Nolan v. Rhodes, Civ. A. No. 6082

• Decision Date: 21 February 1966
• Docket Number: 6491,Civ. A. No. 6082,7585.
• Citation: 251 F. Supp. 584
• Parties: James D. NOLAN, Plaintiff, v. James A. RHODES, Governor of Ohio, et al., Defendants. Leonard M. SIVE et al., Plaintiffs, v. Harry ELLIS et al., Defendants. Clarence BLOSSER, Plaintiff, v. James A. RHODES et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

251 F. Supp. 584

James D. NOLAN, Plaintiff, v. James A. RHODES, Governor of Ohio, et al., Defendants.

Leonard M. SIVE et al., Plaintiffs, v. Harry ELLIS et al., Defendants.

Clarence BLOSSER, Plaintiff, v. James A. RHODES et al., Defendants.

Civ. A. Nos. 6082, 6491, 7585.

United States District Court S. D. Ohio, E. D.

October 27, 1965.

Judgment Affirmed February 21, 1966.

Kenneth G. Weinberg, Cleveland, Ohio, Stewart R. Jaffy, Columbus, Ohio, for plaintiff in No. 6082.

Jerome Goldman, Cincinnati, Ohio, for plaintiffs in No. 6491; William T. Bahlman, Jr., Robert P. Goldman, Bruce I. Petrie, Charles H. Tobias, Jr., Harris K. Weston, Cincinnati, Ohio, of counsel.

Harry P. Jeffrey, Dayton, Ohio, for plaintiff in No. 7585.

William B. Saxbe, Atty. Gen., of Ohio, Columbus, Ohio, for defendants in Nos. 6082, 6491 and 7585.

Hugh A. Sherer, Columbus, Ohio, William E. Knepper, Columbus, Ohio, special counsel for defendants in Nos. 6082 and 6491.

George Schilling, Jr., Pros. Atty., Clinton County, Wilmington, Ohio, Angus B. Wilson, Pros. Atty., Brown County, Georgetown, Ohio, John O. Crouse, Pros. Atty., Highland County, Hillsboro, Ohio, Elmer Spencer, Pros. Atty., Adams County, West Union, Ohio, for defendants in No. 6491; Gerald A. Donahue, John J. Chester, Columbus, Ohio, special counsel.

Before WEICK, Circuit Judge, and WEINMAN and PECK, District Judges.

See 86 S.Ct. 716, 15 L.Ed.2d 616.

PER CURIAM.

These three consolidated cases challenge the constitutionality of the apportionment of the General Assembly of the State of Ohio. Pursuant to mandate of the Supreme Court of the United States (378 U.S. 556, 84 S.Ct. 1906, 12 L.Ed.2d 1034, 1964), this Court by order dated October 15th, 1964, and entered in Nolan v. Rhodes and Sive v. Ellis (Nos. 6082 and 6491), 218 F.Supp. 953 declared Article XI, Section 2 of the Ohio Constitution void as being in violation of the Fourteenth Amendment to the Constitution of the United States, and ordered the Ohio General Assembly to effect an apportionment system for its membership in compliance with said constitutional provision. The effective date of said order was postponed until the further order of the Court to provide an opportunity for the General Assembly of Ohio to take action to effect such reapportionment. The General Assembly then met in special session on November 10, 1964, and on December 9, 1964, adopted a joint resolution providing for an apportionment plan of the House of Representatives only and the submission thereof to the voters at a special election in May, 1965. Such special election was held but the proposed amendment was defeated by the vote of the electors.

Apportionment of the House was again considered by the 106th General Assembly at its regular session in 1965, but the three-fifths vote of both Houses required to submit a constitutional amendment for a vote of the people could not be obtained. The General Assembly having adjourned sine die without having enacted another apportionment amendment for submission to the electors, the Court entered an order requesting each party to the actions to file on or before October 15, 1965, a suggested plan for reapportionment of the Ohio House of Representatives and a suggested plan for the reapportionment of the Ohio Senate, and further announcing that any person or persons could within said period of time file a suggested plan upon leave of Court.

In Blosser v. Rhodes (No. 7585), by interlocutory order entered October 18, 1965, the Court determined that the Senate of the Ohio General Assembly was malapportioned for the reasons that the Senate has not been apportioned substantially on a population basis; that substantial equality among the districts has not been maintained; that the provisions of the Ohio Constitution governing apportionment of the Senate were contained in the Constitution of 1851 and have not since been amended except as to districts having fractions; that the Constitution of 1851 does not properly allow for the shifts in population which have occurred since its adoption; that the provision (Ohio Cons., Art. XI, Sec. 6a) providing for a varying number of Senators from the same district for different legislative sessions during a decennial period results in underrepresentation for some sessions and overrepresentation for others, but never for reasonably exact representation; that the provisions of the Ohio Constitution which require said malapportionment of the Senate as above related, are in violation of the Fourteenth Amendment to the Constitution of the United States and are therefore null and void. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) and other cases decided on the same day.

In the order of September 16, 1965, each party to actions Nos. 6082 and 6491 was requested to file on or before October 15, 1965, a suggested plan for the reapportionment of the Ohio House of Representatives and a suggested plan for the reapportionment of the Ohio Senate, and the order further provided that any interested person or persons might within the same period of time file such suggested plans by leave. Pursuant thereto such plans have been filed by the parties as well as by many other interested persons and organizations. Among the plans filed by the parties is one which was filed by the Governor, Auditor of State and Secretary of State of Ohio. Those state officials constitute the Apportionment Board created by Article XI, Section 11 of the Ohio Constitution^* and simultaneously with such filing, said Board caused the same plan to be published in newspapers of general circulation in the State of Ohio as required by said Section of the Constitution.

In essence, that plan as filed and published divides the state of Ohio into 99 districts and provides for the election to the House of Representatives of one member from each House District so formed, and then provides for 33 Senate Districts, from each of which one senator is to be elected, and each of which is comprised of three House Districts. In determining the "ideal" population for a House District the population of the state was divided by one hundred (Ohio Cons., Art. XI, Sec. 1). Under the plan, no House District has less than 85% of such population, nor more than 115% thereof. No county was divided which fell within the 85 to 115% range, and in establishing the districts pre-existing political boundary lines (i. e., county lines, township, municipal, ward or precinct boundaries, etc.) were followed. The population figures used were of the last census, and since 1960 population figures were used 1960 boundaries were also followed, since there is no more recent official determination of such population shifts as may have occurred.

As above stated, each Senate District is composed of three contiguous House Districts. In determining the "ideal" population of such district, the 1960 population of the state was divided by 35 (Ohio Cons., Art. XI, Sec. 6). While the populations of the Senate Districts do not in every instance fall within the range of 85-115% of the quotient arrived at by dividing the population by 35, every Senate District is well within that range if a divisor of 33 (the number of Senators) is used. A variance within that range is here held not to be violative of constitutional standards.

It is the position of said state officials, as urged in the supporting brief accompanying the plan filed in this court by the Attorney General of Ohio, that they acted in accordance with the authority of said Section 11, thereby performing the mandatory duty imposed upon the Board to reapportion the Ohio General Assembly.

It is axiomatic that any action taken by a properly constituted governmental agency is entitled to a presumption of validity, and accordingly the action of the Apportionment Board is here to be presumed to be legal, valid and constitutionally taken. (See, e. g., Goldberg v. Truck Drivers Local Union No. 299, 293 F.2d 806 (6th Cir. 1961)). In this regard, mention is made of the fact that such constitutionality has been challenged in an action instituted in the Court of Appeals for Franklin County, Ohio, October 20th, 1965, in action No. 8228 on the docket of that court. Until or unless the presumption of validity hereinabove referred to is dissipated by determination by the Ohio courts, the presumption is deemed binding upon this Court, the question whether the Board acted in accordance with authority conferred by the Constitution of Ohio being peculiarly one of Ohio law and appropriate for resolution in the courts of that state.

We regard the apportionment of the General Assembly of Ohio as being a legislative rather than a judicial function. The Federal Court should intervene only to protect rights guaranteed by the Constitution of the United States. When a state apportionment has been declared unconstitutional the Federal Court should devise and put into effect a reapportionment plan only as a last resort when the Legislature fails or is unable to act. In devising a plan the Court acts to prevent a breakdown or disruption of essential state government services.

If the presumption of validity prevails and finds support in the Ohio courts, it must necessarily follow that by its action the Board has established a plan for the reapportionment of the General Assembly and the only determination to be made by this Court is whether or not such plan is in violation of the Constitution of the United States or any provisions thereof. A study of such plan convinces us that the apportionment made by the Board conforms as nearly as practicable according to population and follows the rules enunciated by the Supreme Court in Reynolds. This Court therefore finds that said plan is not violative of the Constitution of the United States.

Elections could not be held under the present apportionment since we have held the General Assembly to be malapportioned. Therefore, consideration must be given to an alternative,...