Petition — Siebert v. Conservative Party of New York State

Supreme Court. U.S.

EF LLE D

IN THE MAR 16 1984

Supreme Court of the United. States .,....

CLER! j

Ocroser Term, 1983 a ed

> > a

MURIEL SIEBERT, SIEBERT FOR SENATE,

WHITNEY NORTH SEYMOUR, JR., and

SEYMOUR SENATE CAMPAIGN COMMITTEE,

Petitioners,

VS.

THE CONSERVATIVE PARTY OF NEW YORK

STATE, NEW YORK STATE CONSERVATIVE PARTY

STATE COMMITTEE, J. DANIEL MAHONEY,

MICHAEL R. LONG, SERPHIM E. MALTESE,

and JAMES E. O’DOHERTY,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

WuitNey Nortu Seymour, Jr.

100 Park Avenue, Room 2606

New York, New York 10017

(212) 599-0068

Counsel for Petitioners and Pro Se

(in Supreme Court only)

Watter P. LOUGHLIN

Rutgers School of Law

Of Counsel

March 15, 1984

QUESTION PRESENTED

This case presents an important question concerning the pro-

per interpretation of Title 39, United States Code, Section

3624(e) which has not been, but should be, settled by this court:

Whether a private cause of action under Section 3626(e)

should be implied to permit petitioners to seek an injunction

against clear violations of the postal laws of the United States

which give to one candidate the unfair advantage of an unlawful

federal subsidy through reduced postal rates, and if unchecked

will give splinter party candidates in future elections a privileged

position contrary to the principle of governmental non-

intervention in the electoral process.

TABLE OF CONTENTS

Page

SN INE oo svc tee dasdane wen ewer i

I Oi os bake yuna se eee ewe eee beeen 2

Pere eee eyo ye) 2

Statutory provision involved .................. 2

ene Oe GO GID 0 oi cc vc cunavecssanason 3

Reasons for granting the writ .................. 4

1. THIS CASE PRESENTS AN ISSUE OF

GROWING IMPORTANCE IN THE USE OF

THE UNITED STATES MAILS; DIRECT

MAIL HAS BECOME A MAJOR CAMPAIGN

TOOL WHICH WILL BE OPEN TO MORE

AND MORE WIDESPREAD ABUSE UNLESS

SUBJECTED TO REASONABLE CONTROL . 4

2. THE DECISION OF THE COURT OF AP-

PEALS CONFLICTS WITH THIS COURT'S

Puree neuee Oe CME V. AUD. occ cice wees 9

3. THE DECISION BELOW IS IN CON.

FLICT WITH LEGAL PRINCIPLES AP-

PLIED BY THE THIRD, SEVENTH AND

i nD. f 5:40 aves sete al ereerts 17

I ns go a A pe ee ere 19

Appendix (Opinion and Judgment of Court of

ET aa 560 boc oa ad ook beeen er

————— i.

TABLE OF AUTHORITIES

Cases: Page

Belaudine v. Murphy, 364 F. Supp. 1223, 1224

ES A, Cee gecrararyr a prarer sand yin at gh 13, 18

Bivens v. Six Unknown Federal Narcotics Agents,

403 U.S. 388, 304-305 (1971) .......... cece eens XX

Calhoon v. Harvey, 379 U.S. 134 (1964) ........ 10

Cannon v. University of Chicago, 441 U.S. 677

RRR ARR eel sath cass eine oe leral BONN Ae 9, 10,13

Cart o. Ash, 422 U.S. 66, 78 (1975) ............ 9,13

Common Cause v. Bolger, 512 F. Supp. 26, 31

PR ME aa tase oa obs eek s cee e ees 12

Herman & Maclean v. Huddleston, 103 S. Ct.

Ss IE ov akccsavedsGekbicest ieee sans 13

Hoellen v. Annunzio, 468 F.2d 522 (7th Cir.

ee, ee I, ns 5 oss oe he Va bceew ke 13, 18

J.1. Case Co. v. Borak, 377 U.S. 426, 434 (1964) . 10

Merrill Lynch, Pierce, Fenner & Smith v. Cur-

pan, 456 U.S. 363, 361 (10GB)... cece. 13

National Railroad Passenger Corp. v. National

Assn. of Railroad Passengers, 414 U.S. 453, 458,

Se tee a oe ace earch ceiees ake ae 10

Owen v. Milligan, 640 F.2d 1130, 1132-3 (9th

| ae NEES Se . 17

Rising v. Brown, 313 F. Supp. 824. 826 (C.D.

Cal. 1970) 13, 18

Schiaffo v. Helstoski, 492 F.2d 413, 419-27 (3rd

Cir. 1974) 13, 17

Securities Investor Protection Corp. v. Barbour,

421 U.S. 412, 423 (1975) 10

Straus v. Gilbert, 293 F. Supp. 214 (§.D.N.Y.

1968) 13, 18

iv

Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33

SE ce Siccecat cake eehicatsakencewa names}

Touche Ross & Co., v. Redington, 442 U.S. 560,

I ec ark told ai ns sev ianley.awee awake os

Tunstall v. Locomotive Firemen & Enginemen,

FS SS Of Re eee eae

Van Hecke v. Reuss, 350 F. Supp. 21 (E.D. Wise.

SE Sc ss cast aaa ee a ae ee ance ates

Wheeldin v. Wheeler, 373 U.S. 674, 652 (1963) ..

Statutes:

he

2 U.S.C. 441(a)(2)(A) Federal Election Campaign

Na es ey ONES CEN CS Re Gee eee ee eka

ee ee ere y sires irre hee ee

se Ee RSA nnArennrr ar

ee ee I oc oe Cae k as arene niece wees

Se ata SOUND 65s ois e ct aeke ease

Other:

FEC File 55, 3185 N.Y. REP C1522

Ithaca [N.Y.] Journal, September 7, 1982

Larry J. Sabato, The Poisoned Pen of Politics,

(op. cit.) ae

Larry J. Sabato, The Rise of Political Consultants

(Basic Books, 1981)

~!

IN THE

Supreme Court of the United States

Octroser Term, 1983

No.

MURIEL SIEBERT, SIEBERT FOR SENATE,

WHITNEY NORTH SEYMOUR, JR., and

SEYMOUR SENATE CAMPAIGN COMMITTEE,

Petitioners,

VS.

THE CONSERVATIVE PARTY OF NEW YORK

STATE, NEW YORK STATE CONSERVATIVE PARTY

STATE COMMITTEE, J. DANIEL MAHONEY,

MICHAEL R. LONG, SERPHIM E. MALTESE,

and JAMES E. O’DOHERTY,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioners Muriel Siebert, Siebert for Senate, Whitney North

Seymour, Jr., and Seymour Senate Campaign Committee

respectfully pray that a writ of certiorari issue to review the

judgment and opinion of the United States Court of Appeals

for the Second Circuit entered in this proceeding on December

21, 1983.

OPINIONS BELOW

The opinion of the Court of Appeals, not yet reported, ap-

pears in the Appendix hereto. The opinion of the District Court

for the Southern District of New York is reported at 565 F.Supp.

56.

JURISDICTION

The judgment of the Court of Appeals for the Second Cir-

cuit was entered on December 21, 1983. This petition for cer-

tiorari was filed within 90 days of that date. This Court's

jurisdiciton is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

Section 3624(e) of Title 39, United States Code, provides as

follows:

39 U.S.C. § 3626(e)

(e)(1) In the administration of this section, the rates

for third-class mail matter mailed by a qualified

political committee shall be the rates currently in ef-

fect under former section 4452 of this title for third-

class mail matter mailed by a qualified non-profit

organization.

(2) For purposes of this subsection

(A) the term “qualified political committee” means

a national or State Committee or a political par-

ty, the Republican and Democratic Senatorial

Campaign Committees, the Democratic Na-

tional Congressional Committee, and the Na-

tional Republican Congressional Committee;

(B) the term “national committee” means the

organization, which by virtue of the by-laws of

a political party, is responsible for the day-to-

day operation of such political party at the na-

tional level; and

(C) the term “State committee” means that organiza-

tion which, by virtue of the by-laws of a political

party, is responsible for the day-to-day opera-

tion of such political party at the State level.

STATEMENT OF THE CASE

This action has been brought by two unsuccessful candidates

for the 1982 Republican nomination for the United States Senate

from New York. The defendants are the New York State Con-

servative Party and its key officers. The case is based on a last-

minute “hate mail” campaign conducted on behalf of the suc-

cessful third candidate in the Republican Party primary, who

was also the candidate of the respondent Conservative Party.

The mailing piece which is the subject of this action was sent

to a list of approximately half a million Republican primary

voters a few days before the primary election. It attacked peti-

tioners as “left-leaning;” charged that one petitioner was an ad-

mitted “ ‘raving liveral’ on social issues,” and asserted that the

other had “opposed stiffer penalties for murderers, rapists and

other violent criminals.”

The mailing piece was sent out at a reduced non-profit rate

established for “qualified” political committees under 39 U.S.C.

§ 3626(e). By statute and regulation this rate is not directly

available to individual primary candidates or their committees.

The average cost of 4¢ per piece under the reduced rate con-

trasts to 20¢ for first class mail, and in this instance represented

an unlawful Federal subsidy to the winning candidate’s primary

campaign of approximately $80,000. Although the offending

mailing was published and mailed in the name of the State Com-

ittee of the New York State Conservative Party, it is conceded

that the cost of the actual mailing was paid for by the successful

candidate's campaign committee. (A-26) The Conservative Party

itself could not have paid the postage because of the $5,000 con-

tribution limitation under the Federal Election Campaign Act,

When the Postal Service declined to take action to halt the

mailing, petitioners brought this proceeding seeking an injunc-

tion against future unlawful mailings by defendants. *

The District Court held that the postal statutes, and specifical-

ly 39 U.S.C. § 3626(e) did not give rise to a private right of

action, and dismissed the complaint for want of subject matter

jurisdiciton. The Court of Appeals affirmed without dissent.

REASONS FOR GRANTING WRIT

1. THIS CASE PRESENTS AN ISSUE OF GROWING

IMPORTANCE IN THE USE OF THE UNITED

STATES MAILS; DIRECT MAIL HAS BECOME A

MAJOR CAMPAIGN TOOL WHICH WILL BE

OPEN TO MORE AND MORE WIDESPREAD

ABUSE UNLESS SUBJECTED TO REASONABLE

CONTROL

Background

The Founding Fathers envisioned an election process in which

candidates would personally present themselves and their views

* Petitioners sought both money damages and injunctive relief in their com-

plaint. The claim for damages, however, was based on a New York common

law claim, over which the district court would have only pendent jurisdic-

tion. Petitioners have consistently acknowledged that the only possible indepen-

dent ground for subject matter jurisdiction is that of an implied right of ac-

tion under 39 U.S.C. § 3626/e).

directly to the electorate, with free and open discussion of the

issues of the day. This vision was best personified in the Lincoln-

Douglas debates during the United States Senate Campaign in

Illinois in 1858.

Dramatic changes have occurred in the election process in

the last decade, largely as a result of new electronic and com-

puter technology. In Congressional races covering large

geographic areas and sizeable constitutencies — for Senate races,

entire states -- candidates now turn to professional political con-

sultants to “package” them for delivery to the voters via elec-

tronic media and computerized direct mail. See, generally,

Larry J. Sabato, The Rise of Political Consultants (Basic Books,

1981).

Hand-in-hand with the increased use of technology in the elec-

tion process has come an increasing need for more and more

funds to pay for consultants, pollsters, creative talent, and

delivery mechanisms (particularly television and direct mail).

Direct mail has been described as “The Poisoned Pen of

Politics” (Sabato, op cit supra, Chapter heading, p.220).

Political consultants openly boast about their ability to twist

words to deceive the voters.

With direct mail, I can speak with forked tongue. If

I'm a Republican candidate I can make myself sound

like a Democrat. If I'm a Democrat I can make myself

sould like a Republican. I'm not saying a goddamn

thing, but I get (the voters’] support.

(Statement by Herb Sosnick of Direct Mail Marketing of San

Francisco in Today newspaper, Nov. 30, 1979, quoted by Sabato

at p. 220),

The impact of direct mail in political campaigns is widely

recognized by political experts.

Most individuals greatly enjoy receiving mail. In a

recent survey more people (63 percent) said they look-

ed forward to the post than to any other of a laundry

list of pleasurable activities on the daily schedule. Pro-

testations to the contrary notwithstanding, most peo-

ple even delight in the so-called “junk mail” they get,

at least the political variety. One study indicates that

three-fourths of the individuals who are sent a piece

of political direct mail actually do read it.

It is this sort of statistic that has made political

direct mail one of the most valuable of the new

campaign techniques, while remaining the least

understood. Direct mail combines sophisticated

political judgments and psychological, emotional ap-

peals with the most advanced computer and mailing

technologies. Used for two very distinct purposes (per-

suasion and fund raising), direct mail is considered

a necessity by many candidates — a significant ma-

jority, in fact, now employ it in some form...

(Sabato, op. cit. supra, pp.220-221).

A large part of the success of direct mail in political cam-

paigns is due to the availability of computer technology to store,

sort, retrieve, and print mailing labels for prospect names.

(Sabato, p. 224). That particular factor is one of the subjects

of the complaint in this action, which alleges that the direct

mail scheme here depended on the availability of computeriz-

ed labels whose economic value exceeded allowable campaign

contribution limits.

The most serious aspect of the direct mail phenomenon is that

it permits (nay, encourages) copywriters to twist words, well

knowing that the opposition will never hove a chance to res-

pond, especially if the mailing is (as here) to be sent out in the

final days of the campaign.

Direct mail is often nothing more than mass-produced

and lovingly refined hate mail. It is the standard in-

dustry practice to exaggerate broadly, just on or over

the edge of lying. One direct mailer drew the fine lines

of his profession's ethics: “I wouldn't quote somebody

completely out of context; I wouldn't write something

=

‘

that was blatantly untrue.” Direct mail is thus the

conveyor of misinformation and the purvevor of over-

simplification and superheated emotionalism, all of

which are notoriously destructive to rational political

decision making and a civilized political process.

(Sabato, p. 329)

Evasion of Campaign Spending Limitations

The Conservative Party's successful use of the federal postal

subsidy in this case to underwrite a major mailing in support

of their candidate was the capstone of a skillfully planned and

executed evasion of campaign finance restrictions. That plan

depended on two parallel strategies:

1. Arranging access to the postal subsidy for their candidate

without violating the contribution limits of the Federal Elec-

tion Campaign Act.

2. Providing a special computerized list of Republican

primary voters to the candidate's committee without violating

“in kind” contribution limits.

Section 44]la(a)(2)(A) of the Federal Elections Campaign

Finance Act restricts multicandidate political committees’ ex-

penditires on behalf of a candidate to a maximum of $5,000.

This limitation expressly includes contributions of “anything of

value” (2 U.S.C. 431(8)(A)(i)). — so-called “in kind”

contributions.

Once the Conservative Party set out to help its candidate win

the Republican primary for the U.S. Senate through a direct

mail operation, the first question it had to face was how to get

the advantage of the subsidized postal rate under 3696(e)

without violating the FECA spending limitations. The solution

was to have the candidate's committee pick up all costs over

$5,000. The Conservative Party accordingly limited its direct

cash expenditure to $4,980, applied to the cost of printing the

mailing piece, just under the legal limit. (A-26).

If the Conservative Party had paid the postage costs for the

mailing, as contemplated by the postal statute, it would clearly

have violated the contribution limits of the Federal election law.

The estimated cost of $20,000 for half-a-million mailing pieces at

4¢ apiece far exceeded the $5,000 maximum amount permitted

by law.

Similarly, the Conservative Party had to avoid any connection

with the transfer of the computer-generated mailing labels, as this

would have constituted an “in kind” contribution far in excess of

Federal spending limits. (At the standard commercial rate for com-

puter mailing labels of $40-$50 per thousand, 500,000 labels were

equal to an in kind contribution of $20,000-$25,000.)

The position the Conservative Party has taken in this case is

that the party and its officials “Do not know” the source of the

mailing labels used in the mailing sent out in their name. (Sworn

answers to interrogatories: A-27.)*

* By way of additional background, the Court may wish to take judicial notice

of the following items of public record:

(a) On September 7, 1982, the ITHACA [N.Y.] JOURNAL published a Gan-

nett News Service story concerning statements by Michael Long (a Conservative

Party official and one of the representatives here);

There is no money for TV or radio, and the Sullivan campaign

is banking heavily on a statewide mailing tc likely primary voters.

“No senate candidate running against Florence Sullivan has the list

we do,” declared Sullivan's campaign manager, Michael Long.

Long also is the Brooklyn chairman of the Conservative Party

which is providing that list. Sullivan is the Senate nominee of the

Conservative and Right to Life parties, and plans to actively remain

in the race even if she loses the Republican nomination. (Emphasis

added.)

Mr. Long is one of those who has claimed under oath in this case that he does

not know the source of the mailing list used on the Sullivan mailing. (A-27).

(b) The public copy of the campaign finance report filed by the Sullivan for

Senate Committee gives the source of the computerized mailing labels of New

York Republican primary voters to be the “Citizens for the Republic” of San-

ta Monica, California and ascribes a nominal valuation of $3,368.56 for the

entire lot — about $6.70 per thousand, (FEC file 5S 3185 NY REP C1522).

These items are obvious subjects for discovery and development if the case is

permitted to go to trial,

The issue before this Court, therefore, is not merely how to

prevent future misuse of the Federal postal subsidy to aid in-

dividual political candidates, but how to prevent such misuse

as part of a larger strategy to evade campaign spending limits.

This case presents a rare opportunity to place reasonable

restraints on the abuse of Federal mailing privileges by giving

political opponents the opportunity to blow the whistle when

the rules are violated.

2. THE DECISION OF THE COURT OF APPEALS

CONFLICTS WITH THIS COURT'S POSITION IN

CORT V. ASH.

This Court has long recognized that private rights of action

do not require express statutory authorization, Texas & Pacific

R. Co. v. Rigsby, 241 U.S. 33 (1916); Tunstall v. Locomotive

Firemen & Enginemen, 323 U.S. 210 (1944), and that the

preferred approach for determining whether a private right of

action should be implied from a federal statute was outlined

in Cort v. Ash, 422 U.S. 66, 78 (1975). See Cannon v. Univer-

sity of Chicago, 441 U.S. 677 (1979).

In this case, the District Court dismissed petitioner's com-

plaint without referring to the Cort test, or even citing the deci-

sion. Moreover, the Court of Appeals affirmed the dismissal of

the complaint without adequately conducting the analysis Cort

requires. Proper application of the factors outlined in Cort clear-

ly indicates that § 3626(e) creates a private right of action.

In Cort v. Ash, four factors were thought to be relevant to

the determination of “whether Congress intended to create the

private right of action.” Touche Ross & Co., v. Redington, 442

U.S. 560, 568 (1979).

First, is the plaintiff ‘one of the class for whose especial

benefit the statutue was enacted,’ Texas & Pacific R.

Co. v. Rigsby, 241 U.S. 33, 39 (1916) (emphasis sup-

plied) — that is, does the statute create a federal right

10

in favor of the plaintiff? Second, is there any indica-

tion of legislative intent, explicit or implicit, either

to create such a remedy or to deny one? See, e.g. Na-

tional Railroad Passenger Corp. v. Naitonal Assn. of

Railroad Passengers, 414 U.S. 453, 458, 460 (1974)

(Amtrak). Third, is it consistent with the underlying

purposes of the legislative scheme to imply such a

remedy for the plaintiff? See e.g., Amtrak, supra;

Securities Investor Protection Corp. v. Barbour, 421

U.S. 412, 423 (1975); Calhoon v. Harvey, 379 U.S.

134 (1964). And finally, is the cause of action one

traditionally relegated to state law, in an area basical-

ly the concern of the States, so that it would be inap-

propriate to infer a cause of action based solely on

federal law? See Wheeldin v. Wheeler, 373 U.S. 674,

652 (1963); cf. J.J. Case Co. v. Borak 377 U.S. 426,

434 (1964); Bivens v. Six Unknown Federal Narcotics

Agents 403 U.S. 388,394-395 (1971); id., at 400

(Harlan, J. concurring in judgment), 422 U.S., at 78.*

In determiuing whether petitioners can assert a private right

of action under Section 3626(e), “The threshold question under

Cort is whether the statute was enacted for the benefit of a

special class of which plaintiff isa member.” Cannon v. Univer-

sity of Chicago, supra, at 689. Both the District Court and the

Court of appeals answered this question in the negative. For

instance, the Court of Appeals stated, “The only beneficiaries

of Section 3626(e) are political committees of a party. Appellants

are individual candidates outside the scope of the statute.” (Slip

Opinion at 7).

This conclusion failed to take into account the overall

statutory structure of the Postal Service Law, which defines a

broader benefitted class under the Cort test than does the nar-

row exception contained in Section 3626(e).

* Postal matters are, of course, exclusively a federal concern. Therefore, the

fourth aspect of the Cort test is not relevant here.

The opening section of the Postal Service Law contains the

following declarations of Postal Policy: (39 U.S.C. § 101(d)):

(a) The United States Postal Service shall be

operated as a basic and fundamental service provid-

ed to the people by the Government of the United

States, authorized by the Constitution, created by Act

of Congress, and supported by the people. The Postal

Service shall have as its basic function the obligation

to provide postal services to bind the Nation together

through the personal, educational, literary, and

business correspondence of the people. It shall pro-

vide prompt, reliable, and efficient services to all com-

munities. The costs of establishing and maintaining

the Postal Service shall not be apportioned to impair

the overall value of such service to the people.

(d) Postal rates shall be established to apportion the

costs of all postal operations to all users of the mail

on a fair and equitable basis.

Petitioners are plainly part of the class of “users of the mail”

entitled to an apportionment of costs “on a fair and equitable

basis.” By creating a special subsidy for a particular group, Sec-

tion 3626(e) necessarily affects the class of general mail users

to which petitioners belong. They are required to pay full postal

rates, while “qualified” political committees receive the com-

petitive benefit of a lower rate. Petitioners’ interest in insuring

that only qualified users receive that advantage is self-evident.

If the mailing procedure employed here is permitted to con-

tinue — as it will if there is no private remedy to stop it — then

the declared Congressional policy of apportioning costs of postal

operations on a fair and equitable basis will be defeated. Primary

candidates to Republican or Democratic nomination to

statewide office who receive third party nominations (Conser-

vative, Liberal or Right to Life parties in New York State) will

12

have the unfair advantage of sending out mass mailings at sub-

sidized non-profit rates, while their opponents must pay the full

postage.

Whatever else it may have been up to, Congress can hardly

be ascribed the intention of creating such unequal protection

of the laws when it enacted § 3626(e), and to have not provid-

ed an effective remedy to prevent such a result from happening.

The unfair grant of a postal subsidy to non-profit competitors

has been squarely recognized as grounds for standing to sue in

Common Cause v. Bolger, 512 F.Supp. 26, 31 (D.C. 1980).

In addition, Common Cause alleges that it spent

more than $900,000 on mailing costs in 1973, large-

ly for the purposes of promoting the objectives of the

organization: making government more responsive

through reform of political process. The injury to

Common Cause and its members consists in the grant

of what they allege is an illegal mail subsidy to com-

petitors, a form of injury that has traditionally suf-

ficed to confer standing.

Because petitioners’ claims were brought on behalf of

members of the class the postal laws were designed to benefit,

the first prong of the Cort test was satisfied in this case, con-

trary to the decisions below.

The second inquiry under the Cort approach is whether there

is evidence of an express or implicit legislative intent to negate

the claimed private right of action. As this Court noted in

Cannon:

“[ T]he legislative history of a statute that does not ex-

pressly create or deny a private remedy will typical-

ly be equally silent or ambiguous on the question.

Therefore, in situations such as the present one ‘in

which it is clear that federal law has granted a class

of persons certain rights, it is not necessary to show

an intention to create a private cause of action,

although an explicit purpose to deny such cause of

action would be controlling’ Cort, 422 U.S., at 82

(emphasis in original).” 441 U.S. at 694.

13

The Court of Appeals, however, referred with approval to

the District Court's view that silence “on the question whether

a private party may sue another for the improper use of a reduc-

ed mailing rate,” was determinative. (Slip Opinion, A-8). But,

as this Court's opinions in Cort and Cannon make clear, the

“legislative history of a statute that does not expressly create

or deny a private remedy will typically be equally silent or am-

biguous on the question.” Cort v. Ash, supra, 422 U.S. at 82.

More significant than the unilluminating legislative history

in discerning Congress’ intent in this regard is the fact that when

Congress enacted Section 3626(e) in 1978, various federal courts,

including the Seventh and Third Circuits, had already held that

political candidates running against incumbents had standing

to challenge abuses of the postal laws. See, e.g., Schiaffo v.

Helstoski, 492 F.2d 413, 419-27 (3rd Cir. 1974); Hoellen v. An-

nunzio, 468 F.2d 522 (7th Cir. 1972), cert denied, 412 U.S. 953

(1973); Belaudin v. Murphy, 364 F.Supp. 1223, 1224 (S.D.N.Y.

1972); Rising v. Brown, 313 F.Supp. 824, 826 (C.D. Cal. 1970):

Straus v. Gilbert, 293 F.Supp. 214 (S.D.N.Y. 1968).

These decisions, which approve challenges by political can-

didates to abuses of the postal laws, were “part of the ‘contem-

porary legal context’ in which Congress legislated” Merrill

Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353, 381

(1982); Herman & Maclean v Huddleston, 103 S.Ct. 683, 689

(1983); Cannon v. University of Chicago, 441 U.S. 677, 696-99

(1978), when it enacted Section 3626(e) in 1978. Cannon, Cur-

ran and Huddleston stand for the proposition that, when Con-

gress reconsiders a statute in respect of which private standing

to sue has been given judicial approval, then such private stan-

ding will be deemed to be within the intention of Congress unless

Congress expressly withdraws it.

In other words, when Congress granted preferential postal

rates to certain political committees in 1978, courts had already

granted candidates standing to attack abuses of free postal rates.

In these circumstances, the teaching of Curran, Huddleston and

Cannon is that Congress will be deemed to have contemplated

that courts would grant candidates standing to attack abuses

14

of the preferential rates just as they did to attack abuses of free

rates.

Although this argument was made to the Court of Appeals

below, the Court misconstrued the argument, characterizing

it as a contention that “the law must be frozen in time for pur-

poses of determining whether Congress intended an implied

right of action to exist.” (Slip Opinion at 6).

Properly analyzed, it is clear that the intent of Congress was

not to foreclose private actions under Section 3626(e), but to

permit them.

The third portion of the Cort standard requires considera-

tion of whether an implied right of action is consistent with the

legislative scheme underlying the statute. The courts below

resolved this prong of the Cort test against petitioners solely

because of their conclusion that Congress intended the postal

statutes to be “enforced by the Postal Service and not by private

citizens.” (Slip Opinion at 8).

By assuming from the existence of the Postal Service's statutory

enforcement powers a Congressional intent that those enforce-

ment powers be exclusive, the courts below failed

acknowledge that this Court rejected this approach in Cort v.

Ash, 422 U.S. at 82-83, n.14, at least in the absence of specific

support in legislative history for the proposition that express

statutory remedies are to be exclusive.

It is clear from the undisputed facts of this case that implica-

tion of a private right of action would be not only consistent

with the legislative goal of conferring the non-profit postal rate

solely upon “qualified political committees,” but also that private

action is essential to enforcement of the statute. It is undisputed

in this case that the Postal Service has abdicated responsibility

for enforcement of the statute. (A-41). While the public as a

whole suffers from the abuse of the political process which oc-

curred in this case, only candidates such as petitioners have the

incentive to do something about it.

In sum, the Court of Appeals erroneously applied the Cort

v. Ash test, and that error requires correction.

15

Practical Considerations

The Court of Appeals disregarded the common-sense aspects

of its analysis: The Postal Service has neither the resources nor

the appetite for enforcement of 3626(e).

As soon as petitioners became aware of the Sullivan mailing

in the closing days of the campaign, one went directly to the

appropriate official at the General Post Office in New York City

to try to persuade the Postal Service to halt further distribu-

tion of the mailing until the proper fee had been paid.

On Monday morning, September 20, 1982 im-

mediately after learning that the Sullivan mailing

piece was being sent out at non-profit mailing rates

under the name of the State Committee of the New

York State Conservative Party Party, I went in per-

son to the General Post Office at Eighth Avenue and

33rd Street in New York City, where I proceeded to

the Mailing Requirements Section and had a conver-

sation with the postal official in charge of Non-Profit

Bulk Rate mailing requirements. I showed the official

a copy of the Sullivan mailing and told him that I

believed that it was not a bona fide mailing by the

Conservative Party State Committee but instead was

being mailed out on behalf of a political candidate.

The postal official pointed out that the mailing show-

ed on its face the return address of:

New York State Conservative Party State Committee

1982 Victory Fund

45 E. 29th Street

New York, NY 10016

He said that the Postal Service did not inquire into

the legality of non-profit permit use beyond examina-

tion of the return address printed on the mailing piece.

Since the Sullivan mailing piece bore the return ad-

dress of a qualified organization, he said they had no

further administrative role. (A-40)

16

The Postal Service official also made it clear that a formal

written complaint would not change the agency's position,

I specifically asked the official if the Postal Service

would stop further delivery or seek to enjoin the mail-

ing if formal written allegations of misuse were sup-

plied. His answer was in the negative. He said there

was nothing further the Postal Service could or would

do. (A-41)

In light of the decision of the Court of Appeals, Petitioners

have communicated with the General Counsel of the Postal Ser-

vice, requesting that official to inform this court by amicus brief

or otherwise what the Service's position is with respect to future

enforcement in case of violations of the mailing requirements.

The Assistant General Counsel has advised petitioners that the

Postal Service does not consider it appropriate “to interject itself

into these proceedings.”*

Accordingly, it is apparent that the Postal Services does not

have the intent or the desire to involve itself in fights between

Congressional candidates over alleged improper use of postal

subsidies. What the lower courts have done in denying in-

dividual candidates the right to seek judicial redress is to block

all enforcement activity and leave the field wide open to abuse,

* Full text of letter from United States Postal Service dated March 8, 1984:

Dear Mr. Seymour

We have read with interest your letter of February 28, 1984, and

the opinion of the Second Circuit Court of Appeals in the case

of Siebert v. Conservative Party, which were forwarded to this

office for consideration, We note that you have invited the United

States Postal Service to submit a brief amicus curiae, or a letter

to accompany your appeal to the Supreme Court. However, we

do not consider it appropriate for the Postal Service to interject

itself into these proceedings.

Sincerely,

Stanley F. Mires

Assistant General Counsel

Rate Application Division

Office of Rate and Classification Law

17

3. THE DECISION BELOW IS IN CONFLICT

WITH LEGAL PRINCIPLES APPLIED BY THE

THIRD, SEVENTH AND NINTH CIRCUITS

In 1981, the Ninth Circuit Court of Appeals expressly upheld

a private remedy to prevent misuse of another subsection of §

3626 for political purposes in Owen v. Milligan, 640 F.2d 1130,

1132-3 (9th Cir., 1981). In that case a defeated candidate sought

cancellation of the non-profit permit of a local COPE organiza-

tion because of precisely the same kind of violation as here —

loaning the permit to a political candidate for use in a cam-

paign. The plaintiff included the local postmaster as a party

defendant.

The district court upheld the plaintiff's right to bring an ac-

tion in the Federal Court and issued an injunction to prevent

further violations of § 3626, The Court of Appeals affirmed.

. Owen and the Republic Committee members seek

to prevent their opponent from gaining an unfair ad-

vantage in the election process through abuses of mail

preferences which “arguably promote his electoral

prospects.” Jd, The plaintiffs have a continuing in-

terest in preventing such practices, and, thus, have

standing. (640 F.2d 1133),

The assertion by the Court of Appeals that Owen v. Milligan

is “really a suit in mandamus” (Slip Op. p.9) disregards its pro-

cedural history, That action was originally brought against the

non-profit permit user, It was only the second enforcement pro-

ceeding which sought to force the Postal Service to carry out

the District Court's original mandate.

The Third Circuit earlier recognized a private remedy to stop

violations of the franking statute in Schiaffo v. Helstoski, 492

F.2d 413 (3rd Cir., 1974). The Ninth Circuit decision two years

later in Owen v, Milligan expressly re-affirmed Schiaffo on the

questions both of standing and mootness. 640 F.2d 1130, at 1133

and fn.8.

18

The Seventh Circuit also found subject matter jurisdiction

to restrain violations of the franking statute for political cam-

paign purposes in Hoellen v, Annunzio, 468 F.2d 522 (7th Cir.,

1972) cert. den. 412 U.S, 1953 (1973), which was likewise cited

with approval in the subsequent Owen v. Milligan opinion on

standing.* 640 F.2d 1130, at 1133, fn.8.

The Court of Appeals decision in this case conflicts with these

decisions, and this conflict confirms the fact that the question

presented in this petition warrants review by this Court.

* Four District Court cases have also held that a private party has the right

to seek an injunction to prevent violations of the franking statute:

Rising v. Brown, 313 F.Supp. 824 (CD Cal,, 1970) involved a suit by one

Congressman to enjoin another Congressman from using his franking privilege

in a primary contest in which both were seeking nomination to the U.S. Senate.

The court upheld standing and granted the injunction.

Straus v, Gilbert, 293 F.Supp. 214 (SDNY, 1968) was a suit by a primary

candidate to enjoin his opponent, the incumbent Congressman, froin using

his franking privilege to send out what he claimed was campaign literature.

The district court, while concluding that the content of the material did not

violate the franking statute, expressly affirmed its subject matter jurisdiction

to hear the matter,

Van Hecke v. Reuss, 350 F.Supp 21 (E.D,. Wise. 1972), upheld the propriety

of the franked newsletters sent out by the incumbent Congressman, while

recognizing the District Court's jurisdiction to consider a complaint brought

by the oppositing candidate.

In Belardino v. Murphy, 364 F.Supp. 1223 (SDNY, 1972), Judge Wyatt

granted an injunction in favor of a Congressional candidate against his in-

cumbent opponent to prevent further violations of the franking statute:

The plaintiff should have a preliminary injunction on his second

claim. He has standing and his injury would otherwise be ir-

reparable. (At p.1224).

The fact that Congress has since legislated the private remedy out of existence

in franking cases by providing an express alternative procedure only

underscores its failure to prohibit private enforcement actions and provide

an alternative remedy with respect to the qualified political committee non-

profit permit.

19

CONCLUSION

For these reasons, a writ of certiorari should issue to review

the judgment and opinion of the Second Circuit.

Respectfully submitted,

WHITNEY NortH Seymour, Jr.

100 Park Avenue, Room 2606

New York, NY 10017

(212) 599-0068

Counsel for Petitioners and Pro Se

(in Supreme Court only)

WALTER P. LOUGHLIN

Rutgers School of Law

Of Counsel

March 15, 1984

APPENDIX

A-l

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

+

No. 309—August Term, 1983

(Argued November 7, 1983 Decided December 21, 1983)

Docket No. 83-7542

i

MURIEL SIEBERT, SIEBERT FOR SENATE, WHITNEY NORTH

SEYMOUR, JR., and SEYMOUR SENATE CAMPAIGN COM-

MITTEE,

Plaintiffs-Appellants,

ane Y a

THE CONSERVATIVE PARTY OF NEW YORK STATE, NEW

YORK STATE CONSERVATIVE PARTY STATE COMMITTEE,

J. DANIEL MAHONEY, MICHAEL R. LONG, SERPHIM R.

MALTESE, and JAMES E. O’DOHERTY,

Defendants-Appellees.

Before:

McGowan,* TIMBERS and PIERCE,

Circuit Judges.

>

Senior Judge of the United States Court of Appeals for the District

of Columbia, sitting by designation.

699

A-2

Appeal from a judgment of the United States District

Court for the Southern District of New York in an action

in which plaintiffs seek to assert an implied right of

action pursuant to 39 U.S.C. § 3626(e)(Supp. V 1981).

Henry F. Werker, Judge, granted defendants’ motion to

dismiss complaint for lack of subject matter jurisdiction.

Affirmed.

aoe

POWELL PIERPOINT, New York, New York

(Hughes Hubbard & Reed, New York,

New York, of counsel), for Plaintiffs-

Appellants.

JOHN P. DELLERA, New York, New York

(Baker, Nelson & Williams, New York,

New York, of counsel), for Defendants-

Appellees.

McGowan, Circuit Judge:

This case concerns the availability of a private cause of

action under 39 U.S.C. § 3626(e) (Supp. V 1981). Appel-

lants, Muriel Siebert and Whitney North Seymour, Jr.,

were unsuccessful candidates for the 1982 Republican

Party nomination for United States Senator from New

York.' Appellees are the Conservative Party of the State

of New York, its state committee and four officers

thereof. Appellants sued appellees in the District Court

l Their respective campaign committees are also named as appellants.

700

alleging a variety of causes of action all related to the

support the Conservative Party gave during the primary

campaign for the Republican nomination to Florence M.

Sullivan, the winner of the Republican nomination.*

This case presents only a single question for resolution

by this court, namely, whether a private cause of action

may be implied from the terms of 39 U.S.C. § 3626(e).

We hold that it may not.

I. Background

39 U.S.C. § 3626(e)(1) extends nonprofit organization

postal rates (4 cents per piece) to “qualified political

”» 3

committees”.° A qualified political committee is defined

5

: The results of the primary were:

Sullivan: 216,486

Siebert: 157,446

Seymour: 136,974

Sullivan subsequently lost the general election by a substantial margin

to the incumbent, Senator Daniel Patrick Moynihan.

3 39 U.S.C. § 3626(e) provides:

(e)(1) In the administration of this section, the rates for third-

class mail matter mailed by a qualified political committee shall be

the rates currently in effect under former section 4452 of this title

for third-class mail matter mailed by a qualified nonprofit organiza-

tion.

(2) For purposes of this subsection—

(A) the term “qualified political committee” means a

national or State committee of a political party, the Re-

publican and Democratic Sena.orial Compaign Commit-

tees, the Democratic National Congressional Committee,

and the National Republican Congressional Committee;

(B) the ‘erm “national committee” means the organiza-

tion which, by virtue of the bylaws of a political party, is

responsible for the day-to-day operation of such political

party at the national level; and

(C) the term “State committee” means the organization

which, by virtue of the bylaws of a political party, is

responsible for the day-to-day operation of such political

party at the state level.

701

Ve

\-+

in part as “a national or State committee of a political

party”. 39 U.S.C. § 3626(e)(2)(A)(Supp. V 1981). The

United States Postal Service had interpreted this provi-

sion to limit the reduced rates to the Republican and

Democratic Parties. This limitation, however, was de-

clared unconstitutional. Greenberg v. Bolger, 497 F.Supp.

756 (E.D.N.Y. 1980). The Postal Service regulations now

permit the national or state committees of any political

party to take advantage of the special bulk mailing rates.

United States Postal Service, Domestic Mail Manual

(“DMM”) § 623.31(1982). The campaign committees of

individual candidates may not, however, use these special

rates. DMM § 623.4. An organization which qualifies for

the special rates may only mail its own matter at these

rates. DMM § 623.51. Moreover, cooperative mailings

may only be made at the special rates when each organi-

zation individually qualifies for use of the special rates.

DMM § 623.52.

During the early fall of 1982, appellants and Florence

Sullivan waged a hotly contested primary campaign for

the Republican nomination for United States Senator

from New York. The day before the primary election,

appellee, the New York State Conservative Party, mailed a

half million pieces of campaign literature, supporting

Sullivan and attacking appellants, to a specially compiled

list of Republican voters in New York State. Joint Appen-

dix (“J.A.”) at 7-8. This literature was mailed at the

reduced third-class postage rate accorded to “qualified

political committees” under 39 U.S.C. § 3626(e). J.A. at

14-15. The mailing conveyed the impression that it was

solely attributable to the New York State Conservative

Party. Jd. Indeed, it specifically represented that it was

paid for by appellee, the New York Conservative Party

State Committee. In fact, appellees paid only $4,980

702

toward printing and mailing costs. J.A. at 26. Sullivan’s

campaign committee apparently paid for the remainder.

Id. Thus, arguably, the primary eve mailing by the Con-

servative Party of the State of New York was ineligible for

the special bulk rate provided for by 39 U.S.C. § 3626(e).

Appellants brought suit in the District Court seeking to

recover their campaign expenses and to obtain an injunc-

tion which would bar appellees from using the Postal

Service to support or oppose any candidate in any future

Republican primary. J.A. at 11-12. The District Court

dismissed the suit for lack of subject matter jurisdiction

on the ground that a private citizen may not bring suit

under 39 U.S.C. § 3626(e).* Siebert v. Conservative Party,

565 F.Supp. 56 (S.D.N.Y. 1983). On appeal, appellants

argue that the District Court erred in application of the

law of implied private causes of action.

II. Discussion

Title 39 U.S.C. § 3626(e) does not provide an express

cause of action to private citizens to enforce the statute.

Appellants rely on Schiaffo v. Helstoski, 492 F.2d 413 (3d

Cir. 1974), to argue that a private cause of action under

Section 3626(e) should be implied because there is no

other means to enforce the statute. Brief of Appellants

17. In Schiaffo a divided panel of the Third Circuit held

that a private cause ci action was available to a plaintiff

under 39 U.S.C. §§ 3210-12 to enjoin a United States

Representative from mailing campaign literature to voters

under the Congressional frank privilege. The court

reasoned that, because the Postal Service never attempted

4 Appellants concede that this is the only possible ground for subject

matter jurisdiction. J.A. at 49 n.1.

703

A-6

to enforce the statute, such causes of action must be

permitted. Appellants argue by analogy that, because the

Postal Service has never enforced 39 U.S.C. § 3626(e), a

private cause of action should be allowed.

The District Court rejected this argument because the

Schiaffo court had relied on the United States Supreme

Court’s decision in J.J. Case v. Borak, 377 U.S. 426

(1964). 565 F. Supp. at 58. Because subsequent Supreme

Court decisions’ modified Borak, the District Court felt

that Schiaffo was inadequate precedent. Appellants now

argue that the Supreme Court’s most recent pronounce-

ments® require a court to consider only the “contem-

porary legal context” in which Congress legislated in

order to determine whether to imply a private cause of

action. Brief of Appellants 9-13. Appellants urge that this

means the District Court had to employ the analysis that

the Supreme Court required in 1978 when Section 3626(e)

was enacted. Jd. Therefore, it is argued that because

Borak was the governing law on implied private rights of

action in 1978, the District Court erred in relying on

post-Borak decisions. Jd.

Appellants’ argument is without merit. Appellants seize

on language from the Supreme Court’s decision in Can-

non v. University of Chicago, 441 U.S. 677, 696-97

(1979), to contend that the law must be frozen in time for

purposes of determining whether Congress intended an

implied right of action to exist. Cannon and the other

cases cited by appellants merely restate the canon of

Statutory construction that Congress is presumed to be

$ Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11 (1979);

Touche Ross & Co. v. Redington, 442 U.S. $60 (1979).

6 Merrill Lynch, Pierce. Fenner & Smith v. Curran, 456 U.S. 753

(1982); Herman & MacLean v. Huddleston, OG) LB. ccccccce CO ee

683 (1983)

704

aware of the judicial background against which it legis-

lates. A lower federal court, however, must employ the

analysis currently required by the Supreme Court for

making the determination of Congressional intent.

The Supreme Court has determined that in certain

circumstances the Congressional purpose in enactment of

legislation would be vitiated in the absence of private

remedies. Therefore, even though a private cause of

action was not expressly provided for in the legislation,

such a cause of action may be implied. See 7ransamerica

Mortgage Advisors Inc. v. Lewis, 444 U.S. 11 (1979);

Piper v. Chris-Craft Industries, 430 U.S. 1, 24-25 (1977).

A court must find, however, that Congress intended to

create such a remedy. Touche Ross & Co. v. Redington,

442 U.S. 560, 568 (1979). In Cort v. Ash, 422 U.S. 66

(1975), the Supreme Court set out a four-part test for

ascertaining legislative intent in this respect. First, is the

plaintiff one of the class for whose special benefit the

Statute was enacted? Second, does the legislative history

show any intention to deny private remedies? Third,

would private remedies frustrate the statutory scheme?

Fourth, is the subject matter of primary concern to the

states? Jd. at 80-85.

The District Court, although it did not specifically refer

to the Cort test or cite to Cort, did adequately conduct

the required analysis. First, the District Court examined

the language of the statute and noted that it was enacted

to benefit certain political committees. “Section 3626(e)

does not. . .create a cause of action in favor of anyone,

nor does it declare any conduct as being illegal.” 565

F.Supp. at 58. This indicates that the District Court did

not feel that appellants came within the class for whose

protection the statute was enacted—the first part of the

Cort test. This conclusion is unassailable. The only bene-

705

A-S

ficiaries of Section 3626(e) are political committees of a

party. Appellants are individual candidates outside the

scope of the statute.

Second, the District Court reviewed the legislative his-

tory of Section 3626(e). The court found that “it is silent

on the question whether a private party may sue another

for the improper use of a reduced mailing rate.” Jd. The

court’s conclusion in this respect is an accurate summary

of the legislative history of 39 U.S.C. § 3626(e). See S.

Rep. No. 121, 95th Cong., Ist Sess. (1977); H.R. Rep.

No. 1568, 95th Cong., 2d Sess. (1978).

Third, the District Court considered the overall scheme

of the postal statutes and concluded that Congress had

intended that they be enforced by the Postal Service and

not by private citizens. 565 F.Supp. at 58. The court

points to the statutory right of the Postal Service to sue in

its official capacity, to investigate postal offenses and to

pay rewards for information provided regarding viola-

tions. The District Court also noted that where Congress

felt a need for private remedies under the postal laws it

had expressly provided for them. See 39 U.S.C.

§ 3628(1976).

Finally, because postal matters are exclusively of fed-

eral concern, there was no need for the District Court to

address the fourth part of the Cort test.

Appellants also argue that the District Court decision is

in conflict with the Ninth Circuit’s decision in Owen v.

Mulligan, 640 F.2d 1130 (9th Cir. 1981). Brief of Appel-

lants 14. This argument also misses the mark. In Owen, a

local Republican Committee sued the Seattle Postal Ser-

vice to enforce its own regulations against nonprofit

organizations fronting for political candidates in the use

of special mail rates. The court only touched on 39

U.S.C. § 36°4(e) briefly to note that its encactment did

706

A-9

not moot the case. The court did not find that Section

3626(e) created any private cause of action. Jd. at 1133-

34. Indeed, Owen is really a suit in mandamus to require

the Postal Service to meet its statutory Juty.

The ability to maintain a suit against the Postal Service

to enforce its own regulations—which presumably ex-

tends to appellants—provides no support for the proposi-

tion, urged by appellants, that a private litigant may seek

to recover damages from another private party for an

allegedly improper use by the latter of 39 U.S.C.

§ 3626(e)(1). As recited above, and by the District Court

in its opinion, there is nothing on the face of that statute,

nor in the legislative history underlying it, that provides

any rational basis for the implication of a private cause of

action of the kind before us on this appeal.

For the reasons hereinabove appearing, the judgment

of the District Court is affirmed.

707