Dobson v. Mayor and City Council of Baltimore City, Civ. No. 71-772.

• Decision Date: 23 August 1971
• Docket Number: Civ. No. 71-772.
• Citation: 330 F. Supp. 1290
• Parties: Vernon N. DOBSON et al. v. The MAYOR AND CITY COUNCIL OF BALTIMORE CITY et al. and John C. Donohue, President, et al.
• Court: U.S. District Court — District of Maryland

330 F. Supp. 1290

Vernon N. DOBSON et al. v. The MAYOR AND CITY COUNCIL OF BALTIMORE CITY et al. and John C. Donohue, President, et al.

Civ. No. 71-772.

United States District Court, D. Maryland.

August 23, 1971.

Wilbur D. Preston, Jr., Norwood B. Orrick, Larry S. Gibson and Robert Emmett Sharkey, Baltimore, Md., for plaintiffs.

George L. Russell, Jr., City Sol., Ambrose T. Hartman, Deputy City Sol., and Allan B. Blumberg and Carol S. Sugar, Asst. City Sols., Baltimore, Md., for the defendant Mayor and City Council of Baltimore.

Francis B. Burch, Atty. Gen., and E. Stephen Derby, Asst. Atty. Gen., Baltimore, Md., for the defendant Board of Supervisors of Elections of Baltimore City.

HARVEY, District Judge:

In this civil action, eight black residents of the City of Baltimore seek to enjoin the holding of certain impending elections for City Council, namely, a primary election scheduled for September 14, 1971 and a general election scheduled for November 2, 1971.¹ In their complaint, plaintiffs assert the unconstitutionality of a recent redistricting Ordinance, No. 1023, of the Mayor and City Council of Baltimore, dated April 1, 1971, claiming that this enactment denies plaintiffs rights guaranteed to them by the Thirteenth, Fourteenth and Fifteenth Amendments to the United States Constitution.² Named collectively and individually as defendants are the Mayor and the present members of the City Council of Baltimore and the President and members of the Board of Supervisors of Elections of Baltimore City.

Plaintiffs claim that Ordinance No. 1023, which redistricted the City into new councilmanic election districts as required by the Baltimore City Charter, amounts to unconstitutional racial gerrymandering. A declaratory judgment and an injunction are sought prohibiting primary and general elections for City Councilmen until a new redistricting plan has been adopted by the City Council or by this Court if the City Council refuses to act.³ Plaintiffs are not asking this Court to enjoin the primary and general elections for the office of Mayor, President of the City Council and Comptroller. These city-wide elections, which were not affected by the division of the City into new councilmanic election districts by Ordinance No. 1023, will proceed whatever the outcome here.

On behalf of the Mayor and City Council, the City Solicitor has filed a motion to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure, claiming that the plaintiffs are barred by laches. Inasmuch as various affidavits and exhibits were filed in support of this motion, it has been treated herein as a motion for summary judgment. The defendants who constitute the Board of Supervisors of Elections have filed, together with additional affidavits, a separate motion for summary judgment under Rule 56, raising questions similar to those presented herein by the Mayor and City Council. In view of the short period of time remaining until the primary election, this Court suggested, and counsel for the parties readily agreed, that the case should be heard at the same time both on its merits and on the pending motions. The defendants have accordingly filed answers, without prejudice to a full consideration of the legal questions raised by their motions, and to expedite the trial, counsel for the parties have agreed upon a number of stipulations. An all-day hearing was held on August 13, 1971, at which the various stipulations were presented to the Court, numerous exhibits were put in evidence, and one witness was called to testify. The case was fully and ably argued by counsel for all the parties both on the motions and on the merits.

The History of Ordinance No. 1023.

Since Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), various redistricting plans for the Baltimore City Council have been attacked in this Court. In Ellis v. Mayor and City Council of Baltimore, 234 F.Supp. 945 (D.Md.1964), the apportionment existing in 1963 was challenged and found to be unconstitutional in an opinion by Judge Winter. The Fourth Circuit affirmed. 352 F.2d 123 (4th Cir. 1965). A later plan was upheld by Judge Thomsen in Ellis v. Mayor and City Council of Baltimore City, 267 F.Supp. 263 (D. Md.1967).

For a better understanding of the issues presented in this case, particular events leading up to the adoption of Ordinance No. 1023 will be set forth in some detail. In 1966, the Baltimore City Council redistricted the City into six councilmanic election districts in accordance with the existing provisions of the Baltimore City Charter dealing with reapportionment.⁴ In 1967, the eighteen members of the Baltimore City Council were elected under the 1966 redistricting plan, with three members being elected from each councilmanic district to hold office for a period of four years.

On November 3, 1970, the voters of the City approved an amendment to § 7 of Article III of the Charter of Baltimore City (1964 Revision, as amended), which provides as follows:

"Section 7. Councilmanic Districts

(A) The City shall be divided by ordinance into districts for the election of members of the City Council. The criteria in redistricting shall be equality of population, contiguous territory, compactness, natural boundaries, existing councilmanic district lines, and the standards established by the Supreme Court of the United States.

(B) Following each census of the United States, the Mayor shall prepare a plan for councilmanic redistricting. The Mayor shall present the plan to the City Council not later than the first day of February of the first municipal election year following the census. After the Mayor's plan is presented to the City Council, the council may adopt it or amend it or the City Council may adopt another plan. If no plan has been ordained by the City Council within sixty days after the Mayor's plan is presented, the Mayor's plan shall take effect as the redistricting ordinance."

Following approval of this amendment to the City Charter, the Mayor appointed an advisory committee on councilmanic redistricting composed of City Councilmen, community leaders and other citizens, with the request that such committee prepare a redistricting plan for the City for presentation by the Mayor to the City Council as required by said § 7(B). Dr. Harry Bard, President of the Community College of Baltimore, was appointed chairman of this committee, which was thereafter known as the "Bard Committee."⁵

The Bard Committee was immediately faced with a problem created by the statutory deadlines included in the redistricting legislation. Under § 7(B), the Mayor was required to present the new redistricting plan to the City Council not later than February 1, 1971. This plan was to be based on 1970 census figures, but it became apparent that these figures would not be available for Baltimore City until shortly after February 1, 1971. In response to a request from the Mayor for advice concerning this dilemma, the City Solicitor, in a formal written opinion dated January 20, 1971, advised the Mayor that the February 1 deadline set forth in § 7(B) was mandatory. The City Solicitor pointed out that this date would allow for a minimum of three months to elapse from the date on which new district lines were set (namely, April 1) to the final date for the filing by candidates of certificates of candidacy (namely, July 6) and concluded that this three-month period was specifically intended by the framers of the amendment to provide adequate notice of new district lines to all those contemplating filing.

Acting pursuant to this advice, the Bard Committee submitted to the Mayor and the Mayor in turn presented to the City Council on February 1, 1971 a plan for councilmanic redistricting (the so-called "Original Bard Plan"). This plan was based on population estimates prepared by the City Planning Department using 1968 population projection data, and in his letter of transmittal, the Mayor pointed out that it might be necessary to amend this plan when 1970 census figures were available. Shortly thereafter on February 8, 1971, the United States Bureau of the Census released census data for the City of Baltimore based on the final results of the 1970 Census. In comparing the final census data with the City Planning Department estimates, the Bard Committee concluded that the differences were too great for the Original Bard Plan to meet legal requirements, and it undertook to amend such Plan. On February 19, 1971, the Bard Committee presented to the Mayor a revised plan (the so-called "Amended Bard Plan"), which the Committee concluded met constitutional requirements. On February 22, 1971, the Mayor forwarded the Amended Bard Plan to the City Council indicating that although he did not concur with this Plan's conclusions, he thought it appropriate that the City Council have the benefit of modifications of the Original Bard Plan prepared in accordance with the 1970 Census statistics.

In a letter to the President of the City Council dated March 1, 1971, the City Solicitor expressed the opinion that in submitting the Amended Bard Plan to the City Council, the Mayor had substantially complied with § 7(B) and that such Plan should be considered as relating back to the February 1 deadline. The City Solicitor pointed out that the City Council had only 30 days to act and reminded the City Council that if no plan was adopted by it by April 1, 1971, that Plan would automatically take effect on that date. The City Solicitor further requested that any substitute or amended plan introduced should be submitted to his office for approval as to form and legal sufficiency before final passage by the City Council.

Thereafter, the City Council considered and rejected the Amended Bard Plan. City Councilman Reuben Caplan (Fifth District) then prepared and introduced before the Council another plan (the so-called "Caplan Plan"). This plan was presented to the City Solicitor for a ruling as to...