Scott v. Hill, 71-1002.

• Decision Date: 07 October 1971
• Docket Number: No. 71-1002.,71-1002.
• Citation: Scott v. Hill, 449 F.2d 634 (6th Cir. 1971)
• Parties: Thomas Aries SCOTT, Plaintiff-Appellant, v. Edward A. HILL et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

449 F.2d 634 (1971)

Thomas Aries SCOTT, Plaintiff-Appellant, v. Edward A. HILL et al., Defendants-Appellees.

No. 71-1002.

United States Court of Appeals, Sixth Circuit.

October 7, 1971.

Stuart Lyon, Louisville, Ky., for appellant; David Kaplan, Don Major, Louisville, Ky., on brief.

George F. Rabe, Frankfort, Ky., for appellees; John B. Breckinridge, Atty. Gen., Frankfort, Ky., on brief.

Before PHILLIPS, Chief Judge, CELEBREZZE and McCREE, Circuit Judges.

CELEBREZZE, Circuit Judge.

This case is before us on an appeal from the decision of the United States District Court for the Eastern District of Kentucky, dismissing Appellant's action for failure to state a claim upon which relief could be granted.

Appellant, Thomas Aries Scott, was sentenced to death for the murder of two Louisville, Kentucky, policemen after a trial in the Jefferson Circuit Court. His appeal from that conviction is presently pending before the Kentucky Court of Appeals, the State's highest court.

After filing his appeal with the Kentucky Court of Appeals, Appellant brought an action before the United States District Court for the Eastern District of Kentucky, asking that a three-judge District Court be convened under 28 U.S.C. § 2281 to enjoin the Kentucky Court of Appeals, as it is presently composed, from hearing his appeal. Appellant asserted that he will be denied equal protection and due process of the law under the Fourteenth Amendment of the United States Constitution if his appeal is heard by the Judges of the Kentucky Court of Appeals, who were elected from electoral districts prescribed by KRS 21.020 which are not apportioned according to the current population distribution within the State.

The District Court dismissed Appellant's action, finding 1) that Appellant had no standing to assert his claim since, as a criminal, he had forfeited his right to vote and 2) that Appellant failed to assert a substantial constitutional issue since the "one-man, one-vote" apportionment requirement set forth in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), does not apply to the election of state court judges.

We affirm the decision of the District Court, but on different grounds as set forth herein.

I.

With respect to the District Court's dismissal of Appellant's claim because Appellant had no standing to sue, we believe, without deciding, that Appellant's standing to sue presented a substantial constitutional question which, in a proper case, would have warranted the convening of a three-judge District Court under 28 U.S.C. § 2281.

The District Court apparently accepted Appellees' argument that, because convicted felons forfeit their right to vote in Kentucky, Ky. Const. § 145(1), (2), Appellant had no standing to challenge the apportionment of the electoral districts from which the Kentucky Court of Appeals is elected. Appellant does not cite, nor are we able to find, any cases which have recognized a nonvoter's standing to challenge the apportionment of electoral districts. Nearly all of the early legislative apportionment cases decided by the United States Supreme Court involved voters challenging state electoral districts. See, e. g., Smiley v. Holm, 285 U.S. 355, 361, 52 S.Ct. 397, 76 L.Ed. 795 (1932) ("citizen, elector, and taxpayer"); Koenig v. Flynn, 285 U.S. 375, 379, 52 S.Ct. 403, 76 L.Ed. 805 (1932) ("citizens and voters"); Wood v. Broom, 287 U.S. 1, 4, 53 S.Ct. 1, 77 L.Ed. 131 (1932) (a citizen, elector, and qualified candidate for the House of Representatives); Colegrove v. Green, 328 U. S. 549, 550, 66 S.Ct. 1198, 90 L.Ed. 1432 (1946) (Frankfurter, J.) (qualified voters); South v. Peters, 339 U.S. 276, 277, 70 S.Ct. 641, 94 L.Ed. 834 (1950) (residents and voters of the most populous country in the state). In the landmark case of Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) — the only legislative apportionment case in which the Supreme Court thoroughly considered the question of standing to sue — the Court's concern was limited to the standing of voters to bring reapportionment actions. 369 U.S. at 204-208, 82 S.Ct. 691. And subsequent cases have construed Baker v. Carr as establishing the standing of voters to seek the protection of the United States Constitution against the "dilution or debasement" of their right to vote. Hadley v. Junior College District, 397 U.S. 50, 54, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970). See also Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963); Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964); Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed. 2d 376 (1966); Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967); Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968). In his opinion in Oregon v. Mitchell, 400 U.S. 112, 136-137, 91 S.Ct. 260, 271, 27 L.Ed.2d 272 (1970), Mr. Justice Douglas spoke of an individual's voting right as being the concern of the Supreme Court in Baker v. Carr and subsequent cases: "That case was followed by numerous others, e. g.: that one person could not be given twice or 10 times the voting power of another person in a statewide election merely because he lived in a rural area or in the smallest rural county * * *." Indeed, at least two three-judge United States District Courts have held that legislative reapportionment actions can be brought only by qualified voters suffering under a state's malapportioned electoral districts. In State of Wisconsin v. Zimmerman, 205 F.Supp. 673 (W.D.Wis. 1962), a three-judge District Court, holding that a state does not have standing to bring a reapportionment action on behalf of its people, stated that "the fundamental questions at stake in this litigation cannot be properly decided in this Court unless two or more individual Wisconsin electors are named as parties plaintiff." 205 F.Supp. at 676, citing Baker v. Carr, supra. And the three-judge District Court in League of Nebraska Municipalities v. Marsh, 209 F. Supp. 189 (D.Neb.1962), dismissed a reapportionment action brought by an association of municipalities and the state chapter of the AFL-CIO, holding that "only a citizen who is a legal voter in a legislative district where his rights are impinged by the failure to reapportion can maintain such an action." 209 F. Supp. at 192. More recently, the United States Court of Appeals for the Seventh Circuit has similarly interpreted Baker v. Carr, supra, and the subsequent Supreme Court cases cited above as protecting the voting rights of individuals. Recognizing the standing of voters to challenge the political patronage system of Chicago and Cook County in Shakman v. Democratic Organization of Cook County, 435 F.2d 267 (7th Cir. 1970), the Court found that "the equal protection clause secures from invidious official discrimination the voter's interest in a voice in government of equal effectiveness with other voters." 435 F.2d at 270.

Notwithstanding this support for Appellees' argument that only a qualified voter has standing to bring a reapportionment action, the cases cited above do not conclusively dispose of Appellant's claim that a nonvoting citizen has standing to challenge the dilution of his representation through malapportioned electoral districts. Neither the Supreme Court nor the lower Courts have specifically denied standing to a nonvoting citizen bringing an action for reapportionment. In Mathews v. Handley, 361 U.S. 127, 80 S.Ct. 256, 4 L.Ed.2d 180 (memorandum), affirming 179 F.Supp. 470 (N.D.Ind.1959), the Supreme Court affirmed, without opinion, the three-judge District Court's dismissal of an action by "citizens" and "taxpayers" seeking, among other things, the reapportionment of the Indiana Legislature. The District Court's dismissal was based on grounds other than any finding that the plaintiffs lacked standing to sue, despite the fact that that Court's opinion does not reveal that the plaintiffs were qualified voters. Moreover, because the appellants in Baker v. Carr were in fact qualified voters, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), the Supreme Court's recognition of standing in that case cannot be interpreted as precluding a nonvoting citizen's standing to bring a similar reapportionment action. Although not a qualified voter, Appellant here might very well be found to meet the oft-quoted test set forth by the Supreme Court in Baker v. Carr:

"Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions? This is the gist of the question of standing." 369 U.S. at 204, 82 S.Ct. at 703.

With respect to this test for standing as applied to Appellant, it should be noted, as Appellant has in his brief, that Section 116 of the Kentucky Constitution requires that Judges of the Kentucky Court of Appeals shall be elected from districts apportioned on the basis of population rather than on the basis of the number of qualified voters. It might be found that, by adopting Section 116, the framers of the Kentucky Constitution intended the Court of Appeals to represent the citizens of the state and not merely the state's qualified electors, vesting in Appellant an interest which would support his standing to sue under the test set forth above. Moreover, it is clear that Appellant's immediate interest in the composition of the Kentucky Court of Appeals — the tribunal which will review his conviction and death sentence — affords Appellant a very specific "personal stake in the outcome of the controversy" which might warrant a recognition of his standing in this case.

We therefore believe that the question of Appellant's standing to challenge the apportionment of the electoral districts from which the Judges of the Kentucky...