Thompson v. Thomson, 5651 Civil.

• Decision Date: 23 June 1972
• Docket Number: No. 5651 Civil.,5651 Civil.
• Parties: James THOMPSON et al., Plaintiffs, v. Thyra THOMSON, Secretary of the State of Wyoming, et al., Defendants.
• Court: U.S. District Court — District of Wyoming

344 F. Supp. 1378

James THOMPSON et al., Plaintiffs, v. Thyra THOMSON, Secretary of the State of Wyoming, et al., Defendants.

No. 5651 Civil.

United States District Court, D. Wyoming.

June 23, 1972.

Harold E. Meier, Lander, Wyo., for plaintiffs.

Clarence A. Brimmer, Atty. Gen. of the State of Wyoming, Cheyenne, Wyo., for defendants.

Before PICKETT, Senior Circuit Judge, and KERR and TEMPLAR, District Judges.

KERR, District Judge.

In this action plaintiffs challenge the constitutionality of the 1971 Reapportionment Act. They seek both declaratory and injunctive relief restraining defendants from enforcing said Act. Jurisdiction is grounded upon the Fourteenth Amendment to the Constitution of the United States. 28 U.S.C. §§ 1343(3), (4), 2201-2202, and 42 U.S.C. §§ 1983 and 1988. A three judge court was convened pursuant to 28 U.S.C. § 2281.

The facts have been stipulated, obviating the necessity of oral testimony.

On February 20, 1971, the Wyoming State Legislature enacted the Legislative Apportionment Act in question. Plaintiffs, as citizens and qualified voters of the State of Wyoming, allege the Act constitutes an "invidious discrimination", which violates the equal protection clause of the Fourteenth Amendment to the Constitution of the United States.

The origin of the 1971 Act stems from two earlier decisions of this Court. In 1964 the Wyoming Reapportionment Act of 1963 was found to be unconstitutional with regard to the State Senate. Schaefer v. Thomson, 240 F.Supp. 247 (D.C.Wyo.1964). The opinion held that the Wyoming Reapportionment Act of 1963 insofar as it provided for representation in the State Senate constituted an invidious discrimination and violated the equal protection clause of the Fourteenth Amendment to the Constitution of the United States; that the Reapportionment Act of 1963 insofar as it provided for representation in the House of Representatives was not an invidious discrimination and did not violate the Fourteenth Amendment to the Constitution of the United States. This Court left to the legislature the task of reapportioning the Senate but retained jurisdiction in the event the legislature was unable to arrive at a valid law within the requirements of the United States Constitution.

The legislature was unable to properly redistrict the state and in 1965 this Court reapportioned the Senate by judicial decree. Schaefer v. Thomson, 251 F.Supp. 450 (D.C.Wyo.1966), affirmed Harrison, et al. v. Schaefer, et al., 383 U.S. 269, 86 S.Ct. 929, 15 L.Ed.2d 750 (1966). This Court again reaffirmed its 1964 decision respecting the House of Representatives and stated "We reiterate our previous opinion that the Wyoming Reapportionment Act of 1963 (Chapter 22, Session Laws of Wyoming, 1963) is not an invidious discrimination insofar as it provides for representation in the State House of Representatives and in that respect it does not violate the Fourteenth Amendment to the United States Constitution".

It seems best at this point to dispose of the issue concerning the alleged unconstitutionality of the reapportionment of the House of Representatives. The Act made only five minimal adjustments to the 1963 Reapportionment of the House, which had previously been found constitutional by this Court and affirmed by the United States Supreme Court. The changes increased by one the number of representatives in three districts and decreased by one the number of representatives in two districts. These changes all reflected population variations.

We are of the opinion that the reapportionment of the House by the 1971 Act does not constitute invidious discrimination for the reason that the 1963 reapportionment of the House was not substantially altered and, therefore, the 1971 Act does not abridge the equal protection clause of the Fourteenth Amendment to the United States Constitution.

The allegation of unconstitutionality with respect to the Senate is not without its difficulties. To establish whether the 1971 reapportionment is constitutional it is necessary to examine the plan created by this Court in 1965. The Court divided the state into seventeen Senatorial Districts, which gave one Senator per 11,500 inhabitants, or major fraction thereof. The Court attempted to preserve historical county lines and did so, with one exception, viz: that of dividing Lincoln County in order to include it in two separate Senatorial Districts. 251 F.Supp., supra. The Court's reapportionment plan reduced "* * * the dilution in voting power from the ratio of 20 to 1 under the Wyoming Reapportionment Act of 1963 to the ratio of 2.08 to 1." Id. at 453.

In order to determine whether the 1971 Act amounts to invidious discrimination it is imperative to ascertain whether the changes made to this Court's 1965 plan, which was approved per curiam by the United States Supreme Court,¹ are so substantial as to remove the Act from the boundaries of this Court's Constitutional plan.

The legislature in 1971 employed essentially the same reapportionment plan as was set down by this Court in 1965. Based upon the 1970 census, it made only four changes so as to bring the districts closer to the ideal of one Senator representing each 11,500 persons in a district.

Since the last census, taken in 1960, the population of Wyoming increased from 329,646 to 332,416 in 1970, indicating a gain of slightly more than .007 percent. The...