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is no such problem. No discovery or trial schedule will be
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:
There 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 ERĂ. 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 petitioners-to-intervene will seek such review of this decision. Thus, it is clear that the Department of Justice is not adequately defending the interest of the applicants. [Memorandum of Points and Authorities in Support of Motion for Reconsideration of Denial of Motion to Intervene of Members 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 amendment will become part of the Constitution "when ratified" by three-fourths of the state legislatures. To say, as defendant does, that the Constitution mentions only the term “ratify”, begs the real question as to the meaning of ratification. 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 NinetySecond 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
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 concisely 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 ar ed that the state legislatures should have been presumed to have understood and considered the effects of the time limitation provisions 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 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 De partment, 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
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 tha ground that a legislative body is permitted to undo by simple lity an act which originally required a supermajority, unless a
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 ultimate ratification of the Equal Rights Amendment. Second, NOW argued that its perspective on the issues raised by the complaint was substantially different from that of the defendant Administrator.
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 twothirds 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