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Warnken v. Schwarzenegger

December 7, 2009



Presently pending are motions to dismiss filed by: (1) the California Assembly, Assembly Members, and Chief Clerk E. Dotson Wilson (the "Assembly defendants"), Dckt. No. 16, and (2) California Attorney General Edmund G. Brown, Jr., Dckt. No. 18. Both motions seek to dismiss plaintiff's action for lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1), and failure to state a claim, Fed. R. Civ. P. 12(b)(6). These matters were heard by the undersigned on January 21, 2009.*fn2 Plaintiff Michael Warnken appeared and represented himself in pro se; the Attorney General was represented by attorney Jack Woodside; the Assembly defendants were represented by attorney John Kennedy.

For the reasons that follow, plaintiff has failed to satisfy the most fundamental prerequisite to suit -- that this court has subject matter jurisdiction to adjudicate the claims he presents. Accordingly, this court recommends that the motions to dismiss be granted and plaintiff's complaint be dismissed without leave to amend.


Plaintiff, a resident of Santa Barbara, alleges in his complaint and other simultaneously filed documents (totaling more than 1,000 pages) that the currently drawn California Assembly ("Assembly") districts, based on the 2000 National Census, do not adequately represent their constituents. Of particular concern to plaintiff is the growth in population throughout the state, while the number of Assembly seats (80) has remained constant since 1854. Compl. at 10. Thus, a member of the Assembly now represents an average of 424,000 persons, as compared to 2,594 persons in 1854. Id. at 10, 16. Plaintiff alleges that this "diluted" representation makes state government inaccessible to, and unrepresentative of, the common citizen. The population size of the districts also makes running for office so expensive that it becomes out of reach for most citizens, an outcome exacerbated by the Assembly drawing its own boundaries for each district and thereby diminishing competition and maintaining incumbency.

Plaintiff claims that these problems violate the U.S. Constitution, Article I, Section 2; the First, Fourth, Fifth, Sixth, Ninth, Tenth, Eleventh, Thirteenth, Fourteenth, Fifteenth, Nineteenth and Twenty-Sixth Amendments to the U.S. Constitution; and pendent state constitutional provisions. His thirteen claims extensively overlap and at times it is difficult to distinguish one from another. Claims one, two, and three describe the allegations and injuries repeated throughout the complaint and reflect a common core of operative facts that are representative of all thirteen claims. These claims contend that the currently drawn assembly district lines are too large and are inappropriately drawn by the assembly members themselves. Compl. at 18-24. As a result, plaintiff alleges, assembly members cannot adequately represent such large numbers of citizens and plaintiff is prevented from accessing his representative. Id. These large districts dilute voter power and are drawn in such a manner that benefits incumbents in elections. Id.

Claims four to thirteen substantially repeat the allegations of claims one, two, and three or contain similar grievances. Claims four and five assert that the large population in each district prevents each citizen from receiving fair representation, dilutes their votes and allows incumbents to maintain their positions. Compl. at 25, 27. Claims six and nine contend that as a result of the population conditions and district sizes discussed in the complaint, third party political groups have a difficult time in winning Assembly seats as do other Californians who are not wealthy or lawyers. Compl. at 32, 41. Claim seven objects to the notion of "one person, one vote" outlined by the Supreme Court in Reynolds v. Sims, 377 U.S. 533 (1964); specifically, plaintiff complains that Santa Barbara County does not have its own representative in the Assembly and must vote with other counties in choosing a representative for their district, and argues that each California county should have its own representative in the Assembly and it is unfair that highly populated areas have more representation than sparsely populated regions. Compl. at 34-35. Claims eight and thirteen contend that such large Assembly districts prevent citizens from individual contact with their representatives and note that plaintiff's many petitions have not been addressed. Compl. at 37, 53. Claim ten alleges that staff for Assembly members have become excessively numerous and possess too much responsibility. Compl. at 43. Finally, claim eleven contends that the state should appoint more judges and claim twelve states that the existing Assembly members are overworked, thus more should be elected. Compl. at 46-47.

Plaintiff seeks the following relief (requests for relief are set forth throughout the complaint, but the following generally reflects plaintiff's summary set forth at pages 59-61 of the complaint):

1. Convene a three-judge panel pursuant to 28 U.S.C. § 2284(1).

2. Permanently enjoin the Legislature's practice of drawing its own districts.

3. Permanently enjoin the custom of adding staff members in lieu of more Assembly members.

4. Permanently enjoin Article 4, Section 4a of the California Constitution, which provides that "the Assembly shall consist of 80 members."

5. Declare that a new basis must be established for the formulation of the number of Assembly representatives.

6. Grant declarative judgment authorizing increase in number of Assembly members and districts.

7. Appoint a Special Master(s) to investigate these issues, including the number of Assembly members to fulfill their constitutional duties, the number and purpose of Assembly committees, and the number, purpose and use of staff members.

8. Declare that there are currently too many Assembly staff members and temporarily or permanently enjoin the hiring of new staff until the above investigation has been concluded or an independent determination made by the court.

9. Permanently enjoin use of the Robo-Pen.

10. Order the California Compensation Commission to meet and consider the salaries of the Assembly.

11. Remand this complaint, construed separately against the Assembly Members and the Assembly Staffers, to the ...

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