TO PLAINTIFFS' MOTION FOR THE APPOINTMENT OF A

THREE-JUDGE COURT

PRELIMINARY STATEMENT

Plaintiffs in this lawsuit bring constitutional claims under the Fifth Amendment and the Guarantee Clause (Article IV, section 4) contending that they, as citizens of the District of Columbia, have the same right to be represented in the United States House of Representatives as do the citizens of each of the fifty States. In addition, although it is not entirely clear on the face of their complaint, plaintiffs apparently further contend that they are constitutionally entitled under the Fifth Amendment and the Guarantee Clause to "the benefits of a state government that is] insulated from Congressional interference in matters properly within the exclusive competence of state governments *. * *." See Complaint,  64 and 109. Based on these claims plaintiffs ask the Court, inter alia, for declaratory and injunctive relief that would effectively limit every State in the United States to only one Representative each in the House of Representatives until such time as the District of Columbia is itself admitted as a sovereign State or is "unified with a [page 2] previously-existing sovereign State * * *." See Complaint,  C.lb. of the Prayer for Relief.

Defendant William Jefferson Clinton will respond in due course to the merits of plaintiffs' claims and their rather remarkable prayer for relief. At this time, in accordance with the Court's Order of July 15,1998, defendant responds only to plaintiffs' motion for the appointment of a three-judge court, which is based on their contention that this lawsuit concerns the constitutionality of the "apportionment of congressional districts" within the meaning of 28 U.S.C.  2284(a).

For the reasons set forth below, plaintiffs are wrong as a matter of law. However else plaintiffs' claims might be described, they do not concern "apportionment" issues of the kind contemplated by Congress when it limited the jurisdiction of three-judge courts in 1976 in order to reduce the burdens on judicial resources that such courts entail. In relevant part, Congress intended under  2284(a) for three-judge courts to hear only those cases in which there is at issue the constitutionality of state or federal statutes that mathematically apportion the number and size of congressional districts among or within the respective States according to population, or which fix the boundaries of such districts within a State's borders. Such legislative apportionment decisions, which must be made after every decennial census, are often politically charged, and the burden of a three-judge court was considered necessary due to the importance of the constitutional issues that arise from such [page 3] decisions and in order to help diminish any perception that parochialism or partisanship played a role in the judicial resolution of these issues.

In this case, as is evident on their face, plaintiffs' claims do not arise from any legislative decision that mathematically apportions the size and number of congressional districts among or within the respective States. Indeed, since its constitutional conception in 1791, the District of Columbia has never been recognized as a sovereign "State" under Article I, 2 of the Constitution for purposes of apportioning Representatives among the "several States," and congressional "apportionment" decisions as contemplated by Congress under  2284(a) are not an issue in regard to the District. Although plaintiffs apparently will rely heavily on the constitutional principles set forth in the Supreme Court's "apportionment" (one person, one vote) cases in support of the merits of their claims, the fact remains that this lawsuit is sui generis and does not come within the narrow class of cases for which a three-judge court must be convened under  2284(a).

ARGUMENT

BECAUSE PLAINTIFFS' CLAIMS DO NOT CONCERN APPORTIONMENT

ISSUES WITHIN THE MEANING OF  2284(a), THEIR MOTION FOR

THE APPOINTMENT OF A THREE-JUDGE COURT SHOULD BE DENIED

The statute on which plaintiffs rely, 28 U.S.C.  2284(a), provides that "[a] district court of three judges shall be convened when otherwise required by Act of Congress, or when an action is filed challenging the constitutionality of the [page 4] apportionment of congressional districts or the apportionment of any statewide legislative body." When determining whether a three-judge statute applies in a given case, the Supreme Court has admonished that the jurisdiction of such courts must be strictly and technically construed. Mitchell v. Donovan, 398 U.S. 427, 431 (1970) (per curiam) ("We have stressed that the three-judge court legislation is not 'a measure of broad social policy to be construed with great liberality,' but is rather 'an enactment technical in the strict sense of the term and to be applied as such'") (citation omitted). See Nixon v. Richey, 513 F.2d 427, 446 (D.C. Cir. 1975) ("the three-judge apparatus is not to be utilized freely, but only and strictly as Congress has prescribed"). Pursuant to the above injunction, and based on the statute's legislative history and the applicable case law, it is clear that plaintiffs' lawsuit does not come within the limited class of cases encompassed by  2284(a) '5 terms.

Specifically, Congress intended under  2284(a) to retain three-judge jurisdiction only over what are commonly referred to as "legislative reapportionment" cases. See Moore's Federal Practice 3d,  404.03r1], at 404-9. Although the jurisdiction of three-judge courts was significantly reduced in 1976 in order to preserve judicial resources, Pub.L. No. 94-381, 90 Stat. 1119 (1976), Congress continued under  2284(a) "the requirement for a three-judge court in cases challenging the constitutionality of any statute apportioning congressional districts or apportioning any statewide legislative body." S.Rep. No. 204, 94th Cong., 2d [page 5] Sess. 12, reprinted in 1976 U.S. Code Cong. & Admin. News, 1988, 2000 (emphasis added). As one court has explained, three-judge courts have historically been deemed "necessary as a means for 'the saving of state and federal statutes from improvident doom at the hands of a single judge,' * * * [and in not other] area is that concern more critical to the legitimacy of judicial decision making than in the politically charged context of legislative reapportionment." Commonwealth of Massachusetts v. Mosbacher, 785 F.Supp. 230, 235 (D. Mass.) (three-judge court), rev'd on other grounds, 505 U.S. 788 (1992), quoting MTM, Inc. v. Baxley, 420 U.S. 799, 804 (1975). [footnote 1: As the court in Mosbacher explained: "The provisions for district courts sitting as a panel of three judges, one of whom must be a judge of the court of appeals - together with the opportunity for direct appeal to the Supreme Court - are useful in diminishing any perception that parochialism or partisanship will dominate decisions about the constitutionality of reapportionment." 785 F. Supp. at 235-36. See Maryland Citizens for a Representative General Assembly v. Governor of Maryland, 429 F.2d 606, 611 (4th Cir. 1970) ("The statutory three-judge district court was provided out of concern over the seemliness of a single federal judge enjoining the enforcement of an act of Congress or of a state statute of statewide application * * * ").]

A. The Nature of "Legislative Apportionment"

Cases That Come Within  2284(a)

The very first "apportionment" statutes within the contemplation of  2284(a) were enacted by Congress after the 1790 census pursuant to Article I, 2, which requires that Representatives "be apportioned among the several states * * * according to their respective Numbers." [footnote 2: Article I, 2, originally provided that "Representatives * * * shall be apportioned among the several States * * * according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for aTerm of Years, and excluding Indians not taxed, three fifths of all other Persons." Section 2 of the Fourteenth Amendment amended this provision by establishing that "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed."] Department of Commerce v. Montana, 503 U.S. 442, 448 (1992). In the following decades; Congress adopted a variety of mathematical formula by which to determine how many Representatives should be apportioned among the respective States, taking into account, inter alia, the total population of the United States as determined in the decennial censuses. Id. at 447-451. In 1911, Congress ultimately fixed the total number o Representatives at 435 (id at 451), and, in 1941, enacted a formula known as the "method of equal proportions" by which the 435 Representatives are apportioned among the fifty States according to their respective populations. Id. at 451-52. See 2 U.S.C.  2a(a). [footnote 3: Congress, in the 1941 Act, furthermore made the reapportionment process self-executing, thereby eliminating the need for it to enact apportionment legislation after each decennial census. Id. at 452 n.25.]

After congressional districts are allocated among the States by the above method, the States themselves are required to enact reapportionment legislation to fix the size (according to population) and location of these districts within their own [page 7] borders. [footnote 4: See Kirkpatrick v. Preisler, 394 U.S. 526, 531 (1969) (the States are required under Article I, 2, to create congressional districts which provide equal representation for equal numbers of people); Ryan v. State Bd. of Elections, 661 F.2d 1130, 1132 (7th Cir. 1981) ("Based upon the census report, it was the duty of * * * the State of Illinois to enact a constitutional reapportionment plan for the Illinois congressional districts").] With few exceptions, all legislative reapportionment cases within the meaning of  2284(a) have concerned State decisions regarding either congressional or state legislative districting plans. [footnote 5: The Supreme Court's decision in Montana, supra, is one such exception. The Court in Montana affirmed the constitutional validity of Congress' 1941 apportionment Act, pursuant to which the "method of equal proportions" is used to apportion Representatives among the States according to population after each decennial census. See 503 U.S. at 459 ("Our previous apportionment cases concerned States' decisions creating legislative districts; today we review the actions of Congress"). See Commonwealth of Massachusetts v. Mosbacher, supra (challenging the manner by which Congress apportions the 435 Representatives among the States).] The three-judge courts in these cases are most commonly called upon to determine whether population disparities between a State's congressional districts are unconstitutional pursuant to Westberry v. Sanders, 376 U.S. 1 (1964), in which the Supreme Court held (id at 18) that "equal representation for equal numbers of people is] the fundamental goal for the House of Representatives." [footnote 6: See Montana, 503 U.S. at 460 ("Our cases applying the Wesberry standard have all involved disparities in the size of voting districts within the same State"). See Reynolds v. 377 U.S. 533, 568 (1964) (as a basic constitutional standard, both houses in a State legislature must be apportioned on a population basis); New York City Bd. of Estimate v. Morris, 489 U.S. 688, 692-93 (1989) (congressional, State, and local districting plans "are subject to the general rule of population equality between electoral districts").] E.G., Maryland [page 8] Citizens Committee v. Tawes, 226 F. Supp. 80 (D. Maryland 1964) (a three-judge court was convened to decide a congressional redistricting case in which an unconstitutional mathematical imbalance between districts was alleged); Skolnick v. State Electoral Board of Illinois, 336 F. Supp. 839 (N.D. Ill. 1971) (three-judge court) (same); Shayer v. Kirkpatrick, 541 F. Supp. 922 (W.D. MO.)(three-judge court), aff'd, 456 U.S. 966 (1982) (same). [footnote 7: In some cases, the courts are called upon to devise a congressional apportionment plan owing to a State's failure to enact appropriate legislation following a decennial census. In Shayer, supra, for example, the State of Missouri failed to enact a reapportionment plan following the 1980 census. Due to a loss of population within the State, Missouri was entitled to one fewer Representative, and it was therefore "apparent that the present apportionment plan (based on the 1970 census figures and subsequent allocation of congressional seats) is unconstitutional."]

Three-judge district courts have also assumed jurisdiction under  2284(a) over legislative reapportionment cases in which it is alleged that congressional district boundaries have been unconstitutionally drawn on the basis of race. Shaw v. Reno, 808 F. Supp. 461 (E.D.N.C. 1992)(three-judge court), rev'd on other grounds. sub nom., Shaw v. Reno, 509 U.S. 630 (1993). See Amour v. State of Ohio, 925 F.2d 987 (6th Cir. 1991) (legislative reapportionment case alleging that State legislative districts were drawn so as to unconstitutionally divide the black vote) In contrast, the jurisdiction of three-judge courts has not been convened in those cases in which a legislative reapportionment plan is not directly at issue. In City of [page 9] Philadelphia v. Klutznick, 503 F. Supp. 657 (E.D. Pa. 1980), for example, plaintiffs challenged the method by which the 1980 decennial census was conducted, alleging that it would result in a deprivation of their constitutional rights to "equal representation in both federal and state legislatures." Id. at 658. The court rejected plaintiffs' request for a three-judge court, reasoning that "it is clear from both the text and the legislative history of  2284 that, in a case such as-this, involving a challengeonly to the constitutionality of the. conduct of the census and involving no challenge to any existing apportionment statute, the convening of a three-judge court is not required." Li at 658-59 (emphasis added). See , Commonwealth of Massachusetts v. Mosbacher, supra, 785 F. Supp. at 236 (because "(t]he methods of the census counts are precursors to the ultimate apportionment decisions, * * * an attack on those methods does not necessarily amount to a direct challenge to apportionment itself").

The court in Federation For Am. Imm. Reform v. Klutznick, 486 F. Supp. 564 (D.D.C.)(three-judge court), app. dismissed, 447 U.S. 916 (1980), determined on these same grounds that  2284(a) did not apply to the census case before it. Plaintiffs in Federation, as in the cases immediately above, challenged the means by which the 1980 decennial census was to be conducted, alleging, inter that it would result in an unconstitutional apportionment of congressional districts. Although the court had convened as a three-judge court, "after hearing further argument [page 10] on the propriety of such a designation," it concluded that plaintiffs' case "is most likely one for a single district judge." Id. at 577. The legislative history of  2284(a) demonstrates Congress' intent that three-judge courts only hear "actions 'challenging the constitutionality of any statutes apportioning congressional districts."' , quoting S.Rep. No. 93-206, 93rd Cong., 1st Sess. 13 (1973) (emphasis supplied by the court). The court concluded that, even though plaintiffs' challenge to the 1980 census might ultimately affect the apportionment of congressional districts, Congress did not intend  2284(a) "to cover cases such as this which do not directly affect state reapportionment." Id. [footnote 8: Although the court "conclude[d] that a three-judge court is not necessary and the issue may properly be decided by a single judge, we as a three-judge court] are concerned in view of the imminence of the census which is scheduled to begin within a few weeks, that the case be promptly decided and the parties have time take an appeal." Id. at 578. The court, accordingly, remained constituted as a three-judge court to decide unanimously that plaintiffs' claims could be dismissed for lack of standing. Id.]

B. Because Plaintiffs' Claims Do Not Directly Challenge A

Legislative Apportionment Plan,  2284(a) Does Not Apply To This Case

As is evident on their face, plaintiffs in this case do not directly challenge any State or federal legislative districting plan. Plaintiffs' claims, in other words, do not arise from any legislative decision allocating the size and number of congressional districts among or within the respective States based on their population numbers.

[page 11]

Plaintiffs' argument under  2284(a) rests, instead, on the proposition that the exclusion of the District of Columbia from the apportionment of Representatives among the fifty States is itself an "apportionment" decision, which it plainly is not. As a matter of historical and constitutional fact, the District has never been recognized as a "State" under Article I, 2, for purposes of apportioning Representatives "among the several -States * * * according to their respective Numbers." See Hepburn and Dundas v. Ellzey, 6 U.S. (2 Cranch) 445 (1804) (the term "States" under Article I is limited to the sovereign States that make up the Union and does not include the District of Columbia). Quite simply, legislative apportionment decisions concerning congressional districts, as contemplated by Congress under  2284(a), are irrelevant to the District of Columbia.

Nor can plaintiffs contend that this case properly comes within  2284(a) on the theory that, if they could possibly succeed on the merits of their claims, Congress would subsequently be required to reapportion the 435 Representatives among the States in order to include the District of Columbia. This theory has been rejected in the census cases, supra, in which the courts held that  2284(a) does not "cover cases such as this which do not directly affect state reapportionment." Federation For Am. Imm. Reform v. Klutznick, 486 F. Supp. at 577 (emphasis added). See City of Philadelphia, 503 F. Supp. at 658-59 ( 2284 does not apply where there is "no challenge to any [page 12] existing apportionment statute") . [footnote 9: As noted by the court in Mosbacher (785 F. Supp. at 236-37), some commentators have opined that  2284 "ought to include all federal constitutional challenges that could result in a reapportionment." 17 Wright, Miller & Cooper  4235, at 606, citing The New Three-Judge Courts of Apportionment and Continuing Problems of Three-Judge Court Procedure, 65 Geo.L.J. 971, 979 (1977). However, notwithstanding the broad language of this proposed standard, it was offered to encompass only those cases -- in addition to usual "legislative malapportionment" cases that challenge "unit voting, multi chamber districts, and gerrymandering." 65 Geo.L.J. at 679. All such cases directly concern state legislative reapportionment plans and, as such, are distinguishable from the present case. No commentator has opined that either census cases or challenges such as brought by plaintiffs here come within  2284.] Because plaintiffs do not directly challenge a legislative "apportionment" decision in the strict and technical sense of that term, their request that a three-judge court be convened in this case must be denied. Mitchell v. Donovan, supra, 398 U.S. at 431.

CONCLUSION

For the foregoing reasons, defendant requests that plaintiffs' motion under  2284(a) be denied.

Respectfully submitted,

FRANK W. HUNGER, Assistant Attorney General

WILMA A. LEWIS, United States Attorney