Holshouser v. Scott, Civ. A. No. C-24-G-70.

• Decision Date: 29 December 1971
• Docket Number: Civ. A. No. C-24-G-70.
• Citation: 335 F. Supp. 928
• Court: U.S. District Court — Middle District of North Carolina
• Parties: James E. HOLSHOUSER, Jr., Plaintiff, v. Robert W. SCOTT, Governor of the State of North Carolina, et al., Defendants.

335 F. Supp. 928

James E. HOLSHOUSER, Jr., Plaintiff, v. Robert W. SCOTT, Governor of the State of North Carolina, et al., Defendants.

Civ. A. No. C-24-G-70.

United States District Court, M. D. North Carolina, Greensboro Division.

Argued November 19, 1971.

Decided December 29, 1971.

Charles E. Dameron, Greensboro, N. C., for plaintiff.

Robert Morgan, North Carolina, Atty. Gen., James F. Bullock, North Carolina Deputy Atty. Gen., James L. Blackburn, Raleigh, N. C., Staff Atty., for defendants, Robert W. Scott, Governor of the State of North Carolina, Thad Eure, Secretary of State of North Carolina, Robert Morgan, Atty. Gen. of the State of North Carolina, Brian Scott, Ernest J. House, L. H. Jones, Hiram H. Ward and Jerry S. Alvis, Members of the State Board of Elections of the State of North Carolina.

Z. H. Howerton, Jr., and Ralph A. Walker, Greensboro, N. C., for defendants, Z. H. Howerton, Jr., C. Clifford Frazier, Jr., and Perry S. Keziah, Members of the County Board of Elections of Guilford County, North Carolina.

Welch Jordan and William L. Stocks, Greensboro, N. C., for defendant, Joseph P. Shore, Clerk of Superior Court of Guilford County, North Carolina.

Before CRAVEN, Circuit Judge, and GORDON and JONES, District Judges.

WOODROW WILSON JONES, Chief District Judge.

Plaintiff seeks injunctive and declaratory relief against the defendants under the provisions of 42 U.S.C.A. §§ 1983 and 1988; and 28 U.S.C.A. §§ 1343(4) and 2201, contending that the manner of the election of regular Superior Court Judges in North Carolina denies him the equal protection of the laws as guaranteed by the 14th Amendment to the Constitution of the United States. The facts have been agreed upon by stipulation and all parties have moved for summary judgment.

The plaintiff is a citizen and voter of the 24th judicial district of North Carolina and brings this action on behalf of himself and all other citizens and voters so situated. The defendants are state and local officials charged with the duty of executing the state laws pertaining to the election of Superior Court Judges.

The Constitution of North Carolina directs the General Assembly to divide the state into a convenient number of Superior Court judicial districts and to provide for the election of one or more regular Superior Court Judges for each district who shall reside in the district for which he is elected.¹ It decrees that the principle of rotating judges among the districts is a salutary practice and shall be observed. In order to carry out this purpose the General Assembly is empowered to divide the State into a number of judicial divisions and the Chief Justice of the Supreme Court is authorized to assign the judges among the districts and divisions.² These judges have statewide jurisdiction and duties,³ and are assigned by law certain local duties in their respective districts, such as the appointment of magistrates and the filling of vacancies in the office of the Clerk of Court.⁴ Their salaries are paid by the State. The Constitution directs that they shall be elected by the qualified voters, and hold office for a term of eight years. They may be elected by the qualified voters of the State, or of their respective districts, as the General Assembly may prescribe.⁵

In obedience to these constitutional commands the General Assembly divided the State into four (4) divisions and thirty (30) judicial districts. Each district has at least one judge and some have as many as three.⁶ The General Assembly has prescribed that the regular judges shall be nominated in a primary election conducted in their respective districts but shall be elected in the general election by statewide vote. The plaintiff contends that this election procedure denies him the equal protection of the laws. While he avers in his complaint that both the North Carolina constitutional and statutory provisions pertaining to the election of these judges are violative of his federal constitutional rights, he abandons his attack upon the state constitution and concentrates on the state statutes.⁷ There can be no doubt as to the validity of the provisions of the North Carolina Constitution requiring the election of Superior Court judges by districts or statewide as prescribed by the legislature; or that the state be divided into divisions and districts and judges rotate among the districts; or that they reside in their respective districts. Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656; Fortson v. Dorsey, 379 U.S. 433, 85 S. Ct. 498, 13 L.Ed.2d 401. Thus, the only issue for determination by this court is, as plaintiff now contends, whether the state statutes requiring regular Superior Court Judges to be nominated in the primary election by districts and elected in the general election by statewide vote denies the plaintiff and others similarly situated the equal protection of the laws. We answer the issue in the negative and hold the statutes to be valid.

The plaintiff contends that these judges must be nominated and elected by either a district-wide or statewide primary and general election and that a combination of the two as embodied in the statutes in question denies the voters of the state, individually and collectively, the equal protection of the laws. He relies upon the cases of Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L. Ed.2d 663; Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821; Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481; Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506; Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45, and Hadley v. Junior College District, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45, and contends that the election procedure established by these statutes violates the "one man, one vote" principle declared by the court in these cases. It is noted that all of these cases dealt with the election of the representatives of the people—officials who make laws, levy and collect taxes, and generally manage and govern people. Baker and Reynolds dealt with the apportionment of the legislatures of the States of Tennessee and Alabama. Gray was concerned with the Georgia County Unit System whereby senators and congressmen were elected, and Wesberry dealt with congressional apportionment. Avery was concerned with County Commissioners with "general governmental powers over the entire geographic area served by the body", and Hadley dealt with the apportionment and election of Junior College District Trustees who have the power to "levy and collect taxes, issue bonds, * * * acquire property by condemnation, and in general manage the operations of the junior college, their powers are equivalent, for apportionment purposes, to those exercised by the county commissioners in Avery." None of these cases dealt with the apportionment or election of the judiciary. We find no case where the Supreme Court, a Circuit Court, or a District Court has applied the "one man, one vote" principle or rule to the judiciary. To hold with the plaintiff here and invalidate the election procedure permitted by these statutes, this court would be plowing new ground, and extending the "one man, one vote" principle far beyond the fields heretofore entered by the Supreme Court. The only case called to our attention which dealt with the specific question involved in this cause is a three-judge decision in Stokes v. Fortson, 234 F. Supp. 575 (N.D.Ga.1964), in which it was held that the one man, one vote doctrine does not extend to the judiciary. The facts of the Stokes case are identical to the case at bar, and the Georgia Constitution and statutes required the election of regular Superior Court Judges by statewide vote but permitted their nomination by circuits. The plaintiff, a citizen and voter of one of the circuits, brought the action complaining that he was denied the equal protection of the laws because the choice of the voters of the circuit may be overridden by the state electorate. The court held:

"In the first place, we are unable to discern any discrimination among voters or unequal weighting of votes of the sort condemned by the one man-one vote principle. Indeed, plaintiffs concede that there is no discrimination in either the nomination process or the election process considered separately. The vote of each person in the statewide election is equal; the electors of every judicial circuit are permitted to vote for the nominees from every judicial circuit. Also, the vote of each person in the judicial circuit is equal in the nominating process. Since every man's vote counts the same, the fact that the statewide electorate may override the choice of the circuit in no way offends the principles of Baker v. Carr and its progeny. See Alsup v. Mayhall, S.D.Ala. 1962, 208 F.Supp. 713.

"Secondly, even assuming some disparity in voting power, the one man-one vote doctrine, applicable as it now is to selection of legislative and executive officials, does not extend to the judiciary. Manifestly, judges and prosecutors are not representatives in the same sense as are legislators or the executive. Their function is to administer the law, not to espouse the cause of a particular constituency. Moreover there is no way to harmonize selection of these officials on a pure population standard with the diversity in type and number of cases which will arise in various localities, or with the varying abilities of judges and prosecutors to dispatch the business of the courts. An effort to apply a population standard to the judiciary would, in the end, fall of its own weight."

Two other cases are cited which deal with the general issue involved here. Buchanan v. Rhodes, 249 F.Supp 860 (N.D.Ohio 1960), appeal dismissed, 385 U.S. 3, 87 S.Ct. 33, 17 L.Ed.2d 3; and New York State Association of Trial Lawyers v. Rockefeller, 267 F.Supp. 148 (S.D.N.Y.1967). In Buchanan, the plaintiffs, litigants and residents of a populous county in Ohio,...