Reapportionment of Colorado General Assembly, In re

• Decision Date: 19 February 1982
• Docket Number: No. 82SA6,82SA6
• Citation: 647 P.2d 191
• Parties: In re REAPPORTIONMENT OF the COLORADO GENERAL ASSEMBLY.
• Court: Colorado Supreme Court

Page 191

647 P.2d 191

In re REAPPORTIONMENT OF the COLORADO GENERAL ASSEMBLY.

No. 82SA6.

Supreme Court of Colorado, En Banc.

Feb. 19, 1982.

Rehearings Denied March 1, 1982.

Ralph A. Cole, Denver, pro se objector.

Gerald Dahl, Frisco, and Arnold Alperstein, Alperstein, Alperstein & Forman, P. C., Denver, for certain residents of Eagle, Grand, Jackson, Pitkin, Routt, Summit, Boulder, Gilpin, Jefferson and Clear Creek Counties.

Jac K. Sperling, Denver, for Raymond Bullock (Jefferson County Resident) and Jeanette Scotland (Boulder County Resident).

Gary Sandblom, Denver, for Michael T. Rabb and Jay Brizie (Boulder County Residents).

James R. Stitt, Rodney R. Nowadzky, Stitt, Wittenbrink & Nieman, Westminster, for City of Westminster.

Wyatt B. Angelo, Russell, Angelo & Wright, P. C., Gunnison, for Consolidated Gunnison County Group.

Charles M. Dosh, Denver, for Thomas P. Briggs and William G. DeGroot (Denver County Residents).

Stephen Davis, Denver, for Rae Hilbert and Kathryn L. Pride (Denver County Residents).

Durant D. Davidson, La Junta, for Consolidated Otero County Group.

Cile Pace, Asst. County Atty., Jefferson County, for Norman C. Allen, Jefferson County Clerk and Recorder.

Alfred J. Romano, Chairman, Larimer County Republican Party, Daniel A. Campbell, Jesse T. and Anne M. Kelsey, Eldorado Estates Homeowners Ass'n, Inc. (Jeffrey Waller, Acting President), Charles L. Dunahue, Republican Captain, Dist. No. 1, Katherine E. Lillich, Republican Captain, Dist. No. 1, Lucio Rodriguez, Republican Captain, Dist. No. 2, Edna Shellhammer, Republican Captain, Dist. No. 2, Robert W. Terry, Phillip and Barbara Fresquez, Lila D. Greaves, pro se protestors.

Jon L. Holm, Holm & Christensen, Leonard M. Campbell, Gorsuch, Kirgis, Campbell, Walker & Grover, Denver, for Colo. Com'n on Reapportionment.

PER CURIAM.

The sections of the Colorado Constitution establishing a system for reapportionment of the General Assembly to reflect population changes in the 1980 federal census require us to review the reapportionment plan. Colo.Const. Art. V, §§ 46, 47 and 48. ¹ We conclude that the plan adopted by the Colorado Reapportionment Commission (Commission) ² complies with the criteria in Colo.Const. Art. V, §§ 46 and 47. However, a portion of the plan which establishes the sequence of elections in Senate Districts 13 and 34 does not conform to constitutional requirements, and we disapprove that portion.

The paramount criterion for testing the constitutional sufficiency of a reapportionment plan is substantial equality of population among the senate districts and among the house districts ³ as required by Colo.Const. Art. V, § 46:

The state shall be divided into as many senatorial and representative districts as there are members of the senate and house of representatives respectively, each district in each house having a population as nearly equal as may be, as required by the constitution of the United States, but in no event shall there be more than five percent deviation between the most populous and the least populous district in each house. ⁴

Colo.Const. Art. V, § 47 contains three additional criteria for evaluating the composition of legislative districts. Section 47(1) provides in part: "Each district shall be as compact in area as possible and the aggregate linear distance of all district boundaries shall be as short as possible." ⁵ In Acker v. Love, 178 Colo. 175, 496 P.2d 75 (1972), "compact" is defined:

Compactness as used in the constitutional sense ... concerns a geographic area whose boundaries are as nearly equidistant as possible from the geographic center of the area being considered, allowing for variance caused by population density and distribution, census enumeration districts, and reasonable variations necessitated by natural boundaries and by county lines.

496 P.2d at 76.

Section 47(2) provides in pertinent part:

Except when necessary to meet the equal population requirements of section 46, no part of one county shall be added to all or part of another county in forming districts. Within counties whose territory is contained in more than one district of the same house, the number of cities and towns whose territory is contained in more than one district of the same house shall be as small as possible.

By its express language, section 47(2) subordinates the importance of not dividing counties to the substantial equality of population mandate of section 46. See generally Lucas v. Fourty-Fourth General Assembly of Colorado, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964) (state constitutional provision apportioning state senate based on factors other than population violated 14th amendment equal protection clause).

The final test for the constitutional adequacy of legislative districts is the communities of interest standard in Colo.Const. Art. V, § 47(3):

Consistent with the provisions of this section and section 46 of this article, communities of interest, including ethnic, cultural, economic, trade area, geographic, and demographic factors, shall be preserved within a single district wherever possible.

The language "Consistent with the provisions of this section and section 46 ..." as a preface to the communities of interest test in section 47(3) clarifies that maintenance of communities of interest is the least weighty of the requirements in sections 46 and 47.

Our role in this proceeding is a narrow one: to measure the present reapportionment plan against the constitutional standards. ⁶ The choice among alternative plans, each consistent with constitutional requirements, is for the Commission and not the Court. We emphasize, however, that a basic purpose of the constitutional standards is to assure equal protection for the right to participate in the Colorado political process and the right to vote. See Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Lucas v. Forty-Fourth General Assembly of Colorado, supra. Testimony before the Commission justifying districts of unequal population would not shield a plan allowing unequal districts from judicial invalidation; deference to Commission expertise and judgment would be inappropriate in such a case.

We recognize the difficulty the Commission faces in complying simultaneously with multiple constitutional criteria which may conflict in application. When the greatest potential for conflict exists, the constitutional provisions explicitly note which criterion takes precedence. Thus, Colo.Const. Art. V, § 47(2) makes the prohibition against splitting counties subordinate to the requirement of section 46 that each legislative district have equal population. Likewise, section 47(3) makes clear that the preservation in a single district of discrete communities of interest is of lesser import than the other criteria of sections 46 and 47. We also recognize that the criteria of sections 46 and 47 are to be viewed as a whole, as a set of firm but general guidelines which allow the Commission some discretion in application. With these general considerations in mind, we review the Commission's plan. Objections to the plan and proposed alternate plans were submitted in accord with our procedural rules; however, we do not limit our review of the plan to the districts which were the subject of specific objections.

I.

Initially, we consider a general objection that the plan is void because the preliminary reapportionment plan was not published as required by Colo.Const. Art. V, § 48(1)(e), which provides in pertinent part:

Within ninety days after the commission has been convened or the necessary census data are available, whichever is later, the commission shall publish a preliminary plan for reapportionment of the members of the general assembly and shall hold public hearings thereon in several places throughout the state within forty-five days after the date of such publication.

(Emphasis added.)

The affidavit of the Commission's staff director reflects that the Commission held 19 local and regional hearings and two statewide hearings on the preliminary plan between November 2, 1981 and December 7, 1981. Two weeks or more before each hearing, the Commission mailed a hearing schedule and relevant local and statewide maps showing the proposed new legislative districts to the affected county clerks and recorders, Democratic and Republican county chairpersons, and newspapers and radio stations serving the areas in which the hearings were to be held. Technical descriptions of the proposed districts also were sent to clerks and recorders and party chairpersons. The Commission issued press releases announcing the hearings and soliciting public comment on the preliminary plan. Thereafter, the Commission held its hearings and received public comment.

The constitutional provision does not specify any particular method of publication of the preliminary plan. When newspaper publication is contemplated, the constitution makes it clear, directly or by reference. See Colo.Const. Art. V, § 1; Colo.Const. Art. XIX, § 2; Colo.Const. Art. XXIII, § 1; Colo.Const. Art. XX, §§ 4, 5. In other cases, when newspaper publication is not specified, a reference to publication will not necessarily require a legal notice in a newspaper. See Colo.Const. Art. XVIII, § 8; Colo.Const. Art. V, § 13.

We conclude that the word "publish" in Colo.Const. Art. V, § 48(1)(e) has its commonly understood meaning, i.e., "to declare," "to make generally known," "to make public announcement of," "to place before the public," Webster's Seventh New Collegiate Dictionary ; "to make public; to circulate; to make known to people in general," Black's Law Dictionary (rev. 4th ed. 1968). The purpose of publication of the preliminary plan is to make the public aware of the plan and to encourage comment to the Commission about it. The Commission's notice procedure and dissemination of the preliminary plan was sufficient to "publish" it in compliance with Colo.Const. Art....