Senate Bill 177, In re, s. 73-72

• Decision Date: 02 April 1974
• Docket Number: Nos. 73-72,132-73 and 133-73,s. 73-72
• Citation: 132 Vt. 282,318 A.2d 157
• Parties: In re SENATE BILL 177. In re PUBLIC ACT 80. In re SENATE BILL 83.
• Court: Vermont Supreme Court

Page 157

318 A.2d 157

132 Vt. 282

In re SENATE BILL 177.

In re PUBLIC ACT 80.

In re SENATE BILL 83.

Nos. 73-72, 132-73 and 133-73.

Supreme Court of Vermont.

April 2, 1974.

Robert A. Bloomer, pro se.

Corsones & Griffin, Rutland, for Rutland County petitioners.

Kolvoord, Overton & Wilson, Essex Junction, for Chittenden County petitioners.

Harley Walter Kidder, pro se.

Matthew I. Katz, of Latham, Eastman, Schweyer & Tetzlaff, Burlington, for Chittenden County Democratic petitioners.

Kimberly B. Cheney, Atty. Gen., and Raymond L. Betts, Asst. Atty. Gen., on the brief, for State of Vermont.

Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.

PER CURIAM.

These cases involve reapportionment of the Vermont State Senate. The matter began with the legislative apportionment board which, after hearings and study, submitted a reapportionment plan of the Senate to that body. As authorized by 17 V.S.A. § 1907, it was treated as a bill and introduced. The committee to which it was referred amended it completely, and it became Senate Bill 177. This bill ultimately passed as No. 248 of the Public Acts of 1971 (Adjourned Session). As authorized by 17 V.S.A. § 1909, that law was challenged before this Court by a petition and found wanting. In re Senate Bill 177, 130 Vt. 358, 294 A.2d 653 (1972).

This Court retained jurisdiction under 17 V.S.A. § 1909(e) and sent the matter back for reconsideration by the legislative apportionment board. A second proposal was then forthcoming which was also rejected. In re Senate Bill 177, 130 Vt. 365, 294 A.2d 657 (1972). The board was then directed to formulate a new plan and submit it to the legislature when it convened for its 1973 session; the Court again retained jurisdiction.

This was done. In lieu of the plan submitted, the legislature adopted Senate Bill 83, which has now been adopted as No. 80 of the Public Acts of 1973. This law was the subject of new petitions for review under 17 V.S.A. § 1909(d), and the issue of reapportionment of the Senate is once more before us, to be considered in the light of the facts reported by the master and the content of No. 80 of the Public Acts of 1973.

This Court's duty with respect to review and disposition is spelled out by statute, 17 V.S.A. § 1909(b) and (f):

(b) The sole grounds of review to be considered by the supreme court shall be that the apportionment plan, or any part of it, is unconstitutional or violates section 1903 of this title.

(f) The review provided in this section shall be the original and exclusive review of legislative apportionment in the courts of this state.

The legislative limits on review underscore the fact that the business of reapportionment, including the selection of alternatives, is a legislative function. Review by this Court will be limited to testing the reapportionment by the appropriate constitutional and statutory standards, even in the presence of alternatives which give the appearance of better representation. In re Senate Bill 177, 130 Vt. 358, 361, 294 A.2d 653 (1972).

The reapportionment plan represented by No. 80 of the Public Acts of 1973 sets up districts from which senators shall be elected as follows:

Addison County plus the towns of Benson, Brandon and Sudbury of Rutland County, population 28,799, two senators-14,399 per senator; Bennington County plus the town of Whitingham of Windham County, population 30,293, two senators-15,147 per senator; Caledonia County minus the town of Newark, plus the towns of Bradford, Newbury, Topsham and West Fairlee of Orange County and the town of Woodbury of Washington County, population 27,134, two senators-13,567 per senator; Chittenden County minus the town of Colchester, population 90,355, six senators-15,059 per senator; Essex County-Orleans County minus the town of Craftsbury, plus the towns of Newark of Caledonia County and the town of Richford of Franklin County, population 27,197, two senators-13,599 per senator; Franklin County minus the towns of Georgia and Richford, population 27,455, two senators-13,727 per senator; Grand Isle County plus the town of Georgia of Franklin County and Colchester of Chittenden County, population 14,061, one senator; Lamoille County plus the town of Craftsbury of Orleans County, population 13,941, one senator; Orange County minus the towns of Bradford, Newbury, Topsham, and West Fairlee, population 13,586, one senator; Rutland County minus the towns of Benson, Brandon and Sudbury, population 48,104, three senators-16,025 per senator; Washington County minus the town of Woodbury, population 47,260, three senators-15,753 per senator; Windham County minus the towns of Grafton and Whitingham, population 32,000, two senators-16,000 per senator; and Windsor County plus the town of Grafton of Windham County, population 49,547, three senators-14,849 per senator.

The Vermont Constitution, Chapter II, Section 18, sets out the state standards for a representative senate:

The Senate shall be composed of thirty Senators, to be of the freemen of the county for which they are elected, respectively, who shall have attained the age of thirty years, and they shall be elected biennially by the freemen of each county respectively.

The Senators shall be apportioned to the several counties, according to the population, as ascertained by the census taken under the authority of Congress in the year 1910, regard being always had, in such apportionment, to the counties having the largest fraction, and each county being given at least one Senator.

The Legislature shall make a new apportionment of the Senators to the several counties, after the taking of each census of the United States, or after a census taken for the purpose of such apportionment, under the authority of this State, always regarding the above provisions of this section.

The specific requirements critical to this litigation, already mentioned in In re Senate Bill 177, supra, 130 Vt. at 362, 294 A.2d 653, include (1) a thirty-member senate, (2) that the senators be freemen of the county for which they are elected, (3) that the senators have attained the age of thirty years and be elected, biennially by the freemen of their respective counties, (4) that they be apportioned to the several counties according to population, and (5) that each county be given at least one senator.

But state reapportionment is subject also to Federal guidelines, and where there is conflict, not only statutory directives but Vermont constitutional provisons must yield to the Supremacy Clause, Buckley v. Hoff, 234 F.Supp. 191 (D.Vt.1964), aff'd sub nom. Parsons v. Buckley, 379 U.S. 359, 85 S.Ct. 503, 13 L.Ed.2d 352 (1965). As that case states, the standards of the Equal Protection Clause must be met by any Vermont reapportionment plan. With respect to the State Senate, representation on the basis of population is a paramount state requirement. Mikell v. Rousseau, 123 Vt. 139, 148, 183 A.2d 817 (1962). The Buckley case overrode the requirement of a minimum of one senator per county and authorized the combining of counties which became part of our statutory law in 17 V.S.A. § 1907.

From these cases and others in the reapportionment area, it is clear that the key demand of the Equal Protection Clause relates to representation founded on a balanced population base. Reynolds v. Sims, 377 U.S. 533, 577, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). Other considerations such as giving each county as presently established at least one senator, or maintaining the integrity of counties as senatorial districts have had to yield. See Buckley v. Hoff, supra.

This is because the legislature has elected to stay with the thirty-senator membership requirement. In any apportionment related to population, itself a variable, it is possible to maintain both geographic areas and numbers of representatives constant only under fortuitive circumstances involving improbable coincidences, or in a totally stagnant situation. Vermont is not stagnant, and the facts of population do not fit a situation allowing fidelity to all factors. Some must yield. In the present reapportionment the legislature has elected to breach county lines, while maintaining the integrity of town units.

Having in mind the history of Vermont, first beginning as a group of chartered towns that welded themselves toghether first as an independent nation, then, fourteen towns that welded themselves together first that the integrity of individual towns be held of high importance. In a very real sense, in Vermont, the state itself is a creation of the towns. Our early constitutional history demonstrates how carefully the towns guarded their control over their creation, and probably accounts for the 'one town-one vote' of our early General Assemblies. It was assumed that all towns had a common and equally measured interest in protecting themselves from any centralization of power in state hands. The towns paid the state bills by levies against their grand lists and labored in the legislature to...