United States District Court, D. Idaho, Southern Division.January 10, 1964225 F.Supp. 645 (Approx. 17 pages)
225 F.Supp. 645
United States District Court, D. Idaho, Southern Division.
Walter R. HEARNE and Stanley E. Whitman, Plaintiffs,
v.
Robert E. SMYLIE, Governor of the State of Idaho, et al., Defendants.
No. 3815.
Jan. 10, 1964.
Attorneys and Law Firms
*647 McDevitt & McDevitt, H. J. McDevitt, Pocatello, Idaho, Anthony A. Nelson, Boise, Idaho, for plaintiffs.
Allan G. Shepard, Atty. Gen., of Idaho, Keith Schofield, Asst. Atty. Gen., Boise, Idaho, for defendants Allan G. Shepard, Atty. Gen., Arnold Williams, Secretary of State, Joe Williams, State Auditor, Marjorie Moon, State Treasurer.
Martin V. Huff, Asst. Prosecuting Atty., of Ada County, Boise, Idaho, for County Commissioners & Auditor of Ada County.
Hugh Maguire, Pros. Atty., Bannock County, Pocatello, Idaho, for the County Commissioners and Auditor of Bannock County.
Elam, Burke, Jeppesen & Evans, Blaine F. Evans, Boise, Idaho, for Governor Robert E. Smylie.
Before KOELSCH, Circuit Judge, and MATHES and FRED M. TAYLOR, District Judges.
Opinion
PER CURIAM:
Plaintiff Hearne, a resident of Pocatello and a qualified voter in Bannock County, Idaho, and plaintiff Whitman, a resident of Boise and a qualified voter in Ada County, Idaho, commenced this action on November 1, 1962, seeking a declaratory judgment and equitable relief against the Governor, the Attorney General, and various other State and county officials of the State of Idaho. In keeping with the mandate of 28 U.S.C. § 2281, a three-judge court was convened. Thereafter, issues were joined and litigated. The case is now before us for decision following a trial upon the merits.
The declaratory relief which plaintiffs ask embraces a determination and declaration that certain of the provisions *648 of the Idaho Constitution and statutes, providing for the apportionment and manner of election of State legislators, contravene the Fourteenth Amendment to the United States Constitution, by operating to deny to plaintiffs, and others similarly situated, due process of law and the equal protection of the laws. (See: Idaho Const. Art. III, §§ 2, 4, 5; and Idaho Code § 67-203, as amended, and its predecessors.)
Corollary to this adjudication, the Court is asked to declare the present Idaho Legislature to be illegally constituted and illegitimate, and to enjoin all further election of members of the Legislature under the present system.
Plaintiffs invoke Federal jurisdiction upon the following grounds:
It has been held, moreover, that plaintiffs qua individuals have standing to sue— to bring this action in this Court. (Baker v. Carr,supra, 369 U.S. at 204-208, 208, 82 S.Ct. at 703-705, 7 L.Ed.2d 663.) As Mr. Justice Brennan declared for the majority of the Court in Baker: ‘It would not be necessary to decide whether * * * (plaintiffs') allegations of impairment of their votes by the * * * (existing) apportionment will, ultimately, entitle them to any relief, in order to hold that they have standing to seek it.’ (369 U.S. aT 208, 82 S.ct. at 705, 7 L.ed.2d 663.)
Bound by precedent to consider the case at bar as one tendering a justiciable controversy within the subject-matter jurisdiction of this Court and one presented by plaintiffs who have standing to sue, we look once more to Baker v. Carr for additional guidance, but find that the Court there did not decide what, if any, judicial relief should or could be granted upon the claims there asserted. (See 369 U.S. at 195-198, 237, 241, 265-266, 82 S.Ct. at 698-700, 720-721, 722-723, 736-737, 7 L.Ed.2d 663.)
Reaching the merits of the case at bar, as Baker v. Carr requires this Court to do, we confront first plaintiffs' prayer for a declaratory judgment. For more than half a century, Article III of the Idaho Constitution has provided, inter alia:
‘§ 2. Membership of house and senate.— The senate shall consist of one (1) member from each county. The legislature may fix the number of members of the house of representatives at not more than three (3) times as many representatives as there are senators. The senators and representatives shall be chosen by the electors of the respective counties or districts into which the state may, from time to time, be divided by law.
‘§ 4. Apportionment of legislature.— The members of the first legislature shall be apportioned to the several legislative districts of the state in proportion to the number of votes polled at the last general election for delegate to congress, and thereafter to be apportioned as may be provided by law: provided, each county shall be entitled to one representative.
‘§ 5. Senatorial and representative districts.— A senatorial or representative district, when more than one county shall constitute the same, shall be composed of contiguous counties, and no county shall be divided in creating such districts.’
Plaintiffs assert that the quoted sections of Idaho's Constitution and § 67-203 of the Idaho Code ‘as applied to the present facts of the State of Idaho and the 1960 census, establishes an arbitrary and capricious apportionment of representatives in the Senate and House without reference to any logical or reasonable formula whatever, resulting in gross under representation in both houses of the larger urban areas and gross over representation in both houses of the sparsely populated areas', with the result, say plaintiffs, that the challenged provisions of the Idaho Constitution and statutes operate to deny them due process of law and the equal protection of the laws, in defiance of the Fourteenth Amendment to the Federal Constitution.
We have considered the briefs of counsel, as well as such ‘evidence’ as was adduced upon the ‘trial’ of this cause, and have concluded that the only proper course is for this Court to exercise its *650 discretion against making any declaratory judgment. Several reasons impel us to this conclusion.
First, we lay aside plaintiffs' point that Idaho's system of legislative apportionment violates the ‘due process' clause of the Fourteenth Amendment. The argument in support of this contention completely escapes us and, in our opinion, does not merit discussion.
‘The rules by which this contention (violation of equal protection) must be tested, as is shown by repeated decisions of this court, are these: 1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify * * * but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.’ (220 U.S. at 78-79, 31 S.Ct. at 340, 55 L.Ed. 369; see also, Morey v. Doud, 354 U.S. 457, 463-466, 77 S.Ct. 1344, 1 L.Ed.2d 1485 (1957).)
Facing the myriad geographic, demographic, economic, social and political *651 forces that combine to make Idaho the great State it is, we must confess lack of both omnicompetence and prescience, which it appears to us would be necessary, to make a judicial appraisal and declaration that the State's time-old method of apportionment is irrational— beyond the bounds of reasonableness— when measured against what we understand to be the content of the mandate of the ‘equal protection’ clause of the Fourteenth Amendment.
Some of the innumerable imponderables in any scheme of legislative apportionment, if not based upon a mere mathematical formula of ‘one man— one vote’, were catalogued by Mr. Justice Frankfurter upon dissenting in Baker v. Carr, supra, as follows:
‘Apportionment, by its character, is a subject of extraordinary complexity, involving— even after the fundamental theoretical issues concerning what is to be represented in a representative legislature have been fought out or compromised— considerations of geography, demography, electoral convenience, economic and social cohesions or divergencies among particular local groups, communications, the practical effects of political institutions like the lobby and the city machine, ancient traditions and ties of settled usage, respect for proven incumbents of long experience and senior status, mathematical mechanics, censuses compiling relevant data, and a host of others.’ (369 U.S. at 323, 82 S.Ct. at 767, 7 L.Ed.2d 663).
Neither are we able to declare this a case of ‘invidious discrimination’; for it would assuredly be nothing more or less than sheer judicial guesswork to say what is invalid without being able at the same time to declare to what extent it is invalid— i.e., what would be a valid system of legislative reapportionment for Idaho.
If the equal protection clause does require the State to adopt a system of legislative apportionment based upon the ‘one man— one vote’ formula (cf.: Gray v. Sanders, supra, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821;MacDougall v. Green, 335 U.S. 281, 69 S.Ct. 1, 93 L.Ed. 3 (1948)), requires in other words the nearest practicable relationship between population and legislative representation— then the standard is a purely mathematical one; and it seems unnecessary to observe that there is seldom rational excuse for departing more than de minimis from any standard of mathematical exactness.
If, per contra, the relationship between legislative representation and population involves other than a mathematical standard, then we are without precedent or wisdom to declare how inexact it can constitutionally be.
Since the commencement of this action, the Idaho Legislature in 1963 reapportioned itself on the basis of the 1960 Census. This reapportionment followed a decision of the Idaho Supreme Court in a State-court reapportionment suit. (See Caesar v. Williams, 84 Idaho 254, 371 P.2d 241 (1962).)
In Caesar v. Williams, supra, plaintiff asked the Idaho court, in light of the 1960 Federal Census, to declare that the Idaho apportionment statute (Idaho Code § 67-203), then last amended in 1951, violated the ‘equal protection’ clause of the Idaho Constitution, which provides:
‘Political power inherent in the people.— All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform or abolish the same whenever they may deem it necessary; and no special privileges or immunities shall ever be granted that may not be altered, revoked, or repealed by the legislature.’ (Idaho Constitution, Art. I, § 2).
The Idaho Supreme Court referred decision on the validity under Idaho's Constitution of her then effective legislative apportionment statute, saying:
‘Until such time as the legislature has had ample opportunity to fully examine the impact of the 1960 Census on the apportionment of representatives throughout this State, in the light of Idaho Const. Art. III, §§ 2, 4 and 5, we cannot say that the 1951 Act is unconstitutional as having failed to grant representative rights of the citizenry of this State afforded by the Constitution.’ (371 P.2d at 249.)
We infer that the recent 1963 apportionment statute, under attack at bar (Idaho Code § 67-203, as amended by 1963 Idaho Sess. Laws, ch. 15 at 149), was enacted in response to the above-quoted suggestion of Idaho's Supreme Court. And, interestingly enough, it was conceded by counsel at the bar upon oral argument here that, since the passage of the 1963 statute, no Idaho citizen has as yet seen fit to return to the Idaho Supreme Court to seek a determination as to the constitutionality of the new legislative apportionment statute under Idaho's Constitution.
As the Court explained in Atlas Life Ins. Co. v. W.I. Southern, Inc., supra:
‘As the Court explained in Atlas Life Ins. Co. v. W. I. Southern, Inc., supra:
The ‘jurisdiction’ thus conferred on the federal courts to entertain suits in equity is an authority to administer in equity suits the principles of the system of judicial remedies which had been devised and was being administered by the English Court of Chancery at the time of the separation of the two countries.' (306 U.S. at 568, 59 S.Ct. at 659-660, 83 L.Ed. 987.)
It seems no overstatement to say that in 1789, the High Court of Chancery would have been greatly shocked at the suggestion that equity might afford injunctive relief under the facts at bar (See: Giles v. Harris, 189 U.S. 475, 486, 23 S.Ct. 639, 47 L.Ed. 909 (1903); In re Sawyer, 124 U.S. 200, 221, 8 S.Ct. 482, 31 L.Ed. 402 (1888); Georgia v. Stanton, 6 Wall. 50, 73 U.S. 50, 18 L.Ed. 721 (1867); cf.: Attorney General v. Earl of Clarendon, 17 Ves.Jr. 491, 498, 34 Eng.Rep. 190, 193 (Ch. 1810); Nabob of the Carnatic v. East India Company, 1 Ves.Jr. 371, 393, 30 Eng.Rep. 391, 402 (Ch. 1791); Penn v. Lord Baltimore, 1 Ves. 444, 446-447, 27 Eng.Rep. 1132, 1133 (Ch. 1750); and see Pound, Cases on Equitable Protection of Personalty and of social and Political Relations, ch. IV c, 31-74 (1915), reprinted in Chafee & Pound, Cases on Equitable Relief Against Torts (1933).)
Plaintiffs ask us to prohibit by injunction the holding of any further elections for members of the Idaho Legislature until a system of legislative apportionment is adopted which will assure plaintiffs ‘equal protection of the laws'— i.e., what they conceive to be their proportionate share of political influence.
We were admonished long ago that: ‘There is no power, the exercise of which is more delicate, which requires greater caution, deliberation, and sound discretion, or more dangerous in a doubtful case, than the issue of an injunction.’ (Truly v. Wanzer, 5 How. 141, 142, 46 U.S. 140, 142, 12 L.Ed. 88 (1847).)
Centuries old is the rule that: ‘A court of equity ought to do justice completely and not by halves.’ (Camp v. Boyd, 229 U.S. 530, 551, 33 S.Ct. 785, 793, 57 L.Ed. 1317 (1913).) As was observed in treating with plaintiffs' prayer for a declaratory judgment, this Court lacks the wisdom and perspicacity to adjudge either than Idaho's present legislative apportionment plan is beyond the bounds of reasonableness, or even what would be a more rational plan, all factors considered; and more especially so in view of the declaration in MacDougall v. Green, 335 U.S. 281, 69 S.Ct. 1, 93 L.Ed. 3 (1948), that:
‘Where a federal court of equity is asked to interfere with the enforcement of state laws, it should do so only ‘to prevent irreparable injury which is clear and imminent *655 * * *.‘‘ (327 U.S. at 593, 66 S.Ct. at 766, 90 L.Ed. 873.)
There is nothing in the record here which even tends to persuade us that any claimed injury to plaintiffs is ‘irreparable’ or ‘clear’ or ‘imminent’.
To borrow from Mr. Justice Rutledge's concurring opinion in MacDougall v. Green, supra:
‘Even if we assume that * * * (plaintiffs') constitutional rights have been violated, the questions arise whether, in those circumstances, the equity arm of the federal courts can now be extended to give effective relief; and whether the relief, if given, might not do more harm than good, might not indeed either disrupt the * * * (next Idaho) election altogether or disenfranchise more persons than have been disenfranchised by the application of the questioned * * * (Idaho) procedures.’ (335 U.S. at 285-286, 69 S.Ct. at 3, 93 L.Ed. 3.)
In the same case, Mr. Justice Douglas declared upon dissenting that:
‘The equity court, moreover, must always be alert in the exercise of its discretion to make sure that its decree will not be a futile and ineffective thing.’ (Id. 335 U.S. at 290, 69 S.Ct. at 5, 93 L.Ed. 3.)
Almost since ‘time knoweth not to the contrary’, it has been a settled maxim of equity jurisprudence that a court of equity will not issue an unenforceable decree of injunction, mandatory or prohibitory. As Mr. Justice Holmes put it with characteristic conciseness three generations ago: ‘In determining whether a court of equity can take jurisdiction, one of the first questions is what it can do to enforce any order that it may make.’ (Giles v. Harris, supra, 189 U.S. at 487, 23 S.Ct. at 642, 47 L.Ed. 909; see also Mills v. Green, 159 U.S. 651, 16 S.Ct. 132, 40 L.Ed. 293 (1895).)
In the view of one observer, ‘it taxes the imagination to conjure a vision of the marshals breathing down the necks of the members of the (Idaho Legislature) * * * while they parrot the requisite number of ‘ayes', or the prosecution for contempt of legislators who voted ‘nay’ on the district court's apportionment bill'. Lucas, Of Ducks and Drakes: Judicial Relief in Re-apportionment Cases, 38 Notre Dame Law. 401, 409 (1963).
This calls to mind the fact that the members of the Idaho Legislature have not even been made parties to this action. Plaintiffs nonetheless urge that, if this Court will only grant the decree they seek, our orders will not require enforcement; that they will enforce themselves, so to speak. Plaintiffs' hope of course is that, if this Court will only declare the present system of legislative apportionment void under the equal protection clause of the Fourteenth Amendment, then the present Idaho Legislature— at that time ex necessitate only a de facto body by virtue of our declaration— would presumably ‘do something about it’, and at least remove in part what plaintiffs say are the intolerable defects of the present. Thus plaintiffs in effect argue that this Court should attempt to ‘bluff’ or ‘spur’ the Idaho Legislature into action; that we should issue a ‘left-handed’ injunction whereby the Court would attempt to accomplish indirectly what it could not possibly bring about directly. (See Chafee, Congressional Reapportionment, 42 Harv.L.Rev. 1015, 1019 (1929).)
Manifestly, this Court cannot control the State-law effects of any decree it might enter. So we are powerless, ourselves, to establish a particular legislature as the proper governing body of the State of Idaho. But that is not all. As stated earlier, were we to grant the relief plaintiffs ask and thereby deprive Idaho of a de jure Legislature, surely we would at the same time probably deprive the people of Idaho, at least temporarily, of ‘a Republican Form of Government’ guaranteed to them by Article IV, § 4, of the Federal Constitution. Thus, while attempting to vindicate what plaintiffs conceive to be their rights under *656 the ‘equal protection’ clause of the Fourteenth Amendment, this Court might work a violation by the Federal Government of the ‘guarantee clause’ of Article IV, § 4.
We should not willingly so stultify ourselves, or so prostitute the power and process of this Court. Beyond the age-old policy against advisory opinions, and a fortiori advisory judgments (see Muskrat v. United States, 219 U.S. 346, 361-362, 31 S.Ct. 250, 55 L.Ed. 246 (1911); cf. Letter From Chief Justice Jay to Secretary of State Jefferson, August 8, 1793, in Hart & Wechsler, The Federal Courts and The Federal System 77 (1953)), we would echo the warning of Mr. Justice Frankfurter that ‘there is nothing judicially more unseemly nor more self-defeating than for * * * (a) Court to make in terrorem pronouncements, to indulge in merely empty rhetoric, sounding a word of promise to the ear, sure to be disappointing to the hope’. (Baker v. Carr, supra, 369 U.S. at 270, 82 S.Ct. at 739, 7 L.Ed.2d 663.)
The court declines to meet the basic issue in this case because of a professed lack of ability to comprehend and appraise the many and complex factors that may or do enter into the problem of the equitable representation of voters in the Legislature of the State of Idaho. Additionally the court does not entertain the petition because no method for correcting the asserted injustice is apparent.
In Baker v. Carr, the Supreme Court went far toward answering the position of the majority: ‘Judicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if on the particular facts they must, that a discrimination reflects no policy, but simply arbitrary and capricious action.’ 369 U.S. at 226, 82 S.Ct. at 715, 7 L.Ed.2d 663.