Legislative Research Comm'n v. Fischer

Citation366 S.W.3d 905
Decision Date26 April 2012
Docket NumberNos. 2012–SC–000091–TG, 2012–SC–000092–TG.,s. 2012–SC–000091–TG, 2012–SC–000092–TG.
PartiesLEGISLATIVE RESEARCH COMMISSION, Appellant, v. Joseph M. FISCHER; Jeff Hoover; Kim King; Frey Todd; Anthony Gaydos; Alison Lundergan Grimes, in her Official Capacity as Kentucky Secretary of State; Kentucky State Board of Elections; Maryellen Allen, in her Official Capacity as Interim Acting Executive Director of the Kentucky State Board of Elections; David B. Stevens, M.D.; David O'Neill; Jack Stephenson; Marcus McGraw; and Kathy Stein, Appellees.
CourtUnited States State Supreme Court (Kentucky)

OPINION TEXT STARTS HERE

Laura Hromyak Hendrix, General Counsel, Legislative Research Commission, Frankfort, KY, Sheryl G. Snyder, Frost Brown Todd LLC, Louisville, KY, Counsel for Appellant.

Jack Conway, Attorney General of Kentucky, David B. Tachau, Dustin Elizabeth Meek, Jonathan Todd Salomon, Katherine Ellen McKune, Tachau Meek PLC, Louisville, KY, Anita Mae Britton, Britton, Osborne & Johnson, PLLC, Lexington, KY, Counsel for Appellees Alison Lundergan Grimes, in her Official Capacity as Kentucky Secretary of State, Kentucky State Board of Elections, and Maryellen Allen, in her Official Capacity as Interim Acting Executive Director of the Kentucky State Board of Elections.

Victor Bruce Maddox, Jennifer Metzger Stinnett, John David Dyche, Jason Michael Nemes, Fultz, Maddox, Hovious & Dickens, PLC, Louisville, KY, Counsel for Appellees Joseph M. Fischer, Jeff Hoover, Kim King, Frey Todd, and Anthony Gaydos.

Scott White, Morgan & Pottinger, P.S.C., Lexington, KY, Counsel for Appellees David B. Stevens, M.D., David O'Neill, Jack Stephenson, Marcus McGraw, and Kathy Stein.

Opinion of the Court by Chief Justice MINTON.

Applying legal precedent established nearly twenty years ago in Fischer v. State Bd. of Elections1 ( Fischer II ), the trial court found the legislative redistricting plans of House Bill 1 2 facially unconstitutional and issued a temporary injunction preventing the Kentucky Secretary of State and the Kentucky State Board of Elections from implementing the legislative districts created by the Bill. The Legislative Research Commission (LRC) appealed the trial court's decision, and we granted immediate transfer of the appeal to this Court.

The LRC asks us to overrule the constitutional standards for redistricting legislative districts delineated in Fischer II by (1) allowing the General Assembly to divide more than the mathematically minimum number of counties necessary to achieve the population deviation goal and (2) establishing that an overall population deviation among legislative districts of less than 10 percent satisfies the requirement for population equality. The LRC also asks us to overturn the trial court's temporary injunction because it is predicated upon an erroneous conclusion of law.

After carefully considering the important constitutional issues, we affirm the trial court's decision. House Bill 1 violates Section 33 of the Kentucky Constitution in two ways: (1) it fails to achieve sufficient population equality and (2) it fails to preserve county integrity.

The Kentucky House of Representatives and Kentucky Senate redistricting plans of House Bill 1 both contain at least one district with a population deviation greater than 5 percent from the ideal district. And the LRC has not carried its burden of proving this excessive population variation is a result of a consistently applied rational state policy. Both plans also divide more than the mathematically minimum number of counties necessary to achieve approximate population equality.

Because House Bill 1 is unconstitutional and to ensure the orderly administration of the approaching 2012 elections, we remand the case to the trial court to enjoin permanently the conduct of any election under the district boundaries established by the Bill. Because the propriety of the trial court's injunction is not at issue in this appeal, we do not reach the questions of county contiguity and voter disenfranchisement.

I. THE CONTROVERSY OVER HOUSE BILL 1 IS BROUGHT TO THE COURTS.

Joseph Fischer, Jeff Hoover, Kim King, Frey Todd, and Anthony Gaydos filed suit in Franklin Circuit Court asserting various state and federal constitutional challenges to the Kentucky House of Representatives' reapportionment plan adopted by the Kentucky General Assembly in House Bill 1. The trial court granted the motion of David B. Stevens; David O'Neill; Jack Stephenson; Marcus McGraw; and Kathy Stein to intervene as plaintiffs under Kentucky Rules of Civil Procedure (CR) 24.01. As Intervening Plaintiffs, they raised similar constitutional challenges to the Kentucky Senate's redistricting plan contained in House Bill 1. Both Plaintiffs and Intervening Plaintiffs sought to enjoin the Kentucky Secretary of State and Kentucky State Board of Elections from proceeding with the 2012 elections under the redistricting plans of House Bill 1.

Pending its decision on the motion for temporary injunction, the trial court issued a restraining order, under CR 65.03, prohibiting the Secretary of State from implementing the filing deadline for legislative offices. Meanwhile, the trial court granted the LRC's motion under Kentucky Revised Statutes (KRS) 5.0053 to intervene as defendants in the suit.

Following an evidentiary hearing, the trial court issued a temporary injunction based on its findings that House Bill 1 violated Section 33 of the Kentucky Constitution as construed by Fischer II and that substantial issues of law existed concerning the contiguity of counties and disenfranchisement of voters. The trial court designated its finding of unconstitutionality final and appealable and reserved ruling on all other claims and defenses.

The trial court's findings of fact are largely uncontested on appeal. Using the population data from the 2010 census introduced into evidence, the trial court found that the ideal district for the House of Representatives would contain a population of 43,394; and the ideal district for the Senate would contain 114,194 people. Under the reapportionment plans created by House Bill 1, House District 24 contains a population of 45,730, which deviates from the ideal House district by 5.38 percent; and Senate District 8 contains a population of 120,498, which deviates from the ideal Senate district by 5.52 percent.

House Bill 1 also divides 28 counties in the House plan and 5 counties in the Senate plan. The record demonstrates that it is possible to divide as few as 24 counties in the House districts and 4 counties in the Senate districts. The House redistricting plan of House Floor Amendment 1 to House Bill 1 divides only 24 counties, and the Senate redistricting plan contained in Senate Floor Amendment 1 to House Bill 1 divides only 4 counties.4

Under House Bill 1, the overall deviation among the House districts is 10 percent 5 and 9.84 percent among the Senate districts. The overall deviation represents the variance between the least populous and most populous districts in the plan.

The trial court also made findings of fact pertinent to the issues of county contiguity and disenfranchisement of voters under House Bill 1.6

Based on these factual findings, the trial court concluded the following: House Bill 1 violates Section 33 of the Kentucky Constitution because at least one House district and one Senate district have a population variance greater than 5 percent of the ideal districts and because it fails to divide the fewest number of counties in the House and the Senate. The plaintiffs below raised a substantial issue of law regardingwhether one or more House districts contain contiguous counties. And the intervening plaintiffs below raised a substantial issue of law concerning whether House Bill 1 unconstitutionally impairs their right to vote for and elect a senator.

The trial court enjoined the Secretary of State and the Board of Elections from implementing the House and Senate Districts set forth in House Bill 1. Accordingly, the districts as enacted in the 2002 redistricting plan, codified in KRS 5.200, et seq., would remain in place until the General Assembly passes constitutional redistricting legislation. The trial court also extended the filing deadline set forth in KRS 118.165 to allow all candidates and potential candidates the opportunity to make the required candidacy filings under the temporary injunction.

The LRC appealed the trial court's final judgment to the Court of Appeals and filed a CR 65.07 motion for emergency and interlocutory relief from the temporary injunction entered by the trial court. The LRC then moved this Court to transfer its appeal of the trial court's final judgment from the Court of Appeals to the Supreme Court. It also filed with this Court (1) a motion for emergency relief, under CR 65.07(6), to dissolve the temporary injunction entered by the trial court and (2) a CR 76.33 motion to stay enforcement of the trial court's partial judgment declaring House Bill 1 unconstitutional.

On recommendation of the Court of Appeals, under CR 74.02(5), we granted transfer to this Court from the Court of Appeals the LRC's motions to obtain interlocutory and emergency relief. And we entered an order denying the motions for emergency relief and to stay enforcement, leaving the temporary injunction intact. Under CR 74.02(1), we accepted transfer of the LRC's appeal of the final judgment. We expedited briefing and heard oral arguments. Because time was of the essence, following oral arguments, we issued an order affirming the lower court's decision and reiterating that the terms of the injunction entered by the trial court remained in place. This opinion elucidates our order to give the General Assembly guidance in its efforts to timely enact redistricting legislation.

II. THE COURTS HAVE A DUTY TO DETERMINE THE CONSTITUTIONALITY OF HOUSE BILL 1'S REDISTRICTING PLAN.

Kentucky legislative reapportionment plans are governed by both the federal and state constitutions. Section 33 of the Kentucky...

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