exist. Rather than attempt to resolve one of the merits in this case under a consideration of standing, and following the principle laid down by Harrington v. Bush, supra, the material allegations of the complaint must be accepted as true, thus the defendant's acts must be considered discretionary. In doing so, it becomes clear that the casual connection between the defendant's act and the plaintiffs' injury is fulfilled. With regard to the alleged injury flowing from the extension of the time limitation, the defendant argues that no causal connection exists between any act of his and the injury to the plaintiffs, if any, because such would flow from the congressional act of passing the extension resolution. The court in Riegle v. Federal Open Market Committee, supra, dealing with a similar argument, indicated that where the causation requirement is not met because the named defendants are not the actual cause of the injury, e.g., in Riegle the cause of the injury was the Congress' act in passing 12 U.S.C. § 263(a) and not the committee's actions pursuant to that statute, it is proper to allege as a defendant those parties who act "unconstitutionally under the law . . . and not the legislature which enacted the statute. See generally, Marbury v. Madison, 5 U.S. 1 Cranch 137, 175-80, 2 L.Ed. 60 (1803).” Id. at 879 n.6. Finally, since the causation requirement can also be met by showing that "prospective [judicial] relief will remove the harm,' Warth v. Seldin, supra, 422 U.S. at 498-99, 95 S.Ct. at 2204-05, see Duke Power v. Caroline Env. Study Gp., supra, and it is clear that the plaintiffs' alleged injury can be redressed by a declaration by this Court regarding the constitutionality of the various acts of rescission and extension, this requirement can be satisfied by the Court's consideration of and resolution of the merits. It is clear from the foregoing review of the constitutional and prudential limitations to the Court's jurisdiction that the Idaho legislators are proper parties to bring this suit in that they have met all of the requirements for standing outlined by the Supreme Court. Furthermore, since they are also proper plaintiffs to raise all of the issues presented by this suit, the Court need not determine the merit of the other plaintiffs' assertions of standing. B. Ripeness [8-10] A second consideration for the Court in determining justiciability is whether or not the action and the issues presented are sufficiently ripe for adjudication. "As is well known the federal courts established pursuant to Article III of the Constitution do not render advisory opinions. For adjudication of constitutional issues, 'concrete legal issues, presented in actual cases, not abstractions', are requisite. This is as true of declaratory judgments as any other [1122] field." United Public Workers v. Mitchell, 330 U.S. 75, 89, 67 S.Ct. 556, 564, 91 L. Ed. 754 (1947). While some of the considerations found in standing may overlap in the analysis of ripeness, they are nevertheless founded on essentially different inquiries. "Unlike the doctrine of standing, which establishes that the plaintiff must have sufficient interest in a case, or the requirement that the controversy must be real and not collusive, the doctrine of ripeness focuses upon the extent to which the controversy has matured at the time of the litigation." Dyer v. Blair, 390 F.Supp. 1287, 1289 (N.D. III.E.D., 1974). Thus the focus is shifted away from the litigants themselves and turned to the development of the issues to assure that the parties are so arrayed with adverse legal interests and in such a concrete fashion as to warrant judicial relief. Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 959, 22 L.Ed.2d 113 (1969); Aetna Life Insurance Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240-41, 57 S.Ct. 461, 463-64, 81 L.Ed. 617 (1937). Recently, Justice Powell held that the issues in Goldwater v. Carter, 444 U.S. 996, 100 S.Ct. 533, 62 L.Ed2d 428 (1979) were not ripe for judicial determination. He wrote: This Court has recognized that an issue should not be decided if it is not ripe for judicial review. Buckley v. Valeo, 424 U.S. 1, 113-114 [96 S.Ct. 612, 679-80, 46 L.Ed.2d 659] (1976) (per curiam). Prudential considerations persuade me that a dispute between Congress and the President is not ready for judicial review unless and until each branch has taken action asserting its constitutional authority. Differences between the President and the Congress are commonplace under our system. The differences should, and almost invariably do, turn on political rather than legal considerations. The Judicial Branch should not decide issues affecting the allocation of power between the President and Congress until the political branches reach a constitutional impasse. Id. at 997, 100 S.Ct. at 534. Since Goldwater dealt with the question of the allocation of power between two coordinate branches of government, the President and the Congress, in the process of terminating a mutual defense treaty, the constitutional impasse that Justice Powell was looking for was the assertion of apparently conflicting constitutional powers. Congress, however, had not taken any action with regard to the President's cancellation of the treaty. Thus, until Congress took action asserting what might be perceived as its authority under the Constitution, the case would not be ripe for adjudication. This case presents a somewhat similar situation. The essential questions here relate to the allocation of power of two entites-the state legislatures and Congress-acting under the auspices of article V. The inquiry is, therefore, whether inconsistent or conflicting positions have been taken regarding that power which would create the type of impasse necessary for judicial interpretation. [11, 12] An initial argument relied on by the defendant should be dealt with at this juncture of the Court's consideration of the question of ripeness. The defendant argues that questions such as those raised by this litigation are not ripe until three-fourths of the states have acted in ratifying. He argues that since the amendment process consists of "succeeding steps in a single endeavor," Dillon v. Gloss, 256 U.S. 368, 375, 41 S.Ct. 510, 512, 65 L.Ed. 994 (1921), until all the steps are taken, questions arising from that process are not ripe for adjudication. Whatever the logical appeal this argument might have, the Court is not at liberty to accept this approach in light of the overwhelming caselaw to the contrary. The Court is not aware of nor has it been referred to any case under article V that has been dismissed on the grounds that the case is not ripe because all the steps have not been taken. Rather, it 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. See Kimble v. Swackhamer, 439 U.S. 1385, 99 S.Ct. 51, 58 L.Ed.2d 225 [1123] (1978); Dyer v. Blair, 390 F.Supp. 1291 (N.D.Ill.1975); 20 Trombetta v. Florida, 353 F.Supp. 575 (M.D.Fla.1973); Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939); United States v. Sprague, 282 U.S. 716, 51 S.Ct. 220, 75 L.Ed. 640 (1931); Leser v. Garnett, 258 U.S. 130, 42 S.Ct. 217, 66 L.Ed. 505 (1922); National Prohibition Cases, 253 U.S. 350, 40 S.Ct. 486, 64 L.Ed. 946 (1920); Hawke v. Smith, No. 2, 253 U.S. 231, 40 S.Ct. 498, 64 L.Ed. 877 (1920); Hawke v. Smith, No. 1, 253 U.S. 221, 40 S.Ct. 495, 64 L.Ed. 871 (1920); Dillon v. Gloss, 256 U.S. 368, 41 S.Ct. 510, 65 L.Ed. 994 (1921); Hollingsworth v. Virginia, 3 U.S. 3 Dall 378, 1 L.Ed. 644 (1798). Therefore, the Court must review the actions of the defendant and plaintiffs to determine whether or not they have exercised their authority under article V so as to create a constitutional impasse, noting always that the Court in reviewing the defendant's motion to dismiss for lack of ripeness, it must construe the material portions of the plaintiffs' complaint against the moving party and in a light most advantageous to the plaintiffs. Warth v. Seldin. 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). 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 orginally 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 ratifica 20 The first Dyer v. Blair, 390 F.Supp. 1287 (N.D.III.E.D., 1974) was dismissed because the issues were not ripe because the legislature of Illinois had not completed action on the amendment. Until full legislative action had been completed, a challenge to its procedure could not be entertained. When full consideration had been completed, however, the issues were heard, Dyer v. Blair, 390 F.Supp. 1291 (N.D.Ill. 1975), thus making it clear that not all issues relating to the amendment process remain unripe until three-fourths of the states have acted. tion, and the defendant's exercise of discretion to determine that the state 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 is a sufficient assertion of an adverse power to create that impasse necessary for adjudication. The actions of the defendant in refusing to give full effect to the state's rescission, both lets stand the prior ratification which the state no longer supports and refuses to recognize its present position, and gives rise to a fully ripe conflict of the type proper for the courts to resolve. Since the issues are properly before the Court, and presented by the proper parties, the Court must now determine whether the questions are those which are to be decided by the courts or by another one of the co-equal branches. C. Political Question [13] Defendant maintains that if the questions presented in the instant case are [1124] determined to be otherwise justiciable, the case is barred from consideration by this Court because it presents a non-justiciable "political question." The case law in the Federal courts uniformly holds that a cause of action presenting a "political question" will not be adjudicated by the courts. Goldwater v. Carter, 444 U.S. 996, 100 S.Ct. 533, 62 L.Ed.2d 428 (1979); Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969); Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). In outlining the parameters of the political question doctrine, the Supreme Court established that "it is the relationship between the judiciary and the coordinate branches of the Federal Government, and not the federal judiciary's relationship to the States, which gives rise to the 'political question'. . . The nonjusticiability of a political question is primarily a function of the separation of powers." Baker v. Carr, supra at 210, 82 S.Ct. at 706. While the questions presented for this Court's determination deal essentially with the relationship and allocation of authority between the Congress and the states pursuant to article V of the Constitution, the antecedent question of who decides what that relationship is must be decided. That, it is contended, brings into play the potential bar of the "political question" doctrine.21 [14] The Supreme Court has given six formulations of the political question doctrine, any one of which operates as a "velvet black 21 It has been argued by the plaintiffs that the "political question" doctrine does not apply in this case because the questions presented here do not bring into play separation of powers considerations but rather deal with the problem of "federalism," ie., the balance of authority between the states and the federal government. This argument is ill-conceived for two reasons. First, it overlooks the preliminary question of who should address the issues, the courts or Congress-clearly a question of separation of powers. Second, the argument misperceives the nature of the amending process. The courts have long held that when acting pursuant to its authority under article V, the states are not performing a traditional state function but instead a federal function. Hawke v. Smith, No. 1, 253 U.S. 221, 40 S.Ct. 495, 64 L.Ed. 871 (1920). Similarly, when Congress acts pursuant to its authority under article V, it is acting in a special nontraditinal federal function. Hollingsworth v. Virginia, 3 U.S. 3 Dall 378, L.Ed. 644 (1798). Thus, since both are in essence Federal entities, a question of federalism would not be presented. Instead, the questions present problems of constitutional interpretation. jack" 22 removing this Court's power to exercise jurisdiction over these matters. The six criteria are: [1] a textually demonstrable constitutional commitment of Baker v. Carr, supra at 217, 82 S.Ct. at 710. An analysis of the question of the state's power to rescind a prior ratification and Congress' power to extend the ratification deadline, along with the initial question of who decides these questions, should be considered in conjunction with these six formulations of the political question doctrine to determine whether or not this Court is barred from further consideration of this matter. 1. Textually Demonstrable Constitutional Commitment to a Coordinate Political Department In Goldwater v. Carter, supra, Justice Brennan wrote that the "political question" doctrine restrains courts' review of an exercise of a policy decision made by a [1125] coordinate political branch to which authority to make that judgment has been "contitutional[ly] commit[ted]" Baker v. Carr, 369 U.S. 186, 211-213, 217 [82 S.Ct. 691, 706-08, 710, 7 L.Ed.2d 663] (1962). But the doctrine does not pertain when a court is faced with the antecedent question whether a particular branch has been constitutionally designated as the repository of political decisionmaking power. Cf. Powell v. McCormack, 395 U.S. 486, 519-521 [89 S.Ct. 1944, 1962-63, 23 L.Ed2d 491] (1969). The issue of decisionmaking authority must be resolved as a matter of constitutional law, not political discretion; accordingly, it falls within the competence of the courts. Goldwater v. Carter, supra 444 U.S. at 1006-7, 100 S.Ct. at 539. In a somewhat similar vein the court in Baker v. Carr, supra, wrote that "[d]eciding whether a matter has in any measure been committed by the Constitution to another branch of government . . . is itself a delicate exercise in constitutional interpretation and is a responsibility of this Court as ultimate interpreter of the Constitution." 369 U.S. at 211, 82 S.Ct. at 706. In addition, the Supreme Court has indicated that In order to determine whether there has been a textual commitment to a coordinate department of the Govern 22 A phrase coined by Professor Bickel to describe the operation of the "political question" doctrine. Bickel. The Least Dangerous Branch (1962). |