Before Cummings, Circuit Judge, and Hoffman and Napoli,
The opinion of the court was delivered by: Hoffman, District Judge.
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
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
"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.