lenge. See Babbitt v. United Farmworkers, 442 U.S. 289, 298-99 (1979) (and authorities cited therein).

A concrete case or controversy exists, therefore, about this statute's validity, and this case is presently ripe for judicial resolution. IT IS ORDERED, therefore, that the prior order of dismissal entered on March 11, 1980 is hereby vacated. Plaintiffs shall now submit a supplemental memorandum, if appropriate, to their previously filed motion for summary judgment, on or before Monday. July 13, 1981. Defendants shall then file their memorandum in response on or before Wednesday, July 22, 1981. Plaintiffs may then file a reply brief on or before Monday, July 27, 1981. Oral argument shall be conducted on Monday, August 3, 1981 at 10:00 a.m. in Courtroom 12 of the United States Courthouse.

IT IS FURTHER ORDERED that pursuant to the Court of Appeals April 30, 1981 order, the parties may move to dismiss the presently pending appeal without prejudice on or before Friday, June 26, 1981.

The Clerk shall serve copies of this Order on counsel for plaintiffs and counsel for defendant in this action. Dated: June 17, 1981.

MALCOLM M. LUCAS, United States District Judge.

UNITED STATES DISTRICT COURT, D. IDAHO.

JAMES A. MCCLURE, UNITED STATES SENATOR, IDAHO, PLAINTIFF,

V.

JAMES EARL CARTER, PRESIDENT OF THE UNITED STATES; and Abner J. MIKVA, DEFENDANTS.

Civ. No. 79-1340.

May 5, 1981.

[265] United States senator brought action challenging appointment of former congressman to position as circuit judge for United States Court of Appeals for the District of Columbia Circuit. The three-judge district court held that despite statute purporting to allow any member of Congress to challenge appointment of any judge to the Court of Appeals for the District of Columbia made during the 96th Congress provided that the challenge was based on the ineligibility clause of the Constitution, senator did not have standing to bring the suit, which alleged that appointment was unconstitutional because the congressman appointed to the seat on the Court of Appeals for the District of Columbia had been serving in Congress at the time that the salary for the judgeship was increased.

Dismissed.

1. Federal Civil Procedure — 103

Article III of the Constitution requires that parties to a lawsuit have such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions. U.S.C.A. Const. Art. 3, § 2.

Despite statute purporting to allow any member of Congress to challenge the appointment of any judge to the Court of Appeals for the District of Columbia made during the 96th Congress provided that the challenge was based on the ineligibility clause of the Constitution, United States senator did not have standing, either in his individual or official capacity, to challenge propriety of appointment to seat on United States Court of Appeals for the District of Columbia of a United States congressman who was serving in Congress at the time that the salary for the judgeship was increased. 5 U.S.C.A. § 5318 note; U.S.C.A. Const. Art. 1, § 6, cl. 2; Art. 3, § 2. 3. Federal Civil Procedure

103

In some circumstances, a legislator has standing to sue as a legislator when he or she would not have standing as an individual; touchstone is whether legislator's interest in maintaining the effectiveness of his votes is sufficient to confer standing to challenge an action impairing that effectiveness.

Iver J. Longeteig, Runft & Longeteig, Chartered, Boise, Idaho, David H. Martin, Santarelli & Gimer, Washington, D.C., for plaintiff.

Neil H. Koslowe, Sp. Litigation Counsel, Civil Division, Dept. of Justice, Washington, D.C., for defendants.

Before FLETCHER, Circuit Judge, and NCNICHOLS and TAYLOR, District Judges, sitting as a Special Three-Judge District Court.

DECISION

[266] This case comes before this three-judge court on cross-motions for summary judgment. The amended complaint to which the motions are addressed challenges the appointment of former Congressman Abner J. Mikva to a position as a circuit judge for the United States Court of Appeals for the District of Columbia Circuit. The relevant portions of the statute under which the challenge is brought, Act of October 12, 1979, Pub.L.No. 96-86, § 101(c), 93 Stat. 656 (not codified), are set out in the margin.1 The plaintiff, Senator McClure, asserting that the salaries of federal judges were increased during defendant Mikva's term in Congress, claims that Judge Mikva's 2 nomination, confirmation, and appointment as a circuit judge were in violation of Article I, section 6, clause 2 of the United States Constitution (the Ineligibility Clause).3

BACKGROUND

3

The procedural posture of this case and the events in its background provide a context that is helpful in analyzing and attaching appropriate legal significance to the contentions made by the parties. The procedural steps taken and a summary of pertinent portions of the pleadings are set forth in the margin.*

1 Section 101(c) provides in relevant part: "Any additional payment [to federal officials] under existing law is not to be construed as an increase in salary or emoluments within the meaning of Article I, section 6, clause 2 of the Constitution, except that:

"(1) Any Member of Congress, whether he voted to confirm or not to confirm the appointment of any judge appointed during the 96th Congress to the United States Court of Appeals for the District of Columbia, or whether he abstained from, or was not present for such vote, may bring a civil action in the United States District Court for the District of Columbia or in any United States District Court in the State he represents to contest the constitutionality of the appointment and continuance in office of said Circuit Judge on the ground that such appointment and continuance in office is in violation of Article I, section 6, clause 2 of the Constitution; "(2) The designated United States District Courts shall have exclusive jurisdiction, without regard to the sum or value of the matter in controversy, to determine the validity of such appointment and continuance in office;

'(3) Any action brought under this section shall be heard and determined by a panel of three judges in accordance with the provisions of section 2284 of title 28, United States Code. Any appeal from the action of a court convened pursuant to such section shall lie to the Supreme Court; and

"(4) Any judge designated to hear any action brought under this section shall cause such action to be in every way expedited.'

2 While plaintiff insists on referring to defendant Mikva as "Mr.," his proper title is "Judge" until determined otherwise.

3 Article I, section 6, clause 2 of the United States Constitution provides in relevant part: "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time;

4 The original complaint was filed in the United States District Court for the District of Idaho on September 25, 1979, by plaintiff McClure, a United States Senator from the State of Idaho. Jurisdiction was alleged under 28 U.S.C. §§ 1331 (federal question) and 2201 (declaratory judgment). The original defendants were James Earl Carter, President of the United States, and J. Stanley Kimmitt, Secretary of the United States Senate. The complaint sought a declaration

Continued

Senator McClure asks that we direct the President to notify defendant Mikva that his appointment was in violation of the Constitution, and that we notify defendant Mikva that his appointment was void ab initio and that he must vacate his office. The threshold question before us is whether we have jurisdiction to hear the case. We cannot reach the merits of Senator McClure's challenge unless we answer that question affirmatively.

[267] Congressman Abner J. Mikva was nominated by President Carter as circuit judge for the District of Columbia Circuit. A number of senators, including Senator McClure, opposed the appointment. Indeed, a number of these senators, again including Senator McClure, voiced their opposition on the Senate floor, 5 relying in their arguments on their belief that then Congressman Mikva was philosophically unsuited to the job, as well as on their view that he was constitutionally ineligible for appointment because of the proscriptions of the Ineligibility Clause. These arguments failed to persuade a sufficient number of their fellow senators, and a majority of the Senate voted to confirm defendant Mikva as judge on September 25, 1979. 125 Cong. Rec. S13363 (daily ed. Sept. 25, 1979).

After the Senate voted to confirm Judge Mikva, Senator McClure and others proposed to the Senate the jurisdictional statute under which Senator McClure now sues. The Senate attached the proposed statute as a rider to an appropriation bill on October 10, 1979, 125 Cong.Rec. S14320, S14325 (daily ed. Oct. 10, 1979), and the House of Representatives agreed to it two days later. Id. H9081 (daily ed. Oct. 12, 1979).

that then-Congressman Abner J. Mikva was constitutionally ineligible for appointment to the United States Court of Appeals for the District of Columbia Circuit. The suit also sought an injunction against defendant Kimmitt to prevent him from communicating the results of the United States Senate's vote of confirmation of Abner Mikva to the President.

On September 26, 1979, defendant Carter signed the commission appointing Abner J. Mikva a United States Ciruit Judge for the District of Columbia Circuit. On October 16, 1979, the plaintiff moved to dismiss defendant Kimmitt. The motion was granted.

The amended complaint was filed on November 6, 1979, once more naming President Carter as a defendant and adding Abner J. Mikva as a defendant. Jurisdiction was again premised on 28 U.S.C. §§ 1331 and 2201 but was additionally alleged under section 101(c) of the Act of October 12, 1979, Pub.L. No. 96-86, 93 Stat. 657 (not codified). Plaintiff requested a three-judge court pursuant to the terms of section 101(c). The amended complaint requested the relief described in the text of the opinion.

The defendant President answered the amended complaint and requested that the action be dismissed. Defendant Mikva moved to be dismissed as defendant based on his allegation that the court lacked personal jurisdiction over him.

On December 13, 1979, the district judge originally assigned to the case sent to the Honorable James R. Browning, Chief Judge of the United States Court of Appeals for the Ninth Circuit, a Notification and Certificate that a three-judge district court should be convened. On December 21, 1979, the President moved for withdrawal of the Notification and Certificate. The motion was denied and on February 4, 1980, Chief Judge Browning designated a three-judge district court.

On February 25, 1980, the two defendants moved for summary judgment, with defendant Mikva expressly reserving his defense that the court lacked personal jurisdiction over him. The plaintiff responded on March 28, 1980, by opposing the defendants' motions and himself moving for summary judgment. Oral argument was heard on June 26, 1980. The court ruled from the bench that it was properly convened as a three-judge court.

5 The constitutional question and the more general question of Judge Mikva's qualifications and fitness for judicial office were extensively debated on the floor of the Senate, 125 Cong. Rec. S13362 (daily ed. Sept. 25, 1979). During the debate, Senator Edward Kennedy introduced two detailed legal memoranda prepared by the Justice Department on the constitutional question, so that the senators would be fully informed. Id. at S13360-S13362. Senator McClure made a speech attacking Congressman Mikva's political and social views and advised his colleagues that he would oppose the nomination specifically on that basis, urging them to do the same. Id. at S13351-S13353.

The jurisdictional statute is unusual in several respects. First, it sets out a single substantive ground for challenging a new judicial appointment-violation of the Ineligibility Clause. A challenge to a judicial appointment on any other ground must be brought under some other statute. Second, it limits both in time and by institution the judicial appointments that may be challenged under the statute. It authorizes challenges to only those judicial appointments made during the 96th Congress and only those made to the United States Court of Appeals for the District of Columbia Circuit. A challenge to a judge appointed during any other Congress or to any other court must be brought under some other statute. Perhaps not coincidentally, the only judicial appointment that fits within the statute's limitations and might be subject to challenge on Ineligibility Clause grounds is that of defendant Mikva. Third, the statute authorizes suits by United States senators and members of the House of Representatives, irrespective of whether the senators voted for or against the appointment or, in the case of members of the House, voted at all. Fourth, the statute [268] provides that suit may be brought either in the United States District Court for the District of Columbia or in any federal district court in the state which the senator or member of the House represents, irrespective of the distance between that state and the District of Columbia and irrespective of any connection between that state and the judicial appointment sought to be challenged.

In short, what the statute appears to authorize is a mechanism whereby a senator or member of the House of Representatives may challenge in a federal court in his or her home state the validity of the judicial appointment of a single person, Judge Mikva. Such a statute has, at one level, an entirely salutory purpose, for it would be antithetical to the rule of law that all government officials, and judges in particular, are pledged to uphold if a federal judge were permitted to take office in violation of the express terms of the United States Constitution. The statute is, however, problematic at quite another level, for under article III of the Constitution federal courts may decide only cases and controversies properly brought before them, by parties with sufficient stake in the dispute to ensure that a decision by the courts is not inconsistent with the limited role the courts must play within our tripartite federal system of government. The fact that the statute makes senators and members of the House, and no others, "enforcers" of the Constitution in the judicial forum implicates special concerns regarding the separation of powers.

JUSTICIABILITY

The federal courts have consistently exercised care to limit their jurisdiction to the case and controversy requirement of article 111. This governing principle is more easily stated than applied, however, since comprehended within the limitations imposed by the terms "cases" and "controversies" are concerns about the proper functioning of courts in dispute resolution and the allocation of power among the three branches of government.