Motion to Dismiss or Affirm — Jeremiah Stamler and Yolanda F. Hall v. Edwin E. Willis

irae: og ‘Hon. Eowry E. Wiis, er at. : ,

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ow ‘APPEALS FROM THR UNITED STATRS : prarkror COURT FOR . - .

a3. eo _ THR NORTHERN DISTRICT OF ILLINOIS, RASTERN DIVISION Rgert

J 3 5, ; : < lgpemeene ented s , ue dX :

, MOTION TO DISMISS OR AFFIRMS

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Argument:

I. The appeal should be dismissed because

the three-judge district court lacked

jurisdiction of the proceedings_________

II. In the alternative, the judgment below

should be affirmed_______-___________

A. ‘Relief from the tists of the Chi-

cago DOATINGS................

1. With respect to the congres-

sional defendants, these

demands are moot_-____

2. With respect to:the prose-

cutorial defendants, all

these matters are com-

petent to be raised at

appellants’ trials for con-:

tempt, and there has

been no showing of the

extraofdinary circum-

stances required to jus-

tify ‘equitable relief in*

advance of those trials__

B. Relief from any proceedings under

| Rule XI in the future:________

1. As to the congressional de-

_ fendants, these prayers

for relief should not be

entertained____________

2. As to the prosecutorial de-

_ fendants, these prayers

were properly dismissed

RO ne sai erieseG ee ee ee PND

322-640—68———-1 (1)

13

16

-.16

=|

Cases: - ee wale

Anderson v. | 6 Wheat. 204__-_________ 13, 23 .

Barenblatt v. United States, 360 US. 109... . . 4,

6, 9, 14,18

Beacon Theatres v. Westover, 359 vs S: G00... . 21

ee oP Gee We b80s............... / 19

Dombrowski v. Burbank, 358 F. 2d 821-_ ~~ --_- . B

Dombrowski v. Eastland, 387 U.S. 82_.--___-- 22

Dombrowski v. Pfister, 380 U.S. 479_-___- 14, 16,19 -

Douglas v. City of Jeannette, 319 U.S..157___- 14

Eccles v. Peoples Bank, 333 U.S. 426-2 ___-- * 21

Evers v. Dwyer, 358 U.S. «ae 21

Fischler v..McCarthy, 117 F. Supp. 643, oes

affirmed, 218 F.2d. 164__--.-----.---- ace 17

Gojack v. United States, 384 U.S. 702______.. 9,10

Hutcheson v. United States, 369 U.S. 599___- 18

Jurney v. MacCracken, 294 U.S. 125... -__- 23

Kennedy v. M endoza-Ma artinez, 372 U. S. 144._ > 10,

11, 20

Kilbourn v. Thompson, 103 U.S. 168__.-.-_-- i

‘Krebs v. Ashbrook, 275 F. Supp. 111, affirmed

per: curiam, No. 21, 382, C.A.D.C., decided

RS ich aes ohn namees eke ino 8,10

Luscomb v. Bowker, 334 Mass. 468, 136 N.E. 2d-,

Nae a alia ia wien Shea epaete Re ~ 19

Maryland Casualty Co. v. Pacific Coal & Oil

EE Si i ie weer cine as se aso 21

McGrain v. Daugherty, 273 U.S. 135__--.---- 18.

Methodist Federation for Social Action v. East- cae

eee ©. ee, POs oo p------~-5- a

Mississippi v. Johnson, 4 Wall. ae “17

Moody v. Flowers, 387 U.S..97_--------- dtinn Ay ae

Pauling v. Eastland, 288 F. 2d 126, certiorari

PE GE SID WP wenn nnnennnn., 18, 1D, 20

“on | g

Cases—Continued ‘ Page

Phillips v. United States, 312 U.S. 246... 10, 12

Powell v. M cCormack, 395 F. 2d 577, petition

for certiorari pending, No. 138. this Term ___ 8

Powell v. M cCormack, 387 U.S. 933. - Snateen Bee

Reed Enterprises v. Corcoran, 354 F. 2d 519__ 15,16

Speilman Motor Sales v. Dodge, 295 U.S. 89____ 13 .

Swift & Co. v. Wickam, 382 U.S. See 10

Tenney v. Brandhove, 341 U.3. 367__..... 18

Terrace v. Thompson, 263 U.S.197..... 15

United States v. Wood, 295 F.2d 772... 15

Watkins v. United States, 354 U.S.178... 10, 14

Williams v. Fanning, 332 US. a 23

Wilkinson v. United States, 365 U.S. 399. ___ 14

Yellin v. United States, 374 U.S. 109_/____ 17

Young, Ex parte, 209 U.S. RA ae 15

First Amendment______.._____.. 3

Fifth Amendment... 3

Declaratory J udgment Act:

28 U.S.C. 2201__---.- 88 21

Legislative Reorganization Act of 1946: -

60 Stat. 812...--- 8

60 Stat. Ra ol SRE 9

Be coe cy a aoe

United States Code: | )

2 U.S.C. 192_____ Nid le ese eimprarenaieg lec yok ah —

UMA. TPOR... 11

28 U.S.C. 1254(1)_.. 11

48U SC. 2108.......° Mhaiecicee 11

28 U.S.C: 2281_-...... es

28 U.S.C. 2282...... 5, 8, 10, 11

28 U.S.C. 2284...... : Sap cdkel 5

nek RACING aT Ria ORE din P Ne tae LAF tes ade Y

. " I . . :

SARA, eas aak ik RAE NRL ASME §

ee ke ee ee

AI CHL HARTI. LN eat

Bieta ait de bases in rh onto e's elie

112 Cong. Rec. 27439, 27486, 27500, 27641 _ -

oo

IV

Constitution, statutes and rules—Continued _ —

Pe, Be ae os ee Se ok he ice canes 22

Rule XI of the Rules of the House of Repre- :

sontatives.......2.-... 3, 4, ® 8, 15, 17, 20, 22, 23

Rule XIV of the Rules of Procedure of the

House Committee on Un-American Activi-

i GG sao ca x oe cence eens 2

‘Rule 20, Supreme Court of the United States- : 12

- Miscellaneous:

H. Res. 8, 89th Cong; 5 [st Sess., tl Cong.

SN TG ike Dc Baba ee nae 10

H. Res. 1060, 1061, 1062, 89th Cong., 2d Sess., .

eal

bef

es 4 f? Wilke avec tas ee . r

st BRED Sa aetna Ile

Sn the Supreme Gourt of the Wnited States

OctoBER TrRM, 1968

*. No. 478

JEREMIAH STAMLER, M.D., AND Yotanpa F.. Hatt,

__—s—- APPELLANTS

v.

Hon. Eowin E. Wiis, ev at.

No. 479

MILTON M. CoHEN, APPELLANT |

Ge

Hon. Epwin E. WILLIS, ET AL.

ON APPEALS FROM THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF ILLINOIS, HASTERN DI VISION

MOTION TO DISMISS OR AFFIRM |

Pursuant to Rule 16(1) of this Court, the Solicitor

General, on behalf of respondents, moves that the

appeal from the judgment of the three-judge district

court be dismissed, or that the judgment be affirmed.

_ STATEMENT

On March 18, 1965, the House Committee on Un-

American Activities (the Committee) resolved to hold

, (1)

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.

heatings in ‘Chicago, Illinois, concerning | the organi-

zation and operation of the Communist Party in that

-area.’ In accordance with Rule XIV 0 of the Commit-

' Be. it resolved, “That hearings be held by the Committee

on Un-American activities or a subcommittee thereof, at such

- times and places as the Chairman may determine, and that the

staff be authorized to conduct investigations deemed semen d

‘necessary in preparation therefor, relating to:

1. As concerns the Chicago, Illinois area and the Illinois

District of the Communist Party of the United States; the

structure and organization of the Communist Party of the

United States; its major objectives, and the strategical and

tactical methods designed to aid in accomplishing such objec-

tives; the major areas of Communist: Party concentration;

organizations created and controlled by the Communist Party

to advance the policies and objectives of the Communist move-

-ment; Communist propaganda activities conducted in. support

of such objectives; and conspiratorial activities in aid of, or in

association with, foreign Communist governments; and also

like information regarding other Communist organizations

in the Chicago, Illinois area, for the following legislative

purposes : ,

(a) to prov ide. factual information to aid the Congress

in the proposal of any, necessary remedial legislation in

fulfillment of the directions contained in the mandate to

the Committee by House Resolution 8, of January 4, 1965,

and Public Law 601 of the 79th Congress;

(b) to assist the Congress in appraising the execution

by the administrative agencies concerned of Title I of the

Internal Security Act of 1950;

(c) to provide factual informakion to aid: the House in

the disposition of presently pending and proposed legisla-

tion, including} but not limited to, H.R. 4293, a bill to

- amend the Subversive Activities Conttol Act of 1950 so as

to authorize the Federal Government to bar from access to

defense facilities individuals who may engage 3 in sabotage,

espionage, or "other subversive acts ;

(d) consideration of the advisability of amending the

Internal Security Act so as to impose. certain disabilities,

in the manner and form therein provided, upon ‘those per-

ee a ee’

tee’s Rules of Procedure (Revised 1961), Chairman

Edwin E. Willis appointed a subcommittee of five

‘ .mémbers with himself ‘as chairman to conduct the

hearings. (Hearings, .p. 329). Appellants were sub-

poenaed to appear begpre the Committee in Chicago

~ on May 25, 1965. Appellants Stamler and Hall then

- filed suit, alleging that Rule XT of the Rules of the

.House of Representatives,’ under which the Commit- —

. tee has been conducting its investigations, -violates the

First and Fifth Amendments ¢nd- that the Committee

had subpoenaed them “‘for the purpose of embarrass- _

ing, harassing and intimidating [them] and to ‘deter

[them] from the exercise of their rights, privileges

and immunities as citizens of the United States, and

in particular their rights to freedom of belief, speech,

press, assembly and @ssociation guaranteed by the

First Amendment” (App. 1; pp. 0-12).° They re-

“quested the convening of a three-judge district court ;

that the Committee be enjoined from operating in any

manner under Rule XI; that the coming hearing be

sons “affiliated with” Communist. organizations as well as

upon persons who are members thereof.

Be it further resolved. That the hearings may include any

other matter within the jurisdiction of the Committee which

it, or any subcommittee thereof, appointed to conduct these

hearings, may designate.

Exhibit 50 to the complaint, printed as a Supplemental Ap-

pendix on the appeal (hereafter “Hearings”), p. 326. :

* As embodied in the Legislative Reorganization Act of: 1946,

60 Stat. 823, ees

“App. 1°- refers to Appellants’ Appendix in Nos. 15268,

15269 in the Seventh Circuit, appeals from the initial dismissal]

of the Suit. “App. 2” refers to Appellants’ Consolidated Ap-

pendix in Nos. 15268, 15269, 15668 and 15669 in the Seventh

Circuit, appeals from the dismissal of the amended complaint. °

—

. .

need Nard da RUA iS tl aN A oP IN De SL Ge

-4

declared “illegal and void”: and that the subpoenas

served on them be quashed (App, 1, pp. 12-14). Ap-

pellant Cohen filed his petition for leave to intervene

on the same day; it was granted without objection

(App. 1, pp. 38-39).

At’ the conclusion of a hearing on a ‘motion for. a

temporary restraining order and for the convening of

a three-judge district court, the -judge ruled orally

that the challenge to the constitutionality of Rule XI

was foreclosed by Barenblatt v. United States, 360

U.S. 109,°and that no substantial federal question.

‘warranting a three-judge court was presented. He di-

rected that the complaint be dismissed (App. 1, pp.

43-52).

_ The plaintiffs appear ed for the Committee’s ‘ses- :

sions, and were called, among other witnesses, to tes-

tify. Their request for an executive session was denied

(Hearings, pp. 538-542). After each was sworn and

gave his name and address, he was asked_to state the

date and place of his birth; each then refused, on the

, advice of counsel, to cooperate with, the Committee or

to give any further testimony while thé litigation

challenging the Committee’s power to proceed. was

pending (as it then was in the court of appeals).

Each left the hearing room at this juncture (Hear-

ings, pp. 947-552), without awaiting the questions

| which it is now argued would have been defamatory.

After denial of a motion to have the appeals

remanded to the district court for the purpose of

supplementing the complaint (App. 1, p. 112), appel-

lants instituted two new actions in which an expanded

complaint was filed. In addition to the relief which

ek ‘ae ee

had been sought in the first complaint, appellants

asked for an injunction against the institution of con-

tempt proceedings arising out of plaintiffs’ appear-

ancés (compare App. 1, pp. 12-14, with App. 2, pp.

46-47). A three-judge district court was again re-

quested: and denied. The complaint: was dismissed in a

memorandum decision (App. 2, pp. 117-134), holding.

that insofar as’ the complaint sought an injunction

against contempt proceedings it was premature and

failed to include the United States as a party; if

plaintiffs were entitled to relief they could obtain it

when and if the Speaker of the House of Representa-

tives certified their contempt for prosecution under

2 U.S.C. 192. As for the challenge to the consti-

tutionality of Rule XI, the judge held that ‘the

plaintiffs were in no immediate danger of future inter-

rogation by ‘the Committee and .that, consequently,

they had no more standing to. bring the suit at ‘that

juncture than did any bystander. eos

On a consolidated appeal.from the orders dismiss-

ing the two complaints, the court of appeals vacated -

the judgtwhent of dismissal and ‘held that the district

judge had “exceeded the single-judge preliminary.

inquity jurisdiction”’ of 28 U.S.C. 2282 and 2984.

Noting that the complaint alleged that Rule XT had

been construed by the Committee to permit “the expo-

sure of withesses, including plaintiffs, to public scorn

and obloquy and harassment and intimidation of ‘these

_ Witnesses without any legislative purpose but rather to

chill and .deter them and others in the exercise of

- their first amendment rights,” a majority of the court i

322-640-682

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concluded that. the suit raised “a substantial consti-

tutional question not foreclosed by the Supreme Court

in Barenblatt v. United States, 360 U.S. 109,” and -

_ thus warranted the convening of-a three-judge court.

In the subsequent proceedings before the three-

judge district court, appellants were permitted to add

the Attorney General of the United States and the

United States Attorney forthe Northern District of

Illinois as defendants, in order to ‘assure them the

possibility of effective relief on their prayer for an

injunction against: the then pending prosecutions.‘

Answers to the complaints were filed in December

1967 and January 1968; they asserted the official na-

ture of the acts done* and reiterated comprehensive

challenges to ‘the jurisdiction of the court and the

justiciability: of the issues presented,° which had been

raised previously in unsuccessful motions to dismiss.

*H. Res. 1060, 1061 and 1062, 89th Cong., 2d Sess. (1966),

112 Cong. Rec. 27439, 27486, 27500, 27641, directed the Speaker

of the House to certify appellants’ conduct to the United States

Aftorney for the Northern District of Illinois; the matters were

‘presented to a Chicago grand jury and indictments were returned

on July, 18, 1967. Trials on these indictments are how pending.

5 Answer of the . congressional defendants, passim.

¢“Affirmative Defenses and Objections to All Complaints and

Amended Complaints as Amended and Supplemented.

* * *" * . ~ * 7

“2. This Court lacks jurisdiction, over the subject matter.

3. This Court lacks jurisdiction over the parties de-

fendant.

4. There has been no sufficient process sery ed on any of

the defendants.

5. Venue does not lie in the Northern District of Illinois.

6. The complaints and intervening- Complaints, and all:

amendments and supplements thereto, taken either indi-

2 ak OND fee BAD ledes Gs UE CL MRS aside a os

7

“~

Appellants then moved for production of documents

(Committee records). and served a first set of inter-

rogatories and subpoenas to take depositions of mem-

bers of the staff of the Committee. Appellees opposed

the interrogatories and motion for. production of docu-

ments, and moved for summary judgment.

In March, 1968, the court entered an order requiring

_ the Committee to answer interrogatories and pro-

duce records covering ‘a ten-year period, without

-Tuling on the- motion for summary judgment. The:

congressional appellees then moved, inter alia, to stay

all discovery against them and to dismiss the consoli-

dated suit against them by reason of their immunity

under Article I, See. 6, Cl. 1, of the United States

‘Constitution; this motion was supported by a “Claim

of Privilege and Exemption from Suit” from each of

the nine congressional defendants (5 R. 87-89). The

outcome of this motion was the decision and opinions

of June 26, 1968, in which the -eourt gave summary

judgment for the congressional appellees on their claim ©

' of privilege, and dismissed the action as to the prosecu-

torial appellees as “ancillary.” | :

' vidually or as‘a whole, fail to state .a claim ‘upon which —

relief can be granted. °- ahs .

7. The plaintiffs have an adequate remedy at law by de-

fense of their pending criminal cases, +

8. All issues are moot. ae

9. The three-judge court has no. jurisdiction to grant

mere declaratory relief,” ie

Id., p, 24. The answer of the prosecutorial defendants adopted

the answer of the congressional defendants, _

phe ay COME tale RRL arb sa taht IL nen «IE Sain etn don bn em

.

SP GL ates oe Oe MMe eed ot 5 Me

8

ARGUMENT

I. THE APPEAL SHOULD BE DISMISSED BECAUSE THE THREE-

_ JUDGE DISTRICT COURT LACKED J URISDICTION OF THE

PROCEEDINGS

The only legislative action which appellants chal-

lenge as unconstitutional and whgse enforcement,

operation and execution they scek to’ Testrain is Rule.

XI, Section 18, of the Rules of the House of Repre-

sentatives. It is this rule which confers the challenged

authority of the Committee to make investigations.

However, 28 U.S.C. 2282, on which appellants rely in

their demand for a three-judge district court, applies

in terms only to an ‘‘Act of Congress” (capitalization

in the original). The House Rule is not an Act of

Congress, and therefore the three-judge district court

was improperly convened. Krebs v. Ashbrook, 275 F.

Supp. 111, affirmed per curiam, No. 21,382, C.A.D.C.,

decided May 14, 1968; Powell v. McCormack, 395 F. 2d

577, 603, n. 54 (C.A. D. C.), petition for certiorari pend-

ing, No. 138. !

The result is not changed because of the historical

aecident that the House Rule was once embodied in

the Legislative Reorganization Act of 1946, 60 Stat.

812 (which was passed by both houses of Congress

and signed by the President), or because the Com-

mittee itself has often cited that Act as a source.of its

‘authority. The district court opinion in Krebs cor-

rectly points out, we believe, that the effect of that

action was dubious.even for the term of Congress in

which the statute was enacted. The Act states regard-

ing the rules, such as Rule XI, that they

Se St Se cl! Aa Oat ht Atty Pie tn cate bere LE a Thess a8. pe 4

9

* * * are enacted by the Congress:

(a) As an exercise of the rule-making power

of the * * * House of Representatives, respec-

tively * * *

_(b) With fall recognition of the ‘constitu-:

tional right of either House to change such

rules (so far as relating to the procedure in

such House) at any time, in the same manner

and to the same extent as in the case of any

other rule of such House. [60 Stat. 814].

This caveat, possibly required by Article I, Section V

of the Constitution,’ deprives the rules of the legisla-

tive force ordinarily associated with statutes, whose

‘terms cannot be changed by the action of a simple

majority of one House. |

Moreover, whatever effect the Reorganization Act

‘ might have been deemed to have had for the session

at which it was enacted, it is no longer the operative

source of the Rules of: the House of Representatives.

“Neither the House of Representatives nor its com-

7 mittees are continuing bodies.”’ Cf. Anderson v. Dunn,

6. Wheat. 204, 231; Marshall v. Gordon, 243 U.S. 521,

042. It is the practice of the House to adopt its

Rules—ineluding the Rule which establishes the Un-

American Activities Committee and defines the scope

of its authority—at the beginning: of each Congress.”

_Gojack v. United . States, 3840.9. 702, 707 n. 4; see

also, Barenblatt v. United States, 360 U.S. 109, 115, ©

“Each “House may determine the Rules of its Proceed-

ings * * *»

*To treat a Rule as embodied in the Reorganization Act

as an “Act of Congress” for the purpose of Section 2281, but:

not. later amendments added by the House alone, would create

an anomalous situation not easily resolved in practice.

Sm,

Vinee AR RR Gite a

10

and Watkins v.. United States, 354 U.S. 178, 201-203.

Although in adopting its rules the House. may ‘incor-

porate by reference the provisions of earlier rules and

the Reorganization Act—e.g., H. Res. 8, 89th Cong.,

Ist Sess, 111 Cong. Ree. 21, 25, the source of the

Committee’s authority inthe present case—the cur-

rent resolution is the operative act; the adoption of

prior rules is itself an exercise of the constitutional

authority of the House to make its own rules, and |

hence the only appropriate point of challenge.’ |

Passed by one house of Congress alone, without

Presidential approval, these resolutions do not qualify.

as “Act[s] of Congress.’’ There is no warrant for con-

struing those words in Section 2282 as encompassing

all legislative actions, and enlarging the category of

cases where three judges are required and an appeal

of right to this Court is allowed. See Swift & Co. v.

Wickham, 382 U.S. 111, 128. Like its complement,

Section. 2281 (Kennedy v. Mendoza-Martinez, 372

U.S. 144, 154), Section 2282 is “not ’* *.* a measure

of broad social policy to be construed with great

liberality, but * * * an enactment technical in. the

strict sense of the term and to be applied as such.’’

Phillips v. United States, 312 U.S. 246, 251. Just as the

word “statute” in Section 2281 has not been expanded

to include local ordinances or even enactments of the

*The Committee’s frequent reference to the Reorganization

Act as the source of its authority, “understandable as it is,

does not constitute an analysis of the legal situation.” Krebs,

supra, 275 F. Supp. at 117. In Gojack, supra, at 706-707, n. 4,

this Court rejected the notion that an authorization of a Com-

mittee . investigation by a previous Congress might carry for-

ward without renewal into a succeeding term. House rules

equally require such renewal if they are to have force.

11 ae

State legislature having only local application (€.9.,

Moody v. Flowers, 387 US. 97), so here, the term

“Act of Congress’’ can not appropriately be read: to

encompass rules promulgated by one House govern-

ing only its own internal procedures. _ 3

The result we suggest is fully consistent with the

limited purpose of Section 2282. The provision was |

designed to protect federal regulatory schemes, chiefly

of an economic nature. Kennedy v. Mendoza-M. artinez,

supra, at 154-155. No “regulatory scheme’”’ is involved

here. Rather, plaintiffs seek to enjoin the exercise of

legislative powers. That the resulting disruption would

be objectionable may be, as we argue below, a reason

to deny the possibility of prior restraint of the Con-

gress or its’ members, But it is not the-problem with

which Congress was: concerned when it enacted Sec- .

tion 2282, and that statute does not apply to this case.

If we are correct in our conclusion that this was

not an action “required * * * [to be] heard and deter-

mined by a district court of three judges,”’ the appeal .

does not lie here under 28 U.S.C. 1253. Nor is there

any other basis for a direct review by. this Court.” |

Accordingly, the present appeal may be dismissed for

*° Certiorari before judgment under 28 U.S.C. 1254(1) would

not seem available here since the case, at this peint, is in no

sense “in the court of appeals.” Moreover, even if the case were

there, it is doubtful whether this Court could properly treat

the papers filed here as petitions for certiorari, in the absence

of such a timely prayer. 28 U.S.C. 2103 is inapplicable because

.these are not appeals “improvidently taken from the decision

* * * of a United States court of appeals.” So far as we are

aware, the Court has never assumed that alternative certiorari.

jurisdiction existed when it determined that it lacked jurisdic-

tion on direct appeal because a three-judge court had been im-

Pd edb ade Sth Sidheaccion eR TANTS ae Ru eerie FeO ALY

‘. ‘

Reside innate ae AAT

12

‘lack of jurisdiction. We note, however,.that the time

_ within which to perfect appeals to the court of ap-

peals has now passed and that appellants’ failure to

follow that course is explained by that court’s erro-

neous ruling that the case must be heard by a statutory

court of three judges, from whose decision the appeal

would lie here. In the circumstances, it may be appro-

priate to vacate the judgment below so as to permit

the entry of a fresh decree by a single district judge

from which appellants. may perfect a timely appeal

to the Seventh Circuit. See, e. -J-, Moody v. Flowers,

supra, 387 U.S. at 104:

II. IN THE ALTERNATIVE, THE J UDGMENT BELOW SHOULD

BE AFFIRMED

‘Appellants have proceeded against both congres-

sional and prosecutorial defendants, seeking relief

both from specific consequences of the Chicago hear-

ings and from unspecified, future hearings which they

anticipate will be conducted by a like-minded Commit- .

_tee under’a grant of authority identical to that which

governed the. Committee during the 89th Congress.

For purposes of analysis, it will be helpful to deal

Separately (1) with.the two heads under which relief

is. sought and (2) with the two classes of defendants

against which relief is sought.

properly convened. See, ¢.g., Phillips v. United States, supra,

312 U.S. at 254; Moody v. Flowers, supra, 387 U.S. at 104.

At all events, we donot believe the special circumstances war-

ranting certiorari before judgmeht are present here. See Rule

20 of the Rules of this Court. Cf. Powell v.. McCormack, 387

U.S. 933.

13

A. RELIEF FROM THE EFFECT OF THE CHICAGO HEARINGS

‘With specific respect to the Chicago hearings, ap-

‘ pellants sought to restrain the holding of the hear- -

ings, to quash the subpoenas issued against them, to

declare the hearings (and the rule under the authority

of which they were conducted) void, and fo restrain

their indictment and prosecution for any contempt

alleged to have been committed at the hearings.

(2) With respect to the congressional defendants, these

demands are moot

The ‘Comimittes has already reported iia:

alleged’ contempts to the House of Representatives,

which has by resolution directed the Speaker to cer*

tify them to the United States Attorney, and the

%

Speaker has done so. The term of the 89th Congress .

has ended and, with it, any possibility of contempt

_proceedings against appellants before the House it-

self. Anderson v. Dunn, 6 Wheat. 204, 231. There is

nothing more the Congress or the Committee could do

with respect to the Chicago hearings; consequently,

there is no viable claim for equitable relief against the

congressional defendants. The = is 9 out

of their hands.

(2) With respect to the siilinaaiigibas defendants, all these :

matters are competent to be raised at appellants’ trials for con-

tampt, and there has been no showing of the entraordinary

circumstances required to justify equitable relief in advance of -

those trials

. This Court has stated and reaffirmed ‘‘[t]he eonneel

ale j is that equity will not interfere to prevent the en-

forcement of a criminal statute even though uncon-

stitutional. ”? Speilman Motor Sales v. Dodge, 295 U.S.

’

.

MELANOMA Oe ieiki Mech MRRP al deel ited ee ae Wed dp Bho

14

89, 95; Douglas v. City of Jeannette, 319 U.S. 157,

163-164; Dombrowski v. Pfister, 380 U.S. 479, 484— .

485. An exception has been recognized “on a showing

of danger of irreparable injury ‘both great and imme-

diate,’ ” 319 U.S. at 164, but threats of the type of in-

jury “incidental to every criminal proceeding brought

lawfully and in good faith” are insufficient to make

such a showing. Ibid. ar

Appellants rely upon Dombrowski v. Pfister, supra,

and similar cases in arguing that they fall within the

recognized exception. It is true that their case also

involves allegations of a. ‘chilling effect” on appel-

lants’ and others’ exercise of their First Amendment

Tights, and assertions that this effect is the result of

an overbroad enactment uncontained by acceptable

narrowing constructions. However, - appellants’ case

fails to match the circumstances of Dombrowski and

like cases in one crucial respect: the allegations of

“chill” entirely lack the personal concreteness which -

has characterized such allegations in previous cases

where the Court has found “a situation in which de-

fense of the State’s criminal prosecution will not as-

sure adequate vindication of constitutional rights,”’

380 U.S. at 485." Thus, in Dombrowski, there was an

** It is also significant that in each of the previous cases,

the statute challenged as vague directly governed the conduct

of those -subjéct to it. The rule here, on the other hand, es-

tablishes no rules of conduct as to which there might be

misapprehension, but simply enables the Committee to carry

on legislative business. Like the Constitution or a corporate

charter, its terms aro -necessarily copious. As this Court has

recognized, Watkins v. United States, 354 U.S. 178, 209, Baren-

blatt v. United States, 360°U:S. 109, 116-117, Wilkinson v.

United States, 365 U.S. 399, 407-408, Communism isa legiti-

15

active threat of repeated arrests, seizures, and pros- ~

‘ecutions of appellants under the challenged statute ;

in Terrace v. Thompson, 263 U.S. 197, there was a

serious cloud imposed on plaintiff's property rights

by the threat of prosecution; in Reed Enterprises v.

Corcoran, 354 F. 2d 519 (C.A.D.C.), plaintiff feared

-a multiplicity of prosecutions in distant venues as a

result of his distribution of allegedly obscene matter

through the mails; multiplicity of prosecutions, and

the high penalties entailed, were also decisive in Ex

parte Young, 209 U.S. 123; see also, United States v.

Wood, 295 F. 2d 772 (C.A. 5).

In contrast, appellants show no concrete basis for

personal fear of the future. There is no hearing pend-

ing at which appellants are required to appear, nor

has any showing been made that they are particularly

likely to be called before any hearings ,which might

be held in the future. Indeed, one cannot predict what

authority the 91st Congress or its House of Repre-

sentatives will confer upon the Committee on Un-

American Activities, who among the members of that

Congress will be appointed to that Committee,

whether they will authorize any investigations, on

what subjects and in what manner they will conduct

them, and whom they will call to testify. .Thus, appel-

lants are subj ect to no overhanging threat of future

action against them such as has characterized previous

cases where injunctive relief against prosecution has

~ been considered. No substantial impairment of appel-

mate subject for legislative inquiry; any ‘ ‘vagueness” in Rule .

XI can be overcome by Committee adherence to fair procedure ;

and the propriety of 4 particular inquiry is to be judged by

the practice of the Committee en it, not by its charter.

= a — se SS paces dee BOE.

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»

Wd TARO BRIA IR Sa

16

lants’ rights can be expected if they await disposition

of the criminal charges and subsequent review of any

conviction, and no substantial benefit will accrue to

them if the injunctive relief desired is afforded.” In

sum, no sufficient basis ‘for injunctive interference

with the trial of the pending contempt indictments has

been shown.

B. RELIEF FROM ANY PROCEEDINGS UNDER RULE XI IN THE FUTURE:

In addition to the specific relief requested with

respect to the Chicago hearings, appellants sought to.

restrain defendants, their agents, employees, attorneys

and ‘successors, “from the enforcement operation, or |

execution in any way whatever” of the Rule estab-

lishing the House Committee on Un-American Activi-

ties; in addition, they sought a declaratory judgment

that the Rule is void.

(1) As tothe congressional defendants, these prayers for

relief should not be entertained

The propriety of injunctive relief against the Con-

gress or some of its members * turns on considerations

%In Dombrowski, this Court was concerned with federal

interference in a State prosecution, and to that extent its deci.

sion accommodated considerations of federalism absent in the

present case. It has been assumed, however, that the decision

is equally applicable to . injunctions sought against federal ~

criminal prosecutions. Reed Enterprises v. Corcoran, supra. There

is, if anything, less reason. to interfere where, as here, trial and

appeal will be in courts particularly well acquainted with en-

forcement of federal rights; there is no reason to adopt a more

permissive standard for injunctive relief. | .

“The complaints name as defendants only the Congressmen

who were members of the Committee when the complaints were

filed, some of whom are no longer members of Congress. The —

5

17

of justiciability arid separation of powers, as well as —

legislative privilege. “It seems quite clear that as a

matter of basic general principle a court cannot inter-

fere with or impede the processes of the Congress by

proscribing anticipatorily its inquiries. .This is so not

only from the viewpoint of the Constitutional. separa-

tion of powers between two branches of the Govern-

ment but also from the practical viewpoint of simple

procedural efficienicy.”’ Pauling v: Eastland, 288 F. 2a

126; 128-129 (C.A.D.C.), certiorari denied, 364 U.S. .

900; cf. Yellin v. United States, 374 U.S. 109, 121;

and see-Fischler v. McCarthy, 117 F. Supp. 643 (S.D.

N.Y.), affirmed on other grounds, 218 F. 2d 164 (C.A.

2d) ; Methodist Federation for Social Action v. East-

land, 141 F. Supp. 729 (D.D.C.). The fact that such

. relief has not previously been granted, nor its availabil-

ity directly ruled upon by this Court, is itself an indi-

cation of its extraordinary nature. “The Congress is

.the legislative department of the government; the -

President is the executive department. Neither can be

restrained. in its action by the judicial department;

though the acts of both, when performed, are, in’

. proper cases, subject to its cognizance.”’ Mississippi

v. Johnson, 4 Wall. 475, 500. Whatever might be the

case should one or more Congressmen, with or -with-

out. congressional sanction, set themselves up in a

prayers for relief, however, implicate: a- larger group: agents,

employeés, .attorneys, others acting in concert with them, and

successors. One could not now be certain that if, for example,

‘the House sought to readopt Rule XI after an injunction had

been entered, each Congressman involved ‘would not be an

other. “acting in concert.” At all events, it is plain that the ©

- Congressmen were being “Sued in their Official capacity.

¢.

« pb the et CRRA |

| 18

plainly non-legislative enterprise, the prospective in-

vestigations of Communism which appellants seek to

enjoin. reflect legitimate legislative concern and in-

quiry. McGrain v. Daugherty, 273 U.S. 135, Baren-

-- blatt v. United States, 360 U.S. at 117-123; hence

claims for prior restraint of such inquiries should not

be entertained. Cf. Hutcheson v. United States, 369

_ U.S. 599, 619 (opinion of Harlan, J.).

Even putting aside appellants’ lack of concrete in-

terest in the questions they seek to raise, the con-

templated litigation i is essentially abstract. As we have

already noted, appellants cannot know whether there

will continue to be an Un-American Activities Com-

mittee, what its authority and internal rules of pro-

cedure will be, who will be its members, what if any

investigations ‘they. will authorize concerning w hat

subjects of inquiry, whom they will call, and how they

will in fact conduct themselves. Consequently, their

action, if allowed, will accomplish little more than to.

put a Committee of the House of Representatives on

trial, as it were, for its claimed past excesses and those

of its predecessors. Cf. Tenney v. Br seemed 341 U.S.

367,377.

To the extent it is distinct from the arguments just

outlined (which have been presented throughout this’

litigation), the defense ‘of the congressional appel- '

lants based upon the Speech and Debate Clause arose

when appellants’ proposed discov ery made it appar-

ent that there would be large-scale interference with

congressional business if the orders to produce were

to be complied with and the interrogatories answered."

*“The Clause confers personal immunity on each Member of

the House, but it is not a strittly personal right since its purpose

want ARS

RU Sie tll Sdn BRUT IOI Bea reese aA Rn elk so R I Bens oo 0

19

We suggest that: these effects argue strongly. for the

conclusion reached below—at’ least where, as here, a

preliminary determination has been made on the basis -

of public records that the legislature or its arm.-bas

been acting within the sphere of legislative cémpe-

tence. The Congress has “‘the right * * * to pursue its

legislative duties without judicial interference. * * *

‘The courts have no power of interference, unless and

until some event, such as arrest, indictment or con-

viction, brings an actual controversy into the sphere’:

of judicial authority. The courts cannot interfere

merely upon the petition of a person potentially liable

to some such event. It is clear * * * that the doctrine .

of the separation of powers prevails here.” Pauling v.

Eastland, supra, 288 F. 2d at 129. That rule, an-

nounced in a case where the court was declining to

grant an injunction against enforcement of an out-

standing subpoena of a Senate committee, is especially

_ persuasive - here, “where no adverse action against

appellants is in current prospect.

is to protect the legislative process * * *” Powell v. McCormack,

supra, 395 F.2d at 599. Accordingly, appellants’ argument that

the right was waived then not raised in the answer is wide of

the mark. A Congressman could net by negligence or even ad-

verterit silence waivé a right that is not his alone.

"In none of ‘the cases appellants cite was the claink_ for

relief based upan as ‘abstract a situation as now obtains with

respect to the congressional defendants in this case, or directed .

against_the Congress. Thus, in Zuscomd v. Bowker, 334 Mass.

468, 136 N.E. 2d 192, the ‘plaintiff sought to prevent publica-

tion of her name in a pending committee report; Bond vy.

Floyd, 385 U.S. 116, concerned a continuing dispute over plain-

tiff's right to a seat in the State’ legislature; Dombrowsiti v.

Pfister, supra, involved an active threat ‘of continued

enforcement.

“us

° “

*

trae Con Sad i ;

® -

vtec, ee SER Fe RAE REET Sat DLL ALO Bla te

Declaratory relief holding Rule XI to be invalid so

far as it concerns the Committee (even assuming it

would be appropriate for a three-judge district court .

to grant, but. see Kennedy v. M endoza-Martinez, 372

- U.S. 144, 154), would be no more appropriate than

the injunctive relief appellants seek. True, it avoids

the embarrassment to the Speech and Debate Clause

which would be implicit in an injunction, with its

threat of imprisonment or fine as penalty for dis-

obedience. However, it still puts the federal courts .

in the untenable position of voiding a congressional

rule on the basis of a prediction how a congressional

committee will behave -in the future, on behalf of

plaintiffs who are not subject to an immediate‘threat.

Judge Prettyman has forcibly stated one of the con-

siderations underlying the rule against declaratory

relief in this situation (Pauling v. Hastland, supra,

288 F. 2d at 129-130) :

Although on argument here Pauling coricedes

- that he could not obtain from a court an in-

junction against the contemplated action of the

Senate Subcommittee, or of the Senate, he con-

tends that a declaratory judgment in respect to

his rights and in respect to the validity of the

“contemplated action would not really interfere

with the Senate. But such a differentiation

seems to me to be without substance. It is un-

thinkable to me that, if the courts should hold

a specific directive of a Committee of the Con-

gress unconstitutional and’ void, the Committee °

would nevertheless attempt to enfores that di-

. rective. So, as I yiew it, a declaratory judg-

ment. _ would be as effective an impingement

21

. upon and interferencé with legislative proceed-

ings as a flat injunction would be. Thus I think

that a declaratory judgment respecting the

validity of contemplated Congressional action

would violate the doctrine of the sepatation of

powers and would be an illegal impingement

by the judicial branch upon the duties of the

_ legislative branch. cod et

In this context, courts should insist upon a strong

showing. of the “actual controversy” required by the

Declaratory Judgment Act, 28 U:S.C, 2201, before

intervening. That ingredient is laeking from the action

against the congressional appellees,” and the claim

against them - for declaratory relief was properly

denied. See Maryland Casualty Co. v. Pacific Coal &

Oil Co., 312 U.S. 270, 273."

© Whether the requested declaratory judgment would be ap-

propriate as against the prosecutorial appellees in connection

with the pending indictments is a question to be decided on the

same basis as appellants’ request for injunctive relief against

that prosecution. Eccles vy. Peoples Bank, 333 U.S. 426, 431,

and cases ‘cited. See discussion, supra, pp. 13-16, ‘

*' Two recent decisions in which actions for declaratory relief

were sustained against challenge reveal concrete interests on

the part of the plaintiffs which are lacking from the action

against the congressional appellees. In Evers v. Dwyer, 358

U.S. 202, plaintiff was told that his color required him to sit

in the rear of a bus and he was threatened with arrest; the

record showed that the bus company and municipal] officials

intended to’ continue actively the enforce the State statute re-

quiring such segregation until its constitutionality had finally | ‘

been adjudicated. In Beacon Theatres vy. Westover, 359 U.S.

500, plaintiff had been directly threatened with treble-damage

actions under the Antitrust Laws, and suffered continuing im-

pairment of its business.

——

eh ne deat pana aes

22

(2) As to the prosecutorial defendants, these prayers were

properly dismissed as ancillary

Appellants’ chief reliance regarding the dismissal

of the action against the Attorney General and the

United States Attorney is on two eases in which this

Court sustained actions against congressional staff

members, while dismissing actions against members

of Congress, Kilbourn v. Thompson, 103 U.S. 168, and

Dombrowski v. Eastland, 387 U.S. 82. In both cases

the Court refused to permit the staff members to

claim privilege under the Speech and Debate Clause,

and allowed the suit to proceed insofar as it sought

a damage recovery against them for the wrongs which

they, as individuals, had allegedly committed. We ©

agree that the prosecutorial appellees cannot claim the

shelter of the Speech and Debate Clause. But we sub-

mit that these members of the Exeeutive Branch

are not proper defendants on the claims for broad

relief against the future operation of the Committee

under Rule XI. 3

The ancillary nature of the claims against the pros-

ecutors was conceded in appellants’ successful argu-

ment to the court below on their motion for jomder.

Their argument, made after it- had been determined to

seek an indictment on the basis of the House Resolu-

tions, was that joinder was necessary to secure them

complete relief, Fed. R. Civ. P. 19(a), by protecting

them against prosecution for the contempts they were

alleged to have committed. Protection against the

pending prosecutions was the possible remedy avail-

able as against the prosecutors, and the only relief

requested against them.

23

It is plain that the Attorney General and the

United States Attorney for the Northern District

of Illinois would not be proper parties to a suit

seeking only declaratory and injunctive relief against

the future operation of the Committee under the au-

thority of Rule XI. Neither official is in any way

connected with the Committee or charged with ad- —

ministration of the Rule. Their participation becomes

relevant, if at all, only when, as in the present case,

the Committee has successfully moved the House of

- Representatives to ‘seek a contempt prosecution of

Some person alleged to have been contemptuous of the

Committee during the course of a hearing under the

Rule. If relief against future operation of the Com-

mittee under Rule XI were granted against them, it

could have no more than the peripheral effect of deny-

ing the Committee access to the. courts in contempt

matters.”® ‘Thus, the suit was properly dismissed in

this respect once it had been determined that it would

not lie against the congressional defendants. Williams

v. Fanning, 332 U.S. 490, 494; Dombrowski v. Bur-

bank, 358 F. 2d 821, 823 ( C.A.D.C.).

*® The House retains power directly to punish for contempt.

Anderson v. Dunn, 6 Wheat. 204; Jurney v. MacCracken, 294

U.S. 125.

Ot TE ARIE 8d HD RI ASU TTA IR Se

24

CONCLUSION

For the reasons stated, these appeals should be dis-

missed,” or the judgment below affirmed.

Respectfully submitted.

Erwin N. Grisw OLD,

Solicitor General.

J. Water YEAGLEY,

Assistant Attorney General.

KEVIN T. MARONEY,

LEE B. ANDERSON,

Attorneys.

OCTOBER -1968.

1” As noted earlier (supra, p. 12), if the Court should con- .

clude that it lacks jurisdiction to reach the merits, it may deem

it appropriate to vacate the judgment below to preserve: appellate

remedies, rather than simply dismiss the appeals.

U.S. GOVERNMENT PRINTING OFFICE: 1968