# Powell v. McCormack/Dissent Stewart

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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.

## Notes

1 See e.g., United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 202-204, 89 S.Ct. 361, 363-364, 21 L.Ed.2d 344; Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 178-179, 89 S.Ct. 347, 350-351, 21 L.Ed.2d 325.
2 See Gojack v. United States, 384 U.S. 702, 707, 86 S.Ct. 1689, 1693, 16 L.Ed.2d 870, n. 4 ('Neither the House of Representatives nor its committees are continuing bodies'); McGrain v. Daugherty, 273 U.S. 135, 181, 47 S.Ct. 319, 331, 71 L.Ed. 580. Forty-one of the present members of the House were not members of the 90th Congress; and two of the named defendants in this action, Messrs. Moore and Curtis, are no longer members of the House of Representatives. Moreover, the officer-employees of the House, such as the Sergeant at Arms, are re-elected by each new Congress. See n. 15, infra.
3 See also United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303; United States v. Aluminum Co. of America, 148 F.2d 416, 448. The Court has only recently concluded that there was no 'controversy' in Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113, because of 'the fact that it was most unlikely that the Congressman would again be a candidate for Congress.' Id., at 109, 89 S.Ct., at 960. It can hardly be maintained that the likelihood of the House of Representatives' again excluding Powell is any greater.
4 See also United States v. W. T. Grant Co., 345 U.S. 629, 632-633, 73 S.Ct. 894, 897; Local 74, United Brotherhood of Carpenters & Joiners v. NLRB, 341 U.S. 707, 715, 71 S.Ct. 966, 970, 95 L.Ed. 1309; Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 43, 65 S.Ct. 11, 14, 89 L.Ed. 29; Hecht Co. v. Bowles, 321 U.S. 321, 327, 64 S.Ct. 587, 88 L.Ed. 754; United States v. Trans-Missouri Freight Assn., 166 U.S. 290, 307-310, 17 S.Ct. 540, 546-547, 41 L.Ed. 1007.
5 With the exception of Gray, the 'continuing controversy' cases relied on by the petitioners were actions by the Government or its agencies to halt illegal conduct of the defendants, and, by example, of others engaged in similar conduct. See cases cited, supra, nn. 1, 3, 4. The principle that voluntary abandonment of an illegal practice will not make an action moot is especially, if not exclusively, applicable to such public law enforcement suits.
'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, 17 S.Ct., at 546.
The considerations of public enforcement of a statutory or regulatory scheme which inhere in those cases are not present in this litigation.
6 Certainly in every decision relied on by the petitioners the Court did not reject the mootness argument solely on the ground that the illegal practice had been voluntarily terminated. In each it proceeded to determine that there was in fact a continuing controversy.
7 House Resolution No. 2 provided in pertinent part:
'(2) That as punishment Adam Clayton Powell be and he hereby is fined the sum of $25,000, said sum to be pai 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.
8 Article I, § 5, of the Constitution specifically empowers each House to 'punish its Members for disorderly Behaviour.'
9 The salary claim is personal to Congressman Powell, and the other petitioners therefore clearly have no further interest in this lawsuit.
10 The Philippines Senate was composed of 24 Senators, 22 of whom were elected, and two of whom were appointed by the Governor General. Alejandrino was one of the two appointees. See 271 U.S., at 531-532, 46 S.Ct., at 601.
11 Under the Philippine Autonomy Act, 39 Stat. 545, this Court had jurisdiction to examine by writ of error the final judgments and decrees of the Supreme Court of the Philippine Islands in cases under the Constitution or statutes of the United States. A subsequent statute substituted the writ of certiorari. 39 Stat. 726.
12 '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, 46 S.Ct., at 601.
13 The petitioners rely on the following passage from Bond v. Floyd, 385 U.S. 116, 128, 87 S.Ct. 339, 345, 17 L.Ed.2d 235, n. 4, as dispositive of their contention that the salary claim prevents this case from being moot:
'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.
14 Alejandrino was the only petitioner in the case, and since he was an appointed Senator, it appears that there was no group of voters who remained without representation of their choice in the Senate during his suspension.
15 Act of Oct. 1, 1890, § 6, 26 Stat. 646, 2 U.S.C. § 83.
16 U.S.Const., Art. I, § 6; 2 U.S.C. § 47.
17 2 U.S.C. §§ 80, 78.
18 2 U.S.C. § 35.
19 2 U.S.C. § 34.
20 2 U.S.C. § 48.
21 The respondents allege without contradiction that the Sergeant at Arms does not have sufficient funds to pay Congressman Powell's back salary claims. Separate appropriations for the salaries of Congressmen are made in each fiscal year, see, e.g., 80 Stat. 354, 81 Stat. 127, 82 Stat. 398, and, according to the respondents, 'it is the custom of the Sergeant to turn back to the Treasury all unexpended funds at the end of each fiscal year.' Thus, the only funds still held by the Sergeant are said to be those appropriated for the present fiscal year commencing July 1, 1968.
22 '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.
23 United States v. King, 395 U.S. 1, 89 S.Ct. 1501, 23 L.Ed.2d 52. The petitioners suggest that the inability of the Court of Claims to grant such relief might make any remedy in that court inadequate. But since Powell's only remaining interest in the case is to collect his salary, a money judgment in the Court of Claims would be just as good as, and probably better than, mandatory relief against the agents of the House. The petitioners also suggest that the Court of Claims would be unable to grant relief because of the pendency of Powell's claim in another court, 28 U.S.C. § 1500, but that would, of course, constitute no obstacle if, as I suggest, the Court should order this action dismissed on grounds of mootness.
24 It is possible, for example, that the United States in such an action would not deny Powell's entitlement to the salary but would seek to offset that sum against the amounts which Powell was found by the House to have appropriated unlawfully from Government coffers to his own use.
25 Relying on Bank of Marin v. England, 385 U.S. 99, 101, 87 S.Ct. 274, 276, 17 L.Ed.2d 197, the petitioners complain that it would impose undue hardship on Powell to force him to 'start all over again' now that he has come this far in the present suit. In view of the Court's remand of this case for further proceedings with respect to Powell's remedy, it is at least doubtful that remitting him to an action in the Court of Claims would entail much more cost and delay than will be involved in the present case. And the inconvenience to litigants of further delay or litigation has never been deemed to justify departure from the sound principle, rooted in the Constitution, that important issues of constitutional law should be decided only if necessary and in cases presenting concrete and living controversies.
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