Shapiro v. State of Maryland, Civ. No. 71-1280-M.

• Decision Date: 19 January 1972
• Docket Number: Civ. No. 71-1280-M.
• Citation: 336 F. Supp. 1205
• Parties: Samuel SHAPIRO v. STATE OF MARYLAND.
• Court: U.S. District Court — District of Maryland

336 F. Supp. 1205

Samuel SHAPIRO v. STATE OF MARYLAND.

Civ. No. 71-1280-M.

United States District Court, D. Maryland.

January 19, 1972.

COPYRIGHT MATERIAL OMITTED

Leonard J. Kerpelman, Baltimore, Md., for plaintiff.

Francis B. Burch, Atty. Gen., of Maryland, and E. Stephen Derby, Asst. Atty. Gen., Baltimore, Md., for defendant.

JAMES R. MILLER, Jr., District Judge.

Memorandum Opinion and Order

This action questions the constitutionality of the most recent restructure by the Maryland General Assembly of the eight United States Congressional Districts alloted to Maryland. Plaintiff, Samuel Shapiro, is a registered voter who formerly resided in the 7th Congressional District, but who, through a change in the boundary lines of the respective congressional districts through the legislative Act known as Chapter 353, Laws of Maryland (1971), has been placed in the 2nd Congressional District. Plaintiff's complaint alleges that the Maryland legislature engaged in "racial gerrymandering" by enacting Chapter 353 which amended Article 33 § 22-2 et seq., Annotated Code of Maryland (1971 Replacement Volume as amended). Plaintiff alleges a denial of equal protection of the laws under the 14th Amendment as well as a deprivation of his civil rights under 42 U.S.C. § 1983. He further alleges generally a violation of rights under the 15th Amendment. Since this action involves the constitutionality of a state statute together with a request for injunctive relief, the plaintiff has prayed the convening of a three-judge court under 28 U.S.C. § 2281 et seq. Plaintiff has prayed this court to declare Chapter 353 unconstitutional and has also prayed for an injunction to prevent an election being held until the 2nd and 7th Districts are properly reconstituted. The State of Maryland, the sole defendant, has moved to dismiss the suit.

A single district judge need not convene a three-judge court if the plaintiff's claim does not raise a substantial question. Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152 (1933); Maryland Citizens for a Representative General Assembly v. Governor of Md., 429 F.2d 606, 611 (4th Cir. 1970); Jacobs v. Tawes, 250 F.2d 611 (4th Cir. 1957); Lyons v. Davoren, 402 F.2d 890 (1st Cir. 1968), cert. den. 393 U.S. 1081, 89 S.Ct. 861, 21 L.Ed.2d 774 (1969); Britton v. Bullen, 275 F.Supp. 756 (D. Md. 1967). The claim of the plaintiff may be found to be insubstantial from a number of circumstances, such as the absence of federal jurisdiction, lack of standing of the plaintiff to sue, lack of substantive merit in the constitutional claim, or because injunctive relief is otherwise unavailable. Maryland Citizens for a Representative General Assembly v. Governor of Md., supra, 429 F.2d at 611 and cases therein cited; see also Hart v. Kennedy, 314 F.Supp. 823 (D. Okla. 1969); Cornwell v. State Board of Education, 314 F.Supp. 340 (D.Md. 1969), aff'd, 428 F.2d 471, cert. denied, 400 U.S. 942, 91 S.Ct. 240, 27 L.Ed.2d 246 (1970).

The instant suit is brought by a citizen of the State of Maryland against the State of Maryland. Normally such a suit is barred from the federal courts by the 11th Amendment to the United States Constitution unless the state has consented. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890) (interpreting the 11th Amendment as prohibiting a state from being sued by its own citizens). The state is not divested of its immunity "on the mere ground that the case is one arising under the Constitution or laws of the United States." Hans v. Louisiana, supra, 134 U.S., at 10, 10 S. Ct., at 505; see Duhne v. New Jersey, 251 U.S. 311, 40 S.Ct. 154, 64 L.Ed. 280 (1920); Parden v. Terminal R. Co., 377 U.S. 184 at 186, 84 S.Ct. 1207, 12 L.Ed. 2d 233 (1964). There is no indication here that the state has waived its sovereign immunity in this case.

While the state normally is immune from suit by one of its citizens in a federal court, its officials are not and they may be sued by private citizens to enjoin the denial of federal constitutional rights. Ex parte Young, supra; see United States v. Mississippi, 380 U. S. 128 at 140, 85 S.Ct. 808, 13 L.Ed.2d 717 (1965). Nor has congressional enactment granted authority in 42 U.S.C. § 1983, relied on by the plaintiff, for suit against the state since Maryland is a body politic and not a "person" amenable to suit under that section. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L. Ed.2d 492 (1961). Counsel for the plaintiff, at oral argument on the motion to dismiss, conceded that the state had improperly been made the party defendant and requested leave to amend the complaint to name the proper party defendants. Since this court, as will appear later in this opinion, is of the view that this suit should be dismissed for other reasons, leave will not be granted to amend the complaint to substitute other defendants for the state.¹

The defendant's motion also challenges the plaintiff's standing to sue. The complaint alleges that the 7th Congressional District had a racially balanced make-up of 50% white and 50% Negro prior to the passage of Chapter 353 which racially gerrymandered the district, changing its racial composition to 75% Negro and 25% white, in order "to deliver Congressman Parren Mitchell a safe seat" and "leave Congressman Paul Sarbanes out in the cold." Plaintiff further cryptically alleges that he is "either of the white or Negro race" and is bringing the suit both in his own behalf and as a class action on behalf of all those similarly situated.

A plaintiff to establish standing must allege first that the challenged action in fact causes him injury, whether economic or otherwise, and second that the interest which he seeks to protect is arguably within the zone of interests protected by the constitutional and statutory guarantees in question. Association of Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L. Ed.2d 184 (1970). While plaintiff has alleged that he formerly lived in a racially balanced 7th District, he has not alleged what the racial mix is in the new 2nd District where he now resides as a result of the changed boundary lines. If there is some constitutional right to live or vote in a racially balanced congressional district (which is doubtful), plaintiff has not alleged facts to show that his new district is not racially balanced. Hence, he does not allege that he has suffered in fact some injury under the first prong of the Association of Data Processing Service v. Camp test sufficient to give him standing to sue on the ground that he has been deprived of an alleged constitutional right to live or vote in a racially balanced congressional district.

If, on the other hand, plaintiff is complaining of constitutional wrongs allegedly done to persons who now live in the revised 7th District, he again fails to meet the first prong of the Association of Data Processing Service v. Camp test since he is not a resident of the revised 7th District. Cf. Chavis v. Whitcomb, 305 F.Supp. 1364, 1390 (S.D.Ind. 1969), rev'd on other grounds, Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971).

In Chavis, plaintiffs claimed a denial of equal protection because Indiana's legislative districting included a multi-member district. Plaintiffs Chavis, Ramsey and Bryant alleged that the multi-member districting invidiously diluted the force and effect of the vote of Negroes and poor persons living within the ghetto area. The three-judge district court held that plaintiffs Chavis and Ramsey did not have standing because they did not show they were residents of the ghetto area and therefore they were not injured by the alleged underrepresentation. 305 F.Supp. at 1390.

The plaintiff before this court argues that his situation is closer to that of the plaintiffs in Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). However, in Gomillion the plaintiffs, who were all Negroes, were moved outside the city limits of Tuskegee, Alabama so that they could not vote in municipal elections. Here, plaintiff is not being deprived of his right to vote in the congressional elections; he is simply being told to vote in another district. If plaintiff has been injured by being forced into another district, he could conceivably have standing to question the entire redistricting scheme, but by failing to allege facts relating to the new 2nd District of which he is now a resident, it is impossible for this court to say that plaintiff has suffered any injury sufficient to give him standing to sue.

Further standing difficulties are created by plaintiff's allegation that he is ". . . either of the white or Negro race." Assuming that the legislature has indulged in racial gerrymandering in creating the new congressional districts by Chapter 353, the effect of the action applies only to the exercise of the electoral process. This court is not aware of any utility of congressional district lines other than to delineate the areas from within which a registered voter might vote for a candidate for the office of United States Representative and for a delegate or delegates to one of the national nominating conventions. Since the law relates only to the electoral or nominating process, one must look to that area to find the fruits or results, if any exist, of the alleged unconstitutional actions. The term "racial gerrymandering" obviously refers to the manipulation of district lines on the basis of the racial composition of the population in the geographical area under consideration. Logically, therefore, it would seem that the results or fruits of racial gerrymandering of a congressional district would or could result in diluting, minimizing or rendering ineffective the vote of members of a specified race or preventing a member of a specified race from gaining political office. See Gomillion v. Lightfoot, supra; Wright v. Rockefeller, 211 F.Supp....