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LOIS E. ADAMS, et al, Plaintiffs
v. Civil Action No. 98-1665-LFO
WILLIAM JEFFERSON CLINTON, et al, Defendants
____________________________________________
CLIFFORD ALEXANDER, et al, Plaintiffs
v. Civil Action No. 98-2187-LFO
WILLIAM M. DALEY, Secretary of Commerce, et al, Defendants
REQUEST FOR DESIGNATION OF A THREE-JUDGE COURT [filed November 10, 1998]
TO THE HONORABLE HARRY T. EDWARDS, CHIEF JUDGE OF THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT:
For the reasons stated in an accompanying memorandum, it is hereby respectfully requested,
pursuant to the provisions of 28 U.S.C. 2284, that you designate two judges in
addition to
myself to participate in hearing and determining the plaintiffs' complaints for injunctive
and
declaratory relief.
Louis F. Oberdorfer, United States District Judge [signed November 6, 1998]
[starting on a separate page:]
MEMORANDUM
Two complaints filed by two sets of residents of the District of Columbia allege that
Congress has unconstitutionally excluded them from apportionment to a congressional
district.
Orders entered November 3, 1998, consolidated the cases. Preliminarily, both sets of
plaintiffs
request that their cases be set before a three-judge district court in the manner
contemplated by 28
U.S.C. 2284(b) (1). That statute requires the convening of such a court "when
an action is filed
challenging the constitutionality of the apportionment of congressional districts."
28 U.S.C.
2284(a). Whether a three-judge court is called for turns on: "(1) whether the
complaint formally
alleges a basis for equitable relief; (2) whether the constitutional question presented is
substantial;
and (3) whether [page 2] the case presented otherwise comes within the requirements of the
three-judge statute." Police Officers Guild, Nat'l Union of Police Officers v.
Washington, 369 F.
Supp. 543, 548-49 (D.D.C. 1973).
I.
The defendants named in the complaint in Adams v. Clinton include the President,
ministerial
officials of the House of Representatives, and the District of Columbia Financial
Responsibility
and Management Assistance Authority. The President and the House officials are alleged to
have
a role in effecting periodic apportionments to congressional districts as contemplated by
Article I,
2, cl. 3, of the Constitution; the Adams complaint seeks to enjoin their execution
of any further
apportionment until Congress has cured the claimed violations of plaintiffs' alleged
constitutional
rights. In addition, the Adams plaintiffs seek declarations that the present
apportionments denying
them representation in Congress violate their constitutional rights to a republican form
of
government and to the equal protection of the laws, as guaranteed by Article IV, 6 ,
and 1 of
the Fourteenth Amendment. These substantive complaints and plaintiffs' prayers for relief
allege
bases for equitable relief (which may or may not be granted) that clearly satisfy the
first prong of
the Police Officers Guild syllogism.
II.
Whether either constitutional question is substantial presents a more difficult problem.
It is
plaintiffs' contention, essentially, that the results of the reapportionment process,
mandated by
Congress in lieu of decennial reapportionment [page 3] legislation, see Franklin v.
Massachusetts,
505 U.S. 788, 791-92 (1992), violate Congress' constitutional apportionment obligation.
The
process does not merely provide plaintiffs with disproportionate representation in
Congress; it
provides no representation -- zero. Compare Board of Estimate of New York v. Morris, 489
U.S. 688, 702 (1989) with Swann v. Adams, 385 U.S. 440 (1967). Thus, plaintiffs argue that
the
apportionment process deprives them of a republican form of government because it leaves
them
unrepresented in the legislative body (Congress) authorized by the Constitution "[t]o
exercise
exclusive Legislation in all Cases whatsoever" involving them and the political
subdivision in
which they reside, the District of Columbia. U.S. Const. art. I, 8, cl. 17.
Plaintiffs also claim
that they are denied the equal protection of the laws because District residents, who are
subject to
Congress' "exclusive" legislative power, are not represented in Congress, while
residents of
former federal enclaves and other sites over which Congress is empowered to "exercise
like
Authority" are. Id. (defining other sites as "Forts, Magazines, Arsenals, dock
Yards, and other
needful Buildings," e.g., the Bethesda Naval Hospital Complex).
A constitutionally insubstantial claim, for three-judge .court purposes, has been
authoritatively described as "essentially fictitious," "wholly
insubstantial," "obviously frivolous,"
and "obviously without merit," words that "[i]n the context of prior
[Supreme Court] decisions . .
. import that claims are constitutionally insubstantial only if the prior decisions
inescapably render
the claims frivolous . ." Goosby v. Osser, 409 U.S. 512, 518 (1973) (citations
omitted) (emphasis
added); see also Washington v. Confederated Tribes, 447 [page 4] U.S. 134, 147-48 (1980);
LaRouche v. Fowler, 152 F.3d 974, 98283, 986 (D.C. Cir. 1998).
While plaintiffs cite no cases that embrace their theories, they emphasize that their
claims
raise original issues that have textual and tangential decisional support. For example, in
another
context they point to the following statement of the Supreme Court in Board of Estimate of
New
York v. Morris: "[I]n this country the people govern themselves through their elected
representatives and . . . each and every citizen has an inalienable right to full and
effective
participation in the political processes of the legislative bodies of the [n]ation,
[s]tate, [and]
locality . . . ." 489 U.S. at 693 (citations omitted).
Plaintiffs also confront dictum of the D.C. Court of Appeals that the Guarantee Clause
"applies to the states and cannot be read to restrict the power of Congress to
legislate for the
District." Darby v. United States, 681 A.2d 1156, 1158 (D.C. 1996), cert. denied, 117
S. Ct. 596
(1997). Plaintiffs argue, however, that a D.C. Court of Appeals decision is not
preclusive, that its
dictum is supported by no relevant Supreme Court authority, and that the issue in Darby
about
jurisdiction of the D.C. courts involved a quite different question from those posed here.
It
appears that no case binding on this court resolves the question whether, in the context
here, the
District may or should be treated as State for the purpose of Article 4, 4. Cf,
District of
Columbia v. Carter, 609 U.S. 418, 420, 93 S. Ct. 602, 604 (1973).
The plaintiffs contend that no court has ruled authoritatively on the question whether a
republican form of government, as that term is used in the Constitution, is denied [page
5] to
other persons unrepresented in the body that has authority "[t]o exercise exclusive
Legislation . . .
over" them and the District in which they live. Article IV, 4, obligates
"[t]he United States" (not
just the Congress) to "guarantee to every State . . . a Republican Form of
Government, and [to]
protect each of them against Invasion . . . and . . . against domestic Violence." If,
as it seems
apparent, Article IV, 4, obligates the United States to afford the District and its
residents the
same protection from "Invasion" and "domestic Violence" as is enjoyed
by the several states and
their residents, it may follow that, to the extent, if any, that Article IV guarantees to
the states and
their residents a republican form of government vis-a-vis the legislature that governs
them, the
District and its residents are entitled to the same guarantee -- irrespective of whether
the District
is a State for the purpose of the Guarantee Clause. The plaintiffs' claims are not
rendered
"obviously without merit" by cases suggesting that the Guarantee Clause
necessarily involved a
political question. See New York v. United States, 505 U.S. 144, 183-86, 112 S. Ct. 2408,
2432-33 (1992).
Further, it is not obvious that plaintiffs' equal protection claim is frivolous. The mere
fact that
plaintiffs are not challenging a statute that draws explicit distinctions between the
District of
Columbia and other federal enclaves with respect to apportionment does not establish
conclusively that they are not challenging an arguably discriminatory distinction drawn by
Congress and affected by the apportionment process conducted periodically by defendants.
Therefore the equal protection claim is not obviously without merit.
Then there is the Twenty-third Amendment, 1 of which states: [page 6] "The
District
constituting the seat of Government of the United States shall appoint in such manner as
the
Congress may direct: A number of electors of President and Vice President equal to the
whole
number of Senators and Representatives in Congress to which the District would be entitled
if it
were a State, but in no event more than the least populous State; they shall be in
addition to those
appointed by the States, but they shall be considered, for the purposes of the election of
President
and Vice President, to be electors appointed by a State; and they shall meet in the
District and
perform such duties as provided by the twelfth article of amendment." (emphasis
added). It could
be argued that the plaintiffs' claims would mean that the Twenty-third Amendment was
superfluous. C, Hobson v. Tobriner, 255 F. Supp. 295, 300 (D.D.C. 1966); Adam H. Kurland,
Partisan Rhetoric, Constitutional Reality, and Political Responsibility: The Troubling
Constitutional Consequences of Achieving D.C. Statehood by Simple Legislation, 60 Geo.
Wash.
L. Rev. 475 (1992). While this might be a significant issue in resolving the merits, it
cannot be
decisive at this stage. Constitutional interpretation that renders a provision of the
Constitution
superfluous may be disfavored, but it does not make the proposed interpretation patently
frivolous. See, e.g., United States v. Stanley, 483 U.S. 669, 682 n.6, 107 S. Ct. 3054,
3063 n. 6
(1987); Sanford Levinson, Accounting for Constitutional Change, 8 Const. Commentary 409,
422-28 (1991).
Or perhaps the language of the Amendment underscored above dooms the plaintiffs'
allegations: it seems to imply that the District is not entitled to representation in
Congress. But the
implication is not strong enough to extinguish the plaintiffs' claims at the threshold of
their suits. If
the Constitution entitled the District to voting representation in Congress before the
Twenty-third
Amendment, the underscored language did not [page 7] unquestionably work a repeal. If the
Constitution did not entitle the District to voting representation in Congress prior to
the
Amendment, the Amendment is irrelevant to the analysis -- no one is arguing that it
created such
an entitlement. And there does not seem to be evidence that the Twenty-third Amendment was
intended to resolve ambiguity about the right of District citizens to vote in Congress.
See David
E. Kyvig, Explicit & Authentic Acts. Amendment the U.S. Constitution 1776-1995, at
35255
(1996). The language of the Twenty-third Amendment very likely reflects the assumption
that
District citizens had no right to elect voting members of Congress. See H. Rep. No.
86-1698, at
2-3, reprinted in 1960 U.S.C.C.A.N. 1459, 1460-61. But the assumptions of the participants
in
the drafting and ratifying of the Twenty-third Amendment do not necessarily indicate the
proper
interpretation of constitutional provisions adopted by the Founders. In addition, the
underscored
language appears to have been chosen merely to conform closely to the formulation of
Article II,
1 -- "Each State shall appoint . . . a Number of Electors, equal to the whole
Number of Senators
and Representatives to which the State may be entitled in Congress" -- rather than to
affect the
right to elect voting members of Congress. See H.R. Rep. No. 86-1698, at 4 (1960),
reprinted in
1960 U.S.C.C.N. 1459, 1462.
Even if there is some apparent tension between the Twenty third Amendment and Article 4, 6
4, that would not render the plaintiffs' claims wholly insubstantial. If essence of the
ideal
republican form of government is the right to representation in the governing legislature,
see. e.g.,
4 The Debates in the Several State Conventions on the Adoption of the Federal Constitution
328
(Jonathan Elliot ed., 2d ed. 1836) ("A republic, [page 8] where the people at large,
either
collectively or by representation, form the legislature.") (speech of Charles
Pickney, S.C.); cf. The
Federalist No. 71, at 483 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) ("The
tendency of the
legislative authority to absorb every other, has been fully displayed and illustrated by
examples . .
In governments purely republican, this tendency is almost irresistible.") (emphasis
added), then the
Twenty-third Amendment's establishment of a right to a voice in the selection of the
President and
Vice-President, as distinguished from the national legislature, would be essentially
outside the
domain of the Guarantee Clause. So the Twenty-third Amendment may have been necessary
because it provided a right to elect a President, not the Fourteenth Amendment guarantee
of a
republican form of government.
The plaintiffs' claims also cannot be dismissed out of hand on the basis of the failure of
the
several states to ratify a proposed constitutional amendment stating that the District
would be
treated as a State "for purposes of representation in Congress." H.R.J. Res.
554, 1, 95th Cong.
(1978); See H.R. Rep. No. 95-886 (1978). The proposed amendment received the support of
two-thirds of the members of the House and of the Senate, but was ratified by only 16
states --
much fewer than the 38 required -- during the period provided for ratification. See Kyvig,
supra,
at 420-25. Although the congressional proponents of the proposed amendment maintained that
"[i]f the citizens of the District are to have voting representation in..the
Congress, a constitutional
amendment is essential," H.R. Rep. No. 95-886, at 4, a failed constitutional
amendment does not
alter the meaning of the Constitution, and the views of a failed amendment's congressional
supporters have no well-established significance. [page 9]
Plaintiffs theories are unique. They may well founder, for example, on the specific
reference
to "states" in the relevant constitutional clauses, the structure of the
Constitution, or the Congress'
exclusive legislative authority over the District of Columbia. The issues that they raise
also may
turn out to be non-justiciable political questions, even though the concept of
justiciability is
becoming murkier and murkier. See United States House of Representatives v. United States
Dep't of Commerce. et al, No. 98-0456, 1998 U.S. Diet. LEXIS 13133 at *31, 57-61
(D.D.C. Aug. 24, 1998). Nonetheless, the claims plaintiffs present are sufficiently
tenable to
justify reference of the case to a three-judge district court.
III.
Finally, plaintiffs argue that this case "comes within the requirements of the . .
three-judge
statute," and therefore satisfies the third prong of the Police Officers Guild
standard. 369 F. Supp.
at 548-49. That statute, to reiterate, calls for a three-judge court when a case
challenges "the
constitutionality of the apportionment of congressional districts." 28 U.S.C.
2284(a). For the
purpose of this statute, apportionment means the allocation of congressional districts
"among
units entitled to representation." Black's Law Dictionary 99 (6th ed. 1990).
Defendants are
correct that the District of Columbia is not apportioned a congressional district under
the current
apportionment scheme. The District's exclusion from apportionment, however, does not mean
necessarily that plaintiffs' case does not challenge the constitutionality of the
apportionment of
congressional districts. In fact, such exclusion, and plaintiffs' prayer for a declaration
that the
[page 10] District cannot constitutionally be left out of the apportionment process,
indicate that
the core of plaintiffs' case is a challenge to the apportionment of congressional
districts. It seems
clear that an apportionment that, for example, allocated no representatives at all to
Alaska could
be challenged under 2284(a). It would be odd if a plaintiff could invoke
2284(a) where a state
was allocated some fraction of the districts to which it were entitled, unless it were
allocated no
districts at all. Admittedly, it would not be absurd if 2284(a) operated that way.
The
Constitution explicitly requires that "each state shall have at least one
representative." Art. I, 2,
cl. That explicit constitutional directive might have prompted Congress to distinguish
between an
allocation of no representatives and any other allocation of too few districts. But the
plain
language of 2284(a) does not reflect such a distinction. In fact, there is no
evidence that
Congress made that distinction. The case law that defendants invoke, see. e.g., City of
Philadelphia v. Klutznick, 503 F. Supp. 657, 658 (E.D. Pa. 1980) (denying application for
three-judge court because "[n]o existing apportionment is challenged here");
Federation of
American Immigration Reform v. Klutznick, 486 F. Supp. 564, 577 (D.D.C. 1980), does not
prove otherwise. In Philadelphia, the city of brotherly love was not complaining about the
number
of congressional districts allocated to the Commonwealth of Pennsylvania or to the city;
it was
concerned about census practices that might affect a future allocation. The situation in
FAIR was
similar: the court concluded that plaintiffs were simply "challeng[ing] . census
practices
Potentially affecting allocations of House members to states," 484 F. Supp. 577
(emphasis added),
rather than an existing [page 11] allocation. These plaintiffs, in contrast, do challenge
their
existing allocation of zero representatives. Accordingly, the third prong of the Police
Officers
Guild standard is satisfied.
IV.
Although the details of their arguments differ on some points, both sets of plaintiffs
base their
claims on equal protection and a guaranteed right to a republican form of government. The
plaintiffs in Alexander v. Daley advance additional constitutional arguments. And the
Alexander
complaint, unlike the Adams complaint, maintains that the constitution entitled citizens
of the
District to voting representation in the United States Senate. Since the intersection of
the two
cases falls within the scope of 28 U.S.C. 2284(a), it is not necessary to discuss
the details of the
additional theories of the Alexander plaintiffs at this time. Cf. 22 Moore's Federal
Practice
404.02[2] [d] [i] (3d ed. 1998) (noting three-judge court has discretion to retain
jurisdiction of
non three-judge claims).
For all the reasons discussed above, the Chief Judge of this Circuit is requested to
assign two
other judges to participate in hearing and determining the plaintiffs' complaints for
injunctive and
declaratory relief.
Louis F. Oberdorfer, United States District Judge [signed November 6, 1998]
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