FOURTH CAUSE OF ACTION

25. Defendant Shultz's action in issuing warrants for the disbursement of moneys from the U.S. Treasury to pay the cost of mass mailed newsletters and news releases over the frank of members of Congress is: (a) an abuse of discretion in violation of 5 U.S.C. 706; and (b) an unlawful interpretation of his statutory duties in that it violates Defendant Shultz's duty under 31 U.S.C. 1002 to only issue warrants for moneys to be issued from the Treasury in pursuance of appropriations by law.

IRREPARABLE INJURY

26. As a direct consequence of defendants' unlawful actions, plaintiffs will continue to suffer an immediate and irreparable injury in the following respects:

(a) The ability of plaintiff Common Cause and its members to achieve its purpose and to protect the interests set forth in paragraph 4 of this Complaint has been and will be impaired by the violations of law charged in this Complaint. The ability of its members to patricipate in the Federal electoral process as candidates, campaign workers, contributors of lawful amounts to candidates and political committees, voters, and frequent users of the mails as a concomitant to the foreoging activities, is substantially threatened and diminished by these violations.

(b) Plaintiff John W. Gardner, individually and as a representative of the members of Common Cause, has suffered and will continue to suffer a direct injury as a citizen, voter, taxpayer, as a participant in the Federal electoral process, as a contributor of lawful amounts to political committees whose purpose is to influence the election of candidates for elective Federal office, and as a frequent user of the mails as a concomitant to the foregoing activities, as a direct consequence of the aforesaid violations.

(c) Plaintiffs Common Cause and John W. Gardner, individually and as representatives of the members of Common Cause, have suffered and will continue to suffer a direct injury to their statutory right to postal service that is provided on a fair and equitable, nondiscriminatory, and nonpreferential basis, as a direct consequence of the aforesaid violations.

PRAYER FOR RELIEF

Plaintiffs respectfully request that this Court:

27. Declare that 39 U.S.C. § 3210 confers a privilege upon the Vice President, members and members-elect of Congress, the Secretary of the Senate, Sergeant at Arms of the Senate, Clerk of the House of Representatives, to the postagefree use of the mails only for official business, which includes its use to mass mail only those items described in 39 U.S.C. §§ 3211-3213, and not to mass mail newsletters and news releases.

28. Declare that Defendant Klassen's action in continuing to refuse to inspect franked mail for evidence of abuse of the frank, and in continuing to honor the frank for mass mailed newsletters and news releases, after members of Congress have announced their candidacy for nomination or election, or after funds have begun to be raised to finance their candidacy or after they have qualified as candidates for nomination or election, and Defendant Shultz's issuance of warrants for the disbursements of moneys from the U.S. Treasury for said franked mail:

(a) abridge the First Amendment rights of plaintiffs and the class they represent freely to associate for the purposes of advancing political beliefs and supporting political parties and candidates for Federal elective office, by conferring a substantial political benefit upon members of Congress who are candidates for Federal elective office, while not conferring said benefits upon candidates for said offices who are not members of Congress during the course of the campaign:

(b) deny the Fifth Amendment rights of plaintiffs and the class they represent to due process of law by invidiously discriminating in favor of members of Congress who are candidates for elective Federal office by conferring a substantial political benefit unon said members of Congress, while not conferring said benefits upon candidates who are not currently members of Congress:

(c) constitute an unlawful appropriation of public moneys for a nonpublic purpose, in violation of the General Welfare Clause of Article I, Section 8 of

the Constitution, by conferring a substantial political benefit upon members of Congress who are candidates for elective Federal office, while not conferring said benefits upon candidates who are not currently members of Congress;

(d) constitute a violation of Defendant Klassen's statutory duty not to make any undue or unreasonable discrimination among users of the mails.

(e) constitute an unlawful disbursement of public moneys in violation of Defendant Shultz's statutory duties under 31 U.S.C. § 1002.

29. Declare that Defendant Klassen's action in continuing to refuse to inspect franked mail for evidence of abuse of the frank, and in continuing to honor the frank for mail matter not exclusively related to the performance of official Federal legislative and representative functions--including mail matter (a) the printing of which is paid for with political campaign contributions, (b) which specifically endorses or solicits political support for the sender or other persons and political parties, (c) which refers to, or which makes a promise or states a policy with respect to, any subject, problem, or thing which the sender expects to do, accomplish, or take action regarding, in a future Congress, (d) which is mailed into an area outside of the district from which the member of Congress or the state from which the Senator was elected. (e) which reports on how or when the sender, or the spouse or any member of the family of the sender, spends time other than in the performance of, or in connection with the legislative or representative functions of the sender, or (f) which constitutes or includes a biography or autobiography, a picture, sketch or other likeness, holiday or seasons' greetings, or condolences or congratulations, of a member of Congress, or of the spouse or other members of the sender's family, and is not mailed in response to one or more specific requests therefor by any organization or individual-and Defendant Shultz's issuance of warrants for disbursement of moneys from the U.S. Treasury for said franked mail:

(a) abridge the First Amendment rights of plaintiffs and the class they represent freely to associate for the purposes of advancing political beliefs and supporting political parties and candidates for Federal elective office, by conferring a substantial political benefit upon members of Congress who intend to be candidates for Federal elective office, while not conferring said benefits upon those who intend to be candidates for said offices who are not currently members of Congress;

(b) deny the Fifth Amendment rights of plaintiffs and the class they represent to due process of law by invidiously discriminating in favor of members of Congress who intend to be candidates for elective Federal office by conferring a substantial political benefit upon said members of Congress, while not conferring said benefits upon those who intend to be candidates for said offices who are not currently members of Congress;

(c) constitute an unlawful appropriation of public moneys for a nonpublic purpose, in violation of the General Welfare Clause of Article I, Section 8 of the Constitution, by conferring a substantial political benefit upon members of Congress who intend to be candidates for elective office, while not conferring said benefits upon those who intend to be candidates for said offices who are not currently members of Congress;

(d) constitute a violation of Defendant Klassen's statutory duty under 39 U.S.C. § 403 not to make any undue or unreasonable discrimination among users of the mails.

(e) constitute an unlawful disbursement of public moneys in violation of Defendant Shultz's statutory duties under 31 U.S.C. 1002.

31. Declare that Defendant Klassen's action in continuing to refuse to inspect franked mail for evidence of abuse of the frank, and in continuing to honor the frank for mass mailed newsletters and news releases is:

(a) an abuse of discretion in violation of 5 U.S.C. 706; and

(b) an unlawful interpretation of his statutory duties in that it violates Defendant Klassen's duties to "apportion the costs of all postal operations to all users of the mail on a fair and equitable basis, 39 U.S.C. § 101. not to make "any undue or unreasonable discrimination among users of the mails," 39 U.S.C. 403. and not to grant "any undue or unreasonable preferences to any such user" of the mails, id.

32. Declare the Defendant Shultz's action in issuing warrants for the disbursement of moneys from the U.S. Treasury to pay the costs of mass mailed newsletters and news releases over the frank of members of Congress is: (a) an abuse of discretion in violation of 5 U.S.C. 706; and

(b) an unlawful interpretation of his statutory duties in that it violates Defendant Shultz's duty under 31 U.S.C. 1002 to only issue warrants for moneys to be issued from the Treasury in pursuance of appropriations by law.

33. Issue preliminary and permanent injunctions enjoining the enforcement, operation, or execution of Title 39 of the United States Code, and particularly Sections 3210-3216 thereof, in such a manner as may infringe upon the rights of plaintiffs and the class they represent under Article I, Section 8 of the Constitution, under the First and Fifth Amendments to the Constitution, and under Title 39 of the United States Code, as revised and reenacted by the Postal Reorganization Act of 1970, Public Law 91-375, 84 Stat. 719.

34. Issue preliminary and permanent injunctions compelling Defendant Klassen, his agents, employees and all others in active concert with him to (1) inspect pursuant to 39 U.S.C. § 603, all materials which those persons described in 39 U.S.C. § 3210 attempt to mail under the franking privilege; and (2) to refuse to honor the frank for mass mailed newsletters and news releases by those entitled to frank mail pursuant to 39 U.S.C. 3210.

35. Issue preliminary and permanent injunctions compelling Defendant Shultz to cease authorizing the disbursement of funds, pursuant to 31 U.S.C. § 1002, for the payment of the costs of mass mailed newsletters and news releases by those entitled to frank mail pursuant to 39 U.S.C. 3210.

36. Grant plaintiffs such other and further relief as the Court may deem appropriate.

Respectfully submitted,

Exhibit 2

KENNETH J. GUIDO, Jr.

COMPLAINT IN MCSURELY v. MCCLELLAND (MARCH 1969)

United States District Court
For the District of Columbia

(Civil Action No. 516-69)

VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES

Plaintiffs, for their verified complaint, allege as follows:

A. Plaintiffs

I. PARTIES

1. Plaintiffs Alan McSurely and Margaret McSurely, husband and wife, hereinafter sometimes referred to as the individual plaintiffs, are citizens of the United States and of the Commonwealth of Kentucky. They are staff representatives employed by plaintiff Southern Conference Educational Fund, Inc., (SCEF). In addition, plaintiff Alan McSurely was, until sometime in the fall of 1967, a field organizer for The National Conference For New Politics, and a distributor of literature for Vietnam Summer, and was at one time, employed by the United Planning Organization and the Appalachian Volunteers. At all times hereinafter set forth, said plaintiffs were engaged in attempting to organize the poor and oppressed citizens, both black and white, in the coalproducing counties of Eastern Kentucky, West Virginia and Virginia, in an effort to help these citizens improve their social, political and economic conditions.

2. Plaintiff Southern Conference Educational Fund, Inc. (SCEF) is a nonprofit corporation organized under the laws of the State of Tennessee, domesticated and maintaining an office for business purposes in the Commonwealth of Kentucky, whose purpose it is to help to secure to black and white American citizens in the southern part of the United States rights guaranteed to them under the Constitution of the United States, and to end all forms of racial and economic segregation, discrimination and injustice in the interests of both the black and white citizens thereof.

3. Plaintiff Southern Student Organizing Committee (SSOC) is an unincorporated association of young, concerned southern college and university students dedicated to social change through the exercise of protected First Amendment rights in order to achieve a more representative democratic society. Its princi. pal office is in Nashville, Tennessee.

4. Plaintiff Student Nonviolent Coordinating Committee (SNCC) is an unincorporated association maintaining an office for business purposes in Atlanta, Georgia, and whose purpose it is to help to secure to all black citizens the rights guaranteed to them under the Constitution of the United States, and to end all forms of racial segregation and discrimination in the interest of black and white citizens throughout the United States.

5. Plaintiff Students For A Democratic Society (SDS) is an unincorporated association of students organized nationally for the purpose of bringing about fundamental changes in the democratic institutions of American society by social and political action through the exercise of protected First Amendment rights. Its principal headquarters is in Chicago, Illinois, and it has local chapters on campuses of high schools, colleges and universities throughout the nation.

6. All plaintiffs sue on behalf of themselves and all others similarly situated, and, in the case of the organizational plaintiffs, on behalf of their staff, members, friends and supporters, all said classes being too numerous to bring before the court.

B. Defendants

7. Defendant John M. McClellan is a citizen of the United States and the State of Arkansas, and Chairman of the Permanent Subcommittee on Investigations of the United States Senate Committee on Government Operations, hereinafter sometimes referred to as the Subcommittee.

8. Defendants Henry M. Jackson, Sam J. Ervin, Jr., Edmund M. Muskie, Abraham Ribicoff, Robert P. Griffin, Karl E. Mundt, Charles A. Percy and Jacob K. Javits are citizens of the United States and of the States of Washington, North Carolina, Maine, Connecticut, Michigan, South Dakota, Illinois and New York, respectively, and are majority and minority members of the said Subcommittee.

9. Defendants Jerome S. Adlerman and Donald F. O'Donnell, upon information and belief, citizens of the United States and of the District of Columbia, are General Counsel and Chief Counsel respectively of the said Subcommittee. 10. All defendants are sued individually and in their official capacities.

II. JURISDICTION

11. The jurisdiction of the Court arises under 28 U.S.C. §§ 1331, 1332, 1334 (3) and (4), 2201, 2202; 42 U.S.C. 1981 et seq., and under the Constitution of the United States, and in particular, under the First, Fourth, Fifth, Thirteenth, Fourteenth and Fifteenth Amendments thereto.

III. CAUSES OF ACTION

12. The counties in Eastern Kentucky, where the individual plaintiffs live and work, have an estimated 35 billion tons of coal under their rocky, mountainous surface, of which only two billion have been mined in the past 75 years. Yet ten of the twenty poorest counties in the Nation are located in said area. Pike County, the largest coal-producing county in this country, is among them. In 1967, 18,267,200 tons of coal were mined in said Pike County alone. Coal brings from $3 to $15 a ton-depending on the grade-so even at the lowest rate, $55 million worth of coal was taken from Pike County during that year. Pike County has 3500 coal miners who are not members of the United Mine Workers of America (UMW). Although Pikeville, the county seat, has a population of less than 6,000 it has more than 40 attorneys and is the headquarters of the National Independent Coal Operator's Association, Incorporated (NICOA) an association organized by one Thomas Ratliff to represent the interests of all the non-union mine owners in the area.

13. Plaintiffs, or some of them. have, for some time, publicly opposed the NICOA and certain Pike County officials. The individual plaintiffs have called for an "overthrow of the local Court House Gang" in the county elections next November, and for the election of a slate of people's candidates who would tax the coal leaving the county at a high rate, with the resulting money being used to build good homes, hospitals, schools and roads with locally hired labor. Said plaintiffs have also publicly called for the poor people to "join hands" with the working people of Pike County in fighting their common enemy, the coal operators.

14. On the afternoon of August 11, 1967, Thomas Ratliff, the Commonwealth Attorney for Pike County, who has or once had major coal mining interests,

met with Robert Holcomb, president of the Pike County Chamber of Commerce and the NICOA, the sheriff of Pike County, several members of the Fiscal Court thereof and others. At this meeting, plans were formulated for the arrest of the individual plaintiffs and one Joseph Mulloy, (then an organizer for the Appalachian Volunteers, a private, non-profit corporation dedicated to furnishing assistance to the poor people of Eastern Kentucky, West Virginia and Virginia in order to improve their economic conditions), and the seizure of their books, documents and other records. Later that same afternoon, closed hearings were held in the Pike County Court House, as a result of which arrest and search warrants were issued with respect to plaintiff Alan McSurely and Joseph Mulloy. At all times on August 11, 1967, and prior thereto, defendants knew that the statute on which said warrants were based, viz. KRS 432.040, had been previously declared preempted by federal legislation by the Supreme Court of Appeals of the Commonwealth of Kentucky in Braden v. Commonwealth, 219 S.W. 2d 843.

15. Late on the evening of August 11, 1967, a raiding party of about fourteen men, led by said Thomas Ratliff invaded the home of the individual plaintiffs in Pikeville, Kentucky. When Ratliff discovered that plaintiff Margaret McSurely had once worked for plaintiff SNCC, he ordered a member of the raiding party to prepare an arrest warrant for her. After over two hours of rifling through personal belongings of the individual plaintiffs, the raiders transported them to the county jail. The same scene was repeated around one a.m. at the home of Joseph Mulloy. The raids are best described by Circuit Judge Bert Combs in an opinion later invalidating KRS 432.040:

"On the night of August 11, 1967, under authority of warrants charging seditious activity against the United States and the Commonwealth of Kentucky in violation of KRS 432.040, officials of Pike County and their deputies arrested the McSurelys and Mulloy. The officials also seized and impounded 564 loose books, pamphlets and other private and published documents found in the McSurely's home. They also impounded a suitcase of clothes and several personal items which were caught up in the whirlwind of the search." 282 F.Supp. 848, 850.

16. On August 16, a plenary federal action was instituted by individual plaintiffs, SCEF, the National Conference for New Politics, and Vietnam Summer (organizations then employing Alan McSurely), seeking an injunction restraining the enforcement of the overly broad and unconstitutional anti-sedition statute and seeking the return of the seized documents and records. Joseph Mulloy filed an intervening complaint likewise seeking an injunction against the prosecution.

On August 17, a three-judge federal District Court was duly convened to hear and determine the complaint. On September 14 the three-judge court issued a permanent injunction under the authority of Dombrowski v. Pfister, 380 U.S. 479 (1965) restraining the enforcement of the state statute and the pending state criminal proceedings thereunder. It did not, however, give final relief as to the documents which had been seized under the statute. It ordered instead that the documents and other seized material be kept in the custody of the Commonwealth Attorney, Pike County, Kentucky, pending a possible appeal by the defendants-appellees. No appeal was filed from the foregoing ruling of the United States District Court.

17. On October 16, before the expiration of the time for appeal from the order of September 14, the Commonwealth Attorney for Pike County, holding the documents aforesaid by order of the District Court, was served with a forthwith subpoena duces tecum from the Subcommittee to produce certain documents, materials and information broadly relating to the individual plaintiffs and to membership and activities of more than thirteen civil rights and related organizations, some of which was claimed to be in the illegally seized materials. Identical subpoenas were also served upon the United States Marshal and the individual plaintiffs.

18. Plaintiffs, or some of them, on October 18, 1967, filed motions seeking the issuance of a temporary restraining order enjoining the release of the books, papers, documents, and other materials, pursuant to the aforesaid subpoena, and also a motion for an order directing the return to the individual plaintiffs of said books, papers, documents and other materials. The United States at this point moved for leave to appear amicus curiae and filed a memorandum in opposition to the said motion.