HERDT v. CIVIL CITY OF JEFFERSONVILLE, INDIANA et al

Filing 44

ENTRY ON 37 DEFENDANTS' MOTION TO DISMISS AMENDED COMPLAINT - Defendants' Motion to Dismiss Amended Complaint is GRANTED. Plaintiff's Amended Complaint is DISMISSED. To the extent that Plaintiff's Amended Complaint raises clai ms for violation of Indiana statutes, those issues are best resolved in state court where there is likely greater expertise and where an appropriate Indiana appellate court can address those important public policy concerns. The Indiana claims are, therefore, DISMISSED, without prejudice. Signed by Magistrate Judge William G. Hussmann, Jr on 7/29/2011. (JLM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
BRUCE HERDT,
Plaintiff,
v.
THE CIVIL CITY OF JEFFERSONVILLE,
INDIANA, THE COMMON COUNCIL
FOR THE CITY OF JEFFERSONVILLE,
INDIANA, RON GROOMS, NATHAN
SAMUEL, MIKE SMITH, ED ZASTAWNY,
KEITH FETZ, CONNIE SELLERS,
BARBARA WILSON, and MAYOR
THOMAS R. GALLIGAN,
Defendants.

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4:10-cv-140-WGH-TWP

ENTRY ON DEFENDANTS’
MOTION TO DISMISS AMENDED COMPLAINT
This matter is before the Honorable William G. Hussmann, Jr., United
States Magistrate Judge,1 on Defendants’ Motion to Dismiss Amended Complaint
filed July 1, 2011. (Docket Nos. 37-38). Plaintiff filed his Response on July 13,
2011. (Docket Nos. 41-42). No reply brief was filed.
I. Legal Standard
In reviewing a motion to dismiss under Rule 12(b)(6), the court must take
the facts alleged in the complaint as true and draw all reasonable inferences in

The parties consented to Magistrate Judge jurisdiction (Docket No. 23), and on
February 18, 2011, United States District Judge Tanya Walton Pratt issued an Order
referring the case to this Magistrate Judge (Docket No. 24).
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favor of the plaintiff. The complaint must contain only “a short and plain
statement of the claim showing that the pleader is entitled to relief,” FED. R. CIV.
P. 8(a)(2), and there is no need for detailed factual allegations. However, the
statement must “give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests,” and the “[f]actual allegations must be enough to
raise a right to relief above the speculative level.” Pisciotta v. Old Nat. Bancorp,
499 F.3d 629, 633 (7th Cir. 2007)(quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
II. Background
On August 6, 2007, the Common Council for the City of Jeffersonville,
Indiana (“Common Council”) adopted Ordinance 2007-OR-10, annexing certain
territory into the City of Jeffersonville, Indiana. (Brief in Support of Motion to
Dismiss at 1). With the annexation of said territory, the City of Jeffersonville
attained a population in excess of 35,000 people, according to the population
data gathered in the 2000 federal decennial census. (Id.). Pursuant to Indiana
Code § 36-4-1-1, a city with a population of 35,000 to 499,999 is defined as a
second class city. (Id. at 1-2). Section 36-4-1-1.1 of the Indiana Code provides
that a city that attains a population of 35,000 remains a third class city until
and unless that city adopts second class status by ordinance. (Id. at 2).
The City of Jeffersonville obtained second class status, pursuant to
Ordinance 2009-OR-45, which was adopted on November 16, 2009. (Brief in
Support of Motion to Dismiss at 2). Upon the City of Jeffersonville becoming a
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second class city, the Common Council was obligated, pursuant to Section
36-4-6-3 of the Indiana Code, to adopt an ordinance to divide the city into six
districts. (Id.). The Common Council adopted such an ordinance, dividing the
City of Jeffersonville into six districts. (Id.).
Plaintiff filed his Amended Complaint essentially alleging that the adoption
of the redistricting ordinance violated the Equal Protection Clause of the
Fourteenth Amendment because “the Common Council knowingly relied upon
outdated and inaccurate population figures derived from the 2000 US Decennial
Census.” (Amended Complaint ¶ 16).
III. Discussion
A. Standing
As a threshold issue, this court must first determine whether or not
Plaintiff has a justiciable claim; specifically whether or not Plaintiff has standing
to bring this Equal Protection claim. Article III of the United States Constitution
confines the judiciary power of the federal courts and sets out the requirement
for Plaintiff to invoke such power by alleging “cases” and “controversies.” See
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d
351 (1992); O'Sullivan v. City of Chicago, 396 F.3d 843, 853 (7th Cir. 2005). The
necessary requirement of actual case and controversy is also known as the
principle of justiciability. O'Sullivan, 396 F.3d at 853; Tobin for Governor v.
Illinois State Bd. of Elections, 268 F.3d 517, 527 (7th Cir. 2001). In O'Sullivan,

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the Seventh Circuit stated that “standing is an aspect of justiciability.”
O'Sullivan, 396 F.3d at 853.
Whether or not the Plaintiff has standing to bring an Equal Protection
claim depends on whether he “has a personal stake in the outcome of the
controversy and whether the dispute touches upon the legal relations of parties
having adverse legal interests.” Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942,
20 L.Ed.2d 947 (1968)(internal citations and quotations omitted). The federal
court must ensure that adverseness between parties exists which would
eliminate reaching beyond the federal court’s power into the state and local
governmental process. O'Sullivan, 396 F.3d at 854. Therefore, Plaintiff has the
burden to demonstrate that the challenged governmental actions had a direct
effect on him apart from claimed interest of third parties or that he is in
immediate danger of sustaining such injury. See Lujan, 504 U.S. at 563; City of
Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S.Ct. 1660, 75 L.Ed.2d 675
(1983).
The United States Supreme Court has explained that “the irreducible
constitutional minimum of standing contains three elements.” Lujan, 504 U.S.
at 560. To establish the standing requirement, the Plaintiff must demonstrate:
(1) that he suffered an ”injury in fact,” which is described as an invasion of a
legally protected interest, that is concrete and particularized, actual or
imminent, and not conjectural or hypothetical; (2) that there is a causal

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connection between the injury and the conduct complained; and (3) that it is
likely that the injury will be redressed by a favorable decision. Id. at 560-61
(internal citations and quotations omitted). The Supreme Court stated that “a
generalized grievance against allegedly illegal governmental conduct” is
insufficient for a standing requirement and has recognized a higher degree of
applicability of the “rule against generalized grievances” in the case of Equal
Protection claims. U.S. v. Hays, 515 U.S. 737, 743, 115 S.Ct. 2431, 132 L.Ed.2d
635 (1995).
Furthermore, the Supreme Court held that the question of standing in a
particular case does not depend on the merits of a plaintiff's claim. Warth v.
Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). “Essentially,
the standing question . . . is whether the constitutional or statutory provision on
which the claim rests properly can be understood as granting persons in the
plaintiff's position a right to judicial relief.” Id.
In this case, Plaintiff states in his Amended Complaint that he is a
permanent resident of the City of Jeffersonville, is a registered voter in Clark
County, Indiana, and resides within the territory annexed into the City of
Jeffersonville by the Annexation Ordinance, in the territory designated as the
sixth councilmanic district by the Redistricting Ordinance. Plaintiff alleges that
he presented the information about the population figures to the Common
Council, but the Common Council disregarded the figures because they had
been derived by the Plaintiff, in part, by the use of engineering techniques which

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included, but were not limited to, the use of aerial photography images. Plaintiff
argues that as a result of the Common Council’s failure to adopt a Redistricting
Ordinance making a proportionate division of population in a manner required
by the United States Constitution and Ind. Code § 36-4-6-3(b)(4), the Common
Council and the Mayor have abridged the rights of the Plaintiff and all other
citizens of the sixth councilmanic district. Plaintiff alleges that these actions
have deprived all citizens of the sixth councilmanic district of their equal
protection rights, because they will not have their vote weighted equally with
those of other citizens in the election of members of the council elected by
district (rather than at large). Plaintiff further asserts that he and all other
citizens residing in the sixth councilmanic district will continue to be deprived of
their right to have their votes weighted equally with those of other citizens in the
election of members of the council unless the court grants him a review. Plaintiff
also claims that he and all other citizens and registered voters in the sixth
councilmanic district of the City of Jeffersonville will suffer irreparable and
unconstitutional dilution of their votes in the 2011 election unless this court
compels the division of the city precincts into six more or less equal
councilmanic districts.
In light of the principles stated by the Supreme Court in Lujan, the court
concludes as follows. First, Plaintiff has asserted that he suffered an invasion of
a legally protected interest. In particular, Plaintiff’s right to have his vote
weighted equally with those of other citizens in the election of members of the

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council is concrete and particularized, actual, and imminent. Second, Plaintiff
alleges that there is a causal connection between the injury and the conduct of
the Common Council. Third, it is likely that the relief Plaintiff seeks would
remedy his alleged injury. The court, therefore, concludes that Plaintiff does
have standing to bring his Equal Protection claim.
B. Plaintiff’s Equal Protection Claim
The Equal Protection Clause of the Fourteenth Amendment clearly
establishes that “the fundamental principle of representative government in this
country is one of equal representation for equal numbers of people . . . .”
Reynolds v. Sims, 377 U.S. 533, 560-61, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964).
This principle has come to be known as “one-person, one-vote.” This guarantee
“extends not only to congressional districting plans . . . but also to local
government apportionment.” Board of Estimate of City of New York v. Morris, 489
U.S. 688, 692, 109 S.Ct. 1433, 103 L.Ed.2d 717 (1989). In order to meet the
standards of one-person, one-vote, a state or local government “must make an
honest and good-faith effort to construct its districts as nearly of equal
population as is practicable, but ... absolute equality [is] a practical
impossibility.” Gaffney v. Cummings, 412 U.S. 735, 743, 93 S.Ct. 2321, 37
L.Ed.2d 298 (1973)(internal quotations omitted).
The question presented by Plaintiff is whether or not a local government
must conduct a new population count in between decennial censuses in order to
comply with the Equal Protection Clause’s requirement of one-person, one-vote.
The Seventh Circuit in Political Action Conference of Illinois v. Daley, 976 F.2d
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335, 339-40 (7th Cir. 1992), concluded that the use of census numbers (even
“old” census numbers which had very recently been superceded by a new
census) satisfied the requirements of the Equal Protection Clause. The Seventh
Circuit explained that “decennial reapportionment satisfies the Constitution,
even though there undoubtedly will be some imbalance in the population of each
district towards the end of the decennial period.” Id. The Seventh Circuit relied
on the Supreme Court’s reasoning in Reynolds, which explained:
Decennial reapportionment appears to be a rational approach to
readjustment of legislative representation in order to take into
account population shifts and growth. Reallocation of legislative
seats every 10 years coincides with the prescribed practice in 41 of
the States, often honored more in the breach than the observance,
however . . . . Limitations on the frequency of reapportionment are
justified by the need for stability and continuity in the organization
of the legislative system, although undoubtedly reapportioning no
more frequently than every 10 years leads to some imbalance in the
population of districts toward the end of the decennial period and
also to the development of resistance to change on the part of some
incumbent legislators. In substance, we do not regard the Equal
Protection Clause as requiring daily, monthly, annual or biennial
reapportionment, so long as a State has a reasonably conceived plan
for periodic readjustment of legislative representation. While we do
not intend to indicate that decennial reapportionment is a
constitutional requisite, compliance with such an approach would
clearly meet the minimal requirements for maintaining a reasonably
current scheme of legislative representation. And we do not mean to
intimate that more frequent reapportionment would not be
constitutionally permissible or practicably desirable. But if
reapportionment were accomplished with less frequency, it would
assuredly be constitutionally suspect.
Reynolds, 377 U.S. at 583-84. While use of census data as the means for
drawing districts is constitutionally sound, the failure to use such data could be

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suspect. Kirkpatrick v. Preisler, 394 U.S. 526, 535, 89 S.Ct. 1225, 22 L.Ed.2d
519 (1969). The Supreme Court, in Kirkpatrick, acknowledged that there could
be circumstances in which a legislative body took into account “projected
population shifts” in drawing legislative districts, thereby disregarding the actual
census data:
Situations may arise where substantial population shifts over such a
period can be anticipated. Where these shifts can be predicted with
a high degree of accuracy, States that are redistricting may properly
consider them. By this we mean to open no avenue for subterfuge.
Findings as to population trends must be thoroughly documented
and applied throughout the State in a systematic, not an ad hoc,
manner.
Kirkpatrick, 394 U.S. at 535.
Plaintiff, in this case, acknowledges that Defendants used the census
numbers as a basis for reapportionment. Plaintiff argues that the use of the
census figures was not constitutionally permissible because the census numbers
no longer accurately reflected the true population of the six districts. Plaintiff’s
argument is without merit. Under the one-person, one-vote doctrine, Plaintiff
must allege, using the actual 2000 census numbers that the Common Council
used, that the districts were improperly reapportioned.2 The fact that the

In fact, as discussed in Kirkpatrick, if the Common Council had done as Plaintiff
requested and actually disregarded the 2000 census numbers, their actions could have,
themselves, been unconstitutional. Plaintiff alleges that population trends in the sixth
councilmanic district caused the actual numbers to be different from the 2000 census
numbers. According to Kirkpatrick, the only constitutional way that these changes in
population trends could have been taken into account in redistricting would have been
by conducting a thoroughly documented, systematic, state-wide count. However, nothing
in Kirkpatrick requires the use of new population numbers instead of the census numbers.
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Common Council used the 2000 census as the basis for reapportioning the six
councilmanic districts is constitutionally sound under Daley. Because Plaintiff
does not allege that there was a violation of the one-person, one-vote doctrine
with the use of the 2000 census numbers, his claim must be dismissed.
IV. Conclusion
For these reasons, Defendants’ Motion to Dismiss Amended Complaint is
GRANTED. Plaintiff’s Amended Complaint is DISMISSED. To the extent that
Plaintiff’s Amended Complaint raises claims for violation of Indiana statutes,
those issues are best resolved in state court where there is likely greater
expertise and where an appropriate Indiana appellate court can address those
important public policy concerns. The Indiana claims are, therefore,
DISMISSED without prejudice.
SO ORDERED.
__________________________
William G. Hussmann, Jr.
United States Magistrate Judge
Southern District of Indiana

Dated: July 29, 2011

Electronic copies to:
Michael A. Gillenwater
GILLENWATER LAW OFFICES
[e-mail]
Mickey Kevin Weber
WEBER & WEBER
[e-mail]

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