(1) the court lacked subject matter jurisdiction because adjudication would violate the doctrine of separation of powers; (2) the plaintiffs lacked standing; (3) the action was barred by res judicata; and (4) the complaint failed to state a claim upon which relief could be granted. On the same day, the General Counsel to the Clerk of the House filed a similar motion on behalf of the House defendants.

In a memorandum filed in support of the motion to dismiss, the U.S. Attorney asserted that the case was nonjusticiable because the authority to appoint and compensate officers such as the chaplains of either House of Congress was "textually committed" to the legislative branch by Article I of the Constitution. Additionally, the memorandum argued, since the plaintiffs were not members of either body of the legislature, they lacked standing, as taxpayers or otherwise, to challenge the compensation of legislative officers. Even if the court were to decide that this case presented justiciable issues, the U.S. Attorney continued, the practice of Congress choosing an officer designated as chaplain and paying his expenses could withstand constitutional challenge. The memorandum noted that both history and relevant case law demonstrated that having a chaplain and opening daily legislative sessions with a prayer was constitutional. It followed, therefore, that compensating the chaplain was likewise constitutional. Further, under the standards to be considered in reviewing Establishment Clause questions, the challenged practices clearly pass constitutional muster. The purpose of having a chaplain and opening legislative sessions with a prayer was "secular"-it called upon the legislators "to reflect upon their solemn purpose and the gravity of the responsibility placed upon their shoulders." [Memorandum in support of Motion of United States to Dismiss September 12, 1980, at 10] The primary effect of the opening prayer did not advance religion-it simply provided the "appropriate atmosphere for beginning the legislative session." [Id. at 11] And there was no excessive entanglement with religion. Finally, the memorandum asserted, the doctrine of res judicata barred the action, since plaintiff Madalyn O'Hair's virtually identical suit seeking similar relief against essentially the same parties had been dismissed with prejudice in 1973. [O'Hair v. Nixon, Civil No. 410-73 (D.D.C. March 21, 1973)]

In his memorandum in support of the motion to dismiss, filed on September 15, 1980, the General Counsel to the Clerk made comparable arguments. In essence, the General Counsel took the position that the complaint failed to state a claim for which relief could be granted because, as a matter of law, neither the chaplaincy, nor the statute providing his salary, violated the First Amendment's Establishment Clause. The General Counsel summarized his argument as follows:

As interpreted in accordance with the Supreme Court's three part requirement of Lemon v. Kurtzman, 403 U.S. 602 (viz., statute must have a secular purpose, a primary effect other than the advancement of religion, and no tendency to excessively entangle the government in religious affairs), the Legislative Branch Appropriation funding the Chaplain, and the rule of the House creating the Chaplain as an officer of the House and describing his duties is the purely secular one of

fostering a spiritually wholesome environment in which to
perform the Article I legislative function devolved upon Con-
gress and its individual Members-a function carried out
before and after adoption of the Constitution since the First
Congress. Nor does the Chaplain have the primary effect of es-
tablishing religion, based not only on the Supreme Court's
analysis of prayer by Chaplains of Congress as the perform-
ance by a religious person of a secular function but also on the
premise of the Free Exercise Clause that the government
must not manifest hostility toward religion, especially where
Members are required by the Constitution and Rules of the
House to attend sessions of the House away from their home
districts, and their family clergymen. Finally, the Chaplain
does not represent "excessive entanglement" with religion as
evidenced by the absence of any surveillance of or involve-
ment in his office by the House or its instrumentalities.
[Memorandum of Points and Authorities of Honorable
Thomas P. O'Neill . . . ., in Support of Motion to Dismiss,
September 15, 1980, at 8]

In addition, the House defendants asserted that under its clear constitutional authority to choose its officers and make its internal rules, the House had "provided a chaplain for two hundred years without executive or judicial interference" and that the political question doctrine, "as a well recognized incident of separation of powers", together with the Speech or Debate Clause immunity from being questioned about matters within the constitutionally defined powers of Congress, made the case nonjusticiable. [Id. at 9]

In an order filed on September 19, 1980, U.S. District Court Judge Oberdorfer granted Senator Jesse Helms of North Carolina, Senator Gordon Humphreys of New Hampshire, and Congressman Guy Vander Jagt of Michigan leave to intervene in the case as party defendants. In their subsequent answer to the complaint, filed on September 22, 1980, the intervening defendants also sought dismissal of the action for reasons in line with those put forth by the other defendants.

On October 27, 1980, the plaintiffs filed an opposition to the motions of the defendants to dismiss the complaint and a motion for summary judgment. In a statement in support of the motion for summary judgment, the plaintiffs attempted to answer the justiciability, standing, res judicata, and constitutionality arguments raised by the defendants. On the justiciability question, the plaintiffs asserted that the courts were equipped to determine the issues of constitutional interpretation posed by the case: reconciling the authority of Congress to appoint officers with the tenets of the First Amendment. On the standing question, the plaintiffs noted that a case relied on by the defendants, Elliott v. White, 23 F.2d 997 (D.C. Cir. 1928), which also involved a requested injunction against paying the salaries of the Congressional chaplains and which was dismissed for lack of standing, was no longer valid law. The basis for the decision in that case, the plaintiffs contended, had been overruled in Flast v. Cohen, 392 U.S. 83 (1968), which accorded standing to Federal taxpayers challenging a Federal law which provided aid to religious schools. On the res judicata question, the plaintiffs claimed the earlier O'Hair v. Nixon case was in

apposite since process was quashed and no decision was ever made on the merits. Further, the plaintiff's asserted. the complaint there challenged prayers at the White House, not in Congress.

Finally, on the constitutionality question, the plaintiffs argued that the statutes authorizing the payment of salaries for the legislative chaplains violate the three-pronged test for determining whether a particular government law or activity is permissible under the Establishment Clause. First, the plaintiffs asserted, the statutes had no "clearly secular" purpose, since they authorize the use of public funds to provide legislators with "religious counsel". Like the laws providing for a daily invocation of prayer in public schools, these statutes had a "significant religious purpose" and thereby contravene the Establishment Clause, the plaintiffs claimed. Only in cases involving "captive" persons, like prison inmates or members of the armed forces, had the U.S. Supreme Court sanctioned funding for chaplains, the plaintiff contended, and since Congressmen were able to attend the church of their choosing near the Capitol, their freedom of worship would not be abridged by striking down these statutes. Second, the plaintiffs asserted, the statutes had the "primary effect" of advancing religion, even if they had a secular legislative purpose, since the salaries of the chaplains financed "a specifically religious activity-prayer." Third, the plaintiffs asserted, the statutes caused excessive government entanglement with religion, particularly with the Protestant religion, the faith of the chaplains of both Houses of Congress. The use of public funds to support the activities of ministers of particular churches, to the exclusion of other faiths, the plaintiffs maintained, was impermissible under the First Amendment.

On November 6, 1980, the General Counsel to the Clerk, on behalf of the House defendants, filed an opposition to the plaintiffs' motion for summary judgment. He also filed a reply to the plaintiffs' opposition to their motion to dismiss the complaint. Again, the General Counsel challenged the plaintiffs' notions of justiciability, Speech or Debate Clause implications, and First Amendment law. On the latter issue, the General Counsel strongly disagreed that the statutes at issue authorized "religious counsel" for Members, and asserted that "the statute is devoid of any such express or implied grant of such authority." [Opposition to the Motion for Summary Judgment, November 6, 1980, at 4] Moreover, the memorandum continued, "the payment of a salary to the House chaplain can only infinitesimally and metaphysically, provide incidental aid to religion when compared to incidental aid to religion provided by educational grants to religiously affiliated schools. . . or by general public welfare programs." [Id. at 4-5] Finally, the General Counsel argued :

We do not contest that the Chaplain offers prayers or that prayers are by their nature religious. We simply contend, as the court concluded in Colo v. Treasurer and Receiver General, 392 N.E. 2d 1195, 1200 (Mass. 1979) that it cannot be said that they have the primary effect of advancing religion, but rather provide a ceremonial moment of meditation upon the commencement of legislative sessions. [Id. at 6]

On November 10, 1980, the intervenor defendants Senator Jesse Helms, et al. formally moved to dismiss the complaint. In a memorandum in support of this motion, and in opposition to the plaintiffs' motion for summary judgment, the intervenors raised political question, standing, and First Amendment arguments similar to those advanced by the other defendants.

On November 17, 1980, the U.S. Attorney, on behalf of the United States, the Congress, the Senate, and the Senate and Executive Branch defendants, filed a memorandum in opposition to the plaintiffs' motion for summary judgment. The memorandum reiterated the arguments raised previously, including that of res judicata.

On January 6, 1981, the district court held a hearing on the outstanding motions and Judge Oberdorfer, after oral argument, indicated his intention to grant the defendants' motions to dismiss the complaint. This was done in an order filed on January 12, 1981, which also denied the plaintiffs' motion for summary judgment.

In a memorandum filed the same day, the court held that the plaintiffs lacked standing because "a taxpayer's action to bar the expenditure of funds for the services of Chaplains in the House and Senate is precluded by our Court of Appeals decision in Elliott v. White, 23 F.2d 997 (D.C. Cir. 1928)". [Murray v. Morton, 505 F. Supp. 144, 145 (D.D.C. 1981)] Although Judge Oberdorfer recognized that a line of cases had granted standing to taxpayers to challenge expenditures for general public purposes in violation of the Establishment Clause, he held that that this did not confer standing to challenge the constitutionality of Congress' conduct of its internal affairs, specifically the compensation of its officers. The court noted that the challenge in this case was only to the payment of funds for the Chaplains, not to their appointment or to the opening prayer at each session of the House and Senate. Given that, the court stated, "[T]he conclusion seems inescapable that it would be 'impossible' for this Court, consistently with the respect which courts owe to coordinate branches of government and to each other, to undertake an 'independent resolution' of the question of Congress' power to compensate its Chaplains, on this complaint of these particular taxpayers." [Id. at 147] The court concluded:

The taxpayer plantiffs allege no interest, other than their views with respect to religion, to distinguish themselves or their personal stake in the outcome from that of any one of the population who pay taxes. They have no duty, indeed no occasion, to be present when the Chaplains perform their services in the House and Senate. They do not allege that they have been offended by, or even seen, the material allegedly circulated by the Chaplain of the Senate. This is not an action brought by a Senator, Congressman, or employee of the Senate or the House. See e.g., Powell v. McCormack, supra; Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974). Nor is it a complaint by one allegedly suffering from discrimination because of persistent employment of chaplains of one denomination rather than another. Accordingly, unless and until the Court of Appeals or the Supreme Court decides otherwise, this Court considers itself bound by Elliott to dismiss this complaint. [Id.]

Status-The case is pending in the U.S. District Court for the District of Columbia.

The complete text of the January 12, 1981 memorandum of the district court is printed in the "Decisions" section of this report at p. 498.

Common Cause v. Bolger (formerly Bailar, formerly Klassen) Civil Action No. 1887-73 (D.D.C.)

Originally filed on October 5, 1973, this action sought declaratory and injunctive relief against the Postmaster General and the Secretary of the Treasury for actions they allegedly performed or failed to perform in the course of their official duties relating to the Congressional franking privilege. In sum, Common Cause sought to have the Postmaster General enjoined from carrying franked mail and the Secretary of the Treasury enjoined from paying for franked mail on the grounds that the franking statute was unconstitutional.

The plaintiffs, Common Cause and John W. Gardner, its chairman, amended their original complaint on March 12, 1974, following the enactment on December 18, 1973, of the Franking Act of 1973 [Pub. L. 93-191], to incorporate references to the new statutory language.

The plaintiffs argued that the use of the frank for newsletters and new releases by Members of Congress who were candidates for nomination or election or engaged in fundraising for a candidacy, and the use of the frank on mail such as condolences, biographies, pictures or complimentary writings by a Member: (1) abridged the plaintiffs' First Amendment rights; (2) denied their Fifth Amendment rights; (3) was an unlawful appropriation of public funds for nonpublic purposes; (4) violated the Postmaster General's statutory duty; and (5) was an unlawful disbursement of public funds contrary to the statutory duties of the Secretary of the Treasury. [See 39 U.S.C. § 3210]

On May 31, 1974, the defendants filed a motion to dismiss, together with supporting memorandum, asserting as grounds that:

[T]he court lacks jurisdiction over the subject matter of this action in that neither of the above-named defendants are proper parties to this proceeding, the plaintiffs have failed to exhaust the administrative remedies available to them, the plaintiffs lack standing to maintain this action, and ***the complaint fails to state a claim upon which relief may be granted. [Defendants' Motion to Dismiss, May 31, 1974]

On June 14, 1974, the plaintiffs filed a memorandum in opposition to the defendants' motion to dismiss as well as an application to convene a three-judge district court. On June 26, 1974, U.S. District Judge John H. Pratt denied without opinion the defendants' motion to dismiss. On July 1, 1974, Judge Pratt signed an order convening the threejudge district court requested by the plaintiffs. A week later, July 8, 1974, the defendants filed their answer to the amended complaint.

On January 27, 1975, oral argument was held on a renewed motion to dismiss which had been submitted by the defendants. This motion raised the same arguments that had been made in defendants' first