Connor v. Johnson

• Decision Date: 22 July 1966
• Docket Number: Civ. A. No. 3830.
• Parties: Peggy J. CONNOR et al., Plaintiffs, v. Paul B. JOHNSON et al., Defendants.
• Court: U.S. District Court — Southern District of Mississippi

256 F. Supp. 962

Peggy J. CONNOR et al., Plaintiffs, v. Paul B. JOHNSON et al., Defendants.

Civ. A. No. 3830.

United States District Court S. D. Mississippi, Jackson Division.

July 22, 1966.

Peter Marcuse, Waterbury, Conn., Kunstler, Kunstler & Kinoy, William M. Kunstler and Arthur Kinoy, New York City, Smith, Waltzer, Jones & Peebles, Benjamin Smith, Bruce C. Waltzer, New Orleans, La., Morton Stavis, Newark, N. J., Carl Rachlin, Melvin L. Wulf, A.C. L.U., New York City, Alvin Bronstein, R. Jess Brown, Jackson, Miss., for plaintiffs.

Joe T. Patterson, Atty. Gen., Martin R. McLendon, Asst. Atty. Gen., Jackson, Miss., for defendants.

Before COLEMAN, Circuit Judge, and COX and RUSSELL, District Judges.

PER CURIAM:

The suit was filed October 19, 1965. The plaintiffs are adult, resident citizens and qualified electors of the State of Mississippi. The defendants are the three Members of the State Board of Election Commissioners, the Speaker of the State House of Representatives, and the President Pro Tempore of the State Senate.

Upon appropriate supporting factual allegations, the plaintiffs seek the reapportionment of the Mississippi Legislature in keeping with the principles enunciated in Baker v. Carr, and likewise seek to have the five Congressional Districts of the State of Mississippi rearranged by counties so that (quoting from the complaint) "Each of the Congressional Districts should contain 435,628 persons to be apportioned on a strict population basis".

The Court has jurisdiction of the subject matter and to hear and determine this case, Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663. See also Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506; Scott v. Germano, 381 U.S. 407, 85 S.Ct. 1525, 14 L.Ed.2d 477; Toombs v. Fortson, D.C., 241 F.Supp. 65; Fourteenth Amendment, Equal Protection Clause; 28 U.S.C.A. § 2281 et seq. including 28 U.S.C.A. Section 1343. In this opinion we deal only with the question of legislative reapportionment. The parties have not yet completed their proof on the matter of Congressional Redistricting. This, when ready, will be the subject of a separate opinion.

Baker v. Carr, supra, held: (1) That the district courts possess jurisdiction of the subject matter of a state legislative reapportionment case; (2) That by allegations that there was substantial inequality of population between legislative districts a justiciable cause of action was stated upon which the Court could grant appropriate relief; (3) Individual citizens, electors and taxpayers had standing to challenge the apportionment statutes of a state; and (4) That district courts possess full authority to fashion relief in appropriate cases.

The Court has full jurisdiction of the person of the election commissioners of Mississippi, or any other person or persons charged with the duty of conducting elections for Senators and members of the House of Representatives of the Mississippi Legislature, certifying the results thereof and issuing commissions to the members so elected, to assure full compliance with whatever final order is rendered in this case by enjoining them from conducting any elections, certifying the result thereof or issuing commissions of office to any person claiming to have been elected contrary thereto.

THE MOTION TO DROP THE MISSISSIPPI FREEDOM DEMOCRATIC PARTY AS A PARTY PLAINTIFF

Defendants moved the Court to order the Mississippi Freedom Democratic Party dismissed and dropped from the cause as a party plaintiff, on the following grounds:

"(1) The unincorporated association does not have capacity to sue under the law of the State of Mississippi.

"(2) The unincorporated association does not allege that the suit in its common name is for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States, but alleges that it `* * * brings this suit on its own behalf and on behalf of its members.'

"(3) The unincorporated association does not possess for itself the right to vote or be represented in the Congress or the Mississippi Legislature; and it cannot affirmatively assert personal constitutional rights of or for its members; which said rights may be asserted only by the individuals possessing such rights.

"(4) Dropping the unincorporated association, which is neither a proper, necessary or indispensable party, will not materially affect the rights, if any, of the individual plaintiffs to the relief sought."

If the Rule were literally applied we have grave doubt that the Mississippi Freedom Democratic Party does have standing to sue in this particular case. We feel that deprivation of Constitutional rights is more properly to be asserted by persons, not organizations which merely claim to speak for persons, but the dismissal of the Freedoom Democratic Party will not affect this litigation; the persons who have sued in their own names will remain. Therefore, if error is to be committed either way, we prefer to err on the side of a broad interpretation of Rule 17(b) of the Federal Rules of Civil Procedure and we overrule the motion.¹ The Mississippi Freedom Democratic Party will, therefore, remain a party to this litigation and will be bound by its outcome, whatever that may be.

SUBJECT MATTER OF THE LITIGATION

Plaintiffs allege, in substance, that the apportionment of seats in the Senate and the House of Representatives of the Mississippi Legislature contain elements of invidious discrimination against the citizens of some of the senatorial and legislative districts and in favor of the citizens of other districts. The apportionment of representation of the various counties of the State in the House of Representatives and Senate is provided for by Sections 254 and 255, Mississippi Constitution of 1890, as amended by Chapter 57, General Laws of Mississippi, Second Extraordinary Session 1962, ratified by the electorate on February 5, 1963, and inserted into the Constitution by proclamation of the Secretary of State on February 13, 1963.

The statutes implementing the constitutional amendment by establishing posts for qualification and election of members are Section 3326—Representatives and Section 3327—Senators, Mississippi Code of 1942, Recompiled.

The Court notes that the official United States Census for the various counties of the State is the only authoritative population count for all of the counties in Mississippi. Plaintiffs elected to stand on these official population reports to show the disparity of population existing in many instances throughout the State. The identical figures will be set forth in an exhibit to this opinion.

The present apportionment of the House of Representatives is in accord with the provision of the State Constitution that requires that each county have one representative. The remaining forty members of the 122 member House are divided among the more populous counties on a population basis. The multiple-member counties elect 64 members, a majority, while the one-member counties elect 58 members. A majority of the House of Representatives can conceivably be elected by counties having a combined total population of 879,123 or 40.361% of the total population of the State.

The State is divided into forty-nine senatorial districts from which fifty-two senators are elected. The more populous counties are each allotted one senator and the smaller counties population-wise are combined for the purpose of electing a senator from the combined territory. A majority of the Senate can conceivably be elected from senatorial districts having a combined total population of 810,249, or 37.199% of the total population of the State.

In Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595, the Court said:

"It is simply impossible to decide upon the validity of the apportionment of one house of a bicameral legislature in the abstract, without also evaluating the actual scheme of representation employed with respect to the other house. Rather, the proper, and indeed indispensable, subject for judicial focus in a legislative apportionment controversy is the overall representation accorded to the State's voters, in both houses of a bicameral state legislature."

The apportionment of the Mississippi Legislature is more nearly equal when the representation in both the House and Senate are combined and considered together as shown on the appendix hereto. Even with this combination it cannot be rationally explained why representatives and senators from Washington County should represent 19,660 people while the representatives and senators from Claiborne and Jefferson Counties should represent only 6,996. Although the example is the extreme, there are other disparities that defy rational explanation, while some counties are properly represented under the present apportionment both in the House and Senate and when the two are combined.

No rational explanation can be given to show why 33 counties are in the group of 47 counties comprising the least possible number of people that can conceivably elect a majority of the State Senate while the same 33 counties are in the group of 51 counties that can conceivably elect the majority of the House of Representatives.

The comparison of combined House and Senate representation per county also fails when it is considered that the House has 122 members while the Senate has only 52 members.

Note is taken of the fact that the present apportionment was passed by the Legislature and approved by the electorate of the State before the cases hereinafter discussed were decided.

The Equal Protection Clause requires that, as a basic constitutional standard, the seats in both houses of a bicameral State legislature must be apportioned substantially on a population basis. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506; W. M. C. A. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568; Maryland Committee for...