APPLICATION FOR A THREE-JUDGE DISTRICT COURT

Defendants Robin H. Carle, Clerk of the United States House of Representatives, and Wilson Livingood, Sergeant at Arms of the United States House of Representatives (collectively, "House Officers"), respectfully oppose Plaintiffs' Application for a Three-Judge District Court (June 30, 1998) ("Plaintiffs' Application"). A proposed order is attached.

Plaintiffs' Application is filed under 28 U.S.C.  2284(a) which requires, in pertinent part, that a three-judge district court be convened "when an action is filed challenging the constitutionality of the apportionment of congressional districts." Plaintiffs are entitled to a three-judge district under  2284(a) only if the allegations in the Complaint demonstrate that their claims are within the requirements of that statutory provision and are "substantial." Police Officers' Guild v. Washington, 369 F. Supp. 543, 548-49 (D D.C 1973); Ex parte Poresky, 290 U.S. 30, 34 (1 933). As we show below, plaintiffs' claims are neither.

[page 2]

I. Plaintiffs' Claims Do Not Fall Within the Requirements of  2284(a) Because They Do Not Challenge an Existing Apportionment Statute.

Plaintiffs seek in this action - through various extraordinary forms of declaratory and injunctive relief- to force Congress (which is not a party) to pass, and the President to sign, legislation which either grants statehood to the District of Columbia or reunifies the District of Columbia with an existing (but unspecified) state. Self-evidently, plaintiffs are not challenging a statute that apportions a congressional district since the District of Columbia at present does not have congressional representation and, therefore, no such statute exists.

Accordingly, plaintiffs' claims are not within the requirements of  2284 because that statute is limited to state "'statutes apportioning congressional districts"' or other "state action reapportioning congressional districts." Federation for American Immigration Reform V. Klutznick, 486 F. Supp. 564, 577(D.D.C. 1980) (quoting S. Rep. No.93-206, 93d Cong., 1St Sess. 13 (1973)). A challenge to the apportionment process generally - or, as plaintiffs describe their claims, "[a] case [that], in [some] way, concerns the apportionment of congressional districts," Plaintiffs' Application at 4 - is simply not sufficient. 486 F. Supp. at 577 (declining to convene three-judge court in suit challenging "census practices which will produce data on which the apportionment of [the] House... will be based"); City of Philadelphia V. Klutznick, 503 F. Supp. 657, 658 (E.D. Pa. 1980) ("Th[e] plain language [of  2284] implies that, in order to necessitate the convening of a three-judge court, the challenge must be to an existing apportionment.").

If there were any doubt about the scope of  2284, that doubt would be eliminated by the legislative history of the 1976 [page 3] amendments to that statute. Id. (legislative history of 1976 amendments not ambiguous: "Congress intended to reduce sharply the class of cases requiring the convening of a three-judge .0..... '[Section 2284(a) limited to eases challenging the constitutionality of any statute apportioning congressional districts or apportioning any statewide legislative body."') (quoting H.R. Rep. No.1379, 94th Cong., 2d Sess. 4 (1976)). [footnote 1: See also Response of Defendant District of Columbia Financial Responsibility and Management Assistance Authority to Order to Show Cause Why Plaintiffs' Application for a Three-Judge Court Should Not Be Granted at 3-4 (July 21, 1998).]

II. Plaintiffs' Claims Are Not Substantial.

Plaintiffs' Application should be also be denied because their claims are not substantial. "A claim is insubstantial if it is obviously without merit or clearly determined by previous case law." Adams v. Richardson, 871 F. Supp. 43, 45 (9.D.C. 1994). See also Goosby v. Osser, 409 U.S. 512, 518 (1973); Poresky, 290 U.S. at 32. Here, plaintiffs' claims are insubstantial for both reasons.

A. The Court Lacks the Power to Grant the Relief Plaintiffs Seek.

As an initial matter, plaintiffs' claims are not substantial because this Court lacks the authority to grant the relief plaintiffs seek: extraordinary forms of injunctive relief designed to shut down the Congress, and significantly restrict the President's exercise of his constitutional authority, in order to force Congress to pass, and the President to sign, certain legislation that plaintiffs desire. The separation of powers doctrine constrains the Court from directly compelling Congress to pass legislation, or the president to sign legislation. , e.g., McCray v. U.S., 195 U.S. 27, 57 (1904) ("[T]he judiciary cannot prescribe to the legislative department of the government limitations upon the exercise of its acknowledged powers."). And if the Court [page 4] cannot directly compel Congress to legislate or the President to sign legislation, it certainly cannot do so indirectly by holding Congress (and the country) hostage until Congress enacts, and the President signs, legislation satisfactory to plaintiffs. [footnote 2: See also Keener v. Congress of the United States, 467 F.2d 952, 953 (5th Cir. 1972) ("no cause of action lies to compel Congress to exercise its discretion to legislate on a purely political question"); Adams v. Richardson, 871 F. Supp. at 45 (dismissing complaint challenging Congressman's "legislative discretion"). generally Kilbourn V. Thompson, 103 U.S. 168, 190-02 (1880).]

B. Plaintiffs Clearly Lack Standing to Sue the House Officers (as Well as the Other Defendants).

This Court's jurisdiction is limited by Article III,  2, of the Constitution to "cases" and "controversies." Allen V. Wright, 468 U.S. 737, 750 (1984). Justiciable cases and controversies must be "definite and concrete, touching the legal relations of parties having adverse legal interests... admitting of specific relief through a decree of conclusive character...." Aetna Life Insurance Co. V. Haworth, 300 U.S. 227, 240-241(1937). To satisfy Article III, plaintiffs must demonstrate, among other things, that they have standing which requires:

[First,] an 'injury in fact' - an invasion of a legally-protected interest which is (a) concrete and particularized,... and (b) actual or imminent, not "conjectural" or "hypothetical,".... Second, there must be a causal connection between the injury and the conduct complained of- the injury has to be "fairly... trace[able] to the challenged action of the defendant, and not... th[e] result [of] the independent action of some third party not before the court. ... Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61(1992) (citations omitted). Here, plaintiffs clearly do not have standing to sue the Clerk or the Sergeant at Arms.

[page 5]

First, none of plaintiffs' injuries are concrete or particularized as to the House Officers. See Motion of Defendant District of Columbia Financial Responsibility and Management Assistance Authority to Dismiss the Complaint as to It at 3 (July 21, 1998).

Second, plaintiffs' alleged injury - lack of congressional representation for District of Columbia residents - is not fairly traceable to the Clerk or the Sergeant at Arms. The Clerk and the Sergeant at Arms are merely officers of the House whose duties are circumscribed by statute and House Rule. [footnote 3: See, e.g., 2 U.S.C. 78 ("It shall be the duty of the Sergeant at Arms... to attend the House during its sittings, to maintain order under the direction of the Speaker, and pending the election of a Speaker or Speaker pro tempore, under the direction of the Clerk, execute the commands of the House and all processes issued by authority thereof directed to him by the Speaker."); Rules III, IV, Rules of the House of Representatives (105th Cong.) (enumerating duties of Clerk and Sergeant at Arms).] They have no legislative authority and, quite obviously, they cannot compel the House, much less the Senate, to legislate. Indeed, the only allegations in the Complaint respecting the House Officers is that they have complied with laws whose validity is not challenged here. [footnote 4: For example, plaintiffs allege that the Clerk carried out her responsibilities under 2 U.S.C.  2a) by transmitting to each state, after the last decennial census, a certification of the number of Representatives to which that state was entitled. Complaint at  79. (This responsibility was actually last discharged by a prior Clerk after the 1990 census. Ms. Carle did not become Clerk until 1995.) Plaintiffs have not challenged the validity of  2a(b).]

Finally, redressability is lacking here. The House Officers simply have no ability to remedy the wrong complained of- either by granting statehood to the District or by reunifying the District with another state.

In short, plaintiffs do not have standing to sue the House Officers. Because they also lack [page 6] standing to sue the other defendants, [footnote 5: See Motion of Defendant District of Columbia Financial Responsibility and Management Assistance Authority to Dismiss the Complaint as to It at 2-6 (describing plaintiffs' lack of standing as to the D.C. Financial Responsibility and Management Assistance Authority). The plaintiffs lack standing to sue the President for the same reasons that they lack standing to sue the Clerk and the Sergeant at Arms.] plaintiffs' claims are insubstantial and their request for a three-judge court must be denied.

C. Plaintiffs' Republican Form of Government Claim Is

Foreclosed by Prior Judicial Decisions.

Count Two of the Complaint alleges that plaintiffs have been denied their constitutional right under article IV,  4 of the Constitution to a republican form of government. Complaint at  88-118. This claim has already been considered and rejected by this Court in Hobson. Tobriner, 255 F. Supp. 295 .D.C. 1966). In that case, a group of D.C. citizens challenged certain provisions of the D.C. Code on the ground, among others, that they were unconstitutional because they denied the plaintiffs a republican form of government. This Court rejected that contention in clear terms: "[Q]uestions arising under [article IV,  4] of the Constitution 'are political, not judicial, in character, and thus are for the consideration of Congress and not the Courts."' Id. at 299 ( State of Ohio ex rel. Bryant v. Akron Metropolitan Park District, 281 U.S. 74, 78 (1930)). The Court emphasized that the Constitution invests Congress with "exclusive" jurisdiction over the District of Columbia (under article I,  8, cl. 17 of the Constitution), and that the plaintiffs sought a "political remedy beyond the power of the Court to grant." Id. at 300.

D. Plaintiffs' Equal Protection Claim Is Obviously Without Merit.

Plaintiffs' equal protection claim (Count One) does not challenge an existing statute. [page 7] Complaint at  37-87. Instead, it asserts that the residents of the District of Columbia are denied the equal protection of the laws by the absence of legislation either granting statehood to the District of Columbia or reunifying the District of Columbia with an existing state. In essence, plaintiffs say that because the citizens of unspecified federal enclaves have congressional representation in the states in which the federal enclaves are located ' id. at  47-48, and because the residents of a portion of the District of Columbia ceded back to Virginia in 1846 have congressional representation, id. at  56-58, the residents of the District of Columbia are denied equal protection because they are treated differently. Plaintiffs do not, however, challenge any statutes that affect federal enclaves or the portion of the District ceded back to Virginia. [footnote 6: Even if plaintiffs had challenged a statute that applied to residents of federal enclaves or to residents of that portion of the District ceded back to Virginia, on the ground that the statute denied equal protection to District of Columbia residents, they would not have succeeded. "It is no requirement of equal protection that all evils of the same genus be eradicated or none at all." Railway Express Agency. Inc. V. New York, 336 U.S. 106, 110 (1949).]

The argument that the absence of legislation as to the District denies plaintiffs equal protection under the Fifth Amendment is frivolous and patently insubstantial. The function of the equal protection guarantee is to permit the courts to measure the validity of classifications actually drawn by legislatures. , e.g., Parham v. Hughes, 441 U.S. 347, 358 (1979). We are aware of no precedent that permits a party to whom a state or federal law does not apply to challenge, on equal protection grounds, the absence of similar legislation that would apply to that party. If the law were otherwise, as discussed above, challenges to Congress' failure to legislate would collide head first with the separation of powers doctrine prohibiting the judiciary from [page 8] telling Congress how to legislate. [footnote 7: While we do not propose at this time to discuss in detail the lack of merit of plaintiffs' equal protection claim, we note that the class of District of Columbia residents is not a "suspect class" for equal protection purposes; thus even an actual statute which created a classification based on D.C. residency would only need to satisfy the lowest level of equal protection scrutiny (the rational relationship test). U.S. v. Cohen, 733 F.2d 128, 136 (D.C. Cir. 1984).]

CONCLUSION

For all the reasons given, the Plaintiffs' Application for a Three-Judge District Court should be denied.

Respectfully submitted,

GERALDINE R. GENNET, General Counsel

KERRY W. KIRCHER, Deputy General Counsel

CAROLYN BETZ, Assistant Counsel