United States District Court, Northern District of Illinois, E.D
May 21, 1974
GOUDYLOCH E. DYER ET AL., PLAINTIFFS,
W. ROBERT BLAIR, SPEAKER OF THE ILLINOIS HOUSE OF REPRESENTATIVES, DEFENDANT.
The opinion of the court was delivered by: Stevens, Circuit Judge, Hoffman, Senior District Judge, and Parsons, District Judge. Stevens, Circuit Judge.
MEMORANDUM AND ORDER
In March of 1972, Congress passed a resolution proposing the
"Equal Rights Amendment" to the Constitution of the United States
and submitted it to the States. This litigation arises out of a
dispute between members of the Illinois General Assembly
concerning the question whether action which that body, as a
whole, has not yet taken would, if taken, constitute
"ratification" of the proposed amendment within the meaning of
Article V of the United States Constitution.*fn1 At this
juncture of the Illinois legislative process, we are satisfied
that the issue which is now presented is not justiciable because
it is not ripe for review.
Plaintiffs, duly elected members of the Illinois House of
Representatives, brought this action against the Speaker of the
House, challenging the constitutionality of Article XIV, Section
4 of the Illinois Constitution of 1970 and House Rule 42 of the
Illinois House of Representatives, both of which purport to
require a three-fifths majority vote in the House before a
federal constitutional amendment can be deemed ratified.
Plaintiffs ask us to declare that, as a matter of federal
constitutional law, ratification by the Illinois General Assembly
is effective when a majority of the membership of each branch of
the Legislature votes in favor of ratification; they seek an
injunction directing the Speaker to certify House passage of the
proposed Equal Rights Amendment since the House voted to ratify
by more than a majority (but less than three-fifths) of its
membership. A three-judge district court was convened pursuant to
28 U.S.C. § 2284.*fn2 Oral argument was heard on defendant's
Motion to Dismiss
and plaintiffs' Cross-Motion for Summary Judgment.*fn3 We grant
the Motion to Dismiss and deny the Motion for Summary Judgment.
The undisputed facts can be briefly summarized.
In 1972, the Illinois Senate adopted a resolution providing for
the ratification of the Equal Rights Amendment. Presumably that
resolution was forwarded to the Illinois House of
Representatives, but no action was taken by that body in the 77th
Session of the General Assembly. That legislative session having
terminated in 1972, the parties agree that the Senate action
taken in that session has no legal effect, since both Houses must
concur in any effective act of ratification. The ratification
process thus was required to begin anew in the 78th Session. In
the 78th Session, the process of ratifying the Equal Rights
Amendment was initiated in the House of Representatives. As far
as the record discloses, no action has been requested of, or
taken by, the Senate.*fn4
On April 4, 1973, the Illinois House of Representatives voted
on its House Joint Resolution No. 14 providing for the
ratification of the Equal Rights Amendment; the vote was 95 in
favor of, and 72 against, ratification, a ratio which is more
than a majority but less than three-fifths of the membership of
that body. In compliance with House Rule 42, the defendant
refused to certify the ratification resolution as having passed
because it was not supported by a three-fifths vote.
The issue which would be presented if, at the same session of
the Illinois General Assembly, the Senate should also pass a
ratifying resolution by a majority vote, is not now before us.
When plaintiffs' counsel was asked at oral argument why we should
not await Senate action to determine whether or not there would
be occasion for judicial intervention, we were advised, in
effect, that the consideration of the matter in the Senate would
be influenced by our interpretation of the law.
Defendant argues, we think with force, that if we may intervene
at this stage of the Illinois legislative process, we might with
equal justification require committees of either House to act
only by majority vote when a question relating to the
ratification process is at issue. As federal judges we are
satisfied that we may not participate in preliminary stages of a
State's legislative process.*fn5
Whatever the legal significance of a majority vote in favor of
ratification of the Equal Rights Amendment by both Houses of the
Illinois General Assembly might be, we are now satisfied that we
do not have the power to provide the parties with the advisory
opinion they seek in this litigation.
The issue which plaintiffs now seek to present is not ripe for
review. Unlike the doctrine of standing, which establishes that
the plaintiff must have sufficient interest in a case, or the
requirement that the controversy must be real and not collusive,
the doctrine of ripeness focuses upon the extent to which the
controversy has matured at the time of the litigation. In
Longshoremen's Union v. Boyd, 347 U.S. 222, 74 S.Ct. 447, 98
L.Ed. 650, the Supreme Court refused to adjudicate the
constitutionality of a section of the Immigration and Nationality
Act of 1952 which
the District Director of I.N.S. construed so as to treat aliens
domiciled in the continental United States returning from work in
Alaska as if they were aliens entering the United States for the
first time. The plaintiffs were a union and some of its alien
members who argued that the purported construction of the statute
threatened to violate the property rights of alien fishermen who
ordinarily worked in Alaskan waters. Writing for the Court,
Justice Frankfurther explained the Court's unwillingness to
decide the merits, saying that the case "is not a lawsuit to
enforce a right; it is an endeavor to obtain a court's assurance
that a statute does not govern hypothetical situations that may
or may not make the statute applicable." 347 U.S. at 224, 74
S.Ct. at 448.*fn6
The doctrine, then, is one which avoids the decision of an
issue which may be mooted before the decision is anything but
advisory in character. This is exactly the difficulty with
plaintiffs' case. If the Illinois Senate fails to ratify the
Equal Rights Amendment before the end of the 78th Session, no
controversy will exist. Article V of the United States
Constitution requires ratification of amendments by the
"Legislatures of three fourths of the several States."*fn7 The
Legislature of the State of Illinois has not yet taken any action
which is claimed to constitute "ratification" within the meaning
of Article V. 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.
We hold that the case is not ripe for review. Accordingly, the
complaint must be dismissed.
Plaintiffs' Motion for Summary Judgment is denied; defendant's
Motion to Dismiss is hereby granted.
This cause came before the Court on plaintiffs' motion to
vacate the order of May 21, 1974, dismissing the complaint.
Additionally, plaintiffs seek to renew their motion for summary
The Court is now advised that on May 21, 1974, the Illinois
Senate voted on whether to ratify the proposed Equal Rights
Amendment to the Constitution of the United States. This measure
was presented to the Senate in the form of Senate Joint
Resolution 68. The transcript of that proceeding contains the
PRESIDENT OF THE SENATE:
"The question is, shall the Senate adopt Senate Joint
Resolution 68. Thirty-six votes are required for
adoption. Those in favor vote Aye. Those opposed vote
No. The voting is open. Have all voted who wish to
vote? . . . Take the record. For what purpose does
Senator Saperstein arise?
"I move to postpone consideration.
PRESIDENT OF THE SENATE:
"Senator Saperstein has moved to postpone
consideration. All in favor signify by saying Aye.
Contrary No. The motion carries. . . . Consideration
on Senate Joint Resolution 68 is postponed. . . ."
(p. 57 of Exhibit A, Partee Affidavit).
In light of what transpired at that proceeding, the issue
presented remains non-justiciable. No controversy can exist until
the "Legislature" of the State of Illinois takes action which is
claimed to constitute "ratification" within the meaning of
Article V. It bears emphasizing that,
"[u]ntil the entire Legislature, including both of
its Houses, has acted, the question [of] whether its
action, whatever form it may have taken when
completed, will constitute `ratification' cannot
appropriately be addressed by us." (p. 7, Memorandum
and Order of May 21, 1974).
The unofficial vote of the Illinois Senate, the ground upon which
this motion has been made, does not, in our opinion, amount to
The case upon which the movants have relied is inapposite. In
Adams v. City of Colorado Springs, 308 F. Supp. 1397 (D. Colo.
1970), the court was justifiably concerned with the "irreparable
damage" that would befall the plaintiffs should it require them
to await completion of the Colorado annexation procedure before
proceeding with suit. The court was impressed with the fact that,
even if the annexation procedures were declared to be
unconstitutional, taxes which had been levied could not
thereafter be recovered. Thus, the plaintiffs would have been
without remedy if the court had required them to await annexation
before proceeding with suit. Here we are concerned with the
extent to which the controversy has matured, and more especially,
are desirous of avoiding the issuance of an opinion which would
be merely advisory in character. See, e.g., Longshoremen's Union
v. Boyd, 347 U.S. 222, 224, 74 S.Ct. 447, 98 L.Ed. 650 (1954);
United Public Workers v. Mitchell, 330 U.S. 75, 89-91, 67 S.Ct.
556, 91 L.Ed. 754 (1947); Electric Bond Company v. Securities and
Exchange Commission, 303 U.S. 419, 443, 58 S.Ct. 678, 82 L.Ed.
Because we do not view the action taken on Senate Joint
Resolution 68 as advancing this litigation beyond the point it
occupied on the date on which we rendered our decision,
plaintiffs' motion to vacate our order of May 21, 1974 must be
Since the order of May 21 stands as entered, we do not reach
that part of plaintiffs' motion which seeks summary judgment.