Pauling v. Eastland

• Decision Date: 07 September 1960
• Docket Number: No. 15963.,15963.
• Citation: 109 US App. DC 342,288 F.2d 126
• Parties: Linus PAULING, Appellant, v. James O. EASTLAND et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

109 US App. DC 342, 288 F.2d 126 (1960)

Linus PAULING, Appellant, v. James O. EASTLAND et al., Appellees.

No. 15963.

United States Court of Appeals District of Columbia Circuit.

Argued September 1, 1960.

Decided September 7, 1960.

Mr. A. L. Wirin, Los Angeles, Cal., for appellant.

Mr. Carl W. Belcher, Asst. U. S. Atty., with whom Mr. Oliver Gasch, U. S. Atty., was on the pleadings, for appellees.

Before PRETTYMAN, Chief Judge, and BAZELON and BASTIAN, Circuit Judges.

Statement of Chief Judge PRETTYMAN on Appellant's Motion for Stay Pending Appeal and on the Merits.

PRETTYMAN, Chief Judge.

In view of the limitations of time upon the appellant in this matter I am filing this somewhat sketchy memorandum of my views without attempting to formalize them into an opinion and without awaiting the statements of my brethren.

Appellant Pauling, a resident and citizen of California, participated in the preparation of a petition addressed to the United Nations, urging an international agreement for the cessation of the testing of nuclear weapons. More than eleven thousand signatures of persons from forty-nine countries appeared on the petition. The matter came to the attention of the Subcommittee on Internal Security of the United States Senate and was made a subject of inquiry by that Committee. At the conclusion of an extensive colloquy Pauling was directed clearly and succinctly by Senator Dodd, presiding at the meeting of the Subcommittee, to appear at a later date, now fixed as September 15, 1960, and to bring with him "all signatures or purported signatures to the petition presented by you to the Secretary General of the United Nations on January 15, 1958, together with all letters of transmittal by which, or in connection with which, such signatures were transmitted to you or received by you." Pauling agreed to comply with the first part of the directive, pertaining to the signatories, but declined to comply with the second part, pertaining to the letters of transmittal. Given a choice between complying with the entire directive or, by refusal, rendering himself liable to a recommendation to the Senate for citation for contempt, Pauling brought a civil action in the District Court in the District of Columbia for a declaratory judgment. His prayer was that the court declare the directive of the Subcommittee void and enjoin enforcement of the directive and possible prosecution for failure to comply. He also moved for an interlocutory stay pendente lite. The District Court dismissed the complaint. Pauling appealed and applied here for a stay.

We do not initially consider the validity of the order of the Senate Subcommttee. We must first consider a threshold question, which is the availability of judicial consideration at this point under the circumstances which have thus far transpired. Judicial authority arises upon the happening of an event or the existence of a fact, or sometimes the threat of an event or a fact. It does not come into being in vacuo. In our jurisprudence courts do not have inherent power, absent specific Constitutional or legislative provision, to render advisory opinions. We have the declaratory judgment statute. But even to invoke that process the circumstances must bring the matter within the bounds of judicial power. There must be a justiciable controversy. The action calls for the exercise of a power to declare existing law upon existing facts.¹ The Supreme Court said, in Alabama State Federation of Labor, etc., v. McAdory:²

"The requirements for a justiciable case or controversy are no less strict in a declaratory judgment proceeding than in any other type of suit. * * * This Court is without power to give advisory opinions. * * * It has long been its considered practice not to decide abstract, hypothetical or contingent questions, * * * or to decide any constitutional question in advance of the necessity for its decision, * * * or to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied, * * * or to decide any constitutional question except with reference to the particular facts to which it is to be applied * * *."

For declaratory judgment there must not only be a controversy, but the controversy must be justiciable.

Our initial question is whether the events which have thus far occurred and the factual situation which presently exists are such that the authority of the judiciary can be invoked at this point. No detention has occurred. The date when Pauling must decide whether to comply or not to comply with the directive has not arrived. He has not been cited for contempt or reported to the Senate for citation.

It seems quite clear that as a matter of basic general principle a court cannot interfere with or impede the processes of the Congress by proscribing anticipatorily its inquiries.³ This is so not only from the viewpoint of the Constitutional separation of powers between two branches of the Government but also from the practical viewpoint of simple procedural efficiency.

It is of course true, as Pauling argues, that the courts may review a judgment of conviction in a criminal case for contempt of the Congress and in such a proceeding may hold the attempted action by the Congress, or its Committee, invalid. But such a judgment by the court is clearly the exercise of a judicial function, similar to the duty and function of the court to review the impact of an enactment by the Congress upon the property or business of a citizen. If a person under indictment or under judgment of conviction is before a court and challenges the indictment or conviction, the court must apply the law, paying heed and giving effect, first of all, to Constitutional provisions. The indictment or conviction gives incidence to judicial power. There are circumstances under which a court of equity will enjoin criminal prosecutions or consider their validity in an action for declaratory judgment.⁴ These cases constitute...