REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO DISMISS OF DEFENDANTS ROBIN H. CARLE AND WILSON LIVINGOOD IN ADAMS ET AL. V. CLINTON. ET AL.

On September 18, defendants Robin H. Carle and Wilson Livingood, the Clerk and Sergeant at Arms, respectively, of the United States House of Representatives (collectively, the "House Officers"), moved to dismiss the claims asserted against them on justiciability grounds, as well as on the merits. See Motion to Dismiss of Defendants Robin H. Carle and Wilson Livingood (Sept.18, 1998) ("Motion to Dismiss"). On November 2, plaintiffs filed a lengthy joint opposition to our motion and to President Clinton's motion to dismiss. See Plaintiffs' [page 2] Opposition to the Federal Defendants' Motions to Dismiss the Case (Nov. 2, 1998) ("Opposition"). As we show below, the Opposition fails to demonstrate either that the Court has jurisdiction to grant any relief against the House Officers, or that plaintiffs are entitled to any relief whatever on the merits.

DISCUSSION

The central allegation of this case, as we understand it, is that District of Columbia citizens are being deprived of their constitutional right to vote for congressional representatives. The central objective of the case, again as we understand it, is to redress that alleged constitutional deprivation. Complaint at 1, Relief Sought at A.3.a. In our Motion to Dismiss, we characterized plaintiffs' Complaint as seeking to force Congress to pass, and the President to sign, legislation which either grants statehood to the District of Columbia or reunifies the District with an existing state (unspecified, but presumably Maryland). Motion to Dismiss at 1. Some of our justiciability arguments turned, at least in part, on this understanding of the relief plaintiffs seek.

Plaintiffs now say we have mischaracterized the relief they seek. "The Plaintiffs do not ask this Court for any order, directive, or mandate that any Federal Defendant take any action." Opposition at 1 (emphasis in original). In light of this representation, a closer look at the relief plaintiffs have actually requested is warranted. With respect to the House Officers, plaintiffs specifically ask this Court

[to enjoin the Clerk to] not certif to any State any number of Representatives apportioned to the State other than the minimum number of Representatives to which each State is entitled under Section Two of Article One of the Constitution..., which number is one, until such time as the District of Columbia... is admitted [page 3] as a sovereign State on equal footing with all other sovereign States . . . or until such time as the District of Columbia . . . is unified with a previously-existing State

Complaint, Relief Sought at C.2a (emphasis added);

[to enjoin the Clerk to] not enroll as members of the House of Representatives any more than the minimum number of Representatives to which each State is entitled under Section Two of Article One of the Constitution..., which number is one member per State, until such time as the District of Columbia. . is admitted as a sovereign State on equal footing with all other sovereign States... or until such time as the District of Columbia. is unified with a previously-existing sovereign State....

Id. at C.2b (emphasis added);

[to enjoin the Sergeant at Arms to] not admit to the Hall of the House of Representatives for sessions of the House any more than the minimum number of Representatives to which each State is entitled under Section Two of Article One of the Constitution..., which number is one member per State, until such time as the <« District of Columbia... is admitted as a sovereign State on equal footing with all other sovereign States... or until such time as the District of Columbia... is unified with a previously-existing sovereign State....

Id. at C.3 (emphasis added). [footnote 1: The plaintiffs seek similar relief against the President. Complaint, Prayer for Relief at C.la., Cib.]

Obviously, therefore, plaintiffs have not literally asked this Court to enjoin Congress to pass, or the President to sign, legislation. However, the various injunctions plaintiffs have requested would not redress their grievances (that is, would not create congressional voting rights for District citizens), but would have the effect of shutting down the legislative and executive branches of government, thereby precipitating a constitutional crisis of the first magnitude. For [page 4] this reason, and because plaintiffs make clear that they intend to use such extraordinary injunctive relief to extort action from Congress and the President - such injunctions to be maintained "until such time as the District of Columbia. .. is admitted as a sovereign State on equal footing with all other sovereign States... or until such time as the District of Columbia.. is unified with a previously-existing sovereign State...." (relief which could be provided, if at all, only by Congress and the President through legislation) - our characterization of the real relief plaintiffs seek is fair and appropriate.

I. The Complaint Must Be Dismissed for Lack of Jurisdiction.

A. Plaintiffs Lack Standing to Sue the House Officers.

In our Motion to Dismiss, we demonstrated that plaintiffs lack Article III standing because (1) there is no causal nexus between their alleged injury and the actions of the House Officers that are challenged the Clerk's transmission of apportionment numbers to the states, her maintenance of the roll of Representatives, and the Sergeant at Arms' admission of Representatives to the floor of the House), and (2) the relief plaintiffs seek requires action by parties not before the Court, namely Congress and/or the State of Maryland. Motion to Dismiss at 3-6.

With respect to the causation aspect of the inquiry, plaintiffs assert, without analysis, that the House Officers are "dispositive links in the 'chain of causation' ... of the apportionment process." Opposition at 3 (citing Public Citizen v. Lockheed Aircraft Con,., 565 F.2d 708, 717 n.3 1 (D.C. Cir. 1977)). This is wrong for several reasons. First, plaintiffs are not challenging any apportionment. They are challenging the fact that District citizens do not vote for congressional representatives, which obviously stems from the fact that the District is not a [page 5] "State" for purposes of article I, 2, cl. 1 of the Constitution. There can be no doubt that the District would be included in the apportionment process were the District deemed to be a State, or part of a State, for purposes of article I, 2, cl. 1. However, until that issue is resolved in plaintiffs' favor, there simply is no apportionment issue. [footnote 2: Franklin v. Massachusetts, 505 U.S. 788 (1992), and United States Dep't of Commerce v. Montana, 503 U.S. 442 (1992), are not on point for this reason and because the Clerk of the House did not contest plaintiffs' standing in those cases. Instead, since the executive branch officials were proper defendants, the Clerk simply relinquished the defense of those cases to the executive branch officials and agreed to be bound by any judgment rendered. See Commonwealth of Massachusetts v. Mosbacher, 785 F. Supp. 230, 233 n.l (D. Mass.) (Clerk "stipulated that he will be bound by the judgment entered.'1), rev'd, 505 U.S. 788 (1992); Stipulation in Montana v. United States Dep't of Commerce, No. CV-91-22-H-CCL (July 1, 1991) ("Clerk... [agrees that he] shall be bound by any judgment, preliminary injunction or temporary restraining order entered in this case."), attached hereto. In any event, even if the House Officers were part of some "chain of causation," plaintiffs' causation arguments would still lack merit because their lack of voting representation in Congress also stems from their choice of residence in the District, a wholly volitional act that breaks any chain of causation. See, e.., Petro-Chem Processing Inc. v. EPA, 866 F.2d 433, 438 (D.C. Cir. 1989); McKinney v. United States Dep't of the Treasurv, 799 F.2d 1544, 1555-56 (Fed. Cir. 1986).]

Second, to the extent plaintiffs are challenging an apportionment, the acts of the House Officers that are at issue here simply did not "cause," in any meaningful sense of that word, plaintiffs' lack of voting representation in Congress. The touchstone after all is whether plaintiffs' injury "fairly can be traced to the challenged action of the defendant." Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 41(1976) (emphasis added). The Courts have repeatedly denied standing where plaintiffs have alleged that defendants encouraged or contributed in some speculative fashion to plaintiffs' injuries. See, e.g., id. at 41-43; Winpisinger v. Watson, 628 F.2d 133, 139 (D.C. Cir. 1980). This case is easier still because [page 6] there cannot be any serious suggestion that the Clerk's transmission of apportionment numbers to the States, her maintenance of the roll of Representatives, or the Sergeant at Arms' admission of Representatives to the floor of the House encourages or contributes in any manner to plaintiffs' lack of congressional voting rights. Indeed, none of the House Officers' actions even occur until after plaintiffs' injury is complete, that is, after an apportionment and an election occur. See 2 U.S.C. 2a(a). By the same token, plaintiffs' injury would continue to exist even if the House Officers did not engage in the administrative functions that are challenged here.

With respect to the redressability aspect of the standing inquiry, plaintiffs say that House Officers' arguments lack merit because plaintiffs "don't ask the Court to enter an order mandating or directing any legislation." Opposition at 4. However, this places plaintiffs on the horns of an intractable dilemma. The "literal" relief they have requested - injunctions against the House Officers and the President that would shut down the legislative and executive branches of the government - self-evidently would not afford plaintiffs the relief they seek, in and of itself. On the other hand, the real relief they seek - forcing Congress to pass, and the President to sign, legislation which either grants statehood to the District or reunifies the District with an existing state - founders on the Supreme Court's clear holding that redressability is not established where a favorable outcome for plaintiffs "depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict ere, Congress and/or the State of Maryland]." Asarco Inc. v. Kadish, 490 U.S. 605, 615 (1989). See also 15 Moore's Federal Practice at 101 .42[5] (3rd ed. 1998) ("Redressability cannot rest on the assumption that a nonparty to the action will act in a certain way on the basis of a decision in plaintiff's favor, and [page 7] that such action would ultimately redress plaintiff's injury. [footnote 3: The standing analysis is not altered by the fact that plaintiffs also seek declaratory relief, Complaint, Prayer for Relief at A, B, since "[by itself, a declaratory judgment cannot be the redress that satisfies the third [j., redressability] standing prong." Comite de Apovo a Los Trabajadores Agricolas v. Dep't of Labor, 995 F.2d 510, 513 (4th Cir. 1993).]

In short, plaintiffs lack standing because the necessary "causal connection" is absent and because a decision in plaintiffs' favor is not likely to redress their injuries.

B. The Court Is Barred by the Separation of Powers Doctrine from Granting the Relief Plaintiffs Seek.

We also argued that the separation of powers doctrine constrains the Court from directly compelling Congress to pass (and the President to sign) legislation, and from indirectly holding Congress (and the country) hostage until Congress enacts, and the President signs, legislation satisfactory to plaintiffs. Motion to Dismiss at 6. As best we can tell, plaintiffs' response is essentially twofold. First, they deny they are actually seeking to force Congress and the President to act. Opposition at 12-13. This is not an accurate characterization of what this case is about as we have shown above.

Second, plaintiffs insist that the separation of powers doctrine does not bar the Court from reviewing legislative acts for conformity with the Constitution. Opposition at 13, 14. This is true as a general proposition, but irrelevant. Plaintiffs have not challenged the constitutionality of any act of Congress (or, if they have, they have not identified it).

C. Plaintiffs' Claims Against the House Officers Are Barred by the Speech or Debate Clause of the Constitution.

We also showed that plaintiffs' claims against the House Officers are barred by the Speech or Debate Clause of the Constitution. Motion to Dismiss at 7-10. Plaintiffs appear to [page 8] acknowledge, as they must, that the Speech or Debate Clause protects congressional officers and employees from being civilly prosecuted for any activities that fall within the "sphere of legitimate legislative activity." Eastland v. United States Servicemen's Fund, 421 U.S. 491, 501 (1975). They also appear to acknowledge, at least implicitly, that the Court must "read the Speech or Debate Clause broadly to effectuate its purposes." Id.

Nevertheless, plaintiffs say as an initial matter that the Speech or Debate Clause does not apply here because "the only actions of the House Officers which are at issue in this case are official acts taken under the authority of final Acts of Congress." Opposition at 20. However, even if true, this is irrelevant. That the Clerk acts pursuant to 2 U.S.C. 2a(b) in transmitting apportionment numbers to the States; that she acts pursuant to 2 U.S.C. 26 in making a roll of Representatives whose credentials show they were elected in accordance with the laws of the United States; and that the Sergeant at Arms acts pursuant to 2 U.S.C. 78 (and House Rule XXXII) in controlling access to the floor of the House, is neither here nor there as far as the Speech or Debate Clause is concerned. The only issue is whether those activities are

"an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.''

Eastland, 421 U.S. at 504 (quoting Gravel v. United States, 408 U.S. 606, 625 (1972)). If the challenged activities fall within that definition, the House Officers are immune from suit.

Plaintiffs go on to argue that the activities of the House Officers challenged here are not within the "sphere of legitimate legislative activity." Their analysis, however, is flawed. First, [page 9] plaintiffs say that Consumers Union of United States Inc. v. Periodical Correspondents' Ass'n, 515 F.2d 1341 (D.C. Cir. 1975), cert. denied, 423 U.S. 1051(1976), is not applicable here because "[t]he Rule which barred Consumers Union was crafted to protect those ongoing sessions of Congress and the members of Congress from disruption by nonmembers. But the plaintiffs in the instant case are not seeking to be present during any Congressional proceedings, nor to have access to Congress of any kind." Opposition at 23.

However, plaintiffs' "distinction" completely misses the point. It does not matter whether plaintiffs are seeking to be present in the House or seeking access to Congress. What matters is the nature of the House Officers' actions that are being challenged. Like the Sergeants at Arms' control of access to the periodical press galleries (which Consumers Union held to be protected), the Sergeant at Arms' control of access to the floor of the House and the Clerk's maintenance of the roll of Representatives clearly are "acts generally done in relation to the business before Congress," are an "integral part of the legislative machinery," and are "an integral part of the deliberative and communicative processes" of the House. Consumers Union, 515 F.2d at 1350 (citations omitted). Accordingly, with respect to these actions, the Sergeant at Arms and the Clerk are clearly immune from suit under the Speech or Debate Clause. [footnote 4: Plaintiffs make the same mistake in attempting to distinguish Browning v. Clerk U.S. House of Representatives, 789 F.2d 923 (D.C. Cir.), cert. denied, 479 U.S. 996 (1986). Opposition at 24. The significance of Browning is not the particular activity in which the dismissed employee had engaged, but rather the Court's broad holding that the "standard for determining Speech or Debate Clause immunity is best expressed as whether the employee's duties were directly related to the due functioning of the legislative process." Id. at 929. Obviously, the Sergeant at Arms' control of access to the floor of the House and the Clerk's maintenance of the roll are "directly related to the due functioning of the legislative process." Plaintiffs' reliance on Powell v. MeCormack, 395 U.S. 486 (1969), for the proposition that the Speech or debate Clause does not apply here is also misplaced. The pertinent facts of Powell were as follows: In 1967, early in the 90th Congress, the House voted to exclude Adam Clayton Powell who had been reelected to the House from New York. Powell sued the Speaker and other Members of the House, challenging the constitutionality of his exclusion and seeking to enjoin the Speaker from refusing to administer the oath of office. Powell also sued the officers of the House to enjoin them to carry out their responsibilities to him as a representative, including payment of his congressional salary by the Sergeant at Arms. Id. at 493-94. Subsequent to the grant of certiorari, the 90th Congress ended and Congressman Powell was reelected and seated in the 91st Congress, thereby mooting his claim to be seated in the 90th Congress. However, because "Powell's claim for back salary [against the House officers] remain[ed] viable " id at 496, the Court proceeded to decide the case and, in so doing, rejected their Speech or Debate Clause defense. Id. at 501-06. However, Powell does not help plaintiffs here because their suit is not predicated on the failure of a House officer to pay the salary of an elected Representative.]

[page 10]

With respect to the claim against the Clerk that rests on her transmission of apportionment numbers to the States, plaintiffs say that "the House Officers present no reason to conclude that the means, methods, results, purposes, and applications of the census are somehow wholly immune from judicial review. In fact, the taking of the census and its repercussions are reviewable." Opposition at 25 (emphasis removed). However, even if that is true, plaintiffs have once again missed the point, which is not that the census is immune from review. Rather, the point is that the Speech or Debate Clause prevents the plaintiffs from suing the Clerk of the House to obtain such review because her actions directly relate, not to legislative activity as such, but to "other matters which the Constitution places within the jurisdiction of either House, Gravel, 408 U.S. at 625, namely the census power. [footnote 5: Plaintiffs' reliance on Franklin and Montana to support their Speech or Debate argument, Opposition at 20-21, is misplaced. Because of the stipulations he entered into, the Clerk did not raise the Speech or Debate issue in those cases. See supra note 2.]

[page 11]

Finally, plaintiffs insist that the Speech or Debate Clause does not apply because they are challenging the House Officers' enforcement of prior congressional decisions which unconstitutionally discriminate against them. Opposition at 19, 23, 26. This argument suffers from two enormous flaws. First, plaintiffs have not specifically challenged any prior congressional action. Second, the whole point of the Speech or Debate Clause is that it immunizes all activities "within the 'legislative sphere' ... even though the conduct if performed in other than legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes." Doe v. McMillan, 412 U.S. 306, 312-13 (1973) (quoting Gravel, 408 U.S. at 624-25) (emphasis added).

For all these reasons, the House Officers are immune under the Speech or Debate Clause of the Constitution.

D. Plaintiffs' Complaint Is Barred by the Political Question Doctrine.

We also asserted in our Motion to Dismiss that the Court lacks jurisdiction because plaintiffs' Complaint is barred by the political question doctrine. We first argued that plaintiffs' effort to force Congress to pass, and the President to sign, legislation which either grants statehood to the District of Columbia or reunifies the District with an existing state raises inherently political questions inasmuch as the choice whether or not to legislate rests solely with Congress (and the choice whether or not to sign legislation rests solely with the President). Motion to Dismiss at 10-11. [footnote 6: See also Igartua de La Rosa v. United States, 842 F. Supp. 607, 609-10 (D.P.R. 1994), aff d, 32 F.3d 8 (1St Cir. 1994) (contention that Puerto Rico is a de facto state for purposes of voting in presidential elections is a political question; plaintiffs "should address their views and concerns to the Congress of the United States, and not to this Court.").] Plaintiffs do not dispute this, although they deny again that they [page 12] are seeking to force Congress and the President to act, Opposition at 5, an argument to which we have already responded. [footnote 7: Plaintiffs also coyly assert that "this case seeks declarations that certain manifestations of Congress's 'exercise of legislative authority' over the District of Columbia violate other provisions of the Constitution." Opposition at 11 (emphasis in original). We are at a loss to respond to this kind of argument since it is entirely unclear what plaintiffs are referring to. If plaintiffs are in fact challenging the constitutionality of some act of Congress, it would behoove them to identify it, as we have been unable to.]

We argued secondly that, with respect to Count Two of the Complaint, the Supreme Court and the lower courts have repeatedly held that "challenges to congressional action on the ground of inconsistency with [article IV, 4 of the Constitution) present no justiciable question." Baker v. Carr, 369 U.S. 186, 224 (1962). Plaintiffs grudgingly acknowledge that "there is some authority for this proposition." Opposition at 5. Indeed there is. That authority includes a square holding by this Court, Hobson v. Tobriner, 255 F. Supp. 295 (D.D.C. 1966), and a long line of decisions by the Supreme Court and the lower courts. See Motion to Dismiss at 11-12. Plaintiffs nevertheless refuse to acknowledge this line of cases, making four arguments to which we respond in turn.

1. Plaintiffs first recite the Supreme Court's musing in dicta in New York v. United States, 505 U.S. 144, 185 (1992), that "perhaps not all claims under the Guarantee Clause present nonjusticiable political questions." This dicta does not even purport to suggest what sorts of Guarantee Clause claims, if any, might be justiciable and we are aw&e of no court which has acted upon this dicta.

[page 13]

2. Plaintiffs next assert that some courts have actually addressed Guarantee Clause claims. Opposition at 57-58. However, none of the three cases they cite actually decided any Guarantee Clause claims. In Bates v. Jones, 131 F.3d 843 (9th Cir. 1997) (en banc), cert. denied, 118 5. Ct. 1302 (1998), which upheld a state constitutional amendment establishing term limits for state legislators, one concurring opinion discusses the Guarantee Clause, j. at 858-59 (Rymer, concurring), but the court's opinion does not mention it. Id. at 844-47. Hoxie School Dist. No.46 v. Brewer, 137 F. Supp. 364 (E.D. Ark.), aff'd, 238 F.2d 91 (8 Cir. 1956), was an action by Arkansas school officials to enjoin the defendants from interfering with the operation of a state school district on a desegregated basis. The Guarantee Clause was mentioned in passing by both the District Court and the Eighth Circuit inasmuch as the plaintiffs apparently identified the Clause as a basis for federal court jurisdiction (although not as the basis for a cause of action). 137 F. Supp. at 366-67; 238 F.2d at 94. However, the Clause is not otherwise discussed in either opinion and was not the basis for the merits decision. Similarly, in Downs v. Birmingham, 198 So. 231 (Ala. 1940), which concerned a provision of the Alabama Constitution that purported to restrict the state legislature from decreasing the salary of certain state and municipal officers, the Alabama Supreme Court refers to the Guarantee Clause in passing. Ld. at 234. However, no cause of action was based on the Clause and it is not otherwise discussed in, or the basis for, the decision. [footnote 8: Plaintiffs also refer to four cases cited in New York v. United States: Attorney General of the State of Michigan v. Lowrev, 199 U.S. 233 (1905); Forsvth v. City of Hammond, 166 U.S. 506 (1897); Duncan v. McCall, 139 U.S. 449 (1891); and Minor v. Happersett, 21 Wall. 162 (1874). These arc all old cases that preceded the Supreme Court's sweeping pronouncement in Colegrove v. Green, 328 U.S. 549, 556 (1946), that "[v]iolation of the great guaranty of a republican form of government in States cannot be challenged in the courts." Furthermore, in each case, the Supreme Court mentioned the Guarantee Clause almost as an afterthought, and found that no Guarantee Clause issue had been presented.]

[page 14]

3. Plaintiffs assert next that "most" cases that have refused to adjudicate Guarantee Clause claims would have required the court to choose between competing factions claiming to be the rightful government, and they argue that therefore the Court may adjudicate any Guarantee Clause claim that does not require the Court to make such a choice. Opposition at 58. This argument is wrong both because the conclusion does not follow from the premise and because the premise is incorrect. The Supreme Court and the lower courts have held Guarantee Clause claims nonjusticiable in a wide variety of cases that did not involve "competing factions" claiming to be the rightful government. [footnote 9: See, City of Rome v. U.S., 446 U.S. 156, 182 n.17 (1980) (municipality argued that Voting Rights Act of 1965 violated Guarantee Clause; court refused to rule because "issue is not justiciable"); Mountain Timber Co. v. Washington, 243 U.S. 219, 234 (1917) (claim that State workmen's compensation statute violated Guarantee Clause held nonjusticiable); Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 569 (1916) (Guarantee Clause challenge to amendment to state constitution "presents no justiciable controversy"); Texas v. United States, 106 F.3d 661, 666-67 (5th Cir. 1997) (holding nonjusticiable State's claim that federal immigration policy violated Guarantee Clause); California v. United States, 104 F.3d 1086, 1091(9th Cir. 1997) (same); Padavan v. U.S., 82 F.3d 23, 27-28 (2d Cir. 1996) (same); Chiles v. United States, 69 F.3d 1094, 1097 (ll Cir. 1995), cert. denied, 517 U.S. 1188(1996) (same); Hobson, 25SF. Supp. at 299 (Guarantee Clause challenge to provisions of D.C. Code providing for presidential appointment of commissioners not justiciable). See generally Baker, 369 U.S. at 224 ("Just as the Court has consistently held that a challenge to state action based on the Guaranty Clause presents no justiciable question so has it held, and for the same reasons, that challenges to congressional action on the ground of inconsistency with that clause present no justiciable question."); Colerove, 328 U.S. at 556 ("Violation of the great guaranty of a republican form of government in States cannot be challenged in the courts.").]

4. Finally, plaintiffs assert that no "clause in the Constitution is intended to be without effect" and that "[t]he theory that the Guarantee Clause is nonjusticiable means that it is [page 15] unenforceable and is, therefore a nullity." Opposition at 59. This argument reflects a lack of understanding of the nature of the political question doctrine. The fact that a constitutional claim is a nonjusticiable political question means only that enforcement of the provision is left to the political branches of government (rather than the judicial branch), not that the constitutional provision in question is a nullity. Baker, 369 U.S. at 210-11.

In short, plaintiffs have articulated no sound reason why this case should be treated any differently than the many other cases that have held Guarantee Clause claims to be nonjusticiable political questions.

II. Plaintiffs' Claims Must Be Dismissed for Failure to State a Claim.

A. The Republican Form of Government Claim.

In our Motion to Dismiss, we argued that the Guarantee Clause count of plaintiffs' Complaint fails to state a claim because (1) the Clause applies only to the States and not to the District, and (2) the Clause guarantees only that State governments will be republican in form, and provides no guarantee of participation in the federal government. Motion to Dismiss at 12-14. In response, plaintiffs advance several arguments, all of which lack merit and each of which we address in turn.

1. The Applicability of the Constitution to the District of Columbia in General Does Not Render the Guarantee Clause applicable to the District.

Plaintiffs devote the bulk of their energies to arguing that the District of Columbia is subject to the Constitution and that, therefore, its citizens must receive the benefit of the Guarantee Clause. Opposition at 62-68. We do not dispute that the District is subject to the Constitution. However, it does not follow that District citizens are the beneficiaries of every [page 16] provision of the Constitution in general, or of the Guarantee Clause in particular. Moreover, while plaintiffs quote from a host of cases, Opposition at 62-63, none stand for the proposition that the Guarantee Clause applies to the District or to political units other than the States as such.

Plaintiffs also argue that the Guarantee Clause applies beyond the States because Congress examines a prospective State's constitution in order to determine whether it establishes a republican form of government. See Scott v. Jones, 46 U.S. 343, 381(1847). However, the fact is that Congress examines a prospective State's constitution only because the citizens are about to form an actual State. It simply does not follow from this that the Guarantee Clause applies to non-State political units.

2. There Is No Basis for Reading the Guarantee Clause In Pari Materia with the Remaining Sections of Article IV.

Plaintiffs also argue that other sections of article IV of the Constitution which refer to "States" have been construed to apply to the District of Columbia and that, therefore, the Guarantee Clause must also be construed to apply to the District. Opposition at 61-62. This is incorrect for several reasons.

First, "in pari materia" is a principle of statutory construction only. See, e.., Crooker v. Bureau of Alcohol Tobacco & Firearms, 670 F.2d 1051, 1107 (1981). [footnote 10: See also Undercofler v. L.C. Robinson & Sons Inc., 141 S.E.2d 847, 849 (Ga. App. 1965) ("'Statutes in pan materia are those which relate to the same person or thing... or which have a common purpose."') (quoting Mavnard v. Thrasher, 48 S.E.2d 471, 473 (Ga. App. 1948)); Black's Law Dictionary 791(6th ed. 1990) ("Statutes in pan materia are those relating to the same person or thing or having a common purpose. This rule of statutory construction, that statutes which relate to the same subject matter should be read, construed and applied together so that the legislature's intention can be gathered from the whole of the enactments, applies only when the particular statute is ambiguous.") (citations omitted).] Plaintiffs cite, and we [page 17] are aware of; no cases in which this principle has been applied to constitutional interpretation.

Second, even if the principle did apply to constitutional interpretation, the various sections of article IV do not relate to "the same subject matter." Article IV of the Constitution is a grab bag of unrelated provisions: section 1 deals with full faith and credit; section 2 deals with privileges and immunities, and with extradition; and section 3 deals with the admission of new States into the Union, and with Congress' authority over the territories and other U.S. property. None of these is even remotely the same subject matter as the guarantee to the States of a republican form of government contained in section 4.

Finally, and in any event, plaintiffs have failed to establish that other sections of article IV have been construed to apply to the District, as we now show.

The Full Faith and Credit Clause. Plaintiffs cite three cases in which, they say, the Full Faith and Credit Clause was extended to the District of Columbia: Davis v. Davis, 305 U.S. 32 (1938); Washington Gas Light Co. v. Hsu, 478 F. Supp. 1262 (D. Md. 1979); and Fehr v. McHugh, 413 A.2d 1285 (D.C. App. 1980). In fact, construction of the Full Faith and Credit Clause was not at issue in those cases. Instead, the question was whether the courts of the District of Columbia were covered by a federal statute that extends to "[t]he records and judicial proceedings of any court of any [)State, Territory or Possession of the United States" full faith and credit in "every court within the United States and its Territories and Possessions." 28 U.S.C. 1738. Each case construed the statute to apply to the courts of the District of Columbia. [footnote 11: See also In re Tapp, 16 B.R. 315, 320-21 (Bankr D Alaska 1981) ("Full faith and credit, as applied to the Federal courts, is a statutory and not a constitutional doctrine. Article IV, 1 of the Constitution by its terms binds only the States.").]

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The Privileges and Immunities Clause. With respect to article IV, 2, cl. 1, plaintiffs cite Teare v. Committee on Admissions, 566 A.2d 23 (D.C. App. 1989), which involved a District bar rule that excluded applicants not possessing a J.D. degree from an ABA approved law school. Teare rejected the privileges and immunities argument raised without explicitly holding that the clause applied to the District. Id. at 29-30. Moreover, cases like Teare, which involve the District court system, are unique because Congress created the D.C. court system with the intention of making the District courts analogous to the State courts. See United States Javcees v. Superior Court, 491 F. Supp. 579, 582 (D.D.C. 1980); Jackson v. United States, 441 A.2d 1000, 1002 (D.C. App. 1982); Washington Gas Light Co., 478 F. Supp. at 1264.

The Extradition Clause. Finally, with respect to the Extradition Clause, plaintiffs cite Martin v. Marvland, 287 A.2d 823 ([).C. App. 1972), a case in which the District extradited a fugitive to Maryland. Martin, however, does not construe article IV of the Constitution. Instead, the case turns on the District's extradition statute which provides that the Chief Judge of the Superior Court shall cause a fugitive to be extradited "in the same manner and under the same regulations as the executive authority of a State is required to do." D.C. Code 23-704.

3. Cession of the District of Columbia Did Not Violate the guarantee Clause of the Constitution and, Even If It Had, Plaintiffs Would Not Be "Heirs" of the Violation.

Plaintiffs also argue that the cession of the District of Columbia in 1791 violated the Guarantee Clause because the citizens of the District had been residents of Maryland, and [page 19] therefore were unconstitutionally stripped of their rights under the Clause. Opposition at 59-61. This argument blithely ignores two cases which have held otherwise. See Reilly v. Lamar, 6 U.S. 344, 356-57 (1805) ("["By the separation of the district of Columbia from the state of Maryland, complainant ceased to be a citizen of that state, his residence being in the city of Washington at the time of that separation."); Hobson, 255 F. Supp. at 297 ("the effect of cession upon individuals was to terminate their state citizenship and the jurisdiction of the state governments over them.").

In any event, it is absurd to suggest, as plaintiffs do, that they are the "heirs and subjects of the original and continuing violations of the Clause." Opposition at 61. Plaintiffs have cited absolutely no authority for this argument.

4. The Guarantee Clause Does Not Assure a Republican Form of Government at the Federal Level.

Even if the Guarantee Clause applied to the District of Columbia, it still would not entitle plaintiffs to representation in Congress because the Clause only applies to the state level of government. Motion to Dismiss at 14. Although plaintiffs attempt to demonstrate that the Guarantee Clause entitles them to participation in the federal government, Opposition at 71-72, they are unable to cite a single case in support of this proposition.

Furthermore, aside from ignoring the plain language of art. IV, 4 - "The United States shall guarantee to every State in the Union a Republican Form of Government" - plaintiffs' argument is ultimately illogical. The Constitution itself establishes, principally in articles I-Ill, the republican form of the federal government. It makes no sense to suggest that the federal government is obligated by art. IV, 4, to guarantee that it remain republican in form, when that [page 20] very republican form is elsewhere established by the Constitution itself. [footnote 12: Plaintiffs also appear to contend that the Guarantee Clause entitles them not only to congressional voting rights, but also to a local government "insulated from Congressional interference in matters properly within the exclusive competence of state governments." Opposition at 67. The answer to this contention - in addition to the fact that the Guarantee applies only to the States - is the District Clause of the Constitution. U.S. Const. art. I, 8, cl. 17 ("The Congress shall have Power... To exercise exclusive Legislation in all cases whatsoever, over" the District of Columbia.). generally Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50, 76 (1982) ("Congress' power over the District of Columbia encompasses the full authority of government.") (emphasis in original); District of Columbia v. Carter, 409 U.S. 418, 422 (1973); Kendall v. United States, 37 U.S. 524, 619 (1838).]

Accordingly, Count Two of the Complaint fails to state a claim.

B. The Equal Protection Claim.

In our Motion to Dismiss, we pointed out that plaintiffs' Fifth Amendment equal protection claim must fail as an initial matter because they have not identified any statute or other act of Congress which denies them equal protection (and they are not entitled to challenge Congress' failure to legislate). Motion to Dismiss at 15. Plaintiffs' Opposition does nothing to remedy this deficiency. [footnote 13: This deficiency is particularly problematic in light of plaintiffs' assertion elsewhere that their equal protection rights could be vindicated by "placing the citizens of the other places the federal enclaves and the portion of the District that was retroceded to Virginia in 1846] into the same position as the Plaintiffs." Motion to Alter or Amend Memorandum and Order Consolidating the Cases at 2 of. 12, 1998). If the point of this lawsuit is really to strip other U.S. citizens of their right to vote for congressional representatives, it would be particularly helpful to know which acts of Congress are under attack. It might also be appropriate to give those other U.S. citizens an opportunity to intervene to defend their rights.]

We also argued that plaintiffs' equal protection claim necessarily fails because, as residents of the District, they are not similarly situated to residents of federal enclaves and residents of that portion of the District that was retroceded to Virginia in 1846. Id. at 15-18. Plaintiffs' strained contentions otherwise do not withstand scrutiny.

[page 21]

1. Plaintiffs argue first that they are the beneficiaries, or "under the aegis," of the Equal Protection Clause. Opposition at 40-41. We do not disagree. However, plaintiffs are subject to, and under the aegis of; the rest of the Constitution as well, including those provisions that limit congressional voting participation to residents of the States. See art. 1, 2, cl. 1 ("The House of Representatives shall be composed of Members chosen... by the People of the several States") (emphasis added); amend. XVII ("The Senate of the United States shall be composed of two Senators from each State. elected by the people thereof....") (emphasis added); art. 1, 2, cl. 3 (representatives to be apportioned "among the several States"); amend. XIV, 2 (same).

2. Second, plaintiffs say that the District of Columbia is not unique under the Constitution. Opposition at 41-46. The thrust of this argument is that because Congress has the same legislative authority over the District of Columbia that it has over federal enclaves, U.S. Const. art. 1, 8, cI. 17, District residents must have the same congressional voting rights as residents of federal enclaves.

However, the issue here is not one of legislative authority. For equal protection purposes, the only question, as plaintiffs themselves acknowledge, is whether District citizens are "denied the same protection of the laws which is enjoyed by other persons or other classes in the same place and under like circumstances." Opposition at 40 (quoting Missouri v. Lewis, 101 U.S. 22, 31(1879)) (emphasis added). The answer to this question does not lie in the District Clause. Rather, the answer is that plaintiffs are not denied equal protection because, for congressional voting and apportionment purposes, the Constitution elsewhere treats U.S. citizens who are State residents differently from U.S. citizens who are not State residents. See U.S. Const. art. 1, 2, cI. 1; amend. XVII; art. 1, 2, ci. 3; amend. XIV, 2. The citizens of the District are not citizens [page 22] of the States, as plaintiffs themselves acknowledge, Complaint at 35; Opposition at 50-51, [footnote 14: See also Hepburn and Dudas v. Ellzey, 6 U.S. 445 (1805); Corporation of New Orleans v. Winter, 14 U.S. 91, 94 (1816); Hobson v. Tobriner, 255 F. Supp. at 297.] just as U.S. citizens residing in the territories (who have no constitutional right to vote in any federal election) are not citizens of the States. [footnote 15: Congress has legislatively given American citizens residing in U.S. territories the right to elect a non-voting member of the House, , e.g., 48 U.S.C. 1711 (Guam and Virgin Islands), 1731 (America Samoa), just as it has done for District citizens. 2 U.S.C. 25a. However, unlike District citizens, American citizens who reside in the territories also lack the right to vote in Presidential and Vice-Presidential elections. See, e.., Att'y General of the to of Guam v. United States, 738 F.2d 1017, 1018-19 (9th Cir. 1984) (notwithstanding that plaintiffs were U.S. citizens and protected by the Equal Protection Clause, Constitution reserves right to participate in presidential elections to States; "[a] constitutional amendment would be required" to grant the relief requested which was not within the court's authority to grant). See also Igartua de la Rosa v. United States, 32 F.3d 8 (1st Cir. 1994) (same with respect to U.S. citizens residing in Puerto Rico). We note that just as the Constitution, for congressional voting purposes, draws a distinction between State residents and other citizens who are not State residents, it also distinguishes, for voting purposes, between citizens who are 18 years of age or older and citizens who are under 18. U.S. Const. amend. XXVI. The logic of plaintiffs' argument - that the Equal Protection Clause prohibits the Constitution from drawing lines, for voting purposes, between citizens of the States and other citizens - would also compel the conclusion that the Equal Protection Clause nullifies the line drawn in the 26th Amendment between those citizens who are 18 years of age or older and those citizens who are under 18.]

3. In the end, plaintiffs' equal protection claim boils down to this proposition: because Congress has done something (not specifically identified by plaintiffs) that resulted in citizens of federal enclaves obtaining the right to vote in congressional elections, and because Congress retroceded a small portion of the District to Virginia more than 150 years ago, Congress is therefore constitutionally obligated to do the same thing for the remaining portion of the District of Columbia today. Opposition at 46-48. However, this argument mistakes Congress' presumed [page 23] authority to legislate in a manner plaintiffs desire [footnote 16: As we have already pointed out, it is not at all clear that Congress could constitutionally legislate in the manner plaintiffs desire because of the 23rd Amendment. See Motion to Dismiss at 4 n.4. Plaintiffs have not discussed the 23rd Amendment in their Opposition.] with a constitutional obligation to act, and the fact is that Congress simply has no constitutional obligation to act. Similarly, the President is not constitutionally obligated to sign legislation, even if Congress were to pass it, and no State is constitutionally obligated to incorporate the District of Columbia within its boundaries (as Virginia chose to do with the retroceded portion of the District in 1846). See also President Clinton's Reply Memorandum in Support of His Motion to Dismiss the Claims Brought by Plaintiffs in Adams v. Clinton at 13-16 of. 20, 1998).

Furthermore, plaintiffs are wrong as a factual matter in asserting that residents of federal enclaves have the right to vote in congressional elections because Congress so legislated. Opposition at 46-47. In Evans v. Cornman, the Supreme Court noted that:

[NIH became a] federal reservation... [in) 1953 when the State of Maryland ceded jurisdiction over the property to the United States. Before that time, persons who resided on NIH grounds could register and vote in Montgomery County; they continued to do so apparently without question for another 15 years.

398 U.S. 419, 420-21(1970) (emphasis added). It was only when Montgomery County decided that persons who resided on NIH grounds did not meet Maryland's residency requirements that the Supreme Court held that the county's action denied equal protection to NIH residents. While the Court did note (in response to the County's argument that NIH residents are less interested in Maryland affairs than other residents), that Congress has "permitted the States to extend important aspects of state powers over federal areas," Ld. at 423, the Court did not say that NIH [page 24] residents would lack the right to vote absent such congressional action.

Furthermore, federal enclaves are substantively different from the District in other respects. Most importantly, creation of a federal enclave does not alter the boundaries of the state in which the enclave lies. See Howard v. Commissioners of Sinking Fund of City of Louisville, 344 U.S. 624, 626-27 (1953) ("When the United States, with the consent of Kentucky, acquired the property... the property did not cease to be a part of Kentucky. The geographical structure of Kentucky remained the same.... Kentucky's consent to this acquisition gave the United States power to exercise exclusive jurisdiction within the area."). The District, on the other hand, was created when Maryland "forever ceded and relinquished [the land] to congress and government of the United States," including "full and absolute right, and exclusive jurisdiction." Laws of Maryland, ch. XLV (Dec.19, 1791). The District was permanently separated from Maryland's borders, and Maryland's authority over the District permanently ceased. Upon the date of cession, residents of the District ceased to be residents of Maryland, and any corresponding rights or responsibilities they enjoyed as Maryland residents also ceased. See Reilly y. Lamar, 6 U.S. at 356-57. See also Howard v. State Administrative Board of Election Laws, 976 F. Supp. 350, 351 (F). Md. 1996) ("plaintiff who voluntarily moved to District has no right to vote in Maryland elections); Allbaugh v. Tawes, 233 F. Supp. 576, 577-78 (D. Md.), aff d, 379 U.S. 27 (1964) (District residents have no right to vote in Maryland elections because Maryland "forever ceded and relinquished to the Congress and Government of [page 25] the United States, []full and absolute right and exclusive jurisdiction."). [footnote 17: Plaintiffs cite several voting rights cases in support of their equal protection claim. Opposition at 48-49. However, all these cases are readily distinguishable because they involved governmental distinctions between qualified voters within a particular State or subdivision of a State. See, e.g., Reynolds v. Sims, 377 U.S. 533 (1964) (strict scrutiny merited where Alabama citizens within same jurisdiction treated differently); Wesberry V. Sanders, 376 U.S. 1(1964) (qualified voters within same state may not be treated differently); Gray y. Sanders, 372 U.S. 368 (1963) (same); Baker V. Carr, 369 U.S. 186 (state failed to reapportion itself which resulted in the unconstitutional dilution of the votes of some residents and while strengthening the votes of other residents).]

Accordingly, Count One of the Complaint fails to state a claim.

CONCLUSION

For all the reasons given, the Motion to Dismiss of Defendants Robin H. Cane and Wilson Livingood should be granted.

Respectfully submitted,

GERALDINE R. GENNET, General Counsel

KERRY W. KIRCHER, Deputy General Counsel

CAROLYN BETZ, Assistant Counsel