Fonfara v. Reapportionment Com'n

• Citation: 610 A.2d 153,222 Conn. 166
• Decision Date: 26 May 1992
• Docket Number: No. 14421,14421
• Court: Supreme Court of Connecticut
• Parties: John W. FONFARA et al. v. REAPPORTIONMENT COMMISSION.

Page 153

610 A.2d 153

222 Conn. 166

John W. FONFARA et al. v. REAPPORTIONMENT COMMISSION.

No. 14421.

Supreme Court of Connecticut.

Argued Jan. 16, 1992.

Decided May 26, 1992.

Wesley W. Horton, with whom were Alexandra Davis and Karen Murdock, Hartford, for appellant (petitioner).

Aaron S. Bayer, Deputy Asst. Atty. Gen., with whom were Henry S. Cohn and Daniel Schaeffer, Asst. Attys. Gen., and, on the brief, Richard Blumenthal, Atty. Gen., and Arnold B. Feigin, Asst. Atty. Gen., for appellee (respondent).

Janet Bond Arterton, New Haven, filed a brief, for New Haven Bd. of Aldermen as amicus curiae.

Jorge A. Simon, Corp. Counsel, Thomas R. Cox, Asst. Corp. Counsel, and Karen Buffkin, Legal Intern, filed a brief, for City of Hartford as amicus curiae.

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS, COVELLO, BORDEN and BERDON, JJ.

PETERS, Chief Justice.

The principal issue in this case is whether this court should overturn a plan for reapportionment of the state house of representatives without a prima facie showing that the plan manifests an improper reconciliation of the federal constitutional principle of one person, one vote, with the state constitutional principle of town integrity. The petitioners, who are citizens and electors of the state, have invoked the original jurisdiction conferred upon this court by article third, § 6(d) of the Connecticut constitution, as amended, "to correct any error made in [the commission's] plan of districting." The petitioners allege that the plan's redistricting for the house of representatives, adopted by the Reapportionment Commission on November 29, 1991, excessively and unnecessarily divides towns so as to violate the town integrity principle contained in article third, § 4 of the Connecticut constitution. On January 23, 1992, after an oral argument on the merits of the petitioners' allegations, this court announced its judgment denying the petitioners the relief they sought, with our opinion or opinions to follow thereafter. We publish these opinions herewith.

A decennial reapportionment of General Assembly and Congressional districts is required by article third, § 6 of the constitution, as amended by articles XII, XVI, and XXVI of the amendments to the constitution. ¹ Pursuant to this requirement, the General Assembly appointed a committee to devise a reapportionment plan in accordance with the 1990 census data. Although the committee held a number of public hearings and did a substantial amount of work, it was unable to produce a final plan before its deadline of September 15, 1991. Therefore, pursuant to article third, § 6, as amended, it was superseded by a Reapportionment Commission. Seven members of the eight-member General Assembly committee became members of the nine- commission, which also inherited the committee's records and computer data bases. The commission arrived at a reapportionment plan for the House of Representatives consisting of 151 districts with a maximum population deviation of 8.779 percent. The petition challenging the validity of the plan was then brought to this court.

The petitioners claim, first, that article third, § 6(d) of the Connecticut constitution requires this court to act, not as a court, but as a superlegislature in reviewing the commission's plan. Second, the petitioners claim that, however this court views its jurisdiction, the commission's plan must be set aside because it unnecessarily violates the town integrity principle contained in article third, § 4 of the Connecticut constitution. We will consider these claims in turn.

I

The petitioners' contention that the constitution confers legislative powers upon this court to correct and to implement a plan for redistricting has four overlapping bases. They ask us to note that: (1) article third is the legislative and not the judicial article of the constitution; (2) article third, § 6(d) would require this court to establish a plan of districting, and thus necessarily to undertake a legislative role, had the commission produced no plan at all; (3) article third provides no avenue for judicial review of the commission's response to a mandate from this court for revision of a reapportionment plan; and (4) the constitution singles out a reapportionment plan promulgated by a commission, as distinguished from such plans devised by the General Assembly, for special judicial scrutiny under article third, § 6(d). Although these textual arguments require serious consideration, we are unpersuaded.

Analysis of the governmental structure created by our constitution must begin with the central role that the constitution assigns to the principle of separation of powers. "Prior to the adoption of our first constitution in 1818, legislative, executive and judicial powers had been centered in, and exercised by, the General Assembly and its predecessor, the General Court. One of the great achievements, if not the greatest achievement, of the constitution of 1818 was the division of the powers of government into three distinct departments, legislative, executive and judicial, each confided to a separate magistracy.... This separation was accomplished by article 2 of the constitution of 1818 entitled 'Of the Distribution of Powers', which read as follows: 'The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy--to wit--those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.' This provision, unchanged except for insignificant variations in punctuation, was carried into the constitutions of 1955 (article 2) and 1965 (article 2)." (Citations omitted.) Adams v. Rubinow, 157 Conn. 150, 153-54, 251 A.2d 49 (1968).

"[T]he separation of powers provision of our constitution forbids the imposition upon a judge ... of clearly nonjudicial powers or duties." Id. at 175, 251 A.2d 49. Thus we have held unconstitutional an act conferring on the probate court administrator the power to fix fees; id.; and a statute giving courts the power of regulating the location, construction, and operation of street railways. Appeal of Norwalk Street Ry. Co., 69 Conn. 576, 37 A. 1080 (1897).

Even a principle that is rooted in the constitution can, of course, be abrogated by constitutional amendment. See In re Interrogatories Propounded by Senate, 189 Colo. 1, 536 P.2d 308, 318 (1975). We will not, however, presume an intent to make a radical revision of a long established constitutional principle. Without a clear showing that the provisions of article third were intended to override those contained in article second, this court will not undertake functions that fall outside our judicial role.

The text of article third, § 6(d) does not unambiguously demonstrate an intent to confer legislative rather than judicial powers upon this court. Significantly, § 6(d) uses judicial terms to describe this court's responsibilities. "Original jurisdiction" is "vested" in this court. We may act only in response to a "petition." We have the power "to correct any error," or to compel the commission to perform its duty by "mandamus." Not later than forty-five days from the filing of the petition, this court "shall render its decision." This terminology is not normally associated with the assignment of legislative power. Furthermore, nothing in the legislative history of the adoption of § 6(d) demonstrates any intent to enlarge the powers of this court to have us act as a superlegislature.

A construction of article third, § 6(d) that ordinarily confines courts to an exercise of judicial powers makes sense when the constitutional provisions governing reapportionment are examined as a whole. Our constitution envisages three different reapportionment scenarios. When the General Assembly promulgates a reapportionment plan, a state court challenge to the validity of that plan must be mounted by filing a declaratory judgment action invoking the equity powers of the Superior Court. See Miller v. Schaffer, 164 Conn. 8, 19, 320 A.2d 1 (1972); see also Logan v. O'Neill, 187 Conn. 721, 448 A.2d 1306 (1982). When a reapportionment commission promulgates a reapportionment plan, article third, § 6(d) confers expedited direct jurisdiction on this court to consider the validity of such a challenge. Only when a reapportionment commission fails to promulgate a reapportionment plan at all is this court given direct, legislative authority to fill the constitutional vacuum.

We reject the petitioners' contention that a residual provision for an extraordinary remedy to deal with dual failure by the legislature and the commission to promulgate a timely reapportionment plan enlarges the scope of our responsibility when the legislature or the commission has acted in timely fashion. The provisions of article third themselves rebut such an argument. Once a duly appointed reapportionment commission publishes a redistricting plan, article third, § 6(c) prescribes that "such plan of districting shall have the full force of law." Thereafter, this court's review of the validity of the plan, like any other judicial review, is impliedly limited to an inquiry into the plan's compliance with applicable state and federal constitutional mandates. Such a review invokes this court's judicial authority and does not warrant our exercise of legislative power.

The practical consequences of a different construction of article third, § 6 also counsel against acceptance of the petitioners' claim that this court should act as a superlegislature. As a superlegislature, we would presumably not be bound by the decisions reached by the commission, rendering its work essentially for nought. If that were the case, it would be pointless to have detailed constitutional attention paid to the composition of a commission, or to burden the commission with the heavy task of devising a plan within two and one-half months, when its judgments...