White v. Crowell, Civ. No. C-76-205 and C-76-233.
| Decision Date | 26 July 1977 |
| Docket Number | Civ. No. C-76-205 and C-76-233. |
| Citation | 434 F. Supp. 1119 |
| Parties | Marvin WHITE, Individually on behalf of himself and all other resident citizens and qualified electors of Shelby County, Tennessee, similarly situated, Plaintiffs, v. Gentry CROWELL, Secretary of State of the State of Tennessee, et al., Defendants. Dr. Clara BRAWNER and Roscoe McVae, on behalf of themselves and all others similarly situated, Plaintiffs, v. Gentry CROWELL, Secretary of State of the State of Tennessee, et al., Defendants. |
| Court | U.S. District Court — Western District of Tennessee |
G. Philip Arnold, Ratner, Sugarmon, Lucas, Salky & Henderson, Memphis, Tenn., Nathaniel R. Jones, New York City, for plaintiff in C-76-233.
Kenneth Herrell, Asst. Atty. Gen., State of Tenn., Nashville, Tenn., for defendants in both cases.
John L. Ryder, Laughlin, Halle, Regan, Clark & Gibson, Robert Walker, Heiskell, Donelson, Adams, Williams & Kirsch, Memphis, Tenn., for plaintiff in C-76-205.
Before PHILLIPS, Chief Circuit Judge, BROWN, Chief District Judge, and WELLFORD, District Judge.
These are actions to effect a reapportionment as to three districts from which Senators are elected to the upper house of the Tennessee legislature and to effect a reapportionment as to three districts from which Representatives are elected to the lower house of the legislature. All are single-member districts and are located in Shelby County, Tennessee. Since the claims are so nearly parallel, they were consolidated for oral argument by the three-judge court that was impanelled to consider them, and, for the same reason, the claims can be resolved in this single opinion.
Plaintiffs base these actions on the Equal Protection Clause of the Fourteenth Amendment and 42 U.S.C. §§ 1983 and 1988 and rely for jurisdiction on 28 U.S.C. §§ 1331 and 1343(3), and the court determines that jurisdiction is present.
The individuals bringing these actions seek only declaratory and injunctive relief, but they, nevertheless, seek certifications as class actions under Rule 23(b)(2), F.R.C.P. Plaintiffs contend that class action certification is of importance even in this context because, without certification, their cases may become moot before final resolution. Since defendants, while opposing class certification in their answers, did not resist such class certification at argument and since certification of suitable classes will not affect plaintiffs' claims for attorneys' fees, this court will certify a class in each case.
In the case involving Senate districts 28, 29 and 32, a class is certified consisting of all persons living in such districts; and in the case involving House districts 90, 93 and 96, a class is certified consisting of all persons living in such districts.
Following the 1970 census, the Tennessee legislature sought to reapportion itself by adopting, with respect to each house of the legislature, a principal and an alternative plan. These plans came before a three-judge court at Nashville for consideration in the case of Kopald v. Carr, 343 F.Supp. 51 (M.D.Tenn.1972). In that case, it was conceded, as the court noted, that both principal plans were unconstitutional; the court then set out some substantial changes that would be necessary to make the alternative plans constitutional. Since, however, there was an upcoming election, the court actually ordered only slight changes in the alternative plans for that election and retained jurisdiction pending further action by the Tennessee legislature at its 1973 session. The legislature, in that session, adopted the court's plans as set out in the opinion and the 1974 election was held pursuant thereto.
In 1976, the legislature made the reapportionment changes at issue here, and these actions were thereupon instituted in May of that year. However, since the upcoming primary elections were to be held so soon thereafter, this court took no action at that time.
The reapportionment of Senate districts 28, 29 and 32 was effected by an amendment to TCA § 3-102, referred to in the record as the "Gillock Amendment." According to the 1970 census, the optimum population for Senate districts in Tennessee was 118,914. Prior to this amendment, the populations, population variance from the optimum, and percentage variance from the optimum were as follows:
POPULATION PERCENTAGE
DISTRICT POPULATION VARIANCE VARIANCE
28 120,834 +1920 +1.615
29 118,922 + 8 +0.007
32 120,200 +1286 +1.081
After the amendment, these figures were as follows:
POPULATION PERCENTAGE
DISTRICT POPULATION VARIANCE VARIANCE
28 121,994 +3080 +2.590
29 122,843 +3929 +3.304
32 116,783 -2131 -1.792
As will be seen, the populations of these districts were closer to the optimum prior to the Amendment than they were after the Amendment. At the hearing, the only explanation or reason tendered to support this reapportionment was that Senator Gillock, an incumbent representing district 28, was considering moving his home to a precinct then outside his district and therefore it was necessary to reapportion these districts to bring such precinct into Senator Gillock's district.
The reapportionment of House districts 90, 93 and 96 was effected by an amendment to TCA § 3-103, referred to in the record as "HB 1407." According to the 1970 census, the optimum population for House districts in Tennessee was 39,638. Prior to this enactment, the populations, population variances from the optimum and percentage variance from the optimum were as follows:
POPULATION PERCENTAGE
DISTRICT POPULATION VARIANCE VARIANCE
90 39,641 +3 .00
93 39,714 +76 +.19
96 39,629 - 9 -.01
After the enactment, these figures were as follows:
POPULATION PERCENTAGE
DISTRICT POPULATION VARIANCE VARIANCE
90 40,700 +1062 +2.68
93 39,618 - 20 -0.05
96 38,666 - 972 -2.45
As will be seen, the populations of these districts were closer to the optimum prior to the enactment of HB 1407 than they were after this enactment, although the change with respect to district 93 was extremely small. At the hearing, the only explanation or reason tendered to support this reapportionment were those stated by Representative Spence, who was the incumbent in one of the districts and who requested the drafting of HB 1407. He testified that the purpose was to consolidate black and other lower income persons in his district, to consolidate white middle class persons in another district, and to give the other involved representative the precinct in which he had gone to high school.
In Reynolds v. Sims, 377 U.S. 533, at 568, 84 S.Ct. 1362, at 1385, 12 L.Ed.2d 506 (1964), the Supreme Court held:
In that same opinion, the Court went on to say (at 577, 84 S.Ct. at 1390):
The Court, in Reynolds, held that some deviation...
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