United States Court of Appeals for the Ninth Circuit No. 77-2652 TRUEMAN E. CHASE, PLAINTIFF-APPELLANT, v. HON. EDWARD M. KENNEDY, UNITED STATES SENATOR, HON. ADLAI E. STEVENSON, III, UNITED STATES SENATOR, HON. ALAN CRANSTON, UNITED STATES SENATOR, DEFENDANTS-APPELLEES [August 6, 1979] On Appeal from the United States District Court MEMORANDUM Before: ELY and WALLACE, Circuit Judges, and Appellant, Trueman E. Chase, contends that the district court erred in dismissing his complaint wherein he alleges violations of his first amendment right to petition the government for redress of grievances arising from the failure of United States Senators to act upon said petition to Chase's satisfaction. The contention, however, is without merit. Appellant is confusing his right to petition with the supposed right to have it acted upon in a certain way. There is no authority to support the existence of the latter alleged right, and common sense would dictate otherwise, as an adoption of appellant's contention would create an untenable situation whereby each Senator would have to placate every constituent who wrote to him/her asking for some form of relief or otherwise be liable. 1 Hon. Robert M. Takasugi, United States District Judge for the Central District of California, sitting by designation. (359) UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Civil Action No. 1887-73 COMMON CAUSE, ET AL., PLAINTIFFS, v. WILLIAM F. BOLGER, ET AL., DEFENDANTS, and HOUSE COMMISSION ON CONGRESSIONAL MAILING STANDARDS, and UNITED STATES SENATE, AMICUS CURIAE. MEMORANDUM OPINION This action challenges the constitutionality of certain portions of the congressional franking statute, 39 U.S.C. § 3210 (1976 ed.). Plaintiffs, whose members include more than fifty candidates challenging incumbent members of Congress for election, contend that the statute is unconstitutional on its face and violates their First and Fifth Amendment rights by subsidizing the election of incumbent congressmen but not of challengers. The defendants, the intervenor and the amicus curiae have moved to dismiss contending that plaintiffs lack standing, that the action is unripe and moot, and that this court should dismiss the case on prudential grounds. This is the third such motion to dismiss that defendants have made since this case was first filed in 1973. For the reasons stated below, the motion to dismiss is denied. 1. STANDING Secretary of the Treasury Miller and Postmaster General Bolger, the defendants, the House Commission on Congressional Mailing Standards, the intervenor, and the United States Senate, amicus curiae, all contend that Common Cause and John Gardner lack standing to bring this action. If these assertions are correct, and if the plaintiffs are not proper parties to press this claim the action must be dismissed for lack of jurisdiction under the case or controversy requirement of Article III of the Constitution. This court has twice denied a motion to dismiss for lack of standing, once by order of June 26, 1974, and once by opinion on February 10, 1975. Earlier rulings of this sort are "law of the case," and on non-jurisdictional issues are normally conclusive. E.g., Insurance Group Committee v. Denver & R.G.W.R. Co., 329 U.S. 607, 612 (1947); Petition of United States Steel Corporation, 479 F.2d 489, 494 (6th Cir. 1974), cert. denied, 414 U.S. 859 (1973). Where a jurisdictional challenge is repeated, however, as is the case where standing is in issue, the "law of the case" requirement is less rigid. Earlier jurisdictional rulings are entitled to important, but not dispositive weight. 1B Moore's Federal Practice ¶ 0.404, p. 452 (1980 ed.). If it can be shown that controlling authority has subsequently taken a clearly contrary view of the issue, then the renewed motion to dismiss for lack of jurisdiction may be appropriately filed and may prevail. See Crane Co. v. American Standard, Inc., 603 F.2d 244, 248-49 (2d Cir. 1979); Morrow v. Dillard, 580 F.2d 1284, 1294 (5th Cir. 1978). In this factual context, the burden is thus on the proponents of this motion to show that more recent decisions by the Supreme Court and the D.C. Circuit Court of Appeals compel this court to reverse its prior position and dismiss the complaint for want of standing. It is the position of all defendants that parties in plaintiffs' position must now make more specific and substantial threshold showings as to injury, causation, and redressability as the result of recent decisions. Specifically, defendants contend that the Supreme Court's decision in Warth v. Seldin, 422 U.S. 490, 501 (1975) and the D.C. Circuit's decision in Winpisinger v. Watson, No. 79-4371, Slip Op. (D.C.Cir. Apr. 10, 1980), cert. denied, 48 U.S.L.W. 3699 (1980), significantly change the law of standing, thereby requiring this court to reverse its two previous rulings. In these two cases, the courts dismissed complaints for lack of standing because plaintiffs failed to allege a "distinct and palpable injury" to themselves, Winpisinger v. Watson, supra, at 8-9; Warth v. Seldin, supra, at 501, an injury "that can fairly be traced to the challenged action of the defendant, and not injury that results from independent action of some third party not before the Court." Winpisinger v. Watson, supra, at 9, citing Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72 (1978);S imon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 41-42 (1976). In both Winpisinger and Warth, supra, plaintiffs failed to meet their burden of demonstrating the causality prerequisite to standing. According to this argument, plaintiffs' asserted interests are those in the election of certain candidates, and the election or defeat of particular candidates depends on too many other factors besides the operation of the franking statute to satisfy the causation requirements laid down in these cases. In other words, it could not be said that an order by the court granting plaintiffs the relief they seek would have remedied the harm they allege. To the extent that plaintiffs assert an interest in a fair and equal electoral process, defendants assert that such an interest is too remote, speculative, and abstract to confer standing on these plaintiffs to press this claim. Their process claim, according to this argument, is indistinguishable from`a generalized grievance of the citizenry about the operation of the political system. Plaintiffs respond by contending that regardless of electoral outcomes, the interest in a fair electoral process that they assert is directly affected by the defendants' actions under the franking statute. More 81-497 O - 81 - 24 over, plaintiffs allege that they suffer particularized harms distinct from those suffered by the citizenry at large. Under this characterization of the complaint, the causation requirements of the Warth and Winpisinger cases are not in issue, because the asserted harm is the franking statute and defendants' action thereunder. There is no third party action here complicating the issue. Plaintiffs are directly harmed by defendants' actions. We now turn to the complaint and examine it in detail in order to decide which is the proper characterization. Moreover, in ruling on this motion to dismiss, the court must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party. Warth v. Seldin, supra; Jenkins v. McKeithen, 395 U.S. 411, 421–422 (1969). Plaintiff Common Cause sues on behalf of its members who are: 1 1. Congressional candidates; 2. Contributors of lawful amounts of money to candidates for federal elective office and to political committees and organizations which support such candidates; 3. Campaign participants; 4. Registered voters for candidates for federal elective office; 5. "Regular and substantial users of the mails as a means of participation in the foregoing activities;" and 6. Taxpayers. In addition to the interests asserted on behalf of its members, Common Cause asserts its own interest as a "frequent and heavy" user of the mails, having spent $904,313.50 on postage during 1973.2 Plaintiff John Gardner alleges that he is a taxpaying citizen, residing in Maryland, who is a registered voter, and a contributor of lawful amounts of money to candidates for Congress, and a regular user of the mails for these purposes.3 In order for an organization such as Common Cause to bring suit on behalf of its members, it "must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable claim had the members themselves brought suit." Warth v. Seldin, supra, at 511; Sierra Club v. Morton, 405 U.S. 727, 734-41 (1972) (emphasis added). Accord, Committee for Full Employment v. Blumenthal, 606 F.2d 1062, 1067 (D.C.Cir. 1979); Animal Welfare Institute v. Kreps, 561 F.2d 1002, 1008 (D.C.Cir. 1977), cert. denied, 434 U.S. 1013 (1977). Moreover, standing in this situation. depends in substantial measure on the nature of the relief Warth v. Seldin, supra, at 515. Thus Common Cause must meet two tests in order to assert its members' claims. First, it must seek prospective relief, as it does in this case. Its prayer for relief asks for declaratory judgment and an injunction. 4 Second, the members themselves must have standing to assert the claims that the organization seeks to assert on their behalf. Common Cause thus stands in the shoes of its members in determining whether there is standing. A. As Candidates for elective office Common Cause alleges that its members include persons who have been and plan to be candidates for federal elective office. More than fifty such members challenged incumbent congressmen in the 1974 election, and, for the purposes of ruling on this motion to dismiss, it is safe to assume that Common Cause has members who ran against incumbents in later elections, and who will do so in the future. 6 Do these candidates, and thus Common Cause, have standing to challenge the franking statute? We believe that they do. Defendants' and intervenor's reliance on the causation requirements of Warth v. Seldin, supra, and Winpisinger v. Watson, supra, is misplaced because the injury involved here occurs regardless of the outcome of any particular election. According to plaintiffs' complaint, this injury consists in granting incumbents what amounts to a subsidy worth more than $50,000 to each incumbent." 8 This injury is personal to the candidates, substantial in effect, and directly traceable to the operation of the franking statute. In order to neutralize this advantage of incumbency, a challenger must raise substantially greater funds than he otherwise would, or, if he is able, contribute such moneys to his campaign out of his own pocket. The injury is substantial. The dollar value of the "contribution" is more than fifty times the maximum amount an individual can contribute to a congressional campaign, 2 U.S.C. § 441a (a) (1) (Supp. III 1979), and in most cases, more than five times the amount that a political party's central committee can contribute. 2 U.S.C. § 441a (d) (3) (Supp. III 1979). The injury is not only directly traceable to the operation of the franking statute, but as plaintiffs have framed this action, the statute itself is the injury because of its alleged facial invalidity. The Supreme Court's decision in Buckley v. Valeo, 424 U.S. 1, 11–12 (1976), supports candidate standing to challenge the constitutionality of the franking statute. In Buckley, the court found that plaintiffs, including Senator Buckley, had alleged a sufficient personal stake in the outcome of the proceeding whether certain campaign expenditure and contribution limitations were constitutional-to satisfy Article III's case or controversy requirement. Id. Moreover, the court noted that an association could assert the personal interests of its members in such a case. See id. at 12, n. 10. Candidate standing to challenge the franking statute is further supported by Schiaffo v. Helstoski, 492 F.2d 413 (3rd Cir. 1974), and by Hoeller v. Annunzio, 468 F.2d 522 (7th Cir. 1972), cert. denied, 412 U.S. 953 (1973). These decisions held that congressional candidates had standing to challenge the incumbent's use of the frank in election campaigns. ▲ Id., at ¶¶ 28–34. 5 Plaintiffs complaint, ¶ 4. Memorandum Opinion of Feb. 10, 1975, at pp. 3-4. "Plaintiffs' complaint, ¶ 20. Individual candidates may contribute as much as they wish to their campaigns. Buckley v. Valeo, 424 U.S. 1, 51–55 (1976). |