Moolenaar v. Todman

• Decision Date: 18 September 1970
• Docket Number: Civ. No. 301-1970.
• Citation: 317 F. Supp. 226
• Parties: Jessica Tutein MOOLENAAR and Julio Miranda and Janet G. Upson, Plaintiffs, v. Henrita TODMAN, Supervisor of Elections, et al., Defendants, and Legislature of the Virgin Islands, John L. Maduro and A. David Puritz, Intervening Defendants.
• Court: U.S. District Court — Virgin Islands

317 F. Supp. 226

Jessica Tutein MOOLENAAR and Julio Miranda and Janet G. Upson, Plaintiffs, v. Henrita TODMAN, Supervisor of Elections, et al., Defendants and Legislature of the Virgin Islands, John L. Maduro and A. David Puritz, Intervening Defendants.

Civ. No. 301-1970.

District Court, Virgin Islands, D. St. Croix.

September 18, 1970.

COPYRIGHT MATERIAL OMITTED

Ronald H. Tonkin, Christiansted, V. I., for plaintiffs.

Peter J. O'Dea, Atty. Gen. of Virgin Islands, Charlotte Amalie, V. I., for defendants.

Verne A. Hodge, Charlotte Amalie, V. I., and Alfred L. Scanlan, Washington, D. C., of counsel, for intervening defendants.

MEMORANDUM

CHRISTIAN, Chief Judge.

Plaintiffs, qualified electors of the territory of the Virgin Islands, residing in the electoral District of St. Croix, have brought this class action seeking declaratory as well as injunctive relief. They have joined as defendants the Supervisor of Elections, the Commissioner of Finance, the Attorney General and Budget Director of the territorial government, and the individual members of Boards of Election for the Districts of St. Thomas-St. John and St. Croix.

Jurisdiction is allegedly grounded on the Civil Rights Act, 42 U.S.C. §§ 1983 and 1988 and additionally under 28 U.S.C. § 1343. The declaratory relief is sought pursuant to 28 U.S.C. §§ 2201, 2202.

Plaintiffs ask that a three-judge district court be convened, pursuant to the provisions of 28 U.S.C. § 2281 et. seq., and that a court so convened

(a) declare § 5(b) of the Revised Organic Act of the Virgin Islands, 48 U.S.C. § 1571(b) (Supp.V, 1969) and all territorial statutes enacted pursuant thereto invalid for repugnance to the "due process" clause of the Fifth and Fourteenth Amendments, and the "equal protection" clause of the Fourteenth Amendment to the United States Constitution;

(b) restrain and enjoin defendants from conducting any primary or general election until the Legislature has been legally apportioned;

(c) restrain the territorial officers — defendants from performing any of their duties in connection with any election until proper apportionment has been accomplished;

(d) decree the proper reapportionment of the Legislature of the Virgin Islands, should that body fail to do so; and

(e) retain jurisdiction of this cause until such reapportionment of the Legislature has been effected as will insure to electors in the allegedly more populous District of St. Croix the rights guaranteed them by the Constitution of the United States.

At the outset, I find that this Court has jurisdiction to hear and determine this cause. Title 28, U.S.C. § 2281 et seq. provides for the convening of a three-judge court when certain specified suits are filed in a district court. In Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368, 69 S.Ct. 606, 93 L.Ed. 741 (1949), the United States Supreme Court held that the predecessor of § 2281¹ did not apply to the then Territory of Hawaii. It was not only the omission of the word "territory" from the statute that led the court to this conclusion. The purpose of Congress in enacting the three-judge court statute was to show deference to the sovereign states by providing a special safeguard against unnecessary interference by the federal courts with their legislative enactments. The court noted that this purpose does not apply to a territorial government, which is a creature of Congress.² The court also expressed an interest in strict construction of the three-judge court statute in order to protect its docket from direct appeals.³Stainback clearly applies to the District Court of the Virgin Islands and prohibits it from convening a three-judge court under § 2281. To the reasons for this result stated by the Supreme Court in Stainback, I would add that the District Court of the Virgin Islands is not a "district court" within the meaning of § 2281. § 451 of Title 28 makes clear that the terms "district court," "district court of the United States," or "judge" of such court have application only to those courts established in ch. 5 of Title 28 of the United States Code. Since the District Court of the Virgin Islands is not there included, I conclude that the provisions of ch. 155 of Title 28 of the United States Code (providing for three-judge district courts) do not apply to the Virgin Islands.

This Court convened specially on Saturday, September 5, 1970, at 4:30 p.m. to hear argument on behalf of plaintiffs for a preliminary injunction as well as the arguments of defendants in opposition thereto. At the conclusion of this hearing, the Court declined to grant the temporary relief sought, but set the matter for plenary hearing on September 11, 1970. At that hearing, the Court, on its own motion, ordered the Virgin Islands Legislature joined as a party defendant under R. 24(a) of the Federal Rules of Civil Procedure.⁴ John L. Maduro and A. David Puritz were, on motion, likewise permitted to intervene as defendants. This cause having come on for final hearing, and the same having been concluded, the matter is now before the Court for its decision.

Counsel for plaintiffs, at oral argument, withdrew the allegation of the complaint that their constitutional rights were being abridged and denied by the provisions of § 5(b) of the Revised Organic Act of the Virgin Islands. In so doing, counsel conceded, as indeed he was compelled to, that if the Congress chose to increase the membership of the Legislature of the Virgin Islands from 11 to 15 members and to leave the apportionment of those 15 seats to the said Legislature, the Congress was well within its rights in so doing, for Art. IV, § 3 of the United States Constitution charges it with the duty of making "* * * all needful Rules and Regulations respecting the Territory or other Property belonging to the United States."

We deal then only with the enactments of the Legislature of the Virgin Islands which seek or purport to apportion the Legislature of the Virgin Islands pursuant to § 5(b) of the Revised Organic Act of the Virgin Islands.

The gravamen of plaintiffs' complaint is that the Legislature, as apportioned by that body, is weighted in favor of the lesser populated District of St. Thomas-St. John as against the more heavily populated District of St. Croix; that the establishment of two legislative districts and subsequent appointment of seven senators to St. Thomas-St. John and six to St. Croix was arbitrary, capricious, without reference to any logical or reasonable formula, or to population, and resulted in underrepresentation for the District of St. Croix with corresponding overrepresentation for St. Thomas-St. John. It is by this claimed discrimination that plaintiffs assert the abovementioned violation of their rights guaranteed to them under the Constitution of the United States as extended to this territory by § 3 of the Revised Organic Act of the Virgin Islands.

Prior to amendment in 1966, § 5(b) of the Revised Organic Act of 1954⁵ divided the Virgin Islands into the three legislative districts of St. Thomas, St. John and St. Croix and apportioned the eleven senators comprising the Virgin Islands' unicameral legislature as follows: 2 senators to St. Thomas, 2 senators to St. Croix, 1 senator to St. John and 6 senators elected at large. In 1966, Congress amended § 5(b)⁶ to add four senators and enable the Virgin Islands Legislature to apportion itself. The three legislative districts, as well as the at large "district," were perpetuated, and Congress temporarily apportioned fifteen seats as follows: 5 for the District of St. Thomas, 5 for the District of St. Croix, 1 for the District of St. John and 4 at large.

In 1967, the Virgin Islands Legislature appointed a Commission on Reapportionment.⁷ After a special census, public hearing, study and deliberation, the Commission submitted a preliminary "summary report" to the Virgin Islands Legislature. The summary report proposed the plan for consolidation of the Districts of St. John and St. Thomas and for reapportionment of the Legislature, which was subsequently enacted.⁸ Later the Commission issued its final report which set out the statistical and legal bases for the plan in fuller detail. Briefly, the report showed that the allotment of 7 seats to the District of St. Thomas-St. John, 53.8% of the 13 seats assigned to the two legislative Districts, was based on the following population statistics for the District of St. Thomas-St. John: 53.5% of total votes cast in 1966 general election; 54.8% of the total Virgin Islands population as determined by the 1960 United States Census; 55.4% of the total population and 53.5% of United States Citizens as determined by the Commission's own 1967-68 special census.⁹ At trial, plaintiffs did not persuasively challenge the accuracy of these figures, though additional statistics based on records of registered voters were offered showing that the District of St. Thomas-St. John had the following portions of the Virgin Islands registered voters: 1964, 51.2%; 1966, 50.6%; 1968, 49%; 1970, (based on incomplete figures), 51.6%.¹⁰ The use of these various measures of population raises questions yet to be fully resolved by the United States Supreme Court.¹¹ Whether an apportionment that falls within a range of figures calculated from different population bases will satisfy the constitutional dictum that "as nearly as is practicable one man's vote * * * is to be worth as much as another's"¹² is yet to be decided. However, under no reasonable reading of the statistics before the Court, or the Legislature, would the District of St. Croix be entitled to more than equal representation with St. Thomas.¹³ In view of the disposition in this case restoring the separate Districts of St. John and St. Thomas, resulting in an allocation of equal numbers of seats to the Districts of St. Thomas and St. Croix, the Court finds it unnecessary to consider plaintiffs' objections to the Legislature's apportionment plan.

The only...