League of Women Voters of California v. FCC, CV-79-1562-MML.

• Decision Date: 10 March 1980
• Docket Number: No. CV-79-1562-MML.,CV-79-1562-MML.
• Citation: 489 F. Supp. 517
• Parties: LEAGUE OF WOMEN VOTERS OF CALIFORNIA et al., Plaintiffs, v. FEDERAL COMMUNICATIONS COMMISSION, Defendant.
• Court: U.S. District Court — Central District of California

489 F. Supp. 517

LEAGUE OF WOMEN VOTERS OF CALIFORNIA et al., Plaintiffs, v. FEDERAL COMMUNICATIONS COMMISSION, Defendant.

No. CV-79-1562-MML.

United States District Court, C. D. California.

March 10, 1980.

Alletta d'A. Belin, John R. Phillips, Walter Cochran Bond, Timothy B. Flynn, Carlyle W. Hall, Jr., A. Thomas Hunt, Jan G. Levine, of Center for Law in the Public Interest, Los Angeles, Cal., for plaintiffs.

Alice Daniel, Asst. Atty. Gen., Washington, D. C., Andrea Sheridan Ordin, U. S. Atty., Stephen D. Petersen, Asst. U. S. Atty., Los Angeles, Cal., Barbara B. O'Malley, Lewis K. Wise, Attys., Dept. of Justice, Washington, D. C., for defendant.

Michael Davidson, Senate Legal Counsel, Charles Tiefer, Asst. Senate Legal Counsel, Washington, D. C., for amicus curiae United States Senate.

ORDER GRANTING UNITED STATES SENATE'S MOTION TO APPEAR AMICUS CURIAE, DENYING PLAINTIFFS' MOTION TO DISALLOW FILING OF SENATE'S MOTION TO DISMISS, AND GRANTING SENATE'S MOTION TO DISMISS

LUCAS, District Judge.

This action was originally commenced on April 30, 1979 by the League of Women Voters of California, Congressman Henry Waxman, and Pacifica Foundation against the Federal Communications Commission seeking declaratory and injunctive relief against the enforcement of 47 U.S.C. § 399(a). That section forbids noncommercial broadcast licensees to editorialize or to endorse or oppose candidates for public office. Subsequently, a first amended complaint was filed on August 28, 1979. The gravamen of the complaint is that 47 U.S.C. § 399(a) is unconstitutional on its face in that it violates the First Amendment rights to freedom of speech and of the press and, as to plaintiff Pacifica, that it violates the equal protection of the laws under the due process clause of the Fifth Amendment. Plaintiffs noticed a motion for summary judgment on September 24, 1979. In the Stipulation re: Time for Filing Defendant's Response to Plaintiff's Motion for Summary Judgment and Hearing Thereon, filed on October 23, 1979, the FCC stated that it had "determined to discontinue its defense of the constitutionality of Section 399(a). . . ." and that it had so advised the Congress. On January 18, 1980 defendant again stated that it would not defend this action.

On January 17, 1980 the United States Senate filed a motion to appear as amicus curiae and subsequently filed the instant motion to dismiss. In response, plaintiffs filed their motion to disallow the filing of the motion to dismiss. By stipulation of the parties, the hearing on plaintiffs' motion for summary judgment was continued until after the decision by the Court on the motions to appear as amicus curiae, to disallow the filing of the motion to dismiss and, contingently, the motion to dismiss.

The Senate's motion to appear as amicus curiae and motion to dismiss and plaintiffs' motion to disallow the filing of the Senate's motion to dismiss came on for hearing before the Honorable Malcolm M. Lucas, United States District Judge on March 3, 1980. After thoroughly considering the papers filed in this action and the arguments advanced at the hearing, the Court makes the following findings:

MOTION TO APPEAR AS AMICUS CURIAE

The United States Senate has a right to appear as an amicus in this action under the provisions of 2 U.S.C. §§ 288e(a) and 288l(a). Those statutes allow the Senate to appear unless the Court finds that the appearance is untimely and that it would significantly delay the pending action. The Court does not so find and, without objection from the parties, hereby grants the motion.

MOTION TO DISALLOW THE FILING OF SENATE'S MOTION TO DISMISS

The Court finds that the role of an amicus is flexible and can be moulded by the Court to best serve the exigencies of the particular action. In this instance, the present motion by the Senate would in no manner interfere with the conduct of the case by the defendant. As an alternative, the Court is free to treat the motion to dismiss as a suggestion that the Court lacks subject matter jurisdiction. Such a suggestion is appropriate at any point and may be made sua sponte by the Court. In any event, the Court finds that the consideration of the motion to dismiss would substantially advance the litigation and hereby allows it to be filed. Therefore, the Court hereby denies plaintiffs' motion.

MOTION TO DISMISS

As the federal courts are courts of limited jurisdiction it is necessary in the first instance for the Court to satisfy itself that this action is one over which jurisdiction under the Constitution exists and as to which competency has been granted to this Court by Congress. These constitutional considerations are often grouped under the rubric justiciability which itself comprises ripeness, adversariness, standing, and so on. The language of Article III of the Constitution speaks of jurisdiction over "cases" and over "controversies". Therefore, the Court must ultimately find that a case or controversy exists. Notions of justiciability are simply means toward that end.

The difficulty in resolving these questions stems in large measure from the difficulty in framing standards and requirements that are susceptible to ready and widespread application. In most instances, the questions are of degree and the result turns upon an assessment of the particular action's place on a continuum from clearly nonjusticiable to clearly justiciable. The only real guidance, apart from attempts in the case law to articulate descriptive standards, comes from comparison with the facts and results of case after case after case. Similar complications arise from the fact that in many cases the Court must be aware that a properly justiciable action is almost certain to arise with a seemingly ineluctable or inconsequential change in the facts. In such instances the temptations are great to move forward to the merits and the considerations of case or controversy are further compounded.

Nevertheless, despite the difficulties of framing and resolving the issues, the necessity of evaluating and placing an action on a seeming "slippery slope", and the frustrations attendant in determining whether a salient issue is proper for present adjudication, the Court must patiently determine that every action brought before it meets the constitutional requirements for adjudication. Failure so to determine jeopardizes the delicate array of powers established by the Constitution and vitiates the assurance, which such a determination brings, that the Court is acting in that characteristic but undefinable "judicial" mode. While these considerations inhere in every action in the federal courts, they become literally vital when, as here, the Court is asked to exercise its most potent and grave power: declaring an Act of Congress invalid as contrary to the Constitution. The necessity of grappling with these considerations has often and eloquently been developed but no where is it more pungently formulated than in Mr. Justice Brandeis's frequent remark that "the most important thing we do is not doing". With these considerations in mind, the Court proceeds to examine the present action.

Questions of ripeness are often turned around and presented as questions of standing. Whether the Court deals with one measure or the other turns upon the posture of the particular facts. In this instance it is more useful to consider the question as one of ripeness. In other words, is this action as presented by these parties proper for judicial resolution now. At bottom, the Court must balance and trade off the value in deciding the question now against the harm to the parties in...