State of Mont. v. US Dept. of Commerce, CV 91-22-H-CCL.

• Court: United States District Courts. 9th Circuit. United States District Court (Montana)
• Citation: 775 F. Supp. 1358
• Docket Number: No. CV 91-22-H-CCL.,CV 91-22-H-CCL.
• Parties: The STATE OF MONTANA; Stan Stephens, Governor of the State of Montana; Marc Racicot, Attorney General for the State of Montana; Mike Cooney, Secretary of State for the State of Montana; Max Baucus, United States Senator; Conrad Burns, United States Senator; Pat Williams, United States Representative; and Ron Marlenee, United States Representative, Plaintiffs, v. UNITED STATES DEPARTMENT OF COMMERCE; Robert A. Mosbacher, Secretary of United States Department of Commerce; Bureau of the Census; Barbara Everitt Bryant, Director of the Bureau of the Census; and Donnald K. Anderson, Clerk of the United States House of Representatives, Defendants.
• Decision Date: 18 October 1991

775 F. Supp. 1358

The STATE OF MONTANA; Stan Stephens, Governor of the State of Montana; Marc Racicot, Attorney General for the State of Montana; Mike Cooney, Secretary of State for the State of Montana; Max Baucus, United States Senator; Conrad Burns, United States Senator; Pat Williams, United States Representative; and Ron Marlenee, United States Representative, Plaintiffs,
v.
UNITED STATES DEPARTMENT OF COMMERCE; Robert A. Mosbacher, Secretary of United States Department of Commerce; Bureau of the Census; Barbara Everitt Bryant, Director of the Bureau of the Census; and Donnald K. Anderson, Clerk of the United States House of Representatives, Defendants.

No. CV 91-22-H-CCL.

United States District Court, D. Montana, Helena Division.

October 18, 1991.

775 F. Supp. 1359

Elizabeth S. Baker, Asst. Atty. Gen., Marc Racicot, Atty. Gen., Clay R. Smith, Atty. Gen. Office, State of Mont., Helena, Mont., Kenneth Eikenberry, James M. Johnson, Charles F. Secrest, Office of Atty. Gen., Olympia, Wash., for plaintiffs.

Kris McLean, Asst. U.S. Atty., Sandra M. Schraibman, Susan L. Korytkowski, Mark H. Murphy, U.S. Dept. of Justice, Civ. Div., Michael Murray, Steve Ross, Office of Gen. Counsel, U.S. House of Representatives, Washington D.C., for defendants.

OPINION AND ORDER

Before O'SCANNLAIN, Circuit Judge, LOVELL, District Judge, and BATTIN, Senior District Judge.

LOVELL, District Judge, and BATTIN, Senior District Judge:

This matter came on for hearing September 3, 1991, before a three-judge-court composed of United States Circuit Judge Diarmuid F. O'Scannlain, United States Senior District Judge James F. Battin, and United States District Judge Charles C. Lovell, on cross-motions for summary judgment and also on Defendants' motion to review Judge Lovell's August 15, 1991, order. Plaintiffs were represented by Marc Racicot, Clay Smith, and Elizabeth S. Baker; and Defendants were represented by Susan L. Korytkowski and Mark H. Murphy. Having fully considered the presentations of the parties and the briefs filed in response to these motions, the court now enters its Opinion and Order.

PROCEDURAL HISTORY

Plaintiffs commenced this action on May 22, 1991, by filing their complaint for declaratory and injunctive relief, motions for preliminary injunction and for convening of three-judge-court, and affidavits and briefs in support thereof. After considering Plaintiffs' motion for convening of three-judge-court, Judge Lovell, on May 24, 1991, notified the Chief Judge of the Ninth Circuit Court of Appeals that the matter was appropriate for consideration by a three-judge-court.

A status conference with counsel was conducted on June 24, 1991, and the court set down a schedule for the filing and briefing of potentially dispositive motions. During that conference, the parties agreed that this matter could ultimately be submitted for decision on cross-motions for summary judgment. On July 9, 1991, the parties were notified that the other two judges had been designated and that the court intended to set the motion for preliminary injunction for hearing on September 3, 1991.

After denying Defendants' motions to dismiss Plaintiffs' complaint and to dissolve the three-judge-court, by order of August 15, 1991, Judge Lovell set a schedule for the filing and briefing of cross-motions for summary judgment and also the motion to review the August 15, 1991, order. Those motions all came on regularly for hearing before the three-judge-court on September 3, 1991.

ARGUMENTS

Plaintiffs seek to prohibit Defendants from effecting a reapportionment of the United States House of Representatives for the 1992 congressional election based on the method prescribed by Title 2, United States Code, section 2a. Plaintiffs Stephens, Racicot, and Cooney bring this claim on behalf of all voters of the state of Montana, claiming that the latest apportionment unconstitutionally denies Montana voters equal representation as required by Article I, Section 2 of the Constitution. Plaintiffs Baucus, Burns, Williams, and Marlenee (Congressional Delegation Plaintiffs) claim that the automatic apportionment method deprives them of the opportunity to vote on the decennial apportionment.

775 F. Supp. 1360

Defendants contend that this case is not appropriate for submission to a three-judge-court because it involves apportionment among the states rather than within the states. Defendants also argue that the complaint raises a nonjusticiable political question and that Plaintiffs lack standing to bring either the first or second claims for relief in the complaint. Finally, Defendants argue that even if the court proceeds to the merits of Plaintiffs' claim, the court should find 2 U.S.C. § 2a constitutional. Defendants contend that Congress should not be held to the same exacting standard in apportioning representatives among the states as state legislatures in apportioning representatives within states. Defendants further argue that the court should approve Congress' choice of an apportionment method so long as Congress had a rational basis for that choice.

REVIEW OF AUGUST 15, 1991, ORDER

Before addressing the merits of Plaintiffs' claims, the three-judge-court initially reviews the order previously entered by Judge Lovell. Defendants seek review of the order denying their motion to dismiss Plaintiffs' complaint. Defendants first raised their justiciability and standing arguments in that motion to dismiss. The motion also requested that the three-judge-court be dissolved, claiming that the issues raised by Plaintiffs are not appropriate for submission to a three-judge-court. The three-judge-court has reviewed the briefs submitted by the parties relating both to Defendants' original motion to dismiss and to Defendants' motion to review the order entered by Judge Lovell, and has considered the arguments raised at the hearing.

A. Three-Judge Court

Section 2284 of Title 28, United States Code, provides:

A district court of three judges shall be convened when otherwise required by Act of Congress, or when an action is filed challenging the constitutionality of the apportionment of Congressional districts or the apportionment of any state-wide legislative body.

Plaintiffs filed this action challenging the constitutionality of Congress' apportionment of Congressional districts among the states. Therefore, this matter is appropriate for submission to a three-judge-court.

B. Political Question

The three-judge-court has reviewed the formulations traditionally employed to describe nonjusticiable political questions, and has determined that Plaintiffs' claims do not fall within any of those formulations. Plaintiffs' complaint calls upon this court to interpret the constitution and to decide whether the 1990 apportionment of representatives among the states meets the standards established by Article I, Section 2 of the Constitution. Constitutional interpretation is the responsibility of the judiciary, Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 706, 7 L.Ed.2d 663 (1962), and this court will not shirk that responsibility.

C. Standing

Plaintiffs allege, in the first count of their complaint, that the current apportionment deprives voters in the state of Montana of equal representation in the House of Representatives. This injury to Plaintiffs' voting power can be traced to the use of an allegedly unconstitutional apportionment method, and there is a substantial likelihood that the injury will be redressed if Congress is forced to adopt a constitutional method.

Congressional Delegation Plaintiffs allege, in the second count of their complaint, that the automatic apportionment method deprives them of their opportunity to vote on legislation effecting the decennial census. This injury can be traced to the automatic nature of the current apportionment statute, and there is a substantial likelihood that the injury will be redressed if the court grants Plaintiffs the relief sought and declares the automatic apportionment statute unconstitutional. Plaintiffs have established their standing as to both counts of their complaint.

For the forgoing reasons, the three-judge-court hereby approves and adopts Judge Lovell's August 15, 1991, order denying

775 F. Supp. 1361

Defendants' motion to dismiss and to dissolve three-judge-court

CROSS-MOTIONS FOR SUMMARY JUDGMENT

Summary judgment is properly granted under Rule 56(c), Federal Rules of Civil Procedure, if "the pleadings and supporting materials show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." California Architectural Building Products, Inc. v. Franciscan Ceramics, 818 F.2d 1466, 1468 (9th Cir.1987), cert. denied, 484 U.S. 1006, 108 S.Ct. 698, 98 L.Ed.2d 650 (1988). Both parties having agreed that there are no genuine issues of material fact in dispute, the court must now decide the legal issues raised by the parties.

One of the greatest controversies during the Constitutional Convention of 1787 concerned the issue of how representation would be apportioned in the new government's legislative body. 1 Records of the Federal Convention of 1787 321 (Farrand ed. 1911) (hereinafter Farrand). The more populous states argued that representatives should be apportioned according to population, and the less populous states argued that each state should have equal representation. When the inability to resolve this issue threatened to end the convention without formulating a constitution, Benjamin Franklin proposed what has become known as the "Great Compromise." Id. at 488. That compromise resulted in the creation of the two houses which make up this nation's current legislative branch. According to the framers, the House of Representatives would be apportioned on the basis of population and would represent the people, and each state would be represented equally in the Senate which would therefore represent the states. Id. at 462. As...