305 F.Supp. 269 (S.D.Ohio 1969), Civ. 7259, Heiser v. Rhodes

Docket NºCiv. 7259
Citation305 F.Supp. 269
Party NameHeiser v. Rhodes
Case DateOctober 27, 1969
CourtUnited States District Courts, 6th Circuit, United States District Courts. 6th Circuit. Southern District of Ohio

Page 269

305 F.Supp. 269 (S.D.Ohio 1969)

Karl HEISER, Plaintiff,

v.

James A. RHODES, individually and as Governor of the State of Ohio, et al., Defendants.

Civ. No. 7259.

United States District Court, S.D. Ohio, Western Division.

Oct. 27, 1969

Arnold Morelli, Bauer & Morelli, Cincinnati, Ohio, for plaintiff.

Julius J. Nemeth, Asst. Atty. Gen., Columbus, Ohio, Arthur M. Ney, Asst. Hamilton County Prosecutor, Cincinnati, Ohio, for defendants.

OPINION AND ORDER

Before WEICK, Circuit Judge, and PORTER and HOGAN, District Judges.

HOGAN, District Judge.

On September 18, 1969, the defendants, who include the election officials of the State of Ohio, rejected the candidacy of the plaintiff for the office of member of the State Board of Education from the First Ohio District on the ground that he was not a qualified voter residing in the territory comprising the First District.

This action was promptly filed by the plaintiff in two capacities, the one being as a qualified elector of the State and the other being as a potential candidate. The relief sought by the plaintiff includes the following:

a) The declaration that Ohio Revised Code § 3301.011 (the Ohio apportionment

Page 270

statute applicable to the State School Board) is invalid under the 663 (1962); and Wesberry v. Sanders, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d principles set forth in Baker v. Carr, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964); and Lucas v. Rhodes, 389 U.S. 212, 88 S.Ct. 416, 19 L.Ed.2d 423 (1967).

b) An injunction prohibiting the defendants from 'allowing a vote upon the office of the State Board of Education' until the district lines are drawn to satisfy the principles in the above cases.

c) An alternative order (based on the contention of the plaintiff that the present Congressional districting statute, Ohio Revised Code § 3521.01, as amended in 1968, applies to and covers School Districts) directing that the election, insofar as State Board of Education members be concerned, be held in eight districts for eight members, with the district lines corresponding to the present Congressional district lines.

d) Finally, for an order directing the defendants to place the name of the plaintiff on the ballot as a candidate for the office of State Board of Education from the First District, the lines of the First District being those set forth in the Congressional redistricting of 1968.

In 1967 the Ohio Legislature divided the State into 24 different districts for Congressional purposes. In each was to be elected one member of Congress in the 1968 general election. At the same time the State was divided into 24 districts for several other purposes; one was the election periodically from each of such districts of two delegates to the national convention of each of the major political parties; another was for the purpose of electing periodically from each of those 24 districts of a committeeman and a committeewoman to serve on the State Central Committees of each of the two major political parties; another was for the election in 1967 of 24 members of the Ohio State Board of Education, one from each of the 24 districts. The Congressional districting statute of the Ohio Legislature of 1967, then O.R.C. § 3521.01, was read into or adopted by reference in the statutes pertaining to these other offices. For example, the one dealing with the State Board of Education, § 3301.01, provided that the boundaries of the 24 districts and the counties composing each district 'shall coincide with the boundaries and counties comprising each of the 24 Congressional districts as such latter districts were in lawful existence on March 1, 1967, under § 3521.01 of the Revised Code. One member of the State Board of Education shall be elected from each of the 24 districts created in this section.' Whereas, a congressman is elected from each district every two years, as are all state central committeemen and committeewomen, and whereas, elections are held every four years for all delegates to the national conventions, that is not so in respect of the State Board of Education. The term of each member is six years. However, the original 24 elected in 1967 drew lots to determine which 8 of them would serve for two years, which 8 for four, and which 8 for six; the coming election in Ohio therefore involves eight districts and eight offices, each of the offices being for a six-year term. (O.R.C. § 3301.021)

The plaintiff resides on East Sharon Road in Glendale, Hamilton County, Ohio. That territory was included in the First Ohio Congressional District in the Ohio apportionment statute of 1967 and was literally included, therefore, (we say 'literally' to avoid entanglement with that part of the Ohio statute reading 'lawfully') within the First Ohio District for State Board of Education purposes.

In 1967 the Ohio Congressional apportionment statute of 1967 was attacked in the Northern District of Ohio as unconstitutional under Wesberry v. Sanders, supra. In the same case, attack was made on those two Ohio statutes which 'adopted' the Congressional

Page 271

districting statute for boundary and apportionment purposes, i.e., State central committee members and delegates to national conventions. The board of education boundary and apportionment statute, incorporating the same Congressional statute by reference, was not attacked in the Northern District case. In December, 1967, the Supreme Court of the United States held the basic statute and the two 'adopters' unconstitutional under Wesberry. Thereafter, the United States District Court for the Northern District of Ohio enjoined the holding of elections in Ohio for congressmen and the two types of party nominees until Ohio was redistricted for those purposes in accordance with the 'one-man one-vote' principle. In 1968, the Ohio Legislature adopted a new Congressional districting and apportionment statute-- § 3521.01. The Northern District Court approved that reapportionment and future elections for such offices.

For the purposes of Congressional elections, the plaintiff's residence '60 East Sharon Road' left the Second Ohio Congressional District and was transited into the First Ohio Congressional District. As a matter of fact, plaintiff filed for and ran for Congress from the First Ohio Congressional District in the general elections in 1968. In the summer of 1969 he filed as a candidate for the State Board of Education from the First District. The Ohio statute requires a candidate for the State Board of Education to be a 'qualified elector residing in the territory comprising the district from which he is elected.' The Ohio election officials, the...

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6 practice notes
  • 381 F.Supp. 327 (D.Md. 1974), Civ. Y-74-748, Kirkley v. State of Maryland, by Mandel
    • United States
    • Federal Cases United States District Courts 4th Circuit United States District Court (Maryland)
    • August 26, 1974
    ...U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944); Blassman v. Markworth, 359 F.Supp. 1 (N.D.Ill.1973) (three-judge court); Heiser v. Rhodes, 305 F.Supp. 269 (S.D.Ohio 1969) (three-judge court); Stack v. Adams, 315 F.Supp. 1295, 1297 (N.D.Fla.1970) (three-judge court). Cf. Bullock v. Carter, 405 U.......
  • 586 F.Supp. 77 (E.D.N.Y. 1984), 83 CV 206, Ponterio v. Koch
    • United States
    • Federal Cases United States District Courts 2nd Circuit United States District Court (Eastern District of New York)
    • May 22, 1984
    ...v. Kavanagh, 413 F.Supp. 1132, 1135 (E.D.Mich.1976); Vandross v. Ellisor, 347 F.Supp. 197, 201-02 (D.S.Car.1972); Heiser v. Rhodes, 305 F.Supp. 269, 272 (S.D.Ohio 1969) (three-judge court) ("Secondly--it has been consistently held that, while a voter in a given case may have a right to......
  • 313 F.Supp. 1267 (E.D.Tenn. 1970), Civ. A. 6701, Snyder v. Swann
    • United States
    • Federal Cases United States District Courts 6th Circuit Eastern District of Tennessee
    • January 28, 1970
    ...of state citizenship and not a federally guaranteed one. Bacon v. Holzman, 264 F.Supp. 120 (E.D.Ill., 1967). * * *' Heiser v. Rhodes, 305 F.Supp. 269, 272 (S.D.Ohio, 1969-- opinion of a three judge Furthermore, the Court is of the opinion that the suit must be dismissed because of the adjud......
  • 347 F.Supp. 197 (D.S.C. 1972), Civ. A. 72-676, Vandross v. Ellisor
    • United States
    • Federal Cases United States District Courts 4th Circuit United States District Court of South Carolina
    • August 10, 1972
    ...or guaranteed. Synder v. Swann, D.C., 313 F.Supp. 1267 (1970); Bacon v. Holzman, D.C., 264 F.Supp. 120 (1967); Heiser v. Rhodes, D.C., 305 F.Supp. 269 Despite this court's conviction that jurisdiction does not exist, in the light of those judicial bombshells by which appellate courts, in th......
  • Request a trial to view additional results
6 cases
  • 381 F.Supp. 327 (D.Md. 1974), Civ. Y-74-748, Kirkley v. State of Maryland, by Mandel
    • United States
    • Federal Cases United States District Courts 4th Circuit United States District Court (Maryland)
    • August 26, 1974
    ...U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944); Blassman v. Markworth, 359 F.Supp. 1 (N.D.Ill.1973) (three-judge court); Heiser v. Rhodes, 305 F.Supp. 269 (S.D.Ohio 1969) (three-judge court); Stack v. Adams, 315 F.Supp. 1295, 1297 (N.D.Fla.1970) (three-judge court). Cf. Bullock v. Carter, 405 U.......
  • 586 F.Supp. 77 (E.D.N.Y. 1984), 83 CV 206, Ponterio v. Koch
    • United States
    • Federal Cases United States District Courts 2nd Circuit United States District Court (Eastern District of New York)
    • May 22, 1984
    ...v. Kavanagh, 413 F.Supp. 1132, 1135 (E.D.Mich.1976); Vandross v. Ellisor, 347 F.Supp. 197, 201-02 (D.S.Car.1972); Heiser v. Rhodes, 305 F.Supp. 269, 272 (S.D.Ohio 1969) (three-judge court) ("Secondly--it has been consistently held that, while a voter in a given case may have a right to......
  • 313 F.Supp. 1267 (E.D.Tenn. 1970), Civ. A. 6701, Snyder v. Swann
    • United States
    • Federal Cases United States District Courts 6th Circuit Eastern District of Tennessee
    • January 28, 1970
    ...of state citizenship and not a federally guaranteed one. Bacon v. Holzman, 264 F.Supp. 120 (E.D.Ill., 1967). * * *' Heiser v. Rhodes, 305 F.Supp. 269, 272 (S.D.Ohio, 1969-- opinion of a three judge Furthermore, the Court is of the opinion that the suit must be dismissed because of the adjud......
  • 347 F.Supp. 197 (D.S.C. 1972), Civ. A. 72-676, Vandross v. Ellisor
    • United States
    • Federal Cases United States District Courts 4th Circuit United States District Court of South Carolina
    • August 10, 1972
    ...or guaranteed. Synder v. Swann, D.C., 313 F.Supp. 1267 (1970); Bacon v. Holzman, D.C., 264 F.Supp. 120 (1967); Heiser v. Rhodes, D.C., 305 F.Supp. 269 Despite this court's conviction that jurisdiction does not exist, in the light of those judicial bombshells by which appellate courts, in th......
  • Request a trial to view additional results