After being hung up in court for months, a lawsuit to block the use of the 1988 state census in the legislative reapportionment plan is moving forward.
The suit, which was filed against several state officials by Douglas, Riley and Leavenworth counties and seven legislators who live in Douglas and Riley counties, had been on hold while Shawnee County District Judge James M. MacNish Jr. considered a number of preliminary motions.
The plaintiffs won two major points in MacNish's decision, which was dated Friday and received by Douglas County on Tuesday, according to Patti Hackney, assistant counsel for Douglas County. MacNish turned down a motion by the defendants to dismiss the lawsuit and upheld the plaintiffs' motion to allow discovery to proceed in the case.
Until June, discovery, the information-gathering step of the suit, was proceeding in the federal court suit. All discovery ended, however, when the U.S. District Court in Topeka ruled to stay all federal proceedings until action in the state court is completed. Last week's ruling will allow discovery to proceed in the state court case.
A DEFENSE motion to drop Gov. Mike Hayden as a defendant in the suit was upheld by MacNish, Ms. Hackney said, "but that's not an issue that will make or break the lawsuit."
She said MacNish also allowed two plaintiffs, Sen. Phil Martin, D-Pittsburg, and Rep. Delbert Gross, D-Hays, to be added to the suit.
A motion by the plaintiffs to have canvasser books used in the 1988 state census put on the record also received qualified approval from the judge, Hackney said. The books will be available for inspection by the court and attorneys in the case, she said, but they won't be open to the general public.
"I wanted them to be at the judge's fingertips," she said, "because I felt they were really significant."
State census opponents, who favor use of the federal census, contend the state headcount was flawed because students and military personnel were counted at their "permanent residences," rather than where they were stationed or went to college. In the federal census, people are counted where they are living at the time.
They contend that the state census violates the rights of military personnel, students and certain minorities, who would end up being underrepresented in the Kansas House of Representatives.
ACCORDING TO the 1988 state census, Douglas County had 58,272 residents. But the U.S. Census Bureau estimates that as of July 1988, Douglas County had a population of 76,500.
Ms. Hackney said that with the judge's decision, attorneys for the plaintiffs plan to get to work right away.
"At this point, we'll probably exchange lists of questions with the remaining defendants," she said. With Hayden dropped from the suit, the defendants are Secretary of State Bill Graves; John R. Wine Jr., assistant secretary of state; Brent Anderson, director of the Division of Census from June 1987 to August 1988; and Brad Bryant, administrative coordinator of the Division of Census from June 1987 to August 1988 and director from August 1988 to November 1988.
Ms. Hackney said she also plans to ask MacNish to schedule a conference so they can settle on a timeline for discovery and look at setting a trial date.
The plaintiffs hope to go to trial before the Legislature adjourns so corrective action can be taken in time for the 1990 House elections, she said.