Moss v. Burkhart

• Decision Date: 17 July 1963
• Docket Number: Civ. No. 9130.
• Citation: 220 F. Supp. 149
• Parties: Harry R. MOSS, Plaintiff, v. William A. BURKHART, State Treasurer et al., Defendants.
• Court: U.S. District Court — Western District of Oklahoma

220 F. Supp. 149

Harry R. MOSS, Plaintiff, v. William A. BURKHART, State Treasurer et al., Defendants.

Civ. No. 9130.

United States District Court W. D. Oklahoma.

July 17, 1963.

Sid White, Oklahoma City, Okl., for plaintiff.

Otjen, Carter, Huddleston & Otjen, Enid, Okl., V. P. Crowe, Trimble B. Latting, Oklahoma City, Okl., U. Simpson Tate, Wewoka, Okl., Amos T. Hall, Tulsa, Okl., E. Melvin Porter, John Wagner, Delmer Stagner, Fred Hansen, Norman Reynolds, Oklahoma City, Okl., Jim A. Rinehart, El Reno, Okl., Leon S. Hirsh, Oklahoma City, Okl., Robert Blackstock, Bristow, Okl., G. D. Spradlin, Herbert F. Hewett, Oklahoma City, Okl., Richard K. McGee, Tulsa, Okl., Tom Tate, House of Representatives, for defendants.

Before MURRAH, Circuit Judge, and RIZLEY and DAUGHERTY, District Judges.

PER CURIAM.

This matter came on for further hearing on March 8, 1963, pursuant to Order of August 3, 1962, 207 F.Supp. 885. The plaintiff Moss, appeared by his attorney, Mr. Sid White. Mr. Norman Reynolds, who represented the Governor when these proceedings were commenced, appeared pro se and with Mr. G. T. Spradling, attorney for the Council Of Democratic Neighborhood Clubs. Mr. Delmer Stagner, who represented Mr. William Burkhart, State Treasurer, when these proceedings were commenced, appeared for Mr. Burkhart, individually, as an intervening plaintiff. Mr. Charles Nesbitt, Attorney General, who has succeeded to office since the August hearing, and his First Assistant, Mr. W. J. Monroe, appeared representing the present State Treasurer, Cowboy "Pink" Williams, substitute defendant for Mr. Burkhart; Mr. S. F. Shaw, State Auditor, substitute defendant for Mr. Andy Anderson; the members of the Oklahoma Tax Commission, who were original defendants and now compose the Commission; and, the present members of the State Election Board, substitute defendants for the original defendant members. The present Governor of the State, who succeeded to his office since the commencement of the proceedings, did not appear in person or by counsel. His predecessor having been made a party, and having participated in the proceedings, the present Governor is automatically substituted as a party, upon succession to the office. The intervening State Senators and the parties intervening as Oklahomans For Local Government, appeared by their attorneys, Mr. James Rinehart, Senator Walt Allen, Mr. Leon Hirsh, and Mr. James C. Harkin. Mr. Frank Carter appeared for the Oklahoma Farm Bureau and Mr. Lewis H. Munn. Mr. Richard McGee was allowed to intervene for Mrs. Phyllis P. Brodski, a taxpayer and registered voter. Mr. Tom Tate appeared, as a member of the House of Representatives, and filed a Memorandum. Mr. U. Simpson Tate appeared as attorney for A. Willie James, J. W. Simmons, J. W. Tyler and Amos T. Hall, as interested parties, and has filed Requested Findings Of Fact and Conclusions Of Law. The Congress Of Parents And Teachers, and The League Of Women Voters filed separate briefs amicus curiae, in support of their respective plans for reapportionment.

Pursuant to the August, 1962 hearing, on Motion of the intervening Senators and Oklahomans For Local Government, to alter and amend the interlocutory decree of June 19, 1962, the Court did clarify the decree to apply to the elections of 1964 and all future elections following the 1962 election, which was then in being. Upon consideration of the remedies urged upon the Court at the August hearing, for redress of the deprivation or impairment of voting rights, vouchsafed to the plaintiff and his class by the Fourteenth Amendment, the Court decided to defer further action to the 1963 general session of the Oklahoma Legislature, to be convened early in the following January. Further hearing on the remedies to be afforded the aggrieved class, was accordingly passed until March 8, 1963.

In the extraordinary circumstances, it was deemed appropriate to promulgate some guidelines or standards which, in the judgment of the Court, would insure compliance with the equal protection of the laws, with respect to the exercise of suffrage rights for the election of members of both branches of the Oklahoma Legislature. Consistent with our previously declared fundamental principle of apportionment based on substantial numerical equality, as firmly enunciated in the Oklahoma Constitution, and our concept of the requirements of the Fourteenth Amendment, we stated that the House of Representatives should be reapportioned in accordance with the mandate of the Oklahoma Constitution, except as to the ceilings established in Section 10(d), Article V for populous counties. As to that, we were of the view that the arbitrary restrictions thus imposed, were invidiously discriminatory against the plaintiff and his class, hence, constitutionally intolerable. We left the matter of forming Legislative Districts among the counties, for both the House and the Senate, to the discretion of the Legislature, subject only to the requirement of the Oklahoma Constitution and the Fourteenth Amendment with respect to substantial numerical equality and contiguity, "* * * so that each voter of the state will have approximately the same power and influence in electing members of the two Houses of the Legislature and in shaping legislation, as every other voter." Jones v. Freeman, Okl., 146 P.2d 564, 567. In that respect, we recommended the Proposed Order And Decree, filed on July 30, 1962, by the then Acting Attorney General, as a practical and helpful guide to the orderly reapportionment for both Houses. See: Price v. Moss; Oklahoma Farm Bureau v. Moss, D.C., 207 F.Supp. 885; Review Denied, 374 U.S. 103, 83 S.Ct. 1687.

Having thus invoked the spirit and intent of the Oklahoma Constitution, as a reliable guide for compliance with the Fourteenth Amendment, and having been assured by the leaders of the Oklahoma Legislature, in open Court, that once their constitutional duty was made clear, it would be discharged with befitting honor and fidelity, we withheld any redress for deprivation of the plaintiffs' rights, by the prolonged malapportionment. We were also mindful of the pendency of an Initiative Petition, providing for a Constitutional Commission, to reapportion the Legislature in accordance with the Oklahoma Constitution, and the prospects of its submission to the people at the November election.

At the November election, the Initiative Petition did receive an affirmative majority of the total votes cast on the Petition (335,045 to 273,287, or a majority of 61,758). The then Governor proclaimed that it had become law. The Commission created thereunder was constituted, and proceeded to reapportion both houses of the Legislature, in accordance with the Oklahoma Constitution, except only to the extent necessary to comply with the guidelines set out in the August 3, 1962 Order of this Court.

The intervening Senators filed in the Oklahoma Supreme Court, an original action to annul the Initiative Petition, on the ground that it had not received the constitutionally required affirmative vote, and to litigate the identical constitutional issues heretofore presented for decision in this proceedings. On petition of the plaintiff and his class, to enjoin the intervenors from prosecuting the original proceedings in the Supreme Court of Oklahoma, we restrained the parties from relitigating the constitutional questions presented here, but deferred to the Oklahoma Court the resolution of the question whether the Initiative Petition had become the law of the State. See: Memorandum Decision Granting Restraining Order, attached as Appendix "A"; Review Denied, Baldwin v. Moss, 374 U.S. 93, 83 S.Ct. 1687, 10 L.Ed.2d 1026. In the State proceedings, the Supreme Court determined that the Initiative Petition "failed of adoption for lack of sufficient affirmative votes." Allen v. Burkhart, Okl., 377 P.2d 821.

When this cause came on for hearing on March 8, 1963, for further consideration of the remedy to be afforded to the plaintiff and his class, the intervening Senators offered Oklahoma Senate Resolution No. 8 and Enrolled House Bill No. 586, and urged them upon the Court, as an appropriate and adequate remedy for the malapportionment of the Oklahoma Legislature under previously existing legislation. They took the position that the legislation complied with the Oklahoma Constitution and with the equal protection clause of the Fourteenth Amendment. The plaintiff and allied intervenors took the position that the legislation was wholly inadequate to achieve constitutional reapportionment, and to provide the remedy for impairment of their voting rights. The League Of Women Voters and The Congress Of Parents And Teachers offered a plan for reapportionment of both Houses of the Legislature, in accordance with a "standard deviation formula," and testimony in support of it. The plan provides a simple and facile method for reapportioning the Legislature on the basis of population.

The legislation urged upon us by the intervening Senators as an appropriate remedy, has passed both Houses of the Legislature, and has been signed by the Governor, but no effort was made to attach the emergency clause. Article V, Section 58 of the Oklahoma Constitution provides that such legislation does not become effective until ninety (90) days after the adjournment of the legislative session at which the legislation was passed, i. e., June 14, 1963. Moreover, under Article V, Sections 1 and 4 of the Oklahoma Constitution, the legislation may be referred to a vote of the people, on petition of five per cent (5%) of the voters, filed with the Secretary of State, within ninety (90) days after the final adjournment of the session, and before the legislation becomes effective.

Since the legislation is not presently effective and may never be effective, it cannot presently affect the rights of the complaining parties, and they, therefore, have no standing to challenge its...