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L.Ed. 1385 that the question whether the lapse of 13 years
between the proposal of an amendment and the favorable
action by the Kansas legislature made the ratification inef-
fective was a "political question” to be finally determined
by Congress.

That holding was based on the absence of any acceptable
criteria for making a judicial determination of whether
the poroposed amendment had lost its vitality through
lapse of time. The Court noted that different periods might
be reasonable for different proposed amendments and that
varying economic or social conditions might support differ-
ing conclusions. Such considerations, although entirely ac-
ceptable as a predicate for decision by political depart-
ments of the government, might be wholly inappropriate
as a basis for judicial decision.

Although the issue in . . . [this] case[] is somewhat comparable to the lapse of time issue in Coleman in that the criteria for judicial determination are, perhaps, equally hard to find, the answer does not depend on economic, social or political factors that vary from time to time and might well change during the interval between the proposal and ratification. A question that might be answered in different ways for different amendments must surely be controlled by political standards rather than standards easily characterized as judicially manageable.

It is primarily the character of the standards, not merely the difficulty of their application, that differentiates between those which are political and those which are judicial. The mere fact that a court has little or nothing but the language of the Constitution as a guide to its interpretation does not mean that the task of construction is judicially unmanageable.

We are persuaded that the word "ratification (sic) as used in article V of the federal Constitution must be interpreted with the kind of consistency that is characteristic of judicial, as opposed to political, decision making. We conclude, therefore, that whatever the word "ratification" means as it is used in article V, that meaning must be con

stant for each amendment that Congress may propose. Id. at 1301-3.

Recently, in Goldwater v. Carter, supra, Justice Rehnquist, drawing heavily from Dyer, formulated a two-part test in the application of the lack of judicial standard formulation of the political question doctrine. The Goldwater case arose in conjunction with the turmoil surrounding the presidential termination of the mutual defense treaty with Taiwan. Suit was filed by several senators seeking a declaration that Senate approval was necessary before a treaty can be terminated. In a plurality opinion, Justice Rehnquist referred to both Coleman and Dyer to hold that the question of termination was “political" and thus non-[1138 ljusticiable. After a review of a part of the Coleman 46 case he wrote:

Thus, Mr. Chief Justice Hughes' opinion concluded that “Congress in controlling the promulgation of the adoption of a constitutional amendment has the final determination of the question whether by lapse of time its proposal of the amendment had lost its vitality prior to the required ratifications. Id. [307 U.S.) at 456 [59 S.Ct. at 983).

I believe it follows a fortiori from Coleman that the controversy in the instant case is a nonjusticiable political dispute that should be left for resolution by the Executive and Legislative Branches of the Government. Here, while the Constitution is express as to the manner in which the Senate shall participate in the ratification of a treaty, it is silent as to that body's participation in the abrogation of a treaty. In this respect the case is directly analogous to Coleman, supra. As stated in Dyer v. Blair, 390 F.Supp. 1291, 1302 (ND I11.1975) (three-judge court):

A question that might be answered in different ways for different amendments must surely be controlled by political standards rather than standards easily characterized as judicially man

ageable. In light of the absence of any constitutional provision governing the termination of a treaty, and the fact that different termination procedures may be appropriate for different treaties (see, e.g., n.1, infra) the instant case in my view also "must surely be controlled by political standards.

46 Justice Rehnquist quoted the following section from Coleman:

We think that the question of the efficacy of ratifications by state legislatures, in the light of previous rejection or attempted withdrawal, should be regarded as a po litical question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the Amendment.

The precise question as now raised is whether, when the legislature of the State, as we have found, has actually ratified the proposed amendment, the Court should re strain the state officers from certifying the ratification to the Secretary of State, be cause of an earlier rejection, and thus prevent the question from coming before the po litical departments. We find no basis in either Constitution or statute for such judicial

action. Article V, speaking solely of ratification, contains no provision as to rejection. Goldwater v. Carter, 444 U.S. 996, 1002-3, 100 S.Ct. 533, 537, 62 L.Ed.2d 428 (1979), and indicated that it was this part of the opinion that served as the basis for his claim that Goldwater was analogous to Coleman, i.e., termination like rejection was not mentioned in the Constitution But for analytic purposes, Justice Rehnquist did not continue to use the rejection discussier found in Coleman as a basis for his holding in Goldwater, but instead shifted to Justice Hughes discussion of the question of lapse of time and his determination that no justiciable standard existed to direct the courts to a decision on that issue. This is evident from the fact that the reason the Coleman court found the question of the efficacy of a ratification in light of a previ ous withdrawal was excluded by ellipsis. For example, the first paragraph cited by Justice Rehn quist should have read:

We think that in accordance with this historic precedent the question of the efficacy of ratifications by state legislatures, in the light of previous rejection or attempted with drawal, should be regarded as a political question pertaining to the political depart. ments, with the ultimate authority in the Congress in the exercise of its control over

the promulgation of the adoption of the amendment. Coleman v. Miller, 307 U.S. 433, 450, 59 S.Ct. 972, 980, 83 L.Ed. 1385 (1939). Thus making it cles that the rejection issue was not decided on the grounds that a judicial standard was lacking bu rather that historical precedent dictated the determination that it was a political question While concededly Coleman and Goldwater are factually analogous, it is clear that analyticall they were handled differently. Therefore, for a proper understanding of the holding in Gal water, Dyer v. Blair, 390 F.Supp. 1291 (N.D.Ill. 1975) should be scrutinized.

905. "A communication as to ... the ultimate motive of the litigation is equally protected with other communications) so far as any policy of privilege is concerned.” Baird v. Koerner, 279 F.2d 623, 630 (9th Cir. 1960); 8 Wigmore, Evidence $ 2313 (McNaughton rev. : 1961). If after Mr. Singman discloses the substance of his conversa: tion with Mr. Duffy, as ordered above, the additional disclosure of : the client's identity will reveal a motive protected by the attorney

client privilege, then the identity of the client may not be discovered. : The deponent cites the Harvey case for the proposition that when . a client contacts a lawyer, who in turn contacts a third party concerning the plaintiffs, the identity of the client is privileged in order to preclude revelation of the client's motive for contacting his lawyer. It is true that when a client consults an attorney for the general purpose of ascertaining legal rights or obligations, the attorney-client privilege “is not lost merely because relevant nonlegal considerations are expressly stated in a communication which also includes legal advice." United States v. United Shoe Machinery Corp., 89 F. Supp. at 359. But as in Harvey, the deponent has failed to make the threshold showing that the unidentified client communicated with his attorney in order to obtain legal advice. Absent a showing that deponent's response to plaintiffs' question would disclose a motive relating to the conduct of his client's legal affairs, the court must compel the answer.

Even if deponent could make such a showing, the Harvey case is inapt. Harvey established that the attorney-client privilege is not lost if the lawyer employs a non-lawyer, such as an accountant or investigator, incident to the lawyer's employment to render a legal opinion, perform a legal service or afford representation in legal proceedings. NLRB v. Harvey, 349 F.2d at 907. The “Duffy memorandum" does not on its face indicate that Mr. Singman hired Mr. Duffy, nor does it suggest that Mr. Singman created an agency relationship with Mr. Duffy by which Mr. Duffy was to assist Mr. Singman's provision of legal services to his client. The principle established in Harvey, therefore, does not apply to this case.

III. FEE ARRANGEMENTS

The attorney-client privilege, which exists to encourage full, free disclosure by clients to their attorneys, does not support protection of the amount of the fee paid for the services rendered. United States v. Sherman, 627 F.2d 189, 192 (9th Cir. 1980). Since knowledge of the total fees Mr. Singman collected from NICOA is relevant to the subject matter involved in the pending claim, See Fed. R. Civ. P. 26(b)(1), there are no grounds for shielding this item of information from disclosure. Moreover, since the question regarding Mr. Ratliff's contributions toward the payment of fees due Mr. Singman from third parties concerns a time period prior to Mr. Singman's representation of Mr. Ratliff, compulsion of the answer to that question does not disrupt an attorney-client relationship, and does not violate the privilege. See In re Grand Jury Investigation (Subpoena to Nino v. Tinari), 631 F.2d 17, 19 (3rd Cir. 1980). The court grants plaintiffs' motion to compel answers to both questions regarding fee arrangements.

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 case presents a political question because judicial resolution of petitioners' claim would produce a "potentially embarrassing confrontation between coordinate branches of the Federal Government. But, as our interpretation of Art. I, § 5, discloses, a determination of petitioner Powell's right to sit would require no more than an interpretation of the Constitution. Such a determination falls within the traditional role accorded courts to interpret the law, and does not involve a "lack of the respect due [a] coordinate [branch] of government," nor does it involve an "initial policy determination of a kind clearly for nonjudicial discretion.Baker v. Carr, 369 U.S. 186, at 217, 82 S.Ct. 691, at 710 [7 L.Ed.2d 663). Our system of government requires that federal courts on occasion interpret the Constitution in a manner at varience with the construction given the document by another branch. The alleged conflict that such an adjudication may cause cannot justify the courts

avoiding their constitutional responsibility. See
United States v. Brown, 381 U.S. 437, 462, 85 S.Ct.
1707, 1722, 14 L.Ed.2d 484 (1965); Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 613-614,
72 S.Ct. 863, 898, 96 L.Ed. 1153 (1952) (Frankfurt-
er, J., concurring); Myers v. United States, 272
U.S. 52, 293, 47 S.Ct. 21, 84 [71 L.Ed. 160) (1926)
(Brandeis, J., dissenting).

The Court's reasoning in Powell v. McCormack requires a similar conclusion in this case. Decision of the question presented requires no more than an interpretation of the Constitution. Such a decision falls squarely within the traditional role of the federal judiciary to construe that document. . . . As the Supreme Court pointedly noted in its citation of McPherson v. Blacker, 146 U.S. 1, 24, 13 S.Ct. 3, [6] 36 L.Ed. 869, the possibility that action might be taken in disregard of a final judicial determination is an “inad

missible suggestion.” Id. at 1300-1.

Of the prudential considerations advanced by the case law dealing with this area only one appears to have any bearing on this case-is there a need for an "unquestioning adherence to a political decision already made.” Of all the political question formulations, this one appears to be the strongest precedent for declaring the issues of rescission and extension before the Court nonjusticiable. This is because the Supreme Court's holding in Coleman v. Miller, supra, that a rejection followed by a ratification, an arguably similar act to a ratification followed by a rescission, was a political question since Congress had already made a determination of that issue. Furthermore, in dicta, the court in Coleman indicated that at the time Congress decided the rejection question, they also resolved the question of the effectiveness of a rescission. With regard to the question of extension, by the very act of passing the joint resolution extending the time period by a simple majority, Congress has rendered a determination (1141) that it has the power to modify a proposed mode of ratification in that manner, thus leaving the Court with the question of whether or not there is a compelling prudential reason to give unquestioning adherence to that decision.

At the outset it should be noted that little has been written on the parameters of this formulation of the political question barrier. Thus key provisions have yet to be clarified: for example, what is meant by "an unusual need” to adhere to a decision made by a political branch. It is unclear whether an "unusual need" is manifest by considerations that go beyond the traditional notions of separations of powers, or whether it is merely a reiteration of that basic requirement. Aside from the problem of a lack of guidance as to the application of the formulation the whole approach has been severely criticized. This criticism is based on the argument that "it seems an unusual approach for the body recognized as having the power to review acts of Congress to adopt and rely on an act of

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