Dyer v. Blair

• Decision Date: 20 February 1975
• Docket Number: 74 C 2822.,No. 73 C 1183,73 C 1183
• Citation: 390 F. Supp. 1291
• Parties: Goudyloch E. DYER et al., Plaintiffs, v. W. Robert BLAIR, Speaker of the Illinois House of Representatives, Defendant. Dawn Clark NETSCH et al., Plaintiffs, v. William C. HARRIS, President of the Illinois Senate, and W. Robert Blair, Speaker of the Illinois House of Representatives, Defendants.
• Court: U.S. District Court — Northern District of Illinois

390 F. Supp. 1291

Goudyloch E. DYER et al., Plaintiffs, v. W. Robert BLAIR, Speaker of the Illinois House of Representatives,^* Defendant.

Dawn Clark NETSCH et al., Plaintiffs, v. William C. HARRIS, President of the Illinois Senate, and W. Robert Blair, Speaker of the Illinois House of Representatives,^* Defendants.

Nos. 73 C 1183, 74 C 2822.

United States District Court, N. D. Illinois, E. D.

February 20, 1975.

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Roger Pascal, Martha M. Jenkins, Joseph R. Lundy, Chicago, Ill., for plaintiffs.

William J. Scott, Atty. Gen. of Illinois, Chicago, Ill., for defendants.

Schlafly, Godfrey & Fitzgerald, Alton, Ill., for amici curiae.

Before STEVENS, Circuit Judge, HOFFMAN, Senior District Judge, and PARSONS, District Judge.

MEMORANDUM AND ORDER

STEVENS, Circuit Judge.

The question presented in each of these cases is whether action taken during the 78th General Assembly of the Illinois legislature constituted "ratification" of the proposed Equal Rights Amendment to the United States Constitution within the meaning of article V of that instrument.¹ That amendment received a favorable vote of more than a majority but less than three-fifths of the members of each house of the Illinois legislature. The question arises because the precise meaning of the term "ratified" has not yet been given a federal definition, but the Illinois State Constitution, as well as a rule adopted by the Illinois House of Representatives and a ruling of the President of the Illinois Senate in the 78th General Assembly, have prescribed a three-fifths majority requirement for amendment to the federal Constitution.

We first more fully describe the manner in which the issue arose and identify the specific motions which are before us; we next explain why we believe the question is justiciable, notwithstanding defendants' argument that it is a "political question"; we then explain our understanding of the term "ratified" as used in article V; and finally we decide whether Illinois ratified the proposed Equal Rights Amendment during the 78th General Assembly.

I.

On March 22, 1972, Congress approved the proposed 27th Amendment to the Constitution and submitted it for ratification to the legislatures of the states:

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress:

"ARTICLE —

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

"Sec. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

"Sec. 3. This amendment shall take effect two years after the date of ratification."

H.J.Res. 208, 86 Stat. 1523 (1972).

Article XIV, § 4 of the Illinois Constitution of 1970 provided, for the first time,² explicit procedures for the Illinois General Assembly to approve amendments to the United States Constitution:

§ 4. Amendments to the Constitution of the United States

The affirmative vote of three-fifths of the members elected to each house of the General Assembly shall be required to request Congress to call a Federal Constitutional Convention, to ratify a proposed amendment to the Constitution of the United States, or to call a State Convention to ratify a proposed amendment to the Constitution of the United States. The General Assembly shall not take action on any proposed amendment to the Constitution of the United States submitted for ratification by legislatures unless a majority of the members of the General Assembly shall have been elected after the proposed amendment has been submitted for ratification. The requirements of this Section shall govern to the extent that they are not inconsistent with requirements established by the United States.

No action was taken on the ratification of E.R.A. by the Illinois House of Representatives during the 77th General Assembly, which expired on January 9, 1973. As Representative Juckett explained, this was in keeping with the "waiting period" provision of article XIV, § 4.³ On May 24, 1972, however, the Senate of the 77th General Assembly did vote on Senate Joint Resolution 62, the E.R.A. The resolution received 30 affirmative votes with 21 members opposed and one voting "present," a constitutional majority⁴ of the 59 Senate members but six votes short of three-fifths. The Journal of the Senate reports that, on this vote, "The motion prevailed and the resolution was adopted. Ordered that the Secretary inform the House of Representatives thereof and ask their concurrence therein." Journal of the Illinois Senate 6227 (1972).⁵

At the outset of the 78th General Assembly, on February 1, 1973, the Illinois House of Representatives adopted rules to govern the ratification of constitutional amendments. Rule 42 provided:

42. Resolutions Concerning Proposed Constitutional Amendments.

(a) Resolutions proposing any changes in the Constitutions of the State of Illinois or the United States shall be so designated and numbered consecutively.

(b) Such resolutions shall be read once in full and assigned to committee in the manner provided in Rule 31.

(c) Such resolutions shall be read in full a second and third time on different days and reproduced and placed on the members' desks before the vote is taken on final passage.

(d) No such resolution shall pass except upon an affirmative vote of 107 members.

(e) The provisions of this rule may be suspended only upon an affirmative vote of 107 members.

An attempt on that date by Representative Catania, one of the plaintiffs herein, to amend Rule 42 to require only 89 votes, a constitutional majority, for the ratification of amendments to the federal Constitution was withdrawn and referred to the House Rules Committee.⁶

Subsequently, on April 4, 1973, House Resolution 176, which would have amended Rule 42 in that respect, was reported favorably by the Rules Committee, but was defeated by the full House 69-90.⁷ Debate over this Resolution centered on an opinion that Illinois Attorney General William Scott had given then Speaker of the House W. Robert Blair on May 11, 1972, that article XIV, § 4 of the Illinois Constitution, insofar as it required both a three-fifths vote and a waiting period, was in conflict with articles V and VI of the federal Constitution and, consequently, of no effect.⁸ Proponents of the amendment to Rule 42 relied heavily on this opinion.⁹ Opponents felt that the plain language of the Illinois Constitution must govern until such time as a court determined that such a conflict with the federal Constitution existed.¹⁰

Thus, on April 4, 1973, Speaker W. Robert Blair ruled that a three-fifths vote would be necessary to pass the resolution ratifying E.R.A. When that vote was taken that day, House Joint Resolution 14 received 95 votes, with 72 members voting "no" and 2 "present." Consequently, E.R.A. received more than the 89 votes necessary for a constitutional majority but fewer than the 107 votes needed to reach the three-fifths requirement. Blair ruled that the resolution had failed to pass.¹¹

On May 8, 1973, four members of the House of Representatives filed the Complaint in case No. 73 C 1183 alleging, in Count I, that article XIV, § 4 of the Illinois Constitution was void and of no effect under articles V and VI of the federal Constitution. Plaintiffs sought the convening of a three-judge court, a declaratory judgment that the Illinois Constitution's three-fifths vote requirement was null and void and of no legal effect, and an injunction enjoining Blair from applying or enforcing article XIV, § 4. In Count II, plaintiffs alleged that the 107-vote requirement contained in House Rule 42(d) was derived from article XIV, § 4, and that that requirement was similarly void and unenforceable as in contravention of article V of the federal Constitution. As in Count I, the convening of a three-judge court, a declaratory judgment and a prohibitory injunction against Blair were sought. In addition, however, plaintiffs sought a mandatory injunction directing Blair to sign, authenticate and certify the passage of House Joint Resolution 14, the E.R.A.

Defendant Blair, represented by Attorney General Scott, moved to dismiss the complaint alleging, inter alia, that plaintiffs lacked standing to bring the action,¹² that the court lacked jurisdiction over the subject matter and that suit could not be brought against the Speaker of the Illinois House of Representatives,¹³ and that article V of the United States Constitution does not prescribe the manner in which a state legislature shall ratify proposed amendments to the Constitution. Plaintiffs moved for summary judgment on both counts of their complaint. Fifteen members of the Illinois House of Representatives sought leave to file a brief as amici curiae in opposition to plaintiffs' motion for summary judgment.

On May 21, 1974, after oral argument, we granted defendant's Motion to Dismiss and denied plaintiffs' Cross-Motion for Summary Judgment.¹⁴ We concluded that the ratification process began anew with the convening of the 78th Session of the General Assembly, and that no action had been requested of, or taken by, the Illinois Senate during that Session. Thus, we held that the issue presented us by plaintiffs was not yet ripe for review.

Until the entire Legislature, including both of its Houses, has acted, the question whether its action, whatever form it may have taken when completed, will constitute "ratification" cannot appropriately be addressed by us.

Memorandum and Order, May 21, 1974, at 7.

On May 31, 1974, ...