Johnson v. State, No. SC 92351.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtPATRICIA BRECKENRIDGE
Citation366 S.W.3d 11
PartiesBob JOHNSON, et al., Appellants, v. STATE of Missouri, et al., Respondents.
Docket NumberNo. SC 92351.
Decision Date25 May 2012

366 S.W.3d 11

Bob JOHNSON, et al., Appellants,
v.
STATE of Missouri, et al., Respondents.

No. SC 92351.

Supreme Court of Missouri,
En Banc.

May 25, 2012.


[366 S.W.3d 15]


Paul C. Wilson, Van Matre, Harrison, Hollis, Taylor and Bacon PC, Columbia, for the Challengers.

Solicitor General James R. Layton, Attorney General's Office, Jefferson City, for the State.


Deputy Solicitor General Jeremiah J. Morgan, Attorney General's Office, Jefferson City, for the Secretary of State.

Harvey M. Tettlebaum and Robert R. Harding, Husch Blackwell LLP, Jefferson City, for the Legislators.

[366 S.W.3d 16]



PATRICIA BRECKENRIDGE, Judge.

Bob Johnson and other Missouri citizens and qualified voters (Plaintiffs) appeal the trial court's judgment on their declaratory judgment action in favor of the State of Missouri and Robin Carnahan, the secretary of state (Defendants). On appeal, Plaintiffs claim that the trial court erred in finding that Plaintiffs failed to prove that the redistricting plan for the Missouri House of Representatives filed by the nonpartisan reapportionment commission does not meet the constitutional requirements for population, contiguity, and compactness. Plaintiffs further claim that the trial court erred in finding that the nonpartisan reapportionment commission did not violate the “sunshine law,” chapter 610, RSMo, and in permitting three current members of the Missouri House of Representatives to intervene in the lawsuit. This Court finds that the trial court did not err in finding that Plaintiffs failed to prove that the House reapportionment map is unconstitutional and in permitting intervention by the three House members. This Court also holds that the trial court properly found that the nonpartisan reapportionment commission did not violate the sunshine law. Accordingly, the trial court's judgment is affirmed.

Factual and Procedural History

The Missouri Constitution provides for 163 members of the House of Representatives, whose districts are reapportioned after each decennial census of the United States. Mo. Const. art. III, sec. 2. In 2011, after the president received the 2010 census report, the governor appointed a bipartisan reapportionment commission, pursuant to Mo. Const. art. III, sec. 2, to develop a new apportionment plan for the House. The Missouri Constitution requires the bipartisan reapportionment commission to file a plan that reapportions the representatives “by dividing the population of the state by the number one hundred sixty-three” and then establishing each district “so that the population of that district shall, as nearly as possible, equal that figure.” Mo. Const. art. III, sec. 2. Additionally, the constitution requires that “[e]ach district shall be composed of contiguous territory as compact as may be.” Id. The final statement of the numbers and boundaries of the districts, together with a map of the district, required approval by at least seven members of the commission and had to be filed with the secretary of state by September 18, 2011. The commission failed to meet the deadline.

Therefore, pursuant to Mo. Const. art. III, sec. 2, this Court appointed a nonpartisan reapportionment commission, consisting of six judges of the court of appeals, to file a new apportionment plan with the secretary of state within 90 days. On November 30, 2011, the nonpartisan reapportionment commission unanimously signed and filed with the secretary of state its House of Representatives reapportionment plan.

Plaintiffs filed a declaratory judgment action to challenge the constitutionality of the plan in the Cole County circuit court on January 27, 2012. Shortly thereafter, three members of the Missouri House of Representatives 1 sought to intervene in the case under Rule 52.12(a). The trial

[366 S.W.3d 17]

court sustained their motion on February 3, 2012. The parties submitted to the trial court their joint stipulation of facts and corresponding exhibits.2 In addition, Plaintiffs submitted the affidavit of Chris Girouard, and the intervenors submitted the affidavit of Thomas Brooks Hofeller, Ph.D.

In their stipulation of facts, the parties stipulated that the nonpartisan reapportionment commission did not act in bad faith or with improper motives in creating the plan. Specifically, the parties stipulated that:

There is no basis for finding that any district was drawn with the purpose of favoring or disfavoring any group of individuals compared to any other group of individuals including, but not limited to, any constitutionally protected or suspect class of citizens[.]

The parties also stipulated that, while the nonpartisan reapportionment commission held a public meeting on October 13, 2011, and gave 24–hour notice, it held at least three other meetings for which “[n]o public notice was posted or otherwise given for these meetings, there was no public vote to close these meetings, and no journal or minutes for these meetings was kept.” Furthermore, the parties stipulated that the nonpartisan reapportionment commission “did not announce the non-public sessions at which they made their decisions.”


Plaintiffs' evidence was an affidavit from Mr. Girouard with attached exhibits. Mr. Girouard is the legislative director for the Democratic caucus of the House and stated that he is “an expert in both the operation and capabilities of the [mapping software]” used by the nonpartisan reapportionment commission. In his affidavit, Mr. Girouard provides statistical analysis of the plan submitted by the nonpartisan reapportionment commission, as well as statistical analysis of a map he prepared, and alternative map proposals from the Republican and Democratic members of the bipartisan reappointment commission that was unable to reach consensus. According to his analysis, the plan filed by the nonpartisan reapportionment commission has a “total deviation range” in population of 7.80 percent, whereas his map and the two maps proposed on August 11, 2011, by the Democratic and Republican members of the bipartisan reapportionment commission (August 11, 2011, proposals) had total deviation ranges of 0.18 percent, 3.87 percent, and 3.27 percent, respectively. He opines that the boundaries for districts 12, 15–18, 21–22, 35–38, 41, 42, 63, 64, 102, and others can be adjusted to create districts that are more equal in population. Finally, Mr. Girouard asserts that districts 43, 50, 70, 98, and 110 are not contiguous because they are split by a river that requires travel outside the district to be able to cross it by bridge.

The affidavit of Dr. Hofeller, submitted by the intervenors, details Dr. Hofeller's opinions as to the compactness and population equality of the districts in the plan. Dr. Hofeller holds a doctorate from Claremont Graduate University in American political philosophy, urban studies, and American politics. He has extensive experience with the legislative redistricting process: He has assisted in creating computerized redistricting systems, was a staff director for the United States House subcommittee on the census from 1998 to 1999, and has drafted and analyzed plans in most states throughout the country.

[366 S.W.3d 18]

Regarding compactness, Dr. Hofeller explains that, although there is no precise definition of “compactness,” there are various mathematical tests that assist in determining compactness. Utilizing these methods, he reviewed and scored the map and “did not find anything in that data that suggest a violation of federal or state compactness principles.” He compared the compactness scores for the nonpartisan reapportionment's plan against the map proposed on August 11, 2011, by the Democratic members of the bipartisan reapportionment commission, the map proposed by the Republican members of the bipartisan reapportionment commission, and Plaintiffs' proposed map and found that the scores for the plan compared favorably against the other maps. He performed a similar comparison against legislative redistricting maps from Maryland and Virginia. Regarding population equality, Dr. Hofeller stated that the total deviation range of 7.81 percent is well within the 10.00 percent range that is prima facie valid under the federal population equality standard for legislative redistricting plans.

After receiving the stipulation of facts and the witnesses' affidavits submitted by Plaintiffs and the intervenors, the trial court executed its findings of fact, conclusions of law, and judgment on February 14, 2012, denying each of Plaintiffs' claims. Plaintiffs appeal.3 On appeal, Plaintiffs claim that the trial court erred in finding that they failed to prove that the plan is unconstitutional under Mo. Const. art. III, sec. 2. They also claim that the plan is unconstitutional under Mo. Const. art. I, secs. 2 and 25 because the districts do not meet the requirements of contiguous territory, compactness, and population equality. Plaintiffs further claim that the trial court erred in finding that there was no sunshine law violation when the nonpartisan reapportionment commission held three closed meetings without public notice 24 hours in advance, held no vote to close the meetings, and took no journal entries or minutes from the meetings. Finally, they claim that the trial court abused its discretion in granting the intervenors' motion to intervene. The intervention and sunshine law claims are addressed first because, if either claim is meritorious, the remaining constitutional claims need not be addressed. See State ex rel. Union Elec. Co. v. Pub. Serv. Comm'n, 687 S.W.2d 162, 165 (Mo. banc 1985) (constitutional questions should be avoided if the case can be fully determined on other grounds).

Standard of Review

In reviewing the validity of the reapportionment map, claims are “subject to proof and defenses as in any other lawsuit.” See Pearson v. Koster, 359 S.W.3d 35, 40 (Mo. banc 2012) (Pearson I ). This Court recently clarified the standard of review for court-tried civil cases in White v. Director of...

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20 practice notes
  • Pearson v. Koster, Nos. SC 92317
    • United States
    • United States State Supreme Court of Missouri
    • July 3, 2012
    ...conflicts with their ultimate burden to show that the Map “clearly and undoubtedly” contravenes the constitution. See Johnson v. State, 366 S.W.3d 11, 33 (Mo. banc 2012) (determining that plaintiffs failed to prove their case, because they “failed to prove that it is possible to achieve gre......
  • Sch. Dist. of Kan. City v. Miss. Bd. of Fund Comm'rs, Nos. WD 74418
    • United States
    • Missouri Court of Appeals
    • December 18, 2012
    ...laws and constitutional provisions are ‘preempted and have no effect’ to the extent they conflict with federal laws.” Johnson v. State, 366 S.W.3d 11, 27 (Mo. banc 2012). The Supremacy Clause “applies with its full force to orders of a federal court” interpreting the federal constitution in......
  • Nevils v. Grp. Health Plan, Inc., No. SC 93134.
    • United States
    • United States State Supreme Court of Missouri
    • February 4, 2014
    ...provides that state laws and constitutional provisions are preempted when in conflict with federal laws. See Johnson v. State, 366 S.W.3d 11, 26–27 (Mo. banc 2012). Consideration of issues arising under the Supremacy Clause “start[s] with the assumption that the historic police powers of th......
  • Empire Dist. Elec. Co. v. Coverdell, No. SD 35226
    • United States
    • Court of Appeal of Missouri (US)
    • December 5, 2019
    ...evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Johnson v. State , 366 S.W.3d 11, 20 (Mo. banc 2012) ; see also Myers v. City of Springfield , 445 S.W.3d 608, 611 (Mo. App. 2014). Intervention should generally be allowed with ......
  • Request a trial to view additional results
10 cases
  • Pearson v. Koster, Nos. SC 92317
    • United States
    • United States State Supreme Court of Missouri
    • July 3, 2012
    ...conflicts with their ultimate burden to show that the Map “clearly and undoubtedly” contravenes the constitution. See Johnson v. State, 366 S.W.3d 11, 33 (Mo. banc 2012) (determining that plaintiffs failed to prove their case, because they “failed to prove that it is possible to achieve gre......
  • Nevils v. Grp. Health Plan, Inc., No. SC 93134.
    • United States
    • United States State Supreme Court of Missouri
    • February 4, 2014
    ...provides that state laws and constitutional provisions are preempted when in conflict with federal laws. See Johnson v. State, 366 S.W.3d 11, 26–27 (Mo. banc 2012). Consideration of issues arising under the Supremacy Clause “start[s] with the assumption that the historic police powers of th......
  • Empire Dist. Elec. Co. v. Coverdell, No. SD 35226
    • United States
    • Court of Appeal of Missouri (US)
    • December 5, 2019
    ...evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Johnson v. State , 366 S.W.3d 11, 20 (Mo. banc 2012) ; see also Myers v. City of Springfield , 445 S.W.3d 608, 611 (Mo. App. 2014). Intervention should generally be allowed with ......
  • Harper v. Mo. State Highway Patrol, WD 82465
    • United States
    • Court of Appeal of Missouri (US)
    • November 5, 2019
    ...and constitutional provisions are ‘preempted and have no effect’ to the extent they conflict with federal laws." Johnson v. State , 366 S.W.3d 11, 26-27 (Mo. banc 2012). Federal law can preempt state law expressly, by implication through "field preemption," or when a state la......
  • Request a trial to view additional results

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