Senate Bill 177, In re, 73-72

• Decision Date: 28 July 1972
• Docket Number: No. 73-72,73-72
• Citation: 130 Vt. 365,294 A.2d 657
• Parties: In re SENATE BILL 177.
• Court: Vermont Supreme Court

Page 657

294 A.2d 657

130 Vt. 365

In re SENATE BILL 177.

No. 73-72.

Supreme Court of Vermont.

July 28, 1972.

Reargument Denied Aug. 16, 1972.

Philip H. Hoff, and Karen McAndrew of Wick, Dinse & Allen, Bulington, for petitioners.

James M. Jeffords, Atty. Gen., and Martin K. Miller, Asst. Atty. Gen., for petitionees.

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

PER CURIAM.

Responding to the petition in the above entitled matter challenging the reapportionment of the Senate of the General Assembly of the State of Vermont as provided for in Senate Bill 177, following argument before this Court, an opinion was rendered and filed July 13, 1972, wherein it was determined that Senate Bill 177 did not meet constitutional standards. Vt., 294 A.2d 653. The opinion was certified to the Legislative Apportionment Board with directions that the plan of reapportionment be modified in accordance with the views therein expressed and that the board's report be submitted to this Court not later than two weeks from the date of such mandate.

Jurisdiction of the cause was retained by this Court as provided for by 17 V.S.A. § 1909(e). The report and plan of the Legislative Apportionment Board was filed on the 26th day of July 1972, and reads as follows:

'PLAN OF LEGISLATIVE APPORTIONMENT BOARD

The Legislative Apportionment Board presents the following under and pursuant to the order of the Vermont Supreme Court filed on July 13, 1972, in the above entitled cause for the apportionment of the Vermont Senate:

(1) The court retains jurisdiction over this cause;

(2) The court orders the next session of the Vermont General Assembly to reapportion the Vermont Senate according to law, including 17 V.S.A., Chapter 34A;

(3) The 1972 elections for Vermont Senators proceed in accordance with a plan for apportionment to be as follows-

                                                      Number of
                        Senatorial District           Senators
                        -------------------           ---------
                Addison County plus towns of Brandon
                  and Pittsford                           2
                Bennington County                         2
                Caledonia County plus the towns of
                  Newbury, Topsham, Orange and
                  Corinth                                 2
                Chittenden and Grand Isle Counties        7
                Essex and Orleans Counties                2
                Franklin County                           2
                Lamoille County                           1
                Orange County less towns of Newbury
                  Topsham, Orange and Corinth             1
                Rutland County less towns of Brandon
                  and Pittsford                           3
                Washington County                         3
                Windham County                            2
                Windsor County                            3
                

(4) The present view of the Board is that such plan as it may develop for further consideration by the Court or by the General Assembly for apportionment of the Vermont Senate from the end of its next session to the session to be held according to the 1980 apportionment, shall be on the basis of the establishment of single-senator districts whether practicable.'

The plan as submitted is lacking in unanimity as appears from the following dissents of three of its members which were annexed to the report. One dissent is to the establishment of the Addison-Rutland Senatorial Districts. A second dissent is to the establishment of the Calegonia-Orange Senatorial Districts. The chairman of the board dissented in two aspects of the Plan submitted to this Court as follows:

'First, it is my view that while the Court has ordered the Board to prepare and present a plan to it by July 27, 1972, it has not, by that order, indicated that the plan must become effective in advance of the 1973 session of the Legislature nor that it be effective for that session. Time is thereby afforded to the Board during which it might conduct additional and more extensive hearings and carry out further and other investigations of the necessary factual background whereby the assignment of Senators on an equal-representation basis might be more satisfactorilly (sic) and properly made. A plan so developed might very well become law under 17 V.S.A. 1909(e) in time for a special election to be held for purposes of electing members of the Senate for the 1973 session.

Secondly, I do not agree that county lines should be breached simply for purposes of obtaining a more satisfactory mathematical result to be embodied in the temporary plan. If and where and when districts must be established in lieu of counties for purposes of senatorial representation, decisions in that regard should be made only after more extensive factfinding and opinion-gathering activities have been carried on by the Board.'

Further, in his letter of transmittal, the chairman wrote as follows:

'Comments heard at the hearing included proposals for single senator districts, multi-senator districts, a combination of those two types of districts, objections to the suggestion of the Supreme Court for apportioning the Senate which was included in its recent opinion, desires for hearings at various places in the state to be conducted by the Legislative Apportionment Board, desires for delaying the finalizing of apportionment plans and concerns for what many persons characterized as disenfranchisement and lack of communication or responsibilities which might result from apportioning the Senate through or by the assignment of a number of senators to larger areas.'

From the foregoing it becomes apparent that we, at least for the time being, are confronted with one of two choices. First, accept the plan of the board for the sole and limited purpose under which the 1972 Senate election is to be held, or, secondly, permit the election to proceed under the plan set forth in S. 177. S. 177 reads as follows:

'Counties may elect senators as follows: Addison, two; Bennington, two; Caledonia, tow; Chittenden, six; Essex and Orleans combined, two; Franklin and Grand Isle combined, two; Lamoille, one; Orange, one; Rutland, four; Washington, three; Windham, two; Windsor, three.'

In the opinion of this Court filed on July 13, 1972, we realized the press of time would make it difficult for the board to develop a plan which could be implemented in an orderly fashion in time for this year's senatorial elections. For this reason we suggested to the board it consider reducing the membership of the Senate by one while creating senatorial districts observing the established county lines which would have resulted in a minimal disruption of our...