Silver v. Brown

• Decision Date: 01 September 1965
• Citation: 63 Cal.2d 270,405 P.2d 132,46 Cal.Rptr. 308
• Court: California Supreme Court
• Parties: , 405 P.2d 132 Phill SILVER et al., Petitioners, v. Edmund G. BROWN, as Governor of the State of California et al., Respondents, The Senate of the State of California et al., Interveners. Philip ADAMS et al., Petitioners, v. Edmund G. BROWN, as Governor of the State of California, et al., Respondents, The Assembly of the State of California et al., Interveners. Sac. 7679, 7681.

Page 308

46 Cal.Rptr. 308

63 Cal.2d 270, 405 P.2d 132

Phill SILVER et al., Petitioners, v. Edmund G. BROWN, as Governor of the State of California et al., Respondents, The Senate of the State of California et al., Interveners.

Philip ADAMS et al., Petitioners, v. Edmund G. BROWN, as Governor of the State of California, et al., Respondents, The Assembly of the State of California et al., Interveners.

Sac. 7679, 7681.

Supreme Court of California, In Bank.

Sept. 1, 1965.

Rehearing Denied Sept. 29, 1965.

Phill Silver, Hollywood, in pro. per., for petitioners in Sec. 7679.

Philip Adams, Edward Napier Thomson, San Francisco, and Roland Adickes, in pro. per., for petitioners in Sac. 7681.

Thomas C. Lynch, Atty. Gen., Charles A. Barrett, Asst. Atty. Gen., and Sanford N. Gruskin, Deputy Atty. Gen., for respondents in Sac. 7679.

Thomas C. Lynch, Atty. Gen., Charles A. Barrett, Asst. Atty. Gen., Sanford N. Gruskin, Deputy Atty. Gen., and Herman F. Salvin, Los Angeles, for respondents in Sac. 7681.

Musick, Peeler & Garrett, Gerald G. Kelly, Richard T. Apel, William J. Emanuel, Bruce A. Bevan, Jr., Herman F. Selvin, Los Angeles, Adrian Kuyper, County Counsel (Orange), Seymour S. Pizer, Asst. County Counsel Woodruff J. Deem, Dist. Atty. (Ventura), and Paul L. McKaskle, Deputy Dist. Atty., for interveners in Sac. 7679.

Phill Silver, Hollywood, in pro. per., Musick, Peeler & Garrett, Gerald G. Kelly, Richard T. Apel, William J. Emanuel, Los Angeles, Adrian Kuyper, County Counsel (Orange), Seymour S. Pizer, Asst. County Counsel, Woodruff J. Deem, Dist. Atty. (Ventura), and Paul L. McKaskle, Deputy Dist. Atty., for interveners in Sac. 7681.

Edward Napier Thomson, San Francisco, in pro. per., Gerald N. Hill, San Francisco, and Gabriel Solomon, Bakersfield, amici curiae in Sac. 7681.

TRAYNOR, Chief Justice.

In these proceedings petitioners as citizens, taxpayers, and voters seek writs of mandate to enforce their rights and the rights of all others similarly situated to equal protection of the laws (U.S.C.onst., Amend. XIV) in the election of senators and assemblymen to the Legislature of California. In the Senate case (Adams v. Brown), the respondents are the Governor and the Secretary of State in their capacity as officers charged with election duties, the members of the Reapportionment Commission, and the members of the Senate. One of the petitioners in the Assembly case, the Assembly, and some of its members acting in behalf of all its members are interveners in the Senate case. In the Assembly case (Silver v. Brown) the respondents are the Governor, the Secretary of State, the Attorney General, and all the members of the Assembly. The Assembly the Senate, and all the senators are interveners in the Assembly case. Other interested parties have intervened in both cases.

In 1961 the Legislature reapportioned the Sentate and Assembly (Elec.Code, §§ 30100, 30200, 30201) pursuant to section 6 of article IV of the California Constitution. That section was amended by an initiative measure in 1926 to adopt the so-called federal plan whereby the Senate is apportioned on a geographical basis and the Assembly on a modified population basis. The 1926 initiative measure also created the Reapportionment Commission to act if the Legislature failed to do so. ¹ After the United States Supreme Court held in Baker v. Carr (1962) 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, that the apportionment of state legislatures is subject to judicial challenge on equal protection grounds, an action was brought in this court to compel the Reapportionment Commission to reapportion the state Senate. (Yorty v. Anderson (1963) 60 Cal.2d 312, 33 Cal.Rptr. 97, 384 P.2d 417.) The petitioners in the Yorty case contended that the provisions of section 6 governing the apportionment of the Senate denied equal protection to the voters of the more populous counties but that the provisions of that section establishing the Reapportionment Commission were severable from its invalid parts. They asserted that the 1961 reapportionment was invalid and should be considered as a failure to reapportion within the meaning of section 6. Accordingly, they concluded that it was the duty of the Reapportionment Commission to reapportion the Senate. We held, however, that even if the Senate apportionment provisions of section 6 and the 1961 reapportionment were invalid, and even if the provisions of section 6 creating the Reapportionment Commission were severable, the Legislature should have the first opportunity to reapportion the Senate if its present apportionment were held invalid. We therefore denied the petition for a writ of mandate against the Reapportionment Commission. We pointed out, however, that the petitioners were not without a remedy; that the validity of the apportionment of the Senate could be challenged in an action for mandamus or declaratory relief against the Secretary of State as the chief officer having statewide functions with respect to the election of state senators. We noted also that such an action was then pending in the federal District Court for the Southern District of California. (Silver v. Jordan, D.C.S.C.Cal., 241 F.Supp. 576.)

Thereafter in June 1964, the United States Supreme Court held in a series of apportionment cases that each house of a bicameral state legislature must be apportioned on a population basis and that it is immaterial whether or not the electorate have the political remedy of the initiative and whether or not they have in fact adopted a malapportioned legislature by majority vote. (Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506; WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568; Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595; Davis v. Mann, 377 U.S 678, 84 S.Ct. 1453, 12 L.Ed.2d 609; Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620; Lucas v. Forty-Fourth General Assembly of State of Colorado, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632.) In reliance on these decisions the United States District Court held that the apportionment of the California Senate is unconstitutional but that the Legislature should have an opportunity constitutionally to reapportion the Senate. It deferred further action until after July 1, 1965. (Silver v. Jordan, supra (Dec. 3, 1964) 241 F.Supp. 576.) The United States Supreme Court affirmed the District Court's judgment on June 1, 1965. (Jordan v. Silver, 381 U.S. 415, 85 S.Ct. 1572, 14 L.Ed.2d 689.)

At the 1965 session of the Legislature, the Senate and the Assembly were unable to agree on a measure to reapportion the Senate, and the Legislature adjourned without meeting the federal court's July 1 deadline.

Since the validity of any apportionment of the Senate involves questions of both state and federal constitutional law and since the United States Supreme Court has stated its preference that appropriate state agencies including state courts be given adequate opportunity to adopt their own reapportionment plans before the federal courts act (Scott v. Germano (1965) 381 U.S. 407, 85 S.Ct. 1525, 1527, 14 L.Ed.2d 477 and cases cited), we took jurisdiction in the Senate case despite the pendency of the federal action. Since it also appeared that there were serious questions as to the validity of the apportionment of the Assembly, we also took jurisdiction of the Assembly case.

The invalidity of the Senate's present apportionment is of course now settled by Jordan v. Silver, supra, 381 U.S. 415, 85 S.Ct. 1572, 14 L.Ed.2d 689. Moreover, although the departures from population-based representation in the Assembly are not as extreme as those in the Senate, they are nevertheless large enough to deny equal protection under the decisions of the United States Supreme Court. The population of the largest assembly district at the time of the 1960 census was 306,191, and of the smallest, 72,105, giving a ratio of 4.25 to 1. ² On the basis solely of population an ideal district would contain one-eightieth of the total population of 15,693,338 or 196,167 persons. The largest district was 56.1 per cent larger than the ideal district, and the smallest was 63.2 per cent smaller. Voters living in districts having a minority of 44.83 per cent of the population could elect a majority of the Assembly. Of the 80 assembly districts, 24 departed from the ideal by more than 15 per cent. The City and County of San Francisco with an ideal entitlement of 3.77 assemblymen received 5, whereas Orange County with an entitlement of 3.59 received 3. San Bernardino County with an entitlement of 2.54 received 2, whereas Sacramento with an entitlement of 2.56 received 3. Riverside County with an entitlement of 1.56 received 1, whereas Kern County with an entitlement of 1.49 received 2. Although many of the more serious deviations from equal representation resulted from the requirement of section 6 of article IV that a part of a county not be joined with another county or part thereof, there appears to be no explanation for giving the City and County of San Francisco five instead of four assemblymen.

The United States Supreme Court has recognized that the policies underlying requirements of compactness and contiguity and the maintenance of the integrity of political subdivisions may justify some deviations from equally populous districts. (Reynolds v. Sims, 377 U.S. 533, 578-581, 84 S.Ct. 1362, 12 L.Ed.2d 506; Roman v. Sincock, 377 U.S. 695, 710, 84 S.Ct. 1449, 12 L.Ed.2d 620.) It has also recognized that minor discrepancies in one house may be offset by compensating discrepancies in the other and that therefore the validity of the apportionment of each house must be determined in the light of that of the other. (Reynolds v. Sims, 377 U.S. 533, 577, 84 S.Ct. 1362, 12 L.Ed.2d 506; Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 673, 84 S.Ct. 1429, 12 L.Ed.2d 595; Lucas v. Forty-Fourth General...