Shayer v. Kirkpatrick, 81-4144-CV-C
| Decision Date | 07 January 1982 |
| Docket Number | 81-4196-CV-C and 81-4184-CV-C.,No. 81-4144-CV-C,81-4180-CV-C,81-4144-CV-C |
| Citation | 541 F. Supp. 922 |
| Parties | Sydell SHAYER, Linda Claire McDaniel, Shirley Albert, Andi Cenedella, Esther Myers, and Ann Reed, Plaintiffs, v. Honorable James C. KIRKPATRICK, Secretary of State of Missouri, Defendant. City of St. Louis, Vincent C. Schoemehl, Jr., and Geraldine Osborn, Intervenors. and St. Louis Regional Commerce and Growth Association, James M. O'Flynn, and John H. Poelker, Intervenors. William OVERSCHMIDT, Adolph Schatzle, Brian Hall, Mickey Brown, George Engelback, Earl Heitmann and Cecil Crutchfield, Plaintiffs, v. Hon. James C. KIRKPATRICK, Secretary of State of Missouri, Defendant. MISSOURI STATE CONFERENCE OF BRANCHES OF the NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, INC., St. Louis Branch, NAACP, St. Louis County Branch, NAACP, Cape Girardeau Branch, NAACP, Festus-Crystal City Branch, NAACP, Hannibal Branch, NAACP, Malden Branch, NAACP, Mexico Branch, NAACP, Portageville Branch, NAACP, St. Charles Branch, NAACP, Fredda Witherspoon and James DeClue, Plaintiffs, v. Honorable Christopher BOND, Governor, and Honorable James C. Kirkpatrick, Secretary of State of the State of Missouri, Defendants. MISSOURI STATE CONFERENCE OF BRANCHES OF the NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, INC., Kansas City Branch, NAACP, St. Joseph Branch, NAACP, Jefferson City Branch, NAACP, Columbia Branch, NAACP, Chillicothe Branch, NAACP, Kennett-Dunklin, NAACP, Marshall Branch, NAACP, Joplin Branch, NAACP, Dr. Fredda Witherspoon and Mr. Ommie L. Nelms, Plaintiffs, v. Honorable Christopher BOND, Governor, and Honorable James C. Kirkpatrick, Secretary of State of the State of Missouri, Defendants. |
| Court | U.S. District Court — Western District of Missouri |
COPYRIGHT MATERIAL OMITTED
Harold L. Fridkin, Linde, Thomson, Fairchild, Langworthy, Kohn & Van Dyke, Kansas City, Mo., for plaintiffs.
John W. Ashcroft, Atty. Gen., Michael H. Finkelstein, Asst. Atty. Gen., Jefferson City, Mo., for defendant.
James J. Wilson, Asst. City Counselor, Carroll J. Donohue, St. Louis, Mo., for intervenors.
Before FLOYD R. GIBSON, Senior Circuit Judge, WANGELIN, Chief District Judge, and SCOTT O. WRIGHT, District Judge.
FLOYD R. GIBSON, Senior Circuit Judge, joined by SCOTT O. WRIGHT, District Judge.
This is an action in which the court is being asked to redistrict the State of Missouri into nine congressional districts. Missouri is currently divided into ten districts pursuant to the congressional allocation of 1972 and as set forth in Preisler v. Secretary of State, 341 F.Supp. 1158 (W.D.Mo. 1972), aff'd mem. sub nom. Danforth v. Preisler, 407 U.S. 901, 92 S.Ct. 2440, 32 L.Ed.2d 678 (1972). Because of the population count disclosed by the 1980 decennial census, Missouri is now entitled to only nine members in the United States House of Representatives. In accordance with federal constitutional requirements, appropriate federal legislation, and pertinent Missouri statutes and constitutional provisions, Missouri is obligated to divide the state into nine congressional districts. It has failed to enact an apportionment plan.
Shortly after the Missouri General Assembly adjourned its regular session on June 15, 1981, without passing a congressional redistricting bill, actions seeking a court-ordered apportionment plan were filed in both the Eastern and Western Districts of Missouri.
The parties challenged the constitutionality of the existing apportionment (now outdated by the new population figures and decreased allocation of congressional districts); therefore, three-judge courts were established pursuant to 28 U.S.C. § 2284(a) (1976). The same judges were named to each panel. The allegations of an unconstitutional apportionment provide the jurisdictional basis. This court has jurisdiction under 28 U.S.C.A. § 1331 (1981 Supp.) (federal question) and 28 U.S.C. § 1343(a)(3) (Supp. III 1979) (). The parties also alleged a violation of 42 U.S.C. § 1983 (Supp. III 1979), which provides for liability for deprivation of constitutional rights.
We determined that according to 28 U.S.C. § 1391(b) (1976) venue was proper only in the Western District. Section 1391(b) allows a claim to be brought only where all defendants reside or where the claim arose. A claim arises where the complained-of acts or omissions of a defendant occur. 92 C.J.S. Venue § 80. The defendant, Honorable James C. Kirkpatrick, Secretary of State, has his offices in the Western District (Jefferson City, Missouri), and his actions relating to elections would occur in the Western District. Therefore, a claim based on his conduct would accrue where his election duties are performed, i.e., the Western District of Missouri. The two cases filed in the Eastern District were transferred to the Western District and consolidated with the actions that were filed in the Western District. All motions to intervene were granted.
We held a hearing on September 28, 1981. Interested persons, both parties and non-parties, were allowed to present plans and suggestions for redistricting. Other plans and suggestions were subsequently filed with the clerk of the court.
In November 1981, the Governor called a special legislative session to consider the congressional redistricting issue. To prevent speculation on the plans of the court from affecting legislative action, we held no hearings and issued no orders while the General Assembly was in session. The General Assembly adjourned its extraordinary session on December 17, 1981, without passing an apportionment plan. Thus, this court is left with the task of providing an apportionment remedy.
According to 28 U.S.C. § 2284(a) (1976): "A district court of three judges shall be convened when ... an action is filed challenging the constitutionality of the apportionment of congressional districts ...." The parties alleged a violation of their rights under Article I, § 2 of the United States Constitution. Paragraph 3 of that section reads: "Representatives ... shall be apportioned among the several States which may be included within this Union, according to their respective Numbers ...." Paragraph 1 states: "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States ...." Missouri has not enacted a redistricting law consistent with paragraph 3, and failure to do so could result in a deprivation of the right to select representatives, a violation of paragraph 1. Therefore the constitutionality of the present, ten-district apportionment is called into question. It is apparent that the present apportionment plan (based on the 1970 census figures and subsequent allocation of congressional seats) is unconstitutional.
The General Assembly's failure to provide a means for congressional representation would, if unremedied, result in an unconstitutional deprivation of the Article I, § 2, ¶ 1 right of the people to select representatives. Indeed, one authority has called a legislature's failure to reapportion in light of new census figures "patently and obviously unconstitutional." Wright, Miller, and Cooper, Federal Practice and Procedure, § 4235, at 400; see Ryan v. Board of Elections, 661 F.2d 1130, 1135 (7th Cir. 1981). The apportionment ordered in Preisler v. Secretary of State, 341 F.Supp. 1158 (W.D.Mo.1972), is now outmoded and is unconstitutional because it fails to provide a means by which Missouri can choose its nine representatives.
Our next task is to determine the proper remedy.
In formulating the proper remedy, we first note that a declaratory judgment is one permissible remedy. Under 28 U.S.C. § 2201 (Supp. II 1978), that remedy is available in cases of "actual controversy," and 28 U.S.C. § 2202 (1976) allows for further relief based on a declaratory judgment. We are also aware that 42 U.S.C. § 1988 (1976) requires use of the common law when necessary to furnish suitable remedies. That section is applicable to the instant case because it applies to actions brought under 42 U.S.C. § 1983 (Supp. III 1979). See section I, supra.
Beyond these general considerations, we perceive two possible remedies. First, we could draw a court plan. Second, we could have elections at large, either by court order or by dismissal of the actions.
The first option was adopted by the three-judge court in Preisler v. Secretary of State. There the court also found an apportionment unconstitutional. In that case, population shifts disclosed by the 1970 census showed population variances between districts so great as to be unconstitutional. 341 F.Supp. at 1160. To remedy the situation the court invalidated the then-existing apportionment and drew a map which substantially achieved population equality.
A second option would be to order an election at large, or to dismiss the court actions with the assumption that an election at large would be held. The basis for this option would be 2 U.S.C. § 2a(c)(5) (1976), passed in 1929, which reads: "Until a State is redistricted in the manner provided by the law thereof after any apportionment, ... if there is a decrease in the number of Representatives and the number of districts in such State exceeds such decreased number of Representatives, they shall be elected from the State at large."
On the other hand, a statute subsequently enacted in 1967, 2 U.S.C. § 2c (1976), appears to prohibit at-large elections. It reads: "In each State entitled ... to more than one Representative ..., there shall be established by law a number of districts equal to the number of Representatives to which such State is so entitled, and Representatives shall be elected only from districts so established, no district to elect more than one Representative ...." The difficulty results from the fact that neither section 2c nor its...
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