The opinion of the court was delivered by: PARKER
This is an action for declaratory and injunctive relief brought by three anti-war groups and by an individual member of each group
against defendants, the Architect of the Capitol, the Chief of the United States Capitol Police, and the Sergeants-at-Arms of the House of Representatives and of the Senate. The complaint asserts that certain rulings and actions of the defendants violate plaintiffs' right to equal protection freedom of speech, petition and assembly protected by the First and Fifth Amendments.
The facts of this case are not disputed. During the 91st Congress, the Subcommittee on National Security Policy and Scientific Developments of the House Committee on Foreign Affairs held hearings on American Prisoners of War in Southeast Asia. Appearing before that Subcommittee was a private citizen, H. Ross Perot, who had received some degree of public acclaim and attention through his attempt to fly food, medicine and supplies to American prisoners in North Vietnam. Mr. Perot testified before the Committee that release of the POWs would be expedited and accomplished when all Americans, regardless of their attitudes toward the war, had mobilized their support behind this objective. He urged Congressmen and Senators to include the POW issue in their campaign platforms to achieve this goal. To each member of the Committee, he offered to erect in the Capitol replicas of the stockades and cells in which the POWs were imprisoned -- if the Committee would obtain permission for him to do so in some "spot where every Congressman and Senator tends to pass every day . . . the cafeteria, the subway, you name it . . . I would like for the American people to see it because it produces an instant change of attitude concerning the prisoners."
The Subcommittee Chairman, Representative Clement J. Zablocki, responded favorably to Mr. Perot
and following established procedure, obtained the consent of the Speaker of the House of Representatives, John W. McCormack, to place the displays in the area of the Crypt of the Capitol which was under the control of the House of Representatives. The concurrence of the Chairman of the Senate Committee on Rules and Administration, Senator Everett Jordan, was received for placing a display on the Senate side of the Crypt.
The displays, unveiled in a brief ceremony on June 4, 1970,
consisted of full-size replicas of a bamboo cage, an open pit, an isolation cell, a tree with manacles attached to it, two life-size figures of American POWs, and various photographs of prisoners and plaques of written material.
Representative Zablocki explained that his committee was unable to accept the exhibit since their jurisdiction permitted investigation only of the American Prisoner of War situation. Speaker McCormack's reply was a mere acknowledgment of the receipt of plaintiffs' letter. Senator Jordan stated he was unable to give permission because pursuant to 40 U.S.C. § 189,
only property of the United States could be exhibited in the Capitol, which was not true of plaintiffs' display.
Plaintiffs then applied to this Court for injunctive relief. At the hearing on the preliminary injunction, this Court found that the Perot displays were in fact the property of the United States but that plaintiffs had not fully complied "with the procedures required for the acceptance of their exhibit by the United States and its subsequent display."
The motion for a preliminary injunction was denied.
In the fall of 1970, plaintiffs tendered their display to Congressman George E. Brown who promptly accepted it as the property of the United States. The Congressman wrote Speaker McCormack on October 18, 1970, requesting that the display be placed in the Capitol. The Speaker acknowledged receipt of the letter, but did not reply to the request. A month later, on November 17, a second letter of Congressman Brown containing a similar request was dispatched to Mr. McCormack. Not until December 28, 1970, however, did the Speaker reply, first apologizing for having been too busy to take action on the matter and, second, regretting that it was then too late to act, since the 91st Congress would officially terminate five days later, on January 2, 1971.
Noting that the Perot display has been removed from the Capitol Crypt and that the 91st Congress had dissolved, defendants then moved to dismiss the entire proceeding as moot, alleging that no case or controversy remains between the parties to be adjudicated, citing Davis v. Ichord, D.C. Cir., 143 U.S. App. D.C. 183, 442 F.2d 1207 and Golden v. Zwickler, 394 U.S. 103, 89 S. Ct. 956, 22 L. Ed. 2d 113 (1969). Neither of these cases is applicable to the instant situation. Each was concerned with parties who properly were denied declaratory relief from threatened future injury when such injury became impossible,
whereas here, accepting the validity of plaintiffs' claims for the purposes of the motion to dismiss, relief is sought for an injury which has already occurred and which is of a continuing nature. Plaintiffs on the other hand urge that Powell v. McCormack, 395 U.S. 486, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969), is determinative of the question of mootness. In Powell, the Court recognized that the House of Representatives is not a continuing body, but did not consider that dispositive of all claims which had arisen in the prior Congress. Rather, the Court examined the issues to determine whether any were still "live" and found that as to Powell's claim for back salary, in which he had "an obvious and continuing interest,"
"That claim is still unresolved and hotly contested by clearly adverse parties." 395 U.S. at 498, 89 S. Ct. at 1952.
That reasoning is persuasive and applicable here. The dissolution of Congress is not per se determinative of the viability of plaintiffs' constitutional claims. As noted in another context, "The rights asserted, imbedded in the Constitution, are of a continuing character, and the Vietnam problem remains." Jeannette Rankin Brigade v. ...