CALDERON v. CITY OF LOS ANGELES

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Court of Appeal, Second District, Division 1, California.

Richard M. CALDERON, John McKee Pratt and Mildred L. Walters, on their own behalf and on behalf of all other Inhabitants, Taxpayers and Voters of the City of Los Angeles, similarly situated, Petitioners, Plaintiffs and Appellants, v. The CITY OF LOS ANGELES, a municipal corporation, Defendant and Respondent.

Civ. 34110.

Decided: March 13, 1970

Lawrence William Steinberg, Beverly Hills, A. L. Wirin, Fred Okrand, and Laurence R. Sperber, Los Angeles, for petitioners, plaintiffs and appellants. Roger Arnebergh, City Atty., Bourke Jones and James A. Doherty, Asst. City Attys., and Thomas C. Bonaventura, Deputy City Atty., for defendant and respondent.

This is an appeal by plaintiffs, suing on behalf of themselves ‘and all other inhabitants, taxpayers and voters of the City of Los Angeles,’ from a judgment entered upon the granting of defendant's motion (subsequent to the filing of its answer) for judgment on the pleadings. By such judgment it was determined that plaintiffs' pleadings failed to state facts sufficient to constitute a cause of action for the declaratory relief prayed for therein, namely, a judicial declaration that existing charter provisions, and ordinances passed thereunder, as to councilmanic district apportionment, purporting to district the City on a basis of voter registration and not upon a population basis, are constitutionally invalid.1 More particularly, it is contended that defendant's scheme of apportionment constitutes a deprivation of rights under the Equal Protection Clause of the Fourteenth Amendment in the light of Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663; Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, and subsequent decisions in accord therewith.

Preliminarily, it is now established that the trial court may adjudicate the parties' respective contentions upon a motion for judgment on the pleadings and may enter a judgment expressly decreeing that the plaintiff is not entitled to the favorable declaration sought. (Aarons v. Brasch, 229 Cal.App.2d 197, 199, 40 Cal.Rptr. 153.) While the judgment here challenged did not expressly so decree, the effect of the ruling granting defendant's motion is a denial of the declaratory relief demanded. The motion having been made on the ground that ‘no cause of action has been stated [by plaintiffs],’ it was tantamount to a general demurrer attacking the sufficiency of the complaint to state a cause of action. (Wilson v. Board of Retirement, 156 Cal.App.2d 195, 200, 319 P.2d 426, 431.) ‘A motion by defendant for judgment on the pleadings operates as a general demurrer to the complaint, and the averments of the complaint, for the purpose of the motion, must be treated as true, and the motion should be granted where no material issue is joined which it is necessary to prove. [Citation.]’ (Davis v. City of Santa Ana, 108 Cal.App.2d 669, 685, 239 P.2d 656, 665.)

An answer was filed by defendant before it moved for judgment on the pleadings. It contains denials of the allegations pleaded in the complaint, but it also contains admissions of certain matters therein alleged. Thus the question arises whether such an answer may be used to support a complaint in opposition to defendant's motion for judgment on the pleadings. We note the paucity of California decisional law governing the problem (Estate of Supple, 247 Cal.App.2d 410, 415, 55 Cal.Rptr. 542), particularly the reference in the cited case to Witkin's comment that ‘ordinarily, admissions in the answer ought to be considered, either directly, or indirectly by giving the plaintiff an opportunity to amend the complaint in conformity therewith.’ (2 Witkin, Cal. Procedure, pp. 1704–1705.) In the present case no such opportunity was given. Too, defendant failed to interpose any demurrer to plaintiffs' pleading. In their brief plaintiffs now complain that ‘they never got an opportunity to make a still stronger record, demonstrating [the] racial and economic discrimination involved’; and, after reference to Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376, that ‘the lower court simply rejected the cause entirely, granted no relief, and retained no jurisdiction.’

Cited by Witkin (2 Witkin, Cal. Procedure, pp. 1709–1710) for the effect of a party's failure to file a general demurrer upon a subsequent motion by such party for judgment on the pleadings is MacIsaac v. Pozzo, 26 Cal.2d 809, 815–816, 161 P.2d 449, wherein it was determined, by analogy to section 472c, Code of Civil Procedure (governing the reviewability of orders sustaining a demurrer without leave to amend), that the question remains open on appeal whether the court abused its discretion in granting a motion for judgment on the pleadings even though no request to amend the defective pleadings was made. In that case, however, it appears that no notice had been given of plaintiffs' intention to move for judgment; when the case came on for trial, they summarily moved for judgment on the pleadings upon the ground that the cross-complaint stated no cause of action against them and that the answer to the complaint raised no issue of law whatever. The motion having been granted, even though defendants requested leave to amend, it was held that under such circumstances defendants were not bound to appear at the time of trial armed with the proposed amendments to their pleadings and that the trial court in effect abused its discretion in ruling as it did. But the reviewing court went further; relying on section 472c, Code of Civil Procedure, supra, it was concluded that even though no request to amend had been made, defendants could nonetheless have contended on appeal that the court abused its discretion in granting the motion. To the same general effect is Faulkner v. Cal. Toll Bridge Authority, 40 Cal.2d 317, 331–332, 253 P.2d 659. If, as MacIsaac declares, the problem here is the same as though a demurrer had been sustained without leave to amend, the burden nevertheless rests upon an appellant to show an abuse of discretion and a reviewing court should reverse only when such abuse is manifest. (Schultz v. Steinberg, 182 Cal.App.2d 134, 140, 5 Cal.Rptr. 890.) As stated in that case, ‘Abuse of discretion is not shown where it is not indicated as to the manner in which it is proposed to amend nor the nature of the proposed amendment. [Citations.]’ (Pp. 140–141, 5 Cal.Rptr. at 895.) Except for the two statements hereinbefore quoted in full, neither before the trial court (although on notice of defendant's pending motion) nor before this court have plaintiffs indicated the nature of any proposed amendment or the manner in which they would amend their complaint. Since it is settled that a party has not shown reversible error when he fails to take the necessary steps above indicated (Filice v. Boccardo, 210 Cal.App.2d 843, 847, 26 Cal.Rptr. 789), we proceed to the merits.

The scheme of councilmanic district apportionment, alleged by plaintiffs to be constitutionally impermissible, is contained in Article II, section 6, of defendant's Charter, as amended in 1963 and reading in part as follows:

‘(2) The members of the Council shall be elected by districts, as follows:

‘(a) Between the dates of July 1 and September 15 of each fourth year, commencing with the year 1964, the Council shall, by ordinance, which shall be effective upon publication notwithstanding any other provision of the Charter to the contrary, redistrict the City into fifteen (15) districts and such districts shall be used for all elections of councilmen, including their recall, and for filling any vacancy in the office of member of the Council by appointment, subsequent to the effective date of such ordinance and until new districts are established. Districts so formed shall not deviate in the number of voters by more than ten percent above or below one–fifteenth of the total number of registered voters in the City of Los Angeles at the close of registration for the direct primary state election held during the year in which such districts are to be established, and as nearly as practicable such districts shall be bounded by natural boundaries or street lines. No change in the boundary or location of any district by redistricting as herein provided shall operate to abolish or terminate the term of office of any member of the council prior to the expiration of the term of office for which such member was elected or appointed. Any territory hereafter annexed to or consolidated with the City of Los Angeles shall, prior to completion of the proceedings therefor, be added to an adjacent district or districts by the Council by ordinance. * * *’

It is alleged by plaintiffs that the use of the foregoing councilmanic apportionment plan has resulted in ‘heavy inequities and over-representation and under-representation of people residing in the various districts.’ In support of this allegation and marked Exhibit A is a ‘Chart’ showing the population and voter registration figure, respectively, for each of the fifteen districts; the population figures are alleged to be the ‘census tract estimates' of each district as of October 1, 1967, having been computed through the Los Angeles Planning Commission, while the registered voter figures are based upon data on file with the Elections Division of the Los Angeles City Clerk as of April 11, 1968. This exhibit is alleged to illustrate the following inequities causative of racial discrimination. In District Nine, containing a very substantial number of Mexican and black American inhabitants, there was a population of 236,904 persons of whom only 66,039, or 29%, were registered voters. Also, in District Fifteen, composed mostly of black American inhabitants, the population numbered 227,104 of whom 72,416, or 30%, were registered voters. On the other hand, in District Two, with mostly white American inhabitants, there was a population of 148,857, of whom 78,288, or 53%, were registered to vote.

Plaintiffs further alleged that on or about July 31, 1968, an ordinance was passed by defendant's council and sent to its Mayor for consideration which provided for redistricting. A copy of the proposed ordinance is attached to the pleading (Exh. B) as is a table (Exh. C) listing the number of registered voters under ‘Existent Apportionment’ and under the ‘Proposed Apportionment’ effective under the new ordinance (Exh. B). It is alleged that only relatively minor changes in the number of registered voters for each district resulted from the passage of the ordinance pleaded.

The cause of action for declaratory relief concludes with allegations that the several enactments violate the equal protection provisions of the Fourteenth Amendment for the reason that councilmanic apportionment can be achieved only on the basis of the population actually contained within the various districts of defendant City. Since the foregoing contentions are disputed by defendant, an actual controversy allegedly has arisen requiring resolution by a judgment determining the parties' rights and duties in the premises.

By its answer, which includes certain denials and admissions, defendant affirmatively alleges that voter registration is an appropriate basis for apportioning its councilmanic district although, at the same time, admitting that population is likewise a proper basis for such apportionment. Alleging further that it has complied with all necessary constitutional requirements in respect to all matters complained of by plaintiffs, the answer traces the legislative history of the various enactments governing the problem, all of which, defendant argues, ‘demonstrate a continuous and conscientious effort to attain equal representation for each Council district.’ Thus, from 1909 to 1925 the charter provided for election of councilmen at-large, two years residence in the city being required; commencing in 1925 the council was required to redistrict the city every four years into fifteen districts, comprising ‘as nearly as practicable an equal number of voters' as determined by the total number of votes cast for governor in said districts at the last preceding state election; in 1933 the residence requirement for councilmen, two years in the city, was amended to two years within the district; finally, in 1963 another amendment provided (as shown above) that ‘Districts so formed shall not deviate in the number of voters by more than ten percent above or below one-fifteenth of the total number of registered voters in the City of Los Angeles at the close of registration for the direct primary state election held during the year in which such districts are to be established. * * *’

Reynolds v. Sims, supra, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, restated traditional guidelines for testing the validity of a legislative apportionment under the Equal Protection Clause: ‘We indicated in Baker, * * * that the Equal Protection Clause provides discoverable and manageable standards for use by lower courts in determining the constitutionality of a state legislative apportionment scheme, and we stated:

“* * * Judicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if on the particular facts they must, that a discrimination reflects no policy, but simply arbitrary and capricious action.” (84 S.Ct. at 1379, 12 L.Ed.2d at p. 524.)

The ‘discrimination’ in such cases must be an ‘invidious' one (Reynolds v. Sims, supra, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d at p. 527; Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45, 53), which results, for example, when a state ‘selects ‘a particular race or nationality for oppressive treatment.’ [Citation.]' (Concurring opinion of Douglas, J. in Baker v. Carr, supra, 369 U.S. 186, 82 S.Ct. 691 at 724, 7 L.Ed.2d 663 at p. 702.) In the present case, the complaint expressly alleges that defendant's system of apportionment accords oppressive treatment to Mexican Americans and black Americans by ‘over-representation and under-representation of people residing in the various districts.’ As indicated by plaintiffs' Exhibit A, the voter registration basis for apportionment resulted in wide differences in population between the various councilmanic districts. In its answer defendant admits that population ‘estimates' for the fifteen districts were compiled by the Planning Commission although, as argued in its brief, no admission was made of the ‘actual population variances amongst the council districts.’ According to defendant, no allegation was made by plaintiffs as to the authoritative worth of such estimates either as a basis for demonstrating inequality or as a basis for future councilmanic reapportionment; too, before any reliance could be placed upon these estimates, it would be necessary to allege how the figures were arrived at by the Planning Commission.2 Defendant admits the general accuracy of Exhibit C showing only minor changes in the number of registered voters made by the later ordinance (Exh. B) which, apparently, has since passed into law.

But even if it be conceded that the admitted ‘estimates' set forth in Exhibit A may be used to support a claim of inequality, defendant points out that such ‘estimates' still do not establish the existence of the ‘invidious discrimination’ which is constitutionally proscribed. The ‘one man, one vote’ principle should not be read literally, necessarily excluding infants, aliens or other citizens otherwise disqualified. In this connection, plaintiffs have filed no brief or other document rebutting the claims urged by the following illustrations submitted by defendant, nor do we believe that such illustrations are lacking in substance. Thus, comparison between District Eight, substantially populated by black American and Mexican American inhabitants, and District Twelve, populated mostly by Caucasians, demonstrates the absence of racial discrimination:

Again, in Districts Eight, Nine and Eleven (where plaintiffs reside) the following figures afford no grounds for similar claims asserted by plaintiffs:

With plaintiffs rested the burden of showing that the variance of the ratio between registered voters and actual population was both substantial and due to some oppressive action on defendant's part. In the following discussion we demonstrate that the mere fact that a certain measure of inequality results from the formula here challenged does not warrant the claim that the Equal Protection Clause is thereby violated.

In Reynolds v. Sims, supra, 377 U.S. 533, 84 S.Ct. 1362, 1390, 12 L.Ed.2d 506, 536, the court declared: ‘We realize that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters. Mathematical exactness or precision is hardly a workable constitutional requirement.’ Recognizing the need for flexibility on the state level, the court went on to say that ‘What is marginally permissible in one State may be unsatisfactory in another, * * *’ (84 S.Ct. at 1390, 12 L.Ed.2d at p. 537.) With respect to local legislative bodies, an even greater departure from a strict population basis has been held to be constitutionally permissible. Such was the holding in Avery v. Midland County, supra, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45, wherein the court stated: ‘We hold today only that the Constitution permits no substantial variation from equal population in drawing districts for units of local government having general governmental powers over the entire geographic area served by the body.

‘This Court is aware of the immense pressures facing units of local government, and of the greatly varying problems with which they must deal. The Constitution does not require that a uniform strait-jacket bind citizens in devising mechanisms of local government suitable for local needs and efficient in solving local problems. Last Term, for example, the Court upheld a procedure for choosing a school board that placed the selection with school boards of component districts even though the component boards had equal votes and served unequal populations. Sailors v. Board of Education, [of Kent County] 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967). * * * In Dusch v. Davis [sic] 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656 (1967), the Court permitted Virginia Beach to choose its legislative body by a scheme that included at-large voting for candidates, some of whom had to be residents of particular districts, even though the residence districts varied widely in population.

‘The Sailors and Dusch cases demonstrate that the Constitution and this Court are not roadblocks in the path of innovation, experiment, and development among units of local government. * * * Our decision today is only that the Constitution imposes one ground rule for the development of arrangements of local government: a requirement that units with general governmental powers, * * * not be apportioned among single-member districts of substantially unequal population.’ (88 S.Ct. at 1120–1121, 20 L.Ed.2d at pp. 53–54.)

Since Avery holds that not every departure from a strict population count is constitutionally doomed, again the burden was with plaintiff to allege that in measuring representation by registered voters instead of population, a substantial disparity in the relative value of votes in the several Districts resulted. The variance here alleged by plaintiffs is hardly comparable with that in Avery where one single-member district had a population of as much as 67,906, while the populations of three other districts numbered 852, 414 and 828, respectively. Since plaintiffs have insisted that apportionment must be based on population alone, it was not enough for them to allege substantial inequality solely by reference to a population estimate whose reliability was neither admitted nor demonstrated.

Furthermore, there apparently has been no decision which holds that registration is not a permissible alternative to the population basis for which plaintiffs contend. In Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519, although confronted with an opportunity to do so, the court did not indicate its disapproval of apportionment based on registration with respect to congressional districting. Referring to the ‘as nearly as practicable standard’ of Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481, the court stated: ‘* * * the command of Art. I, § 2, that States create congressional districts which provide equal representation * * * permits only the limited population variances which are unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown.’ (89 S.Ct. at 1229, 22 L.Ed.2d at p. 525.) Too, in at least two cases courts have held squarely that apportionment may be based on something other than total population. (See Holt v. Richardson, D.C., 238 F.Supp. 468; Buckley v. Hoff, D.C., 243 F.Supp. 873.) In Buckley, the district court approved a plan by which the Senate was apportioned on the basis of total residents, and the House was apportioned on the basis of registered voters. In support of its holding that the Equal Protection Clause permits the use of either total residents or of registered voters as a base for apportionment, the court stated: ‘In Reynolds v. Sims, * * * and four companion decisions, the Supreme Court reviewed apportionment plans which were based on total residents, and nowhere was it intimated that the five plans were for that reason unconstitutional. * * * As for the use of a registered voter base, it is entirely consistent with Reynolds v. Sims, * * * in which the Supreme Court repeatedly discussed the Equal Protection Clause in terms of equality of voting rights among qualified citizens.

‘Nor need we rely only on inferences. In Reynolds v. Sims, * * * the Supreme Court explicitly stated:

“[T]he Equal Protection Clause requires that a State make an honest and good faith effort to construct districts * * * as nearly of equal population as is practicable. We realize that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters. * * *'

‘We interpret this statement as a general endorsement of the use of either ‘residents' or ‘voters' as a base for legislative apportionment. Cf. WMCA, Inc. v. Lomenzo, supra. D.C., 238 F.Supp. 916, at 925.’ (243 F.Supp. at p. 875.)

Although they are cited by neither party to this litigation, three cases have been decided which, on their facts, reach a result contrary in part to that reached in Buckley: Ellis v. Mayor and City Council of Baltimore, D.C., 234 F.Supp. 945, affirmed in Ellis v. Mayor and City Council of Baltimore, 4 Cir., 352 F.2d 123, and Kapral v. Jepson, D.C., 271 F.Supp. 74. Unlike the situation here, however, certain statistics are set forth in each opinion which, by stipulation of all concerned, were considered to be correct. Thus, in the two Ellis cases the parties agreed on the accuracy of both the voter registration and population figures therein mentioned, while in Kapral the population accuracy of the five districts, taken from the 1960 federal census, was similarly unchallenged. In the second Ellis case (352 F.2d 123), based upon the uncontradicted statistical information before it, the court stated: ‘When we look to the impact of a registered voter test on the representation accorded the total populations of the Fourth and Fifth Districts we find disparity exceeding 33%. This is no insignificant departure from the criterion of population made mandatory by the Constitution as interpreted by the Supreme Court.’ (P. 129.) However, the court continued as follows: ‘This is not to say that no departure whatsoever from strict population count is ever permissible; but when the formula adopted results in more than a minor deviation, it is at once suspect. [Citation.]’ (P. 129.) In Kapral, there is this pertinent statement: ‘Legislative districting or apportionment achieved by use of a registered voters basis may well satisfy the equal protection clause if it produces a distribution of legislators not substantially different from that which would have resulted from the use of a permissible population basis. But a specific factual finding to that effect would be required before apportionment based on numbers of registered voters could be said to comport with federal constitutional standards. The record in the instant case, at this stage of the proceedings, does not support such a finding.’ (271 F.Supp. p. 80.)

In light of the statement from Kapral, just quoted, how could a proper factual finding be made in the present case based on mere ‘estimates' in the absence of appropriate pleading as to how such ‘estimates' were reached? The same problem is presented with respect to the statement from Ellis, also just quoted, that a formula ‘is at once suspect’ when it ‘results in more than a minor deviation.’ Further with regard to the second Ellis case, decided in 1965, subsequent decisions of the United States Supreme Court3 do not apparently adhere with strict accord to the reasoning on which it was predicated. For example, in Davis v. Dusch an earlier decision of the same court (4 Cir., 361 F.2d 495) was reversed, said earlier decision being expressly predicated on the proposition (stated in Reynolds v. Sims and quoted in the second Ellis case) that “‘the fundamental principle of representative government in this country is one of equal representation for equal numbers of people [emphasis added] without regard to race, sex, economic status, or place of residence within a State.”’ (361 F.2d at p. 497.) The court reversed, declaring that the constitutional test is whether there is an ‘invidious' discrimination and, upon the record, no such discrimination could be found even though there was a tremendous variance, population-wise, among the seven boroughs in question: Bayside with a population of 29,048 and Blackwater which numbered only 733 persons. The above result was reached notwithstanding the court's observation (fn. 5) that if the percentage of qualified voters is in accord with the population, two boroughs (if united in their efforts) could elect all eleven councilmen even though the election were at-large. Accordingly, while there should be some correlation of registered voters with population (as emphasized at oral argument), such correlation is dependent upon the circumstances of each case.

Finally, we take note of the most recent decision of the United States Supreme Court relative to the ‘one man, one vote’ principle: Hadley v. Junior College District, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (February 25, 1970). While not dealing with the specific problem presented here, local apportionment based on voter registration, the following statement in the opinion is not inappropos: ‘This Court has consistently held in a long series of cases [citing Wesberry, supra; Reynolds, supra; Avery, supra; and Burns v. Richardson, supra] that in situations involving elections, the States are required to insure that each person's vote counts as much, insofar as it is practicable, as any other person's. We have applied this principle in congressional elections, state legislative elections, and local elections.’ (Emphasis added; supra, p. 4162.) There is the further statement, not wholly inapplicable here, that ‘a State may, in certain cases, limit the right to vote to a particular group or class of people. As we said before, ‘[v]iable local governments may need many innovations, numerous combinations of old and new devices, great flexibility in municipal arrangements to meet changing urban conditions. We see nothing in the Constitution to prevent experimentation.’ Sailors, supra, 387 U.S. at 110–111.' (Supra, p. 1464.) Although in agreement with the suggestion of Chief Justice, dissenting, that ‘the Court's opinion today fails to give any meaningful guidelines,’ the ‘general rule’ discussed therein requires, in our view, an affirmance of the judgment here challenged.

In summary, plaintiffs have attempted to plead a cause of action showing invidious discrimination inherent in the pertinent provisions of defendant's Charter and seeking a declaratory judgment to that effect. Impliedly, if not expressly, they have declined to amend when confronted with defendant's challenge to the accuracy of the population figures relied on even though, as appears from cases already mentioned, a somewhat stronger showing must be made with respect to local agencies. Earlier in this opinion we noted that defendant's motion for judgment on the pleadings was in the nature of a general demurrer to plaintiffs' complaint; that being so we are persuaded that the following rule should be applied, i. e., that ‘while a liberal interpretation is permitted by section 452 of the Code of Civil Procedure, yet it is also true that a pleading is to be construed most strongly against the pleader, and in the absence of a contrary allegation, no intendment can be indulged in that the pleader has not stated his case as strongly as it is possible to do. [Citation.]’ (Lavine v. Jessup, 161 Cal.App.2d 59, 64–65, 326 P.2d 238, 243.) The foregoing rule is peculiarly applicable here in view of plaintiffs' failure to indicate to this court the nature of any proposed amendment which would enable them to ‘make a still stronger record’ showing the asserted invidious discrimination complained of.

The judgment is affirmed.

I dissent.

The Fourteenth Amendment to the United States Constitution contains the Equal Protection Clause which provides that no state shall ‘deny to any person within its jurisdiction the equal protection of the laws'. While I agree with the dissent of Mr. Justice Harlan that the decision was ‘both unjustifiable and ill-advised’, the United States Supreme Court has held that the Equal Protection Clause ‘permits no substantial variation from equal population in drawing districts for units of local government having general governmental powers over the entire geographic area served by the body’. (Avery v. Midland County, Texas (1968) 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45.) There is no claim that the City of Los Angeles is not such a unit of local government. The sole question is, therefore, whether plaintiffs have alleged sufficient facts to show that the 1968 redistricting of the city resulted in ‘substantial variation from equal population in drawing districts'.

Plaintiffs' complaint alleges that the City of Los Angeles itself as of October 1, 1967 (a few months before the redistricting), estimated that if each of the 15 districts were absolutely equal in population, each district would have a population of 189,399 persons. The complaint further alleges that as redistricted the districts range in population from 148,857 to 236,904. Using the terminology of Kirkpatrick v. Preisler (1969) 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519, the most populous district was 25.08 percent above the mathematical ideal, and the least populous district was 21.40 percent below the mathematical ideal. In Kirkpatrick a variation from the ideal of 3.13 percent in congressional redistricting was held not to meet the standard of equal representation for equal numbers of people ‘as nearly as practicable’. Recognizing that the standard of equality ‘as nearly as practicable’ is probably more strict than the standard of ‘no substantial variation from equal population’, I cannot bring myself to believe that the variations from the ideal in the case at bench are not substantial.

In Ellis v. Mayor and City Council of Baltimore (1965) 4 Cir., 352 F.2d 123 redistricting in a manner in which each councilman would represent an equal number of persons would have resulted in a situation where each councilman would have represented 46,951 persons. As actually redistricted, however, the number of persons represented ranged from 34,367 to 56,930. This represented a percentage variation from the ideal of from 26.80 percent below to 21.25 percent above the ideal. The redistricting was held to violate the Equal Protection Clause. That case was cited by the United States Supreme Court without disapproval in Avery v. Midland County, Texas (1968) 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45.

It is not surprising in the case at bench that the districts are substantially unequal in population because the City of Los Angeles made no attempt to use population as the basis of redistricting. Instead it used ‘the total number of registered voters in the City of Los Angeles at the close of registration for the direct primary state election held during’ 1968. It is obvious that total population is not reflected by the number of registered voters at any given time. Los Angeles County had a population of 6,038,771 persons in 1960 and 3,011,379 registered voters. In 1970, according to the latest population estimates by the Department of Finance of the State of California, the population was at least 7,000, 800 and there were 2,816,246 registered voters. One explanation, of course, is that 1960 was a presidential election year, whereas 1970 is not.

The court relies on two cases for the proposition that redistricting can be based upon voter registration. The first is Holt v. Richardson (1965) D.C., 238 F.Supp. 468. The court neglects to mention that when this case reached the United States Supreme Court, it was held that apportionment on the basis of registered voters ‘satisfies the Equal Protection Clause only because on this record it was found to have produced a distribution of legislators not substantially different from that which would have resulted from the use of a permissible population basis'. (Burns v. Richardson (1966) 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376.) The second case is Buckley v. Hoff (1965) D.C., 243 F.Supp. 873. The court neglects to mention that this decision by the United States District Court was examined and rejected by the United States Court of Appeals for the Fourth Circuit in Ellis.

The court finds comfort in Kirkpatrick v. Preisler (1969) 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 on the basis that ‘although confronted with an opportunity to do so, the court did not indicate its disapproval of apportionment based on registration with respect to congressional districting’. Kirkpatrick did not discuss registered voters vis-a-vis total population, but rather ‘eligible voter population’ vis-a-vis total population. Burns v. Richardson (1966) 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376, clearly recognizes the distinction between ‘voter population or citizen population’ and registered voters. Voter population or citizen population excludes ‘aliens, transients, short-term or temporary residents, or persons denied the vote for conviction of crime’ and others ineligible to register to vote, whereas registered voters are only those eligible to register who have in fact registered. The court recognized that there may be sudden and substantial fluctuations in the number of registered voters in a given election caused by such fortuitous factors as a peculiarly controversial election issue, a particular candidate, or even weather conditions. In that case it affirmatively appeared from the report of the convention fixing a registered voters standard that this fairly reflected ‘citizen [or voter] population as much as total population’. In the case at bench, the Charter provision in question does not purport to correlate registered voters with either citizen (or voter) population or total population and makes no provision for adjustment where no correlation exists.

In my opinion a considerable amount of confusion was created by the loose language in Reynolds v. Sims (1964) 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506. There the court said that ‘the overriding objective must be substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the State’. In the first place, equality of total population of which the court was speaking bears no relationship to the weight of the vote of the particular person. A given district may have a much higher percentage of persons ineligible to register to vote than another district. In the second place, even if the court had been speaking about registered voters rather than total population, the vote of a given person would be ‘equal in weight to that of any other citizen’ only if every registered voter actually voted. This never happens. There are often tremendous variations in the percentages from district to district of the registered voters who actually vote in a given election. This results, of course, in one person's vote having a greater weight than another person's vote. Some of the confusion has since been eliminated by subsequent decisions of the United States Supreme Court. For example, in Avery v. Midland County, Texas (1968) 390 U.S. 474, 88 S.Ct. 1114, 20 L.E.2d 45, the court explained Reynolds as deciding that every qualified resident ‘has the right to a ballot for election of state legislators of equal weight to the vote of every other resident, and that right is infringed when legislators are elected from districts of substantially unequal population’. As I read that and other cases, the standard to be met in drawing districts is to create districts of substantial equality in total population. If that is accomplished, any person who meets the qualifications of a voter has not been denied equal protection regardless of whether he registers to vote or actually votes. Where one district has a greater percentage of children, aliens, transients and others not qualified to vote as opposed to another district, the weight of a vote in the first district would be more than that of a vote in the other district if all persons qualified to vote registered and voted. Given the political facts of life, there is no real inequality in that situation. In the case at bench, for example, a city councilman is not likely to ignore the needs and wishes of those within his district who are under 21 years of age, aliens, military personnel, college students or others not qualified to register to vote. Many of those may ultimately become eligible to register. Children become adults, aliens become citizens and military personnel and college students change their residences to the district represented by the councilman. Moreover, as was demonstrated in the 1968 presidential election, many persons ineligible to vote may participate in a campaign and help or hurt a candidate.

Another element of confusion which has permeated this case from the beginning to this stage is the language of the United States Supreme Court in many cases that discrimination does not offend the Equal Protection Clause unless it is ‘invidious'. Thus the plaintiffs alleged, as noted by the court, that the redistricting discriminated against blacks and Mexican Americans. The city defends the judgment on the basis that the redistricting ‘does not offend the Equal Protection Clause merely because it results, under circumstances beyond its control, in some inequality’. This court discusses at length the concept of ‘invidious' discrimination and concludes that plaintiffs were required to allege facts ‘showing that the variance of the ratio between registered voters and actual population was both substantial and due to some oppressive action on defendant's part.’ (Italics added.) If it was not clear before, Avery v. Midland County, Texas (1968) 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45, made it crystal clear that the phrase ‘arbitrary or invidious' in the context of apportionment cases means simply ‘that bases other than population [are] not acceptable grounds for distinguishing among citizens when determining the size of districts used to elect members of [a city council]’. References to blacks, Mexican Americans and oppression are beside the point. They have served only to confuse the issue.

Both the Ellis and Burns cases cited herein emphasize the dangers of relying upon voter registration in redistricting. In the case at bench there is an added danger of unmeasurable proportions. The Charter calls for redistricting based upon the number of registered voters ‘for the direct primary state election’ in 1964, 1968, 1972, etc. But the redistricting is for the election of city councilmen which is held only in each odd-numbered year. The number of persons who registered to vote for the state direct primary may be heavily influenced by the interest, or lack of interest, in who is nominated for state Assemblyman or Senator from a particular district. There may have been a heavy registration of voters in a given geographical area within the city in 1968 generated by a lively campaign for nomination as a state Senator and little registration in the same area for the councilmanic races in 1969. Conversely, the registration in a given area may have been light in 1968, but extremely heavy in 1969. If voter registration alone were a proper basis for redistricting, the very least that would be required in my opinion would be voter registration for councilmanic races.

Burns suggested for state elections that ‘[u]se of presidential election year figures might * * * assure a high level of participation * * *.’ If this suggestion applies to city elections, I think the figures should be taken from the general election, not the primary election. Not infrequently persons fail to register for the primary election because there is no real contest about who will be nominated for presidential electors, for state Senator, for state Assemblyman or for other state or federal offices. But a contest for every office is assured for the general election. Use of registration figures for the primary election is, in my opinion, not justified.

The court faults the plaintiffs for alleging the population of the various districts in terms of estimates ‘whose reliability was neither admitted nor demonstrated’. If the court is correct, no attack on redistricting can ever be successful if the redistricting is done as of a date other than that of the last decennial census. The Charter of the City of Los Angeles calls for redistricting based upon conditions as of a date in the spring of 1968, 1972, 1976, etc. Thus when the city redistricts in 1972 based upon 1972 voter registration figures, the city can claim that the April 1, 1970, census figures (whose reliability the court presumably would concede1 ) are immaterial because they obviously would not reflect the population as of two years later. The United States Supreme Court in Burns v. Richardson (1966) 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 said: ‘It may well be that reapportionment more frequently than every 10 years, perhaps every four or eight years, would better avoid the hazards of’ the use of voter registration as a basis for redistricting. Since that court has made clear that total population is the basic measure of any redistricting, the court necessarily implies that redistricting between censuses may be based on reliable estimates. In the case at bench, the estimates pleaded by plaintiffs were prepared by the City of Los Angeles. Counsel for the city at oral argument, after asserting that the city could redistrict based upon its population estimates, conceded that plaintiffs could attack a redistricting using the city's population estimate ‘if we were given the opportunity to test the validity of the estimate * * *. I would think that the least we should be entitled to establish is whether or not it does in fact afford an accurate, reliable basis upon which to reapportion’. I quite agree, but the opportunity for the city to attack the reliability of its own figures was foreclosed by its own action in moving successfully for judgment on the pleadings. I confess that the logic of this position escapes me.

The court quotes Kapral v. Jepson (1967) D.C., 271 F.Supp. 74 for the sound proposition that ‘a specific factual finding [to the effect that use of a registered voters basis produces a distribution of legislators not substantially different from that which would have resulted from the use of a permissible population basis] would be required before apportionment based on numbers of registered voters could be said to comport with federal constitutional standards'. As I read that case, when, as in the case at bench, redistricting is based solely on voter registration, the burden is on the city to plead and prove that the registered voters basis produced districts which were not substantially different from those which would have resulted from the use of a permissible population basis. Thus I cannot concur with the court that it was plaintiff's burden to plead how the ‘estimates' were reached. In fact, I think plaintiffs would have stated cause of action by pleading merely that the redistricting was based on voter registration alone.

I would reverse the judgment.

FOOTNOTES

1.  In addition to a declaratory decree, a peremptory writ of mandate was also sought, commanding defendant to cease its employment of voter registration as the basis for councilmanic district apportionment and to substitute therefor population as the sole basis for such apportionment. By stipulation, however, hearing on the return to the alternative writ was marked off calendar.

2.  As stated earlier, plaintiffs have not indicated that their complaint could be amended to make such showing.

3.  They include Burns v. Richardson, supra, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966), Avery v. Midland County, supra (1967) and Davis v. Dusch, supra (1967), cited in Avery.

1.  Even the actual census, however, never accurately fixes the total population. It is common knowledge that the Bureau of the Census admits that it omitted to count 5,000,000 persons in the 1960 census. (See also footnote 3 of the concurring opinion of Mr. Justice Fortas in Kirkpatrick v. Preisler (1969) 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519.) Spokesmen for the Bureau of the Census are now appealing through news media for cooperation in the April 1, 1970, census in the hope that the percentage of error can be reduced.

LILLIE, Associate Justice.

WOOD, P. J., concurs.