| [1] | UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT |
| [2] | No. 85-3069 |
| [3] | 1986.C09.42160 <http://www.versuslaw.com>; 792
F.2d 1438 |
| [4] | argued and submitted: February 12, 1986. |
| [5] | UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. LELAND G. STAHL, DEFENDANT-APPELLANT |
| [6] | Appeal from the United States District Court for the District of
Montana, W. B. Enright, District Judge, Presiding, D.C. No. CR 85-9
BLG. |
| [7] | Robert L. Zimmerman, AUSA, Billings, MT, for Appellee. |
| [8] | Gerald P. La Fountain, LA FOUNTAIN, BEARCANE & LA FOUNTAIN,
Billings, MT; Laura Lee, Esq., Billings, MT and Lowell H. Becraft, Jr.,
Esq., Huntsville, AL, for Appellant. |
| [9] | Author: Thompson |
| [10] | WALLACE and THOMPSON, Circuit Judges, and STEPHENS, Senior District
Judge*fn* |
| [11] | THOMPSON, Circuit Judge: |
| [12] | Leland G. Stahl appeals from his jury trial conviction
of one count of making a false statement on his income tax return, and of
three counts of failing to file income tax returns, in violation of 26
U.S.C. §§ 7206(1) and 7203. Stahl contends that the district
court erred by denying his pretrial motion to dismiss the indictment.
Stahl based his motion to dismiss on the ground that the
sixteenth amendment to the United States Constitution was never properly
ratified, fraud was committed in the ratification process, and the
amendment is therefore void. We reject Stahl's contentions
and affirm. |
| [13] | Stahl argues that the sixteenth amendment was never
ratified by the requisite number of states because of clerical errors in
the ratifying resolutions of the various state legislatures and other
errors in the ratification process.*fn1 He further argues that Secretary of State
Knox committed fraud by certifying the adoption of the amendment despite
these alleged errors. Secretary of State Knox certified that the sixteenth
amendment had been ratified by the legislatures of thirty-eight states,
two more than the thirty-six then required for ratification. His
certification of the adoption of the amendment was made pursuant to
Section 205 of the Revised Statutes of the United States which
provided: |
| [14] | Whenever official notice is received at the Department of State that
any amendment proposed to the Constitution of the United States has been
adopted, according to the provisions of the Constitution, the Secretary of
State shall forthwith cause the amendment to be published in the
newspapers authorized to promulgate the laws, with his certificate,
specifying the States by which the same may have been adopted, and that
the same has become valid, to all intents and purposes, as a part of the
Constitution of the United States. |
| [15] | Act of April 20, 1818, ch. 80, § 2, Rev. Stat. § 205 (2d ed. 1878)
(amended version codified at 5 U.S.C. § 160 (1940) (repealed Oct. 31,
1951); current version, as amended, at 1 U.S.C. § 106b (Supp. II
1984)). |
| [16] | Secretary of State Knox's certification of the adoption of the
sixteenth amendment is conclusive upon the courts. United States v.
Thomas, 788 F.2d 1250, 1253-54 (7th Cir. 1986); see
also Leser v. Garnett, 258 U.S. 130, 137,
66 L. Ed. 505, 42 S. Ct. 217
(1921). In Leser suit was brought to strike the names of two women from
the list of qualified voters in Maryland on the ground that the
constitution of Maryland limited suffrage to men. Maryland had refused to
ratify the Nineteenth Amendment. The necessary minimum of thirty-six
states had ratified the amendment. The Secretary of State of the United
States had certified its adoption. It was contended, however, that the
ratifying resolutions of Tennessee and West Virginia, two of the states
that had ratified the amendment, were inoperative because the resolutions
of those states had been adopted in violation of their rules of
legislative procedure. In answer to that contention the Court
ruled: |
| [17] | 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 thirty-six 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. |
| [18] | Id. at 137. |
| [19] | Stahl attempts to distinguish Leser on the ground that
Leser did not involve a claim of fraud in the ratification process. If
Stahl's challenge to the validity of the ratification
process of the sixteenth amendment is a nonjusticiable, political
question, however, that contention is irrelevant. |
| [20] | In Baker v. Carr, 369 U.S. 186, 7 L.
Ed. 2d 663, 82 S. Ct. 691 (1962), the
Court set out a list of "formulations" which may identify the existence of
a political question in a given case: |
| [21] | It is apparent that several formulations which vary slightly according
to the settings in which the questions arise may describe a political
question, although each has one or more elements which identify it as
essentially a function of the separation of powers. Prominent on the
surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a
coordinate political department; or a lack of judicially discoverable and
manageable standards for resolving it; or the impossibility of deciding
without an initial policy determination of a kind clearly for nonjudicial
discretion; or the impossibility of a court's undertaking independent
resolution without expressing lack of the respect due coordinate branches
of government; or an unusual need for unquestioning adherence to a
political decision already made; or the potentiality of embarrassment from
multifarious pronouncements by various departments on one
question. |
| [22] | Id. at 217. |
| [23] | Stahl's claim that ratification of the sixteenth
amendment was fraudulently certified constitutes a political question
because we could not undertake independent resolution of this issue
"without expressing lack of the respect due coordinate branches of
government." In Field v. Clark, 143 U.S. 649, 36 L. Ed. 294, 12 S. Ct. 495
(1892), the Court encountered a claim that a bill had not in fact been
passed by Congress. The Court held that when a bill has been signed by the
Speaker of the House and by the President of the Senate and has received
the President's approval, "its authentication as a bill that has passed
Congress should be deemed complete and unimpeachable. . . . The respect
due to coequal and independent departments requires the judicial
department . . . to accept, as having passed Congress, all bills
authenticated in the manner stated." Id. at 672. Significantly, the Court
noted the possibility that the Speaker of the House and the President of
the Senate could fraudulently impose on the people a bill that was never
passed by Congress. But "judicial action based upon such a suggestion is
forbidden by the respect due to a coordinate branch of the government."
Id. at 673. |
| [24] | In Leser, the Court, confronting the claim that ratifying resolutions
of two states were inoperative, extended the rule declared in Field to the
Secretary of State's authentication that a constitutional amendment had
been duly ratified. 258 U.S. at 137. Baker indicates
that the application of the political question doctrine in Leser was
demanded by the respect due coordinate branches. Baker, 369 U.S.
at 214. |
| [25] | Stahl's claim falls plainly within the confines of Leser
and Field. Stahl's claim rests on an assertion that the
ratifying resolutions of many states were inoperative. Since the Secretary
of State proclaimed that the sixteenth amendment had been duly ratified,
this assertion presents a political question under Leser.
Stahl's suggestion of fraud on the part of the Secretary
does not render the question justiciable, for "judicial action based upon
such a suggestion is forbidden by the respect due to a coordinate branch
of the government." Field, 143 U.S. at 673. Moreover,
in Baker, the Court in discussing judicial review of the ratification
process characterized the political question doctrine as "a tool for
maintenance of governmental order." Baker, 369 U.S. at 215. Consideration of Stahl's contention, 73
years after certification of the amendment's adoption and after countless
judicial applications, would promote only disorder. See United States v.
Foster, 789 F.2d 457, 462-63 (7th Cir.
1986). |
| [26] | We conclude that the Secretary of State's certification under
authority of Congress that the sixteenth amendment has been ratified by
the requisite number of states and has become part of the Constitution is
conclusive upon the courts.*fn2 |
| [27] | AFFIRMED. |
|
| |
| Opinion Footnotes | |
|
| |
| [28] | *fn1 Stahl directs the court's
attention to the certified copies of the resolutions passed by the
legislatures of the several states that ratified the sixteenth amendment.
Only four of these resolutions quoted the language of the amendment with
absolute accuracy. Thirty-three resolutions contained punctuation,
capitalization, or wording errors. Minnesota did not send a copy of the
resolution passed by its legislature to the Secretary of State. The
secretary of the Governor merely informed the State Department that the
legislature had ratified the proposed amendment. Stahl
alleges that Kentucky's legislature never passed the proposed amendment.
Stahl also alleges discrepancies in the resolution
signatures of South Dakota and Washington, and other procedural errors for
California (no record of the vote in either house), Ohio (not a state at
the time), North Dakota (ratification in the form of a bill, not a
resolution), Arkansas (ratification occurred after previous rejection),
and Arizona. |
| [29] | *fn2 Stahl relies on two district
court cases, Dyer v. Blair, 390 F. Supp. 1291 (N.D.
Ill. 1975) (three-judge court), and Idaho v. Freeman, 529 F.
Supp. 1107 (D. Idaho 1981), vacated as moot mem., 459
U.S. 809, 74 L. Ed. 2d 39, 103
S. Ct. 22 (1982), for the proposition that the matters he seeks
to adjudicate are not barred by the political question doctrine. Neither
case is binding on this court, nor do we find them persuasive under the
facts of this case. |
| [30] | *fn* Honorable Albert Lee Stephens, Jr., Senior
United States District Judge for the Central District of California,
sitting by
designation. |