Scholle v. Hare, No. 173
| Court | Supreme Court of Michigan |
| Writing for the Court | KAVANAGH; Butzel; Morse; McGrath; Briefly summarized this act authorized the management of any publicly maintained institution of the State; SMITH; SOURIS, J., concurred with SMITH; EDWARDS; BLACK; CARR; DETHMERS and KELLY, JJ., concurred with CARR |
| Citation | 360 Mich. 1,104 N.W.2d 63 |
| Decision Date | 06 June 1960 |
| Docket Number | No. 173 |
| Parties | August SCHOLLE, Plaintiff, v. James M. HARE, Secretary of State of the State of Michigan, Defendant, and Frank D. Beadle at al., Intervening Defendants. Motion |
Page 63
v.
James M. HARE, Secretary of State of the State of Michigan, Defendant,
and
Frank D. Beadle at al., Intervening Defendants.
[360 Mich. 3] Rothe, Marston, Mazey, Sachs & O'Connell, by Theodore Sachs, Detroit, for plaintiff.
Paul L. Adams, Atty. Gen., Samuel J. Torina, Sol. Gen., Lansing, Stanton S. Faville, Chief Asst. Atty. Gen., G. Douglas Clapperton, Leon S. Cohan, Asst. Attys. Gen., for defendant.
Edmund E. Shepherd, Lansing, for intervening defendants.
Jerome H. Brooks, Erwin B. Ellmann, Bruce A. Miller, Detroit, Harold Norris, Detroit, of counsel, for Metropolitan Detroit Branch American Civil Liberties Union, amicus curiae.
Sheldon L. Klimist, Detroit, Sheldon Otis, LuVerne Conway, Detroit, of counsel, for Detroit Chapter, Americans for Democratic Action, amicus curiae.
Before the Entire Bench.
KAVANAGH, Justice.
This is an original action of mandamus challenging various amendments to the Michigan Constitution (1908) as being violative of the equal protection provision of the Michigan Constitution (1908), art. 2, § 1, and of the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution. 1
[360 Mich. 4]
Page 64
Plaintiff, a citizen of the United States and of the State of Michigan, resides in the Michigan 12th senatorial district and is a qualified elector therein. He is a taxpayer and freeholder of the city of Royal Oak, Oakland county, Michigan. Plaintiff brings this suit individually and as president of the Michigan State AFL-CIO.The original defendant is the Michigan Secretary of State, who as such, is the chief election official of the State of Michigan. Among the duties the Secretary of State is required to perform are:
(1) Giving notices of election of State senators. 2
(2) Receiving nominating petitions or filing fees of candidates for State offices, including State senators in districts comprising more than one county. 3
(3) Certifying the names of candidates who have duly filed for nomination. 4
(4) Issuing certificates of election to candidates, including State senators in districts comprising more than one county. 5
By order of the Court, Frank D. Beadle, a State senator, and Albert K. Blashfield, a citizen, were added as parties defendant in the cause. John W. Cummiskey, a citizen, John W. Fitzgerald and Paul C. Younger, State senators, were permitted to intervene pursuant to the provisions of C.L.1948, § 612.11 (Stat.Ann. § 27.663).
Plaintiff seeks:
(1) A declaration by this Court that Proposition No. 3 of the general election of November, 1952, was [360 Mich. 5] an invalid amendment to the Michigan constitution (1908), art. 5, §§ 2 and 4, insofar as the Michigan senate is concerned, in that it denies plaintiff and other citizens of Michigan equal protection of the law and the due process of law under the Fourteenth Amendment to the United States Constitutional and the Michigan Constitution (1908), art. 2, § 1.
(2) A declaration by this Court that there exists no valid senate apportioning or districting act extant in pursuance of the Michigan Constitution (1908), art. 5, §§ 2 and 4, as unamended.
(3) A peremptory writ of mandamus out of and under the seal of this Court, commanding the defendant Secretary of State not to issue 1960 election notices for State senators, nor to otherwise perform those acts requisite to the holding of elections for State senators according to the districts prescribed by the Michigan Constitution (1908), art. 5, §§ 2 and 4, as colorably amended by Proposition No. 3 of the general election of November, 1952, and by Act No. 77 of the Public Acts of 1953 6, adopted pursuant thereto, and until such time as the Michigan legislature enacts valid legislation reapportioning the State senatorial districts in accordance with the Michigan Constitution (1908), art. 5, §§ 2 and 4, as unamended, and the last Federal decennial census.
(4) The retaining of jurisdiction of this cause by this Court following such determination and the issuance of a writ of mandamus pending an opportunity for the enactment of timely, valid reapportionment legislation by the present Michigan legislature, on failure of which the defendant Secretary of State further be directed to declare and conduct the 1960 election for State senators on an at-large basis and to
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take all necessary and appropriate steps therefor, the at-large method only to continue until [360 Mich. 6] such time as the Michigan legislature enacts legislation reapportioning the State senatorial districts pursuant to the Michigan Constitution (1908), art. 5, §§ 2 and 4, as unamended, and in accordance with the last Federal decennial census.Plaintiff's petition sets forth that the Michigan Constitution (1908), art. 5, §§ 2, 3 and 4, respecting legislative districting and apportionment was colorably amended by Proposition No. 3 7 in the general [360 Mich. 7] election held November 4, 1952. Among other
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things, the 1952 amendment increased the size of [360 Mich. 8] the senate from 32 to 34 members, to be elected from single member districts identical, except as to two changes, with the pre-amendment districts. Further, Proposition No. 3 as to senate apportionment abandoned the decennial reapportionment on a population basis previously required and thereby perpetually froze such existing districts, no matter what great changes or disparities of population might thereafter take place throughout the State (as they actually have since 1952).The petition also sets forth that the districts in effect frozen in the 1952 amendment were established in 1925 by Act No. 291 of the Public Acts of 1925 8 in rough reliance upon the 1920 Federal decennial census.
The petition states that despite the requirement of previous constitutional provisions 9 the legislature[360 Mich. 9] neglected and failed
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its decennial reapportionment duty so that, at the time of the 1952 election, there existed variations exceeding 8 to 1 in district population, for example, 61,000 persons in the 32d district (Baraga, Keweenaw, Houghton, and Ontonagon counties) as compared to 544,000 in the 18th district (Wayne county) and 530,000 in the then 12th district (Oakland and Washtenaw counties).The petition points out that on the basis of projected 1960 figures, plaintiff's district will have 724,000 persons, while the smallest, the 32d district, will have only 49,000, a variance of 15 to 1. Similar projections for 1970 show an average district population of 298,000 persons, with the largest, the 12th district, to have 1,056,000. and the smallest, the 32d district, to have but 41,000 persons, a variance of 25 to 1.
Plaintiff further alleges, and it is not denied by any of the defendants, that in the 1958 election 12 senators were elected from primarily urban areas in which the average population of the districts was 266,118 (according to the 1950 census figures) to represent 3,193,417 people. Twenty-two senators were elected from districts of average population of 144,470, or slightly more than half as large, to represent fewer people, a total of 3,178,349. Accordingly, less than half of the population of the State thereby gained control of almost 2/3 of the Michigan senate.
[360 Mich. 10] The petition illustrates that the net effect of all the foregoing is that the plaintiff's vote and right of representation in the Michigan senate (according to 1960 projections) is but 1/15 of those voting and representation rights of a citizen in the 32d district.
It is further disclosed that the districts under Proposition No. 3 have no correlation between size and representation. It is shown by exhibit that the average district size is 1,677 square miles, the Wayne county district average size is 86.7 square miles, while the 28th and 30th districts are 63 and 90 times as large, being respectively 5,471 and 7,832 square miles. Plaintiff further points out that other districts vary drastically in size and that actually districts side by side (presumably having thereby comparable regional characteristics) have similar great variations in area and in population.
Finally, plaintiff shows that no uniform correlation between district dize and political units exists. Plaintiff contends that the method of division of senatorial districts is palpably arbitrary and capricious and has no criterion to determine the relationship of one district to another.
Plaintiff alleges that by virtue of the above stated facts he is denied equal protection of the law and due process of law under the Fourteenth Amendment to the United States Constitution and under the Michigan Constitution (1908), art. 2, § 1. He asks a declaration that the 1952 amendment be declared invalid and inoperative, and seeks this relief through writ of mandamus.
Defendant Secretary of State answers the petition saying:
(1) The relief sought by plaintiff requires solution of a political issue which cannot be resolved by judicial decision.
[360 Mich. 11] (2) Senatorial districting on a basis of area does not deny a republican form of government.
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(3) The equal protection of the laws provision of the Fourteenth Amendment to the United States Constitution is not violated, since----
(a) There is no discrimination within a unit;
(b) Area representation is proper and valid;
(c) The Negro voting cases do not apply to the question; and
(d) Constitutions of States seeking admission to the Union, and providing for legislative apportionment on some basis other than population, have been approved by Congress and the President subsequent to the adoption of the Fourteenth Amendment to the United States Constitution.
(4) The due process clause of the Fourteenth Amendment to the United States Constitution is not violated as----
(a) Area representation does not violate the due process clause of the United...
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