Dungan v. Sawyer

• Citation: 250 F. Supp. 480
• Decision Date: 23 September 1965
• Docket Number: Civ. No. 695.
• Parties: Flora DUNGAN, also known as Flora Oncken, and C. W. Woodbury, M. D., Plaintiffs, v. Grant SAWYER, Governor of the State of Nevada, John Koontz, Secretary of the State of Nevada, Paul Laxalt, Lieutenant Governor of the State of Nevada, Michael Mirabelli, Treasurer of the State of Nevada, and Members of and the Legislature of the State of Nevada, Defendants.
• Court: U.S. District Court — District of Nevada

250 F. Supp. 480

Flora DUNGAN, also known as Flora Oncken, and C. W. Woodbury, M. D., Plaintiffs, v. Grant SAWYER, Governor of the State of Nevada, John Koontz, Secretary of the State of Nevada, Paul Laxalt, Lieutenant Governor of the State of Nevada, Michael Mirabelli, Treasurer of the State of Nevada, and Members of and the Legislature of the State of Nevada, Defendants.

Civ. No. 695.

United States District Court D. Nevada.

September 23, 1965.

Boyd & Leavitt, Las Vegas, Nev., for plaintiffs.

Harvey Dickerson, Atty. Gen., State of Nevada, Carson City, Nev., Vargas, Dillon, Bartlett & Dixon, Reno, Nev., Alvin N. Wartman, G. William Coulthard, Las Vegas, Nev., for defendants.

Before BARNES, Circuit Judge, and FOLEY and THOMPSON, District Judges.

PER CURIAM.

I

This class suit is brought by two citizens, as taxpayers, electors and qualified voters of the State of Nevada, seeking a declaratory judgment (28 U.S.C. §§ 2201 and 2202) to redress the alleged deprivation of rights guaranteed to them, and others in their class equally, by the Constitution of the United States (28 U.S.C. § 1343(3); 42 U.S.C. § 1988).

This suit is one of the hundreds spawned by Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), and the subsequent guide lines and refinements expressed in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506; W. M. C. A., Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568; Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595; Davis v. Mann, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609; and Lucas v. Forty-Fourth General Assembly of State of Colo., 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (all decided June 15, 1964), and other recent decisions of the Supreme Court of the United States. Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960); Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964); Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965); Travia v. Lomenzo, 381 U.S. 431, 85 S.Ct. 1582, 14 L.Ed.2d 480 (1965); Scott v. Germano, 381 U.S. 407, 85 S.Ct. 1525, 14 L.Ed.2d 477 (1965).

Nevada, California, and certain other western states of the United States, are particularly and increasingly vulnerable to this type of suit, because of the continuing vast influx of population from other portions of the country.

Such shifts in population to new areas accentuate the possibilities of charges of "the debasement" of a citizen's vote¹ by a state legislature's action, or by the alleged failure or inability of the state legislatures to act pursuant to constitutional requirements. The result is an alleged "invidious discrimination" against the complaining litigants, and others in their class, amounting to or resulting in the alleged violation of the equal protection clause of Section 1 of the Fourteenth Amendment to the United States Constitution.² (See Silver v. Jordan, 241 F.Supp. 576 (S.D.Calif., 1964), aff'd 381 U.S. 415, 85 S.Ct. 1572, 14 L.Ed.2d 689 (1965).

II—Jurisdiction

We first hold this three-judge district court was properly convened (28 U.S.C. §§ 2201, 2202), and that it has jurisdiction, i. e., that the subject matter of the suit is justiciable, and that the action does not present a non-justiciable political question having to do with the relationship between the judiciary and its coordinate branches of the Federal Government (as it was held to be prior to Baker v. Carr, supra, 369 U.S. pp. 204-236, especially at 217, 82 S.Ct. 691).

III—Proceedings in This Action

This court, on its own initiative, on May 12, 1965, issued its order joining each member of the Nevada Legislature, both Senate and Assembly, and the Legislature itself, as parties defendant in this litigation. Fed.R.Civ.P. 24(a) (2). Kozak v. Wells, 278 F.2d 104 (8th Cir. 1960); California v. United States, 180 F.2d 596 (9th Cir. 1950).

A Stipulation of Facts had been theretofore filed herein on April 9, 1965, and it was ordered that each fact therein established be deemed adopted by each newly added defendant who did not answer and deny the same, or some portion thereof. Certain individual defendants did answer and deny certain of the facts previously stipulated to, but such denials are not material to this judgment.

Briefs were filed by all parties hereto who desired to state their respective positions, and oral argument was had on June 23, 1965. At that time further evidence was received.

IV—Remedy Sought

The remedy sought by this litigation is to have this court declare Article IV, Section 5, of the Constitution of the State of Nevada³ unconstitutional, and, as well, all statutory laws based thereon (particularly § 218.050⁴ to § 218.080, inclusive, of the Revised Statutes of Nevada) as invidiously discriminatory, and to issue certain restraining and other orders to insure adequate and constitutional representation to all persons.

V—History

The Nevada Constitution was originally adopted July 28, 1864, by a Constitutional Convention made up of delegates elected from the then ten counties of Nevada.⁵

Article XVII, Section 6, of the Nevada Constitution, as it originally stood, apportioned legislators as follows: Storey County, 4 senators and 12 assemblymen; Douglas County, 1 senator and 2 assemblymen; Esmeralda County, 2 senators and 4 assemblymen; Humboldt County, 2 senators and 3 assemblymen; Lander County, 2 senators and 4 assemblymen; Lyon County, 1 senator and 3 assemblymen; Lyon and Churchill Counties, 1 senator jointly; Churchill County, 1 assemblyman; Nye County, 1 senator and 1 assemblyman; Ormsby County, 2 senators and 3 assemblymen; Washoe and Roop Counties, 2 senators and 3 assemblymen. (Stipulation of Facts, paragraph 5.)

The first paragraph of Article IV, Section 5, as originally adopted, read as Article IV, Section 5, first paragraph, presently reads (See note 3.) (Stipulation of Facts, paragraph 4; Hillyer's Nevada Compiled Laws, 1929, § 56, p. 34.)

Nevada's original Constitution vested all law making power in the Senate and Assembly (Art. IV, Sec. 1), subject only to the Federal Constitution and such restrictions as are expressly placed upon them by the State Constitution. Gibson v. Mason, 5 Nev. 283, 284, 293; State ex rel. Perry v. Arrington, 18 Nev. 412, 4 P. 735 (1884).

Nevada's original Constitution in Article I, Section 13, stated, and the Constitution today states: "Representation shall be apportioned according to population.⁶

At the general election of 1904, the people of Nevada ratified and approved the legislative enactment of Article XIX, Section 1, of the Constitution, providing for a referendum, and in 1912 ratified and approved the legislative enactment of the initiative. Art. XIX, Sec. 3.⁷

Article XV, Section 6, limited the numbers of both branches of the legislature to seventy-five, and Article XV, Section 13, provides for a state census "* * * in 1875, and every ten years thereafter," and that this census, with the federal census "shall serve as the basis of representation in both houses of the Legislature."

The 1947 legislature proposed and passed as an amendment to Section 5 of Article IV the second paragraph of the present Section 5. It was likewise agreed to and passed by the 1949 legislature, and approved and ratified by the people of Nevada, at the 1950 general election.⁸

In 1950, the people of the State of Nevada by vote of 32,150 to 9,331, amended Article IV, Section 5, of their Constitution to include the following as the second paragraph thereof:

"The senate shall consist of one senator from each county. The members of the assembly shall be apportioned on the basis of population; provided, that each county shall be entitled to at least one assemblyman. It shall be the mandatory duty of the legislature at its first session after the taking of the decennial census of the United States in the year 1950, and after each subsequent decennial census, to fix by law the number of assemblymen, and apportion them among the several counties of the state, according to the number of inhabitants in them, respectively." (Stipulation of Facts, paragraph 7.)

Both before and after 1951, the Nevada Legislature, in implementation of Section 5 of Article IV, enacted apportionment laws described as Nevada Revised Statutes 218.050⁹ to 218.080.¹⁰ (Assembly Bill No. 120, Chapter 189, approved March 27, 1947; Assembly Bill No. 93, Chapter 270, approved March 22, 1951; Assembly Bill No. 111, Chapter 88, approved March 13, 1961.)

In 1965, certain reapportionment bills were introduced in the Nevada Legislature.

We learn from the Stipulated Facts that Assembly Bill No. 1 was defeated in the Assembly by a vote of 18 to 17, and did not reach the Senate.

It appears obvious that the 1965 legislature had full opportunity during its recent session to enact a valid plan of reapportionment, but that it adjourned without doing so, and failed, neglected and refused to enact into law any plan of reapportionment.¹¹

VI—Population

It is requisite to here emphasize (a) the explosive growth of certain counties in Nevada in recent years, and (b) various population disparities which presently exist in the apportionment of seats in both the Nevada Senate and Assembly. As an example, the Stipulated Facts show (para. 8) that Clark County between 1910 and 1950 increased in population from 3,321 to 48,289, and increased its population between 1950 and 1960 to 127,016 persons.

VII—Population Disparities

Nevada's present system of apportionment under Article IV, Section 5, and its implementing legislation, finds, according to the last federal census (1960), Clark County with 127,016 persons comprising 44.52% of the state's population, represented by one senator and twelve assemblymen. Storey County, with a population of 568, has one senator and one assemblyman. This is a ratio of more than 223:1 for the Senate, and almost 19:1 for the Assembly.

Other lesser but large disparities...