author: McRAE, Chief Judge.

text:
    Rozelle TATE, et al., Plaintiffs, v. David COLLINS, et al., Defendants
    No. 80-2381-M.
    United States District Court, W.D. Tennessee, W.D.
    Nov. 26, 1985.
    Susan L. Kay, Nashville, Tenn., for plaintiffs.
    Michael W. Catalano, Asst. Atty. Gen., William F. Howard, Acting Director of Law, Nashville, Tenn., for defendants.
   MEMORANDUM DECISION

McRAE, Chief Judge.

Intervenors Ronald Newson and three other inmates at the Tennessee State Penitentiary in Nashville, have petitioned this Court for clarification of its Final Consent Order entered September 17, 1980, in this case on the issue of a proper determination of prisoners’ voting domiciles. Specifically, intervenors submit that they are entitled to the opportunity to rebut a presumption that they are domiciled in the county of their residence immediately prior to incarceration and thereby to establish new domicile at the penitentiary in Davidson County.

Newson, et al., were granted permission to intervene pursuant to Fed.R.Civ.P. 24(b). State Coordinator of Elections David Collins (Collins) is properly before the Court as an original defendant in Tate, and the Davidson County officials are before the Court as persons bound by the previous injunction pursuant to Fed.R.Civ.P. 65.

FINDINGS OF FACT

The facts of this controversy are not disputed by the parties. In earlier proceedings in this case, Tate v. Collins, 496 F.Supp. 205 (W.D.Tenn.1980), which concerned absentee voting procedures for Tennessee prisoners convicted of “noninfamous” crimes, this Court included in its Final Consent Order a paragraph to be followed in determining a prisoner’s voting residence.,

The paragraph stated:

The registrant’s right to register shall be determined in accordance with the provisions of Tennessee Code Annotated sections 2-2-120 — 2-2-122. A registrant presently incarcerated in a jail, workhouse, prison or other penal institution shall be presumed to legally reside at his last free-world residence prior to his conviction unless a contrary intent is shown pursuant to the Tennessee Code Annotated sections 2-2-120 — 2-2-122 (emphasis added).

Subsequent to entry of this Order, defendant Collins instructed county election officials throughout the state of Tennessee to reject the voter registration application of any prisoner who subjectively asserted on the application that the county of incarceration was his legal residence for voting purposes but whose last free-world residence was not the county of incarceration, absent some type of objective manifestation of a change of residence.

In 1981, the Tennessee General Assembly enacted Chapter 337 of the Public Acts of 1981 which repealed T.C.A. § 2-2-121 and deleted the subjective questions set forth in T.C.A. § 2-2-116 for determining legal residence for voting purposes. However, Chapter 337 replaced these subjective questions with the following subjective affirmation:

I, being duly sworn on oath (or affirmation) declare that the above address is my legal residence and that I plan to remain at such residence for an undetermined period of time and say that to the best of my knowledge and belief all the foregoing statements made by me are true.

The enactment of Chapter 337 did not alter defendant Collins’ interpretation of the final consent order.

There are approximately 320 male inmates at the Tennessee State Penitentiary in Davidson County who are eligible to vote. Because Tennessee law now provides that anyone convicted of a felony after 1981 is ineligible to vote, the number of imprisoned eligible voters should not increase and can be expected to decrease gradually over time. In 1984, a number of inmates otherwise eligible to vote sought to register in Davidson County. The Davidson County election officials, acting upon instructions authorized by statute from defendant Collins, adopted a policy declining to recognize domicile in Davidson County for any inmate whose last free-world residence prior to incarceration was elsewhere than in Davidson County. That policy continues in effect according to depositions filed in this Court.

CONCLUSIONS OF LAW

A. Grounds for Decision

Intervenors have urged among other grounds for decision that defendants’ actions are in conflict with a proper reading of the Final Consent Order as informed by the principles for establishment of domicile adopted by the state and federal courts and the legislature of Tennessee.

Because the issue before the Court can be decided on nonconstitutional grounds, it is unnecessary to decide whether the current Tennessee scheme either on its face or as applied is unconstitutional. The Court notes, however, that in developing a plan to regulate the voter registration process for prisoners, it is mindful of the necessity to narrowly tailor the least restrictive means necessary to promote the compelling state interest in prevention of voting irregularities. See Kramer v. Union Free School District, 395 U.S. 621, 632-33, 89 S.Ct. 1886, 1892, 23 L.Ed.2d 583 (1969).

B. Determinations of Voting Domicile

Tennessee Code Annotated §§ 2-2-116, 2-2-120, 2-2-122 and 2-2-125 contain the following provisions salient to the determination of a prisoner’s domicile for voting purposes:

1. § 2-2-122(a)(2) and (3), which state that, “A change of residence is generally made only by the act of removal joined with the intent to remain in another place____ A person does not become a resident of a place solely by intending to make it his residence. There must be appropriate action consistent with the intention.”
2. § 2-2-122(a)(4), which states that, “A person does not lose his residence if, with the definite intention of returning, he leaves his home and goes to another ... place within this state for temporary purposes, even if of years duration.” (emphasis added)
3. § 2-2-122(a)(5), which states, “The place where a married person’s spouse and family have their habitation is presumed to be his place of residence, but a married person who takes up or continues his abode with the intention of remaining at a place other than where his family resides is a resident where he abides.”
4. § 2-2-122(a)(6), which states that, “A person may be a resident of a place regardless of the nature of his habitation, whether house or apartment, mobile home or public institution ...” (emphasis added).
5. § 2-2-122(a)(7), which states, “A person does not gain or lose residence solely by reason of his presence or absence while employed in the service of the United States or of this state, or while a student at an institution of learning, or while kept in an institution at public expense, or while confined in a public prison, or while living on a military reservation.” (emphasis added)
6. § 2-2-122(b), which states, “The following factors, among other relevant matters, may be considered in the determination of where a person is a resident:
(1) His possession, acquisition or surrender of inhabitable property;
(2) Location of his occupation;
(3) Place of licensing or registration of his personal property;
(4) Place of payment of taxes which are governed by residence;
(5) Purpose of his presence in a particular place;
(6) Place of his licensing for activities such as driving;
(7) That he shall have been a resident of this state for a period of at least twenty (20) days prior to such registration. (emphasis added)
7. § 2-2-116, which states that the permanent registration record shall be “substantially as follows” and prescribes the following declaration: “I, being duly sworn on oath (or affirmation) declare that the above address is my legal residence and that I plan to remain at such residence for an undetermined period of time ...”
8. § 2-2-120 and -125, which state that, “The registrar shall determine, from the registrant’s answers to the questions on the permanent registration record and other questions, if necessary, whether the registrant is entitled to register. If the registrar determines that the registrant is entitled to register, he shall declare the registrant a registered voter____ If the registrar determines that the registrant is not entitled to be registered, he shall tell the registrant the reason, ... that he has a right to appeal ... and offer him an appeal form. If the commission believes that the appellant has violated the law in registering, it shall report the matter to the grand jury and the district attorney general.” (emphasis added)

The language of the Final Consent Order, supra, sets out three principles for the determination of a prisoner’s voting domicile: (1) a presumption of domicile at the last free-world residence; (2) an opportunity for the prisoner to show a contrary intent, that is, to rebut the presumption; and (3) an obvious direction that the prisoner’s contrary showing and the overall resolution of the domicile issue should be accomplished pursuant to the statutory scheme. That statutory scheme contemplates an opportunity for a prisoner to establish a new domicile at the place of incarceration and provides guidelines relevant to the determination of the sufficiency of that showing. The Tennessee Supreme Court has said that domicile is “the home or habitation fixed in any place, without a present intention of removing therefrom.” Brown v. Hows, 163 Tenn. 178, 182, 42 S.W,2d 210, 211 (1931). The United State Court of Appeals for the Sixth Circuit has elaborated:

To acquire a domicile within a particular state, a person must be physically present in the state and must have either the intention to make his home there indefinitely or the absence of an intention to make his home elsewhere. Stifel v. Hopkins, 477 F.2d 1116, 1126 (6th Cir.1973).

The requisite intent, thus, is that a person have “no present intention of changing” the place of abode, a quality the Supreme Court has termed “the essence of domicile.” Gilbert v. David, 235 U.S. 561, 570, 35 S.Ct. 164, 167, 59 L.Ed. 360 (1919).

Historically, a prisoner or other person kept at an institution under legal compulsion had been held incapable of forming the requisite intention to effect a change of domicile to that new location. See Restatement (Second) Conflict of Laws § 17 and Comment C. In recent years there has been a shift away from this view. Courts in various jurisdictions have held it proper to permit prisoners or others under compulsion to attempt to establish new domicile at their “involuntary” location. See, e.g., Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965) (soldiers for voting purposes); Stifel v. Hopkins, supra, (prisoners for diversity); Dane v. Board of Registrars, 374 Mass. 152, 371 N.E.2d 1358 (1978) (prisoners for voting); McKenna v. McKenna, 282 Pa.Super. 45, 422 A.2d 668 (1980) (prisoners for divorce); Krasnov v. Dinan, 333 F.Supp. 751 (E.D.Pa.1971) (monks for diversity), on rehearing, 339 F.Supp. 1357 (E.D.Pa.), aff'd, 465 F.2d 1298 (3d Cir.1972).

The Stifel v. Hopkins opinion, however, did more than prescribe that a prisoner should be allowed to rebut a presumption of nonresidence. The court also said that involuntary presence should operate “as a presumption ordinarily requiring more than unsubstantiated declarations to rebut. 477 F.2d at 1126 (emphasis added).

Although Stifel concerned domicile for purposes of diversity of citizenship, its principles can be adapted appropriately to the voting area. In Carrington v. Rash, 380 U.S. 89, 96, 85 S.Ct. 775, 780, 13 L.Ed.2d 675 (1965), the Court emphasized that a state may “take reasonable and adequate steps” to assure that voters fulfill the requirements of bona fide residence and thereby serve the state interest in protecting against voting irregularities. The Second Circuit has held in the area of student voting that a state will not run afoul of the equal protection clause by conducting a more “searching inquiry” of the factual circumstances of recognizable categories of persons who present “special problems” in determining residence. Auerbach v. Rettaliata, 765 F.2d 350, 353-55 (2d Cir.1985). In Stifel v. Hopkins, supra, the Sixth Circuit said that in making the essentially factual determination of domicile for a prisoner,

[T]he court should accord weight to [the prisoner’s] declarations of intentions, but in the circumstances of this case the physical facts pertaining to [his] incarceration and to the conduct of his personal affairs assume perhaps a greater than usual significance____ The Court should consider factors such as the possibility of parole ..., the manner in which [he] has ordered his personal and business transactions, and any other factors that are relevant to corroboration of [the prisoner’s] statements. 477 F.2d at 1126-27 (footnotes omitted).

This approach comports with the Tennessee statutory scheme, which by its own terms, permits a prisoner to establish domicile in his county of incarceration. It states, for example, that a person may have voting residence in a “public institution.” Tenn.Code Ann. § 2-2-122(a)(6). It enumerates prisoners along with soldiers, students and persons kept in other institutions at public expense as persons who neither “gain nor lose residence solely by reason” of their removal to those institutions. Tenn.Code Ann. § 2-2-122(a)(7). The statute clearly provides for election officials to seek from certain applicants for registration additional information pertinent to determination of their domiciliary intent. Tenn.Code Ann. § 2-2-120. Finally, the statute lists a number of factual circumstances that may guide officials to a proper determination of domicile, including the location of family, possession of property, payment of taxes, and licensing of certain activities. Tenn.Code Ann. §§ 2-2-122(a)(5) — (b)(1)—(7).

SPECIFIED PROCEDURES

With this view of the statutory scheme and of the appropriate state interests in mind, the Court directs the defendants to adopt the following approach. Prisoners shall be divided into three groups determined by the length of their remaining periods of incarceration. For each group, election officials may require some independent corroboration of the prisoner’s assertions of domiciliary intent. The type of corroboration shall differ depending upon the differing futures open to members of these groups.

Each prisoner desiring to vote in the county of incarceration shall be required to sign a statement subject to the penalties for perjury, including disenfranchisement, that he or she has

(1) no spouse or other family member in the county of last free-world residence with whom he or she intends to reside at that location in the future;
(2) no real or personal property in the county of last free-world residence upon which taxes can be levied; and
(3) no plan upon release from prison to reside in a county in Tennessee other than the county of incarceration.

Each of these prisoners must provide with his or her application for registration the above sworn statement, accompanied by a sworn statement from a free-world resident of Tennessee. The accompanying statement shall attest, to the best knowledge of the affiant and subject to the penalties for perjury, including disenfranchisement, that the above three assertions made by the prisoner are true. The free-world affiant may be (1) any resident of the county of the prisoner’s last free-world residence; or (2) a resident of any other Tennessee county, including the county in which the prisoner is incarcerated, who declares that he or she has known the prisoner for more than one year.

For purposes of domicile determination, prisoners providing the two sworn statements shall be broken into three categories:

(1) Prisoners with death sentences or sentences carrying earliest parole dates beyond age 80 shall be determined as domiciled in the county of incarceration if they provide the two requisite sworn statements.
(2) Prisoners within one year of their earliest release dates shall be determined as domiciled in the county of incarceration if they provide the two requisite sworn statements and provide a sworn statement from a free-world counselor, parole officials, or representative of an organization which specializes in providing post-release services to former inmates that the inmate has definite plans for post-release residence in the county of incarceration. Obviously, a prisoner with definite post-release plans to return to the county of last free-world residence or any other county than the county of incarceration shall be determined as domiciled in the county of last free-world residence or other county. A prisoner in this category without definite post-release plans shall be treated as a prisoner in category (3).
(3) All other prisoners who provide the two requisite sworn statements shall be given the opportunity to provide, under penalties of perjury at the time of application for registration, information pertinent to their interests in the county of incarceration. Relevant information would include, but is not limited to, the presence of a spouse, other relative, or close friend in the county of incarceration; documentation of visits to the prisoner by that person or those persons; subscriptions to local newspapers or periodicals; memberships in local organizations of a religious or secular character; grant of living quarters after release in county of incarceration; grant of living quarters in a half-way house in county of incarceration; affirmation of employment in county of incarceration after release; or a sworn statement by a counselor or member of the clergy that the prisoner considers the county of incarceration or the prison his home and that the prisoner takes an active interest in community affairs in said county. A prisoner who provides information satisfying one or more of these criteria, or demonstrating substantially equivalent information, shall be deemed domiciled in the county of incarceration.

Election officials shall draft and make available forms to provide prisoners with appropriate vehicles to provide this information.

IT IS SO ORDERED.


source: Caselaw Access Project

author: OBERDORFER, District Judge.

license: Public Domain

text:
    Dr. Paul KURTZ, Plaintiff, v. Ralph E. KENNICKELL, Jr., et al., Defendants.
    Civ. A. No. 84-2918.
    United States District Court, District of Columbia.
    Nov. 26, 1985.
    As Amended Dec. 3, 1985.
    Ronald A. Lindsay, Washington, D.C., for plaintiff.
    Richard K. Willard, Acting Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., Brook Hedge, Sandra M. Schraibman, Stephanie L. Golden,' Attys., U.S. Dept, of Justice Civil Div. Washington, D.C., for defendants.
    Michael Davidson, Senate Legal Counsel, Ken U. Benjamin, Jr., Deputy Senate Legal Counsel, Morgan J. Frankel, John C. Grabow, Asst. Senate Legal Counsel, Washington, D.C., for amicus curiae, U.S. Senate.

      . Defendants oppose certain statements in plaintiffs statement of material facts. Opposition to Plaintiffs Statement of Material Facts As To Which There Is No Genuine Issue (Opposition to PSMF) (filed April 12, 1985). To the extent of defendants’ opposition, the facts are at issue and thus not relied upon in this Memorandum.

   MEMORANDUM

OBERDORFER, District Judge.

I.

Plaintiff, alleging that he is a federal taxpayer and a secular humanist, here sues the Public Printer, the Secretary of the Treasury, and the Treasurer of the United States. He alleges that their use of appropriated funds to print and publish annual compilations of prayers offered by the Chaplains of the Senate and the House of Representatives violates the Establishment Clause of the First Amendment. Plaintiff originally sought an injunction and a declaration that the practice of printing and binding the Chaplains’ prayers is unconstitutional. He has, however, now withdrawn his prayer for injunctive relief and seeks only a declaratory judgment. Transcript of Proceedings (Tr.) of October 11, 1985 at 14.

Defendants have moved to dismiss or, in the alternative, for summary judgment. Plaintiff has opposed this motion and filed a cross-motion for summary judgment. Counsel for the Senate has filed helpful briefs as amicus curiae. The motions have been fully briefed and argued.

Since 1929, the Senate has regularly authorized, and the Congress has appropriated, funds which have been used by the Government Printing Office (GPO) to print, publish and distribute annually approximately 2,000 books of compilations of prayers offered by the Senate Chaplain. Defendant’s Statement of Material Facts As To Which There Is No Genuine Issue (DSMF) at ¶¶ 7, 8, 13 (filed Feb. 1, 1985). The prayers printed are mostly those offered at the opening of each Senate session. Some were offered at special events elsewhere. Plaintiff’s Statement of Material Facts As To Which There Is No Genuine Issue (PSMF) at 2 (filed March 15, 1985) From 1913 to 1916, and 1927 until 1978, the defendants also printed and published similar compilations of prayers offered by the Chaplains of the House of Representatives, but no compilations of prayers by the House Chaplains have been printed since 1978. DSMF at ¶¶ 3, 6.

As a result of the most recent authorizations, the Public Printer has printed 2,338 copies of the Senate Chaplain’s prayers in two volumes at a cost of $20,414.36. DSMF at ¶ 12. The three preceding printings cost $26,695, $29,847 and $21,364. PSMF at ¶ 4. Some of these volumes have not yet been distributed. Declaration of John W. Morris, Assistant Superintendent, Congressional Printing Management Staff, GPO at ¶ 4 (filed April 12, 1985); Supplemental Declaration of John W. Morris at ¶¶ 2-5 (filed Oct. 11, 1985). Those distributed have gone to a prescribed category of distributees: the Library of Congress, the National Archives, international libraries, the House and Senate Library, and to Depository Libraries. DSMF at ¶ 14 (citing 44 U.S.C. §§ 1718, 1714, 1719, 701, 1901-1914, respectively). A number of copies go to various Executive departments and agencies, and other governmental entities. DSMF at ¶¶ 17, 18. Congressional members and the Chaplains receive a few. DSMF at ¶¶ 19-21. About 100 are printed for emergencies. DSMF at ¶ 20. The volumes are not for sale, DSMF at ¶ 22, but there is evidence that copies are available to members of the public without cost from several sources. PSMF at ¶ 3; Opposition to PSMF ¶ 3.

The volumes contain primarily prayers offered on the floor of the Senate. They also contain some introductory remarks by public officials. PSMF at ¶ 5; Opposition to PSMF at ¶ 5. For example, the volume published in 1946 included a statement that its purpose was to make the prayers of Chaplains available to “large numbers of our citizens” and to make “a valuable addition to the religious literature of our day.” PSMF ¶ 5 (citing Prayers Offered by the Chaplain Rev. Frederick Brown Harris, S.Doc. No. 204 (1946) at ix, xi). Similar statements have been made in the introduction of other volumes. See Memorandum of Points and Authorities in Opposition to Defendants’ Motion to Dismiss or in the Alternative for Summary Judgment and in Support of Plaintiff’s Cross-Motion for Summary Judgment (Plaintiff’s Mem.) at 84-35 (filed March 15, 1985). In supplemental submissions, defendants show that printing of the Senate prayer volumes for both the 97th and 98th Congresses has been completed and that all that remains to be done pursuant to the 1984 Resolution is to include 509 unbound and untrimmed volumes in the serial set consisting of all congressional documents published during the 98th Congress. Morris Declaration at ¶ 4.

II.

A.

Defendants first raise a jurisdictional concern. Defendants’ motion alleges that plaintiff lacks standing to bring this action for several reasons. First, defendants argue that plaintiff lacks standing as an individual because he fails to allege concrete and particularized injury, and fails to meet the causation and redressability requirements of standing. Second, defendants argue that plaintiff has no standing as a taxpayer because (a) the expenditures were not made on authority of Congress’ spending power under Article I, § 8, cl. 1 of the Constitution; (b) the challenged spending powers do not constitute a federal spending program; and (c) the amounts involved are insubstantial and are incidental to Congress’ authority to conduct its internal operations.

Defendants’ challenge to plaintiff’s standing, however, must fail. Our Court of Appeals’ last word on this subject recognized the standing of a taxpayer to challenge the use of appropriated funds in violation of the Establishment Clause. Murray v. Buchanan, 720 F.2d 689 (D.C. Cir.1983) (en banc); see also Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 3332 n. 4, 77 L.Ed.2d 1019 (1983); Katcoff v. Marsh, 582 F.Supp. 463, 467-71 (E.D.N.Y.1984), aff'd in pertinent part, 755 F.2d 223 (2d Cir.1985). These decisions demonstrate that a taxpayer retains standing to challenge the use of appropriated funds in ways that violate the Establishment Clause of the First Amendment. Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968).

Defendants’ reliance on Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982), is misplaced. The taxpayer plaintiff in that case challenged Congress’ exercise of its power under Article IV of the Constitution to convey surplus federal property, the maintenance of which was depleting the Treasury and increasing taxpayers’ burdens. Here, the plaintiff relies upon a taxpayer’s interest in the disposition of appropriated funds pursuant to Congress’ spending power under Article I, § 8, cl. 1.

Defendants also contend that the Flast doctrine is inapplicable because the expenditures here are de minimis and not part of a “spending program.” But, in a literal sense, expenditures of up to $30,000 per year since the 1920’s is a spending program. Moreover, there is no significant difference between the amounts expended here and the expenditures for a Chaplain’s salary, at issue in Murray, supra. The Court of Appeals’ recognition of standing in that case forecloses defendants’ challenge to plaintiff’s standing here based on the size and continuity of the expenditures.

Defendants also challenge plaintiff’s standing as an individual. But, whether or not plaintiff is a secular humanist, he is also a federal taxpayer. While plaintiff's interest as a skeptic about religion explains the motive for his challenge to the publication of the prayer volumes here, it does not detract from his taxpayer standing. In view of the clear precedent supporting plaintiffs claim to standing as a taxpayer, it is unnecessary to resolve the hypothetical questions which would be raised if taxpayer standing did not exist.

B.

On the merits, defendants urge that the printing and publishing of the prayer volumes neither advances religion nor involves excessive entanglement of government with religion. Defendants contend that since the Supreme Court has ruled in Marsh, supra, that the rendering of opening prayers in a legislature does not violate the First Amendment, “gathering those prayers into one volume cannot transform otherwise legitimate activity into an establishment of religion by the government.” Memorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss or in the Alternative for Summary Judgment (Defendant's Mem.) at 46 (filed February 1, 1984).

As to secular purpose, defendants cite Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), where the Supreme Court stated:

The Court has invalidated legislation or governmental action on the ground that a secular purpose was lacking, but only when it has concluded that there was no question that the statute or activity was motivated wholly by religious considerations ... Even where the benefits to religion were substantial, ..., we saw a secular purpose and no conflict with the Establishment Clause.

104 S.Ct. at 1362 (citations omitted). They contend that the printing and publication serve Congress’ secular purposes of providing convenient access to an account of part of the legislative day and of honoring the Chaplains who are officers of Congress.

Plaintiff responds that “on the merits, this is an open-and-shut case. Congress is spending public funds for the publication of prayer books.” Plaintiff’s Mem. at 32. He cites Everson v. Board of Education, 330 U.S. 1, 15-16, 67 S.Ct. 504, 511-12, 91 L.Ed. 711 (1947), for the proposition that the:

‘establishment of religion’ clause of the First Amendment means at least this: ____ No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.

Relying on the prayers themselves and statements in the prayer volumes as evidence of a religious purpose, plaintiff argues that it is unnecessary to determine whether publication of the books either advances religion or entangles government with religion.

Ultimately, plaintiff argues that the Supreme Court’s decision in Marsh, supra, “was predicated on historical considerations entirely absent in this case,” i.e., that “the Congress that drafted the first amendment also appointed congressional chaplains.” Plaintiff’s Mem. at 38; Marsh, supra, 103 S.Ct. at 3335. By contrast, plaintiff emphasizes that the publication practice is of relatively recent vintage, and was not practiced by Congress contemporaneously with the adoption of the First Amendment.

Answering defendants’ contentions as to other constitutional bars to suit, plaintiff argues that because the prayers are printed for public distribution, review of the process is not prohibited by the Publication Clause. Hentoff v. Ichord, 318 F.Supp. 1175 (D.D.C.1970). As to the Speech or Debate Clause, plaintiff contends that the publication and distribution of the prayer volumes is not sufficiently “a part of the legislative process itself” to be protected. Plaintiff’s Mem. at 28 (citing United States v. Brewster, 408 U.S. 501, 527-28, 92 S.Ct. 2531, 2544-45, 33 L.Ed.2d 507 (1972); Gravel v. United States, 408 U.S. 606, 626, 92 S.Ct. 2614, 2627-28, 33 L.Ed.2d 583 (1972); Walker v. Jones, 733 F.2d 923, 929 (D.C.Cir.), cert. denied, — U.S.-, 105 S.Ct. 512, 83 L.Ed.2d 402 (1984)). He cites congressional authority for the proposition that prayer by the Chaplain “is not a matter of business, but ... a matter of ceremony.” Plaintiff’s Mem. at 29 (citing 6 C. Cannon, Precedents of the Home of Representatives, § 663 (1936)).

C.

In addition to their lengthy arguments on the propriety of congressional prayer printings, defendants suggest, and the . Senate urges, that prudential considerations should cause the Court, in its discretion, to decline to “intrude on the responsibilities ... of the coordinate branches.” Defendants’ Mem. at 36 n. 36 (citing National Wildlife Federation v. United States, 626 F.2d 917 (D.C.Cir.1980)); Defendants’ Memorandum of Points and Authorities in Opposition to Plaintiff’s Motion For Summary Judgment and in Support of Defendants’ Motion to Dismiss or in the Alternative For Summary Judgment (Defendants’ Opposition) at 4-9 (filed April 12, 1985). For, they point out, all but 509 copies of the previously published prayer volumes have been distributed; the 509 copies remain for inclusion in the serial set of all documents published during the second session of the 98th Congress; and there are no outstanding orders for the printing and binding of any other prayers of the Chaplains. Defendants’ Opposition at 7. Defendants and the Senate urge that these facts, while not mooting the case, buttress their appeal for exercise of equitable discretion and the dismissal of the complaint.

Plaintiff originally responded that he does not challenge merely the most recent printing and publication — he challenges the practice, past, present and future. In this regard, plaintiff argued:

[There is not] the slightest indication that these regularly recurring publications will suddenly cease. Neither Defendants nor their amicus have stated that they recognize the error of their ways; quite the opposite, they have vigorously defended the legality and appropriateness of the practice.

Reply Memorandum of Points and Authorities in Support of Plaintiff's Cross-Motion for Summary Judgment at 3 (filed April 29, 1985).

A hearing was held on October 11, 1985, on the parties’ cross-motions. At that argument, in response to earlier inquiry by the Court, counsel for the Senate, as amicus curiae, addressed the possibility that plaintiff might obtain the relief he sought by a petition to the Senate for the redress of his grievances. Tr. at 46-54. He noted that in the 1850’s “there were very lively petitions concerning the congressional chaplaincy in various parts of the country”. Tr. at 48; see also Tr. at 52-53. He pointed to Senate rules which contemplate the reference of such a petition to the relevant committees — in this case the Committee on Rules and Administration. Counsel further advised that the majority and minority leadership of that committee had given him a “broad authorization ... to represent to the Court that any petition with respect to the printing of the prayer would receive ... serious ... consideration.” Tr. at 49. Counsel further represented that the chairman had come to a position “which would assure that certainly within this present Congress, if the Plaintiff or anyone else were to petition for that relief, [the petition] would receive the fullest attention of the committee.” Tr. at 50. From this, the Senate counsel urged that “we’re at a juncture in this particular case where the desireability [sic] of turning primarily and principally to Congress for determination of these matters is very strong.” Tr. at 50. He urged the Court, in deference to the separation of powers principle, to defer consideration of the matter “until the Senate ... makes a fresh judgment through a fresh legislative action” that “there should be printing on some terms in the future.” Tr. at 56. Senate counsel further suggested that rather than stay the proceedings so that the Senate was “[u]nder the gun” of the Court, the case should be dismissed without prejudice. Tr. at 57. Counsel pointed out that briefing is already complete so that in the event that the Senate decided to resume publication of volumes of Chaplain’s prayers the case is in position for prompt decision by the Court. In addition, counsel undertook to advise plaintiff promptly of the introduction of a resolution for the printing of the prayers in any subsequent Congress. Tr. at 58. At the hearing, plaintiff urged the Court to decide the case on the merits because these “are not questions that are to be confined to [the] political process.” Tr. at 66.

A post-hearing memorandum on behalf of the Senate strongly urges that the Senate be provided with an opportunity to consider whether it will direct the printing of future collections of the Chaplain’s prayers, and reiterates that, in the special circumstances here, the Court should dismiss the complaint without prejudice on prudential grounds. Supplemental Post-Hearing Memorandum of Amicus Curiae United States Senate (Supplemental Senate Memorandum) (filed Nov. 7, 1985). The post-hearing memorandum was supported by a copy of a statement on the floor of the Senate by Senator Charles McC. Mathias, Jr., Chairman of the Senate Committee on Rules and Administration and of the Joint Committee on Printing. 131 Cong.Rec. S14277 (daily ed. October 29, 1985). That statement (a copy of which is attached hereto) confirmed the representations made by the Senate counsel at the October 11 hearing. Senator Mathias announced that if the question of printing further collections of Chaplain’s prayers arose during the present Congress, either on petition by plaintiff (or someone else) or in the form of a new resolution to authorize further printing, it would be explored fully by the committees which he chairs. He stated that he personally would oppose further printing of the prayers because, apart from the cost, the printing of the prayer compilations “risks detracting from the central purpose of the chaplaincies.” Id: He concluded:

I should emphasize that I am not questioning the constitutional right of the Senate to reprint portions of its daily proceedings. If the courts were to decide the merits of the plaintiff’s challenge to the printing of Senate documents, the courts would be required to consider the delicate issue presented when a coordinate branch is asked to enjoin the printing of congressional proceedings. In response to such a lawsuit, the courts must weigh the separation of powers restraints on judicial oversight of congressional printing. Within the Senate, however, we enjoy wide latitude to examine our own practices. We are the appropriate forum for resolving these problems. It is for this reason that I have decided I should advise the Senate about the issue and about my conclusion that we should terminate this recent and costly addition to an important historical tradition which is of great significance to us.

Id.

Plaintiff strongly opposes dismissal by exercise of equitable discretion. However, on the day he filed his response, he also filed a petition with the Vice President of the United States with the expectation that it would be referred to the relevant Senate Committee. He suggested in his petition that the Senate might well be able to act on it before a court decision could be announced. Plaintiff’s new response cites, for the first time, the Court of Appeals’ decision in Gregg v. Barrett, 771 F.2d 539 (D.C.Cir.1985). In that case, Members of Congress and private plaintiffs brought an action alleging that responsible congressional officials did not accurately portray congressional events in the Congressional Record. Our Court of Appeals approved dismissal of the complaint of Members of Congress by exercise of equitable discretion in deference to the separation-of-powers problems inherent in judicial involvement in the inner workings of Congress. It refused, however, to apply the doctrine of equitable discretion to dismiss the claims of private plaintiffs, i.e., persons who were not Members of Congress. 771 F.2d at 543-46. The Gregg Court emphasized that the congressional plaintiffs (unlike the private plaintiffs) had “at least two ways” to achieve their ends “through resort to the legislative process.” Id. at 545.

But, Gregg does not preclude dismissal of the complaint of the private plaintiff in the special circumstances here. In Gregg, the private plaintiff had neither filed a petition nor been the recipient of a committee Chairman’s commitment on the public record to consider that petition. Moreover, in this case most of the acts of which plaintiff complains have already occurred— only 509 prayer volumes remain to be bound and trimmed and included in the serial set. Thus, the controversy, although “not actually moot,” may be “so attenuated that considerations of prudence and comity for coordinate branches of government counsel the court to stay its hand, and to withhold relief it has the power to grant.” Chamber of Commerce of the United States of America v. United States Department of Energy, 627 F.2d 289, 291 (D.C.Cir.1980). The fact that plaintiff challenges not only the specific printing at issue but also the entire practice of governmental prayer printing, does not dictate a different result in the particular circumstances presented here. As the Supreme Court has said in the context of review of challenged agency action:

Declaratory judgment is a remedy committed to judicial discretion____ We think that sound discretion withholds the remedy where it appears that a challenged “continuing practice” is, at the moment adjudication is sought, undergoing significant modification so that its ultimate form cannot be confidently predicted.

A.L. Mechling Barge Lines, Inc. v. United States, 368 U.S. 324, 331, 82 S.Ct. 337, 342, 7 L.Ed.2d 317 (1961).

Here, the facts on the record in this case confirm that the Senate may well be prepared to address this issue on the merits, as it did similar issues in the 1850’s. In this connection, it is noteworthy that the House of Representatives has not published its Chaplain’s prayers since 1978, DSMF at ¶ 2, and there is no suggestion that renewal of the practice by the House is in prospect; If the Senate fails to act within a reasonable time, plaintiff’s papers are in place and standing and jurisdiction have been adjudicated. Thus, plaintiff’s complaint could be quickly reinstated and the issue resolved on the merits. Now, however, the availability of a forum in the Senate for fresh consideration of whether to print volumes of Chaplain’s prayers makes it appropriate, in the unusual circumstances of this case, to defer to this coordinate forum. For, as Justice Powell has said:

[H]ead on confrontations between the life-tenured branch and the representative branches of government will not, in the long run, be beneficial to either. The public confidence essential to the former and the vitality critical to the latter may well erode if we do not exercise self-restraint in the utilization of our power to negative the actions of the other branches.

United States v. Richardson, 418 U.S. 166, 188, 94 S.Ct. 2940, 2952, 41 L.Ed.2d 678 (1974) (Powell, J., concurring).

Accordingly, the Court will withhold declaratory relief for prudential reasons in this case. The accompanying order will dismiss the complaint without prejudice. See National Wildlife Federation, supra, 626 F.2d at 923.

EXHIBIT A

Vol. 131

CONGRESSIONAL RECORD — SENATE

S14277

October 29, 1985

PERIODIC PRINTING OF THE CHAPLAIN’S PRAYERS

Mr. MATHIAS. Mr. President, pursuant to Senate Resolution 468 of the 98th Congress, the Senate Legal Counsel is appearing as amicus curiae in the name of the Senate in the case of Kurtz against Kennickell. The plaintiff in this litigation, which is pending in the U.S. District Court for the District of Columbia, is asserting that the printing of compilations of the Chaplain’s prayers violates the establishment clause of the first amendment to the U.S. Constitution. The Senate is supporting the Department of Justice’s constitutional defense of the periodic printing by the Government Printing Office of collections of the prayers of the Senate Chaplain.

As chairman of the Committee on Rules and Administration and of the Joint Committee on Printing, and also as a member of the Joint Leadership Group with responsibilities concerning the Office of Senate Legal Counsel, I have a particular interest in this lawsuit. Both by statute and by Senate rule, the Committee on Rules and Administration is responsible for reporting to the Senate resolutions to order the printing of Senate documents. Under this authority, the committee reported and the Senate approved Senate Resolutions 375 and 376 in May 1984 to order the printing of the Senate Chaplain’s prayers for the 97th and 98th Congresses. These resolutions provide that copy for these documents shall be prepared under the direction of the Joint Committee on Printing.

In Marsh against Chambers, decided in 1983, the Supreme Court sustained the constitutionality of the election and compensation of legislative chaplains. The Court carefully traced the history of the legislative chaplaincies, emphasizing that the First Congress, the same Congress which proposed the Bill of Rights to the States, also provided for the election by each House of a Chaplain who would be compensated together with the other officers of the Senate and House.

The printing of the prayers of the Senate and House Chaplains is of more recent origin. Although prayers were occasionally printed in the Congressional Record prior to 1911, the Record generally continued the practice, with some exceptions, of noting the delivery of prayers but not printing their texts. In 1911, the House directed that all the invocations of its Chaplain be printed in the daily Record, and the Senate followed suit in 1914. The first reprinting of the prayers of a congressional Chaplain occurred in 1913 when the House agreed to a resolution to print a volume of its Chaplain’s prayers for the 62d Congress. The Senate defeated a proposal that year to print its own Chaplain’s prayers. In 1927, the House again ordered the printing of a volume of its Chaplain’s prayers, and the Senate, 2 years later in 1929, for the first time ordered the printing of a volume of the Senate Chaplain’s prayers. The House has not reprinted its Chaplain’s prayers since 1978.

The question has arisen, in the case now pending in the district court, whether the Senate rather then the courts is the better forum for considering whether the Senate’s recent practice of printing compilations of the Chaplain’s prayers should be ended or modified. The plaintiff, as any other individual, has a right under the first amendment to petition the Government for a redress of grievances. The Senate in Standing Rule YII makes specific provisions for the receipt of petitions and for their referral to committees.

As chairman of the Committee on Rules and Administration, I would consider any petition on the subject of the printing of the Chaplain’s prayers. There is historical precedent for plenary consideration by committees of the Congress of constitutional questions relating to the congressional chaplaincies. Between 1850 and 1854, committees in the Senate and House issued three reports in response to petitions from citizens to abolish the congressional chaplaincies. These reports concluded that the election and compensation of chaplains was a permissible practice under the Constitution, and the Supreme Court in the Marsh decision took specific note of the Congress’ consideration of that issue.

Having already given the matter serious consideration, I have also concluded that I should not wait for a formal petition before expressing my personal conclusion that we should not provide for the printing of future volumes of the Chaplain’s prayers. There is no standing provision for the reprinting of the Chaplain’s prayers and a new resolution of the Senate is required for each order to the Public Printer for a new volume of prayers. If the Senate simply were to take no action, the recent printing practice would end. At the least, the issue should be explored fully prior to action on a subsequent printing resolution. As chairman of the committee with jurisdiction, I would act to assure that consideration if the printing question were to arise during the present Congress.

My reason for reaching this conclusion is, briefly, as follows. The foundation of the congressional chaplaincies is their historical continuity, beginning in the colonial legislative assemblies, through the Continental Congress, and from the First Congress to the present. The contemporary strength of the chaplaincies lies in their original purpose of providing a solemn moment in which our collective thoughts are focused on the Chaplain’s prayer for Divine guidance and blessing. I believe that we will best serve the historical institution of the congressional chaplaincies if we conclude that the printing of compilations of these prayers at public expense, a 20th century addition, risks detracting from the central purpose of the chaplaincies. In saying this I am not unmindful of the costs of printing. The Government Printing Office printed 2,045 copies of the compilation of prayers for the 98th Congress and estimates that the cost of that printing alone was $24,530. Of course, the daily prayers should continue to be printed in the Congressional Record where they are part of a full account of our daily proceedings.

I should emphasize that I am not questioning the constitutional right of the Senate to reprint portions of its daily proceedings. If the courts were to decide the merits of the plaintiff’s challenge to the printing of Senate documents, the courts would be required to consider the delicate issue presented when a coordinate branch is asked to enjoin the printing of congressional proceedings. In response to such a lawsuit, the courts must weigh the separation of powers restraints on judicial oversight of congressional printing. Within the Senate, however, we enjoy wide latitude to examine our own practices. We are the appropriate forum for resolving these problems. It is for this reason that I have decided I should advise the Senate about the issue and about my conclusion that we should terminate this recent and costly addition to an important historical tradition which is of great significance to us.

ORDER

For reasons stated in the accompanying Memorandum, it is this 26th day of November, 1985, hereby

ORDERED: that plaintiff’s complaint should be, and hereby is, DISMISSED without prejudice.

      . S.Res. 375, 376, 98th Cong., 2d Sess. (1984) (printing of compilations for the 97th and 98th Congresses).

      . Notice to Counsel (filed September 6, 1985).

      . See also Marsh, supra, 103 S.Ct. at 3334 n. 10.

      . One avenue of relief was for the Members to convince other Members to insist on enforcement of existing rules. The other solution was for the Members to urge their colleagues to adopt a "rule of verbatim accuracy’ such as plaintiffs were asking the Court to mandate.


author: CACHERIS, District Judge.

text:
    Harold E. MALONE, Plaintiff, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, et al., Defendants. COMMONWEALTH OF VIRGINIA, Plaintiff, v. AMALGAMATED TRANSIT UNION, LOCAL 689, et al., Defendants.
    Civ. A. Nos. 85-0419-A, 85-0721-A.
    United States District Court, E.D. Virginia, Alexandria Division.
    Nov. 26, 1985.

      Lawrence E. Lindeman, Alexandria, Va., for Malone.
    John S. Battle, Jr., McGuire, Woods, & Battle, William G. Broaddus, Atty. Gen., Richmond, Va., for Com. of Va.
    Carol Sigmond, Sara E. Lister, Gen. Counsel, Washington, D.C., for Washington Metropolitan Area Transit Authority.
    Jacob A. Kamerow, Kamerow & Kamerow, Alexandria, Va., for Local 689.
   MEMORANDUM OPINION

CACHERIS, District Judge.

This matter is before the court on Defendants’ Washington Metropolitan Area Transit Authority (“WMATA”) and Amalgamated Transit Union, Local 689 (“Local 689”), Motions for Summary Judgment. The parties agreed at the oral hearing on September 13, 1985, that the two cases were ripe for summary judgment. For the reasons set forth below, WMATA’s and Local 689’s Motions for Summary Judgment are granted.

I

On August 16, 1983, WMATA and Local 689 entered into a collective bargaining agreement which included a union shop clause, denominated as Section 103(a). Section 103(a) of the agreement states:

On and after the thirtieth day following the effective date of this contract, all of the employees of the Authority included in the bargaining unit ... shall become and remain members in good standing of the union as a condition precedent to continued' employment____

Union Exhibit 1. Union shop clauses such as Section 103(a) are outlawed in Virginia under the Virginia Right to Work Act. Va. Code Ann. Section 40.1-58 et seq. (Repl.Vol.1981). Virginia Code § 40.1-62 specifically provides:

§ 40.1-62. Employer not to require payment of union dues, etc. — No employer shall require any person, as a condition of employment or continuation of employment, to pay any dues, fees or other charges of any kind to any labor union or labor organization.

Va.Code Ann. § 40.1-62 (Repl.Vol.1981).

On or about March 15, 1985, Harold E. Malone, a railcar mechanic employed by WMATA at its facilities located in Alexandria, Virginia, filed an action in the Circuit Court for the City of Alexandria seeking a declaratory judgment holding that the provisions of the Virginia Right to Work Act, (Va.Code Ann.Section 40.1-58 et seq. apply to the collective bargaining agreement between WMATA and Local 689. Plaintiff Malone states in his Complaint that he wants to cease paying his union dues, but is fearful that if he does so his employment will be terminated. Therefore, Malone needs to know whether the provisions of Section 40.1-58 et seq. of the Code of Virginia apply to employees of WMATA who, like himself, live and work in Virginia. Obviously, if the Virginia law does apply, then Malone will not have to continue to pay union dues. On or about April 4, 1985, WMATA acted to remove the case to this Court and filed its answer.

On July 11, 1985, the Commonwealth of Virginia filed an action in the Circuit Court for Arlington County, seeking a declaratory judgment that the union shop clause, Section 103(a) of the WMATA-Local 689 agreement, violates the Virginia Right to Work Act. On or about June 24, 1985, WMATA acted to remove that action to this court and simultaneously filed its answer and moved to consolidate it with plaintiff Malone’s action pursuant to Rule 42(a) of the Federal Rules of Civil Procedure. Thereafter, on June 28, 1985, WMA-TA moved to join Local 689 as a defendant in Malone v. WMATA. On July 3, 1985, this court consolidated the actions and directed that Local 689 be joined as a party defendant in Malone v. WMATA. These consolidated actions are now before the court on defendants WMATA and Local 689’s Motions for Summary Judgment.

II

The basic facts are not in dispute.

WMATA was created by an interstate compact among the states of Maryland and Virginia and the District of Columbia with the consent of the Congress as a common agency and instrumentality of the signatories to plan, finance, develop, construct and operate a subway system in the Washington Metropolitan Area. P.L. 89-774; D.C.Code §§ 1-2431 and 2438. WMATA commenced functioning on September 30, 1967. (Remund Affidavit). In 1972, the signatories and Congress adopted the National Capital Transportation Act of 1972, Publ.L. No. 92-349, 86 Stat. 464, which authorized WMATA to acquire and operate bus services previously provided by privately owned companies.

The Authority is governed by a Board of Directors. There are six voting members, two representing each signatory and six alternates, two representing each signatory. P.L. 89-774(5) as amended by P.L. 92-349, codified at D.C.Code § 1-2431(5). Since September 30, 1967, Virginia, through its agency, the Northern Virginia Transportation Commission, has had representatives on the WMATA Board of Directors. Each signatory through its representatives has the power to veto any action of the WMATA Board of Directors. (Remund Affidavit).

Presently WMATA has approximately 5,700 employees in jobs covered by the WMATA Local 689 labor agreement. Approximately 750 of these employees report to work in Virginia. (Babic Affidavit).

WMATA employees represented by Local 689 select work sites under the “pick” provisions of the current labor agreement. Whether the employee receives that particular work site is dependant on seniority in relationship to other similarly classified employees. No employee is assured of working at his assigned work site. Employees may be moved, without their consent, to work locations throughout the system as the need requires.

WMATA has twenty eight reporting locations for employees represented by ATU Local No. 689. Of these only six (6) are located in Virginia. They are:

Arlington Bus Division
707 N. Randolph Street
Arlington, Virginia
Central Maintenance Facility
3101 Eisenhower Avenue
Alexandria, Virginia
Alexandria S & I Shop and Yard
3401 Eisenhower Avenue
Alexandria, Virginia
Four Mile Run Bus Division
3501 Glebe Road
Arlington, Virginia
Alexandria Bus Division
600 N. Royal Street
Alexandria, Virginia
System Maintenance Facility
195 Telegraph Road
Alexandria, Virginia

Additionally, some rail operation personnel report to National Airport before going to work locations located in either the District of Columbia or Maryland. (Babic Affidavit).

WMATA has complied with the Virginia Workmen’s Compensation Act, Va.Code § 65.1-1 et seq. (1980 Repl.Volume), for those employees who had a primary work site in Virginia. (Transcript of September 13, 1985, p. 23).

Plaintiff Harold E. Malone has been employed by defendant Washington Metropolitan Area Transit Authority (WMATA) since September 29, 1982, as a railcar mechanic. His current assigned work location is in Alexandria, Virginia. He is subject to the pick and work assignment provisions described above. Mr. Malone resides in the Commonwealth of Virginia. (Babic Affidavit).

Defendants WMATA and Local 689 are parties to a collective bargaining agreement which provides in part:

On and after the thirtieth day following the effective date of this contract, all of the employees of the Authority including the bargaining unit as defined in Section 102 hereof shall become and remain members in good standing of the Union as a condition precedent to continued employment, and the Union agrees to receive into the membership all such eligible employees according to the laws of the Union. This section shall become operative as to new employees thirty (30) days from the date of their appointment.

WMATA-Local 689 Agreement, Section 103(a). (Union Exhibit # 1). This agreement was approved by WMATA’s Board of Directors and executed on September 16, 1983. It covers the period May 1, 1983, through April 30, 1986.

In order for WMATA employees to become and remain members in good standing in Local 689, under Section 103(a) of the labor agreement they must, in accordance with Local 689’s By-Laws and the Constitution and General Laws of the International Amalgamated Transit Union, pay to Local 689 an amount of money equivalent to the initiation fee, monthly dues and assessments regularly paid by Local 689 members. Such funds are used by the Union for collective bargaining purposes. (Affidavit of James M. Thomas, Jr., Plaintiff’s Complaint, ¶ 5).

Ill

The first question before the court is whether the WMATA compact is federal law and thus controlling by its terms over the Virginia Right to Work Statute by way of the Supremacy Clause. In Cuyler v. Adams, 449 U.S. 433, 101 S.Ct. 703, 66 L.Ed.2d 641 (1981) the Supreme Court held that the test for whether an interstate compact becomes federal law is whether it “is a congressionally sanctioned interstate compact within Art. I, § 10 of the Constitution.” 449 U.S. at 439, 101 S.Ct. at 707. “Where Congress has authorized the States to enter into a cooperative agreement, and where the subject matter of that agreement is an appropriate subject for congressional legislation, the consent of Congress transforms the States’ agreement into federal law under the Compact Clause.” 449 U.S. at 440, 101 5. Ct. at 707. Following Cuyler, to determine whether the WMATA compact is federal law, the court must find that (1) there was congressional legislation authorizing the WMATA compact, and (2) such legislation was an appropriate subject for congressional legislation. The court’s analysis on 'this issue is made easy by the Fourth Circuit’s decision in WMATA v. One Parcel of Land in Montgomery County, Maryland, 706 F.2d 1312 (4th Cir.1983). In One Parcel of Land, the Fourth Circuit ruled that WMATA’s “quick take” condemnation powers pursuant to § 82 of the compact were superior to the Maryland Constitution which expressly prohibited “quick take” condemnations. The Fourth Circuit employed the Cuyler test in finding that the WMATA compact became federal law when consented to by Congress:

Applying the Cuyler test here, there is, of course, no dispute that Congress enacted a law consenting to the WMATA Compact. See Pub.L. No. 89-774, 80 Stat. 1324 (1966), reprinted at [1966] U.S.Code Cong. & Ad.News 1547-79. Nor can there be any doubt that this was an appropriate area for federal legislation. WMATA is charged with developing and operating a mass transit system for the District of Columbia and the surrounding Maryland and Virginia suburbs. As such, WMATA’s activities have substantial impact on interstate commerce and are appropriate for congressional legislation under the Commerce Clause, U.S. Const, art. I, § 8, cl. 3. In addition, WMATA’s powers to construct and operate a mass transit system primarily located in the District of Columbia undoubtedly fall within congressional jurisdiction to legislate for the District of Columbia, U.S. Const. art. I, § 8, cl. 17. We conclude, therefore, that the two-part test from Cuyler is satisfied here, and that the WMATA Compact became federal law when consented to by Congress.

Id. at 1317-1318. The court finds One Parcel of Land to be controlling on this issue and therefore finds that the WMATA compact is federal law.

Because congressionally sanctioned interstate compacts within the meaning of Art. 1 § 10 of the Constitution are federal law, state laws inconsistent with the terms of these compacts are unenforceable as to agencies formed by these compacts. WMATA v. One Parcel of Land, 706 F.2d 1312, 1317-1319 (4th Cir.1983); West Virginia ex rel. Dyer v. Sims, 341 U.S. 22, 32-33, 71 S.Ct. 557, 562-563, 95 L.Ed. 713 (1951) (Reed, J. concurring opinion), see also Bush v. Muncy, 659 F.2d 402 (4th Cir.1981) (holding provision of congressionally sanctioned compacts prevail over state law). It is therefore clear that if the WMATA compact authorizes WMATA to enter into labor agreements which contain union shop clauses, the Virginia Right-to-Work Law will not be applicable to any WMATA employees. The second question before this court is, therefore, whether the WMATA compact authorizes WMATA to enter into labor agreements which contain union shop clauses.

Defendants argue that Section 66(b) of the compact expressly grants WMATA an exclusive method of resolving labor disputes. They also argue that Sections 12(g) and 77 provide further conclusive evidence that Virginia consented to this delegation of its authority concerning labor matters.

Plaintiffs argue that there is no specific provision in the WMATA compact revoking the Virginia Right-to-Work Law and that the signatories and Congress were “promised” that the Virginia-based employees would continue to enjoy the “protection” of Virginia’s Right-to-Work Law. As evidence of this “promise,” plaintiffs provide a statement by S. Harrison Kahn, legal counsel for the Alexandria, Barcroft & Washington Transit Company, made before the House Committee on the Judiciary in 1959. In this statement, Mr. Kahn evinces his understanding that the future interstate compact would not nullify the Virginia Right-to-Work Act for Virginia employees under the compact. See District of Columbia, Maryland, and Virginia Mass Transit Compact: Hearing on H.J., Res. 402 Before Subcomm. No. 3 of the Committee on the Judiciary, 86th Cong., 1st Sess., at 127 (1959).

Plaintiffs further argue that Section 66(e) of the WMATA compact provides evidence that this “promise” was never altered. Section 66(e) provides that no employees of any newly acquired transportation systems shall be placed in any “worse position” than he previously enjoyed with his prior employer. Plaintiffs argue that being subject to a labor agreement containing a union shop clause is “worse” than being subject to a labor agreement containing an open shop clause and therefore Section 66(e) proscribes WMATA from entering into a collective bargaining agreement which contains a union shop clause with employees of newly acquired companies. Plaintiffs contend that because WMATA’s entering into a collective bargaining agreement containing a union shop clause is proscribed in these instances by Section 66(e), it must be inferred that the signatories and Congress intended to preserve the right to work guarantee for Virginia-based WMA-TA employees.

Plaintiffs finally argue that WMATA’s compliance with the Virginia Workmen’s Compensation Act belies their position that they are not required to follow Virginia law concerning their Virginia-based personnel.

The court finds that the WMATA compact authorizes WMATA to enter into labor agreements which contain union shop clauses. Sections 66(b), 12(g), and 77 provide the proof.

Section 66(b) gives WMATA the authority to enter into collective bargaining agreements with unions over employees’ “working conditions.” It provides:

(b) The Authority shall deal with and enter into written contracts with employees as defined in section 152 of Title 29, United States Code, through accredited representatives of such employees or representatives of any labor organization authorized to act for such employees concerning wages, salaries, hours, working conditions, and pension or retirement provisions.

WMATA Compact, Section 66(b). The Senate Report concerning Section 66 of the compact emphasizes that it should be construed broadly to give WMATA great flexibility in dealing with labor disputes. This is because of the recognition that the curtailment of transportation activities or any work stoppages might seriously reduce the revenues of the Transit Authority necessary to meet outstanding obligations guaranteed by the federal government. See P.L. 92-349, S.Rept. 92-931, 92nd Cong., 2nd Sess., June 28, 1972, pp. 8.

It seems clear from the above that the signatories’ intent was to make WMATA totally self-regulating in the labor area. Its unfettered authority to enter into collective bargaining agreements concerning its employees’ work conditions must necessarily include the right to enter into a union shop agreement. Compare Agesen v. Catherwood, 26 N.Y.2d 521, 311 N.Y.S.2d 886, 260 N.E.2d 525 (1970).

That Virginia delegated its power to enforce its Right-to-Work Law on WMATA employees is further shown in Sections 12(g) and 77 of the compact. Section 12(g) specifically exempts WMATA from the laws of the signatory states and the District of Columbia in employment matters. It provides:

12. In addition to the powers and duties elsewhere described in this Title, and except as limited in this Title, the authority may:
(g) Create and abolish offices, employments and positions (other than those specifically provided for herein) as it deems necessary for the purpose of the Authority, and fix and provide for the qualification, appointment, removal, term, tenure, compensation, pension and retirement rights of its officers and employees without regard to the laws of any of the signatories.
* >(: * $ sj< #

WMATA Compact, Section 12(g).

The plain language of Section 12(g) exempts WMATA employment policies from all regulation by the signatories. Indeed this was expressly acknowledged in the U.S. Senate legislative history: “It is also recognized that the Authority, ... [is] necessarily exempt from the personnel laws of the signatories ...” [added] Rept. 1914, Calendar No. 1457, 89th Cong.2nd Sess., August 24, 1966, p. 22; Accord, Hearings of Subcomt. No. 3, 89th Cong., 2nd Sess., H.J.Res. 1163, July 20, 27 and August 3, 1966, pps. 131-133.

Section 77 is a general exemption provision that provides as follows:

Except as otherwise provided in this Title, any transit service rendered by transit facilities owned or controlled by the Authority and the Authority or any corporation, firm or association performing such transit service pursuant to an operating contract with the Authority, shall, in connection with performance of such service, be exempt from all laws, rules, regulations, and orders of the signatories and of the United States otherwise applicable to such transit service and persons, except that laws, rules, regulations and orders relating to inspection of equipment and facilities, safety and testing shall remain in force and effect; provided, however, that the Board may promulgate regulations for the safety of the public and employees not inconsistent with the applicable laws, rules, regulations, or orders of the signatories of the United States.

WMATA Compact, Section 77. This exemption from regulation has been strictly construed with the courts holding that the plain language of the statute provides that an individual signatory is prohibited from unilaterally subjecting the Authority to any legal burden or duty not specifically established by the compact. See Pepeo v. WMATA, 221 Va. 632, 272 S.E.2d 214, 216 n. 1 (1980) (Holding exemption from regulation not in issue in WMATA’s successful claim for application of state power rate to WMATA). See also Hellmuth v. WMATA 414 F.Supp. 408 (D.Md.1976); Gay Activists Alliance of Washington, S.C., Inc. v. WMATA, C.A. No. 78-2217 (D.D.C.1979); District of Columbia v. WMATA, C.A. No. 74-1682 (D.D.C., May 14, 1975).

The legislature history of the compact further makes clear the congressional intent to exempt WMATA from state laws in personnel matters. See e.g. the prepared statement of Jerome Alper, Esquire, counsel to the Joint Transportation Commission, the drafters of the WMATA compact:

Questions have been raised covering the provisions of paragraph (g) of Sec. 12, authorizing the Authority to create a personnel system without regard to the laws of any of the signatories, and to Sec. 77 of the Compact exempting the Authority and its operations from existing regulation.
These exemptions are necessary in order to enable the Authority to function at all. It must be borne in mind that the Authority is an instrumentality of each of the three signatories and, as such, would be subject to the laws of each of these signatories in the absence of specific provisions in the Compact. Unless the Compact contained an exemption with respect to personnel matters, it is difficult to see how the Authority could not be subject to three separate, distinct and different laws regarding personnel.
* * * * *
With respect to Sec. 77, dealing with regulation, exemption from the separate regulation of the several signatories and the United States is essential. This is necessary not only to avoid conflicting standards of regulation but in order to make the revenue bonds of the Authority saleable. The investment market will insist that the Authority be entirely self-regulating with respect to fares, service and other activities which affect net revenues. This is a practically universal requirement in all revenue bond financing.

Hearings of House of Representatives, Committee of the Judiciary, Subcommittee Report No. 3, 89th Cong., 2nd Sess., H.J. Res. 1163, July 20, 27, August 3, 1966, p. 235. Accord Senate Report 1491, Calendar No. 1457, p. 22, 89th Cong.2nd sess., August 24, 1966.

In light of the foregoing, it need hardly be said that the court finds the plaintiffs’ arguments unpersuasive. The simple answer to their assertion that they were “promised” that the Virginia Right-to-Work Statute would remain applicable to Virginia employees of WMATA is that they should have gotten it in writing. The plain language of the WMATA compact shows no evidence of this promise to preserve the Virginia Right-to-Work Statute, but rather clearly evinces an intent to the contrary.

In summary, the court finds that the WMATA compact clearly grants the Authority the power to enter into collective bargaining agreements with Local 689 over employees working conditions. Implicit in its right to enter into collective bargaining agreements, WMATA has the authorization to enter into a union shop agreement such as Section 103(a) of its contract with Local 689. Because the WMATA compact is federal law, under the Supremacy Clause of the United States Constitution, the terms of the collective bargaining agreement must be given effect, the Virginia Right-to-Work Statute notwithstanding. WMATA v. One Parcel of Land, 706 F.2d 1312 (4th Cir.1983). Defendants’ Motions for Summary Judgment will therefore be granted.

An appropriate Order shall issue.

      . The WMATA compact is codified at Va.Code §§ 56-529, 530. For legislation by Congress, see P.L. 86-794, 74 Stat. 1031; P.L. 87-767, 76 Stat. 764; P.L. 89-774, 80 Stat. 1324; P.L. 92-349, 86 Stat. 464.

      . All prior labor agreements between WMATA and Local 689 dating back to November 1, 1972, also contained union shop provisions identical to Section 103(a).

      . The court notes in passing that clearly this case does not involve a "political question” which can only be resolved through legislative action. The interpretation of an interstate compact presents a question of federal law which is properly addressed to the Federal Courts. Cuyler v. Adams, 449 U.S. 433, 422, 101 S.Ct. 703, 708-709, 66 L.Ed.2d 641 (1981). For analysis of the "political question" doctrine see Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962).

      . U.S. Const. Art. VI, cl. 2. provides:
      This Constitution, and the laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made under the Authority of the United States, shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

      . The compact clause Art I, § 10 cl. 3 provides, “No State shall, without the Consent of Congress, ... enter into any Agreement or Compact with another State____”

      . The court’s finding is also supported by two district court decisions concerning WMATA. In Hellmuth v. WMATA, 414 F.Supp. 408 (D.Md.1976) the court held that the Maryland Public Information Act was not applicable to WMATA. In Gay Activists Alliance of Washington v. WMATA, C.A. No. 78-2217 (D.D.C.1979) (unpublished) the court held that under the interstate compact WMATA was not subject to the D.C. Human Rights Act of 1977.

      . This question could also be posed in the form of whether under the terms of the WMATA compact, Virginia delegated its power to enforce its Right-to-Work Law as applied to WMATA employees.

      . Alexandria, Barcroft & Washington Transit Company was a privately owned bus carrier later purchased by WMATA.

      . Section 66(e) provides in pertinent part:
      ... No employee of any acquired transportation system who is transferred to a position with the Authority shall by reason of such transfer be placed in any worse position with respect to workmen’s compensation, pension, seniority, wages, sick leave, vacation, health and welfare insurance or any other benefits, than he enjoyed as an employee of such acquired transportation system.

      . The court does not give much credence to the plaintiffs’ interpretation of Section 66(e), nor to the fact of WMATA’s compliance with the Virginia Workmens Compensation Laws. The court finds plaintiffs’ arguments concerning Section 66(e) to be strained at best. WMATA’s compliance with Virginia’s Workmens Compensation Laws also has no bearing on this case. Under Section 80 of the WMATA compact WMATA waives its immunity from suits in accordance with the law of the applicable jurisdiction. The Virginia Workmens Compensation Law is basically a tort statute which under Section 80 the authority has acknowledged it will honor. Unlike the situation concerning the Right-to-Work Statute, the WMATA compact expressly states that it will honor the tort laws of the signatories.

      . Gerald L. Baliles, the Attorney General of Virginia appears to have appropriately summarized Virginia’s position in a letter to the National Right to Work Committee dated January 17, 1984. Mr. Baliles states, "the question is not one of enforcement of Virginia’s Right-to-Work law; instead, it is one of recognition that the METRO compact approved by the Commonwealth years ago failed to include Virginia METRO workers under the Virginia Right-to-Work law.” (Union Exhibit 4).