"U.S.Const.,

deem it necessary, shall propose Amendments ... Art. V (emphasis added). Within its powers to propose the mode of ratification, however, no specific reference is made by what concurrence of both Houses, or even if both Houses must act, in order for the mode of ratification to be proposed and sent to the states. Article V only provides that ratification be "by the legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by Congress . . . . ", U.S.Const., art. V (emphasis added). The defendant argues that this failure of the drafters to designate by what majority the power to propose the mode of ratification indicates that it should be left to Congress to set its own procedure. But this argument overlooks the fact that the word "Congress" has been specifically defined earlier in the same sentence. Rather than give the word "Congress" two different meanings within the same provision, it seems more logical to give it a consistent interpretation throughout. This conclusion seems even more reasonable when it is considered that what is being dealt with is the same powerthe congressional power to "propose."

One final observation. Reviewing several of the most recent resolutions proposing amendments to the Constitution and referring particularly to the resolution proposing the Equal Rights Amendment, the mode of ratification has been proposed by the approval of two-thirds of both Houses of Congress, thus indicating by general practice that this is the appropriate measure of approval.

Therefore, the Court is persuaded that the congressional act of extending the time period for ratification was an improper exercise of Congress' authority under article V. While Congress is not required to set a time period in advance of the requisite number of states acting to ratify, if it chooses to do so to remove uncertainty regarding the question, it cannot thereafter remove that certainty by changing the time period. In addition, since it is clear that Congress must act by a two-thirds concurrence of both Houses when acting pursuant to its authority under article V, and because the extension resolution was enacted by only a simple majority, the extension resolution is an unconstitutional exercise of congressional authority under article V.

[1154] Since the Court has determined that the enactment of the extension resolution was an ultra vires act, and thus unconstitutional, the question of the effect of the extension on a state's alleged "conditional" ratification is one that the Court does not need to address. However, the Court would point out the irony of the defendant's position in arguing that a state cannot condition its ratification and then contend that the condition can be purged from the ratification leaving the state's adoption of the amendment intact. If the defendant truly maintains that a ratification cannot be conditioned, then it would seem consistent that conditional ratification must be considered a nullity. If a state has acted improperly in exercising its ratification powers, only the states can cure the impropriety and neither Congress nor the courts can exorcise the statements of condition from the ratification. It must either succeed or fail as it is enacted.

F. Mandatory Injunction

[29,30] To begin with, several observations are appropriate. First, the relief the plaintiffs seek is a mandatory injunction.67 Relief in the form of mandamus, it is conceded, is not appropriate in this action. Second, it is well settled that the injunction remedy is a power given the courts under their equitable jurisdiction. Thus the courts' granting or denying of an injunction in a particular case is governed by those fundamental and established principles by which courts of equity are guided and influenced in their judicial action. and in administration of relief. Singleton v. Anson County Board of Education, 283 F.Supp. 895 (W.D.N.C. 1968). It is also clear that a mandatory injunction is viewed as an exceptional remedy and thus not regarded with judicial favor. Black v. Jackson, 177 U.S. 349, 20 S.Ct. 648, 44 L.Ed. 801 (1900); Singleton v. Anson County Board of Education, supra. If the Court finds that its application is called for, it should be used with caution and only in cases of great necessity. Id.

[31] From the rulings that this Court has made on the questions of the validity of Idaho's rescission and the constitutionality of the extension, it appears that these declarations alone are enough to settle all disputes between the parties. Since the Court has found the rescission of Idaho's prior ratification to be valid and the congressional act of extension unconstitutional, little would be served in granting the plaintiffs' request for an order directing the Administrator of the General Services to return Idaho's ratification papers, and barring him from accepting further ratifications. Therefore, the Court will deny the plaintiffs' request for this extraordinary relief.

In summary, the Idaho plaintiffs have standing to bring this action. The matter is ripe for determination and the Court has jurisdiction and properly should determine the issues presented.

The clear purpose of article V of the United States Constitution is to provide that an amendment properly proposed by Congress should become effective when three-fourths of the states, at the same time and within a contemporaneous period, approve the amendment by ratification through their state legislatures.

To allow an amendment to become effective at any time without the contemporaneous approval of three-fourths of the states would be a clear violation of article V of the Constitution. It follows, therefore, that a rescission of a prior ratification must be recognized if it occurs prior to unrescinded ratification by three-fourths of the states. Congress has no power to determine the validity or invalidity of a properly certified ratification or rescission.

Congress, when acting as an amending body under article V, may, by two-thirds vote of both Houses, propose an amendment and the mode of ratification. Congress has no power to propose either an amendment or a mode of ratification except by a twothirds vote of both Houses.

[1155] As part of the mode of ratification, Congress may by a two-thirds vote of both Houses set a reasonable time limit for the states to act in order for the ratification to be effective. When this

67 See plaintiffs' complaint, pp. 42, 47.

time is set, it is binding on Congress and the states and it cannot be changed by Congress thereafter.

Accordingly, the Court declares that Idaho's rescission of its ratification of the twenty-seventh amendment effectively nullified its prior ratification and Idaho may not be counted as a ratifying state. The same is true for any other state which has properly certified its action of rescission to the Administrator of the General Services.

The Court further declares that the majority action of Congress in attempting to extend the period for ratification of the twentyseventh amendment is void and of no effect.

In view of the Court's declarations, it appears that the injunctive relief sought by plaintiffs is unnecessary and the same is denied.

ORDER

This matter having come on before the Court and the Court having heard the arguments of counsel and the matter having been submitted on the briefs, and the Court being fully advised in the premises and having filed its memorandum decision herein;

NOW, THEREFORE, IT IS ORDERED that the defendant's and defendant-intervenors' motion to dismiss or in the alternative for summary judgment be, and the same is hereby, DENIED.

IT IS FURTHER ORDERED, and the Court finds, that the plaintiffs' request for declaratory judgment should be GRANTED, and the Court declares 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 declares that the ratification by Idaho of the twenty-seventh amendment was properly rescinded and such prior ratification is void, as is the ratification of any other state that has properly rescinded its ratification. The Court further declares that Congress' attempted extension of the time for the ratification of the twenty-seventh amendment was null and void.

IT IS FURTHER ORDERED that in light of the Court's declarations, it finds it unnecessary to grant the plaintiffs' requested injunctive relief and therefore will deny the same.

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA WESTERN DIVISION

(No. M.D.L. 428)

In re: IBP Confidential Business Documents Litigation

This matter is before the court on Nicholas Wultich's Charles Chatman's and John M. Fitzgibbons's (deponents') resisted motion to quash filed February 2, 1981. Final briefs were submitted on May 15, 1981.

During 1977 the House Committee on small Business through its SBA Subcommittee chaired by Representative Neal Smith conducted investigations into all aspects of the meant marketing industry. As part of these hearings, which ultimately led to the introduction and passage of legislation, the Subcommittee issued subpoenas for testimony and document production to attorneys representing the Meat Price Investigators Association and Hughes A. Bagley, all of whom are defendants in the Gorman suit.

On December 4, 1980 Nicholas Wultich, a staff investigator for the Committee on Small Business of the United States House of Representatives, Charles Chatman, former Counsel to the Subcommittee on Oversight of the committee on Interstate and Foreign Commerce of the United States House of Representatives; and John M. Fitzgibbons, former Special Counsel to the Small Business Committee were each served with nearly identical subpoenas for deposition. The subpoenas, issued in the above captioned case, called for deponents to appear to testify at a deposition and to bring "All documents relating in any manner to Iowa Beef Processors, Inc, or Hughes A. Bagley."

In their motion deponents seek to have the subpoenas quashed under the Speech or Debate Clause of the United States Constitution Act I § 6cl.1, asserting any knowledge they might have relating to this action was acquired by them during their employment and as part of their legislative duties.

IBP denies the applicability of the Speech or Debate Clause and asserts that deponents' testimony is directly related to the following issues which are at the core of these actions:

(1) Whether Bagley falsely and maliciously defamed IBP in his testimony before the Small Business Committee and in summaries of his testimony and other documents prepared and released to the public by that Committee.

(2) Whether the defendants in the Gorman case defamed and attempted to stir up litigation against IBP through communications with these Committees, and whether the Committees served those objectives by attempting to instigate investigations of and actions against IBP by several federal agencies.

(3) What communications with Bagley, governmental officials, and members of the public did Wultich and Fitzgibbons have in connection with the termination of Bagley's employment by Dubuque Packing Company on the basis of which they determined that IBP had no responsibility for the termination?

B. SECRETARY'S POWER TO REVOKE ORDER

As discussed above, pursuant to the directive from the House Committee, the Secretary withdrew the three wilderness areas from all mineral leasing until January 1, 1984-the date when all exploration and new leasing would cease under the Wilderness Act of 1964. The Senate, now supported in large part by the House Committee, Senator Baucus, and the PLF, interprets section 204(e) to permit the Secretary to "revoke the withdrawal order after a reasonable time."30 Since the interpretation of section 204(e) and effect of the Committee's resolution are crucial in determining whether it is necessary to reach the constitutional issue, it seems advisable to set out in some detail the contentions of the Senate and the position of the other parties.

The Senate's interpretation of section 204(e) is summarized by the following excerpts from its memoranda:

During the administrative process [which should continue despite the Committee resolution], plaintiffs may receive the leases they seek without a constitutional challenge; the agency may construe the June withdrawal order as not a bar to leasing, or may revoke that withdrawal order. Alternatively, plaintiffs may be denied the leases they seek . . . through an administrative decision on policy grounds

.

[I]f the case is stayed or dismissed there is every reason for the Forest Service to go forward with the administrative process and resolve plaintiff's applications . . . . [T]he Secretary of the Interior has power to decide whether to accept [The Forest Service's] recommendation and to revoke such a withdrawal order after a reasonable time. The House Committee action did not purport to bar preparation of an environmental statement; it merely required the Secretary of the Interior to submit a report and to issue a temporary withdrawal order.

[I]f [the Bureau of Land Management] decides to lease, it could do so not withstanding the withdrawal order . . . .

[I]f the Forest Service and Bureau of Land Management approved leasing in the Bob Marshall Wilderness area, they can recommend to the Secretary of the Interior that he consider revoking The letter was written prior to the enactment of the FLPMA to clarify the meaning of "withdrawal". It appears that the word "traditional" was used in that letter to distinguish between the term's traditional meaning (withholding from settlement, sale, location or entry . . .) and a proposed new meaning which would also allow exclusion from management under principles of multiple use. See H. Rep. No. 94-1163, 94th Cong. 2nd Sess. 44 (1976) reprinted in 5 U.S. Code Cong. & Admin. News 6218 (1976). Despite its reference to Udall v. Tallman, the letter does not support the Secretary's interpretation.

30 At oral argument counsel for The Bob Marshall Alliance and The Wilderness Society gave qualified support to this position, stating that "The Secretary may not revoke before a resonable time has elapsed to allow Congress to legislate." The federal defendants and Sierra Club contend that the Secretary has no authority under section 204(e) to revoke the withdrawal order. They do not, of course, agree with respect to the constitutionality of this section. Mountain States Legal Foundation did not expressly consider the right of the Secretary to revoke the order but does argue that regardless of any revocation the court must reach the constitutional issues.