Opposition — Eastland v. United States Servicemen's Fund

Supreme Cour, U.S.

FILEDbD

AUG 7? 1974

— -—_—_—_—_—_—__—— PRR EE RODEN ROEE RK

IN THE

Supreme Court of the United States

- 73-1923

JAMES O. |}

ASTLAND, et al., Petitioners,

V

UNITED STATES SERVICEMEN'’S FUND, et al

COMMITTI

ON

UNITED STATES HOUSE

NATIONAI

COMMI

PEOPLES

COMMIT

UNITED STATES HOUSE OF

PROGRESSIVE LABOR PARTY, et

NTERNAL SECURITY OF THI

REPRESENTATIVES, et , Petitioners,

y

PEACE ACTION COALITION, et

EE ON

UNITED STATES HOUSI

COALITION

INTERNAL SECURITY OF THI

OF REPRESENTATIVES, et

al., Pet fioners,

y

FOR PEACE AND JUSTICE, et al

ON

INTERNAL SECURITY OF THE

REPRESENTATIVES, et al., Petit

oners,

JOINT BRIEF IN OPPOSITION TO THE

PETITION FOR WRIT OF CERTIORARI

NANCY STEARNS

c/o CENTER FOR CONSTITUTIONAL RIGHTS

853 Broadway

New York, N.Y. 1

JEREMIAH 8. GUTMAN

363 Seventh Avenue

New York, N.Y. 10001

PHILIP J. HIRSCHKOP

503 D St., N.W.

Washington, D.C.

BURT NEUBORNE

American ¢ | Liberties Union

22 East 40th St.

New York, N.Y. 10017

HOPE EASTMAN

imerican Civil Liberties Union

410 First Street, S.E

Washington, D.C

OPINIONS BELOW .....cceecsccceeveseeeeceees

JURISDICTION ....cesccecccccccvvcccssccsess

QUESTIONS PRESENTED ....ccceeceeeeeeeeeeees

CONSTITUTIONAL PROVISION INVOLVED .........

STATEMENT OF THE CASE .ccsecccscccececvcees

IMtrOduction...ccccccecceeeeeeseeeeeeees

slit Serre rrr rrr rr rrr rrrr rrr ere re eee eee

REASONS FOR NOT GRANTING WRIT ....eeeeeeees

1.The Opinion of the Court Below is in

Accordance with the Long Fstablished

Principles of Perlman v. United States..

II.The Information Sought by Petitioners

Herein Has Long Been Recognized as Being

Protected by the First Amendment........

IIlIl.There Is No Live Case Here........+-

|)

APPENDIX A “eee eeveeeveeeeeeeeeereeeeeeeeeneeeee

13

13

18

20

21

la

TABLE OF CASES

Page

Anderson v. Dunn, 6 Wheat 204 (1821)........ 21

Ansara v. Eastlani, 442 F.2d 751 (D.C.

Cir.,1971) *enereee e*eeeeneeeeeeeeeeeeeeeeeeeee 16

Couch v. United States, 409 U.S. 322 (1973). 18

Dombrowski v. Pfister, 380 U.S. 479 (1965)... ll

Donaldson v. United States, 400 U.S. 517

Spee ceceseeeseeeses se eeeeeeee se eeeneeeee 18

Flast v. Cohen, 392 U.S. 83 (1968)........ oo DB

Gibson v. Florida Legislative Investigating

Committee, 372 U.S. 539 (1962)........ 18 ,19

Gojack v. United States, 384 U.S. 702 (1966) 2)

Marshall v. Gordon, 243 U.S. 521 (1916)..... 21

McGrain v. Dougherty, 273 U.S. 135(1927).... 20

McSurely v. McClellan, 426 F.2d 664 (D.C.

Cir., oo ye eee see eeeeeeeneeneee 10

NAACP v. Alabama, 357 U.S. 449 (1958)..... 13,18

Perlman v. United States, 247 U.S. 7

Eee cocecececeeoce ere eee eee eee eee ern ee 14,15

Powell v. McCormack, 395 U.S. 486 (1969).... 10

Stamler v. Willis, 415 F.2d 1365 (7th Cir.,

1969), cert. denied sub nom Ichord v.

Stamler, 399 U.S. 929 (1970)............

1i

United States v. Gravel, 408 U.S. 606 (1972). 15

United States v. Nixon, U.S. (1974)

42 L.W. PPT TTrrrriiririrrrtT yt 14,17

United States v. Rumley, 345 U.S. 41 (1953).. 16

United States Servicemen's Fund v. Eastland,

488 F.2d 1252 (D.C. Cir., 1973).2,3,7,12,13,19

Watkins v. United States, 354 U.S. 178(1957)..16

CONSTITUTION AND STATUTES

First Amendment.........eeeeeeeeeeee+ 4,13,15,18

28 BeBeCe §516 see ee *eeeeneeenereeeneee *eneeneeeee “ere 5

28 8.8.6e §518... see eeeee seen eenvneeeeeeee *eneeeve 5

28 U.S.C. §519 eee eeeeee seen eeeee eeeeeneeeneeeene 5

OTHER AUTHORITIES

Annual Report of the House Committee on

Internal Security of the House of

Representatives, 1973, H.Rept. 93-771 ...... 21

Manual of Rules of House of Representatives,

93rd Cong., H.Doc. 384, 92nd Cong. 2d Sess..21

Stern & Gressman, Supreme Court Practice,

4th Ed. CIGES) ccccccccecceccceccoeescococose 6

iii

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

NO.

JAMES 0. EASTLAND, et al., Petitioners

v.

UNITED STATES SERVICEMEN'S FUND, et al.

COMMITTEE ON INTERNAL SECURITY OF THE

UNTTED STATES HOUSE OF REPRESENTATIVES ,« eg al.,

Petitioners :

Vv.

NATIONAL PEACE COALITION, et al.

COMMITTEE ON INTERNAL SECURITY OF THE

UNITED STATES HOUSE OF REPRESENTATIVES, et al.,

Petitioners

Vv.

PEOPLES’ COALITION FOR PEACE AND JUSTICE, et al.

COMMITTEE ON INTERNAL SECURITY OF THE

UNITED STATES HOUSE OF REPRESENTATIVES, et al.,

Petitioners

Vv.

PROGRESSIVE LABOR PARTY, et al.

JOINT BRIEF IN OPPOSITION TO THE PETITION FOR WRIT

OF CERTIORARI

OPINIONS BELOW

The opinion of the Court of Appeals in United

States Servicemen's Fund v. Eastland is reported at

488 F.2d 1252. (Pet. App. A, pp. la-65a). Respon-

dents’ applications to the Court of Appeals for

stays are not reported but two are set forth in

Petitioners’ Appendix; the June 4, 1970 opinion and

order (Pet. App. B, pp. 67a-68a); the July 28, 1970

opinion and order (Pet. App. C, pp. 69a-70a). An

additional emergency stay was granted by the Court

of Appeals on July 2, 1970 which is reproduced as

Res. App. A. |

The opinions of the District Court in United

States Servicemen's Fund v. Eastland denying res-

pondents' motion for a preliminary injunction and

denying a permanent injunction and respondents’

motion to compel testimony are not reported but

are set forth in Petitioners’ Appendix (Pet. App.

D, pp- 7la-80a and Pet. App. E, pp. 8la-84a).

JURISDICTION

The judgment of the Court of Appeals in United

aQe

States Servicemen's Fund v. Eastland was entered on

August 30, 1973. The judgment in the remaining

three cases was entered on October 26, 1973 in con-

formity with that in United States Servicemen's

Fund v. Eastland (Pet. App. G, pp.862-87a). On

January 23, 1974, the Court of Appeals denied a

petition for rehearing with a suggestion for re-

hearing en banc (Pet. App. H & I, pp. 88a-89a)

filed on sehalf of the Congressional defendants by

the United States. On April 18, 1974, Mr. Chief

Justice Burger extended the time for petitioning

for certiorari in all four cases to and including

June 22, 1974. The jurisdiction of this Court is

invoked under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Was the lower court correct in exercising

its power to consider the constitutionality of a

Congressional subpoena for the financial records

of a politically controversial organization, which

had been served on a third party, without requir-

ing that disinterested third party to risk con-

<=

tempt in order to gain review?

2. Was the lower court correct in concluding

that the financial records of a politically contro-

versial organization, which include the names of

contributors to that organization as well as the

names of individuals and groups receiving its fi-

nancial support, are protected by the First Amend-

ment?

3. When certiorari is souglt by or on behalf

of Committees or Subcommittees of the United

States Congress and the Solicitor General has

failed to file for that relief, should this Court

consider that application although the United

States is not properly before the Court?

CONSTITUTIONAL PROVISION INVOLVED

The First Amendment to the Constitution pro-

vides:

Congress shall make no law respecting

an establishment of religion, or pro-

hibiting the free exercise thereof; or

abridging the freedom of speech, or of

the press; or the right of the people

peaceably to assemble, and to petition

the Government for a redress of grievances.

abn

STATEMENT OF THE CASE

Introduction

Certiorari is sought by the Subcommittee on

Internal Security of the Committee on the Judici-

ary of the United States Senate and by the Commit-

tee on Internal Security of the United States

House of Representatives. Both committees, al-

though represented by the Department of Justice at

all stages below, are now napeenennes by counsel

other than the Solicitor General.

*/ Petitioners assert an interest on behalf of

the United States and the respective constitu-

ents of the bicameral Congress. It is the duty

of the Solicitor General to conduct litigation in

this Court “in which the United States is interes-

ted." 28 U.S.C. §518. “Except as otherwise author-

ized by law, the conduct of litigation in which

the United States, an agency or officer thereof is

a party, or is interested...is reserved to offi-

cers of the Department of Justice, under the direc-

tion of the Attorney General." [28 U.S.C. 516 (em-

phasis supplied)] who in turn “shall supervise all

[such] litigation...and shall direct all United

States attorneys, assistant United States attor-

neys, and special attorneys...." 28 U.S.C. §519.

There is no indication that counsel for peti-

tioners have been “authorized by law" so that in the

absence of the Attorney General through the Soli-

(fn. continues on next page)

@5<

This opposition to the granting of the Peti-

tion for a Writ of Certiorari is filed jointly by

the United States Servicemen's Fund, the National

Peace Action Coalition, the People's Coalition for

Peace and Justice and the Progressive Labor Party.

Four different subpoenas for organizational bank

records resulting in four different lawsuits are

the subject of the Petition herein. One subpoena

was issued by the Subcommittee on Internal Security

of the United States Senate, three were issued by

the House Committee on Internal Security.

In only the case of the United States Service-

men's Fund were evidentiary hearings held and full

(fn. continued from preceding page)

citor General, petitioners may not be properly be-

fore this Court. Even if there be some authoriza-

tion in an unrevealed Congressional resolution,

however, at least this Court can and should note

the extended time to file granted petitioners and

the last minute appearance by private counsel

reasonably infer that the Solicitor General deter-

mined that he would not seek certiorari because

of the absence of merit. See, Stern and Gressman,

Supreme Court Practice, 4th Ed. (1969), p. 151.

-6-

decisions rendered, the decisions in the other

cases, both by the District Court and the Court of

Appeals being of a summary nature, in conformity

with the Court of Appeals decisions in the United

States Servicemen's Fund v. Eastland, (488 F.2d

1252 (D.C. Cir., 1973)). For the purposes of sim-

plicity, respondents will therefore refer herein

only to the facts in United States Servicemen's

Fund v. Eastland, except where expressly noted.

FACTS

On or about April 20, 1970, the Su»committee

on Internal Security of the United States Senate

(hereinafter, the Subcommittee) served a sweeping

subpoena on the Chemical Bank of New York demand-

ing the production of

+ « +» any and all records appertaining

to the United [States] Servicemen's Fund

such records to comprehand papers, corres-

pondence, statements, checks, deposit slips

and supporting documentation, or microfilm

*/ The original subpoena and the resolution author-

izing it incorrectly named the organization.

The resolution was subsequently corrected and the

subpoena re-issued. See page 9 » below.

afe

thereof within your control or custody

or within your means to produce.

The United States Servicemen's Fund (herein-

after USSF) is a non-profit tax exempt corporation

which is dedicated to the furtherance of the wel-

fare of persons who are serving in the military.

Amongst the activities it supports financially are

G.I. coffeehouses, newspapers, entertainment, and

civilian legal representation for military person-

nel.

Its bank records, subpoenaed by the Subcommit-

tee, contained the names of USSF's contributors.

They also contained the names of all individuals or

projects which received financial support from the

organization.

Upon notification by Chemical Bank of the Sub-

committee subpoena, respondent USSF filed an action

for declaratory and injunctive relief in the United

States District Court for the District of Columbia.

Because of a technical error in the subpoena, it

was withdrawn and the civil action dismissed with-

out prejudice to the respondents to file a new ac-

tion should a new subpoena be served.

A new subpoena was issued on May 26, 1970

returnable June 4, 1970. Respondents therefore

reinstated their federal action, amending their

complaint to seek declaratory and injunctive re-

lief against the new subpoena. They sought a tem-

porary restraining order which was denied on June

1, 1970, on the grounds that the court was without

subject matter jurisdiction, that plaintiffs lacked

Standing to sue, and that plaintiffs failed to

demonstrate the probability of success on the

merits. The court, however, did not dismiss the

complaint. In an emergency appeal to the Court of

Appeals, a stay of the subpoena was granted on the

morning of the return date, June 4, 1970, "...

until the district court has an opportunity to

fully consider and to act..." because of the...

serious constitutional issues...presented by this

litigation which require more time than is pres-

ently available for proper consideration."

On June 8, 1970 petitioners applied to the

-9-

Court of Appeals with a suggestion for a rehearing

en banc. On June 24, 1970, all parties were in-

formed that there was not a majority of the cir-

cuit judges in favor of the requested rehearing.

On June 30, 1970, after an evidentiary hearing,

the District Court denied respondents’ motion for

a preliminary injunction on the grounds that irre-

parable injury had not been established, and that

there had been insufficient showing of probable

* /

success at a full trial. (Pet. App. D)

*/ The District Court also considered defendants-

petitioners’ contentions that (1) the defendants

in the case are immune from suit; (2) that plain-

tiffs lack standing to object to the challenged

subpoena; (3) that the complaint raises a non-jus-

ticiable issue; and (4) that the complaint fails

to state a claim upon which relief can be granted.

The court disposed of points (1) and (2) stating

"Defendants' first two grounds merit little discus-

sion," citing Powell v. McCormack, 395 U.S. 486

(1969); Flast v. Cohen, 392 U.S. 83 (1968); Mc-

Surely v. McClellan, 426 F.2d 664 and Perlman v.

United States, 247 U.S. 7, 12-13 (1918). See, Pe-

titioners Appendix, p. 73a. The court then proce-

ded to dispose of defendant's third and fourth con-

tentions concluding the issues presented by plain-

tiffs are justiciable and that the courts are

able to grant the relief requested by plaintiffs

relying on Powell v. McCormack, supra; Stamler v.

(fn. continues on next page)

-10-

vestigating committee on the fundraising capability

Respondents immediately appealed from the deni-

of a politically controversial organization such as

al of a preliminary injunction and again the Court

each of the respondents now before this Court.

of Appeals issued an emergency stay on July 2, 1970,

United States Servicemen's Fund v. Eastland, supra,

pending further consideration. Then, on July 28,

7 488 F.2d at 1266. (Pet. App. A, pp.26a and 27a.)

1970, the Court extended the stay writing that "the

On October 22, 1971, the District Court issued

final judgment is likely to be appealed whichever

its opinion and order, making no new findings of

way the court rules" and that appeal from the deni-

fact, referring back to its opinion of June 30,

al of the preliminary injunction could be consoli-

1970 and denying respondents’ motion for a perma-

dated with the appeal from the final determination

nent injunction. Be referring back to its earlier

of this action." (Pet. App. C)

opinion and order, the District Court reaffirmed

A hearing on the merits was held on February

its power to rule on the constitutional questions

23, 1971. Testimony was presented concerning the

before it, but denied relief on the basis of the

50% drop in contributions to the organization fol-

facts presented. (Pet. App. E)

lowing the service of tie subpoena as well as tes-

Respondent USSF then filed a consolidated

timony from expert witnesses concerning the ‘“devas- */

appeal in the Court of Appeals. On August 31,

tating effect" of a subpoena of a congressional in-

*/ USSF appealed simultaneously from the denials

(fn. continued from preceding page) of temporary, preliminary and permanent relief

. by the District Court. Its appeals were heard to-

Willis, 415 F.2d 1365 (7th Cir., 1969), cert. de- gether with the appeals of the House Committee on

nied sub nom Ichord v. Stamler, 399 U.S. 929 (1970); International Security from the issuance by United

and Dombrowski v. Pfister, 380 U.S. 479 (1965). States District Judge George L. Hart of prelimin-

(Pet. App. D, pp. 7la-80a). ary injunctions against its subpoenas for the

(fn. continued on next page)

afin

-12-

1973, that Court reversed the judgment of the Dis-

trict Court and held that:

The showing made by the plaintiffs clearly

meets the standards found to exist in

those cases in which the Supreme Court

has determined that the First Amendment

was violated. See NAACP v. Alabama and

other cases cited. USSF v. Eastland,

supra at p. 1267.*/ (Pet. App. A, p.29a)

It is of that opinion of the Court of Appeals

that petitioners seek review.

REASONS FOR NOT GRANTING THE WRIT

I. THE OPINION OF THE COURT BELOW IS IN

ACCORDANCE WITH THE LONG ESTABLISHED

PRINCIPLES OF PERLMAN v. UNITED STATES.

(fn. continued from preceding page)

bank records of National Peace Action Coalition,

People's Coalition for Peace and Justice, and Pro-

gressive Labor Party.

*/ The Court of Appeals agreed with the District

Court that there was jurisdiction over the sub-

ject matter, the issue was justiciable and that

there were parties-defendants available who were

not immune from suit.

Judge MacKinnon, who dissented from the prior

grant of emergency relief also dissented from the

final opinicna.

=—{

The Subcommittee, in its Petition for Certio-

rari has attempted to characterize the opinion be-

low as a dramatic break from judicial practice by

reviewing the constititionality of congressional

committee subpoenas without requiring the sub-

peonaed party to submit to contempt. In fact the

opinion below is fully consistent with the prin-

ciples established by this Court as early as 1918

in Perlman v. United States, 247 U.S. 7 (1918).

Only this term this Court reasserted that there

are some few situations when the Federal Courts must

review subpoena prior to contempt. In the case of

United States v. Nixon, U.S. (1974), 42 L.W.

5237, 5240, this Court stated as a threshold matter:

The requirement of submitting to contempt,

however, is not without exception and in

some instances the purposes underlying the

finality rule require a different result.

For example, in Perlman v. United States,

247 U.S. 7 (1918), a subpoena had been

directed to a third party requesting certain

exhibits; the appellant who owned the exhi-

bits, sought to raise a claim of privilege.

The court held an order compelling produc-

tion was appealable because it was unlikely

that the third party would risk a contempt

situation in order to allow immediate review

of the appellant's claim of privilege. Id.

-l4-

at 12-13. That case fell within the

‘limited class of cases where denial of

immediate review would render impossible,

any review whatsoever of an individual's

claims. United States v. Ryan, supra, at

533.

This case is one of the “limited class of

cases" this Court mentioned for it arose as a re-

sult of a third party subpoena as in Perlman. Just

as in Perlman, respondents sought court review of

the subpoenas to wrotect their interests - here,

the First Amendment rights of their supporters.

The fact that the subpoenas were issued by a

congressional subcommittee in no way diminished

the necessity or appropriateness of court review

at the stage that it was granted. For as Mr. Jus-

tice White noted in United States v. Gravel, 408

U.S. 606 (1972):

- + «no prior case has held that Members

of Congress would be immune if they ex-

ecuted an invalid resolution . .. or, if

in order to secure information for a hear-

ing themselves seized the property or in-

vaded the privacy of a citizen. Neither

they nor their aides should be immune from

liability in such circumstances. 408

U.S. at 621. (emphasis added)

-15-

Thus, the Committee's assertion of total immun-

ity from judicial review is demonstrably baseless.

It is plain that court review of congressional

committee subpoenas has always been available.

United States v. Rumley, 345 U.S. 41 (1953); Wat-

kins v. United States. 354 U.S. 178 (1957). The

only question has been the timing of that review.

Had the Subcommittee sought to obtain the member-

ship records or contributors lists directly from

USSF, respondent could have obtained judicial re-

view by refusing to comply with the subpoenas and

challenging the constitutionality of the subpoenas

in a contempt proceeding. As both the Court of

Appeals and the government recognized in Ansara v.

Eastland, 442 F.2d 751, 753 (D.C. Cir., 1971), here

that route was not available to respondents since

they were not subpoenaed directly ‘at “would have

no way to claim their constitutional protections

at the time of the committee's questioning."

As the Court below correctly noted:

Here, in this case we have the case of

-16-

which is distinguished by this Co_rt in

both Sanders and Ansara and apparently

by the government in its argument in the

latter case. Here the plaintiffs have no

alternative means to vindicate their

rights. They cannot contest a subpoena

issued on the Chemical Bank before the

Committee or before the Senate, and they

cannot force the bank's uninvolved offi-

cials to run the risk of contempt cita-

tions and criminal trials to aid the plain-

tiffs in establishing their First Amend-

ment Rights. 488 F.2d 1252 at 1260.

Here, because the subpoenas were served on third

parties, the normal route of review was not avail-

able. "[D]Jenial of immediate review would [have]

render[ed] impossible any review whatever of an

individual's claims."" United States v. Nixon,

supra, since the third party banks could not have

been expected to resist the subpoenas in order to

raise respondents’ claims. Therefore, respondents util -

ized, and the court below granted, the only re-

view available.

The opinion of the Court below will not,

therefore, as petitioners contend, “open the door

to lawsuits that would cripple the process of le-

gislative inquiry." (Petition, p. 12) It will

ai Jo

merely reach those situations where the legislature

attempts to evade court review by issuing indirect

subpoenas to third parties who cannot be expected

to run the risk of contempt to protect the consti-

tutional rights of the real party at interest, guar-

anteeing federal review in those few instances when

the normal route of review is not available.

II. THE INFORMATION SOUGHT BY PETITIONERS

HEREIN HAS LONG BEEN RECOGNIZED AS

BEING PROTECTED BY THE FIRST AMENDMENT.

Petitioners have sought to charactierize the

information they subpoenaed as simple financial

records which fall within the principles of Donald-

son v. United States, 400 U.S. 517 (1971) and Couch

v. United States, 409 U.S. 322 (1973).

In fact, the information sought is plainly

First Amendment protected and this case falls

squarely within the principles of such well estab-

lished cases as Gibson v. Florida Legislative In-

vestigating Committee, 372 U.S. 539 (1962) and

NAACP v. Alabama, 357 U.S. 449 (1958).

For the information in question is the func-

tional equivalent of membership lists - the names

-18-

and in many cases, addresses of the financial sup-

porters as well as individuals and organizations

receiving the financial support of a politically

controversial organization. As the court below

pointed out:

The right of voluntary associations, es-

pecially those engaged in activities which

may not meet with popular favor, to be

free from having either state or federal

officials expose their affiliation and mem-

bership absent a compelling state or fede-

ral purpose, has been made clear a number

of times. See NAACP v. Alabama, 357 U.S.

449; Bates v. Little Rock, 361 U.S. 516,

Louisiana ex rel Gremillion v. NAACP, 366

U.S. 293 (1961); Gibson v. Florida Legis-

lative Committee, 372 U.S. 539 (1962);

Pollard v. Roberts, 393 U.S. 14 (1968)

affirming the judgment of the three-judge

district court for the Eastern District

of Arkansas, 283 F. Supp. 248 (1968).

United States Servicemen's Fund v. East-

land, supra, 488 F.2d at 1264. (Pet. App. 24a)

In Gibson, supra, a Florida state legislative

investigating committee first subpoenaed the entire

membership list of the Miami Branch of the National

Association for the Advancement of Colored People,

alleging that the organization was infiltrated by

the Communist Party. When that demand was invali-

-19-

dated by the Florida Supreme Court, the committee

required the organization's president to appear

with the list and answer questions regarding spe-

cific members. This Court, recognizing the protec-

ted nature of the membership list, reversed Gibson's

contempt conviction after he refused to comply with

the committee's demands. Even Justice Harlan,

joined by Justices Clark, Stewart and White dis-

senting in that case, implied that the original

broadside subpoena which was invalidated by the

Florida Supreme Court and which was similar to the

sweeping subpoena involved herein would be in vio-

lation of the First Amendment rights of the contro-

versial organization and its members. Gibson v.

Florida Legislative Investigating Committee, supra

at 582.

III. THERE IS NO LIVE CASE HERE.

Normally this Court will consider a constitu-

tional issue when it is absolutely necessary - when,

for example, the controversy is a live one. Here,

the subpoenas in question are four years old, and

-19-A

it would appear that whatever the Subcommittee's

interest in USSF's records, their investigation of

the respondent organizations has long been dead.

In fact, prior to filing the Petition for Certio-

rari herein, the attorney for petitioners Eastland,

et al., found it necessary to ask attorneys for

respondents whether the United States Servicemen's

Fund, whose bank records they had subpoenaed, was

still alive. Certainly if the senator and his Sub-

committee had continued any real investigation of

the respondent organization, they would have been

in possession of that most basic information which

is available from sources other than bank records.

One can only conclude that no live investigation

is in process, and that the continued interest of

petitioners is at best theoretical. In addition,

there is a substantial question of mootness a?

*

respect to the subpoenas of the House Committee.

*

*/ There has been no authorization of these inves-

tigations by the House since 1970. Since nei-

ther the House not its Committees are continuing

bodies, McGrain v. Dougherty, 273 U.S. 135 (1927);

(fn. continues on next page)

-20-

CONCLUSION

The opinion of the court below, which peti-

tioners sought to characterize as a radical depar-

ture from prior judicial tradition is merely an

(fn. continued from preceding page)

cf. Anderson v. Dunn, 6 Wheat 204 (1821); Marshall

v. Gordon, 243 U.S. 521 (1916), an investigation

must be authorized during the term in which it is

pursued, Gojack v. United States, 384 U.S. 702, 707

(1966). Although Rule eleven of the Rules of the

House (which establishes the Committee on Internal

Security adn defines the scope of its authority),

has been adopted at the beginning of each session

since the subpoenas were issued, there has been no

reference to any of the three organizations whose

banks were subpoenaed in 1970. See 1973 Annual

Report of the Committee on Internal Security of

the House of Representatives, H. Rept. 93-771.

Furthermore, it is clear that all House papers

die at the end of each session, Rule 26 & 36, Man-

ual of Rules of House of Representatives, 93rd

Cong., #384, 92d Cong., 2d Session, 12994. Since

these 1970 subpoenas have never been renewed by

the Committee they are void and can have no effect

on any of these organizations. Therefore, the con-

troversy between the House Committee and the sub-

poenaed organizations is moot.

@2le-

application of established law as articulated in

Perlman v. United States, supra, as reaffirmed in

United States v. Nixon, supra, and Gibson v. Flor-

ida State Legislative Investigating Committee and

the many other opinions of this Court setting forth

the principles which apply where First Amendment

rights are at stake.

Finally, the cases themselves are at best dorm-

ant, if not completely dead.

Therefore, respondents respectfully urge the

Petition for Certiorari herein to be denied.

Respectfully submitted,

NANCY STEARNS

c/o Center For Constitutional Rights

853 Broadway

New York, N.Y. 10003

(212)674-3303

JEREMIAH S. GUTMAN

363 Seventh Avenue

New York, N.Y. 10001

(212) 736-2226

BURT NEUBORNE

American Civil Liberties Union

22 East 40th St.

New York, N.Y. 10017

(212)725-1222

220

August,

1974

PHILIP J. HIRSCHKOP

503 D Street, N.W.

Washington, D.C.

HOPE EASTMAN

American Civil Liberties Union

410 First Street, S.E.

Washington, D.C.

Attorneys for Respondents

-23-

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 24,412 Sept. Term,1969

United States Servicemen's Fund,

et al., Civil Action 1474-70

Appellants,

Vv.

James 0. Eastland, et al.,

APPENDIX Respondents.

Before:Wright, Leventhal and MacKinnon

Circuit Judges,

in Chambers

ORDER

On consideration of appeliants' motion for

an emergency stay and for a hearing, and of

appellees’ opposition filed with respect thereto,

and to afford an opportunity for this Court to

consider the motion more fully, it is

ORDERED by the Court that enforcement of

and compliance with the subpoena issued by the

Subcommittee on Internal Security of the Committee

on the Judiciary of the United States Senate on

the Chemical Bank of New York Trust Company for the

production of records concerning the account of

the United States Servicemen's Fund on May 26, 1970,

is stayed pending further order of this Court.

Per Curiam

Judge MacKinnon dissents.