After holding the Georgia Legislature to be malapportioned, the
District Court enjoined appellant election officials from placing
on the 1964 ballot or subsequent ballots, until the General
Assembly is properly apportioned, the question of adopting a new
state constitution. Appellees suggested that the issue was
moot.
Held: This part of the decree is vacated and remanded
to the District Court to consider the present need for the
injunction.
Decree vacated in part and remanded.
PER CURIAM.
The District Court, having held that the Georgia Legislature was
malapportioned (
Toombs v. Fortson, 205 F.Supp. 248),
enjoined appellants, election officials,
"from placing on the ballot to be used in the General Election
to be held on November 3, 1964, or at any subsequent election until
the General Assembly is reapportioned in accordance with
constitutional standards, the question whether a constitutional
amendment purporting to amend the present state constitution by
substituting an entirely
Page 379 U. S. 622
new constitution therefor shall be adopted.
*"
Appellants challenge that provision on the merits. Appellees,
while defending it on the merits, suggest alternatively that the
issue has become moot.
The situation has changed somewhat since the 1964 election, as
both the Senate and the House have new members, and appellees, for
whose benefit the challenged provision was added, say it is now
highly speculative as to what the 1965 legislature will do, and
suggest the paragraph in question be vacated as moot.
We vacate this part of the decree and remand to the District
Court, to whom we give a wide range in moulding a decree
(
United States v. Crescent Amusement Co., 323 U.
S. 173,
323 U. S. 185;
International Boxing Club of New York v. United States,
358 U. S. 242,
358 U. S.
253), for reconsideration of the desirability and need
for the ongoing injunction in light of the results of the 1964
election and the representations of appellees.
It is so ordered.
Page 379 U. S. 623
* The entire paragraph reads as follows:
"The defendants are hereby enjoined from placing on the ballot
to be used in the General Election to be held on November 3, 1964,
or at any subsequent election until the General Assembly is
reapportioned in accordance with constitutional standards, the
question whether a constitutional amendment purporting to amend the
present state constitution by substituting an entirely new
constitution therefor shall be adopted; provided, however, nothing
in this order shall prevent the submission of amendments to the
Constitution of the State of Georgia which are separate as to
subject matter, in accordance with Article XIII, Section I, Article
1, of the Constitution of the State of Georgia, 1945. (
See
Hammond v. Clarke, 136 Ga. 313, for a discussion by the
Georgia Supreme Court of what constitutes separate amendments). Nor
shall anything in this order prevent the calling by the General
Assembly of a 'convention of the people to revise, amend or change
the constitution' if the representation 'in the convention is based
on population as near as practicable' with the members being
elected by the people (see Article XIII, Section I, Article 2).
Constitution of the State of Georgia, 1945."
MR. JUSTICE CLARK, concurring.
Although I would prefer to declare this litigation moot and
vacate the judgment below, I am joining the opinion and judgment of
the Court solely on the basis that it is not reaching the merits
regarding the propriety of the order fashioned by the three-judge
District Court. In my view, the Court is simply vacating and
remanding in order to give the District Court an opportunity to
reconsider its order in light of the change in circumstances which
has occurred since judgment was entered.
MR. JUSTICE HARLAN, with whom MR. JUSTICE STEWART joins,
concurring in part and dissenting in part.
This is the first time that the Court, after plenary briefing
and argument, has been called on to consider the propriety of
interim arrangements prescribed by a district court pending the
effectuation of its decision requiring reapportionment of a branch
of a state legislature.
After holding that the House of Representatives of the General
Assembly of Georgia was unconstitutionally composed, a decision
which is not called into question on this appeal, the three-judge
District Court ordered: (1) that the election in 1964 of the
legislature to serve in 1965 (the 1965 legislature) might proceed
under the State's existing methods of apportionment; (2) that,
until a properly apportioned legislature took office no other
legislature could propose to the electorate, except through the
calling of a convention of popularly elected delegates, the
adoption of a new state constitution; and (3) that (except for
reapportionment legislation) the 1965 House should be "limited,"
notwithstanding any provision of state law, "to the enactment of
such legislation as shall properly come before the said Legislature
during the regular 1965 45-day session" provided by Georgia law.
After the State's appeal was filed in this Court, this last
Page 379 U. S. 624
provision was, in effect, abrogated by the District Court with
the approval of the parties. [
Footnote 1]
This appeal draws in question the validity of items (2) and (3)
above, similarly numbered in the District Court's order. It is
contended by the appellees, however, that both these issues have
now become moot.
I
The Court's disposition of this case, of course, involves a
holding that at least as to item (2), the case is not moot. For,
contrary to what my Brother GOLDBERG says in his dissenting opinion
(
post, pp.
379 U. S.
636-638) and as my Brother CLARK seems to recognize
(
ante), the Court does not remand the case to the District
Court for a determination on the issue of mootness, but only to
decide whether any injunctive relief is now appropriate in light of
what has transpired since such relief was first granted.
While it may be that the Court's implicit holding on mootness
does not reach beyond the portion of the District Court's decree
that goes to the submission of a proposed new state constitution
(par. (2) of the decree), I would also hold not moot the
pronouncement of that decree placing limitations on the functioning
of the 1965 State Legislature (original par. (3) of the
decree).
As to paragraph (2), it is sufficient to say that the injunction
has continuing effect not only with respect to the 1965
legislature, but also as to any successor legislature if it is
found to be "malapportioned." Any alleged "speculativeness" as to
whether a new state constitution may be proposed to the electorate
before a "constitutional" legislature comes into being goes not to
mootness, but only to the question whether the District Court
(assuming its power in the premises, see below) should
Page 379 U. S. 625
have granted any relief on this score. [
Footnote 2] So far as original paragraph (3) of the
decree is concerned (limiting the activities of the 1965
legislature), it was not rendered moot by the District Court's
modification after the case had been taken for review by this
Court. Analytically, the situation is tantamount to a confession of
error at this level at most relieving this Court of the necessity
of making a definitive exposition of its views on this subject
(
compare the suggestion of my Brother GOLDBERG,
post, pp.
379 U. S.
638-639), but not depriving the question of the
attribute of justiciability.
Cf. Young v. United States,
315 U. S. 257,
315 U. S.
258-259.
The position adopted by the Court is that, although the case is
not moot at least as to the "constitution submission" issue,
decision of that question could be avoided if the District Court
chose to vacate that part of its injunction in light of the change
in circumstance which has made the need for such relief
speculative; the Court therefore remands the case to afford the
District Court that opportunity. I do not think that such avoidance
as to either question is called for in this case. The Court's
reapportionment decisions have pressed district courts onto an
uncharted and highly sensitive field of federal-state relations
with little more to guide them than the elusive "one person, one
vote" aphorism. District courts, as courts of first instance, must
necessarily fashion remedies for themselves, and the passage of
time and the variety of remedies chosen by them may ultimately help
this Court to wend its way through this treacherous constitutional
terrain. But it is essential that the lower courts at least be
launched in the right general direction, and not allowed to range
so far afield as to hamstring state legislatures and deprive States
of effective
Page 379 U. S. 626
legislative government. Paragraphs (2) and (3) of the injunction
involved in this case do range that far afield. Absent disapproval
by this Court, the decision below, rendered by a distinguished
panel, cannot fail to furnish a strong practical, if not legal,
precedent for other district courts. I do not think this should be
allowed to happen.
II
I would hold the decree below improvident in both the aspects
before us.
As to the provision forbidding submission to the electorate of a
legislatively proposed new state constitution, I can find nothing
in the Fourteenth Amendment, elsewhere in the Constitution, or in
any decision of this Court which requires a State to initiate
complete or partial constitutional change only by some method in
which every voice in the voting population is given an opportunity
to express itself. Can there be the slightest constitutional doubt
that a State may lodge the power to initiate constitutional changes
in any select body it pleases, such as a committee of the
legislature, a group of constitutional lawyers, or even a
"malapportioned" legislature -- particularly one whose composition
was considered, prior to this Court's reapportionment
pronouncements of June 15, 1964, to be entirely and solely a matter
of state concern? [
Footnote
3]
Similarly, as to the provision of the lower court's original
decree limiting the functions of the 1965 legislature, it seems
scarcely open to serious doubt that, so long as the federal courts
allow this Georgia Legislature to sit, it must be regarded as the
de facto legislature of the State, possessing the full
panoply of legislative powers accorded by Georgia law.
Page 379 U. S. 627
I think that the State of Georgia is entitled to a clear-cut
pronouncement from this Court that nothing in its reapportionment
decisions contemplated such unheard-of federal court intrusion into
state political affairs as the decree before us evidence. Beyond
that, for this Court to temporize with important interstitial
matters of this kind, deeply affecting the even course of
federal-state relations, can only serve to aggravate the confusion
which last June's reapportionment cases have left in their wake.
[
Footnote 4]
I would modify the decree below by striking therefrom paragraph
(2) and approving the substitute for original paragraph (3) as
framed by the District Court.
[
Footnote 1]
The full text of the District Court's order and the amendment of
item 3 are printed in the dissenting opinion of MR. JUSTICE
GOLDBERG as Appendices A and B, respectively.
Post, pp.
379 U. S. 639,
379 U. S.
641.
[
Footnote 2]
See Labor Board v. Pennsylvania Greyhound Lines, Inc.,
303 U. S. 261,
303 U. S. 271;
Southern Pac. Terminal Co. v. Interstate Commerce Comm'n,
219 U. S. 498,
219 U. S.
514-515.
[
Footnote 3]
If, as I believe, a State is not federally restricted in its
choice of means for initiating constitutional change, the question
of whether, under Georgia law, the proposed new Georgia
Constitution should have been initiated by a popularly elected
convention, instead of by the legislature, is not a matter for
federal cognizance.
[
Footnote 4]
To hold as I think the Court should on these issues would not in
any way impair the federal courts' ability to prevent frustration
of their reapportionment decrees.
MR. JUSTICE GOLDBERG, dissenting.
I dissent from the Court's disposition of this case. By
remanding, the Court is, in effect, asking the District Court to
decide whether this appeal, which is pending before us and with
respect to which we noted probable jurisdiction and heard argument,
should be dismissed as moot due to events occurring after the
appeal had been perfected in this Court. Mootness, in my view, is a
question which, under these circumstances, this Court has the
responsibility to decide. The facts relevant to this issue are
undisputed. The District Court is in no better position to resolve
the issue of mootness than we. No legitimate purpose is served by
asking it to determine a question which is properly before us and
which a long line of unbroken precedents would have us decide.
[
Footnote 2/1] Moreover, if the
case is moot, as I believe, there is no need for a further
time-consuming hearing below and a possible future second
Page 379 U. S. 628
appeal to this Court. Surely both the District Court and this
Court have enough to do without this Court's creating unnecessary
work for both. I would simply vacate the injunction order and
dismiss this appeal as moot.
That this case is in fact moot becomes apparent from a
consideration of the history of this litigation.
The appeal calls into question the validity of portions of an
injunction issued by a three-judge District Court involving the
reapportionment of the Georgia House of Representatives. The
District Court entered an order on June 30, 1964, holding that the
Georgia House of Representatives was unconstitutionally apportioned
under the Federal Constitution, and declaring invalid state
constitutional and statutory apportionment provisions. The court's
order allowed the November, 1964, elections for the House of
Representatives to take place under the then-existing
constitutional and statutory provisions, but it required that new
elections be held in 1965 in time for a properly apportioned
legislature to take office no later than "the second Monday in
January, 1966." Paragraph (2) of the court's order further enjoined
appellants, state election officials from placing on the November,
1964, election ballot a new state constitution proposed by the
then-existing unconstitutionally apportioned legislature, and it
also enjoined the submission of a wholly new constitution to the
voters by the legislature "at any subsequent election until the
[legislature] . . . is reapportioned in accordance with
constitutional standards." Paragraph (3) of the District Court's
order limited the power of the 1965 legislature to enacting "such
legislation as shall properly come before [it] . . . during the
regular 1965 45-day session." Appellants' motion for a stay of the
District Court's order was denied by MR. JUSTICE BLACK on July 6,
1964. [
Footnote 2/2]
Page 379 U. S. 629
Appellants appealed to this Court. In their jurisdictional
statement, they did not contest the basic holding that the House of
Representatives was unconstitutionally apportioned. They challenged
the validity of portions of paragraphs (2) and (3) of the District
Court's order. [
Footnote 2/3]
Appellees moved to affirm on the ground that the order was in all
respects valid. We noted probable jurisdiction, 379 U.S. 809, and
granted appellants' motion to advance the cause for oral
argument.
Shortly prior to argument, appellees moved that this appeal be
dismissed because events supervening since the entry of the
District Court's order rendered this appeal moot. Appellants
opposed this motion. Consideration of appellees' motion to dismiss
was postponed until the hearing.
Upon argument of this case, it appeared without dispute that,
since the entry of the order below, the parties had agreed upon
modifications which eliminated appellants' objections to paragraph
(3) of the District Court's order, and that the District Court, on
November 3, 1964, had entered an order embodying the agreed-upon
modifications. [
Footnote 2/4] It
likewise was agreed at the argument that the new constitution
proposed by the legislature was not submitted to the voters in
November, 1964, and that, under Georgia law, it has lapsed, and
cannot be resubmitted. Thus, the only issue remaining in this case
is the validity of that portion of the District Court's order which
prevents the newly elected or any future unconstitutionally
Page 379 U. S. 630
apportioned legislature from proposing and submitting to the
voters a wholly new state constitution.
Appellees, in their motion to dismiss and at the argument,
stated that, although they originally sought affirmance of the
portion of the District Court's order now under consideration, they
no longer do so because, due to supervening events, it is now
"highly speculative" as to whether the newly elected legislature
[
Footnote 2/5] or any future
unconstitutionally apportioned legislature will ever submit another
wholly new constitution to the voters. Appellees state that,
consequently, they no longer need the protection given them by the
District Court's prohibition of such a submission, and that
"this appeal presents only an abstract, hypothetical controversy
in which the 'lively conflict between antagonistic demands,
actively pressed, which make resolution of the controverted issue a
practical necessity' is lacking. [
Footnote 2/6]"
They suggest that, for these reasons, controversy over this
portion of the order has now become moot, and urge that the appeal
be dismissed, and that this portion of the order be vacated.
Appellants
Page 379 U. S. 631
resist the motion to dismiss on grounds of mootness. They
contend that this Court should reach the merits and reverse the
basic determination of the District Court that, under the Federal
Constitution, a malapportioned legislature is without power to
propose a new constitution to the voters. [
Footnote 2/7] They argue that a decision on the merits
is called for, because the issuance of the prior opinion of the
District Court granting the injunction will have a precedential and
deterrent effect, notwithstanding the vacation of the injunction
order.
As this history shows, the appeal, in its present posture, is
plainly moot under long established principles and precedents. The
question appellants would have us decide is one of grave import,
involving the power under the Federal Constitution of a
malapportioned legislature to submit a state constitution to a
popular vote -- a question which necessarily involves a
consideration of the varying systems used in different States for
proposing constitutional amendments. The doctrine of "mootness,"
like the related doctrine of "ripeness," has been evolved by this
Court so that it will not have to pass upon this type of question
except upon the urging of one who is harmed or is currently
threatened with harm caused by the allegedly unconstitutional
action.
See Stearns v. Wood, 236 U. S.
75. While this Court cannot and will not avoid its
constitutional responsibility to decide apportionment cases arising
when justiciable problems are presented and pressed for decision by
litigants
Page 379 U. S. 632
claiming an abridgment of their constitutional rights, [
Footnote 2/8] it should not, in
apportionment cases, as in other areas, decide moot issues,
volunteer judgments, or seek out questions which have ceased to be
ripe for adjudication [
Footnote
2/9] and are no longer presented in the context of an actual
pending controversy. [
Footnote
2/10] I strongly, albeit respectfully, disagree with my Brother
HARLAN's intimation, grounded on his basic view that the Court
should never have entered into reapportionment matters at all,
that, now that it has been decided that such issues are
justiciable, this Court should be more willing in this "sensitive"
area than in other areas to give opinions of an advisory nature, so
that "the lower courts [will] at least be launched in the right
general direction and not allowed to range so far afield." Opinion
of MR. JUSTICE HARLAN,
ante, p.
379 U. S. 625.
Moreover, it has already been demonstrated, as was easily
predictable from the history of other constitutional issues of a
"sensitive" nature, that there is in this area ample opportunity to
guide the lower courts within the traditional bounds of concrete,
live controversies, actively pressed by real adverse parties.
See Fortson v. Dorsey, ante, p.
379 U. S. 433;
Scranton v. Drew, ante, p.
379 U. S. 40.
This Court does not pass upon constitutional questions unless it
is necessary to do so to preserve the rights of the parties.
See Liverpool, N.Y. & P. S.S. Co. v. Commissioners,
113 U. S. 33,
113 U. S. 39;
Ashwander v. Tennessee Valley Authority, 297 U.
S. 288,
297 U. S. 341,
297 U. S.
345-348 (concurring opinion of Mr. Justice Brandeis);
Coffman v. Breeze Corps., 323 U.
S. 316,
323 U. S. 325. Nor
does it decide abstract questions merely because of the effect such
judgments might have
Page 379 U. S. 633
upon future actions in similar circumstances.
Little v.
Bowers, 134 U. S. 547,
134 U. S. 558;
California v. San Pablo & T. R. Co., 149 U.
S. 308,
149 U. S. 314;
Kimball v. Kimball, 174 U. S. 158. In
the present case, we are told by the proponents of the injunction
that there exists only a remote possibility that the newly elected
legislature or some future one will submit a wholly new
constitution to the voters.
Cf. Bus Employees v. Missouri,
374 U. S. 74,
374 U. S. 78. If
the question of the legislature's power to propose such a
constitution were being submitted to a court as an initial matter,
the speculativeness of the legislature's future conduct would
undoubtedly render this issue unripe for adjudication.
See New
Jersey v. Sargent, 269 U. S. 328;
Arizona v. California, 283 U. S. 423;
Electric Bond & Share Co. v. SEC, 303 U.
S. 419,
303 U. S. 443;
Alabama State Federation of Labor v. McAdory, 325 U.
S. 450,
325 U. S. 471;
United States v. Harriss, 347 U.
S. 612. The speculativeness which has arisen in this
case since the order was entered makes the issue in this appeal, in
my view, similarly unsuitable for adjudication.
United States
v. Alaska S.S. Co., 253 U. S. 113.
The appellees themselves, in whose favor the judgment below has
run, do not assert the need for the protection of the District
Court's order against future submission of a new constitution; they
deem the possibility of such a submission too remote. They
therefore are agreeable to the vacation of the injunction which
they sought and obtained. This obviously will relieve appellants of
any burden which the injunction imposes upon them. It also will
remove any precedential effect of the opinion of the District Court
on this issue.
United States v. Munsingwear, 340 U. S.
36,
340 U. S. 39-41;
Note, 103 U.Pa.L.Rev. 772, 794. Appellants would have the
injunction reversed on the merits as improperly issued, rather than
vacated, as appellees desire. Although there is this difference as
to the proper disposition of this case, the net
Page 379 U. S. 634
result is that no party wishes the injunction to remain in
effect. In the present posture of the case, the conclusion which
emerges is that, although the parties differ with respect to the
abstract legal question of the validity of the order, there is no
longer present here that "real, earnest and vital controversy
between individuals" which assures us that a cause is in a "real
sense adversary." [
Footnote 2/11]
Chicago & Grand Trunk R. Co. v. Wellman, 143 U.
S. 339,
143 U. S. 345;
United States v. Johnson, 319 U.
S. 302,
319 U. S. 305.
Appellants' argument that the order, though vacated, will have an
inhibitory effect upon the legislature's activity is but a way of
saying that appellants desire to know for their own purposes, as a
guide to future conduct, what this Court would have said on the
merits had the issue remained embedded in a real and substantial
controversy. Without such a controversy currently existing between
those who appear as adverse parties, this Court should not give an
opinion upon questions of law "which a party desires to know for .
. . his own purposes." [
Footnote
2/12]
Cleveland v.
Chamberlain, 1 Black 419,
66 U. S. 426;
See American Woodpaper Co. v.
Heft, 8 Wall. 333;
South
Spring Hill Gold
Page 379 U. S. 635
Mining Co. v. Amador Medean Gold Mining Co.,
145 U. S. 300.
The situation in this case is a far cry from that presented in
Bus Employees v. Missouri, supra, where an "existing
unresolved dispute" made the likelihood of repetition of the
conduct in question much greater than the mere "speculative"
possibility existing here.
Id. at
374 U. S. 78.
Nor do other decisions [
Footnote
2/13] relied upon by appellants support their position. In none
of these cases was there any assertion, as here, by the party for
whose benefit the injunction order was issued, that it had become
highly problematical that the conduct which underlay the
controversy would be repeated. In
Federal Trade Comm'n v.
Goodyear Tire & Rubber Co., 304 U.
S. 257;
J. I. Case Co. v. Labor Board,
321 U. S. 332,
relied upon by appellants, the party supporting the validity of the
order called into question contended that the order was necessary,
and its validity should be reviewed. In the instant case, whether
or not the legislature, while still malapportioned, will submit a
wholly new constitution to the voters is highly problematical, and
the parties supporting the correctness of the injunction themselves
feel that it should be vacated, since they see no threat that the
legislature will repeat conduct they consider illegal. The case is
therefore much more closely analogous to
United States v.
Alaska S.S. Co., supra, in which this Court refused to review
the question of the power of the Interstate Commerce Commission to
require carriers to comply with an ICC order prescribing certain
bills of lading. A three-judge District Court had found the
Commission had no such power, and had enjoined the Commission from
ever issuing such an order. Before argument in this Court,
Page 379 U. S. 636
however, it became clear that provisions in the bills of lading
prescribed by the Commission conflicted with provisions contained
in new legislation passed by Congress after the District Court's
decision. Since the particular bills of lading prescribed would
have to be withdrawn by the Commission in view of this legislation,
and because of the uncertainty as to whether the Commission would
prescribe new bills of lading or the form they would take, this
Court refused to decide the issue of whether the Commission had the
power to prescribe any bills of lading. The Court stated,
"However convenient it might be to have decided the question of
the power of the Commission to require the carriers to comply with
an order prescribing bills of lading, this court"
"is not empowered to decide moot questions or abstract
propositions, or to declare, for the government of future cases,
principles or rules of law which cannot affect the result as to the
thing in issue in the case before it."
253 U.S. at
253 U. S. 116.
The Court reversed the District Court's order and remanded the case
to the District Court
"with directions to dismiss the petition . . . without prejudice
to the right of the complainants to assail in the future any order
of the Commission prescribing bills of lading after the enactment
of the new legislation."
Id. at
253 U. S.
116-117. Unless Alaska %.s.s. c/o., is to be overruled
or ignored, the Court should act similarly here.
Finally, I find the Court's disposition of this case mystifying,
for I cannot understand what the District Court is to do upon
remand. Since the District Court's order has been vacated, no
injunction will be in effect. Presumably, the District Court will
have before it two groups of parties, one group urging that no
order be entered and the other group claiming that no order is
necessary because the likelihood of the legislature's resubmitting
a new constitution is too remote. It is inconceivable to me that
the District Court would be warranted in reinstating
Page 379 U. S. 637
its injunction under the present facts. Of course, if
circumstances changed, and there was a real, rather than a tenuous
threat of further legislative action of the type originally
complained of, the District Court, which has retained jurisdiction
of this case, would be empowered to entertain an application for
appropriate injunctive relief. However, I cannot understand the
logic of the Court's decision in asking the District Court now to
make a determination which, under the present circumstances, is
rightfully our responsibility.
My Brother HARLAN suggests that, contrary to my view,
"the Court does not remand the case to the District Court for a
determination on the issue of mootness, but only to decide whether
any injunctive relief is now appropriate in light of what has
transpired since such relief was first granted."
Ante, p.
379 U. S. 624.
But, with due respect, I suggest that his interpretation of the
Court's opinion is not justified by what the Court says or does.
The Court explicitly sets forth appellees' contention that the case
is moot because "[t]he situation has changed somewhat since the
1964 election," and "it is now highly speculative as to what the
1965 legislature will do" [ante, p.
379 U. S.
622], and then the Court remands the case for
reconsideration of the desirability of and need for the injunction
in terms of the contentions raised by appellees,
i.e., "in
light of the results of the 1964 election and the representations
of appellees."
Ibid. This surely must mean that the Court
is asking the District Court to consider appellees' contentions
that the case is moot. Further, I might better understand my
Brother HARLAN's general distinction between determining whether a
case is moot and whether an injunction is still appropriate if
there were some issue in this case other than the power of the
District Court to issue the injunction. But the only issue
presented for decision on the merits is whether the District Court
validly issued this type of injunction; thus, to decide here
Page 379 U. S. 638
whether, in light of the changed circumstances and the parties'
present desires, continuance of the injunction is still appropriate
is to decide the identical question as to whether, in light of
these changed circumstances and the present contentions of the
parties, the case has become moot. Determining the issue of
mootness and deciding "whether any injunctive relief is now
appropriate in light of what has transpired since such relief was
first granted" both come down to the same thing -- the question is
whether, at this juncture, as appellees contend,
"this appeal presents only an abstract, hypothetical controversy
in which the 'lively conflict between antagonistic demands,
actively pressed, which makes resolution of the controverted issue
a practical necessity' is lacking."
The question is one for this Court to decide.
I believe that the proper result in this case would be to
sustain the appellees' motion to dismiss for mootness and to enter
an order vacating paragraph (2) of the District Court's order of
June 30, 1964, prohibiting submission of a wholly new constitution
to the voters by the legislature at the 1964 election of "at any
subsequent election until [it] . . . is reapportioned in accordance
with constitutional standards." Thus, this portion of the slate
would be wiped clean,
United States v. Munsingwear, supra,
without any necessity for further proceedings below to try the
mootness issue. In view of the parties' stipulations before this
Court that they accept the modifications entered by the District
Court on November 3, 1964, I believe that the Court is correct in
not passing upon the validity of paragraph (3) of the District
Court's order of June 30, 1964 -- that portion of the order which
appellants took as limiting the powers of the 1965 legislature.
However, because of doubts expressed as to the jurisdiction of the
District Court to enter its modified order while appeal is pending
in this Court,
see Schempp v. School
District, 184 F.
Supp. 381 (D.C.E.D.Pa.), the Court
Page 379 U. S. 639
ought also to vacate paragraph (3) of the June 30, 1964, order
on the assumption that the District Court will reenter its modified
order of November 3, 1964, in accordance with the agreement of the
parties.
The federal district courts have enough to do in deciding ripe
reapportionment cases without our requiring them to decide stale
ones.
[
Footnote 2/1]
See, e.g., San Mateo County v. Southern Pac. R. Co.,
116 U. S. 138;
United States v. Alaska S.S. Co., 253 U.
S. 113;
Bus Employees v. Wisconsin Board,
340 U. S. 416;
Oil Workers Unions v. Missouri, 361 U.
S. 363, and the numerous cases cited at
361 U. S. 368,
n. 7 therein.
[
Footnote 2/2]
The District Court's order of June 30, 1964, is printed as
379
U.S. 621appa|>Appendix A.
[
Footnote 2/3]
Appellants interpreted paragraph (3) of the order to mean that
the 1965 legislature could only deal with what was legally
considered to be "legislation." They feared that the legislature
would be unable to conduct investigations, vote pardons, or perform
other similar duties. They also were concerned that, under the
terms of the District Court's order, the 1965 legislature might be
unable to meet in special session if such a session proved
necessary.
[
Footnote 2/4]
This order is printed here as
379
U.S. 621appb|>Appendix B.
[
Footnote 2/5]
Appellees pointed out at the argument that, in the new
legislature which will meet in 1965, 20 of the 54 Senators and 67
of the 205 Representatives will have been newly elected at the
November, 1964, election.
[
Footnote 2/6]
In their Motion to Dismiss, at p. 5, appellees state:
"Before the proposed new constitution can be placed on the
ballot for ratification in any future general election, it must
again be submitted to the General Assembly and passed by an
affirmative two-thirds vote of both houses. This Court has
repeatedly admonished that 'constitutional questions are not to be
dealt with abstractly.' The mere possibility that a similar
constitutional proposal may be passed by the General Assembly at
some future time is an insufficient basis for invoking the awesome
responsibility of constitutional adjudication by this Court.
Without further legislative action, this appeal presents only an
abstract, hypothetical controversy in which the 'lively conflict
between antagonistic demands, actively pressed, which make
resolution of the controverted issue a practical necessity' is
lacking."
(Citations omitted.)
[
Footnote 2/7]
This portion of the District Court's order also rested upon a
determination that under Georgia law the legislature could not
submit to the voters a wholly new constitution in the form of an
amendment to the existing constitution. Questions are raised as to
the correctness of this determination and the propriety of the
District Court's having made it.
See Louisiana Power &
Light Co. v. City of Thibodaux, 360 U. S.
25. In light of my resolution of this case, I would not
reach these questions.
[
Footnote 2/8]
See Baker v. Carr, 369 U. S. 186;
Reynolds v. Sims, 377 U. S. 533, and
companion cases.
[
Footnote 2/9]
See United States v. Alaska S.S. Co., 253 U.
S. 113.
[
Footnote 2/10]
See San Mateo County v. Southern Pac. R. Co.,
116 U. S. 138;
Mills v. Green, 159 U. S. 651;
Jones v. Montague, 194 U. S. 147;
Harris v. Battle, 348 U.S. 803.
[
Footnote 2/11]
Since their motion to dismiss was reserved until the hearing,
appellees have conscientiously argued the merits. However, we
cannot ignore the basic fact that they are not pressing for a
decision on the merits, since they believe they no longer need the
protection of the injunction.
[
Footnote 2/12]
That appellants' argument does not show that this Court should
reach the merits here is further demonstrated by the fact that any
inhibitory effect produced by the District Court's injunction at
issue here would also be produced by that part of the injunction
prohibiting submission of a new constitution only at the 1964
election. Yet appellants concede, as they must, that this Court
would not now review that part of the injunction concerned only
with the November, 1964, election, which has already taken place,
since the new constitution was not submitted to the voters in
November, 1964, and, under Georgia law, it has lapsed, and cannot
be resubmitted.
See Mills v. Green, supra.
[
Footnote 2/13]
Southern Pacific Terminal Co. v. ICC, 219 U.
S. 498;
Federal Trade Comm'n v. Goodyear Tire &
Rubber Co., 304 U. S. 257;
J. I. Case Co. v. Labor Board, 321 U.
S. 332.
|
379
U.S. 621appa|
APPENDIX A TO OPINION OF MR. JUSTICE GOLDBERG,
DISSENTING
FINAL ORDER OF THE COURT OF JUNE 30, 1964
Revised Order.
All parties having consented thereto, the order of the Court
dated June 24, 1964, is hereby revised to read as follows:
It is now Ordered, Adjudged and Decreed as follows:
(1) Article III, Section III, Paragraph I (Code Section 2-1501)
of the Constitution of Georgia of 1945, is hereby declared to be
null, void and inoperative, as being in conflict with the
Fourteenth Amendment to the Constitution of the United States.
Section 47-101 of the Code of Georgia, as amended, is hereby
declared to be prospectively null, void and inoperative, as being
in conflict with the Fourteenth Amendment to the Constitution of
the United States, for elections to the House of Representatives
after the General Election to be held in November of 1964.
(2) The defendants are hereby enjoined from placing on the
ballot to be used in the General Election to be held on November 3,
1964, or at any subsequent election until the General Assembly is
reapportioned in accordance with constitutional standards, the
question whether a constitutional amendment purporting to amend the
present state constitution by substituting an entirely new
Page 379 U. S. 640
constitution therefor shall be adopted; provided, however,
nothing in this order shall prevent the submission of amendments to
the Constitution of the State of Georgia which are separate as to
subject matter, in accordance with Article XIII, Section I, Article
1, of the Constitution of the State of Georgia, 1945. (
See
Hammond v. Clarke, 136 Ga. 313, for a discussion by the
Georgia Supreme Court of what constitutes separate amendments). Nor
shall anything in this order prevent the calling by the General
Assembly of a "convention of the people to revise, amend or change
the constitution" if the representation "in the convention is based
on population as near as practicable" with the members being
elected by the people (
see Article XIII, Section I,
Article 2). Constitution of the State of Georgia, 1945.
(3) The motion of the plaintiffs for further injunctive relief
prior to the conduct of the party primaries or conventions and the
General Election of November 3, 1964, is hereby denied at this
time, provided, however, that notwithstanding anything in Article
III, Section IV, Paragraph I (Code Section 2-1601) of the
Constitution of Georgia of 1945 to the contrary, the service of the
members of the House of Representatives of the General Assembly of
the State of Georgia to be elected at the General Election in
November, 1964, shall be limited to the enactment of such
legislation as shall properly come before the said Legislature
during the regular 1965 45-day session, as provided in the Georgia
Constitution, including such legislation as may be necessary for
the General Assembly to be reapportioned in accordance with
constitutional requirements and as may be necessary to permit the
holding of elections to the newly constituted General Assembly,
said elections to be held at such times as may be necessary to
permit the Members of such General Assembly to take office as soon
as practicable, but in no event later than the second Monday in
January, 1966.
Page 379 U. S. 641
|
379
U.S. 621appb|
APPENDIX B TO OPINION OF MR. JUSTICE GOLDBERG,
DISSENTING
ORDER OF THE DISTRICT COURT OF NOVEMBER 3, 1964
Both parties agree that the motion for alternative relief should
be granted. Therefore, paragraph 3 of the order of June 30, 1964,
is hereby stricken. and the following paragraph 3 is substituted in
lieu thereof:
"(3) The motion of the plaintiffs for further injunctive relief
prior to the conduct of the party primaries or conventions and the
General Election of November 3, 1964, is hereby denied at this
time, provided, however, that, notwithstanding anything in Article
III, Section IV, Paragraph I (Code Section 2-1601) of the
Constitution of Georgia of 1945 to the contrary, the service of the
members of the House of Representatives of the General Assembly of
the State of Georgia to be elected at the General Election in
November, 1964, shall be limited to a term of one year's duration,
and provided further that the plaintiffs shall have the right to
reapply to this Court for further relief should the General
Assembly, which convenes in January, 1965, fail to enact, during
the regular 1965 45-day session, as provided in the Georgia
Constitution, such legislation as may be necessary for the General
Assembly to be reapportioned in accordance with Constitutional
requirements and as may be necessary to permit the holding of
elections to the newly constituted General Assembly during the
calendar year 1965, which elections are to be held at such time as
may be necessary to permit the members of such newly constituted
General Assembly to take office no later than the second Monday in
January, 1966. To the extent that state statutory and
constitutional provisions might otherwise conflict with such
legislative reapportionment, they are hereby declared to be void
and of no effect."
This 3rd day of November, 1964.