they had as significant an interest in the action as the state legislators did, and that a decision in this case in favor of the plaintiffs would nullify the votes extending the ratification period which were cast by the Members. They then concluded their argument by asserting:

The courts have held that individual members of Congress
would have standing in a case such as this. In Kennedy v.
Sampson, 511 F. 2d 430 (D.C. Cir. 1974), Senator Kennedy
sought a declaratory judgment that a bill for which he had
voted had become law despite a pocket veto. The court rec-
ognized the Senator's standing on the theory that an act
which injures the institution of Congress causes each of its
members a “derivative ... but nonetheless substantial”
personal injury ...

At issue in this case, as in Kennedy, is the effectiveness
of the votes of individual members of Congress in favor of

legislation which has not as yet become law. (Id. at 6-7] On December 5, 1979, the plaintiffs opposed the motion of the 79 Members to intervene. They asserted that the application was untimely and would cause undue delay. Also, they argued that to allow the proposed intervention would burden the case with unnecessary participants and unduly complicate issues which were already adequately presented by the parties:

In the instant case, the only branch of government which may frustrate congressional intent is the judicial branch of the government, to-wit, this court. The Legislative and Executive Branches are as one in this matter. The seventy-nine proposed intervenors apparently believe that the state legislators who are plaintiffs in this action are going to threaten or curtail congressional power over the amendment process. Clearly, only the court can render a decision which would curtail such congressional power and clearly the court could not curtail such power unless the powers exercised by Congress are in contravention of the terms of the Constitution of the United States. (Plaintiffs' Memorandum in Opposition to Motion for Leave to Intervene of Members of the United States House of Repre

sentatives, December 5, 1979, at 5] Further, the plaintiffs alleged that allowing the proposed intervention would reopen the cause of action to applicants for intervention and that there was a high likelihood that Members with views in opposition to those of the proposed intervenors would also attempt to intervene to protect their own votes' effectiveness, resulting in further undue delay.

On December 17, 1979, the plaintiffs submitted a motion for summary judgment as well as a memorandum in opposition to the defendant's motion to dismiss, or in the alternative, for summary judgment. Again, the issues of the case were addressed in two segments. The first dealt with the procedural issues of justiciability, such as standing, the political question doctrine, and ripeness; the second dealt with the issues of extension and rescission.

The plaintiffs asserted that the action was limited to consideration of the constitutional procedural issues arising under Article V, not the validity of the ERA. The declaratory relief sought was for a judgment validating Idaho's rescission of its prior adoption of the amendment; a judgment that the running of the seven-year time limitation had tolled and terminated any prior adoption; and a judgment that the purported extension of time granted by Congress for ratification was unconstitutional and violated the powers of the states of Arizona and Idaho. Also, the plaintiffs advised the court that they wished to abandon their claim that the state legislative power in the amendatory process was in any way derived from the Tenth Amendment to the U.S. Constitution. The power to ratify amendments to the Federal Constitution was a Federal function exercised by the state legislatures by virtue of a special grant of power in Article V, not a reserved power of the states under the Tenth Amendments, said the plaintiffs.

The plaintiffs’ memorandum focused on the issue of determining the allocation of powers and duties between Congress and the state legislatures in the amendment process. The plaintiffs maintained that Article V, the sole constitutional provision governing the amending process, granted Congress the power to propose an amendment, and the state legislatures the power to ratify. Article V marked only the great outline of the amendatory process and did not designate the intricacies and details of that process, the plaintiffs asserted.

Next, the plaintiffs contended that the language of Article V could not be stretched to grant Congress exclusive jurisdiction over the amendment process. They argued that once Congress has proposed an amendment and designated the mode of ratification, it cannot interfere with the ratification process. After a date is set the states decide to adopt, or not to adopt, in reliance on the proposal submitted for their consideration, the plaintiffs maintained.

The plaintiffs argued that the controlling test for ratification by the states was whether there had been a reasonable contemporaneous consensus by the state legislatures. They maintained that whether the contemporaneous consensus existed was ultimately for the courts to determine:

The decision in Dillon v. Gloss strongly implies that the ultimate determination of what is "reasonable" or what is "within reasonable limits” with respect to a ratification period is clearly the province of the judiciary. For example, Congress' power to establish the period for ratification by the states is acknowledged but is subjected to the qualification that it must be exercised "within reasonable limits” (at 396). Such language leaves no doubt but that the court will be the ultimate arbiter of reasonableness in the classical mold of constitutional construction with due deference to the congressional authority. [Plaintiffs' Memorandum in Opposition to Defendant's Motion to Dismiss, or in the Alternative, for Summary Judgment and in Support of Plaintiffs' Motion for Summary Judgment, December 17, 1979, at 61)

On December 26, 1979, the plaintiff-intervenors (Washington state legislators) filed a cross motion for summary judgment which reiterated many of the arguments made by the plaintiffs in their December 17 memorandum.

The 79 Members of the House filed a reply memorandum to the plaintiffs' opposition to their motion to intervene on December 19, 1979. In that reply, the Members asserted that the plaintiffs had not addressed the Members' original argument that since the Washington state legislators were granted leave to intervene, Rule 24(a)(2) required that the Members' motion to intervene also be granted. As to the timeliness issue, the Members stated:

The question of timeliness could be relevant in a case in which voluminous facts are at issue. However, here there is no such problem. No discovery or trial schedule will be interrupted by the participation of petitioners-to-intervene. At the heart of this case are legal issues which present grave constitutional questions. More important than a fast decision is a fully informed decision after the Court has had the opportunity to hear from all concerned parties. We would think the Court would welcome participation by Congress whose power is being challenged here. (Reply Memorandum of Members of United States House of Representatives in Support of Motion for Leave to Intervene,

December 19, 1979, at 5] In response to the plaintiffs' argument that they had not met the burden of proving inadequate representation, the Members argued that their interests in the case would not be adequately protected by the Executive branch:

Petitioners-to-intervene are not ordinary citizens seeking to vindicate the public interest; they are members of one of the three branches of government. The question here is whether one branch of government can adequately represent the interest of a coordinate branch. We submit that, under the circumstances of this case and considering the standard of Rule 24(a)(2), the answer is emphatically no

[Id. at 7] On January 21, 1980, the court denied the motion of the Members to intervene, stating:

[T]here is no reason to believe that the defendant will not adequately defend the action and in particular the interest of the applicant; also, the Motion to Intervene was not timely made, and at this date would, as a practical matter, interfere with the prompt resolution of this

matter. [Memorandum Decision, January 21, 1980, at 2] On February 4, 1980, the defendant opposed the plaintiffs' and plaintiff-intervenors' cross-motion for summary judgment, again arguing that the case presented a nonjusticiable political question because the effect of a state's action and the time for ratification could be determined only by Congress. The defendant also reasserted that the case was not ripe for adjudication and that the plaintiffs lacked standing to maintain the action. Lastly, the defendant realleged that the extension of the ratification deadline by Congress was authorized by Article V and did not require more than a simple majority.

On February 19, 1980, the 79 House Members submitted a motion for reconsideration of the court's denial of their motion to intervene.

The Members asserted that developments since the filing of their original motion to intervene on November 15, 1979 made it clear that the Department of Justice could not adequately represent the interest of Members of Congress. In support of this contention, the Members claimed that in August 1979, the Department of Justice moved the judge to disqualify himself on the ground that he had a religious bias against the ERA and the resolution extending the ERA. The court denied the motion and the Government decided not to appeal the decision denying the motion, or to seek a writ of mandamus directing the court to recuse itself. The Members argued that:

[I]t is essential that the Court's denial of the motion to
recuse itself be reconsidered, or if necessary, reviewed by a
higher court. If allowed to intervene in this action, the pe-
titioners-to-intervene will seek such review of this decision.
Thus, it is clear that the Department of Justice is not ade-
quately defending the interest of the applicants. [Memo-
randum of Points and Authorities in Support of Motion for
Reconsideration of Denial of Motion to Intervene of Mem-
bers of the United States House of Representatives, Febru-

ary 19, 1980, at 2] Next, the Members argued that denying their motion to intervene because they had failed to demonstrate that the Justice Department would not adequately defend their interest was inconsistent with granting the intervention by the plaintiff-intervenors. Lastly, the Members asked the court to reevaluate its finding of untimeliness.

On February 22, 1980, the plaintiffs and plaintiff-intervenors replied to the defendant's opposition to their motions for summary judgment. The plaintiffs began by asserting that the case was justiciable and nonpolitical. They maintained that Coleman v. Miller did not insulate rescission-extension questions from judicial review and to interpret that holding to mean judicial review was precluded was a distortion of the decision.

Next, the plaintiffs argued that by any of the standards announced in Goldwater v. Carter, 444 U.S. 996 (1979) (see page 104 of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981 for a discussion of that case), the present action was justiciable. They argued that according to the plurality opinion of Justice Rehnquist in Goldwater, the political question doctrine turned on: (1) whether there was a governing constitutional provision; and (2) whether there was a single and absolute answer to the controversy. In this regard, the plaintiffs stated:

Both considerations are satisfied in the present action.
Under the first test, Article V provides that an amend-

21-618 0–83---24

ment will become part of the Constitution "when ratified"
by three-fourths of the state legislatures. To say, as defend-
ant does, that the Constitution mentions only the term
“ratify”, begs the real question as to the meaning of ratifi-
cation. If the extension is unconstitutional and rescissions
are valid, as plaintiffs contend, the rescinding states have
not "ratified” the proposed Twenty-Seventh Amendment.
Neither, if the extension is unconstitutional, can the 24
states which assented to the terms proposed by the Ninety-
Second Congress (imposing a definite seven-year limitation
for ratification) be considered within three-fourths of the
ratifying states. Justice Rehnquist's second test is likewise
met. There is one law of rescission, one law of extension,
appropriate at all times for all amendments. That is an
important consideration not only in satisfying Rehnquist's
second test, but in demonstrating that the social, economic
and political considerations on the vitality of the amend-
ment (which defendant claims to be of utmost importance)
are devoid of any relevance whatsoever. The issues pre-
sented by the present action are, in the words of Professor
Charles Black, “yes or no questions of law” and in no way
"prudential questions.” [Memorandum of Plaintiffs and
Plaintiffs-Intervenors Replying to Defendant's Cross-Mo

tions for Summary Judgment, February 22, 1980, at 15) The plaintiffs contended that the substantive issues of the case concerning extension, termination and rescission were ripe for review. They claimed that concrete, measurable harm had already occurred, namely, the "continuing expenditure of scarce resources, legislative time and money.(Id. at 19)

The plaintiffs also maintained that they had clearly and concise ly alleged facts, including injury in fact, which gave them standing. They argued that two rules should be stressed: the court must assume the validity of all facts alleged in the plaintiffs' complaint on a motion to dismiss based upon the standing issue and the court must construe the allegations of the complaint in favor of the plaintiffs. The plaintiffs submitted that:

The alleged injuries are neither speculative nor conjectural: With regard to Idaho, the defendant has failed to honor the rescission vote contained in House Concurrent Resolution 10 passed by the Idaho Legislature and has failed and refused to remove Idaho from the list of states which have purportedly adopted the proposed Twenty-Seventh Amendment. This failure to recognize the legislative intent and the policy of the State of Idaho is an injury in fact and has debased the policy of the Idaho Legislature and impaired the effectiveness of the votes of its legisla

tors. (Id. at 23] The plaintiffs further contended that the extension of the ratification deadline by Congress was not authorized by Article V and was an ultra vires action with no force or effect. They argued that the state legislatures

should have been presumed to have understood and considere effects of the time limitation provisions

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