Mac Govern v. Connolly

• Decision Date: 11 June 1986
• Docket Number: Civ. A. No. 86-1075-C.
• Citation: 637 F. Supp. 111
• Parties: John Mac GOVERN, Raymond Shamie, Constance Henry, Joseph Malone, Casper Serijan, Alice Serijan, Donna Bowman, Robert Lerner, George Lane, and John T. Delaney v. Michael J. CONNOLLY, in his Capacity as Secretary of the Commonwealth of Massachusetts, John A. Brennan, Jr., in his Capacity as Senate Chairman of the Joint Special Committee on Redistricting, James T. Brett, in his Capacity as House Chairman of the Joint Special Committee on Redistricting, and the Joint Special Committee on Redistricting.
• Court: U.S. District Court — District of Massachusetts

637 F. Supp. 111

John Mac GOVERN, Raymond Shamie, Constance Henry, Joseph Malone, Casper Serijan, Alice Serijan, Donna Bowman, Robert Lerner, George Lane, and John T. Delaney v. Michael J. CONNOLLY, in his Capacity as Secretary of the Commonwealth of Massachusetts, John A. Brennan, Jr., in his Capacity as Senate Chairman of the Joint Special Committee on Redistricting, James T. Brett, in his Capacity as House Chairman of the Joint Special Committee on Redistricting, and the Joint Special Committee on Redistricting.

Civ. A. No. 86-1075-C.

United States District Court, D. Massachusetts.

June 11, 1986.

Frank L. McNamara Jr., Julia K. O'Neill, Vena, McNamara, Truelove & Lahey, Boston, Mass., for plaintiffs.

Thomas R. Kiley, First Asst. Atty. Gen., Alexander G. Gray, Boston, Mass., for defendants.

Before TORRUELLA, United States Circuit Judge, CAFFREY, Chief United States District Judge, and ZOBEL, United States District Judge.

OPINION

PER CURIAM.

This action seeks to reapportion the legislative districts of the Commonwealth of Massachusetts before the 1986 primary and general elections. Plaintiffs are ten registered voters who are residents of seven different Massachusetts cities and towns. They have brought this action challenging the legislative plan (the "Plan") now in effect for apportioning statewide senate and representative districts, on the ground that it violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution by failing to divide the Commonwealth into equally populous legislative districts according to the most recent and most accurate census figures available. Plaintiffs also claim that Article CI of the Articles of Amendment to the Commonwealth's Constitution violates the Equal Protection Clause¹ because it prescribes an unreasonable mechanism for the periodic readjustment of the Commonwealth's legislative districts.

Defendants are Michael J. Connolly, Secretary of the Commonwealth, John A. Brennan, Jr., and James T. Brett, Senate and House Chairmen of the Joint Special Committee on Redistricting, respectively, and the Joint Committee on Redistricting as an entity. They have moved to dismiss the action under Fed.R.Civ.P. Rule 12(b)(1) and (6)² on the grounds that plaintiffs' claims are: (1) barred by the Eleventh Amendment so that subject-matter jurisdiction is lacking; (2) "constitutionally insubstantial;" and (3) filed so late that they are either time-barred or precluded by the doctrine of laches.

Procedural History

Plaintiffs filed the original complaint in this action on April 3, 1986. On April 9 they filed a motion for a preliminary injunction seeking to postpone the April 29 deadline by which state legislative candidates must file nomination papers, and to compel state officials to draw up, by June 1, 1986, a new legislative apportionment scheme based on 1985 census figures. Plaintiffs filed a motion to convene a three-judge court on April 22, 1986, which was granted. Defendants filed their motion to dismiss on the same day, and on June 3, 1986 this three-judge panel heard argument on defendants' motion to dismiss plaintiffs' complaint.³

The Motion to Dismiss

Defendants have moved to dismiss the complaint in this action under Rule 12(b)(6), Fed.R.Civ.P., for "failure to state a claim upon which relief can be granted."⁴ Construing the complaint in the light most favorable to the plaintiffs and taking its allegations as true, see Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Carr v. Learner, 547 F.2d 135, 137 (1st Cir.1976), the facts underlying plaintiffs' claims are the following.

Article CI of the Articles of Amendment to the Constitution of the Commonwealth prescribes the method by which state legislative districts are drawn. The House of Representatives is to consist of one-hundred sixty (160), and the Senate of forty (40), members drawn from a set of representative and senatorial districts, respectively, containing "an equal number of inhabitants, as nearly as possible." Those districts are apportioned on the basis of a state census taken "in the year nineteen hundred and seventy-five and every tenth year thereafter." Article CI provides that legislative districts are to be fixed for "the ten year period beginning with the first Wednesday in the fourth January following the taking of the census."

The representative and senatorial district plans now in effect were drawn in 1977 based on 1975 population figures. The 1985 census, measuring the number of inhabitants in all Massachusetts cities and towns as of January 1, 1985, has been conducted as prescribed by statute. Although the Secretary of the Commonwealth has yet to certify final population figures, plaintiffs allege that nearly all individual cities and towns have by now turned in a certifiable count. Under Article CI, a new apportionment plan based on the 1985 census must be completed by January of the 1988 election year. A federal census was taken in 1980, the results of which, according to plaintiffs, can be correlated to state legislative districts.⁵

Plaintiffs' amended complaint challenges the Commonwealth's existing districting plan, in five counts, with reference to the three different bodies of census data. Count One claims that the existing apportionment of representative districts is unconstitutional, because when drawn in 1977 based on 1975 figures the plan allowed a maximum population variance of as much as 20 percent between districts and produced actual variances of 19.99 percent.⁶ Counts Two and Three allege that existing state representative and senatorial district plans are unconstitutional when measured against available 1985 census figures. Count Two claims that based on 1985 numbers the difference in population between the most and the least populous representative districts is 77.49 percent; and Count Three alleges that for state senatorial districts that variance is 49.72 percent. Counts Four and Five challenge existing districts based on 1980 federal census figures. Count Four alleges a 63.63 percent total population variance among representative districts, and Count Five alleges a 26.18 percent variance among senatorial districts. The claim that these variations are constitutionally unacceptable relies on Brown v. Thomson, 462 U.S. 835, 103 S.Ct. 2690, 77 L.Ed.2d 214 (1983), in which the Supreme Court stated the general rule that an apportionment plan with disparities in population greater than 10 percent "creates a prima facie case of discrimination and therefore must be justified by the state." Id. at 842-43, 103 S.Ct. at 2695-96 (citing Swann v. Adams, 385 U.S. 440, 444, 87 S.Ct. 569, 572, 17 L.Ed.2d 501 (1967)).

The standard for determining which, if any, of these counts will survive a motion to dismiss is unambiguous. A court may dismiss a complaint "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2233, 81 L.Ed.2d 59 (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)). In the context of a challenge to a state districting plan, the query is whether the suit raises a substantial claim. Simkins v. Gressette, 495 F.Supp. 1075, 1080 (D.S.C.1980).⁷ The test has been aptly framed by the Court of Appeals for the Fourth Circuit:

Insubstantiality in the claim may appear because of the absence of federal jurisdiction, lack of substantive merit in the constitutional claim, or because injunctive relief is otherwise unavailable. (footnotes omitted.)

Maryland Citizens for a Representative General Assembly v. Governor of Maryland, 429 F.2d 606, 611 (4th Cir.1970); see also, Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 1296, 8 L.Ed.2d 794 (1962); Simkins v. Gressette, at 1080.

By this test Counts Two through Five of plaintiffs' complaint may be quickly dispatched. All quarrel in one way or another with the Commonwealth's decennial approach to reapportionment. They run afoul, therefore, of the very law plaintiffs must use to challenge the Commonwealth's districting scheme. As plaintiffs have urged, Reynolds v. Sims stands squarely for the proposition that "the Equal Protection Clause requires that seats in both houses of a bicameral state legislature must be apportioned on a population basis." Id., 377 U.S. at 586, 84 S.Ct. at 1394. But Reynolds declares with equal force that "legislative reapportionment is primarily a matter of legislative consideration and determination, and that judicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so." Id. at 586, 84 S.Ct. at 1394. On this ground alone, Counts Two and Three — which seek reapportionment based on the 1985 census — are premature. The Commonwealth cannot be said to have "failed to reapportion ... in a timely manner" based on the 1985 census when that reapportionment is not due to be complete until January of 1988.

Counts Two and Three founder not only on a general theory of deference to the legislature, but also, with Counts Four and Five, on Reynolds' specific endorsement of decennial reapportionment. In considering problems concerning legislative redistricting, the Supreme Court has read the Equal Protection Clause forcefully, but also practically. The Court in Reynolds made plain that the Equal Protection Clause does not require:

daily, monthly, annual or biennial reapportionment, so long as a state has a reasonably conceived plan for periodic readjustment of legislative representation. While we do not intend to indicate that decennial reapportionment is a constitutional requisite, compliance with such an approach would clearly meet the minimal requirements for maintaining a reasonably current scheme of legislative

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