Coalition to End the Permanent Congress v. Marvin T. Runyon, Donald K. Anderson

D.C. Circuit

Coalition to End the Permanent Congress v. Marvin T. Runyon, Donald K. Anderson

979 F.2d 219, 298 U.S. App. D.C. 280, 1992 U.S. App. LEXIS 29835, 1992 WL 328646

CourtCourt of Appeals for the D.C. Circuit

DecidedNovember 13, 1992

Docket92-5239

StatusPublished

Cited by10 cases

This text of 979 F.2d 219 (Coalition to End the Permanent Congress v. Marvin T. Runyon, Donald K. Anderson) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Coalition to End the Permanent Congress v. Marvin T. Runyon, Donald K. Anderson, 979 F.2d 219, 298 U.S. App. D.C. 280, 1992 U.S. App. LEXIS 29835, 1992 WL 328646 (D.C. Cir. 1992).

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Opinions

Statement for the court filed Per Curiam.

Separate statement dissenting from the per curiam disposition filed by Circuit Judge SILBERMAN.

Separate opinion on the merits filed by Circuit Judge SILBERMAN.

PER CURIAM:

This case came before the court on an expedited appeal. On July 30, 1992, after briefing and oral argument, the court issued a judgment, joined by Judges Silber-man and Randolph, with Judge Wald dissenting, declaring 39 U.S.C. § 3210(d)(1)(B) unconstitutional in violation of the First and Fifth Amendments to the Constitution. This provision, then part of the congressional franking statute, permitted incumbents to send free mass mailings to persons in areas added to their districts by redistricting. Accompanying the court’s judgment were brief opinions by each member of the panel. The judgment contained a notation indicating that neither it nor the accompanying opinions were to be published. The judgment also stated that “Expanded opinions will issue at a later date.”

Since the entry of the judgment, there has been a development — of which we take judicial notice — rendering it imprudent for [220]*220us to issue expanded opinions. On October 6, 1992, before the time for filing a petition for a writ of certiorari in the Supreme Court had expired, Congress repealed 39 U.S.C. § 3210(d)(1)(B). Pub.L.' No. 102-392, § 309, 106 Stat. 1703 (1992). Our judgment therefore can have no future effect. If a petition for a writ of certiorari had been filed and granted, the long-settled practice of the Supreme Court would have resulted in an order vacating our judgment and remanding the case for dismissal on the ground of mootness. See United States v. Munsingwear, Inc., 340 U.S. 36, 39-40, 71 S.Ct. 104, 106-07, 95 L.Ed. 36 (1950); Bowen v. Kizer, 485 U.S. 386, 108 S.Ct. 1200, 99 L.Ed.2d 402 (1988) (per curiam); American Library Ass’n v. Barr, 956 F.2d 1178 (D.C.Cir.1992).

If we published full opinions now, after the time for filing a certiorari petition has expired, we would be making pronouncements about the constitutionality of a repealed provision in a moot case with no possibility of Supreme. Court, review. To the extent that the opinions of at least two members of the panel agreed on any point, we would also be creating circuit precedent regarding questions of constitutional law. It is true that full exposition in written opinions guards against judicial decision-making by whim. But several of the reasons behind the mootness doctrine and the bar against rendering advisory opinions— “concern[ ] with the need to avoid unnecessary judicial lawmaking, and the fear that courts may be more prone to improvident decision when nothing immediate seems to be at stake” (13A C. Wright, A. Miller & E. Cooper, Federal PRACTICE and Prooedure § 3533.1, at 218 (1984)) — counsel strongly in favor of restraint.

Technically the case is not now before us. The only thing we have “jurisdiction” to do, because we reserved this in our judgment, is to expound further. Prudence leads us to refrain. As matters now stand, Local Rule 11(c) precludes citing as precedent either our judgment or the summary opinions accompanying it. In light of the statute’s repeal, this is where matters should remain.

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Statement for the court filed Per Curiam.

Separate statement dissenting from the per curiam disposition filed by Circuit Judge SILBERMAN.

Separate opinion on the merits filed by Circuit Judge SILBERMAN.

PER CURIAM:

This case came before the court on an expedited appeal. On July 30, 1992, after briefing and oral argument, the court issued a judgment, joined by Judges Silber-man and Randolph, with Judge Wald dissenting, declaring 39 U.S.C. § 3210(d)(1)(B) unconstitutional in violation of the First and Fifth Amendments to the Constitution. This provision, then part of the congressional franking statute, permitted incumbents to send free mass mailings to persons in areas added to their districts by redistricting. Accompanying the court’s judgment were brief opinions by each member of the panel. The judgment contained a notation indicating that neither it nor the accompanying opinions were to be published. The judgment also stated that “Expanded opinions will issue at a later date.”

Since the entry of the judgment, there has been a development — of which we take judicial notice — rendering it imprudent for [220]*220us to issue expanded opinions. On October 6, 1992, before the time for filing a petition for a writ of certiorari in the Supreme Court had expired, Congress repealed 39 U.S.C. § 3210(d)(1)(B). Pub.L.' No. 102-392, § 309, 106 Stat. 1703 (1992). Our judgment therefore can have no future effect. If a petition for a writ of certiorari had been filed and granted, the long-settled practice of the Supreme Court would have resulted in an order vacating our judgment and remanding the case for dismissal on the ground of mootness. See United States v. Munsingwear, Inc., 340 U.S. 36, 39-40, 71 S.Ct. 104, 106-07, 95 L.Ed. 36 (1950); Bowen v. Kizer, 485 U.S. 386, 108 S.Ct. 1200, 99 L.Ed.2d 402 (1988) (per curiam); American Library Ass’n v. Barr, 956 F.2d 1178 (D.C.Cir.1992).

If we published full opinions now, after the time for filing a certiorari petition has expired, we would be making pronouncements about the constitutionality of a repealed provision in a moot case with no possibility of Supreme. Court, review. To the extent that the opinions of at least two members of the panel agreed on any point, we would also be creating circuit precedent regarding questions of constitutional law. It is true that full exposition in written opinions guards against judicial decision-making by whim. But several of the reasons behind the mootness doctrine and the bar against rendering advisory opinions— “concern[ ] with the need to avoid unnecessary judicial lawmaking, and the fear that courts may be more prone to improvident decision when nothing immediate seems to be at stake” (13A C. Wright, A. Miller & E. Cooper, Federal PRACTICE and Prooedure § 3533.1, at 218 (1984)) — counsel strongly in favor of restraint.

Technically the case is not now before us. The only thing we have “jurisdiction” to do, because we reserved this in our judgment, is to expound further. Prudence leads us to refrain. As matters now stand, Local Rule 11(c) precludes citing as precedent either our judgment or the summary opinions accompanying it. In light of the statute’s repeal, this is where matters should remain.

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979 F.2d 219, 298 U.S. App. D.C. 280, 1992 U.S. App. LEXIS 29835, 1992 WL 328646, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coalition-to-end-the-permanent-congress-v-marvin-t-runyon-donald-k-cadc-1992.

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