OPPOSITION OF DEFENDANTS JEFF TRANDAHL AND WILSON LIVINGOOD TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT IN ADAMS, ETAL V. CLINTON, ETAL

Plaintiffs in Adams, et al. V. Clinton, et al. are 20 citizens of the District of Columbia who claim to be aggrieved by the lack of congressional representation for the District. Complaint at 66-68, 92. [footnote 1: While article I, 2, el. 1 of the Constitution precludes the District from electing a representative to the House, the District has for many years elected a delegate to the House, pursuant to statute. See 2 U.S.C. 25a. The statute provides that while the delegate shall not have a vote in the House, he or she shall have the right of debate and all other privileges granted to representatives under article I, 6 of the Constitution. Id. In addition, the delegate is "elected to serve on standing committees in the same manner as Members of the House" and "possess [es] in such committees the same powers and privileges as the other members of the committee," including the right to vote. Rule III.3.(a), Rules of the House of Representatives (106th Cong.) (copy attached).] The named defendants include Jeff Trandahl and Wilson Livingood, the Clerk and [page 2] Sergeant-at-Arms, respectively, of the House of Representatives (collectively, "House Officers"). The House Officers have already moved to dismiss the Complaint on the grounds that (1) the Court lacks jurisdiction to hear the claims against them, and (2) the Complaint fails to state a claim upon which relief may be granted. See Motion to Dismiss of Defendants Robin H. Carle and Wilson Livingood (Sept.18, 1998) ("House Officers' Motion to Dismiss"). [footnote 2: Robin H. Carle resigned as Clerk of the U.S. House of Representatives, effective January 1, 1999. Jeff Trandahl was named Clerk of the House, effective January 2, 1999, and then was elected to that position when the full House convened on January 6. 145 Cong. Rec. H6-05 (Jan. 6, 1999). Pursuant to Rule 25(d)(l) of the Federal Rules of Civil Procedure, Mr. Trandahl is automatically substituted as a defendant for Ms. Carle.] That motion has been fully briefed and is now pending.

Plaintiffs have now filed a summary judgment motion. The motion must be denied as an initial matter because plaintiffs have not established the absence of a genuine issue of material fact as required by Rule 56(c). See House Officers' Response and Objections to Plaintiffs' Statement of Undisputed Facts in Adams, et al. V. Clinton, et al. (Feb. 8, 1999). The motion must also be denied because it fails to demonstrate that plaintiffs are entitled to judgment as a matter of law, as also required by Rule 56(c). Indeed, plaintiffs' motion merely repeats at very great length the arguments plaintiffs advanced in opposition to the House Officers' Motion to Dismiss on the merits. [footnote 3: See Plaintiffs' Opposition to Federal Defendants' Motions to Dismiss the Case Nov. 2, 1998) ("Plaintiffs' Opposition"). About the only thing new in plaintiffs' motion is their description of the relief sought. Plaintiffs initially sought - 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 with an existing state (unspecified, but presumably Maryland). Complaint at 25-28. At least for the moment, plaintiffs appear to have backed away from their request for injunctive relief. Instead, they now seek to defer their request for injunctive relief (somewhat as the plaintiffs in Alexander, et al. V. Daley, et al. have done):

[T]he Court should enter judgment in favor of the Plaintiffs, issuing the declaratory judgements requested.... Plaintiffs do not request injunctions at this time, but ask the Court to keep jurisdiction of the case for a period of time in which all counsel might confer, allowing counsel for the Plaintiffs to ascertain the degree to which injunctions would then appear to be required to protect the Plaintiffs from further injuries under the claims and facts presented in this case.

Memorandum of Points and Authorities in Support of the Motion for Summary Judgment in Favor of Twenty Citizens of the District of Columbia at 78 (Dec.22, 1998) ("Plaintiffs' Memorandum"). This change in position apparently is a reaction to certain of the House Officers' justiciability arguments such as standing and separation of powers. Plaintiffs have identified no legal basis for their deferral proposal and we are aware of none. Furthermore, recharacterizing the injunctive relief sought does not change the fact that (1) the declaratory relief plaintiffs seek is aimed at the actions and inactions of Congress (rather than the House Officers), Complaint at 22-24; (2) plaintiffs appear to contemplate that such declaratory relief would pressure Congress to legislate in a manner satisfactory to plaintiffs; (3) Congress is not a party to this suit and would not be bound by any judgment of this Court; and (4) there is no way to predict how Congress would respond (if at all) to the deferral plaintiffs envision. Therefore, as we have explained before, the Court should consider, in determining the various justiciability issues that this case presents, the request for injunctive relief actually articulated in plaintiffs' Complaint. See Memorandum of Points and Authorities in Support of the [House Officers'] Motion to Dismiss... and Opposition to Plaintiffs' Motion for Summary Judgment in Alexander, et al. V. Daley, et al. at 4-5 (Dec.18, 1998).] Those arguments were wrong before and they are wrong now.

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ARGUMENT

This case asks whether the District is constitutionally entitled to elect a congressional representative, notwithstanding the plain language of article I, 2, cl. 1 of the Constitution ("The [page 4] House of Representatives shall be composed of Members chosen... by the People of the several States") (emphasis added), and 200 years of history. This case is not about apportionment, although plaintiffs sometimes so characterize their claims. [footnote 4: For example, in their application for a three-judge court, plaintiffs characterized their case as an apportionment case to squeeze themselves into the narrow confines of 28 U.S.C. 2284(a). (Plaintiffs apparently did this to bypass the Circuit Court and give themselves a direct appeal to the Supreme Court under 28 U.S.C. 1253.). See also Plaintiffs' Memorandum at 15.] Were District residents determined to have the right to elect congressional representatives, there is no doubt that the District would be included in the apportionment process. However, until the first issue is resolved in plaintiffs' favor, there simply is no apportionment issue presented here.

Plaintiffs advance two theories in support of their quest for congressional voting rights. First, they say they are denied the equal protection of the laws because they lack congressional representation while citizens of unspecified federal enclaves have congressional representation in the states in which the enclaves are located, Complaint at 47-48, and because the residents of the portion of the District retroceded to Virginia in 1846 have congressional representation. Id. at 56-58. Second, they say they have been denied their right to a republican form of government under article IV, 4 of the Constitution ("The United States shall guarantee to every State in this Union a Republican Form of Government.1t). Complaint at 88-118.

We are compelled to point out, as an initial matter, that both claims are irrelevant to the ultimate legal question of whether District residents are entitled to vote in congressional elections. The only real issue is whether article I, 2, ci. 1 of the Constitution - "The House of Representatives shall be composed of Members chosen... by the People of the several States" - precludes District residents from voting in congressional elections. If so, it simply does not [page 5] matter whether plaintiffs can manufacture claims from other more general provisions of the Constitution such as the Equal Protection and Guarantee Clauses. The more specific provision of article 1, 2, cl. 1, which explicitly addresses the issue of voting in congressional elections, clearly would trump the more general provisions, even if there were a conflict. See, e.g., Attorney General of the Territory of Guam v. U.S., 738 F.2d 1017, 1018-19 (9th Cir. 1984), cert. denied, 469 U.S. 1209 (1985) (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); Igartua De La Rosa v. U.S., 32 F.3d 8 (1St Cir. 1994), cert. denied, 514 U.S. 1049 (1995) (same with respect to U.S. citizens residing in Puerto Rico).

On the other hand, if article 1, 2, cl. 1 must be read to permit District residents to vote in congressional elections, that is also the end of the matter. Plaintiffs' other claims would then be superfluous. Accordingly, before addressing plaintiffs' arguments and notwithstanding that plaintiffs have chosen to ignore article 1, 2, el. 1, we first show that that constitutional provision means exactly what it says.

I. Article 1, 2, ci. 1 Precludes District Residents from Voting in Congressional Elections.

By its plain language, article I, 2, cl. 1 limits voting in congressional elections to "the People of the Several States," and the courts have repeatedly held that the District of Columbia is not a State for constitutional purposes See e., Palmore v. U.S., 411 U.S. 389, 395 (1973) ("The District of Columbia is constitutionally distinct from the States."); Corporation of New Orleans v. Winter, 14 U.S. 91, 94 (1816) (District of Columbia is not "a state, in the sense in [page 6] which that term is used in the constitution."); Hepburn & Dundas V. Ellzey, 6 U.S. 445, 452 (1805) ("word state is used in the constitution as designating a member of the union" and excludes the District of Columbia); Reilly v. Lamar, 6 U.S. 344, 356-57 (1805) ("By the separation of the district of Columbia from the state of Maryland, the complainant ceased to be a citizen of that state, his residence being in the city of Washington at the time of that separation. "); Grether v. Wright, 75 F. 742, 757 (6 Cir. 1896). See also National Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 588 (1949) ("In referring to the 'States' in the [Constitution] ... the Founders obviously were not speaking of states in the abstract.").

Furthermore, the structure of our bicameral legislature - membership in the House proportionate to State population and equal membership in the Senate for the States - resulted from a compromise at the Constitutional Convention between the large and small States that hinged on the power each State would wield in the national legislature. See generally C. Herman Pritcheff, The American Constitution at 21-22 (2d ed. 1968). There is absolutely no evidence that the drafters contemplated extending such power beyond the States. This historical fact undercuts any contention that article I, 2, cl. 1 could be construed to extend membership in the House to non-States. [footnote 5: In addition, of course, the Constitution repeatedly uses different words to distinguish from the States geographic areas that are not States. See U.S. Const., art. 1, 8, cl. 17 (establishing the District as the seat of the federal government separate and apart from the States); art. IV, 3, cI. 2 ("The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States. ."); amend. XVIII, 1 ("[T]he manufacture, sale, or transportation of intoxicating liquors within. . . the United States and all territories subject to the jurisdiction thereof. . . is hereby prohibited.") (repealed by amend. XXI); amend. Xx', 2 ("The transportation into any State, Territory, or possession of the United States... of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."). This usage plainly suggests that the Framers and the drafters of constitutional amendments clearly understood the difference between States and non-States.]

[page 7]

Finally, any contention that the District is a State or like a State for purposes of article I, 2, cl. 1 is patently inconsistent with the 23rd Amendment. Article II, 1 of the Constitution establishes procedures to govern the participation of the States in the electoral college process. Because the District of Columbia, as a non-State, would not otherwise be entitled to participate in the electoral college process, it was necessary to adopt the 23rd Amendment which permits the District to participate in the electoral college process as "if it were a State." U.S. Const. amend. XXIII. The 23rd Amendment goes on to provide that electors chosen by the District "shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State." Id. Obviously, if the District were a State for constitutional purposes, the 23rd Amendment would have been unnecessary. [footnote 6: The 23rd Amendment is also a barrier to the assumption, implicit in plaintiffs' case, that Congress could constitutionally legislate voting rights for District residents. Legislation granting statehood to the District or reunifying the District with Maryland would be inconsistent with the 23rd Amendment which recognizes the District as a permanent non-State entity and provides for at least three presidential electors for the District. That amendment could be nullified only by another constitutional amendment. generally 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, 480 (1992) ("The Twenty Third Amendment cannot be ignored. If it is to be eliminated, a constitutional amendment is required. Accordingly, any D.C. statehood legislation should be made contingent upon the repeal of the Twenty-third Amendment."); U.S. Dep't of Justice, Office of Legal Policy, Report to the Attorney General on the Question of Statehood for the District of Columbia at 21-23 (1987). In addition, simple reunification legislation would appear to be inconsistent with article IV, 3, cl. 1, which would require Maryland to consent to any reunification with the District. See Phillips v. Payne, 92 U.S. 130 (1876); M'Laughlin v. Janney, 47 Va. 609 (1850); 124 Cong. Rec. 14357-63 (1978) (all describing the 1846 retrocession to Virginia of part of the District of Columbia, including the passage of two bills in the Virginia legislature, the first expressing the Commonwealth's willingness to accept the retrocession, and the second re-annexing and extending the Commonwealth's jurisdiction to the retroceded land). Maryland has been less than enthusiastic about the idea of retrocession. See, e.g., H. Rep. No.103-371, at 18 (1993) ("According to a recent survey, members of the Maryland House of Delegates and Senate overwhelmingly rejected retrocession, in statistical responses, and in anecdotal comments included in the survey.").]

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Plaintiffs have not addressed this issue in their summary judgment motion and, indeed, they elsewhere admit that the District "is neither a sovereign State nor a part of a sovereign State." Complaint at 35. See also Plaintiffs' Opposition at 50-51 ("Plaintiffs also agree [for purposes of their equal protection claim] that only citizens of 'States' are properly apportioned representation in Congress under the Constitution."). In light of the unmistakable meaning of article I, 2, cI. 1, this admission is fatal to plaintiffs' claims.

II. Plaintiffs' Equal Protection Claim Lacks Merit.

Count One of the Complaint asserts that plaintiffs are denied the equal protection of the laws because they lack congressional representation while the residents of unspecified federal enclaves have congressional representation in the states in which the enclaves are located, Complaint at 47-48, and because the residents of that portion of the District retroceded to Virginia in 1846 have congressional representation. Id. at 56-58. Count One is insubstantial and merits dismissal for several reasons.

1. First, the function of the equal protection guarantee is to permit courts to measure the validity of classifications actually drawn by legislatures. See, e.g., Parham V. Hughes, 441 U.S. 347, 358 (1979). Here, plaintiffs have not challenged any classification actually drawn by [page 9] Congress, other than perhaps 2 U.S.C. 2a. That statute, on its face, draws no distinction between District residents and others, and plaintiffs have not alleged that the House Officers (or the other defendants) have failed to comply with the statute

Instead, what plaintiffs really appear to challenge - aside from the Constitution itself -is the absence of legislation applicable to them. We are aware of no precedent that permits the Equal Protection Clause to be misapplied in this manner. Indeed, if the law were as plaintiffs suppose, equal protection challenges to Congress' failure to legislate would collide with the separation of powers doctrine, the Speech or Debate Clause and the political question doctrine, all of which prohibit the judiciary from compelling Congress to legislate. See House Officers' Motion to Dismiss at 6-12; Memorandum... in Support of the [House Officers'] Motion to Dismiss. . . in Alexander, et al. V. Daley, et al. at 14-20 (Dec.18, 1998).

2. Second, even if plaintiffs could challenge the absence of legislation on equal protection grounds, they could not succeed here. For equal protection purposes, the only question 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.'t Missouri v. Lewis, 101 U.S. 22, 31(1879) (emphasis added). The answer to this question here is that "the laws" do not deny plaintiffs equal protection. Instead, it is the Constitution that, for congressional voting purposes, 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, el. 3; amend. XIV, 2. As noted above, the citizens of the District are not citizens of the States, just as U.S. citizens residing in the territories (who have no constitutional right to vote in any federal [page 10] election) are not citizens of the States. [footnote 7: Congress, by legislation, has given American citizens residing in U.S. territories the right to elect a non-voting member of the House, 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, a deprivation the courts have held is only remediable through a constitutional amendment. See Attornev General of the Territory of Guam, 738 F.2d at 1018-19; Igartua De La Rosa, 32 F.3d 8.]

Plaintiffs, however, identify three groups that they say are "similarly situated" for equal protection purposes: the residents of Alexandria County, Virginia; the residents of federal enclaves; and the residents of continental territories. Plaintiffs are wrong in each instance.

Residents of Alexandria County. With respect to Alexandria County, plaintiffs seem to assert that Congress' decision more than 150 ago years to retrocede a small portion of the District to Virginia - at the request of the residents of that portion and with the consent of the State of Virginia - denies plaintiffs the equal protection of the laws today. Plaintiffs' Memorandum at 36-37. This is nonsense. It is perfectly rational for Congress to conclude today (by virtue of its failure to act) that retrocession of the District of Columbia to Maryland is inappropriate in light of; among other things, the fact that the District has not been part of Maryland for more than 200 years; the unique social, political and economic factors surrounding the 1846 retrocession; the ratification of the 23rd Amendment in 1961; Maryland's continued unwillingness to accept the District; and the well-established place of the capital city in our national life. [footnote 8: Senator Kennedy observed, in opposing the idea of retrocession 20 years ago: "The Library of Congress analysis [of the 1846 retrocession which Sen. Kennedy requested] . .. indicates that the retrocession was directly affected by the political, social and economic factors of the time.... Seen in historical perspective, the retrocession of the Virginia portion of the District in 1846 is not a precedent for action today on the issue of voting representation in Congress for the District of Columbia. . . . . Congress overwhelmingly recognized in 1961 that there was no justification for tying the District to Maryland for purposes of voting in Presidential elections. There is no justification today for tying the District to Maryland for purposes of voting in Senate and House elections, and there is no real likelihood that the State of Maryland would accept such an arrangement, even if Congress tried to attempt it." 124 Cong. Rec. 14357 (1978) (statement of Sen. Kennedy).]

[page 11]

Furthermore, plaintiffs' argument that 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 mistakes Congress' presumed authority to legislate in a manner plaintiffs desire with a constitutional obligation to act. [footnote 9: As noted above, it is not at all clear that Congress could constitutionally legislate in the manner plaintiffs desire because of the 23rd Amendment. See supra note 6.] 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).

Residents of Federal Enclaves. With respect to the federal enclaves, plaintiffs appear to argue that because Congress has the same legislative authority over the District of Columbia that [page 12] it has over the enclaves (U.S. Const. art. 1, 8, ci. 17), plaintiffs must have the same congressional voting rights as the residents of the enclaves. Plaintiffs' Memorandum at 37-47. 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." Plaintiffs' Memorandum at 32 (quoting Missouri v. Lewis, 101 U.S. at 31) (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 of the States, as plaintiffs themselves acknowledge, Complaint at 35; Plaintiffs' Opposition at 50-51, 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.

Furthermore, the premise of plaintiffs' argument - that Congress legislatively bestowed congressional voting rights on residents of federal enclaves - is incorrect. The right to vote in congressional elections is ordinarily a matter of state law as circumscribed by the requirements of the Constitution. See Evans v. Cornman, 398 U.S. 419 (1970). The Supreme Court has held explicitly that lands acquired by the United States do not cease to be part of the States from which the land is acquired, and that residents of such enclaves do not cease to be citizens of the States in which the enclaves lie. Id. at 421-22 (rejecting argument that Maryland could deny vote to residents of federal enclave in Montgomery County); Howard v. Commissioners of Louisville, [page 13] 344 U.S. 624, 626-27 (1953) (rejecting argument that City of Louisville could not tax residents of federal enclave within city limits).

On the other hand, when Maryland ceded the land that is now the District of Columbia to the United States, it "for ever ceded and relinquished [the land] to the congress and government of the United States," including "full and absolute right, and exclusive jurisdiction." Laws of Maryland, ch. XLV ([)ec. 19, 1791). As this Court has previously held, "the effect of [this] cession upon individuals [who resided on the ceded land] was to terminate their state citizenship and the jurisdiction of the state governments over them." Hobson v. Tobriner, 255 F. Supp. 295, 297 (D.D.C. 1966), cert. denied sub nom. Hobson v. Gasch, 386 U.S. 914 (1967).

Residents of Continental Territories. Finally, plaintiffs say they are like the residents of the States that were territories before they became States (approximately 200 million residents in 32 such States according to plaintiffs). Plaintiffs' Memorandum at 47, 51. As best we can tell, plaintiffs argue that because Congress once was vested with a particular authority over the residents of continental territories (similar to Congress' authority over the District under the District Clause), and because Congress later chose to make those territories States, therefore, Congress now has a constitutional obligation to legislate in the manner plaintiffs now desire. This is the same argument plaintiffs advanced with respect to Alexandria County and, for the same reasons it was flawed there, it is flawed here. See supra at 10-11.

3. Finally, plaintiffs' equal protection argument appears to be based upon the premise, for which no authority is cited, that the Equal Protection Clause trumps other potentially inconsistent constitutional provisions (in this case, art. I, 2, cI. 1). If plaintiffs were correct, any number of other constitutional provisions that draw lines and set conditions would be open to [page 14] challenge.

For example, 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 line drawn in the 26th Amendment between those citizens who are 18 years of age or older and those citizens who are under 18 is invalid. Similarly, a number of provisions in articles I and II establish qualifications for certain federal office holders. See, e.g., U.S. Const. art. I, 2, cI. 2 (U.S. Representatives must be 25 years old, an inhabitant of their State, and a U.S. citizen for seven years); art. I, 3, cl. 3 (Senators must be 30 years old, an inhabitant of their State, and a U.S. citizen for nine years); art. II, 1, cl. 5 (President must be a natural-born citizen, 35 years old, and a U.S. resident for 14 years). By plaintiffs' reasoning, these provisions deny the equal protection of the laws to citizens (and even non-citizens) who do not possess the enumerated qualifications.

The answer to all this of course is that a general right to the equal protection of the laws is not a basis for disregarding lines explicitly drawn elsewhere in the Constitution, particularly when those lines concern the fundamental structure of the federal government. See Minor v. Happersett, 88 U.S. 162, 178 (1874) (holding, in dismissing equal protection challenge by a woman to a state statute that limited voting rights to men, that Constitution did not make suffrage the absolute right of all citizens: "If the law is wrong, it ought to be changed; but the power for that is not with us."); U.S. Term Limits Inc. v. Thornton, 514 U.S. 779, 798, 817 (1995) ("the qualifications... set forth in the text of the Constitution are 'fixed'"' and can only be changed by constitutional amendment); Attorney General of the Territorv of Guam, 738 F.2d at 1018-19; Igartua de la Rosa, 32 F.3d 8.

[page 15]

For all these reasons, plaintiffs' motion for summary judgment on Count One of the Complaint must be denied.

III. Plaintiffs' Republican Form of Government Claim Lacks Merit.

Count Two of plaintiffs' Complaint asserts that defendants have violated the Guarantee Clause of the Constitution. As an initial matter, that issue is plainly non-justiciable as we have argued at length elsewhere. See House Officers' Motion to Dismiss at 3-12; Reply to Plaintiffs' Opposition to [House Officers'] Motion to Dismiss at 4-15 ov. 25, 1998). However, even if the issue were justiciable, plaintiffs' claim would still be baseless for a variety of reasons.

1. Article IV, 4 expressly applies only to the "States," as the courts have so held, [footnote 10: See, e.g., Johnson v. Genesee County, 232 F. Supp. 567, 570 (E.D. Mich. 1964) (Article IV "is a guarantee to the states, as such."). See also Downes v. Bidwell, 182 U.S. 244, 279 (1901) (Congress not required to establish republican form of government in territories before they become States); State ex rel. Porterie v. Smith, 166 So. 72, 82 (La. 1936) (Guarantee Clause does not apply to "the systems of local government for the municipalities, counties, and parishes of a state").] and the records of the Constitutional Convention so confirm. [footnote 11: The convention records reflect that the purpose of the Guarantee Clause was to ensure the stability and autonomy of the existing state governments, and to ensure that the federal government would not interfere with those state governments. See Deborah Jones Merritt The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 Colum. L. Rev. 1, 29-36 (1988). From the very first, the concept of the guarantee was limited to the States. Specifically, the Virginia Plan, which was presented to the Convention in May 1787 and contained the first mention of the guarantee, limited the guarantee to the States. See 1 The Records of the Federal Convention of 1787, at 22 (Max Farrand, ed., Yale Univ. Press 1974). (While the Virginia Plan would have had the federal government guarantee the territorial integrity, as well as the republican form of government, of the States, the Members of the Convention objected to the reference to territory and deleted it. Id. at 206.) Moreover, while there was significant debate, during both the Convention and the ratification process, about the meaning of the guarantee, at no time was any suggestion made that the guarantee would apply to anything other than the "States" as such.] The District of Columbia is not a [page 16] State. Therefore, the Guarantee Clause does not apply to it. [footnote 12: Darby v. U.S., 681 A.2d 1156, 1158 ([).C. 1996) (Art. IV, 4] applies to the states and cannot be read to restrict the power of Congress to legislate for the District.. .19). See also U.S. v. Cohen, 733 F.2d 128, 146 (D.C. Cir. 1984) (Mikva, J., concurring) (District residents are U.S. citizens, but "may not be entitled to all the protections of a 'Republican form of Government'. . . 'I).]

Plaintiffs counter 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. Plaintiffs' Memorandum at 59-62. This is incorrect.

First, "in pari materia" is a principle of statutory construction only. See, e.g., Crooker v. Bureau of Alcohol. Tobacco & Firearms, 670 F.2d 1051, 1107 (D.C. Cir. 1981). [footnote 13: 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 Maynard v. Thrasher, 48 S.E.2d 471, 473 (Ga. App. 1948)); Black's Law Dictionary 791(6th ed. 1990) ("Statutes in pari 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 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. [page 17] 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.

Third, and in any event, plaintiffs have failed to establish that other sections of article IV have been construed to apply to the District:

The Full Faith and Credit Clause. Plaintiffs cite a number of cases in which, they say, the Full Faith and Credit Clause was extended to the District of Columbia. Plaintiffs' Memorandum at 60-61. In fact, the Full Faith and Credit Clause of the Constitution was not at issue in those cases. Instead, the question in each case was whether the courts of the District of Columbia were covered by 28 U.S.C. 1738 (or a predecessor statute) which extends to "[the 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." Each case construed 28 U.S.C. 1738 (or a predecessor statute) to apply to the courts of the District of Columbia. [footnote 14: See, e.g., Mills v. Duryee, 11 U.S. 481, 485 (1813) (Act. of May 26, 1790, ch. 11); Loughran v. Loughran, 292 U.S. 216, 228 (1934) (citing Bradford Electric Light Co. v. œLpaer, 286 U.S. 145, 155 (1932), which, in turn, relied on Rev. Stat. 905); Davis v. Davis, 305 U.S. 32 (1938) (Rev. Stat. 905); Synanon Church v. U.S., 579 F. Supp. 967, 974 (D.D.C. 1984) (28 U.S.C. 1738); Fehr v. McHugh, 413 A.2d 1285, 1286-87 (D.C. App. 1980) (28 U.S.C. 687); Washington Gas Light Co. v. Hsu, 478 F. Supp. 1262, 1263 (D. Md. 1979) (same). 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.").]

The Privileges and Immunities Clause. With respect to article IV, 2, ci. 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. [page 18] Plaintiffs' Memorandum at 61. 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 Jaycees v. Superior Court, 491 F. Supp. 579, 582 (D.D.C. 1980); Jackson v. U.S. 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. Maryland, 287 A.2d 823 (D.C. App. 1972), a case in which the District extradited a fugitive to Maryland. Plaintiffs' Memorandum at 61-62. 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. [footnote 15: Plaintiffs also attempt to buttress their Guarantee Clause claim by suggesting that District citizens, who were originally Maryland residents, were unconstitutionally stripped of their rights under the Clause in 1791 when Maryland ceded the District to the United States. Plaintiffs' Memorandum at 58-59. This argument blithely ignores two cases which have held otherwise. See Reilly, 6 U.S. at 356-57; Hobson, 255 F. Supp. at 297. Moreover, and in any event, plaintiffs have cited no authority for their claim to be the "unfortunate heirs and subjects of the original and continuing violations of the Clause." Plaintiffs' Memorandum at 59.]

2. Even if the District were a "State" for purposes of the Guarantee Clause, plaintiffs' claim would still fail because art. IV, 4 only guarantees that state governments will be republican in form. It does not guarantee to the people of the states (or the District) participation in the federal government. , e.g., Forsyth v. City of Hammond, 166 U.S. 506, 519 (1897); [page 19] Bates v. Jones, 131 F.3d 843, 858-59 (9th Cir. 1997) (Rymer, J., concurring), cert. denied, 118 S. Ct. 1302 (1998) (Article IV gives citizens the right "to have themselves represented in the legislative branch of their state government by citizen-legislators.") (emphasis added).

While plaintiffs argue that the Guarantee Clause also requires that the federal government be republican in form, Plaintiffs' Memorandum at 72, 74, they provide no legal support for this argument. Certainly that is not what article IV, 4 says. Furthermore, the cases plaintiffs cite indicate only that the Framers believed that republican government was desirable - a proposition we do not dispute - not that article IV, 4 was intended to apply as against the federal government itself. Indeed, such a reading is illogical inasmuch as the Constitution itself establishes, principally in articles I-Ill, the republican form of the federal government. See U.S. Term Limits, 514 U.S. at 839 (Kennedy, J., concurring) ("[THE National Government, too, is republican in essence and in theory."); The Federalist No.39 (James Madison) (concluding, based on provisions in articles I-Ill, that national government established by Constitution was republican in form). It makes no sense to suggest that the federal government is obligated by art. IV, 4, to guarantee that which the Constitution itself has already established (and which is only subject to change through the amendment process). [footnote 16: Plaintiffs have elsewhere contended 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.11 Complaint at 90; Plaintiffs' Opposition at 67. To the extent plaintiffs continue to advance this position, the answer - in addition to the fact that the Guarantee Clause 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.). See 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. U.S., 37 U.S. 524, 619 (1838).]

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For all these reasons, plaintiffs' motion for summary judgment on Count Two of their Complaint must be denied.

CONCLUSION

For all the reasons given, plaintiffs' Motion for Summary Judgment should be denied.

Respectfully submitted,

GERALDINE R. GENNET, General Counsel

KERRY W. KIRCHER, Deputy General Counsel

CAROLYN BETZ, Assistant Counsel