EN BANC

 

 

LEAGUE OF CITIES OF THE                          G.R. No. 176951

PHILIPPINES (LCP) represented

by LCP National President

JERRY P. TREÑAS, CITY OF

ILOILO represented by

MAYOR JERRY P.  TREÑAS,

CITY OF CALBAYOG

represented by MAYOR

MEL SENEN S. SARMIENTO,

and JERRY P.  TREÑAS in his

personal capacity as taxpayer,

                               Petitioners,

 

               - versus -

                            

COMMISSION ON ELECTIONS;

MUNICIPALITY OF BAYBAY,

PROVINCE OF LEYTE;

MUNICIPALITY OF BOGO,

PROVINCE OF CEBU;

MUNICIPALITY OF CATBALOGAN,

PROVINCE OF WESTERN SAMAR;

MUNICIPALITY OF TANDAG,

PROVINCE OF SURIGAO DEL SUR;

MUNICIPALITY OF BORONGAN,

PROVINCE OF EASTERN SAMAR;

and MUNICIPALITY OF TAYABAS,

PROVINCE OF QUEZON,

                                 Respondents.

 

CITY OF TARLAC, CITY OF  SANTIAGO,                   

CITY OF IRIGA, CITY OF LIGAO,

CITY OF LEGAZPI, CITY OF

TAGAYTAY, CITY OF SURIGAO,

CITY OF BAYAWAN, CITY OF

SILAY, CITY OF GENERAL SANTOS,

CITY OF ZAMBOANGA, CITY OF

GINGOOG, CITY OF CAUAYAN,

CITY OF PAGADIAN, CITY OF

SAN CARLOS, CITY OF

SAN FERNANDO, CITY OF

TACURONG, CITY OF TANGUB,

CITY OF OROQUIETA, CITY OF

URDANETA, CITY OF VICTORIAS,

CITY OF CALAPAN, CITY OF

HIMAMAYLAN, CITY OF

BATANGAS, CITY OF BAIS,

CITY OF CADIZ, and                                     

CITY OF TAGUM,

           Petitioners-In-Intervention.                     

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

 

LEAGUE OF CITIES OF THE                          G.R. No. 177499

PHILIPPINES (LCP) represented

by LCP National President

JERRY P. TREÑAS, CITY OF

ILOILO represented by

MAYOR JERRY P.  TREÑAS,

CITY OF CALBAYOG

represented by MAYOR

MEL SENEN S. SARMIENTO,

and JERRY P.  TREÑAS in his

personal capacity as taxpayer,

                               Petitioners,

 

               - versus -

 

COMMISSION ON ELECTIONS;

MUNICIPALITY OF LAMITAN,

PROVINCE OF BASILAN;

MUNICIPALITY OF TABUK,

PROVINCE OF KALINGA;

MUNICIPALITY OF BAYUGAN,

PROVINCE OF AGUSAN DEL SUR;

MUNICIPALITY OF BATAC,

PROVINCE OF ILOCOS NORTE;

MUNICIPALITY OF MATI,

PROVINCE OF DAVAO ORIENTAL;

and MUNICIPALITY OF GUIHULNGAN,

PROVINCE OF NEGROS ORIENTAL,

                                 Respondents.

 

 

 

 

CITY OF TARLAC, CITY OF                        

SANTIAGO, CITY OF IRIGA,

CITY OF LIGAO, CITY OF LEGAZPI,

CITY OF TAGAYTAY, CITY OF SURIGAO,

CITY OF BAYAWAN, CITY OF

SILAY, CITY OF GENERAL SANTOS,

CITY OF ZAMBOANGA, CITY OF

GINGOOG, CITY OF CAUAYAN,

CITY OF PAGADIAN, CITY OF

SAN CARLOS, CITY OF

SAN FERNANDO, CITY OF

TACURONG, CITY OF TANGUB,

CITY OF OROQUIETA, CITY OF

URDANETA, CITY OF VICTORIAS,

CITY OF CALAPAN, CITY OF

HIMAMAYLAN, CITY OF

BATANGAS, CITY OF BAIS,

CITY OF CADIZ, and                  

CITY OF TAGUM,

           Petitioners-In-Intervention.

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LEAGUE OF CITIES OF THE                  G.R. No.  178056

PHILIPPINES (LCP) represented

by LCP National President                          Present:

JERRY P. TREÑAS, CITY OF

ILOILO represented by                               CORONA, C.J.,

MAYOR JERRY P.  TREÑAS,                    CARPIO,

CITY OF CALBAYOG                                CARPIO MORALES,

represented by MAYOR                               VELASCO, JR.,

MEL SENEN S. SARMIENTO,                  NACHURA,

and JERRY P.  TREÑAS in his                   LEONARDO-DE CASTRO,

personal capacity as taxpayer,                     BRION,

                               Petitioners,                      PERALTA,

                                                                        BERSAMIN,

                                                                    DEL CASTILLO,       

                  - versus -                                   ABAD,                               

                                                                       VILLARAMA, JR.,

                                                                       PEREZ,

                                                                        MENDOZA, and

COMMISSION ON ELECTIONS;            SERENO, JJ.      

MUNICIPALITY OF CABADBARAN,        

PROVINCE OF AGUSAN                      

DEL NORTE; MUNICIPALITY            

OF CARCAR, PROVINCE OF             

CEBU; and MUNICIPALITY OF

EL SALVADOR, MISAMIS

ORIENTAL,

                                 Respondents.

 

 

CITY OF TARLAC, CITY OF                        

SANTIAGO, CITY OF IRIGA,

CITY OF LIGAO, CITY OF LEGAZPI,

CITY OF TAGAYTAY, CITY OF SURIGAO,

CITY OF BAYAWAN, CITY OF  SILAY,

CITY OF GENERAL SANTOS,

CITY OF ZAMBOANGA, CITY OF

GINGOOG, CITY OF CAUAYAN,

CITY OF PAGADIAN, CITY OF

SAN CARLOS, CITY OF

SAN FERNANDO, CITY OF

TACURONG, CITY OF TANGUB,

CITY OF OROQUIETA, CITY OF

URDANETA, CITY OF VICTORIAS,

CITY OF CALAPAN, CITY OF

HIMAMAYLAN, CITY OF

BATANGAS, CITY OF BAIS,

CITY OF CADIZ, and                                         Promulgated:

CITY OF TAGUM,

           Petitioners-In-Intervention.                August 24, 2010       

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

 

 

R E S O L U T I O N

 

 

CARPIO, J.:

         For resolution are (1) the ad cautelam motion for reconsideration and  (2) motion to annul the Decision of 21 December 2009 filed by petitioners League of Cities of the Philippines, et al.  and (3) the ad cautelam motion for reconsideration filed by petitioners-in-intervention Batangas City, Santiago City, Legazpi City, Iriga City, Cadiz City, and Oroquieta City.

         On 18 November 2008, the Supreme Court En Banc, by a majority vote, struck down the subject 16 Cityhood Laws for violating Section 10, Article X of the 1987 Constitution and the equal protection clause.  On 31 March 2009, the Supreme Court En Banc, again by a majority vote, denied the respondents’ first motion for reconsideration.  On 28 April 2009, the Supreme Court En Banc, by a split vote, denied the respondents’ second motion for reconsideration. Accordingly, the 18 November 2008 Decision became final and executory and was recorded, in due course, in the Book of Entries of Judgments on 21 May 2009. 

 

         However, after the finality of the 18 November 2008 Decision and without any exceptional and compelling reason, the Court En Banc unprecedentedly reversed the 18 November 2008 Decision by upholding the constitutionality of the Cityhood Laws in the Decision of 21 December 2009.

 

         Upon reexamination, the Court finds the motions for reconsideration meritorious and accordingly reinstates the 18 November 2008 Decision declaring the 16 Cityhood Laws unconstitutional.

 

A.  Violation of Section 10, Article X of the Constitution

         Section 10, Article X of the 1987 Constitution provides:

           No province, city, municipality, or barangay shall be created, divided, merged, abolished or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.  (Emphasis supplied)

 

 

         The Constitution is clear.  The creation of local government units must follow the criteria established in the Local Government Code and not in any other law.  There is only one Local Government Code.[1]  The Constitution requires Congress to stipulate in the Local Government Code all the criteria necessary for the creation of a city, including the conversion of a municipality into a city. Congress cannot write such criteria in any other law, like the Cityhood Laws. 

 

         The clear intent of the Constitution is to insure that the creation of cities and other political units must follow the same uniform, non-discriminatory criteria found solely in the Local Government Code.  Any derogation or deviation from the criteria prescribed in the Local Government Code violates Section 10, Article X of the Constitution.  

 

         RA 9009 amended Section 450 of the Local Government Code to increase the income requirement from P20 million to P100 million for the creation of a city. This took effect on 30 June 2001. Hence, from that moment the Local Government Code required that any municipality desiring to become a city must satisfy the P100 million income requirement.  Section 450 of the Local Government Code, as amended by RA 9009, does not contain any exemption from this income requirement. 

 

         In enacting RA 9009, Congress did not grant any exemption to respondent municipalities, even though their cityhood bills were pending in Congress when Congress passed RA 9009.  The Cityhood Laws, all enacted after the effectivity of RA 9009, explicitly exempt respondent municipalities from the increased income requirement in Section 450 of the Local Government Code, as amended by RA 9009.  Such exemption clearly violates Section 10, Article X of the Constitution and is thus patently unconstitutional.   To be valid, such exemption must be written in the Local Government Code and not in any other law, including the Cityhood Laws.

 

         RA 9009 is not a law different from the Local Government Code.  Section 1 of RA 9009 pertinently provides: “Section 450 of Republic Act No. 7160, otherwise known as the Local Government Code of 1991, is hereby amended to read as follows: x x x.” RA 9009 amended Section 450 of the Local Government Code. RA 9009, by amending Section 450 of the Local Government Code, embodies the new and prevailing Section 450 of the Local Government Code. Considering the Legislature’s primary intent  to curtail “the mad rush of municipalities wanting to be converted into cities,” RA 9009 increased the income requirement for the creation of cities.  To repeat, RA 9009 is not a law different from the Local Government Code, as it expressly amended Section 450 of the Local Government Code.

 

         The language of RA 9009 is plain, simple, and clear. Nothing is unintelligible or ambiguous;  not a single word or phrase admits of two or more meanings.  RA 9009 amended Section 450 of the Local Government Code of 1991 by increasing the income requirement for the creation of cities. There are no exemptions from this income requirement.  Since the law is clear, plain and unambiguous that any municipality desiring to convert into a city must meet the increased income requirement, there is no reason to go beyond the letter of the law.  Moreover, where the law does not make an exemption, the Court should not create one.[2]

 

 

B.  Operative Fact Doctrine

         Under the operative fact doctrine, the law is recognized as unconstitutional but the effects of the unconstitutional law, prior to its declaration of nullity, may be left undisturbed as a matter of equity and fair play. In fact, the invocation of the operative fact doctrine is an admission that the law is unconstitutional.

 

         However, the minority’s novel theory, invoking the operative fact doctrine, is that the enactment of the Cityhood Laws and the functioning of the 16 municipalities as new cities with new sets of officials and employees operate to contitutionalize the unconstitutional Cityhood Laws.  This novel theory misapplies the operative fact doctrine and sets a gravely dangerous precedent.

 

         Under the minority’s novel theory, an unconstitutional law, if already implemented prior to its declaration of unconstitutionality by the Court, can no longer be revoked and its implementation must be continued despite being unconstitutional.  This view will open the floodgates to the wanton enactment of unconstitutional laws and a mad rush for their immediate implementation before the Court can declare them unconstitutional.  This view is an open invitation to serially violate the Constitution, and be quick about it, lest the violation be stopped by the Court. 

 

         The operative fact doctrine is a rule of equity.  As such, it must be applied as an exception to the general rule that an unconstitutional law produces no effects.  It can never be invoked to validate as constitutional an unconstitutional act.  In Planters Products, Inc. v. Fertiphil Corporation,[3] the Court stated:

 

The general rule is that an unconstitutional law is void. It produces no rights, imposes no duties and affords no protection. It has no legal effect. It is, in legal contemplation, inoperative as if it has not been passed. Being void, Fertiphil is not required to pay the levy. All levies paid should be refunded in accordance with the general civil code principle against unjust enrichment. The general rule is supported by Article 7 of the Civil Code, which provides:

ART. 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse or custom or practice to the contrary.

When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern.

            The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity and fair play. It nullifies the effects of an unconstitutional law by recognizing that the existence of a statute prior to a determination of unconstitutionality is an operative fact and may have consequences which cannot always be ignored. The past cannot always be erased by a new judicial declaration.

            The doctrine is applicable when a declaration of unconstitutionality will impose an undue burden on those who have relied on the invalid law. Thus, it was applied to a criminal case when a declaration of unconstitutionality would put the accused in double jeopardy or would put in limbo the acts done by a municipality in reliance upon a law creating it.  (Emphasis supplied)

 

         The operative fact doctrine never validates or constitutionalizes an unconstitutional law. Under the operative fact doctrine, the unconstitutional law remains unconstitutional, but the effects of the unconstitutional law, prior to its judicial declaration of nullity, may be left undisturbed as a matter of equity and fair play.  In short, the operative fact doctrine affects or modifies only the effects of the unconstitutional law, not the unconstitutional law itself.

 

         Thus, applying the operative fact doctrine to the present case, the Cityhood Laws remain unconstitutional because they violate Section 10, Article X of the Constitution.  However, the effects of the implementation of the Cityhood Laws prior to the declaration of their nullity, such as the payment of salaries and supplies by the “new cities” or their issuance of licenses or execution of contracts, may be recognized as valid and effective.  This does not mean that the Cityhood Laws are valid for they remain void.  Only the effects of the implementation of these unconstitutional laws are left undisturbed as a matter of equity and fair play to innocent people who may have relied on the presumed validity of the Cityhood Laws prior to the Court’s declaration of their unconstitutionality.

 

C.  Equal Protection Clause

 

         As the Court held in the 18 November 2008 Decision, there is no substantial distinction between municipalities with pending cityhood bills in the 11th Congress and municipalities that did not have pending bills. The mere pendency of a cityhood bill in the 11th Congress is not a material difference to distinguish one municipality from another for the purpose of the income requirement.  The pendency of a cityhood bill in the 11th Congress does not affect or determine the level of income of a municipality.  Municipalities with pending cityhood bills in the 11th Congress might even have lower annual income than municipalities that did not have pending cityhood bills.  In short, the classification criterion − mere pendency of a cityhood bill in the 11th Congress − is not rationally related to the purpose of the law which is to prevent fiscally non-viable municipalities from converting into cities. 

 

         Moreover, the fact of pendency of a cityhood bill in the 11th Congress limits the exemption to a specific condition existing at the time of passage of RA 9009.  That specific condition will never happen again.  This violates the requirement that a valid classification must not be limited to existing conditions only.   In fact, the minority concedes that “the conditions (pendency of the cityhood bills) adverted to can no longer be repeated.” 

 

         Further, the exemption provision in the Cityhood Laws gives the 16 municipalities a unique advantage based on an arbitrary date −  the filing of their cityhood bills before the end of the 11th Congress – as against all other municipalities that want to convert into cities after the effectivity of RA 9009.

 

         In addition, limiting the exemption only to the 16 municipalities violates the requirement that the classification must apply to all similarly situated. Municipalities with the same income as the 16 respondent municipalities cannot convert into cities, while the 16 respondent municipalities can. Clearly, as worded, the exemption provision found in the Cityhood Laws, even if it were written in Section 450 of the Local Government Code, would still be unconstitutional for violation of the equal protection clause.

 

 

D.  Tie-Vote on a Motion for Reconsideration

        

         Section 7, Rule 56 of the Rules of Court provides:

 

         SEC. 7.  Procedure if opinion is equally divided. – Where the court en banc is equally divided in opinion, or the necessary majority cannot be had, the case shall again be deliberated on, and if after such deliberation no decision is reached, the original action commenced in the court shall be dismissed; in appealed cases, the judgment or order appealed from shall stand affirmed; and on all incidental matters, the petition or motion shall be denied.  (Emphasis supplied)

 

         The En Banc Resolution of 26 January 1999 in A.M. No. 99-1-09-SC, reads:

         A MOTION FOR THE CONSIDERATION OF A DECISION OR RESOLUTION OF THE COURT EN BANC OR OF A DIVISION MAY BE GRANTED UPON A VOTE OF A MAJORITY OF THE MEMBERS OF THE EN BANC OR OF A DIVISION, AS THE CASE MAY BE, WHO ACTUALLY TOOK PART IN THE DELIBERATION OF THE MOTION. 

 

            IF THE VOTING RESULTS IN A TIE, THE MOTION  FOR RECONSIDERATION IS DEEMED DENIED.  (Emphasis supplied)

 

 

         The clear and simple language of the clarificatory en banc Resolution requires no further explanation.  If the voting of the Court en banc results in a tie, the motion for reconsideration is deemed denied.  The Court’s prior majority action on the main decision stands affirmed.[4] This  clarificatory Resolution applies to all cases heard by the Court en banc, which includes not only cases involving the constitutionality of a law, but also, as expressly stated in Section 4(2), Article VIII of the Constitution, “all other cases which under the Rules of Court are required to be heard en banc.”   

 

         The 6-6 tie-vote by the Court en banc on the second motion for reconsideration necessarily resulted in the denial of the second motion for reconsideration. Since the Court was evenly divided, there could be no reversal of the 18 November 2008 Decision, for a tie-vote cannot result in any court order or directive.[5] The judgment stands in full force.[6]  Undeniably, the 6-6 tie-vote did not overrule the prior majority en banc Decision of 18 November 2008, as well as the prior majority en banc Resolution of 31 March 2009 denying reconsideration.  The tie-vote on the second motion for reconsideration is not the same as a tie-vote on the main decision where there is no prior decision. Here, the tie-vote plainly signifies that there is no majority to overturn the prior 18 November 2008 Decision and 31 March 2009 Resolution, and thus the second motion for reconsideration must be denied. 

 

         Further, the tie-vote on the second motion for reconsideration did not mean that the present cases were left undecided because there remain the Decision of 18 November 2008 and the Resolution of 31 March 2009 where a majority of the Court en banc concurred in declaring the unconstitutionality of the sixteen Cityhood Laws.  In short, the 18 November 2008 Decision and the 31 March 2009 Resolution, which were both reached with the concurrence of a majority of the Court en banc, are not reconsidered but stand affirmed.[7]  These prior majority actions of the Court en banc can only be overruled by a new majority vote, not a tie-vote because a tie-vote cannot overrule a prior affirmative action.  

 

         The denial, by a split vote, of the second motion for reconsideration  inevitably rendered the 18 November 2008 Decision final.  In fact, in  its Resolution of 28 April 2009, denying the second motion for reconsideration, the Court en banc reiterated that no further pleadings shall be entertained and stated that entry of judgment be made in due course.

 

         The dissenting opinion stated that “a deadlocked vote of six is not a majority and a non-majority does not constitute a rule with precedential value.”[8] 

 

         Indeed, a tie-vote is a non-majority – a non-majority which cannot overrule a prior affirmative action, that is the 18 November 2008 Decision striking down the Cityhood Laws.  In short, the 18 November 2008 Decision stands affirmed. And assuming a non-majority lacks any precedential value, the 18 November 2008 Decision, which was unreversed as a result of the tie-vote on the respondents’ second motion for reconsideration, nevertheless remains binding on the parties.[9] 

 

 

Conclusion

 

 

         Section 10, Article X of the Constitution expressly provides that “no x x x city shall be created x x x except in accordance with the criteria established in the local government code.”  This provision can only be interpreted in one way, that is, all the criteria for the creation of cities must be embodied exclusively in the Local Government Code. In this case, the Cityhood Laws, which are unmistakably laws other than the Local Government Code, provided an exemption from the increased income requirement for the creation of cities under Section 450 of the Local Government Code, as amended by RA 9009. Clearly, the Cityhood Laws contravene the letter and intent of Section 10, Article X of the Constitution.

 

         Adhering to the explicit prohibition in Section 10, Article X of the Constitution does not cripple Congress’ power to make laws.  In fact, Congress is not prohibited from amending the Local Government Code itself, as what Congress did by enacting RA 9009.  Indisputably, the act of amending laws comprises an  integral part of the Legislature’s law-making power. The unconstitutionality of the Cityhood Laws lies in the fact that Congress provided an exemption contrary to the express language of the Constitution that “[n]o x x x city x x x shall be created except in accordance with the criteria established in the local government code.”  In other words, Congress exceeded and abused its law-making power, rendering the challenged Cityhood Laws void for being violative of the Constitution.

 

         WHEREFORE, we GRANT the motions for reconsideration of the 21 December 2009 Decision and REINSTATE the 18 November 2008 Decision declaring UNCONSTITUTIONAL the Cityhood Laws, namely: Republic Act Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407, 9408, 9409, 9434, 9435, 9436, and 9491.  

 

         We NOTE petitioners’ motion to annul the Decision of 21 December 2009.

 

         SO ORDERED.  

 

 

 

                                                                                                              ANTONIO T. CARPIO

                                                                       Associate Justice

 

 

 

WE CONCUR:

 

 

 

 

RENATO C. CORONA

Chief Justice

 

 

 

 

 

CONCHITA CARPIO MORALES

Associate Justice

 

 

 

 

 

 PRESBITERO J. VELASCO, JR.

Associate Justice

 

 

    ANTONIO EDUARDO B. NACHURA

Associate Justice

 

 

 

 

 

 

         TERESITA J. LEONARDO-

                       DE CASTRO

Associate Justice

 

 

ARTURO D. BRION

Associate Justice

 

 

 

 

 

DIOSDADO M. PERALTA

Associate Justice

 

 

 

LUCAS P. BERSAMIN

Associate Justice

 

 

 

 

                

 

 

 

MARIANO C. DEL CASTILLO

Associate Justice

 

 

 

 

 

 

ROBERTO A. ABAD

Associate Justice

 

 

 

 

 

MARTIN S. VILLARAMA, JR.

Associate Justice

 

            JOSE PORTUGAL PEREZ

Associate Justice

 

 

 

               JOSE C. MENDOZA

Associate Justice

 

 

MARIA LOURDES P. A. SERENO

Associate Justice

 

 

CERTIFICATION

 

         Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

 

 

                                       RENATO C. CORONA

                                                                   Chief Justice

 

 

 

    

 


[1]              Republic Act No. 7160, as amended.

[2]              See Francisco v. Court of Appeals, 313 Phil. 241, 258 (1995).

[3]              G.R. No. 166006, 14 March 2008, 548 SCRA 485, 516-517.

[4]               In Fortich v. Corona, G.R. No. 131457, 19 August 1999, 312 SCRA 751, 766, retired Justice Jose Melo, in his Separate Opinion on the motion for reconsideration, stated that “in our own Court En Banc, if the voting is evenly split, on a 7-7 vote, one (1) slot vacant, or with one (1) justice inhibiting or disqualifying himself, the motion (for reconsideration) shall, of course, not be carried because that is the end of the line.” (Emphasis supplied)

[5]              Michael Coenen, Original Jurisdiction Deadlocks, Yale Law Journal, March, 2009, 118 Yale L.J.              1003, citing Durant v. Essex Co., 74 U.S. (7 Wall.) 107, 112 (1868).

[6]              Id.

[7]              In Defensor-Santiago v. COMELEC, G.R. No. 127325,  the Court, by a vote of 6-6 with one (1)   justice inhibiting himself and another justice refusing to rule on the ground that the issue was            not ripe for adjudication, denied the motion for reconsideration.  The                 case of Lambino v.             COMELEC,  G.R. Nos. 174153        and  174299,  cited  Defensor-Santiago v. COMELEC.

[8]              See Chief Justice Puno’s separate opinion in Lambino v. COMELEC, G.R. Nos. 174153 and          174299, 25 October 2006, 505 SCRA 160.

[9]              See Recusals and the “Problem” of an Equally Divided Supreme Court by Ryan Black and Lee  Epstein, (http://epstein.law.northwestern.edu/research/recusal.pdf), citing Durant, 74 U.S. at 109;               Egger, (Student Author, Court of Appeals Review of Agency Action:  The Problem of En Banc Ties,        100 Yale L.J. 471 [1990]); Reynolds & Young, Equal Divisions in the Supreme Court:  History,  Problems and Proposals, 62 N.C. L. Rev. 29, 31 (1983).