Albert v. 2001 LEG. REAPPORTIONMENT COMM'N

• Decision Date: 15 February 2002
• Citation: 790 A.2d 989
• Parties: Jeffrey B. ALBERT, Thomas R. Collins, Jules Mermelstein, S. Lawrence Pauker, Robert J. Pesavento, Ira S. Tackel and Ann Thornburg Weiss, Petitioners v. 2001 LEGISLATIVE REAPPORTIONMENT COMMISSION, Respondent. Kenneth E. Davis, Joseph M. Manko, Charles J. Bloom, Rocco J. Burdo, Neil P. Clark, Matthew J. Comisky, James S. Ettelson, Lewis F. Gould, Evalyn B. Kadish, J. Randolph Lawlace, Ora R. Pierce, David A. Sonenshein, Felice G. Wiener, and Mary Wright, Individually and Collectively as the Board of Commissioners of The Township of Lower Merion, Township of Lower Merion, Dennis J. Sharkey, and Nora Winkelman, Petitioners v. 2001 Legislative Reapportionment Commission of the Commonwealth of Pennsylvania, Respondent. Gerald A. Francis, Jerold Novick, Jeffrey M. Lindy, David Gold, Robert McL. Boote, Kenneth L. Brier, Maxine Goldberg, Bob Gray, Mary Ellen Yuhas Hagner, Roger Moog, Judy Strazzella, Mimi Winkler, Fenton Fitzpatrick, Anne Greenhalgh, John Joseph, Lynn Manko, Bruce D. Reed, and Neighborhood Club of Bala Cynwyd, Petitioners v. 2001 Legislative Reapportionment Commission, and the Commonwealth of Pennsylvania, Respondent. William J. O'Brien, II, Petitioner v. 2001 Legislative Reapportionment Commission, Respondent. Senator Lisa M. Boscola, Senator Charles W. Dent, Mayor Thomas Goldsmith, Charles D. Snelling, and Lehigh Valley Coalition for Fair Reapportionment, Petitioners v. Commonwealth of Pennsylvania, 2001 Legislative Reapportionment Commission, Respondent. State Representative Kelly Lewis, Petitioner v. Commonwealth of Pennsylvania, 2001 Legislative Reapportionment Commission, Respondent. Dennis J. Baylor, Petitioner v. 2001 Pennsylvania Legislative Reapportionment Commission, Secretary of the Commonwealth, Respondent. Carlos A. Zayas and Valentin Rodgriguez, Jr., Petitioners v. 2001 Legislative Reapportionment Commission, Respondent. Langhorne Virginia Brickwedde, Petitioner v. 2001 Legislative Reapportionment Commission, Respondent. In re Appeal of the Township of Ross, the North Hills School District, Yvonne Brandon, Charles Delehanty, Nelson Erb, William Linkenhiemer, Eloise Peet, Daniel L. Demarco, John A. Adamczyk, Daniel P. Kinross, James Atzert, David J. Mikec, Gerald R. O'Brien, Peter A. Ferraro, Carol A. Grom, Al Barkley, Arlene Bender, Sylvia K. Lynn, Cheri R. Neely, Jennifer M. Rush, Ted J. Zobb, Jr., Richard Pelot and Edward Wielgus, Petitioners v. Commonwealth of Pennsylvania Legislative Reapportionment Commission, Respondent. The Board of Commissioners of Radnor Township and the League of Women Voters of Radnor Township, Petitioners v. Pennsylvania Legislative Reapportionment Commission, Respondent.
• Court: Pennsylvania Supreme Court

790 A.2d 989

Jeffrey B. ALBERT, Thomas R. Collins, Jules Mermelstein, S. Lawrence Pauker, Robert J. Pesavento, Ira S. Tackel and Ann Thornburg Weiss, Petitioners v. 2001 LEGISLATIVE REAPPORTIONMENT COMMISSION, Respondent.

Kenneth E. Davis, Joseph M. Manko, Charles J. Bloom, Rocco J. Burdo, Neil P. Clark, Matthew J. Comisky, James S. Ettelson, Lewis F. Gould, Evalyn B. Kadish, J. Randolph Lawlace, Ora R. Pierce, David A. Sonenshein, Felice G. Wiener, and Mary Wright, Individually and Collectively as the Board of Commissioners of The Township of Lower Merion, Township of Lower Merion, Dennis J. Sharkey, and Nora Winkelman, Petitioners v. 2001 Legislative Reapportionment Commission of the Commonwealth of Pennsylvania, Respondent.

Gerald A. Francis, Jerold Novick, Jeffrey M. Lindy, David Gold, Robert McL. Boote, Kenneth L. Brier, Maxine Goldberg, Bob Gray, Mary Ellen Yuhas Hagner, Roger Moog, Judy Strazzella, Mimi Winkler, Fenton Fitzpatrick, Anne Greenhalgh, John Joseph, Lynn Manko, Bruce D. Reed, and Neighborhood Club of Bala Cynwyd, Petitioners v. 2001 Legislative Reapportionment Commission, and the Commonwealth of Pennsylvania, Respondent.

William J. O'Brien, II, Petitioner v. 2001 Legislative Reapportionment Commission, Respondent.

Senator Lisa M. Boscola, Senator Charles W. Dent, Mayor Thomas Goldsmith, Charles D. Snelling, and Lehigh Valley Coalition for Fair Reapportionment, Petitioners v. Commonwealth of Pennsylvania, 2001 Legislative Reapportionment Commission, Respondent.

State Representative Kelly Lewis, Petitioner v. Commonwealth of Pennsylvania, 2001 Legislative Reapportionment Commission, Respondent.

Dennis J. Baylor, Petitioner v. 2001 Pennsylvania Legislative Reapportionment Commission, Secretary of the Commonwealth, Respondent.

Carlos A. Zayas and Valentin Rodgriguez, Jr., Petitioners v. 2001 Legislative Reapportionment Commission, Respondent.

Langhorne Virginia Brickwedde, Petitioner v. 2001 Legislative Reapportionment Commission, Respondent.

In re Appeal of the Township of Ross, the North Hills School District, Yvonne Brandon, Charles Delehanty, Nelson Erb, William Linkenhiemer, Eloise Peet, Daniel L. Demarco, John A. Adamczyk, Daniel P. Kinross, James Atzert, David J. Mikec, Gerald R. O'Brien, Peter A. Ferraro, Carol A. Grom, Al Barkley, Arlene Bender, Sylvia K. Lynn, Cheri R. Neely, Jennifer M. Rush, Ted J. Zobb, Jr., Richard Pelot and Edward Wielgus, Petitioners v. Commonwealth of Pennsylvania Legislative Reapportionment Commission, Respondent.

The Board of Commissioners of Radnor Township and the League of Women Voters of Radnor Township, Petitioners v. Pennsylvania Legislative Reapportionment Commission, Respondent.

Supreme Court of Pennsylvania.

Argued February 5, 2002.

Decided February 15, 2002.

Jeffrey B. Albert, Thomas R. Collins, Jules Mermelstein, S. Lawrence Pauker, Robert J. Pesavento, Ira S. Tackel and Ann Thornburg Weiss, petitioners pro se.

Gilbert P. High, Thomas D. Rees, Norristown, for petitioners, Davis et al.

Jeffrey Marc Lindy, Robert M. Boote, petitioners pro se and for petitioners, Francis et al.

William J. O'Brien, II, petitioner, pro se.

Steven Eric Hoffman, Allentown, Saleem S. Saab, Philadelphia, Thomas C. Sadler, Allentown, for petitioners Boscola et al.

Kelly Richard Lewis, petitioner, pro se.

Dennis J. Baylor, petitioner pro se.

John Bartley Delone, Harrisburg, for participant-respondent, Secretary of the Com.

Carlos A. Zayas Valentin Rodriguez, Jr., petitioners pro se.

Langhorne Virginia Brickwedde, petitioner pro se.

C. Donald Gates, Michael J. Witherel, Pittsburgh, for Tp. of Ross et al.

Timothy Jason Bish, for petitioner Amicus Curiae, Borough of Aspinwall.

David Gordon Blake, Washington, DC, for petitioners Bd. of Com'rs of Radnor Tp. et al.

Charles E. O'Connor, Neil G. Epstein, David W. Craig, Mike Fisher, Bridget Montgomery, Kathleen A. Gallagher, for respondent, Reapportionment Com'n.

Before ZAPPALA, C.J., and CAPPY, CASTILLE, NIGRO, NEWMAN, SAYLOR and EAKIN, JJ.

ORDER

PER CURIAM.

AND NOW, this 15th day of February, 2002, upon consideration of the above appeals, we find that the Final Reapportionment Plan of the Pennsylvania State Legislative Reapportionment Commission filed on November 19, 2001, is in compliance with the mandates of the Pennsylvania Constitution and the United States Constitution and therefore shall have the force of law. It is hereby ordered that said Plan shall be used in all forthcoming elections to the General Assembly until the next constitutionally mandated reapportionment shall be approved.

Opinions to follow.

OPINION

Chief Justice ZAPPALA.

These actions were commenced in December of 2001, when the various appellants filed petitions for review in this Court.¹ The appellants challenged the Final Reapportionment Plan (final plan) unanimously adopted by the Pennsylvania Legislative Reapportionment Commission (Commission) on November 19, 2001. By order dated January 11, 2002, we granted the Commission's petition for consolidation of these actions and, on February 5, 2002, we heard oral argument on the matter. For the reasons that follow, we hold that the reapportionment plan complies with the requirements of both the Pennsylvania Constitution and the United States Constitution and therefore dismiss the appeals.²

Since the 1968 amendment to Article II, Section 17 of the Pennsylvania Constitution, the Commission has had the obligation of reapportioning the legislative districts of this Commonwealth in each year following the year of the federal decennial census. PA. CONST. art. II, § 17.³ The Commission consists of five members, four of whom are the majority and minority leaders of both the Senate and the House of Representatives or deputies appointed by each of them. Id. § 17(b). The fifth member, a chairman, is selected by the four other members or, if they fail to make a selection within the time prescribed, by the Supreme Court. Id.⁴ The Commission acts by a majority vote of its membership. Id. § 17(a).

In reapportioning the legislative districts, the Commission must follow the constitutional framework set forth in Article II, Section 16, of the Pennsylvania Constitution, which provides:

The Commonwealth shall be divided into fifty senatorial and two hundred three representative districts, which shall be composed of compact and contiguous territory as nearly equal in population as practicable. Each senatorial district shall elect one Senator, and each representative district one Representative. Unless absolutely necessary no county, city, incorporated town, borough, township or ward shall be divided in forming either a senatorial or representative district.

PA. CONST. art. II, § 16.

Thus, inter alia, the plain language of Section 16 mandates: (1) that the districts are composed of compact and contiguous territory as nearly equal in population as practicable; and (2) that the various Commonwealth subdivisions are not divided when forming districts, unless absolutely necessary. Along with placing the obligation of reapportionment with the Commission, Article II, Section 17, provides that this Court's review of challenges to the Commission's final plan is limited to determining whether appellants have established that the final plan is contrary to law. PA. CONST. art. II, § 17(d). This Court has examined these provisions in great detail in the three reapportionment cases decided by this Court since the 1968 constitutional amendment, In re Pennsylvania Legislative Reapportionment Commission (In re 1991 Reapportionment), 530 Pa.335, 609 A.2d 132 (1992), In re Reapportionment Plan for the Pennsylvania General Assembly (In re 1981 Reapportionment), 497 Pa. 525, 442 A.2d 661 (1981), and Commonwealth ex rel. Specter v. Levin, 448 Pa. 1, 293 A.2d 15 (1972), all of which rely upon the United States Supreme Court's seminal decision in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). In each state reapportionment case, this Court concluded that the reapportionment plan adopted by the Commission passed constitutional muster. We reach the same conclusion here.

In Specter, our Court upheld the 1971 reapportionment plan, the first to be effectuated under the amendment to Article II, Section 16. We relied upon the United States Supreme Court's pronouncement in Reynolds, that the "Equal Protection Clause requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as practicable." 293 A.2d at 18 (citing Reynolds v. Sims, 377 U.S. at 577, 84 S.Ct. 1362). We held that this federal requirement of equal protection is incorporated as a matter of state constitutional law in Article II, Section 16, which provides that districts be "composed of compact and contiguous territory as nearly equal in population as practicable...." This Court held that, as a matter of both federal and state law, substantial equality of population among the various districts must be the controlling consideration in the apportionment of legislative seats. 293 A.2d at 18; see also In re 1981 Reapportionment, 442 A.2d at 665.

Relying again on Reynolds, we emphasized that "permitting deviations from population-based representation does not mean that each local government unit or political subdivision can be given separate representation, regardless of population...." Id. at 18-19 (citing Reynolds v. Sims, 377 U.S. at 581, 84 S.Ct. 1362). This Court concluded that the Senate and House districts, with total population ranges of deviation of 4.31% and 5.46%, respectively, achieved the required overriding objective of substantial equality of population. It further determined that the Commission's final plan properly maintained the integrity of political subdivisions, to the extent that it was possible. This Court noted that a certain amount of subdivision fragmentation is inevitable since most political subdivisions will not have the "ideal"...