McClure v. Carter, Civ. No. 79-1340.

• Decision Date: 05 May 1981
• Docket Number: Civ. No. 79-1340.
• Citation: 513 F. Supp. 265
• Parties: James A. McCLURE, United States Senator, Idaho, Plaintiff, v. James Earl CARTER, President of the United States; and Abner J. Mikva, Defendants.
• Court: U.S. District Court — District of Idaho

513 F. Supp. 265

James A. McCLURE, United States Senator, Idaho, Plaintiff, v. James Earl CARTER, President of the United States; and Abner J. Mikva, Defendants.

Civ. No. 79-1340.

United States District Court, D. Idaho.

May 5, 1981.

Iver J. Longeteig, Runft & Longeteig, Chartered, Boise, Idaho, David H. Martin, Santarelli & Gimer, Washington, D. C., for plaintiff.

Neil H. Koslowe, Sp. Litigation Counsel, Civil Division, Dept. of Justice, Washington, D. C., for defendants.

Before FLETCHER, Circuit Judge, and McNICHOLS and TAYLOR, District Judges, sitting as a Special Three-Judge District Court.

DECISION

This case comes before this three-judge court on cross-motions for summary judgment. The amended complaint to which the motions are addressed challenges the appointment of former Congressman Abner J. Mikva to a position as a circuit judge for the United States Court of Appeals for the District of Columbia Circuit. The relevant portions of the statute under which the challenge is brought, Act of October 12, 1979, Pub.L.No. 96-86, § 101(c), 93 Stat. 656 (not codified), are set out in the margin.¹ The plaintiff, Senator McClure, asserting that the salaries of federal judges were increased during defendant Mikva's term in Congress, claims that Judge Mikva's² nomination, confirmation, and appointment as a circuit judge were in violation of Article I, section 6, clause 2 of the United States Constitution (the Ineligibility Clause).³ Senator McClure asks that we direct the President to notify defendant Mikva that his appointment was in violation of the Constitution, and that we notify defendant Mikva that his appointment was void ab initio and that he must vacate his office. The threshold question before us is whether we have jurisdiction to hear the case. We cannot reach the merits of Senator McClure's challenge unless we answer that question affirmatively.

BACKGROUND

The procedural posture of this case and the events in its background provide a context that is helpful in analyzing and attaching appropriate legal significance to the contentions made by the parties. The procedural steps taken and a summary of pertinent portions of the pleadings are set forth in the margin.⁴

Congressman Abner J. Mikva was nominated by President Carter as circuit judge for the District of Columbia Circuit. A number of senators, including Senator McClure, opposed the appointment. Indeed, a number of these senators, again including Senator McClure, voiced their opposition on the Senate floor,⁵ relying in their arguments on their belief that then-Congressman Mikva was philosophically unsuited to the job, as well as on their view that he was constitutionally ineligible for appointment because of the proscriptions of the Ineligibility Clause. These arguments failed to persuade a sufficient number of their fellow senators, and a majority of the Senate voted to confirm defendant Mikva as judge on September 25, 1979. 125 Cong. Rec. S13363 (daily ed. Sept. 25, 1979).

After the Senate voted to confirm Judge Mikva, Senator McClure and others proposed to the Senate the jurisdictional statute under which Senator McClure now sues. The Senate attached the proposed statute as a rider to an appropriation bill on October 10, 1979, 125 Cong.Rec. S14320, S14325 (daily ed. Oct. 10, 1979), and the House of Representatives agreed to it two days later. Id. H9081 (daily ed. Oct. 12, 1979).

The jurisdictional statute is unusual in several respects. First, it sets out a single substantive ground for challenging a new judicial appointment — violation of the Ineligibility Clause. A challenge to a judicial appointment on any other ground must be brought under some other statute. Second, it limits both in time and by institution the judicial appointments that may be challenged under the statute. It authorizes challenges to only those judicial appointments made during the 96th Congress and only those made to the United States Court of Appeals for the District of Columbia Circuit. A challenge to a judge appointed during any other Congress or to any other court must be brought under some other statute. Perhaps not coincidentally, the only judicial appointment that fits within the statute's limitations and might be subject to challenge on Ineligibility Clause grounds is that of defendant Mikva. Third, the statute authorizes suits by United States senators and members of the House of Representatives, irrespective of whether the senators voted for or against the appointment or, in the case of members of the House, voted at all. Fourth, the statute provides that suit may be brought either in the United States District Court for the District of Columbia or in any federal district court in the state which the senator or member of the House represents, irrespective of the distance between that state and the District of Columbia and irrespective of any connection between that state and the judicial appointment sought to be challenged.

In short, what the statute appears to authorize is a mechanism whereby a senator or member of the House of Representatives may challenge in a federal court in his or her home state the validity of the judicial appointment of a single person, Judge Mikva. Such a statute has, at one level, an entirely salutory purpose, for it would be antithetical to the rule of law that all government officials, and judges in particular, are pledged to uphold if a federal judge were permitted to take office in violation of the express terms of the United States Constitution. The statute is, however, problematic at quite another level, for under article III of the Constitution federal courts may decide only cases and controversies properly brought before them, by parties with sufficient stake in the dispute to ensure that a decision by the courts is not inconsistent with the limited role the courts must play within our tripartite federal system of government. The fact that the statute makes senators and members of the House, and no others, "enforcers" of the Constitution in the judicial forum implicates special concerns regarding the separation of powers.

JUSTICIABILITY

The federal courts have consistently exercised care to limit their jurisdiction to the case and controversy requirement of article III. This governing principle is more easily stated than applied, however, since comprehended within the limitations imposed by the terms "cases" and "controversies" are concerns about the proper functioning of courts in dispute resolution and the allocation of power among the three branches of government.

Our initial analysis of the unusual statute before us embraced a full range of inquiry into the various aspects of justiciability.⁶ We conclude, however, that one of its aspects — the requirement of standing — is dispositive. Article III requires that the parties to a lawsuit have "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). The issue confronting us is whether Senator McClure has such a personal stake.

The interpretations of the doctrine of standing are manifold. The Supreme Court has considered the issue in numerous contexts and has expressed the standing requirements in several formulations. Some of the formulations leave one with the sense that standing can never be determined until the case has been tried on the merits; only at that point can one say with certainty that the plaintiff did or did not have a protected legal right or that he or she suffered a wrong for which the law provides a remedy. The distinction between injury "in fact" and injury "in law" and whether either or both remain requirements for standing is not always clear. The Court has at times required that a plaintiff show a distinct "legal interest" before he or she may have standing in federal court. E. g., Jenkins v. McKeithen, 395 U.S. 411, 423, 89 S.Ct. 1843, 1849, 23 L.Ed.2d 404 (1969). More recently, the Court has said that a plaintiff must merely be within the "zone of interests" sought to be protected by the constitutional or statutory guarantee in question. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). In other cases, the Court has suggested that a plaintiff need only show "injury in fact" to satisfy the personal stake requirement of article III. E. g., Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978); United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). A person may thus have standing, despite the lack of a demonstrable legal right, if he can show an injury in fact and, we would surmise, some colorable legal claim. The law is less clear that a person without an injury in fact may have standing, although it appears that at least in some limited circumstances a statute may give such a person a cause of action based on a rationale of enforcing the public interest through private persons concerned about public questions. See, e. g., Sierra Club v. Morton, 405 U.S. 727, 732 n.3, 92 S.Ct. 1361, 1364 n.3, 31 L.Ed.2d 636 (1972); Metropolitan Washington Coalition for Clean Air v. District of Columbia, 511 F.2d 809, 814 (D.C.Cir.1975); Clean Air Act, 42 U.S.C. § 7604 (Supp. II 1978) (authorizing civil suits by "any person"). But in Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975), the Court, in acknowledging that Congress may grant an express right of action that otherwise would be barred on prudential grounds, affirmed that "the plaintiff still must allege a distinct and palpable injury to himself, even if it is an injury shared by a large class of other possible litigants."

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