During the 89th Congress, a Special Subcommittee on Contracts of the Committee on House Administration conducted an investigation into the expenditures of the Committee on Education and Labor, of which petitioner was chairman. A New York Criminal Lawyer said the Special Subcommittee issued a report concluding that the defendant and certain staff employees had deceived the House authorities as to travel expenses. The report also indicated there was strong evidence that certain illegal salary payments (white collar crime) had been made to defendant’s wife at his direction. No formal action or criminal charges was taken during the 89th Congress. However, prior to the organization of the 90th Congress, the Democratic members-elect met in caucus and voted to remove the defendant as chairman of the Committee on Education and Labor.
When the 90th Congress met to organize in January 1967, the defendant was asked to step aside while the oath was administered to the other members-elect. Following the administration of the oath to the remaining members, the House discussed the procedure to be followed in determining whether the defendant was eligible to take his seat. After some debate, by a vote of 363 to 65 the House adopted House Resolution No. 1, which provided that the Speaker appoint a Select Committee to determine Powell’s eligibility. Although the resolution prohibited Powell from taking his seat until the House acted on the Select Committee’s report, it did provide that he should receive all the pay and allowances due a member during the period.
The Select Committee, composed of nine lawyer-members, issued an invitation to defendant to testify before the Committee. The invitation letter stated that the scope of the testimony and investigation would include defendant’s qualifications as to age, citizenship, and residency; his involvement in a civil suit, and matters of alleged official misconduct.
The report was presented to the House, and the House debated the Select Committee’s proposed resolution. At the conclusion of the debate, by a vote of 222 of 202 the House rejected a motion to bring the resolution to a vote. An amendment to the resolution was then offered; it called for the exclusion of defendant and a declaration that his seat was vacant. The Speaker ruled that a majority vote of the House would be sufficient to pass the resolution if it were so amended. A Nassau Criminal Lawyer said after further debate, the amendment was adopted by a vote of 248 to 176. Then the House adopted by a vote of 307 to 116 House Resolution No. 278 in its amended form, thereby excluding defendant and directing that the Speaker notify the Governor of New York that the seat was vacant.
Defendant then filed suit in Federal District Court, claiming that the House could exclude him only if it found he failed to meet the standing requirements of age, citizenship, and residence contained in Art. I, § 2, of the Constitution—requirements the House specifically found defendant met. The complaint also requested a declaratory judgment that defendant’s exclusion was unconstitutional. The District Court dismissed petitioners’ complaint ‘for want of jurisdiction of the subject matter.’ A panel of the Court of Appeals affirmed the dismissal, although in somewhat different grounds, each judge filing a separate opinion.
The issue in this case is whether the defendant was unlawfully excluded from seating in the 90th Congress.
The Court has determined that it was error to dismiss the complaint and that petitioner is entitled to a declaratory judgment that he was unlawfully excluded from the 90th Congress.
The resolution excluding petitioner was adopted by a vote in excess of two-thirds of the 434 Members of Congress—307 to 116. Article I, § 5, grants the House authority to expel a member ‘with the Concurrence of two thirds. Respondents assert that the House may expel a member for any reason whatsoever and that, since a two-thirds vote was obtained, the procedure by which Powell was denied his seat in the 90th Congress should be regarded as an expulsion, not an exclusion. Cautioning us not to exalt form over substance, respondents quote from the concurring opinion of Judge McGowan in the court below:
Appellant cause of action for a judicially compelled seating thus boils down, in my view, to the narrow issue of whether a member found by his colleagues to have engaged in official misconduct must, because of the accidents of timing, be formally admitted before he can be either investigated or expelled. The sponsor of the motion to exclude stated on the floor that he was proceeding on the theory that the power to expel included the power to exclude, provided a 2/3 vote was forthcoming. It was. Therefore, success for the appellant on the merits would mean that the District Court must admonish the House that it is form, not substance that should govern in great affairs, and accordingly command the House members to act out a charade.
Although respondents repeatedly urge this Court not to speculate as to the reasons for appellant’s exclusion, their attempt to equate exclusion with expulsion would require a similar speculation that the House would have voted to expel the appellant had it been faced with that question. A New York Sex Crimes Lawyer said the appellant had not been seated at the time House Resolution No. 278 was debated and passed. After a motion to bring the Select Committee’s proposed resolution to an immediate vote had been defeated, an amendment was offered which mandated appellant’s exclusion. The chairman of the Select Committee, then posed a parliamentary inquiry to determine whether a two-thirds vote was necessary to pass the resolution if so amended ‘in the sense that it might amount to an expulsion.’ The Speaker replied that ‘action by a majority vote would be in accordance with the rules.’ Had the amendment been regarded as an attempt to expel appellant, a two-thirds vote would have been constitutionally required. The Speaker ruled that the House was voting to exclude appellant, and we will not speculate what the result might have been if appellant had been seated and expulsion proceedings subsequently instituted.
Nor is the distinction between exclusion and expulsion merely one of form. The misconduct for which appellant was charged occurred prior to the convening of the 90th Congress. On several occasions the House has debated whether a member can be expelled for actions taken during a prior Congress and the House’s own manual of procedure applicable in the 90th Congress states that ‘both Houses have distrusted their power to punish in such cases.’
Members of the House having expressed a belief that such strictures apply to its own power to expel, we will not assume that two-thirds of its members would have expelled appellant for his prior conduct had the Speaker announced that House Resolution No. 278 was for expulsion rather than exclusion.
Finally, the proceedings which culminated in appellant’s exclusion cast considerable doubt upon respondents’ assumption that the two-thirds vote necessary to expel would have been mustered.
The Speaker ruled that House Resolution No. 278 contemplated an exclusion proceeding. The Court must reject respondents’ suggestion that we overrule the Speaker and hold that, although the House manifested intent to exclude appellant, its action should be tested by whatever standards may govern an expulsion.
To summarize, the Court has determined the following: (1) this case has not been mooted by appellant’s seating in the 91st Congress. (2) Although this action should be dismissed against respondent Congressmen, it may be sustained against their agents. (3) The 90th Congress’ denial of membership to appellant cannot be treated as an expulsion. (4) We have jurisdiction over the subject matter of this controversy. (5) The case is justiciable.
Further, analysis of the textual commitment under Art. I, § 5 (see Part VI, B (1)), has demonstrated that in judging the qualifications of its members Congress is limited to the standing qualifications prescribed in the Constitution. Respondents concede that appellant met these. Thus, there is no need to remand this case to determine whether he was entitled to be seated in the 90th Congress. Therefore, the Court holds that, since appellant was duly elected by the voters of the 18th Congressional District of New York and was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership.
Petitioners seek additional forms of equitable relief, including mandamus for the release of petitioner appellant’s back pay. The propriety of such remedies, however, is more appropriately considered in the first instance by the courts below. Therefore, as to respondents the judgment of the Court of Appeals for the District of Columbia Circuit is affirmed. As to the other respondents, the judgment of the Court of Appeals for the District of Columbia Circuit is reversed and the case is remanded to the United States District Court for the District of Columbia with instructions to enter a declaratory judgment and for further proceedings consistent with this opinion.
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