District of Columbia v. US Dept. of Commerce, Civ. A. No. 91-0151.

Citation789 F. Supp. 1179
Decision Date03 April 1992
Docket NumberCiv. A. No. 91-0151.
CourtU.S. District Court — District of Columbia

789 F. Supp. 1179


Civ. A. No. 91-0151.

United States District Court, District of Columbia.

April 3, 1992.

Jacob R. Walker, Office of the Corp. Counsel, Washington, D.C., for plaintiff.

Sandra Schraibman, Paul W. Bridenhagen, U.S. Dept. of Justice, Washington, D.C., for defendants.


JOHN H. PRATT, District Judge.

Before the Court are Defendants' Motion to Dismiss or, in the Alternative for Summary Judgment, and the Plaintiff's Motion

789 F. Supp. 1180
for Summary Judgment. Plaintiff District of Columbia seeks a determination that the Bureau of the Census' inclusion of Lorton Correctional Facility inmates in the 1990 Census as residents of Virginia rather than of the District of Columbia violates the Constitution and the Census Act, 13 U.S.C. §§ 4, 5

Plaintiff claims violations of Article 1, Section 2, Clause 3 of the Constitution; Article 1, Section 9, Clause 4 of the Constitution; the 5th Amendment; and the Census Act, 13 U.S.C. §§ 4, 5.

Defendants1 claim that the case must be dismissed because it constitutes a non-justiciable political question, the resolution of which is best left to other branches of government. Further, defendants argue that the Bureau's application of the usual residence rule to Lorton inmates is a rational decision that is not arbitrary and capricious.

We hold that this case is justiciable in this Court and that it does not constitute a political question. We also find that the Bureau's continued application of the usual residence rule to Lorton does not rise to the level of arbitrary and capricious conduct. Therefore, we deny plaintiff's motion for summary judgment and grant defendants' motion for summary judgment.

I. Background

The Constitution from the beginning has mandated a decennial census for the purpose of apportioning Representatives to Congress, "in such manner as they the Congress shall by law direct." U.S. Const. Art. 1, § 2, cl. 3. Congress has delegated its authority to the Secretary of Commerce, pursuant to 13 U.S.C. §§ 5, 141. The Secretary of Commerce is permitted to delegate his authority to conduct the Census to the Bureau of the Census, 13 U.S.C. § 4.

During the 1990 Census, the Census Bureau applied its "usual residence rule" on April 1, 1990, to enumerate Lorton prisoners as residents of Virginia. Under the "usual residence rule", the Census Bureau counts persons at the place in which they generally eat, sleep, and work. People who are temporarily absent from that place are still counted as residing there. For example, people on a short vacation or trip on Census Day will still be enumerated at their usual place of residence. The usual residence principle derives from the requirements set forth in the First Census Act, 1 Stat. 101 (passed in 1790). That statute required that persons be enumerated according to their "usual place of abode" and that persons without a permanent residence be counted where found. See Declaration of Paula J. Schneider ("Schneider Dec."), Chief of the Population Division of the Census Bureau, ¶¶ 6-17, filed in Defendants' Memorandum of Points and Authorities in Support of Motion to Dismiss, or In the Alternative for Summary Judgment ("Defendants' Memorandum") Attach. 1. The usual residence for census purposes is not necessarily the same as legal residence or voting residence. Defendants' Memorandum at 6.

In addition, the Census Bureau has developed a set of special enumeration and residence rules for specific population groups in order to adhere to the usual residence principle. Schneider Dec. at ¶ 19. These categories include persons in the armed forces; college students; persons on maritime ships; migrant workers; and persons living in group quarters, including prisons. Schneider Dec. at ¶ 20. Residents of group quarters are enumerated as residents of the locality where the quarters are located, instead of where they would have been living if not resident in the group quarters. Schneider Dec. at ¶ 25. The inmates at Lorton prison have been enumerated for Census purposes as Virginia residents since 1916, when the prison was established. Defendants' Memorandum at 8.

Plaintiff without elaboration alleges that the practice of counting Lorton residents as

789 F. Supp. 1181
Virginia residents instead of District of Columbia residents will cause the District of Columbia to lose $60 million in federal funds over the next ten years

II. Political Question and Justiciability

Defendants posit that whether Lorton inmates are counted as District of Columbia residents or Virginia residents is a non-justiciable political question.

The Supreme Court delineated the parameters of the political question doctrine in the landmark case of Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). In Baker, the Court held justiciable a claim that a 1901 state apportionment statute violated equal protection by diluting the votes of some citizens. The Court noted that a political question is distinguished by the relationship between the judiciary and the coordinate branches of government and that it is essentially an issue of separation of powers. 369 U.S. at 210, 82 S.Ct. at 706.2

The Court in Baker outlined six factors that contribute to a determination of whether a case is justiciable or not:

Prominent on the surface of any case held to involve a political question is found 1 a textually demonstrable constitutional commitment of the issue to a coordinate political department; or 2 a lack of judicially discoverable and manageable standards for resolving it; or 3 the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or 4 the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or 5 an unusual need for unquestioning adherence to a political decision already made; or 6 the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

369 U.S. at 217, 82 S.Ct. at 710 (brackets and numerals supplied).

We now turn to whether any of these factors are "inextricable from the case at bar" such that this case must be dismissed as non-justiciable. 369 U.S. at 217, 82 S.Ct. at 710.

Upon brief examination, this case seems to involve several of the factors cited in Baker. The first factor to consider is whether there is a textually demonstrable constitutional commitment to another political department. We cannot ignore that Article I, Section 2, Clause 3 of the Constitution entrusts the taking of the Census to the Congress, a "coordinate political department." The history of this section of the Constitution3 suggests that the Framers among other things sought to protect the national census from local bias by entrusting it to the national government. See City of Willacoochee v. Baldrige, 556 F.Supp. 551, 557 (S.D.Ga.1983); City of Philadelphia v. Klutznick, 503 F.Supp. 663, 674 (E.D.Pa.1980); Young v. Klutznick, 497 F.Supp. 1318, 1326 (E.D.Mich. 1980), rev'd on other grounds, 652 F.2d 617 (6th Cir.1981), cert. denied, 455 U.S. 939, 102 S.Ct. 1430, 71 L.Ed.2d 650 (1982).

But, as many courts have noted, the constitutional basis for the jurisdiction of Congress

789 F. Supp. 1182
over the conduct of the Census does not provide a reason in every case to shield the Census from judicial review.4

Other Baker factors are ostensibly present as well. For example, if we were to require the Census Bureau to include Lorton residents as District of Columbia residents, Virginia would necessarily lose a corresponding number of residents. This case has ramifications beyond those stated by plaintiffs. The application of the usual residence rule could well be called into question by states which bear some of the cost for prisoners located in out-of-state penitentiaries.5 The level of support a locality needs to provide in order to "claim" residents for census purposes is clearly a decision for which there are no judicially manageable standards available. Similarly, there are a myriad of possible methods of conducting a census but no direction as to which is superior. See, e.g., Tucker v. United States Department of Commerce, 958 F.2d 1411, 1417-18 (7th Cir.1992) ("So nondirective are the relevant statutes that it is arguable that there is no law for a court to apply in a case like this — so that you might as well turn it over to a panel of statisticians and political scientists and let them make the decision, for all that a court could do to add to its rationality or fairness."). Multifarious pronouncements from various courts are possible6 as other localities may be encouraged to challenge provisions in residence rules that they believe might lower their population counts, undermining the application of usual residence rules and the integrity of the overall census.7

Although a brief examination indicates that plaintiffs may make out a colorable claim that the application of the usual residence rule to Lorton inmates constitutes a political question, we will not decline to hear this case on political question grounds. We make this decision because we are unable to distinguish this case from cases challenging the census in apportionment cases where the Supreme Court has held that the issues are justiciable. Further, to hold that this case is non-justiciable would be to rely on a somewhat shaky doctrine and depart from the practice of

789 F. Supp. 1183
many other courts. Whether or not to hear this case is a close question, clearly raising many of the concerns enunciated by the Baker v. Carr Court, and we believe that prudential reasons alone would be sufficient to decline jurisdiction. However, in light of the questions we have about the applicability of the doctrine, we prefer to reach the merits of this case

We find it difficult to distinguish...

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