Pearson v. Koster

• Decision Date: 17 January 2012
• Docket Number: SC 92203.,Nos. SC 92200,s. SC 92200
• Citation: 359 S.W.3d 35
• Parties: Kenneth PEARSON, et al., Appellants, v. Chris KOSTER, et al., Respondents.Stan McClatchey, et al., Appellants, v. Robin Carnahan, et al., Respondents.
• Court: Missouri Supreme Court

359 S.W.3d 35

Kenneth PEARSON, et al., Appellants,

v.Chris KOSTER, et al., Respondents.Stan McClatchey, et al., Appellants,

v.Robin Carnahan, et al., Respondents.

Nos. SC 92200

SC 92203.

Supreme Court of Missouri, En Banc.

Jan. 17, 2012.

Gerald P. Greiman, Spencer Fane Britt & Browne LLP, St. Louis, for the Voters in SC92200.

Jamie B. Landes, Lee's Summit, for the Voters in SC92203.

State Solicitor James R. Layton, Attorney General's Office in Jefferson City, and Edward D. Greim, Graves Bartle Marcus & Garrett LLC, in Kansas City, for State.PER CURIAM.

Article III, section 45 of the Missouri Constitution establishes when the General Assembly must redistrict Missouri for the election of members to the United States House of Representatives, and that the districts “shall be composed of contiguous territory as compact and nearly equal in population as may be.” Plaintiffs alleged in their petitions that the districts were not drawn “as compact ... as may be,” specifically referring to the redistricting map and the configuration of certain districts. Defendants filed a motion to dismiss for failure to state a claim or, in the alternative, a motion for judgment on the pleadings. The circuit court ruled, “[h]aving reviewed the pleadings, briefs, and points raised at oral argument and having considered only facts appearing in the pleadings, the court hereby grants both motions and dismisses both cases.”

A motion to dismiss may not be sustained “if the facts alleged meet the elements of a recognized cause of action.” Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993). The pleadings, including the map illustrating House districts 3 and 5, raise issues of fact concerning whether various districts, particularly House districts 3 and 5, are “composed of contiguous territory as compact ... as may be.” Mo. Const. art. III, sec. 45. The judgments are reversed, and the cases are remanded.

I. Facts and Procedural History

Article III, section 45 of the Missouri Constitution was triggered when the results of the 2010 United States Census revealed that the population of the State of Missouri grew at a lower rate than the population of other states and Missouri would lose one member of its delegation to the United States House of Representatives. It is the responsibility of the Missouri General Assembly to draw new congressional election districts. The new districts will take effect for the 2012 election and remain in place for the next decade or until a Census shows that the districts should change. While Missouri previously was composed of nine congressional districts, the General Assembly had to draw a new map that reduced the number of districts to eight.

In April 2011, both houses of the General Assembly approved a congressional redistricting map embodied in House Bill 193 (“the Map”). See Appendix A. Governor Jay Nixon vetoed the Map. Following the veto, the General Assembly voted to override the Governor's veto and adopted the Map on May 4, 2011.

Six Missouri citizens and qualified voters residing in various areas of the state brought an action in the Circuit Court of Cole County against Attorney General Chris Koster and Secretary of State Robin Carnahan, in her official capacity as the chief elections officer for the State, challenging the validity of the congressional redistricting plan. A second group of citizens and qualified voters filed an action in the Circuit Court of Cole County against Secretary Carnahan, seeking declaratory and injunctive relief. Collectively, both sets of plaintiffs (hereinafter “Plaintiffs”) seek to invalidate the Map and prevent Secretary Carnahan from conducting elections in accordance with the map.

Defendants Koster and Carnahan answered the petitions. Defendant Koster filed a motion to dismiss for failure to state a claim or, alternatively, for judgment on the pleadings in response to the Pearson Plaintiffs' petition. Representative John J. Diehl and Senator Scott T. Rupp, the chairs of the state House and Senate redistricting committees that drew the Map, intervened as defendants in both cases. They filed an answer and a motion to dismiss or for judgment on the pleadings in both cases. Defendants Koster, Carnahan, and intervenors are referred to collectively as “Defendants.”

After oral argument, but without conducting an evidentiary hearing or making any finding of facts, the circuit court dismissed both cases. The extent of its order and judgment reads:

Defendant Attorney General Chris Koster, and intervenors in Case Nos. 11AC–CC00624 and 11AC–CC00752, have moved for judgment on the pleadings or, in the alternative, for dismissal for failure to state a claim. Having reviewed the pleadings, briefs, and points raised at oral argument, and having considered only facts appearing in the pleadings, the Court hereby GRANTS both motions and dismisses both cases.

II. Analysis

A. Count I: Compactness

Article III, section 45 of the Missouri Constitution sets out only three requirements for the redistricting of seats in Missouri for the United States House of Representatives. The districts “shall” be composed of “contiguous territory as compact and as nearly equal in population as may be.” Mo. Const. art. III, sec. 45. The purpose of these requirements is “to guard, as far as practicable, under the system of representation adopted, against a legislative evil, commonly known as ‘gerrymander,’ and to require the Legislature to form districts, not only of contiguous, but of compact or closely united, territory.” State ex rel. Barrett v. Hitchcock, 241 Mo. 433, 146 S.W. 40, 61 (1912). “[T]he provision requiring compactness of territory, subject, as it must be, to other more definitely expressed rules, may also, in application, be modified by the requirement of equality in population ... that ‘compactness, being of less importance, may, to some extent, yield in aid of securing a nearer approach to equality of representation.’ ” Id. at 61 (internal citations omitted).

A claim that a district lacks compactness following redistricting is justiciable. “[C]ourts have jurisdiction and authority to pass upon the validity of legislative acts apportioning the state into senatorial or other election districts and to declare them invalid for failure to observe non-discretionary limitations imposed by the Constitution.” Preisler v. Doherty, 365 Mo. 460, 284 S.W.2d 427, 431 (1955) ( Preisler I ); see also Barrett, 146 S.W. 40 (holding that the act of apportionment did not conform to the constitutional compactness requirement).

In Preisler v. Kirkpatrick, this Court articulated the appropriate standard of review for such claims in several different ways. Preisler v. Kirkpatrick, 528 S.W.2d 422 (Mo. banc 1975) ( Preisler III ). The Court upheld the redistricting map in that case, stating that the redistricting commission “made an honest and good faith effort ” in drawing the districts as compact as may be. Id. at 426 (emphasis added). In the next sentence, though, the Court said, “We also find, and hold, that considering the overall, state-wide plan developed by the Commission the districts established substantially comply with the compactness requirement.” Id. at 427 (emphasis added). Elsewhere in the opinion, Preisler III quotes Preisler I, in which the Court stated that the constitutional limitations must be “ wholly ignored and completely disregarded ” for a court to declare the act of redistricting unconstitutional. Id. at 426 (quoting Preisler I, 284 S.W.2d at 431) (emphasis added).

These standards are obviously inconsistent and most likely resulted in confusion below. Regardless of what language is used, three ideas are fundamental. First, redistricting is predominately a political question. Decisions must be made regarding a number of sensitive considerations to configure the various House districts. These maps could be drawn in multiple ways, all of which might meet the constitutional requirements. These decisions are political in nature and best left to political leaders, not judges. Second, compactness and numerical equality are mandatory. To the extent that they are achieved, numerous other constitutional problems are avoided. Third, compactness and numerical equality cannot be achieved with absolute precision. This is recognized by the “as may be” language used in article III, section 45.

While an appropriate standard of review must reflect deference to the predominate role of the General Assembly and the inability of anyone to draw compact districts with numerical precision, Missouri courts nonetheless must uphold the mandatory language of the constitution that the “districts shall be composed of contiguous territory as compact and as nearly equal in population as may be.” Mo. Const. art. III, sec. 45 (emphasis added). The protection of this constitutional provision applies to each Missouri voter, in every congressional district. “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live.” Burdick v. Takushi, 504 U.S. 428, 441, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) (internal citations omitted).

Both the “honest and in good faith” and the “completely disregard” standards resulting from the Preisler cases are subjective in nature. A subjective test is difficult to apply, especially in relation to the General Assembly, whose members' respective motives may be several and divergent. Equally troublesome is an attempt to apply a subjective test to a mandatory constitutional duty.

The “substantially comply” standard reflects the need to obey the constitutional requirements of contiguousness, compactness, and numerical equality. It also recognizes that allowance must be made for precision that cannot be obtained in absolute numerical equality. It does not, however, improve upon the language of article III, section 45.

Simply put, the applicable standard of review for a court...