
    Nolan v. Rhodes, Governor, et al. Sive et al. v. Ellis et al. Blosser v. Rhodes et al.
    (Civ. A. Nos. 6082, 6491, 7585
    Decided October 27, 1965.)
    United States District Court, Southern District, Eastern Division.
    
      Before Weick, Circuit Judge, and WeiNmaN and Peck, District Judges.
   These three consolidated cases challenge the constitutionality of the apportionment of the General Assembly of the State of Ohio. Pursuant to mandate of the Supreme Court of the United States (378 U. S. 556 [1964]) this court by order dated October 15, 1964, and entered in Nolan v. Rhodes and Sive v. Ellis (Nos. 6082 and 6491) declared Article XI, Section 2 of the Ohio Constitution void as being in violation of the Fourteenth Amendment to the Constitution of the United States, and ordered the Ohio General Assembly to effect an apportionment system for its membership in compliance with said constitutional provision. The effective date of said order was postponed until the further order of the court to provide an opportunity for the General Assembly of Ohio to take action to effect such reapportionment. The General Assembly then met in special session on November 10,1964, and on December 9,1964, adopted a joint resolution providing for an apportionment plan of the House of Representatives only and the submission thereof to the voters at a special election in May 1965. Such special election was held but the proposed amendment was defeated by the vote of the electors.

Apportionment of the House was again considered by the 106th General Assembly at its regular session in 1965, but the three-fifths vote of both Houses required to submit a constitutional amendment for a vote of the people could not be obtained. The General Assembly having adjourned sine die without having enacted another apportionment amendment for submission to the electors, the court entered an order requesting each party to the actions to file on or before October 15, 1965, a suggested plan for reapportionment of the Ohio House of Representatives and a suggested plan for the reapportionment of the Ohio Senate, and further announcing that any person or persons could within said period of time file a suggested plan upon leave of court.

In Blosser v. Rhodes (No. 7585), by interlocutory order entered October 18, 1965, the court determined that the Senate of the Ohio General Assembly was malapportioned for the reasons that the Senate has not been apportioned substantially on a population basis; that substantial equality among the districts has not been maintained; that the provisions of the Ohio Constitution governing apportionment of the Senate were contained in the Constitution of 1851 and have not since been amended except as to districts having fractions; that the Constitution of 1851 does not properly allow for the shifts in population which have occurred since its adoption; that the provision (Ohio Constitution, Article XI, Section 6a) providing for a varying number of Senators from the same district for different legislative sessions during a decennial period results in underrepresentation for some sessions and overrepresentation for others, but never for reasonably exact representation; that the provisions of the Ohio Constitution which require said malapportionment of the Senate as above related, are in violation of the Fourteenth Amendment to the Constitution of the United States and are therefore null and void. Reynolds v. Sims (1964), 377 U. S. 533, and other cases decided on the same day.

In the order of September 16, 1965, each party to actions Nos. 6082 and 6491 was requested to file on or before October 15, 1965, a suggested plan for the reapportionment of the Ohio House of Representatives and a suggested plan for the reapportionment of the Ohio Senate, and the order further provided that any interested person or persons might within the same period of time file such suggested plans by leave. Pursuant thereto such plans have been filed by the parties as well as by many other interested persons and organizations. Among the plans filed by the parties is one which was filed by the Governor, Auditor of State and Secretary of State of Ohio. Those state officials constitute the Apportionment Board created by Article XI, Section 11 of the Ohio Constitution and simultaneously with such filing, said Board caused the same plan to be published in newspapers of general circulation in the state of Ohio as required by said Section of the Constitution.

In essence, that plan as filed and published divides the state of Ohio into 99 districts and provides for the election to the House of Representatives of one member from each House District so formed, and then provides for 33 Senate Districts, from each of which one senator is to be elected, and each of which is comprised of three House Districts. In determining the “ideal” population for a House District the population of the state was divided by one hundred (Ohio Constitution, Article XI, Section 1). Under the plan, no House District has less than 85% of such population, nor more than 115% thereof. No county was divided which fell within the 85 to 115% range, and in establishing the districts pre-existing political boundary lines (i. e., county lines, township, municipal, ward or precinct boundaries, etc.) were followed. The population figures used were of the last census, and since 1960 population figures were used 1960 boundaries were also followed, since there is no more recent official determination of such population shifts as may have occurred.

As above stated, each Senate District is composed of three contiguous House Districts. In determining the “ideal” population of such district, the 1960 population of the state was divided by 35 (Ohio Constitution, Article XI, Section 6). While the populations of the Senate Districts do not in every instance fall within the range of 85-115% of the quotient arrived at by dividing the population by 35, every Senate District is well within that range if a divisor of 33 (the number of Senators) is used. A variance within that range is here held not to be viola-tive of constitutional standards.

It is the position of said state officials, as urged in the supporting brief accompanying the plan filed in this court by the Attorney General of Ohio, that they acted in accordance with the authority of said Section 11, thereby performing the mandatory duty imposed upon the board to reapportion the Ohio General Assembly.

It is axiomatic that any action taken by a properly constituted governmental agency is entitled to a presumption of validity, and accordingly the action of the Apportionment Board is here to be presumed to be legal, valid and constitutionally taken. See, e. g., Goldberg v. Truck Drivers Local Union No. 299 (6th Cir. 1961), 293 F. 2d 806. In this regard, mention is made of the fact that such constitutionality has been challenged in an action instituted in the Court of Appeals for Franklin County, Ohio, October 20, 1965, in action No. 8228 on the docket of that court. Until or unless the presumption of validity hereinabove referred to is dissipated by determination by the Ohio courts, the presumption is deemed binding upon this court, the question whether the Board acted in accordance with authority conferred hy the Constitution of Ohio being peculiarly one of Ohio law and appropriate for resolution in the courts of that state.

We regard the apportionment of the General Assembly of Ohio as being a legislative rather than a judicial function. The Federal Court should intervene only to protect rights guaranteed by the Constitution of the United States. When a state apportionment has been declared unconstitutional the Federal Court should devise and put into effect a reapportionment plan only as a last resort when the Legislature fails or is unable to act. In devising a plan the court acts to prevent a breakdown or disruption of essential state government services.

If the presumption of validity prevails and finds support in the Ohio courts, it must necessarily follow that by its action the board has established a plan for the reapportionment of the General Assembly and the only determination to be made by this court is whether or not such plan is in violation of the Constitution of the United States or any provisions thereof. A study of such plan convinces us that the apportionment made by the board conforms as nearly as practicable according to population and follows the rules enunciated by the Supreme Court in Reynolds. This court therefore finds that said plan is not violative of the Constitution of the United States.

Elections could not be held under the present apportionment since we have held the General Assembly to be malappor-tioned. Therefore, consideration must be given to an alternative, namely that of a determination by the Ohio courts of invalidity under the state Constitution of the action of the Apportionment Board in its creation of the plan. Such an alternative presents the possibility of chaos and of a breakdown in the entire election machinery of the state in providing for the legislature to be elected in 1966. In order to prevent such an untoward result, and to insure continuity and the stabilization of such elections of the General Assembly said plan of the Apportionment Board will by the order which hereafter follows be approved, adopted and put into effect now on a temporary basis.

It seems proper to point out that if one of the other plans (or any combination of them, or a plan of the Court’s original creation) were to be approved in the event of a declaration of invalidity of the board plan by the Ohio courts, an entirely untenable situation would be created. It is required by the Ohio Constitution (Article II, Section 3) that “senators and. representatives shall have resided in their respective counties, or districts, one year next preceding their election * * The election in 1966 will by law be held November 8th, and any present delay in the adoption of a plan would make it constitutionally impossible for some incumbent members of the General Assembly or aspirants thereto to stand for election without creating partisan or otherwise potentially embarrassing situations.

Having thus summarily refrained from considering the other carefully prepared suggested plans which have been submitted, a word concerning them should be said. Without exception, such plans indicate the thought and effort with which they have been prepared and appreciation is expressed to the public-minded citizens, legislators and organizations who made such submissions. As has been stated, in the event the Apportionment Board is found by the Ohio courts not to have acted within the proscription of the Ohio Constitution in the preparation of its plan, that plan is hereinafter only adopted as temporary. It is contemplated that in such circumstance during the period of such temporary operation further consideration will be given to the additional plans received. Several of such plans have been accompanied by motions to intervene, and while all such pending motions will be denied, all accompaning plans are received and deemed properly filed, and will be before the court under the circumstances just set forth.

The plan filed herein by the defendants, James A. Rhodes, Governor of Ohio, Ted W. Brown, Secretary of State of Ohio, and Roger Cloud, Auditor of State of Ohio (and which said plan was promulgated by said officials in their capacity as Apportionment Board under the provisions of Article XI, Section 11 of the Ohio Constitution). The facts of. the three consolidated cases herein considered are found to be as hereinabove set forth and as stated in said attached plan, and this memorandum is filed as the court’s findings of fact and conclusions of law in accordance with the provisions of Rule 52, Federal Rules of Civil Procedure.

In considering the motion of Frank W. King for rehearing, it should be pointed out that he was afforded the opportunity to appear by his counsel as amicus curiae and participate in the trial on the merits of this case. He was personally present and his counsel examined the stipulation agreed upon by the parties and was unable to point out any particular in which it was incorrect or inadequate. He was given the opportunity to offer evidence but he offered none. His counsel was permitted to make the principal argument in the case supporting the constitutionality of the apportionment of the Ohio Senate. In short, he was accorded all the rights of a party in the hearing.

It is Ordered:

In accordance with the foregoing,

1. That all pending motions should be and they are hereby denied, including the motions of the plaintiffs in actions Nos. 6082 and 6491;

2. That the interlocutory order heretofore entered holding the Senate of the Ohio General Assembly to be malapportioned, is hereby made final;

3. That the plan adopted by the Apportionment Board acting under the provisions of Article XI, Section 11, Ohio Constitution, is not in violation of the Constitution of the United States or any provisions thereof;

4. That said plan is hereby adopted and put into effect on the date of the entry hereof as a temporary plan and ordered by this court to be followed for the election of the General Assembly of Ohio in the year 1966;

5. That jurisdiction of these cases is retained pending determination of the constitutionality of the action of the said Apportionment Board under the Constitution of the State of Ohio by the Ohio courts, and thereafter: To consider any application for an extension of the temporary period; to enforce this order; and to consider any other appropriate matter which may be brought to the attention of the court. 
      
       Actually, that section merely imposes the responsibility for action on the officials named and does not use the phrase “Apportionment Board.” However, for convenience we herein follow the common practice of using the designation “Apportionment Board.”
     