395 F.2d 577 (D.C. Cir. 1968), 20897, Powell v. McCormack

Docket Nº:20897.
Citation:395 F.2d 577
Party Name:Adam Clayton POWELL, Jr., et al., Appellants, v. John W. McCORMACK, Speaker of the House of Representatives et al., Appellees.
Case Date:February 28, 1968
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 577

395 F.2d 577 (D.C. Cir. 1968)

Adam Clayton POWELL, Jr., et al., Appellants,


John W. McCORMACK, Speaker of the House of Representatives et al., Appellees.

No. 20897.

United States Court of Appeals, District of Columbia Circuit.

February 28, 1968

         As Amended July 30, 1968.

Page 578

          Mr. Arthur Kinoy, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, Messrs. Frank D. Reeves and Herbert O. Reid, Sr., Washington, D.C., with whom Mr. William M. Kunstler, New York City, and Mrs. Jean Camper Cahn, Washington, D.C., were on the brief, for appellants.

         Mr. Bruce Bromley, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Messrs. Lloyd N. Cutler, John H. Pickering, Louis F. Oberdorfer, Max O. Truitt, Jr., and Timothy B. Dyk, Washington, D.C., were on the brief, for appellees.

         Messrs. Thomas D. Barr, John R. Hupper and Jay E. Gerber, New York City, members of the bar of the Court of Appeals of New York, were also on the brief for appellee and were granted leave to appear in this case pro hac vice.

         Before BURGER, MCGOWAN and LEVENTHAL, Circuit Judges.


Page 579

         BURGER, Circuit Judge.

         This case presents for the first time the question whether courts can consider claims that a Member-elect has been improperly excluded from his seat in the United States House of Representatives. On the basis of findings by that body that Member-elect Adam Clayton Powell, Jr., had been guilty of misconduct as a Member of a prior Congress and of contumacious conduct toward the courts of the State of New York, the House voted to exclude him from the seat in the 90th Congress to which he had been elected in 1966 by the voters of the 18th Congressional District of New York. 1

         This suit was brought by Mr. Powell and thirteen voters 2 of the 18th Congressional District of New York in the United States District Court for the District of Columbia. Appellants sought injunctive relief, mandamus, and a declaratory judgment against Appellees who are Members and officials of the House of Representatives of the 90th Congress. Appellees were sued individually, in their official positions, and as representatives of all Members of the House of Representatives. 3 The complaint was accompanied by a motion to convene a statutory three-judge court. The District Court dismissed Appellants' complaint for want of subject matter jurisdiction, Powell v. McCormack, 266 F.Supp. 354 (D.D.C.1967).

         While Appellants' claims actually arose as a result of action taken by the House at the time of the organization of the 90th Congress, the factual genesis of that action derived from events involving the alleged conduct of Member-elect Powell during earlier Congresses. The underlying events were summarized in a House Report as follows:

         During the 89th Congress open and widespread criticism developed with respect to the conduct of Representative Adam Clayton Powell, of New York. This criticism emanated both from within the House of Representatives and the public, and related primarily to Representative Powell's alleged contumacious conduct toward the courts of the State of New York and his alleged official misconduct in the management of his congressional office and his office as chairman of the Committee on Education and Labor. There were charges Representative Powell was misusing travel funds and was continuing to employ his wife on his clerk-hire payroll while she was living in San Juan, P.R., in violation of Public Law 89-90, and apparently performing few if any official duties.

         In September 1966, as the result of protests made by a group of Representatives serving on the Committee on Education and Labor, the Committee on House Administration, acting through its chairman, issued instructions for the cancellation of all airline credit cards which had been issued to the Committee on Education and Labor and notified Chairman Powell that all future travel must be specifically approved by the Committee on House Administration prior to undertaking the travel.

         The Special Subcommittee on Contracts of the Committee on House Administration, under the chairmanship of Representative Hays of Ohio, conducted an investigation into certain expenditures of the Committee on Education and Labor, which focused primarily on the travel expenses of Chairman Powell and of the committee's staff during the 89th Congress, and the clerk-hire status of Y. Marjorie Flores. Hearings were held on December 19, 20, 21 and 30, 1966, and a

Page 580

report (H. Res. 2349) was filed just prior to the end of the 89th Congress. * * * Subsequent to the report of the Hays subcommittee and prior to the organization of the 90th Congress, the Democrat Members-elect, meeting in caucus, voted to remove Representative-elect Powell from his office as chairman of the Committee on Education and Labor. 4

         The 90th Congress met to organize on January 10, 1967. At that time Member-elect Van Deerlin, of California, objected to the administration of the oath to Member-elect Powell. 5 Upon request, Member-elect Powell stepped aside while the oath was administered to the other Members-elect. Shortly thereafter Representative Udall, of Arizona, introduced a resolution that the oath be administered to Member-elect Powell and that the question of his final right to be seated as a Member of the 90th Congress be referred to a select committee. The debate on this resolution centered on whether to seat Member-elect Powell or to delay his seating pending a committee investigation. Before a vote was taken, Member-elect Powell was permitted to make a statement to the House. The Udall resolution was replaced by a substitute resolution offered by Representative Ford, of Michigan, which was then adopted as House Resolution 1, 90th Congress 1st Session. 6

         House Resolution 1 referred to a Select Committee the question of whether or not Mr. Powell should be seated. This Select Committee was to be comprised of nine members selected by The Speaker, four of whom would be members of the minority party, designated by the Minority Leader. The Select Committee was authorized to hold hearings and compel the attendance of witnesses and the production of documents by subpoena. House Resolution 1 prohibited Mr. Powell from being sworn in or seated until the House acted on the Committee report. Mr. Powell, however, was permitted to receive the pay, allowances, and emoluments of a Member during the course of the investigation. The Select Committee was to report to the House within five weeks after its members were appointed.

         On January 19, 1967, The Speaker appointed nine lawyer-Members to the bipartisan Select Committee. 7 The Select Committee wrote Mr. Powell on February 1, 1967, inviting him to testify and respond to interrogation before the Committee on February 8, 1967. The stated scope of the testimony and interrogation was to include Mr. Powell's

         qualifications of age, citizenship and inhabitancy, and the following other matters:

         (1) The status of legal proceedings to which (Mr. Powell was) a party in the State of New York and in the Commonwealth of Puerto Rico, with particular reference to the instances in which (he had) been held in contempt of court;

         (2) Matters of (Mr. Powell's) alleged official misconduct since January 3, 1961. 8

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The letter further advised Mr. Powell that he could be accompanied by counsel and that the hearings would be conducted in accordance with House Rule XI, paragraph 26. 9

         Mr. Powell appeared at the February 8 hearing, accompanied by his attorneys. At this time the Chairman, Mr. Celler, without objection from Mr. Powell, took official notice of the published hearings and conclusions of the Special Subcommittee on Contracts of the Committee on House Administration, relating to the investigation of Mr. Powell conducted during the 89th Congress. See note 4 supra, and accompanying text. The Chairman then explained that, in addition to the rights set forth in the letter of February 1, counsel for Mr. Powell would be permitted a reasonable length of time for oral argument and Mr. Powell would be permitted to make a statement to the Committee on all matters as to which he was invited to testify.

         Counsel for Mr. Powell moved that the Committee limit its inquiry to Mr. Powell's age, citizenship, and inhabitancy and that, because the scope of the Committee's inquiry was constitutionally limited to these three requirements, it immediately terminate its proceedings and report to the House that Mr. Powell was entitled to his sear. 10 After oral argument on these motions Mr. Powell's counsel made several procedural motions asserting the invalidity of the Committee proceedings for failure to provide adequate notice and comply with the due process requirements of an adversary proceeding. In addition, certain specific procedural rights were requested:

         1. Fair notice as to the charges now pending against him, including a statement of charges and a bill of particulars by any accuser. 2. The right to confront his accuser, and in particular to attend in person and by counsel, all sessions of this committee at which testimony or evidence is taken, and to participate therein with full rights of cross-examination. 3. The right fully in every respect to open and public hearings in every respect in the proceedings before the select committee. 4. The right to have this committee issue its process to summon witnesses whom he may use in his defense. 5. The right to a transcript of every hearing. 11

         After the Committee took these motions...

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