Petuskey v. Clyde

• Decision Date: 12 September 1964
• Docket Number: Civ. No. C7-63.
• Citation: 234 F. Supp. 960
• Parties: William G. PETUSKEY, Robert A. Bullough, Clinton M. Black and Farrol R. Lambert, Plaintiffs, v. George D. CLYDE, as Governor of the State of Utah; Lamont F. Toronto, as Secretary of State of the State of Utah; Sherman J. Preece, as Auditor of the State of Utah; Sharp M. Larsen, as Treasurer of the State of Utah; A. Pratt Kesler, as Attorney General of the State of Utah; Alvin Keddington, as County Clerk of the County of Salt Lake, State of Utah; C. W. Brady, as County Commissioner of Salt Lake County, State of Utah; Edwin Q. Cannon, as County Commissioner of Salt Lake County, State of Utah; and Marvin G. Jenson, as County Commissioner of Salt Lake County, State of Utah, Defendants.
• Court: U.S. District Court — District of Utah

234 F. Supp. 960

William G. PETUSKEY, Robert A. Bullough, Clinton M. Black and Farrol R. Lambert, Plaintiffs, v. George D. CLYDE, as Governor of the State of Utah; Lamont F. Toronto, as Secretary of State of the State of Utah; Sherman J. Preece, as Auditor of the State of Utah; Sharp M. Larsen, as Treasurer of the State of Utah; A. Pratt Kesler, as Attorney General of the State of Utah; Alvin Keddington, as County Clerk of the County of Salt Lake, State of Utah; C. W. Brady, as County Commissioner of Salt Lake County, State of Utah; Edwin Q. Cannon, as County Commissioner of Salt Lake County, State of Utah; and Marvin G. Jenson, as County Commissioner of Salt Lake County, State of Utah, Defendants.

Civ. No. C7-63.

United States District Court D. Utah, Central Division.

September 12, 1964.

John S. Boyden, Salt Lake City, Utah, for plaintiffs.

A. Pratt Kesler, Atty. Gen. of State of Utah, and Ronald N. Boyce, Chief Asst. Atty. Gen. of State of Utah, for defendants George D. Clyde, Lamont F. Toronto, Sherman J. Preece, Sharp M. Larsen and A. Pratt Kesler.

Grover A. Giles, Salt Lake County Atty., and James A. McIntosh, Deputy County Atty., for defendants Alvin Keddington, C. W. Brady, Edwin Q. Cannon and Marvin G. Jenson.

Before LEWIS, Circuit Judge, and RITTER and CHRISTENSEN, District Judges.

LEWIS, Circuit Judge.

This case was originally filed on January 16, 1963, by plaintiffs as a representative action wherein they sought for themselves as citizens of the United States and of the State of Utah, and as duly qualified voters in Salt Lake County, Utah, and for all other voters in the State of Utah who were similarly situated, a declaration that the provisions of Title 36, U.C.A.1963, as amended by the Laws of Utah 1955, were violative of the Fourteenth Amendment to the Constitution of the United States as an invalid apportionment statute pertaining to the election of members to both the Utah State Senate and House of Representatives. The defendants were named in their respective capacities as public officers and officials of the State of Utah charged by law with particular duties respecting the election of members of the Utah Senate and House of Representatives. Since the prayer of plaintiffs' complaint sought the additional relief of injunctive restraint against the enforcement of a state statute and the action of state officers charged with the duty of enforcement, this statutory three-judge court was duly convened. 28 U.S.C. §§ 2281, 2284.

During the pendency of the action the Utah State Legislature made further amendments to the subject statutes which, with the approval of the Governor, became effective as the law of Utah during May, 1963. By leave of this court plaintiffs were allowed to file a supplemental complaint directing their contentions to what may be designated as the Reapportionment Act of 1963, Title 36, U.C.A., as amended by Laws of Utah 1963. After due response by defendants the case became at issue during May, 1963. In recognition of the potential impact that a decision in the case might have upon the governmental affairs of Utah, this court upon its own motion abstained from hearing the case upon the merits pending the decisions of the United States Supreme Court in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506; WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568; Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595; Davis v. Mann, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609; Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620, and Lucas v. Forty-Fourth General Assembly of State of Colorado, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632, decided on June 15, 1964, which held, inter alia, that both houses of a bicameral state legislature must be apportioned substantially on a population basis. The crystallization of federal constitutional requirements as held in the cited cases made it this court's clear duty to give immediate consideration to plaintiffs' contention, and the case was heard and submitted upon August 3, 1964.

Jurisdiction in this court rests upon 42 U.S.C. §§ 1983, 1988 and 28 U.S.C. § 1343(3), the Civil Rights Acts; a justiciable issue exists under the rule of Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663; the parties having agreed that there is no genuine issue as to any material fact, the case is ripe for summary judgment. Rule 56, Fed.R. Civ.P.

The Utah Reapportionment Act of 1963 provides for a state Senate consisting of twenty-seven members elected from eighteen designated senatorial districts consisting of one or more counties. See App. A. The act states that representation shall be determined upon the basis of one senator for the first twenty thousand inhabitants, or major fraction thereof, and one additional senator for each additional sixty-one thousand inhabitants, or major fraction thereof, residing within the senatorial district. The act is a patent and probably successful attempt¹ to apportion the senate in accordance with the Utah Constitution which provides that there shall be a maximum of thirty senators in the Senate (art. IX, sec. 3), that when two or more counties form one district they must be contiguous, that no county shall be divided into more than one district unless such county contains sufficient population within itself to form two or more districts, and that no part of a county shall be united with another county in the formation of a senatorial district (art. IX, sec. 4).²

To test the validity of the senatorial apportionment the population distribution in Utah must be applied to the various districts and the number of senators elected from each district. See App. B. The senatorial districts average 32,986³ inhabitants each, but District Three, Rich, Morgan, and Summit Counties, and District Eighteen, Washington County, each with one senator, have 10,195 and 10,271 inhabitants respectively, while District Four, Weber County, with two senators, has 55,372 inhabitants per senator, and District Six, Salt Lake County, with seven senators, has 54,719 inhabitants per senator. The ratio of inhabitants per senator between the highest and lowest districts is 5.4 to one. The larger districts, those with two or more senators, average 51,195 inhabitants per senator as compared with an average of 16,078 in the smaller districts, a ratio of 3.2 to one. As a result, districts containing 225,097 inhabitants, or 25.3 per cent of the state's population, can elect a majority of the state Senate.

Without laboring the application of simple mathematics to the senatorial apportionment, it is clearly apparent that representation is not presently based upon substantial equality in population and that there exists a gross and untenable dilution of the weight accorded the individual votes of citizens of Utah who reside in the more populous counties and districts. The disparity between the effectiveness of citizens' votes, reaching as it does a ratio exceeding five to one, is an invidious discrimination denying to the people of Utah the equal protection of its law and thus violating the compulsion of the Fourteenth Amendment to the Constitution of the United States. We hold, therefore, that the Reapportionment Act of 1963, as it pertains to the apportionment of the Utah State Senate, is federally unconstitutional.

Under the 1963 act, representation in the House of Representatives is on the basis of one representative for each sixteen thousand inhabitants, or major fraction thereof, residing within the district, except that each county must have at least one representative. See App. C. The act provides for a total of sixty-nine representatives from Utah's twenty-nine counties and is consistent with the Utah Constitution, which states that each county must have at least one representative (art. IX, sec. 4), and that the House of Representatives shall have at least two and no more than three times as many members as there are senators (art. IX, sec. 3), limiting the membership of the House to ninety because of the Senate limitation to thirty (art. IX, sec. 3). The House districts average 12,908 inhabitants each, but Districts Twenty-one and Twenty-nine, Piute and Daggett Counties, have only 1,436 and 1,164 inhabitants respectively, compared with 21,135 in District Fifteen, Carbon County, and an average of 17,894 for each of the two representatives of District Two, Cache County. The ratio of inhabitants per representative of the highest to the lowest populated district is 18.2 to one, and districts with a total population of 336,400, or 37.8 per cent of the state's population, can elect a majority in the House of Representatives. See App. D.

Again, we find it unnecessary to elaborate upon the obvious and simple fact that the House of Representatives is not presently apportioned according to substantial equality in population and that accordingly the equal protection of law is denied to the state's citizens. We hold that the Reapportionment Act of 1963, as it pertains to the apportionment of the House of Representatives, is federally unconstitutional.

In enacting the Reapportionment Act of 1963, the state legislature considered itself bound by the restrictions affecting the subject matter contained in the Utah Constitution. And this was understandably so for it is their dual duty to observe the constitutional limitations contained in both the Constitution of Utah and the Constitution of the United States in all instances where such course is possible. In the case at bar it was not possible. For example, it is mathematically impossible to apportion upon a population basis a House of Representatives composed of not more than ninety members and with each county having at least one member. Thus, in application, the restrictive provisions of the Utah Constitution are in irreconcilable conflict with the Constitution of the United States and, being so, are themselves...