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The Senate's appearance here confirms explicitly the separation-of-powers concern that has always been implied in the rule forbidding nonadversary attacks on legislation: that the Executive, by act or omission, must not be able to enlist the Judiciary to put its imprimatur on the revision of legislation. [Id. at 19-20]

Finally, the Senate contended that the case should be dismissed because the plaintiffs had failed to exhaust their administrative remedies at the FCC, and, it stated, if they had done so jurisdiction would be exclusive in the court of appeals by virtue of the statutory requirements of the Communications Act. Since no FCC final order had been issued affecting the plaintiffs pursuant to section 399(a), the Senate argued, the mandatory administrative procedures had not been utilized. Further, the Senate argued on policy grounds, "the considerable expertise of the FCC should be applied before the judiciary is asked to pass on the constitutionality of the statute." [Id. at 25]

On February 13, 1980, the plaintiffs moved to disallow the filing of the Senate's motion to dismiss on the ground that only parties, not an amicus curiae, could file such a motion. (The plaintiffs did not object to the Senate appearing as amicus curiae.) Concurrently, the plaintiffs filed a memorandum arguing that if the court agreed to entertain the Senate's motion to dismiss, it should be denied.

In response to the Senate's arguments, the plaintiffs asserted, first, that because section 399(a) violated their constitutional rights every day by "chilling" the free speech of the broadcasters and by denying listeners, including Rep. Waxman and the League of Women Voters, access to free broadcast speech, the action was a ripe case for controversy over which the court had jurisdiction. Second, the plaintiffs argued, Pacifica had "made its intentions to broadcast editorials clear" and was only prohibited from doing so by section 399(a); should it be forced to violate the statute before testing its constitutionality, it would automatically risk a "wide variety of severe criminal and civil sanctions," including possible revocation of its broadcast license. The plaintiffs claimed they were in an untenable position:

Section 399(a) does indeed present Plaintiff Pacifica and all other noncommercial broadcasters with a "Hobson's choice" between the two unacceptable alternatives. On the one hand, Pacifica can refrain from editorializing, fearing to exercise what it believes to be its First Amendment rights because of the threat of a variety of sanctions, criminal and civil. On the other hand, Pacifica can voluntarily and knowingly violate the statute by broadcasting editorials, subject itself to the sanctions, and plunge into a risky and expensive legal battle over the constitutionality of the statute. [Memorandum in Opposition to Senate's Motion to Dismiss, February 13, 1980, at 19]

Third, the plaintiffs maintained that the action was a justiciable adversary proceeding, and that the FCC, through the Department of Justice had "merely made the legal determination that the plaintiffs' claims were meritorious." [Id. at 3] Moreover, the plain

tiffs noted, the Senate would vigorously oppose the plaintiffs' claims. Finally, the plaintiffs argued, the doctrine of exhaustion of administrative remedies had no application to this case because the suit was a "facial attack on the constitutionality of section 399(a) and the FCC has no power to determine the constitutionality of a federal statute." [Id. at 24]

On February 25, 1980, the Senate filed a reply memorandum in support of its motion to dismiss, reiterating many of its prior arguments. It did, however, also include an affidavit from the FCC explaining the FCC's enforcement policies with respect to section 399(a), and "expressly and unambiguously" denying that it would seek harsh sanctions of any kind if a station editorialized or endorsed a candidate for the purpose of challenging the statute. Given this affidavit, the Senate contended that the plaintiffs could not demonstrate any hardship in proceeding by the statutorily mandated route (i.e. by exhausting their administrative remedies) rather than insisting on a determination in an "abstract, nonadverse" case.

On March 3, 1980, the Senate's motions were argued before U.S. District Court Judge Malcolm M. Lucas who granted the motion to appear as amicus curiae and allowed the filing of the motion to dismiss. The latter motion was taken under advisement and ultimately granted in an order entered on March 11, 1980. [League of Women Voters of California v. Federal Communications Commission, 489 F. Supp. 517 (C.D. Cal. 1980)]

The district court held that the case was not justiciable because it was not ripe for adjudication. Judge Lucas explained:

Because in this instance there is the distinct likelihood that the FCC will not seek to penalize a broadcaster that violates § 399(a) and because the hardship to be imposed upon the parties should the Court not now decide the constitutionality of § 399(a) is minimal, the Court finds that this case is not ripe for decision at this time.

Although the statute is challenged on its face, the Court cannot say that the particular facts of any given violation and prosecution under the statute would not color the outcome of this case. The Court finds that it would be improper to attempt to make a constitutional decision without having a concrete factual basis with which to work. That basis does not exist in this case and the Court declines to resolve the constitutional question in the abstract. [489 F. Supp. at 520]

Turning to the issue of adversariness, the court found it lacking because the parties simply did not oppose one another. "In this case, the actions of the defendant indicate that there is no geniune adversariness of interests . . . The role of the FCC in this action has been to file a statement of no opposition to plaintiffs' motion for summary judgment because defendant agrees that the statute is unconstitutional . . . In sum, the Court finds that abundant evidence indicates that all parties seek this Court to declare § 399(a) unconstitutional. Therefore, there is no case or controversy under Article III." [Id.]

Finally, the court addressed the fact that the decision not to argue in favor of the statute was made by the Executive branch, thus creating a conflict with the Legislative branch which passed the statute in the first instance. This, said Judge Lucas, "flavored" the suit with a "sub silentio prayer by the Executive branch for action by the Judicial branch that it cannot take itself." [Id. at 521] For that reason, the court stated, a particularly heavy burden fell on the plaintiff to present "concrete facts" and other jurisdictional requisites "to insure that such clashes between the two other branches are resolved as the Constitution envisions." [Id. at 520]

On April 24, 1980, the plaintiffs filed a notice of appeal to the U.S. Court of Appeals for the Ninth Circuit [No. 80-5333], and on June 2 they moved to have consideration of the appeal expedited, citing an on-going denial of First Amendment rights during an election year. On June 6, the Senate, as amicus curiae, responded, taking "no position" on the motion to expedite the appeal, but pointing out that the plaintiffs still had not averred any "upcoming specific broadcast on a specific matter at any specific time necessitating immediate resolution of this suit." In an order issued on June 10, 1980, the circuit court denied the motion for expedition without prejudice to its renewal after briefing was completed.

The issues on appeal were those considered in the lower court: whether the case presented an Article III "case or controversy" ripe for adjudication; whether there was requisite adversariness of parties; and whether the doctrine of exhaustion of administrative remedies was applicable. The briefs of the plaintiffs-appellants, filed August 5, 1980, and the Senate as amicus curiae, filed November 4, 1980, essentially reiterated the arguments made in district court. In a reply brief filed on November 19, 1980, the plaintiffsappellants took particular pains to dispute what they felt was the Senate's implication that "the executive and legislative branches of the federal government have trumped up a lawsuit to gain improper access to the judicial branch." [Appellants' Reply Brief, November 19, 1980, at 2] The plaintiffs claimed to have been "shocked" to learn that the Justice Department and FCC would not contest the suit, and noted that the decision was "totally outside the[ir] control or knowledge" and should not be allowed to prejudice plaintiffs' ability to assert their constitutional rights. [Id. at 18-19]

On December 12, 1980, the plaintiffs-appellants renewed their motion to expedite the appeal, which was granted by the court in an order filed December 24.

On April 9, 1981, the defendant-appellee FCC, through the Justice Department, filed a motion to vacate the judgment and opinion of the district court and to remand the case to the lower court for reconsideration. Noting that "the Attorney General has this week decided that the government should change its position in this case, and that change in position . . . significantly alters the nature of the issues presented," the FCC argued that reconsideration was more appropriate than the circuit court's deciding the appeal as presently briefed. [Motion to Vacate and Remand, April 9, 1981, at 1] The FCC advised the appeals court that the new Attorney General had now directed the Government to defend the constitutionality of section 399(a), thus mooting the issue of whether the case remained adverse when the Justice Department origi

nally refused to defend the constitutionality of the statute. On the ripeness question, the FCC, while admitting that it was not mooted, contended that the new development "significantly affects the context and analysis necessary for proper evaluation of this issue" since the original decision not to defend the statute "may have colored the district court's reasoning, particularly when considering the hardship in waiting until after a violation of the statute before allowing judicial consideration of its constitutionality." [Id. at 3]

On April 10, 1981, a panel of the Court of Appeals for the Ninth Circuit ordered the case remanded to the district court for a period of 56 days and suggested that the lower court vacate the judgment and, within the time of the remand, enter a new judgment. The panel cited the change in position of the Justice Department for its order.

On April 23, 1981, District Court Judge Lucas asked the appellate court to extend the period of remand to June 22 to accommodate his calendar. A similar request had been made by the plaintiffs in a motion for clarification and modification filed with the circuit court a week earlier. On April 30, the appeals court granted Judge Lucas' request, and allowed him to further extend the remand period himself if his new jurisdictional ruling necessitated more time for trial. In that event, the court suggested that the plaintiff-appellants might wish to dismiss the pending appeal without prejudice.

Meanwhile, in the district court, both the plaintiffs and the defendant FCC filed status reports on April 16 proposing a briefing schedule which would permit the FCC, the plaintiffs, and the Senate amicus to file briefs on the jurisdictional issues-ripeness and adversariness-and the court to hear and decide the issues prior to the end of the remand period. (Since the Justice Department, on behalf of the FCC, had essentially removed itself from the case in January 1980, the defendants had never briefed these issues; only the Senate amicus and the plaintiffs had done so.)

On May 19, 1981, the defendant FCC filed its memorandum regarding jurisdiction in the district court. It argued that the decision of the Attorney General to defend section 399(a) affected both bases for the court's earlier dismissal of the case for lack of adversary parties and ripeness, and conferred jurisdiction on the district court. Not only did the decision moot the question of adversariness, the FCC maintained, but it also changed the context for determining whether the case was ripe for adjudication:

The Court's earlier determination-that the value of a concrete factual basis for a constitutional decision was not outweighed by the harm to the parties in postponing a decision was reached in the context of defendant's refusal to defend the constitutionality of the statute. That refusal to defend, coupled with the affidavit of a responsible member of defendant's staff as to his hypothetical recommendation in the event of violation of the statute, suggested that the harm to plaintiffs in requiring that the constitutionality of the statute be determined in the context of an actual violation would be minimal. The Attorney General's decision to defend the statute's constitutionality,

while conceivably not altering the recommendations that
might be made to defendant by defendant's Broadcast
Bureau Chief, may increase the risk of adverse action by
defendant should plaintiff Pacifica implement its an-
nounced intention to editorialize in violation of the stat-
ute. [Defendant's Memorandum on Remand from Court of
Appeals Re Jurisdiction, May 19, 1981, at 4-5]

Furthermore, the FCC asserted, in addition to administrative sanctions plaintiff Pacifica also would potentially be subject to criminal liability for violating section 399(a). Pacifica should not be required to face the possibility of both administrative and penal sanctions brought on by the Attorney General's decision before challenging the statute, the FCC concluded.

On May 29, 1981, the plaintiffs filed their memorandum regarding the jurisdictional issues. With respect to adversity of the parties, the plaintiffs agreed with the FCC that the decision of the Justice Department to defend the statute rendered the claim moot. With respect to ripeness, the plaintiffs essentially reiterated the arguments made previously in their February 13, 1980 opposition to the Senate's motion to dismiss. (See pages 395-96, supra for a discussion of the plaintiffs' earlier opposition.) In sum, the plaintiffs argued that: (1) they did not have to violate a statute to challenge its constitutionality; the controversy was ripe because their rights were presently being injured by the statute's operation; (2) Pacifica would broadcast editorials if it were not prohibited from doing so by section 399(a); and (3) plaintiffs Waxman and the League of Women Voters, as listeners and viewers of noncommercial broadcasting stations, had no other available means to challenge the constitutionality of section 399(a).

Also on May 29, 1981, the Senate filed a motion to withdraw from the case as amicus curiae in light of the Executive branch's decision to defend the case. After reviewing the reasons for the Senate's original participation the accompanying memorandum concluded:

The Senate's primary concern in appearing as amicus curiae in this case was to affirm the principle that the Executive Branch cannot deny the validity of Acts of Congress. This Court's ruling and the reconsidered action of the Department of Justice have reaffirmed that principle with renewed vigor. Now that the Department will defend the statute, the ordinary principles of separation of powers, absent special circumstances not present here, call for the Senate to leave that defense to the Executive, whose function it is to enforce and defend the laws. [Memorandum of Senate in Support of Motion to Withdraw, May 29, 1981, at 4]

On June 8, 1981, Judge Lucas heard arguments on the question of jurisdiction and took the matter under advisement. He granted the motion of the Senate to withdraw from the case.

On June 18, 1981, Judge Lucas issued an order vacating his March 11, 1980 order dismissing the action. He found that there were now adverse parties to the case since the Justice Department

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