Apportionment of State Legislature, In re

• Decision Date: 27 December 1990
• Docket Number: No. 88888,88888
• Citation: 437 Mich. 1208,463 N.W.2d 713
• Parties: In re APPORTIONMENT OF STATE LEGISLATURE. 437 Mich. 1208, 463 N.W.2d 713
• Court: Michigan Supreme Court

Page 713

463 N.W.2d 713

In re APPORTIONMENT OF STATE LEGISLATURE.

No. 88888.

437 Mich. 1208, 463 N.W.2d 713

Supreme Court of Michigan.

Dec. 27, 1990.

ORDER

On order of the Court, the motion to reopen this case is considered, and it is DENIED.

GRIFFIN, Justice (concurring).

Concerns about prematurity and the absence of a case or controversy prompt me to join in denying this motion. I do so, however, with the understanding that the action taken today relates in no way to the jurisdiction or responsibility of this Court with respect to reapportionment.

LEVIN, Justice, joins in Justice Griffin's statement that the action taken today does not relate to the jurisdiction or responsibility of this Court with respect to apportionment and states as follows:

I

In 1982, this Court recognized a responsibility to provide for a lawfully apportioned legislature in the 1982 election. In re Apportionment of State Legislature--1982, 413 Mich. 96, 321 N.W.2d 565 (1982). The Court, in my opinion, has a similar responsibility with respect to the 1992 election as to the House and the 1994 election as to the House and the Senate. ¹

The Constitution of 1963 provides a method of legislative apportionment and apportionment rules which, as set forth in the 1982 Legislative Apportionment opinion, were in part violative of the federal constitution, but in other parts not violative of the federal constitution. While the Court concluded that the legislative apportionment rules stated in the 1963 Constitution were inextricably interdependent and not severable, it nevertheless directed the drawing of election districts in a manner consistent with the legislative apportionment rules set forth in the 1963 Constitution that were not violative of the federal constitution.

The Court specifically directed that Senate and House election district lines be drawn to preserve county lines, and, after the county lines were drawn, the election district lines within the counties shall be drawn on city and township lines, and then drawn to achieve the maximum compactness possible, with the least cost to the federal principle of equality of population between election districts consistent with the maximum preservation of county lines/city and township lines/compactness, within the range of allowable divergence under the federal constitution, as that range had theretofore been prescribed in decisions of the United States Supreme Court.

The Court, thereby, although it said that the legislative apportionment rules set forth in the 1963 Constitution were not severable, nevertheless directed that the apportionment rules be adhered to in the drawing of election district lines for the 1982 election.

After the Court announced its 1982 Legislative Apportionment decision on March 25, 1982, ², the Court decided on, May 5, 1982, Apportionment of Wayne Co [Ingham Co] Bd of Comm'rs--1982, 413 Mich. 224, 321 N.W.2d 615 (1982). The majority of the Court there said that the apportionment rules set forth in the 1963 Constitution that were valid under the federal constitution would be enforced by this Court until the people substituted other apportionment rules. The majority said that the Court's action in the County Apportionment cases "re-enforces the same value that the Court perceived in insisting [in the earlier Legislative Apportionment case], although it had declared the legislative apportionment rules and the commission not severable, that the criteria which had evolved over 100 years of constitutional history be enforced until the people declare whether the power to apportion the Legislature should be returned to the Legislature without limitation or be allocated or restricted by those or other limitations." 413 Mich. 254, 321 N.W.2d 615. (Emphasis added.)

II

The 1982 Legislative Apportionment opinion was a compromise signed by all the members of the Court. ³ Although those who were of the opinion that the apportionment rules were not severable prevailed on that aspect of the matter, those who felt that the valid apportionment rules should be enforced prevailed on that aspect of the matter.

Much has been made of the language in the 1982 Legislative Apportionment opinion stating:

"The redistricting and apportionment plan resulting from this Court's determination will stand until the people act, or it is changed by the collective action of the other two branches of this government, composed of persons who are the most immediate representatives of the people." 413 Mich. 140, 321 N.W.2d 615.

"The Legislature may, by a statute approved by the Governor with immediate effect at least four weeks preceding the filing date for nominating petitions for the August 1982 primary, redistrict and reapportion the Legislature in a manner consistent with federal and state constitutional requirements. Such a statutory redistricting and reapportionment plan shall supersede the plan directed to be drawn in accordance with C above." 413 Mich. 142, 321 N.W.2d 615.

This language, together with earlier language, was inserted to satisfy members of the court who were of the opinion that the Legislature was closer to the people than the Court, and who were uncomfortable with the Court's function under the Constitution of determining whether any plan was compliant with constitutional requirements. In all events, the power so "conferred" by the 1982 Legislative Apportionment opinion on the Legislature/Governor was expressly stated as a power to reapportion "in a manner consistent with federal and state constitutional requirements," and, as set forth in the 1982 County Apportionment opinion, "the criteria which had evolved over 100 years of constitutional history [were to] be enforced until the people declare whether the power to apportion the Legislature should be returned to the Legislature without limitation or be allocated or restricted by those or other limitations." (Emphasis added.)

A predicate of the compromise set forth in the 1982 Legislative Apportionment opinion was, thus, that until the people decide otherwise, the valid legislative apportionment rules set forth in the 1963 Constitution would govern.

III

What a court does--as reflected in the judgment order--is often more important that what it says--the...