This is a submission upon an agreed statement of facts.
For present purposes we can assume the invalidity of the composition and apportionment of the State Legislature, in whole or in part. So assuming, we nevertheless agree with the defendant that we should not interfere with the 1964 elections. There is ample precedent for our refusal to so interfere.
In Sincock v. Terry, 210 F.Supp. 396 (Oct. 16, 1962), a three-judge federal court in Delaware considered the situation there presented with respect to the November 1962 election. The action had been commenced on June 5, 1962, and the court had stayed the proceedings until August 7, 1962 to enable the legislature to propose a constitutional amendment. 207 F.Supp. 205. In the second opinion reported in 210 F.Supp. 396 the court noted that a constitutional amendment had been proposed and denied a preliminary injunction, thereby permitting the holding of the November 1962 election. As a result, it was the constitutional amendment adopted in 1963 which finally came before the court. It was held invalid, 215 F.Supp. 169, aff'd sub nom. Roman v. Sincock, 377 U.S. 695 (June
In Lisco v. McNichols, 208 F.Supp. 471 (Aug. 10, 1962), a three-judge federal court found that the record was inadequate for devising of a court plan of reapportionment, and that "in view of the magnitude of the task, the time is wholly inadequate." Final adjudication was postponed until holding of a further hearing. The District Court concluded that the case was not one for temporary injunctive relief "and that there should be no impediment to the orderly conduct of the election or interference with the electorate in the free exercise of their opinions on the initiated measures [for constitutional amendments effecting reapportionment] at the coming election * * *." The cause was continued until after the November 1962 election. After an extended trial and a further opinion, 219 F.Supp. 922, the case came before the Supreme Court sub nom. Lucas v. Colorado General Assembly, 377 U.S. 713 (June 15, 1964). The Supreme Court approved the action below as to the November 1962 election, saying: "Because of the imminence of the November 1962 election, and the fact that two initiated proposals relating to legislative
Previously the Court had stated: "* * * And we conclude that the fact that a practicably available political remedy, such as initiative and referendum, exists under state law provides justification only for a court of equity to stay its hand temporarily while recourse to such a remedial device is attempted or while proposed initiated measures relating to legislative apportionment are pending and will be submitted to the State's voters at the next election."
We note that the Supreme Court has said that "once a State's legislative apportionment scheme has been found to be unconstitutional, it would be the unusual case in which a court would be justified in not taking appropriate action to insure that no further elections are conducted under the invalid plan." Reynolds v. Sims, 377 U.S. 533 (June 15, 1964). But the Court continued in that case:
In the light of the decisions handed down by the United States Supreme Court on June 15, 1964, we take cognizance of the indisputable invalidity of Article III, section 2 of the State Constitution, relating to the composition and apportionment of the State Senate. The problems thus raised will be considered first from the standpoint of permanent reapportionment and then from the standpoint of a temporary reapportionment plan.
At least in the initial stages of the problem presented by the invalidity of this provision, the question whether such invalidity can be cured by act of the legislature itself, or requires an amendment of the State Constitution, is one of local law, not federal constitutional right. We note that the Supreme Court has said that "the delay inherent in following the state constitutional prescription for approval of constitutional amendments * * * cannot be allowed to result in an unpermissible deprivation of [the] right to an adequate voice in the election of legislators * * *." Roman v. Sincock, supra. But that was said in a case where, at the time of rendition of the Supreme Court opinion, the case had been pending for two years during which a constitutional amendment had been achieved but had proved invalid. We see no indication that the matter
Viewing this as a local question we note that Article XV, section 2, paragraph 6 of the State Constitution provides that any constitutional amendment shall be approved by a majority of the votes tallied upon the question, constituting at least 35% of the voters, and specifically provides that "no constitutional amendment altering * * * the representation from any senatorial district in the senate shall become effective unless it shall also be approved by a majority of the votes tallied upon the question in each of a majority of the counties." The agreed statement sets out that the parties are in agreement that this provision "contains a built-in impediment which has the necessary effect of perpetuating inequality in senatorial representation, and therefore is violative of the equal protection clause of the 14th Amendment * * *." Since the parties are in agreement, no justiciable controversy is presented as to this matter, and perhaps that would be true at this stage in any event.
If any step is to be taken toward a constitutional amendment or amendments it should be done before the 1964 elections, in order to avoid delay in obtaining a vote of the people as provided by Article XV. However, the
Plaintiffs pray for a judgment declaring that the composition and apportionment of both the Senate and House of Representatives are violative of the equal protection clause. As to the House of Representatives there is involved a question, as hereinafter noted, as to the sufficiency of the agreed statement to present the point sought to be adjudicated. In any event we have no occasion to render a declaratory judgment in this case as to the validity or invalidity of the composition and apportionment of the legislature, apart from the plaintiffs' rights with respect to a future election or elections. Cf., Harris v. Shanahan, 192 Kan. 183, 387 P.2d 771, 795 et seq.; Baker v. Carr, 206 F.Supp. 341, 350 (June 22, 1962). We shall have more to say on this at a later point in this opinion.
The above-cited opinion in Baker v. Carr was the first one
Plaintiffs in effect urge that, even if a constitutional
In the first place, as we have said, any judgment or decree of this court would be directed only to a future election or elections, and would not be in the form of a bare adjudication of present invalidity. Plaintiffs themselves urge that "a legislature though elected under an invalid apportionment scheme, is nonetheless, a legislature empowered to act." We agree.
In the second place, in order to interfere with the 1964 elections on the theory that a temporary reapportionment plan should be put into effect for those elections, we would have to be convinced that plaintiffs' rights under the federal constitution require this mutation of the State Constitution without even awaiting a reasonable opportunity for the State Constitution to operate as intended. We lay that question aside because there are other considerations which make it unnecessary to decide it, at least at this time.
A serious question is presented concerning the rights of those senators who were elected in 1962 for a term ending in 1966. As hereinafter noted, one of these senators has sought to intervene. He has not received a hearing as to his rights. Moreover, we have found no indication in the case law that termination of the terms of incumbent senators could be effected as part of a temporary reapportionment plan.
Reallocation of the open seats, that is, those which normally would be filled at the 1964 elections, would involve the question whether population is the only permissible basis of apportionment, as asserted by plaintiffs. That knotty problem is directly involved in plaintiffs' attack on the apportionment of the House of Representatives.
A submission on an agreed statement of facts precludes the taking of evidence.
The agreed statement sets out 1960 population figures from the Federal Census, and 1958 and 1962 Registered Voter figures. These show that the ratio of registered voters to population varies greatly from district to district in some instances, but of course 1958 and 1962 registered voters and 1960 population are not comparable figures. Appended to plaintiffs' brief is a table showing 1960 registered voters and 1960 population but this is not part of the agreed statement and cannot be used unless the parties are in agreement on it. In any event, the agreed statement affords no means of analyzing the composition
We are troubled by other aspects of the case, as well. Except for the Lieutenant Governor, the parties are all from the Fifth Senatorial District. In so saying we have excluded from consideration three persons named as plaintiffs who, being residents, taxpayers and voters in the counties of Hawaii, Kauai and Maui, have no justiciable interest as plaintiffs.
Presently, the Lieutenant Governor is the sole party contending with the Fifth District voters. The Lieutenant Governor appears by private counsel, not by the Attorney General. The latter has issued an opinion contrary to the views presented here by the Lieutenant Governor, and has been permitted to appear as an amicus curiae. His argument supports plaintiffs' position.
In this situation we are not satisfied that there is a sufficiently broad base of representation to justify the court in proceeding to adopt a temporary reapportionment plan even if we have the power to do so. We see no reasonable possibility that the representation could be broadened and all the questions involved could be resolved by a date sufficiently in advance of the September 3, 1964 closing date for filing nomination papers. We have concluded that on this record and considering the exigencies of time, we are not in a position to interfere with or control the 1964 elections, regardless of our power to do so.
As to the validity of the apportionment of the House of Representatives, the first point for consideration is
We note plaintiffs' argument that even if the House of Representatives is not malapportioned, the invalidity of the apportionment of the Senate invalidates that of the House of Representatives as well. This is a point to be considered in connection with any reapportionment plan hereafter adopted,
Accordingly all prayers for judicial action interfering with the 1964 elections are denied and decision on other matters, including the question whether this submission is a suitable vehicle for adjudication thereof, is held in abeyance in order to afford the parties an opportunity to file an amended submission if they are of the opinion that the problems presented by the instant submission, to which we have called attention, can be satisfactorily resolved.
It has been suggested that these parties have an interest as taxpayers in preventing an election on a malapportioned basis as an unnecessary expenditure of public funds, and in preventing other waste of public funds. However, that contention does not go to the heart of the controversy or show a justiciable interest when all the circumstances are considered. Cf., Doremus v. Board of Education, 342 U.S. 429.