Grisbaum v. McKeithen, Civ. A. No. 71-1343
| Decision Date | 11 August 1971 |
| Docket Number | 71-2142.,Civ. A. No. 71-1343 |
| Citation | 336 F. Supp. 267 |
| Parties | Charles GRISBAUM, Jr. v. John J. McKEITHEN et al. Lynn E. TOMES v. JEFFERSON PARISH COUNCIL. |
| Court | U.S. District Court — Eastern District of Louisiana |
COPYRIGHT MATERIAL OMITTED
Ferdinand J. Kleppner, Metairie, La., for plaintiff, Charles Grisbaum, Jr.
Patrick E. Carr, Metairie, La., for plaintiff, Lynn E. Tomes.
Louis B. Porterie and W. Eric Lundin, III, New Orleans, La., for defendant, Harold L. Molaison.
James O. Manning, Lionel R. Collins, and Roy L. Price, Asst. Jefferson Parish Attys., Gretna, La., for defendant Jefferson Parish Council.
INTERIM JUDGMENT
After conference held between all counsel, and upon consideration of all memoranda and statistical data and other matters submitted to the Court by counsel, and for the reasons set forth in the detailed REASONS FOR INTERIM JUDGMENT, the Court rules as follows:
1. It is the judgment of this Court that the election of July 31, 1971 to amend the Home Rule Charter of Jefferson Parish so as to provide for a Council of either nine or thirteen persons was and is invalid because of the failure of the Jefferson Parish Council to provide the required sixty-day period between the adoption of the resolution providing for the election and the date of the said election.
2. It is the judgment of this Court that the present apportionment of the Jefferson Parish Council is constitutionally impermissible because of the disproportionate populations of the four councilmanic districts of Jefferson Parish.
3. It is the judgment of this Court that it is empowered to choose among various plans for reapportionment to be submitted by the interested parties no later than 10:00 a. m. on August 13, 1971 and that the Court will select the plan which it deems most adequately meets constitutional requirements.
4. It is further ordered that any reapportionment plans strictly conform to Section 2.03 of the Jefferson Parish Charter, which provides for a seven member Council.
The Court is called upon to deal with the means of proper apportionment of the Jefferson Parish Council which, allegedly, is constituted in such a fashion as to violate equal protection standards of the Fourteenth Amendment of the United States Constitution.
Presently before the Court are two consolidated suits relating to this matter. Grisbaum v. McKeithen et al. seeks to compel reapportionment of the seven member Jefferson Parish Council. Tomes v. Jefferson Parish Council seeks to invalidate a recent election by which citizens in Jefferson Parish voted to change the structure of parish government by creation of a nine member council. Both suits are the progeny of long standing inactivity by Jefferson Parish to effectuate a constitutionally valid plan of apportionment.
An examination of prior local activities is helpful in explaining the necessity of this involvement by the Federal Court in the apportionment of Jefferson Parish. On May 14 of this year, plaintiff Grisbaum filed suit in this Court seeking to re-district the various seats of the parish council in accordance with constitutional mandates. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L. Ed.2d 506 (1964); Avery v. Midland County, Texas, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968). In anticipation of inevitable court action, and in an attempt to correct manifest inequities in the present system of apportionment, the Jefferson Parish Council initiated plans on May 31 to enlarge the size of the council and to reapportion the districts therein in accordance with constitutional guidelines.
The composition of the Jefferson Parish Council, as well as that of the individual parish districts, was incorporated into the Home Rule Charter of Jefferson Parish.1 Accordingly, any change involving a redistricting required an amendment to the Charter pursuant to Section 6.07:
In an effort to properly amend the Charter prior to the upcoming election of district representatives in November, the council adopted Emergency Ordinance No. 10152 which provided that an election be held on July 31, 1971, and that:
". . . at the said election there shall be submitted to all registered voters qualified and entitled to vote at said election under the Constitution and laws of the State of Louisiana, a plan or plans of reapportionment (affecting Sections 2.02 and 2.03 of the Jefferson Parish Home Rule Charter) of Jefferson Parish as determined by subsequent action of the Jefferson Parish Council after a public hearing to be held after proper legal delays and public notice."2
Subsequently, on June 18, 1971 the Council adopted Resolution No. 18443 which set forth two proposed amendments to the Charter — one proposition providing for a nine member council, the other calling for a thirteen member council. The Council's adoption of the Resolution preceded the July 31 election by only 43 days.
In consideration of the foregoing factors, the Court must determine (1) the validity of the election, and (2) the constitutionality of the present apportionment of councilmanic districts within Jefferson Parish.
The citizens of Jefferson Parish voted on July 31, 1971 to increase the size of the Jefferson Parish Council from seven members to nine members. The Court holds this election invalid for failure of the Council to observe the procedural requirements of Section 6.07 of the Parish Charter. More specifically, the Council allowed only 43 days from the date of adopting the reapportionment resolution until the date of the election; Section 6.07 of the Charter plainly states that the Council shall call an election not less than 60 days "after it adopts the resolution". It is impossible to circumvent the sixty day waiting period required for amending of the Charter, and it is the Council's failure to follow this procedure which renders the July 31 election invalid.
The resolution of the previous issue compels consideration of the constitutionality of the present apportionment of councilmanic districts within Jefferson Parish. It has been nearly a decade since the historic Supreme Court announcement that apportionment statutes which violated concepts of equal protection presented a "justiciable" controversy. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Reynolds v. Sims, supra, was the initial implementation case requiring that representatives must be distributed in accordance with population distribution "as nearly as practical". Avery v. Midland County, supra, applied this principle to units of local government. The United States Supreme Court has consistently held that the controlling criterion in apportionment controversies is that the Constitution permits no substantial variation from equal population as a basis for districting legislative bodies. Preisler v. Mayor of City of St. Louis, 303 F. Supp. 1071, E.D.Mo. (1969); Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969); Avery v. Midland County, supra. Needless to say, these authorities are pertinent to councilmanic districts as well as other units of local government. Ellis v. Mayor and City Council of Baltimore, 352 F.2d 123 (4 Cir., 1965); Keil v. Schorr, 282 F. Supp. 608, D.Del. (1968).
It is the opinion of this Court that the present apportionment structure of the Jefferson Parish Council is constitutionally impermissible. Such holding should be no surprise to the Council which has itself belatedly sought to correct the constitutional deficiencies of its apportionment.
According to the Advance Report of the 1970 United States Census of Population, the population of each of the councilmanic districts of Jefferson Parish together with the number of representatives presently representing each district is as follows:
COUNCILMANIC TOTAL NUMBER
DISTRICTS WARDS POPULATION OF
COUNCILMEN
1 1, 2 & 3 53,789 1
2 4, 5, 6 & 11 72,008 1
3 7 & 9 95,686 1
4 8 & 10 116,085 1
East Bank
"at large" 7, 8, 9 & 10 211,771 1
West Bank 1, 2, 3, 4
"at large" 5, 6 & 11 125,797 1
1, 2, 3, 4
"at large" 1
It appears that the population of District 4 is more than double that of District 1, yet both districts have one representative. Under no conditions can such a high variance be sanctioned. In Kirkpatrick v. Preisler, supra, the Supreme Court refused to set a fixed numerical standard for reapportionment cases. Though rejecting a de minimus standard, the Court required "a good faith effort to achieve precise mathematical equality" and found that a 5.9% variation was "not unavoidable". Other percentages which have been held impermissible are: 24.7%, Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 28 L.Ed.2d 363 (1971); 13%, Wells v. Rockefeller, 394 U.S. 542, 89 S.Ct. 1234, 22 L.Ed.2d 535 (1969); 16%, Ely v. Klahr, 403 U.S. 108, 91 S.Ct. 1803, 29 L.Ed.2d 352 (1971).
The percentage of variation is determined by dividing the total unit population by the number of districts therein. The resultant dividend is the ideal...
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