
    James D. NOLAN, Plaintiff, v. James A. RHODES, Governor of Ohio, et al., Defendants. Leonard M. SIVE et al., Plaintiffs, v. Harry ELLIS et al., Defendants. Clarence BLOSSER, Plaintiff, v. James A. RHODES et al., Defendants.
    Civ. A. Nos. 6082, 6491, 7585.
    United States District Court S. D. Ohio, E. D.
    Oct. 27, 1965.
    Judgment Affirmed Feb. 21, 1966.
    See 86 S.Ct. 716, 15 L.Ed.2d 616.
    
      Kenneth G. Weinberg, Cleveland, Ohio, Stewart R. Jaffy, Columbus, Ohio, for plaintiff in No. 6082.
    Jerome Goldman, Cincinnati, Ohio, for plaintiffs in No. 6491; William T. Bahlman, Jr., Robert P. Goldman, Bruce I. Petrie, Charles H. Tobias, Jr., Harris K. Weston, Cincinnati, Ohio, of counsel.
    Harry P. Jeffrey, Dayton, Ohio, for plaintiff in No. 7585.
    William B. Saxbe, Atty. Gen., of Ohio, Columbus, Ohio, for defendants in Nos. 6082, 6491 and 7585.
    Hugh A. Sherer, Columbus, Ohio, William E. Knepper, Columbus, Ohio, special counsel for defendants in Nos. 6082 and 6491.
    George Schilling, Jr., Pros. Atty., Clinton County, Wilmington, Ohio, Angus B. Wilson, Pros. Atty., Brown County, Georgetown, Ohio, John O. Crouse, Pros. Atty., Highland County, Hillsboro, Ohio, Elmer Spencer, Pros. Atty., Adams County, West Union, Ohio, for defendants in No. 6491; Gerald A. Donahue, John J. Chester, Columbus, Ohio, special counsel.
    Before WEICK, Circuit Judge, and WEINMAN and PECK, District Judges.
   PER CURIAM.

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, 84 S.Ct. 1906, 12 L.Ed.2d 1034, 1964), this Court by order dated October 15th, 1964, and entered in Nolan v. Rhodes and Sive v. Ellis (Nos. 6082 and 6491), 218 F.Supp. 953 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 reason's 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 Cons., Art. XI, Sec. 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, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) 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 oi 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 Cons., Art. XI, Sec. 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 Cons., Art. XI, Sec. 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 violative 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, 293 F.2d 806 (6th Cir. 1961)). 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 20th, 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 by 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 malapportioned. 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 (Art. II, Sec. 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 accompanying 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) is attached hereto and made a part hereof. 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.

In accordance with the foregoing,

It is ordered:

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.

APPENDIX

Governor’s publication of the ratio of representation for the Ohio Senate and House of Representatives based upon the 1960 Decennial Census as ascertained and determined by the Governor, the Auditor of State and the Secretary of State in September, 1965, together with their apportionment of Senators and Representatives to districts and their determination of which senatorial districts shall elect Senators to take office for four-year terms starting January 1, 1967, and which for four-year terms starting January 1,1969.

I, James A. Rhodes, Governor, pursuant to Article II, Section 2 and Article XI, Section 11 of the Constitution of Ohio and further pursuant to Sections 107.09 and 107.13 of the Revised Code, hereby give public notice that the Governor, the Auditor of State and the Secretary of State, by actions taken September 8 and September 27, 1965, have unanimously ascertained and determined (1) that the apportionment of the Ohio House of Representatives and the Ohio Senate under which the 106th General Assembly was elected is unconstitutional in such vital respects under both the Ohio and United States Constitutions as to be a nullity; (2) that the ratio of representation for the Ohio House of Representatives according to the 1960 decennial census is one representative for each 97,064 people and that the ratio of representation for the Ohio Senate according to the same census is one Senator for each 277,326 people; (3) that each House District shall be entitled to elect one Representative in 1966,1968 and 1970, that even-numbered Senate Districts shall be entitled to elect one Senator for a four-year term in 1966 and 1970, and that odd-numbered Senate Districts shall be entitled to elect one Senator for a two-year term in 1966 and to a four-year term in 1968 (subject to the orders of the Court hereinafter mentioned); (4) that an apportionment for the remainder of the present decennium of the Ohio House of Representatives and of the Ohio Senate that is consistent with the orders of the United States District Court for the Southern District of Ohio, Western Division in Civil Actions No. 6082 (Nolan vs. Rhodes, Governor of Ohio, et al.), No. 6491 (Sive, et al. vs. Ellis, et al.), and No. 3201 (Blosser vs. Rhodes, Governor of Ohio, et al.) and not contrary to other relevant Federal Court decisions, is an apportionment in which ninety-nine House Districts and thirty-three Senate Districts are distributed over Ohio uniformly on a population basis, with each district electing one Representative or one Senator as the case may be; (5) that Senators to be elected from odd-numbered districts shall take office for four-year terms starting January 1, 1967, and that Senators to be elected from even-numbered districts shall take office for two-year terms on January 1, 1967, and thereafter for four-year terms starting January 1, 1969.

The Governor, the Auditor of State and the Secretary of State, accordingly, have apportioned the Ohio House of Representatives and the Ohio Senate for the remaining years of the current decennium as hereinafter set forth.

APPORTIONMENT OF THE OHIO HOUSE OF REPRESENTATIVES

By such of said ascertainments and determinations as pertain to representation in the House of Representatives, the following House Districts are constituted, from each of which one Representative shall be elected to take office January 1,1967, for a two-year term:

LARGE COUNTIES DIVIDED INTO INDIVIDUAL DISTRICTS

APPORTIONMENT OF THE OHIO SENATE

By such of the ascertainments and determinations mentioned at the beginning hereof as pertain to representation in the Ohio Senate, the following Senate Districts are constituted by combining groups of three contiguous House Districts, from each of which Senate Districts one Senator shall be elected to take office January 1, 1967, for the term shown in the table below:

DESIGNATION COMPRISING HOUSE DISTRICTS 1960 POPUTEEM RATION

Senate District 1: Nos. 1, 4, and 76 4 years 273,749

Senate District 2: Nos. 2, 5 and 6 2 years 304,308

Senate District 3: Nos. 7, 8 and 9 4 years 302,444

Senate District 4: Nos. 3, 39 and 40 2 years 302,557

Senate District 5: Nos. 85, 86 and 88 4 years 315,319

Senate District 6: Nos. 84, 87 and 10 2 years 306,403

Senate District 7: Nos. 65, 66 and 67 4 years 283,738

Senate District 8: Nos. 68, 71 and 73 2 years 290,857

Senate District 9: Nos. 69, 70 and 72 4 years 289,526

Senate District 10: Nos. 11, 12 and 20 2 years 302,350

Senate District 11: Nos. 77, 78 and 79 4 years 282,686

Senate District 12: Nos. 80, 13 and 15 2 years 294,216

Senate District 13: Nos. 14, 17 and 75 4 years 319,269

Senate District 14: Nos. 16, 18 and 19 2 years 304,576

Senate District 15: Nos. 59, 63 and 64 4 years 282,271

Senate District 16: Nos. 58, 61 and 62 2 years 306,925

Senate District 17: Nos. 60, 21 and 25 4 years 285,190

Senate District 18: Nos. 22, 26 and 27 2 years 283,683

Senate District 19: Nos. 23, 24 and 31 4 years 264,911

Senate District 20: Nos. 28, 29 and 30 2 years 320,152

Senate District 21: Nos. 41, 42 and 54 4 years 291,611

Senate District 22: Nos. 43, 44 and 45 2 years 274,810

Senate District 23: Nos. 46, 47 and 48 4 years 296.335

Senate District 24: Nos. 50, 51 and 57 2 years 310,130

Senate District 25: Nos. 49, 52 and 74 4 years 306,319

Senate District 26: Nos. 53, 55 and 56 2 years 277,671

Senate District 27: Nos. 93, 94 and 96 4 years 291,761

Senate District 28: Nos. 91, 95 and 97 2 years 291.031

Senate District 29: Nos. 89, 90 and 92 4 years 271,122

Senate District 30: Nos. 32, 33 and 34 2 years 290,333

Senate District 31: Nos. 35, 36 and 37 4 years 288,071

Senate District 32: Nos. 38, 98 and 99 2 years 301,593

Senate District 33: Nos. 81, 82 and 83 4 years 300,480.

TOTAL 9,706,397

This legal advertisement is one of four consecutive weekly publications being made in newspapers in Cleveland, Columbus and Cincinnati on October 15,16, 22, 23, 29,30 and November 5 and 6,1965.

Done at Columbus, Ohio this 15th day of October, 1965.

JAMES A. RHODES, Governor 
      
       Actually, that section merely imposes the responsibility for action on the officials named and does not use the phrase “Apportionment Board.” However, for eonvenience we herein follow the common practice, of using the designation “Apportionment Board.”
     
      
       See Appendix.
     