The opinion of the court was delivered by: GARTH
Plaintiff Alfred Schiaffo, presently a State Senator of New Jersey and the challenger in the current election scheduled for November 7, 1972, for the seat currently held by the defendant as representative of the Ninth Congressional District, filed his complaint against defendant on September 26, 1972.
The complaint addresses itself essentially to various types of franked mailings and activities on the part of defendant sought to be enjoined by the plaintiff as in violation of the Congressional franking privilege and the Constitution. A temporary restraining order sought by the plaintiff was denied by the court by reason of disputed matters of fact and law, and within four days hearings were commenced respecting the issuance of a preliminary injunction. Both parties then agreed that the hearings when concluded would suffice as and constitute the final hearings for permanent relief. Issue as to additional materials brought to the court's attention during these hearings -- which materials defendant either had mailed or intended to mail -- was deemed by the Court to have been raised by the pleadings.
Final argument was heard on October 10, 1972, at which time a permanent injunction was issued effective immediately against the distribution of certain materials under defendant's frank. This written opinion incorporates the substance of an oral opinion delivered from the bench on October 10.
1. Defendant, a Democrat, has served eight years in the Congress, is in his fourth term, commenced his first term in February 1965, and is running for election to the newly reapportioned Ninth Congressional District. Plaintiff, a Republican, is presently a State Senator in the New Jersey State Senate and is his party's candidate for the defendant's Congressional seat in the November 1972 election.
2. The Ninth District consists presently of the following municipalities in Bergen County:
NINTH DISTRICT -- Bergen County: That portion embracing the boroughs of Alpine, Bergenfield, Bogota, Carlstadt, Cliffside Park, Closter, Cresskill, Demarest, Dumont, East Rutherford, Edgewater, Englewood Cliffs, Fairview, Fort Lee, Haworth, Leonia, Montvale, Moonachie, New Milford, North Arlington, Northvale, Norwood, Old Tappan, Palisades Park, Ridgefield, Rockleigh, Rutherford, Tenafly, Teterboro, Wallington and Wood-Ridge, City of Englewood and Townships of Lyndhurst, Ridgefield Park, Rivervale, and Teaneck. Population (1960), 390,134; estimated to July 1969, 510,000.
Congressional Directory 108, 92d Cong., 2d Sess. (population figures). For ease in reference throughout this opinion, I shall refer to the aforesaid District as Area A.
3. On April 26, 1972, the United States District Court for the District of New Jersey, in the case of David v. Cahill, 342 F. Supp. 463 (D.N.J.1972), (three-judge court), ordered that Governor William T. Cahill and all election officials of the State of New Jersey "shall conduct the primary election on June 6, 1972 to choose candidates for membership in the House of Representatives from New Jersey, and the general election on November 7, 1972 for membership in the House of Representatives," from districts thereafter designated. The decree resulted in a redistricting of the Ninth District as well as other Congressional Districts.
and the following municipalities will now be included in the new Ninth District:
Bergen County: Harrington Park
Portion of South Hackensack
The additional towns to be included in the Ninth Congressional District will be referred to as Area B.
5. With respect to the particular mailings and publications brought into issue by the complaint and hearings, I will refer to four different groups:
A. The Yearbook of Agriculture 1963
On or about June 16, 1972, after the primary election, approximately 280 copies of a Department of Agriculture Publication which is also a House Document entitled "The Yearbook of Agriculture 1963 -- A Place to Live" was mailed under defendant's franking privilege to specifically addressed public officials in Areas A and B. Enclosed between the cover and the first page of each Yearbook was a brief "cover" letter explaining the purpose of the book and identifying its sender as the defendant. With the exception of three or four requests, the mailing of these 280 books was unsolicited.
Defendant intends to continue distribution of various editions of this publication under his frank.
B. The Capitol Symbol of Freedom
On or about August 23, 1972, defendant mailed unsolicited and under his frank to Republican County Committee people in Areas A and B approximately 500 copies of the 1961 edition or some other edition of a magazine entitled "The Capitol Symbol of Freedom," a House Document printed by order of Congress. Defendant had made similar mailings of this magazine for the past eight years. These magazines were sent only to Republicans in 1972 because (1) the defendant had previously mailed similar publications to Democratic County Committee people, and (2) the defendant had copies of the magazine left over in his office.
Defendant's office stamped these magazines "Best Wishes Henry Helstoski, Congressman New Jersey Ninth District" and enclosed with them a "cover" letter explaining the purpose of the distribution as well as inviting the recipients of the magazine to call upon the defendant at any time they had need of other federal publications made available to him for distribution.
Defendant intends to continue mailing these publications in various editions as before.
C. Consumer Product Information Index
Some time in July or August 1972, defendant received an allotment of 50,000 copies of a publication entitled "Consumer Product Information" from the Consumer Product Information Coordinating Center of the General Services Administration (GSA). Printed by the GSA, this publication is an index of pamphlets available from the Consumer Product Information Coordinating Center.
The front cover of the Index as received from the GSA was blank, and the address side (the back cover) was also blank except for the words "Consumer Product Information -- an index of selected Federal Publications on how to buy, use and take care of consumer products." On certain copies of the GSA publication defendant had printed at his own expense and by his own printer on the front cover a "Dear Friends" letter reproducing his letterhead, and on the address side, the legend "Congress of the United States, House of Representatives, Official Business, Henry Helstoski m.c., Postal Patron -- Local 9th Congressional District, New Jersey". As to the rest of the 50,000 GSA publications, defendant had the front cover of the brochure stamped with the legend "Compliments of your Congressman Henry Helstoski 9th District, New Jersey" and enclosed the pamphlet in a brown envelope marked "public document" bearing his frank.
On or about September 1, 1972, defendant began an unsolicited mass mailing under his frank of these 50,000 copies to Postal Patrons in Areas A and B, and as of September 29, 1972, the 50,000 allotment had already been distributed.
A. Consumer Product Information Index Reprints
In addition to the allotted 50,000 GSA indexes already distributed, defendant has printed or is in the process of printing 156,000 additional copies of "Consumer Product Information" at his own expense, which copies of the index are to be mailed unsolicited under defendant's frank as Postal Patron mail to Areas A and B. These additional 156,000 copies of "Consumer Product Information" have not been provided to defendant by any official allotment either from the Executive or the Congress nor has their printing been in any way officially authorized.
On or about September 13, 1972, defendant sent unsolicited in a mass mailing as Postal Patron mail under his frank 206,000 newsletters entitled "Washington Report" to Areas A and B. These newsletters were addressed to "Postal Patron Local, 9th Congressional District, New Jersey," and the envelopes in which they were distributed were stamped "Public Document, Official Business." Other copies of the newsletter have been sent to specific addressees outside Areas A and B.
The "Washington Report" was prepared some time prior to August 29, 1972 at defendant's own expense. Its publication was not authorized by order or resolution of Congress. Various editions of the "Washington Report" have been distributed on a regular and unsolicited basis to defendant's constituents.
Defendant intends to continue sending to Postal Patrons in Areas A and B copies of the "Washington Report" on an unsolicited basis.
C. February or March Questionnaire
From February through March 1972 the defendant mailed his annual legislative questionnaire to each Postal Patron in Areas A and B on an unsolicited basis under his frank. The questionnaire had been printed at defendant's own expense and not by any official Congressional or Executive authorization.
D. Young Voter Questionnaire
In or about August 1972 defendant mailed under his frank to 15,000 specifically addressed young voters and/or graduating students in Areas A and B a "Young Voter Opinion Survey." This questionnaire was printed at defendant's own expense and was unsolicited.
A. Results of February or March Questionnaire
Shortly after June 28, 1972, the defendant mailed unsolicited to Postal Patrons in Areas A and B under his frank 206,000 copies of the results of the February or March questionnaire. These results had been printed in the Congressional Record of Wednesday, June 28, 1972, and reprinted for distribution at defendant's own expense.
B. Declaration of Independence
Defendant intends to mail unsolicited under his frank 5,000 copies of the Declaration of Independence prepared on parchment for framing purposes together with a statement inserted in the Congressional Record by defendant in the early part of September 1972, both of which have been printed at defendant's own expense. This mailing will be sent to Republican and Democratic County Committee people, officials, schools and libraries in Areas A and B with a letter indicating that more copies will be available upon request.
A. Revenue Sharing Report
Defendant has mailed unsolicited 280 copies of a report on Revenue Sharing printed at his own expense to public officials in Areas A and B and will mail unsolicited six or seven hundred updated versions of these mimeographed reports to state and local officials in Areas A and B. These reports have been and will be mailed under the defendant's frank.
Defendant intends to send an unsolicited survey on gun control under his frank to forty police chiefs in Areas A and B. These surveys will be printed at defendant's own expense.
6. General Findings. As a result of advisory opinions issued by Congressional Committees and previously by the Post Office Department, defendant had reasonable cause to believe that all his mailings under discussion to date and all his intended mailings would be permitted under his frank. The materials distributed by defendant under his frank cannot be characterized as the type of electioneering aids which were found in Rising v. Brown, 313 F. Supp. 824 (C.D.Cal.1970).
Although not asserted in the complaint as a jurisdictional basis, jurisdiction with respect to a claim that the franking privilege has been violated rests with this court by virtue of 28 U.S.C. § 1339 which provides:
"The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to the postal service."
See Christian Beacon v. United States, 322 F.2d 512 (3d Cir. 1963); Straus v. Gilbert, 293 F. Supp. 214 (S.D.N.Y.1968). Jurisdiction may also be found in 28 U.S.C. § 1331 insofar as a question concerning more than $10,000 arising under the alleged violation of ...