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PENNSYLVANIA EX REL. SPECTER v. LEVIN

May 8, 1973

COMMONWEALTH OF PENNSYLVANIA ex rel. Arlen SPECTER, District Attorney of Philadelphia County, Individually and in behalf of the citizens of the County of Philadelphia and all other persons similarly situated, et al.
v.
A. Leo LEVIN, Chairman et al.



The opinion of the court was delivered by: VANARTSDALEN

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?"

 A reading of the present complaint shows that these same issues, and no others are sought to be re-litigated. Paragraph 13 of the complaint states that the questions of fact and law, common to all members of the alleged class are "whether the failure to give adequate and equal notice to all citizens as well as the failure of the Commission to enact a reapportionment plan in conformity with the requirements of compactness and contiguity violates the Constitution of the United States, more particularly the Fourteenth Amendment thereof. . . ."

 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, ...


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