Petition — DuBois v. City of College Park

82-813 7

Otfiee - Supreme Gout US.

Ho. FILED

OCT 18 1982

SUPREME COURT OF THE UNITED STAT@S84nNver v. erevas.

CLERK

October Term, 1982

RENEE DuBOIS

DAVID JOHNSON

and

ZACHARY KINNEY

Petitioners

Vv.

CITY OF COLLEGE PARK

and

MIRIAM WOLF

Respondents

PETITION FOR WRIT OF

CERTIORARI TO THE

COURT OF APPEALS

OF MARYLAND

KENNETH A. LECHTER

DAVID K. NISBETT

Attorneys for Petitioners

4415 Old Branch Avenue

Marlow Heights, MD 20031

(301)423-1000

For the American Civil Liberties

Union; Prince George's County

Chapter; FRED R. JOSEPH,

Legal Director

QUESTION PRESENTED FOR REVIEW

Whether the Court of Appeals of

Maryland erred in approving a reapportion-

ment plan which permits only registered

voters to be counted in the apportionment

base for determining the apportionment of

Councilmanic Districts in the City of

College Park?

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW

TASLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTIONAL STATEMENT

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE

ARGUMENT

CERTIFICATE OF SERVICE

APPENDIX

ii

TABLE OF AUTHORITIES

Cases

Burns v. Richardson, 384 U.S. 73 (1966)

Carrington v. Rush, 380 U.S. 39 (1965)

Ki atrick v. Preisler, 394 U.S. 526

(1969)

Martin v. Venables, 401 F. Supp. 611

(D. Conn., 1975)

Reynolds v. Sims, 377 U.S. 533 (1964)

Skinner v. Oklahoma, 316 U.S. 535 (1942)

Wesberry v. Sanders, 376 U.S. 1 (1964)

OFFICIAL AND UNOFFICIAL

REPORTS OF OPIIILONS

BELOW

DuBois v. City of College Park,

280 Md 525, 375 A2d 1098 (1977)

DuBois v. City of College Park,

286 Md 677, 410 A2d 577 (1980)

DuBois v. City of con tene Park,

Md , 447 A2d 838 (1982)

iii

JURISDICTIONAL STATEMENT

The Petitioners herein seek review of

the judgement of the Court of Appeals of

Maryland dated and filed on July 19, 1982.

The jurisdiction of this Court to

review the judgement by writ of certiorari

is invoked pursuant to 28 U.S.C. Section

2101.

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment XIV

Section l

All persons born or naturalized in the

United States, and subject to the jurisdic-

tion thereof, are citizens of the United

States and of the State wherein they reside.

No state shall make or enforce any low which

shall abridge the privileges or immunities

of citizens of the United States; nor shall

any State deprive any person of life, liber-

ty, or property, without due process of law;

nor deny to any person within its jurisdiction

iv

the equal protection of the laws.

Section 2

Representatives shall be apportioned a-

mong the several States according to their

respective numbers, counting the whole num-

ber of persons in each State, excluding In-

dians not taxed. But when the right to vote

at any election for the choice of electors

for President and Vice-President of the

United States, Representatives in Congress,

the Executive and Judicial officers of a

State, or the members of the Legislature

thereof, is denied to any of the male inha-

bitants of such State, being twenty-one

years of age, and citizens of the United

States, or in any way abridged, except for

participation in rebellion, or other crime,

3 the basis of representation therein shall be

reduced in the proportion which the number of

such male citizens shall bear to the whole

number of male citizens twenty-one years of

age in such State.

STATEMENT OF THE CASE

The Petitioners brought this action

pursuant to Maryland Rule 209(a) for the

named Petitioners and on behalf of all

those students similary situated, seeking

a declaration that the councilmanic dis-

tricts of the City of College Park are

malapportioned in violation of the Peti-

tioners’' rights under the Equal Protection

Clause of the Fourteenth Amendment of the

Constitution of the United States of America.

The case was initiated with the filing

of a Bill of Compliant for Declaratory Relief

alleging that the councilmanic districts of

the City of College Park were unconstitution-

ally apportioned in that, if students were

counted in determining the population of

Districts Three and Five for purposes of ap-

portionment, said Districts would be uncon-

stitutionally disproportionate to the other

districts, and, therefore, the votes of

students in those districts would be dilut-

ed in violation of the Equal Protection

Clause of the Fourteenth Amendment. It was

stipulated that students in Districts Three

and Five were intentionally not counted by

the City of College Park in determining the

size of these Districts; and further, it

was stipulated that students in these Dis-

tricts could vote in College Park elections

if otherwise qualified pursuant to the Col-

lege Park Code. It was likewise agreed that

the named Petitioners are registered to vote

and, in fact, voted in City elections held

in November, 1975.

The City defended this action initial-

ly on the basis that the named Petitioners

did not have standing to bring this action,

alleging that they were not bona fide resi-

dents of the City of College Park.

The matter went to hearing on February

4, 1976, before Judge Joseph A. Mattingly.

At the hearing, evidence was adduced by the

Respondents indicating that the named Peti-

tioners were not domiciliaries of the City

of College Park, using the classic tests of

situs of drivers’ licenses, tax returns,

and the like and, after Memoranda of Law

were filed, the Court submitted a Memoran-

dum Opinion dismissing the Petitioner's

claim for lack of standing on the basis

that they were not domiciliaries of the City

of College Park.

The Petitioners appealed the dismissal

to the Court of Special Appeals and the Court

of Appeals, on its own Motion, filed a Writ

of Certiorari to the Court of Special Ap-

peals. After the filing of briefs and oral

argument, the Court of Appeals reversed the

findings of the lower court on the issue of

the standing of the Petitioners without

reaching any decision on the merits of the

Petitioners’ claim. After mandate, the case

was reargued before Judge Mattingly on Oct-

ober 6, 1977.

On the merits, the City, while conced-

ing that, if the students in Districts Three

and Five were counted, those voting Dis-

tricts would be malapportioned, argued that

the City had the right to exclude those stu-

dents in the on-campus districts (i.e, Dis-

tricts Three and Five) because they were

either transients, short-term residents or

nonresidents. The Petitioners argued that

one could not reasonably distinguish between

those students on-campus and those students

off-campus. The City argued that there can

be great fluctuations of the population of

students on-campus causing a constant need

to reevaluate the boundaries of the various

councilmanic districts. Additionally, the

City argued that the number of on-campus stu-

dents who are, in fact, bona fide residents

of Prince George's County is virtually negli-

gible.

Petitioners argued that if you exclude

the on-campus students but count the off-

campus students, which it is agreed occurs,

that you then cannot logically and constitu-

tionally differentiate between the two

classes. Petitioners further argued that

the question of bona fide residency would

have been decided when a student registered

to vote, which any student has the right to

do and that collateral attack on such quali-

fications was improper. On the issue of

short-term residency, Petitioners argued

that the authorities have held that certain

people cannot be excluded from the popula-

tion base for determining apportionment as

a result of the nature of their employment.

The Court again requested Memoranda of

Law and, after submission, the Court passed

a Memorandum Opinion, dated November 1, 1977,

which called for a reapportionment df the

City of College Park, but indicated that the

City's only requirement was to reapportion

Districts Three and Five on the basis of

those students who, in fact, were register-

ed to vote and not based upon the actual

population of those Districts.

The City of College Park, pursuant to

the Circuit Court's Memorandum Opinion and

Order of November 15, 1977, submitted a

plan in which the apportionment base was to

be determined by including only registered

voters from districts heavily populated by

students but utilizing federal census data

for the remainder of the population. The

Court of Appeals held this plan unconstitu-

tional as violating the Equal Protection

Clause of the Fourteenth Amendment. The

Court decided that using different standards

to count students in different districts,

the City established impermissible classi-

fications without substantial justification.

As the result of this ruling, the

Defendant has submitted two alternative

plans. Plan A establishes an apnortion-

ment base determined on the basis of a

census, which would include ouly those re-

sidents of the City who can prove that

they have an intention to remain in the

City for an indefinite period of time. The

City sought penalties for failure to respond

to the questionnaire or for untruthful re-

sponses, of up to five hundred dollars or

imprisonment. However, the Circuit Court

found the questionnaire "both intrusive and

obnoxious." The Court, however, approved

Plan B. This alternative utilizes the list

of registered voters as the apportionment

base.

The Petitioners appealed andthe Court

of Appeals, issued a writ of certiorari.

The Court of Appeals affirmed the judgement

of the Circuit Court, thereby approving Plan

B.

ARGUMENT

It is well settled that population is

both "the starting point for consideration

and the controlling criterion for judgment

in legislative apportionment controversies."

Reynolds v. Sims, 377 U.S. 533, 567, 568

(1964). While numerous judicial opinions

have utilized imprecise and undefined terms,

such as citizens, citizen population, voters,

qualified voters or registered voters, a

brief consideration of the history of the

“one man-one vote" principle leaves no doubt

that total population must be the underpin-

ning of any permissible apportionment plan.

The one man-one vote principle is

grounded on the provision in the Constitu-

tion, Article I, Section 2, that represen-

tatives be chosen "by the People of the

several States" and should be "apportioned

among the several States .. . according

to their respective numbers." This has

been construed to mean that "as nearly as

is practicable one man's vote in a con-

gressional election is to be worth as much

as another's." Wesberry v. Sanders, 376

U.S. 1, 8 (1964).

The aforementioned constitutional pro-

vision was the essence of "the Great Com-

promise" of the Constitutional Convention

of 1787. The question of how the legisla-

ture should be elected formed the most

severe controversy of the Convention. The

Articles of Confederation had established

a loosely bound conglomeration of States,

without an independent executive or judi-

cial branch and with a Congress consisting

of a single house. Each State, without re-

gard to population or size, had one vote in

this legislature. Many of the delegates to

the Convention argued for a legislature

elected by the people. In support of this

position, James Madison stated that “if the

power is not immediately derived from the

people, in proportion to their numbers, we

may make a paper confederacy, but that will

be al1."2/ Delegate James Wilson said that

“equal numbers of people ought to have an

equal number of representatives . and

representatives “of different districts

ought clearly to hold the same proportion

to each other, as their respective constitu-

ents hold to each other. "*2/

Of course, the Compromise was that the

legislature consist of two houses; one in

which the States were to be represented, and

another in which people were to be repre-

sented.

1/ The Records of the Federal Convention of

1787 (Farrand Edition 1911) at 472.

2/ Id., at 180.

10

As the Supreme Court has stated:

The debates at the Convention make

at least one fact abundantly clear;

that when the delegates agreed that

the House should represent "people"

they intended that in allocating

congressman the number assigned to

each State should be determined

solely by the number of the State's

inhabitants. The Constitution em-

bodied Edmond Randolph's proposal

for a periodic census to ensure

“fair representation of the people.”

an idea endorsed by Mason as assur-

ing that "numbers of inhabitants”

should always be the measure of re-

presentation in the House of Repre-

sentatives.’ (footnotes omitted)

Wesberry v. Sanders, supra, at 13, 14.

The “one person-one vote” principle,

therefore, clearly requires that any con-

stitutionally permissible apportionment

plan must reflect substantial equality in

districts such that the weight of potential

votes are not impaired, debased or diluted.

Accordingly, where “population is submerged

as the controlling consideration in the ap-

portionment of seats in the particular

legislative body, then the right of all of

11

the State's citizens to cast an effective

and adequately weighed vote would be un-

constitutionally impaired." Reynolds v.

Sims, supra, at 581.

It is the contention of the City that

the adoption of the plan furthers its in-

terest in eliminating from the apportion-

ment base non-residents and transients who

have little or no interest in the affairs

of the City. It further argues that nei-

ther plan intentionally or otherwise dis-

criminates against any group.

In support of its position that re-

gistered voters constitute a permissible

apportionment base, the City places heavy

reliance on Burns v. Richardson, 384 U.S.

73 (1966) and Martin v. Venables, 401 F.

Supp. 611 (D. Conn, 1975). In Burns the

Supreme Court did, in fact, approve regis-

tered voter lists as a permissible appor-

tionment base. However, the City ignores

12

the basis under which the plan was approved.

First, the Court stated that the use of a

registered voter basis presents problems in

that such criteria depends on "the extent

of political activity of those eligible to

register and vote,"’ Burns v. Richardson,

supra, at 92. As such, it was found to be

“susceptible to improper influences by

which those in political power might be able

to perpetuate underrepresentation of groups

constitutionally entitled to participate in

the electoral process, or perpetuate a

“ghost of prior malapportionment." Further,

the Court found problems in fluctuations in

these lists caused by fortuitous factors.

For these reasons, the Court propounded a

limitation on the use of a registered voter

base. Such base may be used only when it

produces "a distribution of legislators not

substantially different from that which

would have resulted from the use of a

13

permissible population base." (Cmphasis

supplied.) Burns, supra, at 93.

The following statistics provided by

the City of College Park clearly indicate

that the. use of a registered voter base

would produce a distribution of legislators

substantially different from that which

would have resulted from the use of a per-

missible population base.

Popula-

Regis- tion

tered Base Total

Voters Census Students Popula-

District (1975) (1970) excluded tion

1 697 2214 2214

2 454 1753 1753

3 449 2031 3812 5843

4 431 2442 2442

5 580 2271 4635 6906

6 284 1949 1949

7 482 2098 2098

3 390 2759 2759

TOTALS 3817) =17,517 S447 =—25, 964

Accordingly, the Petitioners respect-

fully submit that the use of a registered

voter base does not produce substantially

the same results as would a proper

14

population base and is, therefore, consti-

tutionally impermissible.

Moreover, an equally important limita-

tion has been recognized concerning appor-

tionment plans in general and voter regis-

tration apportionment in particular. An

apportionment plan is constitutionally im-

permissible where it is designed to or

operates to minimize or cancel out the vot-

ing strength of racial or political elements

of the voting population. Burns v.

Richardson, supra.

Although the City of College Park as-

serts that the latest plans are neither

designed nor intended to operate to dilute

the voting power of on-campus students,

this assertion must be considered in light

of the City's previous ongoing efforts to

do just that.

The motivation of the City is reflect-

ed in the record as early as June, 1967.

15

At a City Council meeting, a proposed Re-

districting Resolution (67-R-3) was dis-

cussed. "Councilman Payne felt that col-

lege towns having a large resident student

population in proportion to their total

population would constitute an exception

to the Attorney General's Opinion which

permits the Bureau of the Census to enu-

merate resident students, living on campus,

in their college towns. He further felt

that including resident students in the

total population would cause insufficient

representation of year-round residents who

pay taxes to the City and are concerned

with its plan and problems. ... Council-

man Osborn spoke in favor of adoption of

the Redistricting Plan, noting that Uni-

versity students are peripheral to the

City's consideration regarding representa-

tion for the majority of residents .

The motion for adoption was then passed by

16

unanimous vote."

This debate on the issue clearly in-

dicated the City's intent. It seeks to

maximize the voting strength of non-stu-

dents at the expense of and to the detri-

ment of the students.

Further confirmation of the City's

aims exists by virtue of the various plans

submitted by the City. At first, the City

attempted to simpl. gnore students as

valid members of the apportionment base,

using federal census data from which it

subtracted the numbers of students living

on campus. Next, the City attempted to

utilize census data for all districts ex-

cept those districts that had substantial

student population. For those two dis-

tricts only registered voters were to be

counted in the apportionment base. Final-

ly, the City, believing that a registered

voter base might very well serve its

17

purposes, now seeks to establish the same

criteria as nondiscriminatory and as blind

to the nature and characteristics of the

population.

The City’'e apparent rationale for its

desire to minimize the voting power of stu-

dents reflects their apparent concern that

since students are assumed to have different

interests in the affairs of the City, they

would be inclined to vote contrary to the

wishes of the majority non-student members

of the community. The Supreme Court refers

to this practice as “fencing out." The

Court has stated that "fencing out” from

the franchise a sector of the population

because of the way they may vote is consti-

tutionally impermissible. "(T)he exercise

of rights so vital to the maintenance of

democratic institutions . . . cannot con-

stitutionally be obliterated because of a

fear of the political views of a particular

18

group of bona fide residents .

(Citations omitted). Carrington v. Rush,

380 U.S. 89, 94 (1965).

Furthermore, the good faith of the

City must be considered. In Kirkpatrick

v. Preisler, 394 U.S. 526 (1969), the Su-

preme Court held that limited population

variances are constitutionally permissible

only if they are unavoidable despite a good

faith effort to achieve absolute equality

or if substantial justification is shown.

In this case, the City's lack of good faith

is clearly evident. When it fit their pur-

poses, use of the federal census minus stu-

dents was deemed appropriate. When that

did not meet constitutional muster, a com-

bination of the census and a registered

voter requirement for students only was a-

dopted. When that was found to be consti-

tutionally inadequate, the latest means to

the same end was adopted. Further, the

19

Court in Kirkpatrick, supra, found insuf-

ficient justification in such factors as

the representation of distinct interest

groups, the integrity of county lines, the

compactness of districts, the population

trends within the state, the high propor-

tion of military personnel, college stu-

dents, and other non-voters in some dis-

tricts, or the political realities of legis-

lative interplay. For those reasons, the

Petitioner's respectfully suggest that the

submitted reapportionment plan, adopted

without good faith or satisfactory justi-

fication, are violative of the one man-one

vote principle and, therefore, are unconsti-

tutional.

Finally, it must be remembered that in

deciding apportionment cases, the fundamen-

tal nature and immortance of the vote in a

democratic society cannot be overemphasized.

It cannot be disputed that "the fundamental

20

principle of representative government in

this country is one of equal representa-

tion for equal numbers of people, without

regard to race, sex, economic status, or

place of residence within a state."

Reynolds v. Sims, supra, at 560-61. It is

clear that a citizen has a constitutionally

protected right to be represented and to

participate in elections on an equal basis

with others in the jurisdiction. The im-

pairment of the constitutionally protected

right to be represented and the right to

vote "touches a sensitive and important

area of human rights" and "involves one of

the basic civil rights of man." Skinner v.

Oklahoma, 316 U.S. 535, 536 (1942). "“Espe-

cially since the right to exercise the

franchise in a free and unimpaired manner is

preservative of other basic civil and poli-

tical rights, any alleged infringement of

the right of citizens to vote must be

21

carefully and meticulously scrutinized."

Reynolds v. Sims, supra, at 561-62.

In the instant case, an important

question of federal law has been decided in

a way in conflict with precedents establish-

ed by the Supreme Court.

Accordingly, the Petitioners respect-

fully submit that the Plans offered by the

City of College Park are unconstitutional

attempts to dilute and debase the right to

vote of a significant portion of the conm-

munity. For these reasons, a writ of

certiorari must issue.

22

CERTIFICATE OF ScCRVICE

I HZREBY CZRTIFY that a cony of the

foregoing Petition for Writ of Certiorari

was mailed, by first class mail, vostage

prepaid, this 13th day of October, 19382,

to Morris Topf, Attorney of Record for

the Respondent, at Topf & Zell, 7735 Olc

Georgetown Road, Suite 530, Bethesda,

Maryland 20014.

K Vek

nN. at oy a