Coleman A. YOUNG, Individually and as Mayor, City of Detroit, and City of Detroit, a Municipal Corporation, Plaintiffs-Appellees, v. Philip M. KLUTZNICK, Secretary of Commerce of the United States, and Vincent P. Barabba, Director, Bureau of the Census, Defendants-Appellants.
Nos. 80-1751, 81-1027
United States Court of Appeals, Sixth Circuit
Argued Feb. 12, 1981. Decided June 15, 1981.
652 F.2d 617
James A. Tuck, Robert A. Sedler, Wayne State Univ. Law School, Joseph Baltimore, Asst. Corp. Counsel, Detroit, Mich., for the City of Detroit.
Jim Leach, U. S. House of Representatives, Washington, D. C., for amicus curiae.
James E. Moore, Deputy Atty. Gen., Richmond, Va., for amicus curiae Commonwealth of Virginia.
Stephen C. Chapple, General Counsel U. S. Conference of Mayors, Washington, D. C., for amicus curiae U. S. Conference of Mayors.
George W. Crockett, Detroit, Mich., for plaintiffs-appellees in No. 81-1027.
Before KEITH, MERRITT and MARTIN, Circuit Judges.
MERRITT, Circuit Judge.
In this suit by the City of Detroit and its Mayor against the Census Bureau Director and the Secretary of Commerce, the District Court found that the final 1980 census figures would understate the black and hispanic populations nationally and in Detroit by a statistically significant but undetermined figure, unless adjusted. After finding in advance of the completion of the census that such an undercount would occur, the District Judge held that certification and publication of the figures without adjustment would violate the provisions of the Constitution requiring an accurate decennial enumeration of the population for the purpose of apportioning Congressional representation.1 He construed the Census Act as permitting the use of such an adjusted set of census figures for purposes of determining Congressional representation.2 He ordered that defendants withhold certification of the census figures to the states and the President, a certification required by statute,3 until defendants devise and report to the Court for approval a statistically defensible means of adjusting the census figures to include the uncounted segments of the black and hispanic populations.
I. STATEMENT OF THE CASE
A. The Undercount Estimated on the Basis of Studies of the 1970 Census
The essential facts are not in dispute. Plaintiffs concede that the Census Bureau in 1980 made a conscientious effort to conduct an accurate head count of a diverse nation of approximately 225 million people using sound demographic methods developed over many years with the advice of leading scholars in many fields. Plaintiffs do not claim that the Census Bureau has discriminated against any class, blacks, hispanics, or others, or any town or region, Detroit or any other place, in the methods used to conduct the head count. On the contrary, all parties agree, including plaintiffs and their experts, that at great cost the Census Bureau, upon the direction of the President and the Congress, has taken new and creative steps during the 1980 census to find and count disadvantaged groups.
No claim is made that upper and middle class blacks and hispanics are undercounted in comparison with whites of the same economic class. Rather, plaintiffs have demonstrated the undeniable fact that for a complex set of reasons4 it is more difficult to count the poor and the uneducated, whether black or white, than the middle class and the well-to-do. Plaintiffs rely on Census Bureau studies of previous census figures that show that, as a group, more blacks are missed than whites because, as a group, blacks are more disadvantaged.5 Plaintiffs’ key witness, Dr. Philip M. Hauser, a former director of the Census Bureau and chairman of the University of Chicago Sociology Department, stated the basic reason for previous undercounts of the black population: “It is not a question of color; it is not the difference in color that makes them hard to count. It is that whole cluster of characteristics associated with color which stands as a proxy for this cluster of characteristics” (App. 405).
The demographic and statistical theory that blacks are necessarily undercounted at a substantially higher rate than whites is supported by comprehensive studies of the 1970 census.6 In that census 203 million people were counted, 178 million of whom were identified as white and 23 million of whom were identified as black. Through a combination of survey methods, the Census Bureau now estimates that the 1970 census undercounted the black and white populations as shown on this graph:
At the time of the trial of this case in August 1980, the Bureau had not completed any interim or final figures for the new census because the tabulation of the census returns was still in process. The parties were unable, therefore, to estimate the 1980 undercount. One of plaintiffs’ experts testified that “we don‘t know anything about the undercount in the 1980 census except some very broad assertions and expectations that the racial undercount will not disappear ....” (Dr. Taeuber, App. 638). Another expert of plaintiffs testified that no one could predict whether the 1970 undercount would be repeated in the 1980 census: “This doesn‘t mean that this (the 1970 undercount estimate) will be what happens in 1980. I don‘t know, I repeat, nor does anyone else” (Dr. Hauser, App. 478).
The Census Director and other officials testified in detail at the trial about the procedures used and the improvements made in conducting the 1980 census. They predicted hopefully that the added efforts would reduce the undercount. They explained that they had made earlier predictions, based on demographic analysis, that the final 1980 head count would be approximately 222 million and that the undercount would be approximately 5 million, or around 2%. They explained the difficulty and time consuming nature of arriving at a reliable estimate of the undercount. They explained that survey techniques and demographic analysis were not sufficiently advanced as sciences to permit distribution or allocation of the estimated undercount to states and localities on anything other than a pro rata basis using population figures from the census. They explained that since 1790 the census enumeration has never been adjusted to reflect an estimated undercount and that in their opinion Congress by statute had prohibited such an adjustment in the figures used for purposes of Congressional apportionment.7 Finally, for a combination of reasons, they expressed severe reservations about making such adjustments to the census head count. The reasons included the questionable reliability of any such estimate at the national level, the absence of any sound scientific theory for allocation of the national undercount, however determined, to the states and cities, the risk of undermining public confidence and public use of the census and the likelihood that the internal consistency of census data will be destroyed if hasty adjustments are made which add to states, localities and enumeration districts numbers of people who may not exist.
After the trial the District Court ordered defendants to estimate the undercount for blacks and hispanics, adjust the national census count accordingly, allocate the adjusted undercount to states and cities on a pro rata basis and withhold certification of the figures until this task is accomplished. Thereafter, the Supreme Court stayed the portion of the District Court‘s order requiring defendants to withhold certification of the unadjusted figures to the President and the states.
B. The 1980 Undercount Estimates Based on the 1980 Census
Two other significant events have occurred during the pendency of this appeal, events which we notice judicially. See Fed.R.Evid. 201. On December 11, 1980, the Census Bureau announced its decision that it would not on its own initiative, voluntarily adjust the 1980 census count for underenumeration but would obviously comply with any final court orders requiring it to do so. In a lengthy position paper supporting its position (filed with the Court at oral argument on February 12, 1981), the Census Bureau stated that “it is now clear” from the tabulation of 1980 returns that the head count “will exceed the April 1980 estimate by a very large margin.” Instead of counting 222 million people, as previously estimated, “the minimum final count for the Nation as a whole has reached 225.2 million” and “now is expected to be between 225.7 and 226.0 million persons.” These figures come close to the pre-census estimate of the head count plus the pre-census estimated undercount. In the December 11 document, the Bureau stated its view that the 1980 undercount is probably considerably smaller than in prior censuses due to the improvement of census procedures. It says that “the apparent zero undercount results from the under-enumeration of legal residents being offset by enumeration of illegal residents.” Based on these circumstances, the Bureau draws the conclusion: “At present, the Bureau has no sound statistical basis for estimating the true undercount or introducing the adjustments.” It further explains this conclusion as follows:
The relative undercount was probably considerably smaller in 1980 than in earlier censuses but its extent and distribution cannot be reliably defined or estimated because we are not able to measure how many illegals were present and counted. In the absence of reliable information on illegals, and in light of the data now in hand, it is clear that the “true” population and, hence the undercount for 1980 cannot be reliably estimated in the near term, if at all. Because of the much smaller measured undercount, it is our firm judgment on statistical grounds that adjustments for undercount are not in the public interest.
45 Fed.Reg. 82874 (1980).
The second significant event occurred February 23, 1981, when the Census Bureau released its “1980 Census Population Totals for Racial and Spanish Origin Groups in U. S.” That report shows the following figures:
| United States | 1980 | 1970 | Percent Distribution 1980 | Percent Distribution 1970 |
|---|---|---|---|---|
| Total .............. | 226,504,825 | 203,211,926 | 100.0 | 100.0 |
| White ............... | 188,340,790 | 177,748,975 | 83.2 | 87.5 |
| Black ................ | 26,488,218 | 22,580,289 | 11.7 | 11.1 |
| American Indian, Eskimo, and Aleut .... | 1,418,195 | 827,268 | 0.6 | 0.4 |
| Asian and Pacific Islander ............. | 3,500,636 | 1,538,721 | 1.5 | 0.8 |
| Other ................. | 6,756,986 | 516,673 | 3.0 | 0.3 |
| ------------------- | ||||
| Persons of Spanish Origin .............. | 14,605,883 | 9,072,602 | 6.4 | 4.5 |
| Persons not of Spanish Origin ..... | 211,898,942 | 194,139,324 | 93.6 | 95.5 |
The report states:
Comparisons with demographic estimates suggest that the 1980 undercount rate for blacks may be in the range of 4.5 to 5.5% compared to the estimated miss rate of 7.7% in 1970. In short, the Bureau feels that it may have achieved a 30-40% improvement in the undercount rate between 1970 and 1980. Similar analyses for other groups have not been completed.
C. The Remedy Imposed by the District Court
The parties appear to agree that neither the Census Bureau nor any other institution certainly not the federal courts independently have the resources or expertise “to develop a statistical and analytical methodology which will permit adjustment of (the census for) critical variables (i. e., selected subnational geographical units and selected characteristics) in a timely fashion.” 45 Fed.Reg. 82877 (1980). The undercount cannot be accurately distributed to “subnational geographic units” because we do not know in which communities the uncounted live. That leaves the remedy adopted by the District Court as the only possible remedy for correcting an undercount, the only remedy that anyone has seriously proposed. This remedy is a so-called “synthetic method” of adjustment. This method, simply stated, distributes an undercount, based on race, age, sex or other characteristics, to counties, cities, states or regions in accordance with the actual local head count already obtained by the census for that particular group. It requires a pro rata distribution of the undercounted elements of the population.
The Census Bureau points out that past samples and studies show that there are substantial geographical variations in any undercount and that synthetic distributions “introduce serious distortions not present in the unadjusted data” Id. If it should be the case that all or parts of Minneapolis, Dallas, Pasadena and Pittsburgh are relatively affluent and easy to count, it introduces serious distortions in the census, and in any legislative apportionment based on the census, when we increase their voting strength by adding people who are not there. To give another example of the distortions inherent in the synthetic method, one city whose hispanic population may not be undercounted at all Coral Gables, Florida would receive a population increase, and hence more legislative representation, than a rural county in North Florida whose disadvantaged black and white populations were undercounted at a much higher rate than the national average.
The same result occurs when we distribute the black undercount. The major portion of an estimated 1 million black undercount (approximately 4%) apparently comes from the approximately 30% of the black population at or below the poverty line because they are hard to count. Yet the synthetic method would add 70% of the black undercount to the voting strength of the more advantaged group, the black middle class. As in the case of whites, distribution of the black undercount according to the synthetic method has the effect of taking voting strength from the disadvantaged black population and giving it disproportionately to the more advantaged members of the same class.
II. JUSTICIABILITY
A. Standing
The issue of standing arises from the language in
In Duke Power Co. v. Carolina Env. Study Group, 438 U.S. 59, 72-73, 98 S.Ct. 2620, 2629-2630, 57 L.Ed.2d 595 (1978), the Court stated that the standing rule requires “not only a ‘distinct and palpable injury’ to the plaintiff ... but also a ‘fairly traceable’ causal connection between the claimed injury and the challenged conduct,” “or put otherwise, that the exercise of the Court‘s remedial powers would redress the claimed injuries.” Thus, when focusing on the question of a plaintiff‘s standing the relevant considerations are the existence of an injury, its cause, and the existence of a remedy for redress of the injury.
Our view of the standing issue does not arise because we have any doubts about the values and the general policy that plaintiffs seek to promote in asserting the underlying claim the desire to achieve equality for a racial minority. Rather it arises from the kind of inquiry that is necessary to dispose of the underlying claim for injunctive relief an inquiry based on an assumption that plaintiffs will be injured because the Michigan legislature will act in a particular way and an assumption that the injury can be remedied by a pro rata distribution to cities and towns across the nation of whatever national undercount exists. We hold that the first assumption is not warranted. We do not find it necessary to pass on the validity of the second assumption.
The injury to the Plaintiff Young‘s right of equal representation and equal weight of vote in the United States House of Representatives relates to the use of unadjusted census data for the apportionment of Congressional representation within the State of Michigan ....
The City of Detroit will be disparately undercounted in relation to the predominantly White suburbs and other areas of the state having little or no Black or Hispanic population.
....
The injury to the Plaintiff Young‘s right to equal representation and equal weight of vote in the United States House of Representatives results directly from the fact that the Census Bureau certifies an official population count of the cities and sub-state areas of the State of Michigan that is not adjusted for the differential undercount of Blacks and Hispanics. The official population count as certified by the Census Bureau will be used by the Michigan Legislature or the federal courts if necessary ... as it will be by the legislatures of all the other states, to redistrict representative districts for the United States House of Representatives. Because that official population count is not adjusted for the Black and Hispanic differential undercount, an apportionment pursuant to that official population count has caused and will cause injury to the Plaintiff Young‘s right to equal representation and equal weight of vote.
Brief of Appellee 54-57 (emphasis added).
If the Constitution leaves the Michigan legislature free to adjust the census figures reported by the Census Bureau, then the Michigan legislature might adjust the census data, thereby preventing the anticipated harm. No injury, of course, has occurred as yet; this suit is an attempt to preclude the possibility of future harm. If the Michigan legislature may adjust for the undercount, whether the injuries feared by plaintiffs do in fact arise does not depend upon defendants’ actions. An independent third party, the Michigan state legislature, would play a necessary role in determining the effects of the census upon plaintiffs.
Contrary to the assertions by plaintiffs, the state legislature is not required by the Constitution to accept in all respects the census data supplied by the Bureau.
The goal in any redistricting is to assure that “as nearly as is practicable one man‘s vote in a congressional election is worth as much as another‘s.” Wesberry v. Sanders, 376 U.S. 1, 7-8, 84 S.Ct. 526, 529-530, 11 L.Ed.2d 481 (1964). If the Census Bureau had erroneously undercounted the Detroit area by 25%, the Michigan legislature would not be precluded from adjusting the figures for purposes of congressional apportionment. Although the Constitution prohibits subterfuge in adjustment of census figures for purposes of redistricting, it does not constrain adjustment of census figures if thoroughly documented and applied in a systematic manner.
B. Ripeness
Standing doctrine imposes constitutional limitations on federal courts’ jurisdiction. Even when jurisdiction is technically present, however, the Supreme Court has recognized that ” ‘problems of prematurity and abstractness’ ... may prevent adjudication in all but the exceptional case.” Buckley v. Valeo, 424 U.S. 1, 114, 96 S.Ct. 612, 680, 46 L.Ed.2d 659 (1976), quoting Socialist Labor Party v. Gilligan, 406 U.S. 583, 588, 92 S.Ct. 1716, 1719, 32 L.Ed.2d 317 (1972). Such questions of ripeness, the Court has held, are resolved through two inquiries. Courts must first “determine whether the issues tendered are appropriate for judicial resolution,” and then “assess the hardship to the parties if judicial relief is denied at that stage.” Toilet Goods Association v. Gardner, 387 U.S. 158, 162, 87 S.Ct. 1520, 1523, 18 L.Ed.2d 697 (1967). Plaintiffs satisfy neither inquiry in this case.
The question whether tendered issues are appropriate for judicial resolution clearly “bears close affinity” to questions of standing. Warth v. Seldin, 422 U.S. 490, 499 n.10, 95 S.Ct. 2197, 2205 n.10, 45 L.Ed.2d 343 (1975). The precise focus of ripeness doctrine is that it is “peculiarly a question of timing.” Regional Rail Reorganization Act Cases, 419 U.S. 102, 140, 95 S.Ct. 335, 356, 42 L.Ed.2d 320 (1974). As Justice Fortas has pointed out in the context of pre-enforcement attacks on administrative regulations, the reason for deferring consideration of abstract or premature claims is to allow governmental processes
an opportunity to function to iron out differences, to accommodate special problems.... The courts do not and should not pass on these complex problems in the abstract and the general because these regulations peculiarly depend for their quality and substance upon the facts of particular situations. We should confine ourselves as our jurisprudence dictates to actual, specific, particularized cases and controversies, in substance as well as in technical analysis.
Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681; Toilet Goods Association v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697; Gardner v. Toilet Goods Association, 387 U.S. 167, 200, 87 S.Ct. 1526, 1543, 18 L.Ed.2d 704 (1967) (Fortas, J., concurring and dissenting). Because the Michigan state legislature has not yet expressed its reaction to the census enumeration, the issue before this Court has not become as “specific” or as “particularized” as it will become after the legislature acts. Heightened public sensitivity to the problems of census undercounts makes past reliance on census figures an uncertain predictor of future legislative action. Even if the ultimate response of the legislature could be predicted with some confidence, however, the fact that it is a representative, deliberative organ of state government rather than a private party must make this Court hesitate to exercise its power so as to narrow the range of solutions it might consider. As the Supreme Court has pointed out, the reasons a governmental body might provide for its actions are important in review of those actions. Toilet Goods Association v. Gardner, 387 U.S. at 163, 87 S.Ct. at 1524.
Accordingly, the judgment of the District Court is reversed.
KEITH, Circuit Judge, dissenting.
In a carefully considered and well written opinion, District Judge Horace W. Gilmore concluded that the Census Bureau must adjust its final 1980 census totals to correct the widely acknowledged and differential undercounting of Hispanics and black Americans. Today, the majority reverses in an opinion that is rife with legal and factual misanalysis. I must respectfully dissent.
I.
Although the majority opinion contains a substantial amount of far ranging dicta, its holding is limited, technical, and I think, myopic.1 It rules that this case is not justiciable because either the plaintiffs lack standing or because the controversy presented by the parties is not sufficiently ripe. Judge Merritt, speaking for the majority, rules that “(t)he plaintiffs have shown no judicially cognizable injury and lack standing to sue. The claimed injury is based on a state of affairs not yet in existence, and it is so hypothetical in nature that it does not present a controversy capable of judicial resolution.”
I respectfully disagree with both parts of this analysis. I believe that the court misuses standing and ripeness doctrines in order to avoid grappling with a serious question of constitutional harm.2 I would reach the merits, and although I am in substantial agreement with the district court‘s analysis, I would remand this case to the district court for further factfinding in light of data which has become available subsequent to the district court‘s decision.
A. Standing
I agree that the majority correctly outlines the modern law of standing. In Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) and Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970), the Supreme Court established the injury-in-fact requirement for constitutional standing. Subsequent decisions have made clear that in order to show injury-in-fact, a plaintiff must establish a “distinct and palpable injury” and a fairly traceable causal connection between the claimed injury and the challenged conduct. See Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979); Orr v. Orr, 440 U.S. 268, 271-73, 99 S.Ct. 1102, 1107-08, 59 L.Ed.2d 306 (1979); Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72-3, 98 S.Ct. 2620, 2629-30, 57 L.Ed.2d 595 (1978). A plaintiff can satisfy the causation requirement by showing that there is a “substantial likelihood” that the relief requested of the court will redress the claimed injury. Duke Power Co. v. Carolina Environmental Study Group, supra, at 75 n.20, 98 S.Ct. at 2631 n.20; J. Nowak, Handbook On Constitutional Law 73-9 (1978); id. 1978 Pocket Part at 7; L. Tribe, American Constitutional Law 92 (1978). Although the court correctly outlines the law of standing, it misapplies that law to the facts of this case.
The causation component of modern standing analysis has been grafted from the causation theory of the law of torts. In tort law, two forms of causation are recognized. The first is “but for” causation or the sine qua non rule. The second is “proximate” or “legal” causation. I think it is clear that under either approach causation exists in the circumstances of this case for purposes of establishing constitutional standing.3
In “but for” causation, a defendant‘s conduct is not a cause of the event if the event would have occurred without it. See W. Prosser, Law of Torts 238-9 (4th ed. 1971); Smith, Legal Causes in Actions of Tort, 25 Harv.L.Rev. 103-9 (1911). Under this formula, if injury would not have occurred to the plaintiff but for defendant‘s conduct, the defendant is liable for the whole injury “regardless of its position in the string of acts leading to the injury though one or more of the other causes contributing to the result also involved wrongdoing on the part of other persons.” F. Harper & F. James, 2 The Law of Torts 1121-22 (1956).4
Proximate cause, on the other hand, refers to the “more or less undefined considerations which limit liability even where the fact of causation is clearly established.” Prosser, supra at 244. Under proximate causation theory, an act occurring after the defendant‘s action and before the plaintiff‘s injury can be an “intervening cause“, i. e. one which erases any responsibility on the defendant‘s part. However, “(i)f the intervening cause is one which in ordinary experience is reasonably likely to be anticipated, or one which the defendant has reason to anticipate under the particular circumstances, he may be negligent only for that reason.” Id. at 272. In other words, “(f)oreseeable intervening forces are within the scope of the original risk, and hence of the defendant‘s negligence. The courts are quite generally agreed that intervening causes which fall fairly in this category will not supersede the defendant‘s responsibility.” Id. at 273.5
If the Census Bureau failed to supply sub-state population figures, containing a differential undercounting of minorities, the state legislature could not then reapportion on the basis of those figures. Therefore, “but for” causation is present. As previously mentioned, the district court found that the plaintiffs would lose a proportionate amount of voting representation equal to the amount of the differential undercounting in the federal census. This is the claimed injury of the plaintiffs. It was found by the district court to exist, and for standing purposes this finding is entitled to great weight. The plaintiff could not suffer this injury which was found to exist by the district court “but for” the Bureau‘s challenged action. Thus, the causation requirement under the first formulation is necessarily met.
For the reasons outlined above, it is certainly foreseeable that the state would reapportion on the basis of the inaccurate figures. Therefore, any loss of state representation suffered by the plaintiffs is within the scope of the foreseeable risk created by the Bureau‘s failure to accurately count minorities. Accordingly, the Bureau‘s action has to be a cause of the injury and plaintiffs have standing to challenge the conduct.
The majority finds that the decision of the state legislature to reapportion on the basis of federally-supplied totals breaks the chain of causation between plaintiffs and the Bureau because as “(a)n independent third party, the Michigan state legislature would play a necessary role in determining the effects of the census upon plaintiffs.” I think this rationale misses the point. The state legislature‘s action would certainly be necessary in order to create the plaintiffs’ injury, but this fact does not mean that other concurrent causes are not present as well. If plaintiffs’ injury would not occur “but for” the Bureau‘s differential undercounting, then in my view the undercounting is a concurrent cause of the injury and the causation requirement is satisfied.
However, if “but for” causation is not enough to establish standing here, then certainly proximate cause does. If the Bureau could reasonably foresee that the state legislature would use the figures in such a way as to cause the claimed injury to the plaintiffs, then the actions of the state even if it is an independent party cannot break the chain of causation.
Recent decisions support my view of the causation requirement‘s application here. In Duke Power Co. v. Environmental Study Group, supra, the district court discerned a “but for” causal connection between the existence of the Price Anderson Act, the construction of nuclear power plants in the country, and the adverse consequences alleged by the plaintiffs. The petitioners challenged this finding of causation on two grounds in the Supreme Court: (1) that the particular nuclear power plants in question would have been constructed by private companies without the Price Anderson Act‘s limitation on liability; and (2) that if Congress had not passed the Price Anderson Act it may well have chosen to pursue the nuclear program as a government monopoly as it had done from 1946 to 1954. The Supreme Court rejected both contentions. It held that industry testimony at Congressional hearings on the passage of the Act indicated that the industry would not develop nuclear power facilities without a limitation on liability. In addition, it rejected the contention that the Price Anderson Act was not a “but for” cause of any adverse consequences to the plaintiffs since the government would have undertaken development of nuclear power on its own. It held that “(w)hatever the ultimate accuracy of this speculation, it is not a response to the simple proposition that private power companies now do in fact operate the nuclear-powered generating plants injuring the appellees, and that their participation would not have occurred but for the enactment and implementation of the Price Anderson Act.” Id., 438 U.S. at 77-8, 98 S.Ct. at 2632-33. (emphasis added)
In Duke Power, the direct cause of the plaintiff‘s injury was the decision of the private utility companies to construct the nuclear power plants at issue. The effect of the Price Anderson Act was one step removed. Nevertheless the Supreme Court found a causal nexus between the operation of the Price Anderson Act and the claimed injury of the plaintiffs. As I have previously mentioned, an act does not have to be the last in a “string of acts leading to the (plaintiff‘s) injury” in order for it to be a “but for” cause. See F. Harper and F. James, supra at 1121-22. The sole issue is whether the injury would have resulted without the occurrence of the act. In this case, the defendants’ challenged action is not the direct cause of plaintiffs’ injury. However, as in Duke Power, the plaintiffs’ injury would not result without the occurrence of the defendants’ challenged conduct. Thus, causation sufficient enough to establish standing is present even though the defendants’ action is not a direct cause.
The Court in Duke Power did not specifically address the issue of intervening causation. But, it is clear that construction of nuclear plants and the resultant injury to the plaintiffs were foreseeable results of passage of the Price Anderson Act. This is evident because the Court did not find that the decision of the companies to construct nuclear power plants was an intervening cause that broke the chain of causation between the Price Anderson Act and the claimed injury. The company argued that in the absence of the Act, the government might have constructed such plants on its own or that private companies might have raised the necessary funding under an alternate scheme. However, the Court ruled that prior cases did not require “a party seeking to invoke federal jurisdiction to negate the kind of speculative and hypothetical possibilities suggested in order to demonstrate the likely effectiveness of judicial relief.” Id. at 78, 98 S.Ct. at 2633. The same analysis applies here. In order to demonstrate a traceable link from the Bureau‘s actions to their claimed injury, the plaintiffs should not be required to negate the “speculative and hypothetical possibilities” that Michigan might: (1) change its long standing law requiring the sole use of federal census totals; and either (2) develop the capacity to conduct an accurate state census or (3) develop the capacity to make accurate adjustments of federal census data. The decision of the Michigan legislature to use raw federally-supplied sub-state totals is a foreseeable consequence of the Bureau‘s supplying of those figures. Thus, as in Duke Power, there is no intervening causation present.
The case at bar is distinguishable from Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). In that decision, the Supreme Court found that
Simon apparently provides the basis for the majority‘s invocation of intervening cause analysis in this case. In Simon, the Supreme Court did state that “Article III still requires that a federal court act only to redress injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court.” 426 U.S. at 41-2, 96 S.Ct. at 1925-26. (emphasis added). However, since
B. Ripeness
The majority correctly outlines the Ripeness doctrine. Unfortunately it misapplies this doctrine, just as it misapplies standing. The majority holds that it would be better to wait until the Michigan legislature acts on reapportionment because only then would the issues here be particularized enough for judicial resolution. I disagree. I think the court‘s invocation of ripeness as a reason to reverse the district court amounts to another smokescreen to justify ducking important questions.
First, for reasons outlined above, I cannot agree with the majority‘s statement that “(h)eightened public sensitivity to the problems of census undercounts makes past reliance on census figures an uncertain predicator of future legislative action.” The court speculates that the Michigan legislature will depart from its invariable past practice and either adjust federally-supplied census data or use their own data for reapportionment. For the reasons outlined above, I see no reason to believe this will occur.