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before the decision is anything but advisory in character."
Dyer v. Blair, 390 F. Supp. 1287, 1290 (N.D. Ill. 1974)
(three-judge court). Even if none of the issues presented
here becomes moot, the proposed Amendment will, by its
own terms, not become effective for two years after ratifi-
cation; this is ample time in which to resolve any justicia-
ble issues concerning its validity. To decide these issues
now would "ignore[] this Court's oft-repeated admonition
that the constitutionality of Congress' actions] ought not
to be decided except in an actual factual setting that
makes such a decision necessary” (Hodel v. Virginia Sur-
face Mining & Reclamation Association, No. 79–1538 (June
15, 1981), slip op. 28), and would break with the "consid-
ered practice not to decide ***

contingent questions
or to decide any constitutional question in advance
of the necessity for its decision” (Alabama State Feder-
ation of Labor v. McAdory, 325 U.S. 450, 461 (1945)). (Id. at

12-13] The defendant suggested, therefore, that the Court vacate the district court's judgment on grounds of lack of ripeness, without further briefing or oral argument.

On January 14, 1982, the GSA Administrator also filed responses to NOW's motions to expedite, arguing that while expedited consideration of the jurisdictional statements and petitions for certiorari was appropriate, expedited briefing and oral argument was “inadvisable." As reasons he cited: (1) the difficult and complex nature of the issues, which required more time to be adequately addressed; (2) the lack of necessity for expedition in view of the possibility of subsequent mootness and the fact that no legal barrier had been established to impede further state ratifications; and (3) the lack of ripeness. On the last point, the GSA Administrator maintained that the Supreme Court should not compound the district court's error of intruding prematurely into the amendment process by itself ruling on the merits in "an essentially advisory context.'

Also on January 14, 1982, the plaintiffs-appellees filed their own motions to expedite [in Nos. 81-1282-ADX and 81-1283-CFX) and a response to NOW's suggested briefing schedule. While, in view of the fundamental constitutional issues involved in the case, the plaintiffs joined NOW in requesting the Supreme Court to promptly note jurisdiction and to set an expedited briefing and argument schedule, they sought somewhat more time for the submission of briefs.

On January 15, 1982, the Court invited the parties to respond to the suggestions of the Solicitor General (in the GSA Administrator's jurisdictional statement) that the Court vacate the judgment of the district court on the ground of lack of ripeness, without further briefing or oral argument.

On January 19, 1982, the amici, Speaker O'Neill and Chairman Rodino, filed a response strongly urging a disposition of the case which would summarily vacate the judgment of the district court and direct the dismissal of the complaint for lack of ripeness. The amici agreed with NOW and GSA that the court below had overstepped its bounds by deciding a case that was not ripe for adjudi

cation, and also that the question of ripeness was itself ripe for review at that time. While the amici argued that the Court should summarily vacate and dismiss, thereby returning the case to the status quo ante and eliminating the impact of the district court's opinion, they contended that if the Court disagreed it should alternatively summarily reverse the lower court based on Coleman v. Miller, or grant the motions for an expedited hearing. The amici specifically disputed the implication in the GSA Administrator's jurisdictional statement that the case presented difficult constitutional questions not previously resolved by the Supreme Court:

Indeed, amici cannot even understand that suggestion. Less than four years ago the Department of Justice assured Congress that precisely the opposite was true-telling the House Committee on the Judiciary that Coleman, together with Dillon v. Gloss, 256 U.S. 368 (1921), were “dispositive” in establishing both the permissibility of extensions and the inefficacy of rescissions. Quoted in H.R. Rep. No. 95–1405, at 15, 9-10. The Department told Judge Callister precisely the same thing in defending the case below. Memorandum of Law in Support of Defendant's Motion to Dismiss, filed Sept. 5, 1979. For the reasons set out in their Brief Amici Curiae, amici contend that the Department of Justice was right on both of those earlier occasions, and that this case is easily controlled by the precedents of this Court. Accordingly, summary and/or expedited treatment is entirely appropriate. (Response of the Honorable Thomas P. O'Neill, Jr.. . ., January 19, 1982, at 6

7] On January 20, 1982, NOW filed its response to the suggestion of summary disposition, also supporting action by the Supreme Court summarily to vacate the district court judgment for lack of ripeness and to direct dismissal of the complaint. NOW noted, however, that it continued to believe that the alternative of plenary, but expeditious, review and reversal of the lower court decision, on justiciability grounds and the merits, would not entail undue difficulty.

Also on January 20, 1982, the plaintiffs/appellees filed their response to the suggestion that the district court judgment be vacated. In their view, "summary vacation on the issue of ripeness would not be proper in light of the parties and the issues presented by the case and would, in fact, be a ruling on the 'antecedent' issue of whether Congress has plenary power and control over the amending process under Article V, which ruling would, in turn, decide many of the fundamental constitutional issues and policies presented by this case.” (Response of Appellees, State of Idaho and State of Arizona .. January 20, 1982, at 2-3 (footnote omitted) The plaintiffs urged the Court to assign the case for expedited briefing and oral argument in line with their filing of January 14.

On January 25, 1982, the Supreme Court issued orders: (1) granting the motions to expedite consideration of the jurisdictional statements and petitions for certiorari: (2) denying the motions in all other respects, including the requests to expedite plenary consideration; (3) granting the petitions for certiorari before judgment; (4) postponing further consideration of the question of jurisdiction until hearing the case on the merits; (5) staying the judgment of the district court pending the sending down of the judgment of the Supreme Court; and (6) consolidating the various actions (i.e., Nos. 81-1282-ADX, 81-1283-CFX, 81-1312-ADX, and 81-1313-CFX). Numerous groups and individuals were also granted permission to file briefs as amici curiae. 2 (455 U.S. 918]

On July 9, 1982, the GSA Administrator filed a memorandum suggesting that the case was moot since the extended period for ratifying the Equal Rights Amendment had expired on June 30 without any further states acting to pass the proposed amendment. He argued that the resolution of the legal issues before the Court was therefore irrelevant to the rights of any of the parties and that the Court should as a consequence vacate the district court judgment and remand the case with instructions to dismiss the complaint.

On July 23, 1982, NOW filed a response to the GSA Administrator's memorandum in which it asserted that if the Court were to adopt the suggestion of mootness, “it would perforce be deciding that the lower court should have dismissed the complaint at the outset on ripeness grounds." [Response of NOW to the Memorandum for the Administrator of General Services Suggesting Mootness, July 23, 1982, at 2] Despite this view, NOW urged the Court to "state forthrightly” if it dismissed the case as moot that it was holding that the plaintiffs never had any legally cognizable interests in any issue raised by their complaint.

While NOW contended that vacating the lower court judgment and remanding with instructions to dismiss the complaint might well make clear to future litigants and judges that "the federal judiciary should not intrude itself into the ratification process, especially as the process is reaching its climax” (Id. at 3], the organization also noted that "an unexplained mootness decision might not be fully understood by the legislators and others in whom the Constitution vests the authority to amend the nation's charter of government." [Id. at 4] Therefore, NOW suggested that plenary briefing and argument might still be warranted, and even advisable, given the "unpressured” situation without a “day-by-day countdown on a pending amendment.” (Id. at 5] In NOW's view the Court clearly had the power to grant plenary consideration since the case represented a potentially recurring dispute in the political process and the issue involved might otherwise evade review.

On August 6, 1982, the plaintiffs-appellees (the states of Idaho and Arizona) filed their response to the Administrator's suggestion of mootness. In sum, the plaintiffs argued against summary vacation on the issue of mootness because it "would effectively decide, without the benefit of briefing, argument and reflection, many of those very issues of fundamental constitutional significance, consideration of which the Administrator seeks to avoid.” (Response of the States of Idaho and Arizona, et al. In Opposition to the Administrator's Suggestion of Mootness, August 6, 1982, at 2] Specifically, said the plaintiffs, summary vacation would "effectively decide the 'antecedent' issue of whether Congress has plenary power and control over the amending process under Article V and thereby determine many of the other issues and policies presented by this case. (Id.)

2 Among those granted permission to file amicus briefs were: the AFL-CIO; Senator Jake Garn, et al.; Joseph E. Brennan, Governor of Maine, et al., the American Bar Association; and ERAmerica.

The plaintiffs insisted that the case was not in fact moot because: (1) the appeal raised "transcendent" legal questions concerning the amendment process which were not dependent on the fate of the proposed Equal Rights Amendment; (2) the acts complained of had 'continuing, pervasive and adverse effects” in need of judicial remedy because the states and the amendment process had been harmed by the extension resolution, which represented an “unconstitutional enlargement of congressional power (Id. at 8]; (3) the expiration of the extension period had not eradicated the harm to the amendment process occurring when the Administrator refused to honor rescissions since the refusal “relegated all states to a secondclass role in the amendment process without redress for all future constitutional amendment proposals” [Id. at 11]; (4) Congressional "manipulation" of the amendment process was capable of repetition without review, and in fact the states could “reasonably expect to be subjected to the same illegal action by Congress again" [Id. at 15); and (5) the rescission issue was also capable of repetition without review. Finally, the plaintiffs argued that the present appeal was "strongly analogous" to certain election cases which challenged election procedures after elections were held which the Court decided despite claims of mootness.

Also on August 6, 1982, the intervening plaintiffs (the Washington state legislators) filed their response to the Administrator's suggestion of mootness. Arguing that the issues in the case were vitally important and involved the integrity of the Constitution, the intervenors contended that the case deserved full briefing and plenary consideration by the Court.

On September 21, 1982, the GSA Administrator filed a reply memorandum reiterating that the case was moot. Initially the Administrator dismissed the argument that the case was capable of repetition without review, noting that while there was a “theoretical possibility” that the legal posture of the case could be exactly duplicated at some point in the future, there was no "reasonable expectation” or “demonstrated probability” that the same controversy would arise again with the same complaining parties. The Administrator also disputed the argument that the case should be decided because the issues were of “transcendent” importance, terming such an approach directly contrary to the mandate of Article III that the judiciary only decide issues in the context of an actual controversy.

On October 4, 1982, the Court, citing United States v. Munsingwear, Inc., 340 U.S. 36 (1950), issued a one sentence order vacating the judgment of the Idaho district court and remanding the case to the lower court with instructions to dismiss the complaints as moot. [459 U.S.—, 103 S. Ct. 22]

Status—The case is closed.

The complete texts of the March 3, 1981 decision of the district court and the May 11, 1981 decision of the circuit court are printed in the “Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1981.

The complete text of the December 23, 1981 decision of the district court is printed in the “Decisions” section of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1982. Moore v. United States House of Representatives

No. 83-1077 (D.C. Cir.) Paul v. United States

No. 83-1190 (D.C. Cir.) On August 18, 1982, U.S. Representative W. Henson Moore and seventeen other Members of the House of Representatives ? filed a complaint for declaratory relief in the U.S. District Court for the District of Columbia against the U.S. House of Representatives, the U.S. Senate, Speaker of the House Thomas P. O'Neill, Jr., President of the Senate George H. W. Bush, Clerk of the House Edmund L. Henshaw, Jr., and Secretary of the Senate William F. Hildebrand. (Civil Action No. 82–2318] The complaint asked the court to declare that the Tax Equity and Fiscal Responsibility Act of 1982 (H.R. 4961) was unconstitutional as a bill for raising revenue which originated in the Senate, in contravention of the requirement in Article I, Section 7, clause 1 that all such bills originate in the House. 2

The complaint stated that H.R. 4961, as originally approved by the House, would have amended the Internal Revenue Code to significantly reduce revenues received by the United States. However, the complaint continued, when the Senate Finance Committee subsequently reported H.R. 4961, the bill "bore no resemblance to the original bill of that number which had been passed by the House What was inserted was a massive legislative proposal which deleted all of the revenue-reducing measures of the House bill. The Committee on Finance originated a new bill, except for its number, that would raise revenues by more than $98 billion over three years." (Complaint for Declaratory Relief, August 18, 1982, ss 5 and 6] The complaint pointed out that after H.R. 4961 as amended, was passed by the Senate and sent back to the House for consideration, Rep. Rousselot, one of the plaintiffs in the case, offered the following privileged resolution:

H. RES. 541
Resolved, That the Senate Amendments to the bill, H.R.
4961, in the opinion of the House, contravene the first
clause of the seventh section of the first article of the Con-
stitution of the United States, and are an infringement of
the privileges of this House and that the said bill, with
amendments be respectfully returned to the Senate with a
message communicating this resolution.

1 In addition to Rep. Moore, the plaintiffs were Representatives Philip M. Crane, Elliott H. Levitas, Stephen L. Neal, James G. Martin, James D. Santini, Carroll Hubbard, Jr., John H. Rousselot, Lawrence P. McDonald, Richard T. Schulze, Billy Lee Evans, Ed Bethune, Richard C. Shelby, Bob Stump, Daniel B. Crane, James E. Jeffries, J. Patrick Williams, and Larry E. Craig.

2 Article 1, Section 7 clause 1 of the U.S. Constitution states that: “All Bills for raising Reve nue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills."

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