Hoellen v. Annunzio

• Decision Date: 15 September 1972
• Docket Number: No. 72 C 1302.,72 C 1302.
• Citation: 348 F. Supp. 305
• Parties: John J. HOELLEN and Hugh H. Carmichael, Individually and as representative of a class similarly situated, Plaintiffs, v. Frank ANNUNZIO, Defendant.
• Court: U.S. District Court — Northern District of Illinois

348 F. Supp. 305

John J. HOELLEN and Hugh H. Carmichael, Individually and as representative of a class similarly situated, Plaintiffs, v. Frank ANNUNZIO, Defendant.

No. 72 C 1302.

United States District Court, N. D. Illinois, E. D.

September 15, 1972.

COPYRIGHT MATERIAL OMITTED

B. John Mix, Jr., Chicago, Ill., for plaintiffs.

James A. Dooley, Anthony J. Fornelli, Chicago, Ill., for defendant.

MEMORANDUM OF DECISION

TONE, District Judge.

This is an action challenging the use of the franking privilege by a Member of Congress for certain mailings which are alleged not to have been "upon official business" within the meaning of 39 U.S.C. § 3210. The case proceeded to trial before the court without a jury on an amended complaint seeking injunctive relief.

Congressman Frank Annunzio, the defendant, was elected in 1970 in the then Seventh Congressional District. He is now the Democratic candidate for Member of Congress in the new Eleventh Congressional District.¹ There is no overlap between the two districts. The plaintiff is Congressman Annunzio's Republican opponent in the Eleventh Congressional District, John J. Hoellen.²

In May 1972 the defendant used his franking privilege to mail 134,000 printed questionnaires asking for opinions on various public issues. Approximately 34,000 were addressed to persons who were his constituents in the old Seventh District, in which he is the incumbent Congressman, and approximately 100,000 were addressed to persons in the new Eleventh District, where he is a candidate. Printed on one side of the questionnaire are a picture of the Capitol, a picture of Congressman Annunzio, and in large type, "Congressman Frank Annunzio Asks Your Opinion!" Then follows a letter, with the salutation, "Dear Friend," signed by Congressman Annunzio, urging the addressee to fill out the questionnaire. The dateline shows "May 1972" and "Vol. 1, No. 1." The questionnaire portion is printed on the reverse side.

The names and addresses for the mailing were obtained from voter registration sheets. The mailing to the Eleventh District was to addressees in what defendant described as the six major wards in that district. The mailing to the Seventh District was to addressees in parts of each of three of the wards in that district.

Although Congressman Annunzio is in his fourth term, he has never before mailed a questionnaire. Shortly after the mailing he asked the opinion of Congressman Morris K. Udall, Chairman of the Subcommittee on Postal Service of the House Committee on Post Office and Civil Service as to the propriety of the mailing. Congressman Udall replied by a letter, received in evidence, in which he reviewed the contents of the questionnaire, noted that it is similar to those "mailed daily by hundreds of Members of Congress" and concluded that the questionnaire could properly be sent as franked mail. It does not clearly appear that the question of whether the mailing could be made to the district in which Congressman Annunzio was only a candidate was expressly presented to Congressman Udall, but his letter did state:

"Legally speaking, a member of Congress can send `official business' (which your questionnaire is) anywhere in the United States."

In April the defendant used his franking privilege to mail some 300 copies of a brochure entitled, "The Capitol," which had been printed as a House of Representatives document pursuant to the authority of a Congressional resolution. Some—the evidence does not indicate how many—were mailed to persons in the Eleventh District. The plaintiff has withdrawn his contention that this mailing was improper. 39 U.S.C. § 3211 expressly permits sending any public document printed by order of Congress as franked mail, without restriction as to addressee or purpose.

The other three mailings complained of were made in July 1972 after the filing of this action. They consisted of news releases, approximately 200 of which were sent to news services and newspapers throughout the country, including neighborhood newspapers in the Eleventh District, and to community leaders who would presumably be interested in the subjects of the releases, some of whom were in that district. One release dealt with a reduction in Government crime insurance policy rates by the Department of Housing and Urban Development made at the suggestion of Congressman Annunzio; the second announced House passage of a "Copernicus Day" resolution; and the third announced introduction by the Congressman of a resolution for a "National Sokol U.S.A. Day." Each of the releases carried Congressman Annunzio's picture.

A memorandum has been submitted to the Court by the Committee on House Administration of the United States House of Representatives as amicus curiae, pointing out "a congressional intention that the franking privilege not be unlimited," but further urging that "in general, the regulation of the privilege is a congressional and not a judicial matter," that "the federal courts should adopt an attitude of restraint in passing upon usages by Members of Congress of the franking privilege," that "the Court should not in any event adopt an approach which will subject Congressmen to detailed inquiries regarding their motives and purposes in the conduct of their offices," and that injunctive relief against further franked mailings "would be improper and would impair proper utilization of the franking privilege." I am sympathetic with the concerns expressed by the Committee, and yet as I view the law I have a duty to assume jurisdiction, interpret the statute as it applies to the facts before me, and decide the case.

Postal Statutes and Regulations

The privilege of sending franked mail is conferred on Members of Congress by 39 U.S.C. § 3210, et seq. That section permits them, and other named public officials, to "send as franked mail—

"(1) matter, not exceeding 4 pounds in weight, upon official or departmental business, to a Government official; and

"(2) correspondence, not exceeding 4 ounces in weight, upon official business to any person."

Other provisions of Title 39 authorize Members of Congress to use the franking privilege to send any public document, any part of the Congressional record, and seeds and agricultural reports emanating from the Department of Agriculture, without restriction as to purpose or addressee (§§ 3211, 3212, 3213); authorize a former President to send all his domestic mail as franked mail (§ 3214); and allow the surviving spouse of a Member of Congress to send correspondence relating to his death as franked mail for 180 days after his death (§ 3218). A person entitled to use the frank is prohibited from lending it or permitting its use by or for the benefit of any committee, organization, or association except a Congressional committee (§ 3215). Payment of the postage on franked mail to the Postal Service from public funds is provided for (§ 3216).

Postal Service regulations repeat the restriction that "official correspondence transmitted under frank of . . . Members . . . of Congress . . . must be on official or departmental business." 39 C.F.R. § 137.1(d)(1). The regulations also provide,

"Official mail of any kind must not be detained even though there are indications of abuse of official mailing privileges. It must be promptly dispatched and delivered to the addressee. Reports of the indicated abuse must be submitted to the Bureau of Finance and Administration, Office of Mail Classification." 39 C.F.R. § 137.9(a).

Another provision of the regulations provides that Members and Members-elect of the House, unlike Senators, may address mail sent under the franking privilege for delivery to postal patrons (i. e., not addressed to the recipient by name and post office address) within his district. 39 C.F.R. § 122.4(d)(2). That provision is not involved here. All the mailings were to named addressees.

Enforcement by the Post Office

Until recently the Post Office Department exercised some supervision over the use of the frank by Members of Congress. Until 1968, the Department took the position that it was "required to determine whether mail has been sent improperly under the frank," and when it found improper use of the frank the Department was "charged with responsibility for collecting the postage which should have been paid." The Congressional Franking Privilege, POD Publication 126 (April 1968), p. 1. When, in the opinion of the General Counsel of the Post Office Department, the frank was improperly used, the Department requested payment of postage, although it took no action to collect. The General Counsel also rendered advisory opinions to members of Congress and members of the public, upon request, as to whether given material could properly be sent as franked mail.

The Department changed its position in 1968. It decided that the official business limitation of the statute was after all not "a directive to the Executive Branch, but is really more of a guideline for the conduct of Congress's own members." Noting that Congress "nowhere expressly enjoins the Post Office Department to police the behavior of individual Members of Congress in their use of their franking privilege," the Department concluded that its "involvement" had reached "the point at which the mailings of a substantial number of Congressmen are being questioned on a continuing basis," and that continuation of the practice would "find the Executive Branch becoming increasingly involved in the conduct of the official duties of the Congress, even to the point of engaging in censorship." Accordingly, the practice of requesting payment from Congressmen who were found to have misused their franking privilege was discontinued, although advisory opinions were still furnished on request. Memorandum of Timothy J. May, General Counsel, Post Office Department, dated December 26, 1968, printed in Law and Regulations Regarding Use of the Congressional Frank, Committee Print No. 14, 92d Cong., 1st...