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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):

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