STEWART, J., Dissenting Opinion
SUPREME COURT OF THE UNITED STATES
395 U.S. 486
Powell v. McCormack
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 138 Argued:
April 21, 1969 --- Decided: June 16, 1969
MR. JUSTICE STEWART, dissenting.
I believe that events which have taken place since
certiorari was granted in this case on November 18, 1968, have
rendered it moot, and that the Court should therefore refrain from
deciding the novel, difficult, and delicate constitutional questions
which the case presented at its inception. [p560]
I
The essential purpose of this lawsuit by
Congressman Powell and members of his constituency was to regain the
seat from which he was barred by the 90th Congress. That purpose,
however, became impossible of attainment on January 3, 1969, when the
90th Congress passed into history and the 91st Congress came into
being. On that date, the petitioners' prayer for a judicial decree
restraining enforcement of House Resolution No. 278 and commanding the
respondents to admit Congressman Powell to membership in the 90th
Congress became incontestably moot.
The petitioners assert that actions of the House
of Representatives of the 91st Congress have prolonged the controversy
raised by Powell's exclusion and preserved the need for a judicial
declaration in this case. I believe, to the contrary, that the conduct
of the present House of Representatives confirms the mootness of the
petitioners' suit against the 90th Congress. Had Powell been excluded
from the 91st Congress, he might argue that there was a "continuing
controversy" concerning the exclusion attacked in this case.
[n1] And such an argument might be sound even though the
present House of Representatives is a distinct legislative body,
rather than a continuation of its predecessor,
[n2] and though any grievance [p561]
caused by conduct of the 91st Congress is not redressable in this
action. But on January 3, 1969, the House of Representatives of the
91st Congress admitted Congressman Powell to membership, and he now
sits as the Representative of the 18th Congressional District of New
York. With the 90th Congress terminated and Powell now a member of the
91st, it cannot seriously be contended that there remains a judicial
controversy between these parties over the power of the House of
Representatives to exclude Powell and the power of a court to order
him reseated. Understandably, neither the Court nor the petitioners
advance the wholly untenable proposition that the continuation of this
case can be founded on the infinitely remote possibility that
Congressman Powell, or any other Representative, may someday be
excluded for the same reasons or in the same manner. And because no
foreseeable possibility of such future conduct exists, the respondents
have met their heavy burden of showing that "subsequent events made it
absolutely clear that the allegedly wrongful behavior could not
reasonably be expected to recur." United States v. Concentrated
Phosphate Export Assn.,
393 U.S. 199, 203.
[n3]
The petitioners further argue that this case
cannot be deemed moot because of the principle that "the voluntary
abandonment of a practice does not relieve a court of adjudicating its
legality. . . ." Gray v. Sanders, 372
[p562] U.S. 368, 376.
[n4] I think it manifest, however, that this principle
and the cases enunciating it have no application to the present case.
In the first place, this case does not involve "the voluntary
abandonment of a practice." Rather, it became moot because of an event
over which the respondents had no control -- the expiration of the
90th Congress. Moreover, unlike the cases relied on by the
petitioners, there has here been no ongoing course of conduct of
indefinite duration against which a permanent injunction is necessary.
Thus, it cannot be said of the respondents' actions in this case, as
it was of the conduct sought to be enjoined in Gray, for
example, that "the practice is deeply rooted and longstanding,"
ibid., or that, without judicial relief, the respondents would be
"free to return to [their] old ways." United States v. W. T. Grant
Co.,
345 U.S. 629, 632.
[n5] Finally, and [p563]
most important, the "voluntary abandonment" rule does not dispense
with the requirement of a continuing controversy, nor could it under
the definition of the judicial power in Article III of the
Constitution. Voluntary cessation of unlawful conduct does make a case
moot "if the defendant can demonstrate that ‘there is no reasonable
expectation that the wrong will be repeated.'" Id. at 633.
[n6] Since that is the situation here, the case would be
moot even if it could be said that it became so by the House's
"voluntary abandonment" of its "practice" of excluding Congressman
Powell.
The petitioners' proposition that conduct of the
91st Congress has perpetuated the controversy is based on the fact
that House Resolution No. 2 -- the same resolution by which the House
voted to seat Powell -- fined him $25,000 and provided that his
seniority was to commence as of the date he became a member of the
91st Congress.
[n7] That punishment, it is said, "arises out of the
[p564] prior actions of the House which
originally impelled this action." It is indisputable, however, that
punishment of a House member involves constitutional issues entirely
distinct from those raised by exclusion,
[n8] and that a punishment in one Congress is in no
legal sense a "continuation" of an exclusion from the previous
Congress. A judicial determination that the exclusion was improper
would have no bearing on the constitutionality of the punishment, nor
any conceivable practical impact on Powell's status in the 91st
Congress. It is thus clear that the only connection between the
exclusion by the 90th Congress and the punishment by the 91st is that
they were evidently based on the same asserted derelictions of
Congressman Powell. But this action was not brought to exonerate
Powell or to expunge the legislative findings of his wrongdoing; its
only purpose was to restrain the action taken in consequence of those
findings -- Powell's exclusion.
Equally without substance is the petitioners'
contention that this case is saved from mootness by application of the
asserted "principle" that a case challenging allegedly
unconstitutional conduct cannot be rendered moot
[p565] by further unconstitutional conduct of the defendants.
Under this hypothesis, it is said that the
Court cannot determine that the conduct of the
House on January 3, 1969, has mooted this controversy without
inferentially, at least, holding that the action of the House of that
day was legal and constitutionally permissible.
If there is in our jurisprudence any doctrine
remotely resembling the petitioners' theory -- which they offer
without reference to any authority -- it has no conceivable relevance
to this case. For the events of January 3, 1969, that made this case
moot were the termination of the 90th Congress and Powell's seating in
the 91st, not the punishment which the petitioners allege to have been
unconstitutional. That punishment is wholly irrelevant to the question
of mootness, and is in no wise before the Court in this case.
II
The passage of time and intervening events have,
therefore, made it impossible to afford the petitioners the principal
relief they sought in this case. If any aspect of the case remains
alive, it is only Congressman Powell's individual claim for the salary
of which he was deprived by his absence from the 90th Congress.
[n9] But even if that claim can be said to prevent this
controversy from being moot, which I doubt, there is no need to reach
the fundamental constitutional issues that the Court today undertakes
to decide.
This Court has not in the past found that an
incidental claim for back pay preserves the controversy between a
legislator and the legislative body which evicted him, once the term
of his eviction has expired. Alejandrino v. Quezon,
271 U.S. 528, was a case nearly identical to
[p566] that before the Court today. The
petitioner was a member of the Senate of the Philippines who had been
suspended for one year for assaulting a colleague. He brought an
action in the Supreme Court of the Philippines against the elected
members of the Senate
[n10] and its officers and employees (the President,
Secretary, Sergeant at Arms, and Paymaster), seeking a writ of
mandamus and an injunction restoring him to his seat and to all the
privileges and emoluments of office. The Supreme Court of the
Philippines dismissed the action for want of jurisdiction, and
Alejandrino brought the case here,
[n11] arguing that the suspension was not authorized by
the Philippine Autonomy Act, a statute which incorporated most of the
provisions of Article I of the United States Constitution.
[n12] [p567]
Because the period of the suspension had expired
while the case was pending on certiorari, a unanimous Court, in an
opinion by Chief Justice Taft, vacated the judgment and remanded the
case with directions to dismiss it as moot. To Alejandrino's claim
that his right to back pay kept the case alive, the Court gave the
following answer, which, because of its particular pertinency to this
case, I quote at length:
It may be suggested, as an objection to our
vacating the action of the court below, and directing the dismissal of
the petition as having become a moot case, that, while the lapse of
time has made unnecessary and futile a writ of mandamus to restore
Senator Alejandrino to the Island Senate, there still remains a right
on his part to the recovery of his emoluments, which were withheld
during his suspension, and that we ought to retain the case for the
purpose of determining whether he may not have a mandamus for this
purpose. . . . It is difficult for the Court to deal with this feature
of the case, which is really only a mere incident to the main question
made in the petition and considered in the able and extended brief of
counsel for the petitioner, and the only brief before us. That brief
is not in any part of it directed to the subject of emoluments, nor
does it refer us to any statute or to the rules of the Senate by which
the method of paying Senators' salaries is provided, or in a definite
way describe the duties of the officer or officers or committee
charged with the ministerial function of paying them.
* * * *
. . . the remedy of the Senator would seem to be
by mandamus to compel such official in the discharge of his
ministerial duty to pay him the salary due, and the presence of the
Senate as a party would be [p568]
unnecessary. Should that official rely upon the resolution of the
Senate as a reason for refusing to comply with his duty to pay
Senators, the validity of such a defense and the validity of the
resolution might become a judicial question affecting the personal
right of the complaining Senator, properly to be disposed of in such
action, but not requiring the presence of the Senate as a party for
its adjudication. The right of the petitioner to his salary does not
therefore involve the very serious issue raised in this petition as to
the power of the Philippine Supreme Court to compel by mandamus one of
the two legislative bodies constituting the legislative branch of the
Government to rescind a resolution adopted by it in asserted lawful
discipline of one of its members for disorder and breach of privilege.
We think, now that the main question as to the validity of the
suspension has become moot, the incidental issue as to the remedy
which the suspended Senator may have in recovery of his emoluments, if
illegally withheld, should properly be tried in a separate proceeding
against an executive officer or officers as described. As we are not
able to derive from the petition sufficient information upon which
properly to afford such a remedy, we must treat the whole cause as
moot, and act accordingly. This action on our part of course is
without prejudice to a suit by Senator Alejandrino against the proper
executive officer or committee by way of mandamus or otherwise to
obtain payment of the salary which may have been unlawfully withheld
from him.
271 U.S. at 533, 534-535.
[n13] [p569]
Both of the factors on which the Court relied in
Alejandrino are present in this case. Indeed, the salary claim
is an even more incidental and subordinate aspect of this case than it
was of Alejandrino.
[n14] And the availability of effective relief for that
claim against any of the present respondents is far from certain. As
in Alejandrino, the briefs and memoranda submitted by the
parties in this case contain virtually no discussion of this question
-- the only question of remedy remaining in the case. It appears from
relevant provisions of law, however, that the Sergeant at Arms of the
House -- an official newly [p570] elected
by each Congress
[n15] -- is responsible for the retention and
disbursement to Congressmen of the funds appropriated for their
salaries. These funds are payable from the United States Treasury
[n16] upon requisitions presented by the Sergeant at
Arms, who is entrusted with keeping the books and accounts "for the
compensation and mileage of Members."
[n17] A Congressman who has presented his credentials
and taken the oath of office
[n18] is entitled to be paid monthly on the basis of
certificates of the Clerk
[n19] and Speaker of the House.
[n20] Powell's prayer for a mandamus and an injunction
against the Sergeant at Arms is presumably based on this statutory
scheme.
Several important questions remain unanswered,
however, on this record. Is the Sergeant at Arms the only necessary
defendant? If so, the case is surely moot as to the other respondents,
including the House members, and they should be dismissed as parties
on that ground, rather than after resolution of difficult
constitutional questions under the Speech or Debate Clause. But it is
far from clear that Powell has an appropriate or adequate remedy
against the remaining respondents. For if the Speaker does not issue
the requisite certificates and the House does not rescind Resolution
No. 278, can the House agents be enjoined to act in direct
contravention of the orders of their employers? Moreover, the office
of Sergeant at Arms of the 90th Congress has now expired, and the
present Sergeant at Arms serves the 91st Congress. If he were made a
party in that capacity, would he have the authority -- or could the
91st Congress [p571] confer the authority
-- to disburse money for a salary owed to a Representative in the
previous Congress, particularly one who never took the oath of office?
Presumably funds have not been appropriated to the 91st Congress or
requisitioned by its Sergeant at Arms for the payment of salaries to
members of prior Congresses. Nor is it ascertainable from this record
whether money appropriated for Powell's salary by the 90th Congress,
if any, remains at the disposal of the current House and its Sergeant
at Arms.
[n21]
There are, then, substantial questions as to
whether, on his salary claim, Powell could obtain relief against any
or all of these respondents. On the other hand, if he was entitled to
a salary as a member of the 90th Congress, he has a certain and
completely satisfactory remedy in an action for a money judgment
against the United States in the Court of Claims.
[n22] While that court could not have ordered Powell
seated or entered a declaratory judgment on the constitutionality of
his exclusion,
[n23] it [p572] is not
disputed that the Court of Claims could grant him a money judgment for
lost salary on the ground that his discharge from the House violated
the Constitution. I would remit Congressman Powell to that remedy, and
not simply because of the serious doubts about the availability of the
one he now pursues. Even if the mandatory relief sought by Powell is
appropriate and could be effective, the Court should insist that the
salary claim be litigated in a context that would clearly obviate the
need to decide some of the constitutional questions with which the
Court grapples today, and might avoid them altogether.
[n24] In an action in the Court of Claims for a money
judgment against the United States, there would be no question
concerning the impact of the Speech or Debate Clause on a suit against
members of the House of Representatives and their agents, and
questions of jurisdiction and justiciability would, if raised at all,
be in a vastly different and more conventional form.
In short, dismissal of Powell's action against the
legislative branch would not in the slightest prejudice his money
claim,
[n25] and it would avoid the necessity of deciding
[p573] constitutional issues which, in the
petitioners' words, "touch the bedrock of our political system [and]
strike at the very heart of representative government." If the
fundamental principles restraining courts from unnecessarily or
prematurely reaching out to decide grave and perhaps unsettling
constitutional questions retain any vitality, see Ashwander v. TVA,
297 U.S. 288, 346-348 (Brandeis, J., concurring), surely
there have been few cases more demanding of their application than
this one. And those principles are entitled to special respect in
suits, like this suit, for declaratory and injunctive relief, which it
is within a court's broad discretion to withhold.
We have cautioned against declaratory judgments
on issues of public moment, even falling short of constitutionality,
in speculative situations.
Public Affairs Press v. Rickover,
369 U.S. 111, 112.
Especially where governmental action is
involved, courts should not intervene unless the need for equitable
relief is clear, not remote or speculative.
Eccles v. Peoples Bank of Lakewood Village,
333 U.S. 426, 431.
If this lawsuit is to be prolonged, I would, at
the very least, not reach the merits without ascertaining that a
decision can lead to some effective relief. The Court's remand for
determination of that question implicitly recognizes that there may be
no remaining controversy between petitioner Powell and any of these
respondents redressable by a court, and that its opinion today may be
wholly advisory. But I see no good reason for any court even to pass
on the question of the availability [p574]
of relief against any of these respondents. Because the essential
purpose of the action against them is no longer attainable and Powell
has a fully adequate and far more appropriate remedy for his
incidental backpay claim, I would withhold the discretionary relief
prayed for and terminate this lawsuit now. Powell's claim for salary
may not be dead, but this case against all these respondents is truly
moot. Accordingly, I would vacate the judgment below and remand the
case with directions to dismiss the complaint.
Private parties may settle their controversies
at any time, and rights which a plaintiff may have had at the time of
the commencement of the action may terminate before judgment is
obtained or while the case is on appeal, and, in any such case, the
court, being informed of the facts, will proceed no further in the
action. Here, however, there has been no extinguishment of the rights
. . . of the public, the enforcement of which the Government has
endeavored to procure by a judgment of a court. . . . The defendants
cannot foreclose those rights, nor prevent the assertion thereof by
the Government as a substantial trustee for the public under the act
of Congress, by [voluntary cessation of the challenged conduct].
United States v. Trans-Missouri Freight Assn.,
166 U.S. at 309. The considerations of public enforcement of a
statutory or regulatory scheme which inhere in those cases are not
present in this litigation.
(2) That, as punishment, Adam Clayton Powell be,
and he hereby is, fined the sum of $25,000, said sum to be paid to the
Clerk to be disposed of by him according to law. The Sergeant at Arms
of the House is directed to deduct $1,150 per month from the salary
otherwise due the said Adam Clayton Powell, and pay the same to said
Clerk until said $25,000 fine is fully paid.
(3) That, as further punishment, the seniority
of the said Adam Clayton Powell in the House of Representatives
commence as of the date he takes the oath as a Member of the 91st
Congress.
The petitioners' argument that the case is kept
alive by Powell's loss of seniority, see ante at 496, is
founded on the mistaken assumption that the loss of seniority is
attributable to the exclusion from the 90th Congress, and that
seniority would automatically be restored if that exclusion were
declared unconstitutional. But the fact is that Powell was stripped of
seniority by the action of the 91st Congress, action which is not
involved in this case and which would not be affected by judicial
review of the exclusion from the 90th Congress. Moreover, even if the
conduct of the 91st Congress were challenged in this case, the Court
would clearly have no power whatsoever to pass upon the propriety of
such internal affairs of the House of Representatives.
Section 18 [of the Autonomy Act] provides that
the Senate and House respectively shall be the sole judges of the
elections, returns and qualifications of their elective members, and
each House may determine the rules of its proceedings, punish its
members for disorderly behavior, and, with the concurrence of
two-thirds, expel an elective member. The Senators and Representatives
shall receive an annual compensation for their services to be
ascertained by law and paid out of the Treasury of the Philippine
Islands. Senators and Representatives shall in all cases except
treason, felony and breach of the peace, be privileged from arrest
during their attendance at the session of their respective Houses and
in going to and returning from the same, and for any speech or debate
in either House they shall not be questioned in any other place.
271 U.S. at 532.
A question was raised in oral argument as to
whether this case might not be moot, since the session of the House
which excluded Bond was no longer in existence. The State has not
pressed this argument, and it could not do so, because the State has
stipulated that, if Bond succeeds on this appeal, he will receive back
salary for the term from which he was excluded.
I do not believe that this offhand dictum in
Bond is determinative of the issue of mootness in this case. In
the first place, as the Court in Bond noted, it was not there
contended by any party that the case was moot. Moreover, contrary to
the implication of the statement, the legislative term from which Bond
was excluded had not ended at the time of the Court's decision. (The
Court's decision was announced on December 5, 1966; Bond's term of
office expired on December 31, 1966.) In any event, he had not been
seated in a subsequent term, so the continuing controversy had not
been rendered clearly moot by any action of the Georgia House, as it
has here by the House of Representatives of the 91st Congress. No one
suggested in Bond that the money claim was the only issue left
in the case. Furthermore, the considerations which governed the
Court's decision in Alejandrino were simply not present in
Bond. Because of the State's stipulation, there was no doubt, as
there is here, see infra at 570-571, that the Court's decision
would lead to effective relief with respect to Bond's salary claim.
And finally, there was no suggestion that Bond had an alternative
remedy, as Powell has here, see infra at 571-572, by which he
could obtain full relief without requiring the Court to decide novel
and delicate constitutional issues.
The Court of Claims shall have jurisdiction to
render judgment upon any claim against the United States founded
either upon the Constitution, or any Act of Congress. . . .
28 U.S.C. § 1491. The district courts have concurrent
jurisdiction over such claims only in amounts less than $10,000.
28 U.S.C. § 1346.
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