Petition — Clancey v. United States House of Representatives

IN THE

Supreme Court of the United States). 0:

October Term, 1979

ee

MICHAEL PATRICK CLANCEY,

Petitioner,

VS.

THE UNITED STATES HOUSE OF REPRESENTATIVES; CARL ALBERT,

individually and in his official capacity as Speaker of the United States House

of Representatives; JOHN J. FLYNT, JR., individually and in his official capa-

city as the Chairman of the Committee on Standards of Official Conduct for

the United States House of Representatives; and ANDREW J. HINSHAW,

individually and in his official capacity as Congressman in the United States

House of Representatives,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL PATRICK CLANCEY ;

25283 Cabot Road, Suite 201 ial

Laguna Hills, California 92653

(714) 770-1101 \/

(°

Petitioner

Dean-Standefer, 326% Main St., Huntington Beach, Ca. 92648 - (714) 536-7161

i

TOPICAL INDEX

Petitioner prays for issuance of Page

a Writ of Certiorari to review judgment

of United States Court of Appeals for

GS ales oh koe bes e's ave ws ee ]

NE i eet aes 5 ‘4 Abo kd eo oe 2

I sa ce aoa k GC a he poe Biwi kd obs 2

CS wen dv ele 2

House of Representatives Rule Involved ........ 3

Constitutional Provisions Involyed ............ +

Se nar 4

Reasons for Granting the Writ ................ 6

NS leas ry uy fo SW als 64% occa oles 13

Index to Appendixes

“4 Opinion of the Court Below

ye Constitutional Provisions Involved

TABLE OF AUTHORITIES CITED

Cases

Board of School Commissioners of the

City of Indianapolis, et al. v. Jacobs,

RE a 12

Carroll et al. v. President and Commissioners

of Princess Anne, et al., 393 U.S. 175

I IOP Sot ENE ans ge 1}

ii

TABLE OF AUTHORITIES CITED

Cases (cont'd)

Dunn v. Blumstein, 405 U.S. 330(1972) ......

Federal Trade Commission v. Goodyear

Tire and Rubber Company,

8 ea hy | Ce eae

Gray v. Sanders, 372 U.S. 368 (1973) ..........

Moore et al. v. Ogilvie, Governor of Illinois,

Oe i Fe ae Ae) kd eww veces p ae

National Labor Relations Board v. Jones

and Laughlin Steel Corporation,

en a PENT. a ahaa aid ob owed a avid

National Labor Relations Board v. Pennsyl-

vania Greyhound Lines, Inc.,

PR et” | er a

Nebraska Press Association v. Stuart,

BaP SOLED > abe vase 5 0 0s 8608 ope

Powell, Adam Clayton v. Speaker of the

House McCormack, 395 U.S. 486 (1969)

Roe v. Wade, 410 U.S. 113 (1973) ............

S.E.C. v. Medical Committee for Human

Rights, 404 U.S. 403 (1971) ............

Southern Pacific Terminal Company v.

The Interstate Commerce Commission,

Sa eee RD a ks sv adins eee kh >

Storer v. Brown, 415 U.S. 724 (1974) ..........

United States v. Trans. Missouri Association,

Ce EEE? ony ie ae a ak aha eae

9, 10

10

12

12

12, 13

6,7

10

11,12

iii

TABLE OF AUTHORITIES CITED

Cases (cont'd) Page

United States v. W. T. Grant Company,

DER A OE CERES) > See pee be eee ee ene. 10, 11

Walling v. Helmerick and Payne, Inc.,

ee, ee OOD 5 y vias 4a OR Oca ecnce ne > 12

Weinstein v. Bradford, 423 U.S. 147(1975)__.... 12

Statutes (United States)

Title 28, United States Code

fo gs lh QPS ASE ora eee e cece eeeee 2

United States Constitution

SE Da ck Vea an ioee belies 4,5, 13

Article I, Section 6, Subsection] ............ 4,5

Rules

House of Representatives, Rule 43,

eer ae 2, 35 4, 6 9, 11, 12, ¥3, 14

Federal Rules of Appeal

Do Reh ien ed hae k oie cl eee 2

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

PU cceeaad

MICHAEL PATRICK CLANCEY,

Petitioner,

VS.

CARL ALBERT, et al,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

To the United States Supreme Court, October Term 1979:

The petitioner, MICHAEL PATRICK CLANCEY,

prays that a Writ of Certiorari issue to review the opinion

of the United States Court of Appeals for the Ninth Cir-

cuit filed July 5, 1979, affirming the judgment of the

United States District Court for the Central District of

ii

Be,

California which dismissed the action on the basis of moot-

ness. This case involves issues relating to the constitution-

ality of Rule 43, paragraph 10, of the U. S. House of Repre-

sentatives Code of Official Conduct.

OPINION BELOW

The memorandum opinion of the United States Court

of Appeals for the Ninth Circuit was filed July 5, 1979. A

copy of that memornadum opinion appears in the appendix

hereto as Appendix “A’”’ (Appendix pp. | - 3). No formal

opinion was rendered by the United States District Court

for the Central District of California although a judgment

of dismissal was granted in this matter by said court.

JURISDICTION

A ruling of the United States Court of Appeals for the

Ninth Circuit was entered on July 5, 1979. A copy of the

opinion is appended hereto (Appendix “‘A’’). The jurisdic-

tion of the Supreme Court is invoked pursuant to Title 28,

United States Code, Section 1254(1) and Rule 22(3), Fed-

eral Rules of Appeal.

QUESTIONS PRESENTED

1. Where an individual has been elected to the

United States House of Representatives and has subse-

quently been denied voting rights by that body for

misconduct, does the election of a successor render

moot an action for declaratory relief regarding the

el

constitutionality of tne rule that was applied to deny

such rights?

2. Does the case herein involve a probable

recurring issue?

3. Whether the practical effect of Rule 43, para-

graph 10, of the House Code of Official Conduct may be

construed as taxation without representation, in violation

of constitutional rights and privileges bestowed upon citi-

zens of the United States of America?

4. Did the appellate court err in affirming the

judgment of dismissal of the District Court on the grounds

of mootness?

HOUSE OF REPRESENTATIVES

RULE INVOLVED

House Rule 43, paragraph 10, states:

‘““A Member of the House of Representatives

who has been convicted by a court of record

for the commission of a crime for which a

sentence of two or more years’ imprisonment

may be imposed should refrain from participa-

tion in the business of each committee of which

he is a member and should refrain from voting

on any question at a meeting of the House, or

of the Committee of the Whole House, unless or

until judicial or executive proceedings result in

reinstatement of the presumption of innocence

or until he is re-elected to the House after the

date of such conviction.”

an

CONSTITUTIONAL PROVISIONS INVOLVED

Set forth as Appendix ‘‘B” hereto (Appendix pp. 4

and 5) are the following constitutional provisions:

Article I, Section 5;

Article I, Section 6, Subsection 1.

STATEMENT OF THE CASE

On or about January 26, 1976, Congressman

ANDREW J. HINSHAW (40th Congressional District)

was convicted of two counts of felony bribery. Because

of his conviction, and in accordance with Rule 43, para-

graph 10, of the House Code of Official Conduct, Con-

gressman HINSHAW was no longer allowed to vote or

participate in Congressional matters, although he was still

allowed to retain his seat in the House of Representatives

and continued to draw his full salary and benefits.

Petitioner herein contends that said Rule 43, para-

graph 10, of the House Code of Official Conduct is uncon-

stitutional and is in contravention of Article I, Section 5

(Appendix p. 4) of the United States Constitution and

other provisions of said Constitution, and asserts that it

imposes a taxation upon himself and other citizens of the

said 40th District without representation, since, as taxpayers,

they are paying for services which they are not receiving.

The petitioner further contends that the aforesaid

House resolution is totally defective and inappropriate

and that it should be replaced by a House proposal to

amend the Constitution of the United States to provide

additional qualifications for members of Congress in addition

ew

to those prescribed in Aritcle I, Section 5, and therein

to establish a Code of Ethics which shall create a method

and guidelines through which a Member of Congress can

be expelled and replaced for certain wrongdoings.

On or about May 25, 1976, petitioner filed a com-

pliant in the United States District i Central District

of California, for declaratory relief against CARL ALBERT,

Speaker of the United States House of Representatives,

JOHN J. FLYNT, JR., Chairman of the Committee of

Standards of Official Conduct for the United States House

of Representatives, and the UNITED STATES HOUSE OF

REPRESENTATIVES, alleging the above. On July 15,

1976, the complaint was amended to include the previously

mentioned Congressman ANDREW J. HINSHAW and

EDMUND J. HINSHAW, JR., Clerk of the United States

House of Representatives, as defendants.

The Honorable Judge William P. Gray entertained

three motions to dismiss. In a judgment filed on July 23,

1976, he denied a motion (made on the ground that the

action was barred by sovereign immunity) to dismiss the

cause against the HOUSE OF REPRESENTATIVES and

granted a motion to dismiss defendants CARL ALBERT

and JOHN J. FLYNT, JR. on the ground that the action

against them was barred by the Speech and Debate Clause

(Article I, Section 6, Subsection 1 [Appendix pp. 4 and

5]) of the United States Constitution. On September 30,

1976, the court granted a motion to dismiss the HOUSE

OF REPRESENTATIVES on the ground that the action

was barred by sovereign immunity.

Prior to the hearing of the Third Motion to Dismiss,

Congressman ANDREW J. HINSHAW was defeated in his

—6—

bid for re-election to the House of Representatives. The

Honorable Judge Gray, in a judgment of dismissal filed

April 4, 1977, after a hearing, ruled the action moot.

On or about July 5, 1979, the United States Court of

Appeals for the Ninth Circuit filed an opinion affirming

the judgment of the District Court (Appendix pp. | - 3).

REASONS FOR GRANTING THE WRIT

The fact that Congressman HINSHAW has been

replaced in Congress is not determinative of whether or

not said petitioner is entitled to an eventual hearing on the

merits of petitioner’s complaint, in that the case involves

a potential and probable recurring issue and therefore is

not moot.

If this issue can be mooted by the election of a

successor to the Congressman sanctioned by use of House

Rule 43, paragraph 10, the petitioner, himself, and other

citizens could well be similarly affected by the application

of the rule to a similar situation sometime in the future,

and since the undesirable effect of House Rule 43, para-

graph 10, is of short duration compared to the time re-

quired to litigate the issue, the use of the rule could again

successfully evade judicial challenge.

If the allegedly invalid law or practice continues so

that the issue is likely to recur, either with respect to a

party or a class he represents, the mere passage of time

required to obtain judicial review does not render the

controversy moot.

In the case of Southern Pacific Terminal Company

v. The Interstate Commerce Commission, 219 U.S. 498,

Pe. a

515, 55 L. Ed. 310, 31 S. Ct. 279 (1910), the United

States Supreme Court set down a standard for escaping

mootness, saying an issue is not moot if it is “capable

of repetition, yet evading review.”’ The issue in that

case regarded an order of the Interstate Commerce Com-

mission which, by its terms, had already expired. The

Court said, at page 515, that the questions “involved in

the orders of the Interstate Commerce Commission are

usually continuing (as are manifestly those in the case

at bar) and these considerations ought not to be, as they

might be, defeated by short-term orders, capable of repe-

tion, yet evading review, and at one time the government,

and at another time the carriers, have their rights deter-

mined by the Commission without a chance of redress.”

Moore ei al. v. Ogilvie, Governor of Illinois, et al.,

394 U.S. 814, 816, 23 L. Ed. 2d 1, 89 S. Ct. 1493 (1969),

involved independent candidates for presidential electors

t ‘ting the validity of an Illinois statute governing the

signing of petitions. The United States Supreme Court

stated that although the election had already been held,

and there was no possibility of granting relief to the

appellants, the burden remains and controls future elec-

tions. “The problem is therefore ‘capable of repetition,

yet evading review,’ . . . the need for its resolution thus

reflects a continuing controversy in the federal-state area

where our ‘one man, one vote’ decisions have thrust... .”

The case herein is similar, in that as long as the United

States House of Representatives maintains the present rule

with regard to Congressional misconduct, the burden that

tule would place on the citizens of the corresponding

district would be capable of repetition. The rule covers

lien

future situations of similar nature to the case herein, and

thus a continuing controversy exists.

In Nebraska Press Association v. Stuart, 427 U.S.

539 (1976), the news media was restrained from publish-

ing confessions made by the defendant in a certain murder

trial. The United States Supreme Court said that although

the order had expired, the action was nevertheless not moot.

Furthermore, the Court stated:

“The Court has recognized, however, that juris-

diction is not necessarily defeated simply because

the order attacked has expired, if the underlying

dispute between the parties is one ‘capable of

repetition, yet evading review’ . . . if we decline

to address the issues in this case on grounds of

mootness, the dispute will evade review, or at

least be considered plenary review in this Court,

since these orders are by nature short-lived . . .

we therefore conclude that this case is not moot

The case at hand is analogous. It is conceivable that

the present situation would repeat itself, thus again deny-

ing petitioner and other citizens of the district their repre-

sentation, while still being taxed to support the seat of the

Congressman. Such a Congressman could again be replaced

before litigation could be completed to test the rule.

In Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147,

93 S. Ct. 705 (1973), a pregnant woman filed a class action

challenging the validity of abortion laws. The United States

Supreme Court said that the fact that by the time of judicial

review her problem (pregnancy) was terminated did not render

the case moot, because the issue remained as to the class she

a

represented. At page 125, the Court said that since the

period of pregnancy is so short, it

** | . will come to term before the usual

appellate process is complete. If that termina-

tion makes a case moot, pregnancy litigation

seldom will survive much beyond the trial

stage, and appellate review will be effectively

denied. Our laws should not be that rigid . .

. . Pregnancy provides a classic justification

for a conclusion of non-mootness. It truly

could be ‘capable of repetition, yet evading

review.”

The case at hand is similar in that the term of office

in the House of Representatives is for a short period of

time. There is a high probability that at some time in the

future other members of Congress will be guilty of mis-

conduct so as to bring House Rule 43, paragraph 10,

into effect, denying citizens in that district voting repre-

sentation for at least the remainder of one term of office.

This situation could truly be “capable of repetition, yet

evading review.”

See also Dunn v. Blumstein, 405 U.S. 330, 333 n. 2,

31 L. Ed. 2d 274, 92 S. Ct. 995 (1972), involving a class

action challenging the voter residence requirement. In

this case the United States Supreme Court noted:

‘Although appellee now can vote, the problem

to voters posed by the Tennessee residence re-

quirement is ‘capable of repetition, yet evading

review . . . the laws in question remain on

the books, and Blumstein has standing to chal-

lenge them as a member of the class of people

~10—

affected by the presently written statute.”

In addition, see Storer vy. Brown, 415 U.S. 724, 727

n. 8, 39 L. Ed. 2d 714, 94 S. Ct. 1274 (1974), where the

Court noted:

“The 1972 election is long over, and no effec-

tive relief can be provided to the candidates or

voters, but this case is not moot, since the issues

properly presented, and their effects on indepen-

dent candidacies, will persist as the California

statutes are applied in future elections. This is,

therefore, a case where the controversy is ‘capable

of repetition, yet evading review’.”

Similarly, state officials’ voluntary abandonment of

long-standing improper practices does not always make an

issue “moot” . . . at least where it appears that if the court

dismisses, the state officials will be “‘free to return to their

old ways”’ and reinstitute the challenged system. Such was

the situation in Gray v. Sanders, 372 U.S. 368, 9 L. Ed. 2d

821, 83 S. Ct. 801 (1973), relating to an improper vote-

counting system in a state primary election.

In United States v. W. T. Grant Company, 345 U.S.

629, 632-3, 97 L. Ed. 1303, 73 S. Ct. 894 (1952), a suit

involving the Clayton Action provisions, the Court said:

“Both sides agree to the abstract position that

voluntary cessation of allegedly illegal conduct

does not deprive the tribunal of power to hear

and determine the case, i.e., does not make the

case moot . . . . Acontroversy may remain

to be settled in such circumstances . . . e.g.,

a dispute over the legality of the challenged

practices . . . . The defendant is ‘free to

RE we

return to his old ways.’ This together with

a public interest in having the legality of the

practices settled, militates against a mootness

conclusion . . . . The case may nevertheless

be moot if the defendant can demonstrate that

‘there is no reasonable expectation that the

wrong will be repeated’.”

In the case herein, there is a reasonable expectation

that as long as Rule 43, paragraph 10, is in effect, the

“wrong” of taxation without representation could well .

be repeated once again.

In the case of Carroll et al. v. President and Commis-

sioners of Princess Anne, et al., 393 U.S. 175, 178-9, 21

L. Ed. 2d 325, 89 S. Ct. 347 (1968), a temporary injunc-

tion had been issued against a ‘“‘white supremacist”’ organ-

ization rallying. On certiorari the United States Supreme

Court said:

“, . . the case isnot moot . . . it appears

that the decision of the Maryland Court of

Appeals continues to play a substantial role

in the response of officials to their activities.

In these circumstances, our jurisdiction is not

atanend . . . the underlying question persists

and is agitated by the continuing activities and

programs of petitioners . . . the question is

not moot.”

In the case herein, the question persists as to what

processes the Members of the United States House of Rep-

resentatives may use to sanction the activities of Members

of their own body.

See also United States v. Trans. Missouri Association,

a |, ea

166 U.S. 290 (1897); National Labor Relations Board v.

Pennsylvania Greyhound Lines, Inc., 303 U.S. 261 (1938);

Federal Trade Commission v. Goodyear Tire and Rubber

Company, 304 U.S. 257 (1938); Walling v. Helmerich and

Payne, Inc., 323 U.S. 37 (1944); National Labor Relations

Board v. Jones and Laughlin Steel Corp., 331 U.S. 416

(1947).

In the case of Weinstein v. Bradford, 423 U.S. 147

(1975), the Court outlined a two-part standard for non-

class actions to survive an attack on the ground of moot-

ness. First, the action attacked must be of duration short

enough that litigation will not be finished by the time the

action attacked is complete (as is the case here, as is evi-

dent in the record, due to the short duration of the Con-

gressional term). Second, there must be a reasonable

expectation that the plaintiff may again be subject to

that action (as will exist in the present situation, as long

as petitioner resides in any of these United States and his

representative is still subject to House Rule 43, paragraph

10.

The case at bar is distinguishable from the holdings

of Weinstein (supra) and Board of School Commissioners

of the City of Indianapolis, et al. v. Jacobs, 420 U.S. 128

(1974), in that in these actions the plaintiffs were no longer

potentially affected by the rules disputed. In the present

situation petitioner will inevitably always be subject to

the effects of House Rule 43, paragraph 10.

The case at hand is also distinguishable from S. E.C.

v. Medical Committee for Human Rights, 404 U.S. 403

(1971), in that the House is likely to repeat its allegedly

wrongful application of Rule 43, paragraph 10, whereas

«de Bion

in S.E.C. v. Medical Committee for Human Rights it

was doubtful the act would be repeated. In that case,

which was found moot, the Court said at page 406, “If

Dow were likely to repeat its allegedly illezal conduct,

the case would not be moot.”

In the case at bar it seems quite apparent that even

though the petitioner has regained his representation in

the House of Representatives, he, and other citizens of

this country, could lose representation at some future

time if House Rule 43, paragraph 10, is again implement-

ed by or yielded to by Members of the United States

House of Representatives.

The Constitution provides that “‘[e] ach House shall

be the judge of the elections, returns and qualifications

of its own members” (Article I, Section 5 [Appendix p.

4]). Even so, a claim that such power has been exercised

arbitrarily is subject to judicial review. (Adam Clayton

Powell v. Speaker of the House McCormack, 395 U.S.

486 [1969] ).

CONCLUSION

This petition presents fundamental issues regarding

the validity and constitutionality of House Rule 43, para-

graph 10. These questions relate to the fundamental wrong

of depriving citizens of an offending Congressman’s district

of their voting representation, while such Congressman is

still allowed to retain his seat, salary and benefits at their

tax expense.

The issues related to taxation without representation

are obviously substantial to the petitioner, and to any other

a

citizen of the United States of America. It is submitted,

moreover, that the issues are extremely important to the

administration of justice and to the conduct of the judi-

cial system.

As long as House Rule 43, paragraph 10, is in effect,

the present situation is “capable of repetition, yet evading

review.” Therefore, the question is not moot.

For each of these reasons, it is respectfully requested

that a Writ of Certiorari issue to review the opinion of the

United States Court of Appeals for the Ninth Circuit.

Respectfully submitted,

» MICHAEL PATRICK CLANCEY

Petitioner

ws ty

“BRB”

INDEX TO APPENDIXES

Opinion of the Court Below

(United States Court of Appeals

for the Minin Circwit) ow a kes

Constitutional Provisions Involved ....

Mee 8. BOCUON SD ik a va

Article I, Section 6, Subsection 1. .

Page

+i

APPENDIX “A”

OPINION OF THE COURT BELOW

In the United States Court of Appeals for the

Ninth Circuit.

MICHAEL PATRICK CLANCEY, Plaintiff/Appel-

lant, vs. CARL ALBERT, JOHN J. FLYNT, JR., and

THE UNITED STATES HOUSE OF REPRESENTA-

TIVES, et al., Defendants/Appellees.

No. 77-3010.

[Filed July 5, 1979]

Appeal from the United States District Court

for the Central District of California

Before: WALLACE and TANG, Circuit Judges, and

TURRENTINE*%, District Judge.

TURRENTINE, District Judge:

Representative Andrew J. Hinshaw was elected in

November, 1974, to a second term in Congress on behalf

of the 40th District of the State of California. In January,

1976, he was found guilty of two counts of bribery by a

California jury. House of Representatives Rule 43, para-

graph 10, provides that a Representative convicted of a

crime while in office shall refrain from voting in the House

until vindicated on appeal, or re-elected by the constitu-

ency!. Congressman Hinshaw therefore refrained from

*Honorable Howard B. Turrentine, United States District Judge, Southern

District of California, sitting by designation.

lHouse Rule 43, par: h 10, states:

A Member of the House of Representatives who has been convicted

by a court of record for the commission of a crime for which a sentence

Appendix 7 3

all participation in committee business and House voting.

On March 25, 1976, Michael P. Clancey, appellant

herein, sought a declaratory judgment in the District Court

that the House Rule was unconstitutional. He alleged, inter

alia, that various defendants had denied him the constitu-

tional right to representation through compliance with the

Rule. However, Congressman Hinshaw was defeated in the

primary election in June, 1976, and in January of 1977,

another Representative from the 40th District was seated.

Although the District Court had already dismissed as to

some named defendants for a variety of reasons,” the

entire action was dismissed on March 7, 1977, for moot-

ness. Clancey appeals this latter dismissal.

Appellant’s contention is that his claim is not moot

because the controversy presented is capable of repetition,

yet evades review. Southern Pacific Terminal Co. v. LC.C.,

219 U.S. 498, 515 (1911). Clancey argues that because

other representatives may be convicted of crime while

serving, he can be deprived of his right to representation

again. And he asserts that such deprivation evades review

because the two-year term of service by members of Congress

is too brief a period in which to seek a judicial remedy.

The Supreme Court has recently said

(1 cont'd)

of two or more years’ imprisonment may be imposed should refrain

from participation in the business of each committee of which he is

a member and should refrain from voting on any question at a meet-

ing of the House, or of the Committee of the Whole House, unless or

until judicial or executive proceedings result in reinstatement of the

presumption of innocence or until he is reelected to the House after

the date of such conviction.

2The District Court dismissed the action as to Congressmen Albert and Flynt

on July 19, 1976, concluding that the Speech and Debate Clause of the Con-

stitution barred the claim. And on September 20, 1976, the Court dismissed

as to the House of Representatives under the doctrine of sovereign immunity.

Appendix 3.

that in the absence of a class action, the “capable

of repetition, yet evading review” doctrine [is]

limited to the situation where two elements [are]

combined: (1) the challenged action was in its

duration too short to be fully litigated prior to its

cessation or expiration, and (2) there was a reason-

able expectation that the same complaining party

would be subjected to the same action again.

Weinstein v. Bradford, 423 U.S. 147, 149

(1975) (emphasis added), citing Sosna v.

Iowa, 419 U.S. 393 (1975).

The chance that appellant Clancey will again reside in a

district whose elected representative is convicted of a

crime while serving seems too remote to amount to a

“reasonable expectation”’ that the House Rule will again

affect Clancey’s representation in Congress. Therefore, we

conclude that the constitutional validity of the Rule does

not appear to present a recurring problem within the mean-

ing of the phrase “‘capable of repetition.”

Having reached this conclusion, it becomes unneces-

sary to consider whether Clancey has demonstrated that

the issue he seeks to litigate actually does evade review.

The appellant is presently represented in Congress by a

member who may exercise voting rights and who may

participate in committee business. For this reason, and

in light of the above discussion, Clancey’s claim is moot,

and the judgment of the District Court dismissing the

action is hereby affirmed.

Appendix APPENDIX ‘“‘B” 4.

—-__—

CONSTITUTIONAL PROVISIONS INVOLVED

Article I, Section 5

1. Each House shall be the judge of the elections,

returns and qualifications of its own members, and a major-

ity of each shall constitute a quorum to do business; but a

smaller number may adjourn from day to day, and may be

authorized to compel the attendance of absent members,

in such manner, and under such penalties as each House may

provide.

2. Each House may determine the rules of its

proceedings, punish its members for disorderly behavior,

and with the concurrence of two-thirds expel a member.

3. | Each House shall keep a journal of its proceedings,

and from time to time publish the same, excepting such parts

as may in their judgment require secrecy; and the yeas and

nays of the members of either House on any question shall,

at the desire of one-fifth of those present, be entered on the

journal. .

4. Neither House, during the session of Congress,

shall, without the consent of the other, adjourn for more

than three days, nor to any other place than that in which

the two Houses shall be sitting.

Article I, Section 6, Subsection 1

1. The Senators and Representatives shall receive

a compensation for their services, to be ascertained by law,

and paid out of the treasury of the United States. They

shall in all cases, except treason, felony and breach of the

peace, be privileged from arrest during their attendance at

Appendix

the session of their respective Houses, and in going to and

returning from the same; and for any speech or debate in

either House, they shall not be questioned in any other

place.

STATE OF CALIFORNIA )

) SS.

County of Orange

I, the undersigned, say: I am and was at all times herein mentioned, a citizen

of the United States and employed in the County of Orange, State of Califor-

nia, over the age of eighteen years and not a party to the within action or pro-

ceeding; that

My business address is 326% Main Street, Huntington Beach, California 92648,

that on AUGUST J °, 1979, I served the within PETITION FOR WRIT OF

CERTIORARI (CLANCEY v. ALBERT) on the following named parties by

depositing the designated copies thereof, enclosed in a sealed envelope with

postage thereon fully prepaid, in the United States Post Office in the City of

Huntington Beach, California, addressed to said p arties at the addresses as

follows:

Solicitor General of the United States

U. S. Department of Justice

Washington, D. C. 20530 (3 copies)

William D. Keller

United States Attorney

Central District of California

Frederick M. Brosio, Jr., Asst. U. S. Attorney

Chief, Civil Division

Stephen D. Petersen

Assistant U. S. Attorney

1100 U. S. Courthouse

312 North Spring Street

Los Angeles, California 90012 (2 copies)

I declare under penalty of perjury that the foregoing is true and correct.

Executed on AUGUST 3 1979, atH CALIFORNIA.

2

41 Copies to Supreme Court of the United States via Air Mail- Special Delivery

Dean-Standefer, 326% Main St., Huntington Beach, Ca. 92648

(714) 536-7161