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December 13, 1962

James THIGPEN, Plaintiff,
Victor A. MEYERS, Secretary of State of the State of Washington; and John O'Connell, Attorney General of the State of Washington, Defendants, League of Women Voters of Washington, Intervenor

The opinion of the court was delivered by: BEEKS

Population growth generates many problems. This is one of them. Spawned by the historic pronouncement in Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663, this class action is before us challenging the Federal constitutionality of existing legislative and congressional reapportionment in the State of Washington. *fn1" Plaintiff is a registered voter residing in Midway Precinct of King County, a part of the 30th Legislative District and the 7th Congressional District. Defendants are the Secretary of State and the Attorney General of the State of Washington. Intervenor is a non-profit, non-stock corporation of Washington which was permitted to intervene shortly after this proceeding was commenced. *fn2" On July 13, 1962, the Court denied defendants' motion to dismiss the complaint upon the ground that it failed to state a claim upon which relief could be granted. Also at that time the Court denied plaintiff's motion for an order restraining and enjoining defendants from holding any primary election or general election for the offices of the United States House of Representatives, Washington State Senate and Washington State House of Representatives. The case was then continued until November 30, 1962 for trial.

Subsequent to the general election held on November 6, 1962, several pretrial conferences were had and as a result of the industry and diligence of all counsel at that time participating in the case, a final pretrial order was formulated and signed on November 16, 1962. The pretrial order was the product of enlightened and conscientious participation of counsel in full accord with the modern view of the purpose of such proceedings.

 On November 26, 1962, four days prior to trial, the Attorney General of the State of Washington, on his own behalf and on behalf of the defendant Secretary of State, substituted quarterbacks. Prior to this date, the defense had been competently handled by a regularly appointed and acting Assistant Attorney General. On November 26, a specially appointed Assistant Attorney General appeared for the defendants and requested leave to withdraw substantially all of the admitted facts and exhibits set forth in and attached to the pretrial order, although he made no showing whatsoever that they were inaccurate in any respect. This motion was heard by the author of this opinion and it was denied without prejudice to renewal thereof before the entire panel at the time of trial. At the commencement of the trial, the movant was asked by the Court whether he desired to renew his motion, at which time he announced that he was withdrawing it but that he intended to argue, as will more fully appear hereafter, that the Court in deciding this case could not consider the admitted facts and exhibits he had sought to withdraw.

 The Special Assistant Attorney General did so argue, taking the position that in considering the constitutionality of a statute the Court may look only to the face of the statute and to such facts as are susceptible of judicial notice. *fn3" The principal thrust of his argument is that there are insufficient facts of which the Court may take judicial notice, *fn4" and inasmuch as the Court may not consider other evidence, it is unable to adjudicate the issues involved. The mere statement of the argument betrays its weakness. Projected to its logical conclusion, defendants say in effect:

 1. Because there is no statute in Washington requiring records of population within legislative districts which the Court may judicially notice, a court may never declare a Washington apportionment statute invidious, even though the discrimination became oppressive to the point where one person's vote counted 100 times that of his political neighbor.

 2. Discrimination may be perpetuated by legislative inaction. The Washington State Constitution requires the Legislature to provide for an enumeration of inhabitants of the State semi-decennially. *fn5" This has never been done.

 In the legal climate of today, no citizen may acquire a right to a legal status created by unremitting legislative disregard of sacred constitutional rights.

 While it may be true that in some situations such a constitutional issue must be resolved without aid of evidence, it need simply be stated that insofar as the issues here presented are concerned, such is not the law. Gomillion v. Lightfoot, 364 U.S. 339, 81 S. Ct. 125, 5 L. Ed. 2d 110; United States v. Carolene Products Co., 304 U.S. 144, 58 S. Ct. 778, 82 L. Ed. 1234; Chastleton v. Sinclair, 264 U.S. 543, 44 S. Ct. 405, 68 L. Ed. 841; Yick Wo. v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220.

 The population of the State of Washington according to the 1960 Federal census is 2,824,177 persons. The population of the seven congressional districts varies from a low of 342,540 in the 3rd Congressional District (comprising 9 counties in southwest Washington) to a high of 510,512 in the 7th Congressional District (comprising the southern portion of King County, including a portion of the City of Seattle). Thus, the value of an individual vote in the 3rd District is worth 1.5 times the vote of a person in the 7th District.

 It is urged by defendants on the authority of Colegrove v. Green, 328 U.S. 549, 66 S. Ct. 1198, 90 L. Ed. 1432, that a claim of congressional mal-apportionment is nonjusticiable. It is our view that the holding is to the contrary, that the court had jurisdiction but elected not exercise it on the particular facts of that case. Baker v. Carr, supra; Wesberry v. Vandiver, 206 F.Supp. 276 (D.C.Ga.).

 The Constitution and existing laws of the United States do not require congressional apportionment on the basis of population, Wood v. Broom, 287 U.S. 1, 53 S. Ct. 1, 77 L. Ed. 131, and unlike legislative apportionment the Constitution and laws of the State of Washington are silent upon the subject. As was said in Lund v. Mathas, Fla., 145 So.2d 871:

 'Population is one of several important factors in apportionment. The varying interests of an area, including economic elements of topography, geography, means of transportation and industrial, agricultural and resort activities, together with numerous other regional characteristics, are to be considered. * * *'

 This does not mean, however, that the states are free to apportion congressional districts on a discriminatory basis. Wesberry v. Vandiver, supra, ...

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