Com. ex rel. Specter v. Levin
| Decision Date | 05 June 1972 |
| Citation | 448 Pa. 1,293 A.2d 15 |
| Parties | COMMONWEALTH ex rel. Arlen SPECTER, Individually and as District Attorney of Philadelphia County, Appellant in No. 54, v. A. Leo LEVIN, Chairman of the Pennsylvania State Legislative Reapportionment Commission, et al. (see footnote for seventeen other cases). [*] |
| Court | Pennsylvania Supreme Court |
Opinion June 5, 1972.
Order Feb. 7, 1972.
Rehearing Denied Feb. 29, 1972.
Martin H. Belsky, Philadelphia, for appellant in No 54.
Louis W. Fryman, Philadelphia, for appellants in No. 56.
Lawrence S. Sager, pro se.
George T. Kelton, Bristol, for appellants in No. 58.
Louis C. Johanson, Philadelphia, for appellants in No. 59.
K L. Shirk, Jr., Lancaster, for appellants in No. 61.
John J. McCreesh, Jr., Philadelphia, for appellants in No 62.
Robert W. Valimont, Doylestown, for appellants in No. 63.
Sheldon W. Farber, Norristown, for appellants in No. 64.
John H. Broujos, Carlisle, for appellants in No. 65.
Thomas R. Ceraso, Greensburg, for appellants in Nos. 66 and 67.
John R. Luke, Pittsburgh, for appellant in No. 68.
W. Bourne Ruthrauff, Bennett G. Picker, Philadelphia, for appellant in No. 69.
James V. Senape, Jr., Freeland, for appellants in No. 70.
John Philip Diefenderfer, Newtown, for appellants in No. 71.
William E. Mowatt, Media, for appellants in No. 73.
John Fuller, Meadville, for appellants in No. 74.
J. Shane Creamer, Atty. Gen., Harold E. Kohn, Counsel to the Governor, Harrisburg, for appellee in No. 69.
J. Shane Creamer, Atty. Gen., Harrisburg, Thomas N. O'Neill, Jr., Philadelphia, for appellee in all other actions.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
On February 7, 1972, after oral argument on 17 of the 18 above-captioned appeals, [1] this Court entered an order declaring that the final plan for the reapportionment of the Pennsylvania Senate and House of Representatives filed by the Pennsylvania Legislative Reapportionment Commission was in compliance with the requirements of the United States Constitution and the Constitution of this Commonwealth. [2] In that order we indicated that opinions would follow. This opinion is in response to that order.
The reapportionment plan that is attacked by appellants is the first work product of the Pennsylvania Legislative Reapportionment Commission established by an amendment to the Pennsylvania Constitution in 1968. [3] Prior to 1968 reapportionment of the Pennsylvania Legislature was effected by act of the General Assembly. [4]
The Legislative Reapportionment Commission consists of five members. Four of the members are the majority and minority leaders of both the Senate and the House of Representatives, or deputies appointed by each of them. [5] The fifth member is the chairman of the Commission. [6] The chairman is selected either by the four other members of the Commission, or, if those four members fail to select a chairman within the time prescribed, the chairman is selected by this Court. [7] The Commission acts by a majority vote of its membership. [8]
The advantages of assignment the responsibility for reapportioning the Legislature to such a commission are quite obvious, and several other states have recently adopted or considered proposals for similar commissions. [9] The equal representation on the Commission provided to the majority and minority members of each house precludes the reapportionment process from being unfairly dominated by the party in power at the moment of apportionment. In addition, the provision for a chairman who can act as a 'tie-breaker' eliminates the possibility of a legislative deadlock on reapportionment such as the one that occurred in the Legislature of this Commonwealth in 1965 and compelled this Court to undertake the task of reapportionment. [10] At the same time the Legislature's expertise in reapportionment matters is essentially retained. [11]
In its epic decision on state legislative apportionment in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), the United States Supreme Court held: '(T)he Equal Protection Clause requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable.' [12] The Court went on to approve 'divergences from a strict population standard (that) are based on legitimate considerations incident to the effectuation of a rational state policy,' [13] but cautioned that these divergences Must not dilute the equal-population principle 'in any significant way.' [14] The Court held: '(T)he overriding objective must be substantial equality of population among the various districts . . ..' [15]
Section 16 of Article 2 of the Pennsylvania Constitution, in addition to incorporating the 'as-nearly-of-equal-population-as-is practicable' mandate of Reynolds, establishes two other factors which a plan for reapportionment of the Pennsylvania Legislature is to meet. That section provides:
[16]
In Reynolds, Section 16's additional objectives for reapportionment plans were specifically recognized as legitimate considerations which can justify some divergences from a strict population standard.
The Court held:
[17]
However, in light of the fact that the Equal Protection Clause requires that in any reapportionment scheme 'the overriding objective must be substantial equality of population,' [18] it is not constitutionally permissible to totally achieve Section 16's objective of respecting the boundaries of political subdivisions. As the Supreme Court explained in Reynolds:
[19]
In addition, Section 16's desire for districts that are 'compact' must also yield, if need be, to the 'overriding objective . . . (of) substantial equality of population.' [20] Moreover, attempts to maintain the integrity of the boundaries of political subdivisions unless it is 'absolutely necessary' to do otherwise will in reality make it impossible to achieve districts of precise mathematical compactness. [21] A great many if not most of the counties, cities, towns, boroughs, townships and wards in this Commonwealth have a geographical shape which falls far short of ideal mathematical compactness. [22]
Thus the approach that this Court adopted when we were obliged to undertake the task of reapportionment in 1966 remains the approach which the Legislative Apportionment Commission must employ in formulating its plan. In Butcher II, 420 Pa. at 309--310, 216 A.2d at 459 (1966), we stated:
[23]
Subsequent to this Court's decision in Butcher II in United States Supreme Court decided Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969), and Wells v. Rockefeller, 394 U.S. 542, 89 S.Ct. 1234, 22 L.Ed.2d 535 (1969). In these cases, which involved Congressional redistricting plans for the states of Missouri and New York, the Court held:
'(T)he command of Art. I § 2, that States create congressional districts which provide equal representation for equal numbers of people permits only the limited population variances which are unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown.' [24]
In Kirkpatrick the Court struck down a Missouri redistricting plan in which the total range of deviation from the ideal district population was 5.97%. [25] The Court not only observed that it was 'not seriously contended that the Missouri Legislature came as close to equality as it might have come,' [26] but stated in addition: '(I)t is simply inconceivable that population disparities of the magnitude found in the Missouri plan were unavoidable.' [27] The Court also held: '(W)e do not find legally acceptable the argument that variances are justified if they necessarily result from a State's attempt to avoid fragmenting political subdivisions by drawing congressional district lines along...
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