Renard G. Davis v. Richard H. Ichord, Quentin Young v. Richard H. Ichord

This is a consolidated appeal from an order of the District Court dismissing an action by appellants suing in behalf of themselves and all others similarly situated, in which they challenge the constitutionality of Rule XI of the House of Representatives. This Rule is the mandate or authorizing resolution of the present House Committee on Internal Security, as it was before amendment the mandate of the former House Committee on Un-American Activities. Appellants seek both declaratory and in-junctive relief. Defendants in the District Court were members of the Committee on Un-American Activities. Ap-pellees, usually referred to in this opinion as the Committee, are members of the House Committee on Internal Security.1

I.

Appellants have been engaged actively in various political and civil rights causes. They were subpoenaed to appear before the House Committee on Un-American Activities during the week of October 1, 1968 to testify about disturbances in Chicago during the Democratic National Convention held in August of that year. They filed their original complaint on October 1, 1968.2 They sought the convening of a three-judge court and a judgment declaring that Rule XI3 and the resolution authorizing the threatened investigation4 were overly broad and vague on their face and that the purpose of the forthcoming investigation would be to intimidate appellants from exercising their freedom of expression and association protected by the First Amendment.5 Pending a ruling on their request for a permanent injunction against future operations and enforcement of the mandate and resolution, including the sealing of Committee records pertaining to them, appellants asked for an interlocutory injunction restraining the enforcement of the subpoenas through criminal proceedings.

After oral arguments the District Court on October 11, 1968 dismissed the application for a three-judge court,6 and on October 29, 1968 granted a motion to dismiss the consolidated actions.7 The rulings were consolidated on appeal to this court. At the request of appellants, however, the cases were remanded to the District Court for further proceedings “in light of the changed circumstances subsequent to the filing of the notices of appeal.” Five of the appellants 8 had appeared and testified before the Committee. The other two 9 were not called to testify. Further, the 90th Congress expired on January 3, 1969 without having cited any appellant for contempt. Its power to do so terminated. Moreover, House Resolution 89 of the 91st Congress by an amendment to Rule XI abolished the Committee on Un-American Activities and created in its place the present Committee on Internal Security,10 to which the records of the former Committee were transferred.

On the remand appellants were permitted to file a Supplemental Complaint in which they challenged the mandate of the new Committee as contained in amended Rule XI on the same constitutional grounds as they had challenged its predecessor. The Supplemental Complaint also charged that the Committee on Internal Security maintained files of the personal and political activities of thousands of individuals and hundreds of organizations which constitute a “political blacklist.” The Complaint alleges that the dossiers are made available, as allegedly they have been in the past, to Federal, State, and Local Governments as well as private groups, to discriminate against citizens in employment and otherwise to harass them and deter them in the exercise of their constitutional rights, and that the names and derogatory information and false charges respecting appellants are in the dossiers. It is then alleged that “accordingly” appellants are immediately and irreparably injured by the use and threat of use of this blacklist against them, in violation of their First Amendment and other constitutional rights. In addition to the relief requested in their original complaint, appellants sought a declaratory-judgment that Rule XI as amended is unconstitutional, and permanent and preliminary injunctions preventing the use of the alleged political blacklists. The District Court, on July 3, 1969, again granted appellees’ motion to dismiss.11 This appeal followed.12

We affirm because for reasons to bá 'explained the complaints, although they describe a controversy of a sort between themselves and appellees, we think do not allege the sort of “case” or “controversy” referred to in Article III of the Constitution, the source of jurisdiction ^afthe federal courts. Jurisdiction over the general-subject of the litigation does reside in the courts, but the complaint must show that there exists a controversy between the parties with such immediacy and presently adversary character as to require its adjudication. Assuming that plaintiffs were entitled to add members of the Committee staff as defendants, it is in the respect last referred to, as we shall explain, in which we find the litigation does not now present the elements essential to jurisdiction as an Article III controversy between the parties to the litigation.

II.

The original complaint, in seeking injunctive and declaratory relief with respect to (1) the mandate of the House Committee on Un-American Activities, (2) the resolution authorizing the investigation involving appellants, and (3) the enforcement of the subpoenas, rested upon service upon appellants of subpoenas to appear before the Committee and upon appellants’ apprehension of enforcement of the subpoenas in criminal proceedings. It has eventuated, however, as outlined above, that any involvement of appellants with the previous Committee due to the subpoenas has ceased. The original complaint accordingly does not set forth a live dispute requiring adjudication as to the constitutionality of that Committee’s mandate or investigating resolution. The investigation has ended, the Committee has been abolished, and no action associated with the subpoenas or hearing is threatened respecting appellants.13 The case as framed in the original complaint accordingly is moot.14 A federal “Court does not sit to decide arguments after events have put them to rest.” Doremus v. Board of Education, 342 U.S. 429, 433, 72 S.Ct. 394, 396, 96 L.Ed. 475 (1952). United States v. Alaska Steamship Co., 253 U.S. 113, 40 S.Ct. 448, 64 L.Ed. 808 (1920); St. Pierre v. United States, 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199 (1943); District of Columbia v. Barry, 128 U.S.App.D.C. 295, 387 F.2d 860 (1967). There is no such likelihood that appellants will be called before the present Committee as to permit application of the continuing controversy doctrine with respect to the original complaint. Compare Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911); Carroll v. President and Com’rs of Princess Anne, 393 U.S. 175, 178-179, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968); Jeannette Rankin Brigade v. Chief of the Capitol Police, 137 U.S.App.D.C. 155, 157-158, 421 F.2d 1090, 1092-1093 (1969). The mooted character of the case resting upon that complaint drains it of content of a case or controversy within the meaning of Article III of the Constitution.

III.

The Supplemental Complaint differs from the original. Although it resembles the latter in challenging the mandate of the newly created House Committee on Internal Security, it adds a new element to the situation. As we have set forth above it alleges that the Committee ¿as in its possession numerous dossiers compiled by the former Committee and that the personal information in these dossiers is made available “as a political blacklist to discriminate against citizens, deny them employment,” to deter them from freely expressing their political opinions and otherwise from exercising their constitutional rights, and “accordingly” injuring appellants in the exercise of their constitutional rights by the use and threat of use of the. information respecting them-.-• —

The Supplemental Complaint, however, not only fails to designate a single instance of use of information respecting appellants or anyone else, or threatened with respect to anyone, but more importantly seeks to bring appellees into conflict with appellants only by alleging the use or threat of use of dossiers in a manner harmful not to appellants but to others, in the exercise of their constitutional rights; appellants allege only inferentially that because of the use re-' specting others the information accordingly will be used respecting them.15 And we add that with respect to the other citizens and organizations the allegations are in unspecific and conclusional terms. See DuBois Clubs of America v. Clark, 389 U.S. 309, 312-313, 88 S.Ct. 450, 19 L.Ed.2d 546 (1967).

The question here is not one of mootness but whether for a different reason an Article III case or controversy appears. Stated most favorably to appellants this we think comes down to whether it can fairly be held that the allegations respecting the files describe a factual situation which has such a chilling effect upon the exercise by appellants of their constitutional rights, especially those protected by the First Amendment, as to constitute an Article III case or controversy between appellants and appellees.

Appellees contend that in any event the court may not intervene because of the doctrine of separation of powers. They cite Hutcheson v. United States, 369 U.S. 599, 622, 82 S.Ct. 1005, 8 L.Ed.2d 137 (1962), and Barenblatt v. United States, 360 U.S. 109, 132-133, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959), to the effect that one branch of the Government may not lightly interfere with the exercise of its legitimate power by a coordinate branch, such as the exercise by Congress of its power of investigation in aid of legislation. This judicial admonition, however, enunciated in cases which involved only part of the spectrum of the judiciary’s responsibility in relation to Congress, must be read with decisions of the Supreme Court where individual rights were alleged to be infringed by Congress in circumstances which required constitutional adjudication. Thus, for example, in Powell v. McCormack, 395 U.S. 486, 516, 89 S.Ct. 1944, 23 L.Ed.2d 491, et seq. (1969), it was held that judicial review of a decision on the part of the House of Representatives to exclude one of its members was justiciable notwithstanding the contention based upon separation of powers. The Court stated that an individual’s claim of a constitutional right, and, we may add, an individual’s claim of infringement of such a right,

falls within the traditional role accorded courts to interpret the law, and does not involve a “lack of the respect due [a] coordinate [branch] of government,” nor does it involve an “initial policy determination of a kind clearly for nonjudicial discretion.” Baker v. Carr, 369 U.S. 186, at 217 [82 S.Ct. 691, at 710, 7 L.Ed.2d 663].

The Court continued,

Our system of government requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch. The alleged conflict that such an adjudication may cause cannot justify the courts’ avoiding their constitutional responsibility. See United States v. Brown, 381 U.S. 437, 462 [85 S.Ct. 1707, 1722, 14 L.Ed.2d 484] (1965); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 613-14 [72 S.Ct. 863, 898, 96 L.Ed. 1153] (1952) (Frankfurter, J., concurring); Myers v. United States, 272 U.S. 52, 293 [47 S.Ct. 21, 71 L.Ed. 160] (1926) (Brandeis, J., dissenting).

395 U.S. 548-549, 89 S.Ct. 1978. See also United States v. Robel, 389 U.S. 258, 264, 267-268, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967); Stamler v. Willis, supra, 415 F.2d at 1369-1370.

We accordingly do not withhold decision on the merits because of the argument based on separation of powers. In all cases, however, the factual content must add up to an Article III case or controversy. The criteria for this can be no less when the courts are asked to pass upon the constitutionality of the charter and conduct of a committee of Congress than when the question arises in other litigation. It is here we find the present complaints factually and legally inadequate.-' All that remains unmooted is the existence of the present Committee with substantial changes in membership, the files, and the claim of misuse and threatened misuse of information in the files, with, however, only an inferential form of allegation respecting the use of information about appellants based on conclusional allegations respecting others. Indeed the Supplemental Complaint itself alleges no specific instance of non-legislative use with respect to any particular person. The allegations do not charge conduct by present appellees causing or threatening injury to appellants with a factual content which brings the parties into controversy of such present aliveness and immediacy as to require the courts to render a constitutional decision.16

The principle involved has been stated recently in Golden v. Zwickler, 394 U.S. 103, 108, 110, 89 S.Ct. 956, 959-960, 22 L.Ed.2d 113 (1969), as follows:

“[T]he federal courts established pursuant to Article III of the Constitution do not render advisory opinions. For adjudication of constitutional issues, ‘concrete legal issues, presented in actual cases, not abstractions,’ are requisite. This is as true of declaratory judgments as any other field.” United Public Workers of America [C.I.O.] v. Mitchell, 330 U.S. 75, 89 [67 S.Ct. 556, 564, 91 L.Ed. 754], (1947). “The difference between an abstract question and a ‘controversy’ contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 [61 S.Ct. 510, 512, 85 L.Ed. 826] (1941).

******

The constitutional question, First Amendment or otherwise, must be presented in the context of a specific live grievance. In United Public Workers of America [C.I.O.] v. Mitchell, supra, at 89-90 [67 S.Ct. at 564,] we said:

“The power of courts, and ultimately of this Court, to pass upon the constitutionality of acts of Congress arises only when the interests of litigants require the use of this judicial authority for their protection against actual interference. A hypothetical threat is not enough.”

Implicit in our conclusion is the view that such chilling effect on the exercise of First Amendment rights as inheres in the existence, hearings, files of the Committee and the possible use of the files, is not of a degree which places in the hands of appellants a right to re-' quire the court to adjudicate the constitutional challenge they advance against appellees. Among the considerations pertinent to determining the existence of a chilling effect upon the exercise of First Amendment rights which give rise to a case or controversy are the source of the chill, the extent to which itfocuses upon the conduct of those who allege it, and the likelihood that it will affect that conduct. The free exercise of First Amendment rights is perhaps more readily inhibited by a law justifiably suspect as vague or overbroad, because of the uncertainty of its application,17 than from the apprehension that a law, valid on its face, will be unconstitutionally administered. In the former case, “the danger of tolerating, in the area of First Amendment freedoms,” a “statute susceptible of sweeping and improper application,” NAACP v. Button, supra, 371 U.S. at 433, 83 S.Ct. at 338, is that one may feel obligated to guide his conduct by what is potentially proscribed. Baggett v. Bullitt, supra, 377 U.S. at 372, 84 S.Ct. 1316; Keyishian v. Board of Regents, 385 U.S. at 601, 87 S.Ct. 675; National Student Ass’n v. Hershey, 134 U.S.App.D.C. 56, 64, 412 F.2d 1103, 1111 (1969). In the latter case the chill, to be judicially cognizable, must be presented in a concrete factual setting specifying plausible threats of improper administration.18 And in both instances the court must be persuaded that there is a genuine possibility that an individual’s conduct will be affected before entering upon constitutional adjudication. Though it is not feasible to gauge a chilling effect by differences in the sensitivity of different individuals who might be affected, it would seem reasonable to assume that some resistance to chill resides in the average individual due to his recognition of his right of speech and association, protected by the First Amendment, as well as due to his human personality.

In Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), the source of the chilling effect which led the Court not to abstain from adjudication of the validity of a state statute was in the history of harassing criminal prosecutions of the plaintiffs under a statute suspect for the over-breadth of its regulatory scheme. No criminal proceeding or other harassment by the Committee now confronts appellants. In National Students Ass’n v. Hershey, 134 U.S.App.D.C. 56, 412 F.2d-1103 (1969), the chilling effect whic^t gave rise to a case or controversy was áS-directive which authorized local draft boards to deny military deferment to those students whom the boards considered to be engaging in illegal demonstrations. We have no order of any sort directed to appellants, or to any larger group of which they are a part. ¡

In Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969), where the Court was concerned with the related problems of standing —and see note 16, supra — the allegations held to support the standing of plaintiff to attack the constitutionality of the state statute more directly brought the administrators of the statute into an existing conflict with the plaintiff. As an example, the Court referred to the allegations that the defendants “procured false statements of criminal activities and used such statements to initiate baseless criminal proceedings against” plaintiff. 395 U.S. at 419, 89 S.Ct. at 1847.

If a chilling effect exists in the present case it must emanate (1) from the existence of the Committee and the history of its predecessor, and (2) the possible use of the information in the Committee’s files. As to the former appellants urge that the mandate, Rule XI as amended, is overly broad and vague in authorizing investigations into “propaganda” which would include “clearly protected activity.” Aside from the merits of such a broadbased attack on Rule XI, see Barenblatt v. United States, supra, appellants have failed to bring the fear of investigation by the present Committee home to themselves.-' That the new Committee will seek to investigate their activities is wholly speculative. Í Nor does the possible use of the information in the Committee’s files give rise to an Article III ease or controversy between these parties. It is not claimed that any non-legislative use of the Committee’s files is authorized by the Committee’s mandate, no matter how broadly construed by appellants; and appellants do not allege except as we have indicated that the files have been or will be used to their personal detriment.19 We think in a frontal attack of this sort upon the Co. lmittee some existing or threatened adverse action by the present Committee more directly associated with the suitor must be alleged.

For the reasons we have given we affirm the dismissal of the complaints, without reaching the question of constitutionality of the mandate of either the former Committee on Un-American Activities or of the present Committee on Internal Security, or the question of the lawfulness of the existence or alleged use of the files in the possession of the present Committee.20 The primary responsibility for the policing of the files rests with the House of Representatives and its Committee. Situations may arise with respect to the Committee’s conduct which call for judicial intervention at the suit of individuals — see Iehord v. Stamler, supra, and its earlier history outlined in footnote 13, supra— but the complaints, in respects not mooted, allege differences of appellants with' appellees regarding the existence, hearings and files of the Committee which do not, for the reasons we have stated, give rise to a dispute of the “immediacy” and “reality” required for constitutional adjudication. Golden v. Zwickler, supra.

Affirmed.