Dyer v. Kazuhisa Abe, Civ. No. 1435.

CourtUnited States District Courts. 9th Circuit. United States District Court (Hawaii)
Writing for the CourtFong, Miho, Choy & Chuck, Honolulu, Hawaii, Katsugo Miho, Honolulu, Hawaii, for certain defendants
Citation138 F. Supp. 220
PartiesJohn F. DYER, Plaintiff, v. KAZUHISA ABE, Toshio Ansai, Benjamin F. Dillingham II, Nelson K. Doi, John G. Duarte, Dee Duponte, John Braga Fernandes, William H. Heen, William Hardy Hill, Joe Itagaki, Herbert K. H. Lee, Noboru Miyake, William J. Nobriga, Sakae Takahashi, Wilfred C. Tsukiyama, Peter A. Aduja, George R. Ariyoshi, Elmer F. Cravalho, Masato Doi, O. Vincent Esposito, William E. Fernandes, Yasutaka Fukushima, Joseph R. Garcia, Jr., Stanley I. Hara, Manuel S. Henriques, Robert Leighton Hind, Jr., Daniel K. Inouye, Anna F. Kahanamoku, Charles E. Kauhane, Robert N. Kimura, Raymond M. Kobayashi, Russell K. Kono, Elwell Percy Lydgate, Spark M. Matsunaga, Philip P. Minn, Sumio Nakashima, Steere G. Noda, Manuel G. Paschoal, Hebden Porteus, Akoni Pule, Esther K. Richardson, Toshio Serizawa, David K. Trask, Jr., Toshiharu Yama, Nadao Yoshinaga, Samuel Wilder King, Farrant L. Turner, Demetria T. Heyfron, Defendants.
Docket NumberCiv. No. 1435.
Decision Date10 February 1956

138 F. Supp. 220

John F. DYER, Plaintiff,
v.
KAZUHISA ABE, Toshio Ansai, Benjamin F. Dillingham II, Nelson K. Doi, John G. Duarte, Dee Duponte, John Braga Fernandes, William H. Heen, William Hardy Hill, Joe Itagaki, Herbert K. H. Lee, Noboru Miyake, William J. Nobriga, Sakae Takahashi, Wilfred C. Tsukiyama, Peter A. Aduja, George R. Ariyoshi, Elmer F. Cravalho, Masato Doi, O. Vincent Esposito, William E. Fernandes, Yasutaka Fukushima, Joseph R. Garcia, Jr., Stanley I. Hara, Manuel S. Henriques, Robert Leighton Hind, Jr., Daniel K. Inouye, Anna F. Kahanamoku, Charles E. Kauhane, Robert N. Kimura, Raymond M. Kobayashi, Russell K. Kono, Elwell Percy Lydgate, Spark M. Matsunaga, Philip P. Minn, Sumio Nakashima, Steere G. Noda, Manuel G. Paschoal, Hebden Porteus, Akoni Pule, Esther K. Richardson, Toshio Serizawa, David K. Trask, Jr., Toshiharu Yama, Nadao Yoshinaga, Samuel Wilder King, Farrant L. Turner, Demetria T. Heyfron, Defendants.

Civ. No. 1435.

United States District Court D. Hawaii.

February 10, 1956.


138 F. Supp. 221
COPYRIGHT MATERIAL OMITTED
138 F. Supp. 222
COPYRIGHT MATERIAL OMITTED
138 F. Supp. 223
Hogan, Jamieson, Dyer & Rothwell, John F. Dyer, Honolulu, Hawaii, for plaintiff
138 F. Supp. 224

Edward N. Sylva, Atty. Gen., of Hawaii, Richard K. Sharpless, Asst. Atty. Gen., of Hawaii, Percy K. Mirikitani, Morio Omori, Deputy Attys. Gen., of Hawaii, Richard K. Sharpless, Asst. Atty. Gen., for certain defendants.

Fong, Miho, Choy & Chuck, Honolulu, Hawaii, Katsugo Miho, Honolulu, Hawaii, for certain defendants.

McLAUGHLIN, Chief Judge.

This case presents anew an age old problem of democracy, the "rotten borough." The republican principles of our government call for the equal value of each citizen's vote. An exception exists if a political solution as to geographic location has been written into fundamental law. Unfortunately, in an era where the concept of law over man is heralded as an achievement of our civilization, we find many legislators placing themselves above their fellow citizens in their duty to obey constitutional law. The courts have almost uniformly refused effective redress to voters, mainly relying upon theories of separation of powers and the inability or reluctance of the judiciary to interfere with the legislature. But this is merely an easy way out of a difficult problem. To say something is delicate does not make it immune from the principles of justice. Any court action is important and delicate to the parties involved, as well as to the public, which has a civic interest in the effective functioning of justice. To allow "rotten boroughs" to continue in open contravention of constitutional law, is a direct contradiction of the principles of justice. We are not asked to open the floodgates of the courts to the political problems of the legislature. We are requested to enforce the clear command of the fundamental law which the legislators have sworn to obey.1

The plaintiff is a voter on the Island of Oahu in the Territory of Hawaii. He alleges that, contrary to the Organic Act of Hawaii, 48 U.S.C.A. § 491 et seq., the territorial legislature has not reapportioned itself to adjust to population shifts occurring in Hawaii these past fifty-five years. As a result, plaintiff claims he has been deprived of the equal protection of the laws in his rights of suffrage, of due process of law, and of a right secured him by a law of the United States.

The defendants are the members of the territorial legislature, the Governor of Hawaii, the Secretary of Hawaii, and the United States Treasury Department's disbursing agent. They move to dismiss the action upon the grounds that this Court lacks jurisdiction over the subject matter, and that the complaint fails to state a claim upon which relief can be granted.2 We disagree, as revealed by our oral ruling of December 12, 1955.

The Fifth Amendment of the United States Constitution3 applies to the government of the Territory of Hawaii.4 Implicit within its provisions as

138 F. Supp. 225
applied to a territory is the equal protection of the laws of the Territory.5 Class discrimination in the electoral process would be a denial of due process itself.6

The equal protection of the law is also guaranteed by the Organic Act of Hawaii.7 It is thus unnecessary to decide whether the Fourteenth Amendment8 applies directly to a territory. Its protection to individual citizens does apply.9

Section 55 of the Organic Act provides for periodic reapportionment of the territorial legislature on the basis of the population in each district.10 The purpose of this provision was to insure equality of representation in the legislature. Under the Organic Act multi-member senatorial and representative districts are provided.11 Congress made the first apportionment within these areas.12

Originally geographic representation was roughly fair.13 However, as alleged by the plaintiff, the population has shifted these past years, mainly to Oahu. Without belaboring the obvious, judicial notice can be taken that both branches of the legislature are not

138 F. Supp. 226
evenly apportioned.14 This is in direct violation of the Organic Act which provides for reapportionment "from time to time"15 to cure such a defect. There is no provision for unequal geographic representation in this Act. The lack of a specific date to rearrange the legislative delegation does not cure this violation. There has never been any effective action taken in the history of the Territory. Sufficient time has elapsed to make the original apportionment contrary in law and fact to the Organic Act.16 "Time to time" indisputably requires affirmative action within a span of fifty-five years

The failure of the legislature to obey the fundamental law of Hawaii has resulted in plaintiff's being deprived of the equal protection of the laws of the Territory. Electoral legislation can violate this protective device against territorial action, or inaction, in different ways. It can inherently operate in a discriminatory manner.17 Although fair on its face, it can be used to intentionally discriminate against a class.18

The present apportionment act is no longer fair on its face. Taken in conjunction with today's census figures, it inherently operates to discriminate against a whole class of citizens, the voters of Oahu.19 It is similar in effect to the electoral clause struck down in Lane v. Wilson.20

The deliberate inaction of the legislature has caused one law to have unequal and arbitrary effects throughout Hawaii. Under the same act, a voter in one area has a decided electoral preference over a voter in another region, although all are entitled to equal treatment under the Organic Act.21 This result by non-action has been a purposeful and systematic plan to discriminate against a geographic class of persons. It has been achieved as though a positive statute had been passed to accomplish the same purpose. Biased inaction has had the same result as biased action. It is a denial of the equal protection of the law.

The law in question before us also denies due process of law to the plaintiff. Although equal protection of

138 F. Supp. 227
the law and due process are not always interchangeable, they can overlap.22 Discriminatory legislation may amount to a deprivation of due process.23 As stated before, the failure of the legislature to reapportion itself has had the same effect as if it had pointedly favored one regional class of persons over another regional group, in violation of the Organic Act. The result has been arbitrary discrimination affecting persons entitled to similar treatment. It is a denial of due process.24

Plaintiff's right of action for the deprivation of these fundamental rights is conferred by 17 Stat. 13, as amended, 42 U.S.C.A. § 1983,25 formerly 8 U.S.C. § 43, R.S. § 1979. The jurisdiction of this Court is based upon 68 Stat. 1241, as amended 28 U.S.C. § 1343 (3)26, formerly 28 U.S.C. § 41(14), R.S. § 563(12) and R.S. § 629(16). These statutes should be considered as parallel provisions. They permit the plaintiff to bring a suit for the deprivation of his civil rights.27

Plaintiff also alleges this tribunal has jurisdiction under § 1983 itself. The question presented seems never to have been squarely decided by any court. Some cases have spoken of jurisdiction being conferred by both § 1983 and § 1343(3).28 This appears to be the result of language describing both the right of action and jurisdiction in one sentence. Other decisions mention only § 1983.29 However, they are mainly concerned with the question of whether a

138 F. Supp. 228
claim has been stated, not with jurisdiction. Stapleton v. Mitchell30 states jurisdiction is conferred by § 1983, but cites as authorities cases which base jurisdiction on § 1343(3). The majority of decisions base jurisdiction specifically upon § 1343(3).31 Typical of these cases is Stefanelli v. Minard.32 After stating that § 1983 was the act providing for redress, the Supreme Court founded jurisdiction upon § 1343(3)

Congress does not have to provide a federal forum for every statutory right it creates. Prior to 1875 certain questions involving federal law were tried before state courts. Even today § 1343(3) can limit a federal court's jurisdiction of a statute granting federal protection.33 There is no reason why it could not similarly limit the federal jurisdictional scope of § 1983. Whether it has done so or not is not now before us.34 But we do hold that recovery or relief cannot be had under § 1983 alone, without the jurisdictional basis of § 1343(3).35 Fourteen Stat. 27, as amended, 42 U.S.C.A. § 1988,36 does not aid plaintiff in this

138 F. Supp. 229
regard. It has reference to procedure, not jurisdiction.37

Plaintiff alleges another right of action under the Organic Act of Hawaii. He states that this Act is a federal statute within the meaning of § 1983 and § 1343(3). The essence of this claim is not that the failure of the...

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25 practice notes
  • Brewer v. Hoxie School District No. 46, No. 15510.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 25, 1956
    ...States v. Waddell, 112 U.S. 76, 5 S.Ct. 35, 28 L.Ed. 673; Romero v. Weakley, 9 Cir., 226 F.2d 399; Dyer v. Kazuhisa Abe, D. C. Hawaii, 138 F.Supp. 220. Whether or not the controversy arises under federal law must be determined by the allegations of the complaint and they were obviously draw......
  • Akron Board of Ed. v. State Board of Ed. of Ohio, No. 72-2075.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • January 15, 1974
    ...States v. Waddell, 112 U.S. 76, 5 S.Ct. 35, 28 L.Ed. 673; Romero v. Weakley, 9 Cir., 226 F.2d 399; Dyer v. Kazuhisa Abe, D.C. Hawaii, 138 F.Supp. 220. Brewer v. Hoxie School District No. 46, 238 F.2d 91, 95 (8th Cir. 1956). (Footnotes The legal conclusions concerning standing, set forth abo......
  • Moor v. County of Alameda 8212 10, No. 72
    • United States
    • United States Supreme Court
    • May 14, 1973
    ...449 F.2d 871 (CA2 1971), vacated and remanded on other grounds, 409 U.S. 75, 93 S.Ct. 259, 34 L.Ed.2d 290 (1972); Dyer v. Kazuhisa Abe, 138 F.Supp. 220, 228—229 (Haw.1956), rev'd on other grounds, 256 F.2d 728 (CA9 1958); Schatte v. International Alliance of Theatrical Stage Employees and M......
  • WMCA, Inc. v. Simon
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 11, 1962
    ...the Federal Judiciary was not going to become embroiled in such controversy. * * *" In Dyer v. Kazuhisa ABE, D.C.D.Hawaii, 1956, 138 F.Supp. 220, 233-234, McLaughlin, Chief Judge, "* * * Colegrove v. Green definitely decided that a case involving voting districts was a judiciable question o......
  • Request a trial to view additional results
25 cases
  • Akron Board of Ed. v. State Board of Ed. of Ohio, No. 72-2075.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • January 15, 1974
    ...States v. Waddell, 112 U.S. 76, 5 S.Ct. 35, 28 L.Ed. 673; Romero v. Weakley, 9 Cir., 226 F.2d 399; Dyer v. Kazuhisa Abe, D.C. Hawaii, 138 F.Supp. 220. Brewer v. Hoxie School District No. 46, 238 F.2d 91, 95 (8th Cir. 1956). (Footnotes The legal conclusions concerning standing, set forth abo......
  • Moor v. County of Alameda 8212 10, No. 72
    • United States
    • United States Supreme Court
    • May 14, 1973
    ...449 F.2d 871 (CA2 1971), vacated and remanded on other grounds, 409 U.S. 75, 93 S.Ct. 259, 34 L.Ed.2d 290 (1972); Dyer v. Kazuhisa Abe, 138 F.Supp. 220, 228—229 (Haw.1956), rev'd on other grounds, 256 F.2d 728 (CA9 1958); Schatte v. International Alliance of Theatrical Stage Employees and M......
  • WMCA, Inc. v. Simon
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 11, 1962
    ...the Federal Judiciary was not going to become embroiled in such controversy. * * *" In Dyer v. Kazuhisa ABE, D.C.D.Hawaii, 1956, 138 F.Supp. 220, 233-234, McLaughlin, Chief Judge, "* * * Colegrove v. Green definitely decided that a case involving voting districts was a judiciable question o......
  • Baskin v. Parker, No. 76-4071
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 24, 1979
    ...449 F.2d 871 (CA2 1971), vacated and remanded on other grounds, 409 U.S. 75, 93 S.Ct. 259, 34 L.Ed.2d 290 (1972); Dyer v. Kazuhisa Abe, 138 F.Supp. 220, 228-229 (Haw.1956), rev'd on other grounds, 256 F.2d 728 (CA9 1958); Schatte v. International Alliance of Theatrical State Employees and M......
  • Request a trial to view additional results

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