[78 NJSuper Page 417] Plaintiffs Christopher Jackman, a resident of West New York, New Jersey (Hudson County), and Winfield Chasmar, Jr., a resident of Verona, New Jersey (Essex County), instituted this action "for themselves and on behalf of all other taxpayers, property owners and legal voters similarly situated" seeking, inter alia , an adjudication that the provisions in the New Jersey Constitution pertaining to the composition of this State's General Assembly and Senate violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the Federal Constitution. More
specifically, the plaintiffs allege that N.J. Const., Art. IV, § II, par. 1, which directs that the State Senate "shall be composed of one Senator from each county," embodies an invidiously discriminatory geographic classification which arbitrarily denies fair and adequate legislative representation to a majority of the voters in this State. The one county-one senator form of representation is alleged to disregard population, land, area and economic interests. Finally, plaintiffs claim in connection with the State Senate, that the senatorial districts envisioned by that article do not represent or reflect any rational or legally permissible state policy.
N.J. Const., Art. IV, § III, par. 1, provides that each county shall at all times be entitled to one representative in the General Assembly. Count two of the complaint alleges that this constitutes "a substantial and unconstitutional deviation from the total-population or total-voter standard required by the Fourteenth Amendment to the United States Constitution." The limitation of the total membership of the General Assembly to 60 persons, together with the guarantee to the smallest county that it shall have one member in the General Assembly, is said to debase and dilute the votes of individuals residing in the more populous counties and to subject them to taxation without representation.
In addition to the first two counts, the plaintiffs, in a third count of their complaint, ask the court to declare N.J. Const., Art. IX, as repugnant to the Fourteenth Amendment on the ground that since the voters may not propose amendments by either popular referendum or initiative -- Article IX provides, in substance, that all amendments to the New Jersey State Constitution must originate in either the Senate or General Assembly -- the plaintiffs and all individuals similarly situated have been arbitrarily deprived of an equal right to participate in changing the nature and form of their state government.
The defendants in this case are the county clerks of Warren, Sussex, Salem, Hunterdon and Cape May Counties, and the Secretary of State, the President of the Senate and the Speaker of the General Assembly of the State of New Jersey.
It was stipulated that in case of a vacancy or change in office the suit would be considered as one against the particular office or officeholder, as the case may be, at the time of judgment. They dispute at the outset the right of the plaintiffs to be awarded any affirmative relief in this action, stating, with certain unimportant exceptions as between the defendants, that the matter presented for disposition involves a "political question" over which the court has no jurisdiction; and that, in any event, there is no basis for concluding that the constitutional provisions under attack either reflect or foster an arbitrary impairment of voting rights.
In order to obtain an early resolution of the constitutional issues, the Attorney General of the State of New Jersey has moved to dismiss the plaintiffs' complaint for failure to state a justiciable cause of action or, in the alternative, for summary judgment pursuant to R.R. 4:58-1 et seq. Comprehensive legal memoranda have been submitted by the parties and an opportunity has been afforded all parties in interest to verbally present their respective positions.
The case sub judice represents, in part at least, a response to the United States Supreme Court's decision in Baker v. Carr , 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2 d 663 (1962), which, according to one observer, has "catalyzed a new political synthesis that was already straining, so to speak, to come into being." McCloskey, Foreword: "The Reapportionment Case," 76 Harv. L. Rev. 54, 57 (1962). Cf. Asbury Park Press Inc. v. Woolley , 33 N.J. 1 (1960). Since each of the issues in the case must, of necessity, touch on some phase of the Baker decision, no better or more logical starting point exists than a comprehensive scrutinization of that case which has produced a "short-term response which has been nothing short of astonishing." McCloskey, op cit. supra , at p. 56.
The plaintiffs in Baker were Tennessee voters who instituted an action in the Federal District Court under 42 U.S.C. , §§ 1983 and 1988 claiming that the Tennessee Apportionment Act of 1901 operated to arbitrarily deny them, and others similarly situated, equal protection of the laws as
provided for and guaranteed them by the Fourteenth Amendment of the United States Constitution. The substance of the plaintiffs' constitutional claim was that the Tennessee legislature had failed, since 1901, to reapportion decennially both of its houses despite, and in violation of, excess provisions of the Tennessee Constitution which prescribed apportionment of representatives according to the number of qualified voters in each county subject to a ten-year reapportionment adjustment, if necessary. The District Court found that the case presented a "question of distribution of political strength for legislative purposes," 179 F. Supp. 824, 826 (M.D. Tenn. 1961), and dismissed the complaint for (a) failure to state a claim upon which relief could be granted, and (b) lack of subject-matter jurisdiction.
The United States Supreme Court, in an opinion by Mr. Justice Brennan, reversed and remanded, holding that (1) the District Court possessed jurisdiction over the subject matter since the complaint involved a case arising under the Equal Protection Clause of the Federal Constitution; (2) plaintiffs-appellants had standing to challenge the Tennessee apportionment statute since they sought to protect or vindicate their rights to have an equal status with voters in all counties free from arbitrary state action; and (3) a justiciable cause of action was stated by the plaintiffs' claim that their voting rights had been arbitrarily impaired by virtue of the Tennessee legislature's failure to reapportion since 1901. Baker v. Carr, supra.
Subsequent decisions in other jurisdictions have intimated, relying upon a purported abstract holding of Baker v. Carr , that Baker requires that either or both houses of a state legislature must , to some extent, be apportioned on the basis of population. See, e.g., Toombs v. Fortson , 205 F. Supp. 248 (N.D. Ga. 1962). In my opinion, they have misconstrued the decision in Baker v. Carr. As was said most succinctly in Sobel v. Adams , 208 F. Supp. 316, 321 (S.D. Fla. 1962):
"It is not required that, in all events, either or both houses of a bicameral legislature must be apportioned upon a population basis of either exact or approximate equality of representation. It is only when the discrimination is invidious or lacking in rationality that it clashes with the Equal Protection Clause of the Fourteenth Amendment. Mr. Justice Clark suggests that there must be a plan that follows a rational policy. 369 U.S. 186, 258 [82 S. Ct. 691, 7 L. Ed. 2 d 663]. Mr. Justice Douglas, in his concurring opinion in Baker v. Carr , notes that 'Universal equality is not the test; there is room for weighting.' Mr. Justice Douglas cites Williamson v. Lee Optical Co. , [348 U.S. 483, 75 S. Ct. 461, 99 L. Ed. 563], for a statement of the rule that 'the prohibition of the Equal Protection Clause goes no further than the invidious discrimination.' 369 U.S. 186, 244-245, 82 S. Ct. 691, 724."
Plaintiffs argue that the Fourteenth Amendment does require consideration of population differentials re senatorial districts, relying, to a great extent, upon the decision of a three-judge Federal District Court in Sims v. Frink , 208 F. Supp. 431 (M.D., N.D. Ala. 1962). In Sims the court first noted that the Alabama Constitution required representation in both houses according to population. An amendment was proposed which provided for one senator from each of 67 counties which, said the court, "would serve to make the discrimination in the Senate even more invidious than at present." 208 F. Supp. , at p. 438. The court continued:
"The only conceivable rationalization of this provision is that it is based on political units of the State and is analogous to the requirement of the Constitution of the United States * * *. The analogy cannot survive the most superficial examination into the history of the requirement of the Federal Constitution and the diametrically opposing history of the requirement of the Alabama Constitution that representation shall be based on population. Nor can it survive a comparison of the different political natures of states and counties." (at p. 438, emphasis added)
In addition to the aforementioned misconception of Baker , it is of the utmost importance to emphasize that the court in that case did not attempt to create any new judicial standards for the lower courts to apply when faced with a claim of arbitrary state action in the field of legislative apportionment.
Mr. Justice Brennan stated, after finding that the question presented could be adjudicated by applying judicially manageable standards, that:
"Judicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to the courts since the enactment of the Fourteenth Amendment to determine, if on the particular facts they must, that a discrimination reflects no policy, but simply arbitrary and capricious action." (369 U.S. , at p. 226, 82 S. Ct. , at p. 715)
If anything can be legitimately drawn from the italicization of the word no in the preceding passage, it is that the Supreme Court reaffirmed the existing guidelines of the Equal Protection Clause which permit states a wide scope of discretion in enacting laws which affect some groups of citizens differently from others. The test is one of rational classification, and a discriminatory law "will not be set aside if any state of facts reasonably may be conceived to justify it." McGowan v. Maryland , 366 U.S. 420, 426, 6 L. Ed. 2 d 393, 81 S. Ct. 1356 (1961) (emphasis added). Cf. also, Baker v. Carr, supra (separate concurring opinions of Mr. Justice Douglas, 369 U.S. , at p. 241, 82 S. Ct. , at p. 722 and Mr. Justice Clark, at p. 251, 82 S. Ct. , at p. 727).
The first critical question raised by the defendants in this case is whether the plaintiffs' complaint is justiciable. The Attorney General argues that the plaintiffs' action is a direct attack upon New Jersey's republican form of government and as such it presents a "political question" which, even under Baker , remains non-justiciable. Defendant Farley contends that Baker only permits judicial cognizance of attacks upon or challenges to the exercise of state power within the framework of a given structure; and that it remains the law that any claim which cannot be adjudicated without reference to
the validity of the form of government with which a state entered the Union must fall as presenting a non-justiciable political question. The plaintiffs, in opposition to the defendants' attempt to have the case dismissed before the merits are reached, argue that their complaint embodies a challenge to the composition of state legislative bodies on the ground of invidious discrimination in violation of the Fourteenth Amendment and therefore a justiciable cause of action is stated and the courts must take jurisdiction. See Scholle v. Hare , 369 U.S. 429, 82 S. Ct. 910, 8 L. Ed. 2 d 1 (1962); W.M.C.A. v. Simon , 370 U.S. 190, 82 S. Ct. 1234, 8 L. Ed. 2 d 430 (1962).
While it is true, as the defendants point out, that the Supreme Court did not completely expunge the doctrine that political questions are non-justiciable, Baker did contribute significantly to an understanding of the relationship between future malapportionment suits, the Guaranty Clause of the United States Constitution (Art. IV, § 4), and the doctrine of "political questions." After noting that a suit which seeks protection of a political right does not ipso facto present a political question, the court noted that any malapportionment suit which is predicated solely on the Guaranty Clause would be futile. 369 U.S. , at pp. 217-218, 82 S. Ct. , at p. 710. In a like manner, litigants in such suits were cautioned that the Fourteenth Amendment basis for their action must not be inextricably enmeshed with political question elements which render Guaranty Clause claims non-justiciable per se. 369 U.S. , at p. 217, 82 S. Ct. , at p. 710.
Although this court agrees that there is a distinction between a challenge to a structure or form of a state government and a challenge to the exercise of state power within the framework of that structure, it does not follow that the distinction precludes a finding of justiciability in a case which is predicated upon a claim of invidious discrimination under the Equal Protection Clause. The challenge presented by the plaintiffs in this action does, in a sense, represent a challenge to New Jersey's form of government. It is such a challenge,
however, only because the alleged defect happens to be condoned by a state constitutional provision whose antecedents predate New Jersey's entry into the Union. See N.J. Const. (1776), Art. III.
The challenge, however, is not a direct one aimed solely at this State's governmental structure. Rather, it is an assertion of arbitrary state action in creating the framework of New Jersey's system of political representation, resulting in individous discrimination.
Acceptance of the defendants' argument would effectively foreclose any attack upon legislative representation within a given constitutional structure since it would be impossible to assail the method of classification without also assailing the chosen form of governmental organization. In my opinion, one senator from each county is a method of classification which, like any other, is and should be subject to judicial scrutiny directed toward the ascertainment of whether the given method reflects "no policy" and therefore offends the Equal Protection Clause of the Fourteenth Amendment. The fact that a constitutional provision is attacked, and not a statutory enactment, makes no material difference since the apparent trend is against judicial timidity in the area of voting rights where invidiously discriminatory geographic classification is alleged. Cf. W.M.C.A. v. Simon, supra. In short, "It is ludicrous to preclude judicial relief when a mainspring of representative government is impaired." Dyer v. Kazuhisa Abe , 138 F. Supp. 220, 236 (D.C. Hawaii 1956), reversed on other grounds and dismissed, 256 F.2d 728 (9 Cir. 1958).
Having found that the instant action involves a justiciable question, examination into the merits is now in order. Art. IV, § II, par. 1, of the New Jersey Constitution is attacked on the ground that it is a repository of invidiously discriminatory
geographic classification. It provides, I repeat, with respect to the State Senate that:
"The Senate shall be composed of one Senator from each county, elected by the legally qualified voters of the county, for a term [of four years]." (Emphasis added.)
N.J. Const., Art. IV, § III, par. 1, which deals with the General Assembly states:
"The General Assembly shall be composed of members elected biennially by the legally qualified voters of the counties [for a two-year term]. The members of the General Assembly shall be apportioned among the several counties as nearly as may be according to the number of their inhabitants, but each county shall at all times be entitled to one member and the whole number of members shall never exceed sixty. The present apportionment shall continue until the next census of the United States shall have been taken. Apportionment of the members of the General Assembly shall be made by the Legislature at the first session after the next and every subsequent census, and each apportionment when made shall remain unaltered until the following census shall have been taken." (Emphasis added.)
It is well to point out, initially, that while a presumption of validity attends state constitutional provisions, see, e.g., W.M.C.A. v. Simon , 208 F. Supp. 368, 379 (S.D.N.Y. 1962) (on remand), even these provisions will be struck down as violative of the United States Constitution where the facts so warrant. See, e.g., ...