Sincock v. Gately

• Decision Date: 10 January 1967
• Docket Number: Civ. A. No. 2470.
• Citation: 262 F. Supp. 739
• Parties: Richard SINCOCK et al., Plaintiffs, v. Mabel V. Roman GATELY et al., Defendants.
• Court: U.S. District Court — District of Delaware

262 F. Supp. 739

Richard SINCOCK et al., Plaintiffs, v. Mabel V. Roman GATELY et al., Defendants.

Civ. A. No. 2470.

United States District Court D. Delaware.

January 10, 1967.

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Vincent A. Theisen and Victor F. Battaglia, Wilmington, Del., for plaintiffs.

David P. Buckson, Atty. Gen., Dover, Delaware, Frank O'Donnell, Wilmington, Del., James H. Hughes, III, Dover, Del., H. Edward Maull, Georgetown, Del., Roy S. Shiels, Dover, Del., for defendants.

Before BIGGS, Circuit Judge, and WRIGHT and LAYTON, District Judges.

BIGGS, Circuit Judge.

I. History and Factual Background of the Present Litigation

The case at bar has a long history that requires only a résumé here for that history appears fully in the decisions cited in the footnote.¹ It is sufficient to state here that the suit at bar was brought originally as a class action by seven citizens, taxpayers and voters of urban and suburban areas of Delaware. An adjudication was sought that Section 2, Article II of the Constitution of the State of Delaware of 1897, as amended, Del.C.Ann., and the 1963 Amendments thereto, were in violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the Constitution of the United States. The election officers were named as defendants and are still named as such but it should be borne in mind that certain former defendants have been relieved as parties by reason of their quitting office upon the ending of their terms and the elections of their successors who have been substituted as party-defendants. These facts have no substantial bearing on the issues presented by this litigation in its present form.

We held that Section 2, Article II, of the Constitution of the State of Delaware and the 1963 Amendments thereto constituted a violation of the Equal Protection Clause of the Fourteenth Amendment. Sincock v. Duffy, D.C., 215 F. Supp. 169 (1963). Following the entry of our judgments an appeal was taken to the Supreme Court of the United States. Following the affirmance of our decision by the Supreme Court in Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620 (1964), two new statutes, designated as (Senate Bill) S.B. 332 and S.B. 336, created a new apportionment for Delaware, an apportionment which became effective on July 13, 1964. For the sake of convenience, rather than repeating S.B. 332 and S.B. 336 verbatim here, we refer to Title 29 of the Delaware Code Annotated. S.B. 332 appears in toto in Subchapter I, Sections 601-609. S.B. 336, which sets out the districts of the General Assembly appears in toto in Subchapters II to VI, inclusive, Sections 621-622, 631-632, 641-642, 651-652 and 661. 29 Del.C.Ann.Cum.Supp.² We shall quote certain portions of S.B. 332 and S.B. 336 hereinafter as need arises.

S.B. 332 provides for a House of Representatives to be composed of 35 members to hold office for 2 years, that the State be divided into 35 representative districts, and that each representative district choose one representative. S.B. 332 provides for a Senate to be composed of 18 members each to hold office for 4 years. The State is divided into 18 senatorial districts, each of which shall elect one senator. S.B. 332 states that the terms of office of the several senators shall be so staggered that not more than 9 senators shall be elected at each biennial general election. The Act further provides that there shall be 8 representative districts in the City of Wilmington, 16 representative districts in New Castle County outside the City of Wilmington, 5 representative districts in Kent County, and 6 representative districts in Sussex County. The Act further provides that there shall be 4 senatorial districts in the city of Wilmington, 8 senatorial districts in New Castle County outside the City of Wilmington, 3 senatorial districts in Kent County, and 3 senatorial districts in Sussex County.

Section 607 of S.B. 332 provides that "The General Assembly shall determine the boundaries of the several Representative and Senatorial Districts within the City of Wilmington and within the several counties by an act of the General Assembly in such manner as there shall be substantial equality of population among the several Representative Districts and among the several Senatorial Districts."

Section 609 of S.B. 332 provides that the newly created apportionment shall continue in effect until the official reporting by the President of the United States of the Federal Decennial Census of 1970, and that after the reporting of each following Federal Decennial Census, the General Assembly shall reapportion and redistrict the State in such a manner that the several representative and senatorial districts shall be substantially equal in population.

S.B. 332 was enacted by the General Assembly on July 6, 1964, and S.B. 336 was enacted by it on July 8, 1964.³ S.B. 336 designates the boundaries of representative and senatorial districts in the City of Wilmington largely street by street.

S.B. 336 designates the boundaries of representative districts in New Castle County, outside the City of Wilmington, by boundaries consisting of state, county and city lines, roads, railroads, creeks (small rivers), the Chesapeake and Delaware Canal, and other boundaries which in most cases are clearly identifiable except that the 15th, 19th and 24th representative districts are defined as portions of Hundreds⁴ not included in other representative districts. The senatorial districts of New Castle County, outside of Wilmington, comprise combinations of representative districts in New Castle County, outside of Wilmington, by number, as designated in that portion of S.B. 336 relating to representative districts.

S.B. 336 defines the boundaries of the General Assembly representative districts in Kent County by combining the heretofore existing representative districts of Kent County. Sections 641(a) and 641(d) dealing respectively with the 25th and 28th representative districts in Kent County perhaps are typical. Section 641(a) states: "The twenty-fifth Representative District shall comprise all of the heretofore existing and constituted First, Third and Fourth Representative Districts of Kent County." Section 641(d) provides: "The twenty-eighth Representative District shall comprise all of the heretofore existing and constituted Seventh and Eighth Representative Districts of Kent County and the heretofore existing and constituted First Election District of the Sixth Representative District of Kent County."

S.B. 336 states that the senatorial districts of Kent County shall be composed of new combinations of the previously existing representative districts and of certain of the old election districts of Kent County as designated.

S.B. 336 provides that the several representative districts of Sussex County shall be composed of the previously existing representative districts and of certain old election districts of Sussex County. In this connection the provisions of Section 651(a), relating to the 30th representative district, may be deemed to be typical: "The thirtieth Representative District shall comprise all of the heretofore existing and constituted First Representative District of Sussex County and all of the heretofore existing and constituted First and Third election districts of the Second Representative District of Sussex County."

We shall discuss the phrase "heretofore existing and constituted" as referred to in Sections 641(a), 641(d) and 651(a), at a later point in this opinion.

S.B. 336 states that the senatorial districts shall be composed of combinations of the new representative districts.

Section 661 of S.B. 336, headed "Effectuation", provides: "Preparing and filing maps of districts. (a) The respective Departments of Elections shall cause to be prepared by Registered Land Surveyors maps of each county showing the boundaries of the several General Assembly districts. (b) The Registered Land Surveyors who prepare the maps shall certify on them as to their correctness and the respective Departments of Elections shall cause the appropriate maps to be recorded in the Recorders Office in the County for which the maps are prepared. Upon such recording, the maps shall be prima facie evidence in all judicial proceedings as to the correctness of the boundaries. (c) The several Departments of Elections shall cause such additional copies of the maps, as they deem necessary to properly advise the public, to be prepared and distributed." Maps referred to in Section 661 have been certified and filed and we shall deal with them at a later point in this opinion.

II. Facts Relating to the Preparation of S.B. 332 and S.B. 336

Shortly after the decision of the Supreme Court in Roman v. Sincock on June 15, 1964, a meeting or a series of meetings were held in the Capitol Building at Dover, Delaware, on or about June 17, by members of the Democratic party to discuss proposals to be put before the General Assembly to provide for reapportionment in accordance with the decision of the Supreme Court in Roman v. Sincock and the related Supreme Court decisions.⁵, ⁶ On June 22, 1964, Governor Carvel held a meeting of the leaders of both parties in the Legislature. This meeting was called as a bipartisan meeting, but during the course of it the Governor stated, according to the uncontradicted testimony of Senator Reynolds duPont, "that the majority party was the majority party and it was going to do the reapportionment."⁷ In respect to S.B. 332 Senator Allen J. Cook, President pro tempore of the Senate advised the Senate in the course of the limited debate immediately preceding the passage of the bill through the Senate, that S.B. 332 was "the majority party's bill," and they were going to make the best effort "because they were the majority, to take care of the Democratic party in the redistricting." It is a permissible inference to be drawn by the triers of fact, and ...