Sincock v. Terry

• Decision Date: 25 July 1962
• Docket Number: Civ. A. No. 2470.
• Parties: Richard SINCOCK et al., Plaintiffs, v. Charles L. TERRY et al., Defendants.
• Court: U.S. District Court — District of Delaware

207 F. Supp. 205

Richard SINCOCK et al., Plaintiffs, v. Charles L. TERRY et al., Defendants.

Civ. A. No. 2470.

United States District Court D. Delaware.

July 25, 1962.

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

Januar D. Bove, Jr., and Frank O'Donnell, Wilmington, Del., N. Maxon Terry, and James H. Hughes, III, Dover, Del., and Robert Tunnell, Georgetown, Del., for defendants.

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

PER CURIAM.

In Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), the Supreme Court of the United States held that a court such as this had the jurisdiction to and must determine whether or not the apportioning of members of a state general assembly or legislature by geographical units offends the constitutional rights of the electors of the state under the equal protection clause of the Fourteenth Amendment of the Constitution of the United States because of an alleged debasement of their voting rights. This in substance constitutes the issue presented by the complaint at bar.

Section 2 of Article 2 of the Constitution of Delaware of 1897, Del.C.Ann. prescribes the Senatorial and Representative Districts of this State by geographical boundaries irrespective of the number of persons contained therein. Thus the ultimate issue before this court is whether or not Section 2 of Article 2 of the Constitution of Delaware contravenes the equal protection provision of the Fourteenth Amendment to the Constitution of the United States.

If this court should hold that the plaintiffs in the case at bar, and those similarly situated, all electors of the State of Delaware, are deprived of their rights under the Constitution of the United States by Section 2 of Article 2 of the Delaware Constitution, and entered a judgment to that effect, the present General Assembly and any subsequent General Assembly, the members of which were elected pursuant to Section 2 of Article 2, might be held not to be a de jure legislature and its legislative acts might be held invalid and unconstitutional. If such a judgment were entered by this court prior to any action taken by the present General Assembly to amend Section 2 of Article 2, there might be no de jure General Assembly that could effect a valid constitutional amendment, call validly for a Constitutional Convention, or even pass a valid statute. Without hearing the case at bar on the merits we cannot, of course, presently express any opinion as to the constitutional validity of Section 2 of Article 2 of the Delaware Constitution, and expressly do not do so. But the situation obviously is one clearly fraught with great danger to the people of this State.

The report of Delaware's Bipartisan Committee upon a plan for the reapportionment of its General Assembly and for the convening of a Delaware Constitutional Convention with drafts of bills was presented to the court by counsel for the moving parties and it was agreed by all counsel that the report and its accompanying bills were as presented to the Honorable Elbert N. Carvel, Governor of Delaware. It was also agreed by all counsel that the Governor has recalled the General Assembly for action in respect to matters referred to in the report on Friday, July 27, 1962. The report and exhibits represent many hours of industrious work by the Committee. But as the Committee concedes in its report the recommendations represent a compromise of divergent views.

The report recommends (A) a constitutional amendment to Article 2, Section 2 of the Delaware Constitution by act of the General Assembly passed by that body in time to comply with the publication provisions of the Constitution relative to constitutional amendments, allotting senatorial representation on a geographical basis and allotting representation in the lower house on a predetermined population basis; and, (B) immediately after the enactment of the legislation recommended in (A) the passage of an amendment to Article 16, Section 2 accelerating the date on which a constitutional convention can be held to the middle of 1963, the election of delegates thereto, however, being based upon the present geographical apportionment of representation.

We do not and cannot express any opinion whatsoever respecting the validity of the proposed legislation recommended under (A) by the Committee, but lurking in the background is the possibility that this court or the Supreme Court might be compelled in the light of Baker v. Carr, supra, to find the proposed legislation as contravening the equal protection clause of the 14th Amendment.

With respect to (B) and the Constitutional Convention to be held in conformity with the proposed amendment, the plaintiffs assert that delegates selected to participate in that convention, based upon the present geographical apportionment of representation, would also be subject to attack because of constitutional infirmity. Again, we cannot and do not express any opinion as to the merits of the plaintiffs' position. We merely allude to this to indicate the vast amount of complex and time consuming litigation which...