Lein v. Sathre, Civ. No. 424.

• Decision Date: 31 May 1962
• Docket Number: Civ. No. 424.
• Citation: 205 F. Supp. 536
• Parties: Ray LEIN, John Hove, John M. Murphy, Walter Durkop, and Russell Duncan, Plaintiffs, v. P. O. SATHRE, Leslie R. Burgum, Ben Meier, Ben Wolfe and Arthur Link, and Ben Meier, Secretary of State for the State of North Dakota, Defendants.
• Court: U.S. District Court — District of South Dakota

205 F. Supp. 536

Ray LEIN, John Hove, John M. Murphy, Walter Durkop, and Russell Duncan, Plaintiffs, v. P. O. SATHRE, Leslie R. Burgum, Ben Meier, Ben Wolfe and Arthur Link, and Ben Meier, Secretary of State for the State of North Dakota, Defendants.

Civ. No. 424.

United States District Court D. North Dakota, Southwestern Division.

May 31, 1962.

E. T. Conmy and E. T. Conmy, Jr., of Conmy, Conmy & Feste, Fargo, N. D., for plaintiffs.

William R. Pearce, of Cox, Pearce, Engebretson, Murray, Atkinson & Gunness, Bismarck, N. D., as Sp. Asst. Atty. Gen., and Paul M. Sand, Asst. Atty. Gen., State of North Dakota, for defendants.

Before VOGEL, Circuit Judge, and REGISTER and DAVIES, District Judges.

PER CURIAM.

This Court initially heard oral arguments and considered briefs of the respective parties in January of this year. The plaintiffs, by their complaint, challenged the plan apportioning members of the House of Representatives of this state, which plan had been formulated and adopted by the "re-apportionment group" consisting of the defendants herein, pursuant to the authority conferred upon it by the provisions of Section 35 of the Constitution of the State of North Dakota. Said complaint alleges that the "re-apportionment is unconstitutional and void as contrary to the provisions of the Constitutions of the United States of America and the State of North Dakota" * * * "in that it abridges and decimates their privileges as citizens, deprives them of liberty without due process of law, denies them equal protection of the law" * * * and * * * "in a substantial measure disenfranchises them and abridges the value of their vote". Plaintiffs herein further alleged "That by reason of the action of the defendants in making" such re-apportionment "the Constitutional and legal rights of plaintiffs have been violated and a serious judiciable controversy has arisen". The prayer for relief asks that this Court take jurisdiction, that a special three-judge court be called to hear and determine the action, as provided by applicable law, and declare the rights of the plaintiffs to be as follows:

"(A) That the re-apportionment made as shown in Exhibit `A' abridges and decimates plaintiffs' privileges as citizens, deprives them of liberty without due process of law, denies them equal protection of the law and in a substantial measure disenfranchises them, all contrary to and in violation of the Constitutions of the United States of America and the State of North Dakota.

"(B) That as further and necessary relief, the Defendant Ben Meier as Secretary of State be restrained from giving notice of state elections, furnishing forms for nominations, receiving filings of candidates, preparing ballots and instructions, certifying of nominations or elections and from doing any other act necessary to the holding of elections for members of the House of Representatives of the North Dakota State Legislature until such time as reapportionment is made in accordance with the Constitution.

"(C) For such other and further relief as to the Court may seem just, equitable and proper."

Following the hearing and consideration of briefs as heretofore referred to, this Court (one member dissenting) stayed further proceedings subject to our further order. Lein et al. v. Sathre et al., D.C., 201 F.Supp. 535.

In our first opinion, 201 F.Supp. 535, we stated at page 542:

"* * * We believe that court (Supreme Court of North Dakota) should have the opportunity of passing on ALL QUESTIONS herein before further proceedings are had in this Court." (Emphasis supplied.)

This is precisely what the Supreme Court of the United States did in the very recent case of Scholle v. Hare, 82 S.Ct. 910, 8 L.Ed.2d 1, in remanding to the Supreme Court of Michigan a similar question so that court could be "the first to consider the merits of the federal constitutional claim free from any doubt of its justiciability." It is significant that Scholle was decided subsequent to the decision of the Supreme Court in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, which determined that such a question as here involved is judicially cognizable. The Supreme Court in Scholle indicated that such question is not only appropriate for consideration by a state court, but that state courts have an obligation to enforce and protect rights created by the Federal Constitution.

Subsequent to our January opinion, plaintiffs sought relief in the Supreme Court of North Dakota. The situation being such that it for the first time did have jurisdiction to hear and determine the controversy on its merits, said Court promptly and without hesitation or "judicial reluctance" took the case and promptly decided it. It determined that the plan for re-apportionment promulgated by the "re-apportionment group" was unconstitutional for violating the mandate of Section 35 of the North Dakota Constitution to apportion according to population of the several districts, and was void. It further determined that the power of that "group" to act on behalf of the Legislature expired at the end of ninety days following the adjournment of the last Legislative Assembly, and that it was the duty of the Legislature to reapportion and that such duty is a continuing one. It further held that there had been no apportionment made under Section 35 of the North Dakota Constitution; that the last apportionment made, and the one under which legislative elections since have been held, is Chapter 7, Session Laws of North Dakota, 1931; and that said Chapter 7 continues to be the law governing the apportionment under which legislative elections are to be held until it is superseded by a valid apportionment made pursuant to Section 35 or pursuant to a further amendment of the Constitution of the State of North Dakota. Lein et al. v. Sathre et al., N.D., 113 N.W.2d 679.

As a part of the relief prayed for in their case before the Supreme Court of North Dakota, as here, plaintiffs asked that Court to restrain the Secretary of State from doing any act necessary to the holding of elections for members of the House of Representatives until such time as a reapportionment is made in accordance with the North Dakota Constitution. Such relief was denied.

Plaintiffs are now before us on a Petition filed on the 17th day of April, 1962, in which they complain and allege that the North Dakota Supreme Court failed and refused to grant to them the relief sought in paragraphs (B) and (C) of their prayer, as hereinbefore quoted. In said Petition, the plaintiffs allege that "* * * if such requested relief * * had been granted, the Governor of the State would have been compelled to call the legislature into Special Session for the purpose of making a new apportionment". The relief asked for in the Petition, in addition to the granting of an immediate hearing of the Petition, is as follows:

"2. That the Court find and hold that the defendant group has the mandatory duty to make a new reapportionment within ninety days after March 9, 1962, the date when the reapportionment previously made by them was declared void.

"3. That this Court restrain the defendant Secretary of State, as prayed for in (B) of the prayer of the complaint, or restrain him from doing any act necessary to the holding of and (sic) election for members of the House of Representatives of the North Dakota State Legislature until such time as a new reapportionment is made.

"4. That plaintiffs have such other and further relief as to the Court may seem just, equitable and proper."

It therefore appears that two specific propositions are placed before us for determination. The first concerns the alleged "mandatory duty" of the defendant group to make a new apportionment within ninety days after March 9, 1962; the second involves the granting of a restraining order as to the Secretary of State, as above quoted.

In our first opinion we suggested, among questions of vital interest and concern to the electors of North Dakota, the following: "Was the constitutional authority of the apportionment group finally terminated with the issuance of the proclamation? Was the life of such group limited to the 90 day period following adjournment of the 1961 Legislative Assembly? Does such group have present authority to reconvene and adopt and proclaim another apportionment plan?" The Supreme Court of North Dakota, in Lein v. Sathre, supra, clearly and unequivocally decided such questions. It said:

"While the power of the group to act on behalf of the Legislature expired at the end of the 90-day period, the duty imposed upon the Legislature to reapportion is a continuing one."

Hence, it has been finally determined by the Supreme Court of this state that the power of said group has expired. This question involves the interpretation of Section 35 of the North Dakota Constitution, and a determination by the Supreme Court upon such issue is final and binding upon us. We are therefore powerless to grant that portion of the relief prayed for by petitioners which relates to a determination by us that said "group" has a mandatory duty to make a new reapportionment, and the same is denied.

It will be noted that the relief as sought by petitioners in their second proposition advanced here was asked from the Supreme Court of North Dakota in Lein v. Sathre, supra, and specifically denied. With reference thereto, that Court said:

"We have no reason to believe that the Secretary of State will not act in accordance with law and consistent with this opinion without direction or restraint on the part of this Court. The petition for a restraining order is denied."

No reason for such denial, other than is quoted, is expressed. However, the foregoing statement followed and was a part of the same paragraph of said opinion in which the following statements are made:

"The Thirty-seventh Session of the Legislature took no action. The action taken by the group designated by Section 35 to apportion in event the

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