Dornan v. Sanchez, SA CV 97-176-GLT[CC].

Decision Date23 September 1997
Docket NumberNo. SA CV 97-176-GLT[CC].,SA CV 97-176-GLT[CC].
Citation978 F.Supp. 1315
CourtU.S. District Court — Central District of California
PartiesRobert K. DORNAN, Contestant, v. Loretta SANCHEZ, Contestee.

William R. Hart, Hart, King & Coldren, Santa Ana, CA, for Contestant.

Frederic D. Woocher, Strumwasser & Woocher, Santa Monica, Ca, for Contestee.

ORDER

TAYLOR, District Judge.

The court holds, among other things, the deposition subpoena provisions of the Federal Contested Elections Act, 2 U.S.C. § 381 and following, are constitutional.

I. BACKGROUND

By less than a thousand votes, incumbent Robert Dornan was defeated by challenger Loretta Sanchez in the 1996 general election for the 46th Congressional District seat in the United States House of Representatives. Dornan filed an election contest in the House of Representatives under the Federal Contested Elections Act (referred to as "FCEA" or "the Act") 2 U.S.C. § 381 and following. That contest is currently pending before the House of Representatives Committee on House Oversight.

Under the discovery authority of FCEA, Dornan requested this court to issue numerous subpoenas for depositions and extensive production of documents. This court previously held a court's only authorized participation in the FCEA is to issue requested deposition subpoenas apparently regular on their face. Dornan v. Sanchez, 955 F.Supp. 1210, 1211 (C.D.Cal.1997) (construing 2 U.S.C. § 388(a) and other provisions of the Act). Dornan served a large number of issued subpoenas, and numerous discovery disputes followed.

In the present dispute, an immigrants assistance organization, Hermandad Mexicana Nacional (Hermandad) sought a stay from this court of a deposition and documents production under a Dornan subpoena to the Orange County district attorney seeking Hermandad records the D.A. had previously seized. Among other things, Hermandad challenged the constitutionality of the FCEA's subpoena provisions. Ruling that unconstitutionality of the enabling statute would render the court's subpoenas "irregular on their face," the court temporarily stayed the D.A.'s deposition until the constitutionality issue could be ruled on.

In briefing, Hermandad also contends the notice to it of the district attorney's deposition was untimely. Sanchez joins in the unconstitutionality argument, and also asserts Dornan's counsel should be disqualified for alleged subpoena use misconduct.

Pending the hearing, Dornan withdrew the subpoena to the district attorney, and contended the matter had now become moot. By minute order, the court ruled it appeared the matter was not moot, and ordered the matter to go forward. The matter has now been fully briefed and heard, and is ready for decision.1

II. DISCUSSION

Each House of Congress is the exclusive judge of the elections and returns of its own members. United States Constitution, Article I, Section 5. The Federal Contested Elections Act establishes the procedure for an election contest in the House of Representatives. 2 U.S.C. §§ 381-396.

The court holds the discovery subpoena provisions of the FCEA are constitutional. No ruling is made on the motion to disqualify counsel, and questions of timely deposition notice must be decided by the House of Representatives.

A. CONSTITUTIONALITY OF THE ACT'S DISCOVERY SUBPOENA PROVISION

The Federal Contested Elections Act provides for discovery depositions in preparation for the election contest, and issuance of deposition subpoenas by a judge or clerk of a federal district, state, or county court upon application by any party to the election contest. Id. §§ 386-388.

Sanchez and Hermandad Mexicana Nacional challenge the constitutionality of the discovery subpoena provisions in the Federal Contested Elections Act, 2 U.S.C. § 381 and following, on several different grounds.

In order to succeed in a claim that the FCEA is unconstitutional on its face, the challengers "must establish that no set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987). The fact the statute's procedures may be "insufficient in some particular circumstances" is not enough. Id. at 751, 107 S.Ct. at 2103. Statutes will be construed to avoid serious constitutional questions. See New York v. Ferber, 458 U.S. 747, 769 n. 24, 102 S.Ct. 3348, 3361 n. 24, 73 L.Ed.2d 1113 (1982). The court is obligated, whenever possible, to interpret a statute in a manner which renders it constitutionally valid. Communications Workers of America v. Beck, 487 U.S. 735, 762, 108 S.Ct. 2641, 2657, 101 L.Ed.2d 634 (1988). The court must begin with the presumption that the challenged statute is valid; its wisdom is not the concern of the court, and if a challenged action does not violate the Constitution it must be upheld. INS v. Chadha, 462 U.S. 919, 944, 103 S.Ct. 2764, 2780-81, 77 L.Ed.2d 317 (1983).

1. Mootness

Dornan has withdrawn the subpoena to the district attorney. He argues this makes the constitutional issue moot. It is "an established and salutary principle of the law of federal courts that constitutional issues affecting legislation will not be determined `in advance of the necessity of deciding them' or `in broader terms than are required by the precise facts to which the ruling is to be applied.'" Hastings v. Judicial Conference of the United States, 770 F.2d 1093, 1101 (D.C.Cir.1985) (quoting Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549, 569, 67 S.Ct. 1409, 1420, 91 L.Ed. 1666 (1947)). "[E]ven when jurisdiction exists it should not be exercised unless the case `tenders the underlying constitutional issues in clean-cut and concrete form.'" Socialist Labor Party v. Gilligan, 406 U.S. 583, 588, 92 S.Ct. 1716, 1719, 32 L.Ed.2d 317 (1972) (quoting Rescue Army, 331 U.S. at 584, 67 S.Ct. at 1427).

But, it is also well-settled that "a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice." City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 1074, 71 L.Ed.2d 152 (1982). "Only if there is no reasonable expectation the action will recur is such a case deemed moot." Native Village of Noatak v. Blatchford, 38 F.3d 1505, 1510 (9th Cir.1994) (citing United States v. W.T. Grant Co., 345 U.S. 629, 632-33, 73 S.Ct. 894, 897-98, 97 L.Ed. 1303 (1953)).

The question of the Act's discovery subpoena provision's constitutionality is important and is squarely presented by the parties for decision. Although the subpoena to the district attorney has been withdrawn, Dornan could seek to revive it. Additionally, the parties acknowledge several other subpoenas remain outstanding, and the House's Committee has ruled they remain valid and enforceable. The court's subpoenas would be void if the portion of the Act which authorizes them is unconstitutional. Therefore, the court finds the issue is not moot, and should be decided.

2. The Historical Record

The early history and prior interpretation of federal contested election laws can provide important guidance for constitutional interpretation of the present Act. The Supreme Court recently reemphasized in Printz v. United States, ___ U.S. ___, ___, 117 S.Ct. 2365, 2370, 138 L.Ed.2d 914 (1997),

[E]arly congressional enactments "provid[e] `contemporaneous and weighty evidence' of the Constitution's meaning." Bowsher v. Synar, 478 U.S. 714, 723-724, [106 S.Ct. 3181, 3186, 92 L.Ed.2d 583] (1986) (quoting Marsh v. Chambers, 463 U.S. 783, 790, [103 S.Ct. 3330, 3335, 77 L.Ed.2d 1019] (1983)). Indeed, such "contemporaneous legislative exposition of the Constitution ..., acquiesced in for a long term of years, fixes the construction to be given its provisions." Myers v. United States, 272 U.S. 52, 175, [47 S.Ct. 21, 45, 71 L.Ed. 160] (1926) (citing numerous cases).

In addressing a challenge to another statute originally enacted by the Fifth Congress, the Court noted "[t]he Act is almost as old as the Constitution, and it would savor of doctrinaire audacity now to find the statute offensive to some emanation of the Bill of Rights." Ludecke v. Watkins, 335 U.S. 160, 171, 68 S.Ct. 1429, 1434, 92 L.Ed. 1881 (1948) (opinion of Frankfurter, J.).

Federal election contests may be initiated by the House of Representatives itself, based either on a protest filed by a person outside the House or on a motion made by a member. See S.Rep. No. 91-546 (1969), reprinted in 1969 United States Code of Congressional and Administrative News 1456, 1457. Historically, however, the vast majority of election contests have been initiated by private parties (usually another candidate), rather than the House itself. See Relating to Election of a Representative from the Eight District of Indiana, H.R.Rep. No. 99-58, at 3 (1985) ("It is no doubt unusual for the House to initiate its own investigation into the results of an election."). The House has generally recognized such contests resemble in some respects public inquiries and in other respects private litigation, although obviously with a significant public interest. See e.q., 2 Asher C. Hinds, Hinds' Precedents of the House of Representatives § 988 (1907).

In 1798, Congress first enacted a statute permitting parties to election contests to obtain subpoenas for evidence discovery. An Act of January 23, 1798, enacted by the Fifth Congress, provided

where any person ... shall intend to contest an election for any member or members of the House of Representatives of the United States, or to support any such election so intended to be contested, and shall be desirous of obtaining testimony respecting such election, it shall be lawful for such person to make application to any judge of the Courts of the United States, or to any chancellor, justice, or judge, of a superior or county court, or court of common pleas, of any State, or to any mayor, recorder, or intendant, of a town or city,...

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