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DYER v. BLAIR

February 20, 1975

GOUDYLOCH E. DYER ET AL., PLAINTIFFS,
v.
W. ROBERT BLAIR, SPEAKER OF THE ILLINOIS HOUSE OF REPRESENTATIVES,[FN*] 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,[FN*] DEFENDANTS.



Before Stevens, Circuit Judge, Hoffman, Senior District Judge, and Parsons, District Judge.

The opinion of the court was delivered by: Stevens, Circuit Judge.

    MEMORANDUM AND ORDER

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.*fn1 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,*fn2 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.*fn3 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 majority*fn4 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).*fn5

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.*fn6

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.*fn7 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.*fn8 Proponents of the amendment to Rule 42 relied heavily on this opinion.*fn9 Opponents ...


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