The opinion of the court was delivered by: VANARTSDALEN
Plaintiffs, in this "Civil Rights Class Action" seek to have declared unconstitutional, as violating the Fourteenth Amendment of the United States Constitution, the Final Reapportionment Plan of the Pennsylvania State Legislative Reapportionment Commission, filed on December 29, 1971. The "Plan" established the geographical boundaries for the Pennsylvania state senatorial and legislative districts. The identical federal constitutional issues were litigated by the same parties through the state courts. The Supreme Court of Pennsylvania in a per curiam decision dated February 7, 1972, held that the challenged reapportionment plan was "in compliance with the mandates of the Federal and Pennsylvania Constitutions" and that the plan "shall have the force of law." An appeal from that decision was filed on May 5, 1972 in the Supreme Court of the United States. Appellant was "Arlen Specter, Individually and as District Attorney of Philadelphia County." On June 5, 1972, the Supreme Court of Pennsylvania filed a signed opinion. Both the per curiam and the signed opinion are reported under Commonwealth ex rel. Specter v. Levin, 448 Pa. 1, 293 A. 2d 15 (1972). On October 10, 1972, the Supreme Court of the United States dismissed the appeal "for want of substantial federal question." The decision is reported under Specter, District Attorney of Philadelphia County v. Tucker, Secretary of the Commonwealth, 409 U.S. 810, 93 S. Ct. 44, 34 L. Ed. 2d 65 (1972).
Under the rule of England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S. Ct. 461, 11 L. Ed. 2d 440 (1964), we find the dismissal of the appeal by the United States Supreme Court to be dispositive of the present action.
Jurisdiction of this action is asserted under 42 U.S.C. §§ 1983, 1988; 28 U.S.C. §§ 1331, 1343, 2201, 2202, 2281 and 2284, and the Fourteenth Amendment of the United States Constitution. Pursuant to 28 U.S.C. § 2284, a statutory three-judge court was convened. A motion to dismiss on behalf of all defendants was filed, which motion this court held in abeyance by order filed June 22, 1972, pending decision of the United States Supreme Court in the appeal of Specter v. Tucker, supra. Following the decision of the United States Supreme Court on the appeal, the defendants in the present action filed a supplemental motion to dismiss. This court has received briefs of counsel and heard oral argument on the motion.
There is no doubt that the federal constitutional issues raised and litigated in the State Court proceedings are identical with those raised in the present action.
In the appeal to the United States Supreme Court, the statement of the questions presented in plaintiffs' brief was as follows:
I. Did the publication of the preliminary reapportionment plan in Philadelphia County just four days prior to the cessation of the period to file exceptions to the plan violate the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution as it gave the citizens of Philadelphia County an inadequate and unequal period to evaluate, analyze and prepare criticisms of the plan?
II. Does the revised or final reapportionment plan filed on December 29, 1971 by the Pennsylvania State Legislative Reapportionment Commission violate the equal protection clause of the United States Constitution in that it establishes districts on the basis of impermissible political considerations and not composed of compact and contiguous territory?
III. Does the revised or final reapportionment plan filed on December 29, 1971, by the Pennsylvania State Legislative Reapportionment Commission violate the equal protection clause of the Fourteenth Amendment of the United States Constitution in that the Commission did not make a good faith effort to create [districts] of equal population "as nearly as practicable?"
Paragraph 18 of the complaint, under the heading of "Factual Allegations," and subheading "Publication of Notice" sets forth the facts concerning the public notice given in Philadelphia County of the proposed plan. The complaint asserts that the four day notice "arbitrarily denies citizens of a particular county the Equal Protection of the Fourteenth Amendment of the United States Constitution. . . ."
Paragraph 19 of the complaint, subheaded "Redistricting", alleges that the Commission "failed to abide by the Federal and Pennsylvania constitutional requirement of compactness and contiguity" in establishing the boundaries of the districts. Paragraph 20 states that the plan "establishes a crazy quilt, completely lacking in rationality, and thus invalid under the Fourteenth Amendment of the United States Constitution."
Paragraph 21 of the complaint states: "Moreover, in establishing such a reapportionment, the Commission violated the requirement of equal population."
Thus, both the State Court action appealed to the United States Supreme Court and the present action presented three identical federal constitutional issues. These issues may be summarized as (1) inadequate notice of the proposed plan; (2) politically motivated "gerrymandered" districts that were neither compact nor contiguous, ...