Mader v. Crowell

• Decision Date: 27 March 1980
• Docket Number: No. 78-3079-NA-CV,78-3079-NA-CV
• Citation: 498 F. Supp. 226
• Parties: Richard MADER et al., v. Gentry CROWELL et al.
• Court: U.S. District Court — Middle District of Tennessee

498 F. Supp. 226

Richard MADER et al., v. Gentry CROWELL et al.

No. 78-3079-NA-CV

United States District Court, M. D. Tennessee, Nashville Division.

March 27, 1980.

John L. Ryder, Memphis, Tenn., for plaintiffs.

William W. Hunt, III, Asst. Atty. Gen., Robert B. Littleton, Deputy Atty. Gen., Nashville, Tenn., for defendants; William M. Leech, Jr., Atty. Gen., State of Tenn., of counsel.

Before BROWN, Circuit Judge, PHILLIPS, Senior Circuit Judge, and MORTON, Chief District Judge.

MEMORANDUM

PER CURIAM.

The complaint in this class action was filed March 8, 1978, to challenge the constitutionality of the apportionment of State Senatorial Districts enacted by the Tennessee General Assembly in 1973. This court, on January 15, 1979, held that apportionment plan to be unconstitutional because it allowed a gross maximum deviation from population equality of 18.03 per cent. We enjoined defendants from conducting any further elections under said plan. We retained jurisdiction to impose a plan of apportionment if the General Assembly failed to enact a constitutional reapportionment plan by June 1, 1979. The January 15, 1979, opinion of this court, heretofore unpublished, is made Appendix A to this opinion. Prior to the June 1, 1979, deadline, the legislature passed Chapter 443 of the Acts of 1979, now codified as Tennessee Code Annotated § 3-1-102, which reapportioned the Senatorial Districts. Plaintiffs thereupon filed a motion for further relief. (Note: the number of Code § 3-102 cited in Appendix A has been changed to § 3-1-102.)

Meanwhile, defendants appealed the January 15 order of this court to the Supreme Court of the United States, which held, in light of the later reapportionment act adopted by the legislature, that the issues raised by the State were moot. On October 1, 1979, the Supreme Court entered an order directing that the judgment of the district court be vacated and that the entire action be dismissed. Thereafter, in a per curiam opinion announced February 19, 1980, the Supreme Court granted a petition for rehearing, vacated the order of October 1, 1979, and remanded the cause to this court for "such further proceedings . . as may be appropriate." See Crowell v. Mader, No. 78-1780, 444 U.S. 505, 100 S.Ct. 992, 62 L.Ed.2d 701. The case now is before the court for consideration of plaintiffs' motion for further relief.

The parties have stipulated that, under the present senatorial district apportionment provided by Tennessee Code Annotated § 3-1-102, the gross maximum deviation from the ideal of population is .89 percent.¹ The stipulated population figures for the Senatorial Districts is made Appendix B to this opinion. Plaintiffs advance no claim that the State has violated the equal protection clause by failing to construct the districts "as nearly of equal population as is practicable." Reynolds v. Sims, 377 U.S. 533, 577, 84 S.Ct. 1362, 1390, 12 L.Ed.2d 506, 536 (1964).

Plaintiffs challenge the statute on two other grounds, however. First, they contend that two of the districts lack internal contiguity, in that a part of each district is not contiguous with the remainder of the same district. Second, they complain that the statute causes the disenfranchisement, for purposes of electing State Senators, of voters who have been shifted from even-numbered to odd-numbered districts. After reviewing the record and hearing oral argument by counsel, the court concludes that plaintiffs are not entitled to further relief on either of these grounds.

I

Plaintiffs assert that Districts Nine and Ten lack internal contiguity.

District Nine contains the northern portion of Hamilton County, most of Meigs County, and all of several other counties. The Hamilton County portion of District Nine touches the remainder of the district only at one portion of the common boundary between Hamilton and Meigs Counties; at that point the two counties are divided by the Tennessee River. No bridge or ferry crosses the river within the district.

In District Ten, all of which is within Hamilton County, the Airport and Eastdale precincts are nearly cut off from the remainder of the district by the Missionary Ridge precinct of another district. A narrow neck of land connects the two portions, but no road runs over this land. Plaintiffs contend that this alleged lack of contiguity violates federal and state law.

The federal constitution does not require either congressional or state legislative districts to be contiguous. See, e. g., Wood v. Broom, 287 U.S. 1, 53 S.Ct. 1, 77 L.Ed. 131 (1932); Ferrell v. Oklahoma, 339 F.Supp. 73, 82 (W.D.Okl.), aff'd mem. sub nom. Ferrell v. Hall, 406 U.S. 939, 92 S.Ct. 2045, 32 L.Ed.2d 328 (1972); Skolnick v. State Election Board, 336 F.Supp. 839 (N.D. Ill.1971); Ince v. Rockefeller, 290 F.Supp. 878, 883 (S.D.N.Y.1968). See also Wright v. Rockefeller, 376 U.S. 52, 59 n. 1, 84 S.Ct. 603, 607 n. 1, 11 L.Ed.2d 512, 517 (1964) (Douglas, J., dissenting).

Plaintiffs concede this, but they argue that federal courts have expressed a preference that legislative districts be contiguous. However, the United States Supreme Court decisions cited by plaintiffs do not even intimate that contiguity is a preferred redistricting goal. They suggest only the limited principle that a state may justify minor deviation from population equality in order to "provide for compact districts of contiguous territory ...." Reynolds v. Sims, supra, 377 U.S. at 578, 84 S.Ct. at 1390, 12 L.Ed.2d at 537. See, e. g., Chapman v. Meier, 420 U.S. 1, 23, 95 S.Ct. 751, 764, 42 L.Ed.2d 766, 782 (1975); Swann v. Adams, 385 U.S. 440, 444, 87 S.Ct. 569, 572, 17 L.Ed.2d 501, 504 (1967).² Federal law, therefore, neither requires nor expresses a preference for contiguity.

Plaintiffs next contend that the Tennessee Constitution requires contiguity, and that this court should modify the boundaries of Districts Nine and Ten on that ground. The Constitution of Tennessee, Article 2, Section 6, states, in pertinent part, that "in a district composed of two or more counties, each county shall adjoin at least one other county of such district ...." While this provision clearly has no application to District Ten which is contained in a single county, it may impose a requirement of contiguity on District Nine. Defendants argue that even if such a requirement exists, the District Nine portions of Hamilton County and Meigs County do adjoin each other so that there is no lack of contiguity.³

This question, of course, involves no federal constitutional claim and, therefore, is not within the court's jurisdiction under 28 U.S.C. § 2284(a). The court concludes, however, that since this claim and the federal claims asserted by plaintiffs in this case are derived from a "common nucleus of operative fact," and since the federal claims asserted are of a "substance sufficient to confer subject matter jurisdiction on the court," this State law question falls within the court's pendent jurisdiction. Sullivan v. Crowell, 444 F.Supp. 606 (W.D.Tenn.1978). See generally United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Seals v. Quarterly County Court, 526 F.2d 216 (6th Cir. 1975).

Contiguity, in the sense that each part of a whole adjoins⁴ another part of the whole, is solely a territorial concept. Contiguity is absent, then, only when a portion of a district is separated from the remainder of the district by the intervention of the territory of another district. Under the Tennessee Constitution, a county "adjoins" another county that is part of the same district unless another district separates the two counties. Therefore, the mere fact that the Tennessee River separates the District Nine portion of Hamilton County from another county in the district does not mean that the counties do not adjoin or are not contiguous.

According to plaintiffs, however, the lack of a bridge or ferry traversing the river from the Meigs County bank to the Hamilton County side renders District Nine noncontiguous. They argue that "a contiguous district is one in which a person can go from any point within the district to any other point without leaving the district." Comment, Reapportionment, 79 Harv.L. Rev. 1228 (1966) (no authority cited).

This definition per se is not inconsistent with the court's view that District Nine is contiguous. No particular mode of travel is specified. A person obviously could cross the river by boat without entering another district. Plaintiffs' reading, however, requires an inference that only terrestrial, as distinguished from marine, forms of transportation are intended. The court does not believe that convenience or ease of travel is an essential element of contiguity. Plaintiffs' proposed limitation would distort an otherwise plain and functional definition.

Plaintiffs further argue that contiguous territory is "territory touching, adjoining, and connected, as distinguished from territory separated by other territory," In re Sherrill, 81 N.E. 124, 131, 188 N.Y. 185 (1907). They contend that the Tennessee River, which separates Meigs County from Hamilton County, constitutes "other territory" which renders the district noncontiguous. In In re Sherrill, supra, the court held that Richmond County, New York, an island in the Atlantic Ocean, was not contiguous with Queens County on the mainland, because the water separating the two was "other territory." There is an obvious difference between the Tennessee River and the body of water involved in Sherrill.

This court declines to adopt any definition that would treat the Tennessee River as other territory.⁵ The Supreme Court of Michigan dealt with a situation somewhat similar to the present litigation in Board of Supervisors v. Blacker, 92 Mich. 638, 646, 52 N.W. 951, 953 (1892), a legislative reapportionment case. The court said:

Some argument is made that the Legislature was bound under the provisions of section 3, art. 4, declaring that "each representative

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