Schiaffo v. Helstoski

• Decision Date: 04 January 1974
• Docket Number: No. 72-2167,72-2168.,72-2167
• Parties: Alfred D. SCHIAFFO, Appellant in No. 72-2168, v. Henry HELSTOSKI, Appellant in No. 72-2167.
• Court: U.S. Court of Appeals — Third Circuit

492 F.2d 413 (1974)

Alfred D. SCHIAFFO, Appellant in No. 72-2168, v. Henry HELSTOSKI, Appellant in No. 72-2167.

Nos. 72-2167, 72-2168.

United States Court of Appeals, Third Circuit.

Argued June 19, 1973.

Decided January 4, 1974.

Rehearing Denied February 21, 1974.

COPYRIGHT MATERIAL OMITTED

Alfred A. Porro, Jr., Porro, Conaghan & Murray, Lyndhurst, N. J., for Henry Helstoski.

Robert B. Budelman, Jr., Westwood, N. J., for Alfred D. Schiaffo.

George B. Haddock, H. Graham Morison, Courtney Whitney, Jr., Morison, Murphy, Abrams & Haddock, Washington, D. C., for Comm. on House Adm. U. S. House of Representatives, amicus curiae.

Before VAN DUSEN, ALDISERT and ADAMS, Circuit Judges.

OPINION OF THE COURT

ADAMS, Circuit Judge.

In this case we are called upon to consider questions of justiciability arising under statutes relating to the privilege of congressmen to send mail under the frank,¹ and then to examine the scope and meaning of those enactments. 39 U.S.C. §§ 3210-3212.

Appellant, Henry Helstoski, a member of the United States House of Representatives, representing the Ninth Congressional District in New Jersey, challenges the district court's judgment to the extent that it enjoins him from mailing certain materials under his frank. He regards all such mailings as part of the conscientious performance of his legislative duties. Appellee, Alfred D. Schiaffo, Helstoski's opponent in the general election held in November, 1972, cross-appeals from that portion of the district court's judgment that permits the mailing under the frank of certain other materials. See Schiaffo v. Helstoski, 350 F.Supp. 1076 (D.N.J.1972).²

I.

Specifically, the district court divided the mailings and proposed mailings of Helstoski into four groups.

Group I consisted of documents printed pursuant to congressional or executive order. Applying 39 U.S.C. § 3211, the district court decided that those documents printed by congressional order could be sent under the frank to persons not then in the Ninth Congressional District but who were to be included in the redistricted Ninth Congressional District for the November, 1972 election, as well as to all those in the Ninth Congressional District before the redistricting. Furthermore, the court found that Schiaffo had no standing to challenge under 44 U.S.C. § 732 Helstoski's receipt of government documents in excess of his allotment. Those printed pursuant to executive order had already been sent at the time of the suit, thereby precluding any relief, for the court refused to grant money damages to Schiaffo. The court did not decide whether such mailings were otherwise permissible. It did permit Helstoski to send brief covering letters with the documents printed pursuant to congressional order, identifying the Congressman as the sender and explaining the reasons for the distribution.

Schiaffo challenges the court's ruling insofar as it permitted the mailings of documents printed pursuant to congressional order to the new constituents of the Ninth Congressional District and the mailings of documents Helstoski received in excess of his allotment.

Group II included reprints of documents received in limited quantities from governmental departments. These reprints were prepared at Helstoski's expense. Other documents included in this group were Helstoski's "Washington Report," a newsletter prepared periodically to inform recipients of Helstoski's activities, two questionnaires, and a brochure on the drug problem prepared by private individuals. These documents, too, were printed at Helstoski's expense. Helstoski either sent or intended to send all of the documents in Group II to persons in the redistricted as well as in the then existing Ninth Congressional District. Applying 39 U.S.C. § 3210(2), the court enjoined further mailings of documents in this group. Helstoski and the Committee on House Administration of the House of Representatives, as amicus curiae, challenge this ruling.

Group III contained two types of documents: first, the results of one of Helstoski's questionnaires inserted in the Congressional Record and second, parchment copies of the Declaration of Independence together with a statement inserted in the Congressional Record and intended to be sent to Republican and Democratic County Committee people, officials, schools and libraries. Helstoski planned to send all of the Group III documents to persons in areas to become part of the Ninth Congressional District as well as in areas then included. Applying 39 U.S.C. §§ 3212, the court found the distribution of the first portion of materials in Group III permissible, but enjoined the second. Schiaffo apparently challenges the court's ruling as to the first distribution insofar as it applies to mailings to persons who, at the time of the November, 1972 election, would be within the Ninth Congressional District for the first time.

Group IV contained copies of a revenue sharing report sent to public officials in the then existing and the new Ninth Congressional District, and a gun-control survey sent to police chiefs in both areas. All of these materials were printed at Helstoski's expense. Applying 39 U.S.C. § 3210(1), the court found these mailings under the frank impermissible.

The district court refused to grant money damages to Schiaffo for injury allegedly resulting from the mailings, completed prior to suit,³ that transgressed the statutory restriction. Schiaffo does not, on this appeal, challenge this ruling. As to the mailings permitted under the statutes, the district court found no violation of Schiaffo's rights. This latter ruling Schiaffo does challenge.

Suits such as this one, calling in question the uses of the franking privilege by congressmen, have arisen with some frequency in the past few years.⁴ They present difficult questions of justiciability, and it is incumbent upon us to deal with such questions before addressing the correctness of the statutory construction placed on 39 U.S.C. §§ 3210-3212 by the district court.

If, in the context of this case, it should appear that any doctrine either of constitutional or of judicial origin requires our forebearance, we may be obligated to dismiss this appeal or to remand for dismissal of the case or of portions thereof.

II.

A. Mootness — The fact that the election of November, 1972 is now history — Helstoski was reelected — prompts us to consider whether "events subsequent to the judgment of the trial court rendered on October 10, 1972 have so affected the relations between the parties that the two conditions for justiciability relevant on appeal — adverse interest and effective remedy — have arguably been compromised."⁵ We must examine the stake that each of the parties now has in the outcome of this proceeding to determine whether it is proper to regard this appeal as moot.⁶

Helstoski, like most of his colleagues in the Congress,⁷ has regularly made mailings similar to those the court below enjoined. Although he has been reelected on three previous occasions, mailings of the type now enjoined continued with no apparent interruption until the district court's order. There is nothing in the record indicating, and no reason to assume, that Helstoski's interest in continuing the practice of informing his constituents through the unsolicited mailing of various materials under his frank has substantially diminished since his fourth reelection in November, 1972. The district court's order contains no expiration date, and Helstoski remains subject to its interdictions. It is apparent, therefore, that Helstoski has a considerable stake in this appeal.

One might suspect that the strength of Schiaffo's interest in preserving those elements of the district court's judgment favorable to him has lessened somewhat since his defeat in the November, 1972 election. But anybody who personally intends to oppose the candidacy of an incumbent congressman or who supports a person mounting such a challenge has a vital interest in securing the cessation of that incumbent's activities — financed at least in part by the public fisc — that arguably promote his electoral prospects. Certainly Schiaffo is one who may continue to oppose, personally or otherwise, the incumbency of Helstoski. Moreover, both parties have diligently presented their respective arguments to this Court.⁸ Consequently, we conclude that this appeal has not been mooted by the November, 1972 election.

B. Speech or Debate Clause — Helstoski argues that the Speech or Debate Clause, Art. I, § 6 of the Constitution,⁹ precludes judicial inquiry into potential abuse of the franking privilege. We do not find this contention persuasive. Although the limits of the immunity afforded congressmen by the Speech or Debate Clause are not clearly defined by judicial precedent,¹⁰ in United States v. Brewster¹¹ the Supreme Court appears to have placed important restrictions on the ambit of that provision. The Court in Brewster found that the Speech or Debate Clause did not preclude a prosecution of a senator for bribery so long as there was no inquiry into legislative acts or motivation.¹² "In sum," the Court held, "the Speech or Debate Clause prohibits inquiry only into those things generally said or done in the House or the Senate in the performance of official duties and into the motivation for those acts."¹³Brewster has placed many activities "related" to the performance of a congressman's duties outside the protection of the Speech or Debate Clause.¹⁴ Significantly, Chief Justice Burger, writing for the Court in Brewster, included among the "related," but unprotected Congressional activities the preparation of a newsletter.¹⁵ Although we are dealing with, for example, the mailing under the frank, not the preparation, of a newsletter, we believe that the thrust of Brewster requires us to regard Helstoski's use of the frank to mail the materials in this case as outside the protection of the Speech or Debate Clause....