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United States District Court, Northern District of Illinois, E.D

May 10, 1985


The opinion of the court was delivered by: Shadur, District Judge.


Wayne Wojtas ("Wojtas") has moved to dismiss the indictment in this case, which charges Wojtas with three counts of willful failure to file income tax returns in violation of 26 U.S.C. § 7203. Wojtas' premise is that the Sixteenth Amendment was not validly ratified, so that the present Internal Revenue Code (the "Code") is a nullity and any indictment brought under the Code is a fortiori invalid.*fn1 Wojtas seeks an evidentiary hearing to deal with his submissions in that respect. For the reasons stated in this memorandum opinion and order, no evidentiary hearing is required and the motion is denied.

In support of Wojtas' motion, his counsel Andrew Spiegel, Esq. ("Spiegel") submits not only the customary supporting memorandum*fn2 but three large volumes. They comprise "The Law That Never Was — Vol. 1" (subtitled "The fraud of the 16th Amendment and personal Income Tax"), written by Bill Benson and M.J. "Red" Beckman and published this year by Constitutional Research Associates, and two looseleaf binders containing the documents referred to in the Benson-Beckman volume. This Court has read all the introductory and concluding materials in the Benson-Beckman volume, particularly including the February 15, 1913 memorandum (the "Opinion") by the Solicitor of the Department of State (that Department's general counsel, with responsibility for furnishing legal opinions to the Secretary of State) — a document characterized by Messrs. Benson and Beckman as the "Golden Key" that "unlocks a Pandora's box of criminal fraud perpetrated by public servants, who betrayed the trust of their masters." In addition this Court has sampled, but has not read all of, the materials dealing with the actions taken within the various states in the ratification process.*fn3

Spiegel argues for Wojtas that Secretary of State Philander Knox committed fraud — a violation of the criminal statutes of the United States — in certifying the adoption of the Sixteenth Amendment. That, counsel says, distinguishes the authorities on which the United States seeks to rely in opposing his motion.

But Wojtas' counsel is no different from most persons who essay revisionist history: He prefers to ignore what he cannot explain away. Article V of the Constitution reads in relevant part:

  The Congress, whenever two thirds of both Houses
  shall deem it necessary, shall propose Amendments
  to this Constitution . . . which . . . shall be
  valid to all Intents and Purposes, as Part of
  this Constitution, when ratified by the
  Legislatures of three fourths of the several
  States. . . .

And the few cases that have been asked to deal with issues comparable to the one now tendered to this Court have uniformly held questions as to compliance with Article V's requirements are within the sole province of Congress and not the courts — in the language that has come to characterize such issues, they are "political" (that is, nonjusticiable) questions.

Leser v. Garnett, 258 U.S. 130, 42 S.Ct. 217, 66 L.Ed. 505 (1922) dealt with several attacks on the Nineteenth Amendment. For current purposes the relevant contention was the claimed invalidity of two states' ratifications "because adopted in violation of the rules of legislative procedure prevailing in the respective states" (id. at 137, 42 S.Ct. at 218). Speaking for a unanimous Supreme Court, Justice Brandeis first referred to the fact two other states had since ratified the Amendment but then went on to say (id.):

  But a broader answer should be given to the
  contention. The proclamation by the Secretary
  certified that from official documents on file in
  the Department of State it appeared that the
  proposed amendment was ratified by the
  Legislatures of 36 states, and that it "has
  become valid to all intents and purposes as a
  part of the Constitution of the United States."
  As the Legislatures of Tennessee and of West
  Virginia had power to adopt the resolutions of
  ratification, official

  notice to the Secretary, duly authenticated, that
  they had done so, was conclusive upon him, and,
  being certified to by his proclamation, is
  conclusive upon the courts. The rule declared in
  Field v. Clark, 143 U.S. 649, 669-673, 12 Sup.Ct.
  495, 36 L.Ed. 294 [(1892)], is applicable here.
  See, also Harwood v. Wentworth, 162 U.S. 547, 562,
  16 Sup.Ct. 890, 40 L.Ed. 1069 [(1896)].

Field too had rejected the idea of going behind an official attestation, this time in the context of congressional legislation. As Field, 143 U.S. at 672, 12 S.Ct. at 497 said in a part of the opinion cited approvingly in Leser:

  The signing by the Speaker of the House of
  Representatives, and by the President of the
  Senate, in open session, of an enrolled bill, is
  an official attestation by the two houses of such
  bill as one that has passed Congress. It is a
  declaration by the two houses, through their
  presiding officers, to the President, that a
  bill, thus attested, has received, in due form,
  the sanction of the legislative branch of the
  government, and that it is delivered to him in
  obedience to the constitutional requirement that
  all bills which pass Congress shall be presented
  to him. And when a bill, thus attested, receives
  his approval, and is deposited in the public
  archives, its authentication as a bill that has
  passed Congress should be deemed complete and
  unimpeachable. As the President has no authority
  to approve a bill not passed by Congress, an
  enrolled act in the custody of the Secretary of
  State, and having the official attestations of
  the Speaker of the House of Representatives, of
  the President of the Senate, and of the President
  of the United States, carries, on its face, a
  solemn assurance by the legislative and executive
  departments of the government, charged,
  respectively, with the duty of enacting and
  executing the laws, that it was passed by
  Congress. The respect due to coequal and
  independent departments requires the judicial
  department to act upon that assurance, and to
  accept, as having passed Congress, all bills
  authenticated in the manner stated: leaving the
  courts to determine, when the question properly
  arises, whether the act, so authenticated, is in
  conformity with the Constitution.

Wojtas' counsel simply refuses to recognize the impact of Field (let alone Leser) on his arguments. One of his contentions is that the "Golden Key" Solicitor's opinion improperly relied on the presumptive regularity of certification — on the idea that because a state legislature can only approve or disapprove a proposed constitutional amendment, it must necessarily be presumed "in the absence of an express stipulation to the contrary, that a legislature did not intend to do something that it had not the power to do, but rather that it intended to do something that it had the power to do, namely, where its action has been affirmative, to ratify the amendment proposed by Congress" (Opinion at 15, Benson-Beckman at 19). That was the predicate for the conclusion of the Solicitor, obviously relied on by Secretary Knox in his own certification of the Sixteenth Amendment, that changes of wording or capitalization in "merely reciting the proposed amendment" did not impair the states' ratification. But if that line of analysis is a kind of bootstrap-lifting, as Wojtas' counsel would have it, it mirrors precisely the kind of reasoning the Supreme Court itself has used as the ground for the courts' non-inquiry into matters committed by Article V of the Constitution to another branch of government.

Though the United States has cited other more hoary authority on the "political question" issue, only one other Supreme Court decision need be mentioned. Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939) fell one vote short of a determination that everything in Article V is for Congress alone (and not the courts) to decide. As the concurring opinion by Justice Black (for himself and Justices Roberts, Frankfurter and Douglas) said (id. at 459, 59 S.Ct. at 984):

  No such division between the political and
  judicial branches of the government is made by
  Article V which grants power

  over the amending of the Constitution to Congress
  alone. Undivided control of that process has been
  given by the Article exclusively and completely
  to Congress. The process itself is "political" in
  its entirety, from submission until an amendment
  becomes part of the Constitution, and is not
  subject to judicial guidance, control or
  interference at any point.

Even though the majority opinion did not go that final step, Justice Black's concurring opinion accurately characterized the Court's opinion this way in the course of explaining why the four-judge concurrence believed the Court had not gone far enough (id., emphasis added):

  If Congressional determination that an amendment
  has been completed and become a part of the
  Constitution is final and removed from examination
  by the courts, as the Court's present opinion
  recognizes, surely the steps leading to that
  condition must be subject to the scrutiny, control
  and appraisal of none save the Congress, the body
  having exclusive power to make that final

That is indeed an accurate reading of the Court's opinion and decision in Coleman. Although the Court did indicate some possible room for minimal judicial scrutiny of one narrow Article V question (see id. at 446-47, 59 S.Ct. at 978-79, reflecting an equal division on whether that question "presents a justiciable controversy, or a question which is political in its nature and hence not justiciable"), that division clearly did not extend to the kind of attack dealt with thereafter by the Court (id. at 447-56, 59 S.Ct. at 979-83) — an attack comparable to the one launched by Wojtas here. Though the Court did not announce as general a principle as the concurring Justices would have preferred, the Court's statements (id. at 450-51, 59 S.Ct. at 980-81) as to the "political question" nature of the issues it dealt with have equal force for the current question. Here the question is indeed whether (in the language of the Coleman concurrence) "an amendment has been completed and become a part of the Constitution," and as to that the "Congressional determination . . . is final and removed from examination by the courts."

Despite Wojtas' counsel's efforts to distinguish away controlling Supreme Court authority, the principles announced in Leser, Field and Coleman are dispositive. Secretary Knox's certification and Congress' determination as to the adoption of the Sixteenth Amendment are not judicially reviewable. Because the kind of evidence offered by Wojtas relates to a nonjusticiable issue under those authorities, no evidentiary hearing is required. Wojtas' motion to dismiss is denied.*fn4


One kind of extraordinary irony is posed by the motion dealt with in the body of this opinion. Wojtas' counsel Spiegel, apparently imbued with the same fervor that marks his clients' beliefs, makes a number of references to asserted misrepresentations and false representations by government counsel (in that respect Spiegel would do well to read ABA Code of Professional Responsibility EC 7-37). Yet he fails to recognize the lack of candor in one of his own fundamental contentions, on which it is worth spending a moment.

As the opinion reflects, the linchpin of Spiegel's motion is its argument that Secretary Knox committed fraud in certifying the adoption of the Sixteenth Amendment. In turn that depends on the proposition that the Solicitor to the State Department, who was asked for an opinion (the "Golden Key"), gave one — but that Secretary Knox could not reasonably have relied on that opinion. Spiegel's R.Mem. 9 captions its argument in that respect:

  C. Secretary Knox And His Staff Violated A Known
  Legal Duty By Their Fraudulent Certification

Spiegel then charges (id. at 11):

  D. Secretary Knox Violated The Criminal Laws Of
  The United States,

  Appendix — Continued

In support of that charge he urges (id. at 12, emphasis added):

  Based upon the records Wojtas has obtained,
  Secretary Knox should never have issued his
  fraudulent certification. He knew or should have
  known that not one single state properly ratified
  the proposed amendment. Yet he did so in violation
  of the criminal laws of the United States.

"Should have known" is of course a statement of an objective test of fraud — of the idea a person's knowledge, made relevant for criminal responsibility by the government's need to prove willfulness,[fn1a] is to be measured by the reasonableness of the person's belief, not simply whether such belief is honestly held. But when the government seeks to urge the same objective standard against Spiegel's own clients in these very tax fraud cases, Spiegel resists with all the force at his command.[fn2a]

As it happens, this Court believes an objective standard of "reasonable belief" is incorrect — that teachings of the Supreme Court and a proper reading of the mens rea concept are accurately reflected by the First Circuit's opinion in United States v. Aitken, 755 F.2d 188 (1st Cir. 1985) and not by the opinion of our Court of Appeals in United States v. Moore, 627 F.2d 830, 833 (7th Cir. 1980), cert. denied, 450 U.S. 916 [101 S.Ct. 1360, 67 L.Ed.2d 342] (1981) (and see United States v. Thibodeaux, 758 F.2d 199 [201 n. 2] (7th Cir. 1985)). But the point here is not whether counsel is right in contending that the proper test for his clients' criminal intent is a subjective one, but rather whether counsel is forthright in simultaneously urging a sharply different standard for "criminality" of the longdeceased former Secretary of State.

This is not a case where "foolish consistency is the hobgoblin of small minds." Counsel's responsibilities to the adversary system deserve better.

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