Petuskey v. Rampton

• Decision Date: 10 October 1969
• Docket Number: No. C 7-63.,C 7-63.
• Citation: 307 F. Supp. 235
• Parties: William G. PETUSKEY, Robert A. Bullough, Clinton M. Black and Farrol R. Lambert, Plaintiffs, and Brian Florence, Petitioner in Intervention, v. Calvin L. RAMPTON, as Governor of the State of Utah; Clyde L. Miller, as Secretary of State of the State of Utah, Sharp M. Larsen, as Auditor of the State of Utah; Linn C. Baker, as Treasurer of the State of Utah; Phil L. Hansen, as Attorney General of the State of Utah; Jacob A. Weiler, as County Clerk of the County of Salt Lake, State of Utah; John Preston Creer, as County Commissioner of Salt Lake County, State of Utah; William G. Larsen, 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

307 F. Supp. 235

William G. PETUSKEY, Robert A. Bullough, Clinton M. Black and Farrol R. Lambert, Plaintiffs, and Brian Florence, Petitioner in Intervention, v. Calvin L. RAMPTON, as Governor of the State of Utah; Clyde L. Miller, as Secretary of State of the State of Utah, Sharp M. Larsen, as Auditor of the State of Utah; Linn C. Baker, as Treasurer of the State of Utah; Phil L. Hansen, as Attorney General of the State of Utah; Jacob A. Weiler, as County Clerk of the County of Salt Lake, State of Utah; John Preston Creer, as County Commissioner of Salt Lake County, State of Utah; William G. Larsen, 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.

No. C 7-63.

United States District Court D. Utah, C. D.

August 6, 1969.

Final Findings, Conclusions, Judgment and Order, October 10, 1969.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

A. Wally Sandack, William J. Lockhart, Salt Lake City, Utah, for plaintiffs, and petitioner in intervention.

Vernon B. Romney, Atty. Gen., Salt Lake City, Utah, for defendants.

RITTER, Chief District Judge, sitting as a single judge United States District Court.

This matter stems from the adoption by the Senate and House of Representatives of Utah's 1965 unconstitutionally apportioned Legislature of a Resolution designated SJR3 which attempted to apply to the Congress of the United States to call a Constitutional Convention to provide for reapportionment of one House of a bicameral legislature on factors other than population and directed that the proper officer of this State transmit copies of the application to the Senate and House of Representatives of the United States.

At the date of filing his petition, Brian Florence alleges that thirty-three of the several states have adopted a variety of applications to the Congress requesting that Congress call a Convention for the same general purposes urged in SJR3, and that when a thirty-fourth state adopts such a Resolution, two-thirds of the several states will have made similar applications to Congress and pursuant to Article V, Constitution of the United States, the Congress "* * * shall call a Convention * * *" for that purpose.

He further alleges that the interests which petitioner shares with all other members of the class, as well as his special interests as a legislator of the State of Utah, are threatened by the imminent prospect of adoption of a similar resolution by any one of the seventeen states which have not as yet acted on such a resolution; and that there is imminent prospect of the adoption of such a resolution by the Legislature of the State of Wisconsin, as is more fully explained in the Wall Street Journal of 2 June, 1969.

Petitioner further alleges that the illegal and invalid attempt to petition Congress to call a Convention threatens to effect a fundamental constitutional change through the action of the unconstitutionally apportioned 1965 Utah Legislature, and further threatens, by such assumption of invalid authority, permanently to deprive him of the legislative voice to which he is entitled. The imminent threats posed by the unconstitutional action of the 1965 Legislature in proposing a convention call threatens to debase and dilute his vote both as a qualified voter and as a legislator in the House of Representatives of the State of Utah.

And, the Petitioner prays that: (1) he be permitted to intervene as a plaintiff on behalf of each and all other persons similarly situated who are qualified voters in the State of Utah; (2) after reasonable notice and hearing and in order to protect and effectuate its earlier Judgments in this action, this Court should enter an order declaring the action of the 1965 Utah State Legislature in adopting S.J.R. No. 3 to be illegal, invalid, and unconstitutional; (3) that this Court issue an Order mandatorily requiring Clyde L. Miller, Secretary of State of Utah, or other proper officer, to advise the Congress of the actions taken by this Court declaring the invalidity and unconstitutionality of S.J.R. No. 3 and requesting the withdrawal of said Resolution; (4) that this Court forthwith issue a Temporary Restraining Order mandatorily requiring Defendant Clyde L. Miller, as Secretary of State of Utah, to advise Congress that the validity of S.J.R. No. 3, adopted by the 1965 Utah State Legislature, is questioned by this action, that until the validity of said resolution is determined, his authority to submit said resolution to Congress is in doubt, and that he must require the return of said resolution, pendente lite.

There have been two judicial inquiries in depth, and two adjudications that the 1965 Legislature was unconstitutionally apportioned. One of those was before SJR3 was adopted and one after. Petuskey v. Clyde, 234 F.Supp. 960 (1964) and Petuskey v. Rampton 243 F.Supp. 365 (1965). In no uncertain terms Circuit Judge Lewis, speaking (234 F.Supp. 960) for the three-judge court which held the Reapportionment Act of 1963 "federally unconstitutional" as it pertained to the apportionment of the Utah State Senate and the Utah State House of Representatives said:

"* * * 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 * * * 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."

Twice that Legislature has been held to be a body in which the voting power of the urban Wasatch Front counties was grossly diluted in favor of the rural, and that such disparity was a discrimination denying to the people of Utah the equal protection of the law in violation of the Fourteenth Amendment to the Constitution of the United States.

Twice this court exercised restraint to allow the Legislature to correct this discrimination, once on September 12, 1964, about four months before SJR3, and once July 12, 1965 following the 1965 session. The court on both occasions addressed itself to the long history of strong opposition in the Utah Legislature to, and its successful frustration of, attempts to reapportion on a fair voting representation.

The court on both occasions reserved jurisdiction to deal with the problem if the legislators did not. Well, instead they adopted SJR3, which is an expression of resentment, and defiance, really. That is the background of SJR3.

The present proceeding was commenced by the filing on Friday, June 6, 1969, of a "Motion To Intervene As A Plaintiff and Claim In Intervention For Additional Relief" in the case of Petuskey et al. v. Rampton et al., supra. At that time a ten-day temporary restraining order was issued, and the matter was set for hearing on Friday, June 13th, before the Chief Judge of the District Court, who, also, was a member of the three-judge court.

The hearing was held on Friday, June 13, 1969, and is summarized as follows:

The only issue the court was asked to decide was whether or not this is a case requiring a three-judge court. Counsel for intervenor and claimant said, in his view, it is a one-judge case. The Attorney General for the State of Utah said his position was that it is a three-judge case.

In answer to the court's question who must make that decision the Attorney General said, "I think it is your honor."

The court responded: "Well, that is what I think, too."

The court asked counsel to prepare written briefs on that single issue.

The Attorney General refused to agree to a temporary restraint until briefs were filed and the court asked the Attorney General "Don't you want some time within which to prepare it?" To which the Attorney General responded, "I would prefer to have the court rule immediately, your honor, and, if your honor wants briefs, of course we are going to supply them." The court: "Well, I think that is unreasonable, that you want the court to rule before the court has an opportunity to study the evidence, to study the decisions, to read the statute, and the legislative history.

"A judge shouldn't be required to decide the serious questions we have been reviewing without any consideration, without leaving the bench, without reading the cases or your briefs. Now, I don't think that makes any sense at all.

"When the State asks me to decide those questions, instanter, without any time at all to reflect upon the evidence, or even to know what it is, or to reflect upon the law without knowing what it is yet, I think the State is asking the court to do a most injudicious thing, a most impossible thing."

THE COURT: "Very well, the restraining order is extended for ten days from the date and hour of the expiration of the previous order. You figure it out. And before that time expires, if you haven't already submitted your briefs here and I haven't already disposed of the matter, you come in and we will file your motion (for another extension of restraining order) and we will set it up on a calendar and we will hear you again. This is the way sometimes it is."

"If I conclude that this is a three-judge court case, you are going to have a three-judge court just as speedily as I can arrange it."

The restraining order plus one ten-day extension to July 26th Rule 65(b) was in effect when on Friday, June 20th, the Attorney General filed a "Motion To Three Judge Court", in which he moved the three-judge court to try this cause at the earliest practical time and to review the decision of June 13th extending the temporary restraining order issued on June 6, 1969.

Four days later, on Tuesday, June 24th, the Circuit Judge member of the Petuskey three-judge court noticed the matter for hearing on Friday, June 27th, before three judges, and such hearing was held.

The Circuit Judge opened the...