Long v. Avery

251 F. Supp. 541
CourtDistrict Court, D. Kansas
DecidedFebruary 23, 1966
DocketCiv. A. W-3220
StatusPublished
Cited by14 cases

This text of 251 F. Supp. 541 (Long v. Avery) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Long v. Avery, 251 F. Supp. 541 (D. Kan. 1966).

Opinion

TEMPLAR, District Judge.

This case was commenced June 26, 1964 by plaintiffs, as a representative action in which they seek on behalf of themselves and others similarly situated, as citizens of the State of Kansas and as duly qualified voters in the State, a determination that the provisions of Chapter 1 and Chapter 2, Laws of Kansas, Special Session of 1964 are unconstitutional -and therefore invalid apportionment statutes providing for the election of members of both the Kansas State Senate and the Kansas House of Representatives. The defendants are the designated officers of the state and counties of Kansas charged with the responsibility of securing to the citizens of Kansas the equal protection of the laws and the equal right to vote as secured by the Constitution of the United States.

The plaintiffs at the time of filing their complaint in this court sought injunctive restraint against the enforcement of the state statutes, the constitutionality of which was being challenged, *545 and a further injunction against action of state officers charged with the duty of carrying them out. Upon consideration of the relief sought by plaintiffs, this statutory three-judge court was duly convened (28 U.S.C. §§ 2281, 2284) by order dated July 15, 1964 of the Chief Judge of the Tenth Circuit, United States Court of Appeals. There is no, question of the jurisdiction of the Court or the propriety of any of the parties. The parties have stipulated to the facts and such facts constitute the entire evidence to be presented to the Court in this case.

The issues submitted to the Court for determination under the pre-trial order are as follows:

1. Do the provisions of the Kansas Constitution and Statutes providing for the establishment of both Houses of the Kansas Legislature violate the Due Process and Equal Protection clause of the Fourteenth Amendment of the Constitution of the United States?

2. Is the decision in Harris et al. v. Shanahan et al., 192 Kan. 183, 387 P.2d 771 (1963); 192 Kan. 629, 390 P.2d 772 (1964) res judicata, on the question of the validity of the apportionment of the Kansas Senate?

3. Should this Court abstain from hearing the case at the present time ?

4. Are both Houses of the Kansas Legislature, as presently apportioned, in violation of the rights guaranteed plaintiffs under the Constitution of the United States?

The plaintiffs have asked that the Court declare unconstitutional Article 2 Section 2 of the Constitution of the State of Kansas which provides in substance that each county in which at least two hundred and fifty legal votes were cast in the preceding general election shall have at least one representative in the Kansas House of Representatives. Plaintiffs have also asked that this Court hold and determine that under the Equal Protection clause of the Fourteenth Amendment to the United States Constitution, the apportionment of seats in the Kansas House of Representatives as provided by Chapter 2 of the Laws of Kansas, Special Session of 1964, is unconstitutional and invalid.

While this action was pending before the Court, the Supreme Court of Kansas filed an opinion in an original proceeding in Quo Warranto brought before that Court, Harris v. Anderson, 194 Kan. 302, 400 P.2d 25, wherein it determined and adjudged that Chapter 2 of the Session Laws, Special Session of 1964 provided for an impermissible apportionment not in accordance with the standards of equal apportionment required by the Equal Protection clause of the Fourteenth Amendment of the Federal Constitution and holding the statute so enacted by the Kansas legislature to be invalid. 1 The Kansas Court at the same time expressed the belief (p. 312, 400 P.2d 25) that the legislature would enact an apportionment act which would conform with constitutional requisites in ample time for the Secretary of State to furnish to the representative districts hereafter established, the information required to hold a valid election of membership in the Kansas House at the elections to be held in 1966.

In this belief we concur and at this time we feel that the Kansas legislature must be given the right to enact, at its earliest opportunity, a valid apportionment of the Kansas House which will comply with the Constitution of the United States.

Notwithstanding there remains to be determined the question of whether Chapter 1, Laws of Kansas, Special Session of 1964, is invalid because under the admitted and stipulated facts, including the population statistics of Kansas plaintiffs contend that there exists inequality of apportionment in the Kan *546 sas Senate not constitutionally permissible under the Equal Protection clause of the Fourteenth Amendment to the United States Constitution.

SEVERABILITY OF STATE CONSTITUTIONAL PROVISION

Section 2 Article 2 of the Kansas Constitution provides in substance that the number of senators shall be regulated by law, but shall not exceed forty senators. 2

This constitutional direction has been implemented from time to time when the Kansas legislature has enacted apportionment statutes apportioning forty senate seats within the state, the last enactment being Chapter 1, Session Laws of Kansas, Special Session of 1964. This is the Act now under attack in this case.

The Kansas Supreme Court held 3 that those portions of Article 2, Section 2 and Article 10, Section 1 of the Constitution of Kansas which provide that each organized county shall have at least one representative regardless of population, are rendered inoperative by the Equal Protection clause of the Fourteenth Amendment to the Constitution of the United States, but in so holding the Kansas Court did not nullify the portion of the state constitution providing that:

“The number of representatives and senators shall be regulated by law, but shall never exceed one hundred and twenty-five representatives and forty senators.” 4

Plaintiffs argue that the entire state constitutional provision establishing a bicameral legislature is nonseverable and that the entire constitutional foundation for legislative apportionment in Kansas is void and must be so declared by this Court.

If the entire state constitutional provision is to be declared void for the reason that a portion of it violates the Equal Protection clause, this must be so for the reason that the portion of Section 2 Article 2 set forth above is not severable from the remaining provisions of the Section.

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Bluebook (online)
251 F. Supp. 541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/long-v-avery-ksd-1966.