State ex rel. Lockert v. Crowell

• Decision Date: 31 March 1982
• Citation: 631 S.W.2d 702
• Parties: STATE of Tennessee ex rel. W. B. LOCKERT, Jr., District Attorney General for the 21st Judicial Circuit and Tom P. Thompson, Jr., District Attorney General for the 5th Judicial Circuit, Bill Jim Davis, Cheatham County, and Wilson County, K. Dickson Grissom, Denis Dozier Haile, George H. Harding and Don Simpson, individually and in his official capacity as County Judge of Wilson County, Tennessee (and each as individual plaintiff as well as relator), Plaintiffs-Appellees, v. Gentry CROWELL, Secretary of State of the State of Tennessee; Lamar Alexander, Governor of the State of Tennessee; William M. Leech, Jr., Attorney General of the State of Tennessee; David Collins, Coordinator of Elections of the State of Tennessee; and James E. Harpster, Jack C. Seaton, Tommy Powell, Richard Holcomb, and Lytle Landers, Commissioner of the State Board of Elections, Defendants-Appellants. 631 S.W.2d 702
• Court: Tennessee Supreme Court

Page 702

631 S.W.2d 702

STATE of Tennessee ex rel. W. B. LOCKERT, Jr., District Attorney General for the 21st Judicial Circuit and Tom P Thompson, Jr., District Attorney General for the 5th Judicial Circuit, Bill Jim Davis, Cheatham County, and Wilson County, K. Dickson Grissom, Denis Dozier Haile George H. Harding and Don Simpson, individually and in his official capacity as County Judge of Wilson County Tennessee (and each as individual plaintiff as well as relator), Plaintiffs-Appellees, v. Gentry CROWELL, Secretary of State of the State of Tennessee; Lamar Alexander, Governor of the State of Tennessee; William M. Leech, Jr., Attorney General of the State of Tennessee; David Collins, Coordinator of Elections of the State of Tennessee; and James E. Harpster, Jack C Seaton, Tommy Powell, Richard Holcomb, and Lytle Landers, Commissioner of the State Board of Elections, Defendants-Appellants.

631 S.W.2d 702

Supreme Court of Tennessee, at Nashville.

March 31, 1982.

Robert T. Rochelle, Lebanon, Robert L. Perry, Jr., Ashland City, Henry Haile, Nashville, for plaintiffs-appellees.

Carol L. McCoy, Nashville, for amicus curiae, League of Women Voters of Tenn.

James E. Lanier, Dyersburg, for amicus curiae, Dyer County.

Robert B. Littleton, Sp. Asst. Atty. Gen., and Michael Catalano, Asst. Atty. Gen., Nashville, for defendants-appellants.

Richard H. Dinkins, Nashville, Jack Greenberg, James M. Nabrit, III, and Napoleon Williams, Legal Defense Fund New York City, for amicus curiae, Tennessee Voters Council and Unincorporated Ass'n by its General Chairman Avon N. Williams, Jr.

OPINION

DROWOTA, Justice.

This case comes to us on direct appeal ¹ from the Chancellor's grant of plaintiffs' motion for summary judgment. The primary question presented is the constitutionality of the Senate Reapportionment Act of 1981, ² which Act reapportioned the State Senate in response to the 1980 federal decennial census, as required by Art. II, § 4 of the Tennessee Constitution. The defendants cite as error the Chancellor's holding that the Act "contravenes Article II, § 6 of the Tennessee Constitution providing that no county shall be divided in forming a senate district, and the contravention of Art. II, § 6 is not necessary to meet the 'one person, one vote' requirement of the equal protection clause of the Fourteenth Amendment to the United States Constitution" and is therefore unconstitutional. The Chancellor also enjoined the defendants from conducting any primary or general election under the Act. For reasons set out below, we hold that this was not a proper case for summary judgment and we remand this cause to the trial court for further proceedings consistent with this opinion.

HISTORY AND BACKGROUND

The action was brought on November 17, 1981, by the following plaintiffs: the counties of Wilson and Cheatham, by their District Attorneys General; the Senator representing District 27 under the prior apportionment act, whose incumbency was in effect abolished by the Act; and citizens and registered voters of Bedford, Cheatham and Wilson Counties, one of whom was a Wilson County Commissioner and another of whom was Wilson County Judge and ex officio Chairman of the County Commission. The plaintiffs' standing to sue is not in issue. Defendants are the Secretary of State, Governor, Attorney General, Co-ordinator of Elections and Commissioners of the State Board of Elections.

The amended complaint alleged three causes of action. One of these was that in this reapportionment, district lines were redrawn and voters were transferred from odd to even numbered districts, and vice versa. The effect of this would be to preclude many voters from voting in a Senate race as frequently as every four years, contrary to Art. I, § 5 of the Constitution. The Chancellor held that this was a necessary by-product of reapportionment and did not violate the Constitution.

Another cause of action was that the Act violated Art. II, § 3 of the Constitution in failing to number districts consecutively in a county having more than one senatorial district. The Chancellor reserved this issue in view of his holding that the Act was unconstitutional for another reason and that the Senate districts must be redrawn.

The third, and principal, cause of action was that the Act clearly violated Art. II, § 6 of the Constitution, which reads:

The number of Senators shall be apportioned by the General Assembly among the several counties or districts substantially according to population, and shall not exceed one-third the number of Representatives. Counties having two or more Senators shall be divided into separate districts. In a district composed of two or more counties, each county shall adjoin at least one other county of such district; and no county shall be divided in forming such a district.

The emphasized phrase was in our original Constitution of 1796, and found in the subsequent Constitutions of 1835, 1870 and 1966.

The defendants moved for summary judgment based upon exhibits which showed that the Act complied with the "one person, one vote" requirements of the United States Constitution. Based upon population, the "ideal" district size of a 33-member Senate is 139,114, under the 1980 census. The greatest positive variance from this size was +.73%, and the greatest negative variance - .92%, for a total maximum variance of 1.65%. Thus, the plan was close to mathematical perfection. Defendants argued that if these requirements were met, there was no basis under the Tennessee Constitution on which to hold the Act invalid.

Plaintiffs filed a cross-motion for summary judgment based upon the complaint, certain stipulations by the parties, and affidavits. The stipulations included the following matters pertinent to the principal issue:

1. A map of the districts established under the Act.

2. A statement that the optimum district size for a 33-member Senate was 139,114.

3. Charts showing the population of each district under the Act, the population of each county and parts of counties in each district, the raw number and percentage variance of each district from ideal size, the total maximum variance, the distribution of variance, the average variance, and similar statistics agreed to be true.

4. A 30-member and a 31-member plan proposed by plaintiffs, which would not cross any county lines. The 30-member plan had an ideal district size of 153,025, and the total maximum variance was +4.46% and - 5.98%, or 10.44%. The 31-member plan had an ideal district size of 148,101, with a total maximum variance of 13.82%.

5. A 33-member plan which crossed the lines of only Shelby, Davidson, and Knox Counties. Hamilton County was divided into two districts, but no part thereof was joined in a district with any other county. The total maximum variance of this plan was stipulated to be 9.99%.

6. A stipulation as to the instructions given to Mr. Frank D. Hinton, Director of Local Government, Office of Comptroller of the Treasury, by the Senate for his guidance in preparing proposed reapportionment plans: "(a) that all districts should be as near to mathematical perfection as possible, but at the same time the districts should split as few counties as possible;" (b) that districts should keep the same numbers they had previously had, or at least their odd or even numbered status; and "(c) that, if possible, no two (2) incumbents in the State Senate should be placed in the same district."

The defendants filed the affidavit of Frank D. Hinton, addressing the difficulties of drawing a 33-member plan which did not cross county lines. It stated that the primary problem arose in the four metropolitan counties because their populations are not multiples of the ideal population of 139,114. A chart set out the percentages of variance for each of these counties if no county lines were crossed, from a low variance of +3.41% in Hamilton County to a high of +14.89% in Knox County. It concluded that since each of these variances was positive, with the lowest of the four figures being 3.41%, "some of the multi-county districts will have a negative variance from optimum district size. Attempts to draw such a thirty-three member plan result in a total gross variance (combining greatest positive and greatest negative variance) of over 22%." ³

The motions for summary judgment were argued February 9, 1982. On February 18, the Chancellor entered a Memorandum Opinion, and on February 23, his Decree.

In addition to the above-mentioned parties, the following have participated in the appeal from this Court as amici curiae: the League of Women Voters, the Tennessee Voters Council, and Dyer County through its County Attorney.

JUSTICIABILITY

A threshold issue decided by the Chancellor and appealed by the defendants is that the complaint presented a justiciable issue. The defendants charge that reapportionment is nonjusticiable because it is a political question and because it is a legislative function under the Separation of Powers Doctrine. They further argue that, should the courts declare the Act unconstitutional and the General Assembly fail to pass a constitutional act, the courts would be without power to grant the ultimate remedy of formulating their own reapportionment plan.

In view of the evolution in this area of constitutional law which has taken place since the United States Supreme Court's decision in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), we disagree, and affirm the Chancellor's holding that this is a justiciable issue. See Egan v. Hammond, 502 P.2d 856, 865 (Alaska 1972); Legislature of the State of California v. Reinecke, 10 Cal.3d 396, 110 Cal.Rptr. 718, 516 P.2d 6 (1973); White v. Anderson, 155 Colo. 291, 394 P.2d 333 (1964); Guntert v. Richardson, 47 Haw. 662, 394 P.2d 444, 449 (1964); Butcher v. Bloom, 415 Pa. 438, 203 A.2d 556, 559-560 (1964); Smith v. Craddick, 471 S.W.2d 375 (Tex.1971); In re Senate Bill 177, 130 Vt. 358, 294 A.2d...