Wendler v. Stone
350 F. Supp. 838
S.D. Fla.
1972
Check Treatment

*1 Count II on Bull v. United counterclaim relied That case States, attorney’s expended 247, 261, asks for fees in an 55 S.Ct (1935), re There is no basis for turn case. such which in L.Ed. 1421 type Ringgold, an award of case. v. 33 U. lied on United States 163-164, (8 L.Ed. Pet.) S. Plaintiff’s motion to strike and dis- Macdaniel, v. and United States miss the counterclaim as is denied 16-17, (7 Pet.) 1, L.Ed. 587 granted Count I and as to Count II. cases involved a of those None the instant case. action as does tort States, supra, noted Bull v. United (7 Wall.) Siren, 74 case of The in which the 19 L.Ed. said: although cannot direct suits But al., Plaintiffs, James P. WENDLER et against States,

maintained United against property, yet, when or their (Dick) STONE, The Honorable Richard suit, the they institute United States Secretary of State of the State exemption so as far waive their Florida, Defendant. presentation by the defend- allow a legal Joseph set-offs, equitable, to PEREIRA, Jr., Plaintiff, ant A. property the extent of the demand They . claimed. . . then stand al., Reuben O’D. et Defendants. ASKEW proceedings, such with reference to 72-923, Civ. A. Nos. 72-928. claimants, rights of defendants Court, United States District precisely private suitors, except Florida, S. D. they exempt from costs Division. Miami against them, from affirmative relief Aug. 18, 1972. beyond property in the demand or con- troversy. given That affirmative relief can be sovereign up to the amount of sovereign’s claim was also in a noted involving, case,

case as does the instant bridge

a collision state-owned between a ship.

and a The Fort Fetterman Highway Depart-

South Carolina State

ment, (4th 1958), 261 F.2d Cir.

modified, (4th 268 F.2d 27 Cir. In the instant case

prays $65,684.13 repairs for for to its bridge. In Count I counterclaim prays $9,905.44 damage ACL for barges plus its interest and costs. In prays Count II $7,500 the de- fense previously-mentioned case in the Eastern Louisiana, District

plus interest and costs. Neither greater

these counts asks for an amount plaintiff’s prayer.

than This court

finds that neither count ACL’s coun-

terclaim should be dismissed on ground immunity of defense. *2 72-390,

Senate Bill Ch. Florida (1972), Laws came before a hearing pending court for motions dismiss. Based a determination justicia- complaints that the to state fail action, majority ble causes of of the court has decided that the motions to granted. dismiss must be al., plaintiff, Askew, In Pereira v. et Repub- “an announced candidate for the lican nomination” in 15th United Congressional District, contends States dividing that the line the 14th between po- and 15th districts was the result of designed en- litical political party. the interest of one hance He also that the cities of Coral Miami cohesive Gables and Beach are cultural, their own subdivisions with economic, political identities. The of the in the redistrict- bisection cities allegedly deprived these entities political “their former and habitual ties.” Stone, Wendler,

Plaintiffs et al. v. registered residents and voters Miami, Beach, Miami and Coral cities Gables,

complain of lines separating from the the 13th district These the 14th from the 15th. 14th and Korschun, Miami, Fla., Robert S. large allege, they several divide plaintiff Pereira. weight “diminishing cities, thus Magill, Stephens, Edward L. Ma- residents influence votes gill, Sevier, Dixon, Thornton & Dix- argue They redis- that the said cities.” on, Mitchell, Miami, Fla., Lane & tricting invidious discrim- constitutes an Holtman, Wendler, George, political, eco- ination Martin, Wolper. Wisenfeld and nomic, groups in the named Shevin, Atty. Gen., Robert L. and Jer- Allegedly lines cities. ry Oxner, Atty. Gen., Dept, E. Asst. political “gerrymandered” for the were purposes Legal Affairs, Tallahassee, Fla., for de- securing of in- re-election fendants. or election of cumbents candidates party. DYER, the mo- At the Judge, Before same Circuit and AT- dismiss, plaintiffs ROETTGER, Judges. disavowed tions to KINS man, malapportionment one vote one para- challenge might ORDER into GRANTING MOTIONS read TO complaint. graph DISMISS It is con- of their redistricting created ceded that the PER CURIAM. virtually equal population. tricts cases, challenge These both of which by constitutionality, equal initial issue raised under protection justiciability clause Fourteenth eases is redistricting challenge Amendment, al recently of Florida’s enact- congressional provision, legedly ed motivated would lead under the Fourteenth Amendment. We considerations. Plaintiffs “political agree into a new with that determination. the federal courts density, that of thicket” of unmatched v. Stone in Wendler Plaintiffs political gerrymandering. As discussed argument. however, present, a second Carr, Baker v. complaint gravamen ais of their non- “[t]he challenge economic,po- to the division *3 political question justiciability is of a groups litical, ethnic, within and social separation primarily function of the cities, the senior such as the affected 210, powers.” 82 S.Ct. at 706. Id. at argued It Beach. is citizens Miami criterion, here, applicable is critical One alleged in- reduces the that such division to formulate a court is asked that the interests, as of the of such fluence vote manageable judicially policy “for which group, political process. in the 226, lacking.” 82 Id. standards at 715. S.Ct. nonjusticiable. This likewise claim is end- refutation. An It carries its own highly impractical to ask a court It is groups communi- list of with such a less given not a con to determine whether or covering ty interest, infinite num- an gressional any par plan district favors geographic combinations, could be ber prepared. Voting political party. statistics ticular sharing persons in- an Those by plain elections, upon past relied unlikely one would terest on be tiffs, grossly unreliable when can be questions. on all to concur in their views prognostication. More disturb used those A court asked to accommodate ing request district court that the is convergent, diver- sometimes sometimes equal to the then redraw the boundaries gent, certainly cannot look to interests advantage complaining ly political of the managea- any judicially discoverable might subject party. This the court guidance. standards ble “charges gerryman judicial political dering.” F. v. that admitted to the Court Counsel per 48, (S.D.N.Y.), Supp. cur aff’d satisfying plans, many all 901, 1696, iam, L. 90 S.Ct. 398 U.S. man, requirements, one one vote drawing (1970). The task Ed.2d hypothetical possible. In such congressional within district undoubtedly plans, lines could Carr, supra., Wes of Baker confines encompass certain al- drawn so as be 1, berry Sanders, groups. legedly interest (1964), and their 11 L.Ed.2d 481 would, however, exclude or di- plan Each progeny, appropriately left for state is groups. The interest vide certain legislatures. championed futility of the standard readily apparent. plaintiffs is three-judge court, without One referring justiciability, that has held however, importantly, More political gerrymandering representa view, equalization our do not state a claim under the United constitutionally re is not tion demanded quired. States relief Constitution which Supreme of the The decision granted. WMCA, could Inc. v. Lo Chavis, 403 U.S. Court Whitcomb v. menzo, (S.D. F.Supp. 916, 925-926 curiam, 1965), per aff’d N.Y. principle (1971), clearly establishes (1968). S.Ct. groups no constitu interest that Harlan, concurring, late Mr. Justice representation in guarantee of tional Supreme only wrote legislative indicated The court halls. expressly Court. He did so to reaffirm these, that, where in cases such as alleged principle implicitly only is constitutional defect Court weakening approved per interest affirmance, of an in its curiam envisioned strength, i.e., partisan gerrymandering than may group’s political rather subject alleged deprivation individu- not of an to constitutional attack ROETTGER, Judge (dissent- right vote, no al’s ing). Indeed be sustained. claim can approve explicitly refused to court before this group “any distinc- principle that days prior court was held four fil- leg- represented in tive must be interests seeking deadline for candidates elec- enough to if it numerous islative halls Rep- tion to the United House States repre- one seat and command at least Although resentatives. the defendants living majority in an area suffi- sents judg- summary had filed a motion for single- ciently compact to constitute argu- day hearing, ment Chavis, member district.” Whitcomb ment before the was limited to the 124, 156, 91 defendants’ motion dismiss. 29 L.Ed.2d 363 rejects correctly the al- legations Pereira who as- Whitcomb, only As view we serts the districts were *4 allegations presented with are where we unconstitutionally drawn the lo- because voting strength of a of of a dilution the perimeters cation of the district was mo- recognizable minority of race or because partisan political by tivated considera- origin panoply country does the broad of However, in tions. Wendler Stone protections of War Amend of the Civil plaintiffs asserted at the that White, by ments, Mr. Justice referred to complaint their was not based on a right very operate limited to secure a charge partisan political gerryman- Wright representation. Rockefell Cf. dering but, rather, that there a con- was er, L.Ed.2d gerrymander stitutionally impermissible distinguishing (1964). feature drawing boundary upon based lines so specif conclude, cases, the in we is such (1) it that constitutes invidious dis- Amendment the ic concern Fifteenth against the crimination residents rec- rights voting citizens. of black for the ognizable political, and identifiable eco- Douglas: by Mr. Justice As stated groups; (2) nomic, it prevent racial It is that if we said against the residents of the criminates pre- today, must we Beach, Miami, Miami Hialeah cities of special gerrymandering of vent dividing polit- these and Coral Gables tomorrow, group it whether interest unnecessarily; ical subdivisions ideological. economic, social, I be neither are the districts agree. has a do not Our Constitution contiguous. nor special it to vot- thrust when comes ing; says the Fifteenth Amendment Stripped its right not shall the of citizens vote suit political gerrymandering, Pereira’s ‘race, ‘abridged’ col- on account of charges that the paragraph 10 in also or, previous of servitude.’ condition Beach and Miami cities of Coral Gables legisla- arbitrarily by the divided 124, 180, Chavis, Whitcomb v. drawing lines be- the ture in 1858, 1888, 29 Fifteenth Fourteenth tween the (1971) (concurring part in and dissent- Congressional Districts. part). special in does thrust This compel not the courts intervene for I with the concur perpetuation the rec- no there constitutional is ognizable partisan interests. support that resi first claim Wendler’s “ Accordingly [recognizable ordered and ad- and] is dents of groups” judged economic, political, motions to dis- and ethnic that defendants’ granted. invidiously complaints miss in discriminated are have been redistricting plan. preju- against by Whit the causes dismissed with Chavis, dice for failure state comb granted. see But upon which relief can claims County, F.2d 455 defendants that v. Adams assert mathe- Howard (5th precision in matical the distribution at 457 Cir. population in the district obviates In a con- cases claimed both charge constitutionally impermissible stitutionally impermissible gerrymander gerrymandering. Among many the bas- unnecessary the division based given by in the es State Missouri County, Florida. cities within Dade Kirkpatrick having not nu- achieved Only complaint the di- Wendler’s assails among parity merical its Hi- the cities of Miami and vision of the districts integrity maintain was desire Four- aleah between the Thirteenth and of certain subdivi- Congressional Districts, both teenth sions, namely, county However, lines. complaints attack division of cit- Kirkpatrick rejected the ies of Miami Beach and Coral Gables Congressional redistricting plan solely arriving lines between pari- not it did afford numerical because the Fifteenth Con- Fourteenth and appar- ty to districts. Defendants gressional The latter district Districts. ently preci- once feel that mathematical ba- is state and the southernmost allocating has sion been achieved Keys sically comprises the Florida among districts, population re- County. portion of Dade southern districting immune from attack. percent that 60 Plaintiff Pereira gone Supreme Court never (namely, 15,500 has population vot- Kirkpatrick it ers) Gables, far. In noted city Coral *5 it the Missouri admitted that Miami, State of north of lies south of was moved political transferred “entire boundary could have two dis- the line between the population regis- of be- (21,000 subdivisions known percent tricts while 50 contiguous and this districts” voters) population tween of of Miami tered the produced districts much have “would remainder Beach was severed from the equality.” at brought city closer numerical Id. of south and west the and 531, Congressional at 1229. 89 S.Ct. Dis- into the Fifteenth trict. Early reap- in this of cases on decade redistricting plans, portionment half Miami is con- The south Beach the and tiguous Sims, Supreme Reynolds Fifteenth with the rest the in Court only by crossing 533, 1362, 12 U.S. Biscayne Bay only (legislative reapportionment), and means strip land on a inclusion of narrow stated: Biscayne Bay the the until west bank districting, without Indiscriminate larger geographi- district into its widens any regard subdivision mainland. cal on the Florida base South natural or historical may the may notice1 taken Judicial open invi- little more than an basically occupies fact that Miami Beach gerrymandering. tation to separated from a island narrow and 578, Id. at 84 S.Ct. at 1390. every city by ex- with water the apportionment Recently, in decision an ception boundary line mile a one-half supervisors, involving county board end, it at its northern shares with which challenge Supreme rejected a the Court city the of Surfside. apportionment plan main- which to an There is no of mathematical claim integrity of line tained the among parity of the districts. voters and allocated towns constituent five Relying Preisler, Kirkpatrick de- the towns the board to members spite percent 11.9 deviation of 22 L.Ed.2d a total S.Ct. paucity regrettable 1. docu view of is a introduced There none were question the court’s had considered and Plaintiffs mentation the record. limited ruling. but exhibits with at them announced appor equality Wells v. from numerical Mundt, (S.D.N.Y.1970), plan. held that a 403 U. 56 which tionment Abate v. justiciable question presented by was S. the claim that the districts lacked com- contiguity. 55 and Id. at Presumably, Supreme views Court legal Various asserted scholars have question as a requirement of com- there should be Wright holding in v. Rockefell- since the contiguous pact and districts.3 er, 11 L.Ed.2d solely upon ab- was based Plaintiff has asserted sub- Wendler proof. also v. Rocke- sence of See is- stantial constitutional (S.D.N.Y.1970).2 feller, F.Supp. 48 contiguity. compactness Re- sue prejudice with The motion dismiss may gardless be for difficult how granted as to this claim should not be proof plaintiffs to muster sufficient either case. support of their com- Moving claim, Wendler’s third plaint, motion dismiss defendants’ 1, 2 Article in Count I that § assertion granted prejudice not be should Congres- requires of the Constitution juncture. compact con- districts to be sional Supreme Court and the lower tiguous substance. is without entering from Courts shied Federal rejected political thicket and have However, in Count II Wendler asserts impermissible gerryman- contentions equal protection clause of plain- dering there a lack of a when was requires Fourteenth Amendment Con example, ly For bench mark. discernible compact gressional districts to be accepted Supreme numeri- Court has contiguous. Supreme has af among parity as a con- the districts cal firmed a lower court ordered and the matter of stitutional legislature to draw district bounda mathematically easy one parity is a only numerically equal, ries not to be extreme, the At the other determine. contiguous well. *6 rejected gerry- the claims of courts F.Supp. 984, Wells 273 partisan, political mandering basis on a curiam, (S.D.N.Y.1967); per 991 aff’d discriminating or the claims economic, 88 19 L.Ed.2d groups social, be- One held court virtually impossible to focus it is cause constitutionally plan in in these a discernible valid the basis of lack of com both areas. contiguity and and a failure parity. achieve Drum v. numerical do standards exist Discernible Seawell, (M.D.N. F.Supp. the districts are not claim that C.1966). dissenting opinion See also the McKay, seq. (1963) ; and 300 et majority opinion 2. The v. Rocke- Reapportionment Retro Decisions: The obviously charge po- feller holds Prospect, spect A.B.A.J. presents jus- Gerrymander litical Edwards, The question. dissenting ticiable points Man, Vote”, 46 One N.Y.U.L.R. “One rejects holding requirement this out and (1971). This is embraced goes find by many but that a as See well. state constitutions presented Digest Edwards, Index of State Constitu compactness Additionally (2d claim that districts lack ed. tions contiguity. Reapportionment at 55 and Act of 31 Stat. 734 56, respectively. Congression (1901), specifically required contiguous, compact and al districts contain, Celler, Congressional 3. Hon. Emmanuel nearly practicable, as Apportionment -Past, Present and Fu — re of inhabitants. These number ture, Contemp.Prob. 17 Law & quirements were continued The Act (1952) ; Hess, Weaver & A Procedure drop Development Non-partisan Districting: 37 Stat. pres- Computer Techniques, subsequent ped Yale L.J. enactments. contiguous4 in the claim arbitrary unnecessary and there was an subdivisions, subdividing es-

pecially there is an In this case cities.

intertwining of claims. required

Although of time the factor prior quick of this matter decision Congres- filing for the 1972 deadline election, redis- sional tricting presumably

plan be with us will years. Consequently, I ten next respectfully the view dissent from

must granting majority defendants’ permitting motion to without dismiss pleadings to amend their fur-

ther.

June DRUMMOND

Phillip Spero SPERO and Restaurant Supply, Inc.

Civ. A. No. 6388. Court,

United States District D. Vermont. Oct. Davis, Cleary, E. David L. and Richard

Barre, Vt., plaintiff. Meaker, Meaker, & P. Adams

John Waterbury, Vt., for defendants. AND ORDER OPINION *7 Judge. COFFRIN, District brought court, In her action to this the defendants slanderously falsely her of accused committing crime of embezzlement. deny allegation and with Defendants the com- their answer move to dismiss alleged ground plaint on the privileged com- if made was a slander prosecuting munication addressed to alleged attorney in connection plaintiff. Sub- committed crime measuring com 4. formulae for ent See various law is found at 46 Stat. 26 (1958) ; listed n. 3 the articles as amended 2a see § U.S.C. dissenting opinion, Broom, generally v. Rocke Wood feller, L.Ed. 131