Quoting Baker v. Carr, 369 U.S. 186, 217 (1962), the circuit court enunciated the prominent characteristics of political questions: a textually demonstrable constitutional commitment of the Using this definition, the court found a complete absence of judicially discoverable and manageable standards for resolving the question of whether Senator Cannon could use paid staff members in his campaign activities. The court could find no guidelines, judicial or administrative, to establish a standard for determining whether public compensation of Mr. Sobsey was permissible when performing campaign activities. The plaintiff had argued that appropriated funds could be used solely for statutorily enumerated purposes. The court reasoned that assuming the appropriated funds were intended solely to compensate staffers for performance of their official duties, the issue was whether campaign work was an official activity. It concluded that not even the Senate itself could reach a consensus on the propriety of using staff members in election campaigns. In reviewing the legislative history of Rule 43 the court found that the Senate Select Committee on Standards, which in 1968 had recommended passage of Rule 43, stated in its report on the Rule that the Committee did not intend for the Rule to be used to deter campaign activity by Senate employees beyond involvement with campaign monies. The court further noted that it was not until after Senator Cannon's 1976 re-election campaign that the Senate began to reconsider the role of staff in senatorial campaigns. The court also noted that the Senate was still studying the question. The court stated that in 1976 (and at present) there were no manageable standards to apply to staff participation in a Senate re-election campaign. In addition, the Senate, which was authorized to do so, could not resolve the issue. Thus, the interpretation of the False Claims Act urged by the plaintiff "would license the courts to monitor every action taken by a Senator and his aide in an effort to determine whether it is sufficiently 'official' or too 'political."" [Id. at 1384] The court concluded its discussion on this issue by stating: In the absence of any discernable legal standard-or even of a congressional policy determination-that would aid consideration and decision of the question raised by appellant's first count, we are loathe to give the False Claims Act an interpretation that would require the judiciary to develop rules of behavior for the Legislative Branch. We are unwilling to conclude that Congress gave the courts a free hand to deal with so sensitive and controversial a problem, or invited them to assume the role of political overseer of the other branches of Government. Accordingly, we affirm the District Court's dis- The plaintiff's second argument was that at unspecified times unnamed members of Senator Cannon's staff rendered personal services. for the Senator and his family while collecting their Government salaries. The circuit court concurred with the district court which had held that this allegation did not state a claim upon which relief could be granted because the plaintiff had not pointed to one specific instance in which a member of Senator Cannon's personal staff was paid out of public funds for personal tasks he or she performed. The court noted that Rule 9(b) of the Federal Rules of Civil Procedure requires that "[i]n all avernments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." The court continued, stating: It cannot be doubted that "[n]ormally this means that the pleader must state the time, place and content of the false misrepresentations, the fact misrepresented and what was obtained or given up as a consequence of the fraud." The rule serves to discourage the initiation of suits brought solely for their nuisance value, and safeguards potential defendants from frivolous accusations of moral turpitude. The need for this protection is especially acute where, as here, the principal defendant is an elected official whose reputation and position are particularly vulnerable to accusations of wrong-doing. And because "fraud" encompasses a wide variety of activities, the requirements of Rule 9 (b) guarantee all defendants sufficient information to allow for preparation of a response. [Id. (footnotes omitted)] The court found that the plaintiff's allegations were too generalized and vague: no staff members were specified, no personal services were cited, no precise time was given, no neglect of duties was averred. The court noted that the rules of civil procedure should not be strictly construed, and a litigant ought not be denied his day in court merely on the ground that his complaint is inartfully drawn. Nonetheless, although the usual manner of treating a poorly drawn complaint is to grant leave to amend or to dismiss the complaint without prejudice, in this case the circuit court upheld the district court's dismissal based on the fact that the plaintiff had more than eleven months to remedy the deficiencies of the original pleading but failed to do so. The plaintiff moved for a rehearing en bane on February 12, 1981. Status The case is pending before the U.S. Court of Appeals for the District of Columbia Circuit. The complete text of the January 30, 1981 opinion of the court of appeals is printed in the "Decisions" section of this report at p. 569. United States v. Flood Criminal Case Nos. 78-543 and 78–561 (D.D.C.) and Nos. 79– 1219 and 79-1220 (D.C. Cir.) On September 5, 1978, an indictment was filed in the U.S. District Court for the Central District of California against Congressman Daniel J. Flood of Pennsylvania. The three-count indictment charged Rep. Flood with committing perjury before that U.S. District Court and before a Federal grand jury, in violation of 18 U.S.C. § 1623. On October 12, 1978, a 10-count indictment against Rep. Flood was filed in the U.S. District Court for the District of Columbia. In the indictment, he was charged with one count of conspiracy, in violation of 18 U.S.C. § 371, and nine counts of bribery and aiding and abetting bribery, in violation of 18 U.S.C. §§ 201, 202. On October 18, 1978, the indictment which had been filed in California was transferred to the U.S. District Court for the District of Columbia. The two indictments were consolidated on October 23, 1978. On January 4, 1979, the district court issued a Memorandum-Order ruling on several pre-trial motions filed by the Government and the defense. [United States v. Flood, Criminal Nos. 78-543 and 78-561 (D.D.C. January 4, 1979)] Among them was a motion to dismiss based on Rep. Flood's assertion that the Speech or Debate Clause 1 required dismissal of the indictment "in view of the gross intrusions of the Executive into Legislative areas." [Memorandum of Defendant Flood Concerning the Effect of the Speech or Debate Clause Upon the Government's Case, December 4, 1978, at 6] In denying Rep. Flood's motion to dismiss on Speech or Debate Clause grounds, the court used the same reasons set forth in refusing discovery by the defense of the grand jury minutes. Rep. Flood had sought access to those minutes in an effort to determine whether they showed that testimony had been taken by the grand jury in violation of the Speech or Debate Clause. In denying access to the minutes, the court stated that under its view of United States v. Calandra, 414 U.S. 338 (1974); United States v. Brewster, 408 U.S. 501 (1972); United States v. Johnson, 383 U.S. 169 (1966); and United States v. Costello, 350 U.S. 359 (1976), those minutes were not material to the issue, to be tried under the indictment. [Memorandum Order, January 4, 1979, at 51 Additionally, Rep. Flood had moved for a continuance until the Supreme Court had rendered its decision in United States v. Helstoski, 570 F. 2d 511 (3d Cir. 1977), cert. granted, 439 U.S. 1045 (1978), another action involving an assertion of Speech or Debate Clause immunity. (See page 71 of this report for a discussion of that case.) In response to this mction the court stated: Since certiorari was granted very recently, it is unlikely that 1 The Speech or Debate Clause of the U.S. Constitution provides that "for any Speech or Debate in either House. [U.S. Senators and U.S. Representatives] shall not be questioned in any other Place." [art. I, § 6, cl. 1] case indefinitely on the assumption that the ruling by the Supreme Court in the Brewster case is no longer law. [Id. at 3] The court went on to deal at length with other discovery matters sought by the defense. On January 15, 1979, the jury was selected. Also on that date, the court granted the Government's oral motion to dismiss counts 3 and 4 of the indictment and a portion of count 1, the conspiracy count. On January 25, 1979, the court granted another oral motion of the defendant to dismiss under count 1 of the indictment, one of the overt acts charged. On February 3, 1979, a mistrial was declared when the jury stated that it was unable to reach a verdict.. On February 12, 1979, Rep. Flood filed a motion for judgment of acquittal. On February 16, 1979, Rep. Flood filed a motion to enjoin the investigation of jurors by the Department of Justice and to have any necessary inquiry conducted by the court in public session to be in accordance with Rule 606 of the Federal Rules of Evidence. In a Memorandum-Order filed by the court on February 27, 1979, the court denied the motion for judgment of acquittal and the motion to enjoin the Department of Justice from interrogating jurors from the first trial. A notice of appeal from the denial of the motion to enjoin the Department of Justice was filed on the same day. On March 1, 1979 the court of appeals denied the defendant's request for an injunction pending appeal. Due to Rep. Flood's medical problems (eye opacification and tinnitus), his retrial did not begin on June 4, 1979 as had been scheduled. On June 15, 1979 the court set a new trial date of October 15, 1979. At status calls over the next few months, the trial date was again changed several times. On November 8, 1979, Judge Gasch finally set the date as February 25, 1980. Also on November 8, defense counsel initially raised the issue of Rep. Flood's competence to stand trial and the Government requested an order permitting an independent competency examination. It was granted without objection from the defendant. After extensive examinations by psychiatrists and psychologists, the matter was set for hearing and testimony was taken on January 15-19, 1980. On February 8, 1980, Judge Gasch issued his memorandum of findings of fact and conclusions of law holding the defendant competent to stand trial. Although the Judge noted that "[i]t is clear that impairment of his mind does exist," he also found that it "is not clear that his mind has deteriorated to the point that he lacks present ability to assist counsel in preparing his defense." [Memorandum, Febru ary 8, 1980, at 3-4] In part, Judge Gasch based his opinion on Rep Flood's performance on the witness stand during the competency hearing: This testimony, brought out both by the prosecution and the defense, demonstrated considerable knowledge by the defendant of the overt acts charged in the conspiracy, as well as specific allegations of bribery. It indicates basic knowledge of the details and ability to reconstruct what happened in connection with these specific incidents. United States v. Flood Criminal Case Nos. 78-543 and 78-561 (D.D.C.) and Nos. 79– 1219 and 79-1220 (D.C. Cir.) On September 5, 1978, an indictment was filed in the U.S. District Court for the Central District of California against Congressman Daniel J. Flood of Pennsylvania. The three-count indictment charged Rep. Flood with committing perjury before that U.S. District Court and before a Federal grand jury, in violation of 18 U.S.C. § 1623. On October 12, 1978, a 10-count indictment against Rep. Flood was filed in the U.S. District Court for the District of Columbia. In the indictment, he was charged with one count of conspiracy, in violation of 18 U.S.C. § 371, and nine counts of bribery and aiding and abetting bribery, in violation of 18 U.S.C. §§ 201, 202. On October 18, 1978, the indictment which had been filed in California was transferred to the U.S. District Court for the District of Columbia. The two indictments were consolidated on October 23, 1978. On January 4, 1979, the district court issued a Memorandum-Order ruling on several pre-trial motions filed by the Government and the defense. [United States v. Flood, Criminal Nos. 78-543 and 78-561 (D.D.C. January 4, 1979)] Among them was a motion to dismiss based on Rep. Flood's assertion that the Speech or Debate Clause 1 required dismissal of the indictment "in view of the gross intrusions of the Executive into Legislative areas." [Memorandum of Defendant Flood Concerning the Effect of the Speech or Debate Clause Upon the Government's Case, December 4, 1978, at 6] In denying Rep. Flood's motion to dismiss on Speech or Debate Clause grounds, the court used the same reasons set forth in refusing discovery by the defense of the grand jury minutes. Rep. Flood had sought access to those minutes in an effort to determine whether they showed that testimony had been taken by the grand jury in violation of the Speech or Debate Clause. In denying access to the minutes, the court stated that under its view of United States v. Calandra, 414 U.S. 338 (1974); United States v. Brewster, 408 U.S. 501 (1972); United States v. Johnson, 383 U.S. 169 (1966); and United States v. Costello, 350 U.S. 359 (1976), those minutes were not material to the issue, to be tried under the indictment. [Memorandum Order, January 4, 1979, at 5] Additionally, Rep. Flood had moved for a continuance until the Supreme Court had rendered its decision in United States v. Helstoski, 570 F. 2d 511 (3d Cir. 1977), cert. granted, 439 U.S. 1045 (1978), another action involving an assertion of Speech or Debate Clause immunity. (See page 71 of this report for a discussion of that case.) In response to this mction the court stated: Since certiorari was granted very recently, it is unlikely that 1 The Speech or Debate Clause of the U.S. Constitution provides that "for any Speech or Debate in either House. [U.S. Senators and U.S. Representatives] shall not be questioned in any other Place." [art. I, § 6, cl. 1] |