Davis v. Dusch

Decision Date30 May 1966
Docket NumberNo. 10592.,10592.
Citation361 F.2d 495
PartiesJ. E. Clayton DAVIS, Rolland D. Winter, Cornelius D. Scully, and Howard W. Martin, Appellants, v. Frank A. DUSCH, Member, City Council, City of Virginia Beach, et al., Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

Henry E. Howell, Jr., Norfolk, Va. (Howell, Anninos & Daugherty, Norfolk, Va., on brief), for appellants.

Harry Frazier, III, Richmond, Va. (Harry T. Marshall, City Atty., Virginia Beach, Va., and Hunton, Williams, Gay, Powell & Gibson, Richmond, Va., on brief), for appellees.

Before BOREMAN, BRYAN and BELL, Circuit Judges.

ALBERT V. BRYAN, Circuit Judge:

Apportionment of councilmen of the City of Virginia Beach, Virginia, among its seven boroughs presents this controversy. The original allocation in the city charter was annulled by the District Court in an earlier proceeding1, as denying the electorate one-person-one-vote equality2. The charter was then amended by the General Assembly of Virginia in the January-March 1966 session to provide a new plan.3 To a renewed attack on the same ground, the District Court held the present pattern impregnable. The holding is now appealed and this court reverses.

The contested allotment of members of the council, the governing body of the city, is commonly known as the Seven-Four plan. It provides for 11 councilmen, all to be selected by the qualified voters throughout the entire city. However, 7 members are apportioned among 7 boroughs, one to each borough who must be a resident of that borough. The remaining 4 members are assigned to the city at large and may reside anywhere within its corporate limits.

The boroughs, their respective sizes and populations are as follows:

                Area in 1960
                Square Miles Borough Population
                      34             Blackwater           733
                      94.4           Pungo              2,504
                      58.6           Princess Anne      7,211
                      36.6           Kempsville        13,900
                      47             Lynnhaven         23,731
                      28             Bayside           29,048
                       2.4           Virginia Beach     8,091

The present City of Virginia Beach is the result of a consolidation on January 1, 1963 of the previous city of that name and the adjoining Princess Anne County. At that time the County was divided into 6 magisterial districts corresponding with, and having the same names as, the present boroughs, except that the borough of Princess Anne was formerly Seaboard District. Each district elected a supervisor, and these 6 supervisors constituted the governing County Board of Supervisors. The old City of Virginia Beach had 5 councilmen. The new City's council membership was a combination of the 6 former County positions and the 5 former city positions. However, as will have been noted, 5 councilmen of of the old city are now disposed as follows: to the Virginia Beach borough 1 and to the new city at large 4.

The earlier city was, as is now the borough of Virginia Beach, an oceanside resort looking mainly to summer tourists for its economy. Princess Anne County was formerly half urban and half rural. The new city encompasses about 301.6 square miles, of which 79.6 is water. As found by the District Court, the boroughs are generally of the following character:

Blackwater is agricultural and is expected to continue so for many years.

Pungo is "essentially rural".

Princess Anne, formerly the county seat and now containing the administrative agencies and the State courts, is "still primarily agricultural in nature".

Kempsville is changing rapidly from rural to urban.

Lynnhaven is "residential area with predominantly urban characteristics".

Bayside "has a considerable quantity of farm land" but as a suburb of the City of Norfolk many of its tracts have been developed for residential occupancy and the borough has taken on an urban complexion.

Virginia Beach as a borough continues to be a seaside resort as it has always been.

To sustain the 7-4 formula, substantial reliance is put in the requirement in the 1966 Act that the city-wide voters elect all the councilmen. Thus it is stressed, the ballots of voters in the smaller boroughs are not accorded greater weight than those cast in the larger boroughs: the small-borough voter's ballot is not more effective in electing a councilman than that of the large-borough elector. Correspondingly, the value of the larger-borough vote does not exceed that of the smaller-borough vote. The one-person-one-vote mandate is thus purportedly obeyed.

But full compliance with the 14th Amendment's Equal Protection Clause, we think, is still wanting. The principle of one-person-one-vote extends also to the level of representation, and exacts approximately equal representation of the people — that each legislator, State or municipal, represent a reasonably like number in population. But that is not achieved in the 7-4 plan; the imbalance in representation in the council is obvious.

For example, Blackwater containing 733 people will have the same assured representation as the borough of Lynnhaven with 23,731 persons, or Bayside with 29,048, or Kempsville with 13,900. Similar contrasts are evident. This disparateness is not cured by the city-wide election provision. "It is the distribution of * * * members rather than the method of distributing * * * them that must satisfy the demands of the Equal Protection Clause." Burns v. Richardson, 86 S.Ct. 1286, fn. 4, 16 L.Ed. 2d 376 (U.S. April 25, 1966).

Nor is this unequivalence of representation evened by the stipulation for 4 atlarge councilmen to represent all of the boroughs. Their election would in no circumstances equalize the representation of the larger boroughs with that of the smaller. True, Lynnhaven and Bayside as the two largest boroughs populationwise could, if they collaborated, elect all of the 4 members. However, if each elected 2, and even if these were considered as in actuality councilmen of that borough alone, giving it 3 members, the numerical representation per councilman would be far greater than that of Blackwater's member or Pungo's. Indeed, this would be so if all 4 at-large councilmen came from the largest borough, Bayside. Consequently, to repeat, the provision for 4 city-wide members does not remedy or in any way affect the disproportion of representation of the 7 borough members.

That equal representation is embraced in the Constitutional demand, epitomized as the rule of one-person-one-vote, is comprehensively expounded by Judge Sobeloff for this court in Ellis v. Mayor and City Council of Baltimore, 352 F.2d 123 (4 Cir. 1965). Importantly, the case's subject was fairness in drawing councilmanic election wards and the Constitutional criteria therefor. The opinion demonstrates, passim, that the "true thrust" of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) and its kin — WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568; ...

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11 cases
  • Hadley v. Junior College Dist. of Metropolitan Kansas City, 52758
    • United States
    • Missouri Supreme Court
    • 9 de setembro de 1968
    ...on the one man, one vote theory to city governing bodies. Ellis v. Mayor and City Council of Baltimore, CA 4, 352 F.2d 123; Davis v. Dusch, CA 4, 361 F.2d 495; Thayer v. Garraghan, 279 N.Y.S.2d 441; Seaman v. Fedourich, 16 N.Y.2d 94, 262 N.Y.S.2d 444, 209 N.E.2d 778; and our own case of Arm......
  • Kapral v. Jepson, Civ. No. 11470.
    • United States
    • U.S. District Court — District of Connecticut
    • 31 de maio de 1967
    ...v. Dempsey, 229 F.Supp. 754 (D.Conn.1964). 3 See Dusch v. Davis, 387 U.S. 112, 87 S. Ct. 1554, 18 L.Ed.2d 656 (1967), rev'g 361 F.2d 495 (4 Cir.1966) (members of city council); Sailors v. Board of Education of County of Kent, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967), aff'g 254 F.S......
  • Calderon v. City of Los Angeles
    • United States
    • California Court of Appeals Court of Appeals
    • 13 de março de 1970
    ...with strict accord to the reasoning on which it was predicated. For example, in Davis v. Dusch an earlier decision of the same court (4 Cir., 361 F.2d 495) was reversed, said earlier decision being expressly predicated on the proposition (stated in Reynolds v. Sims and quoted in the second ......
  • Montgomery County Council v. Garrott
    • United States
    • Maryland Court of Appeals
    • 1 de setembro de 1966
    ...counties, the election in such cases being on a county-wide basis, on the premise that the districts were equal in population. In Davis v. Dusch, 361 F.2d 495, the Court of Appeals for the Fourth Circuit, speaking through Judge Bryan, up-set a proposed apportionment plan for the City of Vir......
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