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AGO 1963 No. 51 - August 29, 1963
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John J. O'Connell | 1957-1968 | Attorney General of Washington


CONSTITUTION ‑- UNITED STATES ‑- AMENDMENT ‑- CONSTITUTIONAL CONVENTION ‑- APPLICATION OF STATE ‑- FORM AND SUBSTANCE OF APPLICATION.

Whether House Joint Memorial No. 1 of the 1963 Washington legislature will be counted along with similar but nonidentical memorials from other states is a question to be decided by the federal congress.  This Memorial proposes an amendment to the United States Constitution eliminating federal judicial review of state legislative apportionment laws in states where the people have the right of initiative.

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                                                                 August 29, 1963

Honorable Andy Hess
State Senator, 31st District
1414 S.W. 158th
Seattle 66, Washington

                                                                                                                Cite as:  AGO 63-64 No. 51

Dear Sir:

            By letter previously acknowledged, you have requested the opinion of this office on a question which we paraphrase as follows:

            Is House Joint Memorial No. 1, 1963 First Extraordinary Legislative Session, a sufficient application to Congress to call a constitutional convention, considering that H.J.M. No. 1 differs in language from many applications of other states on the same subject?

            We respond to your question in the manner set forth in the analysis.

                                                                     ANALYSIS

            House Joint Memorial No. 1, 1963 First Extraordinary Session, reads as follows:

            "TO THE PRESIDENT OF THE SENATE AND SPEAKER OF THE HOUSE OF REPRESENTATIVES, AND TO THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES, IN CONGRESS ASSEMBLED:

            "RESOLVED THAT, We, Your Memorialists, the House of Representatives and Senate of the State of Washington, in legislative session  [[Orig. Op. Page 2]] assembled, respectfully petition that the Congress of the United States call a convention for the purpose of proposing the following articles as an amendment to the Constitution of the United States:

                        "'ARTICLE        

            "'Section 1. No provision of this Constitution, or any amendment thereto, shall restrict or limit any statein which the people have the right of initiative in the apportionment of representation in its legislature.

            "'Section 2. The judicial power of the United States shall not extend to any suit in law or equity, or to any controversy, relating to apportionment of representation in a state legislaturein a state in which the people have the right of initiative.

            "'Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the Legislatures of three‑fourths of the several States within seven years from the date of its submission.'

            "BE IT FURTHER RESOLVED, That if Congress shall have proposed an amendment to the Constitution identical with that contained in this memorial prior to January 1, 1965, this application for a convention shall no longer be of any force or effect.

            "BE IT FURTHER RESOLVED, That copies of this memorial be immediately transmitted by the Secretary of State to the Secretary of the Senate of the United States, the Clerk of the House of Representatives of the United States and to each members of the Congress from this State."  (Emphasis added.)

            This memorial differs from applications of other states in that our legislature added the words which are underlined above.

            The joint memorial appears to be drafted to qualify as an application of the legislature under Article V of the Constitution  [[Orig. Op. Page 3]] of the United States.  That article provides in part:

            "The congress . . . on the application of the legislatures of two-thirds of the several states, shall call a convention for proposing amendments . . ."

            No convention for proposing amendments has ever been called under this provision; all amendments to the United States Constitution have been proposed by Congress under alternate provisions of Article V.  Consequently, no authority for interpreting this provision is available, except for the words of the Constitution itself, and some speculations of academic writers.1/

             In the somewhat analogous area of state ratification of proposed amendments to the United States Constitution, the following principles appear:

            (1) The function of a state legislature in ratifying a proposed amendment to the United States Constitution is a federal function, derived from the United States Constitution.  Leser v. Garnett, 258 U.S. 130, 66 L.Ed. 505 (1922); State ex rel. Mullen v. Howell, 107 Wash. 167, 181 Pac. 920 (1919).

            (2) Questions concerning the amendment process in Article V of the United States Constitution are exclusively federal questions, governed by federal law.  Coleman v. Miller, 83 L.Ed. 1391, 307 U.S. 433, 438 (1939).

            (3) The question of the efficacy of ratifications of proposed amendments to the United States Constitution is a "political question"2/ to be decided by the political branches of the federal government; it is not a question which is appropriate for judicial determination.  Coleman v. Miller, supra, at pp. 449-450.

             [[Orig. Op. Page 4]]

            Reasoning by analogy from the ratification situation, the only answer we can give to your question is that the United States Supreme Court would probably hold that the sufficiency of applications of the legislatures of the states for a constitutional convention is a political question.  In other words, the question of whether or not the additional language in the State of Washington memorial,supra, is sufficient to cause this memorial not to be counted along with the similar but non-identical memorials of other states appears to be a question which the federal congress must ultimately decide.  If the court should take this position, it would decline to interfere with whatever decision congress might make as to the sufficiency of H.J.M. No. 1.

            We hope that the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

MORTON M. TYTLER
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/See, Jameson, Constitutional Conventions, 4th Ed. (1887), and Hoar, Constitutional Conventions (1917).

2/For a review and analysis of the nature of "political questions," which result from our constitutional concept of the separation of powers of the coordinate executive, legislative and judicial branches of government, see Baker v. Carr, 7 L.Ed.2d 663, 369 U.S. 186 at 208-218 (1961).

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