|
IN THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Twenty Citizens of the District of Columbia,
Plaintiffs
versus
| Civil Action No: 98-1665 LFO
William Jefferson Clinton, et al,
Defendants
PLAINTIFFS' REPLY TO
RESPONSES OF ALL DEFENDANTS TO
PLAINTIFFS' APPLICATION FOR
THREE-JUDGE DISTRICT COURT
The Plaintiffs have applied for a three-judge district court to be
convened under 28 U.S.C. 2284(a). As of August 4, 1998, all Defendants have filed
memoranda opposing the Plaintiffs' Application. [FOOTNOTE 1: The Defendants' respective
memoranda are styled as follows: Response of Defendant District of Columbia Financial
Responsibility and Management Assistance Authority to Order to Show Cause Why Plaintiffs'
Application for a Three-Judge District Court Should Not be Granted ("Control Board's
Response"), President William Jefferson Clinton's Opposition to Plaintiffs' Motion
for the Appointment of a Three-judge Court ("Clinton's Opposition"), and House
Officers' Opposition to Plaintiffs' Application for a Three-judge District Court
("House Officers' Opposition").] This memorandum contains the Plaintiffs'
replies to various points and arguments raised in the Defendants' memoranda.
The Plaintiffs note, in passing, that Defendants Carle and Livingood in
their respective official capacities (the "House Officers") raise the issue of
standing vis- -vie the House Officers (House Officers' Opposition at 4-6). While the
issue appears to be a component of the House Officers' argument that this case is not
under the jurisdiction of a three-judge district court, the issue must be addressed
independently, because the question of standing cannot be resolved until the question
whether this case is under the jurisdiction of a three-judge district court is resolved.
See McLucas v. DeChamplain, 421 U.S. 21, 28, 95 S.Ct. 1365, 1370, 43 L.Ed.2d 699, 707
(1975); Armour v. State of Ohio, 925 F.2d 987, 989 (6th Cir. 1991) (en banc). Therefore,
the Plaintiffs file a separate memorandum on the standing issue vis- -vie the House
Officers.
THE COMMON THEME: CONGRESSIONAL "INTENT"
One theme is common to the responses of all Defendants and comprises
the backbone of their opposition to the Plaintiffs' Application for a three-judge district
court: that the legislative intent of Congress "forecloses" the Plaintiffs'
Application for a Three-judge District Court (Control Board's Response at 2-5; Clinton's
Opposition at 2-12; House Officers' Opposition at 2-3). The theme takes slightly different
forms with slightly different ramifications for each Defendant, but is sufficiently
similar in each Defendant's memorandum to facilitate a unified reply by the Plaintiffs.
The gist of the Defendants' legislative intent argument is that the
Congress intended to limit application of Section 2284(a) to challenges of specific
statutes:
. . . Congress intended under 2284(a) for three-judge courts to
hear only those cases in which there is at issue the constitutionality of state or federal
statutes that mathematically apportion the number and size of congressional districts
among or within the respective States according to population, or which fix the boundaries
of such districts within a State's borders.
(Clinton's Opposition at 2-3). On the basis of this hypothesis, Defendant Clinton argues
that,
plaintiffs' claims do not arise from any legislative decision that
mathematically apportions the size and number of congressional districts among or within
the respective States. . . . As is evident on their face, plaintiffs in this case do not
directly challenge any State or federal legislative districting plan. Plaintiffs' claims,
in other words, do not arise from any legislative decision allocating the size and number
of congressional districts among or within the respective States based on their population
numbers.
(Clinton's Opposition at 3 and 10). Similarly, the Control Board argues that,
the Plaintiffs' actual challenge is to the lack of a statute
apportioning a Congressional district to the District of Columbia, a claim clearly outside
the scope of 2284(a). . . . [T]he inquiry [whether this case is under the
jurisdiction of a three-judge district court] must be: are Plaintiffs challenging a
statute apportioning congressional districts within the meaning and purpose of
2284(a)? Because no such statute exists in the District of Columbia, the answer is no.
(Control Board's Response at 3 & 4 (emphasis by Control Board); see also id. at 2).
Following the same path, the House Officers assert the tautology that, "plaintiffs
are not challenging a statute that apportions a congressional district since the District
of Columbia at present does not have congressional representation and, therefore no such
statute exists." (House Officers' Opposition at 2 (also referring to
"legislative history")).
The immediate effect of the Defendants' theory would be that Section
2284(a) would only cover legislation passed by State legislatures and none passed by
Congress. Congress cannot legislatively "fix the boundaries of [congressional]
districts within a State's borders" or "apportion the . . . size of
congressional districts," which is part and parcel of "fixing the
boundaries," since these processes are responsibilities of the respective States.
See, e.g., McDaniel v. Sanchez, 452 U.S. 130, 101 S.Ct. 2224, 68 L.Ed.2d 724 (1981);
Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 84 S.Ct. 1429, 12
L.Ed.2d 595 (1964). Likewise, Congress cannot (nor can any state legislature) apportion
any district "among the respective States," since no congressional district can
embrace physical territory from two or more states. U.S. Dept. of Commerce v. Montana, 503
U.S. 442, 447-48, 112 S.Ct. 1415, 1419, 118 L.Ed.2d 87 (1992). See generally 3 Donald D.
Rotunda & John E. Nowak, Treatise on Constitutional Law, 144 (2d ed. Supp. 1988).
But Congress can, "mathematically apportion the number . . . of
congressional districts . . . within the respective States according to population."
Congress does not do this, however, by any periodic, specific "federal statute,"
as envisioned in Defendant Clinton's theory. Rather, Congress has passed general laws
which define the process of apportionment. Defendant Clinton acknowledges this, saying
that "the reapportionment process [is] self-executing, thereby eliminating the need
for it to enact apportionment legislation after each decennial census" (Opposition at
6 n.3; see also Opposition at 7 n.5, citing Montana, supra, which reviewed a part of the
congressional apportionment procedures). So, the only aspect of Defendant Clinton's theory
of the scope of Section 2284(a) which could involve Congress, Congress does not do.
But the Defendants' resort to legislative intent (which results in
complete immunity for Congress from Section 2284) is, from the start, questionable.
Reference to legislative history is only appropriate when Congressional intent is not
clear in the language of the statute at issue. "The starting point in statutory
interpretation is 'the language [of the statute] itself.'" United States v. James,
478 U.S. 597, 604, 106 S.Ct. 3116, 3120, 92 L.Ed.2d 483 (1986) (quoting Blue Chip Stamps
v. Manor Drug Stores, 421 U.S. 723, 756, 95 S.Ct. 1917, 1935, 44 L.Ed.2d 539 (1975)
(Powell, J., concurring)); see also Cleveland, Ohio v. Nuc. Regulatory Com'n, 68 F.3d
1361, 1366 (D.C. Cir. 1995) (quoting Chevron U.S.A., Inc. v. Natural Resources Defense
Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). There is a
"'strong presumption' that the plain language of the statute expresses congressional
intent," which presumption "is rebutted only in 'rare and exceptional
circumstances,' when a contrary legislative intent is clearly expressed" in the
legislative history. Ardestani v. I.N.S., 502 U.S. 129, 135-36, 112 S.Ct. 515, 520, 116
L.Ed.2d 496 (1991) (emphasis added; quoting Rubin v. United States, 449 U.S. 424, 430, 101
S.Ct. 698, 701, 66 L.Ed.2d 633 (1981); other citations omitted).
Thus, the starting point for analysis of whether this case is under the
jurisdiction of a three-judge district court is the plain language of the statute itself.
James, supra, 478 U.S. at 604, 106 S.Ct. at 3120. Section 2284(a) provides, as pertinent
to this case, that a three-judge district court "shall be convened" if this
action involves a "challeng[e to] the constitutionality of the apportionment of
congressional districts" (emphasis added). Section 2284(a) does not contain the words
"Act" (capitalized, or even uncapitalized, for that matter) or
"statute." The key word in the Section, for the purposes of this case and the
arguments the Defendants are making in opposition to the Plaintiffs' Application, is
"apportionment."
"Apportionment" is no vague or occult term of art. It is
widely and extensively discussed, and needs no special definitions (see Memorandum in
Support of Plaintiffs' Application at 4-6). Apportionment in well-understood to be a
process. This process may have several steps, including enactment of statutes of one sort
or another, but the process involves more than a final statute and may not require a
specific statute for each given apportionment which might be challenged. Defendant Clinton
admits as much, saying, "the reapportionment process [is] self-executing, thereby
eliminating the need for [Congress] to enact apportionment legislation after each
decennial census" (Clinton's Opposition at 6 n.3 (emphasis added)) and saying that
"the jurisdiction of three-judge courts has not been convened in those cases in which
a legislative reapportionment plan is not directly at issue" (Clinton's Opposition at
8 (underline by the Defendant; italics added)).
Indeed, the Supreme Court has evidenced no hesitation to address
apportionment as a process which does not involve specific statutes which mathematically
apportion the number and size of congressional districts. Further, the Supreme Court has
acknowledged that cases challenging aspects of the process of apportionment of
congressional districts are properly committed to the jurisdiction of three-judge district
courts.
U.S. Dept. of Commerce v. Montana, 503 U.S. 442, 112 S.Ct. 1415, 118
L.Ed.2d 87 (1992), arose from claims that an "existing apportionment method"
violated the Constitution, in part "because reapportionment is effected 'through
application of a mathematical formula by the Department of Commerce and the automatic
transmittal of the results to the states' rather than by legislation on which Members of
Congress vote in the normal manner." 503 U.S. at 446, 112 S.Ct. at 1418. Although the
claim relating to "the automatic method of apportionment" was not before the
Supreme Court (because it had not been addressed by the three-judge district court), that
claim was nevertheless acknowledged to have been under the jurisdiction of the three-judge
district court, which would have addressed it, had it not felt it could dispose of the
case under another theory. 503 U.S. at 446 n.10, 112 S.Ct. at 1418 n.10. Likewise, the
three-judge district court referred to the apportionment process, saying,
. . . the reapportionment process [is] automatic, and Congress, in its
role as law and policy maker, ha[s] no part in the process. Congress, by enacting 2 U.S.C.
2a in 1941, [nevertheless] did not relieve itself of any further obligation to
inquire into the Constitutionality of each apportionment decision. . . .
By complacently relying, for over fifty years,
on an apportionment method which does not even consider absolute population variances
between districts, Congress has ignored the goal of equal representation for equal numbers
of people.
State of Montana v. U.S. Dept. of Commerce, 775 F.Supp. 1358, 1366 (D. Mont. 1991), rev'd,
503 U.S. 442, 112 S.Ct. 1415, 118 L.Ed.2d 87 (1992) (emphasis added). Although the Supreme
Court reversed the three-judge district court's finding that Congress had violated the
Constitution, the Court proceeded under the same understanding of
"apportionment" as process:
[I]f a set formula is otherwise constitutional, it seems to us that the
use of a procedure that is administered efficiently and that avoids partisan controversy
supports the legitimacy of congressional action, rather than undermining it. To the extent
that the potentially divisive and complex issues associated with apportionment can be
narrowed by the adoption of both procedural and substantive rules that are consistently
applied year after year, the public is well served, provided, of course, that any such
rule remains open to challenge or change at any time. We see no constitutional obstacle
preventing Congress from adopting such a sensible procedure.
503 U.S. at 465, 112 S.Ct. at 1430 (emphasis added).
Franklin v. Massachusetts, 505 U.S. 788, 112 S.Ct. 2767, 120 L.Ed.2d
636 (1992), also arose from a challenge to apportionment of congressional districts and
also had been heard by a three-judge district court. In the course of reviewing the case,
the Supreme Court again discussed "apportionment" as a legislative duty of
Congress, saying that after the 1920 census, "Congress reformed the reapportionment
process to make it virtually self-executing, so that the number of Representatives per
State would be determined by the Secretary of Commerce and the President without any
action by Congress." Franklin, supra, 505 U.S. at 791-92, 112 S.Ct. at 2771 (emphasis
added). In the process of reaching its decision, the Court reviewed the various roles in
the apportionment process, precisely to identify who was responsible for the
"injury" alleged in the case, and determined that it would be the Secretary of
Commerce, if anyone. 505 U.S. at 802-03, 112 S.Ct. at 2776-77. Thus, the Supreme Court
clearly viewed congressional apportionment is a process, involving many responsible
functionaries, and not necessarily involving a specific final statute declaring the
mathematical apportionment at issue.
Montana and Franklin are not the only apportionment cases submitted to
a three-judge district court under Section 2284(a), but which did not involve a
constitutional challenge to a specific statute. Ryan v. State Bd. of Elections of State of
Ill., 661 F.2d 1130 (1981), was brought after the Illinois General Assembly adjourned,
"having failed to adopt any reapportionment plan." Id. at 1132. A single judge
district court denied the request for a three-judge district court but this denial was
reversed on appeal. Id. at 1137. Ryan was not the first case brought in the face of
legislative inaction in Illinois, either. Skolnick v. State Electoral Board of Illinois,
336 F.Supp. 839 (N.D. Ill. 1971), had been brought ten years earlier, after Illinois
failed to adopt a reapportionment plan. Skolnick was submitted to a three-judge court.
The Defendants nevertheless attempt to limit the application of Section
2284(a), referring to one phrase in the reports of the congressional committees which
examined the bills which became the Act which revised the entire three-judge court system
in 1976. Pub. L. 94-381, 90 Stat. 1119 (1976). The Control Board and Clinton both rely
upon Senate Report No. 94-204, 94th Cong., 2d Sess., 12 (1976), reprinted in 1976 U.S.
Code Cong. & Admin. News, 1988, 2000, for evidence of congressional intent (Control
Board's Response at 4; Clinton's Opposition at 4-5). The House Officers rely on House
Report No 94-1379, 94th Cong., 2d Sess. [6] [FOOTNOTE 2: Philadelphia cites page 4 of
H.Rep. 94-1379, but the text the court quotes is on page 6] (1976), quoted in City of
Philadelphia v. Klutznick, 503 F.Supp. 659, 658 (E.D. Pa. 1980), for evidence of
congressional intent (House Officers' Opposition at 2-3). All Defendants focus on one
statement (which is identically worded in both reports), to the effect that the revised
Section 2284(a) "would . . . continue the requirement for a three-judge court in
cases challenging the constitutionality of any statute apportioning congressional
districts . . . ." [FOOTNOTE 3: A third report, S. Rep. 93-206, 93d Cong., 1st Sess.
(1973), is cited in Federation for Am. Imm. Reform v. Klutznick, 486 F.Supp. 564, 577
(D.D.C. 1980). This report concerned a bill which was a predecessor of the reorganization
bill which passed in the next Congress. This report is almost identical to S. Rep. 94-204,
containing the same sentence which is the source of the Defendants' theory, verbatim. S.
Rep. 93-206 at 13]
This phrase appears only once in both reports and the same notion or
suggestion is not repeated in any way elsewhere in the reports. To the contrary, every
other reference to apportionment in the reports (i.e., "any case involving
congressional apportionment," "all cases involving apportionment," and
references to reapportionment as an "issues") does not add any further, limiting
term to the phenomenon. Further, these reports also state that Congress "amend[ed]
section 2284 . . . by stating expressly the cases requiring a three-judge court . . .
." Senate Report No. 94-204, 94th Cong., 2d Sess., 12 (1976), reprinted in 1976 U.S.
Code Cong. & Admin. News, 1988, 1999; H. rep. 94-1379, 94th Cong., 2d Sess., 6 (1976).
Thus, assuming congressional intent was to issue an "express statement," the
present language of Section 2284(a), which does not limit "apportionment" to
"statutes," must reflect congressional intent.
These same reports, moreover, discuss in detail the three-judge court
statutes which the pending legislation would repeal, including 28 U.S.C. 2281
& 2282. Sections 2281 & 2282 provided three-judge courts for cases concerning
"statutes" and "Acts." Indeed, the reports make it clear that the
major burden on the judiciary for three-judge courts arose from Sections 2281 & 2282.
S. Rep. 94-204 at 5-9, reprinted in 1976 U.S.C.C.A.N. at 1992-97; H. Rep. 94-1379 at 2-5.
Section 2284, concerning apportionment, on the other hand, "never [generated] a large
number of cases." S. Rep. 94-204 at 9, reprinted in 1976 U.S.C.C.A.N. at 1996; Since
the whole purpose of revision of the three-judge courts was to reduce the number of
three-judge courts as much as possible, it's remarkable that Congress would aggressively
repeal all general provisions which concerned "statutes" and "Acts,"
yet not simply add reference to "statute" to the final language of Section
2284(a), to codify its hypothetical intent to narrow the application of Section 2284(a) to
cases involving "statutes." The reasonable conclusion must be that Congress did
not intend to codify the spurious reference to "statutes apportioning congressional
districts."
Thus, at the very least, the legislative history does not "clearly
express" any legislative intent other than--much less an intent "contrary"
to--the intent apparent in the plain text of Section 2284(a), unlimited by specific
reference to "statutes." See Ardestani, supra, 502 U.S. at 135-36, 112 S.Ct. at
520. Since the legislative history contains no"conclusive statements" that
Congress intended to limit Section 2284(a) in the manner suggested by the Defendants, the
court should follow the "'strong presumption' that the plain language of [Section
2284(a)] expresses congressional intent" itself. Id.
Interestingly, Defendant Clinton cites Commonwealth of Massachusetts v.
Mosbacher, 785 F.Supp. 230 (D.Mass. 1992), in the course of arguing congressional intent.
Mosbacher was the opinion reversed under the name Franklin v. Massachusetts. Clinton
quotes Mosbacher, saying,
As one court has explained, three-judge courts have historically been
deemed "necessary as a means for 'the saving of state and federal statutes from
improvident doom at the hands of a single judge," * * * [and in no other] area is
that concern more critical to the legitimacy of judicial decision making than in the
politically charged context of legislative reapportionment.
(Clinton's Opposition at 5, quoting Mosbacher, 785 F.Supp. at 235, quoting MTM, Inc. v.
Baxley, 420 U.S. 799, 804, 95 S.Ct. 1278, 1281, 43 L.Ed.2d 636 (1975)). It appears
Defendant Clinton takes this to affirm the theory that Section 2284 is limited to cases
attacking statutes.
But Mosbacher, quoting MTM, does not support the proposition. MTM was
not concerned with Section 2284, but with 28 U.S.C. 2281. Section 2281 provided
three-judge district courts--specifically (i.e., in the text of the section, not in the
uncodified "intent" of Congress)--to hear cases challenging the
constitutionality of "statutes." Therefore, it was necessary for MTM to have a
concern for "saving statutes from improvident doom," because statutes were
exactly what was at issue in MTM and statutes were, textually, under the Damoclean sword
under Section 2281.
Further, Mosbacher does not indicate that the court felt MTM's
reference to "statutes" in the course of discussing a case under Section 2281
was, therefore, a necessary ingredient to analysis of the merits of the case under Section
2284, such as was before the court in Mosbacher. Quite to the contrary, Mosbacher quoted
MTM to focus on the unique importance of three-judge courts and to sustain the proposition
that such courts are a "necessary burden" on the federal judiciary. 785 F.Supp.
at 235-36. The passage quoted by Defendant Clinton in Mosbacher is only a way-station on a
course of reasoning by the district court, "satis[fying itself] that the plaintiffs'
apportionment claim [was] a matter which Congress, through 2284(a), has directed
must be determined by a three-judge district court." 785 F.Supp. 236. And no
"statute" or "act" "mathematically apportion[ing] the number and
size of congressional districts[,]" (Clinton's Opposition at 2-3) was at issue in
Mosabcher. Rather, as the court stated, it was addressing claims challenging aspects of
"the congressional reapportionment process." 785 F.Supp. 234.
Although the Supreme Court reversed Mosbacher in Franklin, the Supreme
Court didn't controvert a single word of the lower court's analysis whether the case was
appropriate for review under Section 2284(a). Further, the Court didn't evidence the
slightest concern that it might have lacked jurisdiction on direct appeal from the
district (which would have been true had the Defendants' theory prevailed), because
Franklin did not involve any "statute mathematically apportion[ing] the number and
size of congressional districts" (Clinton's Opposition at 2). In short, rather than
supporting the Defendants' construction of Section 2284(a), Defendant Clinton's citation
of Mosbacher actually supports the Plaintiffs' Application for a three-judge district
court, in that it affirms that crucial stages in the apportionment process can be
challenged. [FOOTNOTE 4: In light of the Plaintiffs' analysis of the issue and in light of
the Supreme Court's opinions in Montana and Franklin, the conclusions in City of
Philadelphia v. Klutznick, 503 F.Supp. 657, 658 (E.D. Pa. 1980) and Federation for Am.
Imm. Reform [FAIR] v. Klutznick, 486 F.Supp. 564 (D.D.C. 1980), which appear to support
the theory propounded by the Defendants here, do not seem dispositive. It should also be
noted that neither of these cases concerned claims or issues even close to those presented
in this case.
It might also be noted that the Department of Justice ("DOJ"), which represents
Defendant Clinton in this case, also represented the federal defendants (including the
then-President and Secretary of Commerce, among others) in Mosbacher, Franklin, and in
both stages of Montana. To a degree, the argument made here is a variant of the arguments
DOJ made in Mosbacher. This is interesting because, by the time the opinion reported as
Mosbacher was entered, the Solicitor General had already conceded the propriety of the
three-judge district court in Montana, so the DOJ "abandoned [its] motion to dissolve
th[e Mosbacher] three-judge court as to the apportionment claim." 785 F.Supp. at 235
(citing Jurisdictional Statement, United States Dept. of Commerce v. Montana, U.S. No.
91-860, at 25-28; emphasis added)]
Thus, the Defendants' position--that the only cases properly submitted
to three-judge district courts should be cases involving constitutional challenges to
legislation--is untenable. Defendant Clinton seems to concede as much, saying, "[i]n
some cases, the courts are called upon to devise a congressional apportionment plan owing
to a State's failure to enact appropriate legislation following a decennial census"
(Clinton's Opposition at 8 n.7 (emphasis added)). The statement is followed by citation of
Shayer v. Kirkpatrick, 541 F.Supp. 922 (W.D. Mo.), aff'd sub nom Schatzle v. Kirkpatrick,
456 U.S. 966, 102 S.Ct. 2228, 72 L.Ed.2d 841 (1982). Shayer was brought after the Missouri
General Assembly adjourned "without passing a congressional redistricting bill."
541 F.Supp. at 924. The three-judge court observed that, "[t]he General Assembly's
failure to provide a means of congressional representation would, if unremedied, result in
an unconstitutional deprivation of the Article I, 2, 1 right of the people to
select representatives." 541 F.Supp. 925. Thus, again, a three-judge court took
jurisdiction in the absence of a statute "mathematically apportioning the number and
size of congressional districts."
Before closing this discussion, however, the Plaintiffs would point out
that certain legislation is at issue in this case. In fact, a whole series of statutes are
at issue in this case, including: 2 Stat. 103, ch. 15 (1801), reprinted in 1 D.C. Code
45-48 and 2 Stat. 15, ch. 24 (1801) (which have been taken as the acts which
disenfranchised the citizens of the District of Columbia, see Reily v. Lamar, 6 U.S. (2
Cranch) 344, 356-57. 2 L.Ed. 300, 304 (1805)); 9 Stat. 35, ch. 35 (1846), reprinted in 1
D.C. Code 78-79 (which retroceded the former portion of the District of Columbia
south-west of the Potomac River to Virginia); and 4 U.S.C. 104-06 (1952), 45
Stat. 54 (1928), 16 U.S.C. 457 (1952), 49 Stat. 1938 (1936), 20 U.S.C.
236-244, 631-645, 40 U.S.C. 290 (1952) (which, along with other provisions, provided
the foundation for reincorporation of the federal enclaves into the political fabric of
the States, see Evans v. Cornman, 398 U.S. 419, 421-22, 424-25, 90 S.Ct. 1752, 1754, 1756,
29 L.Ed.2d 370 (1970)).
With the first two statutes, Congress stripped political and civil
rights from the citizens of the District of Columbia, fencing them out of the franchise
and depriving them of republican forms of government. Although neither of these acts
contains the word "apportionment" and none performs any mathematical function
related to representation in Congress, the effect of these acts was to say, "the
citizens of the District of Columbia get zero representation in Congress." [FOOTNOTE
5: It avails us little, however, and wouldn't be a wise use of judicial time or resources
to dwell long on these statutes, at this late date. Rather, the problem addressed in this
case is more contemporary: Congress' present-day failure to remedy the situation]
With the latter acts, Congress gave citizenship back to the citizens of
the former portion of the District of Columbia south-west of the Potomac River and to the
citizens of the federal enclaves, who had not been deemed to be citizens of any States for
the purposes of apportionment of representation in Congress, or for any other purposes.
Although these Acts said nothing about "apportionment" in so many words, the
cumulative effect of these acts was to say, "the citizens of the former portion of
the District of Columbia south-west of the Potomac River and of the federal enclaves will,
henceforth, be included in general apportionment of representation in Congress, in the
same basis as and along with all other citizens of the United States."
Cumulatively, these statutes draw a clear, hard line. On one side of
that line are all the citizens of the United States of America who reside in the District
of Columbia; on the other side of the line are all the other citizens of the United States
of America who reside elsewhere. To the latter group, Congress has apportioned 435
Representatives (and they also get Senators and other benefits at issue in this case). To
the former group, however, the group to which these twenty Plaintiffs belong, Congress has
apportioned zero Representatives and Congress has failed to include the members of the
former group in any existing apportionment.
Although this distinction is drawn in a complex pattern of statutes,
the complexity of the statutory foundation is no reason for the Court to turn its back on
these Plaintiffs. The dichotomy between the categories drawn by Congress is simple and
stark, despite the complexity of the process by which the very simple line distinguishing
the sides of the dichotomy has been drawn.
This discriminatory distinction effects apportionment at the very first
step Congress takes in the apportionment process. Article I, 2, cl. 3 of the
Constitution provided that Representatives "shall be apportioned among the several
States . . . according to their respective Numbers." Section 2 of the Fourteenth
Amendment qualifies that this shall be by "counting the whole number of persons in
each State." Through the legislation referred to above, Congress insured that all the
citizens of the former portion of the District of Columbia south-west of the Potomac River
and all the citizens of the federal enclaves are "persons in" the States, yet
Congress has held the citizens of the District of Columbia in political peonage, under
power identical to that which governed the former portion of the District of Columbia
south-west of the Potomac River and the federal enclaves. Thus, the citizens of the
District of Columbia are excluded, entirely, from the apportionment demanded in Article I,
2, cl. 3 of the Constitution, and they are neglected in every subsequent stage of
the apportionment process defined by Congress.
In short, this case very much involves apportionment, more directly and
more plainly than any apportionment case of which counsel is aware or to which the
Defendants have referred the court.
THE CONTROL BOARD'S ARGUMENTS
Turning from the general theme which animates the opposition of all
Defendants' to the Plaintiffs' Application for a three-judge district court, specific
allegations or arguments in each response merit some degree of response. One such matter
is presented by the Control Board. On page 3 of its Response, the Control Board asserts
that the Plaintiffs:
seem to realize that the text of 2284(a) does not support their
interpretation of the statute[, since they] have attempted to broaden the statute by
stating that: "... the question is whether the instant case, in any way, concerns the
apportionment of congressional districts." In fact, none of the underlined words is
in the statute.
(emphasis added by Control Board; citation omitted).
The Plaintiffs made the statement quoted by the Control Board in the
course of further argument, and it's true that the words underlined by the Control Board
are not in 28 U.S.C. 2284(a), but the phrase is not an "attempt to broaden the
statute." The phrase which the Control Board quotes merely summarizes the effect of
judicial construction of the statute, as pertinent to the issues in this case. The
jurisdiction of a three-judge district court "extends to every question involved,
whether of state or federal law[.]" Sterling v. Constantin, 287 U.S. 378, 393-94, 53
S.Ct. 190, 193, 77 L.Ed. 375 (1932); see also U.S. v. Georgia Public Service Comm'n, 371
U.S. 285, 287-88, 83 S.Ct. 397, 399, 9 L.Ed.2d 317 (1963); Sullivan v. Crowell, 444
F.Supp. 606, 612-13 (W.D. Tenn. 1978). Thus, issues which are part of a case properly
before a three-judge district court, which issues would not--on their own--be under the
jurisdiction of such a court, may be decided by the three-judge district court.
So, to follow the syllogism to what the Plaintiffs take to be its
obvious conclusion: in a case which presents a number of issues, and when it is believed
that at least one issue is under the jurisdiction of a three-judge district court but
others, on their own, might not be under the jurisdiction of such a court, the initial
judge assigned must assess whether at least one issue is under the jurisdiction of a
three-judge court because, if so, the court then "shall," Section 2284(a),
submit the entire case to a three-judge court (and all the other issues go along for the
ride, to be decided by the three-judge district court). The Plaintiffs' phrase, quoted by
the Control Board, says this. CLINTON'S ARGUMENTS
On page 3 of Defendant Clinton's Opposition, the Defendant recites
that,
since its constitutional conception in 1791, the District of Columbia
has never been recognized as a sovereign 'State' under Article I, 2 of the
Constitution for purposes of apportioning Representatives among the 'several States,' and
congressional 'apportionment' decisions as contemplated by Congress under 2284(a)
are not an issue in regard to the District."
This observation is repeated in almost the same words on page 11 of the Defendant's
Opposition. The Defendant's statement that the District of Columbia "is not a
State" is a truism and is a component in the Plaintiffs' arguments that their
constitutional rights are violated. Further, the conclusion the Defendant draws from the
observation begs the questions presented in this case.
The exact same observation, in just so many words, was said of the
former portion of the District of Columbia south-west of the Potomac River prior to 1846.
It was not "recognized as [being a part of] a sovereign 'State'" from 1801 until
after 1846.
The exact same observation, in just so many words, was said of the
federal enclaves. Prior to 1953, they had not been "recognized as [being parts of
any] sovereign 'State[s].'" It was only with the Supreme Court's opinion in Howard v.
Comm'rs of Sinking Fund, 344 U.S. 624, 73 S.Ct. 465, 97 L.Ed. 617 (1953), that they were
declared to be parts of States. And it was another seventeen years before it was settled
that "congressional 'apportionment' decisions as contemplated by Congress under
2284(a) [were] an issue" (as Defendant Clinton might put it) for the federal
enclaves. Evans, supra, 398 U.S. 419, 90 S.Ct. 1752. And it must be stressed that the
Supreme Court's opinions in both Howard and Evans were based on a line of specific acts of
Congress, taken in response to the requests and demands of the citizens of the federal
enclaves (and of the federal administrators of the enclaves), to hand power to the States,
as a way of reintegrating the enclaves into the States, in no small part to obtain
political rights.
So the question being begged by Defendant Clinton's reiteration of the
historic exclusion of the District of Columbia from the political life of the country is
this: can Congress show a compelling governmental interest in discriminating invidiously
against the citizens of the District of Columbia, as compared to the citizens of the
former portion of the District of Columbia south-west of the Potomac River and as compared
to the citizens of the federal enclaves, over which areas Congress has had and exercised
powers identical to those held and exercised over the District of Columbia?
On page 10 of the Opposition, Defendant Clinton quotes Federation for
Am. Imm. Reform [FAIR], supra, 486 F.Supp. at 577, saying, "[t]he court concluded
that . . . Congress did not intend 2284(a) 'to cover cases such as this which do not
directly affect state reapportionment.'" FAIR was a challenge to certain census
practices. As the court noted, "[s]omewhat similar challenges in the past to census
practices potentially affecting allocations of House members to states have been decided
by single judge courts." 486 F.Supp. at 577-78 (citations omitted). With Wisconsin v.
City of New York, ___ U.S. ___, 116 U.S. 1091, ___ L.Ed.2d ___ (1996), Montana, supra, 503
U.S. 442, 112 S.Ct. 1415, and Franklin, supra, 505 U.S. 788, 112 S.Ct. 2767, moreover, it
would seem to be settled that the census is not a decisive step in the apportionment
process, so is outside the scope of Section 2284(a).
But the instant case is not a challenge to the census practices.
Insofar as concerns the issues in this case, the census procedures are fine. The
population of the District of Columbia is counted, undercounted, or overcounted in exactly
the same fashion and probably to exactly the same degree as are the populations of all the
States and regions of the United States (in this one respect, they are treated or
mistreated in common with everyone else). Thus, FAIR is inapposite to the extent it dealt
with a vastly different class of challenges than are at issue in this case and FAIR cannot
be taken as a global statement of the scope of Section 2284, at least going beyond the
necessary parameters of the merits of the case before the court in FAIR.
On page 11 of the Opposition, Defendant Clinton states that,
[the] plaintiffs [cannot] contend that this case properly comes within
2284(a) on the theory that, if they could possible succeed on the merits of their
claims, Congress would subsequently be required to reapportion the 435 Representatives
among the States in order to include the District of Columbia. This theory has been
rejected in the census cases in which the courts held that 2284(a) does not 'cover
cases such as this which do not directly affect state reapportionment
(Clinton's Opposition at 11, quoting FAIR, supra, 486 F.Supp. at 577 (Defendant's emphasis
removed)). Plaintiffs cannot make heads or tails of what the Defendant means by this, even
assuming that the "theory" attributed to the Plaintiffs is reasonably stated.
The Defendant presents no argument or analysis to demonstrate why the "theory"
attributed to the Plaintiffs "has been rejected in the census cases," nor is
there any argument or analysis why this cases might present any less direct demand to
"affect reapportionment" than was presented in any case ever brought under
Section 2284(a).
To the contrary, in every case in which a court has agreed with a
plaintiff that a given apportionment violated the constitutional rights of the plaintiff,
the court has declared this finding and, in many cases, has entered injunctions barring
further enforcement of the constitutionally invalid apportionment. Counsel has encountered
at least one case in which a court dictated what the new apportionment should be, Shayer,
supra, 541 F.Supp. at 927, although dicta in some cases indicates the outer parameters of
what would be a constitutionally viable apportionment. But these Plaintiffs are not asking
this court to dictate the exact nature of any future apportionment, so it is unclear what
the Defendant could intend by this argument.
Beyond these very general observations, the burden would seem to be on
Defendant Clinton, at this point, to explain why declaratory judgement and injunctions
against these Defendants would have any less "affect" on apportionment than have
the remedies in any other cases.
DEFENDANT HOUSE OFFICERS' ARGUMENTS
While not exactly an argument on the merits of whether this case is
under the jurisdiction of Section 2284(a), the Defendants attribute to this case demands
for relief which are not stated in the Complaint. Specifically, on page 2 of their
Opposition, the Defendant House Officers state that the "Plaintiffs seek in this
action . . . to force Congress . . . to pass, and the President to sign, legislation . . .
." Likewise, on page 3 of their Opposition, the Defendant House Offices state that
the Plaintiffs seek as relief "extraordinary forms of injunctive relief . . . in
order to force Congress to pass, and the President to sign, certain legislation that
plaintiffs desire." These hysterical attributions have no foundation in the Complaint
and are simply litigation ploys, apparently to scare the court into withdrawing as quickly
as possible from such horrible prospects.
To the contrary, as demonstrated in the Memorandum supporting the
Plaintiffs' Application for a Three-judge District Court and in the Plaintiffs' memoranda
on the issue of "Standing" (major memorandum filed on August 4 and supplemental
memorandum filed on August 14), the injuries suffered by these twenty Plaintiffs can be
remedied by the declarations (and injunctions, if required) demanded in the Complaint,
without occasioning any of the phantom terrors which the House Offices manufacture. In
fact, the fundamental relief the Plaintiffs demand are declaratory judgments. Such
declaratory judgments are not unusual and the wording of the Plaintiffs' suggested
declarations is not out of keeping with the usual bill of fare for cases such as this one.
At the same time, the Complaint contains no demand whatsoever for any legislation and the
Plaintiffs contemplate no such demand in the future.
Therefore, there is no "separation of powers" issue (as
alleged in the House Officers' Opposition at 8) in this case. The court can certainly
enter the declaratory judgements demanded and, if the Defendants refuse to take further
action, the injunctions demanded by the Plaintiffs, or any other relief the court in its
discretion deems appropriate. See Dann v. Studebaker-Packard Corp., 288 F.2d 201, 216 (6th
Cir. 1961), quoted in Adams v. Bell, 711 F.2d 161, 203 (D.C. Cir. 1983), cert. denied, 465
U.S. 1021, 104 S.Ct. 1272, 79 L.Ed.2d 678 (1984) (other citations omitted); Fed. R. Civ.
P. 54(c).
On pages 4-5 of their Opposition, the Defendants House Officers assert
that the Plaintiffs' injuries cannot be traced to the actions of the Defendants House
Officers. This argument raises the question of standing, which the Plaintiffs address in a
separate Memorandum.
Finally, on pages 6-7 of their Opposition, the Defendants House
Officers assert that the Plaintiffs' constitutional claims are "foreclosed" or
"without merit." Starting with Court Two of the Complaint, the Defendants state
that the claim "has already been considered and rejected by this Court in Hobson v.
Tobriner," which held that,
Plaintiffs contend that [certain] sections of the District of Columbia
Code are unconstitutional in that they fail to provide for a republican form of government
as provided for in Article IV, Section 4, of the Constitution. It is clear that questions
arising under this provision of the Constitution "are political, not judicial, in
character, and thus are for the consideration of the Congress and not the courts." In
view of the Supreme Court's position on questions relating to whether or not a republican
form of government has been accorded, the Court is of the opinion that a three-judge court
should not be convened to examine this issue.
255 F.Supp. 295, 299 (D.D.C. 1966) (quoting Ohio ex rel Bryant v. Akron Metropolitan Park
Dist., 281 U.S. 74, 78, 80, 50 S.Ct. 228, 230, 74 L.Ed. 710 (1930)). The Guaranty Clause,
U.S. Const. Art. IV, 4, addressed in this passage, is the foundation of Count Two of
the Plaintiffs' Complaint, but Hobson is very poor authority on this count.
The passage quoted above is the entirety of Hobson's discussion of the
Guaranty Clause. The only authority for Hobson's conclusion is Bryant, and Hobson provides
no independent analysis or discussion of the reasons that Guaranty Clause claims are not
justiciable. If we go back to Bryant, we find one sentence: "[a]s to the guaranty to
every state of a republican form of government (. . .), it is well settled that the
questions arising under it are political, not judicial, in character, and thus are for the
consideration of the Congress and not the courts." 281 U.S. at 79-80, 50 S.Ct. at 230
(citing four cases, which say nothing more). [FOOTNOTE 6: Hobson cites pages 78 and 80 of
the U.S. reporter for Bryant. There is no reference to the Guaranty Clause on page 78 and
the reference quoted crosses from pages 79 to 80] Thus, the entire basis for Hobson's
ruling on the Guaranty Clause was the political question doctrine, based on one sentence
from a case now almost seventy years old.
It is remarkable that Hobson so cavalierly dispensed with a claim on
this particular basis, however, since Hobson was decided a good four years after Baker v.
Carr, 369 U.S. 186, 82 S.Ct. 691, 71 L.Ed. 663 (1962), where the Supreme Court
reconsidered the courts' traditional aversion to cases raising "political
questions." In Baker, the Court initiated a new trajectory with the observation that
"the mere fact that the suit seeks protection of a political right does not mean it
presents a political question." 369 U.S. at 209, 82 S.Ct. at 706. The Court then set
out a detailed test whether a question is a "political question" or is
justiciable. 369 U.S. at 217, 82 S.Ct. at 710. Despite the notoriety of Baker, see Baker
v. Carr, 247 F.Supp. 629, 631 (M.D. Tenn. 1965) ("[I]t is perhaps not fanciful to
suggest that the impact of the Supreme Court's decision [in Baker v. Carr] will be felt
for may years to come."). Hobson ignored Baker completely, so there is a significant
question whether Hobson might have gone another direction, had the court applied what was
already then the reigning law of political questions. And since Baker, the "political
question" doctrine has been narrowed even more, see Lawrence H. Tribe, American
Constitutional Law, 3-13 (2d ed. 1988), and there is reason to think that, if the
merits before the court in Hobson were presented again today, that the result would be
quite different, because of the narrower scope of the doctrine.
These observations takes on a certain poignancy when it is observed
that Hobson was brought by pro se plaintiffs [FOOTNOTE 7: Julius Hobson, the lead
plaintiff, was a well-known civil rights activist in the District of Columbia and the
other plaintiffs were also well-known civil rights activists. None of them were
experienced attorneys] and the opinion in Hobson was entered prior to the appearance of
any defendants. 255 F.Supp. at 296. In other words, the court, on its own initiative,
denied the Application for a three-judge district court and dismissed the Complaint, all
before any defendant even had a chance to appear, all against five individuals who were
largely unprepared to respond to the eager court's action.
These observations should be weighed by reference to the reasons why
three-judge district courts were retained by Congress in the 1976 reforms, especially for
apportionment cases. "As the court in Mosbacher explained: 'The provisions for
district courts sitting as a panel of three judges . . . are useful in diminishing any
perception that parochialism or partisanship will dominate decisions about the
constitutionality of reapportionment.'" (Clinton's Opposition at 5 n.1, quoting
Mosbacher, supra, 785 F.Supp. at 235). Also, "legislative apportionment decisions . .
. are often politically charged, and the burden of a three-judge court was considered
necessary due to the importance of the constitutional issues that arise from such
decisions and in order to help diminish any perception that parochialism or partisanship
played a role in the judicial resolution of these issues." (Clinton's Opposition at
2-3). When plaintiffs are members of an historically disfavored, historically discounted,
and historically trivialized class of citizens, when they challenge long-tolerated
practices, their challenge will certainly strike those whose job it is to enforce the
status quo as, for instance, "frivolous and patently insubstantial" (House
Officers' Opposition at 7), leading to precipitous judgements based on sweeping, absolute
statements the courts are usually quite reluctant to profess.
In conclusion, the authority of Hobson v. Tobriner was questionable on
the day the opinion was entered, see Baker, supra, and it has been seriously undermined
since, by a long line of Supreme Court cases, see Tribe, supra.. When the identity of the
plaintiffs in Hobson is added to the fact that the court issued its opinion with such
haste against such pro se plaintiffs and these are added to the reasons Congress kept
three-judge district courts in 1976, there is every reason to think that there is plenty
of room for the Plaintiffs in this case to demonstrate that they do have a meritorious
cause of action under the Guaranty Clause.
But, for the purposes of Section 2284(a), it is only required that at
least one issue be under the jurisdiction of a three-judge district court, Sterling,
supra, 287 U.S. at 393-94, 53 S.Ct. at 193; Sullivan, supra, 444 F.Supp. at 612-13, and
the Plaintiffs equal protection claim is a textbook example, see K. Karst, "Equal
Protection of the Laws" in 2 Leonard W. Levy, Kenneth L. Karst, & Dennis J.
Mahoney, eds., Encyclopedia of the American Constitution, 640-47 (1986), of such a claim
(two discrete, easily identifiable, clearly distinguishable populations subject to the
same power of the same legislature, yet treated in radically different manner, burdening
the most fundamental rights of one group and respecting those of the other, for no reason
whatsoever, much less any compelling reason). Against this claim the House Officers assert
that,
[the entire] function of the equal protection guarantee is to permit
the courts to measure the validity of classifications actually drawn by legislatures. We
are aware of no precedent that permits a party to whom a state or federal law does not
apply to challenge, on equal protection grounds, the absence of similar legislation that
would apply to that party.
(House Officers' Opposition at 7). [FOOTNOTE 8: The Defendants support this proposition by
citing Parham v. Hughes, 441 U.S. 347, 358, 99 S.Ct. 1742, 1749, 60 L.Ed.2d 269 (1979), in
which case it would appear the Defendants rely on a passage providing that "[t]he
function of [the Equal Protection Clause] is to measure the validity of classifications
created by state laws."]
At this late day, the equal protection provisions of the Constitution
cannot be reduced to such a narrow statement as that proffered by the House Officers. See
generally Lawrence H. Tribe, American Constitutional Law, 1436-1672 (2d ed. 1988) (and
cases discussed therein). And in response to the proposition that there is "no
precedent that permits a party to whom a ... federal law does not apply to challenge, on
equal protection grounds, the absence of similar legislation," the Plaintiffs might
suggest starting with a review of Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5
L.Ed.2d 110 (1960). Gomillion concerned a challenge to an act by which the town of
Tuskegee, Alabama had redrawn the town boundaries in such a way as to "remove from
the city all save four or five" black people who had previously been included in the
town limits, "fencing [them] out of town so as to deprive them of their pre-existing
municipal vote." 364 U.S. at 341, 81 S.Ct. 127. The plaintiffs in Gomillion asserted
that this act (which did not "apply to them") violated their rights to equal
protection of the laws, among other claims, and the court agreed that they had stated such
a cause of action. Id. and 364 U.S. at 349, 81 S.Ct. at 131-32; see also Holt Civic Club
v. City of Tuskaloosa, 439 U.S. 60, 99 S.Ct. 383, 58 L.Ed.2d 292 (1978); Dunn v.
Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Evans, supra, 398 U.S. 419,
90 S.Ct. 1752; Kramer v. Union Free School District No. 15, 395 U.S. 621, 89 S.Ct. 1886,
23 L.Ed.2d 583 (1969); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675
(1965).
In short, the twenty Plaintiffs in this case have certainly alleged
colorable, meritorious claims, at least as prima facie matters, for the purposes of
reference to a three-judge district court under the guidelines of Police Officers' Guild,
Nat'l. Union of Police Officers v. Washington, 369 F.Supp. 543, 548-49 (D.D.C. 1973).
ONE FINAL POINT OF AGREEMENT
There is one issue on which the Plaintiffs agree with Defendant
Clinton. The Defendant states that "this lawsuit is sui generis" (Clinton's
Opposition at 3). Defendant Clinton proffers this observation as a reason that is
"does not come within the narrow class of cases for which a three-judge court must be
convened under 2284(a)." The Defendant offers no authority for the proposition
that the novelty of a suit removes it from Section 2284(a), which would be a strange
doctrine, since every case must be at least a little novel, or the rule of stare decisis
would have closed the courts and lawsuits would be unknown. But while the Plaintiffs
certainly disagree with Defendant Clinton's conclusion, they agree with the observation
that this case is unique. This noted, however, the legal principles on which the
Plaintiffs' claims are based are not in the least unique and the court will not need to
tailor any custom doctrines to fit this case.
Respectfully submitted,
George S. LaRoche,
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