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January 12, 1981

Jon Garth MURRAY et al., Plaintiffs,
Azie Taylor MORTON et al., Defendants

The opinion of the court was delivered by: OBERDORFER



 Plaintiffs are two federal taxpayers and an organization, the Society of Separationists, most of whose members are taxpayers. None of the plaintiffs believes in any Supreme Being nor practices any religion. They sue the United States Congress, the United States Senate, the United States House of Representatives, together with several officers of each House including individual Senators, individual Congressmen, and the Chaplain of each House. Plaintiffs have also named as defendants the United States, the Treasurer of the United States and the Secretary of the Treasury. Plaintiffs claim that payment of salaries and certain expenses for the Chaplains of the Senate and the House of Representatives and the Acts of Congress authorizing and appropriating money for those expenditures violate the Establishment Clause of the First Amendment of the Constitution. They seek declaratory and injunctive relief. The complaint does not challenge the 200 year old practice of Congress appointing a Chaplain as an officer of each House. Nor does the complaint put at issue the traditional practice of a prayer by a Chaplain at the opening of each session of the Senate and of the House. The challenge is only to the payment of appropriated funds for these services.

 The matter is before the Court on defendants' motions to dismiss and plaintiffs' motion for summary judgment. The Court will grant defendants' motions to dismiss 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, 57 App. D.C. 389, 23 F.2d 997 (D.C.Cir.1928) (Charles H. Robb, J.) (cited with appreciation of the difficulty of the question "who may be heard to challenge such practices" as "invocational prayers in legislative chambers," in Abington School District v. Schempp, 374 U.S. 203, 299, 300, 83 S. Ct. 1560, 1612, 1613, 10 L. Ed. 2d 844 (1963) (Brennan, J., concurring)).


 The issues posed by these plaintiffs and their complaint are not new to this Court, and their disposition is controlled by the results of those earlier proceedings. One of the same plaintiffs (who appears to be in privity with all the other plaintiffs) sued to enjoin the then President, the Chaplains of the Senate and the House, the Sergeants-at-Arms of each House and the Treasurer of the United States from, among other things, paying the salaries of the Chaplains. Another judge of this Court precluded and quashed service of process on the President named as a defendant and dismissed the action. O'Hair v. Nixon, et al., Civil Action No. 410-73 (Dismissed March 21, 1973).

 In Elliott v. White, our Court of Appeals had before it a similar suit brought by a taxpayer to prohibit the Treasurer of the United States from disbursing funds of the United States for salaries of the Chaplains of the Senate and House of Representatives, as well as of the Army and the Navy of the United States. On the authority of the then recent decision in Frothingham v. Mellon, 262 U.S. 447, 43 S. Ct. 597, 67 L. Ed. 1078 (1923), the Court of Appeals dismissed the complaint.

 There has been great change in the Supreme Court's interpretation of standing and the related concepts of justiciability since Frothingham. The familiar landmarks in that change include the Supreme Court's decisions in Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968); Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962) and Powell v. McCormack, 395 U.S. 486, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969). In Flast the Supreme Court recognized a taxpayer's standing to sue to prevent an expenditure of appropriated funds for the benefit of the public in contravention of the Establishment Clause of the First Amendment. Decisions since Flast have left undisturbed the standing of a taxpayer to challenge expenditures for general public purposes in violation of the Establishment Clause. Flast and its progeny did not, however, resolve the interrelated questions of standing and justiciability with respect to a taxpayer's suit challenging the constitutionality of Congress' decisions and expenditures concerning its internal affairs.

 A review of the leading cases brought to challenge the constitutionality of Congress' actions in managing its own affairs or dealing directly with citizens discloses that each plaintiff in those cases was either a member, an employee, or a person very directly affected by the Congressional activity. See e.g., Powell v. McCormack, 395 U.S. 486, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969); Dombrowski v. Eastland, 387 U.S. 82, 87 S. Ct. 1425, 18 L. Ed. 2d 577 (1967); Barry v. United States ex rel. Cunningham, 279 U.S. 597, 49 S. Ct. 452, 73 L. Ed. 867 (1929); Kilbourn v. Thompson, 103 U.S. 168, 26 L. Ed. 377 (1881); Consumers' Union of United States, Inc. v. Periodical Correspondence Ass'n., 169 U.S. App. D.C. 370, 515 F.2d 1341 (D.C.Cir.1975), cert. denied, 423 U.S. 1051, 96 S. Ct. 780, 46 L. Ed. 2d 640 (1976). Neither the Flast line of cases relating to the standing of taxpayers to challenge official violations of the Constitution nor the decisions honoring complaints by individual Senators or Congressmen with respect to Congress' internal affairs authorize a court in this circuit to accord standing to a taxpayer challenging Congress' conduct of its internal affairs while Elliot remains intact.

 The continuing vitality of Elliott in light of Flast is confirmed by the Supreme Court's requirement that courts honor a "textually demonstrable constitutional commitment ... to a coordinate political department." Powell v. McCormack, 395 U.S. at 518, 89 S. Ct. at 1962 quoting Baker v. Carr, 369 U.S. at 217, 82 S. Ct. at 710. The text of the Constitution commits to Congress power to select its own officers, establish rules for its proceedings, and be free from judicial review of matters said and done by its officers in the course of those proceedings. Here, as defendants emphasize, Article I, Section 2, with respect to the House of Representatives, and Section 3, with respect to the Senate, provides that each "shall chuse their other Officers." Section 5 provides that

Each House may determine the Rules of its Proceedings.

 And, of course, Section 6 provides that

For any Speech or Debate in either House, they shall not be questioned in any other Place. *fn1"

 This appreciation of Elliott is further reinforced by the Supreme Court's admonition to courts not to entertain a case where it would be impossible to undertake "independent resolution" of the question "without expressing lack of respect due coordinate branches of government." Baker v. Carr, 369 U.S. at 217, 82 S. ...

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