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United States

February 14, 1986



Author: Weis


WEIS, Circuit Judge.

The individuals appointed to the President's Commission on Organized Crime included a retired Supreme Court Justice and an active circuit judge. The movant, who was subpoenaed to appear before the Commission contends that its composition is unconstitutional because the inclusion of judges as members violates the separation of powers principle. We disagree and conclude that no constitutional transgression exists.

In the district court, petitioner Scarfo presented a motion to quash the subpoena served on him by the Commission. The court granted the motion, and the Commission has appealed.

Created by an executive order, the Commission was established to conduct a national analysis of organized crime, including its nature, its sources and amount of income, information on participants, and evaluation of pertinent federal laws. The Commission "shall advise the President and the Attorney General with respect to its findings and actions which can be undertaken to improve law enforcement efforts directed against organized crime, and make recommendations concerning appropriate administrative and legislative improvements and improvements in the administration of justice." Exec. Order No. 12435, 3 C.F.R. § 202 (1983).

The President appointed nineteen individuals to the Commission, including the Honorable Potter Stewart, a retired justice of the Supreme Court*fn1, two members of Congress, and representatives of the academic and private sectors as well as the law enforcement community. Judge Irving R. Kaufman, an active circuit judge from the United States Court of Appeals for the Second Circuit, was designated chairman.

To enable the Commission to carry out its assignments, Congress enacted Pub. L. No. 98-368, 98 Stat. 490 (1984), which grants authority to hold hearings and issue subpoenas. The statute deems the Commission a law enforcement agency to the extent the Right to Financial Privacy Act of 1978, 12 U.S.C. §§ 3401-22 (1982), may be invoked. Its members are investigative or law enforcement officers for purposes of access to information gained through wiretaps under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20 (1982). Thus, Commission members are given the right to examine documents and other evidence not available to the judiciary and the public at large.

The enabling statute requires the Commission to apply to the district courts for enforcement of subpoenas and for writs of habeas corpus ad testificandum. When appropriate, the Commission is authorized to seek witness immunity from the Attorney General. In addition, the Attorney General is directed to provide the Commission with administrative services, funds, facilities, staff, and other support personnel.

The Commission has conducted hearings in various parts of the country, summoning as witnesses law enforcement officials, victims of organized criminal groups, and former participants in illegal or questionable activities. On June 5, 1985, the Commission issued a subpoena to the movant Nicodemo Scarfo, ordering him to appear at a hearing in New York City on June 24. Rather than responding, he filed a motion in the district court in New Jersey to quash the subpoena.

In support of the motion, Scarfo alleged that in a prosecution pending in the district court, United States v. Leonetti, Cr. No. 84-253 (D.N.J. 1984), he was described as "the head of the Scarfo organization" and named as an unindicted co-conspirator. He averred that his attendance before the Commission was for purposes associated with the Leonetti case and therefore was in violation of the Federal Advisory Committee Act, 5 U.S.C.A. APP. 2 at 158 (Supp. 1985), which underlies Executive Order No. 12435. Scarfo also alleged that, according to a newspaper account, the prosecutor and a government undercover agent participating in the Leonetti case had met with members of the Commission staff.

The Commission denied having had any discussions with the Justice Department about the Leonetti prosecution and stated that neither Justice Stewart nor Judge Kaufman had personally participated in the decision to issue the Scarfo subpoena. At oral argument before the district court, Scarfo's counsel agreed that the thrust of his motion to quash the subpoena was the unconstitutionality of the Commission based on a breach of the separation of powers doctrine.

Following the decision of the Court of Appeals for the Eleventh Circuit in In re Application of the President's Commission on Organized Crime, Subpoena of Lorenzo Scaduto, 763 F.2d 1191 (11th Cir. 1985) (Scaduto), the district judge concluded that the presence of two members of the federal judiciary on the Commission violated the United States' Constitution. He therefore quashed the subpoena, reasoning that the Commission's existence was tainted with illegality.

On appeal, the Commission contends that the appointment of members of the judiciary to the Commission does not encroach on the authority of the other branches of government or derogate the institutional authority of the judicial branch. For the first time, the Commission also argues that the petitioner has no standing to raise the constitutional issue.

Scarfo asserts that the Commission acts as a law enforcement body and that the extrajudicial service of federal judges on such a body violates the constitutional doctrine mandating separation between the three branches of the government. He argues that participation by the judges in the Commission's work offends the ethical norms of federal judges, and casts a cloud of public doubt on the impartiality of the bench. He further contends that the Commission has waived the standing issue by failing to raise that defense in the district court.


On the standing question, the Commission argues that Scarfo has failed to show any personal injury or that he might be harmed as the result of judicial participation in the Commission's activity. In its view, Scarfo lacks standing because his stake is no greater than any other citizen's generalized interest in proper governmental function. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982). The Commission relies on Blair v. United States, 250 U.S. 273, 281, 63 L. Ed. 979, 39 S. Ct. 468 (1919), which observed that the "personal sacrifice involved [in testifying before a court or grand jury] is a part of a necessary contribution of the individual to the welfare of the public."

To determine standing, we do not examine the merits of the underlying controversy. As this court has observed, the "Supreme Court when reviewing the standing of a particular litigant has focused on the allegations set forth in the claimant's complaint to determine whether he meets the relevant standing test." Schiaffo v. Helstoski, 492 F.2d 413, 423 (3d Cir. 1974), citing Sierra Club v. Morton, 405 U.S. 727, 731, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972) and Association of Data Processing Serv. v. Camp, 397 U.S. 150, 152, 25 L. Ed. 2d 184, 90 S. Ct. 827 (1970). Accordingly, the inquiry centers on the plaintiff's pleadings, and "standing is generally determined from the face of the complaint." Borelli v. City of Reading, 532 F.2d 950, 951 (3d Cir. 1976). Thus, the issue here is whether Scarfo has alleged injury sufficient to give him access to a judicial remedy.

In Allen v. Wright, 468 U.S. 737, 52 U.S.L.W. 5110, 5114, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (July 3, 1984), the Supreme Court summarized the standing doctrine: "The requirement of standing . . . has a core component derived directly from the Constitution. A plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief."

By questioning Scarfo's allegation of "injury in fact," the Commission contests the court's authority to redress the alleged wrong. The court's responsibility to determine whether a case or controversy exists is a threshold matter which cannot be waived and which can be undertaken at any point in the proceedings. See Jenkins v. McKeithen, 395 U.S. 411, 23 L. Ed. 2d 404, 89 S. Ct. 1843 (1969). See also Valley Forge College of Americans United, 454 U.S. 464, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982). Moreover, we must decide the issue of standing "even though the court below passed over it without comment." McKeithen, 395 U.S. at 421.

Scarfo asserts that he had met the actual injury requirement. The motion to quash alleges that his appearance before the Commission was sought in connection with a pending criminal prosecution. In addition, he points to statements of the President and Chairman that one of the purposes of the Commission is "exposure" of "organized crime", "career criminals", and this "menace."

Since district court documents refer to Scarfo as a leader of a criminal organization, it is clear that he is not being summoned as a law enforcement official or a victim of organized crime, but as one of the targets of the investigation. The case, therefore, comes within the rationale of Jenkins v. McKeithen, where the Court found that a plaintiff had standing to contest the constitutionality of a state legislature commission investigating possible criminal violations in labor-management relations.

The complaint in McKeithen alleged that the state commission had caused the plaintiff to be branded as a criminal and had caused baseless charges to be brought against him. Even though the commission had not subpoenaed the plaintiff to appear before it, the Court concluded that he had adequately set forth sufficient injury to "his own legally protected interests to accord him standing to challenge the validity of the Act." 395 U.S. at 424. "[T]he personal and economic consequences alleged to flow from such actions are sufficient to meet the requirement that appellant prove a legally redressable injury." Id. "Appellant's allegations go beyond the normal publicity attending criminal prosecution; he alleges a concerted attempt publicly to brand him a criminal without a trial." Id. at 424-25.

Abuses of the investigation process may lead to an abridgement of constitutional freedoms. In Watkins v. United States, 354 U.S. 178, 197, 1 L. Ed. 2d 1273, 77 S. Ct. 1173 (1957), the Court said "the mere summoning of a witness and compelling him to testify, against his will, about his beliefs, expressions or associations is a measure of governmental interference. And when those forced revelations concern matters that are unorthodox, unpopular or even hateful to the general public, the reaction in the life of the witness may be disastrous."

Watkins and McKeithen are easily distinguishable from Blair v. United States, 250 U.S. 273, 63 L. Ed. 979, 39 S. Ct. 468 (1919) on which the Commission relies. In the latter case, the witnesses challenged them, arguing that the crime under investigation was not within the federal jurisdiction. The witnesses could not allege the personal harm set out in the Watkins and McKeithen cases. Consequently, in Blair the Court was able to find as potential injury only the inconvenience suffered by ...

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