Rules of Practice in Proceedings Before the House Commission on Congressional Mailing Standards
ANALYSIS OF RULES
These rules of practice are issued by the House Commission on Congressional Mailing Standards of the U.S. House of Representatives, hereinafter referred to as the Commission, pursuant to authority under section 5 of the act of December 18, 1973 (87 Stat. 742; Public Law 93-191).
These rules of practice shall be applicable in all proceedings before the Commission.
These rules do not preclude the disposition of any matter by the Commission prior to any proceeding or hearing, if it determines that there is no substantial reason to believe that a violation has or is about to occur as alleged in the complaint, or by agreement between the parties either before or after the filing of a complaint when time, the nature of the proceeding, and the public interest permit.
The offices of the Commission and the officials mentioned in these rules are located at the House of Representatives, 1216 Longworth House Office Building, Washington, D.C. 20515, and are open Monday through Friday except holidays from 9:00 am to 5:00 pm.
- Any person who believes that a person authorized to use the frank is about to violate or, within the immediately preceding period of 1 year, has violated the use of the frank under section 3210, 3211, 3212, 3213(2) or 3218, or in connection with the operation of section 3215, of title 39, United States Code, may file with the Commission a signed complaint which names the person involved; states the legal authority and jurisdiction under which the proceeding is initiated; states the facts in a manner sufficient to enable the person named therein to make answer thereto; recommends the issuance of an appropriate order; sets forth the address of the complainant and the name and address of his attorney, if any.
- All allegations in the pleadings shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances, and a paragraph may be referred to by number in all succeeding pleadings. Each complaint founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth.
- Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.
- The person so named in the complaint shall be known as the respondent and the person filing the complaint shall be known as the complainant.
- The Commission shall cause a copy of the complaint to be served upon the respondent or his agent and it shall issue a notice stating the date for filing an answer, which shall not exceed 10 days from the service of the complaint, and a reference to the effect of failure to file an answer. (See rule 10)
- Service of all papers shall be effected by mailing the same, postage prepaid registered, or certified mail, return receipt requested, or by causing said papers to be personally served on the parties or the respective agents, as appropriate, by an authorized representative of the Commission. In the case of personal service the person making service shall secure from the parties of their agents, a written acknowledgement of receipt of said papers, showing the date and time of such receipt. Said acknowledgement (or the return receipt where service is effectuated by mail) shall be made a part of the record of the proceedings. The date of delivery, as shown by the acknowledgement of personal service or the return receipt, shall be the date of service.
Upon the filing of the respondent’s answer, if the Commission determines that there is reasonable justification for a complaint filed under rule 5, it shall issue a notice of hearing stating the time and place of the hearing and a reference to the effect of failure to appear at the hearing (see rule 10). Except for good cause shown, the hearing date shall be within 30 days of the date of the filing of the complaint.
- Each party shall file with the Commission, pleadings, motions, orders, and other documents for the record. The Commission shall cause copies to be served promptly to other parties to the proceeding and to the hearing officer.
- The parties shall submit four copies of all documents unless otherwise ordered by the hearing officer. One copy shall be signed as the original.
- Documents shall be dated and state the title of the proceeding. Any pleading or other document required by order of the hearing officer to be filed by a specified date shall be delivered to the Commission on or before such date. The date of filing shall be entered thereon by the Commission.
- The answer shall contain a concise statement admitting, denying, or explaining each of the allegations set forth in the complaint.
- Any facts alleged in the complaint which are not denied or are expressly admitted in the answer may be considered as proved, and no further evidence regarding these facts need be adduced at the hearing.
- The answer shall be signed personally by the respondent except for good cause shown.
- The answer shall set forth the respondent’s address and the name and address of his attorney.
- The answer shall affirmatively state whether the respondent will appear in person or by his attorney at the hearing.
- If the respondent does not desire to appear at the hearing in person or by his attorney he may request that the matter be submitted for determination pursuant to paragraph (b) of rule 10.
- If the respondent fails to file an answer within the time specified, he shall be deemed in default, and to have waived a hearing and further procedural steps. The Commission shall thereafter issue an order without further notice to the respondent.
- If the respondent files an answer but fails to appear at the hearing, the hearing officer shall receive complainant’s evidence and submit proposed findings of fact and conclusions of law to the Commission.
- If the complainant or his attorney fails to appear at the hearing, the hearing officer shall receive the respondent’s evidence and submit proposed findings of fact and conclusions of law to the Commission.
- Amendments proposed prior to the hearing shall be filed with the Commission. Amendments proposed thereafter shall be filed with the hearing officer.
- By consent of the parties, a pleading may be amended at any time. Also, a party may move to amend a pleading at any time prior to the close of the hearing and, provided that the amendment is reasonably within the scope of the proceeding initiated by the complaint, the hearing officer shall make such ruling on the motion as he deems to be fair and equitable to the parties.
- When issues not raised by the pleadings but reasonably within the scope of the proceedings initiated by the complaint are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendments as may be necessary to make the pleadings conform to the evidence and to raise such issues shall be allowed at any time upon the motion of any party.
- If a party objects to the introduction of evidence at the hearing on the ground that it is not within the issues made by the pleadings, but fails to satisfy the hearing officer that an amendment of the pleadings would prejudice him on the merits, the hearing officer may allow the pleadings to be amended and may grant a continuance to enable the objecting party to rebut the evidence presented.
- The hearing office may, upon reasonable notice and upon such terms as are just, permit service of a supplemental pleading setting forth transactions, occurrences, or events which have happened since the date of the pleading sought to be supplemented and which are relevant to any of the issues involved.
Continuances and extensions will not be granted by the hearing officer except for good cause shown.
Hearings are held at the U.S. Capitol, Washington, D.C. 20515, or other locations designated by the Commission.
Not later than 7 days prior to the date fixed for the hearing, a party may file a request that a hearing be held to receive evidence on this behalf at a place other than that designated for hearing in the notice. He shall support his request with a statement outlining:
- The evidence to be offered in such place;
- The names and addresses of the witnesses who will testify; and
- The reasons why such evidence cannot be produced in Washington, D.C.
The Commission shall give consideration to the convenience and necessity of the parties and the relevancy of the evidence to be offered.
- The parties may appear and be heard in person or by attorney.
- When a party is represented by an attorney, all pleadings and other papers subsequent to the complaint shall be mailed to the attorney.
- Parties must promptly file a notice of change of attorney.
- A hearing officer may be appointed by the Commission to preside over any proceeding or hearing hereunder.
- The hearing officer shall have authority to:
- Administer oaths and affirmations;
- Examine witnesses;
- Rule upon offers of proof, admissibility of evidence, and matters of procedure;
- Order any pleadings amended upon motion of a party at any time prior to the close of the hearing;
- Maintain discipline and decorum and exclude from the hearing any person acting in an indecorous manner;
- Require the filing of briefs or memoranda of law on any matter upon which he is required to rule;
- Order prehearing conference for the purpose of the settlement or simplification of issues by the parties;
- Order the proceeding reopened at any time prior to a final decision for the receipt of additional evidence; and
- Take any other action authorized by the Commission.
- Except as otherwise provided in these rules, the rules of evidence governing civil proceedings in matters not involving trial by jury in the courts of the United States shall govern. However, such rules may be relaxed to the extent that the hearing officer deems proper to insure a fair hearing. The hearing officer shall exclude irrelevant, immaterial, or repetitious evidence.
- Testimony shall be under oath or affirmation and witnesses shall be subject to cross-examination.
- Agreed statements of fact may be received in evidence.
- Official notice or knowledge may be taken of the types of matters of which judicial notice or knowledge may be taken.
- Authoritative writings of the sciences may be submitted in evidence, but only through the testimony of expert witnesses or by stipulation.
- The written statement of a competent witness may be received in evidence provided that such statement is relevant to the issues that the witness shall testify under oath at the hearing, that the statement is in all respects true and in the case of expert witnesses, that the statement correctly states his opinion or knowledge concerning the matters in question.
- A party who objects to the admission of evidence shall make a brief statement of the grounds for the objection. Formal exceptions to the rulings of the hearing officer are unnecessary.
At the request of any party, subpoenas for attendance of witnesses at a hearing may be issued over the signature of the chairman of the Commission or of any member designated by him or by the Commission and may be served by such person or persons as may be designated by such chairman or member.
Fees and expenses for witnesses for either party or for depositions requested by either party shall not be paid by the Commission.
- Not later than 5 days after the filing of respondent’s answer, any party may file application with the Commission for the taking of testimony by deposition. In support of such application the applicant shall submit under oath or affirmation a statement setting out the reasons why such testimony should be taken by deposition, the time and the place, and the name and address of the witness whose deposition is desired, the subject matter of the testimony of each witness, its relevancy, and the name and address of the person before whom the deposition is to be taken.
- If the application be granted, the order for the taking of the deposition will specify the time and place thereof, the name of the witness, the person before whom the deposition is to be taken, and any other necessary information.
- Each witness testifying upon deposition shall be duly sworn, and the adverse party shall have the right to cross examine. The questions and answers, together with all objections, shall be reduced to writing and, unless waived by stipulation of the parties, shall be read to and subscribed by the witness in the presence of the deposition officer who shall certify it in the usual form. The deposition officer shall file the testimony taken by deposition as directed in the order. The deposition officer shall put the witness on oath. All objections made at the time of examination shall be noted by the deposition officer and the evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, a party may transmit written interrogatories to the officer, who shall propound them to the witness and record the answers verbatim. Objections to relevancy or materiality of testimony; or to errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of the parties; and errors of any kind which might be obviated, cured, or removed if promptly presented, are waived unless timely objection is made at the taking of the deposition.
- At the hearing, any part or all of the deposition may be offered in evidence by any party who was presented or represented at the taking of the deposition or who had notice thereof. If the deposition is not offered and received in evidence, it shall not be considered as a part of the record in the proceeding. The admissibility of depositions or parts thereof shall be governed by the rules of evidence.
- The party requesting the deposition shall pay all fees required to be paid to witnesses and the deposition officer, and shall provide an original and one copy of the deposition for the official record, and shall serve one copy upon the opposing party.
- Within the United States or within a territory or insular possession, subject to the dominion of the United States, depositions may be taken before an officer authorized to administer oaths by the laws of the United States or of the place where the examination is held.
- Depositions may also be taken and submitted on written interrogatories in substantially the same manner as depositions taken by oral examination. When a deposition is taken upon written interrogatories and cross-interrogatories none of the parties shall be present or represented, and no person, other than the witness, a stenographic reporter, and the officer shall be present at the examination of the witness, which fact shall be certified by the officer, who shall propound the interrogatories and cross-interrogatories to the witness in their order and reduce the testimony to writing in the witness’ own words.
- Hearings shall be stenographically reported under the supervision of the hearing officer. Argument upon any matter may be excluded from the transcript by order of the hearing officer. A copy of the transcript shall be a part of the record and the sole official transcript of the proceeding. Copies of the transcript shall be supplied to the parties to the proceeding at their own expense by the reporter. Copies of parts of the official record other than the transcript may be obtained by the parties from the reporter upon the payment to him of a reasonable price therefor.
- Changes in the official transcript may be made only when they involve errors affecting substance and then only in the manner herein provided. No physical changes shall be made in or upon the official transcript, or any part thereof, which have been filed with the record. Within 5 days after the receipt by any party of a copy of the official transcript, or any part thereof, he may file a motion requesting correction of the transcript. Opposing counsel shall, within such time as may be specified by the hearing officer, notify the hearing officer in writing of his concurrence or disagreement with the requested corrections. Failure to interpose timely objection to a proposed correction shall be considered to be concurrence. Thereafter, the hearing officer shall by order specify the corrections to be made in the transcript. The hearing officer on his own initiative may order corrections to be made in the transcript with prompt notice to the parties of the proceeding. Any changes ordered by the hearing officer other than by agreement of the parties shall be subject to objection and exception.
- Each party to a proceeding, except one who fails to appear at the hearing or indicates that he does not desire to appear, may, unless at the discretion of the hearing officer such is not appropriate, submit proposed findings of fact, conclusions of law, and supporting reasons either in oral or written form in the discretion of the hearing officer. The hearing officer may also require parties to any proceeding to submit proposed findings of fact and conclusions of law with supporting reasons. Unless given orally, the date set for filing of proposed findings of fact and conclusions of law shall be within 5 days after the delivery of the official transcript to the Commission who shall notify both parties of the date of its receipt. The filing date for proposed findings shall be the same for both parties. If not submitted by such date, or unless extension of time for the filing thereof is granted, they will not be included in the record or given consideration.
- Except when presented orally before the close of the hearing, proposed findings of fact shall be set forth in serially numbered paragraphs and shall state with particularity all evidentiary facts in the record with appropriate citations to the transcript or exhibits supporting the proposed findings. Each proposed conclusion shall be separately stated.
- Findings and conclusions by hearing officer. – Within 20 days after any proceeding or hearing, as appropriate, has been concluded, the hearing officer shall submit to the Commission proposed findings of fact and conclusions of law, with the reasons therefor, upon all the material issues of fact or law presented on the record.
- Final decision by the Commission. – The Commission shall render a final decision within 30 days after any proceeding or hearing, as appropriate, has been concluded or, in the event that no hearing or other proceeding is held, within 30 days after the answer to a complaint is filed. Such decision shall include findings and conclusions, with the reasons therefor, upon all the material issues of fact or law presented on the record, and the appropriate order or denial thereof.
A party may file a motion for reconsideration of a final Commission decision within 10 days after receiving it or within such longer period as the Commission may fix. Each motion for reconsideration shall be accompanied by a brief clearly setting forth the points of fact and of law relied upon in support of said motion. The Commission shall transmit a copy of the motion and brief to the opposing party, who shall file a written reply brief within 10 days after filing or such other period as the Commission may fix. A copy of the reply brief shall be sent to the moving party by the Commission.
A party against whom an order has been issued may file an application for modification or revocation thereof. The Commission shall transmit a copy of the application to the opposing party, who shall file a written reply within 10 days after filing or such other period as the Commission may fix. A copy of the reply shall be sent to the applicant by the Commission. Thereafter, an order granting or denying such application will be issued by the Commission.
A designated period of time under these rules excludes the day the period begins, and includes the last day of the period unless that last day is a Saturday, Sunday, or legal holiday, in which event the period runs until the close of business on the next business day.
The transcript of testimony together with all pleadings, orders, exhibits, briefs, and other documents filed in the proceeding shall constitute the official record of the proceeding.
The Commission maintains for public inspection in its offices copies of all final decisions, including a record of the votes on any question on which a record vote is taken. The Commission also maintains a complete official record of every proceeding, all other records, data and files of the Commission which shall be the property of the Commission and shall be kept in the offices of the Commission or such other places as the Commission may direct.
The following forms are intended for illustration only. They are limited in number, since no attempt has been made to furnish a manual of forms.
These forms do not cover every possible situation involving an allegation of a violation of the franking laws. They may be used as a guide for the preparation of pleadings by prospective parties in proceedings before the Commission
Each pleading, motion, or other paper should have a caption similar to that shown on the forms hereinafter set forth with the designation of the particular paper substituted for the word “complaint.”
Form 1. Complaint
HOUSE COMMISSION ON CONGRESSIONAL MAILING STANDARDS
The complainant, for his complaint against the respondent, states:
1) That I, A.B., reside at [Street Address], [City], [State], (and I have retained _____, Esq., with offices at, [Street Address], [City] , [State], to represent me in all proceedings on this matter).
2) That this complaint arises under the franking laws extended to Members of the House of Representatives of the United States as hereinafter more fully appears.
3) That on or about the _____ day of __________, 20____, the respondent caused to be mailed, under his frank, to various persons in the ______ Congressional District of the State of ___________________, a letter (a copy of which is attached here to as Exhibit #1 and made a part here of) soliciting political support for his candidacy for the office of _____________________ in the State of ___________________ to be decided at a (general) (primary) election to be held in the State of ____________________ on the _____ day of ___________________, 20____.
4) That the mailing of this letter is a violation of the said franking laws, and, more particularly, Section 3210(a)(5)(C), title 39, United States Code.
5) That on or about the ______ day of ________________, 20______, the respondent caused to be mailed, under his frank, a mass mailing to his constituents in the _________ District of the State of __________________ consisting of a newsletter (a copy of which is attached hereto as Exhibit #2 and made a part hereof).
6) That the contents of the newsletter consist of certain printed matter which solicits political support for the respondent in violation of the said franking laws, and, more particularly, Section 3210(a)(5)(C), title 39, United States Code
7) Further, that the said newsletter contains a number of photographs which occur with such frequency and the sole purpose of which is to advertise the Member rather than illustrate the text and is in violation of the said franking laws, and, more particularly, Section 3210(a)(3)(J), title 39, United States Code.
8) Further, that the respondent is a candidate for the office of ______________________ in the State of ___________________ to be decided at a (general)(primary) election on _____ day of _______________, 20___ and that the said newsletter was mailed less than 90 days before such election in violation of the said franking laws, and, more particularly, Section 3210(a)(5)(D), title 39, United States Code.
9) That on or about the _____ day of __________________, 20_____, the respondent caused to be mailed, under his frank, to mail matter consisting of a [Description of Matter Mailed] containing [State the Contents] [which violate franking laws] (a copy of which is attached which violate the franking laws) hereto as Exhibit #3 and made a part hereof) in violation of the said franking laws, and, more particularly, Section _______________, title 39, United States Code.
Wherefore, the complainant demands that the respondent be found in violation of the franking laws as hereinbefore alleged and that the Commission order such other relief as is proper and lawful.
Signed at __________________________
City and State
this ________ day of __________________, 19_____
Form 2. Answer 1/
HOUSE COMMISSION ON CONGRESSIONAL MAILING STANDARDS
The respondent, answering the complaint herein, states:
- That the respondent does not have sufficient information to either deny or admit the allegations in paragraph 1 of the complaint herein.
- That the respondent denies each and every allegation in paragraphs 2 and 4 of the complaint herein.
- That the respondent denies those allegations in paragraphs 3 and 6 of the complaint which state that the mail matter involved solicited political support.
- That the respondent admits the allegations contained in paragraph 5 of the complaint herein.
- That the respondent denies those allegations in paragraph 7 of the complaint which state that the photographs in the subject newsletter tend to advertise the Member rather than illustrate the accompanying text.
- That the respondent denies those allegations in paragraph 8 of the complaint which state that the newsletter was mailed less than 60 days before the election to be held on the day of _____________________, 20________.
- That the respondent denies those allegations in paragraph 9 of the complaint which [state the allegations] [to the complaint which are denied].
Wherefore, the respondent demands the complaint in its entirety be dismissed.
Signed at ____________________________
City and State
this _____ day of ___________________, 20_____
NOTE: If the respondent is to be represented by an attorney, a separate paragraph stating the name of the attorney should be added to the answer.