Corp.
    Paul J. Hanley, Jr., Richards, O’Neil & Allejaest, New York City, for Turner & Newall.
    W. Michael Atchison, Birmingham, Ala., John H. Holloman, III, Jackson, Miss., for Raymark Industries.
    Robert H. Smith, Mobile, Ala., for Nico-let.
    Jack W. Morgan, Mobile, Ala., William F. Goodman, III, Jackson, Miss., for GAF.
    Frank G. Harmon, III, Houston, Tex., Walter M. Cook, Jr., Lyons, Pipes & Cook, Mobile, Ala., for Crown Cork & Seal.
    Thomas W. Tardy, III, Jackson, Miss., Mary Elizabeth Rouse, Mobile, Ala., for Combustion Engineering.
    James Johnston, Mobile, Ala., for Standard Insulations.
    Wesley Pipes, Mobile, Ala., for Forty-Eight Insulations.
   ORDER

HAND, Chief Judge.

This cause is before the Court on plaintiffs’ motion to apply the Texas statute of limitations in those actions transferred from the Northern District of Texas. The plaintiffs, Alabama residents, filed their suits in the Northern District of Texas seeking damages for personal injuries caused by exposure to asbestos-containing products manufactured by the various defendants. Upon motion of the defendants, these actions were transferred to the Southern District of Alabama pursuant to 28 U.S.C. § 1404(a) which provides for transfer to another district court for the convenience of the parties and witnesses.

In support of this motion, plaintiffs rely particularly upon the landmark United States Supreme Court decision of Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964) which held that when, upon a defendant’s motion, a case is transferred from one federal court sitting in diversity to another pursuant to 28 U.S.C. § 1404(a), “the transferee district court must be obligated to apply the state law that would have been applied if there had been no change of venue.” 376 U.S. at 639. As applied to the case at bar, plaintiffs contend that the District Court for the Northern District of Texas, employing Texas conflict of law rules, would have applied the Texas statute of limitations to these actions and, therefore, this Court as the transferee court must also apply the Texas statute of limitations.

Plaintiffs correctly note that the District Court for the Northern District of Texas would be obligated to apply the conflicts of law principles of Texas, the state in which it sits. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Acme Circus Operating Co. v. Kuperstock, 711 F.2d 1538 (11th Cir.1983). Plaintiffs then contend that the District Court for the Northern District of Texas, employing Texas conflicts of law rules, would have applied the Texas statute of limitations because “when confronted with a lawsuit in which the substantive law of another jurisdiction is to be applied, Texas courts will most often apply their own state’s statute of limitations ... based on the theory that the foreign jurisdiction’s statute of limitations is most often part of its procedural, rather than substantive law.” Ellis v. Great Southwestern Corp., 646 F.2d 1099, 1111 (5th Cir.1981), and it has long been held by Texas courts that “matters of remedy and of procedure are governed by the laws of the state where the action is sought to be maintained,” California v. Copus, 158 Tex. 196, 309 S.W.2d 227, 230, cert. denied, 356 U.S. 967, 78 S.Ct. 1006, 2 L.Ed.2d 1074 (1958); Culpepper v. Daniel Industries, Inc., 500 S.W.2d 958 (Tex.Civ.App.1973).

Upon review of the extensive briefs filed by the parties relative to this motion, the Court finds that the defendants never dispute the above contentions of the plaintiffs but, rather, attack the applicability of the Texas statute of limitations on the following grounds: 1) The Alabama statute of limitations is an integral part of the Alabama substantive law on products liability and these cases, therefore, fall within the exception to the general principle enunciated in Ellis v. Great Southwestern Corp., supra, and 2) Application of the Texas statute of limitations in these cases would violate the due process and full faith and credit clauses of the United States Constitution in view of the absence of any significant contacts between this litigation and the State of Texas.

I. Procedural v. Substantive Law Challenge

Relative to the defendants’ first ground, the exception in Ellis sought to be relied on by the defendants is stated as follows:

[W]hen the foreign jurisdiction’s statute “creates a right and also incorporates a limitation upon the time within which the suit is to be brought ... the limitation qualifies the right so that it becomes part of the substantive law rather than procedural, and ... unless suit is brought within the time allowed by [the foreign state’s] statute no right of action can be maintained even though the law of [Texas] provides for a longer period of limitations.”

646 F.2d at 1111, quoting California v. Copus, 158 Tex. 196, 201, 309 S.W.2d 227, 231, cert. denied, 356 U.S. 967, 78 S.Ct. 1006, 2 L.Ed.2d 1074 (1958). Defendants argue that the statute of limitations provision, Ala.Code § 6-5-502 (1975), contained in Alabama’s Products Liability Act, Ala. Code § 6-5-500, et seq. (1975), is an integral part of the substantive provisions of the Act itself and that, consequently, the Texas statute of limitations is inapplicable in the present cases.

Plaintiffs correctly point out, however, that the Alabama Supreme Court in Lankford v. Sullivan, Long and Hagerty, 416 S.2d 996 (Ala.1982) held § 6-5-502(c) of the Alabama Products Liability Act to be unconstitutional. Consequently, Division 1 of the Alabama Products Liability Act, including § 6-5-500, 501 and 502, were rendered void pursuant to § 6-5-504 which reads:

It is expressly provided that each section, clause, provision or portion of this division shall be construed as inseparable and nonseverable from all others, and in the event that any section, clause, provision or portion of this division shall be held invalid or unconstitutional by any court of competent jurisdiction, the entire division and each section, clause, provision or portion thereof shall be inoperative and have no effect.

Ala.Code § 6-5-504 (1975). See also, Daniel v. Heil Company, Inc., 418 S.2d 96, 97 (Ala.1982) (“Section 6-5-502, et seq., Ala. Code 1975 were declared unconstitutional by this court in Lankford.”)

Plaintiffs also correctly point out that, in the absence of § 6-5-502, the only statutes of limitations which could apply to these asbestos personal injury actions are § 6-2-38, as amended in 1984, and § 6-2-30(b), enacted in 1980. Both § 6-2-38 and § 6-2-30(b) are found within a division of the Alabama Code which deals exclusively with limitation periods and, therefore, neither of these provisions fit within the Ellis exception relied on by defendants as neither are contained within a statute which “creates a right and also incorporates a limitation upon the time within which the suit is to be brought.” Ellis, 646 F.2d at 1111. Consequently, both § 6-2-38 and § 6-2-30(b) would be deemed procedural by the Texas courts and the Texas statute of limitations would be deemed to take precedence under the reasoning of Ellis, Copus and Culpep-per, supra, even though the substantive law which also governs the cases may differ. This Court is obliged, therefore, to apply the Texas statute of limitations as would the District Court for the Northern District of Texas.

II. Constitutional Challenge

Relative to the defendants’ second ground, defendants assert the unconstitutionality of applying the statute of limitations of a state such as Texas which has no significant connection with the litigation. Defendants emphasize the often unfavorable consequences of forum shopping and specifically assert violations of the due process and full faith and credit clauses of the United States Constitution.

As the plaintiffs correctly counter, there is no authority to the effect that the full faith and credit clause limits a forum state’s selection of its own statute of limitations as applicable to a foreign substantive right. In fact, the Supreme Court clearly held in Wells v. Simonds Abrasive Co., 345 U.S. 514, 73 S.Ct. 856, 97 L.Ed. 1211 (1953) that “the Full Faith and Credit Clause does not compel the forum state to use the period of limitation of a foreign state.” 345 U.S. at 517, 73 S.Ct. at 857.

Defendants’ due process argument must also fail. The cases relied upon by defendants for the proposition that a particular state's statute of limitations can be applied constitutionally only if that state has a significant contact or significant aggregation of contacts thereby creating a state interest have been misinterpreted and/or misapplied by said defendants. For example, in Allstate Insurance Co. v. Hague, 449 U.S. 302, 101 S.Ct. 633, 66 L.Ed.2d 521 (1981), the Supreme Court clearly states:

[F]or a State’s substantive law to be selected in a constitutionally permissible manner, that state must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair.

449 U.S. at 313, 101 S.Ct. at 640 (emphasis added). The Supreme Court thus explicitly directs the due process and full faith and credit analysis only to the choice of applicable substantive law, not procedural law.

Defendants also contend that in Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984), the Supreme Court “expressly left undecided” the question regarding the constitutionality of applying New Hampshire’s statute of limitations merely because only the issue of personal jurisdiction was presented. Defendants rely greatly on an excerpt in which the Keeton court notes “[tjhere has been considerable academic criticism of the rule that permits a forum state to apply its own statute of limitations regardless of the significance of contacts between the forum state and the litigation.” 104 S.Ct. at 1480, n. 10. The Supreme Court’s awareness of the existence of academic criticism, however, does not demonstrate an inclination to change the present status of the law which the Supreme Court clearly states is that “under traditional choice of law principles, the law of the forum state governs on matters of procedure. See Restatement (Second) of Conflicts of Laws § 122 (1971).” 104 S.Ct. at 1480, introductory sentence of n. 10. The Supreme Court, in fact, appears disinclined to alter the present status as evidenced by the following:

The chance duration of statutes of limitations in non forum jurisdictions has nothing to do with the contacts among respondent, New Hampshire, and this multistate libel action. Whether Ohio’s limitations period is six months or six years does not alter the jurisdictional calculus in New Hampshire. Petitioner’s successful search for a state with a lengthly statute of limitations is no different from the litigation strategy of countless plaintiffs who seek a forum with favorable substantive or procedural rules or sympathetic local populations. Certainly, Hustler Magazine, Inc., which chose to enter the New Hampshire market can be charged with knowledge of its laws and no doubt would have claimed the benefit of them if it had a complaint against a subscriber, distributor or other commercial partner.

104 S.Ct. at 1480. This dicta merely reiterates the long standing position of the Supreme Court on this issue as illustrated in Van Dusen v. Barrack, supra:

We believe, therefore, that both the history and purposes of § 1404(a) indicate that it should be regarded as a federal judicial housekeeping measure, dealing with the placement of litigation in the federal courts and generally intended, on the basis of convenience and fairness, simply to authorize a change of courtrooms.

376 U.S. at 636-37, 84 S.Ct. at 819, referring with approval to the A.L.I. Study of the Division of Jurisdiction between State and Federal Courts (Tent. Draft No. 1, 1963) which provided, in pertinent part;

The effect [of applying the choice of law rules of the transferor state] is to give the plaintiff the benefit which traditionally he has had in the selection of a forum with favorable choice-of-law rules_ It may be thought undesirable to let the plaintiff reap a choice-of-law benefit from the deliberate selection of an inconvenient forum. In a sense this is so, but the alternatives seem even more undesirable.

376 U.S. at 637, n. 36, 84 S.Ct. at 819, n. 36. It is clear, therefore, that plaintiffs’ choice of a Texas forum, even if calculated to circumvent a probable dismissal of their actions in the very court before which they now stand, is constitutionally permissible. Federal constitutional law does not preclude application of the Texas statute of limitations.

Accordingly, it is hereby ORDERED that plaintiffs’ motion to apply the Texas statute of limitations in those actions transferred from the Northern District of Texas pursuant to 28 U.S.C. § 1404(a), be and the same is, GRANTED.

ON MOTION TO RECONSIDER

This cause is before the Court on defendants’ motion to reconsider this Court’s order of January 3, 1986 which addressed the applicability of the Texas statute of limitations in those actions transferred from the Northern District of Texas. Alternatively, these defendants seek leave to appeal this Court’s January 3, 1986 ruling to the Eleventh Circuit Court of Appeals pursuant to 28 U.S.C. § 1291(b) or certification to the Alabama Supreme Court of questions which defendants contend relate to Alabama law.

The Court will first address defendants’ request to certify to the Alabama Supreme Court certain questions allegedly related to Alabama substantive law. The Court finds that the defendants, having failed earlier to establish that the Alabama statute of limitations is an integral part of the Alabama substantive law on products liability and therefore falls within the exception enunciated in Ellis v. Great Southwestern Corp., 646 F.2d 1099 (5th Cir.1981), now contend that § 95 of the Alabama Constitution of 1901 dictates that the statute of limitations bar under Alabama law is substantive and not merely procedural. The Court concludes that the defendants’ contention lacks merit. Section 95 of the Alabama Constitution of 1901 provides in pertinent part:

[T]he legislature shall have no power to revive any right or remedy which may have become barred by lapse of time, or by any statute of this state. After suit has been commenced on any cause of action, the legislature shall have no power to take away such cause of action, or destroy any existing defense to such suit.

Ala. Const., Art. IV, § 95. As interpreted by the Alabama Supreme Court in Tyson v. Johns-Manville Sales Corp., 399 So.2d 263 (Ala.1981), § 95 limits the power of the legislature to alter the period within which an action may be brought as applied to causes which are already time-barred. The Tyson court specifically held:

[The legislature] has the power to retroactively alter extend, or curtail an existing limitations period. However, this power “can only be exercised so as to apply ... where the bar was not complete before the enactment of the statute, for, if the action was ... barred [before enactment], its effect would be to revive a cause of action already barred and would violate § 95_”

399 So.2d at 268, quoting Floyd v. Wilson, 171 Ala. 139, 141, 54 So. 528 (1911). Defendants rely specifically on the three-part analysis of the Tyson court to the effect that: 1) “[§ 95] applies only to matters of substance and not to matters of form or to statutes which are remedial in nature;” 2) “a statute of limitations is a remedial statute that does not destroy any vested rights” and 3) “the running of a statute of limitations creates a vested right in that defense,” and on the Tyson court’s subsequent conclusion that:

Once an action is barred by a statute of limitations in existence at the time of commencement of the action, rights vest in the limitations defense which cannot be destroyed by subsequent legislative act because of § 95 of the Constitution restricts the legislative power to do so.

399 So.2d at 269-70.

The Court finds, however, that the analysis utilized in Tyson and the conclusion reached by the Tyson court is inapplicable to the cases at bar inasmuch as the Tyson court has not characterized the Alabama statute of limitations as substantive within the meaning of the Ellis exception, delineated as follows:

[W]hen the foreign jurisdiction’s statute “creates a right and also incorporates a limitation upon the time within which the suit is to be brought ... the limitation qualifies the right so that it becomes part of the substantive law rather than procedural, and ... unless suit is brought within the time allowed by [the foreign state’s] statute no right of action can be maintained even though the law of [Texas] provides for a longer period of limitations.”

646 F.2d at 1111, (emphasis added). The Tyson court was addressing the issue within the context of legislative power, specifically the power of the Alabama legislature, and not within the context of well established conflict of laws principles and, therefore, inapplicable to the cases at bar.

Defendants’ reliance on Alabama Great Southern Railroad Co. v. Allied Chemical Corp., 467 F.2d 679 (5th Cir.1972) is equally of no avail as this case is clearly distinguishable from the cases at bar. The action in Alabama Great Southern Railroad, as admitted by defendants, was grounded on common law and was not statutorily based. The Fifth Circuit, therefore, acting as the transferor court, examined the law of the transferee court and found that a statute existed which “clearly [barred] not only the remedy but the right itself.” 467 F.2d at 682. The statute in question, entitled “completion of limitation extinguishes right,” provided:

The completion of the period of limitation herein prescribed to bar any action, shall defeat and extinguish the right as well as the remedy.

467 F.2d at 682, quoting Miss.Code Ann. § 743. The Fifth Circuit then held:

We conclude, therefore, that even though the Mississippi [the transferee court’s jurisdiction] period of limitation is not part of a statute creating the right sued upon, Virginia courts [the transferor] would apply it in the instant case since it bars the right of action and not merely the remedy.

467 F.2d at 682. As applied to the cases at bar, the Court finds that the Mississippi statute relied upon by the Fifth Circuit is clearly dissimilar from § 95 of the Alabama Constitution.

For purposes of conflict of laws analysis, this Court concludes that § 95 of the Alabama Constitution of 1901 does not clearly bar the right as well as the remedy but rather, limits only the power of the Alabama legislature to revive an action filed in Alabama which is already time barred or to destroy any existing defense by legislative act after the commencement of a suit in Alabama. Section 95 does not automatically extinguish the right to bring any action and, therefore, cannot be said to imply that the Alabama statute of limitations at issue must be characterized as substantive within the meaning of the aforementioned Ellis exception. The Court can see no purpose or propriety in certifying an issue based on conflict of law analysis to the Alabama Supreme Court and, therefore, it is ORDERED that defendants’ request for such certification be and is hereby DENIED.

It is FURTHER ORDERED that defendants’ request for an interlocutory appeal to the Eleventh Circuit pursuant to 28 U.S.C. § 1292(b) be and is hereby DENIED. The Court concludes that, although the applicability of the Texas statute of limitations involves a controlling question of law, a substantial ground for difference of opinion as to its correctness does not exist as demonstrated in this Court’s order of January 3, 1986 and an interlocutory appeal will not materially advance the ultimate termination of this litigation. Defendants’ introduction of the recent novel opinion of the United States District Court for the District of Idaho, in Meyer v. Armstrong World Industries, Inc., No. 83-4055-(D) (D.Idaho 1985), fails to establish the requisite “substantial” conflict of opinion in light of the well-established precedent of this circuit, among others.

      . Plaintiffs inadvertently referred to § 6-2-39 which was repealed effectively January 9, 1985 and replaced by amended § 6-2-38 in 1984.

      . Defendants' attempt to construe §§ 6-2-30 and 6-2-38 together with §§ 6-5-520-525 to create a substantive bar to plaintiffs’ right of action is untenable as §§ 6-5-520-525 fall within Division 2 of Alabama’s Product Liability Act, entitled "Mitigation of Recoverable Damages," and are not amenable to the analysis used in Alabama Great So. R.R. Co. v. Allied Chemical Corp., 467 F.2d 679 (5th Cir.1972).

      . Likewise, defendants’ reliance on the following cases is unwarranted. Curtis Publishing Co. v. Birdsong, 360 F.2d 344 (5th Cir.1966), which cited International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), addressed only the constitutional propriety of an Alabama federal court exercising personal jurisdiction over Mississippi defendants. Home Insurance Co. v. Dick, 281 U.S. 397, 50 S.Ct. 338, 74 L.Ed. 926 (1930) addressed the choice of substantive law, not procedural law. John Hancock Mutual Life Insurance Co. v. Yates, 299 U.S. 178, 57 S.Ct. 129, 81 L.Ed. 106 (1936) deals not with a statute of limitations but with an erroneous finding that an evidentiary rule prevailed over a rule of substantive law in like manner as would the Alabama’s Products Liability Act (§ 6-5-500 et seq., particularly § 6-5-502) have prevailed over the Texas statute of limitations in the cases at bar had such statute not been declared unconstitutional by the Alabama Supreme Court. Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945), although indicating that, under its particular facts, a distinction between substantive and procedural law was immaterial, clearly adopted the position that "it would be a mischievous practice to disregard state statutes of limitation whenever federal courts think that the result of adopting them may be inequitable.” 326 U.S. at 111, 65 S.Ct. at 1471 (citations omitted).

      . The following defendants have joined in this motion and are hereinafter referred to collectively as "defendants": Armstrong World Industries, Inc.; Fibreboard Corporation; Owens-Corning Fiberglas Corporation: The Celotex Corporation; Eagle-Picher Industries, Inc.; H.K. Porter Company, Inc.; Turner & Newall, Ltd.; Owens-Illinois, Inc.; Carey Canada, Inc.; Carey Canadian Mines; and Crown Cork and Seal Company, Inc.