Hellar v. Cenarrusa

• Decision Date: 16 April 1984
• Docket Number: No. 15201,15201
• Citation: 106 Idaho 586,682 P.2d 539
• Parties: William and Gretchen HELLAR, husband and wife; Bingo Si John; and Coeur D'Alene, Idaho, a Municipal Corporation, Plaintiffs-Appellants Cross-Respondents and Samuel A. Rohrer; Douglas E. Long, Benewah County, a Political Subdivision of the State of Idaho; and Post Falls Highway District, Plaintiffs, v. Pete T. CENARRUSA, Secretary of the State of Idaho; Clifford Chapin, in his official capacity as Bonner County Clerk and on behalf of those similarly situated; and State of Idaho, Defendants-Respondents-Cross-Appellants, and John V. Evans, Governor of the State of Idaho, Appellant-Cross Respondent by Intervention.
• Court: Idaho Supreme Court

Page 539

682 P.2d 539

106 Idaho 586

William and Gretchen HELLAR, husband and wife; Bingo Si John; and Coeur D'Alene, Idaho, a Municipal Corporation, Plaintiffs-Appellants Cross-Respondents and Samuel A. Rohrer; Douglas E. Long, Benewah County, a Political Subdivision of the State of Idaho; and Post Falls Highway District, Plaintiffs, v. Pete T. CENARRUSA, Secretary of the State of Idaho; Clifford Chapin, in his official capacity as Bonner County Clerk and on behalf of those similarly situated; and State of Idaho, Defendants-Respondents-Cross-Appellants and John V. Evans, Governor of the State of Idaho, Appellant-Cross Respondent by Intervention.

No. 15201.

Supreme Court of Idaho.

April 16, 1984.

Raymond C. Givens and W.W. Nixon, Coeur d'Alene, for plaintiffs-appellants cross-respondents Hellar, et al

Jim Jones, Atty. Gen. and Kenneth R. McClure, Deputy Atty. Gen., Boise, for defendants-respondents-cross-appellants Cenarrusa, et al. and for the House of Representatives of the State of Idaho as intervenors.

Patrick D. Costello, Office of the Governor, Boise, for Governor Evans.

Eugene C. Thomas and Jeffrey A. Strother, Boise, of the firm of Moffatt, Thomas, Barrett and Blanton, Ctd., Sp. Deputy Attys. Gen., Boise, for James E. Risch as President Pro Tem of the Idaho Senate and T.W. Stivers as Speaker of the Idaho House of Representatives, intervenors.

Dennis Milbrath, Boise, for certain Hispanic intervenors.

Gary L. Montgomery, Boise, for certain Ada County Legislators et al., intervenors.

HUNTLEY, Justice.

We have been petitioned, pursuant to our retained jurisdiction in Hellar v. Cenarrusa, 105 Idaho ---, 682 P.2d 524, January 1984 (Hellar II ), to rule upon the constitutionality of the legislative reapportionment scheme enacted as H.B. AS 746 in the closing hours of the recent legislative session.

Our decision in Hellar II held in pertinent part that "... the 1984 election shall be conducted under [reapportionment] Plan 14-B ... unless the legislature enacts a constitutional alternative reapportionment plan," and that "should an alternative plan be enacted and signed into law, this court may review said plan ... [and] will determine [its] constitutionality...."

The plaintiffs petition this court to declare the scheme of H.B. 746 in violation of the United States Constitution because (1) it has an impermissibly large population deviation (32.94%); and (2) the legislative districts located within three counties are gerrymandered by unnecessarily splitting neighborhoods and rural and urban populations to preserve incumbencies.

I. STANDARD OF REVIEW

In ruling upon the petition before us, we are constrained by two guiding principles:

First, the apportionment of the legislature is, in the first instance, a matter of legislative discretion and judgment. The courts will not intervene unless a legislatively enacted plan fails to pass constitutional muster.

Second, this court, in determining whether a plan is violative of the United States Constitution, must follow pertinent rulings of the Supreme Court of the United States.

II. EQUAL REPRESENTATION

The Equal Protection Clause of the Fourteenth Amendment of the United States Constitution requires that a state, in apportioning its legislature, "make an honest and good faith effort to construct districts ... as nearly of equal population as is practicable." Reynolds v. Sims, 377 U.S. 533, 577, 84 S.Ct. 1362, 1389, 12 L.Ed.2d 506 (1964). The legal research before us presented literally dozens of decisions of the United States Supreme Court and other Federal Courts which clearly compel us to declare H.B. 746 unconstitutional because it provides the people of some legislative districts with as much as 32.94% less voting power than the citizens of other districts.

In Brown v. Thomson, 462 U.S. 835, 103 S.Ct. 2690, 77 L.Ed.2d 214 (1983), the United States Supreme Court most recently summarized its previous reapportionment holdings with the following statement of the law which we are pledged to follow:

"Our decisions have established, as a general matter, that an apportionment plan with a maximum population deviation under 10% falls within this category of minor deviations. See, e.g., Connor v. Finch, 431 U.S. 407, 418, 52 L.Ed.2d 465, 97 S.Ct. 1828 [1835] (1977); White v. Regester, 412 U.S. 755, 764, 37 L.Ed.2d 314, 93 S.Ct. 2332 [2338] (1973). A plan with larger disparities in population, however, creates a prima facie case of discrimination and therefore must be justified by the State. See Swann v. Adams, 385 U.S. 440, 444, 17 L.Ed.2d 501, 87 S.Ct. 569 (1967) ('De minimis deviations are unavoidable,but variations of 30% among senate districts and 40% among house districts can hardly be deemed de minimis and none of our cases suggests that differences of this magnitude will be accepted, without a satisfactory explanation grounded on acceptable state policy.') The ultimate inquiry, therefore, is whether the legislature's plan 'may reasonably be said to advance [a] rational state policy' and, if so, 'whether the population disparities among the districts that have resulted from the pursuit of this plan exceed constitutional limits.' Mahan v. Howell, 410 U.S. 315, 328, 35 L.Ed.2d 320, 93 S.Ct. 979 (1973). (Emphasis supplied.)

As applied to H.B. 746 the conclusion must be that since the population deviation is 32.94% (not "under 10%"), the deviation is not in the "minor" category, but to the contrary, creates a prima facie case of discrimination and must be justified by the state.

The defendants herein argue that the grossly disparate population deviation of H.B. 746 can be justified because of Idaho's terrain, its shape, and its relatively sparce population. That argument ignores the rule of law that such justifications will excuse a presumptively discriminatory population deviation (if it is not too large to be excused) only where a good faith effort has been made in constructing districts "as nearly of equal population as practicable." Reynolds v. Sims, supra, 377 U.S. at 577, 84 S.Ct. at 1389. The rule is set forth in Brown, supra, in footnote 6 to the majority opinion:

"6. In contrast, many of our prior decisions invalidating state apportionment plans were based on the lack of proof that deviations from population equality were the result of a good-faith application of legitimate districting criteria. See, e.g., Chapman v. Meier, 420 U.S. 1, 25, 42 L.Ed.2d 766, 95 S.Ct. 751 (1975) ('It is far from apparent that North Dakota policy currently requires or favors strict adherence to political lines.... Furthermore, a plan devised by [the special master] demonstrates that ... the policy of maintaining township lines [does not] preven[t] attaining a significantly lower population variance.'); Kilgarlin v. Hill, 386 U.S. 120, 124, 17 L.Ed.2d 771, 87 S.Ct. 820 (1967) (per curiam) (district court did not 'demonstrate why or how respect for the integrity of county lines required the particular deviations' or 'articulate any satisfactory grounds for rejecting at least two other plans presented to the court, which respected county lines but which produced substantially smaller deviations'); Swann v. Adams, 385 U.S. 440, 445-446, 17 L.Ed.2d 501, 87 S.Ct. 569 [572-573] (1967) (no evidence presented that would justify the population disparities)." (Emphasis added.)

Similarly, it should be said of H.B. 746 that Idaho's state constitutional mandate of maintaining the integrity of county boundaries, together with other policies articulated in our earlier decision in Hellar v. Cenarrusa, 104 Idaho 858, 664 P.2d 765 (1983) (Hellar I ), do not prevent attaining a "significantly lower population variance" than 32.94%. Indeed, the record before us establishes no less than 10 alternative plans with population deviations of less than 10% and which serve the same state policies as those advanced in justification of the 32.94% deviation:

Plans Deviation

---- ---------

6A & 6B 8.76%

11A & 11B 9.55%

12A & 12B 9.01%

13A & 13B 9.01%

14A & 14B 9.65%

Additionally the record establishes seven other plans (also with "B" variations) with deviations of less than 19% (making in all 12 "A" plans and 12 "B" plans with deviations under 19%). Both Plan 14-B and H.B. 746 advance the state policy of not dividing counties in the formation of legislative districts. Since both meet that requirement it cannot logically be argued that the scheme of H.B. 746 is necessary to preserve that state policy. The four dissenting Justices in Brown v. Thomson, supra, noted:

"We have warned that although maintenance of county or other political boundaries can justify small deviations, it cannot be allowed to negate the fundamental principle of one person, one vote. E.g., Connor, 431 U.S., at 419, 52 L.Ed.2d 465, 97 S.Ct. 1828 [at 1836]."

It is argued that language in our preceding decision in Hellar v. Cenarrusa, 105 Idaho ---, 682 P.2d 524 (1984) (Hellar II ) suggests a determination of constitutionality for a plan with 32.94% population deviation. While it is true that we stated in dicta in Hellar II that a plan with an assumed population deviation of 41.3%, in light of Brown, supra, would not necessarily be unconstitutional where it was designed to accommodate Idaho's "county-boundary" constitutional requirement and unique state policies and interest, such a supposition would certainly not apply where alternative plans exist which meet the same objectives and have below 10% deviations. It would be unreasonable to assume we intended to suggest our state legislature could ignore federal constitutional case law. The United States Supreme Court cases speak for themselves.

Defense counsel were requested to provide, if such existed, one single federal court decision sanctioning deviations in excess of 20% when plans with less than 10% were before the court. None were cited (our research indicates there are none). Thus, although we are most reluctant to declare H.B. 746 unconstitutional, the requirement...