Buckley v. Hoff, Civ. A. No. 3653.

• Decision Date: 10 July 1964
• Docket Number: Civ. A. No. 3653.
• Citation: 234 F. Supp. 191
• Parties: T. Garry BUCKLEY, Janette N. Berry, and James E. Fitzpatrick, Plaintiffs, v. Philip H. HOFF, Governor of Vermont, Howard E. Armstrong, Secretary of State of the State of Vermont, Samuel A. Parsons, as Town Clerk of the Town of Hubbardton, Virginia L'Eucyer, as County Clerk for the County of Grand Isle, Defendants, Leroy E. Lawrence, Erma Puffer, Samuel A. Parsons, Austin T. Foster, Lawrence Franklin, John D. Masterton, Russell Holmes, Stoyan Christowe, Cornelius Granai and Roger L. MacBride, Defendants-Intervenors, Harley Walter Kidder; Vermont League of Women Voters, Amici Curiae.
• Court: U.S. District Court — District of Vermont

234 F. Supp. 191

T. Garry BUCKLEY, Janette N. Berry, and James E. Fitzpatrick, Plaintiffs, v. Philip H. HOFF, Governor of Vermont, Howard E. Armstrong, Secretary of State of the State of Vermont, Samuel A. Parsons, as Town Clerk of the Town of Hubbardton, Virginia L'Eucyer, as County Clerk for the County of Grand Isle, Defendants Leroy E. Lawrence, Erma Puffer, Samuel A. Parsons, Austin T. Foster, Lawrence Franklin, John D. Masterton, Russell Holmes, Stoyan Christowe, Cornelius Granai and Roger L. MacBride, Defendants-Intervenors Harley Walter Kidder; Vermont League of Women Voters, Amici Curiae.

Civ. A. No. 3653.

United States District Court D. Vermont.

July 10, 1964.

A. Luke Crispe, Brattleboro, Vt., Joseph E. Frank, Richard H. Thomas, III, Burlington, Vt. for plaintiffs.

Charles E. Gibson, Jr., Atty. Gen., Chester S. Ketcham, Deputy Atty. Gen., for defendants Hoff and Armstrong.

Edmunds, Austin & Wick, Burlington, Vt., Hilton A. Wick, Burlington, Vt., of counsel, for defendant Parsons.

Harold C. Roberts, South Hero, Vt., for defendant L'Eucyer.

Hilton A. Wick, of Edmunds, Austin & Wick, Robert H. Erdmann, John T. Ewing, Burlington, Vt., Philip A. Kolvoord, Essex Junction, Vt., Austin T. Foster, Derby Line, Vt., for defendants-intervenors.

Harley Walter Kidder, Barre, amicus curiae, pro se.

Joseph A. McNamara, Burlington, Vt., for Vermont League of Women Voters, amicus curiae.

Before WATERMAN and SMITH, Circuit Judges, and ANDERSON, District Judge.

WATERMAN, Circuit Judge.

On January 22, 1963, the original plaintiffs, T. Garry Buckley, a resident, voter, and taxpayer of the Town of Bennington in Bennington County, and Janette N. Berry, a resident, voter, and taxpayer of the Town of Brattleboro in Windham County, filed their complaint in their own behalf and on behalf of all other persons similarly situated challenging the apportionment of the General Assembly of the State of Vermont. The complaint alleged that by reason of the applicable provisions of the Vermont State Constitution and by reason of the General Assembly's latest Apportionment of State Senators Bill, adopted August 9, 1962,¹ pursuant to said Constitution and the decision interpreting its meaning handed down by the Supreme Court of Vermont on July 19, 1962, Mikell v. Rousseau, 123 Vt. 139, 183 A.2d 817, petitioners were denied an equal suffrage with more favorably situated inhabitants of the State and were deprived of the equal protection of the laws and of due process of law under the Fourteenth Amendment to the Constitution of the United States. They also alleged that the United States District Court had jurisdiction under the Civil Rights Act, 42 U.S.C. §§ 1983, 1988, and under 28 U.S.C. § 1343.

The complainants stated the Vermont General Assembly is composed of a Senate of 30 members and a House of Representatives of 246 members, and summarized the provisions of Chapter II, § 13 and Chapter II, § 18 of the Vermont Constitution, which provisions we set out herein in full:

"§ 13. Town representation; vacancies

"SECTION 13. In order that the freeman of the state may enjoy the benefit of election as equally as may be, each inhabited town in this state may, forever hereafter, hold elections therein and choose each one representative to represent them in the House of Representatives. Provided, however, that the General Assembly shall have the power to regulate by law the mode of filling all vacancies in the House of Representatives which shall happen by death, resignation or otherwise."

"§ 18. Senators; number; qualification; apportionment

"SECTION 18. The Senate shall be composed of thirty Senators, to be of the freemen of the county for which they are elected, respectively, who shall have attained the age of thirty years, and they shall be elected biennially by the freemen of each county respectively.

"The Senators shall be apportioned to the several counties, according to the population, as ascertained by the census taken under the authority of Congress in the year 1910, regard being always had, in such apportionment, to the counties having the largest fraction, and each county being given at least one Senator.

"The Legislature shall make a new apportionment of the Senators to the several counties, after the taking of each census of the United States, or after a census taken for the purpose of such apportionment, under the authority of this State, always regarding the above provisions of this section."

They set out in their complaint detailed population statistics of towns, cities, and counties in the State² demonstrating how they claimed deprivation of their voting rights and requested that a three-judge district court be convened under 28 U.S.C. §§ 2281 and 2284.

The original defendants were Vermont's Governor, Lieutenant Governor, Secretary of State, Speaker of the House of Representatives, and one Ernest W. Gibson, III, as Chairman of a Joint Committee of the 1961 General Assembly charged with investigating and reporting to the 1963 General Assembly any suggested action relative to any reapportionment of the Houses.

Petitioners prayed that these defendants, who it was alleged had responsibilities relative to the conduct of free and fair elections, be enjoined from performing their duties, that the court declare, pursuant to 28 U.S.C. § 2201, that Chapter II, § 13, and Chapter II, § 18 of the State's Constitution are unconstitutional and invalid as violating the Constitution of the United States, and that

"The Court enter an order causing the reapportionment of the Representatives and Senatorial Districts of the State of Vermont in accordance with the population of the State and the provisions of the Constitution of the State of Vermont which provides for free and equal election."

and

"That in the alternative, the Court enter an order directing the conduct of the next election of Representatives and Senators to the General Assembly of the State of Vermont to be on an at-large basis of all the people of the State of Vermont being entitled to vote for all Senators and all Representatives to the General Assembly."

The District of Vermont is a one-judge district and, inasmuch as his son was a named defendant in this action, United States District Judge Ernest W. Gibson, Jr. found it necessary to disqualify himself from participation in the litigation; the only other federal judge in active service resident in the district, U.S. Circuit Judge Sterry R. Waterman, was designated to act in place of Judge Gibson; and a three judge district court was convened composed of Judge Waterman, Circuit Judge J. Joseph Smith of the U. S. Court of Appeals for the Second Circuit, and U. S. District Judge Robert P. Anderson, Chief Judge of the District Court for the District of Connecticut.

Motions to dismiss were filed by the defendants, and a hearing thereon was held on April 2, 1963, resulting in the dismissal of the action as to the Lieutenant Governor, the Speaker of the House of Representatives, and legislator Ernest W. Gibson, III. Also, it appearing that the plaintiffs might lack standing to maintain, as to each of them personally, that they were invidiously discriminated against under Chapter II, § 18 and the Apportionment Bill of 1962, leave was requested by, and granted to, them to file an amended complaint and to summon as an additional defendant the County Clerk of Grand Isle County, a county entitled to one Senator although as of the 1960 U. S. Census having but 2,927 inhabitants.

Other interested citizens of the State, all of whom are members of the House of Representatives of the General Assembly, sought to intervene, their petition was granted, one of them, Samuel A. Parsons, the Town Clerk of the Town of Hubbardton, population 238, was joined by the petitioners as a party-defendant, and a resident, voter, and taxpayer of the City of Burlington, population 35,531, was added as an additional party plaintiff. The amended complaint was then filed and served, praying for the same sort of relief as originally sought but now seeking to restrain the Governor and the Secretary of State, the Town Clerk of Hubbardton and the County Clerk of Grand Isle County from complying with the provisions of the election laws relative to the conduct of elections for membership in the State Senate and House of Representatives³ and further praying that the court hold unconstitutional, as violative of the Fourteenth Amendment of the United States Constitution, the amending provision of the Vermont State Constitution, Chapter II, § 68, the so-called "time-lock" provision, which reads as follows:

"§ 68. Amending constitution

"SECTION 68. At the fifth biennial session of the General Assembly of this State following that of A.D. 1910, and at the session thereof every tenth year thereafter, the Senate may, by a vote of two-thirds of its members, make proposals of amendment, to the Constitution of the State, which proposals of amendment, if concurred in by a majority of the members of the House of Representatives, shall be entered on the journals of the two Houses, and referred to the General Assembly then next to be chosen, and be published in the principal newspapers of the State; and if a majority of the members of the Senate and of the House of Representatives of the next following General Assembly shall respectively concur in the same proposals of amendment, or any of them, it shall be the duty of the General Assembly to submit the proposals of amendment so concurred in to a direct vote of the freemen of the State; and such of said proposals of amendment as shall receive a majority of the votes of the freemen voting thereon shall become a part of the Constitution of this State.

"The General Assembly shall direct the manner of voting by the people upon the proposed amendments, and enact all such laws as shall be necessary to procure a free and fair vote upon each amendment proposed, and to carry into effect all the provisions of this section."

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