Regensburger v. City of Bowling Green, Ohio

• Citation: 278 F.3d 588
• Decision Date: 24 January 2002
• Docket Number: No. 99-3928.,99-3928.
• Parties: Joseph J. REGENSBURGER; Jeremy Neff, et al., Plaintiffs-Appellees, v. CITY OF BOWLING GREEN, OHIO, et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

278 F.3d 588

Joseph J. REGENSBURGER; Jeremy Neff, et al., Plaintiffs-Appellees, v. CITY OF BOWLING GREEN, OHIO, et al., Defendants-Appellants.

No. 99-3928.

United States Court of Appeals, Sixth Circuit.

Argued September 22, 2000.

Decided and Filed January 24, 2002.

COPYRIGHT MATERIAL OMITTED

Rodney A. Fleming (argued and briefed), Student Legal Services, Inc., Bowling Green University, Bowling Green, Ohio, for Plaintiffs-Appellees.

Steven L. Spitler (argued and briefed), Mimi S. Yoon, Spitler, Vogtsberger & Huffman, Bowling Green, Ohio, for Defendants-Appellants.

Before: BATCHELDER, COLE, and JOHN R. GIBSON, Circuit Judges.^*

COLE, J., delivered the opinion and judgment of the court, BATCHELDER, J., concurring in the judgment of the court but dissenting as to the reasoning employed in Part III.F. (pp. 598). JOHN R. GIBSON, J., joins in J. BATCHELDER'S separate writing as to Part III.F. which becomes the opinion of the court.

OPINION

COLE, Circuit Judge.

Plaintiffs-Appellees, residents of Bowling Green, Ohio, including students at Bowling Green State University ("BGSU") (all collectively referred to herein as "Plaintiffs"), initiated the present action against Defendants-Appellants, the City of Bowling Green, Ohio, and various city officials (collectively referred to herein as "the City"), alleging that the City's voting apportionment scheme violated their rights under the Fourteenth Amendment's Equal Protection Clause. After a bench trial, a magistrate judge found that the City's apportionment plan deviates from absolute population equality by at least 66.85%; that the City had set forth a rational state policy for the deviation; that the plan advanced the articulated policy; and that, the articulated policy notwithstanding, the population deviation exceeded constitutional limits. The magistrate judge ordered the City to develop and submit to the court for its review and approval a constitutionally permissible reapportionment plan. The district court affirmed the judgment of the magistrate judge in its entirety, and the City now appeals, assigning error to the magistrate judge's determinations that: (1) Bowling Green is subject to the requirements of Ohio Revised Code § 731.06; (2) the population deviation among the City's wards was not mitigated sufficiently by the City's provision of at-large representation; (3) the City must develop a reapportionment scheme, without guidance from the court, as to the appropriate population base to be used; (4) the 1995 statistics generated by the United States Department of Housing and Urban Development were "unsupported by sufficient facts," thus requiring the parties to rely upon the 1990 Federal Census population figures; and, (5) although the City's policies upon which the present apportionment plan is based are rational, the legislative plan is nevertheless unconstitutional. For the reasons that follow, we AFFIRM the order of the district court in its treatment of the five assignments of error. We REVERSE the judgment of the district court to retain jurisdiction over this case for the purpose of reviewing the constitutionality of the City's proposed reapportionment scheme.

I. BACKGROUND

Bowling Green, Ohio, is centered at the crossroads of U.S. Route 6 and U.S. Route 25. These bisecting highways establish a natural division of the city into four geographic quadrants, which, since the city's inception in 1866, have constituted four legislative wards. The Bowling Green City Charter ("Charter") provides that Bowling Green's City Council shall consist of three members selected "at large" based upon the total number of votes received, and one council member selected from each of the city's four wards. This apportionment scheme was incorporated into the Charter on October 31, 1972, when the municipality became a city.

Although Routes 6 and 25 form a natural geographic division of the city, they do not divide the city into quadrants containing proportional numbers of the city's population, due in part to the student population of BGSU, which is situated in Precinct 1-C of Ward 1. The City maintains that it, like other "college towns" with significant populations of students, properly substitutes the number of registered voters in the specific "campus" precincts for the Census-based populations when reviewing district representation, effectively counting only registered voters in areas of BGSU students. Of the 12,674 residents of Ward 1, 7311 of them are registered to vote. The City argues that when adjusted for numbers of registered voters, the population figures reveal that Ward 1 contains 31.9% of the total population, Ward 2 contains 27.5%, Ward 3 contains 15.5%, and Ward 4 contains 25.1%, resulting in a constitutionally permissible population deviation from ideal district size.¹

In early 1995, Plaintiffs challenged the apportionment scheme as a violation of the Fourteenth Amendment's Equal Protection Clause and sought declaratory and injunctive relief from the City. On September 15, 1995, a magistrate judge granted Plaintiffs' motion for partial summary judgment, finding that Plaintiffs had established a prima facie case of discrimination, and leaving for trial only resolution of the question whether the City's stated reasons for maintaining the ward boundaries provided a rational and constitutionally permissible justification for the population deviations. At an October 17, 1995, bench trial before the magistrate judge, Plaintiffs argued that the City's plan violated the "maximum population deviation" standard of 10% among legislative districts as required by Voinovich v. Quilter, 507 U.S. 146, 161-62, 113 S.Ct. 1149, 122 L.Ed.2d 500 (1993) (noting that a prima facie case of discrimination is established upon a showing that an apportionment plan has a maximum total deviation from ideal district size in excess of 10%). After testimony by various city officials, the magistrate judge found that Plaintiffs had alleged a prima facie case of discrimination, irrespective of whether one used the Census-based population figures or the registered-voter-adjusted population numbers for student precincts in Ward 1. Although the magistrate judge also found that the state policy justifying the population adjustments advanced by the City was rational, she nevertheless concluded that the resulting population disparity rendered the City's present apportionment scheme constitutionally defective. The court ordered the City to develop a reapportionment plan and retained jurisdiction to review and approve the new apportionment scheme. We granted the City's motion for leave to appeal. This appeal follows.

II. STANDARD OF REVIEW

We review de novo the district court's interpretation of the relevant law, but review its factual findings for clear error only. See Thornburg v. Gingles, 478 U.S. 30, 79, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986); see also Cousin v. McWherter, 46 F.3d 568, 574 (6th Cir.1995) ("A district court's factual findings regarding Section 2 violations and the determination of whether vote dilution has occurred are ordinarily reviewed for clear error.)" (citing Fed. R.Civ.P. 52(a)).

III. DISCUSSION

A. Charter City

Bowling Green, a charter city subject to Article XVIII, Section 7, of the Ohio Constitution,² is governed by a charter that provides in pertinent part that:

[t]he legislative power of the city shall be vested in a city council which shall be a continuing body consisting of 3 members at large and one member from each of such even number of wards which shall be established by council by ordinance enacted not later than January 15 of the year in which the first election for members of council from wards as established by such ordinance is to be held.

Ohio law provides that "the legislative authority of a city shall subdivide the city into wards, equal in number to the members of the legislative authority to be elected from wards" and delineates the manner in which a city is to carry out this directive. Ohio Rev.Code Ann. § 731.06 (Anderson 2000). Relying on the language of § 731.06, the magistrate judge found that "[a] city council has the continuing authority and duty to redivide the city into proper wards pursuant to law when an increase in population occurs."

The City seizes upon this statement, arguing that the magistrate judge erroneously concluded that a city is required to establish a ward system and that the City's hybrid at-large/ward system is, therefore, impermissible as a matter of law. Citing Pesek v. City of Brunswick, 794 F.Supp. 768 (N.D.Ohio 1992), for the proposition that a charter city subject to "home rule" may enact a provision that is in conflict with state law, the City argues that, because the Charter provision allowing a hybrid system is in direct conflict with § 731.06's requirement that a city establish a ward system of representation, the magistrate judge erred by requiring the City to adopt a ward system.

The City's argument is without merit. In the first instance, the magistrate judge did not make a finding that the at-large system was prohibited by § 731.06 nor did she conclude that the City could not adopt an at-large system. Rather, she found that, even when taking at-large representation into account, the deviation from ideal did not pass constitutional muster. Second, and more important, Pesek does not create legal authority for the City to avoid the reach of § 731.06. While it is true that "[t]he general rule is that in matters of local self-government, if there is a conflict between a charter provision and a statute, the charter provision prevails," the City has shown no conflict between its Charter and the statute. State ex rel. Bardo v. City of Lyndhurst, 37 Ohio St.3d 106, 524 N.E.2d 447, 450 (Ohio 1988). The Charter requires at-large and direct ward representation; § 731.06 merely directs the legislative authority of a city that employs a ward system of representation to subdivide the city into wards.³ Neither the...