II. CONSTITUTIONAL POWERS OF CONGRESS

Idaho v. Freeman (formerly Goulding)

Civil Action No. 79-1097 (D. Idaho)

On March 22, 1972, Congress passed and submitted to the various states for ratification House Joint Resolution 208 proposing the Twenty-Seventh Amendment to the Constitution of the United States, commonly known as the Equal Rights Amendment. House Joint Resolution 208 provided, in pertinent part, as follows:

"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 submission by the Congress:

'ARTICLE

'SEC. 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

'SEC. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

'SEC. 3. This amendment shall take effect two years after the date of ratification.'

On March 24, 1972, the legislature of the State of Idaho adopted the proposed Twenty-Seventh amendment (hereinafter "ERA"). In its adopting resolution, the Idaho Legislature included the original seven year time limitation for ratification prescribed by Congress in House Joint Resolution 208:

"Be it resolved by the Legislature of the State of Idaho, 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 submission by Congress:" (Senate Joint Resolution No. 133 of the State of Idaho)

In accordance with law, Idaho's adopting resolution was transmitted to the General Services Administration (hereinafter "GSA"), an agency of the federal government, where it was recorded. However, on February 11, 1977 Idaho Secretary of State, Pete T. Cenarrusa, officially notified GSA that the State of Idaho had rescinded and recalled its earlier adoption of the ERA and requested that the Administrator of GSA officially announce that the resolution of the Idaho Legislature adopting the ERA would no longer be recognized.

The Secretary of State also asked that the adopting documents previously filed with GSA be returned. Both requests were denied.

On October 20, 1978 President Carter signed into law House Joint Resolution 638. This law, which had been passed by Congress by simple majority vote, extended the ratification period for the ERA until June 30, 1982. At no time between March 22, 1972, when Congress had originally submitted the ERA for ratification, and March 22, 1979, when the original seven-year ratification period expired, did the required number of states (thirty-eight) pass the ERA. Also, at no time during this period was the ERA ratified by the State of Arizona.

On May 9, 1979 a four count complaint for declaratory and injunctive relief was filed in The United States District Court for the District of Idaho by the States of Idaho and Arizona and their legislatures. Named as the sole defendant was Paul E. Goulding, in his official capacity as Acting Administrator of the General Services Administration.

Count I alleged that by refusing to officially recognize Idaho's rescission resolution, the defendant violated two rights guaranteed to the Idaho State Legislature by Article V of the U.S. Constitution and the Tenth Amendment to the Constitution: (a) the right to rescind a previous adoption of a proposed amendment prior to ratification, by three-fourths of the states and (b) the right of the legislature to act unfettered by the actions of prior legislatures. It was also claimed that defendant's actions subverted the official policy of the State of Idaho in violation of Article V and the Tenth Amendment and deprived members of the Idaho Legislature of the effectiveness of their vote in violation of Article V, the Fifth, Tenth, and Fourteenth Amendments.

With respect to the State of Arizona, Count I alleged that the defendant's failure to officially recognize the rescission resolutions of Idaho and four other states, frustrates the implementation of the policy of the State of Arizona that the ERA not be adopted. It was also claimed that the defendant's actions served to contravene the power and authority of Arizona to secure the effectiveness of its opposition to the ERA, and deprived Arizona legislators of the effectiveness of their vote. Again, Article V, the Fifth, Tenth, and Fourteenth Amendments were cited in support of these contentions.

Count II claimed that Idaho's ratification of the ERA was null and void not only because of the superceding rescission resolution, but also because Idaho's adopting resolution, by its own terms, became a nullity when the seven-year ratification period expired on March 22, 1979. The defendant's failure to recognize this fact was again alleged to have violated the constitutional rights of the State of Idaho, its legislature, and its individual legislators. The allegations of the State of Arizona under Count II were identical to its allegations under Count I.

In Count III it was alleged that House Joint Resolution 638, which extended the ratification deadline, is unconstitutional under Article V and Article I Section 7 of the Constitution, for two reasons. First, by extending the ratification period, it alters a material portion of the originally submitted joint resolution after Idaho had acted in reliance on the original time limitation provision.

Second, plaintiffs alleged that because House Joint Resolution 638 was passed by a simple majority vote of Congress and signed into law by the President, it violated the constitutional requirement that action relating to constitutional amendments be taken by no less than a two-thirds majority vote. Further, it was alleged that the President's approval of House Joint Resolution 638 constituted Executive interference with the amendment process. This unlawful extension, said plaintiffs, violated their constitutional rights as outlined in Counts I and II.

Count IV claimed that defendant, by refusing to recognize rescission resolutions and by holding open the ratification period beyond its original seven year term, has subjected the States of Idaho and Arizona, their legislatures, and their legislators, to time consuming and costly preoccupation with The ERA to the detriment of other important legislative considerations. Violations of Article V, the Fifth, Tenth, and Fourteenth Amendments were again attributed to the defendant.

By way of relief, plaintiffs sought declaratory judgements that (a) Idaho effectively rescinded its prior adoption; (b) the extension of the ratification deadline is unconstitutional, and; (c) the expiration of the seven-year ratification period terminated Idaho's adoption of the Amendment. Plaintiffs also sought a court order to compel the defendant to return Idaho's adopting documents, to remove Idaho's name from any official records showing Idaho as having ratified the ERA, and to publicly announce that Idaho will no longer be included among the ratifying states.

On June 13, 1979 legislators from the State of Washington were granted permission to intervene in this action as plaintiffs.

On July 2, 1979 Rear Admiral Rowland G. Freeman, III assumed the duties of GSA Administrator and therefore automatically replaced Paul E. Goulding as the defendant in this action.

On August 6, 1979 the following national organizations were granted permission to intervene as amici curiae in support of the defendant: The American Association of University Women, the American Civil Liberties Union, the Coalition of Labor Union Women, Common Cause, ERAmerica, the League of Women Voters of the United States, the National Education Association, the National Federation of Business and Professional Women's Clubs, Inc., the National Women's Political Caucus, the Women's Equity Action League, and the Women's Equity Action League Education and Legal Defense Fund.

Status.-The Case is pending in the U.S. District Court for the District of Idaho.

Laxalt v. Kimmitt

Nos. 78-1437 and 78-1438 (D.C. Cir.)

On July 14, 1977, Senators Paul Laxalt, Barry Goldwater, Carl Curtis, S. I. Hayakawa and Lowell Weicker filed this action in the Federal District Court for the District of Columbia and asked that a three-judge court be convened to hear the case. The Senators were joined in the suit by the Committee for the Survival of a Free Congress (hereinafter "CSFC") an unincorporated political committee which contributes to campaigns of candidates for public office.

The suit asks that Rule XLIV of the Senate Ethics Code, and if necessary, the entire Ethics Code be declared null and void as violative of several provisions of the Constitution. Named as defendants are the Chairman of the Senate's Select Committee on Ethics, Senator Adlai E. Stevenson III, and the Secretary of the Senate, J. S. Kimmitt, who as the chief administrative officer of the Senate, the plaintiffs assert, "causes the Ethics Code and all reports, resolutions, and other actions of the Select Committee on Ethics to be disseminated to Senators and elsewhere." [Laxalt v. Kimmitt, No. 77-1230 (D.D.C.), Complaint at 6.] Additionally, the plaintiffs allege that Senator Stevenson and Mr. Kimmitt are "responsible for and exercise ministerial jurisdiction over the enforcement of the Ethics Code by said Committee and by the Senate." [Complaint at 7.]

Particularly the plaintiffs attack the limits on outside earned income prescribed by Rule XLIV. The Rule, which becomes effective in 1979 would, among other things, limit the amount of "outside earned income" a Senator could earn in a year to 15 percent of the aggregate amount of base salary paid to Senators and disbursed by the Secretary of the Senate.

The plaintiffs first allege that this limitation in fact constitutes a qualification for membership in the Senate in addition to and therefore in violation of Article I, Section 3, clause 3 of the Constitution which reads in full:

No person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

Next the Senate plaintiffs assert that by limiting the compensation they can receive for speaking and by putting them in jeopardy of "political ruin and personal vilification" if they violate Rule XLIV, the Rule deprives them of their rights to freedom of speech under the First Amendment. They also assert that their First Amendment associational rights are denied by the Rule because they are precluded from supporting without similar risk candidates for the Senate who have earned, earn, or may earn in excess of the "outside earned income" limit prescribed by the Rule.

The CSFC also asserts that the Rule deprives it of its First Amendment right to support senatorial candidates "who have earned, earn, or may earn such prescribed sums." [Complaint at 8.]

As a third count the Senate plaintiffs assert that the Rule's limitation on "outside earned income" violates the Fifth Amendment of the Constitution in that by prohibiting them from receiving such "outside earned income" it deprives them of liberty and property without due process of law.

The Senate plaintiffs, in the fourth count of their complaint, allege that Rule XLIV denies and disparages their Ninth Amendment rights to earn "outside earned income" over the limit and to support candidates for the Senate "who have earned, earn, or may earn in excess of said limitation." [Complaint at 9.] Additionally, they assert that the Rule is an unjustified intrusion of their privacy in violation of the Fifth and Ninth Amendments. The CSFC also asserts that the Rule violates its Ninth Amendment right to sup

port candidates for the Senate who have earned, earn, or may earn in excess of the "outside earned income limitation."

As a final count, the Senate plaintiffs assert that the Rule invidiously discriminates against them and denies them the equal protection of the laws in that the Rule limits "outside earned income,' but places no limitation on inherited income, "unearned" income, the income of a spouse, or income from a trust fund. They further assert that the "outside earned income" limitation is "an improper classification" because it "bears no reasonable relation to the purported purpose of the Senate Ethics Code." [Complaint at 10.]

The CSFC also asserts that it is invidiously discriminated against and denied the equal protection of the laws in that Rule XLIV effectively precludes it from supporting Senate candidates whose "outside earned income" is in excess of the Rule's limitations. On August 11, 1977, Common Cause, David Cohen, President of Common Cause and Nan Waterman, Chairwoman of Common Cause, citing Common Cause's "history of involvement in the enactment of ethics rules" including the Rule complained of by the plaintiffs, filed a motion to intervene as defendants in the action. On September 2, 1977, the motion to intervene as party defendants filed by Common Cause, David Cohen, and Nan Waterman was granted.

On December 21, 1977, the intervening defendants moved to dismiss the action.

On December 23, 1977, plaintiffs filed an amended complaint in which they deleted their prayer for convocation of a three-judge District Court pursuant to the provisions of 28 U.S.C. §§ 2282 and 2284.

The congressional defendants moved to dismiss the amended complaint on January 9, 1978.

On January 30, 1978, the intervening defendants, Common Cause, Mr. Cohen and Ms. Waterman, filed a memorandum in opposition to defendants' motion to dismiss.

The congressional defendants' motion to dismiss was heard and granted on March 3, 1978.

On March 13, 1978, an order dismissing the action was filed. The court first found that the amended complaint sufficiently alleged the requisite jurisdictional amount. The order declared that Rule XLIV does not add to the constitutional qualifications for Senate membership nor does it deprive the plaintiffs of their freedom of speech. Additionally, the order stated that the Rule's differentiation between earned and unearned income does not constitute unlawful discrimination. Therefore, the Court further concluded, the complaint fails to state a claim on which relief can be granted and that the amended complaint does not allege a justiciable case or controversy.

Finally, the Court declared that its disposition of the issues already mentioned made it unnecessary for the Court to address the question of standing.

Plaintiffs filed a notice of appeal on March 24, 1978.

On April 6, 1978, defendants Kimmitt and Stevenson filed a notice of cross-appeal from those portions of the final judgment of the District Court which (1) hold that the first amended complaint sufficiently alleges the requisite jurisdictional amount and (2) con

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