Grills v. Branigin
| Decision Date | 20 May 1968 |
| Docket Number | No. IP 64-C-101.,IP 64-C-101. |
| Citation | 284 F. Supp. 176 |
| Parties | Nelson G. GRILLS, Plaintiff, Dorothy C. Duddleston, John P. Gallagher, Miles H. Marshall, Louis Y. Mundy, Joseph W. Summers, Intervening Plaintiffs, v. Roger D. BRANIGIN, Edwin M. S. Steers, Thurman M. DeMoss, as Members of the State Election Board of Indiana, Defendants, United States of America, Intervenor. |
| Court | U.S. District Court — Southern District of Indiana |
Nelson G. Grills, pro se.
Beuna Chaney and Hansford C. Mann, Terre Haute, Ind., Leslie Duvall and William H. Sparrenberger, Indianapolis, Ind., for Dorothy Duddleston, John P. Gallagher, Miles H. Marshall and Louis Y. Mundy, intervening plaintiffs.
Marshall F. Kizer, Plymouth, Ind., Patrick E. Chavis, Jr., John O. Moss, Indianapolis, Ind., for Joseph W. Summers, intervening plaintiff.
John J. Dillon, Atty. Gen., of the State of Indiana, and Charles S. White, Chief Counsel, Staff, Indianapolis, Ind., for Roger D. Branigin, Edwin M. S. Steers, Thurman M. DeMoss, as members of the State Election Board of Indiana, defendants.
Edwin L. Weisel, Jr., Asst. U. S. Atty. Gen., Dept. of Justice, Washington, D. C., K. Edwin Applegate, U. S. Dist. Atty., Indianapolis, Ind., for the United States.
Before KNOCH, Circuit Judge, and HOLDER, and DILLIN, District Judges.
Judgment Affirmed May 20, 1968. See 88 S.Ct. 1666.
The previous history of the above entitled action in this Court is set out in the opinion of the Court filed February 17, 1966, reported as Grills v. Branigin, D. C., 255 F.Supp. 155. Such previous opinion held, Judge Holder dissenting, that Chapter 205 of the Acts of 1965, enacted by the General Assembly of Indiana and reapportioning Indiana's eleven congressional districts, was constitutional within the provisions of Article 1, § 2 of the Constitution of the United States.
The intervening plaintiffs, Dorothy C. Duddleston, et al., thereafter appealed such decision to the Supreme Court of the United States. On January 9, 1967, that Court announced its opinion, Duddleston et al. v. Grills et al., 385 U.S. 455, 87 S.Ct. 611, 17 L.Ed.2d 508, vacating the judgment and remanding the case for further consideration in light of Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501, decided the same day, Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481, and Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506. No timely petition for rehearing was filed, and the mandate of the Court has now been issued.
This Court, having given further consideration to the case in the light of such mandate and of the authorities cited therein, is now of the opinion and therefore finds that said Chapter 205 of the Acts of 1965 is unconstitutional and void by reason of excessive population variances between the congressional districts therein constituted.
A fortiori the Court further finds that Chapter 174 of the Acts of 1941, enacted by the General Assembly of Indiana and being the congressional apportionment act in existence immediately prior to the enactment of said Chapter 205 of the Acts of 1965, is likewise unconstitutional and void.
The Court takes judicial notice of the fact that Thurman M. DeMoss has replaced James E. Noland as a member of the State Election Board of Indiana, and that the said Thurman M. DeMoss, Roger D. Branigin and Edwin M. S. Steers now comprise the membership of such Board. The Court therefore, on its own motion, now substitutes the said Thurman M. DeMoss for the said James E. Noland as a party defendant herein.
The General Assembly of Indiana, now meeting in regular session, has adopted House Concurrent Resolution No. 6, and has caused a copy of the same to be forwarded to the Court in an informal manner. The resolution requests this Court to supply the General Assembly with "definitive guidelines by which said body can accurately interpret the intent of Article 1 Section 1 of the United States Constitution." We mention such resolution, despite the fact that it is not and could not properly become a part of the record in this case, as a courtesy due the legislative branch of government of the State of Indiana. We are unable to comply with the resolution for the reason that the federal courts have consistently declined to give advisory opinions since the beginning of the Republic. Hayburn's Case, 1796, 2 Dall. 409, 1 L.Ed. 436.
The Court takes judicial notice of the fact that elections were conducted in November, 1966, in each of the eleven congressional districts established by Chapter 205 of the Acts of 1965, and that the congressmen elected at such election were duly seated and are now serving in the Congress of the United States. Nothing herein contained should be construed as casting any doubt upon the validity of their respective elections, nor upon their right to serve out the terms for which they were elected.
In view of the findings herein made, it is considered and ordered that the defendants Roger D. Branigin, Edwin M. S. Steers and Thurman M. DeMoss, as members of the State Election Board of Indiana, and their successors in office, be, and they are hereby restrained and enjoined from conducting any further elections pursuant to said Chapter 205 of the Acts of 1965, or Chapter 174 of the Acts of 1941, or any previous Act of the General Assembly of Indiana purporting to establish districts for the election of congressmen from such State.
The Court retains jurisdiction of this action for the purpose of passing upon any future claims of unconstitutionality made by plaintiffs against any future congressional apportionment adopted by the General Assembly of the State of Indiana, if any, and for such other action in the premises as may be necessary.
This action was commenced March 2, 1964 by Nelson G. Grills contesting the constitutionality of the congressional apportionment in Indiana by the Indiana General Assembly. The statute challenged was Chapter 174 of the 1941 Acts of the Indiana General Assembly.
The second phase of the action commenced with the enactment into law of Chapter 205 of the 1965 Acts of the Indiana General Assembly pending Mr. Grills' action. Chapter 205 created new congressional districts. Thereafter, the intervening petitioners entered the pending action and challenged the constitutionality of the new law. This Court adjudged the intervening petitioners were wrong and upheld the constitutionality of the law. Grills v. Branigin, D. C., 255 F. Supp. 155. This ruling was vacated by this Court after the United States Supreme Court on January 9, 1967 remanded the case to this Court for further consideration upon the intervening petitioners appealing this Court's ruling. Duddleston et al. v. Grills et al., 385 U.S. 455, 87 S.Ct. 611, 17 L.Ed.2d 508.
This Court in February of 1967 entered its judgment. Chapter 205 of the 1965 Acts of the Indiana General Assembly was held unconstitutional and void by reason of excessive population variances between the congressional districts therein constituted. Chapter 174 of the 1941 Acts of the Indiana General Assembly was also found unconstitutional and void. The defendants and their successors in office were enjoined from conducting elections pursuant to the voided Acts, or any previous Act of the Indiana General Assembly purporting to establish congressional districts for Indiana. The Court retained jurisdiction of the action for the purpose of passing upon any future claims of unconstitutionality made by plaintiffs against any future congressional apportionment adopted by the Indiana General Assembly, if any, and for such other action in the premises as may be necessary.
The Indiana General Assembly was in its regular session at the time of this judgment. It adjourned sine die and no congressional districting law was enacted although bills were offered, considered and failed to pass. That since the adjournment there has been no further session of said Assembly, nor has the Governor of Indiana issued any call for any special session of said Assembly, nor does he at this time intend to issue any call for any special session. It is highly improbable that said Assembly, if called into session, could agree on any constitutional plan for dividing the State of Indiana into congressional districts. There are vacancies by reason of death and resignation of members of the said Assembly and the Governor of Indiana has not issued writs of election to fill vacancies as provided by Article 5, Section 19 of the Indiana Constitution. If a special session was called, the counties and citizens of those counties in this class action would be unrepresented in the said Assembly session in the creation of congresional districts. Without such representation, their right to petition the said Assembly in session under the Indiana Constitution is impaired and less effective than the citizens of other counties with representation in the said Assembly. It appears impossible for the State of Indiana to enact constitutional legislation creating congressional districts in time for the general election of 1968. The time table under the election laws of Indiana for the declaration of candidacy for the nomination for the office of Representative for Congress by districts provides for the filing on February 27, 1968 and within the succeeding thirty (30) days in order for such candidate to be voted upon in the primary on May 7, 1968.
This Court's Judgment of February 1967 enjoined the defendants from conducting any further elections pursuant to Chapter 205 of the 1965 Acts of the Indiana General Assembly and under any prior congressional districting law, and the Court retained jurisdiction of the action for such other action in the premises as may be necessary. The retention of jurisdiction was in accordance with the requests of the plaintiff and original intervening plaintiffs that they be given all such other, further...
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Mallory v. State of Ohio, C-2-95-381.
...and hereby takes judicial notice of the census data contained therein, as well as all other pertinent census data. See Grills v. Branigin, 284 F.Supp. 176, 180 (S.D.Ind.), aff'd, 391 U.S. 364, 88 S.Ct. 1666, 20 L.Ed.2d 641 5. According to the 1990 Census, the total population of Ohio is 10,......
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...for the term "Legislature." There is, however, one lower federal court case that has addressed the question, Grills v. Branigin, 284 F.Supp. 176, 178 (S.D.Ind.), aff'd, 391 U.S. 364, 88 S.Ct. 1666, 20 L.Ed.2d 641 (1968). This case involved a challenge to several statutes passed by the India......
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