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set by Congress for the ratification of the ERA. The legislative history, they argued, clearly demonstrated that the placement of the time limitation clause in the preamble, as opposed to the text, did not change the effect of the time limitation clause.
The plaintiffs also claimed that a state could validly rescind its ratification. They maintained that the right of rescission was consistent with the constitutional policies contained in Article V and was mandated by Dillon v. Gloss. The plaintiffs found the defendant's reliance on Coleman v. Miller as a bar to rescission misplaced because that case did not purport to decide the question of whether a state had the right to rescind.
On September 4, 1980, the National Organization for Women (“NOW”) won an appeal to the U.S. Court of Appeals for the Ninth Circuit (No. 79-4844] permitting it to appear in the action as a party defendant. The court ruled that NOW had an interest in the continued vitality of ERA which would, as a practical matter, have been significantly impaired by an adverse decision and which was incompletely represented. The appeals court decision reversed a district court order of October 10, 1979, which had denied intervention.
On September 16, 1980, the 79 House Members submitted a renewed motion for reconsideration of the court's denial of their motion to intervene. Referring to the Ninth Circuit's order permitting NOW to intervene, the House Members asserted they had a fortiori established a right to intervene as well. The Members argued that Members of Congress had an interest in the subject matter of the suit and that an adverse determination by the court would interfere with and undermine that interest:
Plaintiffs have challenged Congress' power to extend the period during which states can ratify a proposed amendment to the Constitution. The success of this lawsuit would not only nullify petitioners' votes in favor of extending the ratification period for the Equal Rights Amendment but, more importantly, would permanently impair congressional control over the amending process. [Memorandum of Points and Authorities in Support of Renewed Motion for Reconsideration of Denial of Motion to Intervene of Members of United States House of Representatives, September
16, 1980, at 3] The Members maintained that the court had never questioned the sufficiency of their interest in the case. Rather, they claimed, the court denied their request on the ground that the Justice Department, on behalf of the defendant Administrator, would adequately represent their interest. They alleged that this finding was inconsistent with the NOW decision of the Ninth Circuit. The Members claimed that the two issues raised by NOW on appeal to the circuit court were precisely the same issues raised by the Members before the district court. 1
1 The NOW issues were first, that there was a substantial divergence of positions between the Department of Justice and NOW as to the handling of the lawsuit. The difference of position was evidenced by the Department's decision not to pursue the issue of the court's disqualification, an issue which NOW deemed crucial not only to the outcome of the lawsuit but to the
Continued ultimate ratification of the Equal Rights Amendment. Second, NOW argued that its perspective on the issues raised by mplaint was substantially different from that of the defendant Administrator.
On October 10, 1980, the plaintiffs opposed the renewed motion of the House Members to reconsider the denial of their motion to intervene.
On October 16, 1980, NOW submitted a motion to dismiss, or for summary judgment, based on previously asserted grounds, and the additional ground that Idaho House Concurrent Resolution 10 (which purported to rescind the prior ratification of the ERA) was defective. Idaho rules required rescission by a two-thirds vote of those members present; however the Resolution passed by a simple vote majority, said NOW. Therefore, NOW argued, the procedural vote was itself improper and was accordingly null and void.
On October 31, 1980, the plaintiffs opposed the NOW motion on the ground that a legislative body is permitted to undo by simple majority an act which originally required a supermajority, unless a constitutional provision was violated. The plaintiffs further argued that: (1) even assuming, arguendo, the Idaho legislature ignored its rules, the failure to conform did not invalidate the rescission resolution, and (2) the procedures and rules followed by the Idaho legislature were not subject to judicial scrutiny. The plaintiffs asserted that any error involved in not applying the correct rule was irrelevant.
On November 25, 1980, NOW replied to the plaintiffs' memorandum and disputed the plaintiffs' claims that no Idaho rule specifically dealt with ratifications of amendments to the U.S. Constitution and that legislative acts could be repealed or rescinded by a lesser margin than that utilized to pass them. NOW argued that the plaintiffs failed to recognize the difference between normal legislative affairs and a legislature's function with respect to amendments to the Federal Constitution. The latter was a non-legislative, entirely Federal activity, NOW maintained, and while the rules suggested by the plaintiffs might be applicable generally to enactment of bills and legislation, they were irrelevant to a legislature's affirmation of proposed constitutional amendments:
While the Idaho legislature does not have a general rule setting forth the necessary majority for ratification of a proposed constitutional amendment, it has nevertheless always required ad hoc that ratifications be by a two thirds margin. Indeed, all proposed amendments ratified by the Idaho legislature since Idaho attained statehood have been required to be ratified by super-majorities. No exception was made for ratification of the ERA in 1972. Senate Joint Resolution 133 (passed February 8, 1972). Defendants-Intervenors' Memorandum of Law In Reply to Plaintiffs' Opposition to Defendants-Intervenors' Motion to
Dismiss or for Summary Judgment, Nov. 25, 1980, at 3] NOW submitted that a state legislature clearly had the right, under Article V, to determine for itself what majority it required before a proposed amendment was deemed ratified. It did not follow, NOW stressed, that once the necessary majority was determined and ratification had occurred, a state could abandon that requirement in attempting to rescind its ratification. Finally, NOW noted that the question of whether a procedure followed by a legislature met the standards of Article V was always to be determined by a court.
On February 11, 1981, the court denied the motion by the 79 Members of the House for reconsideration of the denial of their application for intervention.
Separate pleadings involved NOW's attempts to have Federal District Court Judge Marion J. Callister disqualify himself from further participation in the proceedings because of his purported religious bias (and that of the church in which he was an officer) against the ERA and the resolution extending the ERA. Shortly after being granted party status in the case by the Ninth Circuit, NOW had independently moved, on September 22, 1980, that Judge Callister disqualify_himself. (The defendant GSA Administrator, represented by the Department of Justice, had originally filed such a motion on August 27, 1979, but the Judge, in an order issued on October 4, 1979, refused to recuse himself. This decision was not appealed. See related discussion, supra, page 361.) On February 6, 1981, Judge Callister denied NOW's motion in a 46 page opinion which held that under either an appearance-of-bias standard or a bias-in-fact standard, the relevant disqualification statute (28 U.S.C. $ 455(a)) did not require recusal in the case.
On February 25, 1981, therefore, NOW filed a motion in the district court for certification of an interlocutory appeal from the court's order of February 6. NOW argued that the appeals court should be allowed to rule on whether the district judge had applied the correct standard, and utilized proper procedures, in refusing to recuse himself. NOW further contended that certification would advance the ultimate termination of the litigation by eliminating the need for new hearings on remand if the judge was later disqualified. On the same day, NOW also filed a motion for a stay of the proceedings in the district court pending the disposition of the motion for certification.
On March 3, 1981, Judge Callister issued a memorandum decision denying the motion for certification and ordering the case to proceed as scheduled. The judge explained:
[T]his case is before the Court on stipulated facts, thus es-
In his decision, Judge Callister noted that a writ of mandamus would provide a faster resolution of the disqualification issue than the certification procedure. Following his suggestion, NOW filed a petition in the Ninth Circuit for such a writ. It was denied on May 11, 1981. [The National Organization for Women v. United States District Court for the District of Idaho, No. 81-7161 (9th Cir., May 11, 1981)] The circuit court found that:
In the circumstances of this case, including the availability
acterized at this time. (Order, May 11, 1981, at 1]
On August 27, 1981, at the request of the district court, the plaintiffs and plaintiff-intervenors filed a memorandum in support of their standing to sue and injury suffered. The brief reiterated the arguments made in the parties' submissions of December 17 and 26, 1979 and February 22, 1980. According to the memorandum, the case law demonstrated that in cases involving Article V of the Constitution, the states, state legislatures and their individual members have standing:
Clearly, the Constitution contemplates an important role in the Constitutional amendatory process for states acting through their state legislatures and their elected members. The role of these plaintiffs is distinctly different from, and more important than, that of private citizens.
United States House Joint Resolution 208 clearly contemplated a role in the amendatory process for states acting through their state legislatures and their elected membership. The preamble of House Joint Resolution 208 provided, in pertinent part:
That the following article is proposed as an
mission by Congress. [Emphasis supplied]
This injury, according to the plaintiffs, was of “constitutional proportion” [Id. at 5) because it involved the “fundamental Constitutional right of the legislatures of the various states to protect and vindicate their Constitutionally guaranteed right to participate in the amendatory process without interference or unlawful obstruction by the federal government." (Id. at 6]
On September 29, 1981, the defendant filed a memorandum on the question of standing, restating the arguments made in his submissions of September 10, 1979 and February 4, 1980. Once again, the defendant contended that none of the plaintiffs had established standing because: (1) they had suffered no actual injury but had alleged only “inchoate” and “speculative" grievances generally shared by all citizens; (2) no nexus existed between the alleged injuries and the actions of the defendant; (3) the interests which the plaintiffs claimed to have been impaired were not created by Article V, which sets forth the process for amending the Constitution, and therefore did not fall within its protective ambit; and (4) the defendant Administrator performed only a ministerial role in the amendment process and thus could not be the cause of any alleged injury to the plaintiffs.
Also on September 29, 1981, NOW filed its memorandum on the issue of the plaintiffs' standing to maintain the action. Its arguments essentially paralleled those made by the defendant: (1) the injury of which the plaintiffs complained had not occurred and might never occur; (2) the alleged injury was not attributable to the conduct of the defendant Administrator; and (3) no order which the court could issue against the Administrator could afford the plaintiffs any meaningful relief. NOW focused in particular on the initial argument, contending with respect to the plaintiffs generally that:
The most fundamental defect in Plaintiffs' case for standing is the undeniable fact that the injury about which they complain is entirely speculative. When stripped of its rhetoric and strained artfulness, the gravamen of Plaintiffs' complaint is simply a fear that the proposed Equal Rights Amendment may become part of the Constitution because the Administrator will wrongfully continue to accept ratifications of state legislatures after March 23, 1979, (the date on which the original ratification period set by Congress ended) and because he will wrongfully count the Idaho legislature as having ratified the amendment.? No such "injury” has yet occurred. It is, moreover, entirely speculative as to whether such “injury” will ever occur.
The injury for which Plaintiffs seek relief could not occur until (and if) three additional state legislatures ratify the ERA. Whether three more states will ratify the ERA before the expiration of the extended ratification period (June 30, 1981) (sic) is entirely speculative. Indeed, the issue of the validity of Idaho's purported rescission of the ERA would become irrelevant if more than three additional legislatures ratify within the extended period. Since