Reapportionment Plan for Pennsylvania General Assembly, In re

• Decision Date: 13 October 1981
• Citation: 497 Pa. 525,442 A.2d 661
• Parties: In re REAPPORTIONMENT PLAN FOR the PENNSYLVANIA GENERAL ASSEMBLY filed by the Legislative Reapportionment Commission,
• Court: Pennsylvania Supreme Court

Page 661

442 A.2d 661

497 Pa. 525

In re REAPPORTIONMENT PLAN FOR the PENNSYLVANIA GENERAL

ASSEMBLY filed by the Legislative Reapportionment

Commission, October 13, 1981.

^*

W. D. Misc. Docket Nos. 331, 333, 337, 339, 342, 343, 346-348, 1981.

M. D. Misc. Docket Nos. 118 and 119, 1981.

E. D. Misc. Docket Nos. 535, 542, 556, 558, 584, 588, 590,

591, 594-597, 599, 601, 602, 605-607, 1981.

Supreme Court of Pennsylvania.

Argued Dec. 7, 1981.

Decided Dec. 29, 1981.

Reargument Denied Jan. 18, 1982 for Tilghman v. Legislative

Reapportionment Commission.

Rearguments Denied Jan. 29, 1982.

[497 Pa. 528] Larry B. Selkowitz, Camp Hill, Andrew S. Ross, Harrisburg, for Common Cause et al. in No. 118.

John H. Broujos, Carlisle, for William P. Feuchtenberger et al. in No. 119.

James W. Dunn, Jr., Pittsburgh, for J. Howard Womsley et al. in No. 333.

Samuel J. Reich, Terry L. Jordan, Pittsburgh, for Edward E. Stevens, etc., et al. in No. 331.

John R. Luke, Pittsburgh, for Samuel L. McPherson, etc., in No. 337.

Donald R. Walko, Jr., Pittsburgh, for Michael Dawida in No. 339; Michael Dawida, in pro. per.

Donald Lee, Pittsburgh, for John R. Bonassi et al. in No. 342.

George Pott, in pro. per.

Larry B. Selkowitz, Camp Hill, for Borough of Wesleyville in No. 346.

Timothy P. O'Reilly, Pittsburgh, for Borough of Glassport in No. 347.

James M. Burd, in pro. per.

Jeffrey L. Pettit, Perrin C. Hamilton, Philadelphia, for Richard A. Filghman in No. 535.

Harvey Bartle, III, Harrisburg, for Kathleen Brescia, etc., in No. 542.

Peter C. Paul, Philadelphia, for Chestnut Hill Community Ass'n et al. in No. 556.

Louis W. Fryman, William A. Meehan, Philadelphia, for Republican City Committee of Philadelphia, etc., et al. in No. 558.

James L. J. Pie, in pro. per., for Committee to Save the 189th Legislative Dist. et al. in No. 584.

P. Stephan Lerario, Philadelphia, for Mark Cohen et al. in No. 588.

Robert E. Paul, in pro. per.

Edward V. Schulgen, Philadelphia, for Committee for Fair Reapportionment, etc., in No. 594.

Ralph David Samuel, Philadelphia, for West. Mt. Airy Neighbors, Inc., in No. 595.

Robert J. Mulligan, Jr., Harrisburg, for Wilfredo P. Rojas et al. in No. 597.

Peter J. Rohana, Jr., Springfield, for Ridley Tp. et al. in No. 599.

William T. Smith, Harrisburg, Joseph McKenna, Pottsville, for Schuylkill County Republican Organization et al. in No. 601.

Gregory M. Harvey, Philadelphia, for Philip Price, Jr., et al. in No. 602.

Gregory M. Harvey, Philadelphia, Robert Sullivan, Jr., Lebanon, for Charles D. Snelling in No. 605.

John L. Butler in pro. per.

Paul E. Holl, Lansdale, for Edwin G. Holl, etc., in No. 607.

Thomas N. O'Neill, Jr., Philadelphia, for Legislative Reapportionment Commission.

Before O'BRIEN, C. J., and ROBERTS, NIX, LARSEN, FLAHERTY, KAUFFMAN and WILKINSON, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

These are consolidated appeals from the Final Legislative Reapportionment Plan, which was filed by the Pennsylvania Legislative Reapportionment Commission on October 13, 1981. For the reasons set forth, we hold that the reapportionment plan complies with all of the requirements of the United States Constitution and the Constitution of this Commonwealth.

The plan challenged on these appeals is the second reapportionment plan to be adopted by the Legislative Reapportionment Commission, which, since 1968, has been constitutionally vested with the obligation to reapportion the legislative districts of the Commonwealth "(i)n each year following that in which the Federal decennial census is officially reported." Pa.Const. art. II, § 17(a). ¹ Pursuant to the Constitution, the Commission consists of five members who act by majority vote: the majority and minority leaders of both the Senate and House of Representatives (or deputies appointed by each of them), and a chairman who is selected either by the other four members of the Commission or, if the four Commission members are unable to do so within the time prescribed, by this Court. Pa.Const. art. II, § 17(b). The present Legislative Reapportionment Commission, which consists of the majority and minority members of each house and a chairman selected by them, unanimously adopted the Final Legislative Reapportionment Plan now before this Court for review.

Appellants appeal pursuant to Pa.Const. art. II, § 17(d), which provides that "any aggrieved person may file an appeal from the final plan directly to the Supreme Court within thirty days after the filing thereof." Pursuant to that same constitutional provision, appellants have the burden of establishing "that the final plan is contrary to law." See Commonwealth ex rel. Specter v. Levin, 448 Pa. 1, 19, 293 A.2d 15, 24 (1972), appeal dism'd for want of substantial federal question, 409 U.S. 810, 93 S.Ct. 44, 34 L.Ed.2d 65 (1972). ²

I

The law which governs these appeals and circumscribes this Court's review of the Commission's Final Legislative Reapportionment Plan is set forth in Article II, Section 16 of the Pennsylvania Constitution and the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. In interpreting the Equal Protection Clause, the Supreme Court of the United States has repeatedly recognized that reapportionment "is primarily a matter for legislative consideration and determination." Reynolds v. Sims, 377 U.S. 533, 586, 84 S.Ct. 1362, 1394, 12 L.Ed.2d 506 (1964). Accord, e.g., Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973); Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973); Ely v. Klahr, 403 U.S. 108, 91 S.Ct. 1803, 29 L.Ed.2d 352 (1971); Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966). In addressing the limited, constitutional nature of judicial review of reapportionment matters, the Supreme Court of the United States has rejected a litigant's claim that a state reapportionment plan should be invalidated merely because the alternative plan proposed by the litigant is a "better" one:

"And what is to happen to the Master's plan if a resourceful mind hits upon a plan better than the Master's by a fraction of a percentage point? Involvement like this must end at some point, but that point constantly recedes if those who litigate need only produce a plan that is marginally 'better' when measured against a rigid and unyielding population-equality standard.

The point is, that such involvements should never begin. We have repeatedly recognized that state reapportionment is the task of local legislatures or of those organs of state government selected to perform it."

Gaffney v. Cummings, supra, 412 U.S. at 750-51, 93 S.Ct. at 2330. Thus, to prevail in their challenge to the final reapportionment plan, appellants have the burden of establishing not, as some of the appellants have argued, that there exists an alternative plan which is "preferable" or "better," but rather that the final plan filed by the Pennsylvania Reapportionment Commission fails to meet constitutional requirements.

The principle that reapportionment is a legislative function is evident from the plain language of this state's Constitution. Article II, Section 17(d) directs not only that the Legislative Reapportionment Commission file a reapportionment plan but also that, in the event a final plan is determined by this Court to be invalid, the plan be remanded to the Commission for a second attempt at reapportionment. ³ As this Court stated in Commonwealth ex rel. Specter v. Levin, 448 Pa. 1, 7, 293 A.2d 15, 17-18 (1972), the constitutional delegation of responsibility for reapportionment to the Legislative Reapportionment Commission is designed to retain "the Legislature's expertise in reapportionment matters."

II

The constitutional requirements which govern this Court's review are set forth in detail in Commonwealth ex rel. Specter v. Levin, 448 Pa. 1, 293 A.2d 15 (1972), where this Court reviewed, and sustained as constitutional, the 1971 reapportionment plan, the first to be effectuated under Article II, Section 16 of the Pennsylvania Constitution. In Specter, this Court made clear that the federal constitutional requirement of equal protection, which mandates " 'that a State make an honest and good faith effort to construct districts, in both houses of its Legislature, as nearly of equal population as is practicable,' " ⁴ is incorporated as a matter of state constitutional law in Article II, Section 16, which provides that districts be "composed of compact and contiguous territory as nearly equal in population as practicable...." In Specter, this Court also made clear that, as a matter of both federal and state law, equality of population must be the controlling consideration in the apportionment of legislative seats. As the Supreme Court of the United States has stated,

"the basic principle of representative government remains, and must remain, unchanged-the weight of a citizen's vote cannot be made to depend on where he lives. Population is, of necessity, the starting point for consideration and the controlling criterion for judgment in legislative apportionment controversies."

Reynolds v. Sims, 377 U.S. at 567, 84 S.Ct. at 1384 (footnote omitted).

The Final Legislative Reapportionment Plan reflects the Legislative Reapportionment Commission's adherence to the goal of equal population among legislative districts. When the population of the Commonwealth is divided by the 50 seats constitutionally mandated for the Senate and the 203 seats constitutionally mandated for the House of Representatives, the ideal district of "one person, one vote" is composed of 237,334 people for the Senate and 58,456 people for the House. ⁵ Under the final plan of the Legislative Reapportionment Commission, the range of deviation between the highest and lowest populated districts is only 1.9% from the ideal Senate district and 2.8% from the ideal House district. There is no doubt that this plan, which more nearly achieves the...