The second important district court opinion on the justiciability of Article V claims is Idaho v. Freeman, 529 F.Supp. 1107 (D. Idaho 1981), judgment stayed sub nom. Natl Org. of Women v. Freeman, 455 U.S. 918 (1982), vacated as moot and remanded to dismiss, 459 U.S. 809 (1982). Before turning to Freeman’s justiciability analysis, it is important to understand the facts before the court. In March 1972, Congress proposed the Equal Rights Amendment (acting, of course, by a two-thirds vote in each house as required by Article V) and set a seven-year period for ratification by state legislatures. Congress is not required to set a time limit for ratification, but it has customarily done so since it proposed the 18th amendment in 1917. This practice was upheld by the Supreme Court in Dillon v. Gloss, 256 U.S. 368 (1921).
The Idaho legislature ratified the ERA almost immediately after it was proposed. The resolution ratifying the amendment recited the seven-year time limit for ratification contained in the congressional resolution. By 1977, however, with the ERA not having received the requisite ratification by three-quarters of the state legislatures, Idaho changed its mind and rescinded its prior ratification.
By late 1978, the ERA had still not been ratified by the required supermajority. 35 states had ratified the amendment (three short of the required 38). Moreover, five of those states, including Idaho, had rescinded their ratifications. Faced with this situation, Congress acted to extend the ratification deadline until June 39, 1982, just over three years after the original deadline would expire on March 22, 1979.
A lawsuit challenging this action was brought by the states of Idaho and Arizona, as well as the legislative leadership and individual legislators from those states (joined by some individual legislators from the state of Washington). In essence, Idaho argued that (1) Congress could not extend the deadline for ratification of the ERA; (2) Congress could not count Idaho’s ratification of the ERA because it was predicated on a seven-year ratification period; and (3) Congress certainly could not extend the ratification period and then ignore Idaho’s rescission of its ratification. (A subsidiary issue was whether Congress could extend the deadline by a simple majority vote).
On the merits, these arguments seem extremely powerful. It is hard to see how Congress can set a seven-year ratification period and then unilaterally extend that period, at least without starting ratifications over at zero. It is inconceivable to me that Congress could extend the ratification period and at the same time prohibit states like Idaho, which ratified based on an understanding of a seven-year ratification period, from rescinding their prior ratifications. This would amount to a constitutional fraud on the states. Or so it seems to me and, I suspect, seemed to the district court in Freeman, which was unusually motivated to reach the merits.
It is worth mentioning that the defendants in Freeman twice sought to disqualify the district judge on the grounds that his leadership position in the Mormon Church (which officially opposed both the ERA and Congress’s extension of the ratification deadline) could cause his impartiality to be questioned. See Idaho v. Freeman, 507 F. Supp. 706 (D. Idaho 1981); Idaho v. Freeman, 478 F. Supp. 33 (D. Idaho 1979). In response to the first motion, brought by the Department of Justice, the court observed:
It is rather ironic that defendant should raise the issue of judicial prejudice in this particular action. It is apparent that in this case the district court is only a conduit for passing these issues on to the circuit court and ultimately, the Supreme Court of the United States. It is obvious from the pleadings that the evidence will almost entirely consist of public documents and records about which there is no dispute. In such a case, the rules which the appellate courts follow permit them to utterly disregard the district court’s decision and to review the evidence and the law as if the case had been initially tried before them.
478 F. Supp. at 37.
While this observation is accurate as a practical matter, it might be seen to indicate the mindset of a judge who expects to issue what in effect is an advisory opinion, rather than a binding resolution of a dispute between the parties. It provides some further evidence, along with the issues discussed in this post and the fact that the district court’s ruling was ultimately vacated by the Supreme Court, that the Freeman decision not only lacks any formal precedential authority, but is likely to be seen as an outlier with regard to its analysis of justiciability. Continue reading ‘Still More on Article V Justiciability: Idaho v. Freeman’ »