Apportionment of Mich. Legislature, In re
| Decision Date | 08 March 1966 |
| Docket Number | No. 19,19 |
| Citation | 377 Mich. 396,140 N.W.2d 436 |
| Parties | In the Matter of the APPORTIONMENT OF the MICHIGAN LEGISLATURE. |
| Court | Michigan Supreme Court |
Dykema, Wheat, Spencer, Goodnow & Trigg, Detroit, for petitioners.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, for defendant James M. Hare, Secretary of State.
Rothe, Marston, Mazey, Sachs & O'Connell, Detroit, for intervening defendants.
Before the Entire Bench.
'We have a great problem here maintaining our credibility with our own people.' 1
As this constitutionally ordained original proceeding draws to an ignominious close, the Supreme Court of Michigan also has a great problem maintaining its credibility with its own people. We have issued a mandatory order to the commission on legislative apportionment, the purposeful integrity of which five of us have attested 'pursuant to the specific mandate which appears in paragraph 8 of said section 6' (376 Mich. at 481, 137 N.W.2d at 526). The time allowed for performance has expired, and the commission has refused to comply. Now, without plausible explanation or excuse, the Court will not set in motion any one of the several means of enforcement to which it may and should exigibly turn. 2 In blunt short, the Court will not execute a pivotal assignment of the Constitution; the paragraph 8 assignment to assure the people that the commission 'performs' its paragraph 5 duty.
Since an ultimate negative end of the captioned proceeding is directly ahead, and since the proceeding is of such public nature as to render it beyond settlement or compromise, I have concluded that the fact should be announced now, the better to relieve such uncertainty as may yet remain in the minds of governmentally concerned citizens. No agony, even of political nature, should be prolonged unnecessarily. Today's divisively fragmented circumstances This appeal to our original jurisdiction is dead. All is over except the bandying of words about and around another fervent plea for deliverance of the Court by constitutional amendment (see Justice Souris, 376 Mich. at 466-469, 137 N.W.2d 495). The Court should say so, now in January, rather than dally along with dissentient obliques only to belatedly admit the fact next spring. All protestations, denials and sidewinded delaying actions to the contrary notwithstanding, the Court for want of a majority vote will not enforce its order of November 2. Without judicial enforcement section 6 is lifeless. That part of Article IV, upon which the whole article was designed to pivot now and decennially hereafter, is backbone paralyzed. Some day prior to the 1966 cutoff date we knew in 1964 (373 Mich. 247, at 253, 128 N.W.2d 721), the Court will deliver its beau geste to the presently districted legislature. It will descend ambagiously from the third to the second floor of the Capitol in the form of an exalted beatitude, beati possidentes (blessed are those who possess).
reviewed, it is in order that the legislature be told immediately that it may get on with its critically requisite task of legislation; that there need be no further suspensory concern for affirmative judicial action; that the commission has demitted and the Court will do nothing about it. 3
Woven through every word so far written in re this appeal to our original jurisdiction is a little matter known as the truth that must be served. It is that our order of November 2 can be enforced by the Court, provided the Court has the will to enforce it. To say upon authority of section 6 that the Supreme Court of Michigan, 'in the exercise of original jurisdiction,' may--no 'shall'--direct the commission to perform its duties (that we have done; 376 Mich. at 481, 482, 137 N.W.2d 495), and then to say or imply that the Court cannot enforce its writ, is to deny what is inherent as well as statutorily provided. 4 Significant too is the fact that no member of this Court is willing to stand up, on the record, with averment either that section 6 is invalid or that the people, by that section, have written into their Constitution a mandate no branch of the State government can enforce. The only exception is Justice Souris (see 372 Mich. at 461-469, 127 N.W.2d 862; 373 Mich. at 257-262, 128 N.W.2d 722; 376 Mich. at 458, 137 N.W.2d 495). He says section 6 is unconstitutional; not that the Court is powerless to enforce it.
I stand apart from such judicial delinquency. The Court fails to attend the Constitution with that resolution which, to the people of Michigan, has been due since the first Monday of 1966. Its failure is sure to rise and haunt the Court, again in 1971, when the decennial census of 1970 is recorded and the duties of a newly appointed commission and of the Court are called into play anew under section 6.
The only way to avoid such recurrence is by an intervening amendment of the Constitution. But even that avenue of retreat from duty may not be open. When the question of ten-year party control of the legislative branch is at stake in the critical wording of a Constitutional clause to be To conclude:
proposed, the internecive fury of the drafting committee or committees is more than likely to result in another political deadlock, with all participants on the floor. And if by some chance the drafters should come up with what they might agree to submit for consideration of the electorate, will enough electors approve it, realizing as all will from these telltale experiences of 1965-66 that there will be no way to insure the enforcement of what they are asked to endorse?
1. The provisions of section 6 are judicially enforcible. There is no person, court, tribunal, or branch of government to which this Court may pass the politically heated buck. Something more than power is cast upon this Court by the final paragraph of section 6, conjoined as that section is with the first section of Article VI and the oath each seated Justice has subscribed with uplifted hand. There is the honor of duty, prefaced by that verb 'shall.' It is aimed at the very navel of the Court by that final paragraph of section 6.
2. Current criticism of section 6, spawned of this second deadlock of the commission, is aimed at the wrong target. The fault lies not with the section but with the judicial branch. Section 6 was a well thought out procedural solution of what is probably the most difficult of all problems of organization of State legislative assemblies. So far as I can discover, 6 it is the only constitutionally provided means extant for districting and apportionment of a State legislature under explicitly directed judicial supervision. But again, as is ever the case where enforcement of a constitutional mandate is required, the mandate is no stronger than the agency assigned to its enforcement. The human element is ever the weak link. That is why, on sad occasion, that
'The best laid schemes o'mice and men Gang aft a'gley;
An' lea'e us nought but grief and pain, For promis'd joy.' 7
3. As the Court, by inaction, releases this particular commission from duty forever, some citizens surely (the writer being one) will find themselves giving a wry salute to the four Democratic divinators of the commission. The prescience that foursome has shown is wondrously uncommon. How the four could have been so confident, in those waning days of December, that five members of the Supreme Court of Our mandatory writ should issue forthwith, requiring that the secretary of the commission proceed promptly 8 to insert, say in a jury box borrowed from a nearby circuit court, eight uniformly folded white slips of paper bearing respectively the names of the eight members of the commission; that he then close the box and shake it up as county clerks are wont to do upon jury selection; that he then, with discreetly averted gaze, draw out seven of the slips one after the other, and that he announce after each withdrawal the name appearing on the withdrawn slip.
Michigan would not enforce what the five ordered the commission to do, back in early November,[377 Mich. 413] can be attributed only to occult power; a power given to few mortals. These gentlemen, by standing firm for the status quo through every painful hour of that sixty day period, predictably have saved the presently districted legislature, probably for all currently foreseeable time. Their spiritual (not political of course) rewards should be of high order.
A separate and simultaneously issued writ should direct that the first seven members of the commission, identified thus by the seven withdrawn slips, shall 'proceed to district and apportion the senate and house of representatives' within an allotted number of days, say 30, and should provide for prompt review of the action of the seven commissioners upon petition filed in the present proceeding by any elector; all in pursuance of paragraph 8 of said section 6 and paragraph 2 of our said order of November 2.
No one need despair, or flee to the hills should such an order issue. Whatever the result of any such 7 man commission action, that result would be subject to constitutional test pursuant to said paragraph 8. And even though such mandated procedure might, the time element again being critical, leave the Austin-Kleiner plan intact for the elections of 1966, this Court would be able to say that it had performed manfully the duty said paragraph 8 has imposed upon it. 'Drest' only as we are 'in a little brief authority,' 9 it might even be said of us some day that such was our finest hour.
Supplement (February 1, 1966):
In the great journal of things happening since section 6 was first invoked in this Court (February 4, 1964; 372 Mich. 418, 126 N.W.2d 731) we find that our paragraph 8 time-account is running out. It is fitting that the journal not be closed and put away until all of the other...
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