Silver v. Jordan

• Decision Date: 01 June 1965
• Docket Number: No. 62-953 MC.,62-953 MC.
• Citation: 241 F. Supp. 576
• Parties: Phill SILVER, as a citizen of the United States and of the State of California, etc., Plaintiff, v. Frank M. JORDAN, in his official capacity as Secretary of State of California, et al., Defendants.
• Court: U.S. District Court — Southern District of California

241 F. Supp. 576

Phill SILVER, as a citizen of the United States and of the State of California, etc., Plaintiff,

v.

Frank M. JORDAN, in his official capacity as Secretary of State of California, et al., Defendants.

No. 62-953 MC.

United States District Court S. D. California, Central Division.

December 3, 1964.

Judgment Affirmed June 1, 1965.

Phill Silver, Los Angeles, Cal., for plaintiff.

Thomas C. Lynch, Atty. Gen., Charles E. Corker, Charles A. Barett, Asst. Attys. Gen., Sanford N. Gruskin, Deputy Atty. Gen., Los Angeles, Cal., A. C. Morrison, Legislative Counsel, George H. Murphy, Chief Deputy, Legislative Counsel, J. Gould, Principal Deputy Legislative Counsel, Sacramento, Cal., Herman F. Selvin, Sp. Counsel, Los Angeles, Cal., Edwin J. Regan, Senator, Weaverville, Cal., of counsel, for defendants.

Before BARNES, Circuit Judge, and CROCKER and CARR, District Judges.

Judgment Affirmed June 1, 1965. See 85 S.Ct. 1572.

PER CURIAM.

Since the historic pronouncement by the Supreme Court of the United States in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (decided March 26, 1962), the federal courts of the United States have been literally flooded with suits by voters, alleging either "the debasement" of their vote by state legislative action, or by the failure or alleged inability of the state legislature to act pursuant to constitutional requirements, which in either event have resulted in "invidious discrimination" against the litigant, and others in his class, which amounts to or results in a violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution. This is one of those cases.

Plaintiff, Phill Silver, filed this class action on July 16, 1962, as a citizen of the United States and of California, and as an elector and registered voter of Los Angeles County, on his own behalf and on behalf of all other citizens, electors, and registered voters of the State of California, similarly situated. The defendants are sued in their representative capacities as State officials, performing duties in respect to State elections.

The complaint alleged a deprivation of rights under the California Constitution and under the Equal Protection Clause of the Fourteenth Amendment. It is asserted, and we hold, that this court has jurisdiction under the Civil Rights Act, 42 U.S.C. §§ 1983, 1988, and 28 U.S.C. § 1343(3). Relief is prayed for under 28 U.S.C. §§ 2201, 2202.

Since relief was sought under the Federal Declaratory Judgment Act (28 U.S.C. §§ 2201, 2202), a three-judge District Court was convened. The plaintiff prayed for injunctive relief to enjoin the 1962 General Election as it applied to the election of State Senators. Plaintiff alleged that the present apportionment of the California State Senate, (Cal. Const. Art. IV, Sec. 6, as amended in 1926), deprived him and all others similarly situated of due process of law and the equal protection of the law. Furthermore, he alleged that his right to equal suffrage in a free and equal election had been deprived in violation of both the California Constitution and the Fourteenth Amendment of the U. S. Constitution.

On August 30, 1962, this court handed down its opinion and order (Civil Action No. 62-953 MC) holding that it had jurisdiction, Baker v. Carr, supra at 204-08, 82 S.Ct. 691, and that the subject matter of this suit was justiciable, not a non-justiciable political question regarding the relationship between the judiciary and its co-ordinate branches of the Federal Government. Baker v. Carr, supra at 208-36, especially at 217, 82 S.Ct. 691. All of defendants' motions to dismiss were denied. However, this court, while retaining jurisdiction, denied any injunctive relief at that time, as there was then available to the plaintiff a State remedy, namely, the Initiative Measure on the 1962 General Election Ballot, Proposition 23, which, if passed, would have reapportioned the State Senate.

II

The California Constitution of 1849 and the revised Constitution of 1879 provided for representation on the basis of population in both houses of the Legislature (Cal.Const.1849, Art. IV, §§ 28-29; Cal.Const.1879, Art. IV, § 6) and vested the entire lawmaking power of the State in that body. (Cal.Const.1849, Art. IV, § 29; Cal.Const.1879, Art. IV, § 6).

In response to Governor Hiram Johnson's call to allow the people the right to check any abuse of power by the Legislature, the Legislature in 1911 submitted to the voters of the state a constitutional amendment, which was passed by the electorate, reserving to them the right to initiate and enact laws, which is the initiative, and to prevent laws enacted from becoming effective, which is the referendum. (Cal.Const. Art. IV, § 1; Hichborn, Story of the California Legislature of 1911, p. 93).

After the 1920 decennial census, the 1921, 1923 and 1925 sessions of the State Legislature failed to enact any reapportionment scheme, as demanded by the U. S. Constitution, Art. I, § 2. The people of the State responded to the inaction of the legislators and on the 1926 election ballot they qualified two proposals by initiative for the consideration of the electorate. Proposition 20 would have retained the apportionment of the two houses as they then existed, namely, on a population basis; whereas, Proposition 28 presented the so-called "Federal Plan" to the electorate, which would retain the Assembly's apportionment on a population basis, but the State Senate was to be apportioned largely on a geographic basis. Proposition 28 was based on existing representation in the Congress of the United States. Proposition 28 was adopted, and Proposition 20 was rejected. Thus, since 1926, California has retained this "Federal Plan" in its apportionment of seats in the California Legislature. It is this amendment to Art. IV, § 6 of the California Constitution, which the plaintiff challenges here. Since the adoption of Proposition 28 in 1926, the State Legislature has never failed to comply with the Federal requirement of apportioning its seats every ten years in accordance with the Federal Census.

Presently, the State of California is divided into forty senatorial districts. Furthermore, no county is to have more than one representative in the Senate, and no Senator is to represent more than three counties. (Cal.Const. Art. IV, § 6, Cal.Elections Code § 30100). There is no controversy here over the constitutionality of the apportionment of seats in the State Assembly, containing 80 members, since the apportionment in the lower house is based solely on population. (Cal. Const. Art. IV, § 6; Cal.Elections Code § 30201).

Since the Amendment to Article IV, Section 6 was adopted in 1926, there have been four attempts by the initiative process to revert back to the pre-1926 apportionment. But the electorate in 1928, 1948, 1960 and most recently in 1962, has rejected these initiatives. Since 1951 there have been numerous bills introduced in the State Legislature for the apportionment of the State Senate on a population basis, but all of these attempts have been killed by the Senate or died without any action by both houses.

III

It is pertinent to note the various population disparities which exist in the present apportionment of seats in the California State Senate under Art. IV, § 6, as amended in 1926. For example, according to the last Federal Census (1960), the population of the 38th Senatorial District, comprising Los Angeles County, is 6,380,771. The population of the 28th Senatorial District, comprising Mono, Inyo, and Alpine Counties, is 14,294. This is a ratio of almost 450:1. Other great disparities exist with respect to other Senatorial Districts, i. e., 40th Senatorial District, San Diego County, 100:1 as compared to District 28; 16th Senatorial District, Alameda County, 90:1 as compared to District 28; 14th Senatorial District, San Francisco County, 60:1 as compared with District 28; 35th Senatorial District, Orange County, 50:1 as compared to District 28; to name a few. Thus about one-third of the total population of the State of California today controls more than two-thirds of the representation in the State Senate. (See U. S. Census of Population, 1960, California, U. S. Department of Commerce, Bureau of the Census, p. 23).

IV

INTERVENTION OF THE STATE SENATE

The California State Senate's motion to intervene as a substantially interested party was granted because it would be directly affected by the decree of this court. Fed.R.Civ.P. 24(a) (2); Calif.Const. Art. IV, §§ 1, 4, 5 and 6; California v. United States, 180 F.2d 596 (9th Cir. 1950); Kozak v. Wells, 278 F.2d 104 (8th Cir. 1960); Ex Parte D. O. McCarthy, 29 Cal. 395 (1866).

V

LEGAL EFFECT UPON THIS SUIT OF THE VARIOUS LITIGATION INITIATED IN THE CALIFORNIA SUPREME COURT BY APPLICATIONS FOR WRITS OF MANDAMUS, WHICH WERE ALL DENIED

In Yorty v. Anderson, 60 Cal.2d 312, 33 Cal.Rptr. 97, 384 P.2d 417 (1963); Yorty v. Jordan, Sac. No. 7543 (appealed to the U. S. Supreme Court, October 1964 Term, Case No. 250, and dismissed for want of jurisdiction on October 12, 1964, 379 U.S. 8, 85 S.Ct. 68, 13 L.Ed.2d 22); and Yorty v. Jordan, Sac. No. 7582, the plaintiffs sought a writ of mandate from the Supreme Court of the State of California to compel a reapportionment of the Senate of Legislature of the State of California on a population basis.

In denying a writ in the last named case, the Supreme Court of California said:

"The petition to intervene and the petition for the writ of mandate are denied for the reason that any determination by this court on the question of legislative reapportionment would be premature until such time as the Legislature has had an opportunity to consider the matter and to take such action as it may deem to be required pursuant to the expression of the United States Supreme Court in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, and companion cases."

None of these cases...