Jackman v. Bodine

• Decision Date: 21 February 1963
• Docket Number: No. C--2293,C--2293
• Citation: 78 N.J.Super. 414,188 A.2d 642
• Parties: Christopher JACKMAN and Winfield Chasmar, Jr., Plaintiffs, 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.
• Court: New Jersey Superior Court

Page 414

78 N.J.Super. 414

188 A.2d 642

Christopher JACKMAN and Winfield Chasmar, Jr., Plaintiffs, 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.

No. C--2293.

Superior Court of New Jersey, Chancery Division.

Feb. 21, 1963.

Jacob Friedland, Jersey City (David Friedland, Newark, and Edward Cohen, appearing), for plaintiffs

Archie Roth, Blairstown, for defendant John M. Bodine.

Dolan & Dolan (John T. Madden, Newton, appearing), for defendant Henry B. Carr.

Friedman & Telsey (George S. Friedman, Salem, appearing), for defendant Thomas J. Grieves.

Boswell & Boswell (John E. Boswell, Ocean City, appearing), for defendant Henry F. Anderson.

Arthur J. Sills, Atty. Gen. (Theodore I. Botter, First Asst. Atty. Gen., appearing), for defendants Robert J. Burkhardt and John W. Davis.

Wesley L. Lance, Clinton, and O'Mara, Schumann, Davis & Lynch, Jersey City (James Dorment, Jr., Montclair, appearing), for defendant Frank S. Farley.

PASHMAN, J.S.C.

Plaintiffs Christopher Jackman, a resident of West New York, New Jersey (Hudson County), and Winfield Chasmar, Jr., a resident of Verona, New Jersey (Essex County), instituted this action 'for themselves and on behalf of all other taxpayers, property owners and legal voters similarly situated' seeking, Inter alia, an adjudication that the provisions in the New Jersey Constitution pertaining to the composition of this State's General Assembly and Senate violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the Federal Constitution. More N.J.Const., Art. IV, § III par. 1, provides that each county shall at all times be entitled to one representative in the General Assembly. Count two of the complaint alleges that this constitutes 'a substantial and unconstitutional deviation from the total-population or total-voter standard required by the Fourteenth Amendment to the United States Constitution.' The limitation of the total membership of the General Assembly to 60 persons, together with the guarantee to the smallest county that it shall have one member in the General Assembly, is said to debase and dilute the votes of individuals residing in the more populous counties and to subject them to taxation without representation.

specifically, the plaintiffs allege that N.J.Const., Art. IV, § II, par. 1, which directs that the [188 A.2d 644] State Senate 'shall be composed of one Senator from each county,' embodies an invidiously discriminatory geographic classification which arbitrarily denies fair and adequate legislative representation to a majority of the voters in this State. The one county-one senator form of representation is alleged to disregard population, land, area and economic interests. Finally, plaintiffs claim in connection with the State Senate, that the senatorial districts envisioned by that article do not represent or reflect any rational or legally permissible state policy.

In addition to the first two counts, the plaintiffs, in a third count of their complaint, ask the court to declare N.J.Const., Art. IX, as repugnant to the Fourteenth Amendment on the ground that since the voters may not propose amendments by either popular referendum or initiative--Article IX provides, in substance, that all amendments to the New Jersey State Constitution must originate in either the Senate or General Assembly--the plaintiffs and all individuals similarly situated have been arbitrarily deprived of an equal right to participate in changing the nature and form of their state government.

The defendants in this case are the county clerks of Warren, Sussex, Salem, Hunterdon and Cape May Counties, and the Secretary of State, the President of the Senate and the Speaker of the General Assembly of the State of New Jersey.

It was stipulated that in case of a vacancy or change in office the suit would be considered as one against the particular office or officeholder, as the case may be, at the time of judgment. They dispute at the outset the right of the plaintiffs to be awarded any affirmative relief in this action, stating, with certain unimportant exceptions as between the defendants, that the matter presented for disposition involves a 'political question' over which the court has no jurisdiction; and that, in any event, there is no basis for concluding that the constitutional provisions under attack either reflect or foster an arbitrary impairment of voting rights.

In order to obtain an early resolution of the constitutional issues, the Attorney General of the State of New Jersey has moved to dismiss the plaintiffs' complaint for failure to state a justiciable cause of action or, in the alternative, for summary judgment pursuant to R.R. 4:58--1 et seq. Comprehensive legal memoranda have been submitted by the parties and an opportunity has been afforded all parties in interest to verbally present their respective positions.

The case Sub judice represents, in part at least, a response to the United States Supreme Court's decision in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, (1962), which, according to one observer, has 'catalyzed a new political synthesis that was already straining, so to speak, to come into being.' McCloskey, 'Foreword: The Reapportionment Case,' 76 Harv.L.Rev. 54, 57 (1962). Cf. Asbury Park Press Inc. v. Woolley, 33 N.J. 1, 161 A.2d 705 (1960). Since each of the issues in the case must, of necessity, touch on some phase of the Baker decision, no better or more logical starting point exists than a comprehensive scrutinization of that case which has produced a 'short-term response which has been nothing short of astonishing.' McCloskey, op. cit. supra, at p. 56.

The plaintiffs in Baker were Tennessee voters who instituted an action in the Federal District Court under 42 U.S.C., §§ 1983 and 1988, claiming that the Tennessee Apportionment Act of 1901 operated to arbitrarily deny them, and others similarly situated, equal protection of the laws as The United States Supreme Court, in an opinion by Mr. Justice Brennan, reversed and remanded, holding that (1) the District Court possessed jurisdiction over the subject matter since the complaint involved a case arising under the Equal Protection Clause of the Federal Constitution; (2) plaintiffs-appellants had standing to challenge the Tennessee apportionment statute since they sought to protect or vindicate their rights to have an equal status with voters in all counties free from arbitrary state action; and (3) a justiciable cause of action was stated by the plaintiffs' claim that their voting rights had been arbitrarily impaired by virtue of the Tennessee legislature's failure to reapportion since 1901. Baker v. Carr, supra.

provided for and guaranteed them by the Fourteenth Amendment of the United States Constitution. The substance of the plaintiffs' constitutional claim was that the Tennessee legislature had failed, since 1901, to reapportion decennially both of its houses despite, and in violation of, express provisions of the Tennessee Constitution which prescribed apportionment of representatives according to the number of qualified voters in each county subject to a ten-year reapportionment adjustment, if necessary. The District Court found that the case presented a 'question of distribution of political strength for legislative purposes,' 179 F.Supp. 824, 826 (M.D.Tenn.1961), and dismissed the complaint for (a) failure to state a claim upon which relief could be granted, and (b) lack of subject-matter jurisdiction.

Subsequent decisions in other jurisdictions have intimated, relying upon a purported abstract holding of Baker v. Carr, that Baker requires that either or both houses of a state legislature Must, to some extent, be apportioned on the basis of population. See, E.g., Toombs v. Fortson, 205 F.Supp. 248 (N.D.Ga.1962). In my opinion, they have misconstrued the decision in Baker v. Carr. As was said most succinctly in Sobel v. Adams, 208 F.Supp. 316, 321 (S.D.Fla.1962) 'It is not required that, in all events, either or both houses of a bicameral legislature must be apportioned upon a population basis of either exact or approximate equality of representation. It is only when the discrimination is invidious or lacking in rationality that it clashes with the Equal Protection Clause of the Fourteenth Amendment. Mr. Justice Clark suggests that there must be a plan that follows a rational policy. 369 U.S. 186, 258 (82 S.Ct. 691, 7 L.Ed.2d 663). Mr. Justice Douglas, in his concurring opinion in Baker v. Carr, notes that 'Universal equality is not the test; there is room for weighting.' Mr. Justice Douglas cites Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563, for a statement of the rule that 'the prohibition of the Equal Protection Clause goes on further than the invidious discrimination.' 369 U.S. 186, 244--245, 82 S.Ct. 691, 724.'

Plaintiffs argue that the Fourteenth Amendment Does require Consideration of population differentials Re senatorial districts, relying, to a great extent, upon the decision of a three-judge Federal District Court in Sims v. Frink, 208 F.Supp. 431 (M.D.N.D.Ala.1962). In Sims the court first noted that the Alabama Constitution required representation in both houses according to population. An amendment was proposed which provided for one senator from each of 67 counties which, said the court, 'would serve to make the discrimination in the Senate even more invidious than at present.' 208 F.Supp., at p. 438. The court continued:

'The only conceivable rationalization of this...