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STAMLER v. WILLIS

June 26, 1968

JEREMIAH STAMLER, M.D. AND YOLANDA F. HALL, PLAINTIFFS, AND MILTON M. COHEN, INTERVENING PLAINTIFF,
v.
HON. EDWIN E. WILLIS, HON. JOHN M. ASHBROOK, HON. DEL CLAWSON, HON. JOE R. POOL, HON. CHARLES L. WELTNER, HON. WILLIAM M. TUCK, HON. RICHARD H. ICHORD, HON. GEORGE F. SENNER, JR., AND HON. JOHN H. BUCHANAN, JR., INDIVIDUALLY AND AS CHAIRMAN AND MEMBERS OF THE COMMITTEE ON UN-AMERICAN ACTIVITIES OF THE UNITED STATES HOUSE OF REPRESENTATIVES, DEFENDANTS.



Before Cummings, Circuit Judge, and Hoffman and Napoli, District Judges.

The opinion of the court was delivered by: Hoffman, District Judge.

MEMORANDUM OF DECISION

The plaintiffs, Jeremiah Stamler, M.D., and Yolanda F. Hall, and the intervening plaintiff, Milton M. Cohen, (hereinafter referred to as "plaintiffs") brought two actions against the chairman and members of the Committee on Un-American Activities of the United States House of Representatives. The Committee had scheduled hearings at Chicago, Illinois, for May 25 through May 27, 1965, and the plaintiffs were subpoenaed to appear and give testimony.

The first action brought by the plaintiffs challenged the constitutionality of the Legislative Reorganization Act of 1946, 60 Stat. 812, 828 (1946) which embodies Rule XI of the Rules of the House of Representatives establishing the charter of the House Un-American Activities Committee. A three-judge District Court was requested under 28 U.S.C. § 2283, 2284 and the plaintiffs prayed for an injunction restraining the members of the committee from conducting any hearings and taking any action to enforce the subpoenas served upon the plaintiffs. The action was dismissed by the District Court for lack of substantial federal question under Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959) and the application for a three-judge Court was denied.

The Committee conducted the scheduled hearings and the plaintiffs attended but refused to testify. The plaintiffs then commenced a second action, again challenging the constitutionality of House Rule XI and requesting the convocation of a three-judge District Court. The plaintiffs prayed for a temporary and permanent injunction against the operation, enforcement or execution of House Rule XI and against the future prosecution of the plaintiffs for contempt of Congress under 2 U.S.C. § 192.

House Rule XI provides, in pertinent part:

    "The Committee on Un-American Activities, as a
  whole or by subcommittee, is authorized to make
  from time to time investigations of (1) the
  extent, character, and objects of un-American
  propaganda activities in the United States, (2)
  the diffusion within the United States of
  subversive and un-American propaganda that is
  instigated from foreign countries or of a
  domestic origin and attacks the principle of the
  form of government as guaranteed by our
  Constitution, and, (3) all other questions in
  relation thereto that would aid Congress in any
  necessary remedial legislation."

The complaint alleged that this Rule is illegal and void as applied to the plaintiffs, and as utilized by the defendants and their predecessors in the past, in that it violates the First, Fifth, Ninth and Tenth Amendments to the United States Constitution.

Without reaching the question of the substantiality of the constitutional issues, the District Court denied the application for a three-judge Court and dismissed the complaint for lack of justiciable controversy. The Court found that the plaintiffs lacked standing to raise the constitutional challenge to House Rule XI since they were not in the direct focus of the Rule. The Court concluded that the criminal prosecution feared by the plaintiffs was not possible until the full House of Representatives considered the facts and the Speaker of the House certified the facts to the United States Attorney and directed him to bring the matter of contempt before the grand jury. 2 U.S.C. § 194. The District Court also noted that criminal prosecution could be instituted only by the United States which was not a party to the action.

Appeals from the decisions of the District Court in both actions were taken to the Court of Appeals for the Seventh Circuit. The reviewing court reversed upon concluding that in deciding the question of justiciability in the second action the District Court had improperly considered the merits of the plaintiffs' claim and that both complaints presented a substantial constitutional question. Stamler v. Willis, 371 F.2d 413 (7th Cir. 1966). The Court stated:

    "The complaints alleged generally that the
  interpretation of section 18 of Rule XI as
  expressed by the continued conduct of the
  Subcommittee of the House Un-American Activities
  Committee attributes a meaning to the rule which
  renders it unconstitutional, and that this
  conduct consisted of the exposure of witnesses,
  including plaintiffs, to public scorn and obloquy
  and harassment and intimidation of these
  witnesses without any legislative purpose but
  rather to chill and deter them and others in the
  exercise of their first amendment rights.
    "These allegations raise a substantial
  constitutional question not foreclosed by the
  Supreme Court in Barenblatt v. United States,
  360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959)."
  371 F.2d at 414.

The Court also noted that the complaints alleged, at least formally, a basis for equitable relief and that the requirements of the three-judge statute had been met. The cases were remanded to the District Court with directions to grant the requests for a three-judge Court.

After remand, the three-judge District Court was appointed and the cases were consolidated for trial. During the summer of 1967 the plaintiffs moved for a temporary restraining order preventing the defendants from seeking to secure indictments against them for violations of 2 U.S.C. § 192. The motion was presented to the single District Judge who was advised that the previous fall the Speaker of the House of Representatives had certified facts constituting the alleged illegal conduct of the plaintiffs to the United States Attorney and that the Attorney General and the United States Attorney were going to present the alleged contempt charges to the grand jury. While this motion was under advisement, the plaintiffs moved for leave to file a First Supplement to the Complaints indicating the action taken by the House of Representatives and for leave to add the United States Attorney and the Attorney General as parties defendant. Leave to file the Supplement was granted but the motion to add additional parties was denied. Thereafter the single Judge denied the motion for a restraining order and the plaintiffs were indicted for contempt of Congress in violation of 2 U.S.C. § 192. The initiation of the criminal prosecutions was pleaded in a Second Supplement to the complaints and the plaintiffs prayed for an injunction against the prosecutions. Leave to file the Second Supplement and to add the Attorney General and the United States Attorney as parties defendant was allowed. The criminal actions are pending.

The Congressional defendants moved to dismiss the complaints as supplemented and that motion was denied. All the defendants then answered and filed a motion for summary judgment and several discovery motions which were taken under advisement. Next the Congressional defendants moved to stay discovery and to dismiss the actions for lack of jurisdiction on the ground that they are immune from suit under the Speech or Debate Clause, United States Constitution, Article 1, § 6, Clause 1. All nine Congressional defendants filed Claims of Privilege and Exemption from Suit. The cases are now before the Court for decision on the motion of all defendants for summary judgment, two discovery motions and the Congressional defendants' motion to stay discovery and dismiss the complaints.

The issue raised by the pending motion to dismiss the actions as to the Congressional defendants is the availability to them of the immunity granted legislators under the Speech or Debate Clause. That Clause provides: "[F]or any Speech or Debate in either House [the members of Congress] shall not be questioned in any other place." The defendants urge their claimed immunity as a jurisdictional impediment to the present actions which seek injunctive relief against them based on alleged legitimate legislative activities. Reliance is placed on the opinion of Judge Burger in Powell v. McCormack, 395 F.2d 577 (D.C. Cir. Feb. 28, 1968). In that case the plaintiff, Member-Elect Adam Clayton Powell, Jr., brought suit against several members of the 90th Congress to restrain the enforcement, operation or execution of House Resolution No. 278 whereby Member-Elect Powell was excluded from membership in the 90th Congress, and to restrain the ...


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