Apportionment of Mich. Legislature, In re

• Decision Date: 02 November 1965
• Docket Number: No. 19,19
• Citation: 137 N.W.2d 495,376 Mich. 410
• Parties: In the Matter of APPORTIONMENT OF the MICHIGAN LEGISLATURE.
• Court: Michigan Supreme Court

Page 495

137 N.W.2d 495

376 Mich. 410

In the Matter of APPORTIONMENT OF the MICHIGAN LEGISLATURE.

No. 19.

Supreme Court of Michigan.

Nov. 2, 1965.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., for defendant James M. Hare, Secretary of State.

Dykema, Wheat, Spencer, Goodnow & Trigg, Detroit, for petitioners.

Rothe, Marston, Mazey, Sachs & O'Connell, by Theodore Sachs, Detroit, for intervening defendants.

Before the Entire Bench.

KELLY, Justice.

Under the provisions of Article 4, § 6, of the Constitution of 1963, petitioners filed their 'Petition for Review' requesting that this Court: (1) review the Austin-Kleiner plan which, pursuant to this Court's order, was adopted by the commission on legislative apportionment June 23, 1964, and under which plan the 1964 legislative elections were subsequently held; (2) authorize petitioners to take depositions of appropriate witnesses, including the members of the commission on legislative apportionment; (3) conduct a hearing in open court with opportunity for oral argument; (4) declare the plan in violation of the cited provisions of the Michigan Constitution of 1963 and the Constitution of the United States, and take the following action:

(a) Rescind the order of this Court dated June 22, 1964, 373 Mich. 250, 128 N.W.2d 722, and declare the plan void and of no effect, for any elections subsequent to the primary and general elections of 1964;

(b) Remand the plan to the commission and order that the commission prepare and adopt a new apportionment plan which complies with the requirements of the Michigan Constitution of 1963, interpreted in the light of the constitutional requirements and guide lines established by applicable decisions of the Supreme Court of the United States.

On January 14, 1965, this Court denied petitioners' motion for discovery. February 5, 1965, motion for reconsideration having been filed, this Court entered an order scheduling the cause for oral argument on May 11, 1965, and amending the January 14, 1965, order, as follows:

'Whether, and if so to what extent, petitioners' offer of proof should be granted and proof taken, may be briefed and will be decided after oral argument has been completed and considered.'

Oral agrument was held on May 11, 1965, and subsequent to said argument intervenors filed a Rejoinder Brief on June 21, 1965, and petitioners a Surrejoinder Brief on July 22, 1965.

The first question to be answered is: Should petitioners' offer of proof be granted and proofs ordered taken?

Defendants oppose petitioners' request, claiming: (1) 'Petitioners' charge of political gerrymander approaches naivete' and, when the Con-Con records are considered, 'the present allegations of partisan gerrymandering are curious, to say the least'; (2) 'This Court should not presume to 'outrun' the United States Supreme Court in formulating rules which the Supreme Court to date has declined to make'; (3) The petition is a 'plea to engage in a fishing expedition'; (4) If this Court follows previous decisions of this Court the petition for discovery will be denied; (5) The disputed questions do not meet the test of relevancy and competency and the 'intentions or mativations' of the commissioners are immaterial.

Defendants' objection (1): Minimizing the charge of gerrymandering, defendant Secretary of State Hare states:

'Petitioners' charge of political gerrymander approaches naivete when it is considered that under Constitutional mandate the Apportionment Commission must be composed of four Democrats and four Republicans. Constitution of 1963, Article IV, section 6. It being constitutionally required that the commission be selected by the political parties, it would seem implicit that partisan political considerations enter into any product of the commission. If petitioners are on sound ground in contending that an unlawful partisan gerrymander is in the Austin-Kleiner plan, then perhaps the apportionment commission itself must fall as being a built-in gerrymandering device.'

Intervening defendants, carrying forward defendant Hare's thought that we should expect and not be surprised with gerrymandering tactics, state: 'The present allegations of partisan gerrymandering are curious, to say the least. The Con-Con records reveal some interesting things, however, which do not square with the present expressions of horror,' and, to sustain their point, quote, among others, Constitutional Convention Delegate and Committee Chairman John Hannah, as follows:

'Mr. Chairman, members of the committee, I only want to reiterate the point that Judge Dehnke has made. This is a matter that received long and careful consideration by the committee. The committee felt very strongly that this apportionment commission should be, as he indicated, persons with strong political feelings, selected by the two political parties to do this specific job. * * *

'The State is divided into four districts and each party would select one member of the commission from each of the four districts. The reason for that is: in the view of our committee it is desirable that this commission first of all be partisan; secondly, that it be reasonably objective; and thirdly, that it have some knowledge of all of the areas of the State for which it is going to be responsible for drawing new district lines.'

Defendants' objection (2): Defendant Hare stresses the point under the heading 'Austin-Kleiner Contains no Unlawful Gerrymander' (emphasis ours), and states:

'Since early in the last century when Governor Gerry was accused of devising legislative districts to accommodate his political needs, the lawfulness of such a practice has been debated. To this date no court has decreed that per se such an alignment of election districts is unlawful.'

Intervenors also stress this point as follows:

'Whatever the Con-Con history, it is revealing that plaintiffs cite no precedent for the proposition that partisan gerrymandering, if proved, would constitute a violation of the Federal Constitution. Clearly, the courts have declined to so hold. * * *

'Clearly there is no basis for a conclusion that gerrymandering constitutes a Federal cause of action. What standards would be controlling are not remotely suggested by plaintiffs. No definitions are suggested. * * *

'This Court should not presume to 'outrun' the United States Supreme Court in formulating rules which the Supreme Court to date has declined to make.'

Defendants' objection (3): Claiming petitioners endeavor to engage in a 'fishing expedition,' intervening defendants set forth petitioners' claims under the heading 'Alleged 'Facts," as follows:

'Building surmise upon conjecture and sprinkling both with liberal doses of hindsight and circular reasoning (e. g., the Democrats won so they must have gerrymandred; they gerrymandered to win), plaintiffs would 'prove' an unlawful partisan gerrymandering.

'Plaintiffs scarcely bother to define the term--and since they deal without precedent, it is no wonder they do not.

'Essentially however, the 'factual' grievances appear to be three (1) the Democrats won the legislature--handily; (2) some Republican incumbents were obliged to run against others in the primary; and (3) certain districts are irregularly shaped. Further allegations suggest a combination of these elements.'

Defendants' objection (4): Defendants call to this Court's attention four of our recent decisions, claiming that if we follow same it will result in a rejection of the petition for discovery. A resume of the facts involved in those four cases and the holdings of this Court follow:

Insealator, Inc. v. Wallace, 357 Mich. 233, 98 N.W.2d 643--This appeal involved the claim of a manufacturer's agent that the corporation not only refused to pay him commission but altered its books to disguise the fact it owed him the claimed amount.

In our decision, after calling attention to the fact that Rule 35, § 6, provided that the deposition of an officer of a corporation 'may be used by an adverse party for any purpose,' we held (pp. 252, 253, 98 N.W.2d p. 654):

'The court offered to go through the depositions and make a ruling as to the admissibility of testimony therein. Insealator insisted that they should be admitted in their entirety under this rule. The court properly ruled them out on objection to the effect that they contained irrelevant and immaterial testimony. Opportunity was afforded counsel to use them to contradict or impeach. This counsel apparently did not care to do. No error exists by reason of their exclusion under these circumstances.'

Banaszkiewicz v. Baun, 359 Mich. 109, 101 N.W.2d 306--This appeal involved a suit for specific performance of an alleged oral agreement under which decedent was to leave all of his property upon his death to plaintiff.

In a 4-3 decision, this Court held (quoting syllabus 9):

'There is no conflict of purpose between the so-called dead-man's statute barring testimony of an opposite party as to matters equally within the knowledge of a deceased person, and the court rules relative to discovery, permitting depositions 'of any person' as both are intended to aid in arrival at truth and justice in litigation, hence, there is no unfairness in permitting defendants and their counsel to know what plaintiff's claims are and the foundation therefor and, at the same time, not waive their right to bar plaintiff's testimony at the trial on matters equally within knowledge of deceased as to alleged oral agreement to leave property to plaintiff (C.L.1948, § 617.65; Court Rules No. 35, § 6a, Nos. 40, 41 [1945]).'

In Schechet v. Kesten, 372 Mich. 346, 126 N.W.2d 718, we were confronted with the statute barring a physician from disclosing information he had obtained from a patient, and we held, in regard to discovery, interrogatories and physician-patient privileges, as follows:

'Requirement of circuit judge of defendant physician that he answer interrogatories,...