Apportionment of State Legislature-1982, In re

Citation413 Mich. 96,321 N.W.2d 565
Decision Date25 March 1982
Docket NumberLEGISLATURE--1982,No. 1,Docket No. 68777,1
PartiesIn re APPORTIONMENT OF STATECalendar413 Mich. 96, 321 N.W.2d 565
CourtSupreme Court of Michigan

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Gary P. Gordon, Asst. Pros. Atty., Lansing, for the Attorney General.

Hill, Lewis, Adams, Goodrich & Tait by Robert L. Henry, Jr., Ann Arbor, for Republican members of the Apportionment Commission.

Marston, Sachs, Nunn, Kates, Kadushin & O'Hare, P. C. by Theodore Sachs, Detroit, for Democrat members of the Apportionment Commission.

Robert A. Sedler, Edward J. Littlejohn, and Hall & Bilicki, P. C. by Elliott S. Hall, Detroit, for Coleman A. Young, Mayor of the City of Detroit, and for the Nat. Ass'n for the Advancement of Colored People.

Miguel G. Ortiz, Detroit, for Southwest Committee for Fair Representation.

PER CURIAM.

The Constitution of 1963, art. 4, Secs. 2-6, provides that, following the decennial census, the Commission on Legislative Apportionment 1 shall establish House and Senate districts in accordance with rules there prescribed for districting and apportionment. If a majority of the commission cannot agree upon a reapportionment plan, then, upon submission of plans to this Court by members of the commission, this Court shall determine which plan complies most accurately with "the constitutional requirements" and order its adoption. 2 The rules prescribed by the 1963 Constitution for districting and apportioning the Legislature are based on weighted land area/population formulae. 3 Shortly after the adoption of the 1963 Constitution and after the decision, on June 15, 1964, of the United States Supreme Court in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), those formulae were held to be violative of the Equal Protection Clause of the Constitution of the United States. 4

The Commission on Legislative Apportionment nevertheless continued to function. After Reynolds v. Sims, on June 22, 1964, and, following the 1970 census, again on May 4, 1972, this Court chose between plans offered by members of the commission and declared that the plan so chosen most accurately complied with "the constitutional requirements" and directed its adoption by the commission. 5 However, fundamental questions concerning the commission's and this Court's roles in the apportionment process have yet to be addressed by this Court. One justice in 1964, 6 another justice in 1972, 7 expressed the view that the commission and this Court's authority is limited to districting according to the apportionment rules prescribed in art. 4, Secs. 2-6, and that since those rules are no longer wholly valid neither the commission nor this Court can properly act at all. While that view was rejected sub silentio when this Court ordered the adoption of plans in 1964 and 1972, no opinion of the Court has addressed or decided the question whether the commission and this Court's authority under art. 4, Secs. 2-6 continues despite the partial invalidity, under the United States Constitution, of the apportionment rules set forth in the 1963 Constitution. 8 Nor has the Court definitively considered in any opinion what are "the constitutional requirements". 9

The Court's actions in 1964 and 1972, taken without addressing or definitively considering fundamental questions, are not precedentially binding for it is well-established in this state that "[a] point thus assumed without consideration is of course not decided". Allen v. Duffie, 43 Mich. 1, 11, 4 N.W. 427 (1880); People v. Aaron, 409 Mich. 672, 722, 299 N.W.2d 304 (1980).

Upon receipt, on February 12, 1982, of advice that the commission had failed to agree upon a plan, and the submission by members of the commission to this Court of plans, this Court entered an order establishing a procedure for the filing of plans and requesting briefs and oral argument on the questions (1) whether the authority of the commission and this Court continues despite the invalidity under the United States Constitution of some of the apportionment rules, and (2) if the authority of the commission and this Court continues, what standards govern districting and apportionment. 10

We summarize our conclusions as follows:

1. It is this Court's duty under Const.1963, art. 6, Sec. 1, providing for the exercise of the judicial power, to determine what are the requirements of this constitution and to define the meaning of those requirements in specific applications.

2. The term "constitutional requirements" means the provisions of art. 4, Secs. 2-6 concerning the number and terms of office of senators and representatives, establishing the commission, providing for the decennial districting and apportionment of the Legislature in accordance with apportionment rules there stated and declaring this Court's function with regard thereto which are not violative of the Equal Protection Clause of the United States Constitution.

While the Equal Protection Clause of the United States Constitution, as elucidated in Reynolds v. Sims, supra, requires equality of population in forming election districts, the term "constitutional requirements", as used in art. 4, Secs. 2-6, does not refer to the Equal Protection Clause of the United States Constitution, the Equal Protection Clause of the Michigan Constitution (Const.1963, art. 1, Sec. 2), or any other provision of the Michigan Constitution.

3. The provisions of the second and third paragraphs of art. 4, Sec. 2 and of the second paragraph of art. 4, Sec. 3, establishing weighted land area/population formulae taking into account land area as well as population (thereby apportioning to less populous areas a larger number of senators and representatives than would be apportioned thereto based on population alone), are invalid under the Equal Protection Clause of the United States Constitution as elucidated in Reynolds v. Sims, and subsequent decisions of the United States Supreme Court.

4. Standing alone and in the abstract, requirements that county, city and township lines be observed in districting and apportionment, and that election districts be compact, are not violative of the Equal Protection Clause of the United States Constitution as long as the resulting districts do not exceed the "range of allowable divergence" from the federal goal of equality of population.

5. It appears from Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973), that the range of allowable divergence is at least 16.4%. 6. The weighted land area/population formulae, invalidated by Reynolds v. Sims, supra, and the remaining apportionment rules of art. 4, Secs. 2-6, are inextricably interdependent and therefore are not severable. Similarly, the function of the commission, which depends on those rules, and indeed the commission itself, are not severable from the invalidated rules. 11

7. It is this Court's responsibility to provide for the continuity of government by assuring that the people will be provided the opportunity to elect a lawfully apportioned Legislature in the 1982 election.

8. The Court directs the drawing of election districts in a manner compliant with federal constitutional requirements consistent with the constitutional history of this state, and the resulting redistricting and apportionment plan shall stand until the Legislature and the Governor or the people provide by law an alternative plan.

I

The two questions posed to the parties by this Court and stated above--severability and standards--are interrelated. In deciding whether the commission and this Court's authority under art. 4, Secs. 2-6 survive the partial invalidity, under the United States Constitution, of the districting and apportionment rules, the Court is obliged to examine the function of the commission in the wake of Reynolds v. Sims. This in turn requires that the Court determine the standards by which the commission was governed before and after Reynolds v. Sims.

II

The 1972 opinion of this Court declared, based on its understanding of Reynolds v. Sims and subsequent decisions of the United States Supreme Court, that the apportionment plan with the least population differentials from the ideal was the one which most complied with the "constitutional requirements" of the 1963 Constitution.

The Court's perception of federal constitutional standards would shortly prove to be incorrect. 12 The following year, in Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973), the United States Supreme Court ruled that in state legislative apportionment, the state Legislature, or other body entrusted with the function of reapportioning, may within limits--the Court approved a maximum deviation of 16.4%--depart from the goal of population equality in order to achieve other rational, legitimate state goals such as preserving the integrity of political subdivisions of the state.

A

The 1972 opinion of the Court declared that "[t]he controlling criterion for judgment in legislative apportionment controversies, involving bicameral state legislatures, under the equal protection clauses of the Federal and state Constitutions is equality of population as nearly as practicable". In re Apportionment of Legislature--1972, 387 Mich. 442, 453, 197 N.W.2d 249 (1972). The opinion characterized the statement in Reynolds v. Sims, supra, that a state may legitimately desire to maintain the integrity of political subdivisions as dictum. Instead, it relied on the stringent equality of population criterion set forth in Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969), where the Court rejected avoidance of fragmenting political subdivisions as a legitimate reason for departing from equality in congressional districts.

Although the United States Supreme Court, in Reynolds, had noted a difference between congressional and state legislative districting, the 1972 opinion of this...

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