18 16 the Sergeant at Arms of the House-an official newly elected by each Congress 15 is responsible for the retention and disbursement to Congressmen of the funds appropriated for their salaries. These funds are payable from the United States Treasury upon requisitions presented by the Sergeant at Arms, who is entrusted with keeping the books and accounts "for the compensation and mileage of Members." "A Congressman who has presented his credentials and taken the oath of office 1s is entitled to be paid monthly on the basis of certificates of the Clerk " and Speaker of the House." Powells' prayer for a mandamus and an injunction against the Sergeant at Arms is presumably based on this statutory scheme. Several important questions remain unanswered, however, on this record. Is the Sergeant at Arms the only necessary defendant? If so, the case is surely moot as to the other respondents, including the House members, and they should be dismissed as parties on that ground rather than after resolution of difficult constitutional questions under the Speech or Debate Clause. But it is far from clear that Powell has an appropriate or adequate remedy against the remaining respondents. For if the Speaker does not issue the requisite certificates and the House does not rescind Resolution No. 278, can the House agents be enjoined to act in direct contravention of the orders of their employers? Moreover, the office of Sergeant at Arms of the 90th Congress has now expired, and the present Sergeant at Arms serves the 91st Congress. If he were made a party in that capacity, would he have the authority-or could the 91st Congress confer the authority-to disburse money for a salary owed to a Representative in the previous Congress, particularly one who never took the oath of office? Presumably funds have not been appropriated to the 91st Congress or requisitioned by its Sergeant at Arms for the payment of salaries to members of prior Congresses. Nor is it ascertainable from this record whether money appropriated for Powell's salary by the 90th Congress, if any, remains at the disposal of the current House and its Sergeant at Arms."1 23 21 There are, then substantial questions as to whether, on his salary claim, Powell could obtain relief against any or all of these respondents. On the other hand, if he was entitled to a salary as a member of the 90th Congress, he has a certain and completely satisfactory remedy in an action for a money judgment against the United States in the Court of Claims.22 While that court could not have ordered Powell seated or entered a declaratory judgment on the constitutionality of his exclusion, it is not disputed that the Court of Claims could grant him a money judgment for lost salary on the ground that his discharge from the House violated the Constitution. I would remit Congressman Powell to that remedy, and not simply because of the serious doubts about the availability of the one he now pursues. Even if the mandatory relief sought by Powell is appropriate and could be effective, the Court should insist that the salary claim be litigated in a context that would clearly obviate the need to decide some of the constitutional questions with which the Court grapples today, and might avoid them altogether." In an action in the Court of Claims for a money judgment against the United States, 15 Act of Oct. 1. 1890, § 6, Stat. 646, 2 U.S.C. § 83. 16 U.S. Const.. Art. I, § 6; 2 U.S.C. § 47. 17 2 U.S.C. §§ 80, 78. 18 2 U.S.C. § 35. 19 2 U.S.C. § 34. 20 2 U.S.C. § 48. The respondents allege without contradiction that the Sergeant at Arms does not have sufficient funds to pay Congressman Powell's back salary claims. Separate appropriations for the salaries of Congressmen are made in each fiscal year, see, e.g., 80 Stat. 354, 81 Stat. 127, 82 Stat. 398, and, according to the respondents, "it is the custom of the Sergeant to turn back to the Treasury all unexpended funds at the end of each fiscal year." Thus the only funds still held by the Sergeant are said to be those appropriated for the present fiscal year commencing July 7, 1968. 29The Court of Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Con 28 U.S.C. § 1491. The district courts have concurrent jurisdiction over such gress claims only in amounts less than $10,000. 28 U.S.C. § 1346. 23 United States v. King, ante, p. 1. The petitioners suggest that the inability of the Court of Claims to grant such relief might make any remedy in that court inadequate. But since Powell's only remaining interest in the case is to collect his salary, a money judgment in the Court of Claims would be just as good as, and probably better than, mandatory relie against the agents of the House. The petitioners also suggest that the Court of Chains would be unable to grant relief because of the pendency of Powell's claim in another court, 28 U.S.C. § 1500, but that would, of course. constitute no obstacle if, as I suggest, the Court should order this action dismissed on grounds of mootness. 24 It is possible. for example, that the United States in such an action would not deny Powell's entitlement to the salary but would seek to offset that sum against the amounts which Powell was found by the House to have appropriated unlawfully from Government coffers to his own use. there would be no question concerning the impact of the Speech or Debate Clause on a suit against members of the House of Representatives and their agents, and questions of jurisdiction and justiciability would, if raised at all, be in a vastly different and more conventional form. In short, dismissal of Powell's action against the legislative branch would not in the slightest prejudice his money claim," and it would avoid the necessity of deciding constitutional issues which, in the petitoners' words, "touch the bedrock of our political system [and] strike at the very heart of representative government." If the fundamental principles restraining courts from unnecessarily or prematurely reaching out to decide grave and perhaps unsettling constitutional questions retain any vitality, see Ashwander v. TVA, 297 U.S. 288, 346-348 (Brandeis, J., concurring), surely there have been few cases more demanding of their application than this one. And those principles are entitled to special respect in suits, like this suit, for declaratory and injunctive relief, which it is within a court's broad discretion to withhold. "We have cautioned against declaratory judgments on issues of public moment, even falling short of constitutionality, in speculative situations." Public Affairs Press v. Rickover, 369 U.S. 111, 112. "Especially where governmental action is involved, courts should not intervene unless the need for equitable relief is clear, not remote or speculative." Eccles v. Peoples Bank of Lakewood Village, 333 U.S. 426, 431. If this lawsuit is to be prolonged, I would at the very least not reach the merits without ascertaining that a decision can lead to some effective relief. The Court's remand for determination of that question implicitly recognizes that there may be no remaining controversy between petitioner Powell and any of these respondents redressable by a court, and that its opinion today may be wholly advisory. But I see no good reason for any court even to pass on the question of the availability of relief against any of these respondents. Because the essential purpose of the action against them is no longer attainable and Powell has a fully adequate and far more appropriate remedy for his incidental back-pay claim. I would withhold the discretionary relief prayed for and terminate this lawsuit now. Powell's claim for salary may not be dead, but this case against all these respondents is truly moot. Accordingly, I would vacate the judgment below and remand the case with directions to dismiss the complaint. 25 Relying on Bank of Marin v. England, 385 U.S. 99, 101, the petitioners complain that it would impose undue hardship on Powell to force him to "start all over again" now that he has come this far in the present suit. In view of the Court's remand of this case for further proceedings with respect to Powell's remedy, it is at least doubtful that remitting him to an action in the Court of Claims would entail much more cost and delay than will be involved in the present case. And the inconvenience to litigants of further delay or litigation has never been deemed to justify departure from the sound principle, rooted in the Constitution, that important issues of constitutional law should be decided only if necessary and in cases presenting concrete and living controversies. PART 4.-GOVERNMENT SERVICES ADMINISTRATION DOCUMENTS ! PART 5.-LIBRARY OF CONGRESS WORDING AND TYPE OF LEGISLATIVE ACTION ON' STATE RATIFICATION OF THE PROPOSED EQUAL RIGHTS AMENDMENT (By Karen R. Keesling, Analyst in American National Government, Government Division, July 14, 1978) STATE RATIFICATION OF THE PROPOSED EQUAL RIGHTS AMENDMENT (Wording and type of legislative action) This report presents a summary of the wording and the type of legislative action taken by the 35 States which have ratified the proposed Equal Rights Amendment to the United States Constitution. The proposed Amendment, H.J. Res. 208, was passed by the Congress on March 22, 1972 and submitted to the States for their consideration. The following is the text of H.J. Res. 208: H.J. RES. 208 Proposing an amendment to the Constitution of the United States relative to equal rights for men and women. 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: "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." WORDING OF STATE RATIFICATION RESOLUTION State ratifications that quoted H.J. Res. 208 in its entirety Twenty-five State ratifications quoted H.J. Res. 208 in its entirety, including the language referring to the seven year ratification period. These are: California, Colorado, Connecticut, Hawaii, Idaho, Indiana, Iowa, Kansas, Maine, Massachusetts, Michigan, Minnesota, Montana, Nebraska, New Hampshire, New Mexico, North Dakota, Ohio, South Dakota, Tennessee, Texas, Washington, West Virginia, Wisconsin and Wyoming. The ratification resolutions are reproduced in the Appendix. State ratifications not quoting H.J. Res. 208 in its entirety, but referring to the seven year ratification period Five State ratifications did not quote H.J. Res. 208 in its entirety, but during the ratification process included reference to the seven year time limit for rati (739) fication. These States are: Delaware, Kentucky,' New York, Oregon, and Vermont. The ratification resolutions are reproduced in the Appendix. State ratifications not referring to the seven year ratification period Five States did not quote H.J. Res. 208 in its entirety nor did they include any mention of the seven year ratification period during their ratification process. These States are: Alaska, Maryland, New Jersey, Pennsylvania, and Rhode Island. The ratification resolutions are reproduced in the Appendix. Concurrent resolution TYPE OF LEGISLATIVE ACTION The following nine States ratified the proposed ERA by concurrent resolution: Colorado, Delaware, Hawaii, Kansas, New Hampshire, New Jersey, New York, North Dakota, and Texas. Joint resolution The following twenty-two States ratified the proposed ERA by joint resolution: Alaska, California, Connecticut, Idaho, Indiana, Iowa, Kentucky, Maine, MaryJand, Michigan, Montana, New Mexico, Ohio, Oregon, Pennsylvania, South Dakota, Tennessee, Vermont, Washington, West Virginia, Wisconsin, and Wyoming. Resolution The following four States ratified the proposed ERA by resolution: Massahusetts, Minnesota, Nebraska, and Rhode Island. STATE RATIFICATION DOCUMENTATION ALASKA STATE LEGISLATURE-1972 HOUSE JONT RESOLUTION NO. 125 Relating to the ratification of the 27th Amendment to the Constitution of the United States. Be it resolved by the Legislature of the State of Alaska: Whereas the Congress of the United States has approved a proposed amendment to the United States Constitution that stipulates "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex"; and Whereas this proposal has been sent to the states for ratification: be it Resolved, That the Seventh Alaska Legislature hereby ratifies the proposed 27th Amendment to the Constitution of the United States prohibiting the denial or abridgment of equality of rights under the law by the United States or by any state on account of sex. CALIFORNIA RESOLUTION CHAPTER Senate Joint Resolution No. 80-Relative to ratification of an amendment to the Constitution of the United States, proposed by the Congress of the United States, relating to equal rights for men and women. LEGISLATIVE COUNSEL'S DIGEST SJR SO. Dymally. Equal rights. Ratifies proposed amendment to United States Constitution relating to equality of rights for men and women. 1 The wording of the Kentucky resolution omitted two words and one comma in the Article. At the request of the Director of the Federal Register, Kentucky submitted a new certificate containing reference to H.J. Res. 208, which was accepted as ratification of the proposed ERA by the State of Kentucky. 2 The State of Alaska included only Section 1 of the Article in its ratification resolution. The Director of the Federal Register requested that the certification of ratification include a reference to H.J. Res. 208, which was completed by Alaska and subsequently accepted by the Director as ratification of the proposed ERA by the State of Alaska. Whereas, the 92nd Congress of the United States of America has adopted House Joint Resolution No. 208, two-thirds of each house concurring therein, proposing an amendment to the Constitution of the United States, in the following words, to wit: "JOINT RESOLUTION "Proposing an amendment to the Constitution of the United States relative to equal rights for men and women. "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. "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.'"; and Whereas, said proposed amendment will be valid as part of the Constitution of the United States when ratified by the legislatures of three-fourths of the several states; Now, therefore, be it Resolved by the Senate and Assembly of the State of California, jointly, A majority of all the members elected to each house of said Legislature voting in favor thereof, that the proposed amendment be and the same is hereby ratified by the Legislature of the State of California, and be it further Resolved, That certified copies of the foregoing preamble and resolution be forwarded by the Governor of the State of California to the President of the United States, the Vice President of the United States, the Speaker of the House of Representatives of the United States, and the Administrator of General Services. COLORADO HOUSE CONCURRENT RESOLUTION NO. 1017 By Representatives Dittemore, Bain, Benavidez, Miller, Munson, Byerly, Carroll, Coloroso, Cooper, DeMoulin, Friedman, Gallagher, Hamilton, Jackson, Kirchi, Knox, Kopell, Koster, Lamm, Lindley, Lucero, Mullen, Safran, Sooter, Stonebraker, Strahle, Strang, Valdez, and Wells; also Senators Stockton, Bermingham, Cisneros, Dines, Garnsby, MacManus, Schieffelin, Vollack, and Wunsch RATIFYING THE PROPOSED AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES RELATIVE TO EQUAL RIGHTS FOR MEN AND WOMEN Whereas, the Ninety-second Congress of the United States of America, at its second session, in both Houses, by a constitutional majority of two-thirds thereof, has proposed an amendment to the Constitution of the United States of America in the following words, to wit: JOINT RESOLUTION Proposing an amendment ot the Constitution of the United States relative to equal rights for men and women. 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 : |