the same as those found in Baker v. Carr, the third inquiry was: "(iii) Do prudential considerations counsel against judicial intervention." Id. 444 U.S. at 998, 100 S.Ct. at 534. These prudential considerations "concern[ ] calling for mutual respect among the three branches of Government. Thus, the Judicial Branch should avoid 'the potentiality of embarrassment [that would result] from multifarious pronouncements by various departments on one question.' Similarly, the doctrine restrains judicial action where there is an 'unusual need for unquestioning adherence to a political decision already made." Id at 1000, 100 S.Ct. at 535. Some of the aspects of these prudential considerations have been criticized if not eliminated from the political question analysis. In Goldwater Justice Powell addressed the problem of potential embarrassment from multifarious pronouncements on a question and indicated that "[i]nterpretation of the Constitution does not imply lack [1140] of respect for a coordinate branch. Powell v. McCor mack,. [395 U.S.] at 548 [89 S.Ct. at 1978]." Id. at 1001, 100 S.Ct. at 536. He went on to point out that resolving constitutional questions pursuant to the court's duty "to say what the law is,' United States v. Nixon, 418 U.S. 683, 703 [94 S.Ct. 3090, 41 L.Ed.2d 1039] (1974), quoting Marbury v Madison, 1 Cranch 137, 177 [2 L.Ed. 60] (1803)." Id., would eliminate rather than create, multiple constitutional interpretations. In the same vein, Justice Stevens writing in Dyer v. Blair, supra, analyzed the defendant's allegation that the court should not rule on the question presented there because it could produce an “unseemly conflict between coordinate branches of government His response was "We are persuaded, however, that his suggestion is foreclosed by the Supreme Court's rejection of a comparable agreement in Power v. McCormack . . ." Dyer v. Blair, supra at 1300. Justice Stevens quoted the following section from Powell and then commented: Respondents' alternate contention is that the issue is whether or not the plaintiffs are the proper parties to raise the particular questions and not the validity of the merits, and because it is clear that when ruling on a motion to dismiss for want of standing, "both the trial and revewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party," Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). In a review of the complaint and its prayer for declaratory and injunctive relief, it is evident that the Count must assume the following: (1) the defendant wrongfully refused to accept Idaho's certification of rescission, and failed to properly report that Idaho was no longer within the group professing to have ratified; (2) the ratifications submitted by Idaho and Washington expressly limited their consent to adoption for a period of seven years and thus became null and void on March 22, 1979; (3) Congress; act in passing the extension resolution was unconstitutional and void; and (4) the defendant wrongfully maintains that he can continue to hold as binding all ratifications heretofore received and continue to accept any subsequent ratifications. In light of these assumptions the Court will consider the plaintiffs' claim of standing. Compare Riegle v. Federal Open Market Committee, supra, at 877. Each of the plaintiffs in this suit has presented the Court with an impressive array of facts and legal theories which support their claim of standing. From a review of the record there appears to be one group of plaintiffs, the individual legislators from the State of Idaho, who, if found to have standing, are in a position to present all of the pertinent issues in this case. If these plaintiffs are found to be proper parties, the Court will not need to consider claims of standing by the other plaintiffs in order to resolve the issues presented or grant the relief requested. The basis for the Idaho legislators claim of standing in this suit is that as participants in the ratification process, their individual votes, in favor of ratification for the seven-year time period 14 or for the rescission of the prior ratification 15 have been debased by the actions of the defendant and a suit of this nature is proper to vindicate their vote. In assessing this basis for standint, it should be noted that while recently state and national legislators have turned to the courts to pursue their causes, 16 there are no special standards for determining their standing vis-a-vis a private litigant, Harrington v. Bush, 553 F.2d 190 (D.Č. Cir. 1977). Thus the legislator must meet the same threeprong test articulated above as any other litigant would. The injury to a protected interest that the legislators assert as a basis for their standing in this case stems from an impairment of a vote cast in favor of the proposed constitutional amendment, or in favor of the resolution rescinding the prior ratification. The right to vindicate a properly cast vote has been verified in a number of 14 Seven of the individual plaintiffs in this action, as members of the Idaho legislature voted in favor of the proposed amendment, viz Reed W. Budge, Walter H. Yarbrough, Ernest A. Hale, Melvin F. Hammond, Jack C. Kennevick, Walter F. Little, W. Isarael Merrill. 15 Seventeen of the individual plaintiffs, in this action, as members of the Idaho legislature, voted in favor of the resicission resolution, viz Rusty M. Barlow, Noy E. Brackett, Ernest A. Hale, Melvin F. Hammond, Gordon R. Hollifield, Ray E. Infanger, Gary J. Ingram, Jack E. Kennevick, Walter E. Little, Ralph Olmstead, Tom W. Stivers, Wayne E. Tibbitts, Reed W. Budge, W. Israel Merrill, James E. Risch, J. Wilson Steen, and Walter H. Yarbrough. 18 See, eg., McClure v. Carter, 513 F.Supp. 265 (1981). cases; [1119] two of particular importance in this case are Coleman v. Miller, 307 U.S. 433, 59 S. Ct. 972, 83 L. Ed. 1385 (1939) and Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974). Coleman v. Miller, supra, is important in this instance for two reasons: first, Coleman dealt with a challenge to the ratification of a proposed amendment under Article V. Second, Coleman is one of the origins of the concept of standing based on an action to vindicate a vote which has been in some way impaired. The Coleman case dealt with Kansas' attempt to ratify a proposed amendment to the Federal Constitution known as the Child Labor Amendment. The Child Labor Amendment was first proposed in June of 1924.17 While several states ratified the amendment, the Kansas legislature in 1925 adopted a resolution rejecting the proposed amendment. Fourteen years later Kansas again considered the amendment. The Senate vote on the ratification resolution resulted in a 20-20 tie among the 40 senators. The lieutenant governor then stepped in as the presiding officer of the Senate and cast his vote in favor of the resolution. The resolution was later adopted by the House of Representatives. Suit was brought by 24 members of the legislature, including the 20 senators who had voted against the resolution in the Senate, to restrain the certification of ratification. A suit was brought challenging the right of the lieutenant governor to cast the deciding vote in the Senate arguing that he was not part of the "legislature" as specified in article V of the Constitution. The plaintiffs also challenged the proposed ratification on the grounds that the prior rejection by Kansas barred any subsequent reconsideration, and since Kansas had failed to ratify within a reasonable time the amendment had lost its vitality. The plaintiffs' suit was challenged on the ground that the petitioners did not have standing to raise these questions. The Kansas Supreme Court found that the plaintiffs had standing but ruled against the plaintiffs on the substantive issues. On appeal to the Supreme of the United States, the court held that the cases cited in support of the contention, that petitoners Id. at 438, 59 S.Ct. at 975. The court based this holding on a review of a series of 17 See Coleman v. Miller. 307 U.S. 433, 473, 59 S. Ct. 972, 991, 83 L.Ed 1385 (1939). "Chronology of Child Labor Amendment". 495, 64 L.Ed. 871 (1920), and Leser v. Garnett, 258 U.S. 130 42 S.Ct. 217, 66 L.Ed. 505 (1922). The Court pointed out that standing was granted to the plaintiff in Hawke v. Smith, No. 1, supra, who was suing as a "citizen and elector of the State of Ohio," and in Leser v. Garnett, supra, to "qualified voters" in the State of Maryland. Of these decisions the court wrote: The interest of the plaintiffs in Leser v. Garnett, as merely qualified voters at general elections is certainly much less impressive than the interest of the twenty senators in the instant case. This is not a mere intra-parliamentary controversy but the question relates to legislative action deriving its force solely from the provisions of the Federal Constitution and the twenty senators were not only qualified to vote on the question of ratification but their votes, if the Lieutenant governor were excluded as not being a [1120] part of the legislature for that purpose, would have been decisive in defeating the ratifying resolution. We are of the opinion that Hawke v. Smith, and Leser v. Garnett, are controlling authorities. . . Coleman v. Miller, supra 307 U.S. at 441, 59 S.Ct. at 976. The Coleman Precedent was followed and elucidated somewhat by the court in Kennedy v. Sampson, supra. In that case Senator Edward Kennedy of Massachusetts, plaintiff, filed suit against the administrator of General Services Administration seeking a declaration that the Family Practice of Medicine Act 18 had become law and an order requiring the defendant to publish the Act as a validly enacted law. The Family Practice of Medicine Act had been passed by large margins in both the Senate and the House, and was presented to the President for his approval on December 14, 1970. Both Houses thereafter adjourned for the Christmas holidays. The President neither signed nor vetoed the measure but issued a statement disapproving the bill and announcing that he would not sign it. Senator Kennedy, the chief proponent of the Act and one of the Senators who had voted in favor of it, maintained that the President's actions in disapproving the action resulted in a "pocket veto" which would automatically become law after ten days. In the alternative, Senator Kennedy argued that if the President's actions could be considered a veto, the Act should be returned for further consideration by Congress. As it stood, Senator Kennedy argued that his vote had been impaired because the Act had neither become law nor had he been given his right to vote on an override. A major barrier to Senator Kennedy's suit was the question of standing. On appeal the circuit court concluded that "any of the traditional methods of evaluating the standing of a party to sue" Id, at 433, would support the plaintiff's claim of standing. In particular the court reviewed Coleman and stated that: [T]he office of United States Senator does confer a participation in the power of the Congress which is exercised by a Senator when he votes for or against proposed legisla 188. 3418, 91st Cong., 2d Sess. (1970). tion. In the present case, appellee has alleged that conduct Id. 307 U.S. at 436, 59 S.Ct. at 974. [7] 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 specically 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 recission of that prior ratificaton. 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 indicate 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 [1121] 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. The inquiry must now shift to the question whether or not there is a "casual connection" or "logical nexus" between the actions of the defendant and the injury suffered by the plaintiffs. In addressing the problem of standing to raise the question of the right of rescission, an essential part of this inquiry is into the nature of the duties of the defendant as found in 1 U.S.C. § 106b.19 While the plaintiffs argue that the defendant exercises a discretionary function in determining whether a ratification has been made in "accord[ance] [with] the provisions of the Constitution," the defendant maintains his function is merely ministerial. If the defendant's authority is discretionary, then there would exist a direct casual link between his actions of not giving full effect to the rescission and the impairment of the plaintiffs' vote. If, however, the defendant's acts are merely ministerial, then no casual connection would 19 For full text see footnote 1, supra. |