Moore v. State

• Decision Date: 15 May 2014
• Docket Number: No. M2013–00811–COA–R3–CV.,M2013–00811–COA–R3–CV.
• Citation: Moore v. State, 436 S.W.3d 775 (Tenn. App. 2014)
• Parties: Kermit L. MOORE, Jr., et al. v. STATE of Tennessee, et al.
• Court: Tennessee Court of Appeals

436 S.W.3d 775

Kermit L. MOORE, Jr., et al.

v.STATE of Tennessee, et al.

No. M2013–00811–COA–R3–CV.

Court of Appeals of Tennessee.

Sept. 24, 2013 Session.

Jan. 10, 2014.

Application for Permission to Appeal Denied by Supreme Court May 15, 2014.

Robert D. Tuke, Paul W. Ambrosius, Nashville, Tennessee, Van D. Turner, Jr., Memphis, Tennessee, and Anita S. Earls and Allison J. Riggs, Durham, North Carolina, for the appellants, Kermit L. Moore, Jr., Vanecia Kimbrew, Felecia D. Boyd, Regenna Williams, Roshun Austin, L. Lasimba M. Gray, Jr., and G.A. Hardaway, Sr.

Robert E. Cooper, Jr., Attorney General and Reporter, William E. Young, Solicitor General and Janet M. Kleinfelter, Deputy Attorney General, for the appellees, State of Tennessee, Bill Haslam, Tre Hargett and Mark Goins, in their official capacities.

John L. Ryder, Memphis, Tennessee, for the appellee, Tennessee Senate Republican Caucus.

OPINION

DAVID R. FARMER, J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J., W.S., and HOLLY M. KIRBY, J., joined.

DAVID R. FARMER, J.

Plaintiffs, eight Shelby County registered voters, filed an action for declaratory judgment challenging the constitutionality of the 2012 Senate Reapportionment Act on the ground that it divides more counties than necessary in contravention of Article II, Section 6, of the Tennessee Constitution. The trial court denied Plaintiffs' motion for summary judgment and subsequently granted the Defendants' motions to dismiss. The facts are not disputed and we hold that, as a matter of law, the Act is not unconstitutional. We affirm judgment in favor of Defendants.

This appeal arises from an action challenging the constitutionality of the Senate Reapportionment Act of 2012,¹ which reapportioned the Tennessee State Senate (“the Senate”) following the 2010 federal census as required by Article II, section 4, of the Tennessee Constitution. Plaintiffs, eight Shelby County registered voters, contend the Reapportionment Act violates Article II, section 6, of the Tennessee Constitution because it splits eight counties.² Plaintiffs appeal the trial court's judgment granting Defendants' motions to dismiss following denial of Plaintiffs' motion for summary judgment on the grounds that the trial court erred in its assignment of the burden of proof in the matter and erred by determining that the reapportionment act was not unconstitutional where it achieved a variance of 9.17% from the ideal population of 192,306 per district but split eight counties. For the reasons discussed below, we affirm judgment in favor of Defendants/Appellees.

Background and Procedural History

Following the 2000 decennial census, the General Assembly adopted a Senate reapportionmentplan that split seven counties and had an overall range deviation of 9.53% from the then ideal district population of 172,403. The results of the census held in 2010 demonstrated that, as a result of population changes, the Senate districts ranged from 32.4% over the ideal to 24.02% under the ideal, resulting in an overall deviation of 56.42%. The Senate accordingly appointed a redistricting committee and, on September 13, 2011, Lieutenant Governor Ronald Ramsey (“Lt. Gov. Ramsey”) issued a notice to Senate members inviting participation in the redistricting process. In his notice, Lt. Gov. Ramsey notified members that proposed plans must be submitted no later than November 1, 2011. Senate Bill 1514 (“SB 1514”) was the only plan introduced by the November 2011 deadline. On January 13, 2012, Senator Jim Kyle (“Senator Kyle”) offered alternate plans known as Amendment 5 and Amendment 6. Amendment 6 achieved an overall deviation of 0% but split 24 counties. Amendment 5 split five counties and had an overall deviation of 10.05%.

The General Assembly adopted the plan proposed by SB 1514 (hereinafter “the Act” or the “redistricting plan”), which became effective February 9, 2012, and is codified at Tennessee Code Annotated § 3–1–102 (2013 Supp.) The redistricting plan has a deviation range of approximately 4.42% (8,506 persons) over and approximately –4.74 (9,124 persons) under the ideal district population of 192,306, and results in an overall deviation of 9.17%, or 17,630 persons. It also splits eight counties: Bradley, Hamilton, Carter, Davidson, Rutherford, Knox, Sevier, and Shelby. Additionally, the number of Senate districts in Shelby County was reduced from six to five. Current Senate District (“SD”) 32 includes part of Shelby County and Tipton County. We take judicial notice that SD 32 formerly included part of Shelby County, Dyer County and Lauderdale County. Tenn.Code Ann. § 3–1–102 (2003). We also note that SD 28, which formerly was composed of part of Shelby County, is now composed of Giles County, Lawrence County, Lewis County, Maury County, Perry County and Wayne County. Tenn.Code Ann. § 3–1–102 (2013 Supp.) Dyer County and Lauderdale County are now included in SD 27, which also includes Crockett County, Lake County, and Madison County. Id.

In March 2012, Kermit L. Moore, Jr., Vanecia Kimbrew, Felecia D. Boyd, Regenna Williams, Roshun Austin, L. LaSimba M. Gray, Jr., and G.A. Hardaway, Sr. (Mr. Hardaway); (collectively, “Plaintiffs”) all Shelby County registered voters, filed a declaratory judgment action in the Chancery Court for Davidson County, naming as Defendants the State of Tennessee, Governor Bill Haslam in his official capacity, Acting Secretary of State Tre Hargett in his official capacity, and Acting Coordinator of Elections Mark Goins in his official capacity (collectively, “Defendants”). In their complaint, as amended March 19, 2012, Plaintiffs asserted that they were African–American residents of Shelby County and registered voters engaged in local civic organizations. They asserted that the House Ad Hoc Committee on Redistricting did not hold public hearings following the public release of SB 1514; that the Tennessee Black Caucus of State Legislators (“TBCSL”) introduced an alternate plan, Amendment 5, which would split only five counties with a total population variance of 10.05%; and that Amendment 5 was rejected although it was “more compliant with the state constitutional requirement of minimizing split counties, and also compliant with the one-person, one vote requirement of the 14th Amendment [to the United States Constitution].” Plaintiffs asserted the plan offered by the TBCSL was more compliant with the Tennessee Constitution's prohibition against splitting counties, and that, under State ex rel. Lockert v. Crowell, 656 S.W.2d 836 (Tenn.1983), the 10.05% deviation in the TBCSL plan was constitutionally permissible. They prayed for a declaration that the Act was facially unconstitutional pursuant to Article II, Section 6, of the Tennessee Constitution, and for preliminary and permanent injunctive relief.

Defendants answered in April 2012. In their answer, Defendants denied that Plaintiffs were entitled to relief and prayed the court to dismiss the complaint for failure to state a claim.

In June 2012, Plaintiffs filed a motion for summary judgment to which they attached an affidavit of Plaintiff G.A. Hardaway, Sr. (Mr. Hardaway), a member of the Tennessee House of Representatives and vice chair of the TBCSL; an affidavit of Anthony Fairfax (Mr. Fairfax), a demographic and mapping consultant and president of Census–Channel LLC; and a document entitled “The ‘Regional Integrity Plan’—The Tennessee Senate for a new decade.” The matter was set to be heard on July 27; on July 23 Defendants moved to continue the matter. Plaintiffs filed their statement of undisputed facts on September 21. In their statement, Plaintiffs reiterated only that the redistricting plan adopted by the General Assembly split eight counties and achieved a variance of 9.17% in contrast to Amendment 5, which split only five counties and resulted in a variance of 10.05%. On September 27, the Republican Caucus of the Tennessee State Senate (“the Republican Caucus”) filed a motion to intervene as a Defendant in the matter, which was granted by consent order entered the same day.

The Republican Caucus answered and on November 7 the Republican Caucus and Defendants filed memorandums in opposition to Plaintiffs' motion for summary judgment. In their memorandum, Defendants asserted, in part, that under Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973), a redistricting plan with a population variance over 10% creates a prima facie case of discrimination. Defendants further asserted that compliance with the “ten percent rule” does not shield a state from a successful challenge, but that the best redistricting plan must achieve as nearly equal population as practicable. Defendants submitted that the Tennessee Supreme Court's statement in State ex rel. Lockert v. Crowell (Lockert I), 656 S.W.2d 836 (Tenn.1983), that a good faith plan resulting in a deviation of up to 14% might be “safe from attack” notwithstanding that a deviation of less than 10% is presumed “ de minimis ” was later negated by Rural West Tennessee African–American Affairs Council v. McWherter, 836 F.Supp. 447 (W.D.Tenn.1993). Defendants asserted that the redistricting plan adopted by the General Assembly was prima facie constitutional under the Equal Protection Clause, and that Amendment 5 was presumptively unconstitutional. They further asserted that Plaintiffs had failed to carry their burden of proof to demonstrate that the “trade-offs” made by the General Assembly in balancing population equality, minority vote dilution considerations, integrity of political subdivisions and territorial cohesion were unreasonable or irrational.

In its memorandum in opposition to summary judgment, the Republican Caucus examined the history of redistricting case law and asserted that the “10% rule” had been rejected by the Court in Larios v. Cox, 300 F.Supp.2d 1320 (N.D.Ga.2004), summarily aff'd, Cox v. Larios, 542 U.S. 947, 124 S.Ct. 2806, 159 L.Ed.2d 831 (2004)....