Bizzell v. White

• Decision Date: 21 December 1981
• Docket Number: No. 81-159,81-159
• Parties: Frank BIZZELL, et al., Appellants, v. Frank WHITE, Governor, et al., Appellees.
• Court: Arkansas Supreme Court

Page 528

625 S.W.2d 528

274 Ark. 511

Frank BIZZELL, et al., Appellants, v. Frank WHITE, Governor, et al., Appellees.

No. 81-159.

Supreme Court of Arkansas.

Dec. 21, 1981.

Elrod & Lee, Siloam Springs and Lonnie C. Turner, Ozark by John R. Elrod, Siloam Springs, for appellants.

Steve Clark, Atty. Gen. by R. B. Friedlander, Asst. Atty. Gen., Little Rock, for appellees.

PER CURIAM.

The plaintiffs, citizens and taxpayers of this state, brought this original action in the Supreme Court of Arkansas pursuant to Amendment 45 § 5, which amends Art. 8, as amended by Amendment 23, of the Constitution of Arkansas (1874). The action is against Frank White, Paul Riviere and Steve Clark in their respective capacities of Governor, Secretary of State and Attorney General, who constitute the membership of the Board of Apportionment. The complaint challenged the composition of Senate District 7 as approved by the Board of Apportionment with the Governor dissenting. Plaintiffs allege the proposed boundary lines of District 7 result in violating their substantive due process rights and equal protection of the law as guaranteed by the state and federal constitutions. They further allege that District 7 is neither compact nor contiguous and was intended to and does, in fact, isolate and cause to be ineffective the voting strength of those citizens who vote in three designated townships in the proposed District 7. They ask that this court redraw the boundary lines of District 7 to correct the asserted arbitrary action and abuse of discretion of the Apportionment Board and, further, revise only the boundary lines of adjacent senatorial districts made necessary by this court's revision of District 7.

This action was commenced on July 14, 1981, or within 30 days as required after the Board of Apportionment filed, on July 13, 1981, its report of apportionment with the Secretary of State. The defendant Governor filed an answer in which he virtually admitted the allegations of the complaint. Defendants Riviere and Clark, on July 27, 1981, filed a motion to dismiss on the grounds that the complaint failed to state a cause of action as it attacked only a local area or portion of the statewide reapportionment plan. The plaintiffs have not amended their complaint although they reserved that right. Instead, they chose to stand on it. This court ordered the parties to brief the threshold question of whether an action would properly lie if it attacks less than the full apportionment plan.

The only question for determination presented, therefore, is whether a valid cause of action is alleged in the complaint. We believe the complaint does not state a proper cause of action pursuant to Amendment 45 § 5, which amends Art. 8, as amended by Amendment 23 of our state constitution. The pertinent provisions provide that any citizens or taxpayers may file an action here to (a) compel the Board to perform its duties, and (b) to revise any arbitrary action or abuse of discretion by the Board in making its reapportionment, provided that action for revision is brought within 30 days from the filing of the reapportionment report with the office of the Secretary of State.

Plaintiffs' admitted attempt to contain their attack to a local area cannot restrict the remedy; i.e., that an analysis of the statewide senatorial plan shows that the reapportionment is unconstitutional. In every reapportionment case before this court, the challenge has been or recognized as being one to the entire plan itself, a claim that it was illegal. Rockefeller v. Smith, 246 Ark. 819, 440 S.W.2d 580 (1969); Faubus, Governor v. Kinney, 239 Ark. 443, 389 S.W.2d 887 (1965); Stevens v. Faubus, Governor, 234 Ark. 826, 354 S.W.2d 707 (1962); Pickens v. The Board of Apportionment, 220 Ark. 145, 246 S.W.2d 556 (1952); Smith v. The Board of Apportionment, 219 Ark. 611, 243 S.W.2d 755 (1951); and Shaw, Autry and Shofner v. Adkins, Governor, 202 Ark. 856, 154 S.W.2d 415 (1941). That is the required cause of action. In this case the complaint is captioned: "Complaint Applying for Revision of New State Senate District 7." Nowhere in the complaint is it stated or alleged that the entire plan itself is illegal or the result of arbitrary action. In the request for relief the complaint only asks the lines be redrawn in one district so as not to discriminate against the voters in three townships: Hico and Ball in Benton County and White Oak in Franklin County.

The Board has drawn or fashioned each of the 35 individual senatorial districts to achieve, as nearly as practical after considering pertinent factors, substantial equal population, as is required by our federal constitution. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1963); Maryland Committee v. Tawes, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595 (1963); and Lucas v. Colorado General Assembly, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1963). To the same effect see our own cases cited supra. The redrawing of one district, as here, would unavoidably result in a "ripple" effect which admittedly would require a readjustment of other districts. Plaintiffs argue, however, that the "ripple" would be limited to only these districts immediately adjacent to District 7 which would be at the most six districts. The question naturally arises, where would the "ripple" stop?

The plan is not a piecemeal plan. It was made for the entire state and every decision that went into it necessarily affects every district in the state. We cannot say, going into such a lawsuit, that only District 7 will be considered and its grievance heard. That would be like a taxpayer's lawsuit which claims that a tax is illegal as to one taxpayer and perhaps some others but should be declared illegal only as to the complaining party.

The plaintiffs choose to attack the plan as arbitrary. Essentially their claim is that the formation of District 7 was based purely on political consideration and that the intent of the people was secondary. The plaintiffs also suggest several other districts were formed to favor incumbents. Even if those claims be valid, no claim is made that such action would or should void the plan. Instead only three townships seek relief for themselves.

Although plaintiffs concede that it may be necessary to review other adjacent proposed districts and even alter them, they refuse to request that action or even challenge the whole plan. They state, with commendable candor, that they "have no direct concern regarding what the Board of Apportionment might or might not have done" in other counties or distant parts of the state. "That is essentially none of our business, and we have no desire to make it such .... (A) redrawing of the entire Senate apportionment plan is simply not necessary nor is it requested."

If we were to accept this complaint as stating a valid or prima facie cause of action, i.e., one can challenge only part of a comprehensive statewide plan, then there could be 35 different challenges to the plan. Our decision would not preclude another district from being timely challenged in a separate lawsuit. Necessarily a challenge must be made to the whole plan. While it might be demonstrated that one district, as here, is illegally drawn, or arbitrarily created, the challenge and possible relief cannot be so limited in area. That is exactly what the plaintiffs propose.

In Smith v. The Board of...