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services to 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 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 servlces were cited, no precise time was given, no neglect of duties was averted.

The court did note 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 was 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 couri upheld the district court's dismissal based on the fact that the plaintiff had more than eleven months to remedy the deficiencies of tie original pleading but failed to do so.

On February 12, 1981, the plaintiff filed a suggestion for a rehearing en banc which was denied by the appeals court on March

On June 1, 1981, the plaintiff filed a petition for a writ of certiorari in the U.S. Supreme Court (No. 80-2036), arguing that the "decision of the Court of Appeals significantly undermines the purpose of the False Claims Act to protect the Federal Treasury from raids by those who want to use Federal funds for their own purposes. Petition for Writ of Certiorari, June 1, 1981, at 6] In effect, said the plaintiff

, a special exemption from the act had been carved out for Members of Congress.

Turning first to the issue of justiciability in view of the political question doctrine, the plaintiff asserted that the appeals court decision was actually in conflict with Baker v. Carr. Although, said the plaintiff, the lower court identified the correct criteria set forth in

2, 1981.

Baker for determining whether a case presented a nonjusticiable political question, it applied the criteria incorrectly." (Id. at 8] Contending that the Senate would likely never reach a decision on the role of staff in campaigns, the plaintiff asserted that the courts must intervene to establish some standards:

While the Senate has been "struggling" with the issue concerning use of staff in political campaigns, . . . it may never issue a “decision." It is not unreasonable to assume that the Senate does not intend to regulate itself and its members. The Senate has no incentive to restrict the campaign activities of staff members. If the Senate does not restrict campaign activities of staff, then Senators will maintain their built-in advantage over challengers.

Congress passed into law 31 U.S.C. $ 628, providing that appropriated funds only can be used for their intended purpose. It is the business of courts to interpret statutes. The federal courts reasonably could determine, as the American Law Division of the Library of Congress has determined, that the use of Congressional staff for campaign purposes is illegal. Drawing the line between campaign activities and legislative activities may not be easy to do, but courts have drawn similar lines. See e.g. United Public Workers v. Mitchell, 330 U.S. 75 (1947)...

This case, like Baker v. Carr, concerns the allocation of political power. Baker involved the allocation of political power within a State. 369 U.S. at 226. This case concerns the allocation of political power between the incumbents and those seeking Congressional office. Insuring that every citizens' vote is equal is similar to insuring that incumbent candidates do not take unfair advantage of their office privileges; both preserve equal protection of the law. A Senator should know the difference between legislative work and campaign work, just as he must know the difference between a political contribution and a bribe. Although these lines may be difficult to draw, ultimately the

courts must draw them. (Id. at 9-10) The plaintiff in his petition also argued that because there was a division between the circuits concerning the justiciability of claims against Government officials involving the use of staff for campaign purposes (citing Shakman v. Democratic Organization of Cook County, 435 F.2d 267 (7th Cir. 1970)), and because the instant case presented "important federal questions," the Supreme Court should grant certiorari.

On June 18, 1981, the defendant filed an opposition to the petition for a writ of certiorari, arguing that “not only is the decision of the court below not in conflict with Baker v. Carr, supra, but rather relies on it and is consonant with it.” [Brief for the Respondents in Opposition, June 18, 1981, at 6] The defendants claimed that the Senate itself had considered the role of staff and had “not seen fit to restrict staff in the area of campaign activity except with respect to receipt of campaign funds.“ (Id. at 7] Therefore, the defendants maintained, the matter was "inappropriate for judicial scrutiny." [Id. at 11] As to the plaintiff's argument that there was a conflict between circuits on the justiciability question which the Supreme Court should resolve, the defendants noted that the Shakman case was distinguishable because it did not involve the False Claims Act and dealt with an identifiable system of abuses, involving a single county, not a coordinate branch of government. "In any event," the brief concluded, "Shakman turned on standing while the case at bar turned on prudential considerations." [Id. at 10]

On October 5, 1981, the Court invited the Solicitor General to file a brief expressing the views of the United States. In line with this invitation, the Solicitor General filed a memorandum as amicus curiae on February 12, 1982 arguing that the petition for a writ of certiorari should be denied.

The Solicitor General noted first that in his view the plaintiff had failed to allege facts which would bring the case within the reach of the False Claims Act, primarily because it did not appear that Mr. Sobsey had been barred by the Senate rules from engag. ing in campaign work. He explained:

If Sobsey's position were defined-by statute or perhaps by Senate rule or common understanding-in a way that excluded full-time participation in a political campaign, then respondents' claims for Sobsey's salary might be said to have implicitly represented that Sobsey was not working primarily on Senator Cannon's campaign and petitioner's allegation might then state a qui tam cause of action under the False Claims Act. But petitioner has not established that Sobsey's position was defined in a way that precluded extensive campaign work. Consequently, even if petitioner's factual allegations are true, the claim for Sobsey's salary was not false or fraudulent. [Memorandum for the United States as Amicus Curiae, February 12, 1982, at

5) The Solicitor General agreed with the court of appeals that the Senate, in drafting its rules, deliberately chose not to define positions like Mr. Sobsey's in a way that would exclude extensive campaign activities.

While the Solicitor General maintained that Mr. Sobsey should be

compensated only for services performed in connection with Senator Cannon's official functions and not for purely personal Fork done for the Senator, he admitted that "it is difficult to distinguish between participating in a Senator's campaign and helping him to perform such legitimate official functions as serving constituents, ascertaining their views, and gathering information from them or explaining the Senator's positions to them.(Id. at 6]

Finally, the Solicitor General concluded there were simply no standards available for a court to employ in order to separate campaign activities from official activities insofar as a staff member's duties were concerned:

If some independent standards existed for making the distinction between official activities and campaign activities, it might be possible to define the duties of a Senator's aide in a way that barred him from collecting a salary for

engaging in campaign activities. But in the absence of any
such standards, we doubt that Congress intended the
courts to construct such a definition in the course of inter-
preting the False Claims Act or the statutes governing
aides salaries. Indeed, the history of the Senate's treat-
ment of this problem suggests that the Senate did not
want an aide's role to be subject to such limitations, except
to the extent they were imposed by the individual Senator.

(Id. (footnote omitted)] The Solicitor General did indicate in a footnote, however, that while he agreed with much of the reasoning of the appeals court opinion he felt it went too far in suggesting that a prohibition against Senate aides engaging in campaign activities could never be enforced by a court. "We see no reason to conclude at this point that it is in principle impossible to distinguish between activities related to a political campaign and other, official legislative activities; it is enough that no such distinction was reflected in the definition of respondent Sobsey's position.” (Id. at 7, n. 5]

StatusThe case is pending in the U.S. Supreme Court, the petition and opposition brief having been circulated to the Justices on June 24, 1981.

The complete text of the January 30, 1981 opinion of the circuit court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981. United States v. Carney

No. 81-371-CFY (U.S. Supreme Court) On November 12, 1980, former U.S. Representative Charles J. Carney was indicted by a Federal grand jury in the U.S. District Court for the District of Columbia. (Criminal Case No. 80-00502) The indictment charged that during the period in which Rep. Carney was in Congress-from November 3, 1970 to January 3, 1979—he used Amoco gasoline credit cards, the charges on which were paid for by the Lyden Oil Company. Lyden did so, according to the indictment, "for and because of official acts performed and to be performed” by Rep. Carney, “otherwise than as provided by law for the proper discharge of his offical duty as a United States Congressman,” in violation of 18 U.S.C. § 20i(g) (the gratuity offense). 1

On November 24, 1980, Rep. Carney was arraigned and entered a plea of not guilty.

On November 25, 1980, Rep. Carney filed a motion asking the court for an order permitting him to inspect the minutes of the grand jury which returned the indictment against him on the ground that he had reason to believe that the Government had submitted to the grand jury (and it had considered) evidence which

18 U.S.C. $ 210(g) provides: Whoever, being a public official, former public official, or person selected to be a public official, otherwise than as provided by law for the proper discharge of official duty, directly or indirectly ask, demands, exacts, solicits, seeks, accepts, receives, or agrees to receive anything of value for himself for or because of any official act performed or to be performed by him shall be fined not more than $10,000 or imprisoned for not more than two years, or both.

violated the Speech or Debate Clause of the U.S. Constitution. In an accompanying memorandum, Rep. Carney argued that, under the doctrine of United States v. Helstoski, 635 F.2d 200 (3rd Cir. 1980), it was clear that the Clause "creates a substantive right in the legislator to quash an indictment if a Speech or Debate Clause violation has tainted the grand jury proceedings.". [Memorandum in Support of Defendant's Motion to Inspect Grand Jury Minutes, November 25, 1980, at 2] In this case, Rep. Carney continued, he had learned that prior to the indictment, and without his consent, Government agents had examined and copied various materials which he prepared (or were prepared at his direction) while he was a Congressman, including correspondence, files documents and various other written materials "that reveal the Defendant's legislative acts and his motivations for those acts.” (Id.) Indeed, Rep. Carney asserted, "the papers examined by the agents include precisely the same kind of evidence which required the dismissal of the indictment in United States v. Helstoski." [Id. at 2-3]

Furthermore, Rep. Carney maintained, because the treasurer of Lyden Oil Company had been subpoenaed and had been asked to produce, inter alia, documents relating to the “Petroleum Marketing Practices Act", it was reasonable to conclude that the grand jury "improperly heard evidence concerning the legislative process and the motivations for ... legislative acts.” (Id. at 3] Finally, Rep. Carney noted that his legislative aides had also been subpoenaed. Given all these factors, Rep. Carney argued that it was essential that he be able to inspect the grand jury minutes so that he could determine if a motion to dismiss the indictment on Speech or Debate Clause grounds was warranted.

On December 8, 1980, the Government filed an opposition to Rep. Carney's motion to permit inspection of the grand jury minutes. According to the Government, the inspection of Congressional records by Government agents in and of itself did not give rise to a violation of the Speech or Debate Clause. (In this case, the records were examined by FBI agents, pursuant to a grand jury subpoena, while they were in the custody of Youngstown State University.) Citing In re Grand Jury Proceedings, 563 F.2d 577, 584 (3rd Cir. 1977), the Government argued that the “privilege is not one of nondisclosure but of nonevidentiary use.” The Government insisted that in Rep. Carney's case no evidence encompassed by the Clause was in fact presented to the grand jury:

[T]he privilege is only operative in the context of evidence which is to be presented before a grand jury or during a trial. Regarding the evidence that was presented before the grand jury in this case, the Government exercised caution in insuring that evidence encompassed by the Speech or Debate Clause was not presented to the grand jury. Prior to their testimony, the Government advised grand jury witnesses of the provisions of the Clause either outside the grand jury room or on the record before the grand jury. In addition, the Government was selective in exclud

* 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)

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