IN THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Twenty Citizens of the District of Columbia,
Plaintiffs,
versus
William Jefferson Clinton, et al,
Defendants
MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF PLAINTIFFS' APPLICATION
FOR A THREE-JUDGE DISTRICT COURT
Plaintiffs in this case apply for a three-judge district court, as provided by Section
2284(a) of Title 28 of the United States Code. Section 2284(a) provides, among other
things, that "[a] district court of three judges shall be convened when ... an action
is filed challenging the constitutionality of the apportionment of congressional
districts[.]"
Section 2284 is jurisdictional, McLucas v. DeChamplain, 421 U.S. 21, 28, 95 S.Ct. 1365,
1370, 43 L.Ed.2d 699, 707 (1975) [FOOTNOTE 1: McLucas concerned an application for the
three-judge district court under 28 U.S.C. 2282 (since repealed), which
"required three judges to hear injunctive suits attacking federal and state
legislation ... for repugnance to the Constitution of the United States." McLucas
applies to the instant case, however, since the only substantive difference between
Sections 2282 and 2284 is the scope of "legislation" which might, when
challenged, require a three-judge district court. Section 2282 covered cases in which any
act of Congress (or of a state) was challenged as unconstitutional. Section 2284 (as
invoked by the Plaintiffs here) requires three-judge courts when a constitutional
challenge is brought against acts which result in apportionments. Thus, Section 2284(a)
concerns a subset of the whole set which had been covered by Section 2282.], so the judge
to which the case is initially assigned, see Local Rule 401(a), must address the
application for a three-judge district court before addressing any other issue or merit of
the case. See also Armour v. State of Ohio, 925 F.2d 987, 989 (6th Cir. 1991) (en banc)
("[T]he 'shall' language of the statute ... make[s] the convening of such a court a
jurisdictional requirement once it becomes clear that there exists a nonfrivolous
constitutional challenge to the apportionment of a [congressional district]").
The District Judge to whom the case is initially assigned has "a limited
jurisdiction," leaving room for little discretion, to determine whether the applicant
has presented a case which is under the jurisdiction of a three-judge district court. See
28 U.S.C. 2284(b)(1) (the district judge to which the case is initially assigned
"shall" forward the application for a three-judge district court to the Chief
Judge of the Circuit Court for designation of the additional two judges who will comprise
the panel of three "unless [the initial judge] determines that three judges are not
required[.]" (emphasis added)).
A single United States district judge has no jurisdiction to proceed to the merits of [a]
claim if formation of [a three-judge district court] is required. When an application for
a statutory three-judge court is addressed to a district court, the court is limited to
the following determinations before it can request the Chief Judge of the Circuit to
convene the panel: (1) whether the complaint formally alleges a basis for equitable
relief; (2) whether the constitutional question presented is substantial; and (3) whether
the case presented otherwise comes within the requirements of the applicable three-judge
statute. Police Officers' Guild, Nat'l. Union of Police Officers v. Washington, 369
F.Supp. 543, 548-49 (D.D.C. 1973) (citations omitted) [FOOTNOTE 2: Police Officers' Guild,
like McLucas, concerned an application for a three-judge district court under 28 U.S.C.
2282. Police Officers' Guild is compelling authority in this case for the same
reasons that McLucas is compelling authority. See footnote 1, supra. In short, the
criteria listed in Police Officers' Guild are not necessarily limited to or dependent upon
Section 2282]; see also Adams v. Richardson, 871 F.Supp. 43, 45 (D.D.C. 1994). If each of
these three elements or considerations is answered in the affirmative, the case and all
its issues and questions are under the jurisdiction of a three-judge district court from
that point on. U.S. v. Georgia Public Service Comm'n, 371 U.S. 285, 287-88, 83 S.Ct. 397,
399, 9 L.Ed.2d 317 (1963); Sterling v. Constantin, 287 U.S. 378, 393-94, 53 S.Ct. 190,
193, 77 L.Ed. 375 (1932).
In assessing an application for a three-judge district court, the judge initially assigned
must consider the applicant's claims "on their face," from the allegations in
the Complaint and from arguments presented in support of the application for a three-judge
district court. White v. Regester, 412 U.S. 755, 760, 93 S.CT. 2332, 2336, 37 L.Ed.2d 314
(1973); Local Rule 202. Thus, all allegations and arguments presented in the Complaint and
in support of the application for a three-judge district court "must be deemed to be
true," [FOOTNOTE 3: Thus, treatment of an application for a three-judge District
Court is similar to treatment of a motion for summary judgment under Rule 56 of the
Federal Rules of Civil Procedure or dismissal under Rule 12(b)(6). Compare Weisberg v.
U.S. Dept. of Justice, 705 F.2d 1344, 1350-51 (D.C. Cir. 1983); Adams v. Richardson, 871
F.Supp. 43, 46 (D.D.C. 1994)] Goosby v. Osser, 409 U.S. 512, 521 n.7, 93 S.Ct. 854, 860
n.7, 35 L.Ed.2d 36 (1973), for the purpose of analysis of the Application.
This practice is supported by the observation that apportionment (the issue pertinent to
the instant case and which issue brings the case under the three-judge court act) might be
challenged on various grounds, by various tests, see, e.g., U.S. Dept. of Commerce v.
Montana, 503 U.S. 442, 447, 463, 112 S.CT. 1415, 1419, 1428-29, 118 L.Ed.2d 87 (1992); L.
Tribe, American Constitutional Law, 1063-84 (2nd ed. 1988), but all these challenges, by
definition, would be the proper "grist" for the three-judge court, Chapman v.
Meier, 420 U.S. 1, 14, 42 S.Ct. 751, 759, 42 L.Ed.2d 766 (1975), rather than for a single
district judge. In other words, the merits of the substantive issues of the case cannot be
weighed by a single district judge if the case is committed to the jurisdiction of a
three-judge district court.
Because the third element of the Police Officers' Guild test ("whether the case
presented otherwise comes within the requirements of the applicable three-judge
statute") addresses the nexus between the issues raised in the case at bar and the
substantive issues committed to three-judge district courts under 28 U.S.C. 2284(a),
this element should be addressed first. Because the first element of the Police Officers'
Guild test ("whether the complaint formally alleges a basis for equitable
relief") concerns relief, which logically follows everything else, it might be saved
for last. Therefore, counsel will enumerate and discuss the Police Officers' Guild
elements in the reverse order from their statement by the Court in Police Officers' Guild.
(1) Whether an Aspect of the Case Comes Within the Substantive Concerns of the Statute
The court's primary consideration in deciding whether a case is under the jurisdiction of
a three-judge district court is "whether the case presented ... comes within the
[substantive] requirements of the statute providing for a three-judge district
court." See 369 F.Supp. at 549-50. In other words, the court must determine whether
any matter in the Plaintiffs' case is among the matters Congress has subjected to the
jurisdiction of three-judge district courts.
Section 2284(a) of Title 28, U.S.C., provides, among other things, that "[a] district
court of three judges shall be convened when ... an action is filed challenging the
constitutionality of the apportionment of congressional districts[.]" So the question
is whether the instant case, in any way, concerns "the apportionment of congressional
districts."
The short answer is that it does, directly, as a necessary component of both Counts of the
Plaintiffs' Complaint. Specifically, the Plaintiffs assert that the Defendants' actions
have excluded, perpetuated exclusion, and have assisted others in excluding and
perpetuating the exclusion of the Plaintiffs from apportionment to a congressional
district.
Generally, "apportionment" is "the division of a population into
constituencies whose electors are to be charged with the selection of public
officers[;]" more simply, it is "the process of granting of representation to a
citizen or a group of citizens[.]" Alfred de Grazia, "General Theory of
Apportionment," 17 Law and Contemporary Problems 256, 256-57 (1952); compare Black's
Law Dictionary, 91 (5th ed. 1979) (apportionment is the "[d]etermination of the
number of representatives which a [place] may send to a legislative body.").
Conversely, apportionment is the designation of each geographic district or place which
will send a representative to a legislative body. See R.K. Scher, J.L. Mills, & J.J.
Holating, Voting Rights and Democracy; The Law and Politics of Districting, 4-6 (1997).
Thus, apportionment is about drawing lines and it necessarily involves the questions of
who draws the lines and who is on each side of each line.
Such drawing of lines is required by the Constitution, Art. I, 2, 3, as
amended by Amendment XIV, 2, and, as a present practical matter, results in
designation of 435 physical, geographic districts which each elect a representative to the
United States House of Representatives. See Pub. L. 105-119, Title II,
209(a)(1)-(2), Nov. 26, 1997, 111 Stat. 2480. In many situations throughout our history,
the same lines drawn by Congress which resulted in apportionment to a geographic district
of seats in the House also resulted in de facto "apportionment" to the same
district of representation in the Senate; this happens when the district apportioned is an
entire, new State. See Emanuel Celler, "Congressional Apportionment--Past, Present,
and Future," 17 Law and Contemporary Problems 268, 271 (1952) (discussing the
apportionment act of 1911, 37 Stat. 13 (1911), among others, which set the number of seats
in the House at 433, but also provided two more seats once Arizona and New Mexico were
admitted as States; such admission, of course, would also entail representation in the
Senate). Thus, apportionment is the foundation for representation of the citizens of the
United States in the House of Representatives and it sometimes is the occasion of
representation in the Senate as well.
In either case, apportionment is the primary constitutional insurance that the Congress of
the United States will be a "republican form of government." U.S. Const., Art.
IV, 4; Reynolds v. Sims, 377 U.S. 533, 582, 84 S.Ct. 1362, 1392, 12 L.Ed.2d 506,
reh. denied, 379 U.S. 870, 871, 85 S.Ct. 12, 13 (1964); Alfred de Grazia, supra, 17 Law
and Contemporary Problems at 256 ("Apportionment in some form remains an absolute
requirement of representative government."); Joel Francis Paschal, "The House of
Representatives: 'Grand Depository of the Democratic Principle'?" 17 Law and
Contemporary Problems 276 (1952).
[I]n this country the people govern themselves through their elected representatives and
...
"each and every citizen has an inalienable right to full and effective participation
in the
political processes" of the legislative bodies of the Nation, State, [and] locality
.... Since
"[m]ost citizens can achieve this participation only as qualified voters through the
election
of legislators to represent them," full and effective participation requires
"that each citizen
have an equally effective voice in the election of members of his ... legislature."
As Daniel
Webster once said, "the right to choose a representative is every man's portion of
sovereign power."
Board of Estimate of City of New York v. Morris, 489 U.S. 688, 693, 109 S.Ct. 1433, 1438,
103 L.Ed.2d 717 (1989) (emphasis added; quoting Reynolds, supra, 377 U.S. at 565, 84 S.Ct.
at 1378 and one of the attorneys before the court in Luther v. Borden, 48 U.S. (7 How.) 1,
30, 12 L.Ed. 581 (1849)).
Procedurally, the House of Representatives has the primary responsibility to
"allocate," Federation for American Immigration Reform v. Klutznick, 486 F.Supp.
564, 566 (D.D.C. 1980), or "apportion," Board of Estimate, supra, 489 U.S. at
694, 109 S.Ct. at 1438, seats in the United States House of Representatives to the
country, creating the various congressional districts. See The Decennial Population Census
and Congressional Apportionment, H.R. Rep. No. 1314, 91st Cong., 2d Sess., at 5-6 (1970)).
To accomplish this, Congress has charged the President with the responsibility of
"transmit[ting] to Congress a statement showing the whole number of persons in each
State, excluding Indians not taxed, as ascertained under [each] decennial census of the
population, and the number of Representatives to which each State [is] entitled ..., no
State to receive less than one Member." 2 U.S.C. 2a(a). The number reported by
the President are then used to calculate how many Representatives will be apportioned to
each state. See Franklin v. Massachusetts, 505 U.S. 788, 791-93, 112 S.Ct. 2767, 2770-71,
120 L.Ed.2d 636 (1992).
But Congress's charge to the President and the enumerations reported back to Congress both
assume certain preexisting, defined places in which people are to be counted: the States.
If (as is asserted in the instant case) Congress uses its powers to isolate a certain
district and withhold it from inclusion among the States, that district would not be
counted, the citizens there would be excluded from the count and excluded from
apportionment, and another "great American constituenc[y would be] robbed of [its]
rightful share of representation ..." [FOOTNOTE 4: For those lucky areas included in
the count for apportionment, a formula known as "the method of equal
proportions" is used to carry out the mathematical calculations which result in
actual allocation to each state of at least one representative and as many additional
representatives as required to insure, as closely as possible (given that fact that
populations vary widely among the various states) that apportionment of congressional
seats will conform to the principle of "one person, one vote." Board of
Estimate, supra, 489 U.S. at 692, 109 S.Ct. at 1437-38; Wells v. Rockefeller, 394 U.S.
542, 544, 89 S.Ct. 1234, 1236, 22 L.Ed.2d 535 (1969); Wesberry v. Sanders, 376 U.S. 1, 14,
84 S.Ct. 526, 533, 11 L.Ed.2d 481 (1964); Federation for American Immigration Reform,
supra, 486 F.Supp. at 566, 577; see also 2 U.S.C. 2a(a) & (b); see generally
Lawrence F. Schmeckebier, "The Method of Equal Proportions," 17 Law and
Contemporary Problems 302 (1952); 55 Stat. 761 (1941), 2 U.S.C. 2a.] S. Rep. No. 2,
71st Cong., 1st Sess., 2-3 (1929).
Certainly, it's now a truism that apportionment is no neutral, clerical process of
government. Instead, it is a field of battle for political power. See Franklin, supra, 505
U.S. at 791-92, 112 S.Ct. at 2771.
The key concept to grasp is that there are no neutral lines for legislative districts. ...
[E]very line drawn aligns partisans and interest blocs in a particular way different from
the
alignment that would result from putting the line in some other place. And ... the
electoral
result will be different in each one. Robert G. Dixon, Jr., "Fair Criteria and
Procedure for Establishing Legislative Districts" in B. Grofman, A. Lijphart, R.
McKay, & H. Scarrow, eds., Representation and Redistricting Issues, 7-8 (1982); de
Grazia, supra, 17 Law and Contemporary Problems at 257. "[A]s lines are drawn, some
parts of the population are advantaged, and some are disadvantaged." Scher, Mills,
& Holating, supra, at 6. "The apportionment of seats in a legislature is the
apportionment of power within the community. Any scheme of legislative apportionment
represents choices regarding how much power shall be allocated to the diverse interests
within the society." R.C. Cortner, The Apportionment Cases, 3 (1970).
Since fair and equitable apportionment "involves the fundamental principle of
equality which permeates our entire Constitution[, ...] its denial imperils the very heart
of our democracy."
Celler, supra, 17 Law and Contemporary Problems at 274. When a government of a
jurisdiction provides that its component representatives be elected by the citizens of the
jurisdiction, "a citizen has a constitutionally protected right to participate in
elections on an equal basis with other citizens in the jurisdiction." Dunn v.
Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 1000, 31 L.Ed.2d 274 (1972); Kramer v. Union
Free School District, 395 U.S. 621, 626-29, 89 S.Ct. 1886, 1889-90, 23 L.Ed.2d 583 (1969);
Gray v. Sanders, 372 U.S. 368, 379-80, 83 S.Ct. 801, 807-08, 9 L.Ed.2d 821 (1963).
Thus, it's an "established principle that ... laws 'distributing the
franchise'--i.e., granting 'the right to vote to some bone fide residents of requisite age
and citizenship' but denying it to others -- are presumptively invalid." Jesse H.
Choper, "Consequence of Supreme Court Decisions Upholding Individual Rights," 83
Mich. L. Rev. 1, 85-86 (1984) (emphasis added; quoting Kramer, supra, 395 U.S. at 626
& 627, 89 S.Ct. at 1889-90). "The majority of a [political jurisdiction] ... can
no more place a minority in oversize districts without depriving that minority of equal
protection of the laws than they can deprive the minority of the ballot altogether
...." Avery v. Midland County, Texas, 390 U.S. 474, 481 n.6, 88 S.Ct. 1114, 1118-19
n.6, 20 L.Ed.2d 45 (1968) (emphasis added).
Certainly, then, an apportionment of congressional districts under which the residents of
a discrete geographic district are "denied access to the political process equal to
the access of other groups" represented in the legislature which rules them both,
Chapman, supra, 420 U.S. at 17, 95 S.Ct. at 761 (citing White, supra, 412 U.S. at 765-66,
93 S.CT. at 2339-40), where the voting strength of that discrete population are
"minimized or canceled out," Fortson v. Dorsey, 379 U.S. 433, 439, 85 S.Ct. 498,
501, 13 L.Ed.2d 401 (1965) (emphasis added), where the citizens have been systematically
and perpetually "'[f]enc[ed] out' from the franchise," Carrington v. Rash, 380
U.S. 89, 94, 85 S.Ct. 775, 779, 13 L.Ed.2d 675 (1965) (emphasis added), must be
"presumptively invalid." Choper, supra, (emphasis added).
The Plaintiffs in this case bring two Counts of violations of their fundamental
constitutional rights. Each Count necessarily incorporates a direct constitutional
challenge to an existing state of apportionment.
Most directly, apportionment is an inherent and necessary component of a republican form
of government. Reynolds, supra, 377 U.S. at 582, 84 S.Ct. at 1392; de Grazia, supra, 17
Law and Contemporary Problems at 256; Paschal, supra, 17 Law and Contemporary Problems
276. Under the present scheme of apportionments for congressional representation, the
Plaintiffs are "fenced the District out," Carrington, supra, 380 U.S. at 94, 85
S.Ct. at 779, of apportionment. Congress has "deprived" the citizens of the
District of Columbia of the ballot "altogether." Avery, supra, 390 U.S. at 481
n.6, 88 S.Ct. at 1118-19 n.6. Therefore, the Plaintiffs' rights are violated; the
Defendants violate their obligations to guarantee to the citizens of the District a
republican form of government, U.S. Const. Art. IV, 4, cl. 1, and, thus, injure the
Plaintiffs. This is Count Two of the Plaintiffs' Complaint.
Count One of the Complaint presents an entirely different claim, which also concerns
apportionment as a necessary component of the claim. In Court One of the Complaint, the
Plaintiffs assert that their rights to the equal protection of the laws are violated
because Congress has treated other areas in the United States (over which Congress holds
or has held identical, plenary power to the plenary power it still holds over the District
of Columbia) differently than it has treated the District of Columbia (for no good reason
whatsoever, much less for any compelling reason), trenching upon the Plaintiffs'
fundamental rights and privileges to the equal protection of the laws.
Specifically as concerns apportionment, Congress has apportioned representation to the
other areas to which the District of Columbia might be compared most closely. Thus, not
only has Congress "denied access to the political process equal to the access of
other groups" represented in Congress, Chapman, supra, 420 U.S. at 17, 95 S.Ct. at
761, but Congress has passed "laws 'distributing the franchise'--i.e., granting 'the
right to vote to some bone fide residents of requisite age and citizenship' but [has]
den[ied] it to [the District of Columbia, and such action is] presumptively invalid."
Choper, supra, 83 Mich. L. Rev. at 85-86 (quoting Kramer, supra, 395 U.S. at 626 &
627, 89 S.Ct. at 1889-90).
For instance, from 1791 until 1846, Congress held absolute, "plenary" powers
over approximately 33 square miles of land area located south-west of the Potomac River,
then called "Alexandria County," then within the District of Columbia. In 1845,
Congress retroceded all jurisdiction over that area to the State of Virginia.
That precise action--retrocession to Virginia--resulted in the apportionment of
representation in the House of Representatives to the residents of that area. Today, the
citizens who reside in what was called Alexandria County when it was a part of the
District of Columbia (with some negligible deviations here and there) enjoy representation
in the House of Representatives, being apportioned to the eighth congressional district of
the State of Virginia. Of course, by also being part of a state, they enjoy representation
in the Senate.
Likewise, Congress once held absolute, "plenary" powers over an area of a little
more than one square mile located just north of Bethesda, Maryland. This is a
"federal enclave" where the National Institutes of Health is located. The
residents of this federal enclave were treated as residents of an area wholly outside the
State of Maryland and, thus, were not apportioned representation in the House of
Representatives.
After protest and petitioning by these residents, however, Congress answered the
residents' requests for a remedy and passed various acts which returned sufficient
authority to the state of Maryland that the residents of this federal enclave came to be
treated as residents of the State of Maryland. See Evans v. Cornman, 398 U.S. 419, 90
S.Ct. 1752, 29 L.Ed.2d 370 (1970). Today, the citizens who reside within the area of the
National Institutes of Health enjoy representation in the House of Representatives, being
apportioned to the eighth congressional district of the State of Maryland. Of course, by
also being part of a state, they enjoy representation in the Senate.
The federal enclave containing the National Institutes of Health is only one of thousands
of federal enclaves. By the most recent counts, more than a million citizens of the United
States reside in these enclaves.
Until a few decades ago, Congress exercised exactly the same plenary powers over the
federal enclaves as it still exercises over the District of Columbia. By virtue of those
powers, the citizens of those areas were excluded from apportionment to any congressional
district, just as the citizens of the District still are excluded from apportionments. By
virtue of those powers, Congress determined whether the populations within those areas
would be included--or would not be included--in apportionment of seats in the federal
government to the country at large. See Jurisdiction Over Federal Areas Within the States;
Report of the Interdepartmental Committee for the Study of Jurisdiction over Federal Areas
Within the States; Part I: The Facts and Committee Recommendation (1956) and Ibid.; Part
II: A Text of the Law of Legislative Jurisdiction (1957).
But Congress took affirmative steps to change the status of the federal enclaves. One of
the things Congress did was to make sure that the citizens of the federal enclaves would
be included in apportionments of representation in congressional districts. Apportionment
of representation in Congress was a direct and inescapable effect of the actions the
government of the United States took with regard to the federal enclaves. Yet Congress has
fenced the citizens of the District of Columbia out of any apportionment. See Carrington,
supra, 380 U.S. at 94, 85 S.Ct. at 779.
The totality of exclusion from apportionment is the only thing which might make this case
seem unique among all "apportionment cases." But see Avery, supra, 390 U.S. at
481 n.6, 88 S.Ct. at 1118-19 n.6 ("The majority of a [political jurisdiction cannot]
... deprive the minority of the ballot altogether ...."). The hallmark apportionment
cases concerned situations where, among comparative districts, the residents all voted for
representatives, but the populations of the districts varied sufficiently widely that each
citizen in one district had a proportionately weaker voice in government than each citizen
in the other district. In response to such inequity, the typical response from the Supreme
Court has been to observe that,
[t]he personal right to vote is a value in itself, and a citizen is, without more and
without
mathematically calculating his power to determine the outcome of an election,
shortchanged if he may vote for only one representative when citizens in a neighboring
district, of equal population, may vote for two; or to put it another way, if he may vote
for
one representative and the voters in another district half the size also elect one
representative.
Board of Estimate, supra, 489 U.S. at 698, 109 S.Ct. at 1440. On the basis of such
observations, the courts have usually ordered that the challenged apportionment violated
the Constitution.
But in the instant case, the Plaintiffs complain of a situation where one of the compared
districts elects no one. The Plaintiffs' district has been excluded persistently from any
possible apportionments. Thus, this situation is far more egregious than that in which the
citizens of the "disfavored" district have proportionately less power than the
citizens of another district. This is a situation in which the citizens have no power.
If a deviation of 78% between districts violates constitutional principles, Board of
Estimate, supra, 489 U.S. at 702, 109 S.Ct. at 1442, if a deviation of one-third that
(26%) between districts violates constitutional principles, Swann v. Adams, 385 U.S. 440,
87 S.Ct. 569, 17 L.Ed.2d 501 (1967), then it must be beyond question that a deviation of
100% between "districts" cannot be justified and should be subjected to strict
scrutiny by a three-judge district court.
The situation of the District of Columbia might be succinctly analogized to the following
hypothetical situation.
Assume an elementary school where all the students in all the grades are to be apportioned
to baseball teams for a tournament. Of course, all the teams should have an equal number
of members and equal strengths.
But there's one problem. The Principal has locked the students in Mrs. Bethune's sixth
grade class in their classroom. All the other sixth-grade classes are apportioned to
teams, along with all the students in the first, second, third, fourth, and fifth grades.
It might be noted that, until a few years go, the Principal had locked all the sixth grade
students into their classrooms. But the students had successfully pointed out to the
Principal that this was a violation of school rules and seriously unfair, so the Principal
had unlocked their doors to include them in teams -- unlocked all the doors, that is,
except for Mrs. Bethune's door.
There's no reason for Mrs. Bethune's class to be locked out of the games. They are no
different than any of the other students in the sixth grade, or in the entire school, for
that matter.
Certainly, there are a lot of other problems with what the Principal is doing to Mrs.
Bethune's class. The Principal is hurting them in many ways. But one very clear way in
which they're injured is by exclusion from being counted for -- apportioned to -- baseball
teams.
If this analogy seems out of place in a court of law, counsel suggests that this is only
because this case presents questions which have been avoided, ignored, discounted, and
outright "ducked" so many times in so many places that this case must appear to
present fundamentally unique legal questions. It seems impossible that such a situation as
obtains for these Plaintiffs could exist. Therefore, some seemingly trivial analogies
might be required in order to show that these issues can be resolved into comprehensible
patterns with comprehensible remedies under legal principles which are now widely accepted
and universally applied.
Replace reference to the school with reference to the entire United States. Replace
reference to each class in the first, second, third, fourth, and fifth grades with
reference to the States. Replace reference to the sixth grade classes with reference to
all the places over which Congress has plenary powers of exclusive legislation. Replace
reference to Mrs. Bethune's class with reference to the District of Columbia. Replace
reference to the Principal with reference to Congress. And, finally, replace reference to
baseball teams with reference to congressional districts. The analogy remains sound.
The court does not risk succumbing to an "imbroglio of mathematical
manipulation," Mahan v. Howell, 410 U.S. 315, 319 n.6, 93 S.Ct. 979, 982 n.6, 35
L.Ed.2d 320 (1973) (on rehearing), to ascertain the distinction drawn in this case.
Congress has singled out this sixty-seven square mile area in which over a half-million
people live (including these Plaintiffs) and "deprive[d it] of the ballot
altogether." Avery, supra, 390 U.S. at 481 n.6, 88 S.Ct. at 1118-19 (emphasis added).
This situation is not, finally, unique. This situation can be analyzed and should be
analyzed. This situation can be remedied and should be remedied. The first step toward
analysis and remedy is to realize that this case involves one of the most basic concepts
in the law: apportionment of congressional and other districts.
In conclusion, therefore, the primary element or consideration of Police Officers' Guild
(the third element, as enumerated in Police Offices' Guild), "whether the case
presented ... comes within the [substantive] requirements of the applicable three-judge
statute," 369 F.Supp. at 548-49, must be answered in the affirmative, because this
case does "challeng[e] the constitutionality of the apportionment of congressional
districts[.]" 20 U.S.C. 2284(a).
(2) Whether the Constitutional Question Presented is Substantial
The second consideration defined by Police Offices' Guild whether a case comes under the
jurisdiction of a three-judge district court is an evaluation whether the constitutional
questions presented in the case are substantial.
In Police Officers' Guild, this court said that "[a] constitutional claim is
substantial unless it is either 'obviously without merit or . . . its unsoundness so
clearly results from previous decisions . . . as to foreclose the subject.'" 369
F.Supp. at 549, quoting Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 7 L.Ed.2d 512
(1962) (other citations omitted). The Supreme Court has provided additional guidance on
this element or consideration of "Constitutional insubstantiality."
"Constitutional insubstantiality" for [the purpose of determining whether a
three-judge
district court is required under the three-judge court statutes] has been equated with
such
concepts as "essentially fictitious," "wholly insubstantial,"
"obviously frivolous," and
"obviously without merit," The limiting words "wholly" and
"obviously" have cogent legal
significance. In the context of the effect of prior decisions upon the substantiality of
constitutional claims, those words import that claims are constitutionally insubstantial
only
if the prior decisions inescapably render the claims frivolous; previous decisions that
merely render claims of doubtful or questionable merit do not render them insubstantial
for
the purposes of [the three-judge court statutes]. A claim is insubstantial only if
"'its
unsoundness so clearly results from the previous decisions of this court as to foreclose
the
subject and leave no room for the inference that the questions sought to be raised can be
the subject of controversy.'"
Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 858-59, 35 L.Ed.2d 36 (1973) (emphasis
added; citations omitted); [FOOTNOTE 5: Goosby concerned a request under 28 U.S.C.
2281, which has been repealed. For the same reasons that McLucas and Police Officers'
Guild may be taken as instructive even though they concerned Section 2282, see footnotes 1
and 2, supra, Goosby should guide consideration of "insubstantiality." The
provisions of the act under which these Plaintiffs make their application (29 U.S.C.
2284) differ insignificantly from the provisions of the acts which were at issue in Goosby
(28 U.S.C. 2281) and Police Officers' Guild (28 U.S.C. 2282)] see also Adams,
supra, 871 F.Supp. at 45 (quoting and citing Police Officers' Guild, supra, 369 F.Supp. at
548-49; Silver v. Queen's Hospital, 53 F.R.D. 223, 225 (D. Hawaii 1971); Bailey, supra,
369 U.S. at 33, 82 S.Ct. at 551; Ex parte Poresky, 290 U.S. 30, 32, 54 S.CT. 3, 4-5, 78
L.Ed. 152 (1933); and Armour, supra, 925 F.2d at 989).
The question, in short, is whether "[t]he precise issues here raised have [ ]ever
been decided by the United States Supreme Court" or even by another court of
dispositive authority over this court, leaving no "room for disagreement on the
issue[s] presented[.]" Doe v. Martin, 404 F.Supp. 753, 755 (D.D.C. 1975). If the
precise issues raised in this case have not been decided by the Supreme Court or another
dispositive authority, then all reasonable debate on any of the issues presented is under
the jurisdiction of a three-judge district court.
Certainly, any question which has never been raised, much less analyzed, cannot have been
settled or deemed "answered." Even were there an opinion which addressed similar
or related questions, "[t]he scope and effect of a prior judgment are always
legitimate subjects of argument and resolution in a subsequent action ...." Consumers
Union v. Consumer Product Safety Comm'n, 561 F.2d 349, 354, (D.C. Cir.), reh. denied, 565
F.2d 721 (1977) (footnote with citations omitted). Thus, consideration of similar or
related questions does not dispose of a novel question placed before the bar.
So far as counsel for the Plaintiffs can determine, no opinion of any court precludes the
claims made in the instant case. Further, no opinion countervails the Plaintiffs'
assertions and arguments. And no previous case discusses the questions presented here,
"formulated to bring [them] into focus, and the evidence has not been offered or
appraised to decide [them.]" Wright v. Rockefeller, 376 U.S. 52, 58, 84 S.Ct. 603,
606, 11 L.Ed.2d 512, reh. denied, 376 U.S. 959, 84 S.Ct. 964 (1964).
The only case of which Plaintiffs' counsel is aware which might be relevant is a case
styled Darby v. United States, in the District of Columbia Court of Appeals, with an
opinion reported at 681 A.2d 1156 (D.C. 1996), cert. denied, ____ U.S. ___, 117 S.Ct. 596,
136 L.Ed.2d 524, reh. denied, ___ U.S. ___, 117 S.Ct. 1024, 136 L.Ed.2d 899 (1997).
[FOOTNOTE 6: Plaintiffs' counsel in the instant case was Ms. Darby's counsel, so he knows
very well what claims and arguments were brought in the case] In Darby, the D.C. Court of
Appeals stated that the Guarantee Clause "applies to the states and cannot be read to
restrict the power of Congress to legislate for the District[.]" 681 A.2d at 1158.
Were this statement probative, it might be relevant to the claims under Count Two of the
Plaintiffs' Complaint.
This statement, however, is not probative. First, the D.C. Court of appeals is not the
Supreme Court, so its decisions are not necessarily preclusive here, as required for a
finding of "insubstantiality" under Goosby and Doe. Goosby, supra, 409 U.S. at
518, 93 S.Ct. at 858-59; Doe, supra, 404 F.Supp. at 755.
But second, and more to the point, the statement of the D.C. Court of Appeals stands on
its own, supported only by two citations, one to Palmore v. United States, 411 U.S. 389,
407, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973) and the other to District of Columbia v.
A.F.G.E., 619 A.2d 77, 81 (D.C. 1993). There is no statement anywhere in Palmore which
supports the proposition that the Guarantee Clause does not apply to the District of
Columbia; in fact, the Guarantee Clause is not mentioned in Palmore at all. And A.F.G.E.
does not mention--much less analyze--the Guarantee Clause either. A.F.G.E. mentions only
the Contract Clause, Art. I, 10, para. 1, clause 8. The two clauses serve different
purposes in the Constitution, have radically different applications, and there is no
reason whatsoever that a statement concerning the Contract Clause should have any bearing
on the Guarantee Clause. And counsel is aware of no authority otherwise for the
proposition that the Guarantee Clause, U.S. Const., Art. IV, Sect. 4, does not apply to
the District of Columbia.
Third, the questions presented in Darby were whether the local court system of the
District of Columbia (the Superior Court of the District of Columbia and the D.C. Court of
Appeals) lacked criminal jurisdiction over Ms. Darby for various reasons. These were
vastly different questions from the questions presented in the instant case.
By way of further clarification, the plaintiffs in Goosby were pretrial detainees in
Philadelphia prisons. These detainees claimed that the State of Pennsylvania violated
their constitutional rights by barring them from voting, completely, in any way. 409 U.S.
at 521-22, 93 S.Ct. at 860. Pennsylvania answered that a previous decision of the Supreme
Court, McDonald v. Board of Election Commissioners, 394 U.S. 802, 89 S.Ct. 1493, 23
L.Ed.2d 1 (1969), rendered the plaintiffs' claim "wholly insubstantial." 409
U.S. at 513-16, 93 S.Ct. at 856-57.
McDonald, which Pennsylvania took as dispositive, had been brought by pretrial detainees
in Cook County, Illinois, alleging that the State of Illinois violated their
constitutional rights by barring them from voting by absentee ballot. That claim was
resolved in favor of the State of Illinois in McDonald because there was no showing that
the plaintiffs were barred completely from voting and there was no showing that Illinois
intended to bar them completely from voting. 394 U.S. at 807-08, 89 S.Ct. at 1408.
When the Supreme Court compared its previous holding in McDonald with the claims presented
in Goosby, the Court found, "it is clear that McDonald is not a prior decision of
this court that 'foreclose[s] the subject' of petitioners' constitutional attack
...." 409 U.S. at 518-19, 93 S.Ct. at 859. The Court distinguished Illinois' denial
of one method of voting from Pennsylvania's denial of all methods of voting. Thus, the
Court rejected the argument that the plaintiffs' claims in Goosby were "wholly
insubstantial" in the sense or with the effect that insubstantiality would obviate
the jurisdiction of a three-judge district court. [FOOTNOTE 7: It might be noted that the
constitutional claim in Police Officers' Guild was (generally) that a certain statute of
local application to the District of Columbia infringed the plaintiffs' rights to freedom
of speech and association under the First Amendment to the Constitution. 369 F.Supp. at
548-49. With little analysis in its decision that a three-judge court had jurisdiction
over the matter, the court concluded that, "[c]learly, ... the plaintiffs ... raise a
substantial constitutional claim," id. at 549, despite a plethora of cases dealing
with First Amendment issues in pubic employment. See T.I. Emerson, The System of Freedom
of Expression, 563-92 (1970)]
Finally, still considering the only opinion of which counsel is aware which might be
relevant to this case, even if Darby were construed as relevant to Court Two of the
instant case, Darby does not countervail the issues or arguments presented under Count One
of the Plaintiffs' Complaint, which are also relevant to and support the proposition that
this case is under the jurisdiction of a three-judge district court.
Thus, other than the trivial statements in Darby, there is no written record of any
previous consideration, by any court, of the constitutional challenges brought in the
instant case. Thus, the record is silent on the questions presented in this case. Silence
cannot be taken as dispositive of anything. Certainly, silence cannot be taken as an
"inescapable" rule, rendering any later claim "frivolous" or
"foreclosing" later examination of the subject.
Unlike the situation in Goosby, there is no case in which the Equal Protection claims or
the Guarantee Clause claims brought in the instant case--or the claims of exclusion from
apportionment as part and parcel of these Equal Protection and Guarantee Clause
claims--were raised, much less addressed, thus not settled. If no case can be cited in
which the claims were address and no case can be cited in which the claims were settled,
if no case can be cited which obviates the claims, then they are corpulently
"substantial" for the purposes of determining whether the claims fall under the
jurisdiction of a three-judge district court.
In conclusion, the second element or consideration of Police Officers' Guild,
"whether the constitutional question presented is substantial, 369 F.Supp. at 548-49,
must be answered in the affirmative.
(3) Whether the Complaint Formally Alleges a Basis for Equitable Relief
The final determination required by Police Offices' Guild in considering whether the case
is under the jurisdiction of a three-judge district court is whether the Complaint
formally alleges a basis for equitable relief.
The court should determine that this element is satisfied, i.e., that the case presents a
basis for equitable relief, if the relief sought in the case is relief the court could
grant if the Plaintiffs were to prevail on the merits and if the relief the court granted
would result in reapportionment. See Karcher v. Daggett, 462 U.S. 725, 730-31, 103 S.Ct.
2653, 2658, 77 L.Ed.2d 133 (1983); State of Montana v. U.S. Dept. of Commerce, 775 F.Supp.
1358, 1364-65 (D. Mont. 1991), rev'd on other grounds, 503 U.S. 442, 112 S.Ct. 1415, 118
L.Ed.2d 87 (1992); Skolnick v. State Electoral Board of Illinois, 336 F.Supp. 839, 872-73,
876 (N.D. Ill. 1971); Wright Miller & Cooper, Federal Practice and Procedure;
Jurisdiction 2d 4235 at 606.
Of course, the hallmark "apportionment case" concerns disparities between
different districts, all of which vote, but there is no reason why this element could not
be answered in the affirmative for a case in which the disparity is absolute, such that
one of the districts has no vote because it is excluded from apportionment. In such a
case, the remedy would still be "reapportionment," albeit reapportionment from
exclusion to equity, instead of from disparity to equity.
In the instant case, the Plaintiffs assert that their lack of actual representation in the
Congress of the United States, [FOOTNOTE 8: While the Plaintiffs do enjoy the benefits of
sending a "Delegate" to the House of Representatives, they are not represented
in the House, since the Delegate is not entitled to vote and is denied numerous other
privileges of Membership in Congress. The Plaintiffs have no representation in the Senate.
The "shadow senators" are an artifact of local political choices to seek
admission as a state according to a certain historic model. Despite their valiant efforts
to "represent" the citizens of the District, they are lobbyists and not
representatives; they have no vote, can claim no privileges to address the Senate, have no
seats on committees, and so on] among other things, violates two categories of their
rights under the Constitution. To remedy these violations, the Plaintiffs request three
categories of declaratory and injunctive relief.
Among the provisions requested by way of declaratory relief are declarations that the
Congress of the United States and the Defendants violate the Plaintiffs' constitutional
rights by excluding them from apportionments to congressional districts. Plaintiffs also
request declarations which amount to saying that the Defendants must take such steps as
they can within the powers of their offices to remedy the situation. Among injunctions
requested by way of relief are injunctions which boil down to mandates that the present
apportionments not be executed or enforced.
Even if the court, ultimately, were only to grant the most basic declaratory Relief
requested in paragraph A of the Relief section of the Complaint, the status quo could not
be sustained and the government of the United States would be compelled (by simple
requirements to get on with the job of governing a nation) to take steps to bring the
District of Columbia into the political life of the nation, which would require
apportionment of representation in Congress.
In short, one way or another, through the relief requested in this suit, it will be
incumbent upon the Defendants and the government of the United States generally to take
steps to insure that the Plaintiffs and all other citizens of the District of Columbia
were represented in Congress. Ultimately, it would necessarily fall to Congress to
apportion a representative (or representatives) to the Plaintiffs and all other citizens
of the District of Columbia, one way or another, since the actions of those executing the
present, unconstitutional apportionments would have been blocked from executing or
enforcing those unconstitutional apportionments.
In conclusion, the final element or consideration of Police Officers' Guild (the first
element, as enumerated in Police Offices' Guild), "whether the complaint formally
alleges a basis for equitable relief," 369 F.Supp. at 548-49, must be answered in the
affirmative. Taking the Plaintiffs' allegations and arguments as correct and meritorious,
an inescapable component of any remedy would be apportionment of representation in the
Congress of the United States to the Plaintiffs.
Concluding Observations
Thus, since all three elements or considerations of the Police Officers' Guild test for
whether a case comes under the jurisdiction of a three-judge district court are answered
in the affirmative for the case at bar, this case falls under the jurisdiction of a
three-judge district court. Therefore, the court should refer the case to the Chief Judge
of the D.C. Circuit, 28 U.S.C. 2284(b)(1), for nomination of judges to comprise the
three-judge district court which will hear all further proceedings in this case.
To the extent that any ambiguity remains whether Congress "intended" that a case
such as this one fall under the provisions of 28 U.S.C. 2284(a), those questions
must be resolved in the Plaintiffs' favor. First, the plain language of the Act and of the
Act as construed by the courts covers the issues and claims in the instant case, even if
those issues and claims are (to any degree) "unique" among all previous
apportionment cases. See Wright, Miller & Cooper, Federal Practice and Procedure,
Jurisdiction 2d., 4235 at p. 606.
Second, Congress has submitted to the jurisdiction of three-judge district courts all
cases concerning malapportionment caused by States. There is no basis supporting (and
equity augurs against) insulating the acts of Congress from attack, in that same forum,
for malapportionment caused by Congress. Just as Congress "lacks the constitutional
power to insulate States from attack with respect to alleged deprivations of individual
constitutional rights," Reynolds, supra, 377 U.S. at 582, 84 S.Ct. at 1392 (emphasis
added; apportionment case not unlike the instant case), Congress should not be assumed to
have any power to insulate itself (its instrumentalities) from attack with respect to far
more grave deprivations of individual constitutional rights.
Likewise, is must be noted that the actual, final government of the District of Columbia
is Congress itself. By fencing the District off from the rest of the country, by not
treating the citizens of the District in a manner substantially equivalent to the manner
in which it has treated the citizens of the federal enclaves and in which it has treated
the citizens of the former portion of the District of Columbia now a part of Virginia,
Congress has retained for itself a laboratory for experiments it could not authorize
elsewhere and which are not necessarily welcome by the population subjected to Congress's
creativity. The courts should look with a strictly critical eye upon any apportionment
scheme which so protects the parochial power and interests of whichever governmental body
is primarily responsible for the apportionment scheme. "If the election law in
question has the effect of immunizing the current leadership at the expense of new or
minority views, the Court's precedent demonstrates little tolerance. Such laws are
subjected to strict scrutiny and, generally, held unconstitutional." League of Women
Voters v. Diamond, 965 F.Supp. 96, 101 (D. Me. 1997).
Finally, it is now quite clear that the courts must step in to cure malapportionment;
because of the "paralytic nature of malapportionment--whose cure would guarantee some
lawmakers the loss of their seats and would imperil those of many others," Choper,
supra, 83 Mich. L. Rev. at 94 n.647, there is no political cure to serious
malapportionment.
In other words, as is now well-settled and admitted even by the government of the United
States, see Franklin, supra, 505 U.S. at 801 n.2, 112 S.Ct. at 2776 n.2, challenges to
congressional apportionments are not political questions; they are justiciable and
properly may be placed before the courts for redress. See Montana, supra, 503 U.S. at
458-59, 465, 112 S.CT. at 1425-25, 1430.
For all these reasons, this case is under the jurisdiction of a three-judge district
court. Therefore, the Plaintiffs respectfully request that this case be forwarded to the
Chief Judge of the United States Circuit Court for the District of Columbia Circuit for
nomination of a three-judge district court.
Respectfully submitted,
George S. LaRoche,
counsel for the Plaintiffs