Powell v. McCormack/Dissent Stewart

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.

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. 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, and though any griev ance 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, 89 S.Ct. 361, 364.

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 U.S. 368, 376, 83 S.Ct. 801, 806, 9 L.Ed.2d 821. 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 long standing,' 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, 73 S.Ct. 894, 897. Finally, and 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. Voln tary 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, 73 S.Ct., at 897. 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. That punishment, it is said, 'arises out of the 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, 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 by further unconstitutional conduct of the defendants. Under this hypothesis, it is said that the 'Court can not determine that the conduct of the House of 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.

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. 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, 46 S.Ct. 600, 70 L.Ed. 1071, was a case nearly identical to 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 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, arguing that th  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.

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 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 e      gislative 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, 46      S.Ct., at 601.

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. 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 elected by each Congress -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 upon requisitions presented by the Sergeant at Arms, who is entrusted with keeping the books and accounts 'for the compensation and mileage of Members.'  A Congressman who has presented his credentials and taken the oath of office  is entitled to be paid monthly on the basis of certificates of the Clerk  and Speaker of the House. 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 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.

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. While that court could not have ordered Powell seated or entered a declaratory judgment on the constitutionality of his exclusion, it 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. 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, and it would avoid the necessity of deciding 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, 56 S.Ct. 466, 482-483, 80 L.Ed. 688 (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 Associates, Inc. v. Rickover, 369 U.S. 111, 112, 82 S.Ct. 580, 582, 7 L.Ed.2d 604. '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, 68 S.Ct. 641, 644, 192 L.Ed. 784.

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 e wholly advisory. But I see no good reason for any court even to pass on the question of the availability 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 back-pay 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.