Jackman v. Bodine

• Decision Date: 25 November 1964
• Docket Number: Nos. A--34,A--1,s. A--34
• Parties: Christopher JACKMAN and Winfield Chasmar, Jr., Plaintiffs-Appellants, v. John M. BODINE, County Clerk of Warren County; Henry B. Carr, County Clerk of Sussex County; Thomas J. Grieves, County Clerk of Salem County; Bergen N. Carter, Jr., County Clerk of Hunterdon County; Henry F. Anderson, County Clerk of Cape May County; Robert J. Burkhardt, Secretary of State of the State of New Jersey; Frank S. Farley, President of the Senate of the State of New Jersey, and John W. Davis, Speaker of the General Assembly of the State of New Jersey, Defendants-Respondents. Sept. Term--63,Sept. Term--64. Supreme Court of New Jersey
• Court: New Jersey Supreme Court

Page 453

43 N.J. 453

205 A.2d 713

Christopher JACKMAN and Winfield Chasmar, Jr., Plaintiffs-Appellants, v. John M. BODINE, County Clerk of Warren County; Henry B Carr, County Clerk of Sussex County; Thomas J. Grieves County Clerk of Salem County; Bergen N. Carter, Jr., County Clerk of Hunterdon County; Henry F. Anderson, County Clerk of Cape May County; Robert J. Burkhardt, Secretary of State of the State of New Jersey; Frank S. Farley, President of the Senate of the State of New Jersey, and John W. Davis Speaker of the General Assembly of the State of New Jersey Defendants-Respondents.

Nos. A--34 Sept. Term--63, A--1 Sept. Term--64. Supreme Court of New Jersey.

Argued Nov. 6, 1963.

Reargued Oct. 5, 1964.

Decided Nov. 25, 1964.

David Friedland and Jacob Friedland, Jersey City (Nov. 6, 1963 argument), for appellants (Edward A. Cohen, Jersey City, of counsel, Friedland, Schneider & Friedland, Jersey City, attorneys).

Wesley L. Lance and James Dorment, Jr., Jersey City (Nov. 6, 1963 argument), for respondent President of the Senate (O'Mara, Schumann, Davis & Lynch, Jersey City, of counsel).

Walter H. Jones, Hackensack (Oct. 5, 1964 argument), for respondent Speaker of the General Assembly (Marvin H. Gladstone, Hackensack, on the brief).

John T. Madden, Newton (Oct. 5, 1964 argument), and William Martin Cox, Newton (Nov. 6, 1963 argument), for respondent County Clerk of Sussex County (Dolan & Dolan, Newton, attorneys).

Arthur J. Sills, Atty. Gen., (Oct. 5, 1964 argument), for respondent Secretary of State (Alan B. Handler, First Asst. Atty. Gen., of counsel and on the brief), Theodore I. Botter, First Asst. Atty. Gen. (Nov. 6, 1963 argument), for respondents Secretary of State and Speaker of the General Assembly.

The opinion of the court was delivered by

WEINTRAUB, Chief Justice.

In Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), the Supreme Court of the United States held justiciable the question whether the basis established by a State for election to its legislature denies equal protection of the law in violation of the Fourteenth Amendment to the Federal Constitution. It held also that the federal courts had jurisdiction of the controversy.

The majority opinion expressly refrained from stating a test to measure compliance with the equal protection provision. A view upon that topic appeared but obliquely in the majority's discussion of the claim that the lack of manageable judicial standards made the issue political and nonjusticiable. In that connection the majority opinion said (369 U.S., at p. 226, 82 S.Ct. at p. 715, 7 L.Ed.2d, at p. 691):

'* * * Judicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if on the particular facts they must, that a discrimination reflects No policy, but simply arbitrary and capricious action.'

In the matter now before us, plaintiffs sought an adjudication that the provisions of our State Constitution fixing the composition of the State Legislature run afoul of the equal protection clause. On motion the trial court held those provisions are valid because they reflect a rational policy, thus meeting the standard of the equal protection clause suggested by the above quotation from Baker v. Carr. Jackman v. Bodine, 78 N.J.Super. 414, 188 A.2d 642 (Ch.Div.1963).

We certified the ensuing appeal before the Appellate Division considered it. The matter was argued before us on November 6, 1963. Aware of causes pending in the Supreme Court of the United States, we withheld decision in the hope that the opinions in those matters would spell out the demands of equal protection in this area. On June 15, 1964 the Supreme Court decided Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506; WMCA, 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; Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620; Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964). We then called for and received further briefs and argument with respect to the impact of those cases.

I.

Counsel for the Speaker of the General Assembly asks that we stay our hand until the Legislature has had an opportunity to act. We do not see how we can do nothing or how such abstention would help.

There are two basic questions involved in this litigation. One is whether the legislative article of our State Constitution is invalid in the respects alleged by plaintiffs. The other, if such invalidity is found, is what must be done to meet the federal demand. Counsel's request that we abstain for the time being may be appropriate with respect to the second question, as to which we shall say more later in this opinion. But as to the first question, we cannot refuse to decide a controversy that is fully accrued and justiciable. Nor, if we delayed, could the legislators conclude the quarrel. If they unanimously resolved the Legislature was validly constituted, surely plaintiffs would not accept their judgment. And if the legislators unanimously resolved their branch was not validly constituted, some citizen or taxpayer would likely demand the Court's judgment upon the issue; indeed, counsel for the President of the Senate urges the Legislature is properly constituted. Hence that critical question would likely persist until settled judicially.

II.

In Reynolds v. Sims, supra, 377 U.S., at p. 568, 84 S.Ct., at p. 1385, 12 L.Ed.2d, at p. 531, the Court, accepting as applicable the aphorism 'one person, one vote,' concluded:

'We hold that, as a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis. Simply stated, an individual's right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State. * * *'

These two sentences are fused in the companion opinions into the single statement that both houses of a bicameral state legislature must be apportioned 'substantially on a population basis.' See, e.g., WMCA v. Lomenzo, supra, 377 U.S., at p. 652, 84 S.Ct., at p. 1428, 12 L.Ed.2d, at p. 580.

A.

Ours is a bicameral legislature. Art. IV, § I of the Constitution of 1947 provides that 'The legislative power shall be vested in a Senate and General Assembly.' Section II, par. 1 reads:

'The Senate shall be composed of one Senator from each county, elected by the legally qualified voters of the county, for a term beginning at noon of the second Tuesday in January next following his election and ending at noon of the second Tuesday in January four years thereafter.'

Section III, par. 1 reads:

'The General Assembly shall be composed of members elected biennially by the legally qualified voters of the counties, respectively, for terms beginning at noon of the second Tuesday in January next following their election and ending at noon of the second Tuesday in January two years thereafter. The members of the General Assembly shall be apportioned amount the several counties as nearly as may be according to the number of their inhabitants, but each county shall at all times be entitled to one member and the whole number of members shall never exceed sixty. The present apportionment shall continue until the next census of the United States shall have been taken. Apportionment of the members of the General Assembly shall be made by the Legislature at the first session after the next and every subsequent census, and each apportionment when made shall remain unaltered until the following census shall have been taken.'

It is at once evident that these provisions of our Constitution, on their face, do not meet the quoted test of Reynolds v. Sims. As to the General Assembly, the apportionment is basically upon population, and it may readily be urged that the apportionment is substantially on population notwithstanding that each county is entitled to one member and the whole number of members may not exceed 60. ¹ But as to the Senate, it is perfectly plain that the apportionment basis is indifferent to population. This is true in the literal terms of the constitutional provision; it is equally true in its actual operation because the counties vary widely in population. ²

If the Senate is malapportioned, we need not consider whether the General Assembly could pass muster. In Lucas the Supreme Court held that if one house is malapportioned, the deficiency vitiates the entire legislative structure, obviating the need for considering whether the second house could withstand an attack upon it if it were the sole legislative body. 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d, at pp. 646--47. The reason is that a court cannot fairly assume the people would have intended the one house to survive as the lone repository of the legislative power. Hence, if the Senate is fatally constituted, an expression by us upon the General Assembly would be wholly advisory, there being no remedial proposal before us continuing a legislative body structured as is the General Assembly.

In view of the allocation of one senator to each county, none of the parties before us suggests that our Legislature literally meets the quoted standard of Reynolds v. Sims, but counsel for the President of the Senate, while conceding that much, does contend that our constitutional plan is nonetheless beyond the thrust of Reynolds v. Sims for other reasons to which we now turn.

B.

The principal argument upon which Reynolds is sought to be distinguished runs this way: our legislative plan is essentially the same as that of the Congress and is republican in form; the conclusion...