# Petition — Clancey v. United States House of Representatives

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 444 U.S. 916

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0682%3A1. Public record. Not legal advice.