Hickel v. Southeast Conference
| Decision Date | 29 December 1992 |
| Docket Number | Nos. S-5093,S-5154 and S-5156,S-5106,s. S-5093 |
| Citation | 846 P.2d 38 |
| Parties | Walter J. HICKEL, Governor of Alaska, State of Alaska, Tuckerman Babcock, Allen Vezey, Mary Lynne Wood, John C. Ingram, Robert Pickrell, Orie Williams, Fish and Game Fund, Petitioners, v. SOUTHEAST CONFERENCE, a non-profit Alaska corporation, Peggy Ann McConnochie, Fred E. Reeder; Matanuska-Susitna Borough, Steve Cypra, Ted Smith, Al Jorgensen, Harold Newcomb, John Stein, Duncan Frazier, Gary Thurlow, Elsie O'Bryan, Ronda L. Kelley; Oliver Leavitt, Jacob Adams, George Ahmaogak, William Leavitt, Benjamin Nageak, Ronald Brower, Max Ahgeak, Charles D.N. Brower, Charles "Chuck" Greene, Roswell Schaeffer, Marie Greene, Reginald Cleveland, Charles Curtis, Willie Goodwin, Jr.; Mitchell A. Demientieff, Jerry Isaac, Leo Morgan, Nick Jackson, Clyde Peter; Alaska Democratic Party, Lidia L. Selkregg, Respondents. SOUTHEAST CONFERENCE, a non-profit Alaska corporation, Petitioners, v. Walter J. HICKEL, Governor of Alaska, State of Alaska, Respondents. |
| Court | Alaska Supreme Court |
Virginia Ragle and Stephen C. Slotnick, Asst. Attys. Gen., Juneau, Mary A. Lundquist, Asst. Atty. Gen., Anchorage, Charles Cole, Atty. Gen., Juneau, for petitioners Walter J. Hickel, Governor of Alaska and State of AK.
Thomas M. Daniel, Perkins Coie, Anchorage, for petitioner Fish and Game Fund.
Myra M. Munson, Sonosky, Chambers, Sachse, Miller & Munson, Juneau, Donald J. Simon, Sonosky, Chambers, Sachse & Enderson, Washington, DC, for respondents Southeast Conference, et al. and Mat-Su Borough, et al.
David C. Crosby, Juneau, James Wickwire, Wickwire, Greene, Crosby & Seward, Seattle, WA, for respondents Leavitt, et al.
Don Clocksin, Wagstaff, Pope & Clocksin, Anchorage, for respondents Alaska Democratic Party, et al.
Michael J. Walleri, Tanana Chiefs Conference, Inc., Fairbanks, for respondents Demientieff, et al.
Robert P. Blasco and Mary A. Nordale, Robertson, Monagle & Eastaugh, Juneau, for amicus curiae Fairbanks North Star Borough.
Joel H. Bolger, Jamin, Ebell, Bolger & Gentry, Kodiak, for amicus curiae Kodiak Island Borough.
Kenneth P. Jacobus, Anchorage, for amicus curiae Constance Zawacki and The Republican Party of Alaska.
Michael W. Price, Groh, Eggers & Price, Anchorage, for amicus curiae Municipality of Anchorage.
Bruce Boltar, Dillingham, for amicus curiae Bristol Bay Native Ass'n.
Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.
At issue in this petition for review is the validity of the 1991 Proclamation of Reapportionment and Redistricting Plan (plan) issued by Governor Walter J. Hickel.
Under the Alaska Constitution, the governor has the power and duty to reapportion the state legislature every ten years. Alaska Const. art. VI, § 3; Wade v. Nolan, 414 P.2d 689, 700 (Alaska 1966). In December 1990, Governor Hickel appointed a five member advisory reapportionment board (Board), as is required by article VI, section 8 of the Alaska Constitution. The Board was required to prepare and submit to the Governor a plan for reapportionment and redistricting following the reporting of the decennial census. 1
In January 1991, the Board held an organizational meeting, elected Allen Vezey as chair and appointed Tuckerman Babcock as director. In March it adopted the following policies to guide the development of redistricting plans:
* The population base is the 1990 population reported by the United States Census Bureau for the State of Alaska.
* The redistricting plan will be composed of single-member districts.
* One person, one vote: equal protection for all individuals will be realized by equal population among districts, with the least populated and most populated districts separated by a variance of no more than two percent.
* Federal Voting Rights Act: protect and enhance minority political voting strength by a non-retrogression policy and by considering individual linguistic and ethnic blocs.
* Alaska Constitution: compact, contiguous and relatively integrated socio-economic areas for House districts.
* Consider preservation of political subdivision boundaries.
* Consider public testimony, which will be incorporated into the record if received within 75 days after receipt of the United States Census PL94-171 data.
* Accept alternative plans submitted up to 60 days after receipt of the United States Census PL94-171 data for input into the state's computer system, if received in a form allowing direct input into the computer or on United States Geological Survey maps or United States Coast and Geodetic Survey maps. 2
With the assistance of computer technology, which made possible more detailed analysis of potential redistricting than was previously available, the Board and its staff began forming a reapportionment plan based on the adopted policies. The Board received the decennial census report from the United States Bureau of the Census in March 1991. The Board held a number of public hearings and reviewed alternative redistricting plans submitted by various interest groups. In June 1991, the Board delivered its report and proposed plan to the Governor.
On September 5, 1991, Governor Hickel issued his Proclamation of Reapportionment and Redistricting and Accompanying Statement. The final plan 3 included several relatively minor changes to the Board's proposed district boundaries. The proclamation directed the Attorney General to submit the plan to the United States Department of Justice for preclearance in accordance with section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c (1988). 4
Seven lawsuits were filed in superior court challenging the Governor's plan. 5 Two cases were dismissed with prejudice pursuant to stipulations. Five cases were consolidated for trial before Superior Court Judge Larry R. Weeks. 6
After a sixteen day bench trial, Judge Weeks concluded that the Governor's plan was invalid because it violated the Alaska Constitution. Specifically, Judge Weeks concluded that the plan was not in compliance with article VI, section 6 of the Alaska Constitution because two of the districts were not "compact" and eight of the districts did not comprise "as nearly as practicable a relatively socio-economically integrated area." He determined that the Board "needlessly nullified Alaska constitutional requirements" in its attempt to reach its various policy goals, including the creation of districts with no more than two percent population deviation from the ideal district size. He also concluded that the Board failed to give due consideration to the possibility of excluding non-resident military personnel from the population base, and that this failure was arbitrary and unreasonable. Judge Weeks held that the Board violated the Open Meetings Act, AS 44.62.310, but ruled that voiding the plan on the basis of this violation was not in the public interest. He also concluded that the Board violated the Public Records Act, AS 09.25.110-140, and the Procurement Code, AS 36.30.
Pursuant to Alaska Appellate Rule 402(a), Governor Hickel and the State of Alaska (State) petitioned this court for review, contending that Judge Weeks had erred: 1) in finding that the plan violated the equal protection clause of the Alaska Constitution; 2) in his interpretation of article VI, section 6 of the Alaska Constitution and in his determination that the plan violated this section; 3) in concluding that the Open Meetings Act, AS 44.62.310, and the Public Records Act, AS 09.25, applied to and were violated by the Governor's Advisory Reapportionment Board; and 4) in substituting his judgment for that of the Board with regard to matters within the Board's discretion.
We granted the State's petition to review the decision, and expedited the proceedings. On May 28, 1992, we concluded that the Governor's plan violated the Alaska Constitution. See Appendix B. We affirmed the superior court's findings of fact and conclusions of law that House Districts 1, 2, 3, 6, 26, 28, 34 and 35 violate requirements of article VI, section 6 of the Alaska Constitution. We also affirmed its holdings that the Open Meetings Act and the Public Records Act apply to the Board. However, we reversed its holding that the Board's decision not to exclude non-resident military from the population base was arbitrary and unreasonable.
In a separate Order of Remand, later corrected, we directed the superior court to remand the case to the Board for formulation of a final plan. However, because of time constraints, we also directed the court to formulate an interim plan so that 1992 state elections might proceed in conformity with the requirements of the United States Constitution, the Alaska Constitution and the federal Voting Rights Act. Further, we authorized the court to employ experts or masters to assist in the formulation of an interim plan. See Appendix C.
Thereafter the superior court appointed three masters. After receiving instructions from the court 7 and reviewing alternative plans proposed by the parties, the masters presented a recommended interim plan to the court on June 14. In Orders dated June 18 and 19, 8 the superior court accepted the Masters' recommendation, with several modifications including a redrawing of the Fairbanks House Districts. The parties cross-petitioned this court for review of the court's orders. On June 25, after considering oral and written arguments, we granted the petition and affirmed the court's interim plan with modifications required by our determination that the court had erred in redrawing the Fairbanks House Districts. 9
Now the goal of all apportionment plans is simple: the goal is adequate and true representation by the people in their elected legislature, true, just, and fair representation. And in deciding and in weighing this plan, never lose sight of that goal, and...
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