Lein v. Sathre, Civ. No. 424.

• Citation: 201 F. Supp. 535
• Decision Date: 29 January 1962
• Docket Number: Civ. No. 424.
• Parties: Ray LEIN, John Hove, John M. Murphy, Walter Durkop, and Russell Duncan, Plaintiffs, v. P. O. SATHRE, Leslie R. Burgum, Ben Meier, Ben Wolfe and Arthur Link, and Ben Meier, Secretary of State for the State of North Dakota, Defendants.
• Court: U.S. District Court — District of South Dakota

201 F. Supp. 535

Ray LEIN, John Hove, John M. Murphy, Walter Durkop, and Russell Duncan, Plaintiffs, v. P. O. SATHRE, Leslie R. Burgum, Ben Meier, Ben Wolfe and Arthur Link, and Ben Meier, Secretary of State for the State of North Dakota, Defendants.

Civ. No. 424.

United States District Court D. North Dakota, Southwestern Division.

January 29, 1962.

E. T. Conmy and E. T. Conmy, Jr., of Conmy, Conmy & Feste, Fargo, N. D., for plaintiffs.

William R. Pearce, of Cox, Pearce, Engebretson, Murray, Atkinson & Gunness, Bismarck, N. D., as Special Asst. Atty. Gen., and Paul M. Sand, Asst. Atty. Gen., for defendants.

Before VOGEL, Circuit Judge, and REGISTER, Chief Judge, and DAVIES, District Judge.

PER CURIAM.

Plaintiffs are citizens of the United States and of the State of North Dakota, are registered and qualified voters in said state and are entitled to vote for members of the state legislature in their respective senatorial districts. Defendants are all citizens of the United States and of the State of North Dakota. P. O. Sathre is Chief Justice of the Supreme Court; Leslie R. Burgum is Attorney General; Ben Meier is Secretary of State; and Ben Wolfe and Arthur Link are, respectively, majority and minority leaders of the House of Representatives of the State of North Dakota.

The electors of this state on June 28, 1960, at the primary election held on that day, adopted amendments to certain sections of the North Dakota Constitution. Section 35 of said Constitution was amended to read as follows:

"Section 35. Each senatorial district shall be represented in the House of Representatives by at least one representative except that any senatorial district comprised of more than one county shall be represented in the House of Representatives by at least as many representatives as there are counties in such senatorial district. In addition the Legislative Assembly shall, at the first regular session after each federal decennial census, proceed to apportion the balance of the members of the House of Representatives to be elected from the several senatorial districts, within the limits prescribed by this Constitution, according to the population of the several senatorial districts. If any Legislative Assembly whose duty it is to make an apportionment shall fail to make the same as herein provided it shall be the duty of the chief justice of the supreme court, attorney general, secretary of state, and the majority and minority leaders of the House of Representatives within ninety days after the adjournment of the legislature to make such apportionment and when so made a proclamation shall be issued by the chief justice announcing such apportionment which shall have the same force and effect as though made by the Legislative Assembly."

Under Section 35, the Legislative Assembly of the State of North Dakota was directed to apportion the balance of the members of the House of Representatives after each federal decennial census. The Thirty-Seventh Session of the Legislative Assembly which met in 1961, and which was the first regular session following the federal census of 1960, failed to make the apportionment provided by Section 35; it thereupon became the duty of the "apportionment group" consisting of the defendants herein named to make the apportionment provided by said Section 35. The members of the apportionment group met and on May 8, 1961, adopted an apportionment plan for the House of Representatives. On May 29 (the 89th day following adjournment of the Legislative Assembly) the Chief Justice issued a proclamation announcing the apportionment plan and filed such proclamation with the Secretary of State. Under this plan the allotment of an additional representative to each district was determined upon the basis of population brackets and the practical application of such plan will allegedly result in a substantial inequality in the effectiveness of the voting strength of individual voters in the various districts.

Shortly after the adoption of the plan on May 8, and a substantial period of time prior to the expiration of the 90th day following adjournment of the legislature, an action was commenced in the North Dakota Supreme Court, entitled State of North Dakota ex rel. Aamoth, Petitioner v. P. O. Sathre (Leslie R. Burgum, Ben Meier, Ben Wolfe, and Arthur Link, Respondents), in which the petitioners asked the Supreme Court for a prerogative writ enjoining the Chief Justice from issuing a proclamation as provided for in Section 35, and in effect requested that Court to review the apportionment plan then adopted and declare it unconstitutional, and to direct the respondents therein by writ of mandamus to make an apportionment of the members of the House of Representatives according to the population of the several senatorial districts of this state, as required by Section 35. The Supreme Court determined that said petition was premature, as the action of the apportionment group was at that time incomplete, and refused to grant the relief asked for. A minute order of the Supreme Court dismissing said petition was issued accordingly on May 24, 1961, and the formal opinion of the Court (reported at 110 N.W.2d 228) was dated August 8, 1961.

The plaintiffs herein contend that this Court has original jurisdiction of this action and that they have the right to bring this suit under the Civil Rights Act, 42 U.S.C.A. §§ 1983 and 1988, which provide as follows:

"§ 1983. Civil action for deprivation of rights. Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

"§ 1988. Proceedings in vindication of civil rights. The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this chapter and Title 18, for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty."

Plaintiffs contend further that this Court has jurisdiction under the provisions of 28 U.S.C.A. § 1343(3) and (4), which section provides as follows:

"§ 1343. Civil rights and elective franchise.

"The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:

* * * * * *

"(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States;

"(4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote."

By their complaint plaintiffs ask this Court to declare that the apportionment made and proclaimed "abridges and decimates plaintiffs' privileges as citizens, deprives them of liberty without due process of law, denies them equal protection of the law and in a substantial measure disenfranchises them, all contrary to and in violation of the constitutions of the United States of America and the State of North Dakota." Plaintiffs further ask this Court to restrain the defendant Ben Meier, as Secretary of State, "from giving notice of state elections, furnishing forms for nominations, receiving filings of candidates, preparing ballots and instructions, certifying of nominations or elections and from doing any other act necessary to the holding of elections for members of the House of Representatives of the North Dakota State Legislature until such time as reapportionment is made in accordance with the Constitution."

The defendants in effect deny that a justiciable controversy is present, that a violation of the Civil Rights Act or of the Constitution of the United States exists, and that this Court has jurisdiction. Defendants contend that the question involved is political in nature and that the alleged right of equality of voting strength is not one guaranteed by the Constitution of the United States or by the Fourteenth Amendment thereof.

The action is now before this Court on the following motions:

a. Plaintiff's Motion for Summary Judgment.

b. Defendant's alternative Motion to Dismiss or for Summary Judgment.

Following oral arguments heard on January 11, 1962, said motions were taken under advisement by this Court.

Plaintiffs assert certain portions of Section 35 are subject to attack as being invalid. They assert that portion which provides for a representative for each county in each senatorial district comprised of two or more counties, regardless of population, distributes political power unequally and is clearly invalid; they assert that portion which imposes legislative duties upon the Chief Justice of the Supreme Court is illegal and void for the reason that it is contrary to Section 96 of the North Dakota Constitution, which reads...