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792 F.2d 1438
UNITED STATES of America, Plaintiff-Appellee,
Leland G. STAHL, Defendant-Appellant.
United States Court of Appeals,
Argued and Submitted Feb. 12, 1986.
Decided June 30, 1986.
Robert L. Zimmerman, Asst. U.S. Atty., Billings, Mont., for plaintiff-appellee.
Gerald P. La Fountain, La Fountain, Bearcane & La Fountain, Laura
Lee, Billings, Mont., and Lowell H. Becraft, Jr., Huntsville, Ala., for defendant-
Appeal from the United States District Court for the District of Montana.
Before WALLACE and THOMPSON, Circuit Judges, and STEPHENS, Senior
District Judge [FN*]
FN* Honorable Albert Lee Stephens, Jr., Senior United States
District Judge for the Central District of California, sitting by designation.
THOMPSON, Circuit Judge:
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. ss 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.
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:
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.
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. Act of April 20, 1818,
ch. 80, s 2, Rev.Stat. s 205 (2d ed. 1878) (amended version codified at 5 U.S.C.
s 160 (1940) (repealed Oct. 31, 1951); current version, as amended, at 1 U.S.C.
s 106b (Supp. II 1984) ).
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, 42 S.Ct. 217,
218, 66 L.Ed. 505 (1922). 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: 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.
Id. at 137, 42 S.Ct. at 218.
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.
In Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), the Court
set out a list of "formulations" which may identify the existence
of a political question in a given case: 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. Id.
at 217, 82 S.Ct. at 710.
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." Id. In Field v. Clark, 143 U.S. 649, 12 S.Ct.
495, 36 L.Ed. 294 (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, 12 S.Ct. at 497. 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 "[j]udicial
action based upon such a suggestion is forbidden by the respect due to a coordinate
branch of the government." Id. at 673, 12 S.Ct. at 498.
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, 42 S.Ct. at 218. 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, 82 S.Ct. at 708-09.
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 "[j]udicial 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, 12 S.Ct. at 498. 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, 82 S.Ct. at 709. 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).
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. 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, 103 S.Ct. 22, 74
L.Ed.2d 39 (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.
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