Nolan v. Rhodes

• Decision Date: 12 June 1963
• Docket Number: Civ. A. No. 6082,6491.
• Parties: James D. NOLAN, Plaintiff, v. James A. RHODES, Governor of Ohio, et al., Defendants. Leonard M. SIVE et al., Plaintiffs, v. Harry ELLIS et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

218 F. Supp. 953

James D. NOLAN, Plaintiff, v. James A. RHODES, Governor of Ohio, et al., Defendants.

Leonard M. SIVE et al., Plaintiffs, v. Harry ELLIS et al., Defendants.

Civ. A. Nos. 6082, 6491.

United States District Court S. D. Ohio, E. D.

June 12, 1963.

Kenneth G. Weinberg, Cleveland, Ohio, Stewart R. Jaffy, Columbus, Ohio, for plaintiff James D. Nolan.

Jerome Goldman, Paul H. Tobias, Cincinnati, Ohio, for plaintiffs Leonard M. Sive and others; William T. Bahlman, Jr., Robert P. Goldman, Bruce I. Petrie, Charles H. Tobias, Jr., Harris K. Weston, Cincinnati, Ohio, of counsel.

Hugh A. Sherer, William E. Knepper, Sp. Counsel, Columbus, Ohio, for defendants James A. Rhodes and others.

Hugh A. Sherer, William E. Knepper, John J. Chester, Sp. Counsel, Columbus, Ohio, for defendants Harry Ellis and others.

Gerald A. Donahue, Sp. Counsel, Columbus, Ohio, for defendants County Boards of Elections and individual members thereof in Adams, Brown and Highland Counties.

George Schilling, Jr., Pros. Atty. of Clinton County, Wilmington, Ohio, for Defendant Clinton County Board of Elections and individual members thereof.

Before WEICK, Circuit Judge, and WEINMAN and PECK, District Judges.

WEICK, Circuit Judge.

These two actions were consolidated for hearing because each one questions the validity of the apportionment of Ohio's House of Representatives and seeks an adjudication that the last sentence in Article XI § 2 of the Constitution of Ohio be declared unconstitutional and void in violation of the Fourteenth Amendment to the Constitution of the United States. This sentence in the Ohio Constitution reads: "Provided, however, that each county shall have one representative." Since the actions involved the constitutionality of state law, the Chief Judge of the Circuit constituted this three-judge court to hear them pursuant to Title 28 U.S.C. §§ 2281 and 2284.

The plaintiff in the Nolan case is a resident of Cuyahoga County which contains the largest population in the State. He is a qualified and registered voter in the State and County and a taxpayer. He brings the action in his own behalf and on behalf of all others similarly situated.

The plaintiffs in the Sive case are residents, electors and taxpayers of Hamilton County, which is next largest in population and they likewise sue as a class.

The defendants in Nolan are the Governor, Auditor and the Secretary of the State of Ohio. Under Article XI § 11 of the Ohio Constitution they are charged with the duty of ascertaining the ratio of representation, according to the decennial census, of the number of representatives and senators each county or district shall be entitled to elect to the General Assembly within the next ten years. In Sive certain election officials are named as additional defendants.

A stipulation of facts was agreed to by the parties and is adopted as findings of fact. Trial briefs were filed. The consolidated cases were argued orally. The arguments were transcribed and briefs on the merits were filed. The entire subject has been treated exhaustively by able counsel.

THE ELEVENTH AMENDMENT DOES NOT BAR THE BRINGING OF THESE ACTIONS.

At the threshold, we are met with the contention of the defendants that these actions in reality are suits against the State of Ohio which affect its form of government and that the Eleventh Amendment to the Constitution of the United States does not extend the judicial power to a suit against a state. They cite: Ford Motor Co. v. Department of Treasury, State of Indiana, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389; Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842; Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628.

The present actions, however, were brought under the Civil Rights Act (28 U.S.C. § 1343) against the individual officers of the State to enjoin the commission by them of acts alleged to be in violation of the Constitution of the United States. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 is implicit that the actions are maintainable. See also: Peterson v. City of Greenville, 373 U.S. 244, 83 S.Ct. 1119, 10 L.Ed.2d 323 (1963); Georgia R. R. & Banking Co. v. Redwine, 342 U.S. 299, 72 S.Ct. 321, 96 L.Ed. 335. It makes no difference whether a state constitution rather than a statute is involved. Standard Computing Scale Co. v. Farrell, 249 U.S. 571, 39 S.Ct. 380, 63 L.Ed. 780.

OHIO'S LEGISLATIVE SYSTEM.

Ohio has a bicameral legislature following the federal pattern and consisting of a Senate and House of Representatives. The 105th General Assembly has 137 members of the House elected biennially by the electors of the respective counties for terms of two years. The Senate consists of 33 Senators elected by the electors of the respective senatorial districts on a staggered basis for terms of four years.

There are 88 counties in the State and 35 Senatorial Districts. The State has a population of 9,706,397 according to the census taken in 1960.

Apportionment of the General Assembly is provided for by Article XI of the Ohio Constitution. In substance, the Senate is apportioned by population and the House by area and population. The entire population of the state is divided by the number of 100 to determine the ratio of representation in the House for the next ten years. Every county having a population equal to one-half of such ratio shall be entitled to one representative. Counties having a population in excess of one ratio are entitled to a proportional number of representatives. Prior to November 3, 1903 if a county entitled to separate representation had a decrease in population below the one-half ratio, it had representation by being attached to the adjoining county having the least number of inhabitants. Because of the Amendment of November 3, 1903 each county was guaranteed one representative.

The Constitution does not limit the number of representatives a county may gain by increase of its population in relation to the state's total population. Article XI § 3.

The apportionment of the Ohio Senate is based as nearly as practicable upon population.

The enactment of any law in Ohio requires a majority vote of both Senate and House and may be vetoed by the Governor who is elected by the electors of the state. The veto can be overridden by a three-fifth's vote in both houses.

Laws may be initiated by petition and submitted to a vote by the electors of the state. Article II and 1 Ohio Constitution. All laws except those providing for tax levies, appropriations for current expenses and emergency measures are subject to a referendum by the electors of the state. Article II § 1c Ohio Constitution.

The Constitution of Ohio can be amended only by a majority vote of the electors of the state voting on the proposal to amend. Article XVI §§ 1 & 3, Article II § 1b Ohio Constitution. Proposals to amend may be submitted by initiative petition (Article II § 1a Ohio Constitution) or by joint resolution of the General Assembly. Article XVI § 1 Ohio Constitution.

Each twenty years there is submitted to the electors of the state the question whether a constitutional convention shall be called. Article XVI § 3 Ohio Constitution. The issue was last so submitted in 1952.

It is readily apparent from this review of Ohio's substantially different and perhaps unique governmental machinery that the factual situation here existing differs from that which has been before other courts considering apportionment problems.

DOES OHIO'S SYSTEM OF APPORTIONMENT OF ITS HOUSE OF REPRESENTATIVES DISCRIMINATE INVIDIOUSLY AGAINST PLAINTIFFS?

Plaintiffs contend that both houses in Ohio must be apportioned in accordance with population and any substantial deviation therefrom in either house results in an invidious discrimination against them in violation of the Equal Protection Clause of the Federal Constitution. They do not seriously argue that the Amendment was unconstitutional at the time it was adopted in 1903.¹ They contend, rather, that it has since become unconstitutional because of shifts in Ohio's population from rural to urban areas of the state and other changes in conditions.

It should be pointed out that Ohio's apportionment was not adopted by the state legislature, but by the people of the state in their Constitution. The Amendment to the Constitution under attack here was adopted in 1903 by an overwhelming majority of the electors of the state, i. e., 98% for and 2% against and has been in effect for nearly sixty years.

It was conceded that the apportionments made by the Governor, Auditor and Secretary of the State each ten years since the Constitution of 1861 was adopted have been in conformity with the provisions of the Constitution of Ohio. Plaintiffs' only complaint is that Ohio's Constitution guarantees to each county one representative in the House and that that constitutes invidious discrimination against them.

No question has been raised in these cases concerning the apportionment of Ohio's Senate, which is by population of the senatorial districts. Defendants assert that the urban centers have overwhelming control of the state Senate. They have computed figures from the stipulated facts (Exhibit P) which indicate that the electors of the senatorial districts in which the seventeen most populous counties of the state are included are represented in the 105th General Assembly by 26 senators or 78.7% of the 33 members of the senate. These 17 counties, they say, contain 68.6% of the total population of the state. Defendants further claim that in the 105th General Assembly the electors of the senatorial districts in which the eight most populous counties are included are represented by 20 senators or 60.6% of the whole senate. These 8 most populous counties contain 54.9% of the state's total population. Plaintiffs in their brief point out that the senatorial districts containing the 17 largest counties contain a total of 45 counties and 79% of...