Powell v. McCormack

• Decision Date: 29 May 1967
• Docket Number: Civ. A. No. 559-67.
• Citation: 266 F. Supp. 354
• Parties: Adam Clayton POWELL, Jr., et al., Plaintiffs, v. John W. McCORMACK et al., Defendants.
• Court: U.S. District Court — District of Columbia

266 F. Supp. 354

Adam Clayton POWELL, Jr., et al., Plaintiffs, v. John W. McCORMACK et al., Defendants.

Civ. A. No. 559-67.

United States District Court District of Columbia.

April 7, 1967.

Certiorari Denied May 29, 1967.

Frank D. Reeves, Herbert O. Reid, Sr., Jean Camper Cahn, Washington, D. C., and Robert L. Carter, Hubert T. Delany, Arthur Kinoy, William M. Kunstler, and Henry R. Williams, New York City, for plaintiffs.

Bruce Bromley, John R. Hupper, Thomas D. Barr, Victor M. Earle, III, Jay E. Gerber, New York City, and Lloyd N. Cutler, Louis F. Oberdorfer, Max O. Truitt, Jr., Timothy B. Dyk, and James S. Campbell, Washington, D. C., for defendants.

Certiorari Denied May 29, 1967. See 87 S.Ct. 2056.

OPINION

HART, District Judge.

This is an action for injunctive relief, mandamus, and declaratory judgment brought by Adam Clayton Powell, Jr., and thirteen electors of New York's 18th Congressional District. Defendants are Members and Officials of the House of Representatives of the 90th Congress sued individually, in their official positions, and as representatives of all House Members. The complaint alleges that House Resolution 278, passed March 1, 1967, by a vote of 307 to 116, improperly excluded Powell from House membership in violation of the plaintiffs' Constitutional rights.

Plaintiffs assert that Powell meets the qualifications of age, citizenship, and inhabitancy specified in Article I, Section 2, Clause 2 of the Constitution (and holds a valid certificate of election) and that under Article I, Section 5, Clause 1, these are the exclusive tests for admission to House membership. In addition, plaintiffs allege that House Resolution 278 subjects them to discrimination based upon race and color in violation of the 5th, 13th, and 15th Amendments to the Constitution; that the Resolution constitutes a bill of attainder, an ex post facto law, and cruel and unusual punishment; and that adoption of the Resolution violated procedural due process and the 6th Amendment.

APPLICATION FOR A THREE-JUDGE COURT

28 U.S.C. § 2282 provides as follows:

"An interlocutory or permanent injunction restraining the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution of the United States shall not be granted by any district court or judge thereof unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title."

It is plain by its terms that the foregoing section applies to an "Act of Congress" only. The history of the statute is wholly consistent with this interpretation. The matter complained of here, House Resolution 278, is patently not an Act of Congress. It follows, therefore, that convening a statutory three-judge court to consider the issues raised by the complaint is neither required nor authorized.

The question whether a joint resolution of Congress, approved by the President, would be an "Act of Congress" within the meaning of 28 U.S.C. § 2282 is not before this Court and, therefore, is not decided. In any event, the decision of the Court on the motion to dismiss would moot the question of the right of plaintiffs to a three-judge court in the case at bar.

MOTION TO DISMISS — JURISDICTION

The defendants have moved under Rule 12(b) of the Federal Rules of Civil Procedure to dismiss the complaint for the following reasons:

1. This Court does not have jurisdiction over the subject matter of this action;

2. This Court does not have jurisdiction over the persons of the defendants;

3. The complaint fails to state a claim upon which relief may be granted.

In their brief the defendants have broken down the three contentions for dismissal set forth above into a number of sub-heads. Each of these sub-heads has been briefed and argued with learning and care by both sides.

1. Speech or Debate Clause

In the English Bill of Rights ("An Act Declaring the Rights and Liberties of the Subject, and Settling the Succession of the Crown; passed in the 1st year of William and Mary, A.D. 1689") it was provided:

"That the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament." Emphasis added

This provision was carried forward in our Constitution, Article I, Section 6, Clause 1, in the following language:

"* * *; and for any Speech or Debate in either House, they The Senators and Representatives shall not be questioned in any other Place." Emphasis added

The above provision of the Constitution may well bar jurisdiction of the Court in the matter here in controversy, but the Court does not bottom its decision on this point.

2. Right of the House of Representatives to Determine the Qualifications of Its Own Members

The question of whether there is an absolute right in the House of Representatives to determine the qualifications of its own members will not be touched on herein.

Let us consider whether the House has correctly interpreted the word "qualifications" in Article I, Section 5, Clause 1 of the Constitution which provides:

"Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business * * *." Emphasis added

It can be argued with great force and conviction that the word "qualifications" covers any cause that the Members of the House, by majority vote, choose it to cover, including:

1. Contempt of the Courts of New York 2. Improper maintenance of an employee on a Member's clerk-hire payroll;

3. As a Member and committee chairman, permitting and participating in improper expenditure of government funds for private purposes; and

4. Acting in a manner contemptuous of the House and unworthy of a Member of the House of Representatives.

On the other hand, it can be argued with force and conviction that in light of Article I, Section 5, Clause 2 of our Constitution, which reads:

"Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member."

the word "qualifications" in Article I, Section 5, Clause 1 is limited to age, length of citizenship, and inhabitancy in the state from which a person shall be chosen, as provided in Article I, Section 2, Clause 2, plus a valid election certificate.

The Court deems it unnecessary to resolve this question in view of its disposition of the matter of jurisdiction under the doctrine of separation of powers.

3. Separation of Powers

In this Court's view of the case, the complaint and the relief prayed for raise one issue of such transcendent importance that all other issues in the case pale into insignificance. This issue constitutes a "political question." The question facing the Court may be simply stated as follows: Would consideration of the complaint on the merits and granting any of the requested relief violate the doctrine of "separation of powers"?

At first blush it might be thought that the Supreme Court answered this question in the negative in Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966). In that case the Supreme Court invalidated a resolution of one branch of the Georgia Legislature refusing to seat Bond, holding that the resolution violated Bond's right to freedom of speech guaranteed by the First Amendment of the federal Constitution. The Bond case did not present a "political question" nor did it raise the question of separation of powers between co-ordinate branches of government.

The Supreme Court stated concisely when a "political question," which includes the doctrine of separation of powers, arises, and when it does not arise, in the case of Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), when the Court said:

"In the * * * `political question' cases, it is the relationship between the judiciary and the coordinate branches of the Federal Government, and not the federal judiciary's relationship to the States, which gives rise to the `political question.'

"* * * The nonjusticiability of a political question is primarily a function of the separation of powers." 369 U.S. at 210, 82 S.Ct. at 706.

As to the precise issue which I deem to be raised here, there are no cases directly in point. This Court has not found a case nor has any been cited to it where the complaint and the relief prayed therein have posed to the Court with such stark clarity the question of separation of powers between the Legislature, as represented by the House of Representatives of the United States, and the Federal Judiciary. The following cases may be said to touch on the point but each of them is easily distinguishable on its facts:

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803); Luther v. Borden, 48 U.S. (7 Howard) 1, 12 L.Ed. 581 (1849); State of Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 18 L.Ed. 437 (1867); Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377 (1880); United States v. Ballin, 144 U.S. 1, 12 S.Ct. 507, 36 L.Ed. 321 (1892); In re Chapman, 166 U.S. 661, 17 S.Ct. 677, 41 L.Ed. 1154 (1897); Com. of Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923); Springer v. Government of Philippine Islands, 277 U.S. 189, 48 S.Ct. 480, 72 L.Ed. 845 (1928); Barry v. United States ex rel. Cunningham, 279 U.S. 597, 49 S.Ct. 452, 73 L.Ed. 867 (1929); Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946); Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432 (1946); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952); United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966); Hearst v. Black, 66 App.D.C. 313, 87 F.2d 68 (1936); Sevilla v. Elizalde, 72 App.D.C. 108, 112 F.2d 29 (1940); Pauling v. Eastland, 109 U.S.App.D.C. 342, 288 F.2d 126, cert. denied, 364 U.S. 900, 81 S.Ct. 233, 5 L.Ed.2d 194 (1960); Reif v. Barrett, 355 Ill. 104, 188 N.E. 889 (1933); Peabody v.

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