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October 4, 1979, refused to recuse himself. This decision was not appealed. See related discussion, supra, page 314.) 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 essentially leaving only questions of law. Regardless what the ruling of this Court may be, an appeal is certain. Since it is the appellate court which has the final word on all questions of law, including the Court's ruling on the question of disqualification, interlocutory appeal at this juncture would not materially advance the termination of this litigation. Finally, considering only the matter of a prompt resolution of the pending litigation, an interlocutory appeal is not only uncertain because the circuit court must grant permission to hear it, but furthermore several months to a year could easily lapse before the circuit court could make a ruling. [Memorandum Decision, March 3,

1981, at 4) 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
of interim relief pending an appeal from final judgment,
see Fed. R. App. P. 2, 8(a), the potential hardship to peti-
tioners of an adverse decision in the district court fails to
constitute irreparable injury warranting issuance of the
writ in the absence of a showing that the district court
committed a clear and indisputable mistake in denying the
motion for disqualification. The approach taken by the dis-
trict court in applying 28 U.S.C. $ 455(a) cannot be so char-

acterized at this time. [Order, May 11, 1981, at 1]
The circuit court also denied NOW's motion for a stay as moot.

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 amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the Legislatures of three-fourths of the several states within seven years from the date of its sub

mission by Congress. [Emphasis supplied] All plaintiffs and plaintiff intervenors in this action are vitally concerned, active, constitutional participants in the amendatory process who have suffered injury in fact by reason of defendants' conduct and the purported extension of time by Congress for the ratification of the proposed amendment. [Plaintiffs' and Plaintiff-Intervenors Memorandum In Support of Their Standing to Sue and Injury

Suffered, August 27, 1981, at 3] 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 grava-
men of Plaintiffs' complaint is simply a fear that the pro-
posed Equal Rights Admendment 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 wrong-
fully 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 addi-
tional legislatures ratify within the extended period. Since
the injury complained of may never occur, Plaintiffs have
not suffered such injury as will afford them standing.
1 While the complaint is couched in terms of injury to "policies" of Idaho and Arizo
na and their respective legislatures and legislators, its essence is the concern that
the ERA may wrongfully become a part of the Constitution. "Pleadings must be
more than an ingenious academic exercise in the conceivable", Warth v. Seldin,
supra at 422 U.S. 509.
[Defendants-Intervenors' Memorandum of Law on the
Standing of Plaintiffs ... To Maintain This Action, Sep-

tember 29, 1981, at 6] On December 23, 1981, Judge Callister issued an order and memorandum decision granting the plaintiffs' request for a declaratory judgment and denying the defendant's and NOW's motions for dismissal or summary judgment. (Idaho v. Freeman, 529 F.Supp. 1107 (D. Idaho 1981)] The order specifically declared that:

a state has the power and right to rescind a prior ratification of a proposed constitutional amendment at any time prior to the unrescinded ratification by three-fourths of the states of the United States properly certified to the

General Services Administration; and ... the ratification
by Idaho of the twenty-seventh amendment was properly
rescinded and such prior ratification is void, as is the rati-
fication of any other state that has properly rescinded its
ratification. The Court further declares that Congress' at-
tempted extension of the time for the ratification of the

twenty-seventh amendment was null and void. In his decision, Judge Callister turned first to the question of standing and held that the Idaho legislators were proper parties to bring the suit. (Because the judge also ruled that the Idaho legislators were proper plaintiffs to raise all of the issues presented by the case, he did not determine the merits of the other plaintiffs' — e.g., the states of Idaho and Arizona, the Washington State legislators, etc.-assertions of standing.) Citing Coleman v. Miller, supra, and Kennedy v. Sampson, supra, Judge Callister agreed with the Idaho legislators' claim that they had standing because, as participants in the ratification process, their individual votes in favor of ratification for the seven-year time period or for rescission of the prior ratification had been “debased” by the actions of the defendant. He reasoned:

It follows, therefore, that Coleman and Kennedy support the proposition that a plaintiff in his position as a legislator, and having full authority to act in that office, exercises his right to vote on a matter and that if that vote or opportunity to vote is nullified that the plaintiff has a protected interest in vindicating his vote. The plaintiffs here are specifically empowered under article V to participate in the amendment process, and are therefore asserting a judicially recognizable injury particular to themselves and not what might be termed a “general grievance.” The plaintiffs have exercised their right to participate in the amendment process by voting in favor of ratification and at a subsequent time voting for rescission of that prior ratification. With reference to the assumptions that must be drawn from the complaint, it is clear that the plaintiffs' acts have been infringed and held for naught in that they have not been given the full effect that was intended. For example, the actions of Congress in lengthening the ratification period and extending Idaho's ratification into a period which was not contemplated initially expressly impinges upon the plaintiffs' action of ratifying only for the limited period and gives rise to an action to vindicate the intent of their vote. In the same vein, the refusal to recognize the plaintiffs' act of rescinding the prior ratification as fully and completely retracting the prior expression impinges on the legislator's right to participate in the ratification process and gives rise to a cause of action. The plaintiffs in this instance have established direct injury in fact to their constitutionally protected interest of participating in the process of amending the Constitution and thus the first bar to standing has been met. [529 F.Supp. at, 1120-1121]

Judge Callister also found that there was a "casual connection' or “logical nexus” between the actions of the defendant and the injury suffered by the plaintiffs. He based this view in part on Riegle v. Federal Open Market Committee, 656 F.2d 873 (D.C. Cir., 1981), where the court found it proper to name as a defendant a party who acted unconstitutionally under the law and not the legislature which enacted the statute. (See page of this report for a discussion of that case.)

Next addressing the question of ripeness, Judge Callister dismissed the defendant's and NOW's argument that the issues involved in the litigation could not properly be decided until the ratification process was completed. Although he noted that the argument had some superficial appeal, the judge stated that "overwhelming case law” was to the contrary. “[I]t appears that numerous Supreme Court and lower court cases have resolved specific substantive and procedural questions relating to article V prior to ratification by three-fourths of the States.” (Id. at 1122]

Judge Callister then found that the state legislatures and Congress had taken conflicting positions regarding the allocation of power under Article V, thus creating a constitutional impasse ripe for judicial review:

Considering the question of the propriety of the extension resolution passed by Congress, the plaintiffs, the Idaho legislators, exercised their authority under article V by enacting a ratification resolution which is good for only the seven-year period originally proposed by Congress. The congressional act extending the ratification period continues Idaho's ratification into a period to which it has not consented thus contravening the asserted intent of their ratification. Both the parties have exercised what they argue are their powers granted under Article V, and there is no subsequent act necessary to bring the question of extension into issue. The Idaho plaintiffs have acted to ratify for the seven-year period and Congress has abrogated that vote by extending it beyond the period intended by those ratifying, thus, since the extended period began, Idaho has had a continuing injury that is ripe for judicial resolution.

Turning to the question of the ripeness of the rescission issue, it appears that it also is ripe for much the same reason. The state legislature passed a resolution rescinding its prior ratification of the Equal Rights Amendment, and certified that fact to the Administrator of General Services. The act of rescission served the dual purpose of (1) establishing the state's position regarding the ratification of the proposed amendment, and (2) cancelling its prior act of ratification. Again accepting as true the material allegations of the complaint, i.e., Idaho's authority to rescind its prior ratification, and the defendant's exercise of discretion to determine that the state's rescission is not to be given full effect, then the fact that the defendant has refused to remove Idaho's name from the official lists of those who are considered as having ratified, but has merely reported the rescission along with the ratification

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